The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders
Report Number I-2003-004
THE INS'S EFFECTIVENESS AT REMOVING ALIENS WITH FINAL ORDERS
The INS Remains Effective at Removing Detained Aliens
Our 1996 report and a 1998 GAO report examined the INS's removal of detained aliens with final orders. The reviews found that the INS removed 94 and 92 percent of detained aliens, respectively. As these results demonstrate, detention enables the INS to remove most detained aliens with final orders.
In this review, we found that the INS increased the number of aliens that it detained during the last seven years. The INS reported that the average daily detention population increased substantially from 5,532 in FY 1994 to 19,533 in FY 2001. The INS's numbers of formal removals for all aliens increased as well, from 45,165 in 1994 to 107,254 (66,827 of whom were detained) in 2001.
In order to determine if the high rate of removing detained aliens reported in past reviews remained valid, we selected a nominal sample of 50 cases of detained aliens issued final orders in the period we reviewed. The results of our sample mirror the results of previous OIG and GAO reviews. We found that the INS removed 92 percent (46 of 50) of the detained aliens from the United States. Of the four aliens that were not removed, two are serving 10-year prison terms. Information on the other two aliens was not available in their DACS files. Based on the consistency of our sample results with prior reports, we concluded that the INS remains effective at removing detained aliens, and further sampling or review of detainee removals was not warranted.
The INS Remains Ineffective at Removing Nondetained Aliens
In dramatic contrast to the detained removal rate, the INS removed only 13 percent of nondetained aliens with final removal orders. We found it alarming that the INS was even less effective at removing nondetained aliens from countries that sponsor terrorism, removing only 6 percent of those given final removal orders. For nondetained criminal aliens, the INS removed 35 percent of the cases in our sample. While that is a higher percentage than other nondetained categories, it is significantly lower than the rate at which the INS removes detained aliens. For denied asylum seekers, the INS removed only 3 percent of those given final removal orders.
The INS Removed Only 13 Percent of Nondetained Aliens with Final Orders
Of the 308 cases of nondetained aliens in our sample, the INS removed only 40 (13 percent).21 While this is a marginal increase over the 11 percent removal rate for nondetained aliens found in our 1996 review, the INS's effectiveness at removing nondetained aliens remains extremely low (Chart 2).
OIG Analysis of EOIR and DACS data.
When aliens fail to appear for their removal proceedings, the Immigration Judge can order them removed in absentia or administratively close their case.22 We examined the in absentia rate within our sample of 308 nondetained cases and found that 204 (66 percent) of the aliens failed to appear for their removal proceedings and were ordered removed in absentia. We examined the correlation between removals and court attendance and found that the aliens' failure to appear before the Immigration Judge at removal proceedings is a significant and strong negative indicator for the likelihood of removal by the INS. Of the 204 aliens ordered removed in absentia, only 14 had been removed, a removal rate of 7 percent. In contrast, 26 of the 103 aliens who attended the hearing where they received their removal order had been removed, a rate of 25 percent.
The INS Removed Only 6 percent of Nondetained Aliens from Countries that Sponsor Terrorism
Since 1995, the U.S. Department of State has identified countries that are state sponsors of terrorism. As of 2001, the seven countries designated as sponsors of terrorism were: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. During the period we reviewed, the EOIR issued final removal orders to 2,334 aliens from these countries, or about 2 percent of the total number of aliens issued final orders in our sample period (Table 2).
Aliens From Countries That Sponsor Terrorism
Who Were Ordered Removed
October 1, 2000 through December 31, 2001
|5. North Korea||27||1.2%||1||26|
|Source: OIG analysis of EOIR data|
* Does not add to 100 percent due to rounding.
We reviewed the rate at which the INS removed aliens from these countries to determine whether the INS had effectively addressed these high-risk cases. In our judgmental sample of 470 nondetained aliens with final removal orders, we found that only 30 of the 470 nondetained aliens from countries identified as sponsors of terrorism had been removed - a rate of only 6 percent (Table 3).
|Table 3 |
Removal of Nondetained Aliens From Countries
That Sponsor Terrorism
October 1, 2000 through December 31, 2001
|5. North Korea||14||3||21%|
|Source: OIG analysis of EOIR and DACS data.|
Two important factors affected the removal rate in our sample of nondetained aliens from countries that sponsor terrorism. First, over 35 percent came from Cuba, which has no formal diplomatic relations with the United States. It is difficult for the INS to obtain travel documents for aliens from nations that have poor or no diplomatic relations with the United States. Second, 14 percent came from the Sudan. Some Sudanese aliens may be eligible for Temporary Protected Status (TPS). Aliens eligible for TPS are exempt from removal while in a protected status (Appendix A). However, we found that only 5 of the 67 (7 percent) Sudanese aliens in our sample either applied or were granted TPS.
Although some Sudanese nationals may be eligible for TPS, the Sudan remains a high-risk country. Al Qaeda located its headquarters in the Sudan from 1991 until 1996, and the FBI reported that al Qaeda provided military and intelligence training in the Sudan.23 Sudanese nationals have been involved in terrorist activity in the United States. In 1995, five Sudanese nationals were convicted of seditious conspiracy, bombing conspiracy, and attempted bombing.24 Finally, the Sudan remains on the U.S. Department of State's list of countries known to sponsor terrorism. Consequently, Sudanese aliens with final orders should not be overlooked solely because of their potential eligibility for TPS.
The INS Removed Only 35 Percent of Nondetained Criminals
Because the INS established the removal of criminals as its first priority in its Interior Enforcement Strategy, we examined its success at removing nondetained criminal aliens. Within our sample of 308 nondetained aliens with removal orders, we found 20 cases where the alien was charged as a criminal before the EOIR. Of those 20, the INS removed 7 (35 percent). While 35 percent is better than the 13 percent overall removal rate for nondetained aliens, it nonetheless reflects a low removal rate for potentially dangerous aliens. This suggests that the INS is ineffective in removing nondetained aliens even when the aliens are criminals.
The INS Removed Only 3 Percent of Nondetained Asylum Seekers
Finally, we reviewed the effectiveness of the INS at removing nondetained aliens who applied for asylum but were denied and ordered removed. We found that this group was removed at the lowest rate of any subgroup we examined. In our sample of 308 cases, we found that only 3 percent (3 of 86) of the nondetained denied asylum seekers with final orders were removed. In comparison, the INS removed 17 percent (37 of 222) of the nondetained aliens who did not apply for asylum. We also found a 3 percent removal rate for nondetained asylum seekers from countries that sponsor terrorism. Of the 470 nondetained aliens from states that sponsor terrorism, 259 had requested asylum and been denied, and the INS removed only 9. The INS confirmed that it places a low priority on executing removal orders on aliens who are denied asylum.
Although we are not suggesting that all asylum applicants are potential terrorists, we found several asylum applicants who had committed or planned terrorist acts in the United States while they were awaiting their asylum determinations (see Table 4, next page).
Because the apprehension and removal of aliens denied asylum and ordered removed is a low priority with the INS, had these individuals completed the asylum application process and been given final removal orders, it is unlikely the INS would have carried them out. Therefore, it is possible for high-risk aliens who would not otherwise be able to enter or reside in the United States to exploit this weakness. The INS should not overlook asylum seekers when pursuing nondetained aliens with final removal orders.
We recommend that the INS:
Terrorists Who Applied for Asylum
Ahmad Ajjaj and Ramzi Yousef - These individuals entered the United States seeking asylum in 1991 and 1992, respectively. In 1993, they helped commit the first World Trade Center bombing which killed six people. Ajjaj left the country and returned in 1992 with a fraudulent passport. He was convicted of passport fraud and did not complete the asylum process prior to his conviction. Yousef completed the required INS paperwork and was given a date and time for his asylum hearing; however, his application was pending when the World Trade Center was bombed.
Sheik Umar Abd ar-Rahman - Abd ar-Rahman sought asylum to avoid being deported to Egypt. He helped plan a "day of terror" for June 1993 in which New York City landmarks such as the United Nations' building, the FBI's Headquarters in lower Manhattan, and the Lincoln and Holland Tunnels were to be bombed.
Hesham Mohamed Hadayet - Hadayet applied for asylum in 1992, telling the INS that Egyptian authorities falsely accused and arrested him for being a member of the Islamic Group Gama'a al-Islamiyya, which is on the U.S. Department of State's Foreign Terrorist Organizations list. The INS denied his asylum request and Hadayet was placed in removal proceedings. After Hadayet did not receive the notice of his immigration hearing date due to an incorrect mailing address, the EOIR terminated the proceeding. On July 4, 2002, Hadayet shot and killed two people at the Los Angeles airport before he was killed by an El Al Airlines security guard.
Mir Aimal Kansi - Kansi entered the United States in 1991 and applied for political asylum in 1992. The INS Asylum office did not interview him or schedule an immigration court date since his application was in the pending backlog. On January 25, 1993, Kansi murdered two and wounded two CIA employees.
Gazi Ibrahim Abu Mezer - The INS voluntary returned Mezer to Canada after he was apprehended twice in June 1996. After Mezer's third apprehension in January 1997, the INS began formal removal proceedings because Canada refused to accept him a third time. In April 1997, Mezer filed for asylum, in which he claimed that he suffered a fear of persecution if he returned to Israel. In June 1997, Mezer withdrew his application and told his attorney that he had returned to Canada. Subsequently, Mezer was convicted and sentenced to life in prison for planning to bomb the New York City subway system.
THE INS'S INCOMPLETE IMPLEMENTATION OF THE 1996 CORRECTIVE ACTIONS
In 1996, we made five recommendations to improve the INS's effectiveness at apprehending and removing nondetained aliens. The INS agreed with our findings, but proposed to take alternative actions to correct several of the deficiencies we found. The INS subsequently provided evidence to support the completion of its planned actions. See Appendix B for a detailed discussion of our recommendations and the INS's proposed 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 several of the corrective actions. For example:
In FY 2002, the INS was appropriated funding for a supervised release program, and, as of January 2003, was still drafting a Request for Proposals for the program. The proposed target groups for the planned supervised released program were asylum applicants, non-criminals, Legal Permanent Residents, and aliens on an Order of Supervision. However, there are other categories of aliens presenting elevated national security concerns who could be targeted for this program, such as aliens from the countries for which the Attorney General established enhanced registration requirements.27 Also, the planned target groups include non-criminals, but not criminals, who may pose a higher risk. Expanding or revising the target groups could enhance the potential for this program to contribute to public safety and national security.
Only after September 11, 2001, did the INS implement several actions that it had originally agreed to take in response to our 1996 report. These actions included reissuing its proposed rule on the duty to surrender, establishing fugitive operations teams, and creating a new program to enter all alien absconders into the NCIC. These three actions are described below:
In addition to the INS's failure to implement corrective actions in a timely manner, we also found that the INS's policy on closing cases for aliens who fail to appear remains problematic. In our 1996 evaluation we found that the INS's District Offices did not actively pursue nondetained aliens with final removal orders who failed to appear, and that, pursuant to a 1982 policy memorandum, the INS was closing inactive cases in several categories. We also found that the INS was not tracking these policy-closed cases, thus, it was unlikely that the final order would ever be executed. The INS did not concur with the OIG's recommendation to update the policy because it asserted that, after extended periods of time, cases with no leads were unlikely to result in an apprehension and could be reopened if necessary.
In our current review, we found that the INS is improperly closing case files. The INS policy-closed 21 (7 percent) of the cases in our sample of 308 nondetained aliens, and 24 (5 percent) of the cases in our sample of 470 nondetained aliens from state sponsors of terrorism. None of the 45 cases met the criteria for policy-closure defined in the 1982 memorandum.29 The INS informed us that it is now drafting a revised policy, but was unable to provide us with a copy of this draft. The INS's failure to define and implement guidelines on policy-closures allows INS districts to improperly close cases of nondetained aliens with final removal orders.
We found this is particularly a problem in one INS district. For example, we found that the Los Angeles District accounted for 35 (78 percent) of the 45 policy-closures in our combined samples. Twenty-one (60 percent) of the cases that the Los Angeles District closed were cases of aliens from state sponsors of terrorism while almost all of the remaining 14 aliens (40 percent) were from South America. Moreover, in 9 (26 percent) of the Los Angeles cases the aliens appeared for the hearings when their final orders were issued. The aliens' receipt of their hearing notices indicates the INS was aware of the aliens' whereabouts and had contacted them. The INS guidance on policy-closure does not allow cases to be closed for one to five years after the last contact. However, the INS policy-closed these cases rather than apprehending and removing the aliens, or waiting the required period.
The INS's substantial failure to complete the actions it agreed to take in response to our 1996 recommendations, or to otherwise correct the deficiencies we reported, hindered the INS from significantly improving its effectiveness at removing nondetained aliens with final orders.
We recommend that the INS:
RESOURCE, DATA, AND TRAVEL DOCUMENT PROBLEMS CONTINUE TO HAMPER THE INS'S REMOVAL EFFORTS
The INS allocates insufficient resources to non-criminal absconder cases. Because the INS's resources are limited, it must focus its efforts on the greatest threats to the American public. The INS's priorities for removing illegal aliens are detained criminal aliens, followed by nondetained criminals, and lastly nondetained non-criminals. During interviews, D&R management officials confirmed that D&R officers focus on the highest priority cases within their assigned workload. Although INS District offices vary in their methods for assigning cases to D&R officers, most officers are assigned all types of cases. Because D&R officers' efforts are focused on the highest priority, criminal aliens, officers have limited time to pursue nondetained absconders who are not criminals.
Although we do not question that criminal aliens deserve INS's attention, non-criminal absconders also may pose a security threat. The lack of resources dedicated to pursuing this group is reflected in the low removal rate we found in this review.
Incomplete and inaccurate data, especially alien addresses, limits INS's ability to pursue absconders. Effectively processing the millions of legal and illegal immigrants in the United States requires an extensive information system to track and manage each case. We have noted in a number of our reports that the INS has serious and continuing problems with data reliability, which negatively impacts the INS's ability to process aliens. 30
Our 1996 report cited the lack of accurate address information for aliens as an obstacle to removal. During our current review, we found inconsistencies between EOIR's and INS's case tracking information for the aliens in our sample. We found name discrepancies, cases missing from the DACS, nationality discrepancies, and case file number discrepancies in 7 percent of our sample of 308 case files on aliens with final orders, and 11 percent of our sample of 470 aliens from states that sponsor terrorism.
In 2001, the INS's Office of Internal Audit reported that the INS lacked written standards to ensure the quality of the DACS data.31 Our interviews also show that the INS continues to face significant data problems. The INS statistician we interviewed estimated that 20 percent of the total cases in the INS and EOIR systems do not contain matching data, and 195,000 files that are in the EOIR's system are not in the INS's system. The INS Office of Internal Audit reported internal controls were not in place to reconcile and correct data errors or ensure the integrity and timeliness of data entry.
A recent GAO report also confirmed that data problems continue because the lack of reliable address information prevented the INS from finding 45 percent (1,851 of 4,112) of nonimmigrant aliens with potential awareness of foreign terrorists or their organizations.32 Without accurate addresses, it is difficult for the INS to apprehend and remove aliens once they are ordered removed.
The INS can implement more practical means to find and remove absconders. We believe the INS can be more resourceful in its practices to identify absconders. Specifically, we found that the INS does not make the best use of the Internet to inform the public of absconders, or to provide an effective method for the public to report information on absconders to the INS. For example, starting with the INS's home page (www.ins.usdoj.gov), finding directions for reporting violations of immigration law requires the user to select links and navigate through eight levels of information.
All reporting must be done to one of the INS field offices. We visited the web pages of nine INS District Offices (including California, Florida, New York, and Texas) and five INS Suboffices. Only 1 of the 14 pages we visited (Washington, D.C.) instructed the public how to report information on absconders or illegal activity through e-mail. The remaining 13 required the information to be submitted by mail, telephone (no toll-free numbers), or in person. Further, we examined the INS's website and found there is no posting of information about aliens who have outstanding removal orders (such as the listings of convicted sex offenders, or parents who owe child support); and no list of high-risk fugitives (such as the FBI's most wanted list). In fact, entering "absconder" into the INS search engine only returns six links to Congressional testimonies.
The INS faces difficulty obtaining travel documents from some countries. For certain countries, there are significant barriers beyond the INS's control that prevent the INS from obtaining travel documents for aliens. Some countries do not promptly process travel documents, while others impose restrictions on return of their citizens. Without proper travel documents, the INS cannot execute removal orders.
In September 2002, the OIG's audit of the INS's Institutional Removal Program reported 19 cases of delays by embassies or consulates to INS's requests for travel documents.33 The audit report listed several countries (including Jamaica, Haiti, Guyana, the Bahamas, Ethiopia, Nigeria, India, and China) that the INS identified as uncooperative or that frequently delayed travel documents. During interviews, D&R officials stated they also had problems obtaining travel documents for aliens from Yemen, Laos, Vietnam, and Cambodia, as well as difficulty in removing Cuban nationals.
We recommend that the INS:
As the INS prepares to move into the Department of Homeland Security, it faces a significant challenge in determining how to address long-term 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, 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. Neglecting to pursue these types of aliens is imprudent because we found examples of aliens in both groups who have committed terrorist acts in the United States. 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. While that is higher than the 13 percent overall removal rate for nondetained aliens, it still falls far short of the 92 percent removal rate that the INS achieved for detainees.
In examining the reasons for the INS's inability to improve its performance, we found that the INS did not implement the actions it agreed to take in response to our 1996 report in a complete or timely manner. In several instances, the INS acted to pursue absconders only in the aftermath of the September 11, 2001, terrorist attacks. In other cases, the INS was unable to document how it used funding provided by Congress to improve the removal of aliens, and could not provide any information on pilot programs that it had previously told us were being implemented. In addition to its failure to take corrective actions, we found the INS faces continued resource allocation issues and data problems, as well as external constraints. We also found that the INS does not effectively use all means at its disposal to improve its performance at removing aliens.
In summary, the INS has failed to correct the deficiencies we reported in 1996. The continued low removal rate for nondetained aliens demonstrates that the agency has not acted to effectively increase its performance in this critical area.