RESULTS OF THE INSPECTION


CRIMINAL HISTORY AND ELIGIBILITY CHECKS ARE NOT PERFORMED CONSISTENTLY

Eligibility requirements for receiving voluntary departure vary depending on whether INS district officers or immigration judges grant it and when it is granted. The law prohibits convicted aggravated felons from receiving voluntary departure, no matter when or by whom voluntary departure is granted.11 However, both INS district officers and immigration judges grant voluntary departure without ensuring that all eligibility criteria are met. Consequently, some ineligible aliens, including criminals, inappropriately receive voluntary departure.

Criminal History Checks Are Not Performed on Every Alien

As a technical matter, neither the law nor the regulations require that INS or EOIR conduct criminal history checks to determine whether or not aliens are aggravated felons. However, the law does prohibit either component from granting voluntary departure to aggravated felons, and such checks are the primary means available to determine an alien's criminal background. INS relies on criminal history checks to ensure that no aggravated felons are granted voluntary departure. Criminal history checks typically include entering the alien's name and birthdate in appropriate state and Federal criminal history data bases, such as those accessed through the FBI's NCIC. In addition, many, although not all, aliens are also fingerprinted during removal proceedings.12  INS headquarters and district officials told us the factors that can influence whether or not officers perform criminal history checks include insufficient time, the number of aliens apprehended at once, access to computer terminals, and lack of detention space.

INS district officers are responsible for performing criminal history checks on aliens who they apprehend and place into EOIR removal proceedings. The role of INS trial attorneys, who represent the U.S. Government in each case, in verifying the completion of these checks is undefined. INS trial attorneys in some districts verify,complete, and submit the checks as evidence, while trial attorneys in other districts may not have the time or the resources to perform these tasks. Regardless, immigration judges depend upon INS to provide them with accurate information on the aliens who appear in their courtrooms. If the results from criminal history checks have not been presented as evidence, immigration judges rely on the attestation of aliens on their criminal backgrounds. Without access to current criminal history checks, immigration judges may grant voluntary departure, or other forms of relief from removal, to aliens who are ineligible.

We found that immigration judges frequently issue their decisions without the benefit of completed criminal history checks. To determine whether criminal history checks were performed on aliens granted voluntary departure by immigration judges, we reviewed 334 cases of aliens who were granted voluntary departure from our four field site locations (see Appendix C, pages 29-30, for an explanation of our data set). As shown in Figure 2, we found no evidence that criminal history checks, using fingerprint-based or name-based systems, had been completed in 262 out of the 334 cases (78 percent). Of the 334 aliens who were granted voluntary departure, we found FBI responses to fingerprint checks in only 21 (6 percent) of the cases.13   We found that checks using name-based criminal history systems had been performed on an additional 51 (15 percent) of our sample.14

Figure 2 - Criminal History Checks Performed in EOIR Removal Proceedings

Source: OIG Sample of INS Alien Files (n=334)

To determine whether INS district officers perform criminal history checks before granting voluntary departure, we collected Record of Deportable Alien forms (I-213s) issued in the four field sites we visited for the months of October 1997 and February 1998. INS uses this form to document each voluntary departure. As Figure 3 demonstrates, we found that only 215 (30 percent) out of 708 of the Record of Deportable Alien forms contained evidence that an INS officer checked for criminal history before granting voluntary departure.15

Figure 3 - Criminal History Checks for INS-Granted Voluntary Departures

Source: OIG Sample of Records of Deportable Alien Forms (n=708)

Voluntary Departure Is Granted to Some Convicted Criminals by INS District Officers and Immigration Judges

Because criminal history checks are not consistently performed, some aggravated felons receive voluntary departure from immigration judges and INS district officers. To determine whether any convicted criminals were inappropriately granted voluntary departure by immigration judges, we performed NCIC checks on a different sample of 343 voluntary departure grants from the EOIR database (see Appendix C, page 30, for a discussion of our data set). We found that 46 (13 percent) of the illegal aliens in this sample had criminal records in NCIC. Of those, 11 aliens (3 percent) were convicted aggravated felons. The felony convictions in our sample included grand theft, possession and sale of narcotics, forgery of monetary instruments, and sale of illegal weapons.

An additional 11 of the 46 illegal aliens with criminal records in NCIC had been convicted of misdemeanors. Although aliens convicted of misdemeanors are eligible for voluntary departure, the seriousness of some of the charges against them raises the question of whether aliens with significant criminal convictions should instead be ordered removed so that they will be barred from legal reentry to the United States for 10 years. The misdemeanor convictions in our sample included corporal injury to a spouse or cohabitant, possession of forgery instruments, driving under the influence of alcohol, and theft. Some examples of aliens with multiple misdemeanor convictions included:

To determine whether INS district officers grant voluntary departure to convicted criminals, we performed our own checks in NCIC and INS's Deportable Alien Control System (DACS) on 70 of the 708 INS-granted voluntary departures we reviewed.16  We found that 6 of the aliens (9 percent) had previous criminal convictions, including two aggravated felonies. Nevertheless, INS district officers granted voluntary departure to all of them, including the aggravated felons.

The problem of allowing criminal aliens to depart voluntarily rather than detaining and placing them into removal proceedings extends to Border Patrol apprehensions as well. In the September 1998 Office of the Inspector General (OIG), Inspections Division report, Border Patrol Drug Interdiction Activities on the Southwest Border, number

I-98-20, a sample of 426 drug seizure cases included 154 aliens who Border Patrol agents apprehended at the scene and INS district officers returned to Mexico through voluntary departure. These 154 aliens included 17 criminal aliens who were granted voluntary departure after INS had referred them for prosecution, placed detainers on them, tracked them through their criminal proceedings, and ultimately took custody of them after they completed their sentences. The report recommended that Border Patrol agents not grant voluntary departure when there is reason to believe that the alien has engaged in drug trafficking.

Lack of Evidence Confirming Immigration Judges' Application of Other Eligibility Requirements

Illegal aliens granted voluntary departure by an immigration judge must meet more eligibility requirements than those who receive voluntary departure from an INS district officer. By law, the eligibility requirements become more stringent the longer thealiens remain in removal proceedings. Prior to the conclusion of removal proceedings, an alien must concede removability, withdraw all claims to other forms of relief, and waive all appeals. At the conclusion of removal proceedings, aliens do not need to meet the above criteria. Instead, they must demonstrate good moral character, means and intention to depart, and one year's physical presence in the United States.

We found very little evidence in our file reviews and interviews confirming that immigration judges apply these eligibility requirements to every alien who requests voluntary departure. Immigration judges may in fact consider the eligibility criteria in every case, but because of the lack of documentation in EOIR files, we had no means of testing the basis of their decisions.

In addition, we witnessed and examined examples in case files of immigration judges accepting the testimony of aliens and aliens' attorneys as to their or their clients' means and intention to depart. Immigration judges have the discretion to accept oral testimony, but we could not confirm whether means and intention to depart had been adequately established in our sample cases because of the lack of corroborating evidence in EOIR and INS case files.

Immigration judges could exercise their discretion to ask aliens to provide more specific evidence to satisfy these requirements, especially those at the conclusion of removal proceedings. Written or oral testimony from neighbors, employers, teachers, or church and civic groups could bolster a good moral character claim. Aliens could show their means and intention to depart by bringing to court bank statements, pay stubs, one-way tickets, and required travel documents. Documentation in the form of bank statements, bills, or other mail could be used to demonstrate one year's presence in the United States. We found very little evidence of this kind in our review of EOIR case files.

In light of the convicted criminals in our sample who received voluntary departure from immigration judges, judges may wish to consider using the good moral character clause to prevent illegal aliens who have been convicted of multiple misdemeanors or charged with non-aggravated felony crimes from receiving voluntary departure. Although this clause applies only at the conclusion of removal proceedings, it provides immigration judges with a means to order the removal of aliens who have broken U.S. laws.

INS CANNOT VERIFY MOST DEPARTURES ORDERED BY IMMIGRATION JUDGES

Although many illegal aliens granted voluntary departure by immigration judges appear to remain in the United States rather than leaving when required, INS cannot verify which aliens have left and which have not. This is significant because of statutory penalties for violating voluntary departure orders and the 3- and 10-year bars against legal re-entry. Without complete and accurate departure information, INS cannot enforce these legal requirements.

Many Aliens Granted Voluntary Departure by Immigration Judges Appear Not to Leave

In our sample of 440 aliens in removal proceedings from our four site visits, we found that immigration judges granted voluntary departure in 334 (76 percent) of the cases in which it was requested.17  At the time of our review, the voluntary departure date had passed for 314 aliens in our sample.18  As Figure 4 demonstrates, we found no evidence of departure in 54 percent of the cases.19

Figure 4 - Depature Status of Cases

Source: OIG Sample of INS Alien Files (n=314)

Voluntary departure granted by immigration judges should result in many illegal aliens leaving the country voluntarily and unescorted. Of the 71 (23 percent) verified departures in our review, only 42 (13 percent) of the 314 illegal aliens actually left the country voluntarily and unescorted. These 42 aliens represented 59 percent of the 71 cases of verified departures. The remaining 29 illegal aliens with verified departures were detained during the removal proceedings and eventually were escorted by INS district officers out of the country after the issuance of the immigration judge's voluntary departure order.20

Twenty-three percent of the aliens granted voluntary departure did not leave by the date ordered because they had filed an appeal with the Board of Immigration Appeals (BIA). Aliens who have been denied asylum, as well as some other forms ofrelief, may appeal the immigration judge's decision to the BIA.21   The appeals process can be time-consuming. From the receipt of the appeal to the issuance of a decision, the BIA takes an average of seven to eight months to review a detained case and nearly one year to review a non-detained case.22  Aliens granted voluntary departure at the conclusion of removal proceedings do have the right to file an appeal. The appeals process allows aliens to remain in the United States, sometimes for years, without the threat of INS apprehension.

INS Lacks an Effective Departure Verification System for Aliens Granted Voluntary Departure by Immigration Judges

INS does not know which illegal aliens granted voluntary departure by immigration judges have left the United States because the process for verifying departures is flawed. Immigration judges and INS trial attorneys are not required to provide information or instructions to aliens about how to verify their departure, nor did we witness them do so in our courtroom observations. In most cases, INS has no further contact with the alien after the immigration judge issues the voluntary departure order. Aliens are not required to contact INS at the time of their departure or after they return to their country of origin.

Departure verification of aliens granted voluntary departure by immigration judges is not systematic. If an alien entered the United States legally as a non-immigrant, the alien's Non-Immigrant Arrival/Departure Record (I-94) can serve as a verification of departure. However, many aliens in removal proceedings did not enter the country legally, and so would not have received a Non-Immigrant Arrival/Departure form. Even if an alien did enter legally and receive this form, an INS officer or airline carrier would need to return the completed form to the appropriate INS office for this information to serve as departure verification.

Another means of verifying departure is the INS Verification of Departure form (G-146), which aliens can obtain from an INS district office and take to the U.S.Consulate in their native country. There, a consular official must sign the form and attach a picture of the alien to verify that he or she has departed. The consular office is then responsible for sending the completed form back to the INS district office. During our observations of removal proceedings, however, immigration judges did not inform aliens that they could obtain this form to verify their departure. Officials at the Vera Institute of Justice, a non-profit organization currently conducting a demonstration project for INS in New York, maintained that most of the aliens they have worked with had no knowledge of this form.23  Furthermore, aliens have little incentive to comply with this burdensome procedure.

It is important for INS to have an effective departure verification process. In IIRIRA, Congress prohibited voluntary departure violators from receiving certain forms of relief, including another voluntary departure grant, for 10 years, and further mandated 3-year and 10-year bars against reentry for aliens who have spent time illegally in the United States. INS cannot enforce these new congressional requirements without accurate information on aliens' immigration histories, including whether or not they departed when required and how long they remained in the United States. In addition, because violating a voluntary departure order should preclude aliens from receiving many immigration benefits, accurate departure information is important in processing benefit applications.

ENFORCEMENT OF IMMIGRATION JUDGES' VOLUNTARY DEPARTURE ORDERS IS INEFFECTIVE

INS enforcement of voluntary departure orders issued by immigration judges is minimal. INS district officers seldom seek or apprehend aliens who violate voluntary departure orders issued by immigration judges. At the same time, immigration judges do not fully utilize voluntary departure bonds or conditions to assist INS in the enforcement of their voluntary departure orders.

INS Does Not Effectively Enforce Voluntary Departure Orders by Immigration Judges

INS is responsible for enforcing the voluntary departure orders issued by immigration judges. In the past, INS has had problems enforcing immigration judges' removal orders. A March 1996 OIG Inspections report entitled Immigration and Naturalization Service Deportation of Aliens After Final Orders Have Been Issued, number I-96-03, examined INS enforcement of immigration judge removal orders. According to that review, only about 11 percent of nondetained aliens ordered removed actually left the United States.24

INS places a higher priority on, and devotes more resources to, enforcing violations of removal orders by criminal aliens and aliens previously ordered removed. INS enforcement of immigration judge-granted voluntary departures varies by district and by enforcement officer. INS headquarters officials report that voluntary departure orders with bonds receive enforcement priority over those without bonds. Nevertheless, illegal aliens who violate their voluntary departure orders represent part of INS's enforcement caseload.

Ideally, INS district officers would need to take four crucial steps to improve their enforcement of immigration judges' voluntary departure orders. First, INS district officers would need to track when an individual alien's voluntary departure date has arrived. Second, INS district officers would need to verify whether or not the alien has in fact departed by that date. Third, INS district officers would need to issue a Warrant of Removal (form I-205) when they have determined that an alien has not left by the time specified.25  In our review of aliens who were granted voluntary departure, we found warrants in the files of only 51 (30 percent) of the 172 cases in which an alien appearedto have violated an immigration judge's order. Finally, INS district officers would need to seek and apprehend aliens who have not left by the date of an immigration judge's voluntary departure order.

INS enforcement of immigration judge-ordered voluntary departure is difficult because INS officials do not have sustained contact with the aliens. After the judge's decision, the alien may appear at the INS district office to post a bond or to receive a verification of departure form. Beyond this, however, there is no requirement for the alien to contact INS. When INS believes that an alien has remained in the United States beyond the ordered voluntary departure date, INS district officers must rely on the last address given by the alien. If an alien wishes to remain in the United States beyond the voluntary departure date, the alien can easily avoid INS detection by changing addresses.

Congress sought to help INS enforce voluntary departure orders by including in IIRIRA a provision authorizing civil penalties between $1,000 and $5,000 for aliens who fail to follow their voluntary departure orders. This penalty, if consistently enforced, was designed as an incentive for aliens to depart as ordered and to assist INS in its enforcement mission. According to the INS General Counsel, INS headquarters has not taken steps to enforce this provision of the law.

Voluntary Departure Bonds are Not Fully Utilized by Immigration Judges

Officials at EOIR headquarters and the immigration judges frequently note that they are dependent on INS for the enforcement of their orders. While INS has the responsibility for carrying out removal orders, the immigration judges can assist INS in enforcing their orders. Prior to IIRIRA, immigration judges had the discretion to authorize bonds to assist enforcement of voluntary departure orders. Under IIRIRA, the judges are required to set bonds on voluntary departure orders issued at the conclusion of removal proceedings. The Code of Federal Regulations directs that the voluntary departure bond should be set in an amount necessary to ensure departure, but not less than $500.26

We tested the extent to which immigration judges were setting voluntary departure bonds both pre- and post-IIRIRA. Overall, we found that in both cases bonds are underutilized. In our sample of cases pre-IIRIRA, we found that a bond was posted in only 1 of the 225 cases in which voluntary departure was granted. For post-IIRIRA cases, immigration judges attached voluntary departure bonds to only 15 of their 109 voluntary departure orders. The post-IIRIRA data shows that immigration judges are not yet using the full authority given them by IIRIRA to strengthen the enforcement of their voluntary departure orders through bonds. We believe this is an early alert to EOIR to ensure that immigration judges are setting voluntary departure bonds.

Reasons immigration judges cited for not requiring voluntary departure bonds included the belief that many aliens cannot afford bonds, the difficulty that aliens face in posting bonds at INS, and a lack of INS detention space which makes bond enforcement difficult. Another reason cited is that voluntary departure bonds cancel any appearance bonds placed on aliens at the time of apprehension. Appearance bonds are usually much higher than voluntary departure bonds. For example, the appearance bonds in our sample ranged from $1,000 to $20,000. From an enforcement perspective, there may be little incentive for the immigration judges to replace a high dollar value appearance bond with a $500 voluntary departure bond.

Immigration Judges Do Not Attach Other Conditions

The post-IIRIRA regulations explicitly authorize immigration judges to attach to their voluntary departure orders any other conditions they deem necessary to ensure departure.27  Based on our file review of aliens granted voluntary departure, we saw no evidence that immigration judges attached any conditions other than bonds to voluntary departure orders, either pre-IIRIRA or post-IIRIRA.

Conditions immigration judges could attach to voluntary departure orders include detention, departure bonds for voluntary departure grants made prior to the conclusion of removal proceedings, and periodic reporting to the INS district office. Immigration judges could order aliens to depart through a land, air, or sea port of entry and report to an immigration officer to have their departure witnessed. Given our finding that aliens granted voluntary departure do not appear to leave, immigration judges should exercise their authority in attaching conditions to voluntary departure orders to help ensure that aliens depart when required.

INS FAILS TO TRACK VOLUNTARY DEPARTURES GRANTED BY INS DISTRICT OFFICERS

INS recordkeeping for voluntary departures granted by INS district officers is seriously flawed. Even though INS cannot document the departure of many of the aliens, INS headquarters and district officials maintain that illegal aliens granted voluntary departure by INS district officers are escorted out of the United States and do not leave INS custody during the departure process. We were unable to find documentation of departure for many of the aliens in our review of INS-granted voluntary departure cases. INS's failure to document these voluntary departures results in an incomplete immigration history for each of those illegal aliens. INS district officers or other law enforcement officials need to have access to complete immigration histories for each illegal alien they encounter in order to make appropriate decisions about the alien's disposition and the enforcement of various immigration penalties, such as the 3- and 10-year bars for illegal presence.

In addition, steps INS has taken recently to track voluntary departures granted by INS district officers have not been effective. The former INS General Counsel testified before a congressional committee in September 1996 that INS has not historically tracked voluntary departures granted by INS district officers. He stated that INS was developing a comprehensive tracking system to provide a complete, timely count of all INS-granted voluntary departures. We found that the system, the Interior Voluntary Return Tracking System (IVRTS) that INS implemented in fiscal year 1997, does not track individual aliens who are granted voluntary departure by INS district officers and can offer only an incomplete count of those grants nationwide.

The Interior Voluntary Return Tracking System Does Not Track Individual Aliens

In October 1996, INS established a system intended to track and count voluntary departures granted by INS district officers. Each month, INS requires all districts and Border Patrol sectors to send the Records of Deportable Alien for all voluntary departures granted by INS district officers to the INS Service Center in Dallas, Texas, to be entered into IVRTS. Contractor data-entry workers key the information from the Records of Deportable Alien into IVRTS to generate monthly and yearly statistics. For fiscal year 1997, IVRTS reported that INS district officers granted 68,000 voluntary departures. INS headquarters officials, however, believe that not all districts and sectorssent their Records of Deportable Alien to Dallas. Consequently, INS maintains that the figure is too low by at least 20,000.28

The "tracking system" is flawed in more systemic ways as well. First, it only purports to count the number of grants of voluntary departure. For all of the reasons described above, there is substantial reason to doubt its reliability as a record of actual departures. Second, under the terms of the contract, the IVRTS contractor does not record the names or alien numbers of the aliens granted voluntary departure. Therefore, the system is incapable of tracking individual aliens. As currently deployed, IVRTS can only offer an incomplete count of the number of aliens granted voluntary departure by INS district officers. It provides no information suitable for follow-up enforcement and none useful for lookout indices. INS should either improve the accuracy and expand the capabilities of IVRTS or discontinue the system.

The Deportable Alien Control System Does Not Provide Accurate Departure Information for INS-Granted Voluntary Departures

The DACS, INS's automated data base that theoretically includes records on every deportable alien encountered in the United States, offers little help in tracking INS-granted voluntary departures.29   DACS records must be called up with alien numbers. However, INS district officers do not assign alien numbers to many of the aliens they allow to voluntarily depart. Of the 708 Records of Deportable Alien forms we collected, 226 had alien numbers. We checked DACS for departure records for those 226, and found a DACS record for 153 cases. In 123 of those 153 cases, DACS records provided a verification of the alien's departure.30

Therefore, DACS could only provide verification for 123 (17 percent) of 708 voluntary departures. Officials at INS headquarters told us that DACS contains numerous errors and is too inconsistently maintained to be relied upon for accurate departure information.

Paper Transportation Logs Do Not Provide Adequate Verification of Departures

Comparing our 708 INS-granted voluntary departure cases with the Records of Persons and Property Transferred (I-216s) that INS uses as paper transportation logs, we could verify the departure of 398 (56 percent) of the aliens.31   Although the purpose of the Record of Person and Property Transferred form is not to verify departures, we attempted to use the paper transportation logs as another means of tracking the departure of the aliens in our sample. INS may, in fact, remove more of the voluntary departures than we could verify by matching the Records of Deportable Aliens to the Records of Persons and Property Transferred. However, INS does a poor job of documenting the transportation of illegal aliens in its custody, making the tracking of individual aliens virtually impossible.


RECOMMENDATIONS


Our inspection found instances of apprehended illegal aliens who, despite their convictions for aggravated felony crimes, received voluntary departure from immigration judges and INS district officers. Because voluntary departure carries no penalty or impediment to legal re-entry, these aliens could re-enter the United States legally and, potentially, commit additional crimes. Some of them may have violated their voluntary departure orders and never returned to their native countries. Instead of receiving the benefits of voluntary departure, these aggravated felons should have been immediately detained and removed from the country. Voluntary departure provides an alternative to a formal order of removal for eligible illegal aliens to leave the country through a streamlined, quicker, and less stigmatized process while potentially saving the U.S. Government detention and removal costs. Since criminal history checks are not always performed by INS nor introduced as evidence in removal proceedings, some aggravated felons are inappropriately granted voluntary departure. If implemented properly, voluntary departure should not serve as a mechanism for aggravated felons to escape formal removal and concomitant penalties.

In addition, INS does not ensure that illegal aliens granted voluntary departure by immigration judges leave the country within the required time frame. INS enforcement of voluntary departure orders is minimal, while EOIR immigration judges do not use their full authority to assist INS in the enforcement of their orders. Furthermore, INS record keeping does not adequately track whether illegal aliens granted voluntary departure actually leave the United States. To be effective, voluntary departure should have a sound departure verification and tracking system. INS's lack of knowledge about whether illegal aliens leave the country precludes INS from determining if voluntary departure provides a streamlined, quicker process than formal removal that saves the U.S. Government detention and removal costs.

Our recommendations specifically address problems with enforcement of voluntary departure, but we recognize that voluntary departure is only one method INS employs to remove illegal aliens from the United States. Some of the same enforcement and tracking problems identified for the voluntary departure process are evident in the process INS uses to track and enforce the departure of illegal aliens formally removed from the United States. A September 1997 OIG report, INS Monitoring of Nonimmigrant Overstays, number I-97-08, identified similar problems in INS's tracking of nonimmigrants who overstay their visas. INS may benefit from considering the broader applicability of our recommendations on voluntary departure as part of its efforts to improve overall tracking and enforcement.

We offer the following recommendations to strengthen voluntary departure and address the problems identified in this report. We address our recommendations to INS and EOIR because both have important roles in the successful implementation of voluntary departure as an alternative form of removal.

To ensure that criminal history checks are consistently completed when the alien is apprehended and to ensure that the results of the checks are used in removal proceedings by immigration judges, the Inspections Division recommends:

  1. The INS Commissioner require that INS district officers perform NCIC criminal history checks before granting voluntary departure to apprehended aliens, or placing aliens into EOIR removal proceedings. This requirement should include the development and issuance of policies and procedures with specific guidance for district officers on their responsibilities and a mechanism for monitoring compliance.
  2. The INS Commissioner require that INS trial attorneys introduce up-to-date (within three months) results of NCIC criminal history checks as evidence in EOIR removal proceedings. District counsels should ensure that new checks are performed within three months of an alien's appearance before an immigration judge each time the alien is scheduled to appear in immigration court.
  3. The EOIR Director seek regulatory change that voluntary departure cannot be granted by immigration judges if the results of up-to-date NCIC criminal history checks have not been introduced as evidence. In the interim period until the regulatory change takes effect, the EOIR Director should issue guidance suggesting that immigration judges not grant voluntary departure without criminal history checks.

In light of the OIG finding that many aliens granted voluntary departure by immigration judges appear not to leave and to ensure that all eligibility requirements are consistently applied by immigration judges, the Inspections Division recommends:

  1. The EOIR Director issue guidance suggesting that immigration judges have aliens and their attorneys present evidence to corroborate oral testimony on eligibility.

To improve tracking the departure of all aliens ordered to voluntarily leave the country, the Inspections Division recommends:

  1. The INS Commissioner implement an effective departure verification system for immigration judge-granted voluntary departures and a system for identifying and tracking each alien granted voluntary departure by INS district officers. INS could choose to create one system, or enhance an existing system, for tracking immigration judge granted-voluntary departures and INS granted-voluntary departures. In either case, any system must present a clear trail from the alien's apprehension through his or her departure from the United States.
  2. 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. If regulatory change is needed to implement this recommendation, the EOIR Director should seek the regulatory change.

To ensure that aliens ordered to leave actually do so, the Inspections Division recommends:

  1. The INS Commissioner develop an enforcement plan addressing those aliens who have violated immigration judge-granted voluntary departure orders that, at a minimum, includes the following issues: 1) coordination with EOIR in monitoring departure dates, 2) verifying departures, 3) prompt issuance of Warrants of Removal, 4) entering violators into INS lookout systems, and 5) seeking and apprehending violators. INS could consider revising its current enforcement plan to address these issues.
  2. The EOIR Director provide clarifying guidance that immigration judges should set voluntary departure bonds whenever possible to assist INS in enforcing their voluntary departure orders.

 

11 IIRIRA included a stricter definition of aggravated felony. The definition can be found in INA 101(a)(43), 8 U.S.C. 1101(a)(43). See Appendix D.

12 Aliens are fingerprinted in removal proceedings when they request asylum and some other forms of relief. Although fingerprinting is not generally performed for the purpose of voluntary departure, immigration judges can use the results in order to assess an alien's eligibility for voluntary departure.

13 Several INS district counsels told us that responses from the FBI can take as long as 180 days, which may explain the discrepancy in the files between the fingerprint cards and the responses. The delays in the process of receiving responses force immigration judges to either order continuances in the cases or issue their decisions without the benefit of the FBI criminal history checks. In our review of alien's files, we found that it was not possible to determine which cases had responses pending from the FBI.

14 Name-based systems are data bases established using the names and dates of birth of individuals. These data bases are sometimes searched using other identifiers (e.g., identifying numbers), but they are intended to identify individuals uniquely by name. Dates of birth distinguish between people with the same name. It takes approximately 10 minutes to conduct most name-based checks in NCIC, although sometimes conviction information must be confirmed by telephone with police departments and courts.

15 INS enforcement procedures require that the Record of Deportable Alien (revised April 1, 1997) be prepared for all aliens referred by the apprehending officer for removal or prosecution. The most recent official Record of Deportable Alien calls for INS personnel to provide information on criminal history, if any, in a specific block labeled "Criminal Record" as well as in the block labeled "Narrative." INS district officers used various versions of the Record of Deportable Alien form for the cases in our sample, and almost all of them explicitly called for criminal history checks.

16 We did not seek to determine the extent of this problem, only whether or not INS district officers ever grant voluntary departure to convicted criminals; therefore, we conducted follow-up on only 70 of the 708 Records of Deportable Alien forms to make this determination due to resource and time constraints that, while sufficient to establish that such results occur, is not sufficient to statistically project the full extent of the problem.

17 In 39 (9 percent) of the cases we reviewed, immigration judges denied voluntary departure requests and ordered the alien removed. In another 44 cases (10 percent), immigration judges granted asylum or some other form of relief; the judges terminated proceedings in 23 cases (5 percent).

18 As of the date we reviewed the alien files, 20 of the 334 aliens granted voluntary departure were not yet required to leave under their voluntary departure order.

19 We counted as "verified departures" only those cases in which we found in the INS alien file official documentation that the alien had departed the United States. We accepted as official documentation INS Verification of Departure forms (G-146s) signed and dated by U.S. consular officials, INS Warrants of Removal (I-205s) signed and dated by INS district officers, or any other signed and dated document (i.e., the I-94 Arrival/Departure Record) in which an INS officer or U.S. consular official claimed to have witnessed the alien depart the United States or witnessed the alien's presence in the alien's country of origin.

20 Aliens can be detained by INS during removal proceedings if they are known to have committed a crime; in some cases, aliens who have been incarcerated in jails are placed into removal proceedings when they near the end of their sentence. In removal proceedings, detained aliens may request any form of relief, including voluntary departure, for which they may be eligible. Aliens are still considered to have received a form of "voluntary" departure even if they have been detained during the removal proceedings and are escorted out of the country by INS district officers after the issuance of the immigration judge's order.

21 The BIA's 16 members sit in Falls Church, Virginia, and hear appeals of immigration judge decisions from around the country. Most appeals are not conducted orally, but through the BIA's reading of the merits hearing transcript and the briefs filed by the alien's attorney and the INS trial attorney. An alien who has been denied asylum by an immigration judge has the right to appeal the decision, and little reason not to do so. When an immigration judge denies a request for asylum, he or she may grant the alien voluntary departure. But if the alien then appeals the immigration judge's decision to deny asylum, the alien is not required to leave by the voluntary departure date. Even if the BIA upholds the immigration judge's denial of asylum, the BIA may reinstate a period of voluntary departure for the alien.

22 The BIA processes detained cases more quickly because of the cost to the U.S. government of keeping these aliens in INS custody during the appeals process and because INS faces a shortage of detention space in some parts of the country.

23 In September of 1996, the Vera Institute of Justice was awarded a three-year, $6.4 million contract with INS to implement a demonstration project in the New York district. The Appearance Assistance Program (AAP) seeks to improve the attendance of aliens at their EOIR removal proceedings hearings and to encourage compliance with immigration judge orders. As of April 1998, Vera officials reported that 250 aliens were participating in the AAP; the project's authorization allows a maximum of 340 participants. AAP officials stated that the process of obtaining a verification of departure at the U.S. Consulate is burdensome to the alien, and that aliens have little incentive to comply with the procedure. One AAP official told us that she had traveled to Mexico City to observe the verification process at the U.S. Consulate there. She observed that Mexican nationals must have two forms of identification to enter the Consulate building, one to leave at the gate, and another to bring into the building to present with the Verification of Departure form. She maintained that many Mexicans who are returning to the country after illegal status in the United States will not have the required two forms of identification.

24 This statistic is based on a sample of 1,058 cases from 14 locations in fiscal year 1994. The Inspections team also found that when aliens were detained during the deportation proceedings, they did leave.

25 8 CFR 241.1 and 241.2 require that district directors issue Warrants of Removal (I-205s) when they determine that aliens have not departed within the time period specified for voluntary departure.

26 8 CFR 240.26 (c)(3) contains this requirement. The regulation also states that the alien shall post the voluntary departure bond with the district director within five business days of the immigration judge's order and that the district director may hold the alien in custody until the posting of the bond. If the alien does not post the bond within five business days, the voluntary departure order shall vacate automatically and an alternate order of removal will take effect on the following day. The CFR further states that in order for the bond to be canceled, the alien must provide proof of departure to the district director.

27 8 CFR 240.26 (c)(3) contains this authorization.

28 Officials at INS headquarters did not know why INS districts and Border Patrol sectors failed to send more than 20,000 Records of Deportable Alien to the INS Service Center in Dallas, TX. INS estimates that the IVRTS figure for fiscal year 1997 is too low by subtracting the number of charging documents for removal proceedings issued from the number of apprehensions of aliens who have been in the United States 72 hours or more. By this method, the figure should be 90,000.

29 INS district officers use DACS to find a variety of information about an alien and his or her immigration history. DACS includes biographic details, employment information, case histories, detention records, information on EOIR hearings, and departure records.

30 We accepted a DACS record as verification of departure only if a 9, the DACS code for a voluntary return witnessed by an INS officer, appeared in the "Depart-Cleared-Stat" field of the case closure screen. We did not count the voluntary departure as verified if the date of the departure in DACS was too far removed from the date of apprehension on the Record of Deportable Alien; in such cases, the departure in DACS most likely represented a subsequent voluntary departure.

31 In a small percentage of these cases (approximately 5 percent), the aliens we counted as verified departures were transported to a detention center or a Service Processing Center and not to their native countries. Our assumption was that, once these aliens arrived at the detention center or the Service Processing Center, they were subsequently returned to their native countries under the escort of an INS officer.

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