(A)  Requirements.   In 1994, Congress created a nonimmigrant “S” Visa for informants and witnesses in criminal and terrorist investigations and prosecutions.[339]  This legislation grants an “S-5” nonimmigrant visa[340] to a person who:

 

(1)        possesses critical reliable information concerning a criminal organization or enterprise,

(2)        is willing to or has supplied it to federal or state law enforcement officials or the court, and

(3)        as to whom the Attorney General determines his or her presence is essential to the success of an authorized criminal investigation or prosecution.

 

A noncitizen witness in counter-terrorism matters may receive protection if the noncitizen “is in danger or has been placed in danger as a result of providing such information . . . .”[341]  A maximum of 100 visas is authorized per year.  The same general requirements authorize the government to grant up to 25 “S-6” visas per year to informants and witnesses for investigations into terrorist organizations.  These visas can be granted to spouses, married and unmarried sons and daughters, and parents accompanying or following to join the immigrant who receives the “S-5” or “S-6” visa.  

 

These immigrants may be authorized to adjust status to lawful permanent residence after satisfaction of certain conditions.  The law enforcement agency, rather than the immigrant, must apply for the visa.[342]  A form I-854 application may be filed by a federal or state law enforcement authority, which includes a federal or state court or a U.S. Attorney’s Office.

 

[339] INA § 101(a)(13)(S), 8 U.S.C. § 1101(a)(13)(S), created in 1994 by Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.

[340] The original legislation designated these two visas “S-1” and “S-2,” respectively, but the previous use of these designations required that these visas be redesignated “S-5” and “S-6,” respectively.  See INS Commentary to implementing regulations, 60 Fed. Reg. 44,260 (Aug. 25, 1995); 8 C.F.R. § 214.1(a)(2), as amended, 60 Fed. Reg. 44,266 (Aug. 25, 1995).

[341] 8 C.F.R. § 212.2(s)(2).

[342] Khan v. INS, 88 Fed.Appx. 889 (6th Cir. Feb. 24, 2004) (case remanded to immigration court to allow noncitizen to submit evidence that Office of Inspector General promised him “S” visa to induce cooperation in investigation of corrupt immigration officials; noncitizen should be allowed, subject to evidentiary rules, to submit evidence of promises or representations made by OIG officials).

RELIEF - DEFERRED ACTION - INFORMANTS
While not as good as an S-Visa, ICE is granting "deferred action" to cooperators which allows a non-resident to stay in the country for a year, and can be extended to a second year. Employment authorization can also be issued. Here is how the process was explained to a public defenders office by an ICE official:

Questions for planning purposes.

1. Once the witnesses are sentenced to time served in their criminal case, they will come into ICE Custody per the immigration detainers. ICE cannot lift the immigration detainers now because the noncitizens need to be administratively processed to include fingerprinting in both the NCIC Database as well as the Immigration Ident Database to make sure they are eligible for Deferred Action or an Order of Supervision.

Q 1. About how long does the administrative processing take and physically where will the witnesses be ?

I am assuming the Sentencing Hearings will take place at the United States District Court located in XX. Either myself or another ICE Agent plan on attending the sentencing hearings. If the aliens are sentenced to time served, the aliens will come into ICE Custody per the immigration detainers. ICE holds our detainees at the XX County Jail located in XX so the aliens would be detained there. Most likely, ICE would administratively process the aliens the following business day after the Sentencing Hearings. If the aliens appear eligible for Deferred Action or an Order of Supervision, they would most likely be released the same day that they were processed or may be the following day.

2. Once the determination is made that the alien witnesses are eligible for Deferred Action or an Order of Supervision, then I will complete the appropriate paperwork requesting same. Once the Deferred Action or Order of Supervision is approved, it will be documented on an immigration document and the aliens will be eligible for employment authorization. Q 2. About how long does this second step take and again where will the witnesses be ?

If the aliens appear eligible for Deferred Action or an Order of Supervision, they will be released from custody on either an Order of Release on Recognizance or an Order of Supervision. The Deferred Action / Order of Supervision paperwork will take a couple of days to complete. The Deferred Action paperwork goes to the ICE SAC Office located in YY for review / approval. This usually takes a couple of weeks. The Order of Supervision paperwork will be reviewed by the ICE Supervisory Deportation Officer for review / approval and a decision would be made within a few days. If the Deferred Action / Order of Supervision are approved, the aliens will receive a written notice stating the same and they will be eligible for employment authorization. The aliens will have to complete an Application for Employment Authorization Form (I-765) which is then adjudicated by the United States Citizenship and Immigration Service (CIS) Office for approval / issuance. This process takes approximately 60 - 90 days.

Q 3. For planning purposes, about how long after sentencing should I and the witness expect it will take before they are out of custodial status ? Is this later the same day as sentencing, the next day, a week ? Assuming they are sentenced by the court to "time served", the Marshal will return them to the jail they have been at (here XYZ County Jail). Would they remain at XYZ county jail pending the above explained process ? They will each need to line up transportation home, which is part of what I am trying to plan for. Naturally they also will not want to be in custody any longer than necessary.

The United States Attorneys Office and ICE are currently working with the United States Marshals Service to have the alien witnesses / cooperators transferred from XYZ County to the XX County Jail located near the sentencing court, before their Sentencing Hearings to simplify the process.

Q 4. A different defendant want to voluntarily return to [Country of citizenship] ASAP. He can line up a plane ticket through friends or family. He has no immigration attorney. Is there a way we can process him so that once sentenced he can leave on his own ? I fear that if he is under an immigration detainer it could be a measurable amount of time before he can leave. Your thoughts on this are appreciated.

A non-cooperator will still come into ICE Custody per the immigration detainers and will be processed for administrative removal proceedings. The alien has the right to ask an immigration judge for Voluntary Departure but this ICE Office will not approve Voluntary Departure. My recommendation for the non-cooperator is to make sure they have a valid passport or other suitable travel document in order to help expedite their removal.

Thanks to:David Beneman , Federal Public Defender

Ninth Circuit

RELIEF - S-VISA - ESTOPPEL - FEDERAL PROSECUTOR'S PROMISE NOT TO DEPORT IN EXCHANGE FOR COOPERATION DOES NOT PREVENT REMOVAL ABSENT A CLAIM THAT S/HE HAD AUTHORITY TO MAKE THAT PROMISE
Morgan v. Gonzales, __ F.3d __, 2007 WL 2127707 (9th Cir. Jul. 26, 2007) (United States is not estopped from removing an aggravated felon based on governments alleged agreement not to deport him in exchange for his cooperation in a federal drug prosecution where there was no claim that an official having the authority to do so made a specific promise of such relief).

Other

FEDERAL PROSECUTION IMMIGRATION PROMISES UNLAWFUL WITHOUT DHS APPROVAL
Assistant United States Attorneys lack the authority to bind immigration authorities unless they obtain written assent from the immigration authorities and otherwise comply with 28 C.F.R. 0.197.

RELIEF - "S" VISA - PROSECUTOR ALONE CANNOT GRANT "S" VISA
The U.S. Attorney's office alone does not have the power to agree that the cooperator will not be deported. See 28 C.F.R. 0.197 ("The Immigration and Naturalization Service shall not be bound, in the exercise of its authority under the immigration laws, through plea agreements, cooperation agreements, or other agreements with or for the benefit of alien defendants, witnesses, or informants, or other aliens cooperating with the United States Government, except by the authorization of the Commissioner of the Service or the Commissioners delegate. Both the agreement itself and the necessary authorization must be in writing to be effective, and the authorization shall be attached to the agreement."). Prior case law held that an Assistant U.S. Attorney could bind the INS. See, e.g., Margalli-Olvera v. INS, 43 F.3d 345, 353-54 (8th Cir. 1994); Thomas v. INS, 35 F.3d 1332, 1337-43 (9th Cir. 1994). After the regulation was promulgated, however, this is no longer true. A state law enforcement agency must file a Form I-854, endorsed by highest state law enforcement officer and the U.S. Attorney in the jurisdiction, with the approval of the Assistant Attorney General, Criminal Division, USDOJ, Washington, D.C., who certifies the application and forwards it to ICE if the witness is in the United States, or to the Secretary of State if the witness is outside of the country. Counsel may notify the local DRO that an S visa is being requested, and perhaps they will stop removal. See 8 C.F.R. 214.2(t)(4).
Thanks to Tova Indritz.

RELIEF - DEFERRED ACTION - INFORMANTS
While not as good as an S-Visa, ICE is granting "deferred action" to cooperators which allows a non-resident to stay in the country for a year, and can be extended to a second year. Employment authorization can also be issued. Here is how the process was explained to a public defenders office by an ICE official:

Questions for planning purposes.

1. Once the witnesses are sentenced to time served in their criminal case, they will come into ICE Custody per the immigration detainers. ICE cannot lift the immigration detainers now because the noncitizens need to be administratively processed to include fingerprinting in both the NCIC Database as well as the Immigration Ident Database to make sure they are eligible for Deferred Action or an Order of Supervision.

Q 1. About how long does the administrative processing take and physically where will the witnesses be ?

I am assuming the Sentencing Hearings will take place at the United States District Court located in XX. Either myself or another ICE Agent plan on attending the sentencing hearings. If the aliens are sentenced to time served, the aliens will come into ICE Custody per the immigration detainers. ICE holds our detainees at the XX County Jail located in XX so the aliens would be detained there. Most likely, ICE would administratively process the aliens the following business day after the Sentencing Hearings. If the aliens appear eligible for Deferred Action or an Order of Supervision, they would most likely be released the same day that they were processed or may be the following day.

2. Once the determination is made that the alien witnesses are eligible for Deferred Action or an Order of Supervision, then I will complete the appropriate paperwork requesting same. Once the Deferred Action or Order of Supervision is approved, it will be documented on an immigration document and the aliens will be eligible for employment authorization. Q 2. About how long does this second step take and again where will the witnesses be ?

If the aliens appear eligible for Deferred Action or an Order of Supervision, they will be released from custody on either an Order of Release on Recognizance or an Order of Supervision. The Deferred Action / Order of Supervision paperwork will take a couple of days to complete. The Deferred Action paperwork goes to the ICE SAC Office located in YY for review / approval. This usually takes a couple of weeks. The Order of Supervision paperwork will be reviewed by the ICE Supervisory Deportation Officer for review / approval and a decision would be made within a few days. If the Deferred Action / Order of Supervision are approved, the aliens will receive a written notice stating the same and they will be eligible for employment authorization. The aliens will have to complete an Application for Employment Authorization Form (I-765) which is then adjudicated by the United States Citizenship and Immigration Service (CIS) Office for approval / issuance. This process takes approximately 60 - 90 days.

Q 3. For planning purposes, about how long after sentencing should I and the witness expect it will take before they are out of custodial status ? Is this later the same day as sentencing, the next day, a week ? Assuming they are sentenced by the court to "time served", the Marshal will return them to the jail they have been at (here XYZ County Jail). Would they remain at XYZ county jail pending the above explained process ? They will each need to line up transportation home, which is part of what I am trying to plan for. Naturally they also will not want to be in custody any longer than necessary.

The United States Attorneys Office and ICE are currently working with the United States Marshals Service to have the alien witnesses / cooperators transferred from XYZ County to the XX County Jail located near the sentencing court, before their Sentencing Hearings to simplify the process.

Q 4. A different defendant want to voluntarily return to [Country of citizenship] ASAP. He can line up a plane ticket through friends or family. He has no immigration attorney. Is there a way we can process him so that once sentenced he can leave on his own ? I fear that if he is under an immigration detainer it could be a measurable amount of time before he can leave. Your thoughts on this are appreciated.

A non-cooperator will still come into ICE Custody per the immigration detainers and will be processed for administrative removal proceedings. The alien has the right to ask an immigration judge for Voluntary Departure but this ICE Office will not approve Voluntary Departure. My recommendation for the non-cooperator is to make sure they have a valid passport or other suitable travel document in order to help expedite their removal.

Thanks to:David Beneman , Federal Public Defender