VIII. Allegations of Deception of a Congressional Delegation During its April 8, 1995, Visit to the San Diego Sector

The Congressional Task Force on Immigration Reform (Task Force) visited INS facilities around the country to gather information for its report recommending reforms in immigration policy. On April 8, 1995, Task Force Chairman Elton Gallegly and Representatives Gary Condit, Mark Foley, and Randy "Duke" Cunningham visited the San Diego Sector. The delegation visited the San Ysidro Port of Entry, the Imperial Beach Station processing area and cellblock, and portions of the Imperial Beach, Chula Vista, and Brown Field Stations' border operations. In its subsequent report, the Task Force said it was "encouraged by the preliminary effect of the `Gatekeeper' operation and the positive results brought about by increases in technology, staffing, and equipment along the San Diego border." The report emphasized the fencing, the new road network, and the IDENT system.224

In his August 9, 1996, testimony before Congress, Bonner, citing the OIG's recent findings that INS officials had deceived the Congressional delegation during its visit to Miami, Florida, alleged a "systemic problem" with INS deceiving the public.225  He went on to allege that the same delegation had been similarly deceived during its visit to the San Diego Sector, two months before its Miami visit.

A. Allegations that the delegation was deceived

In his August 9, 1996, testimony, Bonner specifically alleged that: 1) inoperative vehicles had been towed to positions along the border for the delegation's visit; 2) additional agents had been scheduled to work during the time the delegation was present and had been assigned to positions the delegation was shown; and 3) detention areas shown to the delegation had been cleared of detainees although these areas were normally overcrowded. During his meeting with the OIG on August 15, 1996, Bonner additionally alleged that overweight or unattractive agents had been removed from areas the delegation had visited.

In an August 1996 meeting, Bonner told the OIG that he had first heard of this alleged deception sometime after his July 15 State Assembly testimony (15 months after the delegation's visit), but he was unable to specify when and said he had kept no notes or other records of the information relayed to him. The OIG subsequently learned that the Union's allegations regarding the visit were based on information from three witnesses whom none of the Union witnesses identified except to say that two were assigned to Imperial Beach - one, a Union official and the other, a line agent - and the third was not employed by the Border Patrol. The OIG was told the claims related only to Imperial Beach and at best were second-hand. None of the Union officials made any further inquiries, but had simply accepted the claims at face value.

On August 23, 1996, Congressman Gallegly wrote the Attorney General and requested that the Department of Justice investigate whether the Congressional delegation had been misled during its San Diego visit. This request was forwarded to the OIG. These allegations were subsequently joined to the OIG's overall investigation of fraud in Operation Gatekeeper.

B. The OIG investigation and evidence relating to the Congressional visit

To investigate these allegations the OIG interviewed 230 witnesses, including 83 agents from Imperial Beach where the alleged deception had occurred. The OIG also interviewed three of the four Congressmen who participated in the San Diego Sector visit.226  One hundred twenty-nine of the witnesses we questioned said they had no distinct recollection of the visit, including two Union officials acting as supervisors at the Station the afternoon the delegation visited.

In response to a document request,227 the OIG received and reviewed numerous responsive documents, including notes of meetings where the upcoming visit was discussed, electronic mail messages regarding the visit, copies of the materials distributed to the delegation, a copy of Commissioner Meissner's remarks to the delegation, various versions of the itinerary, and correspondence between the Task Force staff and INS.

1. Allegations that detention cells were cleared

In his August 9, 1996, testimony, Bonner alleged that the detention cells at the Imperial Beach station, usually overcrowded with detainees, had been cleared before the delegation arrived.228  He admittedly did not have first-hand knowledge of this allegation. None of the Union officials who made this claim could tell the OIG how many aliens were normally in the Imperial Beach cells in the afternoon or how many had been apprehended on April 8, or estimate how many had been returned to Mexico before the delegation's visit. The witnesses agreed that this allegation was merely that persons were returned to Mexico more quickly than usual, not that aliens had been improperly released into this country.

One Union official said he thought the empty cells were evidence of an attempt to deceive because he believed that the usual Sector practice was to hold apprehended aliens until the end of a shift before returning them to Mexico; he therefore presumed that the cells would have been overflowing on days with high apprehensions. This practice, however, had been abandoned well before the Task Force visit, in favor of one calling for apprehended individuals to be returned within four hours if possible, but definitely within six hours. According to a Chula Vista Station status report, women and children are to be returned "as soon as practicable after arrest and processing, usually within two hours."229

This change in policy was well documented in memoranda to the stations. An observer touring Imperial Beach Station detention area in the late afternoon, when the Task Force came (witnesses placed the time at 4:30 or 5:00 p.m.), thus could have expected to find only those persons apprehended and processed after 1 p.m.

On the other hand, another Union official testified that he had never heard that cells were cleared for the Task Force visit; he noted that the cells at Imperial Beach are no longer as crowded as they were in 1994 and that the average alien is in custody for less than four hours. Nor did the two Union officials who worked at Imperial Beach during the visit have evidence that the cells were cleared for the delegation. One of these Union officials (No. 1748) testified that he had never heard that cells were emptied during visits by dignitaries. Number 1741 testified that he did not recall working that day. Because of their supervisory roles the evening of the visit and their positions as Union officials, these men presumably would have heard about and recalled improperly cleared cells. Number 1741 did testify, however, that on one unspecified occasion during Operation Gatekeeper, a supervisor told him that he needed to get all of the aliens VR'd because of an upcoming VIP visit.

Two additional witnesses claimed that aliens had been processed and returned more quickly in an effort to deceive the delegation. A line agent at Chula Vista testified that, on April 8, the day of the delegation's visit, he had noticed the detention facilities were empty and was told by a Detention Enforcement Officer (DEO) that, because of the delegation, all of the aliens had been VR'd immediately. The name of this line agent, however, does not show up anywhere on the work schedules for Chula Vista, and, in fact, he did not join the Border Patrol until over one month after the delegation's tour. His testimony therefore could not be accurate.230

The second witness was a supervisor at the Imperial Beach Station who "believe[d]" the station tried to clear the detention cells for visitors by deporting the aliens as quickly as possible, "especially the 5150s" (the aliens classified as mentally ill). He explained that it is a Border Patrol "tradition" to make the stations look good when a VIP visits. Because records indicate that he did not work the day of the delegation's visit, this individual's belief appears to have been based solely on what he considered was usual practice, as opposed to what actually occurred during the visit. Thus, the OIG found no first-hand witnesses who could support Bonner's allegation made during his Congressional testimony.

Although we found no Border Patrol witnesses who could actually describe how the cells at Imperial Beach appeared during the visit, Commissioner Meissner recalled that they were empty and that one of the Congressional visitors had asked an agent in the station why. The agent said it had been like that for weeks. She testified further that, to her knowledge, the cells had not been emptied for the visit. CPA Johnny Williams testified that he could not recall whether the cells were empty during the visit. He conceded, however, that they could have been empty because the stations had previously been given specific instructions that aliens could not be kept in the cells for more than six hours. He denied, however, that any detainees had been removed or released for the purpose of the Congressional visit or that he had given any such instructions. WRD Gus de la Viņa said he did not recall the conditions of the cells during the tour. Ken Stitt, the acting PAIC of the Imperial Beach Station at the time, specifically denied that the cells had been cleared for the delegation's visit. The acting FOS for the swing shift on the day of the visit indicated that there was nothing different about operations that day and he recalled no special planning or preparation for the visit.

Congressman Foley recalled that the cells had been empty when the delegation came through to observe the IDENT machines and the detention area. When he had asked why, he said he was told that the new technology expedited the processing of aliens, making it possible to process everyone apprehended so far that day. He was also told there would not be any additional aliens in custody until later that day because most of the apprehensions occur at night.231  Congressman Gallegly described the cells as "very sanitary" or "sterile," and looking like something out of "Mayberry."232 When he had last seen the cells, prior to Operation Gatekeeper, he said they were very crowded. Gallegly said he had no information, however, whether the cells were empty because they had been cleared for the visit or because there had been no recent apprehensions. Congressman Cunningham said he had not seen the cells at Imperial Beach, and no one had described their condition to him.

Even though no line agent could shed light on the day in question, out of more than 200 witnesses we interviewed on this issue, 12 agents, including one supervisor, told us that they knew or believed that cells are customarily cleared for VIP visits. Eleven were from Imperial Beach and Chula Vista, and one was from the Alien Detention and Removal Branch (ADR). Four additional witnesses limited their claims to saying that mentally unstable, criminal, or generally unruly detainees were cleared out before VIP visits, for fear that they would spit on the visitors or create some other type of disturbance. In addition, five other witnesses from these three units, including four supervisors, testified that stations generally try to process aliens faster on days that VIPs are scheduled to visit - which, of course, has the effect of emptying or at least making the cells less crowded. None of these witnesses, however, specified any particular instances where cells were cleared for VIPs, could identify anyone who had given the order to do so, or had information that this had occurred on April 8. Furthermore, unlike Miami, none of these witnesses suggested that aliens had been improperly released into the United States or improperly processed.

One Union official (No. 1149), claimed that "every time there is a VIP tour, there is an order to clear out the cells." He conceded, however, that there are, on average, three or four VIP tours each week at the Sector. If such orders were regularly given, one would expect that more than 22 of over 200 witnesses would know of them. Furthermore, given the large number of VIP tours in this Sector, it would be difficult to achieve consistently the desired level of deception. Not all tours have any substantial planning or orchestration of schedule that would give the stations sufficient notice to clear out purportedly overcrowded cells. It should be noted that both Gallegly and Cunningham testified that they had visited the Sector prior to Operation Gatekeeper and had observed overcrowded cells. This contradicts claim that cells are always cleared for VIP visitors.233

In light of the number and the credibility of the witnesses who allege that aliens have been processed more quickly or that cells have been cleared, however, we believe there have been occasions when this occurred. Unfortunately, without any specifics as to dates and times and who issued the order, we could not investigate these claims. One possible explanation for the absence of details may be because the practice has ended. Although there were numerous VIP visits during the time the OIG was conducting this investigation, we received no complaints of this nature during the investigation. In addition, two witnesses told the OIG that emptying cells for VIP visitors had been the practice in the 1980s, but that it had stopped in the 1990s.

One recalled placing aliens on a bus overnight to clear the cells to make the facility "look nice" for a visit by then-Attorney General William French Smith. The second witness noted that there was no longer a need to clear cells because the standard practice is to remove aliens from the cells within four hours, making the cells less crowded than they used to be.

In sum, although we had specific information that the Imperial Beach cellblock was empty or virtually empty when the members of the Task Force toured the station, we found no eyewitnesses who could say that the cellblock had been intentionally cleared for the visit. Still, because of the general allegations about VIP tours, we reviewed the documentary evidence. First, we requested and received the I-826s that had been filled out for each of the individuals processed on either April 7 or 8, 1995, at the Imperial Beach, Chula Vista, and Brown Field stations. Second, we obtained electronic copies of the IDENT entries for everyone processed through IDENT on those same two days at the same stations.234  We also requested any transportation logs relating to the transport of these individuals. Unfortunately, only Brown Field had retained any relevant transportation logs.235 We also reviewed desk logs and any other surviving station records from those dates.

The April 8, 1995, IDENT entries indicate that the last individuals processed at the Imperial Beach Station prior to the Congressional delegation's arrival between 4:30 p.m. and 5:00 p.m. were four aliens who were fingerprinted between 2:21 p.m. and 2:26 p.m.236  Under Border Patrol guidelines, the four should not have been held past 6:25 p.m. and, if possible, should have been returned to Mexico even earlier. Unless one of them had requested a formal deportation or had a criminal record of a nature requiring that he be formally deported, this small group could have been easily returned to Mexico in less than four hours, even in the absence of an imminent VIP visit. Moreover, because these four were most likely the last arrested during the day shift,237 and the shift that apprehends an individual is normally responsible for processing him, agents would have their own reasons for getting these aliens out of the detention area quickly.

Before this group of four, the Imperial Beach Station entered 44 individuals into IDENT between 12:30 and 1:21 p.m., averaging one per minute. As there were several IDENT stations at Imperial Beach, this would have been achieved easily under normal processing conditions. Indeed, our review of transport logs for Brown Field - which the delegation was not scheduled to and did not visit - for April 8 found that this pace of processing for 44 aliens was quite normal.238  Moreover, as already noted, the day shift would not have been allowed to go home until all of these individuals had been processed. Finally, despite Bonner's claim, one cannot plausibly say that the cells would have been overcrowded had this group not been returned to Mexico before the delegation arrived, as 44 aliens would have been less than one quarter of the holding capacity of the Imperial Beach cellblock.

The next question we addressed was whether the lull in apprehensions lasting from 2:25 p.m. until 7:24 p.m., which was after the delegation toured the facility, was unusual. Numerous witnesses testified that afternoons were generally the slowest time of the day, because most persons crossed at night and were usually apprehended that night or in the morning. The Task Force was told this during their visit. We also looked at the previous day's IDENT records to see whether such a lengthy gap between apprehensions was unique to the day of the delegation's visit. Although the four-and-a-half hour gap between 1:26 and 5:59 p.m. on April 7 is not quite as long as the one on April 8, the two gaps are similar in that they began near shift change and lasted until a time when crossing attempts normally resumed.239  Thus, the gap did not appear to be extraordinary or immediately attributable to the visit. Indeed, Bonner did not allege that he had received any information that anyone had been told not to make apprehensions that afternoon.

In light of testimony from two witnesses claiming that on the days of VIP visits aliens are processed in the field instead of at the station, we looked to see if there were any I-826s from the Imperial Beach Station on April 8 that did not have a corresponding IDENT record (which could be created only on the machines at the station). Of the 366 I-826s attributed to the Imperial Beach Station on April 8, only three did not have a corresponding IDENT record; one in the morning and two in the evening.240 Thus, the apprehension records yielded no evidence that the processing of aliens was accelerated to artificially clear the cells for the delegation's visit.

Because no witness testified that an order had been given to clear the cells, because the cells were not overcrowded and consequently there was no reason to clear them, and because the documentary evidence contradicted any claim that the processing was handled differently on April 8, the allegation that "normally overcrowded cells were cleared" because of the Congressional visit is unsubstantiated.

Although the specifics of this allegation were baseless, credible witnesses did suggest that, at least on some unspecified occasions, cells were cleared or aliens processed more quickly in anticipation of a VIP visit. Because they could provide no details, we could not adequately investigate these claims. Several facts were clear, however. First, this practice was clearly alleged to have its genesis long before Operation Gatekeeper. Thus it would not be fair to link it to any specific effort to mislead anyone about this operation. Second, to the extent that the practice was an effort to hide overcrowding, the advent of the new processing procedures and time limits on detention during Gatekeeper have significantly reduced the motive to engage in any such practice. Third, in response to complaints by immigrant rights advocates the Mexican Consul has been granted leave to make surprise inspections of the cellblocks. Thus, the stations must be in compliance with the rules at all times.241  Finally, there is a qualitative difference between doing one's job more efficiently when visitors are anticipated and engaging in malfeasance. In Miami, aliens who should not have been released in the United States were so released and others, at great expense, were hidden from view by transporting them elsewhere for holding. The only claim here was that agents worked more efficiently than usual. And there was not even any evidence that they in fact did so the day the Task Force came.

2. Allegations that disabled vehicles were towed to the line

Bonner also alleged that disabled vehicles were towed to the line to make it appear that there are more positions along the border than was actually the case.242  But he did not testify as to who towed the vehicles, how many were towed, or whether his sources had first-hand knowledge.

To investigate this allegation, the OIG interviewed all of the Sector garage personnel who worked on April 8, several supervisors in the garage, and a sample of individuals who worked in the garage on April 7, in addition to questioning agents at the various stations. Of the 136 people who responded to questions regarding this allegation, not one claimed to have first-hand knowledge that any disabled vehicles had been towed to the line for the delegation. One witness, a line agent at Imperial Beach, claimed that "one time" after Operation Gatekeeper began, he saw an "unfit" vehicle on the border and suspected it was put there because of a visitor. But he could not relate this to the April 8 visit. Another line agent at Imperial Beach recalled that "deadlined" (inoperable) vehicles had been towed to the line for a VIP visit, but believed it was one involving the Attorney General.243   In addition, a line agent from Imperial Beach and three line agents from Chula Vista testified that they had heard rumors that inoperable vehicles had been towed to the border for the Congressional visit. A Union official at Imperial Beach testified that he had heard the rumor but had discounted it because of the limited number of towing vehicles and the logistical difficulties of getting a disabled vehicle to the line. Each of the Congressmen testified that they could not tell whether any of the vehicles they saw were inoperable.

Acting PAIC Stitt and acting APAIC Roland Gonzalez both denied that any disabled vehicles had been towed to the line for the delegation's visit. The ten garage personnel the OIG interviewed rejected Bonner's claim out of hand, with one employee declaring it "outrageous" and another describing it as "absurd." The garage personnel noted that, if any vehicles had been towed, they would have known it, because the Imperial Beach Station does not have any towtrucks; they must use ones from the Sector Garage.

A number of witnesses noted that the Border Patrol had, in the past, towed deadlined vehicles "manned" by dummies to known crossing points. However, all testified that this only occurred prior to Gatekeeper, and except for No. 1922, all said that the goal was to deter aliens, not impress visitors.244   This ruse stopped being used because the aliens quickly discovered that the occupants were dummies and either dismembered or stole them. Moreover, several witnesses noted the addition of vehicles and personnel during Gatekeeper ended the need for dummies.

As we found no witnesses who claimed to have observed or to have direct knowledge of deadlined vehicles being towed to the border and substantial credible testimony specifically refuting this claim, we find this allegation to be unsubstantiated.

224 A copy of the Task Force's report is contained in the Appendix to this report at A-66.

225 On June 14, 1996, the OIG issued a report of its investigation into allegations that the Task Force had been deceived during its June 10, 1995, visit to two INS facilities in Miami. The OIG found, inter alia, that many detainees at the Krome Service Processing Center had been moved from the facility or improperly released before the delegation arrived to hide the fact that it was overcrowded; that additional personnel were on duty at the Miami airport during the delegation's visit to make the operations appear more efficient than usual; that persons ordinarily held in detention cells at the airport were removed and placed in a separate seating area; and that Union officials were essentially excluded from the visit and threatened with arrest if they attempted to join the Delegation during a briefing. The allegations of wrongdoing during the Miami visit were first raised a few days after the delegation's visit in a written document signed by nearly 50 members of the Union.

226 Beginning in July 1997, the OIG made numerous efforts to contact Congressman Gary Condit for an interview, none of which proved to be successful in obtaining Representative Condit's account of what occurred during the visit.

227 A copy of the request is contained in the Appendix to this report at A-52.

228 This allegation is similar to one made about the Task Force's visit to Miami. In that case, it was alleged that significant numbers of detainees in normally overcrowded cells at the Krome Service Processing Center had been moved or released prior to the Task Force visit to make it appear as if the Center was not overcrowded. OIG's investigation into the Miami visit determined that this allegation was true. There are substantial differences between the detention cells at the Imperial Beach Station and the Krome facility that should be noted, however. First, the Imperial Beach Station cells do not house apprehended persons overnight. It is a temporary holding facility for individuals who are to be VR'd, usually within a few hours of their apprehension. Criminal aliens or persons seeking a deportation hearing are removed to an overnight facility. By contrast, Krome was a custodial facility in which people were held for substantial periods of time. Second, the individuals released in Miami were improperly released into the United States or moved at great expense to another facility. The allegation here is simply that aliens were processed and removed from the country more quickly than usual.

229 Instead of holding persons for long periods of time to preclude them from making an immediate attempt to reenter, the new policy calls for as many aliens as possible to be returned to a distant port-of-entry so they would have to make some effort to return to their original entry location and their smuggler. Several witnesses indicated that this change in policy was due to efforts of local immigrant rights advocates who monitor the Border Patrol's treatment of apprehended persons.

230 This witness is no longer employed by the Border Patrol for reasons unrelated to this investigation.

231 Foley said he had been surprised that the facility was empty because he thought there were too many aliens in the area not to have someone in custody. He said he thought at least some aliens would have been apprehended at the checkpoints or somewhere and would have needed to be processed. Ordinarily, however, only aliens apprehended in the Imperial Beach area of responsibility are processed at the Imperial Beach Station. Those apprehended at the checkpoints are processed at the checkpoints.

232 Congressman Gallegly said he recalled there was one woman with her child in the cells and that former Western Region Director Harold Ezell questioned the woman. Sector records, however, indicate no children were apprehended that day at the Imperial Beach Station. Gallegly indicated at the outset of his interview that due to the many trips he has made to the Sector and the length of time since this particular trip he may have difficulty distinguishing between the various trips; so it is possible that his account in fact related to what he observed during another trip.

233 No. 1149 claimed that, as a result of VIP visits, criminal aliens have been improperly VR'd to Mexico instead of being held for formal deportation. But he had no first-hand knowledge of this occurring, could not recall from whom he had heard the information, and could not give any specific dates or locations where this occurred.

234 Our direct computer link to the IDENT database provided a check against any potential efforts to provide only selected I-826s, because we could match the IDENT records to the corresponding I-826s for any individual apprehended on the relevant days.

235 At the time of the visit the transportation system had not yet been centralized nor had it been computerized. The logs were merely handwritten sheets of paper. Imperial Beach and Chula Vista could not locate any such records from that time frame. In light of the substantial time that had passed since the visit and the fact that these records were created solely for the station's internal use and not as part of its official reporting to Sector, we did not find the inability to locate these records suspicious.

236 The IDENT machines around the country are set to the Eastern time zone. We have adjusted the times to correspond to the Pacific time zone.

237 If the I-826s are properly filled out, they will indicate the actual time of the apprehension in the field. On this particular day, however, the documents indicate that someone initialed an  I-826, wrote 4/8/95 and 8 a.m., and then made 53 copies. These premarked forms were used throughout the day and the only original information was the name of the apprehended alien. Because IDENT generates its own date and time record, however, it can be determined that these individuals had been apprehended before the time of the corresponding IDENT record, which indicates the time these individuals were processed.

238 From shortly after midnight until late afternoon on April 8, the aliens processed at the Brown Field Station waited on average one hour and 40 minutes before being transported from the station. One group of 22 waited four hours and one group of 20 waited five hours before being transported. In contrast, 78 waited less than one hour and 292 waited less than two hours. The remaining 30 were transported in under three hours. Between noon and 1 p.m. there were 4 busloads of aliens transported from Brown Field to the port of entry, carrying 78 aliens. There were 48 persons processed at Brown Field between noon and 2 p.m. All had been transported from Brown Field by 3:15 p.m. We also compared these times to the waiting times at the Brown Field Station on five other days in April 1995. There was no evidence that the Brown Field Station processed aliens more quickly than usual on the day of the delegation's visit.

239 The fact that the gap did not begin and end at the same time is not surprising. Alien crossings do not run on a set schedule. Furthermore, the amount of time it takes to transport an apprehended alien from the field to the station may vary from day to day. Thus, individuals apprehended at approximately the same time on different days may be processed at different times during those respective days. If one wanted to make sure the cells were empty by a particular time, one would use additional transport vehicles to get the aliens from where they were apprehended to the station as quickly as possible to accelerate the turnaround time. The fact that aliens were processed later in the afternoon on April 8 cuts against claims that the processing system was speeded up for the visit.

240 Although there were some gaps in the numbered sequence of I-826s produced to us, further research determined that identifying record numbers are not always used in sequential order and these particular numbers had been used on a different day and with corresponding IDENT records substantiating their prior or subsequent use.

241 Imperial Beach Station supervisors were counseled after a visit by the Mexican Consul on March 1, 1996, that found aliens in custody from the prior shift.

242 In February 1995 a group of Congressmen, including Gallegly and Cunningham, had written Commissioner Meissner asking that more agents be moved to positions along the border instead of in backup positions. Thus, more positions along the border would have been viewed favorably by the delegation.

243 The Attorney General was not present during the April 8 tour.

244 No. 1922 testified that the ruse was used in 1990 or 1991 for a delegation of Congressmen "or something like that."