Testimony Before the Permanent

Subcommittee on Investigations,

Committee on Governmental Affairs,

U.S. Senate

United States General Accounting Office

GAO

For Release

on Delivery

Expected at 9:30 a.m., EST

Tuesday,

November 13, 2001

ILLEGAL ALIENS

INS' Processes for Denying

Aliens Entry Into the

United States

Statement of Richard M. Stana

Director, Justice Issues

GAO-02-220T
Page 1 GAO-02-220T

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss Immigration and Naturalization

Service’s (INS) processes for handling aliens who attempt to enter the

county illegally. The tragic events of September 11, 2001, under score the

importance of effectively controlling the legal and illegal entry of aliens

into the United States.

Aliens enter the United States legally or illegally. Generally, legal entry

requires aliens to first obtain visas at a U.S. consulate and appropriate

travel documents, such as passports, from their own country.1

 They then

present themselves for INS inspection at a U.S. port of entry. Aliens may

enter legally as “immigrants” or “nonimmigrants.” Immigrants enter for

purposes of becoming lawful permanent residents. In addition, refugees

and immediate relatives—spouses, parents, and children of U.S. citizens—

can also be admitted. Nonimmigrants are admitted for a specified period

of time for a specific purpose, such as tourism, business, or schooling.

Under certain conditions, nonimmigrants in the United States may apply to

INS to have their status changed to that of immigrant.

Aliens enter illegally by evading INS inspections. They might enter at a

port of entry and present fraudulent documents or cross the U.S. border

between ports of entry.

My testimony today draws on our prior reports and focuses mainly on INS’

processes for denying aliens entry at land and airports of entry, including

the expedited removal and credible fear processes.2

 1

 Citizens of some countries are part of the visa waiver program (e.g., England) and do not

have to obtain a visa.

2 Illegal Aliens: Changes in the Process of Denying Aliens Entry Into the United States

(GAO/GGD-98-81, Mar. 31, 1998) and Illegal Aliens: Opportunities Exist to Improve the

Expedited Removal Process, (GAO/GGD-00-176, Sep.1, 2000).
Page 2 GAO-02-220T

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

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

(INA),3 as amended, was enacted September 30, 1996 (P.L. 104-208).

Among other things, the 1996 Act included a new 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 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 the illegal aliens once

they 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 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 entry.4

 INS determined that it would not apply the expedited

removal process to aliens who attempted to enter the United States

between ports of entry or without inspection or parole.5

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 if

returned to their home country or country of last residence.6

 Aliens can

 3

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

4

 The 1996 Act only permits INS to issue expedited removal orders against aliens who have

been in the United States for less than 2 years.

5

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

States, for emergency reasons or when in the public interest.

6

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

country or their country of last residence.

Changes in the

Process of Denying

Aliens Entry Into the

United States
Page 3 GAO-02-220T

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.

Before the 1996 Act, aliens who wanted to be admitted to the United States

at a port of entry were required to establish admissibility to an inspector.

This requirement remains applicable under the 1996 Act. Generally, aliens

provide inspectors with documents that show they are authorized to enter

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

the aliens to enter or sends the aliens for a more detailed review of their

documents or further questioning by another INS inspector. The 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 a number of 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 even though they do not meet the requirements for entry or

(2) withdraw their applications for admission and depart.

Before the April 1, 1997, enactment of the expedited removal process, the

INA authorized the Attorney General to exclude certain aliens from

admission into the United States. Aliens whom inspectors determined to

be excludable from this country generally were allowed either to (1)

return voluntarily to the country from which they came or (2) appear for

an exclusion hearing before an immigration judge. During this hearing,

aliens who said they had a fear of persecution if they were returned to

their home country could file an application for asylum. The immigration

judges’ decisions could be appealed to EOIR’s Board of Immigration

Appeals, which is a quasijudicial body that hears appeals of INS’ and

immigration judges’ decisions. Furthermore, the alien could appeal

Board’s decision through the federal court system. The scope of the

federal court’s review was limited to whether the government followed

established procedures. Aliens who were excluded from entering the

United States under this process generally were barred from reentering

this country for 1 year.

Exclusion Process Before

Implementation of the

1996 Act
Page 4 GAO-02-220T

Under the 1996 Act, an INS inspector, instead of an immigration judge, 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.7

 Aliens who are issued an expedited

removal order generally are barred from reentering this country for 5

years.

The expedited removal provision also established a new process for aliens

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

subject to expedited removal. Inspectors are to refer such aliens to INS

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

credible fear of persecution 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.

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.8

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 release9

 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,

 7

 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.

8

 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.

9

 This is parole of aliens into the country either on bond or on their own recognizance.

Expedited Removal

Process After the

Implementation of the

1996 Act
Page 5 GAO-02-220T

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.

In our September 2000 report, we stated that our review of documentation

in the case files of aliens who had been processed for expedited removal

indicated that INS inspectors were complying with the requirements of the

expedited removal process in almost all cases at Los Angeles, John

Fitzgerald Kennedy, 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.

In addition, we reported that 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.

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 our

September 2000 report, we pointed out that 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 Was Generally in

Compliance With the

Requirements of the

1996 Act

INS Released Many

Aliens, and Many of

Them Did Not Appear

for Their Hearing
Page 6 GAO-02-220T

Once an asylum officer determines that aliens have a credible fear of

persecution or torture, INS’ October 1998 Detention Use Policy favors

releasing 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.

INS’ October 1998 national detention policy and priority system has four

categories of aliens for the purpose of making detention decisions.

• 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.

• 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 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. INS’

policy favors releasing aliens in cases when an asylum officer determined

INS’ Policy Favors

Releasing Credible Fear

Aliens Provided They Meet

Certain Conditions
Page 7 GAO-02-220T

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.

Guidance for making a release decision is found in regulations.10 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

periodically reporting to INS 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

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.

While indicating compliance with INS’ detention guidance, 28 district

offices in our survey reported other factors they considered when making

release or detention decisions. These factors included community ties,

such as evidence of family or friends in the United States or sponsorship

of religious or charitable groups, and criminal history check against law

enforcement databases. 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).

 10 8 C.F.R. 212.5.
Page 8 GAO-02-220T

In those 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 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. 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, and September 30, 1999. As

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. 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.

It should be noted that many of the 5,320 cases involved aliens who had

appeared for their initial removal hearing and were scheduled for

subsequent hearings to determine if they should be granted relief from

removal (e.g., granted asylum). EOIR officials told us that as more of these

cases are completed over time, a greater percentage of aliens will appear

for their hearing, which will result in a lower in absentia rate. They

estimated that when all the cases are completed, the failure-to-appear rate

would fall from 42 percent to as low as 25 percent.

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.

We reported in September 2000 that many aliens who requested a change

in removal hearing location failed to appear at their hearing. 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. During our discussion with

A Significant Number of

Released Aliens Are Not

Appearing for Their

Removal Hearings

Many Aliens Who Changed

Removal Hearing Location

Were Not Appearing for

Their Hearings
Page 9 GAO-02-220T

immigration judges in New York City, 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.

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. In addition, 1,239

of the 3,140 aliens who did not file an asylum application were

subsequently ordered removed by an immigration judge.

In our September 2000 report, we concluded that many aliens may be

using the credible fear process to illegally remain in the United States. In

addition, our analysis showed that aliens who requested and received a

change of location of their removal hearing did not appear for their

hearings. Accordingly, we recommended that the INS reevaluate its policy

for when to release aliens who have a credible fear of persecution or

torture, and that INS and EOIR work together to establish a system to

provide better information from the aliens when they request a change of

venue of their removal hearing. The Department of Justice agreed with our

recommendations and said that it is are studying how to address our

recommendations.

As previously mentioned, INS decided not to subject aliens who attempt to

enter the country between ports of entry or without inspection or parole

to the expedited removal process. Instead, once an alien is apprehended,

generally by the Border Patrol, INS usually takes one of two courses of

action.

Under the first course of action, an apprehended alien can request INS to

permit him or her to voluntarily depart the country. This is commonly

Many Aliens Are Not Filing

Asylum Applications

INS’ Processes for

Denying Aliens Entry

Between Ports of

Entry and Without

Inspection
Page 10 GAO-02-220T

referred to as voluntary return to home country. By permitting the aliens

to voluntarily return to their country, the aliens would not be subject to

any penalty or fine. But if they wanted to return to the United States their

subsequent visa applications may note that they had previously enter the

country without permission. Voluntary departure can take place

immediately after the alien’s background is checked or at a future date

specified by INS. INS considers these requests on a case-by-case basis and

would permit the alien to voluntarily depart if, for example, the alien had

no criminal record or history of illegal attempts to enter the country.

INS has a reciprocal agreement with Mexico and Canada, that they will

accept their citizens. The aliens from Mexico or Canada who are

apprehended near their border would be returned immediately under a

voluntary removal granted by the INS. If apprehended away from their

border and INS granted voluntary removal, the aliens would then be flown

to their home country. For aliens who are not from Mexico or Canada,

they would be flown home if INS offered them voluntary removal. INS

officials said that in such situations, the aliens would usually remain under

INS’ control until they can be returned to their country.

Under the second course of action, INS can place aliens in a removal

hearing before an immigration judge. This action results in a penalty that

would limit the alien’s ability to reenter the country in the future. During

removal hearings, aliens can apply for relief from their removal (e.g., apply

for asylum). INS can detain aliens during the removal hearing process or

release the aliens on bond or on their on recognizance. In deciding

whether or not to detain the aliens, INS considers such factors as the

likelihood that the aliens will appear for their removal hearing or whether

aliens present a danger to the community.

Mr. Chairman, this completes my statement. I would be pleased to answer

any questions that you or other members of the Subcommittee may have.

For further information regarding this testimony, please contact Richard

M. Stana at (202) 512-8777. James M. Blume made key contribution to this

testimony.

Contact and

Acknowledgment

(440099)