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Lesson Plan Overview

Course STATUTORY AUTHORITY

Course Description Federal law enforcement officers can only act by virtue of legal
authority. This course provides an overview of laws that grant federal
law enforcement officers authority to take appropriate action to enforce
the Immigration and Nationality Act (“INA”).

Field Performance To be able to take appropriate actions and justify those actions by
Objective referencing applicable authority when given hypothetical field
situations where the INA must be enforced.
Interim (Training) 1. Define the term “immigration officer.”
Performance Objectives 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 admission”


235(a)(2) Removal of stowaways by immigration officer upon inspection
235(a)(3) Inspection of all applicants for admission by immigration officers
235(a)(5) Statement under oath by applicant for admission concerning his admissibility
235(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 aliens
235(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 laws
287(a)(3) Board and search for aliens within reasonable distance from border/enter onto
private property within 25 miles from the U.S. border
287(a)(4) Criminal arrest without warrant for any felony under Legacy INS jurisdiction
287(a)(5) Arrest for felony under U.S. law
287(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 perjury
287(c) Search person and personal effects of applicant for admission at POE
for evidence of inadmissibility
287(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 not
all-inclusive. For example, ICE Special Agents and Border Patrol both derive authorities
from Title 19 of the United States Code, that are different and in many ways more
expansive than the authorities that were formerly available for use by Legacy INS under
Title 8 of the United States Code. Creating the Department of Homeland Security (DHS)
and consolidating the duties and responsibilities of Legacy Customs and Legacy INS
yielded “One Face Along the Border.” Similarly, Legacy Customs officers also derived
authorities 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 the
interior of the U.S. who can look to multiple sources of authority to enforce the laws of the
U.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 as
“immigration officers.” Recognize that Customs and Border Protection
(“CBP”) and Citizenship and Immigration Services (“CIS”) both have
personnel 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 the


United 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 to


designate assignments [See, INA § 103]; however, this authority is often
delegated 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 listed


employees]
Immigration officer, immigration inspector, immigration examiner,
adjudications officer, Border Patrol agent, aircraft pilot, airplane
pilot, helicopter pilot, deportation officer, detention enforcement
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officer, detention officer, investigator, special agent, investigative
assistant, 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, immigration
information officer, immigration agent (investigations), asylum
officer, other officer or employee of the Department of Homeland [See, 8 CFR § 287.5
Security or of the United States as designated by the Secretary of which discusses the
Homeland Security as provided in § 2.1 of this chapter. Any exercise of power by
customs officer, as defined in 19 CFR 24.16, is hereby immigration officers.]
authorized to exercise the powers and duties of an immigration
officer as specified by the Act and this chapter. [emphasis added]

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II. INA § 240 Removal Proceedings

1. Because much of the authority to be discussed involves the


administrative removal of unauthorized aliens, it is important to know
what a removal is, the purpose and function of an INA § 240 removal
proceeding, and the personnel involved in the removal process.

2. On September 30, 1996, President Clinton signed the Illegal


Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), which is one of the most extensive amendments to the INA
since 1952.

3. Prior to the enactment of IIRIRA, there were separate proceedings


dealing with either “exclusion” or “deportation.” IIRIRA created a
single proceeding known as a removal proceeding. In a removal
proceeding, an alien can either be charged with a ground of
inadmissibility under INA § 212(a) or a ground of deportability
under INA § 237(a). This proceeding determines whether an alien may
be 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 the
alien’s application for admission.

5. An alien can be charged as deportable if he has been lawfully


admitted to the U.S., but after admission, subsequently violates a
condition of his lawful status.

6. The removal hearing is an administrative proceeding, which is


presided over by an immigration judge (“IJ”). The alien is referred to as
the “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 the


U.S., the alien is being charged as being deportable. The Government
has the burden of proof to prove by clear and convincing evidence that
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the alien is deportable as charged. “Clear and convincing evidence” is the
level of proof that the Supreme Court, in Woodby, decided would apply to
administrative deportation proceedings. Congress subsequently codified this in
Immigration and Nationality Act (INA). The Supreme Court has stated that
the “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, 441
U.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 fact
determined by an immigration judge, subject to review in federal court.

Some examples of evidence that is used to establish clear and convincing


evidence include but are not limited to: statements from the alien that they
were born in another country, foreign birth certificates, an aliens admissions
regarding foreign birth before the immigration judge when pleadings are taken
in 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 an


applicant for admission at a POE, or who has been found present in the
U.S. without inspection, the Government must first prove alienage; then
the burden of proof shifts to the alien who must then prove clearly and
beyond a doubt that he or she is entitled to be admitted to the U.S. or is
otherwise 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 to
conduct specified classes of proceedings, including a hearing under
section 240 of the Act. An immigration judge shall be subject to such
supervision and shall perform such duties as the Attorney General shall
prescribe, but shall not be employed by the Immigration and
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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. The
IJ exercises powers and duties in immigration proceedings and
such other proceedings that the Attorney General assigns to the IJ
to 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 IJ
cannot and does not impose penalties of incarceration for aliens.
However, the IJ can review ICE’s decision to hold an alien in
detention, and make decisions concerning an alien’s bond. An IJ
can lower, raise, revoke, or leave a bond the same as a result of
conducting a bond redetermination hearing for an alien. An IJ’s
authority to redetermine bond is contained in 8 CFR §1003.19.

d. An IJ’s responsibilities and duties during an INA § 240 removal


proceeding may include:

1. determining the removablity and/or availability of relief to


the 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 IJ’s decision will include a finding as to inadmissibility or Appendix A to this


deportability and reasons for denying or granting any request or workbook contains a
application for discretionary relief from removal made by the flow chart that shows
alien. the path of an alien’s
immigration case
f. The IJ can certify a decision or an issue to the Board of through the EOIR
Immigration Appeals (BIA) when a case involves a complex or system.
unusual issue.
Appendix B to this
g. When an IJ issues an order in immigration court, both sides (the workbook is an EOIR
Government and the alien) are given the opportunity to accept fact sheet that
the decision or reserve the right to file an appeal. If both sides discusses the removal
waive appeal and accept the IJ’s order, the order becomes final hearing process.
and the case is complete. If appeal is reserved by one party or by
both, the appealing party has thirty (30) days from issuance of Appendix C to this
the IJ’s order to file a Notice of Appeal (“NOA”) with the BIA. workbook is an EOIR
fact sheet that
discusses the topic of
relief from removal.
h. The BIA must receive the NOA within the 30-day period in
order to be authorized to review the decision made by the IJ.
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Until the BIA makes a decision upon the appeal, the order is not
final.

2. Board of Immigration Appeals (“BIA”) A published Board


decision has precedential
effect – even if it has been
a. The BIA is a part of the EOIR, and thus is also a part of the U.S. referred to the Attorney
Department of Justice. General for review –
unless and until modified
b. The BIA reviews appeals from the IJ's decisions in INA § 240 or overruled by the
removal proceedings or the immigration judges’ requests for Attorney General, the
Board, Congress, or a
certification. Issues addressed by the BIA include custody Federal court. [See, Matter
redetermination, inadmissibility, deportability and relief from of E-L-H-, 23 I&N Dec
removal. 814 (BIA 2005)]

c. Not all of the BIA’s decisions are published to the public. Only
the published BIA appellate administrative decisions are
binding
on aliens and DHS agencies responsible for enforcing
immigration laws nationwide.

d. The BIA’s published decisions are binding on aliens and on all


DHS officers and IJs unless modified or overruled by the
Attorney General or a Federal court.

3. Government Counsel

a. “Trial” or “general” attorneys in field offices under the ICE


Office of the Principal Legal Advisor [OPLA] are known as
“assistant chief counsels.” Their primary duty is to advocate on
behalf of the United States in immigration court and before the
BIA. They also provide critical support to the U.S. Attorney b5
Offices on matters related to immigration law.

b. Assistant chief counsels’ duties in an INA § 240 removal


proceeding may include:

1. representing the Department of Homeland Security’s


position;
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 IJ’s decisions to the


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

IV. Introduction to Authority

Authority is defined as “the right, permission, or power to act legally that


comes from a specific source.” [See, Black's Law Dictionary (7th ed. 1999)]

Immigration Officers must be familiar with the various sources of authority


to perform their respective duties. It is extremely important that officers
know the limits of their powers and stay within those limits.

1. Sources of Authority
Public international law
establishes the framework
a. International Law and the criteria for
identifying states as the
principal actors in the
1. Each sovereign state, including the U.S., has the right to international legal system.
regulate, prohibit entry, and limit the stay of foreigners. As the existence of a state
presupposes control and
2. Each sovereign state has its own regulations on admitting jurisdiction over territory,
and regulating foreigners to its country. international law deals with
the acquisition of territory,
state immunity and the
3. Sovereign states can enter into mutual agreements with legal responsibility of states
other sovereign states on specific procedures or programs in their conduct with each
involving the subject of immigration law. For example, the other. International law is
similarly concerned with the
U.S. has agreed to the following immigration programs: treatment of individuals
Visa Waiver Program (“VWP”), European Union (“EU”) within state boundaries.
and the North America Free Trade Agreement (“NAFTA”). There is thus a
comprehensive regime
4. International Treaties are not binding upon the U.S., even dealing with group rights,
when the U.S. is a signatory to the treaty, unless the treaty the treatment of aliens, the
is “self-executing” or Congress enacts supporting rights of refugees,
international crimes,
legislation. nationality problems, and
human rights generally. It
b. The United States Constitution further includes the
important functions of the
maintenance of
1. It, and its 27 Amendments, is the supreme law of the international peace and
U.S. security, arms control, the
pacific settlement of
2. The Constitution is flexible. Since its ratification the disputes and the regulation
Constitution has grown with new amendments and it of the use of force in
has been constantly interpreted in Federal judicial international relations.
Even when the law is not
decisions. The U.S. Supreme Court has the final able to stop the outbreak of
authority on cases and controversies concerning the war, it has developed
principles to govern the
Constitution. conduct of hostilities and
3. Article 1, Section 8, Clause 3, of the Constitution the treatment of prisoners.
empowered Congress to regulate commerce with International law is also
used to govern issues
foreign nations. relating to the global
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4. A federal law enforcement officer’s primary duty is environment, the global
commons such as
to uphold the Constitution international waters and
outer space, global
communications, and world
trade.
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 the See,
Constitutional Convention in Philadelphia, Pennsylvania, and later ratified http://en.wikipedia.org/wik
by conventions in each state in the name of "the People." The Constitution i/Public_international_law
has a central place in American law and political culture. The U.S.
Constitution is argued by many to be the oldest written national
constitution, except possibly for San Marino's Statutes of 1600, whose
status as a true constitution is disputed by scholars. The handwritten, or
"engrossed", original document is on display at the National Archives in
Washington, 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 key
element that holds the body of law erect. “Former Supreme Court Justice
William Rehnquist contended that the framers of the constitution wisely
spoke in general language and left unto succeeding generations the task of
applying that language to the changing environment in which those
generations would live.” [Prof. Scott Schlimmer @
http://www.personal.umich.edu/sschlimm/constitution.html]

The constitution provided for the formation of the remaining parts of the
“body” by establishing a unique and enduring form of government. It
established the Legislative, 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 prevent
abuse 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_Stat
es_Constitution]

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c. The Immigration and Nationality Act (“INA”)

1. Congress wrote the INA using authority granted to it


from the Constitution. These laws are codified at
Title 8 of the United States Code.
2. The INA of 1952 has been amended several times
with new Acts such as Immigration Reform and
Control Act of 1986 (“IRCA”), Immigration Act of
1990 (“IMMACT”), and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”).

d. Title 8 of the Code of Federal Regulations (“8 CFR”) Equally important


are the following:
1. Congress gave authority to the Secretary of
Homeland Security (formerly the Attorney DHS Delegation
General) to elaborate upon and implement the Number 7030.1
INA in detail. Historically the Attorney General
DHS Delegation
delegated this duty to Legacy INS. Consequently, Number 7030.2
Legacy INS formulated most of the current
regulations. Today the Attorney General still has ICE Delegation
limited authority over the regulations because he Number 0001
still oversees EOIR. EOIR regulations are found in
the 1000’s section of 8 CFR. The rest of 8 CFR is OI/DRO
Organizational
now promulgated by DHS and the Secretary of Delegation Orders
DHS, and can involve information governing the
activities of ICE, CBP and CIS. DHS/ICE Directives
2. These regulations are binding on the public and on and Policy
the Government. Memorandum
3. These regulations cannot contradict the INA.

e. Decisions from the Attorney General and various courts


including the BIA, U.S. Circuit Court of Appeals and U.S.
Supreme Court

1. The above sources publish decisions on cases


involving complex or novel issues of immigration
law.
2. Published decisions can either be imperative or
persuasive authority depending on the source. DHS is
bound by decisions from Federal courts, not state
courts.

2. Hierarchy of Authority
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a. Statutory Authority

1. Statutory authority is authority that is provided for by


law and enacted in statute.
2. For example: INA § 287(a)(1) states that “[a]ny
officer or employee of the Service authorized under
regulations prescribed by the Attorney General shall
have power without warrant . . . to interrogate any
alien or person believed to be an alien as to his right
to be or to remain in the United States”.

b. Delegated Authority

1. Delegated authority is authority that is entrusted to


another.
2. A person who has the authority to act can delegate
that authority; however, that person retains overall
responsibility for the exercise of such authority and
the outcome, results, and consequences of the
delegatee’s actions.
3. For example: INA § 235(a)(4) states that “[a]n alien
applying for admission may, in the discretion of the
Attorney General and at any time, be permitted to
withdraw the application for admission and depart
immediately from the United States.”
The Secretary of DHS has delegated this authority,
and the Attorney General had delegated it, to certain
Immigration Officers. Although the authority to act
is delegated, the responsibility and ultimate liability
for permitting the alien to withdraw the application
for admission remains with the Secretary.

c. Implied Authority

a. Implied authority is the authority to act, although it is


not specifically stated in statute. For example, INA §
287(a)(1) gives officers the authority to interrogate
without a warrant any alien or person that is believed
to be an alien about their right to be or remain in the
U.S. There is no mention of an authority to stop that
alien. However, it is implied the officer must first
stop that alien to interrogate that alien.
Accordingly, the officer has the implied authority to
stop and interrogate that alien in accordance with
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established Federal 4th Amendment principles.

V. INA § 235(a) Inspection

1. INA § 235(a)(1) Historically, the BIA held


that an alien who is
involuntarily brought to the
(1) Aliens treated as applicants for admission. An alien present in United States by agents of
the United States who has not been admitted or who arrives in the the United States should be
United States (whether or not at a designated port of arrival and given a reasonable
including an alien who is brought to the United States after having opportunity to depart prior
been interdicted in international or United States waters) shall be to the institution of
proceedings to deport the
deemed for purposes of this chapter an applicant for admission.
alien from the United
States. [See, Matter of
a. The term “applicant for admission” includes aliens: Badalamenti, 19 I&N Dec.
623, 626 (B1A 1988) and
1. Arriving in the U.S., Matter of Loulos, 16 I&N
Dec. 34 (BIA 1976)]
2. Interdicted at sea,
3. Who have entered without inspection. However, subsequent to
the issuance of this line of
b. Inspections of applicants for admission arriving in the cases, Congress amended
U.S. or interdicted at sea have been delegated to CBP the Act with the passage of
Officers. the Illegal Immigration
Reform and Immigrant
Responsibility Act of
1996, Pub. L. 104-208,
110 Stat. 3009 (Sept. 30,
1996) (“IIRIRA”).

Due to the amendments


made to the Act by
IIRIRA, Matter of
Badalamenti, supra, and
Matter of Loulous, supra,
are no longer controlling
precedent 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 such
inspection if the alien indicates an intention to apply for asylum
under section 208 or a fear of persecution, the officer shall refer the
alien for an interview under subsection (b)(1)(B) of this section. A
stowaway may apply for asylum only if the stowaway is found to
have a credible fear of persecution under subsection (b)(1)(B) of this
section. 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 the


owner, 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 who


claims to have a fear of persecution is referred for a credible fear
interview.

c. A stowaway who is ordered removed by an Immigration Officer


under the authority of this statute is usually directed to be
removed on the vessel or aircraft on which the alien arrived in
the U.S.

d. The owner of the vessel or aircraft that brought the stowaway to


the U.S. is generally required to pay for the costs of detaining
and maintaining the alien until the alien physically departs the
U.S.

3. INA § 235(a)(3)

(3) Inspection. All aliens (including alien crewmen) who are


applicants for admission or otherwise seeking admission or
readmission to or transit through the United States shall be
inspected by immigration officers.

a. INA § 235(a)(3) does not authorize the searching of an alien


and/or the alien’s personal effects at a POE; that authority is
found in INA §287(c).

b. Applications to lawfully enter the U.S. must be made in person


to 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 and
identity. The purpose of an inspection is to establish
admissibility. This inspection may happen at the border or its
functional 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 citizenship


when seeking to enter the United States. If they fail to satisfy
the officer that they are U.S. citizens, then they will be inspected
as aliens. Both 8 CFR §235.1(b) and 22 CFR Part 53 address the
Travel Control requirements applicable to USCs.

f. One function of an officer’s inspection is to determine whether


the alien has proper documentation. For example, those aliens
lawfully admitted for permanent residence (“LPRs”) must
submit all their documentation to an officer for inspection.

4. INA § 235(a)(5)

(5) Statements. An applicant for admission may be required to state


under oath any information sought by an immigration officer
regarding the purposes and intentions of the applicant in seeking
admission 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 the
applicant is inadmissible.
b5

a. INA § 235(a)(5) grants immigration officers the authority to


take a statement from an applicant for admission about his
admissibility to the U.S. A USC is not an applicant for
admission once U.S. citizenship has been established. This
authority cannot be used when taking information under oath
from a USC.

CLASSROOM EXERCISE

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b2High

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

1. INA § 235(b)(2)
*The Act supports the
conclusion that some crewmen
(2) Inspection of other aliens. Subject to subparagraphs (B) are eligible for removal
and (C)… [I]n the case of an alien who is an applicant for proceedings under section 240

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admission, if the examining immigration officer determines of the Act. Significantly, section
237(a) of the Act, 8 U.S.C. §
that an alien seeking admission is not clearly and beyond a 1227(a), specifically includes
doubt entitled to be admitted, the alien shall be detained for crewmen by stating, “[a]ny
alien (including an alien
a proceeding under section 240. crewman) in and admitted to the
United States shall upon the
a. INA § 240 provides for a single proceeding in which an IJ order of the Attorney General,
be removed if the alien is within
determines the inadmissibility (INA § 212) or deportability (INA one or more of the following
§ 237) of an alien. classes of deportable aliens.…”
As an alien crewman can be
removable under section 237 of
b. The following aliens are not entitled to review by an IJ in an the Act, an alien crewman
INA §240 removal proceeding: charged with removability
under this section must be
entitled to proceedings under
(1) Crewmen inspected and issued an I-95 Conditional Landing section 240 of the Act, as this is
the exclusive procedure to
Permit*; determine if an alien is
(2) Aliens inadmissible under INA § 212(a)(6)(C) [fraud, removable. [e.g. IN RE:
misrepresentation and false claim to US Citizenship] and REHMAN SAIDUR
2005 WL 649059
INA § 212(a)(7) [lack of valid and/or unexpired entry File: A79 733 663 –
document(s) or other entry document(s) required by the INA [Philadelphia] February 02,
2005, a case where an alien who
at the time of an alien’s entry into the U.S.]; was clearly a crewman was
(3) Stowaways, unless found present in the interior of the U.S. nevertheless admitted as a C-1
without admission or parole after inspection,** alien in transit. In this
unpublished decision the BIA
(4) Aliens ordered removed under INA §235(c); and concluded that the alien
(5) Visa Waiver Program (“VWP”) applicants. crewman was entitled to a 240
hearing.]

c. Any individual falling within the above listed categories in **A stowaway charge against
subparagraph b., which expresses an intention to file for asylum an alien under section
in the U. S. or who expresses a fear of persecution, is referred to 212(a)(6)(d) is not properly
brought in a removal
an Asylum Officer (AO) for an interview. Aliens who are found proceeding, but 212(a)(6)(d)
by the AO to have a credible fear of persecution are placed in charge might be [e.g. IN RE:
RGHEORGHE OLAR 2003
“Asylum Only” proceedings before an IJ. The case is referred to WL 23521847
the IJ by way of a Form I-863, Notice of Referral to Immigration File: A71 498 772 – [New
Judge. Orleans] November 5, 2003, a
case where an alien who was
clearly a stowaway actually
d. The Government serves an alien who has been placed in eluded inspection and illegally
entered the U.S. unbeknownst
proceedings under INA §240 with a charging document called a to immigration inspectors. In
Notice to Appear (“NTA”), Form I-862. The NTA includes the this unpublished decision the
charge(s) against the alien, and the underlying factual allegations BIA concluded that once
apprehended the alien
supporting the charge(s), an advisement of his or her right to stowaway was entitled to a 240
counsel, and information on the date and time of the hearing. hearing.]
The practical effect of an alien appearing before an IJ with an
NTA versus a Notice of Referral to Immigration Judge, is that he
can apply for several different forms of relief from removal,
including asylum, cancellation of removal, adjustment of status,
and voluntary departure.

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VII. INA § 235(d) Authority Relating to Inspections

1. INA § 235(d)(1)

(1) Authority to search conveyances. Immigration officers


are authorized to board and search any vessel, aircraft,
railway car, or other conveyance or vehicle in which they A review of the
believe aliens are being brought into the United States. Department of Homeland
Security Bureau of
Immigration and Customs
a. INA §235(d)(1) provides immigration officers the authority to Enforcement Delegation
“board and search” conveyances at a POE. Additional authority to Number 0001, dated June
search for goods is delegated to immigration officers serving within 6, 2003 clearly indicates
Customs and Border Protection (CBP) through the customs laws that ICE officers/agents
[with appropriate re-
found in Title 19 of the U.S. Code. delegation] may exercise
the powers found in INA §
b. For the purposes of the exercise of this “board and search” authority 235.
it is implied that an officer can stop a conveyance to search it.

c. When conveyances are arriving directly from a foreign territory, an


immigration officer does not need probable cause. Under such
circumstances only minimal suspicion that the conveyance may
contain aliens is needed to justify its boarding and searching.

2. INA § 235(d)(2)

(2) Authority to order detention and delivery of arriving


aliens. Immigration officers are authorized to order an
owner, 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) to
detain 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 an
officer arrives to conduct the inspection.

b. Immigration officers can order individuals who are suspected of


having certain highly infectious/contagious diseases to be detained
until a U.S. public health officer can conduct a medical examination
on the individuals. Such diseases include Cholera, Diphtheria,
Infectious Tuberculosis, Plague, Smallpox, Yellow Fever, and
various viral hemorrhagic fevers such as Ebola. In the alternative,
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Immigration officers can order the owner, agent, master, or others
listed in INA § 235(d)(2) to present the suspected passengers to the
U.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 evidence
of 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 the
enforcement of this chapter and the administration of the
Service.

a. INA § 235(d)(3) gives immigration officers authority to take oaths


from any person (not just an applicant for admission) about an
alien’s privilege to enter, reenter, transit through or reside in the
U.S. This oath can be taken from a USC who has information about
a particular alien’s admissibility or deportability.

4. INA § 235(d)(4)

(4) Subpoena authority. The Attorney General and any


immigration officer shall have power to require by subpoena
the attendance and testimony of witnesses before
immigration officers and the production of books, papers,
and documents relating to the privilege of any person to
enter, reenter, reside in, or pass through the United States or
concerning any matter which is material and relevant to the
enforcement of this chapter and the administration of the
Service, 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 to


subpoena a person’s attendance, testimony, or documents relating to
an alien’s privilege to enter, reenter, reside in, or pass through the
U.S. or relating to the enforcement of the INA.

CLASSROOM EXERCISE
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b2High

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VIII. INA § 287 Powers of immigration officers and employees

INA § 287 relates almost exclusively to “interior enforcement efforts,” in other


words, well beyond POEs. Although most of the authorities dealing with
arriving aliens and POEs are found in INA § 235, some are found in INA § 287
too.

1. INA §287(c)

(c) Search without warrant. Any officer or employee of the


Service authorized and designated under regulations prescribed by
the Attorney General, whether individually or as one of a class, This search authority
shall have power to conduct a search, without warrant, of the does not apply to
person, and of the personal effects in the possession of any person USCs, as they are not
seeking admission to the United States, concerning whom such seeking admission to
officer or employee may have reasonable cause to suspect that the U.S. and they are
grounds exist for denial of admission to the United States under not subject to grounds
this Act which would be disclosed by such search. of inadmissibility.

a. KEY NOTE: Although this authority is found in INA §287, it is


only to be used at the border or its functional equivalent, and
then 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 equivalents”
including searching at an established station near the border, at a
point marking the confluence of two or more roads that extend
from the border, or a search of passengers and cargo of an
airplane at an international airport where the plane had arrived
from a non-stop flight that originated in a foreign country.

There is no fixed distance in mileage from the border for this


border search to occur, for example, the power can be used at
any international airport when airlines arrive in the U.S. after
non-stop flights from foreign territory. The U.S. Supreme Court
further held in case United States v. Brignoni-Ponce, 422 U.S.
873 (1975) that a border search under INA § 287(c) can be
conducted away from the actual border or at the “functional
equivalent” of the border only when certain conditions exist:

1. Reasonable certainty that the object of the search has just


crossed the border,
2. The search takes place at the first practical point after the
border 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, constant


surveillance of the object in question may be necessary, to
articulate that there was no opportunity for the object to change
materially. The success of some enforcement operations requires
the watch of a person (and/or personal effects) until a certain
meeting point or destination is reached.

Search at the border of


respondent's suitcase
carried by U.S. citizen
friend, where respondent
was not present, and
seizure there from of
respondent's Argentine
b5 passport, occurring in the
course of routine customs
border inspection does not
exceed the Service's
authority under section
287(c) of the Immigration
and Nationality Act.
[See, Matter of Bulos 15 I.
& N. 645 (BIA 1976)]
b. An immigration officer does not need probable cause to conduct
this search. The immigration officer must have reasonable cause
to suspect that a ground of inadmissibility will exist or be
disclosed after searching a alien or an alien’s personal effects.

c. This search can be conducted without a warrant.

d. Historically, Legacy Customs Inspectors were limited to the


inspection 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 to
the alien’s purpose and intent to enter the U.S. Today the CBP
Officer at a POE benefits from both legacy authorities and thus
has expansive search authority at the POE.

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

INA § 235(a)(3) provides for inspection by immigration officers of all


aliens including alien crewmen who are applicants for admission or
otherwise seeking admission or readmission to or transit through the U.S.
Since the formation of the Department of Homeland Security (DHS), such
inspection at ports-of-entry is within the exclusive purview and
responsibility of immigration officers serving within Customs and Border
Protection (CBP).

INA § 235(d) authorizes such officers to carry out this inspection, to board
any vessel, aircraft, railway car, or other conveyance or vehicles, which
they believe is bringing aliens into the U.S.
A review of the
INA § 252 specifically addresses crewmen and their conditional landing Department of
permits (“Form I-95”). [See, 8 CFR § 252.1(e)] While the regulations Homeland Security
[8 CFR § 252.2(a)] dating back to March 1997 indicate “any immigration Bureau of Immigration
officer” may exercise the authority of INA § 252(b), subsequent to the and Customs
disestablishment of INS and the formation of DHS, the delegation of Enforcement
previous authorities resulted [to date] in CBP having the exclusive right to Delegation Number
exercise authority under INA § 252. Crewmen who were granted a 0001, dated June 6,
conditional landing permit prior to April 1, 1997, and who failed to depart 2003 clearly indicates
are subject to removal proceedings under section 240 of the ACT. Since that at this time ICE
April 1, 1997, crewmen have been removable without a hearing [per of INA does not have
§ 252(b)] and the statutorily ineligible to have any decision regarding their authority to exercise
inspection or removal reviewed by an IJ in an INA § 240 removal the powers found in
proceeding [See, 8 CFR § 252.2(b)]. The decision of whether to issue the INA § 252.
crewmen a conditional landing permit or permission to leave the vessel or
aircraft rests solely with the inspecting officer.

1. INA § 252(b)

(b) Revocation; expenses of detention. Pursuant to regulations


prescribed by the Attorney General, any immigration officer may, in
his discretion, if he determines that an alien is not a bona fide
crewman, or does not intend to depart on the vessel or aircraft which
brought him, revoke the conditional permit to land which was granted
such crewman under the provisions of subsection (a)(1) of this
section, take such crewman into custody, and require the master or
commanding officer of the vessel or aircraft on which the crewman
arrived 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 to
the 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 in
this section shall be construed to require the procedure prescribed in
section 240 of this Act to cases falling within the provisions of this
subsection.

a. After a crewman has been granted or denied a conditional landing


permit under INA § 252(a), only an authorized immigration officer
can invoke authority provided in INA § 252(b).

b. This authority is often used for “crew control” or when re-checking


vessels after they have been inspected and before they depart from
a U.S. port on a direct route to a foreign territory to ensure that
those aliens who were ordered to be on board the vessel are in fact
on the vessel.

c. This authority can be used if the inspector encounters a crewman


who does not have any intention of departing on the vessel or
aircraft of arrival or is a malafide crewman.

d. Under INA § 252(b), a CBP Officer has authority to revoke a


previously granted conditional landing permit and take that
crewman into custody. Once an officer orders the crewman to be
removed from the U.S., the master or commanding officer of the
vessel or aircraft is required to detain the crewman.

e. The transportation line bears the expense of detention and removal


of the crewman.

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

g.
b5

b5
stay
[maximum 29 days]. A crewman who is denied a conditional
landing permit after inspection, but somehow sneaks into the
United States undetected, is not within the reach of INA § 252(b),
but is nevertheless considered an absconder and should be tendered
to CBP, who will return him to the shipping line for removal from
the U.S. and also access a penalty under INA § 252(a). A crewman
who eludes inspection and sneaks into the Unites States is
considered 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 officer


can have with the public at a place other than the border: consensual
encounter, investigative stop and arrest.

Regardless of the type of encounter, officers should always identify


themselves as officers and perform their duties in a professional manner.

1. Consensual Encounter

a. A consensual encounter occurs when the individual approached The Fourth Amendment is
believes that he or she is free to walk away from and decline to not implicated when
officers merely approach
speak to the officer. and question a person, as
long as the encounter is
b. Remember, that an officer, like any other person, has the right to consensual in nature and
ask questions of anyone as long as the officer does not restrain does not involve coercion
the individual’s freedom to walk away. Properly done, a or the restraint of liberty.
[See, U.S. v. Jones, 990 F.
consensual encounter with a person will not constitute a seizure 2d 405 (8th Cir. 1993)]
under the 4th Amendment. Courts have held that actual direct
physical contact impeding an alien’s departure, and even
constructive restraint [e.g. by show of force, etc.] will convert a
consensual encounter into a constitutionally protected seizure.

c. Immigration officers should address questions to individuals in a


way that promotes cooperation.

d. Examples of consensual versus non-consensual encounters:

1. Officer John who talks in a friendly tone, displays relaxed


body language, and is congenial versus Officer Jack who
talks in a demanding and authoritative tone and orders
compliance while taking an aggressive stance.
2. Officer John who asks to talk to subject and informs the
subject that he is free to leave versus officer Jack who
orders the subject to remain and answer questions.
3. Officer John who requests identification and explains the
reason for questioning versus officer Jack who accuses the
subject of a crime.

2. Investigative Stops
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A stop for investigatory
purposes must be limited: it
a. An investigative stop occurs when a reasonable person would must be temporary and last no
believe that he was not free to leave in light of all of the longer than necessary to effect
surrounding circumstances. A vehicle stop is always considered a the progress of the stop. An
investigatory stop, which lasts
seizure for the purposes of 4th Amendment analysis. too long turns into a “defacto”
arrest, but no bright line,
b. The U.S. Supreme Court has ruled that police officers may in exists determining when this
occurs. There is no hard and
appropriate circumstances and in an appropriate manner, fast limit on the permissible
approach and temporarily detain a person for purposes of length of an investigative
investigating possible criminal behavior even though there is no detention. Rather, the test is
whether the detention is
probable cause to make an arrest. [See, Terry v. Ohio, 392 U.S. 1 temporary and whether the
(1968)] police acted with dispatch to
quickly confirm or dispel the
suspicions that initially
1. The Court in Terry distinguished an investigative “stop” induced the investigative
from an arrest, and a “frisk” of the outer clothing for detention. For example,
weapons from a full-blown search for evidence of a crime. fixed checkpoints by the
police or roadside detentions
2. The Court in Terry also stated that because a person may are not arrests. They are
be armed, police officers should have the power to “frisk” presumptively temporary and
the outer clothing for weapons, where the officer’s brief. Similarly, when a
person is merely approached
experience leads the officer to reasonably conclude that the by a police officer and
person is or may be armed and dangerous and nothing questioned about his or her
dispels the officer’s reasonable fear for his safety or the identity and actions, this is
only an accosting, not an
safety of others. This kind of seizure is justified in part, arrest. While a "seizure" in
because a “stop” and a “frisk” are considered to be “minor the constitutional sense occurs
inconveniences” in the interest of effective law when a police officer stops
and frisks a citizen, such an
enforcement. encounter—commonly called
a "Terry stop"—does not
constitute an arrest. [See,
5 Am. Jur. 2d Arrest § 5]

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c. To effect an investigative stop the officer must have reasonable
suspicion based on “articulable facts” that the person being
questioned is or is attempting to be engaged in a criminal or
administrative offense within the officer’s jurisdiction. Reasonable
suspicion is defined as “a particularized and objective basis,
supported by specific and articulable facts, for suspecting a person
of 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-abiding
individuals in a given area.

e. “Racial profiling” at its core concerns the invidious use of race or Racial profiling is the
inclusion of race as a primary
ethnicity as a criterion in conducting stops, searches, and other law determinant in the
enforcement investigative procedures. It is not merely wrong, but characterization of a persons
also ineffective. You may not use race or ethnicity as a selection considered likely to commit a
particular type of crime.
criterion for an investigative stop unless you have received specific Towards the end of the 20th
information that a suspect is of a certain race. [See, “Department of century in the United States,
Homeland Security’s Commitment to Race Neutrality in Law the practice fell into disfavor
with the general public as
Enforcement Activities” memorandum dated June 1, 2004]. abuses by law enforcement
came to light. Criminal
f. There is no set time limit for the length of an investigative stop. The Advocates are against the use
of racial profiling tactics by
officer must act with due diligence in resolving the particular the police. They argue that the
suspicion. Due diligence is characterized by steady, earnest, disproportionate number of
energetic and attentive application and effort toward a convicted minorities is due to
"racial profiling".
predetermined end. Where an officer is proceeding diligently
toward making a probable cause determination, courts are likely to See,
find that the officer’s conduct is reasonable even when events
beyond the officer’s his control caused delays. The officer’s http://en.wikipedia.org/wiki/R
acial_profiling
investigation, and thus the duration of the detention, should be
geared toward confirming or dispelling the suspicion of criminal
activity. Questioning is generally the primary method used to
accomplish the task.

g. If the officer develops probable cause to believe an object is


contraband or evidence of a crime, the officer the officer may
permanently seize the object. Similarly, if the officer develops
probable cause that a person is committing or has committed a
crime, he may permanently seize (arrest) the person.

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3. Arrest
Under totality of the
circumstances, questioning
a. An arrest occurs when a reasonable person in the suspect’s situation of defendant by Immigration
would have believed he was in custody (under arrest). and Naturalization Service
(INS) agent constituted
b. In deciding whether an intrusion by an officer is considered an interrogation for Miranda
purposes; after defendant, a
“arrest,” the courts have considered the following factors: citizen of China, was
arrested in home of
1. the degree and manner of force used; suspected smuggler of
2. whether the suspect was moved to a new location, and the aliens, agent questioned him
about how he arrived in
justification for the move; Guam, questioning was done
3. length of detention of the suspect; in connection with
4. whether suspect was searched; investigation of suspected
5. whether Miranda or administrative rights were given; smuggler, prosecutor was
willing to pursue charges
6. whether the suspect was booked and/or fingerprinted; against defendant in order to
7. the words used, the tone of voice and general demeanor of procure defendant's
the officer. testimony against suspected
smuggler, and defendant was
questioned in district in
c. Probable cause is needed to arrest a suspect in a criminal or which there was a practice
administrative situation. Probable cause is defined as “[a] of prosecuting violations of
reasonable ground to suspect that a person has committed or is statute criminalizing
improper entry into United
committing a crime or that a place contains specific items connected States by aliens. [See,
with a crime.” Black's Law Dictionary (7th ed. 1999) U.S. v. Chen, 439 F.3d 1037
C.A.9 (Guam 2006)]
d. Arrests can be made without a warrant if consent or exigent
circumstances exist.

e. Simultaneous Arrests
Where an Alien has been
1. Officers are tasked with enforcing both administrative and Advised of His
criminal laws and regulations. In some instances, there Administrative Rights
will be probable cause to believe that the suspect has under 8 C.F.R. § 287.3,
committed both administrative and criminal offenses at the and an Officer Wants to
Preserve the Alien’s
time of arrest. For example, an officer encounters a group
Statements for Criminal
of aliens at a gas station. During the course of questioning Prosecution, the Officer
he determines that they all entered illegally “through the Must Both Advise the
hills” that very day. Several aliens, however, all identify Alien of His Miranda
one particular individual in the group as their foot guide Rights and Must Clarify
and the driver of the car being gassed up at the station. The that the Alien Does, in
Fact, Have the Right to an
officer suspects this individual of illegally smuggling and Attorney at Government
transporting aliens. All of these individuals are subject to Expense If He Cannot
administrative arrest for a violation of section Afford One
212(a)(6)(A)(i) of the INA as aliens present without United States v. San Juan-
admission or parole, however, the person identified as the Cruz, 314 F.3d 384 (9th
Cir. 2002).
foot guide and driver has violated Title 8 U.S. Code
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1324(a) and is therefore likely to be prosecuted for his role
in the smuggling operation.
2. In these circumstances, the alien’s due process rights
concerning the criminal arrest must be observed first.
3. The administrative proceeding may not be used to delay or
circumvent the alien’s constitutional rights.

b5

CLASSROOM EXERCISE

b2High

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b2High

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XI. Returning to INA § 287: Powers of Immigration Officers and
Employees
Pursuant INA 287(a)(1) an
1. INA § 287(a)(1) immigration officer may also
briefly detain for questioning
any alien or person believed to
Powers without warrant. Any officer or employee of the Service be an alien regarding his right
authorized under regulations prescribed by the Attorney General shall to be or remain in the United
States. “The statute has been
have power without warrant-- interpreted to allow
(1) to interrogate any alien or person believed to be an alien as to his immigration officers the right to
seek to interrogate individuals
right to be or to remain in the United States; . . . reasonably believed to be of
alien origin. The minimal
invasion of the privacy of the
a. purpose of an interrogation is to ask questions that will elicit a individual approached for
statement against the interest of the subject. questioning has been found
justified by the special needs
of immigration officials to make
b. For Government purposes, an interrogation is used to: such interrogations. However,
although the statute gives
officers of the Immigration and
1. Determine whether the individual is an alien, and Naturalization Service the
authority to interrogate any
2. Determine whether the individual, if he is an alien, is in the alien as to his right to be in the
U.S. in violation of law. United States, it does not
authorize the interrogation of
the alien concerning criminal
c. There is implied authority given in INA § 287(a)(1) to detain a matters, nor does it condone
harassment.” [63 A.L.R. 180]
person in order to interrogate (investigative stop). To justify the [See, United States v.
stop, the officer must have reasonable suspicion based on articulable Rodriguez-Franco, 749 F2d
1555 (CA 11 Fla. 1985) and
facts that the person is or may be an alien. Interrogation then has as U.S. v. Olivares-Rangel, 324
its purpose the determination of whether any alien so discovered F.Supp. 2d 1218 D.N.M.
2004)]
may be illegally in the U.S. [Note: 2nd Circuit opinion discussed
atright/below] There is a split amongst the
Federal Circuit courts:

d. Examples of the articulable facts may include: In some instances, the


authority of Immigration and
Naturalization Service officials
to conduct warrantless
interrogations has been limited
to situations where such
officials have a reasonable
suspicion, based on specific
articulable facts, that the
person may be an alien who is
illegally in the country. [See,
Marquez v. Kiley, 436 F. Supp.
100 (SDNY 1977) and United
b5 States v. Hernandez, 470 F.
Supp. 1212 (EDNY 1979)]

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e.
b5

Note: There is a difference of opinion amongst a few circuits, which have “The Supreme Court limited
the exercise of the authority
spoken on the issue, regarding the nature of the suspicion. The Second Circuit granted by the statute so that
immigration officers on roving
has said that you must suspect that the person is an illegal alien. The Eleventh patrol in border areas may stop
Circuit has said you need only suspect the person is an alien. Other circuits vehicles only if they are aware
have not addressed the matter so outside the 2nd Circuit we take the of specific articulable facts,
which, together with rational
longstanding viewpoint that the “statute has been interpreted to allow inferences from those facts,
reasonably warrant suspicion
immigration officers the right to seek to interrogate individuals reasonably that the vehicles contain aliens
believed to be of alien origin.” who may be illegally in the
country. Furthermore, the court
said that once an officer has
The rule for roving vehicular stops is different. The published case United reason to suspect that a
particular vehicle may contain
States v. Brignoni-Ponce, 422 U.S. 873 (1975), involved roving Border Patrol aliens who are illegally in the
agents that stopped a vehicle near the border and questioned the occupants country, he may stop the car
briefly and investigate the
about their citizenship and immigration status. The only basis for the stop that circumstances that provoke
was articulated by the agents at trial was the apparent Mexican ancestry of the suspicion, and may question
the driver and passengers
occupants. The Supreme Court ruled that a roving Border Patrol agent could about their citizenship and
stop a vehicle only if that agent is aware of specific articulable facts, together immigration status, as well as
asking them to explain
with rational inferences from those facts, that reasonably warrant suspicion that suspicious circumstances, but
the vehicle contains illegal aliens. Although apparent Mexican ancestry is a that any further detention or
search must be based on
relevant factor in obtaining reasonable suspicion, standing alone, it is consent or probable cause. In
insufficient to stop the individuals. reaching its decision, the court
noted that the Fourth
Amendment applies to all
The authority available to immigration officers under INA § 287(a)(1) should seizures of the person,
including seizures that involve
not be confused with roving vehicular stops or with temporary seizures that only a brief detention short of
traditional arrest, and that as
occur at Border Patrol Immigration Checkpoints. The Supreme Court has with other categories of police
determined that CBP can make routine vehicle stops to inquire into citizenship action subject to Fourth
Amendment constraints, the
and immigration status at reasonably located permanent checkpoints, without a reasonableness of such
warrant, and refer vehicles to secondary citizenship questioning without seizures depends on a balance
between the public interest and
particularized suspicion. [See, United States v. Martinez-Fuerte, 428 U.S. 543 the individual's right to
(1976).] personal security free from
arbitrary interference by law
officers.” [See, 63 American
While not invoking the more exacting requirements imposed by the U.S. Law Reports 180]
Supreme Court in the area of roving patrols, members of the Court have raised
the issue [by way of a dissenting opinion] for the need of a higher threshold in
the worksite enforcement arena. The Court could very easily be asked to
address
once 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 worksite
enforcement world, this authority is available during properly executed site
inspections conducted pursuant to 8 CFR 287.8(f)(1) and (2). Currently such
operations are briefed and conducted pursuant to the Court’s majority opinion in
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I.N.S. v. Delgado, 466 U.S. 210 [i.e. lawful presence in factory followed by
consensual encounters]. Delgado allows for consensual questioning and moving
from person to person in the worksite while in the process of checking status.
No 4th 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/agent
reasonably suspects [based upon 2 or more articulable facts] that an
individual he has encountered is or may be an alien, detention is authorized
to interrogate about lawful presence. Note, however, that ICE has the ability to
require its officers and agents, as a matter of policy, to live by a “higher”
standard than that established by statute, regulation, and case law.
Accordingly, should ICE choose to issue nation-wide guidance for worksite
enforcement operations that required the officer/agent to reasonably suspect the
individual is either an alien unlawfully present in the United States or an alien
with status who is nevertheless inadmissible or removable for the United States
in order to detain (seize under the 4th Amendment) him, such a policy controls
the officer’s/agent’s scope of authority in that instance.

For Special Agents, Deportation Officers, and Immigration Enforcement Agents


accessing areas open to the general public, certain open fields, etc., under
8 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 Service


authorized under regulations prescribed by the Attorney General shall
have 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 regulation
made in pursuance of law regulating the admission, exclusion, expulsion,
or removal of aliens, or to arrest any alien in the United States, if he has
reason to believe that the alien so arrested is in the United States in
violation of any such law or regulation and is likely to escape before a
warrant can be obtained for his arrest, but the alien arrested shall be
taken without unnecessary delay for examination before an officer of the
Service 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 to


conduct 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 interpreted


to mean “probable cause.” Therefore, an officer must have probable
cause to believe that the person is an unauthorized alien in order to
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effect this arrest.

During a routine Service


investigative search of a
c. Pursuant to 8 CFR § 287.5(c)(1), the following immigration officers restaurant, an alien produced
who have successfully completed basic immigration law enforcement two documents (an executed
training [as defined in 8 CFR § 287.1(g)] are authorized and designated warrant of arrest and an order
of supervision) in different
to exercise the arrest power of INA § 287(a)(2): names. The investigator was
justified in believing the alien
1. border patrol agents, including aircraft pilots; to be in the United States in
violation of law and likely to
escape before a warrant of
2. special agents; arrest could be obtained.
Following the arrest the alien
was taken without
3. deportation officers; unnecessary delay for
examination before a Service
4. immigration inspectors [now referred to as CBP Officers]; officer who took an affidavit
from him and obtained an
order to show cause and a
5. adjudications officers; warrant of arrest. The alien's
arrest without a warrant was
not illegal and the documents
6. immigration enforcement agents; produced by him during the
search and the affidavit
7. supervisory and managerial personnel who are responsible for obtained following arrest are
admissible in evidence in
supervising these officers; and deportation proceedings.
[See, Matter of Yam 12 I.
8. other immigration officers who need the authority to arrest aliens & N. 676 (BIA 1968)]
under this section to accomplish their missions, as designated by
the Commissioner of CBP or the Assistant Secretary for ICE

d. To make a warrantless arrest pursuant to INA § 287(a)(2), the


officer 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 for
examination before an officer having the authority to examine aliens
as to their right to enter or remain in the U.S. This officer must be
someone other than the arresting officer, unless the sole exception to
standard practice mentioned in 8 CFR § 287.3(a) is warranted.
Although the regulations do not stipulate the exact personnel for
this, 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 enforcement
responsible for the area where the arrest occurred.

f. An alien arrested under INA § 287(a)(2) must be advised of the


reason for the arrest and of his or her administrative rights.
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Administrative rights differ from the Miranda warning given in
criminal matters. Although the alien has the right to obtain counsel
in administrative matters, the alien does not have the right to counsel
at the government’s expense as the alien does in criminal matters.
Subsequent to an administrative arrest under INA § 287(a)(2) the
alien will be advised of the right to communicate with consular
officers from his home country. The alien will be provided with a
list of free legal services in the district where the proceedings will be
held. The alien will also be advised that any statement made may be
used against him in a subsequent proceeding. [See, 8 CFR §
287.3(c)] Subsequent to a criminal arrest an alien will be advised
that he has the right to remain silent, and that anything he says might
be 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 no
expense [Miranda]. You can see the distinct difference between the
two sets of advisals/warnings.

g. If the alien invokes his right to counsel, an immigration officer can


only ask the alien about “booking information” such as the alien’s
name, date of birth, sex, color of hair and eyes, height, weight, and
U.S. address.

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

XII. INA § 287(a)(4)

(a) Powers without warrant. Any officer or employee of the Service


authorized under regulations prescribed by the Attorney General shall
have power without warrant—-
(4) to make arrests for felonies which have been committed and which are
cognizable 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 the
nearest available officer empowered to commit persons charged with
offenses against the laws of the United States

1. In contrast to INA § 287(a)(2), which allows for the warrantless


administrative arrest of an illegal alien, INA § 287(a)(4) provides for the
warrantless 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 by


imprisonment 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 interpreted


to mean “probable cause.” Therefore, the officer must have probable
cause to believe the person is or has committed a criminal offense
related to the INA to effect this arrest.

5. Pursuant to 8 CFR § 287.5(c)(2), the following immigration officers


who have successfully completed basic immigration law enforcement
training [as defined in 8 CFR § 287.1(g)] are authorized and designated
to 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 for


supervising 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 the
Commissioner of CBP or the Assistant Secretary for ICE

6. Because INA § 287(a)(4) involves criminal matters, Miranda


Warnings must be given prior to any custodial interrogation for a
criminal arrest..

7. The individual who is arrested without a warrant must be taken without


unnecessary delay before a U.S. Magistrate Judge. This will include the
filing of an affidavit and a complaint.

8. Arrests made under INA § 287(a)(4) can also be made with arrest
warrants where the alien is not likely to escape or absent exigent
circumstances. 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 the
offense 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 escaping
before 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 any


person involved in any offense against the U.S. committed in the
officer’s presence, and
b. Subsection (B) addresses the warrantless criminal arrest of any
person involved in any felony against the U.S. if the officer has
reason to believe that the person to be arrested has committed or
is committing such a felony, not necessarily in the officer’s
presence.

2. This authority is commonly referred to as “General Arrest


Authority.” It allows immigration officers to make
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warrantless arrests for criminal violations, other than
immigration law violations. Nevertheless, it extends only to
federal offenses. Officers cannot exercise this authority to
conduct arrests for offenses against any state.

3. The statute indicates that in order for an officer to make an arrest


without 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 the


enforcement 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 a
warrant can be obtained for the person’s arrest.

4. In 2003 the training and authorization for INA § 287(a)(5)(A)


arrest authority was instituted and by regulation it was extended to
those individuals listed in 8 CFR § 287.5(c)(3). Additionally, by
Memorandum dated 11/26/2003 from the Office of the Assistant
Secretary for ICE, ICE Special Agents, Deportation Officers, and
Immigration Enforcement Agents who have successfully
completed the basic immigration law enforcement training
[including by de facto incorporation, those who complete the
Equivalency Training Program (“ETP”)] have been granted the
authority to use INA § 287(a)(5)(A) arrest authority.

5. The regulations in 8 CFR § 287.5(c)(4) say that in order to effect


an arrest under the provisions of INA § 287(a)(5)(B), an officer
must have successfully completed the basic immigration law
enforcement training and have been certified by the Director of
Training as successfully completing a training course
encompassing such arrests and the standards for enforcement
activities as defined in 8 CFR § 287.8. Understand that 8 CFR §
287.5(c)(4) is the exclusive governing regulation for the exercise
of INA § 287(a)(5)(B) authority by immigration officers. The
Assistant Secretary for ICE has specifically withheld permission
from Immigration Enforcement Agents and Deportation Officers
to exercise the arrest authority contained in INA § 287(a)(5)(B).
This is not the case for ICE Special Agents. They can
look beyond Title 8 of the United States Code/8 CFR and site
concurrent “General Arrest Authority” available to them via Title
19 of the United States Code and 19 CFR. Since the
consolidation
of Legacy Customs and Legacy INS into ICE, Legacy Customs Federal Rules of Criminal
Special Agents, cross-trained Legacy INS Special Agents, and Procedure 5(a) and 8

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graduates of the ICE-Special Agent Training Course have all C.F.R. § 287.8(c)(vi)
been authorized to make arrests for felonies, cognizable under require every person
arrested and charged with a
the laws of the U.S., committed outside the officer’s presence criminal violation be
pursuant to § 1589a of Title 19 of the United States Code. brought without
unnecessary delay before a
6. The person arrested may be an alien or a USC. U.S. magistrate judge, a
U.S. district judge, or a
judicial officer empowered
7. The words “reason to believe” in INA § 287(a)(5) have been to commit persons.
interpreted to mean “probable cause.” Therefore, the officer
must
have probable cause to believe the person is an unauthorized
alien in order to effect the arrest.

8. The Miranda Warning must be given prior to any custodial


interrogation for a criminal offense.

9. INA § 287(a)(5) also provides statutory authority for an officer


or employee to carry a firearm, and to execute and serve any
order, warrant, subpoena, summons or other process issued
under the authority of the United States.

Important Note:

8 USC 1324(c) says that the Attorney General has the authority to designate which
immigration officers may make arrests for a violation of 8 USC 1324(a) -
Bringing In and Harboring Certain Aliens (alien smuggling). Pursuant to 8 CFR §
287.5(c)(5) Immigration Enforcement Agents (IEAs) may not at the present time
make arrests for violations of 8 USC 1324(a). This restriction is the result of a
policy decision made when the IEA position was established. INA § 287(a)(4)
authority cannot be used by an IEA to justify the presence of authority to make an
arrest for a violation of 8 USC 1324(a). A related restriction of authority is found
in 8 CFR § 287.5(e)(3) where the Attorney General has given IEAs the authority to
serve warrants of arrest for administrative immigration violations only, and not
immigration related criminal arrest warrants.

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XIV. INA § 287(a)(3)

(a) Powers without warrant. Any officer or employee of the Service


authorized under regulations prescribed by the Attorney General shall U.S. v. Romero-
have power without warrant—(3) within a reasonable distance from Bustamente, 337 F.3d 1104
(9th Cir. 2003)(the
any external boundary of the United States, to board and search for exception for “dwellings”
aliens any vessel within the territorial waters of the United States and also excepts the “curtilage”
any railway car, aircraft, conveyance, or vehicle, and within a surrounding the
distance of twenty-five miles from any such external boundary to have home);U.S. v. Santa
access to private lands, but not dwellings, for the purpose of patrolling Maria,15 F.3d 879 (9th
Cir. 1994).
the border to prevent the illegal entry of aliens into the United States;.
..

1. INA § 287(a)(3) provides officers with the implied authority to stop


and investigate suspicious circumstances within a reasonable distance
of any external boundary of the U.S. where there is reasonable
suspicion based on articulable facts that illegal aliens are being brought
into the U.S.

a. Reasonable distance generally means within 100 air miles of an


external boundary of the U.S. or any shorter distance that may be
fixed by a responsible authority. [See, 8 CFR § 287.1(a)(2)]

b. Territorial waters are 12 nautical miles.

2. U.S. v. Brignoni-Ponce, established precedent for the utilization of the


authority in INA § 287(a)(3):

a. As with INA § 287(a)(1), the officer must be able to substantiate


the stop with more than one articulable fact.

b. During this brief stop, the officer may question the driver and
occupants of a vehicle about their citizenship and immigration
status, ask for an explanation of the suspicious circumstances and
request consent to search the vehicle.

c. In the absence of consent, in order to conduct a search of the


vehicle, an officer must have probable cause to believe that illegal
aliens are being brought into the U.S. in the vehicle to be searched.

3. Because the authority granted in INA § 287(a)(3) extends past the


border to the interior of the U.S., in comparison to detentions and
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searches addressed in INA § 235(d)(1), there is a higher level of
suspicion required to detain individuals for interrogation, and probable
cause or consent is required to conduct this type of search.

4. ICE adopted the Legacy Customs policy on “Emergency Driving”


[Customs Directive No. 4510-018A dated June 21, 2002] and it is
controlling for ICE Special Agents. All other immigration officers are
bound by the 8 CFR regulations on vehicular pursuits which are located
in 8 CFR § 287.8(e). The officers currently designated in 8 CFR §
287.8(e) to engage in vehicular pursuits are CBP employees (Border
Patrol officers (including aircraft pilots) and their supervisors). Until
such time as the Assistant Secretary for ICE creates and publishes an
ICE policy memorandum to the contrary, Immigration Enforcement
Agents and Deportation Officers do not have the authority to engage in
vehicular pursuits.

5. INA § 287(a)(3) also provides officers with the authority to enter onto
private lands (but not dwellings) within 25 miles from any external
boundary of the U.S. for the purpose of patrolling the border.

6. The term “patrolling the border” means “. . .to prevent the illegal entry
of aliens into the United States . . .conducting such activities as are
customary, or reasonable and necessary, to prevent the illegal entry of
aliens into the United States . . .” Border Patrol is tasked with the
primary responsibility of patrolling the border. DHS policy restricts
investigations and apprehensions on premises of schools, places of
worship, or funerals or other religious ceremonies. Enforcement
activities by Border Patrol in these sensitive areas requires prior written
approval from the Chief Patrol Agent except under exigent
circumstances.

7. Pursuant to 8 CFR § 287.5(b), the following immigration officers who


have successfully completed basic immigration law enforcement
training, are authorized and designated to exercise the authority granted
in INA § 287(a)(3):

a. border patrol agents, including aircraft pilots;

b. special agents;

c. immigration inspectors [now referred to as CBP Officers] (at


seaport operations only);

d. adjudications and deportation officers when in the uniform of an


immigration inspector and performing inspections or supervising
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other immigration inspectors performing inspections (seaport
operations only);

e. supervisors and managers of the above named persons;

f. other immigration officers who need the authority to patrol the


border to accomplish their missions, as designated by the
Commissioner of CBP or the Assistant Secretary for ICE.

8. Operations where this authority is used include:

b2High, b7e

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XV. INA § 287(e)

(e) Restriction on warrantless entry in case of outdoor agricultural


operations. Notwithstanding any other provision of this section other
than paragraph (3) of subsection (a) of this section, an officer or
employee of the Service may not enter without the consent of the owner
(or agent thereof) or a properly executed warrant onto the premises of
a farm or other outdoor agricultural operation for the purpose of
interrogating a person believed to be an alien as to the person's right to
be or to remain in the United States.

1. INA § 287(a)(3), general authority to enter onto private lands within


25 miles of the border for the specific purpose of patrolling the
border, provides an exception to the provisions of INA § 287(e).

2. INA § 287(e) prevents officers from walking onto a farm or other


outdoor agricultural operation for the express purpose of asking
people [e.g., employees of the operation] if they have illegally
crossed the border or otherwise have the lawful right to be in the
United States. This provision does not bar authorized persons from
using INA § 287(a)(3) to enter onto private lands, including a farm
or other outdoor agricultural operation, as long as the purpose is to
patrol the border (i.e., line watch).

XVI. INA § 287(b)

(b) Administration of oath; taking of evidence. Any officer or


employee of the Service designated by the Attorney General, whether
individually or as one of a class, shall have power and authority to
administer oaths and to take and consider evidence concerning the
privilege of any person to enter, reenter, pass through, or reside in the
United States, or concerning any matter which is material or relevant
to the enforcement of this chapter and the administration of the
Service; and any person to whom such oath has been administered, (or
who has executed an unsworn declaration, certificate, verification, or
statement under penalty of perjury as permitted under section 1746 of
Title 28) under the provisions of this chapter, who shall knowingly or
willfully give false evidence or swear (or subscribe under penalty of
perjury as permitted under section 1746 of Title 28) to any false
statement concerning any matter referred to in this subsection shall be
guilty of perjury and shall be punished as provided by section 1621 of
Title 18.

1. INA § 287(b) grants the authority to immigration officers to


administer oaths and take evidence from any person (not just an
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applicant for admission) about any person’s privilege to enter,
reenter, pass through or reside in the U.S.

2. This evidence can be taken from, and the oath administered to any
person, including a USC, who has information about another
individual, whether that other individual is an alien or a USC.

3. INA § 287(b) is similar to INA § 235(d)(3) except that INA §


235(d)(3) uses the terms “the privilege of any alien” where INA §
287(b) uses the term “the privilege of any person.”

4. INA § 287(b) also contains provisions for criminal charges of


perjury being brought under Title 18 USC § 1621 for knowingly or
willfully giving false information or swearing to a false statement. For purposes of civil tort
liability, a “law
enforcement officer shall
XVII. Use of Force be construed to be acting
within the scope of his or
Use of force constitutes a seizure under the 4th Amendment of the U.S. her office or employment if
Constitution. To be constitutionally reasonable, use of force must be both the officers takes
necessary and reasonable under the circumstances to carry out the officer’s reasonable action,
including the use of force,
lawful duties. Necessary means the officer must use force in order to to: (1) protect an
accomplish his lawful duties. Reasonable means there are valid reasons for individual in the presence
using that particular degree of force. [See, Graham v. Connor, 490 U.S. 386 of the officer from a crime
(1989)] of violence; (2) provide
immediate assistance to an
individual who has
1. Non-Deadly Force suffered or who is
threatened with bodily
a. Non-deadly force is any use of force other than that which is harm; or (3) prevent the
considered deadly force under 8 CFR § 287.8(a)(2), and its use is escape of any individual
authorized only for those individuals listed in 8 CFR § who the officer reasonably
believes to have committed
287.8(a)(1)(iv) including Special Agents, Immigration Enforcement in the presence of the
Agents, and Deportation Officers. officer a crime of
violence.” [See, Federal
b. Non-deadly force may be used only when a designated officer has Law Enforcement
reasonable grounds to believe that such force is necessary in self- Officers’ Good Samaritan
Act of 1998, § 627 of the
defense, in defense of a fellow officer or third party or when it is
Omnibus Consolidated and
necessary to make an arrest or prevent an escape. Examples include Emergency Supplemental
non-lethal control techniques and devices, such as defensive tactics, Appropriations Act of
blocks, kicks, strikes, pressure points, baton, and Oleum Capsicum 1999, Pub. L. 105-277,
(“OC”) spray, etc. 112 Stat. 2681.]

c. An officer shall always use the minimum non-deadly force


necessary to accomplish the officer’s mission and shall escalate to a
higher level of non-deadly force only when such higher level of
force is warranted by the actions, apparent intentions, and apparent
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capabilities of the suspect, prisoner, or assailant.

2. Deadly Force

a. Deadly force is any use of force that is likely to cause death or


serious
bodily harm, and its use is authorized only for those individuals who
are listed in 8 CFR § 287.8(a)(2)(iii).

b. 8 CFR § 287.8(a)(2) provides that deadly force may be used only


when a designated officer has reasonable grounds to believe that such
force is necessary to protect the officer or other persons from the
present danger of death or serious bodily harm. The Secretary of the
DHS has established and published policy on this subject in a
memorandum entitled “Use of Deadly Force Policy,” dated July 1,
2004. It is intended to set uniform standards for law enforcement
officers (LEOs) and agents of DHS. The policy memorandum
mirrors the general language found in 8 CFR § 287.8(a)(2),
however, it also includes very detailed descriptions that address
specific situations when such force can be used. You cannot use
deadly force solely to prevent the escape of a fleeing suspect. ICE
and CBP law enforcement officers and agents may fire firearms to
disable moving vessels or other conveyances, but a warning to
submit
to the officer’s authority should be given first when feasible and
doing so would not increase the danger to the officer or others. A
task force comprised of DHS headquarters and component
representatives developed this deadly force policy. Agencies within
DHS are permitted to adopt more detailed operational guidance with
DHS approval.

c. Warning shots are not authorized. The only exception is when an


ICE or CBP officer or agent is conducting aviation law enforcement,
and only then as a signal to an aircraft to change course and follow
direction to leave airspace.

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CLASSROOM EXERCISE

b2High

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b2High

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b2High

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Appendix A

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U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
April 28, 2005

Immigration Court Process in the United States

Removal Proceedings, Bond Redeterminations, Asylum, Convention Against Torture

This fact sheet is intended to assist the public’s general understanding of the immigration court process in the
United States. It is not a substitute for legal advice, nor does it constitute any legal opinion by the Department
of Justice. It is not fully inclusive; does not address the many legal, regulatory, and court interpretations that
may affect individual cases; and may be subject to change as new laws and regulations are implemented.
The Executive Office for Immigration Review (EOIR) is responsible for adjudicating immigration cases.
Specifically, under delegated authority from the Attorney General, EOIR interprets and administers federal
immigration laws by conducting immigration court proceedings, appellate reviews, and administrative
hearings. EOIR consists of three components: the Office of the Chief Immigration Judge, which is
responsible for managing the numerous immigration courts located throughout the United States where
immigration judges adjudicate individual cases; the Board of Immigration Appeals (BIA), which primarily
conducts appellate reviews of immigration judge decisions; and the Office of the Chief Administrative
Hearing Officer, which adjudicates immigration-related employment cases. EOIR is committed to providing
fair, expeditious, and uniform application of the nation's immigration laws in all cases.
Immigration judge decisions are administratively final unless the case is appealed to the BIA. BIA decisions
are binding unless modified or overruled by the Attorney General or a federal court.

Removal Proceedings

The most common type of proceeding before EOIR is the removal hearing. In these hearings, the agency that
is responsible for enforcing federal immigration laws, the Department of Homeland Security (DHS), charges
and must prove that an alien is in the United States unlawfully and should be removed. EOIR does not have
jurisdiction over an alien’s case unless DHS files charging documents with EOIR.
If DHS charges an alien with an immigration law violation, it serves the alien with a charging document,
known as a Notice to Appear, ordering the individual to appear before an immigration judge. The Notice to

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Appear also is filed with the immigration court having jurisdiction over the alien, and advises the alien of the
nature of the proceedings, the alleged immigration law violations, the privilege of being represented by an

attorney at no expense to the government, and the consequences of failing to appear at scheduled hearings.
Generally, immigration court proceedings involve an initial “master calendar” hearing and, subsequently, an
“individual” hearing. During the master calendar hearing, the immigration judge ensures that the alien
understands the immigration violation charges and provides the alien information on available “pro bono”
(free of charge) or low-cost legal representation resources in the area. During the individual hearing, the
merits of the case are discussed before the immigration judge by the alien, or the alien’s legal representative,
and the DHS attorney who is prosecuting the case. In most cases, the immigration judge issues an oral
decision at the conclusion of the individual hearing.

Once a case is completed, if either the alien or DHS disagrees with the immigration judge’s decision, either
party or both parties may appeal the decision to the BIA. Information concerning appellate practice before the
BIA is available in BIA’s Practice Manual and the Questions and Answers Regarding Proceedings Before the
Board. If the alien disagrees with the BIA’s ruling, the alien may file an appeal in the federal court system. If
DHS disagrees with the BIA’s ruling, in rare instances, the case may be “certified” (referred) to the Attorney
General for review.

Bond Redeterminations

Another common proceeding is the bond redetermination hearing for aliens who are detained by DHS but
have pending immigration hearings with EOIR. Eligible aliens can ask an immigration judge to reduce the
amount of bond set by DHS, or to set a bond if DHS has determined that no bond should be set.
Relief from Removal
While almost all hearings deal with the issue of removal from the United States, the outcome of many
hearings depends on the availability of relief from removal, if any. Immigration law provides relief from
removal to aliens who meet specific eligibility criteria. In most removal proceedings, aliens concede that they
are removable, but then apply for one or more forms of relief from removal. In such cases, aliens must prove
that they are eligible for relief, such as asylum, adjustment of status, cancellation of removal, or other
remedies provided by immigration law.

Asylum

Asylum protection provides relief from removal to those individuals who are unable or unwilling to return to
their country of nationality because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
When an individual seeks asylum during a removal proceeding, the immigration judge hears the applicant’s
claim and also hears any concerns about the validity of the claim raised by the government, which is
represented by a DHS attorney. The immigration judge then makes a determination of eligibility. If the
applicant is not found eligible for asylum, the immigration judge determines whether the applicant is eligible
for any other forms of relief from removal and, if not, orders the individual removed from the United States.

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Within 30 days of receiving a denial decision from an immigration judge, the applicant may appeal to the
BIA. If the BIA affirms the immigration judge’s denial decision, the applicant may file an appeal with the
federal court system.

Expedited Removal

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) mandates that aliens
who arrive at a U.S. port of entry without travel documents or present fraudulent documents must be detained
and placed in expedited removal.
The expedited removal process allows an immigration inspector to remove from the United States certain
classes of aliens who are inadmissible. However, no aliens can be expeditiously removed from the United
States until they are read a sworn statement and acknowledge that they understand it, and are questioned
whether they have a concern or fear of being returned to their home country.
Aliens who express a fear of persecution during the expedited removal process receive a “credible fear”
interview with an asylum officer from the U.S. Citizenship and Immigration Services in DHS.
Aliens who are not found to have a credible fear of persecution by an asylum officer may request that an
immigration judge review the asylum officer’s negative determination prior to their removal from the
country. This review must be concluded within 24 hours whenever possible, but in no case later than 7 days
after the initial determination by the asylum officer. The review is limited solely to whether the aliens have a
credible fear of persecution.
Those persons found to have a credible fear are referred to EOIR for removal proceedings in which they may
apply for asylum before an immigration judge.

Convention Against Torture Protection

Convention Against Torture (CAT) protection relates to the obligations of the United States under Article 3 of
the United Nations Convention Against Torture––an international treaty provision designed to protect persons
from being returned to countries where they face torture. Under Article 3, the United States agrees not to
“expel, return, or extradite” a person to another country where he or she would be tortured.
CAT provides two separate types of protection: “withholding of removal” and “deferral of removal.” Both
provisions ensure that a person is not returned to face torture, but they do allow the government to remove the
person to a third country where he or she would not be tortured.
Withholding of removal prohibits an alien's return to a specific country. Withholding of removal can be
terminated only if the case is re-opened and the DHS establishes that the alien is not likely to be tortured in
that country.
Deferral of removal is a more temporary form of protection. Deferral of removal is granted to aliens who
likely would face torture but who are ineligible for withholding of removal––for example, certain criminals
and persecutors. Deferral of removal is more easily and quickly terminated if the individual no longer is
likely to be tortured in the country of removal. It also allows an individual who is subject to detention to be
detained.
CAT protection is not the same as asylum. The major differences are:
Individuals granted asylum can file for permanent resident status after 1 year and an asylee’s immediate
family members may be granted the same status. CAT protection does not grant either permanent resident
status or the ability to bring family members to the United States.

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Persons who claim asylum must establish a “well-founded” fear of persecution, based on one of five grounds:
race, religion, nationality, membership in a social group, or political opinion. CAT does not require that the
torture be feared on account of those five grounds, but applicants are required to establish that it is “more
likely than not” that they would be tortured if removed to a specific country.
Not all types of harm that qualify as persecution necessarily constitute torture.
For those who meet the respective standards, a grant of asylum is discretionary while CAT protection is
mandatory.
Persons with serious criminal or terrorist backgrounds, as well as persecutors, cannot be granted asylum.
Under CAT, such persons will not be returned to torture, although they may be subject to detention where
appropriate.
CAT claims generally are determined by EOIR immigration judges during regular immigration removal
proceedings. Immigration judge decisions regarding CAT may be appealed to the BIA.

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U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041
August 3, 2004

Forms of Relief From Removal

The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three
components which adjudicate matters involving immigration law matters at both the trial and appellate level.
Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53
Immigration Courts nationwide conduct proceedings and decide individual cases. The agency includes the
Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of
the Chief Administrative Hearing Officer, which handles employment-related immigration matters.
This fact sheet summarizes the most frequently requested forms of relief that are available to an alien who has
been found to be removable. These descriptions are not fully inclusive and do not encompass the many
regulatory and court interpretations that determine actual applicability of relief in an individual case. Also,
the descriptions that follow are subject to change since Congress may legislate new laws. Accordingly, the
following summaries are intended only to assist the public’s general understanding of the types of relief from
removal, and interested parties should thus refer to controlling law and regulations for a precise and complete
understanding of the topics presented.

Discretionary Relief

Once an alien in proceedings is found to be removable, he or she, if eligible, may request one or more types of
discretionary relief. This section describes some types of discretionary relief that are available during a
hearing; administrative relief and judicial review after a hearing is completed are discussed below. The alien
has the burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves
such relief as an exercise of discretion.

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Voluntary Departure

Voluntary departure is the most common form of relief from removal and may be
granted by Immigration Judges, as well as the Department of Homeland Security (DHS), which absorbed the
functions of the former Immigration and Naturalization Service. Voluntary departure avoids the stigma of
formal removal by allowing an otherwise removable alien to depart the United States at his or her own
personal expense and return to his or her home country, or another country if the individual can secure an
entry there. Immigration Judges will provide aliens information on the availability of this form of relief when
taking pleadings. It is important to note that aliens granted voluntary departure must depart within the time
specified by the Immigration Judge. Although an Immigration Judge has the discretion to set a shorter
deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart
within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60
days. In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the
BIA usually will extend an earlier grant of voluntary departure for 30 days. As with other forms of
discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted
voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms
of relief.

Cancellation of Removal

This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-
permanent residents. For lawful permanent residents, cancellation of removal may be granted if the
individual:
Has been a lawful permanent resident for at least 5 years;
Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
Has not been convicted of an “aggravated felony,” a term that is more broadly defined within immigration law
than the application of the term “felony” in non-immigration settings.
Cancellation of removal for non-permanent residents may be granted if the alien:
Has been continuously present for at least 10 years;
Has been a person of good moral character during that time;
Has not been convicted of an offense that would make him or her removable; and
Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her
immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or
lawful permanent residents.
It is important to note that different standards are used in determining eligibility for victims of domestic
violence.

Asylum

Under section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion,
grant asylum to an alien who qualifies as a “refugee.” Generally, this requires that the asylum applicant
demonstrate an inability to return to his or her home country because of past persecution or a well-founded
fear of future persecution based upon his or her race, religion, nationality, membership in a particular social
group, or political opinion. However, an alien may be ineligible for asylum under certain circumstances,
including having failed to file an asylum application within an alien’s first year of arrival in the United States,
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being convicted of an aggravated felony, or having been found to be a danger to national security. Similar
forms of relief are Withholding of Removal and applications under the United Nations Convention Against
Torture.

Adjustment of Status

This form of discretionary relief is available to change an alien’s status from a non-immigrant to a lawful
permanent resident. Aliens who have been previously admitted into the United States can apply to DHS for
adjustment of status, while aliens in removal proceedings apply before an Immigration Judge. Several
conditions must be met, including that the alien is admissible for permanent residence and an immigrant visa
is immediately available at the time of application. Aliens who qualify for visas allowing an adjustment of
status are often petitioned for by a spouse (or another family member) or an employer. Certain individuals,
including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary
departure, and those who were ordered removed may be ineligible for adjustment of status.

Administrative and Judicial Relief

Motions to Reopen or Reconsider

An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an
Immigration Judge or the BIA. The central purpose of a motion to reopen is to introduce new and additional
evidence that is material and that was unavailable at the original hearing. A motion to reconsider seeks a
reexamination of the decision based on alleged errors of law and facts. Unless an exception applies, a party
may file only one motion to reopen and one motion to reconsider. With a few exceptions, a motion to reopen
proceedings must be filed within 90 days of the final removal order, while a motion to reconsider must be
filed within 30 days of the date of the final order. The filing of such motions does not suspend the execution
of the removal decision unless a stay is ordered by the Immigration Judge, the BIA, DHS, or the alien seeks to
reopen an in absentia order (a decision made when the alien was absent at the proceeding).

Stay of Removal

A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion. Depending
on the situation, a stay of removal may be automatic or discretionary. An alien is entitled to an automatic stay
of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an
appeal is pending before the BIA, or while a case is before the BIA by way of certification. Except in cases
involving in absentia orders, filing a motion to reopen or reconsider will not stay the execution of any decision
made in a case. Similarly, filing a petition for review in Federal court also does not result in an automatic stay
of a removal order. Thus, a removal order can proceed unless the alien applies for and is granted a stay of
execution as a discretionary form of relief by the BIA, Immigration Judge, DHS, or a Federal court. Such a
stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the
Immigration Court, the BIA, or an appeal to a Federal Circuit Court.

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Administrative Appeal

The BIA is the highest administrative body with the authority to interpret Federal immigration laws. The BIA
has jurisdiction to hear appeals from decisions of Immigration Judges and certain decisions of DHS. Either an
alien or DHS may appeal a decision from the Immigration Judge. In deciding cases, the BIA can dismiss or
sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the
Attorney General for a decision. A precedent decision by the BIA is binding on DHS and Immigration Judges
throughout the country unless the Attorney General modifies or overrules the decision. With respect to the
filing deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the
date it was issued by the court.

Judicial Review

The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from
the BIA. However, subsequent laws have substantially restricted judicial review of removal orders. An alien
has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the
Court of Appeals. The procedures and applicability of judicial review in immigration cases are complex and
governed by a number of court decisions and interpretations that, in many circumstances, are not clearly
resolved. For an understanding of how judicial review might apply in a specific case, qualified legal counsel
should be consulted.

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