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Immigration and Naturalization Service Institutional Removal Program
Report No. 02-41
Office of the Inspector General
The mission of the Immigration and Naturalization Service (INS) includes the detection, apprehension, and removal of aliens unlawfully present in the United States, particularly those involved in criminal activity. The goal of the Institutional Removal Program (IRP) is to enhance the INS's efforts at identifying removable criminal aliens in federal, state, and local correctional facilities, and initiate deportation proceedings to effect their timely removal.
In 1988, the INS and the Executive Office for Immigration Review (EOIR) established the Institutional Removal Program, then known as the Institutional Hearing Program (IHP). Under the IRP, attorneys, immigration judges, and incarcerated aliens are brought together in a system that is designed to expedite the removal process. The program objectives are to complete the judicial and administrative review proceedings prior to completion of aliens' sentences, thereby eliminating the need for further detention by the INS. Based on the most current information available, the IRP operates at 13 hearing sites at Federal Bureau of Prisons (BOP) facilities; 83 state hearing sites at facilities in 49 states, the District of Columbia, and Puerto Rico; and 4 hearing sites at county facilities in California, Florida, and Massachusetts.
Removal proceedings for incarcerated criminal aliens processed through the IRP begin with the facilities' identification of foreign-born inmates upon their entry into federal, state or county incarceration. Generally, INS district offices are provided with periodic listings of foreign-born inmates from federal and state correctional institutions within their jurisdiction. Such reporting by federal correctional institutions is required; the INS depends on voluntary cooperation from state and local facilities. At the county level, INS district offices must proactively check local booking records of inmates identified as foreign-born for potentially deportable criminal aliens.
INS agents assigned to the IRP, usually immigration agents, conduct on-site interviews with inmates identified by the facility as foreign-born to determine their legal status and deportability. The agents also perform database checks, including but not limited to the INS's Deportable Alien Control System3 (DACS), the INS's Central Index System4 (CIS), and the Federal Bureau of Investigation's National Crime Information Center (NCIC) database, and obtain copies of conviction records and other necessary information to support a removal order. Once an inmate is determined removable, the INS agent files a Notice to Appear (NTA), at which point the Executive Office for Immigration Review (EOIR) is brought into the process culminating in a deportation hearing before an immigration judge, ideally at a designated hearing site within the federal, state, or local prison system. Upon completion of their sentences, deportable aliens are then released into INS custody for immediate removal.
Selection of State and County Facilities
Most of the nation's known foreign-born inmate population (about 80 percent according to INS statistics) is concentrated in seven states: California, New York, Texas, Florida, Arizona, New Jersey, and Washington. We selected California and Florida to perform our site work based on preliminary audit work indicating that coverage (i.e. interviews of foreign-born inmates to determine deportability) by the INS was not as comprehensive in these two states as it was in the other large states for geographic, demographic, and political reasons. As of June 30, 2001, California and Florida ranked first and fourth, respectively, in the number of foreign-born inmates held in state and federal custody, accounting for nearly half of the nation's known population of foreign-born inmates.
In order to assess the effectiveness of the IRP at the county level, we selected Fresno and Kern counties in California, and Broward and Dade counties in Florida for review. Fresno and Kern counties were selected because they are rural counties with intense alien involvement in the surrounding agricultural environment and are sufficiently removed from major INS district offices to make significant and sustained INS coverage difficult. Broward and Dade counties in Florida, conversely, were selected because they are large metropolitan areas with large foreign-born populations and INS offices in close proximity. Local correctional facilities, such as those in Broward, Dade, Fresno, and Kern counties, represent a potentially vast, but largely unknown element with regard to the size of the nation's incarcerated criminal alien population.
Legislative efforts to provide for a more expeditious removal process for criminal aliens first appeared in the Immigration Reform and Control Act of 1986 (IRCA). Specifically, Section 242(i) of the IRCA provided that:
The Anti-Drug Abuse Act of 1988 introduced the term "aggravated felony" into immigration law. Defined in Section 101(a) (43) of the Immigration and Nationality Act (INA), aggravated felonies were initially confined to crimes of violence and those involving illicit trafficking in controlled substances. The term and its legal implications had a profound impact on the INS's workload and detention needs, as the INS was mandated to detain criminal aliens convicted of aggravated felonies from the time they come into INS custody until they receive final orders of removal.
The Immigration Act of 1990 (IMMACT 90), clearly defined the scope of INS responsibility to include criminal aliens at the local level under Section 242A (a), which states that:
The Immigration and Nationality Technical Correction Act of 1994 (INTCA) expanded the definition of aggravated felonies to include lesser crimes such as fraud, burglary, and theft. This trend continued with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Anti-Terrorism and Effective Death Penalty Act (AEPDA), both enacted in 1996, and both of which brought sweeping changes to the immigration laws. The enactment of the IIRIRA and the AEDPA dramatically expanded the definition of removable aliens, mostly involving criminal aliens serving time at the county level.
The definition of aggravated felony was expanded under the AEPDA to include such crimes as commercial bribery, counterfeiting, forgery, perjury and other crimes, while the IIRIRA expanded the definition of aggravated felonies still further by reducing the sentence threshold for certain crimes. More significantly, the AEDPA eliminated relief for legal resident aliens who had been convicted of an aggravated felony, further expanding the pool of deportable criminal aliens.
In addition, the IIRIRA established streamlined procedures for the removal of certain classes of aliens without a formal hearing process: (1) administrative removal allowed the INS to remove criminal aliens convicted of specific classes of offenses without a hearing before an immigration judge; and (2) reinstatement of prior removal order eliminated all EOIR reviews for criminal aliens who were previously deported and subsequently convicted of a crime after re-entry. With these supplemental options, the deportation process now provides for removal without an immigration hearing as two of three possible options.5 In recognition of the fact that the removal of criminal aliens was no longer predicated in all instances on a formal hearing process, as well as the fact that the short time served in county facilities was not conducive to on-site hearings, the name of the program was changed from the Institutional Hearing Program to the Institutional Removal Program.
The OIG previously reviewed IRP operations at the state level in its Audit of INS Select Enforcement Activities, Report No. 95-30, September 26, 1995. The report identified substantial backlogs in the number of foreign-born inmates in state prisons requiring interviews and processing. The California state IRP was identified as the most problematic of the state operations, accounting for over 60 percent of the total backlogs. In addition, the OIG identified over $9 million in funds-to-better use related to detention costs incurred due to inefficiencies in the California state IRP operation. The INS, in response, implemented enhancements to the state IRP operations to ensure that all foreign-born inmates were identified and timely processed if determined to be removable.
The General Accounting Office (GAO) reviewed IRP operations in its audit of Criminal Aliens: INS' Efforts to Remove Imprisoned Aliens Continue to Need Improvement, Report No. GAO/GGD-99-3, October 1998. In addition, the GAO released testimonial Report No. GAO/T-GGD-99-47, February 25, 1999, Criminal Aliens: INS's Efforts to Identify and Remove Imprisoned Aliens Continue to Need Improvement, and testimonial Report No. GAO/T-GGD-99-148, Immigration and Naturalization INS: Overview of Management and Program Challenges, July 29, 1999. The audit and subsequent testimonial reports highlighted the following areas of concern:
The GAO found that, at the state level, the INS failed to identify all aggravated felons. There were two reasons for the failure: (1) the backlogs of foreign-born inmates requiring interviews and processing, as previously reported by the OIG, had not been addressed; and (2) the INS had not allocated the sufficient resources to address the increasing numbers of foreign-born inmates entering the system.
The GAO found that the INS's inability to fully process criminal aliens through the IRP resulted in additional detention costs, as reported in the prior OIG report.
The GAO found that INS management had not taken the steps necessary to determine the level of resources required to adequately staff the IRP. Further, there was no systematic basis for determining performance results that could be accomplished with various resource levels. The GAO stated that the INS lacked specific operational goals and formal communication.
The GAO found that the loss of expertise due to high attrition rates in the IRP hampered the program's effectiveness.