Names and Alien numbers have been redacted.
Introduction to Oversight
Process into the Continued Detention or Release of Aliens in the
Miami District
The Miami District's overall detention policy is directed by law, existing Service policy, regulation and specialized instructions issued by Headquarters and the Eastern Region. Miami's policy does not supersede any policies implemented by these entities and is designed to conform to local operating needs/conditions with national guidelines. While utilizing these guidelines, Miami must further take into account special issues which are unique to this District. Some of these issues are based on the District's proximity to Cuba and Haiti especially, and Miami's identification as a major link to Central and South America. Other issues involve a very active local political base with continued interest in the matters of alien detention and release. All of these factors further emphasize the need for a strong District detention policy which is uniform and consistent.
The first priority in Miami, as in any other district, is to detain criminal aliens and those identified as a threat to public safety and order. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), signed by President Clinton on September 30, 1996, brought about sweeping changes to the removal process and instituted mandatory detention for several new classes of aliens. Because the Service has limited detention resources, it is imperative that custody cases be prioritized in order to best utilize all available bedspace. Often times the need will arise to release some aliens from custody to make room for those whose detention has been mandated by law. When the release of discretionarily eligible aliens becomes necessary, certain eligibility criteria must be considered.
The regulations which allow for the parole of certain aliens into the United States are found in 8 CFR 212.5. The parole of inadmissible aliens in accordance with this chapter would generally be justified only on a case-by-case basis for "urgent humanitarian reasons" or "significant public benefit," provided the aliens present neither a security risk nor a risk of absconding. Common examples of aliens released under this chapter would be: (1) Aliens who have serious medical conditions in which continued detention would not be appropriate; (2) Women who have been medically certified as pregnant; (3) Aliens who are defined as juveniles; (4) Aliens who will be witnesses in proceedings in the U.S.; or (5) Aliens whose detention is not in the public interest as determined by the district director or chief patrol agent (Border Patrol). The district director or chief patrol agent should apply reasonable discretion and should consider all relevant factors which may include; the acceptance of a bond to ensure appearances or departure from the U.S., community ties such as close relatives with known addresses and/or agreement to certain reasonable conditions such as periodic reporting to the INS.
Section 236 of the Immigration and Nationality Act and 8 CFR 236.1 provide the necessary guidance in determining whether an alien in removal proceedings (deportation proceedings under the old law) is eligible for release from custody during removal proceedings. Once eligibility has been established, a designated immigration officer [listed in 8 CFR 287.5(e)(2)] will determine the conditions of release which may include one of three choices; (1) Detain in Service custody - no bond set; (2) Release upon the posting (paying) of a bond in an amount no less than $1,500.00; or (3) Release on his/her own recognizance. Each of these determinations is subject to review and redetermination by an Immigration Judge if the detained alien is not satisfied with the conditions which have been placed upon his/her release.
As previously mentioned, the possibility of the alien posing a threat to the public safety and order should be the primary guiding factor when contemplating release. A thorough review of each Service A-file with a comprehensive synopsis of the alien's background, to specifically include his/her criminal history, should be provided to the reviewing official prior to any release from Service custody.
Names and Alien numbers have been redacted.
CASE HISTORIES
**************************************
BACKGROUND HISTORY:
The subject is a 45-year old Mariel Cuban male who was paroled (allowed to pass but was not admitted) into the United States on April 22, 1980. On April 16, 1990, the subject was convicted in the Circuit Court for Dade County, Florida, for the offense of Possession of Cocaine. For this conviction, he was sentenced to 364 days incarceration in the Florida Department of Corrections. On August 31, 1990, his jail sentence and probation were terminated as he had successfully completed a required drug treatment program while in jail. On April 14, 1994, the subject was again convicted in the same court for two separate counts of Possession of Cocaine. For these convictions, he was sentenced to two consecutive 364-day terms of incarceration. On August 21, 1996, ******************** was again convicted in the same court for the offenses of Cocaine Sale and Delivery and Threat against a Public Servant (the arresting police officer). For these recent convictions, the subject was sentenced to 16.8 months in the state prison, followed by two years probation. On May 15, 1997, the District Director in Miami, FL, deemed that the continued authorized parole of the subject would be against the public interest and revoked the parole which had been initially granted in 1980. The District Director further ordered that the subject be taken into custody upon his release from the South Florida Reception Center upon completion of his imposed sentences with the state. On May 23, 1997, the subject was released to the Immigration and Naturalization Service and was detained at the Krome Service Processing Center in Miami where he was placed into formal removal proceedings before an Immigration Judge. Before the Immigration Judge on June 6, 1997, the subject admitted to all of the allegations presented in the charging documents and was ordered removed from the United States.
RELEASE DECISION PROCESS FOR MARIEL CUBANS ONLY:
Directives from the Detention and Deportation Branch in Headquarters require that the cases of all detained Mariel Cubans be reviewed annually for possible reparole from service (INS) custody. A Mariel Cuban Criminal Custody Worksheet has been developed which allows for a numerical score to be assigned to each Cuban's case after a thorough review of criminal history and severity of the most current offenses, types of prior felony convictions, history of violence, institutional adjustment and whether the subject is one of the limited number whose name appears on the Repatriation List (for return to Cuba) which is available through Headquarters. For example; on a scale of 0 to 8 points (with 8 relating to those Mariel Cubans who pose the greatest security risk); on the subject of the "severity of the current offense", this subject was rated as a 4. For "types of prior felony convictions", he was scored as a 1. In all other categories, **************** received 0's, resulting in an overall score of 5 points. Headquarters has mandated that all cases with scores of 7 or more points must be detained. Those cases with scores from 0 to 6 points are eligible for release. ALL those whose names appear on the Repatriation List must be detained as their removal to Cuba has been authorized. Routinely, the cases of the detained Mariel Cubans are initially reviewed by a deportation officer who specifically has been assigned to serve as the liaison with Headquarters on Mariel Cuban issues. This initial rating officer forwards the worksheet, along with his/her recommendation to detain or release, to the first-line supervisor at the District. This supervisor will then provide his/her recommendation on the same worksheet and forward it to the Headquarters Official who ultimately will concur with or override the recommended release decision. The Headquarters official will also look at any documented history of mental problems, sex offenses/arrests, institutionalization, or treatment with psychotropic drugs. None of these previously mentioned items pertained to this immediate case and all reviewing officials concurred with the recommendation for release.
RELEASE DECISION CRITERIA:
On June 16, 1997, Headquarters Official ************* authorized the parole, pursuant to 8 CFR 212.12(b)(1), of ********************** and he was released from custody the same day.
CURRENT STATUS OF RELEASED INDIVIDUAL:
The period of parole is valid for one year and the alien will be required to present himself to a designated deportation officer annually to have his case reviewed and his eligibility for continued parole addressed. Pursuant to 8 CFR 212.12(h), "the Associate Commissioner for Enforcement shall have the authority, in the exercise of discretion, to revoke parole in respect to Mariel Cubans. A district director may also revoke parole when, in the district director's opinion, revocation is in the public interest and circumstances do not reasonably permit referral of the case to the Associate Commissioner. Parole may be revoked in the exercise of discretion when, in the opinion of the revoking official: (1) The purposes of the parole have been served; (2) The Mariel Cuban violates any condition of parole; (3) It is appropriate to enforce an order of exclusion or to commence proceedings against a Mariel Cuban; or (4) The period of parole has expired without being renewed."
********************************
BACKGROUND HISTORY:
The subject is a 55-year old non-Mariel Cuban National who last arrived in the United States at Miami, FL, from Jamaica, on November 4, 1982, via Eastern Airlines flight #970. He was not in possession of proper documentation to enter the U.S. and therefore was placed into formal exclusion proceedings before an Immigration Judge. He was not detained by the Service at this time. During the proceedings, the subject applied for political asylum and on October 4, 1988, the Immigration Judge denied the application for asylum and ordered the subject excluded and deported from the U.S. but GRANTED withholding of deportation. This decision of the Judge was appealed to the Board of Immigration Appeals in Falls Church, VA, and was subsequently dismissed on November 6, 1992, upholding the Judge's original order. This GRANT of withholding of deportation directs that the Service cannot enforce the subject's deportation to his native Cuba but also means that the alien is not eligible to adjust his status to that of Lawfully Admitted Permanent Resident (LAPR) alien. On November 20, 1992, the subject was convicted in the U.S. District Court for the Southern District of Florida for the offenses of one count of Tax Evasion and one count of Distribution of Cocaine. The subject was committed to the custody of the Bureau of Prisons (BOP) for a period of twelve years for the cocaine conviction and was given a concurrent sentence of five years for the conviction for tax evasion. On May 21, 1997, a Senior U.S. District Judge in the U.S. District Court for the Southern District of Florida reduced the sentence of ****************** to a total of eighty eight months. On June 2, 1997, ****************** was taken into custody by INS upon his release from the Federal Correctional Institution at Marianna, Florida.
RELEASE DECISION PROCESS AND CRITERIA:
On June 12, 1997, the District Director, in an exercise of discretion, authorized release on parole pursuant to 8 CFR 212.5(a)(5) - "Aliens whose continued detention is not in the public interest as determined by the district director or chief patrol agent." The subject's Service A-file contains fifteen letters of recommendation and support from family members and one from an employer who guaranteed a steady job and income for the subject if he were to be released/paroled from INS custody. In addition, in that the subject is a Cuban national who has been granted withholding of deportation to Cuba, the possibility of his being removed from the United States is extremely remote. Although ***************** does have a criminal history in the U.S., his convictions have been for nonviolent offenses and he does not appear to pose a danger to the community.
CURRENT STATUS OF RELEASED INDIVIDUAL:
As in the previous case, parole was granted for a period of one year, with the alien being required to present himself annually to a designated deportation officer for case review and probable reparole. Pursuant to 8 CFR 212.5(d), parole may be terminated at any time if in the opinion of the district director or the chief patrol agent (Border Patrol) the public interest requires that the alien be continued in custody.
************************************
BACKGROUND HISTORY:
The Subject is a 62 year old LAPR Mexican male who immigrated to the U.S. on November 14, 1957. On July 15, 1975, he was convicted in the Superior Court of California for the County of San Joaquin for the offense of Possession of Heroin. He was incarcerated at the California Mens Colony in San Luis Obispo, California. On July 26, 1977, ******************* was picked up by the INS (Border Patrol) upon release from State custody. Based upon his heroin conviction, he was placed into formal deportation proceedings before an Immigration Judge. On July 29, 1977, the Immigration Judge ordered the subject released on his own recognizance. ******************* subsequently failed to appear for his deportation hearing on February 15, 1978 in San Francisco, CA, and the case was administratively closed by the Immigration Court without any order of deportation being imposed. The subject again came to the attention of the INS when he was encountered at the San Joaquin County Jail on July 16, 1996. He had been sentenced to 120 days, five years probation, and a $150.00 fine for his May 27, 1994 conviction in San Joaquin County for the offense of Possession of Heroin for Sale, a crime defined as an aggravated felony. The subject was released to the custody of the Border Patrol on July 16, 1996 and deportation proceedings were again initiated. On August 30, 1996, the Immigration Judge ordered that the respondent be detained without bond, and on September 3, 1996, the same Judge ordered ******************* deported from the U.S. to Mexico. A timely appeal of the Judge's decision in this case was filed with the Board of Immigration Appeals in Falls Church, VA, and that appeal is still pending.
RELEASE DECISION PROCESS AND CRITERIA:
On November 15, 1996, the subject was transferred from INS detention at Florence, AZ to INS detention at Krome due to a deteriorating medical condition. ******************* suffers from hypertension diabetes which has resulted in kidney failure. Because of this renal failure, he is a candidate for regular renal dialysis and is facing the possibility of a kidney transplant in the near future: *****************, Chief Medical Officer for the U.S. Public Health Service at the INS clinic at Krome, recommended an early disposition of the detainee's case due to the gravity of his medical condition. Although there are no indications in the Service file as to current family ties in the U.S., ******************** did provide an address in Stockton, CA, the same area where he had resided during most of his 40 years as a LAPR, where he would be living upon release from INS custody. For humanitarian reasons, as a matter of discretion, he was ordered released on his own recognizance, by the Acting Officer in Charge at Krome, on June 12, 1997.
CURRENT STATUS OF RELEASED INDIVIDUAL:
The A-file will be forwarded to the immigration office having jurisdiction over the Stockton area and a deportation officer there will be responsible for tracking the case in the DACS (Deportable Alien Control System) computer system to ensure that the status of the pending appeal is periodically checked and that further appropriate action be taken on the case should a final order of deportation go into effect. In that the case has only been with the Board of Immigration Appeals (BIA) since September 30, 1996, it would not be out of the realm of possibility for this case to remain on appeal with the Board for another six months to a year.
****************************************
*********************************
BACKGROUND HISTORY:
BOTH subjects, husband and wife (Colombian nationals) entered the U.S. without being inspected by an immigration officer and when initially questioned were unable to articulate exactly how, when and where they had last crossed the border into the U.S. They were initially encountered in the U.S. by the Palm Beach County drug interdiction task force on June 6, 1997, while traveling by bus from New Jersey to Miami. During a consensual search of the subjects' luggage, agents discovered several bundles wrapped in tin foil. The subjects were found to have in their possession $200,000.00 in U.S. currency and when asked for identification presented false forms I-551 (Alien Registration Cards). The subjects claimed that the money found was not theirs and that each was paid $600 to transport the money to Miami. All of the money was seized by the sheriff's office but because no drugs were found along with the money, criminal prosecution was not pursued by the Palm Beach County Police. The subjects were turned over to INS for administrative removal proceedings, with their only charge of inadmissibility being that they were present in the U.S. without having been admitted or paroled or that they arrived in the U.S. at a time or place other than designated by the Attorney General
RELEASE DECISION PROCESS AND CRITERIA:
Pursuant to the authority contained in section 236 of the Immigration and Nationality Act and in 8 CFR 236, these two subjects were eligible for release during the pending of a final order by an Immigration Judge. Since neither had been convicted and computerized criminal record checks in all available systems came back negative, the Assistant Chief Patrol Agent (Border Patrol) set reasonable bond at $15,000.00 each. Both bonds were paid on June 11, 1997, and both aliens were released from INS custody.
CURRENT STATUS OF RELEASED INDIVIDUALS:
Their cases will be forwarded to the Immigration Court in Miami and all progress will be monitored by a deportation officer assigned to the cases.
***********************************************
BACKGROUND HISTORY:
The subject, a native and citizen of Venezuela, last arrived at Miami International Airport on June 15, 1997. He was seeking admission to the U.S. as a nonimmigrant visitor and had a valid passport and required nonimmigrant visa in his possession. He was referred to the immigration Secondary inspectional area in order to allow for a more thorough inspection. During primary inspection, a computer check had revealed a possible criminal history and this was confirmed through follow up computer checks in Secondary. The record verified the existence of an October 3, 1996 conviction in New Jersey for the offense of Theft by Deception (a false police report regarding a "stolen" watch - misdemeanor), a crime involving moral turpitude (CIMT). The Service alleged that this one conviction for a CIMT rendered the alien ineligible for admission to the United States and he was placed into formal removal proceedings.
RELEASE DECISION PROCESS AND CRITERIA:
During this period of time, detention space at Krome was extremely limited and the need arose to review the cases of all detainees to ensure that available bedspace was being most effectively utilized. Because ******************** neither posed a threat to public safety nor gave any indication that he would likely abscond and not appear for his hearing(s) before the Immigration Judge, his parole with an accompanying $1,500.00 exclusion bond was authorized, pursuant to 8 CFR 212.5(a)(5), by the Acting Officer in Charge (OIC) at Krome on June 16, 1997. On June 17, 1997, a LAPR relative of the detainee paid the bond and parole was granted for 6 months, the period of time it should take this case to be resolved.
CURRENT STATUS OF RELEASED INDIVIDUAL:
The case will be forwarded to the Immigration Court in Miami and all progress will be monitored by a deportation officer assigned to this case
**********************
BACKGROUND HISTORY:
The subject, a native and citizen of Cuba (non-Mariel), adjusted status to LAPR on August 29, 1985. On May 1, 1997, he arrived at Miami International Airport from Cancun, Mexico. He was referred to the immigration Secondary area as the result of a computer hit which indicated the presence of a drug conviction in the United States. **************** had been convicted on February 23, 1994, in the Circuit Court for Dade County, FL, for the offense of Possession of cocaine, unlawful possession of cannabis, unauthorized use or possession of driver's license or I.D. card, use or possession of drug paraphernalia, and obstructing a police officer or firefighter. He entered a plea of nolo contendere (no contest) at his criminal trial and was sentenced to time served.
RELEASE DECISION PROCESS AND CRITERIA:
Subsection (b)(3) of section 303 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) contains the Transition Period Custody Rules (TPCR) which allowed for the discretionary release of this subject from Service custody. The TPCR were put into place because the Commissioner realized that the Service lacked sufficient detention facilities and personnel to implement the mandatory detention provisions of the new Act. In that ***************** is a LAPR who was deemed to be an alien who would not pose a danger to the safety of other persons or of property and would likely appear for any scheduled proceeding, he was amenable to release. The District Director authorized parole on June 18, 1997, valid for one year, and the subject was released the same day.
CURRENT STATUS OF RELEASED INDIVIDUAL:
The case will be forwarded to the Immigration Court in Miami and all progress will be monitored by a deportation officer assigned to this case. In addition, since there is no immediate likelihood that the subject will be repatriated to Cuba any time within the period of one year, he will have to present himself annually to the deportation officer assigned to his case for review and probable reparole.
*****************************
BACKGROUND HISTORY:
The subject, a native and citizen of the Dominican Republic, was last admitted to the U.S. as a LAPR on January 25, 1983. On July 14, 1988, he was convicted in the Circuit Court, 9th Judicial Circuit, in and for Osceola County, Florida, for the offense of TRAFFICKING IN COCAINE, an aggravated felony, and was sentenced to three and one half years in the Florida Department of Corrections. The subject was initially encountered by the Border Patrol on June 10, 1994, at a Miami address, through information received from a confidential source who stated that there were several kilos of cocaine in or near the subject's house. After conducting a consensual search of the house, with negative results, the subject was informed that he would be contacted at a later date to be processed for deportation proceedings which were the result of the already known 1988 conviction. On July 21, 1994, the subject appeared at the U.S. Border Patrol Station in Pembroke Pines, Florida, accompanied by his attorney. The alien was processed and released on his own recognizance. For reasons that remain unclear, the charging documents to initiate the deportation proceedings were not timely served on the Immigration Court and therefore the proceedings never went forward. On June 17, 1997, *********** was re-served with updated forms [Warrant for Arrest (I-200), Notice to Appear (I-862) and Notice of Custody Conditions (I-286)] signed by the Assistant District Director for Investigations.
RELEASE DECISION PROCESS AND CRITERIA:
The Transition Period Custody Rules (TPCR) allowed for the discretionary release of this alien during the pending of his removal proceedings before the Immigration Court. As previously mentioned, *********** is a Lawfully admitted permanent resident. Although he is an aggravated felon by definition of his crime, he is also married, has three United States citizen children, and had always been cooperative with law enforcement in the past. He did not appear to pose a danger to the safety of other persons or of property and would likely appear for any scheduled proceeding. Taking these factors into consideration, bond was set at $25,000.00 and was posted (paid) for the alien's release on June 18, 1997.
CURRENT STATUS OF RELEASED INDIVIDUAL:
This case will now be forwarded to the Immigration Court in Miami and all progress will be monitored by the deportation officer assigned to the case.
**************************
BACKGROUND HISTORY:
The subject is a 48 year old native and citizen of Trinidad who entered the U.S. as a LAPR on July 17, 1970. On April 22, 1994, she was convicted in the Circuit Court for Hillsborough County, Florida, for the offense of Conspiracy to Commit Aggravated Child Abuse and Murder Third Degree, committed from August 27, 1990 and continuously until on or about September 5, 1990, for which the term of imprisonment imposed was 9 years. The subject was committed to the custody of the Florida Department of Corrections.
RELEASE DECISION PROCESS AND CRITERIA:
While the immigration case has been ongoing for almost two years, ********** medical condition has deteriorated to such that the Chief Medical Officer for the U.S. Public Health Service at Krome, ************* M.D., strongly recommended early disposition of this case with the patient to be referred to the University of Miami for care. ******** had been in INS custody since November 7, 1995, suffering from high blood pressure and anginal pain. However, her situation became more critical in January of 1997 when she noted the appearance of skin hyperpigmentation and itching which spread over her body. In addition, she experienced joint pain, episodes of transient blindness and unusual weakness. The doctor suggests that the patient shows symptoms of an incurable disease in which the symptoms will worsen with time. The disease appeared to be rapidly progressive and, therefore, as a matter of discretion, the District Director authorized her release from Service custody on June 18, 1997, pursuant his authority granted within the TPCR.
CURRENT STATUS OF RELEASED INDIVIDUAL:
********* next hearing is scheduled for October 18, 1997, at Krome, before Immigration Judge ****************. A deportation officer will closely monitor this case to ensure that appropriate and timely action be taken should a final order of deportation go into effect.
#####