ILLEGAL ALIENS

Opportunities Exist to

Improve the

Expedited Removal

Process

United States General Accounting Office

GAO Report to Congressional Committees

September 2000

GAO/GGD-00-176

United States General Accounting Office General Government Division

Washington, D.C. 20548

Page 1 GAO/GGD-00-176 Improve Expedited Removal Process

B-283759

September 1, 2000

The Honorable Orrin G. Hatch, Chairman

The Honorable Patrick J. Leahy

Ranking Minority Member

Senate Committee on the Judiciary

The Honorable Jesse Helms, Chairman

The Honorable Joseph R. Biden, Jr.

Ranking Minority Member

Senate Committee on Foreign Relations

The Honorable Henry J. Hyde, Chairman

The Honorable John Conyers, Jr.

Ranking Minority Member

House Committee on the Judiciary

The Honorable Benjamin A. Gilman, Chairman

The Honorable Sam Gejdenson

Ranking Minority Member

House Committee on International Relations

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, among other

things, included new provisions establishing an expedited removal process for dealing with

aliens who attempt to enter the United States by engaging in fraud or misrepresentation (e.g.,

falsely claiming to be a U.S. citizen or misrepresenting a material fact) or those who arrive

with fraudulent, improper, or no documents (e.g., visa or passport). The new process went

into effect on April 1, 1997, and reduced aliens’ rights to seek review of decisions not to admit

them. As part of this new process, aliens who are subject to expedited removal and assert a

fear of being returned to their home country or country of last residence are to be provided a

credible fear interview. The purpose of this interview is to identify aliens whose asylum

claims have a significant possibility of succeeding.

The International Religious Freedom Act of 1998 (P.L. 105-292) required us to address

selected issues related to aliens who are subjected to the expedited removal process and the

detention of such aliens. We make a recommendation for the Immigration and Naturalization
B-283759

Page 2 GAO/GGD-00-176 Improve Expedited Removal Process

Service to reevaluate its policy for deciding when to release aliens who have a credible fear of

persecution or torture.

Copies of this report are being sent to the Honorable Janet Reno, the Attorney General; the

Honorable Doris Meissner, Commissioner, Immigration and Naturalization Service; the

Honorable Jacob J. Lew, Director, Office of Management and Budget; and other interested

parties. Major contributors to this report are listed in appendix IV. If you need any additional

information or have any questions, please contact me on (202) 512-8777.

Richard M. Stana

Associate Director

Administration of Justice Issues
Page 3 GAO/GGD-00-176 Improve Expedited Removal Process
Executive Summary

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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(the 1996 Act) included provisions to deal with aliens who attempt to enter

the United States by engaging in fraud or misrepresentation (e.g., falsely

claiming to be a U.S. citizen or misrepresenting a material fact) or who

arrive with fraudulent, improper, or no documents (e.g., visa or passport).

This process,1which is called expedited removal, gives Immigration and

Naturalization Service (INS) officers the authority to formally order these

aliens removed from the United States.

The expedited removal process reduces aliens’ rights to seek review of

removal orders. Aliens who are subject to expedited removal but who

express a fear of persecution or torture if they are returned to their home

country or country of last residence are to be provided a credible fear

interview with an asylum officer. The purpose of this interview is to

identify aliens whose asylum claims have a significant possibility of

succeeding. If the asylum officer determines that the alien has a credible

fear of persecution or torture, the alien is referred to a hearing before an

immigration judge where the alien can make a request for asylum. Under

the 1996 Act, INS may either continue to detain or release aliens who are

awaiting their hearings with an immigration judge.

The International Religious Freedom Act of 1998 (P.L. 105-292) requires

GAO to study issues relating to aliens who are subject to expedited

removal and those who have claimed a fear of persecution or torture in

their home country. GAO is to issue its report to the Senate and House

Committees on the Judiciary, the Senate Committee on Foreign Relations,

and the House Committee on International Relations. As agreed with these

committees, this report addresses, among other things,

• INS’ management controls over (1) the expedited removal process and (2)

the credible fear determination process, including those determinations

relating to aliens’ decisions to recant their claims of a fear of persecution

or torture, and

• analysis of aliens who failed to appear before an immigration judge for

their removal hearing after being released from detention.

GAO’s analysis of documentation in 365 randomly selected case files of

aliens who were processed for expedited removal in fiscal year 1999

indicated that INS inspectors were generally complying with requirements

of the expedited removal process at the Los Angeles, John Fitzgerald

1 On April 1, 1997, the expedited removal process was established.

Purpose

Results in Brief
Executive Summary

Page 5 GAO/GGD-00-176 Improve Expedited Removal Process

Kennedy (JFK), and Miami airports and the San Ysidro port of entry.2

These requirements include asking aliens if they feared being returned to

their home country, having a supervisor review the inspectors’ decisions to

remove the alien, and having aliens sign their sworn statements.

In the Los Angeles, Miami, and New York asylum offices, GAO reviewed all

45 cases in which an asylum officer determined that the aliens did not have

a credible fear of persecution or torture (negative credible fear

determinations). In these cases, asylum officers generally complied with

documenting the credible fear process. For example, asylum officers

documented that they generally read mandatory information to the alien

during the interview, and supervisors documented their review of asylum

officers’ decisions.

INS guidance requires that asylum officers document an alien’s wish to

withdraw a claim of a fear of persecution or torture (recanting the claim)

by having the alien (1) make this request in writing or (2) sign a statement

indicating that the decision was voluntary. At the time of GAO’s review,

the guidance did not require that asylum officers document the reasons

aliens stated for the withdrawal. While supervisors were to review

expedited removal orders, they did not have to review aliens’ decisions to

recant their claims. In 8 percent of 10,755 cases, aliens recanted their

claims of a fear of persecution or torture between April 1, 1997, and

September 30, 1999. Some aliens recanted their claims after asylum

officers had determined that their fears were credible and referred their

cases to immigration judges. GAO’s review of 133 randomly selected case

files of aliens who recanted their claims in Los Angeles, Miami, and New

York showed that asylum officers generally complied with INS guidance.

However, the asylum offices varied in the amount of documentation they

obtained from aliens recanting their claims of a fear of persecution or

torture. On the basis of discussions with GAO, in July 2000, INS required

that asylum officers document the alien’s reason for not asking for

protection from being removed from the United States.

INS favors releasing aliens from detention, in cases when an asylum officer

determined those aliens to have a credible fear of persecution or torture if

INS determines the aliens do not pose a risk of flight or danger to the

community. According to 29 of 33 responses of INS district offices to

GAO’s survey, an estimated 3,432 of 4,391 (78 percent) of the aliens, in

cases when asylum officers determined those aliens to have a credible fear

of persecution or torture, were released in fiscal year 1999. GAO’s analysis

2 These ports handled about 44,400 (or 50 percent) of the expedited removal cases in fiscal year 1999.
Executive Summary

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of data on aliens who were found to have a credible fear of persecution or

torture between April 1, 1997, and September 30, 1999, showed that 2,351

aliens were released and had received an immigration judge’s decision. Of

the 2,351 aliens, 1,000 (or 42 percent) of them had not appeared for their

removal hearings. Department of Justice officials pointed out that over

time more cases will be closed in which aliens will have appeared for their

removal hearings; and consequently, this would result in a reduction of the

failure to appear rate, to as low as 25 percent. INS currently has efforts

under way to increase aliens’ appearance rates.

GAO makes a recommendation for INS to reevaluate its policy for when to

release aliens who have a credible fear of persecution or torture. The

Department of Justice stated that the report was fair and accurate.

Aliens seeking admission to the United States at a port of entry generally

are to present documents to INS inspectors showing that they are

authorized to enter. INS can prohibit aliens from entering the United

States for several reasons (e.g., criminal activity or failing to have a valid

visa or passport).

In the years preceding passage of the 1996 Act, concerns were raised about

the difficulty of preventing illegal aliens from entering the United States

and the difficulty of identifying and removing illegal aliens after they had

entered this country. Under expedited removal, INS inspectors can issue

expedited removal orders to aliens who attempt to enter the United States

by engaging in fraud or misrepresentation or who arrive with fraudulent,

improper, or no documents. As part of the expedited removal process, INS

inspectors are to provide the aliens with certain information about the

expedited removal process and to ask them specific questions, such as

whether they fear being returned to their home country or country of last

residence. With few exceptions, aliens cannot request an immigration

judge’s review of INS inspectors’ removal decisions. However, before the

orders are issued to the alien, supervisors are to review inspectors’

removal decisions. In those situations in which an asylum officer has

determined that the alien has a credible fear of persecution or torture, INS

has the option of releasing or continuing to detain the alien. INS favors

release of such aliens provided that the aliens do not pose a risk of flight or

danger to the community.

In conducting its study, GAO reviewed INS’ procedures aimed at helping

ensure that inspectors comply with its expedited removal procedures.

GAO interviewed officials at INS headquarters, one land port of entry (San

Ysidro, CA), and three airports (Los Angeles International, Miami

Background
Executive Summary

Page 7 GAO/GGD-00-176 Improve Expedited Removal Process

International, and New York’s JFK International). In addition, GAO

obtained and reviewed headquarters and local guidance on the processes

and procedures for processing aliens who recant their claims of fear. GAO

also reviewed 133 randomly selected files of 232 aliens who recanted their

claims of fear between October 1, 1998, and September 30, 1999, at the Los

Angeles, Miami, and New York asylum offices. Furthermore, for aliens

found to have a credible fear of persecution or torture between April 1,

1997, and September 30, 1999, GAO determined the number and rate of

aliens who did not appear before an immigration judge for their removal

hearings after being released from detention.

GAO’s review of 365 case files randomly selected from 47,791 fiscal year

1999 case files of aliens who attempted entry at Los Angeles, JFK, and

Miami airports, and San Ysidro port of entry and were charged under the

expedited removal provisions showed that inspectors at these ports

generally complied with INS’ procedures. Specifically, depending on the

port,

• inspectors documented that they had asked the aliens the three required

questions designed to identify a fear of returning to their home country in

84 to 100 percent of the files,

• supervisors reviewed the expedited removal orders in 97 to 100 percent of

the files, and

• the aliens’ signed sworn statements were in 95 to 100 percent of the files.

GAO’s review of all 45 negative credible fear determinations at the Los

Angeles, Miami, and New York asylum offices showed that the asylum

officers documented reading to aliens mandatory information regarding

the (1) purpose of the credible fear interview, (2) the review by the

immigration judge, and (3) torture. For example, the number of times the

asylum officers documented reading mandatory information about the

interview ranged from 21 of 24 times in Los Angeles to all of the times in

the other two offices.

According to INS data on closed cases, between April 1, 1997, and

September 30, 1999, about 8 percent of 10,755 aliens who inspectors

referred for a credible fear interview with an asylum officer later recanted

their claims of a fear of persecution or torture.

INS guidance requires that asylum officers document an alien’s wish to

recant a claim of a fear of persecution or torture by having the alien (1)

GAO’s Analysis

INS Generally Followed Its

Procedures for

Documenting the Expedited

Removal Process at

Selected Ports

INS Generally Followed Its

Procedures for

Documenting the Credible

Fear Process at Selected

Asylum Offices

INS Clarified Requirements

for Documentation Needed

for Aliens Who Recant Their

Fear of Persecution or

Torture
Executive Summary

Page 8 GAO/GGD-00-176 Improve Expedited Removal Process

make this request in writing or (2) sign a statement indicating that the

decision was voluntary. The guidance does not, however, require that

asylum officers document the reason for the withdrawal. However, INS

has the responsibility under the 1996 Act to identify aliens who claim to

have a fear of persecution or torture if they are returned to their home

country and not to return aliens who are found to have such a fear.

Without documentation on the reasons aliens recanted their claims, along

with supervisory review, INS has little assurance that some aliens who

recanted their claims would not be improperly returned home where they

might be subjected to persecution or torture.

The Los Angeles, Miami, and New York asylum offices varied in the

amount of documentation that they obtained from aliens withdrawing their

claims of a fear of persecution or torture and generally complied with INS

guidance. Two locations, New York and Miami, had aliens sign a

standardized letter stating that the alien did not want to go through the

credible fear process and would be allowed to go home as soon as travel

arrangements could be made. The letter also noted that the alien had been

advised that he or she would be barred from reentry into the United States.

The letter also stated that the alien was making the decision freely and

voluntarily and had not been coerced by an immigration officer or any

other person. In Miami, 15 of the 45 files also contained a memorandum

prepared by the asylum officers that summarized the aliens’ reasons for

recanting their claim of fear. In Los Angeles, 37 of the 40 case files

contained statements written or signed by the aliens that described why

they were recanting their claims, or they showed evidence that asylum

officers had asked the aliens about their original claims of a fear of

persecution or torture and recorded the aliens’ responses.

Due to the various ways in which the offices document withdrawals, GAO

could not determine the reasons why aliens recanted their claims of a fear

of persecution or torture for the majority of cases. Therefore, INS also

cannot determine whether it is returning some aliens to a country where

they could be persecuted or tortured.

In discussing this documentation issue, INS said that (1) procedures

requiring a more detailed record of reasons for which aliens recanted their

claims of fear of persecution or torture should implemented and (2) review

by a supervisory asylum officer should be documented. INS said that a

more extensive record might provide a clearer chronology in cases similar

to those that we sampled. Subsequently, on July 26, 2000, INS required

that when an alien decides to stop pursuing protection from removal, an

asylum officer will question the alien about his or her reason and will
Executive Summary

Page 9 GAO/GGD-00-176 Improve Expedited Removal Process

explain the process for removal and the ability of that alien to pursue

protection at any time prior to removal. Further, the asylum officer is to

complete a form that includes the alien’s reason for not asking for

protection from removal and the signature of the supervisory asylum

officer.

In cases when an asylum officer determines that an alien has a credible

fear of persecution or torture and the alien is released from INS custody,

the alien is required to appear at a removal hearing before an immigration

judge. At the removal hearing, the alien is to present his or her claim for

asylum and the immigration judge is to rule on the merits of the claim.

Aliens whose claims are denied are to be removed from the country and

returned to their home country. GAO’s analysis of data on aliens who were

found to have a credible fear of persecution or torture between April 1,

1997, and September 30, 1999, showed that 2,351 aliens were released and

had received an immigration judge’s decision. Of the 2,351 aliens, 1,000 (or

42 percent) of them had not appeared for their removal hearings. In all

1,000 cases in which aliens did not appear for their removal hearings,

immigration judges ordered them removed from the United States in

absentia.

Department of Justice officials pointed out that over time more cases will

be closed in which aliens appeared for their removal hearing; and

consequently, this will result in a reduction of the 42 percent failure to

appear rate. They determined that the failure to appear rate was 34

percent, as of August 10, 2000. They estimated that eventually the rate

would be as low as 25 percent when all the cases are completed. These

data and other studies suggest that many aliens may be using the credible

fear process to illegally remain in the United States.

Aliens who INS did not detain were not likely to be removed from the

country, according to a 1996 report by the Department of Justice’s Office

of the Inspector General. The report stated that, on the basis of its

analysis of fiscal year 1994 data, only 11 percent of aliens who were not

detained were actually removed at the end of removal proceedings, versus

well over 90 percent of those aliens who were detained throughout the

process.

GAO recommends that the Attorney General direct INS to analyze the

characteristics of those aliens who appear and who do not appear for their

removal hearing and to use the results to reevaluate its policy for deciding

when to release aliens in cases when an asylum officer determined the

aliens to have a credible fear of persecution or torture.

Many Released Aliens Did

Not Appear for Their

Hearing

Recommendations
Executive Summary

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The report contains another recommendation to help ensure aliens appear

at their removal hearings.

We provided a draft of this report to the Attorney General for review and

comment. On August 10 and 14, 2000, we met with Department of Justice

officials to obtain Justice’s comments. Overall, the officials stated that the

report was fair and accurate. They suggested a modification of one of our

recommendations to help ensure aliens appear at their removal hearings.

They also provided technical comments, which have been incorporated in

this report where appropriate.

Agency Comments
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Contents

Executive Summary 4

18

Aliens Attempting to Enter the United States at Ports of

Entry

18

Expedited Removal Provision 19

Expedited Removal Process 20

Credible Fear Process 28

Objectives, Scope, and Methodology 30

Agency Comments 36

Chapter 1

Introduction

37

INS Management Controls for Expedited Removal 38

INS Allows Some Aliens to Withdraw Their Applications

for Admission

45

Chapter 2

INS Is Generally

Following Its

Procedures and

Internal Controls For

the Expedited

Removal Process At

Selected Ports

47

Information Related to Aliens Referred to Asylum

Officers

48

INS’ Management Controls Over the Credible Fear

Determination

52

INS Initiated Steps to Improve Controls Over Aliens Who

Withdrew Their Request for a Credible Fear Interview

56

Conclusions 61

Chapter 3

INS Is Generally

Following Its

Procedures Regarding

the Credible Fear

Process at Selected

Asylum Offices

62

INS Policy Favors Release of Credible Fear Aliens

Provided They Meet Certain Conditions

62

Indications Suggest Many Aliens May Be Using the

Credible Fear Process to Illegally Remain in the United

States

67

Chapter 4

INS Released Many

Aliens and Many of

Them Did Not Appear

for Their Hearing Conclusion 72
Contents

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Recommendations 72

Agency Comments 73

74

Facility Conditions 74

Conclusions 78

Chapter 5

Detention Conditions

Varied for Aliens

Subject to Expedited

Removal

Appendix I: Additional Information on Aliens Subject to

Expedited Removal

80

Appendix II: Description of the Violations That Subject

Aliens to Expedited Removal

86

Appendix III: Scope, Methodology, and Additional Results

of Analysis

88

Appendix IV: GAO Contacts and Staff Acknowledgments 106

Appendixes

Table 2.1: Why Did You Leave Your Home Country or

Country of Last Residence?

39

Table 2.2: Do You Have a Fear or Concern About Being

Returned to Your Home Country or Removed From

the United States?

39

Table 2.3: Would You Be Harmed If You Were Returned

To Your Home Country?

40

Table 2.4: Is There Evidence That a Second-line

Supervisor Signed off on the Removal Order in the

File?

41

Table 2.5: Is the Record of Sworn Statement Signed by

the Alien?

41

Table 2.6: Is There Evidence that an INS Port Director or

Assistant Area Port Director Signed off on the

Supervisory Checklist?

42

Table 2.7: Documentation Existed Showing That Credible

Fear Questions Asked

46

Table 2.8: Documentation Existed Showing That INS

Supervisor Signed off on the File

46

Tables

Table 3.1: Most Common Citizenship of Aliens Referred

to Asylum Officers Between April 1, 1997, and

September 30, 1999

49
Contents

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Table 3.2: Percentage of Credible Fear Determinations

by Asylum Offices for Aliens Who Attempted to Enter

the United States Between April 1, 1997, and

September 30, 1999

49

Table 3.3: Number of Cases Where Asylum Officer

Checked That He/She Read Paragraph Explaining the

Purpose of the Interview

53

Table 3.4: Number of Cases Where Asylum Officer

Checked That He/She Read Paragraph on the Process

of Referral/Review by an Immigration Judge

54

Table 3.5: Number of Cases Where Asylum Officer

Checked That He/She Read Paragraph on Torture

54

Table 3.6: Percentage of Recanted Claims by Asylum

Office for Aliens Who Attempted to Enter the United

States Between April 1, 1997, and September 30, 1999

57

Table 4.1: District Practices for Detaining or Releasing

Aliens Who Have a Credible Fear in Fiscal Year 1999

64

Table 4.2: Factors Reported in Decisions to Release or

Detain Aliens

66

Table 5.1: ACA Accreditation of INS-Controlled Facilities 75

Table I.1: Dispositions of Aliens Subject to Expedited

Removal Provision Between October 1, 1998, and

September 30, 1999, at the Nation’s Airports

81

Table I.2: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at John F. Kennedy

Airport

82

Table I.3: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Miami International

Airport

82

Table I.4: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Los Angeles

International Airport

82

Table I.5: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Houston International

Airport

83

Table I.6: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Newark International

Airport

83

Table I.7: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Chicago International

Airport

83
Contents

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Table I.8: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Atlanta International

Airport

84

Table I.9: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at San Francisco

International Airport

84

Table I.10: Top 10 Countries of Citizenship for Aliens

Subject to Expedited Removal at Dallas International

Airport

84

Table I.11: Dispositions of Aliens Subject to Expedited

Removal Provision Between October 1, 1998, and

September 30, 1999, at San Ysidro, CA Port-of-Entry

85

Table III.1: Number of Aliens Who Did or Did Not Recant

Their Claims of Fear of Persecution or Torture, by

Selected Characteristics, and Odds and Odds Ratios

Derived From Them

91

Table III.2: Number of Aliens Who Received Positive and

Negative Credible Fear Determinations From Asylum

Officers, by Selected Characteristics, and Odds and

Odds Ratios Derived From Them

94

Table III.3: Numbers of Cases Recanted and Not

Recanted Resulting in Positive and Negative Credible

Fear Determinations and Odds Derived From Them for

Countries With the Larger Number of Credible Fear

Cases Within Regions

96

Table III.4: File Review Populations and Samples for the

Four Ports of Entry of Aliens Who Were Subject to

Expedited Removal and Were Ordered Removed From

the United States, Fiscal Year 1999

103

Table III.5: File Review Populations and Samples for the

Three Ports of Entry of Aliens Who Were Subject to

Expedited Removal and Were Allowed to Withdraw

Their Applications for Entry, Fiscal Year 1999

103

Table III.6: File Review Populations and Samples for the

Three Asylum Offices of Aliens Who Recanted Their

Fear of Persecution or Torture, Fiscal Year 1999

104

Figure 1.1: Flowchart of the Expedited Removal Process

Under the 1996 Act

22

23

Figures
Contents

Page 16 GAO/GGD-00-176 Improve Expedited Removal Process

Abbreviations

A-number alien number

ACA American Correctional Association

AAP Appearance Assistance Program

ANSIR Automated Nationwide System for Immigration Review

APSS Asylum Pre-Screening System

EOIR Executive Office for Immigration Review

INA Immigration and Nationality Act

INS Immigration and Naturalization Service

INSpect Program for Excellence and Comprehensive Tracking

JFK John Fitzgerald Kennedy International Airport

OIA Office of Internal Audit

SPC Service Processing Centers

UNHCR United Nations High Commissioner for Refugees
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Chapter 1

Introduction

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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(the 1996 Act), which amended the Immigration and Nationality Act (INA),1

as amended, was enacted September 30, 1996, (P.L. 104-208). Among other

things, the 1996 Act included a provision, which is called expedited

removal, for dealing with aliens who attempt to enter the United States by

engaging in fraud or misrepresentation (e.g., falsely claiming to be a U.S.

citizen or misrepresenting a material fact) or those who arrive with

fraudulent, improper, or no documents (e.g., visa or passport). The

expedited removal provision, which went into effect on April 1, 1997,

reduces an alien’s right to seek review of a determination of inadmissibility

decision.

In the years preceding the passage of the 1996 Act, concerns were raised

about the difficulty of preventing illegal aliens from entering the United

States and the difficulty of identifying and removing illegal aliens after they

had entered this country. The expedited removal process was designed to

prevent aliens who attempt to enter the United States by engaging in fraud

or misrepresentation or who arrive without proper documents from

entering this country at our ports of entry.

The Immigration and Naturalization Service (INS) and immigration judges

have roles in implementing the provisions of the 1996 Act relating to the

expedited removal of aliens. INS’ responsibilities include (1) inspecting

aliens to determine their admissibility and (2) reviewing the basis and

credibility of aliens who are subject to expedited removal but who claim a

fear of persecution or torture if returned to their home country or country

of last residence.2

Aliens can request that immigration judges review INS’

negative credible fear determinations. Immigration judges, who report to

the Chief Immigration Judge, are in the Executive Office for Immigration

Review (EOIR), within the Department of Justice. The immigration judges

are located in immigration courts throughout the country.

Aliens who want to be admitted to the United States at a port of entry are

required to establish admissibility to an inspector. INS has about 4,900

inspectors and about 250 staffed ports of entry. Generally, aliens provide

inspectors with documents that show they are authorized to enter this

country. At this primary inspection, an INS inspector either permits the

aliens to enter the country or sends the aliens to another inspector for a

more detailed review of their documents or for further questioning. The

1

8 U.S.C. 1101, et seq.

2

For the purposes of this report, we use the term “home country” in referring to the aliens’ home

country or their country of last residence.

Aliens Attempting to

Enter the United States

at Ports of Entry
Chapter 1

Introduction

Page 19 GAO/GGD-00-176 Improve Expedited Removal Process

more detailed review is called secondary inspection. In deciding whether

to admit the alien, the INS inspector is to review the alien’s documents for

accuracy and validity and check INS’ and other agencies’ databases for any

information that could affect the alien’s admissibility. After reviewing the

alien’s documents and interviewing the alien at the secondary inspection,

the inspector may either admit or deny admission to the alien or take other

discretionary action. INS can prohibit aliens from entering the United

States for several reasons (e.g., criminal activity or failing to have a valid

visa, passport, or other required documents). Inspectors have discretion to

permit aliens to (1) enter the United States under limited circumstances

although they do not meet the requirements for entry (paroled) 3

or (2)

withdraw their applications for admission and depart the country.

Under the 1996 Act, an INS inspector can issue an expedited removal order

to aliens who (1) are denied admission to the United States because they

engage in fraud or misrepresentation or arrive without proper documents

when attempting to enter this country and (2) do not express a fear of

returning to their home country. INS is to remove the alien from this

country.4

Generally, aliens who do not express a fear of being returned to

their home country cannot have a review of INS’ decisions.5 Between April

1, 1997, and September 30, 1999, about 190,000 aliens who attempted to

enter the country were given expedited removal orders.6 Further

information on the characteristics of aliens who were removed can be

found in appendix I. The specific violations (i.e., aliens attempting to enter

the United States by engaging in fraud or misrepresentation or arriving

without proper documents) under the 1996 Act that could subject the alien

to an expedited removal order are discussed in appendix II.

3

Parole is a procedure used to temporarily admit an inadmissible alien into the United States, for

emergency reasons or when in the public interest.

4

There are other reasons why INS may find an alien inadmissible (e.g., criminal activity). However,

expedited removal orders can only be issued to aliens whom INS finds inadmissible because the aliens

attempted to enter the United States by engaging in fraud or misrepresentation or arrived without

proper documents at the U.S. ports of entry. If INS includes any other charge against an alien, the alien

cannot be processed under expedited removal procedures. INS is not required to charge an alien with

all of the grounds under which it finds the alien inadmissible. With its new authority under the 1996 Act

to issue expedited removal orders, INS’ guidance to its inspectors states that, generally, if aliens are

inadmissible because they attempted to enter the United States by engaging in fraud or

misrepresentation or arrived without proper documents, additional charges should not be brought, and

the alien should be placed in the expedited removal process.

5

An alien can request an immigration judge’s review of an inspector’s decision if the alien swears under

oath to be a U.S. citizen or to have lawful permanent residence, refugee, or asylee status. If the judge

finds that the alien is not a U.S. citizen or does not have lawful permanent residence, refugee, or asylee

status, then the alien will be subject to expedited removal.

6

Expedited removal orders were issued to about 23,100 aliens in fiscal year 1997 (April through

September), to about 76,700 aliens in fiscal year 1998, and about 89,000 aliens in fiscal year 1999.

Expedited Removal

Provision
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Page 20 GAO/GGD-00-176 Improve Expedited Removal Process

Under the 1996 Act, aliens who are issued an expedited removal order

generally are barred from reentering this country for 5 years. However,

under the 1996 Act aliens are allowed to request permission to reapply for

admission to this country during the 5-year period.7

The expedited removal provision also established a process for aliens who

express a fear of being returned to their home country and who are subject

to expedited removal. Inspectors are to ask specific questions and to look

for signs from the aliens of fear of being returned to their home country

and, if aliens exhibit such a fear, inspectors are to refer the aliens to an INS

asylum officer for an interview to determine whether the aliens have a

credible fear of persecution or torture or harm if returned to their home

country. This is called a credible fear interview. The term “credible fear of

persecution” is defined by statute as “a significant possibility, taking into

account the credibility of the statements made by the alien in support of

the alien’s claim and such other facts as are known to the officer, that the

alien could establish eligibility for asylum under Section 208” of the INA.8

INS has about 400 asylum officers who are involved with the asylum

process. About 300 of these officers have been trained to conduct credible

fear interviews. INS has eight asylum offices nationwide.

From April 1, 1997, to September 30, 1999, INS inspected about 28.3 million

aliens per month at ports of entry.9 INS referred about 601,000 of these

aliens to secondary inspection; about 62,900 were not admitted.

Under the 1996 Act, on behalf of the Attorney General, the Commissioner

of INS carries out the responsibilities to issue expedited removal orders

against aliens classified as “arriving aliens.” Justice regulations have

defined arriving aliens as those who seek admission to or transit through

the United States at a port of entry10 or those who are interdicted in

international or U.S. waters and are brought to this country. The 1996 Act

also allows expedited removal orders to be issued to aliens who have

entered the United States without being inspected or paroled at a port of

7

The 1996 Act also increased the penalties for aliens who were removed under other provisions of the

law.

8

8 U.S.C. 1225.

9

These inspections were done at primary inspection.

10The 1996 Act excludes from expedited removal Cuban nationals who arrive at a port of entry by

aircraft.

Expedited Removal

Process
Chapter 1

Introduction

Page 21 GAO/GGD-00-176 Improve Expedited Removal Process

entry.11 INS determined that it would not apply expedited removal orders

to the last category of aliens—namely, those who entered the United

States without inspection or parole.

The 1996 Act defines when INS can use expedited removal orders for

arriving aliens. As discussed below, INS has established procedures for

implementing the provisions, such as requiring inspectors to read specific

information to the aliens. Figure 1.1 shows the expedited removal process,

including the credible fear process.

11The 1996 Act only permits INS to issue expedited removal orders against aliens who have been in the

United States for less than 2 years.
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Page 22 GAO/GGD-00-176 Improve Expedited Removal Process

Figure 1.1: Flowchart of the Expedited Removal Process Under the 1996 Act
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Introduction

Page 23 GAO/GGD-00-176 Improve Expedited Removal Process

Note: Withdrawals can also occur at later stages in the expedited removal process.

Sources: Information provided in discussions with INS officials and review of INS documentation.
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Introduction

Page 24 GAO/GGD-00-176 Improve Expedited Removal Process

According to INS’ regulations and implementing instructions, when an

inspector plans to issue an expedited removal order to an alien, the

inspector is to follow certain steps, as shown below:

• Explain the expedited removal process to the alien and read the statement

of rights and consequences in a language the alien can understand.

Included in this statement are the facts that the alien may be immediately

removed from this country without a hearing and, if so, may be barred

from reentering the country for 5 years or longer; that this may be the

alien’s only opportunity to present information to the inspector before INS

makes a decision; and that if the alien has a fear or concern about being

removed from the United States or being sent to his or her home country,

the alien should tell the inspector during this interview because the alien

may not have another chance to do so.

• Take a sworn statement from the alien, which is to contain all pertinent

facts of the case. As part of the sworn statement process, the inspector

provides information to the alien, interviews the alien, and records the

alien’s responses. The inspector is to cover and document in the sworn

statement topics such as the alien’s identity and reasons for the alien being

inadmissible into the United States; whether the alien has a fear of

persecution or torture or return to his or her home country; and the INS

decision (i.e., issue the alien an expedited removal order, refer the alien for

a credible fear interview, permit the alien to withdraw his or her

application for admission, admit the alien into the country, allow him or

her to apply for any applicable waiver, or defer the inspection or otherwise

parole the alien).

When the inspector completes the record of the sworn statement, he or

she is to have the alien read the statement, or have it read to the alien, and

have the alien sign and initial each page of the statement and any

corrections that are made. The inspector is to provide a copy of the signed

statement to the alien. The alien is to be given an opportunity to respond to

INS’ decision.

• Complete other administrative processes and paperwork, including the

documents needed to remove the alien.

• Present the sworn statement and all other related paperwork to the

appropriate supervisor for review and approval.

Steps in the Expedited

Removal Process
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As previously discussed, INS instructions require that the inspector is to

refer an alien for an interview with an asylum officer if, for example, the

alien indicates a fear of returning to his or her home country or an intent to

apply for asylum. The asylum officer is to determine if the alien has a

credible fear of persecution or torture. Immigration officers referred

11,104 aliens who requested admittance to the United States between

April 1, 1997, and September 30, 1999, for a credible fear interview.

According to INS, to determine if an alien should be referred to an asylum

officer for a credible fear interview, the inspector is to consider any

statement or signs, verbal or nonverbal, that the alien may have a fear of

persecution or torture or a fear of returning to his or her home country.

The questions that the inspector is required to ask and to record were

designed to help determine whether the alien has such a fear. These

questions are as follows:

• Why did you leave your home country or country of last residence?

• Do you have any fear or concern about being returned to your home

country or being removed from the United States?

• Would you be harmed if you are returned to your home country or country

of last residence?

According to INS guidance, if the alien indicates that he or she has a fear

or concern or intends to apply for asylum, the inspector may ask additional

questions to ascertain the general nature of the alien’s fear or concern. The

alien does not need to use the specific terms “asylum” or “persecution” for

the inspector to refer the alien for a credible fear interview, nor does the

alien’s fear have to relate specifically to one of the five bases contained

within the definition of refugee, which are the legal basis for an asylum

determination.12 INS training materials note that there have been many

cases in which asylum was ultimately granted that may not have initially

appeared to relate to the definition of asylum. INS further requires that the

inspector should not make eligibility determinations or weigh the strengths

or credibility of the alien’s claim. Additionally, the inspector should err on

the side of caution and refer all questionable cases to the asylum officer.

When an inspector is going to refer an alien for a credible fear interview,

the inspector is to process the alien as an expedited removal case.13

12As discussed later in this chapter, for an asylum officer to find that the alien has a credible fear of

persecution or torture, the alien’s fear must be related to one of the five bases (or grounds) listed in the

refugee definition.

13The expedited removal order is not issued at this time.

Need to Identify Potential

Asylum Seekers
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Page 26 GAO/GGD-00-176 Improve Expedited Removal Process

Additionally, the inspector is to explain to the alien, in a language the alien

understands, information about the credible fear interview, including (1)

the alien’s right to consult with other persons, (2) the alien’s right to have

an interpreter, and (3) what will transpire if the asylum officer finds that

the alien does not have a credible fear of persecution or torture. This

information is contained in an INS form that the inspector is to give the

alien. The inspector also is to provide the alien with a list of free legal

services, which is prepared and maintained by EOIR.

Generally, INS requires that aliens who are subject to expedited removal

should be processed immediately unless they claim lawful status in the

United States or a fear of return to their home country. Those aliens who

arrive at air and sea ports of entry who are to be removed from the United

States are to be returned by the first available means of transportation.

Aliens arriving at land ports of entry who are ordered removed usually

should be returned to the country from which they tried to enter (i.e.,

Canada or Mexico). If the inspector is unable to complete the alien’s case

or transportation is not available within a reasonable amount of time from

the completion of the case, the inspector is to send the alien to an INS

detention center or other holding facility until he or she can complete the

case or remove the alien. Parole may only be considered on a case-by-case

basis for medical emergencies or for legitimate law enforcement

purposes.14

An expedited removal order is not the only option available for the

inspector to apply to aliens who are inadmissible because they attempted

to enter the United States by engaging in fraud or misrepresentation or

arrived without proper documents. Depending upon the specific violation,

the options available to the inspector include (1) allowing the alien to

withdraw his or her application, (2) processing a waiver, (3) deferring the

inspection, or (4) paroling the alien into the United States. Normally, INS

can refer these aliens to an immigration judge only if the alien is found to

have a credible fear of persecution or torture or the alien swears under

oath to be a U.S. citizen or to have lawful permanent resident, refugee, or

asylee status, and that status has been verified. For those aliens whom

the inspector cannot verify the alien’s claim to be a U.S. citizen or to have

14A legitimate law enforcement purpose could include paroling the alien into the custody of another law

enforcement agency for prosecution of the alien or for having the alien testify or assist the government

in the prosecution of a criminal matter.

Removal of Aliens Served

an Expedited Removal

Order

Other Options Available in

Lieu of Expedited Removal
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Page 27 GAO/GGD-00-176 Improve Expedited Removal Process

lawful permanent residence, refugee, or asylee status, the alien is sent to

an immigration judge only for a review of the expedited removal order.15

On December 22, 1997, INS issued additional guidance on when an

inspector should offer aliens an opportunity to withdraw their application

for admission. According to this guidance, the inspector should carefully

consider all facts and circumstances related to the case to determine (1)

whether permitting withdrawal would be in the best interest of justice, or

(2) whether justice would be ill-served if an order of removal (such as an

expedited removal order) were issued. Factors to consider in making this

decision may include, but are not limited to, previous findings of

inadmissibility against the alien, the alien’s intent to violate the law, the

alien’s age or health, and other humanitarian or public interest

considerations. The guidance further states that ordinarily, the inspector

should issue an expedited removal order when the alien has engaged in

obvious, deliberate fraud. If the alien may have innocently or through

ignorance, misinformation, or bad advice obtained an inappropriate visa

and did not conceal information during the course of the inspection,

withdrawal should ordinarily be permitted. Between October 1, 1997, and

September 30, 1999, about 151,000 aliens subject to expedited removal

were permitted to withdraw their applications for admission.16 For more

information on the characteristics of aliens allowed to withdraw, see

appendix I.

On January 3, 1997, INS issued proposed rules regarding the

implementation of the 1996 Act, including the expedited removal process.

On March 6, 1997, INS issued its interim rules on the implementation of the

1996 Act, including the expedited removal process.17 According to an INS

Headquarters official, these interim rules were still in effect at the time of

our review.

INS developed and distributed specific guidance for its inspectors on how

to implement the expedited removal process. This guidance was

15 The inspector is to issue these aliens an expedited removal order and refer them to an immigration

judge to review the order. If the immigration judge determines the alien has never been admitted as a

lawful permanent resident or as a refugee, has not been granted asylum status, or is not an U.S. citizen,

INS is to remove the alien. If the judge determines the alien was admitted as a lawful permanent

resident or as a refugee, was granted asylum status, or is an U.S. citizen, the judge is to cancel the

expedited removal order.

16INS did not begin to report data on the number of aliens subject to expedited removal who were

permitted to withdraw until fiscal year 1998. About 72,000 were permitted to withdraw in fiscal year

1998, and about 79,000 were permitted to withdraw in fiscal year 1999.

17 The effective date of these rules was April 1, 1997.

Guidance and Training
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Page 28 GAO/GGD-00-176 Improve Expedited Removal Process

incorporated into the training that INS developed for its officers on the

1996 Act. The training information on the expedited removal process

included instructions on who would be subject to expedited removal, what

information should be obtained in a sworn statement, and when an alien

should be referred to an asylum officer for a credible fear interview.

According to INS, the agency has trained all of its inspectors on expedited

removal. INS has modified its existing inspector basic training for newly

hired employees to include the expedited removal process.

Inspectors are to refer aliens who have expressed a fear of persecution or

torture to an asylum officer for a credible fear interview. Under current

operating instructions, that interview can be held no sooner than 48 hours

after the alien has arrived to allow the alien an opportunity to recover from

the rigors of travel and, if desired, to consult with friends, family, or other

advisors, which may include attorneys.18 Before holding the credible fear

interview, asylum officers are required to (1) inform aliens about the

credible fear and asylum processes; (2) inform aliens of their option to

obtain a consultant who can be a lawyer, friend, relative, or anyone of the

aliens’ choosing; and (3) provide a list of people and organizations that

provide legal services. According to an INS official, at some locations, this

information is provided during an orientation. The regulations require INS

to provide interpreters in the credible fear interviews, when necessary.

In a credible fear interview, the 1996 Act requires the asylum officer to

decide whether there is a significant possibility that the alien could

establish eligibility for asylum. To make this determination, INS requires

the asylum officer to consider whether a significant possibility exists that

(1) the alien’s statements are credible (i.e., that the alien’s testimony is

consistent, plausible, and detailed); (2) the alien was persecuted in the

past or there is a reasonable possibility the alien would be persecuted in

the future; 19 and (3) the alien’s fear is related to one of five bases for

obtaining asylum—persecution or torture because of race, religion,

nationality, political opinion, or membership in a particular social group. In

addition, the asylum officer is to read mandatory information about the

process, the right to appeal a negative credible fear determination to an

immigration judge, and the fear of being tortured. The asylum officer is to

18 However the alien can choose to waive this right and request an earlier credible fear interview.

19INS’ regulations that took effect March 22, 1999, (64 Fed. Reg. 8, 478 (1999)) amended the credible

fear screening provisions to ensure that an arriving alien subject to the expedited removal process will,

when appropriate, be considered for protection under the Convention against Torture. The amended

regulations expanded the credible fear screening to include a screening for credible fear of torture, as

well as for credible fear of persecution.

Credible Fear Process
Chapter 1

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Page 29 GAO/GGD-00-176 Improve Expedited Removal Process

read aloud the mandatory paragraphs from an INS form on which the

officer also records the results of the credible fear interview.

INS’ training materials state that it may be helpful to think of the standard

as a net that will capture all potential refugees and individuals who would

be subject to torture if returned to their country of feared persecution or

harm. Such a protective net may also capture nonrefugees and individuals

that may not be subject to torture. The purpose of this standard is to

guarantee the identification of all persons who could be classified as

refugees or who require protection from torture under the United States’

international obligations. The materials also note that the legislative

history of the 1996 Act indicated that the credible fear of persecution

standard is intended to be a low screening standard for admission into the

usual full asylum process.

The asylum officer is to record the results of the credible fear interview,

including (1) a determination of the alien’s ability to establish past harm or

fear of future harm, with a potential connection between the harm

experienced or fear to any of the five grounds for asylum or (2) where

applicable, a determination of whether the alien has a significant

possibility of establishing eligibility for protection under the Convention

against Torture. INS requires supervisory review of asylum officers’

credible fear determinations.20

If the asylum officer finds that the alien has a credible fear of persecution

or torture, the alien will be placed in removal proceedings21 before 1 of

about 117 immigration judges. During these proceedings, the alien can

make a formal application for asylum. The application for asylum generally

must be submitted within 1 year of arriving in the United States.22 During

these proceedings, the immigration judge is to decide whether the alien’s

asylum claim warrants his or her being granted asylum in the United

States. If the asylum officer finds that the alien does not have a credible

fear, the alien has a right to request that an immigration judge review the

negative credible fear determination. If the alien does not request a review

of the credible fear determination, the alien is subject to expedited

removal. According to INS, asylum officers have been instructed that

aliens who refuse to sign papers or seem confused by the process or

20INS requires that when either an asylum officer or his or her supervisor determines that an alien has a

credible fear, the alien is to be referred for a removal hearing before an immigration judge.

21The 1996 Act merged deportation and exclusion proceedings into a single removal proceeding.

22 If the alien demonstrates the existence of changed circumstances relating to the delay in filing the

application, the application does not have to be filed within the required period of time.
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Page 30 GAO/GGD-00-176 Improve Expedited Removal Process

undecided about whether to request a review should receive a review

unless they are requesting to be sent home.

In cases where the alien requests a review of an asylum officer’s negative

credible fear determination, the immigration judge is to review this

determination. During this review, the immigration judge may receive into

evidence any relevant written or oral statements. If the immigration judge

agrees with the asylum officer’s negative credible fear decision, the alien

cannot appeal the immigration judge’s decision and is to be removed

through the expedited removal process. If the immigration judge disagrees

with the asylum officer’s negative credible fear decision, the alien is to be

placed in removal proceedings, during which he or she can apply for

asylum. During the immigration judge’s review, at the discretion of the

immigration judge, the alien may enlist the aid of a consultant in the

review process.

In some cases, aliens decide to withdraw their requests for a credible fear

interview later in the process. In such cases, INS requires that immigration

officers document that the alien had not been coerced and was voluntarily

withdrawing his or her claim. These aliens may then be placed in

expedited removal.

Generally, the 1996 Act requires INS to detain aliens who are subject to

expedited removal and who express a fear of persecution or torture until

they are removed from the country or permitted to remain in the country.23

These aliens are initially detained at the port of entry during the inspection

process and then transported to a detention facility to await an interview

by an asylum officer, unless release24 is required to meet a medical

emergency or legitimate law enforcement objectives. If an asylum officer

determines that the alien has a credible fear of persecution or torture,

detention is no longer mandatory. The INS district director, chief patrol

agent, or officer in charge has the discretion to release such aliens for

whom an asylum officer determined that a credible fear existed, provided

there is a determination by an INS district officer the alien is likely to

appear for the removal hearing and does not pose a risk to the community.

The International Religious Freedom Act of 1998 (P.L. 105-292) requires us

to study issues relating to aliens who are subject to expedited removal and

those who have claimed a fear of persecution or torture. In addition, our

23 Generally, aliens who are subject to expedited removal and do not express a fear of persecution or

torture are to be detained until they are removed from the country.

24 This is parole of aliens into the United States either on bond or on their own recognizance.

Objectives, Scope, and

Methodology
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Page 31 GAO/GGD-00-176 Improve Expedited Removal Process

study is to address issues related to their detention. We are to issue our

report to the Senate and House Committees on the Judiciary, the Senate

Committee on Foreign Relations, and the House Committee on

International Relations. We agreed with these committees to review

• INS’ management controls over the expedited removal process, including

those related to INS’ decision on whether to permit aliens the option of

withdrawing their application for admission;

• INS management controls over the credible fear determination process,

including those relating to aliens’ decisions to recant their claims of a fear

of persecution or torture; and the results of the credible fear process; and

• factors related to aliens who (1) were subjected to the credible fear

process and the effect of those factors on the results of the credible fear

determination and (2) were subjected to the credible fear process and

subsequently recanted their claim of a fear of persecution or torture and

the effect of those factors on the aliens' decision to recant their claim.

Concerning the detention of aliens during the expedited removal process,

we agreed to provide data on

• the number of aliens INS detained and the basis for INS’ detention

decisions, including the criteria INS used in making its detention decisions;

• the number of aliens who failed to appear before an immigration judge for

their removal hearing after being released from detention; and

• the conditions of the facilities INS used to detain aliens.

To determine the management controls in place to help ensure that

inspectors and asylum officers comply with proper expedited removal and

credible fear procedures, we interviewed key officials at INS headquarters

and at one land port of entry (San Ysidro, CA); three airports—Los

Angeles International, Miami International, and New York’s John

Fitzgerald Kennedy (JFK) International; and the three asylum districts that

conduct credible fear interviews for the San Ysidro land port and the Los

Angeles, Miami, and New York airports.

We judgmentally selected these four ports to include a large number of

entries by aliens, geographically diverse areas, and the two major types of

ports of entry (land ports and airports). According to INS, these ports were

expected to have large volumes of expedited removal orders and a large
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Page 32 GAO/GGD-00-176 Improve Expedited Removal Process

number of credible fear referrals and, thus, should provide us with a

reasonable representation of the expedited removal process. These

locations handled about 44,400, or 50 percent, of the expedited removal

cases in fiscal year 1999.

We also reviewed headquarters and local guidance on the processes and

procedures for processing aliens through expedited removal and credible

fear interviews as well as on withdrawals and cases in which aliens

recanted their claims of credible fear.

At the four ports we visited, we examined INS’ use of three internal

controls that are designed to help ensure that inspectors handle expedited

removal cases in accordance with prescribed guidelines. These controls

are (1) documentation of specific expedited removal procedures, including

supervisory review of cases; (2) training on expedited removal and

credible fear policies and procedures; and (3) monitoring of the expedited

removal and credible fear processes at the ports. Our analysis of these

internal controls included the following steps:

• To examine the documentation of specific expedited removal procedures,

including supervisory review of cases, we reviewed probability samples25

of 585 files for aliens who entered the expedited removal process but were

not referred for a credible fear interview between October 1, 1998, and

September 30, 1999. These files included 365 aliens who were issued an

expedited removal order as well as 220 aliens who were offered

withdrawals at the ports of entry. We did not examine withdrawals at San

Ysidro because the port did not create and retain case files in the majority

of instances where withdrawals were allowed.

• To determine whether asylum officers followed certain credible fear

determination processes, we reviewed all 45 files of negative credible fear

determinations for aliens who entered the country between October 1,

1998, and September 30, 1999, for the 3 asylum offices we visited. We also

reviewed 133 randomly selected files of the 232 aliens who recanted their

claims of fear during this period at the same 3 offices.

• To review the training provided on expedited removal and credible fear

policies and procedures to immigration officers, we interviewed INS

training officials in headquarters as well as at each of the four district

25 A probability sample is drawn using statistical, random selection methods that ensure that each

member of the universe has a known probability of being selected. This approach allows us to make

inferences about the entire universe.
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offices and three asylum offices we visited and obtained appropriate

guidance and training manuals. We also discussed training with inspectors

and asylum officers at the offices visited and distributed a questionnaire to

401 inspectors and 108 asylum officers to elicit their views on the types

and adequacy of training received on expedited removal and credible fear

processes. We received responses from 182 inspectors and 64 asylum

officers.

• To examine INS’ monitoring and oversight of the expedited removal

processes at the ports and asylum offices, including credible fear

determinations, we interviewed INS officials at headquarters and the

locations we visited and obtained audit reports and other data related to

these activities.

In addition, during our field visits we observed inspectors processing

seven aliens through the expedited removal process and asylum officers

conducting six credible fear interviews. We also interviewed immigration

judges at each of the locations and observed judges’ reviews of two

negative credible fear determinations of aliens who attempted entry at the

ports we visited. We selected courts that were near the ports of entry

included in our review.

To examine the characteristics of aliens subject to the expedited removal

process, we analyzed two INS databases, which contained information on

all aliens subject to expedited removal who applied for entry at the

nation’s airports and San Ysidro, CA during fiscal year 1999. The

databases contained information on the nationality, gender, and age of the

aliens, the charges against the aliens, and inspectors’ decisions to either

issue expedited removal orders, allow aliens to withdraw, or refer aliens to

the asylum office for credible fear interviews. To examine the factors

associated with aliens’ decisions to recant their fear of persecution or

torture and with credible fear determinations made by asylum officers, we

analyzed an INS database containing information on all aliens referred by

inspectors to asylum officers for credible fear interviews. The database

contained information on the citizenship, age, and gender of the aliens;

whether aliens attempted to enter the country alone or with dependents;

and whether aliens recanted their fear, or received positive or negative

credible fear determinations from asylum officers. This database had

information on aliens applying for entry to the United States between April

1, 1997, and September 30, 1999. Appendix III contains additional

discussion of this database and our assessment of its reliability.
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To determine how INS exercised its authority to detain or release aliens

who arrive at ports of entry and claim a fear of persecution or torture, we

reviewed INS headquarters policy and guidance on detention priorities.

We also reviewed applicable laws and regulations.

To determine how each district exercised its discretion to release or detain

an alien after an asylum officer determines that the alien has a credible

fear of persecution or torture, we conducted a mail survey of the Detention

and Deportation Branches of all 33 domestic INS district offices. We

surveyed the district offices because they were the best source of

information regarding the detention and release of aliens. We received

responses from all 33 district offices. The Anchorage, AK, and Honolulu,

HI, District Offices reported that they routinely transferred all aliens

claiming a fear of persecution or torture to other western region districts

for the credible fear processing. As a result, the district offices that

received these aliens included them in the number of cases they reported.

Two districts could not estimate or provide an exact number of cases.

Therefore, we have responses from 29 district offices on the number of

aliens detained or released and from 29 district offices regarding their

detention practices.

Specifically, we asked these district officials to describe what factors they

considered in deciding whether to detain or release credible fear aliens.

We also asked them to provide district data on the number of credible fear

cases for fiscal year 1999; the number of aliens detained and released; and

a list of the facilities they used to detain aliens, including those facilities

used to detain aliens claiming a fear of persecution or torture.

To determine the number of aliens who did not appear before an

immigration judge for their removal hearings after being released from

detention, we obtained and analyzed a joint INS and EOIR database that

contained information on the results of removal hearings for aliens, in

cases when asylum officers determined those aliens to have a credible fear

of persecution or torture between April 1, 1997, and September 30, 1999.

Our analysis focused on those aliens who received a decision from an

immigration judge (e.g., granted the alien’s asylum request or ordered the

alien removed in absentia). This database was created by merging selected

data fields from EOIR’s nationwide database on all removal hearings

handled by immigration judges with selected data fields from INS’

nationwide database on the results of credible fear interviews conducted

by asylum officers. The two databases were merged using the applicant’s

INS-assigned alien number. The resulting database contained identifying

information on the alien, including name, alien number, and nationality;
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Page 35 GAO/GGD-00-176 Improve Expedited Removal Process

the date of the asylum officer’s credible fear determination; whether the

alien filed an application for asylum relief; dates and locations of any

hearings before an immigration judge; whether the alien requested a

change of venue for such hearings; whether the alien was detained or

released as of the date of a specific hearing; and the results of the hearings,

including whether the alien was present for the hearings; and whether the

judge granted asylum or other relief from removal or issued a formal

removal order. The database contained information on removal hearings

for 7,947 aliens who had received positive credible fear determinations

from asylum officers, including 5,320 (or 67 percent) who were released

from INS custody as of the date of their hearing.

To review detention conditions, we visited six INS districts whose ports of

entry processed 77 percent of the aliens claiming a credible fear of

persecution or torture in fiscal year 1999. The six districts were Chicago,

Los Angeles, Miami, New York, San Diego, and San Francisco. Within

these districts we visited 12 detention facilities26 that district officials said

were generally used to detain aliens who claimed a fear of persecution or

torture. According to our district survey, officials reported that they used

166 detention facilities, excluding hotels and shelters, to detain credible

fear aliens. The 12 facilities we visited were used to detain about 70

percent of all credible fear aliens nationally in fiscal year 1999. The

facilities we visited were two INS-owned and operated Service Processing

Centers (SPC), three contractor-owned and operated facilities, and seven

city and county jails. We discussed detention policies and procedures with

facility officials and toured the living, medical, visitation, recreation,

library, and kitchen areas in each facility.

To guide our observations of detention conditions at the 12 facilities we

visited, we developed a data collection instrument. The specific

conditions we chose to observe were developed from INS’ draft detention

standards, American Correctional Association (ACA) standards, guidelines

and principles of the United Nations High Commission on Refugees

(UNHCR) on detention standards for asylum seekers and other detainees,

a survey mailed to INS detainees in support of a class action law suit27

on

detention conditions by the Center for Human Rights and Constitutional

Law, immigrant detention reports by Human Rights Watch and Amnesty

26 By district, the facilities were Chicago—DuPage County Jail, IL, and Racine County Jail, WI; Los

Angeles—Mira Loma Detention Center, CA, and San Pedro SPC, CA; Miami—Krome SPC, FL; New

York—Elizabeth Detention Center, NJ, Queens Private Detention Facility, NY, and York County Prison,

PA; San Diego—San Diego Detention Center, CA; and San Francisco—Kern County Sheriff’s

Department Lerdo Facility, CA, Marin County Jail, CA, and Oakland City Jail, CA.

27 The suit was dropped after a new case judge decertified the case.
Chapter 1

Introduction

Page 36 GAO/GGD-00-176 Improve Expedited Removal Process

International,28 and discussions with representatives from UNHCR and

other immigrant rights advocates. We focused on conditions about which

we did not have to make value judgments, such as whether aliens were

allowed access to telephones, visitation, and health care.

More details on our objectives, scope, and methodology are in appendix III

of this report. References made to aliens in this report may be related to

their cases.

We conducted our work at INS headquarters in Washington D.C., and the

six INS districts and their associated port and detention facilities, as

discussed above, from August 1999 to July 2000 in accordance with

generally accepted government auditing standards.

We provided a draft of this report to the Attorney General for review and

comment. On August 10 and 14, 2000, we met with INS officials, including

the GAO Audit Liaison in its Office of Internal Audit (OIA), and with EOIR

officials, including its General Counsel, respectively, to obtain Justice’s

comments. Overall, the officials stated that the report was fair and

accurate. They also provided technical comments, which have been

incorporated in this report where appropriate.

28 Human Rights Watch, September 1998, “Locked Away: Immigration Detainees in Jails in the United

States.” Amnesty International, September 1999, “United States of America: Lost in the Labyrinth:

Detention of Asylum-Seekers.”

Agency Comments
Chapter 2

INS Is Generally Following Its Procedures and

Internal Controls For the Expedited Removal

Process At Selected Ports

Page 37 GAO/GGD-00-176 Improve Expedited Removal Process

Our review of documentation in the case files of aliens who had been

processed for expedited removal indicated that INS inspectors were

complying with requirements of the expedited removal process in almost

all cases at Los Angeles, JFK, and Miami airports and the San Ysidro port

of entry. These requirements include the inspectors’ taking aliens’ sworn

statements and asking aliens if they had a fear of returning to their home

country, supervisory oversight, and having the aliens sign their sworn

statements. We identified some cases where the supervisors did not sign

removal orders, but documentation indicated that supervisors’

concurrence was obtained by telephone, which is consistent with INS

policy.

From the inception of expedited removal INS stated that it has provided

training to inspectors and supervisors on the requirements of the

expedited removal process and has now included it as part of basic

training for all inspectors. Most of the inspectors we interviewed or

surveyed expressed satisfaction with the training provided.

INS has established two internal oversight groups—the Expedited

Removal Working Group1 and OIA—to help ensure that immigration

officers comply with expedited removal procedures. In fiscal year 1999,

these groups found a small number of problems, and they were the same

types of problems that we identified in our review. Specifically, they found

sworn statements that were not done correctly and removal orders

without proper supervisory signature. Additionally, the two groups found

that the appropriate INS databases were not being updated in a timely

manner.

INS also requires that inspectors follow specific procedures in cases where

aliens are allowed to withdraw their applications for admittance rather

than being processed for expedited removal. Our examination of these

files at Los Angeles, Miami, and JFK airports showed that inspectors

generally documented that they followed these procedures.

1 The Expedited Removal Working Group was established in 1997 to identify and address questions,

procedural and logistical problems, and quality assurance concerns related to the expedited removal

process. It consists of representatives from INS’ offices of Inspections, International Affairs, Asylum,

Detention and Deportation, Field Operations, and General Counsel. The group provides policy

guidance and training on expedited removal. The activities of the group are discussed later in this

chapter.
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 38 GAO/GGD-00-176 Improve Expedited Removal Process

At the four ports we visited, we examined INS’ use of three management

controls that help INS to ensure that inspectors are properly following its

policies and procedures for carrying out the expedited removal process.

Specifically, we found that

• documentation generally indicated that (1) inspectors asked aliens specific

questions about their fear of being returned to their home country, (2)

supervisors reviewed expedited removal orders, and (3) aliens signed their

sworn statements;

• training was provided to inspectors and supervisors on expedited removal

procedures, including how to process required paperwork and take sworn

statements from aliens; and

• two internal groups were in place to monitor the expedited removal

process.

We reviewed randomly selected case files on 365 of 47,791 aliens who

attempted entry at Los Angeles, JFK, and Miami airports and San Ysidro

port of entry during fiscal year 1999, and who were charged under the

expedited removal provisions but were not referred to an asylum officer

for a credible fear interview.2

Our review showed that the documentation

in the case files at the four locations indicated general compliance with the

procedures. We generally found that (1) inspectors documented in the

sworn statement that they asked the aliens the three required questions

designed to identify a fear of returning to their home country, (2)

supervisors reviewed the expedited removal orders, and (3) aliens signed

the sworn statements.

As discussed previously, inspectors are required to ask aliens questions

about a fear of being returned to their home country to identify those

aliens who may have a credible fear of persecution or torture and, thus,

may be eligible for asylum. Specifically, inspectors are to ask aliens (1)

why they left their home country or country of last residence, (2) if they

have a fear or concern about being returned or removed from the United

States, and (3) if they thought that they would be harmed if they were

returned. Regarding inspectors asking the three required questions, our

case file review of the documentation showed that inspectors at all four

2

INS did not offer these aliens the opportunity to withdraw their applications for admission. See

appendix III, table III.4 for a listing of the sample and population sizes for the four ports.

INS Management

Controls for Expedited

Removal

File Review Indicated

General Compliance With

INS Procedures at Selected

Ports

Inspectors at Selected Ports

Generally Documented Asking

Required Questions
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 39 GAO/GGD-00-176 Improve Expedited Removal Process

locations almost always documented that they followed procedures.3As

shown in table 2.1, the large majority of case files contained

documentation that the inspectors asked the aliens why they left their

home country or country of last residence.4

Port of entry

Percent of cases where

inspectors recorded asking the

required question

Los Angeles International Airport 96

JFK International Airport 99

Miami International Airport 99

San Ysidro Port of Entry 84

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

As shown in table 2.2, nearly all of the case files contained documentation

that the inspectors asked the aliens if they had a fear or concern about

being returned to their home country or of being removed from the United

States.

Port of entry

Percent of cases where

inspectors recorded asking the

required question

Los Angeles International Airport 96

JFK International Airport 99

Miami International Airport 99

San Ysidro Port of Entry 100

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

As shown in table 2.3, nearly all of the case files contained documentation

that the inspectors asked the aliens if they would be harmed if they were

returned to their home country.

3

The absence (or presence) of documentation in the file does not necessarily mean that the inspector

did not (or did) ask the required questions.

4

Unless othewise noted, all confidence intervals are less than or equal to plus or minus 10 percentage

points.

Table 2.1: Why Did You Leave Your

Home Country or Country of Last

Residence?

Table 2.2: Do You Have a Fear or

Concern About Being Returned to Your

Home Country or Removed From the

United States?
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 40 GAO/GGD-00-176 Improve Expedited Removal Process

Port of entry

Percent of cases where inspectors

recorded asking the required question

Los Angeles International

Airport 93

JFK International Airport 99

Miami International Airport 98

San Ysidro Port of Entry 99

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

INS inspectors and supervisors at all four locations told us that the

standard for a finding of credible fear was very low and that inspectors

were directed to send cases forward when any mention of fear is made.

During our file review, we identified six cases at JFK in which file

documentation indicated that the aliens had expressed a fear. However,

the aliens were not referred to an asylum officer and were instead placed

in expedited removal. According to the documentation, the aliens’ reasons

for the fear in three cases were that they (1) owed money, (2) might be

arrested for leaving their country, or (3) had a fear but would not be

harmed if returned to their home country. In the remaining three cases,

the aliens’ reasons for being afraid were not clear from reading the sworn

statements. An INS official at the JFK port of entry reiterated that the port

of entry’s policy requires all cases where fear is mentioned to be referred

to an asylum officer. He indicated that additional training or clarification

of the standard might be helpful. We identified a similar case in Los

Angeles where the alien claimed a fear of persecution or torture but was

placed in expedited removal. All seven of these cases had evidence of

supervisory approval.

All expedited removal orders require supervisory approval. By regulation,

this approval authority is not to be delegated below the level of a secondline supervisor. On the basis of our case file review at the four ports, we

estimate that second-line supervisors documented that they reviewed the

expedited removal orders in an estimated 97 to 100 percent of the cases

(see table 2.4).

Table 2.3: Would You Be Harmed If You

Were Returned To Your Home Country?

Supervisory Approval Generally

Provided at Selected Ports
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 41 GAO/GGD-00-176 Improve Expedited Removal Process

Port of entry

Percent of files that included evidence that a second-line

supervisor signed off on the removal order in the file

Los Angeles International

Airport 97

JFK International Airporta100

Miami International Airport 99

San Ysidro Port of Entry 97

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

a

A second-line supervisor concurred by telephone for most of the cases.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

Some of the files we reviewed contained expedited removal orders without

supervisory signatures, but documentation indicated that supervisory

concurrence was obtained by telephone. For example, in 80 of the 94

cases we reviewed at JFK, documentation indicated that supervisory

review was obtained in this manner. According to an INS official at JFK,

having an assistant port director at all the various terminals at all times

was not feasible given staffing constraints. INS permits approval by

telephone if an appropriate supervisor is not present at the port. However,

according to an INS headquarters official, training provided to regions has

included a recommendation that approving officials keep a log of

telephonic concurrence to ensure the integrity of the process and that all

cases have been properly approved. A JFK official said that they were not

keeping a log at the time of our review.5

Another internal control to help ensure that inspectors are properly

following expedited removal policies and procedures is to have the alien

sign their sworn statements. Files at the four ports indicated that aliens

signed the sworn statements between 95 and 100 percent of the time for

the case files we reviewed, as shown in table 2.5.

Port of entry

Percent of time documentation indicated

that the alien signed the sworn statement

Los Angeles International Airport 95

JFK International Airport 97

Miami International Airport 97

San Ysidro Port of Entry 100

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

5

We did not determine if the other ports kept a log or added follow-up information. We obtained

information at JFK due to the large number of cases with telephonic concurrence.

Table 2.4: Is There Evidence That a

Second-line Supervisor Signed off on

the Removal Order in the File?

Aliens Usually Signed Sworn

Statements at Selected Ports

Table 2.5: Is the Record of Sworn

Statement Signed by the Alien?
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 42 GAO/GGD-00-176 Improve Expedited Removal Process

Local officials at each of the three airports told us that they had

implemented an additional management control to ensure inspector

compliance with proper procedures. Specifically, these ports required that

at least an assistant area port director sign off on a detailed checklist prior

to closing a case file. As shown in table 2.6, we found that most of the files

contained this signature, as required at these locations.

Port of entry

Percent of cases with evidence of port director

or assistant area port director signature

Los Angeles International Airport 93

JFK International Airport 100

Miami International Airport 99

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

It should be noted that we could not determine when this supervisory

review took place. For example, an official at one port told us that after

cases were completed in secondary inspection, the case files were sent to

the Intelligence Unit. She said that, among other things, the Intelligence

Unit checks for missing signatures and returns the files for appropriate

signatures when needed. According to the port official, cases may remain

open for a very short time or as long as 2 months, depending on the

existing workload and what needs to be done to the file. We could not

determine from the case file when the officials reviewed the cases.

According to INS, all immigration officers who conduct expedited removal

proceedings are to receive training on how to implement the statutory

provisions and regulations. Further, INS requires that its inspectors are to

successfully complete a 12-week basic training program and a 1-year field

training and probationary period before being allowed to conduct

expedited removal proceedings. During this period, all officers are to

receive training in the provisions of the 1996 Act, including the expedited

removal statute, regulations, and implementing procedures. INS also

provided training for designated “expedited removal experts” from each

district. These individuals were, in turn, to provide training at their

respective offices and act as focal points for distribution and

implementation of policy guidance and memorandums.

The expedited removal training is designed to provide instructions on

aliens who would be subject to expedited removal, what information

should be obtained in a sworn statement, and when to refer an alien to an

asylum officer for a credible fear interview. Training also covers guidance

Table 2.6: Is There Evidence that an INS

Port Director or Assistant Area Port

Director Signed off on the Supervisory

Checklist?

INS Makes Training

Available on Expedited

Removal Policies and

Procedures
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 43 GAO/GGD-00-176 Improve Expedited Removal Process

on when to offer withdrawals in lieu of expedited removal. Some of the

ports that we visited provided additional training to inspectors in special

units that processed expedited removal cases. Additionally, INS’ Expedited

Removal Working Group provides policy guidance and training on

expedited removal as well as addresses port-specific problems during its

site visits. An INS headquarters official told us that they would continue to

conduct additional support training at field offices and ports of entry, as

necessary.

Inspectors and supervisors we surveyed acknowledged receiving the

training on expedited removal and said that they were generally satisfied

with it. The response rate to our survey was 182 of 401 inspectors (or 45

percent) at the four ports. Of those responding, 149 inspectors indicated

that they were satisfied or generally satisfied with the training they

received. Twenty-eight of the 182 respondents thought that course content

and frequency could be enhanced. Some inspectors raised questions

regarding what actually constitutes credible fear and whether all aliens

who express the slightest indication of fear should be referred to an

asylum officer. Although some inspectors thought more clarification

would be helpful, INS requires inspectors to refer any alien claiming a fear

of returning to his/her home country to an asylum officer.

INS’ Expedited Removal Working Group and the Office of Internal Audit

(OIA) monitor various aspects of the expedited removal process. The two

groups conduct site visits and provide their findings to ports and districts

for corrective actions. The purpose of this on-site monitoring is to ensure

compliance with regulatory and statutory requirements. In fiscal year 1999

the groups found a small number of problems, such as the use of improper

forms and the lack of supervisory oversight.

The Expedited Removal Working Group conducts 1- to 2-day site visits to

offices to provide training and conduct file reviews to help identify and

address questions and concerns. The working group focuses its training on

those inspectors and supervisors who have the responsibility for

conducting expedited removal. A working group official stated that some

ports have created dedicated expedited removal teams, and at those ports

it focuses its review efforts on those teams.

The group made 38 site visits in the past 3 years, 10 of which were made in

fiscal year 1999. The group’s agenda includes topics such as an office’s

overall compliance with procedures as well as specifics on file

documentation, such as unsigned or outdated forms being used. According

to a working group official, the group does not produce reports on the

INS Has Taken Steps to

Monitor the Expedited

Removal Process

Expedited Removal Working

Group
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 44 GAO/GGD-00-176 Improve Expedited Removal Process

results of their visits. Rather, the group brings issues that arise to the

attention of local management and discusses them in the training

conducted at the time of its visit. The official recalled only one problem

identified during the site visits in fiscal year 1999. That problem involved

one airport that seemed to have a large number of errors in its expedited

removal paperwork. The official added that the team provided some

training to the inspectors during the site visit. It then arranged through

INS’ regional office to have two expedited removal experts from another

port conduct more detailed training, observe case processing, and work

with the inspectors to answer questions and show them exactly what

needed to be done. According to the official, as the field became more

familiar with the expedited removal process, the group identified fewer

errors or issues and decreased its oversight activities. The official stated

that the working group has already visited most of the major ports in the

country. However, monitoring of the process is now left primarily to the

districts and regions. As of June 15, 2000, the group did not have any

additional port visits scheduled.

In addition to the site visits, the working group has periodically requested

and reviewed a sample of files from selected ports. After reviewing the

files, it is to inform the ports of any major problems and uses information

from these reviews in the training sessions for the various locations. The

working group requested 802 files in fiscal year 1998, 168 files in fiscal year

1999, and 40 files as of April 2000 for fiscal year 2000.6

As with on-site monitoring, the group has reduced its file review efforts

over time. According to a group official, the reduced effort is due to

overall familiarity with the expedited removal process at the ports, few

errors being identified, limited resources, oversight being done by OIA, and

visits having been made to the large ports of entry.

To determine the kinds of problems the group identified, we reviewed

documentation on 36 of the cases it reviewed in fiscal year 1999.7

In more

than half of these cases, the reviewing official noted that the sworn

statements were either incomplete or that the wrong form was used.

Other problems that were identified included someone other than the

second-line supervisor signing the order of removal and the case not being

updated in the necessary database.

6

A working group official stated that although the group receives most of the files its requests, it does

not receive all of them. This official could not provide a count of the number of cases received and

reviewed.

7 A working group official provided 36 cases from those the group reviewed in fiscal year 1999.
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 45 GAO/GGD-00-176 Improve Expedited Removal Process

OIA has incorporated into its field audit program criteria for reviewing

compliance with the expedited removal procedures through its Program

for Excellence and Comprehensive Tracking (INSpect).8

At the 11 districts

at which various aspects of the inspection function were reviewed,

including expedited removal in fiscal year 1999, INSpect cited 8 districts

for expedited removal-related concerns. 9

The most common problem was

untimely updates to automated systems with expedited removal

information, followed by incomplete documentation and review of removal

orders. Some of the sworn statements did not contain all required

information and some removal orders did not indicate second-level

supervisory approval. At three of the districts, OIA recommended that the

District Director provide refresher training in expedited removal

processing, particularly in taking sworn statements. While the reviews

contained a small number of cases with these errors or omissions, OIA

considered them as continuing problems in the Inspections area.

As discussed in chapter 1, INS may permit an alien to withdraw his or her

application for admission. Withdrawals do not carry the 5-year prohibition

for reentry into the United States, as does an expedited removal order.

INS guidance generally requires that inspectors ask aliens the three

required questions about their fear of being returned to their home country

and obtain supervisory concurrence for withdrawals before permitting the

alien who is subject to expedited removal to withdraw his or her

application for admission. INS headquarters allows the local offices to

determine the level of supervisory oversight. According to an INS official,

headquarters has not found it necessary to dictate the level of supervision

for withdrawals, since INS has been allowing this procedure for decades

and inspectors have been routinely processing these types of cases as part

of normal operations. In cases where an alien would have been subject to

expedited removal if not permitted to withdraw an application, the

guidance directs inspectors to take sworn statements from the alien asking

the same fear questions as under expedited removal. As shown in table 2.7,

our review of 220 randomly selected files of 1,611 withdrawal cases in

fiscal year 1999 at Los Angeles, JFK, and Miami airports in which INS

8

The primary focus of INSpect is to assess office effectiveness; determine compliance with applicable

laws, regulations, and procedures; measure performance against established standards; and provide a

means to share local successes and solutions applicable to servicewide problems.

9

The inspection function was not reviewed in one district and final reports had not been issued for two

districts.

OIA Reviews

INS Allows Some

Aliens to Withdraw

Their Applications for

Admission
Chapter 2

INS Is Generally Following Its Procedures and Internal Controls For the Expedited Removal

Process At Selected Ports

Page 46 GAO/GGD-00-176 Improve Expedited Removal Process

allowed applicants to withdraw their applications for admission showed a

range of compliance.10

Port of entry

Percent of cases in

which all credible

fear questions were

asked

Percent of cases in

which no credible

fear questions were

asked

Percent of cases in

which some credible

fear questions were

asked

Los Angeles

International Airport 74 21 5

JFK International

Airport 95 5 0

Miami International

Airport 95 2 3

Note: The confidence intervals are less than or equal to plus or minus 10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

Our file review indicated documentation of first-line supervisory inspector

review in estimated 93 to 100 percent of the cases, as shown in table 2.8.

Port of entry

Percent of cases having

supervisor’s signature

Los Angeles International Airport 93

JFK International Airport 100

Miami International Airport 98

Note: The confidence intervals are less than or equal to plus or minus10 percentage points.

Source: GAO review of INS case files of aliens who attempted entry during fiscal year 1999.

Procedures at Los Angeles, JFK, and Miami airports required second-line

supervisory review of withdrawals. The estimated percentages of

compliance of the three airports with their local requirement for assistant

area port director or port director review, were 66 percent,11 94 percent,

and 61 percent,12 respectively. As was the case with the expedited removal

files, we could not determine from the files when the supervisor signed the

forms.

10 We did not examine withdrawals at San Ysidro because the port did not create and retain case files in

the vast majority of instances where withdrawals were allowed. The port only creates these files and

issues alien numbers to the aliens subject to expedited removal who withdraw when, for example, the

alien is charged with being involved in criminal activities or claims eligibility for a specific immigration

benefit, such as marriage to a U.S. citizen. According to data from the San Ysidro port of entry, 11,782

withdrawals were issued in fiscal year 1999, but alien numbers were issued in 237 of these cases.

11 Sampling error is plus or minus 11 percent.

12 Sampling error is plus or minus 13 percent.

Table 2.7: Documentation Existed

Showing That Credible Fear Questions

Asked

Table 2.8: Documentation Existed

Showing That INS Supervisor Signed off

on the File
Chapter 3

INS Is Generally Following Its Procedures

Regarding the Credible Fear Process at

Selected Asylum Offices

Page 47 GAO/GGD-00-176 Improve Expedited Removal Process

Under the expedited removal process, as of November 20, 1999, INS

inspectors had referred 11,087 aliens to an asylum officer for a credible

fear interview. These aliens attempted to enter the United States between

April 1, 1997, and September 30, 1999, and expressed a fear of being

returned to their home country. Of the referred aliens, 9,870 had

completed their interview, as of November 20, 1999, and 96 percent were

determined to have a credible fear of persecution or torture. Our analysis

showed that the likelihood of an asylum officer determining an alien did

not have credible fear of persecution or torture depended heavily on the

region of the alien’s citizenship and depended less heavily on other factors,

such as the asylum office that reviewed the alien’s case, the alien’s gender,

and the year in which the alien attempted to enter the United States.

Our review of internal controls at INS’ Los Angeles, Miami, and New York

Asylum Offices revealed that asylum officers generally complied with

requirements, including documenting that mandatory paragraphs were

read to the aliens during the interview process and that documentation in

the aliens’ files indicated that supervisors’ review took place. We also

found that the asylum officers we surveyed were satisfied with the

required training INS provided. Finally, our review showed that the

headquarters quality assurance team responsible for reviewing all negative

(as well as some positive) determinations was performing these reviews

and providing feedback to the asylum offices on their results.

Of the 10,755 aliens who were referred to an asylum officer and whose

cases were closed,1 about 8 percent of the aliens decided to recant their

claims of a fear of persecution or torture. We analyzed various factors to

determine their effect on aliens’ likelihood of recanting their claims of fear

of persecution or torture. As with credible fear determinations, the factor

with the most pronounced effect on the likelihood that aliens would recant

their claims was the region of the alien’s citizenship.

We reviewed a random sample of 133 out of 232 cases in which aliens

withdrew their requests for a credible fear interview and recanted their

claims of a fear of persecution or torture. INS requires asylum officers to

document that aliens were withdrawing their claims voluntarily but, at the

time of our review, did not require them to obtain a reason for the

withdrawals. In July 2000, INS changed its policy to require that asylum

1

Closed cases include those in which aliens withdrew their claim of a fear of persecution or torture or

received an asylum officer’s credible fear determination and do not include those cases in which aliens’

cases were terminated for other reasons, such as the aliens’ eligibility to apply for relief from removal

for reasons outside the credible fear process.
Chapter 3

INS Is Generally Following Its Procedures Regarding the Credible Fear Process at Selected

Asylum Offices

Page 48 GAO/GGD-00-176 Improve Expedited Removal Process

officers document the aliens’ reasons for not pursuing their claim of a fear

of persecution or torture and supervisors’ review.

Between April 1, 1997, and September 30, 1999, INS data showed that

inspectors referred 11,087 aliens to asylum offices for credible fear

interviews.2In about 96 percent of 9,870 cases where a determination had

been made, the asylum officer found that the alien had a credible fear of

persecution or torture (positive determination). Among the asylum offices,

the percentages of positive credible fear determinations for 7 of the 8

asylum offices were greater than 90 percent. The remaining office’s

positive determination was 78 percent. The nationwide percentage has

increased from 82 to 98 percent over the past 3 years. Our analysis of

various factors (e.g., an alien’s region of citizenship, the alien’s age and

gender, whether the alien was traveling alone or not, and the asylum office

that reviewed the case) showed that the alien’s region of citizenship had

the largest effect on the likelihood of an alien’s receiving a positive or

negative credible fear determination.

Aliens requested that immigration judges review 376 negative credible fear

determinations. The judges affirmed the asylum officers’ determinations

85 percent of the time.

According to INS data, inspectors referred 11,087 aliens who attempted to

enter the United States between April 1, 1997, and September 30, 1999, to

asylum officers for a credible fear interview. As of November 20, 1999, of

these 11,087 aliens, 9,870 aliens had completed their interviews and had

received either a positive or negative credible fear determination from an

asylum officer. An additional 885 aliens had recanted their claims of a fear

of persecution or torture, and their cases had been closed. These aliens

were to be removed from the country. The remaining 332 aliens either had

not been interviewed or were awaiting an asylum officer’s decision.

As shown in table 3.1, a little over 50 percent of all aliens referred to

asylum officers were citizens of China (27 percent), Sri Lanka (14 percent),

or Haiti (13 percent).3

2

This figure is from INS’ Asylum Pre-Screening Database, current as of November 20, 1999, which was

the data source for analyses, which follow for the time period April 1, 1997, to September 30, 1999. As

of June 24, 2000, INS had revised this total to 11,104. The small difference in the totals is the result of

updates and corrections to the data in APSS between November 1999 and June 2000.

3 These aliens attempted to enter the country between April 1, 1997, and September 30, 1999.

Information Related to

Aliens Referred to

Asylum Officers

Results for Aliens Who

Were Referred to Asylum

Officers
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Country of citizenship Number of aliens Percentage of total aliens

China 2,946 27

Sri Lanka 1,521 14

Haiti 1,456 13

Albania 379 3

Somalia 371 3

Yugoslavia 291 3

Mexico 242 2

El Salvador 222 2

Pakistan 214 2

Guatemala 213 2

Othera 3,232 29

Total 11,087 100

a

“Other” is comprised of 119 countries, 25 of which had only 1 case. This category also includes 40

cases where the alien’s citizenship was coded as “unknown” (n=34) or “stateless” (n=6).

Source: GAO analysis of data from INS’ Asylum Pre-Screening System.

Nationwide, asylum officers determined that 96 percent of the 9,870 aliens

with completed interviews had a credible fear of persecution or torture.

The percentage grew from 82 percent in fiscal year 1997 to 96 percent in

fiscal year 1998 and 98 percent in fiscal year 1999. As shown in table 3.2,

the percentages of positive credible fear determinations for 7 of the 8

asylum offices were greater than 90 percent.

Asylum office

Percentage of positive credible

fear determinations

Arlington, VA 92

Chicago, IL 98

Houston, TX 78

Los Angeles, CA 96

Miami, FL 96

New York, NY 97

Newark, NJ 96

San Francisco, CA 97

Source: GAO analysis of data from INS’ Asylum Pre-Screening System.

Table 3.1: Most Common Citizenship of

Aliens Referred to Asylum Officers

Between April 1, 1997, and September

30, 1999

Table 3.2: Percentage of Credible Fear

Determinations by Asylum Offices for

Aliens Who Attempted to Enter the

United States Between April 1, 1997, and

September 30, 1999
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We examined the effects of a number of factors on the likelihood of an

alien’s receiving a negative (or positive) credible fear determination from

an asylum officer. 4 These factors included

• the alien’s region of citizenship;5

• which asylum office reviewed the alien’s case ;

• the alien’s age and gender;

• what fiscal year (1997,6 1998, or 1999) the alien attempted to enter the

United States; and

• whether the alien was traveling alone or was the lead member of a family

group.

The most important factor affecting an alien’s likelihood of receiving a

negative (or positive) credible fear determination was the alien’s region of

citizenship. While less important than region, other factors that affected

the likelihood were the asylum office where the alien’s case was decided,

the alien’s gender, and the year in which the alien attempted to enter the

United States.

• Aliens from Mexico, the Caribbean, Central America, South America, the

Middle East, and the former Soviet Bloc countries had a significantly

higher likelihood of receiving negative findings than did aliens from Asia.

Aliens from Mexico and Central America, for example, were over 20 times

more likely to receive a negative determination; aliens from the Caribbean

and South America were 4 and 10 times, respectively, more likely; and

aliens from the Middle East and the former Soviet Bloc were 2 to 3 times

more likely to receive a negative determination than were aliens from Asia.

4

We were limited to data contained in INS’ Asylum Pre-Screening System. We used multivariate logistic

regression to estimate the effects of the factors. The procedure provides likelihoods (or odds ratios),

which provide a simple description of the differences across categories for the factors we compared.

See appendix III for a fuller discussion of our analyses and the likelihoods derived from them. Our

multivariate results for the likelihood of a negative credible fear determination are on the basis of 8,849

cases with no missing data. Appendix III also contains a discussion of our assessment of the

reliability of the APSS database.

5

Because of the limited number of cases by country of citizenship, we grouped countries by regions of

the world. The regions were: Asia (of which China, Sri Lanka, Pakistan and India each had over 100

cases), Africa (of which Somalia, Nigeria, Niger and Ghana each had over 100 cases), the Caribbean (of

which Haiti and Cuba each had over 100 cases), Central America (of which El Salvador and Guatemala

each had over 100 cases), the Middle East (of which Iran, Lebanon, Algeria and Iraq were the countries

with the largest numbers of cases, with 93, 79, 74 and 62 cases, respectively), South America (of which

Colombia had over 100 cases), and the former Soviet Bloc (of which Albania and Yugoslavia each had

over 100 cases). However, we included Mexico separately because it was the only North American

country included in the analysis and traditionally has been responsible for the largest group of illegal

aliens in the United States.

6 Data for fiscal year 1997 represent the period from April 1, 1997 to Sept. 30, 1997.

Factors Associated with

Aliens’ Receiving a Negative

Credible Fear

Determination
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Aliens from Africa did not differ significantly compared to aliens from

Asia.

• Aliens who had their cases heard in some asylum offices were more likely

to receive a negative credible fear determination than aliens whose cases

were heard in other asylum offices. For example, cases heard in the

Newark, Arlington, and Houston Asylum Offices were 2 to 3 times more

likely to result in negative determinations than cases heard in Miami.

Cases heard in the Chicago, Los Angeles, New York, or San Francisco

Asylum Offices were not significantly different from those heard in Miami.

• Aliens’ gender was the only other personal characteristic that was

significantly related to credible fear determinations. Women were about

75 percent as likely as men to receive a negative determination.

• Regarding the fiscal year in which the case was heard, the alien was about

13 percent as likely to receive a negative credible fear determination in

fiscal year 1998 as in 1997, and 8 percent as likely in fiscal year 1999 as in

1997.

According to EOIR officials, between April 1, 1997, and September 30,

1999, 376 aliens requested that an immigration judge review their negative

credible fear determinations.7 The judges affirmed the asylum officers’

negative credible fear determinations in 86 percent of these 376 cases,

vacated (invalidated) the decisions in 14 percent, and made other

decisions8

in 2 percent.9The percentage affirmed varied between 80

percent in fiscal year 1997, 91 percent in fiscal year 1998, and 86 percent in

fiscal year 1999.

If an asylum officer determines that an alien has a credible fear of

persecution or torture or an immigration judge vacates an asylum officer’s

negative credible fear determination, the alien goes to an immigration

judge for a removal hearing, where the alien requests relief from removal

(e.g., the alien requests asylum). Our analysis of EOIR data showed that in

7

According to INS data from the Asylum Pre-Screening System, 68 percent of those aliens who

attempted to enter the United States between April 1, 1997, and September 30, 1999, and received a

negative credible fear determination from an asylum officer requested that an immigration judge

review this determination and 32 percent of the aliens did not.

8

These other decisions included, for example, case closures because the alien was married to a U.S.

citizen and could claim benefits under a process different from the credible fear process or because the

alien asked for a change of venue.

9 The numbers do not add to 100 percent, due to rounding.

Judges’ Review of Credible

Fear Cases

Results of Removal

Hearings
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64 percent of the 7,947 cases, immigration judges had reached a decision

about whether the alien should be removed or granted some form of

relief.10 Of the 5,102 decisions by judges, 30 percent (1,534) of the aliens

were granted relief from removal, and 61 percent (3,111) were ordered

removed from the United States. The remaining 9 percent represented

cases in which action was pending.

We interviewed immigration judges in Los Angeles, Miami, and New York.

Some judges questioned the need for the asylum officer’s credible fear

review, given the great likelihood that such cases were ultimately referred

to them (i.e., due both to the high percentage of aliens found to have

credible fear and 68 percent of aliens who requested reviews of negative

findings). A judge in Miami stated that INS asylum officers were more

strict when the expedited removal process was first implemented, which

was fair in his view, but that asylum officers were no longer trying to find

that the alien had a significant possibility of establishing eligibility for

asylum. Some judges told us that although the credible fear process was

the result of a well-intentioned statute, within the current parameters the

process did not seem effective because so many asylum officers were

determining that aliens had a credible fear of persecution or torture.

We reviewed INS’ management controls over the credible fear process—

file documentation, training, and reviews of asylum officer decisions. Our

analysis of case files in three asylum offices showed that the required

documentation was generally present in the aliens’ files. For example, all

three offices documented that the mandatory paragraph on torture was

read. About 92 percent of the responding asylum officers at the three

asylum offices we visited were satisfied or generally satisfied with their

training. Evidence existed, in most cases, that an INS quality assurance

team had reviewed all negative credible fear determinations at the three

asylum offices that we visited.

10 Aliens have the right to appeal immigration judges’ decisions in removal cases to the Board of

Immigration Appeals. Thus the decisions captured in this database may be subsequently appealed and

the outcomes after appeal may be different from those we have reported here. Further information on

our analysis is presented in appendix III.

Immigration Judges’ Views

on the Credible Fear

Process

INS’ Management

Controls Over the

Credible Fear

Determination
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INS guidance requires that asylum officers complete several key

documentation requirements.11 Asylum officers are required to complete a

detailed worksheet12 from which asylum officers must read several

mandatory paragraphs and to document that they have read them to the

alien. INS also requires supervisory review of every credible fear

determination prior to notifying the applicant of the decision. This review

must be documented in the files.

We reviewed files of all 45 negative credible fear determinations made at

the Los Angeles, Miami, and New York Asylum Offices during fiscal year

1999.13 In the Los Angeles, Miami, and New York Asylum Offices we

reviewed 24, 13, and 8 cases, respectively. We found evidence of

supervisory review in 44 of 45 cases. In these 44 cases, the asylum officer

concluded that the alien’s fears were not related to 1 of the 5 bases for

obtaining asylum—-persecution or torture because of race, religion,

nationality, political opinion, or membership in a particular social group.

An example of one of the cases in which an asylum officer concluded that

the alien’s fear was not related to one of the five bases for obtaining

asylum was one in which the alien’s fear was that she would be subjected

to a life of poverty, but not harmed, if she was returned to her home

country. In that case, the reason checked by the asylum officer was that

there was no significant possibility that the harm feared in the future was

well founded.

Generally, the 45 case files we reviewed included documentation

indicating that the asylum officer read the mandatory information

regarding (1) the purpose of the interview, (2) review by an immigration

judge, and (3) torture to the aliens, as shown in tables 3.3 to 3.5.

Asylum office

Number of cases in which the asylum offficer

checked that the paragraph explaining

the purpose of inteview was read

Los Angeles 23

Miami 13

New York 8

Source: GAO review of INS case files.

11 The absence (or presence) of documentation in the file does not necessarily mean that the asylum

officers did not (or did) read the mandatory paragraphs.

12 Form-I-870, “Record of Determination/Credible Fear Worksheet.”

13 We focused our review on negative credible fear determinations because our concern was to identify

those management controls to prevent aliens with a claim of a fear of persecution or torture from

being improperly removed from the country.

File Review Indicated That

Asylum Officers Were

Documenting Key

Requirements At Three

Offices

Table 3.3: Number of Cases Where

Asylum Officer Checked That He/She

Read Paragraph Explaining the Purpose

of the Interview
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Asylum office

Number of cases in which the asylum officer

checked the paragraph explaining the

referral/review process was read

Los Angeles 21

Miami 13

New York 8

Source: GAO review of INS case files.

Asylum office

Number of cases in which the asylum officer

checked the paragraph on torture was read

Los Angeles 22

Miami 13

New York 8

Source: GAO review of INS case files.

INS makes training available to asylum officers on the credible fear

process. Additionally, officials at the three asylum offices we visited said

that they held training sessions on asylum-related issues. At the three

offices, asylum officers said that they had received training and were

generally satisfied with the training provided.

According to INS guidance, beginning June 1, 1998, asylum officers were

required to have completed the Asylum Officer Training Course and

normally were to have 1 year of interviewing experience to conduct

credible fear interviews. Asylum officer training on credible fear covers

areas such as standards of proof to establish credible fear, the role of

country condition information, the credibility standard, and the credible

fear interview process. Moreover, the three offices we visited also

provided training on how changing country conditions and membership in

various social groups affected applicants’ decisions to flee their countries.

Officials told us that procedures, policies, and information from

headquarters’ quality assurance, including responses to specific cases, and

other issues were discussed at meetings and that written information was

disseminated.

Asylum officers we surveyed were generally satisfied with the training they

received on expedited removal. The response rate to our survey was 59

percent (64 of 108 distributed). Asylum officers indicated that they were

satisfied or generally satisfied with the training they received on credible

fear. Some asylum officers provided additional comments. For example,

several asylum officers said that they would like additional training on the

credible fear standard. Some asylum officers expressed concern with the

Table 3.4: Number of Cases Where

Asylum Officer Checked That He/She

Read Paragraph on the Process of

Referral/Review by an Immigration

Judge

Table 3.5: Number of Cases Where

Asylum Officer Checked That He/She

Read Paragraph on Torture

INS Makes Training

Available to Asylum

Officers on Making Credible

Fear Determinations
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implementation of the standard and a requirement, they believe, to find

that everyone had a credible fear.

INS headquarters officials reiterated that the credible fear standard was

designed to be a safety net to include all possible cases. They further

stated that INS has refined the credibility analysis in the credible fear14

process over time. INS' original test for assessing credibility required that

an asylum seeker had to establish a "significant possibility that his or her

statements are true." According to INS, after review of completed credible

fear cases, a revised test for credibility was developed. The new test

required that to meet the credible fear standard, an applicant must

establish that there is a "significant possibility that the assertions

underlying his or her claim could be found credible in a full asylum or

withholding of removal hearing." INS officials indicated that this revised

test more closely reflected the intent of the statute.

INS’ Asylum Office has established a quality assurance team at

headquarters to review credible fear case files. The team is to (1) review

and approve all asylum officers’ negative credible fear determinations and

(2) review a selected number of positive credible fear determinations.

Additionally, INS headquarters is to review all cases where a positive or

negative credible fear determination was made involving (1)

determinations of credible fear on the basis of torture, (2) high profile

cases, (3) gender-based claims, and (4) domestic violence cases unrelated

to gender. During these reviews, quality assurance officials analyze case

decisions and provide feedback to applicable asylum officers on such

things as thoroughness, clarity, exploration of legal issues, application of

country conditions data, and sensitivity in eliciting pertinent information.

At the 3 asylum offices, we found evidence that headquarters had reviewed

41 of 45 negative credible fear case files. In the Los Angeles and Miami

Asylum Offices, evidence of headquarters review existed in 21 of 24 and 12

of 13 cases, respectively. In the New York Asylum Office, evidence of

headquarters review existed for all 8 cases. However, officials at

headquarters and asylum offices told us that these reviews were

mandatory and that the absence of copies of the documentation most

14 A credible fear of persecution is defined in the Immigration and Nationality Act as " ... a significant

possibility, taking into account the credibility of the statements made by the alien in support of the

alien's claim and such other facts as are known to the officer, that the alien could establish eligibility

for asylum under section 208."

Quality Assurance Team

Reviews Asylum Officer

Decisions
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likely was due to our review of the case working files (which are not the

official files) but that documentation would be in the alien’s files.15

During the course of reviewing the files we read a number of quality

assurance team critiques of asylum officers’ positive and negative credible

fear determinations. In these reviews, quality assurance officials provided

extensive feedback on the quality of the decisions, including such things as

the need for more information, suggested follow-up questions to be asked

of the alien, additional ways to analyze issues relating to an alien’s

membership in a specific social group, and alternative wording for

summarizing key points. The analysis pointed out instances of not

following procedural guidance and, in some cases, questioned apparent

time lags in processing a case. The quality assurance team also noted what

it considered to be exemplary interviews.

According to INS data, about 8 percent of all aliens who inspectors

referred for a credible fear interview with an asylum officer later recanted

their claims of a fear of persecution or torture. Our analysis of these

withdrawals showed that the likelihood of aliens’ recanting their claims of

persecution or torture was affected principally by the alien’s region of

citizenship.

INS’ policy did not require asylum officers to document the reasons aliens

recanted their claim of a fear of persecution or torture. Our review showed

that asylum offices were not consistent in how they documented aliens’

recantations of their claims of a fear of persecution or torture. While INS

did not require supervisory review, we generally found evidence of such

reviews in the case files. However, INS has changed its policy to now

require asylum officers to document aliens’ reasons for withdrawing their

claims of a fear of persecution or torture and supervisors’ review.

Between April 1, 1997, and September 30, 1999, about 8 percent of 10,755

aliens who inspectors referred for a credible fear interview subsequently

recanted their claims of a fear of persecution or torture and had their cases

closed. This percentage did not vary substantially over time. Aliens who

recanted their claims of a fear of persecution or torture comprised 9

percent of closed cases in fiscal year 1997, 11 percent in fiscal year 1998,

and 7 percent in fiscal year 1999. As shown in table 3.6, alien recantation

rates varied from 3 to 15 percent among the eight asylum offices.

15 Since the aliens’ files were not readily available, we did not review them.

INS Initiated Steps to

Improve Controls Over

Aliens Who Withdrew

Their Request for a

Credible Fear

Interview

Data on Aliens Who

Recanted Their Claims of

Fear of Persecution or

Torture
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Percentage of claims

Asylum office Recanted fear

Did not recant

fear

Arlington, VA 11 89

Chicago, IL 3 97

Houston, TX 10 90

Los Angeles, CA 7 93

Miami, FL 6 94

New York, NY 15 85

Newark, NJ 14 86

San Francisco, CA 4 96

Source: GAO analysis of INS’ Asylum Pre-Screening System.

We examined the likelihood of aliens’ recanting their claims of fear of

persecution or torture, using the same set of factors used in our analysis of

the likelihood of a negative credible fear determination.16 As before, the

factor that had the most pronounced effect on the likelihood of aliens’

recanting their claims of a fear of persecution or torture was the alien’s

region of citizenship. The asylum office assigned to hear the claim and the

alien’s gender and age had less of an impact. The year in which the alien

attempted to enter the country and the alien’s status, as lead applicant for

other family members, did not have a significant impact on the likelihood

of recanting.

Our analysis showed that aliens from Mexico and from Central and South

America were more likely than aliens from Asia to recant their claims.

• Aliens from Mexico, for example were 24 times as likely as those from Asia

to recant their claims.

• Aliens from South America and Central America were about 12 and 6 times

as likely, respectively, to recant their claims as those from Asia.

• Aliens from the Middle East and the former Soviet Bloc nations were not

significantly different from aliens from Asia in terms of their likelihoods of

recanting their claims.

The likelihood of an alien recanting a claim of a fear of persecution or

torture also varied by the asylum office assigned to hear the alien’s case.

Aliens who were assigned to the Houston Asylum Office were about half as

likely to recant their claims as aliens assigned to the Miami Asylum Office.

16 These factors are the alien’s region of citizenship, age, and gender; whether the alien was traveling

alone or was the lead member of a family group; which asylum office was assigned to review the alien’s

case; and what fiscal year (1997, 1998, or 1999) the alien attempted to enter the United States. Our

results for the likelihood of aliens’ recanting their claims of a fear of persecution or torture are on the

basis of 9,674 cases.

Table 3.6: Percentage of Recanted

Claims by Asylum Office for Aliens Who

Attempted to Enter the United States

Between April 1, 1997, and September

30, 1999

Factors Associated With

Aliens’ Recanting Their

Claims of a Fear of

Persecution or Torture
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Aliens assigned to the Arlington, Newark, and New York Asylum Offices,

by contrast, were between 2 and 5 times as likely to recant their claims as

aliens assigned to the Miami Asylum Office. Aliens assigned to the

Chicago, Los Angeles, and San Francisco Asylum Offices did not have

significantly different recantation rates from aliens assigned to the Miami

Asylum Office.

Some other factors also had an impact on aliens’ decisions to recant their

claims of a fear of persecution or torture. However, these effects were less

important than those for the alien’s region of citizenship and the asylum

office assigned to hear the alien’s claim of a fear of persecution or torture.

For example,

• men were about twice as likely as women to recant their claims of a fear of

persecution or torture, and

• aliens 30 or over were about two to three times as likely as aliens under 20

to recant their claims of a fear of persecution or torture.

INS guidance requires that asylum officers document an alien’s wish to

withdraw a claim of a fear of persecution or torture (recanting their claim)

by having the alien (1) make this request in writing or (2) sign a statement

indicating that the decision was voluntary. The guidance does not,

however, require that asylum officers document the reason for the

withdrawal. Yet, INS has the responsibility under the 1996 Act to identify

aliens who claim to have a fear of persecution or torture if they are

returned to their home country and not to return aliens who are found to

have such a fear. By requiring asylum officers to document the reason

aliens recanted their claims and requiring supervisory review, INS would

be in a better position to determine whether it could be returning some

aliens to a country where they could be persecuted.

Our analysis of the three asylum offices showed general compliance with

INS guidance. However, we found that the Los Angeles, Miami, and New

York offices varied in the amount of documentation that they obtained

from aliens recanting their claims of a fear of persecution or torture. At

the 3 asylum offices, we reviewed 133 randomly selected cases from a

population of 232 cases in which aliens withdrew their requests for a

credible fear interview and recanted their claims of a fear of persecution

or torture.17 Two locations, New York and Miami, had aliens sign a

standardized letter stating that the alien did not want to go through the

credible fear process and would be allowed to go home as soon as travel

17 See appendix III for a listing of the sample size and population of each of the three asylum offices.

INS Clarified Requirements

for Documentation Needed

for Aliens Who Recant Their

Fear of Persecution or

Torture
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arrangements could be made. The letter also noted that the alien had been

advised that he or she would be barred from reentry into the United States.

The letter also stated that the alien was making the decision freely and

voluntarily and had not been coerced by an immigration officer or any

other person. In Miami, 15 of the 45 files we reviewed also contained a

memorandum prepared by the asylum officers that summarized the aliens’

reasons for recanting their claim of fear. In 37 of the 40 Los Angeles case

files we reviewed, we found documentation, such as (1) statements

written or signed by the aliens that described why they were recanting

their claims or (2) evidence of asylum officers asking specific questions

about the aliens’ original claims of a fear of persecution or torture and

recording the aliens’ responses. For three Los Angeles cases, we did not

find this documentation.

INS did not require that asylum officers document aliens’ reasons for

recanting their claims. Due to the various ways in which the offices

document withdrawals, we could not determine the reasons why aliens

recanted their claims of a fear of persecution or torture for 94 of the 133

cases. For those cases in the 2 asylum offices where a reason for

recantation was documented (39 cases), the cases cited most often by

aliens, respectively, were that the alien

• had no fear or had been misunderstood (22),

• did not want to stay in detention (12), or

• wished to be reunited with his or her family in their home country (5).

INS can process aliens who recant their claims under the expedited

removal process. In some cases, asylum officers, in consultation with

inspectors, may instead grant a withdrawal. We estimated that 220 of 232

aliens in our case file review were processed under expedited removal

with supervisory approval.

Our case file review in the New York Asylum Office showed that some

aliens expressed a desire to return to their home country after the asylum

officer had completed the interview; a credible fear determination had

been made; and, in some of these cases, referrals to a judge had been

issued.18 These aliens were allowed to withdraw their claims of a fear of

persecution or torture, and all were then processed as expedited removals.

According to an INS official, an alien can recant his or her claim at any

18 In cases where the alien meets the credible fear of persecution or torture standard, the asylum officer

is to refer the case to an immigration judge for further consideration and issue the alien a Notice to

Appear, INS Form I-862.
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time during the process, as long as the alien is under its jurisdiction. While

supervisors are to review expedited removal orders, they did not have to

review aliens’ decisions to recant their claims.

Of the three asylum offices we visited, the New York Asylum Office used

only a standardized letter that did not ask aliens their reason for recanting

their claims of a fear of persecution or torture. In one file we reviewed, an

alien sent a note from detention stating, “ I want to have my credible fear

cancelled for I want to be deported . . . I can’t stay in here [detention]

because I am an ulcer patient.” The alien later signed the standardized

form and was processed for expedited removal.

Without a standardized process for documenting the reasons for the aliens’

decision to recant their claim of a fear of persecution or torture, INS is not

in the best position to reduce the possibility of returning aliens to

countries where they might be persecuted. A standardized process that

includes (1) directing asylum officers to document the reasons why aliens

are recanting their claims of a fear of persecution or torture and (2) require

supervisors to review this documentation would

• strengthen INS’ control over the process by helping ensure that aliens who

had progressed far into the process (e.g., waiting for their hearing before

an immigration judge) were recanting their claim of a fear of persecution

or torture because they no longer had such a fear, rather than for some

other reason (e.g., health problems associated with being in detention) and

• help provide consistent application of withdrawal procedures among INS

asylum offices and thereby document the reasons the aliens were

recanting their fear of being returned.

We discussed this issue with an INS official responsible for asylum

processing. INS informed us that a more detailed record of an alien’s

reason for recanting his or her claim of a fear of persecution or torture and

review by a supervisory asylum officer should be implemented. It said that

a more extensive record might provide a clearer chronology in cases

similar to those that we sampled. Subsequently, on July 26, 2000, INS

required that when an alien decides to stop pursuing protection from

removal, an asylum officer will question the alien about his or her reason

and explain the process for removal and the ability of that alien to pursue

protection at any time prior to removal. Further, the asylum officer is to

complete a form19 that includes the alien’s reason for not asking for

19 Request for Dissolution of Credible Fear Process.
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protection from removal and the signature of the supervisory asylum

officer.

Our analysis of the file documentation of the credible fear determination

and the quality assurance team’s reviews of asylum officers’ decisions

indicate general compliance with INS’ procedures. For example, our

review of all 45 negative credible fear determinations at 3 asylum offices

showed that generally supervisory review existed and documentation

indicated that mandatory information was read to the alien.

In some cases, aliens recanted their claims after an asylum officer had

determined that they had a credible fear of persecution or torture and, they

were waiting to go before an immigration judge to make their claim for

asylum. Our review of case files showed that they did not always contain

documentation of the reasons why aliens were recanting their claims of a

fear of persecution or torture. While supervisors are to review the

expedited removal orders, they do not have to review aliens’ decisions to

recant their claims.

INS has a responsibility not to return aliens who have a fear of persecution

or torture. At the time of our review, INS did not require documentation

regarding the reasons that aliens recanted their fear of persecution or

torture. Therefore, it had no assurance that such aliens would not be

returned to places where they could be harmed. We pointed out that its

internal controls over such cases could be improved by requiring (1)

additional documentation on aliens’ reasons for recanting their claims of a

fear of persecution or torture to show that asylum officers are properly

handling such cases and (2) supervisory review of the related

documentation. This could provide a clearer chronology of cases in which

aliens recanted their claim of a fear of persecution or torture. Determining

and documenting the reasons aliens stated for recanting their claim of a

fear of persecution or torture could help INS reduce the possibility of

returning aliens to countries where they could be subjected to persecution

or torture. INS agreed and now requires that asylum officers complete a

form that contains an alien’s reason for pursuing protection from removal

and the signature of a supervisory asylum officer.

Conclusions
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INS has the discretion to release from detention aliens for whom an

asylum officer determined that a credible fear existed. Its policy favors

releasing such aliens provided it determines the aliens are likely to appear

for the removal hearing and do not pose a risk to the community. In

response to our survey, 29 of 33 INS district offices reported that in fiscal

year 1999, an estimated 78 percent of such aliens were released to await

their hearing before an immigration judge, although some differences

existed in district office detention practices. INS is issuing guidance that

would promote more consistent decisions about releasing aliens among

district offices.

INS released 5,320 aliens who were determined to have a credible fear of

persecution or torture between April 1, 1997, and September 30, 1999. As

of February 22, 2000, of the 5,320 aliens, 2,351 aliens also had received a

decision from an immigration judge. Of the 2,351 aliens, 1,000 aliens (42

percent) did not appear for their removal hearings before an immigration

judge and were subsequently ordered removed in absentia. EOIR officials

pointed out that over time more cases will be closed in which aliens will

have appeared for their removal hearings and consequently this will result

in a reduction of the failure to appear rate.

Once an asylum officer determines that aliens have a credible fear of

persecution or torture, INS’ October 1998 Detention Use Policy favors

release of such aliens after the district director or certain other INS

officials determine that the aliens will likely appear for their removal

hearing and will not pose a danger to the community. INS district offices

reported to us that in fiscal year 1999, 3,432 (or 78 percent) such aliens

were released. In responding to our survey, nearly all district offices told

us that they considered the alien’s criminal history and/or community ties

as important factors in making the decision to release or detain the alien.

Officials said that INS plans to clarify that headquarters and regional

managers have authority to make detention decisions.

In October 1998, INS revised its national detention policy and priority

system.1

The revised policy identified four categories of aliens for the

purpose of making detention decisions:

1

The change was in response to the expiration of the Transition Period Custody Rules. The expiration

of these rules discontinued INS’ discretionary authority in certain custody determinations; that is, they

had to detain more criminal aliens. As a result, more bed space was required for mandatory detention

cases.

INS Policy Favors

Release of Credible

Fear Aliens Provided

They Meet Certain

Conditions

INS Detention Policy
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• Category 1 includes aliens who are for the most part required to be

detained (e.g., aliens chargeable as terrorists or aliens convicted of

aggravated felonies);

• Category 2 includes aliens who are removable because of national

concerns or having engaged in alien smuggling;

• Category 3 includes aliens whom INS apprehended at a work site and had

committed fraud in obtaining employment; and

• Category 4 includes aliens in cases when asylum officers determined that

they had a credible fear of persecution or torture and as a result were

referred to immigration judges for full removal proceedings.

Under INS’ detention policy, the categories are sequentially prioritized

(i.e., aliens in category 2 generally should be detained before aliens in

category 3). INS requires aliens who express a fear of persecution or

torture to an INS inspector at a port of entry to be detained (i.e., category

1) unless release is required to meet a medical emergency or legitimate law

enforcement objectives, such as serving as a witness. If an asylum officer

determines that the alien has a credible fear of persecution or torture, the

alien is to be placed in removal proceedings before an immigration judge

where he or she may present a claim for asylum. At this point, the alien is

placed in category 4 and can be released at the discretion of the district

director or certain other INS officials.

Under this priority system, these INS officials have discretion in their

implementation of the detention policy. INS requires the reasons for the

detention decision to be clearly documented in writing and placed in the

alien’s file if a custody determination is not in keeping with its policy.2 INS

policy favors release of aliens in cases when an asylum officer determined

those aliens to have a credible fear of persecution or torture, provided that

the aliens do not pose a risk of flight or danger to the community.

2

Officials at 16 of the 33 district offices said that they documented their reasons. Twelve district offices

reported they did not record the decision, three district offices did not respond to this question, and

two district offices transferred aliens who claim a fear of persecution or torture to other district

offices.
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In response to our survey of the 33 INS district offices, 293reported that in

fiscal year 19994

they released 3,432 of the 4,391 (78 percent) aliens, in

cases when asylum officers determined those aliens to have a credible fear

of persecution or torture, as shown in table 4.1.

Aliens processed Aliens released Aliens detained

Number of

offices Number Percent Number Percent Number Percent

District offices that

released aliens

12 3,069 100 2,998 98 71 2

District offices that

detained aliens

4 614 100 239 39 375 61

District offices that did

not specify any

general practice

13 708 100 195 28 513 72

Total 29 4,391 100 3,432 78 959 22

Source: Analysis of GAO survey of INS district offices.

The district offices initially decided to detain the other 22 percent of the

aliens; however, the district offices may have subsequently released the

aliens after they met certain conditions, such as posting a bond.

We queried INS district offices regarding their general detention practices

for aliens in cases when an asylum officer has determined the aliens to

have a credible fear of persecution or torture. We found that 12 of 29

district offices said that they generally released such aliens before their

removal hearing before an immigration judge.

• Of the 12 district offices that said they generally released aliens, 10

reported that they released in accordance with INS’ detention policy (i.e.,

3

The 29 district offices provided estimated and actual numbers of aliens who were released or

detained—16 district offices gave estimated numbers, 9 gave exact numbers, 2 gave a combination of

exact and estimated numbers, and 2 did not indicate whether the numbers were exact or estimated.

Two district offices did not provide numbers and for two other district offices the question was not

applicable because they transferred aliens who claim to have a fear of persecution or torture to other

district offices.

4 INS headquarters reported 6,515 aliens in cases when an asylum officer determined those aliens to

have a credible fear of persecution or torture for fiscal year 1999. This figure differs from the number

of aliens reported by the district offices in our survey because headquarters uses an asylum officers

database which they consider to be the most accurate of the various INS databases. Most district

offices reported that the data used to respond to our survey did not come from one of the standard INS

databases. As a result, the number of aliens could not be reconciled. However, in comparing the

headquarters reported figures with the district reported figures we noted three district offices (Los

Angeles, Chicago, and Miami) accounted for 1,759 of the 2,124 discrepancy. These three district offices

released virtually all credible fear aliens under their jurisdictions.

Most Aliens Found to Have

a Credible Fear of

Persecution or Torture Are

Released

Table 4.1: District Practices for

Detaining or Releasing Aliens Who Have

a Credible Fear in Fiscal Year 1999
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the district offices determined that the alien was not a threat to the

community or a flight risk). One district reported that it considered all

aliens in cases when an asylum officer determined the alien to have a

credible fear of persecution or torture to be flight risks and normally

required a $5,000 bond. The other district reported that it released such

aliens because of the lack of detention space. These 12 district offices

reported that it released 98 percent of the aliens that they processed. In

addition, these offices processed 68 percent of 4,391 such aliens, as shown

in table 4.1.

• Four other district offices reported that they generally detained aliens in

cases when an asylum officer determined the alien to have a credible fear

of persecution or torture on the basis of their interpretation of the

headquarters directive. However, such decisions also depended on the

availability of detention space or requests by the aliens’ lawyers to INS to

release the alien. These 4 district offices reported that they detained 61

percent of the aliens that they processed, as shown in table 4.1.

• Thirteen district offices did not identify any general practice to detain or

release aliens in cases when an asylum officer determined the alien to have

a credible fear of persecution or torture. Of these 13 district offices, 10

district offices did not specifically comment on their detention practices.

Three offices responded that they evaluated such aliens on a case-by-case

basis, looking at the strength and credibility of the aliens’ claims of fear of

persecution or torture in deciding to release or detain them. These 13

district offices reported that they detained 72 percent of the aliens that

they processed, as shown in table 4.1.

Guidance for making a release decision is found in regulations.5 In part, the

regulations state that the district director may require reasonable

assurances that the alien will appear at all hearings. They also state that

the aliens do not have to meet all the factors listed in the regulations to be

released. The factors to ensure appearance include the alien posting a

bond, having community ties, or having to meet such conditions as

periodic reporting to INS of their whereabouts. The guidance concludes by

stating that the district director should apply reasonable discretion in

making detention decisions.

In responding to our survey, district offices identified several factors that

they considered in making release or detention decisions regarding aliens

in cases when an asylum officer determined those aliens to have a credible

5 8 C.F.R. 212.5.

Criminal History and

Community Ties Are the

Main Factors District

Offices Said They Consider

in the Release or Detain

Decision
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fear of persecution or torture. They are required to determine if the aliens

are likely to appear for their removal hearings before an immigration judge

and are not a danger to the community. However, one district office

reported only considering the aliens’ family ties or sponsorship, whereas

officials at another district office said that they considered eight different

factors in making the decision to release or detain. Table 4.2 categorizes

the factors that 28 of the 29 responding district offices reported that they

considered.

Factors reported

Number of district

offices that reported

this factor

Community ties: evidence of family or friends in the United

States or sponsorship of religious or charitable groups 24

Criminal history check against law enforcement databases 24

Overall behavior and demeanor 10

Ability to establish the identity of the alien 9

Health and medical considerations 9

Means and manner of entry into the United States 6

The need to assist in law enforcement efforts 5

Means of support so as not to become a public charge 4

Detention does not serve the public interest 4

Strength of credible fear claim 2

Any legal bars to asylum 2

Other miscellaneous factors 7

Note: District offices could have reported more than one factor.

Source: Analysis of GAO survey of INS districts.

While indicating compliance with INS’ detention guidance, 28 district

offices in our survey reported other factors they considered when making

release or detention decisions. One district office reported that since

asylum officers were determining that aliens had a credible fear of

persecution or torture 99 percent of the time, it did not consider the

asylum officers’ findings to be a viable prescreening process or useful in

making detention decisions. A port director made a similar comment.

Another district responded that they deferred to the determination made

by the asylum officer (i.e., the district office released the alien if the

asylum officer determined that the alien had a credible fear of persecution

or torture).

INS plans to revise its regulations this year to affirm the authority of

headquarters and regional managers to make detention and release

decisions. According to INS, these new regulatory changes will clarify that

headquarters and regional managers, and not only district directors, have

Table 4.2: Factors Reported in Decisions

to Release or Detain Aliens

Pending INS Actions

Affecting Detention Policy
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the authority to make these decisions. Through these regulations, INS aims

to provide the basis for stronger oversight of detention and release

decisions nationwide. As part of this effort, INS plans to standardize

certain components of the decisionmaking process.

INS plans to issue instructions that would require that noncriminal aliens,

in those cases when an asylum officer determined the alien to have a

credible fear of persecution or torture, be given a uniform letter specifying

the reasons for granting or denying release. According to INS, this letter is

an effort to standardize the release decisions among district offices.

Our analysis showed that 1,000 of the 2,351 aliens who were found to have

a credible fear of persecution or torture from April 1, 1997, through

September 30, 1999, were released from INS custody and received a

decision on their case from an immigration judge but did not appear for

their removal hearings.6 Over half of these aliens who did not appear had

requested and received a change of removal hearing location. During the

same period, 3,140 of 7,947 aliens determined to have a credible fear of

persecution or torture had not applied for asylum. Of those aliens, 1,338 of

them did not file their asylum applications within 1 year of entering the

country, as required. INS has studies in process regarding factors related

to alien appearance rates at removal hearings.

In those cases when an asylum officer determines that an alien has a

credible fear of persecution or torture7

and the alien is released from INS

custody, the alien is required to appear at removal hearings before an

immigration judge. At the removal hearings, aliens are to present their

claims for asylum, and the immigration judge is to rule on the merits of the

claim. Those aliens whose claims are denied are to be removed from the

country and returned to their home country.8

In using a joint INS and EOIR

database, we found that 7,947 aliens were found to have a credible fear of

persecution or torture between April 1, 1997,9

and September 30, 1999. As

6

Three nationalities—Sri Lankans, Chinese, and Haitians—represented 72 percent of the 1,000 aliens

who were released and ordered removed in absentia—442 Sri Lankans were ordered removed in

absentia out of 500 released Sri Lankans for whom an immigration judge made a decision, 164 Chinese

were ordered removed in absentia out of 488 released Chinese for whom an immigration judge made a

decision, and 115 Haitians were ordered removed in absentia out of 374 released Haitians for whom an

immigration judge made a decision.

7

In addition, if an immigration judge vacates an asylum officer’s negative credible fear determination,

these aliens are required to appear at a removal hearing.

8

Aliens can appeal the decision of the immigration judge to EOIR’s Board of Immigration Appeals.

9 The inception date of the expedited removal program.

Indications Suggest

Many Aliens May Be

Using the Credible

Fear Process to

Illegally Remain in the

United States

A Significant Number of

Released Aliens Are Not

Appearing for Their

Removal Hearings
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of February 22, 2000, of the 7,947 aliens, 5,320 aliens were released from

INS custody. Of these 5,320 aliens, 2,351 aliens received an immigration

judge’s decision. Of the 2,351 aliens, 1,000 aliens (or 42 percent) did not

appear for their removal hearing before an immigration judge.10 In all 1,000

cases in which the alien did not appear for their removal hearing,

immigration judges ordered them removed from this country in absentia.11

In commenting on a draft of the report, EOIR officials confirmed that they

essentially agreed with our analysis and methodology which revealed that,

as of February 22, 2000, 42 percent of the aliens who had been released

and had a final decision by the court had not appeared for their removal

hearing before an immigration judge and had received a ruling in absentia.

However, the officials explained that the majority of the in absentia orders

were entered at the master calendar hearing stage,12 where the alien fails to

appear for his or her hearing. In addition, EOIR officials noted that cases

that are set for a merits hearing ( i.e., for aliens who appear and wish to

pursue their claim) tend to be scheduled on average of 1 year from the

initial master calendar hearing date. Consequently, as more of the 5,320

cases13 are completed over time, a greater percentage of aliens will appear

for their hearing, which will result in a lower in absentia rate. Therefore,

cases closed from April 1, 1997, through fiscal year 1999 were aliens who

did not appear for their initial removal hearing and were ordered removed

from the United States at that time. Conversely, those cases which

remained open involved aliens who had appeared for their initial removal

hearing and were scheduled for subsequent merits hearings to determine if

they should be granted relief from removal (e.g., granted asylum).

Regarding the case sample analyzed by us, EOIR determined that the

failure to appear rate was 34 percent, as of August 10, 2000. EOIR

estimated that eventually the failure to appear rate would be as low as 25

percent when all the cases are completed.

10 In three cases, the immigration judges granted the aliens some form of relief from removal in

absentia. We did not include these cases in the 2,351 decisions because we did not know the basis for

the immigration judges’ decisions.

11 In ordering an alien removed in absentia, the immigration judge is to be assured by clear,

unequivocal, and convincing evidence that the alien received proper notification of the hearing.

12 The Judge explains the alien's rights, ascertains whether they received notice of the hearing from the

INS, and inquires whether they understand the nature of the charges and whether they want to admit

or deny the charges. They also handle other preliminary matters, such as the availability of free legal

services, and give the alien a list of such service providers.

13 The 5,320 cases are on the basis of our analysis.
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According to a 1996 report by the Department of Justice’s Office of the

Inspector General, aliens who INS did not detain were not likely to be

removed from the country.14 The report stated that, on the basis of its

analysis of fiscal year 1994 data, only 11 percent of aliens who were not

detained were actually removed at the end of the removal proceedings, 15

versus well over 90 percent of those aliens who were detained throughout

the process.

In those cases when an asylum officer determined an alien to have a

credible fear of persecution or torture and the alien was subsequently

released, the alien can ask an immigration judge for a change in removal

hearing location. According to an EOIR official, immigration judges’

decisions to grant aliens’ requests for a change in the hearing location are

done on a case-by-case basis. Further, according to the Chief Immigration

Judge, before a change of location may be granted, an address where the

alien will reside must be provided to the immigration judge.16 The

guidance does not require any verification of the address provided. Our

analysis of the INS and EOIR data from April 1, 1997, through fiscal year

1999 showed that 3,695 of the 5,320 aliens who were released received a

change of location for their removal hearing. Of those 3,695 aliens, 1,467

aliens had a decision made by an immigration judge. Of the 1,467 aliens,

557 aliens (or 38 percent) were ordered removed in absentia because they

failed to appear for their removal hearings.17 The Los Angeles, Miami, and

New York immigration courts were the most common changes of location

requested. Aliens who changed locations and failed to appear were

ordered removed in absentia in the Los Angeles, Miami, and New York

immigration courts, in 60 percent (62 of 103) of the cases, 50 percent (333

of 662) of the cases, and 22 percent (91 of 406) of the cases, respectively.

During a discussion with immigration judges in New York, they said that

the records of some aliens who received a change of hearing location to

New York from Los Angeles contained incorrect information, such as

nonexistent addresses as their residences.18

14 Department of Justice, Office of Inspector General Inspection Report, Immigration and

Naturalization Service Deportation of Aliens After Final Orders Have Been Issued (I-96-03, Mar. 1996).

15 Previously, removal hearings were called deportation hearings.

168 C.F.R. 3.14, 3.20 and Operating Policy and Procedures Memorandum 97-10, Change of Venue.

17 The 557 aliens ordered removed in absentia represented 56 percent of the 1,000 released aliens who

were ordered removed in absentia.

18 While EOIR did not comment on this analysis, these percentages might be reduced as cases are

closed over time.

Many Aliens Who Changed

Removal Hearing Location Were

Not Appearing for Their

Hearings
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To determine whether or not aliens who claimed to have a fear of

persecution or torture pursued their claim of asylum, we reviewed the rate

by which claimants failed to file applications for asylum. Generally, these

aliens have 1 year from their arrival to file an application showing their

intent to request asylum.

Our analysis of the joint INS and EOIR database showed that since the

inception of the expedited removal program on April 1, 1997, through fiscal

year 1999, 7,947 aliens were determined to have a credible fear of

persecution or torture. Of these 7,947 aliens, 3,140 aliens had not filed for

asylum, as of February 22, 2000. Of the 3,140 aliens who had not filed,

1,338 (or 43 percent) aliens missed the 1-year required filing deadline and

as a result, generally may not be able to file for asylum.19 In addition, 1,239

of the 3,140 aliens who did not file an asylum application were

subsequently ordered removed by an immigration judge.20

Recent INS National and Regional Intelligence Assessments reported that

smuggling people from the People’s Republic of China is an ongoing and

growing phenomenon, using every known method of illegal entry into the

United States. According to the assessments, the vast majority of the illegal

entrants who were caught appeared to have been coached and instructed

to claim fear of persecution. Almost all were found by asylum officers to

meet the standard for credible fear of persecution and were released

pending a removal hearing. However, only a few of these aliens actually

showed up for their scheduled removal hearings, according to the

assessments.

In addition, a March, 2000 Canadian Parliamentary Report21 on major

immigration issues stated that Chinese migrants who arrived by boat in

Canada last year had paid enormous sums to traffickers for their voyage.

The report also stated that the final destination for many was not Canada

but the United States, and most often New York City.

In September 1996, INS commissioned the Vera Institute of Justice to

implement a 3-year demonstration Appearance Assistance Program (AAP)

to (1) increase appearance rates in immigration courts and compliance

19 Other forms of relief from removal from the United States may be available, including asylum as a

result of provisions other than those provided for by expedited removal.

20 Of the 1,239 aliens who had not filed an asylum application and were ordered removed by an

immigration judge, 733 also missed the 1-year required filing deadline.

21 Refugee Protection and Border Security: Striking a Balance, report of the Canadian House of

Commons Standing Committee on Citizenship and Immigration, March 2000.

Many Aliens Are Not Filing

Asylum Applications

Studies Suggested Some

Illegal Aliens Claimed a

Fear of Persecution or

Torture to Remain in the

Country

INS Actions
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with the law among aliens in removal proceedings and (2) address a

combination of problems, such as the lack of detention facilities having an

impact on released aliens who were not appearing in court and rarely

complying with removal orders. In addition, the Institute was to make

recommendations on the more efficient use of detention facilities.

To qualify for AAP, aliens had to meet criteria on the basis of their

community ties, record of compliance in previous proceedings, and threat

to public safety. The Institute interviewed and investigated 360 asylum

seekers who were subject to expedited removal to determine if they met

criteria to participate in the supervision program. The Institute

recommended 85 asylum seekers who were subject to expedited removal

between August 1998 and October 1999 to participate in AAP. INS

approved 79 of these asylum seekers. The Institute was to supervise the

participants throughout the duration of their immigration proceedings or

until the program ended. As of March 31, 2000, of the 79 aliens, 46 aliens

had their asylum claims decided by an immigration judge in regular

removal proceedings. The Institute reported the following outcomes: 18

were granted relief; 17 were ordered removed; 6 were ordered removed in

absentia; 4 were allowed to remain in the United States on grounds other

than asylum; and 1 was granted voluntary departure. On the basis of their

findings, the Institute concluded that with supervision, a high degree of

compliance with immigration procedures and requirements can be

obtained at a lower cost, without detention. The Institute recommended

that INS consider the implementation of a broader, permanent supervision

program.

It is not clear if the results of the AAP demonstration could be widely

implemented with the same outcomes. According to a New York INS

district official, AAP’s selection process favored aliens claiming a credible

fear of persecution or torture who had more easily established and

verifiable identities, more community ties, and a greater likelihood of

appearing. Further, the official added that aliens who participated in AAP

did so voluntarily and therefore, this may have an impact on the analysis of

the study results.

In January 1999, the INS Commissioner asked for an internal study to

determine (1) the rate at which aliens who claimed to have a fear of

persecution or torture were not appearing for their removal hearings and

(2) the reason all INS district offices were not following headquarters

policy that favored the release of aliens found to have a credible fear of

persecution or torture. Regarding the rate of nonappearance for removal

hearings, INS was analyzing data from the same source we used in this
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report. At the time of our review, INS was not routinely analyzing such

data regarding aliens who were released and whether they appeared for

their subsequent removal hearing.

On the basis of our analysis of our district office survey, an estimated 78

percent of the aliens, in cases when asylum officers determined those

aliens to have a credible fear of persecution or torture, were released in

fiscal year 1999. Our analysis of the joint INS and EOIR database showed

that, as of February 22, 2000, 5,320 of these aliens were released from INS

custody, and of these, 2,351 received an immigration judge’s decision. Of

the 2,351, 1,000 (or 42 percent) aliens did not appear for their removal

hearing before an immigration judge. In all 1,000 cases in which the alien

did not appear for their removal hearing, immigration judges ordered them

removed from this country in absentia. As more cases involving the 5,320

released aliens who subsequently appear for their hearing are decided, the

failure to appear rate would be as low as 25 percent, according to EOIR.

INS has ongoing efforts looking at nonappearance rates. However, INS’

recent policy that favors releasing aliens from detention contributed to

some of the 1,000 aliens not appearing for their removal hearings. These

data suggest that many aliens may be using the credible fear process to

illegally remain in the United States.

Another issue that needs to be addressed involves the policies and

procedures surrounding aliens’ requests for a change of hearing locations.

Our analysis revealed that 557 aliens who requested and received a change

of location of their removal hearing did not appear for their hearings.

According to the Chief Immigration Judge, in granting a change of hearing

location the address where the alien will reside must be provided to the

immigration judge, but no requirement exists to verify the alien’s new

address.

We recommend that the Attorney General direct

• INS to analyze the characteristics of those aliens who appear and those

who do not appear for their removal hearing and to use the results to

reevaluate its policy for when to release aliens in cases when an asylum

officer has determined the aliens to have a credible fear of persecution or

torture.

• INS and EOIR to work together to establish a system to (1) have the aliens’

new address verified by using readily available information sources and (2)

provide the results to the immigration judges for their use in making

Conclusion

Recommendations
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change of location decisions.

In commenting on a draft of this report, Department of Justice officials

suggested that the second recommendation—related to verifying the

addresses of aliens who request a change of hearing location—be modified

to provide flexibility for the implementation of our recommendation. In

response, we changed the recommendation to have INS and EOIR work

together to establish a system to verify aliens’ addresses.

Agency Comments
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INS uses a variety of facilities for detaining aliens. INS has direct control

over its own and contract facilities but less control over local city and

county jails. We observed that the conditions and available services

provided aliens varied at the 12 facilities we visited. Generally, aliens who

were housed in five INS-controlled facilities had access to more services

than aliens housed in the seven city and county jails. In addition, INScontrolled facilities provided services in a more standardized manner than

city and county jails.

INS primarily uses SPC, contract, city, and county facilities to detain aliens

who are subject to expedited removal and those who claim a fear of

persecution or torture. INS requires SPCs and contract facilities to meet

ACA1 standards, but cannot require city and county facilities to meet these

same standards. In fiscal year 1999, our analysis of INS district offices’

responses showed that about 70 percent of the 959 detained aliens in cases

when an asylum officer had determined the aliens had a credible fear of

persecution or torture were detained in INS-controlled facilities (i.e., SPCs

and contractor facilities). At the time of our review, INS was developing

detention standards for all the facilities that INS used to detain aliens,

including aliens in cases when an asylum officer had determined the aliens

had a credible fear of persecution or torture.

In fiscal year 1999, district directors decided to detain 959 aliens after

asylum officers determined that the aliens had a credible fear of

persecution or torture. Of the aliens detained, about 70 percent were

housed in INS-controlled facilities.

INS has recognized a need for all aliens in INS’ custody to be subject to

uniform detention standards. At the time of our review, INS was

developing and issuing standards for various services as they were drafted.

INS had already issued 17 standards and was expected to issue a total of

39 standards. Upon issuance, all standards are to apply immediately to

INS-controlled facilities, both those that were operated by INS and those

that were operated under direct contract. INS planned to phase in the

standards’ applicability to all other facilities in which INS detainees are

housed, including county and city jails. INS planned to implement the

standards in INS-controlled facilities by imposing specific procedural

requirements. Other facilities were to be permitted to implement the

standards under their own guidelines. For example, while INS-controlled

1

The ACA is a nationally recognized association that is committed to continually reviewing and

updating standards to ensure that they reflect the current professional requirements in the field of

corrections. Their standards are used as the professional benchmark for judging the quality of a

detention operation.

Facility Conditions

Majority of Detained Aliens

Were Housed in INScontrolled Facilities
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facilities would be required to have 18-inch partitions between telephones

to ensure privacy, local facilities would have the option of adopting this

procedure or using a private room or other means to meet the telephone

privacy standard.

INS requires all of its SPCs and contract facilities to be accredited by the

ACA. At the time of our review, 12 of 18 SPCs and contract facilities had

obtained ACA accreditation. Table 5.1 shows which INS-controlled

facilities were ACA accredited and the status of those not accredited.

Facility

Date ACA

accredited Status of facilities seeking ACA accreditation

SPCs

Aquadilla, PR N/A Accreditation audit to begin in August 2000

Buffalo, NY August 1999 N/A

El Centro, CA January 1997 N/A

El Paso, TX January 2000 N/A

Florence, AZ January 1999 N/A

Krome, FL N/A Accreditation expected by November 2000

Port Isabel, TX N/A Accreditation expected by April 2001

San Pedro, CA April 1998 N/A

Varick Street, NY N/A Accreditation expected by December 2000

Contract facilities

Aurora, CO August 1998 N/A

Jamaica, NY January 1999 N/A

Houston, TX January 1999 N/A

Laredo, TX N/A Accreditation not required under current contract

Elizabeth, NJ January 1999 N/A

San Diego, CA N/A Accreditation expected by December 2001

Seattle, WA August 1996 N/A

Joint federal facilities

Oakdale, LA January 1997 N/A

Eloy, AZ August 1997 N/A

Note: N/A means not applicable.

Source: ACA and facility officials.

According to an INS official, INS headquarters had agreements with over

700 local jails for use of their facilities in fiscal year 1999. Each INS

district office had the authority to enter into an agreement or use existing

U.S. Marshal agreements with local jails for detention space. ACA has

accredited about 70 local jails throughout the United States, some of which

INS may have been using.

ACA Accreditation

Table 5.1: ACA Accreditation of INSControlled Facilities
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We visited 12 facilities that were used to detain nationwide about 70

percent of the aliens in cases when an asylum officer had determined the

aliens had a credible fear of persecution or torture in fiscal year 1999.

These facilities consisted of two SPCs, three contract facilities, and seven

local jails. We found that conditions and available services provided for

the aliens varied. However, on the basis of discussions with officials at the

12 facilities, INS-controlled facilities generally provided the following

services in a uniform manner and to a greater extent than did the local

jails:

• segregation of detainees,

• telephones,

• diet,

• law library,

• visitation,

• health care, and

• recreation.

Regarding the separation of aliens, in cases when an asylum officer had

determined the aliens had a credible fear of persecution or torture, we

observed that male aliens were mixed with criminals in 5 of 12 facilities (1

contract facility and 4 local jails). Female aliens were mixed with

criminals in 6 of 12 facilities (1 SPC, 1 contract facility and 4 local jails).

The comingling of criminals with aliens in the INS-controlled facilities is

not consistent with INS standards nor is it in accordance with ACA

standards or UNHCR principles/guidance. However, the comingling of

females at these facilities was practiced because INS believed that females

were not as violent as males and thus, there was no need to separate them.

Regarding the use of telephones, to make outgoing calls, officials at the

facilities told us that all the facilities provided aliens with telephone

access. However, rules on telephone usage varied. For example, four

facilities (one SPC, two contract facilities, and one local jail) permitted 24-

hour access, while the other eight facilities placed limitations on hours

when aliens could use the telephones. All 12 facilities had the telephones

located in living areas where the aliens slept. In addition, all 12 facilities

permitted the aliens to make collect calls. Officials at two of the facilities

said that time limits on the length of calls were enforced, whereas, the

other 10 facilities permitted unlimited or did not enforce time limits on

calls.

Regarding the meals provided to the aliens, 11 of the 12 facilities made

accommodations for the specific dietary needs of the detained aliens, such

Conditions in INSControlled Facilities Were

Generally Different From

Local Jails

Segregation of Detainees

Telephones

Meals
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as for religious or health diets. Generally, the weekly menus were varied

on 4- or 5-week cycles and were reviewed by a dietitian.

Regarding law libraries, 11 of 12 facilities permitted detainees access to

legal materials. The remaining facility, a local jail, did not have a law

library. Of the 11 facilities with legal materials, 2 local jails did not have

current immigration-related law materials.2

In addition, two contract

facilities did not have laws, regulations, guidance or related materials

pertaining to expedited removal. Generally aliens had access to law

materials on a daily basis when they requested access. The INS-controlled

facilities allowed free photocopying of legal materials and provided

typewriters and/or computers. Generally, local jails allowed free

photocopying and provided typewriters; however, two of these facilities

did not provide any of these services.

Regarding visitation, INS-controlled facilities generally had uniform

practices, whereas local jails had a wide range of practices. For example,

family visitation at INS-controlled facilities generally provided for

noncontact visits3

for 1 hour, 2 to 4 days a week. Local jail visitation

policies generally called for noncontact visits for a half an hour to 10 hours

with extended hours if no one was waiting, 1 to 7 days a week.

Regarding attorney visits, attorneys could generally visit 7 days a week in

all facilities, but their ability to have contact visits varied. For example,

three INS-controlled facilities and two local jails allowed contact visits

with aliens and their attorneys, and two INS-controlled facilities and five

local jails did not allow contact visits between the aliens and their

attorneys. Visiting hours for attorneys at all facilities ranged from 8.5

hours to 24 hours a day.

Regarding health care, all 12 facilities we visited had established

procedures and required that at least one nurse be available on site at all

times. The range of health care services varied from physician-staffed onsite accredited facilities4 to access to an on-call physician. For example,

four of the five INS-controlled facilities had on-site, accredited health care

facilities staffed by at least one physician and supporting staff 5 days a

2

We considered current immigration-related law materials to be dated April 1997 or later so as to

include materials pertaining to expedited removal.

3

Basically, noncontact visit means there is a physical barrier between the alien and the visitor.

4

For example, accreditation by the National Commission on Correctional Health Care, the Joint

Commission on Accreditation of Healthcare Organizations, or the California Department of

Corrections.

Law Libraries

Visitation

Health Care
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week. Three of the seven local jails had on-site accredited health care

facilities staffed by at least one physician and supporting staff 1 to 3 days a

week. Two local jails had on-call physician services only. All facilities had

contracts for off-site services not provided on-site. Generally, all facilities

screened aliens at intake for infectious and mental disease, and aliens had

access to their medical records after being released from the facility.

Regarding recreation, INS-controlled facilities generally had uniform

practices in that each facility provided team games and exercise

equipment in outdoor recreation for at least 1 hour a day, 7 days a week.

Local jails’ outdoor recreation practices varied. For example, three jails

provided outdoor recreation from 1 to 14 hours a day, 3 to 7 days a week.

Four jails had team games in either their outdoor or indoor recreation

programs. Only 1 of the 7 jails had exercise equipment. Two jails offered

no recreation.

Regarding day room activities, all 12 facilities we visited had televisions

and generally provided board games and cards. INS-controlled facilities

generally allowed personal radios with headphones, but local jails did not

allow these items.

Regarding educational, vocational, and work programs, none of the

facilities we visited provided vocational opportunities, and 6 of 12 facilities

provided some educational services. INS-controlled facilities generally

provided paid voluntary work programs, whereas three of the seven local

jails provided unpaid voluntary work programs.

Detention conditions varied among the six ports of entry we visited. The

conditions ranged from aliens being handcuffed to wooden benches to

separate gender lounges with various amenities. These facilities usually

detained aliens for less than 24 hours. INS is a tenant at air terminals that

serve as ports of entry, and has little detention space. According to INS

officials, newer terminals are being designed to accommodate INS’

detention needs.

Our review showed that aliens who were detained in INS controlledfacilities had access to more services than aliens housed in city and county

jails. INS has recognized the need for all aliens in its custody to be

subjected to uniform detention standards and was in the process of

developing and issuing such standards. Establishing such standards

should help INS ensure that detained aliens are treated consistently at all

facilities in which INS detains aliens.

Recreation

Airport Detention

Conclusions
Page 79 GAO/GGD-00-176 Improve Expedited Removal Process
Appendix I

Additional Information on Aliens Subject to

Expedited Removal

Page 80 GAO/GGD-00-176 Improve Expedited Removal Process

The following tables represent data on aliens who attempted to enter the

United States between October 1, 1998, and September 30, 1999, and were

processed under the expedited removal provision. These data include

information on aliens who

• were ordered removed from the country,

• were allowed to withdraw their applications for admission, or

• were referred for a credible fear interview.

These data do not include information on those aliens subject to expedited

removal who swear under oath to be U.S. citizens, lawful permanent

residents, or have refugee or asylee status, and are referred to an

immigration judge for a review of this claim.

These data are presented separately for the nation’s airports and for the

largest land port of entry at San Ysidro, California. Data for airports come

from INS’ Record of Intercepted Passenger System. Data for San Ysidro

come from INS’ Port of Entry Tracking System.

These data do not include aliens under 18 years of age to make this

analysis consistent with analyses presented elsewhere in this report and

because under INS policy, unaccompanied minors are generally not

subject to expedited removal. However, in some instances, minors may be

subject to certain expedited removal processes. For example, under INS

guidance, inspectors are encouraged to allow unaccompanied minors to

withdraw their applications for entry. Further, minors who are

accompanied by adults may, in some cases, be ordered removed, or be

referred to an asylum officer for a credible fear interview, if the adults they

are accompanying are to be removed or referred. Excluding minors from

the tables below, generally does not substantially affect the reported

percentages. However, in some cases, the reported number of cases

would have changed had we included them. For example, in table I.1, with

minors included, the number of persons referred from New York's JFK

airport for a credible fear interview rises from 545 to 653. Including

minors in table I.11, for aliens subject to expedited removal at the San

Ysidro port of entry, would have affected the reported percentages,

because inspectors in that location allow a large number of minors to

withdraw their applications for entry.
Appendix I

Additional Information on Aliens Subject to Expedited Removal

Page 81 GAO/GGD-00-176 Improve Expedited Removal Process

Ordered removed Allowed to withdraw Referred for credible fear Interview

Airport Number Percent Number Percent Number Percent

New York (JFK) 2,116 70 381 13 545 18

Miami 825 30 509 18 1,423 52

Los Angeles 963 43 458 20 830 37

Houstona744 38 1,123 58 83 4

Newark 525 33 733 47 310 20

Chicago 746 47 344 22 488 31

Atlanta 454 44 521 50 62 6

San Francisco 185 24 461 59 131 17

Dallas 426 56 318 42 14 2

All others 459 23 1,062 54 457 23

Gender

Male 4,892 44 3,510 31 2,815 25

Female 2,551 39 2,400 37 1,528 24

Age

18-19 367 38 259 27 329 34

20-29 3,340 42 2,389 30 2,309 29

30-39 2,364 44 1,804 33 1,257 23

40-49 1,024 44 965 41 346 15

50 and older 348 37 493 52 102 11

Region of

citizenshipb

Africa 258 29 130 14 510 57

Asia 844 21 1,115 28 2,012 51

Caribbean 1,054 49 179 8 921 43

Central America 665 44 739 49 97 6

Mexico 2,028 56 1,536 43 34 1

Middle East 169 32 195 37 165 31

South America 1,909 58 1,136 35 238 7

Former Soviet Bloc 340 32 445 42 287 27

Other 176 26 435 63 79 11

a

Data for February 1999 missing for Houston airport.

b

We grouped 172 countries of citizenship by regions of the world, because of the small number of

cases in some countries. The regions we used include the following countries, among others: Asia

(includes China, India, Pakistan, the Philippines, and Sri Lanka), Africa (includes Ghana, Niger,

Nigeria, and Somalia), the Caribbean (includes Cuba, the Dominican Republic, Haiti, and Jamaica),

Central America (includes El Salvador, Guatemala, and Honduras), the Middle East (includes Algeria,

Iran, Iraq, Israel, and Lebanon), South America (includes Brazil, Colombia, Ecuador, Peru, and

Venezuela), and the former Soviet Bloc (includes Albania, the Czech Republic, the Ukraine, Russia,

and Yugoslavia), and Other (includes Australia, Canada, France, Great Britain, and New Zealand).

We included Mexico separately because it was the only North American country included in the

analysis and traditionally has been responsible for the largest group of illegal aliens in the United

States.

Source: GAO analysis of INS data.

Table I.1: Dispositions of Aliens Subject to Expedited Removal Provision Between October 1, 1998, and September 30, 1999, at

the Nation’s Airports
Appendix I

Additional Information on Aliens Subject to Expedited Removal

Page 82 GAO/GGD-00-176 Improve Expedited Removal Process

Country of citizenship Number Percent

Brazil 389 13

Dominican Republic 286 9

Jamaica 257 8

Ecuador 157 5

China 121 4

Pakistan 113 4

Sri Lanka 102 3

Peru 92 3

Israel 82 3

Ghana 81 3

Source: GAO analysis of INS data.

Country of citizenship Number Percent

Haiti 706 26

Colombia 354 13

China 200 7

Brazil 160 6

Dominican Republic 117 4

Jamaica 115 4

Peru 97 4

Sri Lanka 91 3

Ecuador 88 3

Venezuela 77 3

Source: GAO analysis of INS data.

Country of citizenship Number Percent

China 642 29

Mexico 522 23

Sri Lanka 150 7

Philippines 86 4

Peru 84 4

Pakistan 49 2

Guatemala 45 2

El Salvador 43 2

South Korea 37 2

Australia 31 1

Source: GAO analysis of INS data.

Table I.2: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at John F. Kennedy

Airport

Table I.3: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Miami

International Airport

Table I.4: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Los Angeles

International Airport
Appendix I

Additional Information on Aliens Subject to Expedited Removal

Page 83 GAO/GGD-00-176 Improve Expedited Removal Process

Country of citizenship NumberaPercent

Mexico 751 39

El Salvador 245 13

Ecuador 194 10

Guatemala 184 9

Honduras 117 6

Colombia 112 6

Peru 70 4

Costa Rica 69 4

Belize 35 2

Nicaragua 34 2

a

Data for February 1999 missing for Houston airport.

Source: GAO analysis of INS data.

Country of citizenship Number Percent

Brazil 219 14

Ecuador 112 7

Mexico 105 7

Colombia 97 6

Peru 70 5

Jamaica 69 4

Costa Rica 60 4

Czech Republic 49 3

Dominican Republic 48 3

Sri Lanka 45 3

Source: GAO analysis of INS data.

Country of citizenship Number Percent

Mexico 645 41

China 278 18

Sri Lanka 136 9

Poland 106 7

Albania 38 2

India 36 2

Czech Republic 24 2

Pakistan 24 2

Canada 20 1

Jamaica 18 1

Source: GAO analysis of INS data.

Table I.5: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Houston

International Airport

Table I.6: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Newark

International Airport

Table I.7: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Chicago

International Airport
Appendix I

Additional Information on Aliens Subject to Expedited Removal

Page 84 GAO/GGD-00-176 Improve Expedited Removal Process

Country of citizenship Number Percent

Mexico 489 47

Peru 69 7

El Salvador 57 6

Guatemala 49 5

Brazil 38 4

Czech Republic 32 3

Jamaica 22 2

Costa Rica 21 2

Nigeria 18 2

Panama 18 2

Source: GAO analysis of INS data.

Country of citizenship Number Percent

Mexico 255 33

China 126 16

Philippines 68 9

Indonesia 50 6

Taiwan 28 4

India 26 3

Sri Lanka 24 3

Thailand 16 2

Peru 14 2

South Korea 14 2

Source: GAO analysis of INS data.

Country of citizenship Number Percent

Mexico 513 68

Peru 33 4

El Salvador 32 4

Costa Rica 24 3

Guatemala 23 3

Venezuela 16 2

Brazil 15 2

Colombia 12 2

South Korea 12 2

Honduras 9 1

Source: GAO analysis of INS data.

Table I.8: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Atlanta

International Airport

Table I.9: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at San Francisco

International Airport

Table I.10: Top 10 Countries of

Citizenship for Aliens Subject to

Expedited Removal at Dallas

International Airport
Appendix I

Additional Information on Aliens Subject to Expedited Removal

Page 85 GAO/GGD-00-176 Improve Expedited Removal Process

Ordered removed Allowed to withdraw Referred for credible fear interview

Gender Number Percent Number Percent Number Percent

Male 24,362 89 2,853 10 182 1

Female 19,378 86 2,994 13 107 0

Age

18-19 4,591 88 644 12 13 0

20-29 25,061 89 2,918 10 138 0

30-39 9,612 88 1,219 11 99 1

40-49 3,135 87 447 12 31 1

50 and older 1,342 68 619 31 8 0

Country of

citizenship

Mexico 43,364 88 5,768 12 31 0

Guatemala 96 74 9 7 25 19

Ukraine 23 36 22 34 19 30

El Salvador 39 63 5 8 18 29

Honduras 38 63 1 2 21 35

Cuba 3 8 3 8 33 85

Russia 5 17 5 17 20 67

Bulgaria 1 5 3 14 18 82

China 5 29 0 0 12 71

Dominican Republic 16 94 1 6 0 0

All others 151 55 30 11 92 34

Source: GAO analysis of INS data.

Table I.11: Dispositions of Aliens Subject to Expedited Removal Provision Between October 1, 1998, and September 30, 1999, at

San Ysidro, CA Port-of-Entry
Appendix II

Description of the Violations That Subject

Aliens to Expedited Removal

Page 86 GAO/GGD-00-176 Improve Expedited Removal Process

The violations under the Immigration and Nationality Act (INA) that would

subject aliens to an expedited removal order are the following: (1)

obtained a visa, other documentation, or admission into the United States

or any benefit under the INA through fraud or misrepresentation (INA

§212(a)(6)(C)(i)); (2) obtained a benefit under federal or state law by

falsely claiming to be a U.S. citizen (INA §212(a)(6)(C)(ii)); or (3) were not

in possession of valid entry documents (INA §212(a)(7) subparagraphs

(A)(i)(I), (A)(i)(II), (B)(i)(I), or (B)(i)(II)).

According to INS training material, in order for an alien to be found

inadmissible under the first section of the INA, the misrepresentation must

be willful (i.e., the alien had knowledge that the information was false and

he or she deliberately used the false information to gain a visa, entry, or

other benefit). In addition, the misrepresentation must be material (i.e., the

alien is inadmissible on the true facts, or the misrepresentation tends to

shut off a relevant line of inquiry that might have resulted in a

determination of inadmissibility). Further, the misrepresentation must

have been made to a government official and the purpose of the

misrepresentation was to gain a benefit under the INA for the alien (such

as admittance to the United States). In general, the inspector is not to

apply this section when the alien makes a timely retraction of the

misrepresentation, in most cases at the first opportunity.

The second section of the INA relates to false claims of U.S. citizenship. To

be charged with this violation, the alien must have claimed to be a U.S.

citizen to obtain a benefit under federal or state law.

The third section of the INA relates to specific sections of the law. These

sections of the law state that aliens are inadmissible if their situation is any

of the following at the time they apply for admittance:

• Any immigrant who is not in possession of a valid, unexpired visa; reentry

permit; border crossing identification card; or other valid entry document

and a valid unexpired passport, other suitable travel document, or

document of identity and nationality if required. Two examples provided in

the Immigration and Naturalization Service training materials of situations

that would fall under this basis of inadmissibility are that an immigrant in

possession of an immigrant visa bearing an immigrant classification for

which the alien is not eligible (hence, the alien has improper documents)

and an immigrant in possession of an expired immigrant visa.

Under the INA, all aliens requesting entry are considered to be immigrants

unless they are able to establish that they are entitled to a nonimmigrant
Appendix II

Description of the Violations That Subject Aliens to Expedited Removal

Page 87 GAO/GGD-00-176 Improve Expedited Removal Process

status. If an alien applies for entry as a nonimmigrant, the alien has the

burden of establishing that he or she is entitled to the nonimmigrant status.

If the alien fails to establish that he or she is entitled to the nonimmigrant

status, the inspector may refuse to allow entry because the alien does not

have a valid entry document.

• Any immigrant whose visa had been issued without compliance with

provisions of the INA. This provision applies when the alien has an

immigrant visa bearing an immigrant classification symbol, however the

alien is not entitled to that immigrant classification and the alien is not

entitled to a preference class.

• Any nonimmigrant not in possession of a valid passport or a valid

nonimmigrant visa or border crossing identification card. An alien who

requests entry and has a valid nonimmigrant visa may be ordered removed

if the inspector finds that the visa is an improper visa (e.g., the alien has a

valid tourist visa but is intending to become a student).
Appendix III

Scope, Methodology, and Additional Results

of Analysis

Page 88 GAO/GGD-00-176 Improve Expedited Removal Process

This appendix contains additional information regarding

• supporting documentation and additional information regarding our

multivariate analysis of Immigration and Naturalization Service (INS)

asylum data on the outcomes for aliens in the credible fear process,

including aliens who recanted their claim of a fear of persecution or

torture;

• analysis of data from removal hearings for aliens found to have a credible

fear of persecution or torture;

• methodology for our reviews of case files at ports of entry and asylum

offices, and associated sampling and nonsampling errors; and

• nonsampling errors affecting observational data collected during our site

visits.

The Asylum Pre-Screening System (APSS) is a mainframe INS database

that the Asylum Office created to track data on aliens subject to expedited

removal who were referred to an asylum officer for a credible fear

interview. Data for each case are to be keyed in at the individual asylum

offices. Data are to be reviewed for accuracy monthly by INS headquarters

officials.

Asylum Office officials provided us with a copy of this database, which

was current as of November 20, 1999. We spoke to INS Asylum Office staff

about the data-entry processes used at the field level and the edit checks

incorporated into the system to reduce data entry error. We also spoke to

staff in the INS Statistics Office about analyses they had conducted to

examine the reliability of the data. We conducted various logic checks of

our own. We also used the database for our file review of the credible fear

determination process at the three locations.

In an effort to assess the reliability of the variables included in our

multivariate model, we compared data from our review of files in the Los

Angeles, Miami, and New York Asylum Offices to data recorded in the

APSS system. We found that the information recorded during our file

reviews and the APSS data were generally consistent.

Under INS policy, unaccompanied minors generally are not subject to

expedited removal. Therefore, we did not include them in our analyses.

However, as part of our assessment of the reliability of the APSS data, we

identified 339 minors who were listed as the sole or lead applicant on their

credible fear interviews and were thus subject to expedited removal. As a

result, we discussed this issue with an INS official to determine why these

minors were included in the database. The official identified some reasons

Multivariate Analysis

of INS Asylum Data
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 89 GAO/GGD-00-176 Improve Expedited Removal Process

for the inclusion of these minors. For example, some aliens had an

incorrect entry for their date of birth and were recorded as minors even

though they were not minors. Other aliens were recorded as minors, but

for example, dental forensics later determined that they were 18 years of

age or older. We conducted a sensitivity analysis to assess the effects of

excluding minors who were listed as the sole or lead applicant from our

multivariate analysis. Our analysis showed that excluding this group did

not have a significant impact on our findings and therefore, we excluded

them from the multivariate analysis.

On the basis of our review, sensitivity analysis, and discussions with INS

officials, we believe the data in the fields we used are sufficiently reliable

to support our conclusions.

We analyzed data on credible fear cases for aliens who were 18 years or

older and who attempted to enter the United States as the sole or lead

applicant between April 1, 1997, and September 30, 1999, in two steps.

First, we investigated which characteristics affected the likelihood that

aliens recanted their claims of fear of persecution or torture. Then we

investigated, for cases where aliens did not recant, which characteristics

affected the likelihood that the asylum officer’s finding in the case was

negative. The characteristics were the fiscal year in which the alien

attempted to enter the country (1997,1 1998, 1999), the gender and age (18

to 19, 20 to 29, 30 to 39, 40 to 49, 50 and older) of the alien, whether the

alien attempted to enter the United States alone or with dependents, the

region (Asia, Africa, the Caribbean, Central America, Mexico, the Middle

East, South America, and the former Soviet Bloc) of the alien’s country of

citizenship, and the asylum office at which the case was processed (Miami,

Arlington, Chicago, Houston, Los Angeles, Newark, New York, and San

Francisco).2

Because of the large number of countries of citizenship and

the small number of cases in many of them, we grouped countries by

regions of the world. The regions were: Asia (in which China, Sri Lanka,

Pakistan and India each had over 100 cases), Africa (in which Somalia,

Nigeria, Niger and Ghana each had over 100 cases), the Caribbean (in

which Haiti and Cuba each had over 100 cases), Central America (in which

1

Data for fiscal year 1997 represent the period from April 1, 1997 to Sept. 30, 1997.

2

We undertook additional analyses in which we restricted our attention to the 16 countries that

contributed more than 100 cases and which jointly accounted for nearly 80 percent of all cases in the 3

years for which we had data. These analyses showed considerable variability in the likelihood of aliens

recanting and in negative credible fear determinations across countries within the various regions, but

our estimates of the effects of the asylum office and year in which the cases were heard remained

essentially the same.
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 90 GAO/GGD-00-176 Improve Expedited Removal Process

El Salvador and Guatemala each had over 100 cases), the Middle East (in

which Iran, Lebanon, Algeria, and Iraq were the countries with the largest

number of cases, with 93, 79, 74, and 62 cases, respectively); South

America (in which Colombia had over 100 cases); and the former Soviet

Bloc (in which Albania and Yugoslavia each had over 100 cases). However,

we included Mexico separately because it was the only North American

country included in the analysis and traditionally has been responsible for

the largest group of illegal aliens in the United States.

In our analyses we estimated the size and statistical significance of the

effect that each of these characteristics had on the likelihood that aliens

recanted, and for those cases where aliens did not recant, on the likelihood

that the credible fear finding was negative. We first used bivariate methods

to determine the effect of each characteristic ignoring every other. We

then used multivariate techniques (logistic regression models) to estimate

the net effect of each of these six characteristics or the effects they had on

these two outcomes (i.e., likelihood of aliens’ deciding to recant or not

their claim of a fear of persecution or torture and likelihood of receiving a

negative or positive credible fear determination) when the associations

between characteristics were controlled and their effects were estimated

simultaneously. Odds and odds ratios were used to estimate the size of the

effects of the different characteristics, and chi-square statistics and Wald

statistics were used to determine whether they were statistically

significant (i.e., large enough that it is very unlikely that they occurred due

to random fluctuations or chance).
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 91 GAO/GGD-00-176 Improve Expedited Removal Process

Table III.1 shows the effects of the various characteristics on the

likelihood that aliens recanted their claims.

Fiscal year Did not recant Recanted Total

Odds on

recanting Bivariate ratios

Multivariate

ratios

1997 927 103 1,030 0.111

1998 2,690 334 3,024 0.124 1.12a1.21

1999 5,232 388 5,620 0.074 0.67a0.95

Gender

Male 5,959 678 6,637 0.114

Female 2,890 147 3,037 0.051 0.45a0.45a

Age

18-19 648 36 684 0.056

20-29 4,709 363 5,072 0.077 1.39 1.14

30-39 2,614 297 2,911 0.114 2.04a 1.58a

40-49 703 92 795 0.131 2.36a1.75a

50 and older 175 37 212 0.211 3.81a2.67a

Alone or with dependents

Alone 8,752 819 9,571 0.094

With dependents 97 6 103 0.062 0.66 0.57

Region of citizenship

Asia 4,134 215 4,349 0.052

Africa 1,225 164 1,389 0.134 2.57a1.48a

Caribbean 1,579 76 1,655 0.048 0.93 1.42a

Central America 443 87 530 0.196 3.78a 6.41a

Mexico 128 88 216 0.688 13.22a24.37a

Middle East 357 31 388 0.087 1.67a1.31

South America 283 119 402 0.420 8.08a 11.79a

Former Soviet Bloc Nations 700 45 745 0.064 1.24 0.83

Asylum Office

Miami 2,313 136 2,449 0.059

Arlington 140 18 158 0.129 2.19a2.83a

Chicago 788 22 810 0.028 0.48a 1.01

Houston 474 48 522 0.101 1.72a0.60a

Los Angeles 2,332 179 2,511 0.077 1.30a1.13

Newark 1,029 162 1,191 0.157 2.68a3.85a

New York 1,228 236 1,464 0.192 3.27a4.85a

San Francisco 545 24 569 0.044 0.75 1.22

a

These ratios are statistically significant at the 95 percent confidence interval.

Source: GAO analysis of INS data.

Factors Associated With

Aliens’ Recanting Claims of

Fear of Persecution or

Torture

Table III.1: Number of Aliens Who Did or Did Not Recant Their Claims of Fear of Persecution or Torture, by Selected

Characteristics, and Odds and Odds Ratios Derived From Them
Appendix III

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The odds on recanted claims, which are displayed in the fourth column of

numbers in table III.1, show how many cases were recanted for every case

that was not recanted, within each of the six categories. In 1997, for

example, 103 cases were recanted while 927 cases were not recanted, and

the odds on cases being recanted were 0.111 (103/927). This implies that

0.111 cases were recanted for every one that was not recanted or,

multiplying by 100, that about 11 cases were recanted for every 100 that

were not recanted. In 1998 the odds on cases being recanted were slightly

higher, and equal to 0.124 (about 12 were recanted for every 100 that were

not recanted), while in 1999 they were lower, and equal to 0.074 (less than

8 cases were recanted for every 100 that were not recanted). The odds

ratios at the top of the next to last column of the table (which are

0.124/0.111 = 1.12 and 0.074/0.111 = 0.67) provide estimates of the change

in the odds on cases being recanted over the 3 years; they were higher in

1998 than in 1997 by a factor of 1.12, but lower in 1999 than in 1997, by a

factor of 0.67. These odds ratios and the others in the same column

indicate the effects of this factor and the other factors when each factor is

assessed separately. Regarding the other factors, we found the following:

• Women were half as likely (i.e., 45 percent as likely) as men to recant their

fear of persecution or torture.

• Older aliens were more likely than younger ones to recant their fear of

persecution or torture (i.e., aliens 30 to 39 and 40 to 49 were slightly more

than twice as likely to recant as aliens under 20, and aliens 50 and over

were nearly 4 times as likely to recant as aliens under 20).

• Aliens with dependents were only two-thirds as likely as aliens without

dependents to recant (or, alternatively, aliens without dependents were

1/0.66 = 1.5 times as likely as those with dependents to recant).

• Aliens who came from Asia, the Caribbean, the Middle East, and former

Soviet Bloc countries were the least likely to recant. Relative to aliens

from Asia, aliens from Africa and Central America were roughly 3 or 4

times as likely to recant, while aliens from South America and Mexico

were about 8 and 13 times as likely to recant as aliens from Asia,

respectively.

• Finally, it appeared that there was considerable variability in the likelihood

of aliens recanting across the various asylum offices. Cases in Chicago had

lower odds on recanting than cases in Miami, and cases in Arlington,

Houston, Newark and New York had higher odds than cases in Miami of

recanting, by factors ranging from roughly 2 to roughly 3.

These odds ratios, as noted above, are estimates of the effects of each

factor when all other factors are ignored. However, some of these factors

are associated with one another and, as a result, our estimates of some of
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 93 GAO/GGD-00-176 Improve Expedited Removal Process

these effects are quite different when we control for, or take account of,

those associations. The odds ratios in the final column of the table are

derived from statistical models which estimate the effects of each factor

net of every other, using logistic regression techniques. While the effects of

gender, age, and dependency status are quite similar when they are

estimated simultaneously, the effects of region of citizenship and asylum

office and the change over time are somewhat different. In particular:

• The odds on aliens recanting in 1999 were not lower than in 1997, when

characteristics of the aliens involved in the cases, including their

citizenship, were controlled. Supplemental analyses (not shown) of these

data reveal that the lower overall odds on aliens recanting in the most

recent year for which we had data, before these characteristics were

controlled, is partly a function of more of the cases in 1999 than in prior

years coming from regions that had lower recanting rates.

• Aliens with citizenship from Caribbean countries had higher odds on

recanting than aliens from Asian countries, when differences between

those groups on other characteristics are controlled or accounted for.

Aliens from Mexico and Central and South America persisted in having the

highest odds on recanting their fear of persecution or torture. Citizens

from the Middle East and the former Soviet Bloc were not significantly

different from those from Asian countries.

• Differences in the likelihood of aliens recanting across the asylum offices

at which the cases were processed change somewhat when we take

account of differences in the characteristics of cases coming into different

offices, in particular the region from which they came. After these

differences in characteristics are accounted for in our multivariate model,

aliens processed in Chicago do not have significantly lower odds of

recanting than cases processed in Miami, though aliens processed in

Houston do. That is, once we take account of the fact that many of the

aliens whose cases were processed in Houston came from regions (i.e.,

Mexico and Central and South America) in which the odds on recanting

were quite high, the likelihood of aliens recanting in Houston was 60

percent as high as in Miami.

Table III.2 shows the effects of these same characteristics on the

likelihood aliens who did not recant their claims received a negative

credible fear finding from an asylum officer. Negative findings were

significantly less likely for women than men after other characteristics

were controlled. Also, before other factors were controlled, it appeared

that older aliens were significantly more likely to receive negative findings

than younger aliens. For example, aliens age 50 and over were roughly

between two and three times as likely to receive negative findings as aliens

under age 20. After we controlled for the association of age with these

Factors Associated With

Negative Credible Fear

Determinations by Asylum

Officers
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 94 GAO/GGD-00-176 Improve Expedited Removal Process

other factors and the effects of these other factors on the credible fear

outcome, however, there were no significant differences across age

categories.

Fiscal year

Positive

determination

Negative

determination Total

Odds on

negative

determination

Bivariate

ratios

Multivariate

ratios

1997 744 183 927 0.246

1998 2,574 116 2,690 0.045 0.18a0.13a

1999 5,126 106 5,232 0.021 0.08a0.08a

Gender

Male 5,673 286 5,959 0.050

Female 2,771 119 2,890 0.043 0.85 0.75a

Age

18-19 621 27 648 0.043

20-29 4,515 194 4,709 0.043 0.99 0.73

30-39 2,495 119 2,614 0.048 1.10 0.72

40-49 656 47 703 0.072 1.65a0.88

50 and older 157 18 175 0.115 2.64a1.25

Alone or with dependents

Alone 8,349 403 8,752 0.048

With dependents 95 2 97 0.021 0.44 0.47

Region of citizenship

Asia 4,081 53 4,134 0.013

Africa 1,187 38 1,225 0.032 2.47a1.55

Caribbean 1,510 69 1,579 0.046 3.52a 4.31a

Central America 328 115 443 0.351 27.00a25.25a

Mexico 77 51 128 0.662 51.00a32.46a

Middle East 343 14 357 0.041 3.14a2.14a

South America 253 30 283 0.119 9.13a 9.76a

Former Soviet Bloc Nations 665 35 700 0.053 4.05a2.69a

Asylum Office

Miami 2,233 80 2,313 0.036

Arlington 129 11 140 0.085 2.38a2.48a

Chicago 777 11 788 0.014 0.40a0.96

Houston 371 103 474 0.278 7.75a2.70a

Los Angeles 2,227 105 2,332 0.047 1.32 1.13

Newark 984 45 1,029 0.046 1.28 1.60a

New York 1,191 37 1,228 0.031 0.87 1.12

San Francisco 532 13 545 0.024 0.68 1.03

a

These ratios are statistically significant at the 95 percent confidence level.

Source: GAO analysis of INS data.

Table III.2: Number of Aliens Who Received Positive and Negative Credible Fear Determinations From Asylum Officers, by

Selected Characteristics, and Odds and Odds Ratios Derived From Them
Appendix III

Scope, Methodology, and Additional Results of Analysis

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Regarding other characteristics and focusing on our estimates of the

effects of each characteristic net of every other (as shown in the last

column of table III.2) our results were as follows:

• In 1998 and 1999 the odds on a negative credible fear finding were much

lower than in 1997. Considering differences in the characteristics of the

cases heard in each year, we find that the odds on negative findings were

only 13 percent and 8 percent as high in 1998 and 1999, respectively, as in

1997.

• Females were about 75 percent as likely as males to receive negative

credible fear findings.

• Older aliens were not significantly different from younger ones, and aliens

with dependents were not significantly different from aliens without

dependents in terms of their likelihood of receiving negative credible fear

findings, after other factors were controlled.

• Net of other characteristics, region had a very pronounced effect on

negative findings among the cases that were not recanted. Aliens from the

Middle East and the former Soviet Bloc were somewhat more likely than

aliens from Asia to receive negative findings, aliens from Caribbean or

South American countries were about 4 and 10 times as likely,

respectively, and aliens from Central American countries and Mexico were

over 25 times as likely as Asians to receive negative findings. Aliens from

Africa were not significantly different than those from Asia.

• Once characteristics of cases were controlled, cases processed in Miami,

Chicago, Los Angeles, New York, and San Francisco were quite similar in

terms of their likelihood of producing negative findings. Cases that were

not recanted and were processed in Arlington and Newark were about

twice as likely to produce negative findings as those processed in Miami,

and cases in Houston were about three times as likely.

As previously discussed, our grouping of countries into regions to simplify

our presentation of results does not alter very substantially our estimates

of the effects of asylum office nor of the change over time on whether

aliens recanted or whether aliens received negative credible fear

determinations, though it does mask significant variability in those

outcomes across different countries within the various regions. For that

reason, we show in table III.3 the breakdown of cases where aliens did or

did not recant and that produced negative or positive findings of a credible

fear of persecution or torture, by the countries with the larger number of

credible fear cases within each region.

Additional Analyses of

Specific Countries of

Citizenship
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 96 GAO/GGD-00-176 Improve Expedited Removal Process

Region/Country Not recanted Recanted Total

Odds on

recanting

Positive

determination

Negative

determination Total

Odds on

negative

determination

Asia

China 2,422 53 2,475 0.022 2391 31 2,422 0.013

Sri Lanka 1,346 6 1,352 0.004 1344 2 1,346 0.001

Pakistan 120 74 194 0.617 111 9 120 0.081

India 83 20 103 0.241 77 6 83 0.078

Other 163 62 225 0.380 158 5 163 0.032

Africa

Somalia 338 4 342 0.012 336 2 338 0.006

Nigeria 130 27 157 0.208 123 7 130 0.057

Niger 132 15 147 0.114 129 3 132 0.023

Ghana 90 53 143 0.589 78 12 90 0.154

Sierra Leone 86 13 99 0.151 85 1 86 0.012

Other 449 52 501 0.116 436 13 449 0.030

Caribbean

Haiti 1,359 28 1,387 0.021 1302 57 1,359 0.044

Cuba 179 1 180 0.006 177 2 179 0.011

Other 41 47 88 1.146 31 10 41 0.323

Central America

El Salvador 159 36 195 0.226 118 41 159 0.347

Guatemala 163 29 192 0.178 118 45 163 0.381

Other 121 22 143 0.182 92 29 121 0.315

Middle East

Iran 87 6 93 0.069 85 2 87 0.024

Lebanon 74 5 79 0.068 74 0 74 0.000

Algeria 71 3 74 0.042 70 1 71 0.014

Iraq 61 1 62 0.016 61 0 61 0.000

Other 64 16 80 0.250 53 11 64 0.208

South America

Colombia 101 37 138 0.366 94 7 101 0.074

Peru 53 21 74 0.396 48 5 53 0.104

Ecuador 35 25 60 0.714 28 7 35 0.250

Guyana 50 8 58 0.160 48 2 50 0.042

Other 44 28 72 0.636 35 9 44 0.257

Table III.3: Numbers of Cases Recanted and Not Recanted Resulting in Positive and Negative Credible Fear Determinations and

Odds Derived From Them for Countries With the Larger Number of Credible Fear Cases Within Regions
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 97 GAO/GGD-00-176 Improve Expedited Removal Process

Region/Country Not recanted Recanted Total

Odds on

recanting

Positive

determination

Negative

determination Total

Odds on

negative

determination

Former Soviet

Bloc Nations

Albania 298 10 308 0.034 280 18 298 0.064

Yugoslavia 199 2 201 0.010 198 1 199 0.005

Other 203 33 236 0.163 187 16 203 0.086

Source: GAO analysis of INS data.

We analyzed a database (which we shall refer to as the removal database)

that contained information on the results of removal hearings for aliens

who were found by an asylum officer to have a credible fear of persecution

or torture between April 1, 1997, and September 30, 1999.

INS and Executive Office for Immigration Review (EOIR) staff created the

removal database by merging selected data fields from INS’ APSS with

data from the EOIR Automated Nationwide System for Immigration

Review (ANSIR), using the applicant’s INS-assigned number (A-number).

The APSS database contains information on all cases referred to asylum

officers for credible fear interviews. The ANSIR database tracks cases

handled by immigration judges and appeals handled by the Board of

Immigration Appeals, which is a unit in EOIR. Each EOIR field location is

to enter and validate case data in its local database daily. The nationwide

database also is updated with these data daily. The ANSIR system includes

several built-in data edit checks to prevent the entry of inappropriate or

missing values.

The removal database contained selected fields from the APSS database

for all aliens for whom asylum officers had made a credible fear decision

(either positive or negative), and for all aliens whose cases were still

pending, as of October 20, 1999. The APSS fields included (1) A-number,

(2) alien’s last name, first name and middle name, and (3) the date of the

asylum officer’s credible fear decision. The removal database contained

several data fields from the ANSIR database, which was current as of

February 22, 2000. The ANSIR fields included A-number; alien’s nationality;

whether the alien filed an application for asylum; dates and locations of

any hearings before an immigration judge; whether the alien requested a

change of location for such hearings; whether the alien was detained or

released as of the alien’s specific hearing date; and the results of the

hearings, including whether the alien was present for the hearings, and

Analysis of Data From

Removal Hearings for

Aliens Found to Have a

Credible Fear of

Persecution or Torture

Characteristics of the

Removal Database
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 98 GAO/GGD-00-176 Improve Expedited Removal Process

whether the immigration judge granted asylum or other relief from

removal or issued a formal removal order.

The removal database contained data on 10,253 separate A-numbers.

Because the ANSIR system tracks the results of proceedings, or hearings,

before immigration judges, some individual A-numbers had information

from multiple hearings. Therefore, there were 17,256 separate records in

the removal database, each containing information on the results of a

single hearing that ended in what EOIR calls a “completion.”3

For example,

one alien may have requested and received a change of location on the first

hearing and received a removal order from the immigration judge on the

next hearing. This alien would then have two records in the ANSIR system

(and in the removal database), each containing identifying information on

the alien and information pertaining to each separate hearing. In another

example, an alien may have received a removal order on the first hearing

and might have left the country without appealing the decision. There

would be only one record in the removal database for this individual. Thus

there were more records in the removal database than the number of Anumbers in the APSS database.

After aggregating the removal database by A-number, there were 10,253

unique A-numbers in the removal database that had at least some

identifying information from the APSS database, such as the A-number,

name, and (in most cases) the date of the asylum officer’s credible fear

determination. However, for 1,000 cases there was no matched

information from the EOIR ANSIR system. Therefore, these cases from

INS could not be matched with the EOIR data. As a result, we omitted

them from our analyses.

Of the 9,253 cases remaining in the removal database for which there was

information from both APSS and ANSIR, we excluded some A-numbers

(individual cases) and some hearings (individual records), which were not

relevant to our analysis. These cases included the following:

• Records of hearings that predated the expedited removal process. Though

all aliens in the APSS database had been referred to an asylum officer

3

Completions include (1) decisions by an immigration judge to grant relief from removal (including

grants of asylum), issue a removal order, issue a voluntary departure order, or terminate the case, with

the option that INS can reopen the removal process by filing other charges against the alien and (2)

cases that are administratively closed (when an alien fails to appear for the hearing, but the judge

believes that the alien was not properly informed of the date and place of the hearing and does not

want to issue a removal order or other formal decision), cases that are transferred from one hearing

location to another, and cases where the alien requests a change of location from one location to

another.

Sample selection

procedures
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 99 GAO/GGD-00-176 Improve Expedited Removal Process

during the period in which expedited removal had been in effect

(beginning April 1, 1997), during the process of merging the databases all

information in ANSIR on a specific A-number would have been captured in

the removal database. In some cases, hearings before an immigration judge

that predated expedited removal would have been captured.

• Records of hearings that were not removal hearings for aliens who were

subject to expedited removal and had received positive credible fear

determinations by an asylum officer. The ANSIR database contained some

records of claimed status reviews,4

asylum-only hearings,5and judges’

reviews of negative credible fear determinations by asylum officers. In

addition, the ANSIR database contained fields that record the charges that

INS had filed against the alien. All individuals who receive a positive

credible fear determination and are referred to removal hearings before an

immigration judge should have been charged with one of the following

charges under the INA that subject them to expedited removal:

212(a)(6)(C)(i), 212(a)(6)(C)(ii), 212(a)(7)(A)(i)(I), 212(a)(7)(A)(i)(II),

212(a)(7)(B)(i)(I), and 212(a)(7)(B)(i)(II). We excluded individual cases

that did not have the appropriate charge in any of the six fields on any of

their data records.

• We included only those cases where the asylum officer decision occurred

between April 1, 1997, and September 30, 1999. If an asylum officer

decision date was missing, we included an individual if the date of the

Notice to Appear (recorded by immigration court personnel in the ANSIR

database) occurred during this time period.

The resulting database contained data on 7,947 individual A-numbers.

Some of these aliens had multiple records of hearings while other aliens

had only a single record.

For our analyses of the appearance rate of aliens who were released from

custody, we examined only those aliens who were never detained by INS

after the asylum officer’s credible fear decision or those who were

released at some point during the hearing process before an immigration

judge made a final decision. Of the 7,947 cases in the removal database,

5,320 (or 67 percent) were never detained or had been released at some

point. The remainder (2,627) was detained throughout the removal hearing

process.

4

These are hearings in which an arriving alien claims that he or she is a United States citizen, refugee,

asylee, or permanent resident and is referred to an immigration judge for verification of identity.

5

These are asylum hearings for alien crewmen and stowaways, who are not eligible for removal

hearings under the expedited removal process.

Appearance Rates for

Aliens Released From

Custody
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 100 GAO/GGD-00-176 Improve Expedited Removal Process

To determine how many of the released aliens appeared for the removal

hearing, we examined only those cases where an immigration judge had

reached a decision on the alien’s case. These were cases where the judge

had decided the alien was entitled to asylum or some other form of relief

and could remain in the country or were to be removed from the country

with a removal order or a voluntary departure order. Of the 5,320 released

aliens, immigration judges had reached decisions in 2,354 (or 44 percent)

of the cases. Immigration judges made in absentia rulings in 1,003 of the

2,354 decisions. In 3 of the 1,003 in absentia rulings, the alien was granted

some form of relief from removal. These 3 rulings have been eliminated

from the 2,354 cases, since we do not know the basis for the immigration

judges’ granting relief in absentia.

Of the 2,351 decisions on released aliens’ cases, 1,000 aliens (or 42

percent) were ordered removed in absentia (i.e., the judge believed that

there was sufficient evidence to determine that the alien was at fault for

not appearing for the hearing and ordered the alien removed from the

country).6

In commenting on a draft of the report, EOIR officials confirmed that they

essentially agreed with our analysis and methodology which revealed that,

as of February 22, 2000, 42 percent of the aliens who had been released

and had a final decision by the court had not appeared for their removal

hearing before an immigration judge and had received a ruling in absentia.

However, the officials explained that the majority of the in absentia orders

were entered at the master calendar hearing stage, where the alien fails to

appear for his or her hearing. In addition, EOIR officials noted that cases

that are set for a merits hearing (i.e., for aliens who appear and wish to

pursue their claim) tend to be scheduled on average of 1 year from the

initial master calendar hearing date. Consequently, as more of the 5,320

cases are completed over time, a greater percentage of aliens will appear

for their hearing, which will result in a lower in absentia rate. Therefore,

cases closed from April 1, 1997, through fiscal year 1999 were aliens who

did not appear for their initial removal hearing and were ordered removed

from the United States at that time. Conversely, those cases that remained

open involved aliens who had appeared for their initial removal hearing

and were scheduled for subsequent merits hearings to determine if they

6

A judge could also make a decision to “terminate” a case. EOIR officials stated that in these instances,

the judge did not believe that INS’ charges against the alien could be supported. However, INS

continues to have the opportunity to bring these or other charges, against the alien. We treated this

category of cases as a pending decision, and did not include these cases in the computation of

percentages of released aliens who had received a decision from a judge. If such cases are included,

the percentage of aliens who do not appear for their hearings and are ordered removed in absentia

drops from 42 to 38 percent.
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 101 GAO/GGD-00-176 Improve Expedited Removal Process

should be granted relief from removal (e.g., granted asylum). Regarding

the case sample analyzed by us, EOIR determined that the failure to appear

rate was 34 percent, as of August 10, 2000. EOIR estimated that eventually

the failure to appear rate would be as low as 25 percent when all the cases

will be completed.

We also examined how many aliens requested a change of location for

their removal hearings. The ANSIR database recorded whether the result

of a hearing in front of an immigration judge was the granting of a change

of location to the alien. Of the 5,320 aliens who were not detained during

the hearing process or were released from INS custody at some point

during the process, 3,695 (69 percent) requested a change of location. Of

those 3,695 aliens, 1,467 aliens had a decision by an immigration judge. Of

the 1,467 aliens, 557 aliens (or 38 per cent) were ordered removed in

absentia because they failed to appear for their removal hearings.

To determine whether aliens who claimed to have a fear of persecution or

torture pursued their claim of asylum, we reviewed the rate at which

claimants filed applications for asylum. Generally, these aliens have 1 year

from their arrival to file an application showing their intent to request

asylum.

The removal database did not contain a record of the date of the alien’s

arrival in the country, so we used as a proxy the date when the Notice to

Appear in front of the immigration judge was signed by the asylum officer.

This date was recorded in the ANSIR database, and data for this field were

not missing for any of the aliens. The ANSIR database also contained a

record of the date when the alien filed the asylum application. If more than

one date was recorded, we used the earliest date. We then computed, for

each alien, the length of time between the date the Notice to Appear was

signed and the date the first asylum application was filed. We examined

how many aliens missed the 1-year filing deadline, for those cases where a

specific date of filing was recorded. For a number of aliens, however, no

date was recorded in the asylum application field. In these cases, we

computed the number of aliens who had not filed an asylum application as

of February 22, 2000 (the date for which the ANSIR database was current)

and had been in the United States for more than 1 year (as measured by

the date of the Notice to Appear). Because of our decision to use the

Notice to Appear date, the computed time period was likely an

underestimate of the actual time from entry into the country to filing of the

asylum application and thus was a conservative test of how many aliens

filed the asylum application within the 1 year deadline.

Requests for Change of

Location

Number of Aliens Who Filed

Applications for Asylum
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 102 GAO/GGD-00-176 Improve Expedited Removal Process

Since the inception of the expedited removal program on April 1, 1997,

through fiscal year 1999, of 7,947 aliens, 3,140 aliens had not filed for

asylum in cases when asylum officers had determined that the aliens had a

credible fear of persecution or torture. Of those who had not filed, 1,338

(or 42 percent) of 3,140 aliens missed the 1-year required filing deadline;

and as a result, they generally may not be able to file for asylum.7

We examined INS’ management controls over the expedited removal

process, including whether inspectors and asylum officers documented

that they asked required questions of aliens, and whether INS documented

that supervisory review had occurred. The first file review, which we

conducted at the four ports we visited, was of INS files on aliens who were

subject to the expedited removal process but were not referred for a

credible fear interview. The second file review, which was conducted at

the three asylum offices we visited, was of files on aliens who recanted

their claims of fear of persecution or torture or those who were

determined not to have a credible fear of persecution or torture.

We developed a data collection instrument for use in extracting

information from the files. All the information was obtained from working

case files on aliens provided to us at the ports of entry or the asylum

offices. We relied exclusively on the information in the files, and we were

unable to determine the accuracy of the information in the files. Therefore,

our results cannot distinguish between a failure to ask a question in an

interview and a failure to document that a question was asked.

We reviewed only those files that were for aliens who attempted to enter

the United States in fiscal year 1999. For the file review of aliens who were

subject to expedited removal, we randomly selected case files (probability

samples) at each of the four locations we visited from INS databases

covering aliens found inadmissible at the ports of entry. At each location,

we randomly selected case files from two populations of aliens subject to

expedited removal:

• aliens who were ordered removed from the country and

• aliens who were allowed to withdraw their applications for admission.

At Los Angeles International Airport, we used a port-specific database to

select our cases, because at the time of our selection, INS’ national

database was missing several months of data and had not yet been

updated. At Miami International Airport and New York’s John F. Kennedy

7

Other forms of relief from removal from the United States may be available, including asylum as a

result of provisions other than those provided for by expedited removal.

File Review

Methodology and

Sampling Errors
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 103 GAO/GGD-00-176 Improve Expedited Removal Process

Airports (JFK) we used INS’ national database on aliens found

inadmissible at the country’s airports. At the San Ysidro, CA port we used a

port-specific database on aliens found inadmissible at the port. At San

Ysidro, we did not review files of aliens who were allowed to withdraw

their applications for admissions, because the port did not create files for,

and assign A-numbers to, the vast majority of these aliens. The samples

selected at these locations were large enough to allow us to make

estimates with a reasonable degree of accuracy to all individuals entering

each location during the 1999 fiscal year who were subject to expedited

removal and were not referred for a credible fear interview.

Tables III.4 and III.5, respectively, provide a description of the populations

and sampling frames for the file reviews of (1) 365 randomly selected case

files for aliens who were subject to expedited removal and were ordered

removed and (2) 220 randomly selected case files for aliens who were

subject to expedited removal and were allowed to withdraw their

applications for admission, at each of the locations we visited where case

files were kept.

JFK Los Angeles Miami San Ysidro Total

Population 2,248 1,256 796 43,491 47,791

Sample 94 90 85 96 365

Source: INS data and GAO sample.

JFK Los Angeles Miami Total

Population 380 724 507 1,611

Sample 78 81 61 220

Note: We did not examine withdrawals at San Ysidro because the port did not create and retain case

files in the vast majority of instances where withdrawals were allowed. The port only creates these

files and issues A-numbers to the aliens subject to expedited removal who withdraw when, for

example, the alien is charged with being involved in criminal activities or claims eligibility for a specific

immigration benefit, such as marriage to a U.S. citizen. According to data from the San Ysidro port of

entry, 11,782 withdrawals were issued in fiscal year 1999, but alien numbers were issued in only 237

of these cases.

Source: INS data and GAO sample.

For the file review of aliens who recanted their fear of persecution or

torture or whom INS found not to have a credible fear of persecution or

torture, we selected case files at the three locations we visited, using INS’

APSS database. For aliens who recanted their fear of persecution or

torture, we randomly selected case files at the three locations. Table III.6

provides a description of the populations and sampling frames for the file

Table III.4: File Review Populations and

Samples for the Four Ports of Entry of

Aliens Who Were Subject to Expedited

Removal and Were Ordered Removed

From the United States, Fiscal Year 1999

Table III.5: File Review Populations and

Samples for the Three Ports of Entry of

Aliens Who Were Subject to Expedited

Removal and Were Allowed to Withdraw

Their Applications for Entry, Fiscal Year

1999
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 104 GAO/GGD-00-176 Improve Expedited Removal Process

review of 133 randomly selected case files for aliens who recanted their

fear of persecution or torture.

Los Angeles Miami

New

York Total

Population 58 79 95 232

Sample 40 45 48 133

Source: INS data and GAO sample.

For aliens whom INS determined not to have a credible fear of persecution

or torture, we reviewed all the case files, because of the small number of

negative determinations during this period. The number of case files

reviewed was 24 in Los Angeles, 13 in Miami, and 8 in New York. Our

results cannot be projected to other locations or to other time frames.

Where we used random sampling at the four ports of entry and the three

asylum offices, the results obtained for these file reviews are subject to

some uncertainty or sampling error. The sampling error can be expressed

in terms of confidence levels and ranges. The confidence level indicates

the degree of confidence that can be placed in the estimates derived from

the sample. The range is a pair of values derived from the sample data, an

upper and lower limit, between which the actual population values might

be found. Our samples were designed so that the sampling error would not

be greater than 10 percentage points at the 95-percent confidence level.

Thus, if all cases in our population for a particular port of entry or asylum

office had been examined, the chances are 95 out of 100 that the results

obtained would be included in the range formed by adding or subtracting

10 percentage points from the sample estimates. In this report, all sampling

errors fall within this range, unless otherwise noted.

In addition to the reported sampling errors, the practical difficulties of

conducting any file review may introduce other types of errors, commonly

referred to as nonsampling errors. For example, differences in how two

reviewers interpret a question, or in the ways in which two INS inspectors

or asylum officers provided file documentation, can introduce unwanted

variability into the results. We included steps in both the data collection

and data analysis stages to minimize such nonsampling errors. We

developed and pretested our data collection instrument in consultation

with INS officials, and we conducted training with all of our staff who

would be conducting the reviews. During the review process, we reviewed

a small subset of our completed forms to ensure consistency in the way

Table III.6: File Review Populations and

Samples for the Three Asylum Offices of

Aliens Who Recanted Their Fear of

Persecution or Torture, Fiscal Year 1999
Appendix III

Scope, Methodology, and Additional Results of Analysis

Page 105 GAO/GGD-00-176 Improve Expedited Removal Process

they were being filled out. We verified all data entry of the data collection

instruments as well as all the programming used in the analyses.

In addition to the possible nonsampling errors that could affect our file

review results, our ability to generalize from our observations of the

process at the ports, asylum offices, immigration courts, and detention

facilities was limited by:

• the randomness of the time and location for the arrival of aliens who

would have been subject to the expedited removal process at secondary

inspection,

• scheduling changes, including delays and postponement of a credible fear

interview with an asylum officer and negative credible fear review before

an immigration judge, and

• the detention facilities selected for our observations and the unknown

degree to which they may or may not represent conditions at other

facilities or at these facilities at other points in time.

In addition, planning such observations had to be done in conjunction with

our field visits. Due to the limited number of interviews, credible fear

reviews, and facilities we were able to observe, our observation data are

not generalizable to all aliens subject to the expedited removal process or

to all detention facilities. Furthermore, we do not know if our presence

affected the behavior of the individuals whom we observed.

We did our review from August 1999 to July 2000 in accordance with

generally accepted government auditing standards.

Nonsampling Error

Affecting

Observational Data

Collected During Site

Visits
Appendix IV

GAO Contacts and Staff Acknowledgments

Page 106 GAO/GGD-00-176 Improve Expedited Removal Process

Richard M. Stana, (202) 512-8777

James M. Blume, (202) 512-8777

In addition to the names above, Bonnie D. Hall, Daniel R. Garcia, Tom

Jessor, Carla D. Brown, Samuel L. Hinojosa, Brian J. Lipman, Ann H.

Finley, Wendy Ahmed, Catherine M. Hurley, Michelle A. Sager. Barry J.

Seltser, Douglas M. Sloane, Michael H. Little, Lessie M. Burke, Tracy J.

Harris, Donna M. Leiss, Laura G. Shumway, and Larry D. Harrell made key

contributions to this report.

GAO Contacts

Acknowledgments
Page 107 GAO/GGD-00-176 Improve Expedited Removal Process
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