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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 SIX

REMOVAL OF SEPTEMBER 11 DETAINEES

Federal law provides that, in general, aliens found to have violated immigration law shall be removed from the United States within 90 days of when the alien is ordered removed. This chapter examines the issues raised by the Department's decision to delay removal of detainees with final removal orders and voluntary departure agreements, even after the 90-day removal periods had expired. In addition, we review the adequacy of the INS "custody reviews" that are required for any detainee held more than 90 days after an Immigration Court has issued a final order of removal.

I. BACKGROUND

Section 241(a) of the Immigration and Nationality Act (INA) provides that "[e]xcept as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the 'removal period')." 8 U.S.C. 1231(a)(1)(A). The statute provides exceptions when removal within the 90-day period is not possible (such as when the alien's country of citizenship will not accept the alien). It also permits detention to continue beyond the 90-day period for aliens charged with certain types of immigration violations who have not been removed, or where the Attorney General determines that the aliens present a risk to the community or a risk of flight.68

As noted in previous chapters, the Department directed the INS to detain aliens arrested in connection with the PENTTBOM investigation until they could be cleared by the FBI of connections to terrorism. According to INS attorneys, the fact that the FBI clearance process took longer than the time needed by the INS to prepare to remove the aliens (to obtain travel documents and make travel arrangements) posed a significant legal issue for the INS.

Early on, INS attorneys believed that the delay in removing detainees created a legal problem for the INS and the Department and said that they highlighted these concerns in meetings with officials from the Deputy Attorney General's office. However, these Department officials assert that the INS did not inform them of its belief that it was detaining aliens in violation of the law until January 2002, and when these Department officials became aware of this concern they changed the policy shortly thereafter.

Whether an alien could be held within the 90-day period when the INS is ready to remove the alien, as well as whether the INS could hold an alien beyond the 90-day period in order to investigate the alien's possible ties to terrorism was the subject of differing opinions during the fall of 2001 and 2002. These issues are the subject of the Turkmen lawsuit, which is pending.69 In a February 2003 opinion, the Department of Justice Office of Legal Counsel concluded that the INS can hold aliens beyond the 90-day removal period if the purpose is "related to effectuating the immigration laws and the nation's immigration policies."

This chapter describes the manner in which the issue was raised by those working on the detainee cases and concludes that the Department did not address the issue in a timely way. Once the legal issue was recognized by the Department as significant, however, the "hold until cleared" policy described in Chapter 4 was abruptly discontinued. In addition, we found many instances in which the cases of detainees held over 90 days were not reviewed, as required by the immigration regulations.

II. DISCUSSION OF THE LIMITS OF THE INS'S DETENTION AUTHORITY

INS General Counsel Bo Cooper and Deputy General Counsel Dea Carpenter told the OIG that after September 11, the INS operated under the belief that legally it had 90 days (the "removal period") within which to remove an alien who had a final order of removal. Cooper also said the INS believed it could only use the entire 90-day period if the full 90 days were being used to "effectuate the removal." In other words, Cooper believed the INS could not delay removal of an alien for a reason "not related to removal." For example, Cooper believed that if it took the INS 85 days to obtain travel documents and make flight arrangements for an alien, then the INS could use 85 days of the 90-day removal period. However, if an alien was ready to be removed on the 30th day after receiving a final order, but another agency conducting a criminal investigation of the alien seeks to delay his removal, Cooper said he believed the INS could not use the remaining 60 days in the removal period to delay the alien's departure.

According to Cooper, he believed such a delay would be impermissible because the removal period is for the purpose of removing an alien from the country, and a delay exclusively attributable to a criminal investigation is not a delay "related to removal." Cooper said that he believed that in such a case the INS had no authority to continue holding the detainee if removal could otherwise be effectuated. Cooper stated that he recognized that it was "arguable" that consulting with another law enforcement agency to determine if custody should be transferred to that agency is "related to removal." Cooper told the OIG, however, that the slow pace of the FBI's detainee clearance process in the months after the September 11 attacks took the INS into "gray areas" in terms of its legal authority to continue holding detainees in custody, both within and beyond the 90-day removal period.

The conflict between the INS's interpretation of its legal authority to detain aliens with final removal orders and the Department's desire to maintain custody of these detainees until cleared by the FBI created a concern in the INS beginning as early as September 30, 2001, when an INS attorney noted that detainees with final orders wanted to leave and were ready to leave. A series of e-mails between the INS's three Regional Counsels and Carpenter reflected the INS's internal debate about how to interpret and apply the statute's 90-day requirement to this circumstance. The central question discussed in these e-mails was whether the INS had 90 full days within which to effectuate removal, or whether the INS had to effectuate removal as soon as possible, but prior to the expiration of the 90-day period. One Regional Counsel held the view that within the 90-day removal period, the INS did not need to have any reason to hold an alien who had a final order, and stated that delaying removal to obtain clearance from the FBI would constitute a legitimate reason for delay under the statute. Another Regional Counsel held the opposite view.

Attorneys from the INS and the Department's Office of Immigration Litigation (OIL) told the OIG that beginning in mid-October 2001 they discussed questions about the INS's legal authority to detain aliens who had been issued final orders of removal and voluntary departure cases at SIOC Working Group meetings.70 Either the Senior Counsel to the DAG, a former INS attorney who coordinated immigration issues along with Levey in the Deputy Attorney General's office, or another counsel who transferred from OIL in November 2001 to the Deputy Attorney General's office and who worked with Levey on immigration matters generally, attended these daily SIOC meetings between September and December 2001.71 Notes taken by OIL attorneys during this period confirm that its representative in the SIOC Working Group raised concerns about the limits of the INS's detention authority as early as October 26, 2001.

In particular, one OIL attorney told the OIG he described at an October 26, 2001, SIOC Working Group meeting limits on the INS's legal authority to detain final order cases as a "problem." According to this attorney, he told participants at the meeting (including the Senior Counsel to the DAG), that the Government's obligations with respect to the 90-day removal requirement were "ambiguous." He described how the slow pace of the clearance process created a "high litigation risk" for the Department.72

By mid- to late-October 2001, an OIL attorney noted in an internal OIL document that 45 detainees on the INS Custody List already had final orders of removal or had been granted voluntary departure. INS and OIL staff working in the SIOC Working Group said that, at the time, they realized that the FBI clearance process was moving much slower than anticipated. The OIL attorney said he told Levey's staff that voluntary departure cases were even more problematic than final order cases in terms of the INS's legal authority to continue to detain the aliens.73 He said he urged the FBI and INS to place all final order cases on a "high priority list." The attorney told the OIG that his office was nonetheless prepared to defend any habeas corpus petitions that might be brought by detainees challenging their continued detention, and he believed that OIL had legal arguments upon which to base its defense.74

Several OIL attorneys said they informed members of the SIOC Working Group that the delays in removing aliens with final orders were creating an "increased litigation risk," were "inviting habeas petitions," and were "a bad idea." Two OIL attorneys said they urged the Department to speed up the FBI clearance process in order to address the issue of removing detainees with final orders.

Thomas Hussey, the Director of OIL, told the OIG that in late September 2001, he also raised, at a meeting with representatives of the Criminal Division and the Deputy Attorney General's office, the issue of detainees with final orders who were ready and willing to leave the United States but had yet to be cleared by the FBI. We confirmed this based on an e-mail exchange that occurred on February 7, 2002, between Carpenter, the INS's Deputy General Counsel, and an OIL attorney in which Carpenter informed the OIL attorney of two habeas petitions filed by detainees held after voluntarily departure had been granted. According to the OIL attorney's response:

Our and INS's SIOC representatives have repeatedly sought to move the growing number of aliens in the WTCP [World Trade Center/Pentagon] pool who have taken or are subject to final orders, and particularly those who are approaching 90 or more days out. Thom [Hussey] anticipated the problem in one of the earliest WTCP meetings in ODAG [Office of the Deputy Attorney General]. What tends to happen now is that habeas filings by such aliens move them to the immediate attention SIOC list, and final clearance then tends to happen before we have to file a merits response.

OIL attorneys told the OIG they also raised concerns about the extent of the INS's detention authority with respect to specific detainee cases. For example, on December 19, 2001, the OIL supervisor sent an e-mail to other OIL attorneys noting that the staff in the Deputy Attorney General's office he spoke with about a particular case agreed that a habeas corpus petition should move the detainee "to the head of the CIA line" for clearance. The e-mail also said that the Deputy Attorney General's staff agreed with his assessment that the INS's failure to release certain detainees raised potential liability issues for the INS. The e-mail stated that the counsel in the Deputy Attorney General's office had:

returned my call to [the Senior Counsel in the DAG's office] on these two [aliens who had filed the petition] and the larger issue. She said the similarly situated number is 180 (correcting the 200 number I threw out), the CIA has cleared about 120 of them, and 2 weeks ago promised quick action on the remaining 60 (whatever quick means, but she agreed that a habe[as] moves the alien to the head of the CIA line, or should - but who communicates that to the CIA?). She indicated that they ([the Senior Counsel]) agree with our legal authority assessment and that Bivens etc is a prospect. . . . She knows nothing about any HQ-type order that might be imposing these holds, other than [the Senior Counsel]/Stewart [Levey]'s verbal directive to get the cases through the CIA checks where possible.

A review of other documents also tends to support the INS's contention that it raised legal concerns about the extent of its detention authority and that attorneys in the Deputy Attorney General's office were aware of these issues. For example, e-mails from INS attorneys stated that the issue was repeatedly raised in SIOC Working Group meetings, which were often attended by staff from the Deputy Attorney General's office. In addition, INS officials interviewed by the OIG stated that Levey and other members of the Deputy Attorney General's staff were aware during the fall of 2001 that continuing to hold detainees who had obtained a final removal order or voluntary departure order presented a potential legal problem for the INS.75

Levey and his Senior Counsel disputed the assertion that they were made aware of the legal issue regarding the limits of the INS's detention authority.76 They told the OIG that while they were aware that individual detainees had final removal orders in the fall of 2001, they did not know that this situation presented a legal issue for the INS until they received a draft letter from the FBI in late January 2002 (discussed below) which stated that the FBI would concur in a decision to release a detainee (even when the clearance investigation was not complete) if the INS had determined that it had no legal basis to justify continued detention.

The Senior Counsel told the OIG that she was aware that aliens were accepting orders of removal and voluntary departure. She noted that she contacted the FBI agent assigned to the SIOC Working Group on December 11, 2001 (90 days after the PENTTBOM arrests began). She stated that the FBI agent told her that the "kinks" in the CIA check had been worked out and that they were "now caught up."77 The Senior Counsel and Levey also both noted that, on December 19, 2001, Victor Cerda, the INS Chief of Staff, stated in an e-mail that the Department should "sell on the fact that the process is working, people are not being detained indefinitely in secret locations, and once no link or negative info[rmation] is determined after careful investigation, they are being processed in the normal course, often resulting in bond being posted and their release."78

Prior to learning of the legal problem identified in the FBI's letters, Levey claimed he saw the area as presenting more of a "procedural" problem. He said he heard the INS's concerns more as complaints about the slowness of the clearance process than legal concerns, so he said he addressed the concerns by working to improve the clearance process. He described himself as an "advocate" for the INS in that regard. While he acknowledged that the INS may have mentioned the "litigation risks" presented by the detentions, he said that a warning such as that would not have been an effective means of informing him that the INS thought it was either in violation of the law or would soon be acting in violation of the law.

Levey told the OIG that the issue was not raised to him as a "legal" problem, as opposed to a procedural issue, until the DAG's Senior Counsel did so in January 2002. Levey explained in his response to the draft of this report that he assumed that the INS could hold an alien for 90 days after a final removal order. He told the OIG that he did not know that the INS believed that, in certain circumstances, it had less than 90 days. He said that once it was raised, he immediately did what he was told the law required - allow the INS to remove detainees whose 90-day removal period had expired. He said that before then he did not understand that the INS believed it was acting beyond its legal authority. Both Levey and the Senior Counsel stated that, up until that point in time, they had never asked themselves the question "as a matter of law, how long can we hold these aliens with final orders of removal or voluntary departure orders?"79

III. DETAINEES' LAWSUITS

Between October and December 2001, several September 11 detainees with final orders of removal and voluntary departure orders had filed lawsuits, or threatened to file lawsuits, to challenge their continued detention. The following are examples of cases in which detainees challenged their continued confinement:

The detainee's attorney filed a habeas corpus petition seeking his release on November 27, 2001. An e-mail from an INS Bond Unit attorney to an official at INS Headquarters noted that while the INS attorney handling the case in the district had made the "eminently reasonable" assumption that the detainee "must be a serious criminal or terrorist," that assumption was not correct. The Bond Unit attorney explained that "the only reason [the detainee] remains on the list is for the CIA to run checks. It had been in that posture for at least two weeks." He wrote that "there is no evidence [the detainee] is a terrorist or is of interest to the FBI." In an earlier communication, the attorney had stated "how should the Service [INS] proceed. Should the Service continue to hold an individual for whom there is a final order, is on hunger strike, and for whom the FBI has no interest, in order for an administrative function to be completed, when that function is for reasons unknown to me, taking in excess of two weeks?"

The acting director of the National Security Law Division forwarded the Bond Unit attorney's comments to Cooper, the INS General Counsel, and noted that this detainee's case was discussed regularly by the SIOC Working Group. Another INS attorney noted in an e-mail to a Regional Counsel that the alien's attorney had "threatened to go public and tell the Islamic community not to cooperate with the government . . . because the only thing that will happen is that they would be locked up indefinitely. The timing of this is horrible, coming as it does in the middle of the Attorney General's effort to interview all those other folks."80 The alien was removed from the United States on December 4, 2001.

These examples indicate that the INS generally avoided addressing the substantive legal issues raised in the habeas corpus lawsuits by obtaining FBI Headquarters's clearance for an individual detainee who had filed a legal action before a formal response was needed on the merits. The INS first would argue that the detainees failed to exhaust all administrative remedies, thereby avoiding the primary legal question of whether the Department had legal authority to continue holding these detainees until the FBI could complete its clearance investigations. However, other aliens in similar circumstances, who did not have attorneys or had attorneys who did not file habeas petitions, remained in custody.

Witnesses from the FBI, the INS, the Criminal Division, and OIL stated that the habeas cases were a top priority for the Department, and that members of the Deputy Attorney General's office were aware of the issues in these cases, including the legal claims brought by the aliens challenging the INS's authority to detain them. Staff members for the Deputy Attorney General's office dispute this. For example, the Senior Counsel in the DAG's office told the OIG that she does not recall being aware of the details of the habeas petitions, nor does she recall any of the petitions raising the 90-day issue.

IV. POLICY CHANGE ALLOWING DETAINEES TO BE REMOVED WITHOUT FBI CLEARANCE

In January 2002, the Department changed its position as to whether the INS should hold aliens after they had received final orders of removal or voluntary departure orders until the FBI had completed the clearance process.

On January 18, 2002, an attorney working in the INS Commissioner's office requested a meeting with the Deputy Attorney General's Senior Counsel to discuss how to handle the final order cases that had not been cleared by the FBI.81 Five days later, on January 23, 2002, the INS faxed a list containing 54 detainees who had been held more than 90 days after receiving final removal or voluntary departure orders. INS officials provided a copy of this list to all SIOC Working Group members, including OIL, the FBI, and the Senior Counsel from the Deputy Attorney General's office, and the Working Group discussed these cases at a meeting the next day.82

At the same time, the INS General Counsel's Office completed a legal opinion regarding its interpretation of the limits of its authority to detain aliens with final orders of removal within the 90-day removal period. The INS had been working on this opinion since October 2001. The legal opinion, formatted as a memorandum, was addressed to Pearson, the INS Executive Associate Commissioner for Field Operations. Carpenter, the INS Deputy General Counsel, and Cerda, the INS Chief of Staff, told the OIG that the opinion was faxed to Levey's office on the day it was issued, January 28, 2002. However, Levey and his counsels stated they did not see the opinion until many months later.

The INS written opinion concluded that the INS has a duty to remove an alien with "reasonable dispatch" and the removal could not be delayed for the exclusive purpose of allowing the FBI to conduct an investigation to see if the person is a terrorist. The "Summary Conclusion" of the opinion stated:

The INS has the authority to detain an alien with a final order of removal during the 90-day removal period as long as the INS is acting with reasonable dispatch to arrange the removal of the alien from the United States. This authority may be called into question if the INS cannot establish that it diligently pursued the steps necessary to remove the alien. Section 241(a)(2) of the Immigration and Nationality Act (INA) states that the INS had the authority to detain an alien with a final order of removal for up to 90 days, the length of the removal period. However, case law provides that detention must be related to removal and cannot be solely for the purpose of pursuing criminal prosecution. While there is no bar to the government's continuing a criminal investigation during the removal period for possible prosecution of the alien, the INS must also be proceeding with reasonable dispatch to arrange for removal and the investigation for criminal prosecution cannot be the primary or exclusive purpose of detention.

At the same time the INS was drafting this legal opinion, FBI officials were growing concerned as more and more September 11 detainees passed the 90-day mark after receiving final removal orders without being cleared. After reviewing the Supreme Court decision that addressed limits on the detention of aliens who could not be returned to their country of origin in the "foreseeable future,"83 the FBI attorney representative to the SIOC Working Group said she was concerned that the September 11 detainees were being held longer than permitted under the law. She said she also became increasingly troubled by the fact that the INS was looking to the FBI as the agency responsible for extending the length of the detainees' confinement and the fact that the INS was not seeking travel documents until clearance letters were received from the FBI. She was also concerned about the upcoming INS custody review process. She said that the slow pace of the FBI clearance process was due to an FBI "staffing issue." However, she said the INS had not told the FBI "you have to let them [the detainees] go," and she believed that the INS had allowed the situation to get to the point where dozens of detainees had been held beyond their initial removal periods or voluntary departure dates.

The FBI attorney also told the OIG that in December 2001 she briefed FBI General Counsel Larry Parkinson that detainees were filing habeas corpus petitions to protest their confinement and that she thought there was very little upon which to defend the case for continuing to detain the aliens. She told Parkinson that her efforts to "prioritize" detainees so that those with final orders would receive FBI clearances within the 90-day period had been unsuccessful. Parkinson subsequently briefed FBI Director Mueller on the problem. When interviewed by the OIG, Director Mueller could not recall this particular briefing, but did not dispute that it occurred.

As several more weeks went by and the issue remained unresolved, with Parkinson's approval, the FBI attorney sought to clarify the FBI's position with respect to detainees with final removal orders. She therefore drafted a proposed letter for FBI Director Mueller to send to INS Commissioner Ziglar that stated, "If the INS has determined that there is no legal basis justifying continued detainment of that alien, the FBI concurs with the INS's determination to permit the individual to be removed." Previously, the FBI's position, and that of the Department, was that the INS should wait for results of the FBI clearance investigation before releasing or deporting any September 11 detainee. On January 28, 2002, the same day the INS states that it circulated its legal opinion about holding the detainees during the 90-day removal period, the attorney circulated her draft letter to her supervisor and the FBI General Counsel, as well as to the counsel to the DAG. At a subsequent meeting that, according to the FBI attorney, was attended by the Senior Counsel to the DAG, INS Chief of Staff Cerda, and an INS NSLD attorney, the letter was discussed and a decision was made that it would not be formalized and sent by the FBI to the INS.84

The additional counsel to the DAG, who worked on immigration matters along with the Senior Counsel to the DAG, stated that the issue of limits on the INS's detention authority was raised at a January 28, 2002, SIOC Working Group meeting she attended. She said she told the FBI attorney that the law was unclear, but to be on the "safe side" the INS should proceed with removal as soon as possible. Her notes appear to indicate that the FBI, the Terrorism and Violent Crime Section, and the Deputy Attorney General's office made an initial decision at this meeting to permit the INS to release detainees with final orders of removal who had not received FBI clearance.

The Senior Counsel told the OIG that when she read the FBI's draft letter it was the first time she became aware that the INS faced a legal issue involving how long it could detain an alien who had a final order of removal. She told the OIG that she then raised the issue with Levey immediately. She said she and Levey discussed the possibility of allowing aliens with final orders to be removed without FBI clearance with officials from the INS, FBI, and Criminal Division. This discussion, according to the Senior Counsel, was prompted by the indication in the FBI letter that detaining aliens after they had received final orders was unlawful.85

Levey said he agreed to revise the Department's policy to allow the INS to remove aliens with final orders without FBI clearance. Levey told the OIG that he could not recall whether he consulted with any higher-level officials in the Deputy Attorney General's office or the Attorney General's office before deciding to change what had been Department policy for almost five months. The Senior Counsel's notes indicate that Levey stated on January 29, 2002, "The law is the law, change the policy."86 Levey also stated that he verified that the Criminal Division and the FBI did not oppose this change.

The Attorney General told the OIG that he was unaware of people being detained inordinately long after a deportation order. He also stated that he had no recollection of the INS telling him of any concern that aliens were being detained against the law.

The Senior Counsel distributed new procedures to the INS, FBI, OIL, and Criminal Division in an e-mail on February 6, 2002. According to her e-mail, the INS was instructed to fax to the FBI and Criminal Division at the end of each day information on the day's hearings and the results of each hearing. The INS then would be able to proceed with removal of aliens with final orders without giving the FBI or Criminal Division any additional notice. If the FBI or Criminal Division had a particular interest in a case, they were to contact the INS about it. The INS would prioritize the cases with final orders over 90 days to allow those aliens to be removed. The FBI continued the clearance process, but the INS did not have to wait for a clearance letter in order to remove a detainee who was otherwise ready to go.

Many of the September 11 detainees with final orders were not removed immediately because the INS had not yet requested travel documents for them. Because travel documents are only valid for a limited period, the INS had not requested documents in advance since they might expire before the FBI clearance had arrived. After the policy change, in early February 2002 the INS requested travel documents for detainees whose removals had been held up due only to their lack of FBI clearance. By August 2002, the majority of the aliens on the INS Custody List either had been released or removed.

The following charts show the timing of when September 11 detainees were removed and the number of days from their arrest to their removal or release.

Figure 8:
Detainees removed per month

is not available electronically.

Note: 197 of the 762 detainees were released on bond, leaving 565 detainees. Of the 565, 68 had no release or removal dates. Consequently, the data in the chart represents 497 detainees not released on bond.

Figure 9:
Number of Days from Arrest Date
to Removed/Released Date

is not available electronically.

V. OLC OPINION

In the fall of 2002, the Deputy Attorney General's office asked the Office of Legal Counsel (OLC) to address two legal questions concerning the timing of removal of a detainee subject to a final order of removal under section 241(a) of the Immigration and Nationality Act (INA):

  1. Whether the Department is under an obligation to act with reasonable dispatch in effecting an alien's removal within the 90-day removal period established by the INA; and

  2. Whether and for what purposes the Department may refrain from removing the alien beyond the 90-day period.

The OLC conducted its analysis in the context of an alien who had received a removal order in October 2002 and whose 90-day removal period expired in December 2002 without his being removed. The OLC opinion stated that insufficient information existed at first to press criminal charges or to transfer the detained alien to military custody as an enemy combatant. The OLC opinion stated that the question presented was whether the alien's removal could be delayed to continue the investigation concerning his al Qaeda connections.

The OLC issued its memorandum opinion on February 20, 2003. The opinion concluded that, contrary to the opinion of the INS General Counsel, the INA by its terms grants the Department the full 90 days to effect an alien's removal and imposed no duty to act within any particular speed within the 90-day period. The OLC opinion stated, however, that the Department's ability to remove an alien within the 90-day period is not entirely unconstrained and "must be supported by purposes related to the proper implementation of immigration laws." The OLC stated that although its opinion did not have to provide a comprehensive assessment of what purposes were "related to the proper implementation of immigration laws," it concluded that investigating whether an alien has terrorist or criminal connections was related to the proper implementation of immigration laws.

The OLC opinion also concluded that it was permissible for the Department to take more than 90 days to remove an alien, even when the alien could be removed within 90 days, if the delay was related to affecting the immigration laws and the nation's immigration policies. Again, the opinion did not describe all the circumstances that would meet this test, but it concluded that investigating whether an alien has terrorist connections met the test.

VI. POST-ORDER CUSTODY REVIEWS OF SEPTEMBER 11 DETAINEES

We found that the September 11 detainees who were held by the INS beyond 90 days after their final orders of removal did not receive a Post-Order Custody Review (POCR) as required by regulation. According to 8 C.F.R. 241(4(h)(5), aliens held for 90 days after a final order of removal are, by INS regulation, entitled to custody reviews to determine if their continued custody is warranted. Several witnesses told the OIG that these POCRs were not conducted for September 11 detainees.

To examine this issue, we requested information on POCRs for the 54 detainees on the January 23, 2002, list prepared by the INS of aliens with final orders who had been held more than 90 days. We found that, for the most part, the INS failed to conduct POCRs for these September 11 detainees as required by the regulations. For 20 of the 54 cases in this sample, the INS was unable to provide any information related to POCRs. For another 24 detainees in the sample, the INS data shows that POCRs should have been completed but were not. For six additional detainees, the INS noted that POCRs were not required because the aliens had obtained voluntary departure orders. The INS said it removed one additional alien before his POCR was due, it completed one POCR two weeks late, and it completed two reviews without documenting whether the INS was within the deadline imposed by the regulation.

Pie Chart showing Information Regarding Post-Order Custody Reviews. POCR should have been done, but was not (24). POCR not required due to aliens status (6). POCR done late (1). POCR done, but not clear if done on time (2). POCR not required because alien removed in time (1). No information provided (20).

When we asked the INS to explain the lapses in conducting POCRs for September 11 detainees, a Special Counsel in the INS OGC cited several reasons. First, he said because the INS was unable to remove detainees on the INS Custody List until they were cleared by the FBI, INS District officers may have believed there was no purpose in performing the custody reviews. In addition, he said a number of aliens moved in and out of INS custody at different points in time and this probably led to confusion. Finally, he cited problems caused by the tremendous workload on INS staff in the New York and Newark Districts stemming from the PENTTBOM investigation.

VII. OIG ANALYSIS

In the aftermath of the September 11 attacks, whether the INS legally could hold September 11 detainees after they had received final orders of removal or voluntary departure orders to conduct FBI clearance investigations was the subject of differing opinions. A February 2003 OLC opinion concludes, however, that the INS can do so if the delay is related to the proper implementation of immigration laws, including investigating whether the alien has terrorist or criminal connections. A pending lawsuit also is addressing this issue.

Regardless of the outcome of that lawsuit, our review found that the INS and the Department did not address this issue in a timely or considered fashion. For many months, detainees were being held, even beyond 90 days, despite their willingness to leave the country. Some INS attorneys had doubts about the legality of preventing the September 11 detainees from leaving the country not only after 90 days had passed, but even within the 90-day removal period if the alien was willing to leave and arrangements could be made to remove the alien. INS and OIL attorneys asserted that they raised their concerns about the limits of the Government's detention authority at various meetings, and we found evidence that they did. Yet, despite their concerns about the issue, as time passed and the issue was not addressed, the INS did not raise these concerns at a higher level. On such an important issue, considering the significant doubts that these attorneys harbored about the legality of the policy, we believe the INS had a responsibility to press the issue clearly - and in writing - if it believed that the policy presented a legal issue for the Department. It did not do so until January 2002, almost five months after the issue first arose.

By the same token, we concluded that attorneys in the Deputy Attorney General's office who were responsible for coordinating these immigration issues had enough information to realize that this was a significant legal issue that needed to be addressed. The evidence indicates that Associate Deputy Attorney General Levey and his counsels attended meetings at the SIOC Working Group when the legal concerns regarding the extent of the INS's authority to detain aliens with final orders of removal were raised. While they stated they did not know that the final order and voluntary departure cases presented a legal problem (as opposed to a procedural problem) until late January 2002, we concluded that there was sufficient discussion and information about this issue that they should have considered earlier the limits on the Government's authority to hold detainees with final removal orders, both within the 90-day period and after the 90-day period.87 These issues also were raised by habeas corpus petitions and questions posed in the media and by Congress to Department officials. We believe the Department's senior officials with day-to-day responsibility for immigration issues should not have missed the fact that continued detention of aliens who had final orders presented an important legal issue. Further, we believe the Department should have squarely addressed this issue, well before the end of January 2002 when the policy was changed.

In response to the draft of this report, Deputy Attorney General Thompson stated that it is important to take account of the circumstances and atmosphere in the Department during this time period. He wrote that the period after the September 11 attacks was one of tremendous intensity, as the Department was required to alter its central mission to prevent further acts of terrorism. He noted that his staff was required to respond, in a crisis atmosphere, to hundreds of novel issues; had to shoulder a monumental task and an enormous workload; and had a great number of other responsibilities during this period as part of a comprehensive effort to protect the United States from further acts of terrorism. He wrote:

The detention of those illegal aliens suspected of involvement with terrorism was paramount to that mission. My staff understood that the immigration authorities of the Department should be used to keep such people in custody until we could satisfy ourselves - by the FBI clearance process - that they did not mean to do us harm.

Given those circumstances, I respectfully submit that it is unfair to criticize the conduct of members of my staff during this period. In light of the imperative placed on these detentions by the Department, I would not have expected them to reconsider the detention policy in the absence of a clear warning that the law was being violated. It is clear in the Draft Report that that did not occur until January 2002. When the issue was squarely presented, it is apparent that they promptly did the right thing: they changed the policy.

[The full text of his letter is included at Appendix K.]

We recognize the circumstances surrounding the response to the September 11 attacks. We agree that there were enormous demands on the Deputy Attorney General's staff - and on the entire Department - after the September 11 attacks, as the Department reoriented its mission and acted to prevent further attacks of terrorism. Yet, we believe that the Department, particularly staff in the Deputy Attorney General's office who were responsible for coordinating immigration issues, should have carefully considered before January 2002 such a critical issue as the extent of the Department's authority to hold detainees who had been issued final orders of removal, both up to and beyond the 90-day removal period. As we have pointed out above, we also agree that the INS could have, and should have, raised these issue more clearly and in writing before January 2002.

But the evidence indicates that concerns about the extent of the INS's detention authority were, in fact, raised by the INS and OIL attorneys before January 2002. We also conclude that the attorneys on the Deputy Attorney General's staff who were responsible for coordinating immigration issues should have been on notice of these issues not only because of the concerns expressed by INS and OIL attorneys at various meetings, but also because of the issues raised by the Moussaoui case, the habeas corpus petitions, and questions that were being raised publicly by Congress and the press. The authority of the Department to hold detainees after they received final orders of removal was not a hidden issue. We believe that, notwithstanding their significant responsibilities and the circumstances and atmosphere of the time, the Department attorneys responsible for coordinating immigration issues should have addressed squarely and earlier the issue of the Department's authority to hold detainees up to and beyond 90 days from when they received final orders of removal.

Finally, with respect to the custody reviews, the regulations clearly require the reviews and the INS should have conducted them in a timely manner.


Footnotes

  1. 8 U.S.C. 1231(a)(6).

  2. See Turkmen v. Ashcroft, 02-civ-2307 (E.D.N.Y. filed April 17, 2002).

  3. As described in Chapter 2, the SIOC Working Group was an interagency group formed to coordinate efforts among the various components within the Department of Justice who had an investigative interest in or responsibility for the September 11 detainees. In addition to the FBI, the Working Group included staff from the INS, the Department's Office of Immigration Litigation (OIL), the Terrorism and Violent Crime Section (TVCS) of the Department's Criminal Division, and the Office of the Deputy Attorney General.

  4. In response to the draft report, the Senior Counsel asserted that she often missed the SIOC meetings due to other assignments, and that she attended "very few" meetings after the additional counsel joined the office in November 2001. In response to the report, Levey also stated that he generally did not attend SIOC meetings with "a few exceptions at the beginning of the process." As noted in Chapter 4, however, Levey was in attendance at a SIOC meeting on November 2, 2001, when the INS claims it raised concerns about the limits of its detention authority.

  5. Notes from the FBI OGC attorney assigned to the SIOC Working Group from that same date indicate that the 90-day issue was discussed in some detail at the meeting. According to these notes, an INS representative stated that there were "45 cases with final orders," dating to as far back as September 12. The notes also reflect that the INS representative stated that there is a 90-day removal period, and that there is a "split of opinion" as to whether the INS's authority is "unfettered" during the 90-day removal period. The notes contain a notation: "clearances for removal - habeas fear" and reflect a comment that there is "some" additional time past 90 days, but the INS would "have to be trying to remove" the aliens. The notes also indicate that voluntary departure cases were discussed.

  6. An alien can avoid an order of removal by agreeing to voluntarily depart the country. 8 U.S.C. 1229(c). To be eligible for voluntary departure, the alien must show that he or she has a readiness, willingness, and financial ability to leave the United States at his or her own expense; that he or she has good moral character for the previous five years; and that a favorable exercise of discretion is warranted. Id. The INS is not obligated to accept an alien's offer to voluntarily depart. If the INS agrees to the voluntary departure and the Immigration Judge grants it, the removal proceedings are terminated and the alien agrees to leave the United States on a specific date, under specific terms and conditions. Voluntary departure has some advantages over removal, both for the alien and the INS. A person who departs voluntarily is not barred from returning for 10 years, as is a person who is ordered removed. The INS also saves the expense of litigation (which may prolong detention) and transportation costs. Aliens who accept voluntary departure may remain in custody pending departure or may be released, depending on the particular circumstances. If an alien fails to depart by the specified date, the voluntary departure order converts to a final order, which carries with it the 10-year bar to re-entry.

  7. For example, in the Zadvydas case, which involved aliens whose countries of origin would not accept them, the Supreme Court stated that the "presumptively reasonable" detention period was six months. The Court also stated in Zadvydas, "In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about the alien's removal from the United States." Zadvydas v. Davis, 533 U.S. 678, 689 (2001).

  8. The INS also asserted that the case of Zacarias Moussaoui brought to Levey's attention the INS position on the limits on its authority to detain aliens with final orders who could be removed to their country of origin. Carpenter, the INS Deputy General Counsel, explained to the OIG that, due to his entry into the United States through the Visa Waiver Program, Moussaoui was ordered removed pursuant to summary proceedings. On November 14, 2001, according to Carpenter, Levey suggested the possibility that Moussaoui be placed into "regular" removal proceedings (versus summary proceedings), in order to start the process of removal again, and increase the time he could be held on the immigration violation. The INS advised that the removal proceeding could not be started over, and that if the INS continued to hold him on the final order, it risked a potentially successful habeas petition. The INS cited this exchange as evidence that Levey was aware of the INS's view that final order cases had strict time limitations within which the INS was required to effectuate the removal.

    By contrast, Levey stated that this was an example of how the process worked - that a problem was identified and then solved. He did not agree that the Moussaoui case brought to his attention the general problem of INS time limits on its authority to detain aliens with final orders. Levey noted that he had a meeting to discuss the Moussaoui case scheduled with the Criminal Division for November 13, the day before this conversation with the INS apparently took place. He acknowledged that the discussion likely was prompted by the realization that Moussaoui was nearing 90 days after his order of removal. But he stated that the case did not raise, in his mind, a concern about other detainees who might be nearing 90 days after their orders of removal because he believed Moussaoui was an unusual case given that he was already in post-order detention on September 11. Levey said he did not realize at the time that other detainees were, or would soon be, similarly situated. He also stated that the fact that the INS contacted him about this case would have reinforced his "reasonable expectation" that the INS would bring other cases to his attention if they were "approaching a legal deadline."

  9. Levey wrote in his response to the draft report that, in his opinion, what the INS had failed to bring to his attention was its belief that it was "acting beyond its legal authority."

  10. The Senior Counsel said that she was not aware of substantial delays in the FBI's analysis of that CIA information, which had to be completed before detainees could be cleared. She also was not aware that the Special Agent whom she contacted was responsible for sending the name trace requests to the CIA and for forwarding the CIA responses to the FBI analysts. However, he was not responsible for the completion of the analysis of the CIA responses. See Chapter 4.

  11. Both the Senior Counsel and Levey point to this e-mail as evidence that the INS was satisfied with the clearance process and that it did not raise legal concerns to the INS. However, Cerda's e-mail was a suggested addition to a Public Affairs officer's proposed language to accompany a public release of updated INS detainee figures. According to Cerda, he clearly and emphatically expressed his concerns about the limits of the INS's detention authority to members of the Deputy Attorney General's office throughout the fall of 2001.

  12. Levey asserted that he had no reason to ask himself this question because he said he was not informed until January 2002 that aliens were being detained for more than 90 days.

  13. This apparently refers to the FBI's plan to conduct voluntary interviews of 5,000 foreign visitors.

  14. The Senior Counsel told the OIG that the request did not contain any words that conveyed a sense of urgency. According to her, the e-mail seemed to be innocuous.

  15. The Senior Counsel to the DAG told the OIG that legal concerns about the limits of the INS's detention authority with respect to final order and voluntary departure cases were not raised at this meeting. OIG interviews with the FBI OGC's representative at the SIOC Working Group suggest that the INS's concerns were being conveyed at the SIOC meetings to members of the Working Group, including the Deputy Attorney General's Counsel, with some urgency during this time frame. According to the FBI OGC representative, her increasing "discomfort" with respect to the final order issue caused her to brief the FBI General Counsel in December 2001, and caused her to draft the letter from FBI Director Mueller to the INS on January 28, 2002, discussed in detail later in this chapter.

  16. Zadvydas v. Davis, 533 U.S. 678 (2001).

  17. After reviewing a draft of this report, the Senior Counsel told the OIG that she does not recall such a meeting and does not believe such a meeting took place.

  18. In response to a draft of our report, the Senior Counsel said that when the other counsel to the DAG obtained a copy of the letter from an INS attorney, they and Levey immediately called Cerda. She said that during that call, Cerda did not mention the January 28, 2002, INS opinion regarding the limits on the INS's authority to detain aliens with final orders of removal within the 90-day removal period. The Senior Counsel stated that she did not see a copy of the INS opinion until October 2002. She told the OIG that if she had been informed that the INS was working on such an opinion, her office would have convened a meeting of representatives from INS, OIL, the Office of Legal Counsel (OLC), and the Office of the Solicitor General to discuss the legal issues and advise the Department on the correct interpretation of the law. She told the OIG that when her office requested an opinion on the issue from OLC in the fall of 2002 with respect to a particular case, her office received oral advice "within a few weeks" that the detention in question was legal. OLC's February 2003 opinion is discussed in more detail later in this chapter.

  19. The Senior Counsel and Levey point to this notation from January 29, 2002, as evidence that they had been unaware of the legal issue prior to that date, and that they took quick action once the FBI letter raised it to their attention.

  20. After reviewing a draft of this report, Levey clarified that he was not aware until late January 2002 that the INS "believed it was acting unlawfully." He acknowledged that the INS had raised concerns about detaining the aliens, but asserted that INS officials did not do so in a "coherent or appropriate" way that communicated their concerns about these final order cases with any "transparency or urgency."
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