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Immigration and Naturalization Service Institutional Removal Program
Report No. 02-41
Office of the Inspector General
The INS did not always timely process IRP cases, and as a result, was forced to detain criminal aliens released into INS custody from federal, state and county incarceration to complete deportation proceedings. In our review of 151 A-files judgmentally selected from a universe of 15,653 criminal aliens in INS custody, we identified $1.1 million in detention costs due to failures in the IRP process within the INS's control, and $1.2 in detention costs arising from factors beyond the INS's immediate control for a total of $2.3 million in IRP-related detention costs. Failures in the IRP process within INS's control included (1) incomplete or inadequate casework; (2) untimely requests for travel documents; (3) failure to accommodate for delays in the hearing process; (4) failure to timely initiate and complete IRP casework; and (5) the use of inappropriate removal procedures. Factors beyond the INS's direct control, included countries that, through design or incompetence, delay the issuance of travel documents and countries that refuse to take back their citizens.
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 that 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.
Analysis of Detention Costs
In order to determine the causes for IRP-related detention costs, we reviewed a judgmental sample11 of 151 A-files of criminal aliens released from federal, state and local correctional facilities throughout the country. In addition, we interviewed INS officials at all levels, as well as officials at the EOIR, the GAO, and the Department of State. Our review of the IRP process revealed a number of causes for detention costs incurred related to the failure of the IRP to effect removal of criminal aliens upon their release from incarceration. The causes underlying the $2.3 million in detention costs we calculated included factors both within and beyond the INS's direct control, as shown in the table below. There were also some factors over which the INS had some control but was dependent upon the cooperation of outside agencies to effect change, such as the hearing process and the timely issuance of travel documents.
|SUMMARY OF DETENTION COSTS FOR A-FILES REVIEWED|
|Causes for Delays||Number of Instances Occurring12||Average Days of Detention||Detention Costs13|
|Within the INS's Control|
|Incomplete/Inadequate Casework||12||51||$ 36,073|
|The Hearing Process||85||144||716,716|
|Failure to Initiate IRP||10||36||20,964|
|Inappropriate Removal Procedure||7||153||62,893|
|Beyond the INS's Direct Control|
|Travel Documents||21||279||$ 342,517|
Factors Within the INS's Control
Our analysis of the selected A-files revealed that approximately $36,073 of IRP-related detention costs resulted from poor file maintenance or incomplete preparation of IRP documents. D&R division officials responsible for the actual removal of criminal aliens confirmed that the organization and processing of IRP-related documents maintained in the A-files needs to be improved. Processing deficiencies included primary documents, such as photographs, fingerprints and conviction records, missing from case files. In addition, INS forms, such as the I-213, which is used to document the initial interview with the alien, were sometimes not properly authorized.
Incomplete or inadequate casework was of particular concern in the INS Western Region, where D&R officials estimated that at least 20 percent of the criminal aliens processed through the IRP had to be re-interviewed because the alien's identity was not accurately confirmed at the front-end of the process. After completing the initial interview, INS agents must perform database checks to confirm the identity of the criminal alien. However, in at least one district sub-office in California, database checks were not performed by an immigration agent, but rather were delegated to untrained personnel, who had not been involved in the initial face-to-face interview of the criminal alien. We believe this may have contributed to the breakdowns in the process. D&R division officials surmised that the untrained personnel were accepting the first alien name listed after conducting a name search on the DACS and/or CIS database systems, and as a result may not have correctly identified the criminal alien in question.
Delays in the receipt of travel documents14 result from factors both within and beyond the INS's direct control. With regard to factors within the INS's control, we determined that the INS failed to request travel documents from countries of origin within a reasonable period of time, even when a criminal alien's removal was approved prior to the INS taking custody. For the majority of the A-files we reviewed, the INS had requested travel documents only after the criminal alien completed serving his prison sentence and had been released into INS custody. The D&R division was primarily responsible for requesting travel documents from embassies or consulates. Our review found that the criminal aliens in question were in INS custody an average of 67 days before the INS initiated a request for travel documents, resulting in detention costs of $260,123. INS officials at the exit conference explained that the documentation in the A-files might not fully reflect the actions being taken by INS officers prior to submitting a request for travel documents, such as obtaining a valid passport from the alien's country of origin, and other necessary documentation. If delays in obtaining travel documents were unavoidable, then it would be incumbent upon the INS to anticipate and plan for these delays, to the extent possible, by initiating requests for travel documents prior to the alien's release into INS custody.
The Hearing Process
We noted detention costs of $716,716 resulting from failures to accommodate for the delays inherent in the hearing process. From the filing of the notice to appear with the EOIR, to the signing of the removal order by an immigration judge, the hearing process may take anywhere from two weeks to two months, or longer. Legal residents or asylum applicants, for example, would be expected to contest a removal order, and therefore a protracted hearing process would be expected. In order to avoid excessive detention time, the INS needs to anticipate such expected delays and accommodate them by bringing the EOIR into the process at the earliest date possible. INS officials in California commented that early preparation was not always possible because it was sometimes difficult for a criminal alien's attorney to get access to the inmate while serving time at the state level. The EOIR agreed that California was less than cooperative on IRP-related issues, such as prison access, relative to the other large states, such as New York and, in particular, Florida. With regard to the IRP at the state level, the relationship between the INS, the EOIR, and Florida appears to be a model practice. EOIR officials indicated that this was due in large part to the cooperative efforts of the Florida state government with regard to removing incarcerated criminal aliens. This was confirmed in our review, which found that fewer process-related delays occurred in Florida than elsewhere.
Failure to Timely Initiate the IRP Process
Although the goal of the IRP is to complete necessary removal proceedings prior to the end of the criminal alien's sentence, we found that for ten of the criminal aliens in our sample, the INS failed to initiate and complete IRP casework during incarceration, resulting in $20,964 in detention costs incurred by the INS. In some cases, IRP processing did not begin until the criminal alien was released into INS custody from federal, state or local authorities, which defeats the purpose of the program.
Inappropriate Removal Procedures
Another factor affecting the timely removal of criminal aliens was the use of inappropriate removal procedures. Depending on the immigration status of the criminal alien, the type of removal proceedings may be one of the following; administrative removal, reinstatement of a prior removal order, or a hearing before an immigration judge (see Appendix II for a description of the types of removal). Both the administrative removal and reinstatement of prior removal orders are the result of streamlining efforts established under the IIRIRA, both of which allow for the expedited removal of certain criminal aliens without the need for formal hearings before an immigration judge.
We determined that in 7 of the 151 cases reviewed, the INS did not use appropriate expedited removal proceedings. For example, criminal aliens without legal status (illegal aliens), convicted of an aggravated felony and sentenced to more than a year in prison, would be subject to an administrative removal. However, we found that six illegal aliens, classified as "Entry Without Inspection," were issued a Notice to Appear (NTA), affording them the opportunity to have their removal cases presented before an immigration judge, when the aliens could have been processed for an administrative removal, thereby avoiding the formal hearing process. In addition, there was one case involving a criminal alien who should have been removed based on a prior removal order (Reinstatement), but was afforded an immigration hearing through issuance of a NTA. The additional detention costs incurred by the INS for the seven cases reviewed resulting from improper or inappropriate removal proceedings totaled $62,89315.
Factors Beyond the INS's Direct Control
In addition to factors within the INS's control, we determined detention costs resulting from factors beyond the INS's control totaling $1,200,714 that included (1) countries that through design or incompetence delay the issuance of travel documents and (2) deportable aliens from certain countries (Cambodia, Cuba, Laos, and Vietnam) that refuse to repatriate their citizens.
While it is incumbent upon the INS to ensure that travel documents are requested in a timely manner, the timely issuance of travel documents also depends upon the cooperation of state and local agencies on release dates. As discussed in Finding 1, there is a need to elicit greater cooperation on the part of state and local authorities with regard to the processing of deportable criminal aliens. Because the window of validity on travel documents is very brief, often not more than one day, INS officials cannot request travel documents until they know the alien's precise date of release.
Given the uncertainty of scheduled release dates, and the lack of access to timely information, INS officials usually must wait until the alien has been released into INS custody before they can request travel documents. This invariably results in the need to detain the criminal alien while waiting for the travel document request to be processed. A precise date, provided with sufficient lead-time, would significantly reduce the need for additional detention in INS custody. Again, the millions of dollars in SCAAP grants provides an opportunity for creating a more efficient IRP process by requiring greater cooperation on the part of grant recipients.
Clearly beyond the INS's control is the issue of countries that through design or incompetence delay the issuance of travel documents. In our sample, we noted 19 cases involving delays by embassies or consulates to INS requests for travel documents, resulting in $342,517 in detention costs. INS officials stated that delays in the issuance of travel documents were common in Caribbean countries, such as Jamaica, Haiti, Guyana, and the Bahamas. Other countries identified as uncooperative in the timely issuance of travel documents included Ethiopia, Nigeria, India, and China.
Under Section 243(d) of the Immigration and Nationality Act, the Attorney General may request that the Secretary of State discontinue granting visas for countries that refuse to cooperate in the issuance of travel documents. The Department of Justice has had recent success in Guyana in obtaining the timely issuance of travel documents as a result of the provisions of Section 243(d). However, greater coordination and cooperation between the INS and the Department of State is needed to overcome the difficulties faced by the INS in dealing with foreign governments.
Currently, the INS has only informal liaisons with the Department of State concerning travel documents and other issues. INS officials have expressed an interest in establishing more formal relations with the Department of State. Specifically, INS and Department of State officials have discussed plans to detail INS personnel on a permanent basis to the Department of State in order to more effectively coordinate on immigration matters, such as, the timely removal of criminal aliens.
A total of $858,197, or 38 percent of the detention costs identified in our sample, were attributed to long-term detention costs incurred to detain criminal aliens from countries that refuse to take back their citizens. The United States currently has no formal arrangements with the governments of Cambodia, Cuba, Laos, and Vietnam concerning the repatriation of citizens convicted of criminal acts in the United States. The INS has had to detain indefinitely criminal aliens from these countries released into its custody. As shown in the graph below, criminal aliens from these four countries comprise just over 20 percent of the total criminal aliens in INS custody. Long-term detention for these criminal aliens is counted in years, rather than days, with some detainees going back to the early 1980's. The cost of detaining criminal aliens from these countries alone runs into millions of dollars annually.
Source: DACs runs (July and October 2001)
While a recent Supreme Court decision16 has alleviated, to some extent, the INS's long-term detention problem, the decision is hardly a solution, as these deportable criminal aliens are now being released into the community. The Attorney General has expressed an interest in bringing diplomatic pressure to bear on countries (such as the aforementioned) that refuse to accept deportation of their citizens after they are convicted of crimes in the United States. For its part the INS needs to better track and report on the impact of non-repatriation in terms of resources expended with regard to long-term detention, and in terms of public safety with regard to recidivist crimes committed by long-term criminal detainees released from INS custody as a result of the Supreme Court ruling.
Based on our review of only 151 criminal alien A-files, we identified $2.3 million in IRP-related detention costs which included $1.1 million attributed to factors within the INS's direct control and $1.2 million to factors beyond their control. While we are unable to statistically project the results of our judgmental sample, total IRP-related detention costs could run staggeringly high, as much as $200 million annually, given that the average daily population for criminal aliens held in INS custody was over 10,000 in FY 2001, and that the INS indicated that the overwhelming majority of these criminal aliens were federal, state, or local inmates that were released into INS custody for removal. An effective IRP, under ideal conditions, would preclude the need for detention of criminal aliens released into INS custody. Conversely, an ineffective IRP creates the need for additional detention space and consumes resources that could be put to better use. The obstacles blocking the path to a fully unfettered IRP process are myriad, involving factors both within and beyond the INS's direct control. They include the failure on the part of the INS to properly train and supervise individuals performing IRP activities to ensure that the work is competent, consistent, and completed in a timely manner, and coordinate with state and local agencies, as well as federal agencies, such as the Department of State, to streamline the IRP process to the extent possible.
We recommend that the INS Commissioner: