Glenn A. Fine Inspector General, U.S. Department of Justice
House Judiciary Committee Subcommittee on Immigration, Border Security, and Claims
"The OIG's Audit of the Immigration and Naturalization Service's Institutional Removal Program"
October 17, 2002 * * * * *
Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee on Immigration, Border Security, and Claims:
Thank you for inviting me to appear before the Subcommittee to discuss the Office of the Inspector General's (OIG) examination of the Institutional Removal Program (IRP). The IRP is an Immigration and Naturalization Service (INS) program designed to identify removable criminal aliens in federal, state, and local correctional facilities; ensure that they are not released into the community; and deport them from the United States upon completion of their sentences.
The OIG has reviewed this program twice in the last seven years, first in 1995 when it was called the "Institutional Hearing Program" and again this year. In our 1995 report, entitled Audit of INS Select Enforcement Activities, we reviewed IRP operations at the state level and found substantial backlogs in the number of foreign-born inmates in state prisons requiring interviews and processing. In our 1995 review, the California IRP was identified as the most problematic of the state operations, accounting for more than 60 percent of the INS's total backlogs. The OIG identified more than $9 million in funds-to-better-use related to detention costs incurred due to inefficiencies in the California state IRP operation. In response to our report, the INS stated it would implement enhancements to its state IRP operations to ensure that all foreign-born inmates were identified and timely processed if determined to be removable.
Our recent audit, which we completed in September 2002, reviewed IRP operations at the federal, state, and county level. We concluded that the INS has not managed the IRP process effectively. We found that the INS has yet to determine the nationwide population of foreign-born inmates, particularly at the county level. Without this information, the INS cannot properly quantify the resources it needs to fully identify and process all deportable inmates. In addition, at the county level we found IRP interviews of foreign-born inmates to determine deportability minimal to non-existent. As a result, many potentially deportable foreign-born inmates passed through county jails virtually undetected. We found instances where inmates not identified by the INS as potentially deportable went on to commit additional crimes, including cocaine trafficking, child molestation, and aggravated assault, after being released into the community.
Further, we found that the INS did not always timely process IRP cases. As a result, it has been forced to detain in INS custody criminal aliens released from state and local correctional facilities - after they have served their sentence - until deportation proceedings can be completed. In the OIG's sample of 151 cases of criminal aliens in INS custody, we identified a total of $2.3 million in IRP-related detention costs, of which $1.1 million was attributable to failures in the IRP process within the INS's control. Examples of these failures include untimely requests for travel documents and failure to timely initiate and complete IRP paperwork.
We concluded that an effectively operating IRP would reduce the need for INS detention of many of these removable aliens after they had finished their prison sentences, thereby saving millions of dollars in detention costs. To provide a context for this finding, we estimated that the total cost of holding IRP inmates in INS detention could run as high as $200 million annually.
This afternoon, I plan to highlight the major findings and recommendations from our most recent IRP review. In addition, given the focus of today's hearing, I will mention several issues that relate to the State Criminal Alien Assistance Program (SCAAP), a multi-billion dollar federal grant program that provided funds to state and local governments to reimburse them for incarcerating criminal aliens.
II. THE INS'S INSTITUTIONAL REMOVAL PROGRAM
A. Background on IRP Process
In 1988, the INS and the Executive Office for Immigration Review (EOIR) established the IRP, then known as the Institutional Hearing Program. Under the IRP, attorneys, immigration judges, and incarcerated aliens are brought together in a system that is designed to expedite the removal process. The program seeks to complete the judicial and administrative review proceedings prior to completion of the alien's sentence, thereby eliminating the need for further detention by the INS after the sentence is served.
The IRP operates at 13 hearing sites at Federal Bureau of Prisons facilities; 83 hearing sites at correctional facilities in 49 states, the District of Columbia, and Puerto Rico; and 4 hearing sites at county facilities in California, Florida, and Massachusetts. According to INS statistics, 30,002 of the 71,063 criminal aliens the INS removed in fiscal year (FY) 2001 were removed via the IRP.
Removal proceedings for incarcerated criminal aliens processed through the IRP begin with the identification of foreign-born inmates upon their entry into federal, state, or county incarceration. Generally, INS district offices are periodically provided with listings of foreign-born inmates from federal and state correctional institutions within their jurisdiction. While such reporting by federal correctional institutions is required, the INS depends on voluntary cooperation from state correctional facilities. At the county level, we were told that INS district offices must proactively check local booking records of inmates identified as foreign-born for potentially deportable criminal aliens.
The INS employees assigned to the IRP, usually immigration agents, conduct on-site interviews with inmates identified as foreign-born to determine their legal status and deportability. The agents also check multiple databases, including the INS's Deportable Alien Control System1 (DACS), the INS's Central Index System2 (CIS), and the Federal Bureau of Investigation's National Crime Information Center (NCIC), and obtain copies of conviction records and other necessary information to support a removal order. Once an inmate is determined to be removable, the INS agent files a Notice to Appear. At this point EOIR is brought into the process and a deportation hearing is held, usually at a designated hearing site within a federal, state, or local prison system. Upon completion of their sentences, deportable aliens are released into INS custody for immediate removal.
Most of the nation's known foreign-born inmate population (about 80 percent, according to INS statistics) is concentrated in seven states: California, New York, Texas, Florida, Arizona, New Jersey, and Washington. As of June 30, 2001, California and Florida ranked first and fourth, respectively, in the number of foreign-born inmates held in state and federal custody, accounting for nearly half of the nation's known population of foreign-born inmates.
Our audit focused primarily on the IRP process at the state and county levels because of the inherent difficulties faced by the INS in coordinating with non-federal agencies. In our review, we assessed whether the INS: (1) effectively managed the IRP and, in particular, how well the INS handled the impact of legislative changes enacted in 1996 on the IRP workload; (2) identified all foreign-born inmates in state or local custody and whether deportable criminal aliens not identified by the INS went on to commit other crimes after being released from incarceration; and (3) incurred detention costs due to failures in the IRP process and the causes underlying those failures.3
B. Identifying the Foreign-Born Inmate Population
The INS has not been able to keep pace with the increases in the IRP workload resulting from the changes in immigration law brought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and the Anti-Terrorism and Effective Death Penalty Act of 1996. These laws significantly expanded the definition of "aggravated felony" and lowered the threshold for deportation for "crimes of moral turpitude" from sentences imposed of one year or more to crimes that carried potential sentences of one year or more. These revisions in the law dramatically increased the number of criminal aliens eligible for deportation - especially those at the county level - and thus significantly increased the IRP's workload.
Despite the foreseeable impact of the legislation, we found little evidence to indicate that INS management had taken steps to address the increased workload, particularly at the county level. We found that, to date, the INS has not conducted an agency-wide analysis to determine the nature and scope of the IRP's workload. While the INS performed a resource and staffing evaluation prior to 1996, the scope was limited to a single INS region. In addition, this analysis focused only on state and federal facilities, leaving out the vast populations of potentially deportable foreign-born inmates passing through the nation's county jails.
We concluded that the INS cannot make an informed assessment of the resources required for the IRP if it does not know the scope of the problem. While the INS tracks foreign-born inmate populations at the federal and state levels, it does not maintain INS-wide statistics on foreign-born inmate populations at the county level. The INS has access to electronic databases or is provided listings of foreign-born inmates on a routine basis from federal and state correctional agencies. At the county level, however, the IRP requires on-site jail checks by INS agents to identify foreign-born inmates as they enter the local correctional system. We found that the INS was not making a consistent or comprehensive effort to check local jail booking records on a daily basis for deportable criminal aliens at the local facilities we reviewed in the four counties.
At the county level, we found IRP interviews of foreign-born inmates to determine deportability minimal to nonexistent. We observed this first-hand at the county facilities we visited in California and Florida. INS officials acknowledged that lack of coverage at the county level was widespread.
The gap between IRP resources and workload is dramatic. In Dade County, Florida, alone, nearly 44,000 foreign-born inmates were booked into the county jail in FY 2001, according to the Dade County Sheriff's Department. This was nearly twice the intake of foreign-born inmates in the entire California State prison system during the same time period.
While coverage at the county level was the greatest challenge facing the IRP, statistics show that coverage at state prisons in California, the state system that ranks first in the number of foreign-born inmates held in state custody, declined in FY 2001. During FYs 1999 and 2000, INS coverage of state intake facilities was at nearly 100 percent (i.e., INS officers interviewed nearly all facility-identified foreign-born inmates as they entered the system). However, in FY 2001 INS coverage at the California state intake facilities had fallen. The INS failed to interview 2,464 (19 percent) of the 13,208 foreign-born inmates that entered the California system in FY 2001.
Recent data indicates that coverage at the state intake facilities has continued to drop. Through December 2001, the INS failed to interview 1,364 (45 percent) of the 3,015 foreign-born inmates at the state intake facilities. While INS officials did not attribute a specific cause for this significant drop in coverage, we believe that it stems from a combination of logistics, chronic INS vacancies, and diversion of IRP resources to other higher-priority INS projects.
C. IRP Staffing
We found that staffing levels for the IRP decreased between FY 2000 and FY 2001 because of chronic INS-wide vacancies in the immigration agent position, the backbone of the IRP. Exacerbating the problems of stagnant resources, an increasing workload, and chronic vacancies in IRP positions, INS employees assigned to the IRP may be redirected, at district management's discretion, to any one of several competing INS priorities. We found that immigration agents assigned to the IRP often were detailed to assist with other program activities, such as employer sanctions, anti-smuggling, and fraud. While the reallocation of resources is not unique to the IRP, it is particularly crippling to IRP operations.
D. Recidivism of Criminal Aliens at County Level
The most immediate risk associated with breakdowns in the IRP process is that an unidentified deportable criminal alien will be released back into the community and will commit further, possibly violent, crimes. In order to verify the occurrence and nature of recidivism among potential IRP candidates that the INS is not identifying, we reviewed a sample of files for inmates identified by the facilities as foreign-born who were released from facilities in the two California counties and two Florida counties. In nearly all instances, we found no evidence that the INS had interviewed the foreign-born inmates in those counties to determine their legal status prior to their release.
As an example of our findings, the Dade County Sheriff's Department reported a total of 2,576 foreign-born inmates were released from Dade County facilities in June 1999. We reviewed documentation for 40 of the 2,576, but were unable to verify, due to lack of adequate records, whether the INS interviewed any of them. We found that at least 8 of the 40 released inmates went on to commit subsequent crimes after their release, as shown in the table below:
|RECIDIVISM IN DADE COUNTY, FLORIDA|
|Identified by County as Foreign-Born but not Interviewed by INS||Original Charge||Subsequent Charge|
|Case 1||Battery||Aggravated assault|
|Case 2||Grand theft||Grand theft (3rd Degree)|
|Case 3||Possession of a controlled substance||Cocaine trafficking|
|Case 4||Grand theft||Battery|
|Case 5||Cocaine possession||Cocaine possession|
|Case 7||Grand theft||Grand theft|
|Case 8||Marijuana possession||Battery/Possession of a controlled substance|
In our report, we describe similar instances in the three other counties we reviewed of unidentified criminal aliens being released back into the community and committing more crimes after their release, including crimes such as sexual abuse of a child, cocaine trafficking, and assault with a deadly weapon.
E. Lack of Timely Inmate Processing
We found that the INS did not always timely process IRP cases and, as a result, has been forced to detain criminal aliens released from incarceration into INS custody to complete deportation proceedings. In order to determine the causes for IRP-related detention costs, we reviewed a judgmental sample of 151 A-files of criminal aliens in INS custody, which included criminal aliens released from federal, state, and local correctional facilities throughout the country.
For our sample of 151 files, we identified a total of $2.3 million in IRP-related detention costs, of which $1.1 million was attributable to failures in the IRP process within the INS's control, and $1.2 was related to factors beyond the INS's immediate control. Failures in the INS's IRP process included:
- incomplete or inadequate casework;
- untimely requests for travel documents;
- failure to accommodate for delays in the hearing process;
- failure to timely initiate and complete IRP casework; and
- use of inappropriate removal procedures.
Factors beyond the INS's control included:
- countries that, through design or incompetence, delay the issuance of travel documents; and
- countries that refuse to take back their citizens.
The detention costs associated with these breakdowns in the process are significant. According to INS statistics, the average daily population for criminal aliens held in INS custody was over 10,000 in FY 2001, accounting for over half of the INS's available bed space. The INS indicated that the overwhelming majority of these criminal aliens were federal, state, or local inmates who were released into INS custody for removal. Under ideal conditions, an effectively operating IRP would preclude the need for INS detention in such instances. Based on this unaudited data, total IRP-related detention costs could run as high as $200 million annually. While it is impossible to say how much of these costs could be avoided by an effective IRP program, based on our sample it appears that the amount of avoidable costs is large.
F. SCAAP Grants and State Cooperation
The IRP process relies on the cooperation of the institutions in which criminal aliens are incarcerated. Without this cooperation, the IRP cannot function effectively. We found that while states and counties throughout the country have received hundreds of millions of dollars annually in funding through SCAAP, the SCAAP program contains no provisions requiring state and county recipients to cooperate with the INS in its efforts to remove criminal aliens.
SCAAP grants are unconditional and require no reciprocation on the part of state and local governments in return for reimbursement from the federal government for the costs of incarcerating deportable criminal aliens. State and local governments receive funding from SCAAP grants regardless of whether the INS gains custody of those incarcerated foreign-born inmates deemed deportable.
Although the Immigration Act of 1990 required each state receiving certain law enforcement grant funds to provide the INS with criminal history information on aliens convicted of violating state laws, there are no similar provisions in the SCAAP grants requiring the recipient's cooperation with local INS offices as a condition of receiving funds.
For example, California received more than $350 million in SCAAP funds in FYs 2000 and 2001 for incarcerating criminal aliens. However, we found that California has not cooperated fully with the INS in streamlining the IRP process. Both the INS and the EOIR characterized California as being among the least cooperative states with regard to improving the IRP process. California currently processes foreign-born inmates in its state system at all 11 intake facilities located throughout the state in an area roughly 120,000 square miles. In order to ensure that all foreign-born inmates are interviewed upon entry into the system, the INS must make regular visits to each of these facilities, some of which are located hours from the nearest INS district or sub-office. While other large states, such as Texas and New York, have consolidated the number of intake facilities at which foreign-born inmates are processed, California's intake system remains a logistical challenge to local INS offices.
We also were informed that INS employees could not always obtain access to inmates serving time in state or county facilities to begin the hearing process at an early stage, particularly in California. EOIR officials agreed and stated that California was less cooperative on IRP-related issues, such as access to prisons, compared to other large states such as New York and Florida. Another problem, we were told, was that the INS often must wait until the criminal alien has been released into INS custody to arrange for travel documents needed for deportation. If the state systems provided the INS with a precise release date for the inmates with sufficient lead-time, this would significantly reduce the need for additional detention in INS custody.
To address the problems of the IRP program that we cite in our report, we recommended that the INS take the following steps:
- Determine the total foreign-born inmate population at the county level, as well as the state and federal levels; the resources required for the IRP to cover the population fully; and the risks involved with not providing full coverage.
- Strengthen IRP program management by specifically accounting for program expenses and dedicating resources to the program.
- Request that the Office of Justice Programs change current SCAAP grant provisions to require, as a grant condition, the full cooperation of state and local governments in the INS's efforts to process and deport incarcerated criminal aliens.
- Fully develop plans currently under consideration for an expanded detention enforcement officer position to replace the vacancy-ridden immigration agent position.
- Develop clear, consistent, and standardized procedures for A-file documentation in the IRP process to enhance efficiency.
- Ensure that INS officers make use of streamlined procedures for removal as authorized under the 1996 Act to minimize detention costs.
- Develop and implement, in coordination with the Department of State, a Memorandum of Understanding outlining the role of liaisons between the INS and the Department of State. This should include the delineation of responsibilities with respect to the timely issuance of travel documents.
In its response, the INS concurred with these recommendations and stated that it would take corrective action.
Our audit found significant shortcomings in the INS's management of the IRP process, particularly at the county level. INS officials acknowledged the lack of IRP coverage, which allows thousands of potentially deportable foreign-born inmates to pass through county jails undetected. We found that foreign-born inmates not identified by the INS as potentially deportable went on to commit additional crimes after being released into the community.
At the state level, we found that the INS failed to interview 19 percent of foreign-born inmates entering the California state prison system in 2001. In 2002, the coverage appears to be worsening, indicating a possible resurgence of backlogs of foreign-born inmates requiring interviews.
Our review also found that the INS has not taken fundamental steps to assess the scope of the foreign-born inmate population, the resources required to identify and process through the IRP all foreign-born inmates deemed deportable, and the risks associated with not doing so. Further, the INS has not been able to keep pace with the increases in IRP workload resulting from sweeping changes in immigration law enacted in 1996 that made deportable whole classes of criminal aliens previously eligible to remain in the United States.
Problems with recruiting and retaining personnel in IRP positions, coupled with the reallocation of scarce resources away from the IRP to other INS programs, undermines the integrity of the program. Given the size of the foreign-born inmate population and the chronic staffing shortages plaguing the program, we believe the INS should ensure that IRP resources are not diverted and should consider establishing a discrete IRP budget and office with dedicated positions and resources.
Finally, the full cooperation of state and local governments is essential to an effective and efficient IRP operation. Toward that end, we recommend that the INS propose revisions to the SCAAP grant requirements that would require, as a grant condition, the recipients' full cooperation in INS's removal efforts with regard to incarcerated criminal aliens. In our judgment, requiring such conditions as a prerequisite to these grants could greatly enhance the effectiveness and the efficiency of the IRP. We believe improvement in the IRP is needed urgently to identify deportable criminal aliens before they are released into the community and to reduce the costs of detaining criminal aliens in INS custody before they are deported.
- DACS captures deportable alien data; tracks aliens who are arrested, detained, or formally removed from the country; produces deportation forms and reports; and makes the information accessible online to deportation officers and other INS employees.
- CIS is the INS's main automated information system, serving both the INS's benefits and law enforcement functions. The CIS contains data on lawful permanent residents, naturalized citizens, violators of immigration laws, aliens with Employment Authorization Document information, and others for whom the INS has opened files or in whom it has a special interest.
- During our audit, the OIG reviewed applicable laws, regulations, and INS manuals and memoranda; interviewed INS personnel responsible for the IRP; and tested the IRP process by examining a nationwide judgmentally selected sample of INS alien files (A-files) of removable criminal aliens. We also observed and analyzed the IRP process in two states (California and Florida) and in two counties within each of those states (Fresno County, California; Kern County, California; Broward County, Florida; and Dade County, Florida). In addition, we reviewed 545 judgmentally selected files of inmates identified as foreign-born by state or local officials at the California Department of Corrections (DOC), the Florida DOC, and local jail facilities in the four counties.