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1903

Guidelines For INS Undercover Operations—Part 5. Categories of Undercover Operations

    5. CATEGORIES OF UNDERCOVER OPERATIONS

    1. Undercover Operations which Must Be Authorized by the Commissioner of INS with Concurrence of the Assistant Attorney General for the Criminal Division

      Subject to the emergency authorization procedures set forth below, undercover operations involving sensitive circumstances must receive prior approval of the Commissioner of the INS or the Associate Commissioner for Enforcement with the concurrence of the Assistant Attorney General for the Criminal Division or his or her designee. For the purposes of these guidelines, an undercover operation involves sensitive circumstances if there is a reasonable expectation that:

      1. The undercover operation will concern an investigation of possible corrupt action by a public official or political candidate, the activities of a foreign government, the activities of a high foreign government official, the activities of a religious or political organization, or the activities of the news media;

      2. An undercover operation will be conducted substantially outside the United States (an operation is not conducted substantially outside the United States if its only extraterritorial conduct will consist of contacts within immediate border areas with principals when such contacts are necessary to maintain the credibility, cover, or safety of the undercover employee or cooperating private individual);

      3. An undercover employee or cooperating private individual will be a major participant in the scheme to move or transport aliens illegally across an international border;

      4. An undercover employee or cooperating private individual, during the undercover operation, will make false or misleading representations about the activities of a third person who is not involved in and does not share any guilt for the activities which are the subject of the investigation, and there is a reasonable possibility that the false or misleading representations may cause significant embarrassment or physical or financial harm to the third person;

      5. An undercover employee or cooperating private individual will engage in any otherwise legal activity which would be proscribed by federal, state, or local law as a felony or which would be otherwise a serious crime -- except for the making of false representations to third parties in concealment of personal identity or the true ownership of a proprietary; the purchase of fraudulent documents; the purchase, ownership, use, or possession of stolen property or contraband; or the transportation or concealment of illegal aliens when neither an undercover employee nor a cooperating private individual is a major participant in the scheme to transport or conceal illegal aliens;

      6. An undercover employee or cooperating private individual will seek to supply an item or service, other than the supplying of documents, that would be reasonably unavailable to criminal actors but for the participation of the Government;

      7. An undercover employee or cooperating private individual will run a significant risk of being arrested for other than minor traffic violations but will nevertheless seek to continue in an undercover capacity;

      8. An undercover employee or cooperating private individual will be required to give a sworn statement or testimony in any judicial proceeding in an undercover capacity;

      9. An undercover employee or cooperating private individual will attend a meeting between a subject of the investigation and his or her lawyer;

      10. An undercover employee or cooperating private individual will pose as an attorney, physician, clergyman, or member of the news media, and there is a significant risk that another individual will be led into a professional or confidential relationship with the undercover employee or cooperating private individual as a result of the pose;

      11. An undercover employee or cooperating private individual will make a request for information to an attorney, physician, clergyman, or other person who is under the obligation of a legal privilege of confidentiality, and the particular information would ordinarily be privileged;

      12. An undercover employee or cooperating private individual will make a request for information to a member of the news media concerning any individual with whom the newsperson is known to have a professional or confidential relationship;

      13. There may be significant risk of violence or physical injury to an individual or a significant risk of financial loss to an innocent individual;

      14. The undercover operation will require the use of appropriated funds to establish, acquire, or operate a proprietary; or

      15. The undercover operation will require the deposit of appropriated funds or proceeds generated by the undercover operation in banks or other financial institutions. (Absent statutory authorization, such proceeds must be promptly deposited in the United States Treasury and may not be used to offset the expenses of the undercover operation. Proceeds may be deposited in banks or other financial institutions as part of a process leading to the prompt deposit of such funds in the Treasury.)

    2. Undercover Operations Which Must Be Authorized by the Appropriate Regional Commissioner

      An undercover operation involving activity in more than one region but not involving a sensitive circumstance listed in paragraph A, above, can be authorized, extended, renewed, or modified by the appropriate Regional Commissioner with notification to the Associate Commissioner for Enforcement. In order to authorize, extend, renew, or modify such an undercover operation, the appropriate Regional Commissioner must approve a written proposal that:

      1. Summarizes the proposed undercover operation and shows that there are facts or circumstances that reasonably indicate that a federal crime, which is within the investigatory jurisdiction of the INS, has been, is being, or will be committed;

      2. Shows why the proposed undercover operation appears to be an effective means of obtaining evidence or necessary information; included should be a statement of what prior investigation has been conducted and what chance the operation has of obtaining evidence or necessary information concerning the alleged criminal conduct or criminal enterprise;

      3. Indicates that the undercover operation will be conducted with the minimal intrusion which is consistent with the need to collect the evidence or information in a timely and effective manner;

      4. Indicates that there is no present expectation of the occurrence of any of the circumstances listed in paragraph A, above;

      5. Indicates that any foreseeable participation by an undercover employee or cooperating private individual in otherwise illegal activity which can be approved by the Regional Commissioner on his own authority (i.e. the making of false representations to third parties in concealment of personal identity or the true ownership of a proprietary; the purchase of fraudulent documents; the purchase, ownership, use, or possession of stolen property or contraband; or the transportation or concealment of illegal aliens when neither an undercover employee nor a cooperating private individual is a major participant in the scheme to transport or conceal illegal alien(s) is justified by the factors noted in paragraph V(F)(1), below, and

      6. Includes a statement that the District Director or the Chief Patrol Agent or his or her designee contacted the affected United States Attorney or Strike Force Chief, or his or her designee, and sets out fully the position of the Office of the United States Attorney or Strike Force Chief.

    3. Undercover Operations which May Be Approved by the Appropriate District Director or Chief Patrol Agent

      The appropriate District Director or Chief Patrol Agent may authorize the establishment, extension, renewal, or modification of all undercover operations which do not require approval by the Commissioner or Regional Commissioners. In order to authorize, extend, renew, or modify an undercover operation, the appropriate District Director or Chief Patrol Agent must approve a written proposal which includes all the information required by paragraph B, above.