ICE, DRO Policy and Procedure Manual (DROPPM) Update Chapter 17.15 Failure to Cooperate (Jul. 11, 2006)

Ojficepj De/elf/ion - ' ~1tfOW'II. ~ u.s. D ... rc~J.I.'''H''.IIa'' Senrily 423 I StnaI, NW WI!ibinp1n, DC 2M36 U.S. Immigration and Customs Enforcement MEMORANDUM FOR: D. eputy AS.SiSfj'.: Field Office Di !prs. ..~ \ ........ D .... i.re •... c. t ... o.' .... , ~,' , , \ ' , ' e ~ FROM: SUBJECT: JohnP. Torres' ~ Acting Ditectgl" 1 . OR.O Policy and Procedure Manual (DROPPM) Update: Chapter 17.15 Faihlie to Cooperate 17.15 Failu~ 19 Coopera •. '. relJlQvalperiod may be extended for an (!Iiehrefusingto, (fa"~-'J~Mm' '1' or cooperate in the removal process._ . >ff the willful refusal to cooperate Persists and the alien becomes subjeCt to criminal .

(b) Definitions . .E2rm..IIIII' Mempfafldumof In~estigation: the generic form on which to record evi~~l1ce. ofthesubJeCf$ unwillin:gness to cooperate in efforts to secure travel documents. . . Form 1~229(a), vJarningfor,;F~ilureto'Depart: advises the alien of the cOnsequences of di~fegardihlJ.th~hterm~ of t~~. fin$JorlferOf removal, i.e., failing to depart,Which include the need to cq~per~te,~ithirvmi~r~tion .auth()ri*ie~. (See . . ' '. .... httD6;!Jdhsoll'!rJe'_'AOY~hllcommunjty,Jhtml?lndQx=43&commynity=ICE&id=2 011880003 fo(~ttoh.:lin~h.copy.~:thelorm.) , . . . ',', ~, , I InstruCtion Sheet to 'l3etaineE!:a~vises alien of the need to cooperate withimmigration authoritiesseeking,{o.effecHlislher removal, lists actions the alien must take, and indicate~conseqlJEtnCE?Sof~~ufComplial1ce. (See . http.;lldh§()n8~,dhs·~D9£ti14btmVmmunity,ihtml?index=43&community=t¢E&id=2 0118,8bOO3foi "1struction She~!t();;oetainee.) ". . .......

7 . .. _ ...... . '{, ,r .. . Notice of Custody Review: pe r_ notification of a custody review after 30 days, affording the alien sufflCienf~ to provide documents supporting release from ICE custody, and to demonstrate that he/she does not pose a flight risk or threat to the community. (See h o • for Notlce of Custody Review.) - r . .. Notice of Failure to Comply: a Jetter informing the alien that failure to assist in efforts to obtain travel documents or effect removal has caused DRO to keep him/her in custody and extenq the removal period; a,1.soEidvises of POSSjtlle criminal prosecution.

(See . IE&i =2 . fF·)?inx=4 .. mun . . . . ...... ···tl for Notice of FailLJnito ComptY~) (c) Procedures. (1) First 90 Days. Verify that the order of removal is administratively final.

During the 90 day rem()val period; you must make every effor:t to remove the alien. For proper case management: • • • • II· Send out a travel document request Serve the alien with Form 1-229 (a) and Instruction Sheet to Detainee no later than the 30th day of the removal period; Serve the Notice of Failure to Comply if the alien has not cooperated with efforts to effect hislher removal as provided in the 1-229 (a) and Instruction Sheet to Detainee by the 60th day of the removal period; Serve the alien with a Notice of Custody Review no later than the 60th day of the removal period; Follow-up with consulat~ regarding travel document issuance on a weekly baSis ( s e e_ ; Follow-up with the ali.en regularly if the consulate or embassy has requested'addit(onal inforrrlEi.tiontoprocess the travel document request; If a question of identity aris~s, iriterview the alien to .elicit detailed 2!2S!:!Phi~linformafion:A~m.jnister the Mir~nda warnings (seelll!lll _ . of the Law of Arrest, search and Seizure Manual, M-69); notify the.alien's legal representative: ._ .. .. • • If the identity question persists, contact outside sources to establish the alien's identity, e.g;, request~, Embassy, Interpol, etc. ( s e e _ ; n in,vesti ations through the' U.S. Contact the HQ Travel Document Unit no later than the 75th day of the removal period ' document do not expect local issuance of the travel Serve the Failure to Comply notice every 30 days until tlie Cilien comes into compliance. ' Once the Notice of Failure to Comply has been served, the90-day removal period is s.IJspended. The 90-DaYPost Order Custody Revi~w is still required. Once the alien begins to cooperate, the 90.:.day removal period resumes.

Once th~aH~,r is in "faili~re to comply" status, you continue to, ' jurisdictioQ (do not forwardtoHQDRO for a Zadvyd~sreview, Instead, yOu will pfepa~e paperwork for possiblecrirninal p'l ros'l ecultlOr bytt)e Office of the U:~. Attorney. ProCeed asfoliows: J' Cr~ateaprosecution folder to, hold the . • {:md ,aoy other material you wi,U use to persuade theAssistant U:S. AttorIiey (AUSA)to accept the ca~e for prosecution; maintain this folder insigethe alien's A-file; "Ut;:I.cIUl) of the criminal allegations on the G-16SC, M~morandum of nVE~stlga1:1on, citing everY instance of the alien's refusal to cooperation and " process in chronological order; {For a sample, • Using this record, prepare a n.:a,"I ... r~tir n'D,.",nn'C!tr~lting the alien's failure to cooperate; ,,(Fora sample, • Present.the G-166C and declaration to the Office of the U.S. Attothey; 'AlJ§~~JII~~ptS the case, prepare an affidavit. (Fora sample, see You may seek assistance from local counsel.' You may also AUSA to discuss the s'pecifiCsofthe case; " ' decUries to prosecute, request a written declination with 'R'iol'n,'t'I'the AU SA's name, date, and rea,~n for declining on You willconttnue using the G-166C to docum~lit.every failure the alieo's departure frqm the United St~tes. • Continue efforts to remove the subject and continue documenting the prosecution folder and the A-file.

At such time as the alien is released from detention, send a complete copy of the prosecution file to HODRO. HODRO will monitor cases declined for prosecution for possible follow-up with the Criminal Division of the Executive Office of United States Attorneys. • Keep a record of all cases you refer to the Office of the U.S. Attorney, including the disposition of each. (Every Field Office is required to keep statistics on all such referrals.) (2) Initial 90-Day Removal Period Has Expired. Continue to practice proper case management ..

Good case management positions ORO to pursue criminal prosecution and defend habeas corpus. petitions in federal courts. Proper case management requires that you: • • Issue the alien Form 1-229(a) and the Instruction Sheet to Detainee, which specify, in writing, the actions/obligations with which he/she must comply in a specified timeframe; Issue subsequentl-229(a) and Failure to Comply notices. every 30 days until the alien cooperates or takes reaso"able steps to do so within the specified timeframe (usually 30 days). Examples of noncompliance include refusing to complete a travel document application, refusing to be interviewed by the consulate or embassy, providing false biographical information; • Describe on the Failure to Comply notice how the alien has not cooperated and clearly state what the alien must do to come into compliance. This documents that the alien has been notified of his/her responsibilities to cooperate with removal, has been given another opportunity to cooperate, and has been reminded of the penalties of .noncol11pliance; • Use ther _ and the comments screen in DACS to record dates and times ofihterviews lNiththe alien; ..

Make regular attempts to verify biographical information through outside sources, e.g., family mel11bers, friends, the State Department Desk Officer for that country, and the U.S. Embassy; • Despite the alien's lack of compliance, continue to contact consular or embassy personnel to persuade them to issue a travel document absent the alien's co~ .•. ·c>n. COOrdin. at.e a .. ct.· io.ns with Headquarters Travel Document Unit (see - . -> . For information on custody reviews for uncooperative aliens, see _ , above.