Department of Homeland Security 

Office of Inspector General 

Immigration and Customs Enforcement 


Policies and Procedures 


Related to Detainee Transfers
 

OIG-10-13 November 2009 
 

Office of Inspector General 

U.S. Department of Homeland Security

Washington, DC 20528 

 November 10, 2009 

MEMORANDUM FOR: 	 John T. Morton 

 Assistant Secretary 

U.S. Immigration and Customs Enforcement 

FROM: 	 Richard L. Skinner 

 Inspector General 

SUBJECT:	 Letter Report: Immigration and Customs Enforcement 

Policies and Procedures Related to Detainee Transfers 

(OIG-10-13) 

We reviewed Immigration and Customs Enforcement (ICE) detainee transfer policies and 

procedures in response to a request from nongovernmental organizations. These 

organizations reported that some transfers have not complied with ICE National 

Detention Standards and have created hardships for detainees. Our objective was to 

determine whether ICE detention officers properly justify detainee transfers according to 

ICE’s standards. 

Transfer determinations made by ICE officers at the detention facilities are not conducted 

according to a consistent process. This leads to errors, delays, and confusion for 

detainees, their families, and legal representatives. Communication and coordination 

with the Department of Justice’s Executive Office for Immigration Review (EOIR) 

immigration courts regarding detainee status can also be improved to eliminate confusion 

and delays. We are recommending that ICE establish a national standard for reviewing 

each detainee’s administrative file prior to a transfer determination, and that it develop 

protocols with EOIR court administrators for exchanging hearing and transfer schedules. 

The report contains two recommendations. ICE concurred with both recommendations. 

The full text of ICE’s comments can be found in Appendix B. Within 90 days of the date 

of this memorandum, please provide our office with management’s official response to 

the final report. The response should indicate corrective actions planned or taken; other 

supporting information; and, where appropriate, dates for achieving actions and the 

official responsible for implementation of the actions. 

We trust our recommendations will be of assistance as you conduct detention and 

removal operations and provide custody management during removal proceedings. 

Should you have any questions, please call me, or your staff may contact 

Carlton I. Mann, Assistant Inspector General for Inspections, at (202) 254-4100. 
 

Background 

The Immigration and Customs Enforcement (ICE) Office of Detention and Removal 

Operations (DRO) is responsible for arresting, detaining, and removing inadmissible and 

deportable noncitizens (aliens) from the United States. This includes aliens who are 

inadmissible or removable under the Immigration and Nationality Act (INA), guilty of 

certain crimes, in violation of the status in which they were admitted to the United States, 

or who have final orders of removal. Under the INA, certain inadmissible or removable 

aliens are subject to mandatory detention. Those not subject to mandatory detention may 

be detained, paroled, or released on bond or recognizance until a removal determination 

is complete. 

Since its creation in 2003, ICE has detained more than 1.7 million individuals. ICE 

estimates that during FY 2009, more than 442,000 detainees will spend time in ICE 

custody, more than double its first year of operations. ICE transfers detainees to other 

detention facilities to prepare for final removal, reduce overcrowding, or meet the 

specialized needs of the detainee. Recently, the number of detainee transfers has 

increased because of insufficient bed space in some facilities. Most detainees transferred 

owing to overcrowding are sent from eastern, western, and northern state detention 

facilities to locations in the southern and southwestern United States. In FY 2008, ICE 

had an average daily detention population of 31,244. Currently, ICE has a total bed 

capacity of 33,400 through use of its own service processing centers, contracted facilities, 

and local jails under Inter-governmental Service Agreements. 

ICE National Detention Standards outline the policy, applicability, standards, and 

procedures for the transfer of a detainee. ICE must consider the detainee’s security 

requirements, medical needs, legal representation, and requests for a change in venue for 

the removal proceeding.1

 The detention standards state that ICE shall consider 

alternatives to transfer, especially when the detainee is represented by legal counsel and 

where immigration proceedings are ongoing. Legal representatives are required to notify 

ICE and the immigration court that they are the alien’s legal counsel or representative.2 

The standards require that ICE notify the detainee’s legal counsel no later than 24 hours 

after a transfer to another detention facility. 

The Notice to Appear informs the alien of the reasons for arrest, the right to 

representation by counsel at no cost to the government, and the time and location of a 

removal proceeding. According to federal regulations, DRO must determine within 

48 hours of an alien’s arrest whether to issue a Notice to Appear and warrant of arrest and 

whether the alien will remain in custody or be released on bond or recognizance. In 

addition to the reasons for arrest and right to representation, a Notice to Appear must 

contain proof that the alien received the Notice to Appear, confirm that the alien received 

1 On September 12, 2008, ICE introduced new Performance-Based National Detention Standards and was 

implementing these new standards at detention facilities over a 12 month period. 

2

 For ICE, this is Form G-28; for the Executive Office for Immigration Review, this is Form E-28. 

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a list of free (pro bono) legal services available in the district where the hearing will be 

held, and indicate the immigration court in which it is filed. At ICE’s discretion, the 

Notice to Appear may indicate that the notice of the time and place of the removal 

proceeding will be given to the respondent once ICE has filed the Notice to Appear with 

an immigration court. 

Filing the Notice to Appear with the immigration court establishes jurisdiction for the 

removal proceeding. ICE is not required to file the Notice to Appear with the 

immigration court within a specified time after it has been served. ICE may decide for 

operational or other reasons to transfer a detainee from the jurisdiction where the detainee 

was arrested to a detention facility outside of that jurisdiction. For those detainees, ICE 

files the Notice to Appear with the immigration court that has jurisdiction over the 

receiving detention facility. 

Immigration judges from the Department of Justice’s (DOJ) Executive Office for 

Immigration Review (EOIR) conduct removal proceedings. Detainees and legal counsel 

have the right to examine evidence against them, present evidence, and cross-examine 

witnesses. Detainees may challenge their detention by requesting that an immigration 

judge with jurisdiction over the place of detention review and reassess ICE’s custody or 

bond determination. Aliens determined to be inadmissible or removable may apply to the 

immigration court for relief, and may appeal a removal order with the DOJ Board of 

Immigration Appeals or the United States Court of Appeals. In FY 2008, 220 judges 

assigned to 56 immigration courts received 291,781 cases. An increase in cases and only 

a modest increase in immigration judges has created case backlogs and longer detainee 

wait times for proceedings. Because of the high case volume and logistical issues, many 

detainees appear before the court via a videoconference link from their detention facility. 

Results of Review 

ICE/DRO Can Improve the Detainee Transfer Process 

A detainee’s Alien File (A-File) is an important part of the transfer process. The A-File 

contains information regarding the detainee and his or her movement through the 

detention process. ICE detention officers review documentation in an A-File to make a 

determination regarding a detainee transfer. ICE detention standards state that, before 

transferring a detainee, ICE “shall consider alternatives to transfer, especially when the 

detainee is represented by legal counsel and where immigration proceedings are 

ongoing.” 

Detention officers at five ICE Field Offices we visited do not consistently determine 

whether detainees have legal representation or a scheduled court proceeding when 

transferring detainees. EOIR judges and ICE detention officers in transferring 

jurisdictions and the judges and officers at receiving facilities said detainees with legal 

representation and scheduled court proceedings are being transferred to detention 

facilities outside of the scheduling court’s jurisdiction. At one location, court and 

detention officers estimated that this occurs at least once a week. 

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ICE officials said that the transfer of detainees who already have a scheduled court 

hearing occurs because ICE has not received the EOIR notification of the detainee’s 

scheduled court appearance. ICE officials also said that inadvertent detainee transfers 

occur when the detainee’s legal counsel submits a request for a custody or bond hearing 

with the immigration court before submitting a Form G-28, Notice of Entry of 

Appearance as Attorney or Representative, which announces the detainee’s legal 

representative. In these cases, ICE said it is not aware that a detainee has legal 

representation or a scheduled court appearance at the time of transfer. 

The detention officers we interviewed were knowledgeable of the ICE detention 

standards. However, they were not consistently given written guidance regarding what 

specific information to assess in the detainee’s A-file before making a transfer 

determination. ICE officials said that, based on geographic and other factors, directors of 

ICE Field Offices have discretion regarding the guidance and procedures they use to 

manage detainee transfer determinations. Transfer determinations at the ICE Field 

Offices we visited were not consistent. This has resulted in detainees being transferred 

without required A-File documentation, or with pending or outstanding warrants, 

criminal prosecutions, or custody determinations. ICE officers told us that some 

transferred detainees arrive at facilities: 

•	 Without being served an NTA; 

•	 Without proper security classification; 

•	 With active arrest warrants in the previous jurisdiction; 

•	 With pending criminal prosecutions in the previous jurisdiction; 

•	 With final orders for removal that are past 90-day deadlines; 

•	 With 6-month post-removal-order custody determinations that are past 

deadlines; 

•	 With a high probability of being granted bond; 

•	 With incomplete A-file documentation, including files without detainee 

photographs or conviction records; and 

•	 With late or no notification of the transfer location to the immigration court 

or the detainee’s legal representative. 

Staff at ICE Field Offices receiving transferred detainees said that the receipt of 

incomplete A-Files has led to errors, delays, and confusion for detainees, their families, 

legal representatives, and the EOIR courts. When the detainee’s location changes, Notice 

to Appear information on court proceedings and legal services becomes outdated or 

incorrect. Transfers may also create delays in filing the Notice to Appear with an 

immigration court, prolonging the time the detainee remains in detention. 

Detainees transferred with scheduled court appearances have their proceedings 

(1) rescheduled to a date after the detainee is returned to the original court’s jurisdiction; 

(2) conducted in absentia or by videoconference; or (3) withdrawn by legal counsel and 

re-filed in the jurisdiction where the detainee is currently being held. Returning detainees 

to the jurisdictions where a Notice to Appear was first served or re-filing bond or custody 

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determinations creates unnecessary cost and additional time in detention. Officials at one 

Field Office estimated that they return detainees to the sending jurisdiction two or three 

times per week. 

When ICE transfers detainees far from where they were originally detained, their legal 

counsel may request a release from representation because the distance and travel time or 

cost make representation impractical. Transferred detainees have had difficulty or delays 

arranging for legal representation, particularly when they require pro bono representation. 

Difficulty arranging for counsel or accessing evidence may result in delayed court 

proceedings. Access to personal records, evidence, and witnesses to support bond or 

custody redeterminations, removal, relief, or appeal proceedings can also be problematic 

in these cases. 

In June 2008, after detainees’ legal representatives informed the Philadelphia Field Office 

director of concerns regarding transfers, the office developed a written protocol to guide 

transfer decisions. The protocol establishes that: 

•	 Notices to Appear for aliens detained in the ICE Philadelphia Area of 

Responsibility and held in York, PA, will be served at the York EOIR court. 

ICE will not transfer these detainees prior to a judge’s decision. 

•	 Detainees from the ICE Philadelphia Area of Responsibility with final orders 

of removal will be held in York, PA, when the detainee has: 

1.	 Ties or family in the ICE Philadelphia Area of Responsibility. 

Detainees considered to have ties include those who are legal 

permanent residents or have local residences, employment, or 

relatives; 

2.	 An attorney of record with Form G-28 on file; or 

3.	 Pending hearings, or when detainees are eligible for bond and there is 

a high probability that EOIR will grant bond. 

The Philadelphia Field Office director, a representative from the legal community, and 

EOIR personnel said this protocol has helped eliminate many of the problems regarding 

detainee transfers. ICE officers who process detainees at later stages in the transfer 

process said that, as a result of this protocol, required documentation is less frequently 

missing from Philadelphia Field Office A-files. This protocol could serve as a best 

practice for all ICE Field Offices to ensure a standard A-file review prior to detainee 

transfer. 

Some immigration courts and Field Offices have developed localized methods of 

communication and coordination for custody hearings and detainee transfers. Under 

these arrangements, EOIR provides ICE staff with court docket calendars that list all 

custody hearings. When notified in advance, ICE can cancel transfers of detainees with a 

scheduled hearing. ICE also provides courts with lists of detainees scheduled for 

transfer. This helps avoid scheduling custody hearings for detainees who are in the 

process of transfer to another facility. 

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Recommendations 

We recommend that the Assistant Secretary, ICE: 

Recommendation 1: Establish a national standard for reviewing A-files prior to 

transferring a detainee. 

Recommendation 2: Implement a policy requiring Field Offices to develop protocols 

with EOIR court administrators for exchanging custody hearing and detainee transfer 

schedules. 

Management Comments and OIG Analysis 

We obtained written comments on our draft report from the Director of the ICE Audit 

Liaison Office and made changes where appropriate. We have included a copy of the 

written comments in Appendix A. 

ICE concurred with both of our recommendations. ICE intends to publish two advisories 

to all Field Office Directors: (1) to ensure the most current information pertaining to the 

detained alien is forwarded to the receiving law enforcement official in accordance with 

National Detention Standards; and (2) to reinforce the need to coordinate with EOIR 

court administrators. We consider both recommendations resolved and open. 

The intent of recommendation 1 is to ensure that ICE conducts a consistent and thorough 

review of the most current information pertaining to the detainee prior to a transfer 

determination. Therefore, in its planned advisory, ICE should stress that the detention 

officer responsible for the transfer determination will require the detainee’s most current 

information in order to make the decision to transfer the detainee. 

ICE plans to publish an advisory from the DRO Director to Field Office Directors to 

satisfy the intent of recommendation 2. The advisory will reinforce the need for Field 

Office Directors to coordinate with EOIR court administrators. The advisory should 

stress the need for a regular exchange of timely and accurate information useful to both 

ICE and EOIR. We agree with ICE that information sharing with EOIR should take 

place after considering and the detainee’s physical safety and any law enforcementrelated security interests. 

ICE should provide the OIG with the full text of the advisories once they are published. 

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Appendix A 

Purpose, Scope, and Methodology 

We reviewed U.S. Immigration and Customs Enforcement (ICE) 

Office of Detention and Removal policies and procedures related 

to transferring detainees in response to a request from 

representatives of nongovernmental legal organizations. These 

organizations reported that ICE does not adhere to its detention 

standards when transferring detainees. They contend that such 

transfers disrupt and delay removal proceedings, creating hardships 

for detainees. 

Our objective was to determine whether immigration detention 

facilities properly justify detainee transfers according to ICE’s 

Detention Operations Manual. 

We performed fieldwork from October 2008 to February 2009. 

We visited ICE Office of Detention and Removal Field Offices in 

Washington, DC; Philadelphia, PA; Newark, NJ; New York, NY; 

and San Antonio, TX. We visited and observed operations at 

detention facilities in New York, NY; Elizabeth, NJ; York, PA; 

and Pearsall, TX. We visited administrative offices and observed 

immigration proceedings at Department of Justice Executive 

Office of Immigration Review (EOIR) immigration courts in New 

York, NY; Elizabeth, NJ; York, PA; and San Antonio, TX. During 

these visits, we interviewed and collected data from ICE Field 

Office directors, ICE detention and deportation officers and staff, 

EOIR immigration judges and court administrators, government 

lawyers, and immigration attorneys representing detainees. 

We conducted our review under the authority of the Inspector 

General Act of 1978, as amended, and according to the Quality 

Standards for Inspections issued by the Council of Inspectors 

General on Integrity and Efficiency. 

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Appendix B 

Management Comments to the Draft Letter Report 

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Appendix B 

Management Comments to the Draft Letter Report 

8
 
Appendix C 

Major Contributors to This Report 

Bill McCarron, Chief Inspector 

Jim O’Keefe, Senior Inspector 

Preston Jacobs, Inspector 

Jennifer Burba, Inspector 

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Appendix D 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff for Operations 

Chief of Staff for Policy 

Deputy Chiefs of Staff 

General Counsel 

Executive Secretary 

Director, GAO/OIG Liaison Office 

Under Secretary, Management 

Assistant Secretary for Office of Policy 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

Chief Information Officer 

Chief Information Security Officer 

ICE Audit Liaison 

Office of Management and Budget 

Chief, Homeland Security Branch DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees, as 

appropriate 

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ADDITIONAL INFORMATION AND COPIES 

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fax your request to (202) 254-4305, or visit the OIG web site at www.dhs.gov/oig. 

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