9-73.010 - Immigration Violations—Supervisory Responsibility

The Human Rights and Special Prosecutions Section, (202) 616-2942, is available to provide guidance and assistance on issues related to alien smuggling, criminal immigration violations, and related offenses. The "S-Visa" classification program, which may be available for certain cooperating illegal aliens and immediate family members, is supervised by the Office of Enforcement Operations, (202) 514-6809. In addition, the Civil Division's Office of Immigration Litigation, (202) 616-4900, may be able to provide assistance on other immigration related issues.

[updated April 2018]

9-73.020 - Immigration Violations—Guidelines for Undercover Operations

The Attorney General's Guidelines on INS Undercover Operations have been in effect since March 19, 1984. The Guidelines recognize that the use of undercover operations is a lawful and essential technique for the detection and investigation of alien-smuggling conspiracies, fraudulent document offenses, and other violations of federal law within jurisdiction of INS. All undercover proposals require that the position of the United States Attorney's office be obtained before the proposal can be approved. With regard to undercover proposals involving specified sensitive circumstances set forth in the guidelines, such proposals are reviewed by the INS Undercover Operations Review Committee, which consists of representatives of INS and the Criminal Division. Before passing on any such proposal, the Committee requires a letter signed by the USA or a supervisory AUSA, expressly stating that the USA has personally reviewed the proposed operation, including the sensitive circumstances reasonably expected to occur; concurs with the proposal, its objectives and legality; and agrees to prosecute any meritorious case that is developed.

A copy of the Attorney General's Guidelines on INS Undercover Operations is in the Criminal Resource Manual at 1901.

9-73.100 - Immigration Violations—8 U.S.C. § 1324

9-73.200 - Immigration Violations—8 U.S.C. § 1325-28, 8 U.S.C. § 1253, and 18 U.S.C. § 758

[cited in Criminal Resource Manual 1455]

9-73.300 - Immigration Violations—Immigration Officer Authority

For a discussion of an Immigration Officer's authority to conduct arrests, searches, and seizures, see theCriminal Resource Manual at 1917. Information on arrests of illegal aliens by state and local officers can be found in the Criminal Resource Manual at 1918.

9-73.400 - Immigration Violations—Reporting of Decisions

In all cases in which the decision arising under the immigration and naturalization laws is adverse to the government, except criminal cases in which no appeal is allowed by law, copies of the pleadings and other documents, should be promptly submitted along with an appeals recommendation See JM 9-2.170 (appeals).

[updated June 2018]

9-73.500 - Immigration Violations—Deportation

Outdated—pending revision.

On April 28, 1995, the Attorney General issued a memorandum to all federal prosecutors entitledDeportation of Criminal Aliens. See the Criminal Resource Manual at 1919. A copy of this Memorandum is reproduced in the Criminal Resource Manual at 1920 through 1941:

[cited in JM 9-73.520]

9-73.510 - Immigration Violations—Promise of Non-Removal

In a criminal case, the United States Attorney should not, as part of a plea agreement or an agreement to testify, or for any other reason, promise an alien that he/she will not be removed, without prior authorization from the Department of Homeland Security and the Assistant Attorney General of the Criminal Division. See JM 9-15.800 and JM 9-16.020.

[updated June 2018] [cited in JM 9-16.020]

9-73.520 - Immigration Violations—Deportation of Criminal Aliens

All deportable criminal aliens should be deported unless extraordinary circumstances exist. Accordingly, absent such circumstances, Federal prosecutors should seek the deportation of deportable alien defendants in whatever manner is deemed most appropriate in a particular case. Exceptions to this policy must have the written approval of the USA or a designated supervisory AUSA. In cases handled exclusively by one of the Department's litigating divisions, an exception to the policy must have the written approval of the appropriate Assistant Attorney General or Deputy Assistant Attorney General. The means of effecting the deportation of criminal alien defendants include: (1) using stipulated administrative deportation orders in connection with plea agreements; (2) providing for deportation as a condition of supervised release under 18 U.S.C. § 3583(d); and (3) seeking judicial deportation orders pursuant to the judicial deportation statute, formerly 8 U.S.C. § 1252a(d), recodified by Section 374 of the Illegal Immigration Reform and Immigrant Responsibility Act at 8 U.S.C. § 1228(c). See JM 9-73.500 and the Attorney General's April 28, 1995 Memorandum to All Federal Prosecutors, captioned Deportation of Criminal Aliens.

It should be noted that in the above mentioned memorandum, the Attorney General instructed federal prosecutors that to obtain stipulations to deportation they may agree to recommend a one or two level downward departure from the applicable sentencing range in return for the alien's concession of deportability and agreement to accept a final order of deportation. Such downward departure is justified on the basis that it is conduct not contemplated by the guidelines.

9-73.600 - Passport/Visa Violations—18 U.S.C. § § 1541 to 1546

9-73.700 - Marriage Fraud—8 U.S.C. § 1325(c) and 18 U.S.C. § 1546

For a discussion of marriage fraud, see the Criminal Resource Manual at 1948.

9-73.800 - Nationality and Citizenship Offenses

For a discussion of nationality and citizenship offenses, see the Criminal Resource Manual at 1949.

9-73.801 - Revocation of Naturalization

No suit to revoke naturalization under 8 U.S.C. § 1451 shall be instituted by a United States Attorney without prior consultation with the Office of Immigration Litigation in the Civil Division. Attorney General's Order No. 851-79 (9/4/79) conferred upon the Criminal Division's Office of Special Investigations (OSI, now known as the Human Rights and Special Prosecutions Section, HRSP) the authority to prepare, initiate and conduct denaturalization proceedings in all federal districts against individuals who, prior to and during World War II, participated in persecution in association with the Nazi government or its allies. As a result of the 2010 merger of OSI and the Criminal Division’s Domestic Security Section to form HRSP, HRSP possesses all denaturalization authority previously conferred on OSI. HRSP may institute denaturalization cases against Nazi persecutors or against other participants in violations of human rights or humanitarian law without consulting the Office of Immigration Litigation.

[updated April 2018]