The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders

Report Number I-2003-004
February 2003

Each year, millions of aliens attempt to enter the United States without proper documentation, or enter legally but overstay or violate their visas. In March 1996, we reported that the Immigration and Naturalization Service (INS) was effective at removing detained aliens given final removal orders by the Executive Office for Immigration Review (EOIR).1 We found that the INS removed almost 94 percent of these individuals. However, we also found that the INS was ineffective at apprehending and removing nondetained aliens.² The INS removed only 11 percent of our sample of nondetained aliens ordered to leave the country. Our March 1996 review contained five recommendations to improve the INS's effectiveness at apprehending and removing nondetained aliens.

We conducted this current review to determine whether the INS had improved its effectiveness at removing nondetained aliens with final orders, and whether the INS actually implemented the actions it had agreed to take in response to the five recommendations in our 1996 report. We found that, since our 1996 report, the INS maintained its effectiveness at removing detained aliens. However, the INS continues to be largely unsuccessful at removing aliens who are not detained, removing only 13 percent of nondetained aliens with final removal orders.

Moreover, we examined three important subgroups of nondetained aliens and found that the INS was also ineffective at removing potential high-risk groups of nondetained aliens. The subgroups we examined were aliens:

• from countries that the U.S. Department of State identified as sponsors of terrorism - only 6 percent removed,

• with criminal records - only 35 percent removed, and

• who were denied asylum - only 3 percent removed.

We also reviewed the INS's implementation of the corrective actions it agreed to take in response to our 1996 report, and we found that it failed to take or complete corrective actions in a timely manner. In several instances, the INS acted to implement our recommendations only after the September 11, 2001, terrorist attacks, although it had agreed to act much sooner.

Results in Brief

The INS remains effective at removing detained aliens. Both our 1996 report and a 1998 U.S. General Accounting Office (GAO) report examined the INS's removal of detained aliens with final orders, and these reports found that the INS removed 94 and 92 percent of detained aliens, respectively.³ Given the strong results reported in both reviews, we selected a nominal sample of 50 cases of detained aliens ordered removed from October 1, 2000 through December 31, 2001, and found that the INS removed 92 percent (46 of 50). We also noted that the INS has increased the number of aliens that it detains. We concluded that the INS continues to effectively remove detained aliens.

The INS remains ineffective at removing nondetained aliens. To evaluate the INS's effectiveness at removing nondetained aliens with final orders, we analyzed a statistically valid random sample of 308 nondetained aliens who received final removal orders from October 1, 2000 through December 31, 2001. All of the aliens in our sample had exhausted or waived all appeals, and could therefore have been removed by the INS. We found that the INS removed only 13 percent (40 of 308) of the nondetained aliens, which represents a marginal increase from the 11 percent removal rate we reported in 1996.

We also examined three important subgroups of nondetained aliens. The subgroups were aliens from countries identified by the U.S. Department of State as sponsors of terrorism, criminal aliens, and aliens who were denied asylum.

• We found that the INS is even less successful at removing nondetained aliens from countries identified by the U.S. Department of State as state sponsors of terrorism. In 2001, seven countries received this designation: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. During the period we reviewed, 2,334 aliens from these countries were ordered removed. Of those aliens, 894 were nondetained. We examined a sample of 470 of the nondetained cases and found that the INS removed only 6 percent.

• We found that although the INS established the removal of criminal aliens as its first priority, it removed only 35 percent of the nondetained criminals in our sample. The INS removed 7 of the 20 criminals in our sample of 308 nondetained aliens.

• We found that the INS removed only 3 percent of the nondetained asylum seekers with final removal orders. The low removal rate for asylum seekers is a concern because this group may include potential terrorists who threaten our national security. We found that several individuals convicted of terrorist acts in the United States requested asylum as a part of their efforts to stay in the country. In our sample of 308 cases, 86 of the aliens applied for asylum but were denied. When we examined that subgroup, we found that the INS removed only 3 of the 86 (3 percent). That is a much lower removal rate than for nondetained aliens who did not seek asylum. The INS removed 37 of 222 (17 percent) of the nondetained aliens who did not seek asylum.

The INS acknowledged to us that it places a low priority on removing nondetained denied asylum seekers with final orders. We are concerned that the INS does not actively pursue denied asylum seekers. Because that group may include potential terrorists, it would be imprudent to give them so little attention.

The INS failed to implement corrective actions. An important reason why the INS failed to improve its removal of nondetained aliens was that the INS did not implement the actions it agreed to take in response to our 1996 report in a complete or timely manner (see Appendix B). In response to our report, the INS identified specific actions it would implement and provided evidence to support the planned actions. We accepted the INS's proposed corrective actions as responsive to our recommendations. However, our current review found that the INS did not follow through on the corrective actions. For example:

• The INS agreed to improve its methods of notifying aliens of their duty to surrender for removal. Although the INS published a proposed rule, it did not consider the rulemaking a priority and allowed it to lapse.⁴ After the attacks of September 11, 2001, the INS revived and expanded the rulemaking, now titled Requiring Aliens Ordered Removed from the United States to Surrender to the Immigration and Naturalization Service for Removal.⁵ As of January 2003, the rule still was not final.

• The INS agreed to conduct field tests to target for removal all aliens with final orders and informed us that a limited duration pilot project conducted at the Philadelphia field office had positive results. Based on those results, the INS told us that it was considering conducting tests at two additional field sites. However, the INS was neither able to provide any information regarding these pilot projects at any of the three locations, nor able to locate anyone who could remember the projects.

• The INS contracted with the Vera Institute of Justice to conduct a demonstration project to examine whether a supervised release program could improve court appearance rates for asylum seekers, criminal aliens, and undocumented workers.⁶ The final project report was issued on August 1, 2000, but as of December 2002, the INS had not acted on it or implemented any alternative actions to improve the removal rates for nondetained aliens.

• The INS agreed to use an FY 1996 budget enhancement of $11.2 million to fund 142 positions to remove alien absconders.⁷ It also agreed to use the INS's Law Enforcement Support Center to enter alien absconder information into the National Crime Information Center (NCIC) and develop an automated list of criminal absconders for the law enforcement community. However, the INS did not establish absconder removal teams or develop an automated list of absconders until after September 11, 2001. Moreover, the INS was unable to document how it used the $11.2 million.

The INS still faces the same problems we reported in 1996. Several problems cited in our previous review still exist. Specifically, the INS continues to: dedicate insufficient resources to removing nondetained aliens, work with incomplete and inaccurate data in its electronic database, and face external barriers to removing illegal aliens. We saw one example of the effect of insufficient resources in the Absconder Apprehension Initiative directed by the Deputy Attorney General in January 2002. As of June 2002, the INS had not received the funding requested to permanently assign staff to this important project. Because of the lack of dedicated resources, the INS estimated it would take until 2005 or 2006 to enter into the NCIC the case files of aliens with unexecuted final orders issued before January 2002.

We also noted that the INS dedicated most of its effort toward removing criminal aliens. Although we do not question the need to remove criminal aliens, the result of INS's current approach is that little effort is directed at the large number of non-criminal absconders who may also pose a threat to the United States. The lack of resources allocated to pursuing nondetained aliens is reflected in the low removal rate that we found in this review.

Our 1996 report also cited the lack of accurate address information for aliens as an obstacle to their removal. Our interviews and recent reports prepared by GAO and the INS Office of Internal Audit confirm that the INS continues to face significant data accuracy problems. During this review, we compared data from the INS's and EOIR's alien case tracking and management systems and found name, nationality, and case file number discrepancies, as well as cases missing from the electronic files. The discrepancies occurred in 7 percent of the 308 case files of aliens with final orders, and 11 percent of the sample of 470 aliens from state sponsors of terrorism. According to the INS, data discrepancies are caused by data entry errors, incompatibilities between the systems, and the lack of a system for correcting data inconsistencies.

In addition, the INS is improperly using its policy-closure provisions to close cases of aliens who fail to appear for their removal hearing. We found that the INS is still using the 1982 policy memorandum cited in our 1996 report to identify cases for policy-closure. However, we found that the INS is not adhering to the direction for policy-closure identified in the 1982 policy memorandum. Once a case is policy-closed, the INS district office no longer tracks the case or actively pursues the alien.

There are also significant external barriers beyond the INS's control that can prevent the INS from carrying out removal orders. Executing removal orders depends on the receiving countries accepting the return of their citizens and issuing travel documents to accomplish the transfer. These countries may not promptly process documents related to the removal, may impose travel restrictions, or may refuse to accept the aliens.

Conclusion and Recommendations

As the INS prepares to move into the Department of Homeland Security, it faces a significant challenge in determining how to address long-standing deficiencies in its ability to apprehend and remove nondetained aliens ordered removed from the United States. In 1996, we reported that the INS was ineffective at removing nondetained aliens with final orders from the United States, removing only 11 percent of the aliens. This review documented that the INS remains fundamentally ineffectual at meeting this challenge.

Our review found that the INS has not improved its performance and still removes only 13 percent of nondetained aliens with final orders. More importantly, we found that the INS was even less effective at removing some high-risk subgroups. The INS executed removal orders on only 6 percent of the nondetained aliens from countries that the U.S. Department of State has identified as sponsors of terrorism, and only 3 percent of denied asylum seekers. Although the INS has established the removal of criminal aliens as its highest priority, we found that the INS removed only 35 percent of nondetained criminals.

We are making eight recommendations for the INS to better focus its resources on prioritizing, apprehending, and removing nondetained aliens with final removal orders. We recommend that the INS:

1. Establish annual goals for apprehending and removing absconders and other nondetained aliens with final orders to achieve its strategic performance goal of removing 100 percent of aliens with final orders by 2012. ⁸

2. Identify the resources needed to achieve the above annual and strategic performance goals, and ensure that resources are applied to all case types.

3. Ensure that resources provided for apprehending and removing alien absconders are tracked so that they are used only as intended.

4. Complete the current rulemaking entitled Requiring Aliens Ordered Removed from the United States to Surrender to the Immigration and Naturalization Service for Removal.

5. Update the policy, establish stronger controls, and provide guidance to ensure that policy-closure provisions are used only when appropriate.

6. Establish a program to correct the problems with missing and inaccurate data in the Deportable Aliens Control System and work with the EOIR to reconcile discrepancies between the INS and the EOIR data systems.

7. Implement a shared data system, similar to the Interagency Border Inspections System,⁹ for case tracking with the EOIR to identify and process aliens with final orders.

8. Improve the utility of the INS's website for informing the public about high-risk absconders and facilitate the reporting of leads on absconders.

1. U.S. Department of Justice (DOJ), Office of the Inspector General, Immigration and Naturalization Service's Deportation of Aliens After Final Orders Have Been Issued (Report No. I-96-03), March 1996.

2. Nondetained includes aliens who were never detained or who were detained but subsequently released.

3. U.S. General Accounting Office (GAO), Criminal Aliens - INS's Efforts to Remove Imprisoned Aliens Continue to Need Improvement (Report No. GGD - 99 - 03), October 16, 1998, p. 11. In our 1996 evaluation, we found that the INS did not remove 100 percent of the detained aliens because of its inability to obtain travel documents, humanitarian and political limitations on removal, and outstanding criminal charges.

4. Federal Register, September 4, 1998, Volume 63, p. 47205.

5. Federal Register, May 9, 2002, Volume 67, p. 31157.

6. The Vera Institute of Justice is a private nonprofit organization that conducts original research and provides technical support for the design and implementation of programs to improve the provision of justice and the quality of urban life.

7. The INS defines absconders as aliens with unexecuted final orders of removal and whose whereabouts are unknown. Most absconders are nondetained aliens.

8. U.S. Department of Justice, FY 2001 Performance Plan/FY 2002 Revised Final Performance Report/FY 2003 Performance Plan, Section 5.

9. The Interagency Border Inspections System is an interagency effort by the INS, U.S. Customs Service, Department of State, and Department of Agriculture to improve border enforcement and controls and to facilitate the inspections of applicants for admission to the United States.