State Criminal Alien Assistance Program

DEPARTMENT OF JUSTICE

Office of Justice Programs

[OJP(BJA)-1116]

RIN 1121-ZA62

State Criminal Alien Assistance Program

AGENCY: Office of Justice Programs, Bureau of Justice Assistance (BJA),

Justice.

ACTION: Notice of proposed guidelines.

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SUMMARY: This notice is to request comment on the proposed guideline on

the application process for States and political subdivisions to obtain

reimbursement for the incarceration of undocumented criminal aliens

under the State Criminal Alien Assistance Program.

DATES: Comments on this proposed guideline must be received on or

before April 22, 1997.

Final guidelines and application information will be published and

issued within 30 days of the end of this comment period and applicants

will be given at least 30 working days to make that application.

ADDRESSES: Comments may be mailed to: Office of Justice Programs,

Office of the General Counsel, 633 Indiana Avenue, NW, Room 1245,

Washington, DC 20531.

FOR FURTHER INFORMATION CONTACT: Linda James McKay, SCAAP Coordinator,

State and Local Assistance Division, Bureau of Justice Assistance, or

the Department of Justice Response Center, 1-800-421-6770 or 202-307-

1480.

SUPPLEMENTARY INFORMATION: The following supplementary information is

provided: The State Criminal Alien Assistance Program (SCAAP) provides

reimbursement for certain criminal aliens who are incarcerated in State

and local correctional facilities. The program is administered by the

Bureau of Justice Assistance (BJA), which is part of the Office of

Justice Programs (OJP) in the Department of Justice. The program is

authorized and governed by the provisions of the Immigration and

Nationality Act of 1990, as amended, 8 U.S.C. 1251(i), originally

enacted as part of the Violent Crime Control and Law Enforcement Act of

1994 (Pub. L. 103-322) at section 20301.

This section provides the authority, at the option of the Attorney

General whenever an appropriation is made, to either reimburse States

and localities for costs incurred in incarcerating qualifying criminal

aliens or take such aliens into Federal custody. For Fiscal Year 1997

(FY 1997), the Attorney General has delegated the authority to

implement the program to BJA. BJA is a criminal justice grant making

and administrative agency within the Department of Justice and, thus,

has no ability to take custody. Therefore, SCAAP will continue to be

administered only as a reimbursement program. For FY 1997,

$500,000,000, less administrative costs, is available for reimbursement

payments under SCAAP.

For FY 1997, records related to all foreign-born inmates with one

felony or two misdemeanor convictions who are or have been incarcerated

within a State

[[Page 12849]]

or local correctional facility during a specified one-year period

should be included in an applicant's claim for an award. All State or

local jurisdictions which have facilities housing such aliens for

periods over 72 hours will be eligible. Applicants must provide inmate-

specific information for comparison with records maintained by the

Immigration and Naturalization Service (INS). Award amounts will depend

on the number of reimbursable aliens verified by INS, on the lengths of

stay of those aliens in the applicant's facilities, and on the

applicant's costs of incarceration. Last year, reimbursement was

approximately 60 percent of the amount claimed by applicants for

verified, reimbursable aliens.

FY 1997 will be the third fiscal year in which funding for SCAAP

has occurred. In each of these years, there have been changes to the

authorization for SCAAP and modifications in data gathering and formal

application procedures. Because of these changes, BJA is issuing its

proposed model for distributing FY 1997 SCAAP funds to allow and

encourage comment by potential applicants and other interested parties.

Comment is particularly requested about the methodology to be used

to count inmates who fit within the criteria for reimbursement and the

types of data elements about those inmates that must be provided for

INS verification. The ability of eligible applicants to access

necessary criminal history information and the completeness and

accuracy of that information is also a critical area that should also

be addressed, as it will be relevant to the provision of requested data

(see subsection 2 below). Comment on any other aspect of this proposed

distribution model is also welcome.

BJA is attempting to increase the body of information available

about all incarcerated criminal aliens, to ensure that the data

underlying its awards are complete and accurate, without establishing

requirements for data submission that are overly burdensome for

applicants. For these reasons, the model proposed expands the types of

data required while streamlining the methodology for obtaining that

data.

1. Eligible Applicants

Eligible applicants are States and political subdivisions of States

(hereafter, ``localities'' or ``subdivisions'') that exercise authority

with respect to the incarceration of an undocumented criminal alien in

a facility that provides secure, overnight custody of inmates for

periods extending beyond 72 hours. Only one application may be

submitted by each locality; therefore, cost and inmate information from

all facilities within a single subdivision must be consolidated into a

single application.

The applicant may be either the chief executive officer (CEO)

(e.g., governor, county executive, mayor) of the political subdivision

itself or the head (e.g., director, commissioner, sheriff, etc.) of the

correctional facility in that jurisdiction, pursuant to a delegation

from the CEO. Such delegation must be in writing and be submitted to

BJA by the CEO or correctional agency head applying on behalf of the

jurisdiction. A copy of a valid delegation previously obtained and

submitted to BJA for the purpose of SCAAP will be acceptable.

Awards will be made to the place of business of the signatory on

the application, regardless of designation. That is, if the county

board chair (or county manager, county auditor, etc.) will be signing

the application, the formal applicant would be the county, at the

address of the county office. If the county sheriff will be signing the

application pursuant to delegation from the county board, the formal

applicant would be the sheriff, and the award will go directly to the

address of the sheriff (or county correctional facility).

For the purposes of the remainder of this guidance, ``applicant''

refers to the head of the correctional facility housing the alien

inmates, as this facility is the source of both inmate and cost data

required for the application.

2. Reimbursable Inmates and Length of Stay Calculation

Applicants will be expected to submit records on all inmates in

their custody who have a foreign country of birth and who have been

convicted of a felony or two misdemeanors. Applicants should not screen

out aliens known or believed to be nonreimbursable. The methodology for

determining reimbursability of unmatched inmates (as discussed in

subsection 4 below) will not depend on the ratio of reimbursable to

nonreimbursable inmates, as was the case in prior years. This change

means that applicants will not be required to make any judgments about

the potential reimbursability of their incarcerated aliens.

Not all foreign born inmates whose records are submitted will be

determined to be reimbursable aliens under the law. To be reimbursable,

an inmate must:

Have a foreign country of birth. The record submitted must

contain the name of that foreign country. See the discussion under

subparagraph 4 below for proposed rules for submitting and verifying

suspected foreign-born inmates who do not self-report a foreign country

of birth.

Have been in the applicant's custody at some point between

July 1, 1996, and June 30, 1997. Only the number of days in custody

during this time period may be counted toward the length of stay for

that inmate. Thus, a cap of 365 days will be imposed on the number of

days which an applicant may claim for a single inmate.

Have been in the applicant's custody for a period

exceeding 72 hours. Police ``lockups'' and similar holding facilities

are excluded, and the applicant would not be expected to submit records

for persons held pending arraignment on new charges who are then

released and not again incarcerated. However, once the facility has

exercised custody over an inmate beyond 72 hours, all time in custody

may be included in the length of stay reported for an otherwise

qualified inmate, as defined in this section.

Have one felony conviction or two misdemeanor convictions.

Qualifying conviction(s) can occur prior to entry into the applicant's

custody or be the result of charges that led to that incarceration. In

the case of aliens who entered with previous qualifying convictions,

all time in custody during the specified one-year period may be

counted, regardless of the disposition of the charges which led to the

current incarceration. In the case of aliens who did not have the

qualifying conviction(s) before entering into applicant's custody, only

the time spent during the one-year period in applicant's custody after

the qualifying conviction occurs may be counted, unless the inmate is

also sentenced during the specified year period to some sentence (e.g.,

``time served'') which converts the pretrial custody period into part

of the final disposition for purposes of fulfilling the sentence. In

this situation, all time in custody can be counted.

Please note that, in either case, the applicant must be able to

determine and document that the qualifying convictions have taken

place. Thus, particularly for those inmates for whom the qualifying

conviction(s) occurred prior to entry into applicant's custody, the

applicant must have ready access to accurate and complete criminal

history information.

For the purposes of this determination, the applicant should follow

its own State law as to what constitutes a felony or misdemeanor and

what actions constitute a valid conviction. If a State has no set

definition of ``felony,'' a felony should be considered any offense for

which the

[[Page 12850]]

potential sentence that could be imposed upon conviction is more than

one year.

Fall within one of three categories specified in the

statute:

Entered the United States without inspection or at any

time or place other than as designated by the Attorney General;

Was the subject of exclusion or deportation proceedings at

the time he or she was taken into custody by the State or a political

subdivision of the State; or,

Was admitted as a nonimmigrant and at the time he or she

was taken into custody by the State, or a political subdivision of the

State has failed to maintain the nonimmigrant status in which the alien

was admitted (or to which it was changed) or to comply with the

conditions of any such status.

In determining who is the ``subject of'' proceedings under the

second category, an alien would be considered eligible to be counted

for reimbursement if the charging document had been issued by INS prior

to that alien's entry into the applicant's custody. The charging

document need not be served against the alien nor filed with the

immigration court. Alien inmates with final orders of deportation or

exclusion will also be considered the ``subject of'' proceedings.

Cubans who entered the United States as part of the 1980 Marielito

boatlift (''Mariel Cubans'') are not separately eligible and will not

automatically be included for reimbursement; rather, Cuban inmates, as

all other inmates, will be reimbursable only to the extent they fall

under one of the categories listed above.

3. Specification for Inmate Records

The applicant will have two options for providing information about

inmates: (1) Applicants may use their own data system to produce a

properly formatted data file, or (2) applicants may reenter data into a

database shell on a diskette to be provided by BJA. For applicants

choosing the first option, all inmate data submitted must be in ASCII

format, in fixed length fields. Further, unless a specific exception is

noted below, all data fields must be completed. Failure to provide the

requested data in the proper format will result in exclusion of the

record from the verification process. Exact information on the order

and length of data fields will be provided in the final instructions.

The following data will be requested:

Alien (``A'') number. An ``A'' number is an 7-, 8-, or 9-

digit number which may or may not have been assigned to an inmate by

INS and be known to the applicant. If no A number is available, the

applicant may leave this field blank.

First, middle, and last names of the inmate, including all

aliases. A separate record will be required for each alias.

Unique identifying number for each inmate. This number

will allow INS to check separate alias records, but avoid duplicate

counting of the same inmate. The number will be assigned to that inmate

by the applicant and will generally be used by the applicant for other

identification purposes.

Date of birth. If more than one date of birth is provided,

a separate record should be used for each date, as in the case of

different names.

Foreign country of birth. Applicants should supply the

actual name of the foreign country (at least the first 10 letters of

the name will be required) or use a coding system. If a coding system

is used, applicants must submit documentation of the codes as part of

their applications.

Date upon which the alien entered into the applicant's

custody. This date will be a required field for all inmates, not just

those potentially qualifying under the ``subject of proceedings''

category.

Type and level of crime of the qualifying conviction(s).

Applicants will be expected to code the qualifying felony or

misdemeanor convictions utilizing the Federal Bureau of Investigation's

(FBI's) National Criminal Information Center (NCIC) coding scheme. Both

of the qualifying misdemeanors will need to be coded. More specific

directions for accessing and utilizing these codes will appear in the

final guidance for application. These instructions will also address

the issue of which among possible qualifying convictions should be

coded.

Because this will be the first year in which the qualifying

offenses will need to be submitted, and because of the specificity and

reliability that would result from use of NCIC codes for all offenses,

BJA particularly solicits comment by potential applicants on their

ability to provide this data in the form requested.

Actual length of stay in the applicant's custody between

July 1, 1996 and June 30, 1997 that is ``qualifying'' under the

criteria set forth in subsection 2 above. Applicants will be expected

to specify the exact number of days of incarceration for each inmate.

Unlike last year, no predetermined, standard lengths of stay will be

allowed. Both State and local facilities will be expected to comply

with this requirement.

Earliest possible release date for the inmate, if that

inmate is currently serving a sentence in applicant's custody. This

field may be left blank if the inmate is in pretrial status (but has

the qualifying prior felony or two misdemeanor convictions) or has been

convicted but not yet sentenced for the charge(s) which brought the

inmate into applicant's custody, or if the determination will be made

by a State facility after transfer of a sentenced inmate from a local

to a State facility.

FBI number. This information will not be a required but is

data that will increase the probability of a positive match between

applicant and existing INS records.

In addition, each applicant will be preassigned a jurisdictional

identification number that must appear on the diskette label and as

part of every record submitted. This number must also appear on the

formal application document. Other data that might be useful in making

positive identifications of inmates may be requested, but will not be

required.

Applicants that cannot provide data on lengths of stay for all

inmates incarcerated during the one-year period will be allowed to do a

one-day count at any point during the application period. However, they

may only claim the lengths of stay for the inmates who were

incarcerated on the day of that count. This option should only be used

if it is impossible to provide full-year data, because it is very

likely to result in a lower level of reimbursement than would use of

the preferred method.

4. Verification of Inmate Data

INS will verify applicants' inmate records by matching those

records to records in INS databases. The matching process will result

in three groups of inmates: Positively identified reimbursable inmates,

positively identified nonreimbursable inmates, and inmates not matched.

A reimbursement rate will be applied to inmates whose eligibility

cannot be determined through a positive match. Unlike in prior years,

this rate will not be based on the ratio of matched reimbursable to

nonreimbursable inmates whose records are submitted by the applicant,

but rather will be based on a separate process. The INS is currently

working to gather data that will produce an estimate of the proportion

of unmatched inmates who are likely to be eligible for reimbursement.

The estimate will likely be based on the information about the

immigration status of criminal aliens interviewed during the last year

who previously did not have files in INS

[[Page 12851]]

databases. Depending on the results of this study, a single, nationwide

rate will probably be developed, although it is possible that regional

or state-specific rates will be necessary. This new procedure is

expected to allow more uniformity among applicant submissions while

being equitable to all applicants.

Applicants who have a reasonable basis to believe that an inmate

has falsely claimed to have been born in the United States or its

territories and possessions (e.g., Guam, Northern Mariana Islands, the

Virgin Islands, Puerto Rico) may include those inmates in their data

submissions. Similarly, applicants may include in their submissions

inmates for whom they have no known country of birth. If INS is able to

match these inmate records, they will be retained as part of the

applicants' submissions. However, if INS is unable to match the inmates

with no foreign country of birth provided, those inmate records will be

deleted from the applicants' submissions. Aliens whose records are

deleted from a submission will not be included in the pool of unmatched

inmates to which the special reimbursement rate is applied.

5. Cost of Inmate Custody

Only routine operating expenditures will be allowed as part of the

calculation of annual inmate costs; capital expenditures and nonroutine

costs will not be allowed. Cost calculations should be based on

routinely maintained cost figures for all qualifying facilities

administered by the political subdivision making application, not on

costs directly associated with alien inmates claimed. The costs should

be calculated based on the average number of bed spaces filled in all

facilities under the applicant's control over the course of the year,

not on an average of the costs of running each separate component

facility.

In making calculations, all payments, including Federal payments,

to the applicant from other jurisdictions to cover costs of housing

inmates for those other jurisdictions must be deducted from the overall

prisoners' upkeep costs. Payments made by the jurisdiction to other

jurisdictions to house their inmates can be added to the cost figures.

Similarly, services provided within facilities but not charged to the

budget of the correctional agency (e.g., vocational training funded

through the State's department of education) should not be included.

Nor should applicants use inmate cost rates negotiated with Federal or

State or other jurisdictions as their basis of claim. Rather,

calculations should be based on their own actual costs of inmate

custody for the current or the immediately prior fiscal year.

BJA will review and compare inmate cost figures submitted. If

requested to do so by BJA, the Department of Justice, or any other

authorized auditor, applicants must be able to provide the detailed

information that went into their claimed costs calculation.

6. Formal Application and Deadline for Application

Application kits with final instructions will be mailed directly to

correctional facilities (unless BJA has been notified by an eligible

jurisdiction to provide the kit to another office) and will consist of

a formal application form, required Federal assurances and

certifications, and a diskette for provision of inmate data (at the

applicant's option; see subsection 3 above). An original, signed

delegation from the CEO of the jurisdiction will also be required if

the applicant is not the CEO. If both the CEO and the designated

signatory for the jurisdiction are the same as reflected in prior

applications under this program in FY 1995 or FY 1996, a copy of the

previously submitted delegation will be acceptable.

As was the case last year, BJA anticipates requesting a mix of

electronic and hardcopy documentation as part of the application

package. All inmate data must be submitted in electronic form (on

diskette). A scannable, hardcopy application form will be used to

obtain basic information on the applicant (e.g., address, contact

person, etc.). Separate, hardcopy certifications and assurance forms

may be used, or the scannable application form may contain the

necessary standard certifications. In any event, the applicant will be

required to provide all inmate and cost information necessary for BJA

to make the award, as is described in this announcement.

In a change from last year, the deadline for submission of both

inmate data and the other application documents will be on the same

date. This date will be a firm deadline (evidenced by postmark); no

extensions of this deadline will be given and late submissions of

inmate diskettes will not be allowed. Applicants will be given at least

30 working days to complete the required application. During the

application period, BJA staff will provide technical assistance to

potential applicants preparing the inmate data diskettes and will be

available to answer any questions that applicants may have about

filling in the formal application documents. After applicants have met

the deadline, BJA reserves the right to ask for additional information

to clarify or correct minor errors in the application.

7. Award Calculation and Funding Availability

The FY 1997 amount available for distribution is $492,038,000. As

in past years, the formula for award calculation will, first, establish

the final dollar claim of each applicant, based on the verification of

its inmate and cost data. This calculation will involve multiplying the

number of reimbursable inmates (including a percentage of inmates not

matched) by the lengths of stay for these inmates by the applicant's

actual annual cost per day per inmate. The final claims for all

applicants will then be totaled and divided into the available

appropriation to determine the percentage payoff on the dollar of each

claim. Finally, the award amount for each applicant will be calculated

based on that payoff percentage.

Applicants cannot be assured of receiving an award, however,

because it is possible that, following INS verification of inmate data,

there will be no reimbursable inmates upon which to base an award.

Similarly, past reimbursements should not be used to predict future

reimbursements because the number of applicants may vary and the

eligibility criteria have changed in each of the three years of this

program's operation.

8. Award and Post-Award Processing

BJA will continue to utilize grants as its reimbursement mechanism.

The conditions governing general award eligibility, drawdown, and use

of funds after drawdown, and the processes used for these events will

remain the same as in the past year. In particular, all payments to

applicants will be made electronically. New applicants will be expected

to provide information to allow electronic transfer of funds as part of

their award acceptance. Grant closeout will be automatic. Award funds,

once properly distributed to eligible applicants, may be used by these

jurisdictions for any lawful purposes and need not be applied towards

reimbursement of correctional costs.

Nancy E. Gist,

Director, Bureau of Justice Assistance.

[FR Doc. 97-6740 Filed 3-17-97; 8:45 am]

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