U.S. Department of JusticeImmigration and Naturalization Service

HQOPS 50/18.7.2

Office of the Executive Associate Commissioner 425 I Street NWWashington. DC 20536

JUN I 3 2001

MEMORANDUM FOR REGIONAL DIRECTORS

FROM: //Michael A. PearsonI Executive Associate Commissioner

Office of Field Operations

SUBJECT: District and Law Enforcement Support Center (LESC) Custody Decision andDetainer Responsibilities and a Revised LESC Enhanced Response Protocol

It has come to my attention that there is some confusion in the field about the role of theLaw Enforcement Support Center (LESC) as it relates to custody decisions and placing ofdetainers. The LESC and the field each have specific responsibilities.

Law Enforcement Support Center:

*

The LESC will make positive hit confirmation responses to NCIC Wanted Person File(WPF) or Deported Felon File (DFF) queries 24 hours a day via the National Law EnforcementTelecommunications System (NLETS) to the Law Enforcement Agencies (LEAs) and to thelocal Immigration and Naturalization Service (INS) office having jurisdiction via telephone. TheLESC will respond to live law enforcement queries received after normal business hours anddetermine the custody status of the suspect alien.

Where the alien is positively identified as a WPF or DFF, the LESC will contact the dutyofficer having responsibility for this mission as established by the field office. The duty officerwill be provided the alien's criminal history, immigration status, and the LEA contact point.After the duty officer has made a custody decision, if requested, the LESC will lodge a detainerto the LEA on behalf of the duty officer. The LESC is responsible for making a positiveidentification and for notifying the field office.

Memorandum for Regional Directors Page 2Subject: District and Law Enforcement Support Center (LESC) Custody Decision

and Detainer Responsibilities and a Revised LESC Enhanced ResponseProtocol

Where the alien is believed to be an Aggravated Felon, Prior Deport, OutstandingWarrant of Deportation, a case a LESC Special Agent deems of merit, and is not a WPF or DFF,the LESC will contact the duty officer having responsibility for this mission as established by thefield office. The duty officer will be provided the alien's criminal history as provided by theLaw Enforcement Agency (LEA), immigration status as found in INS databases, and the LEAcontact point. After the duty officer has made a custody decision, if requested, the LESC willlodge a detainer to the LEA on behalf of the duty officer.

Field Offices:

Where the alien is believed to be an Aggravated felon, Prior Deport, Outstanding Warrantof Deportation, and/or another case a LESC Special Agent deems of merit, the field office isresponsible for contacting the LEA and making a positive identification.

In all cases, after contact by the LESC, it is the duty officer's responsibility to make acustody decision, contact the LEA to confirm custody status, file a detainer, process forprosecution or removal, and arrange for pickup.

The duty officer may request the LESC to lodge a detainer to the LEA on behalf of theduty officer. However, in all instances, the designated duty officer has sole responsibility fordetermining when a detainer (1-247) will be lodged and for any responsibility thereafter.

Recurring requirements:

• Field offices were recently requested to provide a list of contact numbers on the LESC'sEnhanced Response Protocol (ERP) worksheet. The Enhanced Response Protocol has beenrevised and simplified. Field components are requested to update and forward a copy of theattached ERP Contact sheet to the LESC during the 4lh week of every month.

In order to ensure that the LESC can reach the appropriate duty officer, the field officesare requested to identify which unit, Investigations or Detention and Removals, will haveresponsibility and respond to calls from the LESC for each case type.

In addition, each district is requested to provide the LESC with a map of their jurisdictionshowing the counties for which each office is responsible. A list of offices and the counties overwhich they have jurisdiction is also requested. If this varies between Investigations andDetention and Removals, a map and list for each will be required. Whenever jurisdictionchanges and this list is updated, a copy should be forwarded to the LESC.

Memorandum for Regional DirectorsSubject: District and Law Enforcement Support Center (LESC) Custody Decision

and Detainer Responsibilities and a Revised LESC Enhanced ResponseProtocol

Page 3

A copy of this memo and the attached LESC Enhanced Response Protocol should beinserted in Appendix N, Procedures and Field Responsibilities for Enhanced Response in theNCIC Deported Felon and Wanted Person Files manual you recently received.

Attachment

Appendix N: Procedures and Field Responsibilities forEnhanced Response

LESC Enhanced Response Protocol

In order for the Law Enforcement Support Center (LESC) to provide Immigration andNaturalization Service (INS/Service) field offices with assistance in the identification anddetention of criminal aliens encountered by Law Enforcement Agencies (LEAs) afternormal business hours, it is necessary to identify the field office units and duty officersassigned to specific missions.

A. POLICY

Detention, prosecution and removal of aggravated felons previouslydeported/removed from the United States is one of the Service's highest priorities.

INS Districts will pick up and detain Aggravated Felons in accordance with nationaldetention policy.

Detention/custody decisions are the responsibility of the District Director or theirdesignated duty officer.

B. LESC

The LESC will make positive hit confirmation on NCIC Wanted Person File (WPF) orDeported Felon File (OFF) queries and will respond 24 hours a day via the NationalLaw Enforcement Telecommunications,«System (NLETS) to the LEA and the localINS office having jurisdiction.

The LESC will respond to live law enforcement queries received after normalbusiness hours and determine the custody status of the suspect alien.

Where the alien is positively identified as a WPF or DFF, the LESC will contact theduty officer having responsibility for this mission as established by the field office.The duty officer will be provided the alien's criminal history, immigration status, andthe LEA contact point. After the duty officer has made a custody decision, ifrequested, the LESC will lodge a detainer to the LEA on behalf of the duty officer.The LESC is responsible for making a positive identification and for notifying the fieldoffice.

Where the alien is believed to be an Aggravated Felon, Prior Deport, OutstandingWarrant of Deportation, a case a LESC Special Agent deems of merit, and is not aWPF or OFF, the LESC will contact the duty officer having responsibility for thismission as established by the field office. The duty officer will be provided thealien's criminal history as provided by the Law Enforcement Agency (LEA),immigration status as found in INS databases, and the LEA contact point.

06/12/01 Appendix N-1 Replaces Version 2/2/01

C. Field Offices:

The field office will identify which unit, Investigations or Detention and Removals, willhave responsibility and respond to calls from the LESC.

The field office will provide an initial list of contact numbers. The field componentwill update and forward that list to the LESC during the 4th week of'every month.

Where the alien is believed to be an Aggravated felon, Prior Deport. OutstandingWarrant of Deportation, and/or another case a LESC Special Agent deems of merit,the field office is responsible for contacting the LEA and making a positiveidentification.

During Normal Business Hours, after receipt of an Immigration Alien Response(IAR), the field component is responsible for contacting the LEA to confirm custodystatus, authorize detention, and process for prosecution or removal.

After Normal Business Hours, the duty officer may request the LESC to lodge adetainer with the LEA on behalf of the District. However, in all instances, thedesignated duty officer has sole responsibility for determining when a detainer (I-247) will be lodged and is responsible for any follow-up thereafter.

06/12/01 Appendix N-2 Replaces Version 2/2/01

LESC ENHANCED RESPONSE PROTOCOL CONTACT SHEET

District: Office: Roster for Month of:

Activity/Mission Unit AssignedWanted Person Files (WPF)Deported Felon Files (OFF)Aggravated FelonPrior Deport (Non OFF) or Outstanding Warrant of Deportation/Removal (Non WPF)Other Aliens Encountered by Law Enforcement Agencies

InvestigationsInvestigations - GeneralDay Time Numbers

SSAs - General Day Time Numbers

After Hours Duty Agent

After Hours SSA

Telephone Number (Not Voice Mail)

Fax Number

Telephone Number (Not Voice Mail)

Telephone Number

Pager Number

Cell Phone Number

Telephone Number

Pager Number

Cell Phone Number

Detention and RemovalsDetention & Removals-GeneralDay Time Numbers

SDOs - General Day Time Numbers

After Hours Duty Officer

After Hours SDO

Telephone Number (Not Voice Mail)

Fax Number

Telephone Number (Not Voice Mail)

Telephone Number

Pager Number

Cell Phone Number

Telephone Number

Pager Number

Cell Phone Number

Duty Roster - If no response within 20 minutes, contact the following:Investigations S/A Contact # Detention & Removals D/O Contact #

Submitted by:

06/12/01

Telephone #:

Appendix N-3 Replaces Version 2/2/01

of tlje <Deputn ^ttornen (general

HHashtiigtun, Jl.C. 20530

January 25, 2002

MEMORANDUM FOR

FROM:

SUBJECT:

A.

COMMISSIONERIMMIGRATION AND NATURALIZATION SERVICE

DIRECTORFEDERAL BUREAU OF INVESTIGATION

DIRECTORUNITED STATES MARSHALS SERVICE

UNITED STATES ATTORNEYS

THE DEPUTY ATTORNEY GENERAL

Guidance for Absconder Apprehension Initiative

Introduction

This memorandum is directed to those Department of Justice agencies that will be primarilyresponsible for implementing the Absconder Apprehension Initiative ("the Initiative"). Theobjective of this Initiative is to locate, apprehend, interview and deport a group of alien fugitivesknown as "absconders." These absconders are aliens who, though subject to a final order ofremoval, have failed to surrender for removal or to otherwise comply with the order. TheImmigration and Naturalization Service ("INS") has determined that there are approximately314,000 such individuals.

While the INS will ultimately undertake to deport all 314,000 from the United States, thereare several thousand among that group who come from countries in which there has been Al Qaedaterrorist presence or activity. We want to focus our initial efforts on these "priority absconders,"as we believe that some of them have information that could assist our campaign against terrorism.Among these priority absconders is a group of fewer than a thousand, many of whom appear to beconvicted felons, who will constitute the first list of absconders we will ask you to investigate.

The purpose of this memorandum is to explain the process for apprehending andinterviewing the priority absconders. That process will involve the following steps: (1) entry of theabsconders into the National Crime Information Center database ("NCIC") by the INS; (2)assignment of the absconders by judicial district, based on the most current address information;(3) transmission of the relevant portions of each absconder's INS file to the INS Field Office in theassigned district; (4) assignment of the absconder fugitive investigations to apprehension teams

absconders has been entered as a subject or target of any other investigation. If there is a matchfor any absconder in the PENTTBOM database or the other FBI databases, the FTTTF will removethat absconder from the list for this Initiative. This filtering process will help to ensure that the listof absconders does not include individuals who are subjects of active terrorism investigations.

2. Entry of the Absconders into NCIC

The FTTTF will transmit the finalized list of priority absconders to the INS HeadquartersInvestigations Division, where agents will obtain and examine the absconders' INS AdministrativeFiles ("A-Files"). Agents will confirm that each A-file contains documentation reflecting that theabsconder had received notice that he was to be deported or, for those absconders who failed toappear at their deportation hearings, that he would be deported if he so failed to appear. Afterconfirming that the absconder was on notice and that the deportation warrant remains valid, theagents at the Investigations Division will transmit the absconders' A-Files to the INS LawEnforcement Support Center in Burlington, Vermont for entry of the absconders' names into NCIC.At the same time, the list of absconders assigned to each district will be distributed to the INS andFBI Field Offices and to the United States Attorney's Office in each district.

3. Transmission of Documents from the Absconders' A-Files

The INS will create a "fugitive folder" for each absconder on the list. These folders willcontain duplicates of relevant documents from the absconder's original A-File. INS Headquarterswill then transmit the fugitive folder for each absconder to the INS Field Office in the judicialdistrict of the absconder's last known address. If no last known address information exists, thefugitive folder will be sent to the district of the office of origin for the alien's deportationproceeding.

4. District Coordination Meeting

Each INS and FBI Field Office will appoint an Initiative Coordinator who will beresponsible for overseeing his or her agency's involvement in the Initiative in that district. Priorto receipt of the fugitive folders, those Coordinators will meet with the United States Attorney'sAnti-Terrorism Coordinator to discuss plans for implementation of the Initiative. At thosemeetings, the three Coordinators should: (1) make arrangements for consultation among themselvesthroughout the apprehension process; (2) determine how to staff each of the "apprehension teams,"consistent with the guidance below; (3) decide who will check the list of absconders against localand/or state criminal databases; (4) discuss how to handle fugitive investigations that extend outsidethe district; and (5) decide any other logistical issues relating to timely implementation of thisInitiative.

5. Assignment of Absconder Cases to the Apprehension Teams

Upon receipt of the absconder fugitive folders, the INS Coordinator must contact his or her

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consisting of INS, Federal Bureau of Investigation ("FBI") and other federal agents and, whereappropriate, members of the Anti-Terrorism Task Forces ("ATTFs"); (5) apprehension of theabsconders; (6) interviews of the absconders by the apprehension teams; (7) entry of the results ofthe interviews into the database; and (8) prosecution or removal of the absconders.

While there are aspects of this Initiative that are similar to the Interview Project that wasrecently conducted by the ATTFs, I want to make clear that this is a very different undertaking.The Interview Project was directed at individuals who were not suspected of involvement incriminal activity, and investigators' contacts with the individuals were entirely consensual. ThisInitiative, by contrast, is directed at persons who have violated the law by remaining in the countryafter issuance of a deportation order and, in some cases, by committing other criminal offenses.Unlike the subjects of the Interview Project, therefore, these absconders are to be apprehended andtreated as criminal suspects, and they are to be afforded all standard procedural rights andconstitutional protections. In addition, while the Department and certain United States Attorneys'Offices intentionally publicized the Interview Project, this Initiative will not entail any officialnotice to either the public or the absconders. It would be counterproductive, and potentiallydangerous, to provide the absconders with official warning that agents and officers will be seekingto locate and capture them.

This Initiative will require a sustained and vigorous effort by a number of federal lawenforcement agencies. As the agency tasked with enforcement of the immigration laws, the INSwill be the lead investigative agency in all phases of the Initiative. The United States Attorneys willbe responsible for coordinating the assignment of ATTF members to the apprehension teams,ensuring that the results of interviews of captured absconflers are entered into the database, andhandling any prosecutions arising out of this Initiative. The FBI Field Offices and their JointTerrorism Task Forces ("JTTFs") will actively participate in the apprehension effort, and they willbe responsible for assessing each arrested absconder to determine whether the FBI has an interestin that absconder as a criminal suspect or as a source of information. Finally, it is expected that theUnited States Marshals Service ("USMS"), with its vast experience in capturing federal fugitives,will play a significant role in the apprehension effort.

B. The Process

1. Creation of the List of Absconders

The Foreign Terrorist Tracking Task Force ("FTTTF") drew the names of the priorityabsconders from the INS' Depprtable Alien Control System ("DACS"). In order to finalize the list,the FTTTF is currently completing the following tasks: (1) running the absconders on the listthrough public source databases to determine a last known address in the United States; (2) usingthe last known address information to designate an investigating district for each absconder; (3)cross-checking the entire list against the PENTTBOM investigation database to determine whetherany of these absconders has previously been identified as having a connection to that investigation;and (4) cross-checking the entire list against the FBI's other databases to determine if any of the

counterparts at the FBI and the United States Attorney's Office. The three Coordinators shouldthen jointly decide how to staff the apprehension teams. The composition of the apprehension teamassigned to each absconder will vary from district to district, depending upon agency staffing, thenumber of open absconder cases in the district, and the Coordinators' judgment about theappropriate manner of making assignments. If the INS and FBI in a particular district lack themanpower to conduct the fugitive investigations and apprehensions in a timely manner ~ or if theiragents are occupied with other investigations — the United States Attorney will solicit assistancefrom the members of the Anti-Terrorism Task Force in that district.

The apprehension teams will each be provided with copies of the fugitive folder and anyrelevant background material for each absconder, a copy of the interview questions and anyoperational instructions developed by the Coordinators.

6. Apprehension of the Absconders

Every absconder who is located will be apprehended and taken into custody. The legal basisfor that custody may differ depending on the law enforcement members on the apprehension team.If INS is represented on the apprehension team, the absconder can be arrested pursuant to the INS'authority under 8 U.S.C. § 1357 to arrest individuals on the basis of the civil warrant of deportationor removal. Because only INS agents have that clear authority, apprehension teams that do notinclude INS agents may not arrest absconders solely on the basis of the civil warrant. Instead, theycan arrest absconders on the basis of probable cause that the absconder has committed the federalfelony violation of Failure to Depart under 8 U.S.C. § 1253 v The probable cause that the absconderhas committed that offense would be based on the existence of a final deportation order and theabsconder"s presence on American soil.

7. Interviewing the Absconders

When an absconder is arrested, the arresting officers or agents will interview him about hisknowledge of terrorist activity. The absconder should be advised of his rights under Miranda v.Arizona prior to the interview, and the interview should proceed only if he waives those rights.

The interview should follow the list of questions that will be provided to all Anti-TerrorismCoordinators for distribution to the apprehension teams. This list of questions will be similar to thetopics covered in the Interview Project. Following any interview, the investigators conducting theinterview must provide the written results to the Anti-Terrorism Coordinator in the United StatesAttorney's Office, who will ensure that the information is entered into the Computerized ReportingSystem that was developed and used in the Interview Project.

Investigators conducting interviews should feel free to use all appropriate means ofencouraging absconders to cooperate, including reference to any reward money that is being offeredand reference to the availability of an "S Visa" under the Responsible Cooperators Program foralien informants. Investigators should fully explain these inducements, but should be careful not

be taken before the nearest federal magistrate judge without unnecessary delay. In those instanceswhere he was arrested by the INS on the civil warrant, the absconder need only be presented whenand if criminal charges are filed. If the decision is not to prosecute, the absconder will be deportedin accordance with standard INS procedures.

11. Deportation of the Absconders

Absent an affirmative notification from the Anti-Terrorism Coordinator or the FBICoordinator of the desire to undertake further investigative or prosecutive action against theabsconder, the INS will make every effort to remove the absconder from the country as quickly aspossible.

12. Absconder Investigations Outside the Initial Investigating District

It will often become necessary to pursue leads for an absconder outside of the initialinvestigating district. As lead agency, it will be the responsibility of the INS to determine how bestto conduct that investigation. In those instances where there are only isolated leads outside thedistrict, or where the leads are in a nearby district, the INS Coordinator may determine that it ismore efficient for the original apprehension team to pursue those leads. In those instances wherethe apprehension team determines that the absconder has moved to a distant district, the INSCoordinator would probably transfer the case to the INS Field Office in that district. In decidingwhether to shift the investigation to another district, the INS Coordinator should always consultwith and consider the views of the apprehension team members who are assigned to thatinvestigation. Also, whenever the INS Coordinator decides to transfer an investigation to anotherdistrict, he or she must communicate with INS headquarters, so that the fugitive folder may be re-assigned, and with the Anti-Terrorism Coordinator and the FBI Coordinator, so that they can alerttheir counterparts in the other district.

13. Tracking of Absconder Cases

The results of any interview with an absconder will be provided to the Anti-TerrorismCoordinator in each district, who will ensure that the results are entered into the ComputerizedReporting System. The Anti-Terrorism Coordinator will provide the Executive Office for UnitedStates Attorneys regular reports on the number of absconders apprehended and interviewed in eachdistrict and the status of any prosecutions arising from this Initiative. In addition, the INS will beresponsible for tracking each absconder's case following apprehension, and providing my officewith regular reports on the number and timing of those removed under this Initiative.

C. Legal Issues

I. Authority of Law Enforcement Officers to Effect Arrests

There is no question about the legal authority of federal agents to participate in arrestingthese absconders, as the United States Code specifically authorizes agents of the FBI and deputies

of the USMS to make warrantless arrests for federal violations where probable cause exists. Inmany districts, however, I expect that state and local law enforcement members of the ATTF willalso participate in this effort. Their legal authority is less clear, as some states and municipalitiesplace certain restrictions on the extent to which their officers can be involved in enforcement of theimmigration laws. The INS has researched this issue on a state-by-state basis, and the Director ofthe Executive Office of United States Attorneys (EOUSA) will arrange a conference call with thefifty State Attorneys General to discuss this issue. The INS research will be shared with the Anti-Terrorism Coordinator for each district.

2. Consular Notification

In connection with the arrest of these absconders, the United States has certain obligationsunder the Vienna Convention on Consular Relations (VCCR). Under the VCCR, every foreignnational arrested or detained within the United States must be informed that consular officials ofhis/her country of nationality may be notified of the detention. If the foreign national "so requests,"or if the detainee is a national of a "mandatory notification" country, the appropriate consularofficials are entitled to be notified and to have access to their incarcerated nationals. The INSCoordinator in each district will be responsible for making consular notification, in accordance withexisting INS guidelines.

D. Implementation Deadlines

This Initiative is to be implemented by taking the following steps within the designateddeadlines:

1. The FTTTF will finalize the list of priority absconders on or before January 25,2002.

2. The INS, the FBI and EOUSA will send to their offices in each district the initial listof priority absconders assigned to that district on or before January 28, 2002.

3. The Director of EOUSA, members of my staff and the Anti-Terrorism Coordinatorswill hold a conference call concerning the Initiative on January 29, 2002.

4. The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each districtwill meet to discuss implementation of this Initiative in their district on or beforeJanuary 31,2002.

5. The INS Law Enforcement Support Center in Burlington, Vermont will have thefirst group of priority absconders entered into NCIC, and their fugitive folders willbe distributed to the appropriate districts on or before February 1, 2002.

6. The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each districtwill assign apprehension teams for all absconders on their list and distribute thefugitive folders and interview questions to those apprehension teams on or beforeFebruary 11,2002.

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U.S. Department of JusticeImmigration and Naturalization Service

HQOPS50/11.5-P

Office of the Executive Associate Commissioner 4251 Street NWWashington, DC 20536

JAN 28 2002

MEMORANDUM FOR REGION

FROM: JearsonExecutive Associate CommissionerOffice of Field Operations

SUBJECT: Field Guidance: Absconder Apprehension Initiative

This memorandum is directed to Immigration and Naturalization Service (INS) regionaland field offices primarily responsible for implementing the Absconder Apprehension Initiativeannounced in the Deputy Attorney General's directive of January 25, 2002.

The purpose of the Absconder Apprehension Initiative (Initiative) is to locate, apprehendand interview aliens with unexecuted orders of removal. These cases include those aliens whohave failed to surrender for removal or to comply with a removal order. The INS recentlydetermined that there are approximately 314,000 individuals believed to be in the United Stateswho have unexecuted orders of removal. The INS will enter these cases into the National CrimeInformation Center (NCIC) database and arrest and remove these violators where feasible perCommissioner directive.

The initial phase of the Absconder Apprehension Initiative will target several thousandmale absconders from countries in which the Intelligence Community indicates Al-Qaedaterrorist presence or activity. This subset of the overall number of absconders is of specialinterest in continued efforts to investigate the attacks of September 11th and prevent futureterrorism. It is believed that this group of aliens includes individuals with information that couldassist in the United States campaign against terrorism. Accordingly, significant resources aregoing to be focused in an effort to apprehend and interview the individuals in this group. DistrictDirectors are expected to place the highest priority on these nationally designated, Headquartersreportable investigations, utilizing Investigations and Detention and Removal (D&R) officers asnecessary for the Investigations Program controlled initiative. If additional resource needs areidentified, District Directors should communicate immediately with the Headquarters National

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Memorandum for Regional Directors Page 2Subject: Field Guidance: Absconder Apprehension Initiative

Security Unit (HQNSU) as existing, experienced D&R Fugitive Operations Teams may beavailable to assist with these efforts.

The purpose of this guidance is to implement a process for apprehending andinterviewing this subset of absconders. Phase I of the Absconder Apprehension Initiative willrequire a sustained and vigorous effort by a number of federal law enforcement agencies. Asstated in the attached Deputy Attorney General directive, the INS is the lead agency for theenforcement of immigration law. As such, the INS will be the lead investigative agency in allphases of this operation. The INS will begin the operation by focusing on a group ofapproximately 700-750 absconders; many believed to be convicted felons. The operation willcontinue as additional cases from the overall group are referred to INS offices for apprehensionand interview. It is essential that District Directors coordinate investigative activity with localAnti-Terrorism Task Forces (ATTFs) to ensure the assignment of multi-agency apprehensionand interview teams under the leadership of the INS Investigations Program where necessary.Prompt decisions regarding potential prosecutions arising from the Initiative, includingprosecutions for violation of 8 U.S.C. § 1253, "Failure to Depart," will be the responsibility oflocal United States Attorneys.

The following INS Field Guidance augments the guidance detailed in the attachedDeputy Attorney General directive. Please note the upcoming deadlines indicated in thedirective. In anticipation of the need for open communication between HQNSU and regionaland field personnel regarding this guidance, HQNSU will convene teleconferences with eachregion to include participation by the Assistant Regional Director for Investigations and theRegional Joint Terrorism Task Force (JTTF) Coordinator. Details regarding the dates and timesof these individual teleconferences are forthcoming. The HQNSU designated point of contactfor the Initiative is Louis F. Nardi. Mr. Nardi can be reached at 202-307-2757.

Procedures

1. Preparation of Target Folders

The targeted list of absconders produced by the Foreign Terrorist Tracking Task Forcehas been forwarded to the HQNSU for review, assignment and tracking. All Alien Files (A-Files) will be requested by HQNSU through the Headquarters Office of Records Management.Upon receipt of an original A-file, HQNSU will create a scanned electronic copy. HQNSU willreview each A-File to determine if the case will be referred to the Headquarters Office ofIntelligence (HQINT) for preparation of investigative Master Target Folders. Master TargetFolders will include the results of various agency and commercial database checks, to ensure thatleads sent to the field include the most current information available. Concurrently, the LawEnforcement Support Center (LESC) will complete Service database checks to determine the

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Memorandum for Regional Directors Page 3Subject: Field Guidance: Absconder Apprehension Initiative

absconder's amenability to removal. Additionally, the LESC will be responsible for entering thecase into the National Crime Information Center (NCIC) database and maintaining custody ofthe original A-File until the absconder is apprehended. Daily, HQNSU will electronically verifythe mailing and receipt of original A-Files between Headquarters and the LESC.

2. Assignment of Target Folders

After the Master Target Folders are completed by HQINT, they will be forwarded toHQNSU for assignment to INS field offices. Prior to assignment, HQNSU will review theMaster Target Folders, determine the control office location, and assign those cases with viable,workable leads. Field copies of Master Target Folders, herein referred to as Fugitive Folders,will be sent via overnight delivery directly to District Offices for assignment based onabsconder's last known address (LKA) or the district in which removal proceedings wereinitiated. HQNSU will notify Regional Office JTTF Coordinators via cc:Mail of the casesassigned to Field offices under their respective jurisdictions.

The field office is responsible for immediately notifying HQNSU, the Regional JTTFCoordinator, and the ATTF Coordinator at the local United States Attorney's Office when theFugitive Folder has been received. This notification can be done via cc:Mail to HQNSU ataddress NSUAAI@usdoj.gov. The Regional Offices will also verify receipt of the target foldersin the field and advise HQNSU. It is anticipated that the assigned field office will complete theassigned absconder investigation(s) within 30 days of receipt. If additional time is required tocomplete the investigation, the field office is responsible for requesting an extension fromHQNSU. The Regional JTTF Coordinator must concur with the request for additional time.

Three Significant Incident Reports (SIRs) will be utilized for the duration of theInitiative. Templates for each of these SIRs are provided with this memorandum for field officeuse. An Investigative Status SIR must be completed by the assigned field office in allinstances. If the investigation discloses that the targeted absconder is residing/working inanother jurisdiction or all leads have been exhausted and an apprehension has not occurred,immediate notification must be made to HQNSU and the Regional JTTF Coordinator via anInvestigative Status SIR. This SIR will be sent via facsimile to HQNSU at 202-305-0833. AllFugitive Folders will be returned to HQNSU along with an Investigative Status SIR uponcompletion of investigative activity. INS Field offices will not transfer Fugitive Folders directlyto other offices. HQNSU will create a new Fugitive Folder with the relating Investigative StatusSIR and forward it to the appropriate field office. In those instances where there are onlyisolated leads outside the district, or where the leads are in a nearby district, the field office maydetermine that it is more efficient to pursue those leads itself and not seek reassignment. In those

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Memorandum for Regional Directors Page 4Subject: Field Guidance: Absconder Apprehension Initiative

cases, intradistrict cooperation should be exercised as dictated by standing INS policies andprocedures. If the investigation does not result in the apprehension of the identified absconder,HQNSU will retain the Fugitive Folder for a period of 90 days from the date on which theInvestigative Status SIR relaying the inability to locate is received by HQNSU. After 90 days,the Master Target Folder will be resubmitted to HQINT for a second round of agency andcommercial database checks for subsequent reassignment to the field, if warranted.

Pursuant to the Deputy Attorney General's directive, INS and Federal Bureau ofInvestigation (FBI) points of contact (POCs) must be established for this initiative. Furthermore,District Offices should also coordinate with the United States Marshals Service in cases that posea significant security risk. Also, every INS District Office must be prepared to respond on a 24-hour basis in the event a state or local law enforcement agency encounters a targeted absconder.In such instances, the LESC will confirm the existence of the INS "want" and immediately notifythe field office with jurisdiction over the particular case.

3. Apprehension of Absconders/HQ Notification

All absconder apprehensions will be immediately reported to HQNSU via facsimile at202-305-0833 utilizing the Investigative Status SIR. Although it is anticipated that the majorityof arrests will occur with INS team members present, the INS POC will be immediately notifiedof the apprehension of an absconder by the ATTF Coordinator, FBI POC, or other ATTF teammember in the event that INS is not represented. INS will take custody of and process theindividual for either civil or criminal immigration-related offenses as soon as possible, unless theindividual faces criminal prosecution for other than immigration-related offenses. The INS fieldoffice assuming custody of the arrested alien will contact the LESC and request the original A-File via express delivery. Please see the attached memorandum dated June 13, 2001 detailing"District and LESC Custody Decision and Detainer Responsibilities and a Revised LESCEnhanced Response Protocol."

When INS agents encounter alien(s) believed to be in the United States in violation oflaw collateral to the arrest of an absconder, they should exercise sound judgment in determiningwhether circumstances require immediate arrest and detention. Generally, due to Servicewideresource implications, those arrests should be limited to aliens that possess information thatcould assist in the US campaign against terrorism. In instances in which aliens are apprehendedother than those included in the Alien Absconder Initiative, the alien's name, A number, INScharge, and custody status must be reported to HQNSU via the Investigative Status SIR.

After an arrest is made, the United States Attorney must decide whether to proceed withprosecution for a violation of 8 U.S.C. § 1253 or other applicable criminal statute. Additionally,

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Memorandum for Regional Directors Page 5Subject: Field Guidance: Absconder Apprehension Initiative

the FBI must determine whether the absconder has any ties to terrorism that would justify furthercontact with the absconder by the FBI. If there is a basis for further investigation of theabsconder, the local FBI officials will immediately notify the Service POC. Thesedeterminations will generally be made within 72 hours of INS assuming custody of theabsconder. The field office will notify HQNSU no later than 72 hours of arrest of the absconderof the final United States Attorney and FBI determinations. The notification shall be made viafacsimile utilizing the 3rd Agency Notification SIR. The amount of time available to the FBI toconduct additional interviews and/or investigation will depend, to a great extent, on the status ofproposed removal arrangements. If criminal prosecution is authorized, it is imperative that an I-247 Service Detainer be lodged against the absconder. Furthermore, case agents should workclosely with the Assistant United States Attorney to coordinate any federal detention hearingwith an emphasis that the subject remains in custody.

4. Interviewing Absconders/ Preparation of Reports of Investigation

In addition to the guidance provided in the Deputy Attorney General's memorandum,absconders will be photographed and fingerprinted. Likewise, copies of all evidentiary materials(i.e., address books, copies of passports, pocket trash) and all Service-related documentationgenerated from the apprehension and interview will be forwarded to HQNSU with the completedReport of Investigation (ROI).

Field offices should immediately ensure that they have transmitted copies of all of thefollowing documents in each such case directly to HQNSU: Criminal Complaint/Indictment,Criminal Warrant, Criminal Search Warrant (as applicable), Affidavits filed in support of theabove, Investigative reports surrounding the charge(s), photograph(s), and any other relevantdata or information relating to the alien. Upon receipt of the original A-File from the LESC, theFugitive Folder and ROI will be returned to the HQNSU via overnight mail to HQNSU/AAI, 425I Street NW, Room 5122, Washington, DC 20536. This material will be provided to HQINT forinput in the Criminal Investigative Reporting System (CIRS), further analysis, and possibleadditional lead generation. Many of these targeted absconders have not been in contact with INSpersonnel in several years. Therefore, it is imperative that INS personnel thoroughly documentthe de-briefing of the absconder, including prior residences, contacts, and associations in theUnited States.

Investigators conducting interviews should use all appropriate means of encouragingabsconders to cooperate, including reference to any reward money that is being offered and theavailability of "S" visa status under the Responsible Cooperation Program for alien informants.Other forms of incentives such as Voluntary Departure, Stays of Removal, work authorizationand monetary rewards are available and should be considered. These can be extremely useful

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Memorandum for Regional Directors Page 6Subject: Field Guidance: Absconder Apprehension Initiative

tools because they are immediately available and can be approved at the local level. Investigatorsconducting interviews should be cautioned against making any promises regarding immigrationbenefits to absconders. Only the Service, in consultation with the Department of Justice, maymake such decisions. If investigators encounter instances in which the potential for TemporaryProtected Status (TPS) or other benefits arise, District Counsel should be consulted foradvisement regarding how to proceed.

5. Removal of Absconders/HQ Notification

It is imperative that the Fugitive Folders be tracked through completion of the case.Therefore, it is the responsibility of the Investigations Program at the assigned field office tofollow up on the removal status of any and all absconders placed in INS custody.Communication between Investigations and Detention and Removal personnel regarding thecustody status of the absconder must be sustained from arrest through removal and conveyedtimely. Every effort must be made to locate and secure the travel documents of any alienapprehended given the difficulties the Service has in obtaining such documents from thecountries of those nationalities targeted during this initiative. Once the absconder has beenremoved from the United States, the field office will immediately report the removal to HQNSUvia facsimile at 202-305-0833 utilizing the Notification of Removal SIR.

6. Additional Guidance

District Directors will ensure that these apprehension and interview efforts are supported,to include providing Service officers to locations where they can immediately respond torequests from state and local officers involved in the interviews in the event that any violation ofthe immigration law is suspected. For G-23 monthly reporting purposes, affected field officeswill utilize line 516.4, HQINV Project, for administrative cases and line 511.6, HQINV Project,for absconders with previous criminal convictions.

Please ensure that this memorandum, with all attachments, is promptly distributed tofield offices, consistent with its marking as a Limited Official Use/Law Enforcement Sensitivedocument. It is important that officers engaging in joint interviews pursuant to the directivecarefully familiarize themselves with it. HQNSU expects the initial group of A-Files will beentered into NCIC and the first group of Fugitive Folders transmitted to INS agents and UnitedStates ATTF members by no later than January 31, 2002.

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Memorandum for Regional Directors Page 7Subject: Field Guidance: Absconder Apprehension Initiative

Attachments:Attorney General's memorandum with associated guidanceMemorandum of June 13, 2001; District and LESC Custody Decision and DetainerResponsibilities and a Revised LESC Enhanced Response ProtocolOperational Guidance: Enforcement Operations at Certain LocationsOperational Guidance: Detention Standards and VisitationThree SIR TemplatesFour Absconder Apprehension Initiative Flowcharts

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U.S. Department of Justice

Executive Office for United States AttorneysOffice of the Director

Main Justice Building, Room 2244A950 Pennsylvania Avenue, N. W.Washington. D.C. 20530

(202) 514-2121

MEMORANDUM - Sent via Electronic Mail

DATE: January 28, 2002

TO: ALL UNITED STATES ATTORNEYSALL FIRST ASSISTANT UNITED STATES ATTORNEYSALL CRIMINAL CHIEFSALL ANTI-TERRORISM COORDINATORS

FROM: Kenneth L. WainsteinDirector

SUBJECT: Guidance for Absconder Apprehension Initiative

Please find attached a guidance memorandum from the DeputyAttorney General regarding a new project, the AbsconderApprehension Initiative. As explained in the memorandum, thisInitiative will involve the apprehending and interviewing of agroup of alien fugitives known as "absconders." While the INSwill be the lead investigative agency in this Initiative, theUnited States Attorneys will play a significant role. You willbe responsible for, among other things, coordinating theassignment of ATTF members to apprehension teams, ensuring thatthe results of interviews of captured absconders are entered into'the database, and handling any prosecutions arising out of thisInitiative.

We will have a conference call for all Anti-TerrorismCoordinators on Tuesday, January 29 at two o'clock p.m., EasternStandard Time, to discuss the Initiative. In order to access theconference call, you should dial (202) 353-0879 and providepasscode 7841.

If you have any questions or concerns that you would like todiscuss prior to Tuesday's conference call, feel free to call meat (202) 514-2121.

Attachment

cc: All United States Attorneys' Secretaries

JUL. 12. 2 0 0 2 8 : 0 7 A M NO. 9 9 9 1U.S. Department of Justice

Executive Office For United Slates Attorneys

Main Justice BuOtUng, Boom 2244A950 Pennsylvania Avenue fWWashington D.C, 20S30-OOOI

(202) 514-2121FAX(202)616-227B

FACSIMILE TRANSMISSIONCOVER SHEET

TO:

TELEPHONE:

Kris Kobach

FAX: 5-9687

FROM: Ken Wainstein

ORGANIZATION: Executive Office For United States Attorneys

TELEPHONE: VOICE: (202) 514-2121 FAX: (202) 616-ZZ78

DATE: July 12, 2002

NUMBER OF PAGES (EXCLUDING COVER SHEET): 2,

CONTENTS: Absconder Apprehension Initiative Memo

NOTE: IT you do not receive the total number of pages indicated, please call the sending individual listedabove,

The information contained hi this transmission to the property of the United States, attorney-client privileged andexempt from disclosure under applicable lav, It is intended only for the use of the Individual or entity named above. IT thereader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copyingof this communication is strictly prohibited. If you have received this communication in error, please notify the sendingoffice immediately via collect telephone call, and return the original message to us at the above address via United SutesMall. Thank you.

OAG014-0058

Jl/L. 1 2 . 2 0 0 2 - 8:07AMw usao OC/T hNO. 9991 HP. 2

US. Department of Justice

United States AttorneySouthern District of New York

United States AttorneyEastern District of New York

Mailing Addraat One & AnJrr* 't Plazaflew York, Hew York 10007

Brooklyn. New York 11201

July 3 , 2002

Bon. Larry ThompsonDeputy Attorney GeneralUnited State? Department of JusticeMain Justice Building950 Pennsylvania Avenue, N>w,Washington, DC 20530

Re: Absconder Apprehension Initiative

Dear Deputy Attorney General Thompsons

In January 2002, we received your memorandum outliningthe objectives of the Absconder Apprehension Initiative (WA\I"),with its emphasis on arresting and deporting "priorityabsconders" who might have information relevant to the campaignagainst terrorism. Our offices, together with the Immigrationand Naturalization Service (*INS"> and the Federal Bureau ofInvestigation (*FBI*) , have been endeavoring to complete theproject. We ara anxious to do so effectively and in a timelymanner, especially given the overwhelming importance of the A&l'sprime objective. Severe personnel shortages here in New York,however, are undermining our ability to meet the project's goals.

At the inception of the AAI, approximately 5,000priority absaonders were identified nationwide. These priorityabseondere, like the subjects of Round I and Round II of the DOJInterview Project, are not geographically dispersed equally amongthe 50 states. Rather, a large percentage of them are located inthe New York region. Thus, a significant portion of the workfalls on our districts.

To date, approximately 1,100 eases have been assignedto the New York District of the INS, nearly twenty percent of thenationwide total. The INS 'a New York District includes thaEastern District of New York, the Southern District of New Yorkand a small portion, of the Northern District of New York.

OAG014-0059

JUL. 12. 2 0 0 2 " 8:08AM*' ' Lt>m uc/r r>NO. 9 9 9 1

Currently, the apprehension, portion of the New York AAIproject is being staffed with 12 IUS agents, 7 detectives, and 2state troopers. With thip limited staffing it will take at least12 months to complete the project. The delays inherent inprocessing the large number of AAI subjects further compound theproblem, making it more difficult to find and apprehendabseondere who have become aware of the existence of the AAIproject and taken steps to avoid arrest. Moreover, nan- INSpersonnel, while helpful in. staffing apprehension teams, mustwork under IMS oversight because they do nor. have the authorityto arrest persons for immigration violations. Accordingly, theresources the INS can contribute to the AAI project are crucialto its success •

After careful analysis, we are convinced that, in orderto complete the AAI project within a reasonable time frame, theINS personnel dedicated to the initiative should be increased byat least 13 agents to a total of 25 agents. In addition, INSshould seek to augment those resources by requesting assistancefrom other agencies to contribute a total of 25 detectives, statetroopers and deputy marshals.

We believe that it is necessary to seek this assistancefrom the INS from outside the New York district. The men andwomen of the New York district have been working diligently on ahost of projects, but the office is grossly understaffed for theneeds of this area. The local INS office has an authorizedstaff of approximately 250 positions. However, the nuniber ofemployees currently available to address all districtresponsibilities is less than a third of that total. Whenvacancies, supervision, support staff and specialized positions(such as OCDETF, JTTF, and the Institutional Removal Program) arededucted, there are approximately BO Special Agents to fulfillpre-existing program responsibilities and also tackle anincreasing number of post -September 11th initiatives. Simplypuc, INS resources in the New York district are not sufficient tocarry out the important work assigned to that office. We havebeen advised that an official in your office has asked the INS todirect additional reeoiirces to the New York District but theresults of that inquiry are uncertain. For that reason, we feelcompelled to submit this extraordinary r ague at for outaideassistance. • "

OAG014-0060

J U l . 12. 2002 : 8 :08ANf UBPO oc/r /^0_ 9 9 9 , Pp

We are deeply- cbmniitted to the AAI project, but we areconcerned that the New York District 'e heavy caseload and lack ofpersonnel, coupled with the staggering number of AAI subjects inour two districts, will render completion of. the project in a .timely manner virtually impossible. For these reasons, we arerequesting your assistance in directing additional INS regionalor national resources towards completion of the AAI project.

Very truly yours,

y'ALAN VINEGRADUnited States Attorney United States AttorneyEastern District of New York southern District of New York

O AG014-0061

U.S. Department of JusticeImmigration and Naturalization Service

HQCOM50/H.I

Office of the Commissioner 4251 Street NWWashington. DC 20536

MEMORANDUM FOR THE ATTORNEY GENERAL

THROUGH: THE DEPUTY ATTORNEY GENERAL

James W. Ziglsb^A^sS^-Commissioner V (J\n andJNaturaliMion Service

FROM:

SUBJECT: Entry of Alien Absconders in the National Crime Information Center Database

In the Absconder Apprehension Initiative (AAI), the Immigration and NaturalizationService (INS or Service) has dedicated significant personnel resources and collected tens ofthousands of immigration files from around the country to begin entering records of aliens whohave not complied with final orders of removal into the Wanted Person File of the NationalCrime Information Center (NCIC) database. Review of these files prior to entry has uncovered avariety of legal and operational issues that have a significant impact on the number of recordsthat are being entered. One of the issues affecting a substantial number of cases was whether asigned registered mail receipt, U.S. Postal Service Form PS-3811, is required to prove that thealien was on notice of the removal order or the demand that the alien surrender. Service practicein recent years has required that there be a signed PS-3811 in the file evidencing receipt of the"run letter" (INS Form 1-166) prior to entry of the case into NCIC. Pursuant to recentdiscussions of this issue with Stuart Levey and others on your staff, we are no longer viewing theregistered mail receipt as a requirement, which should greatly increase the number of cases beingentered.'

I wanted to ensure, however, ihat you are apprised of some of the issues that presentthemselves regarding the ability of state and local law enforcement officials to effect arrests

1 The initial months of the second phase of the AAI have shown a 95% rejection rate due to various A-file deficiencies.Of those, 38% do not have (he Forms I-166 or PS-3811. Thus, although eliminating the requirement for the PS-3811 receipt willsubstantially raise the number of cases entered, the rate is still likely to remain below 50%. Even if the "amenable toprosecution" standard were eliminated entirely, it it estimated that approximately 40% of files do not have adequate identification(fingerprints, recent photographs, and biographical information) to allow for NCIC entry.

EXS001-0065

Memorandum for the Attorney General Page 2Subject: Entry of Alien Absconders into NCIC

based on these entries. Foremost is the question of what authority state and local lawenforcement officers have to effect arrests in these cases, and the INS has examined variousalternative theories.

One theory is that state and locals would make such arrests based on their criminal arrestauthority. Under this theory, probable cause to arrest for violation of the rarely-used 8 U.S.C. §1253(a) exists any time an alien with a final order of removal is encountered in the UnitedStates by a law enforcement official and learns of a Service record in NCIC.3 However, thestatute requires that the alien acted willfully in failing to depart, to present himself or herself forremoval, or to cooperate in obtaining travel documents. Proving a willful violation wouldrequire proof that the alien was duly notified of the order or obligation to present himself orherself for removal -- problematic due to flaws in ENS's address update and mail filing systems.Thus, a certain unknown percentage of cases we would be entering into NCIC would not actuallybe prosecutable due to notice issues. In addition to undercutting probable cause, this fact willweaken confidence of state and local authorities in the integrity of NCIC records entered by theService. This lack of confidence will be exacerbated by concerns about pretextual arrests if stateand local authorities find they are making arrests for which no one is prosecuted. Most stateauthorities do not believe they have authority to arrest for civil immigration violations, based inpart on Department of Justice statements on the issue in recent decades4. Unless the March 11,2002 Office of Legal Counsel (OLC) opinion regarding the inherent authority of state and locallaw enforcement officials to arrest for civil immigration violations is made public, such concernsmay lead many states to decline to act on Service NCIC records.

The second theory we have also explored is whether the Service could, through use of adetainer lodged upon confirmation of the NCIC "hit," effect a Service arrest. When a localpolice officer encounters someone in a traffic stop and discovers a Service record when runningan NCIC check, the local agency contacts the Service's Law Enforcement Support Center

2 It is not clear whether the decision that a PS-3811 is not required constitutes in fact a deviation from the "amenableto prosecution" standard. As the potential grounds for prosecution all have a willfulness element, some basis forprobable cause as to willfulness - and thus some basis for believing the alien was on notice of his or heradministratively final order - is required It may be -that the mailing of the requisite document - either the Board ofImmigration Appeals' mailing of the final order, or die Service's mailing of the demand that the alien presenthimself or herself for removal - would be a sufficient basis for probable cause even in the absence of proof ofreceipt. The view of the Criminal Division and the Executive Office for United States Attorneys on this and othercriminal law issues (including statute of limitations and "continuing violation" issues) is needed.

3 While peace officers in most states are authorized under state law to arrest for federal felony violations, this is notuniversally true. In some states (e.g., Virginia and Florida) they cannot make such arrests, and in some states (e.g.,Massachusetts and New Jersey) the issue is not settled under state law. In January, the INS Office of GeneralCounsel provided the Deputy Attorney General's staff with a summary of the authority of peace officers to arrest forfederal crimes in each of the 50 states, and later in the spring this was supplemented with what little information -wasavailable on state law authority for peace officers to enforce federal civil violations.

4 See, e.g.. February 5,1996 opinion of OLC for Ala* Bersin finding that "[s]tate police lack recognized legalauthority to arrest or detain aliens solely for purposes of civil deportation proceedings, as opposed to criminalprosecution." This opinion is still found at the OLC website, www.usdqi.govfalc/19°6opiru'ons.ritm. See also.Opinion of the Nevada Attorney General No. 83-16, Nov. 23,1983,1983 WL 171453 (quoting 1978 Departmentguidelines that state and local officers should not detain aliens suspected of non-criminal immigration violations).

EXSO01-0066

Memorandum for the Attorney General Page 3Subject: Entry of Alien AbsceBtkrs into NCIC

(LESC) in Vermont. The officer at the LESC reviews the file and, upon determining that there isprobable cause to make the arrest, informs the state or local officer that the INS is effecting anarrest of the alien and requests, through use of a detainer, that the state or local law enforcementagency temporarily hold the aliea However, even if the Department releases the revised OLCopinion regarding state and local authority, OLC has recently informally opined that they do notsee authority for these remote arrests on administrative warrants. Thus, according to OLC, locallaw enforcement officials cannot hold an alien for INS to make the probable cause determinationunless authorized to do so under state law.

In sum, there is a substantial likelihood that many states will decline to respond to INSentries in NCIC, undercutting the effectiveness of the AAI, in the absence of either (1) adetermination that the Service can effect a remote arrest for which state and local agencies canserve as short-term custodial agents, (2) the release of the OLC opinion and each state'sexamination of its own officers' authority under state law to arrest for federal civil violations, or(3) maintaining strict adherence to an "amenable to prosecution" standard for NCIC entries.This latter alternative would mean a diminished number of files could be entered, could havepossible ramifications for future initiatives to place immigration violators into NCIC, and wouldnot resolve the concerns of a number of states where authority to arrest for federal crimes is notrecognized. In contrast, the first alternative, if feasible, would have the most immediate andpositive impact, as it would apply irrespective of state law constraints on arrest authority andthereby minimize each state's concerns about authority and liability.

EXSO01-0067

Department of JusticeEXECUTIVE SECRETARIAT

CONTROL SHEET

DATE OF DOCUMENT: 01725/2002DATE RECEIVED: 09/04/2002

WORKFLOW ID: 216940DUE DATE:

FROM:

TO:

MAIL TYPE:

SUBJECT:

DATE ASSIGNED09/04/2002

INFO COMPONENT:

COMMENTS:

FILE CODE:

EXECSEC POC:

The Honorable Larry D. ThompsonDeputy Attorney GeneralU.S. Department of Justice

Washington, DC 20530

INS, FBI, USMS & USAs

General

Memo providing guidance for the absconder apprehension initiative.

ACTION COMPONENT & ACTION REQUESTEDControlled for search purposes only.

Memo prepared and dispatched by EOUSA. ODAG provided a copy to ES forDAG files.

DAG FILE: DAG MEMORANDA General

Kim Tolson: 202-514-8588

EXSO01-0068

(f)ffirr nf tttr ^rputu Aftnnmj

•ffl.-islimgtntt, D.C. 211330

- January 25, 2002

MEMORANDUM FOR COMMISSIONERIMMIGRATION AND NATURALIZATION SERVICE

DIRECTORFEDERAL BUREAU OF INVESTIGATION

DIRECTORUNITED STATES MARSHALS SERVICE

UNITED STATES ATTORNEYS

FROM: THE DEPUTY ATTORNEY GENERAL

SUBJECT: Guidance for Absconder Apprehension Initiative

A. Introduction

This memorandum is directed to those Department of Justice agencies that will be primarilyresponsible for implementing the Absconder Apprehension Initiative ("the Initiative"). Theobjective of this Initiative is to locate, apprehend, interview and deport a group of alien fugitivesknown as "absconders." These absconders are aliens who. though subject to a final order ofremoval, have failed to surrender for removal or to otherwise comply with the order. TheImmigration and Naturalization Service ("INS") has determined that there are approximately314,000 such individuals.

While the INS will ultimately undertake to deport all 314,000 from the United States, thereare several thousand among that group who come from countries in which there has been AJ Qaedaterrorist presence or activity. We want to focus our initial efforts on these "priority absconders,"as we believe that some of them have information that could assist our campaign against terrorism.Among these priority absconders is a group of fewH-jh^in^ipusand, many of whom appear to beconvicted felons, who will constitute the first list of jbscpndiers we will ask you to investigate.

The purpose of this memorandum is to explain the process for apprehending andinterviewing the priority absconders. That process will involve the following steps: (1) entry of theabsconders into the National Crime Information Center database ("NCIC") by the INS; (2)assignment of the absconders by judicial district, based on the most current address information:(3) transmission of the relevant portions of each absconder's IXS file to the INS Field Office in theassigned district; (4) assignment of the absconder fugitive investigations to apprehension teams

EXS001-0069

consisting of INS, Federal Bureau of Investigation ("FBI") and other federal agents and, whereappropriate, members of the Anti-Terrorism Task Forces ("ATTFs"); (5) apprehension of theabsconders; (6) interviews of the absconders by the apprehension teams; (7) entry of the results ofthe interviews into the database; and (8) prosecution or removal of the absconders.

While there are aspects of this Initiative that are similar to the Interview Project that wasrecently conducted by the ATTFs, I want to make clear that this is a very different undertaking.The Interview Project was directed at individuals who were not suspected of involvement incriminal activity, and investigators' contacts with the individuals were entirely consensual. ThisInitiative, by contrast, is directed at persons who have violated the law by remaining in the countryafter issuance of a deportation order and, in some cases, by committing other criminal offenses.Unlike the subjects of the Interview Project, therefore, these absconders are to be apprehended andtreated as criminal suspects, and they are to be afforded all standard procedural rights andconstitutional protections. In addition, while the Department and certain United States Attorneys'Offices intentionally publicized the Interview Project, this Initiative will not entail any officialnotice to either the public or the absconders. It would be counterproductive, and potentiallydangerous, to provide the absconders with official warning that agents and officers will be seekingto locate and capture them.

This Initiative will require a sustained and vigorous effort by a number of federal lawenforcement agencies. As the agency tasked with enforcement of the immigration laws, the INSwill be the lead investigative agency in all phases of the Initiative. The United States Attorneys willbe responsible for coordinating the assignment of ATTF members to the apprehension teams,ensuring that the results of interviews of captured absconders are entered into the database, andhandling any prosecutions arising out of this Initiative. The FBI Field Offices and their JointTerrorism Task Forces ("JTTFs") will actively participate in the apprehension effort, and they willbe responsible for assessing each arrested absconder to determine whether the FBI has an interestin that absconder as a criminal suspect or as a source of information. Finally, it is expected that theUnited States Marshals Service ("USMS")i with its vast experience in capturing federal fugitives,will play a significant role in the apprehension effort.

B. The Process

1. Creation of the List of Absconders

The Foreign Terrorist Tracking Task Force ("FTTTF") drew the names of the priorityabsconders from the INS' Deportable Alien Control System ("DACS"). In order to finalize the list,the Fn it is currently completing the following tasks: (1) running the absconders on the listthrough public source databases to determine a last known address in the United States; (2) usingthe last known address information to designate an investigating district for each absconder; (3)cross-checking the entire list against the PENTTBOM investigation database to determine whetherany of these absconders has previously been identified as having a connection to that investigation;and (4) cross-checking the entire list against the FBI's other databases to determine if any of the

EXSO01-0070

absconders has been entered as a subject or target of any other investigation. If there is a matchfor any absconder in the PENTTBOM database or the other FBI databases, the FTTTF will removethat absconder from the list for this Initiative. This filtering process will help to ensure that the listof absconders does not include individuals who are subjects of active terrorism investigations.

2. Entry of the Absconders into NCIC

The FTTTF will transmit the finalized list of priority absconders to the INS HeadquartersInvestigations Division, where agents will obtain and examine the absconders' INS AdministrativeFiles ("A-Files"). Agents will confirm that each A-file contains documentation reflecting that theabsconder had received notice that he was to be deported or, for those absconders who failed toappear at their deportation hearings, that he would be deported if he so failed to appear. Afterconfirming that the absconder was on notice and that the deportation warrant remains valid, theagents at the Investigations Division will transmit the absconders1 A-Files to the INS LawEnforcement Support Center in Burlington, Vermont for entry of the absconders' names into NCIC.At the same time, the list of absconders assigned to each district will be distributed to the INS andFBI Field Offices and to the United States Attorney's Office in each district. - -

3. Transmission of Documents from the Absconders' A-Files

The INS will create a "fugitive folder" for each absconder on the list. These folders willcontain duplicates of relevant documents from the absconder's original A-File. INS Headquarterswill then transmit the fugitive folder for each absconder to the INS Field Office in the judicialdistrict of the absconder's last known address. If no last known address information exists, thefugitive folder will be sent to the district of the office of origin for the alien's deportationproceeding.

4. District Coordination Meeting

Each INS and FBI Field Office will appoint an Initiative Coordinator who will beresponsible for overseeing his or her agency's involvement in the Initiative in that district. Priorto receipt of the fugitive folders, those Coordinators will meet with the United States Attorney'sAnti-Terrorism Coordinator to discuss plans for implementation of the Initiative. At thosemeetings, the three Coordinators should: (1) make arrangements for consultation among themselvesthroughout the apprehension process; (2) determine how to staff each of the "apprehension teams,"consistent with the guidance below; (3) decide who will check the list of absconders against localand/or state criminal databases; (4) discuss how to handle fugitive investi gations that extend outsidethe district; and (5) decide any other logistical issues relating to timely implementation of thisInitiative.

5. Assignment of Absconder Cases to the Apprehension Teams

Upon receipt of the absconder fugitive folders, the INS Coordinator must contact his or her

3

EXS001-0071

counterparts at the FBI and the United States Attorney's Office. The three Coordinators shouldthen jointly decide how to staff the apprehension teams. The composition of the apprehension teamassigned to each absconder will vary from district to district, depending upon agency staffing, thenumber of open absconder cases in the district, and the Coordinators' judgment about theappropriate manner of making assignments. If the INS and FBI in a particular district lack themanpower to conduct the fugitive investigations and apprehensions in a timely manner—or if theiragents are occupied with other investigations — the United States Attorney will solicit assistancefrom the members of the Anti-Terrorism Task Force in that district.

The apprehension teams will each be provided with copies of the fugitive folder and anyrelevant background material for each absconder, a copy of the interview questions and anyoperational instructions developed by the Coordinators.

6. Apprehension of the Absconders

Every absconder who is located will be apprehended and taken into custody. The legal basisfor that custody may differ depending on the law enforcement members on the apprehension team.If INS is represented on the apprehension team, the absconder can be arrested pursuant to the INS'authority under 8 U.S.C. §1357 to arrest individuals on the basis of the civil warrant of deportationor removal. Because only INS agents have that clear authority, apprehension teams that do notinclude INS agents may not arrest absconders solely on the basis of the civil warrant. Instead, theycan arrest absconders on the basis of probable cause that the absconder has committed the federalfelony violation of Failure to Depart under 8 U. S.C. § 1253. The probable cause that the absconderhas committed that offense would be based on the existence of a final deportation order and theabsconder's presence on American soil.

7. Interviewing the Absconders

When an absconder is arrested, the arresting officers or agents will interview him about hisknowledge of terrorist activity. The absconder should be advised of his rights under Miranda v.Arizona prior to the interview, and the interview should proceed only if he waives those rights.

The interview should follow the list of questions that will be provided to all Anti-TerrorismCoordinators for distribution to the apprehension teams. This list of questions will be similar to thetopics covered in the Interview Project. Following any interview, the investigators conducting theinterview must provide the written results to the Anti-Terrorism Coordinator in the United StatesAttorney's Office, who will ensure that the information is entered into the Computerized ReportingSystem that was developed and used in the Interview Project.

Investigators conducting intem'ews should feel free to use all appropriate means ofencouraging absconders to cooperate, including reference to any reward money that is being offeredand reference to the availability of an "S Visa" under the Responsible Cooperators Program foralien informants. Investigators should fully explain these inducements, but should be careful not

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to promise that they will be forthcoming in a particular case. Additional information about theResponsible Cooperators Program will be provided to the Anti-Terrorism Coordinators for furtherdissemination.

8. Custody of the Absconders

In those instances where an INS agent is not physically present at the time of an absconder'sarrest, the INS should be contacted immediately by the arresting investi gators, so that arrangementscan be made to take the absconder into INS custody. When an absconder is taken into custody, hewill usually be subject to prompt removal without further proceedings. In the ordinary case, theabsconder will be held until the INS can complete the processing of travel documents, at whichpoint he will be sent out of the country. If a particular absconder is to be the subject of furtherinvestigation or prosecution, the involved agencies will need to make quick decisions regardingthe basis for continued custody of the absconder.

9. FBI Assessment of the Absconders

At the time that an absconder is taken into INS custody, the INS Coordinator must notifythe FBI Coordinator of the arrest. Once notified; the FBI Coordinator must expeditiously reviewthe absconder's case and the results of his interview and determine whether it appears that theabsconder has any ties to or knowledge of terrorism that would justify further contact with theabsconder by the FBI. In reaching this determination, the FBI Coordinator must be mindful of theINS' responsibility to remove absconders from this country in an expeditious fashion. Given thatthe INS might be working under a restrictive time frame, the FBI Coordinator will often have tobase his or her determination on an oral report of the interview from the interviewing investigatorand/or the INS Coordinator without the benefit of a written report. The FBI Coordinator will thendetermine if there is reason to investigate the absconder further. If so, he or she must immediatelynotify the INS Coordinator and the United States Attorney's Anti-Terrorism Coordinator of theFBI's desire to conduct further investigation prior to deportation.

10. Prosecution of the Abscond era

At me time that an absconder is taken into INS custody, the INS Coordinator must alsonotify the Anti-Terrorism Coordinator of the arrest. The Anti-Terrorism Coordinator will thendecide whether to proceed with a prosecution for Failure to Depart under 8 U.S.C. § 1253, or toforgo prosecution and allow the absconder to be deported by the INS. In deciding whether thereis a law enforcement interest in pursuing a prosecution against a particular absconder, the UnitedStates Attorney's Office should consider whether the absconder has engaged in criminal conduct,aside from the immigration violation, during his stay in this country.

If the decision is to prosecute, the United States Attorney's Office will file charges andensure that the absconder is presented before a federal magistrate. In those instances where theabsconder was initially arrested on probable cause that he had violated 8 U.S.C. § 1253, he must

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be taken before the nearest federal magistrate judge without unnecessary delay. In those instanceswhere he was arrested by the INS on the civil warrant, the absconder need only be presented whenand if criminal charges are filed. If the decision is not to prosecute, the absconder will be deportedin accordance with standard INS procedures.

11. Deportation of the Absconders

Absent an affirmative notification from the Anti-Terrorism Coordinator or the FBICoordinator of the desire to undertake further investigative or prosecutive action against theabsconder, the INS will make every effort to remove the absconder from the country as quickly aspossible.

12. Absconder Investigations Outside the Initial Investigating District

It will often become necessary to pursue leads for an absconder outside of the initialinvestigating district. As lead agency, it will be the responsibility of the ENS to determine how bestto conduct that investigation. In those instances where there are only isolated leads outside thedistrict, or where the leads are in a nearby district, the INS Coordinator may determine that it ismore efficient for the original apprehension team to pursue those leads. In those instances wherethe apprehension team determines that the absconder has moved to a distant district, the INSCoordinator would probably transfer the case to the INS Field Office in that district. In decidingwhether to shift the investigation to another district, the INS Coordinator should always consultwith and consider the views of the apprehension team members who are assigned to thatinvestigation. Also, whenever the INS Coordinator decides to transfer an investigation to anotherdistrict, he or she must communicate with INS headquarters, so that the fugitive folder may be re-assigned, and with the Anti-Terrorism Coordinator and the FBI Coordinator, so that they can alerttheir counterparts in the other district.

13. Tracking o f Absconder Cases

The results of any interview with an absconder will be provided to the Anti-TerrorismCoordinator in each district, who will ensure that the results are entered into the ComputerizedReporting System. The Anti-Terrorism Coordinator will provide the Executive Office for UnitedStates Attorneys regular reports on the number of absconders apprehended and interviewed in eachdistrict and the status of any prosecutions arising from this Initiative. In addition, the INS will beresponsible for tracking each absconder's case following apprehension, and providing my officewith regular reports on the number and timing of those removed under this Initiative.

C. Legal Issues

1. Authority of Law Enforcement Officers to Effect Arrests

There is no question about the legal authority of federal agents to participate in arrestingthese absconders, as the United States Code specifically authorizes agents of the FBI and deputies

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of the USMS to make warrantless arrests for federal violations where probable cause exists. Inmany districts, however, I expect that state and local law enforcement members of the ATTF willalso participate in this effort. Their legal authority is less clear, as some states and municipalitiesplace certain restrictions on the extent to which their officers can be involved in enforcement of theimmigration laws. The INS has researched this issue on a state-by-state basis, and the Director ofthe Executive Office of United States Attorneys (EOUSA) will arrange a conference call with thefifty State Attorneys General to discuss this issue. The INS research will be shared with the Anti-Terrorism Coordinator for each district.

2. Consular Notification•*

In connection with the arrest of these absconders, the United States has certain obligationsunder the Vienna Convention on Consular Relations (VCCR). Under the VCCR, every foreignnational arrested or detained within the United States must be informed that consular officials ofhis/her country of nationality maybe notified of the detention. If the foreign national "so requests,"or if the detainee is a national of a "mandatory notification" country, the appropriate consularofficials are entitled to be notified and to have access to their incarcerated nationals. _ The INSCoordinator in each district will be responsible for making consular notification, in accordance withexisting INS guidelines.

D. Implementation Deadlines

This Initiative is to be implemented by taking the following steps within the designateddeadlines:

1. The FTTTF will finalize the list of priority absconders on or before January 25,2002.

2. The INS, the FBI and EOUSA will send to their offices in each district the initial listof priority absconders assigned to that district on or before January 28,2002.

3. The Director of EOUSA, members ofmy staff and the Anti-Terrorism Coordinatorswill hold a conference call concerning the Initiative on January 29,2002.

4. The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each districtwill meet to discuss implementation of this Initiative in their district on or beforeJanuary 31,2002.

5. The INS Law Enforcement Support Center in Burlington, Vermont will have thefirst group of priority absconders entered intoNCIC, and their fugitive folders willbe distributed to the appropriate districts on or before February 1, 2002.

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6. The Anti-Terrorism Coordinator and the INS and FBI Coordinators in each districtwill assign apprehension teams for all absconders on their list and distribute thefugitive folders and interview questions to those apprehension teams on or beforeFebruary 11, 2002.

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