Immigration Enforcement: ICE Could Improve Controls to Help Guide Alien Removal Decision Making
Published: 2007-10-15T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Officers with U.S. Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) investigate violations of immigration laws and identify aliens who are removable from the United States. ICE officers exercise discretion to achieve its operational goals of removing any aliens subject to removal while prioritizing those who pose a threat to national security or public safety and safeguarding aliens' rights in the removal process. The General Accountability Office (GAO) was asked to examine how ICE ensures that discretion is used in the most fair, reasoned, and efficient manner possible. GAO reviewed (1) when and how ICE officers and attorneys exercise discretion and what internal controls ICE has designed to (2) guide decision making and (3) oversee and monitor officers' decisions. To conduct this work, GAO reviewed ICE manuals, memorandums, and removal data, interviewed ICE officials, and visited 21 of 75 ICE field offices.
section_title: What GAO Found
paragraphs: ICE officers exercise discretion throughout the alien apprehension and removal process, but primarily during the initial phases of the process when deciding to initiate removals, apprehend aliens, issue removal documents, and detain aliens. Officers GAO interviewed at ICE field offices said that ICE policies and procedures limit their discretion when encountering the targets of their investigations--typically criminal or fugitive aliens, but that they can exercise more discretion for other aliens they encounter. Officers also said that they consider humanitarian circumstances, such as sole caregiver responsibilities or medical reasons, when making these decisions. Attorneys, who generally enter later in the process, and officers told GAO that once removal proceedings have begun, discretion is limited to specific circumstances, such as if the alien is awaiting approval of lawful permanent resident status. Consistent with internal control standards, ICE has begun to update and enhance training curricula to better support officer decision making. However, ICE has not taken steps to ensure that written guidance designed to promote the appropriate exercise of discretion during alien apprehension and removal is comprehensive and up to date and has not established time frames for updating guidance. For example, field operational manuals have not been updated to provide information about the appropriate exercise of discretion in light of a recent expansion of ICE worksite enforcement and fugitive operations, in which officers are more likely to encounter aliens with humanitarian issues or who are not targets of investigations. Also, ICE does not have a mechanism to ensure the timely dissemination of legal developments to help ensure that officers make decisions in line with the most recent interpretations of immigration law. As a result, ICE officers are at risk of taking actions that do not support operational objectives and making removal decisions that do not reflect the most recent legal developments. Consistent with internal control standards, ICE relies on supervisory reviews to ensure that officers exercise appropriate discretion and has instituted an inspection program designed to ensure that field offices comply with established policies and procedures. However, ICE lacks other controls to help monitor performance across the 75 field offices responsible for making apprehension and removal decisions. A comprehensive mechanism for reviewing officers' decision making could provide ICE with meaningful information to analyze trends to identify areas that may need corrective action and to identify best practices. ICE officials acknowledged they do not collect the data necessary for such a mechanism and said doing so may be costly. Without assessing costs and alternatives, ICE is not in a position to select an approach that will help identify best practices and areas needing corrective action.

section_title: Letter
paragraphs: Responsibility for the enforcement of immigration laws within the interior  of the United States rests with U.S. Immigration and Customs  Enforcement (ICE), which plans and conducts investigations of persons  and organizations subject to criminal and administrative provisions of the  Immigration and Nationality Act (INA). ICE officers investigate violations  of immigration law and are responsible for identifying aliens—that is,  persons who are not citizens or nationals of the United States—who are  removable from the United States. Aliens may be subject to removal for a  wide variety of reasons, including entering the United States illegally,  staying longer than their authorized period of admission, being convicted  of certain crimes, or engaging in terrorist activities. Aliens who enter the  United States illegally are subject to removal, as are aliens who violate  immigration law after entering the country legally. According to its  strategic plan, ICE focuses the greater part of its immigration enforcement  efforts on aliens who pose a threat to national security and public safety,  as well as on aliens who have ignored orders to leave the United States.  According to ICE records, in fiscal year 2006, ICE removed about 182,000  aliens from the United States as part of its enforcement efforts.
In recent years, through targeted investigative operations, ICE  components have increased their efforts to enforce immigration laws and  apprehend and remove aliens subject to removal. The ICE Office of  Investigations (OI), which has responsibility for investigating immigration  and other crimes related to national security, has increased its emphasis  on worksite enforcement operations. These operations are conducted to  apprehend and remove aliens who are unlawfully employed and impose  sanctions on employers who knowingly employ these aliens. According to  ICE data, the number of worksite enforcement arrests increased from 510  in fiscal year 2002 to 4,383, in fiscal year 2006. Likewise, ICE’s Office of  Detention and Removal Operations (DRO), which has responsibility for  ensuring that all removable aliens depart from the country, has increased  its emphasis on fugitive operations, which are enforcement operations  designed to locate, apprehend, and remove aliens from the country who  have not complied with orders of removal issued by an immigration  judge—known as fugitive aliens. Over the last 2 fiscal years, the number  of fugitive arrests conducted by DRO increased from 7,958 in fiscal year  2005 to 15,467 in fiscal year 2006. In carrying out these operations and  processing aliens for removal, OI and DRO officers are to work with  attorneys from ICE’s Office of the Principal Legal Advisor (OPLA), which  is responsible for providing legal advice, training, and services to support  the ICE mission and for defending the interests of the United States in the  administrative and federal courts. In fiscal year 2006, OPLA handled  approximately 324,000 proceedings in immigration courts.
During the process of enforcing immigration law, there are a number of  decisions that ICE officers and attorneys must make, taking into account  all facts and circumstances of each case, about the apprehension and  disposition of aliens who are subject to removal. Specifically, ICE officers  exercise discretion when they decide whom to stop, question, and arrest;  how to initiate removal; whether to grant voluntary departure (whereby  aliens agree to waive their rights to a hearing and are escorted out of the  United States to their home countries by ICE officers); and whether to  detain an alien in custody. For example, ICE officers might consider  alternative ways to initiate removal proceedings—other than immediate  apprehension and detention—when they encounter aliens who are sole  caretakers for minor children or who are ill and are undergoing medical  treatment. In other circumstances, officers might decide not to question  and arrest some aliens they suspect are subject to removal in the interest  of pursuing other law enforcement efforts that provide a greater value to  the nation—such as those involving known criminals or threats to national  security. Also, once an ICE officer has made a decision to pursue removal,  ICE attorneys exercise discretion when they decide whether and how to  settle or dismiss a removal proceeding or to appeal a decision rendered by  an immigration judge.
All of these decisions are made within the context of the number of aliens  subject to removal from the United States (estimated to be about 12  million in 2006); ICE resources available to investigate, apprehend, and  remove aliens subject to removal; and the circumstances surrounding each  case. One of ICE’s operational objectives is to apprehend and remove  aliens who are subject to removal—with a priority on those aliens who  pose a threat to national security and public safety—while safeguarding  aliens’ rights in the removal process. Nonetheless, given the large number  of aliens in the country who are subject to removal, it is virtually  impossible for ICE officers to investigate and arrest every potentially  removable alien encountered through the course of an enforcement effort.  ICE headquarters officials told us that data are not collected about  potentially removable aliens whom its officers may encounter and against  whom officers do not take actions that may result in removal proceedings.  For this reason, the data provided in this report focus primarily on aliens  for whom removal proceedings have been initiated.
Because of the important role that discretion plays in the alien  apprehension and removal process, you asked us to examine how ICE  ensures that discretion is used in the most fair, reasoned, and efficient  manner possible. Along these lines, we examined whether ICE has  designed internal controls to guide and monitor officers’ exercise of  discretion when making alien apprehension and removal decisions,  consistent with internal control standards for the federal government.  Specifically, this review addresses the following three questions:  1.  When and how do ICE officers and attorneys exercise discretion  during the alien apprehension and removal process?  2.  What internal controls has ICE designed to guide officer decision  making to enhance its assurance that the exercise of discretion  supports its operational objectives?  3.  What internal controls has ICE designed to oversee and monitor  officer decision making during the alien apprehension and removal  process to enhance ICE’s assurance that the exercise of discretion  supports its operational objectives?
To address these questions, we reviewed relevant laws and regulations as  well as applicable policies, memorandums, field operational manuals, and  training materials developed by OI, DRO, and OPLA headquarters offices.  We also examined available data on alien apprehensions for worksite  enforcement and fugitive operations to understand decision outcomes  resulting from alien apprehension enforcement operations. We performed  procedures to test the data’s reliability and we concluded that the data  were reliable for the purpose of our review. We also met with officials at  OI, DRO, and OPLA in Washington, D.C.; and interviewed ICE officers,  supervisors, and managers in 14 ICE field offices—seven OI and seven  DRO field offices—located in seven cities throughout the United States:  Chicago, Detroit, Los Angeles, New York, Philadelphia, Phoenix, and San  Diego. In addition, we interviewed ICE attorneys, supervisors, and  managers in seven Chief Counsel Offices (which serve as OPLA’s field  offices) at these same locations. We asked both officers and attorneys  about when and how they have exercised and are expected to exercise  discretion in the course of their duties related to alien removal. We  selected these locations considering field office size, ICE data on alien  apprehensions, and geographic dispersion. As we did not select probability  samples of field offices to visit and ICE officers and attorneys to interview,  the results of these interviews may not represent the views of ICE officers  and attorneys nationwide.
We also reviewed field operational manuals, headquarters policy  memorandums, locally developed field guidance, and training materials.  We asked headquarters officials and officers and attorneys in the field  about the guidance and information that would help to inform alien  apprehension and removal decisions available to officers, attorneys, and  their supervisors and managers. At headquarters and the various field  locations, we also examined available documentation on internal controls  in place to guide supervisory and managerial oversight and monitoring of  alien apprehension and removal decisions, and inquired about procedures  and practices for assessing the exercise of discretion and outcomes  associated with alien apprehension and removal decisions. We compared  the internal controls in place with the standards for internal control to  determine whether ICE’s internal controls are designed to provide  assurance that its officers and attorneys are best equipped to consistently  exercise discretion in support of its operational objectives. Appendix I  discusses the scope of our work and the methodology in greater detail.
We conducted our work for this report from August 2006 through  September 2007 in accordance with generally accepted government  auditing standards.
subsections: section_title: Background
paragraphs: Estimates of the size of the alien population subject to removal vary. A  report from the Pew Research Center estimated the population of  unauthorized aliens in the United States to be approximately 12 million as  of March 2006. According to DHS, the population of aliens subject to  removal from the United States has grown in recent years. DHS’s Office of  Immigration Statistics estimated that the population of aliens subject to  removal has increased by half a million from January 2005 to January 2006.  Additionally, DHS has estimated that the removable alien population grew  by 24 percent from 8.5 million in January of 2000 to 10.5 million in January  of 2005.
Aliens who are in violation of immigration laws are subject to removal  from the United States. Over 100 violations of immigration law can serve  as the basis for removal from the United States, including, among other  things, criminal activity, health reasons (such as having a communicable  disease), previous removal from the United States, and lack of proper  documentation. ICE investigations resulted in 102,034 apprehensions, or  about 8 percent of the approximately 1.3 million DHS apprehensions in  2005. Four main categories constituted the basis for aliens removed by  DHS in 2005: (1) aliens entering without inspection, by, for example,  illegally crossing the border where there is no formal U.S. port of entry; (2)  aliens attempting to enter the United States without proper documents or  through fraud, at U.S. ports of entry; (3) aliens with criminal convictions  or believed to have engaged in certain criminal activities, such as terrorist  activities or drug trafficking; and (4) aliens who are in violation of their  terms of entry (e.g., expired visa).
section_title: ICE Officers Exercise Discretion, Particularly for Aliens with Humanitarian Issues or Who Are Not Investigation Targets
paragraphs: Our review of ICE policies and procedures, along with interviews at ICE  field offices, showed that officers exercise discretion throughout various  phases of the alien apprehension and removal process, but the initial  phases of the process—initiating removals, apprehending aliens, issuing  removal documents and detaining aliens—involve the most discretion.  Officers in OI and DRO field offices told us that they exercise discretion  for aliens with humanitarian issues and aliens who are not investigation  targets on a case-by-case basis with guidance and approval from  supervisors. Officers told us they typically encounter (1) aliens who are  the target of an investigation and (2) aliens who are not the target of an  investigation but who are encountered through the course of an operation  and are subject to removal. While officers told us that discretion with  regard to aliens who are fugitives, criminals, and other investigation  targets is limited by clearly prescribed policies and procedures, they told  us that they have more latitude to exercise discretion when they encounter  aliens who are not fugitives or criminals and are not targets of ICE  investigations, particularly when encountering aliens with humanitarian  issues.
subsections: section_title: Most Discretion Is Exercised in the Initial Phases of the Apprehension and Removal Process
paragraphs: The alien apprehension and removal process encompasses six phases: (1)  initial encounter, (2) apprehension, (3) charging, (4) detention, (5)  removal proceedings, and (6) final removal. Our review of federal  regulations, ICE policies, guidance, and interviews showed the parts of the  removal process from the time officers encounter aliens as part of an  operation to the time they determine whether to detain an alien involve  the most discretion. During removal proceedings and final removal, ICE  attorneys and DRO officers can exercise discretion only in clearly  delineated situations prescribed by ICE policies and statutory and  regulatory requirements.
Officers told us that during the initial phases of the apprehension and  removal process, they encounter situations that require them to pursue  alternate ways to initiate removals, in lieu of apprehending aliens. During  encounters with aliens, officers told us that they decide how to exercise  discretion for aliens on a case-by-case basis with input from supervisors or  experienced officers. Specifically, officers told us that they exercise  discretion when they encounter aliens who (1) present humanitarian  concerns such as medical issues or being the sole caregiver for minor  children or (2) are not the primary target of their investigations.
subsections: section_title: Initial Encounter Phase
paragraphs: DRO and OI officers told us that their primary goal is to initiate removal  proceedings for any alien they encounter who is subject to removal.  However, officers told us that in some instances, they might decide not to  pursue any action against an alien who they suspect to be removable.  Officers at two OI and one DRO field office told us that, in some instances,  they are unable to initiate removal action against every alien they  encounter during the course of an operation. Officers noted that several  factors—such as the availability of detention space, travel time to an  alien’s location, and competing enforcement priorities—affect their  decisions to initiate removal action against an alien. Officers at one of the  seven OI field offices we visited also told us that because of limited  resources they have to make trade-offs between dedicating resources to  aliens who pose a threat to public safety and those who do not—that is,  noncriminal aliens—which in some instances result in decisions to not  initiate removal action against noncriminal aliens.
section_title: Apprehension Phase
paragraphs: Our review of DHS and ICE guidance showed that officers’ ability to  exercise discretion is limited for aliens who are investigation targets, such  as criminal aliens and fugitive aliens who have ignored a final removal  order. Discretion for apprehending these aliens is limited due to clearly  prescribed policies, and procedures—such as requirements under the INA  to detain terrorists or certain criminals—governing the handling of these  aliens. By contrast, officers at all seven DRO and seven OI field offices  we visited told us that they have discretion to process and apprehend  aliens who are not investigation targets or aliens who present  humanitarian circumstances. In such circumstances, officers told us that  they can exercise discretion by deciding to (1) apprehend an alien and  transport the alien to an ICE facility for processing, (2) issue the alien an  NTA by mail, or (3) schedule an appointment for the alien to be processed  at an ICE facility at a later date.
For example, in looking for a criminal alien who is the target of an  investigation, a fugitive operations team may encounter a friend or relative  of the targeted alien—who is also removable—but not the primary target  of an ICE investigation. If the friend or relative has a humanitarian  circumstance, like being the primary caregiver for small children, the  officers can decide to not apprehend the friend or relative and opt for  processing at a later time after reviewing the circumstances of the case  and determining that no other child care option is available at the time. In  such instances, ICE headquarters officials told us that officers are to  confirm child welfare claims made by an alien and determine whether  other child care arrangements can be made. Headquarters officials also  told us that aliens do not always divulge that they are the sole caretakers  of children but explained that if ICE agents became aware of an alien’s  child welfare responsibility, agents must take steps to ensure that the child  or children are not left unattended.
In addition, officers at two OI offices and one DRO office told us that in  some instances, such as when aliens are sole caretakers for minor children  or are ill, they will schedule appointments for aliens who are not  investigation targets to process them at a later date. Officers at five of the  seven OI field offices and two of the seven DRO offices we visited also told  us that they will mail an NTA—as an alternative to apprehension—to  aliens who present humanitarian issues such as medical conditions or  child welfare issues. At another OI field office, officers told us that when  determining whether to apprehend aliens or use an alternative to  apprehension—for aliens who are not investigation targets—they also  consider manpower availability.
section_title: Charging Phase
paragraphs: Our review of ICE guidance and procedures showed that most of an  officer’s discretion in the charging phase relates to the decision to grant  voluntary departure. Officers told us that when not statutorily prohibited  from granting voluntary departure, they have some discretion in  determining whether to issue an NTA and thus initiate formal removal  proceedings or grant voluntary departure in lieu of initiating formal  removal proceedings, which typically results in a hearing before an  immigration judge. Officers told us that they may consider factors like  humanitarian concerns and ICE priorities when exercising discretion to  grant voluntary departure.
On the basis of our review of ICE data, we noted significant variation in  the use of voluntary departure across field offices. Our review of OI  apprehension data also showed that three OI field offices near the U.S.  southwestern border initiated a relatively higher number of voluntary  departures (equal or greater than the number of NTAs issued). ICE  headquarters officials noted that officers at field offices near the U.S.  southwestern border employ voluntary departure generally because of  their proximity to the U.S.-Mexico border, which enables them to easily  transport Mexican nationals to Mexico. Figure 1 illustrates the number of  NTAs and voluntary departure issued by OI field offices.
Our review of procedures also showed that if detention is not mandated by  the INA, officers have discretion to determine if an alien will be detained  or released pending the alien’s immigration court hearing. When making  this determination, ICE guidance instructs officers to consider a number  of factors, such as humanitarian issues, flight risk, availability of detention  space, and whether the alien is a threat to the community. Officers at two  DRO field offices we visited told us that they exercise discretion to release  aliens from custody if appropriate facilities are not available or if  detention space is needed for aliens who pose a greater threat to public  safety. At one OI field office, officers provided an example of an operation  where they released two women and two children on their own  recognizance because of the lack of appropriate detention space to house  women and children. Officers at another DRO field office also noted that  detaining women and juveniles can be challenging because of limited  space to accommodate them. Detention determinations made by officers  can be reexamined by immigration judges upon an alien’s request.
section_title: Officers and Attorneys Have Less Discretion Once Removal Proceedings Have Been Initiated
paragraphs: Our review of ICE policy and DRO’s field operational manual showed that  ICE attorneys—who generally enter the process once proceedings have  begun—and officers have less discretion in the later phases of the  apprehension and removal process. Once an alien’s case arrives at the  removal proceedings phase and is being reviewed by ICE attorneys, we  found that the use of discretion at this stage is limited by clear policy and  guidelines. Our review of ICE policy and interviews with attorneys at 5 of  7 Chief Counsel Offices showed that most aliens have few alternatives to  appearing before immigration court after entering the removal proceeding  phase. Circumstances in which ICE might not pursue proceedings include  a legally insufficient NTA; an alien’s eligibility for an immigration benefit,  such as lawful permanent residency; and an alien’s serving as a witness in  a criminal investigation or prosecution. In these specific cases, ICE  attorneys can exercise discretion not to pursue proceedings by asking the  immigration court to terminate removal proceedings if the NTA has been  filed with the court. ICE OPLA guidance also permits ICE attorneys to take  steps to resolve a case in immigration court for purposes of judicial  economy, efficiency of process, or to promote justice. Examples in the  guidance include cases involving sympathetic humanitarian circumstances  like an alien with a U.S. citizen child with a serious medical condition or  disability, or an alien or close family member who is undergoing treatment  for a potentially life-threatening disease.
ICE policy states that DRO may exercise discretion and grant some form  of relief to the alien, such as a stay of removal and deferred action at the  final phase of the process. A stay of removal is specifically authorized by  statute and constitutes a decision that removal of an alien should not  immediately proceed. Deferred action gives a case a lower removal  priority, but is not an entitlement for the alien to remain in the United  States. While some aliens could be granted a stay or deferred action by  DRO field office managers, DRO officers told us that DRO seeks to  execute removal orders in the vast majority of cases. DRO officers in field  offices told us that they could recall only a handful of cases when DRO  officers did not execute a removal order after it was issued by an  immigration judge. Supervisors in one DRO field office recalled a case in  which a stay was granted to an aggravated felon who had a serious  medical condition.
section_title: ICE Has Strengthened Training Programs, but Lacks Comprehensive Guidance and Consistent Legal Updates to Inform Decision Making
paragraphs: Officers at DRO and OI field offices who are responsible for apprehending,  charging, and detaining removable aliens are to rely on formal and on-the- job training, guidance provided by supervisors, and guidance provided in  field operational manuals to inform their decision making regarding alien  apprehensions and removals. Consistent with internal control standards,  which call for training to be aimed at developing and retaining employee  skill levels to achieve changing organizational needs, ICE has updated  some of the training it offers to officers responsible for making alien  apprehension and removal decisions. Some of the updated training  includes, among other things, implementing worksite enforcement  training, supervisory training for OI supervisors, and Spanish language  training for newly hired DRO officers. These updates have the potential to  provide critical information to officers and supervisors to better support  their decision making. However, ICE guidance, including ICE’s field  operational manuals and ICE memorandums, on the exercise of discretion  during the alien apprehension and removal process does not serve to fully  support officer decision making in cases involving humanitarian issues  and aliens who are not primary targets of ICE investigations. For example,  ICE has not completed efforts to provide officers with complete and up to  date guidance to reflect expanded worksite and fugitive operations  enforcement efforts. ICE headquarters officials told us that they do not  have a time frame for completing efforts to update available guidance in  field operational manuals. In addition, although Chief Counsel Offices  provide information regarding legal developments to DRO and OI officers  to guide their decision making, ICE does not have a mechanism to ensure  that such information is disseminated consistently to officers across field  offices. The lack of comprehensive guidance and a mechanism by which to  help ensure that officers receive consistent information regarding legal  developments puts ICE officers at risk of taking actions that are not  appropriate exercises of discretion and do not support the agency’s  operational objectives.
subsections: section_title: ICE Has Instituted Training for Supervisors and Specialized Operations and Has Other Training Initiatives in Early Phases of Development
paragraphs: Internal control standards state that training should be aimed at  developing and retaining employee skill levels to meet changing  organizational needs. Officers at DRO and OI field offices who are  responsible for apprehending, charging, and detaining removable aliens  rely on formal and on-the-job training and guidance provided by  supervisors to inform their decision making regarding alien apprehensions  and removals. ICE has recently begun undertaking reviews and revisions  of training that are consistent with these internal controls by updating and  revising existing training curricula and implementing new training  curricula for OI and DRO officers to provide critical information to  officers and supervisors to better inform their decision making. These  actions are important steps for providing officers with relevant  information to inform their decision making. In early 2007, OI instituted a  2-week worksite enforcement training course geared toward informing  ICE officers regarding criminal investigation techniques and procedures,  which also provides information on the exercise of discretion regarding  aliens who present humanitarian issues. OI headquarters officials  identified worksite enforcement as a training need, since these operations  are expanding, and an OI headquarters official told us that most OI officers  had not participated in major worksite enforcement operations since 1998  and that many of the officers who participate are temporarily assigned to  the operation from other duties or locations. Because of expanded  worksite enforcement operations, officials told us that OI instituted  worksite enforcement training, which will be offered to 100 OI officers per  year. Headquarters officials told us that resource constraints preclude ICE  from offering worksite enforcement training to all officers.
In addition to worksite enforcement training, OI officials told us that they  are also in the process of instituting additional changes to training  curricula that could better support officer decision making:    OI officials told us that they developed a 3-week training course for  first-line supervisors, with 1 week of the course designed to provide  information on legal issues pertaining to removal dispositions, such as  instances when to issue an NTA or grant voluntary departure.
An OI official told us that OI is developing a 3-week refresher training  course for experienced OI officers, to reinforce these officers’  knowledge of alien apprehension and removal operations. According to  OI’s chief of training, this course should be implemented by the second  quarter of fiscal year 2008.
OI officials have revised an “On the Job” training manual that tracks  tasks that new officers must complete in their first 18 months on the  job. According to an OI training official, by completing the tasks  outlined in the manual, officers should have a full understanding of the  requirements for processing aliens, which include exercising discretion  throughout the apprehension and removal process (e.g., whether to  immediately apprehend the alien or to mail an NTA).
Like OI officials, DRO officials have also taken steps to strengthen training  for DRO officers. In April 2007, DRO added a Spanish language course to  its basic training curriculum. According to DRO headquarters training  officials, this training will better equip officers to communicate with aliens  and thus help ensure that officers make appropriate decisions about how  to exercise discretion for aliens. In addition, DRO is developing a 3-week  refresher training for experienced DRO officers designed to provide  officers with skills, tactics and legal updates pertaining to alien  apprehension and removal operations and plans to implement this course  in October 2008. DRO headquarters officials also told us that they will  institute a 2-year “On the Job” training program in September 2007.  According to officials, this program is to provide newly appointed officers  with additional training on immigration laws, competencies, and tasks  related to their jobs. While the recent changes to the OI and DRO training  curricula are positive steps in better aligning ICE training with operations,  it is too soon for us to assess the effectiveness of these efforts.
section_title: Operational Guidance Lacks Comprehensive Information to Inform Decision Making and Has Not Been Updated to Fully Reflect Current Operations
paragraphs: According to internal control standards, management is responsible for  developing and documenting the detailed policies, procedures, and  practices to ensure that they are an integral part of operations. DRO and  OI officers generally rely on (1) OI and DRO field operational manuals; (2)  DHS and ICE memorandums; and (3) an OI-developed worksite  enforcement operational guidebook for guidance and policies to perform  their duties, including making decisions regarding alien apprehensions and  removals. However, ICE guidance to instruct officer decision making in  cases involving humanitarian issues and aliens who are not primary targets  of ICE investigations during the alien apprehension and removal process is  not comprehensive and has not been updated by headquarters officials to  reflect ICE’s expanded worksite and fugitive operations. In addition,  although officers exercise discretion when deciding whether or not to take  action to initiate the removal process, ICE does not have guidance on  officers’ exercise of discretion on who to stop, question, and arrest when  initiating the removal process. Without comprehensive policies,  procedures, and practices, ICE lacks assurance that management  directives will be conducted as intended and that ICE officers have the  appropriate tools to fully inform their exercise of discretion.
ICE’s OI and DRO field operational manuals were created by ICE’s legacy  agency—Immigration and Naturalization Service (INS), which was  reorganized under the newly formed Department of Homeland Security in  March of 2003. Both of these manuals, which are largely unchanged from  the guidance developed and employed by INS, are currently undergoing  revisions. Our review of these manuals shows that they do not offer  comprehensive and updated guidance to instruct officers on the exercise  of discretion in cases involving aliens with humanitarian issues and aliens  who are not targets of ICE investigations. For example, OI’s field  operational manual offers some guidance on options for addressing aliens  with caregiver issues who are encountered during worksite operations,  such as ensuring that an alien’s dependents receive timely and appropriate  care. However, the guidance does not include, for example, provisions for  aliens with medical conditions. OI headquarters officials told us that they  are in the process of revising OI’s field operational manual but have not  yet updated the sections corresponding to alien apprehensions and  removals.
With respect to DRO’s field operational manual, some guidance is  available to help officers decide whether to detain aliens pending their  immigration hearings, but it does not clarify how officers should exercise  discretion to determine detention for nonmandatory detention cases,  especially for aliens with humanitarian issues or aliens who are not targets  of ICE investigations. DRO headquarters officials told us that they are  revising a chapter in the manual on fugitive operations but the revisions  are not yet available to DRO officers in the field. For both the OI manual  and the fugitive operations chapter in the DRO manual, headquarters  officials told us that they did not yet know if the revisions would include  guidance on the use of discretion for aliens with humanitarian issues or  aliens who are not the targets of ICE investigations. Moreover, OI and  DRO officials could not provide a time frame for when the revisions will  be completed.
The various ICE organizational units with removal responsibilities have  issued some guidance to help guide their own officers’ and attorneys’  exercise of discretion for aliens with humanitarian issues, but the  guidance either is not comprehensive with regard to the various  circumstances the officers and attorneys may encounter or does not apply  to officers who have the authority to initiate removal proceedings. A  memo issued in 2006 by DRO to its field offices, outlines severe medical  illnesses as a basis for exercising discretion when deciding whether to  detain aliens who are not subject to mandatory detention. While this  memo provides important guidance for exercising discretion during the  detention phase for aliens with medical issues, it does not address child  welfare and primary caretaker issues. In addition, a 2005 memo issued by  OPLA permits ICE attorneys to take steps not to pursue proceedings by  asking the immigration court to terminate removal proceedings if the NTA  has been filed with the court. Examples in the guidance include cases  involving sympathetic humanitarian circumstances like an alien with a  U.S. citizen child with a serious medical condition or disability, or an alien  or close family member who is undergoing treatment for a potentially life- threatening disease. However, this memo is directed at Chief Counsel  attorneys, who do not have the authority to initiate removal proceedings.  Instead, only supervisory DRO and OI officers can initiate removals, and  as a result the memo is not clearly applicable to them.
In addition, DHS, OI, DRO, and OPLA have also issued their own separate  memorandums that guide officers’ actions at different points of the  apprehension and removal process. Each memorandum is generally  directed to officers and attorneys under the respective ICE unit that issues  it, resulting in a number of memos distributed via a number of different  mechanisms within each ICE unit. These memorandums do not offer  comprehensive guidance on exercising discretion for aliens with  humanitarian circumstances or aliens who are not the primary targets of  ICE investigations. For example, OI issued a memo in May 2006, which  instructs officers to schedule appointments as a last resort for juvenile  aliens, elderly aliens, or aliens with health conditions to be processed at a  later date, rather than apprehend these aliens at the time of the encounter  or mail them an NTA. This guidance addresses important humanitarian  issues, but it is only directed to ICE officers who are responding to calls  from local law enforcement agencies. Furthermore, it does not define or  fully delineate circumstances that might constitute “last resort.” Another  memo issued by DHS in October 2004 provides officers and supervisors  with flexibility on detaining aliens (who are not subject to mandatory  detention) depending on the circumstances of the case, such as available  bed space. However, this memo does not offer specific guidance on  determining detention for aliens with humanitarian circumstances or  aliens who are not primary targets of ICE investigations.
In addition to ICE field operational manuals and various memorandums,  an OI headquarters official told us that ICE has recently instituted a  worksite enforcement operational guidebook to assist in the proper  planning, execution, and reporting of worksite enforcement operations.  Our review of this guidebook showed that it discusses, among other  things, operational planning and coordination, including instructions on  reporting requirements at the arrest site and working with other ICE units,  like DRO.  However, although ICE plans to regularly update its worksite  enforcement operational guidebook based on lessons learned from past  worksite operations, the current guidebook that ICE provided us in August  2007 does not include any guidance about how officers should factor  humanitarian issues into their decision making during the apprehension  and removal process. Finally, in our review of the worksite enforcement  operational guidebook, we did not find guidance to inform officers’  exercise of discretion on whom to stop, question, and arrest when  initiating the removal process—guidance that was also lacking in the  various operational manuals and memorandums.
In our review of documents from 26 OI field offices, we also noted that  only 3 of these field offices have developed local guidance to guide  officers’ discretion in the initial phases of the apprehension and removal  process. However, the local guidance we reviewed is not comprehensive  because the 3 offices do not have guidance that covers the use of  discretion throughout the phases of the alien apprehension and removal  process when officers can exercise discretion. For example, 1 of the 3  offices has guidance on scheduling appointments for future processing for  aliens with humanitarian concerns. Another office has guidance that  covers factors to consider when exercising discretion for cases involving  humanitarian issues as well as guidance on deciding whether to detain  aliens who are not investigation targets.
section_title: Current ICE Operations Present a Need for Guidance on Humanitarian Issues and Aliens Who Are Not ICE Targets
paragraphs: ICE has recently expanded its worksite enforcement and fugitive  operations, increasing the probability that officers in the field will have to  exercise discretion in their encounters with aliens who present  humanitarian issues or aliens who were not the targets of their  investigations—particularly noncriminal aliens. With these expanded  operations, the need for up to date and comprehensive guidance to reduce  the risk of improper decision making becomes increasingly important.  According to ICE data, in fiscal year 2006, ICE made, through its worksite  enforcement operations, 716 criminal arrests, which include aliens subject  to removal who are charged with criminal violations, and 3,667  administrative arrests, which refer to alien workers who are unlawfully  present in the United States but have not been charged with criminal  violations. These data show a sharp increase from fiscal year 2005, as  noted in figure 2. Through July 2007 of fiscal year 2007, ICE made 742  criminal arrests and 3,651 administrative arrests in its worksite operations;  these arrests surpassed the combined arrests for worksite enforcement  operations from fiscal year 2002 to fiscal year 2005. According to a senior  ICE headquarters official, from fiscal year 2003 through the third quarter  of fiscal year 2007, ICE has also experienced over a six-fold increase in the  number of new officers dedicated to worksite enforcement operations,  many of whom are temporarily assigned to worksite operations.
ICE reported that it has also expanded fugitive operations and plans to  increase the number of fugitive operation teams from 18 in 2006 to 75 by  the end of fiscal year 2007. Annual performance goals for each of these  teams call for 1,000 apprehensions per team. As of April 27, 2007, ICE  officers had arrested 17,321 aliens through its fugitive operation teams in  fiscal year 2007, a 118 percent increase in arrests since fiscal year 2005.
ICE’s expanding worksite enforcement and fugitive operations both  present officers with circumstances that could require the use of  discretion, specifically cases that involve aliens with humanitarian issues  or aliens who are not ICE targets. Expanded fugitive operations may  increase the number of encounters that officers have with removable  aliens who are not the primary targets or priorities of ICE investigations.  For cases involving these aliens, additional guidance could provide ICE  with better assurance that its officers are equipped to exercise discretion  and prioritize enforcement activities appropriately.
In large-scale worksite enforcement operations, officers have encountered  numerous aliens who have presented humanitarian issues. For this type of  case, comprehensive guidance on how to weigh relevant aspects of aliens’  circumstances or humanitarian factors would provide ICE with enhanced  assurance that officers are best equipped to appropriately determine  whether aliens should be apprehended, how they should be charged, and  whether they should be detained.
A recent large-scale worksite enforcement operation in Massachusetts  highlights the importance of having comprehensive and up to date  guidance to help inform officers’ decision making when they encounter  aliens with humanitarian issues. In this operation, ICE officers  encountered aliens who had humanitarian issues, including aliens who  were primary caretakers of children and had to assess the totality of the  circumstances in numerous cases, in real time, to decide how to handle  each case in coordination with other entities, such as social service  agencies, state government, and local law enforcement. ICE issued a fact  sheet about this operation on its external Web site that discussed  difficulties in coordinating and communicating with these entities on  issues of operational plans, detention space, access to detainees, and  information about arrestees. The fact sheet noted that ICE arrested 362  removable aliens and transported over 200 of these aliens to detention  facilities in Texas due to a lack of bed space in Massachusetts. In addition,  60 aliens were initially released during administrative processing at the  time of the operation for child welfare or family health reasons, and  additional aliens were released later for these reasons. According to ICE  officials, another concern ICE officers face as they attempt to exercise  discretion is that these officers encounter aliens who sometimes do not  divulge their status as sole caregivers for children. Complex environments  like the one described here demonstrate the need for up to date and  comprehensive guidance that supports ICE’s operational objectives and  use government resources in the most effective and efficient manner.
section_title: No Mechanism Is in Place to Help Ensure Officers Consistently Have Necessary Information Regarding Legal Developments
paragraphs: Internal control standards state that effective communications should  occur in a broad sense with information flowing down, across, and up the  organization. This includes communicating information in a form and  within a time frame that enables officials in carrying out their duties. In  carrying out their duties, ICE officers require information on relevant legal  developments—such as court decisions modifying existing interpretations  of immigration laws—to help inform their decision making regarding  removal dispositions (e.g., NTA or voluntary departure). However, ICE has  not instituted a mechanism to ensure that legal developments are  consistently disseminated to ICE officers across all field offices. For  example, officers at only two DRO field offices and one OI field office we  visited received current information on legal developments from their  Chief Counsel Office, which is responsible for disseminating this  information, while others did not receive such information at all or did not  receive it when they needed it for case processing. In addition, officers at  two of the seven OI field offices we visited expressed a need for more  information regarding legal developments to better inform their decision  making regarding removal dispositions. Officers at one OI field office told  us that there are occasions when they do not receive the necessary legal  guidance until they have already processed a case. Chief Counsel offices  independently decide when and what information to disseminate  regarding legal developments. Officers at seven DRO and six OI field  offices we visited told us that they can consult Chief Counsel attorneys to  seek guidance on legal issues. Although relying on Chief Counsel field  offices to disseminate information and advise officers on legal issues can  help officers when making decisions, without a formalized mechanism to  consistently disseminate information that officers can use when they  process cases, officers might not receive information necessary to make  sound removal decisions that comply with the most recent legal  developments.
section_title: ICE Has Supervisory Review and an Inspection Program to Monitor Removal Operations but Lacks a Means to Analyze Information Specific to the Exercise of Discretion across All Field Offices
paragraphs: ICE has two control mechanisms in place to monitor its removal  operations—established supervisory review practices and procedures and  an inspection program. However, ICE does not have a mechanism to allow  it to analyze information specific to the exercise of discretion. Internal  control standards advise agencies to design internal controls to ensure  that ongoing monitoring occurs in the course of normal operations. This  monitoring includes regular management and supervisory activities,  comparisons, reconciliations, and other actions people take in performing  their duties. ICE relies primarily on the judgment of experienced field  officers and supervisory reviews to provide assurance that officers’  decision making complies with established policies and procedures. In  addition to supervisory reviews, ICE has recently taken steps to institute  an inspection program designed to oversee field offices’ compliance with  established policies and procedures. However, neither supervisory reviews  nor ICE’s newly instituted inspection program offers a mechanism for  management to collect and analyze information specific to officers’  exercise of discretion in alien apprehension and removal decisions across  all field offices. The ability to collect and analyze data about the exercise  of discretion across field offices could provide ICE with additional  assurance that it can identify and respond to areas that may require some  type of corrective action. Moreover, without these data and analyses, ICE  is not positioned to compile and communicate lessons learned to help  support officers’ decision making capacity.
subsections: section_title: Supervisory Reviews Serve as Primary Control over Officer Decision Making
paragraphs: One way for agencies to help ensure that ongoing monitoring occurs in the  course of normal operations is to design appropriate supervision to help  provide oversight of internal controls. Consistent with this activity, ICE  policy requires supervisory review of officer decisions on a case-by-case  basis to ensure that officers’ decisions comply with established policies  and procedures for alien apprehension and removal decisions.
ICE officers are to document the specific immigration charges lodged  against an alien, as well as the custody decision made by officers, on a  standardized form. Throughout the alien apprehension and removal  process, supervisors are responsible for reviewing and authorizing  decisions made by officers. For example, when officers are determining  whether to detain or release an alien from custody, ICE memorandums  state that supervisors must approve an officer’s decision. In addition,  according to ICE headquarters officials, supervisors at both DRO and OI  field offices are to review officers’ apprehension and removal decisions to  ensure that officers use the most appropriate removal disposition and to  ensure that officers’ decisions comply with legal requirements, policies,  and procedures. Headquarters officials also told us that supervisors are  responsible for approving and signing off on decisions to grant voluntary  departure and issue NTAs and other removal dispositions issued by  officers.
Officials at all seven DRO and seven OI field offices we visited also told us  that supervisors are responsible for reviewing instances when officers  have exercised discretion, such as when encountering aliens with  humanitarian issues. Officers at field offices we visited also noted that  they consult with experienced officers or supervisors when making these  decisions and that operations are typically conducted by teams where  officers’ collective knowledge is used to make discretionary decisions.  Table 1 outlines the types of reviews conducted by experienced officers,  supervisors, and managers at DRO and OI field offices.
section_title: ICE Has Instituted an Inspection Program to Help Monitor Operations, Including Alien Apprehensions and Removals for its OI Field Offices, and Plans a Similar Program for DRO Field Offices
paragraphs: ICE’s Office of Professional Responsibility instituted an inspection  program for OI field offices in July 2007, consistent with internal control  standards for monitoring operations by designing mechanisms for  identifying and communicating deficiencies to managers. According to  the headquarters official responsible for overseeing the inspection  program, ICE plans to implement a similar inspection program for DRO  field offices in the fall of 2007. According to this official, the inspection  program is designed to determine whether field offices are complying with  the established policies and procedures selected for review. The  inspection program consists of two areas: (1) an annual self-inspection  process under which all field offices must respond to a Web-based  questionnaire covering operational activities and (2) a field inspection  program under which all OI and DRO field offices are to be inspected by  headquarters officials at least once during a 4-year cycle. In instances  where field offices are not compliant, field officials must develop a plan of  action to address discrepancies that are identified. For OI offices,  examples of areas that are to be reviewed include procedures for  processing aliens, as well as methods for ensuring that operational plans  are prepared and approved before arrests are conducted. For DRO field  offices, areas that are to be reviewed, among other things, include  compliance with procedures to ensure that aliens are served with a copy  of an NTA, as well as procedures for completing and obtaining approval  for operational plans in advance of fugitive operations. Our review of the  self-inspection questionnaires and our discussion with the program  manager showed that the inspection program is not designed to analyze  information on officer decision making regarding alien apprehensions and  removals.
section_title: ICE Lacks a Mechanism to Collect and Analyze Data Specific to the Exercise of Discretion across All Field Offices
paragraphs: An important purpose of internal control monitoring is to allow agencies  to assess the quality of performance over time. Specifically, internal  control standards recommend that managers compare trends in actual  performance to expected results throughout the organization in order to  identify any areas that may require corrective action to help ensure  operations support operational objectives.  Although, ICE has some  controls in place to monitor operations related to alien apprehensions and  removals, neither supervisory review nor its inspection program offer  managers information to specifically analyze officer decision making for  trends across the 75 OI, DRO and Chief Counsel field offices that might  indicate the need for a corrective action, such as additional training or  clarification of procedures, or that might reveal best practices for  achieving desired outcomes. ICE does not have a mechanism for collecting  and analyzing data on officers’ exercise of discretion in determining what  removal processing option to employ, such as officers’ basis for  scheduling an appointment to process an alien at a later date for aliens  who present humanitarian circumstances or the frequency of such actions.  Additionally, ICE does not collect and analyze the actions taken by  officers (e.g., scheduling an appointment, or mailing an NTA) in  addressing aliens presenting humanitarian issues. Such information could  be used by managers to identify trends in actions taken by officers to  address aliens with humanitarian issues that could in turn be used to make  any necessary modifications to guidance, policies or training.
ICE policy outlines a mechanism to capture and analyze information  regarding officers’ discretionary decisions made as part of worksite  enforcement operations, but this inspection mechanism has not been used  consistently. ICE officials told us that, as part of worksite enforcement  operations, its officers make decisions in the field on a case-by-case basis  in a time-constrained environment. In recent worksite operations, officers  have apprehended thousands of aliens in operations conducted in various  cities across the nation. Our review of ICE’s worksite enforcement training  curriculum and OI’s field operational manual showed that ICE policy  outlines a key internal control—after-action reports—which are to  capture, among other things, information on significant or unusual  incidents or circumstances that may have occurred during an operation; a  listing of the number of aliens arrested, reasons for the release of detained  or arrested aliens, and any allegations of civil rights violations or other  complaints. However, a senior headquarters official responsible for  overseeing OI’s worksite enforcement division told us that although after- action reports are still outlined as requirements in OI’s training curriculum  (dated April 2007) and in the OI field operational manual, ICE has  eliminated this requirement. According to OI headquarters officials, prior  to the reporting requirement change, after-action reports had only been  prepared for one worksite enforcement operation, which was conducted  in 2006, since ICE was created. The senior headquarters official told us  that, in lieu of after action reports, OI intends to collect information on  lessons learned as part of its worksite enforcement guidebook. Our review  of the guidebook provided to us by ICE showed that the guidebook did not  yet reflect lessons learned.
The scale and complexity of recent ICE worksite operations, such as an  operation in Massachusetts involving difficulties coordinating and  communicating with social service agencies, state government, and local  law enforcement on issues of operational plans, detention space, access to  detainees, and information about aliens who were apprehended, highlight  the need for ICE to be able to learn from past experiences, thereby  providing ICE officers with a richer knowledge base to inform their  decision making under difficult circumstances. Moreover, since ICE has  experienced a more than six-fold increase (between fiscal year 2003 and  the third quarter of fiscal year 2007) in the number of new officers  participating in worksite enforcement operations, more officers are  making decisions and exercising discretion in these complex  environments. Having a mechanism that provides ICE with information  regarding its enforcement operations across all field offices would help  identify areas needing corrective action regarding officer decision making.  For example, having comprehensive information on factors considered by  officers and actions taken by them (e.g., scheduling an appointment for  later processing, or mailing an NTA) to address aliens with humanitarian  issues could lead to revised policies and procedures. In addition, such a  mechanism could help ICE protect its credibility and integrity against  allegations of alien mistreatment by having readily available information to  ensure that officer decision making complies with established policies and  procedures. Without a mechanism to catalog and collect information— agencywide—on the exercise of discretion, ICE managers cannot analyze  trends to provide additional assurance that officer decision making  complies with established ICE policies and operational objectives, nor is  ICE positioned to refine operational approaches based on a review of best  practices across field offices.
ICE relies on two databases to document officers’ decisions regarding  alien apprehensions: (1) the Enforcement Case Tracking System  (ENFORCE), which is primarily used to collect alien biographical  information and removal option employed, such as voluntary departure or  an NTA, and (2) the Deportable Alien Control System (DACS), which is  used to track the location of detained aliens, as well as the status of aliens’  immigration court hearings. However, headquarters officials told us that  the details of discretionary decisions (e.g., factors considered in deciding  whether to apprehend an alien or detain an alien, based on humanitarian  reasons) are not recorded in ENFORCE and DACS. Officials explained  that officers may record information explaining their decisions in each of  these systems’ narrative sections. However, according to officials,  inputting this information is not a requirement, and information recorded  by officers in the narrative sections of these databases is not analyzed by  field managers or headquarters officials.
Headquarters officials responsible for overseeing ENFORCE and DACS  told us that ICE plans to update these systems to provide other  capabilities. A headquarters official responsible for overseeing ENFORCE  told us that ICE plans to integrate aspects of ENFORCE with another  system—the Treasury Enforcement Communications System (TECS)— used by officers to track criminal investigations. According to this official,  the proposed changes will allow officers to more easily access information  pertaining to apprehended aliens and associated criminal investigations. In  addition, a headquarters official responsible for overseeing the DACS  system told us that ICE is piloting a program to merge DACS with  ENFORCE, with the goal of creating one case management system for  collecting information on alien apprehensions and for tracking the  progress of alien removal proceedings. However, it is unclear whether  these plans and the resulting systems would provide information ICE  managers need to monitor and analyze officer decision making across all  field offices.
The DHS Office of Inspector General (OIG) has recognized the need to  upgrade ICE data systems so that management has reliable data to make  programmatic decisions and assess performance with regard to detention  and removal programs, including identifying trends associated with  underlying decisions made during the alien removal process. In April 2006,  the OIG reported that DACS lacks the ability to readily provide DRO  management with the data analysis capabilities to manage the detention  and removal program in an efficient and effective manner because (1) the  information stored in DACS was not always accurate or up to date and (2)  DRO could not readily query DACS to obtain statistical reports on  detentions and removals. The OIG stated that the lack of reliable program  analysis capabilities could detrimentally affect DRO’s ability to identify  emerging trends and identify resource needs. According to the OIG, this  data system should, at a minimum, be able to provide quality immigration- related data on various factors including, among other things, the rationale  underlying DRO’s decision to release an alien from detention or not to  detain individual aliens. OIG recommended that ICE expedite efforts to  develop and implement a system capable of meeting data collection and  analysis needs relating to detention and removal, including a plan showing  milestone dates, funding requirements, and progress toward completing  the project. DHS and ICE concurred with the OIG’s recommendation and  said that it would prepare a project plan for developing and deploying the  system in an expedited manner. Although DHS and ICE said that the new  system is to allow users to capture, search, and review information in  specific areas, including information on detention and removal case  details, the response was not specific about whether it would contain  information on the rationale for making these decisions. Having  information on officers’ exercise of discretion, including their rationale for  making decisions, would provide ICE managers a basis for identifying  potential problems, analyzing trends, and compiling best practices.
ICE headquarters officials told us that collecting and managing data that  detail decisions made by officers could be costly. However, ICE has not  evaluated the costs or alternatives for creating a mechanism capable of  providing ICE with usable information that it can analyze to identify trends  in the exercise of discretion. For example, ICE has not considered the  costs and benefits of such a mechanism in connection with planned or  ongoing information system updates. Until ICE assesses costs and  alternatives for collecting these data, it will not be in a good position to  select and implement an approach that will provide ICE assurance that it  can identify any best practices that should be reinforced or areas that  might require corrective actions—by, for example, modifying policies,  procedures, or training. Given that 75 field offices are involved in the alien  apprehension and removal process and that oversight of these offices lies  with three ICE units, a comprehensive mechanism for reviewing officers’  decision making could provide ICE with meaningful information to  promote the appropriate use of discretion, identify best practices, and  analyze any significant differences across field offices in order to take  appropriate action.
section_title: Conclusions
paragraphs: Appropriate exercise of discretion during the alien removal process is an  essential part of ICE’s law enforcement efforts as it conducts operations in  complex environments and with finite resources to identify, locate, and  remove many of the estimated 12 million aliens subject to removal from  the United States. Internal controls, like training, guidance, and monitoring  that are designed to help ICE ensure that its officers are well equipped to  consistently make decisions that support its operational objectives, are  crucial for ICE to help provide assurance that its officers exercise  discretion in a manner that protects the agency’s integrity, advances its  mission, and provides the greatest value to the nation. Although ICE has  taken steps in the area of training to develop and retain officer skills, ICE’s  guidance does not comprehensively address key aspects of the alien  apprehension and removal process, such as dealing with humanitarian  issues and aliens who are not investigation targets. In light of the  increased number of circumstances that might call for the exercise of  discretion in ICE’s expanded enforcement efforts, comprehensive  guidance—including factors that should be considered when officers  make apprehension, charging, and detention determinations for aliens  with humanitarian issues—to better support officers’ decision making to  provide ICE with enhanced assurance that discretion is exercised  appropriately. Without established time frames for updating guidance, ICE  lacks a means to track progress and ensure accountability for  accomplishing the updates. Moreover, developing a mechanism for  consistently disseminating legal information would help to ensure that  officers have the most recent information on legal developments that may  affect the decisions they make. Finally, collecting information on officers’  exercise of discretion could provide ICE with enhanced assurance that  officers and supervisors across field offices are making decisions that  reflect the agency’s operational objectives regarding alien apprehensions  and removals and could also help managers identify best practices or  areas that may require management action. Although ICE officials have  noted that collecting and managing data about the exercise of discretion  could be costly, ICE has not evaluated the costs of and alternatives for  collecting such information. For instance, as ICE updates the systems it  uses to manage other operational data, it could consider the costs and  benefits of integrating this data collection function as part of other  planned system redesigns. However, without an assessment of the costs  and alternatives for collecting data on officer decision making, whether in  association with planned system updates or not, ICE is not in the best  position to select and implement an approach that provides ICE assurance  that it can identify best practices to support decision making capacity or,  more importantly, recurrent or systematic issues that could jeopardize its  mission.
section_title: Recommendations for Executive Action
paragraphs: To enhance ICE’s ability to inform and monitor its officers’ use of  discretion in alien apprehensions and removals, we recommend the  Secretary of Homeland Security direct the Assistant Secretary of ICE to  take the following three actions:    develop time frames for updating existing policies, guidelines, and  procedures for alien apprehension and removals and include in the  updates factors that should be considered when officers make  apprehension, charging, and detention determinations for aliens with  humanitarian issues;    develop a mechanism to help ensure that officers are consistently  provided with updates regarding legal developments necessary for  making alien apprehension and removal decisions;    evaluate the costs and alternatives of developing a reporting  mechanism by which ICE senior managers can analyze trends in the  use of discretion to help identify areas that may require management  actions—such as changes to guidance, procedures, and training.
section_title: Agency Comments and Our Evaluation
paragraphs: We requested comments on a draft of this report from the Secretary of  Homeland Security.  In an October 4, 2007 letter, DHS agreed with our  three recommendations and discussed the actions ICE plans to take to  address them, which are summarized below and included in their entirety  in appendix II.
With regard to our recommendation that ICE develop time frames for  updating existing policies, including factors that should be considered  when making apprehension, charging, and detention decisions, DHS said  that ICE would reevaluate and republish all existing policies, guidelines,  and procedures pertaining to the exercise of discretion during calendar  year 2008.  With regard to our recommendation that ICE evaluate the costs  and alternatives of developing a mechanism by which to analyze trends in  the use of discretion, DHS said that ICE anticipates initiating this  evaluation by December 1, 2007.
With regard to our recommendation to develop a mechanism to help  ensure that officers are consistently provided with updates regarding legal  developments, DHS explained that ICE believes that policies are in place  to address the needs of the operational components for up to date legal  guidance, and that officers rely primarily on local Chief Counsel Offices  for information on legal developments.  DHS said that this localized  approach reflects the fact that significant developments in case law often  result from decisions of the 12 United States Courts of Appeal and that  such decisions are often inconsistent and only have application within the  geographic boundaries where they arise.  Nonetheless, DHS commented  that ICE recognizes that consistency in the dissemination of legal updates  is of great importance to agents and officers and said that ICE will look to  develop best practices to ensure the latest legal updates are disseminated  to agents and officers through each Chief Counsel’s office.  We believe ICE  identification and implementation of best practices would be important in  helping ensure that updates on legal developments are consistently  provided to officers.
We are sending copies of this report to selected congressional committees,  the Secretary of Homeland Security, the Assistant Secretary of U.S.  Immigration and Customs Enforcement, the Director of the Office of  Management and Budget, and other interested parties. We will also make  copies available to others on request. In addition, the report will be  available on GAO’s Web site at http://www.gao.gov.
If you or your staff have any questions about this report or wish to discuss  them matter further, please contact me at (202) 512-8777 or  stanar@gao.gov. Contact points for our Offices of Congressional Relations  and Public Affairs may be found on the last page of this report. Major  contributors are listed in appendix III.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This review examined how Immigration and Customs Enforcement (ICE)  ensures that discretion is used in the most fair, reasoned, and efficient  manner.  Along these lines, we examined whether ICE has designed  internal controls to guide and monitor officers’ exercise of discretion  when making alien apprehension and removal decisions, consistent with  internal control standards for the federal government. Specifically, this  review addresses the following three questions:  1.  When and how do ICE officers and attorneys exercise discretion  during the alien apprehension and removal process?  2.  What internal controls has ICE designed to guide officer decision  making to enhance its assurance that the exercise of discretion  supports its operational objectives?  3.  What internal controls has ICE designed to oversee and monitor  officer decision making during the alien apprehension and removal  process to enhance ICE’s assurance that the exercise of discretion  supports its operational objectives?
To address these objectives, we obtained and analyzed information at  ICE’s Office of Investigations (OI), Office of Detention and Removal  Operations (DRO), and the Office of the Principal Legal Advisor (OPLA)  within the Department of Homeland Security (DHS) in Washington, D.C.  We also carried out work at 14 ICE field offices—seven OI and seven DRO  field offices—located in seven cities throughout the United States:  Chicago, Detroit, Los Angeles, New York, Philadelphia, Phoenix, and San  Diego and seven ICE Chief Counsel Offices (which serve as OPLA’s field  offices) at these same locations. We selected these locations considering  field office size, ICE data on alien apprehensions, and geographic  dispersion. Regarding alien apprehensions, about 40 percent of all ICE  Office of Investigations apprehensions during fiscal year 2006 were made  by the seven OI offices selected for our review. As we did not select a  probability sample of field offices or Chief Counsels’ offices to review, the  results of our work at these locations cannot be projected to field offices  nationwide.
To identify when and how officers and attorneys exercise discretion  during the alien apprehension and removal process, we reviewed relevant  laws and regulations as well as applicable policies, memorandums,  operational manuals, and training materials developed by OI, DRO, and  OPLA headquarters offices. We also spoke with headquarters officials in  the OI, DRO, and OPLA operational divisions regarding the exercise of  discretion in the alien apprehension and removal process. At each of the  field locations we visited, we collected and reviewed available locally  developed field guidance, memorandums, and training materials  applicable to the exercise of discretion during the apprehension and  removal process. We also conducted small group interviews with officers,  supervisors, and managers at the 14 OI and DRO field offices we selected  as part of our nonprobability sample to determine when and how officers  at those locations exercise discretion, and when and how officers are  expected to exercise discretion, during the alien apprehension and  removal process. In addition, we conducted small group interviews with  attorneys, supervisors, and managers at the 7 Chief Counsel offices we  visited to determine when and how attorneys exercise discretion, and  when and how they are expected to exercise discretion, once formal  removal proceedings have been initiated by OI and DRO officers. As we  did not select probability samples of ICE officers and attorneys,  supervisors, and managers to interview at the field offices we selected, the  results of these interviews may not represent the views of ICE officers and  attorneys and their supervisors and managers nationwide.
To address internal controls ICE has designed to guide officer decision  making, we reviewed field operational manuals, policy memorandums, and  training materials developed by OI, DRO, and OPLA headquarters offices.  We also requested locally developed written guidance and policies and  procedures regarding alien apprehension and removal procedures from all  DRO, OI and Chief Counsel field offices. We received and reviewed locally  developed guidance from 13 of OI’s 26 field offices and 12 of Chief  Counsel’s 26 field offices. The purpose of this review was to identify the  range of policies and guidance developed by field units that we did not  capture as part of our nonprobability sample of ICE field offices. We did  not receive locally developed guidance from DRO’s 23 field offices, as  DRO headquarters officials told us that DRO field offices do not rely on  locally developed guidance and instead rely on national policies and  memorandums. As part of our work at the ICE field offices we visited, we  also discussed and identified guidance and training provided to officers  and attorneys with regard to the guidance and information available to  them when exercising discretion during the apprehension and removal  process, including guidance about nontargeted aliens, humanitarian  issues, and updates on legal developments. We then compared the national  and local guidance, memorandums, and training materials in place with  internal control standards to determine whether these controls were  consistent with the standards. In addition, we met with headquarters  officials responsible for the development of policy and training of field  unit operations for OI and DRO and we interviewed OPLA officials  responsible for developing policy and training for Chief Counsel Offices to  discern their role in developing and providing guidance and information to  ICE officers, attorneys, supervisors, and managers involved in the alien  apprehension and removal process.
To address what internal controls ICE has designed to oversee and  monitor officer decision making during the alien apprehension and  removal process, we reviewed relevant laws, regulations, and field  operational manuals. We also interviewed OI, DRO and OPLA  headquarters officials, field officers, and field attorneys to identify the  types of oversight that are in place. We examined what controls were in  place to provide assurance that removal decisions are consistent with  established policies, procedures, and guidelines across field offices, and  examined whether these controls were designed to be consistent with the  internal control standards. We did not test ICE controls in place as part of  our review. We also interviewed headquarters officials responsible for  overseeing ICE’s enforcement operations to examine controls in place to  monitor enforcement activities. We met with ICE headquarters officials  responsible for overseeing ICE databases containing information pertinent  to alien apprehension and removal outcomes, and we inquired about  information collected in these databases regarding officer decision  making, including cases involving humanitarian issues and cases involving  aliens who are not targets of ICE investigations. We also interviewed ICE  officers, supervisors, and management personnel at the ICE field offices  we visited to identify the types of supervisory reviews and approvals  required for decisions made by ICE officers and attorneys and the  documentation to be reviewed and approved by supervisors in regard to  these decisions. We reviewed data on alien apprehensions for worksite  enforcement operations, for fiscal year 2002 through fiscal year 2007, to  identify trends in ICE’s expanded enforcement efforts. We also reviewed  data on alien apprehensions resulting from fugitive operations. To  determine the reliability of the data, we interviewed headquarters officials  responsible for overseeing and verifying the data, reviewed existing  documentation regarding the data, and interviewed headquarters officials  responsible for tracking statistics pertaining to the data.
We conducted our work between August 2006 and September 2007 in  accordance with generally accepted government auditing standards.
section_title: Appendix II: Comments from the Department of Homeland Security
section_title: Appendix III: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the above, John F. Mortin, Assistant Director;   Teresa Abruzzo; Joel Aldape; Frances Cook; Katherine Davis;  Kathryn Godfrey; Wilfred Holloway; and Ryan Vaughan made key  contributions to this report.