INS HAS NO SPECIFIC OVERSTAY ENFORCEMENT PROGRAM
INS has no specific enforcement program to identify, locate, apprehend, and remove overstays. INS' approach is to locate and remove illegal aliens through its existing interior enforcement programs, regardless of their method of arrival. Currently INS focuses the majority of its interior enforcement resources on criminal aliens and worksite enforcement. These programs identify and remove illegal aliens, including some nonimmigrant overstays. While INS estimates that overstays comprise 41 percent of the illegal alien population, INS data shows that only 11 percent of the deportable aliens apprehended by INS investigators in FY 1996 were overstays.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the 1996 Act) requires development of an automated entry and exit control system that will collect a record of departure for aliens departing the United States and identify overstays through on-line searching procedures. This requirement is considerably broader than that contained in previous law. The 1996 Act also authorizes INS an increase of 300 investigators and support personnel to specifically investigate visa overstays. [ The positions have not been funded by Congress. ] A formal overstay enforcement program, as implied by the 1996 Act provisions, would entail using information from the automated entry and exit control system to identify and locate overstays. It would also require the ability to arrest, detain, and deport overstays. Each of these measures could require commitment of substantial additional resources, possibly not envisioned by Congress.
Identifying, Locating and Arresting Individual Overstays
NIIS is INS' only system that identifies individual overstays. INS faces two significant obstacles in using NIIS in an overstay enforcement capacity. First, if INS is to use NIIS as the primary vehicle for overstay identification, it must ensure that all departure records are received. As noted earlier, INS does not receive departure records for a significant number of aliens who it believes have actually departed the United States. INS believes that the great majority of individuals shown as apparent overstays in NIIS have already left the United States. Consequently, initiating investigations based on NIIS data would result in attempts to locate aliens no longer in the United States.
The second problem in using NIIS data in an overstay enforcement program is that NIIS is generally of little use for locating aliens. INS investigators with whom we spoke stated that Form I-94-generated leads are not useful for locating aliens because the INS officer inspecting the arriving aliens has no way of verifying the address listed on the Form I-94, and, even if the alien lists the genuine address on the Form I-94, the alien has several months in which to relocate. Further, in reviewing a number of Forms I-94, we noted that many of the addresses on the forms only show a hotel or geographic area.
A pilot program initiated by INS in 1979 and 1980 illustrated the difficulties in using Form I-94-generated leads. Investigators were sent to the destination addresses listed on the Forms I-94 of approximately 2,000 nonimmigrant visitors who apparently had failed to leave the United States. The program resulted in the apprehension of only one alien at the address listed on the Form I-94. This program produced so few tangible results because of the poor quality of Form I-94-generated leads and the likelihood that many of the 2,000 visitors had actually returned to their home countries.
Lack of Detention Capacity Severely Constrains Enforcement Effectiveness
Assuming that INS could successfully identify and apprehend overstays, the aliens would still have to be removed from the United States. We have previously reported that detention is a requisite for a successful deportation program. [ Deportation of Aliens After Final Orders Have Been Issued , OIG Inspection Report I-96-03, March 1996. ] Unless INS can detain them, few aliens are deported. The shortage of detention space and the requirements of the 1996 Act may significantly limit the number of overstays INS is able to detain. Without increased detention facilities, any increase in deportation of overstays would likely be at the expense of detaining and deporting other aliens.
The 1996 Act requires INS to detain virtually all criminal aliens when they are released from prison. In recognition of INS' limited detention capabilities, the 1996 Act provided for "Transition Period Custody Rules" if the Attorney General notified Congress within 10 days of enactment that there is insufficient detention space and personnel available to carry out INS' new detention responsibilities. On October 9, 1996, the INS Commissioner provided this notification, which by operation of law renders the 1996 Act mandatory detention provisions inoperative during a one-year transition period. The transition period may be extended for an additional year with a subsequent notification.
The Transition Period Custody Rules authorize release of criminal aliens who were lawfully admitted and do not pose a security or flight risk. However, the rules generally do not provide for release of aliens who have not been lawfully admitted (i.e., EWIs). Because overstays fall within the class of those lawfully admitted, overstays may be released to make detention space available for EWIs who must be detained. Because INS does not have data on the aggregate number of overstays in detention, we cannot estimate the number who might be released. We believe the release of overstays would make their deportation doubtful and frustrate any increased overstay enforcement efforts.
Any enforcement program that removes significant numbers of additional overstays would require a substantial resource commitment. A specific overstay enforcement program would require that INS identify overstays, then find, arrest, detain, and deport them. Failure to successfully implement any one of these elements would result in a failed program. Given the unreliability of address data, we believe that it would be extremely difficult for INS investigators to locate a significant number of overstays based on data from NIIS or any contemplated automated entry and exit control system. Given limited detention space, the number of criminal aliens to be detained, and the transition period custody rules, we do not believe that INS would be successful in deporting a significant number of overstays, even if its investigators could locate and arrest them.
INS Needs to Analyze Available Data and Develop an Overstay Enforcement Strategy
The magnitude of INS' estimate of the resident overstay population compels enforcement attention. An overstay population of 2.1 million, which is growing at 125,000 annually, requires an enforcement strategy. INS' interior enforcement programs have been unsuccessful in arresting and removing significant numbers of overstays. INS arrests and removes few overstays in absolute terms and disproportionately few in relation to INS' estimate of their presence in the resident illegal alien population.
INS has recognized the need to better target overstays in its worksite enforcement efforts. The Commissioner's Priority Implementation Plan for 1996 states that INS will work to achieve a balance in its worksite enforcement program by "including enforcement directed at overstays where analysis supports identified targets." Specific responsibility for the analysis necessary to support an overstay targeting approach was assigned to INS' Office of Policy and Planning (OPP). However, OPP has not performed the requisite analysis and INS has done little or nothing to target overstays.
If INS continues to use existing interior enforcement programs, such as worksite enforcement, as its primary means of attacking the overstay problem, then strategies must be developed within these programs to target overstays. These strategies will require reliable demographic data on overstays and thorough analysis of that data.
INS NEEDS MORE RELIABLE AND COMPLETE OVERSTAY DATA TO MEET ITS RESPONSIBILITIES
INS fails to make maximum use of available overstay data. INS receives and generates large amounts of overstay information from arrest records and benefits applications that are not put into a usable format. The Report of Field Operations does not contain, nor does INS produce, aggregate data on the number of overstays apprehended. INS' Deportable Alien Control System (DACS) also fails to report the total number of overstays put into deportation proceedings or deported. [ DACS only allows the entry of one deportation charge, when in fact more than one charge may be applicable. In most cases, the most serious charge is recorded in DACS. Consequently, an overstay deported as a criminal alien would not be identified in DACS as an overstay.]
INS completes a Form I-213, Record of Deportable Alien Located for each alien apprehended. Each record contains a wealth of information on the alien. Much of it is captured in compiling the Report of Field Operations, but important elements such as the status at arrest are not recorded in the aggregate. Consequently, INS does not know the aggregate number of overstays arrested. This information, when coupled with the other information already compiled from the Forms I-213, could provide valuable demographic data on the illegal alien population, including overstays.
Another potential source of information is the Form I-485, Application for Adjustment of Status. Each year INS receives almost 500,000 such applications and each application contains detailed information including the alien's place of birth, occupation, manner and date of entry, and status at entry. The information in these applications, like that in the Records of Deportable Aliens Located, could contribute greatly to INS' understanding of the illegal alien population and its overstay component.
We suggest that INS periodically compile overstay data routinely captured by its benefits and enforcement operations into a form that is retrievable and useful for policy-making. Such data could include the aggregate number of overstays who adjust status, and the numbers arrested and deported.
INS Needs to Provide the State Department With More Overstay Data to Better Screen Visa Applicants
Visas are issued by consular officers of the State Department's Visa Office. With certain exceptions, aliens wishing to visit the United States must apply for nonimmigrant visas at one of the more than 230 United States embassies or consulates worldwide. A nonimmigrant visa, together with a valid passport, permits an alien to enter the United States during a specified time period and for a specified length of stay. Before issuing a nonimmigrant visa, consular officers must be satisfied that the visa applicant does not intend to immigrate.
Although consular officers make decisions on individual cases and not on profiles, State Department officials said that information on overstays would assist them in evaluating visa applications. This information would allow them to identify those countries and visa classes with high overstay rates. While State Department officials believe that the current overall overstay rate (less than 2 percent as estimated by INS) shows that they do a good job, they stated they could better screen visa applicants if they had more overstay data.
INS is Unable to Perform its Responsibilities Under the Visa Waiver Pilot Program
The Visa Waiver Pilot Program (VWPP) permits persons from designated countries to enter the United States without having to obtain a visa. To be admitted to this program, a country must grant reciprocal privileges to United States citizens and have had a low visa refusal rate in the past. In FY 1995, over 10 million nonimmigrants, or about 45 percent of the nonimmigrant entries recorded in NIIS, entered under the VWPP.
Section 217 of the Immigration and Nationality Act requires that if a VWPP country's disqualification rate [ A country's disqualification rate is determined by adding the number of nationals of a country who were excluded from admission (or withdrew their application for admission) to the number of that country's nationals who were admitted as nonimmigrant visitors and violated the terms of their admission, and dividing this sum by the number of that country's nationals who applied for admission as nonimmigrant visitors. ] is greater than 2 percent but less than 3.5 percent, "the Attorney General shall place the program country in probationary status," and if a country's rate is 3.5 percent or more "the Attorney General shall terminate the country's designation as a pilot program country." The disqualification rate includes those nationals of a country who were admitted as nonimmigrant visitors and violated the terms of their admissions. Overstaying is just one type of violation of terms of admission, but it is the primary measure by which INS evaluates VWPP countries. Therefore, the Attorney General needs to know the overstay rate for each country in the VWPP in order to determine a country's eligibility for continued participation in the program.
In order to terminate a country's participation in the VWPP, the overstay information must be accurate, credible, and defensible. The VWPP involves reciprocal arrangements with other countries and is strongly supported by the travel and tourism industry and other domestic constituencies. Any attempt to terminate a country's participation in the program will incur opposition.
NIIS data has shown that some countries apparently exceeded the program disqualification rate. In 1993, there was an effort to begin termination proceedings against five VWPP countries. In 1996, INS stopped the termination process because its overstay estimates were too unreliable to be used as evidence. INS cannot initiate actions against these countries because it has not had reliable and credible overstay data since FY 1992. Since that time, INS has had no means of identifying noncompliant VWPP countries. It is important to note that INS' recently-released estimates of the illegal alien population cannot be used to monitor the VWPP. While INS made an estimate of the number of resident overstays in the United States, it could identify no reliable methodology to determine current overstay rates. Until NIIS begins producing credible and defensible overstay data, INS will be unable to perform its responsibilities under the VWPP.
Compliance With the 1996 Act Will Require System Improvements
The 1996 Act requires the Attorney General to develop, by September 30, 1998, an automated entry and exit control system that will collect a record of departure for every alien departing the United States and identify overstays through on-line searching procedures. Our discussions with INS officials indicate they are still in the process of determining exactly what the law will require and how INS can best comply. We believe that NIIS, as currently operating, will not meet the requirements of the 1996 Act because of the significant system error and the fact that it captures less than 10 percent of nonimmigrant entries.
The 1986 IRCA contained a provision similar to the entry and exit control requirement in the 1996 Act. IRCA required that the Attorney General, in cooperation with the Secretary of State, develop "an automated data arrival and departure control system to screen and monitor the arrival into and departure from the United States of nonimmigrant visitors receiving a visa waiver under the [visa waiver] pilot program." The 1996 Act requirement is considerably broader than the IRCA requirement. IRCA limited the control system to nonimmigrants receiving a visa waiver, while the 1996 Act language specifically requires collecting a record of departure for every alien departing the United States. [ Although the language of the 1996 Act says "every alien", Congress has notified Canadian officials that the language was not meant to include Canadian land border crossers. INS officials have not received an indication of whether it was intended to exclude immigrants or Mexican border crossers. INS has not decided whether to request a technical amendment to the Act.]
IRCA also provided that the VWPP could not be put into operation until the Attorney General certified to Congress that an automated data arrival and departure control system was operational and effective. In 1988, the then Attorney General certified that NIIS met these requirements. Although NIIS may have met these requirements in 1988, we do not believe the INS Commissioner could provide assurance today to the Attorney General that NIIS provides an effective automated data arrival and departure control system.
INS Can and Should Improve its Departure Data
The most obvious way to get better overstay data is to collect departure Forms I-94 from all nonimmigrants as they leave the country. House Report Number 104-196 contained a section that would have required INS to establish a pilot program at no less than three of the five largest air ports of entry at which INS officers would collect a departure record for aliens departing the United States. INS estimated that the proposed pilot program would cost $27 million if INS officers were placed at each departure gate, or $14 million if fully configured sterile areas were available at the three airports.
As an alternative, INS proposed to Congress a Departure Management Pilot Program (DMPP) instead of departure control. The stated goals of the DMPP were to develop more accurate and timely statistics and records on nonimmigrant overstays and to strengthen enforcement against overstays. The proposed DMPP relied on a three-pronged strategy: training of airline representatives to improve collection of Forms I-94, monitoring compliance through on-site observation of airline representatives and random spot checks of airlines' data collection, and enforcing fines against noncompliant airlines. INS proposed to conduct a pre-test of the pilot program at Logan Airport in Boston.
The provision requiring a departure control pilot program was deleted before passage of the 1996 Act and INS did not implement the proposed pre-test of the pilot program for departure management in Boston. INS now plans to incorporate the three-pronged departure management strategy into a pilot program of an automated system for the collection of arrival and departure data. This pilot program, which began in May 1997, will monitor the USAirways flight between the Philadelphia International Airport and Munich, Germany, for 120 days.
None of the three elements of departure management is dependent on an automated system. Furthermore, none requires a pilot program and all could have already been implemented.
· Training - INS has a Carrier Consultant Program responsible for training airline personnel. The training emphasizes identification of improper and fraudulent travel documents. The training also addresses collection of departure records, but does not give detailed guidance.
· Compliance checks - INS has the authority to monitor compliance through on-site observation and random spot checks. However, INS officials informed us that compliance checks are not being done.
· Fines - Although the Immigration and Nationality Act gives INS the authority to fine carriers that fail to collect and submit departure records, INS is not imposing the fines.
INS needs to improve its departure data, particularly the collection of departure Forms I-94. Given the longstanding failure to receive all departure records, INS should take immediate action to improve collection of these forms regardless of the status of the automation pilot program.
CONCLUSIONS AND RECOMMENDATIONS
Although INS estimates that 41 percent of the illegal alien population residing in the United States are overstays, INS does not have a specific overstay enforcement program, and only about 11 percent of the illegal aliens arrested by INS investigators are overstays.
An overstay information gap significantly hinders efforts to address the overstay issue. Closing this gap would assist Congress in making informed immigration policy. It would also allow INS to meet its VWPP responsibilities and develop new enforcement strategies that may more effectively address the overstay problem.
The overstay information gap has two causes, both of which are potentially remediable. First, problems and limitations within NIIS and INS' system of recording arrivals and departures severely limit information available on overstays. Second, INS uses little of the overstay data that is available to it from its benefits and enforcement programs. The information gap has the following deleterious effects:
· INS cannot adequately describe the characteristics of the overstay population residing in the United States, such as countries of origin, occupations, and worksites where overstays are employed.
· INS cannot identify individual overstays, nor determine what enforcement methods might be most effective against the overstay problem.
· INS cannot fully perform its responsibilities for monitoring the VWPP and providing the Department of State with critical information needed to screen visa applicants.
Using data from NIIS to develop leads to identify, locate and arrest individual overstays is unlikely to be effective. We believe that departure control would significantly improve INS' collection of departure records and, thereby be effective in identifying overstays. However, departure control would be burdensome to the traveling public and extremely costly, and probably not appreciably assist INS in locating and arresting overstays.
INS enforcement efforts can be classified as either border enforcement or interior enforcement. The majority of INS enforcement resources are concentrated on border enforcement. Recent increases in INS resources going to the Border Patrol have increased the disparity between border enforcement and interior enforcement. Border enforcement will have no effect on overstays; only interior enforcement can address the overstay problem. The amount of resources available for enforcement, and the ratio of resources allocated to the border and the interior will certainly have a significant effect on INS' ability to address the overstay problem.
INS' two interior enforcement program priorities, criminal aliens and worksite enforcement, encounter fewer overstays than EWIs. Some changes in enforcement strategy, within existing programs, may result in the arrest of more overstays. However, changes in strategy could conceivably result in fewer illegal aliens arrested and removed, because arresting and removing overstays may be more difficult and costly than arresting and removing EWIs. INS needs more complete and reliable overstay information in order to develop a much needed overstay enforcement strategy.
The Inspections Division recommends that the Commissioner, Immigration and Naturalization Service:
1. Improve the collection of departure records by working with carriers to promote compliance, actively monitoring carrier compliance and fining noncompliant carriers.
2. Implement a course of action that will ensure complete and reliable NIIS data. NIIS data must be sufficiently complete and reliable to meet the requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and to enable the Attorney General to fully perform her responsibilities under the VWPP.
3. Conduct an analysis of overstay data that will support the development of an overstay enforcement strategy.
4. Develop an interior enforcement strategy that effectively addresses the increasing overstay population.
OFFICE OF THE INSPECTOR GENERAL'S ANALYSIS OF MANAGEMENT'S RESPONSE
On June 30, 1997, the Inspections Division sent copies of the draft report to INS with a request for written comments. INS responded by memorandum from the Commissioner dated September 3, 1997 (APPENDIX I).
1. Recommendation 1 - Unresolved-Open.
INS concurred with our recommendation to improve the collection of departure records by working with carriers to promote compliance, actively monitoring carrier compliance and fining non-compliant carriers. INS' response to us states that a training module will be developed that addresses the carrier responsibilities for completing and submitting departure documents. However, INS does not commit to a comprehensive program for actively monitoring carrier compliance and fining non-compliant carriers.
Our recommendation on fining carriers took into consideration the INS Commissioner's May 8, 1996, memorandum "Report to Congress on Departure Management Pilot Program," which acknowledges fining airlines as part of an effective strategy. This memorandum, discussed in our report, was prepared in response to House Report Number 104-196 requiring INS to submit an implementation plan to collect departure records. INS' strategy, as contained in the Report to Congress, consisted of training, monitoring, and fining non-compliant carriers.
We recognize the inherent difficulties in fining airlines for failure to submit departure records; however, collection of departure records is essential to the operation of NIIS, and fining carriers when they are non-compliant is a powerful incentive for the carriers to account for departure records. We are prepared to resolve this recommendation when INS provides us a specific plan for initiating a comprehensive compliance program, including fining non-compliant carriers.
2. Recommendation 2 - Unresolved-Open.
INS concurred with our recommendation to implement a course of action that will ensure complete and reliable NIIS data. However, we do not believe that the actions discussed in the INS' response will correct NIIS' problems.
INS' response primarily discusses the NIIS Process Action Team (PAT), created to address NIIS problems. We have reviewed the PAT's Summary Report and concluded that much more needs to be done to correct the problems with NIIS than was done by PAT. PAT was a 5-week project that focused on problems that could be resolved within 6 months and that had a high probability of success.
The PAT Summary Report recognized that there were other major systemic problems concerning NIIS, that the "PAT had only begun to 'scratch the surface' of the NIIS issues," and recommended that the PAT be reorganized and expanded into a NIIS Operations and Maintenance (O&M) Team to address the major systemic NIIS issues. INS' response to us does not mention an O&M Team and does not adequately address what follow-through actions INS plans to take.
NIIS has not produced reliable overstay data since 1992, yet INS has failed to correct the problem. Although there have been some past efforts to correct problems with NIIS, there has been a general lack of follow-through. While the PAT may be a credible start, without consistent follow-through and additional extensive work, the problems with NIIS will remain uncorrected.
We are prepared to resolve this recommendation when INS provides us with a comprehensive plan and timetable for correcting NIIS system deficiencies or replacing NIIS with a workable system.
3. Recommendation 3 - Unresolved-Open.
INS concurred with our recommendation to conduct an analysis of overstay data that will support the development of an overstay enforcement strategy. However, INS limited its proposed analysis to data available from NIIS. We agree that NIIS data must be improved before it can support development of an overstay enforcement strategy. Our recommendation, however, also contemplated analysis of additional sources of overstay data available to INS, such as from its benefits and enforcement operations. We believe that such an analysis could be performed prior to improvements in NIIS and we are prepared to resolve this recommendation if INS provides us a plan to analyze such data.
4. Recommendation 4 - Unresolved-Open.
INS concurred with our recommendation to develop an interior enforcement strategy that effectively addresses the increasing overstay population, but its response is conditional on the availability of current and reliable overstay data. We recognize the current limitations on overstay data and our recommendations look to improvements in this area. However, development of an interior enforcement strategy that effectively addresses overstays is an immediate imperative that cannot wait for uncertain future improvements in data reliability. We are prepared to resolve this recommendation when INS develops and provides us with an interior enforcement strategy that effectively addresses the increasing overstay population.