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Attorney General Memo Giving
Incentives to Aliens
Who Provide Information Relating to Terrorists
November 28, 2001
MEMORANDUM TO THE ASSISTANT ATTORNEY GENERAL FOR THE CRIMINAL DIVISION,
THE DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, THE COMMISSIONER OF THE
IMMIGRATION AND NATURALIZATION SERVICE, AND ALL UNITED STATES ATTORNEYS
FROM: THE ATTORNEY GENERAL
SUBJECT: Incentives for Aliens Who Provide Information Relating to Terrorists
With respect to terrorists who are being sought by the United States or who plan
to commit
further violent acts against the United States, there may be aliens who have
useful and reliable information as to their whereabouts, their organizations,
and their plans, but who may be
reluctant to provide that information to law enforcement officials.
The Department of Justice, however, has the legal authority to offer incentives
to those aliens, whether living in the United States or abroad, to provide
reliable and useful information about
the terrorists and their plans. The Department's authority include the
approval of S
non-immigrant status for alien informants, the grant of parole, and the deferral
of
prosecutorial action to permit such aliens to enter or remain temporarily in the
United States.
I hereby direct you to pursue the use of S non-immigrant status in all
appropriate cases in order
to elicit reliable and useful information relating to terrorists, their
activities, and their whereabouts.
In appropriate cases where an alien is not eligible for S non-immigrant
status, but nonetheless provides information that is reliable and useful in the
apprehension of terrorists or prevention of
acts of terrorism, I direct you to consider deferring action on placing the
alien into removal proceedings or granting parole in the public interest to
allow the alien to enter and remain in the United States.
1. S Non-immigrant Status. Under Section 101(a)(15)(S) of the Immigration
and Nationality Act (INA), S non-immigrant status is available to certain alien
informants who have critical reliable information regarding either criminal
organizations (S-5) or terrorist operations (S-6). The
Attorney General and the Secretary of State, acting jointly, may grant S-6
non-immigrant status to an alien who has critical reliable information
concerning a terrorist organization, enterprise, or operation; is willing to
supply or has supplied that information to federal law enforcement
authorities or a federal court; will be or has been placed in danger as a result
of providing that information; and is eligible to receive a reward under 22
U.S.C. § 2708.
In addition, S-5 non-immigrant status may also be used to develop useful and
reliable information about any terrorist organization or enterprise that
violates federal criminal laws. The Attorney General may grant S-5 non-immigrant
status to an alien who has critical reliable information concerning a criminal
organization or enterprise; is willing to supply or has supplied such
information to federal or state law enforcement authorities or courts; and whose
presence in the United States the Attorney General determines is essential to
the success of an authorized criminal
investigation or successful prosecution of an individual involved in the
criminal organization or enterprise. I call your attention to the following
aspects of S non-immigrant status:
* The S nonimmigrant status applies not only to aliens who are currently within
the United States, but also permits aliens who are currently abroad to enter and
remain in the United States during
the authorized 3-year period of stay.
* There is a limit of 50 S-6 aliens per year, and the number of S-5 aliens is
limited to 200 per year. (The dependents of an alien admitted under S-5 or S-6
status may be admitted without numerical limitation under S-7 status.)
* The regulations at 8 C.F.R. § 214.2(t) provide for a federal law enforcement
agency (or a state law enforcement agency in an S-5 criminal case) to submit an
application on behalf of an alien informant to the Assistant Attorney General
for the Criminal Division, who will review the
case and certify the application to the Commissioner of the Immigration and
Naturalization Service ("INS") for decision.
* The United States Attorney with jurisdiction over the prosecution or
investigation that forms the basis for a request for S non-immigrant
classification must endorse and certify an application, and agree that no
promises may be, have been, or will be made that the alien will or may remain in
the United States in S or any other non-immigrant classification or parole,
adjust status to lawful permanent resident, or attempt to remain beyond the
authorized period of admission.
* The State Department must concur in granting an S-6 visa in a terrorism
case.
The S non-immigrant status provides an important tool to assist the United
States government in obtaining the information necessary to the identification,
disruption, and punishment of terrorist activities, and I encourage its use in
all appropriate cases. In the event that the INS reaches the numerical caps on
the granting of S-6 or S-5 status during a fiscal year, I hereby direct the INS
and the Criminal Division to continue processing those cases and to maintain a
waiting list of
eligible aliens until the INS can grant S status to those aliens in the
following fiscal year. Pending
the grant of such status, the INS may use its authority to parole or defer
action on those aliens
or purse other appropriate means within its authority to ensure the presence and
cooperation of
the aliens in relevant investigations.
2. Parole and Deferred Action. In addition to the S non-immigrant status,
the INS has other
options for dealing with aliens who are able to provide useful and reliable
information for the investigation, apprehension or prosecution of terrorists. I
hereby direct that in appropriate cases
where an alien has provided information that is reliable and useful in the
apprehension of terrorists
or prevention of terrorist acts, but who does not qualify for S non-immigrant
status, the relevant U.S. Attorney or the Criminal Division request that the INS
grant parole or defer action, as
described below. Under Section 212(d)(5)(A) of the INA, the INS can grant parole
to aliens on
a case-by-case basis where there is a significant public benefit in order to
allow such aliens to enter and remain in the United States, in accordance with
conditions attached to the grant of parole. For aliens already present in the
United States, the INS may exercise its prosecutorial discretion to
defer action on placing a removable alien into removal proceedings. Although
this action does not confer any tangible immigration status on the alien, it
places the alien into a "period of stay authorized by the Attorney
General," and thus preventing the alien from accruing any additional period
of unlawful presence for purposes of section 212(a)(9)(B) and (C) of the Act.
The existing regulations, 8 C.F.R. § 274a.12(c)(11) and (14), allow the INS to
grant work authorization in
appropriate cases to aliens who have been granted parole or deferred action.
These authorities provide additional tools for the United States to encourage
aliens who have
useful and reliable information regarding terrorists and their activities and
whereabouts to come forward and cooperate with investigators. I hereby direct
the INS, in consultation with the
Criminal Division and the United States Attorneys, either to grant parole or to
defer action in appropriate cases for cooperating aliens for whom the S
non-immigrant status is not available, as well as for aliens who awaits approval
of an application for S non-immigrant status. If the INS declines to grant
parole or defer action in any particular case, the Criminal Division may within
seven days refer the matter to the Deputy Attorney General for
consideration and resolution.
3. Procedures to be followed in the initial discussion with aliens who
come forward. As with all people who provide useful information to law
enforcement, you should be especially sensitive to maintaining the
confidentiality of alien informants. The Department is encouraging such aliens
to come forward to provide information. The emphasis in any discussions should
be on eliciting
reliable and useful information relating to terrorist activity, not on
determining the informant's immigration status.
* * *
As the President has emphasized, the war against terrorism must be waged by all.
Terrorism threatens global security and safety, and freedom-loving people around
the world must join in the common effort to defeat this modern threat to
humanity. Through concrete action to encourage
non-citizens to participate in the war against terrorism, you will extend
America's promise of freedom to those who help us protect that promise. I thank
you. |
