September 2006

CONVENTION AGAINST TORTURE CHECK-LIST 1
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I.

Although applications for CAT protection and asylum and withholding of removal under the
INA are often paired due to the mechanics of the application (the same application form [I-589]
is used to apply for all three forms of protection), they are separate forms of protection and
must be considered separately.
Similar to withholding of removal under the INA, protection under the Convention Against
Torture ("CAT") is forward looking. Unlike asylum and withholding of removal under the INA,
however, (1) there is no requirement that the prospective torture be on account of a protected
ground, and (2) generally, the torturer must be the government, or must have acted at the
government's instigation or with its consent or acquiescence.
Similar to withholding of removal under the INA, CAT protection affects only the applicant's
removal - there are no provisions for derivative status or permanent residency.
PROCEDURAL REQUIREMENTS AT THE AGENCY LEVEL

___ A. Was the request for CAT protection timely?
If the final order of removal was entered before March 22, 1999, the applicant must have filed a
motion to reopen to apply for CAT protection before June 21, 1999. 8 C.F.R. § 1208.18(b)(2)(i);
Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001); Guo v. U.S. Dept. of Justice, 422 F.3d 61 (2d
Cir. 2005). (Other time and numerical limitations on motions to reopen do not apply to MTRs to
request CAT protection filed before June 12, 1999, nor does the MTR requirement that the evidence
in question be previously unavailable and undiscoverable. 8 C.F.R. § 1208.18(b)(2).) An application
filed after that date may be considered if the basis of the claim for protection is changed country
conditions. 8 C.F.R. §§ 1003.23(b)(4)(i) & 1208.18(b)(2); see also Alam v. Gonzales, 438 F.3d 184,
186-88 (2d. Cir. 2006). Such a motion must be timely in light of the claimed change. See, e.g., 8
C.F.R. § 1208.4(a)(4)(ii).

___ B. If the applicant was or remains in immigration court proceedings, did the applicant
request CAT consideration?
If not, IJ is required to consider sua sponte where the applicant is ineligible for asylum under INA §§
208(a)(2) or (b)(2), 8 U.S.C. 1158(a)(2) or (b)(2), and the evidence indicates possible torture in
country of removal. See 8 C.F.R. § 1208.13(c)(1).

II. JUDICIAL REVIEW
___ A. Does the Court have subject matter jurisdiction?
___ 1.

Is this a petition for review of a removal order in the court of appeals?

1

For a detailed look at the history of the U.S. ratification of the CAT, including agreements,
reservations, and reports, see Auguste v. Ridge, 395 F.3d 123, 129-34 (3d Cir. 2005).

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A court of appeals has subject matter jurisdiction over CAT claims where the petitioner
requests review of a final order of removal pursuant to INA § 242, 8 U.S.C. § 1252. See the
Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub. L. No. 105-277, Div.
G, § 2242(b), 112 Stat 2681 (Oct. 21, 1998); 8 C.F.R. § 1208.18(e); Khourassany v. INS, 208
F.3d 1096, 1099 n.4 (9th Cir. 2000); Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001).

___ 2.

Is this a petition for habeas corpus?
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat 231, 302 ("REAL ID Act")
precludes district court jurisdiction over habeas petitions seeking review of a final order
of removal, other than an expedited removal order under INA § 235(b)(1). See INA §
242(a)(4), 8 U.S.C. § 1252(a)(4); see generally, Chen v. U.S. Dept. of Justice, 434 F.3d
144,151-55 (2d Cir. 2006); Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir. 2005).

___B. Are there procedural defaults that preclude jurisdiction?
___ 1.

If a BIA appeal was pending when the regulations were published, did the applicant file a
motion to remand for CAT consideration?
If not, claim may not be exhausted. See INA § 242(d)(1), 8 U.S.C. 1252(d)(1).

___ 2.

If the application was denied by the IJ, did the alien include argument on the denial of CAT
protection in his or her appeal to the Board?
If not, the claim is not exhausted. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); see also Mendoza
v. U.S. Attorney General, 327 F.3d 1283, 1286 n.3 (11th Cir. 2003).

___ 3.

If the application was made in a Motion to Reopen, is the alien appealing specifically from
the agency’s final disposition of that motion and application?
If not, the court lacks jurisdiction over the claim. See Stone v. INS, 415 U.S. 386, 405 (1995);
Wu v. INS, 436 F.3d 157, 164 (2d Cir. 2006) .

___ 4.

Does the applicant’s petition for review fall within one of the criminal bars to jurisdiction?
Jurisdictional bars, such as the one for criminals at INA § 242(a)(2)(C), preclude jurisdiction
over CAT claims to the same extent as over claims for other remedies. See Hanan v.
Gonzales, 449 F.3d 834, 837 (8th Cir. 2006); Hamid v. Gonzales, 417 F.3d 642, 647-48 (7th
Cir. 2005). Attacks on an agency determination that the applicant has not demonstrated the
requisite likelihood of torture are attacks on factual findings that do not raise “constitutional
questions or questions of law.” Hanan, 449 F.3d at 837; Hamid, 417 F.3d at 647-48.

___C. Standard of Review
___ 1.

Petitions for Review
Factual findings underlying the agency's determination are reviewed under the standard
codified at INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B), which requires the reviewing court
to treat "the administrative findings of fact [as] conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary." See Ali, 237 F.3d at 596; Zheng v.
Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003); Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
353 (5th Cir. 2002); Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).

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The agency's interpretations of the immigration laws are given Chevron deference. See INS v.
Aguirre-Aguirre, 516 U.S. 415, 425 (1999) (citing Chevron U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837, 842 (1984)). The agency's interpretations of its own
regulations are given controlling weight unless those interpretations are "'plainly erroneous or
inconsistent with the regulations.'" Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).
___ 2.

Motions to Reopen
Courts "employ a very deferential abuse of discretion standard" for review of any Board
decision denying a motion to reopen, including those requesting reopening to seek CAT
protection. Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001); Cano-Merida v. INS,
311 F.3d 960, 965-66 (9th Cir. 2002); Mansour v. INS, 230 F.3d 902, 906-07 (7th Cir. 2000);
Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

III. BURDEN OF PROOF
___ A. Who has the burden of proof?
The burden of proof remains entirely with the applicant. 8 C.F.R. § 1208.16(c)(2); Chen v. U.S.
Dept. of Justice, 434 F.3d 144, 163 (2d Cir. 2006) (citing Ramsameachire v. Ashcroft, 357 F.3d 169
(2d Cir. 2004)). Unlike asylum and withholding of removal under the INA, there is no provision
providing a presumption of future torture based upon past torture that requires rebuttal by the DHS.
Moreover, the applicant has the burden of showing no reasonable relocation within the country of
removal. Compare 8 C.F.R. § 1208.16(c)(2) with 8 C.F.R. § 1208.13.

___ B. What is the burden of proof?
___ 1.

The applicant must establish that it is more likely than not that he or she would be tortured
in the country of removal. 8 C.F.R. § 1208.16(c)(2).
The applicant must show a "particularized threat" of torture - not just that torture occurs in the
country of removal, but a likelihood that the applicant himself or herself would be singled out
for torture. See, e.g., Lin v. U.S. Dept. of Justice, 432 F.3d 156, 158-59 (2d. Cir. 2005);
Castellano-Chacon v. INS, 341 F.3d 533, 551-52 (6th Cir. 2003); Efe v. Ashcroft, 293 F.3d
899, 907-08 (5th Cir. 2002); Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002); Matter of M-BA, 23 I. & N. Dec. 474 (BIA 2002); Matter of Y-L-, 23 I. & N. Dec. 270 (A.G. 2002); Matter
of S-V-, 22 I. & N. Dec. 1306 (BIA 2000).

___2.

On motions to reopen to apply for CAT protection, the applicant must present a prima facie
case of eligibility.
The evidence presented with the motion to reopen, if assumed to be true, must establish a
reasonable likelihood of satisfying each element of a CAT claim. 8 C.F.R. § 1208.18(b)(2)(ii);
Najjar, 257 F.3d at 1303-04; Sevoian, 290 F.3d at 174. In addition, a motion to reopen must
show that any new evidence sought to be offered is material and could not have been
discovered or presented at the earlier hearing. See Allabani v. Gonzales, 402 F.3d 668, 675-76
(6th Cir. 2005).

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IV.

EVIDENCE

___ A. Is an applicant's testimony sufficient to sustain the burden of proof?
The regulations and case law provide that while the testimony of the applicant may be sufficient to
sustain the burden of proof, the applicant should corroborate the testimony where reasonable. See 8
C.F.R. § 1208.16(c)(2) ("The testimony of the applicant, if credible, may be sufficient to sustain the
burden of proof without corroboration.") (emphasis added); see also Matter of M-D-, 21 I&N Dec.
1180, 1182-83 (BIA 1988), vacated on other grounds by Diallo v. INS, 232 F.3d 279 (2d Cir. 2000)
("[W]here it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the
specifics of an applicant’s [asylum] claim, such evidence should be provided or an explanation
should be given as to why such information was not presented."); Diallo v. INS, 232 F.3d 279, 290
(2d Cir. 2000) (finding corroboration may be required where the BIA makes an explicit credibility
finding, explains the need for corroboration, and assesses the alien's explanations for the lack of
corroboration); Abdulai v. Ashcroft, 239 F.3d 542, 554-55 (3d Cir. 2001) (same). But see Ladha v.
INS, 215 F.3d 889, 901 (9th Cir. 2000) ("[A]n alien's testimony, if unrefuted and credible, direct and
specific, is sufficient to establish the facts testified without the need for corroboration."); Uwase v.
Ashcroft, 349 F.3d 1039, 1041 (7th Cir. 2003) ("Corroborating evidence is essential to bolster an
otherwise unconvincing case, but when an asylum applicant does testify credibly, 'it is not necessary
for [her] to submit corroborating evidence in order to sustain her burden of proof.'") (quoting Georgis
v. Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003)).

___ B. Was the applicant's testimony regarding the elements of his CAT claim credible?
___ 1.

Where the applicant relies on the same facts to support his CAT claim as those relied upon to
support his claim for asylum and/or withholding of removal under the INA, the adjudicator
may adopt an overall adverse credibility finding that applies to all of the claims. Yang v. U.S.
Dept. of Justice, 426 F.3d 520, 522-23 (2d. Cir. 2005); Farah v. Ashcroft, 348 F.3d 1153,
1157 (9th Cir. 2003); Ibrahim v. Gonzales.

___ 2.

Where the adverse credibility finding is based upon testimony regarding facts not relied upon
for the applicant's CAT claim, however, a separate credibility finding may be necessary. See
Mansour, 230 F.3d at 907-08; Zubeda v. Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003);
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001); Efe, 293 F.3d at 907 ("should receive
separate attention").

___ 3.

Credibility is reviewed under the findings of fact standard codified at INA § 242(b)(4)(B), 8
U.S.C. § 1252(b)(4)(B), which requires the reviewing court to treat "the administrative
findings of fact [as] conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary."

___ C. Upon which element(s) is the claim based?
A CAT claim requires consideration of the totality of the elements. The regulations provide a nonexhaustive list of elements which may be considered, including (i) past torture inflicted on the
applicant, (ii) the possibility of relocation within country to avoid torture, (iii) evidence of gross,
flagrant or mass violations of human rights within country, and (iv) other relevant information
regarding conditions in country. 8 C.F.R. § 1208.16(c)(3). No one element is determinative; the

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adjudicator must look at the totality of the evidence to determine whether the applicant has
established that it is more likely than not that he or she will be singled out for torture in the proposed
country of removal. For example, evidence of past torture is relevant only to the extent that it affects
the likelihood of future torture, and does not suffice in and of itself to establish CAT eligibility.
Thus, an adverse credibility finding as to the testimony regarding past events does not necessarily bar
a grant, as all evidence regarding the possibility of future torture must be considered. See Ni. v. BIA,
439 F.3d 177, 179-80 (2d. Cir. 2006); Ang v. Gonzales, 430 F.3d 50, 58-59 (1st Cir. 2005);
Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004); Ngure v. Ashcroft, 367 F.3d 975,
992 (8th Cir. 2004); Niang v. Gonzales, 422 F.3d 1187, 1202 (10th Cir. 2005).
There has been some discussion in the courts as to whether forced sterilization or FGM, generally
considered to constitute past torture, constitutes an "ongoing experience" that qualifies the applicant
for CAT protection, but the cases were remanded for Board consideration of the question. See Yang,
426 F.3d at 522-523; Mohamed v. Gonzales, 400 F.3d 785, 802 (9th Cir. 2005).

___ D. Were the merits of the applicant's CAT claim considered separately from the merits of
any claim for asylum of withholding of removal under the INA?
The adjudicator must decide the merits of the CAT claim separately. Kamalthas, 251 F.3d at 1284;
Mansour, 230 F.3d at 907-08; Efe, 293 F.3d at 906-07; Tarrawally, 338 F.3d at 188. But "[a]
separate analysis under CAT is only required when the petitioner has presented evidence that he is
likely to be tortured for reasons unrelated to his asylum claim." Rodriguez v. Gonzales, --- F.3d ---,
2006 WL 708492 (8th Cir. March 22, 2006).

___ E. What evidence of country conditions was submitted?
The most common forms of evidence regarding country conditions are reports from the Department
of State and reports from non-governmental organizations. For a discussion on weighting of reports,
see Sevoian, 290 F.3d at 176 (quoting M.A. v. INS, 899 F.2d 304, 313 (4th Cir. 1990) ("[NGO's]
may have their own agendas and concerns, and their condemnations are virtually omnipresent."));
Chen v. U.S. Dept. of Justice, 434 F.3d at 164-65. A complete failure to discuss submitted reports
may also be cause for reversal. Rafiq v. Gonzales, 458 F.3d 36, 38-39 (2d Cir. 2006); Mostafa v.
Ashcroft, 395 F.3d 622 (6th Cir. 2005). But see Almaghzar v. Gonzales, 450 F.3d 415, 422 (9th Cir.
2006) (holding that although the regulation requires individualized consideration of the CAT claim, it
“does not require an IJ’s decision to discuss every piece of evidence”).

V. ELEMENTS OF A CAT CLAIM
___ A. What is the definition of "Torture"?
____ 1. Torture is "extreme and outrageous treatment," an extreme form of cruel, inhuman or
degrading treatment, and does not include lesser forms of cruel, inhuman or degrading
treatment.
8 C.F.R. § 1208.18(a)(2). While interpretation of the statutory terms is ultimately a question
for the Attorney General, in Matter of J-E-, 23 I. & N. Dec. 291, 298 (BIA 2002), the Board
referenced the European Court of Human Rights' holding that there are three levels of
mistreatment: degrading treatment (characterized by gross humiliation), inhuman treatment,

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and torture, the worst of the three. See also Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir.
2005); Raffington v. Kangemi, 399 F.3d 900, 903-04 (8th Cir. 2005) (lack of access to public
and private mental health care does not constitute torture); Al-Saher v. INS, 268 F.3d 1143,
1147 (9th Cir. 2001) (finding severe beatings coupled with burning with cigarettes was
extreme enough to constitute torture); Matter of G-A-, 23 I. & N. Dec. 540 (BIA 2002) (stating
that torture includes deliberate burning with cigarettes, severe and repeated beating with cables
and other instruments on the back and on the soles of the feet, beatings about the ears and eyes
that result in partial or complete deafness or blindness, and suspension for long periods in
contorted positions).
Torture does not include pain or suffering arising from or inherent in lawful sanctions,
such as the death penalty. 8 C.F.R. § 1208.18(a)(3). See Zhang v. Gonzales, 432 F.3d
339, 345 (5th Cir. 2005).
Torture is not solely physical mistreatment; it may also include mental mistreatment.
Mental mistreatment that rises to the extreme level of "torture" requires "prolonged
mental harm caused by or resulting from (i) intentional infliction or threatened infliction
of severe physical pain or suffering; (ii) actual or threatened administration or application
of mind altering substances or other procedures calculated to disrupt profoundly the
senses or personality; (iii) the threat of imminent death; and/or (iv) the threat of imminent
torture to another. 8 C.F.R. § 1208.18(a)(4).
The definition of torture does not encompass simple deprivation of property. Jo v.
Gonzales, 458 F.3d 104, 109-110 (2d Cir. 2006).

___ 2.

The victim must be in the torturer's custody or control at the time of torture.
8 C.F.R. § 1208.18(a)(6). Thus, even severe pain and suffering, inflicted on a person who is
not within the perpetrator's custody or control, would not qualify as torture. See 64 Fed. Reg.
8478, 8483 (Feb. 19, 1999); Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (correcting
misstatement in Matter of J-E- that applicants must demonstrate that the prospective torture
would be "by or at the instigation of or with the consent or acquiescence of a public official
who has custody or physical control of the victim.").

___ 3.

The torturer must have the specific intent to inflict severe physical or mental pain or
suffering.
An act which results in unanticipated or unintended severity of pain does not constitute torture.
8 C.F.R. § 1208.18(a)(5); Majd v. Gonzales, 446 F.3d 590, 597 (5th Cir. 2006) ("Most of the
suffering he described was inflicted without any specific intent . . . ."); Matter of J-E-, 23 I. &
N. Dec. 291 (BIA 2002); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 9293 (D.C. Cir. 2002) (construing the definition of torture in the Torture Victim Protection Act
of 1991, Pub. L. No. 102-256, 106 Stat. 73 (Mar. 12, 1992)) ("The critical issue is the degree
of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the
victim. . . . [T]orture requires acts both intentional and malicious."). But see Zubeda, 333 F.3d
at 473 (suggesting that the standard is met merely where severe pain or suffering is the
foreseeable consequence of a deliberate act (which suggests a lesser negligence or recklessness
standard)).

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___ 4.

The torturer must have a specific illicit purpose; those pursuant to lawful sanction do not
constitute torture.
The torturer must have a specific illicit purpose, such as obtaining information or a confession,
punishment for an act, intimidation or coercion, or on account of discrimination of any kind. 8
C.F.R. § 1208.18(a)(5). This language shows the framers’ intent to carefully define and
circumscribe the scope of CAT protection and to underscore the state action requirement. See
Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d at 92-93.
Acts which are pursuant to "lawful sanctions" do not constitute torture. 8 C.F.R. §
1208.18(a)(3). See Khouzam v. Ashcroft, 361 F.3d 161, 169-71 (2d Cir. 2004). But see Nuru,
404 F.3d at 1220-22 ("A government cannot exempt torturous acts from CAT's prohibition
merely by authorizing them as permissible forms of punishment in its domestic law.") (citing
Khouzam v. Ashcroft, 361 F.3d 161, 169 (2d Cir. 2004)).

___ 5.

CAT only provides protection for acts of torture with a government nexus.

The torture must be inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1).
Where the torturers are government officials, the question becomes whether they are acting in
their official capacity. "The scope of the Convention is confined to torture that is inflicted
under color of law. It extends to neither wholly private acts nor acts inflicted or approved in
other than 'an official capacity.'" Matter of Y-L-, 23 I. & N. Dec. at 285 (quoting Ali, 237 F.3d
at 597). Thus, where a government official acts ultra vires, or from personal vengeance, there
is no direct governmental nexus.
Where the torturers are NOT government officials, but private actors, the question becomes whether
government officials consented to the torture or acquiesced to such activity. Acquiescence is more
than powerlessness to prevent activity. The government official must, at a minimum, turn a blind
eye to reported torture. Ontunez-Turcios, 303 F.3d at 354; Ali, 237 F.3d at 597. The government's
inability to control a private actor does not necessarily constitute acquiescence. Kimumwe v.
Gonzales, 431 F.3d 319, 322-23 (8th Cir. 2006); Ali, 237 F.3d at 597-98; Kasneci v. Gonzales, 415
F.3d 202, 205 (1st Cir. 2005).
The government official(s) must know of or be aware of the activities of the private actors
beforehand and breach a legal responsibility to intervene to prevent the torture. 8 C.F.R. §
1208.18(a)(7); see Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). Thus, the public
official must be specifically aware of specific acts constituting torture and then fail to intervene.
See Sevoian, 290 F.3d at 176; Rreshpja v. Gonzales, 420 F.3d 551, 557 (6th Cir. 2005); Toure v.
Ashcroft, 400 F.3d 44, 50 (1st Cir. 2005) (government efforts to eradicate FGM sufficient to show
no acquiescence). "Awareness" requires "willful acceptance" in most circuits. Menjivar v.
Gonzales, 416 F.3d 918, 923 (8th Cir. 2005); Lopez-Soto v. Ashcroft, 383 F.3d 228, 240 (4th Cir.
2004); Matter of Y-L-, 23 I. & N. Dec. 270 (BIA 2002). But see Zheng, 332 F.3d at 1194-96
(holding that “acquiescence” includes awareness and willful blindness but does not require actual
knowledge or willful acceptance); Ontunez-Tursios, 303 F.3d at 355 ("'Willful blindness' suffices to
prove acquiescence."); Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir. 2005) ("[A] petitioner

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need only prove that the government is aware of a third party's torturous activity and does nothing
to prevent it."); Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005). 2 It is OIL's
position that the act of turning a blind eye to the activity does, however, require intent, and not
merely an act of negligence or recklessness. The Ninth Circuit has acknowledged that the public
official's acquiescence must be knowing. Azanor, 364 F.3d at 1020.

___ B. What do country reports show regarding risk of torture?
Where country reports show mass human rights violations, the evidence must indicate that the
applicant would be personally at risk of torture. See Nuru, 404 F.3d at 1220; Castellano-Chacon, 341
F.3d at 551-52; Efe, 293 F.3d at 907-08; Tarrawally, 338 F.3d at 188; Matter of J-E-, 23 I. & N. Dec.
291 (BIA 2002), Matter of M-B-A-, 23 I. & N. Dec. 474 (BIA 2002); Matter of Y-L-, 23 I. & N. Dec.
270 (A.G. 2002); Matter of S-V-, 22 I. & N. Dec. 1306 (BIA 2000).
If country condition reports state that torture is generally used against or specific to a group (i.e.,
political opponents, journalists, ethnic groups), does the applicant fit within the group? See
Perinpanathan v. INS, 310 F.3d 594, 599 (8th Cir. 2002); Nuru, 404 F.3d at 1220; Kamalthas, 251
F.3d at 1283; Mansour, 230 F.3d at 908; Sevoian, 290 F.3d at 175-78.

___ C.Has the applicant addressed whether internal relocation would be feasible?
Where the alleged activity is specific to one area or one group, the applicant may not face torture in a
separate area of the country. See Nuru, 404 F.3d at 1219-20; Singh, 351 F.3d at 443; Perinanpathan,
310 F. 3d at 599-600; United States v. Lubo, 262 F. Supp. 2d 727, 736 (W.D. Tex. 2003). If the
alleged activity is not country-wide, the applicant must address whether relocation is feasible. Singh
v. Gonzales, 439 F.3d 1100 (9th Cir. 2006); Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004).
The factors listed at 8 C.F.R. § 1208.13(b)(3) may also be useful.

VI. CAT PROTECTION
___ A. Is the applicant eligible for withholding of removal, or only deferral of removal?
Similar to withholding of removal under the INA, if the applicant otherwise establishes eligibility
for protection under the CAT but (i) the applicant persecuted others on account of a protected
ground; (ii) the applicant has been convicted of a particularly serious crime in the United States (see
Matter of Y-L-, 23 I. & N. Dec. at 273-78); (iii) there are "serious reasons to believe that the
[applicant] committed a serious nonpolitical crime outside the United States" before arriving in the
United States; and/or (iv) the applicant is a danger to the security of the United States, the applicant
2

For additional insight into the "willful blindness" standard, see United States v. Aguilar, 80
F.3d 329, 331 (9th Cir. 1996); United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096 (9th Cir.
1985); United States v. Jewell, 532 F.2d 697 (9th Cir. 1976). See also United States v. Espinoza, 244
F.3d 1234, 1242 (10th Cir. 2001); United States v. Campbell, 977 F.2d 854 (4th Cir. 1992).

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is ineligible for withholding of removal under the CAT and may only be granted deferral of
removal under the CAT. 8 C.F.R. § 1208.17(a); INA § 241(b)(3)(B). See Bellout v. Ashcroft, 363
F.3d 975, 978-79 (9th Cir. 2004).

___ B. Is the applicant removable to a third country where he or she would not be tortured?
Protection under the CAT, whether withholding or deferral, bars removal only to the country where
the applicant has established a likelihood of torture. The applicant may be removed to a third
country where he is not likely to be tortured. See 8 C.F.R. § 1208.16(f).

___ C. Has the U.S. Government received assurances that the applicant will not be tortured?
If the Secretary of State obtains assurance from the government of the designated country that an
applicant will not be tortured, and the Attorney General deems the assurance "sufficiently reliable",
CAT protection is no longer provided and the alien may be removed. 8 C.F.R. § 1208.18(c)(3).

___ D. Does a grant of protection under the CAT necessarily result in the applicant’s release
from DHS custody?
CAT protection does not necessarily result in the applicant's release from DHS custody, where the
applicant is subject to such custody (because removal to a third country is a possibility). 8 C.F.R. §
1208.17(b)(1)(ii). Release of aliens granted deferral of removal is governed by 8 C.F.R. §
241.4(b)(3).

___ E. What does a grant of deferral of removal entail?
___ 1.

Deferral of removal confers no lawful or permanent immigration status in the United States
and thus does not require issuance of employment authorization. 8 C.F.R. § 1208.17(b)(1)(i).

___ 2.

A grant of deferral is subject to termination where either the applicant or DHS requests
termination, or where the U.S. government receives assurances from the designated country.
8 C.F.R. §§ 1208.17(b)(1)(iv);1208.17(f).

___ a. DHS may request termination of deferral by submitting a motion to the immigration judge
requesting such termination. 8 C.F.R. § 1208.17(d). With that motion, DHS counsel must
present evidence, not previously presented, relevant to the possibility that the applicant is no
longer more likely than not to be singled out for torture in the designated country. Id. On
receipt of that motion and evidence, the immigration court must schedule a hearing and
provide the applicant with notice that he or she has 10 (personal service) or 13 (service by
mail) days to supplement the evidence provided in the initial application. 8 C.F.R.
1208.17(d)(1). Once that period to supplement expires, the immigration court must forward
the application, with all additional evidence provided by the parties, to the Department of
State for comments. 8 C.F.R. § 1208.17(d)(2).
At the hearing, the applicant bears the burden of proving that it remains more likely than not
that he or she will be tortured in the country in question. 8 C.F.R. § 1208.17(d)(3). If the
applicant no longer establishes such a likelihood, the order of deferral is terminated. 8 C.F.R.
§ 1208.17(d)(4). The applicant may appeal the decision of the immigration judge to the

9

2010FOIA4519.000401

Board. Id.
___ b. The applicant may request termination by filing a written request for termination with the
immigration court. 8 C.F.R. § 1208.17(e). The immigration judge must determine, either on
the basis of the written submission or after a hearing, whether the request for termination of
deferral is knowing and voluntary. If so, the order of deferral will be terminated. Id.

10

2010FOIA4519.000402

U.S. Department of Homeland Security
Immigration and Customs Enforcement
Office of the Chief Counsel
Miami, Florida

Standard Operating Procedures
for
Background and Security Investigation Requirements
Version 1.0
2 April 2007
SOP Background Checks
GEMs Doc. # (b)(2)High

Page 1 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000403

Table of Contents

Introduction …………………………………………………………………...………….….…..3
• Scope of the SOP
• Goals and Purpose of the SOP
Section I—Background and Security Investigation Requirements…….....………………………4
•

Biometrics Instructions Sheet……………………………………………………………..6

Section II—Miami OCC IBIS Checks processing and procedures ………..……...……...……...8
•

Miami OCC Flow Chart for Background Checks Procedures………………….…………9

•

Background Check Registry (BCR) form……….…………………………………...…..10

•

Admission Codes for BCR Completion ………………………………………………....11

Section III—Use of the Background Check Form in Court…………..………………………...14
•

Post-Order Instruction Sheet …………………………………………………...………..15

Section IV—Fingerprint Notice Procedures for applications filed before April 1, 2005……… 16
•

Fingerprint Appointment Notice for applications filed before April 1, 2005……………17

Section IV—Attachments …………………...………………………………………………….18
•

Miami OCC Guidance Memorandum dated, March 30, 2005…………………………18

•

OPLA Guidance Memorandum dated, March 31, 2005……………………………….25

•

Executive Office for Immigration Review Interim Operating Policies and
Procedures Memorandum dated, March 28, 2005…………………………………......30

SOP Backgrou
ks
GEMs Doc. # (b)(2)High

Page 2 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000404

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

Scope of the SOP

This document is a Standard National Operating Procedure (SOP)
for Background Checks and Security Investigation Requirements
for aliens in proceedings before the Immigration Judges (IJ) and
Board of Immigration Appeals (BIA). In addition, this SOP is a
procedural guide for when and how Background Checks will be
processed in the Miami Office of Chief Counsel (OCC).
The Office of the Principal Legal Advisor (OPLA) also issued a
Guidance Memorandum on March 31, 2005. This memorandum
remains active and is also attached to this SOP. This SOP does not
negate any local or national requirements and procedures that are
not in conflict with this SOP. Procedures that are above and
beyond this SOP may still be required as directed by management.

Goals and Purpose
of the SOP

SOP Backgro
GEMs Doc. #

ks

This document has been created for the purpose of standardizing
operational policies and procedures for the Miami OCC in
processing Background Checks and Security Investigations that
will ensure that required checks are current and completed prior to
any hearing at which an alien may obtain an immigration benefit.
This SOP will also provide guidance regarding the use of
background checks where an alien seeks any discretionary relief
that is not included within the required checks.

Page 3 of 17

Version 1.0

(b)(2)High

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000405

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

Section I—Background and Security Investigation Requirements
Effective April 1, 2005, background and security checks are required to be performed and
completed before an IJ or the BIA may grant any alien certain principal forms of immigration
relief. Immigration Judges are prohibited from granting applications until after Immigration and
Customs Enforcement (ICE) has reported to the IJ that the appropriate investigations or
examinations have been completed and are current and ICE has reported any relevant
information to the IJ. The BIA may remand a case for background and security checks to be
completed or updated.
Background checks are required for any alien age 14 or older. DHS has sole authority to
determine what checks shall be required. Immigration and Customs Enforcement has
determined that FBI fingerprint checks and Interagency Border Inspection System (IBIS) checks
will be the minimum required checks. FBI fingerprint results will be considered current and
complete if they were conducted and cleared within the fifteen (15) months before the IJ grants a
benefit. IBIS checks will be considered current and complete if conducted and cleared within
one hundred and eighty (180) days before a grant. Immigration and Customs Enforcement has
also determined that an FBI name check will be an additional discretionary check. On March 30,
2005, Chief Counsel Riah Ramlogan published a detailed Guidance Memorandum regarding
implementation of the new requirements in the Miami OCC. This guidance is still current and
attached hereto. This memorandum should be referred to for complete information regarding
requirements and processing of background checks in the Miami OCC.
The principal forms of immigration relief for which background checks are required include the
following:
•

Asylum, withholding of removal, and deferral of removal under Convention Against
Torture 1 ;

•

Adjustment of status under sections 209 and 245 of the Immigration and Nationality Act
(INA), or under any other provision of law;

•

Conditional permanent resident status or the removal of the conditional basis of such
status under section 216 or 216A of the INA;

1

For CAT cases, the regulation requires that the background checks be completed. Given that we will often have
antithetical information on these aliens, it is not required that the check results be resolved. Simply inform the court
that the checks have been completed, recognizing that if new significant information not previously available is
subsequently revealed upon resolution, that there may be justification for a Motion to Reopen.

SOP Backgro
GEMs Doc. #

ks

Page 4 of 17

Version 1.0

(b)(2)High

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000406

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

•

Waivers of inadmissibility or deportability under sections 209(c), 212, or 237 of the INA;

•

Cancellation of removal or suspension of deportation under section 240A or former
section 244 of the INA;

•

Relief from removal under former section 212(c) of the INA; and

•

Registry under section 249 of the INA.

In addition to the specified forms of relief, the regulation applies to any form of immigration
relief in immigration proceedings, which permits the alien to reside in the United States.

SOP Backgrou
ks
GEMs Doc. # (b)(2)High

Page 5 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000407

INSTlHlCTIQNS FOR SlIB,\I!Tr,r;c. CERTAIN AI'I'UCAnO"S IN
L\I;\lICR-\TION COllHT ",Nn FOR pROVIJ)I"G 1l10METHIC ANn I\[OGHM'!lIC
];>;1'01\.\1....1101' TO 1I. S. CITIU:NSlllp Ai'>D l.\lMIGRATlON SERVICES
A. lnstruc:tiOM
]n"e""I"nl for
fo, Form
rnem 1_5M9
Whhholding nr
1-~li9 (,\I)',",n,
(As}'lllm .IId
and for Wllhhull.Hng
of R.moYal)'
Removal)'"
In
'0 filing
r.1io£ )'Ilur
lOo' "ppll,..lon
~.,o"..n" "'I'll
lmml~,..ioo Coo,"
Itl IIddl'lon
uddilion 10
uppli allIIn and ,.ppo"I.~
'1IlJpllrtlnll dO\!llltlellt~
wl!h ,h.
lhe Immigration
Courl .nd
and
"""1,,& • comph:le
'om 1'1 ....copy
0PY of !'o",
.ppli'''Io" Otl lhe
Ih. apPI'OI)rlsle
,pp,oprl". I,"o,ig,..
loo and Cm'm",
lIcrvlng:l
your :lJlpIiC3tiOIl
I rlI lit Igt:1I iOIl
Customs
[.f,,,..
Chi,f Counsel,
Coonl,k ,'ou
mo OlliS!
WI'" :llso
"I,,, ,,,,,.pl'"
nfl'l'CCmClll lICE)
nCE) Offi••
Oflicc of Chief
Cl1lltpll!te 'h,
the 10110",10.
following rsg"lrsm<o1'
regulrcment~
before
the lrl1migr~llion
Judge (:Ill
reHtrr 0'
or prolection
t><r... 1b.
"nml~ro'ion J"d~.
<an granl
~,"ol .t1..
p'.'«llon i,n
In yonr
lo"e caSe:

n"

m.,,'

,.,t:

I"on, ,. 'b,

Sf::"U tiles.•
th... J
) ilem' io tho addn:$s
,dd,,,. brio,,':
brlo~,
SI-::-JD
(I)
,he r,,,,
~ comp]cted
<nm;>I<I<d form
rod for
(1) Ad..,
A dear =of
~oflhe
first 'h,..
three p.~"
pages 0(
ofyuur
Form l·lS9
I-58? (Applica'''''
(.'\pplication fo'
for ....yl.....
Asylum and
W;'~ld'"1
R...."..I) Ill••
,Iuo you
11 I><
f,l«I "itll
Imtnll,,'lon Coon,
mOll
Withholding of Rt'ffiO\'ill)
)'Oli ...
will
be f,li...
filing or haVe f,led
",jtM 'iI<
the Immigr.lion
Court. ""'kh
",hi~h mll~l
includ.
m,llIoE .dd
l'o",
nom"', IA_nomli«).
inclUde YOU'
your loll
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R-28 (NOli«
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Appc-arane<: ..
;[$ Attorney
Representative
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Court) if you
IrnnUl'"iOO Cnun)
yOU ilrc r"pr,,~en""d,
,""",""ltd, a.n.d
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SCIS ,~,O"'k.
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iee CNun
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YOU' ..ylwn
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,I>< USClS
USCIS Nobe..,.
S<r>;cc Cent".
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I Aller
ihe J3 I""",
ilt'ftlll are
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Nebraska Service
Cltntcr. }'OU
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"",it,

reccipillolic<: in
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ur u110m
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A lISCIS
USCIS "'np'
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""., USCIS Iw
fO'"
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and

"pot".

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An AS(
ASC .o,i«
nOlie. for
fQr you,
and sep.,aul Applk"ion
Application Suppon
flOI·tees r..
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100, >nd
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1111' ;o<Ii.",".I',
individual's unique
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on
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eachh permll
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" •" "'''Oy
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"""'''''rks

i""",I""""

SOTt, IF YOU
YOll ARE
AilE FlUNG,\
,\ .... OTlIJ:;R
ArrUc,\ nON, SEE
..• NOTe:
FlLING A FOil"
FOR'] 1_589,\,"'1)/01{
1-589 Ai'\l)Jor~ ANon-t
~R APPLICATION.
EE
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It\XfllUCTIO,",S.
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to jl'lIoll'ulJJ'
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IIbrl/lrloned D"d
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hy the

SOP Backgro
GEMs Doc. #

ks

Page 6 of 17

Version 1.0

(b)(2)High

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000408

11.. InSlnJCI]uflS
In;',ur,;"", for
lu' FOrln(s)
F",,,,(,) 1-4fl5,
1·~X5, 1·191,
I_HHI.
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ur EOIR·-42B

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filing your
applk:llion( ) ,,'llh
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sen'ing:1
c(l!llpletc <oP1'
copy of
.ddl'i"" W ml,,~
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Imml~,.. i"o Courl
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"od ..
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llny
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and C.""""
CUSIOIIlS f,nforccUlclll
(ICE) on,..
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'IJ'~ .pplio"'",,(,)
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I""ni~r ..joo J ud..
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,grant
relief in
your C:lSC:

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Coun.
(Do TIN
SU\;>11111 .oy
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documcI115 such
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approprial.
f.e(5) or tne 1Jrnmill'3lion
order S"millll
your fee
f~c: "",i_.{The
waiver. (The fee C"".ln
be
found in ,he
Ihc inslNC,ion,
in5lnJcliol1s\\'ith
th" .pplic.>'"",
appliCJ:lIjoll., ....
me "~.,""OI'I
r~glll:nion~, lind gl W\"»\~Hj.bJ!.ov
Ihe EOIR fOllTlS.
"""'"
... ill> Il>c
lllCjl.o, or for ,he
forms,
~I www.u,d"j
rov/wit),
"'
......... o><!uj ,"vlfQjr~

...... "

'

(3) TIl.
Th< mallClalory
_,ory S70
"iJO USCIS b.om<loic.
biometrics fIX.
fee.

(.)
<Of>1 of Fonn
Fon-n EOrR-211
fOIR-11 (NC!tice
(Norit. of Entry
APFar.......
Otfo", ....
(4) A 001I>'
Enl'ry of Ap""ilmntc
~s Atlom<y
Attomey or R,p''''''''''''
Itepresefltat.iv~ Before
Ihe
Immigration Coorl)
Cm.lrt) if)'Ol'
if you ore
r~pre,seilled,
and
ImmillO'''''
n, ,<p«....
t«l, ,nd

,,""""'iM<,

(5) A CoOllY
Ih,,~c
(51
<Of>1 of 110,
. .. imilTlltl;Oi\ .

T.".

C.n",

USCIS T xas S-ervic,
S<r>-I« CI'rl1er
".0. BOl:
Do, 85H63
l!l'6J
1".0.
~l"q"B•. Texas
T.... 75185··2-163
751 ~5·l-l63
j\ltsqult~,

et.o<'' ' ' '..

fc:es ""'"
/OOSI be
submil1cd io
in Iho
the f..
m n of
check '"
Or a• -">'
money orde
sepilJ1U~ ch~.kslmoncy
orders) and be m>d<
m·odc OUI
our 10:
All f=
bo .ot.niot«l
foon
01.a ,h"k
ord<'r (or ><PO"'''
y 0<<1<,,)
""

"Depal'tt1'len[ of HOlTlel:and
security.·T
,0<""""""
H""",I.nd Se<"';ty_"

After
Ihe 5I i"'ml'"
Items are "".im!
l'Cc-cfved iI[
Ihe USCIS T,...
r."35 ServiC\l
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enter
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'-OR
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ICATIONS
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PETlTlONS. WI
LL BE
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FOR SUIl,\IITTING
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g"-'"

R~I'i,\<'d 8/7106

SOP Background Checks
GEMs Doc. # (b)(2)High

Page 7 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000409

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

Section II—Miami OCC IBIS Checks Processing and Procedures
•
(b)(2)High

(b)(2)High

•

(b)(2)High

(b)(2)High

•

(b)(2)High
(b)(2)High

(b)(2)High

(b)(2)High
(b)(2)High

•

(b)(2)High
(b)(2)High

SOP Backgrou
ks
GEMs Doc. # (b)(2)High

Page 8 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000410

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

FLOW CHART FOR BACKGROUND CHECK PROCESSING

(b)(2)High

(b)(2)High

Background Check Registry form
(BCR)
(b)(2)High

(b)(2)High

(b)(2)High

(b)(2)High

(b)(2)High

SOP Background Checks
GEMs Doc. # (b)(2)High

Page 9 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000411

(b)(2)High

SOP Background Checks
GEMs Doc. # (b)(2)High

Page 10 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000412

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

SOP Background Checks
GEMs Doc. (b)(2)High

Page 11 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000413

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Page 12 of 17

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(b)(2)High

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Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000414

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SOP Background Checks
GEMs Doc. # (b)(2)High

...

,,~
.f;...

Page 13 of 17

no_,h'"

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000415

~,

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

Section III—Use of the BCR in Immigration Court
In immigration proceedings, prior to any grant of a covered form of relief, the ACC should
inform the IJ if the appropriate investigations or examinations have been completed and are
current. Immigration Judges are prohibited from granting covered applications before DHS
confirms that all checks have been completed.
If all background checks were completed and the IJ grants relief without appeal by DHS, the
respondent should be provided a Post-order Instruction form. The ACC should subsequently
annotate the lower portion of the BCR to reflect the relief granted and then route the A file as
appropriate.
If an IJ grants a covered form of relief before all background checks have been completed, the
ACC should reserve appeal and bring the matter to the Appeals Committee for review. See SOP
for appealing cases.
The IJ is authorized to go forward with the hearing in absence of the appropriate investigations
or examinations being completed, but no relief can be granted prior the completion of these
requirements.
The BCR, NCIC, and related documents must not be filed in the Record of Proceeding. Also,
the GEMS Document Type for these and related records is Enforcement Documents and are
FOIA-Exempt/ Not Served.

SOP Background Checks
GEMs Doc. # (b)(2)High

Page 14 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000416

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

I'OST_ORDER [NSIIWCTIONS FOKINI>1YIDUALS (;RANTW K[L1EF OR rRQIECTION FROM R~:~IOVAL
By IMMIGRATION COURT
Please follow the applicable IIlSIMlCf(OI1l marled below.

rrIf you ~~illo
r~illn rlr~fnl
~UUnfrr 10
I~e u~\
ud hnmlgnuien
II in$lrutlftl,
r.il (0
to follow
rDllnw USCIS
llselS in'lru
in!lrll(linnl
!,rc~cut yotl~elf
to 'he
.S. Cililu$blp
Itl nshlll and
lnll'lligl'lltion Scrvim
SCrYim (users)
(IJS r') lIS
instrueled, a~d
and fail
lioos rur
fur pru.ilIin~
pmvid'
our hIUIIIClrlC,
u, lill~crp
• IS • P
"I
I biokllpkinl
bl lIgr~pblcullnforlDlilion,
. inforlllDlien,
. , you maYln1
. your
IlIg
your
h.III1,'rkl (sud
(Incb o!
r.n~trl'rintJ,
pbollll:l'lIpb,
IIIdI'Ji~uWrr)
utiI ollcr
ntber
yuur imllli\(ruliuu
imnlitr~.iun doculUcnts
Jnelllllcnb.
rlU
(I tI~r.tp b,lUI
IglIl Iure) 1I01
Dluy 1I0t reuive
receIve
..

A:

U .0\.

,

InSltuClions for IndividuDli
InSlrllClion
Individuals ",,'ilh
with Final Orders

(]

-

B. [,,"ruetionJ
Withoul Final Orden
Instructions for Individuals
IDdl"ldLr~ls WithoulFinal
Orders

1------ -

,
0

permanenl residence
residcnce or asylum,
as~lurn, and that
Yuu have been granled
granted pennanenl
Ilcl'isiull
is
linal,
In
IIrrn:r
10
receivc
aPennanenl
Rl'Sidcnt Can!
Of
d~cisioll linal.
mdllr to receiv~ a Permanent Resident
Card or
asylum
authori1..iltion documents,
mUSI conlact
conlacl
a~)'lum and
~Ind employl»enl
employment authorization
documenls you musl
USCIS in one nfllie
of the following ways:

.•

,,I
I
I

I
I
II,

You may
Il\3y schedulc
yoUT local
schedlll~ an
un appoinlment wilh your
I ~al USCIS office
through INFOPASS
Intemel-bused online system alat
Ihrough
INFOPASS, un
an inlernet·based
\,,\~.uscis.oQv,
II \\~.l!.lii.l'llQV, or

c~ ijf
l~ emlTgenty,
ofaa true
~ml.'rg~ncy, your local USCIS office will try 10
to
• In cas~

Your IljJpliealian
far rclieflprole<:lian
thl= decision
':our
application for
rcllel7protection has been SJ'lnled.
gr,lOIcd, but
butlhc
isIS not
nollinal.
Thel'efort, you
~011 will nOI receive
final. Therefore,
rcc~ivc a rcrmanent
Penmmcnl Residenl
Resident Card
Clird
or documentation of
ofasylum
al this lime.
asylum at
tunc,
hn 30 days 10
government has
to file an appeal oflhe
of Ihc Immigulion
Immigration
• The Government
Judge's deciSion
decision with !he
oflmmigra\il'l1 Appeals (BliI).
the Board oflmm(gralllln
(BL<\),
You may check whether
lhe govemment
~vemmenl has fikd
appc;ll by
whelher the
filed an appeal
calling (800) 898-1180.
898·; 180.

•

assiSl
wilhmll an appointment.
assist you withtllli
appoinlmenl

I,

,

II

I

In order 10
(0 alloll'
allow suffltienl
suflicient lime
time for tbe USCIS office to
rncive
Dlu~e do not
nOI
rmivt inrormalioll
illformalion aboul
~bllUI )'our
yuur coun
court order, please
make your IIDpollllmcot
apDllinlmcnl or visit
vkit USCIS
USClS any ear/ier
mticr Ihn
lbllb 3
hUlinm
dayllf1er
orvnur
immiV!!lion court
coun
husiness d3Ys
after I~r
the date
dal~ of
"our immigralion
order.
9rder.

,

•

IfIhe
f11C5 an appeal
the ~m.nlj~ralillll
Immi~rali(ln Judge's
If l~e, government
govenunent files.
appca~ of
oft.he
JlJdl:(c' s
dcciJion,lhe
is~ IIufiling
You may consulllhe
consult lhe
d~clSlon, the RIA
BlA will
wllllsgu~
fIltng TI:l'tipl.
receIpt YllU
BlA
Praclice Manual al
BIA PT3ctice
at www.usdoi,govleoirforinformalionOnlhc
WW\v.uSdQI,govleoir for information 011 the
appdlale
appellate jl1OCC5S.
process,

•

While llJI
ofyour
caSt is pending althe
~h~le
an appeal of
your case
at the nlA,
AlA. you may lie
h~
eligible 10
USCIS fOlan
to apply 10
to users
for an cmployment
employment authorizalion
authorization
document
IU ~scis.gov.
document. For further informalion, see
www.USCiS.llOV.

rnu!!!!!!!.
copy ofyour
gronling j011
you
Villi !!!E!. bril/g"
brill!: a Cllpy
(if ytJIu final ordu
order granting
o~J'/IIIrJ Ilr
come to
/0 USCIS 10
IIsylum
ar pfTmOllfll1
permallent rrridncy
midency ",hn
when yOIl
you Come
to
(ompll'lr
YOlir S/Ollll
compleft proeminl
prOW 'illg for Yllur
11I1IiJ' Il/ldlor
and/or wqrk
work

users

uutlrorizafio/f dOClirntnts.
dOCliments,
Oili/wr/wioo
0

I,

V',u !IdVl'
~en gWnlcd
grdnl~d allVlber
prolcclion, sucb
YllU
h,!Vc h~tn
unOlher fonn
form ofrclief
of relief Of
or protection,
such
removal. and yOll
~nu lIlay
as Wilhholding
wilhholding of rernov~1.
may be eligible for work
authorizalion, You may
m3Y obtain
obIain an 1·765,
authoriwtion.
'·765, AppliUltion
Application for
Empklymcnl A~lhnri7.1lion.
websilc alat
Empk1ymcnl
A~lhllrl?.alion. from tbe
the USCIS
usels websitc
~\\ W,U>l'I)_g!lvlgraphic~form!r~elfllnl\s1indq ~Im. Of
~\"V,u~m.tHlI'IUrilnhic~fom,sr~~Jr~lflllS/il1dell,hlm,
or by calling
the
((KilO)
110) 75,5283. SUblUillhe
Submit lhe applicalion as directed in tl,e
InS1llJCliOn~ 10 Ihe aprlicalion.
application.
inslnJclions

m·sm.

~ovemmen1 does not
nol file an
If the government
an appeal,
appelll, 1he
lhe Immigration JIld~e'$
Judge's
dedsiOll
aftcr 30 days, and you
Y\JU may tlltn
\hen scht~dule
:IC~duk
decision will become fwl
fmal after
an appointmenl
with USCIS to receive
IC(ci~e your
yoor immigralion
appoinlmcnl wilh
immigration documcnlS
documenlS
(f,g.
Prnnantn1 Resident Ca.-d
:lSylum and employment
employmenl
(e.8" Pennanent
Card Of
or asylum
aUlhoriulion).
inSlMlioo5 on lhe
Ihis
Bulhorization). Follow !he
the instructions
the left side (A) of this
pilper
appointmenl at your local USelS
USCIS office.
paper for making an appolntmenl
orner. Be
i
sure 10
USCIS.
Slife
to bring the judge'$order
judge's order to
10 users,

b7\lnting you rdkf
the RIA
BI~ l$sues
issues an administratively
a~mjnislralivcly final ord~r
order ~ral1ling
relief
• If Ihe
or prot«I\On,
lime you ma~
protectton, at thai time
may scllerluJe
schedule an aPllj.lintmenl
apJXlll1lment ""ilh
"'ith
USCIS to receive your immigratlon
immigution SlalUS
stalUS documenls,
fk sure
SUIC 10
10
U~CI
documCols, Be
bring your BIA order 10
USeIS.
bnng
to U
CIS.

-

(Ell

SOP Backgro
GEMs Doc. #

ks

Page 15 of 17

DJI~

Version 1.0

(b)(2)High

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000417

411/05)

Immigration and Customs Enforcement
Miami Office of the Chief Counsel
SOP for Background Checks
2 April 2007

Section IV—Fingerprint Notice Procedures for Applications Filed Before April 1, 2005
Respondents who had already filed applications for relief prior to April 1, 2005, (pipeline cases)
and need to have their fingerprints updated are still given the Fingerprint Appointment Notice
and can go directly to any of the local Application Support Centers (ASC) to be fingerprinted.
Fingerprint Appointment Notices will only be provided for pipeline cases. Respondents should
address any problems regarding BCR delays or appointments directly with CIS.
Please check Duty Attorney SOP for additional instructions regarding fingerprint form requests.

SOP Background Checks
GEMs Doc. # (b)(2)High

Page 16 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000418

(b)(2)High

SOP Background Checks
GEMs Doc. # (b)(2)High

Page 17 of 17

Version 1.0

Disclaimer: This document is not intended for dissemination beyond the employees of the Miami Office of the Chief
Counsel. It has been created solely for internal guidance and distribution.

2010FOIA4519.000419

Key Asylum Confidentiality Caselaw
(courtesy of George Martin, APLD)
•

Anim v. Mukasey, 535 F.3d 243 (4th Cir. 2008) (finding overseas asylum fraud investigation of police
summonses against a political opponent violated 8 C.F.R. § 1208.6 because: 1) although alien had orally
agreed to the investigation, a written waiver was required; 2) the USG report of investigation failed to
comply with 2001 INS memo specifying, e.g., how the inquiry was made to the foreign govt. official, what
the inquiry entailed, and whether USG investigator was aware of 1208.6; 3) the disclosure of police
summonses related to opposition political activity by the USG made clear that the alien was in contact
with the USG information, giving rise to a “reasonable inference” that the alien was seeking asylum in the
U.S.; separately finding the investigative report to be of no evidentiary value because it was based on
multiple hearsay statements)

•

Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008) (finding that USG overseas inquiry to foreign government
about authenticity of official document resulted in foreign government becoming aware of alien’s name,
his contact with USG, and fact that USG possessed document noting his imprisonment for political
activism; applying Zhen Nan Lin, infra, to find 8 C.F.R § 1208.6 violation, and remanding to BIA to
consider whether breach gave rise to new risk of persecution)

•

Averianova v. Mukasey, 509 F.3d 890 (8th Cir. 2007) (distinguishing Zhen Nan Lin, infra, finding no 8
C.F.R. § 1208.6 violation where USG did not provide documents to foreign government, but simply
requested alien’s birth records; noting even if “disclosures” made by providing alien’s name and birth
date, and inquiring about ethnicity, no reasonable inference of asylum application was thereby raised;
ethnicity is common vital statistic referenced in many official documents and thus do not necessarily imply
alien is seeking asylum)

•

Abdel-Rahman v. Gonzales, 493 F.3d 444 (4th Cir. 2007) (finding that even though USG improperly
disclosed military deserter’s status as asylum applicant to foreign government in violation of 8 C.F.R. §
1208.6, such does not necessarily render alien eligible for asylum and distinguishing Zhen Nan Lin, infra,
on grounds that BIA already considered violation and determined that it gave rise to new persecution
claim; observing foreign government had expressed interest in alien well before USG’s improper
disclosure, and that foreign government had tracked alien closely in U.S. and was seeking his return, prior
to both his asylum application and its disclosure)

•

Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2006) (holding Iranian established eligibility for CAT
deferral where, inter alia, Iranian officials would be able to identify his involvement with dissident group
based on immigration court documents the court mistakenly believed he was required to submit as part of
travel document process; noting while USG precluded from disclosing asylum related information under 8
C.F.R. § 1208.6, regulation “does not impede Iran’s actions”)

•

Zhen Nan Lin v. U.S. Dep't of Justice, 459 F.3d 255 (2d Cir. 2006) (finding that submission of official
document to foreign government for authentication, which linked alien to “conspiracy of anti-revolution,”
gave rise to reasonable inference of asylum application, constituting a breach of 8 C.F.R. § 1208.6; noting
that when document indicates foreign government has violated human rights, that government's “opinion”
regarding authenticity is suspect; remanding case to BIA to evaluate new, independent risk of persecution
based on breach; and, finally, expressing “no opinion” whether USG employee who breached
confidentiality should be disciplined, but noting that breach could be “firing offense”)

•

Ghasemimehr v. Gonzales, 427 F.3d 1160 (8th Cir. 2005) (noting it would not be unreasonable for foreign
government to have deduced alien had applied for asylum where USG forwarded redacted IJ minute order
deleting check mark and words “granted/denied/withdrawn” from bullet dealing with asylum, but
nevertheless denying alien’s petition for review, finding alien had presented no evidence of foreign
government reaction to altered IJ minute order and even if it had deduced he was asylum applicant, alien
showed no potential harm from alleged disclosure)

2010FOIA4519.000420

ASYLUM/WITHHOLDING OF REMOVAL CHECK-LIST
Randa Zagzoug
Deputy Chief Counsel
United States Immigration and Customs Enforcement
New York Office of the Chief Counsel 1
ASYLUM
I.

WHAT IS ASYLUM?

(b)(2)High, (b)(5)

II.

WHAT KIND OF ASYLUM CASE IS IT?

(b)(2)High, (b)(5)

1

2010FOIA4519.000421

(b)(2)High, (b)(5)

III.

WAS THE QUALITY OF THE EVIDENCE ADEQUATE?

(b)(2)High, (b)(5)

2

2010FOIA4519.000422

(b)(5), (b)(2)High

IV.

DID SUBSTANCE OF EVIDENCE PROVE EACH ELEMENT OF
ASYLUM?

(b)(2)High, (b)(5)

3

2010FOIA4519.000423

(b)(2)High, (b)(5)

4

2010FOIA4519.000424

(b)(2)High, (b)(5)

5

2010FOIA4519.000425

(b)(2)High, (b)(5)

V.

IS APPLICANT DISQUALIFIED FROM RECEIVING ASYLUM
BECAUSE OF A STATUTORY BAR?

(b)(2)High, (b)(5)

VI. IS APPLICANT UNDESERVING OF ASYLUM AS A MATTER OF
DISCRETION?

(b)(2)High, (b)(5)

6

2010FOIA4519.000426

WITHHOLDING
I. WHAT IS WITHHOLDING OF REMOVAL?

(b)(2)High, (b)(5)

7

2010FOIA4519.000427

Asylum and Withholding of Removal
Leonard A. Rosenberg, San Francisco Deputy Chief Counsel

ncisco Asylum Folder
(b)(2)High

2010FOIA4519.000428

ASYLUM CONFIDENTIALITY ADVISAL
(provided by ICE's Appellate and Protection Law Division)

• The law unequivocally prohibits the disclosure of asylum-related
information to unauthorized parties. See 8 C.F.R. §§ 208.6, 1208.6.
• Protected information includes information contained in or pertaining to
applications for asylum (INA § 208), refugee status (INA § 207),
withholding of removal (INA § 241 (b)(3 )), credible fear interviews (INA §
235(b)), and requests for protection under the Convention Against Torture
(CAT). It includes any other information that Inight lead to a "reasonable
inference" that an alien has made such an application.
• Private individuals and foreign governnlents will always be unauthorized
parties; no disclosures nlay be nlade to thenl under any circumstances.
Unauthorized parties may also include international organizations (e.g.,
INTERPOL), state and local law enforcement agencies, and even, in certain
situations, other federal agencies.
• When making any authorized disclosure, include this advisal, or otherwise
be certain to convey the information contained herein.
• If you have any questions about this advisal, contact either local ICE Chief
Counselor ICE OPLA's Appellate and Protection Law Division.

This adl'isal is ill/ended /0 prm'ide onrl' the mos/ general guidallce. It is 110/ to be dissemilla/ed OIl/side
ofrhe u.s. Govemmelll. Ir does nor create all)' enforceable legal righr or pril'tlre right ofacrion.
FOR OFFICIAL USE ONLY
2010FOIA4519.000429

ADJUSTMENT OF STATUS CHECKLIST (for section 245 adjustments)

1. Alien inspected and admitted or paroled (245(a))

(b)(2)High, (b)(7)e, (b)(5)

2. Alien makes application for adjustment (I-485) (245(a))
(b)(2)High, (b)(7)e, (b)(5)

3. Alien has an immediately available immigrant visa (245(a))

(b)(2)High, (b)(7)e, (b)(5)

4. Statutory bars

(b)(2)High, (b)(7)e, (b)(5)

Page 1 of 3

2010FOIA4519.000430

(b)(2)High, (b)(7)e, (b)(5)

5. Alien is admissible (245(a))

(b)(2)High, (b)(7)e, (b)(5)

(b)(2)High, (b)(7)e, (b)(5)

Page 2 of 3

2010FOIA4519.000431

6. Discretion (245(a) -- the AG "may")

(b)(2)High, (b)(7)e, (b)(5)

7. DV cases

(b)(2)High, (b)(7)e, (b)(5)

Philip J. Costa, DCC
Elizabeth Gross, ACC
January 19, 2007

Page 3 of 3

2010FOIA4519.000432

SPECIAL RULE CANCELLATION OF REMOVAL
PURSUANT TO SECTION 203 OF NACARA

I.

PURPOSE

-

To provide discretionary relief in the form of lawful permanent resident status to
Salvadorans, Guatemalans, and nationals of former Soviet bloc countries who also
satisfy other statutory requirements with regard to continuous physical presence,
good moral character, and hardship.

References:

INA § 101(a)(43); INA § 212(a)(2); INA § 237(a)(2); INA § 237(a)(3);
INA § 237(a)(4); INA § 240(b)(7); INA § 240A(c); INA § 240B(d); INA
§ 241(b)(3)(B)(I); 8 C.F.R. § 1240.60; 8 C.F.R. § 1240.61;
8 C.F.R. § 1240.66; § 203 of NACARA

II.

PROCESS

-

An applicant must establish:
a)

That he is described in 8 C.F.R. § 1240.61 as an alien eligible to apply for
this relief;

b)

That he is not inadmissible for a criminal-related offense or securityrelated offense, or deportable for a criminal-related offense, securityrelated offense, document fraud, or failure to register;

c)

That the alien has been physically present in the United States for a
continuous period of seven years immediately preceding the filing of the
application;

d)

That the alien has been a person of good moral character during the
required period of continuous physical presence;

e)

That the alien's removal would result in extreme hardship to the alien, or
to the alien's spouse, parent, or child who is a United States citizen or an
alien lawfully admitted for permanent residence;

f)

That the alien has not been convicted of an aggravated felony;

g)

That the alien has not ordered, incited, assisted, or otherwise participated
in the persecution of an individual because of the individual’s race,

Jeffrey E. Blivaiss
Assistant Chief Counsel, DHS/ICE
New York District

1
2010FOIA4519.000433

religion, nationality, membership in a particular social group, or political
opinion (as described in INA § 241(b)(3)(B)(i)); and
h)

-

-

That the alien does not have an outstanding final order of deportation or
removal.

Separate requirements based on nationality:
-

If the applicant is Salvadoran, he must also establish that he first entered
the United States on or before September 19, 1990 without being
apprehended after entry after December 19, 1990 or that he filed an
application for asylum before April 1, 1990, and that he registered for
either temporary protected status or as a class member in the settlement in
American Baptist Churches v. Thornburgh before October 31, 1991.
Hardship is presumed but can be rebutted by the Department if it is shown
that it is more likely than not that neither the applicant nor a qualified
relative would suffer extreme hardship if the applicant were removed from
the United States.

-

If the applicant is Guatemalan, he must also establish that he first
entered the United States on or before October 1, 1990 without being
apprehended after entry after December 19, 1990 or that he filed an
application for asylum before April 1, 1990, and that he registered as a
class member in the settlement in American Baptist Churches v.
Thornburgh before December 31, 1991. Hardship is presumed but can be
rebutted by the Department if it is shown that it is more likely than not that
neither the applicant nor a qualified relative would suffer extreme hardship
if the applicant were removed from the United States.

-

If the applicant is from a former Soviet bloc nation, he must also
establish that he first entered the United States on or before December 31,
1990 without being apprehended after entry after December 19, 1990, and
filed an application for asylum on or before December 31, 1991.

Other factors related to eligibility:
-

If the alien is inadmissible or deportable based on a criminal or securityrelated ground, the alien must establish that he has been physically present
in the United States for a continuous period of ten years immediately
following the commission of an act, or the assumption of a status
constituting a ground for removal.

-

The spouse or unmarried child of an alien described in 8 C.F.R. § 1240.61
may also be eligible if the spouse or parent has pending application or they

Jeffrey E. Blivaiss
Assistant Chief Counsel, DHS/ICE
New York District

2
2010FOIA4519.000434

have been granted status; if the unmarried child is over 21 years old, then
need to establish date of entry as required by statute.
-

III.

Continuous physical presence:
-

Continuous physical presence may be cut off if the alien has departed from
the United States for a period in excess of 90 days or for any periods in the
aggregate of 180 days. Any period less than 90 days must be shown to be
casual and innocent and did not meaningfully interrupt the period of
continuous physical presence in the United States.

-

Continuous physical presence is terminated when the alien is removed
from the United States under an order of removal, or the alien voluntarily
departs under the threat of deportation, or when the departure is made for
the purpose of committing an unlawful act.

-

Service of the charging document or the commission of a criminal offense
referred to in INA § 212(a)(2) that renders the alien inadmissible for a
criminal-related offense pursuant to INA § 212(a)(2) or deportable for a
criminal-related offense pursuant to INA § 237(a)(2) or security-related
offense pursuant to INA § 237(a)(4) does not cut-off the period of
continuous physical presence.

EXAMPLES

(b)(2)High, (b)(5)

Jeffrey E. Blivaiss
Assistant Chief Counsel, DHS/ICE
New York District

3
2010FOIA4519.000435

CANCELLATION OF REMOVAL
FOR BATTERED SPOUSE OR CHILD
I.

PURPOSE

-

To provide discretionary relief in the form of lawful permanent resident status to
an alien who is the spouse or child of a United States citizen or lawful permanent
resident, and the alien was battered or subject to extreme cruelty by the United
States citizen or lawful permanent resident spouse or parent.

References:

INA § 101(a)(43); INA § 101(f); INA § 212(a)(2); INA § 212(a)(3);
INA § 237(a)(1)(G); INA § 237(2); INA § 237(3); INA § 237(4);
INA § 240A(b)(2); INA § 240A(b)(5); INA § 240A(d)

II.

PROCESS

-

An applicant must establish:
a)

Battered or subject to extreme cruelty by a spouse or parent who is or was
a United States citizen or lawful permanent resident (or is the parent of a
child of a United States citizen or lawful permanent resident and the child
has been battered or subjected to extreme cruelty by the citizen or
permanent resident parent);
Or
Battered or subject to extreme cruelty by a United States citizen or lawful
permanent resident who the alien intended to marry but whose marriage is
not legitimate because of that citizen’s or permanent resident’s bigamy;

b)

Physical presence in the United States for a continuous period of not less
than three (3) years immediately preceding the date of such application
(the issuance of a charging document shall not toll the three year period);

c)

Good moral character during the period of physical presence;

d)

Not rendered inadmissible or removable for a criminal-related ground,
security-related ground, marriage fraud, failure to properly register, or
document fraud (subject to the application of a domestic violence waiver),
and not convicted of an aggravated felony; and

e)

Removal would result in extreme hardship to the alien, the alien’s child, or
the alien’s parent.

Jeffrey E. Blivaiss
Assistant Chief Counsel, DHS/ICE
New York District

1
2010FOIA4519.000436

-

Bars to an applicant seeking non-lawful permanent resident cancellation of
removal pursuant to INA § 240A(b)(1) do not apply for an applicant seeking
relief under INA § 240A(b)(2).

-

Service of the Notice to Appear does not cut off the period of continuous physical
presence, but continuous physical presence is cut off when the alien has
committed a criminal-related offense referred to in INA § 212(a)(2) that renders
the alien inadmissible for a criminal-related ground or removable for a criminalrelated ground or security-related grounds (INA § 240A(d)).

-

Continuous physical presence is not cut off by reason of an absence if the alien
establishes a connection between the absence and the battering or extreme cruelty
perpetrated against the alien.

-

An act or conviction that does not bar eligibility for this relief does not bar a
finding of good moral character if it is found that the act or conviction was
connected to the alien's having been battered or subjected to extreme cruelty.

III.

EXAMPLES

(b)(2)High, (b)(5)

Jeffrey E. Blivaiss
Assistant Chief Counsel, DHS/ICE
New York District

2
2010FOIA4519.000437

ALTERNATE METHODS OF
REMOVAL
ADMINISTRATIVE REMOVAL * INA §238
EXPEDITED REMOVAL * INA §235
REINSTATEMENT * INA §241(A)(5)
STIPULATED REMOVAL * INA §240(D)
VISA WAIVER * INA §217

ACC C. Auble

2010FOIA4519.000438

ADMINISTRATIVE REMOVAL - INA §238
I.

PURPOSE

Removal without an in-person hearing before an immigration judge (IJ) for certain
criminal aliens who are not otherwise entitled to relief from removal. Applies only to
aliens with final conviction for an aggravated felony. Aliens cannot be an LPR. Entry
can be either lawful or unlawful. Only relief is withholding of removal via asylum office
credible fear interview.
Reference:

INA § 238; 8 CFR Part 238; See Administrative Removal Manual (M430)

II.

PROCESS

-

Officer the paperwork and submits for attorney review after service on the alien
and obtaining the alien’s signature on appropriate forms.

-

Attorney review consists of verifying that
a)

b)

The I-213 contains sufficient information to support administrative
removal
1)

Identity (name and date of birth).

2)

Alien is not a lawful permanent resident.

3)

Date, place and manner of entry.

4)

DHS advised alien of consular communication privileges.

5)

DHS gave alien list of free legal services.

6)

Alien stated whether any immigration petitions are pending or
approved to benefit the alien.

7)

Alien stated whether or not he has a fear of returning.

8)

Alien does not appear to be eligible for a waiver under section
212(h).

The conviction documents contain
1)

ACC C. Auble

Same name and date of birth as alien in administrative removal
proceedings.

2010FOIA4519.000439

c)

ACC C. Auble

2)

In the event of a drug crime, the type of drug charged (i.e., the drug
in a state conviction is contained in one of the Federal controlled
substances schedules).

3)

Conviction for a crime that is an aggravated felony.

4)

Sentencing information to support a determination that the crime is
an aggravated felony, if sentencing information is required by the
subsection of section 101(a)(43) being charged by DHS.

The Notice of Intent to Issue a Final Administrative Removal Order, Form
I-851, correctly states the
1)

Alien’s name, alien number, county of nativity, and country of
citizenship.

2)

Date, place and manner of entry.

3)

Alien is not lawfully admitted for permanent residence.

4)

Details of the crime which is an aggravated felony that forms the
basis for the administrative removal (i.e., date of conviction, court,
offense description and statute violated).

5)

Appropriate subsection of the aggravated felony definition which
corresponds to the crime that is the basis for the administrative
removal (i.e., INA section 101(a)(43)(B) for drug trafficking
conviction).

6)

Alien signed and dated his acknowledgment of receipt of Form I851.

7)

Alien checked the box indicating that he does not wish to contest
administrative removal proceedings and does not wish to request
withholding of removal.

8)

Alien checked the box indicating that he admits the allegations,
concedes the charge, concedes that he is deportable, acknowledges
that he is not eligible for relief from removal, and designates the
country of removal.

9)

Alien checked the box waiving the right to remain in the United
States for 14 calendar days in order to apply for judicial review.

10)

Alien signed and dated the Form I-851.

2010FOIA4519.000440

-

Attorney must record any legal action taken in GEMS.

(b)(2)High, (b)(5)

ACC C. Auble

2010FOIA4519.000441

EXPEDITED REMOVAL
I.

PURPOSE

Port of entry removal without an in-person hearing before an immigration judge (IJ) for
inadmissible aliens subject to INA section 212(a)(6)(C) (misrepresentation) or section
212(a)(7) (lack of documents) removal. Not applicable to stowaways or arriving
vessels, LPRs, or VWP applicants. Only relief is asylum via asylum office credible fear
interview.
Reference:

INA § 235(b)(1); 8 CFR 235.3; See section 17.15 of M-450.

II.

PROCESS

-

Officer prepares the paperwork and submits for legal sufficiency review prior to
service on alien.

-

Attorney review consists of verifying that
a)

b)

The sworn statement
1)

Proves identity.

2)

Proves alienage.

3)

Supports the inadmissibility determination.

4)

Contains a statement that the alien does not fear returning to the
home country.

Notice and Order of Expedited Removal, Form I-860, contains
1)

Correct alien name and number.

2)

Appropriate grounds of inadmissibility.

-

Attorney must record any legal action taken in GEMS.

III.

EXAMPLES

(b)(2)High, (b)(5)

ACC C. Auble

2010FOIA4519.000442

(b)(2)High, (b)(5)

ACC C. Auble

2010FOIA4519.000443

REINSTATEMENT

I.

PURPOSE

Reinstates prior removal order without recourse to immigration judge. Applies to aliens
who illegally reenter after execution of final order of removal, deportation, or exclusion.
Effective date (4/1/1997) refers to date DHS encounters alien, not date of prior removal
order. Only relief is withholding of removal via asylum office credible fear interview.
Prior expulsion order not judicially reviewable.
Reference:

INA § 241(a)(5); 8 CFR section 241.8; See section 14.8 of M-489

II.

PROCESS

-

Officer prepares the paperwork and submits for attorney review after service on
the alien and obtaining the alien’s signature on appropriate forms.

-

Attorney review consists of verifying that
a)

The sworn statement
1)

Proves identity with the alien previously removed.

2)

Proves date, place and manner of unlawful reentry.

3)

Contains admission of prior removal, including date and place
from which the alien was removed.

4)

Contains admission that the alien did not obtain permission to
reenter the United States after prior removal/deportation/exclusion.

5)

Contains statement that the alien does not have fear of returning.
If the alien states that he does have a fear of returning, the sworn
statement should contain the details of his fear (usually a fear of
economic problems or prosecution for admitted crimes) to
determine if the alien should be referred to the asylum office for a
credible fear interview.

b)

The prior Order concerns the same person by name and alien number as
the alien subject to reinstatement.

c)

The executed Warrant of Removal, Form I-205, concerns the same person
by name and alien number as the alien subject to reinstatement.

ACC C. Auble

2010FOIA4519.000444

d)

The Notice of Intent/Decision to Reinstate Prior Order, Form I-871,
correctly states the
1)

Alien’s name and alien number.

2)

Date and place of the prior Order.

3)

Date of the prior removal.

4)

Date and place of the unlawful reentry.

-

Attorney must record any legal action taken in GEMS.

III.

EXAMPLES

(b)(2)High, (b)(5)

ACC C. Auble

2010FOIA4519.000445

STIPULATED REMOVAL

I.

PURPOSE

Removal order issued by IJ without necessity of an in-person hearing. Available in
removal, deportation, and exclusion proceedings. Alien must be illegal entrant, present in
US less than ten years from date of charging document issuance, have no pending
applications or any possible eligibility for relief, and wants to participate in stipulated
removal. Officer prepares stipulated removal packet for legal review and signature.
Packet filed with immigration court having jurisdiction over the alien.
Reference:

INA § 240(d); 8 CFR section 1003.25(b).

II.

PROCESS

-

Attorney review consists of verifying that
a)

b)

c)

The Notice to Appear (NTA) correctly states the
1)

Alien’s name and alien number.

2)

Date of entry which is less than ten years from the date of the NTA
issuance.

3)

NTA portion entitled “Request for Prompt Hearing” is NOT signed
by the alien.

The I-213 reflects that
1)

DHS advised the alien of consular communication privileges.

2)

Alien does not appear to be eligible for a waiver under section
212(h).

The alien’s statement/request for stipulated removal 1
1)

Is in both English and Spanish (if the alien is a Spanish speaker).

2)

Contains the date the NTA was issued, not the date the NTA was
served on the alien.

3)

Is signed and dated by the alien.

1

Because stipulated removal proceedings are before an Immigration Judge, the stipulated removal forms
may vary with each court.

ACC C. Auble

2010FOIA4519.000446

d)

The DHS response may either be part of a joint stipulated request for an
Order, or a separate response. The attorney must review for accuracy,
make any corrections, and sign and date the response.

e)

The proposed Order of Removal correctly reflects the
1)

Charges under which the alien is being removed.

2)

NTA issuance date.

-

After the attorney completes the legal sufficiency review and signs the
appropriate document, the entire stipulated removal packet is delivered to the
immigration court for adjudication.

-

When the immigration court returns the stipulated removal packet, the Order is
processed in the normal manner.

-

Attorney must record any legal action taken in GEMS.

III.

EXAMPLES

(b)(2)High, (b)(5)

ACC C. Auble

2010FOIA4519.000447

VISA WAIVER PROGRAM (VWP)
I.

PURPOSE

Port of entry removal without an in-person hearing before an immigration judge (IJ) for
certain nonimmigrant visitors from designated countries who are not required to obtain a
visa and who are inadmissible or, after admission under VWP, become deportable.
Pursuant to section 237 of the INA and determined by SAC in jurisdiction where alien is
found. Relief available is limited to asylum via asylum office credible fear interview and,
under certain circumstances, adjustment of status. Functional equivalent to section 240
removal.
Reference:

INA § 217; 8 C.F.R Part 217; See section 15.7(g) of Inspectors Field
Manual (M-450).

II.

PROCESS

-

Officer prepares paperwork and submits for legal sufficiency review.

-

Refused admission at a port of entry due to inadmissibility: officer submits for
attorney review prior to service of removal documents under section 217. 2
Attorney review consists of verifying that
a)

The sworn statement
1)

Supports the inadmissibility determination.

2)

Contains a statement that the alien does not fear returning to the
home country.

3)

Does not establish facts which clearly demonstrate that an
unforeseen emergency prevented the alien from acquiring the
appropriate passport or visa, thus qualifying the alien for a waiver
under section 212(d)(4)(A) (an alien arriving for a medical
emergency; an alien accompanying or following to join a person
arriving for a medical emergency; or the alien’s passport or visa
was lost or stolen within 48 hours of departing the last port of
embarkation for the United States). If facts do establish eligibility
for the waiver, the attorney should instruct the officer to advise the
alien of the right to apply for the waiver, provide the alien with
Form 193, Application for Waiver of U.S. Passport and/or Visa,

2

There are no standardized forms for removal documents under section 217. Some offices use only a letter
to notify the alien, consistent with the Immigration Inspector’s Manual (M-450), while other offices use a
notice of intent to remove, an order of removal, and a warrant of removal, all prepared for use only with
removals under section 217. The key is that the alien has had adequate notice of the grounds for removal,
as well as an opportunity to express whether he has a fear of returning.

ACC C. Auble

2010FOIA4519.000448

and advise the alien of the nearest office of US CIS where the alien
can file the completed Form I-193 with the appropriate fee.
b)

-

The removal documents under section 217 are factually accurate and
supported by the sworn statement.

Admitted and subsequently becomes deportable: Officer submits the removal
documents under section 217 for attorney review prior to service on the alien.
Attorney review consists of verifying that
a)

b)

The Record of Deportable/Inadmissible Alien, Form I-213 (I-213)
contains sufficient information to support VWP removal.
1)

Identity.

2)

VWP entry (date, place, passport and I-94 with WT class of
admission noted).

3)

Ground(s) of deportability under section 237.

The I-213 addresses other necessary information needed prior to seeking
an order of removal.
1)

DHS advised the alien of consular communication privileges.

2)

DHS gave the alien list of free legal services.

3)

Alien stated whether any immigration petitions are pending or
approved to benefit the alien.

4)

Alien stated whether or not he has a fear of returning.

c)

If a sworn statement was taken, attorney must review to ensure that
contents support the removal documents under section 217, and that the
sworn statement does not contain any information to indicate a right to
further proceedings (i.e., alien left home country out of fear, indicating
that alien should be referred for credible fear interview; alien has married
since entry and spouse has petitioned for alien, indicating that alien may
be eligible to adjust – see 8 C.F.R. § 245.1(b)(7)).

d)

Removal documents under section 217 fully advise the alien of the
ground(s) of removability, that the alien is removable under the VWP, and
that the alien is being removed without a hearing before an immigration
judge in accordance with the VWP provisions.

ACC C. Auble

2010FOIA4519.000449

-

The officer has prepared the Notice to Alien Ordered Removed/Departure
Verification, Form I-296, advising the alien that he is precluded from reentering
the United States for a specified period.

-

If the alien requests asylum, either at a port of entry or after admission, the officer
refers the case to the asylum office for a credible fear interview. If the asylum
office issues a Notice of Referral to Immigration Judge, Form I-863, the attorney
reviews the I-863 and other documents in the alien’s file prior to filing the Form
I-863 with the Immigration Court.

-

Attorney must record any legal action taken in GEMS.

III.

EXAMPLES

(b)(2)High, (b)(5)

ACC C. Auble

2010FOIA4519.000450

ALIEN COMPETENCY
The government may seek to remove an alien who is not legally competent by
reason of age (juveniles) or mental condition. However, removal proceedings against
individuals who are not competent will involve issues and procedural requirements not
normally encountered. Many requirements apply to both juveniles and to those who are
mentally incompetent, but there are unique issues and requirements for both. Therefore,
this protocol will address juveniles and mental incompetency in separate sections.
The government may also detain an alien with a final removal order beyond the
removal period described in section 241 of the INA, 8 U.S.C. § 1231 if it cannot remove
the alien and the alien is specially dangerous “[d]ue to a mental condition or personality
disorder and behavior associated with that condition or disorder.” 8 C.F.R. §
241.14(f)(1)(ii). The final section will address the issues and requirements associated
with such a decision to detain an alien beyond the statutory removal period.

I. JUVENILE COMPETENCY ISSUES
A.

Constitutional status
1. At common law any person over the age of seven years was considered
competent to stand trial for any crime committed. Beginning in the 1890’s a
movement began to create a Juvenile Court system, the system was to operate
on a theory that the State would be substituted for the parents in carrying for
the best interests of the child. The goal of the system was rehabilitate rather
than to punish a child. The system was labeled as civil rather than criminal. In
re Gault, 387 U.S. 1 (1967).
2.

There is no constitutional duty to treat a person under the age of majority
differently in the criminal processes. However, with regard to property
interests the law gave special protection to minors. A minor is a person under
the full legal age; in other words, a person under a legal disability. Stated
otherwise, minority is not an actual condition, which is shed like a cocoon by
the child on his or her 18th birthday; a person remains a minor until he or she
attains the “age of majority,” the law’s dividing line between adults and
minors, which is drawn by the legislature. Am. Jur. 2nd “Infants” §1.

3. In Kent v. U.S., 383 U.S. 541 (1966) and in In Re Gault, supra. the Supreme
Court turned away from the view that juveniles were not entitled to the usual
due process protections of the criminal law. The Court held that most
criminal rights apply to the juvenile court defendant including counsel, notice,
a high burden of proof of guilt. In removal proceedings the District Court in
Perez-Funez v. INS, 619 F. Supp. 656 (C.D. CA 1985) summarized precedent
decisions by noting that deportation is a civil proceeding and there is no due
Tammy L. Fitting
Jeanne Foden-Vencil
Assistant Chief Counsels
Seattle Office of Chief Counsel

2010FOIA4519.000451

process or statutory right to appointed counsel for juveniles. The Supreme
Court in Reno v. Flores, 507 U.S. 292 (1993) noted that custody
determinations were not bound by the “best interests of the child” and that
they lacked a fundamental right to be free of all restraint. The Court found
that the juvenile’s detention asked the same question as that of the adult who
is unlawfully present.
4. To date the constitutional law on juvenile rights under the Immigration and
Nationality Act (Act) has treated the juvenile alien in the same manner as an
adult. The juvenile is entitled to the same due process and opportunities to
seek relief including asylum that an adult has.
B.

Statutory and regulatory protections
1. Just as many legislatures created juvenile courts to convey different treatment
to juvenile criminals the Congress and Attorney General have created certain
benefits or protections for the juvenile. Service of the Notice to Appear (NTA)
has been restricted under 8 C.F.R. § 103.5a(c) (ii) and 8 C.F.R. § 236.2(a),
which require that service on minors under the age of 14 shall be made upon
the person the minor resides and whenever possible service shall also be made
on the near relative, guardian, committee or friend.
2. At the immigration court hearing the Immigration Judge shall not accept an
admission of removability from an unrepresented respondent who is under the
age of 18 when the child is not accompanied by an attorney, legal
representative, relative, legal guardian, or friend. See 8 C.F.R. § 1240.10(c).
The Board of Immigration Appeals has held that the Immigration Court can
accept a factual admission but cannot accept the concession of removability.
Matter of Amaya-Castro, 21 I & N Dec. 583 (BIA 1996).
3.

“In a removal proceeding, the Service shall assign an attorney to each case
within the provisions of § 1240.10(d), and to each case in which an
unrepresented respondent is incompetent or is under 18 years of age, and is
not accompanied by a guardian, relative, or friend.” 8 C.F.R. § 1240.2(b).
This provision is best understood in light of the fact that the regulations (as
opposed to INS and ICE policy) do not invariably require Service counsel to
be present for removal proceedings. Prior to the late 1980s when the INS
decided that trial attorneys would appear at all deportation and exclusion
hearings, Immigration Judges could, and did, conduct some master calendar
hearings (particularly detained) without an INS trial attorney. The regulation
does not impose an obligation on, or allow, Service counsel to represent a
juvenile in removal proceedings.

3. In Matter of Gomez-Gomez, 23 I & N Dec. 522 (BIA 2002) the Board
approved the use of the Form I-213 in an in absentia hearing for a minor. The
Board noted that there was no indication of Congressional intent to limit

2

2010FOIA4519.000452

Section 240(b)(5)(A) to adults. The Board encouraged special efforts to
assure the reliability of the information in the I-213. See also Matter of
Ponce-Hernandez, 22 I & N Dec. 784 (BIA 1999).
4. In Matter of Mejia-Andino, 23 I & N Dec. 533 (2002) the Board held that the
service of the Notice to Appear (NTA) should be with the parent if available
in the United States. Further, the Form I-213 should reflect that any other
person served under 8 C.F.R. § 236.2(a) and 8 C.F.R. § 103.5a(c)(ii) is the
person who is most likely to insure the attendance of a young child.
5. Another special protection for the juvenile is the treatment of the juvenile
court adjudications. The Board of Immigration Appeals held, in Matter of
Devision, 22 I & N Dec. 1362, 1369-70 (BIA 2000), that a finding of
juvenile delinquency is not a conviction under §101(a)(48)(A) of the Act. The
rationale for this is that the process of the juvenile court is rehabilitative while
the adult process is punitive. “[J]uvenile delinquency adjudications are not
criminal proceedings, but are adjudications that are civil in nature.” Devison
22 I & N Dec. at 1366. The proper determination of whether or not an
adjudication under a specific ameliorative statute constitutes a conviction will
require analysis of the statute and a comparison with the standards set forth in
the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042. Devison, 22 I
& N Dec. at 1365-73. The juvenile who has been convicted, within the
meaning of § 101(a)(48)(A), in an adult court does not benefit from his
minority as the case law follows the forum rather than the age of the alien.
6. A related exception exists for foreign convictions. If the alien would have
received treatment within the juvenile system in the United States then the
foreign conviction will not result in inadmissibility. Matter of De La Nues, 18
I & N Dec. 140 (BIA 1981).
7. As an administrative policy on unaccompanied minors subject to expedited
removal, a policy memo from the INS Acting Executive Associate
Commissioner, Programs dated August 21, 1997, states that minors will be
placed in § 240 removal proceedings. To meet the requirement of section
235(b)(1)(A)(i) for a charge other than those under section 212(a)(6)(C) or
212(a)(7), the NTA should include a charge under section 212(a)(4) (likely to
become a public charge).
C.

Bond and Detention
1. Because a juvenile is expected to be in the custody of some adult at all times
the juvenile is treated differently on bond matters. A minor cannot simply
post a bond as an adult would and leave out the front door. The release of
juveniles is governed by 8 C.F.R. § 236.3 as well as the usual bond
considerations. The Immigration Judge may set a bond, but Immigration and

3

2010FOIA4519.000453

Customs Enforcement must still approve of the release to a person described
in the regulations.
2. Status as a minor is a basis for parole under 8 C.F.R. § 212.5(b)(3).
3. For purposes of detention and release, “A juvenile is defined as an alien under
the age of 18 years.” 8 C.F.R. § 236.3(a).
II. MENTAL COMPETENCY ISSUES
A. INA § 240 Removal Proceedings:
1. If it is impracticable by reason of an alien’s mental incompetency for the alien
to be present at the proceeding, the Attorney General shall prescribe
safeguards to protect the rights and privileges of the alien. INA § 240(a)(3), 8
U.S.C. § 1229(a).
2. When it is impracticable for the respondent to be present at the hearing
because of mental incompetency, the attorney, legal representative, legal
guardian, near relative, or friend who was served with copy of the notice to
appear shall be permitted to appear on behalf of the respondent. If such a
person cannot reasonably be found or fails or refuses to appear, the custodian
of the respondent shall be requested to appear on behalf of the respondent. 8
C.F.R. § 240.4 (2003).
3. An Immigration Judge should not accept an admission of removability from
an incompetent alien who is not accompanied by an attorney, legal guardian,
near relative, or friend. Additionally, the Immigration Judge may not accept
an admission of removability from the custodian of the respondent or another
officer of the institution in which the respondent is detained. See 8 C.F.R. §
1240.10(c).
4. The regulations set out special protections for mentally incompetent aliens.
The fact that such safeguards are prescribed demonstrates that mental
incompetency does not except an alien from the conduct of removal
proceedings. Both INA §240(b)(3) and 8 C.F.R. §240.4 authorize removal
hearings to take place even if an alien is mentally incompetent. A mentally
incompetent alien may be removed from the United States. See Salim v. Reno,
2000WL 33115910 (E.D.Pa.) (alien found “guilty but mentally ill,” had been
convicted under INA).
5.

“In a removal proceeding, the Service shall assign an attorney to each case
within the provisions of § 1240.10(d), and to each case in which an
unrepresented respondent is incompetent or is under 18 years of age, and is
not accompanied by a guardian, relative, or friend.” 8 C.F.R. § 1240.2(b).
This provision is best understood in light of the fact that the regulations (as

4

2010FOIA4519.000454

opposed to INS and ICE policy) do not invariably require Service counsel to
be present for removal proceedings. Prior to the late 1980s when the INS
decided that trial attorneys would appear at all deportation and exclusion
hearings, Immigration Judges could, and did, conduct some master calendar
hearings (particularly detained) without an INS trial attorney. The regulation
does not impose an obligation on, or allow, Service counsel to represent a
mentally incompetent alien in removal proceedings.

B. INA §212 Grounds of Inadmissibility:
1. Forms of mental incompetence are grounds to bar admission to the United States.
See INA § 212(a)(1)(A)(iii), 8 U.S.C. § 1182(a)(1)(A)(iii).
2. Congress further made any accompanying alien inadmissible under INA §
212(a)(10)(B), 8 U.S.C. § 1182(a)(10)(B).
C. 8 C.F.R. § 103.5a Service of Notification, Decisions, and other Papers by the
Service:
1. 8 C.F.R. § 103.5a(c)(2)(i) Persons confined.
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.
2. 8 C.F.R. §103.5a(c)(2)(i)(ii) Incompetents and minors.
In the case of mental incompetency, whether or not confined in an institution, and
in the case of a minor under 14 years of age, service shall be made upon the
person with whom the incompetent or the minor resides; whenever possible,
service shall be also be made on the near relative, guardian, committee, or friend.
C. Relief:
1. Asylum:
a. Raffington, v. INS, 340 F.3d 720 (8th Cir. 2003), the court found the alien failed
to demonstrate that she had a well-founded fear of persecution based upon her
mental disability, as required for reopening of deportation proceedings to assert an
asylum claim.

5

2010FOIA4519.000455

b. In Nelson v. INS, 232 F.3d 258 (1st Cir. 2000), the court addressed the issue of
incompetence regarding an asylum claim. The court stated:
i.

Violation of Due Process

We first examine Nelson’s claim that the Immigration Judge
effectively denied her statutory rights to counsel and a full and fair
hearing, and thus violated her Fifth Amendment right to due
process. Because deportation is a civil proceeding, rather than a
criminal one, the Sixth Amendment does not create a right to
government-provided counsel for prospective deportees. See INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 82
L.Ed. 2d 778 (1984). However, an alien is afforded the right to
counsel at his own expense. See, e.g. Rios-Berrios v. INS, 776
F.2d 859, 862 (9th Cir. 1985).
232 F.3d at 261.
ii.

Mental Incompetence

Nelson suggests that the Immigration Judge’s failure to account for
her mental incompetence by requesting custodian or other party to
appear on her behalf was a violation of her right to due process.
The INS has specifically provided for custodial or other
representation of incompetent aliens in Regulation 240.4. [FN3]
Nelson claims that her March 17, 1997, statement that her
“memory …is bad,” that she “forget[s] things and …get[s] pain,”
and thus that she was “not capable of defending [her]self” was a
statement of mental incompetency; and as such, that the
Immigration Judge was required to request a representative for her.
However, Regulation 240.4 is not applicable to this case, simply
because Nelson’s health-related complaints do not rise to the level
of mental incompetence contemplated by Regulation 240.4.
....
FN3. Regulation 240.4 allows a representative to appear on alien’s
behalf “[w]hen it is impracticable for the respondent to be present
at the hearing because of mental incompetency.” When no
representative appears, “the custodian of the respondent shall be
requested to appear”).
232 F.3d at 261-62 & n.3.
iii.

Suspension of Deportation
A. In Nee Hao Wong v. INS, 550 F.2d 521 (9th Cir. 1977), the
procedure specified in 8 C.F.R. § 241.11 (1976) (substantially
identical to the present 8 C.F.R. 1240.4) was used to deport an
institutionalized alien and upheld in the court of appeals.

6

2010FOIA4519.000456

i. The Court held that due process does not require that
deportation proceedings be postponed until the alien is
competent to participate intelligently. Wong was an
unmarried citizen of China who had been admitted as a
non-immigrant student, and who had been hospitalized
for mental disturbance. He was represented by counsel,
and accompanied by his state appointed conservator,
who testified on his behalf. 550 F.2d at 523.
ii. The Court also found that the IJ did not abuse discretion
in denying suspension of deportation, despite Wong’s
showing of the requisite hardship and residence. 550
F.2d at 524.

III. ISSUES IN POST-ORDER CUSTODY REVIEW (POCR)
A. Reason for Post-Order Custody Review
1. In interpreting the post-final order detention provision at INA § 241(a)(6), a fiveto-four majority of the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001),
held that an alien can be detained for no longer than a six-month period to effect
removal, unless there exist “certain special and ‘narrow’ nonpunitive
‘circumstances’ … where a special justification, such as a harm-threatening
mental illness, outweighs the individual’s constitutionally protected interest in
avoiding physical restraint.” Id., at 689-90. Specifically, protecting the
community from danger was one such justification that did not necessarily
diminish over time and that could warrant potentially indefinite detention. See
id., at 691.
2. As noted by the Attorney General, “the Supreme Court indicated that there may
be cases involving ‘special circumstances,’ such as terrorists or other especially
dangerous individuals, in which continued detention may be appropriate even if
removal is unlikely in the reasonably foreseeable future.” 66 Fed. Reg. 38433
(July 24, 2001). In such cases of preventative detention, the Supreme Court
explained that in addition to the dangerousness rationale, some other special
circumstance, such as mental illness, must exist to justify detention. See
Zadvydas v. Davis, 533 U.S. at 689-90.
B. Regulations for Post-Order Custody Review
1. After Zadvydas, the Attorney General directed the Acting Commissioner of the
Immigration and Naturalization Service, in consultation with the Executive Office
for Immigration Review, to promulgate regulations for the release or continued

7

2010FOIA4519.000457

custody of aliens ordered removed from the United States who cannot be removed.
66 Fed. Reg. 38433 (July 24, 2001).
2. INS and EOIR, exercising delegated authority of the Attorney General,
promulgated the regulations at 8 C.F.R. §§ 241.13-241.14. 66 Fed. Reg. 56967
(Nov. 14, 2001). Identical provisions are also found at 8 C.F.R. §§ 1241.131241.14.
3. This process permits the continued detention of a removable alien on account of the
special danger he may pose due to a mental condition or personality disorder and
for which no conditions of release can reasonably be expected to ensure the
public’s safety, even though the alien’s removal may be unlikely in the reasonably
foreseeable future. See 8 C.F.R. § 241.14(f), (j): 66 Fed. Reg. 56972 (Nov. 14,
2001); see generally Zadvydas v. Davis, 533 U.S. at 691-92.
C.

Mechanism for Post-Order Custody Review
1. ICE initiates post-order custody review (POCR) by filing a Notice of Referral to
the Immigration Judge (Form I-863) with attached documentary evidence.
2. The Immigration Court holds a reasonable cause hearing to determine whether
sufficient evidence exists to proceed to a merits hearing. Procedural and legal
issues that may arise include, but are probably not limited to:
a.

Issue as to whether alien is represented by counsel at government
expense.

b.

Issue as to whether to present witnesses at the reasonable cause stage.

3. If the Immigration Court finds reasonable cause to proceed, the court holds a merits
hearing to determine whether to allow the continued detention of the alien.
a.

b.

The Government bears the burden of proving that the alien has
committed a crime of violence, poses a danger because of a mental
disorder, and cannot be released on any conditions that would assure the
safety of the public. See 8 C.F.R. § 241.14(h)(2), (i)(1).
Board and Art. III precedent regarding POCR hearings is almost nonexistent. Issues that may arise include, but are not limited to:
i. Issue as to whether the psychiatrist retained by the Public Health
Service is professionally competent. (This issue may be resolved
when ICE begins to use a contract psychiatrist at Columbia Care
Center in South Carolina.)

8

2010FOIA4519.000458

ii. Issue as to whether the psychiatrist advised the alien that his
statements are not protected by the psychotherapist-patient
privilege.
iii. Issue as to whether the psychiatrist and the alien understood each
other or whether the psychiatrist used a competent interpreter.
iv. Issue when the defense presents contrary expert witness(es).
v. Issue as to whether POCR proceedings can be held in the absence
of the alien because of his disruptions, uncooperativeness, or
obvious mental instability.
c.

Issue as to what witnesses to call (e.g., police officers, victims, other
mental health experts).

d.

Issue as to what conditions of release to consider (e.g., electronic
monitoring, half-way house, probation, civil commitment).

e.

Issue as to where alien is to be detained during the POCR proceedings.

4. The alien may file a preceding or concurrent habeas corpus petition in federal court
challenging the POCR regulations and his continued detention while in POCR
proceedings citing one or more issues.
a.

Issue as to the constitutionality of the regulations.

b.

Issue as to coordination with U.S. Attorneys’ Office and the Office of
Immigration Litigation.

c.

Issue as to how much evidence to file in federal court.

d.

Issue as to coordination with state authorities on probation violations or
civil commitment.

9

2010FOIA4519.000459

AMERICAN BAPTIST CHURCHES
& TEMPORARY PROTECTED STATUS

V.

American Baptist Churches v. Thornburgh 760 F. Supp. 796 (N.D. Cal. 1991.
(ABC)

A. Settlement Agreement: An eligible class member who registers for benefits and
applies for asylum by the agreed-upon dates is entitled to an initial or de novo asylum
interview and adjudications.
Eligibility Requirements: 1
1. be a class member;
2. have registered for ABC benefits by the requisite date;
3. have applied for asylum by the requisite date;
4. not have been convicted of an aggravated felony; and
5. not have been apprehended at entry after December 19, 1990.
Class members:
1. All Salvadorans physically present in the United States on or before
September 19, 1990, and
2. All Guatemalans physically present in the United States on or before
October 1, 1990.
Registration:
1. A Guatemalan class member who registered on or before December 31, 1991.
2. A Salvadoran class member who registered on or after January 1, 1991 and on
or before October 30, 1991.
3. A Salvadoran class member who registered for Temporary Protected Status
(TPS) on or after January 1, 1991, and on or before October 30, 1991.
Asylum Application (Form I-589) Filing Dates:
1. Guatemalan class member filed on or before January 3, 1995.
2. Salvadoran class members filed on or before January 31, 1996.
Class Members Excluded in the Settlement Agreement: 2
1. Any class member who has been convicted of an aggravated felony; and
2. Any class member who was apprehended at the time of entry into the United
States after December 19, 1990.

1

Asylum officers have the responsibility for making substantive determinations regarding a class member’s
eligibility for ABC.
2
The class members are not eligible for ABC benefits, even if they meet the registration and filing
requirements.
Tammy L. Fitting
1
Assistant Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000460

B.
Benefits: Aliens are entitled to a stay of deportation. Detention of a class
member is permissible only if: 3 convicted for a involving moral turpitude for which the
sentence actually imposed exceeded a term of imprisonment in excess of six months or;
poses a national security risk or a threat to public safety. After March 31, 1997, class
members are subject to mandatory detention IIRIRA

II.

Temporary Protected Status (TPS)
A. Section 244 of the Immigration and Nationality Act establishes:
A temporary safe haven in the United States for nationals of a foreign state if the
Attorney General determines:
1. There is an ongoing armed conflict within the state posing a serious threat to
personal safety of the country’s national’s if returned there; or
2. There has been an earthquake, flood drought, epidemic or other environment
disaster and the foreign state is unable to handle the return of its nationals and
the state has requested designation;
3. There exists extraordinary and temporary conditions in the foreign state that
prevents aliens who are nationals from returning safely.
4. Designations may be for 6 to 18 months and may be extended.
A.
1.
2.
3.
4.
5.
C.

3

Eligibility:
Establish identity and nationality of TPS country.
Must be physically present and continually residing in the United States since
the date of designation.
Must be inadmissible.
Must not be ineligible because of a conviction for felony or two or more
misdemeanors.
Register for TPS within the required period.

If an alien is granted Temporary Protected Status:
1) The alien shall not be deported or removed during the TPS period.
2) The alien shall not be detained on the basis of his or her illegal status.
3) The removal proceeding will be administratively closed upon filing of the
application.

A likelihood to abscond is not a reason to detain an eligible class member.

2

Tammy L. Fitting
Assistant Chief Counsel
Seattle Office of Chief Counsel

2010FOIA4519.000461

ICE

Recurring Issues Involving
“Admission” and Adjustment of
Status I – Applicable Law
Matt Downer, APLD
Ron Lapid, Deputy Chief, APLD
Michael Sheridan, USCIS
Appellate and Protection Law Division Conference
Chicago, Illinois
May 2009

2010FOIA4519.000462

ICE

Admission Topics
•
•
•
•
•
•

Pre-IIRIRA “Entry Doctrine”
IIRIRA and the “admission” concept
Naturalization and admission
Admission at the Border – Procedural versus
Substantive legal requirements
Adjustment of Status as an admission
Removability and Admission

2010FOIA4519.000463

USCIS

All Aliens Subject to
Inspection
•
•
•
•

INA § 235(a)(3) provides that all aliens are
subject to immigration inspection
Alien is defined in INA § 101(a)(3) as any
person who is not a citizen or national of
the United States
Under INA § 235(a)(1), an alien present in
the United States who has not been
admitted is deemed an applicant for
admission
Applicable regulations are 8 C.F.R. Part
235
2010FOIA4519.000464

USCIS

Ports-of-Entry
•
•
•

A port-of-entry (POE) is an authorized
location through which one can seek
admission to the U.S.
May be land border, airport, or seaport
POEs are prescribed by regulation, found
at 8 C.F.R. § 100.4(c)(2)

2010FOIA4519.000465

USCIS

Presumptions
•
•
•

All aliens arriving in the U.S. are presumed
to be intending immigrants
An immigrant means every alien, except an
alien who is within one of the classes of
nonimmigrant aliens specified in INA §
101(a)(15)
With certain exceptions, nonimmigrants are
coming for a temporary period, and for a
temporary purpose, in one of the various
specific nonimmigrant classifications

2010FOIA4519.000466

USCIS

The Law before 1996
•
•

The law of entry and admission changed
significantly with the enactment of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)
To understand the current law, it is
important to review the law of “entry” prior
to 1996

2010FOIA4519.000467

USCIS The Importance of “Entry”
•

The term "entry" means any coming of an
alien into the United States, from a foreign
port or place or from an outlying
possession, whether voluntarily or
otherwise…
INA § 101(a)(13) (as in effect before
4/1/1997)

2010FOIA4519.000468

USCIS The Importance of “Entry”
•

except that an alien having a lawful
permanent residence in the United States
shall not be regarded as making an entry
into the United States for the purposes of
the immigration laws if the alien proves to
the satisfaction of the Attorney General that
his departure to a foreign port or place
or to an outlying possession was not
intended or reasonably to be expected
by him or his presence in a foreign port or
place or in an outlying possession was not
voluntary:
2010FOIA4519.000469

USCIS The Importance of “Entry”
•

An alien who had “entered,” even
unlawfully, could be removed only through
deportation proceedings under former INA
§ 242
ƒ Government bore the burden of proving
deportability by “clear, convincing and
unequivocal evidence”
ƒ IJ could grant release from custody while
the proceedings were pending
ƒ Suspension of deportation was available to
aliens in deportation proceedings

2010FOIA4519.000470

USCIS The Importance of “Entry”
•

Alien who had not “entered” was subject to
removal through an exclusion proceeding
ƒ Release available only through parole,
which IJ could not grant
ƒ Suspension of deportation not available in
exclusion proceedings

2010FOIA4519.000471

USCIS

Entry – Before 1996
•

An alien made an “entry” if all 3 prerequisites
were met:
1.Physical presence in the U.S. by
crossing the territorial limits
2.Either
a.Inspection and admission by an
immigration officer OR
b.Actual and intentional evasion of
inspection at the nearest inspection
point
AND
ŠFreedom from official restraint
2010FOIA4519.000472

USCIS

Entry without Inspection
(EWI)
•
•
•

Before 1996, an alien actually and
intentionally evading inspection was said to
have “entered without inspection,”
abbreviated as EWI
That alien was subject to removal from the
United States as a deportable alien under
INA § 237(a)(1)(B) [and INA § 241(a)(2) of
older versions of the INA]
An alien making a false claim to U.S.
citizenship at a POE also entered without
inspection, since U.S. citizens are not
subject to immigration inspection, see Reid
v. United States, 420 U.S. 619, 625 (1975)
2010FOIA4519.000473

USCIS Apprehension at a POE
•

•

In contrast to aliens entering without
inspection, an alien apprehended at a POE
was placed in exclusion proceedings prior
to 1996, because the alien had not effected
an entry into the United States
Even if an inspector had decided to “admit”
the alien, the alien was still subject to
exclusion, rather than deportation, if
apprehended before leaving the inspection
facility. See Correa v. Thornburgh, 901
F.3d 1166 (2d Cir. 1990)

2010FOIA4519.000474

USCIS

Fleuti Doctrine
•

•
•
•

Old definition of entry provided that an LPR
did not make an “entry” on returning if the
LPR’s departure “was not intended or
reasonably to be expected” or the LPR’s
presence abroad “was not voluntary”
This “exception” was rooted in cases which
required an intentional departure in order
for the return to be an “entry”
Delgadillo v. Carmichael, 332 U.S. 388
(1947) – saved from sinking of torpedoed
domestic sea carrier and taken to Cuba
DiPaquale v. Karnuth, 158 F.2d 878 (2d
Cir. 1947) – train from Buffalo to Detroit
happened to pass through Canada
2010FOIA4519.000475

USCIS

Fleuti Doctrine
•

•

•

The Supreme Court decided that the
Congressional endorsement of these cases
justified the Court saying that an LPR who
knowingly and intentionally left the U.S. did
not make an “entry” upon returning if the
departure was “brief, casual and innocent”
The Government could establish that an
absence was “intended” only if the alien left
with “an intent to depart in a manner . . .
meaningfully interruptive of the alien’s
permanent residence”
Rosenberg v. Fleuti, 374 U.S. 449 (1963)
2010FOIA4519.000476

USCIS

Fleuti Doctrine
•
•

If there was no “meaningful” as opposed to
“intentional” departure, the alien was not
subject to exclusion upon returning
But whether the alien had made a
“meaningful” departure could be litigated in
an exclusion proceeding. Landon v.
Plasencia, 459 U.S. 21 (1982).

2010FOIA4519.000477

USCIS

The Law after IIRIRA –
Admission
•
•

•
•

Key concept is now “admission” rather than
“entry”
INA § 101(a)(13) defines admission and
admitted to mean “with respect to an alien,
the lawful entry of the alien into the United
States after inspection and authorization by
an immigration official”
Now, removal as a deportable alien applies
only to an alien who has been “admitted”
INA § 237(a) expressly applies only to an
“alien . . . in and admitted to the United
States . . .”
2010FOIA4519.000478

USCIS Present without Admission
or Parole
•
•
•
•

Alien who is present without having been
admitted is no longer entitled to removal
proceedings as a deportable alien
Rather, the alien, under INA § 235(a)(1), is
deemed an “applicant for admission”
Even if he or she has made it from the
border crossing to the middle of Kansas,
the alien is still subject to removal as an
inadmissible alien
The charge of inadmissibility is INA §
212(a)(6)(A)(i)
2010FOIA4519.000479

USCIS

Lingering Relevance of “Entry”
•
•

As noted, “entry” no longer forms the basic
distinction between those subject to
removal as deportable aliens and those
subject to removal as inadmissible aliens
But “entry” is still an essential element of
“admission”; an alien must still “enter” the
United States

2010FOIA4519.000480

USCIS 8 C.F.R. § 1.1(q) – Arriving
Alien
“An applicant for admission coming or
attempting to come into the United States
at a port-of-entry, or an alien seeking
transit through the United States at a portof-entry, or an alien interdicted in
international or United States waters and
brought to the United States by any
means, whether or not to a designated
port-of-entry, and regardless of the means
of transport. An alien remains an arriving
alien even if paroled pursuant to section
212(d)(5) of the Act, and even after any
such parole is terminated or revoked…”
2010FOIA4519.000481

USCIS

Arriving Alien Concepts
•
•
•
•

All arriving aliens are applicants for
admission, but not all applicants for
admission are arriving aliens
Aliens who are PWAP are not arriving
aliens, but a PWAP is an applicant for
admission
A parolee who is an applicant for
adjustment of status is definitely an
applicant for admission
And an adjustment applicant who has
departed and then returned pursuant to
advance parole is also an applicant for
admission
2010FOIA4519.000482

USCIS

LPRs as Applicants for
Admission
•
•

A lawful permanent resident (LPR) is
generally not an applicant for admission.
Under INA § 101(a)(13)(C), however, an
LPR is an applicant for admission if the alien
has:
ƒ Abandoned or relinquished LPR status
ƒ Been absent from the U.S. 180 days or more
continuously
ƒ Engaged in illegal activity after departing U.S.
ƒ Departed the U.S. while in removal or
extradition proceedings
2010FOIA4519.000483

USCIS

LPRs as Applicants for
Admission
ƒ Committed an offense identified in INA §
212(a)(2) unless it has been waived
ƒ Attempted to enter at a time or place other
than designated, or has not been admitted
after inspection and authorization

2010FOIA4519.000484

USCIS

LPRs as Applicants for
Admission
•
•

Fleuti doctrine has been fully abrogated.
Any LPR who falls under INA §
101(a)(13)(C) is now an “applicant for
admission” and so can be removed as an
inadmissible, rather than deportable, alien
ƒ Matter of Collado-Munoz, 21 I&N Dec. 1061
(BIA 1998)

•

Of course, there are exceptions . . . .

2010FOIA4519.000485

USCIS

LPRs as Applicants for
Admission
•

In the FOURTH and NINTH Circuits Fleuti
still bars an inadmissibility charge against
an LPR returning from a trip abroad, if the
charge is based on a guilty plea that predates IIRIRA
ƒ Camins v. Gonzales, 500 F.3d 872 (9th Cir.
2007)
ƒ Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.
2004)

2010FOIA4519.000486

USCIS

LPRs as Applicants for
Admission
•
•
•

A lawful permanent resident (LPR) may
also qualify as an “arriving alien” under 8
C.F.R. § 1.1(q)
But an LPR is not subject to expedited
removal, see 8 C.F.R. § 235.3(b)(5)(ii)
Once LPR status is verified, the alien, if
inadmissible, is entitled to removal
proceedings under INA § 240

2010FOIA4519.000487

ICE

INA § 101(a)(13)(A)
•

INA § 101(a)(13)(A): “The terms
‘admission’ and ‘admitted’ mean, with
respect to an alien, the lawful entry of the
alien into the United States after inspection
and authorization by an immigration
officer.”

2010FOIA4519.000488

ICE

What Is a “Lawful Entry” for
Purposes of INA §
101(a)(13)(A)?
•

EITHER:
ƒ Procedural regularity
Š Inspected and authorized by an

immigration officer, regardless of any
substantive legal defect
Š For example:
• With a fraudulent document
• Inadmissible

•

OR
ƒ Compliance with substantive legal
requirements
2010FOIA4519.000489

ICE

INA § 101(a)(13)(A)
Requires Only Procedural
Regularity
•

Reading the INA as a whole, procedural
regularity is all that is required for an
admission under INA § 101(a)(13)(A)

2010FOIA4519.000490

ICE

Matter of Areguillin,
17 I&N Dec. 308 (BIA 1980)
•

The Board of Immigration Appeals (Board or
BIA) reaffirmed that an “admission” occurs
when an inspecting officer communicates to an
applicant for admission the former’s
determination that the applicant is not
inadmissible and permits the applicant to pass
through the port of entry, see Areguillin, 17 I&N
Dec. at 310 n.6 (citing Matter of V-Q-, 9 I&N
Dec. 78 (BIA 1960))

2010FOIA4519.000491

ICE

IIRIRA § 301(a)
•

In amending INA § 101(a)(13) there is no
indication that Congress meant to repeal
the Board’s prior interpretation of the term
“admission,” see H.R. Rep. 104-828, at
207 (1996) (Conf. Rep.), 1996 WL 563320
(brief discussion on IIRIRA § 301(a))

2010FOIA4519.000492

ICE

IIRIRA § 301(a)
•
•

Congress knew that an ‘entry’ either
involved an inspection and admission by
an immigration officer, or an actual and
intentional evasion of inspection
Congress might have inserted “lawful”
before “entry”
ƒ To reinforce the use of the language “after
inspection and authorization by an
immigration officer” at the end of the statute
ƒ To move away from actual and intentional
evasion

2010FOIA4519.000493

ICE

“Lawfully Admitted” in the
INA
•
•

214(n)(2)(A) (“lawfully admitted into the United States”)

•
•

245(b) (record of “lawful admission”)

•

248 (“alien lawfully admitted to the United States as a
nonimmigrant”)

•
•

249 (“lawful admission for permanent residence”)

•

320(a)(3) (“lawful admission for permanent residence”)

240A(a)(1) (“alien lawfully admitted for permanent
residence”)
245A(a) (“alien lawfully admitted for temporary
residence”)

318 (“lawfully admitted to the United States for
permanent residence”)

2010FOIA4519.000494

ICE

“Lawfully Admitted” in the
INA
•

These statutes refer to “lawfully admitted”
instead of solely “admitted”
ƒ The word “lawfully” modifies “admitted”
ƒ Under INA § 101(a)(13)(A), admission
already requires a “lawful entry”

•

When expressly describing the term
“admitted,” “lawfully” must be given some
meaning
ƒ “Lawfully admitted” requires compliance
with substantive law

2010FOIA4519.000495

ICE

INA § 101(a)(20)
•

INA § 101(a)(20) incorporates “lawfully
admitted”
ƒ “The term ‘lawfully admitted for permanent
residence’ means the status of having been
lawfully accorded the privilege of residing
permanently in the United States as an
immigrant in accordance with the
immigration laws, such status not having
changed”

2010FOIA4519.000496

ICE

INA § 101(a)(20)
•

Matter of Koloamatangi, 23 I&N Dec. 548
(BIA 2002)
ƒ An alien who acquired LPR status by fraud
or misrepresentation has not been “lawfully
admitted for permanent residence” for
purposes of INA § 240A(a)
ƒ The Board interpreted INA § 101(a)(20) to
require substantive legal compliance

•

If INA § 101(a)(13) required substantive
legal compliance, the word “lawfully” before
“admitted” in INA § 101(a)(20) would be
superfluous
2010FOIA4519.000497

ICE

INA § 237(a)(1)(A)
•

INA § 237(a)(1)(A) would be meaningless:
ƒ The statute applies to an alien who was
“admitted” to the United States, but who
was inadmissible at the time of entry
ƒ If substantive legal compliance were
required, an alien could never have been
“admitted” for purposes of the statute, and
the ground of removability under INA §
237(a)(1)(A) could never be used

2010FOIA4519.000498

ICE

INA § 237(a)(1)(H)
•

INA § 237(a)(1)(H) would be meaningless:
ƒ The statute provides a waiver for aliens
inadmissible at the time of admission based
on INA § 212(a)(6)(C)(i) (fraud or material
misrepresentation)
ƒ If substantive legal compliance were
required, an alien never could never have
been “admitted” due to fraud or
misrepresentation
ƒ Therefore, no alien could ever be eligible for
the waiver

2010FOIA4519.000499

ICE

INA § 212(h)
•

•

Waiver of inadmissibility under INA § 212(h)
is unavailable to aliens who, among other
requirements, have also “previously been
admitted to the United States as an alien
lawfully admitted for permanent residence”
Matter of Ayala, 22 I&N Dec. 398 (BIA 1998)
ƒ Alien argued that his previous criminal
behavior before his last entry as an LPR
meant that he had procured admission by
fraud
ƒ If “admitted” required substantive legal
compliance, fraudulent entries would allow
aliens to escape from the statutory bar
2010FOIA4519.000500

ICE

Supporting Caselaw
•

•

Emokah v. Mukasey, 523 F.3d 110 (2d Cir.
2008) (ruling that an alien who enters the
U.S. after inspection and authorization has
been “admitted” even if such admission were
obtained by fraud or misrepresentation)
Bolvito v. Mukasey, 527 F.3d 428, 431 (5th
Cir. 2008) (stating that under INA § 245(a),
an “admitted” alien is an “individual who has
presented himself for inspection by an
immigration officer and who has been
allowed to enter the country”) (citing INA §
101(a)(13)(A))

2010FOIA4519.000501

ICE

Procedural Regularity and
Fraud
•

False Claim to U.S. Citizenship

•

Fraudulent Green Card

•

Nonimmigrant Visa Obtained by
Fraud

2010FOIA4519.000502

ICE

Procedural Regularity and
Fraud
•
•

If an alien during the admission process
falsely (and successfully) claims that he or
she is a U.S. citizen, the alien is not
“admitted” within the meaning of the INA
True even before IIRIRA, see Reid v. United
States, 420 U.S. 619, 625 (1975); Matter of
Wong, 12 I&N Dec. 733 (BIA 1968); Matter of
Woo, 11 I&N Dec. 706 (BIA 1966); Matter of S,
9 I&N Dec. 599 (BIA 1962); Matter of F, 9 I&N
Dec. 54 (R.C. 1960)

2010FOIA4519.000503

ICE

Procedural Regularity and
Fraud
•

•

Under INA § 101(a)(13)(C), a returning
LPR is not regarded as seeking an
“admission” to the United States unless
one or more of the circumstances
described in clauses (i) through (vi) of the
statute are true
Read together, INA §§ 235 and 101(a)(13)
provide that a returning LPR is subject to
such inspection as is necessary to
determine whether the alien should
undergo the full rigor of inspection applied
to all arriving aliens
2010FOIA4519.000504

ICE

Procedural Regularity and
Fraud
•

An alien who is permitted to enter the United
States as a returning LPR, regardless of
whether he or she truly has such status, does
not accomplish an “admission” for purposes of
the INA

2010FOIA4519.000505

ICE

Procedural Regularity and
Fraud
•
•

An alien who uses a nonimmigrant visa to
procure admission by fraud has been
“admitted” within the meaning of INA §
101(a)(13)(A)
Example: nonimmigrant K visa

2010FOIA4519.000506

ICE

Adjustment of Status and
Admission
•

Two Issues:
ƒ Whether to be “admitted” for purposes of
adjustment of status under INA 245(a)
requires only procedural regularity
ƒ Whether adjustment of status constitutes an
admission for purposes of the INA

2010FOIA4519.000507

ICE

“Admitted” for Purposes
of INA § 245(a)
•

Orozco v. Mukasey, 521 F.3d 1068 (9th
Cir. 2008), vacated, 546 F.3d 1147 (9th
Cir. 2008)
ƒ Court found alien ineligible for adjustment of
status under INA § 245(a) because he had
not been “admitted” within the meaning INA
§ 101(a)(13)(A)
ƒ Problems with court’s holding:
Š Legally inconsistent with the lodged
charge of removability under INA §
237(a)(1)(A)
Š Alien claimed that he had fooled an
inspector into believing that he was a
returning LPR
2010FOIA4519.000508

ICE

“Admitted” for Purposes
of INA § 245(a)
Š Inconsistent with the legislative history of

INA § 245(a)
• As originally enacted, the statute had
allowed an alien “lawfully admitted” as a
“bona fide” immigrant (who met other
requirements) to adjust status
• In 1960, Congress amended the statute
to allow aliens who were “inspected and
admitted or paroled” (and who met other
requirements) to adjust status
• The purpose of the amendment was to
give the former INS more flexibility, see
Matter of Pires De Silve, 10 I&N Dec.
191 (BIA 1963)
2010FOIA4519.000509

ICE

The Lessons of Orozco
•
•

With respect to the terms “admission” and
“admitted,” do not be legally inconsistent in
the same case
Remember that it is the alien’s burden to
show time, place, and manner of entry; if
the alien fails to meet that burden, it is
appropriate to lodge the charge of
inadmissibility under INA § 212(a)(6)(A)(i)(I)

2010FOIA4519.000510

USCIS Is Adjustment of Status an
“Admission”?
•
•
•

Before IIRIRA, it was well-settled that an
adjustment of status was not a new “entry,”
see Matter of Rainford, 20 I&N Dec. 598
(BIA 1992)
An adjustment applicant stands in the
position of an applicant for admission at a
POE, see, e.g., Matter of Rafipour, 16 I&N
Dec. 470 (BIA 1978)
Even an admitted applicant for adjustment
of status (e.g., a tourist) is treated as an
applicant for admission for purposes of the
adjustment application, see Matter of
Alarcon, 20 I&N Dec. 557 (BIA 1992)
2010FOIA4519.000511

USCIS Is Adjustment of Status an
“Admission”?
•
•

Thus, any inadmissibility grounds can
potentially bar adjustment of status
INA § 245(b) provides that upon approval
of an application for adjustment of status
under INA § 245(a), the Secretary of
Homeland Security shall record the alien’s
lawful admission for permanent residence
as of the date of the approval

2010FOIA4519.000512

USCIS Is Adjustment of Status an
“Admission”?
•

•

And while, before IIRIRA, adjustment was
not a new entry for those who had already
entered as a matter of law, it could, in
certain cases, provide the final element of
“admission” necessary to create an entry,
see Matter of Jimenez-Lopez, 20 I&N Dec.
738, 741-42 & n.3 (BIA 1993)
But is an application for adjustment actually
an application for admission, such that
granting adjustment is necessarily an
“admission” for purposes of the INA?
2010FOIA4519.000513

ICE

Adjustment of Status as an
“Admission”
•

Removability
ƒ INA § 237(a)(2)(A)(i)
Š CIMT within 5 years “after the date of
admission”
ƒ INA § 237(a)(2)(A)(iii)
Š Aggravated felony at any time “after
admission”

•
•

Waiver of Inadmissibility under INA §
212(h)
Naturalization
2010FOIA4519.000514

ICE

Adjustment of Status as an
“Admission”
•

Matter of Rosas, 22 I&N Dec. 616 (BIA
1999)
ƒ Alien was never admitted at the border, but
did adjust status
ƒ Alien was charged with removability under
INA § 237(a)(2)(A)(iii) for committing an
aggravated felony “after admission”
ƒ The Board held that the phrase “after
admission” in INA § 237(a)(2)(A)(iii)
includes both aliens “admitted” at the time
of entry and those “lawfully admitted for
permanent residence” through adjustment
2010FOIA4519.000515

ICE

Adjustment of Status as an
“Admission”
•

Matter of Shanu, 23 I&N Dec. 754 (BIA
2005), rev’d sub nom. Aremu v. DHS, 450
F.3d 578 (4th Cir. 2006)
ƒ

ƒ

ƒ

Adjustment constitutes an “admission” for
purposes of INA § 237(a)(2)(A)(i)
Š Even in situations where the alien was
previously admitted as a nonimmigrant
Each and every date of admission qualifies
as a potentially relevant date of admission
under INA § 237(a)(2)(A)(i)
Fourth Circuit reversed, finding that an
adjustment is not an “admission” for
purposes of INA § 237(a)(2)(A)(i)
2010FOIA4519.000516

ICE

Adjustment of Status as an
“Admission”
•
•

Other circuit courts have agreed with
Aremu, rejecting the Board’s rationale in
Shanu
However, all the circuit courts have found
or left open the possibility that adjustment
of status can mean being “admitted” in
other statutory contexts

2010FOIA4519.000517

ICE

Adjustment of Status as an
“Admission”
•

Ninth Circuit
ƒ Ocampo-Duran v. Ashcroft, 254 F.3d 1133
(9th Cir. 2001) – Adjustment of status is an
“admission” for purposes of INA §
237(a)(2)(A)(iii)
ƒ Shivaraman v. Ashcroft, 360 F.3d 1142 (9th
Cir. 2004)
Š Adjustment is not an “admission” for
purposes of INA § 237(a)(2)(A)(i)
Š Distinguished Rosas and OcampoDuran because they interpreted
“admission” in the context of INA §
237(a)(2)(A)(iii)
2010FOIA4519.000518

ICE

Adjustment of Status as an
“Admission”
•

Seventh Circuit
ƒ Abdelqadar v. Gonzales, 413 F.3d 668 (7th
Cir. 2005)
Š Adjustment of status is not an “admission”
for purposes of INA § 237(a)(2)(A)(i)
Š Found Rosas to be context-specific, so
that its reading of “admission” in INA §
237(a)(2)(A)(iii) does not mean that the
term should have the same meaning in
INA § 237(a)(2)(A)(i)

2010FOIA4519.000519

ICE

Adjustment of Status as an
“Admission”
•

Sixth Circuit
ƒ Zhang v. Mukasey, 509 F.3d 313 (6th Cir.
2007)
Š Adjustment of status is not an “admission”
for purposes of INA § 237(a)(2)(A)(i)
Š Found that Rosas does not address the
question of whether adjustment of status
can mean being “admitted” for purposes
of INA § 237(a)(2)(A)(i)

2010FOIA4519.000520

ICE

Adjustment of Status as an
“Admission”
•

Fifth Circuit
ƒ Martinez v. Mukasey, 519 F.3d 532 (5th Cir.
2008)
Š Adjustment of status is not an “admission”
for purposes of precluding eligibility for the
waiver under INA § 212(h)
ƒ In response to a motion to amend filed by the
Government, the Fifth Circuit amended its
original decision to clarify that its holding is
limited to the context of INA § 212(h)

2010FOIA4519.000521

USCIS Admission & Naturalization
•
•
•
•

Generally, an alien must have been
“lawfully admitted for permanent residence”
in order to be eligible for naturalization
If adjustment is not an “admission,” can an
LPR by adjustment ever qualify for
naturalization?
Dicta in Martinez suggests the solution.
Martinez v. Mukasey, 519 F.3d 532, 546
(5th Cir. 2008)
“Lawfully admitted for permanent
residence” is a single concept, defined in
INA § 101(a)(20) – a “term of art”
2010FOIA4519.000522

USCIS Admission & Naturalization
•
•
•

Unlike INA § 212(h), INA §§ 316 and 318
do not contain the odd construction
“admitted . . . as an alien lawfully admitted
for permanent residence”
Rather, they speak of the alien as “being”
or “having been” lawfully admitted for
permanent residence
Even if Martinez were to become the
standard interpretation of INA § 212(h), it
should not affect the naturalization
eligibility of someone who acquired LPR
status by adjustment, rather than with an
immigrant visa
2010FOIA4519.000523

USCIS Admission & Naturalization
•
•
•
•

INA § 310(d) makes clear that one can
become a citizen only as stated in the law
Eligibility requires “strict compliance with
the terms of the authorizing statute,” INS
v. Pangilinan, 486 U.S. 875, 884 (1988)
An alien is eligible for naturalization only if
the acquisition of LPR status was
substantively lawful. Federenko v. United
States, 449 U.S. 490, 514-15 (1981)
Failure to comply with all relevant
requirements for becoming an LPR makes
the alien ineligible for naturalization
2010FOIA4519.000524

ICE

Illegal Re-Entry and
Admission
•

An entry may be a “lawful entry” for
purposes of INA § 101(a)(13)(A), but may
also be an “illegal re-entry” for purposes of
INA § 241(a)(5)

2010FOIA4519.000525

ICE

Questions or Comments?

2010FOIA4519.000526

NOTICE TO APPEAR
Guidelines For Drafting Factual Allegations
and Section 237(a) Charges
Involving Aliens

In and Admitted to
the United States

POST - IIRIRA 96

July 30, 1997

2010FOIA4519.000527

RI2A1
Inadmissible at Entry or Adjustment:
CIMT Conviction Before Entry or Adjustment
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________, in violation of ________ .
OR
You admit having committed, on or about __________, the following acts:______________ ,
which constitute the essential elements of ________, a crime involving moral turpitude. Before
making this admission, you were given a definition of the crime and it was explained to you in
understandable terms.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who have been convicted of, or who admit having
committed, or who admit committing acts which constitute the essential elements of a crime
involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to
commit such a crime under Section 212(a)(2)(A)(i)(I) of the Act.

July 30, 1997
- p. 2 -

2010FOIA4519.000528

RI2A2
Inadmissible at Entry or Adjustment:
Controlled Substance Conviction Before Entry or Adjustment
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ , to wit:________ , in violation of ________;
OR
You admit having committed, on or about __________, the following acts:________ , which
constitute the essential elements of _________, to wit: _________, a violation of a law or
regulation relating to a controlled substance.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more classes of aliens inadmissible by the
law existing at such time, to wit: aliens who have been convicted of, or who admit having
committed, or who admit committing acts which constitute the essential elements of a violation of
(or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in section 102 of the Controlled Substances
Act (21 U.S.C. 802)) under section 212(a)(2)(A)(i)(II) of the Act.

July 30, 1997
- p. 3 -

2010FOIA4519.000529

RI2B
Inadmissible at Entry or Adjustment:
Two or More Convictions & Sentenced to at Least Five Years
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
________ in violation of ________ , for which you received a sentence of ________ ;

5.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
________ in violation of ________ , for which you received a sentence of ________ .
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who have been convicted of two or more offenses
(other than purely political offenses) for which the aggregate sentences to confinement were five
years or more, under Section 212(a)(2)(B) of the Act.

July 30, 1997
- p. 4 -

2010FOIA4519.000530

RI2D
Inadmissible at Entry or Adjustment:
Prostitution Within 10 Years of Entry
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

Within 10 years of the date of your admission or adjustment of status, you engaged in
prostitution, to wit: ________ .
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who have engaged in prostitution within 10 years of
the date of application for a visa, admission, or adjustment of status under Section 212(a)(2)(D)(i) of
the Act.

July 30, 1997
- p. 5 -

2010FOIA4519.000531

RI5A
Inadmissible at Entry or Adjustment:
No Labor Certification
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;

4.

You entered the United States for the purpose of performing skilled or unskilled labor;

5.

At the time of your admission you did not possess or present a valid labor certification issued by
the Secretary of Labor, nor were you properly exempted therefrom.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or adjustment of status, you were within one or more of the classes of aliens inadmissible by
the law existing at such time, to wit: any alien who seeks to enter the United States for the purpose
of performing skilled or unskilled labor and in whose case the Secretary of Labor has not made the
certification as provided by Section 212(a)(5)(A)(i) of the Act.

July 30, 1997
- p. 6 -

2010FOIA4519.000532

RI6C1
Inadmissible at Entry or Adjustment:
Seeking Admission or Other Benefit by Fraud
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You procured your admission, visa, adjustment, or other documentation or benefit by fraud or by
willfully misrepresenting a material fact, to wit:________ .
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who seek to procure, or have sought to procure, or
who have procured a visa, other documentation, or admission into the United States, or other benefit
provided under the Act, by fraud or by willfully misrepresenting a material fact, under Section
212(a)(6)(C)(i) of the Act.

July 30, 1997
- p. 7 -

2010FOIA4519.000533

RI6E
Inadmissible at Entry or Adjustment:
Alien Smuggling
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you knowingly encouraged, induced, assisted, abetted, or aided
________ , an alien, to enter or try to enter the United States at or near ________ , in violation of
law.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who at any time knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in
violation of law, under Section 212(a)(6)(E)(i) of the Act.

July 30, 1997
- p. 8 -

2010FOIA4519.000534

RI6F
Inadmissible at Entry or Adjustment:
274C Final Order
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , a final order for violating Section 274C of the Act was issued against
you.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who are the subject of a final order for a violation of
Section 274C of the Act, pursuant to Section 212(a)(6)(F) of the Act.

July 30, 1997
- p. 9 -

2010FOIA4519.000535

RI7A1
Inadmissible at Entry or Adjustment:
Immigrant Admitted Without Valid Documents
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;

4.

At that time you intended to remain permanently or indefinitely in the United States;

5.

You did not then possess or present a valid immigrant visa, reentry permit, border crossing
identification card, or other valid entry document, and you were not exempt therefrom.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: alien immigrants who are not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry
document required by the Act, or who are not in possession of a valid unexpired passport, or other
suitable travel document, or identity and nationality document if such document is required by
regulations issued by the Attorney General pursuant to Section 212(a)(7)(A)(i)(I).

July 30, 1997
- p. 10 -

2010FOIA4519.000536

RI7B2
Inadmissible at Entry or Adjustment:
Nonimmigrant Admitted Without Valid Documents
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You did not then possess or present a nonimmigrant visa, border crossing card, or other
document valid for your admission into the United States.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who are nonimmigrants not in possession of a valid
nonimmigrant visa or border crossing identification card and not exempted from the possession
thereof by the Act or regulations issued thereunder, pursuant to Section 212(a)(7)(B)(i)(II) of the
Act.

July 30, 1997
- p. 11 -

2010FOIA4519.000537

RI9A1
Inadmissible at Entry or Adjustment:
Alien Previously Removed Once, as an Arriving Alien,
Not Aggravated Felons -- 5 Year Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were previously ordered removed under section 235(b)(1) on _______________, initiated
upon your prior arrival in the United States;
OR
You were previously ordered removed at the end of proceedings under section 240 on
_________________, initiated upon your prior arrival in the United States;

3.

4.

You were removed from or you departed the United States pursuant to that order on or about
____________;

5.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

5.

6.

You were admitted or you adjusted status within five years of the date of that removal; and

7.

You did not receive the prior consent of the Attorney General to reapply for admission into the
United States under section 212(a)(9)(A)(iii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: aliens who have been previously ordered removed under
section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien's prior
arrival in the United States, and who again seek admission within five years of the date of such
removal, without obtaining prior consent to reapply for admission from the Attorney General before
reembarkation at a place outside the United States or seeking admission from foreign contiguous
territory, pursuant to section 212(a)(9)(A)(i) of the Act.

July 30, 1997
- p. 12 -

2010FOIA4519.000538

RI9A1
Inadmissible at Entry or Adjustment:
Alien Previously Removed Two or More Times as an Arriving Alien,
Not Aggravated Felons -- 20 Year Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were previously ordered removed [pursuant to section 235(b)(1)] [at the end of proceedings
under section 240] initiated upon your prior arrival in the United States, on
_____________________;

4.

You were previously ordered removed [pursuant to section 235(b)(1)] [at the end of proceedings
under section 240] initiated upon your prior arrival in the United States, on
_____________________;

5.

You were removed from or you departed the United States pursuant to that order on or about
____________;

6.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

6.

7.

You were admitted within twenty years of the date of your last removal;

8.

You did not receive the prior consent of the Attorney General to reapply for admission into the
United States under section 212(a)(9)(A)(iii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the
time of entry or of adjustment of status, you were within one or more of the classes of aliens
inadmissible by the law existing at such time, to wit: aliens who have more than once been
previously ordered removed under section 235(b)(1) or at the end of proceedings under section
240 initiated upon the alien's prior arrivals in the United States, and who again seek admission
within twenty years of the date of the last such removal, without obtaining prior consent to
reapply for admission from the Attorney General before reembarkation at a place outside the
United States or seeking admission from foreign contiguous territory, pursuant to section
212(a)(9)(A)(i) of the Act.

July 30, 1997
- p. 13 -

2010FOIA4519.000539

(Use Administrative Removal for non-LPRs, INA § 238(b))
RI9A1
Inadmissible at Entry or Adjustment:
Alien Previously Removed as an Arriving Alien Aggravated Felony Conviction -- Permanent Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were previously ordered removed [pursuant to section 235(b)(1)] [at the end of proceedings
under section 240] initiated upon your prior arrival in the United States, on
_____________________;

4.

You were removed from or you departed the United States pursuant to that order on or about
____________;

5.

You were convicted on ____________, of ________________, in the ________________ Court
[at] _______________;

6.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

6.

7.

You did not receive the prior consent of the Attorney General to reapply for admission into the
United States under section 212(a)(9)(A)(iii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has been previously ordered removed under
section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien's prior
arrival in the United States, who is an alien convicted of an aggravated felony, and who seeks
admission without obtaining prior consent to reapply for admission from the Attorney General
before reembarkation at a place outside the United States or seeking admission from foreign
contiguous territory, pursuant to section 212(a)(9)(A)(i) of the Act.

July 30, 1997
- p. 14 -

2010FOIA4519.000540

RI9A2
Inadmissible at Entry or Adjustment:
Alien Previously Removed Once, Not as an Arriving Alien,
Not Aggravated Felons -- 10 Year Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were ordered [removed] [excluded and deported] [deported] under section _____ on
_____________, or you departed the United States on ______________ while an order of
removal [exclusion and deportation] [deportation] was outstanding;
OR
You were ordered [removed] [excluded and deported] [deported] under section _____, and you
subsequently departed the United States on or about ___________;

3.

4.

You were removed from or you departed the United States pursuant to that order on or about
____________;

5.

You were admitted to the United States at ________ on ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

5.

6.

You were admitted or you adjusted status within ten years of the date of your prior departure or
removal;

7.

You did not receive the prior consent of the Attorney General to reapply for admission into the
United States under section 212(a)(9)(A)(iii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has been ordered removed under section 240 or
any other provision of law, or who departed the United States while an order of removal was
outstanding, and who seeks admission within ten years of the date of such departure or removal
without obtaining prior consent to reapply for admission from the Attorney General before
reembarkation at a place outside the United States or seeking admission from foreign contiguous
territory, pursuant to section 212(a)(9)(A)(ii) of the Act.

July 30, 1997
- p. 15 -

2010FOIA4519.000541

RI9A2
Inadmissible at Entry or Adjustment:
Alien Previously Removed Two or More Times, Not as an Arriving Alien,
Not Aggravated Felons -- 20 Year Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were ordered removed [excluded and deported] [deported] under section 240 [or section
____ ] on _________;

4.

You were removed from or you departed the United States pursuant to that order on or about
____________;

5.

You were ordered removed [excluded and deported] [deported] under section 240 [or section
____ ] on _________;

6.

You were removed from or you departed the United States pursuant to that order on or about
____________;

7.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

7.

8.

You were admitted or you adjusted status within twenty years of the date of your last departure
or removal;

9.

You did not receive the prior consent of the Attorney General to reapply for admission into the
United States under section 212(a)(9)(A)(iii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has more than once been ordered removed
under section 240 or any other provision of law, or who departed the United States while an order of
removal was outstanding, and who seeks admission within twenty years of the date of the last
departure or removal without obtaining prior consent to reapply for admission from the Attorney
General before reembarkation at a place outside the United States or seeking admission from foreign
contiguous territory, pursuant to section 212(a)(9)(A)(ii) of the Act.

July 30, 1997
- p. 16 -

2010FOIA4519.000542

(Use Administrative Removal for non-LPRs, INA § 238(b))
RI9A2
Inadmissible at Entry or Adjustment:
Alien Previously Removed, Not as an Arriving Alien,
Aggravated Felony -- Permanent Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were previously ordered removed [excluded and deported] [deported] under section _____
of the Act on _______;
OR
You departed the United States on or about ________ while an order of removal [exclusion and
deportation] [deportation] was outstanding;

3.

4.
4.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

5.

You were convicted on __________, of ___________, in the ___________ Court [at]
_________;

6.

You did not receive the prior consent of the Attorney General to reapply for admission into the
United States under section 212(a)(9)(A)(iii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has been ordered removed under section 240 or
any other provision of law, or who departed the United States while an order of removal was
outstanding, and who is an alien convicted of an aggravated felony, pursuant to section
212(a)(9)(A)(ii) of the Act.

July 30, 1997
- p. 17 -

2010FOIA4519.000543

RI9B11
Inadmissible at Entry or Adjustment:
Unlawfully Present for 180-364 Days [after 4/1/97] & Voluntarily Departed before the
Commencement of Removal Proceedings -- 3 Year Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were unlawfully present in the United States for a single period of more than 180 days but
less than one year, from _____________ to ____________;

4.

You voluntarily departed the United States prior to the commencement of removal proceedings
on ____________;

5.

You were admitted to the United States at ________ on or about ________ as a ________ ;

6.

You were admitted to the United States within three years of the date of such departure.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien, other than an alien lawfully admitted for permanent
residence, who was unlawfully present in the United States for a period of more than 180 days but
less than one year, voluntarily departed the United States prior to the commencement of proceedings
under section 235(b)(1) or section 240, and again seeks admission within three years of the date of
departure or removal, pursuant to section 212(a)(9)(B)(i)(I) of the Act.

July 30, 1997
- p. 18 -

2010FOIA4519.000544

RI9B12
Inadmissible at Entry or Adjustment:
Unlawfully Present In U.S. One Year or More [after 4/1/97] -10 Year Bar
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were unlawfully present in the United States for a single period of one year or more, from
___________ to _____________;

4.

You last departed or were removed from the United States on or about
_________________________;

5.

You were admitted to the United States at ________ on or about ________ as a ________ ;

6.

You were admitted within ten years of the date of such departure or removal.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien, other than an alien lawfully admitted for permanent
residence, who has been unlawfully present in the United States for a period of one year or more,
and who again seeks admission within ten years of the date of departure or removal from the United
States, pursuant to section 212(a)(9)(B)(i)(II) of the Act.

July 30, 1997
- p. 19 -

2010FOIA4519.000545

Note: Consider reinstatement of a final order, I.N.A. § 241(a)(5)
RI9C11
Inadmissible at Entry or Adjustment:
Unlawfully Present for One-Year Aggregate Period and Entered or Attempted to Enter
Without Being Admitted [after 4/1/97] -10 Year Bar and AG consent required after 10 years
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were unlawfully present in the United States for an aggregate period of more than one year,
from ___________ to __________, and from ___________ to ___________;

4.

You departed or were removed from the United States on ___________;

5.

You reentered the United States without being admitted on or about _________;

6.

You last departed or were removed from the United States on ___________;

7.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

7.

8.
8.

You were admitted within ten years of the date of such departure or removal.
OR
You were admitted more than ten years after the date of such departure or removal, and you did
not receive the prior consent of the Attorney General to reapply for admission into the United
States under section 212(a)(9)(C)(ii).
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has been unlawfully present in the United
States for an aggregate period of more than one year and who enters or attempts to reenter the
United States without being admitted and without obtaining prior consent to reapply for admission
from the Attorney General before reembarkation at a place outside the United States or seeking
admission from foreign contiguous territory, pursuant to section 212(a)(9)(C)(i)(I) of the Act.

July 30, 1997
- p. 20 -

2010FOIA4519.000546

Note: Consider reinstatement of a final order, I.N.A. § 241(a)(5)
RI9C12
Inadmissible at Entry or Adjustment:
Previously Ordered Removed and
Entered or Attempted to Enter Without Being Admitted -10 Year Bar and AG consent required after 10 years
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were ordered removed from the United States under section ___ of the Act on ________;

4.

You departed or were removed from the United States on or about ___________;

5.

You reentered the United States without being admitted on or about ___________;

6.

You later departed or were removed from the United States on or about ___________;

7.

You were later admitted to the United States at ________ on or about ________ as a ________;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act.

7.

CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has been ordered removed under section
235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the
United States without being admitted, pursuant to section 212(a)(9)(C)(i)(II) of the Act.

July 30, 1997
- p. 21 -

2010FOIA4519.000547

RI10A
Inadmissible at Entry or Adjustment:
Polygamy
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

At that time, you were coming to the United States to practice polygamy, to wit: ________.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who is coming to the United States to practice
polygamy, pursuant to section 212(a)(10)(A) of the Act.

July 30, 1997
- p. 22 -

2010FOIA4519.000548

RI10C
Inadmissible at Entry or Adjustment:
International Child Abduction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

Prior to or at the time of your admission or adjustment, you detained, retained, or withheld
custody of ________ , a United States citizen child, outside the United States from ________ ,
who was granted custody of such child on ________ by order of the ________ Court [at]
________.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: any alien who, after entry of an order by a court in the
United States granting custody to a person of a United States citizen child, detains or retains the
child, or withholds custody of the child, outside the United States from the person granted custody
by that order, pursuant to Section 212(a)(10)(C) of the Act.

July 30, 1997
- p. 23 -

2010FOIA4519.000549

RI10C
Inadmissible at Entry or Adjustment:
Unlawful Voting
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

Prior to your admission or adjustment of status, on ___________, you voted in violation of law,
to wit: ____________.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who has voted in violation of any Federal, State, or
local constitutional provision, statute, ordinance, or regulation, pursuant to section 212(a)(10)(D) of
the Act.

July 30, 1997
- p. 24 -

2010FOIA4519.000550

RI10E
Inadmissible at Entry or Adjustment:
Renounced Citizenship for Tax Purposes
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You are a former United States citizen who officially renounced your citizenship on ________;

5.

The Attorney General has determined that you renounced your citizenship for the purpose of
avoiding taxation by the United States.
CHARGE:
Section 237(a)(1)(A) of the Immigration and Nationality Act (Act), as amended, in that at the time
of entry or of adjustment of status, you were within one or more of the classes of aliens inadmissible
by the law existing at such time, to wit: an alien who is a former citizen of the United States who
officially renounced that citizenship and who is determined by the Attorney General to have
renounced United States citizenship for the purpose of avoiding taxation by the United States,
pursuant to section 212(a)(10)(E) of the Act.

July 30, 1997
- p. 25 -

2010FOIA4519.000551

R1B
Nonimmigrant Overstay
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
________ with authorization to remain in the United States for a temporary period not to exceed
________;

4.

You remained in the United States beyond ________ without authorization from the
Immigration and Naturalization Service.
CHARGE:
Section 237(a)(1)(B) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you have remained in the United
States for a time longer than permitted, in violation of this Act or any other law of the United States.

July 30, 1997
- p. 26 -

2010FOIA4519.000552

R1B
Nonimmigrant Overstay: Crewmember
(This charge applies only to aliens who were granted landing privileges before 4/1/97.
All other crewmember aliens may be removed without referral to the Immigration Judge
unless they request asylum. If a crewmember requests asylum, refer him or her to the
Immigration Judge with a Form I-863.)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a crewmember,
and were authorized to remain in the United States in that status until your ship left port, for a
temporary period not to exceed 29 days;

4.

You have remained in the United States thereafter without the authorization of the Immigration
and Naturalization Service.
CHARGE:
Section 237(a)(1)(B) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you have remained in the United
States for a time longer than permitted, in violation of this Act or any other law of the United States.

July 30, 1997
- p. 27 -

2010FOIA4519.000553

R1C1
Nonimmigrant Out of Status: Mexican Border Crosser

ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a border crosser or
nonimmigrant visitor at a Mexican border port of entry for a temporary period not to exceed 72
hours to visit in the area within 25 miles of the United States border with Mexico;

4.

On or about ________ , you were found at ________, a distance of more than 25 miles from the
United States border with Mexico;

5.

You have not received the permission of an immigration officer to proceed beyond that 25 mile
limit.
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Sections 101(a)(15) of the Act and 235.1(f)(iii) of Title 8, Code
of Federal Regulations, you failed to comply with the conditions of the nonimmigrant status under
which you were admitted.

July 30, 1997
- p. 28 -

2010FOIA4519.000554

R1C1
Nonimmigrant Failure to Maintain Status After Status Changed
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on ________ as a ________ ;

4.

Your status was changed to that of ________ on ________ ;

5.

You failed to maintain status or to comply with the conditions of your change of status in that
______________________ .
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that, after
admission as a nonimmigrant and subsequent change to another nonimmigrant status pursuant to
Section 248 of the Act, you failed to maintain or comply with the conditions of your change of
status.

July 30, 1997
- p. 29 -

2010FOIA4519.000555

R1C1
Nonimmigrant With Unauthorized Employment
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
________ with authorization to remain in the United States until ________ ;

4.

You were employed for wages or other compensation on ________ at ________, without
authorization of the Immigration and Naturalization Service.
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you failed to maintain or comply
with the conditions of the nonimmigrant status under which you were admitted.

July 30, 1997
- p. 30 -

2010FOIA4519.000556

R1C1
Failure to Maintain Status:
Crime of Violence Under 8 C.F.R. 214.1(g)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
________ ;

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ in violation of ________;

5.

A sentence of more than one year imprisonment may be imposed for that conviction.
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you failed to maintain or comply
with the conditions of the nonimmigrant status under which you were admitted, in that you have
been convicted of a crime of violence for which a sentence of more than one year imprisonment was
or could have been imposed, pursuant to 8 C.F.R. 214.1(g).

July 30, 1997
- p. 31 -

2010FOIA4519.000557

R1C1
Nonimmigrant Student Out of Status: Failure to Attend
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
student to attend ________ in ________ ;

4.

You did not attend ________ from ________ to ________ .
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you failed to maintain or comply
with the conditions of the nonimmigrant status under which you were admitted.

July 30, 1997
- p. 32 -

2010FOIA4519.000558

R1C1
Nonimmigrant Student Out of Status:
Failure to Carry Full Course of Study
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
student to attend ________ in ________ , ________ ;

4.

You did not carry a full course of study from ________ to ________ .
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you failed to maintain or comply
with the conditions of the nonimmigrant status under which you were admitted.

July 30, 1997
- p. 33 -

2010FOIA4519.000559

R1C1
Nonimmigrant Student Out of Status:
Unauthorized Enrollment at a Different School
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
student to attend ________ in ________ , ________ ;

4.

On or after ________ , you enrolled at ________ without proper authorization from the United
States Immigration and Naturalization Service.
CHARGE:
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission as a nonimmigrant under Section 101(a)(15) of the Act, you failed to maintain or comply
with the conditions of the nonimmigrant status under which you were admitted.

July 30, 1997
- p. 34 -

2010FOIA4519.000560

R1C2
Violated Condition of Entry:
Section 212(g) Waiver of Health Grounds

ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;

4.

As a term, condition, or control of admission, you were required to ________;

5.

The Secretary of Health and Human Services has certified that you have failed to comply with
the above-stated terms, conditions, and controls of your admission, in that
______________________.
CHARGE:
Section 237(a)(1)(C)(ii) of the Immigration and Nationality Act (Act), as amended, in that the
Secretary of Health and Human Services has certified that you failed to comply with terms,
conditions, and controls that were imposed under Section 212(g) of the Act.

July 30, 1997
- p. 35 -

2010FOIA4519.000561

R1D1
Termination of Conditional Permanent Residence: Adjustment
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a nonimmigrant
________;

4.

On ________ your status was adjusted to that of a permanent resident on a conditional basis;

5.

Your status was terminated on ________ because ________ .
CHARGE:
Section 237(a)(1)(D)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission or adjustment as an alien lawfully admitted for permanent residence on a conditional basis
under Section 216 or 216A of the Act your status was terminated under such respective section.

July 30, 1997
- p. 36 -

2010FOIA4519.000562

R1D1
Termination of Conditional Permanent Residence: Entry
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

On ________ , you were lawfully admitted to the United States for permanent residence on a
conditional basis;
OR
Your status was adjusted to that of a conditional permanent resident on _________ under section
______ [216] [216A] of the Act;

3.

4.

Your status was terminated on ________ because ________ .

CHARGE:
Section 237(a)(1)(D)(i) of the Immigration and Nationality Act (Act), as amended, in that after
admission or adjustment as an alien lawfully admitted for permanent residence on a conditional basis
under Section 216 or 216A of the Act your status was terminated under such respective section.

July 30, 1997
- p. 37 -

2010FOIA4519.000563

R1E
Alien Smuggling
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you knowingly encouraged, induced, assisted, abetted or aided
________, an alien, to enter or to try to enter the United States at or near ________ , in violation
of law.
CHARGE:
Section 237(a)(1)(E)(i) of the Immigration and Nationality Act, as amended, in that prior to the date
of your entry, at the time of any entry, or within five years of the date of any entry, you knowingly
encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United
States in violation of law.

July 30, 1997
- p. 38 -

2010FOIA4519.000564

R1G1
Marriage Fraud: Marriage Ended Within Two Years
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as an immigrant;

4.

You obtained your immigrant status based upon your marriage on ________ to ________ ;

5.

Your marriage to ________ was judicially annulled or terminated on ________, in the ________
Court [at] ________ .
CHARGE:
Section 237(a)(1)(G)(i) of the Immigration and Nationality Act, as amended, in that you obtained
admission into the United States with an immigrant visa or other documentation procured on the
basis of a marriage entered into less than two years prior to such admission, and which was
judicially annulled or terminated within two years subsequent to any admission; you are therefore
considered to have procured your visa or other documentation by fraud.

July 30, 1997
- p. 39 -

2010FOIA4519.000565

R1G2
Marriage Fraud: Refusal or Failure to Fulfill Marital Agreement
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as an immigrant on
the basis of your marriage to ________ ;

4.

You have failed or refused to fulfill your marital agreement with ________ , which was entered
into for the purpose of procuring your admission as an immigrant.
CHARGE:
Section 237(a)(1)(G)(ii) of the Immigration and Nationality Act, as amended, in that you are in the
United States in violation of the Act, it appearing to the satisfaction of the Attorney General that you
are an alien who failed or refused to fulfill your marital agreement which in the opinion of the
Attorney General was made for the purpose of procuring your admission as an immigrant; you are
therefore considered to have procured your visa or other documentation by fraud.

July 30, 1997
- p. 40 -

2010FOIA4519.000566

R2A1
Conviction of One Crime Involving Moral Turpitude
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
________, committed on or about ________ [in violation of ________ ];

5.

For that offense, a sentence of one year or longer may be imposed.
CHARGE:
Section 237(a)(2)(A)(i) of the Immigration and Nationality Act, as amended, in that you have been
convicted of a crime involving moral turpitude committed within five years after admission for
which a sentence of one year or longer may be imposed.

July 30, 1997
- p. 41 -

2010FOIA4519.000567

R2A2
Conviction of Two Crimes Involving Moral Turpitude
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ , in violation of ________ ;

5.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ , in violation of ________ ;

6.

These crimes did not arise out of a single scheme of criminal misconduct.
CHARGE:
Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as amended, in that, at any time
after admission, you have been convicted of two crimes involving moral turpitude not arising out of
a single scheme of criminal misconduct.

July 30, 1997
- p. 42 -

2010FOIA4519.000568

(Use Administrative Removal for non-LPRs, INA § 238(b))
R2A3
Aggravated Felony
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ [in violation of ________ ].
CHARGE:
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at any
time after admission, you have been convicted of an aggravated felony as defined in section
101(a)(43)( ____ ) of the Act, a law relating to _________________.

July 30, 1997
- p. 43 -

2010FOIA4519.000569

(Use Administrative Removal for non-LPRs, INA § 238(b))
R2A3
Aggravated Felony: 101(a)(43)(B)
Controlled Substance Trafficking
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
____________, to wit:________, in violation of ______________.
CHARGE:
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at
any time after admission, you have been convicted of an aggravated felony as defined in Section
101(a)(43)(B) of the Act, an offense relating to the illicit trafficking in a controlled substance, as
described in section 102 of the Controlled Substances Act, including a drug trafficking crime, as
defined in section 924(c) of Title 18, United States Code.

July 30, 1997
- p. 44 -

2010FOIA4519.000570

(Use Administrative Removal for non-LPRs, INA § 238(b))
R2A3
Aggravated Felony: 101(a)(43)(B)
Two Possessions of a Controlled Substance
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
Criminal Possession of a Controlled Substance, to wit:________, in violation of
______________.

5.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
Criminal Possession of a Controlled Substance, to wit:________, in violation of
______________.
CHARGE:
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at any
time after admission, you have been convicted of an aggravated felony as defined in Section
101(a)(43)(B) of the Act, an offense relating to the illicit trafficking in a controlled substance, as
described in section 102 of the Controlled Substances Act, including a drug trafficking crime, as
defined in section 924(c) of Title 18, United States Code.

July 30, 1997
- p. 45 -

2010FOIA4519.000571

(Use Administrative Removal for non-LPRs, INA § 238(b))
R2A3
Aggravated Felony: 101(a)(43)(F)
Crime of Violence
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________, convicted in the ________ Court [at] ________ for the offense of
___________, in violation of ______________

5.

You were sentenced to a term of imprisonment of ________.
CHARGE:
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at
any time after admission, you have been convicted of an aggravated felony as defined in Section
101(a)(43)(F) of the Act, a crime of violence (as defined in section 16 of Title 18, United States
Code, but not including a purely political offense) for which the term of imprisonment ordered is
at least one year.

July 30, 1997
- p. 46 -

2010FOIA4519.000572

(Use Administrative Removal for non-LPRs, INA § 238(b))
R2A3
Aggravated Felony: 101(a)(43)(S)
Obstruction of Justice, Perjury, Bribery of a Witness
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ [in violation of ________ ];

5.

You were sentenced to a term of imprisonment of ________.
CHARGE:
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at
any time after admission, you have been convicted of an aggravated felony as defined in section
101(a)(43)(S) of the Act, an offense relating to obstruction of justice, perjury or subornation of
perjury, or bribery of a witness, for which the term of imprisonment is at least one year.

July 30, 1997
- p. 47 -

2010FOIA4519.000573

R2A4
High Speed Flight Conviction, 18 U.S.C. § 758
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were convicted on ________ , in the United States District Court for the District of
________ for a violation of Title 18, United States Code, section 758, relating to high speed
flight from an immigration checkpoint.
CHARGE:
Section 237(a)(2)(A)(iv) of the Immigration and Naturalization Act, as amended, in that you are an
alien who has been convicted of a violation of Section 758 of Title 18 of the United States Code
relating to high speed flight from an immigration checkpoint.

July 30, 1997
- p. 48 -

2010FOIA4519.000574

R2B1
Drug Conviction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ , to wit: ________, in violation of ________ .
CHARGE:
Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, as amended, in that, at any time after
admission, you have been convicted of a violation of (or a conspiracy or attempt to violate) any law
or regulation of a State, the United States, or a foreign country relating to a controlled substance (as
defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense
involving possession for one's own use of 30 grams or less of marijuana.

July 30, 1997
- p. 49 -

2010FOIA4519.000575

R2B2
Current Drug Abuser or Addict
(Note: a PHS certificate will probably be required to prove this charge)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You are a drug abuser or a drug addict, to wit: __________.

CHARGE:
Section 237(a)(2)(B)(ii) of the Immigration and Nationality Act, as amended, in that you are, or at
any time after admission have been, a drug abuser or drug addict.

July 30, 1997
- p. 50 -

2010FOIA4519.000576

R2B2
Former Drug Abuser or Addict
(Note: a PHS certificate will probably be required to prove this charge)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on or about ________ , a drug abuser or a drug addict, to wit: ________ .
CHARGE:
Section 237(a)(2)(B)(ii) of the Immigration and Nationality Act, as amended, in that you are, or at
any time after admission have been, a drug abuser or drug addict.

July 30, 1997
- p. 51 -

2010FOIA4519.000577

R2C
Firearms Conviction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the ________ Court [at] ________ for the offense of
________ , to wit: ________, in violation of ________ .
CHARGE:
Section 237(a)(2)(C) of the Immigration and Nationality Act, as amended, in that, at any time after
admission, you have been convicted under any law of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell,
offer for sale, exchange, use, own, possess, or carry, in violation of any law, any weapon, part, or
accessory which is a firearm or destructive device, as defined in Section 921(a) of Title 18, United
States Code.

July 30, 1997
- p. 52 -

2010FOIA4519.000578

R2D1
Miscellaneous Crimes: Espionage, Sabotage, Treason and Sedition
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the United States District Court for the District of
________ for the offense of ________ , in violation of ________ ;

5.

The term of imprisonment that may be imposed for that offense is five years or more.
CHARGE:
Section 237(a)(2)(D)(i) of the Immigration and Nationality Act, as amended, in that at any time, you
have been convicted of any offense or conspiracy or attempt to violate any offense under Chapter 37
(relating to espionage), Chapter 105 (relating to sabotage), or Chapter 115 (relating to treason and
sedition) of Title 18, United States Code, for which imprisonment of five or more years may be
imposed.

July 30, 1997
- p. 53 -

2010FOIA4519.000579

R2D3
Miscellaneous Crimes:
Violation of Military Selective Service Act
or
Trading with the Enemy Act
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the United States District Court for the District of
________ for the offense of ________ , in violation of ________ .
CHARGE:
Section 237(a)(2)(D)(iii) of the Immigration and Nationality Act, as amended, in that at any time,
you have been convicted of any offense or conspiracy or attempt to commit any offense under the
Military Selective Service Act (50 U.S.C. App.451 et seq.) or the Trading With the Enemy Act (50
U.S.C. App. 1 et seq.).

July 30, 1997
- p. 54 -

2010FOIA4519.000580

R2D4
Miscellaneous Crimes: INA § 278,
Importing an Alien for Prostitution or Any Other Immoral Purpose
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the United States District Court for the District of
________ for the offense of ________ , in violation of section 278 of the Act, 8 U.S.C. 1328.
CHARGE:
Section 237(a)(2)(D)(iv) of the Immigration and Nationality Act (Act), as amended, in that, at any
time, you have been convicted of a violation of, or a conspiracy or attempt to violate Section 278 of
the Act.

July 30, 1997
- p. 55 -

2010FOIA4519.000581

R2E1
Domestic Violence
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ [only convictions 9/30/96 or later], convicted in the ________ Court [at]
________ for the offense of ________ , in violation of ________;

5.

That offense was committed against _________, __________ [your spouse] [your former
spouse] [a person with whom you share a child in common] [a person with whom you are
cohabiting as a spouse] [a person with whom you have cohabited as a spouse] [a person who is
similarly situated to your spouse under the domestic or family violence laws of _________, the
jurisdiction where the offense occurred] [a person who is protected from your acts by the
domestic or family violence laws of the United States or any State, Indian tribal government, or
unit of local government].
CHARGE:
Section 237(a)(2)(E)(i) of the Immigration and Nationality Act, as amended, in that you are an
alien who at any time after entry has been convicted of a crime of domestic violence, a crime of
stalking, or a crime of child abuse, child neglect, or child abandonment.

July 30, 1997
- p. 56 -

2010FOIA4519.000582

R2E1
Stalking and Child Abuse
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ [only convictions 9/30/96 or later], convicted in the ________ Court [at]
________ for the offense of ________ , in violation of ________ .
CHARGE:
Section 237(a)(2)(E)(i) of the Immigration and Nationality Act, as amended, in that you are an alien
who at any time after entry has been convicted of a crime of domestic violence, a crime of stalking,
or a crime of child abuse, child neglect, or child abandonment.

July 30, 1997
- p. 57 -

2010FOIA4519.000583

R2E2
Violation of a Protection Order
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On ________ , you were enjoined under a protection order issued by the ________ Court [at]
________.

5.

On ________, that Court determined that you had engaged in conduct that violated a portion of that
order that involved protection against credible threats of violence, repeated harassment, or bodily
injury to the person or persons for whom the protection order was issued.
CHARGE:
Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, as amended, in that you are an alien
who at any time after entry has been enjoined under a protection order and has been determined to
have engaged in conduct in violation of that order that involves protection against credible threats of
violence, repeated harassment, or bodily injury to the person or persons for whom the protection
order was issued.

July 30, 1997
- p. 58 -

2010FOIA4519.000584

R3A
Failure to File Change of Address
(HQ approval required before lodging this charge)

ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On ________ you changed your address from ________ to your new address of ________ ;

5.

You failed to notify the Attorney General in writing of your new address within ten days after
obtaining the new address.

CHARGE:
Section 237(a)(3)(A) of the Immigration and Nationality Act (Act), as amended, in that you failed to
comply with the provisions of Section 265 of the Act by failing to notify the Attorney General in
writing of your change of address within ten days from the date of such change.

July 30, 1997
- p. 59 -

2010FOIA4519.000585

R3B1
Knowingly False Statements or Fraudulent Procurement
in Application for Registration:
Convicted Under INA section 266(c)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were, on ________ , convicted in the United States District Court for the District of ________
for a violation of Title 8, United States Code, section 1306(c).

CHARGE:
Section 237(a)(3)(B)(i) of the Immigration and Nationality Act (Act), as amended, in that you are an
alien who has at any time been convicted of a violation of Section 266(c) of the Act, to wit: filing an
application for registration containing statements known by you to be false, or procuring or
attempting to procure registration of yourself or another person through fraud.

July 30, 1997
- p. 60 -

2010FOIA4519.000586

R3B3
Fraud and Misuse of Visas, Permits and Other Documents:
Convicted Under 18 U.S.C. § 1546
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

You were convicted on ________ , in the United States District Court for the District of ________
for a violation of Title 18, United States Code, section 1546.
CHARGE:
Section 237(a)(3)(B)(iii) of the Immigration and Nationality Act, as amended, in that you are an
alien who has at any time been convicted of a violation of, or an attempt or a conspiracy to violate,
Section 1546 of Title 18 of the United States Code relating to fraud and misuse of visas, permits and
other entry documents.

July 30, 1997
- p. 61 -

2010FOIA4519.000587

R3C
Forged, Counterfeited, Altered, or Falsely Made Document,
or Wrongful Use of a Lawfully Issued Document:
274C Final Order
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , a final order for violating Section 274C of the Act was issued against you.
CHARGE:
Section 237(a)(3)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that you are an
alien who is the subject of a final order for violation of Section 274C of the Act.

July 30, 1997
- p. 62 -

2010FOIA4519.000588

R3D
False Claim of United States Citizenship
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________, you represented yourself to be a citizen of the United States for the purpose
of ________ .

CHARGE:
Section 237(a)(3)(D) of the Immigration and Nationality Act (Act), as amended, in that you are an
alien who has falsely represented yourself to be a citizen of the United States for any purpose or
benefit under this Act (including Section 274A) or a Federal or State law.

July 30, 1997
- p. 63 -

2010FOIA4519.000589

R4A1
Security and Related Grounds:
Espionage and Sabotage
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ you ________ .
CHARGE:
Section 237(a)(4)(A)(i) of the Immigration and Nationality Act, as amended, in that you have
engaged, are engaged, or at any time after admission were engaged in any activity to violate any law
of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the
export from the United States of goods, technology, or sensitive information.

July 30, 1997
- p. 64 -

2010FOIA4519.000590

R4A2
Security and Related Grounds:
Endangering Public Safety or National Security
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you ________ .

CHARGE:
Section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, as amended in that you have
engaged, are engaged, or at any time after admission were engaged in a criminal activity which
endangers public safety or national security.

July 30, 1997
- p. 65 -

2010FOIA4519.000591

R4A3
Security and Related Grounds: Overthrow of Government
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you ________ .

CHARGE:
Section 237(a)(4)(A)(iii) of the Immigration and Nationality Act, as amended, in that you have
engaged, are engaged, or at any time after admission were engaged in any activity, a purpose of
which is the opposition to, or the control or overthrow of, the Government of the United States by
force, violence, or other unlawful means.

July 30, 1997
- p. 66 -

2010FOIA4519.000592

R4B
Security and Related Grounds: Terrorist Activities
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you ________ .

CHARGE:
Section 237(a)(4)(B) of the Immigration and Nationality Act (Act), as amended, in that you have
engaged, are engaged, or at any time after admission were engaged in any terrorist activity as
defined in Section 212(a)(3)(B)(iii) of the Act.

July 30, 1997
- p. 67 -

2010FOIA4519.000593

R4C1
Foreign Policy
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

The Secretary of State has determined that your presence or activities in the United States would
have serious adverse foreign policy consequences for the United States.
CHARGE:
Section 237(a)(4)(C)(i) of the Immigration and Nationality Act, as amended, in that the Secretary of
State has reasonable ground to believe that your presence or activities in the United States would
have potentially serious adverse foreign policy consequences for the United States.

July 30, 1997
- p. 68 -

2010FOIA4519.000594

R4D
Security and Related Grounds: Genocide
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you engaged in genocide by ________ .
CHARGE:
Section 237(a)(4)(D) of the Immigration and Nationality Act (Act), as amended, in that you engaged
in conduct described in Section 212(a)(3)(E)(ii) of the Act that is defined as genocide for purposes
of the International Convention on the Prevention and Punishment of Genocide.

July 30, 1997
- p. 69 -

2010FOIA4519.000595

R4D
Security and Related Grounds: Nazi Persecution
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________ , you participated in Nazi persecution by________.

CHARGE:
Section 237(a)(4)(D) of the Immigration and Nationality Act (Act), as amended, in that you, during
the period beginning on March 23, 1933, and ending on May 8, 1945, assisted in Nazi persecution
described in Section 212(a)(3)(E)(i) of the Act.

July 30, 1997
- p. 70 -

2010FOIA4519.000596

R5
Public Charge
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On ________, you received public services, benefits, or assistance by ________;

5.

On ________, a demand for repayment was made on you by ________ ;

6.

You have not made such repayment.
CHARGE:
Section 237(a)(5) of the Immigration and Nationality Act, as amended, in that, within five years of
the date of your entry you have become a public charge from causes not affirmatively shown to have
arisen since your entry.

July 30, 1997
- p. 71 -

2010FOIA4519.000597

R6
Unlawful Voter
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of ________ and a citizen of ________ ;

3.

You were admitted to the United States at ________ on or about ________ as a ________ ;
OR
Your status was adjusted to that of a lawful permanent resident on _________ under section
________ of the Act;

3.

4.

On or about ________, you voted at ________, ________ in violation of ________.
CHARGE:
Section 237(a)(6) of the Immigration and Nationality Act, as amended, in that you are an alien who
has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or
regulation.

July 30, 1997
- p. 72 -

2010FOIA4519.000598

NOTICE TO APPEAR
Guidelines For Drafting Factual Allegations
and Section 212(a) Charges
Involving

"Arriving Aliens"
&

"Aliens Present
Without Being Admitted"

POST - IIRIRA 96

July 30, 1997

2010FOIA4519.000599

I1A1
212(a)(1)(A)(i) - Communicable Disease of Public Health Significance
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You have been determined, in accordance with regulations prescribed by the Secretary of
Health and Human Services, to have a communicable disease of public health
significance, to wit: _________________.
CHARGE:
Section 212(a)(1)(A)(i) of the Immigration and Nationality Act, as amended, as an alien who
is determined (in accordance with regulations prescribed by the Secretary of Health and
Human Services) to have a communicable disease of public health significance, which shall
include infection with the etiologic agent for acquired immune deficiency syndrome.

July 30, 1997

- p. 2 -

2010FOIA4519.000600

I1A2
212(a)(1)(A)(ii) - No Documentation to Prove Vaccination
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are seeking admission as an immigrant, or you are seeking adjustment of status to
the status of an alien lawfully admitted for permanent residence;

4.

You have failed to present documentation of having received vaccination against
vaccine-preventable diseases, to wit: __________.
CHARGE:
Section 212(a)(1)(A)(ii) of the Immigration and Nationality Act, as amended, as an alien
who seeks admission as an immigrant, or who seeks adjustment of status to the status of an
alien lawfully admitted for permanent residence, who has failed to present documentation of
having received vaccination against vaccine-preventable diseases recommended by the
Advisory Committee for Immunization Practices.

July 30, 1997

- p. 3 -

2010FOIA4519.000601

I1A31
212(a)(1)(A)(iii)(I) - Physical or Mental Disorder
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You have been determined, in accordance with regulations prescribed by the Secretary of
Health and Human Services, to have a physical or mental disorder, to wit: ___________;

4.

You have been determined, in accordance with regulations prescribed by the Secretary of
Health and Human Services, to have behavior associated with that disorder may pose, or
has posed, a threat to the property, safety, or welfare of yourself or others, to wit:
__________________.
CHARGE:
Section 212(a)(1)(A)(iii)(I) of the Immigration and Nationality Act, as amended, as an alien
who is determined (in accordance with regulations prescribed by the Secretary of Health and
Human Services in consultation with the Attorney General) to have a physical or mental
disorder and behavior associated with that disorder that may pose, or has posed, a threat to
the property, safety, or welfare of yourself or others.

July 30, 1997

- p. 4 -

2010FOIA4519.000602

I1A32
212(a)(1)(A)(iii)(II) - Recurring Physical or Mental Disorder
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You have been determined, in accordance with regulations prescribed by the Secretary of
Health and Human Services, to have had a physical or mental disorder, to
wit:__________________;

4.

You have been determined, in accordance with regulations prescribed by the Secretary of
Health and Human Services, to have a history of behavior associated with that disorder
which has posed a threat to the property, safety, or welfare of yourself or others, to wit:
_____________________;

4.

That behavior is likely to recur or to lead to other harmful behavior.
CHARGE:
Section 212(a)(1)(A)(iii)(II) of the Immigration and Nationality Act, as amended, as an alien
who is determined (in accordance with regulations prescribed by the Secretary of Health and
Human Services in consultation with the Attorney General) to have had a physical or mental
disorder and a history of behavior associated with the disorder, which behavior has posed a
threat to the property, safety, or welfare of yourself or others and which behavior is likely to
recur or to lead to other harmful behavior.

July 30, 1997

- p. 5 -

2010FOIA4519.000603

I1A4
212(a)(1)(A)(iv) - Drug Abuser or Addict
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are determined, in accordance with regulations prescribed by the Secretary of Health
and Human Services, to be a drug abuser or addict, to wit:___________________.
CHARGE:
Section 212(a)(1)(A)(iv) of the Immigration and Nationality Act, as amended, as an alien
who is determined (in accordance with regulations prescribed by the Secretary of Health and
Human Services) to be a drug abuser or addict.

July 30, 1997

- p. 6 -

2010FOIA4519.000604

I2A11
212(a)(2)(A)(i)(I) - Conviction or Commission of a Crime Involving Moral
Turpitude
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were, on ________, convicted in the _____________ Court [at] _________ for the
offense of ________________, in violation of _________________________.
OR

3.

You admit having committed the following acts: __________________, which constitute
the essential elements of _______________________________. Before making this
admission, you were given a definition of the crime and the definition was explained to
you in understandable terms.
CHARGE:
Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, as amended, in that you
are an alien who has been convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of a crime involving moral turpitude
(other than a purely political offense) or an attempt or conspiracy to commit such a crime.

July 30, 1997

- p. 7 -

2010FOIA4519.000605

I2A12
212(a)(2)(A)(i)(II) - Controlled Substance Conviction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were, on __________, convicted in the ___________ Court [at] _____________ for
the offense of ________________, to wit:_________, in violation of ______________.
OR

3.

You admitted committing the following acts: ________________, which constitute the
essential elements of a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country relating to a controlled
substance, to wit : ________________.
CHARGE:
Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, as amended, in that you
are an alien who has been convicted of, or who admits having committed, or admits
committing acts which constitute the essential elements of, (as defined in Section 102 of the
Controlled Substances Act, 21 U.S.C. 802).

July 30, 1997

- p. 8 -

2010FOIA4519.000606

I2B
212(a)(2)(B) - Multiple Convictions With Aggregate Sentence of Five Years
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were, on ______, convicted in the __________ Court [at] _____________ for the
offense of __________, in violation of ____________________. For that offense, a
sentence to confinement was imposed for a period of ___________ [a minimum of _____
and a maximum of _______];

4.

You were, on ______, convicted in the __________ Court [at] _____________ for the
offense of __________, in violation of ____________________. For that offense, a
sentence to confinement was imposed for a period of ___________ [a minimum of _____
and a maximum of _______].

[5.

The aggregate sentence imposed was _________.]
CHARGE:
Section 212(a)(2)(B) of the Immigration and Nationality Act, as amended, in that you are an
alien who has been convicted of two or more offenses (other than purely political offenses)
for which the aggregate sentences to confinement actually imposed were five years or more.

July 30, 1997

- p. 9 -

2010FOIA4519.000607

I2C
212(a)(2)(C) - Suspected Controlled Substance Trafficker
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are or have been an illicit trafficker of a controlled substance, or were or have been a
knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking of a
controlled substance, to wit: ______________.
CHARGE:
Section 212(a)(2)(C) of the Immigration and Nationality Act, as amended, in that a consular
or immigration officer knows or has reason to believe you are an alien who is or has been an
illicit trafficker in any controlled substance or who is or has been a knowing assister, abettor,
conspirator, or colluder with others in the illicit trafficking in any such controlled substance.

July 30, 1997

- p. 10 -

2010FOIA4519.000608

I2C
212(a)(2)(C) - Controlled Substance Trafficker with a Conviction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were, on __________, convicted in the ___________ Court [at] _____________ for
the offense of ________________, to wit:________________, in violation
of___________________.
CHARGE:
Section 212(a)(2)(C) of the Immigration and Nationality Act, as amended, in that a consular
or immigration officer knows or has reason to believe you are an alien who is or has been an
illicit trafficker in any controlled substance or who is or has been a knowing assister, abettor,
conspirator, or colluder with others in the illicit trafficking in any such controlled substance.

July 30, 1997

- p. 11 -

2010FOIA4519.000609

I2D1
212(a)(2)(D)(i) - Prostitution Within 10 Years of Application for Admission
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are coming to the United States to engage in prostitution or you engaged in
prostitution within ten years of the date of your application for a visa, admission, or
adjustment of status, to wit: _____________.
CHARGE:
Section 212(a)(2)(D)(i) of the Immigration and Nationality Act, as amended, in that you are
an alien who is coming to the United States to engage in prostitution, or has engaged in
prostitution within 10 years of the date of application for a visa, admission, or adjustment of
status.

July 30, 1997

- p. 12 -

2010FOIA4519.000610

I2D2
212(a)(2)(D)(ii) - Procured or Imported Prostitutes
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________.

3.

You have procured prostitutes or imported persons for the purpose of prostitution, or
have attempted to procure prostitutes or import persons for the purpose of prostitution, to
wit: _______________.
CHARGE:
Section 212(a)(2)(D)(ii) of the Immigration and Nationality Act, as amended, in that you are
an alien who has directly or indirectly procured or attempted to procure or (within ten years
of your application for a visa, admission, or adjustment of status) has procured or attempted
to procure or to import, prostitutes or persons for the purpose of prostitution, or received the
proceeds of prostitution.

July 30, 1997

- p. 13 -

2010FOIA4519.000611

I2D2
212(a)(2)(D)(ii) - Received Proceeds of Prostitution
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about __________ at ___________ you received the proceeds of prostitution, to
wit: ___________________________.
CHARGE:
Section 212(a)(2)(D)(ii) of the Immigration and Nationality Act, as amended, as an alien
who within ten years of your application for a visa, admission, or adjustment of status,
received, in whole or in part, the proceeds of prostitution.

July 30, 1997

- p. 14 -

2010FOIA4519.000612

I2D3
212(a)(2)(D)(iii) - Commercialized Vice
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are coming to the United States to engage in unlawful commercialized vice, to wit:
_____________________________.
CHARGE:
Section 212(a)(2)(D)(iii) of the Immigration and Nationality Act, as amended, as an alien
who is coming to the United States to engage in any unlawful commercialized vice.

July 30, 1997

- p. 15 -

2010FOIA4519.000613

I2E
212(a)(2)(E) - Exercise of Criminal Immunity
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On ________, in _________, you committed acts which constitute ____________, a
violation of ________________;

4.

On _______, you exercised immunity from criminal jurisdiction with respect to that
offense;

5.

As a consequence of the offense and exercise of immunity, you departed the United
States;

6.

You have not submitted fully to the jurisdiction of the ________ Court [at]
_______________ , with respect to that offense.
CHARGE:
Section 212(a)(2)(E) of the Immigration and Nationality Act (Act), as amended, as an alien
who has committed in the United States a serious criminal offense (as defined in section
101(h) of the Act), who exercised immunity from criminal jurisdiction with respect to that
offense and departed the United States as a result, and who has not subsequently submitted
fully to the jurisdiction of the court in the United States having jurisdiction with respect to
that offense.

July 30, 1997

- p. 16 -

2010FOIA4519.000614

I3A11
212(a)(3)(A)(i)(I) - Espionage or Sabotage
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are seeking to enter the United States to engage in an activity to violate a law of the
United States relating to espionage or sabotage, to wit: _______________________.
CHARGE:
Section 212(a)(3)(A)(i) of the Immigration and Nationality Act, as amended, as an alien who
a Consular Officer or the Attorney General knows or has reasonable ground to believe is
seeking to enter the United States to engage solely, principally or incidentally in any activity
to violate any law of the United States relating to espionage or sabotage or to violate or
evade any law prohibiting the export from the United States of goods, technology, or
sensitive information.

July 30, 1997

- p. 17 -

2010FOIA4519.000615

I3A12
212(a)(3)(A)(i)(II) - Espionage or Sabotage: Export of Goods, Technology, or
Sensitive Information
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are seeking to enter the United States to engage in an activity to violate or evade a
law prohibiting the export from the United States of goods, technology, or sensitive
information, to wit: _________________________________________________.
CHARGE:
Section 212(a)(3)(A)(i) of the Immigration and Nationality Act, as amended, as an alien who
a Consular Officer or the Attorney General knows or has reasonable ground to believe is
seeking to enter the United States to engage solely, principally or incidentally in any activity
to violate any law of the United States relating to espionage or sabotage or to violate or
evade any law prohibiting the export from the United States of goods, technology, or
sensitive information.

July 30, 1997

- p. 18 -

2010FOIA4519.000616

I3A2
212(a)(3)(A)(ii) - Unlawful Activity (Security & Related Grounds)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are seeking to enter the United States to engage in an unlawful activity, to wit:
____________________________.
CHARGE:
Section 212(a)(3)(A)(ii) of the Immigration and Nationality Act, as amended, as an alien
whom a Consular Officer or the Attorney General knows or has reasonable ground to believe
is seeking to enter the United States to engage solely, principally or incidentally in any
unlawful activity.

July 30, 1997

- p. 19 -

2010FOIA4519.000617

I3A3
212(a)(3)(A)(iii) - Control or Overthrow of the U.S. Government
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are seeking to enter the United States to engage in an activity a purpose of which is
the opposition to, or the control or overthrow of, the government of the United States by
force, violence, or other unlawful means, to wit: _____________________.
CHARGE:
Section 212(a)(3)(A)(iii) of the Immigration and Nationality Act, as amended, as an alien
whom a Consular Officer or the Attorney General knows or has reasonable ground to believe
is seeking to enter the United States to engage solely, principally or incidentally in any
activity a purpose of which is the opposition to, or the control or overthrow of, the
government of the United States by force, violence, or other unlawful means.

July 30, 1997

- p. 20 -

2010FOIA4519.000618

I3B11
212(a)(3)(B)(i)(I) - Engaged in Terrorist Activity
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You have engaged in a terrorist activity, to wit: _______________.
CHARGE:
Section 212(a)(3)(B)(i)(I) of the Immigration and Nationality Act, as amended, as an alien
who has engaged in a terrorist activity.

July 30, 1997

- p. 21 -

2010FOIA4519.000619

I3B12
212(a)(3)(B)(i)(II) - Likely to Engage in Terrorist Activity
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You engaged or are likely to engage after entry in a terrorist activity, to wit:
____________________________________.
CHARGE:
Section 212(a)(3)(B)(i)(II) of the Immigration and Nationality Act, as amended, as an alien
who a Consular Officer or the Attorney General knows, or has reasonable ground to believe,
is engaged or is likely to engage after entry in any terrorist activity.

July 30, 1997

- p. 22 -

2010FOIA4519.000620

I3B13
212(a)(3)(B)(i)(III) - Incited Terrorist Activity
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You have, under circumstances indicating an intention to cause death or serious bodily
harm, incited terrorist activity, to wit: _____________________________________.
CHARGE:
Section 212(a)(3)(B)(i)(III) of the Immigration and Nationality Act, as amended, as an alien
who has, under circumstances indicating an intention to cause death or serious bodily harm,
incited terrorist activity.

July 30, 1997

- p. 23 -

2010FOIA4519.000621

I3B14
212(a)(3)(B)(i)(IV) - Representative of Foreign Terrorist Organization
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are a representative of ____________________ , a foreign terrorist organization, as
designated by the Secretary of State.
CHARGE:
Section 212(a)(3)(B)(i)(IV) of the Immigration and Nationality Act (Act), as amended, as an
alien who is a representative (as defined in section 212(a)(3)(B)(iv) of the Act) of a foreign
terrorist organization, as designated by the Secretary of State under section 219 of the Act.

July 30, 1997

- p. 24 -

2010FOIA4519.000622

I3B15
212(a)(3)(B)(i)(V) - Member of a Foreign Terrorist Organization
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are a member of _____________________ , a foreign terrorist organization, as
designated by the Secretary of State;

4.

You know or should know that the organization is a terrorist organization.
CHARGE:
Section 212(a)(3)(B)(i)(V) of the Immigration and Nationality Act, as amended, as an alien
who is a member of a foreign terrorist organization as designated by the Secretary of State
under section 219 of the Act, which the alien knows or should have known is a terrorist
organization.

July 30, 1997

- p. 25 -

2010FOIA4519.000623

I3C1
212(a)(3)(C)(i) - Foreign Policy
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

The Secretary of State has determined that there is reasonable ground to believe that your
entry or proposed activities in the United States would have potentially serious adverse
foreign policy consequences for the United States, to wit: _______________________.
CHARGE:
Section 212(a)(3)(C)(i) of the Immigration and Nationality Act, as amended, as an alien
whose entry or proposed activities in the United States the Secretary of State has reasonable
ground to believe would have potentially serious adverse foreign policy consequences for the
United States.

July 30, 1997

- p. 26 -

2010FOIA4519.000624

I3D
212(a)(3)(D) - Immigrant with Communist or Totalitarian Affiliation
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are an immigrant who is or has been a member of or affiliated with the Communist
Party or any other totalitarian party, domestic or foreign, to wit:
________________________.
CHARGE:
Section 212(a)(3)(D) of the Immigration and Nationality Act, as amended, as an immigrant
who is or has been a member of or affiliated with the Communist or any other totalitarian
party (or subdivision or affiliate thereof), domestic or foreign.

July 30, 1997

- p. 27 -

2010FOIA4519.000625

I3E1
212(a)(3)(E)(i) - Participation in Nazi Persecution
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about ___________________ you participated in Nazi persecution by
_____________________.
CHARGE:
Section 212(a)(3)(E)(i) of the Immigration and Nationality Act, as amended, as an alien who,
during the period beginning on March 23, 1933, and ending on May 8, 1945, under the
direction of, or in association with the Nazi government of Germany, or any government
associated with, allied with, established by, or in an area occupied by the Nazi government
of Germany, ordered, incited, assisted, or otherwise participated in the persecution of any
person because of race, religion, national origin, or political opinion.

July 30, 1997

- p. 28 -

2010FOIA4519.000626

I3E2
212(a)(3)(E)(ii) - Participation in Genocide
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about _______________ you engaged in genocide by ____________________.
CHARGE:
Section 212(a)(3)(E)(ii) of the Immigration and Nationality Act, as amended, as an alien
who has engaged in conduct that is defined as genocide for purposes of the International
Convention on the Prevention and Punishment of Genocide.

July 30, 1997

- p. 29 -

2010FOIA4519.000627

I4A
212(a)(4)(A) - Public Charge
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are likely at any time to become a public charge because
___________________________________________.
CHARGE:
Section 212(a)(4)(A) of the Immigration and Nationality Act, as amended, as an alien who is
likely at any time to become a public charge.

July 30, 1997

- p. 30 -

2010FOIA4519.000628

I4C
212(a)(4)(C)(ii) - No Affidavit of Support, Family-Sponsored Immigrant
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You applied for admission under a visa number issued under section 201(b)(2) or 203(a)
of the Act;

4.

That visa petition was filed by ___________________, your relative;

5.

That petitioner has not executed an affidavit of support on your behalf that complies with
section 213A of the Immigration and Nationality Act, to wit: _______________.
CHARGE:
Section 212(a)(4)(C) of the Immigration and Nationality Act (Act), as amended, as an alien
seeking admission under a visa number issued under section 201(b) (2) or 203(a) of the Act
by virtue of a petition filed by a relative when such petitioner has not executed an affidavit of
support as described in section 213A of the Act with respect to such alien.

July 30, 1997

- p. 31 -

2010FOIA4519.000629

I4D
212(a)(4)(D) - No Affidavit of Support: Employment-Based Immigrant
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You applied for admission under a visa number issued under section 203(b) of the Act;

4.

Your visa petition was filed by _______________, a relative (or a business controlled by
a relative in the case where a business is the petitioner);

5.

That petitioner has not executed an affidavit of support on your behalf that complies with
section 213A of the Immigration and Nationality Act, to wit: _______________.
CHARGE:
Section 212(a)(4)(D) of the Immigration and Nationality Act, as amended, as an alien
seeking admission under a visa number issued under section 203(b) of the Act by virtue of a
petition filed by a relative (or by an entity in which such relative has a significant ownership
interest) when such relative has not executed an affidavit of support as described in section
213A of the Act with respect to such alien..

July 30, 1997

- p. 32 -

2010FOIA4519.000630

I5A1
212(a)(5)(A)(i) - No Labor Certification
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You do not possess or you did not present a valid labor certification issued by the
Secretary of Labor, nor were you properly exempted therefrom.
CHARGE:
Section 212(a)(5)(A)(i) of the Immigration and Nationality Act (Act), as amended, in that
you are an alien who seeks to enter the United States for the purpose of performing
skilled or unskilled labor and in whose case the Secretary of Labor has not made the
certification as provided by Section 212(a)(5)(A)(i) of the Act.

July 30, 1997

- p. 33 -

2010FOIA4519.000631

I5C
212(a)(5)(C) - No Health Care Worker Certification
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You do not possess or you did not present a valid certificate from the Commission on
Graduates of Foreign Nursing Schools or an equivalent independent credentialing
organization verifying the information specified in section 212(a)(5)(C) of the
Immigration and Nationality Act.
CHARGE:
Section 212(a)(5)(C) of the Immigration and Nationality Act (Act), as amended, as an alien
seeking to enter the United States for the purpose of performing labor as a health care
worker, other than a physician, who has not presented a certificate from the Commission on
Graduates of Foreign Nursing Schools or an equivalent independent credentialing
organization verifying the information specified in section 212(a)(5)(C) of the Act.

July 30, 1997

- p. 34 -

2010FOIA4519.000632

I6A1
212(a)(6)(A)(i) - Alien Present Without Admission or Parole - (PWIs)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You arrived in the United States at or near ______________, on or about _________________;

4.

You were not then admitted or paroled after inspection by an Immigration Officer.
OR

4.

At that time you arrived at a time or place other than as designated by the Attorney
General.
CHARGE:
212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended, in that you are an alien present in
the United States without being admitted or paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General.

July 30, 1997

- p. 35 -

2010FOIA4519.000633

I6B
212(a)(6)(B) - Failure to Attend Removal Proceeding
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were notified to appear on ________ for a hearing before an immigration judge in removal
proceedings under section 240 or section 235(b) of the Act;

4.
4.

You failed or refused to attend that hearing;
OR
You failed or refused to remain in attendance at that hearing;

5.

On or about ___________, you departed or were removed from the United States .
CHARGE:
Section 212(a)(6)(B) of the Immigration and Nationality Act, as amended, in that you are an alien who
without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to
determine the alien's inadmissibility or deportability and who seeks admission to the United States
within five years of such alien's departure or removal.

July 30, 1997

- p. 36 -

2010FOIA4519.000634

NOTE: Most arriving aliens who are inadmissible under section 212(a)(6)(C) are subject to
expedited removal under section 235(b)(1). Use this charge, when applicable, as an additional
charge against an alien who is also inadmissible on other grounds
(including an alien who is present without inspection).
I6C1
212(a)(6)(C)(i) - Fraud or Willful Misrepresentation
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about __________, you sought to procure (or you procured) a visa, other
documentation, or admission into the United States or other benefit provided under the
Immigration and Nationality Act, by fraud or by willfully misrepresenting a material fact,
to wit: ____________________________.
CHARGE:
Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that
you are an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this Act.

July 30, 1997

- p. 37 -

2010FOIA4519.000635

NOTE: Most arriving aliens who are inadmissible under section 212(a)(6)(C) are subject
to expedited removal under section 235(b)(1). Use this charge, when applicable, as an
additional charge against an alien who is also inadmissible on other grounds
(including an alien who is present without inspection).
I6C2
212(a)(6)(C)(ii) - False Claim to U.S. Citizenship
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about ____________, you falsely represented yourself to be a United States citizen
for the following purpose or benefit: ____________________.
CHARGE:
Section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (Act), as amended, as an
alien who falsely represents, or has falsely represented, himself or herself to be a citizen of
the United States for a purpose or benefit under the Act (including section 274A) or any
other Federal or State law

July 30, 1997

- p. 38 -

2010FOIA4519.000636

I6E1
212(a)(6)(E)(i) - Alien Smuggling
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about ____________, you knowingly encouraged, induced, assisted, abetted, or aided
_________________, an alien, to enter or to try to enter the United States in violation of law.
CHARGE:
Section 212(a)(6)(E)(i) of the Immigration and Nationality Act, as amended, in that you are an alien who
at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States in violation of law.

July 30, 1997

- p. 39 -

2010FOIA4519.000637

I6F1
212(a)(6)(F)(i) - 274C Final Order
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about ________, a final order for violating Section 274C of the Immigration and Nationality
Act was issued against you.
CHARGE:
Section 212(a)(6)(F)(i) of the Immigration and Nationality Act (Act), as amended, in that you are an
alien who is the subject of a final order for a violation of Section 274C of the Act.

July 30, 1997

- p. 40 -

2010FOIA4519.000638

I6G
212(a)(6)(G) - Student Visa Abusers
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On _________ you were admitted to the United States as a nonimmigrant student under section
101(a)(15)(F)(i) of the Act;

4.

You violated a term or condition of that status, in that you ________________, which violation
occurred on _____________;

5.

You departed the United States on _________________;

6.

You have not remained outside the United States for a continuous period of five years following the
violation.
CHARGE:
Section 212(a)(6)(G) of the Immigration and Nationality Act (Act), as amended, as an alien who has
obtained the status of a nonimmigrant under section 101(a)(15)(F)(i) of the Act and who has violated a
term or condition of such status under section 214(l) of the Act and who has not remained outside the
United States for a continuous period of five years after the date of the violation.

July 30, 1997

- p. 41 -

2010FOIA4519.000639

NOTE: Most arriving aliens who are inadmissible under section 212(a)(7) are subject to
expedited removal under section 235(b)(1). Use this charge, when applicable, as an
additional charge against an alien who is also inadmissible on other grounds
(including an alien who is present without inspection).
I7A11
212(a)(7)(A)(i)(I) - Immigrant Without an Immigrant Visa
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border
crossing card, or other valid entry document required by the Immigration and Nationality Act;
and/or

3[4]. You are an immigrant not in possession of a valid unexpired passport, or other suitable travel
document, or document of identity and nationality.
CHARGE:
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the
time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired
passport, or other suitable travel document, or document of identity and nationality as required under
the regulations issued by the Attorney General under section 211(a) of the Act.

July 30, 1997

- p. 42 -

2010FOIA4519.000640

NOTE: Most arriving aliens who are inadmissible under section 212(a)(7) are subject to
expedited removal under section 235(b)(1). Use this charge, when applicable, as an
additional charge against an alien who is also inadmissible on other grounds
(including an alien who is present without inspection).
I7A12
212(a)(7)(A)(i)(II) - Immigrant Without an Immigrant Visa
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are in possession of an visa that was issued without compliance with the provisions
of section 203 of the Immigration and Nationality Act.
CHARGE:
212(a)(7)(A)(i)(II) of the Immigration and Nationality Act (Act), as amended, as an
immigrant at the time of application for admission, whose visa has been issued without
compliance with the provisions of section 203 of the Act.

July 30, 1997

- p. 43 -

2010FOIA4519.000641

NOTE: Most arriving aliens who are inadmissible under section 212(a)(7) are subject to
expedited removal under section 235(b)(1). Use this charge, when applicable, as an
additional charge against an alien who is also inadmissible on other grounds
(including an alien who is present without inspection).
I7B11
212(a)(7)(B)(i)(I) - Nonimmigrant Without a Valid Passport
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are a nonimmigrant not in possession of a passport valid for a minimum of six
months from the date of the expiration of your admission to the United States.
CHARGE:
212(a)(7)(B)(i)(I) of the Immigration and Nationality Act (Act), as amended, as a
nonimmigrant who is not in possession of a passport valid for a minimum of six months
from the date of the expiration of the initial period of the alien's admission or contemplated
initial period of stay authorizing the alien to return to the country from which the alien came
or to proceed to and enter some other country during such period.

July 30, 1997

- p. 44 -

2010FOIA4519.000642

NOTE: Most arriving aliens who are inadmissible under section 212(a)(7) are subject to
expedited removal under section 235(b)(1). Use this charge, when applicable, as an
additional charge against an alien who is also inadmissible on other grounds
(including an alien who is present without inspection).
I7B12
212(a)(7)(B)(i)(II) - Nonimmigrant Without a Valid Nonimmigrant Visa
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are a nonimmigrant not in possession of a valid nonimmigrant visa or border crossing
identification card.
CHARGE:
212(a)(7)(B)(i)(II) of the Immigration and Nationality Act, as amended, as a nonimmigrant who is not in
possession of a valid nonimmigrant visa or border crossing identification card at the time of application
for admission.

July 30, 1997

- p. 45 -

2010FOIA4519.000643

I8A
212(a)(8)(A) - Immigrant Ineligible for Citizenship
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are an immigrant who is permanently ineligible to citizenship, to wit:
____________________________________________.
CHARGE:
212(a)(8)(A) of the Immigration and Nationality Act, as amended, as an immigrant who is
permanently ineligible to citizenship.

July 30, 1997

- p. 46 -

2010FOIA4519.000644

I8B
212(a)(8)(B) - Draft Evader
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On or about __________________ you departed from or remained outside the United
States to avoid or evade training or service in the armed forces in time of war or a period
declared by the President to be a national emergency, to wit: __________[describe the
period of national emergency].
CHARGE:
212(a)(8)(B)of the Immigration and Nationality Act, as amended, as a person who has
departed from or who has remained outside the United States to avoid or evade training
or service in the armed forces in time of war or a period declared by the President to be a
national emergency.

July 30, 1997

- p. 47 -

2010FOIA4519.000645

Note: Use reinstatement for aliens encountered within the U.S. (INA § 241(a)(5))
I9A1
212(a)(9)(A)(i) - Alien previously removed once, as an arriving alien
(NOT aggravated felons)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were ordered removed under section 235(b)(1) on ____________, initiated upon
your arrival in the United States;
OR
You were ordered removed at the end of proceedings under section 240 on __________,
initiated upon your arrival in the United States;

3.

4.

You are seeking admission within five years of the date of that removal.
CHARGE:
Section 212(a)(9)(A)(i) of the Immigration and Nationality Act, as amended, in that you
have been previously ordered removed under section 235(b)(1) or at the end of proceedings
under section 240 initiated upon your prior arrival in the United States, and you again seek
admission within five years of the date of such removal, without obtaining prior consent to
reapply for admission from the Attorney General before reembarkation at a place outside the
United States or seeking admission from foreign contiguous territory.

July 30, 1997

- p. 48 -

2010FOIA4519.000646

Note: Use reinstatement for aliens encountered within the U.S. (INA § 241(a)(5))
I9A1
212(a)(9)(A)(i) - Alien previously removed two or more times as an arriving alien
(NOT aggravated felons)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were ordered removed [pursuant to section 235(b)(1)] [at the end of proceedings
under section 240], on __________________, initiated upon your arrival in the United
States;

4.

You were ordered removed [pursuant to section 235(b)(1)] [at the end of proceedings
under section 240], on __________________, initiated upon your arrival in the United
States;
[add additional charges if there are more than two previous removals as an arriving alien]

5.

You are seeking admission within twenty years of the date of your last removal.
CHARGE:
Section 212(a)(9)(A)(i) of the Immigration and Nationality Act, as amended, in that you
have more than once been previously ordered removed under section 235(b)(1) or at the
end of proceedings under section 240 initiated upon your prior arrival in the United
States, and you again seek admission within twenty years of the date of the last such
removal, without obtaining prior consent to reapply for admission from the Attorney
General before reembarkation at a place outside the United States or seeking admission
from foreign contiguous territory.

July 30, 1997

- p. 49 -

2010FOIA4519.000647

Note: Use reinstatement for aliens encountered within the U.S. (INA § 241(a)(5))
I9A1
212(a)(9)(A)(i) - Alien previously removed as an arriving alien Aggravated Felony Conviction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were ordered removed pursuant to section 235(b)(1) on _________, initiated upon
your prior arrival in the United States;
OR
You were ordered removed at the end of proceedings under section 240, on _________,
initiated upon your prior arrival in the United States;

3.

4.

You were convicted on ____________, of ________________, in the
________________ Court [at] _______________ .
CHARGE:
Section 212(a)(9)(A)(i) of the Immigration and Nationality Act, as amended, in that you are
an alien who has been previously ordered removed under section 235(b)(1) or at the end of
proceedings under section 240 initiated upon your prior arrival in the United States, and who
is an alien convicted of an aggravated felony.

July 30, 1997

- p. 50 -

2010FOIA4519.000648

Note: Use reinstatement for aliens encountered within the U.S. (INA § 241(a)(5))
I9A2
212(a)(9)(A)(ii) - Alien previously removed once, not as an arriving alien (NOT
aggravated felons)
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were ordered removed under section 240 or section _____, and you subsequently
departed the United States on or about ___________ while that order of removal was
outstanding;

4.

You are seeking admission within ten years of the date of your departure or removal;

5.

You did not obtain prior consent to reapply for admission from the Attorney General before
reembarkation at a place outside the United States or seeking admission from foreign
contiguous territory.
CHARGE:
Section 212(a)(9)(A)(ii) of the Immigration and Nationality Act, as amended, as an alien
who has been ordered removed under section 240 or any other provision of law, or who
departed the United States while an order of removal was outstanding, and who seeks
admission within ten years of the date of such departure or removal.

July 30, 1997

- p. 51 -

2010FOIA4519.000649

Note: Use reinstatement for aliens encountered within the U.S. (INA § 241(a)(5))
I9A2
212(a)(9)(A)(ii) - Alien previously removed two or more times,
NOT as an arriving alien, NOT aggravated felons
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were ordered removed under section 240 or section _____ on ___________, and/or
you departed the United States on ___________ while an order of removal was
outstanding;

4.

You were ordered removed under section 240 or section _____ on ___________, and/or
you departed the United States on ___________ while an order of removal was
outstanding;

5.

You are seeking admission within twenty years of the date of your last [departure]
[removal];

6.

You did not obtain prior consent to reapply for admission from the Attorney General
before reembarkation at a place outside the United States or seeking admission from
foreign contiguous territory.
CHARGE:
Section 212(a)(9)(A)(ii) of the Immigration and Nationality Act, as amended, as an alien
who has more than once been ordered removed under section 240 or any other provision of
law, or who departed the United States while an order of removal was outstanding, and who
seeks admission within twenty years of the date of the last departure or removal.

July 30, 1997

- p. 52 -

2010FOIA4519.000650

Note: Use reinstatement for aliens encountered within the U.S. (INA § 241(a)(5))
I9A2
212(a)(9)(A)(ii) - Alien previously removed,
NOT as an arriving alien & aggravated felony conviction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were ordered removed under section 240 or section _____, or you departed the
United States while an order of removal was outstanding;

4.

You were convicted on ____________, of ___________, in the ________________
Court [at] _______________.
CHARGE:
Section 212(a)(9)(A)(ii) of the Immigration and Nationality Act, as amended, as an alien
who has been ordered removed under section 240 or any other provision of law, or who
departed the United States while an order of removal was outstanding, and who is an alien
convicted of an aggravated felony.

July 30, 1997

- p. 53 -

2010FOIA4519.000651

Note: Use reinstatement for aliens encountered within the U.S.
(INA § 241(a)(5)) if there is a prior removal
I9B11
212(a)(9)(B)(i)(I) - Non-LPR Unlawfully Present In U.S. for 180-364 days [after
4/1/97] & departed voluntarily prior to commencement of removal proceedings
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were unlawfully present in the United States for a single period of more than 180
days but less than one year, from _____________ to ____________, because you
_________ [overstayed, EWI'd, etc];

4.

You departed the United States voluntarily on ____________, prior to the
commencement of removal proceedings;

5.

You are seeking admission to the United States within three years of the date of such
departure.
CHARGE:
Section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act, as amended, as an alien,
other than an alien lawfully admitted for permanent residence, who was unlawfully present
in the United States for a period of more than 180 days but less than one year, voluntarily
departed the United States prior to the commencement of proceedings under section
235(b)(1) or section 240, and again seeks admission within three years of the date of
departure or removal.

July 30, 1997

- p. 54 -

2010FOIA4519.000652

Note: Use reinstatement for aliens encountered within the U.S.
(INA § 241(a)(5)) if there is a prior removal
I9B12
212(a)(9)(B)(i)(II) - Non-LPR Unlawfully Present In U.S. One Year or More [after
4/1/97]
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were unlawfully present in the United States for a single period of one year or more,
from ___________ to _____________, because you _________ [overstayed, EWI'd, etc];

4.

You last [departed] [were removed from] the United States on or about _____________;

5.

You are seeking admission within ten years of the date of such [departure] [removal].
CHARGE:
Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, as amended, as an alien,
other than an alien lawfully admitted for permanent residence, who has been unlawfully
present in the United States for a period of one year or more, and who again seeks admission
within ten years of the date of departure or removal from the United States.

July 30, 1997

- p. 55 -

2010FOIA4519.000653

Note: Use reinstatement for aliens encountered within the U.S.
(INA § 241(a)(5)) if there is a prior removal
I9C11
212(a)(9)(C)(i)(I) - Unlawfully Present for One-Year Aggregate [after 4/1/97] and
Entered or Attempted to Enter Without Being Admitted
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You were unlawfully present in the United States for an aggregate period of more than
one year, from ___________ to __________, because you _________ [overstayed,
EWI'd, etc];
[add additional allegations about other unlawful periods, if applicable]

4.

You last departed or were removed from the United States on _________________;

5.

You [entered] [attempted to reenter] the United States without being admitted on
_______________;

6.

You are seeking admission within ten years of the date of such departure or removal.
OR
You are seeking admission more than ten years after the date of such departure or
removal, and you did not obtain prior consent to reapply for admission from the Attorney
General before reembarkation at a place outside the United States or seeking admission
from foreign contiguous territory.

6.

CHARGE:
Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, as amended, as an alien
who has been unlawfully present in the United States for an aggregate period of more than
one year and who enters or attempts to reenter the United States without being admitted.

July 30, 1997

- p. 56 -

2010FOIA4519.000654

Note: Use reinstatement for aliens encountered within the U.S.
(INA § 241(a)(5)) if there is a prior removal
I9C12
212(a)(9)(C)(i)(II) - Previously Ordered Removed and Entered or Attempted to
Enter Without Being Admitted
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On ______________, you were ordered removed from the United States under section
_____ of the Act;

4.

You entered or attempted to reenter the United States without being admitted on
___________________.
CHARGE:
Section 212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, as amended, as an
alien who has been ordered removed under section 235(b)(1), section 240, or any other
provision of law, and who enters or attempts to reenter the United States without being
admitted.

July 30, 1997

- p. 57 -

2010FOIA4519.000655

I10A
212(a)(10)(A) - Polygamy
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are coming to the United States to practice polygamy, to wit: __________.
CHARGE:
Section 212(a)(10)(A) of the Immigration and Nationality Act, as amended, as an alien
who is coming to the United States to practice polygamy.

July 30, 1997

- p. 58 -

2010FOIA4519.000656

I10B
212(a)(10)(B) - Guardian Required to Accompany Helpless Inadmissible Alien
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are accompanying ___________________, an alien who is inadmissible and who is
certified to be helpless from sickness, mental or physical disability, or infancy, and
whose protection or guardianship is required.
CHARGE:
Section 212(a)(10)(B) of the Immigration and Nationality Act (Act), as amended, as an alien
accompanying another alien who is inadmissible and who is certified to be helpless from
sickness, mental or physical disability, or infancy pursuant to section 232(c) of the Act, and
whose protection or guardianship is determined to be required by that alien.

July 30, 1997

- p. 59 -

2010FOIA4519.000657

I10C
212(a)(10)(C) - International Child Abduction
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You detained, retained, or withheld custody of ______________, a United States citizen
child, outside the United States from ________________, who was granted custody of
such child on _______________ by order of the ____________________Court [at]
_______________;

4.

That child has not been surrendered to the person granted custody by that order.
CHARGE:
Section 212(a)(10)(C) of the Immigration and Nationality Act, as amended, in that you are
an alien who, after entry of an order by a court in the United States granting custody to a
person of a United States citizen child, who detains or retains the child, or withholds custody
of the child, outside the United States from the person granted custody by that order, and the
child has not been surrendered to the person granted custody by that order.

July 30, 1997

- p. 60 -

2010FOIA4519.000658

I10D
212(a)(10)(D)-Unlawful Voters
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

On _________________ you voted in the ____________ election in violation of
_____________ law.
CHARGE:
Section 212(a)(10)(D) of the Immigration and Nationality Act, as amended, as an alien who
has voted in violation of any Federal, State, or local constitutional provision, statute,
ordinance, or regulation.

July 30, 1997

- p. 61 -

2010FOIA4519.000659

I10E
212(a)(10)(E) - Former U.S. Citizens Who Renounced Citizenship to Avoid Taxation
ALLEGATIONS:
1.

You are not a citizen or national of the United States;

2.

You are a native of __________ and a citizen of ______________;

3.

You are a former citizen of the United States who officially renounced your citizenship
on __________________________;

4.

The Attorney General has determined that you renounced your citizenship for the
purpose of avoiding taxation by the United States.
CHARGE:
Section 212(a)(10)(E) of the Immigration and Nationality Act, as amended, as an alien who
is a former citizen of the United States who officially renounced United States citizenship
and who is determined by the Attorney General to have renounced United States citizenship
for the purpose of avoiding taxation by the United States.

July 30, 1997

- p. 62 -

2010FOIA4519.000660

§ 94.8
§ 94.8

22 CFR Ch. I (4–1–08 Edition)
Interagency coordinating group.

The U.S. Central Authority shall
nominate federal employees and may,
from time to time, nominate private
citizens to serve on an interagency coordinating group to monitor the operation of the Convention and to provide
advice on its implementation. This
group shall meet from time to time at
the request of the U.S. Central Authority.

PART 95—IMPLEMENTATION OF
TORTURE CONVENTION IN EXTRADITION CASES
Sec.
95.1
95.2
95.3
95.4

Definitions.
Application.
Procedures.
Review and construction.

AUTHORITY: 18 U.S.C. 3181 et seq.; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
SOURCE: 64 FR 9437, Feb. 26, 1999, unless
otherwise noted.

ebenthall on PRODPC60 with CFR

§ 95.1

Definitions.

(a) Convention means the United Nations Convention Against Torture and
Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,
done at New York on December 10, 1984,
entered into force for the United States
on November 10, 1994. Definitions provided below in paragraphs (b) and (c) of
this section reflect the language of the
Convention and understandings set
forth in the United States instrument
of ratification to the Convention.
(b) Torture means:
(1) Any act by which severe pain or
suffering, whether physical or mental,
is intentionally inflicted on a person
for such purposes as obtaining from
him or a third person information or a
confession, punishing him for an act he
or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at
the instigation of or with the consent
or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or suf-

fering arising only from, inherent in or
incidental to lawful sanctions.
(2) In order to constitute torture, an
act must be specifically intended to inflict severe physical or mental pain or
suffering and that mental pain or suffering refers to prolonged mental harm
caused by or resulting from:
(i) The intentional infliction or
threatened infliction of severe physical
pain or suffering;
(ii) The administration or application, or threatened administration or
application, of mind altering substances or other procedures calculated
to disrupt profoundly the senses or the
personality;
(iii) The threat of imminent death; or
(iv) The threat that another person
will imminently be subjected to death,
severe physical pain or suffering, or the
administration or application of mind
altering substances or other procedures
calculated to disrupt profoundly the
senses or personality.
(3) Noncompliance with applicable
legal procedural standards does not per
se constitute torture.
(4) This definition of torture applies
only to acts directed against persons in
the offender’s custody or physical control.
(5) The term ‘‘acquiescence’’ as used
in this definition requires that the public official, prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or
her legal responsibility to intervene to
prevent such activity.
(6) The term ‘‘lawful sanctions’’ as
used in this definition includes judicially imposed sanctions and other enforcement actions authorized by law,
provided that such sanctions or actions
were not adopted in order to defeat the
object and purpose of the Convention
to prohibit torture.
(7) Torture is an extreme form of
cruel and inhuman treatment and does
not include lesser forms of cruel, inhuman or degrading treatment or punishment.
(c) Where there are substantial grounds
for believing that [a fugitive] would be in
danger of being subjected to torture
means if it is more likely than not that
the fugitive would be tortured.
(d) Secretary means Secretary of
State and includes, for purposes of this

382

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Department of State

Pt. 96

rule, the Deputy Secretary of State, by
delegation.
§ 95.2

Application.

(a) Article 3 of the Convention imposes on the parties certain obligations
with respect to extradition. That Article provides as follows:
(1) No State party shall 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.
(2) For the purpose of determining
whether there are such grounds, the
competent authorities shall take into
account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or
mass violations of human rights.
(b) Pursuant to sections 3184 and 3186
of Title 18 of the United States Criminal Code, the Secretary is the U.S. official responsible for determining whether to surrender a fugitive to a foreign
country by means of extradition. In
order to implement the obligation assumed by the United States pursuant
to Article 3 of the Convention, the Department considers the question of
whether a person facing extradition
from the U.S. ‘‘is more likely than
not’’ to be tortured in the State requesting extradition when appropriate
in making this determination.

ebenthall on PRODPC60 with CFR

§ 95.3

§ 95.4

PART
96—ACCREDITATION
OF
AGENCIES AND APPROVAL OF
PERSONS UNDER THE INTERCOUNTRY ADOPTION ACT OF
2000 (IAA)
Subpart A—General Provisions
Sec.
96.1 Purpose.
96.2 Definitions.
96.3 [Reserved]

Subpart B—Selection, Designation, and
Duties of Accrediting Entities

Procedures.

(a) Decisions on extradition are presented to the Secretary only after a fugitive has been found extraditable by a
United States judicial officer. In each
case where allegations relating to torture are made or the issue is otherwise
brought to the Department’s attention,
appropriate policy and legal offices review and analyze information relevant
to the case in preparing a recommendation to the Secretary as to whether or
not to sign the surrender warrant.
(b) Based on the resulting analysis of
relevant information, the Secretary
may decide to surrender the fugitive to
the requesting State, to deny surrender
of the fugitive, or to surrender the fugitive subject to conditions.

Review and construction.

Decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.
Furthermore, pursuant to section
2242(d) of the Foreign Affairs Reform
and Restructuring Act of 1998, P.L. 105–
277, notwithstanding any other provision of law, no court shall have jurisdiction to review these regulations,
and nothing in section 2242 shall be
construed as providing any court jurisdiction to consider or review claims
raised under the Convention or section
2242, or any other determination made
with respect to the application of the
policy set forth in section 2242(a), except as part of the review of a final
order of removal pursuant to section
242 of the Immigration and Nationality
Act (8 U.S.C. 1252), which is not applicable to extradition proceedings.

96.4

Designation of accrediting entities by
the Secretary.
96.5 Requirement that accrediting entity be
a nonprofit or public entity.
96.6 Performance criteria for designation as
an accrediting entity.
96.7 Authorities and responsibilities of an
accrediting entity.
96.8 Fees charged by accrediting entities.
96.9 Agreement between the Secretary and
the accrediting entity.
96.10 Suspension or cancellation of the designation of an accrediting entity by the
Secretary.
96.11 [Reserved]

Subpart C—Accreditation and Approval
Requirements for the Provision of
Adoption Services
96.12

Authorized adoption service providers.

383

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214074

Asylum Confidentiality, Public Affairs,
and Legal Considerations Related to the
Disclosure of Immigration Case
Information
George R. Martin, Appellate Counsel
Susan Mathias, Deputy Chief, CALD
Michael Gilhooly, Northeast Communications Director
Cecelia Espenoza, Senior Associate General Counsel, EOIR
Protection Law Conference
Atlanta, Georgia
May 2008

u. S. Immigration
u.s.

and Customs
Enforcement

2010FOIA4519.000663

OVERVIEW
• Asylum Confidentiality
• Public Affairs Considerations
• General Non-disclosure Provisions
• EOIR’s Perspective
u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000664

2

Asylum Confidentiality
a.k.a.
“Protection-related” Confidentiality
~
8 C.F.R. §§ 208.6, 1208.6
(hereinafter “§ 1/208.6”)
u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000665

3

Asylum Confidentiality Outline
•
•
•
•
•
•
•

Legal Background & Asylum Disclosure Prohibitions
Exceptions to Prohibitions
Remedies & Penalties
Key Case Law
8 CFR 1287.6 Authentication
Final Food For Thought
Asylum Confidentiality “Final Exam”

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000666

4

Confidentiality
CONTEST !
What multiple Oscar winning movie, in which many of
the actors portrayed refugees from Nazi occupied
Europe, contained the following dialogue?

~).

u.s.
U.S. Immigration

J~~k and Customs
Enforcement
~~ Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000667

5

Why is Confidentiality Important?
•
•
•

•
•

Safety of the applicant for protection & relatives / associates
in home country
Integrity of process and public confidence in DHS
Potential / actual breaches must be reported to OCC
supervisors, ICE OPLA HQ, and, as necessary, to EOIR and
opposing party
Potential creation of new asylum claim and/or
evisceration of ICE evidence
Potential personal liability

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000668

6

Key Resources
• 8 C.F.R. § 1/208.6
• 55 Fed. Reg. 30674, 30676 (1990) & 65 Fed. Reg. 76121,
76124-25 (2000)
• Bo Cooper Memorandum: Confidentiality of Asylum
Applications and Overseas Verification of Documents and
Application Information (June 21, 2001)
– See also USCIS Asylum Division Fact Sheet: Federal Regulations
Protecting the Confidentiality of Asylum Applicants (June 3, 2005) (cited
by circuit courts along with Cooper Memo)

• Michael Chertoff Memorandum: Disclosure of AsylumRelated Information to U.S. Intelligence and Counterterrorism
Agencies (Apr. 18, 2007)
• Relevant Circuit Court Case Law
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000669

7

8 C.F.R. § 1/208.6
• Subsection “(a)”:
“Information contained in or pertaining to any asylum
application, …credible fear determination…, and…reasonable
fear determination…, 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 [or Secretary of
Homeland Security].”

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000670

8

8 C.F.R. § 1/208.6 (cont’d)
• Subsection “(b)”:
“The confidentiality of other records kept by [DHS and EOIR]
that indicate that a specific alien has applied for asylum,
received a credible fear or reasonable fear interview [or
review]…shall also be protected from disclosure. [DHS] 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.”

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000671

9

Scope of Protected Information:
What Applications Are Covered?
• § 208 asylum & credible / reasonable fear
– See 8 C.F.R. § 1/208.6
• § 241(b)(3) withholding of removal
– See 8 C.F.R. § 1/208.3(b): asylum application deemed to
constitute withholding application
• § 207 Refugee
– As a matter of policy. See Apr. ‘07 Chertoff Memo
• CAT withholding and deferral
– Debatable, but best practice
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000672

10

Scope of Protected Information:
“Reasonable Inference” Concept
• Cooper Memorandum – generally, confidentiality is breached
when information contained in or pertaining to an asylum
application is disclosed to a third party, and the disclosure
allows the third party to link the applicant’s identity to:
– the fact that the applicant has applied for asylum;
– specific facts or allegations pertaining to the individual
asylum claim contained in an asylum application; or
– facts or allegations that are sufficient to give rise to a
“reasonable inference” that the applicant has applied for
asylum.

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000673

11

Exceptions to Disclosure Prohibitions 8 C.F.R. § 1/208.6(a)
• With the written consent of the applicant.

• In the discretion of the DHS Secretary or AG.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000674

12

Secretary Chertoff Memorandum
•

Via the Apr. 17, 2007, memo the Secretary exercised his
§ 208.6(a) discretionary waiver authority as follows:
– “[I]nformation covered by 8 C.F.R. § 208.6 may be disclosed to
any element of the U.S. Intelligence Community, or any other
Federal or state agency having a counterterrorism function,
provided that the need to examine the information [is]…in
connection with its authorized intelligence or counterterrorism
function…and the information received will be used for the
authorized purpose for which it is requested.”
– Sec.’s memo supersedes AG’s Oct. 8, 2001 memo concerning
FBI access to asylum files.
– Sec.’s memo details strict procedures for making / granting
requests.
– NSLD is POC for process questions.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000675

13

Exceptions to Disclosure Prohibitions
(cont’d): 8 C.F.R. § 1/208.6 (c)(1)
• To any USG official or contractor having a need to examine
protected information in connection with:
– The adjudication of asylum applications;
– A credible fear or reasonable fear interview or review;
– The defense of any legal action arising from the
adjudication or failure to adjudicate the asylum application,
or from a credible fear / reasonable fear determination, or
of which such application or determination is a part; or
– Any USG investigation concerning any criminal or civil
matter.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000676

14

Exceptions to Disclosure Prohibitions
(cont’d): 8 C.F.R. § 1/208.6 (c)(2)
• To any federal, state, or local court in the United States
considering any legal action:
– Arising from the adjudication or failure to adjudicate the
asylum application, or from a credible fear or reasonable
fear determination, or from proceedings of which such
application or determination is a part.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000677

15

{@UNHCR
([i!)UNHCR
“Special Status” of The UN Refugee Agency ???
• Article 35 of the 1951 Convention and Article II of the
1967 Protocol directly obligate contracting states to
cooperate with UNHCR in the exercise of its functions.
• Accordingly, upon request, may we discuss the case of
an asylum applicant of “special concern” to UNHCR ?

Q~4
..,.~ ~t~

us
.
.
U.S.
. . IImmigration
mmlgratlon

J~lf~~ and Customs
!?,~ Enfo
ceme t
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000678

16

8 C.F.R. § 1/208.6
Formal Remedies / Penalties ???

Q~ ~

u.s. Immigration

• •; and Customs
~~(-.

0

~

Enfo
cemen
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000679

17

8 C.F.R. § 1/208.6
Formal Remedies / Penalties ???

,"

• None! Compare 8 U.S.C. § 1367 (providing specific penalties
for disclosure of information in battered alien scenario).
• BUT there are important adverse impacts, and “indirect”
remedies / penalties to consider:
– Potentially endanger alien applicant & relatives /
associates in home country
– Erode faith / integrity of system and DHS
– Potentially create new asylum claim and/or eviscerate ICE
evidence
– Potential / actual breaches must be reported to supervisors,
OPLA HQ, and, as necessary, EOIR and opposing party
– Potential personal liability
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000680

18

Key Case Law
• FOIA Cases:
– U.S. Dep't of State v. Ray, 502 U.S. 164 (1991) (noting the
great privacy interest in protecting the identities of
interdicted Haitians because of potential retaliatory action).
See also Phillips v. Immigration and Customs
Enforcement, 385 F.Supp.2d 296, 305 (SDNY 2005).
• No seminal BIA precedent on § 1/208.6

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000681

19

Key Case Law
• § 1/208.6 Federal Court Cases:
– Zhen Nan Lin v. U.S. Dep't of Justice, 459 F.3d 255 (2d
Cir.2006) (finding that submission of official document to foreign
govt. for authentication, which linked alien to “conspiracy of antirevolution,” gave rise to reasonable inference of asylum
application, constituting a breach of § 1/208.6; noting that when
document indicates foreign govt. has violated human rights, that
govt.'s “opinion” regarding authenticity is suspect; remanding
case to BIA to evaluate new, independent risk of persecution
based on breach; and, finally, expressing “no opinion” whether
USG employee who breached confidentiality should be
disciplined, but noting that breach could be “firing offense”).

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000682

20

Key Case Law
• § 1/208.6 Federal Court Cases (cont’d):
– Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008) (finding
that USG overseas inquiry to foreign govt. about
authenticity of official document resulted in foreign govt.
becoming aware of alien’s name, his contact with USG,
and fact that USG possessed document noting his
imprisonment for political activism; applying Zhen Nan Lin
to find § 1/208.6 violation, and remanding to BIA to
consider whether breach gave rise to new risk of
persecution).

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000683

21

Key Case Law
• § 1/208.6 Federal Court Cases (cont’d):
– Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2006)
(holding Iranian established eligibility for DCAT where,
inter alia, Iranian officials would be able to identify his
involvement with dissident group based on immigration
court documents he must submit as part of travel doc.
process; noting while USG precluded from disclosing
asylum related information under § 1/208.6, reg. “does not
impede Iran’s actions”).
• Note: 9th Cir. decision based on erroneous
assumption as to travel doc. process vis-à-vis Iran that,
unfortunately, was never adequately developed in
record, but can be refuted in future cases.
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000684

22

Key Case Law
• § 1/208.6 Cases (cont’d):
– Averianova v. Mukasey, 509 F.3d 890 (8th Cir. 2007)
(distinguishing Zhen Nan Lin, finding no § 1/208.6 violation
where USG did not provide docs. to foreign govt., but simply
requested alien’s birth records; noting even if “disclosures”
made by providing alien’s name / birth date, and inquiring
about ethnicity, such ≠ reasonable inference of asylum
application: ethnicity is common vital statistic and many
official documents, e.g., birth / marriage cert. and some court
records, do not necessarily imply alien is seeking asylum).
• “Presumption of regularity” in USG investigations.
• Even assuming disclosure sufficient to create new asylum claim,
alien ultimately failed to establish sufficient risk of persecution.
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000685

23

Key Case Law
• § 1/208.6 Cases (cont’d):
– Abdel-Rahman v. Gonzales, 493 F.3d 444 (4th Cir.2007)
(finding that even though USG improperly disclosed military
deserter’s status as asylum applicant to foreign govt. in
violation of § 1/208.6, such does not necessarily render alien
eligible for asylum; distinguishing Zhen Nan Lin, noting BIA
already considered violation and rejected that such gave rise
to new persecution claim; observing foreign govt. had
expressed interest in alien well before USG’s improper
disclosure, and that foreign govt. had tracked alien closely in
U.S. and was seeking his return, prior to both his asylum
application and its disclosure).
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000686

24

Key Case Law
• § 1/208.6 Cases (cont’d):
– Ghasemimehr v. Gonzales, 427 F.3d 1160 (8th Cir. 2005)
(noting it would not be unreasonable for foreign govt. to have
deduced alien had applied for asylum where USG forwarded
re-photocopied / redacted IJ minute order deleting check mark
and words “granted/denied/withdrawn” from bullet dealing with
asylum; BUT denying PFR, finding alien presented no
evidence of foreign govt. reaction to altered IJ minute order
and even if it had deduced he was asylum applicant, alien
showed no potential harm from alleged disclosure - alien
MTR to the BIA had lacked any supporting documentation in
this regard).
U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000687

25

Key Case Law
• § 1/208.6 Cases (cont’d):
– Li Xiang Tang v. Gonzales, 215 Fed.Appx. 34, 36 n.2 (2d Cir.
2007) (unpublished – post FRAP 32.1) (noting while § 1/208.6
prohibits disclosure of asylum info., it excepts disclosures to
USG officials having a need to examine info. in adjudication of
asylum applications; consequently, because asylum info. re
husband was disclosed during adjudication of wife’s asylum

(b)(5)

Protection Law Conference

May 13, 2008

2010FOIA4519.000688

26

Key Case Law
• § 1/208.6 Cases (cont’d):
– Velasco v. INS, 87 Fed.Appx. 35 (9th Cir. 2004) (unpublished – preFRAP 32.1) (holding alien’s right to confidentiality vis-à-vis CAT
application not violated by INS disclosure to Salvadoran INTERPOL
office that alien was in “immigration proceedings,” as information
revealed nothing regarding the nature of alien's application for
protection).

U.S. Immigration
u.s.

and Customs
Enforcement
Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000689

27

8 CFR § 1287.6 Authentication
•

(b)(5)

•

Protection Law Conference

May 13, 2008

2010FOIA4519.000690

28

8 CFR § 1287.6 Authentication (cont’d)
• Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007) (holding
that while an alien’s own testimony may suffice to
authenticate a foreign official document, such does not mean
that an IJ must accept the document into evidence or deem its
contents true; explaining further that: 1) an IJ need not
assume that barriers exist in all asylum cases to “more
established means” of authentication; 2) an IJ is not precluded
from determining the admissibility of a document based on
judicial experience or “obvious warning signs of forgery,” as
long as such are more than guess / surmise; and 3) even if
an IJ finds sufficient prima facie evidence of authenticity, an IJ
retains discretion to determine a document’s ultimate
probative value.

→→→

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000691

29

8 CFR § 1287.6 Authentication (cont’d)
Vatyan (cont’d)
• (and finally, strongly implying that, in those circumstances
where an alien’s self-authenticating testimony should be
allowed, more than conclusory allegations must be provided,
e.g., “Vatyan provided evidence that arguably could have
supported authentication” as he was a “longtime resident” of
his country, testified he “recognized the official stamps” on the
documents, and attempted to establish a “chain of custody”).

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000692

30

8 CFR § 1287.6 Authentication
(cont’d)
• Best practice tips:

(b)(5)

Protection Law Conference

May 13, 2008

2010FOIA4519.000693

31

“Food for Thought”
• There are few bright lines given that different IJs, BIA panels,
and circuits may disagree as to whether similar fact patterns
establish a § 1/208.6 violation.
• If a violation is found, remember that such, per se, does not
automatically establish eligibility for asylum / protection
(b)(5)

•
(b)(5)

Protection Law Conference

May 13, 2008

2010FOIA4519.000694

32

“Food for Thought”
(cont’d)
• Never assume that DHS, DOS, DOJ, or even other ICE
components know about § 1/208.6 confidentiality – remind
them (and, if non- lawyers, remind them in understandable
terms).
• Under § 1/208.6, the only valid waiver of confidentiality by an
alien is a written one. Oral waivers, even on the record, are of
dubious value.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000695

33

“Food for Thought”
(cont’d)
• Further, there are no implicit waivers of confidentiality!
• Even if an alien publicizes his case in the media or fails to
request redaction in public federal court litigation, or if an
unauthorized third party is otherwise aware of the protection
claim, DHS is still bound by § 1/208.6 disclosure restrictions.
– However, “publication” by the alien might be used to
undercut any asserted new protection claim based on an
alleged DHS breach.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000696

34

”Food for Thought”
(cont’d)
•

(b)(5)

•

Protection Law Conference

May 13, 2008

2010FOIA4519.000697

35

“Food for Thought”
(cont’d)
• Final advice:
– “Whenever there is any doubt, there is no doubt.”
Robert De Niro / Ronin (1998)

• In other words, if you have any nagging doubt that § 1/208.6
confidentiality has been, or might be, breached, stop, consult
with your supervisor and, as necessary, with APLD.

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000698

36

What to do if you suspect
a § 1/208.6 breach:
•
•

(b)(5)

•

Protection Law Conference

May 13, 2008

2010FOIA4519.000699

37

Asylum Confidentiality Final Exam –
Document Verification
Official Medical Examination Report
Certificate No.: 307652
Patient: Jones, Johan
Attending Physician: Smith, Gregor

Hospital: State Hospital # 1
Date Admitted: 30 July 2003

Diagnosis & Treatment: Patient admitted with multiple bruises and
deep lacerations. Patient claims injuries occurred during detention
by state security services. No internal injuries found. Patient
sutured and released. Advised to rest at home for 2 weeks and
follow up with local medical center.
Hospital
WÜA ZÜxzÉÜ fÅ|à{
Registrar
4‐12‐07

·1111 [I~r
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1000001113

u.s.
U.S. Immigration

J~~k and Customs
Enforcement
~~ Enforce
ent

Protection Law Conference

May 13, 2008

2010FOIA4519.000700

38

Susan Mathias, Deputy Chief, CALD

u.s. Immigration

and Customs
Enforcement

Protection Law Conference

May 13, 2008

2010FOIA4519.000701

39

ICE

Office of Public Affairs
•

OPLA and OPA – Working together to finding
Common Ground for Media Response

2010FOIA4519.000702
October 2006

ICE

Before the Court
Appearance
•

If you suspect the case will attract the media
please notify the Public Affairs Officer
responsible for the area of operations

•

If you have questions about which PAO to
contact, call HQ OPA or the Regional OPA

2010FOIA4519.000703
October 2006

ICE

OPA Contacts – Local
PAO
Or if you have question on which PAO covers
the area, call:
HQ OPA - 202 514-2648
Northeast (VT) - 802 872Southern (Miami) - 305 597
Central (Dallas) – 214 905
Western (Laguna) – 949 360
(b)(2)High

(b)(2)High
(b)(2)High

•
•
•
•
•

2010FOIA4519.000704
October 2006

ICE

Discussing the Case With
OPA Step One
•
•
•
•

PAO will need to know
internal background on
case
If case has national
security connection or is
asylum case tell PAO
Work with PAO on talking
points
Let PAO know what can
and cannot be said
publicly

2010FOIA4519.000705
October 2006

ICE

Discussing the Case with
PAO Step Two
•
•
•

Provide PAO with information on the case from
GEMS
PAO will work up talking points and discuss
with attorney
If PAO unable to attend hearing, work to
prepare attorney talking points for possible
media contact outside courtroom

2010FOIA4519.000706
October 2006

ICE

Getting from NO to YES
•
•
•
•
•
•

Instead of starting with “No we can’t say
anything,” help PAO’s develop comments
The public has a right to know
ICE should not appear defensive
ICE can often speak generically about
enforcement actions
ICE should speak positively and proactively
about our congressionally mandated mission
Being transparent (without hindering the case)
is essential to building public support for ICE

2010FOIA4519.000707
October 2006

ICE

Responding to the Media
Outside the Courtroom
•

Options
ƒ Respond in Very Limited Fashion –
Stick to the Law
ƒ Politely Refer Reporters to Office of
Public Affairs – Have PAO contact info
handy
2010FOIA4519.000708
October 2006

ICE

Avoid NO COMMENT!”
•
•
•

A “no comment” appears the government is
being defensive or has something to hide
Unless the case is national security or
asylum the government can generally say
something
For example: Provide information on the
applicable area of the law to the reporter
where permissible.

2010FOIA4519.000709
October 2006

ICE

Some Suggestions if
Ambushed
•
•
•

Stick with the (appropriate) law:
“The individual was charged with being present
in the United States without inspection, a
violation of Section 212 of the INA.”
“The individual was legally admitted to the
country but committed a crime and is
removable under Section 237 of the INA.”

2010FOIA4519.000710
October 2006

ICE

Response to questions:
“Was the person just caught up
in a raid?”

•
•
•

“ICE Operations are targeted based on
investigations, intelligence and evidence.”
“Individuals who are here illegally should not
be surprised if they are arrested and placed in
removal proceedings.”
“ICE does not conduct random immigration
enforcement.”
2010FOIA4519.000711
October 2006

ICE

Talk About the Process
•
•
•

“Aliens who are charged
with being removable have
due process in an
immigration court.”
“Immigration judges work
for the DOJ and provide an
independent review of the
alien’s case.”
“Aliens do have the
opportunity to appeal the
judge’s removal order.”

2010FOIA4519.000712
October 2006

ICE

Planning ahead with OPA
can avoid most issues
•
•

•

By planning ahead OPLA and OPA keeps
everyone on the same page
Discussing controversial cases with OPA
beforehand gives OPLA attorneys advantage
of advice from public affairs

Also keeps PAO from getting the surprise call
from the media
2010FOIA4519.000713
October 2006

ICE

DRO Detainee Interview
and Facilities Tour SOP

2010FOIA4519.000714
October 2006

ICE

Introduction
Purpose
To Standardize SOPs for Response to Media
Requests
• Requests for Detainee Interviews
• Requests for Facilities Tours

2010FOIA4519.000715
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
SOP
This SOP sets procedures for initial handling of
Requests.

2010FOIA4519.000716
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Request
Request must be in written form (e-mail
acceptable) and fully identify the alien to the
extent possible.

2010FOIA4519.000717
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Reporter’s Needs
Does the reporter need or wish to take a camera
or recording device into the facility?

2010FOIA4519.000718
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Detainee
Detainee must wish to be interviewed as
indicated by signed consent form.
Detention standards require detainee be
consulted before ICE begins decision-making
process.

2010FOIA4519.000719
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
File Review and Case Synopsis
AFOD initiates alien file review and develops a
case synopsis to be forwarded for FOD and OPLA
review.

2010FOIA4519.000720
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Local OPLA Informed
The local OPLA is informed of the interview
request and provided with the case synopsis.

2010FOIA4519.000721
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
PAO Notified of Interview Decision
Upon agreement by FOD and OPLA, PAO is
notified of the decision.

2010FOIA4519.000722
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
National Security/Significance Cases
For cases with national significance or security
implications, HQOPA should be notified and their
concurrence requested.

2010FOIA4519.000723
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Routine Cases
Routine cases may be approved at field office
level but should include notification of HQOPA.

2010FOIA4519.000724
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Informing Reporters of Denial
When informing reporters that requests have been
denied, you may refer them to the six grounds in
the standards but not to a specific ground. You
may also indicate that they may resubmit their
requests at a later time for reconsideration.

2010FOIA4519.000725
October 2006

ICE

Handling Interview Requests for
Service and Contract Facilities
Detainee Refusal
If a detainee refuses a media request for an
interview, the reporter should simply be told that
the detainee has refused the offer of an interview.

2010FOIA4519.000726
October 2006

ICE

Comments or Suggestions

michael.gilhooly@dhs.gov

•

Or on Outlook at Michael W. Gilhooly

•

Office 802 872-

•

Cell 802 316-

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

•

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

2010FOIA4519.000727
October 2006

QUESTIONS ???

U.S. Immigration
and Customs
Enforcement
Enforcemen

Protection Law Conference

May 13, 2008

2010FOIA4519.000728

81

a - - -. 0
m.igraan C tom.
m
forcem.en
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-

I

Q~VAR"'''ft.,

.,~.~~~.'? U...S.". Immigration
o

-a'..$
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rt;

~

tc.~

and Customs
E
.C'.
. illO ceme t

Protection Law Conference

May 13, 2008

2010FOIA4519.000729

82

BALTIMORE OFFICE OF THE
CHIEF COUNSEL’S
OFFICE PROCEDURES MANUAL

2010FOIA4519.000730

OUTLINE
I.

INTRODUCTION

II.

FILING SYSTEMS

III.

WORK ASIGNMENTS

IV.

PRE-TRIAL ACTIONS

V.

SECURITY AND BACKGROUND CHECKS FOR RELIEF APPLICATION (8 C.F.R. §
1003.47)

VI.

ENTERING CODE OF ADJUSTMENT ON BCR

VII.

REQUESTING VISA NUMBERS FOR ADJUSTMENT CASES

VIII.

REVIEW OF CHARGING DOCUMENT

IX.

ATTORNEY WORK SHEETS

X.

WITNESS/DOCUMENT REQUESTS

XI.

FINAL ORDERS

XII.

GOVERNMENT APPEALS

XIII.

MOTIONS TO REOPEN

XIV.

FEDERAL LITIGATION

XV.

CLIENT ADVICE

XVI.

SUBPOENAS

XVII.

STAYS OF DEPORTATION

XVIII.

ACAP/IHP PROGRAM

XIX.

WORKSITE ENFORCEMENT

XX.

PERSONNEL MATTERS

XXI.

CONCLUSION

2010FOIA4519.000731

I.

INTRODUCTION

Pursuant to the Homeland Security Act of 2002, 116 Stat. 2135, Pub. L. 107-296, codified at 6 U.S.C. §§
101, et seq., immigration detention, deportation, and removal functions were transferred to the Department of
Homeland Security (“DHS”) 1 on March 1, 2003. 2 Within the Department of Homeland Security, three separate
immigration bureaus were created, the Immigration and Customs Enforcement (“ICE”) 3 , Citizenship and
Immigration Service (“CIS”) 4 , and Customs and Border Protection (“CBP”) 5 . ICE is responsible for
deportations and investigations. The ICE Office of the Principal Legal Advisor (“OPLA”) 6 is the legal arm of
ICE responsible for all litigation before the Executive Office for Immigration Review’s (“EOIR”) 7 Immigration
Courts. ICE also litigates certain cases in federal court and provides legal advise and technical assistance to
other ICE components, federal and state law enforcement agencies.
This office procedures manual has been developed as a basic guide for the efficient operation of the
Baltimore ICE Office Chief Counsel Office. While the manual tries to covers most areas dealt with by the
Baltimore Office of Chief Counsel on a daily basis, it is not intended to be an all-inclusive document! ICE
attorneys and support staff should consult with supervisors with any questions not answered by this manual. If
the Chief Counsel is unavailable, consult with the Acting Chief Counsel or Deputy Chief Counsel.

1

More information on DHS’s creation may be found on their website at www.dhs.gov.
Codified at 6 U.S.C. § 251 (2002).
3
The ICE website may be found at www.ice.gov.
4
The CIS website may be found at www.cis.gov.
5
The CBP website may be found at www.cbp.gov
6
ranet at,
2

(b)(2)High

7

2010FOIA4519.000732

II.

IMMIGRATION FILES AND RECORDS
A. The A-File (“Alien File”): An A-file or alien file, is a file relating to a single individual concerning a
Service action under the Immigration and Nationality Act, excluding non-immigration petition files.
1.

Creating the A-file: A-files are assigned through pre-numbered and bar-coded folder type jackets
furnished to each Headquarters (“HQ”). A more in-depth summary of the following material can
be found in the Records Operations Handbook (ROH), Form M-407. This handbook replaces the
Administrative Manual (AM) 2700 which provided guidance and procedures to be used in
administering the Records program. Attorneys and Support Staff should consult with the
Baltimore District Records program concerning all matters relating to A-file or T-file creation.
•
•

•

3.

Left-hand tab folders are used for odd numbered files and right-hand tab folders are used for
even numbered files.
Each jacket number is preceded by the letter “A” and followed by eight or nine digits. A
separate A-file is used for each individual. Blank A-file jackets are obtained from the
Records and Information Section. A Central Index System (CIS) check must be conducted to
ascertain if an A-file exists prior to opening a new Alien file.
An A-file is to be opened when one of a variety of actions occurs relating to an individual, or
upon receipt of an application and/or petition. Such actions include: whenever a formal
Investigation Report is prepared, when a Notice to Appear (Form I-862), Warrant of Arrest is
issued, when an alien is apprehended and taken into DHS custody, when an immigrant visa is
issued, when a Form I-485 is filed, when a Form I-130 is filed, and upon receipt of refugee
processing documents.

Other types of alien files: There are various types of alien files other than the A file. These
include the following:
•

T-File: The T-file (or temporary file) is an A-file created for a limited purpose. For example,
often when an alien with a prior immigration history is detained by CBP at an airport they will
create a T-file in order to process him/her. The T-file jacket is preceded by the letter “T” then
followed by the corresponding eight or nine digit A-file number. T-files may only be created
by records and are registered in the National File Tracking System (“NFTS”). Once the
purpose of the T-files creations has been fulfilled, the file must be consolidated with the A-file
and sent to records to have the T-file deleted from the NFTS system.

•

WF-File: The WF-file (or work folder) is a file created by the ICE attorney or support staff to
house certain documents or for organization purposes while awaiting the arrival of the A-file.
The WF-file is not an official file. As such, as soon as the A-file is received the WF-file’s
contents must be placed in the A-file. Since the WF-file was not created by records there is
no need to return the folder to records for its deletion. WF-files are, likewise, not tracked by
NFTS.

•

Service Center files: Service center files are files created by a CIS Service Center to
adjudicate petitions or applications for relief. The jackets of these files are preceded by the
initials of the service center who created the file. For example, Eastern Service Center file
jackets are preceded by the letters “EAC.”

2010FOIA4519.000733

4.

A-file Contents: All documents and materials contained in an A-file shall be filed in
chronological order with the most recent document filed on top. ICE’s record of proceedings in
an exclusion, deportation or removal case contains copies or originals of documents that have
been filed with the Executive Office for Immigration Review (EOIR) by ICE or the alien. ICE’s
record of proceedings in a visa petition or other application case contains the official Service
record and may be certified and provided to EOIR when necessary for judicial review. EOIR
maintains its own records of proceedings for all cases filed with the Office of the Immigration
Judge or Board of Immigration Appeals (“BIA”). In some older A-files that were created prior to
the separation of EOIR from the Service, the A-file will contain the Record of Proceeding relating
to actions taken by the Special Inquiry Officer.

5.

ICE Record of Proceedings: Documents and materials that constitute the record of an application,
petition, hearing or proceeding before the Service or before EOIR is considered to be the Record
of Proceeding and is placed on the left-hand side of the A-file. Documents and materials
submitted by an alien and/or prepared by Service personnel and not considered to be part of the
Record of Proceeding is placed on the right-hand side of the A-file.

B. General Counsel Electronic Management System (GEMS): The General Counsel Electronic
Management System (“GEMS”) is a web based database, knowledge management, and trial information
repository. GEMS provides real-time information on cases being litigated in the immigration and the
federal courts. GEMS is comprised of three principal integrated component subsystems with specific
purposes: Case/Project Management, Object Management, and Knowledge Management. ICE Assistant
Chief Counsels are required to input their trial notes into the GEMS Case/Project Manager.
•

GEMS Case/Project Manager: As noted above Baltimore Assistant Chief Counsels are
required to input trial notes into the GEMS Case/Project Manager under the “events” tab. The
notes must include what happened at the hearing, the reset date and time. You should also
input who the Immigration Judge was at the hearing, the amount of time the case took to
litigate (including preparation time), whether an order has been issued or is pending, and bond
information if applicable. The notes must be entered immediately at the conclusion of an
individual hearing. Assistant Chief Counsels should forward cases to the designated legal
clerk for purposes of updating
(b)(2)High
GEMS Case/Project Manager.
(b)(2)High
(b)(2)High

•

GEMS Object Manager:

C. Organization of Files
1.

A-files which are maintained in the Chief Counsel’s File Room or in individual attorney
offices. The A-files are filed in numerical order and are charged in the National File
Tracking System (“NFTS”).

2.

Each ICE attorney must have access to the NFTS data
(b)(2)High
based, and can be accessed at http//www.????.gov.
(b)(2)High
ANY TRANSFER OF ANY FILE MUST BE REFECTED IN THE

3.

The Baltimore Office of Chief Counsel files are divided into five main categories:
2010FOIA4519.000734

1) Main file room: files awaiting initial master calendar hearing notices and
awaiting individual hearings.
2) Appeals: files awaiting the filing of a notice of appeal with the Board of
Immigration Appeals (“BIA”) or pending cases before the BIA.
3) Awaiting Orders: those files awaiting decisions by the Immigration Judges.
4) Federal Court: consisting of District Court and Fourth Circuit cases. Some of
these case filed or copies of these files are often kept near the back of the office
in cubbies across from the Chief Counsel’s office.
5) Detained cases: pending detained cases are kept in a drawer outside of the
Janice Robertson’s cubicle.
6) Attorney offices: files may be kept in the individual attorney offices. Files
kept in attorney offices must only be for pending cases which the attorney will
be prosecuting or cases related to a pending case which the attorney will be
prosecuting. NO OTHER FILES MAY BE KEPT IN INDIVIDUAL
ATTORNEY OFFICES.
7) Classified files: are kept in the office file safe. Access to classified files is
limited to a “need to know” basis. Access is also limited to those with the
appropriate security clearance.

B. Request and Receipt of Files

C.

1.

A-files may be requested, received from other offices or divisions through NFTS. All Afiles must be charged out to other offices or divisions through NFTS. Files charged to
outside divisions should be transferred via NFTS to records.

2.

All A-files transferred directly to or from another unit or File Control Office must be
routed through the Chief Counsel staff and received or charged out in the NFTS system.

Retrieval of Files for Hearings
1.

Support Staff are responsible for the retrieval of A-files for the Chief Counsel’s Office and
from other locations prior to the scheduled hearing date.
a.

Support Staff will annotate GEMS to indicate that a file has been located and
received to the Office of Chief Counsel.

b.

If the file is not located, the Support Staff will annotate GEMS and will request the
files through established channels.

c.

If a file cannot be located through normal established procedures, requests may be
made for a Special Search to the Records Unit Supervisor.
2010FOIA4519.000735

d.

If all efforts have been made to locate an A-file and has not been located before the
MASTER calendar hearing date a work folder may be created the following
actions may be taken:
•
•
•

•

e.

GEMS should be annotated to reflect that a work folder has been created.
The work folder must be labeled with a WF before the A numer.
Work folders are intended to act as a temporary file folder and as a
repository for documents obtained before receipt of the actual A-file. It is
not a temporary file (T-file). Consequently, a work folder need not be
created or tracked in NFTS.
Once the A-file is received the contents of the work folder must be
transferred to it.

If all efforts have been made to locate an A-file and has not been located before the
MERITS calendar hearing date a work folder may be created the following
actions may be taken:
•

A work folder may be created by requesting to copy the Immigration
Court’s record of proceedings (“ROP”).

2010FOIA4519.000736

D.

E.

III.

File Control During Pendency of Proceedings
1.

Files involving pending proceedings are to be maintained in the Chief Counsel’s Office
until the Immigration Judge has rendered a decision in the case (unless it is a detained
cases).

2.

Files containing final orders (whether Immigration Judge or BIA orders) will be
delivered/routed to an assigned officer in the Deportation and Removal Office (“DRO”) if
they are not already there.

3.

Files in which the Government or the alien has filed an appeal will not be maintained in
the legal section until briefs are completed; these files are routed to Records.

4.

Files in which the BIA has rendered a decision will be forwarded to the assigned officer in
DRO.

5.

Cases in which the Federal Court has rendered a decision will be forwarded to the
assigned officer in DRO.

6.

Requests for files from operating units during the pendency of proceedings will be dealt
with on a case-by-case basis taking into consideration the need of the operating unit for
the file and whether the file will be returned by a date set by the Chief Counsel’s Office.
If the A file is needed in the litigation unit, a copy will be provided to the requestor.

Classified Files
1.

The transmittal of classified files to and from the Chief Counsel’s Office shall comply
with all applicable established procedures relating to the movement of those files. The
Chief Counsel’s Office shall endeavor to not maintain classified files or documents.
Additional guidance may be found under DocuShare 8 .

2.

Only those individuals with the appropriate level security clearances may handle or review
classified files (e.g., A-file classified as Secret can only be reviewed by an individual with
a Secret clearance).

3.

Staff should always contact a supervisor prior to taking action involving a classified file.

WORK ASSIGNMENTS
A.

Attorneys
1.

Official Titles: The lead supervisory attorney for the ICE/OPLA Baltimore filed office is
referred to as the “Chief Counsel.” The “Deputy Chief Counsel” assists the Chief Counsel
with supervision of the Baltimore field office. The official title for an ICE/OPLA field
attorneys working under the Chief Counsel is “Assistant Chief Counsel.” The Baltimore
field office has 2 attorneys who litigate cases in Federal District Court. The official title
for these attorneys is “Special Assistant United States Attorney.”

(b)(2)High

2010FOIA4519.000737

2.

Assignment of Cases: Assistant Chief Counsels are assigned court days before a particular
judge. This court schedule is prepared by the Deputy Chief Counsel 2-3 months ahead of
time. Assistant Chief Counsels will be assigned master calendar dockets, individual
calendar dockets, and duty days. Whenever possible Assistant Chief Counsels will be
assigned days outside of court and/or non-duty days in order to prepare the cases to be
presented before the Immigration Court. A-files are assigned to the Assistant Chief
Counsel pursuant to this schedule. Generally, ICE attorneys will be assigned to be before
an Immigration Judge for an entire day and will be responsible for the preparation, trial
and appeal of all cases on that Judge's docket for the assigned day. Attorney/Judge/day
assignments are set forth on the Monthly Court Calendar.

3.

Calendar Assignments: To ensure that attorneys have sufficient time to prepare cases for
master and individual calendar appearances, ICE attorneys are given their Judge/day
assignments at least approximately 30 days in advance of the merits hearing day. On or
about the first day of each month, the District Counsel or his designee will prepare and
distribute the monthly Court Calendar for the following month. For example, on February
1, the Court Calendar for the month of March will be distributed. Attorneys should
immediately review the monthly Court Calendar and advise the District Counsel of any
errors or required revisions.

4.

Federal Court Litigation: Federal court litigation is handled by the Special Assistant
United States Attorneys ("SAUSA). In the Baltimore District, the Chief Counsel is crossdesignated as a SAUSA. The Baltimore Deputy Chief Counsel is, likewise, designated as
a SAUSA. All matters involving actual or threatened federal court litigation must
immediately be brought to the attention of the SAUSAs or the Acting Chief Counsel.
Additional ICE Attorneys may be assigned to work on specific federal court cases under
the supervision of the SAUSAs.

5.

Criminal Alien/Institutional Hearing Program: One ICE Attorney is designated as
Criminal Alien/Institutional Hearing Program (“IHP”) Coordinator. It is the responsibility
of the Criminal Alien/IHP Coordinator to manage all aspects of the Criminal Alien/IHP
dockets, including criminal alien charging document review, trial preparation, and case
appeals of IHP cases, Criminal Alien/IHP case tracking, and criminal alien legal advice to
the District. Additional ICE attorneys may be assigned to Criminal Alien/IHP program as
the need arises.

6.

Administrative Removal: The Duty Attorney is responsible for the reviewing the legal
sufficiency of notices of intent to issue a final administrative removal orders, and final
orders issued pursuant to section 238(b) of the Act. If deemed legally sufficient the Duty
Attorney will prepare a short memo indicating as such. This memo must be saved to the
GEMS I-manage database.

7.

Legal support: In addition to Immigration Court proceedings, the Chief Counsel’s Office
provides technical and legal assistance to the:
•
•
•

ICE Office of Investigations.
ICE Office of Deportation and Removal.
Office of Immigration Litigation (“OIL”)

2010FOIA4519.000738

B.

Support Staff
1.

C.

Support Staff are assigned duties by the Chief Counsel, or the Deputy Chief Counsel.
These assignments are designed to support the ongoing legal work of the Chief Counsel’s
Office and are modified as dictated by the demands placed on the office.

Other
1.

The Chief Counsel’s Office is responsible for requests for legal advice from other ICE
components. All advice shall be rendered promptly.

2.

The Chief Counsel’s Office is responsible for liaison with the private bar. All calls shall
be returned promptly.

3.

The Office of the Chief Counsel has a daily Duty Attorney, to respond to inquiries by
other ICE components, other federal or state government agencies, the private bar, and the
public. The Duty Attorney also assists the support staff with questions and to ensure the
proper routing of correspondence, motions, and orders.

4.

The Duty Attorney is required to review and respond, where deemed appropriate and/or
necessary, to all motions filed with EOIR. Duty Attorneys will be assigned motions for
review that are received by the Office of Chief Counsel at noon on the day preceding
his/her scheduled duty day to noon of the actual duty day.

5.

Should the Duty Attorney find it unnecessary to respond to a motion GEMS must be
annotated providing the reasons

6.

All media inquiries will be directed to the Chief Counsel only. Deputy and Assistant
Chief Counsel’s are not to respond to the media-orally or in writing unless so designated
at a further time 9 .

7.

The legal assistant may be assigned all or some of the following responsibilities, including
using the Federal Financial Management System (FFMS), Travel Manager review, and
advice to the Chief Counsel of available budget balances on a regular basis.

8.

Assists the Chief Counsel or Deputy Chief Counsel in the overall administration of the
legal program.

9.

Serves as an advisor and source of knowledge on various administrative matters (areas
include personnel, budget and finance, office supplies, services and equipment, building
space and procurement).

10.

Receives and sorts all general incoming correspondence, directing it to the appropriate
individuals. Support staff also receives Notices of Appeal, BIA Decision, and BIA
Transcripts for processing.

11.

Tracking of BIA transcripts:

9

fairs Guidance

(b)(2)High

(b)(2)High

2010FOIA4519.000739

NOTE:

IV.

a.

Check transcript to determine which party is appealing (alien or Government) for
timely submission of the brief.

b.

Retrieve file (Records or outlining branches).

c.

Distribute to attorney according to the Assistant Chief Counsel of record at the
merits hearing or by Appeal Assignment list.

d.

Annotate the briefing date sent to parties.

12.

Responsible for coordination with any ICE Time and Attendance clerk providing support
to the Office of the Chief Counsel.

13.

Receives and sorts incoming correspondence from local EOIR.

14.

Provides case status information to requesting individuals in ICE, Citizenship and
Immigration Services, and Customs and Border Protection.

15.

Pulls files as required and files documents as necessary.

16.

Answers phones, directs calls to appropriate individuals and takes messages.

17.

Maintains central depository of request for file from other FCO’s.

18.

Responsible for general filing of incoming and office documents to A files.

19.

Responsible for creation of Record of Action or attorney worksheets.

20.

Prepares documentary submissions to be filed as court exhibits.

21.

Ensures that A files, or copies of files, are timely transmitted for FOIA purposes.

This is intended only as a summary and not an all-inclusive list of support staff assignments.
It is not intended to modify the current performance work plan in any regard.

PRE-TRIAL ACTIONS
The Chief Counsel’s Office is responsible to ensure that all pre-trial actions mandated by statutes,
regulations, local court rules, court orders, OPLA guidance and other mandates are complied with.
A. Local Operating Procedures: Baltimore Assistant Chief Counsels are required to strictly comply
with the Baltimore Immigration Court’s local operating procedures 10 .
1.

Filing evidence: The Baltimore Local Operating Procedures requires that, in additions to
complying with 8 C.F.R §§ 1003.31 and 1003.32, all documents filed with the Immigration Court
be two hole punched at the top of the page with holes 2-3/4 inches apart. All exhibits and

10

A full copy of the Baltimore Immigration Court’s local operating procedures may be found on the EOIR virtual law library at
http://www.usdoj.gov/eoir/efoia/ocij/localop/bal.pdf.
2010FOIA4519.000740

documents must be paginated and must include a table of contents with page number
identification. All exhibits must be tabbed with letter designations.
2.

Opposing Parties: Documents served on the opposing party must be in the identical format to
those submitted to the Immigration Court. This includes indexing and pagination.

3.

10-day Rule: All proposed exhibits and briefs must be filed with the Immigration Court no later
than 10 calendar days prior to the scheduled individual calendar hearing, unless otherwise
authorized by the Immigration Judge, or where good cause is shown. Late submissions may be
accepted for filing at the discretion of the Immigration Judge upon a showing of good cause for
the tardy filing. Weekends (Saturdays and Sundays) and official federal holidays are counted
toward the computation of filing due dates. If a filing deadline falls on a weekend or official
federal holiday, the filing must be effected no later than the last business day prior to the weekend
or holiday.

4.

Witnesses: Assistant Chief Counsels shall name all proposed witnesses they intend to present to
the Court and provide a brief proffer of each witness’ testimony. The witness proffer must
include the estimated length of the testimony and the language in which the witness will testify.
The Immigration Judge may require that witnesses execute and file an affidavit as part of the
exhibits filed. Immigration Judge Bruce Barrett and Elizabeth Kessler both require such
affidavits. The local operating procedures require that witness lists and proffers be filed with the
Immigration Court no later than 10 calendar days prior to the scheduled individual calendar
hearing, unless otherwise ordered or permitted by the Immigration Judge where good cause is
shown.

5.

Court hours: The Immigration Court intake/filing window is open to receive documents from
8:00 a.m. through 3:30 p.m. each business day. The Baltimore Immigration Court will not accept
after 3:30 p.m. The window, however, remains open until 4:30 p.m. for all other purposes.

2010FOIA4519.000741

V.

TRIAL
A. Master Calendar Appearances—Attorney Responsibilities
1.

It is the responsibility of the assigned attorney to take any and all actions necessary to protect or
improve the ICE’s position.

2.

The assigned attorney will, when appropriate, prepare and file any post-hearing briefs or motions
that are requested by the Court or required to protect or improve the ICE's position.

B. Merits Hearings—Attorney Responsibilities
1.

It is the responsibility of the assigned attorney to take any and all actions necessary to protect or
improve ICE's position.

2.

The assigned attorney will, when appropriate, prepare and file any post-hearing briefs or motions
that are requested by the Court or required to protect or improve the ICE's position.

3.

It is the responsibility of the ICE attorney to ensure that the appropriate biometric security checks
are completed before the merits hearing. This responsibility includes post-hearing biometric
security processing (See Section V of this manual).

D. Duty-Attorney Responsibilities
1.

The Duty Attorney is required to review and respond, where deemed appropriate and/or
necessary, to all motions filed with EOIR. Duty Attorneys will be assigned motions for review
that are received by the Office of Chief Counsel at noon on the day preceding his/her scheduled
duty day to noon of the actual duty day.

4.

Should the Duty Attorney find it unnecessary to respond to a motion GEMS must be annotated
providing the reasons for the decision to not respond.

5.

All media inquiries will be directed to the Chief Counsel only. Deputy and Assistant Chief
Counsel’s are not to respond to the media-orally or in writing unless so designated at a further
time.

E. GEMS Attorney Notebook
1.

It is the responsibility of the ICE attorney assigned to the Master Calendar appearance and the
attorney assigned to the merits hearing to ensure GEMS is appropriately updated. Entries should
document and explain all matters relating to the Court's actions, the procedural status of the case,
representations made and actions taken by the ICE attorney and respondent or respondent's
counsel or legal representative, any legal issues raised, and any other matter that should be known
by the next ICE attorney handling the case.

2.

While the case is still pending before the Immigration Court and where the A-file is still in the
possession and control of the Baltimore Office of Chief Counsel a GEMS coversheet should be
printed out and placed on the right side of the A-file.

2010FOIA4519.000742

V.

SECURITY AND BACKGROUND CHECKS FOR RELIEF APPLICATION (8 C.F.R. § 1003.47)

(b)(2)High, (b)(5)

2010FOIA4519.000743

(b)(2)High, (b)(5)

11

See 8 C.F.R. § 1003.47(e)
2010FOIA4519.000744

(b)(2)High, (b)(5)

VII

(b)(2)High

2010FOIA4519.000745

within 3 days of the merits hearing. The visa request form may be faxed to the Department of States.
Upon completion, the Department of State Immigrant Visa Control Office will annotate the same form
indicating that a visa number has been allocated and fax it back to the requestor. After the hearing, the
assigned attorney should fax the form back to Immigrant Visa Control to confirm whether or not the
adjustment application was granted by the immigration judge—indicate in the Block “CONFIRM Y/N”
Y if granted and N if not granted.
VIII. REVIEW OF CHARGING DOCUMENTS FOR LEGAL SUFFICIENCY
All charging documents received in the Office of the Chief Counsel which have mandated review
requirements are reviewed by the duty attorney. After an attorney reviews a charging document the
GEMS shall be annotated accordingly. If the case is not approved, the case is returned to the issuing unit
for appropriate action. A memorandum outlining the charging document’s deficiencies and outlining the
changes to be made should be appended to the A-file. If the charging document is legally sufficient the
ICE attorney may sign the Application for Order to Show Cause and Processing Sheet (Form I-265)
attesting to the legal sufficiency of the charging document.
IX.

ATTORNEY WORKSHEETS
Everything that happens before the Immigration Court, Board of Immigration Appeals, and in the
field must be annotated. The Office of Chief Counsel is responsible for all annotating the attorney work
sheet and, thereafter, inputing this information into the GEMS database.
A. GEMS Attorney Worksheet: ICE Attorneys are responsible to ensure that all the appropriate
GEMS fields are properly completed in each case. All actions taken or observed by a Chief Counsel,
Deputy Chief Counsel, and Assistant Chief Counsel must be documented under the “EVENTS” tab in
GEMS. GEMS notes must reflect the procedural posture of the case and adequately convey
necessary information to staff. These may include a designation of the attorney of record, the judge,
the date, appearances of and on behalf of the respondent, pleading, type of relief requested, the time,
date, and type of next hearing, whether witnesses or additional documents are required, disposition,
whether an appeal was reserved or taken, and any other matters deemed important. The attorney is
responsible for inputting all information from the GEMS Attorney Worksheet to the on-line GEMS
Attorney Notebook.
B. GEMS Attorney Notebook: The online GEMS Attorney Notebook also allows access to case
information and the recording of case information without retrieving the A-file. Therefore, all actions
relating to a case, including phone calls with private counsel or government employees, should be
recorded in the GEMS Attorney Notebook. Documents (ie: applications, photos, passports..) may
also be scanned into GEMS. As many of the GEMS Attorney notebook fields should be completed.
For example, where there is a final decision by the Immigration Judge the “final decision” checkbox
should be annotated.

X.

SPECIAL INTEREST CASES
Special interest cases includes national security, enforcement, human rights, and protection law cases.
Other special interest cases include high profile cases and/or cases related to a high profile ICE initiative.
Special interest cases carry different reporting, preparation, and follow-up requirements than non-special
interest cases.
2010FOIA4519.000746

A. National Security Law Division (“NSLD”) Cases: NSLD cases (“NSLD”) involve charges under
sections 212(a)(3) or 237(a)(4) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. §
1182(a)(3) or 1229(a)(4), except for any case involving charges under INA sections 212(a)(3)(E) or
237(a)(4)(D). National security cases also include cases where an alien is suspected of being
involved in terrorist or other security-related activity, irrespective of whether ICE actually lodges a
212(a)(3) or 237(a)(4) security-related charge of removal.
•

NSLD has a point of contact within the Baltimore ICE Office of Chief Counsel. All cases
involving national security must be immediately reported to the Chief Counsel, the Deputy Chief
Counsel, and the Baltimore NSLD Assistant Chief Counsel.

B. Enforcement Law Division (“ELD”) Cases: ELD cases involve significant criminal cases
involving extradition, fugitives sought by countries with which the U.S. does not have an extradition
treaty, or aliens involved in particularly egregious criminal activity. ELD cases also involves
significant agency initiatives that are a part of a national ICE initiative such as Operation Predator or
Operation Community Shield. Lastly, ELD cases also include any case that has or is likely to
generate national media or Congressional attention.
•

ELD has no local point of contact within the Baltimore Office of Chief Counsel. All cases
involving ELD issues must be immediately reported to the Chief Counsel and the Deputy Chief
Counsel.

C. Human Rights Law Division (“HRLD”) Cases: HRLD cases involve participants in genocide,
participants in acts of torture or extrajudicial killing, and any case involving charges under sections
212(a)(3)(E) or 237(a)(4)(D) of the Act. Lastly, HRLD cases involve human rights abuser cases and
any case in which an alien in the United States is suspected of committing or otherwise participating
in serious human rights abuses such as persecution or particularly serious violations of religious
freedom.
•

HRLD has a point of contact within the Baltimore ICE Office of Chief Counsel. All cases
involving human rights abusers, persecutors, or participants in genocide, torture, or extrajudicial
killings must be immediately reported to the Chief Counsel, the Deputy Chief Counsel, and the
Baltimore HRLD Assistant Chief Counsel.

D. Appellate Litigation and Protection Law Division (“ALPLD”) Cases: APLD cases involve
specifically identified protection law issues. Because of the rapidly evolving nature of protection
law, this set of issues is set forth separately under Attachment #. As contested issues become settled
law and as new areas of contention arise, it is anticipated this list will change over time, and the
Offices of Chief Counsels will be notified whenever that occurs.
•

APLD has no local point of contact within the Baltimore Office of Chief Counsel. All cases
involving APLD issues must be immediately reported to the Chief Counsel and the Deputy Chief
Counsel.

E. Classified Information: Some special interest cases may involve classified information. Only
secure and appropriate means are to be used to transmit classified information. The Immigration
Judge can consider relevant evidence, which is classified under Executive Order 12958, as amended,
to reach a decision regarding custody or relief from removal. See C.F.R. §§ 1003.19(d), 1240.11(a)

2010FOIA4519.000747

and (c)(iv); see also 8 C.F.R. §§ 1240.33 (exclusion proceedings) and 1240.49(a) and (c) (deportation
proceedings). 13
1. Using Classified Information: Upon discovery of classified material that contains information
that is relevant to custody or an application for relief from deportation the Chief Counsel, in
coordination with the NSLD, will determine whether it is necessary to submit such information to
the Immigration Judge.
2. Declassifying: If the Chief Counsel determines that the submission of information contained in
classified material is necessary, the NSLD Assistant Chief Counsel will request a review of the
classified material by the originating agency for possible declassification, or, if declassification is
not possible, an unclassified summary. CLASSIFIED EVIDENCE WILL NOT BE
SUBMITTED TO THE IMMIGRATION JUDGE WITHOUT OBTAINING APPROVAL
TO DO SO FROM THE APPROPRIATE AUTHORITY.
o Procedures Before Immigration Judge: Upon receiving the appropriate approval the ICE
attorney will do the following:

XI.

a.

File a “Motion to Consider Classified Information” to be served on the
Immigration Judge and the respondent or opposing counsel. The motion will cite
to 8 C.F.R. §1240.11(a) (or 8 C.F.R. § 1003.19(d) (custody proceedings), 1240.33
(exclusion proceedings) or 1240.49(a) (deportation proceedings)) for authority,
and will not describe the evidence to be considered.

b.

Prepare an indexed exhibit with required classification and other security marking.
A copy of the classified exhibit will not be served on the respondent or attorney.

IMMIGRATION JUDGE ORDERS
A.

B.

Final Orders of the Immigration Judge: Orders are usually received from the Immigration
Judge immediately upon conclusion of the hearing, and placed in the administrative file. Once
the case is completed GEMS must be updated as soon as reasonably possible.
•

Orders by Mail: If the Immigration Judge elects to prepare a written decision, typically due to
the presence at the hearing of the press or numerous family members/witness, the Office of
the Immigration Judge will serve the decision on the Office of Chief Counsel by mail. In
cases where the Immigration sends the order via interoffice mail or issues a written decision
the ICE attorney will update all the relevant GEMS filed as soon as the order is received.

•

Detention and Final Orders: Where an alien is detained and receives a final order either
terminating proceedings or ordering his/her removal, a courtesy copy of the order may be
emailed or faxed to DRO. If the file cannot be routed within the day the order should be
emailed or faxed, followed by a courtesy call to advise DRO.

Appeals: Administrative appeals of Immigration Court decisions are adjudicated by the Board of
Immigration Appeals (“BIA”). The BIA is the highest administrative appellate body charged by
the Attorney General of the United States with adjudicating all appeals arising from the

13

, ICE, NSLD.

(b)(2)High

(b)(2)High

2010FOIA4519.000748

Immigration Court. The BIA also adjudicates some specifically enumerated issues arising from
CIS adjudicators. 14 The BIA maintains an excellent practice manual. Greater guidance on appeal
issues and procedures may be found in this practice manual. 15 Some significant procedural
appeal requirement affecting the Office of Chief Counsel are:
•

Reserving Appeal: The attorney assigned to represent ICE at the immigration hearing is
responsible for determining whether or not to reserve appeal. Appeal should be reserved
unless there is absolutely no doubt that it is not in the interest of ICE to take an appeal.

•

Appeal Period: With the exception of bond decisions, parties to an immigration hearing have
30 days within which to file a notice of appeal with the BIA.

•

Filing an Appeal: Notices of appeals must be filed within 30-days from the Immigration
Judge’s decision. Notices of appeal must be filed on form EOIR-28. The BIA considers the
appeal “filed” only when the notice of appeal is received by the BIA. Given this rule appeals
to the BIA should be mailed via either certified return receipt mail or via DHL overnight
express. ICE counsel is responsible for sending any correspondence to the BIA in a way that
may be independently verified by the Office of Chief Counsel.

•

Appeal Briefs: When an appeal is filed the BIA will issue a briefing schedule. Typically the
BIA will also provide a transcript of the proceedings. The assigned attorney will prepare and
file ICE’s appeal brief without waiting for receipt of the transcript of proceedings, unless the
transcript is necessary for the proper preparation of the brief. The assigned attorney will
maintain possession of the A-file until receipt of the decision of the BIA. ICE attorneys are
REQUIRED to comply with any and all deadlines set by the Immigration Judge and the BIA.

•

Alien Appeal: Where an alien appeal is taken the A-file will be reassigned to the last ICE
Attorney who was responsible for the merits hearing. If that ICE Attorney is unavailable (ie:
the ICE Attorney has been reassigned or left the Baltimore Office of Chief Counsel) the
appeal will be reassigned to the Duty Attorney for the day the appeal was received. If an alien
appeal is not filed within the 30-day period the A File must be routed to DRO in a timely
manner.

•

ICE Appeals: As noted in subsection 3, ICE appeals must be filed with the BIA within 30days on a form EOIR-26. 16 Once an ICE Appeal is taken the A-File will be retained by the
assigned attorney for briefing. If the an appeal is not taken the assigned attorney will forward
the A-file to DRO. ICE attorneys are REQUIRED to comply with any and all deadlines set
by the Immigration Judge and the BIA.
a.

Automatic Stays of Custody Decisions: In bond appeals the ICE Attorney may
seek an automatic stay of custody decisions by the Immigration Judges.
Automatic stays requests must be sought by filing form EOIR-43. Automatic
stay request must be approved beforehand by the chief counsel or deputy chief
counsel. THE EOIR-43 MUST BE FILED NO LATER THAN 24-HOUR
FROM THE DATE OF THE IMMIGRATION JUDGE’S DECISION. IN
ORDER TO PERFECT THE STAY A NOTICE TO APPEAL MUST BE

14

8 C.F.R. § 1003.1(d)(3).
http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm.
16
ICE, Appellate Counsel.
15

(b)(2)High

(b)(2)High

2010FOIA4519.000749

FILED WITHIN 10-DAYS OF THE IMMIGRATION JUDGES DECISION. 17
NOTICE OF APPEALS MUST BE APPROVED BY THE OFFICE OF
APPELATE COUNSEL AND PROTECTION LAW DIVISION (“APLD”).
Requests for automatic stays and notices to appeal must be emailed to APLD.
b.

XII.

Brief: The Government’s appeal brief should be thoroughly researched and well
written. If the attorney assigned to the case cannot write the brief the brief
should be reassigned.

MOTIONS
A.

Motions to Reopen
1.

2.

B.

Alien Motions to the Immigration Court: When a motion to reopen is received in the
Chief Counsel’s Office will time/date stamp the motion upon receipt.
a.

Joint Motions to Reopen are routed to the Duty Attorney assigned to the day the
motion is received. All joint motions must be reviewed and approved by the
Chief Counsel. Assistant Chief Counsels may not join a motion to reopen
without approval of the Chief Counsel.

b.

The attorney who receives the file will create an event record in GEMS in the
category “Motion to Reopen” and record the date of receipt.

c.

The Office of the Chief Counsel should examine the A-file and/or motion papers
to determine whether or not to respond. If the Assistant Chief Counsel decides
not to respond the reasons should be annotated in GEMS. All efforts will be
made to take the appropriate action on motions to reopen within 10 days of
receipt. All actions on Motions to Reopen will be noted in GEMS and responses
stored in GEMS through GEMS iManage.

ICE Motions to the Immigration Court: All ICE motions must be filed with the
Immigration Court pursuant to the local rules and must comply with the regulatory
requirements under 8 C.F.R. § 1003.23(a).
a.

All ICE motions to the Immigration Court must include a proposed order for
signature by the Immigration Judge. Proposed orders should conform to the
format contained in Appendix E of the Baltimore Local Operating Procedures.

b.

Pursuant to 8 C.F.R. § 1003.23(a) the parties must use a Certificate of Service
that conforms to the format in Appendix.

Applicability to Other Motions
These procedures contained in section XIII(A) are applicable to motions to reconsider made or
received by the ICE Office of Chief Counsel.

17

8 C.F.R. §1003.19(i)(2).
2010FOIA4519.000750

XIV. FEDERAL LITIGATION
A.

Court Proceedings: Federal litigation refers to immigration cases within the district that are
litigated either in the Federal District Court or the Fourth Circuit Court of Appeals. Applicable
jurisdiction provisions are primarily found at Sections 106 and 1329 of the Immigration and
Nationality Act, as well as 28 U.S.C. Sections 2241 and 1331, and the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231. Some federal litigation is handled by the Office of Chief
Counsel, which works with the U.S. Attorney’s Office and Office of Immigration Litigation on
such cases. The Chief Counsel and the ICE attorney designated as a Special Assistant United
States Attorney (“SAUSA”) must be familiar with Federal Rules of Civil Procedure; Federal
Appellate Rules; and, Local District and Circuit Court Rules.
1.

XV.

Inquires and Documents: It is vitally important that inquiries and documents pertaining to
federal litigation be promptly brought to the attention of the Chief Counsel or the
Baltimore SAUSA. All telephone inquiries concerning any matter involving federal
litigation and all incoming documents shall be forwarded to the Chief Counsel or the
SAUSA.
•

Upon receipt of any documents which indicate initiation of a federal litigation case,
the Chief Counsel or her designee shall contact the AUSA and, when appropriate, the
OIL attorney, and advise him or her of the court action.

•

It is the responsibility of the Office of Chief Counsel to timely complete litigation
reports for the AUSA handling the case, as well as providing necessary support as may
be needed to fully represent the Government in the litigation. This includes securing
Government witnesses for any testimony needed for a district court hearing.

•

The Office of Chief Counsel shall advise the operating unit of any decision rendered in
the federal litigation case. However, no action shall be taken against the alien until the
mandate is issued by the court. In those cases adverse to the alien, once the mandate is
issued, the case file should be closed, and forwarded to DRO.

CLIENT ADVICE:
A.

Legal Advice: The Office of the Chief Counsel is routinely contacted for legal advice on a
variety of issues relating to immigration. When the advice sought involves a pending case
assigned to an Assistant Chief Counsel, he or she may exercise his or her judgment in providing
the advice orally. To the extent possible, the Assistant Chief Counsel should obtain the relevant
A-number and record advice given orally in GEMS.
•

B.

Advise to the Agency v. Client: When the advice sought involves unique, sensitive or policy
related issues, the request must be made through appropriate supervisory channels to the
Office of Chief Counsel. The Chief Counsel will review the request and prepare the
appropriate response in a timely manner. Only the Office of Principal Legal Advisor may
issue official “Legal Opinions” for the agency. The Office of Chief Counsel provides legal
advice to the client.

Significant Interest Cases: The Office of Chief Counsel is responsible for reporting cases of
interest or significance to the Office of Principal Legal Advisor, ICE. Such cases include:
2010FOIA4519.000751

•
•
•
•
•
•
•
•

National Security Cases
Cases Involving Classified Information
Investigations Relating to National Security
Significant Criminal Cases
Human Rights Abusers
Other High Profile Cases
Novel or Unique Legal Issues of Special Significance
Significant Achievements/Accomplishments

XVI. SUBPOENAS
A.

Under DHS guidelines, subpoenas must be served on the Office of the Chief Counsel. Personnel
receiving subpoenas will immediately bring them to the attention of the Chief Counsel, Deputy
Chief Counsel, or designated Assistant Chief Counsel.

XVII. STAYS OF DEPORTATION/REMOVAL
A.

Where an alien has filed a motion to reopen/reconsider before the BIA, the alien is in custody, and
the Government intends to remove the person, the BIA will notify the Government point of
contact. Pearson Memo, November 2, 2001 “Emergency Stay Requests Filed with the Board of
Immigration Appeals.”
1.

Upon receipt of other stays of deportation orders entered by any other court, the Office of
Chief Counsel or her designee or legal assistant shall promptly notify the appropriate unit
telephonically and follow up in writing. See Attachment One. Ninth Circuit stays are
routed through Los Angeles DRO, which then notifies other DRO offices in the circuit via
cc: mail.

2.

Types of Stays:
a.

Automatic:
1)
Motion to reopen filed with the BIA after an in absentia order.
2)
Motion for a stay filed in the Ninth Circuit. There is an automatic stay
once a motion for a stay is filed until the Court issues a decision on the
merits of the motion for a stay.
3)

b.

Motion for stay filed in District Court. There is no automatic stay, but
there has been a past practice and policy not to remove an alien after he
files for a stay with the District Court. If the Service is to remove an alien
after he has filed for a stay with the District Court, past policy required
Service to notify the Court, at which time it would usually grant the stay.

Not Automatic Stay:
1)
Filing an appeal of an order of removal to the Ninth Circuit. Unless a
motion for a stay is filed.
2)
Filing an appeal with the District Court. Unless a motion for a stay is filed,
there is no automatic stay.
3)
Motion to reopen to BIA.
2010FOIA4519.000752

XVIII. CRIMINAL ALIENS

XX.

A.

Criminal Alien Charging Documents: All criminal alien charging documents must be reviewed
by the Office of Chief Counsel for legal sufficiency. Once a notice to appear is approved it may
be served on the court. The assigned attorney will record the review as an event in GEMS.

B.

All administrative removal charging
Administrative Removal Charging Documents:
documents must be reviewed by the Office of Chief Counsel for legal sufficiency. After approval
for legal sufficiency, the file is returned to the officer designated to issue the notice. The assigned
attorney will record the review as an event in GEMS.

PERSONNEL MATTERS
All actions requiring supervisory approval should be submitted to the Office of Chief Counsel in a timely
manner. These actions include, but are not limited to, leave and promotion requests. Leave will be
approved pursuant to the Administrative Manual and the Collective Bargaining Agreement, when
appropriate, priority of submission (earlier dated requests get approved first), Immigration Judge docket
coverage, and agency needs are usually balanced and considered.

XXI. CONCLUSION
The procedures and guidelines established herein are for the efficient operation of the Office of Chief
Counsel. Where reference is made to Chief Counsel, an attorney designated as Acting in that capacity is
responsible to perform the required functions.
Modifications to these procedures may be made by the Chief Counsel to meet specific needs of the
office. Attorneys are encouraged to be creative and innovative to perform the functions of the office and
to recommend improvements.
In any process or procedure where the Office of the Chief Counsel and the Collective Bargaining
Agreement are in conflict the Collective Bargaining Agreement will take precedence.

ATTACHMENTS
1.
2.
3.
4.
5.

Notification of Stays
Significant Case Report combined with One Page Report
EOIR-43 Reporting Form
Operation Predator Adverse Decision Reporting Form
Request for Immigrant Numbers

2010FOIA4519.000753

ATTACHMENT ONE

2010FOIA4519.000754

ATTORNEY WORK PRODUCT - DO NOT RELEASE
STAY DECISION NOTIFICATION

Date:____________________

To: Detention and Removal Office
From: Office of Chief Counsel
Re:

____________________________________________________________

Case No.

________________________________________________________

A stay has been entered by the following court in the above matter
effective _______________________________.
()

Immigration Judge
()
Written Order Attached
()
Oral Order
()
Motion to Reopen Filed (Section 242B)

()

Board of Immigration Appeals
()
Written Order Attached
()
Telephonic Decision
()
Motion to Reopen Filed (Section 242B)

()

United States District Court
()
Written Order Attached
()
Oral Order
()
Habeas Corpus Petition Filed

()

United States Court of Appeals
()
Written Order Attached
()
Oral Order
()
Petition for Review Field (Non-Aggravated Felon)

()

United States Supreme Court
()
Written Order Attached
()
Oral Notification from Solicitor General/OIL

()

Other ________________________________________________

PLEASE TAKE NO ACTION TO ENFORCE THE EXPULSION ORDER UNTIL FURTHER
NOTICE

2010FOIA4519.000755

ATTACHMENT TWO

2010FOIA4519.000756

SIGNIFICANT CASE REPORT (SCR)
From:

(OCC POC Name/Title):
(Office/Phone):
(Date/Time):
(District):
(Contact Information):

( emergency numbers)

DETAILS
(NOTE: ONE FORM MUST BE SUBMITTED FOR EACH INDIVIDUAL CASE)

A Number:

JTTF Agent Assigned:

Attorney Assigned:

Last Name:

First Name:

Middle Name:

DOB:

POB:

Citizenship:

Nationality:

Ethnicity:
(may be relevant to persecutor cases)

Operation name: (If applicable)
IJ Case
(Immigration Court)
Non-IJ Case
(adjudications or ongoing investigation)
Federal Litigation
(Habeas Corpus, Mandamus action, past litigation, PFR, Extradition)
Pending Criminal Prosecution:
Yes
No
Date NTA filed:
NTA charges:
Immigration Status: (LPR/Visa holder/PWI)
Date, place and manner of entry:
Custody Location/Status:
Bond set by District: $
Legal Procedural History:
Operational History:

Bond set by IJ: $
(When will the alien appear in court, past appearances in court, previous legal proceedings)

(How did case come to ICE’s attention)

A-File Location and Status:

(Does the OCC have the file, if not where is the file and has it been requested)

Classified information relevant to the case: Yes

No

* IF A PRIORITY, THIS INFORMATION MUST BE TRANSMITTED IMMEDIATELY TO THE PRINCIPAL LEGAL
ADVISOR, THE DEPUTY PRINCIPAL LEGAL ADVISOR, THE DIRECTOR OF FIELD LEGAL OPERATIONS, THE
SPECIAL COUNSEL, THE CHIEF OF STAFF AND THE APPROPRIATE HQ DIVISION CHIEF.

2010FOIA4519.000757

Precedence: Priority or Routine
If priority:
To:

Litigation
Date: 00/00/0000

Principal Legal Advisor
Deputy Principal Legal Advisor
Director of Field Legal Operations
Special Counsel
Chief of Staff
Division Chief (NSLD, HRLD, or ELD)

If routine:
To:

Director of Field Legal Operations
Division Chief (NSLD, HRLD, or ELD)

Name; A-number

CURRENT DEVELOPMENTS:

BACKGROUND:

FURTHER ACTION:

RECOMMENDATION:

2010FOIA4519.000758

ATTACHMENT THREE

2010FOIA4519.000759

EOIR-43 Reporting Form
[Please e-mail to Appellate Counsel only after completion of Chief Counsel review.]
Alien Name / A#:

236(a) or 236(c) or Arriving Alien:

Chief Counsel Office /
Assigned Attorney:
NSLD Case (Yes/No):

Specify Any Special 43 Category (e.g., “OPPRED”):
Date of IJ Bond / Release Order:

Date of EOIR-43 Filing:

Summary of Flight Risk / Dangerousness: (Use more space if necessary.) (If criminal alien,
please detail: conviction type / date / underlying circumstances / conviction documents in
record.)

Summary of IJ Reasoning in Setting Bond / Releasing: (Use more space if necessary.)

Chief Counsel 43 Approval Date:
[Operation Predator Cases Only. Chief Counsel, if recommending AGAINST a 43 and/or
bond appeal, please provide explanation below. Use more space if necessary.]

▼ Below Sections to be Completed by HQ Only ▼
Appellate Counsel 43 Approval / Disapproval Date (and explanation of any disapproval): [If NSLD
case, also note NSLD approval / disapproval.]

Field Director Comments [Operation Predator Cases Only]: [For use if Appellate Counsel has
disapproved 43.]

2010FOIA4519.000760

ATTACHMENT FOUR

2010FOIA4519.000761

Operation Predator “Adverse Decision” Reporting Form
[Please e-mail to Appellate Counsel only after completion of Chief Counsel review.]
[Please also complete an initial “EOIR-43 Reporting Form” if not previously prepared in case.]
Alien Name & A#:

Chief Counsel Office /
Assigned Attorney:

Type of Adverse Decision (check one):
IJ Termination or Grant of Relief
BIA Dismissal of ICE Bond Appeal
US District Court Habeas Decision

Date of Adverse Decision:

Alien Currently Detained?

No

Yes

Summary of Adverse Decision: (Use more space if necessary. Please also include a description
of any additional evidence / information on the predatory crime that may have been
uncovered since the time of initial IJ bond hearing.)

Chief Counsel Position on Further Review (E.g., Appeal / AG
Referral) (If “no,” please provide reasoning below.)

Yes

No

▼ Below Sections to be Completed by HQ Only ▼
Appellate Counsel Position on Further Review : (Provide any Yes
No
comments below.)

Field Director Position on Further Review (if necessary):
(Provide any comments below.)

Yes

No

2010FOIA4519.000762

ATTACHMENT FIVE

2010FOIA4519.000763

REQUEST FOR IMMIGRANT NUMBER(S)

TO: IMMIGRANT VISA CONTROL, U.S. DEPT OF STATE
FAX: (202) 663-1083
PHONE: (202) 663-1513
FR: DHS/ICE, [Office location], CHIEF COUNSEL’S OFFICE

For VO use
TOTAL ALLOCATED:

FAX: (xxx) xxx-xxxx

PHONE: (xxx) xxx-xxxx

REQUESTED BY: _______________________________________
DATE: ________________________________________________
Advance Request for Hearing Date: ________________________

*****VISA CONTROL*****VISA CONTROL*****VISA CONTROL*****VISA CONTROL*****

DATE
REQUESTED

COUNTRY
OF CHARGE

CLASS
SYMBOL

PRIORITY
DATE

DATE OF
BIRTH

A- NUMBER

QTY

CONFIRM
Y/N

Note to Trial Attorney: FAX back status of visa number. Use last column
to indicate yes or no answer please.

2010FOIA4519.000764