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The September 11 Detainees:
A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks

June 2003
Office of the Inspector General


CHAPTER THREE

CHARGING OF SEPTEMBER 11 DETAINEES

The INS arrested hundreds of aliens in New York City and across the country in the aftermath of the September 11 terrorist attacks, most often while working as part of a Joint Terrorism Task Force. While some of these arrests resulted in criminal charges, the vast majority of September 11 detainees were charged with civil violations of federal immigration law, including: 1) staying past the expiration date on their visas, 2) entering the country without inspection, or 3) entering the country with invalid immigration documents.

Service of the charging document by the INS - called the "Notice to Appear" or NTA - provided the detainees with their first clear description of the charges they faced. Because the Department initially opposed bond for all September 11 detainees, service of the NTA and associated documents provided detainees their first opportunity to seek release by requesting a bond re-determination hearing before an Immigration Judge.27

In this chapter, we examine the INS's provision of NTAs for September 11 detainees held on immigration violations. We also identify the policies, procedures, and timeliness of the INS's charging decisions, and we examine reasons for the delay in charging experienced by some detainees. In addition, we discuss efforts by officials at INS Headquarters to review and approve charging documents for all September 11 detainees and the impact this Headquarters review had on the timely serving of NTAs and associated documents.

I. INS REGULATIONS AND POLICIES GOVERNING THE TIMING OF CHARGING DECISIONS

  1. The Charging Determination

    After an alien is arrested, the INS must decide whether to charge the alien with violating federal immigration law.28 If the INS decides that immigration charges are warranted, it initiates a removal proceeding by serving the NTA on the alien and the Immigration Court. The NTA must include the alien's specific acts or conduct alleged to be in violation of the law. While an INS agent arrests the alien, an INS District Director, or his designee, makes the charging determination.29

    Prior to the September 11 attacks, the INS was required by federal regulation to make this charging determination within 24 hours of arresting an alien. See 8 C.F.R. 287.3(d). Within days of the September 11 attacks, the INS found that meeting this 24-hour timetable would be difficult, given the number of aliens arrested and the prospects of significantly more alien arrests.

    As a result, on September 17, 2001, the Department issued a new regulation that changed the time by which the INS had to make the charging determination to 48 hours after the alien's arrest.30 The revised regulation contains an exception to this 48-hour rule (an exception not contained in the previous version), which provides that, in the event of an emergency or other extraordinary circumstances, the charging decision could be made within an additional reasonable period of time. The regulation does not define "extraordinary circumstances" or "reasonable period of time." It is important to note that the regulation contains no requirement with respect to when the INS must notify the alien or the Immigration Court about the charges - that is, when the NTA must be served on the alien. The regulation only addresses the timing of when the INS must make its charging determination. The INS does not record the date or time the charging determination is made.

  2. Serving the Notice to Appear (NTA)

    Once the INS makes the decision to charge an alien with an immigration violation, it serves the NTA on the alien and the Immigration Court in the jurisdiction where the alien is confined.31 The NTA must be served on the alien in person where practicable, but also may be served by mail.

    According to the INS General Counsel's Office, no statute or regulation explicitly states when the INS must serve the NTA on the alien or the Immigration Court. However, prior to the September 11 attacks, the INS's general practice was to serve the NTA on aliens within 48 hours of their arrests. According to Michael Rozos, Chief of the Long Term Review Branch in the INS's Office of Detention and Removal, after September 11 the INS established a goal of serving NTAs on aliens within 72 hours of arrest. Rozos said this goal was not established by regulation, but rather was based on "commonly recognized" INS practice. The INS keeps a record of the date the NTA is served.

II. SERVICE OF NTAs ON SEPTEMBER 11 DETAINEES

Table 1 describes when NTAs were served on the September 11 detainees. According to INS data, 59 percent of these detainees (452 of 762) were served NTAs within 72 hours of their arrest, in accordance with INS practice. In the remaining 192 cases for which data was available, the INS took more than 72 hours to serve NTAs.32 Of these 192 detainees, 71 percent (137) were arrested by the INS in the New York City area. On average, September 11 detainees arrested in New York City and housed at the MDC received their NTAs 15 days from the time of their arrest.

Table 1
Number of Days Between Arrest Date and
NTA Served Date for September 11 Detainees
Number of Days Frequency Percent of Total
3 days or less 452 59.3%
4 - 10 days 71 9.3%
11 - 17 days 43 5.6%
18 - 24 days 30 3.9%
25 - 31 days 24 3.1%
More than 31 days 24 3.1%
Excluded from analysis 118 15.5%
Total 762 100%*
* Rounded

Table 2 summarizes the timing of charges filed against all 762 September 11 detainees and for sub-sets of detainees in the OIG sample groups from the MDC and Passaic.

Table 2
Timing of NTA Service
Service of NTA All Sept. 11
detainees
MDC
detainees
Passaic
detainees
Detainees charged
in 3 days or less
452 (59.3 %) 24 (45.3%) 22 (33.3%)
Detainees charged
in more than 3 days
192 (25.2%) 14 (26.4%) 18 (27.3%)
Detainees with
excluded values
118 (15.5%) 15 (28.3%) 26 (39.4%)
Total 762 (100.0%) 53 (100.0%) 66 (100.0%)

III. REASONS FOR DELAY IN SERVING NTAs

  1. Pending Criminal Charges

    According to INS data, 12 of the 192 September 11 detainees served with NTAs more than 3 days after their arrests also were charged with a criminal offense. The INS is not required to serve an NTA on an alien charged with a criminal offense until the alien's criminal case is resolved. For example, one September 11 detainee arrested in New York City on October 1, 2001, pursuant to a PENTTBOM lead, was charged with passport fraud, marriage fraud, and alien smuggling. The detainee was transported to the MDC on October 3, 2001. On April 3, 2002, the INS served an NTA on the detainee for the immigration violation of overstaying a nonimmigrant visitor visa for business purposes. The following day, the detainee was sentenced in the Eastern District of New York to "time served" on the alien smuggling charge. The detainee was removed from the United States on May 30, 2002. Because the detainee was in custody based on a criminal indictment, the INS was not required to serve his NTA at the time of his initial arrest.

    We identified 5 September 11 detainees who the INS served with NTAs an average of approximately 168 days after their arrest. In some of these cases, we found appropriate reasons for the delays - for example, two of the detainees were charged with both immigration and criminal offenses, but were held on the criminal offense and therefore were not in INS custody. Consequently, the INS did not serve NTAs on these two detainees until the BOP or the U.S. Marshals Service transferred custody of the detainees to the INS. However, according to INS data, once this transfer occurred, the INS still took 36 and 11 days, respectively, to serve NTAs on these detainees.

  2. Delays Caused by Logistical Disruptions in New York City

    The closure of the INS New York District Office at 26 Federal Plaza and the suspension of overnight delivery service to lower Manhattan after the September 11 attacks contributed to delays in NTA service. The detainees' A-Files were stored at the National Records Center in Lee's Summit, Missouri, and the INS New York District had to request copies of the detainees' A-Files from the Records Center so that INS agents in New York City could determine the appropriate charges.32 With the disruptions in lower Manhattan, delivery of the A-Files was often delayed. Initially, in an attempt to speed up the review process, employees from the INS New York District and the National Records Center tried to select specific documents from a detainee's A-File to fax to the INS New York District. However, INS New York District Counsel said this process was not effective because attempting to describe legal documents over the telephone proved inadequate for the INS New York District to determine their significance to the detainee's case.

  3. Delays Caused by INS Headquarters Review of NTAs

    We found that the INS policy requiring all charging documents for September 11 detainees to be reviewed and approved by INS Headquarters also may have contributed to the delay in serving NTAs on many detainees. On September 15, 2001, the INS issued an Operational Order (discussed in Chapter 4) that directed all INS field offices to transmit copies of September 11 detainee case documents, including NTAs, to the National Security Unit (NSU) at INS Headquarters. Another Operational Order issued the following day stated that no charging documents should be served until the "facts and circumstances of the case" were reviewed and approved for legal sufficiency both by the NSU and the INS's Office of General Counsel.33 Prior to the September 11 attacks, INS attorneys in the District offices had reviewed and approved NTAs for legal sufficiency.

    According to Pearson, the INS Executive Associate Commissioner for Field Operations, INS Commissioner James Ziglar decided that NTAs for all September 11 detainees had to be approved at INS Headquarters because of some "glaring errors" in detainee charging documents in several early detainee cases. Pearson said that three or four September 11 detainees were charged with incorrect violations of immigration law in the first week after the terrorist attacks. While he said that these errors were not "pervasive," the INS nonetheless was concerned that a potential terrorist could be released from INS custody because of erroneous charges on an NTA, and therefore wanted INS Headquarters officials to review all NTAs before they were served on the detainees.

    Pearson's order required that the INS New York District fax a copy of the detainee's often-voluminous A-File to INS Headquarters. INS New York District Counsel told the OIG that the volume of documents being sent to INS Headquarters often caused facsimile machines at the INS New York District Office to break down. These facsimile transmission problems, coupled with the additional NTA review process at INS Headquarters, contributed to the delays in serving NTAs on the September 11 detainees.

    On November 28, 2001, the INS rescinded the requirement that INS Headquarters review all NTAs for September 11 detainees and returned this responsibility to INS field offices. The chief of the INS's National Security Law Division said that by November 28 the volume of September 11 detainee arrests had diminished and that centralized NTA review no longer was required.

  4. Delays Caused by Transfers of September 11 Detainees

    The INS was forced to close its Service Processing Center (SPC) on Varick Street in Manhattan after the terrorist attacks due to a loss of electricity and utilities. While detainees could no longer be housed in the Varick Street SPC, they could still be processed there. The INS's Eastern Region Office, which has jurisdiction over both the New York and Newark Districts, determined that the Newark District had available bed space in contract county jails to house immigration detainees formerly held at the Varick Street SPC. On September 11, 2001, New York District staff transported to the Newark District all 244 aliens who had been held at the Varick Street SPC. According to INS data, approximately 200 more detainees arrested in connection with September 11 leads in New York City were subsequently transferred to the INS Newark District from September 11, 2001, through May 31, 2002.

    Facility determinations for September 11 detainees initially were made by the INS New York District, but beginning on September 23, 2001, these decisions required the approval of INS Headquarters.33 After INS Headquarters took over facility determinations for September 11 detainees, all detainees arrested in New York City were transported to the Newark District unless INS Headquarters informed the New York Office that a specific detainee should be held at the MDC. The INS deferred to FBI officials regarding decisions about whether detainees should be designated "high interest" and therefore housed in high-security facilities such as the MDC.34

    INS policy requires that NTAs and other legal documents be prepared by the arresting INS officer. Consequently, September 11 detainees arrested in the New York City area should have been processed for any immigration violations in the New York District, and Newark District officials should have received NTAs for all transferred detainees when the detainees arrived in the INS Newark District.35 However, the New York Assistant District Director for Investigations told the OIG that the requirement for INS Headquarters review of all NTAs delayed this process, and many detainees already had been transferred to the INS Newark District by the time the INS New York District received INS Headquarters's sign-off on an NTA.

    Because the detainees' A-Files did not accompany the detainees when they were transferred to the INS Newark District, the INS Newark District was unaware that the NTAs had not been served and was unable to take timely actions to ensure that the NTAs were served within the INS's 72-hour target.

    The INS detention standards also require that the NTA and the alien's A-File or a substitute "temporary file" accompany a detainee being transferred to another INS detention facility, including facilities like Passaic under contract with the INS to house federal immigration detainees. We found that the INS New York District's failure to transfer all of the necessary paperwork for September 11 detainees arrested in New York but transferred to Newark resulted in inconsistent and untimely service of NTAs on the detainees.

    Because the INS New York District transferred September 11 detainees to the INS Newark District before receiving INS Headquarters's approval of charging documents, NTAs for many of the September 11 detainees had not been served by the time of the transfer. Yet, both the INS New York and the Newark Districts assumed that the NTAs had been served. INS Newark District officials who processed the transferred detainees' cases told us that they assumed that NTAs had been served. The INS New York Assistant District Director for Investigations similarly said the New York District assumed that INS Headquarters had provided the INS Newark District with a copy of the approved NTAs when, in fact, it had not.

    In October 2001, INS Eastern Region officials became aware of the case-processing problems associated with detainees transferred from the INS New York District to the INS Newark District. Beginning October 5, 2001, the INS Eastern Region detailed INS detention officers and investigators from other INS districts to help address the increased workload of the Newark District. This eventually alleviated some of the processing delays, although INS Newark District officials said it took time to work through the backlog of cases while new cases arrived at the INS Newark District.

IV. OIG ANALYSIS

The INS does not keep a record of when the charging determination is made for aliens charged with immigration violations. This makes it impossible to determine how often the decision is made within the 48-hour time period required by federal regulations. For the same reason, it is impossible to determine how often the INS took advantage of the "reasonable time" exception to the 48-hour requirement, an exception that is based on "extraordinary circumstances."

We found that the INS did not consistently serve September 11 detainees with NTAs within its stated goal of 72 hours - only 60 percent were served within 72 hours. Until the INS removed its requirement for INS Headquarters review, the average length of time to serve the NTA was over seven days. Many detainees did not receive notice of the charges for weeks, and some for more than a month after being arrested.

One significant reason for the delay was the INS Headquarters's requirement that it review and approve all NTAs for legal sufficiency. This delayed the serving of NTAs on September 11 detainees. This was especially true for those detainees arrested in New York City but transferred to the INS Newark District. While INS Headquarters wanted to ensure the accuracy and completeness of NTAs for September 11 detainees, this temporary review mechanism delayed the process. It also produced a disconnect between the INS New York and Newark Districts because the INS New York District thought the charging documents it submitted to INS Headquarters for approval had been forwarded to the INS Newark District when it took custody of the detainees. Conversely, the INS Newark District presumed that approved NTAs already had been served on the September 11 detainees arrested in New York City in accordance with INS procedures.

We believe the INS New York District should have exercised more diligence in ensuring that the INS Newark District was aware of which detainees had not been served with NTAs prior to their transfer. The practice of transferring detainees from the INS New York District to the Newark District after the detainees' arrests in New York City, along with the failure of the New York District to transmit required immigration documents with the transferred detainees, caused significant delays in serving NTAs on September 11 detainees housed in New Jersey detention facilities.

In addition, the increased workload experienced by the INS Newark District's Office of Detention and Removal after the terrorist attacks further compounded the delays in serving NTAs on September 11 detainees.

These delays affected the September 11 detainees in various ways. First, it postponed detainees' knowledge of the specific immigration charges they faced. Second, it affected the detainees' ability to obtain effective legal counsel given the lack of specific charges. Third, a delay in serving NTAs and accompanying documents postponed the detainees' opportunity to request bond re-determination hearings and seek release. These effects on detainees were important, given the Department's "no bond" policy for September 11 detainees and the conditions under which detainees were held, both of which we describe in more detail later in this report. We believe the INS should have made a more systematic effort to ensure that NTAs were served on September 11 detainees in a timely fashion.


Footnotes

  1. A blank NTA form is attached at Appendix D.

  2. Section 236A of the Patriot Act provides that the Attorney General may "certify" an alien if he has "reasonable grounds to believe" that the alien has violated any of the enumerated immigration provisions (all of which relate to terrorism, espionage, or national security), or if the Attorney General has "reasonable grounds to believe" that the alien "is engaged in any other activity that endangers the national security of the United States." Any alien certified under the section must be taken into custody. If the certified alien is not placed in removal proceedings or criminally charged within seven days of his detention, the statute instructs the Attorney General to release the alien. An alien detained solely under this section who has not been removed within the initial 90-day removal period and "whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person." INA 236A(a)(6). As of March 26, 2003, no alien had been certified by the Attorney General under these provisions.

  3. In criminal cases, defendants must be brought before a magistrate no later than 48 hours after arrest for a probable cause determination, except in exceptional circumstances. See Riverside v. McLaughlin, 500 U.S. 44 (1991). In the immigration context, the INS District Director makes this "probable cause" determination.

  4. 8 C.F.R. 287.3.

  5. 8 U.S.C. 1229(a)(1). The INS is not required to serve NTAs on certain categories of aliens. For example, the INS is not required to serve NTAs on aliens under criminal indictment and not yet in INS custody until their criminal cases are resolved and the aliens have served their sentences. In addition, reinstatement of an alien's prior final order of removal does not require the INS to serve a new NTA.

  6. Of the 762 detainees, 118 were excluded from this analysis for the following reasons: 90 were served with NTAs prior to September 11, 2001, because they already had a final order of removal on immigration violations before September 11, 2001; 21 were not required to be served with NTAs; and 8 had arrest dates prior to September 11, 2001.

    A-Files for September 11 detainees arrested in the New York City area had to be sent first to the INS New York District rather than to INS Headquarters because the District in which the detainee was arrested had to prepare and serve the NTA. A-Files are essential to preparing an NTA because they contain the detainees' complete immigration histories.

  7. The INS Office of General Counsel formed a group of attorneys known as the Legal Sufficiency Unit at INS Headquarters to review the legal sufficiency of NTAs prepared for September 11 detainees.

    Pearson said he decided to centralize reporting and transfer authority for detainees at INS Headquarters because INS District Offices did not have the "visibility" as to which detainees were of interest to the FBI. He said that he wanted to ensure that FBI agents in the field knew where detainees were being held in order to facilitate interviews.

  8. According to Pearson, "high interest" September 11 detainees had possible direct involvement with the September 11 terrorist attacks, needed to be interviewed by U.S. law enforcement, presented potential flight risks, and continued to present potential threats to the public. For a more extensive discussion of the detainee classification issue, see Chapter 4.

  9. On April 17, 2001, Scott Blackman, the INS Eastern Region Director, had issued standardized procedures for transfers of detainees between districts in the Eastern Region that specified responsibilities for "sending" Districts and "receiving" Districts. These procedures stated that all charging documents, including NTAs, will be "issued and signed" and served on detainees "prior to transfer."
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