Michael R. Bromwich Inspector General, U.S. Department of Justice
House Judiciary Committee Subcommittee on Immigration and Claims
Immigration Reorganization and Improvement Act of 1999
July 29, 1999 * * * * *
Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee on Immigration and Claims:
I appreciate the opportunity to appear before the Subcommittee to discuss the Office of the Inspector General’s (OIG) oversight of the Immigration and Naturalization Service (INS). As you are well aware given my prior appearances before this Subcommittee, the OIG expends significant resources to investigate, audit, and inspect INS programs and personnel. In fact, given the importance of the issues, the amount of taxpayer money appropriated to INS, and, frankly, the concern many in the Department of Justice and the Congress express with respect to INS’s management of its programs and personnel, the OIG spends more than half of its total resources on INS-related matters.
This morning I plan to highlight significant examples of our INS oversight work completed in the last two years that may be helpful to the Subcommittee as it considers H.R. 2528, the “Immigration Reorganization and Improvement Act of 1999.” These OIG reviews cover a broad range of issues and problems, from audits of INS’s financial statements and automation systems to inspections of the voluntary departure and Visa Waiver Pilot programs.
Before I describe these specific workproducts, however, I want to identify for the Subcommittee three issues that, left unchecked, will affect the OIG’s ability to conduct comprehensive and aggressive oversight of INS and other Department of Justice components.
- Union Presence at OIG Interviews
In June 1999, the Supreme Court held in NASA v. FLRA that OIG investigators are “representatives” of their agencies and, therefore, employees under investigation by an OIG have a right to union participation in any OIG interview if they believe that such an examination will result in disciplinary action. This decision, unless changed by Congress through legislative action, will have an adverse impact on the OIG’s ability to conduct investigations of INS and other Department personnel.
One of my concerns is that union representatives – in seeking to protect an entirely different set of interests than the OIG – may knowingly or unknowingly subvert the “truth-seeking” process. It is critical in any investigation to allow witnesses an opportunity to describe what they know in their own words. Having a union representative in interviews with several different witnesses has the potential to skew the fact-finding process.
This problem is particularly acute with respect to our criminal investigations. The Supreme Court’s decision may discourage the FBI from working jointly with the OIG on important border corruption cases. Unlike OIG-led investigations, union representatives have no statutory right to be present in investigations conducted by the FBI. In the end, this lack of coordination between the FBI and OIG may result in significant cases slipping through the cracks. I ask the Subcommittee to support a legislative remedy to address this situation.
- Merit Systems Protection Board
This Subcommittee is aware of our investigation of wrongdoing by senior INS officials who intentionally deceived a congressional task force visiting a Miami detention facility in June 1995. In light of our findings, the Department imposed relatively severe discipline on the INS officials involved in the deception and cover-up. However, within the past two years the Merit Systems Protection Board (MSPB) reduced the Department’s disciplinary decisions to near-meaningless proportions. Such actions diminish accountability and may foster a sense that some INS employees are “above the law.” I urge this Subcommittee or another committee of the Congress with oversight jurisdiction to examine the decisions of the MSPB in these cases. Department managers need to have the ability to appropriately sanction employees who violate standards of conduct without the fear that their well-founded decisions will be overturned for what appear to be frivolous reasons.
- Lack of Adequate Funding
The OIG faces a dire situation both in the current fiscal year and in FY 2000. Without intervention, the OIG will be unable to continue its aggressive and comprehensive oversight efforts at INS and other Department components. The problem is typifies by our Investigations Division. In 1993, the OIG opened 651 investigations against INS personnel. In 1998, the OIG opened 437 and as of June 1999, 261 investigations had been opened. The OIG has utterly failed to keep pace with a Department that has added more than 30,000 employees during the past six years and whose budget has doubled to $21 billion during the same period. Now, instead of worrying about keeping pace with the Department’s rapid growth, I am concerned about the OIG losing ground. I have appreciated your firm support in the past, Mr. Chairman, and I encourage you and other members of the Subcommittee to help ensure that the OIG obtains the resources necessary to continue our important work.
- Union Presence at OIG Interviews
- Highlights of Recent OIG Reviews
The OIG Audit, Inspection, and Investigations Divisions are all involved in examining systems and the conduct of personnel to identify waste, fraud, and abuse in INS programs. We also routinely make recommendations in an effort to assist INS in improving its operations.
- INS Financial Statement Audits
INS received a disclaimer of opinion on its financial statements for FY 1998 – that is, auditors were unable to complete the audit because of the condition of the accounting records and relevant documentation. This was the third year an INS-wide financial statement audit was performed and the agency’s third disclaimer of opinion. Prior audits of the INS Fee Accounts and Breached Bond Detention Account also resulted in disclaimers.
For FY 1998, the auditors noted nine reportable conditions, five of which were considered material weaknesses. A “material weakness” is a condition in which internal controls are not sufficient to ensure that errors or fraud that are material to the financial statements or performance measures would be detected timely in the normal course of events. “Reportable conditions” are significant deficiencies in internal controls that could adversely affect the organization’s ability to meet its internal control objectives. All material weaknesses are reportable conditions. However, only the most serious reportable conditions are material weaknesses
The most critical issues for INS are the weaknesses identified in its financial management system. INS has struggled for years with its antiquated core financial management system and various subsystems that are not integrated into an overall system. INS has been in the process of replacing this core system for several years but has encountered significant delays in implementing the new system.
During FY 1998, INS management made substantial efforts to reconcile its cash accounts with Treasury accounts, but was still out of balance by $76 million at year’s end. Approximately $35 million of the difference was identified by the conclusion of our audit fieldwork, but the remaining $41 million still needed to be researched and reconciled.
Improvements were made in FY 1998 in some areas – most notably property and equipment. However, the auditors still considered this a material weakness for FY 1998 because of the substantial effort needed to obtain year-end amounts and the lack of ongoing procedures to record and reconcile these accounts.
Compliance issues reported by the auditors included the failure of INS financial management systems to comply with the Federal Financial Management Improvement Act; INS’s failure to pay interest to some vendors as required by the Prompt Pay Act; INS’s failure to properly allocate cash receipts between two deposit accounts; and lastly, the obligation of funds by INS based on anticipated needs and unforeseen costs rather than bona fide transactions. We considered this last issue serious enough to refer to our Investigations Division for review. All of these issues represent instances where controls did not function as intended.
While INS has shown improvement in some of these critical financial management areas over the last three years, it still has substantial problems that prevent it from effectively producing and using financial information in its day-to-day operations. Of particular concern are the continuing delays in replacing its automated financial management system and implementing a corresponding financial reorganization. Also, because of a critical shortage of qualified financial personnel, INS is becoming increasingly dependent on contractor support in the financial management arena. We are concerned about INS’s reliance on contractors because it is primarily a short-term fix instead of a systemic, long-term solution necessary for INS to succeed.
- INS Automation Initiatives
INS plans to spend approximately $2.8 billion on its automation programs through 2001 and beyond, but our reviews have found that they fail to adequately manage these programs. In September 1995, we first notified INS of our concerns regarding systemic problems in their automation program. Based on extensive audit work during 1990 through 1995, we identified ten risk areas in INS’s management of automation programs requiring close attention by agency managers.
In March 1998, we reported on a comprehensive audit of INS’s management of its automation programs. We noted a failure to monitor contractor activities, lack of comprehensive performance measures, insufficient tracking of projects, and numerous other deficiencies. We concluded that INS did not adequately manage its automation programs and risked completed projects not meeting overall goals, significant delays in completing the programs, and unnecessary cost increases.
In July of this year we issued a follow-up report and again found that INS does not adequately manage its automation programs. In the most recent audit, we noted that INS could not sufficiently track the status of its automation projects to determine whether progress was acceptable given the amount of time and funds already spent. As a result, INS continued to spend hundreds of millions of dollars on automation projects for which there were inadequate budgeted costs or explanations for how the funds were spent. In addition, projects were running behind schedule with no documented explanations as to what was causing the delays. We also found serious deficiencies in compliance with the system development life-cycle process. As a result, INS had no assurance that systems will meet performance and functional requirements.
We identified three causes for these problems. First, INS managers did not have a common baseline of automation projects by which they could focus their collective efforts. Indeed, INS had substantial difficulty providing us with a complete list of their automation projects. Second, project information needed for effective management and decision making was not readily available. Third, INS managers did not develop, document, or implement basic management control processes necessary to ensure that projects will be completed under cost, on schedule, and within performance and functional requirements.
Despite uncertain funding sources and rising costs that could significantly delay completion of its automation projects, INS still had not developed a contingency plan to ensure that mission-essential programs are implemented. In addition, the ultimate cost for INS’s automation programs was uncertain because actual costs incurred were unreliable and projected cost estimates were unsupported.
We also found that INS had not implemented adequate safeguards to ensure the accuracy of existing data to be used by systems currently being developed or re-engineered. Moreover, INS had not implemented adequate safeguards to ensure the adequacy of future data inputs. As a result, existing or new INS systems could rely on inaccurate or unreliable data.
- Automated Biometric Identification System (IDENT)
In addition to our comprehensive audit of INS’s management of its automation systems, we examined the management and performance of individual automation systems as well.
In a report issued in March 1998, the OIG assessed INS’s implementation of its IDENT system that uses fingerprints and other biometrics to enhance its law enforcement and benefits processing operations. Border Patrol agents and inspectors at ports of entry historically have relied upon the name given by individuals or listed on identification documents to identify individuals they encounter. Such name-based identification has inherent problems. Along the Southwest border, apprehended aliens usually do not carry identification and often provide false names. Consequently, existing records relating to these individuals cannot be located. INS’s solution is to use biometrics – individually unique biological measurements such as fingerprints, hand geometry, facial recognition, retinal patterns or other characteristics.
Our inspection found that INS was enrolling less than two-thirds of the aliens apprehended along the U.S.-Mexico border into IDENT. In addition, INS had entered the fingerprints in the IDENT lookout database of only 41 percent of the aliens deported and excluded in FY 1996; of these, only 24 percent had accompanying photographs even though INS relies on photographs to confirm identification. These failures hamper INS’s ability to make consistent and effective use of IDENT as a tool for border enforcement.
We found virtually no controls in place to ensure the quality of data entered into the IDENT lookout database. As a result, we found duplicate records and invalid data. We also raised concerns that INS had not provided sufficient training to Border Patrol agents on the use of IDENT.
The OIG is currently conducting an investigation of INS’s interactions with alleged serial killer Angel Maturino Resendez. Among other things, the OIG review will examine any corrective actions taken as a result of the findings and recommendations in our IDENT report.
- Performance Analysis System
INS uses its computer-based Performance Analysis System (PAS) to track and report agency productivity. PAS contains data on the workload activities of INS employees such as the number of hours worked that relate to the processing of applications for various benefits available under U.S. immigration law. PAS is an important system used to support budget requests, determine position allocations, measure planned versus actual accomplishments, and analyze application backlogs.
An OIG audit disclosed that PAS adjudications and naturalization data are not reliable. We found arithmetical errors, data omissions, and incorrect posting of data. The data are unreliable because of: (1) inadequate monitoring of data collection, consolidation, and reporting at field offices; (2) unclear guidance; and (3) lack of an audit trail to connect PAS data to underlying applications and case files. Because the PAS adjudications and naturalization data are unreliable, we concluded that they do not provide INS with an adequate basis for sound decisions. We consider the accuracy of any reports based on PAS to be questionable.
- Visa Waiver Pilot Program
Several of our reviews identified problems in INS programs that concern how and when citizens of other countries may enter or stay in the United States. We found that some of these problems could result in aliens, criminals, or terrorists illegally entering or remaining in the country.
In one of our more significant inspections, the OIG assessed INS efforts to minimize illegal immigration and security threats posed by abuse of the Visa Waiver Pilot Program (VWPP), a program that waives visa requirements for citizens of 26 participating countries. Visitors traveling for business or pleasure under the VWPP do not have to obtain visas and therefore are not screened in any way prior to their arrival at U.S. ports of entry. Instead, VWPP applicants present their passports and other inspection documents to INS inspectors on arrival. The inspectors observe the applicants, examine their passports, and conduct checks against a computerized lookout system to decide whether to allow applicants entry into the United States. This review by INS inspectors is the principal and, in many cases, the only means of preventing illegal entry. INS inspectors have, on average, less than one minute to check and decide on each applicant. In fiscal year 1997, 14.5 million visitors entered the United States under the VWPP.
We found that INS inspectors do not query all VWPP passport numbers against the computerized lookout system (machine-readable passports are queried automatically). In addition, our inspection found that terrorists, criminals, and alien smugglers have attempted to gain entry into the United States through the VWPP. We also found that VWPP visitors violate their nonimmigrant status by staying beyond the allowed 90-day limit; however, sufficient reliable data does not exist to gauge the extent of the problem.
INS informed us that the theft of passports from VWPP countries is a problem. Because these stolen passports are genuine documents, their fraudulent use is difficult for INS inspectors to detect. During our review, we tested a sample of 1,067 stolen VWPP passports and found that almost 10 percent may have been used to successfully enter the United States. We conducted a separate review of 138 stolen passports because INS intelligence reports indicated that alien smugglers were using some of these passports. Our review showed that 46 of the passports were used for successful entry, some more than once.
We identified problems with the way INS maintains its lookout system. INS fails to enter information about stolen VWPP passports into the database in a timely or accurate manner. As a result, 567 stolen passports in our sample of 1,067 (53%) had no lookout record, and of the 500 passport numbers that had lookout records, 112 (22%) were not entered accurately. This missing or inaccurate information reduces the effectiveness of the lookout system and increases the possibility that inadmissible VWPP applicants can enter the United States.
Our report noted weaknesses in INS’s intelligence operations that result in a failure to collect and disseminate VWPP intelligence information systematically. Finally, we recognized promising INS efforts to prevent illegal entry through the use of such things as airline carrier training and cooperative efforts with Customs, but we found these efforts sporadic and ad hoc.
- Voluntary Departures
Voluntary departure is a process by which an illegal alien agrees to leave the United States voluntarily, thus avoiding the penalties and stigma of removal. Voluntary departure is an alternative to a formal order of removal for eligible illegal aliens to leave the country through a streamlined and quicker process while potentially saving the U.S. Government detention and removal costs. We sought to determine whether INS district officers and immigration judges from the Executive Office for Immigration Review (EOIR) adequately establish alien’s eligibility for voluntary departure and whether aliens granted voluntary departure actually leave the United States.
Our inspection found that aliens were granted the privilege of voluntary departure when, in some cases, they were not eligible because they were aggravated felons. INS district officers performed few criminal checks prior to granting voluntary departure to apprehended aliens and immigration judges frequently issued decisions without completed checks.
The inspection also revealed that INS could not verify that many aliens granted voluntary departure had left the country. We found no evidence of departure in 54 percent of the cases that we reviewed. INS district officers seldom seek or apprehend aliens who violate voluntary departure orders, and immigration judges do not fully utilize voluntary departure bonds or conditions to assist INS in the enforcement of voluntary departure orders.
- Fingerprint and Biographical Checks
We also conducted reviews of INS’s management of programs that involve the collection of fees for services that INS provides to the public. For example, INS receives a fee from applicants for conducting background checks prior to the individual receiving certain immigration-related benefits. We reviewed INS’s billing and payment procedures for the background checks conducted by the FBI.
Individuals applying for benefits from INS must furnish fingerprints, biographic data, and other background information. INS requests background checks from the FBI, Central Intelligence Agency, State Department, and Defense Investigative Service depending on the type of benefit and the status of the applicant or petitioner at the time of application. FBI background checks include fingerprint and biographical checks.
For FY 1996, INS paid the FBI $32.5 million to conduct more than 1.8 million fingerprint checks and $5.7 million to conduct approximately 1.6 million name checks. In FY 1997, INS paid the FBI $45.5 million for 2.6 million fingerprint checks. INS requested that we conduct an audit of the adequacy of its procedures for requesting and paying for fingerprint and name checks and the extent and accuracy of FBI billings for these services.
We found that INS did not reconcile payments against its requests for fingerprint and name checks conducted by the FBI. INS did not have a system to track and account for all of the fingerprint and biographical check requests submitted to, or the results received from, the FBI. Because of this weakness, INS paid about $7 million during fiscal years 1996 and 1997 for unclassifiable and duplicate fingerprint cards, submitted incomplete or inaccurate fingerprint checks for thousands of INS applicants, and did not detect a potential FBI underbilling of approximately $800,000. For name checks, we identified approximately $220,000 that INS incurred unnecessarily for duplicate requests. We also identified more than $230,000 for services rendered by the FBI but not charged to INS. This latter amount is offset by about $563,000 in charges not supported adequately by the FBI. In light of the OIG review, INS and the FBI initiated actions to track requests for fingerprint and background check services and to reconcile billings.
Although we perform misconduct investigations in all the components over which we have jurisdiction, the vast majority of our investigations involve allegations against INS personnel. Allegations that INS officials have accepted bribes for illegally providing immigration documents to aliens and for smuggling drugs across the border are the most common. The OIG also investigates allegations of sexual and physical abuse of aliens by Border Patrol agents and the theft of fees paid for immigration benefits, among numerous other types of criminal and administrative misconduct.
- INS Financial Statement Audits
This work demonstrates the OIG’s significant commitment to oversight of INS. I believe our work throughout the years, as typified by the products that I have highlighted in this testimony, have well-served the INS, the Department, and the public, not only by shedding light on problems but also by helping to reach constructive solutions.
I will be happy to answer any questions that you may have.