– memorandum by Under Secretary Asa Hutchinson, 10/18/04

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 U.S. Department of Homeland Security
Washington, D.C. 20528

October 18, 2004 
Homeland Security

MEMORANDUM TO:  

Robert C. Bonner
Commissioner
U.S. Customs and Border Protection

Michael J. Garcia
Assistant Secretary
U.S. Immigration and Customs Enforcement

FROM: 

Asa Hutchinson
Under Secretary for Border and Transportation Security

RE: Detention Prioritization and Notice to Appear Documentary Requirements

This memorandum provides for the detention of aliens and outlines documentary requirements that must be met when transferring custody of aliens to Immigration and Customs Enforcement (ICE), Office of Detention and Removal Operations (DRO). The guidance in this memo supersedes all outstanding guidance regarding priorities for the detention of aliens within Border Transportation Security (BTS). All BTS personnel must adhere to legal authorities and the procedures set forth below in making decisions regarding whether to detain an alien. [Footnote 1 – This policy does not supercede any requirement to release an alien under Zadvyas v. Davis, 533 U.S. 678 (2001) and implementing guidance in 8 C.F.R. sections 241.4, 241.13 and 241.14 nor does it apply to unaccompanied juveniles.]

I. Detention Priorities

The following guidelines provide priority categories for the detention of aliens subject to detention. An alien being considered for detention should be placed in the highest numbered priority within the top category possible (i.e., an alien found to have a credible fear of persecution with an aggravated felony conviction would still meet the requirements of Mandatory, #2). In the case of mandatory detention, the Director of ICE DRO is to heed the guidelines strictly. In all other cases, the DRO Director retains the discretionary authority with respect to allocation of bed space and other detention-related resources. In all cases, the DRO Director is to heed these guidelines to the greatest extent possible when determining detention priorities.

All such aliens must be detained unless they fall within one of the exceptions to mandatory detention. There are not priority designations among categories of cases subject to mandatory detention. Questions as to whether a given alien falls under one of these categories and must be detained should be directed to local legal counsel.

Mandatory

• Aliens subject to mandatory detention under INA 236A [Footnote 2 – Prior approval of the ICE National Security Unit and the ICE Office of the Principal Legal Advisor is required before charges may be brought under either INA section 212(a)(3) or INA section 237(a)(4).]

• Aliens in expedited removal (INA section 235) with limited exceptions [Footnote 3 – Not all aliens in expedited removal proceedings are subject to mandatory detention, however. See, for example 8 C.F.R. sections 235.3(b)(2)(iii), 235.3(b)(5)(i) allowing for parole in limited circumstances of medical emergency, or where necessary for a legitimate law enforcement objective.]

• Aliens subject to mandatory detention in removal and deportation proceedings under INA 236(c) [Footnote 4 – Note that INA 236(c)(2) authorizes release to provide for protection of a witness, etc., where the alien does not pose a danger to the safety of others or to property and is likely to appear for any scheduled proceedings.]

• Aliens who have final orders of removal subject to mandatory detention under INA section 241(a)(2), whether ordered removed pursuant to INA 238 or 240 proceedings [Footnote 5 – This includes aliens ordered removed under INA 240 and criminal aliens ordered removed under INA 238. These aliens may not be released under any circumstances during the 90-day removal period set forth in INA 241(a)(2). Following the 90-day period, the continued detention of such aliens should be determined pursuant to criteria in Zadvyas, supra and implementing guidance in 8 C.F.R. sections 241.4, 241.13, and 241.14.

High Priority

1. National Security Interest aliens including aliens who are subject to an ongoing national security investigation or who, by virtue of specific information or intelligence specific to the alien in question raise a national security concern, as identified either by 1) the Joint Terrorism Task Force, 2) Immigration and Customs Enforcement, or 3) by U.S. Customs and Border Protection (CBP). [Footnote 6 – ICE and CBP shall track all cases where the two bureaus disagree on whether a particular alien poses a national security threat. CBP and ICE shall review these cases on a quarterly basis.]

2. Continued detention of aliens with final administrative orders past 180 days on account of special circumstances (i.e. 8 C.F.R. 241.14).

3. Aliens who have been issued final removal orders over 90-days old, where removal is foreseeable.

4. Aliens who present an articulable danger to the community (claimant agency must be able to articulate the danger).

5. Aliens who exhibit specific, articulable intelligence-based risk factors for terrorism or national security concern not solely based on the alien's race, ethnicity, nationality or religion (as identified by either 1) the Joint Terrorism Task Force, 2) Immigration and Customs Enforcement, or 3) by U.S. Customs and Border Protection.

6. Aliens associated with ongoing significant criminal investigations.

7. Remaining criminal aliens not subject to [INA section] 236(c).

8. Aliens whose detention is essential to national border enforcement initiatives.

Medium Priority

1. Suspected alien and narcotics smugglers

2. Aliens who committed fraud

3. Inadmissible, non-criminal aliens (other than expedited removal cases)

Lower Priority

1. Worksite enforcement arrests

2. Final orders (beyond 179 days – not likely to remove)

3. Aliens placed in expedited removal found to have a credible rear and referred for full 240 proceedings

4. Other aliens not subject to required detention.

II. Documentary requirements

Each component must ensure apprehended aliens are processed efficiently and placed in the appropriate and most expedient removal process. (e.g. stipulated, reinstatement, administrative, expedited) At a minimum, the following documents must be completed by the apprehending entity and presented to DRO to ensure each case moves swiftly through the removal process:

[15 items – not transcribed]

To ensure maximum efficiency in the use of the Department's finite detention bed resources, it is imperative that this documentation is prepared and presented. Custody responsibility will not be transferred to ICE/Detention and Removal Operations (DRO) until ICE-DRO verifies that all of the above required documentation has either been provided or has been waived by an ICE/DRO authorizing official at the detention site. The arresting or delivering officer will ensure that detainees turned over to the custody of ICE/DRO are accompanied by any personal items, identity documents, baggage and/or prescription medications in that detainee's possession at the time of arrest.

The requirements I issued in my memorandum of March 30, 2004, Guidance on ICE Implementation of Policy and Practice Changes Recommended by the Department of Justice Inspector General, remain in effect. You are responsible for ensuring implementation of these requirements.