Alien Smuggling
DHS Needs to Better Leverage Investigative Resources and Measure Program Performance along the Southwest Border Gao ID: GAO-10-328 May 24, 2010Alien smuggling along the southwest border is a threat to the security of the United States and Mexico. Within the Department of Homeland Security (DHS), the Office of Investigations (OI)--part of U.S. Immigration and Customs Enforcement (ICE)--is the primary federal agency responsible for investigating alien smuggling along the southwest border. As requested, this report addresses, for the southwest border, (1) OI's efforts to counter alien smuggling since 2005, and opportunities, if any, for ICE to use its resources more effectively; (2) the progress DHS has made in seizing alien smugglers' assets since fiscal year 2005 and any promising techniques that could be applied to seize smugglers' assets; and (3) the extent to which ICE has objectives related to alien smuggling and measures to assess progress. GAO interviewed officials in all four OI offices along the southwest border and analyzed data on OI's cases and seizures, from fiscal years 2005 through 2009.
OI work years spent investigating alien smuggling increased from 190 to 197 from fiscal years 2005 through 2009, and an opportunity exists to better leverage resources. Officials from two of the four OI offices GAO visited said that in addition to conducting criminal investigations, OI has been tasked to respond to calls from state and local law enforcement to process and transport aliens for possible removal, which diverts OI resources from conducting alien smuggling and other investigations. In 2006, the Office of Detention and Removal Operations (DRO), another ICE subcomponent, took over responsibility for responding to state and local law enforcement calls in the Phoenix metropolitan area, through the Law Enforcement Agency Response (LEAR) program. For this program, officials from DRO, not OI, transport and process aliens for removal. From October 1, 2008, to May 24, 2009, the LEAR program processed 3,776 aliens, aliens who OI would have otherwise had to process. By studying the feasibility of expanding the LEAR program, ICE would be in a better position to determine if it could more efficiently direct its OI resources toward alien smuggling and other investigations. OI's alien smuggling asset seizures have decreased since 2005; however, opportunities exist to leverage additional seizure and financial investigative techniques. According to OI data, alien smuggling seizures nationwide increased in value from about $11.2 million in 2005 to about $17.4 million in 2007, but declined to about $12.2 million in fiscal year 2008 and to about $7.6 million in fiscal year 2009. One opportunity to leverage financial techniques to disrupt alien smuggling and seize assets involves assessing the financial investigative techniques used by an Arizona task force. The task force seized millions of dollars and disrupted alien smuggling operations by following cash transactions flowing through money transmitters that serve as the primary method of payment to those individuals responsible for smuggling aliens. An overall assessment of whether and how these techniques may be applied in the context of disrupting alien smuggling could help ensure that ICE is not missing opportunities to take additional actions and leverage resources to support the common goal of countering alien smuggling. ICE has established objectives for its alien smuggling-related enforcement programs, but could do more to better measure progress toward achieving program objectives. For example, one of its components, DRO, has defined the objective of the Mexican Interior Repatriation Program (MIRP) as to remove aliens who are apprehended during the hot and dangerous summer months from the United States to the interior of Mexico to deter them from returning in order to reduce loss of life and to help disrupt alien smuggling operations; however, DRO has not established performance measures to evaluate its progress in meeting its objective consistent with internal control standards. Thus, ICE does not know the effectiveness of its efforts related to MIRP at deterring individuals from illegally returning to the United States. GAO recommends, among other things, that DHS evaluate the feasibility of expanding the LEAR program, assess the Arizona Attorney General's investigations strategy, and develop performance measures for MIRP. DHS agreed with four of five recommendations in this report directed to DHS but disagreed with establishing MIRP performance measures because it did not believe such action was appropriate. GAO believes this recommendation is consistent with the program's intent.
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: Richard M. Stana Team: Government Accountability Office: Homeland Security and Justice Phone: (202) 512-8816GAO-10-328, Alien Smuggling: DHS Needs to Better Leverage Investigative Resources and Measure Program Performance along the Southwest Border
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
May 2010:
Alien Smuggling:
DHS Needs to Better Leverage Investigative Resources and Measure
Program Performance along the Southwest Border:
GAO-10-328:
GAO Highlights:
Highlights of GAO-10-328, a report to congressional requesters.
Why GAO Did This Study:
Alien smuggling along the southwest border is a threat to the security
of the United States and Mexico. Within the Department of Homeland
Security (DHS), the Office of Investigations (OI)”part of U.S.
Immigration and Customs Enforcement (ICE)”is the primary federal
agency responsible for investigating alien smuggling along the
southwest border. As requested, this report addresses, for the
southwest border, (1) OI‘s efforts to counter alien smuggling since
2005, and opportunities, if any, for ICE to use its resources more
effectively; (2) the progress DHS has made in seizing alien smugglers‘
assets since fiscal year 2005 and any promising techniques that could
be applied to seize smugglers‘ assets; and (3) the extent to which ICE
has objectives related to alien smuggling and measures to assess
progress. GAO interviewed officials in all four OI offices along the
southwest border and analyzed data on OI‘s cases and seizures, from
fiscal years 2005 through 2009.
What GAO Found:
OI work years spent investigating alien smuggling increased from 190
to 197 from fiscal years 2005 through 2009, and an opportunity exists
to better leverage resources. Officials from two of the four OI
offices GAO visited said that in addition to conducting criminal
investigations, OI has been tasked to respond to calls from state and
local law enforcement to process and transport aliens for possible
removal, which diverts OI resources from conducting alien smuggling
and other investigations. In 2006, the Office of Detention and Removal
Operations (DRO), another ICE subcomponent, took over responsibility
for responding to state and local law enforcement calls in the Phoenix
metropolitan area, through the Law Enforcement Agency Response (LEAR)
program. For this program, officials from DRO, not OI, transport and
process aliens for removal. From October 1, 2008, to May 24, 2009, the
LEAR program processed 3,776 aliens, aliens who OI would have
otherwise had to process. By studying the feasibility of expanding the
LEAR program, ICE would be in a better position to determine if it
could more efficiently direct its OI resources toward alien smuggling
and other investigations.
OI‘s alien smuggling asset seizures have decreased since 2005;
however, opportunities exist to leverage additional seizure and
financial investigative techniques. According to OI data, alien
smuggling seizures nationwide increased in value from about $11.2
million in 2005 to about $17.4 million in 2007, but declined to about
$12.2 million in fiscal year 2008 and to about $7.6 million in fiscal
year 2009. One opportunity to leverage financial techniques to disrupt
alien smuggling and seize assets involves assessing the financial
investigative techniques used by an Arizona task force. The task force
seized millions of dollars and disrupted alien smuggling operations by
following cash transactions flowing through money transmitters that
serve as the primary method of payment to those individuals
responsible for smuggling aliens. An overall assessment of whether and
how these techniques may be applied in the context of disrupting alien
smuggling could help ensure that ICE is not missing opportunities to
take additional actions and leverage resources to support the common
goal of countering alien smuggling.
ICE has established objectives for its alien smuggling-related
enforcement programs, but could do more to better measure progress
toward achieving program objectives. For example, one of its
components, DRO, has defined the objective of the Mexican Interior
Repatriation Program (MIRP) as to remove aliens who are apprehended
during the hot and dangerous summer months from the United States to
the interior of Mexico to deter them from returning in order to reduce
loss of life and to help disrupt alien smuggling operations; however,
DRO has not established performance measures to evaluate its progress
in meeting its objective consistent with internal control standards.
Thus, ICE does not know the effectiveness of its efforts related to
MIRP at deterring individuals from illegally returning to the United
States.
What GAO Recommends:
GAO recommends, among other things, that DHS evaluate the feasibility
of expanding the LEAR program, assess the Arizona Attorney General‘s
investigations strategy, and develop performance measures for MIRP.
DHS agreed with four of five recommendations in this report directed
to DHS but disagreed with establishing MIRP performance measures
because it did not believe such action was appropriate. GAO believes
this recommendation is consistent with the program‘s intent.
View [hyperlink, http://www.gao.gov/products/GAO-10-328] or key
components. For more information, contact Rich Stana at (202) 512-8777
or stanar@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
OI Work Years Spent Investigating Alien Smuggling Recently Increased;
Opportunity Exists to Better Leverage Resources:
Alien Smuggling Asset Seizures Have Decreased since 2005;
Opportunities Exist to Leverage Additional Financial Investigative and
Seizure Techniques:
OI and CBP Have Established Objectives for Their Alien Smuggling-
Related Programs, but Can Do More to Better Measure Progress toward
Achieving Program Objectives:
Conclusions:
Recommendations for Executive Action:
Agency Comments, Third-Party Views, and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: DRO and CBP Programs That Address Alien Smuggling:
Appendix III: Disposition of Alien Smuggling Cases along the Southwest
Border:
Appendix IV: Immigration and Customs Enforcement Office of
Investigations Alien Smuggling Coordination Efforts:
Appendix V: Comments from the Department of Homeland Security:
Appendix VI: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Additional Federal Laws Used to Prosecute Alien Smuggling
Cases:
Table 2: OI Alien Smuggling Assets Seized in Fiscal Years 2005 through
2009 Nationwide:
Table 3: Examples of OI Alien Smuggling Financial Investigations:
Table 4: Number and Types of Border Patrol Seizures Related to Alien
Smuggling along the Southwest Border for Fiscal Years 2005 through
2009:
Table 5: Percentage of Closed OI Southwest Border Alien Smuggling
Cases with an Enforcement Consequence, Fiscal Years 2005 through 2009:
Table 6: Number of Aliens Processed through MIRP from June through
August 2005:
Table 7: CBP and DRO Programs That Address Alien Smuggling:
Table 8: Number of Defendants Processed under 8 U.S.C. § 1324 along
the Southwest Border in Fiscal Year 2009:
Table 9: Number of Defendants Convicted and Sentenced under 8 U.S.C. §
1324 along the Southwest Border for Fiscal Year 2009:
Table 10: OI's Coordination Efforts That Involve Alien Smuggling:
Figures:
Figure 1: Alien Smuggling Process through Arizona:
Figure 2: OI Investigator Work Years Spent Addressing Alien Smuggling
on the Southwest Border (Fiscal Years 2005 through 2009):
Figure 3: Percentage of Total Investigative Program Hours Expended by
OI SAC Offices along the Southwest Border (Fiscal Years 2005 through
2009):
Figure 4: Number of Alien Smuggling Cases with Arrests, Indictments,
and Convictions in Southwest Border SAC Locations (Fiscal Years 2005
through 2009):
Figure 5: Dollar Value of Western Union Wire Transfers over $500
Received in Arizona (January 2004 through August 2006):
Figure 6: Number of Defendants Processed under 8 U.S.C. § 1324 in
Southwest Border U.S. Attorney Districts from Fiscal Years 2005
through 2009:
Abbreviations:
ATEP: Alien Transfer Exit Program:
ATM: automated teller machine:
AUSA: Assistant U.S. Attorney:
BEST: Border Enforcement Security Task Forces:
BSA: Bank Secrecy Act:
CBP: U.S. Customs and Border Protection:
CTR: currency transaction report:
DHS: Department of Homeland Security:
DRO: Office of Detention and Removal Operations:
EOUSA: Executive Office for U.S. Attorneys:
FinCEN: Financial Crimes Enforcement Network:
GTO: geographic targeting order:
HSTC: Human Smuggling and Trafficking Center:
ICE: U.S. Immigration and Customs Enforcement:
IEA: immigration enforcement agent:
INS: Immigration and Naturalization Service:
LEAR: Law Enforcement Agency Response:
MIRP: Mexican Interior Repatriation Program:
MOU: memorandum of understanding:
MSB: money services business:
NDIC: National Drug Intelligence Center:
OASSIS: Operation Against Smugglers Initiative on Safety and Security:
OI: Office of Investigations:
OIA: Office of International Affairs:
SAC: special agent-in-charge:
SAR: suspicious activity report:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
May 24, 2010:
The Honorable Bennie G. Thompson:
Chairman:
Committee on Homeland Security:
House of Representatives:
The Honorable Harry Mitchell:
House of Representatives:
Alien smuggling along the southwest border is an increasing threat to
the security of the United States and Mexico as well as to the safety
of both law enforcement and smuggled aliens. One reason for this
increased threat is the involvement of drug trafficking organizations
in alien smuggling. According to the National Drug Intelligence
Center's (NDIC) National Drug Threat Assessment 2008, the southwest
border region is the principal entry point for smuggled aliens from
Mexico, Central America, and South America.[Footnote 1] Aliens from
countries of special interest to the United States such as
Afghanistan, Iran, Iraq, and Pakistan (known as special interest
aliens) also illegally enter the United States through the region.
According to the NDIC assessment, Mexican drug trafficking
organizations have become increasingly involved in alien smuggling.
These organizations collect fees from alien smuggling organizations
for the use of specific smuggling routes, and available reporting
indicates that some Mexican drug trafficking organizations specialize
in smuggling special-interest aliens into the United States. As a
result, these organizations now have alien smuggling as an additional
source of funding to counter U.S. and Mexican government law
enforcement efforts against them.
Violence associated with alien smuggling has also increased in recent
years, particularly in Arizona. According to the NDIC assessment,
expanding border security initiatives and additional U.S. Border
Patrol resources are likely obstructing regularly used smuggling
routes and fueling this increase in violence, particularly violence
directed at law enforcement officers. Alien smugglers and guides are
more likely than in past years to use violence against U.S. law
enforcement officers in order to smuggle groups of aliens across the
southwest border. In July 2009, a border patrol agent was killed while
patrolling the border by aliens illegally crossing the border, the
first shooting death of an agent in more than 10 years. Conflicts are
also emerging among rival alien smuggling organizations. Assaults,
kidnappings, and hostage situations attributed to this conflict are
increasing, particularly in Tucson and Phoenix, Arizona. Communities
across the country are at risk since among those individuals illegally
crossing the border are criminal aliens and gang members who pose
public safety concerns for communities throughout the country.
Within the Department of Homeland Security (DHS), the Office of
Investigations (OI)--part of U.S. Immigration and Customs Enforcement
(ICE)--is responsible for investigating violations of a myriad of
immigration and customs-related laws and is the primary federal agency
responsible for investigating alien smuggling along the southwest
border. In 2005, we reported that the creation of DHS in March 2003
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 and that ICE
officials expected asset seizures to increase.[Footnote 2] Also within
ICE, the Office of Detention and Removal Operations (DRO) is
responsible for detaining aliens who are subject to removal, including
those smuggled into the country, and enforcing their removal from the
United States. The Border Patrol within DHS's U.S. Customs and Border
Protection (CBP) is responsible for interdicting smuggled aliens as
illegal border-crossing attempts are made between the ports of entry.
CBP maintains several programs that address alien smuggling and the
Border Patrol also collaborates with OI in providing information for
alien smuggling investigations obtained during interdictions. The
Department of Justice (Justice) and its 93 U.S. Attorney's offices
located throughout the United States are responsible for prosecuting
individuals charged with violations of federal law, including alien
smuggling. Five U.S. Attorney's offices are located in the southwest
border region.
In light of the increasing threat of alien smuggling along the
southwest border, you asked us to assess DHS's efforts to address
alien smuggling. Thus, this report addresses the following questions:
* Since fiscal year 2005, what has been the trend regarding the amount
of investigative effort OI has devoted to alien smuggling along the
southwest border, what have been the results, and is there an
opportunity for ICE to use its investigative resources more
effectively?
* What progress has DHS made in seizing assets related to alien
smuggling since fiscal year 2005 and what, if any, promising financial
investigative techniques could be applied along the southwest border
to target and seize the monetary assets of smuggling organizations?
* To what extent do ICE/OI and CBP have objectives related to alien
smuggling along the southwest border and to what extent have they
implemented internal controls to measure progress toward these
objectives?
To address these questions, we conducted site visits and interviews
with officials in all four of the OI special agent-in-charge (SAC)
offices along the southwest border: San Diego, Phoenix, El Paso, and
San Antonio.[Footnote 3] We also interviewed officials with six of the
nine Border Patrol sectors along the southwest border--San Diego and
El Centro, California; Yuma and Tucson, Arizona; and El Paso and
Laredo, Texas. The six Border Patrol sectors were selected based on
their proximity to OI SAC offices we visited and their varying volumes
of removable alien apprehensions. While the officials' perspectives
that we obtained from the sectors cannot be generalized to all Border
Patrol officials along the southwest border, they provided us with an
overview of how their enforcement programs operate within and across
sectors. We also interviewed officials in all five U.S. Attorney's
districts along the southwest border.
In addition, to address OI's use of investigative resources, we
analyzed data from fiscal years 2005 (the date of our last report)
through 2009 from TECS, the system OI uses to manage its cases. To
identify possible opportunities for ICE to use its investigative
resources more effectively, we analyzed self-reported investigation
data from OI's case management system from fiscal years 2005 through
2009 to determine the extent to which investigative resources were
spent on OI's main mission of conducting criminal investigations. To
address the results of OI investigations, we analyzed data from
Justice's Executive Office of U.S. Attorneys for the period from
fiscal years 2005 through 2009. To address progress in seizing assets
related to alien smuggling, we analyzed OI and Border Patrol data on
seizures made from fiscal years 2005 through 2009. To determine what,
if any, promising financial investigative techniques could be applied
along the southwest border to target and seize the monetary assets of
smuggling organizations we analyzed the federal interagency 2007
National Money Laundering Strategy and its accompanying 2005 U.S.
Money Laundering Threat Assessment and an OI report on the results of
financial investigations, and interviewed OI officials and Assistant
U.S. Attorneys along the southwest border. In addition, we interviewed
the Arizona Attorney General and officials with the Arizona Attorney
General's Financial Crimes Task Force and analyzed relevant court
affidavits to obtain information on the results of their efforts to
address alien smuggling in Arizona. To address OI's alien smuggling
objectives and internal controls to measure progress toward these
objectives, we analyzed ICE's interim strategic plan and performance
data from fiscal years 2005 through 2009 and Justice sentencing data
on those convicted of alien smuggling from fiscal years 2005 thorough
2009. To address CBP's alien smuggling objectives and internal
controls to measure progress toward these objectives, we analyzed
program documents related to three CBP programs designed to address
alien smuggling, one former CBP program now managed by ICE, CBP data
on program results for various periods from 2005 to 2009, and one
Homeland Security Institute evaluation of one of these programs.
[Footnote 4]
To assess the reliability of data collected by ICE, Justice, and
Border Patrol, we conducted interviews with agency officials about
data integrity procedures and the methods by which data are checked
and reviewed internally for accuracy. We determined that despite
limitations in certain data collection and oversight processes
discussed later in this report, the data recorded in selected data
fields were sufficiently reliable for the purposes of this report. To
assess the reliability of the Homeland Security Institute evaluation,
we reviewed the scope, methodology and findings of the evaluation with
the lead researcher from the institute. We determined that the scope
and methodology of the institute's evaluation were sufficient for us
to rely on for our purposes in this report.
We conducted this performance audit from September 2008 through May
2010 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives. Appendix I
contains more detailed information about our scope and methodology.
Results in Brief:
OI work years devoted to investigating alien smuggling increased from
about 190 work years in fiscal year 2005 to about 197 work years in
fiscal year 2009, an overall increase of 4 percent with hundreds of
arrests, indictments, and convictions resulting, and an opportunity
exists to better leverage resources. The overall number of work years
decreased from about 190 work years in fiscal year 2005 to 174 in
fiscal year 2008, but increased 23 work years from fiscal years 2008
to 2009. DHS's Human Capital Accountability Plan states that DHS is
committed to ensuring that human capital resources are aligned with
mission accomplishments and are deployed efficiently and effectively.
However, in some cases OI investigators are conducting immigration-
related activities that are not consistent with OI's primary mission
of conducting criminal investigations. Officials from two of the four
SAC offices we visited told us that OI has been tasked to respond to
calls from state and local law enforcement agencies to transport and
process apprehended aliens who may be subject to removal. For example,
according to officials in one SAC office, the equivalent of two full-
time investigators each week spent their time responding to non-
investigation-related calls during fiscal year 2009. In 2006, in the
Phoenix metropolitan area, ICE's DRO developed the Law Enforcement
Agency Response (LEAR) program, in which DRO took over responsibility
from OI for transporting and processing apprehended aliens. DRO
processed 3,776 aliens from October 1, 2008, to May 24, 2009, who
otherwise OI would have had to process, thus enabling OI agents to
spend more time on investigations. DRO headquarters officials stated
that they have discussed expanding the LEAR program beyond Phoenix but
have yet to conduct an evaluation to identify the best locations for
expanding the program. By studying the feasibility of expanding the
LEAR program, and expanding the program if feasible, ICE would be in a
better position to help ensure that its resources are more efficiently
directed toward alien smuggling and other priority investigations.
The value of OI alien smuggling asset seizures has decreased since
fiscal year 2005, and two promising financial investigative techniques
exist that could be applied to target and seize the monetary assets of
smuggling organizations, estimated to generate illicit revenues of
billions of dollars annually. According to OI data, the value of alien
smuggling seizures nationwide increased from about $11.2 million in
2005 to about $17.4 million in 2007, but declined to $12.1 million in
fiscal year 2008 and to about $7.6 million in fiscal year 2009. One
opportunity to leverage additional seizure techniques involves civil
asset forfeiture authority, which allows federal authorities to seize
property used to facilitate a crime without first having to convict
the property owner of a crime. OI investigators indicated that lack of
such authority makes it difficult to seize real estate involved in
alien smuggling activity. In 2005, we recommended that the Attorney
General, in collaboration with the Secretary of Homeland Security,
consider submitting to Congress a legislative proposal, with
appropriate justification, for amending the civil forfeiture authority
for alien smuggling. Justice prepared such a proposal and it was
incorporated into several larger bills addressing immigration
enforcement or reform since 2005, but none of these bills had been
enacted into law as of March 2010. According to Justice officials, the
current administration has not yet taken a position on civil asset
forfeiture authority for alien smuggling cases. We continue to believe
it is important for Justice to seek the civil asset forfeiture
authority it has identified as necessary to seize property used to
facilitate alien smuggling. A second opportunity to leverage financial
techniques to disrupt alien smuggling and seize assets involves
assessing the financial investigative techniques used by an Arizona
task force. The task force seized millions of dollars and disrupted
alien smuggling operations by following cash transactions flowing
through money transmitters that serve as the primary method of payment
to those individuals responsible for smuggling aliens. ICE officials
stated that a fuller examination of Arizona's financial investigative
techniques and their potential to be used at the federal level would
be useful. An overall assessment of whether and how these techniques
may be applied in the context of disrupting alien smuggling could help
ensure that ICE is not missing opportunities to take additional
actions and leverage resources to support the common goal of
countering alien smuggling.
OI and CBP have established objectives for their alien smuggling-
related programs, but can do more to better measure progress toward
achieving program objectives. ICE's April 2005 interim strategic plan
states that OI's overall objective is to use its authorities to
identify, locate, disrupt, and prosecute alien smuggling
organizations. CBP and DRO have also defined objectives for their
alien smuggling programs; for example, the objective of the Mexican
Interior Repatriation Program (MIRP) is to remove aliens from the
United States--apprehended during the summer months, generally the
hottest and most dangerous time of year for border crossings--to the
interior of Mexico to deter them from returning in order to reduce
loss of life and to help disrupt alien smuggling operations. However,
ICE and CBP have not fully evaluated progress in meeting alien
smuggling objectives. Federal standards for internal control call for
agencies to establish performance measures and indicators in order to
evaluate the effectiveness of their efforts. Although one of the major
objectives of OI's alien smuggling investigations is to seize
smugglers' assets, OI does not have performance measures for asset
seizures related to alien smuggling cases. Tracking the use of asset
seizures in alien smuggling investigations as a performance measure
could help OI monitor its progress toward its goal of denying
smuggling organizations the profit from criminal acts. In addition,
ICE does not know the effectiveness of MIRP at saving lives or
disrupting alien smuggling operations because it lacks performance
measures for the program. Lack of accurate and consistent data has
limited CBP's ability to evaluate its alien smuggling-related
programs. CBP is in preliminary discussions to establish systematic
program evaluations, but has not established a plan, with time frames,
for their completion. Standard practices in project management for
defining, designing, and executing programs include developing a
program plan to establish an order for executing specific projects
needed to obtain defined results within a specified time frame.
Developing a plan with time frames could help CBP ensure that the
necessary mechanisms are put in place so that it can conduct the
desired program evaluations.
To enhance ICE's ability to address alien smuggling, we are
recommending that the Assistant Secretary for ICE (1) study the
feasibility of expanding the LEAR program, and if found feasible,
expand the program; (2) conduct an assessment of the Arizona Attorney
General's financial investigations strategy to identify any promising
investigative techniques for federal use; (3) develop a performance
measure for asset seizures; and (4) develop performance measures for
MIRP. Further, we are recommending that the Attorney General assess
whether amending the civil asset forfeiture authority remains
necessary, and if so, develop and submit to Congress a legislative
proposal. We are also recommending that the Commissioner of CBP
establish a plan, including performance measures, with time frames,
for evaluating CBP's alien smuggling-related enforcement programs.
DHS stated that department officials concurred with four of five
recommendations directed to DHS and discussed actions planned or under
way to implement them. However, it is not clear to what extent the
actions will fully address the intent of three of the recommendations.
Moreover, DHS stated that it did not concur with the recommendation to
measure the performance of DRO's MIRP because it believes that doing
so would shift its focus away from the program's original lifesaving
intent. However, we continue to believe that developing performance
measures for MIRP is consistent with the memorandum of understanding
(MOU) underlying the program and is necessary to determine whether the
program is meeting its objectives. Justice agreed with our
recommendation to the Attorney General. DHS and the Arizona Attorney
General also provided technical comments, which we considered and
incorporated as appropriate.
Background:
Alien smuggling is the facilitation, transportation, or attempted
transportation of a person, with his or her consent, across an
international border, in violation of one or more countries' laws.
Often, alien smuggling is conducted in order to obtain a financial or
other material benefit for the smuggler. The alien smuggling process
from Mexico into the United States along the southwest border using
the services of a smuggling organization is generally the same
regardless of entry point. For instance, when individuals travel to
populated areas in Mexico just south of the border, a smuggler
representative will market smuggling services in that populated area,
and then the individuals will be moved across the international border
in some fashion (such as crossing a desert area or the Rio Grande
river), usually with a group of other smuggled aliens. Once across the
border, the smuggled aliens typically will be moved to a "stash house"
where they arrange for payment. In general, smuggled aliens do not
carry large amounts of cash when crossing the border for fear of being
robbed. For many smuggled aliens their final destination is a city in
the interior of the United States. To pay for their crossing these
smuggled aliens have arranged in advance for a family member or
friend, called a "sponsor," in the interior city to send the payment
to the smuggler, most commonly via a wire transfer company. Once
payment is received, the aliens are moved to their final destination
by the smuggling organization. Figure 1 illustrates how the alien
smuggling process works for those aliens smuggled through Arizona.
Figure 1: Alien Smuggling Process through Arizona:
[Refer to PDF for image: illustrated maps]
A U.S. map and an inset map of the Southwest border depict the alien
smuggling process through Arizona:
In Mexico:
Smuggling Organizations: Culiacan and Mazatlan;
gather aliens;
travel to another organization: Caborca;
with the aid of a smuggling guide:
travel to safe houses in Phoenix.
From Arizona:
Travel routes go to and sponsor payments come from the following areas:
California;
Florida;
Georgia;
Illinois;
New Jersey;
New York;
North Carolina;
Pennsylvania;
Texas;
Washington.
Sources: GAO (analysis);Map Resources (map); law enforcement views,
court affidavits (data).
[End of figure]
Department of Homeland Security Components That Address Alien
Smuggling along the Southwest Border:
DHS ICE is responsible for investigating alien smuggling as well as
detaining and removing aliens who are subject to removal from the
United States. ICE focuses on enforcement of immigration and customs
laws within the United States, and its mission is to detect and
prevent terrorist and criminal acts by targeting the people, money,
and materials that support terrorists and criminal networks. OI, among
other things, is responsible for investigating alien smuggling
violations at the border and beyond. In fiscal year 2010, OI had a
budget of about $1.7 billion and as of November 2009 had a staff of
about 8,600, which includes investigators and support staff
responsible for all of OI's investigative areas nationwide. The types
of alien smuggling cases handled by OI can range from reactive cases,
resulting from a particular incident or referrals from other law
enforcement agencies, to proactive cases, resulting from intelligence
gathering or use of financial investigative techniques. According to
OI officials we interviewed, the majority of OI's alien smuggling
investigations are reactive cases initiated based on referrals from
the Border Patrol or local law enforcement as a result of alien
smuggling interdictions made by these agencies. Responding to these
referrals leaves less investigative resources to initiate proactive
investigations. In addition, investigations can vary in their
complexity. For instance, some cases do not require extensive
investigation and investigation is limited to prosecuting the alien
smuggler caught in the act of smuggling aliens. Conversely, a recent
investigation conducted by OI in El Paso led to the indictment of a
hotel owner who devised a plan to smuggle hundreds of aliens into the
country from Mexico and harbor them using his hotel and other
locations until their families or "sponsors" paid a fee, usually
through a wire transfer company such as Western Union or MoneyGram.
This investigation took over 5 years and required the assistance of
various federal and state agencies as well as private businesses.
Also within ICE, DRO is responsible for detaining aliens who are
subject to removal, including those smuggled into the country, and
enforcing their removal from the United States. DRO's mission is to
ensure the departure of all removable aliens from the United States
through enforcement of the nation's immigration laws. In fiscal year
2010, DRO had a budget of about $2.6 billion and as of November 2009
had a staff of about 7,000.
With the aid of CBP's Office of Border Patrol and ICE's Office of
International Affairs (OIA), DRO operates and funds MIRP, which the
former Immigration and Naturalization Service (INS) began in 1996 in
Southern California. MIRP was operated and funded by CBP in fiscal
years 2004 and 2005. MIRP is a coordinated humanitarian effort between
the governments of Mexico and the United States to return removable
aliens who are citizens of Mexico further into the interior of Mexico
in hopes of deterring them from again attempting illegal entry into
the United States. As a voluntary humanitarian program with no
prosecutorial consequence, candidates for MIRP include those who are
identified as "high risk" when crossing the border illegally, such as
women and children and the elderly or infirm, as these populations are
particularly vulnerable to heat or risk of victimization by criminals
operating in border regions. Aliens convicted of violent crimes are
ineligible to participate in MIRP.
Within CBP, the Border Patrol is responsible for the enforcement of
federal immigration laws between official ports of entry.[Footnote 5]
CBP's National Border Patrol Strategy outlines two goals in regard to
alien smuggling: (1) deter illegal entries through improved
enforcement and (2) detect, apprehend, and deter smugglers of humans
and drugs and other contraband. In fiscal year 2010, the Border
Patrol's budget was about $3.6 billion, and as of November 2009, the
Border Patrol had about 20,000 agents nationwide with about 17,000
agents deployed along the southwest border.
In order to deter aliens from repeatedly crossing the border illegally
and to deter alien smuggling, CBP implemented a number of enforcement
programs from 2004 through 2008. CBP has two prosecutorial enforcement
programs--Operation Against Smugglers Initiative on Safety and
Security (OASISS) and Operation Streamline. The OASISS program,
implemented in August 2005, is a bilateral agreement between Mexico
and the United States that allows CBP to transfer selected alien
smugglers that a U.S. Attorney's office has declined to prosecute to
Mexico for prosecution. Operation Streamline, started in December
2005, prosecutes selected aliens apprehended by the Border Patrol for
illegal entry under federal law. Those convicted face up to 180 days
of incarceration.
Another enforcement program the Border Patrol operates is the Alien
Transfer Exit Program (ATEP) in which removable aliens are bused from
their original apprehension location to another Border Patrol location
for removal. ATEP is designed to disrupt the ability of alien
smuggling organizations to operate by deterring aliens from repeatedly
crossing the border illegally and from seeking the assistance of
smuggling organizations. Under ATEP, removable aliens must meet
certain criteria in order to participate in the program. For example,
an alien must be a male from the ages of 20 to 60 with no medical
conditions or criminal history. Appendix II provides additional
information regarding CBP's and DRO's alien smuggling-related
enforcement programs.
Other Federal Agencies Involved in Combating Alien Smuggling along the
Southwest Border:
Outside of DHS, Justice and the Department of the Treasury (Treasury)
play significant roles in addressing alien smuggling. In particular,
Justice's U.S. Attorney's offices collaborate with OI during the
course of alien smuggling investigations by obtaining grand jury
subpoenas, warrants, and wire taps. If an alien smuggling case meets
certain thresholds established by the relevant U.S. Attorney, such as
a minimum number of aliens smuggled, the U.S. Attorney is to
ultimately prosecute the case. Of the 93 U.S. Attorneys stationed
throughout the United States and its territories, those in the five
southwest border districts prosecuted 85 percent of all alien
smuggling cases nationwide in fiscal year 2009.[Footnote 6] Within
Treasury, the Financial Crimes Enforcement Network (FinCEN) serves as
a central resource for financial intelligence information and analysis
that law enforcement agencies use to conduct alien smuggling
investigations. FinCEN administers the largest financial transaction
reporting system in the world, which is based on reporting
requirements mandated or authorized under the Bank Secrecy Act (BSA).
[Footnote 7] OI has access to BSA data for its alien smuggling
investigations through a database maintained by FinCEN. OI
investigators can use this database to trace financial transactions
associated with a suspected alien smuggler to assist in determining
the identity of other individuals involved in alien smuggling and to
locate funds that could be subject to seizure if tied to alien
smuggling.
In 2004, the Intelligence Reform and Terrorism Prevention Act
established the Human Smuggling and Trafficking Center (HSTC) in order
to achieve greater integration and overall effectiveness in the U.S.
government's law enforcement efforts, and to work with other nations
to address the issues of alien smuggling and human trafficking.
[Footnote 8] According to its charter, the center's role is supportive
rather than directive in nature and consists 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. HSTC is guided by
a steering group comprising senior representatives from DHS, Justice,
and the Department of State and relies on full-time detailees from its
participating departments to function. HSTC is housed within the
Department of State and is currently managed by ICE officials.
Federal Laws Applied in Alien Smuggling Prosecutions:
To prosecute alien smugglers, federal officials generally use section
274 of the Immigration and Nationality Act, which is codified and most
frequently referred to by federal law enforcement as 8 U.S.C. § 1324.
This statute provides criminal penalties for several types of conduct
related to alien smuggling, including bringing an unauthorized alien
into the United States in any manner whatsoever; bringing an alien
into the United States at a place other than a port of entry,
regardless of whether the alien has received prior authorization to
enter the country; domestic transport of an alien who has entered or
remains in the United States in violation of law, in furtherance of
such violation; concealing or harboring such an alien; and encouraging
or inducing an alien to enter or reside in the United States in
violation of law. To convict a defendant under 8 U.S.C. § 1324, there
generally must be proof that the defendant knew or recklessly
disregarded that the alien had not received prior authorization to
enter the United States or had entered or remained in the country
illegally.[Footnote 9]
Other federal statutes used to prosecute alien smuggling cases are 8
U.S.C. § 1325, which provides penalties for, among other things,
entering or attempting to enter the United States illegally, and 8
U.S.C. § 1326, which penalizes reentry into the United States after a
denial of admission, removal, or departure while subject to an order
of removal. Additional federal statutes that can be used in alien
smuggling-related cases are outlined in table 1.
Table 1: Additional Federal Laws Used to Prosecute Alien Smuggling
Cases:
Statute: 18 U.S.C. § 1543;
Title: Forgery or false use of passport;
Examples of prohibited conduct: Counterfeiting or altering a passport,
as well as using or attempting to use such a passport.
Statute: 18 U.S.C. § 1544;
Title: Misuse of passport;
Examples of prohibited conduct: Use of someone else's passport or
providing a passport for use by someone other than the person to whom
it was issued.
Statute: 18 U.S.C. § 1546;
Title: Fraud and misuse of visas, permits, and other documents;
Examples of prohibited conduct: Forging or altering immigration
documents; obtaining, possessing, or using such documents;
possessing or selling materials to forge or alter documents;
and making a false statement or impersonating someone else when
applying for an immigration document or for admission to the United
States.
Statute: 18 U.S.C. §§ 1956 and 1957;
Title: Money laundering;
Examples of prohibited conduct: Conducting a transaction involving, or
transmitting into or out of the United States, proceeds of unlawful
activity with the intent to promote the unlawful activity, conceal the
source or owner of the proceeds, or avoid a transaction reporting
requirement.
Statute: 18 U.S.C. § 1028;
Title: Fraud and related activity in connection with identification
documents, authentication features, and information;
Examples of prohibited conduct: Knowingly and without lawful authority
producing an identification document, authentication feature (such as
a hologram or watermark), or false identification document;
knowingly transferring such a document or feature knowing it was
stolen or produced illegally; and knowingly possessing five or more
such documents or features with the intent to use or transfer them
unlawfully.
Statute: 18 U.S.C. § 201;
Title: Bribery of public officials;
Examples of prohibited conduct: Corruptly giving or promising anything
of value to a U.S. government official to influence an official act or
to induce the official to violate his or her lawful duty or to defraud
the United States; also prohibits U.S. government officials from
seeking or receiving anything of value in similar circumstances.
Statute: 18 U.S.C. § 1962;
Title: Racketeering activity;
Examples of prohibited conduct: Using income derived from racketeering
activity or collection of an unlawful debt for any enterprise engaged
in or affecting interstate or foreign commerce;
controlling or maintaining an interest in such an enterprise through
racketeering activity or collection of an unlawful debt. "Racketeering
activity" includes, among other things, alien smuggling;
bribery; money laundering; and fraud in relation to and misuse of
passports, immigration documents, and identification documents.
Statute: 18 U.S.C. § 2;
Title: Principals (aiding and abetting);
Examples of prohibited conduct: Makes anyone who aids and abets an
offense against the United States subject to the same punishment as
the principal offender.
Source: GAO, based on discussions with federal officials and review of
statutes.
[End of table]
The maximum penalties outlined in 8 U.S.C. § 1324 generally include a
1-, 5-, or 10-year prison sentence for each alien in regard to whom a
violation occurred and depend on the nature of the offense. The 1-year
statutory maximum only applies to cases where the defendant's purpose
in bringing an unauthorized alien to the United States was not for
commercial advantage or private financial gain and the unauthorized
alien was immediately presented to an immigration officer at a port of
entry after being brought into the country. Otherwise, there is a
mandatory minimum penalty of 3 years per alien under certain
circumstances and a maximum penalty of 10 years per unauthorized alien
brought into the country.[Footnote 10] Domestic transportation,
harboring, encouraging or inducing, or aiding or abetting unauthorized
aliens incurs a maximum of 5 years per alien, unless the offense was
committed for commercial advantage or private financial gain, in which
case the maximum is 10 years per alien. Bringing an alien (whether
authorized or not) into the United States in any place other than a
port of entry is punishable by up to 10 years imprisonment per alien.
[Footnote 11] Appendix III contains more detail on the disposition of
alien smuggling cases along the southwest border.
Use of State Law to Combat Alien Smuggling in Southwest Border States:
Arizona, the only southwest border state with an alien smuggling law,
enacted a statute in 2005 that prohibits intentionally engaging in the
smuggling of human beings for profit or commercial purpose.[Footnote
12] The statute defines the smuggling of human beings to include
transporting, procuring transportation, or using property or real
property, knowing or having reason to know that the individual
transported or to be transported is not a U.S. citizen, permanent
resident alien, or person otherwise lawfully in the state of Arizona.
Arizona courts have also interpreted this provision in conjunction
with Arizona's conspiracy statute to allow prosecution of smuggled
aliens for conspiracy to commit human smuggling. A violation of the
Arizona statute is a felony, punishable by a minimum of 1 to 3.75
years in prison, with significantly higher sentencing ranges for
dangerous conduct or repeat offenses. Passage by the Arizona state
legislature of an alien smuggling law occurred in the context of
heightened violence in Arizona associated with alien smuggling. For
example, alien smugglers engaged in a shootout on an Arizona
Interstate highway in 2003 in which four people were killed and five
were wounded. One set of smugglers was attempting to steal the other
smugglers' cargo of undocumented aliens, resulting in the gun battle.
In Texas, state and federal law enforcement are using existing Texas
transportation law to revoke the licenses of truck drivers who are
caught committing a felony, including alien smuggling, while driving
any motor vehicle, including a commercial vehicle. Under the Texas
Commercial Driver's License Act, the first felony conviction leads to
a 1-year suspension of a commercial driver's license, with lifetime
suspensions if convicted two or more times of committing a felony (or
if convicted of multiple felonies arising from two or more separate
incidents). In addition, lifetime suspensions apply to first instances
of using a motor vehicle to commit an offense under 8 U.S.C. § 1324
that involves the transportation, concealment, or harboring of an
alien. The Border Patrol in Laredo and the Texas Department of Public
Safety established a joint initiative based on this state
transportation statute, which includes a media campaign and public
outreach to proactively inform commercial truck drivers of the legal
consequences if caught smuggling aliens.
OI Work Years Spent Investigating Alien Smuggling Recently Increased;
Opportunity Exists to Better Leverage Resources:
Along the southwest border, OI work years devoted to investigating
alien smuggling increased from about 190 work years in fiscal year
2005 to about 197 work years in fiscal year 2009, an overall increase
of 4 percent.[Footnote 13] As shown in figure 2, the overall number of
work years decreased from about 190 work years in fiscal year 2005 to
174 in fiscal year 2008, but increased by 23 work years from 2008 to
2009. This net increase was the result of an increase of 39 work years
in Arizona and a corresponding decrease of 16 work years devoted to
alien smuggling by the other three SAC offices. According to the
Arizona SAC, a large number of investigators were detailed to Arizona
in 2009 to deal with an ongoing investigation. The work years OI
devoted to investigating all types of immigration and customs
violations along the southwest border have also increased since fiscal
year 2005. For fiscal years 2005 to 2009, the total number of
investigative work years for all investigations increased from about
1,122 work years to about 1,190 work years, an increase of about 6
percent.
Figure 2: OI Investigator Work Years Spent Addressing Alien Smuggling
on the Southwest Border (Fiscal Years 2005 through 2009):
[Refer to PDF for image: vertical bar graph]
Fiscal year: 2005;
Work years: 190.
Fiscal year: 2006;
Work years: 169.
Fiscal year: 2007;
Work years: 174.
Fiscal year: 2008;
Work years: 174.
Fiscal year: 2009;
Work years: 197.
Source: GAO analysis of OI TECS data.
[End of figure]
From fiscal years 2005 through 2009 the proportion of all reported
investigative hours spent on alien smuggling relative to all other
reported investigative areas along the southwest border remained
relatively constant, ranging from an average of 16 percent to 17
percent, as shown in figure 3. During these same fiscal years, OI
reports working about 42 percent of its total investigative hours on
drug smuggling. The remaining proportion of hours were divided among
14 other program areas OI investigates, such as enforcing immigration
laws in workplaces.
Figure 3: Percentage of Total Investigative Program Hours Expended by
OI SAC Offices along the Southwest Border (Fiscal Years 2005 through
2009):
[Refer to PDF for image: stacked vertical bar graph]
Fiscal year: 2005;
Percentage of drug smuggling: 42%;
Percentage of alien smuggling: 17%;
Percentage of all other investigative categories: 41%.
Fiscal year: 2006;
Percentage of drug smuggling: 43%;
Percentage of alien smuggling: 16%;
Percentage of all other investigative categories: 41%.
Fiscal year: 2007;
Percentage of drug smuggling: 43%;
Percentage of alien smuggling: 16%;
Percentage of all other investigative categories: 41%.
Fiscal year: 2008;
Percentage of drug smuggling: 41%;
Percentage of alien smuggling: 16%;
Percentage of all other investigative categories: 43%.
Fiscal year: 2009;
Percentage of drug smuggling: 40%;
Percentage of alien smuggling: 17%;
Percentage of all other investigative categories: 43%.
Source: GAO analysis of OI TECS self-reported investigation data.
Note: In fiscal years 2008 and 2009, data for two additional
investigative areas (cybercrimes and gangs) were added to TECS. These
additions caused "all other investigative areas" section of the graph
to increase slightly. The "all other investigative areas" section
includes financial, general and criminal alien, strategic, general
smuggling, commercial fraud, counterterrorism, human trafficking,
worksite enforcement, identity and benefit fraud, child pornography,
cybercrimes, gangs, and miscellaneous administrative duties.
[End of figure]
SAC offices along the southwest border account for nearly half of OI
hours spent on alien smuggling nationwide. From fiscal year 2005
through fiscal year 2009, the four SAC offices along the southwest
border accounted for, on average, 43 percent of all alien smuggling
hours nationwide.
OI investigations resulted in hundreds of arrests, indictments, and
convictions each year from fiscal year 2005 through fiscal year 2009.
As shown in figure 4, the results varied by SAC office. For example,
in the El Paso office arrests, indictments, and convictions increased
from fiscal years 2005 through 2007 but then decreased in fiscal years
2008 and 2009. In Phoenix, arrests, indictments, and convictions
fluctuated greatly during this period for all categories. For example,
in fiscal year 2006, 188 cases resulted in criminal arrests; however,
that number increased to 339 cases resulting in arrests in fiscal year
2009. In addition, convictions decreased by 34 percent from fiscal
years 2005 through 2009. In San Antonio arrests, indictments, and
convictions all increased from 2005 through 2008, but indictments and
convictions decreased slightly in 2009. In San Diego, convictions went
from 37 in fiscal year 2005 to 57 in fiscal year 2007 to 107 in fiscal
year 2009.
Figure 4: Number of Alien Smuggling Cases with Arrests, Indictments,
and Convictions in Southwest Border SAC Locations (Fiscal Years 2005
through 2009):
[Refer to PDF for image: 4 vertical bar graphs]
Location: El Paso:
Arrests:
FY 2005: 250;
FY 2006: 234;
FY 2007: 266;
FY 2008: 209;
FY 2009: 154.
Indictments:
FY 2005: 219;
FY 2006: 248;
FY 2007: 245;
FY 2008: 168;
FY 2009: 123.
Convictions:
FY 2005: 223;
FY 2006: 253;
FY 2007: 278;
FY 2008: 202;
FY 2009: 122.
Location: Phoenix:
Arrests:
FY 2005: 248;
FY 2006: 188;
FY 2007: 257;
FY 2008: 277;
FY 2009: 339.
Indictments:
FY 2005: 213;
FY 2006: 163;
FY 2007: 175;
FY 2008: 103;
FY 2009: 124.
Convictions:
FY 2005: 253;
FY 2006: 191;
FY 2007: 138;
FY 2008: 176;
FY 2009: 168.
Location: San Antonio:
Arrests:
FY 2005: 216;
FY 2006: 258;
FY 2007: 290;
FY 2008: 368;
FY 2009: 372.
Indictments:
FY 2005: 185;
FY 2006: 240;
FY 2007: 266;
FY 2008: 295;
FY 2009: 277.
Convictions:
FY 2005: 194;
FY 2006: 223;
FY 2007: 246;
FY 2008: 287;
FY 2009: 264.
Location: San Diego:
Arrests:
FY 2005: 98;
FY 2006: 48;
FY 2007: 81;
FY 2008: 135;
FY 2009: 151.
Indictments:
FY 2005: 23;
FY 2006: 54;
FY 2007: 56;
FY 2008: 82;
FY 2009: 80.
Convictions:
FY 2005: 37;
FY 2006: 41;
FY 2007: 57;
FY 2008: 64;
FY 2009: 107.
Source: GAO analysis of OI TECS self-reported investigation data.
[End of figure]
According to a 2008 ICE report, the increase in CBP border patrol
agents and field operations officers along the southwest border has
increased the number of CBP investigative referrals.[Footnote 14]
According to the report, the number of OI agents decreased from fiscal
years 2004 through 2007, straining OI's ability to respond to the
increasing number of referrals. As a result, all southwest border SAC
offices, where alien smuggling is the second highest resource-
intensive investigative area, relied on overtime to meet workload
demands, which is supposed to be limited to 480 hours of overtime per
agent per year. According to the report, in fiscal year 2007, all of
the southwest border SACs reported agents working more than 480 hours
of overtime per year. For example, OI investigators in the San Diego
SAC office worked on average 640 hours of overtime in fiscal year
2007, 160 hours over the 480-hour limit.
DHS and our previous work have recognized the importance of
implementing human capital policies in order for an organization to be
effective at addressing its mission and programmatic goals.[Footnote
15] According to DHS's Human Capital Accountability Plan, DHS is
committed to ensuring that human capital resources are aligned with
mission accomplishments and are deployed efficiently and effectively.
In addition, GAO's Standards for Internal Control in the Federal
Government states that effective management of an organization's
workforce--its human capital--is essential to achieving results and
ensuring that workforce skills match organizational objectives.
[Footnote 16]
Although OI has reported that its investigative resources are
strained, in some cases OI investigators are conducting immigration-
related activities that are not consistent with OI's primary mission
of conducting criminal investigations or the job description of a
criminal investigator.[Footnote 17] Officials from two of the four SAC
offices we visited (San Antonio and El Paso) told us that OI has been
tasked to respond to calls from state and local law enforcement
agencies that have apprehended aliens who may be subject to removal, a
task that is not aligned with its main mission of conducting criminal
investigations.[Footnote 18] These responses result in little or no
investigative work and instead involve transporting and processing
aliens for possible removal. According to ICE, OI is the lead unit for
responding to local police calls regarding aliens who may be subject
to removal. Prior to 2003, the former INS was responsible for
responding to local police calls for assistance related to encounters
with aliens.[Footnote 19] With the creation of ICE and the formation
of OI and DRO in 2003, the responsibility of responding to such calls
fell upon OI investigators, as this duty carried over with them from
INS. According to ICE officials, OI has continued to perform this
function.
The amount of time spent on the non-investigation-related calls by the
two offices varied. OI officials reported that in the San Antonio SAC
office, investigators spent approximately the hours of the equivalent
of two full-time investigators each week responding to non-
investigation-related calls from different police departments during
fiscal year 2009. For the El Paso SAC office, OI officials estimated
spending 17 staff hours per week responding to an average of 20 calls
per week from local police departments that are noninvestigative in
nature. Officials in the two offices stated that responding to
noninvestigative calls from local police departments left less time
available for investigators to focus on investigations of alien
smuggling and other customs and immigration-related crimes. According
to OI officials, to respond to a noninvestigative police call,
investigators need to travel to the location where the aliens are
being detained, which could involve traveling to locations that are
several hours away. OI investigators need to then transport the aliens
back to their office and prepare the paperwork related to the aliens'
arrest and removal, which in some cases can take up to 4 hours per
alien.
ICE's DRO is the DHS component primarily responsible for removing
aliens who are subject to removal and has positions for both
deportation officers and immigration enforcement agents that are
commensurate with this responsibility. In 2006, to respond to
immigration-related calls for assistance from state and local law
enforcement agencies in the Phoenix metropolitan area, DRO developed
the LEAR program. OI was previously the primary ICE office providing
assistance to state and local law enforcement agencies in the Phoenix
area. From October 1, 2008, to May 24, 2009, the LEAR program
processed 3,776 aliens, aliens who OI would have had to process in the
absence of the LEAR program.
According to the Phoenix SAC, the LEAR program has been highly
successful. For example, the program has allowed his office to focus
more agents and technical resources on the proactive investigation of
alien smuggling cases rather than responding to local police calls.
According to TECS's self-reported investigation data, Phoenix
increased the amount of work hours on alien smuggling by 11 percent
from fiscal year 2007 to fiscal year 2008, the period subsequent to
the implementation of the LEAR program.
According to DRO officials, the LEAR program is highly successful in
the Phoenix region because it offers local law enforcement agencies a
mechanism for an immediate federal response for handling aliens who
may be subject to removal. DRO headquarters officials stated that they
have discussed expanding the LEAR program beyond Phoenix but have yet
to conduct an evaluation to identify the best locations for expanding
the program. By studying the feasibility of expanding the LEAR
program, and expanding the program if feasible, ICE would be in a
better position to evaluate alternatives for aligning staff
responsibilities to its subcomponent agency missions and helping
ensure that its resources are more efficiently directed toward alien
smuggling and other priority investigations. According to ICE
headquarters officials, OI investigators in the Southwest would likely
work on more alien smuggling cases if the LEAR program expanded beyond
the Phoenix area since alien smuggling is the second most worked
investigative area in all four southwestern SAC locations. DRO
officials estimate the cost of a LEAR program unit to be $7 million
per year for a fully staffed unit in one metropolitan area.
In addition to its own investigations, OI has taken steps over the
last 4 years to participate in or develop coordination efforts,
working groups, or task forces that address alien smuggling. These
activities have been primarily focused on regional border activities
where OI has historically encountered the greatest proportion of alien
smuggling violations. Appendix IV contains more detail on these
coordination efforts.
Alien Smuggling Asset Seizures Have Decreased since 2005;
Opportunities Exist to Leverage Additional Financial Investigative and
Seizure Techniques:
The Value of OI Alien Smuggling Asset Seizures Has Decreased since
2005:
In 2005 we reported that OI and Treasury's Executive Office for Asset
Forfeiture anticipated that in fiscal year 2005 and in future years
alien smuggling investigations would result in increasing volumes of
asset seizures as OI applied its financial and money laundering
expertise, which it acquired when elements of legacy INS components
and U.S. Customs merged to form OI in 2003.[Footnote 20],[Footnote 21]
For alien smuggling asset seizures, OI collaborates with U.S.
Attorney's office officials, who are responsible for litigating any
contested seizures and CBP, as the agency responsible for processing
seizures. According to data provided by OI, and shown in table 2, the
value of alien smuggling seizures nationwide increased from about
$11.2 million in fiscal year 2005 to $17.4 million in fiscal year
2007, but declined to $7.6 million in fiscal year 2009. According to
ICE, alien smuggling generates illicit revenues estimated to reach
billions of dollars annually.[Footnote 22] Seizures of currency; means
of transporting smuggled aliens, such as automobiles and boats; and
real estate make up the bulk of OI's asset seizures. The remainder of
seizures is made up of drugs, counterfeit goods, weapons, and other
items, such as computers.
Table 2: OI Alien Smuggling Assets Seized in Fiscal Years 2005 through
2009 Nationwide (Dollars in thousands):
Fiscal year: 2005;
Value of currency seized: $4,197;
Value of vehicles seized: $3,433;
Value of vessels (e.g., boats) seized: $2,427;
Value of real estate seized: $691;
Total value of currency, vehicles, and real estate seized: $10,748;
Value of all assets seized: $11,212;
Value of currency, vehicle, vessel and real estate seized as a
percentage of total assets seized: 96%.
Fiscal year: 2006;
Value of currency seized: $3,720;
Value of vehicles seized: $3,710;
Value of vessels (e.g., boats) seized: $2,055;
Value of real estate seized: $4,034;
Total value of currency, vehicles, and real estate seized: $13,519;
Value of all assets seized: $14,220;
Value of currency, vehicle, vessel and real estate seized as a
percentage of total assets seized: 95%.
Fiscal year: 2007;
Value of currency seized: $3,432;
Value of vehicles seized: $5,957;
Value of vessels (e.g., boats) seized: $4,118;
Value of real estate seized: $3,433;
Total value of currency, vehicles, and real estate seized: $16,940;
Value of all assets seized: $17,396;
Value of currency, vehicle, vessel and real estate seized as a
percentage of total assets seized: 97%.
Fiscal year: 2008;
Value of currency seized: $1,836;
Value of vehicles seized: $5,275;
Value of vessels (e.g., boats) seized: $3,618;
Value of real estate seized: $818;
Total value of currency, vehicles, and real estate seized: $11,547;
Value of all assets seized: $12,169;
Value of currency, vehicle, vessel and real estate seized as a
percentage of total assets seized: 95%.
Fiscal year: 2009;
Value of currency seized: $1,679;
Value of vehicles seized: $3,280;
Value of vessels (e.g., boats) seized: $2,013;
Value of real estate seized: $140;
Total value of currency, vehicles, and real estate seized: $7,112;
Value of all assets seized: $7,613;
Value of currency, vehicle, vessel and real estate seized as a
percentage of total assets seized: 93%.
Source: GAO analysis of OI data.
Note: Values have been adjusted to account for inflation.
[End of table]
OI officials attributed the decline in alien smuggling asset seizures
from fiscal years 2007 through 2009 to several factors. First, the
declining real estate market throughout the United States has made
homes used as stash houses for smuggled aliens less attractive for
seizure because the homes generally have little or no equity
available. Second, enhanced border security during this period,
according to OI officials, and a corresponding decrease in alien
smuggling activity, may also have led to a decline in assets seized.
For example, the amount of currency seized by OI may be affected if
increased enforcement on the border results in a larger percentage of
alien smuggling loads being interdicted before making their way to the
interior of the United States. These interdictions reduce criminal
alien smuggling proceeds subject to seizure because the smuggled alien
has not had the opportunity to pay the smuggler before being
apprehended. Third, OI officials also cite the declining U.S. economy
as leading to a general decline in alien smuggling activity. According
to the officials, most smuggled aliens are drawn to the United States
for economic reasons. The lack of opportunity for employment during
this period may have affected the decision of aliens to illegally
enter the United States using the services of alien smuggling
organizations.
According to OI officials in all four SAC offices we visited, OI had
increased its efforts to identify and seize assets related to alien
smuggling. Each of the four SAC offices had an asset forfeiture unit
that supported OI investigations, including alien smuggling
investigations. This unit, for example, reviews financial data such as
bank records that OI investigators obtain through a subpoena, to
identify potential assets, such as bank accounts, vehicles, or real
estate, that can be seized and also to identify other individuals who
may be involved in the alien smuggling organization. According to ICE
headquarters officials, all OI investigators receive basic training on
financial investigative techniques, which includes the various
resources that are available to investigators. All OI investigators
also have access via their computers to financial information
available through a FinCEN financial transactions database. According
to FinCEN officials, the database allows OI investigators to directly
query BSA data such as suspicious activity reports (SAR) and currency
transaction reports (CTR). FinCEN officials stated that the BSA data
housed in this database represent millions of financial transactions
from banks, money transmitters, insurance companies, and other
industries that report information to FinCEN.
FinCEN also provides financial analyses upon request by law
enforcement agencies, including OI. These analyses provide FinCEN's
evaluation of financial records that span various types of financial
institutions and can connect multiple individuals with illicit
transactions. Approximately 60 such analysis requests were made of
FinCEN by OI investigators related to alien smuggling cases from
August 2004 to April 2009. FinCEN also acts as a liaison between
domestic law enforcement agencies that make requests for financial
information from abroad and foreign entities that maintain financial
information. According to OI officials, OI investigators do not
extensively rely upon FinCEN for this service because the process can
take 45-to 60 days before financial information is returned to the
investigator subsequent to the initial request. According to FinCEN
officials, this 45 to 60-day time period is due to the time it takes
for foreign financial entities to respond, which is beyond FinCEN's
control. Instead, OI investigators rely upon ICE's OIA attachés,
stationed in most foreign countries, who are able to retrieve
financial information needed for investigations within several days.
[Footnote 23]
In addition to using financial information to track and seize assets,
OI investigators can use financial information to help convict someone
under those provisions of the alien smuggling statute that carry
higher penalties. When prosecuting an alien smuggling case, evidence
that the suspected smuggler was engaging in the activity for financial
gain is necessary in order to obtain enhanced penalties for alien
smuggling convictions. Such financial information helps connect an
alleged smuggler with the crime of smuggling and also can support
enhanced penalties should the smuggler be convicted.
OI investigators we interviewed reported that they rely upon a variety
of information sources when tracking financial information associated
with alien smuggling, ranging in level of sophistication. One
investigator described how documents, such as transaction slips from a
bank or wire transfer company that demonstrate that a smuggler
received payment for smuggling services, can be among the most
successful pieces of financial evidence used against smugglers. The
investigator also described logs that list smuggled alien names and
payment amounts, often found in stash houses, as strong financial
evidence to use against alien smugglers. Financial analysis, whereby
OI analysts evaluate smugglers' incomes and expenses and are able to
identify illicit funds (usually in the form of unexplained income), is
also a useful technique, according to another investigator. An
investigator working in another southwest border office stated that
tracking multiple money service bank transactions to one smuggler's
identity is often the strongest type of evidence that the investigator
can provide for an alien smuggling prosecution. Other investigators we
interviewed stated that much of this information is gathered through
the use of subpoenas, obtained by the U.S. Attorney's offices. Table 3
summarizes several OI alien smuggling investigations.
Table 3: Examples of OI Alien Smuggling Financial Investigations:
According to court documents and OI investigators and Assistant U.S.
Attorneys (AUSA) we interviewed, in June 2009, El Paso OI
investigators arrested 25 individuals on alien smuggling and other
charges. Prior to their arrests, a federal grand jury in El Paso
returned a 51-count indictment against the individuals, which included
a $1 million monetary judgment against the owner of a hotel as well as
criminal forfeiture to the government of the hotel. According to AUSAs
we interviewed in El Paso, through repeated arrests at the hotel of
known alien smugglers OI investigators were able to develop a case
against the individuals that was also based upon subpoenaed hotel
financial information, including bank statements, tax records, and
accounting records. Through review of the hotel's financial data, OI
investigators were able to determine that the owner was structuring
his deposits into his bank accounts to avoid the $10,000 BSA reporting
requirement. By collaborating with Western Union and MoneyGram, OI
investigators were also able to link smuggling payments that were made
by sponsors of smuggled aliens to hotel bank deposits. Tracking these
funds allowed OI to determine where the funds were coming from and
going to in order to ultimately identify the key participants in the
smuggling organization. While the investigation resulted in numerous
arrests and indictments, AUSAs we interviewed indicated that the case
took over 4 years to compile.
According to an OI press release and OI investigators we interviewed,
San Diego OI investigators were able to dismantle an entire alien
smuggling network in 2008, including the financial scheme the
smugglers relied on to make their illicit profits. The defendants
allegedly made arrangements to have the aliens brought to the United
States through the southwest border from Mexico. The defendants
allegedly sheltered the smuggled aliens in a two-bedroom house near
San Diego before the sponsors wired money to various members of the
alien smuggling organization to pay the alien smuggling fees. The
indictment also alleges that defendants instructed the sponsors of the
smuggled aliens to break down the smuggling fees and send wire
transfers in small amounts to multiple recipients. The indictment
charges that the defendants filed materially false U.S. Individual
Income Tax Returns (Forms 1040) for multiple tax years. To obtain
evidence of these activities, OI investigators reviewed subpoenaed
bank financial records and income tax statements to identify illicit
income tied to alien smuggling activities.
According to an ICE report on the use of SARs in OI investigations, in
June 2005, OI agents arrested three individuals on money laundering
and alien smuggling charges.[A] Through leads developed from a SAR, OI
agents identified and arrested the perpetrators of a large-scale money
laundering and alien smuggling ring that smuggled South American
nationals through the southwest border into the United States.
According to the ICE report, this case demonstrated that SARs not only
assist law enforcement in the identification of currency violators,
but also in the identification of perpetrators of other serious
crimes, such as alien smuggling.
Source: GAO analysis of court documents, ICE press releases, and ICE
documents on SARs use.
[A] U.S. Immigration and Customs Enforcement, The Cornerstone Report,
vol. II, no. 2 (2005).
[End of table]
The Number of Border Patrol Alien Smuggling Asset Seizures Has
Declined since 2005:
In addition to OI's seizure activity, the Border Patrol seizes assets
during the course of its interdictions of alien smugglers along the
southwest border. According to Border Patrol officials, the Border
Patrol has the legal authority (as do all agencies with enforcement
authority under Title 8) to seize vehicles, vessels, aircraft, or
other commercial conveyances that are involved in criminal activity.
After a seizure and forfeiture, the Border Patrol has the option to
keep the property or to auction it off and release the proceeds to the
Treasury Forfeiture Fund. Border Patrol officials in each of the
sectors we visited stated that a primary benefit of seizing alien
smuggler assets is that it disrupts their smuggling activities. For
example, Border Patrol officials in one sector stated that when an
expensive vehicle, such as a tractor trailer, is seized, alien
smugglers must expend new resources to replace the vehicle in order to
continue operating. The seizure therefore increases costs to the alien
smuggling business and disrupts the operation until a replacement
vehicle is purchased.
As shown in table 4, 90 percent of all Border Patrol seizures made
during alien smuggling apprehensions are vehicles. While the volume of
vehicles seized remained relatively constant from fiscal years 2005
through 2006, the number of vehicles seized declined from fiscal years
2007 through 2009. Border Patrol headquarters officials attribute the
decline in alien smuggling asset seizures to the decline in overall
apprehensions since 2006. The officials also stated that the El Paso
and Tucson Border Patrol sectors account for the majority of the
decrease in alien smuggling seizures; both sectors have seen steady
declines in removable alien apprehensions since fiscal year 2006.
Table 4: Number and Types of Border Patrol Seizures Related to Alien
Smuggling along the Southwest Border for Fiscal Years 2005 through
2009:
Fiscal year: 2005;
Ammunition: 13;
Vehicles: 13,536;
Documents: 55;
Firearms: 35;
Money: 133;
Controlled substances: 223;
Other property: 288;
Real estate: 0;
Total number: 14,283.
Fiscal year: 2006;
Ammunition: 5;
Vehicles: 12,993;
Documents: 32;
Firearms: 32;
Money: 123;
Controlled substances: 276;
Other property: 246;
Real estate: 0;
Total number: 13,707.
Fiscal year: 2007;
Ammunition: 21;
Vehicles: 10,207;
Documents: 16;
Firearms: 33;
Money: 170;
Controlled substances: 275;
Other property: 258;
Real estate: 0;
Total number: 10,980.
Fiscal year: 2008;
Ammunition: 26;
Vehicles: 8,855;
Documents: 447;
Firearms: 58;
Money: 232;
Controlled substances: 250;
Other property: 315;
Real estate: 0;
Total number: 10,183.
Fiscal year: 2009;
Ammunition: 45;
Vehicles: 6,180;
Documents: 622;
Firearms: 32;
Money: 130;
Controlled substances: 342;
Other property: 240;
Real estate: 1;
Total number: 7,592.
Fiscal year: Total;
Ammunition: 110;
Vehicles: 51,771;
Documents: 1,172;
Firearms: 190;
Money: 788;
Controlled substances: 1,366;
Other property: 1,347;
Real estate: 1;
Total number: 56,745.
Fiscal year: Percentage of total;
Ammunition: 0.2;
Vehicles: 91.2;
Documents: 2.1;
Firearms: 0.3;
Money: 1.4;
Controlled substances: 2.4;
Other property: 2.4;
Real estate: 0.0;
Total number: 100.
Source: GAO analysis of Border Patrol data.
Note: The Border Patrol does not have complete information for the
value of assets seized because the asset value is not a mandatory data
entry field. Therefore, the Border Patrol was only able to provide us
with the number of assets seized during incidents that involved alien
smuggling. One incident could involve multiple seizures.
[End of table]
Lack of Civil Asset Forfeiture Authority Makes Seizing Real Property
Difficult:
We previously reported on the limitations presented by a lack of civil
asset forfeiture authority for real property used to facilitate alien
smuggling, which makes seizing real property (such as real estate)
infrequent and difficult in alien smuggling cases.[Footnote 24] Civil
asset forfeiture authority allows federal authorities to seize
property used to facilitate a crime without first having to convict
the property owner of a crime.[Footnote 25] We reported in 2005 that
Justice and ICE headquarters officials said that a concern for
investigators was the lack of adequate statutory civil forfeiture
authority for seizing real property--particularly stash houses used by
smugglers that were not owned by the smugglers. According to Justice,
in 2005 analysis of civil and criminal forfeiture statutes generally
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. We recommended 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. Justice agreed with our recommendation. In
response to this recommendation, civil asset forfeiture authority for
real property used to facilitate alien smuggling was sought by Justice
and incorporated into several larger bills addressing immigration
enforcement or reform since 2005, but none of these bills had been
enacted into law as of March 2010. According to Justice officials, the
current administration has not yet taken a position on civil asset
forfeiture authority for alien smuggling cases.
We continue to believe it is important for Justice to submit its views
to Congress as to whether it needs civil asset forfeiture authority to
seize real property used to facilitate alien smuggling in order to
combat this crime effectively. During our site visits along the
southwest border, OI investigators indicated that lack of such
authority makes it difficult to seize real estate involved in alien
smuggling activity. For example, in one OI office, officials pointed
to a graphic depiction of over 300 stash houses the investigators were
aware of over the past several years in one metropolitan area. The
officials stated that they were able to seize only one of those houses
and that civil asset forfeiture authority would have made it easier to
seize far more. As we reported in 2005, civil asset forfeiture laws
are designed to strike a balance between the law enforcement and
property interests involved, and a proposal to expand civil forfeiture
for alien smuggling to correspond with that permitted for drug
trafficking or money laundering would need to take this context into
account.[Footnote 26]
Arizona Attorney General Has Disrupted Alien Smuggling Operations and
Seized Assets by Focusing on Money Services Businesses; Opportunities
Exist to Leverage These Resources:
According to Arizona law enforcement officials and court affidavits we
reviewed, wire transfers through money services businesses (MSB) are a
primary method of payment for smuggled aliens in the southwest border
region.[Footnote 27] The federal interagency 2007 National Money
Laundering Strategy and its accompanying 2005 U.S. Money Laundering
Threat Assessment identify MSBs as an increasing threat for laundering
illicit proceeds. According to the strategy, MSBs are becoming
increasingly attractive to criminal groups for several reasons. The
majority of wire transfers at MSBs are paid for with cash and
therefore MSBs provide excellent camouflage for the initial
introduction of the illicit proceeds into the financial system. The
sheer volume of legitimate cash transactions also provides an
excellent camouflage for money laundering activity in this placement
stage. MSBs offer inexpensive services and often impose less rigorous
anti-money laundering programs and compliance than traditional
financial institutions. Lastly, with offices in thousands of cities
around the world, MSBs allow customers to move funds from nearly any
location directly to any other location. The strategy states that law
enforcement believes that large amounts of funds sent to the southwest
border via MSBs are related to alien smuggling.
In order to address the threat posed by alien smugglers' use of MSBs,
in 2000 the Arizona Financial Crimes Task Force (the Task Force),
composed of investigators from the Arizona Department of Public
Safety, the Arizona Attorney General's Office, the Phoenix Police
Department, and the former U.S. Customs Service, implemented a
strategy that focused on following the money flowing through MSBs in
Arizona to identify suspected alien smugglers and those MSBs that may
be complicit in laundering proceeds from alien smuggling. The Task
Force's strategy contained the following major investigative
techniques:
* CTRs and SARs. The Task Force began analyzing CTRs in 1999 prior to
the initiation of SAR reporting for MSBs in 2001.[Footnote 28] Under
Arizona law as well as federal law, an MSB is required to file a SAR
if the MSB suspects, for example, that the transaction is related to a
possible violation of law or regulation. Task Force investigators
analyzed these SARs to identify potential smugglers.
* Geographic targeting orders (GTO). Beginning in June 2003, Arizona
issued a GTO that allows the state to require additional
identification or reporting requirements for certain financial
transactions in a geographic area. Under the GTO, for all person-to-
person transactions arriving in high-volume MSB locations in the
southern one-third of the state in amounts over $500, Arizona required
MSBs to obtain the receivers' fingerprints and signatures.
* Transaction data. According to Task Force officials, the foundation
to their strategy has been their ability to obtain and analyze data
from individual MSB transactions. Each transaction has a unique money
transfer control number and contains, for example, the sender's name
and address, the amount sent, the sending MSB's unique identification
number, the receiver's name and address, the amount received, as well
as the receiving MSB's unique identification number. Using the Arizona
Attorney General's subpoena power, the Task Force initially obtained
data on all transactions greater than $750 (in 2003 the threshold
changed to $500) entering or leaving Arizona from all major MSBs in
the Phoenix area. Using computer analytics software, the Task Force
searched for data anomalies that based upon Task Force officials'
experience, could indicate laundering of alien smuggling proceeds. For
example:
- Individuals who and MSBs that conducted more transactions and
received larger dollar amounts than the norm.
- Individuals who received the same dollar amount consistent with the
going rate for smuggling an alien from numerous senders in different
states.
- MSBs that had a higher ratio of large to normal transactions than
the norm.
- Repetitive wire transfers in large amounts sent to the same receiver
names within a few days.
- Patterns of false information appearing in MSB transaction records,
such as a receiver providing multiple addresses, Social Security
numbers, or telephone numbers for wire transfers received over a short
time (such as a few months).
- Patterns of imbalance in the volume of wire transfers sent to
Arizona from corridor states (states most preferred by smuggled aliens
as final destinations) compared to the volume of wire transfers sent
from Arizona to those corridor states.
These anomalies were occurring during the time of year when most alien
smuggling was believed to be occurring, what the Task Force called the
"seasonal coyote pattern."[Footnote 29] Using criteria such as these,
the Task Force selected a random sample of transactions to determine
the extent to which the criteria could be relied upon to identify
potential smugglers, MSBs involved in alien smuggling, or both.
According to a court affidavit filed by a Task Force investigator,
over 90 percent of the transactions selected in the various samples
taken since the Task Force began analyzing these data were related to
alien smuggling, including in some cases those for other criminal
activity, such as drug trafficking. Since the Task Force began
analyzing these data, it has refined its criteria based upon evidence
obtained during its investigations and additional data analysis.
According to Task Force officials, the Task Force has a database
containing millions of transactions and continues to receive
transaction data on a weekly basis from some of the major MSBs in
Arizona.
* Seizure warrants. Based upon the above analysis of MSB transaction
data as well as other evidence gathered through traditional law
enforcement actions, the Task Force obtained approximately 20 court-
ordered warrants from the summer of 2001 through 2006 to seize wire
transfers it believed were for the payment of alien smuggling or
narcotics trafficking. Under the warrant, the MSB was ordered to
electronically divert into a holding account wire transfers sent to or
from Arizona that matched specifically targeted names or criteria.
When the receiving individuals tried to obtain the funds, they were
told that the funds had been seized by the state and that they could
call a dedicated 1-800 number if they believed the state erred in
seizing their funds. According to Task Force officials, most of the
seizures were not contested.
According to Arizona law enforcement officials, while alien smuggling
into Arizona has not been eliminated, the above strategy has
significantly disrupted alien smuggling operations in Arizona and has
largely eliminated the ability of MSBs in Arizona to receive smuggling
payments. According to Arizona law enforcement officials, since 2001
they seized about $17 million in funds transacted through MSBs,
arrested over 300 alien smugglers, and seized 8 car dealerships and 9
travel agencies involved in alien smuggling. They also shut down
approximately 35 MSB outlets in Arizona for facilitating illicit
transactions. Arizona law enforcement investigators described how
their strategy of targeting MSBs led to disruptions of alien smuggler
activities. For example, surveillance of MSBs suspected to be involved
in laundering alien smuggling payments identified suspected smugglers
who were then followed, enabling Task Force investigators to locate
previously unknown stash houses holding undocumented aliens. In one
instance, evidence found at one such stash house led investigators to
identify and eventually prosecute owners of a travel agency that
provided airline tickets to move undocumented aliens from the border
area to the interior to the United States. The evidence led to the
seizure of 6 travel agencies engaged in alien smuggling. According to
Task Force officials, analysis of wire transfer data has resulted in
identifying other criminal activity as well, including narcotics
trafficking, off-shore gambling, criminal activity by members of the
Russian Mafia, and identity theft.
As shown in figure 5, the dollar amount of wire transfers over $500
declined from a high of over $35 million per month in March 2005 to
less than $10 million by March 2006, and to nearly zero by August
2006. According to an Arizona Attorney General senior litigation
counsel, the declines in March to April of 2005 and February to March
of 2006 coincided with seizure warrants conducted by the Task Force
during these time periods. In June 2006, Western Union, the largest
MSB in Arizona and whose agents were the target of several Task Force
investigations, imposed a limit of $450 on the amount of funds that
could be wired into Arizona from any location, in effect, inhibiting
smugglers' ability to use Western Union agents since the smuggling fee
at that time was at least $1,800 per person. In addition, in 2008
Western Union was fined $2 million for, among other things, failure to
comply with the Arizona Attorney General's GTO, failure to record
required customer identification, and failure to comply with a
previous 2006 order that it comply with the Arizona Attorney General's
GTO and record required customer identification. In 2006 Western Union
was also fined $5 million for failing to comply with the Arizona
Attorney General's GTO and record required customer identification.
[Footnote 30]
Figure 5: Dollar Value of Western Union Wire Transfers over $500
Received in Arizona (January 2004 through August 2006):
[Refer to PDF for image: line graph]
Date: January 2004;
Value of transfers received in Arizona: $20,000,000.
Date: February 2004;
Value of transfers received in Arizona: $26,000,000.
Date: March 2004;
Value of transfers received in Arizona: $33,000,000.
Date: April 2004;
Value of transfers received in Arizona: $28,000,000.
Date: May 2004;
Value of transfers received in Arizona: $26,000,000.
Date: June 2004;
Value of transfers received in Arizona: $18,000,000.
Date: July 2004;
Value of transfers received in Arizona: $26,000,000.
Date: August 2004;
Value of transfers received in Arizona: $27,000,000.
Date: September 2004;
Value of transfers received in Arizona: $24,000,000.
Date: October 2004;
Value of transfers received in Arizona: $23,000,000.
Date: November 2004;
Value of transfers received in Arizona: $18,000,000.
Date: December 2004;
Value of transfers received in Arizona: $16,000,000.
Date: January 2005;
Value of transfers received in Arizona: $26,000,000.
Date: February 2005;
Value of transfers received in Arizona: $33,000,000.
Date: March 2005;
Value of transfers received in Arizona: $37,000,000.
Date: April 2005;
Value of transfers received in Arizona: $20,000,000.
Date: May 2005;
Value of transfers received in Arizona: $21,000,000.
Date: June 2005;
Value of transfers received in Arizona: $18,000,000.
Date: July 2005;
Value of transfers received in Arizona: $19,000,000.
Date: August 2005;
Value of transfers received in Arizona: $21,000,000.
Date: September 2005;
Value of transfers received in Arizona: $17,000,000.
Date: October 2005;
Value of transfers received in Arizona: $17,000,000.
Date: November 2005;
Value of transfers received in Arizona: $15,000,000.
Date: December 2005;
Value of transfers received in Arizona: $13,000,000.
Date: January 2006;
Value of transfers received in Arizona: $17,000,000.
Date: February 2006;
Value of transfers received in Arizona: $16,000,000.
Date: March 2006;
Value of transfers received in Arizona: $8,000,000.
Date: April 2006;
Value of transfers received in Arizona: $7,000,000.
Date: May 2006;
Value of transfers received in Arizona: $3,000,000.
Date: June 2006;
Value of transfers received in Arizona: $1,000,000.
Date: July 2006;
Value of transfers received in Arizona: $500,000.
Date: August 2006;
Value of transfers received in Arizona: $1,000,000.
Source: Affidavit submitted to the Arizona Superior Court by the
Arizona Department of Public Safety, November 2006.
[End of figure]
As a result of Arizona's enforcement efforts and the $450 Western
Union limit on wire transfers to Arizona, alien smugglers have
adjusted their way of receiving smuggling payments. According to Task
Force officials and court affidavits, payments for aliens smuggled
into Arizona are now wired to smuggler contacts in Mexico or to
contacts in other U.S. states, such as Nevada. The contacts then
notify the smuggler once payment has been received. Arizona law
enforcement officials attempted to obtain a warrant to seize certain
wire transfers sent from other states to Mexico. However, the Arizona
Supreme Court eventually ruled that the state court did not have
jurisdiction to issue such a warrant.[Footnote 31] According to
federal law enforcement officials in Arizona, alien smugglers also now
use "funnel accounts," which are deposit accounts established at
traditional banks for the purpose of holding payments for smuggling
services. The officials provided the example of a large U.S. bank,
with a nationwide branch and automated teller machine (ATM) network. A
deposit account would be opened in Arizona with this bank and sponsors
of smuggled aliens could then deposit payment for smuggling services
directly into this account through an ATM or bank office from anywhere
in the United States. The alien smuggler could then withdraw money
from this account.
According to both OI and Arizona law enforcement officials, one of
OI's predecessors (the U.S. Customs Service) began as a partner in
Arizona's seizure activity, and OI continued that role until it
withdrew in 2005 after concerns about alien safety and the legality of
the seizure warrants used by Arizona law enforcement officials.
According to OI officials, there was a concern that alien smugglers
might harm or hold hostage the smuggled aliens once payments for
smuggling services were seized. In addition, OI and Justice officials
told us that they had concerns that Arizona's seizure warrants that
focused on seizing wire transfers based upon their characteristics
(e.g., dollar amount, coming from a specific state, or being picked up
at a specific MSB location) rather than a specific individual known to
be a smuggler are not be allowed under federal law. OI is not
currently targeting MSBs for alien smuggling investigations southwest
border-wide. However, the OI's Phoenix SAC has assigned one
investigator to the Task Force.
According to OI headquarters officials, OI does not have a position on
the effectiveness of the Arizona Attorney General's efforts to disrupt
alien smuggling. The officials cite lack of sufficient information
regarding Arizona's alien smuggling initiatives--such as the targeting
methodology employed to identify suspect remittances, the underlying
legal theory and framework upon which the initiative was based, an
explanation of the state statutory authority permitting the use of the
seizure warrants in this context absent particularized probable cause
connecting a specific remittance to an alien smuggling incident,
analysis of any performance measures or results produced by the
Arizona Attorney General, and information on the civil litigation that
resulted from this initiative--that would permit a thorough analysis
and evaluation of the effectiveness of these efforts.[Footnote 32] The
officials acknowledge that it may be useful to have an assessment of
these issues completed so that any effective and applicable techniques
can be shared and used by OI field offices as part of their alien
smuggling investigations. OI headquarters officials also told us that
a fuller examination of Arizona's financial investigative techniques
and their potential to be used at the federal level would be useful
and that they would be willing to facilitate meetings or exchanges of
information necessary to evaluate the effectiveness of Arizona's
financial strategy to disrupt alien smuggling.
Assessing Arizona Financial Investigative Techniques and Approach
Could Identify Opportunities for Leveraging Resources to Counter Alien
Smuggling across the Southwest Border:
Arizona's financial investigative techniques and resources offer the
potential to enhance efforts to counter alien smuggling as well as
advance other federal anti-money laundering goals and objectives. For
example, Task Force investigators have developed analytical
capabilities that when applied to MSB transaction data can, according
to Task Force investigators, identify with a high degree of certainty
transactions and related individuals and MSBs involved in laundering
alien smuggling proceeds. OI's ability to obtain MSB transaction data
from other states along the southwest border, when warranted, might be
leveraged with Arizona's analytical capabilities to identify money
laundering related to alien smuggling in locations across the
southwest border other than Arizona. Identifying MSBs involved in
alien smuggling might support the federal government's goal of
identifying and prosecuting MSBs that facilitate money laundering, as
stated in the National Money Laundering Strategy. Arizona used GTOs
that imposed additional reporting requirements on MSBs located in
certain geographic areas in Arizona. Federal BSA regulations also
allow for the use of GTOs in geographic regions for which there is
evidence of heightened risk for the evasion of BSA requirements. The
June 2009 National Southwest Border Counternarcotics Strategy states
that Treasury is to work with federal law enforcement agencies to
determine whether the use of GTOs could help to disrupt money
laundering networks that utilize MSBs. According to FinCEN, imposition
of additional reporting requirements through a GTO may assist in
disrupting alien smuggling.
As discussed earlier in this report, HSTC was created to achieve
greater integration and overall effectiveness in the U.S. government's
law enforcement efforts related to issues of alien smuggling and human
trafficking. One of HSTC's responsibilities is to prepare strategic
assessments related to aspects of human smuggling, such as proven law
enforcement and other approaches for countering alien smuggling, in
order to provide policymakers with accurate, objective analysis about
threats, vulnerabilities, and opportunities for action. An assessment,
by HSTC or another ICE-designated entity, could identify how resources
might be leveraged and also address federal concerns regarding the use
of seizure warrants. An overall assessment of whether and how these
techniques may be applied in the context of disrupting alien smuggling
could help ensure that ICE is not missing opportunities to take
additional actions and leverage resources to support the common goal
of countering alien smuggling.
OI and CBP Have Established Objectives for Their Alien Smuggling-
Related Programs, but Can Do More to Better Measure Progress toward
Achieving Program Objectives:
Program-Related Documents Identify OI and CBP Objectives for
Addressing Alien Smuggling:
Standards for internal control in the federal government state that
federal programs should have clear objectives.[Footnote 33] Consistent
with these standards, both OI and CBP have established objectives for
their alien smuggling programs. With regard to alien smuggling, ICE's
April 2005 interim strategic plan states that OI's overall objective
is to use its combined customs and immigration authorities to more
effectively prevent trafficking and smuggling of people, weapons, and
other contraband into the United States by identifying, locating,
disrupting, and prosecuting the organizations that commit these
crimes. The plan identified several strategies to accomplish this
objective, including denying smuggling organizations the profit from
criminal acts, tracking financial information to identify additional
targets and further OI investigations, and applying asset forfeiture
to disrupt and dismantle smuggling organizations.[Footnote 34]
Further, according to an ICE report, OI enhances ICE's role as the
lead investigative entity for alien smuggling by identifying and
targeting illicit organizations' ill-gotten proceeds for forfeiture.
[Footnote 35] OI officials in the four SAC offices we visited also
told us that tracking and attempting to seize alien smuggling funds
was a part of any alien smuggling investigation.
CBP and DRO have also defined the objectives of their enforcement
programs with a nexus to alien smuggling. For the OASISS program,
which targets alien smugglers for prosecution in Mexico, CBP has
documented the objectives and goals of the OASISS program in training
materials. For example, according to OASISS-related training
documents, OASISS objectives include performing cross-border
investigations, facilitating binational information exchange,
coordinating binational law enforcement efforts, and conducting
binational prosecutions in an effort to dismantle smuggling
organizations in Mexico and the United States. Further, all of the
Border Patrol OASISS program officials we interviewed stated that a
key objective of the OASISS program is to reduce the numbers of alien
smugglers who recidivate by apprehending them and transferring them to
Mexico for prosecution. According to CBP officials, the objective of
ATEP is to transport removable aliens out of the apprehending sector
for subsequent removal to Mexico through an adjacent sector in order
to disrupt alien smuggling organizations operating in the
participating Border Patrol sectors. For the Operation Streamline
program, which prosecutes removable aliens for illegal entry into the
United States, CBP officials told us that one of the goals of the
program is to deter aliens from crossing into the United States
illegally again, thereby reducing the number of individuals seeking
assistance from alien smuggling organizations. Regarding MIRP, in
accordance with the 2004 MIRP MOU between the United States and Mexico
the objectives are to remove aliens from the United States--
apprehended during the summer months, generally the hottest and most
dangerous time of year for border crossings--to the interior of Mexico
to deter them from returning in order to reduce loss of life and to
combat organized crime linked to the smuggling, trafficking, and
exploitation of persons.
ICE and CBP Have Not Fully Evaluated Progress in Meeting Alien
Smuggling Objectives:
Taking Actions to Fully Measure Progress toward Achieving Objectives
Would Help ICE and CBP to Evaluate Their Effectiveness along the
Southwest Border:
Federal internal control standards call for agencies to establish
performance measures and indicators in order to evaluate the
effectiveness of their efforts.[Footnote 36] Measuring performance
allows organizations to track the progress they are making toward
their goals and gives managers critical information on which to base
decisions for improving their programs. We have previously reported on
some of the most important attributes of successful performance
measures, including that performance measures should (1) be linked to
an agency's mission and goals, (2) be clearly stated, and (3) have
quantifiable targets or other measurable values[Footnote 37].:
Until fiscal year 2009, OI measured its performance by calculating the
percentage of closed investigative cases that had an enforcement
consequence (defined as an arrest, indictment, conviction, seizure,
fine, or penalty) for all investigative areas combined. OI performance
in addressing alien smuggling was not specifically assessed. According
to OI officials, beginning in fiscal year 2009, OI measured the
percentage of closed human trafficking and human smuggling
investigative cases that have an enforcement consequence. The goal for
fiscal year 2009 was 50 percent. OI plans to implement a similar
performance measure for all of its other investigative areas in future
years.
Although it did not establish a performance measure for alien
smuggling enforcement consequences until fiscal year 2009, OI provided
us with such data for the period from fiscal years 2005 through 2009.
These data do not include human trafficking cases, which OI plans to
include in the future metric. As shown in table 5, in fiscal year
2009, two of the four SAC offices met the 50 percent goal.
Table 5: Percentage of Closed OI Southwest Border Alien Smuggling
Cases with an Enforcement Consequence, Fiscal Years 2005 through 2009:
Southwest border SAC office: El Paso;
FY 2005: 49;
FY 2006: 61;
FY 2007: 71;
FY 2008: 71;
FY 2009: 64.
Southwest border SAC office: Phoenix;
FY 2005: 39;
FY 2006: 51;
FY 2007: 37;
FY 2008: 46;
FY 2009: 42.
Southwest border SAC office: San Antonio;
FY 2005: 36;
FY 2006: 47;
FY 2007: 56;
FY 2008: 65;
FY 2009: 74.
Southwest border SAC office: San Diego;
FY 2005: 16;
FY 2006: 27;
FY 2007: 38;
FY 2008: 53;
FY 2009: 32.
Source: GAO analysis of OI data.
[End of table]
Although one of the objectives of OI's alien smuggling investigations
is to seize smugglers' assets, OI does not have performance measures
for asset seizures related to alien smuggling cases. OI plans to track
as a performance measure asset seizures across investigative areas and
has implemented a new measure that tracks the dollar value of asset
seizures derived from drug operations. Tracking the use of asset
seizures in alien smuggling investigations as a performance measure
could help OI monitor its progress toward its goal of denying
smuggling organizations the profit from criminal acts. Alien smuggling
is the second most resource-intensive investigative area (next to drug
trafficking) in OI's southwest border locations. Monitoring the use of
alien smuggling asset seizures could also help assess the worthiness
of seizure techniques and help assess investigative resource needs.
Although DRO and CBP have defined the objectives of their alien
smuggling-related enforcement programs, they have not yet established
performance measures. For MIRP, while DRO does not currently have
performance measures, the program has had performance measures in the
past. When the former INS established MIRP as a pilot program in 1996,
it established performance measures for the program. According to
INS's operational plan for the program,[Footnote 38] the recidivism
rate for removable aliens processed through MIRP should not exceed 5
percent within the first 6 months and should not exceed 20 percent
within the first year of initial processing. The plan noted that after
the first year, the recidivism rate should not exceed 40 percent in
order for the program to be considered successful.
Although DRO has not established any performance measures to measure
MIRP's effectiveness, there is evidence that removable aliens
processed through MIRP may be less likely to reenter the United States
illegally. According to a 2005 Homeland Security Institute study, 7
percent of the removable aliens repatriated through the program were
reapprehended during the following 2-½-month period while 28 percent
of the removable aliens not repatriated through MIRP were
reapprehended during the same period, as shown in table 6.
Table 6: Number of Aliens Processed through MIRP from June through
August 2005:
Border Patrol sectors: Yuma, Arizona, sector;
Total apprehensions: 31,551;
Aliens processed through MIRP: 776;
Percentage of aliens processed through MIRP: 2;
Percentage of aliens processed through MIRP who were reapprehended: 5;
Percentage of aliens reapprehended who were not processed through
MIRP: 33.
Border Patrol sectors: Tucson, Arizona, sector; West Desert area;
Total apprehensions: 41,286;
Aliens processed through MIRP: 11,622;
Percentage of aliens processed through MIRP: 28;
Percentage of aliens processed through MIRP who were reapprehended: 7;
Percentage of aliens reapprehended who were not processed through
MIRP: 21.
Border Patrol sectors: Tucson, Arizona, sector; Nogales area;
Total apprehensions: 16,059;
Aliens processed through MIRP: 2,602;
Percentage of aliens processed through MIRP: 16;
Percentage of aliens processed through MIRP who were reapprehended: 6;
Percentage of aliens reapprehended who were not processed through
MIRP: 25.
Border Patrol sectors: Tucson, Arizona, sector; Naco/Douglas;
Total apprehensions: 24,219;
Aliens processed through MIRP: 29;
Percentage of aliens processed through MIRP: 0;
Percentage of aliens processed through MIRP who were reapprehended: 7;
Percentage of aliens reapprehended who were not processed through
MIRP: 36.
Border Patrol sectors: Total;
Total apprehensions: 113, 115;
Aliens processed through MIRP: 15,029;
Percentage of aliens processed through MIRP: 13;
Percentage of aliens processed through MIRP who were reapprehended: 7;
Percentage of aliens reapprehended who were not processed through
MIRP: 28.
Source: Homeland Security Institute, Measuring the Effects of the
Arizona Border Control Initiative, 2005.
Note: Aliens processed through MIRP were not randomly assigned to
MIRP. Therefore, other factors aside from MIRP participation could
affect reapprehension rates.
[End of table]
For the OASISS program, CBP officials told us that they are in the
process of developing measures. According to CBP officials, the Border
Patrol organized two 2-day workshops designed to foster the
development of a Program Performance Framework for the OASISS program.
The framework is to include objectives, performance measures, and data
collection requirements for the program. CBP officials told us in
January 2010 that the final approval of the framework and
corresponding performance measures was pending and they expect to
implement performance measures for the OASISS program during fiscal
year 2010. CBP has not established performance measures for ATEP and
Operation Streamline to assess progress toward achieving program
goals. According to CBP officials, while they have not established
ATEP performance measures for the entire southwest border, measures
are in place at the Border Patrol sector level based upon
reapprehensions. However, they acknowledged that because these
measures are not assessing performance for the entire southwest
border, the full effect of ATEP is unknown. Regarding Operation
Streamline, CBP officials agree that there are no performance measures
in place for the program. Without performance measures for MIRP, the
OASISS program, ATEP, and Operation Streamline, DRO and CBP program
officials may lack critical information with which to track the
progress they are making toward program goals.
The Homeland Security Institute evaluation of MIRP offers insight into
possible performance measures that CBP could use to evaluate the
effectiveness of ATEP and Operation Streamline. The study compared the
recidivism rates of aliens processed through MIRP and those not
processed through MIRP to evaluate the effectiveness of MIRP at
deterring illegal reentry.
CBP Officials Are in Preliminary Discussions to Establish Systematic
Program Evaluations, but Have Not Established a Plan, with Time
Frames, for Their Completion:
Program evaluations are systematic studies that are conducted
periodically to assess how well a program is working while performance
measures identify a program's progress toward a defined outcome.
[Footnote 39] Moreover, federal standards for internal control specify
that promptly evaluating findings from audits and other reviews to
determine proper actions is essential to monitoring the outcomes of
agencies' performance.[Footnote 40] However, CBP has not conducted
program evaluations of the OASISS program, ATEP, and Operation
Streamline to determine the extent to which these enforcement programs
have been effective in helping to deter alien smuggling and meet its
strategic goal of securing the border.
As a first step, in December 2008, CBP implemented a computer software
application, called e3, to capture data that could be used to evaluate
CBP enforcement programs. CBP officials told us that one of the
reasons CBP developed e3 was to create an interface with the ENFORCE
Integrated Database to improve CBP's information-gathering
capabilities and streamline and improve the collection of complete,
accurate, and consistent data from all Border Patrol sectors.[Footnote
41] The application is to interface with other agency databases, which
should allow law enforcement agencies to exchange information.
CBP officials told us that e3 will provide a standardized method of
data collection that will ease their ability to eventually perform
program evaluations. In June 2009, program fields were added to e3
that allow border patrol agents to select the specific enforcement
program, such as ATEP, MIRP, or Operation Streamline, associated with
the removable alien. Capturing these data should allow CBP to compare
enforcement program results of removable aliens associated with
specific enforcement programs with those of removable aliens not
involved with specific programs as one way of measuring program
effectiveness. Emphasizing the need to capture enforcement program
data, the Chief of the Border Patrol issued a December 2009 memorandum
noting that recent statistics show that program data within e3 had not
been captured on a consistent basis. Further, the memo stated that in
order to analyze the effectiveness of these programs, capturing data
in e3 is of utmost importance and he directed agents to ensure that
they are aware of correct data processing procedures, particularly
with regard to tracking Border Patrol enforcement programs. The Border
Patrol also provided guidance on the types of information that need to
be collected, such as fingerprint identification number, name, age,
and apprehension date[s] that are processed in e3.
Based on existing federal guidance, our prior work, and the work of
others, standard practices in project management for defining,
designing, and executing programs include developing a program plan to
establish an order for executing specific projects needed to obtain
defined programmatic results within a specified time frame.[Footnote
42] In October 2009, CBP officials told us that they have a project to
develop systematic evaluation practices that will allow them to
conduct program evaluations of the OASISS program, ATEP, and Operation
Streamline. CBP officials told us that they were discussing what key
elements to include in their evaluation practices, such as performance
measures, improved data collection methods, agreed-upon data points,
and universal operational definitions. However, CBP had not developed
a project plan that outlined the time frames for the development of
these key elements and what office would be responsible for conducting
the program evaluations. As a result, CBP officials told us that they
were unsure of a timeline or implementation date for the evaluation
process. Developing a project plan could help CBP ensure that the
necessary mechanisms are put into place as it intended so that it can
conduct the desired program evaluations.
According to CBP officials, while the agency has not conducted
evaluations of its enforcement programs, they partially attribute the
decreased number of apprehensions and deaths in recent years along the
southwest border to these programs. CBP officials said that the
programs have benefited the surrounding border communities by reducing
illicit cross-border traffic, thereby reducing crimes directly related
to the actions of criminal smuggling organizations and illegal border
crossers. Program evaluations using comprehensive and reliable data
could help determine the effectiveness of these programs in such
things as reducing illicit cross-border traffic.
Conclusions:
Alien smuggling is a growing problem along the southwest border; it
has brought increasing violence to area communities and the potential
for smuggling aliens from special interest countries into the United
States. Both ICE and CBP have made significant antismuggling efforts,
but opportunities exist to leverage resources to further combat the
problem and better evaluate progress toward accomplishing their
respective missions. By studying the feasibility of expanding the LEAR
program along the southwest border, ICE would be in a better position
to evaluate alternatives for aligning the duties of its OI staff with
OI's investigative mission and helping ensure more efficient use of
its resources. Assessing whether the Arizona Attorney General's
financial investigative techniques could be used and would be useful
in disrupting alien smuggling would better position OI in determining
whether it could take advantage of an opportunity to further its
mission. Developing performance measures for alien smuggling asset
seizures would allow ICE to assess progress toward this particular
goal. Reassessing the prior proposal to Congress for civil asset
forfeiture authority in view of current circumstances would help
determine whether amending the civil forfeiture authority for real
property used to facilitate the smuggling of aliens remains necessary.
Further, DRO and CBP manage programs that counter alien smuggling, but
have not developed performance measures for some of their programs.
Also, CBP has not established a plan with time frames for program
evaluation using e3 data. Completing these tasks would help DRO and
CBP assess progress toward achieving their goals.
Recommendations for Executive Action:
In order to improve federal efforts to address alien smuggling, we are
making six recommendations to DHS and Justice. We recommend that the
Assistant Secretary for ICE take the following four actions:
* To better align agency staff responsibilities with their agency
missions and improve efficiency, study the feasibility of expanding
the LEAR program along the southwest border and, if it is found to be
feasible, expand the program.
* To determine whether ICE could utilize Arizona's financial
investigative techniques to address alien smuggling, direct HSTC or
another ICE-designated entity to conduct an assessment of the Arizona
Attorney General's financial investigations strategy to identify any
promising investigative techniques for federal use.
* To better assess OI's progress toward its investigative goals,
develop performance measures for asset seizures related to alien
smuggling investigations.
* To help ensure that DRO's MIRP achieves the results intended,
develop performance measures for the program.
To help ensure that CBP's alien smuggling-related enforcement programs
achieve the results intended, we recommend that the Commissioner of
CBP establish a plan, including performance measures, with time frames
for evaluating CBP's enforcement programs.
To enhance the ability of the federal government to seize real
property associated with alien smuggling activities, we recommend that
the Attorney General assess whether amending the civil forfeiture
authority for real property used to facilitate the smuggling of aliens
remains necessary and, if it remains necessary, develop and submit to
Congress such an amendment with appropriate justification.
Agency Comments, Third-Party Views, and Our Evaluation:
We requested comments on a draft of this report from DHS, Justice,
Treasury, and the Arizona Attorney General. On May 11, 2010, DHS
provided written comments, which are reprinted in appendix V. DHS also
provided technical comments, which we incorporated as appropriate.
Justice did not provide written comments to include in our report.
However, in an e-mail received May 3, 2010, the Justice liaison stated
that Justice concurred with our recommendation that the Attorney
General assess whether amending the civil forfeiture authority for
real property used to facilitate the smuggling of aliens remains
necessary and, if it remains necessary, develop and submit to Congress
such an amendment with appropriate justification. In an e-mail
received April 26, 2010, the Treasury liaison indicated that Treasury
had no comments on the report. The Arizona Attorney General provided
technical comments, which we incorporated as appropriate.
In commenting on the draft report, DHS stated that department
officials concurred with four of the five recommendations directed to
DHS and discussed actions planned or under way to implement them.
However, it is not clear to what extent these actions will fully
address the intent of three of the recommendations. Moreover, DHS
stated that it did not concur with our fourth recommendation to
measure the performance of DRO's MIRP.
ICE concurred with the first recommendation, to study the feasibility
of expanding the LEAR program and stated that expanding the program
would continue to improve ICE's efficiency by aligning the
responsibilities of OI and DRO in a more effective manner. DHS also
stated that ICE has studied the feasibility of expanding the LEAR
program to other areas, such as Los Angeles. Subsequent to receiving
DHS's comments, we followed up with ICE to obtain a copy of the
feasibility study. A DRO official clarified that DRO and OI have
continued to discuss expanding the LEAR program beyond Phoenix, but
ICE has not conducted and documented a feasibility study of expanding
the LEAR program along the entire southwest border. By conducting a
more complete study of the feasibility of expanding the program
throughout the southwest border region and expanding the program if it
deems it feasible, ICE would be in a better position to help ensure
that its resources are more efficiently directed toward alien
smuggling and other priority investigations. As a first step in
potentially expanding the program nationwide, DHS stated that DRO's
Criminal Alien Division prepared and submitted a resource allocation
plan proposal for its fiscal year 2012 budget.
Regarding the second recommendation, to assess the Arizona Attorney
General's financial investigative techniques, DHS stated that ICE
concurred and reported that during the week of April 12, 2010, ICE
participated in the inaugural meeting of the Southwest Border Anti-
Money Laundering Alliance, a body consisting of federal, state, and
local law enforcement agencies all along the southwest border. The
main purpose of the meeting was to synchronize enforcement priorities
and investigative techniques along the southwest border. While
synchronizing enforcement priorities and investigative techniques are
positive steps toward combating money laundering along the southwest
border, it is not clear to what extent these actions will result in
ICE evaluating the use of the Arizona Attorney General's financial
investigative techniques. An overall assessment of whether and how
these techniques may be applied in the context of disrupting alien
smuggling could help ensure that ICE is not missing opportunities to
leverage resources to support the common goal of countering alien
smuggling.
DHS also stated that ICE concurred with the third recommendation
related to performance measures for asset seizures and stated that ICE
is in the process of assessing all of its performance measures and
creating a performance plan. While these efforts have yet to result in
the establishment of performance measures for asset seizures related
to alien smuggling investigations, developing such measures could help
ICE to better monitor its progress toward achieving its seizure goals.
ICE did not agree with the fourth recommendation to develop
performance measures for MIRP because ICE believed that performance
measures for this program would not be appropriate. According to ICE,
any attempt to implement performance measures for MIRP to emphasize
the number of Mexican nationals returned or the cost-effectiveness of
the program would shift its focus away from the program's original
lifesaving intent and diminish and possibly endanger cooperation with
the Government of Mexico. In its letter, DHS states that MIRP was
developed in accordance with the February 20, 2004, MOU on the Safe,
Orderly, Dignified and Humane Repatriation of Mexican Nationals. One
of the principles in the MOU is to establish mechanisms to repatriate
Mexican nationals to their place of origin from high-risk zones of the
United States. Specifically, the MOU states that:
"In order to ensure efficiency in the implementation of arrangements
for repatriation and to agree on whatever individual and joint
measures are necessary to improve their effectiveness, the principles
set forth in this Memorandum of Understanding should be evaluated by
the appropriate officials of the Participating Agencies at least
annually or at any mutually acceptable time."
Thus, we believe that measuring MIRP's program performance would be
consistent with the MOU's intent that the principles be periodically
evaluated. In addition, our recommendation does not specify a
particular performance measure to be used; measuring numbers of
Mexican nationals returned or the cost-effectiveness of the program
may not be necessary for assessing MIRP's performance. However, we
continue to believe that developing performance measures for MIRP is
necessary to determine whether the program is meeting its objectives
of reducing the loss of human life and combating organized crime
linked to the smuggling, trafficking, and exploitation of persons.
DHS stated that CBP concurred with the fifth recommendation for
establishing a plan, including performance measures, with time frames,
for evaluating CBP's enforcement programs. Moreover, DHS stated that
CBP is developing a plan that will include program mission statements,
goals, objectives, and performance measures. However, it is not clear
to what extent this plan will include time frames for evaluating CBP's
enforcement efforts. For some of its enforcement programs, CBP has
begun gathering data and holding workshops with subject matter experts
to begin developing performance measures. These efforts are a positive
step toward implementing performance measures for CBP enforcement
programs, but we continue to believe that including time frames in its
plan for evaluating these programs could help CBP ensure that the
necessary mechanisms are put in place within time frames management
intended for conducting the desired program evaluations.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to the
Secretary of Homeland Security, the Attorney General, the Arizona
Attorney General, appropriate congressional committees, and other
interested parties. This report also will be available at no charge on
the GAO Web site at [hyperlink, http://www.gao.gov].
If you have any further questions about this report, please contact me
at (202) 512-8777 or stanar@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Key contributors to this report are listed in
appendix VI.
Signed by:
Richard M. Stana:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Objectives:
To provide insights concerning the federal government's efforts to
address alien smuggling along the southwest border, the Chairman of
the House Committee on Homeland Security and Congressman Harry
Mitchell requested that we examine the efforts made by the Department
of Homeland Security (DHS) and its largest investigative component,
U.S. Immigration and Customs Enforcement (ICE). Accordingly, this
report addresses the following three questions:
* Since fiscal year 2005, what has been the trend regarding the amount
of investigative effort ICE's Office of Investigations (OI) has
devoted to alien smuggling along the southwest border, what have been
the results, and is there an opportunity for ICE to use its
investigative resources more effectively?
* What progress has OI made in seizing assets related to alien
smuggling since fiscal year 2005 and what, if any, promising financial
investigative techniques could be applied along the southwest border
to target and seize the monetary assets of smuggling organizations?
* To what extent do ICE OI and U.S. Customs and Border Protection
(CBP) have objectives related to alien smuggling along the southwest
border and to what extent have they implemented internal controls to
measure progress toward these objectives?
For the purposes of this report, we use the term alien smuggling to
mean the procurement of illegal entry into a country of which the
smuggled person is neither a citizen nor a lawful permanent resident.
Alien smuggling usually involves a person who has consented to be
transported to another country, and the activity generally produces a
short-term profit for the smugglers. We also define removable alien as
an alien who can be removed from the United States because he or she
has violated U.S. immigration law or has committed a criminal act that
renders him or her removable from the country.[Footnote 43]
Scope and Methodology:
To address these questions, we conducted site visits and interviews
with officials from CBP's U.S. Border Patrol, ICE's OI and Office of
Detention and Removal Operations (DRO), and the Department of
Justice's Executive Office for U.S. Attorneys (EOUSA). We interviewed
officials from these offices because collectively these offices are
responsible for interdicting and removing smuggled aliens and
investigating and prosecuting alien smugglers. We interviewed
officials from each of the four OI special agent-in-charge (SAC)
offices along the southwest border: San Diego, California; Phoenix,
Arizona; El Paso, Texas; and San Antonio, Texas.[Footnote 44] We also
interviewed Border Patrol officials located in six of the nine
southwest border Border Patrol sectors: San Diego and El Centro,
California; Yuma and Tucson, Arizona; and El Paso and Laredo, Texas.
We selected these six Border Patrol sectors based on their proximity
to the OI SAC offices we visited and their varying volumes of alien
apprehensions. The Tucson and San Diego sectors had the highest levels
of apprehensions during fiscal year 2008, approximately 320,000 and
160,000 apprehensions, respectively. In contrast, the Yuma sector had
relatively few apprehensions in fiscal year 2008 after experiencing
declines from approximately 120,000 apprehensions in fiscal year 2006
to about 8,400 in fiscal year 2008. While the perspectives we obtained
from officials of the sectors cannot be generalized to all Border
Patrol officials along the southwest border, they provided us with an
overview of how their enforcement programs operate within and across
sectors. We also spoke with officials from all five U.S. Attorney
district offices along the southwest border: Southern California,
Arizona, New Mexico, Western Texas, and Southern Texas. Also, to
address these questions, we reviewed OI and CBP documentation related
to alien smuggling investigation and interdiction efforts. For
example, we reviewed ICE's 2005 interim strategic plan, the Human
Smuggling and Trafficking Center's briefing document on its
operations, and court documents related to OI alien smuggling
investigations. Similarly, we reviewed program documentation for CBP
efforts to address alien smuggling along the southwest border, such as
the Operation Against Smugglers Initiative on Safety and Security
(OASISS) program training materials and an evaluation of the Mexican
Interior Repatriation Program (MIRP) by the Homeland Security
Institute[Footnote 45] as well as materials on the operations and
costs of the program. We reviewed the scope, methodology, and findings
of the MIRP evaluation with the lead researcher from the institute and
determined that the scope and methodology of the institute's
evaluation was sufficient for us to rely on it as an example for how a
performance evaluation of MIRP could be conducted. Finally, we
attended an interagency conference in Phoenix on alien smuggling in
February 2009 sponsored by the U.S. Attorney for Arizona. Participants
in the conference included OI officials as well as Arizona state and
local investigators.
To provide supplementary perspectives on federal efforts to address
alien smuggling, particularly in coordinating with state and local law
enforcement agencies, we also interviewed state and local law
enforcement officials in Laredo, Texas; Phoenix, Arizona; and El Paso,
Texas.
In addition to the above, we performed the following work.
OI Resources Devoted to Alien Smuggling on the Southwest Border:
To address OI's use of investigative resources, we analyzed data from
TECS, the system OI uses to manage its cases. Using TECS data, we
analyzed OI self-reported investigator hours worked nationwide by SAC
location and alien smuggling case arrests, indictments, and
convictions achieved each fiscal year from 2005 through 2009. We
compared human capital policies for using resources effectively and
the position descriptions for OI criminal investigator and DRO
immigration enforcement agent (IEA) to analyze to what extent OI
investigators and DRO IEAs along the southwest border performed their
duties as defined in the position descriptions. We reviewed Law
Enforcement Agency Response program data gathered for Arizona to
analyze the volume of removable aliens processed through the program.
We supplemented these data analyses with interviews of OI and DRO
program officials, both in OI and DRO headquarters and in OI field
locations.
Progress in Seizing Alien Smuggler Assets and Identifying Promising
Investigative Financial Techniques:
To address progress in seizing assets related to alien smuggling, we
analyzed OI asset seizure data from TECS and Border Patrol asset
seizure data from the ENFORCE Integrated Database from fiscal years
2005 (the date of our last report) through 2009. We evaluated the data
to determine increases or decreases in the value of alien smuggling
seizures by OI and the volume of Border Patrol seizures during these
time periods. To supplement these quantitative data, we interviewed OI
and Border Patrol officials to better understand financial
investigative techniques used in alien smuggling investigations and
methods for seizing assets. We also interviewed officials from the
Department of the Treasury's Financial Crimes Enforcement Network to
determine how they collaborate with OI investigators in alien
smuggling cases. To identify potentially promising financial
investigative techniques for federal use along the southwest border,
we analyzed the federal interagency 2007 National Money Laundering
Strategy and its accompanying 2005 U.S. Money Laundering Threat
Assessment and an OI report on the results of financial investigations
and interviewed OI officials and Assistant U.S. Attorneys along the
southwest border. In addition, we interviewed the Arizona Attorney
General and officials with the Arizona Attorney General's Financial
Crimes Task Force (Task Force), and analyzed relevant court affidavits
prepared by Task Force investigators to obtain information on the
results of their efforts to address alien smuggling in Arizona. We
also analyzed data provided by the Arizona Attorney General's Office
on assets seized from 2001 through September 2009 as a result of its
alien smuggling investigations.
OI and CBP Objectives and Performance Measures for Addressing Alien
Smuggling:
To address the extent to which OI and CBP have objectives related to
alien smuggling along the southwest border and have implemented
internal controls to measure progress toward these objectives, we
reviewed ICE's 2005 interim strategic plan, an OI document describing
OI's role in alien smuggling investigations, documented plans for
future OI performance measures, CBP's 2005-2010 Strategic Plan, and
CBP's National Border Patrol Strategy. In addition, we reviewed CBP
program-related documents on the operations for MIRP, the OASISS
program, the Alien Transfer Exit Program (ATEP), and Operation
Streamline. Specifically, we reviewed a legacy Immigration and
Naturalization Service MIRP operations plan; the Border Patrol El
Paso, Texas, sector's briefing slides describing its OASISS program
operations; and the DHS/CBP OASISS program training manual. We
supplemented this documentation by obtaining written responses from
ICE and CBP regarding documented program objectives, performance
measures, and assessments for MIRP, the OASISS program, ATEP, and
Operation Streamline. We analyzed TECS data on the proportion of
closed OI alien smuggling cases that resulted in an enforcement
consequence and the value of OI asset seizures related to alien
smuggling investigations from fiscal years 2005 through 2009. In
addition, we interviewed OI officials both in headquarters and in SAC
locations to determine the extent to which they had established alien
smuggling goals and related performance measures. We also analyzed CBP
OASISS program data to determine the number of alien smugglers
processed through the program, the number accepted for prosecution by
the Mexican government, and the number turned over to Mexican
authorities. In addition, we analyzed CBP ENFORCE Integrated Database
data from fiscal year 2005 through May 2009 to determine the extent to
which alien smugglers were reapprehended by CBP after being processed
through the OASISS program.
Data Reliability:
To assess the reliability of data used for this report, we conducted
interviews with agency officials about data integrity processes and
the methods by which data are checked and reviewed internally for
accuracy. For each set of data relied upon for the report, we also
replicated selected calculations used by agency officials to ensure
accuracy. As discussed earlier in this report, the data recorded in
selected data fields used in our analyses are sufficiently reliable
for the purposes of this report.
We conducted this performance audit from September 2008 through May
2010 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: DRO and CBP Programs That Address Alien Smuggling:
DRO and CBP have implemented several programs designed to deter aliens
from entering the country illegally and thereby indirectly disrupting
alien smuggling. One program is specifically aimed at alien smugglers.
Not all programs are in all locations along the southwest border and
not all aliens or alien smugglers apprehended are eligible for all
programs. Table 7 summarizes the purpose of each program, when it was
established, and the Border Patrol sectors that have implemented the
program.
Table 7: CBP and DRO Programs That Address Alien Smuggling:
Program: Mexican Interior Repatriation Program;
Year established: 2004[A];
Purpose: Remove women, children, and the elderly from high-risk areas
of the Sonora Desert during the peak summer months and repatriate
these participants to the interior of Mexico;
Sectors in which the program operates: Tucson and Yuma.
Program: Operation Against Smugglers Initiative on Safety and Security
program;
Year established: 2005;
Purpose: Prosecute alien smugglers who endanger smuggled aliens' lives
along the southwest border;
Sectors in which the program operates: Del Rio, Yuma, Tucson, Laredo,
Marfa, San Diego, and El Paso[B].
Program: Operation Streamline;
Year established: Varies based on sector;
first started in Del Rio sector in 2005;
Purpose: Prosecute aliens for illegally entering the United States;
Sectors in which the program operates: Del Rio, Yuma, Tucson, Laredo,
and Rio Grande Valley.
Program: Alien Transfer Exit Program;
Year established: 2008;
Purpose: Disrupt alien smuggling organizations' operations by
transporting aliens out of the apprehending sector for subsequent
removal to Mexico through an adjacent sector;
Sectors in which the program operates: San Diego, Yuma, El Centro, and
Tucson.
Source: GAO analysis DRO and CBP program documents and interviews with
program officials.
[A] MIRP was originally piloted in 1996 in the San Diego Border Patrol
sector. However, it is unknown whether the program was in continuous
operation from 1996 through 2003. From 2004 to 2006, MIRP was operated
by the Border Patrol; however, in 2006 ICE's DRO took over the
operations of the program while CBP still provided initial processing
for MIRP participants.
[B] The OASISS program also includes alien smugglers caught at the
land ports of entry in Laredo, El Paso, Tucson, and San Diego.
[End of table]
In fiscal year 2008, over 95 percent of the aliens apprehended
entering the country illegally along the southwest border were Mexican
nationals. According to Border Patrol officials, most are allowed to
return voluntarily to Mexico after being processed for removal. As a
result, many try to enter illegally again, sometimes on the same day.
Some individuals arrested for smuggling aliens are not prosecuted by
the U.S. Attorney's Office and are also voluntarily removed. According
to Border Patrol officials, the major goal of these programs is to
remove voluntary return as an option and impose a consequence for
illegal entry or alien smuggling in those situations where no
consequence would have been imposed. The goal is to deter these
individuals from illegally reentering the United States.
MIRP:
MIRP was designed in 2004 as a bilateral effort between the United
States and Mexico to reduce the loss of human life and combat
organized crime linked to the smuggling, trafficking, and exploitation
of persons by returning noncriminal aliens--apprehended during the
summer months, generally the hottest and most dangerous time of year
for border crossings--to the interior of Mexico. From 2004 to 2006,
the Border Patrol operated the program; however, in 2006 DRO took over
the operations of MIRP while CBP still provided initial processing for
MIRP participants. In November 2009, the Assistant Secretary for ICE
testified that from August 22, 2009, through September 28, 2009,
10,560 Mexican nationals were voluntarily returned through the MIRP
initiative. During this time, ICE detailed 52 officers to the Phoenix
areas to support the MIRP operations and conducted 73 flights from
Tucson to Mexico City facilitating the return of the Mexican nationals
to the interior of Mexico. According to Border Patrol officials we
interviewed, once aliens are flown to the interior part of Mexico,
they are bused back to their communities of origin. Further, Border
Patrol officials stated that most do not have the funding to make the
trip back to United States to try another illegal reentry either
within the same week or even the same year, which keeps reapprehension
rates low. According to the Assistant Secretary's testimony, more than
93,000 Mexican nationals have been retuned to Mexico through MIRP over
the 5 years it has been in operation. Border Patrol officials told us
that by reducing the number of aliens seeking the assistance of alien
smugglers, the Border Patrol has disrupted smugglers' operations. In
addition, Border Patrol officials attribute to MIRP the reduced number
of rescue missions into the deserts of Yuma and Tucson where the
program operates because those at greater risk when crossing the
desert are returned to the interior of Mexico and are therefore less
likely to try again.
OASISS Program:
Our analysis of the OASISS program's data indicated that most
reapprehensions of OASISS program participants occur in two of seven
sectors in which the program operates. Across all of the sectors where
the program operates, San Diego and Tucson account for over 80 percent
of the OASISS program reapprehensions. Because of OASISS program data
limitations, we were unable to determine the original Border Patrol
OASISS processing sector in order to compare whether smugglers were
changing locations or continuing to operate in the same locations
despite operation of the program. In light of these factors, officials
we interviewed cited a several possible reasons for reapprehension
after initial OASISS processing: (1) Mexican authorities may release
alien smugglers received from the Border Patrol when Mexican judges
have not signed arrest warrants for the smugglers; (2) Mexican judges
may require material witnesses to testify or be deposed within 72
hours or the smugglers are released; or (3) there may have been
corruption or bribery of Mexican authorities. Nonetheless, five of the
six Border Patrol officials we interviewed agreed that the OASISS
program has helped disrupt alien smuggling within their areas of
responsibility. Additionally, officials cited increased coordination
with Mexican authorities as a benefit of the OASISS program.
Operation Streamline:
As of August 2009, the Del Rio and Yuma Border Patrol sectors
implemented Operation Streamline for all aliens apprehended along the
border. In other sectors that had Operation Streamline, only aliens
apprehended along a certain portion of the border were processed under
the program. For example, in the Rio Grande Valley sector, only aliens
apprehended along a 45-mile stretch of the sector's border were
processed under Operation Streamline. The five sectors that have
Operation Streamline process relatively few apprehended aliens under
the program. In fiscal year 2008, CBP estimated that 465,951 aliens
were apprehended in the five sectors where Operation Streamline
operated and 36,179, or about 8 percent, were processed through the
program. Border Patrol officials we interviewed told us that the
aliens processed through the program spent anywhere from 10 to 45 days
in jail or in a detention facility. These officials believed that the
greatest result of the program is that it deters aliens from illegally
trying to reenter the United States.
ATEP:
ATEP operates within the San Diego and El Centro, California, sectors
and Yuma and Tucson, Arizona, sectors. CBP reported that during fiscal
year 2008, the Tucson Border Patrol sector returned 5,830 removable
aliens through ports of entry in California. CBP is unsure how many
removable aliens have been processed through this program since its
inception in February 2008.[Footnote 46] While data on the results of
the program are limited, Border Patrol officials we interviewed
believed that the program helped them to disrupt or even remove alien
smuggling organizations from their sectors since smuggled aliens
cannot easily return to their original locations to try and reenter
the United States with the help of the smuggling organizations.
[End of section]
Appendix III: Disposition of Alien Smuggling Cases along the Southwest
Border:
Evaluation of data provided by the Department of Justice (Justice)
provides additional information regarding enforcement consequences for
alien smuggling cases. While OI's current data system does not capture
the number of cases under a particular statute that are referred to
and prosecuted by U.S. Attorneys, sentencing data provided by Justice
contain information on the overall number of cases received, filed,
acquitted, dismissed, terminated, and sentenced under 8 U.S.C. § 1324
from fiscal year 2005 through fiscal year 2009. Table 8 shows that
U.S. Attorneys in the southwest border region received over 3,400
cases from federal law enforcement agencies under 8 U.S.C. § 1324 in
fiscal year 2009. U.S. Attorneys also convicted nearly 3,000
defendants under 8 U.S.C. § 1324 in fiscal year 2009. According to
EOUSA, almost all alien smuggling cases in the southwest border region
are submitted to U.S. Attorneys by either OI or the Border Patrol.
Table 8: Number of Defendants Processed under 8 U.S.C. § 1324 along
the Southwest Border in Fiscal Year 2009:
U.S. Attorney district (FY 2009): Arizona;
Cases received[A]: 493;
Cases prosecuted: 337;
Cases acquitted, dismissed, or terminated: 37;
Convictions: 351.
U.S. Attorney district (FY 2009): California Southern;
Cases received[A]: 942;
Cases prosecuted: 896;
Cases acquitted, dismissed, or terminated: 53;
Convictions: 1,110.
U.S. Attorney district (FY 2009): New Mexico;
Cases received[A]: 96;
Cases prosecuted: 73;
Cases acquitted, dismissed, or terminated: 3;
Convictions: 86.
U.S. Attorney district (FY 2009): Texas Southern;
Cases received[A]: 1,423;
Cases prosecuted: 1,198;
Cases acquitted, dismissed, or terminated: 72;
Convictions: 1,033.
U.S. Attorney district (FY 2009): Texas Western;
Cases received[A]: 462;
Cases prosecuted: 416;
Cases acquitted, dismissed, or terminated: 20;
Convictions: 400.
U.S. Attorney district (FY 2009): Total;
Cases received[A]: 3,416;
Cases prosecuted: 2,920;
Cases acquitted, dismissed, or terminated: 185;
Convictions: 2,980.
Source: GAO analysis of Justice data.
Note: Not all cases received are cases filed within the same fiscal
year, according to Justice officials. Some cases received may remain
pending for an indefinite period of time and then are closed or
terminated without ever being filed in court. Justice does not track
cases received, filed, acquitted, dismissed, terminated, or convicted
by defendant, which means the same individuals whose cases were filed
in fiscal year 2009 may not be those who were acquitted, dismissed,
terminated, or convicted in fiscal year 2009.
[A] Referred by federal law enforcement agency.
[End of table]
As shown in figure 6, the number of alien smuggling cases referred by
law enforcement agencies to U.S. Attorney's offices along the
southwest border peaked in 2006 and has declined each year since then.
The number of cases filed by U.S. Attorneys and the number of
individuals convicted generally increased from fiscal years 2005
through 2008, but declined slightly in fiscal year 2009.
Figure 6: Number of Defendants Processed under 8 U.S.C. § 1324 in
Southwest Border U.S. Attorney Districts from Fiscal Years 2005
through 2009:
[Refer to PDF for image: 4 vertical bar graphs]
Southwest border overall:
Cases received:
FY 05: 3,830;
FY 06: 4,303;
FY 07: 4,188;
FY 08: 3,894;
FY 09: 3,416.
Cases filed:
FY 05: 2,909;
FY 06: 3,345;
FY 07: 3,411;
FY 08: 3,289;
FY 09: 2,920.
Acquitted, dismissed, or terminated:
FY 05: 167;
FY 06: 197;
FY 07: 168;
FY 08: 244;
FY 09: 185.
Convicted:
FY 05: 2,452;
FY 06: 3,055;
FY 07: 2,987;
FY 08: 3,216;
FY 09: 2,980.
Source: GAO analysis of Justice data.
[End of figure]
In fiscal year 2009, the majority of alien smuggling convictions
resulted in a prison term of 2 years or less or no prison at all.
Table 9 illustrates that of the 2,980 alien smugglers convicted in one
of the southwest border districts, 14 percent did not go to prison, 71
percent were sentenced to 1 to 24 months, and 15 percent were
sentenced to more than 24 months of jail time. Conviction statistics
from previous years show that since 2005 the majority of alien
smugglers received prison terms of 2 years or less or no prison at all.
Table 9: Number of Defendants Convicted and Sentenced under 8 U.S.C. §
1324 along the Southwest Border for Fiscal Year 2009:
U.S. Attorney districts: Not imprisoned;
Arizona: 39;
Southern California: 129;
New Mexico: 9;
Southern Texas: 141;
Western Texas: 104;
Total: 422;
Percentage of total: 14.
U.S. Attorney districts: One to 12 months;
Arizona: 98;
Southern California: 443;
New Mexico: 61;
Southern Texas: 377;
Western Texas: 170;
Total: 1,149;
Percentage of total: 39.
U.S. Attorney districts: Thirteen to 24 months;
Arizona: 134;
Southern California: 406;
New Mexico: 13;
Southern Texas: 309;
Western Texas: 83;
Total: 945;
Percentage of total: 32.
U.S. Attorney districts: Twenty-five to 36 months;
Arizona: 34;
Southern California: 95;
New Mexico: 1;
Southern Texas: 123;
Western Texas: 21;
Total: 274;
Percentage of total: 9.
U.S. Attorney districts: Thirty-seven to 60 months;
Arizona: 37;
Southern California: 34;
New Mexico: 1;
Southern Texas: 59;
Western Texas: 17;
Total: 148;
Percentage of total: 5.
U.S. Attorney districts: Sixty-one + months;
Arizona: 9;
Southern California: 3;
New Mexico: 1;
Southern Texas: 24;
Western Texas: 5;
Total: 42;
Percentage of total: 1.
U.S. Attorney districts: Total;
Arizona: 351;
Southern California: 1,110;
New Mexico: 86;
Southern Texas: 1,033;
Western Texas: 400;
Total: 2,980;
Percentage of total: 100.
Source: GAO analysis of EOUSA data.
[End of table]
According to OI, many of these convictions are CBP cases that involve
low-level participants in alien smuggling schemes and these
individuals generally receive lower sentences based on current federal
sentencing guidelines. Also, defendants convicted of alien smuggling
under 8 U.S.C. § 1324 may also have been convicted of other charges,
which could have resulted in higher prison sentences.
[End of section]
Appendix IV: Immigration and Customs Enforcement Office of
Investigations Alien Smuggling Coordination Efforts:
ICE's OI has taken steps over the last 4 years to participate in or
develop coordination efforts, working groups, or task forces that
address alien smuggling. These activities have been primarily focused
on regional border activities where OI has historically encountered
the greatest proportion of alien smuggling violations. The objectives
of these activities and working groups have been to share intelligence
and resources and identify and remove vulnerabilities on the southwest
border. Table 10 summarizes the various OI coordination efforts that
involve alien smuggling.
Table 10: OI's Coordination Efforts That Involve Alien Smuggling:
Coordination efforts: Southwest Border Initiative 2009;
Members: ICE OI, Border Patrol, and Mexican officials;
Focus: To stop contraband, firearms, ammunition, undeclared U.S.
currency, stolen vehicles, and human smuggling violations at ports of
entry and between ports of entry along the U.S.-Mexico border. To do
so, ICE OI temporarily detailed 99 special agents along the southwest
border and in Mexico City.
Coordination efforts: 287(g) Program;
Members: ICE and various state and local law enforcement agencies;
Focus: To delegate the authority to enforce federal immigration laws
to state and local law enforcement agencies.
Coordination efforts: Interagency Working Group on Alien Smuggling and
Trafficking Leverage Subgroup;
Members: ICE, Human Smuggling and Trafficking Center, CBP, U.S. Coast
Guard, Departments of Justice and State, and U.S. intelligence
community agencies;
Focus: To target criminal travel networks that are deemed to present a
national security threat or whose operations pose a significant
humanitarian concern for concerted law enforcement, diplomatic, or
other action.
Coordination efforts: Extraterritorial Criminal Travel Strike Force;
Members: ICE and Justice's Criminal Division;
Focus: To systematically disrupt and dismantle the international and
domestic operations of criminal travel networks, identify and seize
assets and illicit proceeds, and eliminate identified systemic
vulnerabilities exploited by criminal elements to undermine
immigration and border controls through proactive transnational
investigations.
Coordination efforts: Joint Terrorism Task Forces;
Members: ICE, Federal Bureau of Investigation, and a number of other
law enforcement agencies across the federal government;
Focus: To coordinate federal resources in order to gather evidence,
make arrests, provide security for special events, conduct training,
collect and share intelligence, and respond to threats and incidents.
Coordination efforts: Human Smuggling and Trafficking Center;
Members: ICE,CBP, State, Justice, and other federal law enforcement
agencies;
Focus: To provide information in support of the U.S. strategy to
counter alien smuggling.
Source: GAO analysis of ICE documents.
[End of table]
ICE established the Border Enforcement Security Task Forces (BEST) to
investigate any cross-border criminal activity along the southwest
border, including alien smuggling. The BESTs are tasked with
leveraging federal, state, local, tribal, and foreign law enforcement
and intelligence resources in an effort to identify, disrupt, and
dismantle organizations that seek to exploit vulnerabilities in the
border. The task forces include personnel from ICE; CBP; the Drug
Enforcement Administration; the Bureau of Alcohol, Tobacco, Firearms
and Explosives; the Federal Bureau of Investigation; the U.S. Coast
Guard; and U.S. Attorney's Offices along with relevant state, local,
and foreign law enforcement agencies. There are currently 10 BESTs
along the southwest border out of the 15 around the country.
The BEST effort has resulted in a number of cases initiated and
convictions. From 2004 through June 2009, the BESTs initiated 515
cases related to alien smuggling and obtained 395 alien smuggling
convictions. While it is unknown whether these results would have been
achieved without the BESTs, ICE and Border Patrol officials from the
locations we visited cited other benefits to BEST coordination. For
example, ICE officials indicated that prior to the BEST effort, they
had limited coordination on alien smuggling investigations across the
law enforcement agencies involved. However, since the BEST effort
began, the officials stated that they are better able to learn from
one another and to understand the methods used by the various agencies
in performing their missions. Moreover, officials from ICE and Border
Patrol offices we visited told us that agents assigned to the BESTs
are usually colocated, which has facilitated information sharing and
assisted in building working relationships between the two components.
Border Patrol officials also noted that the BESTs allow them to
coordinate on a more formal level, thereby also serving as a built-in
conflict resolving mechanism between the components. Another benefit
of the BESTs is having clearly defined roles and responsibilities
among all of the BEST members, according to ICE officials. This has,
in turn, helped ICE decrease chances for mission creep or performing
duplicative efforts. In addition, ICE and Border Patrol officials told
us that they have been able to share staff from each other's agencies.
For example, officials stated that ICE and the Border Patrol have each
provided staff to augment the other's operations, allowing for
seamless BEST operations.
[End of section]
Appendix V: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
May 11, 2010:
Mr. Richard M. Stana:
Director, Homeland Security and Justice Issues:
441 G Street, NW:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Mr. Stana:
RE: Draft Report GA0-10-328, Alien Smuggling: DHS Needs to Better
Leverage Investigative Resources and Measure Program Performance Along
the Southwest Border (Engagement 440757):
The Department of Homeland Security (DHS/Department) appreciates the
opportunity to review and comment on the draft report referenced
above. The U.S. Government Accountability Office (GAO) made six
recommendations, five of which are directed to DHS, specifically U.S.
Immigration and Customs Enforcement and U.S. Customs and Border
Protection.
Department officials appreciate that GAO recognized the Department's
significant anti-smuggling efforts and that programs have been
established to impact alien smuggling. Opportunities exist to leverage
resources to further combat the problem and better evaluate progress
towards accomplishing our mission.
In order to improve federal efforts to address alien smuggling, GAO
made four recommendations to the Assistant Secretary for Immigration
and Customs Enforcement (ICE), a component within DHS.
Recommendation 1: To better align agency staff responsibilities with
their agency missions and improve efficiency, study the feasibility of
expanding the Law Enforcement Agency Response (LEAR) program along the
Southwest border, and if it is found to be feasible, expand the
program.
Response: ICE concurs. On September 4, 2006, the Phoenix Office of
Detention and Removal Operations (DRO) assumed the role of first
responder to requests for assistance from State and local law
enforcement agencies with the creation of the LEAR Unit. The LEAR Unit
is dedicated solely to providing 24/7 rapid response to other agency
call-outs for ICE assistance in cases with an immigration nexus in the
Phoenix metropolitan area. The LEAR Unit is a unified response by both
DRO and the Office of Investigations (01) in situations involving
smuggling loads, violence, hostage situations and weapons.
ICE has studied the feasibility of expanding the LEAR program to other
areas, such as Los Angeles. Expansion of the program to other areas
would continue to improve ICE's efficiency by aligning the
responsibilities of ICE components in the OI and the DRO in a more
effective manner. The DRO resources could be directed to respond to
immigration”related calls for assistance from State and local law
enforcement agencies. The responsibility would include the processing
of aliens that otherwise have to be processed by OI agents. Currently,
01 is the primary ICE component in Los Angeles that responds to
requests for assistance by State and local law enforcement agencies.
The development of a LEAR program in Los Angeles (as well as other
areas) would provide state and local law enforcement agencies a
mechanism for an immediate ICE response for handling and processing of
aliens that are subject to removal while dedicating OI resources to
the investigation of the crime in which the aliens were involved. The
identification and arraignment of a suspect in a criminal
investigation involving aliens that are smuggled into the U.S. must be
accomplished in a timely manner. A LEAR program would allow OI special
agents to be dedicated to conducting criminal investigations without
having to spend valuable time processing the aliens. However, in order
for the LEAR program to be effective, it must be developed and
coordinated at the level of the Special Agent in Charge (SAC) and DRO
Field Office Director (FOD) responsible for a specific geographic area.
As a first step in potentially expanding the LEAR program, the DRO
Criminal Alien Division (CAD) has moved forward in requesting
resources for an expansion of LEAR nationwide. CAD personnel prepared
and submitted an FY 2012 Resource Allocation Plan (RAP) proposal in
April 2010.
Recommendation 2: To determine whether ICE could utilize Arizona's
financial investigative techniques to address alien smuggling, direct
the Human Smuggling and Trafficking Center (HSTC) or another ICE-
designated entity to conduct an assessment of the Arizona Attorney
General's financial investigations strategy to identify any promising
investigative techniques for federal use.
Response: ICE concurs. On February 11, 2010, the State of Arizona and
Western Union signed a settlement to the long standing litigation
stemming from Arizona's financial investigative strategy related to
alien smuggling. As part of the settlement, Western Union will pay a
fine of over $70 million, $50 million of which will be used to support
anti-money laundering efforts along the Southwest border. During the
week of April 12, 2010, ICE representatives from the field and
headquarters participated in the inaugural meeting of the Southwest
Border Anti-Money Laundering Alliance, a body that is made up of
members of federal, state, and local law enforcement agencies all
along the Southwest border. ICE was an integral part of the conference
whose main purpose was to synchronize enforcement priorities and
investigative techniques along the Southwest border. ICE is committed
to being a significant contributor to this body.
The strategies used by the Arizona Attorney General's office were in
fact developed by U.S. Customs, the US Attorney's Office and the
Arizona Attorney General's office jointly just prior to the merger
creating ICE. Some of the issues with using the techniques arose in
the federal judicial system. Federal judges and prosecutors felt the
use of "damming warrants" based on names of people transferring money
was moving into racial profiling. The tying up of money was also
creating increased violence in the alien smuggling trade. The Arizona
Attorney General's office was able to take the money first and then
give it back if it could be proven that it was obtained legally. The
federal judges felt that if 10% of the money was legitimate they were
uncomfortable seizing all of it and then giving back the money that
was not alien smuggling related.
To continue the methods used by the Arizona Attorney General's office
would require additional US Attorney and judicial support.
Recommendation 3: To better assess 01's progress towards its
investigative goals, develop performance measures for asset seizures
related to alien smuggling investigations.
Response: ICE concurs. ICE is in the process of assessing all of its
performance measures and creating a comprehensive performance plan.
The recently published Quadrennial Homeland Security Review (QHSR) and
extensive work conducted under the Bottom-Up Review (BUR) will help
provide the basis for strategic planning and management controls over
investigative resources.
On March 25, 2010, the ICE Office of Investigations launched Project
STAMP (Smugglers' and Traffickers' Assets, Monies & Proceeds), a new
ICE enforcement initiative aimed at targeting the illicit proceeds
earned by human smuggling and trafficking organizations. Human
smuggling and human trafficking (HS/HT) are primarily motivated by
profit and create substantial risks to the homeland security of the
United States. In an effort to ensure ICE utilizes all the authorities
granted to them as a result of the creation of the DHS, Of is
launching Project STAMP to approach the problems of HS/HT from an
aggressive anti-money laundering stance. Following the money trail
will assist in the identification of a criminal organization and
assets, monies, and proceeds derived from or used in support of
criminal activity.
As part of Project STAMP, ICE 01 is working with U.S. financial
institutions to explore ways in which ICE can productively partner to
better identify and report on the suspicious transaction activity
related to HS/HT organizations. Trends and red flag indicators
identified through the review of HS/HT investigations in coordination
with the ICE Office of Intelligence will be shared with the financial
sector to assist financial institutions in developing the typologies
necessary to proactively target and report HS/HT organizations
attempting to launder their illicit proceeds.
It is a standard goal of all ICE investigations to identify and seize
the assets of the group responsible for the criminal activity, not
just those engaged in alien smuggling. This is reflective of the
practice of using ICE's full investigative authority and expertise in
every case to disrupt and dismantle the criminal enterprise.
However, ICE officials emphasize that development of these performance
measures would need to take into account the differences between alien
smuggling and other criminal activity investigated by ICE. Primary
among these differences is the recognition that the amounts of money
involved in the alien smuggling trade are much smaller than normally
seen when investigating other financial crimes. Even a large scale
alien smuggler will not have the financial footprint that could be
compared with an average narcotics trafficking group. A secondary
consideration would be reflective of the conveyances seized by ICE and
its DHS partners as a result of alien smuggling investigations. These
vehicles are normally far into their life cycle and hold very little
residual value at the point of seizure.
ICE recognizes that performance measures are necessary to gauge the
effectiveness of any program. However, any measure developed must
adequately address the realities of the criminal activity, and not be
part of a uniform standard that is applied to all types of illegal
behavior investigated by ICE. It must also be acknowledged that ICE
must adhere to equity guidelines as well as work with other agencies
such as the Department of Justice and the Department's U.S. Customs
and Border Protection (CBP) to make seizures and perfect the
forfeitures.
Note that previous efforts have been made by DHS/ICE to obtain
congressional approval to extend ICE's authority related to asset
forfeitures.
Recommendation 4: To help ensure that DRO's Mexican Interior
Repatriation Program (MIRP) achieves the results intended, develop
performance measures for the program.
Response: Neither ICE nor CBP concurs. Performance measures for this
program would not be appropriate. The increased levels of illegal
immigration in the Arizona-Sonora area led to its designation as a
"high risk" area, and the high number of deaths of illegal aliens
during fiscal year 2003, served as catalysts for the Interior
Repatriation Program in 2004.
The MIRP program was developed in accordance with Article 5 of the
Memorandum of Understanding (MOU) on the Safe, Orderly, Dignified and
Humane Repatriation of Mexican Nationals signed by the government of
the United States (USG) and Government of Mexico (GOM) on February 20,
2004.
In 2004 and 2005, Customs and Border Protection, Office of Border
Patrol (OBP) conducted the first two iterations of the program.
Subsequently, DHS leadership determined that oversight should be
provided by ICE DRO because of its expertise in alien transportation.
Since then, in FYs 2006, 2007, 2008 and 2009, ICE DRO has worked in
conjunction with OBP to operate this DHS program.
The United States Government and the Government of Mexico discuss
cooperation under M1RP within the context of humanitarian, life saving
efforts and measure the MIRP's success by the reduction in the loss of
human lives in the harsh desert environment, not in the number of
migrants returned or how cost effective the program is. This bi-
national program enables the safe return of non criminal Mexican
migrants apprehended by OBP to their homes in the interior of Mexico.
Any attempt to implement performance measures for MIRP to emphasize
numbers returned would shift its focus away from the program's
original life saving intent, diminish and possibly endanger
cooperation from the Government of Mexico because it would appear to
be "complicit" in the U.S. Government repatriation programs.
To help ensure that CBP alien smuggling related enforcement programs
achieve the results intended, GAO made one recommendation to the
Commissioner.
Recommendation: Establish a plan, including performance measures, with
time frames, for evaluating CBP's enforcement programs.
Response: CBP concurs.
CBP has recently taken important steps towards putting such
measurement tools in place, beginning with the development of a plan
in 2009 to create a Program Performance Framework (PPF) for priority
programs or areas. The PPF strategy will establish certain elements
such as vision and mission statements, goals, objectives, and
performance measures. Subject matter experts from field locations and
Headquarters will collaborate to create the PPF elements, which in
turn must be approved by the Office of Border Patrol (OBP). For at
least a year, baseline data will be collected for all performance
measures; after the conclusion of that time, targets will be set for
the measures. A review of the PPF elements will occur annually to
evaluate whether the program is meeting its goals, objectives and
performance measure targets; and needs the addition of any new goals,
objectives and performance measures or the removal of any goals,
objectives and performance measures no longer needed for program
management.
The PPF strategy was piloted in FY 2009 on both the Operation Against
Smugglers Initiative on Safety and Security (OASISS) program and
Operation Streamline. Both programs have developed PPF elements that
are currently in the approval process. Plans are underway to form a
workgroup to develop a pilot PPF for the Alien Transfer Exit Program
(ATEP). The following is a description of progress made and future
plans for each program.
In a proactive effort to establish performance measures, goals and
objectives for OASISS, OBP hosted two separate workshops ” one in
Tucson, Arizona and one Casa Grande, Arizona, with object matter
experts representing the Border Patrol sectors. The first workshop was
held on July 8-9, 2009, with the second workshop on August 4-5, 2009.
The result was the development of a vision statement, mission
statement, primary goals, numerous supporting objectives, and
performance measures for use in management of the program. The e3
OASISS database program was developed on October 1, 2009 to facilitate
data collection in support of OASISS performance measures. Baseline
data will be collected until the end of FY 2010 and management
approval of the OASISS program performance measures is also
anticipated by December 31, 2010.
Following positive feedback from the OASISS workshops, OBP conducted
workshops for Operation Streamline. Using Washington, DC as the venue,
subject matter experts from the field participated in the first
workshop held on February 3-4, 2010, and the second workshop held on
March 2-4, 2010. The participants developed a vision statement,
mission statement, primary goals, numerous supporting objectives, and
performance measures for use in management of the program. OBP is in
the process of collecting data to establish a baseline, which should
be completed by April 30, 2011. It is anticipated that OBP management
will approve the performance measures by September 30, 2010.
For ATEP, OBP will once again use the pilot PPF strategy to form work
groups consisting of subject matter experts from each sector currently
involved in the program. This group will create the vision and mission
statements, along with primary goals, supportive objectives,
performance measures, and a path forward or next step in the ATEP
program. These activities will be accomplished and draft PPF elements
will be submitted for OBP management approval by December 31, 2010.
The pilot PPF strategy will allow the Border Patrol to export this
framework to other enforcement programs not mentioned in the GAO draft
report. This framework will enable the Border Patrol to proactively
determine what programs will benefit from this process and to initiate
the development of performance measures for those programs. Although
cost effective, the PPF strategy is still dependent on funds
available, and the number of programs reviewed annually will depend on
availability of funds.
Sincerely,
Signed by:
Jerald E. Levine:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Richard M. Stana, (202) 512-8777 or stanar@gao.gov:
Acknowledgments:
In addition to the contact named above, Michael P. Dino, Assistant
Director, and Ben Atwater, Analyst-in-Charge, managed this assignment.
Laurie Choi, James Leonard, and Bintou Njie made significant
contributions to the work. Michelle Fejfar, Amanda Miller and Minette
Richardson assisted with the design, methodology, and data analysis.
Katherine Davis provided assistance in report preparation, and Frances
Cook and Christine Davis provided legal support.
[End of section]
Footnotes:
[1] U.S. Department of Justice, National Drug Intelligence Center,
National Drug Threat Assessment 2008 (Johnstown, Pa., October 2007).
[2] GAO, Combating Alien Smuggling: Opportunities Exist to Improve the
Federal Response, [hyperlink, http://www.gao.gov/products/GAO-05-305]
(Washington, D.C.: May 27, 2005).
[3] SACs are the lead OI investigators who manage designated
geographic regions of responsibility throughout the United States.
Twenty-six SACs are stationed throughout the United States.
[4] The Homeland Security Institute, now referred to as the Homeland
Security Studies and Analysis Institute, is a federally funded
research and development center that provides independent analysis of
homeland security issues. Analytic Services Inc. operates the
institute under contract with DHS.
[5] A port of entry is any location in the United States or its
territories that is designated as a point of entry for aliens and U.S.
citizens.
[6] According to Justice data, of the 3,493 cases prosecuted in fiscal
year 2009 under the federal alien smuggling statute, 2,980 cases (85
percent) were prosecuted by the U.S. attorney districts in Southern
California, Arizona, New Mexico, Southern Texas, and Western Texas.
[7] Pub. L. No. 91-508, tits. I, II, 84 Stat. 1114, 1114-24 (codified
as amended at 12 U.S.C. §§ 1829b, 1951-1959 and 31 U.S.C. §§ 5311-
5332). Enacted in 1970, the BSA provides the U.S. government's
framework for preventing, detecting, and investigating money
laundering. Two purposes of the BSA are 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 to use in their investigations.
[8] Pub. L. No. 108-458, § 7202, 118 Stat. 3638, 3813 (codified at 8
U.S.C. § 1777).
[9] The main exception is prosecution for bringing an alien to the
United States at a place other than a port of entry, which requires
evidence that the defendant actually knew the individual was an alien.
See 8 U.S.C. § 1324(a)(1)(A)(i).
[10] Third or subsequent violations are punishable by a minimum of 5
years and a maximum of 15 years.
[11] If the defendant causes serious bodily injury or places any
person's life in jeopardy during or in relation to a violation, then
the maximum penalty per alien smuggled is 20 years; and if the offense
results in the death of any person, life imprisonment or the death
penalty can be applied. The U.S. Federal Sentencing Guidelines
applicable to section 1324 offenses provide guidance for the
sentencing judge on base penalties below the statutory maximums and
suggest penalty enhancements to apply according to specific factors of
a case, such as the number of aliens smuggled or the use of a firearm
or other dangerous weapon. A recent amendment to the guidelines
effective November 1, 2009, increases penalties for defendants
convicted of alien harboring for the purpose of prostitution, with an
even greater increase if the alien engaged in prostitution is under 18.
[12] Ariz. Rev. Stat. § 13-2319.
[13] In its case management system, OI tracks the number of
investigative hours spent on various criminal investigative
activities. To determine the number of work years, we divided the
number of hours by 2,080--the number of hours equivalent to 1 work
year.
[14] U.S. Immigration and Customs Enforcement, Securing the Border:
Resource Implications for Immigration and Customs Enforcement
(Washington, D.C., March 2008).
[15] GAO, Human Capital: Key Principles for Effective Strategic
Workforce Planning, [hyperlink, http://www.gao.gov/products/GAO-04-39]
(Washington, D.C.: Dec. 11, 2003).
[16] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999).
[17] According to the Office of Personnel Management's position
description for a criminal investigator, applicable to OI
investigators, investigators are to focus primarily on investigating
large-scale criminal networks.
[18] OI officials in the two remaining SAC offices either were
benefiting from a program established to alleviate responses to local
police calls or were operating in a region where the Border Patrol
responds to such calls, rather than OI.
[19] The Homeland Security Act of 2002 created DHS, bringing together
22 agencies and programs responsible for key aspects of homeland
security, including immigration enforcement and service-related
functions. A legacy agency--the former INS--was among the 22 agencies
brought together within DHS. As a result of this merger,
responsibility for immigration enforcement, inspection, and service-
related functions was transferred to three components within DHS--ICE,
U.S. Citizenship and Immigration Service, and CBP.
[20] Treasury's Executive Office for Asset Forfeiture maintains the
Treasury Forfeiture Fund, which is the receipt account for the deposit
of nontax forfeitures made by OI.
[21] [hyperlink, http://www.gao.gov/products/GAO-05-305], 15, 22.
[22] U.S. Immigration and Customs Enforcement, Press Release: Accused
Alien Smuggling Kingpin and Financier Faces U.S. Prosecution (July
2003).
[23] For more information on the extent to which the law enforcement
community finds FinCEN's support useful in its efforts to investigate
and prosecute financial crimes, see GAO, Anti-Money Laundering:
Improved Communication Could Enhance the Support FinCEN Provides to
Law Enforcement, [hyperlink, http://www.gao.gov/products/GAO-10-141]
(Washington, D.C.: Dec. 14, 2009).
[24] [hyperlink, http://www.gao.gov/products/GAO-05-305], 25.
[25] Civil asset forfeiture authority allows the government to seize
real property and initiate a civil action to forfeit the property. It
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 must 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 shifts to the
property owner to prove by a preponderance of the evidence that he or
she was an innocent owner. This 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.
[26] As we noted in our 2005 report, civil forfeiture statutes
applicable to drug trafficking, child pornography, and money
laundering offenses provide for civil forfeiture of real property used
to facilitate the offenses. See GAO-05-305.
[27] MSBs include money transmitters, check cashers, and currency
exchangers. Examples of MSBs include Western Union and MoneyGram.
[28] The BSA requires that each financial institution (including MSBs)
file currency transaction reports in accordance with Treasury
implementing regulations (31 C.F.R. pt. 103). See 31 U.S.C. §§
5313(a), 5312(a)(2)(R); 31 C.F.R. § 103.11(n)(3). These regulations
require a financial institution to file a CTR (FinCEN Form 104)
whenever a currency transaction exceeds $10,000. See 31 C.F.R. §
103.22(b)(1). An MSB must file a SAR for transactions of at least
$2,000 when it knows, suspects, or has reason to suspect that (1) the
funds come from illegal activity or the transaction is intended to
disguise funds from illegal activity, (2) the transaction is designed
to evade BSA requirements or appears to serve no known business or
apparent lawful purpose, or (3) the MSB is being used to facilitate
criminal activity. Beginning in 2002, MSBs were required to file SARs.
See id. § 103.20.
[29] "Coyote" is a term used by law enforcement and smugglers alike as
a synonym for an alien smuggler. The seasonal coyote pattern is the
surge in smuggling activity typically seen during the first 3 to 4
months of the calendar year.
[30] In the Matter of the Money Transmitter License of Western Union
Financial Services, Inc., No. 07F-BD020-SBD, entered August 17, 2006.
[31] State v. Western Union Fin. Servs., Inc., 208 P.3d 218 (Ariz.
2009). Because the Arizona Supreme Court's ruling on the lack of
jurisdiction resolved the case, the court did not review the lower
court's finding of probable cause to issue the warrant or other
grounds for upholding the warrant in response to Western Union's
challenge. See State v. Western Union Fin. Servs., Inc., 199 P.3d 592
(App. 2008) (vacated on other grounds).
[32] At least one lawsuit was filed challenging the legality of the
seizure warrants by individuals who alleged that their transactions
were legitimate and that they tried unsuccessfully to claim their
seized funds. As mentioned previously, one MSB successfully challenged
the seizure of wire transfer funds sent from outside Arizona to
Mexico, and the State of Arizona has brought several actions against
Western Union for failure to comply with its GTOs. On February 11,
2010, the Arizona Attorney General's Office announced a $94 million
settlement agreement with Western Union intended to resolve all
outstanding issues between Western Union and the State of Arizona.
According to an Arizona Attorney General senior litigation counsel, in
addition to its payments totaling $94 million Western Union agreed to
obey a court-appointed monitor's recommendations to improve its anti-
money laundering program in the entire southwest border area,
including northern Mexico, and agreed to supply borderwide transaction
data.
[33] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[34] According to OI officials, ICE strategic plans drafted in 2005
and 2008 have not been approved by ICE management and no time frame
had been established for when a final strategic plan might be issued.
[35] U.S. Immigration and Customs Enforcement, ICE Investigations:
Mission Roles in Multi-Agency Areas of Responsibility (August 2007).
[36] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[37] See GAO, Tax Administration: IRS Needs to Further Refine Its Tax
Filing Season Performance Measures, [hyperlink,
http://www.gao.gov/products/GAO-03-143] (Washington, D.C.: Nov. 22,
2002), 2-3, 46-53.
[38] Immigration and Naturalization Service, The Mexican Interior
Repatriation Pilot Project Western Region Operational Plan (1996).
[39] GAO, Performance Measurement and Evaluation: Definitions and
Relationships, [hyperlink, http://www.gao.gov/products/GAO-05-739SP]
(Washington, D.C.: May 2005).
[40] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[41] The ENFORCE Integrated Database contains biographic and case
information on aliens encountered and booked in ICE and other DHS
component enforcement actions.
[42] The Project Management Institute, The Standard for Program
Management (2006).
[43] See 8 U.S.C. § 1227 for the various classes of deportable aliens
and 8 U.S.C. § 1182 for the various classes of inadmissible aliens,
all of whom are subject to removal from the United States under 8
U.S.C. § 1229a.
[44] SACs are the lead OI investigators who manage designated
geographic regions of responsibility throughout the United States.
Twenty-six SACs are stationed throughout the United States.
[45] The Homeland Security Institute evaluation of MIRP was conducted
before DRO began managing the program in 2006.
[46] CBP provided us with conflicting data regarding the number of
individuals processed through ATEP. We determined that the numbers
were unreliable and hence could only report 2008 data that were
publicly reported by CBP in press releases.
[End of section]
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