Immigration Enforcement: Better Data and Controls Are Needed to  
Assure Consistency with the Supreme Court Decision on Long-Term  
Alien Detention (27-MAY-04, GAO-04-434).			 
                                                                 
The U.S. Supreme Court's June 2001 ruling, Zadvydas v. Davis,	 
held that indefinite detention of certain removable aliens was	 
unlawful if their removal was not likely in the reasonably	 
foreseeable future, even if they were deemed to be a threat to	 
the community or a flight risk. U.S. Immigration and Customs	 
Enforcement (ICE) conducts post order custody reviews of	 
removable aliens to determine if continued detention is in	 
compliance with laws and regulations. ICE is to assure that	 
aliens meet the conditions of their release. This report	 
addresses (1) what information ICE has to assure that its custody
reviews are timely and consistent with the Zadvydas decision and 
implementing regulations and (2) how ICE has assured that aliens 
released on orders of supervision have met the conditions of	 
their release.							 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-04-434 					        
    ACCNO:   A10183						        
  TITLE:     Immigration Enforcement: Better Data and Controls Are    
Needed to Assure Consistency with the Supreme Court Decision on  
Long-Term Alien Detention					 
     DATE:   05/27/2004 
  SUBJECT:   Deportation					 
	     Federal regulations				 
	     Illegal aliens					 
	     National preparedness				 
	     Immigration information systems			 
	     Immigration or emigration				 
	     Noncompliance					 
	     Timeliness 					 
	     INS Deportable Alien Control System		 
	     INS Enforcement Case Tracking System		 

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GAO-04-434

United States General Accounting Office

GAO

                       Report to Congressional Requesters

May 2004

IMMIGRATION ENFORCEMENT

Better Data and Controls Are Needed to Assure Consistency with the Supreme Court
                     Decision on Long-Term Alien Detention

GAO-04-434

Highlights of GAO-04-434, a report to congressional requesters

The U.S. Supreme Court's June 2001 ruling, Zadvydas v. Davis, held that
indefinite detention of certain removable aliens was unlawful if their
removal was not likely in the reasonably foreseeable future, even if they
were deemed to be a threat to the community or a flight risk. U.S.
Immigration and Customs Enforcement (ICE) conducts post order custody
reviews of removable aliens to determine if continued detention is in
compliance with laws and regulations. ICE is to assure that aliens meet
the conditions of their release. This report addresses (1) what
information ICE has to assure that its custody reviews are timely and
consistent with the Zadvydas decision and implementing regulations and (2)
how ICE has assured that aliens released on orders of supervision have met
the conditions of their release.

GAO recommends that the Secretary of the Department of Homeland Security
direct the Assistant Secretary for ICE to (1) ensure that ICE has
complete, accurate, and readily available information to help assure
compliance with the Zadvydas decision and implementing regulations; (2)
determine ICE deportation officer staffing needs; and (3) provide guidance
to ICE deportation officers on prioritizing their supervision caseloads.

ICE agreed to implement GAO's recommendations.

www.gao.gov/cgi-bin/getrpt?GAO-04-434.

To view the full product, including the scope and methodology, click on
the link above. For more information, contact Richard M. Stana,
202-512-8777, [email protected].

May 2004

IMMIGRATION ENFORCEMENT

Better Data and Controls Are Needed to Assure Consistency with the Supreme Court
Decision on Long-Term Alien Detention

ICE does not have information that provides assurance that its custody
reviews are timely and its custody determinations are consistent with the
Zadvydas decision and implementing regulations. One reason ICE has
difficulty providing assurance is that it lacks complete, accurate, and
readily available information to provide deportation officers when post
order custody reviews are due for eligible aliens. In addition, ICE does
not have the capability to record information on how many post order
custody reviews have been made pursuant to regulations and what decisions
resulted from those reviews. Therefore, ICE managers cannot gauge overall
compliance with the regulations for aliens who have been ordered to be
removed from the United States. Although ICE is in the process of updating
its case management system, ICE officials said that they did not know when
the system will have the capability to capture information about the
timeliness and results of post order custody reviews.

ICE also does not have readily available information on how many aliens
have been released on orders of supervision pursuant to the Zadvydas
regulations, or whether these aliens have met the conditions of their
release (i.e., periodically report to ICE and continue to seek travel
documents from their home country). One reason for this is that ICE does
not have the capability to track aliens' actions required by the
conditions of their release. ICE officials also reported that ICE has a
shortage of deportation staff, but they did not know how many staff are
needed to manage the supervision caseload. Despite ICE's challenges in
this area, ICE has not provided guidance to its field offices to help them
prioritize deportation officer duties and supervision cases. Such
prioritization could help ICE target its resources on those supervision
cases that present the highest risk to public safety.

Alien Removal and Custody Review Process under Zadvydas

Source: GAO.

Contents

  Letter

Results in Brief
Background
ICE's Case Management System Does Not Help Assure Timely

Custody Reviews and Hampers ICE's Ability to Determine whether the Reviews
Are Consistent with the Zadvydas Decision

ICE Lacks Assurance that Aliens Released on Orders of Supervision Met the
Conditions of Their Release ICE Has Had Some Success Working with the
Department of State

When Travel Documents Are Difficult to Obtain Conclusions Recommendations
for Executive Action Agency Comments and Our Evaluation

                                       1

                                      3 6

11

16

21 24 25 25

Appendix I Objectives, Scope, and Methodology

Appendix II	ICE's Basic Custody Review and Supervision Process for
Long-Term Detainees with Final Orders of Removal

Factors That Affect Aliens' Release from Detention after the 90-Day Post
Order Custody Review Factors That Affect Aliens' Release from Detention
after the 180-Day Post Order Custody Review Orders of Supervision

                                       29

                                       31

                                     31 32

Appendix III Description of the Supreme Court's Zadvydas v.             
                                      Davis Decision                       34 
                        Attorney General Guidance and Regulations          34 
                        Judicial Application of Zadvydas Standards         35 
                   Judicial Action Regarding the Expansion of the Zadvydas 38 
                                                                   Holding 
Appendix IV  Comments from the Department of Homeland                   
                                         Security                          41 

Appendix V GAO Contacts and Acknowledgments 43

GAO Contacts 43 Acknowledgments 43

Table

Table 1: Removable Aliens from Laos and Vietnam Awaiting Travel Documents
as of February 8, 2004

Figure

Figure 1: Factors That Affect Aliens' Release from Detention

Abbreviations

DACS Deportable Alien Control System
DCI data collection instrument
DHS Department of Homeland Security

ENFORCE Enforcement Case Tracking System
EREM Enforcement Case Tracking System Removal Module
HQPDU Headquarters Post Order Detention Unit

ICE U.S. Immigration and Customs Enforcement Bureau
INS Immigration and Naturalization Service

This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
work may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this material
separately.

United States General Accounting Office Washington, DC 20548

May 27, 2004

The Honorable Russell D. Feingold
Ranking Minority Member
Subcommittee on the Constitution, Civil Rights,

and Property Rights
Committee on the Judiciary
United States Senate

The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
House of Representatives

Until 2001, aliens who were issued final orders of removal from the United
States could be held in detention facilities indefinitely if U.S.
immigration
authorities determined that the aliens were a threat to the community or a
flight risk. However, after the June 2001 U.S. Supreme Court decision in
Zadvydas v. Davis, many aliens with final orders of removal, including
aliens determined to be a threat to the community or flight risk, could no
longer be detained beyond a period of 6 months if there was no significant
likelihood of their removal in the reasonably foreseeable future.1 Only
aliens who posed certain health and safety risks could continue to be
detained indefinitely. U.S. immigration authorities are to enforce the
Supreme Court's ruling so that (1) aliens covered by the ruling are not
held
in detention beyond 6 months once it is determined that there is no
significant likelihood of removal in the reasonably foreseeable future and
(2) aliens released from detention pursuant to the ruling meet the
conditions of their release. The meaning of "reasonably foreseeable
future" was not defined in the ruling or in regulations and guidance that
were subsequently issued. U.S. immigration authorities are to use their
judgment, based on the facts and circumstances of each case, to determine
what constitutes the "reasonably foreseeable future." The Zadvydas
decision applies to aliens who have been ordered removed from the
United States because they violated the nation's immigration laws. The
aliens could have originally entered the country either legally or
illegally.

1533 U.S. 678 (2001).

The Department of Homeland Security's (DHS) U.S. Immigration and Customs
Enforcement Bureau (ICE) is responsible through its Office of Detention
and Removals for making alien custody determinations that are consistent
with the Zadvydas decision.2 ICE deportation officers are to conduct
periodic reviews of aliens' records and decide whether to release or
continue to detain the aliens. In these reviews, known as post order
custody reviews because they pertain to detained aliens who have been
ordered to be removed from the United States, ICE deportation officers are
to determine if the alien's continued detention is justified and in
compliance with governing laws and regulations. Aliens released from
detention as a result of a post order custody review, including those
released pursuant to the Zadvydas decision, are to be released on orders
of supervision that prescribe the conditions of the release. In addition,
ICE deportation officers are to determine whether aliens have met the
conditions of their release, such as periodically reporting to an ICE
office and informing ICE of any address change.

In response to your inquiry regarding the long-term detention of aliens
and the implementation of the Zadvydas decision, our review addresses the
following questions: (1) What information does ICE have to assure that
custody reviews are timely3 and result in decisions that are consistent
with the Zadvydas decision and implementing regulations? (2) How has ICE
assured that aliens released on orders of supervision have met the
conditions of their release? (3) When foreign governments refuse or delay
issuing travel documents for the aliens to be removed to their countries,
what efforts has ICE made to overcome these obstacles, and what are the
results of those efforts?

2ICE was established on March 1, 2003, as part of the newly formed DHS
(Homeland Security Act of 2002 (Pub.L.No. 107-296, 116 Stat. 2135)). Prior
to that time, immigration enforcement functions were the responsibility of
the Immigration and Naturalization Service, which has been abolished. In
some instances, events that we refer to occurred prior to March 1, 2003.
For ease of presentation, in this report we refer to "ICE" as the
immigration agency responsible for implementing the Zadvydas decision even
if events cited in the text occurred prior to March 1, 2003.

3Timely conduct of post order custody reviews means that ICE conducts a
post order custody review as promptly as possible on or after the date
that an alien with a final order of removal reaches 180 days in detention.
See 8 C.F.R. S:241.4(k)(2)(ii) and 8 C.F.R. S:241.4(k)(2)(iv). According
to the Deputy Assistant Director, ICE Office of Detention and Removals,
Case Management Division, the complexities of the case and the
availability of ICE personnel can affect how promptly the post order
custody review is conducted.

To address these questions, we reviewed relevant documents, including ICE
regulations and policies. We interviewed officials at ICE headquarters and
in its Washington, D.C.;4 Chicago, Ill.; Los Angeles, Calif.; and New
Orleans, La., field offices. We visited these field offices because they
had relatively large numbers of aliens who were detained for longer than
180 days, and they were geographically dispersed. In the Washington, D.C.,
field office, we also selected a random sample of cases for detainees who
either were being held in ICE detention with a removal order for at least
180 days as of March 3, 2003, or had been held in ICE detention with a
removal order for at least 180 days but were released from detention or
removed from the United States between July 1, 2001, and March 3, 2003.
However, the information obtained from the case file review may not be
generalized to all cases in ICE's Washington, D.C., field office. This is
because for many cases, ICE did not have information on whether or when a
final order of removal was issued, making it impossible to compute the
number of days the alien was held in detention following the removal
order. Because we reviewed cases from only one ICE field office, the
information from the case file review also cannot be generalized to all
ICE long-term detention cases nationwide. In addition, we interviewed
officials and reviewed documents at the Department of State.

We conducted our work between December 2002 and March 2004 in accordance
with generally accepted government auditing standards. Appendix I provides
more details about our scope and methodology.

ICE does not have information that provides assurance that its custody
reviews are timely and its custody determinations are consistent with the
Zadvydas decision and implementing regulations. ICE has an outdated,
difficult-to-use, inefficient case management system that cannot readily
notify deportation officers when post order custody reviews are due for
eligible aliens. Three of the four ICE field offices we visited developed
their own methods for trying to ensure timely reviews, but none of the
methods automatically identify which aliens are due for post order custody
reviews and when these reviews are to be conducted. Our review of 45 case
files at ICE's Washington, D.C., field office indicated that in 42 cases,
custody reviews were done on time. In 3 of the 45 cases, the post order
custody review was either late or not done at all, raising the possibility
that ICE did not comply with the Zadvydas regulations. ICE's

Results in Brief

4The Washington, D.C., field office is located in Arlington, Va.

case management system does not contain information that would enable ICE
to determine how many post order custody reviews have been made pursuant
to the Zadvydas decision and what decisions resulted from those reviews.
Therefore, ICE managers are not in a position to know if the custody
determinations were consistent with the Zadvydas decision and implementing
regulations. ICE recognizes the limitations of its current case management
system and has been working on developing a new system that should help
its officers readily identify aliens who are due for a post order custody
review and enable the officers to capture information on the results of
the review. However, these improvements are being made in connection with
a broader redesign of its detention and removal case management system,
and ICE officials did not know when the new system would incorporate the
enhanced capabilities. Until ICE can (1) provide complete and timely
information to deportation officers on when and for whom post order
custody reviews are due and (2) identify which custody decisions were made
pursuant to the Zadvydas decision, ICE will not be in the best position to
assure proper implementation of the Zadvydas decision.

ICE does not have readily available information on how many aliens have
been released on orders of supervision pursuant to the Zadvydas
regulations or whether these aliens have met the conditions of their
release. When such aliens with final orders of removal are released into
communities in the United States, ICE is responsible for assuring that the
aliens meet the conditions of their release (e.g., periodically report to
the ICE office, obey all laws, and continue to seek to obtain travel
documents). However, ICE cannot provide assurance that aliens meet the
conditions of their release, even for criminal aliens who might pose a
threat to the community, or that these aliens can be found for removal.
One reason for this lack of assurance is that ICE's case management
system, discussed earlier, cannot provide deportation officers with a
summary list of aliens released on orders of supervision, an automatic
notification of when the aliens are to report in to ICE, and information
regarding the aliens' compliance with the conditions of their release.
According to ICE officials, the new case management system will eventually
have these capabilities, but these officials did not know when it will be
in place. Another reason for the lack of assurance, according to ICE
officials and deportation officers, is that there are not enough
deportation officers to effectively manage the range of duties and many
cases that they are assigned. These challenges notwithstanding, ICE has
not determined how many deportation officers it needs to manage the
workload and has not collected data that would enable it to make that
determination. ICE also has not prioritized the duties of its deportation

officers and its cases of aliens released on orders of supervision.
Deportation officers in some field offices have attempted to prioritize
their supervision cases, but ICE has not issued guidance to help its
deportation officers target their efforts on those aliens released on
orders of supervision who pose the greatest threat to public safety.

ICE has worked, with some success, with the Department of State and
foreign governments to try to overcome delays in obtaining travel
documents from some foreign governments. In addition, DHS and State have
signed a formal agreement to, among other things, foster collaboration
with each other in dealing with foreign governments that refuse to issue
or delay issuing travel documents for their nationals. There are
countries, such as Vietnam, Laos, and China, that have consistently
refused to issue travel documents or delayed issuing them, according to
ICE officials. ICE and State officials said that foreign governments may
decide not to issue travel documents if, for example, the alien has not
lived in that country for a long period of time, may not have a means of
support upon return, or has a criminal background. State has the authority
to deny visas to individuals from countries that do not issue travel
documents for the return of their nationals. According to ICE and State
officials, this authority has been used only once because of concern about
its potential negative impact on overall diplomatic relations with other
countries. ICE and State have worked jointly to secure an agreement from
the government of Cambodia for it to issue travel documents for some of
its nationals in return for U.S. financial assistance with expenses
related to the issuance of the documents and reintegration of the alien
into Cambodian society.

Because it is important for ICE to identify and do timely reviews for
cases subject to the Zadvydas decision, determine the extent to which it
has implemented the Zadvydas decision, and identify and track aliens
released on orders of supervision, we are making several recommendations
to the Secretary of the Department of Homeland Security. The
recommendations are intended to help ICE improve the information it
maintains on longterm detainees and supervision cases, better determine
its deportation officer staffing needs, and better focus its limited
resources by providing guidance to ICE deportation officers on
prioritizing their supervision caseloads.

We provided a draft of this report to the Secretary of DHS and to the
Assistant Secretary for ICE for their review and comment. On behalf of
DHS, the Assistant Secretary for ICE concurred with our

Background

recommendations and commented on the actions ICE will take to implement
them.

In its June 2001 Zadvydas v. Davis decision, the U.S. Supreme Court
established a presumptively reasonable period of time-specifically, up to
6 months-that aliens with final removal orders can be detained if their
removal is not likely in the reasonably foreseeable future. Prior to this
decision, if aliens were determined to be a threat to the community or
posed a flight risk, they could be detained indefinitely while their
travel documents were sought.

In response to the Zadvydas decision, ICE issued interim regulations in
November 2001 amending its post order custody review process for detained
aliens with a final order of removal.5 These interim regulations
instituted new processes for determining whether there is a significant
likelihood of removing an alien in the reasonably foreseeable future and
whether there are special circumstances justifying continued detention.6
In July 2001, prior to the interim regulations being issued, the Attorney
General and ICE issued interim guidance for releasing detainees who were
covered by Zadvydas. The guidance from the Attorney General directed,
among other things, that ICE immediately renew efforts to remove all
aliens in post order detention, placing special emphasis on aliens who had
been detained the longest. The guidance from ICE explained, among other
things, the categories of aliens that were covered by the Zadvydas
decision and that released aliens should be subject to orders of
supervision.

Under the Zadvydas decision and implementing regulations, ICE is to
release an alien who has been held in detention for 180 days or more if
ICE determines that (1) the alien's removal is not likely to occur in the
reasonably foreseeable future and (2) the alien is not a "special
circumstance" case. A special circumstance case is one in which the alien
has a highly contagious disease, could pose a significant threat to
national security, could present adverse foreign policy consequences if
released, or has a mental health condition that may lead to violent
behavior. Under the regulations implementing the Zadvydas decision, ICE is
not supposed to consider whether the alien may be a threat to the
community or a flight

5Interim Regulations, Continued Detention of Aliens Subject to Final
Orders of Removal, 66 Federal Register, 56967 (2001).

68 C.F.R. S:S: 241.13 and 241.14.

risk in making the custody decision for aliens who have been detained for
180 days or more. Instead, ICE is to release such aliens on orders of
supervision that prescribe the conditions of their release.

DHS's ICE, which was established on March 1, 2003, handles immigration
enforcement functions in the country's interior.7 These functions were
previously the responsibility of the Immigration and Naturalization
Service (INS). Among its duties, ICE, through its Office of Detention and
Removals, is responsible for detaining and removing aliens who violate
U.S. immigration laws, and for assuring that aliens released on orders of
supervision have complied with the conditions of their release. ICE is
responsible for working with the consulates and embassies of foreign
governments to help removable aliens obtain travel documents so that ICE
can return them to their home countries. ICE deportation officers are to
conduct custody reviews-known as post order custody reviews-for aliens who
are held in detention after they have received a final order of removal.8
The final order of removal generally means that the alien has exhausted
all appeals to remain in the United States and is to be returned to his or
her country of origin or citizenship.

ICE regulations require its field offices to conduct a post order custody
review 90 days after a detained alien receives a final order of removal.9
When conducting the 90-day review, ICE can decide to continue to detain an
alien if it (1) expects travel documents for an alien to be forthcoming in
the reasonably foreseeable future, (2) determines that the alien has not
cooperated with his or her removal process, or (3) determines that the
alien is a threat to the community or poses a flight risk. Factors that
are to be considered in determining whether the alien is a threat to the
community or a flight risk include the detainee's criminal history,
evidence of rehabilitation, the number of close relatives residing in the
United States lawfully, and the alien's history in appearing for
immigration or other proceedings. The purpose of the post order custody
review is to determine whether to release the alien into the community
until a travel document is obtained and the alien can be removed, or to
continue to hold the alien in detention for another 90 days, pending
removal.

7When INS was abolished, responsibility for protecting the U.S. borders
was assigned to DHS's Bureau of Customs and Border Protection.

88 C.F.R. Part 241.

9This 90-day period is referred to as the "removal period."

Aliens who continue to be detained after the 90-day post order custody
review are to receive another review by ICE headquarters as soon as is
practicable after 180 days in detention.10 Among other things, the 180-day
post order custody review is to consider whether travel documents are
likely to be obtained in the reasonably foreseeable future and the alien
is cooperating with his or her own removal (e.g., by providing ICE
deportation officers with personal information required for a travel
document). At this time, aliens either qualify for review under
regulations developed pursuant to the Zadvydas decision or do not.11 For
example, detained aliens who were stopped at the border would not qualify
for review under Zadvydas and would be reviewed under the 90-day post
order custody review criteria as previously discussed.12

When conducting the 180-day review for an alien who qualifies for review
under the Zadvydas regulations, ICE is to release the alien from detention
if (1) ICE does not expect travel documents for the alien to be
forthcoming in the reasonably foreseeable future and (2) no "special
circumstances," such as the alien being a national security risk, exist.
The alien is to be released from detention even if he or she is deemed a
threat to the community or poses a flight risk. When an alien is released
from detention as a result of a post order custody review, the alien is to
be issued an order of supervision that specifies release conditions that
the alien must meet. Aliens on orders of supervision are to

o  	report periodically to an ICE field office to provide information
required by the conditions of his or her release;

o  continue efforts to obtain a travel document and assist ICE in doing
so;

o  	obtain advance approval of travel beyond previously specified times
and distances;

o  	provide ICE with a written notice of any change of address within 10
days of the change; and

10ICE field offices are to send a memorandum to ICE headquarters updating
the status of the case.

118 C.F.R. S: 241.13.

12Aliens who do not qualify for a post order custody review under the
Zadvydas decision and resulting regulations are as follows: (1) aliens who
do not cooperate in facilitating their removal; (2) arriving aliens (a)
stopped at the border, (b) granted temporary permission to enter the
United States, and (c) who are Mariel Cubans, a group of aliens who, in
1980, attempted to enter the United States as part of a mass migration
from Cuba without documentation permitting them legal entry; and (3)
aliens ordered removed by the Alien Terrorist Removal Court. This court
was established in 1996 (8 U.S.C. S:S: 1531-1537).

o  report as directed for a mental or physical examination as directed by
ICE.

Figure 1 shows the factors that affect decision-making at the 90- and
180-day post order custody reviews. Additional information on ICE's
process for detaining and releasing removable aliens is contained in
appendix II.

Figure 1: Factors That Affect Aliens' Release from Detention

    180-day factors preventing release for aliens qualifying under Zadvydas
                                  regulations

Source: GAO.

Note: If an alien has filed an action disputing his or her detention
(i.e., a petition for a writ of habeas corpus), and a court has ordered a
stay of the alien's removal, the calculation of the number of days the
alien has been detained with a final order does not begin until the court
rules that the alien is to be removed. (8 C.F.R. S: 241.4(g)(1)(i)(B)).

aA post order custody review is to be conducted at 180 days or as soon as
practicable thereafter.

bICE continues working to obtain travel documents after the alien is
released from detention.

Relying on the Zadvydas decision, over 200 aliens have filed lawsuits
requesting relief from extended detention as of January 2004.13 The
rulings in these Zadvydas decisions have generally been focused on the
facts of the individual case, especially on factors relating to the length
of time that the alien has been in custody and on the circumstances
surrounding the destination country's response to the removal effort. Many
of these lawsuits concern ICE's refusal to release the alien because ICE
believes that the travel documents would be forthcoming in the reasonably
foreseeable future. The following federal district court cases are two
examples of rulings in which federal courts reached opposite conclusions
on the likelihood that travel documents would be issued:

o  	Kacanic v. Elwood:14 In the case brought by Fadil Kacanic, a Yugoslav
national, against Kenneth Elwood, ICE District Director, the federal
district court found that the alien, a Yugoslav national, had shown good
reason to believe that he would not be removed in the reasonably
foreseeable future. In reaching this conclusion, the court relied on (1)
the fact that the alien had already spent a full year in custody, (2) that
the Yugoslavian Embassy never offered any reason for why obtaining travel
documents was taking longer than normal and did not provide any definitive
answer about when travel documents would be forthcoming, and (3) ICE
failed to effectively rebut the alien's claim that receiving travel
documents was unlikely. The alien, who had 3 years of supervised release
remaining from a sentence for a prior federal offense, was released from
ICE detention into the custody of the Bureau of Prisons to serve the term
of supervised release.

o  	Lema v. INS:15 In a case brought by Shibeshi Lema, an Ethiopian
national, against INS, the federal district court concluded that the U.S.
government and the alien, working together, should be able to convince the
government of Ethiopia that the alien is, in fact, a native of Ethiopia.
The court concluded that once citizenship was established, it would be
reasonable to expect Ethiopia will issue travel documents. Although the
court acknowledged that overcoming the country's concern could take time
and effort, the alien's deportation was reasonably foreseeable once the
legitimacy of the alien's citizenship claim was resolved. Consequently,
the alien was kept in detention.

13Aliens may obtain legal counsel at their own expense. 8 U.S.C. S: 1362.
142002 WL 31520362 (E.D. Pa. Nov. 8, 2002).
15214 F. Supp. 2d 1116 (W.D. Wash. 2002).

ICE's Case Management System Does Not Help Assure Timely Custody Reviews
and Hampers ICE's Ability to Determine whether the Reviews Are Consistent
with the Zadvydas Decision

Appendix III contains additional discussion of case law pertaining to the
Zadvydas decision.

ICE's case management system is not designed to provide readily accessible
information on which aliens are due for a post order custody review.
Consequently, the system does not facilitate deportation officers' efforts
to assure that these reviews are done on time. ICE's case management
system is also not designed to identify cases reviewed pursuant to the
Zadvydas regulations. Therefore, the system does not facilitate ICE's
ability to determine (1) if custody decisions are consistent with the
Zadvydas ruling or (2) the extent of its compliance with the Zadvydas
regulations. Three of the four ICE field offices we visited developed
their own methods for trying to ensure timely reviews. However, these
methods do not automatically identify which aliens are due for post order
custody reviews and when these reviews are to be conducted. Our review of
45 case files at ICE's Washington, D.C., field office indicated that
custody reviews were done on time in 42 cases. In the remaining 3 cases,
custody reviews were either not done or done late, raising the possibility
that ICE did not comply with the Zadvydas regulations in these cases.
Because of weaknesses in its case management system, ICE is not optimally
positioned to carry out its responsibilities, measure its performance, or
determine its compliance with the regulations stemming from the Zadvydas
ruling.

ICE's Case Management System Does Not Help Assure the Timeliness of Its
Custody Reviews

ICE has an outdated, difficult-to-use, inefficient case management system
that does not help it assure that post order custody reviews are done
after an alien has been detained with a final order for 90 days and again
at 180 days if the alien is still in detention. The system's inability to
notify deportation officers when post order custody reviews are due could
result in aliens being held longer than they should be. ICE's current case
management system, the Deportable Alien Control System (DACS), does not
meet internal control standards for federal agencies set out by the
Comptroller General as required by the Federal Managers' Financial
Integrity Act of 1982. These standards state that effective information
technology is critical to achieving useful, reliable, and continuous
recording of information and that pertinent information should be
identified, captured, and distributed in a form and time frame that
permits people to perform their duties efficiently. Among DACS's
limitations is that it lacks the capability to automatically notify
deportation officers when a custody review is due for an alien. Although
deportation officers can enter post order custody review due dates and
reminders in DACS to help them manage their caseload, this approach relies
on deportation

officers manually entering this information for each alien who might be
eligible for a post order custody review. Even when they do this,
deportation officers will not be automatically notified when the review is
due. Instead, they must periodically perform a specific case-by-case DACS
query to determine which aliens are due for a review.

ICE supervisors and managers can try to oversee the work of their staff by
querying DACS in the same way that a deportation officer can. However,
they are faced with the same tracking and notification limitations as
deportation officers. In its "Office of Detention and Removal Strategic
Plan, 2003-2012," ICE acknowledges the limitations of DACS by
characterizing it as a system that is not responsive to the demands that
today's operational environment places on it.

Because of DACS's inability to automatically identify which aliens are due
for post order custody reviews and when these reviews are to be conducted,
officials at three of the four ICE field offices we visited developed
their own methods for trying to ensure timely reviews. Field office staff
in these offices developed spreadsheets or lists of aliens, identifying
key dates, such as when a detained alien must be notified about the review
and when a review is due. The spreadsheets and lists have one of the same
basic limitations as DACS; that is, they do not have automatic reminders
that notify deportation officers when post order custody reviews are due.
The deportation officer must proactively enter key information into the
spreadsheet or add the information to the list, and the officer must query
each case individually to determine when a review is due.

Although they did not have supporting evidence for their view, most of the
33 individuals we spoke with in our 4 field office visits who were
responsible for post order custody reviews believed that the reviews were
always or almost always done on time. This belief was expressed by 14 of
15 deportation officers, 4 of 7 supervisory deportation officers, and 10
of 11 field office and detention facility managers. Reasons given for a
review occasionally not being done on time included the following: (1)
other work may need attention, (2) a case that was transferred from one
field office to another may already have missed the review date by the
time the second office received it, (3) the alien may be detained at a
remote location and not readily available if the deportation officer wants
to perform a personal interview, or (4) the case is simply overlooked. ICE
field officials did not provide information on how significant or
widespread these reasons are for causing a delayed review because they did
not track such information.

Our review of a nongeneralizable sample of 45 case files at ICE's
Washington, D.C., field office indicated that in the vast majority of
cases, custody reviews were done on time. However, we identified 3 cases
where the 180-day post order custody review was not done on time.

o  	In the first case, an ICE headquarters official told us that the
180-day post order custody review was about 3 months late because they
were having difficulty verifying the alien's true identity. After the
alien's identity was determined, ICE conducted the custody review and
decided to detain the alien because they expected travel documents for the
alien to be issued in the reasonably foreseeable future. The alien was
removed about 1 month after the 180-day post order custody review.

o  	The second case involves an alien who had been in detention with a
removal order for almost 6 years and for nearly 3 years since the Zadvydas
decision by the Supreme Court. The alien has not had a post order custody
review as required by ICE regulations to determine whether there is a
significant likelihood of the alien's removal in the reasonably
foreseeable future. ICE records show that the alien has a violent criminal
history and, based on a psychiatric evaluation of the alien, mental
problems. However, the alien was still in detention and the required post
order custody review had not been conducted as of February 2004. An ICE
headquarters official said that Cambodian government officials are
expected to be in the United States in the near future and may issue
travel documents for the alien. Although ICE officials provided an
explanation for continuing to detain the alien, they failed to justify why
the required post order custody review was not conducted.

o  	The third case involved an alien who received a final removal order in
October 2001 but was held in detention for an additional 21 months.
Although the alien's case was transferred to ICE headquarters in May 2002
(i.e., about 180 days after the removal order was issued, as called for in
the Zadvydas regulations), ICE headquarters did not conduct a custody
review for the alien until October 2002-a full year after the alien was
ordered removed. The October 2002 custody review resulted in ICE deciding
to release the alien provided that he posted a $2,500 bond as a condition
of release. According to an ICE headquarters official, ICE decided to
impose a bond because the alien had a violent criminal history and prior
parole violations. According to ICE regulations, a bond may be

required as a condition of release. Because the alien did not pay the
bond,16 he continued to be held in detention for an additional 9 months.
In July 2003, ICE removed the alien from the United States. According to
an ICE headquarters official, the alien's removal took 21 months because
the embassy for the alien's country delayed issuing travel documents until
they could confirm his identity.

Because post order custody reviews were not conducted on time in these
cases, the possibility exists that ICE did not comply with Zadvydas
regulations.

                            ICE Is Developing a New
                             Case Management System

Recognizing the inefficient, cumbersome nature of DACS, ICE has begun to
develop a new automated detention and removal case management system.
According to ICE officials, the new system, called the Enforcement Case
Tracking System (ENFORCE) Removal Module (EREM), will be a Web based
system that is to be implemented in four phases.17 The first phase will
generally have the same information as DACS, except it will be Web based
and add such enhancements as dropdown menus to aid in finding information
easily. According to these officials, each successive phase will have
additional capabilities. ICE plans to deploy each successive phase in
6-month increments. The officials said that EREM will eventually be able
to automatically identify which aliens are due for a post order custody
review and generate key information such as when aliens should be notified
of the review and when the review is to be done. However, it is unclear
when EREM will incorporate these capabilities. According to ICE officials,
ICE has encountered challenges in the development of EREM. For example, an
ICE official said that in tests, EREM has had problems saving data when
multiple users are entering and attempting to save data into the system at
the same time. Additionally, the

16The alien's file contained no information indicating that he paid the
bond. According to ICE officials, an alien in this situation can request a
redetermination of the bond and provide evidence of financial inability.
ICE would then reassess the bond requirement and make a decision to reduce
the bond amount, release the alien without a bond, or continue to detain
him. There was no information in the alien's case file indicating whether
or not the alien was informed that he could seek a bond redetermination.
According to an ICE official, ICE began notifying aliens in writing in
2003 that they could request a redetermination of a bond amount.

17ENFORCE is used to support ICE's tracking and management reporting of
enforcement cases. Specifically, the system documents and tracks the
investigation, identification, apprehension, detention, and/or removal of
alien immigration law violators. EREM is to be a module within ENFORCE,
specifically the ENFORCE Removals Module.

official said that programmers have experienced difficulty trying to
incorporate information from a number of DACS screens into a single EREM
screen. The implementation date for the first phase, originally scheduled
for December 2003, was changed to October 2004. However, in April 2004,
ICE was not satisfied with the performance of its contractor. As a result,
an ICE official who is tasked with overseeing development of EREM told us
that implementation dates for the first and subsequent phases have not
been established.

EREM initially will not fully meet ICE's needs because it will not capture
information on actions that can legitimately extend the length of time
that aliens can be detained. For example, aliens who obtain a stay of
their removal by filing a court action can be legitimately detained until
the court resolves the alien's case. In such instances, ICE may continue
to detain the alien, but the period of time that a stay of removal is in
effect does not count toward the 180 days that ICE may keep an alien in
detention. ICE officials refer to this as "stopping the deportation
clock." Once the court renders a decision and the stay is lifted, the
180-day period begins over again. According to an ICE headquarters
official, ICE does not maintain data on the frequency of stays of removal.
As of February 2004, ICE had not decided how or when EREM would capture
information on events that start and stop the deportation clock in order
to calculate when the post order custody review is due.

ICE's Case Management System Hampers ICE's Ability to Accurately Determine
whether Its Custody Reviews Are Consistent with the Zadvydas Decision

ICE is not in the position to determine whether its custody reviews are
consistent with the Zadvydas decision because ICE managers do not have
readily available information on (1) how many post order custody decisions
were made during a given period of time, (2) how many of those decisions
were made directly pursuant to the Zadvydas regulations, and (3) what the
results of those decisions were. DACS does not capture data on these
activities. According to an ICE headquarters official, ICE has not
assessed whether it is in compliance with the Zadvydas regulations because
to do so would require manually reviewing each case file to obtain the
necessary information. ICE officials told us that EREM would capture such
data, but they have not yet identified when these specific enhancements
will be incorporated into the various phases of EREM deployment.

According to the Comptroller General's standards for internal control,
federal agencies need operating information to determine whether an agency
is achieving its compliance requirements under various laws and
regulations. ICE does not have readily available information to determine

ICE Lacks Assurance that Aliens Released on Orders of Supervision Met the
Conditions of Their Release

its compliance with regulations pursuant to the Zadvydas decision. Until
such information is incorporated into and can be readily retrieved from
ICE's case management system, the system will not meet internal control
requirements and will continue to hamper ICE's ability to determine the
extent to which its custody determinations are consistent with the
Zadvydas decision.

Regulations implementing the Zadvydas ruling require that aliens released
because there is no significant likelihood of removal in the reasonably
foreseeable future should be supervised and could be returned to custody
if the conditions of supervision are violated. ICE's deportation officers
are to assure that aliens released on orders of supervision have complied
with the conditions of their release. However, DACS is limited in its
ability to identify aliens who have been released on an order of
supervision and, according to officials in ICE headquarters and at the
field locations we visited, staff shortages make it difficult for
deportation officers to assure that aliens have met the conditions of
their release. Although providing this assurance is one of a number of
duties assigned to deportation officers, ICE has not provided deportation
officers with guidance on how to prioritize their duties or supervision
cases. Consequently, ICE is unable to determine whether and to what extent
such aliens who have been released on orders of supervision have met the
conditions of their release.

Deportation Officers Are to Assure that Aliens Meet the Conditions of
Their Release

Deportation officers are tasked with a number of duties in addition to
assuring that aliens comply with their orders of supervision. They are
responsible for all case management activity once an alien has been
brought into ICE custody until the alien has either been physically
removed from the United States or has transferred to a status enabling the
alien to stay within the United States. Deportation officers' case
management duties include

o  making alien custody determinations,

o  	establishing and maintaining liaison with foreign governments and
embassies or consulates to arrange for travel documents,

o  	assisting ICE and U.S. Attorneys in preparing cases where aliens have
appealed ICE actions,

o  	keeping track of whether aliens on orders of supervision have reported
in and complied with the conditions of their release, and

o  apprehending and arresting aliens who have absconded from ICE custody.

In addition, deportation officers are responsible for noncase management
duties such as jail inspections; serving as hearing officers for special
cases, such as Cuban Review Panels; and providing protective custody for
aliens (e.g., aliens cooperating with U.S. authorities in the criminal
prosecution of others).

When an alien reports to an ICE field office as specified by an order of
supervision, the deportation officer is to question the alien about his or
her compliance with the conditions of release and record the information
in DACS and in the alien's file. Conditions of release include
requirements to obey all laws and to periodically report to an ICE office
and provide information on compliance with any other conditions, such as
continuing efforts to obtain travel documents and notifying ICE of any
address change. If the deportation officer determines that the alien
failed to report as required, or violated any other condition of release,
the officer is to take corrective action, which may include locating and
returning the alien to detention.18

ICE's Case Management System Cannot Automatically Generate Information on
Aliens Released on Orders of Supervision

DACS, which is a database containing the names of about 1.7 million aliens
whose cases are active,19 including supervision cases, is limited in its
ability to help ICE deportation officers determine whether aliens released
on orders of supervision have met the conditions of their release. In
part, this is because DACS cannot readily identify which aliens have been
released on an order of supervision or automatically notify deportation
officers when an alien fails to report to ICE as required by his or her
conditions of release. ICE field offices have to perform a case-by-case
review to assemble a comprehensive list of aliens on orders of
supervision. Officials in 1 field office told us that they recently
developed a unique identifying code in DACS to help them identify which
aliens have been released on orders of supervision that they are
responsible for monitoring. However, such efforts do not overcome DACS's
inability to automatically provide deportation officers with a list of
aliens who should be reporting

18If an alien violates the conditions of the order of supervision, a
complete review of the circumstances surrounding the violation is to occur
in order to determine whether to revoke the order of supervision. In
addition, an informal interview with the alien is to be conducted so that
the alien can respond to the reasons for the revocation. The alien may be
detained following the interview and may also be prosecuted for violating
the order of supervision.

19An active case is one in which either the alien is currently in removal
proceedings or the alien's case was closed during the past 2 fiscal years.

to them. DACS also does not automatically notify the deportation officer
that an alien released on an order of supervision has failed to report as
required. Instead, once an alien has been released on an order of
supervision, the deportation officer is to manually enter the alien's
required reporting dates into DACS and then perform a case-by-case DACS
query to determine which aliens are due to report in.

ICE officials told us that EREM, the automated case management system that
ICE is developing, will help deportation officers monitor whether aliens
have met the conditions of their release. The officials said that EREM
will eventually have the ability to automatically identify which aliens
are released on orders of supervision and will automatically notify
deportation officers of the dates that aliens are required to report to
them. As noted earlier, however, ICE has encountered delays in developing
EREM and did not know when these capabilities would be implemented.

ICE Officials Said Staffing Shortfalls and Heavy Workloads Impede Their
Ability to Monitor Aliens' Compliance with Orders of Supervision

Officials at each of the 4 field offices we visited identified staffing
shortages and heavy workload as factors that impeded deportation officers'
ability to monitor aliens' compliance with their orders of supervision.
All 4 field office managers and all 4 supervisory deportation officers who
were responsible for cases of aliens released on orders of supervision20
said that they needed additional staff to improve the monitoring of
aliens' compliance with orders of supervision. Although he did not provide
specific numbers, 1 field office manager told us that deportation officers
have so many cases that it is difficult for them to assure alien
compliance with orders of supervision. Another manager told us that as of
November 2003, the office had 19 deportation officers responsible for
approximately 131,000 cases of nondetained aliens, including an estimated
1,200 cases of aliens released on orders of supervision.21

All of the 13 deportation officers we spoke with who were responsible for
monitoring aliens' compliance with orders of supervision told us that they

20In our field visits, we interviewed 4 supervisory deportation officers
who were responsible for cases of aliens released on orders of
supervision, 2 of whom were also responsible for post order custody
reviews, and an additional 5 supervisory deportation officers who were
responsible for post order custody reviews.

21Nondetained aliens include those released into the community while still
waiting for determination of their immigration status or removal.

have had difficulty assuring that aliens meet the conditions of their
release. For example, 1 deportation officer told us that the large size of
his caseload and his numerous additional duties, such as jail inspections,
interfered with his ability to monitor released aliens' compliance with
their orders of supervision. Similarly, another deportation officer said
that he is overwhelmed by his caseload and does not know when aliens are
not complying with orders of supervision. He also said that even if he
inadvertently learns that an alien is not in compliance with an order of
supervision, he does not have time to investigate the case and take the
appropriate action.

In one location that we visited, we observed an office area filled with
unopened boxes of files. A deportation officer told us that they were the
case files of aliens released on orders of supervision and that the
deportation officer responsible for those cases had been assigned on a
detail out of the office. The deportation officer noted that supervision
cases continued to be assigned to the detailed officer even in his
absence. He said that no one was monitoring those cases to determine if
the aliens had met the conditions of their release. He further told us
that the detailed officer's cases were not reassigned to another officer
because all the officers were already overwhelmed with their own
caseloads.

Our case file review showed that ICE deportation officers do not always
know whether aliens have complied with their orders of supervision. In our
review of 45 randomly selected cases at the Washington, D.C., field
office, we found that 12 aliens had been released on orders of
supervision. In 4 of the 12 cases, there was no evidence in the file that
the alien had ever reported to an ICE deportation officer; in another 4
cases, there was evidence indicating that the alien reported for some, but
not all, of the required reporting times; and in the remaining 4 cases,
there was evidence indicating that the alien had reported in for all
required reporting times.

DACS data indicate the total number of aliens on orders of supervision
increased during a 7-year period, from about 1,300 in fiscal year 1997 to
about 16,000 in fiscal year 2003.22 ICE officials said that although these
figures from DACS may not be precise, they believe that they are a
reasonable indicator of the growth in supervision cases. 23 However, these

22To provide us with figures on how many aliens were on supervision
orders, ICE tasked a contractor with writing a special computer program to
generate the information.

23ICE could not provide the margin of error for these data.

estimates do not include deportation officers' case management duties for
other nondetained aliens. According to ICE officials, supervision cases
are a small percentage of the total caseload of deportation officers, but
they did not have data indicating what that percentage was. During the
same time period, from fiscal year 1997 through fiscal year 2003, the
number of ICE deportation officers on board increased from 461 to 611.
Although these figures show that ICE's supervision caseload grew at a
faster rate than the workforce assigned to handle the caseload, ICE
officials did not know how many deportation officers would be needed to
handle the caseload. ICE has acknowledged that its detention and removal
program does not have a reliable method for determining what the ratio of
cases to deportation officers should be.24 ICE officials told us that they
had not addressed this issue because they believed it would be costly to
develop a model that would reliably estimate their deportation officer
staffing needs for supervision cases and because of other priorities.

Although deportation officers reportedly have difficulty managing their
caseloads, most of the deportation officers we interviewed said that they
did not prioritize their order of supervision cases to enable them to
focus on the most important ones. Specifically, of the 13 deportation
officers we interviewed who were responsible for handling order of
supervision cases, 9 said that they did not prioritize their order of
supervision cases. Four of the 13 deportation officers said that they did
prioritize or had just begun to prioritize their order of supervision
cases, but each had established different priorities. For example, 1
deportation officer said that he instructed aliens to report to ICE more
frequently if the aliens were from countries that were more likely to
provide travel documents so that he could arrange for removal as soon as
possible. Another deportation officer said that she instructs aliens with
criminal backgrounds to report to ICE more frequently than noncriminal
aliens.

Having uniform guidance for ICE officers is important because some
released aliens can pose a greater threat to society than others. For
example, an alien with a history of violent criminal behavior can
potentially be a greater danger to the community than a criminal alien
without a violent past or an alien with no criminal history. Although the
reportedly large workload of some deportation officers may make it
difficult for them to keep track of all supervision cases assigned to
them, ICE has not provided them with guidance on how to prioritize their

24Office of Detention and Removal Strategic Plan, 2003-2012, ICE, June
2003.

ICE Has Had Some Success Working with the Department of State When Travel
Documents Are Difficult to Obtain

supervision cases. As a result, there exist potential risks associated
with such aliens being released into U.S. communities. Determining how to
mitigate such risks would entail considering factors such as the
significance of the risk and the likelihood or frequency of its
occurrence. Such an approach could help ICE determine how deportation
officers should prioritize their supervision cases when job demands
prevent them from doing a consistent and thorough job of assuring alien
compliance with orders of supervision.

ICE's ability to deport removable aliens is impeded when the aliens'
governments refuse to provide or delay providing travel documents for
them. ICE headquarters and field officials said that difficulties with
obtaining travel documents is the major problem they encounter in
attempting to remove aliens with a final removal order. The difficulty in
obtaining travel documents has a direct impact on the number of aliens who
either remain in detention or are released on orders of supervision.

The process of obtaining travel documents can be complex and
timeconsuming. ICE headquarters and field officials cited a variety of
reasons why governments may not want to issue a travel document for their
nationals, and these reasons may vary for aliens from the same country
depending on the individual alien's circumstances. For example, if aliens
have not lived in their country of origin for a long period of time, their
government may delay issuing the travel document until it has assurance
that the aliens will have the means to support themselves when they are
returned. The government may also want to ensure that it can keep track of
aliens with criminal backgrounds. In its Detention and Removal Strategic
Plan, ICE noted that the political environment in various countries can
also affect their travel document policies.

According to ICE officials, several countries have consistently refused to
issue travel documents or delayed issuing them, thereby limiting ICE's
ability to return aliens to these countries. Specifically, ICE officials
mentioned that they have significant problems obtaining travel documents
from Cuba, Laos, Vietnam, China, India, Jamaica, former Soviet Republics,
Iraq, Iran, Eritrea, Ethiopia, Poland, and Nigeria. Table 1 shows the
numbers of aliens from Laos and Vietnam with removal orders categorized by
the criminality and detention status of the aliens as examples of two
countries where ICE officials reported significant problems obtaining
travel documents.

Table 1: Removable Aliens from Laos and Vietnam Awaiting Travel Documents
as of February 8, 2004

                       Number of detained aliens Number of nondetained aliens 
              Country         with removal order           with removal order 
                 Laos                        101                        2,395 
             Criminal                         96                        1,715 
          Noncriminal                          5                          680 
              Vietnam                        301                        4,467 
             Criminal                        298                        4,243 
          Noncriminal                          3                          224 

Source: ICE DACS data.

Of the 402 aliens from Laos and Vietnam who were in detention as of
February 8, 2004, 97 had been in detention at least 180 days after their
removal orders. 25

According to ICE officials, China and India have a slow process for
verifying the alien's identity. The officials said that Chinese consulates
in the United States need approval from the Chinese central government
prior to issuing any travel documents and that Chinese consulates can vary
in how long it takes them to issue travel documents. ICE officials told us
that Chinese policies and guidelines for issuing travel documents change
frequently and this contributes to delays in issuing travel documents. An
ICE official said that it takes Chinese consulates at least 2 to 3 months
to issue travel documents, but that in most cases it takes longer. With
respect to India, ICE officials said that India has a slow, complex
process for verifying an alien's citizenship. The officials said that
although India has made some changes in its process for issuing travel
documents, the process can still result in wait times that average between
6 and 8 months.

The Departments of Homeland Security and State have signed a formal
agreement to, among other things, foster collaboration with each other in
dealing with foreign governments that refuse to issue or delay issuing
travel documents for their nationals. Specifically, if a foreign country
continues not to cooperate in issuing travel documents for its nationals,
the Secretary of Homeland Security may notify the Secretary of State of
this situation. When notified, the Secretary of State is to order U.S.

25According to the ICE official who provided the data, DACS does not
contain data on whether a removal order was final.

consular officers in the foreign country to discontinue issuing visas
enabling citizens of those countries to come to the United States.26 ICE
and State officials told us that this occurred on only one occasion. On
September 7, 2001, the Attorney General requested that the Secretary of
State impose sanctions on Guyana for refusing or unreasonably delaying
issuing travel documents for its nationals. On October 10, 2001, State
discontinued granting nonimmigrant visas to employees of the government of
Guyana, their spouses, and their children. Within 2 months, the government
of Guyana issued travel documents to 112 of the 113 Guyanese aliens who
had been ordered removed from the United States.27 On December 14, 2001,
State lifted the visa sanction against Guyana.

ICE and State officials said that diplomatic, trade, and financial issues
may weigh against a decision to restrict visas. ICE and State officials
have expressed concern that applying visa sanctions can have a negative
impact on U.S. foreign and economic relations with other countries. ICE
and Department of State officials told us that the informal threat of
sanctions has been successfully used as leverage in negotiating an
agreement with one foreign country to facilitate the removal of its
nationals ordered removed from the United States.

ICE has successfully worked with the Department of State to develop a
formal agreement with one foreign government for obtaining travel
documents for its nationals. Specifically, ICE and State collaborated to
develop a formal agreement with the government of Cambodia. A memorandum
of understanding between the United States and Cambodia, signed on March
22, 2002, laid out plans for establishing and operating a joint commission
on repatriation for certain removable aliens. An addendum to the
agreement, signed on August 27, 2003, allows ICE to compensate Cambodia
$300 per alien for the travel document application, document search,
verification expenses, and in-country relocation travel expenses. The
agreement also allows State to reimburse a Cambodian nongovernmental
organization of the department's choice $650 per alien for expenses
related to the aliens' reintegration into Cambodian society.

26Section 243 (d) of the Immigration and Nationality Act (8 U.S.C. S:
1253(d)) and the memorandum of agreement between DHS and the State
Department prescribe how this action should be taken. Prior to the
creation of the DHS in 2003, the Attorney General had this responsibility.

27One individual had died.

Conclusions

The Cambodian government and the U.S. Embassy are to jointly monitor the
activities of the nongovernmental organization. The work of this
commission resulted in 78 Cambodians being removed from the United States
by January 20, 2004. Although 78 aliens were removed, ICE data indicated
that, as of February 2004, 1,203 Cambodians with removal orders remained
in the United States. Of these, 945 were criminal aliens and 258 were
noncriminal aliens; 109 were in detention and 1,094 were not detained. Of
the 109 Cambodians in detention, 41 had been detained for more than 180
days after the removal order. ICE and State officials said that they have
been working informally to negotiate an agreement with another country.

ICE lacks complete, accurate, and readily available information to help it
assure that custody decisions are made in a timely fashion and the
regulations implementing Zadvydas are adhered to. Currently, ICE does not
know the extent to which aliens may or may not be accorded the right to be
released from detention as the Supreme Court intended. In 3 out of 45
cases, our work raised questions about whether custody review decisions
were consistent with the decision and implementing regulations. Although
ICE intends to deploy a new automated case management system, it has not
developed specific plans that would indicate whether the system will meet
internal control standards required for federal agencies and whether, or
when, deficiencies discussed in this report will be addressed. ICE
deportation officers need readily available, reliable data on aliens who
are due for post order custody reviews to help assure that aliens are not
kept in detention longer than is necessary. Better data would also assist
ICE in effectively managing and overseeing its compliance with the
Zadvydas regulations.

ICE also faces challenges in assuring that aliens released on orders of
supervision have met the conditions of their release. Among other things,
ICE's case management system does not assist deportation officers in
efficiently identifying supervision cases, and a reported shortage of
deportation officers suggests it may be difficult for them to perform all
of their assigned duties. ICE does not know how many cases deportation
officers should manage or how many deportation officers it needs to
consistently monitor all supervision cases. Without accurate and reliable
data to inform its human capital decisions, ICE will not be able to make
informed judgments about its staffing needs for monitoring released
aliens' compliance with orders of supervision. Despite its reported
shortage of deportation officers, ICE has not prioritized the duties or

supervision cases of these officers. Establishing priorities would help
ICE focus on those aliens who require more careful monitoring than others
and potentially help ICE manage the risk of releasing potentially
dangerous aliens into communities.

Recommendations for 	To help assure that ICE's custody reviews are
consistent with the Zadvydas decision and implementing regulations, and to
promote the

Executive Action	effective supervision of released aliens, we recommend
that the Secretary of DHS direct the Assistant Secretary for ICE,
consistent with the department's evolving systems integration strategy, to
take the following three actions:

o  	Ensure that ICE has complete, accurate, and readily available
information on (1) all detained aliens for whom 90- and 180-day post order
custody reviews are due, (2) how many post order custody reviews have been
made pursuant to the Zadvydas regulations and what decisions resulted from
those reviews, (3) which aliens are released on orders of supervision, and
(4) when aliens released on orders of supervision are required to report
to an ICE deportation officer.

o  	Develop a methodology for assessing how many staff are needed to
manage the supervision caseload and other duties assigned to deportation
officers, and use the results to support funding and staffing requests.

o  Develop and disseminate guidance that will enable deportation officers
to

Agency Comments
and Our Evaluation

prioritize ICE's caseload of aliens on orders of supervision so that ICE
can focus limited resources on supervising aliens who may be a threat to
the community or who are not likely to comply with the conditions of their
release.

We provided a draft of this report to the Secretary of DHS and the
Assistant Secretary for ICE for comment. On behalf of DHS, the Assistant
Secretary for ICE provided written comments on a draft of this report that
are reproduced in appendix IV. ICE concurred with all three of our
recommendations and discussed actions it will take to implement them.

In the short term, ICE plans to utilize its existing DACS to maintain
complete, accurate, and readily available information on detainee cases.
This will include additional guidance and training for field offices and a
headquarters review of all Zadvydas cases. In the long term, ICE plans to
develop EREM as a new case management system that incorporates the
information we recommend in this report.

The Assistant Secretary also said that ICE will develop a methodology and
model to assess the number of staff necessary to effectively manage its
alien docket and use the results of this assessment to support funding and
staffing requests, as we recommended. ICE also will review current
guidance and make necessary changes to ensure that deportation officers
are able to prioritize their caseload of aliens released on orders of
supervision. He stressed that ICE seeks to manage and properly supervise
Zadvydas cases and is exploring the use of alternatives to detention to
determine whether they may be applied to these cases.

As arranged with your offices, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its
issue date. At that time, we will send copies of this report to the
Secretary
of the Department of Homeland Security and interested congressional
committees. We will also make copies available to others upon request. In
addition, the report will be available at no charge on GAO's Web site at
http://www.gao.gov. Major contributors to this report are listed in
appendix V.

If you or your staffs have any questions concerning this report, please
contact me on (202) 512-8777.

Richard M. Stana
Director, Homeland Security

and Justice Issues

Appendix I: Objectives, Scope, and Methodology

With reference to how the U.S. Immigration and Customs Enforcement Bureau
(ICE) has implemented the Zadvydas v. Davis decision, this report
addresses the following objectives: (1) What information does ICE have to
assure that custody reviews are timely and result in decisions that are
consistent with the Zadvydas decision and implementing regulations? (2)
How has ICE assured that aliens released on orders of supervision have met
the conditions of their release? (3) When foreign governments refuse or
delay issuing travel documents for the aliens to be removed to their
countries, what efforts has ICE made to overcome these obstacles, and what
are the results of those efforts?

To address the first two objectives, we interviewed officials at ICE
headquarters and its Washington, D.C.; Los Angeles, Calif., Chicago, Ill.,
and New Orleans, La., field offices. We visited these field offices
because they had relatively large numbers of aliens who were detained for
longer than 180 days and they were geographically dispersed. We
interviewed 11 ICE managers of field offices and detention facilities.
Four of these 11 were responsible for post order custody reviews and
supervision cases. Seven of the 11 were responsible only for post order
custody reviews because they were detention facility managers. Also, we
interviewed 9 supervisory deportation officers. Two of the 9 were
responsible for post order custody reviews and supervision cases. Five of
the 9 were responsible for post order custody reviews and 2 were
responsible for supervision cases. We interviewed 28 deportation officers.
Fifteen of the deportation officers were responsible for post order
custody reviews and 13 were responsible for supervision cases. We also
reviewed a randomly selected sample of 45 out of 140 case files of
long-term detainees at ICE's Washington, D.C., field office. Because ICE
officials told us that ICE does not maintain a database of cases that meet
the Zadvydas standard, we asked ICE for a list of aliens with final
removal orders who either (1) were being held in ICE detention for at
least 180 days as of March 3, 2003, when ICE developed the list of cases
or (2) had been held in ICE detention for at least 180 days but were
released from detention or removed from the United States between July 1,
2001, and March 3, 2003. This list would contain the population of cases
that would most likely be cases eligible for post order custody reviews
using the Zadvydas standard. Because the Deportable Alien Control System
(DACS) does not identify whether an order of removal is final or not, the
list consisted of aliens with orders of removal, but not necessarily final
orders of removal. According to an ICE official, the list also did not
include thousands of cases where the date of the order of removal was
missing from DACS because it was not possible to compute the number of
days in detention since the removal order in such cases. Of 5,739 cases
that ICE generated using this criteria, 140 were

Appendix I: Objectives, Scope, and Methodology

listed as being assigned to the Washington, D.C., field office. We
randomly selected 50 cases from the 140 and asked ICE to provide us with
its case files. ICE was unable to provide us the case files of 5 of the 50
cases that we requested because the files could not be located at the time
of our file review. Using a structured data collection instrument (DCI),
we reviewed the remaining 45 case files to determine the timeliness of
post order custody reviews and ICE's efforts to monitor aliens' compliance
with orders of supervision. Some of the questions on our DCI were intended
to check the accuracy of the DACS data used to produce the case list, and
from these questions we determined that these cases were correctly
selected. The information obtained from the case file review may not be
generalized to all long-term detainee cases in ICE's Washington, D.C.,
office or to ICE nationwide. We assessed whether ICE's case management
system met the Comptroller General's standards for internal control for
federal agencies. We also interviewed ICE's Office of Detention and
Removals Acting Chief for Program Analysis and Information Technology
regarding the development of ICE's new case management system. We reviewed
available documentation regarding the implementation of post order custody
reviews at ICE headquarters and its field offices. We also reviewed
available documentation regarding how ICE monitors aliens' compliance with
orders of supervision.

To determine what efforts ICE has made to overcome obstacles when
governments refuse or delay the issuance of travel documents, we reviewed
available documentation, interviewed ICE headquarters and field officials,
and interviewed Department of State officials regarding their coordination
with ICE in obtaining travel documents for removable aliens.

We conducted our review from December 2002 to March 2004 in accordance
with generally accepted government auditing standards.

Appendix II: ICE's Basic Custody Review and Supervision Process for
Long-Term Detainees with Final Orders of Removal

ICE deportation officers are to conduct custody reviews for aliens who
have been in detention for 90 days after the aliens receive a final order
of removal. This initial 90-day detention period is referred to as the
"removal period." Specifically, the post order custody review process
calls for a number of steps to occur:

o  	Aliens are to be served a Notice of Review for the initial post order
custody review approximately 30 days in advance of the pending review.
This notice is to provide instructions to the alien on evidence or
documentation that may be considered during the 90-day post order custody
review. If the alien or his or her representative requests additional time
to prepare materials, then the requirement that the custody review occur
before the end of the 90-day removal period may be waived. The deciding
official may base the post order custody review solely on a file review or
may augment the file review with a telephone, videoconference, or personal
interview.

o  	The initial 90-day post order custody review decision is to be made by
the ICE field office having jurisdiction over the alien.1 At that point,
if a travel document is not available to return the alien to his or her
country, ICE may decide to continue to hold the alien in detention or
release the alien into the community subject to conditions of release.2

o  	When the field office advises the alien at the 90-day post order
custody review that he or she will remain in custody pending removal, ICE
is to conduct a second post order custody review once the alien has served
a total of 180 days in detention.3

Factors that affect the manner in which the alien's days in detention are
calculated include the following:

o  	If the alien has filed a court action and is granted a stay of
removal, then the "deportation clock" stops. That is, the counting of the
days in detention is stopped while the stay of removal is in effect, and,
based on the results of a post order custody review, ICE may continue to
detain the alien until the court decides the alien's case. Once the court
case is

18 C.F.R. S: 241.4(c)(1). 28 C.F.R. S: 241.4(j)(1). 38 C.F.R.S:
241.4(k)(2)(ii).

Appendix II: ICE's Basic Custody Review and Supervision Process for
Long-Term Detainees with Final Orders of Removal

resolved, the removal period starts over again, with the date of the court
decision counting as the first day of detention.4

o  	If the alien fails or refuses to make timely application for travel
documents necessary for his or her departure, or otherwise conspires or
acts to prevent his or her removal, the removal period is suspended until
the alien begins to cooperate in facilitating his or her own removal.5

In December 2000, ICE published a regulation to centralize the custody
review process at ICE headquarters for certain detainees with final
removal orders. Specifically, the regulation called for the District
Directors to conduct the initial custody determination prior to the
expiration of the 90-day removal period. After the 90-day period, at the
discretion of the field offices, an alien's case could be referred to ICE
headquarters or retained in the field. ICE field offices were to refer the
alien's case to headquarters when the alien completed 180 days in
detention following a final order of removal. ICE established a
headquarters Post-Order Detention Unit (HQPDU) to make all future custody
determinations after the referral.

In its June 2001 ruling in Zadvydas v. Davis, the U.S. Supreme Court
concluded that detaining aliens for up to 6 months following a final order
of removal is "presumptively reasonable." Otherwise, except when "special
circumstances" exist, the alien must be released on an order of
supervision. Special circumstances that justify continued detention beyond
180 days occur when (1) the alien has a contagious disease, (2) the alien
is deemed "specially dangerous," for example, having a mental condition
that predisposes him or her to be violent, (3) the alien's release poses
adverse foreign policy consequences, or (4) the alien poses a threat to
national security. The Court also held that the alien may be held in
detention past the 6-month period if the government determines that there
is a significant likelihood of his or her removal in the reasonably
foreseeable future. Aliens may also be kept in detention if they fail to
cooperate with the removal process.

48 U.S.C. S: 1231(a)(1)(B)(ii). 58 U.S.C. S: 1231(a)(1)(C).

 Appendix II: ICE's Basic Custody Review and Supervision Process for Long-Term
                     Detainees with Final Orders of Removal

Factors That Affect Aliens' Release from Detention after the 90-

Day Post Order Custody Review

Factors That Affect Aliens' Release from Detention after the 180-Day Post
Order  o  Custody Review

                                       o

The 90-day post order custody review may result in a decision to further
detain or to release the alien. Factors that would result in a decision to
continue to detain the alien include (1) the alien not complying with
requirements to assist in his or her removal,6 (2) a significant
likelihood of removing the alien in the reasonably foreseeable future,
and/or (3) the alien being considered a threat to the public or a flight
risk if released. When none of these three conditions exists, the alien is
to be released from detention on an order of supervision with required
conditions.

The 180-day post order custody review may result in a decision to further
detain or to release the alien. Aliens fall into either of two categories:
those who do or do not qualify for a post order custody review under the
Zadvydas regulations.

The following categories of aliens do qualify under the Zadvydas
regulations: aliens ordered removed from the United States who either
initially entered legally or those who entered without inspection. If ICE
deportation officers (1) do not expect travel documents for an alien to be
forthcoming in the reasonably foreseeable future and (2) no "special
circumstances" exist, then the alien is to be released from detention even
if he or she is deemed a threat to the community or poses a flight risk.7

The following categories of aliens do not qualify for review under the
Zadvydas regulations: (1) aliens who do not cooperate with ICE in
facilitating the process of obtaining their travel documents; (2) arriving
aliens (e.g., stopped at the border, granted temporary permission to enter

6If an alien refuses to make timely application for travel documents or
conspires or acts to conspire to prevent his or her removal, the alien's
removal period is to be extended, and the alien may remain in detention
during such extended period. A post order custody review is to be done and
a Notice of Failure to Comply is to be served on the alien advising him or
her of the reason for the extension of the removal period and the actions
needed to restart the calculation of the removal period. Aliens are to be
considered for criminal prosecution if they fail to cooperate with the
removal process.

7In all "special circumstances" cases that fall into the category of
"contagious disease" or "specially dangerous," HQPDU is to refer the case
to the Public Health Service for certification of the condition. For an
alien determined to be "specially dangerous" by ICE headquarters, the
decision to detain is to be forwarded to an immigration judge for review.
If the judge rules against ICE, then ICE may appeal the case to the Board
of Immigration Appeals.

 Appendix II: ICE's Basic Custody Review and Supervision Process for Long-Term
                     Detainees with Final Orders of Removal

the United States, or Mariel Cubans8); and (3) aliens who are ordered
removed by the Alien Terrorist Removal Court pursuant to Title 5 of the
Immigration and Nationality Act.9 This group of aliens, with the exception
of Mariel Cubans, is subject to the 90-day post order custody review
criteria-which enable ICE to continue the alien's detention if the alien
is deemed a threat to the community or a flight risk.10 When neither of
these two conditions applies, the alien should be released from detention
on an order of supervision.

Aliens who received a review pursuant to the Zadvydas regulations but were
denied release can request additional post order custody reviews under the
Zadvydas criteria every 6 months.

Orders of Supervision 	All aliens released based on a post order custody
review are to be released on an order of supervision, specifying
conditions the alien is to meet. An order of supervision includes the
following conditions, among others. The alien is

o  	required to appear before an immigration officer periodically for
identification;

o  	required to submit, if necessary, to a medical and psychiatric
examination at the expense of the U.S. government;

o  	to continue efforts to obtain a travel document and assist ICE in
obtaining a travel document;

o  	to obtain advance approval of travel beyond previously specified times
and distances; and

o  	to provide ICE with written notice of any change of address within 10
days of the change.

8"Mariel Cubans" are a group of approximately 129,000 aliens who fled Cuba
by boat in 1980 and attempted to enter the United States without
documentation. Most of these aliens have been in the United States since
that time and, in some instances, paroled into the community. They are not
considered to have legally entered the United States. Custody
determinations for Mariel Cubans are made by Cuban Review Panels under the
procedures in 8 C.F.R. S:212.12.

9The Alien Terrorist Removal Court was established in 1996 by the
Antiterrorism and Effective Death Penalty Act of 1996 (8 U.S.C. S:S:
1531-37).

10Mariel Cubans have their own Review Panel separate from this post order
custody review process.

Appendix II: ICE's Basic Custody Review and Supervision Process for
Long-Term Detainees with Final Orders of Removal

An order of supervision may also include any other conditions that HQPDU
considers necessary to ensure public safety and guarantee the alien's
compliance with the order of removal.

Any alien who has been released on an order of supervision who violates
any of the conditions of release may be returned to custody and may be
subject to a fine of not more than $1,000 or imprisonment for not more
than 1 year, or both.11 In some cases, HQPDU can refer the case to the
appropriate U.S. Attorney for criminal prosecution. The alien may then be
detained for an additional 6 months in order to effect the alien's
removal, if possible.

                             118 U.S.C. S: 1253(b).

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

In Zadvydas v. Davis, the U.S. Supreme Court ruled on one aspect of the
lawfulness of indefinite detention.1 The Court held that Section 241(a)(6)
of the Immigration and Nationality Act, (8 U.S.C. 1231(a)(6)),2 read in
light of due process protections for aliens who have been admitted to the
United States, generally permits the detention of aliens who are under a
final order of removal only for a period reasonably necessary to bring
about their removal from the United States. The Court held that detention
of such aliens beyond the statutory removal period, for up to 6 months
after entry of a final removal order, is "presumptively reasonable." After
6 months, if an alien can provide "good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future,"
the government must rebut the alien's showing to continue the detention.
If the government cannot meet that standard, then in general, the
government must release the alien. Finally, the Supreme Court indicated
that there may be cases involving "special circumstances," such as
terrorists or other especially dangerous individuals in which continued
detention might be appropriate even if removal is unlikely in the
reasonably foreseeable future.

In July 2001, about 3 weeks after the Supreme Court's Zadvydas decision,
the Attorney General issued interim guidance for releasing detainees who
were covered by Zadvydas. According to this guidance, arriving aliens and
aliens ordered removed on an order of exclusion do not fall within the
classes of aliens covered by the decision. For example, aliens seeking

                                Attorney General

Guidance and Regulations

1533 U.S. 678 (2001).

2Section 1231(a)(6) provides that: "An alien ordered removed who is
inadmissible under section 1182 of this title, removable under section
1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title [for violations of
nonimmigrant status or entry conditions, violations of criminal laws, or
threatening national security] or who has been determined by the Attorney
General to be a risk to the community or unlikely to comply with the order
of removal, may be detained beyond the removal period and, if released,
shall be subject to the terms of supervision in paragraph (3)."

Kestutis Zadvydas, a resident alien of the United States, was born
apparently of Lithuanian parents in a displaced persons camp in Germany in
1948. At the age of 8, he immigrated to the United States with his parents
and other family members and has lived here since. He has a long criminal
record, involving drug crimes, attempted robbery, attempted burglary, and
theft. In 1994, he was ordered removed because of a conviction for
possession of cocaine with intent to distribute, a crime under section
1227(a)(2). However, Germany would not accept Zadvydas because he was not
a German citizen and Lithuania refused to accept him because he was
neither a Lithuanian citizen nor a permanent resident of that country. The
government also tried unsuccessfully to remove him to the Dominican
Republic (Zadvydas's wife's country).

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

Judicial Application of Zadvydas Standards

admission, excludable aliens, Mariel Cuban parolees, and other parolees
would not be covered by the Supreme Court's analysis.3 ICE issued interim
regulations in November 2001 amending the custody review process governing
the detention of aliens subject to a final order of removal.4

Many aliens have filed lawsuits demanding relief under Zadvydas from
indefinite detention. A brief discussion of some of the issues that have
been litigated and the courts' rationale for their holdings follows:

In order to be granted relief from post removal order detention pursuant
to Zadvydas, an alien must make a two-part showing. See Fahim v. Ashcroft,
227 F. Supp. 2d 1359, 1362, 1363 (N.D. Ga. 2002), relying on Akinwale v.
Ashcroft, 287 F. 3d 1050 (11th Cir. 2002):

1. 	The alien must first show that he or she has been detained beyond the
6-month period that the U.S. Supreme Court declared to be a presumptively
reasonable time to detain a removable alien awaiting deportation;

2. 	The alien must provide good reason to believe that there is no
likelihood of removal in the reasonably foreseeable future.

Regarding the first point, there has been litigation on the calculation of
the 6-month period. As discussed in the Fahim case cited above, a 6-month
custodial period of time following the order of removal must have elapsed
prior to the filing of a habeas corpus petition challenging the
confinement under Zadvydas. In Fahim, the court concluded that the 6-month
period was tolled5 during the time the alien acted to prevent his removal.
In support of this conclusion, the court cited 8 U.S.C. 1231(a)(1)(C),
which

3Memorandum from Attorney General to the Acting Commissioner, INS, re
Post-Order Custody Review After Zadvydas v. Davis, July 19, 2001.

4Interim Regulations, Continued Detention of Aliens Subject to Final
Orders of Removal, 66 Fed. Reg., 56969 (2001).

5"Tolled" means to suspend or stop temporarily.

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

provides that the "removal period shall be extended...if the alien...acts
to prevent the alien's removal subject to an order of removal."6

There has also been litigation on whether the decision rendered by the
Immigration judge was a final order. For instance, in Habtegaber v.
Jenifer, 256 F. Supp. 2d 692 (E.D. Mich. 2003), the court concluded that
the alien's order of removal became final on the date that the immigration
judge determined that the alien was removable and issued the removal
order. Thus, the presumptively reasonable 6-month period for the alien's
detention following the removal order commenced on that date, rather than
on the date that the alien withdrew his appeal of the removal order to the
Board of Immigration Appeals.

Regarding the second point, courts have held that an alien must provide
good reason to believe there is no likelihood of removal in the reasonably
foreseeable future. In making this determination, courts have taken into
account the amount of time the alien has been in custody, the actions of
the foreign government in responding to requests for travel documents, and
the actions of the government. Also, where appropriate, the courts have
taken into account whether the petitioner has cooperated in seeking to
obtain the requisite travel documents.

In Kacanic v. Elwood, 2002 WL 31520362 (E.D. Pa. Nov. 8, 2002), the
federal district court found that the alien had shown good reason to

6The district court explained the pertinent dates as follows: on Feb. 27,
2001 the Board of Immigration Appeals dismissed the alien's appeal, which
the alien construes as the date that his removal order became final. The
alien filed the present petition on February 6, 2002, which is almost a
year after the order of removal became final. Typically, one would count 6
months from the date of this final order of removal to reach the date on
which detention would no longer be presumptively reasonable. With such a
calculation, the alien contends that he was in custody for 1 year prior to
filing his petition. However, the alien filed a petition for review of the
order of removal with the Eleventh Circuit on March 27, 2001. It was
dismissed on January 9, 2002. The court concluded that only a 1-month
period of detention had elapsed-from January 2, 2002 to February 6,
2002-when the alien filed the current petition.

The court noted that the alien might well argue that even though his
6-month period of detention had not run when he first filed his habeas
petition with this court in February 2002, it has certainly run by the
present time, almost 8 months later. However, the district court noted
that the 6-month period of time must have expired at the time the habeas
petition was filed in order to state a Zadvydas claim. Citing Akinwale,
the court explained that an alien who is attempting to avoid deportation
should not properly be able to count the time spent litigating that
attempt as part of the detention period spent waiting for actual physical
removal to his native country. 227 F. Supp. 2d at 1363-1365.

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

believe that he would not be removed in the reasonably foreseeable future.
In reaching this conclusion, the court relied on the amount of time that
the alien had already spent in custody, the inaction of the Yugoslavian
Embassy, and the admissions of the government. At the time of the
litigation, the alien had spent 1 year in detention awaiting his removal.
The court also found that for 10 months, the foreign consulate had been in
possession of all the information the government was capable of providing.
The court pointed out that during this time the consulate never stated
that the alien was likely to be granted travel documents. Nor had the
consulate even been able to tell the government when a decision would be
reached and never offered any reason why obtaining travel documents in
this case took longer than normal. The court concluded that considering
this lack of any definitive answer, or any indication that a definitive
answer was likely soon, there was no legitimate reason to believe that
removal would occur in the reasonably foreseeable future.7 The court also
concluded that the government failed to present competent evidence to
rebut the alien's showing that there was no significant likelihood that
removal would occur in the reasonably foreseeable future. "[O]ther aliens
having been removed to Yugoslavia in the past is not a credible indication
[as the government argued] that this alien will be removed in the near
future." The court concluded, "[i]t simply does not follow from the fact
that Yugoslavia has not said "no" that they must be ready to say "yes"
within the foreseeable future." The court noted several delays in
government efforts to remove the alien activity and concluded that the
lack of effort "only reinforces this Court's conclusion that removal in
the near future does not seem likely." 2002 WL 31520362 at *3-5.

Another district court reached the opposite conclusion in Lema v. INS, 214
F. Supp. 2d 1116 (W.D. Wash. 2002). In Lema, the court determined that in
this particular instance, the continuing failure of a destination country
to respond to a request for travel documents did not provide the court
with "good reason to believe" that deportation is not likely in the
reasonably foreseeable future. The court reasoned that the government and
the alien, working together, should be able to convince the government of
Ethiopia that the alien is in fact, a native of that country. More
specifically, the court provided that the "[p]etitioner [the alien] has
provided no reason to believe that, once Ethiopia's legitimate concerns
are

7See also Mohamed v. Ashcroft, 2002 U.S. Dist. LEXIS 16179 (W.D. Wash.
April 15, 2002) and Okwilagwe v. INS, 2002 U.S. Dist. LEXIS 3596 (N.D.
Texas March 2, 2002). The courts in these cases also found that the lack
of a definite answer from the foreign consulate indicated that no removal
was likely in the reasonably foreseeable future.

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

addressed, travel documents will not issue in the foreseeable future. Of
course, overcoming the Ethiopian government's current misunderstanding
(which has undoubtedly been memorialized in various reports and decision
documents) may take some time and effort, but petitioner's [the alien's]
deportation remains reasonably foreseeable even though it may not happen
quickly." Lema, 214 F. Supp. 2d at 1118.

Judicial Action Regarding the Expansion of the Zadvydas Holding

There have been lawsuits petitioning courts to extend the Zadvydas holding
to cover inadmissible aliens stopped at the border while attempting to
enter.8 Recent decisions in the U. S. Courts of Appeals for the Ninth9 and
Sixth Circuits10 have applied the Supreme Court's analysis in Zadvydas to
these aliens.

The government's position has been that the Zadvydas holding is limited to
those aliens who had been "admitted" or gained "entry" into the United
States. It interprets the Supreme Court's ruling as not governing those
aliens who are legally still at our borders as arriving aliens. This would
include those who have been paroled into the country such as the Mariel
Cubans, who are treated as still seeking admission.11

8The category of inadmissible aliens includes arriving aliens and any
alien ordered removed under an order of exclusion. For example, this
includes aliens seeking admission, excludable aliens [aliens barred from
entry under 8 U.S.C. S:1182(a)], Mariel Cuban parolees and other parolees.
Memorandum from Michael A. Pearson, Executive Associate Commissioner,
Office of Field Operations, to Regional Directors, Interim
Guidance-Zadvydas v. Davis, July 19, 2001.

9Xi v. INS, 298 F.3d 832 (9th Cir. 2002).

10Rosales-Garcia v. Holland, 322 F. 3d 386 (6th Cir. 2003), petition for a
writ of certiorari denied, 71 U.S.L.W. 3789 (U.S. June 23, 2003) (No.
02-1464). (A writ of certiorari is a petition to the Supreme Court to hear
an appeal of a case.)

11Cuban nationals who attempted to enter the United States without
documentation permitting them legal entry, as part of the 1980 Mariel
boatlift, have been physically present in the United States since that
time and in some instances paroled into the community. However, they are
legally considered to be detained at the border and hence as never having
effected entry into the United States.

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

The U.S. Courts of Appeals for the Third, Fifth, Seventh, Eighth, and
Eleventh Circuits have issued decisions that agree with the government's
interpretation of Zadvydas.12

The U.S. Courts of Appeals in the Ninth and Sixth Circuits, however, have
taken a different view. In Rosales-Garcia, the Court of Appeals for the
Sixth Circuit acknowledged that the aliens it was dealing with were
inadmissible, unlike the aliens in Zadvydas who were removable.
Nonetheless, the court concluded that the holding in Zadvydas extended to
inadmissible aliens because the Supreme Court interpretation of section
1231(a)(6) made no distinction among the categories of aliens listed. That
is, the holding addresses the statute as a whole and thus applies to not
just removable aliens-but to all the categories of aliens listed in
section

12Sierra v. Romaine, 347 F. 3d 559 (3d Cir. 2003); Rios v INS, 324 F. 3d
296 (5th Cir. 2003); Hoyte-Mesa v. Ashcroft, 272 F. 3d 989 (7th Cir.
2001); Borrero v. Aljets, 325 F. 3d 1003 (8th Cir. 2003); and Benitez v.
Wallis, 337 F. 3d 1289 (11th Cir. 2003). The aliens in all of these cases
were Mariel Cubans who, as such, had never been granted admission to the
United States. The Courts of Appeals held that the presumptive 6-month
limit to the post-removal period of detention set forth in Zadvydas did
not apply to nonadmitted aliens. The cases concluded that the Zadvydas
decision did not affect the government's long-standing authority to detain
nonadmitted aliens.

On October 14, 2003, the petitioner Benetiz filed a petition to the U.S.
Supreme Court for a writ of certiorari. On January 16, 2004, the Supreme
Court granted the petition. 2004 U.S.L.W. 67860 (U.S. Jan. 16, 2004) (No.
03-7434). The case will be argued before the Supreme Court in April 2004,
with a ruling to be issued before July 1, 2004.

Appendix III: Description of the Supreme Court's Zadvydas v. Davis
Decision

1231(a)(6). Therefore, in Rosales-Garcia, the U.S. Court of Appeals for
the Sixth Circuit concluded that the implicit reasonable time limitation
applies

13

to aliens who are inadmissible under section 1182.

13The U.S. Court of Appeals for the Ninth Circuit reached this same
conclusion in Xi v. INS, 298 F. 3d 832 (9th Cir. 2002). The court
concluded that the holding of Zadvydas applies to aliens deemed
inadmissible. Xi was a citizen of China. The U.S. Coast Guard apprehended
Xi off the coast of Guam on a boat that was being used to smuggle aliens
in violation of U.S. immigration laws.

                         Appendix IV: Comments from the
                        Department of Homeland Security

Appendix IV: Comments from the Department of Homeland Security

Appendix V: GAO Contacts and Acknowledgments

GAO Contacts Acknowledgments

(440174)

         Richard M. Stana (202) 512-8777 Evi L. Rezmovic (202) 512-8777

In addition to the above, David Alexander, Shawn Arbogast, Leo Barbour,
Grace Coleman, Ann Finley, Mark Macauley, Jan Montgomery, Sam Van Wagner,
and Keith Wandtke made key contributions to this report.

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