™ U.S. DEPARTMENT OF HOMELAND SECURITY 1 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT ACADEMY INVESTIGATIVE DIVISION Homeland Security This document may contain sensitive law enforcement information that is exempt from release under Exemption 7 of the Freedom of Information Act. The ICE. Academy Freedom of Information Act Coordinator must be consulted before any of the information in this document is released. — ALIEN ENCOUNTERS DEC/07SYLLABUS COURSE TITLE: ALIEN ENCOUNTERS. COURSE NUMBER: 542.01 COURSE DATE: — DEC/O7 DESCRIPTION: This course presents a discussion of the methods that are utilized in order to determine the alienage and removabilty of subjects that are encountered during the course of an investigation. ‘TERMINAL PERFORMANCE OBJECTIVE (TPO): Given a simulated field situation, the trainee will identify removable aliens according to statute, policy, and procedure. ENABLING PERFORMANCE OBJECTIVES (epo): EPO #1: Identify the purpose of questioning subjects. EPO #2; Identify the primary questions used to establish allenage. EPO # 3: Determine if alien subjects are removable from the United States. EPO#-4: Exercising prosecutorial and custody discretion. A. EPO #1; Identify the purpose of questioning subjects. 1. Toeffectively nd unauthorized aliens during the course of an i ation, 2. The purpose of this questioning is to determine whether the person encountered is an unauthorized alien. This is accomplished by establishing alienage and removability. 3. Although the special agent usually has a reason (predication) to question, the initial aE is a considered to be a consensual encounter. 4, Section 287(e)(1) gives officers the authority to interrogate without a warrant, In order to conduct this interrogation, the officer needs reasonable suspicion based on articulable facts (more than one) that the subject is an alien. 5, The special agent may not detain the person for questioning (Terry stop) unless there is reasonable suspicion based on articulable facts (more than one) that the person is an unauthorized alienB. _EPO# ‘The mandatory fist step in any official encounter is for the special agent to identify himseiffherself by name, agency, and tile. The officer should never assume that the person encountered knows who sihe is, even if s/he is wearing a raid jacket, badge, etc. : Identify the primary question used to establish allenage. C. _- EPO #3: Determine if alien subjects are removable from the United States. 1 (Once itis established that the subject is a cltizeh of a foréign country, the officer needs to determine if the subject is an unauthorized alien and ‘therefore removable. The alien would be considered to be unauthorized if: a. “The subject was not lawfully admitted to the United States; or b. After lawful admission, the subject violated his lawful immigration status ‘As a special agent, you will be enforcing numerous sections of law related to the removal of aliens. There are two categories of removable aliens: a. _Inadmissible ~ alien is not or has never been awfully admitted to the U.S. (Le. EW), fraudulent documents at admission) , —_Deportable ~ alien has been lawfully admitted to the U.S., but has Violated his lawful Immigration status. (.¢. Criminal, Overstay)4,{/ There are some types of unauthorized aliens that are encountered more often In the field. Common examples of removable aliens are as follows: .EW| - An alien who entered the U.S. without inspection by an inspector of the BCBP. Overstay - An alien who was admitted as @ non-immigrant vis has remained in the U.S. longer than 6 months. rand Status Violator - An alien who was admitted as a non-immigrant visitor or student and is working in the U.S. (without authorization) All aliens are required to carry proof of registration (Resident alien cards, passports, ete.) on thelr person. Failure to do so is a misdemeanor violation [8 USC 1304(e)]. However, this criminal jolation is rarel ‘Once lawful admission is estabished, the special agent wil then ascertain whether the subject has violated his/her lawful status in the U.S. 10. Once the special agent has the probable cause necessary to determine that the lawfully admitted subject has violated his/her status, the special agent will apprehend her/him and/or process herfhim for removal EPO #4: Exercising prosecutorial and custody discretion. 4 Legal and policy background. “Prosecutorial discretion” is the authority of an agency charged with enforcing a law to decide whether to enforos, or not to enforce, the law against someone. (former INS Commissioner's Memorandum of Noveriber 7, 2000)2 5. 6. ICE, like other enforcement agencies, has prosecutorial discretion and exercises it everyday. ICE makes decision on prosecutorial discretion. In the immigration context, the term of prosecutorial discretion applies not only ‘0 the discretion to Issue, cr fle a Notice to Appear (NTA), but also toa broad range of other discretionary enforcement decisions, including among others: @, Focusing investigative resources on a particular offense or conduct, deciding whom to stop, question, and arrest. Maintaining an alien in custody ‘Seeking expedited removal or other forms of removal by means other than a removal proceeding. ICE setting or dismissing a proceeding, Granting deferred action or staying a final action Agreeing to voluntary departure Withdrawal of an application for admission h, Other action in lieu of removing the alien; pursuing an appeal; and” executing a removal order. The favorable exercise of ‘prosecutorial discretion” means a discretionary decision not assert the full scope of ICE 's enforcement authority as permitted under the law. Such decisions will take different forms, depending oni the status of a particular matter, but include decisions as not issuing an NTA, not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirement, and approving deferred action. erga Courts recognize that prosecutorial discretion applies in the civil, administrative arena just as it does in criminal law. The U.S. Supreme Court “has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 631 (1985). Both Congress and the Supreme Court have recently reaffirmed t concept of prosecutorial discretion applies to ICE enforcement activities, ‘Such as whether to place an individual in deportation proceedings. INA. ‘section 242(g); Reno v. American-Arab Anti-Discrimination Committee. 525 U.S. 471 (1999). ‘The “discretion” in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances. Consequently, it is a powerful too! that must be used responsibly.410. ‘One it is established that the subject has a medical conditions that should trigger or flag a need for case review and consideration for prosecutorial discretion, the officers are authorized by law and expected to exercise discretion in a judicious manner at all stages of the enforcement process. (ICE-DRO Director's Memorandum of December 11, 2006) Examples of medical conditions requiring case review and consideration for prosecutorial discretion when making custody determinations for adults and juveniles aliens. @. Advanced chronic conditions with complications (e.g., dialysis with liver disease). Advanced immuno-compromised diseases (¢.g., HIVIAIDS, cancer) Pendingirecent organ transplants. Paraplegics/mult-imb amputees confined to wheelchairs. ‘Muiti-degenerative diseases in the very elderly. Extreme mental retardation/mental ilness/mental incompetence. Blindness. Significant pregnancy complications. yemeaog In situations where staff must respond to a pickup request or detainer placed ‘against an adult or juvenile alien with severe medical condition or psychiatric Condition, the Field Office Director (FOD) should weigh the appropriateness for taking that person into federal custody absent a mandatory detention requirement, exceptional concem such as national security, or articulable danger to the community thet cannot be addressed by the referring agency. A favorable exercise of discretion should be considered on a case-by-case basis whenever a medical or psychiatric evaluation, diagnosis, treatment plan, or other documentation provided by the referring agency indicates the existence of extreme disease or an impairment that makes detention problematic and/or removal highly unlikely. Exercising prosecutorial discretion when considering whether to accept these types of referrals allows DRO to: a. Show compassion and humanitarian concer, when appropriate, b. Maximize impact on enforcement and removal by not detaining aliens Who are unable to complete removal process because of severe ilness. c. Reduce catastrophic health care costs.co 12. 13, 14, 16. 16. In situations where itis neither practical nor desirable to cancel a detainer or deny the pickup of a seriously Il alien (e.g, high profile case, lack of sufficient documentation), the FOD should take the adult or juvenile into custody and proceed with immigration proceedings and custody determinations as appropriate under he law (e.g., parole or release recognizance). ‘Thé case.of any alien subject to mandatory detention shall be coordinated with local counsel and the Executlve Office of Inimigration Review (EOIR) to expedite proceedings or arrive at a resolution. The U.S. Public Health Service (PHS) may be consutted when additional medical information or guidance is needed to clarify the type and severity of medical condition or to Identify the special needs of a detainee, The case of any alien released from ‘custody shall be handled in accordance with policy and procedure for non- detained aliens. poe While the ultimate authority to rake custody determinations rests with the FOD in most cases, requests for Headquarters assistance to address novel situations or medical conditions as they relate to adult detainees may be addressed to the Detention Management Division or Removal Management Division, as appropriate. For minors detained in the custody of ICE, novel ‘questions should be addressed to the Field Office Juvenile Coordinator (FONC) or, if unresolved, to the Headquarters National Juvenile Coordination Unit, due to vulnerabilties and special requirements of this population. IN CRIMINAL CASES, PROSECUTORIAL DISCRETATION REST SOLELY WITH THE AUSA. Requests for assistance from Headquarters’ Custody Determination Unit {(CDU), Travel Document Unit (TDU), or Air Transportation Unit (ATU) should be accompanied by the necessary medical documentation and immigration ‘case history to enable headquarters staff to atrive at the best determination or arrangement for the alien. ndition or to identify amples of situations ‘considering case review for consideration and prosecutorial discretion before taking @ nursing mother into custody. (ICE-Assistant Secretary's Memorandum of November 7, 2007). Examples of situations considering case review for consideration and prosecutorial discretion before taking a nursing mother Into custody. (ICE- Assistant Secretary's Memorandum of November 7, 2007). @. Absent any statutory detention requirement concems such as national security, threats to public safety or other investigative interests, the nursing mother should be release on an Order of Recognizance or ‘Order of Supervision and the Alternatives to Detentions programs should be considered as an additional enforcement fool.b. In situations where ICE has determined, due to one of the above listed concems or a statutory detention requirement to take a nursing ‘mother into custody, the field personnel should consider placing a mother with her non-U.S. citizen child in the T. Don Hutto or Berks family residential center, provided there are no medical or legal issues that preclude their removal and they meet the placement factors of the facility. Fora nursing mother with a U.S. citizen child, the pertinent state social service agencies should be contacted to identify and ‘address any caregiver issues the allen mother might have in order to ‘maintain the unity of the mother and child of the above listed release ‘condition can be met. ‘The decision to detain nursing mothers shall be reported through the programs operational chain of command.$$$ rarricrrar Gre, Lesson Plan Overview (Course PEN ENCOUNTERS ‘ourse Purpose "This course presents a discussion of the methods that are utilized in lorder to determine the alienage and removability of subjects that are ‘encountered during the course of an investigation, jeld Performance iven a simulated field situation, the trainee will identify removable jective iens and determine the actions necessary to affect an arrest cording to statute, policy, and procedure, Enabling (Training) 1. Identify the three categories of LEO encounters with the ‘erformance Objectives public. 2. Identify the purpose of questioning subjects. 3. Identify the primary question used to establish alienage. 4, Determine if alien subjects are removable. 5. Determine the procedures necessary to affect an arrest. jctional Methods [1 hour classroom lecture, PowerPoint presentation, and a classroom | prssise (2 hours total) fPraining Aids None’ Method of Evaluation — Multiple choice examination Student Materials/ [Student workbook References ‘instructional Equipment Classroom, writing surface (chalkboard, flipchart), and a computer ached projector i ICE ACADEMY ALIEN ENCOUNTERS 7/18/2006 1_ PARTICIPANT GUIDE. L INTRODUCTION A. Purpose of Course One of the duties of an ICE officer/agent is to encounter and appreberd removable aliens. This duty can be critical to the successful completion of cases. In order to discern which aliens are in the United States in violation of law, it is crucial that the ICE officer/agent know the method of encountering and identifying removable aliens in the field. B. Objectives The objectives for this course are as follows: 1, Identify the three categories of LEO encounters with the public. Identify the purpose of questioning subjects. ‘Identify the primary question used to establish alienage. Determine if alien subjects are removable, ‘Determine the procedures necessary to affect an arrest. pays ICE ACADEMY ALIEN ENCOUNTERS 7718/2006 2$$$ rarericrrart Go I ENCOUNTERING ALIENS A. LEO-Public Encounters Law Enforcement encounters with private individuals have been divided into three categories: the arrest, the investigatory stop and consensual encounters. People'v. Cascio, 932 1. The first and least intrusive encounter is when an officer ion 1385 (Colo merely approaches an individual on a street and asks if he is willing to answer a question; because the encounter is Terry v. Ohio, 392 US ina public place and is consensual, it does not constitute 1, 19 n.16 (1968) "seizure" within the meaning of the Fourth Amendment. -ysyizs y Bostick $01 This type of questioning does not require a warrant Us. 429 (1991) providing that a reasonable person would understand that ~ he or she could refuse to cooperate. The initially US v. Chan-Jimenes, consensual encounter is transformed into a seizure when, sf 0, considering all the circumstances, a reasonable person oe 34.1324 00" Cie. would believe that he isnt fre to leave, Circumstances arma, Hoda that might indicate a seizure, even where the person did 499 US. 621 (1991) not attempt to leave, would be the threatening presence of “°° US: several officers, the display of a weapon by an officer, physical contact of the person by the officer or the use of ts Saco Janguage or tone of voice indicating thatthe officer's : ‘request might be compelled. Remember these oe circumstances would be based on the totaly of the 7) "4 Fsoitahay situation as seen through the eyes of a reasonable ae person. With regards to determining alienage, ICE officers may interrogate any alien or person believed to be an alien as to his or her right to be or remain in the United States. Nero 2. The second type of encounter is when the officer may Scena justifiably restrain an individual for a brief investigatory . inquiry if he has an “reasonable suspicion” based on articulable facts (more than one!) that the person has SCER 287.8002) committed or is about to commit a crime. Individuals US. v. Vega, 72F.34 may be detained for a period of time where officers are proceeding reasonably to dispel or confirm their 507 (* Car. 1995) suspicions. Again, this type of encounter does not require ‘a.warrant. This situation many times stems from 2 eG eae consensual encounter but, unlike the consensual : encounter, the officer must identify himself or herself to detain an individual for further investigation. ‘SAUL ORNELAS and ISMAEL ORNELAS- TENEOMS Datitinwone ICE ACADEMY ALIEN ENCOUNTERS 78/2006 3a errant Gove LEDESMA, Petitioners, ». UNITED STATES, 3, The final category is the full-scale arrest, which must 517 U.S. 690 (1996) be based on probable cause. A warrant should be obtained unless the ICE officer has reason to believe 8 CFR 287.8(c) that the person is likely to escape before a warrant can ‘be obiained, i.e. An alien present in the United States in violation of the INA with few ties to the community. B. Purpose of Questioning Subjects 1. To effectively apprehend ilegal aliens during the course of an investigation, the ICE officer/agent will have to question individuals using one of the aforementioned encounters. One of the more common encounters used isthe consensual encounter; therefore, a casual and friendly approach will generally assist in obtaining a more favorable result. 2. Although not mandatory at this stage, the ofScer may ‘want to identify himselherself at this time. The officer should never assume thatthe person encountered knows who he/she is, even if they are plainly identified. By identifying himseif/herself, the officer ensures thatthe alien knows that they have encountered a member of law enforcement and adverse actions on their part, Le, lynig or assaultive behavior, may have ramifications. Should the officers choose not to identify themselves at this time, such adverse actions may be difficult to later prosecute. 3. Although the purpose of this questioning is to determine whether the individual encountered is in the United States in violation of the Immigration and Nationality Act, the questioning may begin ina much Sy, Delgado, 466s. more benign manner to obtain additional articulable 2}0 (1984) facts (Language ability, accents ete); however, the goal of the questioning, usually to establish alienage and Toaicasea) _ removebility, should not be lost. 1 C. Establishing alienage ICE ACADEMY ALIEN ENCOUNTERS 711812006 4$$$ $$$ Parricreanr Gurr 1 ‘The question used to ascertain the alienage of an individual is “Of what country are you a citizen?” ‘This question enables the officer to obtain a clear and unambiguous declaration of citizenship. If the subject informs the agent that he/she is a citizen of a country other than the United States, questioning will continue to determine removability.. At this time the officer has enough information to establish reasonable suspicion and detain the individual pending a determination of removability, if this level of ‘encounter has not already been reached, Ifthe subject informs the officer that he/she is a citizen of the United States, and the officer believes him/her, questioning will terminate, If not, the officer may continue questioning for as long as the subject permits. (Consensual), until the agent has the reasonable suspicion backed by articulable facts to justify a brief investigatory inquiry or until the agent has probable cause to effect an arrest. If an officer does not have enough articulable facts to detzin the subject and the ‘person wants to end the conversation, the officer must allow the person to leave. Ifa reasonable person ‘would not believe they have the ability to leave; as above, the encounter is no longer consensual and may be subject to 4" amendment requirements, US. v. Karaount, 379 F.3d 1139 (th 2004) ‘Remember that US. Citizens are not required to ‘carry proof of citizenship! 8 CER 287.80) Florida v. Rayer, 460 U.S. 491 (1983) ICE ACADEMY 78/2006 ALIEN ENCOUNTERS 5$$$ rarer Gov D. 1 Removability Once it is established that the subject is a citizen of a foreign country, the agent needs to determine ifthe subject is an illegel alien and therefore removable. The alien would be considered to be removabie if the subject was not lawfully admitted to the United States or after lawful admission, the subject violated his Jawfal immigration status. ‘The aforementioned two categories of aliens are referred to as: i. Inadmissible ~ alien is not or has never been lawfully admitted to the U.S. (ie. EWY, frandulent documents at admission) ii, Deportable ~ alien has been lawfully admitted to the U.S., but has violated his lawful immigration status. (,¢. Criminal, Overstay, etc.) If the subject claims that he/she is lawfully resent in the United States, he/she should be able to prove his/her claim by producing a document, ie., passport, -551, 1-586, EAD, etc.; otherwise, failure to do so is a misdemeanor violation under 8 USC 1304(e). Should this take place, subject may be held as an investigative inquiry while the ICE officer verifies the subject's claim via the LESC, Sector, the officer's duty station or awaiting the alien's documents to be brought to the location, etc If the alien claims that he is in the United States unlawfully or that it has been proven that, 212(a) of the INA 237(a) of the INA, 8 USC 1304(@) would rarely ‘be accepted for prosecution Individuals that present ‘their documentation may be ‘queried as itis ‘commonplace that Individuals that have been deported or who have committed serious crimes retain their documents. ICE ACADEMY 7/18/2006 ALIEN ENCOUNTERS 6$$ rarricreant Gu ‘he has somehow violated his status and is now deportable, the subject may now, if not already done, be placed under arrest as probable cause exists. E. Arrest 1, Atthe time of the arrest, thie designated immigration officer shall, as soon'as it is ‘practical and safe to do so: i ‘Identify himself/herself as an immigration officer who is authorized to execute an arrest i, Inform the subject that they are under arrest and the reason for the arrést. And 2. Inthe case of an administrative arrest: i, im the case of an alien arrested without warrant under the authority of section 287(a)(2) of the INA, have the alien exatnined by another qualified officer. If satisfied that there is primae facie evidence that the alien is in the United States in violation of the INA, take appropriate action to properly process the alien for retnoval, ie,, Serve J-862 for 240 . case, Lefier for VWP violator, - 871 for reinstatement, etc. fi, Notify the alien of the reasons for his arrest, provide a list of free legal services and inform that he/she may be represented at no expense to the goverment and inform the alien that any statement made by the alien may be used against him/her. Within 48 hours of arrest, unless voluntary departure has been granted or in the event of an emergency or extraordinary 8 CFR 287.8(6)@2) 8CFR2873 ICE ACADEMY 7718/2006 ALIEN ENCOUNTERS 7rricrrnt Go situation, notify the alien of the ™ custody determination and ‘whether anotice to appear and ‘warrant of arrest will be issued. 3, In the case of a criminal arrest: i, advise the person of the ‘appropriate rights required by law af the time of the arrest or as soon after as practical, ensure that the rights Were given to the alien in a lenguage that he/she understands, ensure that the rights were understood and document the fact thet the person has been made aware of his/her rights. Contact an Assistant U.S. ‘Attomey to arrange for an initial appearance and without, unnecessary delay the person must be brought before @ United States Magistrate Judge, District Judge \ or ifnecessary a judicial officer / empowered in accordance with 18 USC 3041 charged to commit ‘persons charged with such crimes. 8 CER 287.8(6)(v) and (vi) ‘The AUSA must be ‘contacted prior to verity if the US Government will prosecute the case in ‘question. This action is called presenting a case for prosecution. If prosecution is declined by the AUSA the case will not be forwarded to the courts; otherwise, the initial appearance isthe next step. ICE ACADEMY 7718/2006 ALIEN ENCOUNTERSarian Gum m su ¢Y REVI )UESTIONS A, What are the three types of LEO-public encounters? 2. What is the primary question asked in order to escertain a person’s citizenship? 3. What is the main purpose in questioning an alien? 4, What are the two categories of removable aliens? Explain the difference. 5. What are the first two things that an officer must do when placing an alien under arrest, as soon ai it is safe and practical to do 80? ICE ACADEMY ALIEN ENCOUNTERS 7/18/2006 9