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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 FIVE

THE DEPARTMENT'S "NO BOND" POLICY FOR SEPTEMBER 11 DETAINEES

This chapter examines the Department's "no bond" policy for September 11 detainees. We first provide background on relevant immigration law, including an overview of the charging, bond, and removal processes for aliens arrested for immigration violations. Next, we describe the Department's efforts to oppose bond for all September 11 detainees while the FBI conducted its clearance investigations. We also address the INS's efforts to comply with the policy, despite its concerns about the legal dilemma created by the lack of information for bond hearings.

I. BACKGROUND ON IMMIGRATION LAW

The INS has authority to arrest aliens if they are present in the United States in violation of immigration law. Aliens who were never lawfully admitted into the United States are labeled "inadmissible." Aliens who were lawfully admitted into the United States but failed to maintain their immigration status, overstayed their visa, or engaged in unlawful conduct are "removable" or "deportable." In either case, the proceeding that ensues is currently referred to as a "removal" proceeding. It takes place in the Immigration Court, a trial-level tribunal that determines whether an alien is in the United States in violation of law, and, if so, whether any waiver or benefit is available that would allow the alien to remain in the United States lawfully.53 The Office of the Chief Immigration Judge coordinates the activities of the more than 220 Immigration Judges located in 51 Immigration Courts throughout the country. Decisions of Immigration Judges may be appealed to the Board of Immigration Appeals (BIA). Both the trial and appellate-level courts are components of the Department of Justice, under the authority of the Attorney General. In certain instances, aliens may appeal the decisions of the BIA to federal court.

Removal proceedings begin when the INS issues a "Notice to Appear" (an "NTA") to an alien detained on federal immigration charges. As we described in Chapter 3, the NTA, issued by an INS District Director, is the charging document in a civil immigration case. The INS serves the NTA on both the alien and the local Immigration Court.

The INS District Director is responsible for setting the initial bond for an alien. The alien can request a bond re-determination hearing before an Immigration Judge by marking a box on the INS Form I-286 "Notice of Custody Determination," which is served on the alien at the same time as the NTA.54 In certain cases, aliens are not eligible for bond, but in most cases, according to the INS General Counsel, the INS must provide justification to support its position to hold aliens without bond.

Separate from the bond hearing, the alien is entitled to a merits hearing.55 If the Immigration Judge orders removal and the alien does not appeal, the "order of removal" becomes final and the "removal period" begins. This removal period is the phase during which the INS arranges for the alien to be returned to the alien's country of citizenship. Under federal immigration statutes, the INS "shall remove the alien within a period of 90 days" from the date the order becomes final.56 There are a number of reasons why removal may not be accomplished within that time frame, which the statute takes into account, such as aliens obstructing their return or a failure of the alien's home country to accept the alien's return. The removal period generally begins on the date the removal order becomes administratively final. Where an alien is being held for non-immigration reasons (such as when an alien is serving a criminal sentence), the removal period begins on the date the alien has finished his criminal sentence. The removal period can be extended if the alien fails to apply in good faith for travel or other documents necessary for his or her departure or takes other actions to prevent his or her removal.

According to the Immigration and Nationality Act, aliens who receive final orders of removal while being detained by the INS must continue to be detained during the 90-day "removal period."57 Once the initial 90-day removal period is over, if the alien has not departed the country the alien "shall be subject to supervision under regulations prescribed by the Attorney General." The statute permits certain aliens to be detained beyond the 90-day removal period, including those whom the INS - through a delegation of authority from the Attorney General - identifies as risks to the community or whom are unlikely to comply with the removal order.58

In the alternative, an alien can avoid an order of removal (and the negative consequences of such an order, including its 10-year ban on returning to the United States) by agreeing to voluntarily depart the United States. Aliens who accept "voluntary departure" may remain in custody pending departure or may be released.59

II. DEPARTMENT'S STRATEGY FOR MAINTAINING DETAINEES IN CUSTODY

As discussed in Chapter 2, after September 11 the Department was concerned about the possibility of additional terrorist attacks and the FBI immediately sought to shut down any "sleeper" cells of terrorists who might be preparing another wave of violence. The Department also wanted to ensure that the individuals it arrested as part of the PENTTBOM investigation would not be released to potentially cause additional harm, which led to the "hold until cleared" policy discussed previously. As Deputy Attorney General Thompson explained to the OIG, an individual arrested and detained posed no ongoing threat to the United States, and therefore law enforcement officials could focus on arresting others still at large who did pose a potential threat. Assistant Attorney General Chertoff told the OIG that, after the attacks, the Department almost immediately turned its attention to prevention, and that he and other top-level officials discussed using all legally available means to ensure that those who posed a danger would not be able to carry out further attacks.

The Attorney General told the OIG that, even though some detainees may have wanted to be released or may have been willing to leave the country, it was in the national interest to find out more about them before permitting them to leave. In addition, he said that the United States might want to share the information with the country to which the alien would be removed. He also noted that in the past the Department had problems with persons who were released pending appeal of their removal orders, because a very high percentage of them became "absconders" who later could not be located to be removed.

Within the Office of the Deputy Attorney General, the official primarily responsible for oversight of immigration issues was Associate Deputy Attorney General Stuart Levey. He and two attorneys (one a Senior Counsel) who reported to him coordinated the Department's strategy to maintain control of the September 11 detainees until they were cleared by the FBI.

On September 27, 2001, the Senior Counsel in the Deputy Attorney General's office sent an e-mail to David Ayers, Chief of Staff to the Attorney General, that included a "strategy for maintaining individuals in custody." The first section of the document attached to the e-mail, "Potential AG Explanation," explained that the Department was using several tools to maintain custody of all individuals suspected of being involved in the September 11 attacks, which involved criminal charges and material witness warrants for those in the country legally and immigration charges for those in the country illegally. The document noted that the INS already had 125 persons "related to this investigation" in custody, and that these detainees were requesting bond hearings. It stated:

In preparation for bond hearings for these individuals, the FBI and INS are diligently working to provide the INS attorneys in locations where these aliens are detained with all available information relating to the individual's risk of flight and dangerousness. Attorneys from the Criminal and Civil Divisions are participating in this process to coordinate the immigration proceeding with the criminal investigation and to prepare to defend against petitions for writs of habeas corpus that these aliens will almost certainly file. In addition, the Criminal Division is examining each of the cases to determine whether the person can be detained on criminal charges or on a material witness warrant if the person is ordered released from INS custody.

The second section of the document explained that detained aliens who were not satisfied with their initial bond or no-bond determination could request bond re-determination hearings. The document then described efforts the FBI and INS would make to ensure that the aliens in question would not be released on bond.

According to the document, the INS would be obtaining information relevant to the alien's risk of flight and dangerousness and would present that information to the Immigration Judge at the alien's bond hearing through proffers, documents, or witnesses. If only classified information was available to establish the alien's dangerousness or risk of flight, the information would be used only as a last resort after high-level review of the case. If the Immigration Judge ordered the alien's release, the INS would "immediately" file a motion to stay that decision and would appeal the decision to the BIA. If the BIA ordered the alien released, the INS would refer the case to the Attorney General. According to the document, the Civil Division was preparing briefs in anticipation of having to oppose petitions that might be filed by aliens seeking release in federal court. The Department planned to argue that any such petitions filed before resolution of the aliens' bond hearings were premature, and it planned to appeal any adverse decision from a federal district court granting release to these aliens. The strategy noted that if any alien "believed to be involved in the September 11 attacks" was ordered released, the Criminal Division might still be able to obtain a material witness warrant.

Implementation of this strategy, as discussed in the following sections of this chapter, determined whether a September 11 detainee would be released on bond pending a hearing on his immigration charges.

III. INS EFFORTS TO MAINTAIN DETAINEES IN CUSTODY

The INS took a variety of steps to ensure that aliens arrested in connection with the PENTTBOM investigation would not be released until the FBI had determined that they posed no danger to the United States. INS District Directors made an initial custody determination of "no bond" for all September 11 detainees (since granting bond could have resulted in the release of aliens not yet cleared by the FBI). Second, INS Executive Associate Commissioner for Field Operations Michael Pearson issued a directive two days after the terrorist attacks instructing INS field offices that no September 11 detainee could be released without Pearson's written authorization. Third, officials at INS Headquarters created a bond unit to handle the September 11 detainees' cases. Fourth, INS attorneys requested multiple continuances in bond hearings for September 11 detainees in an effort to keep the detainees in custody as long as possible. We describe these actions in turn.

  1. Initial "No Bond" Determination

    One of the initial steps taken by the INS to ensure that the September 11 detainees would not be released was the requirement that District Directors across the country who made the initial bond determination for aliens charged under federal immigration law make custody determinations of "no bond" for all September 11 detainees. As explained above, an alien initially denied bond by a District Director has the right to request a bond re-determination hearing before an Immigration Judge. In response to the blanket "no bond" policy, many September 11 detainees requested bond re-determination hearings. Consequently, the INS had to defend the "no bond" determination at hearings soon after the terrorist attacks. For example, 40 September 11 detainees had bond hearings scheduled during the week of September 24, 2001.

  2. Pearson Order

    Another aspect of the INS's efforts to maintain control of aliens arrested as part of the PENTTBOM probe immediately after the terrorist attacks was a directive issued by Pearson to ensure that no September 11 detainee would be released by the INS until "cleared" by the FBI of any connection to terrorism. By September 13, 2001, Pearson issued an order to all INS field offices - at INS Commissioner James Ziglar's request - directing that "Effective immediately, all persons arrested by the FBI, and turned over to the INS will not be released without written permission" from Pearson. In the initial period after the September 11 attacks, Pearson would not draft such a memorandum until he received a clearance letter from the FBI.60

  3. Creation of a Bond Unit at INS Headquarters

    To help INS field offices obtain evidence for the many bond hearings involving September 11 detainees, the INS established a Bond Unit at INS Headquarters in late September 2001. The unit, located at the FBI SIOC, consisted of six INS attorneys.

    An e-mail sent by an INS National Security Law Division (NSLD) attorney to INS district offices on October 1, 2001, instructed all INS District Counsels to keep the Bond Unit informed of all bond hearings for aliens on the INS Custody List.61 This e-mail explained that Bond Unit attorneys would be working with the FBI and Department attorneys to review FBI Headquarters's files for information that could be helpful at bond hearings for September 11 detainees. At the same time, the e-mail encouraged INS District Counsels to contact local FBI field offices to "ascertain if there is any information in the FBI file which could help INS maintain a successful 'no bond' position in litigation." The e-mail indicated that the FBI had agreed to work cooperatively with local INS District Counsels to provide "as much information as possible without compromising the WTC/Pentagon investigations." The e-mail also instructed the District Counsels to inform the Bond Unit of any information they obtained from FBI field office files so that the Bond Unit could review the information and "clear" it for use in a detainee's bond hearing. This was designed to ensure that information used at such hearings would not compromise the ongoing September 11 investigation.62

  4. Opposing Release at Bond Hearings

    1. Concerns About Lack of Evidence for Bond Hearings and Impact of Delays in the Clearance Process

      According to many INS officials we interviewed, implementing the Department's "no bond" position for every September 11 detainee quickly became very difficult. Owen ("Bo") Cooper, the INS General Counsel, said he was concerned whether INS attorneys facing bond hearings would have the evidence needed to support their effort to keep the detainees in custody. Several INS officials told the OIG that, at least initially, they expected the FBI to provide them with additional information to present at detainee bond re-determination hearings to support the "no bond" position. Instead, INS officials told the OIG they often received no information from the FBI about September 11 detainees and, consequently, had to request multiple continuances in their bond hearings.

      On September 19, 2001, Cooper sent an e-mail to an INS Regional Counsel describing the problem and discussing his efforts to obtain more information from the FBI about September 11 detainees: "As for the information to support a no-bond determination, we are trying today to break through what has been an absence of information from the investigation to use in the immigration process." Other INS officials expressed similar concerns, even as late as the summer of 2002. In a June 27, 2002, memorandum, INS Deputy General Counsel Dea Carpenter stated, "It was and continues to be a rare occasion when there is any evidence available for use in the immigration court to sustain a 'no bond' determination." An INS District Director brought to INS Headquarters to assist with the detainee cases told the OIG that in many instances the FBI would base its interest in a detainee on the sole fact that the alien was arrested in connection with a PENTTBOM lead. Thus, even though from the INS's perspective it had no evidence to support a "no bond" position, INS attorneys were required to argue that position in court.

      The SIOC Working Group helped draft what they referred to as "boilerplate" documents that INS Counsel could use to oppose bond for September 11 detainees. These boilerplate memoranda, which became known as "declarations," took the form of affidavits signed by FBI agents that described the PENTTBOM investigation and the general national security concerns related to individuals arrested in connection with the investigation. While some declarations had space for the document to be customized by inserting details related to the particular detainee in question, others did not. Beginning October 4, 2001, and continuing over the next two months, INS attorneys filed 89 declarations and similar "letterhead memoranda" opposing bond for September 11 detainees.

      The INS's Bond Unit provided the OIG with examples of the problems caused by the lack of FBI information for detainee bond hearings. In one case, an INS attorney in the INS New Orleans District complained in an October 4, 2001, e-mail that the A-File of a detained Israeli citizen contained no basis for detention. Further, the attorney said that the FBI had, up to that point, failed to provide him any information about the detainee. The attorney requested assistance from INS Headquarters and raised the specter of "ethical and professional considerations" connected with arguing "no bond" under these circumstances.

      In another example, Cooper noted on an October 1, 2001, printout of the INS Custody List that there had been "no single expression of interest" by the FBI for at least 12 of the detainees, 5 of whom were poised for a second bond re-determination hearing because the Immigration Court previously had granted a continuance. Cooper told the OIG that while these cases involved detainees who had been arrested on PENTTBOM leads, the FBI never affirmatively expressed an interest in them.

      In another case, officials in the INS Miami District sent an e-mail to INS Headquarters on October 9, 2001, reporting that two detainees were scheduled for bond hearings the next day and "information has been received from local FBI liaison that the FBI may no longer be interested in these aliens." However, the head of the INS's NSLD responded to the Miami District officials that they should continue to oppose bond for the detainees because officials at FBI Headquarters indicated these two detainees had not yet been cleared.

      Several witnesses told the OIG that the FBI also failed to provide the resources needed to efficiently manage the complicated and cumbersome process developed to obtain information relevant to bond re-determination hearings, get that information through the review process, and provide it in a format approved for use by INS attorneys at bond re-determination hearings. For example, a supervisor in the Department's Terrorism and Violent Crime Section wrote in an October 5, 2001, e-mail to Levey and others that she had been told that the FBI agent in the SIOC who coordinated the flow of information about detainees from FBI field offices to the INS would be assigned two additional staff members, but the agent had received only intermittent assistance. Other witnesses also told the OIG that they raised concerns about the lack of FBI resources assigned to obtaining information for INS attorneys to use at detainee bond hearings.

      In a "normal" immigration case (i.e., not involving a September 11 detainee), FBI field offices generally communicated directly with individual INS district offices to provide information. In these routine cases, INS attorneys would simply call FBI agents to testify at bond hearings to state why the alien should not be released. However, due to the sensitivity of the PENTTBOM investigation, the Department wanted to ensure that no evidence would be used in court unless it was approved at FBI Headquarters. In addition, FBI officials wanted the INS to avoid calling FBI agents to testify at detainee bond hearings, because they did not want aliens' attorneys to be able to inquire into other aspects of the Government's terrorism investigation. Consequently, officials developed a "vetting" process before any evidence could be used in a detainee's case: information was passed from FBI field offices to the SIOC Working Group to the INS Bond Unit to INS attorneys preparing for court hearings. We found that this process made it much more difficult and time consuming than normal for the INS to obtain evidence for detainee bond hearings.

    2. Difficulties Presented by New York Cases Added to INS Special Interest List

      The fact that hundreds of detainees "of interest" to the FBI had been arrested in the New York area but not initially reported to INS Headquarters (see Chapter 4, Section V(A)) created additional problems for the INS related to bond hearings. In dozens of these cases, INS attorneys initially had not opposed bond for the detainees and treated them as they would aliens arrested for immigration violations in "normal" cases unrelated to PENTTBOM. When these detainees were added to the INS Custody List, the INS was instructed to oppose bond for these detainees. In a November 7, 2001, e-mail to Pearson, INS General Counsel Cooper wrote:

      These are cases that had final unappealed bond orders from judges before they were added to the list (and therefore before there would have been any question of defending "no bond" determinations, appealing negative [Immigration Judge] decision, etc.). In these cases, there is no legal basis not to accept bond, and those aliens who offer to post bond should have that offer accepted and should be released. I have let [the Senior Counsel to the DAG] know that this is the case. (She agreed, by the way.) There are about 25 as of now.

      In one case, an INS Regional Counsel advised an INS attorney facing an upcoming bond hearing that, "An alien's addition to the Custody List is not sufficient new evidence that would justify the District Director re-determining bond. General Counsel concurs in this view. Therefore, we are legally obligated to abide by the [Immigration Judge] bond decision and must allow him to post and be released." This alien was released on bond two weeks later.

    3. INS Attempts to Revise Bond Policy

      Given the lack of information about detainees forthcoming from the FBI, the INS developed a process of automatically seeking continuances in bond hearings to give the FBI more time to investigate the detainees. According to Cooper, the INS understood that the FBI needed some time to conduct these clearance investigations. He also said he understood that the FBI considered maintaining custody of the detainees "necessary to its efforts."

      However, by early October 2001, Deputy General Counsel Carpenter and others in the INS Office of General Counsel became concerned that their duty of candor to the Court created an ethical dilemma when INS attorneys argued that aliens be detained without bond and there was no evidence to sustain such positions. Consequently, as described below, the INS sought to modify the "no bond" policy to accommodate the Department's desire to hold detainees in custody for as long as possible without crossing the line into legally unsupportable territory.

      1. Proposal to Revise Bond Policy

        Cooper said he approached Levey the first week in October 2001 for approval to change the Department's "no bond" policy to avoid many of the problems INS attorneys were facing at detainee bond hearings due to lack of information from the FBI. Cooper proposed that INS attorneys would request a continuance at a September 11 detainee's first bond hearing. If at the time of the second bond hearing the INS still had not received any evidence from the FBI that could be used to argue against bond, the INS would not treat the detainee as if the alien were a "special interest" case and would only argue against bond if it believed the alien presented a flight risk, danger to the community, or any other characteristic commonly argued in "normal" bond hearings. According to Cooper's plan, in such a case the INS also would not attempt to intervene if the alien subsequently posted bond and was ordered released. The FBI opposed Cooper's proposal and any revisions to the "hold until cleared" policy.

        Levey agreed to modify the "hold until cleared" policy, but apparently not to the extent the INS requested. Levey told the OIG that he believed the revised policy, described in the next section, adequately addressed the INS's concerns by permitting a detainee to be released on bond if the INS received no information from the FBI about the detainee after the second continuance. However, Cooper told the OIG that the revisions approved by Levey to the Department's "hold until cleared" policy did not include all of the changes he originally requested. Specifically, the revised policy did not allow the INS to treat a September 11 detainee as a "normal" detainee if the FBI failed to provide information to support the "no bond" position. Instead, the INS still had to continue to oppose bond for all September 11 detainees unless the FBI specifically expressed "no interest."

      2. Revised Bond Hearing Policies

        On October 3, 2001, as a result of the discussions between Levey and Cooper, the INS's Office of General Counsel distributed an e-mail within the INS that described a "revised" policy for bond cases:

        The policy regarding bond conditions for aliens who are detained by the INS and who appear on the "INS Custody List" has been modified. The new policy is outlined below.

        New Position on List Cases:

        1. If the alien is appearing for his/her first hearing and the alien is on the "INS Custody List" the [INS] should seek a continuance so that the Service can coordinate with the FBI to obtain evidence relating to the alien's no bond status. If the [Immigration Judge] denies the motion to continue and issues a bond, an emergency appeal/stay must be filed under the previously delineated policy.

        2. If the Service has received a prior continuance in the case and the alien is still on the "INS Custody List" and subsequent to the alien's arrest the FBI has expressed no interest in the alien, the Service should proceed as with any other case by presenting the available evidence.

        3. If the Service has received a prior continuance in the case and the alien is still on the "INS Custody List" and the FBI has expressed an interest in the alien beyond the initial arrest, the Service should seek an additional continuance so that it can continue to coordinate with the FBI to obtain any evidence relating to the alien in question. If the [Immigration Judge] denies the motion to continue and issues a bond, an emergency appeal/stay must be filed under the previously delineated policy. The Appellate Counsel's Office will assist with such filings and should be contacted as soon as possible to expedite this process.

        Thus, under the revised policy, it appeared that the only cases in which the INS was not required to oppose bond were cases in which the FBI expressed "no interest" in aliens in connection with the PENTTBOM investigation. This expression of "no interest" still had to come from FBI Headquarters - expressions of "no interest" from FBI field offices continued to be insufficient.

        However, officials in the INS General Counsel's Office told the OIG that either when the October 3 policy was disseminated or shortly thereafter they began to receive verbal "no interest" statements on particular detainees from FBI SIOC representatives, and they treated these verbal statements as expressions of "no interest" for purposes of the bond policy described above. Thus, between October 2001 and January 2002, a person with a "verbal no interest" statement from the FBI representative to the SIOC could be released on bond.63 Nonetheless, these verbal "no interests" were not formal FBI clearances and were not sufficient to permit the INS to remove the detainees from the United States.

        It later became apparent that the October 3 "revised" policy quoted above was silent as to detainees in whom the FBI had not expressed an interest "beyond the initial arrest" and who were appearing for their second bond hearing. In explaining how to handle these cases not addressed by the "revised" policy, Carpenter told an INS attorney handling a detainee bond hearing: "By the second bond hearing, if no evidence that the person poses a threat to national security exists and [FBI Headquarters] has not affirmatively indicated an interest in the person - our attorneys should treat this case no differently than any other case that is not linked to the events of September 11." This e-mail, sent on October 11, 2001, illustrated the conflict between enforcing the Department's "no bond" policy until the FBI cleared the detainee, and INS attorneys' advice not to oppose bond if the FBI did not express an affirmative interest. It also illustrated the mixed messages INS Headquarters was sending to its employees about detainee bond issues, ranging from Pearson's September 13, 2001, order not to release any detainees without his express authorization to advice from INS's Office of General Counsel not to oppose bond at a detainee's second hearing if no information was forthcoming from the FBI.

        In the end, INS officials told the OIG that the October 3 policy changes offered little assistance because the INS continued to run into difficulty obtaining timely expressions of "no interest" from the FBI about individual detainees.64

  5. Proposed Inter-Agency Memoranda

    At the same time it was attempting to revise the Department's "no bond" policy, INS officials drafted four form memoranda it wanted to send to the FBI in an attempt to memorialize and expedite the clearance process for September 11 detainees. The first draft memorandum advised the FBI that a detainee who was held without bond had been placed in removal proceedings and noted that the detainee "may be of interest to the FBI" relative to its terrorism investigation. The memorandum had a space for listing the bond hearing date and requested "information necessary for the INS to determine whether it continues to be appropriate to argue before the Immigration Court that the alien should remain in custody without bond." If no such supporting evidence or testimony was provided, the memorandum said the INS would produce whatever information it had in its records for the Immigration Judge to make an appropriate custody determination.

    The second draft memorandum requested an immediate update from the FBI on its interest in a specific September 11 detainee. It stated, "Absent any response within 24 hours of this notice, the INS will remove the alien's name from our Custody List and will process the alien according to normal procedures."

    The third draft memorandum advised the FBI that the Immigration Court had set bond for a detainee and that, if the detainee posted the bond, the INS would be required to release him immediately. It noted that the detainee "may be of interest" to the FBI, but that the extent of the FBI's interest was unknown. The memorandum requested information from the FBI to support an attempt to reopen the bond proceeding.

    The fourth draft memorandum advised the FBI that a particular detainee had received a final order of removal. Again, it noted that the detainee "may be of interest" to the FBI but that the extent of the FBI's interest was unknown. The memorandum concluded: "Absent further action on your part, we intend to remove the alien from the United States pursuant to the Order on (date)."

    Victor Cerda, the INS Chief of Staff, faxed these draft memoranda to Levey on October 9, 2001, and requested approval to begin sending them to the FBI. Cerda told the OIG that he believed he needed to seek Levey's approval because the memoranda would have altered the Department's directive that no September 11 detainee could be released without first obtaining FBI clearance. While the first and third memoranda relating to the "request for information" and "order setting bond" did not substantially change the policy, the second and fourth memoranda would have altered significantly the existing process by permitting the INS to remove aliens who had final orders of removal without FBI clearance.

    According to Cerda, Levey refused to allow the INS to use any of the memoranda and said there was no need to document the clearance process in this written fashion. Commissioner Ziglar told the OIG that he had a "clear recollection" of Cerda informing him about this telephone call with Levey and about Levey's statements regarding the memoranda. Levey told the OIG that he does not recall making the comment about not wanting the process to be documented. He acknowledged that the INS had been instructed to hold detainees until they were cleared by the FBI, a policy that would have been substantially altered if the INS memoranda were used. Levey said he opposed using the memoranda because he wanted to create a process by which the FBI and the INS worked together cooperatively. He said the documents created an "opposing counsel" type of relationship between two Justice Department agencies. Levey also told the OIG that during this period he understood the Department's position was that the INS's interests were "subservient" to the FBI's investigation, and that it was important to continue holding the detainees while the FBI investigated any possible connections to terrorism. However, Levey also stated that if INS officials believed the memoranda were essential, they should have approached him again to re-argue their position.

    Levey told the OIG that he recognized that the process could not work well if the FBI failed to provide sufficient and timely information to INS attorneys to use at detainee bond hearings. He said he raised this issue with other Department officials, including Dan Levin, Counsel to the Attorney General. Levin told the OIG that he did not recall this discussion.

  6. Impact of Pearson Order

    Several witnesses told the OIG that Pearson's order directing that no September 11 detainee could be released without his written authorization created tremendous pressure on Pearson to make timely detainee release decisions. Some witnesses said it was difficult to contact Pearson to obtain timely decisions in detainee cases.

    In order to address some of these problems, Pearson eventually orally authorized release of some detainees followed by a written letter. In addition, occasionally Pearson permitted his deputy to sign letters authorizing a detainee's release in his absence. However, these accommodations did not address the dilemma faced by INS field offices that aliens ordered released on bond by an Immigration Judge could not be released without violating Pearson's order. One e-mail from a senior INS official stated, "[I]f bond is set as a condition of custody by the [Immigration Judge] in the hearing, it puts the district director and the [Office of Detention and Removal] staff in the position of either ignoring their orders from Pearson or taking sole responsibility for the continued detention of the alien in opposition to the [Immigration Judge]'s determination."

    INS General Counsel Cooper told the OIG that he met with Pearson in October 2001 to argue that his order was creating potential legal liability for the INS, but the order remained in place. Cooper said he advised Pearson and other INS officials that refusal to accept bond on an unappealed bond order, if based solely on the need for a "Pearson" letter, was not legally defensible. Cooper said he also advised Pearson that he was instructing INS field offices not to continue holding aliens who attempted to post bond unless the INS had appealed the Immigration Judge's bond order. Pearson told the OIG that he attempted to address Cooper's concern by issuing release authorization memoranda in advance of detainee bond hearings. The advance release memorandum stated that in the event the Immigration Judge ordered the detainee released on bond, the INS District Office was authorized to release the detainee.65 By receiving these letters in advance, the District Office would not have to seek out Pearson in order to obtain his approval to comply with the Judge's order.

    The problem continued to arise, however, due to the difficulties in communication between INS field offices, INS Headquarters, and the SIOC. When Pearson continued to insist on the letters despite the continuing problems, Cooper went to Cerda, the INS Chief of Staff. Cerda told the OIG that he encouraged Pearson to ensure that the letters would be issued in a timely manner. But Cerda said he did not favor eliminating the requirement of a letter because the purpose of the letter was to ensure that a terrorist did not get released, and the letter served as a "check" to ensure that all the coordination with the FBI and the Department had occurred.

    As a result, INS employees routinely faced the dilemma of choosing between following Pearson's directive or the INS General Counsel's advice. For example, an October 12, 2001, e-mail to Pearson from an attorney working on detainee cases for the INS's NSLD stated that INS Acting Deputy Commissioner Michael Becraft asked her to contact the SIOC to determine if the FBI had any interest in a particular detainee who had been ordered released on bond by an Immigration Judge. The attorney said she told Becraft that if the alien was not released by the INS, "the individual making that decision could be held liable under a Bivens action." She said Becraft instructed her that, "If the FBI did not provide us with a 'no release' recommendation within 20 minutes of his call, the alien would be released." The attorney contacted the INS NSU's agent on duty, who called the SIOC. The NSU agent reported back to the INS attorney shortly thereafter that the alien was of no interest to the FBI, and the alien was released.

    Cooper and Carpenter told the OIG that whenever they confronted a conflict between a detainee's unappealed final bond order and Pearson's directive, their advice was that INS was obligated to release the detainee, regardless of whether the FBI had completed its clearance review.66 Carpenter noted that she provided this advice with reluctance, given that it was in conflict with the Department's "hold until cleared" policy. For example, an INS Newark District official sent an e-mail to an INS Regional Counsel on November 8, 2001, that he had just learned of a case in which the INS refused to release a detainee when his attorney attempted to post bond even though the Government did not appeal the bond order. The official wrote, "Frankly, I do not know what to tell him because I cannot bring myself to say that the INS no longer feels compelled to obey the law." The Regional Counsel forwarded the message to Cooper, noting that the District official clearly believed that he needed a letter from Pearson in order to release the detainee, even though the Regional Counsel had advised him to the contrary.

    This dilemma continued to play itself out again and again as Immigration Judges granted bond for September 11 detainees. An e-mail sent to Carpenter on November 20, 2001, by an INS attorney discussed the case of a detainee whose attempts to post the $4,000 bond set in late October 2001 by an Immigration Judge in the Newark District were rejected because the detainee's name appeared on the INS Custody List. The detainee's name had been placed on the list as a result of the "merger" of the New York and INS Custody Lists discussed in Chapter 4. The detainee filed a habeas corpus petition on November 19, 2001, and was allowed to post bond two days later.67

    Carpenter recognized that her office and Pearson's office were giving INS employees conflicting advice. In a December 3, 2001, e-mail she explained that:

    We all recognize that there is a point at which the field will receive conflicting instruction from Genco [General Counsel] and Field Ops [Pearson's office] - that is where the attorneys are ethically bound (due to a lack of evidence) not to appeal or oppose the setting of a bond or voluntary departure. Where that does not coincide with the issuance of a Pearson letter - it appears as though the attorneys are telling the field to release someone without a Pearson letter. What the attorneys are really telling the field is that the agency must release someone when there is no appeal pending and the alien has posted (or is attempting to post) the court ordered bond - since it lacks the legal authority to continue to detain the person.

    According to Cooper, about 30 detainees were caught up in the conflict between Pearson's order and advice from the General Counsel's Office to allow detainees to post bond, primarily in October and November of 2001, but even as late as April 2002. Cooper said that when confronted with this dilemma, the INS was able to secure clearances for these detainees from the FBI generally from a few hours to several days.

IV. OIG ANALYSIS

The Department decided immediately after the terrorist attacks to oppose bond for all aliens arrested in connection with the PENTTBOM investigation until they were cleared by the FBI, as a way to disrupt potential future terrorist attacks. As the weeks went by, two situations developed that should have led to a re-evaluation of this approach. The FBI's process for clearing September 11 detainees, originally envisioned as taking just a few days, was taking weeks and months. Also, as the Department learned more about the 762 September 11 detainees, the fact that many of these detainees were guilty of immigration violations alone, and were not tied to terrorism, should have prompted the Department to re-evaluate its original decision to deny bond in all cases.

The Department did not revise its approach for many months despite complaints by the INS about the problems it faced in bond hearings where it received no evidence from the FBI to tie the detained aliens to the September 11 attacks or terrorism. The INS raised the problem with officials in the Deputy Attorney General's office responsible for overseeing and coordinating INS issues. There is some difference as to whether this resulted in any substantial change in policy. Associate Deputy Attorney General Levey told the OIG that he thought he had addressed the INS's concerns by revising the Department's bond policy. He believed the revisions were satisfactory to the INS, and thus the revisions permitted detainees to be released on bond if the INS received no information from the FBI after the detainees' second continuance. However, our interviews and review of INS documents show that the policy was not changed to permit the INS to change its "no bond" position after the second continuance if there was no evidence provided by the FBI. While this written policy may not have accurately reflected the understanding reached between Levey and Cooper, the INS General Counsel, the policy continued to require FBI clearance.

The policy continued to place the INS in the untenable position of opposing bond unless it obtained a sign-off from FBI Headquarters stating that the FBI had no interest in the detainee, which was exceedingly hard to come by in the months immediately after the terrorist attacks. Thus, the INS still had to argue for "no bond" even when it had no information from the FBI to support that argument.

Although the INS appropriately raised this issue with Levey and other officials in the Deputy Attorney General's office, it did not press the issue at a higher level, which we believed the INS should have when it recognized that the policy remained unchanged. At a minimum and at an early stage, it should have written a legal memorandum that clearly spelled out its concerns and its position. As we describe in the next chapter, when it did write such a memorandum in January 2002, the "hold until cleared" policy was changed.

The provision of prompt, accurate information from the FBI for use in the bond hearings would have minimized the problems that arose with the "no bond" policy. Had the FBI devoted more resources to field investigations of these detainees and more resources at the SIOC to relay that information to the INS in a timely manner, some of these problems might have been avoided.

In addition, we found that the process developed by the INS to gather and "clear" information for use by INS District Counsel in opposing bond for September 11 detainees was exceedingly cumbersome. Given the swift pace of bond hearings stemming from the INS's initial "no bond" position for all September 11 detainees, asking District Counsel (who had little time to prepare for these hearings) to contact INS Headquarters, wait for the INS Bond Unit to receive a response from FBI SIOC agents to its request for a search of FBI files (where the FBI SIOC agents had to contact their local FBI field office for additional information), and then wait for approval from the SIOC before any of this information could be used (even non-classified information) was very time consuming. Consequently, INS officials in field offices told the OIG that they appeared in court with very little information to oppose bond in September 11 detainee cases.

Finally, while we recognize the importance of having a final check to ensure that detainees are released according to Department policies, INS employees believed they faced the choice of either violating a direct order from a senior INS official or a valid, unappealed bond order issued by an Immigration Judge. Given that efforts to "anticipate" bond hearings and produce "advance" letters continued to be inadequate to address the situation, the INS should have either revised the Pearson order or developed a more effective means of ensuring that it did not cause INS officials to violate an Immigration Judge's order.


Footnotes

  1. Removal proceedings are generally referred to as "section 240 proceedings" because they are governed by section 240 of the Immigration and Nationality Act, codified at 8 U.S.C. 1101-1537.

  2. See copy of Form I-286 at Appendix G.

  3. The merits hearing is held to determine whether the alien is removable, or whether the alien is entitled to relief that would permit the alien to stay in the United States despite the fact that the alien is technically removable, such as if the alien is eligible for asylum.

  4. 8 U.S.C. 1231.

  5. "[D]uring the removal period, the Attorney General shall detain the alien." 8 U.S.C. 241(a)(2) (emphasis added).

  6. According to INS data, 48 of the 762 (6 percent) September 11 detainees had received a final removal order prior to their arrest as part of the PENTTBOM investigation. Some of these detainees had been released from INS custody and ordered to appear on a certain date to be removed, but had failed to do so. Consequently, a final order of removal already was in existence for them when they were arrested after September 11 in connection with the terrorism investigation.

  7. Certain aliens are not entitled to removal proceedings because they waived rights in advance of their arrival in the United States under the auspices of special programs, such as the Visa Waiver Program. Under the Visa Waiver Program, aliens from 28 specified countries may visit the United States for up to 90 days without first obtaining a visa. These aliens can be summarily returned to their countries if they are found to have violated the terms of the Visa Waiver Program.

  8. A sample of a "Pearson" memorandum is attached as Appendix H.

  9. INS districts employ District Counsels who have staff attorneys who represent the INS in immigration proceedings, including bond hearings.

  10. At the time, while the Department could close immigration hearings, thereby protecting the information discussed at those hearings, it did not have the ability to request a "protective order." On May 28, 2002, the Department published new regulations that allowed for "protective orders" for certain information disclosed during immigration proceedings, similar to the process used in criminal proceedings in which a pleading may be filed under seal. 8 C.F.R. 3.46.

  11. The FBI OGC attorney assigned to the SIOC Working Group told the OIG that in January 2002 she stopped issuing verbal "no interest" statements. Instead, she referred to all detainee cases as "pending" until FBI Headquarters issued a written clearance letter.

  12. Levey said he was not provided with a written copy of the "revised" bond policy prior to its issuance. He also expressed frustration that INS officials had not raised the matter with him again when the revised policy, as written, failed to address their concerns. However, INS officials told the OIG they believed the decision had been made, and the attorneys worked within the confines of the policy that they understood Levey approved.

  13. A sample of a Pearson "advance" release memorandum is attached as Appendix I.

  14. Cooper told the OIG that beyond offering advice to INS attorneys handling these cases that it was unlawful for the INS to continue holding aliens who posted bond when the INS had not appealed, he reached out to the Executive Director of the American Immigration Lawyers Association (AILA) and asked her to contact him if she became aware of any aliens caught up in this dilemma. In a number of instances, lawyers for September 11 detainees notified the AILA about their clients' bond problems, the AILA Executive Director notified Cooper, and Cooper worked through internal INS channels to obtain a letter from Pearson so that the aliens' bond could be accepted.

  15. Habeas corpus, which literally means "that you may have the body," refers to a legal pleading in which a federal court is requested to order a Government official to undertake a particular action. In this case, a federal judge would order the INS to release a particular detainee.
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