U.S. Department of
Washington, D.C. 20528
Robert C. Bonner
U.S. Customs and Border Protection
Michael J. Garcia
U.S. Immigration and Customs Enforcement
Under Secretary for Border and Transportation Security
RE: Detention Prioritization and Notice to Appear Documentary Requirements
This memorandum provides for the detention of aliens and outlines documentary requirements that must be met when transferring custody of aliens to Immigration and Customs Enforcement (ICE), Office of Detention and Removal Operations (DRO). The guidance in this memo supersedes all outstanding guidance regarding priorities for the detention of aliens within Border Transportation Security (BTS). All BTS personnel must adhere to legal authorities and the procedures set forth below in making decisions regarding whether to detain an alien. [Footnote 1 – This policy does not supercede any requirement to release an alien under Zadvyas v. Davis, 533 U.S. 678 (2001) and implementing guidance in 8 C.F.R. sections 241.4, 241.13 and 241.14 nor does it apply to unaccompanied juveniles.]
The following guidelines provide priority categories for the detention of aliens subject to detention. An alien being considered for detention should be placed in the highest numbered priority within the top category possible (i.e., an alien found to have a credible fear of persecution with an aggravated felony conviction would still meet the requirements of Mandatory, #2). In the case of mandatory detention, the Director of ICE DRO is to heed the guidelines strictly. In all other cases, the DRO Director retains the discretionary authority with respect to allocation of bed space and other detention-related resources. In all cases, the DRO Director is to heed these guidelines to the greatest extent possible when determining detention priorities.
All such aliens must be detained unless they fall within one of the exceptions to mandatory detention. There are not priority designations among categories of cases subject to mandatory detention. Questions as to whether a given alien falls under one of these categories and must be detained should be directed to local legal counsel.
Each component must ensure apprehended aliens are processed efficiently and placed in the appropriate and most expedient removal process. (e.g. stipulated, reinstatement, administrative, expedited) At a minimum, the following documents must be completed by the apprehending entity and presented to DRO to ensure each case moves swiftly through the removal process:
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To ensure maximum efficiency in the use of the Department's finite detention bed resources, it is imperative that this documentation is prepared and presented. Custody responsibility will not be transferred to ICE/Detention and Removal Operations (DRO) until ICE-DRO verifies that all of the above required documentation has either been provided or has been waived by an ICE/DRO authorizing official at the detention site. The arresting or delivering officer will ensure that detainees turned over to the custody of ICE/DRO are accompanied by any personal items, identity documents, baggage and/or prescription medications in that detainee's possession at the time of arrest.
The requirements I issued in my memorandum of March 30, 2004, Guidance on ICE Implementation of Policy and Practice Changes Recommended by the Department of Justice Inspector General, remain in effect. You are responsible for ensuring implementation of these requirements.