Cooperation of SCAAP Recipients in the Removal of Criminal Aliens from the United States (Redacted)

Audit Report 07-07
January 2007
Office of the Inspector General

Chapter 1 – Introduction

As required by Congress (Public Law 109-162), the United States Department of Justice (DOJ) Office of the Inspector General (OIG) conducted an audit of the Office of Justice Programs’ (OJP) State Criminal Alien Assistance Program (SCAAP). The congressional mandate required the OIG to perform a study and report to the Judiciary Committees of the United States Senate and the United States House of Representatives on the following matters pertaining to recipients of SCAAP payments:

Whether there are States, or political subdivisions of a State, that have received compensation under Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) and are not fully cooperating in the Department of Homeland Security’s efforts to remove from the United States undocumented criminal aliens (as defined in paragraph (3) of such section).

Whether there are States, or political subdivisions of a State, that have received compensation under section 241(1) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) and that have in effect a policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373).

The number of criminal offenses that have been committed by aliens unlawfully present in the United States after having been apprehended by States or local law enforcement officials for a criminal offense and subsequently being released without being referred to the Department of Homeland Security for removal from the United States.

The number of [criminal] aliens... who were released because the State or political subdivision lacked space or funds for detention of the alien.28


SCAAP is a payment program administered by OJP through the Bureau of Justice Assistance (BJA) and in conjunction with the Immigration and Customs Enforcement (ICE) bureau within DHS.29 SCAAP was authorized by the Violent Crime Control and Law Enforcement Act of 1994 to provide federal assistance to states and localities for the costs of incarcerating certain criminal aliens who are in custody based on state or local charges or convictions.30 Since SCAAP is a payment program rather than a grant program, jurisdictions that are eligible to receive funds simply provide OJP with their accounting information and accept payment through OJP’s Grants Management System. They do not have to submit program progress reports or financial status reports.

The program pays states and localities that incur correctional officer salary costs for incarcerating undocumented criminal aliens who: (1) have at least one felony or two misdemeanor convictions for violations of state or local law, and (2) are incarcerated for at least four consecutive days during the established reporting period.31 Applicants for funding are required to provide correctional officer salary costs, the total of all inmate days, and details about eligible inmates housed in their correctional facilities during that period.

For the applications received, ICE assists BJA by checking the inmate data submitted by the jurisdictions that seek SCAAP payments to determine the immigration status of those inmates. This process is described as “vetting” the data. In FY 2005, BJA distributed $287.1 million in SCAAP payments to 752 state, county, and local jurisdictions.32 Individual payments ranged from a high of $85.9 million (State of California) to a low of $40 (Polk County, Minnesota). In FY 2004, BJA distributed $281.6 million to 741 jurisdictions in amounts ranging from $77.4 million (State of California) to $35 (Louisville Jefferson County Metro Government, Kentucky).33

Historically, congressional appropriations for SCAAP have been less than the total amount sought by all the jurisdictions applying for SCAAP payments. As a result, BJA pays a pro rata amount of a jurisdiction’s submitted expenses. In April 2005, the Government Accountability Office (GAO) reported that 80 percent of the SCAAP aliens were incarcerated in the 5 states of Arizona, California, Florida, New York, and Texas in FY 2003, but payments to 4 of those states were less than 25 percent of the estimated cost to incarcerate SCAAP criminal aliens. The FY 2003 SCAAP payments amounted to 12 percent of the estimated incarceration costs for California, 24 percent for New York, 17 percent for Florida, and 14 percent for Arizona.34

Prior to FY 2006, there were no restrictions on how SCAAP funds could be used. In the FY 2006 re-authorization Congress required that SCAAP payments be used by the recipients for correctional purposes.

Legal Authority for SCAAP

The legislation governing SCAAP includes the Immigration and Nationality Act and the Violent Crime Control and Law Enforcement Act of 1994.35 According to BJA’s SCAAP program guidelines, these statutes provide that “in general terms, if a chief executive officer of a state or a political division exercises authority over the incarceration of undocumented criminal aliens and submits a written request to the U.S. Attorney General, the Attorney General may provide compensation to that jurisdiction for those incarceration costs. SCAAP is subject to additional terms and conditions of yearly congressional appropriations.” BJA states that eligibility for SCAAP payments extends to all 50 state governments, the District of Columbia, Guam, Puerto Rico, the U.S. Virgin Islands, and more than 3,000 counties and cities with correctional facilities.36

Application Process

BJA’s annual guidelines alert potential SCAAP applicants of the deadline for applying for SCAAP funding and describe the application process. Applications for SCAAP payments are accepted electronically and “must provide all required information on undocumented criminal aliens for the prescribed reporting period, the total reporting period salary information for their full and part-time permanent and contracted correctional officers, and the total of all inmate days.”37 The “required information on undocumented criminal aliens” includes the alien registration number, name, date of birth, unique inmate identification number assigned by the local jurisdiction, country of birth, date taken into custody, date released from custody, and Federal Bureau of Investigation (FBI) number.38

BJA forwards the submitted information about aliens to ICE for a determination of whether each purportedly undocumented criminal alien is indeed illegally present in the United States39 Confirmation of each individual’s immigration status is crucial in determining whether payment for detention-related expenses would be allowable under SCAAP.

In the past, ICE reported back to BJA on the eligibility for SCAAP payments using three categories: eligible, not eligible, and unknown. If ICE determined an individual was a qualifying undocumented criminal alien, ICE categorized that individual as eligible. If ICE determined an individual was not an undocumented criminal alien, ICE would categorize the individual as ineligible. The immigration status of the remaining individuals would be categorized as unknown. After receiving the results of the ICE vetting process, BJA determined the amounts to be paid each jurisdiction using a formula based: on (1) the number of jail days for eligible inmates, (2) an allowance for a percentage of the jail days of inmates whose eligibility was unknown, and (3) the amount of appropriated funds available for distribution.

However, FY 2004 was the last year for which ICE reported to BJA on the status of every person identified in support of applications for SCAAP funding.40 In that year, the applicants for SCAAP payments provided data on a total of 270,807 inmates. After vetting those records, ICE determined that 96,085 were eligible and 49,210 were ineligible as a basis for SCAAP payment. ICE categorized the immigration status of the remaining 125,512 inmates as unknown.

The following table displays the 10 jurisdictions that received the largest SCAAP payments from the FY 2005 appropriation. Collectively, they accounted for nearly 69 percent of the SCAAP payments made from that appropriation.

State Jurisdiction Amount


State of California41

$ 85,953,191

New York

State of New York



State of Texas


New York

City of New York



State of Florida



Los Angeles County42



State of Arizona



Orange County



State of Illinois



State of Massachusetts





Source: Bureau of Justice Assistance (BJA)

Although 752 jurisdictions received SCAAP payments from the FY 2005 appropriation, the vast majority of them received relatively small amounts. The following chart summarizes the number of recipients by dollar amount.

FY 2005 SCAAP Recipients by Dollar Amount: Over $1,000,000-30; $500,000 to $999,000-29; $100,000 to $499,000-93; $50,000 to $99,000-64; $10,000 to $49,000-230; Less than $10,000-306.
Source: OIG analysis of BJA data

Prior Audits

Department of Justice, Office of the Inspector General, Office of Justice Programs State Criminal Alien Assistance Program, 00-13, May 2000. Our audit reviewed FY 1996 SCAAP payments to the states of California, Texas, New York, Florida, and Illinois to determine whether the payments were appropriate based on incarceration costs and the number of undocumented criminal aliens. The five jurisdictions collectively received 76 percent of the FY 1996 SCAAP funding. The audit concluded that they were over-compensated by $19.3 million for unallowable inmate costs and ineligible inmates included in the SCAAP applications. The audit also found that OJP's compensation methodology was over-inclusive in the degree to which it paid SCAAP applicants for inmates whose immigration status was “unknown.”

Department of Justice, Office of the Inspector General, Immigration and Naturalization Service Institutional Removal Program, 02-41, September 2002. The Institutional Removal Program (IRP) is a national program that aims to: (1) identify removable criminal aliens in federal, state, and local correctional facilities, (2) ensure that they are not released into the community, and (3) remove them from the United States upon completion of their sentences. In our audit report on this program, we noted “the whole IRP process is predicated on the cooperation of the institutions in which criminal aliens are incarcerated. Without that cooperation, the IRP cannot function effectively. Interestingly, states and counties throughout the United States have received hundreds of millions of dollars annually through... SCAAP, yet there are no provisions in the program requiring state and county recipients to cooperate with the INS in its removal efforts.” Our report recommended that INS request that OJP change SCAAP provisions to require the full cooperation of state and local governments “in the INS’s efforts to process and deport incarcerated criminal aliens.” The current SCAAP guidelines do not contain any such requirement.

Government Accountability Office, Information on Criminal Aliens in Federal and State Prisons and Local Jails, GAO-05-337R, April 7, 2005. GAO reported a variety of statistical data regarding the criminal alien population of federal, state, and local custodial facilities.

Department of Homeland Security, Office of the Inspector General, Detention and Removal of Illegal Aliens: Immigration and Customs Enforcement, OIG-06-33, April 2006. The DHS Inspector General reported that many criminal aliens in state and local custody will be released at the conclusion of their sentences because ICE lacks the resources to identify, detain, and remove them from the United States.

OIG Audit Approach

We organized our audit of SCAAP to answer the four questions Congress posed in Public Law 109-162. To answer these questions, we interviewed officials at ICE; sent an OIG-developed questionnaire to 164 SCAAP recipients; visited seven locations that received SCAAP funding from the FY 2005 appropriation; 43 reviewed files at those seven sites; interviewed local officials; and performed research on the policies of SCAAP recipients that may have designated themselves as immigration “sanctuary” sites.44

  1. See Appendix II of this report for Public Law No. 109-162, section 1196 (c) (2006).

  2. Prior to creation of the DHS in 2003, the functions currently performed by ICE were performed by the Immigration and Naturalization Service, which at the time was part of DOJ.

  3. Pub. L. No. 103-322 (1994).

  4. The reporting period does not coincide with the FY for which SCAAP funds are appropriated. For example, the reporting period for FY 2006 funds was July 1, 2004, through June 30, 2005. Similarly, the reporting period for FY 2005 funds was July 1, 2003, through June 30, 2004.

  5. FY 2005 was the most recent year for which payment information was available.

  6. See Appendix III for details of the SCAAP payments made from the FY 2005 and FY 2004 appropriations.

  7. Government Accountability Office. Information on Criminal Aliens in Federal and State Prisons and Local Jails, GAO-05-337R, April 7, 2005. GAO reported that data on the cost of incarceration for the State of Texas were not available.

  8. 8 U.S.C. § 1231(i), as amended, (1996).

  9. Bureau of Justice Assistance. State Criminal Alien Assistance Program: FY 2006 Guidelines, pp. 1 and 2. The incarceration costs for which BJA pays states and localities are the salary costs of correctional officers.

  10. State Criminal Alien Assistance Program: FY 2006 Guidelines, p. 2.

  11. The FBI number is issued by the FBI to track arrests and fingerprint records.

  12. According to a July 2003 Memorandum of Understanding between ICE and OJP, ICE agreed to determine, by SCAAP applicant, the number of eligible inmates.

  13. In the FY 2005 SCAAP funding process, ICE merely reported the number of qualifying jail days for each applicant locality.

  14. When we define a jurisdiction as the “state” we are referring to the state department of corrections. We are not including all the counties and municipalities within the state that may have received SCAAP payments.

  15. This refers to the Los Angeles County Sheriff’s department.

  16. We performed field work at the State of California Department of Corrections and Rehabilitation; State of Oregon Department of Corrections; State of Texas Department of Criminal Justice; Clark County, Nevada; Cook County, Illinois; City of New York, New York; and the City and County of San Francisco, California. We selected these sites to have a mix of state, county, and local jurisdictions that received SCAAP payments of at least $1 million each. Collectively, these seven jurisdictions received $128.3 million, or 44.7 percent of the SCAAP payments issued from the FY 2005 appropriation.

  17. In this report, we use the term “sanctuary” site to refer to jurisdictions that may have state laws, local ordinances, or departmental policies limiting the role of local law enforcement agencies and officers in the enforcement of immigration laws.

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