APPENDIX E

 

The Executive Office of Immigration Review's Comments on the
Office of the Inspector General's Report "Voluntary Departure: Ineffective Enforcement and Lack of Sufficient Controls Hamper the Process"

Report Number I-99-09

Executive Office for Immigration Review Response to Draft Report - Page 1

Executive Office for Immigration Review Response to Draft Report - Page 2

Executive Office for Immigration Review Response to Draft Report - Page 3

Executive Office for Immigration Review Response to Draft Report - Page 4

Executive Office for Immigration Review Response to Draft Report - Page 5

Executive Office for Immigration Review Response to Draft Report - Page 6

Executive Office for Immigration Review Response to Draft Report - Page 7

 

 

APPENDIX F

 

OFFICE OF THE INSPECTOR GENERAL’S ANALYSIS
OF MANAGEMENT’S RESPONSE

 

On January 15, 1999, the Inspections Division sent copies of the draft report to the Immigration and Naturalization Service (INS) and the Executive Office for Immigration Review (EOIR) requesting written comments on the draft report findings and recommendations.1  We asked that each component’s response include agreement or disagreement with our recommendations, how recommended actions will be carried out, and any time frames for planned actions. In the event that a recommendation cannot be implemented or alternative actions are more appropriate, we requested an explanation in the response.

The Inspections Division did not receive a response to the draft report from INS. Consequently, all four recommendations addressed to INS are unresolved. We will continue to work with INS to elicit their comments and planned actions to meet the recommendations.

The Director of EOIR responded to the draft report by memorandum on March 10, 1999. EOIR stated that it is “currently reviewing its policies and procedures in the areas where the draft report raises concern and will promptly address those areas to the greatest extent possible within the scope of our authority.” While this is an important first step in addressing the issues raised in the report, the response does not specifically state whether EOIR intends to implement our specific recommendations and, if not, what alternative courses of action they propose. Because of this, two of the four recommendations are unresolved.

EOIR raised a number of general points in addition to its specific comments on the recommendations. In particular, EOIR discussed the role of immigration judges as independent decision-makers and noted that no evidence is presented in the report indicating that any immigration judge acted outside of his or her authority. We agree. However, while immigration judges are currently following the letter of the law and regulations, we believe they could do more to prevent the problems identified in this report. Currently, immigration judges grant voluntary departure to some ineligible aliens and many aliens granted voluntary departure by immigration judges appear not to leave the United States. Immigration judges are in a unique position to review aliens’ criminal histories in court proceedings to ensure that no aggravated felons receive a grant of voluntary departure. We think it is reasonable to expect EOIR immigration judges to do all in their power to help ensure that the intent of the law and regulations are upheld. For example, immigration judges could refuse to grant voluntary departure unless the results of an NCIC criminal history check had been introduced as evidence.

EOIR expressed concern that our sample includes both pre-IIRIRA and post-IIRIRA cases. However, as stated in our methodology appendix, we have analyzed each finding to ensure that this does not affect any of our conclusions. Regarding voluntary departure bonds -- the only “mandated condition” required by IIRIRA -- we explicitly indicate whether bonds were set in pre-IIRIRA or post-IIRIRA cases (page 20). Therefore, we do not believe our data will lead readers to mistaken inferences.

Based on EOIR’s comments, we made minor technical changes in the report to clarify the use of the term cancellation of removal. We would also like to note that we had previously included in the report a footnote defining cancellation of removal based on earlier feedback from EOIR.

Recommendation Number:

  1. Unresolved. EOIR’s reply was not responsive. Its response did not define the regulatory change that it has told us would be required, did not indicate whether EOIR would act to seek such a change, and did not indicate whether EOIR would adopt the interim measures we suggested or propose alternatives for our consideration. EOIR should clarify its response to address more specifically these issues and to indicate whether it intends to take any action to reduce the instances in which aliens with disqualifying criminal records are granted voluntary departure by immigration judges. We will consider its revised response along with INS’s responses to related recommendations, when INS furnishes them.
  1. Closed. In light of our finding that many aliens granted voluntary departure appear not to leave, we consider it desirable and within the discretion of immigration judges to request corroborating evidence for oral testimony. EOIR responded that “credible testimony by the alien is considered sufficient to sustain the alien’s burden of proof. This is supported by BIA {Board of Immigration Appeals} case law and the prevailing regulations.” Our recommendation was intended as a suggestion that the Director provide guidance to the judges to increase the likelihood that aliens will leave the country once granted voluntary departure. We have decided not to make a formal recommendation on this matter. No further action is required by EOIR.
  1. Resolved-Open. We recommended that the EOIR Director, once INS establishes a departure verification system, require immigration judges to provide information and instructions, including any applicable forms, to aliens on how to verify their departure. EOIR responded that they will comply with any regulatory requirement to provide information or forms to an alien granted voluntary departure.
  1. Unresolved. We recommended that the EOIR Director provide clarifying guidance that immigration judges should set voluntary departure bonds to increase the likelihood that aliens will leave the country since our report found that many aliens granted voluntary departure appear not to leave.

EOIR responded that immigration judges must evaluate cases on their own merits, and that it believes that the agency provides sufficient training, including instruction on the procedures for granting voluntary departure, to the judges. However, our findings indicate that, both before and after the passage of IIRIRA, immigration judges rarely set voluntary departure bonds. Immigration judges attached voluntary departure bonds to only 16 out of 334 voluntary departure cases in our sample. We believe that immigration judges would benefit from guidance showing the potential enforcement value of attaching bonds to voluntary departure orders at any time during proceedings.

Please provide clarification as to whether EOIR plans to take any action to meet this recommendation. If EOIR believes that its training of immigration judges is sufficient to meet this recommendation, please provide us with the training materials and information on how frequently this training is conducted.


1 As part of our report process, we provided INS and EOIR with preliminary working drafts of our report in November 1998. We then conducted exit conferences with representatives from each component on December 3, 1998, to discuss our findings and recommendations.

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