CRIMINAL ALIENS

INS’ Efforts to Identify and

Remove Imprisoned Aliens

Continue to Need

Improvement

Statement of Norman J. Rabkin, Director

Administration of Justice Issues

General Government Division

United States General Accounting Office

GAO Testimony

Before the Immigration and Claims Subcommittee

Committee on the Judiciary

House of Representatives

For Release on Delivery

Expected at 9:30 a.m. EST

February 25, 1999

GAO/T-GGD-99-47

Statement

Page 1 GAO/T-GGD-99-47

Mr. Chairman and Members of the Subcommittee:

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

Naturalization Service’s (INS) efforts to initiate and complete removal

proceedings1 for criminal aliens in state and federal prisons through its

Institutional Hearing Program (IHP).2 The IHP is a cooperative program

involving the INS, the Executive Office of Immigration Review (EOIR), and

federal and state correctional agencies. It was formally established in 1988

to enable INS and EOIR to complete removal proceedings for criminal

aliens while they were still serving their sentences, thus eliminating the

need for INS agents to locate the aliens after their release, and freeing up

INS detention space for other cases. With the proceedings complete,

expeditious removal of criminal aliens upon completion of their sentences

can occur. Federal law requires the Attorney General to initiate and, to the

extent possible, complete removal proceedings for aggravated felons

before their release from incarceration. INS has been delegated the

authority to enforce the immigration laws.

In 1997, we reported to this Subcommittee that the Immigration and

Naturalization Service (INS) needed to improve its efforts to identify

potentially deportable criminal aliens in federal and state prisons and

complete the IHP for these aliens before they were released.3

 We based

this conclusion on our analysis of data provided by the Federal Bureau of

Prisons (BOP) and five states4

 on foreign-born inmates who were released

from their prison systems between April and September, 1995.

INS’ Executive Associate Commissioner for Programs told the

Subcommittee that INS had improved program operations since 1995. In

response, the Subcommittee asked us to review program performance

 1

Under revised provisions for the removal of aliens established in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, P.L. 104-208, aliens charged by INS as deportable are now placed

in “removal” proceedings as opposed to “deportation” proceedings. Proceedings initiated before the

effective date of the 1996 Act would be in “deportation” proceedings. For consistency, we refer to

proceedings as removal hearings or proceedings throughout this testimony.

2

In June 1998, the IHP was subsumed under a broader program called the Institutional Removal

Program (IRP). The IRP is to capture data for all removals that originate in an institutional setting,

including the IHP, reinstatements of prior final removal orders, and administrative removal orders.

During the period covered by our review, the IRP was proposed but not official. Therefore, this

testimony provides information almost exclusively on IHP performance.

3

 Criminal Aliens: INS’ Efforts to Identify and Remove Imprisoned Aliens Need to Be Improved (GAO/TGGD-97-154, July 15, 1997).

4

 The five states were Arizona, California, Florida, New York, and Texas.
Statement

Page 2 GAO/T-GGD-99-47

during 1997. Our report in response to that request5 was based on foreignborn inmates released from BOP and four states’ prisons between January

and June, 1997.6

Although our results indicated that INS’ performance had shown some

improvement, we continue to have several of the same concerns about the

IHP. In 1997, INS still had not identified many potentially deportable aliens

while they were in prison. The majority of these released criminal aliens

were aggravated felons, some of whom were reconvicted for new felonies.

INS completed the IHP for about half of the released criminal aliens it

identified as potentially deportable while they were in prison. Because INS

had to detain aliens who did not complete the hearing process in prison,

INS incurred approximately $40 million in avoidable detention costs. In

addition, INS had not fully implemented the recommendations we made in

our 1997 report to improve the IHP.

As was the case when we reported to this Subcommittee in July 1997, we

again found that INS had not identified all potentially deportable

imprisoned criminal aliens. As a result, INS did not fully comply with the

legal requirements that it (1) place criminal aliens who had committed

aggravated felonies in removal proceedings while they are incarcerated or

(2) take those aggravated felons into custody upon their release from

prison.

In 1995, INS’ database of deportable aliens did not have records on about

34 percent (5,884 of 17,320) of the released inmates included in our

analysis who had been identified by the states and BOP as foreign born.

About 32 percent of these (1,899) were subsequently determined by INS’

Law Enforcement Support Center (LESC) to be potentially deportable

criminal aliens.

In 1997, INS had no records on 36 percent of such aliens (7,144 of 19,639),

of whom 27 percent (1,903) were determined by LESC to be potentially

deportable criminal aliens. Although some of these inmates were citizens

and some were ordered removed through means other than IHP, a

substantial number were aliens on whom INS did not have records.

 

5

 Criminal Aliens: INS’ Efforts to Remove Imprisoned Aliens Continue to Need Imp0rovement

(GAO/GGD-99-3).

6

 We eliminated Arizona from our current study because the Subcommittee request letter specified that

we focus on BOP and the four selected states. Arizona accounted for a small number (626 of 17,320) of

the total cases in our 1995 analysis.

INS Still Failed to

Identify All Deportable

Criminal Aliens,

Including Aggravated

Felons
Statement

Page 3 GAO/T-GGD-99-47

In 1995, about 33 percent (635) of these potentially deportable criminal

aliens for whom INS did not have records were aggravated felons at the

time of the analysis, as determined by LESC. In our analysis of 1997 data,

63 percent (1,198) of the potentially deportable criminal aliens for whom

INS did not have records were identified by LESC as being aggravated

felons. According to INS, this increase may be due to the additional crimes

classified as aggravated felonies in the 1996 Act. This is important because

federal law requires INS to initiate removal proceedings for aggravated

felons while they are incarcerated and, to the extent possible, complete

deportation proceedings for these felons before their release from prison.

According to the INS and EOIR databases, none of the 1,903 potentially

deportable criminal aliens had been in removal proceedings while they

were in prison or afterward, had been taken into INS custody, or had been

deported. LESC provided information on the post-release criminal

activities of the 1,198 aggravated felons as follows:

• 80 of the 1,198 criminal aliens were rearrested,

• 19 of the 80 aliens were charged with committing additional felonies, and

• 15 of the 19 were convicted of the felony charges.

We asked LESC to provide us with information on the nature of the crimes

for which the 80 criminal aliens were rearrested. These included crimes

such as assault, robbery, and drug offenses. The types of felonies for which

the 15 aliens were convicted included crimes mostly involving drug

possession, burglary, theft, and robbery.

Our analysis of data from the first 6 months of 1997 revealed that 12,495

released inmates were, according to INS and EOIR databases, potentially

deportable.7

 We found that about 45 percent of these inmates were

released from prison with a final deportation order (having completed the

IHP), about 3 percent were released from prison without a deportation

order but with INS’ having completed the removal hearing process, and

about 36 percent were released from prison before INS completed the

process. For the remaining 15 percent8

 of inmates, there was no indication

that hearings were completed either before or after prison release. In

 

7

 INS’ data on the IHP were limited because INS had not identified all individuals who were foreignborn inmates in the BOP and state prison systems and did not maintain a database of these individuals

that would enable it to routinely track the IHP status of all potentially deportable inmates. Therefore,

as was the case in fiscal year 1995, INS could not readily determine where individuals were in the IHP

process, nor could it readily provide summary information on the number of criminal aliens who had

committed aggravated felonies.

8

 Numbers do not sum to 100 percent due to rounding.

INS Did Not Complete

the IHP For About Half

of the Released

Criminal Aliens,

Incurring Millions in

Avoidable Detention

Costs
Statement

Page 4 GAO/T-GGD-99-47

comparison, our analysis of data for a 6-month period in 1995 revealed that

40 percent of 11,436 potentially deportable released inmates completed the

IHP with a final deportation order, 3 percent completed the IHP with no

deportation order, and 41 percent were released from prison before INS

completed the process. There was no evidence of hearings being

completed for the remaining 16 percent.

Not completing removal proceedings during incarceration means that INS

has to use its limited detention space to house released criminal aliens

rather than using the space to detain other aliens. INS has acknowledged

that it incurs detention costs for housing these aliens; costs that our

analyses showed could be avoided. Our analysis of fiscal year 1995 data

showed that detention costs of about $37 million could have been avoided

for criminal aliens who completed the hearing process after prison release

and were deported within 9 months of release. Our analysis of fiscal year

1997 data showed that INS could have avoided over $40 million in

detention costs for such cases. At least some of the savings in detention

costs that INS could realize by processing more criminal aliens through the

IHP would be offset by any additional funding that might be required to

provide additional resources for the IHP.

At the 1997 hearing, the Chairman urged INS to fully implement GAO’s

recommendations for improving the IHP. As of July 1998, INS had made

limited progress in doing so.

We stated in our July 1997 testimony that INS needed better information

about prison inmates--more specifically, information about which inmates

are eligible for the IHP and which of these inmates have been and have not

been included in the program. Our work at that time showed that INS’

databases did not contain complete and current information on the IHP

status of individual foreign-born inmates at any given point in time. INS

could use this information to determine which of the released foreign-born

inmates had been screened for the IHP, identified as deportable, or placed

in the hearing process. We recommended that the Commissioner of INS

establish a nationwide data system containing the universe of foreign-born

inmates reported to INS by BOP and the state departments of corrections

and use this system to track the IHP status of each inmate. As of

September 1998, INS had begun to establish an automated system for

tracking potentially deportable criminal aliens in BOP facilities, but it had

not determined whether it will be able to use this system to track

potentially deportable criminal aliens in state prison systems.

INS Has Not Fully

Implemented Our

Recommendations

Nationwide Database
Statement

Page 5 GAO/T-GGD-99-47

The law requires INS to take certain actions regarding criminal aliens who

have been convicted of aggravated felonies beyond those actions required

for other criminal aliens. As previously mentioned, INS is required by law

to initiate and, to the extent possible, complete removal proceedings

against aggravated felons while they are incarcerated and to take these

felons into custody upon their release. Our work shows, as it did in July

1997, that INS had not complied fully with the required provisions of the

law. In 1997, we recommended that the Commissioner of INS give priority

to aliens serving time for aggravated felonies by establishing controls to

ensure that these aliens (1) are identified from among the universe of

foreign-born inmates provided by BOP and the states, (2) are placed into

removal proceedings while in prison, and (3) are taken into custody upon

their release. By September 1998, INS had not taken specific actions to

ensure that aggravated felons are placed in removal proceedings while

they are incarcerated and then taken into custody upon their release from

prison. In its May 1998 performance review, INS stated that priority is

given to aliens with early release dates—as opposed to aggravated

felons—to ensure that deportable aliens are not released into the

community.

We previously reported to this Subcommittee that INS had established IHP

performance goals without having a systematic basis for determining the

performance results it could accomplish with various resource levels. We

reported that INS had not developed a uniform method for projecting the

resources it would need--taking into consideration the level of cooperation

from BOP and the states--to achieve its overall goal of completing removal

proceedings for every eligible foreign-born inmate before release from

prison. We recommended that the Commissioner of INS (1) develop a

workload analysis model to identify the IHP resources needed in any

period to achieve overall program goals and the portion of those goals that

would be achievable with alternative levels of resources and (2) use the

model to support its IHP funding and staffing requests. Such a model was

to consider several factors, including the number of foreign-born inmates,

number of prisons that must be visited, number and types of IHP staff,

length of time to process cases, and travel time and costs. We also

reported in our July 1997 testimony that INS had a 30-percent attrition rate

for immigration agents, which was significantly higher than the 11-percent

average attrition rate for all INS staff. We recommended that the

Commissioner identify the causes of immigration agent attrition and take

steps to ensure that staffing was adequate to achieve IHP program goals.

INS completed a draft workload analysis model in June 1998 that IHP

managers intend to use to determine what resources are needed to

accomplish program goals. INS had not resolved the problem of high

Controls to Ensure That

Proceedings For Aggravated

Felons Are Initiated Before

Prison Release

Resource Issues
Statement

Page 6 GAO/T-GGD-99-47

attrition among immigration agents, who are considered the backbone of

the IHP.

We reported to this Subcommittee in July 1997 that INS’ top management

(1) had not formally communicated to the district directors how additional

staff (e.g., newly hired immigration agents) should be used in the IHP, (2)

did not ensure that specific operational goals were established for each

INS district director with IHP responsibilities, and (3) did not respond with

specific corrective actions when it became apparent that the program

would not achieve its goals for fiscal year 1996.

Therefore, we recommended that INS establish and effectively

communicate a clear policy on the role of special agents in the IHP (e.g.,

whether immigration agents were replacements for or supplements to

special agents). We also said that INS should use a workload analysis

model to set IHP goals for district directors with IHP responsibilities.

Furthermore, we said that if it appeared that IHP goals would not be met,

INS should document actions taken to correct the problem.

However, our work last year showed that INS had not (1) clarified whether

immigration agents were replacements for or supplements to special

agents in doing IHP work, (2) set IHP goals for district directors in either

fiscal years 1997 or 1998 and for regional directors in fiscal year 1998, and

(3) specifically addressed the recommendation to document actions taken

by the agency when it appeared that the IHP goals would not be met.

Despite its assertions at last year’s hearing, INS generally showed limited

improvement in its IHP performance based on our analysis of INS’ 1997

program performance. This, coupled with INS’ slow response to our

recommendations, suggests that INS still does not know whether it has

identified all potentially deportable criminal aliens in the BOP and state

prison systems. More importantly, INS still is not doing all it should to

ensure that it is initiating removal proceedings for aggravated felons and

taking them into custody upon their release from prison.

We continue to believe that the recommendations we made in our 1997

testimony are valid and that INS should fully implement them as soon as

possible.

Mr. Chairman, this completes my statement. I would be happy to respond

to your questions at this time.

Better Management

Oversight

Conclusions
Page 7 GAO/T-GGD-99-47
Page 8 GAO/T-GGD-99-47
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