oversight

Criminal Aliens: INS' Efforts to Identify and Remove Imprisoned Aliens Continue to Need Improvement

Published by the Government Accountability Office on 1999-02-25.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                            United States General Accounting Office

GAO                         Testimony
                            Before the Immigration and Claims Subcommittee
                            Committee on the Judiciary
                            House of Representatives


For Release on Delivery
Expected at 9:30 a.m. EST
February 25, 1999
                            CRIMINAL ALIENS

                            INS’ Efforts to Identify and
                            Remove Imprisoned Aliens
                            Continue to Need
                            Improvement
                            Statement of Norman J. Rabkin, Director
                            Administration of Justice Issues
                            General Government Division




GAO/T-GGD-99-47
Statement




            Mr. Chairman and Members of the Subcommittee:

            I am pleased to be here today to discuss the Immigration and
            Naturalization Service’s (INS) efforts to initiate and complete removal
                         1
            proceedings for criminal aliens in state and federal prisons through its
                                                   2
            Institutional Hearing Program (IHP). The IHP is a cooperative program
            involving the INS, the Executive Office of Immigration Review (EOIR), and
            federal and state correctional agencies. It was formally established in 1988
            to enable INS and EOIR to complete removal proceedings for criminal
            aliens while they were still serving their sentences, thus eliminating the
            need for INS agents to locate the aliens after their release, and freeing up
            INS detention space for other cases. With the proceedings complete,
            expeditious removal of criminal aliens upon completion of their sentences
            can occur. Federal law requires the Attorney General to initiate and, to the
            extent possible, complete removal proceedings for aggravated felons
            before their release from incarceration. INS has been delegated the
            authority to enforce the immigration laws.

            In 1997, we reported to this Subcommittee that the Immigration and
            Naturalization Service (INS) needed to improve its efforts to identify
            potentially deportable criminal aliens in federal and state prisons and
                                                                           3
            complete the IHP for these aliens before they were released. We based
            this conclusion on our analysis of data provided by the Federal Bureau of
                                          4
            Prisons (BOP) and five states on foreign-born inmates who were released
            from their prison systems between April and September, 1995.

            INS’ Executive Associate Commissioner for Programs told the
            Subcommittee that INS had improved program operations since 1995. In
            response, the Subcommittee asked us to review program performance


            1
             Under revised provisions for the removal of aliens established in the Illegal Immigration Reform and
            Immigrant Responsibility Act of 1996, P.L. 104-208, aliens charged by INS as deportable are now placed
            in “removal” proceedings as opposed to “deportation” proceedings. Proceedings initiated before the
            effective date of the 1996 Act would be in “deportation” proceedings. For consistency, we refer to
            proceedings as removal hearings or proceedings throughout this testimony.
            2
             In June 1998, the IHP was subsumed under a broader program called the Institutional Removal
            Program (IRP). The IRP is to capture data for all removals that originate in an institutional setting,
            including the IHP, reinstatements of prior final removal orders, and administrative removal orders.
            During the period covered by our review, the IRP was proposed but not official. Therefore, this
            testimony provides information almost exclusively on IHP performance.
            3
             Criminal Aliens: INS’ Efforts to Identify and Remove Imprisoned Aliens Need to Be Improved (GAO/T-
            GGD-97-154, July 15, 1997).
            4
                The five states were Arizona, California, Florida, New York, and Texas.




            Page 1                                                                               GAO/T-GGD-99-47
                          Statement




                                                                                              5
                          during 1997. Our report in response to that request was based on foreign-
                          born inmates released from BOP and four states’ prisons between January
                                         6
                          and June, 1997.

                          Although our results indicated that INS’ performance had shown some
                          improvement, we continue to have several of the same concerns about the
                          IHP. In 1997, INS still had not identified many potentially deportable aliens
                          while they were in prison. The majority of these released criminal aliens
                          were aggravated felons, some of whom were reconvicted for new felonies.
                          INS completed the IHP for about half of the released criminal aliens it
                          identified as potentially deportable while they were in prison. Because INS
                          had to detain aliens who did not complete the hearing process in prison,
                          INS incurred approximately $40 million in avoidable detention costs. In
                          addition, INS had not fully implemented the recommendations we made in
                          our 1997 report to improve the IHP.

                          As was the case when we reported to this Subcommittee in July 1997, we
INS Still Failed to       again found that INS had not identified all potentially deportable
Identify All Deportable   imprisoned criminal aliens. As a result, INS did not fully comply with the
Criminal Aliens,          legal requirements that it (1) place criminal aliens who had committed
                          aggravated felonies in removal proceedings while they are incarcerated or
Including Aggravated      (2) take those aggravated felons into custody upon their release from
Felons                    prison.

                          In 1995, INS’ database of deportable aliens did not have records on about
                          34 percent (5,884 of 17,320) of the released inmates included in our
                          analysis who had been identified by the states and BOP as foreign born.
                          About 32 percent of these (1,899) were subsequently determined by INS’
                          Law Enforcement Support Center (LESC) to be potentially deportable
                          criminal aliens.

                          In 1997, INS had no records on 36 percent of such aliens (7,144 of 19,639),
                          of whom 27 percent (1,903) were determined by LESC to be potentially
                          deportable criminal aliens. Although some of these inmates were citizens
                          and some were ordered removed through means other than IHP, a
                          substantial number were aliens on whom INS did not have records.


                          5
                           Criminal Aliens: INS’ Efforts to Remove Imprisoned Aliens Continue to Need Imp0rovement
                          (GAO/GGD-99-3).
                          6
                           We eliminated Arizona from our current study because the Subcommittee request letter specified that
                          we focus on BOP and the four selected states. Arizona accounted for a small number (626 of 17,320) of
                          the total cases in our 1995 analysis.




                          Page 2                                                                           GAO/T-GGD-99-47
                           Statement




                           In 1995, about 33 percent (635) of these potentially deportable criminal
                           aliens for whom INS did not have records were aggravated felons at the
                           time of the analysis, as determined by LESC. In our analysis of 1997 data,
                           63 percent (1,198) of the potentially deportable criminal aliens for whom
                           INS did not have records were identified by LESC as being aggravated
                           felons. According to INS, this increase may be due to the additional crimes
                           classified as aggravated felonies in the 1996 Act. This is important because
                           federal law requires INS to initiate removal proceedings for aggravated
                           felons while they are incarcerated and, to the extent possible, complete
                           deportation proceedings for these felons before their release from prison.

                           According to the INS and EOIR databases, none of the 1,903 potentially
                           deportable criminal aliens had been in removal proceedings while they
                           were in prison or afterward, had been taken into INS custody, or had been
                           deported. LESC provided information on the post-release criminal
                           activities of the 1,198 aggravated felons as follows:

                         • 80 of the 1,198 criminal aliens were rearrested,
                         • 19 of the 80 aliens were charged with committing additional felonies, and
                         • 15 of the 19 were convicted of the felony charges.

                           We asked LESC to provide us with information on the nature of the crimes
                           for which the 80 criminal aliens were rearrested. These included crimes
                           such as assault, robbery, and drug offenses. The types of felonies for which
                           the 15 aliens were convicted included crimes mostly involving drug
                           possession, burglary, theft, and robbery.

                           Our analysis of data from the first 6 months of 1997 revealed that 12,495
INS Did Not Complete       released inmates were, according to INS and EOIR databases, potentially
the IHP For About Half                 7
                           deportable. We found that about 45 percent of these inmates were
of the Released            released from prison with a final deportation order (having completed the
                           IHP), about 3 percent were released from prison without a deportation
Criminal Aliens,           order but with INS’ having completed the removal hearing process, and
Incurring Millions in      about 36 percent were released from prison before INS completed the
Avoidable Detention                                               8
                           process. For the remaining 15 percent of inmates, there was no indication
Costs                      that hearings were completed either before or after prison release. In
                           7
                            INS’ data on the IHP were limited because INS had not identified all individuals who were foreign-
                           born inmates in the BOP and state prison systems and did not maintain a database of these individuals
                           that would enable it to routinely track the IHP status of all potentially deportable inmates. Therefore,
                           as was the case in fiscal year 1995, INS could not readily determine where individuals were in the IHP
                           process, nor could it readily provide summary information on the number of criminal aliens who had
                           committed aggravated felonies.
                           8
                               Numbers do not sum to 100 percent due to rounding.




                           Page 3                                                                              GAO/T-GGD-99-47
                      Statement




                      comparison, our analysis of data for a 6-month period in 1995 revealed that
                      40 percent of 11,436 potentially deportable released inmates completed the
                      IHP with a final deportation order, 3 percent completed the IHP with no
                      deportation order, and 41 percent were released from prison before INS
                      completed the process. There was no evidence of hearings being
                      completed for the remaining 16 percent.

                      Not completing removal proceedings during incarceration means that INS
                      has to use its limited detention space to house released criminal aliens
                      rather than using the space to detain other aliens. INS has acknowledged
                      that it incurs detention costs for housing these aliens; costs that our
                      analyses showed could be avoided. Our analysis of fiscal year 1995 data
                      showed that detention costs of about $37 million could have been avoided
                      for criminal aliens who completed the hearing process after prison release
                      and were deported within 9 months of release. Our analysis of fiscal year
                      1997 data showed that INS could have avoided over $40 million in
                      detention costs for such cases. At least some of the savings in detention
                      costs that INS could realize by processing more criminal aliens through the
                      IHP would be offset by any additional funding that might be required to
                      provide additional resources for the IHP.

                      At the 1997 hearing, the Chairman urged INS to fully implement GAO’s
INS Has Not Fully     recommendations for improving the IHP. As of July 1998, INS had made
Implemented Our       limited progress in doing so.
Recommendations

Nationwide Database   We stated in our July 1997 testimony that INS needed better information
                      about prison inmates--more specifically, information about which inmates
                      are eligible for the IHP and which of these inmates have been and have not
                      been included in the program. Our work at that time showed that INS’
                      databases did not contain complete and current information on the IHP
                      status of individual foreign-born inmates at any given point in time. INS
                      could use this information to determine which of the released foreign-born
                      inmates had been screened for the IHP, identified as deportable, or placed
                      in the hearing process. We recommended that the Commissioner of INS
                      establish a nationwide data system containing the universe of foreign-born
                      inmates reported to INS by BOP and the state departments of corrections
                      and use this system to track the IHP status of each inmate. As of
                      September 1998, INS had begun to establish an automated system for
                      tracking potentially deportable criminal aliens in BOP facilities, but it had
                      not determined whether it will be able to use this system to track
                      potentially deportable criminal aliens in state prison systems.



                      Page 4                                                       GAO/T-GGD-99-47
                              Statement




Controls to Ensure That       The law requires INS to take certain actions regarding criminal aliens who
                              have been convicted of aggravated felonies beyond those actions required
Proceedings For Aggravated    for other criminal aliens. As previously mentioned, INS is required by law
Felons Are Initiated Before   to initiate and, to the extent possible, complete removal proceedings
Prison Release                against aggravated felons while they are incarcerated and to take these
                              felons into custody upon their release. Our work shows, as it did in July
                              1997, that INS had not complied fully with the required provisions of the
                              law. In 1997, we recommended that the Commissioner of INS give priority
                              to aliens serving time for aggravated felonies by establishing controls to
                              ensure that these aliens (1) are identified from among the universe of
                              foreign-born inmates provided by BOP and the states, (2) are placed into
                              removal proceedings while in prison, and (3) are taken into custody upon
                              their release. By September 1998, INS had not taken specific actions to
                              ensure that aggravated felons are placed in removal proceedings while
                              they are incarcerated and then taken into custody upon their release from
                              prison. In its May 1998 performance review, INS stated that priority is
                              given to aliens with early release dates—as opposed to aggravated
                              felons—to ensure that deportable aliens are not released into the
                              community.

Resource Issues               We previously reported to this Subcommittee that INS had established IHP
                              performance goals without having a systematic basis for determining the
                              performance results it could accomplish with various resource levels. We
                              reported that INS had not developed a uniform method for projecting the
                              resources it would need--taking into consideration the level of cooperation
                              from BOP and the states--to achieve its overall goal of completing removal
                              proceedings for every eligible foreign-born inmate before release from
                              prison. We recommended that the Commissioner of INS (1) develop a
                              workload analysis model to identify the IHP resources needed in any
                              period to achieve overall program goals and the portion of those goals that
                              would be achievable with alternative levels of resources and (2) use the
                              model to support its IHP funding and staffing requests. Such a model was
                              to consider several factors, including the number of foreign-born inmates,
                              number of prisons that must be visited, number and types of IHP staff,
                              length of time to process cases, and travel time and costs. We also
                              reported in our July 1997 testimony that INS had a 30-percent attrition rate
                              for immigration agents, which was significantly higher than the 11-percent
                              average attrition rate for all INS staff. We recommended that the
                              Commissioner identify the causes of immigration agent attrition and take
                              steps to ensure that staffing was adequate to achieve IHP program goals.
                              INS completed a draft workload analysis model in June 1998 that IHP
                              managers intend to use to determine what resources are needed to
                              accomplish program goals. INS had not resolved the problem of high



                              Page 5                                                       GAO/T-GGD-99-47
                    Statement




                    attrition among immigration agents, who are considered the backbone of
                    the IHP.

Better Management   We reported to this Subcommittee in July 1997 that INS’ top management
                    (1) had not formally communicated to the district directors how additional
Oversight           staff (e.g., newly hired immigration agents) should be used in the IHP, (2)
                    did not ensure that specific operational goals were established for each
                    INS district director with IHP responsibilities, and (3) did not respond with
                    specific corrective actions when it became apparent that the program
                    would not achieve its goals for fiscal year 1996.

                    Therefore, we recommended that INS establish and effectively
                    communicate a clear policy on the role of special agents in the IHP (e.g.,
                    whether immigration agents were replacements for or supplements to
                    special agents). We also said that INS should use a workload analysis
                    model to set IHP goals for district directors with IHP responsibilities.
                    Furthermore, we said that if it appeared that IHP goals would not be met,
                    INS should document actions taken to correct the problem.

                    However, our work last year showed that INS had not (1) clarified whether
                    immigration agents were replacements for or supplements to special
                    agents in doing IHP work, (2) set IHP goals for district directors in either
                    fiscal years 1997 or 1998 and for regional directors in fiscal year 1998, and
                    (3) specifically addressed the recommendation to document actions taken
                    by the agency when it appeared that the IHP goals would not be met.

                    Despite its assertions at last year’s hearing, INS generally showed limited
Conclusions         improvement in its IHP performance based on our analysis of INS’ 1997
                    program performance. This, coupled with INS’ slow response to our
                    recommendations, suggests that INS still does not know whether it has
                    identified all potentially deportable criminal aliens in the BOP and state
                    prison systems. More importantly, INS still is not doing all it should to
                    ensure that it is initiating removal proceedings for aggravated felons and
                    taking them into custody upon their release from prison.

                    We continue to believe that the recommendations we made in our 1997
                    testimony are valid and that INS should fully implement them as soon as
                    possible.

                    Mr. Chairman, this completes my statement. I would be happy to respond
                    to your questions at this time.




                    Page 6                                                       GAO/T-GGD-99-47
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