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Statutory AuthorityStatutory Authority
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IntroductionLesson Plan Overview
What is your Authority to act?Statutes
RegulationsImplied authority
Immigration Law Handbook
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Your Mission Find and Remove Aliens
Who Make it to the Interior of the USA
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Your Mission Remove Lawfully
Admitted Aliens Who Break the Rules!
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Your Critical MissionYour Critical Mission Eradicate Threats
to Homeland Security!
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Who is an Immigration Officer?
INA 101(a)(18) 8 CFR 103.1(b)
INA 103: powers & duties of
the Secretary
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Removal Proceedings
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Removal Proceedings
INA 240
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA)
Notice to Appear (formerly OSC)
Filed in Immigration Court
Alien faces factual allegations andadministrative charges from the INA
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Inadmissible under INA 212(a) ?
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Deportable under INA
237(a) ?
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Charging Document
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Charging Document
ICE.090410.000033
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Burden of Proof Under INA
212(a) ?
For those Present Without Inspection and Parolees
Government must first prove alienage
Then, alien must prove prior lawful admission by
clear and convincing evidence, or
In the absence of a prior admission, the alienmust then prove he is clearly and beyond adoubt entitled to admission and is not
inadmissible as charged.
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Burden of Proof Under INA
212(a) ?
For Arriving Aliens
Alien must prove clearly and beyond adoubt that he is entitled to admissionand is not inadmissible as charged.
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Burden of Proof Under INA
237(a) ?
For lawfully admitted aliens
Government must prove by clear and
convincing evidence that he is deportableas charged.
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Burden of Proof Under INA ?
clear and convincing evidence
The Supreme Court has stated thatthe clear and convincingstandard lies between apreponderance of the evidenceand proof beyond a reasonable
doubt. [See, Addington v. Texas,441 U.S. 418, 425 (1979).
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Burden of Proof Under INA ?
What evidence will get the job done?
Some examples include but are not limited to: statements from the alien that they were born in
another country [recorded on the I-213]
foreign birth certificates
an aliens admission regarding foreign birth beforethe immigration judge
certified conviction records showing the alien was
convicted of a crime that would render themremovable under INA 212 or 237.
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Parties to a Removal Proceeding
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APPEALATE REVIEW
ICE.090410.000040
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Sources of Authority
To perform your duties:
International Law [sovereign powers]
The Constitution of the United States
The Immigration and Nationality Act
Title 8 of the Code of Federal Regulations
Federal Courts
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Sources of Authority
To perform your duties:
Board of Immigration Appeals
DHS/ICE Delegations:
DHS Delegation Number 7030.1
DHS Delegation Number 7030.2
ICE Delegation Number 0001
OI/DRO Organizational Delegation Orders
Directives and Policy Memorandum
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Hierarchy of Authority
STATUTORY AUTHORITY
Provided for by law and enacted by statute
DELEGATED AUTHORITY
Authority entrusted to another
Responsibility can not be delegated
IMPLIED AUTHORITY
Authority to act, although not specifically stated
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INA
235 -
INSPECTION
Who is inspected?
Authority to inspect Limitations of inspections
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INA
235(a)(1)
Applicants for admission
Inspection
of
(1) Aliens treated as applicants for admission.
An alien presentin the United States who has not been admitted orwho arrives in the United States (whether or not at a designated port ofarrival and including an alien who is brought to the United States afterhaving been interdicted in international or United States waters) shall be
deemedfor purposes of this Act an applicant for admission.
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INA
235(a)(2) - Stowaways
ICE.090410.000046
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INA
235(a)(2) -
Stowaways (not applicants)
(2) Stowaways.
An arriving alien who is a stowaway is not eligible to apply for admission or tobe admittedand shall be ordered removed upon inspection by an immigrationofficer. Upon such inspection if the alien indicates an intention to apply for asylumunder 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 forasylum 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 anapplicant for admission or eligible for a hearing under section 240.
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Stowaway - INA 101(a)(49)Stowaways: The termStowaways: The termstowawaystowaway means any alien whomeans any alien whoobtains transportation without the consent of the owner,obtains transportation without the consent of the owner,charterer, master or person in command of any vessel orcharterer, master or person in command of any vessel oraircraft through concealment aboard such vessel or aircraft.aircraft through concealment aboard such vessel or aircraft.
A passenger who boards with a valid tickets is not to beA passenger who boards with a valid tickets is not to beconsidered a stowaway.considered a stowaway.
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INA
235(a)(2) -
Stowaways (asylum claims)
Once the alien announces an intention toapply for asylum or a fear of persecution, a
stowaway shall be immediately referred bythe inspecting immigration officer to an
asylum officer for a credible fear interview.
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INA
235(a)(3) -
Inspection
(3) Examination/Inspection
All aliens (including aliencrewmen) who are applicantsfor admission or otherwiseseeking admission or
readmission to or transitthrough the United Statesshall be inspected byimmigration officers.
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INA
235(a)(3)
(continued)
INSPECTION OF ALL ALIENS
Examination for identity and alienage
Inspection to establish admissibility
Applications to lawfully enter U.S.
Are made in person at a
Designated and open port of entry
To a CBP Officer
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INA 235(a)(4) - (application withdrawal)(4) Withdrawal of application for admission.
An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw
application for admission and depart immediately from theUnited States.
ICE.090410.000052
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INA
235(a)(5) -
Sworn Statements (aliens)
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INA
235(a)(5) -
Sworn Statements
(5) Statements.
An applicant for admission may be required to state under oathanyinformation sought by an immigration officer regarding the
purposes and intentions of the applicant in seeking admissionto the United States, including the applicant's intended length ofstay and whether the applicant intends to remain permanentlyor become a United States citizen, and whether the applicant is
inadmissible.
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INA
235(a)(5)
Immigration officer takes evidence andadministers an oath to an applicant for
admission (non USC) about the applicants
admissibility
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ICE.090410.000056
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CLASSROOM EXERCISE
ICE.090410.000057
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ICE.090410.000058
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INA
235(b)(2)(A)
Inspection of other aliens:
(A) [I]n the case of an alien who is an applicant for admission, if theexamining immigration officer determines that an alien seekingadmission is not clearly and beyond a doubt entitled to beadmitted, the alien shall be detained for a proceeding under
section 240 .
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Aliens detained for Section 240 proceedings will appear before anImmigration Judge on a Form I-862 -
Notice to Appear (NTA)
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8 C.F.R.
208.2(c)(1)
Certain aliens are not entitled to a Section 240 hearing. At bestthey get an asylum only hearing before an immigration judge:
- Crewmen
- Stowaways
- INA 101(a)(15)(S) classified aliens
- Aliens removed under Section 235(c) (security related grounds)
- Visa Waiver Program applicants
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INA
235(d)(1) -
board & search
(d) Authority relating to inspections.
(1) Authority to search conveyances.
Immigration officers are authorized to boardImmigration officers are authorized to boardand search any vessel, aircraft, railway car,and search any vessel, aircraft, railway car,or other conveyance or vehicle in which theyor other conveyance or vehicle in which they
believe aliens are being brought into thebelieve aliens are being brought into theUnited States.United States.
ICE.090410.000062
AA POEPOE ll R i i i l i i b blR i i i l i i b bl
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AtAt
POEsPOEs
onlyonly. Requires minimal suspicion not probable cause. Requires minimal suspicion not probable cause
[4[4thth
amendment requirements relaxed at the border].amendment requirements relaxed at the border].
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INA
235(d)(2)
(d)(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 oraircraft bringing an alien (except an alien crewmember) to the United
States
(A) to detain the alien on the vesselor at the airport of arrival, and (B) todeliver the alien to an immigration officerfor inspection or to a medical officer
for examination.
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INA
235(d)(4)
-
subpoenas
(d) (4) Subpoena authority. The Attorney General and any immigration officer shall have power to
require by subpoena the attendance and testimony of witnesses beforeimmigration officers and the production of books, papers, and documents
relating to the privilege of any person 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.(includes USCs)
ICE.090410.000066
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CLASSROOM EXERCISE
ICE.090410.000067
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CLASSROOM EXERCISE
ICE.090410.000068
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CLASSROOM EXERCISE
ICE.090410.000069
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INA 287 Search PowersICE.090410.000070
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INA
287(c)
Search an alien and his personal effects without a warrant
Person must be an applicant for admission to the United States
Immigration Officer must believe ground(s) of inadmissibility will be
disclosed by search
Cannot use this authority to search USCs
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INA
287(c)
Can search at border or atfunctional equivalentofborder (location acts as a border, i.e. airports) when:
- Reasonable certainty object of search just crossed
the border
- Search at first practical point
- No time or opportunity for object of search to have
changed materially since crossing
International airports are functional equivalents of theborder
ICE.090410.000073
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Crewmen
ICE.090410.000074
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CREWMAN INA
252(b)
Conditional permits to land temporarily.
(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 aircrafton which the crewman arrived to receive and
detain him on boardsuch vessel or aircraft, if practicable, and such crewman shall be
removed from the United States at the expense of the transportation line which brought himto
the United States. .
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INA
252(b)
Authority allows the officer to:
Recheck a vessel before departure crew control to see if
crewman returned
Revoke a previously granted conditional landing permit[an I-95 grants 29 days max. per INA 252(a)] and detain on
vessel. Crewman departs on vessel that brought him.
Order Removal - has same effect as IJ
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PRINCIPLE LEVELS OF
ENCOUNTERIn order to properly enforce the elements of INA
287(a) (stop,
detain, arrest) it is important for the officer to know the differentways of encountering an individual. There are 3 principle levels of
encounter that officers face with the public at places other than at the
border:
Consensual encounter
Investigative stops
Arrests
Officers should always identify themselves as law enforcement
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FIRST LEVEL OF ENCOUNTER
Consensual Encounter
Individual is free to walk away
from and decline to speak tothe Officer
Questions can be asked as
long as the officer does notphysically or constructively
impede the persons freedom
of movement
Address questions to promote
cooperation
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SECOND LEVEL OF ENCOUNTER
Investigative Stops
Occurs when person is seized orstopped and reasonable person
would believe that he was not free to
leave
Must have reasonable suspicion
based on articulable facts that
person is engaged in (or attempting)
a criminal or administrative offense
Length of the stop should be limited
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THIRD LEVEL OF ENCOUNTER
Arrest
Under same facts, a reasonable personwould believe he is in custody
Probable cause is required
Warrantless okay with consent orexigent circumstances
Simultaneous Arrests ofcriminal/admin or regulatory
violations or offenses Criminal arrest priority/no misuse of
admin
ICE.090410.000080
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4th Amendment Terms DefinedSeizure
When an officer uses physical force, or a
show of authority, which causes a personto submit to that force or authority.
Detention
Brief, temporary stop as part of aninvestigation for the purpose of limitedinquiry into possible criminal activity or anadministrative violation of the INA.
Arrest Officially taking a person into custody to
have him answer to criminal oradministrative charges.
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4th Amendment Degrees of ProofMere Suspicion Lowest degree of proof; can be equated to
a hunch or gut feeling. Not enough tojustify a detention or arrest. Try
consensual encounter?Reasonable Suspicion
Specific articulable facts that causesuspicion by reasonable and rational
inference that an event has, is, or willoccur.
Probable Cause
Information that a reasonable personwould deduce that an offense [criminal oradministrative] has been or is beingcommitted, and a specific person eithercommitted or is committing the offense.
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CLASSROOM EXERCISE
ICE.090410.000084
CLASSROOM EXERCISE
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CLASSROOM EXERCISE
ICE.090410.000085
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M P INA 287( )(1)
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More Powers -
INA
287(a)(1)
Powers of immigration officers and employees. (a)
Powers without warrant. Any officer or employee of the Serviceauthorized under regulations prescribed by the Attorney General
shall havepower without warrant--
(1) to interrogateany alien or person believed to be an alien as tohis right to be or to remain in the United States; . . .
ICE.090410.000087
INA 287( )(1)
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INA
287(a)(1)
IMPLIED AUTHORITY to DETAIN a person in order to
INTERROGATE (elicit a statement against their interest)
Permits a non-vehicular investigative stop
Must have REASONABLE SUSPICION based on ARTICULABLE
FACTS that the person is or may be an ALIEN (who you may thenquestion to see if he is in the US legally/illegally).
Federal Circuits differ on nature of suspicion.
ICE Policy may dictate different standard in worksite enforcement
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ADMINISTRATIVE ARREST AUTHORITY
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INA 287(a)(2) administrative
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INA 287(a)(2)- administrativearrest authority
Arrest alien without warrant ifreason to believe(i.e. probable
cause) for administrativeviolation related to theenforcement of the INA
Designated Officers only [see list in 8 CFR]
Post-arrest review by another Officer of the Service
Arrest warrant needed absent exigent circumstances or when
alien is not likely to abscond
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IMMIGRATION RELATED FELONY ARRESTS
ICE.090410.000093
INA 287(a)(4) criminal
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INA 287(a)(4) criminalarrests related to INA
Powers of immigration officers and employees. (a) Powers without
warrant. Any officer or employee of the Service authorized under regulationsprescribed by the Attorney General shall have power without warrant--
(4) to make arrests for felonies which have been committed and which arecognizable under any law of the United States regulating the admission,
exclusion, expulsion, or removal of aliens, if he has reason to believe thatthe person so arrested is guilty of such felony and if there is likelihood of theperson escapingbefore a warrant can be obtained for his arrest, but the personarrested shall be taken without unnecessary delay before the nearest available
officer empowered to commit persons charged with offenses against the laws ofthe United States;
ICE.090410.000094
INA 287( )(4)
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INA 287(a)(4) Arrest without warrant forfelonyviolation related to
enforcement of the INA
Person arrested may be alien orU.S. citizen
Designated Officers only [see list in 8 CFR]
Miranda Warning must be given to individual
Taken to U.S. Magistrate for review
Arrest warrant needed absent exigent circumstances or whensubject is not likely to abscond
ICE.090410.000095
IMPORTANT NOTE
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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 USC1324(a) - Bringing In and Harboring Certain Aliens (alien smuggling).Pursuant to 8 CFR 287.5(c)(5) Immigration Enforcement Agents (IEAs) maynot 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 wasestablished. INA 287(a)(4) authority cannot be used by an IEA to justify anarrest for a violation of 8 USC 1324(a). A related restriction of authority isfound in 8 CFR 287.5(e)(3) where the Attorney General has given IEAs theauthority to serve warrants of arrest for administrative immigrationviolations only, and not immigration related criminal arrest warrants.
ICE.090410.000096
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General Arrest Authorityfor Crimes Against the
United States
ICE.090410.000097
INA 287(a)(5) general arrest
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INA 287(a)(5) general arrestauthority (federal crimes) Powers of immigration officers and employees. (a) Powers without
warrant. Any officer or employee of the Service authorized under
regulations prescribed by the Attorney General shall have power withoutwarrant--
(5) to make arrests--(A) for any offense against the United States, if theoffense is committed in the officer's or employee's presence, or (B) forany 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 immigrationlaws 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.
ICE.090410.000098
INA 287(a)(5)
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INA 287(a)(5)Arrest without warrant for any offense against the United States committed
in the Officers presence
Reasonable grounds (i.e. probable cause) that person to be arrested hascommitted or is committing such offense
While the Officer is performing duties related to enforcement ofimmigration laws
Likelihood person will abscond before arrest warrant can be obtained
Miranda Warning must be given
Designated Officers only/General Arrest Training required [see 8 CFR]
NO 287(a)(5)(B) AUTHORITY FOR ANYONE AT THIS TIME.
ICE.090410.000099
INA 287(a)(3) w/o warrant
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INA 287(a)(3) w/o warrant Powers of immigration officers and employees. (a) Powers without
warrant. Any officer or employee of the Service authorized underregulations prescribed by the Attorney General shall have power withoutwarrant--
(3)within a reasonable distance from any external boundary of the UnitedStates, to board and search for aliens any vessel within the territorial
waters of the United States and any railway car, aircraft, conveyance,or vehicle, and within a distance oftwenty-five miles from any such
external boundary to have access to private lands, but not dwellings, forthe purpose of patrolling the border to prevent the illegal entry of aliensinto the United States;
ICE.090410.000100
INA 287(a)(3)
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INA 287(a)(3)
Board and search for aliens without warrant within a reasonable distance [see 8 CFR287.1(a)(2)] from the border
Designated Officers only (Border Patrol Agents, Special Agents, and Immigration Inspectors [read Customs and BorderProtection Officers] at seaports only)
>1 articulable fact to stop. OK to ask persons about citizenship and immigrationstatus, BUT w/o consent you need probable cause to search any vehicle
Patrolling the Border means authority to enter onto private lands but not dwellingswithin 25 miles of the border. [do not forget INA 287(e) prohibitions]
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INA 287(b)
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INA 287(b) Take oaths and consider evidence from any person (includes USC)
About the privilege of any person to enter, re-enter, pass through orreside in the U.S.ANDANDany matter which is material or relevant tothe enforcement of the INA
Differs from both 235(a)(5) and 235(d)(3)
Includes criminal charge for perjury under 18 USC 1621.
Authority available to all Immigration Officers and 287(g) persoAuthority available to all Immigration Officers and 287(g) personnelnnel
Warning/Reminder: Ask onlyMATERIAL andRELEVANTquestions
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USE OF FORCE
ICE.090410.000105
N D dl D dl F
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Non-Deadly vs. Deadly Force
Non-Deadly Force
Force other than that which is deadly force
Used when officer has reasonable grounds to believe force is
necessary: In self-defense
In defense of a fellow officer or third party
When necessary to make an arrest or prevent an escape
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CLASSROOM EXERCISE
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CLASSROOM EXERCISE
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CLASSROOM EXERCISE
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CLASSROOM EXERCISE
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CLASSROOM EXERCISE
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CLASSROOM EXERCISE
ICE.090410.000111
Live Long and Prosper !
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Live Long and Prosper !