At the heart of the congressional allegations was also the question of whether, for any reason, INS had watered down the criteria by which it evaluated an applicant for naturalization. In this chapter we address those concerns and examine the naturalization evaluation process and the standards by which INS adjudicators evaluated naturalization applications during CUSA.
Contrary to some allegations, the evidence does not indicate that INS purposefully rescinded eligibility standards during CUSA. However, we found that INS' application of eligibility standards was already inconsistent—and known to be so—before it launched CUSA, and INS officials did nothing to improve the known weaknesses before the program began. INS failed to provide its adjudicative corps with appropriate guidance concerning issues bearing on the determination of eligibility for naturalization both before and during CUSA. Thus, when INS augmented its adjudication workforce with hastily trained new officers, and the pressure to complete cases intensified, these weaknesses became more pronounced. This, in conjunction with INS' failure to ensure that the officers had the tools they needed to ensure a quality adjudication—like applicant files and results of criminal history checks, as discussed in subsequent chapters—led to a processing system during fiscal year 1996 that was deeply flawed.
The flaws in that processing system were all ones that tended to make adjudications more superficial. Brief training prevented new adjudicators from examining applications in great detail, even if they had been provided the time to extend the length of naturalization interviews. The lack of adjudicative guidance concerning more complex issues prevented those issues from being adequately explored. Since issues in an applicant's background that could potentially lead to disqualification often could only be revealed as a result of greater exploration, where that exploration was curtailed the issues would simply not arise. Thus, although not a deliberate goal of the program, naturalization processing during CUSA was more heavily weighted in favor of approval, not denial, of applications for naturalization.
We note at the outset that it is impossible to quantify the number of CUSA eligibility determinations that were affected by the deficiencies we describe in this chapter concerning naturalization interviews and adjudications. We cannot establish how many applicants who were approved for naturalization would have been found ineligible had better training, better guidance, and better tools been available. Although audits can—and have—revealed the extent to which objective measures like disqualifying criminal histories were ignored,81 no amount of after-the-fact study can determine what might have been revealed to a fully trained, supervised adjudicator who had the opportunity to conduct an interview of sufficient length and depth. Accordingly, we focus on the degree to which the system that was in place failed to safeguard naturalization integrity, and do not offer evidence of the exact extent to which particular adjudications was incorrect.
We begin this chapter by describing the interview and adjudication process. We then describe some of the adjudication practices that existed prior to fiscal year 1996 in order to provide a benchmark against which to measure the changes that occurred specifically during CUSA.
We then turn to interviews and adjudications during CUSA. We offer a detailed review of INS' training of the temporary adjudications officers it hired to meet the goals of CUSA. The evidence shows that the training program was designed to prepare new officers to adjudicate simple, pre-screened cases in an environment of ample supervision. However, the evidence also shows that INS Headquarters did nothing to ensure that the new officers were deployed in a manner consistent with their training, and we found that these new officers were sent to work in a variety of environments and expected to handle a wide array of naturalization cases. As a result, new officers were not adequately trained for the job they were expected to do.
We then discuss the several aspects of naturalization eligibility that INS had recognized before fiscal year 1996 as sources of confusion for its adjudications staff, and about which INS Headquarters nevertheless failed to provide guidance before launching CUSA. INS recognized that the "good moral character" standard itself—the standard at the heart of the determination of naturalization eligibility—was understood and applied differently throughout INS. INS had also confirmed that its testing procedures for English-language proficiency and knowledge of U.S. government and history varied in the Field. Although INS recognized the need for articulated standards in these areas, it provided none.
In addition, INS Headquarters knew that the Field needed guidance on how to respond to cases in which officers suspected fraud in the administration of the INS language and government tests by outside testing entities. The guidance Headquarters provided in this area came only belatedly and was not accompanied by sufficient resources to permit the Field to undertake the recommended efforts. Finally, INS was aware that a significant number of applicants who would apply for naturalization during CUSA were applicants who might have obtained their permanent residency through fraud, and yet INS nevertheless failed to give the adjudicators any guidance concerning what to do in such circumstances.
The next part of the chapter examines the guidance INS Headquarters did provide concerning how to conduct naturalization interviews and the resulting adjudications. The evidence shows that the emphasis in Headquarters' communications with the Field was almost exclusively on increasing the rate of production, streamlining the adjudication process, and working in cooperation with community-based organizations (CBOs). The combined effect of this continued emphasis on production, of the rapid deployment of an inexperienced and quickly trained workforce, of the failure to provide guidance, and of the failure to provide the fundamental tools required for a thorough naturalization adjudication was to encourage approvals of naturalization applications and to discourage the more time-consuming pursuit of potentially disqualifying issues. We provide examples of what happened across the country as Field managers attempted to meet the ambitious production goals of the CUSA program. These examples illustrate the ways in which INS emphasized quantity over quality and by doing so exposed naturalization processing during CUSA to many potential errors in adjudication.
The nature of the naturalization interview was at the heart of many of the congressional questions during hearings on the CUSA program in 1996. Both Members of Congress and INS officials recognized the interview as the fundamental investigative tool in the naturalization process. It was the point at which the standards for eligibility for citizenship were measured against the applicant's history to determine whether he or she qualified for citizenship.
During the 1996 congressional hearings, INS employees testified that the interview process had been compromised during CUSA with the applicant interview itself becoming short and perfunctory. They described situations in which supervisors prevented adjudications officers from requesting corroborating documents to establish that applicants had paid their federal income taxes, met child support obligations, or were otherwise law-abiding residents eligible for naturalization. These allegations caused concern that INS had lowered the standards for eligibility in order to increase the number of persons naturalized during CUSA.
To understand what changes in the application of eligibility criteria occurred during CUSA, we first must describe what the naturalization interview looked like before the program began. At times during the 1996 hearings, witnesses critically compared CUSA practices to adjudication practices that had existed many years ago, when INS conducted detailed background reviews and applicants produced witnesses who vouched for their good character. In reality, the longer judicial or quasi-judicial interview process had already become an anachronism long before the mid-1990s. A comparison of CUSA interviews to the evaluations that were conducted many years ago unfairly implies that the transformation of the process from a judicial inquiry into a quick administrative task occurred only recently, and for the purpose of increasing the number of persons who could be approved for naturalization. However, the modern naturalization interview had already become, long before CUSA, a relatively brief question-and-answer session, guided primarily by the written answers to questions the applicant had submitted in his or her application for naturalization.
This is not to say that CUSA did not add additional pressures on the naturalization interview that further curtailed the inquiry. Indeed, as discussed throughout this chapter, the implementation of CUSA did have an adverse impact on the quality of naturalization interviews. But it is necessary to establish a baseline by which to distinguish what happened during fiscal year 1996 from interview practices that existed before CUSA. The record shows that the quality of INS interview practices that existed before CUSA had been highly dependent on the experience, training, and supervision of the adjudications officers who conducted the interviews. The rapid infusion of new, inexperienced, and superficially trained officers, coupled with the production pressures of the CUSA program, resulted in an adjudication process highly vulnerable to error.
In our chapter providing background on the naturalization process, we described the general requirements for naturalization and the steps an applicant takes in order to apply for citizenship. Here, we address the procedures that INS followed once the applicant appeared for his or her naturalization interview. The procedures described here were those generally followed in the years immediately before and during CUSA.
Naturalization applicants are required by law to appear in person before an INS District Adjudications Officer (DAO, formerly called an "Immigration Examiner") for an "examination under oath." That examination or interview is "an inquiry concerning the applicant's residence, physical presence in the United States, good moral character, understanding of and attachment to the fundamental principles of the Constitution of the United States, ability to read, write, and speak English, and other qualifications to become a naturalized citizen as required by law." In practice, the bulk of this interview consists of reviewing information in the Form N-400, the application for naturalization. During CUSA, if necessary, the DAO would correct written answers on the application to conform to the applicant's responses at the interview.
According to the traditional model of the naturalization interview, the interviewing DAO would have the opportunity to review the applicant's permanent file prior to the interview. A well-trained adjudicator could often identify potential eligibility issues from the documents in the file. Based on the review of the file, the answers on the N-400, and the discussion during the interview, the DAO would verify that the applicant met the residency and physical presence requirements, taking into account the date of admission as a lawful resident and any subsequent periods of travel outside the United States.
An applicant had to demonstrate a level of knowledge in certain subjects in order to be approved for naturalization. The naturalization interview, therefore, also included a "testing" element. Most applicants had to demonstrate proficiency in written and spoken English (the English test) and all applicants had to demonstrate a basic knowledge and understanding of U.S. history and government (the Civics test).82 Before and during CUSA, applicants had the option of being tested on these subjects by a DAO during the interview or taking a standardized test from one of many private companies authorized to conduct such testing. If the applicant passed the test at an outside testing entity (OTE), he or she would be given a certificate indicating that the Civics and written English portion of the testing requirement had been satisfied. The applicant then would present the certificate to the DAO at the time of the interview.83 Applicants who presented such certificates were still required to demonstrate in the interview the ability to speak and understand English.
Applicants who did not use an OTE were tested on their written English proficiency by the DAO during the interview. The English test generally consisted of writing one to three sentences as dictated by the officer and demonstrating, through the answers provided to questions asked during the interview, the ability to speak "words in ordinary usage in the English language." The English test did not require fluency or grammatical precision, but a more general ability to function in a limited way where the topic was familiar and the language relatively simple. The Code of Federal Regulations (CFR) required that INS' written tests be taken from authorized federal textbooks written "at the elementary literacy level," and many INS personnel told the OIG that the minimum competency expected was that of a third-grade student.
The applicant also was asked approximately ten Civics questions taken from a published list of 100 questions developed by INS. The applicant was usually required to answer 60 or 70 percent of the questions correctly in order to pass this portion of the test. If the applicant's English ability or Civics knowledge was not sufficient to pass the interview, the case was continued for a second interview or "reexamination," and the applicant was given a second (and final) opportunity to pass.
If the applicant passed the English and Civics tests, or presented a passing certificate from an outside testing entity, the DAO then determined whether the applicant had been and continued to be a person of "good moral character" and a person who was "attached to the principles of the Constitution" during the statutorily prescribed period.
The prescribed period for "attachment to the Constitution" was ten years before the filing of the application through the date of the administration of the oath of citizenship. An applicant ordinarily demonstrated this "attachment to the Constitution" by responding affirmatively to questions in the N-400 concerning allegiance to the United States and a denial of membership in the Communist Party or in "any other totalitarian organization."84 The "good moral character" inquiry was more detailed.
Federal regulations provide a list of elements that preclude a finding of "good moral character," many of which pertain to an applicant's criminal record. However, the regulations also specifically state that the absence of a precluding factor does not necessarily mean that the applicant is, in fact, of "good moral character." The period prescribed by statute—often referred to as the "GMC period"—was from five years before the date of application through the date on which the oath was administered. Earlier conduct could be considered if "relevant" or if the applicant showed no evidence of "reform."85 Although the law provided DAOs with guidance concerning the boundaries beyond which an officer could not find that an applicant was of "good moral character," within those boundaries the evaluation of the applicant's character was left to the discretion of the officer.86
As in the case of an applicant who failed the testing portion of the interview, an officer could continue a case for a second interview, "to afford the applicant an opportunity to overcome deficiencies on the application that may arise during the examination." In such cases, the DAO typically made a final decision after the second interview. Sometimes an issue arose during the interview that could be resolved only by the production of additional documents. For example, an applicant whose criminal history report or "rap sheet" (resulting from the applicant fingerprint check required as part of the application) showed an arrest might be asked to provide court documents showing the disposition of the arrest. Other documents that were sometimes requested included proof of federal income tax filings (the N-400 posed two questions concerning compliance with federal income tax laws) or proof of a marital union (for applicants applying under special provisions for spouses of U.S. citizens). In such instances, the case would be continued for a period of between 60 and 120 days, at which time the additional documents had to be produced before the application could be reviewed and adjudicated.
The law required the DAO to determine, after the interview, whether the application should be granted or denied "with reasons therefor." In practice, if the application for naturalization were granted, the DAO would simply stamp the application "approved" and return it to the naturalization applications clerks, who prepared the file for the oath ceremony. If the DAO determined that the application should be denied, the DAO prepared a written explanation of the factual basis for the recommended denial. Denials were reviewed by a supervisor and signed by the District Director or his designee.87
Naturalization in the United States had a long history as a judicial function. This judicial process involved objective determinations such as whether the candidate met minimum residency requirements, but it also required that the prospective citizen meet certain requirements that necessarily required a more subjective inquiry. The naturalization applicant has been required to demonstrate his or her "good moral character" and "attachment to the Constitution" of the United States since the original naturalization statute was enacted in 1790. Until 1990, the federal courts were charged with reviewing all the relevant evidence and making a final determination concerning a candidate's qualifications for citizenship.
Concerns about how INS evaluated applicants' "attachment to the Constitution" were not included among the allegations made about the CUSA program. The inquiry into "good moral character," however, was a topic of intense congressional scrutiny during the hearings on CUSA. Accordingly, our review here of the history of the subjective portion of the naturalization process is limited to a discussion of this requirement.
Having established that prospective citizens must show "good moral character," the legislature left to the courts the task of identifying the requirement's meaning and scope. By definition, the standard invited differing interpretations depending on the particular case before the court. Courts also did not agree on whether the applicant's conduct was to be viewed against the prevailing moral attitude of the nation as a whole or measured against the standards of the community in which the applicant resided.88 Also, even similar conduct within jurisdictions was subject to varying interpretations, as an array of extenuating or sympathetic individual circumstances gave rise to conflicting results.
In 1952, congressional concern over the disparate determinations of "good moral character" that had emerged from judicial decisionsled to the passage of the Immigration and Nationality Act of 1952, which continues to this day to form the basis for immigration law in the United States. Congress did not define "good moral character" in this legislation, but did enumerate, for the first time, certain acts or conduct that precluded such a finding. These acts included the commission of murder, and, during the 5-year period immediately before the application for naturalization, habitual drunkenness, adultery, polygamy, and prostitution, gambling as a livelihood, false testimony to obtain immigration benefit or the commission of specified criminal offenses.
However, in the absence of any of these specific disqualifications, the ultimate determination remained vested in the discretion of the decision-maker. As noted by the U.S. Court of Appeals for the Ninth Circuit in Torres-Guzman v. INS, 804 F.2d 531, 534 (9th Cir 1986), in addressing the determination of "good moral character" under the INA, "the inquiry into human character is an inherently open inquiry. The ingredients of human character may not be exhaustively specified." Congress did not purport in the INA to identify the full range of conduct that would demonstrate an absence of "good moral character." Instead, the law established minimum standards of conduct. Within the boundaries of these minimum standards, the courts still had to consider all relevant facts to make the determination of whether the applicant was qualified.
Over the years, although the judiciary retained the legal authority over granting naturalization, INS controlled more and more of the process.89 Since the 1920s, naturalization processing had depended to a large extent on the judgments and recommendations of administrative officers. The courts' dependence on this assistance grew over the years as the number of applicants increased. In 1926, Congress instituted a system that created naturalization examiners who were designated by the courts to hear evidence in naturalization cases and to make appropriate recommendations to the courts. Over time, courts commonly would defer to the recommendation of the naturalization examiner.
Consistent with the quasi-judicial nature of the work being done by immigration examiners, for many years INS required that examiners be attorneys. During the era of the attorney-examiner, applicants (then called "petitioners") were required to present character evidence through witnesses or affidavits.
Over time, however, although the legal requirement to conduct a case-by-case evaluation of the applicant's character did not change, the examination or interview process shed many aspects of its judicial character. The requirement of character witnesses was eliminated by statute in 1981. In 1983, INS began hiring "Immigration Examiners" (who were later redesignated as District Adjudications Officers) who were not required to have a law degree. This change in qualifications for the job of Immigration Examiner reflected the changes that were occurring in naturalization administration generally as the process moved from a judicially based system to an exclusively administrative one.
The Immigration Act of 1990, which amended the INA, made the de facto shift in naturalization from a judicial process to more of an administrative one explicit by transferring naturalization authority from the judiciary to the Attorney General. This transfer was generally regarded as caused by the huge demand for naturalization and the notion that an administrative procedure would be able to process cases more quickly than a judicial one.
Although the entity responsible for making the adjudicative determination changed, the substantive requirements, including the broad "good moral character" test, remained much the same. The INA continued to list essentially the same acts or conduct which precluded a finding of "good moral character" as were enumerated in the original version of the law.90 The Act also noted that the absence of specifically listed conduct "shall not preclude a finding that for other reasons such person is or was not of good moral character." Thus, although the administration of naturalization was no longer a judicial responsibility, the fundamental nature of the inquiry required an exercise of discretion after a review of all relevant information. This determination, originally entrusted to a judge, was now entrusted to the DAO.
By the 1990s, the naturalization interview process thus consisted of the DAO's review of the answers submitted to INS by the applicant on the Form N-400. While the N-400 covered topics that could potentially preclude an applicant from qualifying for citizenship, the DAO was expected to test those answers in a face-to-face interview to determine whether any areas required further exploration. How far the DAO should or could go in seeking information from the applicant beyond the pages of the N-400 was not defined, but was left to the discretion of the officer guided by experience, training, and supervision. This evaluation was not informed by information from INS-conducted background investigations; by 1991, the requirement of a personal investigation in the vicinity of the applicant's neighborhood and workplace could be waived by the district director, resulting in INS' abandonment of neighborhood investigations altogether.
We found, however, that INS Headquarters never provided specific guidance in this area. Even before CUSA the scope of the naturalization interview was defined differently in different offices and by different supervisors, with some being more aggressive than others about potentially disqualifying issues. For example, some DAOs believed that if they had any questions whether the applicant had filed income tax forms or paid child support they could continue the case and request that the applicant supply corroborating documentation. Other DAOs believed that absent concrete evidence of a possibly disqualifying issue, no further documentation should be required. This lack of a uniform view of the scope of the naturalization interview led to disparate practices in the Field.
The labor-intensive demands of CUSA were imposed onto these disparate practices, as discussed in the remainder of this chapter. Weaknesses that were already apparent—the lack of uniformity in decision-making and the lack of guidance concerning how to exercise discretion in evaluating an applicant's "good moral character"—were tested even further by an increase in the number of inexperienced officers conducting interviews and the time pressures that discouraged the pursuit of potentially disqualifying issues.
As discussed above, the quality of the naturalization interview, to the extent that it was more than just a cursory review of the N-400, depended on the training, judgment, and experience of the adjudications officer. During CUSA, a majority of INS' naturalization officers in the Key City Districts were new, temporary employees who had received abbreviated training in a course designed specifically for them.91 The premise of their training was that these new officers would adjudicate only pre-screened, simple cases in a supervised environment.
However, the premise of this training program was not communicated to the Field. Shortly after their training, these new officers were immersed immediately in a variety of naturalization adjudications with little time to learn the ropes. As a result, they were unprepared to handle the job they were assigned.
In the discussion that follows, we address the CUSA training program and focus in particular on the disparity between its design and the manner in which it was actually implemented. Although CUSA project managers asserted to the OIG that they had taken adequate steps to insulate naturalization adjudications from the predictable mistakes that might be made by the inexperienced workforce it engaged for CUSA, the record shows they failed to do so. The failure was caused by INS Headquarters' poor communication with and supervision of the Field during a period when all resources were being poured into reaching the production goals of CUSA.
Immigration Examiners and, later, District Adjudications Officers received training at the Immigration Officer Basic Training Course (IOBTC), much like all other immigration officers (e.g., deportation officers and immigration inspectors). This training, offered at the Federal Law Enforcement Training Center (FLETC) facilities in Glynco, Georgia, lasted 16 weeks.92
The naturalization-specific training offered to adjudicators at FLETC was not much more extensive than that later offered to temporary officers hired for CUSA. At FLETC, adjudicators received 24 hours of instruction on nationality law93 and five hours on the N-400 application. For CUSA trainees, the hours devoted to naturalization were similar, although the focus was reversed. CUSA trainees received 18 hours of instruction on the N-400 and 3 hours on nationality law. Neither training specifically taught adjudicators how to identify and evaluate the many factors that they should weigh and balance in determining "good moral character."
On the other hand, the 24 hours of instruction on nationality law at FLETC for permanent DAOs were supplemented by 80 additional hours of instruction on immigration law compared to the 4-hour block provided to CUSA trainees. The 80-hour course defined various immigration law terms and reviewed the INA, relevant sections of the Code of Federal Regulations and court decisions and also covered topics such as deportation and exclusion. In addition, FLETC provided six hours of instruction on criminal law, a resource unavailable to CUSA trainees. Overall, the 16-week FLETC course immersed the student in all aspects of INS' work and provided the new employee with the larger immigration context in which to understand his or her specific role. This training on other aspects of immigration, including understanding how a person enters the United States and becomes a permanent resident, helped naturalization adjudicators understand applicants' backgrounds and the contents of applicants' files.94
CUSA planners did not question the superiority of the longer academy training to the abbreviated CUSA course for preparing the DAOs. From the outset, INS Headquarters had planned that the temporary CUSA officers would only be assigned to adjudicate the simplest of naturalization cases and thus would not need the more thorough FLETC training.
The evidence establishes that INS' deployment of a large, temporary workforce with limited training contributed to a diminution of naturalization processing integrity during the CUSA program. The weakness of the strategy did not lie solely in the decision to hire temporary, rather than permanent, workers. Instead, it rested on INS' decision to hire such large numbers of new officers (making them the majority in the CUSA Key City Districts) and INS' expectations that, shortly after entering on duty and without appropriate training or supervision, the new officers could meet the high production expectations of CUSA. The major flaw in INS' plan was how it trained and deployed these employees and not in the choice of temporary workers per se.
However, the decision to provide CUSA officers an abbreviated training course was integrally tied to INS' decision to use a temporary staff in the first instance. In other words, the type of training the officers received flowed directly from INS' decision to meet CUSA's goals by relying on temporary DAOs. Because this decision informed subsequent training decisions, INS' reasoning for using temporary officers bears some commentary here.
INS officials interviewed by the OIG, including Deputy Commissioner Sale and Associate Commissioner Crocetti, said they recognized that using permanent officers rather than temporary employees would have been a better option in terms of the quality of naturalization adjudications. They contended, however, that the decision to use temporary officers was not a matter of choice but was instead a requirement forced on INS during budget negotiations with the Office of Management and Budget (OMB) and with Congress. Sale and Crocetti contended that their CUSA initiative relied to a large degree on temporary workers because they knewCongress would not otherwise approve their second reprogramming request submitted in November 1995. A congressional staff member involved in these budget negotiations told the OIG she strongly disagreed with this assessment.
Regardless of this conflict, a more fundamental point is clear—any detailed debate about the use of temporary versus permanent employees took place within INS and not between INS and congressional appropriations committees.95 INS did express a preference to Congress for hiring permanent employees, but not because of any concern about the quality of the temporary officers' work; rather, INS only cited its anticipated difficulty in retaining the new employees. Internally, INS officials spent more time discussing the attrition rate of temporary officers and the extent to which the Service would be required to continue to hire new people and process their security clearances rather than the new employees' ability to evaluate an application for naturalization. INS' reprogramming request in November 1995 was predicated on the belief—and INS gave Congress no reason to question the assumption—that temporary officers could be appropriately deployed to adjudicate naturalization applications.
Indeed, using temporary adjudicators was more consistent with INS' philosophy of backlog reduction and naturalization streamlining that eventually led to the CUSA initiative. CUSA was never intended to permanently swell the ranks of INS adjudicators. Instead, it was a program designed to address the backlog and reach "currency" in naturalization applications so that in the future a new, "reengineered" naturalization process could become reality. This reengineered naturalization system of the future would depend even less on adjudicators. In the reengineered process, interviews would be waived for qualified candidates (see discussion of waived interviews, below), testing would be standardized and handled by outside agencies, and increased participation by CBOs would reduce to a minimum the amount of time an INS adjudicator would have to spend face-to-face with the applicant. A huge, permanent adjudication workforce would be obsolete in such an environment. Consequently, INS' decision to deploy a workforce of temporary workers that could address the backlog (using some techniques borrowed from "reengineering" discussions) and then disband it was exactly what some INS Headquarters officials had in mind.
At the heart of INS' belief that it could address naturalization backlog reduction with a temporary workforce was its experience with the Legalization (or "Amnesty") program of the 1980s. During the Legalization program, INS opened multiple regional processing facilities separate from its district offices and deployed hundreds of temporary adjudicatorswho played a major role in adjudicating approximately three million applications for adjustment of status. This experience with temporary adjudicators provided INS officials with a sense of security that again, for a short time, it could rely on such workers to help get an adjudications crisis under control. The temporary legalization workforce, like the CUSA trainees, had received a focused, abbreviated training program designed to teach the new employees how to perform the single task for which they had been hired.96
In addition, INS had experience using officers who had not been trained at IOBTC to adjudicate cases. Because FLETC had to prioritize training requests from many federal agencies, FLETC could not always immediately accommodate all of the INS training needs in the years preceding CUSA. District Adjudications Officers, therefore, did not always receive formal training before they began their duties.97 Under such circumstances, officers received such informal on-the-job training as was offered at their district until space at FLETC became available. In some cases, the adjudicator did not attend the FLETC academy until many months after assuming his or her duties in the Field. While INS officials agreed that this was not the ideal way to train new employees, it proved a workable compromise since permanent, experienced officers outnumbered the new hires and were available to provide guidance and supervision. Even before CUSA, therefore, it was not unusual for a DAO to begin adjudicating naturalization cases without having had formal academy training. CUSA planners thus believed that hiring a temporary staff and providing at least some naturalization training before they began work would be an improvement over INS' previous practice.98
The position-specific training program for temporary CUSA adjudicators also was consistent with the training philosophy that was then emerging from INS' reassessment of its use of academy training. In 1994, when INS was working on plans to expand the Border Patrol, it began to examine whether it was cost-efficient to provide everyone in its officer corps the same training, from carrying firearms to adjudicating applications for naturalization. INS officials began to focus on the possibility of revising the Immigration Officer Basic Training Course to eliminate portions superfluous to certain jobs, such as weapons training for adjudicators. In addition, INS' Training Branch proposed the development of basic training "modules" that would be exportable to sites other than the FLETC academies in Glynco and Artesia, New Mexico.99
On September 26, 1995, CUSA organizers assembled in Washington a team of INS employees from each of the Key City Districts and an instructor from FLETC to develop a training program that could be used in the Key City Districts to train prospective CUSA adjudicators to handle "routine naturalization applications." The new adjudicators' work would be limited to "routine" cases by two strategies. First, the cases assigned to them would be "pre-screened" before scheduling to ensure that only simple cases were assigned to new adjudicators. Second, naturalization adjudication under CUSA would take place in a "primary/secondary" setting in which the new or "primary" adjudicator would have the option of referring a case that appeared too complex to a more seasoned or "secondary" officer. According to the minutes of this meeting and Paul Pierre (the group leader and the instructor from FLETC), INS Headquarters did not specify the length of the proposed training. The group was told that the training program should "take as much time as necessary to effectively prepare [the] recruits to produce quality work."
INS officials told the OIG that there was never any question that a certain percentage of naturalization cases would require experienced personnel to adjudicate the application. For that reason, as Commissioner Meissner told the OIG, the temporary officers' training was predicated on the premise that the new adjudicators would be given only "straightforward, routine work" because they were not "full-blown" examiners. As David Rosenberg, the INS Headquarters official in charge of training for CUSA explained, new adjudicators "were supposed to be assigned to what was called routine or simple cases where the evidence was fairly clear with the documents." CUSA organizers believed that most of the cases that would be adjudicated during CUSA would, in fact, be "routine," and this belief was evident in the fact that the new recruits would outnumber the existing adjudications staff in the Key City Districts by a ratio of almost three to one.
For these new recruits, then, INS essentially followed the theory of "modular" training and based the CUSA training curriculum on the portion of IOBTC that focused on naturalization. The design team met for three days and debated, among other things, about how long the training course needed to be. Ultimately, they decided on a 40-hour training package for new CUSA adjudicators.
Almost half the training was devoted specifically to the N-400, including topics such as "basic procedures," "scheduling practices," and "commonly raised issues." The training also included four hours on interview techniques, three hours on ethics, four hours on basic immigration law, and three hours on nationality law. The CUSA course devoted more time (18 hours) to adjudication of the N-400 than did IOBTC (5 hours) but, as noted at the outset of this chapter, much less time to general nationality law (3 hours versus 24 hours) and immigration law (4 hours versus 80). The training contemplated on-the-job training for new adjudicators after the completion of the classroom training, although no specific period of time was identified.
According to Pierre, the leader of the group that developed the CUSA training curriculum, INS' plan to "pre-screen" cases before they would be assigned to a temporary adjudicator resulted in the group's decision to omit various aspects of the immigration process normally covered in IOBTC. Because the new adjudicators were not expected to handle cases involving anything out of the ordinary, the CUSA training program did not include training on deportable offenses or, with a few exceptions such as conviction for an aggravated felony, on the factors that precluded an applicant from being eligible to naturalize. As noted previously, like the IOBTC, CUSA training also did not include specific instruction for new recruits on exercising discretion in the determination of "good moral character."
Pierre said that the training did not prepare adjudicators to operate effectively in an environment where they were required to adjudicate more complicated cases. Therefore, unless cases were pre-screened the training was inadequate to permit adjudicators to discharge their duties responsibly. In addition, even with pre-screening, some cases would not be recognized as problematic until after an interview had begun. New officers also had to be able to refer those cases to a more experienced "secondary" officer.
The minutes of the training group's September meeting, as well as interviews of Rosenberg and Pierre, revealed that the notion of "pre-screening" cases assigned to the new CUSA adjudicators was fundamental to the success of the abbreviated training program. Pre-screening, however, was not an aspect of the training program that was developed by the group at their September meeting. Instead, the training group assumed that the more complex cases would be screened out "way in advance" of the interviews and the group's focus was only on creating a training program that would prepare new examiners to handle their relatively "simple" interviews.100
The participants at the September meeting did not consistently recall any emphasis on putting the new adjudicators to work in a primary/secondary-processing environment. Most remembered the issue being discussed at some point after CUSA had been implemented, but most also believed it had no practical application for his or her district. In other words, most of the Key City representatives at the training meeting had heard about the idea but had not paid much attention to it.
Thus, the people who developed the training package for temporary CUSA adjudicators did not concentrate on how to ensure that the new adjudicators would be placed only in an environment in which their training would be appropriate. Instead, they focused on what the training should be assuming that the appropriate conditions in the districts existed. As Rosenberg pointed out to the OIG, exactly how cases were to be "pre-screened" or otherwise assigned to adjudicators was viewed as a "local issue" within the authority of the districts. However, INS Headquarters failed to engage the Field in discussions about whether "pre-screening" would be feasible either before or after the September planning session. Further, the Field was not effectively advised of the fundamental assumptions underlying the new officers' training and, therefore, was not warned about the critical importance of pre-screening cases. We found that INS Headquarters essentially left to chance whether the Field would employ the temporary adjudicators in a manner that was consistent with their limited training.
Although many witnesses told the OIG that one week of classroom training for a naturalization adjudicator could never be adequate, for purposes of our report we assume that the temporary training program designed for CUSA could have been an effective and responsible approach if INS had ensured that it was implemented in a manner consistent with its design. In other words, it is beyond the scope of this report to determine whether the training model developed could have been sufficient. What is more appropriately addressed here is the manner in which the model was actually implemented and the effects of INS' failure to ensure that temporary adjudicators would be used only in a manner consistent with the limitations of their training.
The first step in the implementation of the CUSA training program was the "Train the Trainer" session held in Glynco from January 23-25, 1996. The CUSA training design group had determined that the program would be implemented by training employees from each of the Key City Districts and then relying on those trainers to return to their districts to teach other employees. INS had previously employed this "train-the-trainer" approach in order to offer courses in district offices. The design group assumed that the INS employees attending the Glynco meeting would be the lead trainers in their home districts.
The purpose of the Glynco session was to familiarize the officers who would train the new adjudicators with the course materials, and by so doing standardize the instruction the new-hires would receive. The session also included a "speak well" program designed to teach the trainers how to deliver the training materials effectively. Although the issue of on-the-job training was not addressed specifically at the January session, the trainers in attendance at Glynco agreed among themselves that new adjudicators who completed this 1-week course should also complete one week of on-the-job training.
Pierre, the FLETC instructor who chaired the September meeting, taught approximately half of the January "train-the-trainer" session. He told the OIG that the participants were instructed that the CUSA training course they were being trained to facilitate had been designed only for temporary DAOs who would be handling simple, pre-screened applications. He also noted to the OIG, however, that his role in the process had been limited to developing the training package, and it was clear to him that how it would be applied was up to INS Headquarters and the Field.
Although we do not doubt that "pre-screening" was mentioned at the January session, the evidence indicates that the limitations of the training course under discussion were not conveyed effectively. Trainers from the Key City Districts told the OIG that they did not learn at the session that temporary DAOs should get "pre-screened" cases or that the adjudication process contemplated a "primary/secondary" review system. The lack of emphasis on this fundamental aspect of the CUSA training program was consistent with the training design group's sense that, although they were to convey the training curriculum to participants at the January meeting, its implementation was the Field's responsibility.
INS Headquarters did not, however, instruct the Field about the limitations of the new officers' training and the need to assign these temporary adjudicators only routine naturalization cases. Rosenberg suggested to the OIG that this lack of action on Headquarters' part was out of respect for or deference to the Field. According to Rosenberg, by the December 1995 meeting in Washington, D.C., Headquarters was already experiencing some resistance from the Field about CUSA and, in his opinion, "there would have been a walk-out" if Headquarters had told the Districts exactly what procedures to follow. He noted that procedural matters regarding how cases are processed and assigned were matters traditionally left to the discretion of the district. So, instead of instructing the Field that the new officers were to be assigned only routine cases, the deployment of the temporary officers was "discussed" with Field managers. Rosenberg said assigning the new officers only to simple interviews "was certainly the direction, the emphasis [Headquarters] wanted people to have."
We found that INS Headquarters went so far in deferring to local autonomy that it did not even advise the Field of the fundamental assumptions underlying the CUSA training approach. In general, trainers and managers in the Field knew that the new officers would be best suited to adjudicate simpler cases, but that was more a function of common sense and not Headquarters' instruction. Field managers did not widely understand that INS had deliberately designed the training to equip the new officers to process only simple cases; instead, they inferred from the brevity of the training that this was all the temporary officers were likely to competently undertake. The problem was that instead of being encouraged, much less instructed, to create an adjudication system to accommodate the new personnel—e.g., instituting systematic file reviews and having primary and secondary officers available at an interview site—the Field was left alone to use the new employees in whatever way it deemed appropriate. Some offices recognized and responded to the limited nature of the temporary employees' training and made adjustments to their methods of assigning cases.101 Others, however, understood the message from Headquarters differently. These offices did not believe that Headquarters was asking that they change their methods; they believed that Headquarters was essentially demanding that they increase their rate of production, and that they were to do this using new, inexperienced, lower-grade, temporary officers who in every district outnumbered the more experienced staff.
As previously discussed, the CUSA training program assumed that temporary officers would be assigned pre-screened cases that they could refer to a more experienced adjudicator if need be. The evidence shows that most CUSA offices did not implement these procedures or, for that matter, any quality-control measures to help ensure that temporary officer were appropriately adjudicating cases. Where such measures were implemented, they were not the product of any leadership provided by INS Headquarters, but rather resulted from local managers' independent efforts to improve the adjudication process.
The first quality control measure contemplated by the CUSA training curriculum—the pre-screening of cases assigned to temporary adjudicators—was never implemented. For the most part, we found that trainers and managers in the Key City Districts were unaware that the CUSA training design depended on pre-screening of the assigned work. No Key City District implemented a pre-screening process. Indeed, given the nature of the pre-screening concept, it is difficult to view its implementation as a serious proposition. Pre-screening would have required that each naturalization case undergo not just one but at least two reviews. The first review would have to be done by an employee who had enough experience to separate the simple cases from those that were complex, consuming a great deal of time and tying up one or several experienced adjudicators. At a time when the Field was trying to find ways to process cases more quickly, adding another level of review was likely to be perceived as counter-productive.102 Rosenberg told the OIG that even though Headquarters had "assumed" there would be some pre-assignment review of cases, he thought cases had most likely been assigned to adjudicators in the conventional "rotational order."
Only one CUSA site—the El Monte office in the Los Angeles District—implemented the second quality-control measure, the adjudication of naturalization cases in a primary/secondary setting. Temporary adjudicators at the El Monte office were arrayed like tellers at a bank. When an adjudicator became available, a clerk would deliver a file along with the next applicant. The temporary officer conducted the preliminary interview. If a problem arose that required more in-depth questioning or pertained to an issue outside the officer's expertise, the applicant was directed to a secondary officer who would conduct a longer interview with the applicant.
The Los Angeles District did not design the El Monte system because of the limited CUSA training. Rather, the District adopted the system to increase production and modeled it after airport inspections because local officials viewed this as an efficient method of processing people more quickly. The "next available officer" approach meant that an applicant did not have to wait until a particular adjudicator, who might have been delayed with another applicant, was free. Nevertheless, Los Angeles was the only Key City District to create in one of its offices—albeit unintentionally—an adjudication environment that resembled the setting for which the temporary officers' training was designed.
The effectiveness of the primary/secondary examination approach as a quality-control measure was limited in the absence of prior review or pre-screening. The primary/secondary strategy was to be used in addition to the pre-screening of cases despite the obvious inefficiencies. Not every case that might strike an adjudicator at interview as complex could be weeded out in advance, and thus the primary/secondary format gave the temporary officer a method of handling a case that had not been initially considered complex but was recognized as such at the interview. Without pre-screening, the primary/secondary strategy assumed that the temporary adjudicator had enough training to recognize a complex case. That assumption, however, was misplaced. According to Pierre, new officers trained for the CUSA program would not necessarily be able to discern such issues.
Some, including Rosenberg, argued that in many instances any adjudications officer would be able to determine whether a case was straightforward or complex by reviewing the documents in the file. Clearly, if an applicant's file was thick with previous deportation orders or arrest warrants, even an adjudicator who had not been trained about such matters would be on notice that the case could be "complex." The ability to make even that determination, however, was dependent on the adjudicator having access to the applicant's file. As discussed elsewhere in this report (see our next chapter on A-file practices), temporary adjudicators during CUSA often had to make their determinations without the benefit of reviewing the permanent file. At the El Monte site, because of its "next available officer" design, the temporary adjudicator did not have an opportunity to review the application or the file before the applicant arrived in front of him or her for an interview. Even on those occasions when the permanent file was available at the interview, it was not possible to review it before the interview began. In any event, even if a file was available, and even if the adjudicator had time to review it, these new officers had not been trained to understand the significance of most of the documents it contained.
Temporary adjudicators and supervisors who worked at El Monte criticized the working conditions at that site, as described later in this chapter. However, despite the pressure the officers were under, the evidence shows that the El Monte officers were more likely to refer a case about which they had questions to a senior adjudicator than were Los Angeles adjudicators in other locations that did not employ a primary/secondary strategy.
In interviews with the OIG regarding the quality of the adjudicative process, several "primary" adjudicators who worked at El Monte specifically noted that they would refer cases to another officer if the applicant had a criminal conviction. In the primary/secondary setting, it was easy to get another officer's evaluation of a case because the senior officers were available at the same site on the same day. Upon referral, the secondary officer could make a determination of the applicant's eligibility or, if the applicant needed to provide additional documents, could continue the case for a "reexamination" on another date. Although temporary officers at other locations also could refer a question about an applicant's criminal history to another adjudicator, that referral would constitute a continuance of the case for reexamination on another date at the Continued Unit downtown. Temporary officers at El Monte thus had access to a second opinion without having to continue a case to another examination date. Although we found no evidence that any Los Angeles officer was explicitly instructed to adjudicate a case about which he or she had an eligibility-related question, continuances were discouraged both by on-site supervisors and by the District's Continued Unit, which was swamped with work. In contrast, the temporary officer in the primary/secondary setting had the opportunity to obtain another officer's view of a case without feeling pressure for continuing a case.103
Having access to more experienced officers was particularly useful to the primary adjudications officer when an applicant failed to admit an arrest that was reflected in his or her FBI criminal history report. In Los Angeles locations that operated under the traditional model, the interviewer could recommend a denial if the applicant failed to admit an arrest and the interviewer determined that the applicant deliberately was misrepresenting his or her history. Such a denial required that the officer take a statement from the applicant to document the misrepresentation before continuing the case. In the primary/secondary setting, an officer faced with an applicant who did not admit an arrest could refer the case to a secondary officer. In such cases, the primary officer was not required to prepare an applicant statement. The secondary officer, generally a more experienced interviewer, either could clarify any misunderstanding with the applicant or better document the misrepresentation and thus support the denial. Again, although primary officers were not encouraged to shift responsibility to secondary officers, the primary/secondary system afforded them an option short of continuance for handling the more complicated case.
The El Monte example illustrates the way in which the primary/secondary process could improve quality control. However, it was not a processing model that inherently was more reliable than the traditional model of preliminary interview followed by reexamination if necessary. Under both strategies, applications that raised questions for a temporary officer could be assigned to a more experienced adjudicator. In times of great demand for naturalization interviews and pressure to complete as many cases as possible, however, continuances undercut the timely attainment of the CUSA objective. Aside from the fact that a reexamination was inconvenient to applicants who had already waited a long time for the initial interview, rescheduling inherently was less efficient than completing the case on the day it was first scheduled. Beyond these intrinsically inhibiting factors, we found that during CUSA continuances were explicitly discouraged. Even in an environment where continuances were implicitly or explicitly discouraged, the availability of secondary officers meant that cases too complex for the new adjudicator could nevertheless be referred to an officer with greater experience.
Outside of El Monte, no CUSA office instituted a primary/secondary adjudications strategy.
Headquarters officials' position that a temporary workforce could be deployed quickly and appropriately for the CUSA project rested not just on the assumption that a tailored training course could be designed and implemented, but also on the premise that these new employees would be adequately supervised. As Deputy Commissioner Sale told the OIG, "it's not as though you started from zero and built an entire organization with all temporary employees, all of whom knew nothing and had never sort of worked here before. There was a structure that had, that presupposed journeymen supervision on the part of experienced personnel." Similarly, Commissioner Meissner told the OIG that CUSA relied on the "supervisor structure to work the way it should work." At the same time, INS Headquarters recognized that temporary officers would require more supervision than permanent, fully trained officers. The adequacy of this supervision, like other aspects of new adjudicator training discussed above, was left to Field managers' discretion with little input from Headquarters. With the huge influx of new personnel and the resulting lack of proportion between experienced and inexperienced staff, however, few offices succeeded at offering adequate supervision.
Managers in two Key City Districts, Miami and San Francisco, took it upon themselves to enhance the basic new officer training by making adjustments that were geared toward providing new employees more access to supervisors or senior staff. Even in these districts, however, the number of new employees was too great to permit adequate supervision, particularly during a time when experienced personnel were focused primarily on meeting production goals. In contrast, the New York District's CUSA office was staffed almost exclusively with temporary personnel, and the District provided even less supervision to these new recruits than it had in previous years to its permanent staff. The evidence shows that the goal of increasing production overshadowed the attention that INS should have paid to supervising these new officers.
(a) Miami District's two-tier processing
No Miami District manager or trainer we interviewed was aware that CUSA training presumed that new adjudicators would be assigned to work only on simple cases or that they were supposed to "pre-screen" cases. Even though the Miami representative at the September training design session did not become a trainer of CUSA hires when she returned to her district, it would not have mattered—she told the OIG that she did not recall any discussion of "pre-screening" cases and only remembered occasional mention of the "primary/secondary" adjudication system.
The Deputy Assistant District Director for Naturalization (DADDN), Elaine Watson, and several supervisory DAOs told the OIG that they were very concerned that temporary adjudicators hired "off the street" with no immigration experience would be adjudicating N-400s. DADDN Watson told the OIG that she knew it was impossible to hire and train new employees for applicant interviews in such a short period of time. Because of these concerns, Miami naturalization managers created a two-tier system for interviews in which temporary officers conducted initial or preliminary interviews and the more experienced adjudicators conducted reexaminations. When the temporary officers needed additional information or when a question arose that they could not answer, they continued cases for a reexamination on another day. In addition, we found that these temporary officers in Miami were encouraged to ask questions of the more experienced officers and, in contrast to the Los Angeles District, to continue cases about which they had questions or doubts. In part, DADDN Watson implemented this two-tier system because she doubted the temporary adjudicators' ability to assess eligibility and therefore wanted to limit their discretion.
Despite Watson's concern, the effectiveness of the Miami District's response—the two-tier system—was limited by the system's dependence on the presumption that a temporary officer with minimal training would be able to recognize a complex issue in a naturalization case.104 This shortcoming in the system was true especially by the late summer in the Miami District, when adjudications were often conducted on the basis of temporary files (see our next chapter concerning A-file policy and practices). Moreover, encouraging the new hires to ask questions of their supervisors often yielded only frustration to the temporary officers because of the disproportionate ratio of temporary officers to supervisors. DAOs told the OIG that the constant line of people waiting to ask questions was a disincentive to temporary officers because the time spent waiting for an answer was time that could not be spent conducting interviews.
The effectiveness of Miami's attempt to bolster a training program it considered inadequate also was undercut by the District's resource limitations. Before CUSA, Miami District employed approximately ten permanent DAOs, seven of who conducted naturalization interviews. The seven permanent DAOs, who all had considerable experience in naturalization, were supervised by one SDAO. Throughout most of CUSA, when the number of inexperienced adjudicators had increased seven-fold, only two supervisors devoted all of their time to supervising the temporary adjudicators. By June 1996, the Miami District Office was scheduling interviews for 50 temporary officers six days a week. A third experienced supervisor helped to supervise these officers in addition to making caseload assignments and handling complaints from the public.105 Thus, during CUSA the ratio changed from 1 supervisor for 7 experienced officers to 2 or 3 supervisors for 50 inexperienced officers.
DADDN Watson and two of the three SDAOs who supervised the temporary officers acknowledged in interviews with the OIG that they did not have enough supervisors to adequately supervise the new hires. One SDAO reported that supervisors raised this issue to DADDN Watson and CUSA site coordinator John "Jack" Bulger at the time, but that Watson and Bulger replied that there was nothing they could do to obtain more supervisors. Bulger informed the OIG that the issue was raised with the Eastern Regional officials who advised that more supervisors would not be authorized.
(b) Supervision in the San Francisco District
Office
Miami District's two-tier system recognized the limitations of the new officer training even though it ultimately foundered on the lack of supervision and its faulty assumption that new examiners could recognize potentially disqualifying issues. The San Francisco District, reacting to the same problem, devised a useful supplement to the 40 hours of classroom training: a mentor program in which senior DAOs in the San Francisco District Office were excused from interviewing in order to monitor the work of new hires. The new temporary adjudicators had to present every case to their assigned mentor and were not permitted to approve cases on their own until they reached an acceptable level of competence. The two San Francisco trainers also produced weekly continuing education briefs that included feedback on common mistakes noted by mentors and supervisors. Several DAOs and managers specifically cited the mentor program to the OIG as a needed quality-control measure.
Unfortunately, this effort to address the limitations of the new officer training was not implemented uniformly throughout the District. New adjudicators in Sub-offices throughout the District grappled with interviews without the benefit of the main office's mentoring program.106 ADDA David Still, although he considered himself in charge of CUSA, told the OIG that he did not discuss San Francisco's mentoring program with the Sub-offices and did not suggest that they implement the same system. He stated that ensuring adequate training and supervision of temporary officers was the job of the Officer-in-Charge at each Sub-office. We found no indication, however, that these Officers-in-Charge understood CUSA training to be their responsibility. Consequently, the San Francisco District mirrored within its boundaries the same laissez-faire approach to training that existed between INS Headquarters and the Field.
Working conditions in the San Francisco District's Sub-offices made it less likely that they spontaneously would adopt enhanced training or monitoring procedures during CUSA. Personnel in these Sub-offices were under greater time pressure to process cases than staff at the District Office. The District Office had more clerical and managerial resources and reached its goal of naturalization backlog "currency" by the beginning of the summer of 1996. Managers in the District Office could afford to spend more time supervising the temporary officers because the main office was not struggling as hard to meet CUSA's production goals as were the Sub-offices.
Indeed, in contrast to the mentoring program in San Francisco's main office, the admittedly inadequate CUSA training was not even wholly implemented in one of the Sub-offices. We found that new adjudications officers assigned to the Fresno office received only three days of the five days of classroom training followed by two or more days observing senior adjudications officers.107 No senior DAO (other than the temporary supervisors) was stationed at the Fresno site to mentor or otherwise assist the temporary officers. Assistant District Director for Adjudications David Still said that he had suggested transferring some experienced adjudications officers from the main Fresno office to the CUSA site to help the temporary employees, but Donald Riding, the Officer-in-Charge in Fresno, declined. Riding told the OIG that he made the decision not to place senior DAOs in the CUSA office to process naturalization applications because Fresno's main office had a large backlog of adjustment of status applications that were more difficult to adjudicate and required the attention of experienced DAOs.108
The effect of limited resources also was felt in the San Jose office, which attempted to implement a modified monitoring system. CUSA training in San Jose consisted of 40 hours of classroom education followed by a week of on-the-job training. During that week, the new officers were assigned to adjudicate ten cases per day. At the end of each day, the CUSA trainer reviewed their files and provided feedback. As the size of the classes grew larger, the trainer selected a sample of each person's work or asked each new officer to show her a case in which he or she had questions.
The San Jose trainer, however, was promoted in May 1996 and assumed supervisory duties over the temporary officers at the CUSA site (where one other SDAO was assigned). During CUSA, the same trainer/TSDAO also served as the point of contact for both the Designated Fingerprinting Services (DFS) program and the Fingerprint Clearance Coordination Center. As CUSA advanced, she began receiving huge stacks of fingerprint cards and rap sheets from the FBI several times a week. She personally reviewed the rap sheets and made queries for each in INS databases. As a result of her increased responsibilities, she told the OIG that she was "swamped" in her various duties and could not devote as much time to training as she would have liked. The only other on-site supervisor told the OIG that the temporary adjudications officers in San Jose were not well monitored, noting that she, too, had scheduling and other administrative responsibilities unlike first-line supervisors in the District Office.
The potential vulnerability of INS' strategy of using a large number of inexperienced officers to meet CUSA's production deadlines was most fully realized at the New York District's CUSA site in Garden City on Long Island. Without explicit guidance from INS Headquarters about how to deploy the temporary adjudications staff, local management made personnel assignments—such as staffing a new office almost entirely with temporary staff—that failed to provide the new employees with adequate supervision.
Because the new adjudications officers at the Garden City site completed thousands of cases per week, Garden City was considered at the time a CUSA success story. This level of production, however, was achieved using newly hired officers who were under-trained and under-supervised and yet expected to handle the same number of cases as experienced officers. INS management's perception that Garden City was a success illustrates CUSA's focus on production at the expense of quality.
Although District management had first-line responsibility for the staffing decisions made in the New York District, the Garden City story cannot fairly be described as solely the failure of local management, as was asserted by INS Headquarters officials in interviews with the OIG once Garden City-style processing had been soundly criticized in the wake of CUSA. We found that the decisions made by managers in New York were consistent with what Headquarters had encouraged Field offices to do with respect to CUSA production.
(a) Choosing the Garden City site and staff
Before the opening of its CUSA site, New York District's naturalization adjudications took place at the District's offices in Manhattan and Brooklyn. The Brooklyn office was the larger of the two sites. In selecting a new location for a CUSA office, District managers chose Garden City on Long Island because, according to ADDE Richard Berryman, the existing INS offices had no room to expand and 70 percent of the New York District's applicants came from Long Island.
Although the ADDE reported that District managers always had intended to staff any new site primarily with temporary officers, other managers, including District Director Edward McElroy, advised the OIG that they intended the new site to have a good mixture of temporary and permanent personnel. No New York manager told the OIG that he or she was aware at the time that CUSA adjudicators were specifically trained to handle only routine, pre-screened cases or for adjudications only in a primary/secondary setting. These managers told the OIG that their presumption about mixing experienced and inexperienced staff at the new site was simply a function of common sense. This common sense principle, however, was not enforced.
According to Rose Chapman, the New York District's Naturalization Section Chief, the selection of Garden City as the District's CUSA site was a crucial factor in the New York District's failure to staff the site with officers of different experience levels. When the Garden City site opened in April 1996, it was already behind schedule as were many other INS naturalization offices opened during CUSA.109 New York District managers attempted to recruit volunteers from its journeyman staff to work in Garden City. Because it was a difficult commute to the Long Island site for employees who worked and lived closer to Brooklyn and Manhattan, and because Garden City was in a geographical area with a lower pay scale, only a few permanent employees (who lived on Long Island) volunteered for reassignment. Anticipating objections from the union that represented the adjudications officers, New York management did not transfer permanent employees against their wishes.110
As a result, Garden City was staffed with more than 100 temporary officers and 60 temporary clerks. The only permanent staff assigned to Garden City were the site manager, two recently promoted temporary supervisory adjudicators with no previous supervisory experience, and a clerical supervisor. Later, in June 1996, a third temporary SDAO was assigned and a permanent adjudicator was added in July. Two additional acting supervisory adjudications officers were assigned to Garden City, but their duties did not include supervision of temporary officers (one supervisor was in charge of closing out cases and the other one acted as a senior adjudicator).
The two newly appointed, temporary SDAOs told the OIG that they were expected to provide supervision to the more than 100 temporary officers. Instead of the ratio of one supervisor for every 10-15 experienced officers to which they were accustomed, they each assumed their duties with more than 50 inexperienced officers to supervise. Although these temporary officers had received the full 40-hour CUSA training course, many managers within the District regarded the training as insufficient to prepare officers to adjudicate the wide variety of naturalization cases in an environment like Garden City. Consequently, one of the Garden City supervisors told the OIG that he had little time to do anything other than spot-check the new employees' work.
(b) District-level management of Garden City
The Garden City supervisors and the site manager all told the OIG that they frequently complained to Naturalization Section Chief Chapman that they needed additional supervisory staff. When none came, they devised their own makeshift mentoring program, using temporary officers who had at least a few weeks' experience to review the newest employees' work. They designated "team leaders" for each team of temporary officers and the team leader had the responsibility to bring the team's questions to the supervisor. The District Director learned of this practice when he was asked about it in his interview the OIG, and in response he said it was "like becoming a platoon leader because you're the only one left alive." For their part, the temporary officers resented this structure as an inadequate substitute for real supervision, and the practice was stopped in June 1996.
In interviews with the OIG, New York managers engaged in a certain amount of finger pointing about where the responsibility lay for the decision to staff Garden City almost exclusively with temporary personnel. Although the evidence is clear that the Garden City supervisors and site manager reported their concerns up through their chain-of-command, the record contains conflicting evidence once the issue reached the Naturalization Section Chief. Section Chief Chapman told the OIG that she discussed with ADDE Berryman her concerns about Garden City's staffing, but that the discussion ended without any progress when it became clear that she already had unsuccessfully attempted to solicit more journeyman volunteers. The ADDE, on the other hand, denied that his subordinates had explicitly advised him that Garden City required more journeyman officers. It is far from clear, however, that he would have regarded such discussions as necessitating remedial action because he believed that the temporary officers did not need much supervision to adjudicate N-400s. In fact, he told the OIG that he believed that assigning four SDAOs to Garden City was sufficient, despite his recognition that this did not conform to the customary INS ratio of supervisors to adjudications officers. He explained that he would not have been concerned about this ratio absent learning that things in Garden City had been "grossly amiss."
Deputy District Director Mary Ann Gantner, who acknowledged that she was aware that very few journeyman officers volunteered to go to Garden City, said she was never informed that Garden City needed additional permanent staff. District Director McElroy said he was unaware that Garden City was staffed almost exclusively with temporary officers and said that the first he learned of it was when he was interviewed by the OIG in 1998. He told the OIG that it was wrong to have allowed Garden City to operate in this fashion and stated that learning of it made him "angry." He said he had specifically asked his senior managers, although he could not recall who,111 to ensure that Garden City was staffed by a mixture of permanent and temporary personnel. Although he made two trips to the Garden City site during CUSA, he told the OIG that he had not been made aware of the staffing situation during those visits.
The Garden City situation was, in some respects, a microcosm of the development and implementation of CUSA generally. The District Director (the top level of management) readily condemned the situation, but maintained that he had no idea what was happening in his District, despite ample opportunities to observe the situation first-hand and a clear responsibility to be aware of significant issues in the District. The ADDE, whose responsibility for field practices was more direct, simultaneously defended Garden City's unreasonable supervisor-to-officer ratio while blaming his subordinates for not advising him that the situation needed to be corrected (although the subordinates insist that they told him). Finally, the field-level supervisor (Section Chief Chapman), once she had voiced her concerns, felt that the circumstances afforded her little choice but to implement the policy set forth by her superiors. Thus, the on-site supervisors did what they were told and managed as best they could while higher level district officials appeared oblivious or indifferent to problems that should have been self-evident. Management was detached from obvious problems and thus failed in its duty.
(c) Headquarters-level management of
Garden City
In interviews with the OIG, INS Headquarters officials condemned the Garden City situation but asserted that it was caused by the failings of local management. Rosenberg characterized it as "appalling" but asserted that he had not known about it at the time and that, in any event, the New York District managers would not have been receptive to intervention by Headquarters. As he put it, there was a saying at INS that there was a "right way, the wrong way, [and] the New York way." Crocetti said he learned about the Garden City staffing situation when he visited the site after CUSA in early 1997. He told the OIG that he would not have chosen to staff Garden City in the same way and asserted that, when he returned to Washington, he made efforts to improve their supervisor-to-officer ratio. Commissioner Meissner said she was unaware of the Garden City situation until she was interviewed by the OIG and she reacted to the information by telling the interviewers that such a disproportionate ratio of supervisors to inexperienced personnel was simply "wrong."
Although we found no evidence to contradict the contention of key CUSA managers at Headquarters that they were unaware of the staffing situation in Garden City, the lack of awareness was itself a management failure that again typified Headquarters' focus on production rather than on careful adjudications. Headquarters officials knew that opening Garden City would almost immediately triple the number of interviews in New York to more than 2,000 per day, an increase in production that would be primarily borne by inexperienced adjudicators. Although Headquarters officials may not have specifically anticipated the Garden City situation, we found the risk that new adjudicators would operate under circumstances that failed to recognize their limitations was foreseeable. Moreover, some information that the New York District was having difficulties staffing Garden City with permanent officers did reach Headquarters senior Field Operations personnel without prompting any reaction or intervention from Washington.
Apart from generalized discussions at the December 1995 meeting, INS Headquarters did not emphasize to the Field the importance of establishing appropriate working environments at the CUSA sites. During Rosenberg's March 1996 trip to New York before Garden City opened, his emphasis was not on the training or supervision of the new officers even though 118 temporary adjudicators would be added to a naturalization staff that had previously numbered 24.112
The circumstances under which adjudications were conducted in Garden City reflected INS Headquarters' same failure to monitor implementation of a new program that afflicted the CUSA training program described earlier. Even assuming that Headquarters' most optimistic expectations about the training and abilities of new adjudicators were accurate, the success of these new employees was dependent upon their proper deployment and adequate supervision. In the absence of deployment that recognized the new adjudicator's limitations, a decline in the quality of adjudications was inevitable. As one Garden City supervisor who harshly criticized the training and supervision of new adjudicators told the OIG, "the government got what it paid for."
The failure to deploy temporary adjudicators during CUSA in a manner consistent with their training reflected, in part, an absence of monitoring or evaluation. CUSA Headquarters managers viewed such efforts as unnecessary while the Training Branch believed such efforts were needed. Paul Pierre, who chaired the group that developed the 40-hour CUSA curriculum, told the OIG that the "disconnect" between the model for which he designed the training and the actual circumstances under which temporary officers conducted adjudications occurred because too much autonomy was given to the Field and no one was directed to monitor the program. Pierre told the OIG that he asked to travel to Field offices to evaluate the program but was told that there was no budget for such an effort. As a result, according to Pierre, the program basically had no oversight. Vance Remillard, who was named INS' Director of Training shortly before the September 1995 meeting to design CUSA training, agreed that the training program should have had an implementation plan and "should have been done differently." Rosenberg, on the other hand, told the OIG that no evaluation of the training program was undertaken because the course materials were essentially those that permanent adjudications officers received at FLETC and also because CUSA was viewed as a temporary program.
In lieu of on-site evaluations, Pierre asked that questionnaires be distributed to the Field to evaluate the training program. That request resulted in a report by the Research and Evaluation Section of the Training and Development Branch in August 1996, one month before the end of the CUSA year. The report acknowledged that the perceived urgency to develop an abbreviated training program had resulted in a "collapsed development process that did not permit a formal needs analysis." The omission of this step, the Training Division concluded, "was a flaw of HQ planning."
Surveys were initially distributed on May 6, 1996, and because of a low response rate the return date was extended to July 12. Even with this extension, however, the survey yielded only 20 responses or a total survey return of 26.9 percent. According to the Research and Evaluation Section's report, a minimum return rate of 80 percent was considered necessary to have a high level of confidence in the survey results.
Nevertheless, the Training Branch reached several conclusions based on the limited information. Noting that the comments of training program graduates raised concerns about the brevity of the program, the lack of standardization, and the quality of the work product, the Training Branch concluded that "[t]here is a need for a thorough review of the training provided to personnel enrolled in the CUSA training program." By that time, however, it was August 1996, one month from the end of CUSA. No review was undertaken.113
In the absence of oversight from INS Headquarters, the Chicago District failed to implement even the limited CUSA training program for its temporary adjudicators. The truncated course offered in Chicago meant that the new officers there had even less training than new officers in other districts.114
We found that the Chicago District provided the full, 40-hour CUSA training session for only its first group of new adjudicators. Thereafter, according to the adjudications officer responsible for training new recruits, the training was limited to two or three days for one or two adjudicators at a time. By reducing the training time, Chicago was able to train new examiners as soon as they came on board and at the same time ensure that the trainer, who had other responsibilities, remained available for his collateral duties. The principal supervisory adjudications officer for the naturalization unit told the OIG that the individual attention the trainer could give to the one or two new officers compensated for the compressed teaching time.
The notion that a compressed period of individual training could substitute for the full classroom curriculum was not shared by everyone in Chicago.115 The Chicago representative at the September 1995 meeting at INS Headquarters during which the training was devised told the OIG that the 2- or 3-day training sessions were plainly insufficient.
It was not just the newly hired staff to whom INS Headquarters failed to provide adequate guidance before expecting them to carry out the CUSA mission. INS Headquarters also failed to provide all of its staff—veteran and inexperienced alike—with appropriate guidance concerning aspects of evaluating naturalization eligibility that already had been revealed to INS as misunderstood or inconsistently interpreted. In this regard, CUSA did not usher in a new way of doing business. Instead, many of the old ways of doing business continued unrepaired, despite the fact that these failures would be magnified by the more than one million naturalization adjudications INS would undertake during fiscal year 1996.
In the discussion that follows, we address INS' failure to provide guidance in three areas: evaluating an applicant's "good moral character," the English and Civics "testing" portion of the interview, and evaluating the applicant's immigration history and its relevance to the naturalization adjudication. We concentrate on these areas because many of the allegations about CUSA made to and by Members of Congress implicated these three aspects of naturalization adjudication. INS' failure to provide adequate guidance in each area tended to preclude adjudicators from finding additional grounds on which to disqualify applicants and thus contributed to making CUSA a naturalization program weighted in favor of approvals rather than denials.
As discussed at the outset of this chapter, by the 1990s the naturalization adjudication had devolved to a review of the applicant's N-400 at a face-to-face interview. However, neither the law nor INS training specifically dictated when or how far an adjudications officer should probe beyond the questions listed in the application.
INS Headquarters never provided specific guidance in this area. As a result, even before CUSA the boundaries of the naturalization interview were defined differently in different offices and by different supervisors, with some offices more circumspect than others about raising potentially disqualifying issues.116 As New York Naturalization Section Chief Rose Chapman advised the OIG, it was not unusual to find adjudicators using different standards and criteria for assessing "good moral character." Standards varied from office to office, and even from one officer to another within the same office. Chapman told the OIG that some officers examined only the applicants' arrest records to determine "good moral character," while others considered factors such as misrepresentations in the immigration visa application or failure to pay child support or to file income taxes. The director of Chicago's naturalization operation told the OIG that INS had long needed better guidelines to determine "good moral character." In her view, the many gray areas and the breadth of an adjudicator's unguided discretion were unfair to both the adjudicators and the public. The vagueness of the "good moral character" evaluation not only left the door open to many different interpretations, but also made the process vulnerable to manipulation—that is, applicants could be treated differently depending on who was adjudicating the case.
INS Headquarters officials were aware before CUSA of the inconsistencies that existed throughout the Service in the application of eligibility criteria. Although she was not addressing solely adjudication standards, Commissioner Meissner told the OIG that her reengineering efforts in 1995 were prompted by the fact that it was "legendary" within INS that offices around the country all had their own way of doing things. Among the aspects of naturalization adjudication recognized as needing standardization was the application of the "good moral character" evaluation. A law professor's review of the naturalization process commissioned by INS through the Administrative Conference of the United States in early 1995 noted that INS needed "a clearer understanding of what is required for good moral character." He recommended that INS promulgate clear guidelines on how to treat issues like receipt of welfare benefits and production of documentary evidence like tax returns.
Despite the need, INS Headquarters failed to issue guidance to help Field staff determine "good moral character" of naturalization applicants. As late as May 1996, with the publication of the Naturalization Process Changes memorandum (discussed in detail later in this chapter), INS Headquarters continued to cite the vagueness of "the criteria used to determine 'good moral character'" as one of the "procedural barriers" in the way of an improved naturalization process. At that time, the Office of Examinations promised "a policy memorandum defining 'good moral character' in clear terms" that would be published "in a check list form, so applicants and examiners [would] know the requirements." However, no such policy memorandum, checklist, or other guidance was published during fiscal year 1996.
As a result of INS Headquarters' inaction, the disparate adjudication practices taking place before CUSA continued unchecked during CUSA. As production pressure mounted and the emphasis on speed in interviewing increased, discretionary forays beyond the bounds of the specific N-400 questions generally were discouraged. In every Key City District, employees described an interview process that focused on the statutory minimum requirements for citizenship. Many adjudicators told us that they were instructed to explore only those crimes that precluded naturalization or that had been committed within the previous five years, and not to explore older criminal histories.117 Officers were discouraged from obtaining additional documents, like proof of payment of child support, to corroborate the applicants' statements. We found that during CUSA, most officers did not use the naturalization interview to determine whether an applicant was affirmatively eligible; rather, they used the interview only to ensure that the applicant was not ineligible.
It was to this discouragement of more wide-ranging inquiry that several INS employees testified during the 1996 congressional hearings into the CUSA program. Such discouragement was not in contravention of the letter of the law because the law itself did not specify the boundaries of an adjudicator's inquiry. This approach, however, contributed to many adjudicators' sense that inquiries they believed appropriate were being curtailed. Because these inquiries often were directed at exploring potential areas of disqualification, their discouragement by management contributed to officers' sense that INS' emphasis during CUSA on completing applications was tantamount to an incentive to approve.
Even after CUSA, INS Headquarters officials continued to note the need to clarify the "good moral character" standard but did little to address that need. In response to allegations made by witnesses from Chicago at the September 1996 hearings, INS Headquarters dispatched a "review team" that visited the Chicago District from October 1-3, 1996. The draft report of this review noted that "Chicago employees at the congressional oversight hearing expressed concern about how their district was interpreting regulatory requirements for Good Moral Character." However, the only recommendation the team made concerning these employees' concerns was to "agree that the employees' concerns are valid" and to further note that the "regulation that defines good moral character is vague." The report recommended that "HQ naturalization should review the GMC questions and should issue clear regulatory/policy interpretation. [sic]" The report was silent about the way in which CUSA time pressures contributed to the adjudicators' difficulties in assessing an applicant's "good moral character."
The review team correctly concluded that adjudicators at INS needed clear guidance about how to exercise their discretion in determining whether an applicant demonstrated "good moral character" as required by the Immigration and Nationality Act. What was missing from their review, however, was any acknowledgement that INS had recognized the need for such guidance well before launching the CUSA program and again with publication of the "Naturalization Process Changes" memorandum of May 1996. Similarly, the review team failed to acknowledge that by not issuing such guidance before launching the largest naturalization program in INS' history, INS had predictably exacerbated the problem.
Of the allegations made concerning CUSA's weakening of adjudicative standards, none was more frequently cited than the charge that INS had compromised the educational requirements for citizenship. From Chairman William Zeliff's letter of inquiry to Commissioner Meissner dated July 9, 1996, through an entire House Subcommittee hearing devoted to naturalization testing practices in September 1996, to Senate Subcommittee hearings in October 1996, Members of Congress repeatedly questioned INS' procedures for the testing of English-language proficiency and knowledge of Civics.118 For this reason, in the discussion that follows we address INS' testing procedures in considerable detail.
The central allegation boiled down to a claim that INS had watered down its language and government testing standards during CUSA. Because no concrete standards governing this aspect of naturalization adjudication existed before CUSA, it is impossible to determine that such a non-standard was "lowered" during fiscal year 1996. However, the lack of testing standards together with the absence of oversight of off-site testing entities during a year of high-volume, fast-paced processing inevitably made the weaknesses in INS' language and government testing program more obvious and more widespread. These weaknesses, in turn, along with the absence of guidance concerning other aspects of the naturalization adjudication, contributed to many officers' perception that the pressure they were under was, in fact, pressure to approve applications and not just to complete as many naturalization cases as possible.
As noted previously, applicants for naturalization had long been required to demonstrate "an understanding of the English language, including an ability to read, write, and speak words in ordinary usage," and "a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States." These statements embodied the "English" and "Civics" requirements of the naturalization adjudication.
The regulations governing the English literacy requirements before and during CUSA provided that an applicant's ability to speak and understand English was to be evaluated "from the applicant's answers to questions normally asked in the course of the examination."119 The applicant's reading and writing abilities were to be tested using "Service authorized Federal textbooks" written at the "elementary literacy level." Civics questions also were to be drawn from authorized textbooks.120 For this test, however, the regulations provided that "consideration" was to be given to "the applicant's education, background, age, length of residence in the United States," and other factors "relevant to an appraisal of the adequacy of the applicant's knowledge and understanding."
As discussed below, these seemingly objective criteria were, in practice, unevenly administered throughout INS well before implementation of CUSA. As Commissioner Meissner told the OIG, "the whole area of testing, whether it was done outside or inside of the agency, [had] been problematic for decades." Because INS had not trained its officers on how to test, the Commissioner said that INS had a "long litany of examples of arbitrary and untrained testing procedures on the part of the people in the agency, all the way from asking loaded political questions [of] applicants to simply not doing it in the same way."
(1) Testing practices at the interview
Unlike the evaluation of a naturalization applicant's "good moral character," the determination of an applicant's literacy was not, as described in the law, a test that should have depended to a large extent on an officer's discretion. However, because the determination of proficiency depended on a clear understanding of the standard involved and the ways in which that standard could be met, language testing also was vulnerable to disparate practices in the absence of objective criteria. Because INS failed to provide adjudicators with adequate guidance for either the standard or for gauging achievement of that standard, INS' literacy testing practices had been already recognized before CUSA as widely variable.
Federal regulations required the adjudications officer to use the applicant's ability to understand and respond to questions during the naturalization interview as an indication of the applicant's verbal English literacy. INS offered no other standard to assess an applicant's ability to speak and understand English except for this basic "ordinary English" guideline. DAOs often used the "elementary level" standard in the regulation concerning the applicant's reading and writing skills as the standard for spoken English as well, but that standard was not further defined.
Because the N-400 contained questions which could be difficult to understand by an applicant who understood only "ordinary English" or English at an "elementary level," the difficulty of this portion of the test would vary depending on the adjudicator's sense of the standard and his or her willingness to make the question understandable to the applicant.121 One adjudicator might strive to make the test even simpler than that required by law, while another might have an exaggerated idea of what constituted ordinary or elementary-level English.
In addition to speaking with the applicant at the interview in order to gauge his or her spoken English proficiency, DAOs generally asked the applicant to write one to three simple sentences to establish written English skill. Again, INS had no national standard for demonstrating written English competence and left this determination to the discretion of the examiner.122
INS was aware of the vulnerabilities of its English-language testing procedures. In fact, the desire to establish a more standardized approach had been part of INS' impetus for expanding the "outside testing" program that it had used during the Legalization program for naturalization. INS also had contracted with the Center for Applied Linguistics (CAL) in 1995 to develop a "draft description of the minimum passing performance on the oral English portion of the citizenship examination." CAL's November 1995 report confirmed that disparate standards existed throughout INS, noting that researchers "were very surprised at the disparity among INS offices and examiners" in testing language proficiency.123 They also found that "not one office or examiner . . . had the same philosophy as the next" and found that attitudes among officers "ran the gamut from: 'they're all cheats' to 'it's not my job to deny them.'" The report recommended not only the development of a standardized oral English test, but also improved training for adjudicators.
On the other hand, the regulations explicitly encouraged officers to exercise discretion in Civics testing after giving due consideration to the applicant's "education, background, age, length of residence in the United States" and the "opportunities and efforts made to acquire the requisite knowledge." Even considering this acknowledged discretion, however, INS recognized that in practice these tests inappropriately varied in difficulty depending on the examiner or on the office.
INS adjudicators drew Civics questions for naturalization applicants from a list of 100 questions that had been culled from the Federal Citizenship Textbook series by INS employees for testing applicants during the Legalization program of the 1980s. An adjustment to permanent residence status under the Legalization program required applicants to demonstrate that they either already met the English and Civics requirements that would be required for naturalization, or were pursuing a course of study to that end. These 100 questions ranged from those as simple as "what are the colors of the flag?" to the more difficult "who becomes President of the United States if the President and Vice-President should die?" One of the INS employees who chose the original questions told the OIG that the first 50 questions on the list were considerably less difficult than questions 51-100. This was not a purposeful attempt to offer different applicants questions of different levels of difficulty but rather reflected the fact that two different people compiled the questions.
While the regulations instructed officers to tailor the Civics test to the applicant's background, they did not dictate how many questions should be asked or what would be considered a "passing" score. When the list of 100 questions was distributed to INS field offices during legalization, however, Headquarters specified that "no more than 10" questions should be asked and a passing score should be "at least 60 percent." Thus, some officers believed that there was a specific passing percentage (although they disagreed as to whether it was 60 or 70 percent), while others believed that the regulations and INS policy gave them more latitude. This discrepancy was not clarified before CUSA.
(2) Outside testing of English and Civics before CUSA
Testing moved outside INS for the first time in response to the Immigration Reform and Control Act of 1986 (IRCA), which, as noted above, required applicants for permanent residence to pass an English literacy and a Civics test or show that they were pursuing a relevant course of study.
In 1991, INS decided to expand the use of outside testing entities to naturalization applicants and published a notice in the Federal Register requesting written proposals from entities interested in participating in a standardized testing program. Under the program, INS would accept test results from an approved entity as evidence of a naturalization applicant's ability to read and write English and his or her knowledge of the government and history of the United States. Before CUSA began, approximately ten percent of the English and Civics tests for naturalization applicants were conducted by outside testing entities.
INS authorized the two outside organizations originally involved in administering tests for adjustment of status applicants, Educational Testing Service (ETS) and Comprehensive Adult Student Assessment System (CASAS), to conduct naturalization testing beginning in 1991 and 1992. In 1994, INS authorized three additional organizations to administer the test: Southeast Community College, The Marich Associates, and the Naturalization Assistance Service (NAS). A sixth entity, American College Testing (ACT), was authorized by INS in October 1995. These national organizations, in turn, relied upon hundreds of local affiliates—often CBOs—to actually conduct the tests. INS placed a ceiling of $30 on the fee a company could charge for the test, but placed no limit on the amount that affiliates could charge applicants to prepare them for the test.
INS' original notice in the Federal Register had provided only cursory criteria for testing entities. For example, the Notice of Program provided that "the testing entity shall provide test security and test integrity subject to review and approval by the Service." Beyond this, the notice did not identify specific security requirements or standards for integrity. As an attorney in INS' Office of General Counsel noted in May 1996 in response to an Office of Programs proposal about INS' testing program, "except for verification of an alien's identity, the 1991 Notice of Program does not delineate the specific quality control factors which INS will focus on and presumably take action against the entities for failure to comply." As an INS policy paper on testing summarized in July 1996, INS contributed to the "many problems" in the testing program through an original program notice that "was poorly written, with only cursory criteria for testing entities, and without performance standards, criteria for local affiliates, program procedures, monitoring requirements, or proper procedures for suspending/terminating test centers and test entities."
In a similarly broad manner, the Notice provided that "the Service reserves, without notice, the right of onsite inspection to determine the continued reliability and integrity of the test and testing procedures," without specifying the nature of such oversight. However, we found that INS failed to develop any type of monitoring, inspection, or fraud prevention strategy or, for that matter, any effective oversight strategy. Finally, the Notice failed to provide for any method of revoking an entity's authority to conduct citizenship tests.
The absence of a clear program Notice was compounded by Headquarters' failure to fill in the blanks over time. Not only did districts not know what standards to apply to policing outside testing entities, but they also interpreted the absence of standards as an expression of Headquarters' lack of interest that, in turn, justified their own inaction.
Reports of improprieties in the outside testing program began to surface as early as 1992 and continued throughout CUSA. For example, a 1992 San Francisco internal memorandum noted that it "frequently seem[ed] to be the case" that letters from ETS indicating passing test scores raised serious questions by adjudicators because the applicants who presented the certificates could not answer any questions in English at all. Even early in the outside testing program reports of outside testing fraud included allegations that testing entities allowed applicants to cheat during tests, and that they issued passing certificates to people who did not even take the test.
In August 1993, in a memorandum acknowledging that proper oversight of outside testing entities "appear[ed] to be lacking," INS Headquarters established a requirement that Field offices compile a monthly "Citizenship Test Site Report." In April 1994, then-Acting Associate Commissioner Crocetti issued the memorandum stating that the Field was responsible for identifying and reporting suspected testing fraud to Headquarters and for taking corrective action. Crocetti instructed the field offices to submit a monthly "regional analysis, identifying any and all problems or potential problems as well as the corrective action taken." According to the memorandum, Headquarters Office of Adjudications would analyze the information and provide monthly feedback to the Field. Additionally, Crocetti noted, "…we recognize the need to develop an effective revocation process, and will be working on this in the near future."
Some districts interested in addressing issues of fraud explicitly asked Headquarters to provide more guidance. Los Angeles, in its August 1994 response to the Crocetti memorandum, advised INS Western Region officials that the District had identified questionable test results at some of the ETS sites. After District officials notified ETS about the problems, the ETS director recommended that ETS and INS establish a task force to develop procedures that would "…eliminate the recurrent problem of individuals appearing for an interview who are unable to communicate in appropriate English." The memorandum from Los Angeles officials requested additional guidance from Headquarters: "it is not clear from the referenced Headquarters memo [April 21, 1994] exactly what corrective actions are permissible…" and "clarification of the process is requested before further action is taken."
The Acting Western Regional Director advised Headquarters that he concurred with Los Angeles' assessment that "there [was] no guidance as to what steps are acceptable and proper to correct the situation as required in [Headquarters'] directive." He pointed out that the Crocetti memorandum incorrectly assumed that the Field was in a position to adequately monitor and correct deficiencies discovered at local test sites. He went on to state that the Field was stymied by Headquarters' lack of guidance. "[U]ntil Headquarters takes steps to advise the field of acceptable performance standards and establishes monitoring and revocation procedures for individual test locations, this assumption [that the Field can undertake corrective measures] is unreasonable." Los Angeles DADDA Neufeld later told the OIG that the issue of monitoring testing outside of INS was another example of Headquarters telling the Field to "do," without any guidance and without providing someone in a position of authority to answer questions.
Ten months later, in June 1995, a Dallas District employee reiterated the same concerns to Headquarters, "[I]t is incumbent upon the Service," wrote a supervisory District Adjudications Officer to the Office of Examinations at Headquarters, "to establish some type of regular monitoring procedures of these organizations. The public has the right to demand this of the Service in order to prevent exploitation of innocent naturalization applicants, and to preserve the integrity of the naturalization process." To do anything less, the Dallas supervisor added, "would be an insult to the millions of persons who have already been naturalized under far stricter procedures."
Local efforts at policing outside testing entities were frustrated not only by the lack of specific guidance but also by the lack of resources. Adjudicators in the San Francisco District made sporadic attempts to collect suspicious testing certificates. One DAO even conducted an on-site inspection that resulted in a recommendation to disqualify a test center after he observed test takers openly assisting one another. But no other site inspections were conducted in San Francisco before CUSA and we found no follow-up investigation of the testing site reported by the DAO. When asked by the OIG for an explanation, San Francisco managers stated that they did not have the resources to effectively monitor the outside testing program.
Headquarters' failure to respond to the Field's requests for guidance resulted in a perception that monitoring such sites was not a high priority for INS Headquarters.124 According to the senior adjudications officer assigned primary responsibility at Headquarters for testing issues from 1995 through CUSA, most Districts stopped reporting suspected fraud by testing organizations when they saw that Headquarters was doing nothing about it.
Thus, the record shows that well before CUSA began INS was aware that its language and government testing components of the naturalization interview were poorly and disparately administered. INS had not developed an objective standard or effective test for determining whether an applicant spoke English at the requisite minimum level. The integrity of the outside testing program had been questioned. INS recognized the need to improve in these areas as reflected in its 1996 Priority Implementation Plan that called for the development of both a standard and a test for spoken English, and a revised regulation to improve the administration of outside testing.
However, these new standards and improvements were not targeted for implementation in time to affect CUSA cases. In the meantime, adjudications officers continued to apply the same ambiguous standards, and increased production meant that many more cases would be affected. By the end of CUSA, as demonstrated by the testimony of EAC Aleinikoff on September 10, 1996, INS was still bemoaning the fact that "lack of standardization among INS offices [had], for some time, led to inconsistent standards" in the testing of English and Civics. However, INS had taken no meaningful steps to insulate CUSA adjudications from the adverse affects of the weaknesses it had identified before the program began.
The CUSA implementation plan identified development of "improved testing of English and civics" as "objective 2, task A." Headquarters officials assigned Acting Naturalization Branch Chief Pearl Chang as coordinator of this task. The implementation plan called for INS to develop a spoken English test, an improved Civics test, and an improved regulation governing standardized test administration. INS also hoped to improve training and consistency in testing by INS adjudicators.
However, inclusion of these tasks in the implementation plan did not mean that INS intended to delay the start of CUSA until the tasks had been completed. To the contrary, we found that INS did not intend to use the new tests at interviews or implement the new adjudicator training until September 30, 1996, the last day of the fiscal and CUSA year. INS did not plan to have a new regulation governing outside test administration in place until April 1996, by which time any applications INS intended to process during fiscal year 1996 already would have been filed and, presumably, most applicants intending to rely on standardized test administration already would have taken their English and Civics tests.125 INS was setting its sights on improving the naturalization testing process of the future, not the one that would be relied on during CUSA.
(2) Testing practices at the interview
Absent an objective standard for determining the minimum level of spoken English required of an applicant, DAOs relied on the general guidance that governed their determination before CUSA—whether the applicant spoke ordinary English, or English at an "elementary" or third-grade level. Application of this general guidance was a judgment call.
While exercising this judgment would no doubt prove challenging to an experienced adjudicator, the overwhelming majority of CUSA adjudicators were new, temporary officers with no experience and with inadequate training to inform their judgments about applicants' ability to speak English.126 Some temporary officers were creative in attempting to train themselves, like a Los Angeles officer who researched the language used in elementary school readers that she checked out of her local library in order to craft ques