Immigration Enforcement:

ICE Could Improve Controls to Help Guide Alien Removal Decision Making

GAO-08-67: Published: Oct 15, 2007. Publicly Released: Oct 15, 2007.

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Officers with U.S. Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS) investigate violations of immigration laws and identify aliens who are removable from the United States. ICE officers exercise discretion to achieve its operational goals of removing any aliens subject to removal while prioritizing those who pose a threat to national security or public safety and safeguarding aliens' rights in the removal process. The General Accountability Office (GAO) was asked to examine how ICE ensures that discretion is used in the most fair, reasoned, and efficient manner possible. GAO reviewed (1) when and how ICE officers and attorneys exercise discretion and what internal controls ICE has designed to (2) guide decision making and (3) oversee and monitor officers' decisions. To conduct this work, GAO reviewed ICE manuals, memorandums, and removal data, interviewed ICE officials, and visited 21 of 75 ICE field offices.

ICE officers exercise discretion throughout the alien apprehension and removal process, but primarily during the initial phases of the process when deciding to initiate removals, apprehend aliens, issue removal documents, and detain aliens. Officers GAO interviewed at ICE field offices said that ICE policies and procedures limit their discretion when encountering the targets of their investigations--typically criminal or fugitive aliens, but that they can exercise more discretion for other aliens they encounter. Officers also said that they consider humanitarian circumstances, such as sole caregiver responsibilities or medical reasons, when making these decisions. Attorneys, who generally enter later in the process, and officers told GAO that once removal proceedings have begun, discretion is limited to specific circumstances, such as if the alien is awaiting approval of lawful permanent resident status. Consistent with internal control standards, ICE has begun to update and enhance training curricula to better support officer decision making. However, ICE has not taken steps to ensure that written guidance designed to promote the appropriate exercise of discretion during alien apprehension and removal is comprehensive and up to date and has not established time frames for updating guidance. For example, field operational manuals have not been updated to provide information about the appropriate exercise of discretion in light of a recent expansion of ICE worksite enforcement and fugitive operations, in which officers are more likely to encounter aliens with humanitarian issues or who are not targets of investigations. Also, ICE does not have a mechanism to ensure the timely dissemination of legal developments to help ensure that officers make decisions in line with the most recent interpretations of immigration law. As a result, ICE officers are at risk of taking actions that do not support operational objectives and making removal decisions that do not reflect the most recent legal developments. Consistent with internal control standards, ICE relies on supervisory reviews to ensure that officers exercise appropriate discretion and has instituted an inspection program designed to ensure that field offices comply with established policies and procedures. However, ICE lacks other controls to help monitor performance across the 75 field offices responsible for making apprehension and removal decisions. A comprehensive mechanism for reviewing officers' decision making could provide ICE with meaningful information to analyze trends to identify areas that may need corrective action and to identify best practices. ICE officials acknowledged they do not collect the data necessary for such a mechanism and said doing so may be costly. Without assessing costs and alternatives, ICE is not in a position to select an approach that will help identify best practices and areas needing corrective action.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: We found that U.S. Immigration and Customs Enforcement (ICE) did not provide officers with updated policies, guidance, and procedures for alien apprehension and removals, including factors that officers should consider when apprehending, charging, and detaining aliens with humanitarian issues. By providing such updates, ICE would better enable officers to exercise discretion for aliens with humanitarian issues. We recommended that the Assistant Secretary of ICE develop time frames for updating existing policies, guidelines, and procedures for exercising discretion and include in the updates factors that should be considered when officers make apprehension, charging, and detention determinations for aliens with humanitarian issues. In fiscal year 2009 and fiscal year 2010, ICE issued three memorandums that provide guidance on humanitarian issues and outline enforcement priorities for apprehending, detaining, and removal of aliens based on, among other things, national security or public safety risks. For example, one memorandum states that, absent extraordinary circumstances or mandatory detention requirements, field office directors should not detain aliens known to be suffering from physical or mental illness; who are disabled, elderly, pregnant, or nursing; or, aliens who demonstrate that they are primary caretakers of children or an infirm person. The memorandum also requires ICE officers and agents to obtain approval from field office directors when detaining such aliens. In issuing these memorandums, ICE demonstrated that officers are being provided updated information to inform officers' use of discretion in alien apprehensions and removals. These memorandums are consistent with our recommendation.

    Recommendation: To enhance ICE's ability to inform and monitor its officers' use of discretion in alien apprehensions and removals, the Secretary of Homeland Security should direct the Assistant Secretary of ICE to develop time frames for updating existing policies, guidelines, and procedures for alien apprehension and removals and include in the updates factors that should be considered when officers make apprehension, charging, and detention determinations for aliens with humanitarian issues.

    Agency Affected: Department of Homeland Security

  2. Status: Closed - Implemented

    Comments: In fiscal year 2008, we found that United States Immigration and Custom Enforcement (ICE) did not provide officers who were responsible for apprehending, charging, and detaining removable aliens at ICE field offices with comprehensive guidance and consistent legal updates that could help inform their decisions. ICE, by providing officers with this information, would better enable its officers to make correct removal disposition decisions and better ensure that removal cases are not incorrectly terminated. In August 2008, ICE officials reported that they took two actions in response to our recommendation. First, ICE implemented new internal training programs and created a new position within ICE's legal department that is responsible for coordinating training in field offices and with other local ICE operational components. Second, ICE developed and produced an online document providing officers with monthly legal updates. This document is posted on the ICE intranet and employees are notified when it is updated. As a result, ICE demonstrated that officers are being provided regular opportunities to learn about changes in law and policy that can impact alien apprehension and removal decisions.

    Recommendation: To enhance ICE's ability to inform and monitor its officers' use of discretion in alien apprehensions and removals, the Secretary of Homeland Security should direct the Assistant Secretary of ICE to develop a mechanism to help ensure that officers are consistently provided with updates regarding legal developments necessary for making alien apprehension and removal decisions.

    Agency Affected: Department of Homeland Security

  3. Status: Closed - Implemented

    Comments: In fiscal year 2008, we reviewed and reported on how U.S. Immigration and Customs Enforcement (ICE) ensures that officer discretion is used in the most fair, reasoned, and efficient manner possible to (1) achieve its operational goals of removing aliens subject to removal that pose a threat to national security and public safety and (2) safeguard aliens' rights in the removal process. We found that ICE had two control mechanisms in place to monitor its removal operations--supervisory review practices and procedures and an inspection program--but lacked a means to analyze information specific to the exercise of discretion across field offices. In 2008, ICE officials indicated that no actions had been taken to address this recommendation. However, they said that ICE's recent elimination of its operating system and its implementation of the ENFORCE database system would likely provide some of the capabilities to support a variety of types of analyses that could help inform managers' decisions. Further, they were currently evaluating the options available to them that would enable them to develop a reporting mechanism that would give managers the ability to conduct trend analysis in support of management actions. Nonetheless, ICE officials said that they hoped to address this recommendation by December 2008. In September 2011, ICE determined that it is not feasible to develop a reporting mechanism by which ICE senior managers can analyze trends in the use of discretion. According to ICE, discretion occurs at many different decision points throughout the immigration enforcement process and there is no feasible way for the agency to adequately track the outcomes of each decision point. ICE further stated that while it is not feasible to develop a reporting mechanism, the agency has issued revised guidance on prosecutorial discretion to better reflect ICE civil immigration enforcement priorities and ensure consistency throughout the field in its use and implementation. ICE's action to evaluate the costs and alternatives of developing a mechanism by which to analyze information specific to the exercise of discretion is consistent with our recommendation and this recommendation is closed as implemented.

    Recommendation: To enhance ICE's ability to inform and monitor its officers' use of discretion in alien apprehensions and removals, the Secretary of Homeland Security should direct the Assistant Secretary of ICE to evaluate the costs and alternatives of developing a reporting mechanism by which ICE senior managers can analyze trends in the use of discretion to help identify areas that may require management actions--such as changes to guidance, procedures, and training.

    Agency Affected: Department of Homeland Security

 

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