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DECEPTION OF A CONGRESSIONAL TASK FORCE DELEGATION TO MIAMI DISTRICT OF THE IMMIGRATION AND NATURALIZATION SERVICE
THURSDAY, FEBRUARY 27, 1997
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 1:04 p.m., in room 2237, Rayburn House Office Building, Hon. Lamar Smith (chairman of the subcommittee) presiding.
Present: Representatives Lamar Smith, Elton Gallegly, Sonny Bono, Edward A. Pease, Christopher B. Cannon, Melvin L. Watt, Howard L. Berman, and Zoe Lofgren.
Also present: Cordia A. Strom, chief counsel; Edward R. Grant, counsel; Judy Knott, staff assistant; and Martina Hone, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
Today's hearing will consider the Congressional Task Force on Immigration Reform's visit to the Miami district of the Immigration and Naturalization Service in June 1995 and the subsequent revelations that the task force was deliberately misled as to conditions at the criminal detention center by INS officials. This hearing will also address the overriding issue of management accountability.
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Last September the subcommittee was briefed by the Inspector General as to the conclusions of his investigation. We were told of the planning of the deception, the carrying out of the deception, and the deliberate attempt by certain INS employees to obstruct the Inspector General's investigation of the deception. The Inspector General laid out the case against 13 INS employees and his recommendations for appropriate disciplinary actions.
We could not predict last September how the Department of Justice would treat the Inspector General's recommendation or how seriously it would view the deliberate deception of Congress. We now know that Assistant Attorney General Stephen Colgate and Assistant Deputy Attorney General David Margolis reviewed the record with deliberation and imposed many strong sanctions. They clearly appreciated the serious misconduct that had occurred. They agreed with 10 of the 13 recommendations of the Attorney General and decided to discipline one additional individual.
The disciplinary measures chosen by Mr. Colgate and Mr. Margolis include termination of employment, demotion, reassignment, and suspension. Due care has been taken today, incidentally, to respect the privacy of the individuals concerned, both now and during the investigatory and disciplinary process.
All that needs to be conveyed is that the penalties are in most cases very strong. They send, as they should, the correct message: That the deception of the public and of Congress by Government employees will not be tolerated.
Clear examples of misconduct were uncovered. Penalties were imposed. Our goal now is to focus our attention on the question of management accountability, what was or was not done by INS management to demonstrate accountability and to accept responsibility for the actions of the INS employees.
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In evaluating the accountability and responsiveness of INS management, the words of Inspector General Bromwich need to be remembered. Last September in testimony before this subcommittee he stated that, ''The INS response to document requests was abysmal.'' He stated that, ''The investigative team was substantially hindered, the investigation significantly delayed, and additional resources spent because numerous INS management officials refused to cooperate with, and some obstructed, the investigation.''
He recalled that one of his investigators believed that, ''Despite her vast experience investigating criminal cases of all sorts in the U.S. attorney's office for the southern district of New York, she had never worked in such a hostile environment.''
The Inspector General went on to state that, as his investigators ''discovered documentary evidence of the deception, the level of cooperation by INS officials diminished,'' and that ''[o]nce damaging documentary electronic mail evidence had been located ... some senior officials became overtly obstructionist .... Despite the Office of the Inspector General's effort to get INS to preserve its records, some e-mail was deleted before the investigators could review it .... Witnesses who did make statements showed on occasion surprising lack of recall.''
The thicket the Inspector General and his staff had to cut through could only have grown so dense as a result of the consistent lack of management accountability and responsiveness. My purpose in mentioning this is forward-looking. We all depend on a well-run INS to promote our national interests. If we bring back the attributes of accountability and responsiveness to the INS, the agency will be one that will deserve our support and respect. And the investigation by the inspector, and the penalties assessed by the Department of Justice, will have been worth the expense and the effort.
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The whole point here is simply to say that there is no gain in wrongdoing, and there is no gain in trying to conceal it. As Shakespeare said, ''Truth will come to light.''
We look forward to hearing from our witnesses today. But before we do, the Chair will recognize Mr. Watt for an opening statement, and with a promise from me not to quote Shakespeare on a regular basis.
Mr. Watt.
Mr. WATT. I didn't know you knew Shakespeare.
Mr. SMITH. Oh, why would that be?
Mr. WATT. I thought you weren't that old.
Mr. SMITH. Oh. [Laughter.]
Mr. WATT. You missed it.
Mr. SMITH. I missed it, I'm sorry.
Mr. WATT. Let me first say I'm delighted with the tone of the chairman's opening statement because--and maybe some of the things I will say in my opening statement won't be necessary if, in fact, the direction that he has indicated is the direction that every member of this committee will take. I was not involved in the first oversight hearing about this matter last September. So all I know about the matter comes from reviewing the Inspector General's report and other documents.
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I want to make it absolutely clear that I am disappointed, disgusted, appalled, whatever word you want to use that's negative about what I have read. Perhaps the right word is sick, and maybe that's influenced by the fact that when I reviewed the Inspector General report yesterday, it was against the backdrop of two other major revelations in The Washington Post. One story on the front page revealed that the CIA warned that there might have been chemical weapons involved in the Persian Gulf, which contradicts the steadfast denial of the Defense Department and the CIA since questions were first raised by veterans' groups in 1993 about possible poison gas exposure during the Persian Gulf war. The DOD and CIA absolutely lied about whether they knew about the presence of chemical weapons.
The second backdrop that I was reviewing the IG's report against was a story about my good friend and now colleague, Alcee Hastings from Florida, in which it was disclosed that during his impeachment hearings when he was a judge, apparently the FBI went out of its way to misrepresent or conceal information. The Justice Department probe has now uncovered evidence that an FBI examiner who worked on the Hastings case vigorously challenged the Bureau's laboratory analysis and a key piece of evidence relating to the judge's truthfulness in a bribery trial in the early 1980's.
Both of those things were in yesterday's paper and point out the very, very serious nature of public officials misrepresenting and covering up and not being straightforward. In a democracy such as ours, the citizens must have absolute faith in the integrity of their government and those who serve them. The behavior outlined in the IG report is an affront to our democracy and undermines its integrity. It's disappointing; it's disgusting; it's appalling. And the last thing I want to do today is to leave any impression whatsoever that I condone it.
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Notwithstanding my outrage, however, I want to urge the members of this subcommittee to proceed with caution. As tempting as it may be, we should not get into the business of micromanaging the disciplinary decisions of the INS, the Justice Department, or any other Federal agency. The Congress of the United States simply is not, and should not ever become, a personnel administrator or a second-guesser of Federal disciplinary procedures.
With regard to the career personnel who are subject to discipline, I believe it is especially important that we proceed with caution, if we are to proceed at all, because the disciplinary process is not complete. The timing of the hearing in that sense is extremely questionable--if that's where we are going, or any member of this committee is going. The disciplinary process is not complete. The penalties which have been assessed are not final. The employees still have appeal or grievance rights. And I'm afraid that if we are overly zealous in our criticism, the Merit Systems Protection Board might actually reverse or mitigate the disciplinary decisions because it may believe that this subcommittee or Members of Congress have unduly influenced the process. The irony then would be that those found most culpable, the ones some of us believe should be most severely punished, will be the very ones we help. Precisely because their penalties are the most severe, they are more likely to be reversed or mitigated by the Merit Systems Protection Board.
I urge the members of the subcommittee, therefore, to proceed with caution on these disciplinary matters. Frankly, I question whether we have any jurisdiction to question the severity of the discipline assessed in this case. In my reading, the disciplinary process has been appropriate in every respect, and we should respect the outcome of that disciplinary process, even if we have some doubts about whether the penalties were severe enough.
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By way of parallel, there are some people who had serious concerns about the outcome of the O.J. Simpson case. There was an outcry to throw out the whole jury system. We've got to avoid that. Some of us have severe questions about a number of Supreme Court decisions. We have to resist the temptation to throw away the whole process just because we are not satisfied with the results, and I think that point is well made.
I think it is imperative to focus this hearing, and I don't think it should be focused on the propriety of the discipline. To the extent we have an appropriate oversight role, I think we should be limiting ourselves to seeking assurances. We need to be assured that the Miami incidents were isolated and not part of any pattern or practice of misconduct at the INS. We need to be assured that policies and procedures are in place or are being put in place to assure that similar incidents never occur again.
And, finally, we need to be assured that the 50 INS employees who courageously stepped forward to uncover this deception are treated fairly and are not subjected to any reprisals or unjust discipline. If we can get those assurances, not only will we not adversely affect the integrity and results of the disciplinary process, but we can say with pride that our subcommittee has played its appropriate role and that this hearing has served a very important purpose. And I'm delighted that the tone of the chairman's opening statement was in accord with those objectives.
Thank you very much, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
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Do any other members of the subcommittee have an opening statement? Mr. Gallegly is recognized.
Mr. GALLEGLY. Thank you very much, Mr. Chairman. I do have an opening statement, but without going through the full text of it, I'd ask unanimous consent that it be made a part of the record in the interest of time. But I just have a couple of opening comments other than my official statement.
Mr. SMITH. OK, without objection, the official opening statement will be made a part of the record, and the gentleman is further recognized.
[The prepared statement of Mr. Gallegly follows:]
PREPARED STATEMENT OF HON. ELTON GALLEGLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Thank you Chairman Smith for scheduling this hearing this afternoon on the penalties being handed down on INS officials involved in the Krome scandal.
The high-ranking INS officials involved in this scandal lied to Congress, instructed others to do the same and then obstructed the Inspector General's investigation. Furthermore, they destroyed evidence to keep the truth from being discovered. To add insult to injury, while under investigation, several of the officials received awards, bonuses and even promotion by the INS. It is absolutely unconscionable.
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In addition to the lies and deception surrounding the Krome visit, the fact that INS officials allowed dangerous criminal aliens and potentially diseased aliens into the general public is appalling.
Although I commend the Justice Department employees for their thorough investigation of these very serious charges, I believe that the penalties handed down were woefully inadequate, especially with respect to the two high level officials involved, Pamela Barry and Carol Chase.
Mr. GALLEGLY. I appreciate the comments of the chairman. I particularly appreciate the comments of the ranking member as it relates to his outrage. I respectfully disagree with a couple of the aspects of his statement talking about how we might compromise the penalty process by discussing it to some degree, because the actual penalties involved here are the maximum that can actually take place. And I would like to kind of review that very quickly.
As you all know what took place, there is absolutely no question, there is no discussion or argument that the members involved here blatantly lied to Congress. They collaborated in orchestrating their lies to Congress. They released criminal aliens into the community of Miami with total disregard for the health and welfare of those citizens, criminals that were incarcerated for drug trafficking, alien smuggling, and other crimes. They also released aliens into the community that had not had any health examinations that were from countries that have a history of immigrants with very serious communicable diseases, highly communicable diseases, such as tuberculosis and AIDS. They were released with total disregard for the community--with one purpose in mind, and that was to lie to Congress and paint a rosy picture that did not exist there.
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The story goes on. Several individuals actually refused to cooperate with the Inspectors General. Not only did they refuse to turn over documents, but then said, ''We will only turn over these documents if we receive a subpoena.'' And while the Inspector General was in the process of getting a subpoena, they made a definite, specific act to destroy the evidence. They were pretty smart, but they were pretty dumb. They deleted many of the records in their computers, but they didn't understand that deleting doesn't mean totally purging, and Lotus, at great expense to the Government, went back and reconstructed that and found all of this information that led to the obstruction of justice.
Now let's talk about what these penalties are. In the case of the person principally responsible for the oversight of this trip, that went down to Miami, orchestrated the trip, did an advance trip, discussed the procedures 2 weeks before the trip, covered the trip and went down after the trip, that person is a political appointee and is not subject to the same civil service penalties as is the case of career folks. This individual had a salary of $111,308 prior to this activity. Her salary today is $111,308 with no penalties.
Another individual's, who was viewed as one of the principal violators, salary at the time that this took place was $111,308, and the recommended penalty to her is to reduce her salary to $108,200.
Another individual, who was one that was definitely involved in destroying documents and refusing to cooperate with the Inspectors General, certainly obstruction of justice, his salary prior to this episode was $113,358. His salary today is $108,200.
This is what we give our employees in the Federal Government for lying to Congress, obstructing justice, destroying documents. I'm sorry, Mr. Watt, I can't agree with--and this is the worst-case scenario.
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Mr. WATT. Would the gentleman yield?
Mr. GALLEGLY. Yes.
Mr. WATT. I'm not objecting to your being outraged about the penalties. I'm objecting to the timing. I just think if we were going to deal with the issue, we would have been a lot better off to delay this until everything was over in the disciplinary----
Mr. GALLEGLY. The point I'm trying to make, Mr. Watt, and I respect the technical procedure and the legal process, and so on and so forth, but since these penalties in my estimation really aren't even penalties, what difference does it make, in my estimation?
And so, in any event, and in just closing, I think it's important to note folks that are making $113,000, $111,000, $108,000 are not your entry-level employees that could be viewed as, well, he made or she had maybe a little bad judgment and, you know they're learning; they're beginning the process. These are career people that have spent many, many years. They know what the rules are. They can't cry ignorance. If they do cry ignorance, I think the penalty should be even greater.
This, in all of the time that I have spent in this great body, this has been the most frustrating and the most outrageous attempt by people working for the Federal Government to deal with Members of Congress that I have seen in my 11 years here.
I yield back, Mr. Chairman.
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Mr. SMITH. Thank you, Mr. Gallegly.
I have been informed by several members of the subcommittee that they have tight schedules this afternoon, and if neither of the panelists object, what we will do is have Mr. Colgate testify and then Commissioner Meissner, or vice versa. Commissioner Meissner, if you could come forward at this time and as soon as you all finish testifying, then we'll go to questions for either one of you.
Ms. MEISSNER. At this time?
Mr. SMITH. At this time, if that would fine.
Mr. BERMAN. Mr. Chairman.
Mr. SMITH. Oh, I'm sorry, I didn't hear anybody else respond to my inquiry about opening statements. Mr. Berman is recognized.
Mr. BERMAN. When you made your inquiry, I had no intention of responding, but now I would like to make just one comment. We'll hear from the testimony; I think that will clarify that a lot of what's happened. We have selectively discussed, my friend and colleague from California has selectively discussed, a couple of the penalties or nonpenalties. He has not made reference to other penalties that were proposed in all of this.
But the one thing I do want to say, a process has taken place that dealt with certain accusations. Where they found--where that process concluded the accusations were not true, that the evidence did not support the accusations, that in the process of investigation and response and adjudication, that there was no basis to sustain the allegations, to rail about the absence of a penalty makes no sense to me, and I just to--I'll say that at this point, and without getting any further into it, of course, there's not going to be a penalty where the accusations were found not to be true or the allegations were not to be true.
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Mr. GALLEGLY. Would the gentleman yield?
Mr. BERMAN. Do you want to----
Mr. GALLEGLY. Would the gentleman yield, just very quickly?
Mr. BERMAN. Sure, sure.
Mr. GALLEGLY. I'd just like to say in each of the cases that I explained is documented in the IG's report, if you
haven't read it, specifically what happened with destroying documents in the computer, specifically the verification of people being released into the streets with total disregard for the----
Mr. BERMAN. Oh, no, no, no, no.
Mr. GALLEGLY [continuing]. And, also, the lack of cooperation by these officials with the IG, those are the issues. If nothing else happened, that in and of itself should be enough that there should be criminal activity here, not just a $3,000-a-year slap on the wrist.
Mr. BERMAN. Well, you cover a lot of different cases in your generalizations, but I took part of what you said to include that it would have been appropriate to penalize somebody for whom the IG's assertions were not established in the adjudication process, and it makes no sense--I think it makes no sense and it's not just and fair to take that position. When found innocent, the question of penalties does not come up, and I just wanted to point that out.
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I yield back my time.
Mr. GALLEGLY. If the gentleman would further yield----
Mr. BERMAN. Yes.
Mr. GALLEGLY. In one instance that you are referring to, the person that was the political appointee, clearly there was mismanagement if there wasn't any absolute wrongdoing that they could prove beyond a doubt, and the IG said--or the person that made the recommendations for these penalties said this is not a vindication of this person; we just do not have conclusive evidence to prove this. In the case of a political appointee, that isn't necessary to remove someone as a political appointee, if they have been directly involved and where obvious mismanagement took place, where they were the one in charge.
And I'd yield back.
Mr. SMITH. OK, thank you, Mr. Berman. Thank you, Mr. Gallegly.
We will go forward and hear, first, from Stephen Colgate, the Assistant Attorney General for Administration, Department of Justice, and then from Doris Meissner, Commissioner, Immigration and Naturalization Service.
I'd like to ask you all, if you possibly could, to summarize your opening statements and limit them to 5 to 7 minutes.
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Mr. Colgate is recognized.
STATEMENT OF STEPHEN R. COLGATE, ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, JUSTICE MANAGEMENT DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. COLGATE. Thank you, Mr. Chairman and members of the subcommittee. I'm Stephen Colgate, Assistant Attorney General for Administration with the Department of Justice.
When the Deputy Attorney General met with you last June concerning the Inspector General's report on the congressional visit to Miami in June 1995, she committed to keep you informed of the disciplinary process undertaken by the Department in response to that report. The Department has now decided upon the discipline that it will take against the involved employees, and I am here to report the results of that process.
To summarize the final actions, one employee is removed from Federal service; four employees are demoted; one employee voluntarily resigned from the Senior Executive Service to accept reassignment to a GS—15 position in lieu of removal from Federal service. Six employees are suspended without pay for periods ranging from 2 days to 15 days, and two employees are not disciplined. One of these will be reassigned as a matter outside of the disciplinary process.
I would like now to describe to you the process the Department used to reach its decisions about discipline in these cases. Before I do so, I want to advise you that the process is not over. Under the congressionally mandated scheme of 5 U.S.C., section 7512, career employees who are removed, demoted, or suspended for 15 days or more may appeal to the Merit Systems Protection Board. Employees subject to less severe discipline may grieve to a higher level official, in this case the Attorney General.
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As many of you know, before the process began, Commissioner Meissner asked that the disciplinary matters be handled outside of the Immigration Service. Because of the importance the Attorney General and the Deputy Attorney General attached to this matter, they asked me, the Department's highest-ranking career civil servant, to act as a proposing official for any discipline arising from the report. They asked Associate Deputy Attorney General David Margolis, another career official, to serve as the deciding official in these cases.
To review the considerable investigative materials and develop my proposals, I assembled a team of career employees to review the report and all the underlying documents into evidence. They made recommendations to me about what charges should be made against each employee, based on the evaluation of the available evidence and the Merit Systems Protection Board precedent dealing with similar cases. I have received the recommendations from the team and accepted them with minor modifications which I discussed with the team during the briefings.
On August 27, 1996, I proposed disciplinary actions ranging from removal from the Federal service to suspension from duty and pay for 2 days against the employees with respect to whom there was sufficient evidence of wrongdoing to support a disciplinary action through the appeals process. The employees were notified of their rights to respond to the proposed actions to David Margolis. Because of the interrelationships of the conduct for which discipline was proposed, Mr. Margolis determined that he would not make or issue any decisions until all the employees had completed their replies. In making his decisions, Mr. Margolis was required to hear any reply presented by the employee and determine whether the proposed charges against the employee were sustained. In addition, he was required to determine the appropriate penalty for any sustained charge, considering any mitigating or aggravating factors, such as the service of the employee. Mr. Margolis issued his decisions on February 19, 1997. Although some of the discipline has already been imposed, the Department will complete the remaining discipline and transfers within the next several weeks.
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Future employee action to appeal to the MSPB or to grieve to the Attorney General does not prevent us from taking these actions now. To ensure a productive relationship with Congress and move forward on the strongest footing in the aftermath of the Miami incident, Commissioner Meissner has decided to reassign several high-level employees from the Miami district and the eastern region to other positions in INS. Their replacements will be named shortly, and an orderly transition for the work of these offices is underway. These reassignments are not part of the disciplinary process.
Thank you for giving the Department the opportunity to describe the disciplinary process as we've applied it to these cases. I appreciate the understanding the committee and its staff has shown for the grievance and MSPB appeals that are still before us. I'd be pleased to answer any questions that you may have about the process we followed. Thank you.
[The prepared statement of Mr. Colgate follows:]
STATEMENT OF STEPHEN R. COLGATE, ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, JUSTICE MANAGEMENT DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman and Members of the Subcommittee, I am Stephen R. Colgate, the Assistant Attorney General for Administration, U.S. Department of Justice. When the Deputy Attorney General met with you last June concerning the Inspector General's (IG) report on the Congressional visit to Miami in June 1995, she committed to keep you informed of the disciplinary process undertaken by the Department in response to that report. The Department has now decided upon the discipline that it will take against the involved employees, and I am here to report the results of that process.
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To summarize the final actions: One employee is removed from Federal service; four employees are demoted; one employee voluntarily resigned from the Senior Executive Service (SES) to accept reassignment to a GS—15 position, in lieu of removal from Federal Service; six employees are suspended without pay for periods ranging from 2 days to 15 days; and two employees are not disciplined; one of these will be reassigned as a matter outside of the disciplinary process.
I would now like to describe for you the process that the Department used to reach its decisions about discipline in these cases. Before I do so, I want to advise you that the process is not over. Under the Congressionally-mandated scheme of 5 U.S.C. 7512, career employees who are removed, demoted, or suspended for 15 days or more may appeal to the Merit Systems Protection Board. Employees subject to less severe discipline may grieve to a higher level official, in this case the Attorney General.
As many of you know, before the process began Commissioner Meissner asked that these disciplinary matters be handled outside of the INS. Because of the importance the Attorney General and the Deputy Attorney General attached to this matter, they asked me, the Department's highest ranking career official, to act as the proposing official for any discipline arising from the report. They asked Associate Deputy Attorney General, David Margolis, another career official, to serve as the deciding official in these cases.
To review the considerable investigative materials and develop my proposals, I assembled a team of career employees (none of whom had any involvement with this incident) to review the report and all of the underlying documents and evidence. They made recommendations to me about what charges should be made against each employee, based on their evaluation of the available evidence and the MSPB precedent dealing with similar cases.
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I received the recommendations from the team, and accepted them with minor modifications which I discussed with the team during their briefings. On August 27, 1996, I proposed disciplinary actions, ranging from removal from the Federal service to suspension from duty and pay for 2 days, against the employees with respect to whom there was sufficient evidence of wrongdoing to support a disciplinary action through the appeals process. The employees were notified of their rights to respond to the proposed actions to David Margolis, Associate Deputy Attorney General. Because of the interrelationship of the conduct for which discipline was proposed, Mr. Margolis determined that he would not make or issue any decisions until all of the employees had completed their replies.
In making his decisions, Mr. Margolis was required to hear any reply presented by the employee and determine whether the proposed charges against the employee were sustained. In addition, he was required to determine the appropriate penalty for any sustained charges considering any mitigating or aggravating factors, such as the service history of the employee. Mr. Margolis issued his decisions on February 19, 1997.
The Department will impose the decided-upon discipline within the next several weeks. Future employee action to appeal to the MSPB or to grieve to the Attorney General does not prevent us from taking these actions now.
To ensure a productive relationship with Congress and move forward on the strongest footing in the aftermath of the Miami incident, Commissioner Meissner has decided to reassign several high-level employees from the Miami District and the Eastern Region to other positions in INS. Their replacements will be named shortly and an orderly transition for the work of these offices is underway. These reassignments are not part of the disciplinary process.
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Thank you for giving the Department the opportunity to describe the disciplinary process as we applied it to these cases. I appreciate the understanding the Committee and its staff has shown of the grievance and MSPB appeals that are still before us. I would be pleased to answer any questions that you may have about the process that we followed.
Mr. SMITH. Thank you, Mr. Colgate.
Commissioner Meissner.
STATEMENT OF DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE
Ms. MEISSNER. Thank you, Mr. Chairman, members of the subcommittee.
The Inspector General's report substantiated serious allegations made by employees of our Miami district, citing actions taken in Miami in anticipation of the task force visit. The IG found that managers in the Miami district had taken a series of actions that masked actual work conditions in the district and, as such, deceived Congress by giving a false impression of the challenges the Congress and the executive branch were jointly attempting to address.
I understood and I supported the vital importance of the task force seeing firsthand the challenges that INS employees confront. To this day, I do not understand why my instructions that no extraordinary actions be taken in anticipation of the task force visit were violated, and I deeply regret the damage that it has done to our relationship with the Congress and with this committee.
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The deception of Congress is particularly painful to me because it runs directly counter to my commitment to improve the credibility and the professionalism of the Immigration Service. I cannot overstate, as I said in September, how much I regret that this incident took place. The actions described in the IG report put into jeopardy not only INS's relationship with you and the Congress at large, but they also broke faith with me.
As you know, the Department has now concluded the disciplinary process. We are moving quickly to effect the disciplinary actions. In addition, to ensure a productive relationship with Congress and to move forward on the strongest footing in the aftermath of this matter, I have decided to reassign the two most senior employees involved in the matter. I hope that the issuance of the disciplinary decisions and these additional management actions that I have taken can mark the close of a sad and painful chapter for all of us at the Immigration Service.
Accountability and fairness are fundamental management principles which I uphold. The Government's investigative and personnel processes in this episode have been long and complex. Since the IG report was issued in June, INS has worked diligently on several fronts.
First, we have repeatedly reiterated throughout the Service the fundamental message that honesty and integrity must be at the core of all of our work.
Second, we have responded aggressively to the systemic and managerial questions raised in the IG report as a result of the work in Miami. We have already shared with you numerous instructions and directives issued as a result of the IG's findings. They are detailed again as an appendix to this testimony.
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Third, in specific response to management concerns at the Miami district, I immediately put into place there seasoned INS managers to act in the positions of district director and deputy. We strengthened their hands with a management review team to address the specific issues that were identified by the IG and to provide me with a comprehensive assessment of the office's management needs and a get-well plan. The team's major findings, again, have been provided to the committee and to the Congress in three separate reports that have been issued since June.
Fourth, we have implemented a management review program which will enable us to have regular and systematic oversight over field operations throughout the Service. That program, which I announced last September, is called INSpect. It is a $3.5 million initiative developed over the past 2 years to carry out top-to-bottom assessments of INS field operations. The commitment of resources to INSpect will allow us to review the operations of critical facilities such as detention centers and large offices every 2 years. Other offices will be inspected on a 3-year cycle.
Additional teams will be available to be sent to the field on an as-needed basis. INSpect will ensure that service policy, rules, and regulations are being properly implemented. INSpect will touch nearly all of our 25,000 employees and represents an aggressive, systematic approach to fostering a culture of accountability at INS. One of the very first INSpect assessments will examine the Krome processing center in Miami.
With the decisions on disciplinary action in the Miami case now having been taken, and with additional senior-level reassignments having been made, it is my sincere hope that we can turn our attention to the future. Mr. Chairman, I repeat what you have heard me say publicly and privately many times before: We will continue to pursue diligently every available avenue to protect and strengthen the integrity of the work of the Immigration and Naturalization Service. I urge you and members of the committee to call on me without hesitation if you have any concerns or information of any kind about integrity matters. You have my word and my commitment that I will respond. Thank you.
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[The prepared statement of Ms. Meissner follows:]
PREPARED STATEMENT OF DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE
Thank you, Chairman Smith, Congressman Watt, and Members of the Subcommittee. I am before you today to discuss the actions we have taken since I last testified before you regarding the June 1995 visit of the Congressional Task Force on Immigration Reform to Miami and the Inspector General's (IG) report concerning that visit.
The IG report substantiated serious allegations made by employees of our Miami District, citing actions taken in Miami in anticipation of the Task Force visit. The IG found that managers in the Miami District had taken a series of actions that masked actual work conditions in the District and as such deceived Congress by giving a false impression of the challenges the Congress and the Executive branch were jointly attempting to address. I understood and supported the vital importance of the Task Force seeing first hand the challenges INS employees confront. To this day, I do not understand why my instructions that no extraordinary actions be taken in anticipation of the Task Force visit were violated, and deeply regret the damage it has done to our relationship with Congress, and with this Committee.
We have received unprecedented support from the Congress during a period of renewed attention to INS' mission of enforcing our laws against illegal immigration and preserving our immigration heritage. The deception of Congress is particularly painful to me, because it runs directly counter to my commitment to improve the credibility and professionalism of the INS. I cannot overstate, as I said in September, how much I regret that this incident took place. The actions described in the IG report put into jeopardy not only INS's relationship with you and the Congress at large, but also broke faith with me.
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The IG report implicated 13 employees at all ranks of INS. When I testified before this Subcommittee last September, following the issuance of the Inspector General's report, I explained that, in light of the seriousness of the allegations made against INS employees, and to ensure the integrity, consistency, and fairness of discipline that could result from the Inspector General's findings, I had asked the Department of Justice to conduct the disciplinary process. As you know, the Department has now concluded that process. We are moving quickly to effect the disciplinary actions. In addition, to ensure a productive relationship with Congress and to move forward on the strongest footing in the aftermath of this issue, I have decided to reassign the two most senior employees involved in the matter. I hope the issuance of disciplinary decisions and other management actions I have taken, mark the close of a sad and painful chapter for all of us at the INS.
Accountability and fairness are fundamental management principles which I uphold. The Government's investigative and personnel process in this episode have been long and complex. However, no stone has been left unturned and the process has been thorough and complete.
Since the IG report was issued in June, INS has worked diligently on several fronts.
First, we have repeatedly reiterated throughout the Service the fundamental message that honesty and integrity must be at the core of all our work.
Second, we have responded aggressively to the systematic and managerial questions raised in the IG report as a result of their work in Miami. We have already shared with you numerous instructions and directives issued as a result of the IG's findings and which are detailed in an Appendix (I) to this testimony. We are working closely with our managers in the field to ensure full compliance with these directives, not only in Miami, but throughout the Service.
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Third, in specific response to management concerns at the Miami District, I immediately put into place seasoned INS managers to act in the positions of District Director and Deputy. We strengthened their hands with a Management Review Team to address the specific issues that were identified by the IG and to provide me with a comprehensive assessment of the Miami office's management needs and the basis for a get-well plan. This team consisted of experts in the areas of inspections, detention and deportation, labor management, and overall administration of District operations. The Team's major findings are described in an Appendix (II) to this testimony and have been provided to Members in the form of three management reports issued since June 1996.
Fourth, we have implemented a management review program which will enable us to have regular and systematic oversight over field operations.
You will recall that last September I announced INSpect (the INS program for Excellence and Comprehensive Tracking), a $3.5 million initiative developed
over the past two years to carry out top-to-bottom assessments of INS field operations. INSpect will more than triple the number of full-time evaluators dedicated to reviewing operations at the INS field offices, and will create a highly trained group of approximately 500 officers who will travel the country performing INSpect assessments. I am grateful for the support that Congress has given us in this regard.
The commitment of resources to INSpect allows us to review the operations of critical facilities, such as detention centers and large offices, every 2-years. Other offices will be inspected on a 3-year cycle. Additional teams will be available to be sent to the field on an as-needed basis. INSpect will ensure that Service policy, rules and regulations are being properly implemented. INSpect will touch nearly all of our 25,000 employees, and represents an aggressive, systematic approach to fostering a culture of accountability within INS. One of the very first INSpect assessments will examine the Krome Processing Center in Miami. An INSpect team visited Krome on December 4—13, 1996, and is currently preparing its report.
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With the decisions on disciplinary action now having been taken, and with additional senior level reassignments to ensure, it is my sincere hope that we can turn our attention to the future. There is, as always, much work to be done. I am very pleased to have announced that Bob Wallis, who has been the acting INS District Director in Miami since shortly after the release of the Inspector General's report in June 1996, has been selected as the permanent District Director in Miami for that office. The disciplinary decisions of the Department of Justice in this case are significant and have sent a message throughout INS that serves to reinforce my message that the highest standards of integrity in carrying out the Service's mission must be upheld.
Mr. Chairman, I will repeat what you have heard me say, publicly, and privately, many times before: We will continue to pursue diligently every available avenue to protect and strengthen the integrity of the work of the INS. I urge you and members of the committee to call on me without hesitation if you have any concerns on information of any kind about integrity matters. You have my word and commitment that I will respond.
Thank you.
APPENDIX I: INSTRUCTIONS ISSUED
''Information and Evidence Requested in Investigations'' issued July 26, 1996.
''Instructions for Medical Clearance of aliens at Service Processing Centers and Contract Facilities,'' issued July 26, 1996.
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''Implementation of the Immigration and Naturalization Service Firearms Policy,'' signed August 8, 1996.
''Secondary Detention Procedures at Ports-of-Entry,'' issued August 16, 1996.
''Inspections Program Guidance on Uniform Leather Gear and Related Item''.
''Inspections Program Firearms Policy Issues and Procedures,'' issued December 3, 1996.
APPENDIX II: SUMMARY OF MIAMI MANAGEMENT REVIEW TEAM
On July 26, 1996, the Management Review Team provided an assessment of the systemic issued addressed in the IG's report, as well as additional operational and management matters not specifically identified by the IG. I provided a copy of the Team's report to you on August 22, 1996.
Since that time, the Management Review Team has issued interim and final reports which were also forwarded to you. On January 21, Deputy Commissioner Sale briefed staff members of this Committee on the status of those reports. The final report outlines significant actions taken to improve the Miami Director's operations and to address areas of deficiency noted in the IG's report.
As a result of our combined efforts in Miami, the detention and removal systems and procedures, including the Krome facility, are significantly improved and we are addressing backlog cases under proceedings. We have revitalized the labor management program, including providing training to 109 supervisors. Airport detention procedures, employee overtime scheduling, and uniform issues have all been addressed.
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By revamping administrative procedures in Miami financial management deficiencies have been corrected and improved processes have been redesigned. Since September 5, 1996, the District vacancy rate has been reduced from 8.2 percent to 5 percent. By December 21, 1996, total vacancies had been reduced to 53 in a workforce of 1,041 positions. For those 53 vacancies, 9 had completed the clearance process and were pending entrance on duty. This represents a drastic improvement from the 14.5 percent vacancy rate that existed in July 1996.
Management representatives from the INS Eastern Region and Headquarters have visited the District regularly. Those visits confirm the positive results enumerated in the Management Review Team's report.
Mr. SMITH. Thank you, Commissioner Meissner.
Mr. Gallegly I know has a commitment at 15 to 2. So I am going to yield my time to him and then take his time in turn. Mr. Gallegly is recognized.
Mr. GALLEGLY. I thank you very much, Mr. Chairman, for giving me the opportunity to proceed out of order.
Mr. Colgate, we've had discussions and been briefed on the role that you played, and I understand that you have a tough job and you have guidelines to work by, and whether we agree or disagree with those guidelines, that's a given. So from that standpoint, I respect the job that you had to do.
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What is your assessment of the MSPB process, the appeals process, and can you give me a general sense of whether it's a thing that provides true fair equity to protect the employees as well as the American public?
Mr. COLGATE. Mr. Gallegly, I am somewhat concerned about some of the recent decisions that we have received at the Department of Justice regarding disciplinary action that we've taken against our own employees. I can give you two examples in my own Division, as well as examples in the law enforcement community.
I am concerned that the Board does mitigate downwards decisions that we propose. I'll give you an example of one that has troubled me personally. A little while ago, we had an employee who was a GS—13 security specialist who failed to file Federal income taxes for 3 years. This became known when we were doing the security reinvestigation of this individual. This individual, if my recollection is correct, had previously been suspended from Federal service for not handling cryptography keys correctly, those keys similar to the ones that were used in the Walker incident. It's a very serious situation.
We proposed that that individual be removed from Federal service for failing to file Federal income taxes, and I think that was a justified decision. I mean, I'm a taxpayer; we should all file our Federal income taxes. That was mitigated by the Board to a 60-day suspension. We were ordered to bring the employee back to our employment and to pay that individual's attorney's fees.
Recently, we just proposed in a disciplinary situation where an employee who had previously shut down the computers at the Department of Justice's Data Center--this supports INS, DEA, the Bureau of Prisons, U.S. Marshals Service, U.S. attorneys, and all our litigating divisions. We had taken action against that employee. That employee then threatened in a subsequent action to kill his supervisor, and if I believe correctly, the supervisor's family. That case was recently also mitigated, and we are in the process of the mitigation, and that employee will return to the Department of Justice.
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Administrator Constantine of DEA asked the Deputy Attorney General to consider having law enforcement personnel exempt from the MSPB review process, similar to the exemption that is provided to the intelligence community. He's quite concerned because of the case in which a DEA agent was arrested for shoplifting, and the agency proposed this law enforcement officer arrested for shoplifting, be removed from Federal service. The Board, if my recollection is correct, mitigated that to a 90-day suspension and returned that individual to service.
My counsel has informed me that recently about 50 percent of our cases are being mitigated downwards from the penalties that we propose, and that does concern me, sir.
Mr. GALLEGLY. I guess that says a lot about the system, and maybe that should be a discussion for another day. It's obvious that there are really not a lot of disincentives out there to lie to Congress or to obstruct justice or destroy documents or not pay your taxes or threaten people bodily harm. I mean, it appears to me that there's a lot of wrong messages being sent out there, and I really do think that on another day that should be an issue we ought to look at, Mr. Chairman.
And I appreciate your candor, Mr. Colgate. That in and of itself is very refreshing.
Commissioner Meissner, we've had a good working relationship. I think we've worked very well together. We haven't always agreed, but I've always respected the job you've tried to do. I don't think there's many jobs in Washington that's tougher than the job you have to do.
I'm somewhat chagrined at the method that this has been handled, particularly as it relates to one political appointment, and you know who I'm referring to. They do not come under the same rules that we're talking about. They serve at the will of you and the President. You knew 8 months ago what the recommendations were, that this person be removed from dealing directly with Members of Congress because the IG says she has no credibility. Could you maybe briefly tell me why in the 8 months--and this person, by the way, has had no penalties at all, other than I understand now she's being moved from one place to another, but still receiving $111,000 a year. She was, whether she was the architect or the one that gave the specific directions, she was the manager overseeing what took place, just like the manager of the baseball team that loses the World Series.
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Ms. MEISSNER. The IG's report, as with all of the other employees that were named in the IG's report, became subject to the discipline process. The discipline process, in the case of our Director for Congressional Relations, reached the conclusion that there was not evidence to support discipline. The discipline letter or the letter that came to me on that point suggested that there were issues of management concern about that individual's manner. We counseled on that point, and I had every hope that a productive working relationship with the Congress could be reestablished.
I have come to the view that that is no longer possible, and I have reassigned that person to a different position in the Immigration Service. We will be announcing a new Director for Congressional Relations shortly.
Mr. GALLEGLY. But, for the record, this person that has been reassigned will be reassigned making the same salary of $113,751 per year; is that correct?
Ms. MEISSNER. That is correct. She will be reassigned. As Mr. Colgate will verify from the report, there has not been a finding of wrongdoing from the standpoint of discipline. So we are treating it as a management matter.
Mr. GALLEGLY. You said clearly that there was a certain serious concern for the management, and there had been counseling, with the hope that we could reconstruct this, and that failed, and keeping in mind that person is operating at the direct discretion of your view as to whether they perform or not and is not subject to the same organization as civil servants; is that not correct?
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Ms. MEISSNER. That's correct, and that's why we've decided it's in the best----
Mr. GALLEGLY. So, in other words, if you and the
President think that this is the proper way for this person to function, you have every right to continue to pay her $113,751, or whatever adjustment that you deem necessary?
Ms. MEISSNER. It is in our--salary is in our discretion, yes.
Mr. GALLEGLY. OK, thank you very much, Commissioner Meissner, and thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Gallegly.
Mr. BERMAN. Mr. Chairman, could I just ask one point? Mr. Gallegly is going to be leaving. There are going to be some issues--I mean, we're going to have to get into things involving some of the questions you raised and the issues you've raised which will involve you, and I just wanted--we're not able to do it without you--I take it you have to go, for the reasons I have to go a little later, but----
Mr. SMITH. Maybe you could both go together. [Laughter.]
Mr. GALLEGLY. I have total respect for the chairman handling this from this point on----
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Mr. BERMAN. OK, OK.
Mr. GALLEGLY [continuing]. And we have discussed this at length. I don't think the fact that I have a real reputation of equivocating around here, and in this case I've tried not to equivocate any more than I have to. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Gallegly.
The Chair will recognize the gentleman from North Carolina, Mr. Watt.
Mr. WATT. I thank the chairman for recognizing me, and I thank these two witnesses for coming and making a presentation.
Before Mr. Gallegly leaves, I want to remind him of the jurisdiction of this committee and subcommittee. I don't think we have any jurisdiction over the Merit Systems Protection Board and any concerns we have about that. So while it might be an appropriate set of issues that he has raised, this whole issue of the extent to which they are mitigating penalties, I don't think this subcommittee is going to be the subcommittee that really can address that issue. So I appreciate the candor with which you responded to his questions, but I repeat, that is not the focus of this hearing today, nor do I think it should be.
Let me commend Ms. Meissner for addressing, at least in some measure, the three concerns that I outlined in my opening statement: No. 1, the assurance that the Miami incident was isolated and not part of a pattern or practice of misconduct at the INS. I take it, if there is some pattern and practice, you're trying to get to the bottom of it and get rid of it?
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Ms. MEISSNER. You can be sure of that, Mr. Congressman.
Mr. WATT. And some of the things that you outlined in your statement are the processes that you've been following to try to address that issue?
Ms. MEISSNER. That's correct.
Mr. WATT. And the second thing I wanted assurance on was that you are putting in place some policies and procedures that will assure that this kind of incident never occurs. It sounds to me like you had already put those things in place, told your employees under no circumstances are you to coverup, cleanup, do anything different for this group that's coming down to review. They didn't seem to honor your request on that occasion. Are there any other things that you are doing to try to make sure that this kind of incident doesn't repeat itself? Maybe the fact that this has happened, and has raised our consciousness to a higher level in and of itself, but what other kinds of things----
Ms. MEISSNER. Well, there are a series of things. Accountability and integrity have been themes that I have stressed and have been repeated throughout my tenure at the INS. We have a variety of ways of trying to bring that home, but I think that the most practical, hard-headed way of bringing it home is embedded in the program that we are now launching, the program that we call INSpect. I'm happy to be able to say that the Congress just last week approved our reprogramming of funds for this program. We have already begun the field reviews that are involved in the first set of target offices. As I say, our INSpect team already visited Krome in December.
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The real point that I would make with INSpect vis-a-vis this Miami incident is that the INSpect program has been under development within INS for about 2 years now. It's something that I realized quite soon was a real deficiency in the organization and was a checks-and-balances that we needed to build. It takes some time to build something like this.
When the results of the Miami incident became known to me in the Inspector General's report last June, we took another look at INSpect and beefed it up considerably from what the planning trajectories were at that time. We made it a much more aggressive, well-financed, sweeping program. It is, as I said in my testimony, a program I announced in September as a result of that June to September re-review. We are finding a very, very positive reception for it among our field managers. Our field managers, the good ones, as would any of us, want to get a report card. They want to be able to know that they are doing things properly, and they want to have help in identifying things that perhaps they have not been aware of.
Some of these operations of ours, things like the Los Angeles district office or the Miami district office, the large operations along the border, are very, very large undertakings, and our managers want to be good managers. So I have a great deal--I'm very optimistic about this program. I think it answers many of these difficulties.
Mr. WATT. Mr. Chairman, let me have your indulgence just for a second to make sure on the third point that I raised in my opening statement. I know that you are not planning to take any action against these people who came forward and blew the whistle, so to speak, and you've removed or reassigned at least top-level people at a lower level, but do we have in place some mechanism to assure that somebody else further down in the system doesn't, either impliedly or directly, take some retaliatory action against these employees who stepped forward and told us what----
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Ms. MEISSNER. Well, of course, there is the general prohibition against reprisals, but in the specific case of the Miami individuals who signed the letter, we have actually checked to be certain that no untoward actions have been taken. I can provide you with that information. The fact is that several of those employees have been promoted; several have been transferred into better positions at----
Mr. WATT. And you'll continue to monitor that aspect?
Ms. MEISSNER. And we have monitored it very closely. In fact, the district director is under specific instructions from me to be paying close attention to that.
Mr. WATT. Thank you very much, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
Mr. Colgate, the Inspector General reported a number of actions by INS employees that could be considered criminal obstructions of justice. For example, he found that relevant and important computer records that he had requested had been deleted from the computer files, including one particularly important and sensitive E-mail. One INS employee refused to ensure that the INS had stopped purging the computer backup records.
I know that the Inspector General, Mr. Bromwich, transmitted a copy of his report to the Public Integrity Section of the Criminal Division of the Justice Department to evaluate the appropriateness of criminal prosecutions. Has that review by the Criminal Division been completed yet?
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Mr. COLGATE. Mr. Chairman, it's my understanding that that is still pending within the Public Integrity Section, but I would also like to note that we really do put up a Chinese wall between myself as the administrative process and the criminal process, and I've only heard that from, I believe, Mr. Bromwich. That's still pending.
Mr. SMITH. Right. My point is that that investigation has not yet been completed; is that right?
Mr. COLGATE. That's my understanding, but, again, I sort of stay away from those types of things.
Mr. SMITH. OK. Thank you, Mr. Colgate.
Commissioner Meissner, in the 38 or 36 hours prior to the congressional delegation's arrival at the Krome detention center, 58 illegal aliens were released into the community, and according to the IG's report, 35 of these aliens had not been medically cleared for communicable diseases before their release. Four of these aliens had criminal records, including cocaine trafficking and burglary, and eighteen had unknown criminal histories because a criminal check had not yet been done. The Inspector General concluded that these releases were motivated by the impending visit of the delegation.
First of all, just a couple of points real quickly: isn't it a part of INS procedure that an individual, an illegal alien, before being released, be screened for communicable diseases, and receive a medical clearance?
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Ms. MEISSNER. That is correct.
Mr. SMITH. According to the Inspector General, a criminal background check was not required at Krome for aliens being released into the community. Were you aware that it was standard procedure at Krome not to require these criminal background checks?
Ms. MEISSNER. I was not.
Mr. SMITH. Don't you think, then, that the public safety was endangered by releasing these individuals?
Ms. MEISSNER. I do, and that is exactly--I mean, there is no question that this was in violation of policy and procedure.
Mr. SMITH. OK. It's my understanding that you first learned about the allegations that the aliens had been released without the proper screenings on July 12 when you received a copy of the letter that the INS employees had sent Mr. Gallegly. Is that the first time you were aware of the allegations?
Ms. MEISSNER. Yes, it is.
Mr. SMITH. OK. What steps did you take, therefore, after July 12 to make sure that the public safety and health was protected?
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Ms. MEISSNER. We asked the Miami district office what happened, and the Miami district office was not candid and truthful with us in its response. When I say the additional pain of this whole incident for me, I am referring to exactly that lack of candor.
Mr. SMITH. Right. Well, you knew the contents of the letter that the employees had sent Mr. Gallegly which made the allegations that these individuals were being released out into the public. Couldn't you, if you had wanted to, determine just in a couple of hours whether or not individuals were being released into the community that were a threat to the public safety and welfare?
Ms. MEISSNER. We asked the people that are responsible for that to tell us whether it was true. It's such an astonishing thing for an officer at a detention center to do because it's against policy.
Mr. SMITH. You asked the people in charge of the office, then, specifically whether or not they were aware that individuals with these criminal histories and without a medical clearance had been released into the community, and they lied to you and said no such individuals were released?
Ms. MEISSNER. We asked them to respond to the letter that Mr. Gallegly had received, and that was one of the points in the letter.
Mr. SMITH. I know you asked them to respond. Why didn't you satisfy yourself personally, as the head of the INS, that individual lives were not endangered or threatened because of these individuals who were being wrongly released? Why did you wait for all these responses to get back to you when you could have satisfied yourself in a couple of hours and protected the public safety?
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Ms. MEISSNER. Well, I'm not sure how we--I'm not sure that we could have satisfied ourselves independently, and I think when the Inspector General went to Miami to do the actual investigation, he, too, had a very difficult time reconstructing the records in order to determine whether releases actually had occurred. The way that you do these things is that you ask the people who are in charge what they did.
Mr. SMITH. Yes, but you're in charge. The people in the Miami office are in charge of certain things, but you ultimately, do you not, have the ultimate responsibility. As such, aren't you the individual that has to make the decision whether or not to protect the public safety? And, again, why didn't you act quickly, in a matter of hours, if not minutes, to make sure and satisfy yourself, not relying upon channels that are time-consuming? Why didn't you immediately satisfy yourself that the public health and safety wasn't being endangered?
Ms. MEISSNER. There are huge numbers of transactions that go on in our agency every day. Our field managers are responsible for doing them properly.
Mr. SMITH. Well, you know----
Ms. MEISSNER. They are accountable for that.
Mr. SMITH. Let me interrupt you because my time is out. I'm not, obviously, succeeding in getting what I want, which is an assumption by you of your responsibility.
Ms. MEISSNER. Well, I was about----
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Mr. SMITH. I know that you regret, but regret is not accepting responsibility. I know you had managers who had jobs to do. I don't deny that. What I'm saying is, in my judgment, it was your responsibility to make sure that the public safety and welfare was protected, and from where
sit, I don't see that you did that, and that is what I mean as an example of mismanagement that I hope will not occur again.
I don't have any other questions on that point right now. I will yield, if he is prepared, to the gentleman from California, Mr. Bono.
Mr. BONO. Thank you very much, Mr. Chairman.
Mr. SMITH. Oh, Mr. Bono, will you forgive me?
Mr. BONO. Absolutely.
Mr. SMITH. I'm so used to going to that side----
Mr. BONO. It surprised me, too.
Mr. SMITH. The gentleman from California, Mr. Berman, is recognized--after I make the statement that I value the gentleman's expertise; he has always made constructive contributions to this subcommittee, and he can leave at a time of his own choosing, despite the recommendation of the Chair. [Laughter.]
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Mr. Berman is recognized.
Mr. BERMAN. I actually can't ever remember the Chair recommending that I come to a hearing, little less stay. [Laughter.]
But thank you very much, Mr. Chairman, and I do appreciate the legitimacy of oversight on this issue. We said it at the hearing last year, I guess it was, when the Inspector General testified at the conclusion of his report. Obviously, in the first stage, which was what was done, the only thing that compared with the outrage of it was the stupidity of it. And for the life of me, I cannot understand why an agency or a district or people running and working in a district that had problems adequately staffing their tremendous burden would want to make it look like they had more than enough money to do it, not to mention that there is a fundamental and much deeper question of the misrepresentation, the lies, and I gather some clear conduct afterwards to impede finding out what actually took place.
I have a few questions for Mr. Colgate. First, the little dialog between Mr. Gallegly and you, are we supposed to draw from that an implication that you soft-pedaled, or the Department soft-pedaled, its recommendations of discipline on the cases where you recommended discipline, on the cases where you found--I assume you didn't assume the charges hadn't been proved; you didn't say the charges had not been proved where they had been proved. So on the cases involving situations where you felt the charges were proved, did you soft-pedal your recommendations for discipline because a Merit Board was going to let a nontaxpaying person who fails to file income taxes or threatens his mother and mitigates discipline recommended on those cases--there's nothing to do; we might as well just low-ball this, was that the implication which you were trying to say?
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Mr. COLGATE. Not at all, sir. When I met with Mr. Gallegly--he asked me to come see him yesterday--and what I was explaining to him, though, as the proposing official, sort of like a prosecutor. The IG is the investigator; I'm the prosecutor; Mr. Margolis is the judge in this forum. I have to take a look at the precedents of other cases in order--when I frame my proposal, and I'm always cognizant of what the precedent has been in similar Merit Systems Protection Board cases.
No, I don't consider that I soft-pedaled it at all. As a matter of fact, if you compare some of the cases where the IG made recommendations, I believe by proposing demotions, permanent demotions, in lieu of suspensions, in those cases I actually went further than what the Inspector General proposed. Some of them I mitigated. It's the old prosecutor's job of sitting there with balance, knowing what the precedent is.
Mr. BERMAN. So I should not construe your answers as someone made me do it?
Mr. COLGATE. No, not at all. The buck stops here. I'm fully accountable for the decisions I made, and I know some of them aren't particularly popular.
Mr. BERMAN. OK.
Mr. COLGATE. And I would want to add, sir, that no one--and I want to emphasize this--no one ever tried to influence me in this process at all. I had the absolute support of the Attorney General and the Deputy Attorney General, and I think I did the right thing, and I am pleased with what I have done.
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Mr. BERMAN. What I have noticed so far in this hearing is a reluctance ever to mention a name of any of the people being disciplined. In some places, comments have been made that it would not take a rocket scientist to conclude who you're talking about, but no reference has been to name. I've also read a story which indicates that the Justice Department refuses to comment on who's getting specific disciplines imposed for privacy considerations. Are there statutory or regulatory reasons that constrain any discussion of names at this particular time?
Mr. COLGATE. No, sir, the Privacy Act has an exemption in it that if I'm asked a direct question by you, I will answer it directly. There's a Privacy Act exemption. We are concerned about the privacy interests of the employees. We have an agency to manage and we're concerned about that.
Mr. BERMAN. So you are constrained from answering an inquiry from the public----
Mr. COLGATE. That's correct.
Mr. BERMAN [continuing]. Until this process is completed, and this process is not yet completed?
Mr. COLGATE. In the general sense, that's correct, but you as a Congressman have an exemption in the Privacy Act, but I don't want to get into public debates with reporters or anything like that. That's just not right.
Mr. BERMAN. And then my last question, if I may----
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Mr. SMITH. Mr. Berman, if you will yield for a minute----
Mr. BERMAN. Sure.
Mr. SMITH [continuing]. I just want to point out, and I want Mr. Colgate to confirm this, that the exemptions under the Privacy Act are very, very broad for Members of Congress. You can make the names of any individual public whom you want to. It's, as I think you're saying, I would say the same thing; it's probably better to err on the side of caution so as not to prejudice any case, but I think it's clear that, if we wanted to, we could.
Mr. COLGATE. That's my understanding, sir.
Mr. BERMAN. And then just my final question: there's been specific discussion about the--I forget the title of the position, the congressional liaison from INS, and the assertion has been made that mismanagement and wrongful conduct has not been punished. I understand the situation to be that the allegations and assertions against this person were not proved. But yesterday at a hearing in an appropriations subcommittee the Inspector General
said--referred to this person as the person responsible for obstructing the investigation. Notwithstanding, I assume, knowledge of the process that you've described here and the conclusions you came to, I'd like your view on your assessment of the validity of that assertion.
Mr. COLGATE. I found that that person violated no rule, regulation, and there was no chargeable issue. I was concerned regarding some management issues--style, management style of the employee--that needed further consideration, but I could not make the finding that that individual violated any rule or regulation, nor could I find that that individual obstructed anything.
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Mr. BERMAN. Obstructed the investigation?
Mr. COLGATE. I could not. I would not. And if I had evidence of that--if I had concrete evidence of that--that would have been a chargeable issue.
Mr. BERMAN. Just a gratuitous comment to conclude: in my own opinion, there is a style issue here. That person does not understand as one should fundamentally that station and respect and deference that those of us who have been elected to this august position should get constantly from everyone.
Mr. SMITH. OK. Thank you, Mr. Berman.
On behalf of Mr. Gallegly, without objection, I'm going to enter into the record the IG's statement about the individual in question.
[The information follows:]
INS DIRECTOR OF CONGRESSIONAL AFFAIRS PAMELA BARRY
In preparation for the Delegation's visit, INS Director of Congressional Affairs Pamela Barry directed Miami District management and the Dade County Aviation Department that ''no one should discuss [Miami Airport's] staffing problems with the [Delegation].'' Barry also instructed that ''it was 'inappropriate' to make comparisons with Miami Airport and the JFK airport as there were other variables that made such comparisons unfair.'' While she admitted issuing the latter instruction, she denied the former.
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Barry's denial is not credible in light of the other evidence in this investigation, including the testimony of a non-INS witness. Barry's instructions were the source of corresponding directives issued by Blake at the June 8 meeting at Miami Airport. Blake was told about Barry's instructions by Special Assistant for External Affairs George Waldroup, who heard them directly from Barry in the presence of other witnesses.
Because Barry was responsible for planning the Delegation's trip for INS Commissioner Meissner, her instructions carried significant and understandable weight within the District. Her advance visit itself telegraphed the extreme importance of the visit. Her instructions transmitted the unfortunate message that INS Headquarters did not want the Delegation to learn about arguably the most significant problem at Miami Airport. It seriously upset not only INS employees but also the Dade County Aviation Department, who saw the Delegation's visit as a potential opportunity to obtain Congressional assistance in solving the problem.
Moreover, Barry's instruction may have contributed to Blake's decision to direct Airport managers to fully staff the primary inspection booths, which artificially eliminated the staffing problem for the day. Moreover, Barry's instruction disapproving comparisons with JFK conveyed not only the substantive message, but encouraged the notion that District management could restrict and control the content of its employees' speech. That notion may also have contributed to Blake's apparent willingness to direct her subordinates to lie about the type of aliens incarcerated in the hard secondary holding cells.
Barry certainly played an important role in establishing a tone for the Delegation's visit which discouraged candor. As is the case with other high-level INS managers, her own lack of candor during this investigation is also particularly disturbing.
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On the basis of the evidence obtained in this investigation, we question whether Pamela Barry can retain a sufficient level of confidence and trust among members of Congress to maintain her present position as Director of Congressional Affairs. Her admitted efforts to mislead Congress directly conflict with her present responsibilities. At the very least, her conduct in this matter warrants a suspension of from 15 to 30 days.
Mr. SMITH. The Chair will now recognize the gentleman from California, Mr. Bono.
Mr. BONO. Thank you very much.
Mr. Colgate, just some legal questions that I'm trying to formulate a picture in my mind. Would the obstruction of the inquiries that went on here, and when we got at our first hearing by the Justice Department, they indicated that there was an obstruction or maybe a different term; no one would cooperate or an apparency of obstruction. Was it an obstruction by the employees of the INS? Was there intentional obstruction of data-finding or an inquiry, or whatever you want to call it? Were they intentionally trying to prevent you from finding out the information?
Mr. COLGATE. I believe that there were employees who did not cooperate with the investigation and who provided misleading information, and they were demoted, suspended, or removed from Federal service for that.
Mr. BONO. Would that be the equivalent of obstruction of justice from a civil standpoint?
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Mr. COLGATE. That is--you're over my pay grade, over my head. I'm not an attorney. That would be something that the IG has referred to our Office of Public Integrity. That's within the Criminal Division. And they would look at whether or not that conduct met the statutory provisions of obstruction of justice. That's outside of my administrative disciplinary process, if I understand your question correctly, sir.
Mr. BONO. Yes, it's outside of mine, too. It just--being just a guy, it appears to me that it's just note for note an obstruction of justice because the idea is for Congress to find out what's going on, and as Ms. Meissner said, she wanted to find out what was going on, and they wouldn't tell her. Frankly, I'm surprised, if these are the extent of the penalties, that someone would kind of after getting caught, would furthermore get in your face and thumb their nose at you. And only one employee was removed?
Mr. COLGATE. One employee was removed from Federal service; that's correct.
Mr. BONO. What's wrong with this picture? And there's a lot, unless you walk through a mirror and you talk to a rabbit. How about on the civil front again, if there was a jail, let's say, and the guard just decided to let out 40 percent; I don't know if that comes in your realm as well, but would that be a crime?
Mr. COLGATE. I would have to defer to someone in the Criminal Division.
Mr. BONO. OK. My guess is----
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Mr. COLGATE. Would that be an actionable thing that we could take disciplinary action? Yes.
Mr. BONO. Not you, no, I'm saying, would the civil government take it? Would they consider that a crime, the equivalent of what happened here?
I'll go out on a limb, and bet you my house that that would be a punishable crime.
Mr. COLGATE. Congressman, I've learned some interesting things about crime. Sometimes we have to prove intent. It's not only an action, but we have prove to intent, and I'm always amazed at the standards and the interesting concepts of the law.
Mr. BONO. I am, too. [Laughter.]
I'm in awe of it.
What can you say to this? What can you say when we know what occurred, and only one employee was removed? My goodness. Four were demoted; one voluntarily resigned; six employees suspended without pay for periods of 2 days to 15. That's staggering. And then two employees are not disciplined. They kind of slid.
To have this going on, to be a Congressman, to try to represent the public, to try to represent this issue of illegal aliens and criminals being let into the country, and to bust somebody to the degree that we busted them, and for this to be the results of that--now they can appeal this; is that correct?
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Mr. COLGATE. That's correct. They have 15 days to appeal for those items that would be handled internally, which are called grievances, and they have 30 days in which to file appeals, it's my understanding, before the Merit Systems Protection Board for those penalties that are in excess of 14-day suspension, or a demotion or removal from Federal service.
Mr. BONO. Yes; I think if you'd take them out to dinner, they may let you off the hook and not sue. If they mitigate this, then we're going to owe them money.
Mr. COLGATE. And attorneys' fees.
Mr. BONO. And attorneys' fees. It's staggering to have these things occur in government and to have the public--we should be above all that even more, and for this to be the result of that kind of coverup, lying to Congress on purpose, letting criminals into the public sector--I don't know what to say. I am more in awe of that. I'm flabbergasted. And if these are the results, and then these will probably get mitigated, it's a pity.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Bono.
The gentlewoman from California, Ms. Lofgren, is recognized.
Ms. LOFGREN. Thank you, Mr. Chairman, and I am pleased to be a member of this subcommittee in the 105th and look forward to working with all of you throughout this Congress.
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When the IG's report was issued last year, I never anticipated being a member of this subcommittee, but I was concerned about it and did obtain a copy and read through it, and talked to the inspector general for quite some time about the report. As with, I think, all of the members of the subcommittee, I found the report to be enormously disturbing and alarming and upsetting. As with some other comments made, it does seem that the discipline proposed is not extremely harsh, but perhaps it is what is required through precedent and the like. I'm certainly not going to sit here and second-guess the professional who's job it is to look into this and who obviously took that responsibility quite seriously and with a lot of integrity.
However, as I listened to the Commissioner, it was clear to me that the level of concern that I felt was felt by her as well, when she learned of this incident, and that she was shocked, frankly, by the discovery.
And that really leads to my underlying concern and question. You can't do something like this in a district office with just one person. It's a number of people that need to work together to do something this wrong successfully. I think that really talks to a culture that has developed in a particular place that will allow that kind of behavior to be promoted and tolerated by others. Now,
luckily, there were some employees who blew the whistle on it, but as I think about the culture that develops, the concern I have is that this culture might have permeated or be outstanding in other parts of the agency, unbeknownst to any of us. If I knew something, I would certainly tell you.
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But I'm wondering what efforts, other than the INSpect item that you had mentioned in your testimony, you've put in place to really open up the possibility that this lack of candor could be present in other parts of the agency. I was thinking of the hearings we held last year in the Crime Subcommittee about the efforts the Justice Department put in place with the labor union when misbehavior was clearly identified, and the hotlines that were put in place with FBI agents, or former FBI agents, retained. So that the whole culture could be changed and employees rewarded for speaking out. What other efforts are you doing in that regard, Commissioner?
Ms. MEISSNER. Well, there are many efforts, management efforts as well as actions against individual employees or where individual employees or managers are involved that we have been pursuing. I have used the term in this testimony, and I would repeat it here, of a culture of accountability. I am very concerned about organizational culture. I think organizational culture and leadership tone are extremely important, and they have not been adequately addressed, in my view, in the Immigration Service over many years. Ultimately----
Ms. LOFGREN. I would agree with----
Ms. MEISSNER [continuing]. To transform an agency, you have to address the organizational culture. It is my commitment to, in fact, transform this agency. The culture question is sort of the final bedrock phenomenon which must be confronted in order to make that transformation.
We have a whole series of initiatives underway. First, we talk about it a great deal. Second, we take disciplinary action wherever it is required, and as it comes to our attention, and we have taken management actions or discipline actions and used a variety of personnel tools at our disposal throughout the last several years, where very senior people are involved. There has been in this organization not enough attention to the senior-level people and their responsibility to set the proper tone and to insist on rigor. When you take actions like that, it has some real resonance in the rest of the organization. I've been willing to do that, and I am willing to continue to do that.
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We have put much tighter controls into place where expenditures of money are concerned, where monitoring of outcomes and results are concerned, again to foster accountability and rigor. The INSpect Program that I described is another step along that road. I would be happy--my time is up, but I would be happy to provide you a more comprehensive picture in followup if you would like.
Ms. LOFGREN. Are we going to have a second round of questions?
Mr. SMITH. Yes, we will.
Ms. LOFGREN. I'll just wait until my time----
Mr. SMITH. Thank you, Ms. Lofgren.
Ms. LOFGREN. Thank you.
Mr. SMITH. The gentleman--thanks for his attendance and patience--the gentleman from Tennessee, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
Mr. Colgate and Ms. Meissner, I want to go in a slightly different direction because I suspect that, no matter what happens today, there are going to be those who are not satisfied with the outcome. I'm concerned, following Ms. Lofgren's questions, about the culture within the Service, and in particular, given the response of a number of the members of the subcommittee to the discipline that was taken, the response of those employees who are in the Service, and what effect this action and the response to this action has on morale within the Service that I suspect probably feels itself under siege too much already anyway. Well, the IG's report indicated there were hundreds of employees that were interviewed, and I don't know if you did that or read the reports afterwards, and I also understand that generalizations are not really fair, but can you characterize the morale, the response, of the other employees in that district and their attitude both toward what happened and what has happened in the way of discipline since?
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Ms. MEISSNER. I think it is--certainly, for me, this has been the most disheartening experience that I have had to face in my time at the Immigration Service. I think for most employees in this organization they, too, are very disturbed and understand that this incident is not a proud moment for their organization. We have tried very carefully to balance the issues of overall morale with the issues of the rights of the employees in the disciplinary process. It is crucially important for us that this process has now come to a conclusion, so that the black cloud that has been hanging over the organization for 1 1/2 years on this matter can, we hope, be dissipated.
Actions like this, however, speak very, very loudly within an institution, and there is a very important resonance to these actions. These are serious punishments. The employees in the Immigration Service and in any other Federal agency understand how serious these punishments are. A suspension is not to be taken lightly. A demotion is absolutely not to be taken lightly. It affects an employee's entire future career in terms of salary, promotion capability, and retirement benefits. And obviously a termination is highly unusual.
Now we want those actions to stick in the review process. It would be very unfortunate if those actions were mitigated. But we will defend them vigorously. The Department will assist us in defending them vigorously. I believe they have been fairly arrived at, and I believe that they will be sustained.
We will build on these actions to send strong messages throughout the institution. I met with the senior management of the Immigration Service last week, the day these were announced, in order to draw out and specify clearly the implications of these actions for accountability and integrity in the Service. I will send out a message to all employees in the organization announcing not only the actions, but spelling out what lessons need to be drawn from it. I have spoken to this issue at our annual conference to 300 top field managers throughout the organization. We will drive these lessons home. At the same time, we need to be able to move on in the best interests of the vast majority of our employees who do their jobs in a professional fashion and who want to be proud of the organization they work for.
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Mr. COLGATE. If I could just add, as being a career civil servant now for 21 years, I can assure you that these are very, very significant punishments. I know that there've been concerns raised by members of the committee, but as a longtime bureaucrat--and you're looking at a long-time bureaucrat--when you're dealing with demotion, basically, the suspension will stay in that person's official personnel file for the rest of their career. It's never taken away. I mean, it sends a significant message to the bureaucracy: this type of a comprehensive approach.
I know I've gotten a little caught up in my zeal and concern with the Merit Systems Protection Board, but I can tell you, sir, that these types of actions send a significant signal to the bureaucracy that we want our employees to act honorably, and even if directed by a superior to do something wrong, don't do--don't take that action, because it will result in discipline against you as an individual, and in a bureaucracy if an organization--and we've got about 110,000 employees in the Department of Justice; this sends a strong message because these are significant sanctions when you're looking at the Federal civil service.
Mr. PEASE. Thank you both. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
Commissioner, let me go to my questions here. In September 1995, Inspector General Bromwich sent you a memo requesting that your office ''provide any and all records relating to the request, planning, and preparations for the Congressional Task Force's visit to Miami generated or maintained by you and any member of INS Headquarters and Eastern Regional Staff.'' When you responded, the inspector general reports that you provided ''no materials from the Eastern Region. You assigned Deputy Director of Internal Audit William Rightor to handle the response. The documents produced by Headquarters consisted only of the Commissioner's briefing book for the delegation's visit'' and assorted other materials from the congressional liaison.
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The inspector general later discovered, in fact, that many, if not all, the relevant documents that should have been included in your submission were not included. The staff of the Executive Associate Commissioner for Field Operations at INS headquarters told Mr. Rightor that ''neither this office nor the [Eastern Regional Office] has any documents that would fulfill the request.''
Now we know that documents should have been produced, including the so-called smoking gun E-mail--the E-mail stating that alien inmates at the Krome were ''to be stashed out of sight for cosmetic purposes'' when the congressional delegation was visiting. Now the inspector general's request for those documents was directed to you personally, as I understand it; is that correct?
Ms. MEISSNER. That's correct.
Mr. SMITH. And so you----
Ms. MEISSNER. I believe so, but I take that----
Mr. SMITH. And so you were responsible with the Inspector's request. Isn't it your responsibility to make sure that what the Inspector General requested was supplied to him and a good-faith effort was made to supply those documents from those two locations?
Ms. MEISSNER. Yes, it is, and in response to that request for documents, I asked our Office of Internal Audit, which has the responsibility for coordinating such matters throughout the Service, to do exactly that. The instructions were sent out. The document searches were done. The fact that the E-mails did not come forward from the eastern region is exactly the problem in this investigation. In other words, the eastern region was not forthcoming, and individuals that have been disciplined in this process were not forthcoming. They did not comply with those instructions.
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Mr. SMITH. Right, I understand that, and I understand that they did not comply with the instructions. But in this case, you had a specific request addressed to you that the documents from those two locations, INS headquarters and the eastern regional staff, be supplied. It's pretty obvious to anybody who took any trouble at all to look at the response that documents from those locations were not being supplied. And, again, I just don't think you can say, ''It wasn't my responsibility; it was the responsibility of the staff, and they messed up.'' In this case it's obvious that the request was not being complied with, and it seems to me that you need to take responsibility for that.
Ms. MEISSNER. I am responsible for those matters. I have taken responsibility for these matters, in that these people are no longer serving in the positions that they were serving in.
Mr. SMITH. Well, again, I'm not talking about current sanctions that were imposed. I'm going back to the question of management accountability at the time that the requests were made. And as I showed a while ago in my questions about the public health and safety, and as I'm demonstrating now, I believe in the case of requests made to you there was a lack of responsiveness. There was a lack of accountability at the time that you had an opportunity to make sure that either the request for documents were complied with or that the public safety could be protected.
Now I think you see where I'm going here and I hope that I've made my point with you.
Ms. MEISSNER. I do see where you're going here, but I do believe that the record is quite clear that we, not only in my office and in headquarters, complied, and we were very responsive to the inspector general on reissuing instructions, reasking, when it seemed that there was not sufficient information coming forth, and this inspector general had, I think it's fair to say, a very difficult time
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unearthing documents that had been covered up.
Mr. SMITH. Right. But to say you were cooperative----
Ms. MEISSNER. When an investigation is going forward, we cannot do a separate track investigation ourselves of our own employees. We can only----
Mr. SMITH. Commissioner Meissner, that's off the subject. I'm not suggesting that you should have conducted these other investigations. I'm talking about when you had the opportunity to take charge and to make sure that the public safety was not endangered in the case of the point I made a while ago, and in this case to make sure that the requests by the inspector general were complied with--you didn't do so. In the case of the public safety, it would have required a couple of hours and then one phone call from you to make sure that the public health and safety was protected. In this case it would have taken nothing more than your looking at the cover letter of the response to realize that it wasn't responsive.
I'm not talking about what came afterwards; I'm not talking about sanctions imposed on those individuals who misrepresented or were less than truthful or that were obstructionists. I'm talking about, again, what appears to be to me a lack of management. It's as simple as that.
You're welcome to respond, and I'll recognize you.
Ms. MEISSNER. I do take responsibility for the operations of this organization. I have in these particular cases issued instructions properly, made requests for information properly. They were not complied with. That goes to the core of accountability. Accountability failed here, and that is clearly a weakness, and I take responsibility for correcting that weakness.
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Mr. SMITH. OK, thank you, Commissioner Meissner.
We'll go to the gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Thank you, Mr. Chairman.
I think I had my first contact with the Immigration Service in about 1970, and some of the people who I dealt with at that time are still in the agency. So the bureaucracy has a life of its own, and Commissioners--a lot of them have come and gone in the time period since I first had my contact--are by their very nature moving through, and that will include you eventually probably.
And so my question is: what efforts can we put in place collaboratively? Because I am convinced that this committee and you share the same goals for an agency that is efficient and honorable and carries out the laws of the United States in a way that we're proud of. We all want that. What kind of systematic changes can we put in place to make sure that this happens in the agency, if you weren't even there? I understand the chairman's comments about personal accountability, but for someone in charge of a large agency you always have to delegate some things. It is physically impossible to do everything, and in retrospect, I'm sure you wish you had personally looked at the cover letter----
Mr. SMITH. If you would yield----
Ms. LOFGREN. Yes.
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Mr. SMITH. If you were the head of the INS and you got your first request from the inspector general that involved all the allegations that you're aware of, wouldn't you take more than a passing interest in the response?
By the way, there's a--well, I won't mention somebody who is in Congress that also failed to do that and what happened to him, but----
Ms. LOFGREN. You know, I was once a defendant in a civil action as a member of local government, where the county had alleged to do a thing; it wasn't about me personally. And, in fact, I did personally go through my files and find the documents that were solicited, and I understood then my obligation. However, to make my point, I think perfectly honorable, responsible people in charge of large organizations do delegate many activities, and there's nothing inherently wrong with that unless the system fails, and clearly this system failed in this case, and my concern is that it may be failing us in many aspects throughout the agency, in ways that we may not yet even know about. And there is no system in place that I'm aware of to uncover that.
I guess one question I have is whether the agency ever solicited and had undertaken a management audit of the Immigration Service and solicited recommendations from some of these management audit firms that do that? Have you thought about that?
Ms. MEISSNER. We've had--and will continue to have--many outside support efforts. We've just finished, for instance, a major effort with the National Academy for Public Administration looking at our fiscal accountability processes and our budget execution and planning activities. They've given us some very insightful recommendations which we are implementing. In our areas of systems and data processing, we have substantial outside, very-best-in-the-industry support. We are in an ongoing dialog with those outside experts on the best way to build systems that have controls in them that make our work more efficient, that integrate our data bases, the sorts of things that are critical infrastructure in today's environment for not only accountability, but efficiency and effective performance on the part of employees.
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So we are very open to that, and we're working very closely right now with the Big Eight auditing firm, Peat Marwick, on a series of issues that have arisen surrounding the citizenship program. As I say, I would be happy to give you an inventory of all of those.
Ms. LOFGREN. I would love to get an inventory of the outside reviews that you have obtained.
[The letter follows:]
U.S. Department of Justice,
Immigration and Naturalization Service,
Washington, DC, May 2, 1997.
Hon. ZOE LOFGREN,
U.S. House of Representatives,
Washington, DC.
DEAR CONGRESSWOMAN LOFGREN: I am writing to follow-up to your inquiries during Commission Meissner's testimony on February 27, 1997, before the House Subcommittee on Immigration and Claims, concerning professionalism initiatives Immigration and Naturalization Service (INS) has taken, outside reviews that have been conducted of the INS, and a study on worklife.
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PROFESSIONALISM INITIATIVES
The following describes the Fiscal Year 1997 (FY—97) Professionalism tasks undertaken by the INS Office of Human Resources and Development including (1) Advanced Training for Officer Corps Personnel, (2) the Sustainment Program, (3) the Competency-Based Assessments for Promotion to Managerial Positions in the Border Patrol, and (4) Training on the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
(1) Advanced training for Officer Corps Personnel.--The Training and Development Branch has assessed the needs of the journeyman officers and developed a training schedule. As of March 31, 1997, 660 officers had attended 29 advanced training classes. By the end of the year, training will have been delivered to 2,000 officers in over 80 classes, rather than the projected 1,700 officers in 70 residential classes. The goal in FY—97 is to fill every available training slot to reduce the backlog of advanced training requirements. We have hired a contractor to assist in analyzing the training needs to offer recommendations for other-than-residential courses. This will be completed by the end of the fiscal year.
(2) Sustainment plan.--The Sustainment Plan was proposed, and is being developed, in order to minimize losses in officer corp and non-officer corps occupations. Major components of the Sustainment Program include: Employee Assistance Program, Assimilation, Worklife Programs, Retention Support, and Managerial/Supervisory Awareness. We are preparing a proposal for reprogramming which will provide combined Recruitment and Sustainment Program resources for the field.
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The Sustainment Plan will unify and augment some current programs and include new programs designed to support our employees and their families. As part of our Growth Management initiative, a supplemental study has been completed which has identified initiatives to improve our overall effectiveness at orientation and assimilation. Approximately one-quarter of these initiatives are underway. For example, we conducted a survey and focus group interviews to identify what was important to new employees and their families; we are enhancing publicity to inform all employees about the Employee Assistance Program; we are developing and providing spousal employment assistance services; we are preparing welcome/support letters to new officer corps personnel; and we are developing sponsorship programs.
(3) Competency-based assessments for promotion to managerial positions in the Border Patrol.--The universe of potential applicants for promotion to managerial positions is about 6,000 persons and were all offered the opportunity to take the assessment. Approximately 2,000 responded, of which 1,000 decided to actually participate in the program. Assessments were completed by February 21, 1997. The data has been analyzed and has permitted us to reach the target of March 31, 1997 for phasing in the new system, and terminating the old system, for managerial promotions in four Border Patrol Sectors: El Paso, San Diego, Tucson, and Miami. In Phase Two, the cycle of announcing assessments, applying for, and taking
assessments will repeat and the next four Sectors--McAllen, Lardeo, El Centro, and Del Rio--will phase in the new system by June 30, 1997, as scheduled. All assessments will be administered by the end of the fiscal year. The new system will be in use throughout INS by January 1998.
At each stage of implementation, the system will be evaluated in order to make operational improvements, if necessary. Careful monitoring of resources will be conducted at every step in order to ensure the achievement of each milestone according to time-lines. Lastly, databases will be created to permit a return-for-investment study in FY 98.
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The INS has also developed a self-administered ''Manual of Job-Related Thinking Skills'', the first of its kind in INS history, and distributed 9,000 copies to sectors and districts.
Data from all 2,000 applicants have been entered into the Competency-based Assessment Database. The scores from the four assessment instruments are entered into the database as the answer sheets are received. This database will contain identifying information, assessment scores, and vacancy application records. It will serve as the source for referring names of Border Patrol supervisory and managerial promotional candidates to selecting officials. Preliminary examination of the raw data, as of January 30, 1997, demonstrates that the assessment is a true indicator of the qualities desired in a manager. Also, the scores are in a very desirable range, indicating that we have excellent managerial candidates. We expect to have an operational database, to support the new promotional system, ready by the end of the fiscal year.
(4) 1996 IIRAIRA training.--In January, the INS Deputy Commissioner approved a plan developed by the Training and Development Branch which delivers the training in two phases. Phase One provides training on the law and the regulations which went into effect April 1, 1997. At our training facility in Glynco, Georgia, over 300 trainers have received intensive ''Train-the-Trainer'' sessions. These trainers trained field components by April 1, 1997. As of April 1, 1997 over 12,000 employers have received this training. Phase Two will ''Train-the-Trainer'' on the final implementing regulations and will be occupationally-specific. This phase begins no later than 30 days after the final regulations are published, but we are projecting August 4, 1997, as a start time. The goal is to complete the field training by September 30, 1997.
INVENTORY OF OUTSIDE REVIEWS
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The INS is reviewed by the Department of Justice (DOJ) Office of the Inspector General (OIG), the General Accounting Office, and the Management Planning Staff within DOJ. Although much of the work is initiated by the review organizations, INS has made several requests for reviews in areas where an independent assessment was needed. Listed below are reviews that were initiated based on the Service's request. Several outside reviews of INS by independent contractors are also identified.
1. Review of administrative services.
a. Management Planning Staff within DOJ assessed delivery of various administrative services within INS.
b. Completed February 1996.
2. Deployment Planning and Simulation Systems.
a. INS' Office of Policy and Planning is reviewing the ''Integration and Continuous Improvement of INS' Deployment Planning and Simulation System''.
b. Anticipated completion June 1997.
The following are reviews of independent contractors:
1. Review of budget process.
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a. National Academy of Public Administration completed ''Budgeting for Performance: Strategy, Flexibility, and Accountability to meet Demanding Mission''.
b. Completed January 1997.
2. Review and establish appropriate user fees for services.
a. McNeil Technologies, Inc.; sub-contractor Coopers and Lybrand conducted Phase I. Develop a more consistent and reliable cost accounting methodology, and produce a legally defensible Examinations Fee Account Fee Schedule.
b. Completed November 1996.
a. Phase II. Expand Exams Fee review, initiate review of Immigration User Fee.
b. Anticipated completion November 1997.
3. Citizenship USA naturalization process.
a. KPMG Peat Marwick review of recent naturalization; ensure quality assurance procedures are followed; review INS/FBI fingerprint interface.
b. Completed April 17, 1997.
a. Coopers and Lybrand is conducting a 2 year contract on reengineering of the naturalization process.
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b. Anticipated completion March 1999.
4. Information resources management studies.
a. Booz-Allen-Hamilton conducted an ''Independent Assessment of Automation & Technology Initiatives'' which determined that the INS technology initiatives move INS cohesively toward the agencies' goal of an integrated data systems support.
b. Completed January 5, 1997.
a. Independent Assessment of INS Technology Initiating contracting process now; contractor to be determined. In-depth assessment of accomplishments, their costs and benefits, whether worthwhile; as well as assessment of costs to complete and if the benefits will be worth the costs.
b. Anticipated completion September 1997.
5. Administration business process reengineering efforts.
a. Futron, Inc. conducted a review of Headquarters Procurement Process Assessment and Management recommendations that determined improvements needed in HQ Procurement Process.
b. Completed January 1997.
a. Logistics Management Institute is conducting a review of Facilities Management Process to develop, improved processes, write handbooks, develop project tracking system.
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b. Anticipated completion September 1997.
6. Records centralization to improve data integrity.
a. EDS conducted a ''National Record Transition Plan Study'' that updated studies proposing the centralization of INS records.
b. Completed January 30, 1996.
a. EDS conducted a ''Los Angeles Pilot Plan'' that proposed a concept-development site to demonstrate the feasibility of centralizing records nationally.
b. Completed May 23, 1996.
OTHER EFFORTS
In addition, on September 9, 1996, I announced the immediate and full implementation of an internal review process which has been under development since June 1995. The INS Program for Excellence and Comprehensive Tracking (INSpect) is designed to ensure quality, accountability and professionalism at all INS field offices. INSpect provides for a comprehensive, top-to-bottom review process responsive to the information needs of INS managers at all levels. It is not a 100 percent review of each function of a field office; instead, it focus on those areas within each function which: are highly vulnerable to fraud, waste, abuse, or mismanagement; require compliance with rules, regulations, and procedures; and are high priority and/or interest. INSpect also provides INS with the capability to review the operations and management of each of its field offices every two or three years.
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WORKLIFE STUDY
The INS commissioned a thorough examination of its attrition by the LEADS Corporation/Hay Group, who prepared the enclosed ''Attrition Analysis and Study for the Immigration and Naturalization Service: Study of Work Life and Improvements Needed.''
Although the study showed that the agency did not have attrition problems, it pointed out areas of concern on which the Service should focus to provide support and services to our employees. Specifically, there are three areas that require attention. First, most attrition within the INS occurs within the first two years from the time an employee starts work. Second, there are specific locations where attrition is higher than at others. Third, while voluntary losses are relatively small, they are increasing.
Furthermore, INS is in the process of updating the INS Strategic Plan, which has been in place since FY 1994. In revising the Strategic Plan, INS will follow the requirements of the Government Performance and Results Act, including identifying long-term performance goals with results-oriented performance measures. The Service began the process of updating the Strategic Plan in December of 1996, when focus groups were held with INS Field managers, including Regional Directors, District Directors, and Chief Border Patrol Agents to learn of their thoughts on trends affecting INS activity and where they believed INS should be in the Year 2005. INS plans to hold other focus group sessions with external INS stakeholders before a revised Plan is completed.
The INS initiated the annual Commissioner's Priorities process in FY 1994, which is tied to the strategic directions and issues identified in the Strategic Plan. Each year, the INS identifies the Priorities and assigns executive staff to be in charge of the overall implementation objectives, strategies, approaches, and expected results. Quarterly reports are prepared for each Priority and the Commissioner conducts quarterly reviews with senior managers and Field representatives to discuss major accomplishments, cross-cutting issues, and any implementation problems. Year-end reports are prepared on each Priority which summarize annual accomplishments.
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The Service is also in the process of developing an annual master planning calendar, which interrelates strategic planning, priorities, and budget formulation cycles.
The INS has implemented several initiatives to date within the Service and with outside independent contractors to improve the quality, accountability and professionalism of the Service. I look forward to working with you on these initiatives and others to improve the effectiveness of the INS.
Should you have additional questions or would like to discuss further these initiatives please do not hesitate to contact me at 514—5231.
Sincerely.
For the Commissioner.
Allen Erenbaum,
Acting Director, Congressional Relations.
Ms. LOFGREN. But if I'm incorrect, I'm sure you'll let me know, but it sounds as if you are appropriately soliciting advice and help on specific types of tasks; for example, accounting systems and the like. But I'm thinking of a management audit system that really looks at the culture question put in place earlier more than whether our computer system need upgrading, and from what I've seen of it, it does. There's always going to be--generally, in whatever institution, some people will let you down and some people won't, and there's just a level of that in business, in government, in the world.
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But when we get into a situation of a culture of misbehavior or inattention, then we have a different type of problem, and I am not convinced that we have within the agency mechanisms to let that be revealed and corrected, and that is what I'm interested in.
And if I may, Mr. Smith, even though the light is on, I had a question as to the employees that blew the whistle on this. I know that you've assured yourself personally that there's been no adverse impact on them, and I commend you for that. Have any additional steps been taken to recognize in a positive sense the employees that were the whistleblowers in this case and in some systematic way do they get a little award or a plaque they can put on their wall? I mean, are they known and commended publicly?
Ms. MEISSNER. I believe that they're known among their colleagues in Miami. As I say, several of those employees have been promoted. We have, in addition, however, made a major effort to revitalize the labor-management relationship in Miami as a result of this, because it's quite clear that there had been a serious breakdown in internal communication. And we've done a considerable amount of work training and bringing in intermediaries to open up those lines of communication, so that this sense of isolation that these employees obviously felt would be addressed.
On your earlier question about the culture issue, we actually have had two very helpful efforts underway. One has been a very thorough study over the last 2 years that goes to the questions of work life and what needs to be addressed in order to improve in the areas that you're talking about, and I'd be happy to brief you on that.
In addition, we've just introduced a very important change called competency-based testing and promotion for our employees. We will no longer be promoting people simply on the basis of seniority, which has tended to reinforce existing networks and existing relationships. We are now testing all of our employees and looking at them for promotion purposes based on their skills and their ability to do the next level of job. It's a progressive change that will really breathe fresh air into the whole promotion system in a way that goes to those mechanisms and institutional tools that you're talking about, I believe.
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Ms. LOFGREN. OK. I think rather than pursue this, I would love to review those reports that you've mentioned, and then perhaps if we have additional questions, you and I can talk or perhaps we can reconvene a hearing and go through some of those.
But I would recommend, in the for-what-it's-worth department, some formal effort to commend all of the employees who took the risk of signing that letter. I think that might give a good message to all the employees of the agency.
Ms. MEISSNER. Thank you.
Mr. SMITH. Ms. Lofgren, do you have any other questions? I do not. I'm just going to make a final statement, but if you had any others, I was going to recognize you.
Ms. LOFGREN. No, Mr. Chairman.
Mr. SMITH. OK. In my judgment--and just to give a final conclusion as to my observations--I think that what we have in regard to the Krome case, from my point of view, is that there was either negligence or mismanagement on the part of the INS top management. I hope and expect, and take the Commissioner's word, that this has changed, but I think it has changed in large part because of the IG's investigation and the Justice Department's imposed penalties.
The good news is that the corrective system has worked. As for the future, there will be many opportunities--Commissioner Meissner, I'm directing these comments to you--there will be many opportunities for the INS headquarters to show that it has learned from experience and is ready and willing to restore its credibility.
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So I thank you both for being here today. We look forward to your continued good work, Mr. Colgate, and to continue to work with you, Commissioner Meissner, to do as you and I both want to do, and that's restore the integrity to the institution that you oversee.
Ms. MEISSNER. Thank you, Mr. Chairman.
Mr. SMITH. Thank you.
The subcommittee is adjourned.
[Whereupon, at 2:43 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
LETTER (and Attachments) From Commissioner Doris Meissner, Immigration and Naturalization Service, to Chairman Lamar Smith, Subcommittee on Immigration and Claims, Dated February 24, 1997
U.S. Department of Justice
Immigration and Naturalization Service,
Washington, DC, February 24, 1997.
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Hon. LAMAR SMITH,
Chairman, House Subcommittee on Immigration and Claims, Judiciary Committee, House of Representatives, Washington, DC.
DEAR CHAIRMAN SMITH: I am writing in response to your correspondence of February 18 requesting answers to questions in preparation for your hearing to be held on February 27.
The following is provided:
Question 1. On what basis was the decision made to have Assistant Attorney General for Administration Stephen R. Colgate, and not the INS, determine the disciplinary measures to be taken against INS employees who engaged in misconduct related to the Congressional Task Force on Immigration Reform's fact-finding visit?
Answer. In light of the seriousness of the allegations, and to ensure consistency and fairness of discipline that could result from the Inspector General's (IG) findings, I requested, in a memorandum dated June 20, 1996, to the Deputy Attorney General, that the Department of Justice conduct and decide on appropriate disciplinary actions against any individuals found to have abused the public trust. (TAB A) In that memorandum, I offered to assign Immigration and Naturalization Service (INS) employees to provide technical advice and staff support to aid the proposing official (AAG Colgate) in his considerations.
Deputy Attorney General Gorelick designated AAG Colgate, the highest ranking career official at the Department, to be the proposing official for the disciplinary process. On June 25, 1996, I identified three INS career employees, comprised of an attorney, supervisory detention officer and employee relations practitioners, to be available on a full-time basis, for the Department's use. The INS remained separated from both the investigative and disciplinary process.
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Question 2. In correspondence dated June 27, 1995, and sent to Representative Elton Gallegly and other members of the House of Representatives, officers of Local 1458 of the American Federation of Government Employees enclosed a complaint signed by numerous INS employees alleging the deceptions referred to above. Have any adverse personnel actions (including, but not limited to, transfers, demotions, and pay decreases) been taken against any officer of Local 1458 or any of the signatories of the complaint? Have any other instances of retaliation occurred?
Answer. The INS has a photocopy of the letter sent to Congressman Elton Gallegly dated June 27, 1995, and signed by various officers and members of Local 1458 of the American Federation of Government Employees. Four union Executive Committee members are identified on the letter with printed names and titles. At the end of the letter are employee signatures. They fill the last page and run over onto the top of another page. Many of the signatures are illegible, either because of handwriting, or because they ran off the page when photocopies.
We have compared the names in a log of disciplinary actions in Miami with the names that we can decipher in our copy of the letter. To the best of our knowledge, none of the employees has been the subject of disciplinary action for any reason. One of the signatories to the letter has had discipline proposed against him since June 1995. That employee received a proposal to discipline for his recruitment of fellow employees to engage in illegal job action. The events that gave rise to the discipline proposal took place in May 1996, and were the subject of an investigation. Upon completion of the investigation, the proposal to discipline was issued in December 1996. The employee received his statutory rights to review the information on which the proposal was based and to reply. No decision has yet been issued. I have attached the Miami District report of Merit Promotions. (TAB B)
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In the Miami Management Review briefing with your Subcommittee staff on January 21, John Physioc, Special Assistant to the Executive Associate Commissioner for Field Operations, advised of disciplinary action against an individual who was a witness in the IG's investigation relating to the incident between Mr. Wixstead and Mr. Waldroup. That employee was disciplined for mistreatment of an alien in October 1995. The employee was removed from INS employment October 1996. This action is currently under appeal with an arbitrator. This employee's signature was not identified in our review of the June 27, 1995, correspondence.
We are unaware of any actions that might be construed as reprisal of any kind against any of these employees. In fact, since June 1995, the [then] union president was selected for a transfer for which he applied, and at least four of those who signed the letter have been promoted.
If you have allegations of retaliation, we would appreciate your bringing the specifics to the attention of the IG.
Question 3. When did you first become aware of allegations by certain INS employees regarding the deceptions which were detailed in the June 27, 1995, correspondence? If you became aware of the allegations before Representative Gallegly made them public, were Mr. Gallegly and other members of the Task Focre promptly informed? Please have Deputy Commissioner Chris Sale and Executive Associate Commissioner William Slattery answer these same questions.
Answer. Deputy Commissioner Sale and I first became aware of the allegations when a facsimile from Congressman Gallegly's office and supporting documents was presented to me on July 12, 1995. (TAB C) Executive Associate Commissioner William Slattery was not in the office on July 12, 1995. He learned of the allegations on July 13, 1995. The facsimile included: a July 12, 1995, letter to Attorney General Janet Reno (AG) from Congressman Gallegly and the June 27, 1995, letter from the Local 1458 American Federation Government Employees (AFGE) outlining the allegations. We were astounded by the allegations. The INS' Office of Field Operations immediately asked the Miami District for a report on the allegations contained in the memo. Until that time, we were not aware of any of the allegations. There was no call to advise Congress since they first received the letter with the allegations, and were informed of them before we were.
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Question 4. When did you first become aware of the events which formed the basis of the allegations later made in the correspondence of June 27, 1995? For instance, when did you first become aware of the release or transfer of criminal aliens from the Krome Service Processing Center shortly before the Congressional Task Force on Immigration Reform's visit to that site? If you became aware of these events before Representative Gallegly made public the allegations he received, did you consider them unusual in any way? If you did consider them unusual, did you promptly inform Mr. Gallegly and other members of the Task Force? Please have Deputy Commissioner Chris Sale and Executive Associate Commissioner William Slattery also answer these questions.
Answer. When I found out about the allegations, I immediately asked for a report from the Office of Field Operations (HQOPS) for the facts which were requested from the Miami District Office. The Miami District Office responded with a memorandum dated July 13, 1995. (Appendix #2, Please refer to IG Report: Alleged Deception of Congress, June 1996:) the HQOPS' review of that letter raised some questions and the Miami District Office was asked to provide additional information on this subject on July 14, 1995. (Appendix #10. Please refer to IG Report: Alleged Deception of Congress, June 1996:) On July 17, 1995, the Miami District Office provided a second report. (Appendix #3. Please refer to IG Report: Alleged Deception of Congress, June 1996:) On July 14, 1995, the IG asked the AG to investigate these issues. When an issue becomes a matter of an Office of Inspector General (IG) investigation it is our practice to cease all review into the matter pending the IG's completion of work.
I first became aware of the facts as discovered by the IG one year later upon reading his report which was issued on June 14, 1996.
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As in the previous question, Deputy Commissioner Sale and Executive Associate Commissioner Slattery became aware of the issues under the very same circumstances.
Question 5. Did INS have a mechanism in place at the time of the events which formed the basis of the allegations later made in the correspondence of June 27, 1995, designed to inform you, Ms. Sale, Mr. Slattery, and other members of INS management of important events taking place at the Miami District (such as the release or transfer of criminal aliens or the staffing changes at Miami Airport)? If such a mechanism was in place, did it properly function and inform you, Ms. Sale, Mr. Slattery, and other members of INS management as to these events?
Answer. The INS Office of Field Operations relies on three Regional Offices to oversee routine operations of Districts and Sectors. Please see organizational chart. (TAB D) We use a quarterly budget and program priorities review process to assess agencywide (and Regional) performance against performance goals. This management structure is not intended to inform Headquarters of normal operational procedures such as alien transfers or staffing actions. We do expect field directors to inform us through channels of significant or unusual events or operations before, or as, they occur. Changes to shift assignments within established staffing levels and detention center population is not considered significant or unusual.
The events described in the allegations, and demonstrated to be factual by the IG investigation, represent activities which are neither sanctioned nor anticipated. The facts show that local management acted without Headquarters knowledge, and denied the facts when asked.
Question 6. In your testimony before the Subcommittee on Immigration and Claims last September 12, you stated that then Director of Congressional Relations Pam Barry was ''communicating agency policy'' when she instructed INS personnel at the Miami airport not to speak to members of the visiting Congressional Task Force on Immigration Reform about certain topics, including staffing levels at the airport. Are there any other instances in which it is (or has been during your time at INS) the policy of the INS that certain employees not communicate to members of Congress and/or their staffs either about specific issues or in general? What would such instances be?
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Answer. The Congressional Task Force on Immigration Reform was provided with briefing materials in its background book on the staffing levels and issues at the Miami Airport. We were fully prepared, and have always been prepared, to discuss staffing at the Miami airport with the Congress. I have met with the Southern Florida delegation on Miami staffing issues regularly, because it has been on ongoing source of concern. We have been open about this staffing issue. Airport staffing allocations are based on a national model that relies on comparative data among airports and airport traffic. The model is one that we administer at a Headquarters level, with contractor support, not at the local level. Local staff do not have the information nor experience in dealing with the national model in order to be significantly knowledgeable to discuss the model.
At the same time, we encouraged Members of Congress and our airport staff to mingle freely and converse at every point throughout the trip, which they enthusiastically did.
Question 7. What actions has INS taken to ensure that the policies enunciated in the following INS documents have actually been implemented in the field: (1) the Memorandum dated July 24, 1996, from the Office of the Commissioner regarding ''Information and Evidence Requested in Investigations,'' (2) the Memorandum dated July 26, 1996, from the Office of the Deputy Commissioner regarding ''Instructions for Medical Clearance of Aliens at Service Processing Centers and Contract Facilities,'' (3) the statement you made in the August 1996 issue of INS Communique reaffirming the INS' commitment to accuracy and thoroughness in responding to investigative organizations' requests for information and evidence, (4) the Memorandum dated August 8, 1996, from the Office of the Commissioner regarding ''Implementation of the Immigration and Naturalization Service Firearms Policy,'' (5) the Memorandum dated August 16, 1996 from the Office of Programs regarding ''Secondary Detention Procedures at Ports-of-Entry,'' (6) the Memorandum dated August 19, 1996, from the Office of Programs regarding ''Inspections Program Guidance on Uniform Leather Gear and Related Items,'' and (7) the Memorandum dated December 3, 1996, from the Office of Programs regarding ''Inspections Program Firearms Policy Issues and Procedures''?
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Answer. This question raises general issues of management oversight and accountability regarding INS' implementation of instructions. Following the issuance of the IG report on the Miami case. I reassigned the District Director, Deputy District Director, Regional Director, and Deputy Regional Director. I detailed into their positions senior INS field officials well known and respected for their past management performance and vigor. In addition, INS' Office of Field Operations assembled a team of INS officials from other offices around the country selected for their expertise in inspections, detention and deportation, labor-management and administrative operations. (Those areas where Miami's work had been shown to be deficient.) The team was headed by an INS Headquarter staff member who worked with the Acting District Director and Acting Deputy District Director to address and correct the management problems the District was experiencing. Their three reports provide a record of compliance and implementation. These strong unprecedented actions have sent a clear message of accountability to field managers.
In September, I announced the full-scale implementation of INSpect (INS Program for Excellence and Comprehensive Tracking). (TAB E) In fact, the IG's findings reinforced my existing concern that our oversight of field operations lacked sufficient checks and balances and needed to be strengthened.
Briefly, the INSpect Program will provide consistent reviews of field offices on a 2 or 3-year cycle, depending on the size of the office. Reviewing compliance with policies, including those of the kind listed in the Chairman's February 18 letter, will be an integral part of the process. Self-assessment guides are under development to enable local management to review itself in between INSpect team reviews.
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(1) The Memorandum dated July 24, 1996, from the Office of the Commissioner regarding ''Information and Evidence Requested in Investigations,'' and
(2) The statement you [Commissioner Meissner] made in the August 1996 issue of INS Communique reaffirming the INS' commitment to accuracy and thoroughness in responding to investigative organizations' requests for information and evidence.
One of the first actions I took on receipt of the IG's report was the issuance of the July 24, 1996, memorandum, Subject: ''Information and Evidence Requested in Investigations.'' (TAB F) I directed that memorandum to the Service's top managers, and directed that the substance of the message be communicated through the chain-of-command to every INS employee. I reinforced the message through its inclusion in the Communique, our publication with the widest distribution to INS employees, and again in my opening statement to field managers during our annual conference. (TAB G)
The Office of Internal Audit--the INS element that deals with the Office of the Inspector General on a daily basis and represents the interface between our two organizations--has been watchful for indications of anything less than full compliance with my policy. The Office of Internal Audit has reported no improprieties in this area.
Late last year, Headquarters and two of our field elements were called on to respond to broad, exhaustive requests for the production of documents needed in connection with an Office of the Inspector General investigation. The Office of Internal Audit, which managed the Services response efforts, has received nothing but positive feedback from the Office of the Inspector General.
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Although I am confident that my message has gotten out, we will reinforce it whenever necessary, and will remain vigilant.
(3) The Memorandum dated July 26, 1996, from the Office of the Deputy Commissioner regarding ''Instructions for Medical Clearance of Aliens at Service Processing Centers and Contract Facilities''.
In response to the OIG's findings, in July 1996, the INS Health Services Division of the U.S. Public Health Service telephonically surveyed the Health Service Administrators of the medical facilities of all the Service Processing Centers (SPC) to determine if the Form I—834 Medical/Psychiatric Alert requirement was being honored by INS personnel. Form I—834 is used by health providers to notify INS that an alien who is detained at a SPC or contract facility has been found to present a psychiatric or medical problem that either requires that he be cleared medically before being released, or that he requires a medical escort. Before any alien is released from INS custody, his records must be reviewed to ensure that if the Medical/Psychiatric Alert has been filed, the alien is medically cleared before release. The survey indicated that the Service's field elements were complying with this requirement.
However, because of the threat posed to the public by infectious diseases, a memorandum restating the requirements and reminding all supervisors and officers to comply was distributed on July 26, 1996. The memorandum known as ''Instruction for Medical Clearances of Aliens at Service Processing Centers and Contract Facilities'' was sent to all three INS Regional Directors and all state-side District Directors, who have responsibility for the INS SPCs and contract facilities. (TAB H)
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(4) The Memorandum dated August 8, 1996, from the Office of the Commissioner regarding ''Implementation of the Immigration and Naturalization Service Firearms Policy''.
In response to my memorandum dated August 8, 1996, the INS National Firearms Unit shipped copies of the Firearms Policy to all INS offices including Headquarters, Regional Offices, Districts, Sectors, and the Service Academies. (TAB I) Copies were delivered to each of these offices on September 6, 1996, for distribution to all INS officers authorized to carry a firearm. Each officer was to be given the opportunity to read the policy, ask questions pertaining to the policy, and receive answers in order to ensure his or her understanding of the roles and responsibilities under this policy. Each officer was required to sign a statement signifying possession of a copy of the policy, and his or her personal obligation to comply with the policy.
The majority of the requirements in the policy were implemented immediately upon issuance. Certain new requirements in the policy which involved significant changes or further action are being implemented as quickly as possible.
In order to ensure compliance with the policy, the INS Office of Internal Audit has revised their Field Assessment Guides to reflect the new policy. These guides are currently being used in field audits of INS offices. One of the items to be audited are the statements signed by the officers regarding compliance.
In order to effectively implement the Firearms Policy, the INS Training Division is taking the following actions:
To fulfill the policy requirement that INS officers who carry firearms must complete and qualify under a Service-approved firearms training program, the Training Division is developing a training program to address this issue. The course is specifically for those Immigration Officers who have not completed one of the training academies listed in the Firearms Policy or ''substantially equivalent'' training and require immigration law enforcement
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training. This special course will be completed by the end of Fiscal Year 97 (FY). Further, the Training Division has a 2 1/2-week exportable firearms/physical technique training course for Immigration Officers who have been to basic immigration law enforcement training, but never received firearms training. This course is currently being delivered to field personnel as requested.
To implement Quarterly Training Day sessions, the Training Division is currently working with INS program officials, field personnel, and the Firearms Review Board to determine the specific training needs. When these training needs are identified, the Training Division will develop lesson plans and training materials for use in the field. Further, to address specific officer deficiencies, remedial firearms training is presently an integral element of all INS basic training curricula. The lesson plans and training materials presently used in basic training are being adapted for use by the field. This course development effort will be completed by the end of FY 97.
The night-fire training policy requirements are also being addressed. The basic training curricula includes a night-fire component. Work is underway to adapt the basic lesson plans and training materials for field delivery, and will be completed by the end of FY 97.
Finally, both the Border Patrol Academy and the Immigration Officer Academy currently provides Federal Aviation Administration approved training for officers carrying firearms on board commercial aircraft. This training is part of the existing basic training curricula.
(5) The Memorandum dated August 16, 1996, from the Office of Programs regarding ''Secondary Detention Procedures at Ports-of-Entry''.
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The August 16, 1996, signed policy statement, along with supporting documents, was sent to each of the three Regions by Federal Express with instructions that it be copied and disbursed to all District Offices and Ports-of-Entry (POEs). (TAB J) All POEs requiring further information concerning implementation of the policy were instructed in the document to contact the Office of Inspections. To date, no inquiries from the field concerning problems arising from the implementation of this policy have been received. The policy addressed the following issues:
Who may be detained at Ports-of-Entry (POEs), and for how long;
What is the short-term detention priority for specific types of aliens;
Who may not be detained in short-term hold rooms;
What are the correct search and transfer procedures;
Basic overall procedures covering detention logs, food and water, and audio/visual supervision/monitoring of detained aliens;
Fire, building evacuations, and medical emergencies;
Control of aliens in secondary inspection when no hold room exists at the POE; and,
Guidelines for the use of restraints within a segregated area within a POE.
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The Miami District has reported that the policy memorandum was received and was reviewed by all stakeholders, including the Union. The Miami District Officials have also reported that the District is in compliance with all instructions. No local inquiries regarding the policy have been received by District Office, which has periodically checked with the POE to ensure compliance.
(6) The Memorandum dated August 19, 1996, from the Office of Programs regarding ''Inspections Program Guidance on Uniform Leather Gear and Related Items''
In addition to addressing secondary inspection detention policy, I tasked the Office of Inspections with formulating a written policy concerning the appropriate wearing of leather gear and related items. On August 19, 1996, the signed policy statement was issued. (TAB K) The policy addressed the following issues:
Which immigration inspectors may wear gun belts, holsters, and related items at POEs;
Under what circumstances may hosters be worn; and,
What is the correct manner for wearing handcuffs.
As in the case of the detention policy, this memorandum referred the reader to the Office of Inspections should any questions concerning implementation arise. Only one easily resolved inquiry from the field has been received. District officials in Miami reported that this policy was also received, reviewed by stakeholders, and implemented as directed. The Miami District Office has also reported that the policy is being followed. Periodic follow-up by District officials, has ensured compliance to date.
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(7) The Memorandum dated December 3, 1996, from the Office of Programs regarding ''Inspections Program Firearms Policy Issues and Procedures''
On December 3, 1996, the signed policy was issued by the Executive Associate Commissioner for Programs. (TAB L) It was faxed to the three Regions with the request that it be duplicated and disbursed to all Districts and POEs. This policy addressed the following issues:
Who in the Inspections Program is required to carry a firearm;
Who is prohibited from carrying a firearm and what exceptions exist to this prohibition;
Physical security of firearms;
District documentation of local firearms policy/issues; and,
Firearms training requirements.
This policy document has generated multiple inquiries from the field as well as from the National Immigration and Naturalization Service Council. The Offices of Inspections and Field Operations are working with the field and appropriate offices to address the issues and concerns raised by the field. The Miami District Office has also reported that, after receipt and review by all stakeholders, many local questions have been asked. All efforts are being made to ensure compliance with the memorandum as written, but that total compliance is pending the results of the continuing work of the Offices of Inspections and Field Operations. The Eastern Regional Office is assisting Headquarters offices in addressing issues raised.
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I hope the materials provided will be of assistance. Please feel free to contact me should you need additional information.
Sincerely,
Doris Meissner,
Commissioner.
Enclosures.
Tab A
Memorandum for the Attorney General
Through: The Deputy Attorney General.
From: The Commissioner, Immigration and Naturalization Service.
Subject: OIG executive summary.
Purpose: To transmit the INS' plan in response to the OIG's report ''Alleged Deception of Congress''.
Timetable: N/A.
Discussion: I have reviewed the named report and am committed to taking quick and decisive action to address the numerous individual and systemic issues raised. To that end, the attached Plan summarizes actions we have and will take. I have tasked the Office of Internal Audit in INS to take the lead in monitoring and tracking all the actions listed and to prepare periodic reports as actions are taken.
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Memorandum for Deputy Attorney General
From: Doris Meissner, Commissioner.
Subject: IG Report ''Alleged Deception of Congress.''
I have just reviewed the above-captioned report and am very concerned by the issues it raises, both individual and systemic. I take the report extremely seriously and believe that we must act timely to take corrective actions in a manner that ensures consistency, uniformity, equity and fairness.
As you are aware, if we exercised normal disciplinary procedures, we would have a bifurcated process because some of the concerned employees are senior executives and within the purview of the Department of Justice. Within INS there would be more than one tier of proposing officials. Thus, these procedures would run the risk of inconsistent analysis and decisionmaking on the appropriate discipline in individual instances. Furthermore, since I was a participant in the Congressional visit which precipitated the issues in the report, there should be no opportunity for anyone to call into question the independent judgment of a proposing official.
In light of these considerations, I request that you appoint an appropriate proposing and deciding official in the Department of Justice to make disciplinary decisions on all the individuals involved. I will make an INS team available to ensure that the officials you name have full benefit of my personal views as well as all information necessary from INS to assist in their deliberations and decisionmaking.
In the interim, I am detailing four key senior field managers to non-supervisory duties. I am also taking immediate action to address the systemic issues in the report by establishing a management review that will include a team of technical experts assigned to the Miami District. The first report from that review will be made in 30 days.
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INS Plan in Response to IG Report ''Alleged Deception of Congress''
1. Recommendation: Various recommendations to discipline 13 INS employees.
INS Action: Request DoJ appoint proposing and deciding officials to conduct the disciplinary process for named individuals. Memorandum: Doris Meissner to Deputy Attorney General, June 20, 1996.
INS will assign staff support to the Department of Justice officials.
2. Recommendation: Take steps to affirm INS' commitment to accuracy and thoroughness in reporting information, responding to allegations and providing discovery materials.
INS Action: Personal message from the Commissioner will be sent to all offices by July 1, 1996.
Followup at field-based meetings: August through October.
Review content of INS basic and management training materials to emphasize these issues. Report and necessary action. July 26, 1996.
3. Recommendation: Eastern Region and Miami District management needs special attention.
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INS Action: Senior employees in ERO and Miami District have been detailed to nonsupervisory positions pending review of disciplinary process, effective June 20, 1996.
A management review team has been established to address systemic issues described at the Miami District. The team will include inspections, detention, administrative and labor management expertise. Team arrives in Miami June 24. First report due to Commissioner: July 26, 1996.
Steve: Issues re who is proposing.
(1) When this comes down, may have INS employees point fingers at us.
Would have to start again.
245 isn't close. HQ knew? ''I don't remember.''
(2) 3 SES employees--theirs anyway.
In MSPB if all related want equity and one person proposing.
(3) If integrated.
(4) ''Official witnesses.''
The INS' Office of Internal Audit will monitor the work of the management review team and followup on corrective actions. The lessons learned will be included as items for review by the Office of Internal Audit during assessments of all INS field offices.
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4. Recommendation: Labor Management relations within INS need improvement.
INS Action: INS has been actively pursuing a labor management partnership with both unions since 1994. Training has been provided to management and union representatives at the national, regional and local offices. The INS will reaffirm those concepts and provide additional training, in Miami on labor management relations. By August 30, 1996.
5. Recommendation: Written policies should be formulated for the handling of aliens in hard secondary at airport.
INS Action: Office of Programs will issue such policy in 60 days: August 30, 1996.
6. Recommendation: The INS should re-examine its policies relating to the release of aliens to determine whether changes need to be made to ensure medical and criminal clearance procedures are clear and employees trained.
INS Action: The Office of Programs will review policies and propose further action needed by July 26, 1996.
7. Recommendation: INS should review instructions on circumstances when inspectors should carry weapons and be sure the instructions are clear in the field.
INS Action: The office of Programs will conduct a review and propose necessary action by July 26, 1996. This will include guidance on holstering and handcuffs.
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U.S. Department of Justice,
Immigration and Naturalization Service,
Washington, DC, June 20, 1996.
Memorandum for the Attorney General
Through: The Deputy Attorney General.
From: The Commissioner, Immigration and Naturalization Service.
Subject: OIG Executive Summary.
Purpose: To transmit the INS' plan in response to the OIG's report ''Alleged Deception of Congress.''
Timetable: N/A.
Discussion: I have reviewed the named report and am committed to taking quick and decisive action to address the numerous individual and systemic issues raised. To that end, the attached Plan summarizes actions we have and will take. I have tasked the Office of Internal Audit in INS to take the lead in monitoring and tracking all the actions listed and to prepare periodic reports as actions are taken.
Tab C
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U.S. House of Representatives,
Task Force on Immigration Reform,
Washington, DC, July 12, 1995.
Hon. JANET RENO,
Attorney General of the United States,
Department of Justice, Washington, DC.
DEAR MADAME ATTORNEY GENERAL: As you may know, members of the Congressional Task Force on Immigration Reform travelled to Miami last month for a series of briefings and tours aimed at achieving a better understanding of illegal immigration and INS operations in an area that has been severely impacted by this crisis.
While we were most satisfied with the visit at the time, and the hospitality of INS personnel--including Commissioner Doris Meissner--events since our return have forced us to question the validity of the information we were presented and the conduct of INS officials upon whom we relied for the truth.
Shortly after our return, we received a four-page memo signed by roughly 50 Miami-area INS employees. The memorandum accuses senior INS management officials of ''purposely and actively'' deceiving our delegation as to the nature and scope of the illegal immigration crisis in Miami and INS operations there.
The employees specifically allege that staffing levels at Miami International Airport were nearly doubled during our visit, that holding cells were cleared prior to our inspection and that INS inspectors were ordered to remove their weapons belts and handcuffs to present a ''kinder, gentler'' image to Task Force members.
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Perhaps the most serious allegations pertain to the delegation's visit to the Krome Service Processing Center. The employees accuse the INS of, in effect, clearing out the facility prior to our arrival by busing some inmates out of the area for the duration of our visit and paroling a large number of potentially dangerous illegal immigrants directly into the community. If true, this conduct would seem to indicate a willingness on the part of senior INS officials to put public health and safety at risk in order to make a positive impression on a Congressional delegation.
The employees also accuse INS management of boosting staffing levels at Krome during our visit, while we were led to believe that we were viewing the facility on an entirely typical day.
Needless to say, we are extremely troubled by these allegations. We would like to formally request that your office conduct a full and a thorough investigation of this matter in an effort to determine whether--and to what extent--the Congressional Task Force on Immigration Reform was misled and deceived during its recent visit to Miami.
When a Congressional delegation conducts a fact-finding mission at taxpayer expenses, it is imperative that they be presented with the ''facts'' and not an incomplete version of the truth that has been twisted to serve some particular end. We came to Miami in search of the truth. After reading the attached memo, we are increasingly skeptical that we were able to find it.
Sincerely,
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Elton Gallegly
Karen Thurman
Ken Calvert
Andrea Seastrand
Gary Condit
Carlos Moorhead
Mark Foley
Members of Congress.
National Immigration and Naturalization Service Council,
American Federation of Government Employees,
June 27, 1995.
Hon. ELTON GALLEGLY,
Chairman, Task force on Immigration Reform,
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Rayburn Building, Washington, DC.
DEAR CONGRESSMAN GALLEGLY: Enclosed is an open letter to you and members of your Committee from the employees of the U.S. Immigration & Naturalization Service--Miami district. Many of us were hoping to talk with you or your associates during your recent visit to Miami, but unfortunately, we were prevented from doing so by I.N.S. management. We hope the enclosed information gives a more accurate picture of the Immigration Service in Miami.
If you have any questions, please contact any of the below listed union executive committee members.
Thank you for your time and attention,
Michael Wixted,
President.
Don Tarasevich,
1st Vice-President.
George, Nadeau,
2nd Vice-President.
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Michael Boze,
Treasurer.
To: Elton Gallegy, Chairman of The Task Force on Immigration Reform, The Members of The Task Force on Immigration Reform, and The Honorable Speaker of the House of Representatives, Newt Gingrich.
From: The Employees of the Immigration and Naturalization Service, District of Miami.
On the 10th of June 1995, we the various employees of the Miami district of INS, had the honor of hosting yourself and six other members of the Task Force on Immigration Reform at both Miami International Airport and the Krome Service Processing Center.
We the undersigned employees of Miami District both value and appreciate the concern and interest your Task Force is taking in approaching the daunting problem of illegal immigration. We feel that your visit could have been an important step in truly recognizing some of the numerous problems we encounter every day. Unfortunately, we feel that Senior INS management officials participated in an active deception as to the true working conditions and the size of the problems we face as a nation with illegal immigration.
In your release of June 10th, 1995, you are quoted as stating ''When you think about immigration in general, and particularly illegal immigration, you think about the California Border and South Florida. I really wanted the members of the Task Force to see this enforcement effort for themselves. The problems we see here in Miami are real problems that we're going to have to deal with.''
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We the employees of the Miami District of INS wholeheartedly agree with your conclusion. However, we feel that purpose could have been better served if Senior INS Management had not purposefully and actively deceived the delegation as to the extent of these problems. There were some verifiable actions that they took to make these problems 'go away' temporarily while you were here.
The first deception committed by INS management was in the level of staffing that they ordered for the 10th of June. On any normal Saturday, it can be expected that 12 inspectors will submit overtime bills for Act 31 overtime. On Saturday, the 10th there were 23 inspectors who turned in bills for Act 31 overtime. This is about twice the normal amount that can be expected for normal operations on a Saturday. INS management also called inspectors at their homes for them to come in early in order to more fully staff the airport inspections facility. This wasteful used of overtime was also apparently authorized despite the fact that we as a District have used a almost all of our budgeted overtime funds for the fiscal year.
Secondly, in order to present an appearance of calm and order in our Hard Secondary (the area where malafide aliens are interviewed and cases are completed), all of the aliens who had been detained in our cells were taken out and told to sit in the front lobby of secondary. The only exceptions to this were the two criminal aliens who were left in the cells. Normal operating procedures are to leave undocumented aliens and those who presented fraudulent documents in the detention cells until there are inspectors to work their cases. Once the files are completed, the aliens are again placed in the detention cells until they are either transported to Krome SPC or released into the general public. This often causes a situation where there are more than 10 aliens in each of the cells, creating a hazard to the health of the aliens and presenting a dangerous situation for the inspectors who have to retrieve one or more aliens from these crowded conditions. The fact that this was done solely on the day of your visit to our facilities shows that INS management had no intention of showing the true working conditions we deal with every day.
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Thirdly, on Saturday, June the 10th, each inspector was ordered to remove their weapon belts, handcuffs, and holsters while reporting for duty. This was done apparently to present a kinder, gentler image of the Primary immigration inspectors. Normally, we are allowed to wear this gear for the performance of our duties. Indeed, there have been many incidents in the recent past where inspectors were required to deal with physical assaults and threats to their personal safety. Every day, we at Miami International Airport are dealing with passengers from all over Central America, South America, and the Caribbean. Many of these countries are the homes to dangerous drug felons, persons hoping to return from actual deportations, and desperately poor people looking to find a better life in ''El Norte.'' We have also been recognized in the recent past for identifying and detaining an international terrorist who was involved with several bombing incidents around the world.
Finally, we the INS employees of Miami International Airport feel that we were not fully informed of the pending arrival of your delegation until the day of the event. Our Union leaders were purposefully prevented from representing the interest of the Bargaining Unit, with the District Director, Walter D. Cadman, threatening to arrest the Local Union President for trespassing. The kind of action on behalf of the management of this District shows that they did not want the employees to have a voice in the presentation to the delegation. The question we ask is--Who better can give the Delegation the information you are seeking than the troops in the front lines?
Also on the 10th June, 1995, your delegation visited the Krome Service Processing Center of the Miami District. Krome serves as the sole detention facility for immigration related matters in South Florida. As a facility in general, it is understaffed and usually way over capacity in the number of aliens they detain. Unfortunately, we feel that in what you were presented with on the 10th, you were again purposefully deceived by INS management.
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First, on the two days of June 9th and 10th, there were 83 detainees who were temporarily sent to other INS detention facilities and local jails. There were 54 detainees who were paroled into the local community. There were 12 who were deported or left voluntarily for their home countries. Thus over a two day period, immediately preceding your arrival to view the facility and its operation, there were 149 illegal aliens who were moved from the facility. Over one third of these where paroled into the community despite their use of fraudulent documents or arrival without documentation to the United States. Some of the 83 aliens who were 'transferred' were in actuality bussed to Key West or Tampa, given lunch, and sent back to Krome SPC. All of this at great cost to the American taxpayer. This was done on a budget that is already strained and done only to present an image to yourselves that the Miami District is well-managed and under control.
At the same time that management was releasing aliens from Krome, they brought in additional Detention Enforcement Officers from Orlando and Tampa. This was done to apparently give the impression that the facility at Krome is fully staffed, while in actuality, the Officers working in that facility are on mandatory twelve hour shifts. The Officers working at Krome are routinely placed in harm's way due to chronic shortages in manpower and the massive influx of illegal aliens into the United States through the Port of Miami and Miami International Airport.
Aliens are routinely paroled out of Krome before they have seen an Immigration Judge. A figure recently quoted as the average length of stay at Krome for malafide Haitian immigrants is ten days. That means that malafide aliens with an unknown criminal history and unknown medical history are being released into the community. This is true not only of malafide Haitian immigrants, but also of Cubans who arrive without any documents and malafide Chinese immigrants. In truth, it can be said that we do not know the identity of these immigrants. How can we verify the identity and true intent of people who present themselves without documents, and then refuse to give any information on how they came to the United States? In the recent past, before immigration became such a politically charged issue, malafide immigrants from all three of the above named nations were processed and released at Miami International Airport, usually on the same day that they arrived. This was done with the full knowledge and authorization of the Senior Management of the District of Miami. The only condition that was necessary to authorize the release of these aliens was a ''good'' address.
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While you were visiting Miami District, one of your delegation members asked INS management how many malafide aliens are processed at Miami International Airport. At that time, none of the Senior INS managers could answer that question. We the employees of Miami International Airport can provide a partial answer to that question. In the months of January and February of 1995, there were over 660 exclusion cases processed at Concourse ''E''. In the same period of time, there were over 400 voluntary withdrawals allowed. There were also about 30 Visa Waiver Pilot Program refusals. This brings a total of just over 1,090 cases in just over two months. These statistics do not include other actions required by inspectors such as deferred inspections, processing legal immigrants, processing legal refugees and asylees, and administering fines and fees. These numbers also do not include the statistics for Concourse ''B'' or the Port of Miami.
The research for the above numbers took one inspector less than 30 minutes of research. Since the management personnel knew of the coming of your delegation and the reasons for it well in advance, it does not seem outrageous to expect them to do a little research in advance. There is of course the possibility that this research was done prior to your arrival and was not given in response to your questions. In either case, it shows a total lack of either ethics or the proper knowledge of what their job is about.
In conclusion, we would like to state that we appreciate the efforts and goals of the Task Force on Immigration reform, and we sincerely hope that your hard work will result in positive changes in our nation's failing immigration policies. We feel that your contributions towards this end are extremely valuable. We also feel that the Congress of the United States of America has the need, even the right, to open honest answers to questions it poses to any federal employee. It is our, and every other federal employees', obligation to strive to provide accurate, truthful responses to your questions and inspections. We feel that you were not given the open, honest information you need to further serve the People of the United States of America on your first visit to the District of Miami. We would like to offer an open, permanent invitation for the members of your Task Force or any other members of Congress to visit our workplace. However, if you take us up on this offer, please come unannounced to our management officials, since they apparently have different agendas than the enforcement of the Sovereign Laws of the United States of America. If you feel you need any more information to conclude the findings of your Task Force, please feel free to contact the leadership of A.F.G.E. Local #1458.
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Thank you for your valuable time and consideration.
The INS Employees, District of Miami.
Tab D
Insert offset folio 138 here
Tab E
U.S. Department of Justice, Immigration and Naturalization Service--Fact Sheet
INSpect
INS PROGRAM FOR EXCELLENCE AND COMPREHENSIVE TRACKING
Beginning immediately, the U.S. Immigration and Naturalization Service (INS) will implement an internal review process designed to ensure quality, accountability and professionalism at all INS field offices. The program is called INSpect--INS Program for Excellence and Comprehensive Tracking. INSpect is a $3.5 million program for FY 1997, subject to Congressional approval. It will add up to 20 staffers to the INS Office of Internal Audit (OIA) and form an initial cadre of 200, and eventually as many as 500, INS experts to conduct field evaluations.
INSpect Background
Under development since June 1995, INSpect reestablishes and expands the field inspections activity which initially had been transferred to the Department of Justice Office of Inspector General (OIG) in 1989. Those INS field inspection activities were ended by the OIG in 1992. INS program managers incorporated the inspection function into their programs, but inconsistencies and the lack of high-level oversight prompted the INS OIA to request re-establishment of an independent assessment of field operations. INS Commissioner Doris Meissner approved the project on June 9, 1995.
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INSpect Objectives
The INSpect Program incorporates the objectives of the original field inspection program, which were to assess managerial effectiveness and determine compliance with applicable laws, regulations and procedures. INSpect expands the scope with several new objectives. The overall program objectives now also include:
Measurement of field performance against established standards.
Assessment of the efficiency and effectiveness of field operations.
Sharing local successes and solutions applicable to Servicewide problems.
Establishing a follow-up program to track improvement and ensure corrective action.
INSpect Concept
INSpect is a comprehensive, top-to-bottom review process designed to provide information to INS managers at all levels. INSpect focuses on those areas which:
Are highly vulnerable to fraud, waste, abuse or mismanagement.
Require compliance with rules, regulations and procedures.
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Are high priority and/or interest items for INS.
The INS Office of Internal Audit (OIA) manages INSpect and leads the field reviews. Experts from the field and INS Headquarters serve on INSpect teams. These experts are selected by INS program managers and represent, in the words of Commissioner Meissner, ''the best and the brightest ... an elite corps of people who are genuinely interested in improving the Service.''
INSpect Development
To ensure consistency in the reviews, field evaluation guidelines were developed for use by members of the INSpect teams during field office reviews. More than 85 INS employees from across the country participated in a series of OIA workshops to develop the guides. In addition, self-assessment guides have been developed that field managers can use to measure and strengthen program performance. Both the guides and the process for conducting INSpect reviews were tested during the last half of FY 1996 by conducting five reviews of INS field offices.
INSpect Implementation
More than 80 INS field offices will be reviewed on two and three year review cycles, depending on size and vulnerability factors. Each review will take one to two weeks, and larger offices may take slightly longer. Offices which are considered high risk will be inspected more frequently.
Inspection schedules will be published six months in advance. There will be no ''surprise'' inspections, in keeping with INSpect's concept as a positive, supportive and creative method of solving operational and managerial problems.
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During the INSpect review field offices will receive a daily briefing on the findings of the INSpect team, as well as an exit briefing at which all findings and recommendations of the team will be discussed. The INSpect team also prepares a written report to give senior managers concise, candid evaluations of policy and program effectiveness and to identify conditions or situations which require attention or intervention.
INSpect Analysis and Evaluation
OIA will form an INSpect analysis and evaluation unit to extract the lessons learned and best practices from each final INSpect report. This information will be shared with all INS field managers for their use in the day-to-day management of their field offices.
Tab F
Memorandum
Subject: Information and evidence requested in investigations.
Date: July 24, 1996.
To: Management team, regional directors, district directors (foreign & domestic), chief patrol agents, service center directors, administrative center directors, Asylum Office directors.
From: Office of the Commissioner.
In a June 21 memorandum, I informed you of the outcome of the Department of Justice, Office of the Inspector General (OIG), investigation of allegations relating to a Congressional delegation's visit to Miami in June 1995. Included in the Executive Summary of the investigative report which accompanied my memorandum was a recommendation addressing cooperation in investigations.
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My main purpose here is to reaffirm and draw your attention to the Service's absolute commitment to accuracy and thoroughness in responding to investigative organizations' requests for information and evidence. The timely, proper resolution of allegations of misconduct on the part of Service employees is critically important, not only to Service employees and management, but to the public they serve. Each of us is responsible for ensuring that requests for information and evidence in the course of investigations of misconduct be satisfied promptly, accurately, and completely. Anything less--and particularly any purposeful interference with, obstruction of, or dishonesty in misconduct investigations--must not and will not be tolerated.
From time-to-time, as in the Miami case, we receive from investigative organizations requests that we search for and provide any and all information in Immigration and Naturalization Service records pertaining to particular, sometimes broadly defined, matters. All of us who are involved in conducting and providing the results of such searches must ensure that we act thoughtfully and with total thoroughness and candor. Attached is a list of locations in which responsive records may be found; you should consider it a starting point when dealing with such requests.
I want the substance of this message communicated through the chain of command to every INS employee. I have chosen that method over direct correspondence to each employee in order that you and your subordinate managers, in relaying the message, will have the opportunity to stress its importance and provide any appropriate, additional instructions.
Doris Meissner,
Commissioner.
Attachment.
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EXAMPLES OF LOCATIONS WHICH, DEPENDING ON THE NATURE AND SCOPE OF THE PARTICULAR INVESTIGATIVE ORGANIZATION REQUEST, MAY HAVE TO BE SEARCHED FOR RESPONSIVE IMMIGRATION AND NATURALIZATION SERVICE RECORDS
Alien files.
Central Index System.
All official office files, including correspondence files, and reports.
Individuals' appointment calendars.
Working files maintained by individuals.
Electronic mail (''cc:Mail'') files, including archive files.
Individuals' notes of meetings, telephone calls, and the like.
Computer diskettes (''Floppy discs'') maintained at individual work stations.
Computer ''hard disc drives'' on individual work stations and network servers.
Computer backup files.
Records of telephone messages.
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Time and attendance records, including overtime records.
Facsimile machine logs.
Vehicle logs.
Records of individuals' official travel.
Individual and Government charge card (American Express) records.
Government cellular telephone records.
Imprest fund and morale and welfare fund records.
Weapon issuance and maintenance records.
Ammunition issuance records.
Contracting files.
Note: This listing should not be construed as direction that files be created and/or maintained if such are not otherwise done in the normal course of business. Neither should it be construed as direction to search each location in response to every request. Rather, the listing is provided solely to suggest possible locations of responsive records, some of which may not be immediately obvious.
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Tab G[From INS Communique, August 1996]
Inspector General Releases Report on Miami Investigation
Concluding a year-long investigation, the Department of Justice's Office of the Inspector General (IG) released a report June 20 alleging that INS officials ''created a false picture of working conditions'' during a congressional fact-finding mission to Miami International Airport and the Krome Service Processing Center on June 10, 1995.
After the report became available, Commissioner Meissner shared the information with the INS management team and took specific actions to begin addressing the IG's recommendations (see Commissioner's Message on page two).
The allegations that led to the investigation were first presented to the members of the congressional delegation in a letter signed by nearly 50 INS employees in Miami, who protested that their managers had ''intentionally misled members of the Task Force on Immigration Reform during the visit.''
Among the findings outlined in the report's executive summary, the investigation found credible evidence that:
Within 48 hours before the delegation's visit, approximately 149 (of a total of 407) detainees were moved out of the Krome Special Processing Facility and another 58 detainees, including some known criminals and some with no medical screening, were released into the community ''so that the Delegation would not see overcrowding at that facility'';
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Staffing was increased at the Miami International Airport on the day of the visit ''to create an altered appearance of efficiency at the Airport that did not normally exist'' and not, as managers contended, to provide sufficient escorts for the visiting task force;
At a meeting on June 8, district managers directed airport personnel to keep the detention cells in hard secondary ''clean''--a term that was understood to mean that they should be kept empty--and that, if asked, they should answer that only criminal aliens were held in these cells, even though other categories of inadmissible aliens were subject to incarceration, including children who are accompanying an adult in one of those categories;
At the same meeting, the managers instructed supervisors to prohibit inspectors from wearing their gear belts (which include holsters, handcuffs, and ammunition) on the day the task force visited the airport, and that this instruction ''was a departure from custom and practice at the airport and ... was unsupported by any written policy''; and
District managers never formally notified the union about the delegation's visit, that union officials were ''essentially excluded from the visit'' and even threatened with arrest if they attempted to join the delegation during a secure briefing.
The investigation found no evidence to substantiate allegations that detainees had been bused from Krome to Key West or that additional officers had been assigned to Krome on the day of the task force's visit to give an appearance of greater efficiency at the facility.
Besides recommending disciplinary action against 13 INS employees, the report concluded that steps should be taken to ''affirm INS' commitment to accuracy and thoroughness in reporting information, responding to allegations, and providing discovery materials; that the Eastern Region and Miami District management in particular need special attention; that labor/management relations within INS need to be improved; that written policies be formulated for the handling of 'hard secondary' confinement at the Miami airport; and that INS review instructions on circumstances regarding when inspectors should carry weapons, and be sure the instructions are clear in the field.''
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At the Commissioner's request, the Department of Justice is reviewing the report's recommendations to decide the nature and scope of any disciplinary actions to be taken. Within the Service, the Commissioner detailed four senior INS officials to nonsupervisory duties pending the outcome of the disciplinary proceedings, sent a management review team to the Miami district, and called on top managers nationwide to recommit to the highest standards of integrity in carrying out the Service's mission.
Tab H
[Memorandum of July 26, 1996]
Subject: Instructions for Medical Clearance of Aliens at Service Processing Centers and Contract Facilities.
To: Regional Directors, District Directors.
From: Office of the Deputy Commissioner, (HQDEP).
All Immigration and Naturalization Service (INS) officers and supervisors are reminded of the medical clearance requirement of form I—834 Medical/Psychiatric Alert. This form is used by health providers to notify INS that an alien has been examined and has been found to present a psychiatric or medical problem that either requires that he be cleared medically before being removed by INS or that he may require a medical escort.
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Before any alien who is detained at a SPC or contract facility is released from INS custody, whether through removal from the United States or release through bond, order of recognizance, or admission into the United States, his records must be reviewed to ensure that if the Medical/Psychiatric Alert has been filed the alien is medically cleared before release.
No violations of this requirement have been reported recently, but because of the possibility of serious impact on the public at-large from infectious disease this reminder is issued.
If you have any further questions concerning this matter, please contact Elizabeth Herskovitz of HQDDP at (202) 514—1970, or Dr. Eugene Migliaccio of U.S. Public Health Service at (202) 514—3339.
Chris Sale,
Deputy Commissioner.
Tab I
[Memorandum of Aug. 8, 1996]
Subject: Implementation of the Immigration and Naturalization Service Firearms Policy.
To: Headquarters Management Team; Firearms Review Board, Members/Alternates; Director of Training; chief, Border Patrol Academy; Chief, Immigration Officer Academy; Regional Directors; District Directors; Chief Patrol Agents; Officers in charge; Patrol Agents in Charge; and Port Directors.
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From: Office of the Commissioner.
Attached is the final version of the revised Immigration and Naturalization Service (INS) Firearms Policy, Section 20.012 of the Administrative Manual. This policy has been negotiated with both the National Immigration and Naturalization Council and the National Border Patrol Council, and incorporates all changes agreed upon by the Service and the Unions. Field input was included prior to negotiations with the Union.
This version of the INS Firearms Policy supersedes all previous policies regarding the Service's Firearms Program and shall be effective immediately.
The revised Firearms Policy provides needed standardization in the issuance, control, carrying, and use of firearms. It will ensure the continuance of disciplined and professional conduct by all immigration officers involved in the enforcement of the immigration laws. The revised Policy will also demonstrate the Service's commitment to promote and protect the human rights of all individuals and to ensure the immigration laws are enforced fairly and with compassion. All of us must rededicate ourselves to upholding the highest standards of conduct. I am fully committed to ensuring that allegations of abuse or misconduct are aggressively pursued and that, when proven malfeasance occurs on the part of any immigration employee, appropriate disciplinary action will be taken.
You are required to disseminate the INS Firearms Policy and a copy of this memorandum to all officer personnel as outlined in Subsection 8 of the policy. Within 30 days copies of the policy will be provided to your office by the National Firearms Unit for distribution to each employee.
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Doris Meissner,
Commissioner.
Attachment.
Immigration and Naturalization Service Firearms Policy
ADMINISTRATIVE MANUAL SECTION 20.012
NOTE: Nothing in this policy shall be construed in a manner that conflicts with any provisions of law, government-wide rules or regulations, or the provisions of the applicable Collective Bargaining Agreement, including those dealing with the obligation of the Service concerning physically disabled employers, including but not limited to, the Rehabilitation Act of 1973 and the Pregnancy Discrimination Act of 1978.
1. PURPOSE
Section 20.012 of the Administrative Manual provides policy and procedural information regarding all aspects of the Service's Firearms Program. Accordingly, this document performs the following functions:
A. Describes the authorities and responsibilities of Service officers in regard to the Service's Firearms Program;
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B. Provides guidance for the issuance, control, carrying and use of firearms by Service officers;
C. Provides guidelines for the use of deadly force, and the reporting and reviewing of incidents involving the discharge of firearms;
D. Provides procedures for the acquisition of firearms, ammunition, and related equipment;
E. Describes the Service's firearms training and qualification programs;
F. Describes the functions and responsibilities of the Firearms Review Board (FRB);
G. Describes the functions and responsibilities of the National Firearms Unit (NFU);
H. Describes the functions and responsibilities of the Shooting Incident Review Committee (SIRC);
I. Supersedes the November 1989 revision of the INS Firearms Policy in Section 4210 of the Administrative Manual.
2. AUTHORITY OF IMMIGRATION OFFICERS TO CARRY FIREARMS
A. The authority of certain Immigration Officers to carry firearms is derived from the Attorney General's statutory responsibility for the enforcement of the immigration laws. The Attorney General is empowered by Section 103 of the Immigration and Nationality Act to control and guard the boundaries of the United States against the illegal entry of aliens. This authority has been delegated to the Commissioner pursuant to 28 C.F.R. Section 105 and 8 C.F.R. Section 2.1.
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B. Section 287 of the Act empowers Immigration Officers to perform certain acts and duties, including the arrest of illegal aliens, and certain felons, without warrant and to execute any warrant or other process issued by any officer under any law regulating the admission, exclusion, of expulsion of aliens.
C. Section 287(a)(5) of the Act provides that, under regulations prescribed by the Attorney General, an officer of the Service may carry firearms. The General Arrest Authority regulations under Section 287(a)(5) list the categories of officers who may carry a firearm.
D. The 1980 Authorization Act, P.L. 96—132, under which the Service now operates, authorizes the expenditure of funds for the purchase of firearms and ammunition and attendance at firearms matches.
3. DEFINITIONS
A. Authorizing Officials.
The following managers are designated as Authorizing Officials:
(1) Commissioner;
(2) Deputy Commissioner;
(3) Director, Office of Internal Audit;
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(4) Executive Associate Commissioner for Field Operations;
(5) Executive Associate Commissioner for Programs;
(6) Associate Commissioners for Enforcement and Examination;
(7) Assistant Commissioners for Border Patrol, Detention and Deportation, Inspections, Intelligence, and Investigations:
(8) Regional Directors;
(9) District Directors;
(10) Chief Patrol Agents, including the Chief of the Border Patrol Academy;
(11) Chief of the Immigration Officer Academy (IOA).
B. IMMEDIATE SUBORDINATE OFFICIAL (OF AN AUTHORIZING OFFICIAL).
The Immediate Subordinate Official of an Authorizing Official is the highest level manager serving under the direct supervision of an Authorizing Official. At the District level it is normally the Deputy District Director and at the Sector level it is normally the Deputy Chief Patrol Agent.
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C. Basic Immigration Law Enforcement Training.
(1) Basic Immigration Law Enforcement Training means the successful completion of one of the following courses of training:
(a) Immigration Officer Academy after 1971;
(b) Border Patrol Basic Training Course after 1950;
(c) Immigration Detention Enforcement Officer Basic Training Course after 1977;
(d) Other than Permanent Full-time (OTP) Immigration Inspector Basic Training Course after 1991 in the case of individuals who are OTP inspectors.
D. INS Firearms Program--The INS Firearms Program means the INS program which encompasses all aspects of the Service's activities related to firearms, ammunition, and related equipment.
E. Basic Marksmanship Instruction and Practical Pistol Courses (BMI/PPC)--The terms ''Basic Marksmanship Instruction'' and Practical Pistol Course'' relate to the firearms training that is conducted as part of the Basic Immigration Law Enforcement Training provided by the Border Patrol Academy and Immigration Officer Academy or training substantially equivalent thereto as determined by the Commissioner with the approval of the Deputy Attorney General. Substantially equivalent training includes the Federal law enforcement basic firearms training programs provided at the Federal law Enforcement Training Center (FLETC) or other similar law enforcement programs which are approved by the Director of Training on a case-by-case basis. It includes training in the appropriate use of deadly force, marksmanship, firearms handling and operating techniques, immediate action drills, tactical use of firearms, and judgement firearms training. In order to successfully complete the Basic Marksmanship Instruction and Practical Pistol Courses, an officer must achieve a minimum score of 70% on the INS handgun qualification course. In addition, an officer must achieve a score of 100% in the judgement portion of the Judgement Pistol Shooting (JPS) course and minimum score of 70% on the marksmanship portion of that course.
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F. Semi-Automatic Pistol Transition Training (SATT) Course--The INS course developed to train INS Officers who have previously successfully completed the revolver-based Basic Marksmanship Instruction and Practical Pistol Courses in the different skills required with a semi-automatic pistol. Completion of the SATT course does not satisfy the Basic Marksmanship Instruction and Practical Pistol Courses training requirements.
G. Tactical Firearms Instruction (TFI)--Tactical Firearms Instruction means Academy and post-Academy training that includes basic firearms retention, the use of cover and concealment, proper reloading procedures, the use of firearms in searches, tactical maneuvering with a firearm, tactical live-fire drills, proper defensive positioning with the contract with a suspect, and the use of voice commands and physical actions to control situations.
H. Reportable Shooting Incident--A reportable shooting incident means any incident involving the discharge of a firearms which occurs as described in Subsection 3.H.(1)—(4). Such an incident must be reported in accordance with the instructions contained in Subsection 11. Reportable shooting incidents are defined as:
(1) Any incident which involves the discharge of a firearm by a Service employee either intentional or unintentional, which offers under the following circumstances:
(a) While on duty (except for intentional discharges which occurs during firearms training, practice, or qualification, and do not cause any injury to a person or animal, or damage to private, public, or government property); or,
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(b) While off duty, and causes any injury to any person, or any damage to either private, public, or government property in violation of any law or ordinance, or causes an investigation by any law enforcement agency; or
(c) At any time, regardless of the Service officer's duty status, and regardless of the location or outcome of the incident, when a Service-issued or approved firearm is, or reasonably appears to be, discharged in an unsafe or reckless manner due to impairment caused by the consumption of alcohol or another drug.
(2) Any incident which involves the discharge of a Service-issued or approved firearm by any person other than a Service employee, and causes any injury to any person, or any damage to any private, public, or government property in violation of any law or ordinance, or causes an investigation by any law enforcement agency.
(3) Any incident which involves the discharge of a firearm as an act of assault against any Service employee, and the assault is, or reasonably appears to be, related to his or her Service employment.
(4) Any incident which involves the discharge of a firearm by a law enforcement officer other than a Service officer when the discharge occurs during multi-agency operations involving INS officers.
4. RESPONSIBILITIES
A. Commissioner.
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The Commissioner of the INS has overall responsibility for all aspects of the Service Firearms Program.
B. Chairman, Firearms Review Board.
The Chairman of the Firearms Review Board (FRB) is responsible for overseeing all actions taken by the FRB, and shall ensure that the actions of the FRB are in compliance with laws, rules, and government-wide regulations and the INF Firearms Policy. Additional responsibilities include:
(1) The oversight of the overall development and implementation of the Service's Firearms Program, including training;
(2) The evaluation and assessment of the Service's firearms policy, identification of areas of concern, and initiation of implementation of changes in the policy;
(3) The review and analysis of all shooting incident reports for determining the need for changes in Service policy, training and equipment;
(4) Ensuring the timely dissemination of information related to the Firearms Program to all levels of the Service and appropriate outside entities.
C. Administrator, National Firearms Unit.
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(1) The Administrator of the National Firearms Unit (NFU) is responsible for the development and implementation of administrative and operational procedures related to the Firearms Program.
(2) Under the direction of the Firearms Review Board, the responsibilities of the Administrator of the National Firearms Unit include:
(a) Standardizing firearms, ammunition, and related equipment Service-wide;
(b) Correcting deficiencies and resolving issues and concerns within the INS Firearms Program;
(c) Assisting the field in reducing unnecessary officer-involved shootings;
(d) Conducting ongoing research, development and testing on firearms, ammunition, and related equipment; conducting market surveys; and acquiring all firearms and ammunition;
(e) Based upon that research, development and testing, determining which firearm(s) or related equipment are suitable for procurement and issuance to Service officers;
(f) Upgrading the list of approved personally-owned firearms which may be purchased and carried by officers on and off duty;
(g) Managing the Service's Asset Management Information System, Firearms Inventory Module (AMIS/FIM), including the oversight of all acquisition, transfer, and disposal of firearms;
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(h) Operating the Service's armories and overseeing all maintenance, repair and alteration of all Service-owned firearms, as well as any Service-approved firearms sent in by Service officers for inspection, maintenance, modification, and/or repair. Responsibilities shall include the training, skills development, equipping and technical oversight of armorers located at the NFU, Service Academies, and designated field locations;
(i) Determining Service-wide firearms, ammunition, and target inventory requirements and distributing firearms, ammunition, and targets to INS offices and the INS staff at the Service Academies;
(j) Receiving all seized excess firearms from INS offices, and determining disposition;
(k) Assisting the Firearms Review Board with the analysis of shooting incidents for the purpose of recommending changes regarding firearms-related equipment, policy, or training;
(l) Assisting the Shooting Incident Review Committee with the analysis of shooting incidents to determine compliance with the INS Firearms Policy, and identifying factors related to firearms-related equipment, policy, or training;
(m) Coordinating, with the Training Division, the development and implementation of all firearms training, including basic and advanced courses, field-level training courses, instructor development, tactical firearms training, and familiarization and qualification courses of fire;
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(n) Coordinating, with the Headquarters Facilities and Engineering Division and the Training Division, the development and implementation of the program to determine the Service's requirements for firearms training facilities. Activities shall include:
(i) Identifying individual field office firearms training requirements;
(ii) Coordinating the development and implementation of Service-wide standard specifications for indoor and outdoor firing ranges;
(iii) Coordinating the development of budgetary requirements necessary to obtain funding for the acquisition of real property and facilities to be used for firearms training by Service officers;
(iv) Where feasible, initiating Headquarter level contacts with other Federal agencies leading to the joint funding and development of interagency firearms training facilities to be jointly managed and used by Federal agency field offices located in the same geographical area;
(v) Overseeing the use of Service-owned, commercial, or other agency range facilities by INS field offices, including the management of risks related to Service liability for environmental and officer health hazards.
D. The Office of Internal Audit (OIA).
(1) The Office of Internal Audit is responsible for providing oversight and guidance to field offices to ensure that all of the Service's reportable shooting incidents are reported in accordance with Subsection 11 and investigated in accordance with Subsection 12 of this policy.
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(2) The OIA shall act as an objective administrative ''check and balance'' for the shooting incident reporting and investigative process as defined as in Subsections 11 and 12 of this policy.
(3) The OIA will receive and compile documentation relating to the local INS investigation of each reportable shooting incident and will disseminate the documentation to the Shooting Incident Review Committee.
(4) The OIA will ensure that the INS Executive Management Team and appropriate entities within the Department of Justice have been notified whenever a reportable shooting incident occurs.
E. Shooting Incident Review Committee (SIR).
(1) The SIRC functions as a subcommittee of the Firearms Review Board and will review shooting incident investigations to determined the following:
(a) The Authorizing Official's local INS investigation of the reportable shooting incident has been properly and competently conducted;
(b) The Authorizing Official's proposed final report of the local INS investigation of the reportable shooting incident is complete in every detail;
(c) The level of force used by individual INS officers who are involved in the incident was appropriate and consistent with the INS deadly force and non-deadly force policies;
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(d) The Authorizing Official's proposed disposition of the incident, including any corrective and/or disciplinary action, is appropriate and consistent with the circumstances of the incident, and is consistent with final dispositions resulting from similar incidents which have previously occurred within the Service.
(2) Upon completion of the review of the proposed final report and disposition, the SIRC shall provide the Authorizing Official with appropriate analyses, observations, and recommendations regarding the reporting, investigation, and disposition of the incident;
(3) The SIRC shall periodically review the reasonableness of the INS deadly force policies and standards and provide recommendations to the FRB as necessary.
F. Authorizing Officials.
(1) Authorizing Officials are responsible for all aspects of the Service's firearms program as it relates to offices and personnel under their supervision, and for ensuring compliance with the INS Firearms Policy by all officers within their jurisdiction.
(2) Authorizing Officials shall establish and maintain a single, coordinated Firearms Program within their jurisdiction. At Headquarters and each Regional and District Office, one program shall be assigned lead responsibility for the Firearms Program within that jurisdiction. The lead program shall designate one firearms instructor as the Senior Firearms Instructor.
(3) Authorizing Officials shall designate a Firearms Control Officer as described in Subsection 4.G. and an Ammunition Control Officer as described in Subsection 4.H.
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(4) The authority of an Authorizing Official will not be exercised by any person temporarily assigned to the position normally held by the Authorizing Official unless the authority is specifically conveyed in writing by the Authorizing Official or higher authority.
(5) Authorizing Officials shall be responsible for selecting a combination of journeyman and supervisory Border Patrol Agents or Special Agents from within their jurisdiction to conduct Service investigations of reportable shooting incidents involving Service employees. Authorizing Officials are also responsible for ensuring that these officers successfully complete specialized training developed and provide jointly by the NFU and the OIA prior to being assigned to conduct any such investigation(s).
NOTE: Concurrent with the implementation of this policy, the NFU and the OIA will develop courses and provide training in the investigation of shooting incidents to all selected Border Patrol Agents and Special Agents. Pending availability of such training, Authorizing Officials will conduct investigations in accordance with Subsection 12.
(6) Authorizing Officials are not personally exempt from any requirement within this policy and may not waive or alter any portion of the policy.
G. Firearms Control Officers (FCO).
(1) Firearms Control Officers (FCO) are individuals, designated in writing by the Authorizing Official, who are responsible for the physical and administrative control of firearms within the Authorizing Official's area of accountability. A copy of this designation shall be provided to the National Firearms Unit and appropriate property management officials. The FCO acts as an agent of the Authorizing Official and is the Accountable Officer for purposes of firearms within the jurisdiction of the Authorizing Official. At the discretion of the Authorizing Official, the FCO may also serve as the Ammunition Control Officer (ACO) as described in Subsection 4.H.(1) and (2).
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(2) Firearms Control Officers shall be responsible for:
(a) Overseeing the shipment, receipt, and issuance of firearms, and ensuring that the appropriate property transfer data is entered into the Asset Management Information System, Firearms Inventory Module (AMIS/FIM);
(b) Ensuring the entry of information pertaining to all firearms seized within the District or Sector into AMIS/FIM;
(c) Overseeing the entry of quarterly qualifications data into AMIS/FIM;
(d) Conducting periodic physical inventories of Service-issued or approval firearms and entering the data into AMIS/FIM.
H. Ammunition Control Officers (ACO).
(1) Ammunition Control Officers are individuals, designated in writing by the Authorizing Official, who are responsible for the physical and administrative control of ammunition within the Authorizing Official's area of accountability. A copy of this designation shall be provided to the National Firearms Unit and appropriate property management officials. The ACO acts as an agent of the Authorizing Official and is the Accountable Officer for purposes of ammunition within the Authorizing Official's jurisdiction. At the discretion of the Authorizing Official, the ACO may also serve as the Firearms Control Officer (FCO) as described in Subsection 4.G.(1) and (2).
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(2) Ammunition Control Officers shall be responsible for:
(a) Overseeing the receipt of ammunition, and posting notice of receipt of ammunition into the Asset Management Information System, Firearms Inventory Module (AMIS/FIM);
(b) Directing the issuance of ammunition, and oversight of the maintenance of up-to-date records of issuance of each type of ammunition for each program on the Ammunition Log Sheet, Form G—484;
(c) Overseeing the entry of data in AMIS/FIM of monthly ammunition usage by each program within each office in their area of accountability;
(d) Conducting periodic physical inventories of ammunition and entering the data into AMIS/FIM.
I. Firearms Instructors.
(1) Authorizing Officials shall designate INS officers to perform full-time or collateral duties as Firearms Instructors. Subsection 23.D(4)(a)—(f) outlines training for officers designated as Firearms Instructors
(2) Designation of Firearms Instructors shall be based on the following criteria:
(a) A working knowledge of firearms and firearms training;
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(b) An aptitude for providing instruction in firearms; and,
(c) A score of 85% or higher on the last two quarterly qualifications for all firearms that the individual is authorized to carry.
(3) Firearms Instructors are responsible for conducting firearms training, practice and qualification activities within their assigned area of jurisdiction.
(a) During firearms training, practice or qualification sessions, Firearms Instructors are responsible for taking all reasonable steps to ensure the safety and security of all involved Service personnel and property. They are also authorized to remove any person from the range who refuses to comply with safety instructions or otherwise poses a safety risk.
(b) Firearms Instructors shall have absolute authority to resolve disputes regarding the scoring of targets
(c) The Senior Firearms Instructor at each location is responsible for scheduling other Firearms Instructors and Range Safety Officers to assist with firearms training, practice or qualification sessions.
(d) The responsibilities of the Senior Firearms Instructor shall include acquisition of local range facilities, training and qualifications, and consolidation of orders for firearms, ammunition and related equipment.
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J. Range Safety Officers.
(1) Authorizing Officials shall designate INS officers to perform collateral duties as Range Safety Officers. Designation of these officers shall be based on the following criteria:
(1) A knowledge of firearms and firearms safety;
(2) An aptitude for maintaining firearms safety during training, practice and qualifications.
(2) Range Safety Officers are responsible for assisting Firearms Instructors during firearms training, practice or qualification sessions.
K. Individual Service Officers Authorized to Carry Firearms.
Individual Service officers authorized to carry firearms pursuant to this policy are responsible for being familiar with this policy and adhering to all relevant aspects thereof.
5. SERVICE OFFICERS AUTHORIZED TO CARRY FIREARMS
A. The following Immigration Officers who have successfully completed Basic Immigration Law Enforcement Training, as defined in Subsection 3.C., are authorized and designated to exercise the power conferred by Section 287(a) of the Immigration and Nationality Act to carry firearms, during duty and non-duty hours, provided they are individually qualified by training and have demonstrated their ability to handle and safety operate the firearms that they are permitted to carry: maintain proficiency in the use of firearms; and adhere to the provisions of the policy governing the use of force.
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(1) Border Patrol Agents, including Border Patrol Aircraft Pilots;
(2) Special Agents and Immigration Agents;
(3) Deportation Officers, including Deportation Aircraft Pilots;
(4) Detention Enforcement Officers;
(5) Immigration Inspectors;
(6) Adjudications Officers (See note below);
NOTE: The authority of Adjudications Officers to carry a firearm is specifically limited to those officers who have successfully completed the Service's Basic Marksmarkship Instruction and Practical Pistol Courses as defined in Subsection 3.E. and are assigned to perform duties as an Inspector in a location which requires the carrying of a handgun. This authority permits transporting a handgun to an from such duty assignments, including training and quarterly qualifications, but may not be expanded to include carrying the handgun while off duty. Adjudications Officers are temporarily issued handguns only for those assignments which require the carrying of a handgun. Upon return to the office, the handgun will be turned in. Each office employing Adjustications Officers to perform inspectional duties requiring the carrying of a handgun will maintain a sufficient quantity of unassigned Inspections Program handguns for this purpose.
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(7) Immigration Officers and other Service employees who are granted the authority to carry a firearm, either individually or as a class, by the Commissioner with the approval of the Deputy Attorney General; and
(8) Officers who are responsible for supervising the activities of those officers listed above.
6. GUIDELINES FOR CARRYING FIREARMS
A. (1) Service authorization to carry a personally-owned handgun during duty hours or non-duty hours shall be limited specifically to Service-approved handguns in accordance with Subsection 18 and Appendix 1 (A and B). Where an officer is authorized under Subsection 21 to carry a non-standard Service-issued or approved handgun exclusively for an approved undercover operation, the officer is authorized to carry the handgun during duty and non-duty hours until such time as the undercover operation is completed or terminated.
B. (1) Service officers listed in Subsection 5.A.(1)—(8) are required to carry a Service-issued or approved handgun, and may be required to carry other firearms, during duty hours in the performance of their normal duties.
(2) Exceptions to this requirement are:
(a) Immigration Inspectors who were employed prior to November 1, 1989, and were granted a written personal exemption from the requirement prior to that date; and,
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(b) Adjudications Officers who are not assigned to conduct inspections.
(3) This subsection is not intended to require a Service officer to carry a handgun or other firearm while performing duties where the carrying of a firearm is inappropriate, such as performing routine office work, testifying in court, etc.
(4) Additionally, as outlined in Subsection 17.B., except in emergency situations, officers may decline to carry a longarm.
C. Service-issued or approved firearms shall be carried loaded with the Service-designated number of rounds for that firearm. Only Service-issued ammunition is authorized for duty carry and use by INS officers.
D. As described in Subsection 24, INS officers must be able, at any time, to demonstrate an acceptable level or proficiency with each type of firearm they are authorized to carry.
E. INS officers must be able to demonstrate an acceptable knowledge of the elements necessary to justify the use of deadly force.
F. The authority of either a single officer or a group of officers to carry a firearm during duty and/or non-duty hours may be withdrawn or restricted by the Authorizing Official when the withdrawal or restriction is in the best interests of the Service and/or the officer(s). A written notification, including a statement of the reason(s) for the revocation, shall be served upon the officer(s) as soon as practicable, and may either precede or follow the action. In all cases where the authority of an officer to carry a firearm while in the performance of duty is withdrawn or restricted, supervisors will ensure that the officer is not assigned to duties that normally require the carrying of a handgun.
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G. Except as provided herein, Service officers shall carry only one handgun on their person at a time. In an officer needs to carry two handguns at the same time, the officer must obtain written permission from his or her Authorizing Official prior to doing so. Authorization to carry more than one handgun will be based on factors including, but not limited to, types of duty performed, location of assignment, and justification submitted. Such written authorizations may be continuing in nature, and may apply to more than one officer, such as a group of officers assigned to the same type of duty or assignment. A copy of all such authorizations shall be placed in the Official Personnel File of each of the officers authorized to carry two handguns at the same time. A copy shall also be provided to the local Senior Firearms Instructor and the National Firearms Unit.
H. Authorizations for personally-owned handguns granted prior to November 1, 1989 which were ''grandfathered'' in accordance with the November 1, 1989 revision of the INS Firearms Policy will be revoked in accordance with the Service Pistol Issuance Policy.
I. Authorizations for personally-owned handguns granted between November 1, 1989 and the effective date of this policy are restricted to those handguns listed in Appendix 1A, and will be revoked in accordance with the Service Pistol Issuance Policy.
J. Authorizations for personally-owned handguns granted after the effective date of this policy are limited to those handguns listed in Appendix 1B. The list of Service-approved, personally-owned handguns will be periodically revised by the National Firearms Unit.
K. Authorizations for longarms, including all shotguns, rifles and submachine guns, are limited to those firearms that are listed in Appendix 1(A or B). No officer shall be authorized to train with, qualify with, or carry any type of longarm that has not been approved in writing by the appropriate Assistant Commissioner for use by officers in that program. In accordance with Subsection 18.N., Service officers are not authorized to carry or use personally-owned longarms on official duty.
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L. Service officers who are not members of a specialized tactical team which has been approved by the Special Response Team Review Board are not authorized to carry any firearm that is listed as a ''Special Weapon'' in Appendix 1(A or B). Special weapons are authorized for special operations only by officers specifically trained in their use and are not authorized for general use by Service officers.
M. When acting under INS authority, Service officers shall not carry a firearm while under the influence of illegal drugs (as described in the INS Drug Free Workplace Plan) or intoxicating alcoholic beverages. Additionally, Service officers acting under INS authority shall not carry a firearm while taking prescription medication which renders them unable to safely carry a firearm.
N. Service officers are to act in a professional manner and therefore will not carelessly or unnecessarily display firearms. The authority to carry firearms carries with it an obligation and
responsibility to exercise discipline, restraint, and good judgement in their use. Firearms will not be used to unlawfully coerce a person.
7. DEADLY FORCE INVOLVING FIREARMS
NOTE: Appendix 6 contains the Department of Justice policy which governs the use of deadly force by all Department of Justice employees. The policy statement and commentaries are to be read jointly and are considered to comprise the Department of Justice Deadly Force Policy. This Subsection is the supplemental deadly force policy negotiated between the INS and its Unions, and applies to all INS officers:
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A. Discharging a firearm shall be done only with the intent of stopping a person or animal from continuing the threatening behavior which justifies the use of deadly force. When deadly force is justified, an officer may use any level of force necessary, up to and including deadly force.
B. Firearms may be discharged under the following circumstances:
(1) When the officer reasonably believes that the person at whom the firearm is to be discharged possesses the means, the intent, and the opportunity of causing death or grievous bodily harm upon the officer or another person;
(2) At the driver or other persons inside a vehicle who the officer reasonably believes presents an imminent danger of death or grievous bodily harm to the officer or another person. The hazard of an uncontrolled moving vehicle, as well as the possibility of injury to other persons concealed in the vehicle, must be taken into consideration before firing;
(3) When confronted by an animal which presents an immediate threat to the officer or another person;
(4) When an animal is encountered that appears to be so seriously injured that it should be destroyed to prevent additional suffering. In the case of domesticated animals, officers should attempt to contact the owner prior to destroying the animal, if feasible;
(5) At a firearms sporting event or organized shooting competition; hunting for game and/or target practice on privately-owned land with permission of the owner; on public lands where the discharging of a firearm is not in violation of any law or ordinance and all reasonable safety procedures can be followed; or at a commercial, public, or government-owned firing range.
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C. Firearms shall not be discharged under the following circumstances:
(1) As a warning shot.
(2) At a moving vehicle for purposes of stopping the vehicle.
(3) In any situation where it appears likely that an innocent person will be injured.
D. Officers shall draw their handgun only when justified by the circumstances. Officers are not required to provide oral or written justifications for such actions unless requested by a supervisor. All oral or written statements solicited by a supervisor from bargaining unit employees regarding such actions shall be governed by the applicable provisions of the law and the Collective Bargaining Agreement.
8. COMPLIANCE WITH THE INS FIREARMS POLICY
A. Within thirty days of the implementation of this INS Firearms Policy, Authorizing Officials shall provide a complete copy of the policy to all Service officers who are authorized to carry a firearm.
B. Trainee officers in positions listed in Subsection 5.A.(1)—(8) shall be issued a complete copy of the Firearms Policy during their basic training at the Academy and provided a course of instruction to ensure their awareness of the elements of the policy and their personal responsibility to comply with the policy.
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C. Officers from another agency who enter the Service in a position described in Subsection 5.A.(1)—(8) at a grade level which precludes their attendance at one of the Service Academies shall be provided a complete copy of the INS Firearms Policy.
D. All officers will be given an opportunity to read this document during duty hours, ask questions pertaining to the policy, and receive answers in order to ensure their understanding of their role and responsibilities under this policy.
E. If questions regarding this policy cannot be answered to the satisfaction of the officer at the Service Academy or the duty station, the officer may submit the question in writing via telefacsimile to the National Firearms Unit, which shall provide an answer within three regular work days. The National Firearms Unit will periodically issue clarification of the policy based upon questions submitted.
F. Officers who encounter field situations that are unclear or not addressed in this policy are expected to exercise reasonable judgment. Following the resolution of the situation, officers are encouraged to report situations that are still unclear or that the officer feels should be addressed in the policy. Officers may contact the NFU for this purpose in accordance with Subsection 8.E.
G. Authorizing Officials shall ensure that supervisors and management officials under their supervision disseminate, review and discuss the contents of the Firearms Policy with each Service officer under their supervision.
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H. All Service officers employed in a position listed in Subsection 5.A.(1)—(8), including Basic Trainee officers, shall sign a statement (see Appendix 2) signifying possession of a copy of this policy, and his or her personal obligation to comply with the policy. Following initial implementation of this policy, on an annual basis, a new statement will be signed by each officer. The original signed copy will be forwarded to the officer's Servicing Human Resources Office for inclusion in the officer's Official Personnel File (OPF). A copy of the signed statement shall be forwarded to the Authorizing Official in charge of the officer's permanent duty station. These statements shall be retained in both files for a period of four years. At any time that the Firearms Policy is revised, a copy of the revised portion of the policy shall be provided to all Service officers. Any Service officer who requests a copy of the Firearms Policy at the time he or she is required to sign a statement signifying possession thereof shall be provided with a complete copy of the policy without cost or other consequences to him or her.
I. The penalties for non-compliance of the INS Firearms Policy shall be determined by the Department of Justice Table of Offenses and Penalties. These penalties can range from a verbal reprimand to termination of employment, depending upon the offense.
9. FIREARMS ABOARD COMMERCIAL AIRCRAFT
A. The following guidelines are based on Federal Aviation Regulations (FAR):
(1) Service officers are authorized to carry Service-approved handguns in the cabin of a commercial aircraft while in performance of their official duties in accordance with the conditions contained in Subsection 9.A.(3)(a)—(e). Service officers may also transport unloaded firearms in checked luggage.
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(2) In conjunction with their official duties, Service officers are authorized to carry handguns on board commercial aircraft at any time while the aircraft is parked at the gate or ramp. Upon boarding the aircraft, the officer shall identify himself or herself to the flight crew and notify them of his or her intention of either conducting an inspection of passengers, crew, or other workers on board the aircraft, or conducting other INS enforcement activities.
(3) The carrying of firearms in the cabin of a commercial aircraft is limited to the following circumstances:
(a) when a Service officer is required to carry a firearm in conjunction with an official duty assignment; or
(b) when a Service officer is conducting hazardous surveillance operations in conjunction with his or her official duty assignment; or
(c) when a Service officer is assigned protective prisoner escort; or
(d) when a Service officer is providing protective escort such as a dignitary or a witness protection assignment; or,
(e) when a Service officer is required to report to another location, armed and immediately prepared for duty.
(4) When armed and acting in an undercover capacity, a Service officer shall not attempt to deceive airline or airport security personnel to preserve the officer's cover. Service officers performing surveillance duties or other duties that will require inconspicuous passage through an airport metal detector or security checkpoint shall prearrange clearance.
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(5) All officers authorized to carry firearms shall receive FAA-approved, Service-provided training regarding carrying firearms on board commercial aircraft as either part of their basic training at the Academy, or as part of another course of formal training provided by the Service.
(6) Service officers may transport an unloaded firearm in checked luggage. The following procedures shall be followed:
(a) The firearm shall be secured in a locked, hard sided carrying case that may be placed inside hard or soft-sided luggage.
(b) The airline ticket agent shall be notified that the checked luggage contains an unloaded firearm.
(c) Pursuant to FAA regulations, airlines are required to place notifications of unloaded firearms only inside checked luggage. Officers should request that no identification that the luggage contains a firearm be placed on the outside of the luggage. If the issue cannot be resolved in a reasonable and professional manner, the officer should request assistance from the airline's Ground Security Coordinator (GSC) or schedule another flight.
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(d) Firearms shall not be stowed in the crew compartment(s) of an aircraft.
(7) FAA regulations require that Service officers present themselves to the airline at least one hour in advance of the flight and complete all required airline forms and check-ins. Failure to do so may result in the officer not being allowed to board that flight.
(8) Under no circumstances shall Service officers relinquish a firearm to the pilot or any member of the flight crew. Firearms shall not be left unattended in the aircraft.
(9) In accordance with FAA regulations, Service officers carrying a firearm within the cabin of an aircraft shall not consume alcoholic beverages within eight hours prior to departure of any flight or at any time during a flight.
(10) Non-uniformed Service officers shall conceal their handgun from view from passengers except when circumstances justify the use of a firearm in accordance with INS and FAA policies. Officers shall remain alert and maintain secure control of their firearm at all times.
(11) Pursuant to FAA guidelines, if an officer is on board an aircraft and a disturbance occurs that involves a passenger other than an INS-escorted prisoner, the officer shall take no action unless requested by a uniformed crew member.
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B. Instructions for Reporting Problems with Airline Personnel
(1) Pilots and air crew members have no authority to take personal custody of a Service officer's firearm. However, if a pilot refuses to accept the armed officer as a passenger, the officer should:
(a) Ensure that he or she is in compliance with INS guidelines and FAA regulations outlined herein; and
(b) Properly secure the firearm and have it stowed in the officer's checked baggage (if practicable); or
(c) Request assistance from the carrier's Ground Security Coordinator; or
(d) Schedule another flight.
(2) Any refusal by a pilot, or other airline or airport security personnel, to allow an armed Service officer to board an aircraft shall be documented in a written report by the officer and forwarded through official channels to his or her Authorizing Official. The Authorizing Official shall forward the report to the National Firearms Unit and to the appropriate airline carrier, with a copy to the Authorizing Official with jurisdiction over the airport at which the incident occurred.
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10. FIREARMS IN FOREIGN ASSIGNMENTS
A. The statutory and implied authorities for an INS Officer to carry a firearm do not apply in any foreign assignment. Accordingly, Service officers serving in foreign assignments shall not carry a firearm without the specific written concurrence of all of the following managers:
(1) Foreign District Director;
(2) Director, Office of International Affairs;
(3) Executive Associate Commissioner for Field Operations; and
(4) Deputy Commissioner.
In addition to the above approvals, all authorizations to carry firearms in a foreign assignment are subject to the approval of the Department of State and the host country.
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B. District Directors serving in foreign countries shall ensure compliance with this policy and the laws of the host country.
C. The guidelines in Subsections 10(A) and (B) do not apply to temporary entries by on-duty officers into Mexico or Canada. These entries shall be coordinated through the Office of International Affairs. All such arrangements will be made in compliance with applicable Service policies.
11. REPORTING OF SHOOTING INCIDENTS
A. Any Service employee who participates in or observes a reportable shooting incident, as defined in Subsection 3.H., shall orally report the incident to a supervisor. Unless the reporting employee is physically incapacitated or otherwise unable, the report shall be made within one hour of the time the incident occurs or within one hour of the time the employee becomes aware of the incident. If the incident occurs while the employee is on duty, the employee must report the incident prior to going off duty. The oral report shall be made either in person, or via radio or telephone, and will be comprised of the following information, if known:
(1) The date, time, and location of the shooting incident;
(2) The identity and current location of any injured or deceased person(s), including an assessment of the extent of the injuries;
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(3) The identity, physical description, and current location of any individual(s) known to be involved in, or to have witnessed the incident, including suspects who are at large;
(4) The description and location of vehicles involved in the incident, including any suspect vehicle(s);
(5) A brief description of the incident, including any unusual circumstance(s) which might cause additional conflict(s) or confrontation(s);
(6) The operational activity in which the Service employee(s) involved in the incident were engaged;
(7) The type of firearm(s) used, the number of shots fired, and the current location of all firearms used in the incident;
(8) Any other information that is needed to assure that the operational responsibilities of the Service related to the security of human life and Service equipment are properly carried out.
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B. Following the initial reporting of the incident, an employee who learns of additional information concerning the items listed in Subsection 11.A.(1)—(8) shall promptly make an oral report of such information to a supervisor.
C. Any supervisory or management official who is notified of the occurrence of a reportable shooting incident shall make an initial supervisory report to the appropriate Authorizing Official in accordance with the following:
(1) Incidents involving personnel assigned to a District or Sector, or any subordinate office within a District or Sector, will be reported to the District Director or Chief Patrol Agent;
(2) Incidents involving personnel assigned to an office or activity which is directly under the jurisdiction of INS Headquarters, e.g., BORTAC, El Paso Flight Operations, National Firearms Unit, Service Academies etc., will be reported to the District or Sector Authorizing Official with geographic and programmatic jurisdiction where the incident occurred. The Authorizing Official to whom the report is made will have jurisdiction over the investigation and will assume responsibility as if the employee(s) involved were part of the Authorizing Official's organization.
(3) The initial supervisory report shall contain all information known about the incident and shall be made within one hour of receipt of the first employee report, and may be made orally, either in person, or via radio or telephone. Whenever practical, the report shall be made through official channels, but the report shall not be delayed when observance of the chain-of-command is impractical.
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(4) Following the submission of the initial supervisory report, any supervisor or other Service management official who receives additional information regarding the incident shall report the information to the Authorizing Official as soon as practicable.
D. Any Authorizing Official who is notified of a reportable shooting incident shall report it to the appropriate Regional Director in accordance with Regional guidelines for the reporting of significant incidents and within one hour of the occurrence of the incident, or as close to that time
as practical, to the INS Command Center at (202) 616—5000. The report should contain all information known about the incident at the time.
(1) In any shooting incident where there is a death, serious injury, evidence of criminal misconduct by a Service employee, or an allegation of criminal misconduct by a Service employee, the Authorizing Official shall ensure that the incident has been reported to the law enforcement authorities having jurisdiction.
(2) Until the incident is resolved, the Authorizing Official shall be responsible for responding to requests for information about the incident from the public, the media, and other agencies with a ''need to know'' after coordinating such information releases with the appropriate Office of Press Information.
(3) Following the initial report of the incident and during the Service investigation, the Authorizing Official shall ensure that copies of all investigative reports, any other pertinent documents and copies of all printed and televised media reports are provided to the appropriate Regional Director and to the Office of Internal Audit.
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(4) Upon completion of the local Service investigation of the incident, and prior to the initiation of any disciplinary action(s), the Authorizing Official shall send a copy of the proposed final report to the Office of Internal Audit for preparation and submission to the Shooting Incident Review Committee (SIRC). The Authorizing Official shall delay the initiation of disciplinary action until the recommendation of the SIRC is received.
(5) The Authorizing Official shall also provide a written report of the final disposition of the incident to the Office of Internal Audit.
E. Upon receipt of a report of a shooting incident, the INS Command Center will immediately notify the Office of Internal Audit (HQOIA).
F. The Office of Internal Audit shall evaluate the initial report of the incident, contact the Authorizing Official to confirm receipt of the report, and notify appropriate Headquarters and Department of Justice offices.
G. Following receipt of the Authorizing Official's final report of the Service investigation of a reportable shooting incident, the Office of Internal Audit shall provide a copy to the National Firearms Unit for permanent retention. The NFU shall be immediately informed by the OIA of any incident that involves officer safety.
12.INVESTIGATION OF REPORTABLE SHOOTING INCIDENTS
A. Authorizing Officials.
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(1) In any incident where a law enforcement agency other than INS has the primary investigative jurisdiction, the Authorizing Official shall ensure that only the following actions are taken until contact with the responsible law enforcement agency has been made:
(a) Collect and report shooting incident information in accordance with Subsection 11;
(b) Ensure that medical attention is provided for any individual injured;
(c) Preserve the shooting incident scene and all relevant evidence;
(d) Identify witnesses; and,
(e) Exchange information with other law enforcement investigative agencies and advise them of the desire of the INS to maintain liaison during the investigation.
(2) Following contact with the law enforcement agency with primary investigative jurisdiction, the following actions will be taken: (In any incident where INS has the primary investigative jurisdiction, or the law enforcement agency with primary jurisdiction has relinquished it to the INS, these actions will be taken immediately.)
(a) The Authorizing Official is responsible for the completion of a local Service investigation of the incident. In incidents involving personnel from more than one Service jurisdiction, the responsibility to conduct the investigation shall be agreed upon among all Authorizing Officials with officers involved in the incident.
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(b) The Authorizing Official shall immediately notify the Immediate Subordinate Official of the incident and direct that he or she initiate the local Service investigation of the incident.
(c) The local Service investigation of the incident is intended to determine the following:
(i) Were the actions of all Service employee(s) involved in the incident appropriate and in accordance with this policy and other Service and Department of Justice guidelines?
(ii) Are there any factors which may indicate criminal misconduct by any Service employee(s)?
(iii) Are there any factors which should be referred to the INS General Counsel concerning potential litigation?
(iv) Are there any factors which indicate a need for a change in this policy or any other policy or guideline, or change in training or equipment, or which may be useful as a training aid for other Service employees?
(3) Upon completion of the local Service investigation of the incident, the Authorizing Official shall review the proposed final investigative report and, if applicable, reports prepared by other law enforcement agencies, and the proposing official's recommended disposition of the incident. Upon acceptance of the report and the proposed disposition, the Authorizing Official shall send the original to the OIA in accordance with the instructions contained in Subsection 11.D(5).
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B. Immediate Subordinate Officials.
(1) Upon notification that a reportable shooting incident has occurred and that an investigation has been directed by the Authorizing Official, the Immediate Subordinate Official shall:
(a) Open a file on the incident, obtain an incident tracking number from the OIA, and comply with the other instructions contained in Appendix 3 and/or the INS Shooting Incident Investigation Manual.
(b) Assign at least two investigating officers, as defined in Subsection 4.F.(5), to conduct the local Service investigation of the incident. No investigating officer who has a conflicting relationship with the involved employee(s) shall be assigned to the investigation.
(c) Direct that the investigating officers respond to the scene of the incident as soon as possible and initiate the investigation.
(d) Ensure that when any bargaining unit employee is compelled by or through the Agency to provide any information that could reasonably lead to disciplinary action against him or her (other than the initial verbal notification outlined herein), he or she is advised in writing of his or her right to Union representation in accordance with the applicable provisions of the law and the governing Collective Bargaining Agreement. Under normal circumstances, the decision by a bargaining unit employee to obtain Union representation prior to providing the requested report or statement shall not delay the employee's response longer than 48 hours, as set forth in the Collective Bargaining Agreement.
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(e) Ensure that supervisory or investigative officers involved in the local INS investigation of the shooting incident are aware that any information provided by any employee under threat of disciplinary action by the Service or through any other means of coercion cannot be used against such employee in any type of action other than administrative action(s) taken by the Service consistent with Garrity v. New Jersey, 385 U.S. 493 (1966).
(f) Direct that supervisory personnel present at the scene:
(i) Remind Service employees of their rights to Union representation and of their Constitutional protections against self-incrimination.
(ii) Ensure that all Service employees who are involved in the incident have been identified and advised that they will be interviewed by the investigating officers and that they are to remain on duty until the initial interview has been completed or they are released by a supervisor. (If the interview cannot be conducted within a reasonable period of time or the employee is physically or mentally unable to participate in the interview, the Immediate Subordinate Official shall direct the necessary rescheduling for this requirement.) Employees directed to remain on
duty shall be compensated under the appropriate overtime statute for all hours beyond the end of their scheduled shift.
(g) Ensure that supervisory personnel or INS investigating officers are aware that employees involved in a shooting incident shall not be required or allowed to submit a written statement of the circumstances surrounding the incident. All written statements regarding the incident shall be prepared by the local INS investigating officers and shall be based upon an interview of the INS employee.
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(h) Assume on-scene responsibility for media contacts and prevent media disruption of Service personnel who are present.
(2) Within one hour of the arrival of the Service's instigative team at the scene of the incident, the Immediate Subordinate Official shall provide the Authorizing Official with a preliminary report of the status of the situation, including updated information regarding the condition of injured persons and the employee(s) involved in the incident.
(3) Upon completion of the Service's investigation of the incident, the Immediate Subordinate Official shall ensure that a single, consolidated report of the incident is prepared by the investigating officers.
13. SERVICE PERSONNEL INVOLVED IN A SHOOTING INCIDENT
A. When a Service officer's reportable use of a firearm, as defined in Subsection 3.H., either on or off duty, results in death or serious injury to a person, the officer shall immediately be placed on Administrative Leave with pay and/or regularly scheduled days off for three consecutive calendar days in order to participate in a confidential debriefing conducted by a counselor from the Employee Assistance Program (EAP). If periods of EAP counseling occur on scheduled days off duty, these periods shall be compensated as directed overtime. Requests for additional administrative leave for this and other related purposes shall be granted by the Authorizing Official on a case-by-case basis. The officer shall be available to assist in the completion of the local INS investigation to the extent that this does not conflict with the terms of the applicable Collective Bargaining Agreement.
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B. While on Administrative Leave following a shooting incident, those officers compensated with Administratively Uncontrollable Overtime or Law Enforcement Availability Pay shall continue to receive overtime pay and will be credited with excludable days in accordance with existing laws, government-wide regulations and Service policy.
C. The Service shall ensure that all involved officer(s) are debriefed by an EAP counselor. This debriefing is mandatory, is confidential in accordance with 42 C.F.R. Part 2, and is not part of the investigative process. Its sole purpose is to assist the employee in dealing with the traumatic incident. The EAP uses a national network of police psychologists for specialized counseling in traumatic incident cases such as shootings.
D. While the Service's internal investigation of the incident, or a criminal investigation of the incident, is being conducted, the Authorizing Official may, with the concurrence of the appropriate Regional Director, continue the officer on Administrative Leave with pay until either or both of the investigations are completed. If any such investigation lasts more than 30 days beyond the date of the shooting incident, the Authorizing Official will provide the affected employee with a status report of the investigation(s) at 30 day intervals until the employee is returned to full duty status. The report may be oral or in writing, and will inform the employee of the status of the investigation(s) to the extent known by the Service and an estimated time of completion of the investigation(s).
E. Service officers who are involved in shooting incidents may be tested in accordance with the Service's Drug-Free Workplace Program:
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(1) Reasonable Suspicion testing may be required when there are articulable facts that the shooting incident was the result of illegal drug use. The decision to direct an INS officer to report for Reasonable Suspicion Testing in accordance with the INS Drug Free Workplace Plan shall be based on articulable information, facts, and circumstances which lead supervision to believe that reasonable suspicion exists that the officer is using illegal drugs as defined in the INS Drug Free Workplace Plan. All such determinations must be approved by a higher level of management than the level of management making the initial determination.
(2) Upon written request, an employee who has been tested for drugs in accordance with this Subsection will be provided a copy of the written justification (which may include such matters as the dates and times of reported drug related incidents, reliable/credible sources of information, and the rationale leading to the test) for such testing no later than 48 hours after the employee is sent for testing.
14. SHOOTING INCIDENT REVIEW COMMITTEE (SIRC)
A. The membership of the Shooting Incident Review Committee shall be comprised of the following:
(1) Director, Office of Internal Audit, or the Assistant Director for Internal Investigations;
(2) Chairperson, Firearms Review Board;
(3) The Administrator of the INS National Firearms Unit, or his or her Deputy;
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(4) The Executive Associate Commissioner for Field Operations, or his or her Deputy; and
(5) A representative from the Department of Justice, Office of the Deputy Attorney General;
B. Meetings of the SIRC shall be scheduled to occur on the same day as the FRB meetings.
15. SERVICE FIREARMS REVIEW BOARD
A. The voting membership of the Service Firearms Review Board shall be comprised of the following:
(1) Director, Law Enforcement Support, (Chairperson);
(2) Associate Commissioner for Enforcement,
(3) Assistant Commissioners for Border Patrol, Detention and Deportation, Inspections, Intelligence and Investigations, or their Deputy;
(4) The Administrator of the INS National Firearms Unit, or his or her Deputy;
(5) Director, Office of Internal Audit, or the Assistant Director for Internal Investigations;
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(6) The Director of the Training Division or his or her designee;
(7) The Executive Associate Commissioner, Office of Field Operations, or his or her Deputy; and
(8) A representative from the Office of the General Counsel;
B. The non-voting membership of the Board shall be comprised of the following;
(1) The Executive Secretary, who shall organize the Firearms Review Board meetings, record the minutes, and prepare reports of the meeting;
(2) One staff officer designated by each Assistant Commissioner. These officers shall comprise the Firearms Review Board Working Group.
C. The Firearms Review Board shall make decisions based on a majority vote of those members present at meetings where at least two-thirds of the voting members are present. Alternate members are allowed to vote in the absence of the primary member.
D. The Firearms Review Board shall meet the first Thursday of each month unless there is a scheduling conflict, in which case the meeting shall be rescheduled as soon as possible. If the Chairperson is unavailable, the Administrator of the National Firearms Unit will act as Chairperson.
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E. Voting primary members, or their alternates, are required to attend each meeting in order to make decisions affecting their program, to receive individual program assignments, and to be sure that their program's designated staff member understands and completes assignments in a timely manner.
16. NATIONAL FIREARMS UNIT (NFU)
A. The INS National Firearms Unit shall operate as an extension of the Firearms Review Board in overseeing the Firearms Program. The National Firearms Unit shall be directed by the Administrator, National Firearms Unit.
B. The National Firearms Unit shall prepare annual and periodic reports on all matters relating to the INS Firearms program. A copy of these reports will be provided to all appropriate INS offices, the National Border Patrol Council and the National Immigration and Naturalization Service Council.
17. ISSUANCE OF FIREARMS
A. Assistant Commissioners for the Enforcement Programs and Inspections are responsible for identifying the firearms that are appropriate to the mission of the Service officers within their program. A list of authorized Service-issued or Service-approved, personally-owned firearms for each job category is contained in Appendix 1 (A or B). In addition, Assistant Commissioners for
the Enforcement Programs and Inspections are responsible for providing funding to the National Firearms Unit for the acquisition of Service firearms, ammunition, related equipment and supplies for their respective programs and coordinating the issuance of these items with the National Firearms Unit.
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B. Based on the duty assignment, Authorizing Officials shall issue officers under their jurisdiction firearms listed for the officer's job category in Appendix 1(A or B). Except in emergency situations, officers may decline to carry a longarm.
C. The Authorizing Official's decision on which longarms are appropriate for issuance for a particular duty assignment should be based on the performance characteristics of the firearm and cartridge, effective range or penetrating ability, environment, etc. Guidelines for longarms are provided in Appendix 4. These guidelines shall be updated periodically by the National Firearms Unit.
D. Firearms shall be issued only to officers who have successfully completed Service-approved training as defined under Subsection 3.E., demonstrate proficiency (safe operating techniques and/or immediate action drills), and are currently qualified with that particular type of firearm.
E. Offices issuing an employee a firearm shall record the issuance of the firearm on Form G—571, Defensive Weapons Control Card for Temporary Authorizations. The Form G—571 will also be used to document the authorization of personally-owned handguns.
F. In order to support and encourage participation of Service officers in competitive shooting events, the National Firearms Unit will issue competition shooting equipment when available. When competition shooting equipment is received from the National Firearms Unit at an INS office, it shall be issued immediately to the Service officer to whom it was assigned.
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(1) The National Firearms Unit shall prepare a Form G—504, Record of Property Shipped-Received, showing that the competition shooting equipment was shipped to a particular INS officer.
(2) A separate property card, Form G—571, listing only the competition shooting equipment shall be executed in duplicate and shall contain the following notation in capital letters:
COMPETITION SHOOTING EQUIPMENT--THIS EQUIPMENT IS NOT TO BE TRANSFERRED EXCEPT AS DIRECTED BY THE NATIONAL FIREARMS UNIT, UNLESS THE OFFICER IS TERMINATING EMPLOYMENT WITH THE SERVICE.
(3) Both copies of the property card shall be initialed by the Service officer to whom the competition shooting equipment is used.
(4) The original property card shall be filed with the officer's regular property card and the duplicate shall be forwarded with a copy of the G—504 to the National Firearms Unit.
18. APPROVED FIREARMS
A. Authorization to carry handguns during duty or non-duty hours shall be limited specifically to those Service-approved handguns, by job category, as listed in Appendix 1(A or B) (See exception for undercover firearms in Subsection 21).
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B. Requests for non-standard firearms for operational use by INS field offices shall be forwarded to the appropriate Assistant Commissioner and the National Firearms Unit for concurrence, and to the Firearms Review Board for approval. If approved, the National Firearms Unit will coordinate the acquisition and distribution of the non-standard firearms. Non-standard firearms are defined as firearms not specifically issued in Appendix 1(A or B) that meet the criteria in Subsection 21, Undercover Operations.
C. Authorization to carry any longarm shall be limited specifically to those Service-approved longarms listed in Appendix 1(A or B) for each job category.
D. All Service issued or approved firearms shall have a blued, anodized, ''Parkerized,'' phosphated, or other durable non-reflective finish. An exception is stainless steel handguns, which shall have a non-reflective matte finish.
E. Firearms will have fixed or adjustable sights, and may be equipped with tritium ''night'' sights.
F. No laser sights, passive optical sights or attached illumination devices are authorized unless the item has been evaluated and approved by the National Firearms Unit specifically for use by the requesting entity.
G. Handguns with obtrusive thumb-rest type grips, or pearl, bone or other ostentatious grips shall not be carried.
H. Since the implementation of the November 1, 1989 Firearms Policy, INS officers have not been authorized to carry single-action-only semi-automatic pistols either on or off duty under INS authority.
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I. Authorization to carry personally-owned handguns.
(1) Service officers who desire to carry a personally-owned handgun in conjunction with their official duties are limited to those handguns listed in Appendix 1(A or B).
(2) Prior to carrying a personally-owned handgun in conjunction with their official duties, officers must obtain written authorization from the Authorizing Official using the form found in Appendix 5. Copies of the completed authorization form shall be distributed as shown on the bottom of the form.
(3) Handguns obtained for such use must meet the Service specifications established by the National Firearms Unit. Officers may not make modifications to these handguns except as outlined in this policy.
(4) Prior to submitting the request to the Authorizing Official, the requesting officer must obtain the concurrence of the District or Sector Senior Firearms Instructor.
(5) Prior to allowing an officer to qualify with a Service-approved, personally-owned handgun, the Firearms Instructor shall inspect the handgun to determine it to be in safe and serviceable condition and shall verify the descriptive data for the handgun contained on the request.
(6) Prior to recommending approval of the request, the Firearms Instructor shall verify that the requesting officer has successfully completed the requisite INS firearms training course.
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(7) The requesting officer shall be required to comply with the provisions in Subsection 24, which includes the demonstration of proficiency and satisfactory completion of the qualification course with the handgun.
J. Authorizing Officials shall approve requests to carry a Service-approved, personally-owned handgun when such requests comply with this policy. The Firearms Control Officer shall create a Form G—571 Defensive Weapon Control Card for Temporary Authorizations for each authorized personally-owned handgun.
K. When the transition to the Service pistol is completed, Service-issued or approved semi-automatic pistols in 40 S&W caliber will replace all other pistols listed in Appendix 1A. Appendix 1B reflects these changes. The National Firearms Unit shall update the list of authorized firearms contained in Appendix 1B on a periodic basis.
L. The National Firearms Unit may immediately discontinue one or more of the firearms listed in Appendix 1(A or B) if a significant problem is discovered which affects the safety or reliability of the firearm.
M. Officers may be authorized to have up to two Service-approved handguns to allow flexibility in choosing suitable duty firearms. The Service shall provide one Service-issued handgun to each officer. Officers who are authorized to carry a personally-owned handgun will not be required to surrender their Service-issued handgun.
N. Because the Service provides appropriate longarms for specific duties, Service officers are not authorized to carry or use personally-owned shotguns or rifles on official duty.
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O. Authorizing Officials are required to ensure periodic inspections of each officer's authorized firearm(s) are conducted to determine compliance with this policy. These inspections shall be conducted by the Firearms Instructor or Range Safety Officer in conjunction with the function and safety inspections. Inspections of the general condition and functioning of firearms may also be performed by first-line supervisors. The inspections will include the overall condition and functioning of the firearm and verification of the model and serial number. In addition, the ammunition carried by the officer may also be inspected to ensure that it is Service-issued and in good condition.
19. HOLSTERS AND AMMUNITION CARRIERS
A. Holsters and ammunition carriers that are currently authorized shall remain authorized until an officer completes the transition to a. 40 caliber semi-automatic pistol.
B. Officers may purchase holsters and/or magazine carriers that meet the following specifications:
(1) For standard uniformed duty:
(a) Holsters must be direct-draw, belt-mounted on the strong-side, and equipped with a thumb-break retaining strap;
(b) Holsters and magazine carriers shall be black in color;
(c) The body of the holster shall be constructed of plain leather. The loop of the holster may be constructed of leather and steel laminate or other durable materials;
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(d) The trigger guard of the handgun must be encased within the holster when the handgun is strapped in place;
(e) No skeletonized holsters are authorized;
(f) Magazine carriers shall be constructed of plain black leather and equipped with a flap with snap.
(2) For special unit duty (e.g., BORTAC, SERT, TIAC, etc.):
(a) Holster and magazine carriers may be constructed of any durable material.
(b) Holsters and magazine carriers may be of any design that securely retains the handgun and/or magazines.
(3) For plain-clothes duty.
(a) Holsters and magazine carriers may be constructed of any durable material.
(b) Holsters may be of any design that securely retains the handgun and allows the officer to quickly draw the handgun.
(c) Holsters and magazine carriers must be concealable.
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(d) Holsters and magazine carriers may be black, brown, tan, or any other color approved by the Authorizing Official.
20. AUTOMATIC WEAPONS
A. The authorization to train with or use automatic weapons is restricted to those categories of officers listed in Appendix 1(A or B) for which automatic weapons are approved. Changes to the list of approved automatic weapons shall be made only with the approval of the Firearms Review Board.
B. To be authorized, these officers must have successfully completed a course of training specifically designed for the model of weapon to be carried. Such course(s) must be reviewed and approved by the Director of Training, the National Firearms Unit, and the Firearms Review Board. Additionally, the officers must be currently qualified with the firearm to be carried.
C. Sector Authorizing Officials shall authorize Patrol Agents-in-Charge (PAIC), or designated Supervisory Border Patrol Agents, to approve the issuance of automatic weapons at any time there is a potential for armed confrontations where the use of automatic weapons is appropriate to the operations and the environment.
D. District Authorizing Officials shall limit authority for local control and assignment of automatic weapons to no lower than the Assistant District Director level.
E. Authorizing Officials shall assign an Assistant Chief, Assistant District Director or other appropriate senior management official with the primary responsibility for the overall inventory control, maintenance, and security of automatic weapons. This individual shall either act as the Firearms Control Officer (FCO) or direct the activities of the FCO, and shall also oversee all training and qualifications with automatic weapons within his or her jurisdiction.
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F. Automatic weapons are authorized only for official use during duty hours.
G. Officers issued automatic weapons shall be trained to use the semi-automatic mode unless the tactical situation dictates the full automatic mode, and then only at relatively close range.
H. When not in use, automatic weapons shall be stored in locked storage vaults in a secure area. Although the protection of automatic weapons should be greater than that of other Service longarms, the weapons should also be readily available for immediate use by qualified officers.
I. Service officers are responsible for ensuring that automatic weapons issued to them are properly safeguarded at all times. Service officers shall not leave automatic weapons unsecured. The Service shall provide locking security devices to secure automatic weapons in all appropriate vehicles and other locations where duties may require officers to have immediate access to automatic weapons. If no such device is available, automatic weapons must remain within the immediate control of the officer.
J. All issuances of automatic weapons shall be documented on Form G—571. A new entry shall be made for each issuance. The Firearms Control Officer shall periodically review all Forms G—571 and ensure that a proper accounting is made for all automatic weapons.
K. No automatic weapons, suppressed (silenced) weapons, or ''any other weapons'' as described in the National Firearms Act of 1934 (e.g., short-barrelled rifles and shotguns, pen guns, etc.) which are personally-owned will be authorized for official use.
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21. UNDERCOVER OPERATIONS
A. As part of the approval of an undercover operation, and Authorizing Official may grant authorization to a Service officer designated to act in an undercover capacity, exclusively for that operation, to carry a non-standard Service-issued or approved handgun other than those specified in Appendix 1 (A—B). Such weapons must be listed as special equipment on Form G—819, Request for Undercover Operation. These non-standard handguns will be subject to all Service criteria, with the following exceptions.
(1) Revolvers authorized for undercover operations shall be chambered for .38 Special or .357 Magnum, double-action with a steel-frame and a minimum capacity of five (5) rounds.
(2) Semi-automatic pistols authorized for undercover operations shall be double-action, and chambered for .380 ACP, 9mm, .40 S&W, or .45 ACP.
B. The Form G—819 shall clearly describe the particular non-standard handgun to be carried and must contain a justification as to why that type of handgun is required. The justification shall be followed by a statement that the handgun has been inspected and approved by the District or Sector Firearms Instructor. Service officers approved to carry a non-standard handgun will be issued ammunition for practice, qualification and duty use. The undercover agent will be authorized to receive ammunition and qualify with the non-standard handgun upon approval of the Form G—819. The undercover officer must qualify and demonstrate proficiency before carrying the non-standard handgun.
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C. Ammunition for use in non-standard firearms used in undercover operations shall be procured by the National Firearms Unit. Upon receipt of a Form G—514 requisition containing a description of the required ammunition, with an attached copy of the approved Form G—819, the National Firearms Unit shall distribute such ammunition. Procurement and distribution of non-standard ammunition shall be in the limited quantities required to support undercover operations.
22. ISSUANCE AND EXPENDITURE OF SERVICE AMMUNITION
A. All Service-issued ammunition will be new, commercially manufactured, and procured by the National Firearms Unit through the Service's procurement process. No other Service entity shall conduct any research and development, test and evaluation, or procurement of any ammunition or component product.
B. Only Service-issued ammunition shall be used in Service-owned firearms. Officers carrying Service-approved, personally-owned firearms may only use Service-issued ammunition for qualification or carrying under INS authority.
C. Authorizing Officials shall issue each officer authorized to carry a handgun a minimum of 50 rounds of duty ammunition for carrying. Service officers shall rotate ammunition by expending, during quarterly qualifications, those rounds carried on duty. Replacement duty ammunition will be issued to each officer immediately following the officer's completion of the quarterly qualification.
D. Service officers shall use duty or hazard-free ammunition for qualifications, practice, and training. Exceptions may occur if safety-related problems are discovered. Authorizing Officials will immediately notify the National Firearms Unit in writing if such ammunition cannot be used on a particular firing range. Exceptions to the requirement to use such ammunition for qualifications may also be granted by the National Firearms Unit upon determination that a safety or other problem exists with firearms or ammunition.
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E. (1) In addition to the handgun ammunition necessary for official quarterly qualifications, Authorizing Officials shall issue a total of 150 rounds of handgun practice ammunition per quarter to each Service officer authorized to carry a handgun.
(2) If ammunition inventories are insufficient in a given quarter, the practice ammunition for that quarter shall be issued as soon as inventories permit.
(3) The officer will initial Form G—484 Ammunition Log Sheet, in the column entitled ''Issued To'' upon receipt of his or her quarterly issuance.
F. (1) The Service's purpose in issuing practice ammunition is to enable officers to maintain proficiency and/or improve their shooting skills.
(2) It is expected that officers will expend this ammunition on a regular basis.
(3) In order to receive additional practice ammunition, officers are required to turn in expended casings. Other than the initial issuance of practice ammunition, replacement practice ammunition shall be issued upon receipt of expended casings totaling at least 50% of the amount of ammunition to be issued. In circumstances where officers practice on ranges that require that the expended casings be left behind, this fact shall be documented and this requirement shall not apply.
(4) While officers shall make reasonable efforts to locate all expended casings, it is recognized that a number of factors may make full recovery impossible. Officers are expected to turn in all expended cases located. If less than 50% of an individual's expended casings are turned in, the officer shall be required to submit an explanatory memorandum to the Ammunition Control Officer in order to receive additional practice ammunition.
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(5) Service officers shall expend practice ammunition at appropriate locations and times in accordance with all applicable law, ordinances, and policies.
G. Based on the Firearms Instructor's assessment, Authorizing Officials shall provide additional handgun ammunition for supervised practice to Service officers who fail to qualify or are consistently marginal in demonstrating proficiency in order to improve their ability. This should be a reasonable amount, sufficient to qualify or improve marginal proficiency.
H. Service officers may request ammunition for use in competitive handgun and rifle shooting events by submitting a memorandum to the Authorizing Official. If such ammunition is available in the local inventory and issuance will not cause a shortage for duty, training, practice, or qualification use, it shall be issued to the officer. Ammunition not in the inventory may be requisitioned through the National Firearms Unit. Approval of requests for the purchase of ammunition for competitive shooting is subject to availability of funding and concurrence of the Assistant Commissioner of the funding program. Ammunition issued for competitive shooting events is limited to ammunition available on INS contracts. Officers who receive ammunition for use in competitive shooting are required to maintain a record of the use of ammunition and submit evidence of participation in competitive events to the Ammunition Control Officer, who will forward a copy to the National Firearms Unit.
I. Ammunition for practice and/or sighting-in with appropriate longarms shall be issued at the range prior to firing the quarterly qualification course as follows:
(1) 12 gauge rifled slug--5 rounds,
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(2) 12 gauge 00 Buck--5 rounds,
(3) 9mm or .40 caliber--20 rounds,
(4) .223 55 grain FMJ-BT--20 rounds,
(5) .308 150 grain FMJ-BT--20 rounds.
In accordance with Subsection 4.H., Ammunition Control Officers shall determine ammunition requirements for all programs within their jurisdiction based on specific guidelines issued by the National Firearms Unit. The guidelines will be used to calculate annual ammunition requirements based on the number of officers in each program, types of firearms used by each officer in each program, types of ammunition used by each officer, current inventory by type of ammunition in each program, and projected usage based on practice, qualifications, competition, and training.
23. FIREARMS TRAINING
A. Basic Firearms Training.
(1) All Service officers entering on duty as a trainee in one of the positions listed in Subsection 5.A.(1)—(8) shall receive the Service's Basic Marksmanship Instruction and Practical Pistol Courses during their basic academy training.
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(2) Service officers employed in one of the positions listed in Subsection 5.A.(1)—(8) shall not graduate from one of the Service Academies without successful completion of the Basic Marksmanship Instruction and Practical Pistol Courses.
(3) The progress of all Basic Trainee officers in firearms training shall be documented by the appropriate Service Academy.
(4) Upon request, Basic Trainee officers undergoing training at the Academy will be allowed to review their personal training file for the purpose of verifying their standing with regard to proficiency in firearms.
(5) Any Service officer who initially enters on duty with the Service in one of the positions listed in Subsection 5.A.(1)—(8) at a grade level which does not require the officer to attend one of the Service's basic academies shall not be authorized to carry a firearm until either:
(a) The officer has provided documentation of previous law enforcement firearms training to the Director of Training and received a certification of equivalency of training as defined in Subsection 3.E.; or,
(b) The officer has completed an alternate course of basic firearms instruction developed by the INS Training Division and provided by INS Firearms Instructors. This course shall include all necessary curriculum components to provide the officer with a level of knowledge, skill, and ability equivalent to that of an officer who successfully completes the Service's requirements for BMI/PPC while undergoing Basic Immigration Law Enforcement Training.
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(6) Refresher training in the basic principles of firearms marksmanship shall be periodically provided on an on-going basis to all Service officers listed in Subsection 5.A.(1)—(8). Such training will be provided by INS Firearms Instructors and will be accomplished in a manner that reinforces the skills and abilities which were acquired by the officers while undergoing their initial firearms training with the Service.
(7) The Training Division shall develop and disseminate appropriate lesson plans and training aids for the teaching of basic marksmanship. These items shall be periodically updated and provided to all Firearms Instructors who have successfully completed the Service's requirements for instructor training and have been assigned to perform the full-time or part-time collateral duty of Firearms Instructor.
B. Quarterly Training.
(1) In conjunction with the quarterly firearms qualifications for Service officers, Authorizing Officials shall schedule the remainder of the work day for additional firearms-related training. The training shall consist of a combination of classroom instruction and practical exercises and shall be accomplished during the regular work day. All hours spent in this training and related travel shall be compensated in accordance with applicable laws, government-wide regulations and policies. The training shall be provided by Service personnel who have been trained as instructors using a course of training that has been reviewed and approved by the Director of Training and the Firearms Review Board. This training may be conducted on any part of the Service's Firearms program. However, certain issues must be addressed bi-annually, such as the use of deadly force. The following topics are examples of subjects that shall be discussed in the training sessions:
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(a) Service policy on the use of deadly force;
(b) Other subsections of the INS Firearms Policy that involve complex issues or require clarification;
(c) Escalation of force, including training on the use of intermediate force devices;
(d) Proper judgment in shoot/don't shoot situations;
(e) Tactical use of firearms; and
(f) Practical firing exercises (other than standard INS qualification courses);
At the discretion of the Authorizing Official, other firearms related topics may be added as needed.
(2) All training must be documented, with course guidelines and lesson plans developed in coordination with the Training Division, and retained in a separate quarterly training file. These files shall be subject to review during routine field inspections. Attendance logs shall be maintained that indicate that Service officers have received the above training.
The Training Division shall develop and disseminate the necessary lesson plans and training aids to be used during the Quarterly Training Day sessions. The attendance of all officers at this training must be documented and preserved by the Senior Firearms Instructor in a separate training file for each quarter. These files shall be subject to review during routine field inspections.
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C. Remedial Training.
(1) General.
(a) The Service shall provide remedial training to any Service officer who is unable to demonstrate the required degree of proficiency in the use of the handgun.
(b) The Training Division shall prepare lesson plans and training aids or materials necessary for the presentation of remedial training. These items shall be based on Service-approved Basic Marksmanship Instruction and Practical Pistol Course Lesson Plans, and shall include a combination of classroom instruction and live-fire training. Blocks of actual live-fire training shall not exceed 2 hours in length, with no more than 2 blocks of live-fire training per day. INS officers shall be provided with sufficient remedial training to allow them to qualify and/or improve their abilities, up to a maximum of 40 hours of live-fire remedial training per failure to demonstrate proficiency.
(c) Remedial training shall be conducted during normal duty hours and commence as soon as practicable.
(d) Remedial training shall also be given to all Service officers involved in unintentional discharges. Such training shall include a general component covering safe handling practices and procedures and specific component(s) directly relating to the probable cause of the incident as revealed by the investigation. In all cases, a record of the administration of remedial training shall be made a part of the Service investigation file of the incident.
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(2) Basic Trainee Officers.
(a) Basic Trainee officers whose employment is jeopardized by their inability to demonstrate proficiency with a handgun shall promptly be notified of this fact in writing. This notice shall also inform such employees of their right to consult with a Union representative. The Unions shall provide the Service with a list of Union officers designated to represent Basic Trainee officers in these matters. The Service shall provide this list to the aforementioned Basic Trainee officers concurrent with the service of the notice.
(b) Individual Basic Trainee officers who are required to carry a handgun and otherwise complete all other aspects of one of the Service Academies but fail to qualify with a handgun during the Basic Marksmanship Instruction and Practical Pistol Courses will be provided remedial training as outlined in Subsection 23.C.(1)(B) in order to assist them in successfully completing these courses. Such training will be conducted by the Academy, and will consist of 80 additional hours of training devoted exclusively to firearms instructions, unless the Basic Trainee officer successfully completes the BMI/PPC courses sooner, in which case he or she shall graduate immediately.
(c) To the extent possible, all remedial training will be scheduled to minimize adverse impact upon the training of Basic Trainee officers in their other areas of study.
(d) In each instance where a Basic Trainee officer fails to successfully complete the Basic Marksmanship Instruction and Practical Pistol Courses, the primary firearms instructors shall prepare a memorandum outlining the reasons for the officer's failure. The report will include the instructor's analysis of the reasons for the failure and any recommendations for improving the Basic Marksmanship Instruction and Practical Pistol Courses. These reports shall be submitted to the Director of Training through channels. The Director of Training shall ensure that a copy is promptly forwarded to the National Firearms Unit for appropriate dissemination and/or action.
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(e) During the first month of each quarter, the Director of Training will prepare a summary report specifying the number of Basic Trainee officers who failed to successfully complete the Basic Marksmanship Instruction and Practical Pistol Courses for the preceding quarter and the reasons for such failures. The report shall include a comparison of the rate of failure with the overall number of officers who successfully completed the Basic Marksmanship Instruction and Practical Pistol Courses during the same period. The report shall be forwarded to the National Firearms Unit, which will distribute copies of the report to the Firearms Review Board and both Union Councils.
(3) Other INS Officers.
(a) This subsection applies to INS officers who meet all of the following requirements:
(i) successful completion of Basic Marksmanship Instruction and Practical Pistol courses as defined in Subsection 3.E.;
(ii) successful completion of the initial one year period of non-supervisory probationary employment; and
(iii) completion of remedial firearms training as described in Subsection 23.C.(1)(c).
(b) Those officers described in Subsection 23.C.(3)(a) who, for reasons beyond their control, continue to be unable to demonstrate an acceptable level of proficiency with the handgun may be reassigned to a position other than those listed in Subsection 5.A.(1)—(8) (with the exception of Adjudications Officer positions that do not require the performance of duties as an Immigration Inspector). Such reassignment shall not obligate the Service to pay relocation expenses and shall not involve reassignment to a position which has non-competitive promotion potential beyond the position from which the officer is reassigned.
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(c) Those officers described in Subsection 23.C.(3)(a) who, for reasons which reasonably appear to be within their control, continue to be unable to demonstrate an acceptable level of proficiency with the handgun may be removed from employment in accordance with applicable laws, government-wide regulations and Service policies.
D. Firearms Instructor and Range Safety Officer Training.
(1) Except for INS Training Specialists/Armorers, only INS officers can serve as Firearms Instructors or Range Safety Officers or in any similar capacity.
(2) Firearms Instructors.
Firearms Instructors are officers assigned the collateral or full-time duties of the position by the Authorizing Official in each District, Sector, or other Service location. They are authorized to conduct Service-approved firearms training, remedial training, and training in the use, care and maintenance of firearms. At each location, one Firearms Instructor shall be designated as the Senior Firearms Instructor and shall be responsible for all firearms-related training at that location. Firearms Instructors are required to provide training to Range Safety Officers. The Senior Firearms Instructor is also required to observe each Range Safety Officer under his or her jurisdiction conduct a minimum of one qualification annually; to provide on-going instruction to the Range Safety Officers, as necessary; and to ensure compliance with this policy.
(3) Range Safety Officers.
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Range Safety Officer(s) are officers assigned the collateral duties of the position by the Authorizing Official in each District, Sector, or other Service location. They are authorized to conduct quarterly qualifications, ensure safety on the range, and assist the Firearms Instructor in conducting firearms training. Range Safety Officer training shall be conducted at the local level and shall include proper operation of the range, instruction on conducting qualifications, range safety, basic marksmanship, and proper use of positions and cover.
(4) Certification requirements.
(a) Authorizing Officials shall designate officers to serve as Firearms Instructors and/or Range Safety Officers.
(b) Prior to conducting qualifications, familiarization or training, all Service Firearms Instructors must be certified as having successfully completed the FLETC Firearms Instructor Training Program (FITP) course or the Border Patrol FITP course. In addition, Firearms Instructors shall be trained by the Service as instructors in the use of each type of firearm authorized for use by officers under their jurisdiction.
(c) Firearms Instructors shall be required to be FITP re-certified at a minimum of every 5 years.
(d) Firearms Instructors shall be required to attend a minimum of 16 hours of additional non-INS firearms training annually to retain their designated Firearms Instructor status. This training shall be provided by other law enforcement agencies, military or commercial organizations, and must be approved in advance by the National Firearms Unit. Upon completion of the training, a copy of the officer's training course certification shall be provided to the
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National Firearms Unit for inclusion in their file and on the National Firearms Unit's database of Firearms Instructors.
(e) Authorizing Officials shall ensure that Firearms Instructors within their jurisdiction meet the minimum annual training requirement. Authorizing Officials shall schedule attendance of additional firearms training courses for Firearms Instructors on regular duty time. Unless funded by a higher Service organizational level, all costs associated with firearms training will be funded at the local level.
(f) Failure of INS Firearms Instructors to successfully complete the required minimum of non-INS annual training shall result in suspension of the Firearms Instructor's designation by the National Firearms Unit.
(g) The foregoing certification requirements do not apply to Range Safety Officers.
(4) All Service firearms training shall be in compliance with this policy and other INS training policies.
(5) A database for all Firearms Instructors and Range Safety Officers shall be maintained by the National Firearms Unit. Updated information pertaining to firearms courses and training attended by Firearms Instructors and Range Safety Officers shall be included in the database.
E. Night (Low-Level Light) Firearms Training.
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(1) Authorizing Officials shall ensure that all officers under their jurisdiction participate in a minimum of one training session per year for the purpose of familiarizing officers with firing conditions found under night (low-level light) conditions.
The Training Division shall prepare and disseminate lesson plans and training aids and materials necessary to provide a uniform course of training for the use of firearms under night (low-level light) conditions on any of the various types of range facilities used throughout the Service.
(2) Sunglasses or similar devices shall not be used to simulate night or low-level light conditions.
(3) At a minimum, the familiarization course shall require officers to fire at least 50 rounds at distances not to exceed 25 yards.
(4) The targets will be scored, but the scores shall not be recorded.
(5) Authorizing Officials shall maintain records of officers who participate in this training.
F. Precision Shooting (Counter Sniper) Firearms Training.
(1) Acting through the National Firearms Unit, the Border Patrol Tactical Team (BORTAC) shall be responsible for overseeing all Precision Shooting (Counter Sniper) training for all Special Units in INS Enforcement and Inspections programs.
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(2) The BORTAC unit is responsible for developing the Service's Precision Shooting lesson plans in accordance with INS training policies, and obtaining approval for the lesson plans from the Director of Training, the National Firearms Unit, and the Firearms Review Board.
G. Distribution of Information to the Firearms Instructors.
Whenever practical, information shall be sent to Firearms Control
Officers and Firearms Instructors through official channels. However, since observance of the chain-of-command is impractical when it pertains to safety alerts, FCO's and Firearms Instructors shall receive these directly from the National Firearms Unit.
24. FIREARMS QUALIFICATIONS
A. Proficiency Requirement.
(1) An acceptable level of proficiency is based on all of the following:
(a) Successful completion of the appropriate INS qualification or familiarization course of fire.
(i) For those firearms for which a qualification course has been established, achieving at least the minimum numerical score;
(ii) For those firearms for which no qualification course has been established, completion of the familiarization course of fire;
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(b) Demonstrating proper handling techniques and manual dexterity required to holster and unholster (if applicable), load, unload, and operate the firearm;
(c) Demonstrating safe handling of the firearm and ammunition;
(d) Demonstrating appropriate responses to the failure or malfunction of firearms or ammunition, including immediate action drills and safe unloading procedures.
(2) Quarterly firearms qualifications and familiarization sessions shall be conducted in advance of the quarter for which the officer is granted authorization to carry a firearm. Revocations of authorization for failure to qualify may only be made in accordance with Subsections 6.F., 24.C., 24.D., and 24.F.
(3) Service officers in a position listed in Subsection 5.A.(1)—(8), including Headquarters, Regional, District, Sector and Academy staff officers who are authorized to carry handguns shall be required to demonstrate their proficiency in the use of the handgun on a quarterly basis. Officers who fail to meet this requirement shall be provided remedial training in accordance with Subsection 23.C.
(a) Service officers who are authorized to carry both a revolver and a semi-automatic pistol must qualify with both types of handguns due to their significant functional differences.
(b) An officer who qualifies with any Service-issued or approved revolver shall be authorized to carry any other Service-issued or approved revolver.
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(c) Because of the similarity in the mechanical functioning and safety features, Service officers who are authorized to carry two Service-approved double-action-only semi-automatic pistols are not required to qualify with both pistols. Likewise, officers who are authorized to carry two Service-approved decocker type semi-automatic pistols are not required to qualify with both pistols. However, officers carrying a mixture of the two types of semi-automatic pistols are required to qualify with both.
(4) Service officers, including Headquarters, Regional, District, Sector and Academy staff officers, who are authorized to carry firearms other than handguns shall, on a quarterly basis, be required to demonstrate their proficiency with each such type of firearm in order to carry the firearm. Officers who fail to demonstrate proficiency with any type of firearm shall not be issued or allowed to carry that type of firearm until such time as the officer demonstrates proficiency in the use of that type of firearm.
(a) Where the operating characteristics of Service longarms are different, officers authorized to carry such longarms shall qualify quarterly with each different type of longarm.
B. Firearms Qualification Courses.
(1) Only those qualification and familiarization courses that have been approved by the Firearms Review Board shall be used in determining firearms proficiency of INS officers.
(2) No portion or stage of any firearms qualification or familiarization course may be waived or altered.
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(3) Officers, including Basic Trainees, who are unable to assume a required firing position because of a limited range of physical movement shall be allowed to utilize a safe adaptive shooting stance. Firearms Instructors shall work with these officers to develop an appropriate stance.
(4) The successful completion of a firearms qualification course will not be based upon scoring of individual phases of the course, but rather the total scoring of the course.
C. Revocation of Authorization to Carry a Firearm Due to Inability to Demonstrate Acceptable Proficiency.
(1) Unless one of the exceptions in Subsection 24 applies, in instances where a Service officer has been provided remedial training in accordance with Subsection 23.C. and remains unable to demonstrate acceptable proficiency with a handgun, the Authorizing Official shall provide the officer with written notice of revocation of the officer's authorization to carry the handgun. The revocation shall apply to the carrying of the handgun during duty and non-duty hours, regardless of whether the handgun is Service-issued or Service-approved, personally-owned. If the handgun is Service-issued, the Authorizing Official shall require the Service officer to turn it in. The officer shall not be assigned to duties that normally require the carrying of a handgun.
(2) In instances where a Service officer is unable to demonstrate the required level of proficiency with a longarm and authority to carry is revoked, the officer shall not be assigned to duties that normally require the carrying of a longarm. However, if the officer is qualified to carry a handgun and is assignable to duties where the carrying of a longarm is not required, the officer may be assigned to those duties.
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(3) In accordance with Subsection 23.C., in instances where the carrying of a firearm is required as described in Subsection 6.B., officers in a position listed in Subsection 5.A.(1)—(8) who, following remedial training, are unable to demonstrate acceptable proficiency with the firearm may be subject to reassignment or removal.
D. Revocation of Authorization to Carry a Firearm Due to Non-Participation in Quarterly Firearms Qualifications.
(1) In instances where a Service officer does not participate in the required quarterly firearms qualification, and is not eligible for an authorized absence as defined below, the Authorizing Official shall revoke the officer's authorization to carry a firearm until the officer successfully demonstrates the required level of proficiency. However, the Authorizing Official shall excuse a Service officer from the quarterly requirement to qualify where the officer is unable to participate in qualifications due to an authorized absence. Except as provided in Subsection 24.F., officers shall not be excused from the requirement to qualify for more than two consecutive quarters. An authorized absence includes a detail away from an officer's official duty station, any type of approved leave, or compensatory time off. Officers who are excused under these circumstances may continue to carry a firearm. Make-up qualifications should be scheduled in the same quarter as the regular qualification. Officers who are unable to attend a make-up qualification due to an excused absence shall be excused from the requirement to qualify for that quarter.
(2) If an officer does not participate in the required quarterly firearms qualification for two consecutive quarters, the Authorizing Official shall revoke the officer's authority to carry a firearm. In the case of handguns, the Service officer shall be required to surrender his or her Service-issued handgun or Service authorization letter for a personally-owned handgun. The officer shall be re-issued his or her Service handgun, or letter of authorization, upon qualifying and demonstrating proficiency. The officer shall be provided a written notice at least five working days prior to such revocation.
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E. Firearms Qualification of Detailed Officers.
(1) In instances where a Service officer is detailed to another duty station and will miss the quarterly firearms qualification at his or her permanent duty station, the officer shall notify supervisory or management officials at the temporary duty station of his or her need to qualify during that quarter.
(2) If the detailed Service officer is performing duties that normally require the carrying of a firearm, the Authorizing Official who is responsible for the officer's temporary duty station shall make reasonable efforts to provide the means and the opportunity for the officer to qualify during the quarter.
(3) If the detailed Service officer is performing duties that are routinely performed by officers who do not carry a firearm, the officer may be exempted from the requirement to qualify until he or she returns to his or her permanent duty station.
F. Officers Unable to Qualify Due to a Temporary Physical Condition.
(1) A Service officer may be granted an exception to Subsection 24.A.(1)(a), i.e., passing the quarterly firearms qualification with a handgun, due to a temporary physical condition which affects the officer's ability to qualify or makes it inadvisable to require the officer to qualify, but does not affect the officer's ability to properly utilize a handgun. Accordingly, an officer granted such an exception is excused from participating in quarterly qualifications for the period for which the exception is granted. A temporary physical condition may be caused by injury, surgery, illness or pregnancy, and normally will not exceed 180 days. On a case-by-case basis, extensions may be granted. Under no circumstances will an exception be granted for more than 270 days.
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(2) An exception shall not be granted for non-physical conditions or mental trauma related to mental illness deemed by a mental health professional to adversely affect the officer's judgment regarding the use of deadly force. Such mental disability shall require immediate revocation of authority to carry a firearm.
(3) Officers granted an exception must be able, at any time, to demonstrate an acceptable level of proficiency with the requirements listed in Subsection 24.A.(1)(b)—(d).
(4) Officers requesting an exception must provide the Authorizing Official with a written doctor's recommendation. The recommendation must describe the nature of the disability and the anticipated duration of the disability.
(5) The Authorizing Official's decision regarding the granting of an exception and the duration thereof shall be based on all available relevant information. Such information may include the medical documentation submitted by the officer, records of the officer's prior firearms qualifications and the recommendations of the Firearms Instructor(s) and supervisory personnel.
(6) The authority to grant exceptions is limited to Authorizing Officials.
(7) Service officers granted an exception from qualifying quarterly shall receive a written authorization to continue carrying handgun(s). The written notice shall include a specific expiration date of the exception, and a description of the handgun(s) the officer is authorized to carry.
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(8) Officers shall qualify within 30 days of the expiration of the exception.
G. Requirement to Qualify with Duty or Hazard-Free Ammunition.
The ammunition used for the qualification course shall be duty or hazard-free ammunition, unless the use of that ammunition is specifically prohibited due to range or other limitations, or a safety-related firearm or ammunition problem is discovered. Authorizing Officials will notify the National Firearms Unit in writing of such problems, prohibitions, or limitations.
H. Requirement to Use a Hip Holster During Quarterly Qualification and Live-Fire Training.
(1) Due to safety considerations, officers engaged in quarterly firearms qualifications, supervised live-fire practice or training shall be required to use a belt-mounted, direct-draw hip holster, with the holster on the officer's ''strong side.'' The holster shall be equipped in accordance with Subsection 19.B.
(2) No live-fire training, including tactical training, shall be allowed with any holster type other than described in Subsection 24.H.(1) unless supervised one-on-one by a Firearms Instructor or Range Safety Officer.
I. Use of a Holster That is Not a Hip Holster.
(1) In conjunction with the quarterly firearms qualification, officers who normally carry the handgun in another type of holster shall be required to demonstrate their ability to quickly and safely draw an unloaded handgun, engage a target, and reholster the handgun.
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(2) These exercises should be developed locally by the Firearms Instructor, and shall be sufficient to make a reasonable determination of the officer's ability to safely use the holster.
(3) Immediately prior to conducting any dry-fire exercise, the Firearms Instructor shall inspect each Service officer's handgun to ensure it is unloaded and safe to use.
(4) Officers utilizing other than hip-mounted holsters should be made aware of potential problems regarding retention of their holstered handguns during an encounter with an assailant or other vigorous physical activity.
(5) In any instance where the Firearms Instructor determines that an individual Service officer who uses a holster other than a hip-mounted holster is unable to demonstrate the ability to quickly and safely draw and reholster the handgun, the Firearms Instructor will advise the individual officer that the holster is unsafe or impractical for use. In these instances, the Firearms Instructor shall also prepare a memorandum to notify the Authorizing Official of the potentially unsafe or impractical use of the holster by the officer. The Authorizing Official shall prohibit the individual officer from using the holster.
J. Record of Quarterly Qualifications.
(1) Promptly following each qualification, quarterly qualifications data shall be entered into the AMIS/FIM. Using the AMIS/FM, a printed copy of the Form G—109, Record of Qualifications shall be generated. Firearms Instructors shall furnish a completed Form G—109 to the Authorizing Officer for each type of firearm authorized for use in that location. The form shall list each officer by name, title, duty station, the last four digits of his or her Social Security number, and the officer's score with each type of firearm. The Form G—109 shall clearly indicate the make, model, and serial number of each firearm. The Form G—109 shall be certified to be correct by a Firearms Instructor.
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(2) The Authorizing Official, or a supervisory or management official, shall review the Form G—109 and direct further training for those officers who did not achieve a qualifying score
or are otherwise unable to demonstrate an acceptable level of proficiency. Upon completing the review, the Form G—109 for each location shall be signed by the Authorizing Official and retained for three years.
(3) A copy of the Form G—109 with the signed certification shall also be sent to the National Firearms Unit, where it shall be retained indefinitely.
K. Conducting Quarterly Qualifications.
(1) Failure of any officer to comply with safety instructions during quarterly qualifications may result in the removal of the officer from the range for that day by the Firearms Instructor or the Range Safety Officer.
(2) Quarterly qualifications shall be conducted with a minimum ratio of one Firearms Instructor or Range Safety Officer for every six officers on the firing line.
(3) Any officer who sees any condition that is unsafe or life threatening should immediately call ''CEASE FIRE'' in a voice that can be heard by all shooters.
(4) At their discretion Firearms Instructors may conduct the qualifications using a Hot Range or Cold Range. A Hot Range requires shooters to reload without command at the end of each string of fire unless instructed otherwise. Failure to reload prior to starting the next string of fire will not be an alibi. A Cold Range requires that the Firearms Instructor provide commands for loading and reloading.
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(5) Shooters are to keep their fingers outside the trigger guard unless they are ready to fire. Shooters should not anticipate the command to fire. All shooters shall stop firing immediately when the ''CEASE FIRE'' command is given.
(6) Shooters are to keep their firearm(s) holstered, slung, or pointed in a safe direction downrange at all times.
(7) The Ready Pistol, Ready Rifle, or Ready Shotgun position is 45 degrees down from the horizontal with the muzzle pointed down range.
(8) Shooters shall not move forward of the firing line unless instructed to do so by the Firearms Instructor. If a shooter drops any item, including a firearm, cartridge, magazine, or speedloader, the shooter shall not pick the item up until the Firearms Instructor instructs the shooter to do so. Once on the firing line, shooters shall stay in place and not move away from the firing line unless instructed to do so by the Firearms Instructor. Shooters must be prepared by having all necessary equipment with them when on the firing line. Firearms Instructors shall ensure that all shooters are given clear instructions regarding all required equipment prior to instructing them to go to the firing line.
(9) All loading and reloading shall be done on the firing line and will be done from speedloaders, magazines, speed loops, dump pouches or from the pocket(s). All loose ammunition must be carried in pockets or other carriers. No ammunition boxes or other unauthorized paraphernalia will be allowed on the firing line.
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(10) All officers shall be issued eye and ear protection for use at all times while on the range when shooting is in progress. At their discretion, shooters may wear both ear plugs and protective ear muffs simultaneously.
(11) All officers shall write their full name and date on their target.
(12) Targets will be scored by a Firearms Instructor or Range Safety Officer. No officer will score his or her own target. The scoring officer will mark the score on the target and sign his or her name next to the score. Any disagreements will immediately be referred to the Senior Firearms Instructor for review. The decision of the Senior Firearms Instructor is final.
(13) Officers are required to fire the number of rounds specified in the qualification course in the required time frames. Alibis are not allowed for failure to fire all rounds during the time allotted unless there is a mechanical failure of the firearm, ammunition malfunction, or other circumstances beyond the control of the officer.
(14) Alibis will be granted solely in the case of mechanical failure of the firearm, ammunition malfunction, or other circumstances beyond the control of the officer.
L. Marksmanship Awards Program.
(1) A $200.00 cash incentive award will be given to the officer who has demonstrated the most improvement in firearms skills in each basic Academy class. This determination shall be made by the INS Firearms Coordinator for the class.
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(2) Every January, each Authorizing Official shall give a $200.00 cash incentive award to the officer in each District and Sector with the greatest increase in total score in handgun qualifications for the four consecutive quarters of the previous Fiscal Year as compared to the year before.
(3) Concurrent with the issuance of the Commissioner's Annual Awards, the twenty INS officers having the highest total score for the preceding Fiscal Year shall be awarded a plaque recognizing them as one of the ''Commissioner's Twenty.'' This determination shall be based upon a review of field office Forms G—109 by the National Firearms Unit. The National Firearms Unit shall be responsible for the preparation and delivery of the plaques.
25. SERVICE ARMORY OPERATIONS
A. The National Firearms Unit is responsible for overseeing all Service Armory operations. Service Armory operations include repairs and modifications of Service firearms, acquisition of replacement parts and repair equipment, storage and issuance of Service firearms and parts, and disposal of excess Service firearms.
B. Service-owned firearms needing repair or modification shall be sent to the Service Armory at the National Firearms Unit. Service-approved, personally-owned firearms needing repair or modification may also be sent to the Service Armory. Firearms will not be sent to Glynco for repair or modification, nor will firearms component parts be shipped to Glynco for assembly.
C. Training Specialist/Armorer(s) assigned to the Training Division shall conduct repairs to training firearms assigned to the Service Academies, those handguns issued to Basic Trainee officers while at the Academies, and those Service-issued or approved handguns issued to detailed instructors or Academy Training staff.
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D. The National Firearms Unit shall oversee the Field Armorer Program. This program will provide limited armorer training to Firearms Instructors, and certify that they have completed the necessary training to perform certain minor repairs on Service-approved or issued firearms. Firearms Instructors will be taught which repairs they are authorized to perform to ensure that Service firearms are in proper working order. Firearms Instructors Service-wide shall be trained through this program.
E. Parts, tools and on-going training for Training Specialists/Armorers will be provided by the National Firearms Unit.
F. Service Armorers at the National Firearms Unit shall inspect all new firearms received from vendors and all firearms shipped in for repair or re-issuance. Appropriate action shall be taken immediately when a firearm does not meet Service standards.
26. SHIPMENT OF FIREARMS FOR REPAIR
A. Firearms needing repair shall be processed into the AMIS/FIM in accordance with the INS Personal Property Operations Handbook, Chapter 21, and shipped via registered U.S. Mail, the Service's current contract delivery service, or bonded motor freight company to the Service Armory in accordance with the instructions in this Subsection.
(1) The shipping office will tag each firearm to indicate the location code and name of the officer to whom it is issued or belongs, and a brief description of the problem or necessary repair.
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(2) All firearms forwarded for repair shall be listed on a Form G—504, Report of Property Shipped-Received, generated utilizing the AMIS/FIM. The office shipping the firearm (consignor) will make three copies of the Form G—504.
(a) The original Form G—504 shall be mailed to the Service Armory and a copy enclosed with the firearms shipment. A copy will also be retained by the shipping office.
(b) Upon receipt of the firearm, the Service Armory will return a signed copy of the Form G—504 to the shipping office.
(c) Upon completion of repairs, the Service Armory will return the original Form G—504, including the armorer's repair comments, with the repaired firearm to the shipping office.
(d) A copy of the Form G—504, also containing the armorer's repair comments, will be placed in the individual firearm file maintained by the Service Armory.
(3) When the Service Armory receives a firearm which is not repairable, the armorer shall notate the original Form G—504 and immediately return the form to the shipping office.
(a) The Service Armory will retain for disposal any Service-owned firearm which cannot be repaired or is unserviceable and will issue a replacement firearm on a separate Form G—504.
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(b) The shipping office shall ensure that the non-repairable firearm is removed from the property card of the officer to whom it was assigned and add the replacement firearm in its place.
(c) The shipping office notate on the Form G—571 that the firearm was retained by the Service Armory as non-repairable.
(d) The Service Armory shall return any unserviceable, non-repairable personally-owned firearms to the owner as soon as possible, along with a written notice describing the reasons. A copy of the notice will be forwarded to the Authorizing Official with instructions to withdraw the authorization to carry the unserviceable personally-owned handgun. A replacement firearm will be sent from the NFU to the shipping office.
27. MAINTENANCE AND REPAIRS OF FIREARMS
A. Repairs or modifications to Service-approved, personally-owned handguns shall be made only by the Service Armory, the original manufacturer, or by a local factory-authorized gunsmith.
B. Certain minor repairs and/or modifications will be authorized by the National Firearms Unit to be performed by Firearms Instructors who are provided armorer training conducted or approved by the National Firearms Unit.
C. Detailed disassembly of Service-issued firearms beyond the major components described in operator or instruction manuals provided by the National Firearms Unit by personnel other than Service Armorers or the original manufacturer is not authorized.
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D. If a Service-issued or approved firearm is damaged in firing and/or indicates signs of excessive pressures or component failure, the firearm, all damaged components and the ammunition used shall be sent to the Service Armory along with a description of the circumstances. In the case of a personally-owned handgun, the officer shall indicate whether or not he or she wants the Service Armory to attempt to repair the firearm. All personally-owned handguns, regardless of their condition, shall be returned to the owner as soon as possible.
E. The Service Armory is authorized to repair Service-approved, personally-owned firearms that have been worn or damaged. Such repairs shall be provided at no cost to the Service officer.
F. The disposition of worn, unserviceable, or unsafe firearms is governed by Subsection 26.A.(3).
G. Modifications that officers are authorized to make to Service-issued or approved firearms are those external items that enhance shooting ability such as handgrips, sight adjustments. etc. Service-approved, personally-owned handguns may be equipped with tritium sights if properly installed.
H. Officers are responsible for normal cleaning and preventive maintenance of the Service firearms they use. Maintenance should only be done in accordance with the instructions provided by the National Firearms Unit or as described in the operator manuals for that particular firearm. Operator manuals shall be provided to all INS officers for all Service-owned and approved firearms that they are authorized to carry.
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28. AUTHORITY FOR SERVICE TRAINING SPECIALISTS/ARMORERS TO POSSESS SERVICE FIREARMS AT OTHER THAN GOVERNMENT-OWNED LOCATIONS.
A. In conjunction with their official duties, Service Training Specialists/Armorers will be authorized to possess Service firearms during duty hours at other than Government-owned locatons.
B. The official duties granting authority to possess Service firearms at other than Government locations to Service Training Specialists/Armorers shall be limited to transporting firearms, providing security for firearms, function-firing firearms sent in for evaluation or repair, conducting tests and evaluations of firearms, conducting field inspections of firearms, and conducting firearms training.
C. Firearms authorized for Service Training Specialists/Armorers are limited to those listed in Appendix 1(A—B).F.
D. In order to possess firearms in conjunction with their official duties, Training Specialists/Armorers must comply with this policy, including Subsection 3.E. pertaining to basic Marksmanship Instruction and Pratical Pistol Courses and 6.D. pertaining to demonstration of firearms proficiency. In addition, they must be Service-certified Firearms Instructors in compliance with Subsection 23.D.
E. Training Specialists/Armorers are not Immigration Officers and do not have the authority described in Section 287 of the Immigration and Nationality Act.
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F. The authority of Training Specialists/Armorers to possess firearms in conjunction with their official duties shall not extend to off-duty hours.
G. A memorandum granting this authority, signed by the Chairman of the Firearms Review Board and the Administrator of the National Firearms Unit, shall be provided to each Training Specialist/Armorer.
H. This authority be rescinded at any time as described in Subsection 6.F. when in the best interests of the Service.
29. FIREARMS PROGRAM FIEID (SITE) INSPECTIONS
A. The Office of Internal Audit, through the Field Assessment Program, shall review field office practices relating to the INS policy on firearms, firearms training, quarterly qualifications, reporting of incidents regarding firearms, the storage, transfer, and safekeeping of firearms and ammunition, and compliance with other requirements described in the INS Firearms Policy.
B. Field inspections shall also be conducted by Service Armorers on a periodic basis to ensure compliance with the Firearms Policy and provide an assessment of the overall condition of Service firearms and ammunition in the field. In addition, an inspection will be conducted of firearms storage facilities in INS field offices.
C. In cases of non-compliance, corrective actions, including imposition of disciplinary action, if warranted, shall immediately be initiated.
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D. Guidance for field inspections will be jointly developed and issued by the National Firearms Unit and the Office of Internal Audit. This guidance will be developed with the active participation of field office representatives and both Union Councils and shall supplement this subsection.
30. FIREARMS INSPECTION AT FIELD (SITE) LOCATIONS
A. Firearms Instructors or Range Safety Officers shall inspect each Service officer's handgun for overall condition and function at each quarterly qualification and record the results on Form G—109. In addition, Firearms Instructors shall inspect the handgun(s) of each Service officer who enters on duty at a new location, and conduct a similar inspection when a handgun is issued, exchanged, or turned in. Appropriate action shall be taken immediately when the handgun does not meet Service standards.
B. Written reports of inspection shall be made by the Firearms Instructor or Range Safety Officer to the Authorizing Official in all cases where a revolver mainspring appears to have been lightened or weakened, or where there is any evidence of tampering, abuse or mechanical failure. These reports shall be forwarded to the Service Armory at the National Firearms Unit.
C. Firearms Instructors shall periodically inspect Service longarms assigned to INS offices.
D. Service officers will be provided with the appropriate training, proper equipment, and duty time to properly care for Service-issued or authorized firearms.
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E. Service officers who are provided adequate training, equipment and duty time to property care for Service-issued firearms and fail to do so may be subject to disciplinary action. Service officers who are provided adequate training, equipment and duty time to properly care for Service-approved, personally-owned firearms and fail to do so may have their letter of authorization revoked.
F. Any firearm that fails to pass a safety inspection shall not be used until properly repaired. Service-issued firearms that fail to pass the safety inspection shall be turned in for repairs by the Firearms Instructor. Service-approved, personally-owned handguns that fail to pass the safety inspection shall be repaired by the National Firearms Unit, the original manufacturer, or a factory-authorized gunsmith, at the option of the officer. In either case, a Service-issued firearm of the same type will be temporarily issued to the officer for qualifications and use.
31. AUTHORIZED LEVELS OF FIREARMS RESERVES
A. Based on a survey of Enforcement and Inspections programs and field requirements, the National Firearms Unit will develop the Service's Table of Equipment (TOE) for approved levels of firearms. This TOE will be used as a guideline for firearms reserves at all INS offices and field locations.
B. The number of Service-owned handguns authorized to be retained in reserve in the field shall not be less than two per District or Sector, plus an additional amount not to exceed 5% of the assigned officer force. The number of Service-owned handguns authorized to be retained in reserve at the NFU shall be 10% of the total officer force.
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C. Handguns in excess of the allowable reserve shall be shipped promptly, on a continuing basis, to the Service Armory for retention and reissue within the purchasing program.
32. TRANSFERS OF SERVICE-ISSUED FIREARMS
A. When an officer is transferred to a new duty station and remains within the same program element, the originally issued handgun shall be retained by the officer.
B. The property card of a transferring officer will be sent separately to the new duty location. An attached Form G—504 shall be used to document the transfer of the property card.
C. When an officer is transferred to another program, his or her issued firearm must be returned to the issuing program.
D. The Authorizing Official shall ensure that each acquisition, disposal, issuance, retrieval or transfer of a firearm is documented in accordance with guidelines contained in this policy. All such transactions shall immediately be entered in the Asset Management Information System, Firearms Inventory Module (AMIS/FIM) by the Firearms Control Officer or his or her designee.
33. STORAGE AND MAINTENANCE OF FIREARMS, AMMUNITION, AND RELATED EQUIPMENT
A. Each Service officer who is authorized to carry a firearm is responsible for taking reasonable measures to ensure the safe storage, general care and maintenance of his or her issued firearm(s) and ammunition.
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B. Offices shall be equipped with a sufficient number of individual secure gun lockers for the storage of each officer's firearm(s), ammunition and related equipment. Pending the availability of individual secure gun lockers, officers' firearm(s) should be secured in a locked container when not in use.
C. The Service shall provide locking security devices to secure shoulder weapons in all appropriate vehicles. If no such device is available, unattended shoulder weapons must be locked in the trunk of the vehicle or otherwise secured. Even if secured, Service-owned firearms shall not be left unattended in vehicles for extended periods of time unless there is no feasible alternative.
D. While off-duty, officers shall not leave Service-owned firearms in unattended vehicles unless the firearm is locked in the trunk of the vehicle or other secure area such as a locked glove box inside a locked vehicle.
E. All unissued, unattended Service, firearms, and ammunition shall be stored in locked firearms storage vaults or safes in a secure area. Unissued Service ammunition shall be kept in a cool, dry environment, and be rotated periodically. Unissued firearms shall be stored in a dry environment and shall not be stored in wall lockers, closets, or in other unsecured, unattended areas of Service facilities.
F. The Authorizing Official shall restrict access to unissued firearms to an individual officer designated as the Firearms Control Officer (FCO) in accordance with Subsection 4.G. Security controls shall not prevent emergency access by other authorized personnel.
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G. The Authorizing Official shall restrict access to unissued ammunition to an individual officer designated as the Ammunition Control Officer (ACO) in accordance with Subsection 4.H. Security controls shall not prevent emergency access by other authorized personnel.
34. SEIZED FIREARMS
A. The Bureau of Alcohol, Tobacco, and Firearms (BATF) shall be notified when a weapon is seized by the Service. This shall be accomplished by submission of BATF Form 1850.25. BATF shall be notified that the INS shall retain custody of all seized weapons.
B. All firearms seized by the Service shall also be entered into the National Crime Information Center (NCIC) as having been seized by the Service. Offices entering this data are responsible for updating and/or canceling these entries as appropriate.
C. Upon completion of pending litigation or forfeiture proceedings, all seized or abandoned firearms shall be sent to the National Firearms Unit as soon as possible. This transfer shall be accomplished on a Form G—504 which identifies the previous owner/bearer of the firearm, case number, and any other pertinent information. A copy of the BATF Form 1850.25 shall be attached to the Form G—504.
D. Districts or Sectors may request authorization for locally-seized firearms to be returned for display purposes. The request must be approved in writing by the appropriate Assistant Commissioner and the Firearms Review Board.
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E. Firearms which are approved for display purposes shall be destroyed by the National Firearms Unit and listed as such in the Asset Management Information System, Firearms Inventory Module. The destruction will be accomplished in such a manner as to not detract from the firearm's use in a display.
35. FIREARMS AND AMMUNITION ACQUISITIONS
A. The National Firearms Unit is responsible for acquiring all firearms and ammunition for the INS. Except for the personal purchase of Service authorized handguns, no Service program or individual officer or employee, other than the National Firearms Unit, is authorized to solicit, accept or otherwise acquire firearms or ammunition for any Service-related purpose. This includes arranging loan and transfer of firearms from any unit of the Department of Defense, or other organizations and agencies, commercial firearms manufacturers, distributors, dealers, or any other source. The National Firearms Unit is the only entry or exit point for all firearms in the INS inventory.
B. The establishment of INS ammunition contracts, and the acquisition of ammunition for each program, shall be coordinated by the National Firearms Unit.
C. Firearms may not be acquired through seizure, forfeiture or abandonment except through the National Firearms Unit.
36. LOST OR STOLEN SERVICE FIREARMS
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A. Lost or stolen Service-owned firearms shall be reported to a supervisor as soon as practicable upon discovering the loss. In addition, the officer reporting the loss shall submit a report through channels to the Authorizing Official describing the circumstances surrounding the loss within 48 hours of the discovery. Extensions may be granted consistent with the Collective Bargaining Agreement.
B. The Authorizing Official, or a member of his or her staff, shall notify the local law enforcement authorities and the local Office of the Federal Bureau of Investigation (FBI) of the loss or theft of a firearm as soon as possible. The FBI should be requested to enter the missing firearm into the National Crime Information Center (NCIC) as soon as possible. The Authorizing Official shall initiate an administrative inquiry into the loss or theft of a Service-owned firearm.
C. When a Service-owned firearm is lost or stolen, a Form G—504 shall be prepared and forwarded to the National Firearms Unit for updating the Asset Management Information Systems, Firearms Inventory Module. A copy of all memorandums or reports related to the loss or theft of the firearm shall be attached to the Form G—504.
D. When a Service-owned firearm is lost or stolen, a Regional Board of Survey may be conducted in accordance with applicable property management regulations. A copy of the results of the Board of Survey shall be forwarded to the National Firearms Unit for updating of the AMIS/FIM.
37. ASSET MANAGEMENT INFORMATION SYSTEM, FIREARMS INVENTORY MODULE (AMIS/FIM)
A. The INS Asset Management Information System, Firearms Inventory Module is a main-frame computer-based system created to assist Service managers in the administration and control of the INS firearms inventory. The National Firearms Unit shall be responsible for maintaining the AMIS/FIM, entering information into the system about Service-issued or approved firearms, and tracking the transfer of firearms within the Service. Information concerning the acquisition, disposition, or transfer of firearms shall be reported to the National Firearms Unit using the Form G—504.
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B. Authorizing Officials are responsible for conducting physical inventories of firearms biennially in accordance with the Justice Property Management Regulations (JPMR) under Section 128—1.5202.
C. In accordance with Subsection 4.G., Authorizing Officials shall designate an Assistant Chief, an appropriate Assistant District Director, or other appropriate senior management official as the Firearms Control Officer with primary responsibility for the overall inventory control, maintenance, and security of Service firearms.
D. Copies of the physical inventory report shall contain certifications by the actual personnel performing the physical inventory at each location. Copies shall be retained at the District, Sector, Region, Service Academy, Service Armory, and Headquarters levels for reference, should inventory discrepancies arise.
E. Boards of Survey shall be conducted in accordance with applicable property management regulations on any inventory discrepancies. A copy of the result of the Board of Survey shall be forwarded to the National Firearms Unit for updating of the AMIS/FIM.
38. FIREARMS SAFETY
A. Firearms safety rules are designed to prevent injury to innocent persons or property and to protect the officer from mental trauma and/or legal action resulting from unintentional injury to persons or property. Each officer is directly responsible for the safe handling and storage of his firearms including, but not limited to, the following:
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(1) Service officers shall always inspect firearms for live ammunition when picked up or received from another person.
(2) Service officers shall not knowingly accept a cocked weapon.
(3) Service officers shall not cock a loaded firearm or place their fingers on the trigger unless they are intending to immediately discharge the weapon.
(4) Except for training exercises under strictly controlled conditions involving unloaded firearms, Service officers shall not point a weapon, loaded or unloaded, at anyone or anything, unless intending to discharge the weapon.
(5) Service officers shall not leave a loaded, unsecured firearm unattended at any time.
(6) Firearms shall be unloaded before cleaning.
(7) Dry-fire shall be conducted after a careful inspection of the firearm, and in an appropriate location.
(8) If while firing, the officer notices a weak, or excessively heavy recoil, or hears or feels an unusual blast, he or she shall immediately cease fire. Officers should keep the firearm pointed down range, wait several seconds, unload and inspect the firearm for damage or barrel obstruction.
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(9) When stored in the home, reasonable and prudent measures shall be taken to secure Service firearms and ammunition from access by children or other family members.
(10) Only authorized persons, as determined by an Authorizing Official, are permitted to use Service firing ranges. During qualifications or training on the firing range, firearms shall not be dry-fired except on the firing line, and then only as directed by the Firearms Instructor or Range Safety Officer.
(11) Service officers should carefully inspect firearms prior to going on duty.
(12) Longarms should not be carried in a vehicle with a round in the chamber. The recommended condition for carrying longarms is with the magazine loaded, the chamber empty, the safety off and the weapon uncocked.
(13) Service officers are responsible for wearing eye and hearing protection when firing weapons. The Service shall issue each officer Service approved eye and hearing protection, and shall maintain sufficient quantities of such items at each Service range.
APPENDIX 1A
List of INS Authorized Firearms (Prior to the Effective Date of this Policy)
NOTE: No new authorization for any handgun listed exclusively in this appendix shall be granted after the effective date of this policy.
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Service officers are limited to carrying the firearms listed for each program and job category as follows:
A. All Service officers listed under Subsection 5.A.(1)—(8) are authorized to carry the following handguns:
(1) Smith & Wesson .357 Magnum revolvers.
(2) Ruger .357 Magnum revolvers.
(3) Colt .357 Magnum revolvers.
(4) Glock 17, 19 and 21 pistols.
(5) SIG-Sauer P220, P225, P226 pistols.
(6) Heckler & Kock P7 M8 and M14.
(7) Walther P5 and P88.
B. The following classes of officers are also authorized to carry the Remington 870 Police shotgun:
(1) Border Patrol Agents, including Border Patrol Aircraft Pilots.
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(2) Special Agents, including Special Agents Assigned to Sector Anti-smuggling Units and Immigration Agents.
(3) Deportation Officers.
(4) Detention Enforcement Officers.
(5) Immigration Inspectors.
C. The following classes of officers are also authorized to carry the M—14 rifle or the Heckler and Koch MP5A2/A3 SMG or Colt SMG:
(1) Border Patrol Agents, including Border Patrol Aircraft Pilots.
D. The following classes of officers are also authorized to carry the Colt AR—15A1/A2 rifle or the M16A1/A2 automatic weapon:
(1) Border Patrol Agents, including Border Patrol Aircraft Pilots.
(2) Investigations Division, Specialized Tactical Team (STT) members.
(3) Detention and Deportation Tactical Innovation and Control Team (TIAC) members.
E. The following classes of officers are also authorized to carry special weapons:
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(1) Investigations Division, Specialized Tactical Teams (STT).
(2) Border Patrol Division, Sector Emergency Response Teams (SERT) members.
(3) Border Patrol Tactical Team (BORTAC) members.
(a) Special weapons for those officers listed in E.(1) are limited to the following weapons:
(i) Remington 700—P bolt-action rifle.
(ii) Remington M40 XBKS bolt-action rifle.
(iii) Steyr SSG bolt-action rifle.
(iv) Gas launcher, Model M79.
(v) Gas launcher, 37mm.
(b) Special weapons for those officers listed in Appendix 1A.E.(2) include all weapons listed above, as well as the Remington 870 short-barreled shotgun with pistol grips.
(c) Special weapons for those officers listed in Appendix 1A.E.(3) include all weapons listed above, as well as the Heckler and Koch HK33A2 or 53A2/A3 rifle and the M203 gas launcher.
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F. Service personnel employed as Training Specialists/Armorers assigned to the National Firearms Unit, may, while on duty and in conjunction with their official duties, possess, transport, maintain, or use, for the purpose of repairing, testing or evaluating, any firearm, either in the Service inventory, or under consideration by the Service for adoption or acquisition. This authority also extends to the Service personnel who are employed as the Administrator, Deputy Administrator, or an Assistant Administrator of the National Firearms Unit.
G. Service personnel employed as Training Specialists/Armorers assigned to the Service Academies, may, while on duty and in conjunction with their official duties, possess, transport, maintain, or use, for the purpose of repairing any firearm in the Service inventory.
H. Service officers, regardless of their job classification series or working title, currently assigned the collateral duty of Firearms Instructor, may, at the discretion of the Authorizing Official, when in the performance of their official duties as a Firearms Instructor, for training purposes only, possess, transport, maintain, or use, any firearm in the Service inventory.
(1) This authorization is specifically intended to allow Authorizing Officials the discretion of permitting Firearms Instructors to train and practice with all firearms used by Service personnel in order to permit the Firearms Instructor to develop and retain a higher than normal level of performance with the firearm, and to ensure the Firearms Instructor's personal competence to provide instruction to other officers with all firearms those officers may be authorized to carry.
I. Barrel Length of Service-issued Revolvers:
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(1) Title and barrel length:
Border Patrol Agents--4-inch barrel.
BP Aircraft Pilots--3-inch barrel.
Special Agents--3-inch barrel.
Immigration Agents--3-inch barrel.
Deportation Officers--3 or 4-inch barrel.
Detention Officers--3 or 4-inch barrel.
Immigration Inspectors--3 or 4-inch barrel.
Immigration Examiners--3 or 4-inch barrel.
(2) Revolvers with other barrel lengths, not to exceed 4-inches, may be temporarily issued to officers conducting functions in which their assigned firearm is not appropriate. For example, a Border Patrol Agent may be issued a 3-inch barrel revolver for plain clothes assignments.
J. Barrel Length of Service-Authorized Revolvers:
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(1) Minimum barrel length--1.75 inches.
(2) Maximum barrel length--4 inches.
APPENDIX 1B
List of INS Authorized Firearms
(After the Effective Date of This Policy)
NOTE: New handgun authorizations approved after the effective date of this policy are limited to those handguns listed below in accordance with Subsection 16.
This list of authorized firearms shall be amended periodically by the National Firearms Unit.
A. All Service officers listed under Subsection 5.A.(1)—(8) are authorized to carry the following handguns:
(1) Beretta Model 96D Brigadier Service Pistol.
(2) SIG-Sauer P229 Double-Action-Only (DAO).
(3) Smith & Wesson .357 Magnum revolvers.
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(4) Ruger .357 Magnum revolvers.
(5) Colt .357 Magnum revolvers.
B. The following classes of officers are also authorized to carry the Remington 870 Police shotgun:
(1) Border Patrol Agents, including Border Patrol Aircraft Pilots.
(2) Special Agents, including Special Agents Assigned to Sector Anti-smuggling Units and Immigration Agents.
(3) Deportation Officers.
(4) Detention Enforcement Officers.
(5) Immigration Inspectors.
C. The following classes of officers are also authorized to carry the M—14 rifle or the Heckler and Koch MP5A2/A3 SMG or Colt SMG:
(1) Border Patrol Agents, including Border Patrol Aircraft Pilots.
D. The following classes of officers are also authorized to carry the Colt AR—15A1/A2 rifle or the M16A1/A2 or M4 automatic weapons:
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(1) Border Patrol Agents, including Border Patrol Aircraft Pilots.
(2) Investigations Division, Specialized Tactical Team (STT) members.
(3) Detention and Deportation Tactical Innovation and Control Team (TIAC) members.
E. The following classes of officers are also authorized to carry special weapons:
(1) Investigations Division, Specialized Tactical Teams (STT).
(2) Border Patrol Division, Sector Emergency Response Teams (SERT) members.
(3) Border Patrol Tactical Team (BORTAC) members.
(a) Special weapons for those officers listed in E.(1) are limited to the following weapons:
(i) Remington 700—P bolt-action rifle.
(ii) Remington M40 XBKS bolt-action rifle.
(iii) Steyr SSG bolt-action rifle.
(iv) Gas launcher, Model M79.
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(v) Gas launcher, 37mm.
(b) Special weapons for those officers listed in Appendix 1B.E.(2) include all weapons listed above, as well as the Remington 870 short-barreled shotgun with pistol grips.
(c) Special weapons for those officers listed in Appendix 1B.E.(3) include all weapons listed above, as well as the Heckler and Koch HK33A2 or 53A2/A3 rifle and the M203 gas launcher.
F. Service personnel employed as Training Specialists/Armorers assigned to the National Firearms Unit, may, while on duty and in conjunction with their official duties, possess, transport, maintain, or use, for the purpose of repairing, testing or evaluating, any firearm, either in the Service inventory, or under consideration by the Service for adoption or acquisition. This authority also extends to the Service personnel who are employed as the Administrator, Deputy Administrator, or an Assistant Administrator of the National Firearms Unit.
G. Service personnel employed as Training Specialists/Armorers assigned to the Service Academies, may, while on duty and in conjunction with their official duties, possess, transport, maintain, or use, for the purpose of repairing any firearm in the Service inventory.
H. Service officers, regardless of their job classification series or working title, currently assigned the collateral duty of Firearms Instructor, may, at the discretion of the Authorizing Official, when in the performance of their official duties as a Firearms Instructor, for training purposes only, possess, transport, maintain, or use, any firearm in the Service inventory.
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(1) This authorization is specifically intended to allow Authorizing Officials the discretion of permitting Firearms Instructors to train and practice with all firearms used by Service personnel in order to permit the Firearms Instructor to develop and retain a higher than normal level of performance with the firearm, and to ensure the Firearms Instructor's personal competence to provide instruction to other officers with all firearms those officers may be authorized to carry.
I. Barrel Length of Service-issued Revolvers:
(1) Title and barrel length:
Border Patrol Agents--4-inch barrel.
BP Aircraft Pilots--3-inch barrel.
Special Agents--3-inch barrel.
Immigration Agents--3-inch barrels.
Deportation Officers--3 or 4-inch barrel.
Detention Officers--3 or 4-inch barrel.
Immigration Inspectors--3 or 4-inch barrel.
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Immigration Examiners--3 or 4-inch barrel.
(2) Revolvers with other barrel lengths, not to exceed 4-inches, may be temporarily issued to officers conducting functions in which their assigned firearm is not appropriate. For example, a Border Patrol Agent may be issued a 3-inch barrel revolver for plain clothes assignments.
J. Barrel Length of Service-Authorized Revolvers:
(1) Minimum barrel length--1.75 inches.
(2) Maximum barrel length--4 inches.
APPENDIX 2
Notice to Service Officers of Personal Responsibility Under the INS Firearms Policy
As an INS Service Officer who is authorized to carry a firearm, you are required to comply with and be thoroughly familiar with all aspects of the INS Firearms Policy. You have been provided a complete copy of the INS Firearms Policy and have been given the opportunity to discuss the contents of this document with your supervisor or other management official. Due to the critical nature of certain aspects of the Firearms Policy, your attention is particularly directed to the following subsections:
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Subsection 6. Carrying Firearms--This subsection specifically requires that no officer shall be authorized to carry a firearm unless that officer has successfully completed Basic Marksmanship Instruction and Practical Pistol Courses as defined in Subsection 3 of the INS Firearms Policy, demonstrated proficiency, and is currently qualified with that particular firearm. It specifically limits the authorization to carry personally-owned firearms during duty hours and non-duty hours to designated Service-approved revolvers and semi-automatic pistols.
Subsection 7. Deadly Force Involving Firearms--This subsection contains policy and guidelines for the use of deadly force regarding firearms.
Subsections 11 and 12. Reporting and Investigation of Shooting Incidents--These subsections outline the notification, reporting, and investigative procedures following a shooting incident. Responsibilities and assignments for all involved INS Service Officers are contained in these subsections and Appendix 3.
By signing this statement, you acknowledge your possession of a copy of the INS Firearms Policy and your personal obligation to comply with all sections of the policy.
APPENDIX 3
Shooting Incident Reports
1. The Shooting Incident investigative report shall contain:
A. Cover sheet with table of contents;
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B. Authorizing Official's investigative report of the incident, including G—166;
C. Memorandum of incident from the supervisor on scene;
D. Transcripts or synopses of oral statements from Service officer(s) involved in the shooting;
E. Form G—725, Report of Assault on Service Employee;
F. Criminal history record check results (National Crime Information Center);
G. Photographs of scene;
H. Diagrams of scene;
I. Shooting data including distances of INS officers and assailants, number of rounds fired, etc.;
J. Detailed information pertaining to firearms and ammunition used including makes, models, types and numbers of firearms used, ammunition make and type used, performance of ammunition if known, etc.;
K. Statements of witnesses;
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L. Official reports from local investigating authority (e.g., FBI, Sheriff's Office, Police Department, etc.);
M. Medical reports; and,
N. Copies of printed and televised media reports of the incident.
2. Shooting incident investigations should be completed within days whenever possible. In the event that evidence critical to the investigation is not available within sixty days, updated status reports on open cases will be forwarded to the OIA.
APPENDIX 4
Guidelines for Use of Service Rifles and Automatic Weapons
I. The following guidelines for issuance of Service rifles and automatic weapons are provided for Authorizing Officials. This is based on information obtained from military units, other federal law enforcement agencies, manufacturers, and actual testing and is presented as an aid in clarifying appropriate usage.
A. 9mm or .40 S&W caliber weapons--9mm or .40 S&W caliber automatic weapons such as the Heckler and Koch MP5 or Colt SMG are suitable for close range, urban and rural situations. Notable characteristics are as follows:
(1) The maximum effective range is approximately 100 yards in the semi-automatic mode and 25 to 35 yards in the automatic mode.
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(2) These weapons are highly maneuverable. Their compact size is excellent for restricted movement in close quarters or dense vegetation.
(3) These weapons are concealable, unobtrusive, and easily transportable.
(4) These weapons possess quick pointing ability which allows rapid target acquisition.
(5) They are controllable with minimal muzzle rise using proper techniques.
B. Caliber .223 Weapons--.223 weapons, such as the M16, are suitable for short to medium range urban and rural situations. Notable characteristics are as follows:
(1) The maximum effective range is approximately 300 yards in the semi-automatic mode and 50 to 80 yards in the automatic mode.
(2) These weapons are effective for routine patrol duties because of their light weight, overall size, and mild recoil.
(3) These weapons have a relatively flat trajectory, and sighting adjustments are generally not needed under 200 yards.
(4) They are highly maneuverable and relatively compact.
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(5) They possess a quick pointing ability which allows relatively rapid target acquisition.
(6) This ammunition is able to defeat most body armor.
C. Caliber .308 Weapons--.308 weapons, such as the M14 or the Remington 700-P, should be used in medium to long range rural situations. Notable characteristics are as follows:
(1) These weapons are particularly effective when operating in an environment where greater range and penetration are desirable.
(2) The maximum effective range is approximately 600 yards. The range is limited by positive target identification and operator skill.
(3) These weapons are desirable for encounters in heavy brush, against barricaded suspects or suspects using the protection of vehicles or walls, or in long range confrontations.
(4) The heavier bullet is superior to the.223 in maintaining velocity and energy at greater distances (not as affected by wind as
the .223 bullet).
(5) This ammunition is able to defeat most body armor.
D. Weapons capable of full automatic fire should normally be used in the semi-automatic mode. The full automatic mode should be used only when dictated by the tactics, e.g., suppressive fire.
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Appendix 5.--REQUEST FOR AUTHORIZATION TO CARRY A PERSONALLY-OWNED, SERVICE-APPROVED FIREARM
Date: XXXXXXXXXX
To: Firearms Authorizing Official, XXXXXXXXXXXXXXXXXXXX
(ENTER NAME OF DUTY STATION AND DISTRICT/SECTOR)
From:
Requesting Officer's Name: XXXXXXXXXXXXXXX
From: Requesting Officer's Title: XXXXXXXXXXXXXXX
From: Requesting Officer's Branch: XXXXXXXXXXXXXXX
I request authorization to carry the below-listed Service-approved, personally-owned firearm in conjunction with my official duties as an Officer of the Immigration and Naturalization Service. I certify the following: I am the legal owner of this handgun; it meets the requirements for personally-owned firearms contained in Subsection 18 of the Service's Firearms Policy; it is listed in Appendix 1B; and it has not been modified from the original factory condition except as allowed under the INS Firearms Policy.
Make:XXXXXXXXXX Model:XXXXXXXXXX Caliber:XXXXXXXXXX
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Serial Number: XXXXXXXXXX
I understand that this authorization may be revoked at any time in accordance with the INS Firearms Policy.
Requesting Officer's Signature: XXXXXXXXXXXXXXXXXXXX
RECOMMENDATION OF FIREARMS INSTRUCTOR OR SENIOR FIREARMS INSTRUCTOR
Date: XXXXXXXXXX
I have inspected the above described firearm and certify that the description of the firearm is correct. I also certify that the firearm is in proper operating condition and complies with all requirements of the Service's Firearms Policy. If this request involves a semi-automatic pistol, I also certify that the Requesting Officer has successfully completed the Service's required semi-automatic pistol training course. In accordance with this information, I recommend approval of this request.
Signature: XXXXXXXXXXXXXXXXXXXX
Printed Name: XXXXXXXXXXXXXXXXXXXX
ACTION OF AUTHORIZING OFFICIAL
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Date: XXXXXXXXXX
This request is: XXX Approved XXX Denied
Signature: XXXXXXXXXXXXXXXXXXXX
Printed Name: XXXXXXXXXXXXXXXXXXXX
Title: XXXXXXXXXXXXXXXXXXXX
Dist: Original--Official Personnel File of Requesting Officer, for permanent retention
Copy--Authorizing Official, for personal retention
Copy--Firearm Instructor or Senior Firearms Instructor, for personal retention
Copy--Requesting Officer, for personal retention
Copy--National Firearms Unit, for record purposes
Copy--Local Firearms Inventory Control Officer, for record purposes
Appendix 6.--DEPARTMENT OF JUSTICE POLICY GOVERNING THE USE OF DEADLY FORCE
See attached memorandum from the Director, Investigative Agency Policies to the Deputy Attorney General dated October 16, 1995.
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[Memorandum for the Attorney General]
Office of Investigative Agency Policies,
Washington, DC, October 16, 1995.
Through: The Deputy Attorney General.
From: Louis J. Freeh, director, investigative agency policies.
Subject: Resolution 14.
Purpose: To obtain approval for implementation of Resolution 14, which is attached.
Timetable: Immediate.
Discussion: Resolution 14 creates a uniform Department of Justice deadly force policy. This Resolution represents consensus recommendations f the Executive Advisory Board of the Office of Investigative Agency Policies. No party to the Resolution has advised that it wishes to appeal it.
Recommendation: Approval.
Approve: XXXXXXXXXXXXX Date: October 17, 1995. Concurring component: XXXXXXXXXX
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Disapprove: XXXXXXXXXXOLC XXXXXXXXXX
Other: XXXXXXXXXX
Office of Investigative Agency Policies--Resolution 14
Pursuant to the Attorney General's Order Number 1814—93, dated November 18, 1993, and in my capacity as Director of Investigative Agency Policies, I hereby issue the following resolution concerning the use of deadly force.
BACKGROUND
The Supreme Court has addressed the constitutional restrictions on the use of deadly force. In view of those precedents, the investigative agencies of the Department of Justice (''DOJ'') have, over the years, adopted policies to govern their employees' use of deadly force. To date, however, those policies have not been standardized. The Attorney General requested that the Office of Investigative Agency Policies (''OIAP'') consider whether there should be a uniform DOJ deadly force policy and, if so, to draft it for her consideration.
Attached to this Resolution is a uniform deadly force policy and accompanying commentaries. Attachment A sets forth the uniform deadly force policy. Attachment B sets forth the commentaries governing the use of deadly force in non-custodial and custodial situations.
The deadly force policy and commentaries have resulted from many months of discussion, negotiation, and analysis among personnel from: the Federal Bureau of Investigation; the Drug Enforcement Administration; the United States Marshal Service; the Immigration and Naturalization Service; the Bureau of Prisons; the Office of the Inspector General; and DOJ's Criminal Division, Office of Legal Counsel, and Civil Rights Division.
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DISCUSSION
According to the terms of the Order creating the OIAP, I have been authorized, ''in the areas of overlapping jurisdiction of the criminal investigative agencies,'' to: ''[a]ssure, to the extent appropriate, consistent operational guidelines for the criminal investigative agencies of the Department [of Justice]; [and] ... [p]rovide advise to the Attorney General and the Deputy Attorney General on all investigative policies, procedures and activities that warrant uniform treatment or coordination ...'' Order Number 1814—93, Sections (b) (2) and (9).
I am satisfied that this policy and the commentaries uphold the sanctity of human life and provide clear direction to law enforcement officials who, in the face of extraordinary danger, must resort to the use of deadly force. I have reviewed them with members of the OIAP Executive Advisory Board (''EAB'') and there are no objections to them.
CONCLUSION
As I noted above, this Resolution and attachments have been approved by the EAB. Further, I have been advised that no OIAP member agency will appeal this Resolution or the attachments.
Louis J. Freeh,
Director of Investigative Agency Policies.
Dated: October 16, 1995, Washington, DC.
Policy Statement--Use of Deadly Force
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I. Permissible Uses.--Law enforcement officers and correctional officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.
A. Fleeing felons.--Deadly force may be used to prevent the escape of a fleeing subject if there is probable cause to believe: (1) the subject has committed a felony involving the infliction or threatened infliction of serious physical injury or death, and (2) the escape of the subject would pose an imminent danger of death or serious physical injury to the officer or to another person.
B. Escaping prisoners.--1. Unless force other than deadly force appears to be sufficient, deadly force many be used to prevent the escape of a prisoner committed to the custody of the Attorney General or the Bureau of Prisons.
a. if the prisoner is escaping from a secure institution or is escaping while in transit to or from a secure institution; orI
11b. if the prisoner is otherwise effecting his or her escape in a manner that poses an imminent danger to the safety of other prisoners, staff, or the public (such as by attempting to ignite explosives).2. The use of deadly force is not permitted if the subject is in a non-secure facility or a facility under the control of the Immigration and Naturalization Service, and (a) has not used or threatened the use of force likely to cause serious physical injury in his or her escape attempt, and (b) has not otherwise manifested an imminent threat of death or serious physical injury to the officer or community.
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3. The use of deadly force is not permitted if the subject is in transit to or from a non-secure facility and is not accompanied by persons who are in transit to or from a secure facility and the subject (a) has not used or threatened the use of force likely to cause serious physical injury in his or her escape attempt, and (b) has not otherwise manifested an imminent threat of death or serious physical injury to the officer or community.
4. After an escape from the facility or vehicle and its immediate environs has been effected, officers attempting to apprehend the escaped prisoner may not use deadly force unless such force would otherwise be authorized in accordance with this policy.
C. Prison Unrest.--Deadly force may be used to maintain or restore control of a prison or correctional institution when the officer reasonably believes that the intended subject of the deadly force is participating in a disturbance in a manner that threatens the safety of other inmates, prison staff, or other persons. The use of deadly force would be unreasonable and thus not permitted to quell a disturbance when force other than deadly force reasonably appears sufficient.
II. Non-Deadly Force.--If other force than deadly force reasonably appears to be sufficient to accomplish an arrest or otherwise accomplish the law enforcement purpose, deadly force is not necessary.
III. Verbal Warning.--If feasible and if to do so would not increase the danger to the officer or others, a verbal warning to submit to the authority of the officer shall be given prior to the use of deadly force.
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IV. Warning Shots.--Warning shots are not permitted outside of the prison context. In the prison context, warning shots may be fired within or in the immediate environs of a secure facility if there is no apparent danger to innocent persons: (A) if reasonably necessary to deter or prevent the subject from escaping from a secure facility; or (B) if reasonably necessary to deter or prevent the subject's use of deadly force or force likely to cause grievous bodily harm.
V. Vehicles.
A. Weapons may not be fired solely to disable moving vehicles.
B. Weapons may be fired at the driver or other occupant of a moving motor vehicle only when:
1. The officer has a reasonable belief that the subject poses an imminent danger of death or serious physical injury to the officer or another; and
2. The public safety benefits of using such force outweigh the risks to the safety of the officer or other persons.
VI. Vicious Animals.--Deadly force may be directed against dogs or other vicious animals when necessary in self-defense or defense of others.
VII. Rights of Third Parties.--Nothing in this policy and the attached commentary is intended to create or does create an enforceable legal right or private right of action.
Commentary Regarding the Use of Deadly Force in Noncustodial Situations
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I. INTRODUCTION
The Department of Justice hereby establishes a uniform policy with respect to the use of deadly force in both custodial and non-custodial situations. This commentary does not address the use of deadly force upon subjects relinquished to persons or facilities responsible for detention or incarceration. All other uses of deadly force are addressed in this commentary. The policy and this commentary provide practical guidance for officers who must make grave decisions regarding the use of deadly force under the most trying of circumstances. The policy also is intended to maintain uniformity among the various Departmental components and to achieve uniform standards and training with respect to the use of deadly force. Although each component may still develop and conduct its own training on deadly force, the policy governs the use of deadly force under all circumstances.
The policy is the product of discussion among the various law enforcement agencies whose personnel are called upon to make decisions regarding the use of deadly force, of review of the current policies governing the use of force, and of advice of legal counsel from various Department components, including those charged with law enforcement, defense of civil actions filed against the government, enforcement of civil rights, and provision of constitutional advice. In developing the policy, it became apparent that decisional law provides only limited guidance regarding the use of deadly force.(see footnote 1) In addition, as a matter of principle, the Department deliberately did not formulate this policy to authorize force up to constitutional or other legal limits.(see footnote 2)
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II. DEFINITIONS
Deadly force is the use of any force that is likely to cause death or serious physical injury. When an officer of the Department uses such force in non-custodial situations, it may only be done consistent with this policy. Force that is not likely to cause death or serious physical injury, but unexpectedly results in such harm or death, is not governed by this policy.
Probable cause, reason to believe or a reasonable belief, for purposes of this policy, means facts and circumstances, including the reasonable inferences drawn therefrom, known to the officer at the time of the use of deadly force, that would cause a reasonable officer to conclude that the point at issue is probably true. The reasonableness of a belief or decision must be viewed from the perspective of the officer on the scene, who may often be forced to make split-second decisions in circumstances that are tense, unpredictable, and rapidly evolving. Reasonableness is not to be viewed from the calm vantage point of hindsight.
III. PRINCIPLES ON USE OF DEADLY FORCE
The Department of Justice recognizes and respects the integrity and paramount value of all human life. Consistent with that primary value, but beyond the scope of the principles articulated here, is the Department's full commitment to take all reasonable steps to prevent the need to use deadly force, as best reflected in Departmental training and procedures. Yet even the best prevention policies are on occasion insufficient, as when an officer serving a warrant or conducting surveillance is confronted with a threat to his or her life. With respect to these situations and in keeping with the value of protecting all human life, the touchstone of the Department's policy regarding the use of deadly force is necessity. Use of deadly force must be objectively reasonable under all the circumstances known to the officer at the time.
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The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail. Thus, employing deadly force is permissible when there is no safe alternative to using such force, and without it the officer or others would face imminent and grave danger. An officer is not required to place him or herself, another officer, a suspect, or the public in unreasonable danger of death or serious physical injury before using deadly force.
Determining whether deadly force is necessary may involve instantaneous decisions that encompass many factors, such as the likelihood that the subject will use deadly force on the officer or others if such force is not used by the officer; the officer's knowledge that the subject will likely acquiesce in arrest or recapture if the officer uses lesser force or no force at all; the capabilities of the subject; the subject's access to cover and weapons; the presence of other persons who may be at risk if force is or is not used; and the nature and the severity of the subject's criminal conduct or the danger posed.
Deadly force should never be used upon mere suspicion that a crime, no matter how serious, was committed, or simply upon the officer's determination that probable cause would support the arrest of the person being pursued or arrested for the commission of a crime. Deadly force may be used to prevent the escape of a fleeing subject if there is probable cause to believe: (1) the subject has committed a felony involving the infliction or threatened infliction of serious physical injury or death, and (2) the escape of the subject would pose an imminent danger of death or serious physical injury to the officer or to another person.
As used in this policy, ''imminent'' has a broader meaning than ''immediate'' or ''instantaneous.'' The concept of ''imminent'' should be understood to be elastic, that is, involving a period of time dependent on the circumstances, rather than the fixed point of time implicit in the concept of ''immediate'' or ''instantaneous.'' Thus, a subject may pose an imminent danger even if he or she is not at that very moment pointing a weapon at the officer if, for example, he or she has a weapon within reach or is running for cover carrying a weapon or running to a place where the officer has reason to believe a weapon is available.
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IV. LESSER MEANS
Intermediate force.--If force lesser than deadly force could reasonably be expected to accomplish the same end, such as the arrest of a dangerous fleeing subject, without unreasonably increasing the danger to the officer or to others, then it must be used. Deadly force is not permissible in such circumstances, although the reasonableness of the officer's understanding at the time deadly force was used shall be the benchmark for assessing applications of this policy.
Verbal warnings.--Before using deadly force, if feasible, officers will audibly command the subject to submit to their authority. Implicit in this requirement is the concept that officers will give the subject an opportunity to submit to such command unless danger is increased thereby. However, if giving such a command would itself pose a risk of death or serious bodily harm to the officer or others, it need not be given.
Warning shots and shooting to disable.--Warning shots are not authorized. Discharge of a firearm is usually considered to be permissible only under the same circumstances when deadly force may be used--that is, only when necessary to prevent loss of life or serious physical injury. Warning shots themselves may pose dangers to the officer or others.
Attempts to shoot to wound or to injure are unrealistic and, because of high miss rates and poor stopping effectiveness, can prove dangerous for the officer and others. Therefore, shooting merely to disable is strongly discouraged.
Motor vehicles and their occupants.--Experience has demonstrated that the use of firearms to disable moving vehicles is either unsuccessful or results in an uncontrolled risk to the safety of officers or others. Shooting to disable a moving motor vehicle is forbidden.
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An officer who has reason to believe that a driver or occupant poses an imminent danger of death or serious physical injury to the officer or others may fire at the driver or an occupant only when such shots are necessary to avoid death or serious physical injury to the officer or another, and only if the public safety benefits of using such force reasonably appear to outweigh any risks to the officer or the public, such as from a crash, ricocheting bullets, or return fire from the subject or another person in the vehicle.
Except in rare circumstances, the danger permitting the officer to use deadly force must be by means other than the vehicle.
V. MISCELLANEOUS
Deadly force may be directed against dogs or other vicious animals when necessary in self-defense or defense of others.
Nothing in this policy and the attached commentary is intended to create or does create an enforceable legal right or private right of action.
Commentary Regarding the Use of Deadly Force in Custodial Situations
I. INTRODUCTION
The Department of Justice hereby establishes a uniform policy with respect to the use of deadly force in both custodial and non-custodial situations. This commentary addresses the use of deadly force in custodial situations including conditions of prison unrest and when a subject is escaping custody. The policy and this commentary provide practical guidance for officers who must make grave decisions regarding the use of deadly force under the most trying of circumstances. The policy also is intended to achieve uniformity among the various Departmental components, which previously had established their own standards for the use of deadly force. Although each component may still develop and conduct its own training on deadly force, the policy governs the use of deadly force within any facility dedicated to the incarceration of persons or by any officer who is responsible for the transporting or custody of persons incarcerated or to be incarcerated. Those portions of the policy which address custodial or prison situations specifically, do not apply to officers who are merely detaining an arrestee or transporting an arrestee from the place of arrest; nor do these portions of the policy apply to the transporting of an arrestee to a facility dedicated to incarceration. In addition, the Immigration and Naturalization Service (INS) officers, in INS controlled facilities, are not authorized to use deadly force except in self-defense or defense of others.
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The policy is the product of discussion among the various law enforcement agencies whose personnel are called upon to make decisions regarding the use of deadly force, of review of the current policies governing the use of force, and of advice of legal counsel from various Department components, including those charged with law enforcement, defense of civil actions filed against the government, enforcement of civil rights, and provision of constitutional advice. In developing the policy, it became apparent that decisional law provides only limited guidance regarding the use of deadly force.(see footnote 3) In addition, as a matter of principle, the Department deliberately did not formulate this policy to authorize force up to constitutional or other legal limits.(see footnote 4)
II. DEFINITIONS
Deadly force is any force that is likely to cause death or serious physical injury. When an officer of the Department uses such force, it may only be done consistent with this policy. Force that is not intended to cause death or serious physical injury, but unexpectedly results in such injury or death, is not governed by this policy.
Escape for the purposes of this policy encompasses the concept of immediacy of an attempt to leave custody. A person in custody is escaping from a facility or vehicle when he or she is attempting to escape and is still within the facility's immediate environs. Hence the concept of escape is different under this policy than under 18 U.S.C. 751 and 28 U.S.C. 1826(c), which provide that escapes are continuing offenses.
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Probable cause, reason to believe or a reasonable belief, for purposes of this policy, means facts and circumstances, including the reasonable inferences drawn therefrom, known to the officer at the time of the use of deadly force, that would cause a reasonable officer to conclude that the point at issue is probably true. The reasonableness of a belief or decision must be viewed from the perspective of the officer on the scene, who may often be forced to make split-second decisions in circumstances that are tense, unpredictable, and rapidly evolving. Reasonableness is not to be viewed from the clam vantage point of hindsight.
III. DEADLY FORCE GENERALLY
The Department of Justice recognizes and respects the integrity and paramount value of all human life. Consistent with that primary value, but beyond the scope of the principles articulated here, is the Department's full commitment to take all reasonable steps to prevent the need to use deadly force as reflected in Departmental training and procedures. Yet even the best prevention policies are on occasion insufficient, as when a serious prison disturbance occurs, or when a prisoner confined to a secure facility attempts to escape from custody. With respect to these situations and in keeping with the value of protecting all human life, the touchstone of the Department's policy regarding the use of deadly force is necessity. Use of deadly force must be objectively reasonable under all the circumstances known to the officer at the time, including the nature and the severity of prison disturbance, whether officers at the facility carry firearms, the use or threat of use of force upon the officer or others in any escape attempt, and the escapee's response to any warning.
The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail. Thus, employing deadly force is permissible when there is no safe alternative to using such force, and without it the officer or others would face imminent and grave danger. An officer is not required unreasonably to place his or her life, that of another officer, another prisoner or suspect, or the public in danger of death or serious injury before using deadly force. Persons who have been determined to require confinement in a secure facility ordinarily pose such a danger when attempting to escap
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IV. PRISON CONTROL
No force, deadly or non-deadly, may be used wantonly, maliciously or sadistically by prison officials against prisoners. Force may never be used solely for the purpose of causing harm. Deadly force may be used in maintaining or regaining control of a prison, correctional institution, or any portion or facility of such an institution, in the event of mutiny, rebellion, riot, or disturbance that threatens the safety of inmates, prison staff, or other persons. Deadly force may be used only when it is necessary and the officer reasonably believes that the subject is him or herself participating in a disturbance. Participation for these purposes is more than simply being in the area where others are visibly creating the disturbance, particularly if the subject has had no opportunity to exit that area. On the other hand, in considering the use of deadly force in the exigent circumstances of a prison disturbance, an officer need not ascertain who is instigating or leading the disturbance before finding that someone is sufficiently participating in the disturbance.
The reasonableness of an officer's determination to use deadly force may turn on the officer's vantage point and assignment. Deadly force may also be used when a single prisoner presents an imminent danger of serious physical injury to another person or persons.
V. ESCAPES
The Department's responsibility to protect the public is at its zenith when the Department, performing its custodial function, determines that a prisoner is to be confined in a secure facility. Acting in that capacity, the Department's obligation to ensure that prisoner's contained custody entails strict procedures including the threat of the use of deadly force should such a prisoner attempt to escape. Correctional officials may display firearms at federal correctional institutions to deter the escape of such prisoners. Officers may presume that a prisoner attempting to escape from a secure institution, as defined by the Bureau of Prisons, would pose an imminent danger of death or serious physical injury to members of the public if permitted to consummate the escape. Similarly, the use of deadly force is governed by the same principles in the case of prisoners in transit. If the prisoner is in transit to or from a secure facility, deadly force ordinarily would be necessary if no other means were reasonably likely to stop the escape from being consummated. A person attempting an escape is considered to be attempting an escape from a secure institution or in transit to or from it when the limits of such secure confinement have been specially extended, as, for instance, when the subject has been transferred to a hospital or permitted to attend a funeral under armed escort.
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The presumption that those attempting to escape from secure facilities pose an imminent danger (and are thus subject to the use of deadly force) runs in the other direction if the facility is non-secure. A determination has already been made that, in non-secure facilities, persons would not pose an imminent danger to the public if the person escaped. Accordingly, and in the absence of other factors demonstrating an imminent danger, it would be unreasonable to use deadly force to prevent escapes of persons from non-secure facilities or to prevent escapes of persons in transit to or from a non-secure facility unless accompanied by persons going from or to a secure facility. Examples of factors demonstrating an imminent threat include the circumstances where the prisoner has become armed or has used or threatened to use force likely to cause serious physical injury. In making the ''imminent threat'' determination, it should be recognized that ''imminent'' has a broader meaning than ''immediate'' or ''instantaneous.'' The concept of ''imminent'' should be understood to be elastic, that is, involving a period of time dependent on the circumstances, rather than the fixed point of time implicit in the concept of ''immediate'' or ''instantaneous.'' Thus, for example, a prisoner may pose an imminent threat, even if he or she is not at that very moment in possession of a weapon, if he or she is running to a place where the officer has reason to believe a weapon is available.
Once an escape is no longer in progress, but has been accomplished, that is, once the subject is no longer in the immediate environs of the facility, officers must attempt to effect a rearrest of the subject. In such cases, the policy pertaining to escaping prisoners is no longer applicable. Deadly force would then be authorized only consistent with the policy governing the use of such force in circumstances other than those of escaping prisoners.
VI. DESTRUCTION OF PROPERTY
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In accord with the policy permitting the necessary use of deadly force to maintain control of prisons and correctional institutions and to stop attempted escapes, deadly force may be used when someone is destroying or attempting to destroy property, if the loss of or damage to the property could contribute directly to an escape or attempted escape, serious physical injury, or death. Examples of this type of situation include using explosives in order to effect an escape from prison or attempting to disable a fire truck during a fire within an institution. If the destruction of property does not reasonably appear to be likely to so contribute to an escape, serious physical injury, or death, using deadly force would probably be unreasonable and thus forbidden.
VII. LESSER MEANS
Verbal warnings.--The Department of Justice requires that before using deadly force, if feasible, officers will audibly command the subject to submit to their authority. Implicit in this requirement is the concept that officers will give the subject an opportunity to submit to such command unless the danger is increased thereby. However, if giving such a command would itself pose a risk of death or grievous bodily harm to the officer or others, it need not be given.
Warning shots.--Within or from the immediate environs of a secure facility, warning shots may be fired as an intermediate measure at the discretion of the officer if verbal warnings are to no avail. If the officer determines that the firing of a warning shot is a necessary step to deterring or preventing an escape or preventing the loss of life or the infliction of serious physical injury, the officer may fire warning shots only if he or she can do so safely; that is, there is no apparent danger of injury to an innocent person.
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VIII. LIMITATION
Nothing in the policy and this commentary is intended to create or does create an enforceable legal right or private right of action.
Tab J
[Memorandum of Aug. 16, 1996]
Subject: Secondary Detention Procedures at Ports-of-Entry.
To: Regional Directors, District Directors, Port Directors, Officers in Charge.
From: Office of Programs.
This memorandum sets forth Immigration and Naturalization Service (INS) policy and guidance for the handling of detained aliens in enforcement secondary at the Ports-of-Entry (POEs) and supersedes any previous policy. On most items these instructions merely expand, reemphasize, or clarify policies that the INS has issued previously as official policy and procedure.
A. Who may be detained and for how long
The INS has established a policy and priority system for the detention of aliens, to effectively enforce the immigration and nationality laws of this country and to comply with statutory requirements relating to criminal aliens. [Refer to the Commissioner's policy memoranda dated July 23, 1993, and May 14, 1995, attached.]
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The INS has detention authority under section 235 of the Immigration and Nationality Act (INA), 8 U.S.C. 1225, for aliens who are subject to exclusion proceedings. The INA directs that every alien (other than crew members, stowaways, and security risks whom separate provisions cover) ''... who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.'' (Emphasis added.) Thus, the statute authorizes the detention of excludable aliens. This statutory directive has been upheld in each court action questioning the practice. The INS's preventing the entry of inadmissible aliens through a POE, after the completion of the inspections process, normally satisfies the statutory detention requirements. However, some cases require physical custody for purposes of enforcement or safety.
To meet INS enforcement responsibilities, district directors must exercise appropriate discretion in making custody determinations based on Sections 235, 236 and 242 of the INA. They must also consider statutory requirements mandating compulsory INS detention for some types of cases. Existing policy pertaining to prioritizing which aliens shall be detained should be used in determining which aliens to place in hold rooms.
To ensure the safety of both the officers and the traveling public, officers shall initially consider preventive detention placement in hold rooms before officers establish admissibility. Factors to consider include armed and dangerous indicators, known criminal activity (i.e., active arrest warrant, etc.), observed dangerous or violent behavior, verbal threats, and/or any other indicator of a risk of escape or assault.
Short-term detention hold rooms at the POEs are temporary but secure confinement areas where an alien shall be detained, for short duration only (fewer than 24 hours): (1) while a case is being prepared for presentation for prosecution; (2) pending parole or release; (3) pending departure from the United States; (4) pending transfer of custody to another branch or agency; and/or, (5) while arrangements are being made for longer-term detention.
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The list below sets forth short-term detention criteria in priority order when not all inadmissible aliens can be detained because of limited space or the lack of hold rooms. Every effort shall be made to follow these priorities within existing budgetary guidelines and space allocations. This does not preclude district directors, or their designees, from detaining lower priority cases in instances where, in their judgment, operational imperatives warrant such detention.
Officers shall detain aliens determined to be inadmissible in short-term hold rooms, before the completion of all casework, according to the following listed priorities.
Short-term detention priority list
1. Terrorists, ''Special Interest Cases,'' or criminal aliens.
Aliens with terrorist history, with or without criminal conviction. This includes Special Interest cases involving suspected terrorists whom the Federal Bureau of Investigation has identified ''with or without criminal convictions'';
Aliens convicted of aggravated felonies (subject to either deportation or exclusion proceedings);
Other convicted criminals; and/or,
Aliens identified through the Alien Smuggler Identification and Deportation Project.
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2. Aliens who attempt to enter the United States by way of large international, organized, criminal smuggling activities, whether subject to exclusion or deportation proceedings.
3. Aliens who attempt to enter with fraudulent documents or no documents.
4. Aliens who have committed fraud before the INS (i.e., immigrant and/or non-immigrant visas obtained by fraud, etc.).
5. Aliens who have violated the INA or regulations and are not encompassed in the categories above (i.e., administrative cases).
After determining inadmissibility and completing casework, officers shall detain aliens in hold rooms at the POEs for short durations only. Accordingly, every effort will be made to transfer, transport or release those in custody as quickly as is operationally feasible. District directors, or their designees, shall determine the maximum amount of time any alien will be confined in short-term hold rooms awaiting transfer, transport or release. To comply with this policy district directors or their designees shall develop procedures in writing that consider local conditions, taking into account geographic location, weather, casework volume, emergent conditions, and other operational imperatives necessary to transfer, transport or release detained aliens quickly.
B. Who may not be detained in short-term hold rooms
Officers should be sensitive to detained aliens who are pregnant, on lifesaving medication, or appear ill. Where operationally feasible, each alien shall be asked whether he or she has any medical conditions or is on medication before being placed in short-term hold rooms. To the extent possible, no one who is pregnant, on lifesaving medication, or appears ill shall be detained in short-term hold rooms but instead shall be seated in the secondary area under direct supervision and control. Officers should arrange for appropriate medical treatment where necessary. See Section E regarding medical emergencies.
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Males and females shall be segregated at all times (even if they claim to be married). Under no circumstances are detained aliens under the age of 18 to be held with adult detainees, unless the adult is an immediate relative or recognized guardian who has been charged with the care and custody of the child or minor, and no other adult detainees are present in the hold room. Proper and humane treatment of juveniles is of paramount importance.
Family units, persons of advanced age (over the age of 70), females with children, and unaccompanied juvenile detainees (under the age of 18) shall not be placed in short-term hold rooms, unless they have shown or threatened violent behavior, have a history of criminal activity, or there exists an articulable likelihood of attempting to escape. Family units, persons of advanced age (over 70), females with children, and unaccompanied juveniles shall be seated in the secondary area under direct supervision and control unless extraordinary and unforeseen circumstances occur.
To the extent possible, the processing of enforcement secondary cases (where a charging document is issued) involving unaccompanied minors (under 18), persons of advanced age (over 70), or persons who are ill or pregnant shall be expedited as quickly as is operationally feasible, for humanitarian concerns.
C. Search and transfer procedures
All detainees in INS custody shall be detained in a manner that is safe, secure, humane, dignified and professional.
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All detainees shall be given a patdown search for weapons or contraband before being placed in a short-term hold room. Where operationally feasible, an officer of the same sex as the alien shall perform the patdown search. A patdown search shall be performed even if another section or agency claims that the alien has already been patted down. If the patdown search indicates that a more thorough search is needed, the reason for an extended search (i.e., strip search) shall be presented to a supervisor for concurrence. If the supervisor determines that the ''reasonable suspicion'' standard is met, an officer shall perform an extended search. The term ''reasonable suspicion'' means the existence of articulable facts that reasonably lead an officer to suspect that a particular person is concealing a weapon, contraband, or evidence of a crime. If an extended search is required, an officer of the same sex as the alien shall thoroughly search the alien in the presence of another officer of the same sex. For detailed instructions on performing body searches, officers should consult the INS Body Search policy, which is now in development and will soon be issued.
Before placing an alien in the short-term hold room, officers shall empty the alien's pockets. All sharp objects, such as pens, pencils, knives, nail files or other objects that may be used as weapons or to deface property, shall be taken from the alien. Officers shall also remove any edged objects of clothing such as belt buckles, jewelry, etc. Officers shall also take all rope-like objects, such as shoelaces, belts, necklaces, scarves, or any other objects that the alien could use to injure him/herself. All items shall be placed in a properly-marked plastic ''seal a bag'' which shall be placed in a secure area. Officers shall use Form G—589 (Property Receipt) to establish the chain of custody and proper accounting of personal property. Officers shall also use Form I—77 (Baggage Check) when receipting large valuable property (i.e., tool boxes, stereos, etc.).
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Form G—786 (Alien Funds Audit Sheet) is required when receipting money or other negotiable instruments. Officers shall complete Form G—786 even if the alien has no money at all.
Where operationally feasible, two officers shall inspect all property, including that found in parcels, suitcases, bags, bundles and boxes, in the presence of the detainee to ensure officer safety and accountability. This procedure shall also be followed when property is delivered to an alien subsequent to his or her arrival at any transfer site.
Officers shall complete Form I—216 (Record of Persons and Property Transferred) to record all property transferred with detainees. This form shall show receipt numbers and/or amounts of cash accompanying each detainee.
It is of paramount importance that supervisors review and be held accountable for the completion of all forms. Supervisors shall ensure that all forms are reconciled, verified, signed and dated. Port directors, Officers-in-Charge, assistant district directors, or other management officials accountable for POE operations must ensure that appropriate procedures are in place and in use.
D. Basic operational procedures
Each POE shall maintain a detention log (manually or by computer) for each detainee placed in a hold cell. At a minimum, log records must include the name, age, sex, nationality, whether the alien was advised of the right to communicate with consular official, file number, date and time admitted, date and time transferred out, and final disposition. The log shall also provide space for comments and space to show meal times and visual checks. The officer handling the case shall enter information relating to each alien into the log immediately upon placing the alien in a hold room.
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Officers shall provide a meal to any alien detained more than six hours (including case preparation time). Juveniles, small children, toddlers, babies and pregnant women shall have access to snacks, milk or juice. To the extent reasonably possible, meal service to juveniles shall be provided regardless of time in custody. It is emphasized that funding for meal service is not discretionary.
Drinking water shall be available in Styrofoam or paper cups for detained aliens requesting water. It is the responsibility of the supervisor to ensure that drinking water is available.
Officers shall closely supervise the detention hold rooms when in use. The hold rooms shall be monitored every 15—30 minutes, with the time and officer's name printed on the detention log. Any
unusual behavior or complaints shall be noted in the ''comments'' section. Anyone who exhibits unusual behavior, such as hostility or depression, shall be kept under constant surveillance, and an officer shall notify the supervisor immediately to determine whether to continue detention.
It is the responsibility of the supervisor to ensure that an officer is within visual or audible range of the hold rooms to allow detained aliens access to toilet facilities on a regular basis when no restroom facilities are available in the hold rooms. Aliens using the restroom shall be under direct supervision and monitored closely. Detainees shall have access to toilet items such as soap, toilet paper, cups for water, female hygiene items, diapers, and wipes.
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Every alien shall be notified that he or she may communicate by telephone with the consular or diplomatic officers of the country of his or her nationality in the United States. Existing treaties require immediate communication with appropriate consular or diplomatic officers whenever certain nationals are detained in exclusion or expulsion proceedings, whether or not the alien requests that no communication be undertaken. [8 CFR 242.2(g)] Depending on the length of detention and security risks, the supervisor shall determine whether or not the detainee will be allowed to communicate by telephone or in person with any other person.
Aliens shall not be allowed to smoke in the detention hold room.
No officer shall enter the detention hold room with a sidearm. No officer is to enter an occupied detention hold room unless another officer is stationed outside the door ready to respond if necessary.
E. Fire, building evacuation and medical emergencies
Established, written evacuation plans for a POE shall include a responsible officer(s) to remove detainees from detention hold rooms in case of fire and/or building evacuation.
An appropriate emergency service shall be called immediately upon a determination that a medical emergency may exist during the detention of any person. If the detainee is removed for treatment, an officer shall accompany the detainee and remain with the detainee until doctors determine whether the illness will require hospitalization. If the detainee is not hospitalized, the officer shall remain with the detainee until treatment is complete and then escort the detainee back to the POE. If the detainee is hospitalized, the officer shall notify the supervisor and await further instructions. The officer shall notify the supervisor immediately of all medical emergencies.
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F. Secondary control when no hold rooms exist
To meet INS enforcement responsibilities, the uniform priority detention guidelines previously established shall be applied at those POEs that do not have short-term hold rooms. Where operationally feasible, a segregated area, away from the traveling public but within the POE, should be established, to hold, detain, and/or restrain those aliens who have been identified under the priority detention guidelines. All aliens identified and segregated under the priority detention guidelines shall be under direct supervision and control. Any use of restraints shall be governed by the following guidelines.
Guidelines for the use of restraints within a segregated area within a POE
Officers shall employ only the amount of restraint needed to ensure the safety of the detainee and the officers and to prevent escape. Officers shall take into consideration known criminal activity (i.e., active arrest warrant, etc.), observed dangerous or violent behavior, verbal threats and any other indicator of a risk of escape or assault in determining whether to use restraints.
When restraints are used, the officer must have reasonable, articulable facts to support the decision. When detainees are restrained within the public view, use of restraining devices must be justifiable. Discretion in determining the continued use or removal of restraints shall take into consideration the nature of the inadmissibility of the individual. If supervisory approval for the use of restraints cannot be obtained prior to their use, it must be obtained as soon as possible subsequent to their use. Any prolonged use of restraints shall have supervisory concurrence. All restrained aliens shall be under direct supervision and control.
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Any restraints used must not inflict physical pain or undue physical discomfort or restrict blood circulation or breathing. Restraints shall not be used as a punishment.
Officers should be sensitive to persons who are pregnant, on lifesaving medication, or appear ill. Where operationally feasible, each alien shall be asked whether he or she has any medical conditions or is on medication before being placed in restraints. To the extent possible, no one who is pregnant, on lifesaving medication, or appears ill shall be restrained unless he or she has shown or threatened violent behavior, has a history of criminal activity, or there exists an articulable likelihood of attempting to escape. Rather, the alien shall be seated in the secondary area under direct supervision and control.
Family units, persons of advanced age (over 70), females with children, and unaccompanied juvenile detainees shall not be restrained, unless individuals have shown or threatened violent behavior, have a history of criminal activity, or there exists an articulable likelihood of attempting to escape. Family units, persons of advanced age (over 70), females with children and unaccompanied juveniles shall be seated in the secondary area under direct supervision and control.
The operational procedures outlined in Sections B through F apply to aliens detained in a segregated area within the POE. Aliens who are segregated are detainees, whether placed in a hold cell or not, and are subject to the operational procedures discussed above.
G. Summary
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Simply preventing the entry of an inadmissible alien satisfies statutory detention requirements. However, some cases require custody detention. Priority detention criteria allow INS to meet its enforcement responsibilities within limited space and budgetary guidelines. The professional, discretionary judgement of an individual officer making custody determinations is of paramount importance. Officers shall be sensitive to processing detainees who are of humanitarian concern, especially unaccompanied juveniles and females with children. Officers shall follow proper search and alien transfer procedures to ensure safety and accountability. Officers shall follow basic operational procedures to ensure that all detainees in INS custody are held in a manner that is humane and secure.
Please ensure that all INS personnel performing immigration inspections are aware of this memorandum. Supervisory and/or management officials shall ensure that officers are familiar with, and comply with, the contents of this memorandum. All INS personnel should consult the attached Addendum regarding the equipment and materials necessary to implement this policy.
If you have any questions or require additional information regarding the above, please contact Colleen Manaher, INS Office of Inspections (HQINS), at (202) 305—1063.
The Office of Field Operations concurs with this memorandum.
T. Alexander Aleinikoff,
for Executive Associate Commissioner.
Attachments.
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Addendum: District directors shall ensure, to the maximum extent possible, that existing hold rooms and future hold rooms conform to the minimum acceptable level outlined in the Hold Room Design Standards issued by Facilities and Engineering (HQENG). In light of the difficulties older facilities may have in meeting the minimum acceptable level outlined in the Hold Room Design Standards, the district director, facility administrator, and Headquarters should develop a plan designed to bring the facility into compliance within a reasonable period.
The following items are necessary to implement this policy. Each POE should determine the quantity of equipment necessary based upon past detention experience in casework volume. Coordination with Detention and Deportation is advised as they may have local agreements in place to purchase equipment and supplies.
Forms: G—589 (Property Receipts), I—77 (Baggage Check Forms), G—786 (Alien Funds Audit Sheet), I—216 (Record of Persons and Property Transferred), Detention Log, Property Envelopes.
Operational items: First-Aid kits, Established Baggage/Storage Area, Drop Safe, Latex gloves, Plastic ''seal a bags'' Handcuffs, Flexi-cuffs, Leg Irons.
Food items: Boxed juice, Boxed snacks (cookies, crackers, small-packaged snacks), Styrofoam/paper cups. [Special arrangements can be established with local vendors for boxed meals.]
Toilet items: Soap, Toilet paper, Feminine hygiene items, Diapers/wipes, Formula.
References: Administrative Manual AM 4251 (March 10, 1986), Administrative Manual AM 2481 (AM 2481.07--October 1, 1959), Section 235, 236, 242 INA (8 U.S.C. 1225, 1226, 1252), 8 CFR 242.2(g), 8 CFR 287.3, 8 CFR 235.3(b), 8 CFR 212.5, Hold Room Design Standards 1993.
Memorandums: Commissioner's ''Custody and Release Procedures Involving Juvenile Aliens'' 1993, Commissioner's ''Detention Policy Guidance'' and ''Special Interest Cases'' 1993 and 1995, Deputy Commissioner's ''AEDPA Implementation Instruction 1 and 2: Mandatory Detention Requirement of Section 242(a)(2) of the INA'' 1996, Deputy Commissioner's ''Instruction for the Detention, Placement, and Release of Chinese Juveniles'' 1995, Western Region ''Standard for Detention of Aliens at Ports of Entry'' 1988, HQDDP ''Instruction to calculate time in detention for detained aliens'' 1987, Western Region ''Meals for detained aliens'' 1986.
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Other: Proposed Enforcement Standard Use of Restraints and Escorts--HQDDP DRAFT 1996, American Correctional Association--Adult Local Detention Facility Standards--Third Edition, CRLA/Operation Gatekeeper Discussion Paper 1995.
[Memorandum]
Subject: Custody and Release Procedures Involving Juvenile Aliens.
To: All Regional Administrators, All Regional Counsels, All District Directors, All Chief Patrol Agents.
From: Office of the Commissioner.
The following Detention and Deportation Officers have been assigned to assist the National Juvenile Coordinator to ensure compliance with INS regulations regarding the detention and release of juvenile aliens, the Commissioner's National Policy Regarding Detention and Release of Unaccompanied Alien Minors (December 13, 1991), and applicable case law within their respective regions:
Shirley Parfitt, Eastern Region--(802) 660—5010
Linda Rabbett, Northern Region--(612) 725—3607
Ken Young, Southern Region--(214) 767—7062
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Dona Coultice, Western Region--(714) 643—4225
These officers will closely monitor all pending juvenile cases in their respective regions and will assist in finding and placing detained alien minors in appropriate shelter care facilities. An alien minor or juvenile is defined as a foreign national under the age of 18 who is the subject of exclusion or deportation proceedings or who has an application for asylum pending before the INS.
The following regulatory provisions and procedures should be strictly complied with whenever juvenile aliens are encountered:
ARREST AND PROCESSING OF JUVENILE ALIENS
(1) 8 C.F.R. 242.24(g) and Perez-Funez v. INS, 619 F. Supp. 656 (C.D. Cal. 1985). Whenever an unaccompanied alien minor is apprehended in the United States, he or she must be presented with a notice of rights (Form I—770) before he or she can be offered or permitted to depart voluntarily from the United States. Juvenile aliens who are not nationals of Canada or Mexico must be given access to a telephone and must communicate with either a parent, an adult relative, a friend, or with an organization found on the free legal services list before they can be offered voluntary departure. Juvenile aliens apprehended in the immediate vicinity of the border who reside permanently in Mexico or Canada must be offered the opportunity to make a telephone call to one of those persons but need not in fact do so. This provision does not apply to alien minors subject to exclusion proceedings. However, it is recommended that before an alien minor is permitted to withdraw his or her application for admission, he or she should first be given the opportunity to consult with a parent, an adult relative, an adult friend, or a consular or diplomatic officer.
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(1a) Special for nationals of El Salvador: Orantes-Hernandez v. Thornburgh, 685 F. Supp. 1488 (C.D. Cal. 1988). In addition to the above, juvenile aliens from El Salvador must also be informed of their right to apply for asylum before voluntary departure is discussed. They must not be coerced to accept voluntary departure or dissuaded from applying for asylum. They must also sign an acknowledgement showing that the required notices were provided. Among other things, INS must provide access to telephones during processing and provide and maintain free legal services lists. The INS may not transfer an unrepresented Salvadoran from the district of his or her apprehension for at least 7 days in order to afford him or her the opportunity to obtain counsel. The juvenile alien may waive this last requirement if his or her waiver is knowing, intelligent, and voluntary. Whenever a conflict arises between Orantes and Perez-Funez, follow the Perez-Funez court order.
(2) 8 C.F.R. 242.2(g). Every juvenile alien must be told that he may communicate with a consular or diplomatic officer from his home country. Additionally, the United States has treaty obligations with certain countries whereby consular or diplomatic officers must be notified immediately whenever one of their nationals is detained in exclusion or deportation proceedings.
(3) 8 C.F.R. 287.3. Whenever a juvenile alien is arrested without a warrant, he or she must be brought before an INS examining officer promptly, but at least within 24 hours of arrest, for a determination of whether there is prima facie evidence that he or she was entering, attempting to enter, or is in the United States in violation of the immigration laws. The examining officer must be someone other than the arresting officer unless no other qualified examiner is readily available.
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After the examining officer has determined that exclusion or deportation proceedings will be instituted, he or she must advise the juvenile alien:
(a) of the reason for his or her arrest;
(b) of the right to be represented by counsel of his or her choice, at no expense to the government;
(c) of the availability of free legal services programs and organizations;
(d) that any statement he or she makes may be used against him or her in any judicial or administrative proceeding; and
(e) that a decision will be made within 24 hours whether he or she will be continued in custody or is eligible for release in accordance with 8 C.F.R. 242.24(b).
(4) 8 C.F.R. 242.3(a) and 103.5a(c). An order to show cause (Form I—221) issued against a juvenile alien under the age of 14 must be served upon the person with whom the minor resides and, whenever possible, also upon ''the near relative, guardian, committee, or friend.'' If the alien minor has no residence in the United States when apprehended, service should be upon the person to whom the minor is released or upon the party which is given physical custody of the minor.
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(5) 8 C.F.R. 242.2(c)(2). If a determination is made to continue custody or to place conditions on the minor's release or bond, the minor must be advised that he or she may apply to the immigration judge for a redetermination of the examining officer's decision. The minor must note on the order to show cause whether redetermination by an immigration judge is desired. Although there is no regulatory time frame within which any such redetermination hearing must take place, all minors should be brought before an immigration judge expeditiously when a custody or bond redetermination hearing is requested and in all cases where the juvenile fails to check whether a redetermination hearing is requested.
(6) 8 C.F.R. 242.4 and 8 U.S.C. 287(f). All juvenile aliens 14 years of age and older who are in deportation proceedings must be fingerprinted and photographed.
(7) 8 C.F.R. 236.8. All juvenile aliens 14 years of age or older who are excluded from admission to the United States by an immigration judge must be fingerprinted.
(8) 8 C.F.R. 287.3. Any charging document issued after the termination of a prior charging document against a juvenile alien in INS custody must be issued within 24 hours of the termination. Otherwise, the INS has no legal authority to detain the minor even in a child-care facility such as a group home or foster home.
NOTE: The A-files of all juvenile aliens who are in the legal custody of the INS(see footnote 5) must be marked ''RUSH--Detained at Government Expense.'' These cases should be handled expeditiously as are all other detained cases.
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PROCEEDINGS BEFORE THE IMMIGRATION COURT
(9) 8 C.F.R. 242.16(b). An immigration judge may not accept an admission of deportability from an unrepresented juvenile alien under the age of 16 who is not accompanied by a guardian, relative, or friend. In these situations, the immigration judge must conduct a hearing to determine deportability. On occasion, the immigration judge may not accept the I—213 as reliable evidence of deportability. Therefore, the arresting and examining officers should be prepared to testify, in any such proceeding, that any statements made by the juvenile alien during the custodial interrogation were knowing, voluntary and not the product of coercion.
(10) Whenever an immigration officer wishes to speak to a represented juvenile alien regarding his or her exclusion or deportation proceedings, he must first give reasonable notice to the juvenile's attorney.
DETENTION AND RELEASE PROCEDURES FOR JUVENILE ALIENS
(11) 8 C.F.R. 242.24(b) and the Commissioner's National Policy Regarding Detention and Release of Unaccompanied Alien Minors (National Policy). It is important to understand that family reunification is a primary objective when dealing with unaccompanied alien minors. However, when this is not possible, the minor should be released according to paragraphs 4 and 5 of the National Policy and the regulations.
(12) 8 C.F.R. 242.24(d) and National Policy. Unaccompanied juvenile aliens may be held in INS detention facilities which have separate accommodations for juveniles or in suitable state or county juvenile detention facilities for up to 72 hours if release or other more appropriate placement cannot be immediately found. Exceptions to this rule may be found in paragraph 3 of the National Policy and include juveniles who are charged with or convicted of a criminal offense, adjudicated juvenile delinquents or those with pending delinquency proceedings, escapees from other facilities, or violent/disruptive juveniles.
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(13) 8 C.F.R. 242.24(c) and National Policy. Suitable placement for juvenile aliens, beyond the 72 hour placement described above, may include ''juvenile facilities contracted by the INS, state or local juvenile facilities, or other appropriate agencies authorized to accommodate juveniles by the laws of the state or locality.'' 8 C.F.R. 242.24(c). It is the national policy that juvenile aliens be placed in child-care facilities that approximate a normal home-like atmosphere such as a group home or foster home. The appropriateness of the facility may vary with the age, maturity, or special needs of the child. However, when a situation arises, such as the sudden arrival of large numbers of smuggled juvenile aliens, other accommodations may be provided as long as the facilities meet or exceed state licensing requirements for the provision of services to dependent children. This may include placement in a state or county juvenile detention facility if the juvenile aliens have separate accommodation from the local population and are provided all the rights and privileges accorded them by regulation and law.
This memorandum supersedes any prior policy statements which conflict or appear to conflict with it.
Any questions regarding this memorandum should be directed to Mary Ruth Calhoun, Juvenile Coordinator, HQDDP, at (202) 514—4049 or Patricia B. Feeney, Deputy Associate General Counsel, at (202) 514—2895.
Chris Sale,
Acting Commissioner.
Attachments.
[Memorandum of May 14, 1995]
Subject: Detention Policy Guidance, Special Interest Cases.
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To: Regional Directors.
From: Office of the Commissioner.
Recent terrorist events, such as the World Trade Center bombing and the tragedy in Oklahoma City, have made it imperative that the Service work closely with the Federal Bureau of Investigation (FBI) in an effort to remove aliens who may be connected with terrorist organizations or activities.
In many cases, such aliens may now have been charged or convicted of charges directly related to terrorist acts, but may be amenable to removal for violations of immigration law. When such cases are brought to the attention of the Service by the FBI, it is imperative that the alien(s) be quickly located, placed in proceedings, and detained.
These ''Special Interest Cases'' should receive the same high priority for detention as criminal aliens and known terrorists, who were previously shown as the top priorities on the Commissioner's policy memorandum dated July 23, 1993, Detention Policy Guidance. The FBI will notify INS Headquarters when requesting that an alien be classified as a ''Special Interest Case'' because of an alien's connection to a terrorist organization or activities. Headquarters will then communicate and coordinate with the appropriate Regional Office for necessary enforcement actions in the field. The FBI will be requested to provide information necessary to support the alien's continued detention, for use in any subsequent bond redetermination hearing before the Executive Office for Immigration Review.
In many cases, the FBI may not be readily able to come forward with hard and specific facts to articulate criminal charges. Nonetheless, field offices must make every effort to promptly place in proceedings and detention an alien who is identified as a ''Special Interest Case.''
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Should an issue arise regarding detention space availability or resources in any of these cases, field offices should expeditiously contact their respective Regional Office to resolve the problem.
To ensure that these cases are dealt with properly, ''Special Interest Cases'' are now being added to the Detention Priority List. Please ensure that this policy and the attained revised detention priority list is circulated to all your field offices.
Specific questions regarding this policy revision can be addressed to the Office of Detention and Deportation, (202) 514—1970, Attn: Ruben Cortina or to the Office of Field Operations, Attn: James McClain.
Doris Meissner,
Commissioner.
Attachment.
DETENTION PRIORITY LIST
1. Criminal aliens, or terrorists, or ''Special Interest Cases''
(a) Aliens with terrorist history (with or without criminal conviction). This includes Special Interest Cases involving suspected terrorists who have been identified by the Federal Bureau of Investigation. (with or without convictions)
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(b) Aliens convicted of aggravated felonies (subject to either deportation or exclusion proceedings).
(c) Other convicted criminals.
(d) Alien Smuggler Identification and Deportation Project (ASID).
2. Aliens who attempt to enter or enter the U.S. in conjunction with large international, organized, criminal smuggling activities, whether subject to exclusion or deportation proceedings.
3. Other exclusion cases.
a. Entering with fraudulent documents or no documents.
b. Otherwise inadmissible.
4. Abscondees.
a. Failed to surrender for deportation.
b. Failed to appear for deportation hearing.
5. Aliens who have committed fraud before the INS, i.e., employer sanctions related fraud, fraudulent visas, fraudulent marriages, etc.
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6. Immediate border apprehension of illegal aliens.
(a) Other-than-Mexicans.
(b) Mexicans.
7. Other administrative cases. Aliens who have violated INS law or regulations, and are not encompassed in the categories above.
[Detention Policy Guidance]
District Directors, Chief Patrol Agents, Regional Administrators.
Office of the Commissioner.
The Immigration and Naturalization Service (INS) has established a detention policy and priority system to effectively carry out the INS' mandate to enforce the immigration and nationality laws of this country, as well as to comply with statutory requirements relating to criminal aliens. This memorandum will restate and reiterate the existing Service priorities under the present detention policy.
Through the powers and authorities delegated to the Attorney General under Section 242 (8 USC 1252) Immigration and Nationality Act, as amended (I&N Act), officers of the INS may arrest and take into custody any alien suspected of being in the United States illegally. Thereafter, any alien taken into custody by the INS may, pending a final determination of deportability, be continued in custody, released under bond or order of recognizance, or paroled. Thus, INS, through statutory mandate, is charged with the responsibility for detention of aliens when an alien's freedom at large represents a present danger to the public safety and security, or when the INS has reason to believe that the alien is likely to abscond.
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The INS also has detention responsibilities, under Section 235 (8 USC 1225), I&N Act, for aliens who are subject to exclusion proceedings. The I&N Act directs that every alien (other than crewmen, stowaways, and security risks who are covered by separate provisions) ''... who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.'' Thus, detention of excludable aliens is mandated by statute. This statutory authority has been upheld in each court action questioning this practice.
In order to meet INS enforcement responsibilities, District Directors and Chief Patrol Agents must ensure that appropriate discretion is exercised in making custody determinations based on Sections 242, 235, and 236 of the I&N Act, which includes statutory requirements mandating compulsory INS detention for some types of cases. It is our policy to have a uniform detention policy nationwide. The attached list sets forth detention policy in priority order. Please make every effort to follow these priorities within existing budgetary guidelines. Criminal aliens, terrorists, and aliens smuggled in conjunction with large, international, organized, criminal smuggling activities (both in exclusion and deportation proceedings) take priority in utilizing detention space; however, this does not preclude District Directors or Chief Patrol Agents from detaining lower priority cases in instances where, in their judgement, such detention is warranted by operational imperatives.
The INS is committed to a meaningful enforcement effort. However, detention funds are limited and we can only apply these detention guidelines within available INS resources and in accordance with the Congressional budget.
Chris Sale,
Acting Commissioner.
Attachment.
DETENTION PRIORITY LIST
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1. Criminal aliens and/or terrorists
(a) aliens convicted of aggravated felonies (subject to deportation or exclusion proceedings).
(b) aliens with terrorist history (with or without criminal conviction).
(c) other convicted criminals.
(d) Alien Smuggler Identification and Deportation Project (ASID).
2. Aliens who attempt to enter or enter the U.S. in conjunction with large international, organized, criminal smuggling activities, whether subject to exclusion or deportation proceedings.
3. Other exclusion cases.
(a) entering with fraudulent documents or no documents.
(b) otherwise inadmissible.
4. Abscondees.
(a) failed to surrender for deportation.
(b) failed to appear for deportation hearing.
5. Aliens who have committed fraud before the Service (i.e., employer sanctions related fraud, fraudulent visas, fraudulent marriages, etc.)
6. Immediate border apprehensions of illegal aliens.
(a) OTM's
(b) Mexicans.
7. Other administrative cases. Aliens who have violated INS law or regulations and are not encompassed in the categories above.
[Memorandum of May 7, 1996]
Subject: AEDPA Implementation Instruction 1: Amendment to the Mandatory Detention Requirement of Section 242(a)(2) of the Immigration and Nationality Act.
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To: Regional Directors, District Directors (Including Foreign), Chief Patrol Agents, Officers in Charge (Including Foreign), Chief, ODTF, Glynco, GA, Chief Patrol Agent, BPA, Glynco, GA, Asylum Office Directors, Service Center Directors, Regional Counsel.
From: Office of the Deputy Commissioner.
On April 24, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 440(c) of the AEDPA amends section 242(a)(2) of the INA governing mandatory detention of certain criminal aliens. Section 242 (a)(2) now reads as follows:
(2) the Attorney General shall take into custody any alien convicted of any criminal offense covered in section 241(a)(2) (A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), upon release of the alien from incarceration, shall deport the alien as expeditiously as possible. Notwithstanding paragraph (1) of subsections (c) and (d), the Attorney General shall not release such felon from custody.
Please note that section 440(c) of AEDPA strikes the old section 242(a)(2)(B) from the INA. The above quoted paragraph is now the entire section 242(a)(2).
The Immigration and Naturalization Service is working to adjust and clarify this provision by means of the immigration reform legislation now awaiting action by the House-Senate conference committee. Pending that action, and in order to implement the AEDPA in an orderly and thoughtful manner the following instructions should be implemented until further analysis has been completed and further instructions are issued.
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1. Aliens released prior to the amendment of section 242(a)(2) who are now subject to mandatory detention pursuant to amended section 242(a)(2) should not be taken into custody unless there have been changes in the circumstances of the case that warrant a change in custody.
2. Criminal aliens identified for mandatory detention that are encountered by INS should be detained to the extent possible. Do not, however, release currently detained noncriminals who you would otherwise continue to detain. Complete the removal process. Once the noncriminal alien is removed the detention space should be filled by a criminal alien subject to mandatory detention. Noncriminals encountered should not be detained unless there is available detention space above and beyond that needed for the mandatory detention of aliens.
3. Regarding calls from state and local law enforcement to take criminal aliens into custody, to the extent you have detention space available, you can continue to respond to those agencies in accordance with your established policies and procedures.
4. Detention space funded by user fees or unsuitable for the detention of criminals should continue to be used in the normal fashion.
Chris Sale,
Deputy Commissioner.
[Memorandum of June 11, 1996]
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Subject: AEDPA Implementation Instruction 2.
To: Regional Directors, District Directors (Including Foreign), Chief Patrol Agents, Officers in Charge (Including Foreign), Chief, ODTF, Glynco, GA, Asylum Office Directors, Service Center Directors, Regional Counsel.
From: Office of the Deputy Commissioner.
On April 24, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 440(c) of the AEDPA amends section 242(a)(2) of the Immigration and Nationality Act (INA) governing mandatory detention of certain criminal aliens. Section 242(a)(2) now reads as follows:
The Attorney General shall take into custody any alien convicted of any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), upon release of the alien from incarceration, shall deport the alien as expeditiously as possible. Notwithstanding paragraph (1) of subsections (c) and (d), the Attorney General shall not release such felon from custody.
Please note that section 440(c) of the AEDPA strikes the old section 242(a)(2)(B) from the INA. The above quoted paragraph is now the entire section 242(a)(2).
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While the statute requires detention of certain criminal aliens, in order to implement this provision in a consistent manner, and until detention capacity is available to meet the full requirements of this provision, the following supplemental instruction should be implemented until further analysis has been completed and further instructions are issued.
This instruction complements ''AEDPA Implementation Instructions #1'' issued May 7. It does not replace it.
[Memorandum of Dec. 4, 1995]
Subject: Instructions for the Detention, Placement, and Release of Chinese Juveniles.
To: Regional Directors, District Directors.
From: Office of the Deputy Commissioner.
All unaccompanied Chinese juveniles apprehended by the Immigration and Naturalization Service (INS) after November 10 shall be processed in accordance with the instructions in this memorandum. These new instructions are intended to improve the safety of unaccompanied Chinese juveniles and to ensure their presence at deportation or exclusion hearings.
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The immigration officer or Border Patrol agent who apprehends the juvenile will process the juvenile following the usual procedures. However, it is important that the officer obtain as much detailed biographical information as possible at this time. The juvenile's photograph and fingerprints should also be obtained. The juvenile shall then be placed in a local juvenile detention facility or juvenile contract facility.
The deportation officer will immediately notify the juvenile coordinator in the Regional Detention and Deportation Office of the juvenile's date and place of detention, name, a number, and all known biographical information. The Regional coordinator will then notify Headquarters Detention and Deportation (HQDDP). The biographical information will then be forwarded to the Community Relations Service (CRS), who will provide it to the Voluntary Agencies (VOLAGS), U.S. Catholic Conference or the Lutheran Immigrant and Refugee Services. These agencies will perform home studies on each Chinese juvenile. As part of the home assessment, HQDDP will check proposed sponsor's records in Deportable Aliens Control System (DACS), Central Index System (CIS), and National Crime Information Center (NCIC) to screen out any sponsors with criminal records. Checks of each sponsor's file will be done by District Offices to confirm the family relationships. The VOLAGS will notify HQDDP through CRS of the results of each home study. The HQDDP will notify the Regional juvenile coordinator of the approved sponsor who will, in turn, notify the District. No Chinese juvenile is to be released to a sponsor without an approved home study being completed.
The reason for this restriction on the release of Chinese juveniles is to prevent juveniles from being released to possible smugglers. It is important that the biographical information be obtained quickly, and the home study commenced expeditiously, to avoid the long-term detention of Chinese juveniles who may be safely released to responsible relatives. After release, Chinese juveniles must be scheduled for a routine monthly call-in by INS to ensure their well being and to verify enrollment and actual attendance at school. During the interview, the juveniles should also be questioned to determine if they or their family members have been contacted, threatened, or intimidated by organized crime groups.
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Before any Chinese juveniles claiming to be ages 15, 16, or 17 are placed in a juvenile shelter, a forensic dental examination shall be performed on them. Individuals claiming to be 14 years and under, who, in the opinion of the processing officer, appear their age may be assumed to be juveniles. Further medical examinations may be administered in doubtful cases. Once the examination is completed and indicates that the individual is indeed a juvenile, placement in a juvenile shelter may take place. District Offices will consult with the Regional Offices as to which shelters accept Chinese juveniles and have available space. The juvenile must be escorted by an officer if he or she is transferred by commercial airline. New Chinese juvenile arrivals will not be placed in foster homes, unless the juvenile is of tender years (under 10) and that determination will be made on a case-by-case basis.
District officials must keep in close contact with each shelter's Director and caseworkers. One deportation officer shall be named as the INS point of contact for the shelter and should physically visit the shelter no less than once weekly. The HQDDP and Regions must be notified of any problems or questions that arise at the shelters. The juveniles' cases must be closely followed and updated in DACS on a regular basis. The information for the weekly juvenile report to HQDDP must be provided timely and accurately to the Regional Offices.
For those Chinese juveniles who are presently in foster homes, the District deportation officer must keep in close contact with the caseworkers. Contact with the case worker on each case must be made no less than biweekly. Deportation officers should discuss the current status of the juvenile's INS case and also elicit the caseworker's opinion of the juvenile's stability in the foster home. Information necessary for obtaining travel documents should be obtained through scheduled call-in to the District office.
The files of Chinese juveniles who reach the age of 18 while in foster care shall be reviewed by a journeyman deportation officer and District counsel to determine whether the person has ever indicated concern over coercive family planning practices in China. The policy and procedure are described in the September 28, 1994, memorandum entitled ''Chinese Juveniles Reaching Majority While in Foster Care.'' Individuals who meet the criteria set forth in the memorandum will be sent a call-in letter through their caseworker and taken into secure adult custody.
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All offices must be sure that all Chinese juveniles in custody (juvenile detention facilities, shelters, or foster homes) are served with the appropriate charging document--either an ''Order to Show Cause'' in deportation proceedings or a ''Notice to an Applicant for Admission Detained for Hearing Before an Immigration Judge'' in exclusion proceedings. The charging document must also be filed with the appropriate office of the Executive Office for Immigration Review. These juveniles are in INS custody, and their hearings must be scheduled on the detained calendar.
When a Chinese juvenile has received a final order of deportation, the case will be reviewed at the District, and, unless the juvenile has applied for relief that is imminently available, the juvenile will be removed from the foster home or shelter and placed in a juvenile detention facility until physically removed from the United States.
Any juvenile who is apprehended after escape from a foster home, shelter, or any other INS custody will be placed in ''hard'' juvenile custody (i.e., juvenile detention facility).
If you have any further questions concerning this matter, please contact Kenneth Eldwood in the Office of Field Operations at (202) 307—1983 or Elizabeth Herskovitz in HQDDP at (202) 514—1970.
Chris Sale,
Deputy Commissioner.
From: Commissioner Usins Washington DC
To: All INS Regional Administrators, All INS District Directors, All INS Office in Charges, All INS Border Patrol Sector Headquarters, IOA GLYNCO, IOA ARTESIA, BT, UNCLAS, HQEXM.
Priority: RODDP: ERO, CRO (DAL/TWN), WRO.
Attn: Juvenile Coordinators.
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Bened: All CPA's, DIDIRS, DIDDP, OIC'S (All XCEPT Foreign) Director, of Training, INGLN/INART.
Subject: Unaccompanied alien minors placed in juvenile shelter facilities, foster care and other detention facilities.
This communication will clarify and restate policy memo dated 13 December 1991 concerning the detention and release of unaccompanies alien minors. The 13 December 1991 policy memo was developed to comply with the Flores v. Reno settlement and remains in effect. Unaccompanied alien minors should continue to be detained and/or released in accordance with this policy. All offices are reminded of the requirement to place such juveniles in licensed juvenile facilities within 72 hours of apprehension. Regional juvenile coordinators have been designated in RODDPS to facilitate and expedite such placement.
It is essential these cases be placed on the detained alien docket and calendared expeditiously before the immigration court. Juveniles in shelters, foster homes or juvenile detention facilities are in INS custody and must be treated as expeditiously as other detained docket cases. District counsel should be requested to press for final orders in absentia in cases where subjects have absconded from INS funded shelters, foster placement or juvenile detentions facilities. When unaccompanied alien minors placed in juvenile shelters, foster care or juvenile detention facilities abscond, DIDDPS should follow standing procedures for the escape of detained aliens, as well as those procedures developed for the Chinese Juvenile Foster Place Program. Field officers are reminded that all other requirements of Flores are still binding. Field offices are responsible to promptly report all cases of unaccompanied alien minors held in custody longer than 72 hours regardless of the type or location of custody arrangements.
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Questions should be directed to the respective regional juvenile coordinators in RODDPS.
Regional juvenile coordinators may be reached as follows:
Central (Dallas) 214—767—7062, Gale David.
Eastern (Burlington) 802—660—5010, Shirley Parfitt.
Western (Laguna Nigel) 714—643—4225, Dona Coultice.
Headquarters 202—514—1970, Elizabeth Herskovitz (Acting).
Please refer any questions or placement requirements to the appropriate regional juvenile coordinator.
[Date: Dec. 13, 1991]
Subject: National Policy Regarding, Detention and Release of Unaccompanied Alien Minors.
To: Regional Operations Liaison Officers, District Directors, Chief Patrol Agents.
From: Office of the Commissioner.
The purpose of this memorandum is to standardize the procedures nationwide regarding the detention, release, and treatment of unaccompanied alien minors in INS custody. This memorandum should be distributed to all INS field personnel.
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The policy of the Immigration and Naturalization Service (INS) regarding the detention and release of unaccompanied alien minors is as follows:
(1) All alien minors(see footnote 6) apprehended by INS or turned over to the custody of INS by state or local law enforcement agencies are to be processed for deportation or voluntary departure in accordance with 8 C.F.R. 242.24(g) and (h).
(2) While awaiting processing, alien minors may be held by INS authorities in INS detention facilities having separate accommodations for juveniles or, if such accommodations are unavailable, in suitable state or county juvenile detention facilities.(see footnote 7)
(3) No alien minor may be held in a detention facility, whether an INS facility or otherwise, longer than 72 hours unless the alien minor:
(a) is charged with or convicted of a criminal offense, other than entry without inspection;
(b) is adjudicated a delinquent, or is the subject of a pending delinquency proceeding;
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(c) has engaged in violent or extremely disruptive conduct which requires that he or she be held in a secure facility for the safety of himself or herself and/or others;
(d) is an escapee from another facility;
(e) is an unrepresented Salvadoran and an alternative placement is unavailable in the district where the juvenile came into INS custody (in which case the alien minor may not be transferred from the district for at least seven days); or
(f) cannot be moved for other extraordinary and compelling reasons. In this case, permission from the Juvenile Coordinator or Assistant Commissioner for Detention and Deportation must be obtained before detaining the alien minor for longer than 72 hours.
(4) Except for (3) above, an alien minor shall be released from INS custody, in the following order of preference, to:
(a) a parent, legal guardian, or adult relative (brother, sister, aunt, uncle, grandparent);
(b) a responsible adult designated by the parent or legal guardian in a sworn affidavit;
(c) a licensed child-care facility(see footnote 8) including a foster ***.
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[U.S. Department of Justice, Dec. 5, 1988]
Standards for Detention of Aliens at Ports of Entry.
All District Directors, All Port Directors, Western.
Office of the Regional Commissioner, Western.
Recent events have highlighted the need for a Western Regional policy setting out standards for the detention of aliens at ports of entry. Attached is a policy developed for Western Region POE's, based on American Correctional Association guidelines. This policy will be placed into effect immediately. All District Directors should consult with Port Directors in their respective Districts in order to ensure receipt of this memo and compliance with the attached guidelines.
Any questions or comments regarding the attached should be directed to Mr. J.T., Jr., Assistant Regional Commissioner, Examinations at FT3 796—4572.
Harold W. Ezell,
Regional Commissioner.
Attachments.
PORT OF ENTRY DETENTION POLICY
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The policy for detention of aliens in holding/detention cells at ports of entry is stated below. All procedures will be strictly followed. Failure to do so may result in disciplinary action.
A. Who may be detained and for how long?
1. Only persons who appear to be in good health may be detained. Each alien will be asked if he or she has any known medical conditions or is on medication prior to being placed in detention. No one who is pregnant, on medication, or appears ill, will be detained in a holding cell. Minors under the age of 18 will be segregated from adults. Males and females will be segregated also.
2. Aliens will be detained for short durations only, while a case is being prepared for presentation for prosecution, pending transfer of custody to another branch or agency, or while arrangements are being made for longer term detention. Short-term detention is defined as four hours or less. If it is necessary to hold an alien longer than four hours, arrangements must be made for transfer to a facility equipped to handle longer-term detention. Only ports of entry which have specifically applied for and have been approved for 24-hour detention may hold an alien more than for hours.
3. Anyone who exhibits unusual behavior, such as hostility or depression, will be kept under constant surveillance, and the Port Director will decide whether to continue detention or release the detainee.
B. Search procedure.
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1. All detainees will be given a patdown search for weapons before being placed in a detention cell. If the patdown search indicates that a more thorough search is needed the reason for an extended (i.e., strip search) should be presented to the supervisor for written approval. The alien will then be thoroughly searched in the presence of another officer.
2. All items will be removed from pockets. All sharp objects, such as pens, pencils, knives, nail files or other objects which may be used as weapons or to deface property will be taken from the alien as well as sharp objects of clothing, such as belt buckles, jewelry, etc. All rope-like objects, such as shoelaces, belts, necklaces, scarves, or any other objects which the alien could use to injure him/herself will also be taken. All items will be placed in a properly-marked plastic ''seal-a-bag'' which will be placed in a secure area. Form G—589 will be used to support the chain of custody and proper accounting of personal property.
C. Basic procedures and detention logs.
1. Each port of entry will maintain a log for each detention/hold cell.
2. Log records must include at least the name, age, sex, nationality, file number, date and time admitted, date and time transferred out, and final disposition. The log will also have a place for comments and a place to indicate times of visual checks. A sample log is attached.
3. Information relating to each alien will be entered into the log immediately upon placing the alien in a cell/hold room.
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4. For cells having intercom equipment, the intercom will be checked to make sure it is in working order and that sounds from the detention cell can be heard at all times from the monitoring station. All necessary adjustments to the system will be made.
5. Each detention cell/hold room in use will be visually monitored every 15 minutes on a random basis, with notation and initialing in the appropriate detention log. Any unusual behavior or complaints will be noted in the detention log in the ''comments'' section.
6. No smoking by detainees or immigration officers will be allowed in the detention cells.
7. No officer will enter a detention cell with a sidearm. No immigration officer is to enter an occupied detention cell unless another officer is stationed outside the cell door ready to respond if needed.
D. Fire and/or Building Evacuation.
1. In case of fire and/or building evacuation the shift supervisor will be responsible for removing detainees from detention.
2. Each port of entry will develop a written statement of detention evacuation particular to that POE and will include it in the port emergency contingency plan. The evacuation plan will be prominently posted at the port.
E. Medical Emergencies.
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1. In cases of medical emergency arising during the detention of any person, the appropriate paramedic, ambulance or other emergency service will be called immediately upon determination that an emergency may exist.
2. An immigration officer will accompany the detainee and remain with the detainee until doctors determine whether the illness will necessitate hospitalization. If the detainee is not hospitalized, the officer will remain with detainee until treatment is complete and then escort the detainee back to the port of entry for detention. If the detainee is hospitalized, the officer will return the port of entry.
3. The area port director will be notified immediately, regardless of hour, anytime an ambulance or paramedic team is called for a detainee.
F. Communications.
1. The shift supervisor will determine, considering the length of detention and security risks, whether or not the detainee will be allowed to communicate by telephone or in person with any other person.
[Memorandum of Apr. 17, 1987]
Subject: Instructions to calculate time in detention for detained aliens.
To: Assistant Regional Commissioner Eastern, Western, Northern, Southern.
From: Detention and Deportation Division (CODDP).
The following instructions are for your information and dissemination to field offices under your jurisdiction.
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There is apparently some confusion in certain field offices and service processing centers as to how to correctly calculate the time an alien spends in detention. This is occurring in general terms and especially in reporting long term detention. These instructions are intended to clarify this situation and make all reports consistent nationwide.
When an alien is arrested by officers of this Service, that day will be counted as the first day of detention. It does not make any difference where the alien is actually held. It could be a service processing center, contract facility, or a local jail. If the alien is subsequently transferred to another facility, the receiving facility will continue to use the day the alien was arrested as the initial admission day. If at some point the alien is released on bond, order of recognizance or escapes, and is subsequently re-arrested, the new arrest will start the process all over again.
Aliens serving sentences in local, state or federal facilities after being convicted of a crime, are not in the custody of the Service and will not be counted even if an I—247 detainer has been lodged against the alien. However, after the alien has served the sentence and the Service takes custody, the day the alien is released from the institution and is transported to a Service facility, or a facility or institution used by the Service, is the first day of detention. In certain cases, INS officials will request the institution in which the alien is serving the sentence to hold the prisoner until transportation can be arranged. In these cases, the day the alien becomes the responsibility of the Service is the first day of detention.
In summary, when counting the number of days an alien has been in continuous custody at Service expense, the initial admission date is the same as the arrest date.
Joan C. Higgins,
Assistant Commissioner, Detention and Deportation.
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[Memorandum of July 23, 1986]
Subject: Meal for detained aliens.
To: All District Directors, Chief Patrol Agents, Officers-in-Charge, Western Region.
From: Robert M. Moschorak, Associate Regional Commission Operations, Western.
A recent incident involving a detained alien calls for a clarification of Regional policy regarding the feeding of aliens in Service Custody.
Any alien in Service custody will be given three meals, at regular meal times, during each 24-hour period. No more than 14 hours between the evening meal and breakfast meal and a minimum of two hot meals every 24 hours shall be allowed, when practical.
Transportation schedules to onward offices or for removal will be considered in determining whether it is advisable or practical to dispense hot meals.
All expenses incurred should be charged to program 1251--Subobject 057.
It is emphasized that such funding is not discretionary.
All offices will ensure that sufficient resources are allocated for the care and maintenance of aliens already in Service custody prior to incurring any additional detention obligations.
Any questions regarding this memorandum should be addressed to RODDP at FTS 795—6558.
Tab K
[Memorandum of Aug. 19, 1996]
Subject: Inspections Program Guidance on Uniform Leather Gear and Related Items.
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To: Associate Commissioners, Regional Directors, District Directors, Chief Patrol Agents, Officers in Charge, Port Directors.
From: Office of Programs.
This memorandum conveys Immigration and Naturalization Service (INS) Inspections Program guidance regarding the wearing of gun belts, holsters, and related equipment such as handcuffs. This guidance applies equally to all INS employees who perform immigration inspections. Such employees include: (1) all permanently employed, full and part-time Immigration Inspectors; (2) all categories of Other-Than-Permanent (OTP) Immigration Inspectors; and, (3) Officer Corps personnel from other INS programs when performing immigration inspection duties.
In order to assure its widest possible dissemination, this memorandum should be locally reproduced and distributed to all INS employees who perform immigration inspections. It may also be displayed on bulletin boards in Inspections Program work locations.
Wearing of gun belts, holsters, and related accessory equipment
With the exception of the handcuff case discussed below, gun belts, holsters, and related accessory equipment (such as, but not limited to, ammunition carriers, flashlight holders, etc.) should only be worn by INS personnel authorized to carry a firearm while on duty and only at work locations where carrying a firearm is authorized. Gun belts, holsters, and related accessory equipment should be worn as one complete uniform item. When a uniform trouser belt or uniform skirt belt is used to secure the above equipment, all such equipment shall be attached to the uniform belt. All holsters and related accessory equipment, except handcuff cases, should be removed from the uniform belt whenever a firearm is not carried. Uniform trousers or uniform skirts should not be worn without an authorized uniform belt.
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Handcuffs
Handcuffs may be carried when a firearm is not worn. If carried, handcuffs should not be worn in a manner where any portion of the handcuffs are tucked into gun belts, uniform belts, or clothing. Nor may handcuffs be attached to a uniform trouser belt or a uniform skirt belt, or to a gun belt, by means of gun belt ''keeper'' fasteners. Only those handcuff cases which completely enclose, conceal, and secure one set of handcuffs are authorized.
Please ensure that all INS personnel performing immigration inspections in your jurisdiction are aware of this memorandum. Supervisory and/or managerial officials should ensure that their subordinates and familiar with the contents of this memorandum.
If you have any questions or require additional information regarding the issues discussed in this memorandum, please contact Assistant Chief Inspector Jeffrey M. Burgos, INS Office of Inspections (HQINS), at (202) 514-6917.
T. Alexander Aleinikoff,
Executive Associate Commissioner.
Tab L
[Memorandum of Dec. 3, 1996]
Subject: Inspections Program Firearms Policy Issues and Procedures.
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To: Regional Directors, District Directors, Officers in Charge, Port Directors, Administrator, National Firearms Unit.
From: Office of Programs.
The current Immigration and Naturalization Service (INS) Firearms Policy was signed on August 8, 1996, and redesignated as Section 20.012 of the INS Administrative Manual (AM 20.012).(see footnote 9) The following additional policy guidance is provided to supplement the information contained in AM 20.012 regarding the carrying of firearms during the performance of official duties.
This memorandum applies to all INS employees assigned to perform immigration inspections. Such employees include: (1) all permanently employed, full- and part-time Immigration Inspectors (IIs); (2) all categories of Other-Than-Permanent (OTP) IIs; and, (3) Officer Corps personnel from other INS programs when performing immigration inspection duties.
Please ensure that this memorandum is distributed to all INS employees assigned to perform immigration inspections. The memorandum shall also be prominently displayed on bulletin boards in Inspections work locations.
Wearing of firearms during the performance of official duties(see footnote 10)
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Under subsection 5.A of AM 20.012, authority to carry firearms is specifically limited to certain immigration officers who have successfully completed Basic Immigration Law Enforcement Training as defined in subsection 3.C of AM 20.012. Such immigration officers are authorized and designated to exercise the power conferred by Section 287(a) of the Immigration and Nationality Act (INA) to carry firearms, during duty and non-duty hours, provided they are individually qualified by training and have demonstrated their ability to handle and safely operate the firearms that they are permitted to carry, maintain proficiency in the use of firearms, and adhere to the provisions of the policy governing the use of force.
Under subsection 6.B.(1) of AM 20.012, immigration officers meeting the requirements of subsection 5.A generally are required to carry a Service issued or approved handgun, and may be required to carry other firearms, during duty hours in the performance of their normal duties. However, subsection 6.F of AM 20.012 provides that the authority of either a single officer or a group of officers to carry a firearm during duty and/or non-duty hours may be withdrawn or restricted by Authorizing Officials when the withdrawal or restriction is in the best interests of the Service and/or the officer(s). The Office of Programs (HQPGM) and the Office of Field Operations (HQOPS) have determined that the on-duty carrying of firearms by INS employees assigned to perform immigration inspections is inappropriate in certain work-related environments.
Pursuant to this determination and in accordance with subsection 6.F of AM 20.012, the following policy guidance is effective immediately regarding when and where INS employees assigned to perform immigration inspections may carry handguns.(see footnote 11) This policy modifies subsection 6.B.(1) by limiting, as described below, the general requirement that all INS employees performing immigration inspections carry handguns.(see footnote 12)
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Land border and/or sea ports-of-entry (POEs)
The carrying of a handgun during duty hours is mandatory for all INS employees assigned to perform immigration inspections at land border and/or sea POEs, consistent with training and qualification requirements, except as provided under subsections 6.B(2)—(4) of AM 20.012.
Air POEs
All INS employees assigned to perform inspections of commercial aircraft passengers at air POEs are generally prohibited from carrying firearms while performing primary and/or secondary
inspections. Also, such employees are generally prohibited from carrying and transporting firearms to and from their duty stations except as authorized below:
A. A District Director may, in the exercise of discretion, authorize the carrying of firearms and the transporting of firearms to and from their duty stations by Supervisory Immigration Inspectors (SIIs), acting SIIs, and Senior Immigration Inspectors (SRIs). This authorization shall: (1) be in writing; (2) specify, by name and position, authorized employees; and, (3) be based upon a written determination by the District Director that the carrying of firearms by such employees is required during duty hours in order to maintain control of and/or security within the INS inspections area.
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B. The carrying of firearms and the transporting of firearms to and from their duty stations by INS employees assigned to perform immigration inspections may also be authorized by the District Director, or his or her designee(see footnote 13) during those times when such employees are required to perform official duties which involve job-related law enforcement functions where the carrying of firearms is usually and generally required. Examples of such duties include, but are not limited to, conducting special enforcement related operations and the performance of detention related (custodial and transport) functions.
This authorization shall: (1) be in writing; (2) specify, by name and position, authorized employees; (3) specify the nature of the assignment; and, (4) specify, within a reasonable approximation, the amount of time required to complete the assignment. An official memorandum shall be prospectively prepared whenever it can be reasonably anticipated that it will be necessary to exercise this exception. In situations where the memorandum cannot be prepared prospectively because of exigent circumstances, the memorandum shall be prepared immediately upon completion of the assignment for which the carrying of firearms was authorized.
Furthermore, INS employees are generally prohibited from carrying firearms when assigned to perform inspections of small and/or private General Aviation (GA) aircraft passengers. Also, such employees are generally prohibited from carrying and transporting firearms to and from their duty stations except as authorized below:
A. A District Director may, in the exercise of discretion, authorize the carrying of firearms and the transporting of firearms to and from their duty stations by such INS employees, when the District Director has determined that articulable circumstances exist where the safety of INS officers and/or others may be in question. The authorization shall be in writing and be based on a written determination that articulable circumstances exist where the safety of INS officers and/or others may be in question. The authorization shall:
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(1) include a specific description of the articulable circumstances upon which the exception is being authorized;
(2) specify, by name and position, the employees authorized to carry firearms while assigned to perform immigration inspections of passengers arriving in the United States by means of small and/or private GA aircraft; and, (3) specify whether the exception is location specific or is applicable to all small or private GA immigration inspections conducted within the District's jurisdiction.
Each INS employee granted a written firearms exception shall be given a copy of the signed memorandum for his or her records. The original memorandum shall be maintained in an AM 20.012 subject file maintained at the office of the INS employee who authorized the exception. A copy of the signed memorandum shall also be transmitted to the District Firearms Control Officer, as designated pursuant to subsection 4.G(1) of AM 20.012.
All written exceptions shall be valid for no more than a one-year period from the date granted. District Directors shall review each exception no less than sixty calendar days prior to its expiration and either formally: (1) authorize its extension; or, (2) advise affected employees that the exception will not be renewed. All decisions of the District Director relating to exceptions shall be disseminated via an official written memorandum. In cases where a decision not to renew a particular exception is made, the District Director shall notify all affected employees in writing: (1) that the exception will not be renewed; and, (2) of the reason(s) for not renewing the exception.
Copies of all District firearms exceptions policy memoranda shall be forwarded through official channels to the: (1) respective Regional Office of Inspections; (2) National Firearms Unit; (3) Chairperson of the Firearms Review Board; (4) Executive Associate Commissioner for Programs; and, (5) Executive Associate Commissioner for Field Operations for informational, review, and/or concurrence purposes, as appropriate.
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Firearms security
In accordance with subsection 33.B of AM 20.012, District Directors shall ensure that, pending availability of individual secure gun lockers or gun safes, sufficient locked firearm storage containers are available and properly utilized at work locations. Sufficient firearms storage containers shall be available to accommodate all personnel assigned to a particular work location during those times when the work location is staffed at its maximum. All firearms storage containers shall: (1) be of at least 18 gauge steel; (2) be permanently affixed to the building; and, (3) have individualized key lock mechanisms (no combinations locks.)
All firearms which are present at work locations, but not worn during work periods, shall be unloaded and secured in a locked storage container. When not in use, and pending the availability of individual secure gun lockers or gun safes, firearms shall be secured in a locked storage container. No firearm shall be stored in anything other than a gun locker, a gun safe, or a locked storage container. In accordance with subsection 33.A or AM 20.012, each INS officer authorized to carry a firearm is responsible for taking reasonable measures to ensure the safe storage or his or her issued firearm(s) and ammunition. All local needs regarding weapons protection shall be identified by District Directors in coordination with District Security Officers.
Development of district inspections firearms-related memoranda
In accordance with subsection 4.F(1) of AM 20.012, District Directors may develop and distribute written implementation guidance and procedures, consistent with AM 20.012 and this memorandum, relating to their particular jurisdictions. Copies of District firearms-related memoranda(see footnote 14) shall be forwarded through official channels to the: (1) respective Regional Office of Inspections; (2) National Firearms Unit; (3) Chairperson of the Firearms Review Board; (4) Executive Associate Commissioner for Programs; and, (5) Executive Associate Commissioner for Field Operations for informational, review, and/or concurrence purposes, as appropriate.
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Training requirements
As set forth in subsections 23.B and 24 of AM 20.012, District Directors shall take appropriate steps to ensure that all INS personnel under their jurisdiction assigned to perform inspections receive recurrent training on firearms issues in conjunction with the quarterly firearms qualifications.
Please ensure that all INS personnel assigned to perform immigration inspections in your jurisdiction are aware of this memorandum. Supervisory and/or managerial officials shall ensure that their subordinates are familiar with, and comply with, the contents of this memorandum.
If you have any questions or require additional information regarding the issues discussed in this memorandum, please contact Assistant Chief Inspector Dominica Gutierrez, INS Office of Inspections (HQINS), at (202) 305—2969.
The Office of Field Operations concurs with this memorandum.
T. Alexander Aleinikoff
Executive Associate Commissioner.
[Memorandum of July 24, 1996]
Subject: Information and Evidence Requested in Investigations.
To: Management Team, Regional Directors, District Directors (Foreign & Domestic), Chief Patrol Agents, Service Center Directors, Administrative Center Directors, Asylum Office Directors.
From: Office of the Commissioner.
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In a June 21 memorandum, I informed you of the outcome of the Department of Justice, Office of the Inspector General (OIG), investigation of allegation relating to a Congressional delegation's visit to Miami in June 1995. Included in the Executive Summary of the investigative report which accompanied my memorandum was a recommendation addressing cooperation in investigations.
My main purpose here is to reaffirm and draw your attention to the Service's absolute commitment to accuracy and thoroughness in responding to investigative organizations' requests for information and evidence. The timely, proper resolution of allegations of misconduct on the part of Service employees is critically important, not only to Service employees and management, but to the public they serve. Each of us is responsible for ensuring that requests for information and evidence in the course of investigations of misconduct be satisfied promptly, accurately, and completely. Anything less--and particularly any purposeful interference with, obstruction of, or dishonesty in misconduct investigations--must not and will not be tolerated.
From time-to-time, as in the Miami case, we receive from investigative organizations requests that we search for and provide any and all information in Immigration and Naturalization Service records pertaining to particular, sometimes broadly defined, matters. All of us who are involved in conducting and providing the results of such searches must ensure that we act thoughtfully and with total thoroughness and candor. Attached is a list of locations in which responsive records may be found; you should consider it a starting point when dealing with such requests.
I want the substance of this message communicated through the chain of command to every INS employee. I have chosen that method over direct correspondence to each employee in order that you and your subordinate managers, in relaying the message, will have the opportunity to stress its importance and provide any appropriate, additional instructions.
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Doris Meissner,
Commissioner.
Attachment.
Examples of Locations Which, Depending on the Nature and Scope of the Particular Investigative Organization Request, May Have to Be Searched for Responsive Immigration and Naturalization Service Records
Alien files
Central Index System
All official office files, including correspondence files, and reports
Individuals' appointment calendars
Working files maintained by individuals
Electronic mail (''cc:Mail'') files, including archive files
Individuals' notes of meetings, telephone calls, and the like
Computer diskettes (''Floppy discs'') maintained at individual work stations
Computer ''hard disc drives'' on individual work stations and network servers
Computer backup files
Records of telephone messages
Time and attendance records, including overtime records
Facsimile machine logs
Vehicle logs
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Records of individuals' official travel
Individual and Government charge card (American Express) records
Government cellular telephone records
Imprest fund and morale and welfare fund records
Weapon issuance and maintenance records
Ammunition issuance records
Contracting giles
NOTE. This listing should not be construed as direction that files be created and/or maintained if such are not otherwise done in the normal course of business. Neither should it be construed as direction to search each location in response to every request. Rather, the listing is provided solely to suggest possible locations of responsive records, some of which may not be immediately obvious.
[Memorandum of July 26, 1996]
Subject: Instructions for Medical Clearance of Aliens at Service Processing Centers and Contract Facilities.
To: Regional Directors, District Directors.
From: Office of the Deputy Commissioner (HQDEP).
All Immigration and Naturalization Service (INS) officers and supervisors are reminded of the medical clearance requirement of form I—834 Medical/Psychiatric Alert. This form is used by health providers to notify INS that an alien has been examined and has been found to present a psychiatric or medical problem that either requires that he be cleared medically before being removed by INS or that he may require a medical escort.
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Before any alien who is detained at a SPC or contract facility is released from INS custody, whether through removal from the United States or release through bond, order of recognizance, or admission into the United States, his records must be reviewed to ensure that if the Medical/Psychiatric Alert has been filed the alien is medically cleared before release.
No violations of this requirement have been reported recently, but because of the possibility of serious impact on the public at-large from infectious disease this reminder is issued.
If you have any further questions concerning this matter, please contact Elizabeth Herskovitz of HQDDP at (202) 514—1970, or Dr. Eugene Migliaccio of U.S. Public Health Service at (202) 514—3339.
Chris Sale,
Deputy Commissioner.
[From the INS Communique, August 1996]
Commissioner's Message: Inspector General's Report Teaches Hard Lesson
The past 3 years have brought extraordinary change to INS. We have worked closely with the Congress to bring unprecedented resources to INS in a period of increased national attention to immigration issues. These greater resources bring a greater responsibility to use them in a manner that earns public confidence in our ability to enforce and administer the immigration laws. The performance and professionalism of every INS office play a central role in building and maintaining that confidence.
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Accepting the challenge of carrying out the Administration's bold immigration initiatives, INS adopted a strategic plan 2 years ago to take us into the next century as a modern, professional agency. As we have worked to rebuild the integrity of the immigration system, we have never lost sight of the overriding importance of maintaining the integrity of the Service as an organization and of the individuals who carry out its important work. In diligent pursuit of that plan, INS employees have made extraordinary contributions, and have served our country with dignity and courage.
By now, many of you have read the news stories about the report of an investigation by the Office of the Inspector General of the Department of Justice of events surrounding the visit in June 1995 of a congressional delegation to INS facilities in Miami, FL. (See page 5 of this newsletter.) The Inspector General's report includes deeply troubling findings about actions taken by a number of senior INS officials. These findings undermine the public trust that we have worked hard to develop. Immediately after I read the report, I detailed to nonsupervisory duties four senior field managers who were in critical positions of authority at the time of the congressional visit. These personnel actions do not imply that a judgment has been made regarding misconduct on the part of these managers nor are they part of any disciplinary process. However, the actions are appropriate to the positions and responsibilities these managers held in light of the Inspector General's findings.
At my request, the Department of Justice will decide on appropriate disciplinary action against any individuals found to have engaged in misconduct as described in this report.
In addition, I sent an outside management review team to the Miami district office to address changes that may be needed in the way that office fulfills its mission. Finally, I have ordered a full review of specific INS policies and practices that were called into question by the inspector general's report.
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We should learn many lessons from this. Among other things, the report teaches a hard lesson about INS' place of prominence in the national arena. We are enjoying tremendous growth in a period of government downsizing because the work we do is recognized as vital to our national interest. With that recognition, however, come heightened public scrutiny and legitimate expectations that we will do our work effectively and with integrity. The lessons we must learn from the report, and the steps we take as a result, will help us not only to meet those expectations but to meet our own high standards in better ways. We must not shrink from our resolve to build the modern, professional Service that I am confident we can be.
Doris Meissner,
Commissioner.
[Memorandum of July 17, 1995]
Appendix 3 of IG Report
Subject: Follow-up on allegations pertaining to 6/10 congressional visit.
To: William B. Slattery, Associate Commissioner, Field Operations Headquarters, through Official Channels.
From: Office of the District Director, Miami, Florida.
On July 14, 1995, we were asked by your office to clarify some points raised in our original document of July 13 (specifically, in Allegation #6, paragraphs 2 and 3). I trust that the following information will be helpful. Detailed itineraries are also available from the detention and deportation staff upon request.
On June 9, 1995, 36 aliens were transferred by bus to Monroe County jail in Key West, due to lack of space at Krome. These aliens had been apprehended by the Investigations unit the afternoon hours of the day before, during the execution of criminal search warrants as part of ''Operation Tarmac.'' Staff assigned to this bus run included two detention enforcement officers from Krome and two investigators in a separate vehicle. Bag lunches were prepared by the food service staff at Krome and placed on the bus to feed the aliens. They were held pending a determination by the Investigations unit whether any would be needed as witnesses in any criminal or administrative proceedings. On being advised that they were not, twenty-seven (27) of them subsequently requested voluntary departure, and were brought back to Krome on June 19 for removal. The remaining nine (9) requested hearings and subsequently bonded out, six directly from Key West and one from Krome.
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On June 10, 1995, 45 aliens were moved on one bus. Bag lunches were prepared by the food service staff at Krome and placed on the bus to feed the aliens, in an amount sufficient for the entire trip. Staff assigned to the first leg of the bus run (to North Florida) included two detention enforcement officers and one supervisor, all from Krome. The aliens continued on the second leg (from North Florida to New Orleans) escorted by detention officers from Tampa and Orlando. Three officers rode the bus and two more followed in a separate vehicle.
Of these 45 aliens, twenty (20) had been scheduled for transfer to New Orleans, to arrive on June 13, 1995, pursuant to plans made well before the Congressional visit. Because they were being transported by bus (the Service aircraft was not made available to us), it was necessary to stage them, rather than attempt a straight-through transport. Prior to departure, five (5) cases were added to the scheduled 20, in the hope of securing for ourselves those additional five bedspaces for local use, once transferred out. All 25 were staged at Jackson County Jail, arriving the night of June 10 and departing the morning of June 13. The first 20 cases were accepted by New Orleans District on June 13; however, they refused to accept the additional five cases from us, and we were obliged to accept them for return to Krome on June 14.
The remaining twenty (20) on that bus were criminal aliens, whom we had picked up from a variety of institutions throughout the State. They were removed from Krome to prevent problems between them and the non-criminal, administrative detainees who form the largest portion of our caseload. (It is important to note that Krome is primarily a user-fee [administrative exclusion case] funded facility. Thus, criminal alien detention is generally achieved through placement in non-Service detention facilities.) Nineteen (19) of the criminal aliens were later brought back on June 14, for court appearances and consular visits prior to deportation. This is not unusual; in fact, returns for such purposes are inescapable because both the Immigration Court and the foreign consulates are in Miami. The remaining alien was deported directly from jail via Miami airport; all processing had been completed and travel documents had been obtained.
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Walter D. Cadman,
District Director.
[Memorandum, July 13, 1995]
Appendix 2 of IG Report
Subject: Union allegations pertaining to 6/10/95 congressional visit.
To: William B. Slattery, Associate Commissioner, Field Operations Headquarters, through official channels.
From: Office of the District Director, Miami, Florida.
As requested, we have prepared this memorandum in response to the specific allegations made in the June 27, 1995 letter from Local 1458, American Federation of Government Employees to Representative Elton Gallegly, Chair of the Congressional Task Force on Immigration Reform. In preparing our memorandum, we have relied upon program managers and supervisors to carefully--indeed, scrupulously--review all available statistics, overtime bills, detail records, and other documents in order to provide a factual, empirical basis for each particular response.
ALLEGATION 1--LEVEL OF STAFFING AT MIAMI INTERNATIONAL AIRPORT (PAGE 1, PARAGRAPH 5)
The Assistant District Director for Inspections, the Port Director, and the Deputy Port Director were on hand to make presentations to the delegation, at my request. I believed it to be both necessary and appropriate for these officials to be available to answer any matters relating to the operations under their control and direction. However, putting aside those officials, seven inspectors and three supervisors were assigned to Miami International Airport on overtime during the congressional visit. They were assigned as escorts for the delegation, which district management had been told in advance might include as many as 45 representatives and support staff. This was done to preclude taking inspectors off the primary line--as you are aware, Inspector staffing of the primary and secondary areas at Miami International Airport during the peak summer season has been a major concern for some time, of the District, of the Service, and of airport authority and airlines officials.
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The overtime assignments were made on 1945 Act; none were on 1931 Act. When neither the local congressional representatives (Lincoln Diaz-Balart or Ileana Ros-Lehtinen), nor additional aides appeared as anticipated--and insofar as the media representatives were escorted by Dade County employees--the seven inspectors were put to work on the primary line and released at 5:00 p.m. The total overtime cost for this initiative was $1,042, including productive time spent on primary inspections. Comparatively, the total 1945 Act overtime cost for Saturdays during the third quarter of Fiscal Year 1995 was $10,195, with the number of assignments averaging 36 during the afternoon hours.
ALLEGATION 2--HARD SECONDARY CELL POPULATION (PAGE 1, PARAGRAPH 6)
Secondary inspection logs reflect that a total of 14 people were detained in holding cells for the entire 24-hour period on June 10. Two males were detained at Terminal E during the delegation's visit. The delegation viewed both cells at Terminal E during the time that they were detained and even asked questions about the nature of their violations after observing them (one was a criminal alien with an outstanding warrant of arrest and the other was an exclusion case). The breakdown for the day is as follows: two from 6:00 a.m. to 10:30 p.m. (when the return flight was scheduled) and eleven from 6:30 p.m. to midnight (after the delegation had departed) at Terminal E and one male from 11:00 a.m. to 3:00 p.m. at Terminal B.
ALLEGATION 3--REMOVAL OF WEAPONS, HANDCUFFS AND HOLSTERS (PAGE 2, PARAGRAPH 2)
It is important to state for the record, that the officers in question are Immigration Inspectors, not ''agents.'' In accordance with longstanding, written, Service policy, airport inspectors are not permitted to carry firearms while working primary inspection; hence, there is no rationale for wearing a gun belt or an empty holster. With regard to handcuffs, it is and has been District management's position that they should be contained in the appropriate leather cases--not dangle loosely from pants or belts. This expectation is borne solely from a desire to preserve the professional appearance of this cadre of uniformed officers. After all, they represent a foreign visitor's first contact with an official of the United States government. Officers were reminded of these and other routine uniform standards before the congressional visit.
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ALLEGATION 4--LACK OF PRIOR KNOWLEDGE OF DELEGATION'S VISIT (PAGE 2, PARAGRAPH 3)
The Deputy District Director and Assistant District Director, Inspections met with management officials at Miami International Airport at 1:30 p.m. on June 8 to discuss the upcoming congressional visit. I joined them at approximately 3:00 p.m. During that meeting, the supervisors who were present were instructed to ensure that all employees adhered to uniform standards and that the highest levels of professionalism were maintained during the visit. We advised supervisors that we did not know how large the delegation would be, but that we would like escorts available to guide the guests through the facility and allow them to speak with inspectors if they chose to do so. The Deputy District Director also made it very clear that this day was to be ''business as usual,'' so that the delegation could witness a typical day at the airport, including any problems which might arise.
On June 9, I was contacted by union president Michael Wixted through electronic mail indicating his desire to make a presentation to the visitors. (Copies of our e-mail exchanges are attached.) While my decisions were not to his liking, there is no truth to the allegation that employees were not advised in advance. The purpose in ensuring that supervisors at the airport, and at Krome, were apprised was to ensure, in turn, that they spoke to their employees of the upcoming visit and our expectations of professional grooming and demeanor.
ALLEGATION 5--THREAT OF ARREST OF UNION PRESIDENT (PAGE 2, PARAGRAPH 3)
Attached you will find copies of memoranda concerning the incident referred to in this paragraph. Although they were submitted in response to another matter, their relevance is self-explanatory. What they clearly indicate is Mr. Wixted's disregard of our prior exchange of e-mails, and of my directives.
ALLEGATION 6--PAROLE AND MOVEMENT OF DETAINEES AT KROME (PAGE 2, PARAGRAPH 5)
It is established practice, especially when the population exceeds comfortable levels, to transfer aliens, between Krome and other Service detention centers when available, and non-Service detention facilities otherwise. The Service and the Department of Justice have, in fact, taken a strong posture in litigation on this matter in recent years, to preserve the Attorney General's prerogatives to move aliens as necessary to maintain appropriate health and safety levels at detention facilities. We did nothing with an eye toward ''deceiving'' the members of the Task Force; neither, however, did we hold up ordinary movements simply in anticipation of their arrival. (Had we done that, there is little doubt in my mind that we would have been accused of grandstanding and deception in an effort to overplay our need for additional bedspace and resources.)
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On the dates in question, two groups of aliens (specifically, criminal aliens) were moved. The first group (20 aliens) was transferred to New Orleans pursuant to plans made well before the Congressional visit. They were staged at a county jail upstate on the way, due to the length of the trip and the fact that New Orleans only takes in new cases on certain days of the week. The second group (20 aliens) consisted of criminal aliens who were placed in non-Service detention to prevent possible problems between them and the non-criminal aliens who form the largest portion of our detained caseload. Some were later brought back for court or consular visits prior to deportation; this is not unusual. In fact, because the Immigration Court and the foreign consulates are in Miami, proper, such temporary returns for such purposes are inescapable.
Additionally, a group of aliens was transferred to Monroe County jail (located in Key West), due to lack of space at Krome. These aliens (approximately 46) had been apprehended and detained as the result of our Investigations unit's ''Operation Tarmac'' (approximately 46 aliens). Most of them requested voluntary removal, and were subsequently brought back to Krome for outstaging and removal.
As for the allegation that we deported people, that is our job. People are deported from Krome every day. Of a total of 172 deported during the third quarter of FY 1995, 21 were deported during the week preceding the congressional visit.
Of the aliens released from custody on the dates in question, 58 were paroled pursuant to the guidelines contained at 8 CFR 212.5, which is a normal daily occurrence. None were criminals. An additional three were released on bond, which is also a routine procedure. Two were removed under voluntary departure and two juveniles were transferred to Boystown. All of them had medical clearances, established identities and intended domiciles.
ALLEGATION 7--STAFFING LEVELS AT KROME (PAGE 3, PARAGRAPH 1)
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No additional detention or inspections staff (local or detailed, including either Orlando or Tampa) was assigned to work at Krome during the visit. One additional maintenance employee was on duty in case any problems arose with the physical plant during the visit. The Tampa and Orlando detention staff rendezvoused with Krome personnel upstate to transport the groups being moved to their onward destinations. This is routine procedure when transfers by land are undertaken, to reduce stress on vehicles and personnel.
While it is true that we have experienced resource shortages at Krome--particularly in the recent past, with its successive waves of migrant influxes--we have made no attempt to hide these constraints from officials of any branch of government. And, it is important to note that, with newly authorized positions granted to us in the last several months, sixteen (16) new detention enforcement officers have entered on duty since April 1, 1995 and seven (7) more have been selected and are in various stages of the clearance process.
Officers are currently scheduled for twelve-hour shifts to ensure the safety and security of the detained population. Once the full complement of new hires enters on duty and is properly trained, the necessity for extended shifts will be reevaluated.
We have been tremendously conscious of conditions at Krome. In response to the Commissioner's request for District Directors to perform an on-site inspection of SPCs within their jurisdiction, I prepared a previously forwarded memorandum (dated July 9, 1995), in which I outlined fully our concern for the safety, health and welfare of our employees and the detained population alike. The fact that we have continued to operate under increasingly difficult conditions is a credit to our employees.
ALLEGATION 8--PAROLE OF ALIENS, GENERAL (PAGE 3, PARAGRAPH 2)
Reduction of the population is periodically necessary when levels exceed our bedspace or detention staff capacities. While we are funded for a level of 210 at Krome, we have routinely exceeded that number, particularly since the Administration's Cuba policy change of May 2, 1995; the reasons for this were described in detail in my memoranda to the Commissioner of May 4 and May 9, 1995. During this week alone, we have released, deported, or transferred over 90 people for the purpose of maintaining our detained population at a safe and comfortable level (this was articulated at length in my July 9th memorandum). Population reduction is something which occurs periodically and which can be documented by viewing the history of Krome. We have exceeded this week the number of releases which occurred on June 9 and 10--with no visitors, Congressional or otherwise, expected.
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ALLEGATION 9--STATISTICAL DATA KNOWLEDGE AND ETHICS (PAGE 3, PARAGRAPHS 3—4)
Statistical data was presented to the delegation in the form of a Fact Sheet that was provided to them by Pam Barry, Director of Congressional Affair, as part of a briefing book. That fact sheet went through extensive review at Eastern Region and at Headquarters, as well as in Miami, before reaching its final form. While we tried to anticipate a number of questions, there are always those which require further research. The actual third quarter figures for Miami International Airport (including Terminal B) are: 705 exclusion cases processed, 1,027 voluntary withdrawals, and 64 VWPP refusals, for a total of 1,796 malafide interceptions.
CONCLUSION
I cannot express to you my shock and chagrin at this turn of events. I can assure you, unambiguously, that the congressional delegation was not shown a ''Potemkin Village'' when they visited any of the sites in this district--whether at Miami International Airport or at Krome Service Processing Center. We did our best, within the time constraints imposed by one afternoon, not only to welcome the Task Force but to show them our offices as they truly exist, and to explain to them our often complex and difficult work. We made no attempt whatever to lead anyone to believe that we are not frequently overworked in relation to the available staff; what we did try to show was that, despite those complexities and workloads, on the whole our employees labor to do their jobs with dignity and pride.
It is no secret that relations between the local union and management within the District are, and have been, strained for some period of time, and that some of the local's membership consists of disaffected employees. However, lest you come to the conclusion that I am innately anti-union, and to ensure that you obtain a balanced perspective of myself and other management officials, I encourage you to speak with Regional Director Carol Chasse, who was involved in a partnership meeting with the national union president of the AFGE—INS Council, Mr. Chuck Murphy and his executive vice president, Mr. Jim McIntyre, at the time this situation was brought to light. I believe she can reassure you that this is the work of selected individuals and is not the overall perspective of the bargaining unit in the Miami District.
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I regret that this incident has marred what I felt was a successful visit on the part of the congressional delegation and I look forward to any inquiry in order to exonerate officials of the Service (including myself and others within the District) from accusations of willfully deceiving the Congress.
Walter D. Cadman,
District Director.
Attachments.
41—726
1997
DECEPTION OF A CONGRESSIONAL TASK FORCE DELEGATION TO MIAMI DISTRICT OF THE IMMIGRATION AND NATURALIZATION SERVICE
HEARING
before the
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
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FEBRURY 27, 1997
Serial No. 11
Printed for the use of the Committee on the Judiciary
41—726
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, JR.,
Wisconsin
BILL MCCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
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ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, JR., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff/General Counsel
JULIAN EPSTEIN, Minority Staff Director
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Subcommittee on Immigration and Claims
LAMAR SMITH, Texas, Chairman
ELTON GALLEGLY, California
SONNY BONO, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
ED BRYANT, Tennessee
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
CORDIA A. STROM, Chief Counsel
EDWARD R. GRANT, Counsel
GEORGE FISHMAN, Counsel
MARTINA HONE, Minority Counsel
C O N T E N T S
HEARING DATE
February 27, 1997
OPENING STATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
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WITNESSES
Colgate, Stephen, Assistant Attorney General for Administration, Justice Management Division, U.S. Department of Justice
Meissner, Doris, Commissioner, Immigration and Naturalization Service
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Colgate, Stephen, Assistant Attorney General for Administration, Justice Management Division, U.S. Department of Justice: Prepared statement
Gallegly, Hon. Elton, a Representative in Congress from the State of California: Prepared statement
Meissner, Doris, Commissioner, Immigration and Naturalization Service:
Prepared statement
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Inspector General's statement concerning INS Director of Congressional Affairs Pamela Barry
APPENDIX
Letter (and attachments) from Commissioner Doris Meissner, Immigration and Naturalization Service, to Chairman Lamar Smith, Subcommittee on Immigration and Claims, dated February 24, 1997
(Footnote 1 return)
Many issues addressed in the policy and this memorandum have never been addressed in reported decisions or the law remains unresolved. Courts would step outside their proper role if they formulated detailed policies with respect to the procedures governing deadly force; in contrast, the Department has the discretion to determine what the policy should be and to provide guidance to its employees with regard to these solemn issues. Cases arise in procedural postures_typically civil tort or civil rights actions, or motions to dismiss or overturn criminal charges or convictions_in which a wrongful act on the part of the government may not lead to recovery or sanctions. As a result, the court often does not reach the question of whether the use of force was wrongful.
(Footnote 2 return)
The leading Fourth Amendment cases in this area are Tennessee v. Garner, 471 U.S. 1(1985) and Graham v. Connor, 490 U.S. 386(1989).
(Footnote 3 return)
Many issues addressed in the policy and this memorandum have never been addressed in reported decisions or the law remains unresolved. Courts would step outside their proper role if they formulated detailed policies with respect to the procedures governing deadly force in arrests, prison riots, and escapes; in contrast, the Department has the discretion to determine what the policy should be and to provide guidance to its employees with regard to these solemn issues. Cases arise in procedural postures_typically civil tort or civil rights actions, or motions to dismiss or overturn criminal charges or convictions_in which a wrongful act on the part of the government may not lead to recovery or sanctions. As a result the court often does not reach the question of whether the use of force was wrongful. Relatedly, the judicial deference paid to decisions of correctional officials in use-of-force situations, coupled with immunity doctrines, may at least as a theoretical matter result in upholding (or at least failing to sanction) conduct that might not have been undertaken as a matter of policy.
(Footnote 4 return)
The leading Eighth Amendment case, arising in the context of force used during prison unrest, is Whitley v. Albers, 475 U.S. 312 (1986). The courts have not fully resolved the demarcations among the Fourth Amendment, the Fifth Amendment's due process clause, and the Eighth Amendment in limiting the use of force following an arrest. See, e.g., Graham v. Connor, 490 U.S. 386 (1989); Albright v. Oliver, 114 S. Ct. 1340 (1994) (arrest without probable cause, no force involved); Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir.), cert. denied, 115 S. Ct. 539 (1994) (analyzing shooting of detainee under Fourteenth Amendment due process); Wright v. Whiddon, 951 F.2d 297 (11th Cir. 1992).
(Footnote 5 return)
The Supreme Court recently ruled in favor of the INS in Reno v. Flores, 113 S.Ct. 1439 (1993), a case regarding the detention and release of juvenile aliens in the Western Region. Although the Court ruled in our favor, the decision was premised upon certain observations and presumptions. Specifically, in 1987 the federal district court approved a Memorandum of Understanding (MOU) regarding the conditions of detention of juvenile aliens. In agreeing to the MOU, the INS committed itself to complying with certain standards to be maintained in housing, staffing, education, counseling, visitation, etc. At several points throughout its written decision, the Supreme Court stated its presumption that the INS is in compliance with the consent decree in all respects. Attempting to prove otherwise has become the Flores plaintiffs next area of challenge to the INS. Although the MOU must be complied with only in the Western Region, it should also be adhered to in the other regions.
(Footnote 6 return)
An alien minor is defined as a male or female foreign national, under 18 years of age, who is the subject of exclusion or deportation proceedings under the Immigration and Nationality Act (Act) or has an application for asylum pending before the INS.
(Footnote 7 return)
A suitable juvenile detention facility is defined as a secure facility designated for the occupancy of juveniles. Juveniles charged with delinquent acts are held in these facilities for a temporary period while awaiting adjudication of their court cases. Every effort must be taken to ensure that the safety and well-being of the alien minors detained in these facilities are satisfactorily provided for by the detention staff at the juvenile detention facilities.
(Footnote 8 return)
A child-care facility is defined as a facility that provides care, training, education, custody, treatment, or supervision for a minor who is not related by blood, marriage, or adoption to the owner or operator of the facility, whether or not the facility is operated for profit. Licensed means approved by the appropriate state agency. An INS detention facility or a state or county juvenile detention facility is not a child-care facility under this definition.
(Footnote 9 return)
All references to the INS Firearms Policy in this memorandum relate to the August 8, 1996, edition of AM 20.012.
(Footnote 10 return)
An earlier memorandum, dated August 19, 1996, and entitled Inspections Program Guidance on Uniform Leather Gear and Related Items, states that ''. . . gun belts, holsters, and related accessory equipment (such as, but not limited to, ammunition carriers, flashlight holders, etc.) should only be worn by INS personnel authorized to carry a firearm while on duty, and only at work locations where carrying a firearm is authorized. . . .'' The memorandum also states that ''. . . [h]andcuffs may be carried when a firearm is not worn . . .'' and specifies the manner in which handcuffs shall be worn if carried. Please refer to that memorandum for additional information.
(Footnote 11 return)
Generally, only an INS issued or INS approved personally owned handgun shall be carried.
(Footnote 12 return)
The information and instructions contained in this memorandum relating to the carrying of firearms by INS employees assigned to perform immigration inspections shall be applicable during duty hours.
(Footnote 13 return)
Any such designee shall be named in writing by the District Director, with a specific description of the authority conveyed to the designee.
(Footnote 14 return)
Including all firearms exceptions policy memoranda.