The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders
Report Number I-2003-004
Each year, millions of aliens attempt to enter the United States without proper documentation, or enter legally but overstay or violate their visas. Many of these aliens subsequently leave - from FY 1996 through FY 2000, more than 7.8 million aliens departed voluntarily. However, many illegal aliens remain in the country who could be removed under United States immigration laws. According to the United States Census Bureau's 2000 data, there were more than 8 million illegal aliens living in the United States.
The INS serves a dual role in which it both enforces United States immigration laws and provides immigration benefits and services. Two major INS programs carry out the enforcement role. The border enforcement program is responsible for preventing unauthorized aliens from entering the country, while the interior enforcement program apprehends, processes, and removes illegal aliens from the United States.
The task of identifying and removing illegal aliens from the United States can involve other agencies. Aliens may be apprehended by officers in the INS's Investigations, Inspections, or Border Patrol offices; by staff of the Detention and Removal (D&R) office; or, they may be detained by state or local law enforcement officers. Other federal agencies that are frequently involved in identifying, apprehending, or detaining aliens include the Federal Bureau of Investigation (FBI), the United States Marshals Service (USMS), the Federal Bureau of Prisons (BOP), and the Department of Labor. Once illegal aliens are apprehended, it is the D&R's responsibility to process them through the system that determines whether they can stay or whether they will be removed. Appendix A contains a detailed illustration and discussion of this process. Over half (55 percent) of the 140,915 aliens who were issued final orders by the EOIR from October 1, 2000 through December 31, 2001 were detained (see Chart 1).
The INS works with the EOIR to conduct the hearing process for determining whether aliens should be removed. The INS charges aliens with removal from the United States and begins proceedings by filing a charging document with the EOIR. The EOIR, a component of the Department of Justice that is separate and apart from the INS, is comprised of the Office of the Chief Immigration Judge, the Board of Immigration Appeals (BIA), and the Office of the Chief Administrative Hearing Officer. The EOIR is responsible for adjudicating immigration cases at both the trial level, before Immigration Judges and the appellate level, before the BIA. The United States federal courts have jurisdiction over certain decisions appealed from the BIA.
Source: OIG analysis of EOIR data.
Historical Trend of INS Removals
Over the last 5 years, the INS formally removed an average of 97,338 aliens per year (Table 1).
FY 1997 Through FY 2001
|Source: 2001 Statistical Yearbook of INS, p. 235.
a Includes removals executed through orders of deportation, exclusion, and removal. Excludes expedited removals as well as confirmed voluntary departures.
However, many aliens ordered to leave do not comply with their removal orders. As of June 2002, the INS estimated that there were about 355,000 aliens with unexecuted removal orders.17
1996 OIG Evaluation Reported the INS Was Ineffective at Removing Nondetained Aliens
In March 1996, the OIG reported a large disparity between the removal rates of detained aliens compared to nondetained aliens with final removal orders. Through a review of 1,058 sample case files, we found that 94 percent of detained aliens, but only 11 percent of nondetained aliens, had left or been removed from the United States.
Due to the disparity between the number of detained and nondetained aliens removed, we made five recommendations to the INS to improve its processing of nondetained aliens, including:
The INS concurred with recommendations 1 and 5, and partially concurred with recommendations 2, 3, and 4. The INS proposed alternative actions to meet the intent of recommendations 2, 3, and 4, which we accepted. Between March 1997 and October 2000, the INS reported to the OIG that it had taken the actions it proposed for four of the recommendations. Consequently, we closed recommendations 1, 3, 4, and 5. As of January 2003, the INS had not provided final information on action related to recommendation 2, and that recommendation remains open. For this review, we assessed the INS's implementation of each of the corrective actions (see Appendix B for the detailed results of our assessment).
Changes in Immigration Law and Enforcement Since 1996
Since our 1996 review, a number of important events have affected how the INS apprehends and removes illegal aliens. These include a major revision of U.S. immigration laws by Congress in September 1996, a new INS interior enforcement strategy, a Supreme Court ruling that affects the INS's ability to detain aliens pending their removal, and several INS removal initiatives. Most recently, on November 25, 2002, the President signed into law the Homeland Security Act, which directs that the INS and its functions be moved from the Department of Justice into a new Department of Homeland Security (DHS) in March 2003. Each of these events is discussed briefly below:
Before releasing these aliens, the INS reviews the cases to identify those in which travel documents may be available, removal practicable and in the public interest, and those in which aliens may be violent, pose a risk to the community, or pose a risk for violating their release conditions or fleeing. From January 2001 through September 2002, the INS reviewed 1,710 cases and released 1,034 (60 percent) of the aliens.