We reviewed the implementation of voluntary departure by INS district officials and EOIR immigration judges. We interviewed officials at INS headquarters in Washington, D.C., including the General Counsel, the Executive Associate Commissioner for Policy and Planning, and senior level officials in the Programs and Information Resources Management offices. At EOIR headquarters in Falls Church, Virginia, we interviewed senior officials including the General Counsel, the Chief Immigration Judge, and the Chief Attorney Examiner for the Board of Immigration Appeals.
In selecting sites to visit for this inspection, we used EOIR caseload and INS apprehension data to identify locations in which there were significant numbers of both EOIR removal proceedings cases and voluntary departures granted by INS district officers. The four districts we chose, Los Angeles, CA, San Francisco, CA, New York, NY, and Washington, D.C., were among the locations with the highest EOIR workload during fiscal year 1997, and all but Washington, D.C., also had large numbers of INS apprehensions. Taken together, the four districts we visited represented 28 percent of the EOIR removal cases in which the alien requested voluntary departure for fiscal year 1997, and 32 percent of all fiscal year 1997 apprehensions by INS district officers.
In March and April of 1998, we conducted field site visits of both INS and EOIR in each of the four districts we selected.32 At the four INS districts, we interviewed district directors; assistant district directors for investigations, detention and deportation, and examinations; and district counsels and trial attorneys. At the EOIR courts in each of the four districts, we interviewed immigration judges and court administrators and observed removal proceedings.
In addition to our interviews and site visits, we used three different data sets from INS headquarters and the four district offices to assess the implementation of voluntary departure. It was necessary to utilize different data sets to answer all of our researchable questions. Each data set is described below.
To test whether aliens were eligible for voluntary departure (e.g., criminal history checks) and whether aliens granted voluntary departure by immigration judges actually leave the United States, we took four samples from an EOIR data base of 82,486 removal proceedings cases. These samples, randomly selected from each of our four field site locations, consisted of 440 aliens in removal proceedings who had requested voluntary departure between October 1, 1996, and December 15, 1997. Out of the440 cases in these samples, 334 aliens were granted voluntary departure by immigration judges. These samples had precision rates of plus or minus 5 percent, confidence levels of 95 percent, and estimated error rates not to exceed 10 percent.
For the 334 cases, at our four field sites, we reviewed the INS alien files and EOIR case files. We examined the files for documentation of criminal and other eligibility checks by INS and EOIR personnel and evidence of the aliens' departure from the United States. We also entered the aliens in these samples into INS's Deportable Alien Control System (DACS), Central Index System (CIS), and Non-Immigrant Information System (NIIS) data bases to check for any further information on eligibility and departure.
In order to determine whether or not immigration judges grant voluntary departure to convicted criminals, we selected a random sample of 343 voluntary departure grants from the national EOIR data base. These cases were selected from the third and fourth quarters of fiscal year 1997. This sample had a precision rate of plus or minus 3 percent, a confidence level of 95 percent, and an estimated error rate not to exceed 10 percent. We checked this sample against the records of the FBI's National Crime Information Center (NCIC) data base in order to determine if aliens with criminal histories had been granted voluntary departure.33 We also entered this sample into the INS data bases DACS, CIS, and NIIS to search for further information.
Finally, we tested whether or not INS could document that aliens granted voluntary departure by INS district officers were actually removed. At the four INS district offices we visited, we requested the Record of Deportable Alien forms (the I-213s) and the Record of Persons and Property Transferred forms, or INS's paper transportation log, (the I-216s) for the months of October 1997 and February 1998. From the four districts, we received a total of 708 Record of Deportable Alien forms. By comparing the two forms, we sought to verify that INS district officers escorted out of the United States the aliens granted voluntary departure in each district in those months. We checked those Record of Deportable Alien forms for which we had alien numbers in DACS for additional removal verification. We also used this sample to test for evidence of eligibility checks. The Record of Deportable Alien form includes blocks for the apprehending officer to check noting that he or she has performed criminal checks. In addition, we tested a portion of this sample against NCIC to determine whether these aliens had any criminal history.
We did not review voluntary departures granted by Border Patrol agents, although we relied upon the findings of two 1998 Office of the Inspector General, Inspections Division reports about Border Patrol operations, Border Patrol Drug Interdiction Activitieson the Southwest Border, number I-98-20 issued in September, and Review of the Immigration and Naturalization Service's Automated Biometric Identification System (IDENT), number I-98-10, issued in March.
We did not report on the requirement that an alien must never have engaged in terrorist activity in our consideration of eligibility criteria. While the ability of INS district officers to check aliens' terrorist backgrounds is a serious concern and worthy of further study, we did not address this issue in this report.
Initially, we intended to compare pre-IIRIRA (old law) and post-IIRIRA (new law) implementation but decided not to pursue this analysis so early in the implementation of the new law. For this reason, our four samples from the four field site locations (a total of 440 cases) do consist of both old law cases (307 cases or 70 percent of the total) and new law cases (133 cases or 30 percent of the total). However, we have sufficiently analyzed each finding to ensure that this does not have an impact on any of our conclusions nor our characterization of the state of implementation of voluntary departure. Where such a distinction is necessary to understand the finding or important in making a point, we have noted so in the text. The other sample of 343 cases taken from the EOIR database are all post-IIRIRA (new law) cases.
THE INS DEFINITION OF AGGRAVATED FELONY
The Immigration and Nationality Act, in section 101(a)(43), 8 U.S.C. 1101(a)(43) defines aggravated felonies to include:
- sexual abuse of a minor;
- any drug trafficking crime as defined in 18 U.S.C. 924(c)(2);
- illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. 92 or in explosive materials as defined in section 841(c) of that title;
- laundering of monetary instruments as defined in 18 U.S.C. section 1956 or engaging in monetary transactions in property, as defined in section 1957 of that title, derived from specific unlawful activity if the amount of the funds exceeded $10,000;
- explosive materials offenses as described in 18 U.S.C. section 842(h) or (i) or section 844 (d), (e), (f), (g), (h), or (i);
- firearms offenses as described in 18 U.S.C. section 922(g) (1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or section 924 (b) or (h);
- firearms offenses described in section 5861 of the Internal Revenue Code of 1986; crimes of violence, as defined 18 U.S.C. section 16 (but not including purely political offenses), for which the term of imprisonment was at least one year;
- theft offenses, including the receipt of stolen property, or burglary offenses for which the term of imprisonment was at least one year; offenses relating to the demand or receipt of ransom as described in 18 U.S.C. section 875,876,877, or 1202;
- offenses relating to child pornography as described in 18 U.S.C. section 2251,2251a, or 2252;
- offenses described in 18 U.S.C. section 1962 (relating to racketeer-influenced corrupt organizations), or offenses described in section 1084 (if it is the second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
- offenses relating to the owning, controlling, managing, or supervising of prostitution business;
- offenses relating to transportation for the purpose of prostitution if committed for commercial advantage, as described in 18 U.S.C. section 2421, 2422, or 2423; offenses relating to peonage, slavery, and involuntary servitude as described in 18 U.S.C. 1581, 1582, 1583, 1584, 1585, or 1588;
- offenses related to gathering or transmitting national defense information, the disclosure of classified information, sabotage, or treason, as described in 18 U.S.C. sections 793, 798, 2153, 2381, and 2382;
- offenses relating to protecting the identity of undercover intelligence agents, as described in section 601 of the National Security Act of 1947 (50 U.S.C. 421);
- offenses relating to protecting the identity of undercover agents, as described in section 601 of the National Security Act of 1947;
- offenses involving fraud or deceit in which the loss to the victim exceeds $10,000; offenses described in section 7201 of the Internal Revenue Code of 1986 in which the loss to the government exceeds $10,000;
- offenses related to alien smuggling, except in the case of a first offense which was committed for the purpose of assisting, abetting, or aiding a spouse, child, or parent;
- offenses relating to falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of 18 U.S.C. section 1543, or is described in section 1546(a) of that title and for which the term of imprisonment is at least 12 months, except in the case of a first offense committed for the purpose of assisting, abetting, or aiding a spouse, child, or parent;
- offenses relating to failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of five years or more;
- offenses relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
- offenses relating to obstruction of justice, perjury, or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
- offenses relating to failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of two years' imprisonment or more may be imposed;
- an attempt or conspiracy to commit any of the above described offenses; and
- foreign convictions for crimes which would be defined as aggravated felonies if committed in the United States and for which the term of imprisonment was completed within the previous 15 years.
32 We conducted a preliminary field site visit in Baltimore, MD in February of 1998 to test our methods, but we did not use any of the data we collected in Baltimore, MD in the statistics in this report.
33 In NCIC, we checked the Interstate Identification Index and the Wanted Persons file for each case. For Hispanic dual last names, we reversed the order of the names and checked each name individually.