[GAO-02-220T ] Illegal Aliens: INS's Processes for Denying Aliens Entry Into the United States

[in...@www.gao.gov]

Illegal Aliens: INS's Processes for Denying Aliens Entry Into the
United States (13-NOV-01, GAO-02-220T).

This testimony discusses the Immigration and Naturalization
Service's (INS) processes for denying aliens entry at land and
airports of entry, including the expedited removal and credible
fear processes. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 included a provision, expedited
removal, for dealing with aliens who attempt to enter the United
States by engaging in fraud or misrepresentation (e.g. falsely
claiming to be a U.S. citizen or misrepresenting a material fact)
or who arrive with fraudulent, improper, or no documents (e.g.
visa or passport). The expedited removal provision reduces an
alien's right to seek review of a determination of
inadmissibility decision. The 1996 Act also allows expedited
removal orders to be issued to aliens who have entered the United
States without being inspected or paroled at a port of entry. INS
and immigration judges implement the provisions of the 1996 Act
relating to the expedited removal of aliens.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-02-220T
ACCNO: A02458
TITLE: Illegal Aliens: INS's Processes for Denying Aliens Entry
Into the United States
DATE: 11/13/2001
SUBJECT: Aliens
Deportation
Detention facilities
Federal legislation
Illegal aliens
Law enforcement

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GAO-02-220T

Testimony Before the Permanent Subcommittee on Investigations, Committee on
Governmental Affairs, U. S. Senate

United States General Accounting Office

GAO For Release on Delivery Expected at 9: 30 a. m., EST Tuesday, November
13, 2001

ILLEGAL ALIENS INS' Processes for Denying Aliens Entry Into the United
States

Statement of Richard M. Stana Director, Justice Issues

GAO- 02- 220T

Page 1 GAO- 02- 220T

Mr. Chairman and Members of the Subcommittee: I am pleased to be here today
to discuss Immigration and Naturalization Service?s (INS) processes for
handling aliens who attempt to enter the county illegally. The tragic events
of September 11, 2001, under score the importance of effectively controlling
the legal and illegal entry of aliens into the United States.

Aliens enter the United States legally or illegally. Generally, legal entry
requires aliens to first obtain visas at a U. S. consulate and appropriate
travel documents, such as passports, from their own country. 1 They then
present themselves for INS inspection at a U. S. port of entry. Aliens may
enter legally as ?immigrants? or ?nonimmigrants.? Immigrants enter for
purposes of becoming lawful permanent residents. In addition, refugees and
immediate relatives- spouses, parents, and children of U. S. citizens- can
also be admitted. Nonimmigrants are admitted for a specified period of time
for a specific purpose, such as tourism, business, or schooling. Under
certain conditions, nonimmigrants in the United States may apply to INS to
have their status changed to that of immigrant.

Aliens enter illegally by evading INS inspections. They might enter at a
port of entry and present fraudulent documents or cross the U. S. border
between ports of entry.

My testimony today draws on our prior reports and focuses mainly on INS?
processes for denying aliens entry at land and airports of entry, including
the expedited removal and credible fear processes. 2

1 Citizens of some countries are part of the visa waiver program (e. g.,
England) and do not have to obtain a visa. 2 Illegal Aliens: Changes in the
Process of Denying Aliens Entry Into the United States

(GAO/ GGD- 98- 81, Mar. 31, 1998) and Illegal Aliens: Opportunities Exist to
Improve the Expedited Removal Process, (GAO/ GGD- 00- 176, Sep. 1, 2000).

Page 2 GAO- 02- 220T

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the
1996 Act), which amended the Immigration and Nationality Act (INA), 3 as
amended, was enacted September 30, 1996 (P. L. 104- 208). Among other
things, the 1996 Act included a new provision, which is called expedited
removal, for dealing with aliens who attempt to enter the United States by
engaging in fraud or misrepresentation (e. g., falsely claiming to be a U.
S. citizen or misrepresenting a material fact) or who arrive with
fraudulent, improper, or no documents (e. g., visa or passport). The
expedited removal provision, which went into effect on April 1, 1997,
reduces an alien?s right to seek review of a determination of
inadmissibility decision.

In the years preceding the passage of the 1996 Act, concerns were raised
about the difficulty of preventing illegal aliens from entering the United
States and the difficulty of identifying and removing the illegal aliens
once they entered this country. The expedited removal process was designed
to prevent aliens who attempt to enter the United States by engaging in
fraud or misrepresentation or who arrive without proper documents from
entering this country at our ports of entry.

The 1996 Act also allows expedited removal orders to be issued to aliens who
have entered the United States without being inspected or paroled at a port
of entry. 4 INS determined that it would not apply the expedited removal
process to aliens who attempted to enter the United States between ports of
entry or without inspection or parole. 5

INS and immigration judges have roles in implementing the provisions of the
1996 Act relating to the expedited removal of aliens. INS? responsibilities
include (1) inspecting aliens to determine their admissibility and (2)
reviewing the basis and credibility of aliens who are subject to expedited
removal but who claim a fear of persecution if returned to their home
country or country of last residence. 6 Aliens can

3 8 U. S. C. 1101, et seq. 4 The 1996 Act only permits INS to issue
expedited removal orders against aliens who have been in the United States
for less than 2 years. 5 Parole is a procedure used to temporarily admit an
inadmissible alien into the United States, for emergency reasons or when in
the public interest. 6 For this testimony, we use the term ?home country? in
referring to the aliens? home country or their country of last residence.
Changes in the

Process of Denying Aliens Entry Into the United States

Page 3 GAO- 02- 220T

request that immigration judges review INS? negative credible fear
determinations. Immigration judges, who report to the Chief Immigration
Judge, are in the Executive Office for Immigration Review (EOIR), within the
Department of Justice. The immigration judges are located in immigration
courts throughout the country.

Before the 1996 Act, aliens who wanted to be admitted to the United States
at a port of entry were required to establish admissibility to an inspector.
This requirement remains applicable under the 1996 Act. Generally, aliens
provide inspectors with documents that show they are authorized to enter
this country. At this primary inspection, the INS inspector either permits
the aliens to enter or sends the aliens for a more detailed review of their
documents or further questioning by another INS inspector. The more detailed
review is called secondary inspection. In deciding whether to admit the
alien, the INS inspector is to review the alien?s documents for accuracy and
validity and check INS? and other agencies? databases for any information
that could affect the alien?s admissibility. After reviewing the alien?s
documents and interviewing the alien at the secondary inspection, the
inspector may either admit or deny admission to the alien or take other
discretionary action. INS can prohibit aliens from entering the United
States for a number of reasons (e. g., criminal activity or failing to have
a valid visa, passport, or other required documents). Inspectors have
discretion to permit aliens to (1) enter the United States under limited
circumstances even though they do not meet the requirements for entry or (2)
withdraw their applications for admission and depart.

Before the April 1, 1997, enactment of the expedited removal process, the
INA authorized the Attorney General to exclude certain aliens from admission
into the United States. Aliens whom inspectors determined to be excludable
from this country generally were allowed either to (1) return voluntarily to
the country from which they came or (2) appear for an exclusion hearing
before an immigration judge. During this hearing, aliens who said they had a
fear of persecution if they were returned to their home country could file
an application for asylum. The immigration judges? decisions could be
appealed to EOIR?s Board of Immigration Appeals, which is a quasijudicial
body that hears appeals of INS? and immigration judges? decisions.
Furthermore, the alien could appeal Board?s decision through the federal
court system. The scope of the federal court?s review was limited to whether
the government followed established procedures. Aliens who were excluded
from entering the United States under this process generally were barred
from reentering this country for 1 year. Exclusion Process Before

Implementation of the 1996 Act

Page 4 GAO- 02- 220T

Under the 1996 Act, an INS inspector, instead of an immigration judge, can
issue an expedited removal order to aliens who (1) are denied admission to
the United States because they engage in fraud or misrepresentation or
arrive without proper documents when attempting to enter this country and
(2) do not express a fear of returning to their home country. INS is to
remove the alien from this country. 7 Aliens who are issued an expedited
removal order generally are barred from reentering this country for 5 years.

The expedited removal provision also established a new process for aliens
who express a fear of being returned to their home country and who are
subject to expedited removal. Inspectors are to refer such aliens to INS
asylum officers for an interview to determine whether the aliens have a
credible fear of persecution or harm if returned to their home country. This
is called a credible fear interview. The term ?credible fear of persecution?
is defined by statute as ?a significant possibility, taking into account the
credibility of the statements made by the alien in support of the alien?s
claim and such other facts as are known to the officer, that the alien could
establish eligibility for asylum under Section 208? of the INA.

Generally, the 1996 Act requires INS to detain aliens who are subject to
expedited removal and who express a fear of persecution or torture until
they are removed from the country or permitted to remain in the country. 8
These aliens are initially detained at the port of entry during the
inspection process and then transported to a detention facility to await an
interview by an asylum officer, unless release 9 is required to meet a
medical emergency or legitimate law enforcement objectives. If an asylum
officer determines that the alien has a credible fear of persecution or
torture,

7 There are other reasons why INS may find an alien inadmissible (e. g.,
criminal activity). However, expedited removal orders can only be issued to
aliens whom INS finds inadmissible because the aliens attempted to enter the
United States by engaging in fraud or misrepresentation or arrived without
proper documents at the U. S. ports of entry. If INS includes any other
charge against an alien, the alien cannot be processed under expedited
removal procedures. INS is not required to charge an alien with all of the
grounds under which it finds the alien inadmissible. With its new authority
under the 1996 Act to issue expedited removal orders, INS? guidance to its
inspectors states that, generally, if aliens are inadmissible because they
attempted to enter the United States by engaging in fraud or
misrepresentation or arrived without proper documents, additional charges
should not be brought, and the alien should be placed in the expedited
removal process.

8 Generally, aliens who are subject to expedited removal and do not express
a fear of persecution or torture are to be detained until they are removed
from the country. 9 This is parole of aliens into the country either on bond
or on their own recognizance. Expedited Removal

Process After the Implementation of the 1996 Act

Page 5 GAO- 02- 220T

detention is no longer mandatory. The INS district director, chief patrol
agent, or officer in charge has the discretion to release such aliens for
whom an asylum officer determined that a credible fear existed, provided
there is a determination by an INS district officer the alien is likely to
appear for the removal hearing and does not pose a risk to the community.

In our September 2000 report, we stated that our review of documentation in
the case files of aliens who had been processed for expedited removal
indicated that INS inspectors were complying with the requirements of the
expedited removal process in almost all cases at Los Angeles, John
Fitzgerald Kennedy, and Miami airports and the San Ysidro port of entry.
These requirements include the inspectors? taking aliens? sworn statements
and asking aliens if they had a fear of returning to their home country,
supervisory oversight, and having the aliens sign their sworn statements. We
identified some cases where the supervisors did not sign removal orders, but
documentation indicated that supervisors? concurrence was obtained by
telephone, which is consistent with INS policy.

In addition, we reported that our review of internal controls at INS? Los
Angeles, Miami, and New York Asylum Offices revealed that asylum officers
generally complied with requirements, including documenting that mandatory
paragraphs were read to the aliens during the interview process and that
documentation in the aliens? files indicated that supervisors? review took
place. We also found that the asylum officers we surveyed were satisfied
with the required training INS provided. Finally, our review showed that the
headquarters quality assurance team responsible for reviewing all negative
(as well as some positive) determinations was performing these reviews and
providing feedback to the asylum offices on their results.

INS has the discretion to release from detention aliens for whom an asylum
officer determined that a credible fear existed. Its policy favors releasing
such aliens provided it determines the aliens are likely to appear for the
removal hearing and do not pose a risk to the community. In our September
2000 report, we pointed out that in response to our survey, 29 of 33 INS
district offices reported that in fiscal year 1999, an estimated 78 percent
of such aliens were released to await their hearing before an immigration
judge, although some differences existed in district office detention
practices. INS is issuing guidance that would promote more consistent
decisions about releasing aliens among district offices. INS Was Generally
in

Compliance With the Requirements of the 1996 Act

INS Released Many Aliens, and Many of Them Did Not Appear for Their Hearing

Page 6 GAO- 02- 220T

Once an asylum officer determines that aliens have a credible fear of
persecution or torture, INS? October 1998 Detention Use Policy favors
releasing of such aliens after the district director or certain other INS
officials determine that the aliens will likely appear for their removal
hearing and will not pose a danger to the community. INS district offices
reported to us that in fiscal year 1999, 3,432 (or 78 percent) such aliens
were released. In responding to our survey, nearly all district offices told
us that they considered the alien?s criminal history and/ or community ties
as important factors in making the decision to release or detain the alien.
Officials said that INS plans to clarify that headquarters and regional
managers have authority to make detention decisions.

INS? October 1998 national detention policy and priority system has four
categories of aliens for the purpose of making detention decisions.

Category 1 includes aliens who are for the most part required to be
detained (e. g., aliens chargeable as terrorists or aliens convicted of
aggravated felonies).

Category 2 includes aliens who are removable because of national concerns
or having engaged in alien smuggling.

Category 3 includes aliens whom INS apprehended at a work site and had
committed fraud in obtaining employment.

Category 4 includes aliens in cases when asylum officers determined that
they had a credible fear of persecution or torture and as a result were
referred to immigration judges for full removal proceedings.

Under INS? detention policy, the categories are sequentially prioritized (i.
e., aliens in category 2 generally should be detained before aliens in
category 3). INS requires aliens who express a fear of persecution or
torture to an INS inspector at a port of entry to be detained unless release
is required to meet a medical emergency or legitimate law enforcement
objectives, such as serving as a witness. If an asylum officer determines
that the alien has a credible fear of persecution or torture, the alien is
to be placed in removal proceedings before an immigration judge where he or
she may present a claim for asylum. At this point, the alien is placed in
category 4 and can be released at the discretion of the district director or
certain other INS officials.

Under this priority system, these INS officials have discretion in their
implementation of the detention policy. INS requires the reasons for the
detention decision to be clearly documented in writing and placed in the
alien?s file if a custody determination is not in keeping with its policy.
INS? policy favors releasing aliens in cases when an asylum officer
determined INS? Policy Favors

Releasing Credible Fear Aliens Provided They Meet Certain Conditions

Page 7 GAO- 02- 220T

those aliens to have a credible fear of persecution or torture, provided
that the aliens do not pose a risk of flight or danger to the community.

Guidance for making a release decision is found in regulations. 10 In part,
the regulations state that the district director may require reasonable
assurances that the alien will appear at all hearings. They also state that
the aliens do not have to meet all the factors listed in the regulations to
be released. The factors to ensure appearance include the alien posting a
bond, having community ties, or having to meet such conditions as
periodically reporting to INS their whereabouts. The guidance concludes by
stating that the district director should apply reasonable discretion in
making detention decisions.

In responding to our survey, district offices identified several factors
that they considered in making release or detention decisions regarding
aliens in cases when an asylum officer determined those aliens to have a
credible fear of persecution or torture. They are required to determine if
the aliens are likely to appear for their removal hearings before an
immigration judge and are not a danger to the community. However, one
district office reported only considering the aliens? family ties or
sponsorship, whereas officials at another district office said that they
considered eight different factors in making the decision to release or
detain.

While indicating compliance with INS? detention guidance, 28 district
offices in our survey reported other factors they considered when making
release or detention decisions. These factors included community ties, such
as evidence of family or friends in the United States or sponsorship of
religious or charitable groups, and criminal history check against law
enforcement databases. One district office reported that since asylum
officers were determining that aliens had a credible fear of persecution or
torture 99 percent of the time, it did not consider the asylum officers?
findings to be a viable prescreening process or useful in making detention
decisions. A port director made a similar comment. Another district
responded that they deferred to the determination made by the asylum officer
(i. e., the district office released the alien if the asylum officer
determined that the alien had a credible fear of persecution or torture).

10 8 C. F. R. 212.5.

Page 8 GAO- 02- 220T

In those cases when an asylum officer determines that an alien has a
credible fear of persecution or torture and the alien is released from INS
custody, the alien is required to appear at removal hearings before an
immigration judge. At the removal hearings, aliens are to present their
claims for asylum, and the immigration judge is to rule on the merits of the
claim. Those aliens whose claims are denied are to be removed from the
country and returned to their home country. In using a joint INS and EOIR
database, we found that 7, 947 aliens were found to have a credible fear of
persecution or torture between April 1, 1997, and September 30, 1999. As of
February 22, 2000, of the 7,947 aliens, 5,320 aliens were released from INS
custody. Of these 5, 320 aliens, 2,351 aliens received an immigration
judge?s decision. Of the 2,351 aliens, 1,000 aliens (or 42 percent) did not
appear for their removal hearing before an immigration judge. In all 1,000
cases in which the alien did not appear for their removal hearing,
immigration judges ordered them removed from this country in absentia.

It should be noted that many of the 5,320 cases involved aliens who had
appeared for their initial removal hearing and were scheduled for subsequent
hearings to determine if they should be granted relief from removal (e. g.,
granted asylum). EOIR officials told us that as more of these cases are
completed over time, a greater percentage of aliens will appear for their
hearing, which will result in a lower in absentia rate. They estimated that
when all the cases are completed, the failure- to- appear rate would fall
from 42 percent to as low as 25 percent.

In those cases when an asylum officer determined an alien to have a credible
fear of persecution or torture and the alien was subsequently released, the
alien can ask an immigration judge for a change in removal hearing location.
According to an EOIR official, immigration judges? decisions to grant
aliens? requests for a change in the hearing location are done on a case-
by- case basis. Further, according to the Chief Immigration Judge, before a
change of location may be granted, an address where the alien will reside
must be provided to the immigration judge.

We reported in September 2000 that many aliens who requested a change in
removal hearing location failed to appear at their hearing. Our analysis of
the INS and EOIR data from April 1, 1997, through fiscal year 1999 showed
that 3,695 of the 5,320 aliens who were released received a change of
location for their removal hearing. Of those 3,695 aliens, 1,467 aliens had
a decision made by an immigration judge. Of the 1, 467 aliens, 557 aliens
(or 38 percent) were ordered removed in absentia because they failed to
appear for their removal hearings. During our discussion with A Significant
Number of

Released Aliens Are Not Appearing for Their Removal Hearings

Many Aliens Who Changed Removal Hearing Location Were Not Appearing for
Their Hearings

Page 9 GAO- 02- 220T

immigration judges in New York City, they said that the records of some
aliens who received a change of hearing location to New York from Los
Angeles contained incorrect information, such as nonexistent addresses as
their residences.

To determine whether or not aliens who claimed to have a fear of persecution
or torture pursued their claim of asylum, we reviewed the rate by which
claimants failed to file applications for asylum. Generally, these aliens
have 1 year from their arrival to file an application showing their intent
to request asylum.

Our analysis of the joint INS and EOIR database showed that since the
inception of the expedited removal program on April 1, 1997, through fiscal
year 1999, 7,947 aliens were determined to have a credible fear of
persecution or torture. Of these 7,947 aliens, 3,140 aliens had not filed
for asylum, as of February 22, 2000. Of the 3,140 aliens who had not filed,
1,338 (or 43 percent) aliens missed the 1- year required filing deadline and
as a result, generally may not be able to file for asylum. In addition,
1,239 of the 3, 140 aliens who did not file an asylum application were
subsequently ordered removed by an immigration judge.

In our September 2000 report, we concluded that many aliens may be using the
credible fear process to illegally remain in the United States. In addition,
our analysis showed that aliens who requested and received a change of
location of their removal hearing did not appear for their hearings.
Accordingly, we recommended that the INS reevaluate its policy for when to
release aliens who have a credible fear of persecution or torture, and that
INS and EOIR work together to establish a system to provide better
information from the aliens when they request a change of venue of their
removal hearing. The Department of Justice agreed with our recommendations
and said that it is are studying how to address our recommendations.

As previously mentioned, INS decided not to subject aliens who attempt to
enter the country between ports of entry or without inspection or parole to
the expedited removal process. Instead, once an alien is apprehended,
generally by the Border Patrol, INS usually takes one of two courses of
action.

Under the first course of action, an apprehended alien can request INS to
permit him or her to voluntarily depart the country. This is commonly Many
Aliens Are Not Filing

Asylum Applications INS? Processes for Denying Aliens Entry Between Ports of
Entry and Without Inspection

Page 10 GAO- 02- 220T

referred to as voluntary return to home country. By permitting the aliens to
voluntarily return to their country, the aliens would not be subject to any
penalty or fine. But if they wanted to return to the United States their
subsequent visa applications may note that they had previously enter the
country without permission. Voluntary departure can take place immediately
after the alien?s background is checked or at a future date specified by
INS. INS considers these requests on a case- by- case basis and would permit
the alien to voluntarily depart if, for example, the alien had no criminal
record or history of illegal attempts to enter the country.

INS has a reciprocal agreement with Mexico and Canada, that they will accept
their citizens. The aliens from Mexico or Canada who are apprehended near
their border would be returned immediately under a voluntary removal granted
by the INS. If apprehended away from their border and INS granted voluntary
removal, the aliens would then be flown to their home country. For aliens
who are not from Mexico or Canada, they would be flown home if INS offered
them voluntary removal. INS officials said that in such situations, the
aliens would usually remain under INS? control until they can be returned to
their country.

Under the second course of action, INS can place aliens in a removal hearing
before an immigration judge. This action results in a penalty that would
limit the alien?s ability to reenter the country in the future. During
removal hearings, aliens can apply for relief from their removal (e. g.,
apply for asylum). INS can detain aliens during the removal hearing process
or release the aliens on bond or on their on recognizance. In deciding
whether or not to detain the aliens, INS considers such factors as the
likelihood that the aliens will appear for their removal hearing or whether
aliens present a danger to the community.

Mr. Chairman, this completes my statement. I would be pleased to answer any
questions that you or other members of the Subcommittee may have.

For further information regarding this testimony, please contact Richard M.
Stana at (202) 512- 8777. James M. Blume made key contribution to this
testimony. Contact and

Acknowledgment

(440099)
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