US Attorneys > USAM > Title 9 > Criminal Resource Manual 1905
prev | next | Criminal Resource Manual

1905

Guidelines For INS Undercover Operations—Part 7. Approval Procedures

    7. APPROVAL PROCEDURES

    1. Approval by Central Office (Undercover Operations Review Committee and Commissioner or Associate Commissioner for Enforcement) with Concurrence of United States Attorney or Strike Force Chief When Circumstances Are Present

      The Commissioner of the INS or the Associate Commissioner for Enforcement must approve the establishment, extension, renewal, or modification of an undercover operation if there is a reasonable expectation that any of the circumstances listed in paragraph IV(A) may occur.

      In such a case, the appropriate District Director or Chief Patrol Agent shall submit the application to the INS Central Office through the appropriate Regional Office. See paragraph B, below. The Central Office may either disapprove the application or recommend that it be approved. In cases, in which the Central Office recommends approval, the application shall be forwarded to the Undercover Operations Review Committee. If approved by the Undercover Operations Review Committee, the application shall be forwarded to the Commissioner or the Associate Commissioner for Enforcement. See paragraph D, below. The Commissioner or Associate Commissioner for Enforcement may approve or disapprove the application.

    2. Applications to the Central Office

      1. Each application to the Central Office from a District Director or Chief Patrol Agent recommending approval of the establishment, extension, renewal, or modification of an undercover operation involving circumstances listed in paragraph IV(A) shall be made in writing and shall include, with supporting facts and circumstances:

        1. A description of the proposed undercover operation, including the particular cover to be employed and any informants or other cooperating private individuals who will assist in the operation; a description of the criminal enterprise under investigation, and any individual known to be involved; and a statement of the period of time for which the undercover operation would be maintained;

        2. An inclusion of the information required by paragraph IV(B)(l)-(3) and a statement as to why it is believed traditional investigative techniques will not achieve the desired results;

        3. A statement concerning which circumstances specified in paragraph IV(A) are reasonably expect to occur, what the operative facts are likely to be, and why the undercover operation merits approval in light of the circumstances, including, for any foreseeable participation by an undercover employee or cooperating private individual in any otherwise illegal 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 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 -- a statement why the participation is justified by the factors noted in paragraph F(l) below, and a statement of the federal prosecutor's approval pursuant to paragraph F(2) below;

        4. A statement concerning proposed expenses;

        5. A statement that the United States Attorney or Strike Force Chief is knowledgeable about the proposed operation, including the sensitive circumstances reasonably expected to occur; concurs with the proposal and its objectives and legality; and agrees to prosecute any meritorious case that is developed; and

        6. The date by which a response to the application is necessary, and a brief explanation of why a response is needed by that date.

      2. In the highly unusual event that there are compelling reasons for not advising either the United States Attorney or Strike Force Chief of the proposed undercover operation, the Assistant Attorney General in charge of the Criminal Division, or other Department of Justice attorney designated by him, may substitute for such person for purposes of any authorization or other function required by these guidelines. Where the Director or Chief Patrol Agent determines that such substitution is necessary, the application to the Central Office shall include a statement of the compelling reasons, together with supporting facts and circumstances, which are believed to justify that determination. Such applications may only be authorized pursuant to the procedures prescribed in paragraph C, below, whether or not consideration by the Undercover Operations Review Committee is otherwise required, and upon the approval of the Assistant Attorney General in charge of the Criminal Division.

      3. An application for the extension, renewal, or modification of authority to engage in an undercover operation should also describe the results so far obtained from the operation or a reasonable explanation of any failure to obtain significant results and a statement that the United States Attorney or Strike Force Chief favors the extension, renewal, or modification of authority.

    3. Undercover Operations Review Committee

      1. There shall be an Undercover Operations Review Committee, consisting of enforcement employees and such other appropriate employees of the INS as designated by the Commissioner and consisting of attorneys of the Department of Justice designated by the Assistant Attorney General in charge of the Criminal Division, to be chaired by the Associate Commissioner for Enforcement as the Commissioner's designee.

      2. Upon receipt by the Central Office of a request for approval of an undercover operation, the Committee will review the application. The Justice Department members of the Committee may consult with senior Department officials and the appropriate United States Attorney or Strike Force Chief as they deem appropriate. If the Committee concurs in the determinations contained in the application and finds that in other respects the undercover operation should go forward, see paragraph C(3) and (4), below, the Committee is authorized to recommend to the Commissioner or Associate Commissioner for Enforcement, see paragraph D, below, that approval be granted.

      3. In reviewing the application, the Committee shall carefully assess the contemplated benefits of the undercover operation together with its operating and other costs. In assessing the costs of the proposed undercover operation, the Committee shall consider, where relevant, the following factors, among others:

        1. The risk of harm to private individuals undercover employees;

        2. The risk of financial loss to private individuals and businesses and the risk of damage liability or other loss to the Government;

        3. The risk of harm to reputation;

        4. The risk of harm to privileged or confidential relationships;

        5. The risk of invasion of privacy;

        6. The degree to which the actions of undercover employees or cooperating private individuals may approach the conduct proscribed in paragraph G, below; and

        7. The suitability of undercover employees' or cooperating private individuals' participating in activity of the sort contemplated during the undercover operation.

      4. The Committee shall examine the application to determine whether the undercover operation is planned so as to minimize the incidence of sensitive circumstances and to minimize the risks of harm and intrusion that are created by the circumstances. If the Committee recommends approval of an undercover operation, the recommendation shall include a brief written statement explaining why the undercover operation merits approval.

      5. The Committee shall recommend approval of an undercover operation only if a majority of its members agree, provided that:

        1. If one or more of the designees of the Assistant Attorney General in charge of the Criminal Division does not join in a recommendation for approval of a proposed undercover operation because of legal, ethical, prosecutive, or Departmental policy considerations, the designee shall promptly advise the Assistant Attorney General and there shall be no approval of the establishment, extension, renewal, or modification of the undercover operation until the Assistant Attorney General has had the opportunity to consult with the Commissioner;

        2. If, upon consultation, the Assistant Attorney General disagrees with a decision by the Commissioner to approve the proposed undercover operation, there shall be no establishment, extension, renewal, or modification of the undercover operation until the Assistant Attorney General has had an opportunity to refer the matter to the Deputy Attorney General or Attorney General.

      6. The Committee should consult the INS General Counsel's Office and the Office of Legal Counsel or other appropriate division or office in the Department of Justice about any significant unsettled legal questions concerning authority for or the conduct of a proposed undercover operation.

    4. Approval by the Commissioner

      The Commissioner or Associate Commissioner for Enforcement shall have the authority to approve operations recommended for approval by the Undercover Operations Review Committee. However, only the Commissioner may authorize a proposed operation if a reasonable expectation exists that:

      1. There may be a significant risk of violence or physical injury to individuals;

      2. A circumstance specified in paragraph IV(A)(14) or IV(A)(15) is reasonably expected to occur, in which case the undercover operation may be implemented only after the Deputy Attorney General or Attorney General has specifically approved that aspect of the operation in accordance with applicable law.

    5. Duration of Authorization

      1. An undercover operation may not continue longer than is necessary to achieve the objective of the authorization. In any event, such an operation shall not continue longer than six (6) months without new authorization to proceed.

      2. Any undercover operation initially approved by a District Director, Chief Patrol Agent, or Regional Commissioner must be reauthorized at the next higher level if it lasts longer than six (6) months.

    6. Authorization of Participation in "Otherwise Illegal" Activity

      Notwithstanding any other provision of these guidelines, an undercover employee or cooperating private individual shall not engage, except in accordance with this paragraph, in otherwise illegal activity.

      1. No official shall recommend or approve an undercover employee's or cooperating private individual's planned or reasonably foreseeable participation in otherwise illegal activity unless the participation is justified in order:

        1. to obtain information or evidence necessary for paramount prosecutive purpose;

        2. to establish and maintain credibility or cover with persons associated with the criminal activity under investigation; or

        3. to prevent or avoid the danger of death or serious bodily injury.

      2. Participation in otherwise illegal activity which would be proscribed by federal, state, or local law as a felony or which would be otherwise a serious crime must be approved in advance by the Commissioner or the Associate Commissioner for Enforcement on the recommendation of the Undercover Operations Review Committee pursuant to paragraphs A-D, above. The Commissioner's approval is required, however, for participation in any otherwise illegal activity involving a significant risk of violence or physical injury to individuals. Approval by the Commissioner or the Associate Commissioner for Enforcement is not required 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, 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. Approvals shall be recorded in writing.

        A recommendation to the Central Office for approval of participation in such otherwise illegal activity must include the views of the United States Attorney or Strike Force Chief on why the participation is warranted.

      3. Participation in the purchase of fraudulent documents; the purchase, ownership, use, or possession of stolen property or contraband; or the transportation of illegal aliens when neither an undercover employee nor a cooperating private individual is a major participant in the scheme to transport illegal aliens must be approved in advance by the District Director or Chief Patrol Agent. Approvals by such officials shall be recorded in writing.

      4. The INS shall take reasonable steps to minimize the participation of an undercover employee or cooperating private individual in any otherwise illegal activity.

      5. An undercover employee or cooperating private individual shall not participate in any act of violence, initiate or instigate any plan to commit criminal acts, or use unlawful investigative techniques to obtain information or evidence (e.g., illegal wiretapping, illegal mail opening, breaking and entering, or trespass amounting to an illegal search).

      6. If it becomes necessary to participate in otherwise illegal activity that was not foreseen or anticipated, an undercover employee or cooperating private individual should make every effort to consult with the District Director or Chief Patrol Agent. For otherwise illegal activity which would be a felony or which would be otherwise a serious crime, the District Director or Chief Patrol Agent can provide emergency authorization under paragraph IV(D), above. If consultation with the District Director or Chief Patrol Agent is impossible and there is not an immediate and grave threat to life or physical safety (destruction of property through arson or bombing is to be considered a grave threat to life or physical safety), an undercover employee or cooperating private individual may participate in the otherwise illegal activity so long as he or she does not take part in and makes every effort to prevent any act of violence. A report to the District Director or Chief Patrol Agent shall be made as soon as possible after the participation, and the District Director or Chief Patrol Agent shall submit a full report to the Central Office. The Central Office shall promptly inform the members of the Undercover Operations Review Committee.

      7. Nothing in these guidelines prohibits establishing, funding, and maintaining secure cover for an undercover operation by making false representations to third parties in concealment of personal identity or the true ownership of a proprietary (e.g., false statements in obtaining driver's licenses, vehicle registrations, occupancy permits, and business licenses) when such action is approved in advance by the appropriate District Director or Chief Patrol Agent.

      8. Nothing in paragraph F(5) or (6), above, prohibits an undercover employee or cooperating private individual from taking reasonable measures of self-defense in an emergency to protect his or her own life or the life of others against wrongful force. Such measure shall be reported to the District Director, Chief Patrol Agent, United States Attorney, or Strike Force Chief as soon as possible.

      9. If a serious incident of violence should occur in the course of the criminal activity under investigation and an undercover employee or cooperating private individual participates in any fashion in such serious incident of violence, the District Director or Chief Patrol Agent shall immediately inform the Central Office. The Central Office shall promptly inform the Assistant Attorney General in charge of the Criminal Division.

    7. Authorization for the Creation of Opportunities for Criminal Activity

      1. Entrapment should be scrupulously avoided. Entrapment is the inducement or encouragement of an individual to engage in criminal activity in which he or she would otherwise not be disposed to engage.

      2. In addition to complying with any legal requirements, before approving an undercover operation involving an invitation to engage in criminal activity, the approving authority should be satisfied that:

        1. The corrupt nature of the activity is reasonably clear to potential subjects;

        2. There is a reasonable indication that the undercover operation will reveal criminal activities; and

        3. The nature of any inducement is not unjustifiable in view of the character of the criminal activity in which the individual is invited to engage.

      3. Under the law of entrapment, inducements may be offered to an individual even though there is no reasonable indication that the particular individual has engaged, or is engaging, in the criminal activity that is properly under investigation. Nonetheless, no such undercover operation shall be approved without the specific written authorization of the Commissioner unless the Undercover Operations Review Committee determines (see paragraph C, above), insofar as practicable, that either:

        1. there is a reasonable indication, based on information developed through informants or other means, that the subject is engaging, has engaged, or is likely to engage in criminal activity of a similar type; or

        2. the opportunity for criminal activity has been structured so that there is reason for believing that persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated criminal activity.

      4. In any undercover operation, the decision to offer an inducement to an individual, or, to otherwise invite an individual to engage in criminal activity, shall be based solely on law enforcement considerations.

    8. Authorization of Investigative Interviews that Are Not Part of an Undercover Operation

      Notwithstanding any other provision of these guidelines, routine investigative interviews that are not part of an undercover operation may be conducted without the authorization of the Central Office and without compliance with paragraphs IV(B) and (C) and V(A) and (B). These include so-called "pretext" interviews in which an INS employee uses an alias or cover identity to conceal his or her relationship with the INS.

      However, this authority does not apply to an investigative interview that involves a sensitive circumstance listed in paragraph IV(A). Any investigative interview involving a sensitive circumstance -- even an interview that is not conducted as part of an undercover operation -- may only be approved pursuant to the procedures set forth in paragraphs V(A), (B), (C), and (D) (Applications referred to Central Office) or pursuant to the emergency authority prescribed in paragraph IV(D) if applicable.