From:

(b) (6), (b) (7)(C)

Sent:
To:
Subject:

6 Aug 2013 10:30:17 -0400
OPLA HQ Personnel;OPLA Field Personnel
ICE Employee Testimony in Immigration Court

Disse111i11atetl at t/1e req1test

t~f'Riah

Ra111lo1.:a11 •..

To All OPLA Attorney:;:
The testimony of IC'E officers and agents can be an in1portant tool in effectively litigating
admini:;trative cases before the Executive Office for I1nmigration Review (EOIR). However, a:;
with all aspects of EOIR case preparation, attorneys should carefully asse:;:; the fact:; and
circun1stances to determine \Vhether such testimony is necessary in order to achieve an
appropriate resolution consistent \Vith the n1ission and priorities of the agency. As you should be
aware, DHS regulation:; bar agency e1nployees from testifying without authorization from the
Office of the General Coun:;el (OGC), 6 C.F.R. § 5.44, which authority has been delegated to
OPLA. Accordingly, OPLA 's role in assessing whether an IC'E employee should testify in
Imn1igration ('ourt is both prudential and required by la\v. Furthern1ore, as prudent federal
e1nployees, we mu:;t :;erve as good steward:; of agency resource:; when a:;:;essing the
requirement:; for agent/officer testimony.
Since the rules of evidence and procedures in imn1igration court are son1etin1es fairly informal,
attorneys should also :;trive to protect officers and agent:; from being expo:;ed to unnece:;:;ary
challenge:; to their :;tate1nents by defense coun:;el which 1nay lead to an adver:;e credibility
finding by an imn1igration judge. As you are a\vare, such findings can jeopardize law
enforcen1ent officers' careers by n1inin1izing the value of their testin1ony in any future criminal
proceedings. See Giglio v. lJnited States, 405 U.S. 150, 154 (1972) (requiring prosecution to
di:;clo:;e any 1naterial is:;ues related to it:; witnesse:;' credibility).
Accordingly, I have decided to put the following process in place.
•

•
•

As soon as an OPLA attorney determines that an ICE officer's or agent's testin1ony is
essential to advancing the DHS position, the attorney n1ust submit a \Vritten request
outlining the proposed te:;ti1nony and explaining it:; :;ignificance to the ca:;e to the
i1nmediate supervi:;or.
If an OPLA Headquarters (HQ) Division is working \Vith the local office, the HQ
Division attorney n1ust concur in the request before it is submitted to the Chief('ounsel.
If the ChiefCoun:;el approves, he/:;he 1nust sub1nit, through the Field Legal Operations
chain-of-comn1and to the Deputy Principal Legal Advisor (DPLA) for a final decision.

Thi:; message :;hould al:;o serve as a re1ninder that if an ICE employee receives a :;ubpoena,
demand or request to provide oral or written testi1nony in any matter, including Im1nigration
('ourt, based on information acquired in the scope of their official duties, the employee must
obtain approval from the ('hief('ounsel (OCC') or his/her delegate prior to testifying. Chief

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 ('ounsel should remind local ERO and HSI counterparts of this requiren1ent and work
cooperatively with them.
Finally, you should be as cognizant of the lin1ited resources ofCBP and USC'IS in making
decisions on \Vhether or not to call their personnel as \Vitnesses in in1migration court
proceedings. Even if not required at the local level, please be sure to notify the appropriate local
Chief Counsel office when doing so.
I appreciate your cooperation.

Riah Ran1logan
Deputy Principal Legal Advisor
Office of the Principal Legal Advisor
U.S. l1nmigration and Customs Enforce1nent

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