(b) Interrogation and detention not amounting to arrest. (1) Integration is questioning designed to elicit specific information. An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.

(2) If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.

(3) Information obtained from this questioning may provide the basis for a subsequent arrest, which must be effected only by a designated immigration officer, as listed in §287.5(c). The conduct of arrests is specified in paragraph (c) of this section.

(c) Conduct of arrests-(1) Authority. Only designated immigration officers are authorized to make an arrest. The list of designated immigration officers varies depending on the type of arrest as listed in § 287.5(c)(1) through (c)(5).

(2) General procedures. (i) An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States.

(ii) A warrant of arrest shall be obtained whenever possible prior to the arrest.

(iii) At the time of the arrest, the designated immigration officer shall, as soon as it is practical and safe to do

So:

(A) Identify himself or herself as an immigration officer who is authorized to execute an arrest; and

(B) State that the person is under arrest and the reason for the arrest.

(iv) With respect to an alien arrested and administratively charged with being in the United States in violation of law, the arresting officer shall adhere to the procedures set forth in § 287.3 if the arrest is made without a warrant, and to the procedures set forth in §242.2(c)(2) of this chapter if the arrest is made with a warrant.

(v) With respect to a person arrested and charged with a criminal violation of the laws of the United States, the arresting officer shall advise the person of the appropriated rights as required by law at the time of the arrest, or as soon thereafter as practicable. It is the duty of the immigration officer to assure that the warnings are given in a language the subject understands, and that the subject acknowledges that the warnings are understood. The fact that a person has been advised of his or her rights shall be documented on appropriate Service forms and made a part of the arrest record.

(vi) Every person arrested and charged with a criminal violation of the laws of the United States shall be brought without unnecessary delay before a United States magistrate judge, a United States district judge or, if necessary, a judicial officer empowered in accordance with 18 U.S.C. 3041 to commit persons charged with such crimes. Accordingly, the immigration officer shall contact an Assistant United States Attorney to arrange for an initial appearance.

(vii) The use of threats, coercion, or physical abuse by the designated immigration officer to induce a suspect to waive his or her rights or to make a statement is prohibited.

(d) Transportation—(1) Vehicle transportation. All persons will be transported in a manner that ensures the safety of the persons being transported. When persons arrested or detained are being transported by vehicle, each person will be searched as thoroughly as circumstances permit before being placed in the vehicle. The person being transported shall not be handcuffed to the frame or any part of the moving vehicle or an object in the moving vehicle. The person being transported shall not be left unattended during transport unless the immigration officer needs to perform a law enforcement function.

(2) Airline transportation. The escorting officer(s) must abide by all Federal Aviation Administration and airline carrier rules and regulations pertaining to weapons and the transportation of prisoners.

(e) Vehicular pursuit. (1) A vehicular pursuit is an active attempt by a designated immigration officer, as listed

in paragraph (e)(2) of this section, in a designated pursuit vehicle to apprehend fleeing suspects who are attempting to avoid apprehension. A designated pursuit vehicle is defined as a vehicle equipped with emergency lights and siren, placed in or on the vehicle, that emit audible and visual signals in order to warn others that emergency law enforcement activities are in progress.

(2) The following immigration officers who have successfully completed basic immigration law enforcement training are hereby authorized and designated to initiate a vehicular pursuit: (i) Border patrol agents, including aircraft pilots;

(ii) Supervisory personnel who are responsible for supervising the activities of those officers listed above; and

(iii) Immigration officers who need the authority to initiate a vehicular pursuit in order to effectively accomplish their individual mission and who are designated, individually or as a class, by the Commissioner.

(f) Site inspections. (1) Site inspections are Service enforcement activities undertaken to locate and identify aliens illegally in the United States, or aliens engaged in unauthorized employment, at locations where there is a reasonable suspicion, based on articulable facts, that such aliens are present.

(2) An immigration officer may not enter into the non-public areas of a business, a residence including the curtilage of such residence, or a farm or other outdoor agricultural operation, except as provided in section 287(a)(3) of the Act, for the purpose of questioning the occupants or employees concerning their right to be or remain in the United States unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected. When consent to enter is given, the immigration officer must note on the officer's report that consent was given and, if possible, by whom consent was given. If the immigration officer is denied access to conduct a site inspection, a warrant may be obtained.

(3) Adequate records must be maintained noting the results of every site inspection, including those where no illegal aliens are located.

(4) Nothing in this section prohibits an immigration officer from entering into any area of a business or other activity to which the general public has access or onto open fields that are not farms or other outdoor agricultural operations without a warrant, consent, or any particularized suspicion in order to question any person whom the officer believes to be an alien concerning his or her right to be or remain in the United States.

[59 FR 42418, Aug. 17, 1994]

$287.9 Criminal search warrant and firearms policies.

(a) A search warrant should be obtained prior to conducting a search in a criminal investigation unless a specific exception to the warrant requirement is authorized by statute or recognized by the courts. Such exceptions may include, for example, the consent of the person to be searched, exigent circumstances, searches incident to a lawful arrest, and border searches. The Commissioner shall promulgate guidelines governing officers' conduct relating to search and seizure.

(b) In using a firearm, an officer shall adhere to the standard of conduct set forth in § 287.8(a)(2). An immigration officer may carry only firearms (whether Service issued or personally owned) that have been approved pursuant to guidelines promulgated by the Commissioner. The Commissioner shall promulgate guidelines with respect to: (1) Investigative procedures to be followed after a shooting incident involving an officer;

(2) Loss or theft of an approved fire

expeditiously consistent with the policies and procedures of the Office of Professional Responsibility and the Office of the Inspector General of the Department of Justice and pursuant to guidelines to be established by the Attorney General. Within the Immigration and Naturalization Service, the Office of Internal Audit is responsible for coordinating the reporting and disposition of allegations.

(b) Complaints. Any persons wishing to lodge a complaint pertaining to violations of enforcement standards contained in §287.8 may contact the Department of Justice, P.O. Box 27606, Washington, DC, 20038-7606, or telephone 1-800-869-4499.

(c) Expedited processing of complaints. When an allegation or complaint of violation of § 287.8 is lodged against an employee or officer of the Service, the allegation or complaint shall be referred promptly for investigation in accordance with the policies and procedures of the Department of Justice. At the conclusion of an investigation of an allegation or complaint of violation of § 287.8, the investigative report shall be referred promptly for appropriate action in accordance with the policies and procedures of the Department of Justice.

(d) Unsubstantiated complaints. When an investigative report does not support the allegation, the employee or officer against whom the allegation was made shall be informed in writing that the matter has been closed as soon as practicable. No reference to the allegation shall be filed in the official's or employee's official personnel file.

(e) Jurisdiction of other Department of Justice organizations. Nothing in this section alters or limits, is intended to alter or limit, or shall be construed to alter or limit, the jurisdiction or authority conferred upon the Office of the Inspector General, the Office of Professional Responsibility, the Federal Bureau of Investigation, the United States Attorneys, the Criminal Division or the Civil Rights Division, or any other component of the Department of Justice, or any other order of the Department of Justice establishing policy or procedures for the adminis

tration of standards of conduct within the Department of Justice.

[59 FR 42420, Aug. 17, 1994]

§ 287.11 Pre-enrolled Access Lane.

(a) Pre-enrolled Access Lane (PAL). A PAL is a designated traffic lane located at a Service checkpoint, which, when in operation, may be used exclusively by enrolled participants and their passengers in vehicles authorized by the Service to pass through the checkpoint.

(b) General requirements for Pre-enrolled Access Lane Program. (1) Participation in the Pre-enrolled Access Lane program is wholly voluntary and failure to apply or denial of an application does not prevent any person from passing through the checkpoint in the regular traffic lanes.

(2) Only United States citizens and members of the classes of aliens which the Commissioner of the Service or her delegates determine to be eligible may enroll in the PAL program. To participate in the PAL program, an applicant must have a permanent or temporary residence in the United States, and must agree to furnish all information requested on the application.

(3) The applicant must agree to all terms and conditions required for use of a Pre-enrolled Access Lane. Immigration, criminal justice information, and law enforcement records and databases will be checked to assist in determining the applicant's eligibility. The Service may require applicants to submit fingerprints, and the Service may provide those fingerprints to Federal, State, and local government agencies for the purpose of determining eligibility to participate in the PAL program.

(4) Any vehicle used in a Pre-enrolled Access Lane must have current approval from the Service for use in the PAL program.

(5) Enrolled participants may be issued an identification document showing authorization to participate in the PAL program, and, if such a document is issued, participants must have it in their possession whenever using the PAL. In addition, alien participants must be in possession of a valid form constituting evidence of alien registration pursuant to §264.1(b) of

this chapter at all times while using the PAL.

(6) The Service will install any and all equipment, decals, devices, technology, or methodology it deems necessary on registered vehicles to ensure that only authorized persons and vehicles use the PAL.

(7) All devices, decals, or other equipment, methodology, or technology used to identify persons or vehicles using a Pre-enrolled Access Lane remain the property of the United States Government at all times and must be surrendered upon request of the Service. Enrolled participants must abide by the terms set forth by the Service for use of any device, decal, or other equipment, methodology, or technology. If a vehicle is sold or otherwise disposed of, it is the responsibility of the enrolled participant to remove or obliterate any identifying decal or other authorization for participation in the PAL program before or at the time of sale or disposal unless otherwise notified by the Service. If the Service installs an electronic transmitter or similar device on the vehicle, the enrolled participant must have that device removed by the Service at the PAL enrollment center prior to sale or disposal of an authorized vehicle.

(8) Enrolled participants in the PAL program may carry passengers who are not enrolled in the program in their authorized vehicles in the PAL as long as all passengers are United States citizens, lawful permanent residents of the United States, or rightful holders of valid nonimmigrant United States visas.

(c) Application. (1) Application for Pre-enrolled Access Lane participation shall be made on Form I-866, Application-Checkpoint Pre-enrolled Access Lane.

(2) Each person wishing to enroll in the Pre-enrolled Access Lane program must submit a separate application.

(3) Applications must be supported by documents establishing identity, United States citizenship or lawful immigration status in the United States, a valid driver's license, and vehicle registration for all vehicles being registered. The Service may require additional documentation where appropriate to substantiate information pro

vided on the application, as well as written permission from the vehicle owner to use any vehicle not owned by the applicant in the PAL.

(4) Each person filing an application may be required to present himself or herself for an interview at a time and place designated by the Service prior to approval of the application.

(5) The Service may inspect any vehicle that a PAL applicant desires to register for use in the PAL to ensure that it does not present evidence of having been used or prepared to be used to smuggle aliens or controlled substances, and the Service must approve all vehicles prior to use in the PAL. The Service may prohibit the use of certain types of vehicles in the PAL for reasons of safety and law enforcement.

(6) An application may be denied by the Chief Patrol Agent having jurisdiction over the PAL enrollment center where the application is filed. Written notice of the decision on the application shall be given to the applicant or mailed by ordinary mail to the applicant's last known address. There is no appeal from a denial, but denial is without prejudice to reapplying for this program. Re-applications following denial or revocation of the privilege to participate in the PAL program will not be considered by the Service until 90 days after the date of denial or revocation.

(7) Registration in the PAL program is limited to individuals who the Service has determined present a low risk of using the PAL for unlawful purposes. Criteria that will be considered in the decision to approve or deny the application include the following: lawful presence in the United States, criminal history and/or evidence of criminality, employment, residency, prior immigration history, possession of a valid driver's license, vehicle type. registration, and inspection.

(8) Applications approved by the Service will entitle the authorized person and the authorized vehicle to use the PAL for 2 years from the date of approval of the application or until authorization is revoked, whichever occurs first.

(d) Acknowledgments and agreements. By signing and submitting the Form I866 each applicant acknowledges and

agrees to all of the conditions for participation in the PAL program and the statements on the Form I-866.

(e) Violation of conditions of a Pre-enrolled Access Lane and Revocation. An enrolled participant who violates any condition of the PAL program, or any applicable law or regulation, or who is otherwise determined by an immigration officer to be ineligible to participate in the PAL program, may have his or her authorization and the authorization of his or her vehicle(s) revoked by the Chief Patrol Agent with jurisdiction over the PAL enrollment center where the application is filed and may be subject to other applicable sanctions, such as criminal and/or civil penalties, removal, and/or possible seizure of goods and/or vehicles. If an authorized vehicle is sold, stolen, or otherwise disposed of, authorization to use that vehicle in the PAL is automatically revoked. Within 24 hours of when an authorized vehicle is stolen, or within 7 days of when such vehicle is sold, or otherwise disposed of or the license plates are changed, enrolled participants must give, in person or by facsimile transmission, written notice of such occurrence to the PAL enrollment center at which their application was filed. Failure to do so will result in the automatic revocation of the authorization to use the PAL of the person who registered such vehicle in the PAL program. Unless revocation is automatic, the Service will give notice of revocation to the enrolled PAL participant or mail it by ordinary mail to his or her last known address. However, written notification is not necessary prior to revocation of the privilege to participate in the PAL program. There is no appeal from the revocation of an authorization to participate in the PAL program.

(f) No benefits or rights conferred. This section does not, is not intended to, shall not be construed to, and may not be relied upon to confer any immigration benefit or status to any alien or create any rights, substantive or procedural, enforceable in law or equity by any party in any matter.

[62 FR 19025, Apr. 18, 1997]

§ 287.12 Scope.

With regard to this part, these regulations provide internal guidance on specific areas of law enforcement authority. These regulations do not, are not intended to, and shall not be construed to exclude, supplant, or limit otherwise lawful activities of the Immigration and Naturalization Service or the Attorney General. These regulations do not, are not intended to, shall not be construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal. The Attorney General shall have exclusive authority to enforce these regulations through such administrative and other means as he or she may deem appropriate.

[59 FR 42420, Aug. 17, 1994. Redesignated at 62 FR 19025, Apr. 18, 1997]

The term American Indian born in Canada as used in section 289 of the Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. It does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood.

[29 FR 11494, Aug. 11, 1964]

§ 289.2 Lawful admission for permanent residence.

Any American Indian born in Canada who at the time of entry was entitled to the exemption provided for such person by the Act of April 2, 1928 (45 Stat. 401), or section 289 of the Act, and has maintained residence in the United