Combating Alien Smuggling
Opportunities Exist to Improve the Federal Response Gao ID: GAO-05-305 May 27, 2005Globally, alien smuggling generates billions of dollars in illicit revenues annually and poses a threat to the nation's security. Creation of the Department of Homeland Security (DHS) in March 2003 has provided an opportunity to use financial investigative techniques to combat alien smugglers by targeting and seizing their monetary assets. For instance, the composition of DHS's largest investigative component--U.S. Immigration and Customs Enforcement (ICE)--includes the legacy Customs Service, which has extensive experience with money laundering and other financial crimes. Another DHS component, U.S. Customs and Border Protection (CBP) has primary responsibility for interdictions between ports of entry. In summer 2003, ICE announced that it was developing a national strategy for combating alien smuggling. Among other objectives, GAO determined the implementation status of the strategy and investigative results in terms of convictions and seized assets.
As of April 2005, ICE had not finalized its strategy for combating alien smuggling. ICE was adjusting the draft strategy to focus on the southwest border and encompass all aspects of smuggling, aliens as well as drugs and other contraband. In adjusting the strategy, ICE officials stressed the importance of incorporating lessons learned from ongoing follow-the-money approaches such as Operation ICE Storm, a multi-agency task force launched in October 2003 to crack down on migrant smuggling and related violence in Arizona. Also, the strategy's effectiveness depends partly on having clearly defined roles and responsibilities for ICE and CBP, two DHS components that have complementary antismuggling missions. In this regard, ICE and CBP signed a memorandum of understanding in November 2004 to address their respective roles and responsibilities, including provisions for sharing information and intelligence. Currently, however, there is no mechanism in place for tracking the number and the results of referrals made by CBP to ICE for investigation. CBP and ICE officials acknowledged that establishing a tracking mechanism could have benefits for both DHS components. Such a mechanism would help ICE ensure that appropriate action is taken on the referrals. Also, CBP could continue to pursue certain leads if ICE--for lack of available resources or other reasons--cannot take action on the referrals. In fiscal year 2004, about 2,400 criminal defendants were convicted in federal district courts under the primary alien-smuggling statute, and ICE reported seizures totaling $7.3 million from its alien-smuggling investigations. For the first 6 months of fiscal year 2005, ICE reported $7.8 million in seizures from alien-smuggling investigations. A concern raised by ICE and the Department of Justice is the lack of adequate statutory civil forfeiture authority for seizing real property, such as "stash" houses where smugglers hide aliens while awaiting payment and travel arrangements to final destinations throughout the nation. However, Justice does not have a legislative proposal on this subject pending before Congress because the department's legislative policy resources have been focused on other priorities.
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-05-305, Combating Alien Smuggling: Opportunities Exist to Improve the Federal Response
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Report to the Chairman, Subcommittee on Immigration, Border Security,
and Claims, Committee on the Judiciary, House of Representatives:
United States Government Accountability Office:
GAO:
May 2005:
Combating Alien Smuggling:
Opportunities Exist to Improve the Federal Response:
GAO-05-305:
GAO Highlights:
Highlights of GAO-05-305, a report to the Chairman, Subcommittee on
Immigration, Border Security, and Claims, Committee on the Judiciary,
House of Representatives:
Why GAO Did This Study:
Globally, alien smuggling generates billions of dollars in illicit
revenues annually and poses a threat to the nation's security. Creation
of the Department of Homeland Security (DHS) in March 2003 has provided
an opportunity to use financial investigative techniques to combat
alien smugglers by targeting and seizing their monetary assets. For
instance, the composition of DHS's largest investigative component--
U.S. Immigration and Customs Enforcement (ICE)--includes the legacy
Customs Service, which has extensive experience with money laundering
and other financial crimes. Another DHS component, U.S. Customs and
Border Protection (CBP) has primary responsibility for interdictions
between ports of entry. In summer 2003, ICE announced that it was
developing a national strategy for combating alien smuggling. Among
other objectives, GAO determined the implementation status of the
strategy and investigative results in terms of convictions and seized
assets.
What GAO Found:
As of April 2005, ICE had not finalized its strategy for combating
alien smuggling. ICE was adjusting the draft strategy to focus on the
southwest border and encompass all aspects of smuggling, aliens as well
as drugs and other contraband. In adjusting the strategy, ICE officials
stressed the importance of incorporating lessons learned from ongoing
follow-the-money approaches such as Operation ICE Storm, a multi-agency
task force launched in October 2003 to crack down on migrant smuggling
and related violence in Arizona. Also, the strategy's effectiveness
depends partly on having clearly defined roles and responsibilities for
ICE and CBP, two DHS components that have complementary antismuggling
missions. In this regard, ICE and CBP signed a memorandum of
understanding in November 2004 to address their respective roles and
responsibilities, including provisions for sharing information and
intelligence. Currently, however, there is no mechanism in place for
tracking the number and the results of referrals made by CBP to ICE for
investigation. CBP and ICE officials acknowledged that establishing a
tracking mechanism could have benefits for both DHS components. Such a
mechanism would help ICE ensure that appropriate action is taken on the
referrals. Also, CBP could continue to pursue certain leads if ICE--for
lack of available resources or other reasons--cannot take action on the
referrals.
In fiscal year 2004, about 2,400 criminal defendants were convicted in
federal district courts under the primary alien-smuggling statute, and
ICE reported seizures totaling $7.3 million from its alien-smuggling
investigations. For the first 6 months of fiscal year 2005, ICE
reported $7.8 million in seizures from alien-smuggling investigations.
A concern raised by ICE and the Department of Justice is the lack of
adequate statutory civil forfeiture authority for seizing real
property, such as "stash" houses where smugglers hide aliens while
awaiting payment and travel arrangements to final destinations
throughout the nation. However, Justice does not have a legislative
proposal on this subject pending before Congress because the
department's legislative policy resources have been focused on other
priorities.
Aliens Held in "Stash" House in Southern California:
[See PDF for image]
[End of figure]
What GAO Recommends:
To enhance the federal response to alien smuggling, GAO recommends that
(1) the Secretary of Homeland Security establish a mechanism for
tracking the results of referrals made by CBP to ICE and (2) the
Attorney General consider developing and submitting to Congress a
legislative proposal, with appropriate justification, for amending the
civil forfeiture authority for alien smuggling. The departments agreed.
www.gao.gov/cgi-bin/getrpt?GAO-05-305.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Rich Stana at (202) 512-
8777 or stanar@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
ICE's Strategy for Combating Alien Smuggling Not Yet Issued:
Prosecutions and Convictions Pursued in Alien-Smuggling Cases; Asset
Seizures Expected to Increase:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Objectives:
Scope and Methodology:
Data Reliability:
Appendix II: Creation of the Department of Homeland Security Has
Provided New Opportunities for Combating Alien Smuggling:
Seminal Case Cited as New Model for Fighting Alien Smuggling:
Operation ICE Storm Launched in Phoenix: A Focus on Targeting the
Monetary Assets of Smuggling Organizations:
Arizona Border Control Initiative Launched in March 2004:
Expansion of Strategy Beyond Arizona:
Appendix III: Federal Agencies Responsible for Combating Alien
Smuggling:
Department of Homeland Security and Its Components:
Department of Justice and Its Components:
Department of the Treasury and Its Components:
Department of State and Its Components:
Migrant Smuggling and Trafficking Interagency Working Group: An
Overarching Coordination Mechanism:
Human Smuggling and Trafficking Center: Operational Potential Not Yet
Fully Achieved:
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States:
Federal Bilateral Efforts to Work with Foreign Governments:
Multilateral Protocol on Migrant Smuggling:
Federal Efforts to Identify and Seize Smugglers' Funds or Assets
Abroad:
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts:
District of Arizona:
California, Southern District:
Texas, Southern District:
Appendix VI: Possible Effects of Not Having a Civil Forfeiture
Provision for Real Property Used to Facilitate Alien Smuggling:
District of Arizona:
Central District of California:
Southern District of Texas:
Appendix VII: Comments from the Department of Homeland Security:
Tables:
Table 1: Number of Defendants Convicted (under 8 U.S.C. § 1324) in
Federal Courts for Smuggling Unlawful Aliens, Fiscal Years 1995 through
2004:
Table 2: Amount of ICE Seizures from Alien-Smuggling Investigations,
Fiscal Year 2004:
Table 3: Amount of ICE Seizures from Alien-Smuggling Investigations
(Oct. 1, 2004, to Mar. 31, 2005):
Table 4: National Overview of ICE Investigative Hours Worked by
Program, Fiscal Year 2004:
Table 5: Federal, State, and Local Composition of Operation ICE Storm
(Arizona):
Table 6: Federal Departments and Components Responsible for Combating
Alien Smuggling:
Table 7: Analytical Support Provided by FinCEN for Alien-Smuggling
Cases (Oct. 2000 through Aug. 2004):
Table 8: District of Arizona Alien-Smuggling Cases Reported by U.S.
Attorney's Office Press Releases (January to June 2004):
Table 9: Southern District of California Alien-Smuggling Cases Reported
by U.S. Attorney's Office Press Releases (January to June 2004):
Table 10: Southern District of Texas Alien-Smuggling Cases Reported by
U.S. Attorney's Office Press Releases (January to June 2004):
Abbreviations:
CAFRA: Civil Asset Forfeiture Reform Act of 2000:
CBP: Customs and Border Protection:
DHS: Department of Homeland Security:
FBI: Federal Bureau of Investigation:
FinCEN: Financial Crimes Enforcement Network:
ICE: Immigration and Customs Enforcement:
INS: Immigration and Naturalization Service:
IRS-CI: Internal Revenue Service-Criminal Investigation:
MLAT: Mutual Legal Assistance Treaty:
United States Government Accountability Office:
Washington, DC 20548:
May 27, 2005:
The Honorable John N. Hostettler:
Chairman:
Subcommittee on Immigration, Border Security, and Claims:
Committee on the Judiciary:
House of Representatives:
Dear Mr. Chairman:
Globally, alien smuggling generates illicit revenues estimated to total
billions of dollars annually and is recognized as a significant and
growing problem that can pose a serious threat to the security of the
United States, a primary destination country. Our May 2000 report noted
that although it is likely that most aliens smuggled into the United
States seek economic opportunities, some are brought into the United
States as part of criminal or terrorist enterprises.[Footnote 1] This
concern has heightened since September 11, 2001. Creation of the
Department of Homeland Security (DHS) in March 2003 has provided new
opportunities to more effectively combat alien smuggling, particularly
in reference to using financial investigative techniques to target and
seize the monetary assets of smuggling organizations. For instance, the
department's largest investigative component--U.S. Immigration and
Customs Enforcement (ICE)--integrates the legal authorities and
investigative tools of the legacy Immigration and Naturalization
Service (INS) and the Customs Service, which has extensive experience
in combating money laundering and other financial crimes.
Accordingly, at congressional hearings in June and July 2003, ICE
officials testified that ICE was developing a national strategy to
dismantle criminal and terrorist organizations that smuggle or traffic
in people by tracing and stripping away their monetary assets. This
report addresses the following principal questions:
* What is the implementation status of ICE's strategy for combating
alien smuggling, particularly regarding efforts to use financial
investigative techniques to follow the money trail and seize the
monetary assets of smuggling organizations?
* Since the creation of DHS and ICE, what results have been achieved
from alien-smuggling investigations in terms of prosecutions and
convictions, as well as seizures of smugglers' monetary assets?
Also, to provide supplementary and contextual perspectives on the
federal response to alien smuggling, appendix III of this report
presents an overview of the roles of various federal agencies--DHS
components such as ICE and U.S. Customs and Border Protection (CBP), as
well as components of the Departments of Justice, the Treasury, and
State; and appendix IV discusses federal efforts to work with the
governments of source and transit countries to reduce the flow of
smuggled aliens into the United States.
To address these questions and topics, we interviewed responsible
officials at and reviewed relevant documentation obtained from the
Departments of Homeland Security, Justice, the Treasury, and State and
their components. Regarding ICE's strategy for combating alien
smuggling, we interviewed ICE officials to determine its implementation
status and the extent to which it includes a focus on following the
money trail. Regarding prosecutions and convictions in alien-smuggling
cases, we obtained relevant statistics from the Executive Office for
U.S. Attorneys. Regarding seizures of monetary assets, we obtained data
from the federal government's applicable asset forfeiture funds. We
discussed the sources of these data with federal agency officials and
worked with them to resolve any inconsistencies. We determined that the
data were sufficiently reliable for the purposes of this review. Also,
to more fully understand and illustrate the results of alien-smuggling
investigations, we identified and summarized recent alien-smuggling
cases prosecuted in federal district courts in three districts--the
District of Arizona, the Southern District of California, and the
Southern District of Texas--each of which is coterminous with the U.S.-
Mexico, or southwest, border (see app. V).[Footnote 2] To identify
recent alien-smuggling cases federally prosecuted in these districts,
we reviewed press releases issued by the respective U.S. Attorney's
Office during January through June 2004. We discussed each of these
cases with U.S. Attorney's Office and ICE officials. Because these
cases were selected using a nonprobabilistic method, they are not
representative of all cases in the districts or nationwide. We
conducted our work from April 2004 to March 2005 in accordance with
generally accepted government auditing standards. Appendix I presents
more details about our objectives, scope, and methodology.
Results in Brief:
Although its development was announced as early as June 2003, ICE's
national strategy for combating alien smuggling had not been finalized
as of April 2005. In the absence of a national strategy, ICE used
various means to provide interim guidance to investigators. ICE
officials said the draft strategy was being adjusted to broadly cover
all aspects of smuggling, encompassing aliens as well as drugs and
other illegal contraband, and to focus initially on the southwest
border. Officials stressed the importance of incorporating lessons
learned from ongoing follow-the-money approaches before issuing the
strategy. An example of such an approach is Operation ICE Storm, a
multi-agency task force launched in October 2003 to crack down on
migrant smuggling and related violence in Arizona. Another reason for
the strategy's continuing development period is that the working
relationship of ICE and CBP is still evolving. The strategy's
effectiveness depends partly on having clearly defined roles and
responsibilities for these two DHS components, which have complementary
antismuggling missions. In this regard, ICE and CBP signed a memorandum
of understanding in November 2004 to address their respective roles and
responsibilities, including provisions for sharing information and
intelligence. Currently, however, there is no mechanism in place for
tracking the number and the results of referrals or leads made by CBP
to ICE for investigation. Without such a mechanism, there may be missed
opportunities for identifying and developing cases on large or
significant alien-smuggling organizations. CBP and ICE officials
acknowledged that establishing a tracking mechanism could have benefits
for both agencies. Such a mechanism would help ICE ensure that
appropriate action is taken on the referrals. Also, CBP could continue
to pursue certain leads if ICE--for lack of available resources or
other reasons--cannot take action on the referrals. This report
recommends that the Secretary of Homeland Security establish a referral-
tracking mechanism. DHS agreed with our recommendation.
In fiscal year 2004, about 2,400 criminal defendants were convicted in
federal district courts under section 274 of the Immigration and
Nationality Act, the primary statute for prosecuting alien
smuggling.[Footnote 3] Further, for fiscal year 2004, ICE reported
seizures totaling $7.3 million from its alien-smuggling investigations-
-plus an additional $5.3 million generated by the state of Arizona
under Operation ICE Storm. ICE officials anticipate increased seizures
from alien-smuggling investigations in future years, as ICE more
broadly applies its financial and money-laundering expertise. For the
first 6 months of fiscal year 2005, for instance, ICE officials
reported seizures of $7.8 million. The officials cautioned, however,
that there are competing demands for investigative resources and also
noted that alien-smuggling cases, in contrast to drug-trafficking
cases, are much less likely to result in large seizures of currency.
But, even absent seizures of money or other assets from alien
smugglers, ICE officials noted the importance of applying financial
investigative expertise in appropriate cases to determine the scope and
operational patterns of alien-smuggling organizations, identify the
principals, and obtain evidence to build prosecutable cases. Regarding
potential forfeitures in alien-smuggling cases, ICE and Department of
Justice officials said that a concern for investigators is lack of
adequate statutory civil forfeiture authority for seizing real
property, such as "stash" houses, used to facilitate the smuggling of
aliens. According to Justice, analysis of civil and criminal forfeiture
statutes generally has led the department to conclude that a statute
that provides only for criminal and not civil forfeiture of
facilitating property will be inadequate in such cases, and
investigative experience indicates that these cases are numerous.
Justice officials noted, however, that the department has not developed
and submitted to Congress a legislative proposal because the
department's legislative policy resources have been focused on other
priorities. This report recommends that the Attorney General, in
collaboration with the Secretary of Homeland Security, consider
developing and submitting to Congress a legislative proposal, with
appropriate justification, for amending the civil forfeiture authority
for alien smuggling. The Department of Justice agreed with our
recommendation.
Background:
By definition, alien smuggling (sometimes called people smuggling or
human smuggling) is transnational in that it involves more than one
country and also usually involves persons who have consented to be
transported to another country. This activity generally produces short-
term profits for the smugglers. That is, after the aliens reach their
final destinations, they have no continuing relationship with the
smugglers. In legal and diplomatic references, alien smuggling is
distinct from human trafficking, although both smuggling and
trafficking may have similarities or common elements. In human
trafficking, the criminality and human rights abuses--such as coercion
for prostitution, labor sweat shops, or other exploitative purposes and
servitude arrangements--may continue after the migrants reach the
United States in order to produce both short-term and long-term
profits. Whereas a trafficked person is a victim, an alien who consents
to be smuggled is subject to criminal processing and deportation.
Given the underground nature of alien smuggling, exact figures
quantifying the size or scope of this transnational crime are not
available. Nonetheless, estimates by the United Nations and the federal
law enforcement and intelligence communities indicate that people
smuggling is a huge and highly profitable business worldwide, involving
billions of dollars annually, and the United States is a major
destination country. People smuggling is a continuously growing
phenomenon, according to the International Criminal Police Organization
(Interpol). The types of smugglers can range from opportunistic
business owners who seek cheap labor to well-organized criminal groups
that engage in alien smuggling, drug trafficking, and other illegal
activities. Partly because of increased border monitoring by
governments, Interpol has noted that criminal networks increasingly
control the transnational flow of migrants. That is, willing illegal
migrants increasingly rely on the services of criminal syndicates that
specialize in people smuggling, even though traveling conditions may be
inhumane and unsafe.
Alien smuggling generally is prosecuted under section 274 of the
Immigration and Nationality Act, which prohibits knowingly or
recklessly bringing in, transporting, or harboring certain
aliens.[Footnote 4] Depending on the conduct charged, a conviction
under section 274 could result in a maximum penalty of 10 years'
imprisonment per alien smuggled. Moreover, significant enhanced
penalties are provided for some section 274 violations that involve
serious bodily injury or placing life in jeopardy. If certain
violations result in the death of any person, the convicted defendant
may be punished by imprisonment for any term of years or be subjected
to a death sentence.[Footnote 5] Other federal criminal statutes may
also be applicable. Specifically, alien-smuggling-related offenses are
among the list of Racketeer Influenced and Corrupt Organizations
predicate offenses (18 U.S.C. § 1961(1)) and also are included within
the definition of specified unlawful activity for purposes of the money-
laundering statute (18 U.S.C. § 1956). Further, criminal and civil
forfeiture statutes may apply to alien-smuggling cases.
Although ICE is a primary DHS component for investigating alien
smuggling, combating the smuggling of aliens into the United States can
involve numerous federal agencies, as well as the cooperation and
assistance of foreign governments. In addition to ICE, other relevant
DHS components are the Border Patrol (a "front-line defender"), which
is now part of CBP, and the U.S. Coast Guard, which is tasked with
enforcing immigration law at sea. Additionally, significant roles in
combating alien smuggling are carried out by Department of Justice
components, including the Criminal Division, the Federal Bureau of
Investigation (FBI), and U.S. Attorney's Offices, and Department of the
Treasury components, such as Internal Revenue Service (Criminal
Investigation) and the Financial Crimes Enforcement Network (FinCEN).
Further, Department of State components have significant roles. For
instance, the Bureau of Diplomatic Security--the law enforcement arm of
the State Department--is statutorily responsible for protecting the
integrity of U.S. travel documents. Perhaps the most coveted and sought
after travel documents in the world are U.S. passports and visas. Alien
smuggling and travel document fraud often are inextricably linked.
The March 2003 creation of DHS, including its largest investigative
component (ICE), ushered in an opportunity for developing a strategy to
combat alien smuggling by, among other means, using financial
investigative techniques. Two months later, in May 2003, ICE used such
techniques to follow the money and prosecute the perpetrators of a
smuggling operation that had resulted in the deaths of 19 aliens in
Victoria, Texas. The Victoria 19 case has been cited by ICE as
representing a new model for fighting alien smuggling--a model that ICE
(1) subsequently used to launch a multi-agency task force (Operation
ICE Storm) in the Phoenix (Arizona) metropolitan area and (2)
reportedly was using to develop ICE's national "Antismuggling/Human-
Trafficking Strategy."[Footnote 6]
ICE's Strategy for Combating Alien Smuggling Not Yet Issued:
Although its development was announced as early as June 2003, a
national strategy for combating alien smuggling had not been finalized
and implemented by ICE as of April 2005. In the absence of a national
strategy to combat alien smuggling, including investigating the money
trail, ICE used various means to provide interim guidance to
investigators. ICE officials indicated that the draft strategy was
being adjusted to broadly cover all aspects of smuggling--encompassing
aliens, as well as drugs and other illegal contraband--and to focus
initially on the southwest border. The strategy's continuing
development period is attributable partly to organizational and
training needs associated with integrating the separate and distinct
investigative functions of the legacy INS and the U.S. Customs Service,
following creation of DHS in March 2003. Also, ICE and CBP--two DHS
components with complementary antismuggling missions--signed a
memorandum of understanding in November 2004 to address their
respective roles and responsibilities, including provisions to ensure
proper and timely sharing of information and intelligence. Such sharing
is critical to achieving ICE's investigative objective of determining
"how each single violation ties into the larger mosaic of systemic
vulnerabilities and organized crime." The ability to make such
determinations should be enhanced when DHS components have compatible
or interoperable information technology systems--which is a long-term
goal of an ongoing, multiyear project called the Consolidated
Enforcement Environment. Currently, however, there is no mechanism in
place for tracking the number and the results of referrals or leads
made by CBP to ICE for investigation, including even whether ICE
declined to act on the referrals. Without such a mechanism, there may
be missed opportunities for identifying and developing cases on large
or significant alien-smuggling organizations. For instance, if a
tracking mechanism were in place, CBP could continue pursuing certain
leads if ICE--for lack of available resources or other reasons--does
not take action on the referrals.
National Strategy Announced as Early as June 2003 Is Still in Draft and
Has Changed to Focus on the Southwest Border:
At congressional hearings in June and July 2003, ICE officials
testified that ICE was developing a strategy--the Antismuggling/Human-
Trafficking Strategy--to address alien smuggling and human trafficking
at the national and international levels. The strategy was to
concentrate ICE's efforts in intelligence-driven investigations against
major violators, specifically targeting organizations with ties to
countries that support terrorist organizations such as al
Qaeda.[Footnote 7] A strategic goal was to dismantle the criminal and
terrorist organizations that smuggle or traffic in people by tracing
and stripping away their monetary assets.
In May 2004, in response to our initial inquiry, ICE headquarters
officials told us that the national Antismuggling/Human-Trafficking
Strategy was still in draft and was being vetted among DHS components.
In October 2004, the officials told us that ICE was narrowing the
initial focus of the strategy to the southwest border, between the
United States and Mexico--the most active area in terms of smuggling
activity and open investigations. The officials explained that ICE was
developing a comprehensive southwest border strategy, given the
anticipated displacement of smuggling activity to other areas along the
border resulting from Operation ICE Storm and the Arizona Border
Control Initiative (see app. II). In further elaboration, ICE
headquarters officials said that the southwest border strategy would
broadly cover all aspects of smuggling to encompass aliens as well as
drugs and other illegal contraband. The officials explained that
lessons learned--based, for example, on the results of Operation ICE
Storm and the Arizona Border Control Initiative--indicated that
criminal enterprises tend to smuggle not only people but also drugs,
weapons, counterfeit trade goods, and other illegal contraband. The ICE
officials emphasized that it was important to incorporate these lessons
learned into the southwest border strategy before issuing it. Also, the
officials noted that irrespective of whether smuggling involves aliens
or contraband, ICE can use similar investigative techniques for
following the money trail.
In April 2005, ICE officials told us that the draft southwest border
strategy was in the final stages of review; had been vetted with CBP,
which is ICE's closest partner in the antismuggling arena; and was
expected to be implemented within the next 30 to 60 days. Moreover, the
officials said that, following a certain period of implementation, the
southwest border strategy would be evaluated and expanded into a
nationwide strategy. The officials noted, for instance, that although
there is no one law enforcement strategy totally effective in all areas
of the nation, the methodologies applied in Arizona with both Operation
ICE Storm and the Arizona Border Control Initiative would be evaluated
and tailored for use in other parts of the country.
Continuing Development Period for ICE's Strategy Attributable Partly to
Organizational and Training Needs:
ICE has had to evolve into an organization that integrates the separate
and distinct investigative functions of the legacy INS and the U.S.
Customs Service. As stated in our October 2004 report:
"The integration of INS and Customs investigators into a single
investigative program has involved blending two vastly different
workforces, each with its own culture, policies, procedures, and
mission priorities. Both programs were in agencies with dual missions
that prior to the merger had differences in investigative priorities.
For example, INS primarily looked for illegal aliens and Customs
primarily looked for illegal drugs. In addition, INS investigators
typically pursued administrative violations, while Customs
investigators typically pursued criminal violations."[Footnote 8]
Thus, at the outset of ICE's formation in March 2003, a substantial
amount of cross-training was needed regarding the relevant enforcement
functions and authorities of the respective legacy agencies. As of
October 1, 2003, for example, ICE had about 2,400 legacy INS agents who
were not trained on the subject of money laundering or financial
investigative techniques.
Equally important, legacy Customs agents had to obtain training and
experience in handling immigration-related cases. In several aspects,
alien-smuggling cases can be challenging and time-consuming. ICE and
CBP officials noted, for example, that alien-smuggling cases usually
involve language and humanitarian issues, as well as logistical
challenges and difficulties (e.g., transporting, housing, and
processing aliens). Also, the officials explained that certain
investigative techniques, such as controlled delivery operations used
to develop drug-trafficking cases, are either very difficult or
unavailable in alien-smuggling cases because humans are
involved.[Footnote 9] Further, the officials said that unlike drug-
trafficking cases where the contraband itself is proof of the illegal
activity, the successful prosecution of alien-smuggling cases relies on
the availability of material witnesses (illegal migrants) who often get
terrified before or during trial and change their mind about testifying
against smugglers. The officials noted that this is an everyday
phenomenon--partly because, in an alien-smuggling case, even the best
witness is a party of interest to the crime.
Working Relationship between ICE and CBP Addressed in Memorandums of
Understanding:
The continuing development period for issuing and implementing an
antismuggling strategy also stems partly from the fact that the working
relationship between ICE and CBP is still evolving, as evidenced by two
memorandums of understanding signed by these DHS components in 2004.
ICE and CBP Agreement:
(April 2004):
The March 2003 formation of ICE raised issues about the future of the
antismuggling investigative units that the Border Patrol had
established in sectors and districts along the southwest border. About
a year later, in April 2004, ICE and CBP--two components within DHS--
signed a memorandum of understanding regarding the transition of the
Border Patrol's former antismuggling units to ICE. The memorandum
listed the following general guidelines to facilitate the transition:
* ICE would assume the full burden of administratively supporting,
equipping, and funding the antismuggling units. Existing equipment
would not be transferred from one DHS component to another unless
otherwise mutually agreed upon.
* ICE would have lead responsibility for certain nationally designated
cases as well as Joint Terrorism Task Force cases.
* The Border Patrol would have lead responsibility for all cross-
border, border-related interdiction activities, including check-point
operations.
* The Border Patrol and ICE would be jointly responsible for ensuring
the proper and timely sharing of information and intelligence.
The April 2004 memorandum of understanding also recognized a need to
develop a more comprehensive agreement regarding the working
relationship between ICE investigations and CBP.
ICE and CBP Agreement (November 2004):
In November 2004, ICE and CBP signed a second memorandum of
understanding, which acknowledged that the missions of the two DHS
components "are intricately connected and complementary." The
memorandum stated, for instance, that ICE's Office of Investigations
has primary responsibility for all investigations, while the Border
Patrol has primary responsibility for all interdictions between ports
of entry. The purpose of the November 2004 memorandum of understanding
(a 14-page document) was to comprehensively address the roles and
responsibilities of the Border Patrol and ICE's Office of
Investigations, including provisions for sharing intelligence. To
ensure proper and timely sharing of information and intelligence, the
memorandum stated that colocation of the intelligence assets of ICE and
the Border Patrol is a "best practice and a policy preference."
The November 2004 memorandum of understanding also contains provisions
requiring periodic implementation reviews, which are to be the joint
responsibility of the Assistant Secretary, ICE, and the Commissioner,
CBP. Specifically, the memorandum calls for joint reviews (1) 6 months
from the date of the memorandum, (2) 1 year after its initial effective
date, and (3) thereafter every 2 years or at any time requested by
either party. After these reviews are conducted, the Under Secretary
for the Border and Transportation Security Directorate (or his
designee) is to concur with any modifications to be made to the
memorandum of understanding.
Interim Guidance in Absence of a Strategy:
In the absence of a national strategy to combat alien smuggling,
including investigating the money trail, ICE used various means to
provide interim guidance to investigators. Such guidance included, for
instance, the formation of working groups with members from various
field offices and disciplines, as well as a presentation at a March
2004 conference of special-agents-in-charge and attachés. Moreover, ICE
said it continues to provide guidance to the field in the form of
training seminars and managerial conferences. Also, ICE indicated that
it has posted guidance and policy memorandums to the field on its Web
site, which is available and accessible to agents at their desktops for
reference. According to ICE, the Web site is regularly reviewed and
updated to ensure that the most recent guidance is available to the
field. Additionally, ICE officials said that headquarters staff
routinely travel to field offices to review ongoing undercover
operations and large-scale investigations to help ensure compliance
with existing policies and priorities.
In April 2004, ICE's Office of Investigations electronically
disseminated guidance to all field offices advising them of ICE's
mission and priorities. The guidance noted that, since mission threats
vary by regions or areas of responsibility, field offices have the
latitude to manage their resources to address designated national
priorities in the manner they determine the most effective. The
guidance designated that the major national priorities to be targeted
by field offices consist of three broad investigative categories--
smuggling, financial, and national security. Also, the guidance
explained that all investigative priorities tie together through the
Cornerstone initiative,[Footnote 10] which:
"is now evolving far beyond its initial designation as an umbrella
financial program — and represents the essence of what ICE —
[investigators] should be striving for in all disciplines. We should be
focusing our resources on efforts that determine systemic
vulnerabilities that can be exploited by criminal organizations and
terrorists — We should be looking to examine all of our different
investigative activities to see if there is connectivity between them
and to see if this connectivity provides evidence of systemic
vulnerabilities. — We may start each investigation with the most simple
of border violations, but we should always aim to see how each single
violation ties into the larger mosaic of systemic vulnerabilities and
organized crime."
Generally, the ability to identify connectivity or the larger mosaic
depends largely on the effectiveness of information and intelligence
sharing by ICE and CBP--whose working relationship is continuing to
evolve. Also, the necessary technology infrastructure is continuing to
evolve, as discussed in the following section.
Ongoing Project to Improve Information Technology Systems:
A key aspect of implementing any antismuggling strategy is the
interagency sharing of information and intelligence. Such sharing is
critical to achieving ICE's investigative objective of determining "how
each single violation ties into the larger mosaic of systemic
vulnerabilities and organized crime." This analytical connectivity
ability should be enhanced when DHS components have interoperable
information technology systems--the goal of an ongoing, multiyear
project (the Consolidated Enforcement Environment).
The ongoing Consolidated Enforcement Environment project is a
department-level information technology initiative to address the
enforcement and investigative needs of DHS components--ICE, CBP
(including the Border Patrol), U.S. Citizenship and Immigration
Services, Transportation Security Administration, U.S. Coast Guard, and
U.S. Secret Service. In December 2004, ICE officials told us that the
initiative was still in the conceptual stage.
In further perspective, the Consolidated Enforcement Environment
project is part of a larger initiative--the Federal Investigative Case
Management System--that envisions a "common solution platform" to be
used governmentwide to support the missions of investigative agencies.
Here again, this initiative is in its early stages. In September 2004,
DHS and the Department of Justice jointly released a "request for
information" and scheduled an "industry day" to seek submission of
product/solution descriptions that would allow investigative agencies
to "systematically build new and/or evolve existing case management
systems into common case management architecture throughout the federal
government." An interim goal is to have the system's architecture
reflected in business cases submitted for the fiscal year 2006 budget
review. The envisioned common system architecture could have particular
relevance for managing alien-smuggling cases, given that various
federal agencies--including components of the Departments of Homeland
Security, Justice, the Treasury, and State--can be involved in
investigations (see app. III).
Opportunity for Increasing the Utility of Referrals from CBP to ICE:
An important aspect of the working relationship between ICE and CBP
involves referrals of alien-smuggling leads for investigation. The
Border Patrol is the primary DHS component responsible for interdicting
aliens smuggled between ports of entry. Generally, after the Border
Patrol makes an interdiction, the smuggled aliens are separated from
members (drivers, guides, etc.) of the smuggling organization;
interviews are conducted of both groups; sworn statements are solicited
from material witnesses; fingerprints are taken; and other relevant
information is accumulated. Given the large annual volume of
interdictions, the Border Patrol usually refers to ICE's Office of
Investigations only those cases that it believes involve a significant
scope, violence, or other egregious circumstances. To facilitate
investigative efforts, the November 2004 memorandum of understanding
specified, for example, that the Border Patrol is to notify ICE's
Office of Investigations of certain interdiction events, such as the
deaths of aliens, hostage situations, and the arrests of aliens from
special interest countries. During our review, ICE officials stressed
to us the importance of maximizing enforcement efforts by prioritizing
investigations to target the most egregious cases, such as criminal
organizations, violent offenders, and threats against U.S. security.
In addition to making notifications or referrals that result from
tactical interdictions, the Border Patrol also makes referrals to ICE
based on more in-depth or strategic analyses conducted by intelligence
units. That is, the Border Patrol's intelligence units--which are
located in each of the organization's 20 geographical sectors--
routinely analyze alien-smuggling interdictions to develop information
on smuggling patterns and identify leads warranting further
investigation. For these leads, the Border Patrol prepares and submits
target or intelligence folders to ICE. In this regard, the November
2004 memorandum of understanding specified that the Border Patrol would
actively prepare intelligence folders and forward them to ICE on a case-
by-case basis as the need arises.
The memorandum made no mention of tracking either the number or the
results of such referrals. Moreover, headquarters officials at both ICE
and CBP told us there was no mechanism in place for tracking the number
and the results of these referrals, including even whether ICE declined
to act on the referrals. ICE officials noted, however, that
establishment of a tracking mechanism would help ICE ensure that
appropriate action is taken on referrals. Also, in response to our
inquiry at ICE headquarters, the chief of the Human Smuggling and
Trafficking Unit said that implementing a tracking mechanism could have
benefits for both agencies, particularly in reference to identifying
opportunities for developing cases on large or significant alien-
smuggling organizations.
Similarly, CBP headquarters and field officials commented that having a
mechanism for tracking the disposition of investigative referrals to
ICE could have benefits for the Border Patrol. The officials noted, for
instance, that the Border Patrol could continue pursuing leads if ICE-
-for lack of available resources or other reasons--does not take action
on the referrals. Further, the CBP officials said that having
information on the results of referrals--including, if applicable, the
reasons for declinations--could help the Border Patrol develop better
target or intelligence folders in making referrals to ICE.
CBP officials also commented that implementing a tracking mechanism
probably would involve minimal costs while providing substantial
benefits. The CBP officials noted, for instance, that such a mechanism
could consist of recording referrals and monitoring progress or
dispositions.
Prosecutions and Convictions Pursued in Alien-Smuggling Cases; Asset
Seizures Expected to Increase:
About 2,400 criminal defendants were convicted in federal district
courts in fiscal year 2004 under the primary alien-smuggling statute.
According to federal officials we interviewed, most alien-smuggling
prosecutions stem from reactive or interdiction-type cases at the
border, wherein in-depth investigations to follow a money trail either
are not warranted or are precluded by resource and time constraints.
For fiscal year 2004, ICE reported seizures totaling $7.3 million from
its alien-smuggling investigations--plus an additional $5.3 million
generated by the state of Arizona under Operation ICE Storm. Officials
at Treasury's Executive Office for Asset Forfeiture told us they
anticipate that ICE will have increased seizures in fiscal year 2005 or
later, as ICE further applies its financial and money-laundering
expertise to address alien smuggling. Similarly, ICE officials
anticipate increased seizures. In this regard, for the first 6 months
of fiscal year 2005, ICE reported seizures of $7.8 million from alien-
smuggling investigations. Also, according to Justice and ICE officials,
federal efforts to dismantle smuggling organizations could be enhanced
by civil forfeiture authority for real property (such as stash houses)
used to facilitate alien smuggling.
Prosecutions of Alien Smugglers: More than 2,000 Convictions Annually:
The principal federal statute used to prosecute alien smugglers is
section 274 of the Immigration and Nationality Act, which prohibits
knowingly or recklessly bringing in, transporting, or harboring certain
aliens. Under this statute, which is codified at 8 U.S.C. § 1324,
federal prosecutors have obtained more than 2,000 convictions annually
since fiscal year 1999, as table 1 shows.
Table 1: Number of Defendants Convicted (under 8 U.S.C. § 1324) in
Federal Courts for Smuggling Unlawful Aliens, Fiscal Years 1995 through
2004:
Fiscal year: 1995;
Number of defendants convicted under 8 U.S.C. § 1324: 589.
Fiscal year: 1996;
Number of defendants convicted under 8 U.S.C. § 1324: 1,253.
Fiscal year: 1997;
Number of defendants convicted under 8 U.S.C. § 1324: 1,310.
Fiscal year: 1998;
Number of defendants convicted under 8 U.S.C. § 1324: 1,694.
Fiscal year: 1999;
Number of defendants convicted under 8 U.S.C. § 1324: 2,302.
Fiscal year: 2000;
Number of defendants convicted under 8 U.S.C. § 1324: 2,429.
Fiscal year: 2001;
Number of defendants convicted under 8 U.S.C. § 1324: 2,348.
Fiscal year: 2002;
Number of defendants convicted under 8 U.S.C. § 1324: 2,103.
Fiscal year: 2003;
Number of defendants convicted under 8 U.S.C. § 1324: 2,654.
Fiscal year: 2004;
Number of defendants convicted under 8 U.S.C. § 1324: 2,457.
Source: Executive Office for U.S. Attorneys data.
Note: According to Justice, alien-smuggling-related activity also may
have been prosecuted under a variety of other statutes, including 18
U.S.C. § 1543 (passport fraud); 18 U.S.C. § 1544 (misuse of passport);
18 U.S.C. § 1546 (immigration document fraud); 18 U.S.C. § 1028
(identification document fraud); 18 U.S.C. § 201 (bribery of public
official); 18 U.S.C. § 1962 (racketeering activity); 8 U.S.C. § 1325
and 18 U.S.C. § 2 (aiding and abetting illegal entry); and 8 U.S.C. §
1326 (reentry after removal).
[End of table]
Prosecutions of immigration offenses may result from either reactive or
proactive investigations. As the name implies, the first category
(reactive investigations) is analogous to instances where police
officers encounter and instantly react to street crimes as they occur.
Whereas proactive investigations generally have planning and targeting
aspects and may involve undercover operations and the use of electronic
surveillance and other long-term investigative techniques, including
support from ICE's Asset Identification and Removal Groups, which are
specialized units that focus on locating, tracing, and seizing assets
of criminal organizations. Regarding table 1, the Executive Office for
U.S. Attorneys data did not indicate which cases resulted from
proactive versus reactive investigations.
Officials Reported That Most Immigration Offense Cases Are Reactive,
but the Formation of ICE Has Provided an Opportunity for More Proactive
Cases Using Financial Investigative Techniques:
According to the federal officials we interviewed in three federal
judicial districts encompassing much of the southwest border--the
District of Arizona, the Southern District of California, and the
Southern District of Texas--the vast majority of immigration offense
cases are reactive rather than proactive.[Footnote 11] Officials noted,
for instance, that most prosecutions result from interdictions made by
the Border Patrol, the front-line DHS component that functions in a
fast-paced operations tempo and encounters a tremendous volume of
instant cases, wherein in-depth investigations either are not warranted
or are precluded by resource and time constraints.
Nevertheless, the creation of DHS--which included the formation of ICE-
-has provided an opportunity for more proactive investigations of alien-
smuggling organizations, such as using financial investigative
techniques to follow the money trail from smuggling fees. ICE officials
told us that while many of the investigations opened by ICE are the
result of referrals from the Border Patrol and other law enforcement
first-responders, ICE has always been involved in proactive
investigations related to alien smuggling and trafficking.
In response to our inquiry, officials in the Domestic Security Section
of Justice's Criminal Division indicated that the creation of DHS was
an important development and has resulted in an investigative entity
(ICE) that can focus on asset forfeiture and money-laundering offenses
as part of significant alien-smuggling investigations.[Footnote 12]
According to ICE headquarters, significant investigations would
include, for example, alien-smuggling networks identified by the
targeting subgroup of the National Security Council's Migrant Smuggling
and Trafficking Interagency Working Group.
During our visits in September 2004 to ICE field offices responsible
for southwest border areas, we asked to review the files of any closed
alien-smuggling cases that reflected the use of financial investigative
techniques. In response to our inquiries, the field office managers
informed us that their respective offices had not yet completely closed
relevant cases. For instance, ICE officials in the southern district of
Texas said that they were still tracing illegal proceeds in the Salman
case involving the smuggling of Chinese nationals, which is summarized
in appendix V based on press release information. ICE headquarters
officials explained that criminal investigations in which persons are
targeted for prosecution and assets are identified for seizure can
remain open for 1, 2, or more years before being completely closed. The
officials noted that it is not uncommon for targeted individuals to be
arrested, convicted, and sentenced while seized assets are still
pending final disposition through civil or criminal forfeiture
proceedings.
Also, during our field visits in September 2004, we asked U.S.
Attorney's Office officials for their observations regarding whether
there has been an increasing emphasis on the financial aspects of alien-
smuggling investigations since the creation of DHS and ICE. In Arizona,
federal prosecutors emphasized that Operation ICE Storm is a clear
indication of ICE's efforts to become more proactive in alien-
smuggling investigations. Also, federal prosecutors in Texas (Houston)
said the money trail is being pursued when appropriate, such as
proactive cases involving smuggling organizations that are based in the
Far East (e.g., Thailand and certain provinces in the People's Republic
of China) and have networks in Latin America and Mexico. The federal
officials noted that investigations of these cases may include FBI
participation and the use of undercover agents and electronic
surveillance and may result in assets being seized and suspects being
charged with money laundering and violations of the Racketeer
Influenced and Corrupt Organizations Act.
In December 2004, ICE headquarters officials told us that ongoing alien-
smuggling cases in other areas of the nation--Florida, Georgia, New
York, and Washington--were also using financial investigative
techniques and are expected to result in substantial seizures. Because
these cases were ongoing, the officials declined to provide specific
details, other than information already made available to the public.
For example, according to ICE or U.S. Attorney's Office news releases:
* Southern District of Florida: Sixteen people were arrested in
December 2004, following an investigation conducted by ICE in Miami,
New York, and Ecuador. Using immigration documents provided by
undercover agents, the defendants participated in smuggling Ecuadorian
and Chinese nationals into the United States by commercial airline. The
criminal organizations behind the scheme charged as much as $20,000 per
alien.[Footnote 13]
* Northern District of Georgia: In November 2004, federal indictments
were unsealed regarding 19 defendants allegedly connected with an
illegal-alien-smuggling conspiracy. According to the indictments, the
defendants employed hundreds of undocumented aliens in various gas
station/convenience stores in the Atlanta metropolitan area as a means
of attaining higher profits through nonpayment of overtime
compensation, nonpayment of employer-share taxes, and nonpayment of
mandatory employee benefits. Forfeitures amounting to "millions of
dollars" are being sought."[Footnote 14]
* Northern District of New York: From January 1999 through November 17,
2004, the defendants, all operators of various Chinese buffet
restaurants in Albany, Schenectady, Saratoga, Columbia, and Dutchess
Counties, used illegal aliens of Chinese and Mexican nationality as
workers in their restaurants and laundered proceeds from the operation
of those restaurants. Forfeitures are being sought relating to more
than 40 bank accounts, as well as vehicles (allegedly used during the
commission of the offenses) and parcels of real property (allegedly
purchased with the illegal proceeds).[Footnote 15]
* Western District of Washington: In November 2004, the defendant--who
had admitted to organizing a scheme whereby Cambodian children were
taken from their families and represented on immigration forms as
orphans for adoption by American families--was sentenced to 18 months
in prison, 3 years of supervised release, 300 hours of community
service, and more than $60,000 in restitution. Also, the defendant was
ordered to forfeit the proceeds of the crime to the government--a home
in Hawaii worth $1.4 million and a Jaguar car (approximately
$25,000).[Footnote 16]
More recently, in April 2005, ICE officials emphasized to us that ICE
has many ongoing investigations in which criminal organizations are
targeted for alien smuggling violations and their assets are being
targeted for seizure. The officials declined to provide specific
details because disclosure of information could compromise the ongoing
investigations.
Alien-Smuggling Cases: ICE Reported Seizures Totaling $7.3 Million in
2004:
For fiscal year 2004, ICE reported seizures totaling $7.3 million from
alien-smuggling investigations, as table 2 shows.
Table 2: Amount of ICE Seizures from Alien-Smuggling Investigations,
Fiscal Year 2004:
ICE investigation program: Alien smuggling;
Seizure amount: $$3,400,000.
ICE investigation program: Other investigations involving alien
smuggling[A];
Seizure amount: $3,900,000.
Total;
Seizure amount: $$7,300,000.
Source: ICE data.
Note: According to Justice, these seizure amounts may not reflect all
proceeds derived from alien-smuggling investigations. Specifically,
Justice noted that, pursuant to 19 U.S.C. § 2081 and 8 U.S.C. § 1363a,
ICE has the authority to use proceeds from certified undercover
operations to offset the necessary and reasonable expenses of the
operations.
[A] According to ICE, these investigations were money-laundering
investigations linked to human-smuggling violations.
[End of table]
Also, under Operation ICE Storm, the state of Arizona had generated an
additional $5.3 million in seizures, as of September 2004 (see app.
II). Further, at the time of our visit to Phoenix in September 2004,
ICE officials told us that the most significant alien-smuggling cases
under Operation ICE Storm were still being developed. The officials
anticipated that several major smuggling organizations would be the
subjects of arrests and indictments in the coming months. In October
2004, for example, ICE and the Arizona Attorney General's Office
announced that a multi-agency investigation had resulted in state grand
jury indictments of 21 individuals involved in providing criminal
groups with used cars for smuggling illegal immigrants, drugs, or cash.
According to ICE, 11 used car lots located in the Phoenix metropolitan
area were shut down, and 349 cars worth almost $1.4 million were seized
by ICE and the Arizona Attorney General's Office.
To obtain additional perspectives on the results of alien-smuggling
investigations in terms of recovered funds or seized assets, we
contacted Treasury's Executive Office for Asset Forfeiture, which
provides management oversight of the Treasury Forfeiture Fund--the
receipt account for the deposit of nontax forfeitures made pursuant to
laws enforced or administered by the Internal Revenue Service-Criminal
Investigation and DHS components (including ICE, CBP, the U.S. Secret
Service, and the U.S. Coast Guard). Regarding fund deposits since
October 2003 that resulted from alien smuggling cases, Executive Office
for Asset Forfeiture officials commented (in July 2004) substantially
as follows:
* Fund deposits are not tracked by type of case. All member agencies
are mandated to deposit forfeited funds regardless of the type of
investigation.
* Anecdotally, however, as of July 2004, the Executive Office for Asset
Forfeiture has had no real experience with alien-smuggling
investigations that resulted in substantial enforcement actions
(seizures with a value of more than $100,000). But substantial
investigations of any kind (except bulk cash smuggling) go through the
judicial process, which in many cases takes 1 to 3 years from the date
of seizure to perfect the forfeiture.
More recently, we reviewed the Treasury Forfeiture Fund Accountability
Report--Fiscal Year 2004 and found no case highlights regarding alien-
smuggling investigations. The report stated:
"FY 2004 was a robust and unprecedented revenue year for the law
enforcement bureaus participating in the Treasury Forfeiture Fund, with
over $335 million from all sources. — It is our view that the greatest
damage to criminal enterprise can be effected through large
forfeitures, hence we have set a target level of 75 percent of our
currency forfeitures to be high impact forfeitures. Fund Management
works through budgetary and policy means to emphasize high-impact
cases, i.e., those cash forfeiture cases equal to or greater than
$100,000 in value. For FY 2004 we exceeded our target significantly
with 84 percent of our cash forfeiture revenue stemming from high-
impact cases. This is a credit to our law enforcement bureaus and their
dedication to the fight against crime."
To illustrate the types of investigative cases worked by the fund's law
enforcement agencies, the report gave summary highlights of 33 cases--
IRS (17 cases), CBP (8 cases), ICE (5 cases), U.S. Secret Service (2
cases), and U.S. Coast Guard (1 case). None of the 33 case summaries
referenced alien smuggling. The 5 ICE cases involved, respectively, a
bank scam, an adult video store and other businesses seized for
racketeering, counterfeit cigarette traffickers, a counterfeit motion
picture network, and a church fraud scheme. Of the 17 IRS cases, 5 were
narcotics-related investigations, and another 3 involved bulk-cash
seizures in south Texas of approximately $370,000; $993,000; and $5.3
million, respectively.[Footnote 17] Also, of the 8 CBP cases, 4
involved bulk-cash seizures--Nogales, Arizona (about $464,000); Eagle
Pass, Texas (about $518,000); and 2 separate seizures at Rouses Point,
New York (about $991,000 and $995,000).
Alien-Smuggling Cases: Asset Seizures Expected to Increase, although
There Are Caveats:
Treasury's Executive Office for Asset Forfeiture officials told us they
anticipate that ICE's alien-smuggling investigations will begin having
an impact on the fund in fiscal year 2005 or later. The officials
explained that, over time, if ICE applies the financial and money-
laundering expertise of the former Customs Service special agents to
address alien smuggling, ICE should develop an immigrations
investigations program on par with the narcotics, money-laundering,
trade, and export programs--each of which produces significant asset
forfeiture revenue. For instance, according to the Treasury officials,
it is not uncommon for export or trade cases to render plea agreements
for cash forfeitures of tens of millions of dollars.
ICE headquarters officials also told us they anticipate that alien-
smuggling investigations will begin having an impact on the Treasury
Forfeiture Fund in fiscal year 2005 and future years. For the first 6
months of fiscal year 2005, ICE reported seizures totaling $7.8 million
from alien-smuggling investigations, as table 3 shows.
Table 3: Amount of ICE Seizures from Alien-Smuggling Investigations
(Oct. 1, 2004, to Mar. 31, 2005):
ICE investigation program: Alien smuggling;
Seizure amount: $$5,200,000.
ICE investigation program: Other investigations involving alien
smuggling[A];
Seizure amount: $2,600,000.
ICE investigation program: Total;
Seizure amount: $$7,800,000.
Source: ICE data.
[A] According to ICE, these investigations were money-laundering
investigations linked to human-smuggling violations.
[End of table]
Generally, regarding asset seizures and forfeitures from alien-
smuggling investigations, ICE officials noted that there can be
competing demands for investigative resources. The mission of ICE's
Office of Investigations--which has more than 5,000 agents in 26 field
offices nationwide--encompasses a broad array of national security,
financial, and smuggling violations, including narcotics smuggling,
financial crimes, illegal arms exports, commercial fraud, child
pornography/exploitation, immigration fraud, and human trafficking.
Regarding immigration enforcement, the Office of Investigations is
responsible not only for deterring, dismantling, and diminishing the
smuggling and trafficking of aliens but also for minimizing immigrant
benefit fraud, removing employers' access to undocumented workers, and
responding to community complaints about illegal immigration.
Nationally, about 7 percent of ICE's total investigative hours were
devoted to alien-smuggling cases in fiscal year 2004. As noted in table
4, these investigative hours included cases involving alien-smuggling
organizations (5 percent), as well as individuals and groups (2
percent).
In its technical comments on a draft of this report, DHS noted that
other investigative programs conducted by ICE involve criminal
organizations that profit, wholly or in part, from alien smuggling.
Specifically, DHS said that the percentage of ICE's total investigative
hours devoted to alien-smuggling cases in fiscal year 2004 could be up
to 29 percent when, in addition to the 7 percent statistic, other
relevant investigative programs are considered (see table 4)--criminal
alien (12 percent), identity and benefit fraud (5 percent), Joint
Terrorism Task Force (3 percent), and human trafficking (2 percent). In
providing an overall perspective regarding ICE investigative resources
devoted to alien-smuggling cases, we agree that the 7 percent statistic
is properly supplemented by other investigative programs. However,
reporting a 29 percent statistic may be overreaching, given that these
other programs may only partly involve alien smuggling.
Table 4: National Overview of ICE Investigative Hours Worked by
Program, Fiscal Year 2004:
Investigative program: Drugs;
Percentage of all investigative hours worked: 26%.
Investigative program: Financial;
Percentage of all investigative hours worked: 17%.
Investigative program: Other;
Percentage of all investigative hours worked: 16%.
Investigative program: Criminal alien;
Percentage of all investigative hours worked: 12%.
Investigative program: Alien-smuggling and alien absconder (744,337
hours);
Percentage of all investigative hours worked: 7%.
Investigative program: Alien-smuggling and alien absconder: Alien-
smuggling organizations (526,668 hours or 5 percent of total).
Investigative program: Alien-smuggling and alien absconder: Alien-
smuggling individuals/groups (198,763 hours or 2 percent of total).
Investigative program: Alien-smuggling and alien absconder: Alien
absconder (18,906 hours or less than 1 percent of total).
Investigative program: Identity and benefit fraud;
Percentage of all investigative hours worked: 5%.
Investigative program: Child pornography;
Percentage of all investigative hours worked: 4%.
Investigative program: Fraud;
Percentage of all investigative hours worked: 4%.
Investigative program: Strategic;
Percentage of all investigative hours worked: 4%.
Investigative program: Joint Terrorism Task Force;
Percentage of all investigative hours worked: 3%.
Investigative program: Human trafficking;
Percentage of all investigative hours worked: 2%.
Investigative program: Total investigative hours: 10,037,981;
Percentage of all investigative hours worked: 100%.
Source: ICE data.
[End of table]
In further reference to the Treasury Forfeiture Fund, ICE headquarters
officials cautioned that alien-smuggling cases, in comparison with drug
cases, are much less likely to result in seizures of money. The
officials explained that almost all drug deals are conducted in cash;
therefore, it is not unusual for law enforcement to arrest criminals
handling hundreds of thousands or even millions of dollars in drug
money. In contrast, the officials noted that alien-smuggling fees per
person generally involve smaller amounts that are paid by wire
transfers, which present law enforcement the challenge of identifying
consolidation points. ICE officials said that wire transfers reflect a
developing trend by alien smugglers to exploit money services--a trend
that ICE is addressing. For instance, the officials noted that the use
of wire transfers by criminal organizations has been aggressively
investigated during Operation ICE Storm and the Arizona Border Control
Initiative.
From another perspective, Canadian immigration and law enforcement
officials, including Royal Canadian Mounted Police representatives,
told us that alien-smuggling cases that result in seizures of money can
be considered a bonus--that is, such results are more the exception
than the norm. However, even absent seizures of money or other assets
from alien smugglers, ICE headquarters and field office officials
stressed to us the importance and utility of applying financial
investigative expertise in appropriate cases. The officials noted that
such investigative expertise is very useful for determining the scope
and operational patterns of alien-smuggling organizations, identifying
the principals, and obtaining evidence to build prosecutable cases. As
a case in point, the officials cited the Victoria 19 case (see app.
II), which they described as being very successful in dismantling a
smuggling organization, even though the case did not produce
substantial asset seizures or forfeitures.
According to Justice and ICE, Civil Forfeiture Authority Is Not
Adequate to Seize Stash Houses Used by Alien Smugglers:
Regarding potential forfeitures in alien-smuggling cases, Justice and
ICE headquarters officials said a concern for investigators is the lack
of adequate statutory civil forfeiture authority for seizing real
property--particularly stash houses used by smugglers.[Footnote 18]
Asset forfeiture law has long been used by federal prosecutors and law
enforcement as a tool for punishing criminals and deterring further
illegal activity. For instance, as a result of the government's seizure
of vehicles, vessels, and aircraft used to traffic drugs or smuggle
aliens, criminals are prevented from using the property to commit new
crimes. Under current federal law, the government has both criminal and
civil forfeiture authority, but its availability depends on several
factors, including whether there has been a conviction for the
underlying offense and the nature of that offense.
Criminal Forfeiture Authority: Not Available for Fugitive Defendants or
Property Owners Not Indicted:
Criminal forfeiture refers to the seizure of assets in the context of a
criminal prosecution. That is, upon his or her conviction, the
defendant forfeits and the government takes ownership of property that
the defendant used to commit or facilitate the offense or property that
constituted the proceeds of the illegal activity. In alien-smuggling
cases, the current criminal forfeiture authority--codified at 18 U.S.C.
982(a)(6)(A)--provides that in imposing sentence on a person convicted
of an applicable violation, the court:
"shall order that the person forfeit to the United States, regardless
of any provision of State law--(i) any conveyance, including any
vessel, vehicle, or aircraft used in the commission of the offense of
which the person is convicted; and (ii) and property real or personal-
-(I) that constitutes, or is derived from or is traceable to the
proceeds obtained directly or indirectly from the commission of the
offense of which the person is convicted; or (II) that is used to
facilitate, or is intended to be used to facilitate, the commission of
the offense of which the person is convicted."
Before the resolution of a criminal forfeiture action, there must be a
conviction of the defendant based on a high evidentiary standard--the
beyond-a-reasonable-doubt standard. Thus, irrespective of the type of
criminal offense involved, the criminal forfeiture authority is not
available for seizing the property of alleged felons who have fled to
avoid prosecution.
Additionally, in alien-smuggling cases, the use of the criminal
forfeiture authority is rarely an option for seizing rented real
property (e.g., stash houses) used to facilitate the offense. In many
alien-smuggling cases, according to Justice and ICE, the real
properties at issue are not owned by the smugglers; rather, the
properties are rental units, often in distressed areas. Justice and ICE
noted that evidence that the owner of a rented stash house knew about
the illegal activity and intentionally ignored it is not sufficient to
indict the owner for smuggling, and there is rarely evidence of greater
involvement in the offense by the owner; as a result, the criminal
forfeiture option is not available in such cases.
Civil Forfeiture Authority: Innocent Owners Have Statutory Protections:
In contrast to criminal forfeiture procedure, civil forfeiture, in
which the government seizes real property and initiates a civil action
to forfeit the property, does not require that the owner of the
property be charged with a federal offense. Rather, the action is
against the property, and the government would have to demonstrate that
the property is subject to forfeiture under the applicable civil
forfeiture statute for the underlying offense. If the government is
able to do so, the burden would shift to the property owner to prove by
a preponderance of the evidence that he or she was an innocent owner.
The innocent-owner defense is not available to someone who
intentionally turned a blind eye to the illegal use of his or her
property, although such an individual most likely could not be
convicted of the offense involved.
The innocent-owner defense and other substantive and procedural
protections were enacted as part of the Civil Asset Forfeiture Reform
Act of 2000 (CAFRA),[Footnote 19] which was intended to prevent abuses
of civil asset forfeiture law. Before CAFRA's enactment, news articles
and congressional hearings recounted stories of innocent owners of
motels or air transport services who had lost their businesses trying
to meet the legal requirements for recovering their seized property.
CAFRA eliminated or modified some of these requirements. For example,
the burden of proof shifted to the government to show that the property
was subject to forfeiture, rather than the claimant having to prove
that it was not. Also, individuals seeking to recover their property no
longer have to post a bond in order to make a claim.
After CAFRA, in order to forfeit facilitating property that was
purchased with legitimately earned funds, the government must
demonstrate a substantial connection between the use of the property
and the offense. Before CAFRA, some courts had allowed such forfeitures
based on a weaker connection to the crime. CAFRA was written to create
uniform procedures for civil asset forfeiture, regardless of the nature
of the underlying offense. Moreover, CAFRA increased uniformity among
the substantive forfeiture statutes by creating a single definition of
proceeds of the offense, expanding statutes to allow forfeiture of
proceeds if not already allowed, and creating a single innocent-owner
defense with clearer criteria for invoking it. Although its focus was
civil forfeiture, CAFRA also amended the criminal asset forfeiture
provision for alien-smuggling cases, which had been inadvertently
written in a manner that rendered it inoperable when it was enacted as
part of a larger package of legislation addressing immigration law in
1996. There is no evidence in the CAFRA legislative history that
Congress considered expanding civil asset forfeiture in alien-smuggling
cases to include real property used to commit the offense.
Civil Forfeiture Authority: Statutorily Limited in Alien-Smuggling
Cases Compared to Other Criminal Offenses:
Although the CAFRA amendments to criminal and civil forfeiture in alien-
smuggling cases were important, the statutory civil forfeiture
authority in alien-smuggling cases needs further enhancing, according
to Justice and ICE. The current statutory authority for civil
forfeiture of assets used in alien smuggling is codified at 8 U.S.C. §
1324(b) and provides that:
"Any conveyance, including any vessel, vehicle, or aircraft, that has
been or is being used in the commission of a violation of subsection
(a) [of 8 U.S.C. § 1324], the gross proceeds of such violation, and any
property traceable to such conveyance or proceeds, shall be seized and
subject to forfeiture."
It is important to note that the civil forfeiture authority for alien
smuggling is not parallel to the criminal forfeiture provision. Most
notably, the civil provision does not include forfeiture of real
property used to facilitate the offense. Rather, the civil forfeiture
provision addresses only personal property, such as vessels, vehicles,
and aircraft. Thus, under the civil forfeiture statute for alien
smuggling, a house used to hide the aliens, conduct the alien-smuggling
business, etc., could not be forfeited as facilitating
property.[Footnote 20]
This statutory limitation contrasts with provisions in other federal
criminal statutes, which do have parallel civil forfeiture provisions.
That is, civil forfeiture provisions applicable to various criminal
offense categories--including drug trafficking, child pornography, and
money laundering--are available for seizing facilitating real property.
For instance, if a house is used to conduct drug transactions, store
the drugs and money, etc., the house can be forfeited as facilitating
property. In the view of Justice and ICE, regarding civil forfeiture
authority for seizing facilitating real property, the statutory
distinction between alien smuggling and other criminal offenses is
inappropriate.
Justice and ICE Consider the Current Civil Forfeiture Authority
Inadequate:
Justice and ICE consider the current civil forfeiture authority
inadequate to effectively seize real property (stash houses) used to
facilitate alien smuggling. In a December 2004 written response to our
inquiry regarding whether an amendment to 8 U.S.C. § 1324(b) is needed,
Justice emphasized that:
"One of the major remaining omissions in the forfeiture statutes for
alien smuggling offenses is the lack of civil forfeiture authority over
facilitating property other than vessels, vehicles and aircraft. In
particular, there is no civil forfeiture authority over real property
used to conceal illegal aliens or otherwise to facilitate the alien
smuggling offense. — The Department of Justice supports amending
section 1324 to address this problem."
An amendment to the civil forfeiture authority, according to Justice,
would enhance federal efforts to dismantle smuggling organizations
because would-be defendants often are fugitives, which makes criminal
forfeiture unavailable. Also, a civil forfeiture authority for real
property used to facilitate alien smuggling would enable the government
to establish willful blindness arguments against landlords who hope to
profit from such ventures without becoming directly involved. Justice
officials told us in April 2005, however, that the department does not
have a legislative proposal on this subject pending before Congress
because the department's legislative policy resources have been focused
on other priorities.
We asked Justice whether there has been a broad analysis of
investigative case data to determine the scope and significance of the
perceived inadequacy of the current civil forfeiture authority--that
is, an analysis to provide a basis or justification for consideration
of a legislative amendment. In its response, Justice noted that
statistics are not collected on civil forfeiture cases that could not
be brought, such as cases involving real property held by fugitives or
third parties that was used to facilitate alien smuggling. However,
Justice's analysis of civil and criminal forfeiture statutes generally
has led the department to conclude that a statute that provides only
for criminal and not civil forfeiture of facilitating property will be
inadequate in such cases. In addition, Justice officials told us that
investigative experience with alien smuggling has convinced them that
such cases are numerous. Further, in March 2005, Justice provided us
summary examples of recent or pending alien-smuggling cases in which
real property used to facilitate the offense could not be forfeited
because of the absence of statutory civil forfeiture authority (see
app. VI). According to Justice, the summary examples provided are
illustrative of typical cases that recur with great frequency in
federal judicial districts along the southwest border.[Footnote 21]
Expanding civil forfeiture authority in alien-smuggling cases to
include real property used to facilitate the offense may raise some of
the same concerns addressed by CAFRA in 2000. These concerns include
the potential for abuse of this type of forfeiture and the adequacy of
protection for the rights of innocent property owners. CAFRA was
compromise legislation that was developed over several years by
Congress, the Executive Branch, and interest groups. Some observers
felt that the legislation did not provide enough reforms and
protections, while others felt that it went too far and would curtail a
legitimate law enforcement tool. The procedural protections in CAFRA
included specific requirements for real property forfeitures, such as
notice and an opportunity to be heard prior to seizure and judicial, as
opposed to administrative, forfeiture for all real property. CAFRA's
requirement that the government prove a substantial connection between
facilitating property and the underlying offense also would apply to
any expansion of civil forfeiture authority in the alien-smuggling
statute, absent a specific exemption. Views as to whether these CAFRA
protections were adequate likely will affect whether expanding the
civil forfeiture authority to include real property used to facilitate
alien smuggling is seen as striking an appropriate balance of the law
enforcement and the property interests involved.
Conclusions:
Creation of DHS in March 2003 has provided new opportunities to more
effectively combat alien smuggling, particularly in reference to using
financial investigative techniques to target and seize the monetary
assets of smuggling organizations.
However, after more than 2 years, the federal response to alien
smuggling is still evolving, including development and implementation
of a strategy to follow the money trail. Also evolving is the working
relationship of ICE and CBP, two DHS components that have the primary
responsibility for investigating and interdicting alien smugglers.
Having clearly defined roles and responsibilities for these components
is important, given their complementary antismuggling missions. In this
regard, ICE's and CBP's November 2004 memorandum of understanding did
not address a mechanism for tracking the number and the results of
leads referred by CBP to ICE for investigation. If a tracking mechanism
were in place, CBP could continue pursuing certain leads if ICE--for
lack of available resources or other reasons--does not take action on
the referrals. As such, a tracking mechanism would help to further
ensure that large or significant alien-smuggling organizations are
identified and investigated.
Federal law enforcement has concerns that efforts to dismantle alien-
smuggling organizations are constrained by the current absence of civil
forfeiture authority for real property used to facilitate the smuggling
of aliens. In contrast, for drug trafficking and various other criminal
offense categories, civil forfeiture authority is available for seizing
real property used to facilitate these crimes. Our review of CAFRA
legislative history found no evidence that Congress considered
modifying this statutory distinction when CAFRA was enacted. According
to Justice and ICE, the absence of civil forfeiture authority for real
property used to facilitate the smuggling of aliens is inappropriate
because law enforcement is unable in many cases to seize stash houses
where smugglers hide aliens while awaiting payment and travel
arrangements to final destinations throughout the nation. However,
because its legislative policy resources have been focused on other
priorities, Justice has not developed and submitted a legislative
proposal to Congress.
Recommendations for Executive Action:
To enhance the federal response to alien smuggling, we are making two
recommendations. Specifically, we recommend that:
* the Secretary of Homeland Security establish a cost-effective
mechanism for tracking the number and results of referrals by CBP to
ICE, and:
* the Attorney General, in collaboration with the Secretary of Homeland
Security, consider developing and submitting to Congress a legislative
proposal, with appropriate justification, for amending the civil
forfeiture authority for real property used to facilitate the smuggling
of aliens.
Agency Comments and Our Evaluation:
We provided a draft of this report for comment to the Departments of
Homeland Security, Justice, the Treasury, and State. In its written
comments, DHS expressed general agreement with our findings and
outlined steps it planned to take to implement our recommendation on
the establishment of a cost-effective mechanism for tracking the number
and results of referrals by CBP to ICE.
DHS also raised a concern regarding interpretation of the data in table
4 (national overview of ICE's investigative hours worked by program,
fiscal year 2004), noting that the percentage of ICE's total
investigative hours devoted to alien-smuggling cases in fiscal year
2004 could be up to 29 percent when, in addition to the 7 percent
statistic we reported, other relevant investigative programs are
considered. In providing an overall perspective regarding ICE
investigative resources devoted to alien-smuggling cases, we agree that
the 7 percent statistic is properly supplemented by other investigative
programs. However, reporting a 29 percent statistic may be
overreaching, given that these other programs may only partly involve
alien smuggling. The full text of DHS's written comments is reprinted
in appendix VII. DHS also provided technical comments, which we
incorporated in this report where appropriate.
We also received comments via e-mail from designated liaisons at the
Departments of Justice, the Treasury, and State. Justice agreed with
our recommendation to consider developing and submitting to Congress a
legislative proposal, with appropriate justification, for amending the
civil forfeiture authority for real property used to facilitate the
smuggling of aliens. Treasury said that the report accurately and
fairly portrayed the department's role in helping to identify, track,
and attack the financing of alien smuggling. Treasury did not comment
on the two recommendations, which were made to the Secretary of
Homeland Security and the Attorney General, respectively. Similarly,
State concurred with the report but did not comment on the
recommendations. Also, State provided one technical comment, which we
incorporated in this report where appropriate.
As arranged with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
after the date of this report. At that time, we will send copies of
this report to interested congressional committees and subcommittees.
We will also make copies available to others on request. In addition,
this report will be available at no charge on GAO's Web site at
http://www.gao.gov.
If you or your staff have any questions about this report or wish to
discuss the matter further, please contact me at (202) 512-8777 or
Danny Burton at (214) 777-5600. Other key contributors to this report
were Odilon Cuero, Kathleen Ebert, Frances Cook, Jan Montgomery, Mary
K. Muse, Maureen Shields, and David Alexander.
Sincerely yours,
Signed by:
Richard M. Stana:
Director, Homeland Security and Justice:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Objectives:
Our overall purpose was to study the federal response to alien
smuggling, especially efforts of the Department of Homeland Security
(DHS) and its largest investigative component, U.S. Immigration and
Customs Enforcement (ICE). The key questions addressed were as follows:
* What is the implementation status of ICE's strategy for combating
alien smuggling, particularly regarding efforts to use financial
investigative techniques to follow the money trail and seize the
monetary assets of smuggling organizations?
* Since the creation of DHS and ICE, what results have been achieved
from alien-smuggling investigations in terms of prosecutions and
convictions, as well as seizures of smugglers' monetary assets?
Also, to provide supplementary and contextual perspectives on the
federal response to alien smuggling, we obtained overview information
on (1) the roles of various federal agencies--DHS components such as
ICE and U.S. Customs and Border Protection (CBP), as well as components
of the Departments of Justice, the Treasury, and State; and (2) federal
efforts to work with the governments of source and transit countries to
reduce the flow of smuggled aliens into the United States.
Scope and Methodology:
To address these questions and obtain contextual perspectives, we
interviewed responsible officials at and reviewed relevant
documentation obtained from the Departments of Homeland Security,
Justice, the Treasury, and State and their components. Our work focused
on alien smuggling and not human trafficking, although both smuggling
and trafficking may have common elements. In legal and diplomatic
references, alien smuggling is distinct from human trafficking. By
definition, alien smuggling (sometimes called people smuggling or human
smuggling) involves more than one country--that is, alien smuggling
involves procuring illegal entry into a country of which the smuggled
person is neither a citizen nor a lawful permanent resident. Alien
smuggling usually involves persons who have consented to be transported
to another country, and this activity generally produces short-term
profits for the smugglers. That is, after the aliens reach their final
destinations, they have no continuing relationship with the smugglers.
In contrast, the criminality and human rights abuses associated with
human trafficking--such as coercion for prostitution, labor sweat
shops, or other exploitative purposes and servitude arrangements--may
continue after the migrants reach the United States in order to produce
both short-term and long-term profits. Whereas a trafficked person is a
victim, an alien who consents to be smuggled is subject to criminal
processing and deportation.
Initially, in addressing the key questions, we reviewed information
available on the Web sites of the Departments of Homeland Security,
Justice, the Treasury, and State. To obtain additional background and
overview perspectives, we conducted a literature search to identify
relevant reports, studies, articles, and other documents--including
congressional hearing testimony--regarding the federal response to
alien smuggling. For example, at congressional hearings in June and
July 2003, ICE officials testified that ICE was developing a strategy-
-the Antismuggling/Human-Trafficking Strategy--to address alien
smuggling and human trafficking at the national and international
levels and that the strategy would concentrate ICE's efforts in
intelligence-driven investigations against major violators,
specifically targeting organizations with ties to countries that
support terrorist organizations such as al Qaeda.[Footnote 22]
ICE's Strategy for Combating Alien Smuggling:
Regarding ICE's strategy for combating alien smuggling, we interviewed
officials of relevant DHS components, particularly ICE, to determine
the status of the strategy's development and implementation and the
extent to which it included a focus on investigating the money trail
from smuggling fees. The scope of our review was limited because ICE's
strategy for combating alien smuggling had not been finalized as of
April 2005. Rather, ICE was in the process of adjusting the draft
strategy to focus on the southwest border and encompass all aspects of
smuggling, aliens as well as drugs and other contraband.
In the absence of a final strategy, we determined what interim guidance
ICE headquarters had disseminated to its field offices to ensure a
focus on following the money trail in alien-smuggling investigations.
Also, we obtained information about Operation ICE Storm, a multi-agency
task force launched in October 2003 to crack down on migrant smuggling
and related violence in Arizona by, among other means, targeting the
monetary assets of smuggling organizations (see app. II).
Results Achieved from Investigations:
To determine the results that have been achieved from alien-smuggling
investigations in terms of prosecutions and convictions, we obtained
statistics from the Executive Office for U.S. Attorneys. Specifically,
for fiscal years 1995 through 2004, the Executive Office for U.S.
Attorneys provided us data on the number of defendants convicted (under
8 U.S.C. § 1324) in federal courts for smuggling unlawful aliens.
To determine the results that have been achieved from alien-smuggling
investigations in terms of recovered funds or seized assets, we
contacted managers of the federal government's applicable asset
forfeiture funds:
* Asset seizures and forfeitures resulting from alien smuggling cases
accrued to the Department of Justice Forfeiture Fund in 2003 and
previous fiscal years, given that the legacy Immigration and
Naturalization Service was a component of Justice.
* For 2004 and subsequent fiscal years, seizures and forfeitures made
by ICE accrue to the Treasury Forfeiture Fund. The Department of the
Treasury's Executive Office for Asset Forfeiture provides management
oversight of the Treasury Forfeiture Fund, which is the receipt account
for the deposit of nontax forfeitures made pursuant to laws enforced or
administered by DHS components (including ICE, U.S. Customs and Border
Protection, the U.S. Secret Service, and the U.S. Coast Guard) and
Internal Revenue Service-Criminal Investigation.
Further, we obtained perspectives from Justice and ICE on the
usefulness (and limitations) of statutory revisions (under the Civil
Asset Forfeiture Reform Act of 2000) that were intended to enhance the
government's authority to pursue civil forfeiture of the gross proceeds
of alien smugglers.
Also, to more fully understand and illustrate the results of alien-
smuggling investigations, we identified and summarized recent cases
that have been prosecuted in three federal judicial districts--the
District of Arizona, the Southern District of California, and the
Southern District of Texas (see app. V). Each of these federal judicial
districts is coterminous with the U.S.-Mexico, or southwest, border. To
identify alien-smuggling cases federally prosecuted in these districts,
we reviewed press releases issued by the respective U.S. Attorney's
Office during January through June 2004. In this 6-month period, the
three districts issued press releases that covered a collective total
of 23 alien-smuggling cases--District of Arizona (9), Southern District
of California (3), and Southern District of Texas (11). We discussed
these cases with U.S. Attorney's Office and ICE officials in each of
the three districts. Because these cases were selected using a
nonprobabilistic method, they are not representative of all cases in
the districts or nationwide.
Other Departments' Efforts to Help Address Alien Smuggling:
To determine how the Departments of Justice, the Treasury, and State
have helped DHS address alien smuggling, particularly efforts of
smugglers to launder their proceeds, we interviewed component agency
officials and reviewed documentation regarding relevant initiatives,
programs, task forces, or other activities (see app. III). Also, from
the applicable components, we solicited examples of recent alien-
smuggling cases that agency officials considered to be significant, and
we discussed with agency officials the nature and extent of interagency
cooperation in the cases. A limitation is that these cases may not be
representative of the universe.
As an additional probe regarding interagency efforts, we obtained
information about the roles and functioning of relevant coordination
mechanisms, such as (1) the National Security Council's Migrant
Smuggling and Trafficking Interagency Working Group, which has a
targeting subgroup to identify for investigation the most dangerous
international alien-smuggling networks, especially those that pose a
threat to national security and (2) the Human Smuggling and Trafficking
Center, an interagency entity for disseminating intelligence and other
information to address the separate but related issues of alien
smuggling, trafficking in persons, and clandestine terrorist travel.
Working with Source and Transit Countries:
To determine the extent to which federal entities have been working
with the governments of source and transit countries to reduce the flow
of smuggled aliens into the United States, we interviewed officials at
and reviewed documentation obtained from the Departments of Homeland
Security, Justice, the Treasury, and State (see app. IV). We focused on
relevant bilateral efforts with border nations (Mexico and Canada), as
well as other source and transit countries. We discussed bilateral
efforts with representatives of the Mexican and Canadian embassies in
Washington, D.C.
Regarding multilateral efforts, we contacted the Department of State to
obtain information about the implementation status of the "Protocol
against the Smuggling of Migrants by Land, Sea and Air," which is an
agreement supplementing the United Nations Convention against
Transnational Organized Crime.
Data Reliability:
We conducted our work from April 2004 to March 2005 in accordance with
generally accepted government auditing standards. Regarding the results
of alien-smuggling investigations--for example, convictions and asset
seizures and forfeitures--we discussed the sources of the data with
federal agency officials and worked with them to resolve any
inconsistencies. Similarly, regarding ICE investigative hours by
program, as well as analytical support provided for alien-smuggling
cases by the Financial Crimes Enforcement Network, we discussed the
sources of the data with federal agency officials and worked with them
to resolve any inconsistencies. We determined that these data were
sufficiently reliable for the purposes of this review.
Also, appendix III summarizes Department of State data--such as the
number of passports issued and the number of arrests for passport
fraud--that were presented in a fact sheet (dated May 12, 2004).
Because these data are used in our report only for background or
contextual purposes, we did not assess their reliability.
[End of section]
Appendix II: Creation of the Department of Homeland Security Has
Provided New Opportunities for Combating Alien Smuggling:
Creation of the Department of Homeland Security in March 2003 provided
new opportunities to more effectively combat alien smuggling by, among
other means, bringing to bear financial investigative techniques. In
particular, U.S. Immigration and Customs Enforcement--the largest
investigative component of DHS--integrates the legal authorities and
investigative tools of the legacy Immigration and Naturalization
Service and the Treasury Department's U.S. Customs Service, which has
extensive experience in combating money laundering and other financial
crimes.
Seminal Case Cited as New Model for Fighting Alien Smuggling:
A seminal case illustrating the potential of these integrated legal
authorities and investigative tools to combat alien smuggling began on
May 14, 2003, with the tragic discovery of 17 bodies and more than 50
other undocumented aliens in a trailer abandoned at a truck stop near
Victoria, Texas.[Footnote 23] In this case, the smuggling operation
involved aliens from Mexico and several Central American countries (El
Salvador, Honduras, Nicaragua, and Guatemala) who were to be
transported to Houston, Texas. According to congressional testimony:
"ICE worked closely with other DHS components, local law enforcement,
and intelligence and law enforcement agencies in Mexico and Guatemala.
Our unique combination of investigative tools allowed us to follow the
money, pinpoint the conspirators, and bring them to justice. In one
month's period, ICE's coordinated approach led to the arrest and
prosecution of 14 defendants in the United States and abroad.
"This success was the foundation for a new model for fighting
smuggling, which we've now taken to Arizona. ICE assembled a task force
known as 'Operation ICE Storm' to combat violent crime in the Phoenix
metropolitan area."[Footnote 24]
Operation ICE Storm Launched in Phoenix: A Focus on Targeting the
Monetary Assets of Smuggling Organizations:
In October 2003, ICE launched Operation ICE Storm, described as an
unprecedented multi-agency initiative to combat human smuggling and the
violence it has generated in Arizona. ICE's November 2003 press release
says:
"ICE — brings to bear a broad array of authorities and resources that
make it uniquely qualified to lead the fight against human smuggling.
ICE agents will combine immigration, smuggling, and financial
investigative powers to attack the criminal rings from a variety of
levels. ICE's financial investigations expertise, for example, will
allow the task force to follow the money trail in ways not previously
possible. — A critical facet of ICE Storm involves targeting the
monetary assets of smuggling organizations. Authorities say 'following
the money trail' and crippling the organizations' financial
infrastructure is crucial to disabling their operations."[Footnote 25]
A key aspect of the initiative was formation of a task force consisting
of local, state, and federal agencies (see table 5)--including ICE's
deployment of 50 additional special agents to the Phoenix area, which
effectively doubled the size of ICE's field office there.
Table 5: Federal, State, and Local Composition of Operation ICE Storm
(Arizona):
Governmental levels: Federal;
Participating agencies:
* U.S. Attorney's Office;
* ICE;
* U.S. Customs and Border Protection;
* Bureau of Alcohol, Tobacco, Firearms and Explosives.
Governmental levels: State;
Participating agencies:
* Arizona Attorney General's Office;
* Arizona Department of Public Safety.
Governmental levels: Local;
Participating agencies:
* Maricopa County Attorney's Office;
* Phoenix Police Department;
* Mesa Police Department;
* Tempe Police Department;
* Scottsdale Police Department;
* Maricopa County Sheriff's Office;
* Pinal County Sheriff's Office.
Source: ICE.
[End of table]
In September 2004, about 1 year after Operation ICE Storm was launched,
we visited Phoenix to discuss the progress and results of the
initiative. According to ICE officials, results as of September 20,
2004, included the following:
* Some $5.5 million in U.S. currency (funds potentially earmarked for
smuggling organizations) had been seized.
* Some 275 persons had been arrested for alien smuggling or violence-
related offenses. Of these, 36 had been charged with hostage taking,
which is punishable by a term of imprisonment up to life.
* Some 5,013 smuggled aliens had been arrested. Of these, about 700 had
been held against their will by the smugglers, who were attempting to
extort additional payments.
Of the currency seized, the large majority ($5.3 million) resulted from
efforts conducted by state and local agency participants--e.g., the
Arizona Attorney General's Office, the Arizona Department of Public
Safety, and the Phoenix Police Department--in the multi-jurisdictional
task force. ICE officials noted that this success is due partly to the
fact that Arizona's laws and judicial processes are more conducive
(compared with federal laws and processes) to using "sweeping or
damming warrants" for seizing alien-smuggling-related funds being
transmitted through money remittance outlets. In this regard, the ICE
officials commented that the ability to draw upon and leverage the
authorities and resources of all participants are important advantages
of the multi-agency law enforcement task force led by ICE.
As of September 20, 2004, none of the seizures under Operation ICE
Storm involved real property, such as stash houses used by
smugglers.[Footnote 26] However, the Arizona Attorney General's Office
expects that a new state law enacted in June 2004 will facilitate such
seizures in the future. Sometimes referred to in the vernacular as
"coyote RICO" legislation, the new law allows a house to be seized if
there is evidence that it was used to facilitate the smuggling of at
least 15 immigrants a month.[Footnote 27]
Further, at the time of our visit to Phoenix, in September 2004, ICE
officials told us that the most significant alien-smuggling cases under
Operation ICE Storm were still being developed. The officials
anticipated that several major smuggling organizations would be the
subjects of arrests and indictments in the coming months. In October
2004, for example, ICE and the Arizona Attorney General's Office
announced that a multi-agency investigation had resulted in state grand
jury indictments of 21 individuals involved in providing criminal
groups with used cars for smuggling illegal immigrants, drugs, or cash.
According to ICE, 11 used car lots located in the Phoenix metropolitan
area were shut down, and 349 cars worth almost $1.4 million were seized
by ICE and the Arizona Attorney General's Office.
Regarding seizures of currency under Operation ICE Storm, as of April
2005, ICE reported that the cumulative total had reached $7.4 million,
which consisted of $6.7 million seized by the state of Arizona and
about $654,000 seized federally.
Arizona Border Control Initiative Launched in March 2004:
Expanding on Operation ICE Storm, in March 2004, DHS announced the
Arizona Border Control Initiative, a program to support the priority
mission of Homeland Security agencies to detect and deter terrorist
activities and all cross-border illicit trafficking.[Footnote 28] Among
other efforts to achieve a safer and more secure southwest border, the
initiative envisioned the deployment of additional resources (e.g.,
Border Patrol agents) and use of unmanned aerial vehicles, as well as
fixed-wing aircraft and helicopters. Further, the initiative called for
continued efforts to disrupt, dismantle, and target the financial
assets of human smugglers. For instance, in congressional testimony, an
ICE official explained that:
"We're building on ICE Storm's success with DHS' Arizona Border Control
initiative, in which the vigorous application of money laundering and
other federal and state statutes is depriving smuggling organizations
of the criminal proceeds, disrupting their operations and decimating
their organizational hierarchies in the United States and
abroad."[Footnote 29]
ICE officials have characterized Operation ICE Storm as the
"investigative component" of the Arizona Border Control Initiative.
Also, ICE officials noted that a majority of the efforts under the
Arizona Border Control Initiative are geared toward interdiction as
opposed to investigation, which means that U.S. Customs and Border
Protection has a larger role than ICE.
Expansion of Strategy Beyond Arizona:
In May 2004, ICE reported that Special Agents-in-Charge of ICE's
offices in Chicago, Denver, El Paso, Los Angeles, San Diego, Tucson,
and Mexico City had met in Phoenix to "review the strides made under
ICE Storm and evaluate how aspects of the strategy might be adapted to
combat smuggling activity beyond Arizona."[Footnote 30] In July 2004,
ICE reported that as a result of the crackdown in Arizona:
* Many criminal smuggling organizations were shifting their activities
to the Los Angeles area, where they hold the undocumented migrants
while arranging for transportation to destinations nationwide.
* And, in response, DHS was placing teams (including ICE investigators
and Border Patrol agents) for operation at Los Angeles International
Airport--a key West Coast transportation hub used increasingly by
smugglers.[Footnote 31]
The placement and operation of enforcement teams at the Los Angeles
International Airport, according to ICE, was an outgrowth of the
Arizona Border Control Initiative. In October 2004, ICE headquarters
officials told us that ICE was developing a comprehensive southwest
border strategy, given the anticipated displacement of smuggling
activity to other areas along the border resulting from Operation ICE
Storm and the Arizona Border Control Initiative. Also, the officials
noted that although there is no one law enforcement strategy totally
effective in all areas of the nation, the methodologies applied in
Arizona with both Operation ICE Storm and the Arizona Border Control
Initiative were being evaluated and tailored for use in other parts of
the country.
[End of section]
Appendix III: Federal Agencies Responsible for Combating Alien
Smuggling:
Although Department of Homeland Security components, particularly U.S.
Immigration and Customs Enforcement and U.S. Customs and Border
Protection, have primary roles in investigating and interdicting alien
smuggling, various other agencies--including components of the
Departments of Justice, the Treasury, and State--also have significant
roles. While not exhaustive, this appendix highlights some of the
antismuggling roles of various components of the Departments of
Homeland Security, Justice, the Treasury, and State (see table 6) and
provides some examples of actual cases. Also, this appendix discusses
two coordination mechanisms used to help ensure that available
resources are effectively leveraged. One coordination mechanism is the
National Security Council's Migrant Smuggling and Trafficking
Interagency Working Group, which is cochaired by State and Justice. The
Interagency Working Group has a targeting subgroup, whose role is to
identify for investigation and prosecution the most dangerous
international alien smuggling networks, especially those that pose a
threat to national security. Another coordination mechanism is the
Human Smuggling and Trafficking Center, an interagency entity for
disseminating intelligence and other information to address the
separate but related issues of alien smuggling, trafficking in persons,
and clandestine terrorist travel. Although its establishment was
announced in December 2000, the center was not operational until July
2004.
Table 6: Federal Departments and Components Responsible for Combating
Alien Smuggling:
Department: Department of Homeland Security;
Components: U.S. Immigration and Customs Enforcement:
* Office of Investigations;
* Office of Intelligence;
U.S. Customs and Border Protection;
U.S. Coast Guard.
Department: Department of Justice;
Components: U.S. Attorneys Offices Criminal Division;
* Domestic Security Section;
* Organized Crime and Racketeering Section;
Federal Bureau of Investigation.
Department: Department of the Treasury;
Components: Internal Revenue Service;
* Criminal Investigation;
* Financial Crimes Enforcement Network.
Department: Department of State;
Components: Bureau of Diplomatic Security;
Bureau for International Narcotics and Law Enforcement Affairs.
Source: GAO, based on discussions with federal officials.
[End of table]
Department of Homeland Security and Its Components:
DHS components that have immigration enforcement responsibilities
include ICE, CBP, and the U.S. Coast Guard.
U.S. Immigration and Customs Enforcement:
ICE is the largest investigative arm of DHS. ICE's Office of
Investigations has field offices throughout the nation that are
supported by various divisions, including the Smuggling/Public Safety
Division, whose Smuggling/Human Trafficking Branch is responsible for
overseeing programs to identify, locate, disrupt, and prosecute
criminal enterprises that (1) bring, transport, harbor, and smuggle
people into the United States in violation of law or (2) engage in
human trafficking. Also, assigned to U.S. embassies throughout the
world, ICE attachés are to work with their counterparts in foreign law
enforcement agencies to help coordinate investigations and
communication, including efforts to follow the money and seize the
profits of smuggling organizations.[Footnote 32]
The types of alien-smuggling cases handled by ICE are illustrated in
appendix V, which summarizes recent cases prosecuted in three federal
judicial districts coterminous with the U.S.-Mexico border. Of the
total 23 alien-smuggling cases summarized, the majority (15) involved
enforcement actions taken by ICE.
Also, in October 2003, ICE launched Operation ICE Storm in Phoenix, an
initiative to combat human smuggling and the violence it has generated
in Arizona (see app. II). The Office of Investigations and ICE's other
major internal components--Office of Intelligence, Air and Marine
Operations,[Footnote 33] Federal Air Marshal Service, Detention and
Removal Operations, and Federal Protective Service--are represented in
the initiative.
In August 2004, to enhance efforts aimed at shutting down narcotics and
human-smuggling routes and networks that operate along the U.S.-Canada
border, ICE opened an air and marine facility at Bellingham,
Washington, and announced that similar facilities in four additional
northern states (New York, Michigan, North Dakota, and Montana) were
planned.
U.S. Customs and Border Protection:
CBP resulted from the merger of most of the legacy U.S. Customs Service
with all the immigration inspectors and the Border Patrol from the
former Immigration and Naturalization Service--a merger designed to
establish "one face at the border."[Footnote 34] The Border Patrol's
mission as a front-line defender is to patrol the border between
official ports of entry to deter, detect, and prevent the entry of
terrorists and terrorist weapons, illegal aliens, and the smuggling of
contraband into the United States.
The types of alien-smuggling cases handled by CBP or the Border Patrol
are illustrated in appendix V, which summarizes recent cases prosecuted
in three federal judicial districts coterminous with the U.S.-Mexico
border. Of the total 23 alien smuggling cases summarized, almost one-
half (10) involved enforcement actions taken by U.S. Customs and Border
Protection or the Border Patrol.
U.S. Coast Guard:
The Coast Guard is tasked with enforcing U.S. immigration law at sea.
The Coast Guard implements this responsibility principally by
interdicting illegal migrants at sea before they reach the shores of
the United States. Through its interdiction and deterrence efforts, the
Coast Guard's goal is to eliminate most of the potential flow of
undocumented migrants entering the country by maritime routes.
After the Coast Guard makes interdictions at sea, disposition of the
migrants may be determined under the Presidential Directive 27 process,
which involves interagency deliberations that include the National
Security Council, the Department of State, the Department of Justice,
and other relevant federal entities.[Footnote 35] Some cases result in
criminal prosecutions in the United States, while others may result in
foreign prosecutions.
Generally, however, most migrants interdicted by the Coast Guard are
not brought into the United States; rather, the migrants are
repatriated to the departure countries.
Department of Justice and Its Components:
Department of Justice components that have roles in combating the
smuggling of aliens into the United States include U.S. Attorneys, the
Criminal Division's Domestic Security Section and the Organized Crime
and Racketeering Section, and the Federal Bureau of Investigation
(FBI).
U.S. Attorneys:
U.S. Attorneys serve as the nation's principal litigators under the
direction of the Attorney General. There are 93 U.S. Attorneys
stationed throughout the United States, Puerto Rico, the Virgin
Islands, Guam, and the Northern Mariana Islands. U.S. Attorneys are
appointed by, and serve at the discretion of, the President of the
United States, with the advice and consent of the U.S. Senate. Each
U.S. Attorney is the chief federal law enforcement officer of the
United States within his or her particular jurisdiction. Among other
responsibilities, U.S. Attorneys are responsible for prosecuting
criminal cases brought by the federal government. For example, appendix
V summarizes recent alien-smuggling cases prosecuted by U.S. Attorneys
in three federal judicial districts.
Criminal Division's Domestic Security Section:
Among other functions, the Criminal Division's Domestic Security
Section has collaborative responsibility for criminal immigration
offenses. Domestic Security Section officials said:
* The Domestic Security Section routinely collaborates with U.S.
Attorney's Offices in the investigation and prosecution of alien
smugglers. Nearly all such cases involve investigative activity outside
the United States. The Domestic Security Section, by reason of its
close working relationship with ICE and the State Department's Bureau
of Diplomatic Security investigators abroad, is in a position to
provide immediate legal advice and guidance at the early stages of
investigations. As an investigation develops to the point where venue
for prosecution becomes evident, the appropriate U.S. Attorney's Office
is brought into the investigation. At times, U.S. Attorney's Offices
also request the assistance of the Domestic Security Section in cases
where its expertise in international and intelligence matters would
significantly assist prosecution efforts.
* Domestic Security Section attorneys routinely respond to inquiries
from U.S. Attorney's Offices for legal and policy guidance on matters
relating to immigration crimes and violent crime. For example, the
section works closely with the U.S. Attorney's Office for the Southern
District of Florida on matters related to maritime alien smuggling,
especially from Cuba and Haiti.
Moreover, the officials noted that the Domestic Security Section
participates on the committee that reviews ICE's proposed undercover
investigations involving "sensitive circumstances" that relate to alien
smuggling or immigration fraud violations. Since proposals often
involve investigative activity in multiple districts, the Domestic
Security Section tries to ensure that the appropriate U.S. Attorneys
Offices are fully informed of and support the proposed undercover
operational plans and have agreed to prosecute meritorious cases that
are developed.
Criminal Division's Organized Crime and Racketeering Section:
According to Justice, the Organized Crime and Racketeering Section has
a role in combating alien smuggling because (1) alien smuggling has
become a sophisticated organized criminal activity and (2) the alien-
smuggling statute and certain immigration fraud offenses are predicate
offenses under the Racketeer Influenced and Corrupt Organizations Act.
Justice noted, for instance, that Organized Crime Strike Force Units in
several U.S. Attorney's Offices, under the supervision of the Organized
Crime and Racketeering Section, prosecute alien-smuggling cases when
the offenses involve the activities of organized crime groups.
Federal Bureau of Investigation:
While recognizing that DHS is the primary investigating agency with
respect to alien smuggling, the FBI may play a role in specific
investigations, particularly those with a nexus to terrorism. Also, the
FBI may also get involved when alien smuggling becomes the predicate
crime on an investigation under the Racketeer Influenced and Corrupt
Organizations Act, or when federal officers, such as Border Patrol
agents, are assaulted by smugglers. Moreover, the FBI participates in
various international groups or projects that include a focus on
addressing alien smuggling. Further, FBI legal attaches in other
countries participate in activities related to combating alien
smuggling.
Investigations with a Nexus to Terrorism or Organized Criminal
Enterprises:
At times, alien-smuggling activity may be a component of a terrorist
organization or other criminal enterprise. Regarding terrorist
organizations, the FBI's goal is to identify the global infrastructure
of terrorists' travel-facilitating networks that focus on alien
smuggling, as well as fraudulent document vendors, corrupt foreign
government officials, and suspect travel agencies. If a nexus to
terrorism is established for an identified target, the FBI is to assume
the lead investigative role pursuant to a memorandum of agreement,
which was signed in May 2003 by the Attorney General and the Secretary
of Homeland Security and contained a number of provisions designed to
resolve jurisdictional issues and enhance interagency coordination
regarding terrorist-financing investigations.[Footnote 36] The FBI's
lead role in these investigations is implemented through Joint
Terrorism Task Forces, which can have participants from federal, state,
and local law enforcement agencies.[Footnote 37] In July 2004, the FBI
provided us the following information:
* Each JTTF member, including assigned DHS agents, has access to
investigative and other pertinent information. For instance, the FBI is
to share intelligence gathered related to alien smuggling and assist in
assessing trends of this activity.
* For the period following September 11, 2001, to date, records
indicate that 5 Joint Terrorism Task Forces reported a total of 11
accomplishments related to immigration violations. That is, four
persons were arrested and seven were summoned to appear, which
initiated their respective deportation process.
Additionally, in its July 2004 response to our inquiry, the FBI noted
that two investigations were recently opened with a primary focus on
the use of false visas and fraudulent entry documents by terrorist
group affiliates.
Participation in International Groups or Projects:
In its June 2004 response to our inquiries, the FBI cited the following
as examples of its participation in international groups or projects
related to alien smuggling:
* Italian American Working Group. Historically, the Italian American
Working Group has been a "cop-to-cop" forum for U.S. and Italian
authorities (executives, supervisory special agents, investigators,
analysts, etc.) to discuss current law enforcement issues of mutual
interest, such as drug smuggling, organized crime, international
terrorism, computer crime, money laundering, and illegal immigration.
The group meets every other year, alternating between the United States
and Italy.
* Canada-U.S. Cross-Border Crime Forum. Held annually since its
establishment in 1997, the Canada-U.S. Cross-Border Crime Forum allows
Canadian and U.S. authorities to develop coordinated policies for
addressing cross-border crimes. According to Justice, the forum works
through subgroups that deal with various issues, including the
targeting of alien-smuggling organizations. Justice noted that
subgroups work on specific law enforcement issues and objectives
throughout the year and report on their progress and make
recommendations at the annual meeting of the forum.
* Project Bridge. Initiated in 1999 and led by Interpol, Project Bridge
seeks to collect information on organized-crime groups and criminal
enterprises involved with alien-smuggling activity. The project
provides strategic intelligence analysis to identify human-smuggling
trends and routes. Also, the project provides a forum for the
international law enforcement community to identify issues, discuss
cases, and develop collaborative investigative and legislative efforts.
Besides the FBI, other U.S. participants are the Department of Justice,
ICE, and U.S. Customs and Border Protection. Also, in addition to the
United States, participating countries include Australia, Canada, Great
Britain, member states of the European Union, and countries in central
Europe and Asia.
FBI Attachés in Other Countries:
According to the FBI, most (if not all) of the agency's legal attachés
overseas are involved in activities related to combating alien
smuggling. Routinely, for instance, legal attachés liaise with law
enforcement agencies within the respective countries to target and
address alien-smuggling problems. Some examples cited by the FBI in its
June 2004 response to our inquiry included the following:
* Legat Athens organized a visitation of a Macedonian delegation of
judges, prosecutors, and investigators. There have been attempts by
Macedonians to illegally enter the United States through the use of
false documents--that is, documents that have been found to be
counterfeit or legitimate documents with the pictures altered. The
Macedonians are also in the process of implementing more aggressive
laws to combat this issue.
* Legat Bangkok is involved in multiple joint investigations targeting
alien-smuggling organizations based in Bangkok and addressing alien-
smuggling activities transiting through Thailand.
* Legat Rome has a priority interest in alien smuggling from the Balkan
countries, particularly Albania. For the sole purpose of prostitution,
women from Ukraine, Moldova, Belarus, and other Eastern European
countries are trafficked through the Balkans for destinations
throughout Western Europe, Great Britain, and the United States.
Also, the FBI's June 2004 response to our inquiry indicated that FBI
officials had recently met with host government officials in Albania
and Greece to address various crime problems, including alien smuggling
and trafficking of persons. As a result, the FBI noted that it will
seek to establish a task force in Albania as part of an "upstream"
effort to address crimes that affect the United States before problems
become insurmountable.
Department of the Treasury and Its Components:
Department of the Treasury components that have roles in combating the
smuggling of aliens into the United States include Internal Revenue
Service-Criminal Investigation and the Financial Crimes Enforcement
Network (FinCEN).
Internal Revenue Service-Criminal Investigation:
Criminal Investigation (CI) is the law enforcement arm of the Internal
Revenue Service (IRS). At times, IRS-CI has conducted alien-smuggling
investigations jointly with ICE, particularly in areas of high-volume
illegal immigration, such as Texas, Arizona, and New York. In June
2004, in response to our inquiry, IRS-CI provided us the following
examples of alien-smuggling investigations conducted jointly with ICE
(or legacy INS):
* Valente Sillero, et al. (Austin, Tex.) From 1998 through May 2002,
Sillero and his associates in Austin were involved in smuggling more
than 1,000 aliens from Mexico into the United States, charging from
$800 to $2,200 a head. Sillero's organization smuggled not only
Hispanic aliens but also Middle Eastern aliens, although for a higher
fee. IRS-CI estimates that Sillero's organization grossed $2 million in
a 2-year period. Most of the smuggling fees were paid in cash, although
a portion was paid by wire transmittals made by the aliens' relatives
in the United States. In 2002, Sillero was sentenced to 120 months of
imprisonment. Seized assets included cash ($10,000), a 2002 Solara
($24,000), a Harley Davidson motorcycle ($10,000), and two tow trucks
($8,000 and $5,000).
* Robert and Sheery Lu Porges (New York, New York). From 1993 through
September 2000, Robert Porges (a prominent Manhattan immigration
lawyer) and his wife, Sheery Lu Porges, aided Chinese smugglers by
using their law firm to fraudulently create asylum requests. In that
period of time, more than 1,000 Chinese aliens were smuggled into the
country, with the Porgeses charging $40,000 to $50,000 per alien.
Further, the Porgeses filed false income tax returns and paid their
employees in cash, avoiding all withholdings. On August 9, 2002, Robert
and Sheery Lu Porges were each sentenced to 97 months of imprisonment
and were also ordered to forfeit to the government $6 million through
the sale of assets.
* Richard "Trigger" Jones (Abilene, Tex,). Jones was a Deputy U.S.
Marshal who used his position, from 1996 through 2002, to obtain
Immigration and Naturalization "parole" documents for several aliens
whom he had encouraged or induced to remain in the United States on the
false premises that they would be "law enforcement confidential
informants." Jones and others made the aliens provide manual labor at
various places in and near Abilene. Jones transported the aliens for
this purpose, and he also filed false tax returns for 1997 through
2002. In 2004, Jones was sentenced to 24 months of imprisonment and
fined $100,000.
According to IRS-CI case agents, the smuggling fees paid by aliens
often are in currency and, therefore, are very difficult to track.
Agents noted, for instance, that currency proceeds from smuggling on
the southwest border are simply "bulk carried" back to Mexico where the
smugglers (called coyotes) have trusted relationships.
Financial Crimes Enforcement Network:
FinCEN, which was established in 1990 to help combat money laundering
and other financial crimes, does not initiate or carry out any
investigations on its own. Rather, by serving as a central source for
financial intelligence information and analysis, FinCEN supports the
investigative and prosecutive efforts of numerous law enforcement
agencies. In doing so, FinCEN has access to a variety of commercially
maintained databases, as well as the investigative-case databases of
various federal law enforcement agencies.[Footnote 38] Also, FinCEN
administers the largest financial transaction reporting system in the
world, which is based on record-keeping and reporting requirements
mandated or authorized under the Bank Secrecy Act, as amended.
Enacted in 1970, the Bank Secrecy Act--Public Law 91-508, 84 Stat. 1114
(1970)--provides the U.S. government's framework for preventing,
detecting, and prosecuting money laundering. Despite its name, the Bank
Secrecy Act, among other things, is a record-keeping and reporting law.
As originally enacted, the legislation required, for example, the
maintenance of records by financial institutions and the reporting of
certain domestic currency transactions and cross-border transportation
of currency. A purpose of the Bank Secrecy Act is to prevent financial
institutions from being used as intermediaries for the transfer or
deposit of money derived from criminal activity and to provide a paper
trail for law enforcement agencies in their investigations of possible
money laundering. Over the years, the Bank Secrecy Act has evolved into
an important tool to help deter money laundering, drug trafficking,
terrorist financing, and other financial crimes. For instance, passage
of the USA PATRIOT Act in 2001 expanded provisions to prevent, detect,
and prosecute terrorist financing and extended anti-money laundering
requirements to financial service providers previously not
covered.[Footnote 39]
For the period October 2000 through August 2004, FinCEN reported that
it provided analytical support for a total of 201 alien-smuggling
cases. As table 7 indicates, the large majority of these cases involved
support for current or legacy DHS components.
Table 7: Analytical Support Provided by FinCEN for Alien-Smuggling
Cases (Oct. 2000 through Aug. 2004):
Agency receiving FinCEN assistance: Department of Homeland Security[A];
Number of cases: 184;
Number of subjects: 1,147;
Number of FinCEN hours: 2,616.
Agency receiving FinCEN assistance: Department of Justice--Federal
Bureau of Investigation;
Number of cases: 7;
Number of subjects: 20;
Number of FinCEN hours: 223.
Agency receiving FinCEN assistance: Department of Labor--Inspector
General;
Number of cases: 3;
Number of subjects: 28;
Number of FinCEN hours: No data.
Agency receiving FinCEN assistance: Department of State--Bureau of
Diplomatic Security;
Number of cases: 3;
Number of subjects: 5;
Number of FinCEN hours: 79.
Agency receiving FinCEN assistance: State of Maryland High Intensity
Drug Trafficking Area Task Force;
Number of cases: 1;
Number of subjects: 17;
Number of FinCEN hours: No data.
Agency receiving FinCEN assistance: Department of the Treasury--IRS-CI;
Number of cases: 1;
Number of subjects: 9;
Number of FinCEN hours: No data.
Agency receiving FinCEN assistance: Social Security Administration--
Inspector General;
Number of cases: 1;
Number of subjects: 2;
Number of FinCEN hours: 7.
Agency receiving FinCEN assistance: Air Force Office of Special
Investigations;
Number of cases: 1;
Number of subjects: 1;
Number of FinCEN hours: 2.
Agency receiving FinCEN assistance: Total;
Number of cases: 201;
Number of subjects: 1,229;
Number of FinCEN hours: 2,927.
[End of table]
Source: FinCEN data.
[A] The Department of Homeland Security figures include cases of the
U.S. Immigration and Customs Enforcement, U.S. Customs and Border
Protection, and the legacy Immigration and Naturalization Service.
According to FinCEN, the value of its contributions and the
significance of cases may not be readily apparent because many cases
involve long lag times between investigation and successful
prosecution. Generally, however, the way in which FinCEN provided value
to the majority of these investigations involved identifying and
tracking subjects, accounts, and businesses through analysis of Bank
Secrecy Act data and the available commercial and law enforcement
databases. Also, FinCEN noted that it has helped investigators
understand more complex money-laundering methodologies, such as
informal transfer systems, that may be associated with alien smuggling.
Department of State and Its Components:
Department of State components that have roles in combating the
smuggling of aliens into the United States include the Bureau of
Diplomatic Security and the Bureau for International Narcotics and Law
Enforcement Affairs.
Bureau of Diplomatic Security:
The Bureau of Diplomatic Security, the law enforcement arm of the
Department of State, has agents posted in over 160 countries worldwide.
Diplomatic Security has statutory responsibility for protecting the
integrity of U.S. passports and visas--widely considered to be the most
valuable identity and travel documents in the world. Investigations of
passport and visa fraud often show direct links to alien smuggling. A
State Department fact sheet (dated May 12, 2004) stated:
* Nearly 7 million U.S. passports are issued every year. Last year,
Diplomatic Security investigated 3,200 new cases of passport fraud and
made 642 arrests. Currently there are more than 400 active arrest
warrants for passport fraud.
* Also, visa fraud is coming under closer scrutiny after September 11.
Such fraud is most commonly committed not by counterfeiting but through
the sale, or facilitating the issuance process for, unqualified visa
applicants.
* Last year, Diplomatic Security arrested 90 individuals on visa fraud
charges. Of these, 16 arrests were the result of investigations of
large-scale visa malfeasance operations at 4 locations--the U.S.
embassies in Colombo (Sri Lanka) and Prague (Czech Republic) and the
U.S. consulates in Nuevo Laredo and Ciudad Juarez (Mexico).
The Colombo case involved the payment of hundreds of thousands of
dollars by people in Sacramento, California, and elsewhere to two U.S.
citizen employees of the American embassy in exchange for the issuance
of visas to various foreign nationals, primarily from Vietnam and
India. The 2-year investigative case--which was initially indicted on
May 1, 2003, and resulted in guilty pleas on April 30, 2004--reflected
multi-agency cooperation that involved Diplomatic Security and the
State Department's Bureau of Consular Affairs; the governments of Sri
Lanka, Vietnam, and Fiji; the U.S. Attorney's Office for the Northern
District of California; the Sacramento Joint Terrorism Task Force; FBI;
ICE; and state and local law enforcement in California, Oregon, and
Virginia.
Announcing the guilty pleas, the Department of Justice's press release
noted that the two employees--a State Department foreign service
officer and her husband, who had been employed in the consular section
of the American embassy in Sri Lanka--each faced a minimum of at least
5 years in prison, a 3-year term of supervised release, and a
substantial fine.[Footnote 40] Also, Justice reported that the couple
had agreed to forfeit two homes (one in Oregon and another in
Colorado); a sum of $361,766, including funds seized from bank accounts
in California, Oregon, Washington, and Virginia; and nearly $90,000 in
cash recovered from the Oregon home and from the pillows of a love seat
in Sri Lanka.
In response to our inquiry regarding efforts to follow the money trail
in this case, bureau officials explained that:
* Diplomatic Security investigated the financial gains associated with
this conspiracy by using established relationships with both domestic
and foreign law enforcement agencies. Through the use of grand jury
subpoenas, Diplomatic Security acquired evidence and leads into banking
and investment firms located in the United States and abroad.
Additional ill-gotten gains were discovered through intelligence
analysis and law enforcement techniques, such as interviews,
surveillance, and trash recovery.
* Also, Diplomatic Security performed financial analyses of all targets
in the case, including several "visa brokers." Through the tracking of
assets and proceeds, targets were found to be involved in money
laundering, hiding profits, and using proceeds to invest and make
mortgage payments. Further, by working with Justice's Office of
International Affairs, requests were sent to both Sri Lanka and Fiji
for information from banks, and both countries provided helpful
responses.
In sum, according to the Bureau of Diplomatic Security, the Colombo
case exemplifies how document fraud investigations help dismantle
illegal smuggling rings.
Bureau for International Narcotics and Law Enforcement Affairs:
While the Bureau for International Narcotics and Law Enforcement
Affairs does not have arrest or other law enforcement authority, its
role is to help develop policies and programs (e.g., technical
assistance and training) to combat international narcotics trafficking
and other crimes, including alien smuggling. For instance, the State
Department's fiscal year 2005 budget justification reported that the
bureau, among other activities (1) had provided law enforcement
training on combating alien smuggling to more than 300 foreign
officials in the past 3 years and (2) will work with international
partners to interdict and halt alien smuggling as far from U.S. borders
as possible. The budget justification further noted that the bureau
anticipated providing support to foreign governments that have chosen
to ratify and implement the UN Convention against Transnational
Organized Crime and its protocol on migrant smuggling.
In addition to providing foreign governments with training and other
material assistance specifically targeted to counter alien smuggling
and trafficking in persons, the Bureau for International Narcotics and
Law Enforcement Affairs works with various U.S. federal law enforcement
agencies to strengthen the institutional capacity of selected countries
and international organizations to fight crime. State Department
officials noted that strengthening the underlying rule of law and
justice sector institutions--such as legal codes, court systems,
prosecutorial capabilities, investigative capacity, and interagency
cooperation--enhances the ability to combat alien smuggling and
trafficking in persons, even when assistance efforts are not targeted
exclusively against these crimes.
Migrant Smuggling and Trafficking Interagency Working Group: An
Overarching Coordination Mechanism:
In combating alien smuggling, an overarching coordination mechanism to
help avoid duplication of efforts and ensure that available resources
are effectively leveraged is the National Security Council's Migrant
Smuggling and Trafficking Interagency Working Group, which is cochaired
by State and Justice and includes participants from DHS and the
intelligence community. The Interagency Working Group has a targeting
subgroup, whose role is to identify for investigation the most
dangerous international alien-smuggling networks, especially those that
pose a threat to national security. Generally, top priority is to be
given to targeting smugglers who are suspected of having links to
terrorism, whether or not the smugglers are aware of those links. Such
links may include special interest aliens, that is, aliens from
countries hostile to the United States or where global terrorist groups
are known to have operated or recruited. Also, the subgroup may
recommend actions other than investigations. For example, the subgroup
may recommend intelligence gathering on an identified target or
recommend that the Department of State use diplomatic means to convince
a foreign government to take its own action against a target.
As mentioned previously, if a nexus to terrorism is established for an
identified target regarding terrorist financing investigations, the FBI
is to assume the lead investigative role pursuant to a memorandum of
agreement, which was signed in May 2003 by the Attorney General and the
Secretary of Homeland Security and contained a number of provisions
designed to resolve jurisdictional issues and enhance interagency
coordination.[Footnote 41] The FBI's lead role in these investigations
is implemented through Joint Terrorism Task Forces, which can have
participants from federal, state, and local law enforcement agencies.
Since 2002, according to Justice and the FBI, the efforts of the
Interagency Working Group, its targeting subgroup, and investigative
agencies have resulted in the apprehension and prosecution of leaders
(more than 15) of major smuggling organizations. ICE was the lead
investigative entity in the majority of the targeted cases. In its May
2005 comments on a draft of this report, DHS noted that several of the
cases had a nexus to terrorism and that ICE had the lead investigative
role on all but one of these cases. DHS explained that the May 2003
memorandum of agreement pertained to financial investigations and not
to alien-smuggling investigations. Also, in its May 2005 comments on a
draft of this report, the State Department noted that ICE has been the
lead investigative agency in many terrorism-related investigations,
notwithstanding the May 2003 memorandum of agreement. State explained
that these investigations had considerable overseas operations, and ICE
had the legacy resources, experience, and capabilities.
Human Smuggling and Trafficking Center: Operational Potential Not Yet
Fully Achieved:
The Human Smuggling and Trafficking Center is an interagency
coordination entity designed to address the separate but related issues
of alien smuggling, trafficking in persons, and clandestine terrorist
travel. The center has had an extended startup history. State and
Justice announced the center's establishment (with a slightly different
predecessor name) as early as December 2000.[Footnote 42] However,
because of subsequent events--the attacks of September 11, 2001, which
resulted in a redirection of personnel and resources and a
reorganization of the U.S. government--the center did not become
operational until July 2004.
The center's current charter was signed on behalf of the Secretary of
State on May 19, 2004, and on behalf of the Attorney General and the
Secretary of Homeland Security on July 9, 2004. The charter states:
* Federal agencies have acknowledged that intensified efforts, together
with enhanced interagency coordination, are needed to support more
effective enforcement, diplomatic, and other actions to counter
smugglers and traffickers.
* The center's efforts will be fundamentally supportive rather than
directive in nature, consisting primarily of facilitating the
dissemination of intelligence, preparing strategic assessments,
identifying issues that would benefit from enhanced interagency
coordination or attention, and coordinating or otherwise supporting
agency or interagency efforts in appropriate cases.
* As such, the center will serve as an all-source fusion entity and
clearinghouse, with a view to ensuring that the entire community of
interest receives all useful information relating to migrant smuggling,
trafficking in persons, and clandestine terrorist travel.
In December 2004, the center was formally established by Section 7202
of the Intelligence Reform and Terrorism Prevention Act of
2004.[Footnote 43] In addition to providing a statutory underpinning
for the charter, the 2004 act added several additional mandates to the
center. Specifically, the act requires the center to:
* serve as the focal point for interagency efforts to address terrorist
mobility;
* serve as a clearinghouse with respect to all relevant information
from all federal government agencies in support of the U.S. government
strategy to prevent terrorist travel, human smuggling, and trafficking
in persons;
* ensure cooperation among all relevant policy, law enforcement,
diplomatic, and intelligence agencies of the federal government to
improve effectiveness, and to convert all information available to the
federal government relating to clandestine terrorist travel, human
smuggling, and trafficking in persons into tactical, operational, and
strategic intelligence that can be used to combat such illegal
activities; and:
* prepare and submit to Congress an annual strategic assessment
regarding vulnerabilities in the United States and foreign travel
system that may be exploited by international terrorists, human
smugglers and traffickers, and their facilitators.
In addition, as part of its mission to combat terrorist travel, the
center is to work to support the efforts of the National
Counterterrorism Center.
According to State Department officials, the Human Smuggling and
Trafficking Center is to have a strong foreign focus, and information
synthesized by the center will support diplomatic efforts and U.S. law
enforcement cooperation with foreign agencies, as well as inform
State's Bureau of International Narcotics and Law Enforcement Affairs
in providing assistance programs to strengthen certain foreign
agencies. For example, as of late July 2004, State reported that the
center's accomplishments included (1) preparing a strategic assessment
on alien smuggling from a certain South American country and (2)
proposing an action plan that the United States presented to the
G8[Footnote 44] to address fraudulent document production and alien
smuggling in a certain Asian country.
Also, according to State, the center serves as the venue for
interagency meetings on terrorist mobility, alien smuggling, and
trafficking issues, including hosting the targeting subgroup of the
Interagency Working Group. State recognized that partly because the
center had only recently become operational and was still being
staffed,[Footnote 45] there is a need to more fully establish
procedures for processing and sharing intelligence, law enforcement,
and other information. For instance, State provided explanatory details
substantially as follows:
* A significant amount of the information handled by the center will be
highly classified or originator controlled and may not be able to be
used in its original form by law enforcement. Thus, the center will
explore methods for redacting or summarizing information to be shared
in appropriate cases.
* Also, the center is developing relationships with international
organizations, such as Interpol, as well as with foreign law
enforcement, intelligence, and immigration authorities to exchange
information more efficiently. If negotiated agreements are necessary,
estimating time frames is difficult.
As mentioned previously, as of March 2005, the center's staffing level
was only about one-half of the total full-time-equivalent positions
anticipated to be filled by the end of calendar year 2005. In this
regard, it should be noted that section 7202(d) of the Intelligence
Reform and Terrorism Prevention Act requires the President to transmit
to Congress a report that, among other things, describes the staffing
and resource needs of the center.[Footnote 46] The required report is
important because the center's staffing and resource needs may affect
its ability to perform mandated functions, such as preparing and
submitting to Congress an annual strategic assessment regarding
vulnerabilities in the United States and foreign travel system that may
be exploited.
[End of section]
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States:
Federal efforts to work with governments of source and transit
countries to prevent illegal entries into the United States include
participation in both bilateral and multilateral agreements and
activities. While not exhaustive, this appendix provides an overview of
various agreements and activities, including efforts to identify and
seize smugglers' funds or assets located abroad.
Federal Bilateral Efforts to Work with Foreign Governments:
Federal bilateral efforts to work with foreign governments include
focusing on source and transit countries, including border nations
(Mexico and Canada), and using the skills and contacts of federal
agents posted abroad to address issues upstream.
Bilateral Agreements Generally Cover a Broad Range of Criminal
Activity:
The United States has negotiated and signed more than 50 bilateral
mutual legal assistance treaties (MLATs) with law enforcement partners
around the world, according to the Department of Justice. Such
treaties--which are a mechanism for obtaining evidence in a form
admissible in a prosecution--provide for a broad range of cooperation
in criminal matters, such as locating or identifying persons, taking
testimonies and statements, obtaining bank and business records, and
assisting in proceedings related to immobilization and forfeiture of
assets. Justice's Office of International Affairs coordinates the
gathering of international evidence and, in concert with the State
Department, engages in the negotiation of new MLATs.
According to the State Department, the U.S. government has few
bilateral agreements that solely address alien smuggling; rather, the
agreements cover a broad range of criminal activity. As examples of
bilateral agreements that have alien-smuggling provisions, State noted
that the cross-border accord with Canada and the accord with Cuba have
alien-smuggling elements, as do agreements with the government of The
Bahamas concerning cooperation in maritime law enforcement (which
entered into force June 29, 2004) and with the government of the
Dominican Republic concerning maritime counterdrug operations. Also,
State noted that some extradition treaties that apply the concept of
mutual criminality allow extradition for the crime of alien smuggling.
U.S.-Mexico Bilateral Efforts:
In March 2002, the U.S. and Mexican governments adopted a plan--the
U.S.-Mexico Border Partnership Agreement--designed to increase border
security while still facilitating the legitimate flow of people and
goods. One outcome of the agreement was establishment of a binational
Alien Smuggling and Trafficking Task Force, with a lead role designated
for ICE's office in Mexico City. According to ICE, the task force has
evolved to a point whereby information sharing is now standard
operating procedure for both ICE and Mexican law enforcement and
intelligence agencies. ICE officials noted, for example, that Mexican
authorities have provided information useful in compiling target lists
of smugglers to be investigated under Operation ICE Storm.
Another outcome of the partnership agreement was initiation of a pilot
program in November 2002, the Guide Identification and Prosecution
Program. The pilot program was initiated by the U.S. Border Patrol's El
Centro Sector (located in the southern judicial district of California)
and Mexico's Attorney General's Office (the Procuraduria General de la
Republica, or PGR). The program's objective is to target alien
smugglers and turn them over to Mexican authorities for prosecution,
particularly if prosecution in the United States is declined. For
instance, when a smuggler is interdicted in the United States and the
U.S. Attorney's Office declines prosecution, Mexican authorities are to
review the case and--if the case is deemed prosecutable in Mexico--the
El Centro Border Patrol Sector is to turn over any applicable evidence
or casework information.
According to El Centro Sector officials, the prosecution program was
needed because the U.S. Attorney's Office in the Southern District of
California was unable to handle all of the potential immigration-
enforcement cases. Equally important, both the U.S. and Mexican
governments were mutually concerned with preserving lives by
identifying and prosecuting unscrupulous "guides or coyotes" who may
lead migrants to death or harm in the harsh border terrain.
For the approximately 2-year period from inception of the pilot Guide
Identification and Prosecution Program in November 2002 to November
2004, the El Centro Border Patrol Sector has reported referring 80
alien-smuggling cases to Mexican authorities. On the basis of these
referrals, Border Patrol officials told us that Mexican federal
authorities have obtained 31 convictions with jail sentences ranging
from 1 to 6 years. According to Border Patrol headquarters officials,
the Guide Identification and Prosecution Program is important and
useful in combating alien smuggling because the program directly
focuses on "foot guides." The officials explained that foot guides who
have knowledge of routes through deserts or other harsh terrain on the
border are far fewer in number than truck drivers and are much more
difficult to replace or recruit. Thus, the officials noted that
prosecuting the foot guides helps to dismantle smuggling organizations.
Regarding the future of the program, in August 2003, the Commissioner
of CBP approved expansion to three additional Border Patrol sectors--
San Diego, Tucson, and Yuma. However, as of January 2005, the program
had not been expanded. According to the Assistant Chief Patrol Agent of
the El Centro Sector, the government of Mexico supports expansion but
faces resource issues. To help facilitate expansion, the Assistant
Chief Patrol Agent suggested that it may be necessary for officials
from CBP's Office of International Affairs to meet with Mexican
government representatives in Mexico City.
Also, to increase bilateral coordination and intelligence sharing, CBP
officials noted that every southwest border sector has a Mexican
Liaison Unit to work full-time with counterparts in Mexico.
U.S.-Canada Bilateral Efforts:
U.S.-Canada bilateral efforts to address cross-border crimes include
the formation of multi-agency Integrated Border Enforcement Teams.
Originally developed in 1996 to target cross-border criminal activity
between British Columbia and Washington state, the teams have since
expanded to cover strategic locations across the entire northern
border. Core participants in these multi-agency teams are ICE, CBP,
U.S. Coast Guard, Royal Canadian Mounted Police, Canada Customs and
Revenue Agency, and Citizenship and Immigration Canada. Additional
participants are municipal and provincial law enforcement agencies.
Besides targeting trafficking in illegal drugs, weapons, vehicles,
liquor, and tobacco, the integrated teams have reported successful
intercepts of criminal networks attempting to smuggle illegal migrants
across the border.
Another bilateral effort is the Canada-U.S. Cross-Border Crime Forum.
The purpose of the forum, held annually since its establishment in
1997, is to allow Canadian and U.S. authorities to develop coordinated
policies for addressing cross-border crimes. According to Justice, the
forum works through subgroups that deal with various issues, including
the targeting of alien-smuggling organizations. Justice noted that
subgroups work on specific law enforcement issues and objectives
throughout the year and report on their progress and make
recommendations to the Canadian Deputy Prime Minister and the U.S.
Attorney General at the annual meeting of the forum.
In December 2001, the Canadian and U.S. governments signed the Smart
Border Declaration and an associated 30-point action plan designed to
enhance the security of the two nations' shared border while
facilitating the legitimate flow of people and goods. The action plan
reflected continuing support for Integrated Border Enforcement Teams
and the Canada-U.S. Cross-Border Crime Forum.
Federal Assistance to Ecuador and Other Countries:
In recent years, recognizing that Ecuador had become a major source and
transit country for aliens entering the United States, the State
Department's Bureau for International Narcotics and Law Enforcement
Affairs has provided technical assistance to Ecuador for strengthening
its investigative and prosecutorial capacity to combat alien smuggling.
For example, the bureau's budget justification for fiscal year 2005
reported that the first-ever, U.S.-funded alien smuggling vetted unit
was established in Quito, Ecuador; computers were purchased for use at
the international airport in Quito; and funding was also provided to
detail a team of attorneys to Ecuador to provide guidance on
strengthening alien-smuggling legislation. Further, the 2005 budget
justification noted plans for creating one or more additional alien-
smuggling vetted units in the Dominican Republic, Guatemala, or Mexico
and that the unit(s) would be trained in the areas of investigative
techniques, consensual monitoring, anticorruption, and antismuggling.
As mentioned previously, in addition to providing foreign governments
with training and other material assistance specifically targeted to
counter alien smuggling and trafficking in persons, the Bureau for
International Narcotics and Law Enforcement Affairs works with various
U.S. federal law enforcement agencies to strengthen the institutional
capacity of selected countries and international organizations to fight
crime. In this regard, State Department officials noted that
strengthening the underlying rule of law and justice sector
institutions--such as legal codes, court systems, prosecutorial
capabilities, investigative capacity, and interagency cooperation--
enhances the ability to combat alien smuggling and trafficking in
persons, even when assistance efforts are not targeted exclusively
against these crimes.
Also, U.S. Customs and Border Protection officials said that CBP has
been proactive in pushing out the border. As an example, the officials
noted that BORTAC---a specially trained tactical unit of the Border
Patrol--has helped Honduras plan and put into operation an organization
with border police-type responsibilities.
Federal Law Enforcement Agents at U.S. Embassies and Consulates:
Another upstream effort by the U.S. government to combat alien
smuggling and other transnational crime is the posting of federal law
enforcement agents abroad to work with their counterparts in foreign
law enforcement agencies:
"In order to develop prosecutable criminal cases against principals in
international alien-smuggling organizations, the United States must
have an effective investigative capability in various parts of the
world. — Exact capabilities will vary by country, but United States law
enforcement agents and prosecutors stationed at United States embassies
and consulates often have excellent working relationships with their
counterparts. Frequently, United States law enforcement personnel
posted abroad can obtain information or evidence informally. If formal
mutual assistance is needed, for example, if the evidence was not
obtained in an admissible form, the information or evidence gathered
informally may provide the basis for drafting a formal
request."[Footnote 47]
As discussed in appendix III, federal agencies with overseas postings
include not only the State Department's Bureau of Diplomatic Security,
but also the FBI and ICE.
ICE has 50 overseas offices (attachés). According to ICE, to reduce the
flow of aliens into the United States, federal agents posted abroad are
a necessary element in planning operations and exchanging case-related
intelligence between ICE investigative units and foreign law
enforcement. ICE headquarters officials said that human smuggling and
related criminal activities are directly connected to the activities of
organizations operating throughout the Americas (South America, Central
America, and Mexico), as well as South Africa. The officials noted, for
example, that--as a result of increased coordination, training, and
communications led by ICE with the governments of Colombia, Guatemala,
and South Africa--new investigations have been initiated into human-
smuggling organizations. Also, the officials noted that the ICE attaché
in Ecuador has made progress in addressing ICE's mission of extending
the border by dismantling human-smuggling organizations abroad.
Multilateral Protocol on Migrant Smuggling:
Regarding multilateral efforts to address people smuggling, in December
2000, the United States and over 120 other countries signed the UN
Convention against Transnational Organized Crime and more than 75 of
these countries signed a supplementary agreement--the Protocol against
the Smuggling of Migrants by Land, Sea and Air. The main purpose of the
convention and the protocol is to enable the international community to
better combat organized crime by harmonizing nations' criminal laws and
promoting increased cooperation. Before entering into force, the
convention had to be ratified by at least 40 countries. Nations may be
a party to the convention only but not to the protocol only.
The convention and the protocol have entered into force, although the
United States has signed but has yet to ratify the convention.
According to Justice, the entry into force of the convention and the
protocol has increased the effectiveness of immigration enforcement
efforts with regard to several countries. For instance, the fact that
the protocol is now in force in a particular country can be used to
induce that country to assume its responsibilities by accepting the
return of its nationals and prosecuting smugglers under its criminal
laws. Also, Justice noted that, once the United States becomes a party
to the protocol, certain extradition treaties that the United States
has with other state parties will be deemed amended to include alien-
smuggling offenses and travel document fraud as defined in the
protocol. In addition, Justice noted that the United States will be
able to utilize the protocol's mutual legal assistance provisions in
dealing with those state parties that currently do not have a bilateral
treaty with the United States for such assistance.
Federal Efforts to Identify and Seize Smugglers' Funds or Assets
Abroad:
According to some estimates, alien smuggling globally generates
billions of dollars in illicit revenues annually. How much of the total
involves aliens smuggled into the United States is not known, although
the United States is often a primary destination country. Also,
according to ICE officials, much of the U.S.-related smuggling revenues
either may not be paid in this country or, if paid here, may be
transported or transmitted abroad quickly. As such, federal efforts to
combat alien smuggling by following the money trail frequently may
present investigators and prosecutors with opportunities and challenges
related to identifying and seizing funds or assets not located in the
United States. The MLAT process is one tool available to help
investigators and prosecutors meet these opportunities and challenges.
In March 2005, to get a sense of the extent to which federal law
enforcement agencies were using the MLAT process to follow the money
trail abroad in alien smuggling cases, we contacted Justice's Office of
International Affairs. In reference to alien-smuggling cases, we asked
for information regarding the number of requests made to foreign
governments for assistance through provisions of an applicable MLAT or
by a letter rogatory.[Footnote 48] According to the Deputy Director,
the number of outgoing requests for formal law enforcement assistance
in alien-smuggling cases is few in comparison with requests in cases of
drug trafficking, money laundering, fraud, and various other offenses.
For matters considered to be alien-smuggling cases, the Deputy Director
noted that it would be very difficult to quantify the exact number of
requests made to foreign countries. In explanation, the Deputy Director
commented substantially as follows:
* The Office of International Affairs' database was created a number of
years ago to track an extremely large volume of international requests.
The database was not originally designed to include a category of
"alien smuggling." This category designation was added to the database
within only the last few years. Under this specific category, the
database currently shows 10 pending outgoing requests and 3 closed
outgoing requests.
* Further, the database has an "immigration violation" category, which
would include alien smuggling and has existed for some time. Currently,
the database shows over 160 closed cases in this category.
Also, we asked ICE headquarters for information regarding formal
requests made in attempts to follow the money trail on alien-smuggling
investigations that have extended overseas. That is, we asked how many
MLAT requests were made in fiscal years 2003 and 2004, to which
countries, and what have been the results in terms of assets tracked or
seized. The Office of Investigations' Asset Forfeiture Unit responded
that it had no way of determining the number of MLAT requests. ICE
officials noted, however, that none of ICE's reported seizures from
alien-smuggling cases in fiscal year 2004 ($7.3 million) and the first
6 months of fiscal year 2005 ($7.8 million) were made abroad.
We made a similar inquiry for information from the State Department's
Bureau of Diplomatic Security. In response, the bureau noted that it
has been a full member of the Department of Justice's Asset Forfeiture
Program since October 1, 2004, and--after admission to the program--has
taken steps to prepare and encourage agents to consider forfeiture
whenever possible, including seeking the seizure and forfeiture of
assets abroad. Additional comments were substantially as follows:
* Because participation in Justice's Asset Forfeiture Program is
relatively new, the bureau has submitted only one MLAT request seeking
the seizure and forfeiture of illegal assets overseas, and this request
was still pending as of March 2005. However, the bureau currently is
conducting numerous criminal investigations that most likely will
result in the submission of several more MLAT requests to various
foreign countries to seek the seizure and forfeiture of illegal funds
and assets.
* The MLAT process sometimes may be very time consuming and on occasion
has discouraged Assistant U.S. Attorneys from pursuing forfeiture of
illegal assets via an MLAT request. In the absence of an MLAT, the
letter rogatory process may be even more burdensome and time consuming
and the results less certain.
The bureau noted that in addition to utilizing the MLAT process, there
are other procedures for gathering evidence or seizing the proceeds of
a crime. For example, as part of a plea agreement, a defendant may
consent to repatriate overseas assets to the United States without the
involvement of the host country. Finally, the bureau emphasized that
the ability to equitably share with foreign law enforcement agencies a
percentage of the proceeds seized based on their assistance and
participation in investigations is a very useful tool in securing the
seizure and forfeiture of illegal assets overseas.
[End of section]
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts:
This appendix summarizes selected alien-smuggling cases prosecuted in
federal district courts in three districts--the District of Arizona,
the Southern District of California, and the Southern District of
Texas. Each of these federal judicial districts is coterminous with the
U.S.-Mexico, or southwest, border. To identify alien-smuggling cases
federally prosecuted in these districts, we reviewed press releases
issued by the respective U.S. Attorney's Office during January through
June 2004. For this 6-month period, our review found that the three
districts issued press releases that covered a collective total of 23
alien-smuggling cases--District of Arizona (9), Southern District of
California (3), and Southern District of Texas (11). In April and May
2005, the Executive Office for U.S. Attorneys provided us updated
information on the results (e.g., convictions and sentencing
provisions) of these cases.
As summarized below, most of the 23 cases were reactive-type cases,
with no money trail being pursued. However, a few cases (particularly
in Texas) were proactive investigations--including the use of
undercover agents--and had a focus on pursuing financial transactions.
Further, according to ICE officials, certain aspects of the relevant
cases were still open at the time of our review, and investigators were
continuing to follow the money trail. Regarding the reactive-type
cases, ICE and U.S. Attorney's Office officials emphasized that several
of the cases involved fatalities and were prosecuted based on public
safety concerns. Also, officials indicated that law enforcement
agencies can gather and consolidate intelligence from reactive cases as
a basis for developing larger or proactive cases.
District of Arizona:
The nine alien-smuggling cases prosecuted in Arizona reflected a range
of circumstances. For example (see table 8):
* Five of the cases involved truck (or tractor-trailer) drivers who
were transporting as many as 65 undocumented aliens. In one of these
cases, when the driver was fleeing from authorities, a 16-year-old
female fell from the truck bed and died after being run over by the
truck.
* Another two cases involved female U.S. citizens who were attempting
to bring Mexican children into the United States. One of these cases
involved 5 Mexican children, and the other case involved a 1-year-old
Mexican boy.
* Another case reflects victimization and intimidation in the human-
smuggling trade; that is, 23 undocumented aliens who were walking
through the desert near Three Points, Arizona, were robbed and held for
ransom.
Table 8: District of Arizona Alien-Smuggling Cases Reported by U.S.
Attorney's Office Press Releases (January to June 2004):
Press release number, date, and U.S. Attorney case number: Press
release 2004-027 February 6, 2004;
Case number CR-03-2360 TUC;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The evidence showed at trial that, on November 4, 2003, the
defendant was driving a pickup truck near Arivaca, Arizona. A U.S.
Border Patrol agent could see the knees and elbows of numerous
individuals bouncing in the bed of the truck as it traveled through
dips and washes. When the agent tried to perform a traffic stop on the
vehicle, it failed to yield. Additional Border Patrol agents were able
to successfully deflate the vehicle's front tires with controlled tire
deflation devices. However, the vehicle continued to elude agents until
it eventually left the roadway and crashed through a fence into the
open desert. Border Patrol agents riding ATVs continued the pursuit
despite having objects, including a spare tire, thrown at them from the
back of the truck. When the vehicle came to rest, agents immediately
apprehended the driver (the defendant) as he attempted to flee;
Subsequent investigation revealed the presence of 11 undocumented
aliens in the bed of the truck and 14 undocumented aliens in the cab of
the truck, including numerous children and infants. Defendant was also
an illegal alien who had previously been deported from the United
States;
Law enforcement agencies: Tucson and Nogales Sectors of U.S. Border
Patrol;
Results: On February 5, 2004, a federal jury in Tucson found the
defendant guilty of two counts of transportation of illegal aliens for
commercial advantage or private financial gain (8 U.S.C. § 1324) and
one count of illegal reentry following deportation (8 U.S.C. § 1326).
The defendant was sentenced to 43 months in prison, but after being
appealed, the sentence was reduced to 21 months.
Press release number, date, and U.S. Attorney case number: Press
release 2004-032 February 13, 2004;
Case number CR-03-1728;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: At trial, the evidence showed that on August 7, 2003, the
defendant was driving a pickup truck with five illegal aliens,
including three in the open bed of the truck, when stopped by U.S.
Border Patrol agents near Marana, Arizona. The defendant claimed that
he was just helping the people by taking them to a store. He also told
Border Patrol agents there were more people on his property in a mobile
home, where agents subsequently found 18 illegal aliens hiding;
Law enforcement agencies: U.S. Border Patrol;
Results: On February 12, 2004, a federal jury in Tucson found the
defendant guilty of two counts of 8 U.S.C. § 1324(a)(1)(A)(ii) and one
count of 8 U.S.C. § 1324(a)(1)(A)(iii). On October 29, 2004, the
defendant was sentenced to 18 months in prison, to be followed by 2
years of supervised release.
Press release number, date, and U.S. Attorney case number: Press
release 2004-035 February 17, 2004; Press release 2004-056 March 15,
2004;
Case number CR-04-0147-PHX-SRB;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On January 20, 2004, the defendant's tractor-trailer was stopped
at a Border Patrol checkpoint near Yuma, Arizona. A routine canine
sniff alerted agents to search the tractor-trailer. Removing stacked
pallets in the back of the tractor-trailer, agents discovered 65
illegal aliens, including 20 females and 11 juveniles. The defendant
admitted to knowingly transporting the aliens for a fee of $1,600;
Law enforcement agencies: U.S. Customs and Border Protection;
Results: On March 15, 2004, the defendant pled guilty to one count of
transporting illegal aliens for profit. The defendant was sentenced to
24 months in prison, to be followed by 3 years of supervised release.
Press release number, date, and U.S. Attorney case number: Press
release 2004-038 February 18, 2004; Case number CR-04-0153-PHX;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On January 26, 2004, defendant was driving a Freightliner
tractor-trailer when he stopped at a Border Patrol checkpoint on
Highway 95 north of Yuma, Arizona. He told the agents he was hauling
citrus crates, but he could not produce any documentation for the load.
Upon receiving consent to search the trailer, agents removed some of
the stacked crates, discovering 50 illegal aliens (46 from Mexico and 4
from El Salvador) hiding in the trailer. The aliens had entered the
trailer in a citrus grove in Yuma and had been shut inside for about 2
hours;
Law enforcement agencies: U.S. Customs and Border Protection;
Results: Defendant was indicted on February 18, 2004, for transporting
illegal aliens. Records regarding the sentencing and judgment of
conviction are sealed.
Press release number, date, and U.S. Attorney case number: Press
release 2004-041 February 20, 2004; Case number CR-03-1854-TUC-FRZ;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The evidence revealed on August 22, 2003, that two female U.S.
citizens were stopped at the Douglas Port of Entry in Arizona,
attempting to enter the United States with five children, who were
citizens of Mexico. Both defendants claimed the children were theirs
and were also U.S. citizens. The defendants had made prior arrangements
with a man named Juan to pick up the children in Mexico from a stranger
and get them into the United States illegally. Defendants were going to
be paid $50 per child;
Law enforcement agencies: U.S. Immigration and Customs Enforcement;
Results: On February 19, 2004, both defendants pleaded guilty to
conspiracy to bring in illegal aliens in violation of 8 U.S.C. § 1324.
The defendants were sentenced to prison terms of 16 and 15 months,
respectively.
Press release number, date, and U.S. Attorney case number: Press
release 2004-045 February 23, 2004; Case number CR-03-2297-TUC-CKJ;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On October 23, 2003, a female U.S. citizen with three children
was stopped at the Douglas Port of Entry in Arizona. She claimed all
the children were U.S. citizens. However, a 1- year-old boy was a
citizen of Mexico. The woman falsely claimed to be a babysitter for
this child, but the evidence showed that she had driven to Mexico and
picked up this boy, whom she did not know, from a stranger. She planned
to take him to "Luis" in a trailer park in the United States. She
expected to receive $300 once she delivered the child;
Law enforcement agencies: ICE;
Results: On December 12, 2003, the defendant pleaded guilty to
conspiracy to bring in illegal aliens in violation of 8 U.S.C. § 1324.
On February 23, 2003, the defendant was sentenced to 22 months in
prison--18 months for this offense plus 4 months for violating her
probation by engaging in the same act of child smuggling.
Press release number, date, and U.S. Attorney case number: Press
release 2003-069 April 8, 2004; Case number CR-03-2448-TUC;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On November 15, 2003, the defendant attempted to enter the
United States from Mexico at Arizona's Douglas Port of Entry
accompanied by an adult female and a 7-year-old female. The defendant
falsely claimed that the child was a U.S. citizen. The adult presented
an Oregon identification document claiming U.S. citizenship. Upon
further questioning by authorities, the defendant admitted she did not
know the names of either the adult or child. The defendant said she had
been given documents for the two aliens to facilitate entry into the
United States and had coached them on what to say when they entered.
The defendant also said that she and the two Mexican citizens were
planning to take the bus to Tucson where the child's father would pick
her up;
Law enforcement agencies: ICE;
Results: On April 8, 2004, the defendant pled guilty to conspiracy to
transport illegal aliens, violating 8 U.S.C. § 1324, and was sentenced
to 33 months in prison to be followed by 3 years of supervised release.
Press release number, date, and U.S. Attorney case number: Press
release 2004-079 April 27, 2004; Case number CR-03-1709-TUC-RCC (NFF);
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On August 7, 2003, law enforcement agents observed numerous
suspected undocumented aliens loading into the bed of a parked truck
outside of Sells, Arizona The agents pulled in front of the truck and
identified themselves as law enforcement agents. The defendant backed
the truck up and then went forward, fleeing from the scene. In doing
so, a 16-year-old undocumented female in the truck bed fell out of the
truck, and the defendant ran over her, killing her instantly. The
defendant crashed into another truck and was arrested. The defendant
told agents that he was taking the group of undocumented aliens to
Phoenix, where he would be paid a set amount for each illegal alien;
Law enforcement agencies: ICE and Tohono O'Odham Police Department;
Results: On April 23, 2004, the defendant pled guilty to felony
transportation of an illegal alien (resulting in death) and conspiracy
to transport illegal aliens. The defendant was sentenced to 57 months
in prison and ordered to pay restitution of $1,104 (the cost of
transporting the body of the deceased female to Mexico). Also, the
defendant was sentenced in state court for negligent homicide, with the
state sentence (6 years in prison) to run concurrently with the federal
sentence.
Press release number, date, and U.S. Attorney case number: Press
release 2004-094 May 18, 2004; Case number CR-04-4857M;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On March 29, 2004, five Mexican men with numerous firearms
approached a group of 23 undocumented aliens who were walking through
the desert near Three Points, Arizona. The defendants robbed the group
and told the aliens they would be taken to a nearby trailer where
members of the group could contact a family member to pay a ransom. One
member of the group escaped and contacted a Department of Public Safety
officer. This member later led U.S. Border Patrol officers back to the
scene, and the defendants fled but were soon captured. The U.S.
Attorney's Office is working closely with Department of Homeland
Security agencies to prosecute human smugglers identified as part of
the Arizona Border Control initiative, a statewide law enforcement
effort launched by DHS in March 2004 to deter the illicit trafficking
of people and drugs. ICE described this case "as yet another example of
the victimization and intimidation that amount to business as usual in
the human smuggling trade."
Law enforcement agencies: ICE and U.S. Customs and Border Protection;
Results: On May 17, 2004, all five defendants pled guilty to conspiracy
to commit hostage taking, violating 18 U.S.C. § 1203. Three of the five
defendants were each sentenced to 10 years of prison. Also, the other
two defendants were sentenced to prison for 121 months and 120 months,
respectively, to be followed by 3 years of supervised release.
Source: GAO summary of press releases (January through June 2004) by
U.S. Attorney's Office, District of Arizona, and sentencing information
provided by the Executive Office for U.S. Attorneys.
[End of table]
California, Southern District:
During the period January to June 2004, the U.S. Attorney's Office for
the Southern District of California issued press releases for three
alien-smuggling cases (see table 9). One case involved the attempted
smuggling of Chinese aliens, which resulted in the death of a Border
Patrol agent. In the second case, an inspector from the legacy
Immigration and Naturalization Service was charged with conspiracy. The
third case involved a vehicle accident, resulting in the death of four
aliens.
Table 9: Southern District of California Alien-Smuggling Cases Reported
by U.S. Attorney's Office Press Releases (January to June 2004):
Press release date[A]: April 30, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On December 16, 2003, the defendant was caught attempting to
smuggle three undocumented Chinese nationals across the Colorado River
to Arizona on the border area between California and Arizona. During
the course of the rescue and apprehension of the group, a U.S. Border
Patrol agent died of apparent drowning. The defendant was charged in
a12-count indictment, including bringing in and transporting illegal
aliens resulting in death, and bringing in illegal aliens for financial
gain; Law enforcement agencies: FBI and U.S. Border Patrol;
Results: The defendant pled guilty to bringing in illegal aliens
resulting in death in violation of 8 U.S.C. § 1324(a)(1)(a),(V)(ii) and
(a)(1)(B)(iv) and aiding and abetting. The defendant was sentenced on
September 10, 2004, to serve a prison term of 57 months, followed by 5
years of supervised release.
Press release date[A]: May 25, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: Two members of a Mexican family allegedly arranged for the
smuggling of marijuana and aliens through lanes at the San Ysidro Port
of Entry manned by an INS inspector (defendant number 1). The inspector
resigned in August 2001, following the seizure of a large amount of
marijuana at an auto repair shop he frequented. The investigation,
which began with the sale of false immigration documents to an INS
undercover agent, was subsequently assigned to the Border Corruption
Task Force, which included agents from the FBI, ICE, and the DHS
Inspector General's Office. Ten defendants are involved in this case:
the former INS inspector (defendant number 1) and three other U.S.
citizens, three Mexican citizens, and three resident aliens. FBI and
DHS agents arrested defendant number 1 in Atlanta, Georgia, as he was
returning from Paris, France;
Law enforcement agencies: FBI, ICE, DHS Office of Inspector General,
and Border Corruption Task Force;
Results: On May 25, 2004, the former INS inspector and nine additional
defendants were arraigned. All 10 defendants were charged with
conspiracy to bring in illegal aliens and bringing in illegal aliens
for financial gain in violation of 8 U.S.C. § 1324. Five defendants
were charged with conspiracy to import marijuana in violation of 21
U.S.C. §§ 952, 960, and 963. Three defendants were charged with
importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. One
defendant was charged with use of false immigration documents in
violation of 18 U.S.C. § 1546; As of April 15, 2005, nine defendants
had pled guilty (including defendant number 1), and sentencing was
pending; one defendant remained at large.
Press release date[A]: June 16, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: Two defendants were involved in the smuggling of 21 undocumented
aliens through the desert of Imperial County in a SUV. While in route,
the loaded vehicle blew a tire and rolled over on highway 78, resulting
in the deaths of four of the aliens;
Law enforcement agencies: U.S. Border Patrol, ICE, California Highway
Patrol, and Imperial County Sheriff's Office;
Results: On June 16, 2004, one defendant, as part of a plea agreement,
pled guilty to one count of bringing in an illegal alien, resulting in
death, a violation of 8 U.S.C. § 1324(a)(1)(A)(i) and (B)(iv); and
three counts of bringing in illegal aliens for financial gain, a
violation of 8 U.S.C. § 1324(a)(2)(B)(ii). The second defendant pled
guilty to one count of bringing in an illegal alien, resulting in
death, a violation of 8 U.S.C. § 1324(a)(1)(A)(i); and one count of
bringing in an illegal alien for financial gain in violation of 8
U.S.C. § 1324(a)(2)(B)(ii); On October 1, 2004, one defendant was
sentenced to 60 months in prison, followed by 3 years of supervised
release. The second defendant was sentenced to 46 months in prison,
followed by 3 years of supervised release.
Source: GAO summary of press releases (January through June 2004) by
U.S. Attorney's Office, Southern District of California, and sentencing
information provided by the Executive Office for U.S. Attorneys.
[A] The press releases from this district had dates but did not have
reference numbers, nor did the press releases cite U.S. Attorney case
numbers.
[End of table]
Texas, Southern District:
During the period January to June 2004, the U.S. Attorney's Office for
the Southern District of Texas issued press releases for 11 alien-
smuggling cases (see table 10):
* Two of these cases involved multiple alien fatalities--specifically,
11 illegal immigrants in a locked railroad grain car and 19 from
confinement in an abandoned tractor-trailer. And, in a third case, a
fleeing 17-year-old Guatemalan national was struck and killed by
oncoming highway traffic.
* Two other cases involved the smuggling of Chinese nationals into the
United States. In one of these cases, the convicted defendant forfeited
$250,000 in cash assets earned from the smuggling venture.
* In another case, five South Americans involved in an international
smuggling ring were prosecuted in the United States, even though the
truck that transported the ring's human cargo of undocumented aliens
was intercepted near Monterrey, Mexico. According to the press release,
prosecution of these defendants was the first use in the Southern
District of Texas of a law providing for the prosecution of crimes that
occurred outside the territorial limits of the United States. The law
takes into account the facts that the aliens' ultimate destination was
the United States and the smuggling operation would have the most
effect in the United States.
Table 10: Southern District of Texas Alien-Smuggling Cases Reported by
U.S. Attorney's Office Press Releases (January to June 2004):
Press release number and date[A]: 040105-flores January 5, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The evidence introduced during the trial showed that the charges
resulted from an incident that occurred in east Houston on June 3,
2003. On that date, a Houston Police officer responded to a call
regarding possible alien smuggling taking place at 908 Cesar Chavez
Street, Houston, Texas. On arrival, 29 illegal aliens were found inside
the building at that address. ICE agents were called to the scene and
began interviews, which led to the arrests of the two defendants.
Defendant number 1 was identified as being in charge of the premises on
Cesar Chavez Street. A search of the premises revealed a notepad
containing information with which the smugglers could contact family
members and friends to arrange the payment of smuggling fees. The
notepad containing the contact information was sent to the DHS forensic
unit, and a handwriting analysis found that the handwriting in the
notepad matched the known handwriting of defendant number 1; The
illegal aliens told investigating agents they entered the United States
near Brownsville, Texas. Defendant number 2 was identified as a guide
who led them through the brush in South Texas to circumvent the Border
Patrol checkpoint in Sarita, Texas. Testimony also showed the illegal
aliens were transported from South Texas to Houston in a number of
vehicles to the building on Cesar Chavez Street;
Law enforcement agencies: ICE and Houston Police Department;
Results: Both defendants were convicted in a jury trial that concluded
on August 28, 2003. On January 5, 2004, the U.S. Attorney announced
that each defendant was sentenced to 27 months imprisonment for
conspiracy to harbor and transport illegal aliens and five counts of
concealing illegal aliens.
Press release number and date[A]: 040115-reyes January 15, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The evidence introduced during three separate trials showed that
five South Americans were involved in an international smuggling ring
that transported undocumented aliens through El Salvador, Guatemala,
and Mexico into the United States. The truck transporting the aliens
was intercepted near Monterrey, Mexico, and Mexican authorities
detained the truck and human cargo. The group (who were mostly El
Salvadorans) had traveled by foot and then were transported in open bed
trucks to become part of a human cargo of 146 men and women loaded into
a tractor-trailer among stacked crates of bananas and apples. Witnesses
identified defendant number 1 as the owner of the house in San Salvador
where they paid initial smuggling fees, along with providing relatives'
names to be contacted for the remaining payment of their fees.
Defendants number 2, 3, 4, and 5 acted as guides or provided food and
water during the journey;
Law enforcement agencies: ICE;
Results: Five persons (four El Salvadorans and one Guatemalan) were
convicted in three jury trials that ended on January 15, 2004.
Defendant number 1 was sentenced to 82 months in federal prison without
parole for conspiring to aid and abet the smuggling of undocumented
workers into the United States and transporting illegal aliens. The
other prison terms levied were 8 years for defendants number 2 and 4,
66 months for defendant number 3, and 33 months for defendant number 5;
Prosecution of these defendants was the first use in the Southern
District of Texas of a law providing for the prosecution of crimes that
occurred outside the territorial limits of the United States. The law
takes into account the facts that the aliens' ultimate destination was
the United States and the smuggling operation would have the most
effect in the United States.
Press release number and date[A]: 040204-frazier February 4, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The defendant was arrested on April 21, 2003, after U.S. Border
Patrol agents discovered four undocumented Mexican aliens in the trunk
of a rental car. Among the four persons were a 3-year-old girl and her
mother. The defendant was a front-seat passenger when the car was
stopped and searched at the immigration checkpoint on Interstate
Highway 35, approximately 15 miles north of Laredo. Evidence presented
at trial showed he was involved in a larger conspiracy to transport and
harbor aliens approximately 2 months before his arrest. He picked up
undocumented aliens at a local hotel near the interstate highway and
the Rio Grande river, placing them in the trunk of a rental car for
transport to San Antonio, Texas. He dropped them off at a hotel, which
served as a staging area and drop-off point for the undocumented
aliens. According to trial testimony, it is believed that most of the
undocumented aliens were bound for locations in and around Texas,
including San Antonio, Austin, Dallas, and Houston;
Law enforcement agencies: U.S. Border Patrol;
Results: The defendant was convicted after a jury trial in September
2003 of conspiracy to transport 26 undocumented aliens within the
United States and was sentenced to 70 months in federal prison, without
parole. He was also fined $5,000 and assessed a $200 fee for the
federal crime victims' fund.
Press release number and date[A]: 040218-lara February 18, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: On May 16, 2003, Victoria County Sheriff's Department officers
discovered a group of 18 aliens concealed in the back of a tractor-
trailer after being called to a rest area on U.S. Highway 59, about 5
miles north of Victoria, Texas. According to aliens aboard the tractor-
trailer, the defendant (a Mexican national with U.S. resident alien
status) had given them a pickaxe to use as a way out of the trailer in
the event of an emergency; On June 26, 2003, Border Patrol agents
discovered another group of illegal aliens inside two grain-hopper bins
in a train yard in Harlingen, Texas. Upon discovery, the agents
estimated that the temperature inside the grain- hopper approached 120
degrees. One woman, who was 5 months pregnant, was airlifted to Valley
Baptist Hospital, and another four aliens required medical treatment.
According to agents, the local fire department had to decontaminate the
aliens, who were all covered in soda ash. The majority of the aliens in
both groups were Mexican nationals, but some were from Honduras and El
Salvador. The defendant paid drivers $500 to $800 for every alien
transported, and two aliens stated they had agreed to pay the defendant
$1,500 to transport them from the Rio Grande Valley to Houston;
Law enforcement agencies: U.S. Border Patrol, ICE, and Victoria County
Sheriff's Office;
Results: The defendant pleaded guilty to smuggling, transporting, and
harboring over 200 undocumented aliens from the Rio Grande Valley to
Corpus Christi, Victoria, and Houston, Texas. Further, he possessed a
firearm during the commission of the offense and had obstructed justice
by threatening a potential witness against him. He was sentenced to 188
months in federal prison, without parole.
Press release number and date[A]: 040220-salman February 20, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: Mexican federal agents arrested the defendant in November 1999
attempting to transport four Chinese nationals into the United States.
He was transferred to the United States in a prisoner exchange program.
The defendant admitted that-- while based in Quito, Ecuador, and Mexico
City--he worked closely with his wife in Houston and others to move
Chinese nationals into the United States for commercial and private
financial gain, creating and using fraudulent immigration documents to
facilitate their movement into the United States, and laundering the
money generated by his illegal activity. The defendant and others
operated from five separate locations--including Brooklyn, New York;
Mexico City; and Guang-Zhou City, China--and a Houston house and
condominium the defendant owned. Federal undercover agents successfully
penetrated the smuggling enterprise. The defendant unwittingly directed
his wife to pay an undercover agent over $250,000 in cash for his
services relating to the aliens' arrival in Houston from Quito. The
defendant arranged for the aliens to be transported by plane from
Houston to New York. The defendant also admitted that he and others
agreed to launder over $250,000 in cash proceeds earned from their
smuggling enterprise. They set up bank accounts in Houston and New York
to deposit smuggling funds and also used a safe deposit box to store
cash proceeds. The defendant will be forfeiting his interest in a
condominium used during the conspiracy to conceal and harbor some of
the aliens and $250,000 in cash assets earned from the smuggling
venture;
Law enforcement agencies: U.S. Border Patrol, legacy Immigration and
Naturalization Service, FBI, and Internal Revenue Service;
Results: The defendant pleaded guilty to importing 29 Chinese nationals
into the United States via Mexico and Ecuador between 1999 and 2001.
The defendant was convicted of racketeering conspiracy with an
international smuggling enterprise based in China and was sentenced to
prison for 51 months, without parole.
Press release number and date[A]: 040226-romero February 26, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: ICE initiated an investigation in October 2003 based on
information about possible alien-smuggling activity occurring at an
apartment complex in Houston. Agents witnessed activity consistent with
alien smuggling while conducting physical surveillance on the
apartment. Upon entering the apartment, agents found a total of 36
undocumented aliens, mostly from Brazil and some from Mexico. Further
investigation revealed that defendant number 4 delivered the aliens to
the apartment, and defendant number 2 concealed and guarded the aliens.
After defendant number 3 had delivered several undocumented aliens to
defendant number 4 in Corpus Christi, Texas, Western Union receipts
indicated that defendant number 4 had wired $3,300 to defendant number
3 in McAllen, Texas. Finally, defendant number 4 and defendant number 1
drove some of the aliens in separate vehicles from the apartment to
Atlanta, Georgia;
Law enforcement agencies: ICE;
Results: On February 25, 2004, all four defendants were convicted of
conspiring to harbor and transport undocumented aliens. The four
defendants were sentenced to prison for 12, 21, 24, and 30 months,
respectively.
Press release number and date[A]: 040304-licea March 3, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: Defendant number 1, a Mexican citizen, was convicted in March
2003 for his role in a smuggling operation that resulted in the deaths
of 11 illegal immigrants in a rail car in October 2002 in Denison,
Iowa. He pled guilty to conspiring to transport and harboring
undocumented aliens. Court documents indicated that the defendant was
an integral part of an international smuggling operation moving illegal
aliens from Central America into the United States through Mexico
between January 2000 and February 2003. The organization harbored the
aliens in drop houses in or near Harlingen, Texas, transported the
aliens usually by rail past the U.S. Border Patrol check point in
Sarita, Texas, then by vehicle to Houston, Texas, and other parts of
the country. In June 2002, the defendant and other coconspirators lost
track of a locked railroad grain car into which 11 undocumented aliens
had been loaded. The 11 aliens were found 4 months later in the same
locked rail car at a depot in Denison, Iowa, having died of dehydration
and hyperthermia; Several other defendants have been charged with
various aspects of the crime. One defendant, a former conductor for the
Union Pacific Railroad, provided the group with information on the
scheduled stops and locations of northbound trains headed out of the
Rio Grande Valley so that the smugglers would know when and where they
could load the aliens;
Law enforcement agencies: ICE, FBI, Crawford County Iowa Sheriff's
Office, Denison Police and Fire Departments, Iowa Division of Criminal
Investigation, Union Pacific Railroad Police, and the Iowa State
Medical Examiner's Office;
Results: As of April 2005, sentencing was still pending for defendant
number 1 and the former railroad conductor. Four other defendants
received sentences of 57 months, 33 months, and 21 months (two
defendants), respectively. Another two individuals remained fugitives
as of April 2005.
Press release number and date[A]: Five press releases (the "Victoria
19" case): 040301-Williams March 15, 2004; 040322-Gaytan March 22,
2004; 040412-Holloway April 12, 2004; 040429-Garcia April 29, 2004;
040614-Chavez June 14, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: Fourteen persons were charged in a superseding indictment on
March 15, 2004, for their alleged involvement in a smuggling operation
in which at least 74 undocumented aliens from Mexico, El Salvador,
Honduras, Nicaragua, the Dominican Republic, and Guatemala were loaded
onto a tractor-trailer near Harlingen, Texas, to be transported to
Houston. This smuggling operation resulted in the deaths of 19
undocumented aliens--17 of whom were found dead in and around the
trailer abandoned by the driver in Victoria, Texas, on May 14, 2003.
Fifty-five undocumented aliens survived the ill-fated journey. Each
undocumented alien was charged approximately $1,800 in smuggling fees
for the trip;
Law enforcement agencies: ICE; Texas Department of Public Safety
(including the Texas Rangers); the Victoria County Sheriff's
Department; and the McAllen, Harlingen, and Victoria Police
Departments;
Results: A Jamaican national (the truck driver) has been charged with
being part of a conspiracy to smuggle and transport undocumented aliens
for financial gain that allegedly resulted in the death of some of the
aliens. The Attorney General has authorized the death penalty be sought
against this defendant, whose jury trial began on February 22, 2005. A
partial verdict was returned on March 23, 2005; appellate issues are
pending. The status (as of April 2005) of other 13 defendants was as
follows: Four defendants had pled to the conspiracy count, which
carries a maximum penalty of life imprisonment, and were awaiting
sentencing; One defendant had pled guilty to harboring and transporting
a smuggled 3-year-old child and was sentenced to 14 months'
confinement; One defendant's jury trial had been suspended pending
completion of an appeal to the Fifth Circuit; Following a 3- week jury
trial, two defendants were convicted on numerous counts of the
superseding indictment. Many of the counts carry a maximum penalty of
life imprisonment. The defendants were awaiting sentencing; One
defendant's motion for a judgment of acquittal pursuant to Rule 29 of
the Federal Rules of Criminal Procedure was granted by the district
court judge upon completion of the government's case in chief. The
defendant was in the custody of ICE and was undergoing deportation
proceedings; Three defendants were expelled from Mexico to the United
States on February 9, 2005, and were apprehended that same day upon
arrival at the George Bush Intercontinental Airport in Houston, Texas.
The defendants were being detained awaiting trial, which is scheduled
for October 17, 2005; One defendant was a fugitive in Mexico, and the
United States was seeking extradition.
Press release number and date[A]: 040401-Chen April 1, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The indictment is the result of an ICE undercover operation in
late 2003, during which federal agents infiltrated an organization by
posing as alien smugglers willing to transport Chinese nationals into
the United States. The husband and wife defendants (both Chinese
nationals) made payments of $12,000 to $17,000 per alien to undercover
agents for their assistance in the smuggling scheme, which allegedly
reached over $100,000 for the 12 undocumented aliens brought to the
United States over a 3-month period; According to the indictment, the
two defendants were members of an organization specializing in making
arrangements for illegal alien immigrants from the People's Republic of
China to be smuggled into the United States via Thailand and certain
Central American countries. Human smugglers guided the aliens in the
Central American countries to staging areas south of the U.S. border.
Typically, the aliens were required to pay a portion of their total
smuggling fee in advance of their departure, with the balance due after
arriving in the United States. Upon being guided into the United States
by smugglers, the aliens were held in drop houses or hotels until their
relatives or friends paid the balance of the smuggling fee;
Law enforcement agencies: ICE;
Results: The defendants were charged with 12 counts of smuggling for
commercial gain and private financial advantage and 4 counts of money
laundering for the more than $100,000 in fees paid to the undercover
officers. Sentencing of the two convicted defendants was set for May
2005; each defendant faces a mandatory minimum sentence of 3 years in
prison.
Press release number and date[A]: 040526-Garcia-Garcia May 26, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: The evidence showed that on December 2, 2003, U. S. Border
Patrol agents on routine patrol near Premont, Texas, saw a pickup truck
they believed to contain undocumented aliens. The agents turned on
their emergency equipment and attempted to stop the vehicle. As the
driver (later identified as the defendant) of the vehicle slowed, all
of the occupants of the truck jumped out and fled. One occupant, a 17-
year-old Guatemalan national, ran across the highway into the path of
an oncoming tractor-trailer and was struck and killed. The defendant
was tracked down and arrested;
Law enforcement agencies: U. S. Border Patrol and ICE;
Results: The defendant (a Mexican citizen) pleaded guilty to
transporting an undocumented alien for private financial gain,
resulting in the death of a 17-year-old Guatemalan national. The
defendant was sentenced to 64 months in prison.
Press release number and date[A]: 040629-Vera June 29, 2004;
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status):
Facts: Evidence revealed that on April 29, 2004, a Texas Department of
Public Safety trooper attempted to stop a speeding Chevrolet Suburban
traveling along Highway 59 near El Campo, Texas. The defendant
attempted to elude the trooper by veering into the southbound lane of
oncoming traffic, jumping the median into the northbound lane and
resuming travel at a high speed. However, a tire on the car blew out,
forcing him to stop. He attempted to escape on foot but was arrested by
the trooper. Five aliens illegally in the United States were found
hiding in the Suburban; The defendant admitted to ICE agents that he
had received a telephone call from an alien smuggler offering to pay
him a fee to transport undocumented aliens from Victoria, Texas, to
Houston. He said he had picked up the aliens in Victoria, Texas, and
was transporting the aliens to Houston, Texas;
Law enforcement agencies: ICE and Texas Department of Public Safety;
Results: On June 28, 2004, the defendant (a U.S. citizen) pleaded
guilty to transporting undocumented aliens for private financial gain.
The defendant was sentenced to 6 months of imprisonment.
Source: GAO summary of press releases (January through June 2004) by
U.S. Attorney's Office, Southern District of Texas, and sentencing
information provided by the Executive Office for U.S. Attorneys.
[A] The press releases from this district did not cite U.S. Attorney
case numbers.
[End of table]
[End of section]
Appendix VI: Possible Effects of Not Having a Civil Forfeiture
Provision for Real Property Used to Facilitate Alien Smuggling:
In March 2005, on the basis of its survey of U.S. Attorneys Offices
along the southwest border, the Department of Justice provided us
summary examples of recent or pending alien-smuggling cases in which
real property used to facilitate the offense could not be forfeited
because of the absence of statutory civil forfeiture authority.
According to Justice, the following summaries are illustrative of
typical cases that recur with great frequency.
District of Arizona:
The Phoenix office of the United States Attorney for the District of
Arizona reported a variety of instances in which the absence of a civil
forfeiture statute for real property used to commit an alien-smuggling
offense precluded the forfeiture of the property. In one case, the
government did not discover that the alien smuggler owned real property
that he had used to commit the offense until after the criminal case
was over. At that point it was too late to seek criminal forfeiture of
the property, because criminal forfeiture must be imposed as part of
the defendant's sentence, and the absence of civil forfeiture made it
impossible to recover the property. Therefore, the property remained in
the hands of the convicted smuggler.
In two other cases, the U.S. Attorney was unable to forfeit stash
houses used to hold illegal aliens because the houses were rented from
third parties, who could not be charged with the criminal offense. In
the absence of civil forfeiture authority, the government was powerless
to forfeit these properties, even after the government sent the
landlords warning letters giving them notice that their property was
being used illegally and advising them to take steps to stop the
illegal use.[Footnote 49]
The Tucson office of the United States Attorney for the District of
Arizona reported having cases in which properties used to store illegal
aliens are owned by corporations. Because the corporations themselves
are not prosecuted criminally for the alien-smuggling offenses, there
was no possibility of criminal forfeiture of the properties, even if
the alien smugglers were convicted.
Central District of California:
The United States Attorney for the Central District of California
reported three separate incidents in the second half of calendar year
2004 in which a rental property was used as a stash house for the
forced detention of large numbers of illegal aliens. In each case, the
stash house was a virtual prison, complete with bars and steel gates.
Those facts and other circumstances made it likely that the landlord
was aware of the purposes for which the properties were being used.
Thus, the landlord would not have been able to assert a valid innocent
owner defense to a civil forfeiture action. However, there was
insufficient evidence to charge the landlord (as opposed to the tenant)
with an alien-smuggling violation--thus, precluding criminal forfeiture
of the property. As a result, given the absence of a civil forfeiture
provision for real property, the rental properties used as stash houses
were exempt from forfeiture.
Southern District of Texas:
The United States Attorney for the Southern District of Texas reported
having a pending case in which fugitives hiding in Mexico owned real
property in Texas that they have used as a staging area for alien
smuggling. Because the property owners are fugitives, there is no
possibility of forfeiting the property criminally. Also, in the absence
of a civil forfeiture statute for real property, there is no
possibility of forfeiting the property civilly.
The same office reported being currently engaged in active
investigations of cases in which hotels, motels, and private homes are
used as staging areas for alien smuggling. Typically, the properties
are temporary holding sites for aliens awaiting transport. In most
cases, the owners of the properties are relatives of the smugglers--
and, therefore, are aware of the smuggling activity--but are not
themselves engaged in the smuggling operation. Thus, it is unlikely
that any of the properties could be forfeited criminally.
[End of section]
Appendix VII: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
May 17, 2005:
Mr. Richard Stana:
Director, Homeland Security and Justice:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Stana:
RE: Draft Report GAO-05-305, Combating Alien Smuggling: Opportunities
Exist to Improve the Federal Response (GAO Job Code 440317):
The Department of Homeland Security (DHS) appreciates the opportunity
to review and comment on the Government Accountability Office's draft
report. The auditors identified areas where action can be taken to
improve anti-smuggling efforts and yet recognized on-going efforts and
accomplishments. We-generally agree with the findings and
recommendations made.
The auditors determined that the DHS' components are using financial
investigative techniques to follow the money trail and that seizure of
smuggling organizations' monetary assets are increasing. For example,
the U.S. Immigration and Customs Enforcement (ICE) seizures totaled
$7.8 million from alien-smuggling investigations for the first six
months of fiscal year 2005 compared to $7.3 million for all of fiscal
year 2004.
The report notes several of the reasons why ICE has not finalized its
national strategy for combating alien smuggling, including the need to
incorporate lessons learned from prior successful efforts to deter
migrant smuggling and related violence in-Arizona and the evolving
relationship between ICE and U.S. Customs and Border Protection (CBP).
For instance, to fight violent human smuggling and trafficking gangs in
Phoenix, Arizona, and the surrounding area, ICE launched Operation ICE
Storm - an unprecedented multi-agency initiative to dismantle the
organized criminal enterprises that have made human smuggling a
profitable but dangerous business venture in the southwestern United
States. ICE Storm is part of ICE's broader goal of fighting human
smuggling and trafficking wherever it may occur in order to promote
U.S. border security, improve the integrity of the nation's immigration
system, and shut down vulnerabilities in the nation's homeland
security.
ICE Storm's methodology brings to bear the broad statutory authorities
and investigative expertise of ICE in a task force configuration to
include several ICE offices, CBP, other federal agencies, and state and
local law enforcement organizations. This task force approach combines
the wide range of skills, enforcement tools, and legal authorities of
several agencies - pooling resources to develop a more powerful weapon
in the fight against human smuggling. One of ICE's most important
contributions to this initiative is targeting smuggling organizations'
money in order to disable their operations by crippling their financial
infrastructure. ICE lends its experience in financial investigations to
help state and local agencies follow the money trail in ways not before
possible. In addition, ICE's authority for enforcing immigration law
provides another powerful tool in the fight against human smuggling.
These combined authorities allow DHS' components in conjunction with
our law enforcement partners to simultaneously, attack smuggling rings
from multiple angles.
While Operation ICE Storm focuses on the Phoenix metropolitan area, the
initiative is designed as a strategic model for similar anti-smuggling
operations in other parts of the nation. This narrowed focus on the
southwest border will allow ICE to review best practices and evaluate
lessons learned before an expanded nationwide strategy is finalized. In
the interim, ICE continues to provide guidance to the field in the form
of training seminars and managerial conferences. ICE posts guidance and
policy memoranda to the field on a web page available to. every ICE
Agent at his/her desktop for reference. This website is regularly
reviewed and updated by the ICE Human Smuggling and Trafficking staff
to ensure that the most recent guidance is available to the field at
all times.
The report states that nationally about seven percent of ICE's total
investigative hours were devoted to alien smuggling cases in fiscal
year 2004. However, it should be emphasized that other investigative
programs may at times have a nexus to alien smuggling and consequently
the seven percent statistic is too low.
The report lists two recommendations, one of which is the establishment
of a cost-effective mechanism for tracking the number and results of
referrals by CBP to ICE. To clarify, ICE is capable of tracking
referred investigations from CBP to ICE; however, there currently is
not a mechanism in place for tracking the number of leads referred that
do not generate investigations. The Sector Chiefs and Special Agents in
Charge have developed operational partnerships at the local level that
allow for the flexibility needed for dealing with unique circumstances
within various border environments. Coordination efforts have been
effective, although we recognize that there is always more that can be
done. To that end, a six month joint review to examine implementation
and compliance with a November 2004 Memorandum of Understanding (MOU)
is currently underway. The purpose of the MOU was to address the roles
and responsibilities of offices within CBP (Office of Border Patrol)
and ICE (Office of Investigations), including provisions for sharing
intelligence. Once the review is completed, CBP and ICE, in
consultation with Border and Transportation Security, will work
together to identify and implement a solution to address the
recommendation.
We are pleased by the successful cooperative effort between ICE and CBP
in this area. New initiatives based on the ICE Storm model of
coordination and cooperation between federal, state, and local agencies
have already been launched. For example, in March 2004, DHS launched
the Arizona Border Control (ABC) initiative, led by ICE and CBP, to
stop the flow of illegal immigration at the Arizona-Mexico border
through aggressive policing, interagency cooperation, and increased
surveillance by unmanned aerial drones. In June 2004, DHS launched the
LAX Initiative, an intelligence driven operation to deter human
smuggling at the Los Angeles International Airport, a key
transportation hub used by criminal organizations to move smuggled
migrants to destinations across the United States.
We are providing technical comments to your office under separate
cover.
Sincerely,
Signed by:
Steven Pecinovsky:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
FOOTNOTES
[1] GAO, Alien Smuggling: Management and Operational Improvements
Needed to Address Growing Problem, GAO/GGD-00-103 (Washington, D.C.:
May 1, 2000).
[2] Mexico represented 91 percent of deportable aliens (by region or
country of nationality) who entered the United States without
inspection and were apprehended in fiscal year 2003, according to DHS's
2003 Yearbook of Immigration Statistics (Washington, D.C.: Sept. 2004).
[3] Also, according to the Department of Justice, alien-smuggling-
related activity may have been prosecuted under a variety of other
federal criminal statutes covering, for example, passport fraud,
immigration document fraud, bribery of a public official, and
racketeering activity.
[4] See 8 U.S.C. § 1324. Also, as mentioned previously, alien-
smuggling-related activity may be prosecuted under a variety of other
federal criminal statutes covering, for example, passport fraud,
immigration document fraud, bribery of public officials, and
racketeering activity.
[5] There are various differences in penalty provisions applicable to
alien smuggling, including the following:
There are mandatory minimum penalties for certain violations of 8
U.S.C. § 1324(a)(2) but not for similar violations of 8 U.S.C. §
1324(a)(1)(A).
Enhanced penalties for causing serious bodily injury or placing life in
jeopardy apply to violations of 8 U.S.C. § 1324(a)(1)(A) but not to
similar violations of 8 U.S.C. § 1324(a)(2).
The death penalty or imprisonment for life may be imposed for
violations of 8 U.S.C. § 1324(a)(1)(A) in which death results, but such
penalties are not available for similar violations of 8 U.S.C. §
1324(a)(2).
[6] See appendix II for additional background information about the
Victoria 19 case and Operation ICE Storm, which was subsequently
expanded statewide as part of the Arizona Border Control Initiative.
[7] Statement of Tom Homan, ICE Interim Resident Agent-In-Charge (San
Antonio, Tex.); at a hearing ("Deadly Consequences of Illegal Alien
Smuggling") before the Subcommittee on Immigration, Border Security,
and Claims, House Committee on the Judiciary; June 24, 2003; and
statement of Charles H. Demore, ICE Interim Assistant Director of
Investigations; at a hearing ("Alien Smuggling/Human Trafficking:
Sending a Meaningful Message of Deterrence") before the Subcommittee on
Crime, Corrections and Victims' Rights, Senate Committee on the
Judiciary, July 25, 2003.
[8] GAO, Homeland Security: Management Challenges Remain in
Transforming Immigration Programs, GAO-05-81 (Washington, D.C.: Oct.
14, 2004), page 11.
[9] In some drug-trafficking investigations, the traffickers are
allowed to proceed on their journey and deliver a shipment, unaware
that law enforcement authorities are monitoring the shipment. The
purpose of this controlled-delivery investigative technique is to
capture organizers or kingpins, rather than simply arresting a courier
or seizing a single shipment.
[10] Launched in July 2003, Cornerstone is ICE's comprehensive
enforcement initiative focusing on financial and trade investigations
to identify and eliminate vulnerabilities that can be exploited.
Besides financial and money-laundering investigations, Cornerstone
targets commercial fraud, smuggling and trafficking, export and trade
violations, and intellectual property crimes.
[11] To more fully understand and illustrate the types and results of
alien-smuggling investigations, we identified and summarized recent
cases that have been prosecuted in these three federal judicial
districts (see app. V).
[12] The Justice officials noted that--based on interagency working
relationships, including participation on the ICE Undercover Review
Committee--it is clear that the development of a financial evaluation
of investigative targets has become a routine part of the investigative
process.
[13] ICE, Inside ICE, "ICE's 'Operation Palmdale' Disrupts Major
International Smuggling Ring," Volume 1, Issue 18, December 20, 2004.
[14] U.S. Attorney's Office, Northern District of Georgia, "Operation
Sugar Crisp Takes Down Ring, Indictment Unsealed Naming 19 Defendants,"
November 19, 2004.
[15] ICE, news release, "Operators of Chinese Restaurants in New York
Charged with Money Laundering and Harboring Illegal Aliens," November
18, 2004. Also, the February 2005 issue of Government Executive ("ICE
Warms Up--New Partnership Nets Major Bust for Immigration and Customs
Agents") reported that "Last November, ICE executed search warrants on
several restaurants and homes, arrested ringleaders, and seized 11
vehicles and nearly $4 million in cash, real estate, and other assets."
[16] ICE, news release, "Woman Sentenced to 18 Months in Prison for
Visa Fraud and Money Laundering in Connection with Cambodian Adoption
Scam," November 19, 2004.
[17] Regarding the bulk-cash seizures, the report noted that IRS-CI
agents worked closely with other law enforcement agencies of the South
Texas Asset Forfeiture and Money Laundering Task Force.
[18] These houses sometimes are also referred to as "drop" houses or
"safe" houses where smugglers hide aliens while awaiting payment and
travel arrangements to final destinations throughout the nation.
[19] Pub. L. No. 106-185, 114 Stat. 202 (Apr. 24, 2000).
[20] However, if money laundering were charged in this example case,
the house used for alien smuggling could be forfeited under a money-
laundering forfeiture provision.
[21] A related concern raised by Justice is that the current alien
smuggling statutes need to be amended to define "proceeds" as including
the cost savings realized by an employer who engages in alien smuggling
for the purpose of employing cheap illegal labor. The scope of our work
did not cover this issue.
[22] Statement of Tom Homan, ICE Interim Resident Agent-In-Charge (San
Antonio, Tex.), at a hearing ("Deadly Consequences of Illegal Alien
Smuggling") before the Subcommittee on Immigration, Border Security,
and Claims, House Committee on the Judiciary, June 24, 2003, and
statement of Charles H. Demore, ICE Interim Assistant Director of
Investigations, at a hearing ("Alien Smuggling/Human Trafficking:
Sending a Meaningful Message of Deterrence") before the Subcommittee on
Crime, Corrections and Victims' Rights; Senate Committee on the
Judiciary, July 17, 2003.
[23] Two other immigrants who were inside the trailer later died at a
hospital, making a death toll of 19. More details about the "Victoria
19" case are presented in appendix V.
[24] Statement of John P. Torres, ICE Deputy Assistant Director,
Smuggling and Public Safety, at a hearing ("Pushing the Border Out on
Alien Smuggling: New Tools and Intelligence Initiatives") before the
Subcommittee on Immigration, Border Security, and Claims; House
Committee on the Judiciary, May 18, 2004.
[25] ICE press release, "Department of Homeland Security Launches
Operation 'ICE Storm'--ICE to Lead Landmark Crackdown on Human
Smuggling," November 10, 2003.
[26] As of April 2005, according to ICE, federal seizures under ICE
Operation Storm included $38,000 in real property; and four additional
properties were pending seizure, with a total potential seizure value
of $260,000.
[27] Act of June 1, 2004, ch. 291, 2004 Ariz. Legis. Serv. 291 (West)
(amending the definition of racketeering related to money laundering).
The law became effective August 25, 2004, and is codified at Ariz. Rev.
Stat. § 13-2317.F.3(c)(2004).
[28] DHS, Press Office, "Department of Homeland Security Announces
Arizona Border Control Initiative," March 16, 2004.
[29] Statement of John P. Torres, ICE Deputy Assistant Director,
Smuggling and Public Safety, at a hearing ("Pushing the Border Out on
Alien Smuggling: New Tools and Intelligence Initiatives") before the
Subcommittee on Immigration, Border Security, and Claims; House
Committee on the Judiciary; May 18, 2004.
[30] ICE press release, "Feds Vow to Use 'ICE Storm' Tactics in Other
Cities as Phoenix Sees Progress in Human Smuggling Crackdown," May 18,
2004.
[31] ICE news release, "Homeland Security Expands Efforts to Combat
Human Smuggling in the Los Angeles Area--Initial Phase of Multi-Agency
Operation Focuses on LAX," July 14, 2004.
[32] Remarks of Michael J. Garcia (Assistant Secretary, ICE), at the
U.S. Coast Guard Intelligence Coordination Center's Fourth Annual Human
Smuggling and Illegal Migration Conference (Apr. 6, 2004).
[33] In 2004, Air and Marine Operations was transferred to CBP.
[34] Our 1993 report provides an historical context of the need for
such a merger. See GAO, Customs Service and INS: Dual Management
Structure for Border Inspections Should Be Ended, GAO/GGD-93-111
(Washington, D.C.: June 30, 1993).
[35] The White House; Presidential Directive/NSC 27, Subject:
Procedures for Dealing with Non-Military Incidents; January 19, 1978.
[36] GAO, Investigations of Terrorist Financing, Money Laundering, and
Other Financial Crimes, GAO-04-464R (Washington, D.C.: Feb. 20, 2004).
[37] According to the FBI, the first Joint Terrorism Task Force came
into being in 1980, and the total number of task forces has nearly
doubled since September 11, 2001. Today, there is a Joint Terrorism
Task Force in each of the FBI's 56 main field offices, and additional
task forces are located in smaller FBI offices.
[38] GAO, Money Laundering: FinCEN's Law Enforcement Support Role Is
Evolving, GAO/GGD-98-117 (Washington, D.C.: June 19, 1998).
[39] Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act, Pub. L. No. 107-56,
115 Stat. 272 (2001).
[40] Department of Justice press release, "Two U.S. State Department
Employees Plead Guilty in Bribes-For-Visas Scheme" (Apr. 30, 2004).
[41] GAO, Investigations of Terrorist Financing, Money Laundering, and
Other Financial Crimes, GAO-04-464R (Washington, D.C.: Feb. 20, 2004).
[42] The White House, Office of the Press Secretary, Fact Sheet,
Migrant Smuggling and Trafficking in Persons Coordination Center
(Washington, D.C.: Dec. 15, 2000). The fact sheet reported that "Today,
in furtherance of the President's International Crime Control Strategy,
the Departments of State and Justice announced the establishment of a
Migrant Smuggling and Trafficking in Persons Coordination Center."
[43] Pub. L. No. 108-458, 118 Stat. 3638, 3813 (Dec. 17, 2004).
[44] Annual G8 summits bring together the leaders of Canada, France,
Germany, Italy, Japan, Russia, the United Kingdom, and the United
States. In addition, the European Union participates and is represented
by the President of the European Council and the President of the
European Commission. The annual meetings cover a broad-based agenda of
international economic, political, and social issues.
[45] As of July 2004, center staffing consisted of eight full-time-
equivalent personnel--that is, three full-time State Department
personnel (an officer and an information technologist detailed from the
Bureau of International Narcotics and Law Enforcement Affairs and an
intelligence analyst detailed from the Bureau of Diplomatic Security);
four full-time DHS personnel (a Director nominee designate, two senior
special agents, and one analyst); one part-time DHS senior special
agent; and one part-time Central Intelligence Agency senior analyst. In
March 2005, State Department officials provided us updated information,
which indicated that the center's staffing level was approximately one-
half of the total 24 full-time-equivalent positions anticipated to be
filled by the end of calendar year 2005.
[46] Section 7202(d) specified that the report shall be transmitted not
later than 180 days after enactment of the act--that is, not later than
June 15, 2005. By memorandum dated April 21, 2005, the President
assigned this reporting function to the Secretary of State. The
memorandum noted that the reporting function shall be coordinated with
the Attorney General and the Secretary of Homeland Security.
[47] Michael Surgalla and Arthur Norton, "International Aspects of
Criminal Immigration Enforcement," United States Attorneys' Bulletin,
September 2003.
[48] A letter rogatory is a method of obtaining assistance from abroad
in the absence of a treaty or executive agreement. Essentially, this
formal device is a request from a court in one country to a court in
another country to seek international judicial assistance in obtaining
testimony or other evidence.
[49] Justice noted that, in some instances, the federal authorities
were able to refer cases to the Arizona Attorney General for civil
forfeiture under Arizona law.
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