Illegal Aliens: Changes in the Process of Denying Aliens Entry Into the United States
Published: 1998-03-31T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Pursuant to a legislative requirement, GAO reviewed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, focusing on: (1) how the expedited removal process and the Immigration and Naturalization Service (INS) procedures to implement it are different from the process and procedures used to exclude aliens before the act; (2) the implementation and results of the process for making credible fear determinations during the 7 months following April 1, 1997; and (3) the mechanisms that INS established to monitor expedited removals and credible fear determinations and to further improve these processes.
section_title: What GAO Found
paragraphs: GAO noted that: (1) two major differences between the exclusion process used before the act and its expedited removal process are INS inspectors' authority to issue the expedited removal order and the aliens' limited right of review of that order; (2) other changes included an increased penalty for inadmissible aliens, including those subject to expedited removal, and a more structured inspection process for expedited removal than for exclusion; (3) at the five locations GAO visited, INS estimated that the amount of time it took inspectors to complete the expedited removal process was greater than the amount of time used to complete the steps required of INS inspectors in the previous exclusion process; (4) this increased time by INS inspectors could be offset by reductions in time by immigration judges who no longer make these decisions; (5) during the first 7 months that the expedited removal process was in place, 29,170 aliens attempted to enter the country and were placed in expedited removal; (6) INS inspectors referred 1,396 of these aliens to asylum officers for credible fear interviews; (7) as of December 1997, almost all of the approximately 27,800 remaining aliens had been removed from the United States; (8) at the five locations it visited, GAO reviewed documentation in randomly selected case files of aliens subject to expedited removal; (9) the results of this review showed that between an estimated 80 percent and 100 percent of the time INS inspectors and supervisors documented that they followed certain INS procedures; (10) these documented procedures included activities such as supervisors' review of inspectors' removal orders and inspectors' asking aliens specific questions about their fear of being returned to their home country or country of last residence; (11) of the 1,396 aliens referred to asylum officers for credible fear determinations, asylum officers completed interviews with 1,108 and found that 79 percent had a credible fear; (12) immigration judges received 198 cases to review asylum officers' negative credible fear determinations between April 1 and October 31, 1997; (13) the judges affirmed the asylum officers' determinations in 83 percent of these cases; (14) INS has developed or is in the process of developing mechanisms to monitor the expedited removal procedures, including the credible fear determinations; and (15) INS has made changes to its processes on the basis of concerns raised by these internal reviewers and outside organizations.

section_title: Letter
paragraphs: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was enacted September 30, 1996. Among other things, this act included new provisions establishing an expedited removal process for dealing with aliens who attempt to enter the United States by engaging in fraud or misrepresentation (e.g., falsely claiming to be a U.S. citizen or misrepresenting a material fact) or who arrive with fraudulent, improper, or no documents (e.g., visa or passport). The new process went into effect on April 1, 1997, and reduces aliens’ rights to seek review of an inadmissibility decision. As part of this new process, aliens who are subject to expedited removal and assert a fear of being returned to their home country or country of last residence are to be provided a credible fear interview. The purpose of this interview is to identify aliens whose asylum claims have a significant possibility of succeeding.
This report addresses (1) how the expedited removal process and Immigration and Naturalization Service (INS) procedures to implement it are different from the process and procedures used to exclude aliens before the 1996 Act; (2) the implementation and results of the process for making credible fear determinations during the 7 months following April 1, 1997; and (3) the mechanisms that INS established to monitor expedited removals and credible fear determinations and to further improve these processes. It also provides information on INS’ and immigration judges’ estimates of costs to implement the expedited removal process and the time required to adjudicate expedited removal cases and credible fear determinations.
Copies of this report are being sent to the Attorney General; the Director, Office of Management and Budget; and other interested parties. Major contributors to this report are listed in appendix IX. If you need any additional information or have any questions, please contact me on (202) 512-8777.
subsections: section_title: Introduction
paragraphs: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the 1996 Act), which amended the Immigration and Nationality Act (INA),as amended, was enacted September 30, 1996 (P.L. 104-208). Among other things, the 1996 Act included a new provision, which is called expedited removal, for dealing with aliens who attempt to enter the United States by engaging in fraud or misrepresentation (e.g., falsely claiming to be a U.S. citizen or misrepresenting a material fact) or who arrive with fraudulent, improper, or no documents (e.g., visa or passport). The expedited removal provision, which went into effect on April 1, 1997, reduces an alien’s right to seek review of a determination of inadmissibility decision.
In the years preceding the passage of the 1996 Act, concerns were raised about the difficulty of preventing illegal aliens from entering the United States and the difficulty of identifying and removing the illegal aliens once they entered this country. The expedited removal process was designed to prevent aliens who attempt to enter the United States by engaging in fraud or misrepresentation or who arrive without proper documents from entering this country at our ports of entry.
Several legal services organizations and individual aliens have challenged the constitutionality of the expedited removal process established by the 1996 Act (see app. I for a discussion of these court cases). These suits claim, among other things, that the expedited removal process denies substantive and procedural rights to asylum seekers; creates an unreasonably high risk of erroneous removals of citizens, lawful permanent residents, and other holders of valid visas; denies the organizations’ First Amendment right of access to aliens applying for entry into the United States; and may not be correctly applied to unaccompanied minors. As of March 15, 1998, these cases were pending in federal court.
The Immigration and Naturalization Service (INS) and immigration judges have roles in implementing the provisions of the 1996 Act relating to the expedited removal of aliens. INS’ responsibilities include (1) inspecting aliens to determine their admissibility and (2) reviewing the basis and credibility of aliens who are subject to expedited removal but who claim a fear of persecution if returned to their home country or country of last residence. Aliens can request that immigration judges review INS’ negative credible fear determinations. Immigration judges, who report to the Chief Immigration Judge, are in the Executive Office for Immigration Review (EOIR), within the Department of Justice. The immigration judges are located in immigration courts throughout the country.
subsections: section_title: Aliens Attempting to Enter the United States at Ports of Entry
paragraphs: Before the 1996 Act, aliens who wanted to be admitted to the United States at a port of entry were required to establish admissibility to an inspector. This requirement remains applicable under the 1996 Act. INS has about 4,500 inspectors and about 260 staffed ports of entry. Generally, aliens provide inspectors with documents that show they are authorized to enter this country. At this primary inspection, the INS inspector either permits the aliens to enter or sends the aliens for a more detailed review of their documents or further questioning by another INS inspector. The more detailed review is called secondary inspection. In deciding whether to admit the alien, the INS inspector is to review the alien’s documents for accuracy and validity and check INS’ and other agencies’ databases for any information that could affect the alien’s admissibility. After reviewing the alien’s documents and interviewing the alien at the secondary inspection, the inspector may either admit or deny admission to the alien or take other discretionary action. INS can prohibit aliens from entering the United States for a number of reasons (e.g., criminal activity or failing to have a valid visa, passport, or other required documents). Inspectors have discretion to permit aliens to (1) enter the United States under limited circumstances even though they do not meet the requirements for entry or (2) withdraw their applications for admission and depart.
subsections: section_title: Exclusion Process Before Implementation of the 1996 Act
paragraphs: Before the April 1, 1997, enactment of the expedited removal process, the INA authorized the Attorney General to exclude certain aliens from admission into the United States. Aliens whom inspectors determined to be excludable from this country generally were allowed either to (1) return voluntarily to the country from which they came or (2) appear for an exclusion hearing before an immigration judge. During this hearing, aliens who said they had a fear of persecution if they were returned to their home country could file an application for asylum. The immigration judges’ decisions could be appealed to EOIR’s Board of Immigration Appeals (BIA), which is a quasi-judicial body that hears appeals of INS’ and immigration judges’ decisions. Furthermore, the alien could appeal BIA’s decision through the federal court system. The scope of the federal court’s review was limited to whether the government followed established procedures. Aliens who were excluded from entering the United States under this process generally were barred from reentering this country for 1 year. The exclusion process is discussed in more detail in chapter 2.
From April 1, 1996, to October 31, 1996, the monthly average number of aliens who INS (1) inspected at U.S. ports of entry was about 27.1 million; (2) referred to secondary inspection was about 780,000; and (3) did not admit into this country was about 63,250.
section_title: Expedited Removal Process After Implementation of the 1996 Act
paragraphs: Under the 1996 Act, an INS inspector, instead of an immigration judge, can issue an expedited removal order to aliens who (1) are denied admission to the United States because they engage in fraud or misrepresentation or arrive without proper documents when attempting to enter this country and (2) do not express a fear of returning to their home country. INS is to remove the alien from this country. Aliens who are issued an expedited removal order generally are barred from reentering this country for 5 years.
The expedited removal provision also established a new process for aliens who express a fear of being returned to their home country and who are subject to expedited removal. Inspectors are to refer such aliens to INS asylum officers for an interview to determine whether the aliens have a credible fear of persecution or harm if returned to their home country. This is called a credible fear interview. The term “credible fear of persecution” is defined by statute as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under Section 208” of the INA.
INS has a cadre of about 400 asylum officers who are involved with the asylum process. About 300 of these officers have been trained to conduct credible fear interviews. INS has eight asylum offices nationwide. The expedited removal process is discussed in more detail in chapter 2, and the credible fear process is discussed further in chapter 3.
From April 1, 1997, to October 31, 1997, the monthly average number of aliens who INS (1) inspected at ports of entry was about 28.9 million;(2) referred to secondary inspection was about 608,000; and (3) did not admit was about 56,500.
section_title: Objectives, Scope, and Methodology
paragraphs: The 1996 Act requires us to study the implementation of the expedited removal process, including credible fear determinations, and report to the Senate and House Committees on the Judiciary. We address the following aspects of the exclusion and expedited removal processes in this report: how the expedited removal process and INS procedures to implement it are different from the process and procedures used to exclude aliens before the 1996 Act; the implementation and results of the process for making credible fear determinations during the 7 months following April 1, 1997; and the mechanisms that INS established to monitor expedited removals and credible fear determinations and to further improve these processes.
We also provide information on INS’ and EOIR’s estimates of costs to implement the expedited removal process and the time required to adjudicate expedited removal cases and credible fear determinations.
We did our work at INS and EOIR headquarters offices and INS field locations at five U.S. ports of entry—two land ports and three airports. These five locations had about 50 percent of the expedited removal cases during the first 7 months after the 1996 Act was implemented. We judgmentally selected these 5 of the about 260 staffed ports to include a large number of entries by aliens, geographically diverse areas, and the 2 major types of ports of entry (land ports and airports). We selected San Ysidro (CA), as a southern land port; Niagara Falls (NY), as a northern land port; and Miami International, Los Angeles International, and John Fitzgerald Kennedy International (JFK) Airports. According to INS, these ports were expected to have large volumes of expedited removal orders, and the airports were anticipated to have a large number of credible fear referrals. We discussed these selections with INS officials who said that the ports should provide us with a reasonable representation of its implementation of the new law. Although we visited the Niagara Falls land port, we included in some of our analyses, data for the entire Buffalo district, which includes the Niagara Falls land port.
We selected the three asylum offices at which we did our field work—New York, Miami, and Los Angeles—because they conducted credible fear interviews for four (Los Angeles, JFK, Miami, and San Ysidro) of the five ports we visited. The Newark (NJ) asylum office conducted credible fear interviews for the Buffalo District Office. Because Newark was not one of the five ports we included in our review, we decided not to increase our audit costs by adding another location. We did our fieldwork related to EOIR at four of the immigration courts—Wackenhut (New York City), Krome (Miami), San Pedro (Los Angeles), and El Centro (El Centro, CA)—which held reviews of negative credible fear determinations for aliens who attempted entry at the ports we visited. We selected these four courts because they were near the ports of entry included in our review.
We limited the data on removal of aliens before April 1, 1997, to the airports because INS did not maintain nationwide data on the reasons aliens were not admitted into the United States. However, the individual airports maintained data on the reasons for aliens’ inadmissibility into the country. Therefore, we analyzed the data for the Miami, Los Angeles, and JFK airports to determine the aliens’ dispositions.
To present disposition data on aliens who were subject to the expedited removal process since April 1, 1997, we obtained data from INS on aliens who were processed under expedited removal but were not referred for a credible fear interview, both nationwide and for the five ports in our study.
To develop data on inspectors’ completion of required forms, background information about the aliens, and the length of the expedited removal process from the day the alien attempted to enter the country to the day the alien was removed, we reviewed probability samples of 434 files for aliens who entered the expedited removal process but were not referred for a credible fear interview. This effort consisted of five separate reviews of individuals entering the country between May 1, 1997, and July 31, 1997, at the five locations we visited and individuals who were processed through the expedited removal process.
To obtain data on the time needed to adjudicate cases before and after expedited removal, we asked INS and EOIR officials to estimate the time required for different steps in the adjudication process, including credible fear determinations, for the locations included in our study.
To obtain estimates for the costs to INS and EOIR to implement the expedited removal process, including the credible fear determinations, we asked each agency to develop cost data.
To develop workload data related to the credible fear process that went into effect on April 1, 1997, INS provided nationwide data. These data included the number of credible fear interviews held and the results of those interviews. EOIR provided data from a nationwide database on the results of the negative credible fear reviews conducted by the immigration judges. Also, we reviewed the immigration judges’ worksheets, for all cases in which they vacated asylum officers’ negative credible fear determinations, for the period April 1, 1997, to August 31, 1997.
To determine, in part, whether it was documented that asylum officers followed certain credible fear determination processes, we reviewed all 84 files of negative credible fear determinations for the months of May through July, 1997.
In addition, during our field visits we observed inspectors processing 16 aliens through the expedited removal process, asylum officers conducting 9 credible fear interviews, and immigration judges holding 5 negative credible fear reviews in Miami, the only location where reviews were conducted at the time of our visit.
We also met and/or talked with various nongovernmental organizations (e.g., American Bar Association, Lawyers Committee for Human Rights, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Office of the United Nations High Commissioner for Refugees, Amnesty International, and American Civil Liberties Union) to discuss our methodology and to get input on the types of data we should collect through these observations and file reviews. Officials from these organizations provided information on their concerns about the expedited removal process, including credible fear determinations, and provided information about specific problems they said were encountered by aliens during the process.
To describe INS’ controls to monitor and oversee the expedited removal process, including credible fear determinations, we interviewed INS officials at headquarters and locations we visited and obtained data related to these activities.
More details on our objectives, scope, and methodology are in appendix II of this report. Also included in appendix II is a description of the databases we used and our efforts to assess these databases’ reliability.
We did our review from November 1996 to March 1998 in accordance with generally accepted government auditing standards.
section_title: Agency Comments
paragraphs: We provided a draft of this report to the Attorney General for review and comment. On March 16, 1998, we met with Department of Justice officials, including INS’ Director, International Affairs, to obtain Justice’s comments. Overall, the officials stated that the report was accurate and fair. They also provided technical comments, which have been incorporated in this report where appropriate.
section_title: The Exclusion and Expedited Removal Processes
paragraphs: The 1996 Act significantly changed INS’ authority over the removal of aliens requesting admission to the United States at ports of entry. Previously, aliens could have a hearing before an immigration judge and could appeal an immigration judge’s decision ordering their exclusion from this country through BIA and the federal courts. The scope of the federal court’s review was limited to whether the government followed established procedures.
Generally, under the 1996 Act, aliens who attempt to enter the United States by engaging in fraud or misrepresentation or who arrive without proper documents are subject to an expedited removal order from an INS inspector that the alien cannot appeal. The penalty for inadmissible aliens, including those subject to expedited removal, generally increased from the aliens’ being prohibited from entry in the United States for 1 year in the pre-1996 Act exclusion process to being prohibited from entry for 5 years under the post-1996 Act expedited removal process. Furthermore, inspectors have added responsibility to identify aliens who have a fear of returning to their home country. Under the expedited removal process, INS has established more specific procedures to guide inspectors than it had in the exclusion process used before the 1996 Act. Finally, the inspections component of the expedited removal process has more steps for INS inspectors than the exclusion process had and, therefore, INS estimated it generally took more of the inspectors’ time than the exclusion process did at the locations we visited.
INS implemented the expedited removal process by issuing regulations as well as specific guidance and training for its staff who would be responsible for carrying out the process. Between April 1, 1997, and October 31, 1997, INS data showed that 29,170 aliens went through the expedited removal process, including 1,396 aliens who were referred for a credible fear interview with an asylum officer. Documentation in the INS files that we reviewed at five locations showed some inconsistencies as to whether inspectors and supervisors were documenting that they followed various steps in INS’ expedited removal process, such as signing key forms and asking required questions. INS staff also have reviewed files and found that INS inspectors and supervisors were not always documenting that they followed INS procedures. INS officials told us that they have reinforced with inspectors the need for proper documentation.
subsections: section_title: The Exclusion Process
paragraphs: Before the implementation of the 1996 Act, aliens could be formally ordered removed only by an immigration judge through an exclusion hearing. If inspectors found that an alien was not admissible into this country, options available to the inspector included allowing the alien to withdraw his or her application for admission and voluntarily depart, processing a waiver of inadmissibility, deferring the inspection, paroling the alien into the United States (i.e., a procedure used to temporarily admit an excludable alien into the country for emergency reasons or when in the public interest), or preparing the case for an exclusion hearing. Figure 2.1 shows a flowchart of the exclusion process that was used before the 1996 Act.
As shown in the flowchart in figure 2.1, aliens who were denied admission by INS could request an exclusion hearing before an immigration judge. At these exclusion hearings, aliens were to be afforded the following due process procedures: be represented by counsel at no expense to the government; be informed of the nature, purpose, time, and place of the hearing; present evidence and witnesses in their own behalf; examine and object to evidence against them; cross-examine witnesses presented by the government; request the immigration judge to issue subpoenas requiring the attendance of witnesses and/or the production of documentary evidence; and appeal the immigration judge decisions to BIA and the federal courts.
At the exclusion hearing, the burden of proving admissibility generally rested with the alien. INS would present evidence and examine and cross-examine the alien and witnesses. At the end of the hearing, the judge would render a decision, such as (1) exclude the alien (i.e., not allow him/her to enter the United States); (2) grant the alien relief from exclusion (i.e., allow the alien to enter this country); or (3) permit the alien to withdraw his or her application for admission (i.e., allow the alien to voluntarily leave the country).
Either the alien or INS (or both) could appeal the immigration judge’s decision to BIA. If BIA upheld the judge’s decision to exclude the alien, the alien could appeal BIA’s decision to a U.S. district court. The district court’s review was limited to determining if the government followed established procedures (e.g., that a fair hearing was held, that INS followed its regulations, and that the immigration judge’s decision was supported by the record). The alien then could appeal an adverse district court decision to the U.S. Circuit Court of Appeals and, ultimately, to the U.S. Supreme Court. If an alien were found to be excludable after the final legal action was completed, INS was to arrange for the alien’s removal from this country. Aliens removed under this process generally were to be barred from reentering the United States for 1 year.
To provide some perspective on the disposition of aliens prior to April 1, 1997, who could have been subjected to expedited removal if they had attempted entry into this country after April 1, 1997, we obtained INS data for the three airports we visited. The airports’ databases captured up to three charges as the basis for exclusion. Table 2.1 shows the disposition of aliens who were not admitted into this country between October 1, 1995, and March 31, 1997, because at least one of the reasons for their inadmissibility was that they attempted to enter the United States by engaging in fraud or misrepresentation or arriving without proper documents—the only charges for which aliens can be subject to expedited removal. The majority of the aliens denied entry into this country at these three airports were sent to immigration judges for exclusion hearings. INS’ options for those aliens who were not sent to an immigration judge for an exclusion hearing included permitting the alien to withdraw his or her application or waiving or paroling the alien into the United States. We used the data from the three airports because INS did not have a nationwide database on excluded aliens by charge.
section_title: The Expedited Removal Process
paragraphs: Under the 1996 Act, on behalf of the Attorney General, the Commissioner of INS carries out the responsibilities to issue expedited removal orders against aliens classified as “arriving aliens.” Justice regulations have defined arriving aliens as those aliens who seek admission to or transit through the United States at a port of entry or who are interdicted in international or United States waters and are brought to this country. The 1996 Act also allows expedited removal orders to be issued to aliens who have entered the United States without being inspected or paroled at a port of entry. INS determined that, at least initially, it would not apply expedited removal orders to the last category of aliens—namely, those who entered the United States without inspection or parole. The specific violations (i.e., aliens attempting to enter the United States by engaging in fraud or misrepresentation or arriving without proper documents) under the 1996 Act that could subject the alien to an expedited removal order are discussed in appendix V.
The 1996 Act defines when INS can use expedited removal orders for arriving aliens. As discussed below, INS has established procedures for implementing the new provisions, such as requiring inspectors to read specific information to the aliens. Figure 2.2 shows the expedited removal process, including the credible fear process. In comparing figure 2.1 on the exclusion process with figure 2.2 on the expedited removal process, the expedited removal process for aliens who do not express a fear of being returned to their home country is more streamlined than the exclusion process. However, the expedited removal process for aliens who express a fear of being returned to their home country contains more steps than the exclusion process.
subsections: section_title: Steps in the Expedited Removal Process
paragraphs: According to INS’ regulations and implementing instructions, when an inspector plans to issue an expedited removal order to an alien, the inspector is to follow certain steps, as shown below:
Explain the expedited removal process to the alien and read the statement of rights and consequences in a language the alien can understand. Included in this statement are the facts that the alien may be immediately removed from this country without a hearing and, if so, may be barred from reentering for 5 years or longer; that this may be the alien’s only opportunity to present information to the inspector before INS makes a decision; and that if the alien has a fear or concern about being removed from the United States or being sent to his or her home country, the alien should tell the inspector during this interview because the alien may not have another chance to do so.
Take a sworn statement from the alien, which is to contain all pertinent facts of the case. As part of the sworn statement process, the inspector provides information to the alien, interviews the alien, and records the alien’s responses. The inspector is to cover and document in the sworn statement such topics as the alien’s identity and reasons for the alien being inadmissible into the United States; whether the alien has a fear of persecution or return to his or her home country; and the INS decision (i.e., issue the alien an expedited removal order, refer the alien for a credible fear interview, permit the alien to withdraw his or her application for admission, admit the alien, allow him or her to apply for any applicable waiver, or defer the inspection or otherwise parole the alien).
When the inspector completes the record of the sworn statement, he or she is to have the alien read the statement, or have it read to the alien, and have the alien sign and initial each page of the statement and any corrections that are made. The inspector is to provide a copy of the signed statement to the alien. The alien is to be given an opportunity to respond to INS’ decision. (See app. VI for a copy of the form used to record the alien’s sworn statement.)
Complete other administrative processes and paperwork, including the documents needed to remove the alien.
Present the sworn statement and all other related paperwork to the appropriate supervisor for review and approval.
section_title: Need to Identify Potential Asylum Seekers
paragraphs: According to INS instructions, the inspector is to refer an alien for an interview with an asylum officer if, for example, the alien indicates a fear of returning to his or her home country or an intent to apply for asylum. The asylum officer is to determine if the alien has a credible fear of persecution. Immigration officers referred 1,396 aliens who requested admittance to the United States between April 1, 1997, and October 31, 1997, for a credible fear interview. The process for determining whether aliens have a credible fear is discussed in chapter 3.
According to INS, to determine if an alien should be referred to an asylum officer for a credible fear interview, the inspector is to consider any statement or signs, verbal or nonverbal, that the alien may have a fear of persecution or a fear of returning to his or her home country. The questions that the inspector is required to ask and to record were designed to help determine whether the alien has such a fear. These questions are as follows:
Why did you leave your home country or country of last residence?
Do you have any fear or concern about being returned to your home country or being removed from the United States?
Would you be harmed if you are returned to your home country or country of last residence?
According to INS guidance, if the alien indicates he or she has a fear or concern or intends to apply for asylum, the inspector may ask additional questions to ascertain the general nature of the alien’s fear or concern. The alien does not need to use the specific terms “asylum” or “persecution” for the inspector to refer the alien for a credible fear interview, nor does the alien’s fear have to relate specifically to one of the five bases contained within the definition of refugee, which are the legal basis for an asylum determination. INS training materials note that there have been many cases for which asylum was ultimately granted that may not have initially appeared to relate to the definition of asylum. INS further requires that the inspector should not make eligibility determinations or weigh the strengths or credibility of the alien’s claim. Additionally, the inspector should err on the side of caution and refer to the asylum officer any questionable cases.
If the alien asserts a fear or concern that is clearly unrelated to an intention to seek asylum or a fear of persecution, then the inspector should not refer the case to an asylum officer. During our observations, we saw an instance where an alien initially expressed a fear of removal during a sworn statement for which the inspector did not refer the alien for a credible fear interview. The alien expressed concern about not being able to see her boyfriend who lived in the United States. The inspector checked with the supervisor to make sure that she should not refer this alien for a credible fear interview.
When an inspector is going to refer an alien for a credible fear interview, the inspector is to process the alien as an expedited removal case.Additionally the inspector is to explain to the alien in a language the alien understands information about the credible fear interview including (1) the alien’s right to consult with other persons, (2) the alien’s right to have an interpreter, and (3) what will transpire if the asylum officer finds that the alien does not have a credible fear of persecution. This information is contained in an INS form that the inspector is to give the alien (see app. VI for a reprint of this form). The inspector also is to provide the alien with a list of free legal services, which is prepared and maintained by EOIR.
section_title: Removal of Aliens Served an Expedited Removal Order
paragraphs: Generally, INS requires that aliens who are subject to expedited removal should be processed immediately unless they claim lawful status in the United States or a fear of return to their home country. Those aliens who arrive at air and sea ports of entry who are to be removed from the United States are to be returned by the first available means of transportation. Aliens arriving at land ports of entry who are ordered removed usually should be returned to Canada or Mexico. If the inspector is unable to complete the alien’s case or transportation is not available within a reasonable amount of time from the completion of the case, the inspector is to send the alien to an INS detention center or other holding facility until he or she can complete the case or remove the alien. Parole may only be considered on a case-by-case basis for medical emergencies or for legitimate law enforcement purposes.
section_title: Other Options Available in Lieu of Expedited Removal
paragraphs: An expedited removal order is not the only option available for the inspector to apply to aliens who are inadmissible because they attempted to enter the United States by engaging in fraud or misrepresentation or arrived without proper documents. Similar to the exclusion process, which was in place before April 1, 1997, depending upon the specific violation, the options available to the inspector include (1) allowing the alien to withdraw his or her application, (2) processing a waiver, (3) deferring the inspection, or (4) paroling the alien into the United States. However, INS can no longer refer these aliens to an immigration judge unless the alien is found to have a credible fear of persecution or the alien swears under oath to be an U.S. citizen or to have lawful permanent residence, refugee, or asylee status, but the inspector cannot verify that claim.
On December 22, 1997, INS issued additional guidance on when an inspector should offer aliens an opportunity to withdraw their application for admission. According to this guidance, the inspector should carefully consider all facts and circumstances related to the case to determine whether permitting withdrawal would be in the best interest of justice, or that justice would be ill-served if an order of removal (such as an expedited removal order) were issued. Factors to consider in making this decision may include, but are not limited to, previous findings of inadmissibility against the alien, the alien’s intent to violate the law, the alien’s age or health, and other humanitarian or public interest considerations. The guidance further states that ordinarily, the inspector should issue an expedited removal order when the alien has engaged in obvious, deliberate fraud. If the alien may have innocently or through ignorance, misinformation, or bad advice obtained an inappropriate visa and did not conceal information during the course of the inspection, withdrawal should ordinarily be permitted.
section_title: Differences Between the Exclusion and Expedited Removal Processes
paragraphs: The 1996 Act and its implementation affected the immigration proceedings in numerous ways. Two major differences between the exclusion and expedited removal processes are INS’ authority to issue the expedited removal order and the aliens’ limited right of review of that order. Other changes include (1) an increased penalty for inadmissible aliens, including those subject to expedited removal; (2) a more structured inspection process for expedited removal than for exclusion; and (3) estimated additional time taken by inspectors to complete the expedited removal process due to the additional steps in the process.
subsections: section_title: Limited Review of Inspectors’ Decisions
paragraphs: Before the 1996 Act, aliens who attempted to enter the United States by engaging in fraud or misrepresentation or who arrived without proper documents could have received a hearing by an immigration judge to determine if the aliens should be allowed to enter the United States. The aliens could apply for asylum during this hearing. Furthermore, aliens had the right to appeal to BIA the immigration judge’s decision not to allow them to enter the country. Aliens could appeal an adverse decision by BIA through the federal courts. However, the scope of the federal courts’ review was limited to whether the government followed established procedures. Under the 1996 Act, inspectors, as opposed to immigration judges, can issue aliens expedited removal orders if they attempt to enter the United States by engaging in fraud or misrepresentation or arrive without proper documents. Generally, aliens who do not express a fear of being returned to their home country cannot have a review of the INS’ decisions. In addition, inspectors are to look for signs from the aliens of fear of being returned to their home country and, if aliens exhibit such a fear, inspectors are to refer the alien to an asylum officer for a credible fear interview.
section_title: Increased Penalties
paragraphs: Before the 1996 Act, aliens who were issued a formal exclusion order generally were barred from reentering the United States for 1 year. With the implementation of the 1996 Act, the reentry restriction for inadmissible aliens, including those subject to expedited removal, generally increased to 5 years. Aliens are allowed to request permission to reapply for admission to this country during the 5-year period.
section_title: More Formal Inspection and New Credible Fear Process
paragraphs: Under the exclusion process, INS had general procedures for its inspectors to follow when referring aliens to an immigration judge. For example, INS guidance stated that inspectors should make every effort to establish the grounds of inadmissibility, including taking a formal question and answer statement from the alien, if necessary. Under the expedited removal process, INS requires the inspectors to follow specific steps. (For information on steps in the expedited removal process, see the previous discussion.)
The expedited removal process also added new procedures for asylum officers to follow in determining whether aliens have a credible fear of persecution and, therefore, should not be immediately removed under the new process. These procedures are discussed in chapter 3.
section_title: INS Estimates That Expedited Removal Cases Have Taken More INS Staff Time to Complete Than Exclusion Cases
paragraphs: For the five INS field units we reviewed, INS estimates of average inspection-related adjudication time generally show that the time it took an inspector at secondary inspection to complete an expedited removal case was greater than the average time it took to complete an exclusion case for aliens who attempt to enter the United States by engaging in fraud or misrepresentation or who arrive without proper documents, as shown in tables 2.2 and 2.3. According to an INS official, the differences in inspectors’ time between the two processes are due, in part, to the additional steps associated with the inspection components of the expedited removal process.
The time for inspectors and supervisors to prepare a case in secondary inspection includes interviewing the alien and preparing and reviewing the paperwork related to an exclusion hearing or an expedited removal order. Because the methods each office used to develop its estimates varied, the data are not comparable among the locations.
The estimated times presented in tables 2.2 and 2.3 represent cases where interpreters were not used. Officials at some of the ports told us that the use of an interpreter increased the amount of time the inspector spent on the case from 1/2 hour to 1-1/2 hours. We obtained estimates from the four ports of entry and the Buffalo district.
The estimated time used by INS inspectors on the exclusion and expedited removal processes are not comparable because of the differences between the two processes. Also, the 1996 Act established a new credible fear referral process for inspectors. In addition, while some locations estimated that the expedited removal process takes more inspection time, the process has reduced options for aliens to appear before an immigration judge and federal courts regarding an INS removal decision. Times involved in those steps of the pre-1996 Act process were not included in our analysis.
section_title: Implementation of the Expedited Removal Process
paragraphs: To implement the expedited removal process, INS developed operating instructions and planned to provide training to all of its immigration and asylum officers. INS’ and EOIR’s estimated cost to implement the expedited removal process was about $4.8 million. The five ports of entry we visited developed port-specific methods to implement INS’ process. Between April 1, 1997, and October 31, 1997, 29,170 aliens, including 1,396 aliens referred for credible fear interviews (discussed in ch. 3), were processed under the expedited removal process.
Documentation in the files we reviewed at the locations we visited showed mixed results as to whether inspectors and supervisors were consistently documenting that they followed various steps in INS’ expedited removal process. For the steps we reviewed, the files indicated a range of compliance from an estimated 80 to 100 percent. In addition, at the locations we visited, INS was generally removing aliens to whom it issued expedited removal orders within a few days. INS officials at the locations we visited said that they had not encountered any changes in cooperation from countries and air carriers when removing aliens through the expedited removal process.
subsections: section_title: Guidance and Training
paragraphs: On January 3, 1997, INS issued proposed rules regarding the implementation of the 1996 Act, including the expedited removal process. On March 6, 1997, INS issued its interim rules. These interim rules are to remain in effect until INS publishes final rules.
INS developed and distributed specific guidance for its inspectors on how to implement the expedited removal process. This guidance was incorporated into the training that INS developed for its officers on the 1996 Act. The training information on the expedited removal process included instructions on who would be subject to expedited removal, what information should be obtained in a sworn statement, and when to refer an alien to an asylum officer for a credible fear interview. According to INS, it trained about 16,400 of its staff. INS has modified its existing training for newly hired employees to include the expedited removal process.
section_title: Estimated Cost to Start Up the Expedited Removal Process
paragraphs: The 1996 Act required INS and EOIR to implement a number of changes, including the expedited removal process. To identify the cost of implementing only the expedited removal process, which includes the credible fear determination procedures, we asked INS and EOIR to provide data on the cost of getting policies and procedures in place and providing training on the new process and procedures. We asked the offices to limit their estimates to the start-up costs incurred to implement the procedures. The data collected included estimated costs for (1) salary and benefits of employees who worked full- and part-time on the implementation or who took the training; (2) travel; (3) materials and supplies; (4) office space and facilities; and (5) goods and services received (including the use of outside consultants). As shown in table 2.4, the estimated cost to implement the expedited removal process was about $4 million for INS and about $700,000 for EOIR. These estimated costs basically represent one-time costs associated with starting the expedited removal process for INS and EOIR.
section_title: Aliens Processed Through the Expedited Removal Process
paragraphs: According to INS data, about 7 percent of the aliens who attempted entry between April 1, 1997, and October 31, 1997, and who were not admitted at ports of entry, were processed under the expedited removal process (27,774 of 395,335 aliens). Table 2.5 shows the number of aliens who requested entry between April 1, 1997, and October 31, 1997, and who entered the expedited removal process (but were not referred for a credible fear interview). Of the 27,774 cases in which aliens were processed under expedited removal, 27,345 (98.5 percent) had been closed as of December 15, 1997. In 99.6 percent of the 27,345 cases that were closed, the alien was removed after receiving a removal order.
More detailed information on the characteristics of aliens who were processed under the expedited removal process is provided in appendix VII.
The following are some examples from our case file reviews at the ports we visited of reasons inspectors found aliens inadmissible and subject to the expedited removal process: the alien had previously overstayed his or her visa; the alien intended to work in the United States but did not have the proper documents to allow him or her to do so; and the alien had a counterfeit border crossing card or resident alien card.
section_title: Port-Specific Implementation of the Expedited Removal Process
paragraphs: In addition to the national guidance, three approaches for implementing the expedited removal process were employed by the five ports of entry we visited.
INS’ Miami airport approach had a separate unit of inspectors to handle the expedited removal cases. If an alien was sent from primary inspection to secondary inspection and the inspector at secondary determined the alien was subject to expedited removal, the inspector was to refer the alien to the specific unit handling expedited removal cases. The expedited removal unit was staffed by inspectors and supervisors at the GS-11 level and above. These inspectors were to take the sworn statement and complete other paperwork related to the expedited removal case.
At the San Ysidro port, INS used a three-step approach. First, when an alien admitted to the inspector at secondary that he or she presented a malafide (e.g., fraudulent) application for entry, the inspector was to send the alien to an enforcement team for processing. The enforcement team that handled the expedited removal cases was comprised of inspectors and supervisors at the GS-7 to GS-12 level. Second, among other things, the team was to show the aliens a Spanish-language video tape explaining the expedited removal process. The sworn statements were not taken at the port of entry unless the aliens expressed a fear of returning to their home country. Third, the women were to be transported to a local motel that is used for temporary detention, and the males were to be transported to the El Centro Service Processing Center. At these sites, an enforcement team member was to take the aliens’ sworn statements, complete the paperwork, and serve the aliens with the expedited removal order. The aliens were to be detained at these locations until their removal.
The Niagara Falls land port (which consisted of three bridges), JFK airport, and Los Angeles airport did not establish a separate unit to process expedited removal cases. At these locations, an inspector was to send an alien from primary inspection to secondary inspection, where the inspector was to determine if the alien was subject to expedited removal and, if so, was to complete the case.
section_title: Case File Documentation Indicated Inconsistent Compliance With INS Procedures
paragraphs: We reviewed the case files on 434 aliens who attempted entry at the five locations between May 1, 1997, and July 31, 1997, and who were charged under the expedited removal provision but were not referred for a credible fear interview. For the Buffalo district, we reviewed all files and for the other four locations we randomly selected case files for review. Our review showed that the documentation in the case files at the five locations we visited indicated inconsistent compliance with the procedures. See appendix II for information on the case file review methodology and the calculation of the sampling error.
As part of the case file review, we determined whether (1) the inspectors documented in the sworn statement that they asked the aliens the three required questions designed to identify a fear of returning to their home country, (2) the aliens signed the sworn statements, and (3) the supervisors reviewed the expedited removal orders. Documentation on compliance varied among the locations.
Regarding asking the three required questions, our case file review of the documentation showed that inspectors at Miami airport documented that they asked the required questions an estimated 100 percent of the time. At the other four locations the results were less consistent: the case files indicated that inspectors did not document asking at least one of the three required questions, or some version thereof, between an estimated 1 and 18 percent of the time. For example, the documentation in the case files showed that inspectors did not record asking the required question “Why did you leave your home country or country of last residence?” (or some version thereof) an estimated 18 percent of the time at Los Angeles airport, 15 percent of the time in San Ysidro, 5 percent of the time in the Buffalo district, and 2 percent of the time at JFK airport. In addition, the case file documentation showed that the inspectors did not record asking the required question “Do you have a fear or concern about being returned to your home country or being removed from the United States?” (or some version thereof) an estimated 3 percent of the time at Los Angeles, 2 percent of the time in San Ysidro and at JFK airport, and 1 percent of the time in the Buffalo district. In the 434 files we reviewed, we found 6 cases involving 4 locations in which the inspector did not document asking any of the 3 required questions on fear.
According to one of its members, INS’ Expedited Removal Working Group also has identified cases in which inspectors did not ask these required questions. She said that the failure to ask the questions generally occurred when the inspectors were using a draft version of the sworn statement, which had a different version of the required questions. As the Working Group became aware of this problem at specific ports of entry, the official said that she informed port officials of the importance of asking these questions and documenting that they were asked and sent the ports of entry the correct version of the sworn statement.
In addition to our file reviews, we observed secondary inspectors’ handling of 16 cases of aliens who were subject to expedited removal. In 15 cases, the inspectors asked applicants the required fear of return questions. In one case the inspector asked two of the three required questions. In five cases the applicants expressed a fear of return. In three of the cases, the inspectors referred the aliens to an asylum office for a credible fear interview. In the other two cases, the aliens initially expressed a fear. In one of the two cases, the alien recanted his fear. In the second case, the alien expressed concern about not being able to see her boyfriend who lived in the United States. The inspector checked with the supervisor to make sure that she should not refer this alien for a credible fear interview.
Furthermore, for almost all the cases we reviewed, the files contained sworn statements signed by the aliens. For the five locations, the files indicated that aliens signed the statements between an estimated 97 and 100 percent of the time.
Lastly, in our case file review at five locations, the documentation showed that the range in which supervisors documented that they reviewed the expedited removal orders was from an estimated 80 to 100 percent. At two of the locations, documentation in the files showed that a supervisor reviewed all of the orders. In addition, INS’ Office of Internal Audit (OIA) conducted reviews of field unit operations, including expedited removal. Its first audit that included the expedited removal process covered the activities of the Newark District Office and was conducted between April 21 and May 2, 1997. OIA found that in 6 of the 27 cases, supervisors did not review and approve removal orders at the Newark International Airport. OIA recommended that the District Director require all removal orders issued by immigration officers be reviewed by a second-line supervisor and that an indication of the review be annotated on the form before its execution.
A member of INS’ Working Group said that, through the group’s case file reviews, it has identified cases in which the documentation of supervisory reviews has been missing. She said that when the Working Group has identified this problem, it has informed relevant port officials of the problem. She also said that the Working Group has discussed the need for supervisory review and proper documentation of such review in its field visits and in written guidance distributed to the field.
section_title: Aliens Generally Removed Within 2 Days
paragraphs: On the basis of our file reviews of cases where aliens were not referred for a credible fear interview, for three of the locations (Los Angeles airport, Miami airport, and Buffalo district) we estimated that at least 95 percent of the aliens who received expedited removal orders were removed either the day they attempted to enter the United States or the day after. At JFK airport, an estimated 84 percent of such aliens were removed either the same day or the day after they attempted to enter this country. We estimated that for the majority of the aliens who requested entry into this country through the San Ysidro land port of entry (90 percent), it took 2 or more days for them to be removed.
INS does not maintain nationwide data on the cooperation of foreign countries and air carriers in accepting aliens who were removed under the expedited removal provision. We asked INS officials at the locations we visited if they had problems with air carriers or countries accepting such aliens since April 1, 1997. INS officials said that air carrier cooperation had not been a problem. They added that, generally, delays related to the air carriers have occurred only when there have been a limited number of available flights. Regarding country cooperation, INS officials at four locations said they have encountered problems returning aliens to certain countries. However, these problems also existed before April 1, 1997, and, therefore, were not unique to aliens who received expedited removal orders. Buffalo district officials said that the United States has an agreement with Canada whereby Canada will accept aliens whom the United States denies entry to this country at the U.S.-Canada border. Therefore, the officials said that the Buffalo district did not have problems returning to Canada aliens who received expedited removal orders.
section_title: The Credible Fear Process
paragraphs: Aliens attempting to enter the United States who express to an INS inspector a fear of being returned to their home country are to be referred to an asylum officer for a credible fear interview. The purpose of the interview is to determine if aliens have a credible fear of persecution. The asylum officers are to read information to the alien about the credible fear process. If the asylum officer determines that the alien has a credible fear, the alien is referred to an immigration judge for a removal hearing. If the asylum officer finds that the alien does not have a credible fear, the alien can request that an immigration judge review the asylum officer’s negative credible fear determination.
Asylum officers determined that 79 percent of the aliens who attempted to enter the United States from April 1 to October 31, 1997, for whom the officer had completed the credible fear interview, had a credible fear of persecution. On the basis of the documentation in our nationwide case file review and nine observations, the asylum officers read most of the required information to the aliens during the credible fear interviews. INS estimated the amount of time needed to process a credible fear case ranged between about 6 to 10 hours for the Los Angeles, Miami, and New York asylum offices. Nationwide, immigration judges affirmed INS’ negative credible fear determinations about 83 percent of the time. EOIR estimated that the amount of time needed to complete a negative credible fear review was about 1 hour.
subsections: section_title: The Credible Fear Process
paragraphs: As discussed in chapter 2, inspectors are to refer aliens who have expressed a fear of persecution to an asylum officer for a credible fear interview. Before holding the credible fear interview, asylum officers are required to inform aliens about the credible fear and asylum processes; to inform aliens of their option to obtain a consultant who can be a lawyer, friend, relative, or anyone of the aliens’ choosing; and to provide a list of people and organizations that provide legal services. According to an INS official, at some locations, this information is provided during an orientation. The regulations require INS to provide interpreters in the credible fear interviews, when necessary.
In a credible fear interview, the 1996 Act requires the asylum officer to decide whether there is a significant possibility that the alien could establish eligibility for asylum. To make this determination, INS requires the asylum officer to consider whether a significant possibility exists that (1) the alien’s statements are credible (i.e., that the alien’s testimony is consistent, plausible and detailed); (2) the alien faced persecution in the past or could be harmed in the future; and (3) the alien’s fear is related to one of five bases for obtaining asylum—persecution because of race, religion, nationality, political opinion, or membership in a particular social group. In addition, the asylum officer is to read mandatory information about the process, the right to appeal a negative credible fear determination to an immigration judge, and the fear of being tortured. The asylum officer is to read aloud the mandatory paragraphs from an INS form on which the officer also records the results of the credible fear interview. See appendix VI for a reprint of the Credible Fear Worksheet.
For aliens referred to an asylum officer, INS states that the asylum officer is to consider the credible fear standard as a low threshold to screen for persons with promising asylum claims. During the interview with an asylum officer, an alien can have a consultant present. The asylum officer is to record the results of the credible fear interview, including his or her determination of the alien’s ability to meet any of the five grounds for asylum. INS requires supervisory review of asylum officers’ credible fear determinations.
If the asylum officer finds that the alien has a credible fear of persecution, the alien will be placed in removal proceedings before 1 of about 200 immigration judges during which the alien can make a formal application for asylum. During these proceedings, the immigration judge is to decide whether the alien’s asylum claim warrants his or her being granted asylum in the United States. If the asylum officer finds that the alien does not have a credible fear, the alien has a right to request that an immigration judge review the negative credible fear determination. If the alien does not request a review of the credible fear determination, the alien is subject to expedited removal.
In cases where the alien requests a review of an asylum officer’s negative credible fear determination, the immigration judge is to review this determination. During this review, the immigration judge may receive into evidence any relevant written or oral statements. If the immigration judge agrees with the asylum officer’s negative credible fear decision, the alien cannot appeal the immigration judge’s decision and is to be removed through the expedited removal process. If the immigration judge disagrees with the asylum officer’s negative credible fear decision, the alien is to be placed in removal proceedings, during which he or she can apply for asylum. During the immigration judge’s review, at the discretion of the immigration judge, the alien may enlist the aid of a consultant in the review process.
section_title: Data on Aliens Referred for Credible Fear Interviews
paragraphs: INS data for aliens who attempted to enter the United States between April 1, 1997, and October 31, 1997, show that inspectors referred 1,396 aliens to asylum officers for a credible fear interview. Of the aliens who were referred, 1,108 had completed their interviews as of November 13, 1997. Nationwide, asylum officers determined that 79 percent of these 1,108 aliens had a credible fear of persecution. According to an INS official, about 10 percent of the aliens referred for a credible fear interview have recanted their claim of a fear of persecution before an asylum officer. As shown in table 3.1, positive credible fear determination rates for the eight asylum offices ranged from 59 to 93 percent.
section_title: Results of Case File Reviews and Observations
paragraphs: We reviewed the files for all 84 negative credible fear determinations made for aliens who requested entry between May 1, 1997, and July 31, 1997. Not all of the 84 case files contained complete documentation and, therefore, some of our analysis was made on fewer than 84 cases. In most of these determinations (55 of 81) the asylum officer concluded that the aliens’ fears were not based on 1 of the 5 grounds for asylum. In 25 of 76 cases, the officer concluded that the aliens’ testimonies were not credible.
Documentation in the 84 case files we reviewed nationwide indicated that INS generally followed its procedures for determining an alien’s credible fear, but did not consistently document whether asylum officers provided information regarding the alien’s fear of being tortured. Our review of the 84 negative credible fear case files showed that the asylum officers indicated by marking on the records of interview that they (1) read the required paragraph regarding the aliens’ fear of persecution in all but 1 case and (2) informed the aliens of their right to have an immigration judge review a negative credible fear determination in all but 3 cases. However, our review of the case files showed no documentation on whether the asylum officers read the paragraph on torture in 19 of 83 cases. In addition to the 84 cases, we attended 9 credible fear interviews in which the asylum officers generally followed INS’ procedures regarding credible fear interviews, including reading the mandatory material. In eight out of nine cases we observed, all of the mandatory paragraphs were read or summarized. In the ninth case, the asylum officer did not read the required paragraph on torture.
An INS official told us that the headquarters Asylum Office reviewed the cases for which the paragraph on torture was not checked off in the file and found other evidence in the file to indicate that questions related to torture were asked and, therefore, she believed that the problem was related to poor recordkeeping. The INS official also told us that INS has subsequently reiterated to its asylum officers that they are to read the paragraph on torture and ask the related questions in the credible fear interview and to record that the paragraph was read and questions were asked.
The asylum officers are to record the results of the credible fear interview, including the alien’s ability to meet any of the five bases for asylum. As part of our observation, we compared asylum officers’ records of the credible fear interviews to our observations. We found the credible fear worksheets completed by the asylum officers to be consistent with our observations in all of the nine cases.
Our case file review showed evidence that 69 of 75 cases had supervisory reviews. For the remaining six cases, the files did not have the signatures of supervisors indicating that they had reviewed the files.
Furthermore, in the negative credible fear determination case files we reviewed, we also determined whether in credible fear interviews an interpreter was used and if the alien had a consultant. The case files indicated that, in 66 of 82 credible fear interviews, an interpreter was used.Aliens had consultants in 19 of the 84 cases.
subsections: section_title: Asylum Adjudication Time and Interpreter Costs
paragraphs: We requested that the three asylum offices we visited provide the estimated time required to process a credible fear case. The estimate for the asylum officer was to include the time needed to provide aliens with an orientation, prepare for and conduct the credible fear interview, and complete the associated paperwork. The estimate for the supervisor was to include the time spent discussing and reviewing the case and its related paperwork.
The New York and Miami asylum offices provided average time estimates on a per case basis to complete these and other tasks associated with the credible fear process. We totaled these time estimates to get an overall average of the amount of time spent per case by the asylum officers and supervisors at each office. The Los Angeles asylum office estimated average time spent by asylum officers and supervisors on the basis of total hours spent for the time period October 1 to December 19, 1997, including travel time, and did not identify the time by specific tasks. To estimate the average time per case, the Los Angeles Office divided the total hours for the asylum officers and supervisors by the number of cases for that period. Therefore, estimates from the Los Angeles asylum office and the other two asylum offices are not comparable because of the different approaches used to develop their time estimates. The data we received are summarized in table 3.2.
section_title: Negative Credible Fear Determination Review by the Immigration Judge
paragraphs: Aliens who have received a negative credible fear determination from asylum officers have the option of requesting a review of their case by an immigration judge. Between April 1, 1997, and October 31, 1997, EOIR received 198 cases for review of a negative credible fear determination. Of these 198 cases, immigration judges affirmed asylum officers’ negative credible fear determinations in about 83 percent of the cases.
We reviewed the bases for immigration judges’ decisions made through August 31, 1997, in which they overturned (vacated) the asylum officers’ determinations. In 14 of the 18 cases we reviewed, the immigration judges found that the aliens had established a “significant possibility” of harm as required by the 1996 Act.
The following six nationalities had the most numbers of aliens who requested review of their negative credible fear determinations: Haiti (51), China (24), Albania (15), Guatemala (14), Mexico (12), and El Salvador (8). The remaining 74 aliens were of 33 nationalities.
The seven judges we interviewed differed on their court procedures for consultants’ roles. The consultants’ roles ranged from being permitted to speak to not being allowed to speak in the court at all. The position of the Office of the Chief Immigration Judge is that although an alien has no statutory right to consult with anyone during the immigration judge’s review of a negative credible fear finding, nonetheless, there are circumstances where the judge may find it extremely helpful to enlist the aid of the consultant during the review process. To ensure that his or her decision is based on all relevant material available, the immigration judge may permit the consultant to speak with the alien, may question the consultant, or may request a statement from the consultant.
subsections: section_title: EOIR Adjudication Time
paragraphs: According to EOIR data, the average time to complete a negative credible fear review was about 1.5 hours. This time included about 1 hour spent by the immigration judge to prepare and conduct the interview and complete the paperwork. In addition, legal technicians spent about 30 minutes on the administrative process. Furthermore, the cost for interpreters was $71 per hour for Spanish and Creole and $95 per hour for other languages. According to EOIR, interpreters were used in about 85 percent of all of the cases. EOIR based its estimates on data it obtained from the Krome (Miami, FL), Elizabeth (NJ), and Wackenhut (New York, NY) immigration courts for the period April 1, 1997, to September 30, 1997.
section_title: INS’ Mechanisms to Monitor the Expedited Removal Process
paragraphs: In addition to the procedures discussed in chapters 2 and 3, INS has developed or is in the process of developing mechanisms to monitor the expedited removal process, including the credible fear determinations. These mechanisms include establishing headquarters working groups and field experts, auditing and reviewing the process, training staff who are involved in the process, establishing procedures to be followed in carrying out the process, and getting input from nongovernmental organizations.
subsections: section_title: INS Monitoring Activities
paragraphs: INS has instituted activities to monitor and provide information on and identify potential changes to the expedited removal process.
INS established the Expedited Removal Working Group to identify and address policy questions, procedural and logistical problems, and quality assurance concerns related to the expedited removal process. The group consists of representatives from the Offices of Inspections, International Affairs, Asylum, Detention and Deportation, Field Operations, and General Counsel. One way in which the group carries out its duties is through visits to INS field units where group members review case files and meet with management and staff involved in the expedited removal process to discuss such things as resource materials, the process, and policy issues. Among other things, the Working Group has provided additional written guidance on the taking of sworn statements and on when to permit aliens to withdraw their applications. INS established an Asylum Office quality assurance team at headquarters to review selected credible fear files. According to INS officials, the quality assurance team is to focus on credible fear determination issues, while the Expedited Removal Working Group is to focus on the entire expedited removal process, including asylum and inspection. This quality assurance team consists of four asylum officers who are to analyze decisions in individual cases, provide feedback to applicable asylum officers, and identify trends or patterns on the basis of the reviews. Initially, the feedback to asylum officers was informal and each member of the group used his or her own review method. Beginning January 2, 1998, the team is to use a checklist to standardize the monitoring and to review all negative credible fear determinations before the decision is served on the alien. The team is to prepare monthly reports that are to address problems faced by all offices and is to address serious problems immediately. INS’ Office of Internal Audit examines field unit functions and operations. The objectives of these reviews include evaluating units’ effectiveness and determining compliance with applicable laws, regulations, and procedures. Beginning in April 1997, the audits were to include reviewing the expedited removal process. In chapter 2, we discussed OIA’s first report that included the expedited removal process.
As part of its efforts to communicate with outside entities that deal with immigration issues, INS has met periodically with nongovernmental organizations to discuss issues related to the expedited removal process, including the credible fear process. Some of the concerns of the nongovernmental organizations are discussed in the next section of this chapter.
In addition to these previously mentioned mechanisms, INS established certain procedures to help ensure that the expedited removal process is implemented properly and consistently. First, INS stated it trained about 16,400 of its staff on the implementation process for the 1996 Act, including the expedited removal (and credible fear) provision. According to INS officials, asylum officers were to be given additional training on making credible fear determinations. Second, INS issued operating procedures that require inspectors and asylum officers to follow specific steps when considering issuing expedited removal orders and making credible fear determinations. Third, INS requires that all expedited removal orders and credible fear determinations be reviewed by a supervisor. Finally, for aliens who were determined not to have a credible fear of persecution, INS may, at its discretion, offer a second credible fear interview to an alien, even if the alien has not established a credible fear before an asylum officer or after an immigration judge review.
section_title: Concerns Raised by Nongovernmental Organizations
paragraphs: Several nongovernmental organizations provided information about their concerns regarding the expedited removal process and including information on (1) issues related to the expedited removal process and credible fear determinations and (2) specific problems that aliens said they encountered when they arrived at ports of entry. In addition, these organizations provided data describing specific situations of INS’ handling of aliens who were subject to expedited removal. We did not verify the data they provided. These organizations’ concerns about the process included allegations that aliens did not understand the expedited removal process because, for example, the removal order was legalistic and incomprehensible; interpreters’ competency varied, which in some instances caused serious mistakes to be made in translation; consultants were denied access to documents in applicants’ case files, such as the sworn statements; and attorneys were not allowed to play a meaningful role at the credible fear interview (e.g., they were not permitted to make opening or closing statements or to ask questions, and they had no opportunity to consult with their clients before deciding whether to request a negative credible fear review by an immigration judge).
The organizations also raised allegations of INS officers’ unprofessional treatment of aliens attempting to enter the United States. The alleged actions of INS officers included (1) not explaining the expedited removal process, including applying for asylum; (2) not providing interpretation services; (3) verbally abusing the aliens; and (4) not providing physical amenities, such as food, water, bed and blankets, and bathroom facilities.
In addition to the INS mechanisms discussed above that are related to these types of issues, INS officials told us that every alien and consultant has access to the relevant documents regarding the alien’s case (e.g., sworn statement). Regarding the consultant’s role, INS stated that the consultant and the asylum officer should share a cooperative role in developing and clarifying the merits of the alien’s claim. Furthermore, the consultant should generally be given the opportunity to make a statement at the end of the interview, comment on the evidence presented, and ask the alien additional questions. Concerning the competency of interpreters, INS procedures provide that the alien or the alien’s consultant has the right to request a different interpreter if he or she feels that the interpreter is not competent or neutral. Additionally, INS officials said that the alien or the alien’s consultant may request another interpreter for whatever reason. Regarding unprofessional behavior, INS stated that it will do more to ensure that aliens, including those who attempt to enter illegally, know their civil rights and how to register a complaint if abused by an INS officer. Furthermore, the Commissioner said that INS insists on proper, humane, and polite treatment of people who are entering the United States whether their documents are correct or not.
We had no way to determine the validity of the issues that the organizations raised, including the specifics about any individual alien. Our limited observations, case file reviews, and discussions with INS officials did not identify problems similar to those raised by the organizations. Concerning our observations, our presence may have affected what took place during inspections, interviews, and reviews, but we have no way of knowing whether, how, or to what extent this happened.
section_title: Changes to the Expedited Removal Procedures
paragraphs: INS is in the process of changing aspects of the expedited removal procedures on the basis of input it has received from its internal groups and the nongovernmental organizations. These changes include the following: INS is revising some expedited removal forms that contain explanations to be read to the alien (e.g., Information about Credible Fear Interview). According to INS, as part of this revision process, it has asked some of the nongovernmental organizations to review the forms to make them easier for aliens to understand. INS assigned the responsibility of being an expedited removal expert to selected staff for each region and district to ensure that policy guidance is distributed, understood, and implemented. INS officials have completed training these staff on their new duties associated with being an expedited removal expert. INS said that it permits aliens to provide their own interpreters for credible fear interviews.