D. The IDENT Lookout and Alert Policy
1. Development and Distribution of the Policy
a) The OIGs 1998 Inspection Report
In addition to identifying problems with IDENT training, the OIGs 1998 Inspection report described other problems with the INSs implementation of IDENT. For example, the report noted that although enrollment rates of apprehended aliens in some Border Patrol sectors were high (such as in the San Diego Sector where approximately 90 percent of apprehensions were enrolled in IDENT), enrollment rates in other sectors were much lower (such as in the El Paso Sector where approximately 40 percent of apprehended aliens were enrolled in IDENT).57 One of the OIG recommendations was that the Border Patrol should develop and implement strategies in each sector to enroll all apprehended aliens in IDENT.
Another major finding in the OIGs Inspection report was that the INS was not entering many deported aliens into the lookout database. Only 41 percent of the aliens who were deported or excluded in fiscal year 1996 were enrolled in IDENTs lookout database. Although some INS offices were submitting fingerprint cards to the lookout database for over 90 percent of the deported aliens, others were submitting no cards. INS offices in the Central Region, where all of Resendezs IDENT enrollments occurred, were submitting only 13.6 percent of the cards for deported aliens. The OIGs Inspection report stated that the INSs failure
to enter many criminal and deported aliens into the lookout database, has resulted in criminal and deported aliens being released (usually voluntarily to Mexico) when subsequently apprehended because INS failed to identify them as having criminal or immigration histories [emphasis added].
We similarly emphasized in our cover letter accompanying the report: We believe this results in previously deported aliens (including aggravated felons) being released from INS custody when subsequently apprehended because INS is unaware of their immigration or criminal histories.
The OIG report pointed out that the INS had failed to clearly define criteria for placing individuals in the IDENT lookout database. We found that INS personnel in some locations did not know about the requirement to submit aliens fingerprints for the lookout database and that INS had not taken steps to enforce this requirement. The report stated, As a result, INS cannot identify all criminal and deported aliens when subsequently apprehended because so many of them are not in the IDENT lookout database.
We recommended that the INS clearly define the criteria for placing aliens in the lookout database. We also recommended that the INS develop and implement a plan to ensure that the fingerprints of criminal and deported aliens are consistently entered into the IDENT lookout database.
b) The INSs Response
The INS concurred with these OIG recommendations, stating in a March 1998 response to the OIG report that a plan would be developed and implemented to ensure that the fingerprints of criminal and deported aliens are consistently entered into the IDENT database. The INS said that its Office of Field Operations would be responsible for communicating the criteria to INS field organizations and coordinating any training activities that may be required as well as monitoring compliance.
On April 7, 1998, Michael Pearson, the INSs EAC for Field Operations, sent a memorandum entitled Effective Use of the IDENT System to all INS Regional Directors. The memorandum stated that the INS had committed tens of millions of dollars to the development and implementation of IDENT and that its effective use was essential to Border Patrol, Investigations, Detention and Deportation, Intelligence, Inspections, and Benefits Adjudication program operations. The memorandum said that Not only must our use of the IDENT system be timely and accurate, but it must also be comprehensive and aggressive. One directive in his memorandum stated that Fingerprints of all deported aliens and known criminal aliens must be entered into the IDENT lookout database. The memorandum stated that the INS was committed to working on any concerns with the implementation of IDENT, and that one of the concerns may be proper training.
The INS also formed a team of representatives from INS Headquarters components, including OIRM, to develop a comprehensive lookout and alert policy, which was circulated for comments throughout the INS. The final policy provided detailed descriptions of which aliens must be entered into the lookout database, which aliens may be entered into the lookout database, and which aliens should have an alert placed on them in the recidivist database. The policy also described the process for making entries into the lookout database.58
In a memorandum dated August 10, 1998, Pearson sent the policy to all Regional Directors and asked them to distribute it to all District Directors and Chief Patrol Agents. Pearson also required each District Director and Chief Patrol Agent to sign a compliance certification that the new procedures had been provided to and read by all officers within their District or Sector who were responsible for apprehensions or removals of aliens. These compliance certifications were signed and returned to INS Headquarters by all District Directors and Chief Patrol Agents.
We believe that this lookout policy reflected a responsible effort by the INS, in response to the OIG Inspection report, to establish specific criteria for entering lookouts and alerts in IDENT. The policy itself appeared reasonable and relatively clear. Dissemination of the policy by a high-level INS official, the EAC for Field Operations, coupled with the unusual requirement of certification that the policy had been distributed and read, also was an important and appropriate action.
Yet, we found that the INS made little attempt after this policy was distributed to ensure that it was understood or implemented. The INS provided no additional training in conjunction with the new policy, and Pearson acknowledged to the OIG that no one was asked to monitor whether the lookout policy was being followed. He said that the only monitoring of IDENT occurred at quarterly review meetings where the Border Patrols IDENT usage rates were tracked. There was no similar tracking of IDENT usage outside the Border Patrol. He acknowledged that the INS focused on the entry of aliens into the recidivist database but not on the entry of aliens into the lookout database. He said he assumed that INS employees were following the IDENT policies, including the lookout policies, but he admitted that he had nothing concrete on which to base that assumption.
In its response to the OIG Inspection reports recommendations, the INS also stated that the INSs Office of Internal Audit (OIA) will include compliance with IDENT procedures as a part of the standard INSpect review procedures by July 30, 1999.59 Including questions about compliance with IDENT in an INSpect review is important because it emphasizes to INS employees that the use of IDENT is viewed as an essential part of their job and will be monitored. Yet, the current INSpect review guides contain no questions about IDENT. An INSpect review of the Houston District Office done in May 1999 and completed in a draft dated December 8, 1999, also contains no mention of IDENT.60
Within the INS Central Region, the August 1998 lookout and alert policy was distributed to all the Chief Patrol Agents and District Directors, along with a cover memorandum dated August 17, 1998, from Regional Director Mark K. Reed entitled Procedures for Entering Lookout and Alert Records into IDENT. As required by Pearsons memorandum, the Reed memorandum instructed all Chief Patrol Agents and District Directors to ensure that the new policy was distributed and read by employees involved with arresting aliens and processing aliens for removal. Reeds memorandum provided the address of the BSC and the telephone number of a point of contact within the Central Region for questions about IDENT.
But there was no attempt to monitor compliance with this policy in the Central Region. The Central Region point of contact told the OIG that after distribution of the lookout policy, he received a number of questions from INS employees that caused him to assume that employees within the Region had received, reviewed, and were implementing the policy. Our review demonstrated otherwise. Through our interviews of employees in the Central Region and the Houston District Office, we learned that many Investigations employees did not regularly use IDENT and ignored the policy after they received it. As we describe below, many Houston District investigators and intelligence officers to whom we spoke showed a complete lack of understanding about the lookout policy and did not know how lookouts were entered or what lookouts were. And we found no effort by their supervisors to ensure that the lookout policy was understood or implemented.
2. Houston Investigations Office
In the Houston District Office, the August 1998 lookout and alert policy was distributed by the then-Acting District Director, Roger Piper, to INS employees in Investigations, Detention and Deportation, and Inspections offices. Assistant District Directors for these offices were required to sign the compliance certificate that the policy had been provided to and had been read by all employees who were responsible for arresting or removing aliens. After receiving the compliance certificates from the Assistant District Directors, Piper signed a compliance certificate on behalf of the Houston District Office and provided it to the Central Region and INS Headquarters in November 1998.
When we interviewed Piper, he said he was aware of IDENT but had never received training on it and does not use it in his job because he does not process aliens. He said that he never heard about any problems with IDENT (before the Resendez case) and assumed that any problems were being attended to.
When the lookout and alert policy was distributed in Houston, the highest-ranking Houston Investigations official in the office at the time was Fred Sanchez. He was the Acting Assistant District Director for Investigations and the supervisor of the OCDETF squad. Sanchez signed a memorandum dated September 2, 1998, titled Subject: Procedures for Entering Lookout and Alert Records into IDENT, which was sent along with the lookout and alert policy to all employees in the Houston Investigations office. The memorandum stated that as long as the [IDENT] equipment is functional Investigations will enter every alien that is processed into IDENT and that we will start using the IDENTIX machine in the near future to take fingerprints on all aliens processed by us.
Sanchez told the OIG that he had no recollection of preparing this memorandum or distributing the lookout policy. He denied that he had any responsibility for ensuring that investigators in the Houston office followed the lookout policy, reasoning that he was only acting for his supervisor at the time he signed the memorandum. Moreover, he professed almost a complete lack of knowledge of the IDENT system. He told us that IDENT was all French to [him] and that he doesnt know what IDENT is supposed to do.
A supervisory special agent in the Houston Investigations office told us that when he received the lookout policy from the Central Region in August 1998, he asked Sanchez to prepare the cover memorandum and forward copies of the policy to all Houston Investigations employees who would have contact with IDENT.61 However, even this special agent said that prior to the OIGs investigation into the Resendez matter, he did not understand the process of entering lookouts and alerts in IDENT. He told us that that he did not think that lookouts were entered in IDENT; he incorrectly believed that they were entered into an FBI database (NCIC).
Although the compliance certificates were signed by all Houston District Office Assistant District Directors and the Acting District Director, no one in the Houston District ensured that employees understood the policy and were actually using the lookout database. According to Acting District Director Piper, the Houston District does not track how many apprehended aliens are entered in IDENT, and no report about IDENT usage is provided to the District Director. Supervisors in the Houston Investigations office also did not require their employees to have lookouts entered in IDENT or use it. For example, an acting supervisor in the Investigations offices Anti-Smuggling Unit told the OIG that he did not follow the lookout policy and did not tell the people he supervised to follow it. When asked why, he shrugged and said he did not know.
3. El Paso and Del Rio Border Patrol Sectors
Within the Border Patrol sectors that enrolled Resendez in IDENT, we found that the August 1998 lookout policy was disseminated but not emphasized. The two Border Patrol officials in the El Paso and Del Rio Sectors who signed the compliance certification said that they were only required to distribute the policy to their subordinates and that they had to rely on their subordinates to provide the information to Border Patrol agents. Both asserted that it was incumbent on agents to read and understand materials that they received and there was no way to confirm that they had read and understood the lookout policy. One stated that if the policy was deemed of sufficient importance, each agent would have been required to sign his initials to the document after reading it, but that was not required.
We were unable to confirm what percentage of the agents in the Del Rio and El Paso Sectors actually read and, more importantly, understood the IDENT lookout policy. However, we found a distinct lack of understanding among the agents we interviewed regarding such fundamental issues as how, where, and by whom lookouts and alerts are initiated and entered in IDENT; the distinction between lookouts and alerts; and the difference in appearance between lookouts and alerts.
4. Detention and Deportation Offices
Among other duties, D&D offices process convicted aliens with orders of removal from the United States. These offices also make the ten-print cards that are to be included in the aliens A-file and sent to the FBI for inclusion in its criminal databases. They also should send a ten-print card to the BSC to enroll aliens who qualify for inclusion in the IDENT lookout database. Tim Biggs estimated for us that at least 80 to 90 percent of the ten-print cards that are sent to the BSC for lookouts should come from D&D offices.
The D&D offices we examined were not following the IDENT lookout policy. For example, the El Paso and San Antonio D&D offices were not consistently sending ten-print cards to the BSC for entry of aliens into the lookout database. Other offices sent to the BSC many aliens fingerprint cards that did not qualify for the lookout database.62 Most important, no one monitored whether offices that should have been sending cards to the BSC for entry into the lookout database were in fact sending them.
When we interviewed D&D supervisors in the Houston District Office, they seemed unfamiliar with the IDENT lookout policy. Emilio Saenz, the Houston Assistant District Director for D&D, acknowledged that he signed the compliance certificate regarding the August 1998 lookout policy, but he believed that his signature merely meant that he had disseminated the policy to his employees. Saenz said he had no idea whether the memorandum dealt with IDENT lookouts.
The Houston D&D office used the Detention Management System (DMS), which included IDENT processing, to process aliens who were being deported. According to a supervisor in the Houston D&D office, D&D officers would book 100 percent of the aliens processed into DMS and, concurrently, in IDENT. But in November 1998, INS Headquarters discontinued the use of DMS, and IDENT was no longer accessible through it. We found that after November 1998, Houston D&D employees did not enroll any aliens in IDENT.
According to supervisors in the San Antonio D&D office, which processes and deports aliens convicted of offenses committed in the Del Rio Border Patrol Sector, the San Antonio D&D office has never sent any ten-print cards to the BSC for inclusion in the lookout database. This is significant because this D&D office covers 78 counties in Texas, including the metropolitan areas of San Antonio, Austin, Waco, Laredo, and San Angelo. It also includes all of the border area within the Del Rio and Laredo Border Patrol Sectors. Officials in the San Antonio D&D office who we interviewed did not think they had violated an important INS policy. In the District Directors absence, the Deputy District Director in the San Antonio District Office signed the compliance certification in response to the August 1998 memorandum. The District Director told the OIG that it was his responsibility for disseminating the lookout policy to his subordinates. However, he did not believe that he was expected to ensure his subordinates compliance with the procedures because, according to him, INS Headquarters actions did not suggest that IDENT was a priority.
The Deputy District Director argued that his position was supported by a September 10, 1999, draft INSpect Review of the San Antonio District Office, which was conducted by the INS Office of Internal Audit in March 1999. He reasoned that since this review, which supposedly encompassed all high priority items, did not include any discussion of IDENT, it followed that IDENT and the procedures for entering lookouts in IDENT were not priorities for INS Headquarters. He argued that, consequently, there should be no expectation that the District would treat IDENT as a priority.
Similarly, the Assistant District Director for D&D said that neither she nor, to her knowledge, anyone under her supervision was familiar with entering lookout and alert information in IDENT, and in any event, no one in D&D knew to forward ten-prints to the BSC. She said that because the San Antonio D&D office was unaware of its expected use of the IDENTIX machine, the machine was moved to the Investigations office within a month based on the belief that Investigations had more use for it.
According to El Paso D&D employees who process aliens convicted of offenses in the El Paso Border Patrol Sector, the El Paso D&D office sent ten-print cards to the BSC for only five of the 36 months between July 1996 and July 1999 that its IDENTIX machine was working. Although they acknowledged that they were aware of the August 1998 lookout and alert policy, no fingerprint cards were sent to the BSC by El Paso D&D employees during the other 31 months.63 El Paso D&D employees said that no one ever told them about the option of sending fingerprint cards to the BSC by mail. Yet, the mail-in option was specifically described in the August 1998 lookout and alert policy.
5. Problems with IDENTIX Livescan Machines
Another example of the problems with the entry of lookouts in the IDENT lookout database relates to the INSs purchase and use of IDENTIX livescan machines. From 1995 to October 1999, the INS purchased approximately 160 livescan machines. Approximately 60 of these machines went to INS enforcement operations. The cost of the purchase, installation, and training for the 60 IDENTIX machines that were provided to INS enforcement operations was approximately $3.5 million. As noted above, an important use for IDENTIX in enforcement operations was to help D&D offices efficiently take ten-print cards and electronically transmit them to the BSC for entry in IDENTs lookout database (rather than taking rolled ink print cards and mailing them to the BSC). The machines can also be used by investigators to take prints of arrested aliens for comparison to FBI or A-file records.
Once the INS decided to purchase the livescan machines, it hired the IDENTIX Corporation to provide services associated with these machines, including installation, training, and service. The INS also hired a contractor, Raytheon, to assist IDENTIX in the deployment and installation of the IDENTIX machines. Raytheon proposed to the INS that it conduct a site survey of the INS District Offices and Border Patrol sectors where the INS was considering placing the machines, to confirm that the machines were in fact needed at these sites, to determine how many machines were needed, and to locate where the machines should be placed for maximum efficiency. According to the Raytheon official who proposed this site survey, OIRM rejected the idea, asserting that INS personnel could determine where the machines should be placed after they were delivered. As a result, the machines were delivered wherever employees at the chosen sites suggested, which often turned out to be illogical places for processing apprehended aliens. In some cases, D&D officials told us they were not informed of the purpose of the machines and never used them. Tim Biggs told the OIG that OIRM placed the IDENTIX machines where the District Offices requested them, and it was not OIRMs role to dictate their location.
In addition, according to a contractor who was involved in the IDENTIX installation and training in the El Paso and Del Rio Sectors, few of the IDENTIX machines initially were set up to transmit ten-print images directly to the BSC. As of July 1999, communication lines that would enable transmission of data to other sites had been installed for only 35 of the 56 livescan units in the field. The contractor with primary responsibility for servicing the IDENTIX machines stated that the majority of machines still have not been used to transmit fingerprints to the BSC. He said that two-thirds of the sites that he visited in 1998 were not using the IDENTIX machines for a variety of reasons, such as the machines were not connected to the BSC when installed, the machines were broken or believed to be broken, the employees at various sites did not understand the transmit function, and, most important, that no one at INS Headquarters was directing them to use the machines.
In sum, we found broad problems with the design and implementation of IDENT, which explains some of the deficiencies in the Resendez case. The INSs day-forward decision to include information on criminal aliens after the lookout database was deployed affected the usefulness of IDENT as a tool for identifying and apprehending criminal aliens. In addition, IDENT was not, and is still not, linked with other criminal or INS databases. And although one of the stated missions of IDENT was to identify and apprehend criminal aliens, our review demonstrated that many INS employees viewed it solely as a database for the Border Patrol to track repeat illegal border crossers, not a tool for other INS components.
Our interviews with a wide range of individuals from a variety of components within the INS indicated that program offices such as Investigations and Intelligence were not involved in the design or implementation of IDENT. This task was assigned to OIRM, which focused its energies on deploying IDENT within the Border Patrol. This further led program offices such as Investigations and Intelligence to view IDENT as an OIRM and Border Patrol initiative. Program offices other than the Border Patrol were not educated on how IDENT could be used and how it could be useful in their work. No single individual or entity in INS coordinated IDENT policies with its technical aspects.
As made clear by the Resendez case, placing certain criminal or wanted aliens in IDENTs lookout database could help INS investigators increase the chance that they would be detained if they were apprehended. IDENT also could assist investigators by providing information documenting an aliens pattern of border crossings or recent locations, which could provide leads for locating the alien. Michael Pearson, the EAC for Field Operations, told us that he believed that all INS operational components involved with aliens should use IDENT. But we found that many INS program offices, including Investigations and Intelligence offices, failed to use IDENT effectively or at all.
We also found that IDENT training, particularly outside the Border Patrol, was ineffective or non-existent. The Border Patrol agents who received training still had significant gaps in their knowledge about IDENT and the procedures to be used. Many employees who did not regularly use IDENT, such as investigators in the Houston District Office, received IDENT training that was not tailored to their work. Intelligence officers outside the Border Patrol received no IDENT training.
We found significant problems in INS employees knowledge of and adherence to the procedures in the IDENT lookout and alert policy that was developed in 1998 in response to the OIG Inspection report. Although the INS disseminated the policy widely and required certification that INS employees read it, the INS did little to ensure that the policy was in fact understood and followed. The INS provided no training about the lookout policy, and INS managers and supervisors simply assumed agents in the field were using the policy and appropriately entering individuals into the lookout database. This was misguided optimism on the part of INS managers.
Finally, contradictory expectations on the part of various INS senior managers concerning who within the INS would use IDENT were at least in part responsible for the problems we found. For example, the INS EAC for Field Operations told us he expected all INS enforcement agents to use IDENT, making the argument that it would tie border enforcement activity to apprehensions made in the interior. It was also the expectation of the Associate Commissioner for OIRM that IDENT would be used by all enforcement components, not just the Border Patrol. The INSs IDENT project plan, which describes the role of IDENT, also reflects this expectation. But at the same time, the Headquarters Investigations view was that IDENT did not meet their needs. The OIRM official responsible for developing and deploying IDENT also stated that his focus was on the Border Patrol and that Investigations did not figure in his efforts. This contradiction is further exemplified by the fact that IDENT data that was provided to INS upper management only focused on utilization rates by the Border Patrol. There is no indication that INS Headquarters or field management monitored how IDENT was being used in other INS units or by whom.
Despite all the failings in the INSs use of IDENT, many INS employees told us that IDENT is a valuable system that should not be abandoned. For example, Mark Reed, the Regional Director in the Central Region, emphasized that before IDENT it was impossible to identify or keep track of recidivist alien border crossers and there was no risk to the aliens when they were repeatedly apprehended. Reed stated that the INS would be lost without IDENT. Many others throughout the INS shared this sentiment. Moreover, we heard repeatedly from other law enforcement officers to whom we spoke about IDENT that now that they know about the system, they believe it can be a valuable tool for identifying and apprehending criminal aliens. We agree and believe that the INS should improve the use of IDENT rather than abandon it.
57 These figures suggest the strong possibility that Resendez may have been apprehended by the Border Patrol along the Southwest Border more than the eight times recorded in IDENT.
58 We described these categories in detail in Chapter VIII(A).
59 INSpect procedures are specific steps that must be taken by INS employees who review the performance of INS offices. The INSpect review assesses such elements as the effectiveness of the administration of major programs and activities; compliance with statutes and INS policies and regulations; and office accomplishments.
60 According to INS managers, IDENT compliance standard elements for inclusion in INSpect reviews have been drafted for the Border Patrol and were expected to be implemented in early 2000. However, the implementation of the new INSpect guides has been delayed and will not be ready until June 2000. We were told that the guides for Inspection and D&D will include elements on IDENT procedures. No mention was made of when a new guide would be developed for Investigations.
61 This supervisory special agent said that he had been placed in charge of IDENT when it was first installed in the Houston District Office. He said that the employee in charge of Automated Data Processing (ADP) in the Houston District Office discovered this and insisted on taking over the IDENT program. The supervisory special agent said he did not object because it seemed reasonable for an ADP employee to manage IDENT. The ADP employee reported to the OIG, by contrast, that he had nothing to do with IDENT.
62 For example, the Del Rio Border Patrol Prosecutions Office sent thousands of ten-print cards to the BSC each year that did not meet the lookout criteria. From January 1998 through June 1999, the Del Rio Border Patrol Sector sent over 2,600 ten-print cards to the BSC for every alien who was charged with any offense. More than 80 percent of these charges involve misdemeanor entry without inspection cases, which do not qualify the alien for inclusion in the lookout database. A Del Rio Border Patrol representative told us the BSC had only returned a few cards per month for technical deficiencies in the information provided on the card.
63 Despite all this down time for the El Paso IDENTIX machine, the IDENT Help Desk had only one record of a complaint by the El Paso D&D regarding the machine in July 1999 after the OIG had interviewed El Paso D&D officials about the Resendez case.