The Immigration and Naturalization Service's Removal of Aliens Issued Final Orders

Report Number I-2003-004
February 2003

Each year, millions of aliens attempt to enter the United States without proper documentation, or enter legally but overstay or violate their visas. Many of these aliens subsequently leave - from FY 1996 through FY 2000, more than 7.8 million aliens departed voluntarily. However, many illegal aliens remain in the country who could be removed under United States immigration laws. According to the United States Census Bureau's 2000 data, there were more than 8 million illegal aliens living in the United States.

The INS serves a dual role in which it both enforces United States immigration laws and provides immigration benefits and services. Two major INS programs carry out the enforcement role. The border enforcement program is responsible for preventing unauthorized aliens from entering the country, while the interior enforcement program apprehends, processes, and removes illegal aliens from the United States.

The task of identifying and removing illegal aliens from the United States can involve other agencies. Aliens may be apprehended by officers in the INS's Investigations, Inspections, or Border Patrol offices; by staff of the Detention and Removal (D&R) office; or, they may be detained by state or local law enforcement officers. Other federal agencies that are frequently involved in identifying, apprehending, or detaining aliens include the Federal Bureau of Investigation (FBI), the United States Marshals Service (USMS), the Federal Bureau of Prisons (BOP), and the Department of Labor. Once illegal aliens are apprehended, it is the D&R's responsibility to process them through the system that determines whether they can stay or whether they will be removed. Appendix A contains a detailed illustration and discussion of this process. Over half (55 percent) of the 140,915 aliens who were issued final orders by the EOIR from October 1, 2000 through December 31, 2001 were detained (see Chart 1).

The INS works with the EOIR to conduct the hearing process for determining whether aliens should be removed. The INS charges aliens with removal from the United States and begins proceedings by filing a charging document with the EOIR. The EOIR, a component of the Department of Justice that is separate and apart from the INS, is comprised of the Office of the Chief Immigration Judge, the Board of Immigration Appeals (BIA), and the Office of the Chief Administrative Hearing Officer. The EOIR is responsible for adjudicating immigration cases at both the trial level, before Immigration Judges and the appellate level, before the BIA. The United States federal courts have jurisdiction over certain decisions appealed from the BIA.

Source: OIG analysis of EOIR data.

Historical Trend of INS Removals

Over the last 5 years, the INS formally removed an average of 97,338 aliens per year (Table 1).

Table 1 INS Removals FY 1997 Through FY 2001
Fiscal Year	Removeda
1997	91,190
1998	97,068
1999	91,485
2000	99,691
2001	107,254
Total	486,688

Source: 2001 Statistical Yearbook of INS, p. 235. a Includes removals executed through orders of deportation, exclusion, and removal. Excludes expedited removals as well as confirmed voluntary departures.

However, many aliens ordered to leave do not comply with their removal orders. As of June 2002, the INS estimated that there were about 355,000 aliens with unexecuted removal orders.¹⁷

1996 OIG Evaluation Reported the INS Was Ineffective at Removing Nondetained Aliens

In March 1996, the OIG reported a large disparity between the removal rates of detained aliens compared to nondetained aliens with final removal orders. Through a review of 1,058 sample case files, we found that 94 percent of detained aliens, but only 11 percent of nondetained aliens, had left or been removed from the United States.

Due to the disparity between the number of detained and nondetained aliens removed, we made five recommendations to the INS to improve its processing of nondetained aliens, including:

1. Move more quickly to present surrender notices to aliens after receiving final orders.

2. Deliver surrender notices instead of mailing them to aliens.

3. Take aliens into custody at the hearings when final orders are issued.

4. Pursue aliens who fail to appear and review procedures for closing cases for aliens who fail to appear.

5. Coordinate with other governmental agencies to make use of all available databases to track aliens who fail to appear.

The INS concurred with recommendations 1 and 5, and partially concurred with recommendations 2, 3, and 4. The INS proposed alternative actions to meet the intent of recommendations 2, 3, and 4, which we accepted. Between March 1997 and October 2000, the INS reported to the OIG that it had taken the actions it proposed for four of the recommendations. Consequently, we closed recommendations 1, 3, 4, and 5. As of January 2003, the INS had not provided final information on action related to recommendation 2, and that recommendation remains open. For this review, we assessed the INS's implementation of each of the corrective actions (see Appendix B for the detailed results of our assessment).

Changes in Immigration Law and Enforcement Since 1996

Since our 1996 review, a number of important events have affected how the INS apprehends and removes illegal aliens. These include a major revision of U.S. immigration laws by Congress in September 1996, a new INS interior enforcement strategy, a Supreme Court ruling that affects the INS's ability to detain aliens pending their removal, and several INS removal initiatives. Most recently, on November 25, 2002, the President signed into law the Homeland Security Act, which directs that the INS and its functions be moved from the Department of Justice into a new Department of Homeland Security (DHS) in March 2003. Each of these events is discussed briefly below:

• The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The IIRIRA amended and reformed the Immigration and Naturalization Act of 1952 (P. L. 82-414) and other existing immigration laws, including making a significant change to deportation and exclusion procedures. Prior to 1996, aliens arriving at ports of entry with improper or fraudulent documents were often allowed to enter the United States while awaiting court proceedings to determine their admissibility. Those aliens not held in custody frequently absconded and remained in the United States. IIRIRA allowed the INS to refuse entry to aliens without processing them through the immigration courts under a new authority termed "expedited removal." There were 69,730 expedited removals in FY 2001. IIRIRA also increased detention requirements for certain categories of aliens, such as those that engaged in terrorist, criminal, drug trafficking, or immoral activities.

• Interior Enforcement Strategy. In 1999, the INS adopted a new Interior Enforcement Strategy, which established new priorities for the interior enforcement program to identify and remove criminal aliens; attack alien smuggling operations; respond to community complaints about illegal immigration; reduce benefit and document fraud; and make it more difficult for employers to hire illegal aliens. These priorities were based on the potential harm to the nation from the target group or activity; the cost; and the potential for the strategy to be effective, such as reducing the size of the problem, providing a deterrence, or benefiting communities.

• Zadvydas v. Davis, 121 U.S. 2491 (2001). In June 2001, the U.S. Supreme Court ruled that the INS may detain aliens under final removal orders only for a period reasonably necessary to carry out their removal. The Court found that detention for up to six months after issuance of the final order was presumptively reasonable. After six months, aliens can request to be released by demonstrating that it is unlikely that they will be removed in the foreseeable future. Unless the INS can refute the alien's claim by demonstrating that removal is pending, show that the alien contributed to the delays, or identify other reasons that bar release (such as suspected terrorist activities or danger to the community), the alien must be released.

  Before releasing these aliens, the INS reviews the cases to identify those in which travel documents may be available, removal practicable and in the public interest, and those in which aliens may be violent, pose a risk to the community, or pose a risk for violating their release conditions or fleeing. From January 2001 through September 2002, the INS reviewed 1,710 cases and released 1,034 (60 percent) of the aliens.

• Fugitive Operations Teams. On October 26, 2001, the President signed the USA PATRIOT Act.¹⁸ Among its provisions, the USA PATRIOT Act authorized funding and positions to law enforcement agencies involved in combating terrorism. The INS subsequently received $5.3 million to apprehend, process, and remove fugitive aliens with final removal orders. In March 2002, the INS distributed the resources and instructed the Districts to proceed expeditiously in hiring and activating their teams.¹⁹ According to the INS, the teams will apprehend fugitive aliens from countries to which they can be removed quickly. As of January 2003, the INS had announced the positions and was in the process of hiring staff for the teams.

• Absconder Apprehension Initiative (AAI). On January 25, 2002, the Deputy Attorney General directed the INS, FBI, USMS, and the United States Attorneys' Offices to implement the AAI to target for removal the more than 300,000 absconders in the United States. The FBI and USMS were directed to assist the INS with apprehensions while the United States Attorneys, at the INS's request, would prosecute absconder cases. Under the AAI, backlogged cases are reviewed and those containing sufficient biographical information are entered into the National Crime Information Center (NCIC).²⁰ As of December 2002, the INS reported that the AAI program had resulted in 2,070 apprehensions and 522 removals. The AAI initially focused on absconders from countries with an active al Qaeda presence, followed by absconders with criminal records, and finally on non-criminal cases and cases of unverified voluntary departure.

• Department of Homeland Security (DHS). On November 25, 2002, President Bush signed into law the Homeland Security Act of 2002. This law restructures the Executive branch of the Federal government by combining the functions of several agencies to better meet the threat posed by terrorism. The INS is among the agencies that will be transferred into the DHS on March 1, 2003. Once the INS is transferred, the immigration benefits and immigration law enforcement functions will be separated into the Bureau of Citizenship and Immigration Services, and the Bureau of Border Security.

17. The INS Office of Policy and Planning, November 15, 2002.

18. P.L. 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorists (USA PATRIOT Act).

19. Memorandum from Anthony Tangeman, Deputy Associate Commissioner, INS Office of Detention and Removal, to Regional Directors, March 8, 2002.

20. The NCIC is a computerized index of criminal justice information (including, criminal record history information, fugitives, stolen properties, and missing persons) maintained by the FBI, which is available to Federal, state, and local law enforcement and other criminal justice agencies 24 hours a day, 365 days a year.