Criminal Aliens: INS' Efforts to Remove Imprisoned Aliens Continue to Need Improvement
Released: 1998-10-16T00:00:00

Letter

Background

Criminal aliens annually cost our criminal justice system millions of dollars, and these aliens are generally perceived to be a serious and growing threat to public safety. In response to these problems, several major laws were passed between 1986 and 1996 that (1) provided for the initiation of removal proceedings for certain criminal aliens while they were incarcerated, (2) expanded the types of crimes for which aliens could be deported, and (3) sought to facilitate the expeditious removal of those aliens found to be deportable.

The Immigration Reform and Control Act of 1986 (P.L. 99-603) requires that INS initiate removal proceedings for criminal aliens as expeditiously as possible after the date of conviction. INS and EOIR established the IHP to meet this requirement. The Anti-Drug Abuse Act of 1988 (P.L. 100-690) defined the crimes of murder and certain drug and weapons trafficking crimes as “aggravated felonies” and required INS to initiate and, to the extent possible, complete removal proceedings for aggravated felons before their release from incarceration. It also required that INS take all such aggravated felons into custody when the aliens are released from prison.

Several laws passed in the 1990s, including the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (1996 Act), expanded the types of crimes that are considered aggravated felonies. Under the 1996 Act, INS is required to take all aggravated felons and certain other criminal aliens into custody when the aliens are released from prison. Currently, INS may release deportable criminal aliens, including aggravated felons, from custody only if (1) the aliens were lawfully admitted to the United States, or were not lawfully admitted to the United States but the designated country of removal will not accept the aliens, and (2) the aliens satisfy the Attorney General that they will not pose a danger to the safety of other persons or of property and that they are likely to appear for any scheduled proceeding.

In addition to traditional removal proceedings, which require a hearing before an immigration judge, Congress has provided alternative methods for INS to remove certain criminal aliens. The Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322) provided for administrative removals, thereby eliminating the hearing requirement for those aliens who were not lawfully admitted for permanent residence, were convicted of an aggravated felony, and were not eligible for relief from removal. The 1996 Act provided for reinstatement of removal orders (referred to as a “final order of deportation”) against aliens who reentered the United States illegally after being removed. The prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed; the alien is not eligible for and may not apply for any relief.

The IHP Process

For criminal aliens who are in prison and have a right to an immigration judge review before being removed, proceedings before an immigration judge are to be conducted through the IHP. As of September 1998, the IHP was carried out at 15 federal and 61 state prisons where INS staff are to conduct interviews and process aliens for removal. Since 1994, INS has developed written IHP enhancement plans for BOP and states with large foreign-born inmate populations to enhance the processing of aliens in prisons. The plans, which varied among BOP and the states, included such enhancements as reducing the number of prison locations that INS staff had to visit to process criminal aliens and increasing the number of INS staff who process IHP cases. For example, INS signed a memorandum of understanding (MOU) with BOP to enable INS staff to process a large portion of the foreign-born inmates by visiting 11 federal institutions that were designated as IHP sites instead of visiting more than 70 federal institutions. At the state level, INS’ agreement with Texas was to enhance the IHP process by establishing one state prison where all of the foreign-born inmates would be identified and processed for hearings and from which inmates would be released into INS custody.

The IHP’s goal is for INS and EOIR to complete removal proceedings for all criminal aliens while they are still serving their sentences and expeditiously remove aliens deemed deportable upon their release from prison. This action would eliminate the need for INS to take aliens into long-term custody upon their release and would free up INS detention space for other cases. Aliens who do not complete the IHP are often taken into INS custody after prison release to complete the hearing process while in INS detention, and these aliens can be ordered removed by an immigration judge during the detention period.

INS agents generally rely on BOP and state corrections personnel to notify them of incoming prisoners who state they are foreign born or whom corrections personnel identify as foreign born. According to corrections personnel, they typically first learn that prisoners are foreign born during prison intake procedures, which include interviews with and record checks on arriving inmates. The IHP process begins when INS agents screen foreign-born inmates to determine their deportability. If the INS agent determines that an inmate has committed a crime for which he or she can be deported, the agent is to file a “detainer” with corrections officials. A detainer in a prisoner’s record signifies that he or she is to be released to INS custody upon completion of the prison sentence.

The information that INS agents gather on criminal aliens during the initial phase of the IHP process is to be used to prepare documents notifying the aliens of INS’ intention to deport them through removal proceedings, administrative removal, or reinstatement of a prior order. INS attorneys are to review the notices for legal sufficiency, and, for removal proceeding cases, INS files the cases with EOIR and serves the aliens with a document charging them with having committed a deportable offense. At that point, the aliens are included in the IHP.

EOIR is to schedule an initial hearing and notify the alien. The purpose of the initial hearing is to explain the process to the alien, resolve evidentiary issues, prepare a list of desired witnesses, and address the issue of legal representation for the alien. The alien may immediately accept an order for deportation. Alternatively, if the alien contests removal, a subsequent hearing may be held, during which witnesses may be called and evidence may be entered supporting INS’ charge of deportability and/or the alien’s claim for relief from removal. After all of the evidence is presented and appeals processes, if any, are completed, an immigration judge renders a final decision. If the alien is ordered removed, a deportation order is to be served on the alien. Before a final decision on the case, INS is required to take certain deportable aliens into custody, even if the removal proceedings have not been completed. Those in removal proceedings who receive a final order of deportation, as well as those who are to be deported through administrative and reinstatement orders, are to be held in INS detention until they are removed from the United States.

Appendix II contains a flowchart of the IHP process.

Objectives, Scope, and Methodology

To assess the performance of INS’ efforts to deport criminal aliens, we analyzed data on 19,639 individuals who were identified by BOP and four states as foreign born and released from prisons between January 1 and June 30, 1997. Our work was designed to determine the extent to which deportable criminal aliens were included in the IHP, the extent to which INS completed removal hearings for deportable aliens during their time in prison and after their release, and whether INS had acted on the recommendations that we made during our July 1997 testimony.

Also, for this report we compared, where appropriate, IHP performance in 1997 to the 1995 data on foreign-born inmates presented in our IHP testimony. We generally used the same methodology for our data collection and analysis that we used for our July 1997 testimony. However, for our 1995 sample we were able to conduct a 16- to 22-month follow-up on the disposition of released inmates. For the 1997 sample, time constraints limited us to doing a 9- to 15-month follow-up. Because 9 months was the common amount of time that all inmates in both samples could be followed up, comparisons between the 1995 and 1997 results are based on a 9-month follow-up period from the time an inmate was released.

We concentrated primarily on the activities of INS—as opposed to EOIR—because INS has the lead role in identifying incarcerated criminal aliens, determining these aliens’ deportability, initiating removal proceedings, and removing aliens from the United States. We focused on IHP activities in the federal BOP and in California, Florida, New York, and Texas, which are four of the five states that were included in our July 1997 IHP study. To identify which released inmates were in or had completed removal proceedings, we asked EOIR to do a computer match of EOIR data with data from BOP and four states on foreign-born aliens released in the first half of 1997. To gather data on aliens released to INS custody and removed, we asked INS to match data for cases with identifying alien numbers (A-number) from BOP and the four states against INS’ Deportable Alien Control System. We asked LESC to query several INS and criminal databases to determine the immigrant and criminal status of released inmates who did not have A-numbers and those who were not matched through EOIR or INS databases.

To assess INS’ efforts to implement the five recommendations that we made in our July 1997 testimony, we interviewed INS headquarters officials and reviewed available documentation. (See app. III for a detailed description of our objectives, scope, and methodology.)

Our work was conducted between November 1997 and September 1998 in accordance with generally accepted government auditing standards.

INS Still Failed to Identify All Deportable Criminal Aliens, Including Aggravated Felons

As was the case when we testified before your Subcommittee in July 1997, we again found that INS had not identified all potentially deportable imprisoned criminal aliens. As a result, INS did not fully comply with the legal requirements that it (1) place criminal aliens who had committed aggravated felonies in removal proceedings while they are incarcerated or (2) take those aggravated felons into custody upon their release from prison.

As we reported in our July 1997 testimony, our analysis of 1995 data on 17,320 foreign-born inmates released from BOP and five state prisons, showed that INS and EOIR did not have records on 5,884 (34 percent) of the released inmates. Therefore, INS was unable to determine whether any of these released inmates were potentially deportable criminal aliens. Of the 5,884 released inmates, INS’ LESC identified 1,899 (32 percent) as potentially deportable criminal aliens on the basis of their immigration status and the nature of their crime. Furthermore, LESC identified 635 (33 percent) of the 1,899 potentially deportable criminal aliens as having committed crimes that were defined in immigration law as aggravated felonies at the time of LESC’s determination. Further review by INS found that 333—more than 50 percent—of the 635 cases were criminal aliens who were potentially eligible for removal; in 45 cases, INS was unable to determine whether the alien was potentially removable. In the remaining 257 cases, INS determined that the inmates were either United States citizens, were deceased, had been granted relief from deportation, or were not released from incarceration. We did not assess the reason for the discrepancy in the two determinations.

Our current analysis of data on 19,639 foreign-born inmates who were released from BOP and four state prisons between January 1 and June 30, 1997, showed that INS and EOIR did not have records on 7,144 (36 percent) of the released inmates. We requested that LESC conduct a search to determine whether any of these released inmates were potentially deportable criminal aliens. Of the 7,144 released inmates, LESC identified 1,903 (27 percent) as potentially deportable criminal aliens on the basis of their immigration status and the nature of their crime. Although aliens meeting these criteria are to be screened by INS; assessed as to their removability; and, as appropriate, put into removal proceedings as expeditiously as possible following their convictions, neither INS’ nor EOIR’s databases indicated that these actions occurred for any of these aliens either while they were in prison or after they were released.

Under the law, INS is required to initiate removal proceedings against aggravated felons while they are in prison and take them into custody upon their release. LESC identified 1,198 (63 percent) of the 1,903 potentially deportable criminal aliens as aggravated felons. Compared to our 1995 results on released foreign-born inmates for whom INS and EOIR did not have records, our 1997 results indicate an increase in aggravated felons. Specifically, for inmates with no records whom LESC determined to be potentially deportable criminal aliens, LESC further found that 33 percent of the 1995 sample were aggravated felons at the time that LESC made its determination, and 63 percent of the 1997 sample were aggravated felons. According to INS, this increase may be due to the additional crimes classified as aggravated felonies in the 1996 Act.

According to the INS and EOIR databases, none of the 1,903 potential deportable criminal aliens had been in removal proceedings while they were in prison or afterward, had been taken into INS custody, or had been deported. LESC provided information on the postrelease criminal activities of the 1,198 aggravated felons as follows:

80 of the 1,198 criminal aliens were rearrested,

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

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

We asked LESC to provide us with information on the nature of the crimes for which the 80 criminal aliens were rearrested. These included crimes such as assault, robbery, and drug offenses. The types of felonies for which the 15 aliens were convicted included crimes mostly involving drug possession, burglary, theft, and robbery.

INS Did Not Complete the IHP for About One-Half of the Released Criminal Aliens, Resulting in Avoidable Detention Costs Amounting to Millions of Dollars

We performed an analysis of data on foreign-born inmates who, according to BOP and the corrections departments of the four states we reviewed, were released from their prison systems during the first 6 months of 1997 and, according to INS and EOIR data, were potentially deportable. There were 12,495 released inmates in this population. We found that about 45 percent of these inmates were released from prison with a final deportation order (having completed the IHP), about 3 percent were released from prison without a deportation order but with INS’ having completed the removal hearing process, and about 36 percent were released from prison before INS completed the process. For the remaining 15 percent of the inmates, there was no indication that hearings were completed either before or after prison release. Figure 1 provides information on the disposition of all the cases that were indicated by INS and EOIR as potentially deportable during 6-month periods in 1997 and 1995.

Compared to our analysis of 1995 data, when INS completed the IHP before release from prison for 43 percent of the 11,436 released inmates who were deemed potentially deportable, INS completed the IHP for 48 percentof such inmates released during the first half of 1997. Furthermore, 40 percent of the 1995 cases completed the IHP with a final deportation order compared to 45 percent of the 1997 cases. Conversely, the percentage of cases completing the hearing process after prison release decreased from 41 percent in 1995 to 36 percent in 1997. Thus, INS made some improvement in completing the IHP for incarcerated aliens; but for the majority of cases, INS still did not complete the hearing process before prison release.

For two states, California and New York, IHP completion rates before prison release were generally the same in our analyses of 1995 and 1997 data. In Texas, IHP completions had increased from 21 percent to 49 percent. In BOP, IHP completions had increased from 33 percent to 48 percent. INS officials told us that they believed these increases could be attributed to enhancements made in 1996 to the IHP in this state and BOP. Our analyses of 1995 and 1997 data showed that completion of IHP hearings in Florida declined from 72 percent to 59 percent. According to INS officials, the 1995 data may reflect an artificially high number of IHP completions due to an April 1994 MOU between Florida and INS. Under the MOU, the Florida Department of Corrections and INS were to establish a demonstration project to identify alien inmates who could have their sentences commuted and subsequently be excluded or deported. According to INS officials, in fiscal year 1995, about 500 alien inmates were identified as deportable through this project. The project was designed to expedite the deportation of certain criminal aliens to help relieve overcrowding in Florida’s correctional institutions. (App. IV shows the disposition of inmates released from BOP and four state prison facilities in greater detail.)

Similar to our 1995 analysis, our current analysis of the 12,495 potentially deportable cases for which INS had records showed that INS was able to quickly remove those deportable aliens who had completed the IHP with final deportation orders before they were released from prison—75 percent were removed from the United States within 1 week of their prison release in both 1995 and 1997. During both time periods, at least 92 percent of such cases were removed in less than 1 month. Our analyses also showed that of the aliens for whom INS started removal hearings before prison release and completed the hearings after release, 68 percent of the aliens were removed in less than 1 month in 1995, compared to 66 percent in 1997. However, there was a notable improvement in removal time for aliens for whom INS started and completed the hearing process after their release from prison. Specifically, in 1995, 36 percent of such aliens were removed within 1 month, compared to 59 percent in 1997. INS and EOIR officials said that the improvement may be due to an increase in the immigration law judge time spent at INS detention facilities since 1995. The INS officials said that the improvement also may be attributable to their ability to obtain travel documents more readily than in the past from some countries that had been considered difficult. (App. V shows the time that elapsed between release from prison and deportation for those aliens who were removed.)

Not completing removal proceedings during incarceration means that INS has to use its limited detention space to house released criminal aliens rather than using the space to detain other aliens. INS has acknowledged that it incurs detention costs for housing these aliens, costs that our analyses showed could be avoided. Our analysis of fiscal year 1995 data showed that detention costs of about $37 million could have been avoided for criminal aliens who completed the hearing process after prison release and were deported within 9 months of release. Our analysis of fiscal year 1997 data showed that INS could have avoided about $40 million in detention costs for such cases.

INS Had Not Fully Implemented Our 1997 Recommendations for Program Improvements

We concluded in our July 1997 testimony that if fully implemented, the IHP would be an effective way to achieve the requirements of the law regarding the timely deportation of eligible criminal aliens. We also stated that INS had not processed aliens in a way that would ensure optimum performance results and that INS did not have a systematic basis for determining the performance results it could accomplish with various resource levels. We recommended steps that INS could take to improve the operations of and outcomes from the IHP to include establishing a nationwide database, establishing controls to ensure that proceedings for aggravated felons are inititated before release from prison, addressing certain resource issues, and improving management oversight. In a December 1997 letter to your Subcommittee, INS stated that it planned to act on our recommendations. INS has taken some action on most of the recommended program improvements; however, none of these actions had been fully implemented as of September 1998.

INS Is Piloting a BOP Nationwide Database

We stated in our July 1997 testimony that INS needed better information about prison inmates—more specifically, information about which inmates are eligible for the IHP and which of these inmates have been and have not been included in the program. Our work at that time showed that INS’ databases did not contain complete and current information on the IHP status of individual foreign-born inmates at any given point in time. INS could use this information to determine which of the released foreign-born inmates had been screened for the IHP, identified as deportable, or placed in the hearing process. We recommended that the Commissioner of INS establish a nationwide data system containing the universe of foreign-born inmates reported to INS by BOP and the state departments of corrections and use this system to track the IHP status of each inmate.

In a December 1997 letter responding to our recommendations, INS told your Subcommittee that it recognized the need to automate its processes for identifying and tracking its processing and removal of criminal aliens. INS has begun an effort to establish an automated federal IHP tracking system that is to capture information, such as name, date of birth, country of birth, and A-number, if available, on foreign-born inmates in BOP correctional facilities. This information is to be used to perform record checks in other databases to make a determination on an alien’s removability. As currently designed, the tracking system does not include information on removal hearings, nor does it capture data on whether aliens have been removed. According to INS, it plans to augment the tracking system by making it compatible with another system that is to include this information. We did not assess the feasibility of making the systems compatible. Also, INS officials told us that the plan is to expand this system to include state IHP programs, but no action had been taken as of June 1998 to determine whether the tracking system could be adapted to state data systems.

INS is in the process of developing, testing, and implementing the tracking system at federal facilities. According to an INS official, the tracking system was pilot tested at INS’ Oakdale, LA, federal IHP site between March and June, 1998. The official also said that the tracking system was implemented at three federal IHP locations, including Oakdale, as of the end of fiscal year 1998, and that INS expects to have the tracking system operational at all remaining federal IHP locations during fiscal year 1999.

According to INS’ project manager, $1.6 million was allocated in fiscal year 1998 to develop the tracking system and make it operational at four federal locations. Funding levels for fiscal year 1999 were still tentative as of September 1998 because INS’ appropriations bill had not been enacted.

INS Had Not Established Controls to Ensure That Proceedings for Aggravated Felons Are Initiated Before Prison Release

The law requires INS to take certain actions regarding criminal aliens who have been convicted of aggravated felonies beyond those actions required for other criminal aliens. As previously mentioned, INS is required by law to initiate and, to the extent possible, complete removal proceedings against aggravated felons while they are incarcerated and to take these felons into custody upon their release. Our work showed, as it did in July 1997, that INS had not complied fully with the required provisions of the law.

In our July 1997 testimony, we recommended that the Commissioner of INS give priority to aliens serving time for aggravated felonies by establishing controls to ensure that these aliens (1) are identified from among the universe of foreign-born inmates provided by BOP and the states, (2) are placed into removal proceedings while in prison, and (3) are taken into custody upon their release. In its December 1997 letter to the Subcommittee, INS stated that a control system to single out aggravated felons as a unique group was not needed since INS should be screening all foreign-born inmates as they enter the prison systems.

We asked INS to explain our finding that aggravated felons had been released from prison into communities without INS’ having identified them. According to INS officials, to provide an accurate accounting for these cases, they would need to conduct individual case reviews. They thought the aggravated felons in our sample may not have been identified by INS agents for two reasons. First, the officials said that a backlog exists for cases from previous years when INS did not screen all foreign-born inmates when they entered the prison systems. INS had each of its regional offices submit a plan to address the backlog in the seven states with the highest concentration of foreign-born inmates. According to INS, these backlog cases are to be addressed by December 1998. Second, the officials said that resources for the IHP are inadequate to address the increasing number of aliens being incarcerated. If IHP resources are inadequate, we believe that the risk of aggravated felons being released into communities will persist unless INS establishes controls to ensure that these felons are identified.

Resource Issues Related to the IHP Had Not Been Fully Addressed

INS received additional funding for the removal of criminal and noncriminal deportable aliens in fiscal year 1997, which included the IHP, but did not request or receive additional funding in fiscal year 1998. To address the need for more IHP resources, INS requested $31 million for the IHP in the fiscal year 1999 President’s budget to aid in INS’ efforts to identify criminal aliens for removal. In the budget request, INS stated that additional program enhancements, such as increased investigations and detention staff, video capabilities for conducting hearings, and detention vehicles to transport aliens, are required to address the growth of incarcerated criminal alien populations at existing program sites and to expand into new locations where prison populations are growing.

In our July 1997 testimony, we reported to your Subcommittee that INS had established IHP performance goals without having a systematic basis for determining the performance results it could accomplish with various resource levels. We reported that INS had not developed a uniform method for projecting the resources it would need—taking into consideration the level of cooperation from BOP and the states—to achieve its overall goal of completing removal proceedings for every eligible foreign-born inmate before release from prison.

In our July 1997 testimony, we recommended that the Commissioner of INS (1) develop a workload analysis model to identify the IHP resources needed in any period to achieve overall program goals and the portion of those goals that would be achievable with alternative levels of resources and (2) use the model to support its IHP funding and staffing requests. Such a model was to consider several factors, including the number of foreign-born inmates, number of prisons that must be visited, number and types of IHP staff, length of time to process cases, and travel time and costs. In June 1998, a draft workload analysis model was submitted to the Office of the Executive Associate Commissioner for Field Operations. The model contains a detailed analysis of the tasks involved in identifying, processing, detaining, and removing incarcerated aliens and the average amount of time associated with each task. INS staff visited 23 locations in 5 states and 3 federal facilities to develop the model. As of September 1998, the draft workload analysis model had not been approved; thus, INS had not yet used it to make determinations about IHP funding and staffing needs.

We also reported in our July 1997 testimony that INS had a 30-percent attrition rate for immigration agents, which was significantly higher than the 11-percent average attrition rate for all INS staff. We recommended that the Commissioner identify the causes of immigration agent attrition and take steps to ensure that staffing was adequate to achieve IHP program goals. INS officials told us that the attrition rate for immigration agents during fiscal year 1997 was 32 percent; thus, the problem had not been resolved. INS has identified what it believes are the causes for the high attrition rate but has not determined the appropriate solution to the problem. According to INS officials, one reason for the high attrition rate was that immigration agents who were hired to staff the IHP often left for potentially better paying positions within INS, such as the special agent position. Benefits and advancement opportunities for immigration agents are limited, but these agents often possess many of the qualifications required for INS positions with greater pay and advancement potential.

Thus, immigration agents are competitive for filling vacancies in those potentially better paying positions. The IHP workload analysis plan previously mentioned included a recommendation that a group be formed to conduct an in-depth review of the immigration agent position situation. As part of the IHP workload analysis, INS is also considering several options for staffing the IHP, one of which would be to eliminate the immigration agent position and use deportation officers to process IHP cases.

Better Management Oversight Still Needed

We reported to your Subcommittee in July 1997 that INS’ top management (1) had not formally communicated to the district directors how additional staff (e.g., newly hired immigration agents) should be used in the IHP; (2) did not ensure that specific operational goals were established for each INS district director with IHP responsibilities; and (3) did not respond with specific corrective actions when it became apparent that the program would not achieve its goals for fiscal year 1996.

Therefore, we recommended that INS establish and effectively communicate a clear policy on the role of special agents in the IHP (e.g., whether immigration agents were replacements for or supplements to special agents). We also said that INS should use a workload analysis model to set IHP goals for district directors with IHP responsibilities. Furthermore, we said that if it appeared that IHP goals would not be met, INS should document actions taken to correct the problem.

In its December 1997 letter to your Subcommittee, INS stated that the role of special agents in the IHP had been communicated to regional and district directors. The Office of Field Operations sent a memorandum to field managers in October 1997 to clarify the use of special agents in the IHP and define the amount of time special agents could devote to IHP work on the basis of their grade level. However, the memorandum did not clarify the issue that we had raised in our July 1997 testimony, that is, whether immigration agents were replacements for or supplements to special agents in doing IHP work. INS is currently reviewing the structure and staffing of the IHP and the results of this review may affect the role of immigration agents.

INS stated in its December 1997 letter that it establishes regional goals that represent a composite of the individual district’s goals. An INS official told us that INS management prefers that the regional directors have the flexibility to manage the district goals and resources. Our current work found that INS had not set IHP goals for district directors in either fiscal year 1997 or 1998. Furthermore, for fiscal year 1998, INS did not set goals for regional directors. Servicewide IHP goals were not communicated to regional directors until February 1998. According to an INS official, the goals were not finalized until February because INS’ position allocations for fiscal year 1998 were not completed until December 1997, and the agency was trying to transition from its former priorities management system to a results-oriented system so that it would be more consistent with the requirements of the Government Performance and Results Act.

In its December 1997 letter to the Subcommittee, INS did not specifically address the recommendation to document actions taken by the agency when it appeared that IHP goals would not be met. INS set a fiscal year 1998 servicewide goal to remove 16,800 criminal aliens through the IHP. At its May 1998 midyear review to assess whether targeted goals were being met, INS realized that it might have difficulty meeting this goal. Following the midyear review, the Commissioner of INS requested that the regional directors develop plans for increasing criminal removals for the remainder of the fiscal year and submit these plans to the Office of Policy and Planning. According to an INS official, the plans were to be reviewed by the Office of Policy and Planning and were to be used as a benchmark for the August 1998 review of the IHP goals.

Conclusions

INS has shown limited improvement in its IHP performance on the basis of our analysis of its 1997 program performance. This, coupled with INS’ limited progress in fully implementing our recommendations, suggests that INS still does not know whether it has identified all potentially deportable criminal aliens in the BOP and state prison systems. More importantly, INS still is not doing all it should to ensure that it is initiating removal proceedings for aggravated felons and taking the felons into custody upon their release from prison. We continue to believe that the recommendations we made in our 1997 testimony are valid and that INS should fully implement them as soon as possible.

Agency Comments

We provided INS with a draft of the report and on September 11, 1998, we met with INS’ Executive Associate Commissioner for Field Operations and other officials from INS’ Offices of Field Operations, General Counsel, Policy and Planning, Internal Audit, and Congressional Relations to discuss its contents. They generally concurred with our findings and provided technical comments that we incorporated where appropriate.

We are sending copies of this report to the INS Commissioner, the Attorney General, the Chairmen and Ranking Minority Members of the House and Senate Appropriations Committees, the Chairman and Ranking Minority Member of the Senate Subcommittee on Immigration, and the Director of the Office of Management and Budget. Copies will also be made available to others upon request.

Major contributors to this report are listed in appendix VII. If you have any questions about this report, please contact me on (202) 512-8777.

Definitions of “Aliens” and “Criminal Aliens”

Aliens

Aliens are individuals who are not citizens of the United States, regardless of whether their immigration status is legal or illegal. Legal aliens include (1) immigrants who entered the country with valid visas and were later granted resident status by INS and (2) nonimmigrants, such as students, tourists, temporary workers, and business visitors who do not violate the conditions of their visas. Illegal aliens include those who (1) enter the country without visas or passports; (2) do not present themselves for inspection by INS; (3) enter the country using fraudulent documents; and (4) are nonimmigrants who have violated a condition of their visas, such as remaining in the country beyond the authorized period of time.

Criminal Aliens

The term criminal aliens, as used in this report, includes all aliens, legally or illegally residing in the country, who have been convicted of a crime. In some cases, the aliens’ crime may not warrant removal.

The IHP Process

Figure II.1: Flowchart of INS’ IHP Process for Removal Proceedings INS?

Objectives, Scope, and Methodology

Following our testimony in July 1997 on the Immigration and Naturalization Service’s (INS) Institutional Hearing Program (IHP), the Chairman of the House Subcommittee on Immigration and Claims requested that we continue to monitor the IHP and evaluate its effectiveness. To accomplish this, we determined the extent to which deportable criminal aliens were included in the IHP, the extent to which INS completed removal hearings for deportable aliens during their time in prison or after their prison release, and whether INS had acted on recommenations that we made in our July 1997 testimony.

We analyzed IHP results for the federal Bureau of Prisons (BOP) and the corrections systems of four states—California, Florida, New York, and Texas. We analyzed these locations because they were included in our previous 1997 testimony regarding INS’ IHP efforts and they were of specific interest to the requester.

To determine whether INS had improved its IHP performance, we gathered and analyzed data for inmates released from January to June, 1997, as a comparison to our past IHP analysis for inmates released from April to September, 1995. We concentrated on INS—as opposed to the Executive Office for Immigration Review (EOIR), which makes adjudicative decisions regarding deportability—because INS has the lead role in identifying incarcerated criminal aliens, determining their deportability, and initiating removal proceedings.

We sought to determine the extent to which IHP-eligible inmates were placed into removal proceedings, completed the IHP process, and were removed from the United States upon release from prison. To answer these questions, we obtained data from BOP and correctional departments in four states on all foreign-born inmates released from January through June, 1997. The data from the January to June, 1997, period are considered to be representative of the entire year. We did not determine the completeness or accuracy of the lists of foreign-born inmates provided to us. We asked INS to conduct a computer match of the records with identifying alien numbers (A-number) against information in its Deportable Alien Control System (DACS) to identify those released foreign-born inmates who were taken into INS custody upon their release from prison, were detained, or were removed from the United States.

For this review, we did not independently assess the reliability of DACS data, although we did ask INS about what, if any, quality controls and procedures were used to ensure the reliability of those data elements that we used in this review. The data elements included whether the alien (1) was taken into custody or detained, (2) was issued a final deportation order, and (3) was removed. INS personnel who operate and manage the DACS database responded that both the accuracy and completeness of these data elements in DACS are good. They stated that supervisors perform random checks on DACS data each time an officer submits a case for review. Further, they reported that all of these data elements are entered into DACS, but that depending on the complexity of the case, there may be some lag time between the occurrence of events and input of data into DACS.

We also asked EOIR to conduct a computer match of the records against information in its Automated Nationwide System for Immigration Review to identify those released foreign-born inmates who had been in removal proceedings. Again, we did not independently assess the database’s reliability, but we asked EOIR about what, if any, quality controls and procedures were used to ensure the reliability of those data elements that we used in this review. The data elements included (1) whether the alien was placed in removal proceedings and (2) the outcome of the proceedings. EOIR personnel who operate and manage the agency’s automated system responded that the accuracy and completeness of the data fields are superior, with error rates being less than 1 percent. They stated that reports to verify data accuracy are run daily, weekly, and monthly and that EOIR staff are held to high performance standards with respect to data integrity.

From these data matches, we determined for BOP and four states how many of the foreign-born inmates were included in and completed the IHP before prison release, how many completed removal proceedings within 9 months after release, and how many had started but had not completed proceedings within 9 months after their release from prison. For those who were issued a final order of deportation, we were able to determine how many had been removed from the United States through March 1998. We selected the January through June, 1997, time frame because we wanted data that were relatively recent and at the same time sufficiently in the past so that we could follow up on released criminal aliens and determine whether they had completed removal proceedings and had been removed from the United States.

In addition, we sought to compare IHP results for January to June, 1997, with the results of our previous analysis of April to September, 1995, data. We analyzed the 1995 and 1997 data the same to be able to directly compare program performance. To make the information comparable, we used a follow-up period of 9 months after prison release for all inmates in the 1995 and 1997 samples. We did this because 9 months was the maximum amount of time that all inmates in both samples had the opportunity to be followed up.

Of the 19,639 foreign-born released inmates, 7,144 were not in either INS’ or EOIR’s database. We sought to determine the extent to which this sizable, unmatched group consisted of (1) U.S. citizens who were not candidates for the IHP or (2) criminal aliens who should have been, but were not, included in the IHP and who were released from prison without being taken into INS custody.

To determine the composition of the group of 7,144 unmatched cases, we asked the Law Enforcement Support Center (LESC)—an INS unit that conducts database searches for local law enforcement agencies to determine whether arrested individuals are criminal aliens—to individually search the 7,144 unmatched cases with information contained in 6 INS databases, the Federal Bureau of Investigation’s National Crime Information Center, and state criminal history databases. The results enabled us to determine (1) how many individuals were U.S. citizens and, therefore, ineligible for the IHP; (2) how many individuals were deportable criminal aliens who were released from prisons; (3) whether any identified criminal aliens had been convicted of committing an aggravated felony; and (4) whether any identified criminal aliens had committed additional crimes, including aggravated felonies, since their prison release.

To determine what actions INS took to improve the effectiveness of the IHP, we reviewed INS’ planning documents pertaining to the removal of criminal aliens and the IHP’s annual goals. We interviewed INS officials about actions the agency had taken or planned to take to implement our recommendations for improving IHP performance results.

Disposition of Potentially Deportable Inmates Released From BOP and Selected States’ Prisons During 6-Month Periods in 1997 and 1995

Figure IV.1: Disposition of Potentially Deportable Inmates Released From BOP and Four States’ Prisons During a 6-Month Period in 1997 (Jan.-June)

Figure IV.2: Disposition of Potentially Deportable Inmates Released From BOP and Five States’ Prisons During a 6-Month Period in 1995 (Apr.-Sept.)

Table V.1: Time From Release to Deportation for Aliens Released From BOP and Four States’ Prisons During a 6-Month Period in 1997 With Final Deportation Orders Less than 1 percent.

Table V.2: Time From Release to Deportation for Aliens Released From BOP and Five States’ Prisons During a 6-Month Period in 1995 With Final Deportation Orders

Less than 1 percent.

GAO Estimate of Avoidable Detention Costs

Because most criminal aliens released from state and federal prisons in fiscal year 1997 had not completed the IHP, INS needed to detain these aliens until their removal hearings could be completed. This situation placed unnecessary demands on INS’ limited detention space and, as shown below, cost INS over $40 million over a 9-month period that could have been avoided.

Criminal aliens released to INS from prison without (N=22,974) (N=20,118)

Total avoidable fiscal year detention cost (FY 1997) (FY 1995)

Note 1: These data are based on aliens who were deported within 9 months of release from prison.

Note 2: INS revised its procedures for tracking alien travel, detention, and welfare costs. The revised procedures, effective fiscal year 1997, eliminated certain types of costs that were previously part of the daily detention costs, added some costs that had not been included previously, and classified some of the same costs in different categories.

We used our sample results to estimate total avoidable detention costs nationwide for criminal aliens released from prisons to INS without final deportation orders. Our calculations were based on criminal aliens in our 1995 and 1997 samples who completed removal proceedings and were deported within 9 months of release from prison. Using these data and information from INS on the total number of criminal aliens released to INS in 1995 and 1997 without final deportation orders, we derived separate nationwide cost estimates for detaining criminal aliens (1) who started proceedings before prison, completed them after prison, and were deported within 9 months of prison release and (2) who started and completed proceedings after prison and were deported within 9 months of prison release.

Our sample of 12,495 potentially deportable criminal aliens released from BOP and four states’ prisons during the first half of 1997 included 6,450 inmates who were released to INS without INS’ having completed the inmates’ hearing process while they were in prison. Nationwide, INS reported that in all of fiscal year 1997, a total of 22,974 such inmates were released into its custody. Of the 6,450 released inmates that we studied, 3,477 inmates had received deportation orders and were deported within 9 months of prison release. We were able to determine for 3,477 of these released inmates both the average number of days detained by INS and whether the hearing process started before or after prison release. Of the 3,477 inmates, 88 percent started removal proceedings in prison, and they were held for an average of 34 days. The remaining 12 percent of these inmates started removal proceedings after prison release and were held for an average of 41 days. For the remaining 2,973 inmates in our study, we assumed that the timing of removal proceedings and the average number of days in INS detention were similar. The 2,973 inmates included (1) 1,932 inmates for whom there was no evidence that the hearing process was completed, (2) 507 inmates for whom the hearing process was completed after release from prison and no deportation order was issued, and (3) 534 inmates for whom the hearing process was completed after release from prison and a deportation order was issued. These data provide the estimate that for 88 percent, or 20,217 of the 22,974 released inmates, INS would have begun their hearing process before release, and that for the remaining 2,757 released inmates, INS would have begun their hearing process after release.

To determine the avoidable detention cost, we subtracted 8 days from each of the observed detention times because this was the average detention time for criminal aliens who completed the IHP with final deportation orders. According to INS, the average daily cost to detain a single alien was $65.61 in fiscal year 1997.

To compare avoidable detention costs in 1997 with 1995, we dropped all cases from both of our 1997 and 1995 samples in which aliens had been out of prison for longer than 9 months. This was because 9 months was the maximum amount of time that every foreign-born inmate in both samples was followed up in our study. Using a weighted average, we found that in fiscal year 1995, INS could have avoided over $37 million in detention costs. In 1995, the average detention time for criminal aliens who completed the IHP with final deportation orders was 9 days, the average daily detention cost was $1.16 per alien higher in 1997, and the number of aliens who were detained and deported within 9 months of release was nearly 3,000 less than in 1997.

At least some of the savings in detention costs that INS could realize by processing more criminal aliens through the IHP would be offset by any additional funding that might be required to provide additional resources for the IHP.

Major Contributors to This Report

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