[Federal Register Volume 59, Number 158 (Wednesday, August 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19792]


[[Page Unknown]]

[Federal Register: August 17, 1994]


_______________________________________________________________________

Part IV





Department of Justice





_______________________________________________________________________



Immigration and Naturalization Service



_______________________________________________________________________



8 CFR Parts 242 and 287




Enhancing the Enforcement Authority of Immigration Officers; Final Rule
DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 242 and 287

[INS No. 1442-92; AG ORDER 1907-94]
RIN 1115-AC63

 
Enhancing the Enforcement Authority of Immigration Officers

AGENCY:  Immigration and Naturalization Service, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements changes to Immigration and 
Naturalization Service (Service) procedures that relate to carrying 
firearms, expanding the arrest and service of process authority of 
immigration officers beyond matters involving violations of the 
immigration laws, and requiring that every alien fourteen years of age 
or older, against whom deportation proceedings are commenced, shall be 
fingerprinted and photographed and that such fingerprints and 
photographs shall be made available to other law enforcement agencies 
upon request. This rule also codifies existing policy guidelines 
regarding the authority of immigration officers under the direction and 
control of the Attorney General to arrest persons, carry firearms, 
serve process, and perform other related enforcement functions. The 
final rule affairs both existing and newly-developed policies and 
ensures the consistent application of these policies by all immigration 
officers involved in the enforcement of the immigration laws.

EFFECTIVE DATE: August 17, 1995.

FOR FURTHER INFORMATION CONTACT: Kathryn E. Sheehan, Special Assistant, 
Immigration and Naturalization Service, 425 I Street NW., Room 7246, 
Washington, DC 20536, telephone (202) 514-3032.

SUPPLEMENTARY INFORMATION: On October 14, 1992, at 57 FR 47011-47020, 
the Attorney General published a proposed rule to implement section 503 
of the Immigration Act of 1990 (IMMACT), Public Law No. 101-649 (8 
U.S.C. 1357), and requested comments from interested parties by 
November 30, 1992. Section 503(a) of IMMACT amended section 287 of the 
Immigration and Nationality Act (Act). Section 503(a) authorizes 
immigration officers, when performing duties relating to the 
enforcement of the immigration laws and when authorized under 
regulations prescribed by the Attorney General, to arrest without a 
warrant any person likely to flee before a warrant can be obtained, for 
any offense against the United States committed in the officer's 
presence or for any felony cognizable under the laws of the United 
States if the officer has reasonable grounds to believe the person to 
be arrested has committed or is committing such a felony. Section 
503(a) of IMMACT also authorizes immigration officers, under 
regulations prescribed by the Attorney General, to carry firearms and 
to execute and serve any orders, warrants, subpoenas, summonses, or 
other process issued under the authority of the United States.
    Section 503(b) of IMMACT requires fingerprinting and photographing 
of any alien fourteen years of age or older against whom deportation 
proceedings have been commenced under section 242 of the Act, and 
dictates that such fingerprints be made available to law enforcement 
agencies upon request. Finally, section 503(a) of IMMACT requires, as a 
condition of immigration officers' authority to make warrantless 
arrests under amended section 287(a)(5)(B) for felonies, the Attorney 
General to publish final regulations that define the categories of 
immigration officers who may use force, including deadly force, and the 
circumstances under which such force may be used; establish standards 
with respect to enforcement activities of the Service; require that no 
immigration officer be authorized to make arrests under section 
287(a)(5)(B) of the Act unless that officer has been certified as 
having completed a training program covering such arrests and standards 
and establish an expedited internal review process for violations of 
such standards.
    The proposed rule set forth regulations implementing these 
provisions of section 503 of IMMACT. A total of 235 comments were 
received, reviewed, and considered in writing this final rule.

General Issues

    Five commenters stated that the proposed rule failed to comply with 
section 4(b) of E.O. 12291 as it relates to the comments of persons 
directly affected by the rule, and sections 2(a) and 2(b)(2) of E.O. 
12778 as they relate to adherence to certain requirements in 
promulgating new regulations and reviewing existing regulations.
    Many of the provisions of E.O. 12291 pertain only to major rules. 
In the proposed rule, the Attorney General stated that this rule is not 
a major rule within the meaning of section 1(b) of E.O. 12291. 
Therefore, section 4(b) of that Executive Order is inapplicable. With 
regard to E.O. 12778, the Office of Management and Budget (OMB) issued 
a Memorandum for Agency Regulatory Contacts dated January 9, 1992, 
stating that there are two ways that an agency may certify compliance 
to OMB as part of the regulatory review process. An agency may attach a 
certification of compliance with E.O. 12778 to Standard Form 83 signed 
by an attorney, or an agency may insert a statement of such 
certification in the preamble to the draft rule itself. The Department 
of Justice (Department), following review of the rule in light of E.O. 
12778 and in compliance with that Executive Order, attached a 
certification of compliance. Accordingly, the Department and the 
Service believe that the requirements of E.O. 12291 (which was 
superseded by E.O. 12866 on September 30, 1993), 12866, and 12778 have 
been met.
    One commenter stated that the proposed rule may be in violation of 
the Service's contract with its collective bargaining unit because the 
required negotiations have not occurred regarding those aspects of the 
rule that constitute substantive changes in conditions of employment 
affecting the bargaining unit. During development of the final rule, 
negotiations occurred with both the National Immigration and 
Naturalization Service Council and the National Border Patrol Council.
    One commenter asserted that the existing Service Firearms Policy 
could not be changed because it constituted an agreement with the 
employee unions. The Service disagrees because there is no agreement 
between it and the employee unions regarding the existing Service 
Firearms Policy.
    One commenter pointed out that the proposed rule failed to indicate 
whether the regulations would preempt state or local laws regarding 
peace officer status. The regulations implement new statutory 
authorities pertaining to arrests and service of process for federal 
matters and would not affect current practices with states. State law 
may provide immigration officers with peace officer status that would 
also provide the authority to make arrests for state law violations. 
However, unless specifically authorized as a peace officer under state 
law, an immigration officer's authority to enforce the state statute is 
that of an ordinary citizen. The limitations and liabilities associated 
with such action are defined in state law.
    One commenter stated that the proposed regulations appeared to 
conflict with sections 101(a)(18) and 235 of the Act as they relate to 
the definition of ``immigration officer'' and an immigration officer's 
authority to administer oaths, take and consider evidence, and require 
by subpoena the attendance and testimony of witnesses and production of 
documents. The Service disagrees. Section 101(a)(18) of the Act 
authorizes the Attorney General to designate, individually or by 
regulation, any employee or class of employees to perform the functions 
of an immigration officer specified by the Act or any section thereof. 
In the proposed regulations, the Attorney General accomplished this by 
designating those categories of immigration officers authorized to 
perform the functions of sections 242 and 287 of the Act. The commenter 
stated incorrectly that Sec. 287.5(a) of the proposed rule required 
certain immigration officers to obtain individual or class designation 
in order to be authorized to interrogate and administer oaths. The 
proposed rule in Sec. 287.5(a) allowed any immigration officer as 
defined in 8 CFR 103.1(q) to interrogate and administer oaths. With 
regard to subpoenas, the proposed rule made no changes to the current 
regulations in Sec. 287.4 pertaining to the subpoena process.
    A number of commenters criticized the proposed rule for not 
providing a sufficient statement of the legislative history of section 
503 of IMMACT in the Summary section. An adequate description of the 
requirements of section 503 was provided by the notice of proposed 
rulemaking in the Supplementary Information section of the rule in 
accordance with the Federal Register's document drafting requirements.
    One commenter recommended that the effective date of the final rule 
for other than permanent full-time (OTP) immigration inspectors be 
extended to two years from date of publication in the Federal Register 
is order to have sufficient time to provide both basic immigration law 
enforcement training and training in the new enforcement standards. 
Such an extension is impracticable as many permanent full-time 
immigration officers will also need to receive both basic immigration 
law enforcement training and training in the new enforcement standards. 
It would be inappropriate to allow the OTP immigration officers to take 
more time in meeting the training timetable than the permanent full-
time employees because this would result in having OTP immigration 
inspectors operating under the old regulations while working side by 
side with permanent full-time immigration inspectors recently trained 
in, and operating under, the new regulations. This situation would not 
only promote procedural inconsistencies and confusion, but also subject 
the public to two different regulatory standards at ports of entry. The 
Attorney General has delayed implementation of the final rule to one 
year from date of publication in order to ensure training of 
approximately 10,000 immigration officers in the new enforcement 
authorities and standards. The Attorney General recognizes the 
difficulties inherent in meeting this rigorous training schedule. 
However, she is committed to ensuring a consistent and unified 
implementation approach nationwide that only one delayed implementation 
date can provide.

Policy Issues

Sections 242.2 and 287.7--Apprehension, Custody, and Detention and 
Retainer Provisions

    One commenter stated that the proposed rule was contradictory by 
requiring that an immigration officer successfully complete basic 
immigration law enforcement training in order to be authorized to issue 
a detainer in Secs. 242.2(a) and 287.7(a), yet not requiring the 
successful completion of basic immigration law enforcement training in 
order to be authorized to issue an order to show cause in Sec. 242.1(a) 
or a warrant of arrest in Sec. 242.2(c). A detainer is the mechanism by 
which the Service requests that the detaining agency notify the Service 
of the date, time, or place of release of an alien who has been 
arrested or convicted under federal, state, or local law. The Service 
agrees with the commenter that the standards for issuance of a detainer 
are no greater than those for issuance of an order to show cause and a 
warrant of arrest for immigration violations. The final rule deletes 
the requirement of successful completion of basic immigration law 
enforcement training for authorization to issue detainers. Training in 
immigration law and procedure is necessary to issue detainers, but 
training as a law enforcement officer is not needed to effectively 
conduct this portion of the immigration process. This does not 
eliminate the immigration officer's responsibility to ensure that 
detainers are issued only to aliens who are amenable to exclusion or 
deportation proceedings.
    Two commenters stated that the authority to issue a warrant of 
arrest in Sec. 242.2(c) should include the authority to serve the 
warrant of arrest in Sec. 287.5(e)(2). The Service disagrees. Issuance 
of a warrant of arrest entails signature by an authorized immigration 
officer, while service of the warrant entails a step-by-step process 
requiring training and proficiency in service of process procedures. 
The two authorities are separate and distinct processes.

Section 287.1--Definitions

    One commenter urged the inclusion of the Other Than Permanent Full-
Time (OTP) Immigration Inspector Basic Training Course in the 
definition of ``basic immigration law enforcement training'' in 
Sec. 287.1(g). The Service agrees and this section has been amended 
accordingly. However, an OTP immigration inspector will not be 
authorized to make arrests for federal offenses under section 287(a)(5) 
(A) and (B) of the Act until such time as he or she converts status to 
permanent full-time and successfully completes training applicable to 
that position.
    Four commenters urged the Service to expand the definition of 
``basic immigration law enforcement training'' in Sec. 287.1(g) to 
include prior law enforcement experience or training with other 
federal, state, or local agencies as well as lengthy Service experience 
or other miscellaneous Service training courses apart from the basic 
training courses. The Service acknowledges that successful completion 
of one or more training courses presented by the Federal Government or 
a state-certified program may be substantially equivalent to basic 
immigration law enforcement training. The final rule provides a 
mechanism for considering other training by expanding the definition of 
``basic immigration law enforcement training'' to include training that 
is substantially equivalent thereto as determined by the Commissioner 
with the approval of the Deputy Attorney General. The Commissioner's 
review is necessary to ensure that each immigration officer has all the 
required federal and, in particular, immigration law enforcement 
training. For example, an immigration officer who was employed 
previously in another Federal agency as a special agent, and thus had 
training in general Federal laws, would still need immigration law 
enforcement training.

Sections 287.5 and 287.9--Exercise of Power by Immigration Officers and 
Criminal Search Warrant and Firearms Policies

    Ninety-eight commenters expressed concern that the proposed 
regulations precluded immigration officers from carrying firearms in 
Secs. 287.5(f) and 287.9(b), effecting arrests for immigration 
violations in Secs. 287.5(c) (1), (2), and (5), and serving process in 
Sec. 287.5(e) while off duty. The commenters stated that it is not 
uncommon for immigration officers or other federal law enforcement 
officers in an off-duty status to receive telephone calls at home from 
other federal, state, or local law enforcement officers requesting 
their immediate assistance. The commenters pointed out that only 
Secs. 287(a)(5) (A) and (B) of the Act, regarding arrest authority for 
federal offenses, stipulate that an immigration officer must be 
``performing duties relating to the enforcement of the immigration laws 
at the time of the arrest'' and that this language should not be 
included in those sections of the proposed rule regarding the other 
enforcement authorities. In drafting the proposed rule, the Service did 
not intend to impair an immigration officer's ability to place himself 
or herself on duty when necessary for the purpose of enforcing the 
immigration laws of the United States. To avoid misinterpretation, the 
Service has removed the language ``performing duties relating to the 
enforcement of the immigration laws at the time of the arrest'' from 
the enforcement authorities except where required by statute. The 
Service has also removed the language ``In an on duty status'' from 
Sec. 287.9(b). Administrative guidelines will be developed to explain 
when an immigration officer on his or her own initiative may place 
himself or herself in an on-duty status.
    Fifty-two commenters objected to establishing a separate process 
for Service managers, including district directors, deputy district 
directors, officers in charge, and assistant officers in charge, to 
request the Commissioner's authorization to exercise each of the 
enforcement authorities. The commenters stated that this process would 
hold managers to a higher standard than their subordinates, many of 
whom are trainees still on probation, who are automatically empowered 
to exercise an authority if they have completed the requisite training. 
The commenters asserted that this process violates standard management 
hierarchy, and pointed out that the vast majority of affected 
individuals are career immigration officers who not only have completed 
basic immigration law enforcement training, but also have extensive 
experience in field enforcement operations. In fact, due to the 
Service's limited enforcement resources, these managers participate 
frequently in Service field enforcement operations or respond to 
requests for assistance from other law enforcement agencies when their 
subordinates are out of the office conducting field operations. The 
commenters asserted that managers in other agencies within the 
Department, including the Federal Bureau of Investigation, are vested 
with the same powers and authorities as their subordinates, and the 
Service's managers should not be treated differently if they have 
undergone the requisite training.
    The Service and the Department agree that a more streamlined 
process should be established for granting enforcement authorities to 
Service managers who are trained and who have maintained 
qualifications. The rationale behind the proposed rule's segregation of 
managers was to ensure that law enforcement authorities are granted 
only to those immigration officers, regardless of rank, who need the 
authorities and are fully trained in how to exercise them. To 
accomplish this task more expediently while ensuring the existence of a 
well-trained cadre of immigration officers at all levels in the agency, 
the final rule provides enforcement authorities to managers who have 
successfully completed basic immigration law enforcement training 
without creating a separate authorization process. The final rule also 
provides a mechanism for empowering those managers, as well as other 
immigration officers within one of the designated categories, who have 
not successfully completed one of the basic immigration law enforcement 
training courses by allowing them either to attend one of the basic 
immigration law enforcement training courses or to seek a determination 
from the Commissioner, with the Deputy Attorney General's approval, 
that they have training substantially equivalent thereto.
    A number of commenters stated that each immigration officer should 
have the power to exercise all of the enforcement authorities as long 
as each such officer is trained and certified. They stated that the 
proposed regulations created a rigid class system wherein only certain 
categories of immigration officers would be authorized to exercise 
certain enforcement functions and that this system impedes the 
Service's ability to respond to operational emergencies. In addition, 
some commenters stated that the enforcement role of immigration 
inspectors at ports of entry and the field review work and office 
interviews conducted by immigration examiners necessitate empowering 
both inspectors and examiners with all of the enforcement authorities. 
The Service and the Department disagree. In drafting the proposed rule, 
the Service used the Attorney General's ``Guidelines for Legislation 
Involving Federal Criminal Law Enforcement Authority'' (Guidelines) 
dated June 29, 1984. Although the Guidelines were developed to guide 
federal agencies in preparing legislative proposals concerning future 
grants of law enforcement authority, the Guidelines' overriding policy 
is that an officer should be given only the authorities that the 
officer needs and has been trained to execute. The Guidelines require 
an agency to extend grants of law enforcement authority only to those 
employees who have graduated from an accredited course of training in 
the exercise of that authority and only where a significant likelihood 
exists that, in the course of performing their assigned duties, the 
employees will frequently encounter situations in which it is necessary 
to exercise that authority. Each category of immigration officers has a 
different mission, and only those categories who satisfied the Attorney 
General's criteria were granted one or more of the enforcement 
authorities. In reviewing these regulations, consistent with the 
Department's review of other regulations, guidelines, and policies 
affecting criminal law enforcement authority in the Executive Branch, 
the Department believes that the same delineation of authorities is 
both appropriate and effective. The following chart summarizes the 
categories of immigration officers who are authorized to exercise the 
principal enforcement authorities.
    Some commenters stated that immigration inspectors at ports of 
entry need the authority to execute arrest warrants for immigration 
violations to conform with historical practices of the United States 
Attorneys offices. In light of existing practices, the Service and the 
Department agree that immigration inspectors at ports of entry do need 
to continue executing arrest warrants for both criminal and 
administrative immigration violations. However, immigration inspectors 
do not need the authority to execute arrest warrants for non-
immigration criminal violations. The investigation of non-immigration 
criminal offenses associated with the authority to execute an arrest 
warrant for non-immigration violations is beyond the scope of an 
immigration inspector's responsibilities. Accordingly, the structure of 
Sec. 287.5(e) in the final rule has been changed to focus on the 
distinction between ``immigration'' and ``non-immigration'' offenses, 
and to grant authority to immigration inspectors to execute arrest 
warrants for immigration violations.
    The revised language of Sec. 287.5(e) also specifies, as the 
structure of the proposed rule specified, that detention enforcement 
officers are authorized only to execute warrants of arrest for 
administrative immigration violations, not warrants for a criminal 
arrest that can be executed by other officers. In carrying forward this 
distinction, the Commissioner is authorized to designate additional 
officers (individually or as a class) to execute warrants of arrest for 
administrative immigration violations, while approval of the Deputy 
Attorney General must be sought to designate additional officers 
(individually or as a class) to execute criminal arrest warrants. 
Finally, Sec. 287.5(e)(2)(ii) grants authority to execute criminal 
warrants of arrest for non-immigration violations only to border patrol 
agents, special agents, deportation officers, their supervisors and 
managers, and immigration officers who need such authority and who have 
been designated by the Commissioner with the approval of the Deputy 
Attorney General.
    Several commenters questioned the efficacy of granting immigration 
examiners the power to arrest for immigration violations in 
Secs. 287.5(c) (1) and (2) yet not authorizing them to carry firearms 
in Sec. 287.5(f). Similarly, other commenters stated it was 
inappropriate to authorize detention enforcement officers to carry 
firearms yet preclude them from effecting any arrests. The Service and 
the Department disagree. The ability to effect an arrest is not 
conditioned upon the carrying of a firearm. Other federal, state, and 
local law enforcement officers' duties require them to make arrests 
without a firearm, and they do so without incident. Similarly, the 
potential need and ability to use deadly force to defend an officer 
does not imply a concomitant need for arrest authority. The two 
authorities are not necessarily concomitant. Detention enforcement 
officers do not need arrest authority. Detention enforcement officers' 
principal duties are to transport and guard detained individuals who 
have already been placed under arrest. They also execute warrants of 
arrest for administrative immigration violations. In order to clarify 
the detention enforcement officers' authorities, Sec. 287.59(c)(6) has 
been added to the final rule.
    Five commenters questioned whether immigration examiners and 
deportation officers who perform inspectional duties at ports of entry 
on an overtime basis would be precluded from exercising the enforcement 
authorities granted to immigration inspectors. Immigration examiners, 
including free trade examiners, and deportation officers are considered 
to be immigration inspectors when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections, provided all training requirements 
for immigration inspectors have been met. To avoid misinterpretation, 
the Service has added language to the rule stipulating that immigration 
examiners are authorized to exercise the same enforcement authorities 
granted to immigration inspectors when they are in the uniform of an 
immigration inspector and performing inspections or supervising other 
immigration inspectors performing inspections. Deportation officers are 
already listed as authorized to exercise the same enforcement 
authorities granted to immigration inspectors, but Sec. 287.5(b) has 
been amended for clarification to include deportation officers only 
when in the uniform of an immigration inspector and performing 
inspections or supervising other immigration inspectors performing 
inspections.
    Two commenters stated that certain immigration officers stationed 
in Service offices overseas should be granted law enforcement 
authority. They also noted that immigration officers stationed overseas 
occasionally must work on cases within the United States. The Service 
and the Department note, however, that immigration officers cannot 
exercise any of the enforcement authorities while working in foreign 
countries. When overseas officers are assigned to a duty post within 
the United States, they assume the power to exercise all of the 
criminal and civil enforcement authorities assigned to the applicable 
category of immigration officers, provided all training requirements 
have been met. For example, a special agent overseas who is detailed to 
an assignment in the United States has all of the enforcement 
authorities granted to special agents, provided that the detailed 
special agent has met all training requirements for special agents. 
However, overseas immigration officers do need the authority to 
interrogate, administer oaths, and take and consider evidence. 
Accordingly, Sec. 287.5(a) in the final rule has been amended to grant 
such officers authority to interrogate, administer oaths, and take and 
consider evidence in or outside the United States.
    One commenter stated that the proposed rule in Sec. 287.8(c)(2) 
should be changed to remove the requirement that the immigration 
officer must document, on appropriate Service forms, the fact that an 
arrestee was advised of his or her rights. The commenter pointed out 
that many United States Attorneys accept advice of rights given in the 
presence of witnesses in lieu of a form. The Service disagrees. 
Immigration officers must document advice of rights on appropriate 
Service forms, consistent with the practice of other components within 
the Department.
    One commenter suggested that proposed Sec. 287.8(c)(2) incorrectly 
stated that a person arrested and charged with a criminal violation 
shall be advised of the appropriate rights as required by law at the 
time of arrest, or as soon thereafter as practicable. The commenter 
pointed out that current law requires that such warnings be provided 
only prior to a custodial interrogation. The commenter further stated 
that many criminal arrests are made where the arresting officer does 
not want to conduct a custodial interrogation and therefore should not 
be required to advise the person arrested of the appropriate rights. 
The Service and the Department disagree with the commenter's 
interpretation of the rule. First, the rule states that the person 
arrested shall be advised of the appropriate rights as required by law. 
The law, including constitutional standards, determines when advice of 
rights must be provided. Second, to the extent that the rule encourages 
a uniform advice of rights at or shortly after the point of arrest, it 
serves as an appropriate reminder of these constitutional standards and 
establishes a practice that will prevent situations where 
interrogations are wrongfully undertaken without proper advice of 
rights.
    One commenter stated that the definition of a designated pursuit 
vehicle in Sec. 287.8(e)(1) should stipulate that the vehicle must be a 
sedan in order to conform to the Border Patrol Vehicle Pursuit Policy. 
The Service disagrees. Other enforcement programs will be developing 
their own vehicle pursuit policies that may permit the use if vehicles 
other than sedans. The proposed regulations authorized certain 
categories of immigration officers, including special agents and 
deportation officers, to initiate a vehicular pursuit. In the final 
rule, special agents and deportation officers have been removed from 
the list until such time as the Investigations and the Detention and 
Deportation Programs have developed their specific vehicle pursuit 
policy, the policy is approved by the Commissioner, and all of the 
special agents and/or deportation officers authorized to initiate 
vehicular pursuits have undergone the requisite pursuit driving 
training and received training in the new policy.

Section 287.10--Expedited Internal Review Process

    One commenter questioned the legitimacy of the Service's Office of 
Internal Audit, starting that the Service is trying to create by 
regulation an office similar in function to the Office of Professional 
Responsibility, which was transferred from the Service to the Office of 
the Inspector General of the Department pursuant to section 102(d) of 
the Inspector General Act Amendments of 1988, Pub. L. No. 100-504. The 
Service and the Department disagree. The Office of Internal Audit was 
established in the reorganization of the Service and approved by the 
Attorney General in April 1991. Regulations have been drafted wherein 
the Director of Internal Audit is responsible, in part, for providing 
the capability to investigate alleged misconduct by Service employees 
and for coordinating that program with other agencies within the 
Department. The transfer of the Office of Professional Responsibility 
from the Service to the Office of the Inspector General neither 
relieved Service management from responsibility for ensuring proper 
employee conduct nor precluded Service management from exercising its 
fundamental management authorities to identify and correct employee 
misconduct.
    One commenter stated that the proposed rule in Sec. 287.10 was 
insufficiently specific because it stated only that allegations of 
misconduct would be referred ``promptly'' and did not: describe how the 
process for resolution would be expedited; describe the circumstances 
under which a Service employee, against whom allegations were made, 
might not be notified of the allegations; indicate that more serious 
allegations would be handled differently than less serious ones; call 
for the involvement of operational peers or supervisors in resolving 
allegations; and eliminate from involvement in the process management 
officials who lack law enforcement experience. It is not appropriate to 
incorporate the specific requirements for the handling of alleged 
violations of the enforcement standards into administrative rulemaking, 
and therefore, no change has been made to the final rule.

Legal Sufficiency

    Sixty-nine advocacy organizations and individuals filed 
substantially similar or identical comments stating that the 
regulations are legally insufficient to meet the legislative mandate 
set forth by Congress. These comments are generally summarized below 
and followed by specific comments and responses.
    The commenters stated that the regulations are legally insufficient 
because they fail to comply with the congressional mandates: (1) to 
define the enforcement authority; (2) to elaborate on the scope and 
limits of such authority and to formulate written policies, directives, 
rules, and regulations to ensure the exercise of that authority within 
those limits; (3) to provide training for officers in how to exercise 
the discretionary authority granted; and (4) to outline a formal 
procedure for agency accountability to the community when the authority 
has been exercised. The commenters stated that the regulations are 
insufficiently specific and detailed on each of these subjects.
    While the Service agrees with many of the suggestions regarding 
appropriate law enforcement standards as consistent with Department 
policy applicable to all law enforcement agencies, the Service 
disagrees that these regulations are either the appropriate vehicle to 
specify the detail of such standards, or that Congress mandated such a 
degree of specificity. The commenters effectively requested that the 
Service and the Department provide specific guidelines for 
discretionary decisions under other legal constraints and sound 
judgment, detailed procedures of daily operation, and substantive 
training materials, timetables, and protocols that are encompassed in 
enforcement manuals, supervisory review procedures, and training 
curricula. For reasons discussed in greater detail below, the Service 
will not provide this information and guidance in regulatory form; the 
Department declines to make an exception to standing policies for the 
management of the criminal justice system in the Executive Branch.
    The suggestions made by these comments are appropriately directed 
to the functions of training and management, not administrative 
rulemaking. The Service and the Department agree with many of these 
suggestions, and, as noted below, have either incorporated them into 
existing training and management guidelines or are in the process of 
doing so. A section-by-section discussion of these comments follows.

Section 287.1(g)--Training

    The commenters criticized Sec. 287.1(g) for not providing 
sufficient detail regarding the substance of the training that must be 
completed by Service officers prior to assuming the new enforcement 
authority provided by section 503 of IMMACT. The commenters noted that 
neither the course subjects, length, nor materials are specified, and 
stated that the regulations should at the very least indicate how the 
curriculum of existing Service training programs will be amended.
    The commenters also alleged that ``nothing new'' is added by these 
regulations because all Service officers have already completed one 
course of basic immigration law training. The commenters suggested that 
the regulations should require that Service officers attend additional 
training before assuming additional enforcement authority. Finally, the 
commenters suggested that the regulations should require periodic 
attendance by Service officers at national or local training events 
devoted to new legal standards, case decisions, and Service 
interpretations of the law.
    In response, the Service notes that these commenters appear to have 
assumed that Service officers who have previously completed a course of 
basic immigration law enforcement training will not be required to 
undergo additional training before being authorized to undertake the 
enhanced enforcement authority prescribed in section 503. However, 
Sec. 287.5(c)(4)(iii) of the proposed rule specifically stated that no 
immigration officer could assume enhanced arrest authority until the 
Director of Training had certified that the immigration officer had 
completed a training course encompassing such arrests and the standards 
for enforcement activities specified in Sec. 287.8 of the regulations. 
Virtually all affected officers will receive additional training during 
the planned one-year interval between the publication in the Federal 
Register of this final rule and its effective date. This training is 
currently being developed in conjunction with other components of the 
Department to ensure that the training is consistent with existing 
training on the execution of law enforcement authorities and the 
investigative and prosecutorial policies of the Department.
    The Service agrees that existing training courses in basic law 
enforcement should be amended to include the training required by 
section 503; these curricula are in the process of being revised. 
Furthermore, the Service agrees that officers should receive training 
throughout their careers regarding new statutes, legal precedent, and 
policies for enforcement. Service guidelines and training programs will 
be continually updated to meet these needs. Precisely because judicial 
precedent and the Department's investigative and prosecutorial policies 
are constantly evolving, the Department concludes that it is not 
appropriate to further specify in regulations the curricula or 
frequency of training programs. Moreover, daily supervision to ensure 
compliance with legal standards enunciated by Congress and the courts 
is generally more effective and efficient than developing detailed 
statements in the form of regulations that cannot provide guidance in 
all situations.

Sections 287.5(a)(1) and 287.8(b)--Power to Interrogate and Detain

    The commenters suggested that the concept of a ``show of 
authority'' to restrain the freedom of an individual to walk away under 
Sec. 287.8(b)(1) be expanded to specifically include verbal or 
psychological abuse. The term ``show of authority'' in the proposed 
rule was intended to emphasize the intimidating gestures are prohibited 
during pre-detention questioning. However, the Service has decided to 
eliminate the term ``show of authority'' as well as the language ``by 
means of physical force'' in the final rule, thereby clarifying that 
any action taken by an immigration officer during pre-detention 
questioning must not lead the person being questioned to believe that 
he or she is not free to leave the presence of the officer. The 
Service's training program will ensure that all immigration officers 
have a thorough understanding of proper procedures for conducting pre-
detention questioning.
    The commenters also suggested that Sec. 287.8(b)(2) be 
substantially amended to include current judicial precedent defining 
``reasonable suspicion'' and the general authority to interrogate and 
detain. Binding judicial precedent such as Brewer v. Williams, 430 U.S. 
387 (1977), is subject to revision in the ongoing process of 
litigation, and would not be appropriate to codify.

Sections 287.5(c) and 287.8(c)--Power and Authority to Arrest

    The commenters generally stated that the provisions in 
Secs. 287.5(c) and 287.8(c) do not incorporate the ``standard with 
respect to enforcement'' mandated by section 503 of IMMACT. The 
commenters suggested that the regulations be amended to incorporate the 
judicial construction of ``reason to believe,'' and to require 
compliance with outstanding court orders regarding arrest and post-
arrest procedures. As stated previously, judicial precedent and other 
policy standards are subject to revision and are not appropriate to 
codify. The Service is clearly bound by such interpretations, including 
those set forth in Gerstein v. Pugh, 420 U.S. 103 (1975). Furthermore, 
the Service is bound to comply with outstanding court orders, and a 
regulatory provision to that effect is unnecessary. The commenters also 
suggested that the specific provisions of a temporary settlement 
agreement in Lopez v. INS, No. CV 78-1912-WMB (C.D. Cal. August 24, 
1992), be incorporated into the final rule. The Service declines this 
suggestion for the previously stated reasons, as well as for the fact 
that nothing in the Lopez case has required the Service to promulgate 
regulations on this subject.
    One commenter criticized these sections for permitting individuals 
who have not fulfilled the statutory training requirement for enhanced 
arrest authority to be designated as service officers with arrest 
authority. However, all officers who are designated to have such 
authority must receive the appropriate training pursuant to 
Secs. 287.5(c)(4) (iii)-(iv). The commenter also stated that 
Sec. 287.5(c)(5), in specifying the authority for arrests under section 
274 of the Act, failed to distinguish adequately between arrests with 
and without a warrant. However, this section of the rule incorporates 
the enforcement standard regarding arrests set forth in Sec. 287.8(c), 
which includes a rule requiring officers whenever possible to obtain a 
warrant prior to arrest. In criminal cases, pursuant to Sec. 287.5(c) 
(2) and (3), the issuance of such a warrant is reviewed by an Assistant 
United States Attorney and a Magistrate Judge before an arrest is 
effected.

Sections 242.2(c)(1) and 287.5(e)(2)--Arrest Warrants

    The commenters stated that Sec. 242.2(c)(1) should be amended to 
provide that an arrest warrant must be obtained unless there is a 
likelihood of the alien escaping before a warrant can be obtained. This 
suggestion calls for codification of the judicial precedents concerning 
exigent circumstances. For the reasons stated previously, the 
Department does not deem it appropriate to amend this rule to reflect 
evolving judicial standards. Such standards are incorporated into 
Service training programs, enforcement guidelines, and manuals.
    The commenters also suggested that the rule should specify which 
factors Service officers should use to determine the likelihood of 
escape. This is the type of discretionary detail that is appropriate in 
a training course and manual, but not in a regulation. Finally, the 
commenters suggested that evidence obtained in violation of rules 
requiring warrants should be suppressed in civil deportation hearings. 
The Department declines to extend by regulation into civil proceedings 
the exclusionary rule, which has heretofore been applied exclusively in 
criminal proceedings.

Sections 287.5(d)-(e) and 287.9(a)--Searches

    The commenters stated that the rule should provide specific 
standards governing searches of persons and property at or inside the 
border; strip and body cavity searches; vehicle stops and searches of 
persons and vehicles at or inside the border; and searches of private 
dwellings and lands. Section 503 of IMMACT does not require such 
specificity in enforcement regulations. Moreover, for that reasons set 
forth above, such standards will be appropriately addressed in Service 
training programs, guidelines, and enforcement manuals.

Sections 242.2(a)(1) and 287.7(a)(1)--Detainers

    The commenters stated that the authority for issuance of detainers 
in Secs. 242.2(a)(1) and 287.7(a)(1) of the proposed rule was overly 
broad because the authority to issue detainers is limited by section 
287(d) of the Act to persons arrested for controlled substances 
offenses. This comment overlooked the general authority of the Service 
to detain any individual subject to exclusion or deportation 
proceedings. See 8 U.S.C. 1225(b), 1252(a)(1). The detainer authority 
of these sections of the proposed rule were promulgated pursuant to 
this general authority. The statutory provision cited by the commenters 
places special requirements on the Service regarding the detention of 
individuals arrested for controlled substance offenses, but does not 
delimit the general detainer authority of the Service.

Section 287.8(d)--Vehicle Transportation

    The commenters suggested that the Service install seat belts in all 
vehicles transporting people. Current regulations under which all motor 
vehicles, except buses, are manufactured require the factory 
installation of seat belts. While the Service strongly agrees with the 
substance of the suggestion, it would be inappropriate to include any 
additional requirements within an administrative rule. The reference to 
seat belts has been deleted in the final rule because the standard 
governing the use of seat belts will be thoroughly addressed in Service 
training programs, guidelines, and enforcement manuals.

Section 287.8(e)--Vehicular Pursuits

    The commenters stated that the provisions of this section provided 
inadequate protection to public safety from accidental injury and death 
resulting from collisions following high-speed vehicular pursuits. The 
commenters suggested that the rule provide that a vehicular pursuit may 
not be initiated ``when there is imminent danger to the life and safety 
of innocent third parties.'' In response to a number of publicized 
incidents, the Service revised its guidelines and procedures governing 
vehicular pursuits. However, it would be inappropriate for the 
Department to codify the standard suggested by these commenters in the 
final rule. The standard is both unduly restrictive and underinclusive. 
Actual operating standards for Service officers must permit greater 
discretion and also specify in greater detail the criteria that should 
be considered in deciding whether to undertake a pursuit.
    The commenter also suggested that officers should be required to 
successfully complete a separate course in vehicle pursuit prior to 
having authority under this section. The Department agrees that only 
those officers specifically trained in pursuit techniques should be 
authorized to undertake a vehicular pursuit. The only such officers at 
present who have received such training are border patrol agents. 
Accordingly, this section has been amended to delete the designations 
of special agents and deportation officers.

Section 287.8(f)--Site Inspections

    The commenters stated that this section was legally insufficient 
and should provide more detailed requirements concerning the obtaining 
of warrants and consent for site inspections, the determination of 
``exigent circumstances,'' and standards and procedures for detention. 
Commenters specifically suggested that the rule incorporate judicial 
precedent based on the Fourth Amendment to the Constitution concerning 
the issuance of warrants, the obtaining of consent to enter a premises, 
and the detention of persons subject to questioning; that officers 
engaged in site inspections be trained in standards of enforcement and 
procedure pertaining to site inspections; that Service officers not 
deliberately provoke flight by persons in order to justify entry onto a 
premises; and that Service officers avoid ``unnecessary embarrassment'' 
of persons subject to site inspections, as well as verbal abuse, 
psychological abuse, threats, and unnecessary physical force.
    The Service agrees with the substance of most of the suggestions 
made by the commenters, but has not incorporated these suggestions into 
the final rule. For the reasons stated previously, the Department does 
not consider it appropriate to incorporate evolving judicial precedent 
into regulations. Such precedents are included in Service training 
programs, guidelines, and enforcement manuals. In addition, many of the 
procedural suggestions made by these commenters either are included in 
current Service training programs, guidelines, and enforcement manuals 
or will be considered for inclusion in these materials.
    The Department has also revised the ordering of the paragraphs 
within this section and has revised the text of paragraph (2) in the 
proposed rule, now designated as paragraph (4). The purpose of these 
changes is to clarify that the conditions set forth in this section for 
the conduct of site inspections do not restrict the authority of 
Service officers to enter into any area of a business or other activity 
to which the general public has access or onto open fields that are not 
farm or other outdoor agricultural operations without a warrant, 
consent, or any particularized suspicion.

Sections 287.5(f), 298.8(a) and 287.9--Use of Force and Firearms

    The commenters criticized these provisions of the proposed rule on 
a number of grounds. The commenters stated that the rule failed to 
address the 27 recommendations presented in the Audit Report, 
``Immigration and Naturalization Service Firearms Policy, September 
1991,'' prepared by the Department's Office of the Inspector General, 
Audit Division. The commenters asserted that the rule's statement that 
standards on the use of force are based on a force continuum model 
taught at the Federal Law Enforcement Training Center is inadequate and 
that the rule should adopt the recommendations of standards for law 
enforcement agencies developed by the Commission on Accreditation of 
Law Enforcement Agencies. The commenters also stated that the rule was 
too narrow in its statement of the authority to carry firearms; the 
commenters recommended that the rule adopt guidelines that reflect the 
``multiple psychological dimensions'' that might influence an officer's 
behavior. The commenters also urged that the rule incorporate a 
statement of 15 Shooting Reduction Techniques published in 1985 by the 
American Bar Foundation. The commenters stated that the principle of 
proportionality must be specifically set forth in the rule's guidelines 
on the use of force along with more specific guidelines on the use of 
force in specific situations that immigration officers are likely to 
encounter.
    The Service agrees that many of the recommendations made by the 
commenters are sound and should be incorporated into the training of 
immigration officers. In fact, a significant portion of the Service 
firearms training program is devoted to judgment shooting that includes 
providing specific scenarios that immigration officers are likely to 
face. However, as a matter of Departmental policy, it is not 
appropriate to incorporate such detailed guidelines for law enforcement 
activities into administrative rulemaking. Most of the recommendations 
made by the Inspector General in the Audit Report have been, or are in 
the process of being, adopted or implemented by the Service. The 
commenters noted that, in a letter dated August 7, 1991, the 
Commissioner stated that the issues raised by the Audit Report would be 
addressed in the process of drafting these regulations. The 
recommendations of the Audit Report have been taken into account in the 
formulation of this rule. Given the increased training that has been 
and is being developed, no specific response to these recommendations 
is provided in the regulatory text.
    Several of the commenters criticized the designation of certain 
Service officers to carry firearms. The Service disagrees with the 
suggestion that there is no justification for immigration inspectors or 
deportation officers to carry firearms; this authority is consistent 
with Department policy in the implementation of other criminal law 
enforcement authorities. Such authority is commensurate with the 
responsibility of such officers to exercise general arrest and control 
authority at frequent points of contact with potential criminal 
offenders. These officers have also been authorized to carry firearms 
for many years. The same commenters criticized the rule's delegation to 
the Commissioner of authority to designate certain other immigration 
officers to carry firearms, and stated that any such designations must 
be the subject of proposed rulemaking in accordance with the 
Administrative Procedure Act (APA). Neither section 503 of IMMACT nor 
the APA requires such discretionary grants of law enforcement 
authority, made within general guidelines set forth in regulations, to 
be the subject of rulemaking. Withdrawing the authority to make such 
designations would constitute an unwarranted burden on effective law 
enforcement. Moreover, the Commissioner's action is subject to approval 
by the Deputy Attorney General because the authority to carry a firearm 
is a traditional criminal law enforcement authority, not an authority 
intrinsic to the Service.
    The commenters also criticized Sec. 287.9(b) for failing to specify 
procedures to be followed in the investigation of a shooting incident 
involving a Service officer and for failing to provide specific rules 
regarding loss or theft of an approved firearm, inventory controls on 
firearms and ammunition, and care and storage of firearms and 
ammunition. Section 287.9(b) of the proposed rule stated that these 
matters would be addressed in guidelines promulgated by the 
Commissioner. It is the view of the Department that since all of these 
matters relate to internal administration, review, and discipline, the 
level of detail suggested by the commenters is not appropriate for 
administrative rulemaking, but should be addressed through operational 
guidelines. The requirement that these matters be governed according to 
guidelines promulgated by the Commissioner satisfies the congressional 
mandate set forth in section 503 of IMMACT.
    The commenters also criticized the authorization in Sec. 287.9(b) 
for Service officers to carry personally owned firearms while on duty, 
claiming that this will blur the distinction between official and 
personal use of firearms and inhibit Service control over the use of 
firearms. The proposed rule required that all firearms, including those 
personally owned, be approved subject to guidelines to be promulgated 
by the Commissioner. The authority to utilize a Service-approved, 
personally owned weapon is needed to respond to the physical diversity 
of the Service law enforcement workforce, including specific individual 
characteristics such as the size of an agent's hand. For example, many 
firearms do not comfortably fit in some smaller or larger hands. 
Accordingly, the rule is designed to allow flexibility while assuring 
that each individual agent's firearm has been approved. This is 
consistent with Departmental policy for the law enforcement community.

Section 287.8(a)(1)--Non-Deadly Force

    Several commenters criticized the rule for providing insufficient 
guidelines on the use of non-deadly force and insufficient inducements 
for the use of control devices, such as stun guns and gas guns, that do 
not inflict bodily injury. The commenters also stated that the rule 
should provide specific requirements for the use of self-defense 
equipment, including bullet-proof vests and helmets, by Service 
officers. The Service issues batons, tear gas, bullet proof vests, and 
helmets to law enforcement agents, as appropriate, and as appropriated 
funds permit; the Service does not issue stun guns, gas guns, or other 
such devices for routine law enforcement purposes. The Service and the 
Department agree that immigration officers should be trained in a broad 
range of options in the use of force in order to handle varying 
situations, that the use of lethal force should be minimized, and that 
Service officers should be minimized, and that Service officers should 
be furnished with self-protection equipment and techniques. Such 
standards cannot be appropriately addressed in rulemaking because of 
the numerous contingencies that are involved. Service officers are 
trained in such matters and receive updates in their training to 
incorporate new law enforcement techniques and new protective devices.

Section 287.8(a)(2)--Deadly Force

    The commenters stated that deadly force is an extreme measure and 
should only be used when an officer reasonably believes it is necessary 
in defense of human life, including the life of the officer or any 
person in immediate threat of serious physical harm. To this end, the 
commenters stated that the rule should require specialized training in 
specific types of situations to offer guidance to the officer in order 
to minimize the use of deadly force. Training should include ethics, 
human rights, and alternatives to the use of force and firearms. 
``Reasonable belief'' and ``serious bodily injury'' should be defined, 
according to the commenters, by current judicial standards. The 
commenters stated that the rule should require that where use of deadly 
force is likely, the officer should give a warning and allow sufficient 
time for the warning to be obeyed, but only when the officer or other 
persons are not at risk.
    The Department agrees with many of these suggestions. Furthermore, 
the rule is consistent with the Department's interpretation of 
Tennessee versus Garner, 471 U.S. 1 (1985), and its progeny, as applied 
to the missions of the respective Service officers. However, the 
Department disagrees that these issues can be appropriately addressed 
in this rule. As stated previously, Service training standards on the 
use of force are in accordance with prevailing guidelines for all 
federal law enforcement officials. These guidelines include provisions 
addressing the issues identified by the commenters.

Section 287.10--Expedited Internal Review Process

    The commenters criticized the expedited internal review process 
proposed in Sec. 287.10 as legally insufficient on a number of grounds. 
The commenters criticized the proposed rule for incorporating current 
policies and procedures of the Department's Office of the Inspector 
General and the Office of Professional Responsibility, stating that 
these policies and procedures do not provide safeguards that are 
``accessible and thorough.'' The commenters stated that the proposed 
rule provided inadequate notice to the public of its right to lodge 
complaints. The commenters suggested that an outreach system, including 
posters, private telephone for detainers, and a 24-hour toll-free 
number staffed by multi-lingual personnel be mandated in the final 
rule.
    The commenters also stated that a formal procedure for notifying 
complainants of the receipt and disposition of their complaints should 
be implemented by the rule. Confidentiality of complaints should be 
ensured to protect against retaliation, and information obtained in the 
process of investigation complaints should be excluded from use against 
the complainant in deportation or exclusion proceedings. The commenters 
stated that an official record of all complaints, even unsubstantiated 
complaints, should be retained so that individual officers can be 
properly evaluated and, if necessary, retrained, counseled, or 
investigated. Some of the commenters suggested that this information, 
including unsubstantiated complaints, should be kept in the officer's 
official personnel file.
    The commenters suggested that specific procedures for the 
investigation of complaints, including provisions for public hearings 
in the case of serious charges, should be included in the rule. The 
commenters also stated that an appeals process should be available in 
cases where complainants or Service officers are dissatisfied with an 
investigator's report and recommendations. Several commenters also 
stated that the process for reviewing complaints against Service 
officers must be improved in order to address allegations of human 
rights abuses by Service officers patrolling border areas adjacent to 
Mexico.
    In response, the Department notes that many of the suggestions made 
by these commenters are good practices that are addressed in the 
policies and procedures of the Department's investigative 
organizations. However, many of the specific recommendations regarding 
notification and timeliness in the completion of investigations are 
beyond the scope of this rule and must be addressed in these internal 
policies and procedures. The Department disagrees with the suggestion 
that an appeals process be provided. Sufficient review of investigatory 
reports is already provided in the policies and procedures mentioned 
above. Under these policies and procedures, confidentiality will be 
maintained in the course of these investigations. If cause for 
administrative action is found, the administrative process will be 
followed, and if grounds for civil or criminal prosecution are found, 
the appropriate litigation will be undertaken. The Department's 
investigative organizations currently have established procedures to 
protect the identities of complainants and witnesses from disclosure to 
Service personnel. Records of unsubstantiated allegations will be 
centrally maintained by the Service for the purposes identified in the 
comments and to provide a basis for management review of the number of 
allegations that have been made to determine whether additional action 
should be taken at a management level to improve operations and 
training, but these records will not be kept in an officer's official 
personnel file.
    The commenters also stated that implementation of this section of 
the rule should be immediate because the reasons for allowing a one-
year delay in the provisions of the rule governing enforcement 
authority do not apply to internal review. The Service and the 
Department would be in a position to agree if, immediately upon 
publication of the final rule, the standards were developed and the 
commensurate training was provided to designated immigration officers. 
However, the purpose of the one-year delayed implementation period is 
to enable the Service to develop the standards, provide the training, 
and certify all designated immigration officers. Because Sec. 287.10 
creates an expedited review process exclusively for violations of the 
standards that will be developed during the one-year implementation 
period, the effective date of Sec. 287.10 must coincide with all other 
sections of the final rule. However, this does not alter the 
established internal review process for alleged violations of existing 
enforcement policies and procedures.
    The commenters also expressed concern that Sec. 287.10(e) of the 
proposed rule, which would permit Department components to supplement 
or expand policies and procedures to ensure proper conduct of Service 
employees and officers, should not limit or undermine the regulations 
that govern the review of allegations of improper conduct by Service 
employees and officers. Neither the Department nor the Service intended 
that Sec. 287.10(e) be so construed. It is the intention of the 
Department to provide greater assurances that its officers and 
employees will conduct themselves appropriately, not to diminish 
existing standards.

Section 287.11--Disclaimer

    The commenters claimed that Sec. 287.11 would preclude victims of 
unlawful Service enforcement practices from pursuing remedies for 
regulatory violations. However, this disclaimer merely states that the 
regulations provide no independent grounds for relief in any civil or 
criminal proceeding by any party. It does not prevent any party from 
pursuing relief for alleged violations of the Constitution or laws of 
the United States. As such, the disclaimer is consistent with the 
holding in United States v. Caceres, 440 U.S. 741 (1979). This 
disclaimer is a standard element for all regulations affecting 
substantive federal criminal law enforcement authority and is only 
intended to ensure that the regulations do not create rights not 
otherwise existing in law.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving 
it, certifies that the rule will not have a significant economic impact 
on a substantial number of small entities.

Executive Order No. 12866

    This rule is not considered by the Department of Justice or the 
Immigration and Naturalization Service to be a ``significant regulatory 
action'' under E.O. 12866, section 3(f), Regulatory Planning and 
Review, and the Office of Management and Budget has waived its review 
process under section 6(a)(3)(A).

Executive Order No. 12612

    The regulations adopted herein will not have substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with E.O. 12612, it is determined that this rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Executive Order No. 12606

    The Attorney General certifies that she has assessed this rule in 
light of the criteria in E.O. 12606 and has determined that this rule 
will not have an impact on family formation, maintenance, or general 
well-being.

List of Subjects

8 CFR Part 242

    Administrative practice and procedure, Aliens.

8 CFR Part 287

    Immigration, Law enforcement officers.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE 
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL

    1. The authority citation for part 242 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 
1252b, 1254, 1362; 8 CFR part 2.

    2. Section 242.1 is amended by revising paragraph (a) to read as 
follows:


Sec. 242.1  Order to show cause and notice of hearing.

    (a) Commencement. Every proceeding to determine the deportability 
of an alien in the United States, except an alien who has been admitted 
to the United States under the provisions of section 217 of the Act and 
part 217 of this chapter other than such an alien who has applied for 
asylum in the United States, is commenced by the filing of an order to 
show cause with the Office of the Immigration Judge. In the proceeding, 
the alien shall be known as the respondent. An order to show cause may 
only be issued by the following immigration officers:
    (1) District directors (except foreign);
    (2) Deputy district directors (except foreign);
    (3) Assistant district directors for investigations;
    (4) Deputy assistant district directors for investigations;
    (5) Assistant district directors for deportation;
    (6) Deputy assistant district directors for deportation;
    (7) Assistant district directors for examinations;
    (8) Deputy assistant district directors for examinations;
    (9) Officers in charge (except foreign);
    (10) Assistant officers in charge (except foreign);
    (11) Chief patrol agents;
    (12) Deputy chief patrol agents;
    (13) Associate chief patrol agents;
    (14) Assistant chief patrol agents;
    (15) The Assistant Commissioner, Investigations;
    (16) Service center directors;
    (17) The Director, Organized Crime Drug Enforcement Task Force 
(OCDETF);
    (18) Assistant Director, OCDETF (New York, NY; Houston, TX; Los 
Angeles, CA; and Miami, FL);
    (19) The Assistant Commissioner, Refugees, Asylum and Parole; or
    (20) Supervisory asylum officers.
* * * * *
    3. Section 242.2 is amended by revising paragraphs (a)(1) and 
(c)(1) to read as follows:


Sec. 242.2  Apprehension, custody, and detention.

    (a) Detainers in general. (1) A detainer may be issued only in the 
case of an alien who there is reason to believe is amenable to 
exclusion or deportation proceedings under any provision of law. The 
following immigration officers are hereby authorized to issue 
detainers:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Immigration examiners;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vii) Immigration officers who need the authority to issue 
detainers in order to effectively accomplish their individual missions 
and who are designated, individually or as a class, by the 
Commissioner.
* * * * *
    (c) Warrant of arrest. (1) At the time of issuance of the Order to 
Show Cause, or at any time thereafter and up to the time the respondent 
becomes the subject of a duly issued warrant of deportation, the 
respondent may be arrested and taken into custody under the authority 
of a warrant of arrest. In the case of a respondent convicted on or 
after November 18, 1988, of an aggravated felony as defined in section 
101(a)(43) of the Act, the respondent shall not be released from 
custody, either before or after a determination of deportability, 
unless the respondent has been lawfully admitted and the respondent 
demonstrates to the satisfaction of the district director that he or 
she is not a threat to the community and is likely to appear before any 
scheduled hearings. A warrant of arrest may be served only by those 
immigration officers listed in Sec. 287.5(e)(2) of this chapter. A 
warrant of arrest may be issued only by the following immigration 
officers:
    (i) District directors (except foreign);
    (ii) Deputy district directors (except foreign);
    (iii) Assistant district directors for investigations;
    (iv) Deputy assistant district directors for investigations;
    (v) Assistant district directors for deportation;
    (vi) Deputy assistant district directors for deportation;
    (vii) Assistant district directors for examinations;
    (viii) Deputy assistant district directors for examinations;
    (ix) Officers in charge (except foreign);
    (x) Assistant officers in charge (except foreign);
    (xi) Chief patrols agents;
    (xii) Deputy chief patrol agents;
    (xiii) Associate chief patrol agents;
    (xiv) Assistant chief patrol agents;
    (xv) The Assistant Commissioner, Investigations;
    (xvi) The Director, Organized Crime Drug Enforcement Task Force 
(OCDETF); or
    (xvii) Assistant Director, OCDETF (New York, NY; Houston, TX; Los 
Angeles, CA; and Miami, FL).
* * * * *
    4. Section 242.4 is revised to read as follows:


Sec. 242.4  Fingerprints and photographs.

    Every alien 14 years of age or older against whom proceedings are 
commenced under this part by service of an order to show cause shall be 
fingerprinted and photographed. Such fingerprints and photographs shall 
be made available to Federal, State, and local law enforcement agencies 
upon request to the district director or chief patrol agent having 
jurisdiction over the alien's record. Any such alien, regardless of his 
or her age, shall be photographed and/or fingerprinted if required by 
any immigration officer authorized to issue an order to show cause as 
listed in Sec. 242.1(a).

PART 287--FIELD OFFICERS; POWERS AND DUTIES

    5. The authority citation for part 287 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8 
CFR part 2.

    6. Section 287.1 is amended by:
    a. Removing paragraphs (c), (d), and (e);
    b. Redesignating paragraphs (f) through (i) as paragraphs (c) 
through (f) respectively; and
    c. Adding a new paragraph (g) to read as follows:


Sec. 287.1  Definitions.

* * * * *
    (g) Basic immigration law enforcement training. The phrase basic 
immigration law enforcement training, as used in Secs. 287.5 and 287.8 
of this part, means the successful completion of one of the following 
courses of training provided at the Immigration Officer Academy or 
Border Patrol Academy: Immigration Officer Basic Training Course after 
1971; Border Patrol Basic Training Course after 1950; and Immigration 
Detention Enforcement Officer Basic Training Course after 1977; or 
training substantially equivalent thereto as determined by the 
Commissioner with the approval of the Deputy Attorney General. The 
phrase basic immigration law enforcement training also means the 
successful completion of the Other than Permanent Full-Time (OTP) 
Immigration Inspector Basic Training Course after 1991 in the case of 
individuals who are OTP immigration inspectors. Conversion by OTP 
immigration to any other status requires training applicable to that 
position.
    7. Section 287.2 is revised to read as follows:


Sec. 287.2  Disposition of criminal cases.

    Whenever a district director or chief patrol agent has reason to 
believe that there has been a violation punishable under any criminal 
provision of the laws administered or enforced by the Service, he or 
she shall immediately initiate an investigation to determine all the 
pertinent facts and circumstances and shall take such further action as 
he or she deems necessary. In no case shall this investigation 
prejudice the right of an arrested person to be taken without 
unnecessary delay before a United States magistrate judge, a United 
States district judge, or, if necessary, a judicial officer empowered 
in accordance with 18 U.S.C. 3041 to commit persons charged with 
offenses against the laws of the United States.
    8. Section 287.5 is revised to read as follows:


Sec. 287.5  Exercise of power by immigration officers.

    (a) Power and authority to interrogate and administer oaths. Any 
immigration officer as defined in Sec. 103.1(q) of this chapter is 
hereby authorized and designated to exercise anywhere in or outside the 
United States the power conferred by:
    (1) Section 287(a)(1) of the Act to interrogate, without warrant, 
any alien or person believed to be an alien concerning his or her right 
to be, or to remain, in the United States, and
    (2) Section 287(b) of the Act to administer oaths and to take and 
consider evidence concerning the privilege of any person to enter, 
reenter, pass through, or reside in the United States; or concerning 
any matter which is material or relevant to the enforcement of the Act 
and the administration of the Immigration and Naturalization Service.
    (b) Power and authority to patrol the border. (1) Section 287(a)(3) 
of the Act authorizes designated immigration officers, as listed in 
paragraph (b)(2) of this section, to board and search for aliens, 
without warrant, any vessel within the territorial waters of the United 
States and any railway car, aircraft, conveyance, or vehicle within a 
reasonable distance from any external boundary of the United States; 
and within a distance of twenty-five miles from any such external 
boundary to have access, without warrant, to private lands, but not 
dwellings, for the purpose of patrolling the border to prevent the 
illegal entry of aliens into the United States.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power to patrol the border 
conferred by section 287(a)(3) of the Act:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Immigration inspectors (seaport operations only);
    (iv) Immigration examiners and deportation officers when in the 
uniform of an immigration inspector and performing inspections or 
supervising other immigration inspectors performing inspections 
(seaport operations only);
    (v) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vi) Immigration officers who need the authority to patrol the 
border under section 287(a)(3) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner.
    (c) Power and authority to arrest. (1) Arrests of aliens under 
section 287(a)(2) of the Act for immigration violations.
    (i) Section 287(a)(2) of the Act authorizes designated immigration 
officers, as listed in paragraph (c)(1)(ii) of this section, to arrest 
any alien, without warrant, who in the presence or view of the 
immigration officer is entering or attempting to enter the United 
States in violation of any law or regulation made in pursuance of law 
regulating the admission, exclusion, or expulsion of aliens, or to 
arrest any alien in the United States if the immigration officer has 
reason to believe that the alien is in the United States in violation 
of any such law or regulation and is likely to escape before a warrant 
can be obtained for his or her arrest. When making an arrest, the 
designated immigration officer shall adhere to the provisions of the 
enforcement standard governing the conduct of arrests in Sec. 287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(2) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Immigration examiners;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest aliens 
under section 287(a)(2) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner.
    (2) Arrests of persons under section 287(a)(4) of the Act for 
felonies regulating the admission, exclusion, or expulsion of aliens. 
(i) Section 287(a)(4) of the Act authorizes designated immigration 
officers, as listed in paragraph (c)(2)(ii) of this section, to arrest 
persons, without warrant, for felonies that have been committed and 
that are cognizable under any law of the United States regulating the 
admission, exclusion, or expulsion of aliens, if the immigration 
officer has reason to believe that the person is guilty of such felony 
and if there is a likelihood of the person escaping before a warrant 
can be obtained for his or her arrest. When making an arrest, the 
designated immigration officer shall adhere to the provisions of the 
enforcement standard governing the conduct of arrests in Sec. 287.8(c) 
of this part.
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(4) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Immigration examiners;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(4) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner with the approval of the Deputy Attorney 
General.
    (3) Arrests of persons under section 287(a)(5)(A) of the Act for 
any offense against the United States. (i) Section 287(a)(5)(A) of the 
Act authorizes designated immigration officers, as listed in paragraph 
(c)(3)(ii) of this section, to arrest persons, without warrant, for any 
offense against the United States if the offense is committed in the 
immigration officer's presence while the immigration officer is 
performing duties relating to the enforcement of the immigration laws 
at the time of the arrest and there is a likelihood of the person 
escaping before a warrant can be obtained for his or her arrest. When 
making an arrest, the designated immigration officer shall adhere to 
the provisions of the enforcement standard governing the conduct of 
arrests in Sec. 287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(5)(A) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (E) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(A) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner with the approval of 
the Deputy Attorney General.
    (4) Arrests of person under section 287(a)(5)(B) of the Act for any 
felony. (i) Section 287(a)(5)(B) of the Act authorizes designated 
immigration officers, as listed in paragraph (c)(4)(iii) of this 
section, to arrest persons, without warrant, for any felony cognizable 
under the laws of the United States if:
    (A) The immigration officer has reasonable grounds to believe that 
the person to be arrested has committed or is committing such a felony;
    (B) The immigration officer is performing duties relating to the 
enforcement of the immigration laws at the time of the arrest;
    (C) There is a likelihood of the person escaping before a warrant 
can be obtained for his or her arrest; and
    (D) The immigration officer has been certified as successfully 
completing a training program which covers such arrests and the 
standards with respect to the enforcement activities of the Service as 
defined in Sec. 287.8.
    (ii) When making an arrest, the designated immigration officer 
shall adhere to the provisions of the enforcement standard governing 
the conduct of arrests in Sec. 287.8(c).
    (iii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the arrest power conferred by 
section 287(a)(5)(B) of the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors (permanent full-time immigration 
inspectors only);
    (E) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 287(a)(5)(B) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner with the approval of 
the Deputy Attorney General.
    (iv) Notwithstanding the authorization and designation set forth in 
paragraph (c)(4)(iii) of this section, no immigration officer is 
authorized to make an arrest for any felony under the authority of 
section 287(a)(5)(B) of the Act until such time as he or she has been 
certified by the Director of Training as successfully completing a 
training course encompassing such arrests and the standards for 
enforcement activities as defined in Sec. 287.8 of this part. Such 
certification shall be valid for the duration of the immigration 
officer's continuous employment, unless it is suspended or revoked by 
the Commissioner or the Commissioner's designee for just cause.
    (5) Arrests of persons under section 274(a) of the Act who bring 
in, transport, or harbor certain aliens, or induce them to enter. (i) 
Section 274(a) of the Act authorizes designated immigration officers, 
as listed in paragraph (c)(5)(ii) of this section, to arrest persons 
who bring in, transport, or harbor aliens, or induce them to enter the 
United States in violation of law. When making an arrest, the 
designated immigration officer shall adhere to the provisions of the 
enforcement standard governing the conduct of arrests in Sec. 287.8(c).
    (ii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are authorized and 
designated to exercise the arrest power conferred by section 274(a) of 
the Act:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Immigration inspectors;
    (E) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (F) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (G) Immigration officers who need the authority to arrest persons 
under section 274(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner with the approval of the Deputy Attorney 
General.
    (6) Custody and transportation of previously arrested persons. In 
addition to the authority to arrest pursuant to a warrant of arrest in 
paragraph (e)(2)(i) of this section, detention enforcement officers who 
have successfully completed basic immigration law enforcement training 
are hereby authorized and designated to take and maintain custody of 
and transport any person who has been arrested by an immigration 
officer pursuant to paragraphs (c)(1) through (c)(5) of this section.
    (d) Power and authority to conduct searches. (1) Section 287(c) of 
the Act authorizes designated immigration officers, as listed in 
paragraph (d)(2) of this section, to conduct a search, without warrant, 
of the person and of the personal effects in the possession of my 
person seeking admission to the United States if the immigration 
officer has reasonable cause to suspect that grounds exist for 
exclusion from the United States under the Act that would be disclosed 
by such search.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power to conduct searches 
conferred by section 287(c) of the Act:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Immigration examiners;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vii) Immigration officers who need the authority to conduct 
searches under section 287(c) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner.
    (e) Power and authority to execute warrants. (1) Search warrants. 
The following immigration officers who have successfully completed 
basic immigration law enforcement training are hereby authorized and 
designated to exercise the power conferred by section 287(a) of the Act 
to execute a search warrant:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above, and
    (iv) Immigration officers who need the authority to execute search 
warrants under section 287(a) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner with the approval of 
the Deputy Attorney General.
    (2) Arrest warrants. (1) Immigration violations. The following 
immigration officers who have successfully completed basic immigration 
law enforcement training are hereby authorized and designated to 
exercise the power pursuant to section 287(a) of the Act to execute 
warrants of arrest for administrative immigration violations issued 
under section 242 of the Act or to execute warrants of criminal arrest 
issued under the authority of the United States:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers (warrants of arrest for 
administrative immigration violations only);
    (E) Immigration inspectors;
    (F) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to execute arrest 
warrants for immigration violations under section 287(a) of the Act in 
order to effectively accomplish their individual missions and who are 
designated, individually or as a class, by the Commissioner, for 
warrants of arrest for administrative immigration violations, and with 
the approval of the Deputy Attorney General, for warrants of criminal 
arrest.
    (ii) Non-immigration violations. The following immigration officers 
who have successfully completed basic immigration law enforcement 
training are hereby authorized and designated to exercise the power to 
execute warrants of criminal arrest for non-immigration violations 
issued under the authority of the United States:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (E) Immigration officers who need the authority to execute warrants 
of arrest for non-immigration violations under section 287(a) of the 
Act in order to effectively accomplish their individual missions and 
who are designated, individually or as a class, by the Commissioner 
with the approval of the Deputy Attorney General.
    (f) Power and authority to carry firearms. The following 
immigration officers who have successfully completed basic immigration 
enforcement training are hereby authorized and designated to exercise 
the power conferred by section 287(a) of the Act to carry firearms 
provided that they are individually qualified by training and 
experience to handle and safely operate the firearms they are permitted 
to carry, maintain proficiency in the use of such firearms, and adhere 
to the provisions of the enforcement standard governing the use of 
force in Sec. 287.8(a):
    (1) Border patrol agents, including aircraft pilots;
    (2) Special agents;
    (3) Deportation officers;
    (4) Detention enforcement officers;
    (5) Immigration inspectors;
    (6) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (7) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (8) Immigration officers who need the authority to carry firearms 
under section 287(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner with the approval of the Deputy Attorney 
General.
    9. Section 287.7 is amended by revising paragraph (a)(1) to read as 
follows:


Sec. 287.7  Detainer provisions under section 287(d)(3) of the Act.

    (a) Detainers in general. (1) A detainer may be issued only in the 
case of an alien who there is reason to believe is amenable to 
exclusion or deportation proceedings under any provision of law. The 
following immigration officers are hereby authorized to issue detainers 
under section 287(d)(3) of the Act:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Special agents;
    (iii) Deportation officers;
    (iv) Immigration inspectors;
    (v) Immigration examiners;
    (vi) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (vii) Immigration officers who need the authority to issue 
detainers under section 287(d)(3) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner.
* * * * *
    10. Part 287 is amended by adding Secs. 287.8, 287.9, 287.10, and 
287.11 to read as follows:


Sec. 287.8  Standards for enforcement activities.

    The following standards for enforcement activities contained in 
this section must be adhered to by every immigration officer involved 
in enforcement activities. Any violation of this section shall be 
reported pursuant to Sec. 287.10.
    (a) Use of force. (1) Non-deadly force. (i) Non-deadly force is any 
use of force other than that which is considered deadly force as 
defined in paragraph (a)(2) of this section.
    (ii) Non-deadly force may be used only when a designated 
immigration officer, as listed in paragraph (a)(1)(iv) of this section, 
has reasonable grounds to believe that such force is necessary.
    (iii) A designated immigration officer shall always use the minimum 
non-deadly force necessary to accomplish the officer's mission and 
shall escalate to a higher level of non-deadly force only when such 
higher level of force is warranted by the actions, apparent intentions, 
and apparent capabilities of the suspect, prisoner, or assailant.
    (iv) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use non-deadly force should circumstances warrant 
it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers;
    (E) Immigration inspectors;
    (F) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to use non-deadly 
force under section 287(a) of the Act in order to effectively 
accomplish their individual missions and who are designated, 
individually or as a class, by the Commissioner.
    (2) Deadly force. (i) Deadly force is any use of force that is 
likely to cause death or serious bodily harm.
    (ii) Deadly force may be used only when a designated immigration 
officer, as listed in paragraph (a)(2)(iii) of this section, has 
reasonable grounds to believe that such force is necessary to protect 
the designated immigration officer or other persons from the present 
danger of death or serious bodily harm.
    (iii) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to exercise the power conferred by section 
287(a) of the Act to use deadly force should circumstances warrant it:
    (A) Border patrol agents, including aircraft pilots;
    (B) Special agents;
    (C) Deportation officers;
    (D) Detention enforcement officers;
    (E) Immigration inspectors;
    (F) Immigration examiners when in the uniform of an immigration 
inspector and performing inspections or supervising other immigration 
inspectors performing inspections;
    (G) Supervisory and managerial personnel who are responsible for 
supervising the activities of those officers listed above; and
    (H) Immigration officers who need the authority to use deadly force 
under section 287(a) of the Act in order to effectively accomplish 
their individual missions and who are designated, individually or as a 
class, by the Commissioner with the approval of the Deputy Attorney 
General.
    (b) Interrogation and detention not amounting to arrest. (1) 
Integration is questioning designed to elicit specific information. An 
immigration officer, like any other person, has the right to ask 
questions of anyone as long as the immigration officer does not 
restrain the freedom of an individual, not under arrest, to walk away.
    (2) If the immigration officer has a reasonable suspicion, based on 
specific articulable facts, that the person being questioned is, or is 
attempting to be, engaged in an offense against the United States or is 
an alien illegally in the United States, the immigration officer may 
briefly detain the person for questioning.
    (3) Information obtained from this questioning may provide the 
basis for a subsequent arrest, which must be effected only by a 
designated immigration officer, as listed in Sec. 287.5(c). The conduct 
of arrests is specified in paragraph (c) of this section.
    (c) Conduct of arrests. (1) Authority. Only designated immigration 
officers are authorized to make an arrest. The list of designated 
immigration officers varies depending on the type of arrest as listed 
in Sec. 287.5(c)(1) through (c)(5).
    (2) General procedures. (i) An arrest shall be made only when the 
designated immigration officer has reason to believe that the person to 
be arrested has committed an offense against the United States or is an 
alien illegally in the United States.
    (ii) A warrant of arrest shall be obtained whenever possible prior 
to the arrest.
    (iii) At the time of the arrest, the designated immigration officer 
shall, as soon as it is practical and safe to do so:
    (A) Identify himself or herself as an immigration officer who is 
authorized to execute an arrest; and
    (B) State that the person is under arrest and the reason for the 
arrest.
    (iv) With respect to an alien arrested and administratively charged 
with being in the United States in violation of law, the arresting 
officer shall adhere to the procedures set forth in Sec. 287.3 if the 
arrest is made without a warrant, and to the procedures set forth in 
Sec. 242.2(c)(2) of this chapter if the arrest is made with a warrant.
    (v) With respect to a person arrested and charged with a criminal 
violation of the laws of the United States, the arresting officer shall 
advise the person of the appropriated rights as required by law at the 
time of the arrest, or as soon thereafter as practicable. It is the 
duty of the immigration officer to assure that the warnings are given 
in a language the subject understands, and that the subject 
acknowledges that the warnings are understood. The fact that a person 
has been advised of his or her rights shall be documented on 
appropriate Service forms and made a part of the arrest record.
    (vi) Every person arrested and charged with a criminal violation of 
the laws of the United States shall be brought without unnecessary 
delay before a United States magistrate judge, a United States district 
judge or, if necessary, a judicial officer empowered in accordance with 
18 U.S.C. 3041 to commit persons charged with such crimes. Accordingly, 
the immigration officer shall contact an Assistant United States 
Attorney to arrange for an initial appearance.
    (vii) The use of threats, coercion, or physical abuse by the 
designated immigration officer to induce a suspect to waive his or her 
rights or to make a statement is prohibited.
    (d) Transportation. (1) Vehicle transportation. All persons will be 
transported in a manner that ensures the safety of the persons being 
transported. When persons arrested or detained are being transported by 
vehicle, each person will be searched as thoroughly as circumstances 
permit before being placed in the vehicle. The person being transported 
shall not be handcuffed to the frame or any part of the moving vehicle 
or an object in the moving vehicle. The person being transported shall 
not be left unattended during transport unless the immigration officer 
needs to perform a law enforcement function.
    (2) Airline transportation. The escorting officer(s) must abide by 
all Federal Aviation Administration and airline carrier rules and 
regulations pertaining to weapons and the transportation of prisoners.
    (e) Vehicular pursuit. (1) A vehicular pursuit is an active attempt 
by a designated immigration officer, as listed in paragraph (e)(2) of 
this section, in a designated pursuit vehicle to apprehend fleeing 
suspects who are attempting to avoid apprehension. A designated pursuit 
vehicle is defined as a vehicle equipped with emergency lights and 
siren, placed in or on the vehicle, that emit audible and visual 
signals in order to warn others that emergency law enforcement 
activities are in progress.
    (2) The following immigration officers who have successfully 
completed basic immigration law enforcement training are hereby 
authorized and designated to initiate a vehicular pursuit:
    (i) Border patrol agents, including aircraft pilots;
    (ii) Supervisory personnel who are responsible for supervising the 
activities of those officers listed above; and
    (iii) Immigration officers who need the authority to initiate a 
vehicular pursuit in order to effectively accomplish their individual 
mission and who are designated, individually or as a class, by the 
Commissioner.
    (f) Site inspections. (1) Site inspections are Service enforcement 
activities undertaken to locate and identify aliens illegally in the 
United States, or aliens engaged in unauthorized employment, at 
locations where there is a reasonable suspicion, based on articulable 
facts, that such aliens are present.
    (2) An immigration officer may not enter into the non-public areas 
of a business, a residence including the curtilage of such residence, 
or a farm or other outdoor agricultural operation, except as provided 
in section 287(a)(3) of the Act, for the purpose of questioning the 
occupants or employees concerning their right to be or remain in the 
United States unless the officer has either a warrant or the consent of 
the owner or other person in control of the site to be inspected. When 
consent to enter is given, the immigration officer must note on the 
officer's report that consent was given and, if possible, by whom 
consent was given. If the immigration officer is denied access to 
conduct a site inspection, a warrant may be obtained.
    (3) Adequate records must be maintained noting the results of every 
site inspection, including those where no illegal aliens are located.
    (4) Nothing in this section prohibits an immigration officer from 
entering into any area of a business or other activity to which the 
general public has access or onto open fields that are not farms or 
other outdoor agricultural operations without a warrant, consent, or 
any particularized suspicion in order to question any person whom the 
officer believes to be an alien concerning his or her right to be or 
remain in the United States.


Sec. 287.9  Criminal search warrant and firearms policies.

    (a) A search warrant should be obtained prior to conducting a 
search in a criminal investigation unless a specific exception to the 
warrant requirement is authorized by statute or recognized by the 
courts. Such exceptions may include, for example, the consent of the 
person to be searched, exigent circumstances, searches incident to a 
lawful arrest, and border searches. The Commissioner shall promulgate 
guidelines governing officers' conduct relating to search and seizure.
    (b) In using a firearm, an officer shall adhere to the standard of 
conduct set forth in Sec. 287.8(a)(2). An immigration officer may carry 
only firearms (whether Service issued or personally owned) that have 
been approved pursuant to guidelines promulgated by the Commissioner. 
The Commissioner shall promulgate guidelines with respect to:
    (1) Investigative procedures to be followed after a shooting 
incident involving an officer;
    (2) Loss or theft of an approved firearm;
    (3) Maintenance of records with respect to the issuance of firearms 
and ammunition; and
    (4) Procedures for the proper care, storage, and maintenance of 
firearms, ammunition, and related equipment.


Sec. 287.10  Expedited internal review process.

    (a) Violations of standards for enforcement activities. Alleged 
violations of the standards for enforcement activities established in 
accordance with the provisions of Sec. 287.8 shall be investigated 
expeditiously consistent with the policies and procedures of the Office 
of Professional Responsibility and the Office of the Inspector General 
of the Department of Justice and pursuant to guidelines to be 
established by the Attorney General. Within the Immigration and 
Naturalization Service, the Office of Internal Audit is responsible for 
coordinating the reporting and disposition of allegations.
    (b) Complaints. Any persons wishing to lodge a complaint pertaining 
to violations of enforcement standards contained in Sec. 287.8 may 
contact the Department of Justice, P.O. Box 27606, Washington, DC, 
20038-7606, or telephone 1-800-869-4499.
    (c) Expedited processing of complaints. When an allegation or 
complaint of violation of Sec. 287.8 is lodged against an employee or 
officer of the Service, the allegation or complaint shall be referred 
promptly for investigation in accordance with the policies and 
procedures of the Department of Justice. At the conclusion of an 
investigation of an allegation or complaint of violation of Sec. 287.8, 
the investigative report shall be referred promptly for appropriate 
action in accordance with the policies and procedures of the Department 
of Justice.
    (d) Unsubstantiated complaints. When an investigative report does 
not support the allegation, the employee or officer against whom the 
allegation was made shall be informed in writing that the matter has 
been closed as soon as practicable. No reference to the allegation 
shall be filed in the official's or employee's official personnel file.
    (e) Jurisdiction of other Department of Justice organizations. 
Nothing in this section alters or limits, is intended to alter or 
limit, or shall be construed to alter or limit, the jurisdiction or 
authority conferred upon the Office of the Inspector General, the 
Office of Professional Responsibility, the Federal Bureau of 
Investigation, the United States Attorneys, the Criminal Division or 
the Civil Rights Division, or any other component of the Department of 
Justice, or any other order of the Department of Justice establishing 
policy or procedures for the administration of standards of conduct 
within the Department of Justice.


Sec. 287.11  Scope.

    With regard to this part, these regulations provide internal 
guidance on specific areas of law enforcement authority. These 
regulations do not, are not intended to, and shall not be construed to 
exclude, supplant, or limit otherwise lawful activities of the 
Immigration and Naturalization Service or the Attorney General. These 
regulations do not, are not intended to, shall not be construed to, and 
may not be relied upon to create any rights, substantive or procedural, 
enforceable at law by any party in any matter, civil or criminal. The 
Attorney General shall have exclusive authority to enforce these 
regulations through such administrative and other means as he or she 
may deem appropriate.

    Dated: August 7, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-19792 Filed 8-16-94; 8:45 am]
BILLING CODE 4410-10-M