HOULTON STATION TRANSPORTATION CHECK AND CH ECKPOINT REFRESHER LJJ UJUUJLL v\7 IS a P?tl??I ll IIBIIY a exnlnit transit nnties. Namath"! .attory authority for eneek is enntaineli in a use Seetinns1225 anIi1357 ot the INA. n oroao torm, the referenee I ritv eranteli by these seetinns permits the boarding and seareninu at ennveyanles, inelutlinu earriers inr aliens. I7. sens believed to lie aliens are eneeunteretl (urine suell insneetiens they may lie nuestienetl reuartlinu their right to lie or ?In?ammation an in tile Ilnitell States. sneak llneratiens? be familiar with relevant sections at law and ennrt decisions as well as the law at Arrest, Searen Seizure . l, Ill??ll, when nertertninu elleek meratinns. MAKE SURE TO LOOK FOR THE ENTIRE SERIES OF SLIDES REGARDING THE USER RISK-BASED APPROACH 300 Avenue NW Washington. DC 20229 50? US. Customs and Border Protection AUG 1 7 2010 MEMORANDUM FOR: All Chief Patrol - (6) FROM: Michael J. - - 11(5). Chief U.S. Border Patrol SUBJECT: Transportation Check Operations Transportation check (TC) is a critical component of our National Border Patrol Strategy. It directly supports our mission to prevent the entry of terrorists. terrorist weapons. smugglers. illegal aliens, and other contraband into the United States, as well as to deny further egress away from immediate border areas. It is an integral part of a layered enforcement approach that helps establish a substantial probability of apprehension, thus further deterring transnational criminal organizations who might otherwise attempt to circumvent linewatch and traffic check operations. TC is the inspection of common carriers, such as buses. passenger and freight trains. uircra?, and watercra? to apprehend smugglers and illegal aliens who utilize these modes of transportation to further their illegal entry into the interior of the United States. This key enforcement tool is part ofa defense-in-depth posture that effectively employs a minimum number of agents to accomplish substantial operational results. including a percentage of the arrests of illegal aliens from special interest countries. Statutory authority for conducting inspections ofcommon carriers is contained in 8 U.S.C. Sections 1225 and l357 of the Immigration and Nationality Act. In broad form, the authority granted by these sections permits boarding and searching conveyances, including common carriers, for aliens. This authority has evolved from a series of court decisious interpreting these sections. If persons believed to be aliens are encountered during such inSpections. they may be questioned regarding their right to be or to remain in the United States. Agents should be familiar with relevant sections of law and court decisions, as well as with The Law of Arrest. Search Seizure Manual. ELI-69. when performing TC operations. Initial egress transportation hubs are not always located within the immediate border area or 3 Border Patrol Sector Primary Operational Domain (POD). Transportation hubs are divided into two categories: Critical Transit Nodes and Secondary Transit Nodes. Critical Transit Nodes are de?ned as transportation hubs located in a transit zone within a sector?s POD that, le? unchecked, increase the probability that smugglers will move away from the border area. Secondary Transit Nodes are de?ned as tranSportation hubs located in a transit zone outside a sector?s POD that is addressed in response to sector intelligence or operations-driven requirements via existing/established resources or periodic or ongoing special operations. fransportation Check Operations Page 2 Operations Orders must document that this critical work is tied directly to improving border security while denying the use of the legitimate infrastructure by smuggling organizations. Therefore. steady state operational plans for TC in immediate border areas will have predicate conditions relating to threats of illegal cross-border smuggling and illegal entry, with Justification that includes the impact of TC on our immediate border effectiveness. TC plans for areas outside ofthc POD must also be targeted to mitigate threats and be driven by intelligence. Goals must align with the National Border Patrol Strategy and should include targeted activxty related to arresting and identifying smugglers and?or individuals who pose a threat. Other potential benefits and liabilities associated with planned TC efforts should also be considered. Pursuant to memorandum from Border Patrol Chief David V. Aguilar entitled. Creation 0/ Operation: Orders in January 29. 2008, operations that are outside the POD of the initiating sector. operations that may be construed as interior enforcement. and/or operations for which media interest is likely shall be classi?ed as Category 2 and require sector approval with Headquarters concurrence. In addition any interior enforcement activities must be coordinated with the respective U.S. Immigration and Customs Enforc Charge Participation from ICF will also require the creation of an Nothing in this guidance is intended to restrict the ability to conduct TC. Conducting these operations effectively requires proper planning and procedural compliance in order to ensure that we are operating within our legal authority and that the chain of command is well informed of an) enforcement eflons that may have a national impact. Chief Patrol Agents will ensure that aJl supervisors and agents under their command are awari ii . I and in com oliance with these requirements In . . . . - ssociatc Chief (5) 7) (C) orAssistantChiel 6). 7H0) of the Strategic Planning, Policy and Analysis Division - Policy Branch. Transportation Checks • Philosophy – why do we do them? • Location – where will we do them? • Statutory Authority: • INA 287(a)(1) authorizes agents to interrogate any alien (or person believed to be an alien) about his right to be or remain in the United States. This statute authorizes question of aliens and suspected aliens anywhere in the United States. • INA 287(a)(2) to arrest any alien who in his presence or view 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, expulsion, or removal of aliens, or to arrest any alien in the United States. • INA 287(a)(3) authorizes a Border Patrol agent to search conveyances within a reasonable distance from the border (generally 100 miles). • INA 235(d)(3): authorizes agents to consider evidence concerning the privilege of any alien (or person the agent suspects to be an alien) to enter, re-enter, transit through via any conveyance, or reside in the United States. UNITED STATES v. DRAYTON • The fourth amendment does not require officers to advise bus passengers of their right to not cooperate and to refuse consent to searches. • A bus passenger has the right to refuse consent to search and refuse to answer questions. • The officer does not have to advise them of this right. Transportation Checks United States v. Drayton, 536 U.S. 194 (2002) Almost always begin as consensual encounters • You may: • Identify yourself • Ask questions (citizenship, origin and destination, purpose of travel, etc.) • Request and examine identification • Request consent to search • You must not do or say anything that would cause a reasonable person to believe he wasn’t free to end the encounter (without reasonable suspicion). Student Guide Applied Authorities Day 12 Tran3portation Check Operation Flow Chart Encounters with Travelers Located at Bus Conn EPA Terminals, Ajlports and Train Stations or Onboard non Carriers Parked at Locations other than Immigration Checkpoints Suspicion at Outset ?Jone RC. Follow Guidelines for Consensual Encounters Anest on Common Carriers found in US. v. Drayton 11.5. None 1 Terrain ate Encounter None Investigative Detention to Resolve Agent?s Suspicion L. PJC. THIS DOCUMENT CONTAINS ATTORNEY CLIENT WORK PRODUCT ANDIOR PRJVILEGED ATTORNEYICLIENT COMMUNICATION. IT IS THEREFORE NOT AVAILABLE FOR RELEASE, DISCLOSURE OR. USE OUTSIDE OF CUSTOMS AND BORDER PROTECTION WITHOUT THE EXPRESS PRIOR APPROVAL OF THE COMMISSIONER OF CUSTOMS AND BORDER PROTECTION AND THE OFFICE OF THE CHIEF COUNSEL. (202} 334-2940. AA 7.0 SHO 1 Chapter I 2 Student Guide Applied Authorities Day I A Border Patrol Agent?s Uni?ed (Title 8 and 19) Arrest Authority Immigration Immigration Non? Non- F?elony Mistiemexamomr Immigration Immigration Administrative Felony Misdemeanor If not . Warrantiess Warrantless Warrantless Warrantless occurs In Arrest based Arrest Based on Arrest Based Arrest Based on Pmme on EC. on so- RC. of agent If net i 5. Occurs Warrantiess Warrantless Mm? outside Arrest Based Arrest Based Ilht?l rlr-un presence on FLC. '?Z?sf on P.C- i of agent . I In general, 19 U.S.C. 15893 governs such arrests, but in a rare case (most likely an administrative arrest for illegal entry) the more restrictive arrest rules set forth in INA rules would control. Source ofa Arrest Authority Title 8 Arrest Authority (INA 237 3 use. 1357) Immigration Immigration Non- Non- Felony Wlisdemeanor.?Ir Immigration Immigration Special Administra tive Felony Misdemeanor 111':an ts in? u.s.c. 8 U.S.C. a use. 3 use. likely ea 1357.133114]" 13 3 l3 to escape lfaetoecurs outside 8 U-S.C. 8 U.S.C. Must obtain Must obtain likely presence of arrest warrant arrest warrant to escape agent Title 19 Arrest Authority Immigration Immigration Non- Non- Felony Misdemeanor! Immigration Immigration Special Administrative Felony isdemeano Reqm ts lfactoccurs 19 U.S.C. 19 U.S-C. 19 U.S.C- in presence [5393 I9 H.513. l589a 1589:; 1539a None of agent If set occurs outside 19 U.S.C. Must obtain arrest 19 U.S.C. Must obtain presence of 1589a warrant 15 89a arrest warrant one agent Section 14.4(d), Border Patrol Handbook (1) Agents board the bus with the permission of the operator during a scheduled stop. (2) Up to gents board the bus in uniform or in plainclothes with badges visible. (3) Agents do not use the public address system on the bus and do not make a general announcement on-board the bus. (4) One agent inspects the passengers beginning at the rear of the bus and working forward. (5) One cover agent remains at the rear of the bus, and one cover agent remains at the front of the bus without blocking the door. (6) The contact agent approaches passengers from behind and speaks in a voice just loud enough for individual passengers to hear. (7) Agents do not block the aisle and do not obstruct the exit doors. (8) The contact agent identifies himself or herself and displays a badge upon approaching each passenger. (9) The contact agent may ask questions, request identification, and/or request consent to conduct a search or a frisk. (10) The contact agent is not required to advise passengers of their right to refuse to cooperate. (11)* Any passenger who refuses to answer questions or who chooses to exit the bus must be allowed to do so. *Note in reference to #11 As per the flow chart in previous slide, if Agent can develop reasonable suspicion, the subject may be detained for addition questioning.