Immigration Enforcement
ICE Could Improve Controls to Help Guide Alien Removal Decision Making Gao ID: GAO-08-67 October 15, 2007Officers with U.S. Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) investigate violations of immigration laws and identify aliens who are removable from the United States. ICE officers exercise discretion to achieve its operational goals of removing any aliens subject to removal while prioritizing those who pose a threat to national security or public safety and safeguarding aliens' rights in the removal process. The General Accountability Office (GAO) was asked to examine how ICE ensures that discretion is used in the most fair, reasoned, and efficient manner possible. GAO reviewed (1) when and how ICE officers and attorneys exercise discretion and what internal controls ICE has designed to (2) guide decision making and (3) oversee and monitor officers' decisions. To conduct this work, GAO reviewed ICE manuals, memorandums, and removal data, interviewed ICE officials, and visited 21 of 75 ICE field offices.
ICE officers exercise discretion throughout the alien apprehension and removal process, but primarily during the initial phases of the process when deciding to initiate removals, apprehend aliens, issue removal documents, and detain aliens. Officers GAO interviewed at ICE field offices said that ICE policies and procedures limit their discretion when encountering the targets of their investigations--typically criminal or fugitive aliens, but that they can exercise more discretion for other aliens they encounter. Officers also said that they consider humanitarian circumstances, such as sole caregiver responsibilities or medical reasons, when making these decisions. Attorneys, who generally enter later in the process, and officers told GAO that once removal proceedings have begun, discretion is limited to specific circumstances, such as if the alien is awaiting approval of lawful permanent resident status. Consistent with internal control standards, ICE has begun to update and enhance training curricula to better support officer decision making. However, ICE has not taken steps to ensure that written guidance designed to promote the appropriate exercise of discretion during alien apprehension and removal is comprehensive and up to date and has not established time frames for updating guidance. For example, field operational manuals have not been updated to provide information about the appropriate exercise of discretion in light of a recent expansion of ICE worksite enforcement and fugitive operations, in which officers are more likely to encounter aliens with humanitarian issues or who are not targets of investigations. Also, ICE does not have a mechanism to ensure the timely dissemination of legal developments to help ensure that officers make decisions in line with the most recent interpretations of immigration law. As a result, ICE officers are at risk of taking actions that do not support operational objectives and making removal decisions that do not reflect the most recent legal developments. Consistent with internal control standards, ICE relies on supervisory reviews to ensure that officers exercise appropriate discretion and has instituted an inspection program designed to ensure that field offices comply with established policies and procedures. However, ICE lacks other controls to help monitor performance across the 75 field offices responsible for making apprehension and removal decisions. A comprehensive mechanism for reviewing officers' decision making could provide ICE with meaningful information to analyze trends to identify areas that may need corrective action and to identify best practices. ICE officials acknowledged they do not collect the data necessary for such a mechanism and said doing so may be costly. Without assessing costs and alternatives, ICE is not in a position to select an approach that will help identify best practices and areas needing corrective action.
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-08-67, Immigration Enforcement: ICE Could Improve Controls to Help Guide Alien Removal Decision Making
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
October 2007:
Immigration Enforcement:
ICE Could Improve Controls to Help Guide Alien Removal Decision Making:
Immigration Enforcement:
GAO-08-67:
GAO Highlights:
Highlights of GAO-08-67, a report to congressional requesters.
Why GAO Did This Study:
Officers with U.S. Immigration and Customs Enforcement (ICE) within the
Department of Homeland Security (DHS) investigate violations of
immigration laws and identify aliens who are removable from the United
States. ICE officers exercise discretion to achieve its operational
goals of removing any aliens subject to removal while prioritizing
those who pose a threat to national security or public safety and
safeguarding aliens‘ rights in the removal process. GAO was asked to
examine how ICE ensures that discretion is used in the most fair,
reasoned, and efficient manner possible. GAO reviewed (1) when and how
ICE officers and attorneys exercise discretion and what internal
controls ICE has designed to (2) guide decision making and (3) oversee
and monitor officers‘ decisions. To conduct this work, GAO reviewed ICE
manuals, memorandums, and removal data, interviewed ICE officials, and
visited 21 of 75 ICE field offices.
What GAO Found:
ICE officers exercise discretion throughout the alien apprehension and
removal process, but primarily during the initial phases of the process
when deciding to initiate removals, apprehend aliens, issue removal
documents, and detain aliens. Officers GAO interviewed at ICE field
offices said that ICE policies and procedures limit their discretion
when encountering the targets of their investigations”typically
criminal or fugitive aliens, but that they can exercise more discretion
for other aliens they encounter. Officers also said that they consider
humanitarian circumstances, such as sole caregiver responsibilities or
medical reasons, when making these decisions. Attorneys, who generally
enter later in the process, and officers told GAO that once removal
proceedings have begun, discretion is limited to specific
circumstances, such as if the alien is awaiting approval of lawful
permanent resident status.
Consistent with internal control standards, ICE has begun to update and
enhance training curricula to better support officer decision making.
However, ICE has not taken steps to ensure that written guidance
designed to promote the appropriate exercise of discretion during alien
apprehension and removal is comprehensive and up to date and has not
established time frames for updating guidance. For example, field
operational manuals have not been updated to provide information about
the appropriate exercise of discretion in light of a recent expansion
of ICE worksite enforcement and fugitive operations, in which officers
are more likely to encounter aliens with humanitarian issues or who are
not targets of investigations. Also, ICE does not have a mechanism to
ensure the timely dissemination of legal developments to help ensure
that officers make decisions in line with the most recent
interpretations of immigration law. As a result, ICE officers are at
risk of taking actions that do not support operational objectives and
making removal decisions that do not reflect the most recent legal
developments.
Consistent with internal control standards, ICE relies on supervisory
reviews to ensure that officers exercise appropriate discretion and has
instituted an inspection program designed to ensure that field offices
comply with established policies and procedures. However, ICE lacks
other controls to help monitor performance across the 75 field offices
responsible for making apprehension and removal decisions. A
comprehensive mechanism for reviewing officers‘ decision making could
provide ICE with meaningful information to analyze trends to identify
areas that may need corrective action and to identify best practices.
ICE officials acknowledged they do not collect the data necessary for
such a mechanism and said doing so may be costly. Without assessing
costs and alternatives, ICE is not in a position to select an approach
that will help identify best practices and areas needing corrective
action.
What GAO Recommends:
GAO recommends that ICE update guidance to include factors officers
should consider when making apprehension and removal decisions and
establish time frames for this task; ensure that officers are provided
timely information on legal developments affecting their decisions; and
evaluate the costs and alternatives for developing a mechanism to
systematically analyze officer decision making. DHS agreed and
identified actions ICE plans to take to implement GAO‘s
recommendations.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.GAO-08-67]. For more information, contact
Richard M. Stana at (202) 512-8777 or StanaR@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
ICE Officers Exercise Discretion, Particularly for Aliens with
Humanitarian Issues or Who Are Not Investigation Targets:
ICE Has Strengthened Training Programs, but Lacks Comprehensive
Guidance and Consistent Legal Updates to Inform Decision Making:
ICE Has Supervisory Review and an Inspection Program to Monitor Removal
Operations but Lacks a Means to Analyze Information Specific to the
Exercise of Discretion across All Field Offices:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Department of Homeland Security:
Appendix III: GAO Contact and Staff Acknowledgments:
Table:
Table 1: Decisions Reviewed by Experienced Officers, Supervisors, and
Managers:
Figures:
Figure 1: Fiscal Year 2006 Removal Dispositions Issued by OI Field
Offices:
Figure 2: Worksite Enforcement Arrests, Fiscal Year 2002 through Fiscal
Year 2007:
Abbreviations:
DACS: Deportable Alien Control System:
DHS: Department of Homeland Security:
DRO: Office of Detention and Removal Operations:
ICE: Immigration and Customs Enforcement:
INA: Immigration and Nationality Act:
NTA: notice to appear:
OIG: Office of Inspector General:
OI: Office of Investigations:
OPLA: Office of the Principal Legal Advisor:
TECS: Treasury Enforcement Communications System:
USCIS: U.S. Citizenship and Immigration Services:
United States Government Accountability Office:
Washington, DC 20548:
October 15, 2007:
The Honorable Zoe Lofgren:
Chairwoman:
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law:
Committee on the Judiciary:
House of Representatives:
The Honorable Sheila Jackson Lee:
House of Representatives:
Responsibility for the enforcement of immigration laws within the
interior of the United States rests with U.S. Immigration and Customs
Enforcement (ICE), which plans and conducts investigations of persons
and organizations subject to criminal and administrative provisions of
the Immigration and Nationality Act (INA).[Footnote 1] ICE officers
investigate violations of immigration law and are responsible for
identifying aliens--that is, persons who are not citizens or nationals
of the United States--who are removable from the United
States.[Footnote 2] Aliens may be subject to removal for a wide variety
of reasons, including entering the United States illegally, staying
longer than their authorized period of admission, being convicted of
certain crimes, or engaging in terrorist activities. Aliens who enter
the United States illegally are subject to removal, as are aliens who
violate immigration law after entering the country legally. According
to its strategic plan, ICE focuses the greater part of its immigration
enforcement efforts on aliens who pose a threat to national security
and public safety, as well as on aliens who have ignored orders to
leave the United States. According to ICE records, in fiscal year 2006,
ICE removed about 182,000 aliens from the United States as part of its
enforcement efforts.
In recent years, through targeted investigative operations, ICE
components have increased their efforts to enforce immigration laws and
apprehend and remove aliens subject to removal. The ICE Office of
Investigations (OI), which has responsibility for investigating
immigration and other crimes related to national security, has
increased its emphasis on worksite enforcement operations. These
operations are conducted to apprehend and remove aliens who are
unlawfully employed and impose sanctions on employers who knowingly
employ these aliens. According to ICE data, the number of worksite
enforcement arrests increased from 510 in fiscal year 2002 to 4,383, in
fiscal year 2006. Likewise, ICE's Office of Detention and Removal
Operations (DRO), which has responsibility for ensuring that all
removable aliens depart from the country, has increased its emphasis on
fugitive operations, which are enforcement operations designed to
locate, apprehend, and remove aliens from the country who have not
complied with orders of removal issued by an immigration judge--known
as fugitive aliens.[Footnote 3] Over the last 2 fiscal years, the
number of fugitive arrests conducted by DRO increased from 7,958 in
fiscal year 2005 to 15,467 in fiscal year 2006. In carrying out these
operations and processing aliens for removal, OI and DRO officers are
to work with attorneys from ICE's Office of the Principal Legal Advisor
(OPLA), which is responsible for providing legal advice, training, and
services to support the ICE mission and for defending the interests of
the United States in the administrative and federal courts. In fiscal
year 2006, OPLA handled approximately 324,000 proceedings in
immigration courts.
During the process of enforcing immigration law, there are a number of
decisions that ICE officers and attorneys must make, taking into
account all facts and circumstances of each case, about the
apprehension and disposition of aliens who are subject to removal.
Specifically, ICE officers exercise discretion when they decide whom to
stop, question, and arrest; how to initiate removal; whether to grant
voluntary departure (whereby aliens agree to waive their rights to a
hearing and are escorted out of the United States to their home
countries by ICE officers);[Footnote 4] and whether to detain an alien
in custody. For example, ICE officers might consider alternative ways
to initiate removal proceedings--other than immediate apprehension and
detention--when they encounter aliens who are sole caretakers for minor
children or who are ill and are undergoing medical treatment. In other
circumstances, officers might decide not to question and arrest some
aliens they suspect are subject to removal in the interest of pursuing
other law enforcement efforts that provide a greater value to the
nation--such as those involving known criminals or threats to national
security. Also, once an ICE officer has made a decision to pursue
removal, ICE attorneys exercise discretion when they decide whether and
how to settle or dismiss a removal proceeding or to appeal a decision
rendered by an immigration judge.
All of these decisions are made within the context of the number of
aliens subject to removal from the United States (estimated to be about
12 million in 2006); ICE resources available to investigate, apprehend,
and remove aliens subject to removal; and the circumstances surrounding
each case. One of ICE's operational objectives is to apprehend and
remove aliens who are subject to removal--with a priority on those
aliens who pose a threat to national security and public safety--while
safeguarding aliens' rights in the removal process. Nonetheless, given
the large number of aliens in the country who are subject to removal,
it is virtually impossible for ICE officers to investigate and arrest
every potentially removable alien encountered through the course of an
enforcement effort. ICE headquarters officials told us that data are
not collected about potentially removable aliens whom its officers may
encounter and against whom officers do not take actions that may result
in removal proceedings. For this reason, the data provided in this
report focus primarily on aliens for whom removal proceedings have been
initiated.
Because of the important role that discretion plays in the alien
apprehension and removal process, you asked us to examine how ICE
ensures that discretion is used in the most fair, reasoned, and
efficient manner possible. Along these lines, we examined whether ICE
has designed internal controls to guide and monitor officers' exercise
of discretion when making alien apprehension and removal decisions,
consistent with internal control standards for the federal
government.[Footnote 5] Specifically, this review addresses the
following three questions:
1. When and how do ICE officers and attorneys exercise discretion
during the alien apprehension and removal process?
2. What internal controls has ICE designed to guide officer decision
making to enhance its assurance that the exercise of discretion
supports its operational objectives?
3. What internal controls has ICE designed to oversee and monitor
officer decision making during the alien apprehension and removal
process to enhance ICE's assurance that the exercise of discretion
supports its operational objectives?
To address these questions, we reviewed relevant laws and regulations
as well as applicable policies, memorandums, field operational manuals,
and training materials developed by OI, DRO, and OPLA headquarters
offices. We also examined available data on alien apprehensions for
worksite enforcement and fugitive operations to understand decision
outcomes resulting from alien apprehension enforcement operations. We
performed procedures to test the data's reliability and we concluded
that the data were reliable for the purpose of our review. We also met
with officials at OI, DRO, and OPLA in Washington, D.C; and interviewed
ICE officers, supervisors, and managers in 14 ICE field offices--seven
OI and seven DRO field offices--located in seven cities throughout the
United States: Chicago, Detroit, Los Angeles, New York, Philadelphia,
Phoenix, and San Diego. In addition, we interviewed ICE attorneys,
supervisors, and managers in seven Chief Counsel Offices (which serve
as OPLA's field offices) at these same locations. We asked both
officers and attorneys about when and how they have exercised and are
expected to exercise discretion in the course of their duties related
to alien removal.[Footnote 6] We selected these locations considering
field office size, ICE data on alien apprehensions, and geographic
dispersion. As we did not select probability samples of field offices
to visit and ICE officers and attorneys to interview, the results of
these interviews may not represent the views of ICE officers and
attorneys nationwide.
We also reviewed field operational manuals, headquarters policy
memorandums, locally developed field guidance, and training materials.
We asked headquarters officials and officers and attorneys in the field
about the guidance and information that would help to inform alien
apprehension and removal decisions available to officers, attorneys,
and their supervisors and managers. At headquarters and the various
field locations, we also examined available documentation on internal
controls in place to guide supervisory and managerial oversight and
monitoring of alien apprehension and removal decisions, and inquired
about procedures and practices for assessing the exercise of discretion
and outcomes associated with alien apprehension and removal decisions.
We compared the internal controls in place with the standards for
internal control to determine whether ICE's internal controls are
designed to provide assurance that its officers and attorneys are best
equipped to consistently exercise discretion in support of its
operational objectives.[Footnote 7] Appendix I discusses the scope of
our work and the methodology in greater detail.
We conducted our work for this report from August 2006 through
September 2007 in accordance with generally accepted government
auditing standards.
Results in Brief:
At the 14 ICE OI and DRO field offices we visited, policies and
procedures allow ICE officers to exercise discretion at multiple points
throughout the alien removal process--encountering aliens, apprehending
aliens, issuing removal charges, detaining removable aliens, pursuing
removal proceedings in immigration court, and executing a final removal
order. The initial phases of the alien removal process involve the most
discretion--specifically, decisions about whether to initiate removal
action, apprehend aliens, issue removal documents, and detain aliens.
Officers typically encounter two categories of aliens who are subject
to removal: (1) aliens who are the target of an investigation (e.g.,
the subject of a fugitive operation designed to locate and remove
aliens who have ignored prior removal orders) and (2) aliens who are
not the target of an investigation but whom officers encounter through
the course of an operation. Officers told us that when they encounter
aliens who are fugitives, criminals, or other investigation targets,
their ability to exercise discretion is limited by clearly prescribed
policies[Footnote 8] and procedures governing the handling of targeted
aliens--with the exception of extenuating circumstances such as serious
illnesses. However, officers at all seven DRO and seven OI field
offices we visited told us that they do exercise discretion when
determining how to process aliens who are not fugitives or criminals
and are not investigation targets, based on humanitarian circumstances,
such as medical issues or being the sole caregiver for minor children.
In such circumstances, officers can, based on the circumstances of the
case, decide to apprehend an alien and transport the alien to an ICE
facility to initiate the removal process, or the officer could exercise
an alternative method to initiate this process including issuing a
notice to appear (NTA) by mail or scheduling an appointment for the
alien to report at an ICE facility at a later date. Officers told us
that they will, in limited circumstances, issue an NTA by mail or
schedule an appointment as an accommodation to aliens who cannot be
physically present at a facility due to humanitarian circumstances.
Officers told us that once they decide how to initiate the removal
process (e.g., apprehending an alien or scheduling an appointment for
later processing), they have some discretion in determining which
removal option to employ, including whether to initiate formal removal
proceedings, which typically result in a hearing before an immigration
judge, or to grant voluntary departure in lieu of initiating formal
removal proceedings. Once a charge is issued, officers also have
discretion, with the exception of certain mandatory detention
requirements,[Footnote 9] to decide whether to detain an alien, based
on the circumstances of the case and taking account of both
humanitarian and resource issues. As aliens move further along the
apprehension and removal process, there are fewer circumstances that
require officers and attorneys to exercise discretion, as discretionary
options are limited by fixed policies and guidelines.[Footnote 10]
Chief Counsel Office attorneys have limited discretion to terminate
removal proceedings and can do so if, for example, an alien is eligible
for an immigration benefit, such as lawful permanent residence. DRO
officers, who are responsible for executing final removal orders, can
postpone an alien's removal date-- by granting a stay or a deferred
action--if circumstances merit such actions, but they rarely exercise
these options.
ICE's OI and DRO officers are to rely on their field operational
manuals, guidance provided by supervisors, and training to guide their
decision making about alien apprehensions and removals. Consistent with
internal control standards, which call for training to be aimed at
developing and retaining employee skills to meet changes in
organizational needs,[Footnote 11] ICE has taken steps to review and
update segments of its training curricula that may help support officer
decision making for alien apprehension and removal. For example, ICE
has instituted a specific worksite enforcement training module for OI
agents and Spanish language training for newly hired DRO officers.
Internal control standards also call for agencies to develop and
document detailed policies, procedures and practices to ensure that
they are an integral part of operations. ICE headquarters currently has
three sources to document established policies, procedures, and
practices that affect the exercise of discretion in the alien removal
process: (1) OI and DRO field operational manuals; (2) DHS and ICE
memorandums; and (3) an ICE worksite enforcement guidebook. However,
the guidance on the exercise of discretion in the alien removal process
is not comprehensive and up to date. Specifically, the guidance does
not serve to fully support officer decision making in cases involving
humanitarian issues and aliens who are not primary targets of ICE
investigations. First, despite a sharp increase in ICE's worksite and
fugitive operations in recent years, the OI and DRO operational
manuals, which are largely unchanged from before the creation of the
Department of Homeland Security (DHS) and ICE's placement in it, do not
reflect ICE's expanded worksite and fugitive operations, nor do they
clearly and comprehensively address humanitarian and other issues
associated with these operations. ICE has begun efforts to update these
manuals, but it does not have time frames for completing these updates
and it is unclear whether the revisions would include guidance on the
exercise of discretion. Second, although the various ICE organizational
units with removal responsibilities have issued guidance in the form of
their own memorandums to inform the exercise of discretion around
humanitarian issues, these memorandums also do not comprehensively
address the various circumstances the officers and attorneys may
encounter. Moreover, even though some memorandums are potentially
informative for multiple ICE units, they do not clearly apply outside
the unit that created them. Third, although ICE plans to regularly
update its worksite enforcement guidebook based on lessons learned from
past worksite operations, the current guidebook that ICE provided us in
August 2007 does not instruct officers on how to identify and process
aliens with humanitarian issues in large worksite operations or
otherwise. The lack of comprehensive and up to date guidance puts ICE
officers at risk of taking actions that do not support the agency's
operational objectives. This risk is greatest in larger scale
operations, including worksite enforcement and fugitive operations,
where officers may encounter numerous aliens with humanitarian issues
and aliens who are not investigation targets. In addition to the
guidance outlined in field operational manuals, memorandums, and the
guidebook, ICE officers also require timely information regarding legal
developments--such as court decisions modifying existing
interpretations of immigration laws--to guide officers' decision
making. Regional ICE Chief Counsel Offices are responsible for
disseminating this information. During our field visits, 3 of the 14 OI
and DRO offices reported receiving the necessary legal information,
while others said this has not happened. ICE does not have a formal
mechanism to help ensure consistent dissemination of this information
across field offices; rather, each Chief Counsel Office independently
decides when and what information about legal developments is
disseminated. These legal developments affect officers' decisions, and
without current information, officers are at risk of making incorrect
removal disposition decisions that could result in the termination of a
removal case.
ICE has two control mechanisms in place to monitor its removal
operations--established supervisory review practices and procedures and
an inspection program. However, ICE does not have a mechanism to allow
it to analyze information specific to the exercise of discretion across
all units. Internal control standards advise agencies to design
internal controls to ensure that ongoing monitoring occurs in the
course of normal operations.[Footnote 12] This monitoring includes
regular management and supervisory activities, comparisons,
reconciliations, and other actions people take in performing their
duties. Consistent with internal control standards that call for
agencies to ensure that supervision is performed continuously in agency
operations, ICE relies on supervisory oversight as a key management
control to oversee officer decision making and to ensure that
discretion is exercised appropriately with regard to alien
apprehensions and removals. Officials also told us that operations are
typically conducted in team environments and that officers rely on the
teams' collective judgment in determining how to exercise discretion
for these aliens. Headquarters officials told us that supervisors at
both DRO and OI field offices are required to sign removal
dispositions, including NTAs, voluntary departures, and other removal
dispositions.[Footnote 13] In addition, officials at all 14 DRO and OI
field offices we visited told us that supervisors are responsible for
reviewing instances when officers exercise discretion, such as when
encountering aliens with humanitarian factors. ICE has also recently
instituted an inspection program for its OI field offices to help
provide assurance that its operations are in line with its operational
objectives, and plans to institute a similar program for DRO offices.
However, ICE lacks other control elements to help it monitor program
performance across the 75 OI, DRO, and Chief Counsel field offices.
Specifically, internal control standards recommend that managers
compare trends in actual performance to expected results throughout the
organization in order to identify any areas that may require corrective
action to help ensure that operations continually support operational
objectives. Given that 75 field offices are involved in the alien
apprehension and removal process and that oversight of these offices
lies with three ICE units, a comprehensive mechanism for reviewing
officers' decision making could provide ICE with meaningful information
to promote the appropriate use of discretion, identify best practices,
and analyze any significant differences across field offices in order
to take appropriate action. ICE officials told us that modifying
existing databases to collect the details of discretionary decisions
made by officers needed to monitor performance across all offices could
be costly. However, having information on the use of discretion could
provide ICE senior managers enhanced assurance that officers and
supervisors across field offices are making decisions that reflect the
agency's operational objectives regarding alien apprehension and
removals. Moreover, even though ICE has ongoing and planned updates to
its information systems, it has not evaluated the costs and
alternatives for creating a mechanism capable of providing ICE with
usable information that it can analyze to identify trends in the
exercise of discretion. Without assessing the costs and alternatives
for creating such a mechanism, ICE is not in a good position to select
and implement an approach that will provide ICE assurance that it can
identify any best practices that should be reinforced or areas that
might require corrective actions--by, for example, modifying policies,
procedures, or training.
To enhance ICE's ability to inform and monitor its officers' use of
discretion in alien apprehensions and removals, we are recommending
that the Secretary of Homeland Security direct the Assistant Secretary
of ICE to take the following three actions: (1) develop time frames for
updating existing policies, guidelines, and procedures for alien
apprehension and removals and include factors that should be considered
when officers make apprehension, charging, and detention determinations
for aliens with humanitarian issues; (2) develop a mechanism to help
ensure that officers are consistently provided with updates regarding
legal developments; and (3) evaluate the costs and alternatives for
developing a reporting mechanism by which ICE senior managers can
analyze trends in the use of discretion across ICE's field offices to
help identify areas that may require management actions--such as
changes to guidance, procedures, and training--to address problems or
support development of best practices.
DHS agreed with our recommendations and outlined actions planned to
address them. These plans entail reevaluating and republishing all
existing policies, guidelines, and procedures pertaining to the
exercise of discretion during calendar year 2008; developing best
practices to ensure the latest legal updates are disseminated to agents
and officers through each Chief Counsel's Office; and, by December 1,
2007, initiating an evaluation of the costs and alternatives for
developing a mechanism by which to analyze trends in the use of
discretion.
Background:
Estimates of the size of the alien population subject to removal vary.
A report from the Pew Research Center estimated the population of
unauthorized aliens in the United States to be approximately 12 million
as of March 2006.[Footnote 14] According to DHS, the population of
aliens subject to removal from the United States has grown in recent
years. DHS's Office of Immigration Statistics estimated that the
population of aliens subject to removal has increased by half a million
from January 2005 to January 2006. Additionally, DHS has estimated that
the removable alien population grew by 24 percent from 8.5 million in
January of 2000 to 10.5 million in January of 2005.
Aliens who are in violation of immigration laws are subject to removal
from the United States. Over 100 violations of immigration law can
serve as the basis for removal from the United States, including, among
other things, criminal activity, health reasons (such as having a
communicable disease), previous removal from the United States, and
lack of proper documentation. ICE investigations resulted in 102,034
apprehensions, or about 8 percent of the approximately 1.3 million DHS
apprehensions in 2005. Four main categories constituted the basis for
aliens removed by DHS in 2005: (1) aliens entering without inspection,
by, for example, illegally crossing the border where there is no formal
U.S. port of entry; (2) aliens attempting to enter the United States
without proper documents or through fraud, at U.S. ports of entry; (3)
aliens with criminal convictions or believed to have engaged in certain
criminal activities, such as terrorist activities or drug trafficking;
and (4) aliens who are in violation of their terms of entry (e.g.,
expired visa).
ICE Officers Exercise Discretion, Particularly for Aliens with
Humanitarian Issues or Who Are Not Investigation Targets:
Our review of ICE policies and procedures, along with interviews at ICE
field offices, showed that officers exercise discretion throughout
various phases of the alien apprehension and removal process, but the
initial phases of the process--initiating removals, apprehending
aliens, issuing removal documents and detaining aliens--involve the
most discretion. Officers in OI and DRO field offices told us that they
exercise discretion for aliens with humanitarian issues and aliens who
are not investigation targets on a case-by-case basis with guidance and
approval from supervisors. Officers told us they typically encounter
(1) aliens who are the target of an investigation and (2) aliens who
are not the target of an investigation but who are encountered through
the course of an operation and are subject to removal. While officers
told us that discretion with regard to aliens who are fugitives,
criminals, and other investigation targets is limited by clearly
prescribed policies and procedures, they told us that they have more
latitude to exercise discretion when they encounter aliens who are not
fugitives or criminals and are not targets of ICE investigations,
particularly when encountering aliens with humanitarian issues.
Most Discretion Is Exercised in the Initial Phases of the Apprehension
and Removal Process:
The alien apprehension and removal process encompasses six phases: (1)
initial encounter, (2) apprehension, (3) charging, (4) detention, (5)
removal proceedings, and (6) final removal. Our review of federal
regulations, ICE policies, guidance, and interviews showed the parts of
the removal process from the time officers encounter aliens as part of
an operation to the time they determine whether to detain an alien
involve the most discretion. During removal proceedings and final
removal, ICE attorneys and DRO officers can exercise discretion only in
clearly delineated situations prescribed by ICE policies and statutory
and regulatory requirements.
Officers told us that during the initial phases of the apprehension and
removal process, they encounter situations that require them to pursue
alternate ways to initiate removals, in lieu of apprehending aliens.
During encounters with aliens, officers told us that they decide how to
exercise discretion for aliens on a case-by-case basis with input from
supervisors or experienced officers. Specifically, officers told us
that they exercise discretion when they encounter aliens who (1)
present humanitarian concerns such as medical issues or being the sole
caregiver for minor children or (2) are not the primary target of their
investigations.
Initial Encounter Phase:
DRO and OI officers told us that their primary goal is to initiate
removal proceedings for any alien they encounter who is subject to
removal. However, officers told us that in some instances, they might
decide not to pursue any action against an alien who they suspect to be
removable. Officers at two OI and one DRO field office told us that, in
some instances, they are unable to initiate removal action against
every alien they encounter during the course of an operation. Officers
noted that several factors--such as the availability of detention
space, travel time to an alien's location, and competing enforcement
priorities--affect their decisions to initiate removal action against
an alien. Officers at one of the seven OI field offices we visited also
told us that because of limited resources they have to make trade-offs
between dedicating resources to aliens who pose a threat to public
safety and those who do not--that is, noncriminal aliens--which in some
instances result in decisions to not initiate removal action against
noncriminal aliens.
Apprehension Phase:
Our review of DHS and ICE guidance showed that officers' ability to
exercise discretion is limited for aliens who are investigation
targets, such as criminal aliens and fugitive aliens who have ignored a
final removal order. Discretion for apprehending these aliens is
limited due to clearly prescribed policies, and procedures--such as
requirements under the INA to detain terrorists or certain criminals--
governing the handling of these aliens.[Footnote 15] By contrast,
officers at all seven DRO and seven OI field offices we visited told us
that they have discretion to process and apprehend aliens who are not
investigation targets or aliens who present humanitarian circumstances.
In such circumstances, officers told us that they can exercise
discretion by deciding to (1) apprehend an alien and transport the
alien to an ICE facility for processing, (2) issue the alien an NTA by
mail, or (3) schedule an appointment for the alien to be processed at
an ICE facility at a later date.
For example, in looking for a criminal alien who is the target of an
investigation, a fugitive operations team may encounter a friend or
relative of the targeted alien--who is also removable--but not the
primary target of an ICE investigation. If the friend or relative has a
humanitarian circumstance, like being the primary caregiver for small
children, the officers can decide to not apprehend the friend or
relative and opt for processing at a later time after reviewing the
circumstances of the case and determining that no other child care
option is available at the time. In such instances, ICE headquarters
officials told us that officers are to confirm child welfare claims
made by an alien and determine whether other child care arrangements
can be made. Headquarters officials also told us that aliens do not
always divulge that they are the sole caretakers of children but
explained that if ICE agents became aware of an alien's child welfare
responsibility, agents must take steps to ensure that the child or
children are not left unattended.
In addition, officers at two OI offices and one DRO office told us that
in some instances, such as when aliens are sole caretakers for minor
children or are ill, they will schedule appointments for aliens who are
not investigation targets to process them at a later date. Officers at
five of the seven OI field offices and two of the seven DRO offices we
visited also told us that they will mail an NTA--as an alternative to
apprehension--to aliens who present humanitarian issues such as medical
conditions or child welfare issues. At another OI field office,
officers told us that when determining whether to apprehend aliens or
use an alternative to apprehension--for aliens who are not
investigation targets--they also consider manpower availability.
Charging Phase:
Our review of ICE guidance and procedures showed that most of an
officer's discretion in the charging phase relates to the decision to
grant voluntary departure. Officers told us that when not statutorily
prohibited from granting voluntary departure, they have some discretion
in determining whether to issue an NTA and thus initiate formal removal
proceedings or grant voluntary departure in lieu of initiating formal
removal proceedings, which typically results in a hearing before an
immigration judge. Officers told us that they may consider factors like
humanitarian concerns and ICE priorities when exercising discretion to
grant voluntary departure.
On the basis of our review of ICE data, we noted significant variation
in the use of voluntary departure across field offices.[Footnote 16]
Our review of OI apprehension data also showed that three OI field
offices near the U.S. southwestern border initiated a relatively higher
number of voluntary departures (equal or greater than the number of
NTAs issued). ICE headquarters officials noted that officers at field
offices near the U.S. southwestern border employ voluntary departure
generally because of their proximity to the U.S.-Mexico border, which
enables them to easily transport Mexican nationals to Mexico. Figure 1
illustrates the number of NTAs and voluntary departure issued by OI
field offices.
Figure 1: Fiscal Year 2006 Removal Dispositions Issued by OI Field
Offices:
[See PDF for image]
Source: GAO analysis of OI data.
Note: ICE officers employ other removal dispositions, such as those
employed to remove criminal aliens or fugitive aliens who have failed
to depart the United States. These removal dispositions and others are
not shown in this graphic because NTAs and voluntary departures
constitute the largest number of removal options employed by ICE
officers.
[End of figure]
Detention Phase:
Our review of procedures also showed that if detention is not mandated
by the INA,[Footnote 17] officers have discretion to determine if an
alien will be detained or released pending the alien's immigration
court hearing. When making this determination, ICE guidance instructs
officers to consider a number of factors, such as humanitarian issues,
flight risk, availability of detention space, and whether the alien is
a threat to the community. Officers at two DRO field offices we visited
told us that they exercise discretion to release aliens from custody if
appropriate facilities are not available or if detention space is
needed for aliens who pose a greater threat to public safety. At one OI
field office, officers provided an example of an operation where they
released two women and two children on their own recognizance because
of the lack of appropriate detention space to house women and children.
Officers at another DRO field office also noted that detaining women
and juveniles can be challenging because of limited space to
accommodate them. Detention determinations made by officers can be
reexamined by immigration judges upon an alien's request.
Officers and Attorneys Have Less Discretion Once Removal Proceedings
Have Been Initiated:
Our review of ICE policy and DRO's field operational manual showed that
ICE attorneys--who generally enter the process once proceedings have
begun--and officers have less discretion in the later phases of the
apprehension and removal process. Once an alien's case arrives at the
removal proceedings phase and is being reviewed by ICE attorneys, we
found that the use of discretion at this stage is limited by clear
policy and guidelines. Our review of ICE policy and interviews with
attorneys at 5 of 7 Chief Counsel Offices showed that most aliens have
few alternatives to appearing before immigration court after entering
the removal proceeding phase. Circumstances in which ICE might not
pursue proceedings include a legally insufficient NTA; an alien's
eligibility for an immigration benefit, such as lawful permanent
residency; and an alien's serving as a witness in a criminal
investigation or prosecution. In these specific cases, ICE attorneys
can exercise discretion not to pursue proceedings by asking the
immigration court to terminate removal proceedings if the NTA has been
filed with the court. ICE OPLA guidance also permits ICE attorneys to
take steps to resolve a case in immigration court for purposes of
judicial economy, efficiency of process, or to promote justice.
Examples in the guidance include cases involving sympathetic
humanitarian circumstances like an alien with a U.S. citizen child with
a serious medical condition or disability, or an alien or close family
member who is undergoing treatment for a potentially life-threatening
disease.
ICE policy states that DRO may exercise discretion and grant some form
of relief to the alien, such as a stay of removal and deferred action
at the final phase of the process. A stay of removal is specifically
authorized by statute and constitutes a decision that removal of an
alien should not immediately proceed. Deferred action gives a case a
lower removal priority, but is not an entitlement for the alien to
remain in the United States. While some aliens could be granted a stay
or deferred action by DRO field office managers, DRO officers told us
that DRO seeks to execute removal orders in the vast majority of cases.
DRO officers in field offices told us that they could recall only a
handful of cases when DRO officers did not execute a removal order
after it was issued by an immigration judge. Supervisors in one DRO
field office recalled a case in which a stay was granted to an
aggravated felon who had a serious medical condition.
ICE Has Strengthened Training Programs, but Lacks Comprehensive
Guidance and Consistent Legal Updates to Inform Decision Making:
Officers at DRO and OI field offices who are responsible for
apprehending, charging, and detaining removable aliens are to rely on
formal and on-the-job training, guidance provided by supervisors, and
guidance provided in field operational manuals to inform their decision
making regarding alien apprehensions and removals. Consistent with
internal control standards, which call for training to be aimed at
developing and retaining employee skill levels to achieve changing
organizational needs, ICE has updated some of the training it offers to
officers responsible for making alien apprehension and removal
decisions.[Footnote 18] Some of the updated training includes, among
other things, implementing worksite enforcement training, supervisory
training for OI supervisors, and Spanish language training for newly
hired DRO officers. These updates have the potential to provide
critical information to officers and supervisors to better support
their decision making. However, ICE guidance, including ICE's field
operational manuals and ICE memorandums, on the exercise of discretion
during the alien apprehension and removal process does not serve to
fully support officer decision making in cases involving humanitarian
issues and aliens who are not primary targets of ICE investigations.
For example, ICE has not completed efforts to provide officers with
complete and up to date guidance to reflect expanded worksite and
fugitive operations enforcement efforts. ICE headquarters officials
told us that they do not have a time frame for completing efforts to
update available guidance in field operational manuals. In addition,
although Chief Counsel Offices provide information regarding legal
developments to DRO and OI officers to guide their decision making, ICE
does not have a mechanism to ensure that such information is
disseminated consistently to officers across field offices. The lack of
comprehensive guidance and a mechanism by which to help ensure that
officers receive consistent information regarding legal developments
puts ICE officers at risk of taking actions that are not appropriate
exercises of discretion and do not support the agency's operational
objectives.
ICE Has Instituted Training for Supervisors and Specialized Operations
and Has Other Training Initiatives in Early Phases of Development:
Internal control standards state that training should be aimed at
developing and retaining employee skill levels to meet changing
organizational needs. Officers at DRO and OI field offices who are
responsible for apprehending, charging, and detaining removable aliens
rely on formal and on-the-job training and guidance provided by
supervisors to inform their decision making regarding alien
apprehensions and removals. ICE has recently begun undertaking reviews
and revisions of training that are consistent with these internal
controls by updating and revising existing training curricula and
implementing new training curricula for OI and DRO officers to provide
critical information to officers and supervisors to better inform their
decision making. These actions are important steps for providing
officers with relevant information to inform their decision making. In
early 2007, OI instituted a 2-week worksite enforcement training course
geared toward informing ICE officers regarding criminal investigation
techniques and procedures, which also provides information on the
exercise of discretion regarding aliens who present humanitarian
issues. OI headquarters officials identified worksite enforcement as a
training need, since these operations are expanding, and an OI
headquarters official told us that most OI officers had not
participated in major worksite enforcement operations since 1998 and
that many of the officers who participate are temporarily assigned to
the operation from other duties or locations. Because of expanded
worksite enforcement operations, officials told us that OI instituted
worksite enforcement training, which will be offered to 100 OI officers
per year. Headquarters officials told us that resource constraints
preclude ICE from offering worksite enforcement training to all
officers.
In addition to worksite enforcement training, OI officials told us that
they are also in the process of instituting additional changes to
training curricula that could better support officer decision making:
* OI officials told us that they developed a 3-week training course for
first-line supervisors, with 1 week of the course designed to provide
information on legal issues pertaining to removal dispositions, such as
instances when to issue an NTA or grant voluntary departure.
* An OI official told us that OI is developing a 3-week refresher
training course for experienced OI officers, to reinforce these
officers' knowledge of alien apprehension and removal operations.
According to OI's chief of training, this course should be implemented
by the second quarter of fiscal year 2008.
* OI officials have revised an "On the Job" training manual that tracks
tasks that new officers must complete in their first 18 months on the
job. According to an OI training official, by completing the tasks
outlined in the manual, officers should have a full understanding of
the requirements for processing aliens, which include exercising
discretion throughout the apprehension and removal process (e.g.,
whether to immediately apprehend the alien or to mail an NTA).
Like OI officials, DRO officials have also taken steps to strengthen
training for DRO officers. In April 2007, DRO added a Spanish language
course to its basic training curriculum. According to DRO headquarters
training officials, this training will better equip officers to
communicate with aliens and thus help ensure that officers make
appropriate decisions about how to exercise discretion for aliens. In
addition, DRO is developing a 3-week refresher training for experienced
DRO officers designed to provide officers with skills, tactics and
legal updates pertaining to alien apprehension and removal operations
and plans to implement this course in October 2008. DRO headquarters
officials also told us that they will institute a 2-year "On the Job"
training program in September 2007. According to officials, this
program is to provide newly appointed officers with additional training
on immigration laws, competencies, and tasks related to their jobs.
While the recent changes to the OI and DRO training curricula are
positive steps in better aligning ICE training with operations, it is
too soon for us to assess the effectiveness of these efforts.
Operational Guidance Lacks Comprehensive Information to Inform Decision
Making and Has Not Been Updated to Fully Reflect Current Operations:
According to internal control standards, management is responsible for
developing and documenting the detailed policies, procedures, and
practices to ensure that they are an integral part of operations. DRO
and OI officers generally rely on (1) OI and DRO field operational
manuals; (2) DHS and ICE memorandums; and (3) an OI-developed worksite
enforcement operational guidebook for guidance and policies to perform
their duties, including making decisions regarding alien apprehensions
and removals. However, ICE guidance to instruct officer decision making
in cases involving humanitarian issues and aliens who are not primary
targets of ICE investigations during the alien apprehension and removal
process is not comprehensive and has not been updated by headquarters
officials to reflect ICE's expanded worksite and fugitive operations.
In addition, although officers exercise discretion when deciding
whether or not to take action to initiate the removal process, ICE does
not have guidance on officers' exercise of discretion on who to stop,
question, and arrest when initiating the removal process. Without
comprehensive policies, procedures, and practices, ICE lacks assurance
that management directives will be conducted as intended and that ICE
officers have the appropriate tools to fully inform their exercise of
discretion.
ICE's OI and DRO field operational manuals were created by ICE's legacy
agency--Immigration and Naturalization Service (INS), which was
reorganized under the newly formed Department of Homeland Security in
March of 2003. Both of these manuals, which are largely unchanged from
the guidance developed and employed by INS, are currently undergoing
revisions. Our review of these manuals shows that they do not offer
comprehensive and updated guidance to instruct officers on the exercise
of discretion in cases involving aliens with humanitarian issues and
aliens who are not targets of ICE investigations. For example, OI's
field operational manual offers some guidance on options for addressing
aliens with caregiver issues who are encountered during worksite
operations, such as ensuring that an alien's dependents receive timely
and appropriate care. However, the guidance does not include, for
example, provisions for aliens with medical conditions. OI headquarters
officials told us that they are in the process of revising OI's field
operational manual but have not yet updated the sections corresponding
to alien apprehensions and removals.
With respect to DRO's field operational manual, some guidance is
available to help officers decide whether to detain aliens pending
their immigration hearings, but it does not clarify how officers should
exercise discretion to determine detention for nonmandatory detention
cases, especially for aliens with humanitarian issues or aliens who are
not targets of ICE investigations. DRO headquarters officials told us
that they are revising a chapter in the manual on fugitive operations
but the revisions are not yet available to DRO officers in the field.
For both the OI manual and the fugitive operations chapter in the DRO
manual, headquarters officials told us that they did not yet know if
the revisions would include guidance on the use of discretion for
aliens with humanitarian issues or aliens who are not the targets of
ICE investigations. Moreover, OI and DRO officials could not provide a
time frame for when the revisions will be completed.
The various ICE organizational units with removal responsibilities have
issued some guidance to help guide their own officers' and attorneys'
exercise of discretion for aliens with humanitarian issues, but the
guidance either is not comprehensive with regard to the various
circumstances the officers and attorneys may encounter or does not
apply to officers who have the authority to initiate removal
proceedings. A memo issued in 2006 by DRO to its field offices,
outlines severe medical illnesses[Footnote 19] as a basis for
exercising discretion when deciding whether to detain aliens who are
not subject to mandatory detention.[Footnote 20] While this memo
provides important guidance for exercising discretion during the
detention phase for aliens with medical issues, it does not address
child welfare and primary caretaker issues.[Footnote 21] In addition, a
2005 memo issued by OPLA permits ICE attorneys to take steps not to
pursue proceedings by asking the immigration court to terminate removal
proceedings if the NTA has been filed with the court. Examples in the
guidance include cases involving sympathetic humanitarian circumstances
like an alien with a U.S. citizen child with a serious medical
condition or disability, or an alien or close family member who is
undergoing treatment for a potentially life-threatening disease.
However, this memo is directed at Chief Counsel attorneys, who do not
have the authority to initiate removal proceedings. Instead, only
supervisory DRO and OI officers can initiate removals, and as a result
the memo is not clearly applicable to them.
In addition, DHS, OI, DRO, and OPLA have also issued their own separate
memorandums that guide officers' actions at different points of the
apprehension and removal process. Each memorandum is generally directed
to officers and attorneys under the respective ICE unit that issues it,
resulting in a number of memos distributed via a number of different
mechanisms within each ICE unit. These memorandums do not offer
comprehensive guidance on exercising discretion for aliens with
humanitarian circumstances or aliens who are not the primary targets of
ICE investigations. For example, OI issued a memo in May 2006, which
instructs officers to schedule appointments as a last resort for
juvenile aliens, elderly aliens, or aliens with health conditions to be
processed at a later date, rather than apprehend these aliens at the
time of the encounter or mail them an NTA. This guidance addresses
important humanitarian issues, but it is only directed to ICE officers
who are responding to calls from local law enforcement agencies.
Furthermore, it does not define or fully delineate circumstances that
might constitute "last resort." Another memo issued by DHS in October
2004 provides officers and supervisors with flexibility on detaining
aliens (who are not subject to mandatory detention) depending on the
circumstances of the case, such as available bed space. However, this
memo does not offer specific guidance on determining detention for
aliens with humanitarian circumstances or aliens who are not primary
targets of ICE investigations.
In addition to ICE field operational manuals and various memorandums,
an OI headquarters official told us that ICE has recently instituted a
worksite enforcement operational guidebook to assist in the proper
planning, execution, and reporting of worksite enforcement operations.
Our review of this guidebook showed that it discusses, among other
things, operational planning and coordination, including instructions
on reporting requirements at the arrest site and working with other ICE
units, like DRO. However, although ICE plans to regularly update its
worksite enforcement operational guidebook based on lessons learned
from past worksite operations, the current guidebook that ICE provided
us in August 2007 does not include any guidance about how officers
should factor humanitarian issues into their decision making during the
apprehension and removal process. Finally, in our review of the
worksite enforcement operational guidebook, we did not find guidance to
inform officers' exercise of discretion on whom to stop, question, and
arrest when initiating the removal process--guidance that was also
lacking in the various operational manuals and memorandums.
In our review of documents from 26 OI field offices, we also noted that
only 3 of these field offices have developed local guidance to guide
officers' discretion in the initial phases of the apprehension and
removal process. However, the local guidance we reviewed is not
comprehensive because the 3 offices do not have guidance that covers
the use of discretion throughout the phases of the alien apprehension
and removal process when officers can exercise discretion. For example,
1 of the 3 offices has guidance on scheduling appointments for future
processing for aliens with humanitarian concerns. Another office has
guidance that covers factors to consider when exercising discretion for
cases involving humanitarian issues as well as guidance on deciding
whether to detain aliens who are not investigation targets.
Current ICE Operations Present a Need for Guidance on Humanitarian
Issues and Aliens Who Are Not ICE Targets:
ICE has recently expanded its worksite enforcement and fugitive
operations, increasing the probability that officers in the field will
have to exercise discretion in their encounters with aliens who present
humanitarian issues or aliens who were not the targets of their
investigations--particularly noncriminal aliens. With these expanded
operations, the need for up to date and comprehensive guidance to
reduce the risk of improper decision making becomes increasingly
important. According to ICE data, in fiscal year 2006, ICE made,
through its worksite enforcement operations, 716 criminal arrests,
which include aliens subject to removal who are charged with criminal
violations, and 3,667 administrative arrests, which refer to alien
workers who are unlawfully present in the United States but have not
been charged with criminal violations. These data show a sharp increase
from fiscal year 2005, as noted in figure 2. Through July 2007 of
fiscal year 2007, ICE made 742 criminal arrests and 3,651
administrative arrests in its worksite operations; these arrests
surpassed the combined arrests for worksite enforcement operations from
fiscal year 2002 to fiscal year 2005. According to a senior ICE
headquarters official, from fiscal year 2003 through the third quarter
of fiscal year 2007, ICE has also experienced over a six-fold increase
in the number of new officers dedicated to worksite enforcement
operations, many of whom are temporarily assigned to worksite
operations.
Figure 2: Worksite Enforcement Arrests, Fiscal Year 2002 through Fiscal
Year 2007:
[See PDF for image]
Source: ICE data.
[End of figure]
ICE reported that it has also expanded fugitive operations and plans to
increase the number of fugitive operation teams from 18 in 2006 to 75
by the end of fiscal year 2007. Annual performance goals for each of
these teams call for 1,000 apprehensions per team. As of April 27,
2007, ICE officers had arrested 17,321 aliens through its fugitive
operation teams in fiscal year 2007, a 118 percent increase in arrests
since fiscal year 2005.
ICE's expanding worksite enforcement and fugitive operations both
present officers with circumstances that could require the use of
discretion, specifically cases that involve aliens with humanitarian
issues or aliens who are not ICE targets. Expanded fugitive operations
may increase the number of encounters that officers have with removable
aliens who are not the primary targets or priorities of ICE
investigations. For cases involving these aliens, additional guidance
could provide ICE with better assurance that its officers are equipped
to exercise discretion and prioritize enforcement activities
appropriately.
In large-scale worksite enforcement operations, officers have
encountered numerous aliens who have presented humanitarian issues. For
this type of case, comprehensive guidance on how to weigh relevant
aspects of aliens' circumstances or humanitarian factors would provide
ICE with enhanced assurance that officers are best equipped to
appropriately determine whether aliens should be apprehended, how they
should be charged, and whether they should be detained.
A recent large-scale worksite enforcement operation in Massachusetts
highlights the importance of having comprehensive and up to date
guidance to help inform officers' decision making when they encounter
aliens with humanitarian issues. In this operation, ICE officers
encountered aliens who had humanitarian issues, including aliens who
were primary caretakers of children and had to assess the totality of
the circumstances in numerous cases, in real time, to decide how to
handle each case in coordination with other entities, such as social
service agencies, state government, and local law enforcement. ICE
issued a fact sheet about this operation on its external Web site that
discussed difficulties in coordinating and communicating with these
entities on issues of operational plans, detention space, access to
detainees, and information about arrestees. The fact sheet noted that
ICE arrested 362 removable aliens and transported over 200 of these
aliens to detention facilities in Texas due to a lack of bed space in
Massachusetts. In addition, 60 aliens were initially released during
administrative processing at the time of the operation for child
welfare or family health reasons, and additional aliens were released
later for these reasons. According to ICE officials, another concern
ICE officers face as they attempt to exercise discretion is that these
officers encounter aliens who sometimes do not divulge their status as
sole caregivers for children. Complex environments like the one
described here demonstrate the need for up to date and comprehensive
guidance that supports ICE's operational objectives and use government
resources in the most effective and efficient manner.
No Mechanism Is in Place to Help Ensure Officers Consistently Have
Necessary Information Regarding Legal Developments:
Internal control standards state that effective communications should
occur in a broad sense with information flowing down, across, and up
the organization. This includes communicating information in a form and
within a time frame that enables officials in carrying out their
duties. In carrying out their duties, ICE officers require information
on relevant legal developments--such as court decisions modifying
existing interpretations of immigration laws--to help inform their
decision making regarding removal dispositions (e.g., NTA or voluntary
departure). However, ICE has not instituted a mechanism to ensure that
legal developments are consistently disseminated to ICE officers across
all field offices. For example, officers at only two DRO field offices
and one OI field office we visited received current information on
legal developments from their Chief Counsel Office, which is
responsible for disseminating this information, while others did not
receive such information at all or did not receive it when they needed
it for case processing. In addition, officers at two of the seven OI
field offices we visited expressed a need for more information
regarding legal developments to better inform their decision making
regarding removal dispositions. Officers at one OI field office told us
that there are occasions when they do not receive the necessary legal
guidance until they have already processed a case. Chief Counsel
offices independently decide when and what information to disseminate
regarding legal developments. Officers at seven DRO and six OI field
offices we visited told us that they can consult Chief Counsel
attorneys to seek guidance on legal issues. Although relying on Chief
Counsel field offices to disseminate information and advise officers on
legal issues can help officers when making decisions, without a
formalized mechanism to consistently disseminate information that
officers can use when they process cases, officers might not receive
information necessary to make sound removal decisions that comply with
the most recent legal developments.
ICE Has Supervisory Review and an Inspection Program to Monitor Removal
Operations but Lacks a Means to Analyze Information Specific to the
Exercise of Discretion across All Field Offices:
ICE has two control mechanisms in place to monitor its removal
operations--established supervisory review practices and procedures and
an inspection program. However, ICE does not have a mechanism to allow
it to analyze information specific to the exercise of discretion.
Internal control standards advise agencies to design internal controls
to ensure that ongoing monitoring occurs in the course of normal
operations. This monitoring includes regular management and supervisory
activities, comparisons, reconciliations, and other actions people take
in performing their duties. ICE relies primarily on the judgment of
experienced field officers and supervisory reviews to provide assurance
that officers' decision making complies with established policies and
procedures. In addition to supervisory reviews, ICE has recently taken
steps to institute an inspection program designed to oversee field
offices' compliance with established policies and procedures. However,
neither supervisory reviews nor ICE's newly instituted inspection
program offers a mechanism for management to collect and analyze
information specific to officers' exercise of discretion in alien
apprehension and removal decisions across all field offices. The
ability to collect and analyze data about the exercise of discretion
across field offices could provide ICE with additional assurance that
it can identify and respond to areas that may require some type of
corrective action. Moreover, without these data and analyses, ICE is
not positioned to compile and communicate lessons learned to help
support officers' decision making capacity.
Supervisory Reviews Serve as Primary Control over Officer Decision
Making:
One way for agencies to help ensure that ongoing monitoring occurs in
the course of normal operations is to design appropriate supervision to
help provide oversight of internal controls. Consistent with this
activity, ICE policy requires supervisory review of officer decisions
on a case-by-case basis to ensure that officers' decisions comply with
established policies and procedures for alien apprehension and removal
decisions.
ICE officers are to document the specific immigration charges lodged
against an alien, as well as the custody decision made by officers, on
a standardized form. Throughout the alien apprehension and removal
process, supervisors are responsible for reviewing and authorizing
decisions made by officers. For example, when officers are determining
whether to detain or release an alien from custody, ICE memorandums
state that supervisors must approve an officer's decision.[Footnote 22]
In addition, according to ICE headquarters officials, supervisors at
both DRO and OI field offices are to review officers' apprehension and
removal decisions to ensure that officers use the most appropriate
removal disposition and to ensure that officers' decisions comply with
legal requirements, policies, and procedures. Headquarters officials
also told us that supervisors are responsible for approving and signing
off on decisions to grant voluntary departure and issue NTAs and other
removal dispositions issued by officers.
Officials at all seven DRO and seven OI field offices we visited also
told us that supervisors are responsible for reviewing instances when
officers have exercised discretion, such as when encountering aliens
with humanitarian issues. Officers at field offices we visited also
noted that they consult with experienced officers or supervisors when
making these decisions and that operations are typically conducted by
teams where officers' collective knowledge is used to make
discretionary decisions. Table 1 outlines the types of reviews
conducted by experienced officers, supervisors, and managers at DRO and
OI field offices.
Table 1: Decisions Reviewed by Experienced Officers, Supervisors, and
Managers:
Phase: Apprehension;
Type of decision: Decision not to apprehend an alien based on
humanitarian or other factors[A];
Reviewing/approving official:
* Senior officer/agent or lead officer/agent;
* Supervisory special agent;
* Supervisory detention and deportation officer;
Review instituted as a result of: ICE policy.
Phase: Charging;
Type of decision: Decision to issue an NTA;
Reviewing/ approving official:
* Supervisory special agent;
* Supervisory detention and deportation officer;
Review instituted as a result of: 8 CFR, Section 239.1.
Phase: Charging;
Type of decision: Decision to grant voluntary departure;
Reviewing/approving official:
* Supervisory special agent;
* Supervisory detention and deportation officer;
Review instituted as a result of: 8 CFR, Section 240.25 ICE policy.
Phase: Detention;
Type of decision: Decision to detain or release alien on own
recognizance or under order of supervision;
Reviewing/approving official:
* Supervisory detention and deportation officer;
Review instituted as a result of: ICE policy.
Phase: Removal proceedings;
Type of decision: Decision to grant stay or deferred action;
Reviewing/approving official:
* Supervisory detention and deportation officer;
* DRO assistant field office director;
* DRO field office director[B];
Review instituted as a result of: ICE policy.
Source: GAO analysis of ICE policies and practices.
[A] Decisions not to apprehend aliens involve scheduling an appointment
for processing at a later time and mailing a notice to appear to an
alien's home. In addition to humanitarian factors, other factors that
officers consider when making these decisions include manpower
availability, detention availability, and competing enforcement
priorities.
[B] According to DRO field officers we interviewed, DRO field office
directors are required to approve stays and deferred action.
[End of table]
ICE Has Instituted an Inspection Program to Help Monitor Operations,
Including Alien Apprehensions and Removals for its OI Field Offices,
and Plans a Similar Program for DRO Field Offices:
ICE's Office of Professional Responsibility instituted an inspection
program for OI field offices in July 2007, consistent with internal
control standards for monitoring operations by designing mechanisms for
identifying and communicating deficiencies to managers.[Footnote 23]
According to the headquarters official responsible for overseeing the
inspection program, ICE plans to implement a similar inspection program
for DRO field offices in the fall of 2007. According to this official,
the inspection program is designed to determine whether field offices
are complying with the established policies and procedures selected for
review. The inspection program consists of two areas: (1) an annual
self-inspection process under which all field offices must respond to a
Web-based questionnaire covering operational activities and (2) a field
inspection program under which all OI and DRO field offices are to be
inspected by headquarters officials at least once during a 4-year
cycle. In instances where field offices are not compliant, field
officials must develop a plan of action to address discrepancies that
are identified. For OI offices, examples of areas that are to be
reviewed include procedures for processing aliens, as well as methods
for ensuring that operational plans are prepared and approved before
arrests are conducted. For DRO field offices, areas that are to be
reviewed, among other things, include compliance with procedures to
ensure that aliens are served with a copy of an NTA, as well as
procedures for completing and obtaining approval for operational plans
in advance of fugitive operations. Our review of the self-inspection
questionnaires and our discussion with the program manager showed that
the inspection program is not designed to analyze information on
officer decision making regarding alien apprehensions and removals.
ICE Lacks a Mechanism to Collect and Analyze Data Specific to the
Exercise of Discretion across All Field Offices:
An important purpose of internal control monitoring is to allow
agencies to assess the quality of performance over time.[Footnote 24]
Specifically, internal control standards recommend that managers
compare trends in actual performance to expected results throughout the
organization in order to identify any areas that may require corrective
action to help ensure operations support operational objectives.
Although, ICE has some controls in place to monitor operations related
to alien apprehensions and removals, neither supervisory review nor its
inspection program offer managers information to specifically analyze
officer decision making for trends across the 75 OI, DRO and Chief
Counsel field offices that might indicate the need for a corrective
action, such as additional training or clarification of procedures, or
that might reveal best practices for achieving desired outcomes. ICE
does not have a mechanism for collecting and analyzing data on
officers' exercise of discretion in determining what removal processing
option to employ, such as officers' basis for scheduling an appointment
to process an alien at a later date for aliens who present humanitarian
circumstances or the frequency of such actions. Additionally, ICE does
not collect and analyze the actions taken by officers (e.g., scheduling
an appointment, or mailing an NTA) in addressing aliens presenting
humanitarian issues. Such information could be used by managers to
identify trends in actions taken by officers to address aliens with
humanitarian issues that could in turn be used to make any necessary
modifications to guidance, policies or training.
ICE policy outlines a mechanism to capture and analyze information
regarding officers' discretionary decisions made as part of worksite
enforcement operations, but this inspection mechanism has not been used
consistently. ICE officials told us that, as part of worksite
enforcement operations, its officers make decisions in the field on a
case-by-case basis in a time-constrained environment. In recent
worksite operations, officers have apprehended thousands of aliens in
operations conducted in various cities across the nation. Our review of
ICE's worksite enforcement training curriculum and OI's field
operational manual showed that ICE policy outlines a key internal
control--after-action reports--which are to capture, among other
things, information on significant or unusual incidents or
circumstances that may have occurred during an operation; a listing of
the number of aliens arrested, reasons for the release of detained or
arrested aliens, and any allegations of civil rights violations or
other complaints.[Footnote 25] However, a senior headquarters official
responsible for overseeing OI's worksite enforcement division told us
that although after-action reports are still outlined as requirements
in OI's training curriculum (dated April 2007) and in the OI field
operational manual, ICE has eliminated this requirement. According to
OI headquarters officials, prior to the reporting requirement change,
after-action reports had only been prepared for one worksite
enforcement operation, which was conducted in 2006, since ICE was
created. The senior headquarters official told us that, in lieu of
after action reports, OI intends to collect information on lessons
learned as part of its worksite enforcement guidebook. Our review of
the guidebook provided to us by ICE showed that the guidebook did not
yet reflect lessons learned.
The scale and complexity of recent ICE worksite operations, such as an
operation in Massachusetts involving difficulties coordinating and
communicating with social service agencies, state government, and local
law enforcement on issues of operational plans, detention space, access
to detainees, and information about aliens who were apprehended,
highlight the need for ICE to be able to learn from past experiences,
thereby providing ICE officers with a richer knowledge base to inform
their decision making under difficult circumstances. Moreover, since
ICE has experienced a more than six-fold increase (between fiscal year
2003 and the third quarter of fiscal year 2007) in the number of new
officers participating in worksite enforcement operations, more
officers are making decisions and exercising discretion in these
complex environments. Having a mechanism that provides ICE with
information regarding its enforcement operations across all field
offices would help identify areas needing corrective action regarding
officer decision making. For example, having comprehensive information
on factors considered by officers and actions taken by them (e.g.,
scheduling an appointment for later processing, or mailing an NTA) to
address aliens with humanitarian issues could lead to revised policies
and procedures. In addition, such a mechanism could help ICE protect
its credibility and integrity against allegations of alien mistreatment
by having readily available information to ensure that officer decision
making complies with established policies and procedures. Without a
mechanism to catalog and collect information--agencywide--on the
exercise of discretion, ICE managers cannot analyze trends to provide
additional assurance that officer decision making complies with
established ICE policies and operational objectives, nor is ICE
positioned to refine operational approaches based on a review of best
practices across field offices.
ICE relies on two databases to document officers' decisions regarding
alien apprehensions: (1) the Enforcement Case Tracking System
(ENFORCE), which is primarily used to collect alien biographical
information and removal option employed, such as voluntary departure or
an NTA, and (2) the Deportable Alien Control System (DACS), which is
used to track the location of detained aliens, as well as the status of
aliens' immigration court hearings. However, headquarters officials
told us that the details of discretionary decisions (e.g., factors
considered in deciding whether to apprehend an alien or detain an
alien, based on humanitarian reasons) are not recorded in ENFORCE and
DACS. Officials explained that officers may record information
explaining their decisions in each of these systems' narrative
sections. However, according to officials, inputting this information
is not a requirement, and information recorded by officers in the
narrative sections of these databases is not analyzed by field managers
or headquarters officials.
Headquarters officials responsible for overseeing ENFORCE and DACS told
us that ICE plans to update these systems to provide other
capabilities. A headquarters official responsible for overseeing
ENFORCE told us that ICE plans to integrate aspects of ENFORCE with
another system--the Treasury Enforcement Communications System (TECS)-
-used by officers to track criminal investigations. According to this
official, the proposed changes will allow officers to more easily
access information pertaining to apprehended aliens and associated
criminal investigations. In addition, a headquarters official
responsible for overseeing the DACS system told us that ICE is piloting
a program to merge DACS with ENFORCE, with the goal of creating one
case management system for collecting information on alien
apprehensions and for tracking the progress of alien removal
proceedings. However, it is unclear whether these plans and the
resulting systems would provide information ICE managers need to
monitor and analyze officer decision making across all field offices.
The DHS Office of Inspector General (OIG) has recognized the need to
upgrade ICE data systems so that management has reliable data to make
programmatic decisions and assess performance with regard to detention
and removal programs, including identifying trends associated with
underlying decisions made during the alien removal process. In April
2006, the OIG reported that DACS lacks the ability to readily provide
DRO management with the data analysis capabilities to manage the
detention and removal program in an efficient and effective manner
because (1) the information stored in DACS was not always accurate or
up to date and (2) DRO could not readily query DACS to obtain
statistical reports on detentions and removals.[Footnote 26] The OIG
stated that the lack of reliable program analysis capabilities could
detrimentally affect DRO's ability to identify emerging trends and
identify resource needs. According to the OIG, this data system should,
at a minimum, be able to provide quality immigration-related data on
various factors including, among other things, the rationale underlying
DRO's decision to release an alien from detention or not to detain
individual aliens. OIG recommended that ICE expedite efforts to develop
and implement a system capable of meeting data collection and analysis
needs relating to detention and removal, including a plan showing
milestone dates, funding requirements, and progress toward completing
the project. DHS and ICE concurred with the OIG's recommendation and
said that it would prepare a project plan for developing and deploying
the system in an expedited manner. Although DHS and ICE said that the
new system is to allow users to capture, search, and review information
in specific areas, including information on detention and removal case
details, the response was not specific about whether it would contain
information on the rationale for making these decisions. Having
information on officers' exercise of discretion, including their
rationale for making decisions, would provide ICE managers a basis for
identifying potential problems, analyzing trends, and compiling best
practices.
ICE headquarters officials told us that collecting and managing data
that detail decisions made by officers could be costly. However, ICE
has not evaluated the costs or alternatives for creating a mechanism
capable of providing ICE with usable information that it can analyze to
identify trends in the exercise of discretion. For example, ICE has not
considered the costs and benefits of such a mechanism in connection
with planned or ongoing information system updates. Until ICE assesses
costs and alternatives for collecting these data, it will not be in a
good position to select and implement an approach that will provide ICE
assurance that it can identify any best practices that should be
reinforced or areas that might require corrective actions--by, for
example, modifying policies, procedures, or training. Given that 75
field offices are involved in the alien apprehension and removal
process and that oversight of these offices lies with three ICE units,
a comprehensive mechanism for reviewing officers' decision making could
provide ICE with meaningful information to promote the appropriate use
of discretion, identify best practices, and analyze any significant
differences across field offices in order to take appropriate action.
Conclusions:
Appropriate exercise of discretion during the alien removal process is
an essential part of ICE's law enforcement efforts as it conducts
operations in complex environments and with finite resources to
identify, locate, and remove many of the estimated 12 million aliens
subject to removal from the United States. Internal controls, like
training, guidance, and monitoring that are designed to help ICE ensure
that its officers are well equipped to consistently make decisions that
support its operational objectives, are crucial for ICE to help provide
assurance that its officers exercise discretion in a manner that
protects the agency's integrity, advances its mission, and provides the
greatest value to the nation. Although ICE has taken steps in the area
of training to develop and retain officer skills, ICE's guidance does
not comprehensively address key aspects of the alien apprehension and
removal process, such as dealing with humanitarian issues and aliens
who are not investigation targets. In light of the increased number of
circumstances that might call for the exercise of discretion in ICE's
expanded enforcement efforts, comprehensive guidance--including factors
that should be considered when officers make apprehension, charging,
and detention determinations for aliens with humanitarian issues--to
better support officers' decision making to provide ICE with enhanced
assurance that discretion is exercised appropriately. Without
established time frames for updating guidance, ICE lacks a means to
track progress and ensure accountability for accomplishing the updates.
Moreover, developing a mechanism for consistently disseminating legal
information would help to ensure that officers have the most recent
information on legal developments that may affect the decisions they
make. Finally, collecting information on officers' exercise of
discretion could provide ICE with enhanced assurance that officers and
supervisors across field offices are making decisions that reflect the
agency's operational objectives regarding alien apprehensions and
removals and could also help managers identify best practices or areas
that may require management action. Although ICE officials have noted
that collecting and managing data about the exercise of discretion
could be costly, ICE has not evaluated the costs of and alternatives
for collecting such information. For instance, as ICE updates the
systems it uses to manage other operational data, it could consider the
costs and benefits of integrating this data collection function as part
of other planned system redesigns. However, without an assessment of
the costs and alternatives for collecting data on officer decision
making, whether in association with planned system updates or not, ICE
is not in the best position to select and implement an approach that
provides ICE assurance that it can identify best practices to support
decision making capacity or, more importantly, recurrent or systematic
issues that could jeopardize its mission.
Recommendations for Executive Action:
To enhance ICE's ability to inform and monitor its officers' use of
discretion in alien apprehensions and removals, we recommend the
Secretary of Homeland Security direct the Assistant Secretary of ICE to
take the following three actions:
* develop time frames for updating existing policies, guidelines, and
procedures for alien apprehension and removals and include in the
updates factors that should be considered when officers make
apprehension, charging, and detention determinations for aliens with
humanitarian issues;
* develop a mechanism to help ensure that officers are consistently
provided with updates regarding legal developments necessary for making
alien apprehension and removal decisions;
* evaluate the costs and alternatives of developing a reporting
mechanism by which ICE senior managers can analyze trends in the use of
discretion to help identify areas that may require management actions-
-such as changes to guidance, procedures, and training.
Agency Comments and Our Evaluation:
We requested comments on a draft of this report from the Secretary of
Homeland Security. In an October 4, 2007 letter, DHS agreed with our
three recommendations and discussed the actions ICE plans to take to
address them, which are summarized below and included in their entirety
in appendix II.
With regard to our recommendation that ICE develop time frames for
updating existing policies, including factors that should be considered
when making apprehension, charging, and detention decisions, DHS said
that ICE would reevaluate and republish all existing policies,
guidelines, and procedures pertaining to the exercise of discretion
during calendar year 2008. With regard to our recommendation that ICE
evaluate the costs and alternatives of developing a mechanism by which
to analyze trends in the use of discretion, DHS said that ICE
anticipates initiating this evaluation by December 1, 2007.
With regard to our recommendation to develop a mechanism to help ensure
that officers are consistently provided with updates regarding legal
developments, DHS explained that ICE believes that policies are in
place to address the needs of the operational components for up to date
legal guidance, and that officers rely primarily on local Chief Counsel
Offices for information on legal developments. DHS said that this
localized approach reflects the fact that significant developments in
case law often result from decisions of the 12 United States Courts of
Appeal and that such decisions are often inconsistent and only have
application within the geographic boundaries where they arise.
Nonetheless, DHS commented that ICE recognizes that consistency in the
dissemination of legal updates is of great importance to agents and
officers and said that ICE will look to develop best practices to
ensure the latest legal updates are disseminated to agents and officers
through each Chief Counsel's office. We believe ICE identification and
implementation of best practices would be important in helping ensure
that updates on legal developments are consistently provided to
officers.
We are sending copies of this report to selected congressional
committees, the Secretary of Homeland Security, the Assistant Secretary
of U.S. Immigration and Customs Enforcement, the Director of the Office
of Management and Budget, and other interested parties. We will also
make copies available to others on request. In addition, the report
will be available on GAO's Web site at [hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report or wish to
discuss them matter further, please contact me at (202) 512-8777 or
stanar@gao.gov. Contact points for our Offices of Congressional
Relations and Public Affairs may be found on the last page of this
report. Major contributors are listed in appendix III.
Signed by:
Richard M. Stana:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
This review examined how Immigration and Customs Enforcement (ICE)
ensures that discretion is used in the most fair, reasoned, and
efficient manner. Along these lines, we examined whether ICE has
designed internal controls to guide and monitor officers' exercise of
discretion when making alien apprehension and removal decisions,
consistent with internal control standards for the federal
government.[Footnote 27] Specifically, this review addresses the
following three questions:
1. When and how do ICE officers and attorneys exercise discretion
during the alien apprehension and removal process?
2. What internal controls has ICE designed to guide officer decision
making to enhance its assurance that the exercise of discretion
supports its operational objectives?
3. What internal controls has ICE designed to oversee and monitor
officer decision making during the alien apprehension and removal
process to enhance ICE's assurance that the exercise of discretion
supports its operational objectives?
To address these objectives, we obtained and analyzed information at
ICE's Office of Investigations (OI), Office of Detention and Removal
Operations (DRO), and the Office of the Principal Legal Advisor (OPLA)
within the Department of Homeland Security (DHS) in Washington, D.C. We
also carried out work at 14 ICE field offices--seven OI and seven DRO
field offices--located in seven cities throughout the United States:
Chicago, Detroit, Los Angeles, New York, Philadelphia, Phoenix, and San
Diego and seven ICE Chief Counsel Offices (which serve as OPLA's field
offices) at these same locations. We selected these locations
considering field office size, ICE data on alien apprehensions, and
geographic dispersion. Regarding alien apprehensions, about 40 percent
of all ICE Office of Investigations apprehensions during fiscal year
2006 were made by the seven OI offices selected for our review. As we
did not select a probability sample of field offices or Chief Counsels'
offices to review, the results of our work at these locations cannot be
projected to field offices nationwide.
To identify when and how officers and attorneys exercise discretion
during the alien apprehension and removal process, we reviewed relevant
laws and regulations as well as applicable policies, memorandums,
operational manuals, and training materials developed by OI, DRO, and
OPLA headquarters offices. We also spoke with headquarters officials in
the OI, DRO, and OPLA operational divisions regarding the exercise of
discretion in the alien apprehension and removal process. At each of
the field locations we visited, we collected and reviewed available
locally developed field guidance, memorandums, and training materials
applicable to the exercise of discretion during the apprehension and
removal process. We also conducted small group interviews with
officers, supervisors, and managers at the 14 OI and DRO field offices
we selected as part of our nonprobability sample to determine when and
how officers at those locations exercise discretion, and when and how
officers are expected to exercise discretion, during the alien
apprehension and removal process. In addition, we conducted small group
interviews with attorneys, supervisors, and managers at the 7 Chief
Counsel offices we visited to determine when and how attorneys exercise
discretion, and when and how they are expected to exercise discretion,
once formal removal proceedings have been initiated by OI and DRO
officers.[Footnote 28] As we did not select probability samples of ICE
officers and attorneys, supervisors, and managers to interview at the
field offices we selected, the results of these interviews may not
represent the views of ICE officers and attorneys and their supervisors
and managers nationwide.
To address internal controls ICE has designed to guide officer decision
making, we reviewed field operational manuals, policy memorandums, and
training materials developed by OI, DRO, and OPLA headquarters offices.
We also requested locally developed written guidance and policies and
procedures regarding alien apprehension and removal procedures from all
DRO, OI and Chief Counsel field offices. We received and reviewed
locally developed guidance from 13 of OI's 26 field offices and 12 of
Chief Counsel's 26 field offices. The purpose of this review was to
identify the range of policies and guidance developed by field units
that we did not capture as part of our nonprobability sample of ICE
field offices. We did not receive locally developed guidance from DRO's
23 field offices, as DRO headquarters officials told us that DRO field
offices do not rely on locally developed guidance and instead rely on
national policies and memorandums. As part of our work at the ICE field
offices we visited, we also discussed and identified guidance and
training provided to officers and attorneys with regard to the guidance
and information available to them when exercising discretion during the
apprehension and removal process, including guidance about nontargeted
aliens, humanitarian issues, and updates on legal developments. We then
compared the national and local guidance, memorandums, and training
materials in place with internal control standards to determine whether
these controls were consistent with the standards.[Footnote 29] In
addition, we met with headquarters officials responsible for the
development of policy and training of field unit operations for OI and
DRO and we interviewed OPLA officials responsible for developing policy
and training for Chief Counsel Offices to discern their role in
developing and providing guidance and information to ICE officers,
attorneys, supervisors, and managers involved in the alien apprehension
and removal process.
To address what internal controls ICE has designed to oversee and
monitor officer decision making during the alien apprehension and
removal process, we reviewed relevant laws, regulations, and field
operational manuals. We also interviewed OI, DRO and OPLA headquarters
officials, field officers, and field attorneys to identify the types of
oversight that are in place. We examined what controls were in place to
provide assurance that removal decisions are consistent with
established policies, procedures, and guidelines across field offices,
and examined whether these controls were designed to be consistent with
the internal control standards. We did not test ICE controls in place
as part of our review. We also interviewed headquarters officials
responsible for overseeing ICE's enforcement operations to examine
controls in place to monitor enforcement activities. We met with ICE
headquarters officials responsible for overseeing ICE databases
containing information pertinent to alien apprehension and removal
outcomes, and we inquired about information collected in these
databases regarding officer decision making, including cases involving
humanitarian issues and cases involving aliens who are not targets of
ICE investigations. We also interviewed ICE officers, supervisors, and
management personnel at the ICE field offices we visited to identify
the types of supervisory reviews and approvals required for decisions
made by ICE officers and attorneys and the documentation to be reviewed
and approved by supervisors in regard to these decisions. We reviewed
data on alien apprehensions for worksite enforcement operations, for
fiscal year 2002 through fiscal year 2007, to identify trends in ICE's
expanded enforcement efforts. We also reviewed data on alien
apprehensions resulting from fugitive operations. To determine the
reliability of the data, we interviewed headquarters officials
responsible for overseeing and verifying the data, reviewed existing
documentation regarding the data, and interviewed headquarters
officials responsible for tracking statistics pertaining to the data.
We conducted our work between August 2006 and September 2007 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20525:
[hyperlink, http:///www.dhs.gov]:
October 4, 2007:
Mr. Richard M. Stana:
Director, Homeland Security and Justice:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Mr. Stana:
Thank you for the opportunity to review and comment on the report
titled "Immigration Enforcement: ICE Could Improve Controls to Help
Guide Alien Removal Decision Making," GAO-08-67SU.
The following is our response to the recommendations.
Recommendation 1: Develop timeframes for updating existing policies,
guidelines, and procedures for alien apprehension and removals and
include in the updates factors that should be considered when officers
make apprehensive, charging, and detention determinations for aliens
with humanitarian issues.
Response: Concur. During calendar year 2008, ICE's Office of Detention
and Removal Operations (DRO) will reevaluate and republish all existing
policies, guidelines, and procedures pertaining to discretion.
Recommendation 2: Develop a mechanism to help ensure that officers are
consistently provided with updates regarding legal developments
necessary for making alien apprehension and removal decisions.
Response: Concur: ICE believes that policies are currently in place to
address the needs of the operational components for up-to-date legal
guidance. As the draft report recognizes, the primary means by which
officers and agents are advised of legal developments is via the local
Offices of the Chief Counsel. Each Chief Counsel and their staff
monitor developments in the law, and use their experience and
professional judgment to decide which of those developments merit
dissemination to the officers and agents within their areas of
responsibility. This localized process reflects the fact that
significant developments in case law often result from decisions of the
twelve United States Courts of Appeal. These decisions generally have
no application outside the geographic boundaries of the circuit in
which they arise. In addition, various circuit courts often decide the
same legal issue in differing and even contradictory ways. By relying
primarily upon the local chief counsel to analyze and disseminate new
developments in the law, ICE benefits from the professional experience
of its most senior field attorneys in offices throughout the country.
ICE recognizes the consistency in the dissemination of legal updates is
of great importance to agents and officers. To that end, ICE will look
to develop best practices to ensure the latest legal updates are
disseminated to agents and officers through each Chief Counsel's
Office.
Recommendation 3: Evaluate the cost and alternatives of developing a
reporting mechanism by which ICE senior managers can analyze trends in
the use of discretion to help identify areas that may require
management actions-such as changes to guidance, procedures, and
training.
Response: Concur. ICE anticipates initiating this evaluation by
December 1, 2007.
We thank you again for the opportunity to review the draft report and
provide comments.
Sincerely,
Signed by:
Steven J. Pecinovsky:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Richard M. Stana, (202) 512-8777:
Staff Acknowledgments:
In addition to the above, John F. Mortin, Assistant Director; Teresa
Abruzzo; Joel Aldape; Frances Cook; Katherine Davis; Kathryn Godfrey;
Wilfred Holloway; and Ryan Vaughan made key contributions to this
report.
[End of section]
Footnotes:
[1] ch. 477, 66 Stat. 163 (1952) (codified as amended in scattered
sections of 8 U.S.C.)
[2] Aliens fall into two categories: (1) nonimmigrant aliens who enter
the United States for leisure or temporary work and (2) immigrant
aliens who may be able to obtain lawful permanent residence in the
United States.
[3] In addition, DRO has a Criminal Alien Program, which is designed to
identify removable foreign nationals currently serving sentences in
federal, state, or local prisons--as well as individuals not in custody
who are on probation or parole--with the goal of removing them from the
country at the end of their sentence, rather than releasing them back
into the U.S. population where they might commit further crimes.
[4] Aliens who agree to voluntary departure can be legally admitted to
the United States in the future without penalty. The authority for
voluntary departure is outlined in section 240B(a) of the Immigration
and Nationality Act (INA) (8 U.S.C. § 1229c(a)) and its implementing
regulations (8 C.F.R. § 240.25). OI and DRO field operational manuals
also include guidance on voluntary departure and ICE officers told us
that they can grant voluntary departure. We noted that ICE manuals and
field officers use the terms "voluntary departure" and "voluntary
return" interchangeably. In this report, we use the term "voluntary
departure," rather than "voluntary return" when discussing this removal
option.
[5] GAO, Standards for Internal Control in the Federal Government, GAO/
AIMD-00-21.3.1 (Washington, D.C.: November 1999). Internal control is
an integral component of an organization's management that provides
reasonable assurance that the following objectives are being achieved:
effectiveness and efficiency of operations, reliability of financial
reporting, and compliance with applicable laws and regulations.
[6] Federal regulations do not authorize ICE attorneys to initiate
formal removal proceedings (8 C.F.R § 239.1).
[7] GAO/AIMD-00-21.3.1.
[8] These policies refer to mandatory restrictions outlined in the INA
and a Department of Homeland Security memorandum.
[9] These mandatory detention requirements are outlined in the INA and
in an October 2004 Department of Homeland Security memorandum on
detention priorities.
[10] These policies and guidelines are outlined in the DRO field
operational manual and the INA and implementing regulations.
[11] GAO/AIMD-00-21.3.1.
[12] GAO/AIMD-00-21.3.1.
[13] Supervisory special agents and supervisory detention and
deportation officers are granted the authority to issue and cancel NTAs
under federal regulations.
[14] Pew Hispanic Center, The Size and Characteristics of the
Unauthorized Migrant Population in the U.S. (Washington D.C.) March 7,
2006.
[15] Requirements for detaining aliens are outlined in the INA and DHS
memorandums. For example, the INA stipulates that aggravated felons,
aliens who are threats to national security, and categories of fugitive
aliens must be detained by ICE officers if apprehended. In limited
circumstances, such as when necessary to protect aliens who are
cooperating with a major criminal investigation, the INA authorizes the
release from custody of certain criminal aliens who do not pose a
threat to public safety and are likely to appear for proceedings.
[16] The INA prohibits officers from granting voluntary departure to
aggravated felons and aliens engaged or likely to engage in terrorist
activities.
[17] Examples of mandated detention cases include aliens who are
aggravated felons and terrorists.
[18] GAO/AIMD-00-21.3.1.
[19] Examples of severe medical illnesses listed in memo include kidney
failure, cancer, HIV/AIDS, or significant pregnancy complications.
[20] The INA mandates detention for certain categories of aliens, such
as most criminal aliens.
[21] In August 2007, a DRO official also told us that ICE operational
plans include guidance on processing juveniles encountered during
fugitive operations. According to this official, the guidance is
designed to help officers determine whether juveniles should be placed
with families or in the custody of child care agencies in the
jurisdiction where the operation occurred. The official did not provide
copies of operational plans containing this guidance and the plans
provided to us before August 2007 did not include guidance on
processing juveniles encountered during fugitive operations.
[22] In addition, ICE supervisors are authorized to issue NTAs and
grant voluntary departure under federal regulations: 8 CFR § 239.1
(NTAs) and 8 CFR § 240.25 (voluntary departure).
[23] The Office of Professional Responsibility, among other things,
inspects and reviews ICE offices, operations, and processes so as to
provide executive management with independent reviews of the agency's
organizational health.
[24] GAO/AIMD-00-21.3.1.
[25] According to OI's field operations manual and training materials,
after-action reports must be completed within 1 business day of an
operation.
[26] DHS, Office of Inspector General, Office of Audits, Detention and
Removal of Illegal Aliens, OIG-06-33 (Washington, D.C.: April 2006).
[27] GAO, Standards for Internal Control in the Federal Government,
GAO/AIMD-00-21.3.1 (Washington, D.C.: November 1999). We used the
criteria in GAO's Standards for Internal Control in the Federal
Government, GAO/AIMD 00-21.3.1, dated November 1999. These standards,
issued pursuant to the requirements of the Federal Managers' Financial
Integrity Act of 1982 (FMFIA), provide the overall framework for
establishing and maintaining internal control in the federal
government. Also pursuant to FMFIA, the Office of Management and Budget
issued Circular A-123, revised December 21, 2004, to provide the
specific requirements for assessing the reporting on internal controls.
Internal control standards and the definition of internal control in
Circular A-123 are based on the GAO Standards for Internal Control in
the Federal Government.
[28] Federal regulations do not authorize ICE attorneys to initiate
formal removal proceedings (8 C.F.R § 239.1). However, ICE attorneys
can advise officers, supervisors, and managers when they apprehend
aliens and initiate removal proceedings, and these attorneys have the
authority to recommend that ICE supervisors cancel a notice to appear
(NTA), or if the NTA has been filed with immigration court, ask the
court to terminate removal proceedings.
[29] GAO/AIMD-00-21.3.1.
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