Immigration Enforcement
Better Data and Controls Are Needed to Assure Consistency with the Supreme Court Decision on Long-Term Alien Detention Gao ID: GAO-04-434 May 27, 2004The U.S. Supreme Court's June 2001 ruling, Zadvydas v. Davis, held that indefinite detention of certain removable aliens was unlawful if their removal was not likely in the reasonably foreseeable future, even if they were deemed to be a threat to the community or a flight risk. U.S. Immigration and Customs Enforcement (ICE) conducts post order custody reviews of removable aliens to determine if continued detention is in compliance with laws and regulations. ICE is to assure that aliens meet the conditions of their release. This report addresses (1) what information ICE has to assure that its custody reviews are timely and consistent with the Zadvydas decision and implementing regulations and (2) how ICE has assured that aliens released on orders of supervision have met the conditions of their release.
ICE does not have information that provides assurance that its custody reviews are timely and its custody determinations are consistent with the Zadvydas decision and implementing regulations. One reason ICE has difficulty providing assurance is that it lacks complete, accurate, and readily available information to provide deportation officers when post order custody reviews are due for eligible aliens. In addition, ICE does not have the capability to record information on how many post order custody reviews have been made pursuant to regulations and what decisions resulted from those reviews. Therefore, ICE managers cannot gauge overall compliance with the regulations for aliens who have been ordered to be removed from the United States. Although ICE is in the process of updating its case management system, ICE officials said that they did not know when the system will have the capability to capture information about the timeliness and results of post order custody reviews. ICE also does not have readily available information on how many aliens have been released on orders of supervision pursuant to the Zadvydas regulations, or whether these aliens have met the conditions of their release (i.e., periodically report to ICE and continue to seek travel documents from their home country). One reason for this is that ICE does not have the capability to track aliens' actions required by the conditions of their release. ICE officials also reported that ICE has a shortage of deportation staff, but they did not know how many staff are needed to manage the supervision caseload. Despite ICE's challenges in this area, ICE has not provided guidance to its field offices to help them prioritize deportation officer duties and supervision cases. Such prioritization could help ICE target its resources on those supervision cases that present the highest risk to public safety.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-434, Immigration Enforcement: Better Data and Controls Are Needed to Assure Consistency with the Supreme Court Decision on Long-Term Alien Detention
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Report to Congressional Requesters:
United States General Accounting Office:
GAO:
May 2004:
Immigration Enforcement:
Better Data and Controls Are Needed to Assure Consistency with the
Supreme Court Decision on Long-Term Alien Detention:
GAO-04-434:
GAO Highlights:
Highlights of GAO-04-434, a report to congressional requesters
Why GAO Did This Study:
The U.S. Supreme Court‘s June 2001 ruling, Zadvydas v. Davis, held that
indefinite detention of certain removable aliens was unlawful if their
removal was not likely in the reasonably foreseeable future, even if
they were deemed to be a threat to the community or a flight risk. U.S.
Immigration and Customs Enforcement (ICE) conducts post order custody
reviews of removable aliens to determine if continued detention is in
compliance with laws and regulations. ICE is to assure that aliens meet
the conditions of their release. This report addresses (1) what
information ICE has to assure that its custody reviews are timely and
consistent with the Zadvydas decision and implementing regulations and
(2) how ICE has assured that aliens released on orders of supervision
have met the conditions of their release.
What GAO Found:
ICE does not have information that provides assurance that its custody
reviews are timely and its custody determinations are consistent with
the Zadvydas decision and implementing regulations. One reason ICE has
difficulty providing assurance is that it lacks complete, accurate,
and readily available information to provide deportation officers when
post order custody reviews are due for eligible aliens. In addition,
ICE does not have the capability to record information on how many
post order custody reviews have been made pursuant to regulations and
what decisions resulted from those reviews. Therefore, ICE managers
cannot gauge overall compliance with the regulations for aliens who
have been ordered to be removed from the United States. Although ICE is
in the process of updating its case management system, ICE officials
said that they did not know when the system will have the capability
to capture information about the timeliness and results of post order
custody reviews.
ICE also does not have readily available information on how many aliens
have been released on orders of supervision pursuant to the Zadvydas
regulations, or whether these aliens have met the conditions of their
release (i.e., periodically report to ICE and continue to seek travel
documents from their home country). One reason for this is that ICE
does not have the capability to track aliens‘ actions required by the
conditions of their release. ICE officials also reported that ICE has
a shortage of deportation staff, but they did not know how many staff
are needed to manage the supervision caseload. Despite ICE‘s challenges
in this area, ICE has not provided guidance to its field offices to
help them prioritize deportation officer duties and supervision cases.
Such prioritization could help ICE target its resources on those
supervision cases that present the highest risk to public safety.
Alien Removal and Custody Review Process under Zadvydas:
[See PDF for image]
[End of figure]
What GAO Recommends:
GAO recommends that the Secretary of the Department of Homeland
Security direct the Assistant Secretary for ICE to (1) ensure that ICE
has complete, accurate, and readily available information to help
assure compliance with the Zadvydas decision and implementing
regulations; (2) determine ICE deportation officer staffing needs; and
(3) provide guidance to ICE deportation officers on prioritizing their
supervision caseloads.
ICE agreed to implement GAO‘s recommendations.
www.gao.gov/cgi-bin/getrpt?GAO-04-434.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Richard M. Stana,
202-512-8777, stanar@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
ICE's Case Management System Does Not Help Assure Timely Custody
Reviews and Hampers ICE's Ability to Determine whether the Reviews Are
Consistent with the Zadvydas Decision:
ICE Lacks Assurance that Aliens Released on Orders of Supervision Met
the Conditions of Their Release:
ICE Has Had Some Success Working with the Department of State When
Travel Documents Are Difficult to Obtain:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: ICE's Basic Custody Review and Supervision Process for
Long-Term Detainees with Final Orders of Removal:
Factors That Affect Aliens' Release from Detention after the 90-Day
Post Order Custody Review:
Factors That Affect Aliens' Release from Detention after the 180-Day
Post Order Custody Review:
Orders of Supervision:
Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision:
Attorney General Guidance and Regulations:
Judicial Application of Zadvydas Standards:
Judicial Action Regarding the Expansion of the Zadvydas Holding:
Appendix IVComments from the Department of Homeland Security:
Appendix VGAO Contacts and Acknowledgments:
GAO Contacts:
Acknowledgments:
Table:
Table 1: Removable Aliens from Laos and Vietnam Awaiting Travel
Documents as of February 8, 2004:
Figure:
Figure 1: Factors That Affect Aliens' Release from Detention:
Abbreviations:
DACS: Deportable Alien Control System:
DCI: data collection instrument:
DHS: Department of Homeland Security:
ENFORCE: Enforcement Case Tracking System:
EREM: Enforcement Case Tracking System Removal Module:
HQPDU: Headquarters Post Order Detention Unit:
ICE: U.S. Immigration and Customs Enforcement Bureau:
INS: Immigration and Naturalization Service:
United States General Accounting Office:
Washington, DC 20548:
May 27, 2004:
The Honorable Russell D. Feingold:
Ranking Minority Member:
Subcommittee on the Constitution, Civil Rights, and Property Rights:
Committee on the Judiciary:
United States Senate:
The Honorable John Conyers, Jr.:
Ranking Minority Member:
Committee on the Judiciary:
House of Representatives:
Until 2001, aliens who were issued final orders of removal from the
United States could be held in detention facilities indefinitely if
U.S. immigration authorities determined that the aliens were a threat
to the community or a flight risk. However, after the June 2001 U.S.
Supreme Court decision in Zadvydas v. Davis, many aliens with final
orders of removal, including aliens determined to be a threat to the
community or flight risk, could no longer be detained beyond a period
of 6 months if there was no significant likelihood of their removal in
the reasonably foreseeable future.[Footnote 1] Only aliens who posed
certain health and safety risks could continue to be detained
indefinitely. U.S. immigration authorities are to enforce the Supreme
Court's ruling so that (1) aliens covered by the ruling are not held in
detention beyond 6 months once it is determined that there is no
significant likelihood of removal in the reasonably foreseeable future
and (2) aliens released from detention pursuant to the ruling meet the
conditions of their release. The meaning of "reasonably foreseeable
future" was not defined in the ruling or in regulations and guidance
that were subsequently issued. U.S. immigration authorities are to use
their judgment, based on the facts and circumstances of each case, to
determine what constitutes the "reasonably foreseeable future." The
Zadvydas decision applies to aliens who have been ordered removed from
the United States because they violated the nation's immigration laws.
The aliens could have originally entered the country either legally or
illegally.
The Department of Homeland Security's (DHS) U.S. Immigration and
Customs Enforcement Bureau (ICE) is responsible through its Office of
Detention and Removals for making alien custody determinations that are
consistent with the Zadvydas decision.[Footnote 2] ICE deportation
officers are to conduct periodic reviews of aliens' records and decide
whether to release or continue to detain the aliens. In these reviews,
known as post order custody reviews because they pertain to detained
aliens who have been ordered to be removed from the United States, ICE
deportation officers are to determine if the alien's continued
detention is justified and in compliance with governing laws and
regulations. Aliens released from detention as a result of a post order
custody review, including those released pursuant to the Zadvydas
decision, are to be released on orders of supervision that prescribe
the conditions of the release. In addition, ICE deportation officers
are to determine whether aliens have met the conditions of their
release, such as periodically reporting to an ICE office and informing
ICE of any address change.
In response to your inquiry regarding the long-term detention of aliens
and the implementation of the Zadvydas decision, our review addresses
the following questions: (1) What information does ICE have to assure
that custody reviews are timely[Footnote 3] and result in decisions
that are consistent with the Zadvydas decision and implementing
regulations? (2) How has ICE assured that aliens released on orders of
supervision have met the conditions of their release? (3) When foreign
governments refuse or delay issuing travel documents for the aliens to
be removed to their countries, what efforts has ICE made to overcome
these obstacles, and what are the results of those efforts?
To address these questions, we reviewed relevant documents, including
ICE regulations and policies. We interviewed officials at ICE
headquarters and in its Washington, D.C.;[Footnote 4] Chicago, Ill.;
Los Angeles, Calif.; and New Orleans, La., field offices. We visited
these field offices because they had relatively large numbers of aliens
who were detained for longer than 180 days, and they were
geographically dispersed. In the Washington, D.C., field office, we
also selected a random sample of cases for detainees who either were
being held in ICE detention with a removal order for at least 180 days
as of March 3, 2003, or had been held in ICE detention with a removal
order for at least 180 days but were released from detention or removed
from the United States between July 1, 2001, and March 3, 2003.
However, the information obtained from the case file review may not be
generalized to all cases in ICE's Washington, D.C., field office. This
is because for many cases, ICE did not have information on whether or
when a final order of removal was issued, making it impossible to
compute the number of days the alien was held in detention following
the removal order. Because we reviewed cases from only one ICE field
office, the information from the case file review also cannot be
generalized to all ICE long-term detention cases nationwide. In
addition, we interviewed officials and reviewed documents at the
Department of State.
We conducted our work between December 2002 and March 2004 in
accordance with generally accepted government auditing standards.
Appendix I provides more details about our scope and methodology.
Results in Brief:
ICE does not have information that provides assurance that its custody
reviews are timely and its custody determinations are consistent with
the Zadvydas decision and implementing regulations. ICE has an
outdated, difficult-to-use, inefficient case management system that
cannot readily notify deportation officers when post order custody
reviews are due for eligible aliens. Three of the four ICE field
offices we visited developed their own methods for trying to ensure
timely reviews, but none of the methods automatically identify which
aliens are due for post order custody reviews and when these reviews
are to be conducted. Our review of 45 case files at ICE's Washington,
D.C., field office indicated that in 42 cases, custody reviews were
done on time. In 3 of the 45 cases, the post order custody review was
either late or not done at all, raising the possibility that ICE did
not comply with the Zadvydas regulations. ICE's case management system
does not contain information that would enable ICE to determine how
many post order custody reviews have been made pursuant to the Zadvydas
decision and what decisions resulted from those reviews. Therefore, ICE
managers are not in a position to know if the custody determinations
were consistent with the Zadvydas decision and implementing
regulations. ICE recognizes the limitations of its current case
management system and has been working on developing a new system that
should help its officers readily identify aliens who are due for a post
order custody review and enable the officers to capture information on
the results of the review. However, these improvements are being made
in connection with a broader redesign of its detention and removal case
management system, and ICE officials did not know when the new system
would incorporate the enhanced capabilities. Until ICE can (1) provide
complete and timely information to deportation officers on when and for
whom post order custody reviews are due and (2) identify which custody
decisions were made pursuant to the Zadvydas decision, ICE will not be
in the best position to assure proper implementation of the Zadvydas
decision.
ICE does not have readily available information on how many aliens have
been released on orders of supervision pursuant to the Zadvydas
regulations or whether these aliens have met the conditions of their
release. When such aliens with final orders of removal are released
into communities in the United States, ICE is responsible for assuring
that the aliens meet the conditions of their release (e.g.,
periodically report to the ICE office, obey all laws, and continue to
seek to obtain travel documents). However, ICE cannot provide assurance
that aliens meet the conditions of their release, even for criminal
aliens who might pose a threat to the community, or that these aliens
can be found for removal. One reason for this lack of assurance is that
ICE's case management system, discussed earlier, cannot provide
deportation officers with a summary list of aliens released on orders
of supervision, an automatic notification of when the aliens are to
report in to ICE, and information regarding the aliens' compliance with
the conditions of their release. According to ICE officials, the new
case management system will eventually have these capabilities, but
these officials did not know when it will be in place. Another reason
for the lack of assurance, according to ICE officials and deportation
officers, is that there are not enough deportation officers to
effectively manage the range of duties and many cases that they are
assigned. These challenges notwithstanding, ICE has not determined how
many deportation officers it needs to manage the workload and has not
collected data that would enable it to make that determination. ICE
also has not prioritized the duties of its deportation officers and its
cases of aliens released on orders of supervision. Deportation officers
in some field offices have attempted to prioritize their supervision
cases, but ICE has not issued guidance to help its deportation officers
target their efforts on those aliens released on orders of supervision
who pose the greatest threat to public safety.
ICE has worked, with some success, with the Department of State and
foreign governments to try to overcome delays in obtaining travel
documents from some foreign governments. In addition, DHS and State
have signed a formal agreement to, among other things, foster
collaboration with each other in dealing with foreign governments that
refuse to issue or delay issuing travel documents for their nationals.
There are countries, such as Vietnam, Laos, and China, that have
consistently refused to issue travel documents or delayed issuing them,
according to ICE officials. ICE and State officials said that foreign
governments may decide not to issue travel documents if, for example,
the alien has not lived in that country for a long period of time, may
not have a means of support upon return, or has a criminal background.
State has the authority to deny visas to individuals from countries
that do not issue travel documents for the return of their nationals.
According to ICE and State officials, this authority has been used only
once because of concern about its potential negative impact on overall
diplomatic relations with other countries. ICE and State have worked
jointly to secure an agreement from the government of Cambodia for it
to issue travel documents for some of its nationals in return for U.S.
financial assistance with expenses related to the issuance of the
documents and reintegration of the alien into Cambodian society.
Because it is important for ICE to identify and do timely reviews for
cases subject to the Zadvydas decision, determine the extent to which
it has implemented the Zadvydas decision, and identify and track aliens
released on orders of supervision, we are making several
recommendations to the Secretary of the Department of Homeland
Security. The recommendations are intended to help ICE improve the
information it maintains on long-term detainees and supervision cases,
better determine its deportation officer staffing needs, and better
focus its limited resources by providing guidance to ICE deportation
officers on prioritizing their supervision caseloads.
We provided a draft of this report to the Secretary of DHS and to the
Assistant Secretary for ICE for their review and comment. On behalf of
DHS, the Assistant Secretary for ICE concurred with our recommendations
and commented on the actions ICE will take to implement them.
Background:
In its June 2001 Zadvydas v. Davis decision, the U.S. Supreme Court
established a presumptively reasonable period of time--specifically, up
to 6 months--that aliens with final removal orders can be detained if
their removal is not likely in the reasonably foreseeable future. Prior
to this decision, if aliens were determined to be a threat to the
community or posed a flight risk, they could be detained indefinitely
while their travel documents were sought.
In response to the Zadvydas decision, ICE issued interim regulations in
November 2001 amending its post order custody review process for
detained aliens with a final order of removal.[Footnote 5] These
interim regulations instituted new processes for determining whether
there is a significant likelihood of removing an alien in the
reasonably foreseeable future and whether there are special
circumstances justifying continued detention.[Footnote 6] In July 2001,
prior to the interim regulations being issued, the Attorney General and
ICE issued interim guidance for releasing detainees who were covered by
Zadvydas. The guidance from the Attorney General directed, among other
things, that ICE immediately renew efforts to remove all aliens in post
order detention, placing special emphasis on aliens who had been
detained the longest. The guidance from ICE explained, among other
things, the categories of aliens that were covered by the Zadvydas
decision and that released aliens should be subject to orders of
supervision.
Under the Zadvydas decision and implementing regulations, ICE is to
release an alien who has been held in detention for 180 days or more if
ICE determines that (1) the alien's removal is not likely to occur in
the reasonably foreseeable future and (2) the alien is not a "special
circumstance" case. A special circumstance case is one in which the
alien has a highly contagious disease, could pose a significant threat
to national security, could present adverse foreign policy consequences
if released, or has a mental health condition that may lead to violent
behavior. Under the regulations implementing the Zadvydas decision, ICE
is not supposed to consider whether the alien may be a threat to the
community or a flight risk in making the custody decision for aliens
who have been detained for 180 days or more. Instead, ICE is to release
such aliens on orders of supervision that prescribe the conditions of
their release.
DHS's ICE, which was established on March 1, 2003, handles immigration
enforcement functions in the country's interior.[Footnote 7] These
functions were previously the responsibility of the Immigration and
Naturalization Service (INS). Among its duties, ICE, through its Office
of Detention and Removals, is responsible for detaining and removing
aliens who violate U.S. immigration laws, and for assuring that aliens
released on orders of supervision have complied with the conditions of
their release. ICE is responsible for working with the consulates and
embassies of foreign governments to help removable aliens obtain travel
documents so that ICE can return them to their home countries. ICE
deportation officers are to conduct custody reviews--known as post
order custody reviews--for aliens who are held in detention after they
have received a final order of removal.[Footnote 8] The final order of
removal generally means that the alien has exhausted all appeals to
remain in the United States and is to be returned to his or her country
of origin or citizenship.
ICE regulations require its field offices to conduct a post order
custody review 90 days after a detained alien receives a final order of
removal.[Footnote 9] When conducting the 90-day review, ICE can decide
to continue to detain an alien if it (1) expects travel documents for
an alien to be forthcoming in the reasonably foreseeable future, (2)
determines that the alien has not cooperated with his or her removal
process, or (3) determines that the alien is a threat to the community
or poses a flight risk. Factors that are to be considered in
determining whether the alien is a threat to the community or a flight
risk include the detainee's criminal history, evidence of
rehabilitation, the number of close relatives residing in the United
States lawfully, and the alien's history in appearing for immigration
or other proceedings. The purpose of the post order custody review is
to determine whether to release the alien into the community until a
travel document is obtained and the alien can be removed, or to
continue to hold the alien in detention for another 90 days, pending
removal.
Aliens who continue to be detained after the 90-day post order custody
review are to receive another review by ICE headquarters as soon as is
practicable after 180 days in detention.[Footnote 10] Among other
things, the 180-day post order custody review is to consider whether
travel documents are likely to be obtained in the reasonably
foreseeable future and the alien is cooperating with his or her own
removal (e.g., by providing ICE deportation officers with personal
information required for a travel document). At this time, aliens
either qualify for review under regulations developed pursuant to the
Zadvydas decision or do not.[Footnote 11] For example, detained aliens
who were stopped at the border would not qualify for review under
Zadvydas and would be reviewed under the 90-day post order custody
review criteria as previously discussed.[Footnote 12]
When conducting the 180-day review for an alien who qualifies for
review under the Zadvydas regulations, ICE is to release the alien from
detention if (1) ICE does not expect travel documents for the alien to
be forthcoming in the reasonably foreseeable future and (2) no "special
circumstances," such as the alien being a national security risk,
exist. The alien is to be released from detention even if he or she is
deemed a threat to the community or poses a flight risk. When an alien
is released from detention as a result of a post order custody review,
the alien is to be issued an order of supervision that specifies
release conditions that the alien must meet. Aliens on orders of
supervision are to:
* report periodically to an ICE field office to provide information
required by the conditions of his or her release;
* continue efforts to obtain a travel document and assist ICE in doing
so;
* obtain advance approval of travel beyond previously specified times
and distances;
* provide ICE with a written notice of any change of address within 10
days of the change; and:
* report as directed for a mental or physical examination as directed
by ICE.
Figure 1 shows the factors that affect decision-making at the 90-and
180-day post order custody reviews. Additional information on ICE's
process for detaining and releasing removable aliens is contained in
appendix II.
Figure 1: Factors That Affect Aliens' Release from Detention:
[See PDF for image]
Note: If an alien has filed an action disputing his or her detention
(i.e., a petition for a writ of habeas corpus), and a court has ordered
a stay of the alien's removal, the calculation of the number of days
the alien has been detained with a final order does not begin until the
court rules that the alien is to be removed. (8 C.F.R. §
241.4(g)(1)(i)(B)).
[A] A post order custody review is to be conducted at 180 days or as
soon as practicable thereafter.
[B] ICE continues working to obtain travel documents after the alien is
released from detention.
[End of figure]
Relying on the Zadvydas decision, over 200 aliens have filed lawsuits
requesting relief from extended detention as of January 2004.[Footnote
13] The rulings in these Zadvydas decisions have generally been focused
on the facts of the individual case, especially on factors relating to
the length of time that the alien has been in custody and on the
circumstances surrounding the destination country's response to the
removal effort. Many of these lawsuits concern ICE's refusal to release
the alien because ICE believes that the travel documents would be
forthcoming in the reasonably foreseeable future. The following federal
district court cases are two examples of rulings in which federal
courts reached opposite conclusions on the likelihood that travel
documents would be issued:
* Kacanic v. Elwood:[Footnote 14] In the case brought by Fadil Kacanic,
a Yugoslav national, against Kenneth Elwood, ICE District Director, the
federal district court found that the alien, a Yugoslav national, had
shown good reason to believe that he would not be removed in the
reasonably foreseeable future. In reaching this conclusion, the court
relied on (1) the fact that the alien had already spent a full year in
custody, (2) that the Yugoslavian Embassy never offered any reason for
why obtaining travel documents was taking longer than normal and did
not provide any definitive answer about when travel documents would be
forthcoming, and (3) ICE failed to effectively rebut the alien's claim
that receiving travel documents was unlikely. The alien, who had 3
years of supervised release remaining from a sentence for a prior
federal offense, was released from ICE detention into the custody of
the Bureau of Prisons to serve the term of supervised release.
* Lema v. INS:[Footnote 15] In a case brought by Shibeshi Lema, an
Ethiopian national, against INS, the federal district court concluded
that the U.S. government and the alien, working together, should be
able to convince the government of Ethiopia that the alien is, in fact,
a native of Ethiopia. The court concluded that once citizenship was
established, it would be reasonable to expect Ethiopia will issue
travel documents. Although the court acknowledged that overcoming the
country's concern could take time and effort, the alien's deportation
was reasonably foreseeable once the legitimacy of the alien's
citizenship claim was resolved. Consequently, the alien was kept in
detention.
Appendix III contains additional discussion of case law pertaining to
the Zadvydas decision.
ICE's Case Management System Does Not Help Assure Timely Custody
Reviews and Hampers ICE's Ability to Determine whether the Reviews Are
Consistent with the Zadvydas Decision:
ICE's case management system is not designed to provide readily
accessible information on which aliens are due for a post order custody
review. Consequently, the system does not facilitate deportation
officers' efforts to assure that these reviews are done on time. ICE's
case management system is also not designed to identify cases reviewed
pursuant to the Zadvydas regulations. Therefore, the system does not
facilitate ICE's ability to determine (1) if custody decisions are
consistent with the Zadvydas ruling or (2) the extent of its compliance
with the Zadvydas regulations. Three of the four ICE field offices we
visited developed their own methods for trying to ensure timely
reviews. However, these methods do not automatically identify which
aliens are due for post order custody reviews and when these reviews
are to be conducted. Our review of 45 case files at ICE's Washington,
D.C., field office indicated that custody reviews were done on time in
42 cases. In the remaining 3 cases, custody reviews were either not
done or done late, raising the possibility that ICE did not comply with
the Zadvydas regulations in these cases. Because of weaknesses in its
case management system, ICE is not optimally positioned to carry out
its responsibilities, measure its performance, or determine its
compliance with the regulations stemming from the Zadvydas ruling.
ICE's Case Management System Does Not Help Assure the Timeliness of Its
Custody Reviews:
ICE has an outdated, difficult-to-use, inefficient case management
system that does not help it assure that post order custody reviews are
done after an alien has been detained with a final order for 90 days
and again at 180 days if the alien is still in detention. The system's
inability to notify deportation officers when post order custody
reviews are due could result in aliens being held longer than they
should be. ICE's current case management system, the Deportable Alien
Control System (DACS), does not meet internal control standards for
federal agencies set out by the Comptroller General as required by the
Federal Managers' Financial Integrity Act of 1982. These standards
state that effective information technology is critical to achieving
useful, reliable, and continuous recording of information and that
pertinent information should be identified, captured, and distributed
in a form and time frame that permits people to perform their duties
efficiently. Among DACS's limitations is that it lacks the capability
to automatically notify deportation officers when a custody review is
due for an alien. Although deportation officers can enter post order
custody review due dates and reminders in DACS to help them manage
their caseload, this approach relies on deportation officers manually
entering this information for each alien who might be eligible for a
post order custody review. Even when they do this, deportation officers
will not be automatically notified when the review is due. Instead,
they must periodically perform a specific case-by-case DACS query to
determine which aliens are due for a review.
ICE supervisors and managers can try to oversee the work of their staff
by querying DACS in the same way that a deportation officer can.
However, they are faced with the same tracking and notification
limitations as deportation officers. In its "Office of Detention and
Removal Strategic Plan, 2003-2012," ICE acknowledges the limitations of
DACS by characterizing it as a system that is not responsive to the
demands that today's operational environment places on it.
Because of DACS's inability to automatically identify which aliens are
due for post order custody reviews and when these reviews are to be
conducted, officials at three of the four ICE field offices we visited
developed their own methods for trying to ensure timely reviews. Field
office staff in these offices developed spreadsheets or lists of
aliens, identifying key dates, such as when a detained alien must be
notified about the review and when a review is due. The spreadsheets
and lists have one of the same basic limitations as DACS; that is, they
do not have automatic reminders that notify deportation officers when
post order custody reviews are due. The deportation officer must
proactively enter key information into the spreadsheet or add the
information to the list, and the officer must query each case
individually to determine when a review is due.
Although they did not have supporting evidence for their view, most of
the 33 individuals we spoke with in our 4 field office visits who were
responsible for post order custody reviews believed that the reviews
were always or almost always done on time. This belief was expressed by
14 of 15 deportation officers, 4 of 7 supervisory deportation officers,
and 10 of 11 field office and detention facility managers. Reasons
given for a review occasionally not being done on time included the
following: (1) other work may need attention, (2) a case that was
transferred from one field office to another may already have missed
the review date by the time the second office received it, (3) the
alien may be detained at a remote location and not readily available if
the deportation officer wants to perform a personal interview, or (4)
the case is simply overlooked. ICE field officials did not provide
information on how significant or widespread these reasons are for
causing a delayed review because they did not track such information.
Our review of a nongeneralizable sample of 45 case files at ICE's
Washington, D.C., field office indicated that in the vast majority of
cases, custody reviews were done on time. However, we identified 3
cases where the 180-day post order custody review was not done on time.
* In the first case, an ICE headquarters official told us that the 180-
day post order custody review was about 3 months late because they were
having difficulty verifying the alien's true identity. After the
alien's identity was determined, ICE conducted the custody review and
decided to detain the alien because they expected travel documents for
the alien to be issued in the reasonably foreseeable future. The alien
was removed about 1 month after the 180-day post order custody review.
* The second case involves an alien who had been in detention with a
removal order for almost 6 years and for nearly 3 years since the
Zadvydas decision by the Supreme Court. The alien has not had a post
order custody review as required by ICE regulations to determine
whether there is a significant likelihood of the alien's removal in the
reasonably foreseeable future. ICE records show that the alien has a
violent criminal history and, based on a psychiatric evaluation of the
alien, mental problems. However, the alien was still in detention and
the required post order custody review had not been conducted as of
February 2004. An ICE headquarters official said that Cambodian
government officials are expected to be in the United States in the
near future and may issue travel documents for the alien. Although ICE
officials provided an explanation for continuing to detain the alien,
they failed to justify why the required post order custody review was
not conducted.
* The third case involved an alien who received a final removal order
in October 2001 but was held in detention for an additional 21 months.
Although the alien's case was transferred to ICE headquarters in May
2002 (i.e., about 180 days after the removal order was issued, as
called for in the Zadvydas regulations), ICE headquarters did not
conduct a custody review for the alien until October 2002--a full year
after the alien was ordered removed. The October 2002 custody review
resulted in ICE deciding to release the alien provided that he posted a
$2,500 bond as a condition of release. According to an ICE headquarters
official, ICE decided to impose a bond because the alien had a violent
criminal history and prior parole violations. According to ICE
regulations, a bond may be required as a condition of release. Because
the alien did not pay the bond,[Footnote 16] he continued to be held in
detention for an additional 9 months. In July 2003, ICE removed the
alien from the United States. According to an ICE headquarters
official, the alien's removal took 21 months because the embassy for
the alien's country delayed issuing travel documents until they could
confirm his identity.
Because post order custody reviews were not conducted on time in these
cases, the possibility exists that ICE did not comply with Zadvydas
regulations.
ICE Is Developing a New Case Management System:
Recognizing the inefficient, cumbersome nature of DACS, ICE has begun
to develop a new automated detention and removal case management
system. According to ICE officials, the new system, called the
Enforcement Case Tracking System (ENFORCE) Removal Module (EREM), will
be a Web based system that is to be implemented in four
phases.[Footnote 17] The first phase will generally have the same
information as DACS, except it will be Web based and add such
enhancements as drop-down menus to aid in finding information easily.
According to these officials, each successive phase will have
additional capabilities. ICE plans to deploy each successive phase in
6-month increments. The officials said that EREM will eventually be
able to automatically identify which aliens are due for a post order
custody review and generate key information such as when aliens should
be notified of the review and when the review is to be done. However,
it is unclear when EREM will incorporate these capabilities. According
to ICE officials, ICE has encountered challenges in the development of
EREM. For example, an ICE official said that in tests, EREM has had
problems saving data when multiple users are entering and attempting to
save data into the system at the same time. Additionally, the official
said that programmers have experienced difficulty trying to incorporate
information from a number of DACS screens into a single EREM screen.
The implementation date for the first phase, originally scheduled for
December 2003, was changed to October 2004. However, in April 2004, ICE
was not satisfied with the performance of its contractor. As a result,
an ICE official who is tasked with overseeing development of EREM told
us that implementation dates for the first and subsequent phases have
not been established.
EREM initially will not fully meet ICE's needs because it will not
capture information on actions that can legitimately extend the length
of time that aliens can be detained. For example, aliens who obtain a
stay of their removal by filing a court action can be legitimately
detained until the court resolves the alien's case. In such instances,
ICE may continue to detain the alien, but the period of time that a
stay of removal is in effect does not count toward the 180 days that
ICE may keep an alien in detention. ICE officials refer to this as
"stopping the deportation clock." Once the court renders a decision and
the stay is lifted, the 180-day period begins over again. According to
an ICE headquarters official, ICE does not maintain data on the
frequency of stays of removal. As of February 2004, ICE had not decided
how or when EREM would capture information on events that start and
stop the deportation clock in order to calculate when the post order
custody review is due.
ICE's Case Management System Hampers ICE's Ability to Accurately
Determine whether Its Custody Reviews Are Consistent with the Zadvydas
Decision:
ICE is not in the position to determine whether its custody reviews are
consistent with the Zadvydas decision because ICE managers do not have
readily available information on (1) how many post order custody
decisions were made during a given period of time, (2) how many of
those decisions were made directly pursuant to the Zadvydas
regulations, and (3) what the results of those decisions were. DACS
does not capture data on these activities. According to an ICE
headquarters official, ICE has not assessed whether it is in compliance
with the Zadvydas regulations because to do so would require manually
reviewing each case file to obtain the necessary information. ICE
officials told us that EREM would capture such data, but they have not
yet identified when these specific enhancements will be incorporated
into the various phases of EREM deployment.
According to the Comptroller General's standards for internal control,
federal agencies need operating information to determine whether an
agency is achieving its compliance requirements under various laws and
regulations. ICE does not have readily available information to
determine its compliance with regulations pursuant to the Zadvydas
decision. Until such information is incorporated into and can be
readily retrieved from ICE's case management system, the system will
not meet internal control requirements and will continue to hamper
ICE's ability to determine the extent to which its custody
determinations are consistent with the Zadvydas decision.
ICE Lacks Assurance that Aliens Released on Orders of Supervision Met
the Conditions of Their Release:
Regulations implementing the Zadvydas ruling require that aliens
released because there is no significant likelihood of removal in the
reasonably foreseeable future should be supervised and could be
returned to custody if the conditions of supervision are violated.
ICE's deportation officers are to assure that aliens released on orders
of supervision have complied with the conditions of their release.
However, DACS is limited in its ability to identify aliens who have
been released on an order of supervision and, according to officials in
ICE headquarters and at the field locations we visited, staff shortages
make it difficult for deportation officers to assure that aliens have
met the conditions of their release. Although providing this assurance
is one of a number of duties assigned to deportation officers, ICE has
not provided deportation officers with guidance on how to prioritize
their duties or supervision cases. Consequently, ICE is unable to
determine whether and to what extent such aliens who have been released
on orders of supervision have met the conditions of their release.
Deportation Officers Are to Assure that Aliens Meet the Conditions of
Their Release:
Deportation officers are tasked with a number of duties in addition to
assuring that aliens comply with their orders of supervision. They are
responsible for all case management activity once an alien has been
brought into ICE custody until the alien has either been physically
removed from the United States or has transferred to a status enabling
the alien to stay within the United States. Deportation officers' case
management duties include:
* making alien custody determinations,
* establishing and maintaining liaison with foreign governments and
embassies or consulates to arrange for travel documents,
* assisting ICE and U.S. Attorneys in preparing cases where aliens have
appealed ICE actions,
* keeping track of whether aliens on orders of supervision have
reported in and complied with the conditions of their release, and:
* apprehending and arresting aliens who have absconded from ICE
custody.
In addition, deportation officers are responsible for noncase
management duties such as jail inspections; serving as hearing officers
for special cases, such as Cuban Review Panels; and providing
protective custody for aliens (e.g., aliens cooperating with U.S.
authorities in the criminal prosecution of others).
When an alien reports to an ICE field office as specified by an order
of supervision, the deportation officer is to question the alien about
his or her compliance with the conditions of release and record the
information in DACS and in the alien's file. Conditions of release
include requirements to obey all laws and to periodically report to an
ICE office and provide information on compliance with any other
conditions, such as continuing efforts to obtain travel documents and
notifying ICE of any address change. If the deportation officer
determines that the alien failed to report as required, or violated any
other condition of release, the officer is to take corrective action,
which may include locating and returning the alien to
detention.[Footnote 18]
ICE's Case Management System Cannot Automatically Generate Information
on Aliens Released on Orders of Supervision:
DACS, which is a database containing the names of about 1.7 million
aliens whose cases are active,[Footnote 19] including supervision
cases, is limited in its ability to help ICE deportation officers
determine whether aliens released on orders of supervision have met the
conditions of their release. In part, this is because DACS cannot
readily identify which aliens have been released on an order of
supervision or automatically notify deportation officers when an alien
fails to report to ICE as required by his or her conditions of release.
ICE field offices have to perform a case-by-case review to assemble a
comprehensive list of aliens on orders of supervision. Officials in 1
field office told us that they recently developed a unique identifying
code in DACS to help them identify which aliens have been released on
orders of supervision that they are responsible for monitoring.
However, such efforts do not overcome DACS's inability to automatically
provide deportation officers with a list of aliens who should be
reporting to them. DACS also does not automatically notify the
deportation officer that an alien released on an order of supervision
has failed to report as required. Instead, once an alien has been
released on an order of supervision, the deportation officer is to
manually enter the alien's required reporting dates into DACS and then
perform a case-by-case DACS query to determine which aliens are due to
report in.
ICE officials told us that EREM, the automated case management system
that ICE is developing, will help deportation officers monitor whether
aliens have met the conditions of their release. The officials said
that EREM will eventually have the ability to automatically identify
which aliens are released on orders of supervision and will
automatically notify deportation officers of the dates that aliens are
required to report to them. As noted earlier, however, ICE has
encountered delays in developing EREM and did not know when these
capabilities would be implemented.
ICE Officials Said Staffing Shortfalls and Heavy Workloads Impede Their
Ability to Monitor Aliens' Compliance with Orders of Supervision:
Officials at each of the 4 field offices we visited identified staffing
shortages and heavy workload as factors that impeded deportation
officers' ability to monitor aliens' compliance with their orders of
supervision. All 4 field office managers and all 4 supervisory
deportation officers who were responsible for cases of aliens released
on orders of supervision[Footnote 20] said that they needed additional
staff to improve the monitoring of aliens' compliance with orders of
supervision. Although he did not provide specific numbers, 1 field
office manager told us that deportation officers have so many cases
that it is difficult for them to assure alien compliance with orders of
supervision. Another manager told us that as of November 2003, the
office had 19 deportation officers responsible for approximately
131,000 cases of nondetained aliens, including an estimated 1,200 cases
of aliens released on orders of supervision.[Footnote 21]
All of the 13 deportation officers we spoke with who were responsible
for monitoring aliens' compliance with orders of supervision told us
that they have had difficulty assuring that aliens meet the conditions
of their release. For example, 1 deportation officer told us that the
large size of his caseload and his numerous additional duties, such as
jail inspections, interfered with his ability to monitor released
aliens' compliance with their orders of supervision. Similarly, another
deportation officer said that he is overwhelmed by his caseload and
does not know when aliens are not complying with orders of supervision.
He also said that even if he inadvertently learns that an alien is not
in compliance with an order of supervision, he does not have time to
investigate the case and take the appropriate action.
In one location that we visited, we observed an office area filled with
unopened boxes of files. A deportation officer told us that they were
the case files of aliens released on orders of supervision and that the
deportation officer responsible for those cases had been assigned on a
detail out of the office. The deportation officer noted that
supervision cases continued to be assigned to the detailed officer even
in his absence. He said that no one was monitoring those cases to
determine if the aliens had met the conditions of their release. He
further told us that the detailed officer's cases were not reassigned
to another officer because all the officers were already overwhelmed
with their own caseloads.
Our case file review showed that ICE deportation officers do not always
know whether aliens have complied with their orders of supervision. In
our review of 45 randomly selected cases at the Washington, D.C., field
office, we found that 12 aliens had been released on orders of
supervision. In 4 of the 12 cases, there was no evidence in the file
that the alien had ever reported to an ICE deportation officer; in
another 4 cases, there was evidence indicating that the alien reported
for some, but not all, of the required reporting times; and in the
remaining 4 cases, there was evidence indicating that the alien had
reported in for all required reporting times.
DACS data indicate the total number of aliens on orders of supervision
increased during a 7-year period, from about 1,300 in fiscal year 1997
to about 16,000 in fiscal year 2003.[Footnote 22] ICE officials said
that although these figures from DACS may not be precise, they believe
that they are a reasonable indicator of the growth in supervision
cases. [Footnote 23] However, these estimates do not include
deportation officers' case management duties for other nondetained
aliens. According to ICE officials, supervision cases are a small
percentage of the total caseload of deportation officers, but they did
not have data indicating what that percentage was. During the same time
period, from fiscal year 1997 through fiscal year 2003, the number of
ICE deportation officers on board increased from 461 to 611. Although
these figures show that ICE's supervision caseload grew at a faster
rate than the workforce assigned to handle the caseload, ICE officials
did not know how many deportation officers would be needed to handle
the caseload. ICE has acknowledged that its detention and removal
program does not have a reliable method for determining what the ratio
of cases to deportation officers should be.[Footnote 24] ICE officials
told us that they had not addressed this issue because they believed it
would be costly to develop a model that would reliably estimate their
deportation officer staffing needs for supervision cases and because of
other priorities.
Although deportation officers reportedly have difficulty managing their
caseloads, most of the deportation officers we interviewed said that
they did not prioritize their order of supervision cases to enable them
to focus on the most important ones. Specifically, of the 13
deportation officers we interviewed who were responsible for handling
order of supervision cases, 9 said that they did not prioritize their
order of supervision cases. Four of the 13 deportation officers said
that they did prioritize or had just begun to prioritize their order of
supervision cases, but each had established different priorities. For
example, 1 deportation officer said that he instructed aliens to report
to ICE more frequently if the aliens were from countries that were more
likely to provide travel documents so that he could arrange for removal
as soon as possible. Another deportation officer said that she
instructs aliens with criminal backgrounds to report to ICE more
frequently than noncriminal aliens.
Having uniform guidance for ICE officers is important because some
released aliens can pose a greater threat to society than others. For
example, an alien with a history of violent criminal behavior can
potentially be a greater danger to the community than a criminal alien
without a violent past or an alien with no criminal history. Although
the reportedly large workload of some deportation officers may make it
difficult for them to keep track of all supervision cases assigned to
them, ICE has not provided them with guidance on how to prioritize
their supervision cases. As a result, there exist potential risks
associated with such aliens being released into U.S. communities.
Determining how to mitigate such risks would entail considering factors
such as the significance of the risk and the likelihood or frequency of
its occurrence. Such an approach could help ICE determine how
deportation officers should prioritize their supervision cases when job
demands prevent them from doing a consistent and thorough job of
assuring alien compliance with orders of supervision.
ICE Has Had Some Success Working with the Department of State When
Travel Documents Are Difficult to Obtain:
ICE's ability to deport removable aliens is impeded when the aliens'
governments refuse to provide or delay providing travel documents for
them. ICE headquarters and field officials said that difficulties with
obtaining travel documents is the major problem they encounter in
attempting to remove aliens with a final removal order. The difficulty
in obtaining travel documents has a direct impact on the number of
aliens who either remain in detention or are released on orders of
supervision.
The process of obtaining travel documents can be complex and time-
consuming. ICE headquarters and field officials cited a variety of
reasons why governments may not want to issue a travel document for
their nationals, and these reasons may vary for aliens from the same
country depending on the individual alien's circumstances. For example,
if aliens have not lived in their country of origin for a long period
of time, their government may delay issuing the travel document until
it has assurance that the aliens will have the means to support
themselves when they are returned. The government may also want to
ensure that it can keep track of aliens with criminal backgrounds. In
its Detention and Removal Strategic Plan, ICE noted that the political
environment in various countries can also affect their travel document
policies.
According to ICE officials, several countries have consistently refused
to issue travel documents or delayed issuing them, thereby limiting
ICE's ability to return aliens to these countries. Specifically, ICE
officials mentioned that they have significant problems obtaining
travel documents from Cuba, Laos, Vietnam, China, India, Jamaica,
former Soviet Republics, Iraq, Iran, Eritrea, Ethiopia, Poland, and
Nigeria. Table 1 shows the numbers of aliens from Laos and Vietnam with
removal orders categorized by the criminality and detention status of
the aliens as examples of two countries where ICE officials reported
significant problems obtaining travel documents.
Table 1: Removable Aliens from Laos and Vietnam Awaiting Travel
Documents as of February 8, 2004:
Country: Laos;
Number of detained aliens with removal order: 101;
Number of nondetained aliens with removal order: 2,395.
Country: Laos; Criminal;
Number of detained aliens with removal order: 96;
Number of nondetained aliens with removal order: 1,715.
Country: Laos; Noncriminal;
Number of detained aliens with removal order: 5;
Number of nondetained aliens with removal order: 680.
Country: Vietnam;
Number of detained aliens with removal order: 301;
Number of nondetained aliens with removal order: 4,467.
Country: Vietnam; Criminal;
Number of detained aliens with removal order: 298;
Number of nondetained aliens with removal order: 4,243.
Country: Vietnam; Noncriminal;
Number of detained aliens with removal order: 3;
Number of nondetained aliens with removal order: 224.
Source: ICE DACS data.
[End of table]
Of the 402 aliens from Laos and Vietnam who were in detention as of
February 8, 2004, 97 had been in detention at least 180 days after
their removal orders. [Footnote 25]
According to ICE officials, China and India have a slow process for
verifying the alien's identity. The officials said that Chinese
consulates in the United States need approval from the Chinese central
government prior to issuing any travel documents and that Chinese
consulates can vary in how long it takes them to issue travel
documents. ICE officials told us that Chinese policies and guidelines
for issuing travel documents change frequently and this contributes to
delays in issuing travel documents. An ICE official said that it takes
Chinese consulates at least 2 to 3 months to issue travel documents,
but that in most cases it takes longer. With respect to India, ICE
officials said that India has a slow, complex process for verifying an
alien's citizenship. The officials said that although India has made
some changes in its process for issuing travel documents, the process
can still result in wait times that average between 6 and 8 months.
The Departments of Homeland Security and State have signed a formal
agreement to, among other things, foster collaboration with each other
in dealing with foreign governments that refuse to issue or delay
issuing travel documents for their nationals. Specifically, if a
foreign country continues not to cooperate in issuing travel documents
for its nationals, the Secretary of Homeland Security may notify the
Secretary of State of this situation. When notified, the Secretary of
State is to order U.S. consular officers in the foreign country to
discontinue issuing visas enabling citizens of those countries to come
to the United States.[Footnote 26] ICE and State officials told us that
this occurred on only one occasion. On September 7, 2001, the Attorney
General requested that the Secretary of State impose sanctions on
Guyana for refusing or unreasonably delaying issuing travel documents
for its nationals. On October 10, 2001, State discontinued granting
nonimmigrant visas to employees of the government of Guyana, their
spouses, and their children. Within 2 months, the government of Guyana
issued travel documents to 112 of the 113 Guyanese aliens who had been
ordered removed from the United States.[Footnote 27] On December 14,
2001, State lifted the visa sanction against Guyana.
ICE and State officials said that diplomatic, trade, and financial
issues may weigh against a decision to restrict visas. ICE and State
officials have expressed concern that applying visa sanctions can have
a negative impact on U.S. foreign and economic relations with other
countries. ICE and Department of State officials told us that the
informal threat of sanctions has been successfully used as leverage in
negotiating an agreement with one foreign country to facilitate the
removal of its nationals ordered removed from the United States.
ICE has successfully worked with the Department of State to develop a
formal agreement with one foreign government for obtaining travel
documents for its nationals. Specifically, ICE and State collaborated
to develop a formal agreement with the government of Cambodia. A
memorandum of understanding between the United States and Cambodia,
signed on March 22, 2002, laid out plans for establishing and operating
a joint commission on repatriation for certain removable aliens. An
addendum to the agreement, signed on August 27, 2003, allows ICE to
compensate Cambodia $300 per alien for the travel document application,
document search, verification expenses, and in-country relocation
travel expenses. The agreement also allows State to reimburse a
Cambodian nongovernmental organization of the department's choice $650
per alien for expenses related to the aliens' reintegration into
Cambodian society. The Cambodian government and the U.S. Embassy are to
jointly monitor the activities of the nongovernmental organization. The
work of this commission resulted in 78 Cambodians being removed from
the United States by January 20, 2004. Although 78 aliens were removed,
ICE data indicated that, as of February 2004, 1,203 Cambodians with
removal orders remained in the United States. Of these, 945 were
criminal aliens and 258 were noncriminal aliens; 109 were in detention
and 1,094 were not detained. Of the 109 Cambodians in detention, 41 had
been detained for more than 180 days after the removal order. ICE and
State officials said that they have been working informally to
negotiate an agreement with another country.
Conclusions:
ICE lacks complete, accurate, and readily available information to help
it assure that custody decisions are made in a timely fashion and the
regulations implementing Zadvydas are adhered to. Currently, ICE does
not know the extent to which aliens may or may not be accorded the
right to be released from detention as the Supreme Court intended. In 3
out of 45 cases, our work raised questions about whether custody review
decisions were consistent with the decision and implementing
regulations. Although ICE intends to deploy a new automated case
management system, it has not developed specific plans that would
indicate whether the system will meet internal control standards
required for federal agencies and whether, or when, deficiencies
discussed in this report will be addressed. ICE deportation officers
need readily available, reliable data on aliens who are due for post
order custody reviews to help assure that aliens are not kept in
detention longer than is necessary. Better data would also assist ICE
in effectively managing and overseeing its compliance with the Zadvydas
regulations.
ICE also faces challenges in assuring that aliens released on orders of
supervision have met the conditions of their release. Among other
things, ICE's case management system does not assist deportation
officers in efficiently identifying supervision cases, and a reported
shortage of deportation officers suggests it may be difficult for them
to perform all of their assigned duties. ICE does not know how many
cases deportation officers should manage or how many deportation
officers it needs to consistently monitor all supervision cases.
Without accurate and reliable data to inform its human capital
decisions, ICE will not be able to make informed judgments about its
staffing needs for monitoring released aliens' compliance with orders
of supervision. Despite its reported shortage of deportation officers,
ICE has not prioritized the duties or supervision cases of these
officers. Establishing priorities would help ICE focus on those aliens
who require more careful monitoring than others and potentially help
ICE manage the risk of releasing potentially dangerous aliens into
communities.
Recommendations for Executive Action:
To help assure that ICE's custody reviews are consistent with the
Zadvydas decision and implementing regulations, and to promote the
effective supervision of released aliens, we recommend that the
Secretary of DHS direct the Assistant Secretary for ICE, consistent
with the department's evolving systems integration strategy, to take
the following three actions:
* Ensure that ICE has complete, accurate, and readily available
information on (1) all detained aliens for whom 90-and 180-day post
order custody reviews are due, (2) how many post order custody reviews
have been made pursuant to the Zadvydas regulations and what decisions
resulted from those reviews, (3) which aliens are released on orders of
supervision, and (4) when aliens released on orders of supervision are
required to report to an ICE deportation officer.
* Develop a methodology for assessing how many staff are needed to
manage the supervision caseload and other duties assigned to
deportation officers, and use the results to support funding and
staffing requests.
* Develop and disseminate guidance that will enable deportation
officers to prioritize ICE's caseload of aliens on orders of
supervision so that ICE can focus limited resources on supervising
aliens who may be a threat to the community or who are not likely to
comply with the conditions of their release.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Secretary of DHS and the
Assistant Secretary for ICE for comment. On behalf of DHS, the
Assistant Secretary for ICE provided written comments on a draft of
this report that are reproduced in appendix IV. ICE concurred with all
three of our recommendations and discussed actions it will take to
implement them.
In the short term, ICE plans to utilize its existing DACS to maintain
complete, accurate, and readily available information on detainee
cases. This will include additional guidance and training for field
offices and a headquarters review of all Zadvydas cases. In the long
term, ICE plans to develop EREM as a new case management system that
incorporates the information we recommend in this report.
The Assistant Secretary also said that ICE will develop a methodology
and model to assess the number of staff necessary to effectively manage
its alien docket and use the results of this assessment to support
funding and staffing requests, as we recommended. ICE also will review
current guidance and make necessary changes to ensure that deportation
officers are able to prioritize their caseload of aliens released on
orders of supervision. He stressed that ICE seeks to manage and
properly supervise Zadvydas cases and is exploring the use of
alternatives to detention to determine whether they may be applied to
these cases.
As arranged with your offices, unless you publicly announce its
contents earlier, we plan no further distribution of this report until
30 days after its issue date. At that time, we will send copies of this
report to the Secretary of the Department of Homeland Security and
interested congressional committees. We will also make copies available
to others upon request. In addition, the report will be available at no
charge on GAO's Web site at http://www.gao.gov. Major contributors to
this report are listed in appendix V.
If you or your staffs have any questions concerning this report, please
contact me on (202) 512-8777.
Richard M. Stana:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
With reference to how the U.S. Immigration and Customs Enforcement
Bureau (ICE) has implemented the Zadvydas v. Davis decision, this
report addresses the following objectives: (1) What information does
ICE have to assure that custody reviews are timely and result in
decisions that are consistent with the Zadvydas decision and
implementing regulations? (2) How has ICE assured that aliens released
on orders of supervision have met the conditions of their release? (3)
When foreign governments refuse or delay issuing travel documents for
the aliens to be removed to their countries, what efforts has ICE made
to overcome these obstacles, and what are the results of those efforts?
To address the first two objectives, we interviewed officials at ICE
headquarters and its Washington, D.C.; Los Angeles, Calif., Chicago,
Ill., and New Orleans, La., field offices. We visited these field
offices because they had relatively large numbers of aliens who were
detained for longer than 180 days and they were geographically
dispersed. We interviewed 11 ICE managers of field offices and
detention facilities. Four of these 11 were responsible for post order
custody reviews and supervision cases. Seven of the 11 were responsible
only for post order custody reviews because they were detention
facility managers. Also, we interviewed 9 supervisory deportation
officers. Two of the 9 were responsible for post order custody reviews
and supervision cases. Five of the 9 were responsible for post order
custody reviews and 2 were responsible for supervision cases. We
interviewed 28 deportation officers. Fifteen of the deportation
officers were responsible for post order custody reviews and 13 were
responsible for supervision cases. We also reviewed a randomly selected
sample of 45 out of 140 case files of long-term detainees at ICE's
Washington, D.C., field office. Because ICE officials told us that ICE
does not maintain a database of cases that meet the Zadvydas standard,
we asked ICE for a list of aliens with final removal orders who either
(1) were being held in ICE detention for at least 180 days as of March
3, 2003, when ICE developed the list of cases or (2) had been held in
ICE detention for at least 180 days but were released from detention or
removed from the United States between July 1, 2001, and March 3, 2003.
This list would contain the population of cases that would most likely
be cases eligible for post order custody reviews using the Zadvydas
standard. Because the Deportable Alien Control System (DACS) does not
identify whether an order of removal is final or not, the list
consisted of aliens with orders of removal, but not necessarily final
orders of removal. According to an ICE official, the list also did not
include thousands of cases where the date of the order of removal was
missing from DACS because it was not possible to compute the number of
days in detention since the removal order in such cases. Of 5,739 cases
that ICE generated using this criteria, 140 were listed as being
assigned to the Washington, D.C., field office. We randomly selected 50
cases from the 140 and asked ICE to provide us with its case files. ICE
was unable to provide us the case files of 5 of the 50 cases that we
requested because the files could not be located at the time of our
file review. Using a structured data collection instrument (DCI), we
reviewed the remaining 45 case files to determine the timeliness of
post order custody reviews and ICE's efforts to monitor aliens'
compliance with orders of supervision. Some of the questions on our DCI
were intended to check the accuracy of the DACS data used to produce
the case list, and from these questions we determined that these cases
were correctly selected. The information obtained from the case file
review may not be generalized to all long-term detainee cases in ICE's
Washington, D.C., office or to ICE nationwide. We assessed whether
ICE's case management system met the Comptroller General's standards
for internal control for federal agencies. We also interviewed ICE's
Office of Detention and Removals Acting Chief for Program Analysis and
Information Technology regarding the development of ICE's new case
management system. We reviewed available documentation regarding the
implementation of post order custody reviews at ICE headquarters and
its field offices. We also reviewed available documentation regarding
how ICE monitors aliens' compliance with orders of supervision.
To determine what efforts ICE has made to overcome obstacles when
governments refuse or delay the issuance of travel documents, we
reviewed available documentation, interviewed ICE headquarters and
field officials, and interviewed Department of State officials
regarding their coordination with ICE in obtaining travel documents for
removable aliens.
We conducted our review from December 2002 to March 2004 in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: ICE's Basic Custody Review and Supervision Process for
Long-Term Detainees with Final Orders of Removal:
ICE deportation officers are to conduct custody reviews for aliens who
have been in detention for 90 days after the aliens receive a final
order of removal. This initial 90-day detention period is referred to
as the "removal period." Specifically, the post order custody review
process calls for a number of steps to occur:
* Aliens are to be served a Notice of Review for the initial post order
custody review approximately 30 days in advance of the pending review.
This notice is to provide instructions to the alien on evidence or
documentation that may be considered during the 90-day post order
custody review. If the alien or his or her representative requests
additional time to prepare materials, then the requirement that the
custody review occur before the end of the 90-day removal period may be
waived. The deciding official may base the post order custody review
solely on a file review or may augment the file review with a
telephone, videoconference, or personal interview.
* The initial 90-day post order custody review decision is to be made
by the ICE field office having jurisdiction over the alien.[Footnote
28] At that point, if a travel document is not available to return the
alien to his or her country, ICE may decide to continue to hold the
alien in detention or release the alien into the community subject to
conditions of release.[Footnote 29]
* When the field office advises the alien at the 90-day post order
custody review that he or she will remain in custody pending removal,
ICE is to conduct a second post order custody review once the alien has
served a total of 180 days in detention.[Footnote 30]
Factors that affect the manner in which the alien's days in detention
are calculated include the following:
* If the alien has filed a court action and is granted a stay of
removal, then the "deportation clock" stops. That is, the counting of
the days in detention is stopped while the stay of removal is in
effect, and, based on the results of a post order custody review, ICE
may continue to detain the alien until the court decides the alien's
case. Once the court case is resolved, the removal period starts over
again, with the date of the court decision counting as the first day of
detention.[Footnote 31]
* If the alien fails or refuses to make timely application for travel
documents necessary for his or her departure, or otherwise conspires or
acts to prevent his or her removal, the removal period is suspended
until the alien begins to cooperate in facilitating his or her own
removal.[Footnote 32]
In December 2000, ICE published a regulation to centralize the custody
review process at ICE headquarters for certain detainees with final
removal orders. Specifically, the regulation called for the District
Directors to conduct the initial custody determination prior to the
expiration of the 90-day removal period. After the 90-day period, at
the discretion of the field offices, an alien's case could be referred
to ICE headquarters or retained in the field. ICE field offices were to
refer the alien's case to headquarters when the alien completed 180
days in detention following a final order of removal. ICE established a
headquarters Post-Order Detention Unit (HQPDU) to make all future
custody determinations after the referral.
In its June 2001 ruling in Zadvydas v. Davis, the U.S. Supreme Court
concluded that detaining aliens for up to 6 months following a final
order of removal is "presumptively reasonable." Otherwise, except when
"special circumstances" exist, the alien must be released on an order
of supervision. Special circumstances that justify continued detention
beyond 180 days occur when (1) the alien has a contagious disease, (2)
the alien is deemed "specially dangerous," for example, having a mental
condition that predisposes him or her to be violent, (3) the alien's
release poses adverse foreign policy consequences, or (4) the alien
poses a threat to national security. The Court also held that the alien
may be held in detention past the 6-month period if the government
determines that there is a significant likelihood of his or her removal
in the reasonably foreseeable future. Aliens may also be kept in
detention if they fail to cooperate with the removal process.
Factors That Affect Aliens' Release from Detention after the 90-Day
Post Order Custody Review:
The 90-day post order custody review may result in a decision to
further detain or to release the alien. Factors that would result in a
decision to continue to detain the alien include (1) the alien not
complying with requirements to assist in his or her removal,[Footnote
33] (2) a significant likelihood of removing the alien in the
reasonably foreseeable future, and/or (3) the alien being considered a
threat to the public or a flight risk if released. When none of these
three conditions exists, the alien is to be released from detention on
an order of supervision with required conditions.
Factors That Affect Aliens' Release from Detention after the 180-Day
Post Order Custody Review:
The 180-day post order custody review may result in a decision to
further detain or to release the alien. Aliens fall into either of two
categories: those who do or do not qualify for a post order custody
review under the Zadvydas regulations.
* The following categories of aliens do qualify under the Zadvydas
regulations: aliens ordered removed from the United States who either
initially entered legally or those who entered without inspection. If
ICE deportation officers (1) do not expect travel documents for an
alien to be forthcoming in the reasonably foreseeable future and (2) no
"special circumstances" exist, then the alien is to be released from
detention even if he or she is deemed a threat to the community or
poses a flight risk.[Footnote 34]
* The following categories of aliens do not qualify for review under
the Zadvydas regulations: (1) aliens who do not cooperate with ICE in
facilitating the process of obtaining their travel documents; (2)
arriving aliens (e.g., stopped at the border, granted temporary
permission to enter the United States, or Mariel Cubans[Footnote 35]);
and (3) aliens who are ordered removed by the Alien Terrorist Removal
Court pursuant to Title 5 of the Immigration and Nationality
Act.[Footnote 36] This group of aliens, with the exception of Mariel
Cubans, is subject to the 90-day post order custody review criteria--
which enable ICE to continue the alien's detention if the alien is
deemed a threat to the community or a flight risk.[Footnote 37] When
neither of these two conditions applies, the alien should be released
from detention on an order of supervision.
Aliens who received a review pursuant to the Zadvydas regulations but
were denied release can request additional post order custody reviews
under the Zadvydas criteria every 6 months.
Orders of Supervision:
All aliens released based on a post order custody review are to be
released on an order of supervision, specifying conditions the alien is
to meet. An order of supervision includes the following conditions,
among others. The alien is:
* required to appear before an immigration officer periodically for
identification;
* required to submit, if necessary, to a medical and psychiatric
examination at the expense of the U.S. government;
* to continue efforts to obtain a travel document and assist ICE in
obtaining a travel document;
* to obtain advance approval of travel beyond previously specified
times and distances; and:
* to provide ICE with written notice of any change of address within 10
days of the change.
An order of supervision may also include any other conditions that
HQPDU considers necessary to ensure public safety and guarantee the
alien's compliance with the order of removal.
Any alien who has been released on an order of supervision who violates
any of the conditions of release may be returned to custody and may be
subject to a fine of not more than $1,000 or imprisonment for not more
than 1 year, or both.[Footnote 38] In some cases, HQPDU can refer the
case to the appropriate U.S. Attorney for criminal prosecution. The
alien may then be detained for an additional 6 months in order to
effect the alien's removal, if possible.
[End of section]
Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision:
In Zadvydas v. Davis, the U.S. Supreme Court ruled on one aspect of the
lawfulness of indefinite detention.[Footnote 39] The Court held that
Section 241(a)(6) of the Immigration and Nationality Act, (8 U.S.C.
1231(a)(6)),[Footnote 40] read in light of due process protections for
aliens who have been admitted to the United States, generally permits
the detention of aliens who are under a final order of removal only for
a period reasonably necessary to bring about their removal from the
United States. The Court held that detention of such aliens beyond the
statutory removal period, for up to 6 months after entry of a final
removal order, is "presumptively reasonable." After 6 months, if an
alien can provide "good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future," the
government must rebut the alien's showing to continue the detention. If
the government cannot meet that standard, then in general, the
government must release the alien. Finally, the Supreme Court indicated
that there may be cases involving "special circumstances," such as
terrorists or other especially dangerous individuals in which continued
detention might be appropriate even if removal is unlikely in the
reasonably foreseeable future.
Attorney General Guidance and Regulations:
In July 2001, about 3 weeks after the Supreme Court's Zadvydas
decision, the Attorney General issued interim guidance for releasing
detainees who were covered by Zadvydas. According to this guidance,
arriving aliens and aliens ordered removed on an order of exclusion do
not fall within the classes of aliens covered by the decision. For
example, aliens seeking admission, excludable aliens, Mariel Cuban
parolees, and other parolees would not be covered by the Supreme
Court's analysis.[Footnote 41] ICE issued interim regulations in
November 2001 amending the custody review process governing the
detention of aliens subject to a final order of removal.[Footnote 42]
Judicial Application of Zadvydas Standards:
Many aliens have filed lawsuits demanding relief under Zadvydas from
indefinite detention. A brief discussion of some of the issues that
have been litigated and the courts' rationale for their holdings
follows:
In order to be granted relief from post removal order detention
pursuant to Zadvydas, an alien must make a two-part showing. See Fahim
v. Ashcroft, 227 F. Supp. 2d 1359, 1362, 1363 (N.D. Ga. 2002), relying
on Akinwale v. Ashcroft, 287 F. 3d 1050 (11th Cir. 2002):
1. The alien must first show that he or she has been detained beyond
the 6-month period that the U.S. Supreme Court declared to be a
presumptively reasonable time to detain a removable alien awaiting
deportation;
2. The alien must provide good reason to believe that there is no
likelihood of removal in the reasonably foreseeable future.
Regarding the first point, there has been litigation on the calculation
of the 6-month period. As discussed in the Fahim case cited above, a 6-
month custodial period of time following the order of removal must have
elapsed prior to the filing of a habeas corpus petition challenging the
confinement under Zadvydas. In Fahim, the court concluded that the 6-
month period was tolled[Footnote 43] during the time the alien acted to
prevent his removal. In support of this conclusion, the court cited 8
U.S.C. 1231(a)(1)(C), which provides that the "removal period shall be
extended—if the alien—acts to prevent the alien's removal subject to an
order of removal."[Footnote 44]
There has also been litigation on whether the decision rendered by the
Immigration judge was a final order. For instance, in Habtegaber v.
Jenifer, 256 F. Supp. 2d 692 (E.D. Mich. 2003), the court concluded
that the alien's order of removal became final on the date that the
immigration judge determined that the alien was removable and issued
the removal order. Thus, the presumptively reasonable 6-month period
for the alien's detention following the removal order commenced on that
date, rather than on the date that the alien withdrew his appeal of the
removal order to the Board of Immigration Appeals.
Regarding the second point, courts have held that an alien must provide
good reason to believe there is no likelihood of removal in the
reasonably foreseeable future. In making this determination, courts
have taken into account the amount of time the alien has been in
custody, the actions of the foreign government in responding to
requests for travel documents, and the actions of the government. Also,
where appropriate, the courts have taken into account whether the
petitioner has cooperated in seeking to obtain the requisite travel
documents.
In Kacanic v. Elwood, 2002 WL 31520362 (E.D. Pa. Nov. 8, 2002), the
federal district court found that the alien had shown good reason to
believe that he would not be removed in the reasonably foreseeable
future. In reaching this conclusion, the court relied on the amount of
time that the alien had already spent in custody, the inaction of the
Yugoslavian Embassy, and the admissions of the government. At the time
of the litigation, the alien had spent 1 year in detention awaiting his
removal. The court also found that for 10 months, the foreign consulate
had been in possession of all the information the government was
capable of providing. The court pointed out that during this time the
consulate never stated that the alien was likely to be granted travel
documents. Nor had the consulate even been able to tell the government
when a decision would be reached and never offered any reason why
obtaining travel documents in this case took longer than normal. The
court concluded that considering this lack of any definitive answer, or
any indication that a definitive answer was likely soon, there was no
legitimate reason to believe that removal would occur in the reasonably
foreseeable future.[Footnote 45] The court also concluded that the
government failed to present competent evidence to rebut the alien's
showing that there was no significant likelihood that removal would
occur in the reasonably foreseeable future. "[O]ther aliens having been
removed to Yugoslavia in the past is not a credible indication [as the
government argued] that this alien will be removed in the near future."
The court concluded, "[i]t simply does not follow from the fact that
Yugoslavia has not said "no" that they must be ready to say "yes"
within the foreseeable future." The court noted several delays in
government efforts to remove the alien activity and concluded that the
lack of effort "only reinforces this Court's conclusion that removal in
the near future does not seem likely." 2002 WL 31520362 at *3-5.
Another district court reached the opposite conclusion in Lema v. INS,
214 F. Supp. 2d 1116 (W.D. Wash. 2002). In Lema, the court determined
that in this particular instance, the continuing failure of a
destination country to respond to a request for travel documents did
not provide the court with "good reason to believe" that deportation is
not likely in the reasonably foreseeable future. The court reasoned
that the government and the alien, working together, should be able to
convince the government of Ethiopia that the alien is in fact, a native
of that country. More specifically, the court provided that the
"[p]etitioner [the alien] has provided no reason to believe that, once
Ethiopia's legitimate concerns are addressed, travel documents will not
issue in the foreseeable future. Of course, overcoming the Ethiopian
government's current misunderstanding (which has undoubtedly been
memorialized in various reports and decision documents) may take some
time and effort, but petitioner's [the alien's] deportation remains
reasonably foreseeable even though it may not happen quickly." Lema,
214 F. Supp. 2d at 1118.
Judicial Action Regarding the Expansion of the Zadvydas Holding:
There have been lawsuits petitioning courts to extend the Zadvydas
holding to cover inadmissible aliens stopped at the border while
attempting to enter.[Footnote 46] Recent decisions in the U. S. Courts
of Appeals for the Ninth[Footnote 47] and Sixth Circuits[Footnote 48]
have applied the Supreme Court's analysis in Zadvydas to these aliens.
The government's position has been that the Zadvydas holding is limited
to those aliens who had been "admitted" or gained "entry" into the
United States. It interprets the Supreme Court's ruling as not
governing those aliens who are legally still at our borders as arriving
aliens. This would include those who have been paroled into the country
such as the Mariel Cubans, who are treated as still seeking
admission.[Footnote 49]
The U.S. Courts of Appeals for the Third, Fifth, Seventh, Eighth, and
Eleventh Circuits have issued decisions that agree with the
government's interpretation of Zadvydas.[Footnote 50]
The U.S. Courts of Appeals in the Ninth and Sixth Circuits, however,
have taken a different view. In Rosales-Garcia, the Court of Appeals
for the Sixth Circuit acknowledged that the aliens it was dealing with
were inadmissible, unlike the aliens in Zadvydas who were removable.
Nonetheless, the court concluded that the holding in Zadvydas extended
to inadmissible aliens because the Supreme Court interpretation of
section 1231(a)(6) made no distinction among the categories of aliens
listed. That is, the holding addresses the statute as a whole and thus
applies to not just removable aliens--but to all the categories of
aliens listed in section 1231(a)(6). Therefore, in Rosales-Garcia, the
U.S. Court of Appeals for the Sixth Circuit concluded that the implicit
reasonable time limitation applies to aliens who are inadmissible under
section 1182.[Footnote 51]
[End of section]
Appendix IV: Comments from the Department of Homeland Security:
Office of the Assistant Secretary:
U.S. Department of Homeland Security
425 I Street, N. W.
Washington, D.C. 20536:
U.S. Immigration and Customs Enforcement:
May 17, 2004:
Richard M. Stana:
Director, Homeland Security and Justice Issues:
U.S. General Accounting Office
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Stana:
We have received your draft report, Immigration Enforcement: Better
Data and Controls Are Needed to Assure Consistency with the Supreme
Court Decision on Long-Term Alien Detention GAO-04-434 (440174) and
appreciate being provided the opportunity to comment. Below we have
commented on each recommendation as well as on information presented in
the report.
Recommendation 1: Ensure that ICE has complete, accurate, and readily
available information on (1) all detained aliens for whom 90-and 180-
day post order custody reviews are due, (2) how many post order custody
reviews have been made pursuant to Zadvydas regulations and what
decisions resulted from those reviews, (3) which aliens are released on
orders of supervision, and (4) when aliens released on orders of
supervision are required to report to an ICE deportation officer.
We concur and the Office of Detention and Removal Operations is
currently developing a new case management system (ENFORCE Removals
Module (EREM)) and the requirement for this recommendation has been
incorporated into the functional requirements documentation of this new
system. Development of EREM is a high priority, but performance issues
have caused the delay of the implementation of EREM until fiscal year
2005, thus making it a long-term solution to this problem.
ICE will continue to utilize the existing Deportable Alien Control
System (DACS) to maintain complete, accurate, and readily available
information on these cases. ICE has issued guidance to the field on
specific procedures that must be followed in Zadvydas cases, as well as
implemented a DRO headquarters review function for all Zadvydas cases.
ICE is developing additional guidance and training to assist the field
offices in meeting this requirement.
Recommendation 2: Develop a methodology for assessing the number of
staff needed to manage the supervision caseload and other duties
assigned to deportation officers, and use the results to support
funding and staffing requests.
We concur and the Office of Detention and Removal Operations will
develop a methodology and model to assess the number of staff necessary
to effectively manage the alien docket, which includes aliens released
on an order of supervision, as well as performing other duties for
which deportation officers are responsible. The results of this
assessment will be utilized to support funding and staffing requests.
Recommendation 3: Develop and disseminate guidance that will enable
deportation officers to prioritize ICE's caseload of aliens on orders
of supervision so that ICE can focus its limited resources on
supervising aliens who are identified as a possible threat to the
community or who are not likely to comply with the conditions of their
release.
We concur and will review current guidance and make necessary changes
to ensure that deportation officers are able to prioritize their
caseload of aliens released pursuant to orders of supervision. Current
ICE policy is to keep in custody those aliens who may pose a threat to
the community, or pose a flight risk. However, under the Zadvydas
decision, there are instances where ICE is required to release aliens
who may pose a threat to the community. When this occurs, ICE seeks to
manage and properly supervise these cases to ensure to the maximum
extent possible the safety of U.S. communities, including placing
additional conditions on aliens being released pursuant to the Zadvydas
decision. ICE is also exploring the use of alternatives to detention
(such as electronic monitoring) to determine whether they may be
applied in this context.
Thank you again for the opportunity to respond to the draft report. If
you have any questions, please contact Eddie L. Carlisle, Audit
Liaison, U.S. Immigration and Customs Enforcement, at (202) 305-0132.
Sincerely,
Signed by:
Michael J. Garcia:
Assistant Secretary:
[End of section]
Appendix V: GAO Contacts and Acknowledgments:
GAO Contacts:
Richard M. Stana (202) 512-8777 Evi L. Rezmovic (202) 512-8777:
Acknowledgments:
In addition to the above, David Alexander, Shawn Arbogast, Leo Barbour,
Grace Coleman, Ann Finley, Mark Macauley, Jan Montgomery, Sam Van
Wagner, and Keith Wandtke made key contributions to this report.
FOOTNOTES
[1] 533 U.S. 678 (2001).
[2] ICE was established on March 1, 2003, as part of the newly formed
DHS (Homeland Security Act of 2002 (Pub.L.No. 107-296, 116 Stat.
2135)). Prior to that time, immigration enforcement functions were the
responsibility of the Immigration and Naturalization Service, which has
been abolished. In some instances, events that we refer to occurred
prior to March 1, 2003. For ease of presentation, in this report we
refer to "ICE" as the immigration agency responsible for implementing
the Zadvydas decision even if events cited in the text occurred prior
to March 1, 2003.
[3] Timely conduct of post order custody reviews means that ICE
conducts a post order custody review as promptly as possible on or
after the date that an alien with a final order of removal reaches 180
days in detention. See 8 C.F.R. §241.4(k)(2)(ii) and 8 C.F.R.
§241.4(k)(2)(iv). According to the Deputy Assistant Director, ICE
Office of Detention and Removals, Case Management Division, the
complexities of the case and the availability of ICE personnel can
affect how promptly the post order custody review is conducted.
[4] The Washington, D.C., field office is located in Arlington, Va.
[5] Interim Regulations, Continued Detention of Aliens Subject to Final
Orders of Removal, 66 Federal Register, 56967 (2001).
[6] 8 C.F.R. §§ 241.13 and 241.14.
[7] When INS was abolished, responsibility for protecting the U.S.
borders was assigned to DHS's Bureau of Customs and Border Protection.
[8] 8 C.F.R. Part 241.
[9] This 90-day period is referred to as the "removal period."
[10] ICE field offices are to send a memorandum to ICE headquarters
updating the status of the case.
[11] 8 C.F.R. § 241.13.
[12] Aliens who do not qualify for a post order custody review under
the Zadvydas decision and resulting regulations are as follows: (1)
aliens who do not cooperate in facilitating their removal; (2) arriving
aliens (a) stopped at the border, (b) granted temporary permission to
enter the United States, and (c) who are Mariel Cubans, a group of
aliens who, in 1980, attempted to enter the United States as part of a
mass migration from Cuba without documentation permitting them legal
entry; and (3) aliens ordered removed by the Alien Terrorist Removal
Court. This court was established in 1996 (8 U.S.C. §§ 1531-1537).
[13] Aliens may obtain legal counsel at their own expense. 8 U.S.C. §
1362.
[14] 2002 WL 31520362 (E.D. Pa. Nov. 8, 2002).
[15] 214 F. Supp. 2d 1116 (W.D. Wash. 2002).
[16] The alien's file contained no information indicating that he paid
the bond. According to ICE officials, an alien in this situation can
request a redetermination of the bond and provide evidence of financial
inability. ICE would then reassess the bond requirement and make a
decision to reduce the bond amount, release the alien without a bond,
or continue to detain him. There was no information in the alien's case
file indicating whether or not the alien was informed that he could
seek a bond redetermination. According to an ICE official, ICE began
notifying aliens in writing in 2003 that they could request a
redetermination of a bond amount.
[17] ENFORCE is used to support ICE's tracking and management reporting
of enforcement cases. Specifically, the system documents and tracks the
investigation, identification, apprehension, detention, and/or removal
of alien immigration law violators. EREM is to be a module within
ENFORCE, specifically the ENFORCE Removals Module.
[18] If an alien violates the conditions of the order of supervision, a
complete review of the circumstances surrounding the violation is to
occur in order to determine whether to revoke the order of supervision.
In addition, an informal interview with the alien is to be conducted so
that the alien can respond to the reasons for the revocation. The alien
may be detained following the interview and may also be prosecuted for
violating the order of supervision.
[19] An active case is one in which either the alien is currently in
removal proceedings or the alien's case was closed during the past 2
fiscal years.
[20] In our field visits, we interviewed 4 supervisory deportation
officers who were responsible for cases of aliens released on orders of
supervision, 2 of whom were also responsible for post order custody
reviews, and an additional 5 supervisory deportation officers who were
responsible for post order custody reviews.
[21] Nondetained aliens include those released into the community while
still waiting for determination of their immigration status or removal.
[22] To provide us with figures on how many aliens were on supervision
orders, ICE tasked a contractor with writing a special computer program
to generate the information.
[23] ICE could not provide the margin of error for these data.
[24] Office of Detention and Removal Strategic Plan, 2003-2012, ICE,
June 2003.
[25] According to the ICE official who provided the data, DACS does not
contain data on whether a removal order was final.
[26] Section 243 (d) of the Immigration and Nationality Act (8 U.S.C. §
1253(d)) and the memorandum of agreement between DHS and the State
Department prescribe how this action should be taken. Prior to the
creation of the DHS in 2003, the Attorney General had this
responsibility.
[27] One individual had died.
[28] 8 C.F.R. § 241.4(c)(1).
[29] 8 C.F.R. § 241.4(j)(1).
[30] 8 C.F.R.§ 241.4(k)(2)(ii).
[31] 8 U.S.C. § 1231(a)(1)(B)(ii).
[32] 8 U.S.C. § 1231(a)(1)(C).
[33] If an alien refuses to make timely application for travel
documents or conspires or acts to conspire to prevent his or her
removal, the alien's removal period is to be extended, and the alien
may remain in detention during such extended period. A post order
custody review is to be done and a Notice of Failure to Comply is to be
served on the alien advising him or her of the reason for the extension
of the removal period and the actions needed to restart the calculation
of the removal period. Aliens are to be considered for criminal
prosecution if they fail to cooperate with the removal process.
[34] In all "special circumstances" cases that fall into the category
of "contagious disease" or "specially dangerous," HQPDU is to refer the
case to the Public Health Service for certification of the condition.
For an alien determined to be "specially dangerous" by ICE
headquarters, the decision to detain is to be forwarded to an
immigration judge for review. If the judge rules against ICE, then ICE
may appeal the case to the Board of Immigration Appeals.
[35] "Mariel Cubans" are a group of approximately 129,000 aliens who
fled Cuba by boat in 1980 and attempted to enter the United States
without documentation. Most of these aliens have been in the United
States since that time and, in some instances, paroled into the
community. They are not considered to have legally entered the United
States. Custody determinations for Mariel Cubans are made by Cuban
Review Panels under the procedures in 8 C.F.R. §212.12.
[36] The Alien Terrorist Removal Court was established in 1996 by the
Antiterrorism and Effective Death Penalty Act of 1996 (8 U.S.C. §§
1531-37).
[37] Mariel Cubans have their own Review Panel separate from this post
order custody review process.
[38] 8 U.S.C. § 1253(b).
[38] 533 U.S. 678 (2001).
[39] Section 1231(a)(6) provides that: "An alien ordered removed who is
inadmissible under section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title [for violations
of nonimmigrant status or entry conditions, violations of criminal
laws, or threatening national security] or who has been determined by
the Attorney General to be a risk to the community or unlikely to
comply with the order of removal, may be detained beyond the removal
period and, if released, shall be subject to the terms of supervision
in paragraph (3)."
Kestutis Zadvydas, a resident alien of the United States, was born
apparently of Lithuanian parents in a displaced persons camp in Germany
in 1948. At the age of 8, he immigrated to the United States with his
parents and other family members and has lived here since. He has a
long criminal record, involving drug crimes, attempted robbery,
attempted burglary, and theft. In 1994, he was ordered removed because
of a conviction for possession of cocaine with intent to distribute, a
crime under section 1227(a)(2). However, Germany would not accept
Zadvydas because he was not a German citizen and Lithuania refused to
accept him because he was neither a Lithuanian citizen nor a permanent
resident of that country. The government also tried unsuccessfully to
remove him to the Dominican Republic (Zadvydas's wife's country).
[40] Memorandum from Attorney General to the Acting Commissioner, INS,
re Post-Order Custody Review After Zadvydas v. Davis, July 19, 2001.
[41] Interim Regulations, Continued Detention of Aliens Subject to
Final Orders of Removal, 66 Fed. Reg., 56969 (2001).
[42] "Tolled" means to suspend or stop temporarily.
[43] The district court explained the pertinent dates as follows: on
Feb. 27, 2001 the Board of Immigration Appeals dismissed the alien's
appeal, which the alien construes as the date that his removal order
became final. The alien filed the present petition on February 6, 2002,
which is almost a year after the order of removal became final.
Typically, one would count 6 months from the date of this final order
of removal to reach the date on which detention would no longer be
presumptively reasonable. With such a calculation, the alien contends
that he was in custody for 1 year prior to filing his petition.
However, the alien filed a petition for review of the order of removal
with the Eleventh Circuit on March 27, 2001. It was dismissed on
January 9, 2002. The court concluded that only a 1-month period of
detention had elapsed--from January 2, 2002 to February 6, 2002--when
the alien filed the current petition.
The court noted that the alien might well argue that even though his 6-
month period of detention had not run when he first filed his habeas
petition with this court in February 2002, it has certainly run by the
present time, almost 8 months later. However, the district court noted
that the 6-month period of time must have expired at the time the
habeas petition was filed in order to state a Zadvydas claim. Citing
Akinwale, the court explained that an alien who is attempting to avoid
deportation should not properly be able to count the time spent
litigating that attempt as part of the detention period spent waiting
for actual physical removal to his native country. 227 F. Supp. 2d at
1363-1365.
[44] See also Mohamed v. Ashcroft, 2002 U.S. Dist. LEXIS 16179 (W.D.
Wash. April 15, 2002) and Okwilagwe v. INS, 2002 U.S. Dist. LEXIS 3596
(N.D. Texas March 2, 2002). The courts in these cases also found that
the lack of a definite answer from the foreign consulate indicated that
no removal was likely in the reasonably foreseeable future.
[45] The category of inadmissible aliens includes arriving aliens and
any alien ordered removed under an order of exclusion. For example,
this includes aliens seeking admission, excludable aliens [aliens
barred from entry under 8 U.S.C. §1182(a)], Mariel Cuban parolees and
other parolees. Memorandum from Michael A. Pearson, Executive Associate
Commissioner, Office of Field Operations, to Regional Directors,
Interim Guidance-Zadvydas v. Davis, July 19, 2001.
[46] Xi v. INS, 298 F.3d 832 (9th Cir. 2002).
[47] Rosales-Garcia v. Holland, 322 F. 3d 386 (6th Cir. 2003), petition
for a writ of certiorari denied, 71 U.S.L.W. 3789 (U.S. June 23, 2003)
(No. 02-1464). (A writ of certiorari is a petition to the Supreme Court
to hear an appeal of a case.)
[48] Cuban nationals who attempted to enter the United States without
documentation permitting them legal entry, as part of the 1980 Mariel
boatlift, have been physically present in the United States since that
time and in some instances paroled into the community. However, they
are legally considered to be detained at the border and hence as never
having effected entry into the United States.
[49] Sierra v. Romaine, 347 F. 3d 559 (3d Cir. 2003); Rios v INS, 324
F. 3d 296 (5th Cir. 2003); Hoyte-Mesa v. Ashcroft, 272 F. 3d 989 (7th
Cir. 2001); Borrero v. Aljets, 325 F. 3d 1003 (8th Cir. 2003); and
Benitez v. Wallis, 337 F. 3d 1289 (11th Cir. 2003). The aliens in all
of these cases were Mariel Cubans who, as such, had never been granted
admission to the United States. The Courts of Appeals held that the
presumptive 6-month limit to the post-removal period of detention set
forth in Zadvydas did not apply to nonadmitted aliens. The cases
concluded that the Zadvydas decision did not affect the government's
long-standing authority to detain nonadmitted aliens.
On October 14, 2003, the petitioner Benetiz filed a petition to the
U.S. Supreme Court for a writ of certiorari. On January 16, 2004, the
Supreme Court granted the petition. 2004 U.S.L.W. 67860 (U.S. Jan. 16,
2004) (No. 03-7434). The case will be argued before the Supreme Court
in April 2004, with a ruling to be issued before July 1, 2004.
[50] The U.S. Court of Appeals for the Ninth Circuit reached this same
conclusion in Xi v. INS, 298 F. 3d 832 (9th Cir. 2002). The court
concluded that the holding of Zadvydas applies to aliens deemed
inadmissible. Xi was a citizen of China. The U.S. Coast Guard
apprehended Xi off the coast of Guam on a boat that was being used to
smuggle aliens in violation of U.S. immigration laws.
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