ICE Academy - Workbook on Statutory Authority (Fall 2007)

8/14/2019 ICE Academy - Workbook on Statutory Authority (Fall 2007)

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WORKBOOK: Statutory AuthorityICE ACADEMYFall, 2007

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Lesson Plan Overview

Course STATUTORY AUTHORITY

Course Description Federal law enforcement officers can only act by virtue of legalauthority. This course provides an overview of laws that grant federallaw enforcement officers authority to take appropriate action to enforcethe Immigration and Nationality Act (INA).

Field PerformanceObjective

To be able to take appropriate actions and justify those actions byreferencing applicable authority when given hypothetical fieldsituations where the INA must be enforced.

Interim (Training)Performance Objectives

1. Define the term immigration officer.2. Identify the elements of an administrative removal.

3. Identify the sources from which immigration law is derived.4. Identify the types of authorities granted to immigration officers and

their basis in law.5. Identify the principal levels of encounter.6. Identify the policy regarding use of deadly force.

Instructional Methods Lecture, class discussion.

Time 4 Hours.

Training Aids PowerPoint.

Method of Evaluation Multiple-choice examination.

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Statutory Authority

INA Section:

235(a)(1) Definition of applicant for admission235(a)(2) Removal of stowaways by immigration officer upon inspection235(a)(3) Inspection of all applicants for admission by immigration officers235(a)(5) Statement under oath by applicant for admission concerning his admissibility235(b)(2) Detain alien for INA 240 removal proceedings

235(d)(1) Board and search any vessel, aircraft, railway car, or conveyance at a port-of-entry (POE)235(d)(2) Order detention and delivery of arriving aliens235(d)(3) Take oath and consider evidence from any person concerning the privilege

of any alien to enter, re-enter, transit, or reside in the United States (U.S.)235(d)(4) Subpoena attendance and testimony of witnesses, evidence, etc.

252(b) Revoke previously issued conditional permit to land

287(a)(1) Interrogate any alien without a warrant as to his right to be or remain in the U.S.287(a)(2) Administrative arrest of alien without warrant for violation of immigration laws287(a)(3) Board and search for aliens within reasonable distance from border/enter onto

private property within 25 miles from the U.S. border287(a)(4) Criminal arrest without warrant for any felony under Legacy INS jurisdiction287(a)(5) Arrest for felony under U.S. law287(b) Take oath and consider evidence from any person concerning the privilege

of any person to enter, re-enter, transit, or reside in the U.S.; criminal penalty for perjury287(c) Search person and personal effects of applicant for admission at POE

for evidence of inadmissibility287(e) Prohibition to enter onto farms or outdoor agricultural operations without

consent/warrant

Note : The discussion of the various sources of statutory authority in this workbook is notall-inclusive. For example, ICE Special Agents and Border Patrol both derive authoritiesfrom Title 19 of the United States Code, that are different and in many ways moreexpansive than the authorities that were formerly available for use by Legacy INS underTitle 8 of the United States Code. Creating the Department of Homeland Security (DHS)and consolidating the duties and responsibilities of Legacy Customs and Legacy INSyielded One Face Along the Border. Similarly, Legacy Customs officers also derivedauthorities from Title 8 of the United States Code that were formerly unavailable to them.There is now have a cadre of law enforcement officers along the borders and in theinterior of the U.S. who can look to multiple sources of authority to enforce the laws of theU.S.

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I. Definition of Officer

More than one section of the Immigration and Nationality Act (INA)grants authority to employees of DHS who have been designated asimmigration officers. Recognize that Customs and Border Protection(CBP) and Citizenship and Immigration Services (CIS) both havepersonnel that are also immigration officers by definition.

1. INA 101(a)(18) defines the term immigration officer as:

[A]ny employee or class of employees of the Service or of theUnited States designated by the Attorney General, individually or by regulation, to perform the functions of an immigration officer specified by Act or any section thereof.

2. The Secretary of Homeland Security has the ultimate authority todesignate assignments [See, INA 103]; however, this authority is oftendelegated to a district director, director of field operations, or officer-in-charge who will specify to each officer the nature of the job.

3. 8 CFR 103.1(b) defines the term immigration officer as:

[Including senior or supervisory officers of the below listedemployees]

Immigration officer, immigration inspector, immigration examiner,adjudications officer, Border Patrol agent, aircraft pilot, airplane

pilot, helicopter pilot, deportation officer, detention enforcement officer, detention officer, investigator, special agent, investigativeassistant, immigration enforcement agent, intelligence officer,intelligence agent, general attorney (except with respect to CBP,only to the extent that the attorney is performing any immigration

function), applications adjudicator, contact representative,legalization adjudicator, legalization officer, legalization assistant,

forensic document analyst, fingerprint specialist, immigrationinformation officer, immigration agent (investigations), asylumofficer, other officer or employee of the Department of Homeland Security or of the United States as designated by the Secretary of

Homeland Security as provided in 2.1 of this chapter. Any customs officer, as defined in 19 CFR 24.16, is hereby authorized to exercise the powers and duties of an immigration officer as specified by the Act and this chapter. [emphasis added]

[See, 8 CFR 287.5which discusses theexercise of power byimmigration officers.]

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II. INA 240 Removal Proceedings

1. Because much of the authority to be discussed involves theadministrative removal of unauthorized aliens, it is important to knowwhat a removal is, the purpose and function of an INA 240 removalproceeding, and the personnel involved in the removal process.

2. On September 30, 1996, President Clinton signed the IllegalImmigration Reform and Immigrant Responsibility Act of 1996(IIRIRA), which is one of the most extensive amendments to the INAsince 1952.

3. Prior to the enactment of IIRIRA, there were separate proceedingsdealing with either exclusion or deportation. IIRIRA created asingle proceeding known as a removal proceeding . In a removalproceeding, an alien can either be charged with a ground of inadmissibility under INA 212(a) or a ground of deportabilityunder INA 237(a) . This proceeding determines whether an alien maybe admitted to the U.S., or if the alien has already been admitted,whether he can be removed from the U.S.

4. An alien can be charged as inadmissible if he has never been admitted to the U.S. and/or a ground exists for denying entry at the time of thealiens application for admission.

5. An alien can be charged as deportable if he has been lawfullyadmitted to the U.S., but after admission , subsequently violates acondition of his lawful status.

6. The removal hearing is an administrative proceeding , which ispresided over by an immigration judge (IJ). The alien is referred to asthe respondent in an INA 240 Removal Proceeding

7. Burden of Proof in Immigration Court

a. If an alien appearing in immigration court has been admitted to theU.S., the alien is being charged as being deportable. The Governmenthas the burden of proof to prove by clear and convincing evidence thatthe alien is deportable as charged. Clear and convincing evidence is thelevel of proof that the Supreme Court, in Woodby, decided would apply toadministrative deportation proceedings. Congress subsequently codified this inImmigration and Nationality Act (INA). The Supreme Court has stated thatthe clear and convincing standard lies between a preponderance of the

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evidence and proof beyond a reasonable doubt. [See, Addington v. Texas, 441U.S. 418, 425 (1979). ICE does not define clear and convincing evidence.Whether the government has met their burden of proof, in immigration court,of establishing that an alien is deportable is a question of law and factdetermined by an immigration judge, subject to review in federal court.

Some examples of evidence that is used to establish clear and convincingevidence include but are not limited to: statements from the alien that theywere born in another country, foreign birth certificates, an aliens admissionsregarding foreign birth before the immigration judge when pleadings are takenin the case, and certified conviction records showing the alien was convicted of a crime that would render them removable under INA 212 and 237.

b. In the case of an alien appearing in immigration court who is anapplicant for admission at a POE, or who has been found present in theU.S. without inspection, the Government must first prove alienage; thenthe burden of proof shifts to the alien who must then prove clearly andbeyond a doubt that he or she is entitled to be admitted to the U.S. or isotherwise lawfully present in the U.S.

III. Personnel Involved with an INA 240 Removal Proceeding

1. 8 CFR 1.1(l) defines the term immigration judge as:

[a]n attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified toconduct specified classes of proceedings, including a hearing under section 240 of the Act. An immigration judge shall be subject to suchsupervision and shall perform such duties as the Attorney General shall

prescribe, but shall not be employed by the Immigration and Naturalization Service.

a. The IJ works for the Executive Office for Immigration Review(EOIR), which is a part of the U.S. Department of Justice. TheIJ exercises powers and duties in immigration proceedings andsuch other proceedings that the Attorney General assigns to the IJto conduct. [See, 8 CFR 1003.10]

b. The IJ is the presiding and deciding official in all removal

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proceedings conducted under INA 240.

c. Immigration judge makes only administrative decisions.Because the IJ is not involved in criminal proceedings, the IJcannot and does not impose penalties of incarceration for aliens.However, the IJ can review ICEs decision to hold an alien indetention, and make decisions concerning an aliens bond. An IJcan lower, raise, revoke, or leave a bond the same as a result of conducting a bond redetermination hearing for an alien. An IJsauthority to redetermine bond is contained in 8 CFR 1003.19.

d. An IJs responsibilities and duties during an INA 240 removalproceeding may include:

1. determining the removablity and/or availability of relief tothe respondent(s);

2. administering oaths;3. receiving evidence including prior (oral or written)

statements;4. questioning and examining the respondent and/or

witnesses;5. subpoenaing witnesses and evidence;6. reviewing all available evidence taken into the record.

e. The IJs decision will include a finding as to inadmissibility ordeportability and reasons for denying or granting any request orapplication for discretionary relief from removal made by thealien.

f. The IJ can certify a decision or an issue to the Board of Immigration Appeals (BIA) when a case involves a complex orunusual issue.

g. When an IJ issues an order in immigration court, both sides (theGovernment and the alien) are given the opportunity to acceptthe decision or reserve the right to file an appeal. If both sideswaive appeal and accept the IJs order, the order becomes finaland the case is complete. If appeal is reserved by one party or byboth, the appealing party has thirty (30) days from issuance of the IJs order to file a Notice of Appeal (NOA) with the BIA.

h. The BIA must receive the NOA within the 30-day period inorder to be authorized to review the decision made by the IJ.

Appendix A to thisworkbook contains aflow chart that showsthe path of an aliensimmigration casethrough the EOIRsystem.

Appendix B to thisworkbook is an EOIRfact sheet thatdiscusses the removalhearing process.

Appendix C to thisworkbook is an EOIRfact sheet thatdiscusses the topic of relief from removal.

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Until the BIA makes a decision upon the appeal, the order is notfinal.

2. Board of Immigration Appeals (BIA)

a. The BIA is a part of the EOIR, and thus is also a part of the U.S.Department of Justice.

b. The BIA reviews appeals from the IJ's decisions in INA 240removal proceedings or the immigration judges requests forcertification. Issues addressed by the BIA include custodyredetermination, inadmissibility, deportability and relief fromremoval.

c. Not all of the BIAs decisions are published to the public. Onlythe published BIA appellate administrative decisions are

bindingon aliens and DHS agencies responsible for enforcingimmigration laws nationwide.

d. The BIAs published decisions are binding on aliens and on allDHS officers and IJs unless modified or overruled by theAttorney General or a Federal court.

A published Boarddecision has precedential

effect even if it has beenreferred to the AttorneyGeneral for review unless and until modifiedor overruled by theAttorney General, theBoard, Congress, or aFederal court. [See, Matterof E-L-H-, 23 I&N Dec814 (BIA 2005)]

3. Government Counsel

a. Trial or general attorneys in field offices under the ICEOffice of the Principal Legal Advisor [OPLA] are known asassistant chief counsels. Their primary duty is to advocate onbehalf of the United States in immigration court and before theBIA. They also provide critical support to the U.S. AttorneyOffices on matters related to immigration law.

b. Assistant chief counsels duties in an INA 240 removalproceeding may include:

1. representing the Department of Homeland Securitysposition;

2. presenting evidence;3. conducting examinations of respondents and witnesses;4. analyzing all of the evidence in light of current legal

authority.

c. Assistant chief counsels can appeal the IJs decisions to the

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BIA. In doing so they are responsible for drafting and timelyfiling the NOA and any appellate briefs.

IV. Introduction to Authority

Authority is defined as the right, permission, or power to act legally thatcomes from a specific source. [See, Black's Law Dictionary (7th ed. 1999)]

Immigration Officers must be familiar with the various sources of authorityto perform their respective duties. It is extremely important that officersknow the limits of their powers and stay within those limits.

1. Sources of Authority

a. International Law

1. Each sovereign state, including the U.S., has the right toregulate, prohibit entry, and limit the stay of foreigners.

2. Each sovereign state has its own regulations on admittingand regulating foreigners to its country.

3. Sovereign states can enter into mutual agreements withother sovereign states on specific procedures or programsinvolving the subject of immigration law. For example, theU.S. has agreed to the following immigration programs:Visa Waiver Program (VWP), European Union (EU)and the North America Free Trade Agreement (NAFTA).

4. International Treaties are not binding upon the U.S., evenwhen the U.S. is a signatory to the treaty, unless the treatyis self-executing or Congress enacts supportinglegislation.

b. The United States Constitution

1. It, and its 27 Amendments, is the supreme law of theU.S.

2. The Constitution is flexible. Since its ratification theConstitution has grown with new amendments and ithas been constantly interpreted in Federal judicialdecisions. The U.S. Supreme Court has the finalauthority on cases and controversies concerning theConstitution.

3. Article 1, Section 8, Clause 3, of the Constitutionempowered Congress to regulate commerce withforeign nations.

Public international lawestablishes the frameworkand the criteria foridentifying states as theprincipal actors in theinternational legal system.As the existence of a statepresupposes control and

jurisdiction over territory,international law deals withthe acquisition of territory,state immunity and thelegal responsibility of statesin their conduct with eachother. International law issimilarly concerned with thetreatment of individualswithin state boundaries.There is thus acomprehensive regime

dealing with group rights,the treatment of aliens , therights of refugees ,international crimes ,nationality problems, andhuman rights generally. Itfurther includes theimportant functions of themaintenance ofinternational peace andsecurity, arms control, thepacific settlement ofdisputes and the regulationof the use of force ininternational relations.

Even when the law is notable to stop the outbreak ofwar, it has developedprinciples to govern theconduct of hostilities andthe treatment of prisonersInternational law is alsoused to govern issuesrelating to the global

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http://en.wikipedia.org/wiki/Stateshttp://en.wikipedia.org/wiki/Jurisdictionhttp://en.wikipedia.org/wiki/State_immunityhttp://en.wikipedia.org/wiki/Alien_%28law%29http://en.wikipedia.org/wiki/Refugeehttp://en.wikipedia.org/wiki/International_crimehttp://en.wikipedia.org/wiki/Nationalityhttp://en.wikipedia.org/wiki/Human_rightshttp://en.wikipedia.org/wiki/Use_of_forcehttp://en.wikipedia.org/wiki/Prisoners_of_warhttp://en.wikipedia.org/wiki/Prisoners_of_warhttp://en.wikipedia.org/wiki/Use_of_forcehttp://en.wikipedia.org/wiki/Human_rightshttp://en.wikipedia.org/wiki/Nationalityhttp://en.wikipedia.org/wiki/International_crimehttp://en.wikipedia.org/wiki/Refugeehttp://en.wikipedia.org/wiki/Alien_%28law%29http://en.wikipedia.org/wiki/State_immunityhttp://en.wikipedia.org/wiki/Jurisdictionhttp://en.wikipedia.org/wiki/States


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4. A federal law enforcement officers primary duty isto uphold the Constitution

The United States Constitution is the supreme law of the United States of America . It was adopted in its original form on September 17 , 1787 by theConstitutional Convention in Philadelphia , Pennsylvania , and later ratified by conventions in each state in the name of "the People." The Constitutionhas a central place in American law and political culture . The U.S.Constitution is argued by many to be the oldest written nationalconstitution, except possibly for San Marino 's Statutes of 1600 , whosestatus as a true constitution is disputed by scholars. The handwritten, or"engrossed", original document is on display at the National Archives inWashington, D.C. [http://en.wikipedia.org/wiki/United_States_Constitution]

The United States Constitution is the very backbone of American jurisprudence. Much like the human skeleton, the constitution is that keyelement that holds the body of law erect. Former Supreme Court JusticeWilliam Rehnquist contended that the framers of the constitution wiselyspoke in general language and left unto succeeding generations the task of applying that language to the changing environment in which thosegenerations would live. [Prof. Scott Schlimmer @http://www.personal.umich.edu/sschlimm/constitution.html ]

The constitution provided for the formation of the remaining parts of thebody by establishing a unique and enduring form of government. Itestablished the L egislative , Executive, and Judicial banches of government .Each are separate and distinct from one another in purpose and power.Separation of powers is a political doctrine under which the legislative ,executive and judicial branches of government are kept distinct, to preventabuse of power. This U.S. form of separation of powers is widely known as"checks and balances."[http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution]

environment, the globalcommons such asinternational waters andouter space , globalcommunications, and wortrade .

See,http://en.wikipedia.org/wik i/Public_international_law

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c. The Immigration and Nationality Act (INA)

1. Congress wrote the INA using authority granted to itfrom the Constitution. These laws are codified atTitle 8 of the United States Code.

2. The INA of 1952 has been amended several timeswith new Acts such as Immigration Reform andControl Act of 1986 ( IRCA ), Immigration Act of 1990 ( IMMACT ), and the Illegal ImmigrationReform and Immigrant Responsibility Act of 1996(IIRIRA ).

d. Title 8 of the Code of Federal Regulations (8 CFR)

1. Congress gave authority to the Secretary of Homeland Security (formerly the AttorneyGeneral) to elaborate upon and implement theINA in detail. Historically the Attorney Generaldelegated this duty to Legacy INS. Consequently,Legacy INS formulated most of the currentregulations. Today the Attorney General still haslimited authority over the regulations because hestill oversees EOIR. EOIR regulations are found inthe 1000s section of 8 CFR. The rest of 8 CFR isnow promulgated by DHS and the Secretary of DHS, and can involve information governing theactivities of ICE, CBP and CIS.

2. These regulations are binding on the public and onthe Government.

3. These regulations cannot contradict the INA.

Equally importantare the following:

DHS DelegationNumber 7030.1

DHS DelegationNumber 7030.2

ICE DelegationNumber 0001

OI/DROOrganizationalDelegation Orders

DHS/ICE Directives

and PolicyMemorandum

e. Decisions from the Attorney General and various courtsincluding the BIA, U.S. Circuit Court of Appeals and U.S.Supreme Court

1. The above sources publish decisions on casesinvolving complex or novel issues of immigrationlaw.

2. Published decisions can either be imperative orpersuasive authority depending on the source. DHS isbound by decisions from Federal courts, not statecourts.

2. Hierarchy of Authority

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a. Statutory Authority

1. Statutory authority is authority that is provided for bylaw and enacted in statute.

2. For example: INA 287(a)(1) states that [a]nyofficer or employee of the Service authorized underregulations prescribed by the Attorney General shallhave power without warrant . . . to interrogate anyalien or person believed to be an alien as to his rightto be or to remain in the United States.

b. Delegated Authority

1. Delegated authority is authority that is entrusted toanother.

2. A person who has the authority to act can delegatethat authority; however, that person retains overallresponsibility for the exercise of such authority andthe outcome, results, and consequences of thedelegatees actions.

3. For example: INA 235(a)(4) states that [a]n alienapplying for admission may, in the discretion of theAttorney General and at any time, be permitted towithdraw the application for admission and departimmediately from the United States.The Secretary of DHS has delegated this authority,and the Attorney General had delegated it, to certainImmigration Officers. Although the authority to actis delegated, the responsibility and ultimate liabilityfor permitting the alien to withdraw the applicationfor admission remains with the Secretary.

c. Implied Authority

a. Implied authority is the authority to act, although it isnot specifically stated in statute. For example, INA 287(a)(1) gives officers the authority to interrogatewithout a warrant any alien or person that is believedto be an alien about their right to be or remain in theU.S. There is no mention of an authority to stop thatalien. However, it is implied the officer must firststop that alien to interrogate that alien.Accordingly, the officer has the implied authority tostop and interrogate that alien in accordance with

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established Federal 4 th Amendment principles.

V. INA 235(a) Inspection

1. INA 235(a)(1)

(1) Aliens treated as applicants for admission. An alien present inthe United States who has not been admitted or who arrives in theUnited States (whether or not at a designated port of arrival and including an alien who is brought to the United States after havingbeen interdicted in international or United States waters) shall bedeemed for purposes of this chapter an applicant for admission.

a. The term applicant for admission includes aliens:

1. Arriving in the U.S.,2. Interdicted at sea,3. Who have entered without inspection.

b. Inspections of applicants for admission arriving in theU.S. or interdicted at sea have been delegated to CBPOfficers.

Historically, the B IA heldthat an alien who isinvoluntarily brought to theUnited States by agents of the United States should begiven a reasonableopportunity to depart priorto the institution of proceedings to deport thealien from the UnitedStates. [See, Matter of Badalamenti , 19 I&N Dec623, 626 (B1A 1988) and

Matter of Loulos , 16 I&NDec. 34 (BIA 1976)]

However, subsequent tothe issuance of this line of cases, Congress amendedthe Act with the passage of the Illegal ImmigrationReform and ImmigrantResponsibility Act of 1996, Pub. L. 104-208 ,110 Stat. 3009 (Sept. 30,1996) (IIRIRA).

Due to the amendmentsmade to the Act byIIRIRA, Matter of Badalamenti , supra , andMatter of Loulous , supraare no longer controllingprecedent in this matter.

2. INA 235(a)(2)

(2) Stowaways. An arriving alien who is a stowaway is not eligible

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to apply for admission or to be admitted and shall be ordered removed upon inspection by an immigration officer. Upon suchinspection if the alien indicates an intention to apply for asylumunder section 208 or a fear of persecution, the officer shall refer thealien for an interview under subsection (b)(1)(B) of this section. Astowaway may apply for asylum only if the stowaway is found tohave a credible fear of persecution under subsection (b)(1)(B) of thissection. In no case may a stowaway be considered an applicant for admission or eligible for a hearing under section 240.

a. INA 101(a)(49) defines the term stowaway as:

any alien who obtains transportation without the consent of theowner, charterer, master or person in command of any vessel or aircraft through concealment aboard such vessel or aircraft. A

passenger who boards with a valid ticket is not to be considered a stowaway.

b. An alien stowaway who wishes to apply for asylum or whoclaims to have a fear of persecution is referred for a credible fearinterview.

c. A stowaway who is ordered removed by an Immigration Officerunder the authority of this statute is usually directed to beremoved on the vessel or aircraft on which the alien arrived inthe U.S.

d. The owner of the vessel or aircraft that brought the stowaway tothe U.S. is generally required to pay for the costs of detainingand maintaining the alien until the alien physically departs theU.S.

3. INA 235(a)(3)

(3) Inspection. All aliens (including alien crewmen) who areapplicants for admission or otherwise seeking admission or readmission to or transit through the United States shall beinspected by immigration officers.

a. INA 235(a)(3) does not authorize the searching of an alienand/or the aliens personal effects at a POE; that authority isfound in INA 287(c).

b. Applications to lawfully enter the U.S. must be made in personto an immigration officer at a designated and open U.S. POE.

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[See, 8 CFR 235.1(a)]

c. CBP officers at POEs conduct examinations and inspections.The purpose of an examination is to establish citizenship andidentity. The purpose of an inspection is to establishadmissibility. This inspection may happen at the border or itsfunctional equivalent.

d. Because grounds of inadmissibility do not apply to U.S. citizens,they are examined only, and not inspected .

e. However, even U.S. citizens (USCs) must prove their citizenshipwhen seeking to enter the United States. If they fail to satisfythe officer that they are U.S. citizens, then they will be inspectedas aliens. Both 8 CFR 235.1(b) and 22 CFR Part 53 address theTravel Control requirements applicable to USCs.

f. One function of an officers inspection is to determine whetherthe alien has proper documentation. For example, those alienslawfully admitted for permanent residence (LPRs) mustsubmit all their documentation to an officer for inspection.

4. INA 235(a)(5)

(5) Statements. An applicant for admission may be required to stateunder oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seekingadmission to the United States, including the applicant's intended length of stay and whether the applicant intends to remain

permanently or become a United States citizen, and whether theapplicant is inadmissible.

a. INA 235(a)(5) grants immigration officers the authority totake a statement from an applicant for admission about hisadmissibility to the U.S. A USC is not an applicant foradmission once U.S. citizenship has been established. Thisauthority cannot be used when taking information under oathfrom a USC.

CLASSROOM EXERCISE

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VI. INA 235(b) Inspection of Applicants for Admission

1. INA 235(b)(2)

(2) Inspection of other aliens. Subject to subparagraphs (B)and (C) [I]n the case of an alien who is an applicant for

*The Act supports theconclusion that some crewmenare eligible for removalproceedings under section 240

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admission, if the examining immigration officer determinesthat an alien seeking admission is not clearly and beyond adoubt entitled to be admitted, the alien shall be detained for a proceeding under section 240.

a. INA 240 provides for a single proceeding in which an IJdetermines the inadmissibility (INA 212) or deportability (INA 237) of an alien.

b. The following aliens are not entitled to review by an IJ in anINA 240 removal proceeding:

(1) Crewmen inspected and issued an I-95 Conditional LandingPermit*;

(2) Aliens inadmissible under INA 212(a)(6)(C) [fraud,misrepresentation and false claim to US Citizenship] andINA 212(a)(7) [lack of valid and/or unexpired entrydocument(s) or other entry document(s) required by the INAat the time of an aliens entry into the U.S.];

(3) Stowaways, unless found present in the interior of the U.S.without admission or parole after inspection,**

(4) Aliens ordered removed under INA 235(c); and(5) Visa Waiver Program (VWP) applicants.

c. Any individual falling within the above listed categories insubparagraph b., which expresses an intention to file for asylumin the U. S. or who expresses a fear of persecution, is referred toan Asylum Officer (AO) for an interview. Aliens who are foundby the AO to have a credible fear of persecution are placed inAsylum Only proceedings before an IJ. The case is referred tothe IJ by way of a Form I-863, Notice of Referral to ImmigrationJudge.

d. The Government serves an alien who has been placed inproceedings under INA 240 with a charging document called aNotice to Appear (NTA), Form I-862. The NTA includes thecharge(s) against the alien, and the underlying factual allegationssupporting the charge(s), an advisement of his or her right tocounsel, and information on the date and time of the hearing.The practical effect of an alien appearing before an IJ with anNTA versus a Notice of Referral to Immigration Judge, is that hecan apply for several different forms of relief from removal,including asylum, cancellation of removal, adjustment of status,and voluntary departure.

of the Act. Significantly, section237(a) of the Act, 8 U.S.C. 1227(a) , specifically includescrewmen by stating, [a]nyalien (including an aliencrewman) in and admitted to theUnited States shall upon theorder of the Attorney General,

be removed if the alien is withinone or more of the followingclasses of deportable aliens.As an alien crewman can beremovable under section 237 of the Act, an alien crewmancharged with removabilityunder this section must beentitled to proceedings undersection 240 of the Act, as this isthe exclusive procedure todetermine if an alien isremovable. [e.g. IN RE:REHMAN SAIDUR 2005 WL 649059File: A79 733 663 [Philadelphia] February 02,2005, a case where an alien whowas clearly a crewman wasnevertheless admitted as a C-1alien in transit. In thisunpublished decision the BIAconcluded that the aliencrewman was entitled to a 240hearing.]

**A stowaway charge againstan alien under section212(a)(6)(d) is not properlybrought in a removalproceeding, but 212(a)(6)(d)charge might be [e.g. IN RE:RGHEORGHE OLAR 2003WL 23521847File: A71 498 772 [NewOrleans] November 5, 2003, acase where an alien who wasclearly a stowaway actuallyeluded inspection and illegallyentered the U.S. unbeknownstto immigration inspectors. Inthis unpublished decision theBIA concluded that onceapprehended the alienstowaway was entitled to a 240hearing.]

ICE.090410.000228
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VII. INA 235(d) Authority Relating to Inspections

1. INA 235(d)(1)

(1) Authority to search conveyances. Immigration officersare authorized to board and search any vessel, aircraft,railway car, or other conveyance or vehicle in which theybelieve aliens are being brought into the United States.

a. INA 235(d)(1) provides immigration officers the authority toboard and search conveyances at a POE. Additional authority tosearch for goods is delegated to immigration officers serving withinCustoms and Border Protection (CBP) through the customs lawsfound in Title 19 of the U.S. Code.

b. For the purposes of the exercise of this board and search authorityit is implied that an officer can stop a conveyance to search it.

c. When conveyances are arriving directly from a foreign territory, animmigration officer does not need probable cause. Under suchcircumstances only minimal suspicion that the conveyance maycontain aliens is needed to justify its boarding and searching.

A review of the Department of HomelaSecurity Bureau of

Immigration and Custo Enforcement Delegatio Number 0001, dated Ju6, 2003 clearly indicate

that ICE officers/agents [with appropriate re- delegation] may exercis the powers found in IN 235.

2. INA 235(d)(2)

(2) Authority to order detention and delivery of arriving aliens. Immigration officers are authorized to order anowner, agent, master, commanding officer, person in charge,

purser, or consignee of a vessel or aircraft bringing an alien(except an alien crewmember) to the United States (A) todetain the alien on the vessel or at the airport of arrival, and (B) to deliver the alien to an immigration officer for inspection or to a medical officer for examination.

a. Immigration officers can order the owner, or others listed in INA 235(d)(2), to hold their passenger(s) on board the vessel until anofficer arrives to conduct the inspection.

b. Immigration officers can order individuals who are suspected of having certain highly infectious/contagious diseases to be detaineduntil a U.S. public health officer can conduct a medical examinationon the individuals. Such diseases include Cholera, Diphtheria,Infectious Tuberculosis, Plague, Smallpox, Yellow Fever, andvarious viral hemorrhagic fevers such as Ebola. In the alternative,

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Immigration officers can order the owner, agent, master, or otherslisted in INA 235(d)(2) to present the suspected passengers to theU.S. Public Health Office for examination.

3. INA 235(d)(3)

(3) Administration of oath and consideration of evidence. The Attorney General and any immigration officer shall have

power to administer oaths and to take and consider evidenceof or from any person touching the privilege of any alien or

person he believes or suspects to be an alien to enter,reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to theenforcement of this chapter and the administration of theService.

a. INA 235(d)(3) gives immigration officers authority to take oathsfrom any person (not just an applicant for admission) about analiens privilege to enter, reenter, transit through or reside in theU.S. This oath can be taken from a USC who has information abouta particular aliens admissibility or deportability.

4. INA 235(d)(4)

(4) Subpoena authority. The Attorney General and anyimmigration officer shall have power to require by subpoena

the attendance and testimony of witnesses beforeimmigration officers and the production of books, papers,and documents relating to the privilege of any person toenter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to theenforcement of this chapter and the administration of theService, and to that end may invoke the aid of any court of the United States.

a. Under INA 235(d)(4) immigration officers have authority tosubpoena a persons attendance, testimony, or documents relating to

an aliens privilege to enter, reenter, reside in, or pass through theU.S. or relating to the enforcement of the INA.

CLASSROOM EXERCISE

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VIII. INA 287 Powers of immigration officers and employees

INA 287 relates almost exclusively to interior enforcement efforts, in otherwords, well beyond POEs. Although most of the authorities dealing witharriving aliens and POEs are found in INA 235, some are found in INA 287too.

1. INA 287(c)

(c) Search without warrant. Any officer or employee of theService authorized and designated under regulations prescribed bythe Attorney General, whether individually or as one of a class,shall have power to conduct a search, without warrant, of the

person, and of the personal effects in the possession of any person seeking admission to the United States , concerning whom suchofficer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this Act which would be disclosed by such search.

This search authoritydoes not apply toUSCs, as they are notseeking admission tothe U.S. and they arenot subject to groundsof inadmissibility.

a. KEY NOTE: Although this authority is found in INA 287, it isonly to be used at the border or its functional equivalent , andthen only to disclose grounds of inadmissibility . The U.S.Supreme Court in Almeida-Sanchez v. United States, 413 U.S.266 (1973) provided a few examples of functional equivalentsincluding searching at an established station near the border, at apoint marking the confluence of two or more roads that extendfrom the border, or a search of passengers and cargo of anairplane at an international airport where the plane had arrivedfrom a non-stop flight that originated in a foreign country.

There is no fixed distance in mileage from the border for thisborder search to occur, for example, the power can be used atany international airport when airlines arrive in the U.S. afternon-stop flights from foreign territory. The U.S. Supreme Courtfurther held in case United States v. Brignoni-Ponce, 422 U.S.873 (1975) that a border search under INA 287(c) can beconducted away from the actual border or at the functionalequivalent of the border only when certain conditions exist:

1. Reasonable certainty that the object of the search has justcrossed the border,

2. The search takes place at the first practical point after theborder is crossed, and

3. No time or opportunity for the object of the search to

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have changed materially since the time of the crossing.

To fulfill these three elements in other situations, constantsurveillance of the object in question may be necessary, toarticulate that there was no opportunity for the object to changematerially. The success of some enforcement operations requiresthe watch of a person (and/or personal effects) until a certainmeeting point or destination is reached.

b. An immigration officer does not need probable cause to conductthis search. The immigration officer must have reasonable causeto suspect that a ground of inadmissibility will exist or bedisclosed after searching a alien or an aliens personal effects.

c. This search can be conducted without a warrant.

d. Historically, Legacy Customs Inspectors were limited to theinspection of documents that related to the movement of goods,while Legacy Immigration Inspectors only had the authority of INA 287(c) to review any document that might be relevant tothe aliens purpose and intent to enter the U.S. Today the CBPOfficer at a POE benefits from both legacy authorities and thushas expansive search authority at the POE.

Search at the border of respondent's suitcasecarried by U.S. citizen

friend , where respondentwas not present, andseizure there from of respondent's Argentinepassport, occurring in thecourse of routine customs

border inspection does notexceed the Service'sauthority under section287(c) of the Immigrationand Nationality Act. [See, Matter of Bulos 15 I.& N. 645 (BIA 1976)]

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IX. Sections of the INA that deal with Inspection, Detention andRemoval of Crewmen

INA 235(a)(3) provides for inspection by immigration officers of allaliens including alien crewmen who are applicants for admission orotherwise seeking admission or readmission to or transit through the U.S.Since the formation of the Department of Homeland Security (DHS), suchinspection at ports-of-entry is within the exclusive purview andresponsibility of immigration officers serving within Customs and BorderProtection (CBP).

INA 235(d) authorizes such officers to carry out this inspection, to boardany vessel, aircraft, railway car, or other conveyance or vehicles, whichthey believe is bringing aliens into the U.S.

INA 252 specifically addresses crewmen and their conditional landingpermits (Form I-95). [See, 8 CFR 252.1(e)] While the regulations[8 CFR 252.2(a)] dating back to March 1997 indicate any immigrationofficer may exercise the authority of INA 252(b), subsequent to thedisestablishment of INS and the formation of DHS, the delegation of previous authorities resulted [to date] in CBP having the exclusive right toexercise authority under INA 252. Crewmen who were granted aconditional landing permit prior to April 1, 1997, and who failed to departare subject to removal proceedings under section 240 of the ACT. SinceApril 1, 1997, crewmen have been removable without a hearing [per of INA 252(b)] and the statutorily ineligible to have any decision regarding theirinspection or removal reviewed by an IJ in an INA 240 removalproceeding [See, 8 CFR 252.2(b)]. The decision of whether to issue thecrewmen a conditional landing permit or permission to leave the vessel oraircraft rests solely with the inspecting officer.

A review of theDepartment of Homeland SecurityBureau of Immigrationand CustomsEnforcementDelegation Number0001, dated June 6,2003 clearly indicatesthat at this time ICEdoes not haveauthority to exercisethe powers found inINA 252.

1. INA 252(b)

(b) Revocation; expenses of detention. Pursuant to regulations prescribed by the Attorney General, any immigration officer may, inhis discretion, if he determines that an alien is not a bona fidecrewman, or does not intend to depart on the vessel or aircraft whichbrought him, revoke the conditional permit to land which was granted such crewman under the provisions of subsection (a)(1) of thissection, take such crewman into custody, and require the master or commanding officer of the vessel or aircraft on which the crewmanarrived to receive and detain him on board such vessel or aircraft, if

practicable, and such crewman shall be removed from the United States at the expense of the transportation line which brought him tothe United States. Until such alien is so removed, any expenses of his

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detention shall be borne by such transportation company. Nothing inthis section shall be construed to require the procedure prescribed insection 240 of this Act to cases falling within the provisions of thissubsection.

a. After a crewman has been granted or denied a conditional landingpermit under INA 252(a), only an authorized immigration officercan invoke authority provided in INA 252(b).

b. This authority is often used for crew control or when re-checkingvessels after they have been inspected and before they depart froma U.S. port on a direct route to a foreign territory to ensure thatthose aliens who were ordered to be on board the vessel are in facton the vessel.

c. This authority can be used if the inspector encounters a crewmanwho does not have any intention of departing on the vessel oraircraft of arrival or is a malafide crewman.

d. Under INA 252(b), a CBP Officer has authority to revoke apreviously granted conditional landing permit and take thatcrewman into custody. Once an officer orders the crewman to beremoved from the U.S., the master or commanding officer of thevessel or aircraft is required to detain the crewman.

e. The transportation line bears the expense of detention and removalof the crewman.

f. A removal order issued under INA 252(b) has the same weight asa removal order issued by an IJ.

g.

stay[maximum 29 days]. A crewman who is denied a conditionallanding permit after inspection, but somehow sneaks into theUnited States undetected, is not within the reach of INA 252(b),but is nevertheless considered an absconder and should be tenderedto CBP, who will return him to the shipping line for removal fromthe U.S. and also access a penalty under INA 252(a). A crewmanwho eludes inspection and sneaks into the Unites States isconsidered to be present without inspection, chargeable under INA 212, and therefore will be amenable to INA 240 proceedings.

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X. Principal Levels of Encounter

It is important for an officer to know and understand the principal levels of encounter in order to properly enforce the elements of INA 287(a).

There are three principal levels of an encounter that an immigration officercan have with the public at a place other than the border : consensualencounter, investigative stop and arrest.

Regardless of the type of encounter, officers should always identifythemselves as officers and perform their duties in a professional manner.

1. Consensual Encounter

a. A consensual encounter occurs when the individual approachedbelieves that he or she is free to walk away from and decline tospeak to the officer.

b. Remember, that an officer, like any other person, has the right toask questions of anyone as long as the officer does not restrainthe individuals freedom to walk away. Properly done, aconsensual encounter with a person will not constitute a seizureunder the 4 th Amendment. Courts have held that actual directphysical contact impeding an aliens departure, and evenconstructive restraint [e.g. by show of force, etc.] will convert aconsensual encounter into a constitutionally protected seizure.

c. Immigration officers should address questions to individuals in away that promotes cooperation.

d. Examples of consensual versus non-consensual encounters:

1. Officer John who talks in a friendly tone, displays relaxedbody language, and is congenial versus Officer Jack whotalks in a demanding and authoritative tone and orderscompliance while taking an aggressive stance.

2. Officer John who asks to talk to subject and informs thesubject that he is free to leave versus officer Jack whoorders the subject to remain and answer questions.

3. Officer John who requests identification and explains thereason for questioning versus officer Jack who accuses thesubject of a crime.

2. Investigative Stops

The Fourth Amendment isnot implicated whenofficers merely approach

and question a person, aslong as the encounter isconsensual in nature anddoes not involve coercionor the restraint of liberty.[See, U.S. v. Jones, 990 F.2d 405 (8 th Cir. 1993)]

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a. An investigative stop occurs when a reasonable person would

believe that he was not free to leave in light of all of thesurrounding circumstances. A vehicle stop is always considered aseizure for the purposes of 4 th Amendment analysis.

b. The U.S. Supreme Court has ruled that police officers may inappropriate circumstances and in an appropriate manner,approach and temporarily detain a person for purposes of investigating possible criminal behavior even though there is noprobable cause to make an arrest. [See, Terry v. Ohio, 392 U.S. 1(1968)]

1. The Court in Terry distinguished an investigative stopfrom an arrest, and a frisk of the outer clothing forweapons from a full-blown search for evidence of a crime.

2. The Court in Terry also stated that because a person maybe armed, police officers should have the power to friskthe outer clothing for weapons, where the officersexperience leads the officer to reasonably conclude that theperson is or may be armed and dangerous and nothingdispels the officers reasonable fear for his safety or thesafety of others. This kind of seizure is justified in part,because a stop and a frisk are considered to be minorinconveniences in the interest of effective lawenforcement.

A stop for investigatorypurposes must be limited: itmust be temporary and last nolonger than necessary to effectthe progress of the stop. Aninvestigatory stop, which laststoo long turns into a defactoarrest, but no bright line,exists determining when thisoccurs. There is no hard andfast limit on the permissiblelength of an investigativedetention. Rather, the test iswhether the detention istemporary and whether thepolice acted with dispatch toquickly confirm or dispel thesuspicions that initiallyinduced the investigativedetention. For example,fixed checkpoints by thepolice or roadside detentions

are not arrests. They arepresumptively temporary andbrief. Similarly, when aperson is merely approachedby a police officer andquestioned about his or heridentity and actions, this isonly an accosting, not anarrest. While a "seizure" inthe constitutional sense occurswhen a police officer stopsand frisks a citizen, such anencountercommonly calleda "Terry stop"does notconstitute an arrest. [See ,5 Am. Jur. 2d Arrest 5]

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c. To effect an investigative stop the officer must have reasonablesuspicion based on articulable facts that the person beingquestioned is or is attempting to be engaged in a criminal oradministrative offense within the officers jurisdiction. Reasonablesuspicion is defined as a particularized and objective basis,supported by specific and articulable facts, for suspecting a personof criminal activity. Black's Law Dictionary (7th ed. 1999 )

d. Articulable facts can be based on:

1. suspicion which is generated through a combination of impressions, and

2. perceived facts that break the characteristic pattern of conduct and appearance of the majority of law-abidingindividuals in a given area.

e. Racial profiling at its core concerns the invidious use of race orethnicity as a criterion in conducting stops, searches, and other lawenforcement investigative procedures. It is not merely wrong, butalso ineffective. You may not use race or ethnicity as a selectioncriterion for an investigative stop unless you have received specificinformation that a suspect is of a certain race. [See, Department of Homeland Securitys Commitment to Race Neutrality in LawEnforcement Activities memorandum dated June 1, 2004].

f. There is no set time limit for the length of an investigative stop. Theofficer must act with due diligence in resolving the particularsuspicion. Due diligence is characterized by steady, earnest,energetic and attentive application and effort toward apredetermined end. Where an officer is proceeding diligentlytoward making a probable cause determination, courts are likely tofind that the officers conduct is reasonable even when eventsbeyond the officers his control caused delays. The officersinvestigation, and thus the duration of the detention, should begeared toward confirming or dispelling the suspicion of criminalactivity. Questioning is generally the primary method used toaccomplish the task.

g. If the officer develops probable cause to believe an object iscontraband or evidence of a crime, the officer the officer maypermanently seize the object. Similarly, if the officer developsprobable cause that a person is committing or has committed acrime, he may permanently seize (arrest) the person.

Racial profiling is theinclusion of race as a primarydeterminant in thecharacterization of a personsconsidered likely to commit aparticular type of crime.Towards the end of the 20thcentury in the United Statesthe practice fell into disfavorwith the general public asabuses by law enforcement came to light. CriminalAdvocates are against the useof racial profiling tactics by

the police. They argue that thedisproportionate number of convicted minorities is due to"racial profiling".

See ,

http://en.wikipedia.org/wiki/Racial_profiling

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3. Arrest

a. An arrest occurs when a reasonable person in the suspects situationwould have believed he was in custody (under arrest) .

b. In deciding whether an intrusion by an officer is considered anarrest, the courts have considered the following factors:

1. the degree and manner of force used;2. whether the suspect was moved to a new location, and the

justification for the move;3. length of detention of the suspect;4. whether suspect was searched;5. whether Miranda or administrative rights were given;6. whether the suspect was booked and/or fingerprinted;7. the words used, the tone of voice and general demeanor of

the officer.

c. Probable cause is needed to arrest a suspect in a criminal oradministrative situation. Probable cause is defined as [a]reasonable ground to suspect that a person has committed or iscommitting a crime or that a place contains specific items connectedwith a crime. Black's Law Dictionary (7th ed. 1999)

d. Arrests can be made without a warrant if consent or exigentcircumstances exist.

e. Simultaneous Arrests

1. Officers are tasked with enforcing both administrative andcriminal laws and regulations. In some instances, therewill be probable cause to believe that the suspect hascommitted both administrative and criminal offenses at thetime of arrest. For example, an officer encounters a groupof aliens at a gas station. During the course of questioninghe determines that they all entered illegally through thehills that very day. Several aliens, however, all identifyone particular individual in the group as their foot guideand the driver of the car being gassed up at the station. Theofficer suspects this individual of illegally smuggling andtransporting aliens. All of these individuals are subject toadministrative arrest for a violation of section212(a)(6)(A)(i) of the INA as aliens present withoutadmission or parole, however, the person identified as thefoot guide and driver has violated Title 8 U.S. Code

Under totality of thecircumstances, questioningof defendant by Immigrationand Naturalization Service(INS) agent constitutedinterrogation for Miranda

purposes; after defendant, acitizen of China, wasarrested in home of suspected smuggler of aliens, agent questioned himabout how he arrived inGuam, questioning was donein connection withinvestigation of suspectedsmuggler, prosecutor waswilling to pursue chargesagainst defendant in order toprocure defendant'stestimony against suspected

smuggler, and defendant wasquestioned in district inwhich there was a practiceof prosecuting violations of statute criminalizingimproper entry into UnitedStates by aliens. [See,U.S. v. Chen, 439 F.3d 1037C.A.9 (Guam 2006)]

Where an Alien has beenAdvised of HisAdministrative Rightsunder 8 C.F.R. 287.3,and an Officer Wants toPreserve the AliensStatements for CriminalProsecution, the OfficerMust Both Advise theAlien of His MirandaRights and Must Clarifythat the Alien Does, in

Fact, Have the Right to anAttorney at GovernmentExpense If He CannotAfford OneUnited States v. San Juan-Cruz , 314 F.3d 384 (9thCir. 2002).

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1324(a) and is therefore likely to be prosecuted for his rolein the smuggling operation.

2. In these circumstances, the aliens due process rightsconcerning the criminal arrest must be observed first .

3. The administrative proceeding may not be used to delay orcircumvent the aliens constitutional rights.

CLASSROOM EXERCISE

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XI. Returning to INA 287: Powers of Immigration Officers and

Employees

1. INA 287(a)(1)

Powers without warrant. Any officer or employee of the Serviceauthorized under regulations prescribed by the Attorney General shallhave power without warrant--(1) to interrogate any alien or person believed to be an alien as to hisright to be or to remain in the United States; . . .

a. purpose of an interrogation is to ask questions that will elicit astatement against the interest of the subject.

b. For Government purposes, an interrogation is used to:

1. Determine whether the individual is an alien, and2. Determine whether the individual, if he is an alien, is in the

U.S. in violation of law.

c. There is implied authority given in INA 287(a)(1) to detain aperson in order to interrogate (investigative stop). To justify thestop, the officer must have reasonable suspicion based on articulablefacts that the person is or may be an alien. Interrogation then has asits purpose the determination of whether any alien so discoveredmay be illegally in the U.S. [Note: 2 nd Circuit opinion discussedatright/below]

d. Examples of the articulable facts may include:

Pursuant INA 287(a)(1) animmigration officer may alsobriefly detain for questioning

any alien or person believed tobe an alien regarding his rightto be or remain in the UnitedStates. The statute has beeninterpreted to allowimmigration officers the right toseek to interrogate individualsreasonably believed to be ofalien origin. The minimal invasion of the privacy of theindividual approached forquestioning has been found

justified by the special needsof immigration officials to makesuch interrogations. However,although the statute gives officers of the Immigration andNaturalization Service theauthority to interrogate anyalien as to his right to be in theUnited States, it does notauthorize the interrogation ofthe alien concerning criminalmatters, nor does it condoneharassment. [63 A.L.R. 180][See , United States v.Rodriguez-Franco, 749 F2d1555 (CA 11 Fla. 1985) andU.S. v. Olivares-Rangel, 324F.Supp. 2d 1218 D.N.M.2004)]

There is a split amongst the

Federal Circuit courts:In some instances, theauthority of Immigration andNaturalization Service officialsto conduct warrantlessinterrogations has been limitedto situations where suchofficials have a reasonablesuspicion, based on specificarticulable facts, that theperson may be an alien who isillegally in the country. [See ,Marquez v. Kiley, 436 F. Supp.100 (SDNY 1977) and UnitedStates v. Hernandez, 470 F.Supp. 1212 (EDNY 1979)]

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e.

Note: There is a difference of opinion amongst a few circuits, which havespoken on the issue, regarding the nature of the suspicion. The Second Circuithas said that you must suspect that the person is an illegal alien. The EleventhCircuit has said you need only suspect the person is an alien. Other circuitshave not addressed the matter so outside the 2 nd Circuit we take thelongstanding viewpoint that the statute has been interpreted to allowimmigration officers the right to seek to interrogate individuals reasonablybelieved to be of alien origin.

The rule for roving vehicular stops is different. The published case UnitedStates v. Brignoni-Ponce , 422 U.S. 873 (1975), involved roving Border Patrolagents that stopped a vehicle near the border and questioned the occupantsabout their citizenship and immigration status. The only basis for the stop that was articulated by the agents at trial was the apparent Mexican ancestry of theoccupants. The Supreme Court ruled that a roving Border Patrol agent couldstop a vehicle only if that agent is aware of specific articulable facts, togetherwith rational inferences from those facts, that reasonably warrant suspicion thatthe vehicle contains illegal aliens. Although apparent Mexican ancestry is arelevant factor in obtaining reasonable suspicion, standing alone, it isinsufficient to stop the individuals.

The authority available to immigration officers under INA 287(a)(1) shouldnot be confused with roving vehicular stops or with temporary seizures thatoccur at Border Patrol Immigration Checkpoints. The Supreme Court hasdetermined that CBP can make routine vehicle stops to inquire into citizenshipand immigration status at reasonably located permanent checkpoints, without awarrant, and refer vehicles to secondary citizenship questioning withoutparticularized suspicion. [See, United States v. Martinez-Fuerte, 428 U.S. 543(1976).]

While not invoking the more exacting requirements imposed by the U.S.Supreme Court in the area of roving patrols, members of the Court have raisedthe issue [by way of a dissenting opinion] for the need of a higher threshold inthe worksite enforcement arena. The Court could very easily be asked to

addressonce again the use of INA 287(a)(1) during a worksite enforcement operation.For now, however, for ICE officers/agents who are involved in the worksiteenforcement world, this authority is available during properly executed siteinspections conducted pursuant to 8 CFR 287.8(f)(1) and (2). Currently suchoperations are briefed and conducted pursuant to the Courts majority opinion in

The Supreme Court limitedthe exercise of the authoritygranted by the statute so thatimmigration officers on rovingpatrol in border areas may stopvehicles only if they are awareof specific articulable facts,which, together with rationalinferences from those facts,reasonably warrant suspicionthat the vehicles contain alienswho may be illegally in thecountry. Furthermore, the courtsaid that once an officer hasreason to suspect that aparticular vehicle may containaliens who are illegally in thecountry, he may stop the car

briefly and investigate thecircumstances that provokesuspicion, and may questionthe driver and passengersabout their citizenship andimmigration status, as well asasking them to explainsuspicious circumstances, butthat any further detention orsearch must be based onconsent or probable cause. Inreaching its decision, the courtnoted that the FourthAmendment applies to allseizures of the person,including seizures that involveonly a brief detention short oftraditional arrest, and that aswith other categories of policeaction subject to FourthAmendment constraints, thereasonableness of suchseizures depends on a balancebetween the public interest andthe individual's right topersonal security free fromarbitrary interference by lawofficers. [See , 63 AmericanLaw Reports 180]

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I.N.S. v. Delgado, 466 U.S. 210 [i.e. lawful presence in factory followed byconsensual encounters]. Delgado allows for consensual questioning and movingfrom person to person in the worksite while in the process of checking status.No 4 th amendment issue is present as there is no seizure according to the Court.

The combined federal case law appears clear on the matter. If an officer/agentreasonably suspects [based upon 2 or more articulable facts] that anindividual he has encountered is or may be an alien, detention is authorizedto interrogate about lawful presence. Note, however, that ICE has the ability torequire its officers and agents, as a matter of policy, to live by a higherstandard than that established by statute, regulation, and case law.

Accordingly, should ICE choose to issue nation-wide guidance for worksiteenforcement operations that required the officer/agent to reasonably suspect theindividual is either an alien unlawfully present in the United States or an alienwith status who is nevertheless inadmissible or removable for the United Statesin order to detain (seize under the 4 th Amendment) him, such a policy controlsthe officers/agents scope of authority in that instance.

For Special Agents, Deportation Officers, and Immigration Enforcement Agentsaccessing areas open to the general public, certain open fields, etc., under8 CFR 287.8(f)(4), they may use the authority granted under INA 287(a)(1).

2. INA 287(a)(2)

(a) Powers without warrant. Any officer or employee of the Serviceauthorized under regulations prescribed by the Attorney General shallhave power without warrant (2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulationmade in pursuance of law regulating the admission, exclusion, expulsion,or removal of aliens, or to arrest any alien in the United States, if he hasreason to believe that the alien so arrested is in the United States inviolation of any such law or regulation and is likely to escape before awarrant can be obtained for his arrest, but the alien arrested shall betaken without unnecessary delay for examination before an officer of theService having authority to examine aliens as to their right to enter or remain in the United States.

a. INA 287(a)(2) gives an immigration officer the authority toconduct an administrative arrest of an illegal alien for the purpose of removing the alien from the U.S.

b. The words reason to believe in INA 287(a)(2) have been interpretedto mean probable cause. Therefore, an officer must have probablecause to believe that the person is an unauthorized alien in order to

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effect this arrest.

c. Pursuant to 8 CFR 287.5(c)(1), the following immigration officerswho have successfully completed basic immigration law enforcementtraining [as defined in 8 CFR 287.1(g)] are authorized and designatedto exercise the arrest power of INA 287(a)(2):

1. border patrol agents, including aircraft pilots;

2. special agents;

3. deportation officers;

4. immigration inspectors [now referred to as CBP Officers];

5. adjudications officers;

6. immigration enforcement agents;

7. supervisory and managerial personnel who are responsible forsupervising these officers; and

8. other immigration officers who need the authority to arrest aliensunder this section to accomplish their missions, as designated bythe Commissioner of CBP or the Assistant Secretary for ICE

During a routine Serviceinvestigative search of arestaurant, an alien producedtwo documents (an executedwarrant of arrest and an order

of supervision) in differentnames. The investigator was justified in believing the aliento be in the United States inviolation of law and likely toescape before a warrant of arrest could be obtained.Following the arrest the alienwas taken withoutunnecessary delay forexamination before a Serviceofficer who took an affidavitfrom him and obtained anorder to show cause and awarrant of arrest. The alien'sarrest without a warrant wasnot illegal and the documentsproduced by him during thesearch and the affidavitobtained following arrest areadmissible in evidence indeportation proceedings. [See, Matter of Yam 12 I.& N. 676 (BIA 1968)]

d. To make a warrantless arrest pursuant to INA 287(a)(2), theofficer must believe the alien is likely to abscond before a warrant of arrest can be obtained.

e. Once arrested, the alien shall be taken without unnecessary delay forexamination before an officer having the authority to examine aliensas to their right to enter or remain in the U.S. This officer must besomeone other than the arresting officer, unless the sole exception tostandard practice mentioned in 8 CFR 287.3(a) is warranted.Although the regulations do not stipulate the exact personnel forthis, in practice, the examination of a warrantless arrest is generally[as appropriate] conducted by the supervisory special agent,supervisory patrol agent, or supervisor in detention and enforcementresponsible for the area where the arrest occurred.

f. An alien arrested under INA 287(a)(2) must be advised of thereason for the arrest and of his or her administrative rights.

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Administrative rights differ from the Miranda warning given incriminal matters. Although the alien has the right to obtain counselin administrative matters, the alien does not have the right to counselat the governments expense as the alien does in criminal matters.Subsequent to an administrative arrest under INA 287(a)(2) thealien will be advised of the right to communicate with consularofficers from his home country. The alien will be provided with alist of free legal services in the district where the proceedings will beheld. The alien will also be advised that any statement made may beused against him in a subsequent proceeding. [See, 8 CFR 287.3(c)] Subsequent to a criminal arrest an alien will be advisedthat he has the right to remain silent, and that anything he says mightbe used against him in a court of law, and is further advised that if he cannot afford a lawyer one will be appointed for him at noexpense [Miranda]. You can see the distinct difference between thetwo sets of advisals/warnings.

g. If the alien invokes his right to counsel, an immigration officer canonly ask the alien about booking information such as the aliensname, date of birth, sex, color of hair and eyes, height, weight, andU.S. address.

h. Arrests made under INA 287(a)(2) can also be made with arrestwarrants, where the alien is not likely to abscond or absent exigentcircumstances. In these situations, the administrative warrant of arrest must be issued by one of the authorized immigration officersspecified in 8 CFR 287.5(e)(2).

XII. INA 287(a)(4)

(a) Powers without warrant. Any officer or employee of the Serviceauthorized under regulations prescribed by the Attorney General shallhave power without warrant-(4) to make arrests for felonies which have been committed and which arecognizable under any law of the United States regulating the admission,exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before thenearest available officer empowered to commit persons charged withoffenses against the laws of the United States

1. In contrast to INA 287(a)(2), which allows for the warrantlessadministrative arrest of an illegal alien, INA 287(a)(4) provides for thewarrantless criminal arrest of any person involved in a felony related

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to the INA .

2. The violation must be a felony that is generally punishable byimprisonment and/or a fine. Examples include but are not limited to:

a. 18 USC 1546 Fraud related to Immigration Documents;

b. 18 USC 911 False Claim to United States Citizenship;

c. 8 USC 1324(a) - Bringing In and Harboring Certain Aliens(alien smuggling);

d. 8 USC 1325(b) Marriage Fraud;

e. 8 USC 1326 Reentry of Deported or Removed Alien.

3. The person arrested may be an alien or a USC.

4. The words reason to believe in INA 287(a)(2) have been interpretedto mean probable cause. Therefore, the officer must have probablecause to believe the person is or has committed a criminal offenserelated to the INA to effect this arrest.

5. Pursuant to 8 CFR 287.5(c)(2), the following immigration officerswho have successfully completed basic immigration law enforcementtraining [as defined in 8 CFR 287.1(g)] are authorized and designatedto exercise the arrest power conferred by INA 287(a)(4):

a. border patrol agents, including aircraft pilots;

b. special agents;

c. deportation officers;

d. immigration inspectors [now referred to as CBP Officers];

e. adjudications officers;

f. immigration enforcement agents;

g. supervisory and managerial personnel who are responsible forsupervising the activities of these officers; and

h. other immigration officers who need the authority to arrest under

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this section to accomplish their missions, as designated by theCommissioner of CBP or the Assistant Secretary for ICE

6. Because INA 287(a)(4) involves criminal matters, MirandaWarnings must be given prior to any custodial interrogation for acriminal arrest..

7. The individual who is arrested without a warrant must be taken withoutunnecessary delay before a U.S. Magistrate Judge. This will include thefiling of an affidavit and a complaint.

8. Arrests made under INA 287(a)(4) can also be made with arrestwarrants where the alien is not likely to escape or absent exigentcircumstances. In these situations, a Federal District Court Judge or U.S.Magistrate must issue the criminal warrant of arrest.

XIII. INA 287(a)(5)

(a) Powers without warrant. Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant(5) to make arrests--(A) for any offense against the United States, if theoffense is committed in the officer's or employee's presence, or (B) for any

felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony, if the officer or employee is

performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escapingbefore a warrant can be obtained for his arrest.

1. The authority addressed in this section has two parts:

a. Subsection (A) addresses the warrantless criminal arrest of anyperson involved in any offense against the U.S. committed in theofficers presence, and

b. Subsection (B) addresses the warrantless criminal arrest of anyperson involved in any felony against the U.S. if the officer hasreason to believe that the person to be arrested has committed oris committing such a felony, not necessarily in the officerspresence.

2. This authority is commonly referred to as General ArrestAuthority. It allows immigration officers to make

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warrantless arrests for criminal violations, other thanimmigration law violations. Nevertheless, it extends only tofederal offenses . Officers cannot exercise this authority toconduct arrests for offenses against any state.

3. The statute indicates that in order for an officer to make an arrestwithout a warrant for a felony as provided in INA 287(a)(5)(A)or (B), the following elements must be met:

a. The officer is performing duties relating to theenforcement of the immigration laws at the time of arrest.The officer cannot exercise this authority off-duty.

b. There is a likelihood of the person escaping before awarrant can be obtained for the persons arrest.

4. In 2003 the training and authorization for INA 287(a)(5)(A)arrest authority was instituted and by regulation it was extended tothose individuals listed in 8 CFR 287.5(c)(3). Additionally, byMemorandum dated 11/26/2003 from the Office of the AssistantSecretary for ICE, ICE Special Agents, Deportation Officers, andImmigration Enforcement Agents who have successfullycompleted the basic immigration law enforcement training[including by de facto incorporation, those who complete theEquivalency Training Program (ETP)] have been granted theauthority to use INA 287(a)(5)(A) arrest authority.

5. The regulations in 8 CFR 287.5(c)(4) say that in order to effectan arrest under the provisions of INA 287(a)(5)(B), an officermust have successfully completed the basic immigration lawenforcement training and have been certified by the Director of Training as successfully completing a training courseencompassing such arrests and the standards for enforcementactivities as defined in 8 CFR 287.8. Understand that 8 CFR 287.5(c)(4) is the exclusive governing regulation for the exerciseof INA 287(a)(5)(B) authority by immigration officers. TheAssistant Secretary for ICE has specifically withheld permissionfrom Immigration Enforcement Agents and Deportation Officersto exercise the arrest authority contained in INA 287(a)(5)(B).This is not the case for ICE Special Agents. They canlook beyond Title 8 of the United States Code/8 CFR and siteconcurrent General Arrest Authority available to them via Title19 of the United States Code and 19 CFR. Since the

consolidationof Legacy Customs and Legacy INS into ICE, Legacy CustomsSpecial Agents, cross-trained Legacy INS Special Agents, and

Federal Rules of CriminalProcedure 5(a) and 8

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graduates of the ICE-Special Agent Training Course have allbeen authorized to make arrests for felonies, cognizable underthe laws of the U.S., committed outside the officers presencepursuant to 1589a of Title 19 of the United States Code.

6. The person arrested may be an alien or a USC.

7. The words reason to believe in INA 287(a)(5) have beeninterpreted to mean probable cause. Therefore, the officer

musthave probable cause to believe the person is an unauthorizedalien in order to effect the arrest.

8. The Miranda Warning must be given prior to any custodialinterrogation for a criminal offense.