arizona department of corrections (doc) - former 287(g) agreement with ice

8/14/2019 Arizona Department of Corrections (DOC) - former 287(g) agreement with ICE

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MEMORANDUM OF UNDERSTANDING

This Memorandum of Undemanding (MOU) constitutes an agreement bet\veen theUnited States Department of Homeland Security (DRS) and the Arizona Department ofCorrections (ADOC) under which U.S. Immigration and Customs Enforcement (ICE) amho::.nominated, trained an d certifiedADOe personnel to perform certain immigration enforcemer.ftmctions as specified herein. The ADOC represents the State ofArizona in the implemematic. .and administration of his MOU. It is the intent of he parties that this agreement will result ::enhanced capacity to deal with llumigration violalors in Arizona.L PURPOSE

The purpose oftltis MOU is. to se t forth the tellllS and conditions for this agreement tcauthorize selected ADOe personnel (participating ADOC personnel) to perfonn certainfunctions ofan immigration officer, and how those participating ADOC personnel win benominated. trained, authorized, an d supervised in performing the immigrat ion enforcementfunctions specif ied in this MOU.Nothing herein shall otherwise funit the jurisdiction and powers normally pOSSess.;cparticipating ADOC personnel as members of the ADOC. The exercise of immigration

enfOf(;IDent authority granted under this MOt; to participating ADOC personnel shall 0': ':;:,only as provided in this MOU.

II. AUTHORITYSection 287(g) of he Immigration and Nationality A c ~ 8 U.S.C. 1357(g). as ameneby the Homeland Security Aetoi2002, Public Law 107-276" authorize.. the Secretary of theDepartment ofHomeland Security. acting through the Under Secretary for Border andTransportation S e c u r i t y ~ to enter into written agreements with a State or any p o l i t i c a l . s u b d i v l ~ : .

of a State so. that qualified personnel can perform certain functions o.f an immigration office;This MOD constitutes such a writt en agreement.ID. POLICY

1bis MOU sets forth the scope ofme immigration officer functions that DHS if'.authorizing the participating ADOC personnel to perform. It sets forth with specificity T : . ~ -duration ofme authority conveyed and the specific lines of authQrity, including the r e q u i r > ; : : m ~ that participating ADOC personnel be subject to. ICE supervision while performing immigraL ' .related duties pursuant to this MOU. For the purposes of this MOU, ICE officers will provic

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supervision for participating ADOC personn.el only as to immigration enforcement functions.ADOC rerains supervision of al l other aspects of he employment of and performance of dt,me:by participating ADOC personnel.

Before participating ADOC personnel will be authori.2:ed to perform immigration o f f h ; ; ; : ~ :functions granted under this MOU, they must successfully complete mandatory training in theenforcement of federal immigration laws and policies as provided by DHS instructors and p a ~ examinations equivalent to those given to ICE officers. This MOLT further sets forthrequirements for regular review of this agreement. Only participating ADOC personnel \I; ' l l\.s ~ l e c t e d , trained. authorized and supervised as set out herein have authority pursuant to !hi!:MOU to conduct the i:m.migration offioer functions enmnerated in this MOU.

The ICE and ADOC points of contact fOr purposes ofthls MOr are identified inAppendix A.

IV, DESIGNAnON OF FUNCTIONSFor the purposes oftbis MOU, the functions that may be performed by participatingADoe personnel are indicated below with their associated authorities:

AUTHORITY

'The po-wer to interrogate any alien orperson believed to be an alien as to his rightto be or remain in the United States_ INA 287(a)(1) and 8 C.F.R. 287.5(a)(l).

The power and authority to administer oathsand to take and consider evidence. rnA 287(b) and 8 C.P.It. 287.5(a)(2),

The p o w ~ r to issue detainers. 8 C.F.R.287.7.

FUNCTIONS

.. Interrogate in order to determi::"probable cause for an immigran ..violation

Complete required crimina! alienprocessing, to includefingerprinting. photographing, ant:interviewing. for ICE SUperviSNreVlew

Prepare inunig:rati.on de amers ant:213, Record ofDeportablelInadmissible Alien fOlaliens in categories esrablishec "ICE supervisors

.. Prepare affidavits and take SW('.;-.statements .

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I AUTHORITY The authority to prepare chargingdocum.ents. INA Section 239, &C.F.R.239.1; INA S ~ - t i ( ) n 238,8 C.F.R 238.1;INA Section 241 a)(5), 8 C.F.R241.8; INASection 235(b)(1), 8 C.F.R. 235.3.

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FUNCTIONS

Prepare, as needed, a Notice toAppear (NTA) or other removalcharging document, as appropriate.including Notice of Imem toAdministratively Remove. Not[o..,:Intent to Reinstate RemovaL (':Notice ofInrent to Expeditiousl\Remove for signature ofICE of IC(for miens in categories establishedby ICE supervisors. . -_________________ t. .___ ........______ _"_ .

In the absence of a written agreement to the contrary, the policies and procedures to be utilizeby the participating ADOe personnel in exercising these authorities shaH be DRS policies an.procedutes. However, when engaged in immigration enforcement activities, no participatingADOe persor.m.el Will be expected or required to viola.te or otherwise fail to maintain ADOestandards of conduct, or be required to fail to abide by restrictions or limitations as mayotherwise be imposed by law, or ADOC rules, standards. or policies.

V. NOMINATION OF PERSONNELThe Di.rector, Arizona Department of Corrections, will initially nominate to ICE. eiuL(8) correction officer candidates and N.to (2) supervisory correction officer candidates 1


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participating ADOC personnel or scheduling of additional training classes may be based on tl :oral agreement of the p a r t i e s ~ but will be subject to all the requirements of this MOU.

VI. TRAINING OF PERSONNELICE will provide appropriai:e training of nominated and accepted ADOC personneltailored to the designated immigration functions and types of cases typically encountered b:,ADOC correctional personnel at a mutually designated site in Phoenix. A r i z o ~ utilizing le idesigned cUlT'iculum and competency testing. Training will include presentations on thisagreement, elements of his MOU. scope of immigration officer authority. immigration andnationality law, cross .cultu:raJ. issuesJ the ICE Use ofForce Policy. civil rights law. the USDepartment of Justice "Guidance Regarding The Use OfRace By Federal Law Enforcemen:Agencies" dated June 2003. public outreach and complaint procedures. liability and otherrelevant issues. ICE will provide all training materials. AnOe is l'esponsible for the salaries ~ _ : Iebenefits for any of its personnel being trained or performing duties under this MOU. ADOC vi IIcover the costs ofall candidates' traVel. housing and per diem whlle involved in training t ' e q u ! : , , - ~ ( !

for panicipation in this agreement.All nominated alld accepted personnel wiU receive specific training regarding theIrobligations under federal law and the Vienna Convention on Consular Relations to make proF -:notification upon the arrest or detention ofa foreign national.Approximately one year after the participatingADOe personnel are train-ed and cerra]];:'!

ICE will provide certified pCl'SQnnel "vith additional updated training .ou relevant administran'legal and operational issues related to the perfonnance ofimmigrarion officer functions, l i th :either party terminates this MOU pursuant to Section XVIl, below. Loc:al training on rekvul1administrative. legal and operational issues will be provided on an. ongoing basis by ICESUperviSOTS_

VII. CERTIFICATION AND AUTHORIZATIONThe ICE Training Division will certify in writing to the ICE Special Agent in ChargePhoenix, Arizona, the names of those ADoe personnel who successfully comple te training a::.:pass all required testing. Upon receipt of Training Division certification. the Special Agent h'Charge 'Will provide to the participating ADOC personnel a signed authorization to performspecified functions ofan immigration officer for an initial period ofone year from the date of 1::tauthorization. ICE will also provide a copy of he authorization to ADOC. The activities of :.personnel certified under this MOU will be evaluated by the ICE Immigration EnforremernAgents as addressed in Section IX. below.Authorization of an y participating ADOC personnel to act pursuant to this MOU may",:,revoked at any time by ICE or ADOC. Such revocation will require immediate notification (Ythe other party to this MOU. The Director. Arizona Department of Correct ions and the ICE

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Special Agent in Charge in Phoenix will be responsible for notification of tbe appropriatepersonnel in their respective agencies. I f any p a r t i ~ i p a t i n g ADOe personnel is the subject or


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X. LIABILITY AND RESPONSIBILITYADOC will. bear it s ow n costs and be responsible for any liability created as a result (':any act or action of its personnel. property and resources.Participating ADOC personnel shall no t be treated as federal employees except for

pmposes of he Federal Tort Claims Act, 28 U.S.C ..... 267 1-26&0, and worker's compensationclaims, 5 U.S.C. 8101 et seq. . when perfolIXrlng a function as authorized by this MOt). RU.S.C. 1357(g)(7). It is the understanding of he parties to this MOD that participating AD;personnel will have the same immunities and defenses as do ICE officers from personal liabil::from tort suits based on actions conducted incompliance ""ith this MOU. 8 U.S.C. 1357(g:'ICE will not be responsible for any intentional misconduct on the part of any participa.tingADOC personnel.

Participating ADOC personnel who are named as defendants in litigation arising f r o l ~ . activities carried om tmder this MOU may request representation by the U.S. Department ofJustice. Such requests must be made in writing directed to the Attorney General of he Unite.;:States, and be presented to the Office of the ChiefCou.nsel at 2035 N. Central Avenue, P h o e r ~ . : . Arizona 85004. Any request fo r representation must be clearly marked on each Nlinencommunication that th e information is ~ ' S u b j e c t to A t r . o r n e y ~ C l i e n t Privilege." The ChiefCounsel will forward the individual's request, together with a memorandum outlining the: f a c t u ~ j basis underlying the event(s) at issue in the lawsuit to the ICE Office of the Principal Lega!Advisor, which "Will fOIWard the request. the factual memorandum, and a statement of the vic\.\. ofICE with respect to whether such representation would be in the interest of he United Stat!:'to the Director of the Constitutional and Specialized Torts Staffof he Civil Division of theDepartment ofJustice. .

ADoe agrees to cooperate with any federal investigation related to this MOV to the Tl;extent its available powers. It is understood that infonnation provided by any ADOCpersonnel under threat of disciplinary action in an administrative investigation cannot be useeagainst that individual in subsequent criminal proceedings, consistent \-vith Garrity v. NewJersey, 385 U.S. 493. 87 S.Ct. 616, 17 L.Ed.2d 526 (1967).

The Supreme Court"s decision in Giglio v. United Slates, 405 U.S. 150,92 S.C!. 763,L.Ed.2d 104 (1972). relates to disclosure of potential impeacluru:tlt information about potem:i.witnesses or affiants in a criminal case or investigation. See also United States v. Henthom., '.F.2d 29 (9tb Cit. 1991). As the activities ofparticipati ngADOC personnel under this MOll alundertaken under federal authority, tqe participating personnel wil l comply with federalstandards and guidelines relating to such cases.

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XI. CIVIL RlGHTS STANDARDS AND PROVISION OF INTERPRETATIONSERVICESPursuant to this MOU) panicipating ADOe personnel will perform certain federalimmigration enforcement functions. In doing so. these participating personnel are bound by a;'federal civil rights statutes an d regulations, as wen as policy directives, including the ';.$,Department of Justice "Guidance Regarding The Use OfRace By Federal Law Enforcel'Uen1Agencies' dated June 2003.Pirticipating ADOC personnel will provide an opportunity for subjects with limitecEnglish language proficiency to request an interpreter. Qualified foreign language interpreter

will be provided by ADOC as needed.

XII. COMPLAINT PROCEDURESThe complaint reporting and resolution procedure for allegations of misconduct by

participating ADOC personnel designated, or activities undertalcen, under the authority of t h i ~ MOU is included at Appendix B.

XIII. REQUIRED REVIEW OF ACTIVITIESThe ICE Assistant Secretary and the Director, Arizona Department of Corrections, shu.;,establish a steering committee that will meet periodically to review and assess the immigratiOJ:enforcement activities that have been conducted pursuant to this MOU. The steering COIDlIDfl ,' .wiH meet periodically in Phoenix, Arizona at locations to be agreed upon by the parties. T h : ~ reviews are intended to assess the use made of immigration enforcementauthority and to ensl.compliance with the terms of:tbis MOD. Steering comminee participants will be supplied "''1: ..

specific infoDnarion on case reviews, individual participants' evaluations, complaints filed,media coverage. and. to the extent practicable, statistical information on increased immigranc;enforcement activity in the State of Arizona. An initial review moeting will be held no later tna..Tluine months after certification of the initial class of participating ADOC personnel under S e c l : ' " ' ~ i VII, above. .XIV. COMMUNITY OUTREACH

ADOC will, in its discretion, engage in community outreach with individuals andorganizations expressing an interest in tbis MOU. ICE may participate in such outreach uponADOC request.

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By signing this MOU, each party tepresents it is fully authorized to enter into thisagreement, and accepts the telIDS, responsibilities, obligations and limiu:tions of his Agreement,and agrees to be bound thereto to the fullest extent allowed by Jaw.

Ci2 . ~ - 1 t ( 1 ' 1 1 0 ~ Randy BeardsWorthActing Under SecretaryBorder and Transportation SecurityDepartment of Homeland SecurityDate

Je . ClarkA . g Assistant SecretaryU.S. Immigration and CustOlTIS Enforcement

~ . ~ l ) ~ r a t o ~ Sch .Arizona Departnlent of COITCctions

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arizona department of corrections (doc) - former 287(g) agreement with ice

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