U.S. DEPARTMENT OF JUSTICE

OFFICE OF THE INSPECTOR GENERAL

 

Inspections Division

Voluntary Departure:
Ineffective Enforcement and
Lack of Sufficient Controls
Hamper the Process

Report Number
I-99-09

March 1999


 

TABLE OF CONTENTS

 

INTRODUCTION

RESULTS OF THE INSPECTION

CRIMINAL HISTORY AND ELIGIBILITY CHECKS

Prevalence of Criminal History Checks

Convicted Criminals

Other Eligibility Requirements

DEPARTURE VERIFICATION IN PROCEEDINGS

Illegal Aliens Appear Not to Leave

Lack of an Effective Verification System

ENFORCEMENT OF VOLUNTARY DEPARTURE ORDERS

Ineffective Enforcement

Voluntary Departure Bonds

Attachment of Other Conditions

TRACKING GRANTS OF VOLUNTARY DEPARTURE

Deportable Alien Control System

Paper Transportation Logs

RECOMMENDATIONS

APPENDIX A: THE EOIR REMOVAL PROCEEDINGS PROCESS

APPENDIX B: THE INS VOLUNTARY DEPARTURE PROCESS

APPENDIX C: METHODOLOGY

APPENDIX D: THE INS DEFINITIONS OF AGGRAVATED FELONY

APPENDIX E: EXECUTIVE OFFICE FOR IMMIGRATION REVIEW RESPONSE TO DRAFT REPORT

APPENDIX F: OFFICE OF THE INSPECTOR GENERAL'S ANALYSIS OF
MANAGEMENT'S RESPONSE

* * * * *

 

MEMORANDUM FOR DORIS MEISSNER
                                        COMMISSIONER
                                        IMMIGRATION AND NATURALIZATION SERVICE

                                        KEVIN D. ROONEY
                                        DIRECTOR
                                        EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

FROM:                            MICHAEL R. BROMWICH
                                        INSPECTOR GENERAL

SUBJECT:                       Voluntary Departure: Ineffective Enforcement and Lack of
                                        Sufficient Controls Hamper the Process, Report Number I-99-09


 

In our continuing effort to address illegal immigration issues, the Office of the Inspector General (OIG), Inspections Division, assessed how Immigration and Naturalization Service (INS) district officers and Executive Office for Immigration Review (EOIR) immigration judges implement voluntary departure. Voluntary departure is a process by which an illegal alien agrees to leave the United States voluntarily, thus avoiding the penalties and stigma of removal. Voluntary departure is an alternative to a formal order of removal for eligible illegal aliens to leave the country through a streamlined and quicker process while potentially saving the U.S. Government detention and removal costs.

Our report findings demonstrate weaknesses in conducting criminal history checks, tracking alien departures, and overall enforcement of voluntary departure orders. A discussion of our most significant findings and recommendations follows.

Criminal History Checks

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 prohibits aggravated felons from receiving voluntary departure. INS relies on either the Federal Bureau of Investigation’s National Crime Information Center (NCIC) system or fingerprint criminal history checks to ensure that no aggravated felons are granted voluntary departure. EOIR immigration judges currently do not require criminal history checks to determine if the alien is an aggravated felon and thus is ineligible for voluntary departure.

We found that adequate criminal history checks identifying aggravated felons are not performed on all illegal aliens granted voluntary departure. INS district officers perform few, if any, criminal checks prior to granting voluntary departure to apprehended aliens. Immigration judges frequently issue decisions without completed checks. As a result, INS district officers and immigration judges inappropriately grant voluntary departure to some aggravated felons.

To ensure that no aggravated felons receive voluntary departure, we recommend that INS district officers perform NCIC criminal history checks before granting voluntary departure or placing aliens into removal proceedings. We further recommend that the INS trial attorneys introduce the results of checks into evidence at proceedings and recommend a regulatory change so that immigration judges do not grant voluntary departure without the checks.

Tracking

INS cannot verify that aliens ordered to leave the United States do so. 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 whether voluntary departure provides a more streamlined, quicker process than formal removal that saves the U.S. Government detention and removal costs.

To address this problem, we recommend that INS 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’s lack of effective departure verification systems is more widespread than is presented in this report regarding voluntary departures. INS also has problems tracking nonimmigrants who overstay their visas. In a September 1997 OIG report, Inspection of INS Monitoring of Nonimmigrant Overstays, we recommended improving departure verification records for nonimmigrants and ensuring complete and reliable data to support enforcement efforts.

Enforcement

Lack of a tracking system also negatively affects INS’s ability to enforce voluntary departure orders. INS enforcement of voluntary departure orders is minimal. INS does not seek and apprehend aliens who fail to leave; instead, they become fugitives who may continue to live and work illegally in the United States.

Although INS has primary responsibility for enforcing immigration judges' orders, immigration judges could play a more significant role in assisting with the enforcement of voluntary departure orders. We found that immigration judges are not adequately using their authority to assist INS’s enforcement efforts. Voluntary departure bonds are not fully utilized by immigration judges, and we found no evidence that immigration judges attach any conditions other than bonds to voluntary departure orders. Attachment of other conditions could increase the likelihood of an alien leaving the country when required.

We recommend that INS develop an enforcement plan, or revise its current plan, to sufficiently address those aliens who have violated immigration judge-granted voluntary departure orders in conjunction with developing a system to verify departures. We also recommend that EOIR issue clarifying guidance that immigration judges set voluntary departure bonds whenever possible to assist INS in enforcing voluntary departure orders.

Summary

Our report offers these recommendations to strengthen voluntary departure and address the problems identified in this report. Our recommendations are addressed to INS and EOIR because both have important roles in the successful implementation of voluntary departure as an alternative form of removal.

We sent copies of the draft report to your offices on January 15, 1999, and requested written comments on the findings and recommendations. As we did not receive a response from INS, all four recommendations addressed to INS are unresolved. We will continue to work with INS to elicit their comments and planned actions to address the recommendations.

EOIR provided written comments on March 10, 1999. We have attached EOIR’s response as Appendix E. On the basis of its comments, we consider two out of the four recommendations unresolved. Appendix F provides a detailed analysis of EOIR’s response, including what additional actions are needed. Please respond by May 14, 1999, clarifying agreement or disagreement with the report recommendations and providing us with a plan of action. Guidance on report follow-up and resolution can be found in Department of Justice Order 2900.10.

We appreciate the cooperation that your staff extended to us as we conducted our review. If you have any suggestions of how we might improve our review process, or if we can provide you with any additional information, please let us know.

Attachment

cc:    Kathleen Stanley
        Liaison
        Immigration and Naturalization Service

        Peggy Philbin
        Liaison
        Executive Office for Immigration Review

        Vickie L. Sloan
        Director
        Audit Liaison Office

#####