Combating Alien Smuggling: Opportunities Exist to Improve the
Federal Response (27-MAY-05, GAO-05-305).
Globally, alien smuggling generates billions of dollars in
illicit revenues annually and poses a threat to the nation's
security. Creation of the Department of Homeland Security (DHS)
in March 2003 has provided an opportunity to use financial
investigative techniques to combat alien smugglers by targeting
and seizing their monetary assets. For instance, the composition
of DHS's largest investigative component--U.S. Immigration and
Customs Enforcement (ICE)--includes the legacy Customs Service,
which has extensive experience with money laundering and other
financial crimes. Another DHS component, U.S. Customs and Border
Protection (CBP) has primary responsibility for interdictions
between ports of entry. In summer 2003, ICE announced that it was
developing a national strategy for combating alien smuggling.
Among other objectives, GAO determined the implementation status
of the strategy and investigative results in terms of convictions
and seized assets.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-05-305
ACCNO: A25320
TITLE: Combating Alien Smuggling: Opportunities Exist to Improve
the Federal Response
DATE: 05/27/2005
SUBJECT: Aliens
Border control
Border security
Crimes
Illegal aliens
Interagency relations
Money laundering
Smuggling
Strategic planning
Search and seizure
Investigations by federal agencies
Law enforcement
Homeland security
Intergovernmental relations
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GAO-05-305
United States Government Accountability Office
GAO Report to the Chairman, Subcommittee on Immigration, Border Security, and
Claims, Committee on the Judiciary, House of Representatives
May 2005
COMBATING ALIEN SMUGGLING
Opportunities Exist to Improve the Federal Response
GAO-05-305
[IMG]
May 2005
COMBATING ALIEN SMUGGLING
Opportunities Exist to Improve the Federal Response
What GAO Found
As of April 2005, ICE had not finalized its strategy for combating alien
smuggling. ICE was adjusting the draft strategy to focus on the southwest
border and encompass all aspects of smuggling, aliens as well as drugs and
other contraband. In adjusting the strategy, ICE officials stressed the
importance of incorporating lessons learned from ongoing follow-the-money
approaches such as Operation ICE Storm, a multi-agency task force launched
in October 2003 to crack down on migrant smuggling and related violence in
Arizona. Also, the strategy's effectiveness depends partly on having
clearly defined roles and responsibilities for ICE and CBP, two DHS
components that have complementary antismuggling missions. In this regard,
ICE and CBP signed a memorandum of understanding in November 2004 to
address their respective roles and responsibilities, including provisions
for sharing information and intelligence. Currently, however, there is no
mechanism in place for tracking the number and the results of referrals
made by CBP to ICE for investigation. CBP and ICE officials acknowledged
that establishing a tracking mechanism could have benefits for both DHS
components. Such a mechanism would help ICE ensure that appropriate action
is taken on the referrals. Also, CBP could continue to pursue certain
leads if ICE-for lack of available resources or other reasons-cannot take
action on the referrals.
In fiscal year 2004, about 2,400 criminal defendants were convicted in
federal district courts under the primary alien-smuggling statute, and ICE
reported seizures totaling $7.3 million from its alien-smuggling
investigations. For the first 6 months of fiscal year 2005, ICE reported
$7.8 million in seizures from alien-smuggling investigations. A concern
raised by ICE and the Department of Justice is the lack of adequate
statutory civil forfeiture authority for seizing real property, such as
"stash" houses where smugglers hide aliens while awaiting payment and
travel arrangements to final destinations throughout the nation. However,
Justice does not have a legislative proposal on this subject pending
before Congress because the department's legislative policy resources have
been focused on other priorities.
Aliens Held in "Stash" House in Southern California United States Government
Accountability Office
Contents
Letter
Results in Brief
Background
ICE's Strategy for Combating Alien Smuggling Not Yet Issued
Prosecutions and Convictions Pursued in Alien-Smuggling Cases;
Asset Seizures Expected to Increase
Conclusions
Recommendations for Executive Action
Agency Comments and Our Evaluation
1
3 5 7
15 30 31 31
Appendix I Objectives, Scope, and Methodology 33
Objectives 33
Scope and Methodology 33
Data Reliability 37
Appendix II Creation of the Department of Homeland Security Has
Provided New Opportunities for Combating Alien
Smuggling 38
Seminal Case Cited as New Model for Fighting Alien Smuggling 38
Operation ICE Storm Launched in Phoenix: A Focus on Targeting
the Monetary Assets of Smuggling Organizations 39
Arizona Border Control Initiative Launched in March 2004 41
Expansion of Strategy Beyond Arizona 42
Appendix III Federal Agencies Responsible for Combating Alien
Smuggling 44
Department of Homeland Security and Its Components 45
Department of Justice and Its Components 47
Department of the Treasury and Its Components 52
Department of State and Its Components 55
Migrant Smuggling and Trafficking Interagency Working Group: An
Overarching Coordination Mechanism 57
Human Smuggling and Trafficking Center: Operational Potential
Not Yet Fully Achieved 59
Appendix IV Federal Efforts to Work with Foreign Governments to Reduce the
Flow of Smuggled Aliens into the United States 63
Federal Bilateral Efforts to Work with Foreign Governments 63 Multilateral
Protocol on Migrant Smuggling 67 Federal Efforts to Identify and Seize
Smugglers' Funds or Assets
Abroad 68
Appendix V Examples of Alien-Smuggling Cases Prosecuted in
Federal District Courts 71
District of Arizona 71
California, Southern District 74
Texas, Southern District 76
Appendix VI Possible Effects of Not Having a Civil Forfeiture
Provision for Real Property Used to Facilitate Alien
Smuggling 84
District of Arizona 84
Central District of California 85
Southern District of Texas 85
Appendix VII Comments from the Department of Homeland
Security
Tables
Table 1: Number of Defendants Convicted (under 8 U.S.C. S: 1324) in
Federal Courts for Smuggling Unlawful Aliens, Fiscal Years 1995 through
2004 16
Table 2: Amount of ICE Seizures from Alien-Smuggling Investigations,
Fiscal Year 2004 20 Table 3: Amount of ICE Seizures from Alien-Smuggling
Investigations (Oct. 1, 2004, to Mar. 31, 2005) 23 Table 4: National
Overview of ICE Investigative Hours Worked by Program, Fiscal Year 2004 24
Table 5: Federal, State, and Local Composition of Operation ICE Storm
(Arizona) 39
Table 6: Federal Departments and Components Responsible for Combating
Alien Smuggling 45 Table 7: Analytical Support Provided by FinCEN for
Alien-Smuggling Cases (Oct. 2000 through Aug. 2004) 54
Table 8: District of Arizona Alien-Smuggling Cases Reported by U.S.
Attorney's Office Press Releases (January to June 2004)72
Table 9: Southern District of California Alien-Smuggling Cases Reported by
U.S. Attorney's Office Press Releases (January to June 2004) 75
Table 10: Southern District of Texas Alien-Smuggling Cases Reported by
U.S. Attorney's Office Press Releases (January to June 2004) 77
Abbreviations
CAFRA Civil Asset Forfeiture Reform Act of 2000
CBP Customs and Border Protection
DHS Department of Homeland Security
FBI Federal Bureau of Investigation
FinCEN Financial Crimes Enforcement Network
ICE Immigration and Customs Enforcement
INS Immigration and Naturalization Service
IRS-CI Internal Revenue Service-Criminal Investigation
MLAT Mutual Legal Assistance Treaty
This is a work of the U.S. government and is not subject to copyright
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separately.
United States Government Accountability Office Washington, DC 20548
May 27, 2005
The Honorable John N. Hostettler
Chairman
Subcommittee on Immigration, Border Security, and Claims
Committee on the Judiciary
House of Representatives
Dear Mr. Chairman:
Globally, alien smuggling generates illicit revenues estimated to total
billions of dollars annually and is recognized as a significant and
growing
problem that can pose a serious threat to the security of the United
States,
a primary destination country. Our May 2000 report noted that although it
is likely that most aliens smuggled into the United States seek economic
opportunities, some are brought into the United States as part of criminal
or terrorist enterprises.1 This concern has heightened since September 11,
2001. Creation of the Department of Homeland Security (DHS) in March
2003 has provided new opportunities to more effectively combat alien
smuggling, particularly in reference to using financial investigative
techniques to target and seize the monetary assets of smuggling
organizations. For instance, the department's largest investigative
component-U.S. Immigration and Customs Enforcement (ICE)-
integrates the legal authorities and investigative tools of the legacy
Immigration and Naturalization Service (INS) and the Customs Service,
which has extensive experience in combating money laundering and other
financial crimes.
Accordingly, at congressional hearings in June and July 2003, ICE
officials
testified that ICE was developing a national strategy to dismantle
criminal
and terrorist organizations that smuggle or traffic in people by tracing
and
stripping away their monetary assets. This report addresses the following
principal questions:
o What is the implementation status of ICE's strategy for combating
alien smuggling, particularly regarding efforts to use financial
investigative
1GAO, Alien Smuggling: Management and Operational Improvements Needed to
Address Growing Problem, GAO/GGD-00-103 (Washington, D.C.: May 1, 2000).
techniques to follow the money trail and seize the monetary assets of
smuggling organizations?
o Since the creation of DHS and ICE, what results have been achieved
from alien-smuggling investigations in terms of prosecutions and
convictions, as well as seizures of smugglers' monetary assets?
Also, to provide supplementary and contextual perspectives on the federal
response to alien smuggling, appendix III of this report presents an
overview of the roles of various federal agencies-DHS components such as
ICE and U.S. Customs and Border Protection (CBP), as well as components of
the Departments of Justice, the Treasury, and State; and appendix IV
discusses federal efforts to work with the governments of source and
transit countries to reduce the flow of smuggled aliens into the United
States.
To address these questions and topics, we interviewed responsible
officials at and reviewed relevant documentation obtained from the
Departments of Homeland Security, Justice, the Treasury, and State and
their components. Regarding ICE's strategy for combating alien smuggling,
we interviewed ICE officials to determine its implementation status and
the extent to which it includes a focus on following the money trail.
Regarding prosecutions and convictions in alien-smuggling cases, we
obtained relevant statistics from the Executive Office for U.S. Attorneys.
Regarding seizures of monetary assets, we obtained data from the federal
government's applicable asset forfeiture funds. We discussed the sources
of these data with federal agency officials and worked with them to
resolve any inconsistencies. We determined that the data were sufficiently
reliable for the purposes of this review. Also, to more fully understand
and illustrate the results of alien-smuggling investigations, we
identified and summarized recent alien-smuggling cases prosecuted in
federal district courts in three districts-the District of Arizona, the
Southern District of California, and the Southern District of Texas-each
of which is coterminous with the U.S.-Mexico, or southwest, border (see
app. V).2 To identify recent alien-smuggling cases federally prosecuted in
these districts, we reviewed press releases issued by the respective U.S.
Attorney's Office during January through June 2004. We discussed each of
2Mexico represented 91 percent of deportable aliens (by region or country
of nationality) who entered the United States without inspection and were
apprehended in fiscal year 2003, according to DHS's 2003 Yearbook of
Immigration Statistics (Washington, D.C.: Sept. 2004).
Results in Brief
these cases with U.S. Attorney's Office and ICE officials. Because these
cases were selected using a nonprobabilistic method, they are not
representative of all cases in the districts or nationwide. We conducted
our work from April 2004 to March 2005 in accordance with generally
accepted government auditing standards. Appendix I presents more details
about our objectives, scope, and methodology.
Although its development was announced as early as June 2003, ICE's
national strategy for combating alien smuggling had not been finalized as
of April 2005. In the absence of a national strategy, ICE used various
means to provide interim guidance to investigators. ICE officials said the
draft strategy was being adjusted to broadly cover all aspects of
smuggling, encompassing aliens as well as drugs and other illegal
contraband, and to focus initially on the southwest border. Officials
stressed the importance of incorporating lessons learned from ongoing
follow-the-money approaches before issuing the strategy. An example of
such an approach is Operation ICE Storm, a multi-agency task force
launched in October 2003 to crack down on migrant smuggling and related
violence in Arizona. Another reason for the strategy's continuing
development period is that the working relationship of ICE and CBP is
still evolving. The strategy's effectiveness depends partly on having
clearly defined roles and responsibilities for these two DHS components,
which have complementary antismuggling missions. In this regard, ICE and
CBP signed a memorandum of understanding in November 2004 to address their
respective roles and responsibilities, including provisions for sharing
information and intelligence. Currently, however, there is no mechanism in
place for tracking the number and the results of referrals or leads made
by CBP to ICE for investigation. Without such a mechanism, there may be
missed opportunities for identifying and developing cases on large or
significant alien-smuggling organizations. CBP and ICE officials
acknowledged that establishing a tracking mechanism could have benefits
for both agencies. Such a mechanism would help ICE ensure that appropriate
action is taken on the referrals. Also, CBP could continue to pursue
certain leads if ICE-for lack of available resources or other
reasons-cannot take action on the referrals. This report recommends that
the Secretary of Homeland Security establish a referral-tracking
mechanism. DHS agreed with our recommendation.
In fiscal year 2004, about 2,400 criminal defendants were convicted in
federal district courts under section 274 of the Immigration and
Nationality Act, the primary statute for prosecuting alien smuggling.3
Further, for fiscal year 2004, ICE reported seizures totaling $7.3 million
from its alien-smuggling investigations-plus an additional $5.3 million
generated by the state of Arizona under Operation ICE Storm. ICE officials
anticipate increased seizures from alien-smuggling investigations in
future years, as ICE more broadly applies its financial and
money-laundering expertise. For the first 6 months of fiscal year 2005,
for instance, ICE officials reported seizures of $7.8 million. The
officials cautioned, however, that there are competing demands for
investigative resources and also noted that alien-smuggling cases, in
contrast to drug-trafficking cases, are much less likely to result in
large seizures of currency. But, even absent seizures of money or other
assets from alien smugglers, ICE officials noted the importance of
applying financial investigative expertise in appropriate cases to
determine the scope and operational patterns of alien-smuggling
organizations, identify the principals, and obtain evidence to build
prosecutable cases. Regarding potential forfeitures in aliensmuggling
cases, ICE and Department of Justice officials said that a concern for
investigators is lack of adequate statutory civil forfeiture authority for
seizing real property, such as "stash" houses, used to facilitate the
smuggling of aliens. According to Justice, analysis of civil and criminal
forfeiture statutes generally has led the department to conclude that a
statute that provides only for criminal and not civil forfeiture of
facilitating property will be inadequate in such cases, and investigative
experience indicates that these cases are numerous. Justice officials
noted, however, that the department has not developed and submitted to
Congress a legislative proposal because the department's legislative
policy resources have been focused on other priorities. This report
recommends that the Attorney General, in collaboration with the Secretary
of Homeland Security, consider developing and submitting to Congress a
legislative proposal, with appropriate justification, for amending the
civil forfeiture authority for alien smuggling. The Department of Justice
agreed with our recommendation.
3Also, according to the Department of Justice, alien-smuggling-related
activity may have been prosecuted under a variety of other federal
criminal statutes covering, for example, passport fraud, immigration
document fraud, bribery of a public official, and racketeering activity.
Background
By definition, alien smuggling (sometimes called people smuggling or human
smuggling) is transnational in that it involves more than one country and
also usually involves persons who have consented to be transported to
another country. This activity generally produces shortterm profits for
the smugglers. That is, after the aliens reach their final destinations,
they have no continuing relationship with the smugglers. In legal and
diplomatic references, alien smuggling is distinct from human trafficking,
although both smuggling and trafficking may have similarities or common
elements. In human trafficking, the criminality and human rights
abuses-such as coercion for prostitution, labor sweat shops, or other
exploitative purposes and servitude arrangements-may continue after the
migrants reach the United States in order to produce both shortterm and
long-term profits. Whereas a trafficked person is a victim, an alien who
consents to be smuggled is subject to criminal processing and deportation.
Given the underground nature of alien smuggling, exact figures quantifying
the size or scope of this transnational crime are not available.
Nonetheless, estimates by the United Nations and the federal law
enforcement and intelligence communities indicate that people smuggling is
a huge and highly profitable business worldwide, involving billions of
dollars annually, and the United States is a major destination country.
People smuggling is a continuously growing phenomenon, according to the
International Criminal Police Organization (Interpol). The types of
smugglers can range from opportunistic business owners who seek cheap
labor to well-organized criminal groups that engage in alien smuggling,
drug trafficking, and other illegal activities. Partly because of
increased border monitoring by governments, Interpol has noted that
criminal networks increasingly control the transnational flow of migrants.
That is, willing illegal migrants increasingly rely on the services of
criminal syndicates that specialize in people smuggling, even though
traveling conditions may be inhumane and unsafe.
Alien smuggling generally is prosecuted under section 274 of the
Immigration and Nationality Act, which prohibits knowingly or recklessly
bringing in, transporting, or harboring certain aliens.4 Depending on the
conduct charged, a conviction under section 274 could result in a
4See 8 U.S.C. S: 1324. Also, as mentioned previously,
alien-smuggling-related activity may be prosecuted under a variety of
other federal criminal statutes covering, for example, passport fraud,
immigration document fraud, bribery of public officials, and racketeering
activity.
maximum penalty of 10 years' imprisonment per alien smuggled. Moreover,
significant enhanced penalties are provided for some section 274
violations that involve serious bodily injury or placing life in jeopardy.
If certain violations result in the death of any person, the convicted
defendant may be punished by imprisonment for any term of years or be
subjected to a death sentence.5 Other federal criminal statutes may also
be applicable. Specifically, alien-smuggling-related offenses are among
the list of Racketeer Influenced and Corrupt Organizations predicate
offenses (18 U.S.C. S: 1961(1)) and also are included within the
definition of specified unlawful activity for purposes of the
money-laundering statute (18 U.S.C. S: 1956). Further, criminal and civil
forfeiture statutes may apply to aliensmuggling cases.
Although ICE is a primary DHS component for investigating alien smuggling,
combating the smuggling of aliens into the United States can involve
numerous federal agencies, as well as the cooperation and assistance of
foreign governments. In addition to ICE, other relevant DHS components are
the Border Patrol (a "front-line defender"), which is now part of CBP, and
the U.S. Coast Guard, which is tasked with enforcing immigration law at
sea. Additionally, significant roles in combating alien smuggling are
carried out by Department of Justice components, including the Criminal
Division, the Federal Bureau of Investigation (FBI), and U.S. Attorney's
Offices, and Department of the Treasury components, such as Internal
Revenue Service (Criminal Investigation) and the Financial Crimes
Enforcement Network (FinCEN). Further, Department of State components have
significant roles. For instance, the Bureau of Diplomatic Security-the law
enforcement arm of the State Department-is statutorily responsible for
protecting the integrity of U.S. travel documents. Perhaps the most
coveted and sought after travel documents
5There are various differences in penalty provisions applicable to alien
smuggling, including the following:
o There are mandatory minimum penalties for certain violations of 8
U.S.C. S: 1324(a)(2) but not for similar violations of 8 U.S.C. S:
1324(a)(1)(A).
o Enhanced penalties for causing serious bodily injury or placing life
in jeopardy apply to violations of 8 U.S.C. S: 1324(a)(1)(A) but not to
similar violations of 8 U.S.C. S: 1324(a)(2).
o The death penalty or imprisonment for life may be imposed for
violations of 8 U.S.C. S: 1324(a)(1)(A) in which death results, but such
penalties are not available for similar violations of 8 U.S.C. S:
1324(a)(2).
ICE's Strategy for Combating Alien Smuggling Not Yet Issued
in the world are U.S. passports and visas. Alien smuggling and travel
document fraud often are inextricably linked.
The March 2003 creation of DHS, including its largest investigative
component (ICE), ushered in an opportunity for developing a strategy to
combat alien smuggling by, among other means, using financial
investigative techniques. Two months later, in May 2003, ICE used such
techniques to follow the money and prosecute the perpetrators of a
smuggling operation that had resulted in the deaths of 19 aliens in
Victoria, Texas. The Victoria 19 case has been cited by ICE as
representing a new model for fighting alien smuggling-a model that ICE (1)
subsequently used to launch a multi-agency task force (Operation ICE
Storm) in the Phoenix (Arizona) metropolitan area and (2) reportedly was
using to develop ICE's national "Antismuggling/Human-Trafficking
Strategy."6
Although its development was announced as early as June 2003, a national
strategy for combating alien smuggling had not been finalized and
implemented by ICE as of April 2005. In the absence of a national strategy
to combat alien smuggling, including investigating the money trail, ICE
used various means to provide interim guidance to investigators. ICE
officials indicated that the draft strategy was being adjusted to broadly
cover all aspects of smuggling-encompassing aliens, as well as drugs and
other illegal contraband-and to focus initially on the southwest border.
The strategy's continuing development period is attributable partly to
organizational and training needs associated with integrating the separate
and distinct investigative functions of the legacy INS and the U.S.
Customs Service, following creation of DHS in March 2003. Also, ICE and
CBP- two DHS components with complementary antismuggling missions- signed
a memorandum of understanding in November 2004 to address their respective
roles and responsibilities, including provisions to ensure proper and
timely sharing of information and intelligence. Such sharing is critical
to achieving ICE's investigative objective of determining "how each single
violation ties into the larger mosaic of systemic vulnerabilities and
organized crime." The ability to make such determinations should be
enhanced when DHS components have compatible or interoperable information
technology systems-which is a long-term goal of an ongoing,
6See appendix II for additional background information about the Victoria
19 case and Operation ICE Storm, which was subsequently expanded statewide
as part of the Arizona Border Control Initiative.
multiyear project called the Consolidated Enforcement Environment.
Currently, however, there is no mechanism in place for tracking the number
and the results of referrals or leads made by CBP to ICE for
investigation, including even whether ICE declined to act on the
referrals. Without such a mechanism, there may be missed opportunities for
identifying and developing cases on large or significant alien-smuggling
organizations. For instance, if a tracking mechanism were in place, CBP
could continue pursuing certain leads if ICE-for lack of available
resources or other reasons-does not take action on the referrals.
National Strategy Announced as Early as June 2003 Is Still in Draft and Has
Changed to Focus on the Southwest Border
At congressional hearings in June and July 2003, ICE officials testified
that ICE was developing a strategy-the Antismuggling/Human-Trafficking
Strategy-to address alien smuggling and human trafficking at the national
and international levels. The strategy was to concentrate ICE's efforts in
intelligence-driven investigations against major violators, specifically
targeting organizations with ties to countries that support terrorist
organizations such as al Qaeda.7 A strategic goal was to dismantle the
criminal and terrorist organizations that smuggle or traffic in people by
tracing and stripping away their monetary assets.
In May 2004, in response to our initial inquiry, ICE headquarters
officials told us that the national Antismuggling/Human-Trafficking
Strategy was still in draft and was being vetted among DHS components. In
October 2004, the officials told us that ICE was narrowing the initial
focus of the strategy to the southwest border, between the United States
and Mexico- the most active area in terms of smuggling activity and open
investigations. The officials explained that ICE was developing a
comprehensive southwest border strategy, given the anticipated
displacement of smuggling activity to other areas along the border
resulting from Operation ICE Storm and the Arizona Border Control
Initiative (see app. II). In further elaboration, ICE headquarters
officials said that the southwest border strategy would broadly cover all
aspects of smuggling to encompass aliens as well as drugs and other
illegal
7Statement of Tom Homan, ICE Interim Resident Agent-In-Charge (San
Antonio, Tex.); at a hearing ("Deadly Consequences of Illegal Alien
Smuggling") before the Subcommittee on Immigration, Border Security, and
Claims, House Committee on the Judiciary; June 24, 2003; and statement of
Charles H. Demore, ICE Interim Assistant Director of Investigations; at a
hearing ("Alien Smuggling/Human Trafficking: Sending a Meaningful Message
of Deterrence") before the Subcommittee on Crime, Corrections and Victims'
Rights, Senate Committee on the Judiciary, July 25, 2003.
contraband. The officials explained that lessons learned-based, for
example, on the results of Operation ICE Storm and the Arizona Border
Control Initiative-indicated that criminal enterprises tend to smuggle not
only people but also drugs, weapons, counterfeit trade goods, and other
illegal contraband. The ICE officials emphasized that it was important to
incorporate these lessons learned into the southwest border strategy
before issuing it. Also, the officials noted that irrespective of whether
smuggling involves aliens or contraband, ICE can use similar investigative
techniques for following the money trail.
In April 2005, ICE officials told us that the draft southwest border
strategy was in the final stages of review; had been vetted with CBP,
which is ICE's closest partner in the antismuggling arena; and was
expected to be implemented within the next 30 to 60 days. Moreover, the
officials said that, following a certain period of implementation, the
southwest border strategy would be evaluated and expanded into a
nationwide strategy. The officials noted, for instance, that although
there is no one law enforcement strategy totally effective in all areas of
the nation, the methodologies applied in Arizona with both Operation ICE
Storm and the Arizona Border Control Initiative would be evaluated and
tailored for use in other parts of the country.
Continuing Development Period for ICE's Strategy Attributable Partly to
Organizational and Training Needs
ICE has had to evolve into an organization that integrates the separate
and distinct investigative functions of the legacy INS and the U.S.
Customs Service. As stated in our October 2004 report:
"The integration of INS and Customs investigators into a single
investigative program has involved blending two vastly different
workforces, each with its own culture, policies, procedures, and mission
priorities. Both programs were in agencies with dual missions that prior
to the merger had differences in investigative priorities. For example,
INS primarily looked for illegal aliens and Customs primarily looked for
illegal drugs. In addition, INS investigators typically pursued
administrative violations, while Customs investigators typically pursued
criminal violations."8
Thus, at the outset of ICE's formation in March 2003, a substantial amount
of cross-training was needed regarding the relevant enforcement functions
and authorities of the respective legacy agencies. As of October 1, 2003,
8GAO, Homeland Security: Management Challenges Remain in Transforming
Immigration Programs, GAO-05-81 (Washington, D.C.: Oct. 14, 2004), page
11.
for example, ICE had about 2,400 legacy INS agents who were not trained on
the subject of money laundering or financial investigative techniques.
Equally important, legacy Customs agents had to obtain training and
experience in handling immigration-related cases. In several aspects,
aliensmuggling cases can be challenging and time-consuming. ICE and CBP
officials noted, for example, that alien-smuggling cases usually involve
language and humanitarian issues, as well as logistical challenges and
difficulties (e.g., transporting, housing, and processing aliens). Also,
the officials explained that certain investigative techniques, such as
controlled delivery operations used to develop drug-trafficking cases, are
either very difficult or unavailable in alien-smuggling cases because
humans are involved.9 Further, the officials said that unlike
drug-trafficking cases where the contraband itself is proof of the illegal
activity, the successful prosecution of alien-smuggling cases relies on
the availability of material witnesses (illegal migrants) who often get
terrified before or during trial and change their mind about testifying
against smugglers. The officials noted that this is an everyday
phenomenon-partly because, in an aliensmuggling case, even the best
witness is a party of interest to the crime.
Working Relationship between ICE and CBP Addressed in Memorandums of
Understanding
ICE and CBP Agreement (April 2004)
The continuing development period for issuing and implementing an
antismuggling strategy also stems partly from the fact that the working
relationship between ICE and CBP is still evolving, as evidenced by two
memorandums of understanding signed by these DHS components in 2004.
The March 2003 formation of ICE raised issues about the future of the
antismuggling investigative units that the Border Patrol had established
in sectors and districts along the southwest border. About a year later,
in April 2004, ICE and CBP-two components within DHS-signed a memorandum
of understanding regarding the transition of the Border Patrol's former
antismuggling units to ICE. The memorandum listed the following general
guidelines to facilitate the transition:
9In some drug-trafficking investigations, the traffickers are allowed to
proceed on their journey and deliver a shipment, unaware that law
enforcement authorities are monitoring the shipment. The purpose of this
controlled-delivery investigative technique is to capture organizers or
kingpins, rather than simply arresting a courier or seizing a single
shipment.
ICE and CBP Agreement (November 2004)
o ICE would assume the full burden of administratively supporting,
equipping, and funding the antismuggling units. Existing equipment would
not be transferred from one DHS component to another unless otherwise
mutually agreed upon.
o ICE would have lead responsibility for certain nationally designated
cases as well as Joint Terrorism Task Force cases.
o The Border Patrol would have lead responsibility for all cross-border,
border-related interdiction activities, including check-point operations.
o The Border Patrol and ICE would be jointly responsible for ensuring
the proper and timely sharing of information and intelligence.
The April 2004 memorandum of understanding also recognized a need to
develop a more comprehensive agreement regarding the working relationship
between ICE investigations and CBP.
In November 2004, ICE and CBP signed a second memorandum of understanding,
which acknowledged that the missions of the two DHS components "are
intricately connected and complementary." The memorandum stated, for
instance, that ICE's Office of Investigations has primary responsibility
for all investigations, while the Border Patrol has primary responsibility
for all interdictions between ports of entry. The purpose of the November
2004 memorandum of understanding (a 14-page document) was to
comprehensively address the roles and responsibilities of the Border
Patrol and ICE's Office of Investigations, including provisions for
sharing intelligence. To ensure proper and timely sharing of information
and intelligence, the memorandum stated that colocation of the
intelligence assets of ICE and the Border Patrol is a "best practice and a
policy preference."
The November 2004 memorandum of understanding also contains provisions
requiring periodic implementation reviews, which are to be the joint
responsibility of the Assistant Secretary, ICE, and the Commissioner, CBP.
Specifically, the memorandum calls for joint reviews (1) 6 months from the
date of the memorandum, (2) 1 year after its initial effective date, and
(3) thereafter every 2 years or at any time requested by either party.
After these reviews are conducted, the Under Secretary for the Border and
Transportation Security Directorate (or his designee) is to concur with
any modifications to be made to the memorandum of understanding.
Interim Guidance in Absence of a Strategy
In the absence of a national strategy to combat alien smuggling, including
investigating the money trail, ICE used various means to provide interim
guidance to investigators. Such guidance included, for instance, the
formation of working groups with members from various field offices and
disciplines, as well as a presentation at a March 2004 conference of
special-agents-in-charge and attaches. Moreover, ICE said it continues to
provide guidance to the field in the form of training seminars and
managerial conferences. Also, ICE indicated that it has posted guidance
and policy memorandums to the field on its Web site, which is available
and accessible to agents at their desktops for reference. According to
ICE, the Web site is regularly reviewed and updated to ensure that the
most recent guidance is available to the field. Additionally, ICE
officials said that headquarters staff routinely travel to field offices
to review ongoing undercover operations and large-scale investigations to
help ensure compliance with existing policies and priorities.
In April 2004, ICE's Office of Investigations electronically disseminated
guidance to all field offices advising them of ICE's mission and
priorities. The guidance noted that, since mission threats vary by regions
or areas of responsibility, field offices have the latitude to manage
their resources to address designated national priorities in the manner
they determine the most effective. The guidance designated that the major
national priorities to be targeted by field offices consist of three broad
investigative categories-smuggling, financial, and national security.
Also, the guidance explained that all investigative priorities tie
together through the Cornerstone initiative,10 which
"is now evolving far beyond its initial designation as an umbrella
financial program ... and represents the essence of what ICE ...
[investigators] should be striving for in all disciplines. We should be
focusing our resources on efforts that determine systemic vulnerabilities
that can be exploited by criminal organizations and terrorists ... We
should be looking to examine all of our different investigative activities
to see if there is connectivity between them and to see if this
connectivity provides evidence of systemic vulnerabilities. ... We may
start each investigation with the most simple of border violations, but we
should always aim to see how each single violation ties into the larger
mosaic of systemic vulnerabilities and organized crime."
10Launched in July 2003, Cornerstone is ICE's comprehensive enforcement
initiative focusing on financial and trade investigations to identify and
eliminate vulnerabilities that can be exploited. Besides financial and
money-laundering investigations, Cornerstone targets commercial fraud,
smuggling and trafficking, export and trade violations, and intellectual
property crimes.
Generally, the ability to identify connectivity or the larger mosaic
depends largely on the effectiveness of information and intelligence
sharing by ICE and CBP-whose working relationship is continuing to evolve.
Also, the necessary technology infrastructure is continuing to evolve, as
discussed in the following section.
Ongoing Project to Improve Information Technology Systems
A key aspect of implementing any antismuggling strategy is the interagency
sharing of information and intelligence. Such sharing is critical to
achieving ICE's investigative objective of determining "how each single
violation ties into the larger mosaic of systemic vulnerabilities and
organized crime." This analytical connectivity ability should be enhanced
when DHS components have interoperable information technology systems-the
goal of an ongoing, multiyear project (the Consolidated Enforcement
Environment).
The ongoing Consolidated Enforcement Environment project is a
department-level information technology initiative to address the
enforcement and investigative needs of DHS components-ICE, CBP (including
the Border Patrol), U.S. Citizenship and Immigration Services,
Transportation Security Administration, U.S. Coast Guard, and U.S. Secret
Service. In December 2004, ICE officials told us that the initiative was
still in the conceptual stage.
In further perspective, the Consolidated Enforcement Environment project
is part of a larger initiative-the Federal Investigative Case Management
System-that envisions a "common solution platform" to be used
governmentwide to support the missions of investigative agencies. Here
again, this initiative is in its early stages. In September 2004, DHS and
the Department of Justice jointly released a "request for information" and
scheduled an "industry day" to seek submission of product/solution
descriptions that would allow investigative agencies to "systematically
build new and/or evolve existing case management systems into common case
management architecture throughout the federal government." An interim
goal is to have the system's architecture reflected in business cases
submitted for the fiscal year 2006 budget review. The envisioned common
system architecture could have particular relevance for managing
alien-smuggling cases, given that various federal agencies-including
components of the Departments of Homeland Security, Justice, the Treasury,
and State-can be involved in investigations (see app. III).
Opportunity for Increasing the Utility of Referrals from CBP to ICE
An important aspect of the working relationship between ICE and CBP
involves referrals of alien-smuggling leads for investigation. The Border
Patrol is the primary DHS component responsible for interdicting aliens
smuggled between ports of entry. Generally, after the Border Patrol makes
an interdiction, the smuggled aliens are separated from members (drivers,
guides, etc.) of the smuggling organization; interviews are conducted of
both groups; sworn statements are solicited from material witnesses;
fingerprints are taken; and other relevant information is accumulated.
Given the large annual volume of interdictions, the Border Patrol usually
refers to ICE's Office of Investigations only those cases that it believes
involve a significant scope, violence, or other egregious circumstances.
To facilitate investigative efforts, the November 2004 memorandum of
understanding specified, for example, that the Border Patrol is to notify
ICE's Office of Investigations of certain interdiction events, such as the
deaths of aliens, hostage situations, and the arrests of aliens from
special interest countries. During our review, ICE officials stressed to
us the importance of maximizing enforcement efforts by prioritizing
investigations to target the most egregious cases, such as criminal
organizations, violent offenders, and threats against U.S. security.
In addition to making notifications or referrals that result from tactical
interdictions, the Border Patrol also makes referrals to ICE based on more
in-depth or strategic analyses conducted by intelligence units. That is,
the Border Patrol's intelligence units-which are located in each of the
organization's 20 geographical sectors-routinely analyze alien-smuggling
interdictions to develop information on smuggling patterns and identify
leads warranting further investigation. For these leads, the Border Patrol
prepares and submits target or intelligence folders to ICE. In this
regard, the November 2004 memorandum of understanding specified that the
Border Patrol would actively prepare intelligence folders and forward them
to ICE on a case-by-case basis as the need arises.
The memorandum made no mention of tracking either the number or the
results of such referrals. Moreover, headquarters officials at both ICE
and CBP told us there was no mechanism in place for tracking the number
and the results of these referrals, including even whether ICE declined to
act on the referrals. ICE officials noted, however, that establishment of
a tracking mechanism would help ICE ensure that appropriate action is
taken on referrals. Also, in response to our inquiry at ICE headquarters,
the chief of the Human Smuggling and Trafficking Unit said that
implementing a tracking mechanism could have benefits for both agencies,
particularly in reference to identifying opportunities for developing
cases on large or significant alien-smuggling organizations.
Prosecutions and Convictions Pursued in Alien-Smuggling Cases; Asset Seizures
Expected to Increase
Similarly, CBP headquarters and field officials commented that having a
mechanism for tracking the disposition of investigative referrals to ICE
could have benefits for the Border Patrol. The officials noted, for
instance, that the Border Patrol could continue pursuing leads if ICE-for
lack of available resources or other reasons-does not take action on the
referrals. Further, the CBP officials said that having information on the
results of referrals-including, if applicable, the reasons for
declinations- could help the Border Patrol develop better target or
intelligence folders in making referrals to ICE.
CBP officials also commented that implementing a tracking mechanism
probably would involve minimal costs while providing substantial benefits.
The CBP officials noted, for instance, that such a mechanism could consist
of recording referrals and monitoring progress or dispositions.
About 2,400 criminal defendants were convicted in federal district courts
in fiscal year 2004 under the primary alien-smuggling statute. According
to federal officials we interviewed, most alien-smuggling prosecutions
stem from reactive or interdiction-type cases at the border, wherein
in-depth investigations to follow a money trail either are not warranted
or are precluded by resource and time constraints. For fiscal year 2004,
ICE reported seizures totaling $7.3 million from its alien-smuggling
investigations-plus an additional $5.3 million generated by the state of
Arizona under Operation ICE Storm. Officials at Treasury's Executive
Office for Asset Forfeiture told us they anticipate that ICE will have
increased seizures in fiscal year 2005 or later, as ICE further applies
its financial and money-laundering expertise to address alien smuggling.
Similarly, ICE officials anticipate increased seizures. In this regard,
for the first 6 months of fiscal year 2005, ICE reported seizures of $7.8
million from alien-smuggling investigations. Also, according to Justice
and ICE officials, federal efforts to dismantle smuggling organizations
could be enhanced by civil forfeiture authority for real property (such as
stash houses) used to facilitate alien smuggling.
Prosecutions of Alien The principal federal statute used to prosecute
alien smugglers is section Smugglers: More than 274 of the Immigration and
Nationality Act, which prohibits knowingly or 2,000 Convictions Annually
recklessly bringing in, transporting, or harboring certain aliens. Under
this
statute, which is codified at 8 U.S.C. S: 1324, federal prosecutors have
obtained more than 2,000 convictions annually since fiscal year 1999, as
table 1 shows.
Table 1: Number of Defendants Convicted (under 8 U.S.C. S: 1324) in
Federal Courts for Smuggling Unlawful Aliens, Fiscal Years 1995 through
2004
Number of defendants convicted
Fiscal year
under 8 U.S.C. S: 1324
1995 589
1996 1,253
1997 1,310
1998 1,694
1999 2,302
2000 2,429
2001 2,348
2002 2,103
2003 2,654
2004 2,457
Source: Executive Office for U.S. Attorneys data.
Note: According to Justice, alien-smuggling-related activity also may have
been prosecuted under a variety of other statutes, including 18 U.S.C. S:
1543 (passport fraud); 18 U.S.C. S: 1544 (misuse of passport); 18 U.S.C.
S: 1546 (immigration document fraud); 18 U.S.C. S: 1028 (identification
document fraud); 18 U.S.C. S: 201 (bribery of public official); 18 U.S.C.
S: 1962 (racketeering activity); 8 U.S.C. S: 1325 and 18 U.S.C. S: 2
(aiding and abetting illegal entry); and 8 U.S.C. S: 1326 (reentry after
removal).
Prosecutions of immigration offenses may result from either reactive or
proactive investigations. As the name implies, the first category
(reactive investigations) is analogous to instances where police officers
encounter and instantly react to street crimes as they occur. Whereas
proactive investigations generally have planning and targeting aspects and
may involve undercover operations and the use of electronic surveillance
and other long-term investigative techniques, including support from ICE's
Asset Identification and Removal Groups, which are specialized units that
focus on locating, tracing, and seizing assets of criminal organizations.
Regarding table 1, the Executive Office for U.S. Attorneys data did not
indicate which cases resulted from proactive versus reactive
investigations.
Officials Reported That Most Immigration Offense Cases Are Reactive, but the
Formation of ICE Has Provided an Opportunity for More Proactive Cases Using
Financial Investigative Techniques
According to the federal officials we interviewed in three federal
judicial districts encompassing much of the southwest border-the District
of Arizona, the Southern District of California, and the Southern District
of Texas-the vast majority of immigration offense cases are reactive
rather than proactive.11 Officials noted, for instance, that most
prosecutions result from interdictions made by the Border Patrol, the
front-line DHS component that functions in a fast-paced operations tempo
and encounters a tremendous volume of instant cases, wherein in-depth
investigations either are not warranted or are precluded by resource and
time constraints.
Nevertheless, the creation of DHS-which included the formation of ICE-has
provided an opportunity for more proactive investigations of
alien-smuggling organizations, such as using financial investigative
techniques to follow the money trail from smuggling fees. ICE officials
told us that while many of the investigations opened by ICE are the result
of referrals from the Border Patrol and other law enforcement
firstresponders, ICE has always been involved in proactive investigations
related to alien smuggling and trafficking.
In response to our inquiry, officials in the Domestic Security Section of
Justice's Criminal Division indicated that the creation of DHS was an
important development and has resulted in an investigative entity (ICE)
that can focus on asset forfeiture and money-laundering offenses as part
of significant alien-smuggling investigations.12 According to ICE
headquarters, significant investigations would include, for example,
aliensmuggling networks identified by the targeting subgroup of the
National Security Council's Migrant Smuggling and Trafficking Interagency
Working Group.
During our visits in September 2004 to ICE field offices responsible for
southwest border areas, we asked to review the files of any closed
aliensmuggling cases that reflected the use of financial investigative
techniques. In response to our inquiries, the field office managers
informed us that
11To more fully understand and illustrate the types and results of
alien-smuggling investigations, we identified and summarized recent cases
that have been prosecuted in these three federal judicial districts (see
app. V).
12The Justice officials noted that-based on interagency working
relationships, including participation on the ICE Undercover Review
Committee-it is clear that the development of a financial evaluation of
investigative targets has become a routine part of the investigative
process.
their respective offices had not yet completely closed relevant cases. For
instance, ICE officials in the southern district of Texas said that they
were still tracing illegal proceeds in the Salman case involving the
smuggling of Chinese nationals, which is summarized in appendix V based on
press release information. ICE headquarters officials explained that
criminal investigations in which persons are targeted for prosecution and
assets are identified for seizure can remain open for 1, 2, or more years
before being completely closed. The officials noted that it is not
uncommon for targeted individuals to be arrested, convicted, and sentenced
while seized assets are still pending final disposition through civil or
criminal forfeiture proceedings.
Also, during our field visits in September 2004, we asked U.S. Attorney's
Office officials for their observations regarding whether there has been
an increasing emphasis on the financial aspects of alien-smuggling
investigations since the creation of DHS and ICE. In Arizona, federal
prosecutors emphasized that Operation ICE Storm is a clear indication of
ICE's efforts to become more proactive in alien-smuggling investigations.
Also, federal prosecutors in Texas (Houston) said the money trail is being
pursued when appropriate, such as proactive cases involving smuggling
organizations that are based in the Far East (e.g., Thailand and certain
provinces in the People's Republic of China) and have networks in Latin
America and Mexico. The federal officials noted that investigations of
these cases may include FBI participation and the use of undercover agents
and electronic surveillance and may result in assets being seized and
suspects being charged with money laundering and violations of the
Racketeer Influenced and Corrupt Organizations Act.
In December 2004, ICE headquarters officials told us that ongoing
aliensmuggling cases in other areas of the nation-Florida, Georgia, New
York, and Washington-were also using financial investigative techniques
and are expected to result in substantial seizures. Because these cases
were ongoing, the officials declined to provide specific details, other
than information already made available to the public. For example,
according to ICE or U.S. Attorney's Office news releases:
o Southern District of Florida: Sixteen people were arrested in December
2004, following an investigation conducted by ICE in Miami, New York, and
Ecuador. Using immigration documents provided by undercover agents, the
defendants participated in smuggling Ecuadorian and Chinese nationals into
the United States by
commercial airline. The criminal organizations behind the scheme charged
as much as $20,000 per alien.13
o Northern District of Georgia: In November 2004, federal indictments
were unsealed regarding 19 defendants allegedly connected with an
illegal-alien-smuggling conspiracy. According to the indictments, the
defendants employed hundreds of undocumented aliens in various gas
station/convenience stores in the Atlanta metropolitan area as a means of
attaining higher profits through nonpayment of overtime compensation,
nonpayment of employer-share taxes, and nonpayment of mandatory employee
benefits. Forfeitures amounting to "millions of dollars" are being
sought."14
o Northern District of New York: From January 1999 through November 17,
2004, the defendants, all operators of various Chinese buffet restaurants
in Albany, Schenectady, Saratoga, Columbia, and Dutchess Counties, used
illegal aliens of Chinese and Mexican nationality as workers in their
restaurants and laundered proceeds from the operation of those
restaurants. Forfeitures are being sought relating to more than 40 bank
accounts, as well as vehicles (allegedly used during the commission of the
offenses) and parcels of real property (allegedly purchased with the
illegal proceeds).15
o Western District of Washington: In November 2004, the defendant- who
had admitted to organizing a scheme whereby Cambodian children were taken
from their families and represented on immigration forms as orphans for
adoption by American families-was sentenced to 18 months in prison, 3
years of supervised release, 300 hours of community service, and more than
$60,000 in restitution. Also, the defendant was ordered to forfeit the
proceeds of the crime to the
13ICE, Inside ICE, "ICE's `Operation Palmdale' Disrupts Major
International Smuggling Ring," Volume 1, Issue 18, December 20, 2004.
14U.S. Attorney's Office, Northern District of Georgia, "Operation Sugar
Crisp Takes Down Ring, Indictment Unsealed Naming 19 Defendants," November
19, 2004.
15ICE, news release, "Operators of Chinese Restaurants in New York Charged
with Money Laundering and Harboring Illegal Aliens," November 18, 2004.
Also, the February 2005 issue of Government Executive ("ICE Warms Up-New
Partnership Nets Major Bust for Immigration and Customs Agents") reported
that "Last November, ICE executed search warrants on several restaurants
and homes, arrested ringleaders, and seized 11 vehicles and nearly $4
million in cash, real estate, and other assets."
government-a home in Hawaii worth $1.4 million and a Jaguar car
(approximately $25,000).16
More recently, in April 2005, ICE officials emphasized to us that ICE has
many ongoing investigations in which criminal organizations are targeted
for alien smuggling violations and their assets are being targeted for
seizure. The officials declined to provide specific details because
disclosure of information could compromise the ongoing investigations.
Alien-Smuggling Cases: For fiscal year 2004, ICE reported seizures
totaling $7.3 million from alien-
ICE Reported Seizures smuggling investigations, as table 2 shows.
Totaling $7.3 Million in
2004 Table 2: Amount of ICE Seizures from Alien-Smuggling Investigations,
Fiscal Year 2004
ICE investigation program Seizure amount
Alien smuggling $3,400,000
a
Other investigations involving alien smuggling 3,900,000
Total $7,300,000
Source: ICE data.
Note: According to Justice, these seizure amounts may not reflect all
proceeds derived from aliensmuggling investigations. Specifically, Justice
noted that, pursuant to 19 U.S.C. S: 2081 and 8 U.S.C. S: 1363a, ICE has
the authority to use proceeds from certified undercover operations to
offset the necessary and reasonable expenses of the operations.
aAccording to ICE, these investigations were money-laundering
investigations linked to humansmuggling violations.
Also, under Operation ICE Storm, the state of Arizona had generated an
additional $5.3 million in seizures, as of September 2004 (see app. II).
Further, at the time of our visit to Phoenix in September 2004, ICE
officials told us that the most significant alien-smuggling cases under
Operation ICE Storm were still being developed. The officials anticipated
that several major smuggling organizations would be the subjects of
arrests and indictments in the coming months. In October 2004, for
example, ICE and the Arizona Attorney General's Office announced that a
multi-agency investigation had resulted in state grand jury indictments of
21 individuals involved in providing criminal groups with used cars for
smuggling illegal immigrants, drugs, or cash. According to ICE, 11 used
car lots located in
16ICE, news release, "Woman Sentenced to 18 Months in Prison for Visa
Fraud and Money Laundering in Connection with Cambodian Adoption Scam,"
November 19, 2004.
the Phoenix metropolitan area were shut down, and 349 cars worth almost
$1.4 million were seized by ICE and the Arizona Attorney General's Office.
To obtain additional perspectives on the results of alien-smuggling
investigations in terms of recovered funds or seized assets, we contacted
Treasury's Executive Office for Asset Forfeiture, which provides
management oversight of the Treasury Forfeiture Fund-the receipt account
for the deposit of nontax forfeitures made pursuant to laws enforced or
administered by the Internal Revenue Service-Criminal Investigation and
DHS components (including ICE, CBP, the U.S. Secret Service, and the U.S.
Coast Guard). Regarding fund deposits since October 2003 that resulted
from alien smuggling cases, Executive Office for Asset Forfeiture
officials commented (in July 2004) substantially as follows:
o Fund deposits are not tracked by type of case. All member agencies are
mandated to deposit forfeited funds regardless of the type of
investigation.
o Anecdotally, however, as of July 2004, the Executive Office for Asset
Forfeiture has had no real experience with alien-smuggling investigations
that resulted in substantial enforcement actions (seizures with a value of
more than $100,000). But substantial investigations of any kind (except
bulk cash smuggling) go through the judicial process, which in many cases
takes 1 to 3 years from the date of seizure to perfect the forfeiture.
More recently, we reviewed the Treasury Forfeiture Fund Accountability
Report-Fiscal Year 2004 and found no case highlights regarding
aliensmuggling investigations. The report stated:
"FY 2004 was a robust and unprecedented revenue year for the law
enforcement bureaus participating in the Treasury Forfeiture Fund, with
over $335 million from all sources. ... It is our view that the greatest
damage to criminal enterprise can be effected through large forfeitures,
hence we have set a target level of 75 percent of our currency forfeitures
to be high impact forfeitures. Fund Management works through budgetary and
policy means to emphasize high-impact cases, i.e., those cash forfeiture
cases equal to or greater than $100,000 in value. For FY 2004 we exceeded
our target significantly with 84 percent of our cash forfeiture revenue
stemming from high-impact cases. This is a credit to our law enforcement
bureaus and their dedication to the fight against crime."
To illustrate the types of investigative cases worked by the fund's law
enforcement agencies, the report gave summary highlights of 33 cases- IRS
(17 cases), CBP (8 cases), ICE (5 cases), U.S. Secret Service (2 cases),
and U.S. Coast Guard (1 case). None of the 33 case summaries referenced
alien smuggling. The 5 ICE cases involved, respectively, a bank scam, an
adult video store and other businesses seized for racketeering,
counterfeit cigarette traffickers, a counterfeit motion picture network,
and a church fraud scheme. Of the 17 IRS cases, 5 were narcotics-related
investigations, and another 3 involved bulk-cash seizures in south Texas
of approximately $370,000; $993,000; and $5.3 million, respectively.17
Also, of the 8 CBP cases, 4 involved bulk-cash seizures-Nogales, Arizona
(about $464,000); Eagle Pass, Texas (about $518,000); and 2 separate
seizures at Rouses Point, New York (about $991,000 and $995,000).
Alien-Smuggling Cases: Asset Seizures Expected to Increase, although There
Are Caveats
Treasury's Executive Office for Asset Forfeiture officials told us they
anticipate that ICE's alien-smuggling investigations will begin having an
impact on the fund in fiscal year 2005 or later. The officials explained
that, over time, if ICE applies the financial and money-laundering
expertise of the former Customs Service special agents to address alien
smuggling, ICE should develop an immigrations investigations program on
par with the narcotics, money-laundering, trade, and export programs-each
of which produces significant asset forfeiture revenue. For instance,
according to the Treasury officials, it is not uncommon for export or
trade cases to render plea agreements for cash forfeitures of tens of
millions of dollars.
ICE headquarters officials also told us they anticipate that
alien-smuggling investigations will begin having an impact on the Treasury
Forfeiture Fund in fiscal year 2005 and future years. For the first 6
months of fiscal year 2005, ICE reported seizures totaling $7.8 million
from alien-smuggling investigations, as table 3 shows.
17Regarding the bulk-cash seizures, the report noted that IRS-CI agents
worked closely with other law enforcement agencies of the South Texas
Asset Forfeiture and Money Laundering Task Force.
Table 3: Amount of ICE Seizures from Alien-Smuggling Investigations (Oct.
1, 2004, to Mar. 31, 2005)
ICE investigation program Seizure amount
Alien smuggling $5,200,000
a
Other investigations involving alien smuggling 2,600,000
Total $7,800,000
Source: ICE data.
aAccording to ICE, these investigations were money-laundering
investigations linked to humansmuggling violations.
Generally, regarding asset seizures and forfeitures from alien-smuggling
investigations, ICE officials noted that there can be competing demands
for investigative resources. The mission of ICE's Office of
Investigations- which has more than 5,000 agents in 26 field offices
nationwide- encompasses a broad array of national security, financial, and
smuggling violations, including narcotics smuggling, financial crimes,
illegal arms exports, commercial fraud, child pornography/exploitation,
immigration fraud, and human trafficking. Regarding immigration
enforcement, the Office of Investigations is responsible not only for
deterring, dismantling, and diminishing the smuggling and trafficking of
aliens but also for minimizing immigrant benefit fraud, removing
employers' access to undocumented workers, and responding to community
complaints about illegal immigration. Nationally, about 7 percent of ICE's
total investigative hours were devoted to alien-smuggling cases in fiscal
year 2004. As noted in table 4, these investigative hours included cases
involving aliensmuggling organizations (5 percent), as well as individuals
and groups (2 percent).
In its technical comments on a draft of this report, DHS noted that other
investigative programs conducted by ICE involve criminal organizations
that profit, wholly or in part, from alien smuggling. Specifically, DHS
said that the percentage of ICE's total investigative hours devoted to
aliensmuggling cases in fiscal year 2004 could be up to 29 percent when,
in addition to the 7 percent statistic, other relevant investigative
programs are considered (see table 4)-criminal alien (12 percent),
identity and benefit fraud (5 percent), Joint Terrorism Task Force (3
percent), and human trafficking (2 percent). In providing an overall
perspective regarding ICE investigative resources devoted to
alien-smuggling cases, we agree that the 7 percent statistic is properly
supplemented by other investigative programs. However, reporting a 29
percent statistic may be
overreaching, given that these other programs may only partly involve
alien smuggling.
Table 4: National Overview of ICE Investigative Hours Worked by Program,
Fiscal Year 2004
Percentage of all
investigative hours
Investigative program worked
Drugs
Financial
Other
Criminal alien
Alien-smuggling and alien absconder (744,337 hours)
Alien-smuggling organizations (526,668 hours or 5 percent of total)
Alien-smuggling individuals/groups (198,763 hours or 2 percent of total)
Alien absconder (18,906 hours or less than 1 percent of total)
Identity and benefit fraud
Child pornography
Fraud
Strategic
Joint Terrorism Task Force
Human trafficking
Total investigative hours: 10,037,981 100%
Source: ICE data.
In further reference to the Treasury Forfeiture Fund, ICE headquarters
officials cautioned that alien-smuggling cases, in comparison with drug
cases, are much less likely to result in seizures of money. The officials
explained that almost all drug deals are conducted in cash; therefore, it
is not unusual for law enforcement to arrest criminals handling hundreds
of thousands or even millions of dollars in drug money. In contrast, the
officials noted that alien-smuggling fees per person generally involve
smaller amounts that are paid by wire transfers, which present law
enforcement the challenge of identifying consolidation points. ICE
officials said that wire transfers reflect a developing trend by alien
smugglers to exploit money services-a trend that ICE is addressing. For
instance, the officials noted that the use of wire transfers by criminal
organizations has been aggressively investigated during Operation ICE
Storm and the Arizona Border Control Initiative.
From another perspective, Canadian immigration and law enforcement
officials, including Royal Canadian Mounted Police representatives, told
us that alien-smuggling cases that result in seizures of money can be
considered a bonus-that is, such results are more the exception than the
norm. However, even absent seizures of money or other assets from alien
smugglers, ICE headquarters and field office officials stressed to us the
importance and utility of applying financial investigative expertise in
appropriate cases. The officials noted that such investigative expertise
is very useful for determining the scope and operational patterns of
aliensmuggling organizations, identifying the principals, and obtaining
evidence to build prosecutable cases. As a case in point, the officials
cited the Victoria 19 case (see app. II), which they described as being
very successful in dismantling a smuggling organization, even though the
case did not produce substantial asset seizures or forfeitures.
According to Justice and ICE, Civil Forfeiture Authority Is Not Adequate to
Seize Stash Houses Used by Alien Smugglers
Criminal Forfeiture Authority: Not Available for Fugitive Defendants or
Property Owners Not Indicted
Regarding potential forfeitures in alien-smuggling cases, Justice and ICE
headquarters officials said a concern for investigators is the lack of
adequate statutory civil forfeiture authority for seizing real property-
particularly stash houses used by smugglers.18 Asset forfeiture law has
long been used by federal prosecutors and law enforcement as a tool for
punishing criminals and deterring further illegal activity. For instance,
as a result of the government's seizure of vehicles, vessels, and aircraft
used to traffic drugs or smuggle aliens, criminals are prevented from
using the property to commit new crimes. Under current federal law, the
government has both criminal and civil forfeiture authority, but its
availability depends on several factors, including whether there has been
a conviction for the underlying offense and the nature of that offense.
Criminal forfeiture refers to the seizure of assets in the context of a
criminal prosecution. That is, upon his or her conviction, the defendant
forfeits and the government takes ownership of property that the defendant
used to commit or facilitate the offense or property that constituted the
proceeds of the illegal activity. In alien-smuggling cases,
18These houses sometimes are also referred to as "drop" houses or "safe"
houses where smugglers hide aliens while awaiting payment and travel
arrangements to final destinations throughout the nation.
Civil Forfeiture Authority: Innocent Owners Have Statutory Protections
the current criminal forfeiture authority-codified at 18 U.S.C.
982(a)(6)(A)-provides that in imposing sentence on a person convicted of
an applicable violation, the court
"shall order that the person forfeit to the United States, regardless of
any provision of State law-(i) any conveyance, including any vessel,
vehicle, or aircraft used in the commission of the offense of which the
person is convicted; and (ii) and property real or personal-(I) that
constitutes, or is derived from or is traceable to the proceeds obtained
directly or indirectly from the commission of the offense of which the
person is convicted; or (II) that is used to facilitate, or is intended to
be used to facilitate, the commission of the offense of which the person
is convicted."
Before the resolution of a criminal forfeiture action, there must be a
conviction of the defendant based on a high evidentiary standard-the
beyond-a-reasonable-doubt standard. Thus, irrespective of the type of
criminal offense involved, the criminal forfeiture authority is not
available for seizing the property of alleged felons who have fled to
avoid prosecution.
Additionally, in alien-smuggling cases, the use of the criminal forfeiture
authority is rarely an option for seizing rented real property (e.g.,
stash houses) used to facilitate the offense. In many alien-smuggling
cases, according to Justice and ICE, the real properties at issue are not
owned by the smugglers; rather, the properties are rental units, often in
distressed areas. Justice and ICE noted that evidence that the owner of a
rented stash house knew about the illegal activity and intentionally
ignored it is not sufficient to indict the owner for smuggling, and there
is rarely evidence of greater involvement in the offense by the owner; as
a result, the criminal forfeiture option is not available in such cases.
In contrast to criminal forfeiture procedure, civil forfeiture, in which
the government seizes real property and initiates a civil action to
forfeit the property, does not require that the owner of the property be
charged with a federal offense. Rather, the action is against the
property, and the government would have to demonstrate that the property
is subject to forfeiture under the applicable civil forfeiture statute for
the underlying offense. If the government is able to do so, the burden
would shift to the property owner to prove by a preponderance of the
evidence that he or she was an innocent owner. The innocent-owner defense
is not available to someone who intentionally turned a blind eye to the
illegal use of his or her property, although such an individual most
likely could not be convicted of the offense involved.
Civil Forfeiture Authority: Statutorily Limited in Alien-Smuggling Cases
Compared to Other Criminal Offenses
The innocent-owner defense and other substantive and procedural
protections were enacted as part of the Civil Asset Forfeiture Reform Act
of 2000 (CAFRA),19 which was intended to prevent abuses of civil asset
forfeiture law. Before CAFRA's enactment, news articles and congressional
hearings recounted stories of innocent owners of motels or air transport
services who had lost their businesses trying to meet the legal
requirements for recovering their seized property. CAFRA eliminated or
modified some of these requirements. For example, the burden of proof
shifted to the government to show that the property was subject to
forfeiture, rather than the claimant having to prove that it was not.
Also, individuals seeking to recover their property no longer have to post
a bond in order to make a claim.
After CAFRA, in order to forfeit facilitating property that was purchased
with legitimately earned funds, the government must demonstrate a
substantial connection between the use of the property and the offense.
Before CAFRA, some courts had allowed such forfeitures based on a weaker
connection to the crime. CAFRA was written to create uniform procedures
for civil asset forfeiture, regardless of the nature of the underlying
offense. Moreover, CAFRA increased uniformity among the substantive
forfeiture statutes by creating a single definition of proceeds of the
offense, expanding statutes to allow forfeiture of proceeds if not already
allowed, and creating a single innocent-owner defense with clearer
criteria for invoking it. Although its focus was civil forfeiture, CAFRA
also amended the criminal asset forfeiture provision for alien-smuggling
cases, which had been inadvertently written in a manner that rendered it
inoperable when it was enacted as part of a larger package of legislation
addressing immigration law in 1996. There is no evidence in the CAFRA
legislative history that Congress considered expanding civil asset
forfeiture in alien-smuggling cases to include real property used to
commit the offense.
Although the CAFRA amendments to criminal and civil forfeiture in
aliensmuggling cases were important, the statutory civil forfeiture
authority in alien-smuggling cases needs further enhancing, according to
Justice and ICE. The current statutory authority for civil forfeiture of
assets used in alien smuggling is codified at 8 U.S.C. S: 1324(b) and
provides that
19Pub. L. No. 106-185, 114 Stat. 202 (Apr. 24, 2000).
Justice and ICE Consider the Current Civil Forfeiture Authority Inadequate
"Any conveyance, including any vessel, vehicle, or aircraft, that has been
or is being used in the commission of a violation of subsection (a) [of 8
U.S.C. S: 1324], the gross proceeds of such violation, and any property
traceable to such conveyance or proceeds, shall be seized and subject to
forfeiture."
It is important to note that the civil forfeiture authority for alien
smuggling is not parallel to the criminal forfeiture provision. Most
notably, the civil provision does not include forfeiture of real property
used to facilitate the offense. Rather, the civil forfeiture provision
addresses only personal property, such as vessels, vehicles, and aircraft.
Thus, under the civil forfeiture statute for alien smuggling, a house used
to hide the aliens, conduct the alien-smuggling business, etc., could not
be forfeited as facilitating property.20
This statutory limitation contrasts with provisions in other federal
criminal statutes, which do have parallel civil forfeiture provisions.
That is, civil forfeiture provisions applicable to various criminal
offense categories- including drug trafficking, child pornography, and
money laundering-are available for seizing facilitating real property. For
instance, if a house is used to conduct drug transactions, store the drugs
and money, etc., the house can be forfeited as facilitating property. In
the view of Justice and ICE, regarding civil forfeiture authority for
seizing facilitating real property, the statutory distinction between
alien smuggling and other criminal offenses is inappropriate.
Justice and ICE consider the current civil forfeiture authority inadequate
to effectively seize real property (stash houses) used to facilitate alien
smuggling. In a December 2004 written response to our inquiry regarding
whether an amendment to 8 U.S.C. S: 1324(b) is needed, Justice emphasized
that
"One of the major remaining omissions in the forfeiture statutes for alien
smuggling offenses is the lack of civil forfeiture authority over
facilitating property other than vessels, vehicles and aircraft. In
particular, there is no civil forfeiture authority over real property used
to conceal illegal aliens or otherwise to facilitate the alien smuggling
offense. ... The Department of Justice supports amending section 1324 to
address this problem."
20However, if money laundering were charged in this example case, the
house used for alien smuggling could be forfeited under a money-laundering
forfeiture provision.
An amendment to the civil forfeiture authority, according to Justice,
would enhance federal efforts to dismantle smuggling organizations because
would-be defendants often are fugitives, which makes criminal forfeiture
unavailable. Also, a civil forfeiture authority for real property used to
facilitate alien smuggling would enable the government to establish
willful blindness arguments against landlords who hope to profit from such
ventures without becoming directly involved. Justice officials told us in
April 2005, however, that the department does not have a legislative
proposal on this subject pending before Congress because the department's
legislative policy resources have been focused on other priorities.
We asked Justice whether there has been a broad analysis of investigative
case data to determine the scope and significance of the perceived
inadequacy of the current civil forfeiture authority-that is, an analysis
to provide a basis or justification for consideration of a legislative
amendment. In its response, Justice noted that statistics are not
collected on civil forfeiture cases that could not be brought, such as
cases involving real property held by fugitives or third parties that was
used to facilitate alien smuggling. However, Justice's analysis of civil
and criminal forfeiture statutes generally has led the department to
conclude that a statute that provides only for criminal and not civil
forfeiture of facilitating property will be inadequate in such cases. In
addition, Justice officials told us that investigative experience with
alien smuggling has convinced them that such cases are numerous. Further,
in March 2005, Justice provided us summary examples of recent or pending
alien-smuggling cases in which real property used to facilitate the
offense could not be forfeited because of the absence of statutory civil
forfeiture authority (see app. VI). According to Justice, the summary
examples provided are illustrative of typical cases that recur with great
frequency in federal judicial districts along the southwest border.21
Expanding civil forfeiture authority in alien-smuggling cases to include
real property used to facilitate the offense may raise some of the same
concerns addressed by CAFRA in 2000. These concerns include the potential
for abuse of this type of forfeiture and the adequacy of protection for
the rights of innocent property owners. CAFRA was
21A related concern raised by Justice is that the current alien smuggling
statutes need to be amended to define "proceeds" as including the cost
savings realized by an employer who engages in alien smuggling for the
purpose of employing cheap illegal labor. The scope of our work did not
cover this issue.
Conclusions
compromise legislation that was developed over several years by Congress,
the Executive Branch, and interest groups. Some observers felt that the
legislation did not provide enough reforms and protections, while others
felt that it went too far and would curtail a legitimate law enforcement
tool. The procedural protections in CAFRA included specific requirements
for real property forfeitures, such as notice and an opportunity to be
heard prior to seizure and judicial, as opposed to administrative,
forfeiture for all real property. CAFRA's requirement that the government
prove a substantial connection between facilitating property and the
underlying offense also would apply to any expansion of civil forfeiture
authority in the alien-smuggling statute, absent a specific exemption.
Views as to whether these CAFRA protections were adequate likely will
affect whether expanding the civil forfeiture authority to include real
property used to facilitate alien smuggling is seen as striking an
appropriate balance of the law enforcement and the property interests
involved.
Creation of DHS in March 2003 has provided new opportunities to more
effectively combat alien smuggling, particularly in reference to using
financial investigative techniques to target and seize the monetary assets
of smuggling organizations.
However, after more than 2 years, the federal response to alien smuggling
is still evolving, including development and implementation of a strategy
to follow the money trail. Also evolving is the working relationship of
ICE and CBP, two DHS components that have the primary responsibility for
investigating and interdicting alien smugglers. Having clearly defined
roles and responsibilities for these components is important, given their
complementary antismuggling missions. In this regard, ICE's and CBP's
November 2004 memorandum of understanding did not address a mechanism for
tracking the number and the results of leads referred by CBP to ICE for
investigation. If a tracking mechanism were in place, CBP could continue
pursuing certain leads if ICE-for lack of available resources or other
reasons-does not take action on the referrals. As such, a tracking
mechanism would help to further ensure that large or significant
alien-smuggling organizations are identified and investigated.
Federal law enforcement has concerns that efforts to dismantle
aliensmuggling organizations are constrained by the current absence of
civil forfeiture authority for real property used to facilitate the
smuggling of aliens. In contrast, for drug trafficking and various other
criminal offense categories, civil forfeiture authority is available for
seizing real property
used to facilitate these crimes. Our review of CAFRA legislative history
found no evidence that Congress considered modifying this statutory
distinction when CAFRA was enacted. According to Justice and ICE, the
absence of civil forfeiture authority for real property used to facilitate
the smuggling of aliens is inappropriate because law enforcement is unable
in many cases to seize stash houses where smugglers hide aliens while
awaiting payment and travel arrangements to final destinations throughout
the nation. However, because its legislative policy resources have been
focused on other priorities, Justice has not developed and submitted a
legislative proposal to Congress.
To enhance the federal response to alien smuggling, we are making two
recommendations. Specifically, we recommend that
o the Secretary of Homeland Security establish a cost-effective
mechanism for tracking the number and results of referrals by CBP to ICE,
and
o the Attorney General, in collaboration with the Secretary of Homeland
Security, consider developing and submitting to Congress a legislative
proposal, with appropriate justification, for amending the civil
forfeiture authority for real property used to facilitate the smuggling of
aliens.
Recommendations for Executive Action
Agency Comments
and Our Evaluation
We provided a draft of this report for comment to the Departments of
Homeland Security, Justice, the Treasury, and State. In its written
comments, DHS expressed general agreement with our findings and outlined
steps it planned to take to implement our recommendation on the
establishment of a cost-effective mechanism for tracking the number and
results of referrals by CBP to ICE.
DHS also raised a concern regarding interpretation of the data in table 4
(national overview of ICE's investigative hours worked by program, fiscal
year 2004), noting that the percentage of ICE's total investigative hours
devoted to alien-smuggling cases in fiscal year 2004 could be up to 29
percent when, in addition to the 7 percent statistic we reported, other
relevant investigative programs are considered. In providing an overall
perspective regarding ICE investigative resources devoted to
aliensmuggling cases, we agree that the 7 percent statistic is properly
supplemented by other investigative programs. However, reporting a 29
percent statistic may be overreaching, given that these other programs may
only partly involve alien smuggling. The full text of DHS's written
comments is reprinted in appendix VII. DHS also provided technical
comments, which we incorporated in this report where appropriate.
We also received comments via e-mail from designated liaisons at the
Departments of Justice, the Treasury, and State. Justice agreed with our
recommendation to consider developing and submitting to Congress a
legislative proposal, with appropriate justification, for amending the
civil forfeiture authority for real property used to facilitate the
smuggling of aliens. Treasury said that the report accurately and fairly
portrayed the department's role in helping to identify, track, and attack
the financing of alien smuggling. Treasury did not comment on the two
recommendations, which were made to the Secretary of Homeland Security and
the Attorney General, respectively. Similarly, State concurred with the
report but did not comment on the recommendations. Also, State provided
one technical comment, which we incorporated in this report where
appropriate.
As arranged with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days after
the
date of this report. At that time, we will send copies of this report to
interested congressional committees and subcommittees. We will also
make copies available to others on request. In addition, this report will
be
available at no charge on GAO's Web site at http://www.gao.gov.
If you or your staff have any questions about this report or wish to
discuss
the matter further, please contact me at (202) 512-8777 or Danny Burton at
(214) 777-5600. Other key contributors to this report were Odilon Cuero,
Kathleen Ebert, Frances Cook, Jan Montgomery, Mary K. Muse, Maureen
Shields, and David Alexander.
Sincerely yours,
Richard M. Stana
Director, Homeland Security and Justice
Appendix I: Objectives, Scope, and Methodology
Objectives
Scope and Methodology
Our overall purpose was to study the federal response to alien smuggling,
especially efforts of the Department of Homeland Security (DHS) and its
largest investigative component, U.S. Immigration and Customs Enforcement
(ICE). The key questions addressed were as follows:
o What is the implementation status of ICE's strategy for combating
alien smuggling, particularly regarding efforts to use financial
investigative techniques to follow the money trail and seize the monetary
assets of smuggling organizations?
o Since the creation of DHS and ICE, what results have been achieved
from alien-smuggling investigations in terms of prosecutions and
convictions, as well as seizures of smugglers' monetary assets?
Also, to provide supplementary and contextual perspectives on the federal
response to alien smuggling, we obtained overview information on (1) the
roles of various federal agencies-DHS components such as ICE and U.S.
Customs and Border Protection (CBP), as well as components of the
Departments of Justice, the Treasury, and State; and (2) federal efforts
to work with the governments of source and transit countries to reduce the
flow of smuggled aliens into the United States.
To address these questions and obtain contextual perspectives, we
interviewed responsible officials at and reviewed relevant documentation
obtained from the Departments of Homeland Security, Justice, the Treasury,
and State and their components. Our work focused on alien smuggling and
not human trafficking, although both smuggling and trafficking may have
common elements. In legal and diplomatic references, alien smuggling is
distinct from human trafficking. By definition, alien smuggling (sometimes
called people smuggling or human smuggling) involves more than one
country-that is, alien smuggling involves procuring illegal entry into a
country of which the smuggled person is neither a citizen nor a lawful
permanent resident. Alien smuggling usually involves persons who have
consented to be transported to another country, and this activity
generally produces short-term profits for the smugglers. That is, after
the aliens reach their final destinations, they have no continuing
relationship with the smugglers. In contrast, the criminality and human
rights abuses associated with human trafficking- such as coercion for
prostitution, labor sweat shops, or other exploitative purposes and
servitude arrangements-may continue after the migrants reach the United
States in order to produce both short-term and long-term
Appendix I: Objectives, Scope, and Methodology
profits. Whereas a trafficked person is a victim, an alien who consents to
be smuggled is subject to criminal processing and deportation.
Initially, in addressing the key questions, we reviewed information
available on the Web sites of the Departments of Homeland Security,
Justice, the Treasury, and State. To obtain additional background and
overview perspectives, we conducted a literature search to identify
relevant reports, studies, articles, and other documents-including
congressional hearing testimony-regarding the federal response to alien
smuggling. For example, at congressional hearings in June and July 2003,
ICE officials testified that ICE was developing a strategy-the
Antismuggling/Human-Trafficking Strategy-to address alien smuggling and
human trafficking at the national and international levels and that the
strategy would concentrate ICE's efforts in intelligence-driven
investigations against major violators, specifically targeting
organizations with ties to countries that support terrorist organizations
such as al Qaeda.1
ICE's Strategy for Combating Alien Smuggling
Regarding ICE's strategy for combating alien smuggling, we interviewed
officials of relevant DHS components, particularly ICE, to determine the
status of the strategy's development and implementation and the extent to
which it included a focus on investigating the money trail from smuggling
fees. The scope of our review was limited because ICE's strategy for
combating alien smuggling had not been finalized as of April 2005. Rather,
ICE was in the process of adjusting the draft strategy to focus on the
southwest border and encompass all aspects of smuggling, aliens as well as
drugs and other contraband.
In the absence of a final strategy, we determined what interim guidance
ICE headquarters had disseminated to its field offices to ensure a focus
on following the money trail in alien-smuggling investigations. Also, we
obtained information about Operation ICE Storm, a multi-agency task force
launched in October 2003 to crack down on migrant smuggling and
1Statement of Tom Homan, ICE Interim Resident Agent-In-Charge (San
Antonio, Tex.), at a hearing ("Deadly Consequences of Illegal Alien
Smuggling") before the Subcommittee on Immigration, Border Security, and
Claims, House Committee on the Judiciary, June 24, 2003, and statement of
Charles H. Demore, ICE Interim Assistant Director of Investigations, at a
hearing ("Alien Smuggling/Human Trafficking: Sending a Meaningful Message
of Deterrence") before the Subcommittee on Crime, Corrections and Victims'
Rights; Senate Committee on the Judiciary, July 17, 2003.
Appendix I: Objectives, Scope, and Methodology
related violence in Arizona by, among other means, targeting the monetary
assets of smuggling organizations (see app. II).
Results Achieved from Investigations
To determine the results that have been achieved from alien-smuggling
investigations in terms of prosecutions and convictions, we obtained
statistics from the Executive Office for U.S. Attorneys. Specifically, for
fiscal years 1995 through 2004, the Executive Office for U.S. Attorneys
provided us data on the number of defendants convicted (under 8 U.S.C. S:
1324) in federal courts for smuggling unlawful aliens.
To determine the results that have been achieved from alien-smuggling
investigations in terms of recovered funds or seized assets, we contacted
managers of the federal government's applicable asset forfeiture funds:
o Asset seizures and forfeitures resulting from alien smuggling cases
accrued to the Department of Justice Forfeiture Fund in 2003 and previous
fiscal years, given that the legacy Immigration and Naturalization Service
was a component of Justice.
o For 2004 and subsequent fiscal years, seizures and forfeitures made by
ICE accrue to the Treasury Forfeiture Fund. The Department of the
Treasury's Executive Office for Asset Forfeiture provides management
oversight of the Treasury Forfeiture Fund, which is the receipt account
for the deposit of nontax forfeitures made pursuant to laws enforced or
administered by DHS components (including ICE, U.S. Customs and Border
Protection, the U.S. Secret Service, and the U.S. Coast Guard) and
Internal Revenue Service-Criminal Investigation.
Further, we obtained perspectives from Justice and ICE on the usefulness
(and limitations) of statutory revisions (under the Civil Asset Forfeiture
Reform Act of 2000) that were intended to enhance the government's
authority to pursue civil forfeiture of the gross proceeds of alien
smugglers.
Also, to more fully understand and illustrate the results of
alien-smuggling investigations, we identified and summarized recent cases
that have been prosecuted in three federal judicial districts-the District
of Arizona, the Southern District of California, and the Southern District
of Texas (see app. V). Each of these federal judicial districts is
coterminous with the U.S.-Mexico, or southwest, border. To identify
alien-smuggling cases federally prosecuted in these districts, we reviewed
press releases issued by the respective U.S. Attorney's Office during
January through June 2004.
Appendix I: Objectives, Scope, and Methodology
In this 6-month period, the three districts issued press releases that
covered a collective total of 23 alien-smuggling cases-District of Arizona
(9), Southern District of California (3), and Southern District of Texas
(11). We discussed these cases with U.S. Attorney's Office and ICE
officials in each of the three districts. Because these cases were
selected using a nonprobabilistic method, they are not representative of
all cases in the districts or nationwide.
Other Departments' Efforts to Help Address Alien Smuggling
To determine how the Departments of Justice, the Treasury, and State have
helped DHS address alien smuggling, particularly efforts of smugglers to
launder their proceeds, we interviewed component agency officials and
reviewed documentation regarding relevant initiatives, programs, task
forces, or other activities (see app. III). Also, from the applicable
components, we solicited examples of recent alien-smuggling cases that
agency officials considered to be significant, and we discussed with
agency officials the nature and extent of interagency cooperation in the
cases. A limitation is that these cases may not be representative of the
universe.
As an additional probe regarding interagency efforts, we obtained
information about the roles and functioning of relevant coordination
mechanisms, such as (1) the National Security Council's Migrant Smuggling
and Trafficking Interagency Working Group, which has a targeting subgroup
to identify for investigation the most dangerous international
alien-smuggling networks, especially those that pose a threat to national
security and (2) the Human Smuggling and Trafficking Center, an
interagency entity for disseminating intelligence and other information to
address the separate but related issues of alien smuggling, trafficking in
persons, and clandestine terrorist travel.
Working with Source and Transit Countries
To determine the extent to which federal entities have been working with
the governments of source and transit countries to reduce the flow of
smuggled aliens into the United States, we interviewed officials at and
reviewed documentation obtained from the Departments of Homeland Security,
Justice, the Treasury, and State (see app. IV). We focused on relevant
bilateral efforts with border nations (Mexico and Canada), as well as
other source and transit countries. We discussed bilateral efforts with
representatives of the Mexican and Canadian embassies in Washington, D.C.
Appendix I: Objectives, Scope, and Methodology
Data Reliability
Regarding multilateral efforts, we contacted the Department of State to
obtain information about the implementation status of the "Protocol
against the Smuggling of Migrants by Land, Sea and Air," which is an
agreement supplementing the United Nations Convention against
Transnational Organized Crime.
We conducted our work from April 2004 to March 2005 in accordance with
generally accepted government auditing standards. Regarding the results of
alien-smuggling investigations-for example, convictions and asset seizures
and forfeitures-we discussed the sources of the data with federal agency
officials and worked with them to resolve any inconsistencies. Similarly,
regarding ICE investigative hours by program, as well as analytical
support provided for alien-smuggling cases by the Financial Crimes
Enforcement Network, we discussed the sources of the data with federal
agency officials and worked with them to resolve any inconsistencies. We
determined that these data were sufficiently reliable for the purposes of
this review.
Also, appendix III summarizes Department of State data-such as the number
of passports issued and the number of arrests for passport fraud- that
were presented in a fact sheet (dated May 12, 2004). Because these data
are used in our report only for background or contextual purposes, we did
not assess their reliability.
Appendix II: Creation of the Department of Homeland Security Has Provided New
Opportunities for Combating Alien Smuggling
Creation of the Department of Homeland Security in March 2003 provided new
opportunities to more effectively combat alien smuggling by, among other
means, bringing to bear financial investigative techniques. In particular,
U.S. Immigration and Customs Enforcement-the largest investigative
component of DHS-integrates the legal authorities and investigative tools
of the legacy Immigration and Naturalization Service and the Treasury
Department's U.S. Customs Service, which has extensive experience in
combating money laundering and other financial crimes.
Seminal Case Cited as New Model for Fighting Alien Smuggling
A seminal case illustrating the potential of these integrated legal
authorities and investigative tools to combat alien smuggling began on May
14, 2003, with the tragic discovery of 17 bodies and more than 50 other
undocumented aliens in a trailer abandoned at a truck stop near Victoria,
Texas.1 In this case, the smuggling operation involved aliens from Mexico
and several Central American countries (El Salvador, Honduras, Nicaragua,
and Guatemala) who were to be transported to Houston, Texas. According to
congressional testimony:
"ICE worked closely with other DHS components, local law enforcement, and
intelligence and law enforcement agencies in Mexico and Guatemala. Our
unique combination of investigative tools allowed us to follow the money,
pinpoint the conspirators, and bring them to justice. In one month's
period, ICE's coordinated approach led to the arrest and prosecution of 14
defendants in the United States and abroad.
"This success was the foundation for a new model for fighting smuggling,
which we've now
taken to Arizona. ICE assembled a task force known as `Operation ICE
Storm' to combat violent crime in the Phoenix metropolitan area."2
1Two other immigrants who were inside the trailer later died at a
hospital, making a death toll of 19. More details about the "Victoria 19"
case are presented in appendix V.
2Statement of John P. Torres, ICE Deputy Assistant Director, Smuggling and
Public Safety, at a hearing ("Pushing the Border Out on Alien Smuggling:
New Tools and Intelligence Initiatives") before the Subcommittee on
Immigration, Border Security, and Claims; House Committee on the
Judiciary, May 18, 2004.
Appendix II: Creation of the Department of Homeland Security Has Provided
New Opportunities for Combating Alien Smuggling
Operation ICE Storm Launched in Phoenix: A Focus on Targeting the Monetary
Assets of Smuggling Organizations
In October 2003, ICE launched Operation ICE Storm, described as an
unprecedented multi-agency initiative to combat human smuggling and the
violence it has generated in Arizona. ICE's November 2003 press release
says:
"ICE ... brings to bear a broad array of authorities and resources that
make it uniquely
qualified to lead the fight against human smuggling. ICE agents will
combine immigration,
smuggling, and financial investigative powers to attack the criminal rings
from a variety of
levels. ICE's financial investigations expertise, for example, will allow
the task force to
follow the money trail in ways not previously possible. ... A critical
facet of ICE Storm
involves targeting the monetary assets of smuggling organizations.
Authorities say
`following the money trail' and crippling the organizations' financial
infrastructure is crucial to disabling their operations."3
A key aspect of the initiative was formation of a task force consisting of
local, state, and federal agencies (see table 5)-including ICE's
deployment of 50 additional special agents to the Phoenix area, which
effectively doubled the size of ICE's field office there.
Table 5: Federal, State, and Local Composition of Operation ICE Storm
(Arizona)
Governmental levels Participating agencies
Federal U.S. Attorney's Office ICE U.S. Customs and Border Protection
Bureau of Alcohol, Tobacco, Firearms
and Explosives
State Arizona Attorney General's Office Arizona Department of Public
Safety
Local Maricopa County Attorney's Office Phoenix Police Department Mesa
Police Department Tempe Police Department Scottsdale Police Department
Maricopa County Sheriff's Office Pinal County Sheriff's Office
Source: ICE.
In September 2004, about 1 year after Operation ICE Storm was launched, we
visited Phoenix to discuss the progress and results of the initiative.
3ICE press release, "Department of Homeland Security Launches Operation
`ICE Storm'- ICE to Lead Landmark Crackdown on Human Smuggling," November
10, 2003.
Appendix II: Creation of the Department of Homeland Security Has Provided
New Opportunities for Combating Alien Smuggling
According to ICE officials, results as of September 20, 2004, included the
following:
o Some $5.5 million in U.S. currency (funds potentially earmarked for
smuggling organizations) had been seized.
o Some 275 persons had been arrested for alien smuggling or
violencerelated offenses. Of these, 36 had been charged with hostage
taking, which is punishable by a term of imprisonment up to life.
o Some 5,013 smuggled aliens had been arrested. Of these, about 700 had
been held against their will by the smugglers, who were attempting to
extort additional payments.
Of the currency seized, the large majority ($5.3 million) resulted from
efforts conducted by state and local agency participants-e.g., the Arizona
Attorney General's Office, the Arizona Department of Public Safety, and
the Phoenix Police Department-in the multi-jurisdictional task force. ICE
officials noted that this success is due partly to the fact that Arizona's
laws and judicial processes are more conducive (compared with federal laws
and processes) to using "sweeping or damming warrants" for seizing
aliensmuggling-related funds being transmitted through money remittance
outlets. In this regard, the ICE officials commented that the ability to
draw upon and leverage the authorities and resources of all participants
are important advantages of the multi-agency law enforcement task force
led by ICE.
As of September 20, 2004, none of the seizures under Operation ICE Storm
involved real property, such as stash houses used by smugglers.4 However,
the Arizona Attorney General's Office expects that a new state law enacted
in June 2004 will facilitate such seizures in the future. Sometimes
referred to in the vernacular as "coyote RICO" legislation, the new law
allows a house to be seized if there is evidence that it was used to
facilitate the smuggling of at least 15 immigrants a month.5
4As of April 2005, according to ICE, federal seizures under ICE Operation
Storm included $38,000 in real property; and four additional properties
were pending seizure, with a total potential seizure value of $260,000.
5Act of June 1, 2004, ch. 291, 2004 Ariz. Legis. Serv. 291 (West)
(amending the definition of racketeering related to money laundering). The
law became effective August 25, 2004, and is codified at Ariz. Rev. Stat.
S: 13-2317.F.3(c)(2004).
Appendix II: Creation of the Department of Homeland Security Has Provided
New Opportunities for Combating Alien Smuggling
Arizona Border Control Initiative Launched in March 2004
Further, at the time of our visit to Phoenix, in September 2004, ICE
officials told us that the most significant alien-smuggling cases under
Operation ICE Storm were still being developed. The officials anticipated
that several major smuggling organizations would be the subjects of
arrests and indictments in the coming months. In October 2004, for
example, ICE and the Arizona Attorney General's Office announced that a
multi-agency investigation had resulted in state grand jury indictments of
21 individuals involved in providing criminal groups with used cars for
smuggling illegal immigrants, drugs, or cash. According to ICE, 11 used
car lots located in the Phoenix metropolitan area were shut down, and 349
cars worth almost $1.4 million were seized by ICE and the Arizona Attorney
General's Office.
Regarding seizures of currency under Operation ICE Storm, as of April
2005, ICE reported that the cumulative total had reached $7.4 million,
which consisted of $6.7 million seized by the state of Arizona and about
$654,000 seized federally.
Expanding on Operation ICE Storm, in March 2004, DHS announced the Arizona
Border Control Initiative, a program to support the priority mission of
Homeland Security agencies to detect and deter terrorist activities and
all cross-border illicit trafficking.6 Among other efforts to achieve a
safer and more secure southwest border, the initiative envisioned the
deployment of additional resources (e.g., Border Patrol agents) and use of
unmanned aerial vehicles, as well as fixed-wing aircraft and helicopters.
Further, the initiative called for continued efforts to disrupt,
dismantle, and target the financial assets of human smugglers. For
instance, in congressional testimony, an ICE official explained that
"We're building on ICE Storm's success with DHS' Arizona Border Control
initiative, in which the vigorous application of money laundering and
other federal and state statutes is depriving smuggling organizations of
the criminal proceeds, disrupting their operations and decimating their
organizational hierarchies in the United States and abroad."7
6DHS, Press Office, "Department of Homeland Security Announces Arizona
Border Control Initiative," March 16, 2004.
7Statement of John P. Torres, ICE Deputy Assistant Director, Smuggling and
Public Safety, at a hearing ("Pushing the Border Out on Alien Smuggling:
New Tools and Intelligence Initiatives") before the Subcommittee on
Immigration, Border Security, and Claims; House Committee on the
Judiciary; May 18, 2004.
Appendix II: Creation of the Department of Homeland Security Has Provided New
Opportunities for Combating Alien Smuggling
Expansion of Strategy Beyond Arizona
ICE officials have characterized Operation ICE Storm as the "investigative
component" of the Arizona Border Control Initiative. Also, ICE officials
noted that a majority of the efforts under the Arizona Border Control
Initiative are geared toward interdiction as opposed to investigation,
which means that U.S. Customs and Border Protection has a larger role than
ICE.
In May 2004, ICE reported that Special Agents-in-Charge of ICE's offices
in Chicago, Denver, El Paso, Los Angeles, San Diego, Tucson, and Mexico
City had met in Phoenix to "review the strides made under ICE Storm and
evaluate how aspects of the strategy might be adapted to combat smuggling
activity beyond Arizona."8 In July 2004, ICE reported that as a result of
the crackdown in Arizona:
o Many criminal smuggling organizations were shifting their activities
to the Los Angeles area, where they hold the undocumented migrants while
arranging for transportation to destinations nationwide.
o And, in response, DHS was placing teams (including ICE investigators
and Border Patrol agents) for operation at Los Angeles International
Airport-a key West Coast transportation hub used increasingly by
smugglers.9
The placement and operation of enforcement teams at the Los Angeles
International Airport, according to ICE, was an outgrowth of the Arizona
Border Control Initiative. In October 2004, ICE headquarters officials
told us that ICE was developing a comprehensive southwest border strategy,
8ICE press release, "Feds Vow to Use `ICE Storm' Tactics in Other Cities
as Phoenix Sees Progress in Human Smuggling Crackdown," May 18, 2004.
9ICE news release, "Homeland Security Expands Efforts to Combat Human
Smuggling in the Los Angeles Area-Initial Phase of Multi-Agency Operation
Focuses on LAX," July 14, 2004.
Appendix II: Creation of the Department of Homeland Security Has Provided
New Opportunities for Combating Alien Smuggling
given the anticipated displacement of smuggling activity to other areas
along the border resulting from Operation ICE Storm and the Arizona Border
Control Initiative. Also, the officials noted that although there is no
one law enforcement strategy totally effective in all areas of the nation,
the methodologies applied in Arizona with both Operation ICE Storm and the
Arizona Border Control Initiative were being evaluated and tailored for
use in other parts of the country.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Although Department of Homeland Security components, particularly U.S.
Immigration and Customs Enforcement and U.S. Customs and Border
Protection, have primary roles in investigating and interdicting alien
smuggling, various other agencies-including components of the Departments
of Justice, the Treasury, and State-also have significant roles. While not
exhaustive, this appendix highlights some of the antismuggling roles of
various components of the Departments of Homeland Security, Justice, the
Treasury, and State (see table 6) and provides some examples of actual
cases. Also, this appendix discusses two coordination mechanisms used to
help ensure that available resources are effectively leveraged. One
coordination mechanism is the National Security Council's Migrant
Smuggling and Trafficking Interagency Working Group, which is cochaired by
State and Justice. The Interagency Working Group has a targeting subgroup,
whose role is to identify for investigation and prosecution the most
dangerous international alien smuggling networks, especially those that
pose a threat to national security. Another coordination mechanism is the
Human Smuggling and Trafficking Center, an interagency entity for
disseminating intelligence and other information to address the separate
but related issues of alien smuggling, trafficking in persons, and
clandestine terrorist travel. Although its establishment was announced in
December 2000, the center was not operational until July 2004.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Table 6: Federal Departments and Components Responsible for Combating
Alien Smuggling
Department Components
Department of Homeland Security U.S. Immigration and Customs Enforcement
o Office of Investigations
o Office of Intelligence
U.S. Customs and Border Protection U.S. Coast Guard
Department of Justice U.S. Attorneys Offices Criminal Division
o Domestic Security Section
o Organized Crime and Racketeering Section
Federal Bureau of Investigation
Department of the Treasury Internal Revenue Service
o Criminal Investigation
Financial Crimes Enforcement Network
Department of State Bureau of Diplomatic Security Bureau for International
Narcotics and Law Enforcement Affairs
Source: GAO, based on discussions with federal officials.
Department of DHS components that have immigration enforcement
responsibilities include ICE, CBP, and the U.S. Coast Guard.
Homeland Security and Its Components
U.S. Immigration and Customs Enforcement
ICE is the largest investigative arm of DHS. ICE's Office of
Investigations has field offices throughout the nation that are supported
by various divisions, including the Smuggling/Public Safety Division,
whose Smuggling/Human Trafficking Branch is responsible for overseeing
programs to identify, locate, disrupt, and prosecute criminal enterprises
that (1) bring, transport, harbor, and smuggle people into the United
States in violation of law or (2) engage in human trafficking. Also,
assigned to U.S. embassies throughout the world, ICE attaches are to work
with their counterparts in foreign law enforcement agencies to help
coordinate
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
investigations and communication, including efforts to follow the money
and seize the profits of smuggling organizations.1
The types of alien-smuggling cases handled by ICE are illustrated in
appendix V, which summarizes recent cases prosecuted in three federal
judicial districts coterminous with the U.S.-Mexico border. Of the total
23 alien-smuggling cases summarized, the majority (15) involved
enforcement actions taken by ICE.
Also, in October 2003, ICE launched Operation ICE Storm in Phoenix, an
initiative to combat human smuggling and the violence it has generated in
Arizona (see app. II). The Office of Investigations and ICE's other major
internal components-Office of Intelligence, Air and Marine Operations,2
Federal Air Marshal Service, Detention and Removal Operations, and Federal
Protective Service-are represented in the initiative.
In August 2004, to enhance efforts aimed at shutting down narcotics and
human-smuggling routes and networks that operate along the U.S.-Canada
border, ICE opened an air and marine facility at Bellingham, Washington,
and announced that similar facilities in four additional northern states
(New York, Michigan, North Dakota, and Montana) were planned.
U.S. Customs and Border Protection
CBP resulted from the merger of most of the legacy U.S. Customs Service
with all the immigration inspectors and the Border Patrol from the former
Immigration and Naturalization Service-a merger designed to establish "one
face at the border."3 The Border Patrol's mission as a front-line defender
is to patrol the border between official ports of entry to deter, detect,
and prevent the entry of terrorists and terrorist weapons, illegal aliens,
and the smuggling of contraband into the United States.
The types of alien-smuggling cases handled by CBP or the Border Patrol are
illustrated in appendix V, which summarizes recent cases prosecuted
1Remarks of Michael J. Garcia (Assistant Secretary, ICE), at the U.S.
Coast Guard Intelligence Coordination Center's Fourth Annual Human
Smuggling and Illegal Migration Conference (Apr. 6, 2004).
2In 2004, Air and Marine Operations was transferred to CBP.
3Our 1993 report provides an historical context of the need for such a
merger. See GAO, Customs Service and INS: Dual Management Structure for
Border Inspections Should Be Ended, GAO/GGD-93-111 (Washington, D.C.: June
30, 1993).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
in three federal judicial districts coterminous with the U.S.-Mexico
border. Of the total 23 alien smuggling cases summarized, almost one-half
(10) involved enforcement actions taken by U.S. Customs and Border
Protection or the Border Patrol.
U.S. Coast Guard
The Coast Guard is tasked with enforcing U.S. immigration law at sea. The
Coast Guard implements this responsibility principally by interdicting
illegal migrants at sea before they reach the shores of the United States.
Through its interdiction and deterrence efforts, the Coast Guard's goal is
to eliminate most of the potential flow of undocumented migrants entering
the country by maritime routes.
After the Coast Guard makes interdictions at sea, disposition of the
migrants may be determined under the Presidential Directive 27 process,
which involves interagency deliberations that include the National
Security Council, the Department of State, the Department of Justice, and
other relevant federal entities.4 Some cases result in criminal
prosecutions in the United States, while others may result in foreign
prosecutions.
Generally, however, most migrants interdicted by the Coast Guard are not
brought into the United States; rather, the migrants are repatriated to
the departure countries.
Department of Justice Department of Justice components that have roles in
combating the smuggling of aliens into the United States include U.S.
Attorneys, the
and Its Components Criminal Division's Domestic Security Section and the
Organized Crime and Racketeering Section, and the Federal Bureau of
Investigation (FBI).
U.S. Attorneys
U.S. Attorneys serve as the nation's principal litigators under the
direction of the Attorney General. There are 93 U.S. Attorneys stationed
throughout the United States, Puerto Rico, the Virgin Islands, Guam, and
the Northern Mariana Islands. U.S. Attorneys are appointed by, and serve
at the discretion of, the President of the United States, with the advice
and consent of the U.S. Senate. Each U.S. Attorney is the chief federal
law enforcement officer of the United States within his or her particular
4The White House; Presidential Directive/NSC 27, Subject: Procedures for
Dealing with Non-Military Incidents; January 19, 1978.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
jurisdiction. Among other responsibilities, U.S. Attorneys are responsible
for prosecuting criminal cases brought by the federal government. For
example, appendix V summarizes recent alien-smuggling cases prosecuted by
U.S. Attorneys in three federal judicial districts.
Criminal Division's Domestic Security Section
Among other functions, the Criminal Division's Domestic Security Section
has collaborative responsibility for criminal immigration offenses.
Domestic Security Section officials said:
o The Domestic Security Section routinely collaborates with U.S.
Attorney's Offices in the investigation and prosecution of alien
smugglers. Nearly all such cases involve investigative activity outside
the United States. The Domestic Security Section, by reason of its close
working relationship with ICE and the State Department's Bureau of
Diplomatic Security investigators abroad, is in a position to provide
immediate legal advice and guidance at the early stages of investigations.
As an investigation develops to the point where venue for prosecution
becomes evident, the appropriate U.S. Attorney's Office is brought into
the investigation. At times, U.S. Attorney's Offices also request the
assistance of the Domestic Security Section in cases where its expertise
in international and intelligence matters would significantly assist
prosecution efforts.
o Domestic Security Section attorneys routinely respond to inquiries
from U.S. Attorney's Offices for legal and policy guidance on matters
relating to immigration crimes and violent crime. For example, the section
works closely with the U.S. Attorney's Office for the Southern District of
Florida on matters related to maritime alien smuggling, especially from
Cuba and Haiti.
Moreover, the officials noted that the Domestic Security Section
participates on the committee that reviews ICE's proposed undercover
investigations involving "sensitive circumstances" that relate to alien
smuggling or immigration fraud violations. Since proposals often involve
investigative activity in multiple districts, the Domestic Security
Section tries to ensure that the appropriate U.S. Attorneys Offices are
fully informed of and support the proposed undercover operational plans
and have agreed to prosecute meritorious cases that are developed.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Criminal Division's Organized Crime and Racketeering Section
According to Justice, the Organized Crime and Racketeering Section has a
role in combating alien smuggling because (1) alien smuggling has become a
sophisticated organized criminal activity and (2) the alien-smuggling
statute and certain immigration fraud offenses are predicate offenses
under the Racketeer Influenced and Corrupt Organizations Act. Justice
noted, for instance, that Organized Crime Strike Force Units in several
U.S. Attorney's Offices, under the supervision of the Organized Crime and
Racketeering Section, prosecute alien-smuggling cases when the offenses
involve the activities of organized crime groups.
Federal Bureau of Investigation
Investigations with a Nexus to Terrorism or Organized Criminal Enterprises
While recognizing that DHS is the primary investigating agency with
respect to alien smuggling, the FBI may play a role in specific
investigations, particularly those with a nexus to terrorism. Also, the
FBI may also get involved when alien smuggling becomes the predicate crime
on an investigation under the Racketeer Influenced and Corrupt
Organizations Act, or when federal officers, such as Border Patrol agents,
are assaulted by smugglers. Moreover, the FBI participates in various
international groups or projects that include a focus on addressing alien
smuggling. Further, FBI legal attaches in other countries participate in
activities related to combating alien smuggling.
At times, alien-smuggling activity may be a component of a terrorist
organization or other criminal enterprise. Regarding terrorist
organizations, the FBI's goal is to identify the global infrastructure of
terrorists' travel-facilitating networks that focus on alien smuggling, as
well as fraudulent document vendors, corrupt foreign government officials,
and suspect travel agencies. If a nexus to terrorism is established for an
identified target, the FBI is to assume the lead investigative role
pursuant to a memorandum of agreement, which was signed in May 2003 by the
Attorney General and the Secretary of Homeland Security and contained a
number of provisions designed to resolve jurisdictional issues and enhance
interagency coordination regarding terrorist-financing investigations.5
The FBI's lead role in these investigations is implemented through Joint
Terrorism Task Forces, which can have participants from
5GAO, Investigations of Terrorist Financing, Money Laundering, and Other
Financial Crimes, GAO-04-464R (Washington, D.C.: Feb. 20, 2004).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Participation in International Groups or Projects
federal, state, and local law enforcement agencies.6 In July 2004, the FBI
provided us the following information:
o Each JTTF member, including assigned DHS agents, has access to
investigative and other pertinent information. For instance, the FBI is to
share intelligence gathered related to alien smuggling and assist in
assessing trends of this activity.
o For the period following September 11, 2001, to date, records indicate
that 5 Joint Terrorism Task Forces reported a total of 11 accomplishments
related to immigration violations. That is, four persons were arrested and
seven were summoned to appear, which initiated their respective
deportation process.
Additionally, in its July 2004 response to our inquiry, the FBI noted that
two investigations were recently opened with a primary focus on the use of
false visas and fraudulent entry documents by terrorist group affiliates.
In its June 2004 response to our inquiries, the FBI cited the following as
examples of its participation in international groups or projects related
to alien smuggling:
o Italian American Working Group. Historically, the Italian American
Working Group has been a "cop-to-cop" forum for U.S. and Italian
authorities (executives, supervisory special agents, investigators,
analysts, etc.) to discuss current law enforcement issues of mutual
interest, such as drug smuggling, organized crime, international
terrorism, computer crime, money laundering, and illegal immigration. The
group meets every other year, alternating between the United States and
Italy.
o Canada-U.S. Cross-Border Crime Forum. Held annually since its
establishment in 1997, the Canada-U.S. Cross-Border Crime Forum allows
Canadian and U.S. authorities to develop coordinated policies for
addressing cross-border crimes. According to Justice, the forum works
through subgroups that deal with various issues, including the targeting
of alien-smuggling organizations. Justice noted that subgroups work on
specific law enforcement issues and objectives
6According to the FBI, the first Joint Terrorism Task Force came into
being in 1980, and the total number of task forces has nearly doubled
since September 11, 2001. Today, there is a Joint Terrorism Task Force in
each of the FBI's 56 main field offices, and additional task forces are
located in smaller FBI offices.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
FBI Attaches in Other Countries
throughout the year and report on their progress and make recommendations
at the annual meeting of the forum.
o Project Bridge. Initiated in 1999 and led by Interpol, Project Bridge
seeks to collect information on organized-crime groups and criminal
enterprises involved with alien-smuggling activity. The project provides
strategic intelligence analysis to identify human-smuggling trends and
routes. Also, the project provides a forum for the international law
enforcement community to identify issues, discuss cases, and develop
collaborative investigative and legislative efforts. Besides the FBI,
other U.S. participants are the Department of Justice, ICE, and U.S.
Customs and Border Protection. Also, in addition to the United States,
participating countries include Australia, Canada, Great Britain, member
states of the European Union, and countries in central Europe and Asia.
According to the FBI, most (if not all) of the agency's legal attaches
overseas are involved in activities related to combating alien smuggling.
Routinely, for instance, legal attaches liaise with law enforcement
agencies within the respective countries to target and address
aliensmuggling problems. Some examples cited by the FBI in its June 2004
response to our inquiry included the following:
o Legat Athens organized a visitation of a Macedonian delegation of
judges, prosecutors, and investigators. There have been attempts by
Macedonians to illegally enter the United States through the use of false
documents-that is, documents that have been found to be counterfeit or
legitimate documents with the pictures altered. The Macedonians are also
in the process of implementing more aggressive laws to combat this issue.
o Legat Bangkok is involved in multiple joint investigations targeting
alien-smuggling organizations based in Bangkok and addressing
aliensmuggling activities transiting through Thailand.
o Legat Rome has a priority interest in alien smuggling from the Balkan
countries, particularly Albania. For the sole purpose of prostitution,
women from Ukraine, Moldova, Belarus, and other Eastern European countries
are trafficked through the Balkans for destinations throughout Western
Europe, Great Britain, and the United States.
Also, the FBI's June 2004 response to our inquiry indicated that FBI
officials had recently met with host government officials in Albania and
Greece to address various crime problems, including alien smuggling and
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Department of the
Treasury and Its
Components
Internal Revenue Service-Criminal Investigation
trafficking of persons. As a result, the FBI noted that it will seek to
establish a task force in Albania as part of an "upstream" effort to
address crimes that affect the United States before problems become
insurmountable.
Department of the Treasury components that have roles in combating the
smuggling of aliens into the United States include Internal Revenue
Service-Criminal Investigation and the Financial Crimes Enforcement
Network (FinCEN).
Criminal Investigation (CI) is the law enforcement arm of the Internal
Revenue Service (IRS). At times, IRS-CI has conducted alien-smuggling
investigations jointly with ICE, particularly in areas of high-volume
illegal immigration, such as Texas, Arizona, and New York. In June 2004,
in response to our inquiry, IRS-CI provided us the following examples of
alien-smuggling investigations conducted jointly with ICE (or legacy INS):
o Valente Sillero, et al. (Austin, Tex.). From 1998 through May 2002,
Sillero and his associates in Austin were involved in smuggling more than
1,000 aliens from Mexico into the United States, charging from $800 to
$2,200 a head. Sillero's organization smuggled not only Hispanic aliens
but also Middle Eastern aliens, although for a higher fee. IRS-CI
estimates that Sillero's organization grossed $2 million in a 2-year
period. Most of the smuggling fees were paid in cash, although a portion
was paid by wire transmittals made by the aliens' relatives in the United
States. In 2002, Sillero was sentenced to 120 months of imprisonment.
Seized assets included cash ($10,000), a 2002 Solara ($24,000), a Harley
Davidson motorcycle ($10,000), and two tow trucks ($8,000 and $5,000).
o Robert and Sheery Lu Porges (New York, New York). From 1993 through
September 2000, Robert Porges (a prominent Manhattan immigration lawyer)
and his wife, Sheery Lu Porges, aided Chinese smugglers by using their law
firm to fraudulently create asylum requests. In that period of time, more
than 1,000 Chinese aliens were smuggled into the country, with the
Porgeses charging $40,000 to $50,000 per alien. Further, the Porgeses
filed false income tax returns and paid their employees in cash, avoiding
all withholdings. On August 9, 2002, Robert and Sheery Lu Porges were each
sentenced to 97 months of imprisonment and were also ordered to forfeit to
the government $6 million through the sale of assets.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
o Richard "Trigger" Jones (Abilene, Tex,). Jones was a Deputy U.S.
Marshal who used his position, from 1996 through 2002, to obtain
Immigration and Naturalization "parole" documents for several aliens whom
he had encouraged or induced to remain in the United States on the false
premises that they would be "law enforcement confidential informants."
Jones and others made the aliens provide manual labor at various places in
and near Abilene. Jones transported the aliens for this purpose, and he
also filed false tax returns for 1997 through 2002. In 2004, Jones was
sentenced to 24 months of imprisonment and fined $100,000.
According to IRS-CI case agents, the smuggling fees paid by aliens often
are in currency and, therefore, are very difficult to track. Agents noted,
for instance, that currency proceeds from smuggling on the southwest
border are simply "bulk carried" back to Mexico where the smugglers
(called coyotes) have trusted relationships.
Financial Crimes Enforcement Network
FinCEN, which was established in 1990 to help combat money laundering and
other financial crimes, does not initiate or carry out any investigations
on its own. Rather, by serving as a central source for financial
intelligence information and analysis, FinCEN supports the investigative
and prosecutive efforts of numerous law enforcement agencies. In doing so,
FinCEN has access to a variety of commercially maintained databases, as
well as the investigative-case databases of various federal law
enforcement agencies.7 Also, FinCEN administers the largest financial
transaction reporting system in the world, which is based on recordkeeping
and reporting requirements mandated or authorized under the Bank Secrecy
Act, as amended.
Enacted in 1970, the Bank Secrecy Act-Public Law 91-508, 84 Stat. 1114
(1970)-provides the U.S. government's framework for preventing, detecting,
and prosecuting money laundering. Despite its name, the Bank Secrecy Act,
among other things, is a record-keeping and reporting law. As originally
enacted, the legislation required, for example, the maintenance of records
by financial institutions and the reporting of certain domestic currency
transactions and cross-border transportation of currency. A purpose of the
Bank Secrecy Act is to prevent financial institutions from being used as
intermediaries for the transfer or deposit of money derived
7GAO, Money Laundering: FinCEN's Law Enforcement Support Role Is Evolving,
GAO/GGD-98-117 (Washington, D.C.: June 19, 1998).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
from criminal activity and to provide a paper trail for law enforcement
agencies in their investigations of possible money laundering. Over the
years, the Bank Secrecy Act has evolved into an important tool to help
deter money laundering, drug trafficking, terrorist financing, and other
financial crimes. For instance, passage of the USA PATRIOT Act in 2001
expanded provisions to prevent, detect, and prosecute terrorist financing
and extended anti-money laundering requirements to financial service
providers previously not covered.8
For the period October 2000 through August 2004, FinCEN reported that it
provided analytical support for a total of 201 alien-smuggling cases. As
table 7 indicates, the large majority of these cases involved support for
current or legacy DHS components.
Table 7: Analytical Support Provided by FinCEN for Alien-Smuggling Cases (Oct.
2000 through Aug. 2004)
Number of Number of
Agency receiving FinCEN assistance Number of subjects FinCEN
cases hours
Department of Homeland Securitya 184 1,147 2,616
Department of Justice-Federal Bureau of 7 20
Investigation
Department of Labor-Inspector General 3 28 No data
Department of State-Bureau of Diplomatic 3 5
Security
State of Maryland High Intensity Drug 1 17 No data
Trafficking Area Task Force
Department of the Treasury-IRS-CI 1 9 No data
Social Security Administration-Inspector 1 2
General
Air Force Office of Special Investigations 1 1
Total 201 1,229 2,927
Source: FinCEN data.
aThe Department of Homeland Security figures include cases of the U.S.
Immigration and Customs Enforcement, U.S. Customs and Border Protection,
and the legacy Immigration and Naturalization Service.
According to FinCEN, the value of its contributions and the significance
of cases may not be readily apparent because many cases involve long lag
times between investigation and successful prosecution. Generally,
however, the way in which FinCEN provided value to the majority of these
investigations involved identifying and tracking subjects, accounts, and
businesses through analysis of Bank Secrecy Act data and the available
8Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act, Pub. L. No. 107-56, 115 Stat. 272
(2001).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
commercial and law enforcement databases. Also, FinCEN noted that it has
helped investigators understand more complex money-laundering
methodologies, such as informal transfer systems, that may be associated
with alien smuggling.
Department of State Department of State components that have roles in
combating the smuggling of aliens into the United States include the
Bureau of
and Its Components Diplomatic Security and the Bureau for International
Narcotics and Law Enforcement Affairs.
Bureau of Diplomatic Security
The Bureau of Diplomatic Security, the law enforcement arm of the
Department of State, has agents posted in over 160 countries worldwide.
Diplomatic Security has statutory responsibility for protecting the
integrity of U.S. passports and visas-widely considered to be the most
valuable identity and travel documents in the world. Investigations of
passport and visa fraud often show direct links to alien smuggling. A
State Department fact sheet (dated May 12, 2004) stated:
o Nearly 7 million U.S. passports are issued every year. Last year,
Diplomatic Security investigated 3,200 new cases of passport fraud and
made 642 arrests. Currently there are more than 400 active arrest warrants
for passport fraud.
o Also, visa fraud is coming under closer scrutiny after September 11.
Such fraud is most commonly committed not by counterfeiting but through
the sale, or facilitating the issuance process for, unqualified visa
applicants.
o Last year, Diplomatic Security arrested 90 individuals on visa fraud
charges. Of these, 16 arrests were the result of investigations of
largescale visa malfeasance operations at 4 locations-the U.S. embassies
in Colombo (Sri Lanka) and Prague (Czech Republic) and the U.S. consulates
in Nuevo Laredo and Ciudad Juarez (Mexico).
The Colombo case involved the payment of hundreds of thousands of dollars
by people in Sacramento, California, and elsewhere to two U.S. citizen
employees of the American embassy in exchange for the issuance of visas to
various foreign nationals, primarily from Vietnam and India. The 2-year
investigative case-which was initially indicted on May 1, 2003, and
resulted in guilty pleas on April 30, 2004-reflected multi-agency
cooperation that involved Diplomatic Security and the State Department's
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Bureau of Consular Affairs; the governments of Sri Lanka, Vietnam, and
Fiji; the U.S. Attorney's Office for the Northern District of California;
the Sacramento Joint Terrorism Task Force; FBI; ICE; and state and local
law enforcement in California, Oregon, and Virginia.
Announcing the guilty pleas, the Department of Justice's press release
noted that the two employees-a State Department foreign service officer
and her husband, who had been employed in the consular section of the
American embassy in Sri Lanka-each faced a minimum of at least 5 years in
prison, a 3-year term of supervised release, and a substantial fine.9
Also, Justice reported that the couple had agreed to forfeit two homes
(one in Oregon and another in Colorado); a sum of $361,766, including
funds seized from bank accounts in California, Oregon, Washington, and
Virginia; and nearly $90,000 in cash recovered from the Oregon home and
from the pillows of a love seat in Sri Lanka.
In response to our inquiry regarding efforts to follow the money trail in
this case, bureau officials explained that:
o Diplomatic Security investigated the financial gains associated with
this conspiracy by using established relationships with both domestic and
foreign law enforcement agencies. Through the use of grand jury subpoenas,
Diplomatic Security acquired evidence and leads into banking and
investment firms located in the United States and abroad. Additional
ill-gotten gains were discovered through intelligence analysis and law
enforcement techniques, such as interviews, surveillance, and trash
recovery.
o Also, Diplomatic Security performed financial analyses of all targets
in the case, including several "visa brokers." Through the tracking of
assets and proceeds, targets were found to be involved in money
laundering, hiding profits, and using proceeds to invest and make mortgage
payments. Further, by working with Justice's Office of International
Affairs, requests were sent to both Sri Lanka and Fiji for information
from banks, and both countries provided helpful responses.
9Department of Justice press release, "Two U.S. State Department Employees
Plead Guilty in Bribes-For-Visas Scheme" (Apr. 30, 2004).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
In sum, according to the Bureau of Diplomatic Security, the Colombo case
exemplifies how document fraud investigations help dismantle illegal
smuggling rings.
Bureau for International Narcotics and Law Enforcement Affairs
Migrant Smuggling and Trafficking Interagency Working Group: An Overarching
Coordination Mechanism
While the Bureau for International Narcotics and Law Enforcement Affairs
does not have arrest or other law enforcement authority, its role is to
help develop policies and programs (e.g., technical assistance and
training) to combat international narcotics trafficking and other crimes,
including alien smuggling. For instance, the State Department's fiscal
year 2005 budget justification reported that the bureau, among other
activities (1) had provided law enforcement training on combating alien
smuggling to more than 300 foreign officials in the past 3 years and (2)
will work with international partners to interdict and halt alien
smuggling as far from U.S. borders as possible. The budget justification
further noted that the bureau anticipated providing support to foreign
governments that have chosen to ratify and implement the UN Convention
against Transnational Organized Crime and its protocol on migrant
smuggling.
In addition to providing foreign governments with training and other
material assistance specifically targeted to counter alien smuggling and
trafficking in persons, the Bureau for International Narcotics and Law
Enforcement Affairs works with various U.S. federal law enforcement
agencies to strengthen the institutional capacity of selected countries
and international organizations to fight crime. State Department officials
noted that strengthening the underlying rule of law and justice sector
institutions-such as legal codes, court systems, prosecutorial
capabilities, investigative capacity, and interagency cooperation-enhances
the ability to combat alien smuggling and trafficking in persons, even
when assistance efforts are not targeted exclusively against these crimes.
In combating alien smuggling, an overarching coordination mechanism to
help avoid duplication of efforts and ensure that available resources are
effectively leveraged is the National Security Council's Migrant Smuggling
and Trafficking Interagency Working Group, which is cochaired by State and
Justice and includes participants from DHS and the intelligence community.
The Interagency Working Group has a targeting subgroup, whose role is to
identify for investigation the most dangerous international
alien-smuggling networks, especially those that pose a threat to national
security. Generally, top priority is to be given to targeting smugglers
who are suspected of having links to terrorism, whether or not the
smugglers are aware of those links. Such links may include special
interest aliens,
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
that is, aliens from countries hostile to the United States or where
global terrorist groups are known to have operated or recruited. Also, the
subgroup may recommend actions other than investigations. For example, the
subgroup may recommend intelligence gathering on an identified target or
recommend that the Department of State use diplomatic means to convince a
foreign government to take its own action against a target.
As mentioned previously, if a nexus to terrorism is established for an
identified target regarding terrorist financing investigations, the FBI is
to assume the lead investigative role pursuant to a memorandum of
agreement, which was signed in May 2003 by the Attorney General and the
Secretary of Homeland Security and contained a number of provisions
designed to resolve jurisdictional issues and enhance interagency
coordination.10 The FBI's lead role in these investigations is implemented
through Joint Terrorism Task Forces, which can have participants from
federal, state, and local law enforcement agencies.
Since 2002, according to Justice and the FBI, the efforts of the
Interagency Working Group, its targeting subgroup, and investigative
agencies have resulted in the apprehension and prosecution of leaders
(more than 15) of major smuggling organizations. ICE was the lead
investigative entity in the majority of the targeted cases. In its May
2005 comments on a draft of this report, DHS noted that several of the
cases had a nexus to terrorism and that ICE had the lead investigative
role on all but one of these cases. DHS explained that the May 2003
memorandum of agreement pertained to financial investigations and not to
alien-smuggling investigations. Also, in its May 2005 comments on a draft
of this report, the State Department noted that ICE has been the lead
investigative agency in many terrorismrelated investigations,
notwithstanding the May 2003 memorandum of agreement. State explained that
these investigations had considerable overseas operations, and ICE had the
legacy resources, experience, and capabilities.
10GAO, Investigations of Terrorist Financing, Money Laundering, and Other
Financial Crimes, GAO-04-464R (Washington, D.C.: Feb. 20, 2004).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
Human Smuggling and Trafficking Center: Operational Potential Not Yet Fully
Achieved
The Human Smuggling and Trafficking Center is an interagency coordination
entity designed to address the separate but related issues of alien
smuggling, trafficking in persons, and clandestine terrorist travel. The
center has had an extended startup history. State and Justice announced
the center's establishment (with a slightly different predecessor name) as
early as December 2000.11 However, because of subsequent events-the
attacks of September 11, 2001, which resulted in a redirection of
personnel and resources and a reorganization of the U.S. government-the
center did not become operational until July 2004.
The center's current charter was signed on behalf of the Secretary of
State on May 19, 2004, and on behalf of the Attorney General and the
Secretary of Homeland Security on July 9, 2004. The charter states:
o Federal agencies have acknowledged that intensified efforts, together
with enhanced interagency coordination, are needed to support more
effective enforcement, diplomatic, and other actions to counter smugglers
and traffickers.
o The center's efforts will be fundamentally supportive rather than
directive in nature, consisting primarily of facilitating the
dissemination of intelligence, preparing strategic assessments,
identifying issues that would benefit from enhanced interagency
coordination or attention, and coordinating or otherwise supporting agency
or interagency efforts in appropriate cases.
o As such, the center will serve as an all-source fusion entity and
clearinghouse, with a view to ensuring that the entire community of
interest receives all useful information relating to migrant smuggling,
trafficking in persons, and clandestine terrorist travel.
In December 2004, the center was formally established by Section 7202 of
the Intelligence Reform and Terrorism Prevention Act of 2004.12 In
addition to providing a statutory underpinning for the charter, the 2004
act added
11The White House, Office of the Press Secretary, Fact Sheet, Migrant
Smuggling and Trafficking in Persons Coordination Center (Washington,
D.C.: Dec. 15, 2000). The fact sheet reported that "Today, in furtherance
of the President's International Crime Control Strategy, the Departments
of State and Justice announced the establishment of a Migrant Smuggling
and Trafficking in Persons Coordination Center."
12Pub. L. No. 108-458, 118 Stat. 3638, 3813 (Dec. 17, 2004).
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
several additional mandates to the center. Specifically, the act requires
the center to
o serve as the focal point for interagency efforts to address terrorist
mobility;
o serve as a clearinghouse with respect to all relevant information from
all federal government agencies in support of the U.S. government strategy
to prevent terrorist travel, human smuggling, and trafficking in persons;
o ensure cooperation among all relevant policy, law enforcement,
diplomatic, and intelligence agencies of the federal government to improve
effectiveness, and to convert all information available to the federal
government relating to clandestine terrorist travel, human smuggling, and
trafficking in persons into tactical, operational, and strategic
intelligence that can be used to combat such illegal activities; and
o prepare and submit to Congress an annual strategic assessment
regarding vulnerabilities in the United States and foreign travel system
that may be exploited by international terrorists, human smugglers and
traffickers, and their facilitators.
In addition, as part of its mission to combat terrorist travel, the center
is to work to support the efforts of the National Counterterrorism Center.
According to State Department officials, the Human Smuggling and
Trafficking Center is to have a strong foreign focus, and information
synthesized by the center will support diplomatic efforts and U.S. law
enforcement cooperation with foreign agencies, as well as inform State's
Bureau of International Narcotics and Law Enforcement Affairs in providing
assistance programs to strengthen certain foreign agencies. For example,
as of late July 2004, State reported that the center's accomplishments
included (1) preparing a strategic assessment on alien smuggling from a
certain South American country and (2) proposing an action plan that the
United States presented to the G813 to address
13Annual G8 summits bring together the leaders of Canada, France, Germany,
Italy, Japan, Russia, the United Kingdom, and the United States. In
addition, the European Union participates and is represented by the
President of the European Council and the President of the European
Commission. The annual meetings cover a broad-based agenda of
international economic, political, and social issues.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
fraudulent document production and alien smuggling in a certain Asian
country.
Also, according to State, the center serves as the venue for interagency
meetings on terrorist mobility, alien smuggling, and trafficking issues,
including hosting the targeting subgroup of the Interagency Working Group.
State recognized that partly because the center had only recently become
operational and was still being staffed,14 there is a need to more fully
establish procedures for processing and sharing intelligence, law
enforcement, and other information. For instance, State provided
explanatory details substantially as follows:
o A significant amount of the information handled by the center will be
highly classified or originator controlled and may not be able to be used
in its original form by law enforcement. Thus, the center will explore
methods for redacting or summarizing information to be shared in
appropriate cases.
o Also, the center is developing relationships with international
organizations, such as Interpol, as well as with foreign law enforcement,
intelligence, and immigration authorities to exchange information more
efficiently. If negotiated agreements are necessary, estimating time
frames is difficult.
As mentioned previously, as of March 2005, the center's staffing level was
only about one-half of the total full-time-equivalent positions
anticipated to be filled by the end of calendar year 2005. In this regard,
it should be noted that section 7202(d) of the Intelligence Reform and
Terrorism Prevention Act requires the President to transmit to Congress a
report that, among other things, describes the staffing and resource needs
of the
14As of July 2004, center staffing consisted of eight full-time-equivalent
personnel-that is, three full-time State Department personnel (an officer
and an information technologist detailed from the Bureau of International
Narcotics and Law Enforcement Affairs and an intelligence analyst detailed
from the Bureau of Diplomatic Security); four full-time DHS personnel (a
Director nominee designate, two senior special agents, and one analyst);
one part-time DHS senior special agent; and one part-time Central
Intelligence Agency senior analyst. In March 2005, State Department
officials provided us updated information, which indicated that the
center's staffing level was approximately one-half of the total 24
fulltime-equivalent positions anticipated to be filled by the end of
calendar year 2005.
Appendix III: Federal Agencies Responsible for Combating Alien Smuggling
center.15 The required report is important because the center's staffing
and resource needs may affect its ability to perform mandated functions,
such as preparing and submitting to Congress an annual strategic
assessment regarding vulnerabilities in the United States and foreign
travel system that may be exploited.
15Section 7202(d) specified that the report shall be transmitted not later
than 180 days after enactment of the act-that is, not later than June 15,
2005. By memorandum dated April 21, 2005, the President assigned this
reporting function to the Secretary of State. The memorandum noted that
the reporting function shall be coordinated with the Attorney General and
the Secretary of Homeland Security.
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce the Flow
of Smuggled Aliens into the United States
Federal efforts to work with governments of source and transit countries
to prevent illegal entries into the United States include participation in
both bilateral and multilateral agreements and activities. While not
exhaustive, this appendix provides an overview of various agreements and
activities, including efforts to identify and seize smugglers' funds or
assets located abroad.
Federal bilateral efforts to work with foreign governments include
focusing on source and transit countries, including border nations (Mexico
and Canada), and using the skills and contacts of federal agents posted
abroad to address issues upstream.
Federal Bilateral
Efforts to Work with Foreign Governments
Bilateral Agreements Generally Cover a Broad Range of Criminal Activity
The United States has negotiated and signed more than 50 bilateral mutual
legal assistance treaties (MLATs) with law enforcement partners around the
world, according to the Department of Justice. Such treaties-which are a
mechanism for obtaining evidence in a form admissible in a
prosecution-provide for a broad range of cooperation in criminal matters,
such as locating or identifying persons, taking testimonies and
statements, obtaining bank and business records, and assisting in
proceedings related to immobilization and forfeiture of assets. Justice's
Office of International Affairs coordinates the gathering of international
evidence and, in concert with the State Department, engages in the
negotiation of new MLATs.
According to the State Department, the U.S. government has few bilateral
agreements that solely address alien smuggling; rather, the agreements
cover a broad range of criminal activity. As examples of bilateral
agreements that have alien-smuggling provisions, State noted that the
cross-border accord with Canada and the accord with Cuba have
aliensmuggling elements, as do agreements with the government of The
Bahamas concerning cooperation in maritime law enforcement (which entered
into force June 29, 2004) and with the government of the Dominican
Republic concerning maritime counterdrug operations. Also, State noted
that some extradition treaties that apply the concept of mutual
criminality allow extradition for the crime of alien smuggling.
U.S.-Mexico Bilateral In March 2002, the U.S. and Mexican governments
adopted a plan-the
Efforts U.S.-Mexico Border Partnership Agreement-designed to increase
border security while still facilitating the legitimate flow of people and
goods. One outcome of the agreement was establishment of a binational
Alien
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
Smuggling and Trafficking Task Force, with a lead role designated for
ICE's office in Mexico City. According to ICE, the task force has evolved
to a point whereby information sharing is now standard operating procedure
for both ICE and Mexican law enforcement and intelligence agencies. ICE
officials noted, for example, that Mexican authorities have provided
information useful in compiling target lists of smugglers to be
investigated under Operation ICE Storm.
Another outcome of the partnership agreement was initiation of a pilot
program in November 2002, the Guide Identification and Prosecution
Program. The pilot program was initiated by the U.S. Border Patrol's El
Centro Sector (located in the southern judicial district of California)
and Mexico's Attorney General's Office (the Procuraduria General de la
Republica, or PGR). The program's objective is to target alien smugglers
and turn them over to Mexican authorities for prosecution, particularly if
prosecution in the United States is declined. For instance, when a
smuggler is interdicted in the United States and the U.S. Attorney's
Office declines prosecution, Mexican authorities are to review the case
and-if the case is deemed prosecutable in Mexico-the El Centro Border
Patrol Sector is to turn over any applicable evidence or casework
information.
According to El Centro Sector officials, the prosecution program was
needed because the U.S. Attorney's Office in the Southern District of
California was unable to handle all of the potential
immigrationenforcement cases. Equally important, both the U.S. and Mexican
governments were mutually concerned with preserving lives by identifying
and prosecuting unscrupulous "guides or coyotes" who may lead migrants to
death or harm in the harsh border terrain.
For the approximately 2-year period from inception of the pilot Guide
Identification and Prosecution Program in November 2002 to November 2004,
the El Centro Border Patrol Sector has reported referring 80
aliensmuggling cases to Mexican authorities. On the basis of these
referrals, Border Patrol officials told us that Mexican federal
authorities have obtained 31 convictions with jail sentences ranging from
1 to 6 years. According to Border Patrol headquarters officials, the Guide
Identification and Prosecution Program is important and useful in
combating alien smuggling because the program directly focuses on "foot
guides." The officials explained that foot guides who have knowledge of
routes through deserts or other harsh terrain on the border are far fewer
in number than truck drivers and are much more difficult to replace or
recruit. Thus, the officials noted that prosecuting the foot guides helps
to dismantle smuggling organizations.
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
Regarding the future of the program, in August 2003, the Commissioner of
CBP approved expansion to three additional Border Patrol sectors-San
Diego, Tucson, and Yuma. However, as of January 2005, the program had not
been expanded. According to the Assistant Chief Patrol Agent of the El
Centro Sector, the government of Mexico supports expansion but faces
resource issues. To help facilitate expansion, the Assistant Chief Patrol
Agent suggested that it may be necessary for officials from CBP's Office
of International Affairs to meet with Mexican government representatives
in Mexico City.
Also, to increase bilateral coordination and intelligence sharing, CBP
officials noted that every southwest border sector has a Mexican Liaison
Unit to work full-time with counterparts in Mexico.
U.S.-Canada Bilateral Efforts
U.S.-Canada bilateral efforts to address cross-border crimes include the
formation of multi-agency Integrated Border Enforcement Teams. Originally
developed in 1996 to target cross-border criminal activity between British
Columbia and Washington state, the teams have since expanded to cover
strategic locations across the entire northern border. Core participants
in these multi-agency teams are ICE, CBP, U.S. Coast Guard, Royal Canadian
Mounted Police, Canada Customs and Revenue Agency, and Citizenship and
Immigration Canada. Additional participants are municipal and provincial
law enforcement agencies. Besides targeting trafficking in illegal drugs,
weapons, vehicles, liquor, and tobacco, the integrated teams have reported
successful intercepts of criminal networks attempting to smuggle illegal
migrants across the border.
Another bilateral effort is the Canada-U.S. Cross-Border Crime Forum. The
purpose of the forum, held annually since its establishment in 1997, is to
allow Canadian and U.S. authorities to develop coordinated policies for
addressing cross-border crimes. According to Justice, the forum works
through subgroups that deal with various issues, including the targeting
of alien-smuggling organizations. Justice noted that subgroups work on
specific law enforcement issues and objectives throughout the year and
report on their progress and make recommendations to the Canadian Deputy
Prime Minister and the U.S. Attorney General at the annual meeting of the
forum.
In December 2001, the Canadian and U.S. governments signed the Smart
Border Declaration and an associated 30-point action plan designed to
enhance the security of the two nations' shared border while facilitating
the legitimate flow of people and goods. The action plan reflected
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
continuing support for Integrated Border Enforcement Teams and the
Canada-U.S. Cross-Border Crime Forum.
Federal Assistance to Ecuador and Other Countries
In recent years, recognizing that Ecuador had become a major source and
transit country for aliens entering the United States, the State
Department's Bureau for International Narcotics and Law Enforcement
Affairs has provided technical assistance to Ecuador for strengthening its
investigative and prosecutorial capacity to combat alien smuggling. For
example, the bureau's budget justification for fiscal year 2005 reported
that the first-ever, U.S.-funded alien smuggling vetted unit was
established in Quito, Ecuador; computers were purchased for use at the
international airport in Quito; and funding was also provided to detail a
team of attorneys to Ecuador to provide guidance on strengthening
aliensmuggling legislation. Further, the 2005 budget justification noted
plans for creating one or more additional alien-smuggling vetted units in
the Dominican Republic, Guatemala, or Mexico and that the unit(s) would be
trained in the areas of investigative techniques, consensual monitoring,
anticorruption, and antismuggling.
As mentioned previously, in addition to providing foreign governments with
training and other material assistance specifically targeted to counter
alien smuggling and trafficking in persons, the Bureau for International
Narcotics and Law Enforcement Affairs works with various U.S. federal law
enforcement agencies to strengthen the institutional capacity of selected
countries and international organizations to fight crime. In this regard,
State Department officials noted that strengthening the underlying rule of
law and justice sector institutions-such as legal codes, court systems,
prosecutorial capabilities, investigative capacity, and interagency
cooperation-enhances the ability to combat alien smuggling and trafficking
in persons, even when assistance efforts are not targeted exclusively
against these crimes.
Also, U.S. Customs and Border Protection officials said that CBP has been
proactive in pushing out the border. As an example, the officials noted
that BORTAC--a specially trained tactical unit of the Border Patrol-has
helped Honduras plan and put into operation an organization with border
police-type responsibilities.
Federal Law Enforcement Another upstream effort by the U.S. government to
combat alien Agents at U.S. Embassies smuggling and other transnational
crime is the posting of federal law and Consulates enforcement agents
abroad to work with their counterparts in foreign law
enforcement agencies:
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
"In order to develop prosecutable criminal cases against principals in
international aliensmuggling organizations, the United States must have an
effective investigative capability in various parts of the world. ...
Exact capabilities will vary by country, but United States law enforcement
agents and prosecutors stationed at United States embassies and consulates
often have excellent working relationships with their counterparts.
Frequently, United States law enforcement personnel posted abroad can
obtain information or evidence informally. If formal mutual assistance is
needed, for example, if the evidence was not obtained in an admissible
form, the information or evidence gathered informally may provide the
basis for drafting a formal request."1
As discussed in appendix III, federal agencies with overseas postings
include not only the State Department's Bureau of Diplomatic Security, but
also the FBI and ICE.
ICE has 50 overseas offices (attaches). According to ICE, to reduce the
flow of aliens into the United States, federal agents posted abroad are a
necessary element in planning operations and exchanging case-related
intelligence between ICE investigative units and foreign law enforcement.
ICE headquarters officials said that human smuggling and related criminal
activities are directly connected to the activities of organizations
operating throughout the Americas (South America, Central America, and
Mexico), as well as South Africa. The officials noted, for example,
that-as a result of increased coordination, training, and communications
led by ICE with the governments of Colombia, Guatemala, and South
Africa-new investigations have been initiated into human-smuggling
organizations. Also, the officials noted that the ICE attache in Ecuador
has made progress in addressing ICE's mission of extending the border by
dismantling human-smuggling organizations abroad.
Regarding multilateral efforts to address people smuggling, in December
2000, the United States and over 120 other countries signed the UN
Convention against Transnational Organized Crime and more than 75 of these
countries signed a supplementary agreement-the Protocol against the
Smuggling of Migrants by Land, Sea and Air. The main purpose of the
convention and the protocol is to enable the international community to
better combat organized crime by harmonizing nations' criminal laws and
promoting increased cooperation. Before entering into force, the
Multilateral Protocol on Migrant Smuggling
1Michael Surgalla and Arthur Norton, "International Aspects of Criminal
Immigration Enforcement," United States Attorneys' Bulletin, September
2003.
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
convention had to be ratified by at least 40 countries. Nations may be a
party to the convention only but not to the protocol only.
The convention and the protocol have entered into force, although the
United States has signed but has yet to ratify the convention. According
to Justice, the entry into force of the convention and the protocol has
increased the effectiveness of immigration enforcement efforts with regard
to several countries. For instance, the fact that the protocol is now in
force in a particular country can be used to induce that country to assume
its responsibilities by accepting the return of its nationals and
prosecuting smugglers under its criminal laws. Also, Justice noted that,
once the United States becomes a party to the protocol, certain
extradition treaties that the United States has with other state parties
will be deemed amended to include alien-smuggling offenses and travel
document fraud as defined in the protocol. In addition, Justice noted that
the United States will be able to utilize the protocol's mutual legal
assistance provisions in dealing with those state parties that currently
do not have a bilateral treaty with the United States for such assistance.
According to some estimates, alien smuggling globally generates billions
of dollars in illicit revenues annually. How much of the total involves
aliens smuggled into the United States is not known, although the United
States is often a primary destination country. Also, according to ICE
officials, much of the U.S.-related smuggling revenues either may not be
paid in this country or, if paid here, may be transported or transmitted
abroad quickly. As such, federal efforts to combat alien smuggling by
following the money trail frequently may present investigators and
prosecutors with opportunities and challenges related to identifying and
seizing funds or assets not located in the United States. The MLAT process
is one tool available to help investigators and prosecutors meet these
opportunities and challenges.
In March 2005, to get a sense of the extent to which federal law
enforcement agencies were using the MLAT process to follow the money trail
abroad in alien smuggling cases, we contacted Justice's Office of
International Affairs. In reference to alien-smuggling cases, we asked for
information regarding the number of requests made to foreign governments
for assistance through provisions of an applicable MLAT or
Federal Efforts to Identify and Seize Smugglers' Funds or Assets Abroad
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
by a letter rogatory.2 According to the Deputy Director, the number of
outgoing requests for formal law enforcement assistance in aliensmuggling
cases is few in comparison with requests in cases of drug trafficking,
money laundering, fraud, and various other offenses. For matters
considered to be alien-smuggling cases, the Deputy Director noted that it
would be very difficult to quantify the exact number of requests made to
foreign countries. In explanation, the Deputy Director commented
substantially as follows:
o The Office of International Affairs' database was created a number of
years ago to track an extremely large volume of international requests.
The database was not originally designed to include a category of "alien
smuggling." This category designation was added to the database within
only the last few years. Under this specific category, the database
currently shows 10 pending outgoing requests and 3 closed outgoing
requests.
o Further, the database has an "immigration violation" category, which
would include alien smuggling and has existed for some time. Currently,
the database shows over 160 closed cases in this category.
Also, we asked ICE headquarters for information regarding formal requests
made in attempts to follow the money trail on alien-smuggling
investigations that have extended overseas. That is, we asked how many
MLAT requests were made in fiscal years 2003 and 2004, to which countries,
and what have been the results in terms of assets tracked or seized. The
Office of Investigations' Asset Forfeiture Unit responded that it had no
way of determining the number of MLAT requests. ICE officials noted,
however, that none of ICE's reported seizures from alien-smuggling cases
in fiscal year 2004 ($7.3 million) and the first 6 months of fiscal year
2005 ($7.8 million) were made abroad.
We made a similar inquiry for information from the State Department's
Bureau of Diplomatic Security. In response, the bureau noted that it has
been a full member of the Department of Justice's Asset Forfeiture Program
since October 1, 2004, and-after admission to the program-has taken steps
to prepare and encourage agents to consider forfeiture
2A letter rogatory is a method of obtaining assistance from abroad in the
absence of a treaty or executive agreement. Essentially, this formal
device is a request from a court in one country to a court in another
country to seek international judicial assistance in obtaining testimony
or other evidence.
Appendix IV: Federal Efforts to Work with Foreign Governments to Reduce
the Flow of Smuggled Aliens into the United States
whenever possible, including seeking the seizure and forfeiture of assets
abroad. Additional comments were substantially as follows:
o Because participation in Justice's Asset Forfeiture Program is
relatively new, the bureau has submitted only one MLAT request seeking the
seizure and forfeiture of illegal assets overseas, and this request was
still pending as of March 2005. However, the bureau currently is
conducting numerous criminal investigations that most likely will result
in the submission of several more MLAT requests to various foreign
countries to seek the seizure and forfeiture of illegal funds and assets.
o The MLAT process sometimes may be very time consuming and on occasion
has discouraged Assistant U.S. Attorneys from pursuing forfeiture of
illegal assets via an MLAT request. In the absence of an MLAT, the letter
rogatory process may be even more burdensome and time consuming and the
results less certain.
The bureau noted that in addition to utilizing the MLAT process, there are
other procedures for gathering evidence or seizing the proceeds of a
crime. For example, as part of a plea agreement, a defendant may consent
to repatriate overseas assets to the United States without the involvement
of the host country. Finally, the bureau emphasized that the ability to
equitably share with foreign law enforcement agencies a percentage of the
proceeds seized based on their assistance and participation in
investigations is a very useful tool in securing the seizure and
forfeiture of illegal assets overseas.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal District
Courts
This appendix summarizes selected alien-smuggling cases prosecuted in
federal district courts in three districts-the District of Arizona, the
Southern District of California, and the Southern District of Texas. Each
of these federal judicial districts is coterminous with the U.S.-Mexico,
or southwest, border. To identify alien-smuggling cases federally
prosecuted in these districts, we reviewed press releases issued by the
respective U.S. Attorney's Office during January through June 2004. For
this 6-month period, our review found that the three districts issued
press releases that covered a collective total of 23 alien-smuggling
cases-District of Arizona (9), Southern District of California (3), and
Southern District of Texas (11). In April and May 2005, the Executive
Office for U.S. Attorneys provided us updated information on the results
(e.g., convictions and sentencing provisions) of these cases.
As summarized below, most of the 23 cases were reactive-type cases, with
no money trail being pursued. However, a few cases (particularly in Texas)
were proactive investigations-including the use of undercover agents-and
had a focus on pursuing financial transactions. Further, according to ICE
officials, certain aspects of the relevant cases were still open at the
time of our review, and investigators were continuing to follow the money
trail. Regarding the reactive-type cases, ICE and U.S. Attorney's Office
officials emphasized that several of the cases involved fatalities and
were prosecuted based on public safety concerns. Also, officials indicated
that law enforcement agencies can gather and consolidate intelligence from
reactive cases as a basis for developing larger or proactive cases.
The nine alien-smuggling cases prosecuted in Arizona reflected a range of
circumstances. For example (see table 8):
o Five of the cases involved truck (or tractor-trailer) drivers who were
transporting as many as 65 undocumented aliens. In one of these cases,
when the driver was fleeing from authorities, a 16-year-old female fell
from the truck bed and died after being run over by the truck.
o Another two cases involved female U.S. citizens who were attempting to
bring Mexican children into the United States. One of these cases involved
5 Mexican children, and the other case involved a 1-year-old Mexican boy.
o Another case reflects victimization and intimidation in the
humansmuggling trade; that is, 23 undocumented aliens who were walking
District of Arizona
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal District
Courts
through the desert near Three Points, Arizona, were robbed and held for
ransom.
Table 8: District of Arizona Alien-Smuggling Cases Reported by U.S.
Attorney's Office Press Releases (January to June 2004) Press release
number, date, and U.S. Case facts, law enforcement agencies involved, and
results (sentencing penalties
Attorney case number
Press release 2004-027 February 6, 2004
Case number CR-03-2360 TUC
Press release 2004-032 February 13, 2004
Case number CR-03-1728
Press release 2004-035 February 17, 2004
Press release 2004-056 March 15, 2004
Case number CR-04-0147-PHX-SRB
or case status)
Facts: The evidence showed at trial that, on November 4, 2003, the
defendant was driving a pickup truck near Arivaca, Arizona. A U.S. Border
Patrol agent could see the knees and elbows of numerous individuals
bouncing in the bed of the truck as it traveled through dips and washes.
When the agent tried to perform a traffic stop on the vehicle, it failed
to yield. Additional Border Patrol agents were able to successfully
deflate the vehicle's front tires with controlled tire deflation devices.
However, the vehicle continued to elude agents until it eventually left
the roadway and crashed through a fence into the open desert. Border
Patrol agents riding ATVs continued the pursuit despite having objects,
including a spare tire, thrown at them from the back of the truck. When
the vehicle came to rest, agents immediately apprehended the driver (the
defendant) as he attempted to flee.
Subsequent investigation revealed the presence of 11 undocumented aliens
in the bed of the truck and 14 undocumented aliens in the cab of the
truck, including numerous children and infants. Defendant was also an
illegal alien who had previously been deported from the United States.
Law enforcement agencies: Tucson and Nogales Sectors of U.S. Border
Patrol.
Results: On February 5, 2004, a federal jury in Tucson found the defendant
guilty of two counts of transportation of illegal aliens for commercial
advantage or private financial gain (8 U.S.C. S: 1324) and one count of
illegal reentry following deportation (8 U.S.C. S: 1326). The defendant
was sentenced to 43 months in prison, but after being appealed, the
sentence was reduced to 21 months.
Facts: At trial, the evidence showed that on August 7, 2003, the defendant
was driving a pickup truck with five illegal aliens, including three in
the open bed of the truck, when stopped by U.S. Border Patrol agents near
Marana, Arizona. The defendant claimed that he was just helping the people
by taking them to a store. He also told Border Patrol agents there were
more people on his property in a mobile home, where agents subsequently
found 18 illegal aliens hiding.
Law enforcement agencies: U.S. Border Patrol.
Results: On February 12, 2004, a federal jury in Tucson found the
defendant guilty of two counts of 8 U.S.C. S: 1324(a)(1)(A)(ii) and one
count of 8 U.S.C. S: 1324(a)(1)(A)(iii). On October 29, 2004, the
defendant was sentenced to 18 months in prison, to be followed by 2 years
of supervised release.
Facts: On January 20, 2004, the defendant's tractor-trailer was stopped at
a Border Patrol checkpoint near Yuma, Arizona. A routine canine sniff
alerted agents to search the tractortrailer. Removing stacked pallets in
the back of the tractor-trailer, agents discovered 65 illegal aliens,
including 20 females and 11 juveniles. The defendant admitted to knowingly
transporting the aliens for a fee of $1,600.
Law enforcement agencies: U.S. Customs and Border Protection.
Results: On March 15, 2004, the defendant pled guilty to one count of
transporting illegal aliens for profit. The defendant was sentenced to 24
months in prison, to be followed by 3 years of supervised release.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Press release number, date, and U.S. Case facts, law enforcement agencies
involved, and results (sentencing penalties Attorney case number or case
status)
Press release 2004-038 Facts: On January 26, 2004, defendant was driving a
Freightliner tractor-trailer when he February 18, 2004 stopped at a Border
Patrol checkpoint on Highway 95 north of Yuma, Arizona. He told the Case
number CR-04-0153-PHX agents he was hauling citrus crates, but he could
not produce any documentation for the
load. Upon receiving consent to search the trailer, agents removed some of
the stacked crates, discovering 50 illegal aliens (46 from Mexico and 4
from El Salvador) hiding in the trailer. The aliens had entered the
trailer in a citrus grove in Yuma and had been shut inside for about 2
hours.
Law enforcement agencies: U.S. Customs and Border Protection.
Results: Defendant was indicted on February 18, 2004, for transporting
illegal aliens. Records regarding the sentencing and judgment of
conviction are sealed.
Press release 2004-041 Facts: The evidence revealed on August 22, 2003,
that two female U.S. citizens were February 20, 2004 stopped at the
Douglas Port of Entry in Arizona, attempting to enter the United States
with Case number CR-03-1854-TUC-FRZ five children, who were citizens of
Mexico. Both defendants claimed the children were
theirs and were also U.S. citizens. The defendants had made prior
arrangements with a man named Juan to pick up the children in Mexico from
a stranger and get them into the United States illegally. Defendants were
going to be paid $50 per child.
Law enforcement agencies: U.S. Immigration and Customs Enforcement.
Results: On February 19, 2004, both defendants pleaded guilty to
conspiracy to bring in illegal aliens in violation of 8 U.S.C. S: 1324.
The defendants were sentenced to prison terms of 16 and 15 months,
respectively.
Press release 2004-045 February 23, 2004
Case number CR-03-2297-TUC-CKJ Facts: On October 23, 2003, a female U.S.
citizen with three children was stopped at the Douglas Port of Entry in
Arizona. She claimed all the children were U.S. citizens. However, a
1-year-old boy was a citizen of Mexico. The woman falsely claimed to be a
babysitter for this child, but the evidence showed that she had driven to
Mexico and picked up this boy, whom she did not know, from a stranger. She
planned to take him to "Luis" in a trailer park in the United States. She
expected to receive $300 once she delivered the child.
Law enforcement agencies: ICE.
Results: On December 12, 2003, the defendant pleaded guilty to conspiracy
to bring in illegal aliens in violation of 8 U.S.C. S: 1324. On February
23, 2003, the defendant was sentenced to 22 months in prison-18 months for
this offense plus 4 months for violating her probation by engaging in the
same act of child smuggling.
Press release 2003-069 April 8, 2004
Case number CR-03-2448-TUC Facts: On November 15, 2003, the defendant
attempted to enter the United States from Mexico at Arizona's Douglas Port
of Entry accompanied by an adult female and a 7-yearold female. The
defendant falsely claimed that the child was a U.S. citizen. The adult
presented an Oregon identification document claiming U.S. citizenship.
Upon further questioning by authorities, the defendant admitted she did
not know the names of either the adult or child. The defendant said she
had been given documents for the two aliens to facilitate entry into the
United States and had coached them on what to say when they entered. The
defendant also said that she and the two Mexican citizens were planning to
take the bus to Tucson where the child's father would pick her up.
Law enforcement agencies: ICE.
Results: On April 8, 2004, the defendant pled guilty to conspiracy to
transport illegal aliens, violating 8 U.S.C. S: 1324, and was sentenced to
33 months in prison to be followed by 3 years of supervised release.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal District
Courts
Press release number, date, and U.S. Case facts, law enforcement agencies
involved, and results (sentencing penalties Attorney case number or case
status)
Press release 2004-079 April 27, 2004
Case number CR-03-1709-TUC-RCC (NFF)
Press release 2004-094 May 18, 2004
Case number CR-04-4857M
Facts: On August 7, 2003, law enforcement agents observed numerous
suspected undocumented aliens loading into the bed of a parked truck
outside of Sells, Arizona The agents pulled in front of the truck and
identified themselves as law enforcement agents. The defendant backed the
truck up and then went forward, fleeing from the scene. In doing so, a
16-year-old undocumented female in the truck bed fell out of the truck,
and the defendant ran over her, killing her instantly. The defendant
crashed into another truck and was arrested. The defendant told agents
that he was taking the group of undocumented aliens to Phoenix, where he
would be paid a set amount for each illegal alien.
Law enforcement agencies: ICE and Tohono O'Odham Police Department.
Results: On April 23, 2004, the defendant pled guilty to felony
transportation of an illegal alien (resulting in death) and conspiracy to
transport illegal aliens. The defendant was sentenced to 57 months in
prison and ordered to pay restitution of $1,104 (the cost of transporting
the body of the deceased female to Mexico). Also, the defendant was
sentenced in state court for negligent homicide, with the state sentence
(6 years in prison) to run concurrently with the federal sentence.
Facts: On March 29, 2004, five Mexican men with numerous firearms
approached a group of 23 undocumented aliens who were walking through the
desert near Three Points, Arizona. The defendants robbed the group and
told the aliens they would be taken to a nearby trailer where members of
the group could contact a family member to pay a ransom. One member of the
group escaped and contacted a Department of Public Safety officer. This
member later led U.S. Border Patrol officers back to the scene, and the
defendants fled but were soon captured. The U.S. Attorney's Office is
working closely with Department of Homeland Security agencies to prosecute
human smugglers identified as part of the Arizona Border Control
initiative, a statewide law enforcement effort launched by DHS in March
2004 to deter the illicit trafficking of people and drugs. ICE described
this case "as yet another example of the victimization and intimidation
that amount to business as usual in the human smuggling trade."
Law enforcement agencies: ICE and U.S. Customs and Border Protection.
Results: On May 17, 2004, all five defendants pled guilty to conspiracy to
commit hostage taking, violating 18 U.S.C. S: 1203. Three of the five
defendants were each sentenced to 10 years of prison. Also, the other two
defendants were sentenced to prison for 121 months and 120 months,
respectively, to be followed by 3 years of supervised release.
California, Southern District
Source: GAO summary of press releases (January through June 2004) by U.S.
Attorney's Office, District of Arizona, and sentencing information
provided by the Executive Office for U.S. Attorneys.
During the period January to June 2004, the U.S. Attorney's Office for the
Southern District of California issued press releases for three
aliensmuggling cases (see table 9). One case involved the attempted
smuggling of Chinese aliens, which resulted in the death of a Border
Patrol agent. In the second case, an inspector from the legacy Immigration
and Naturalization Service was charged with conspiracy. The third case
involved a vehicle accident, resulting in the death of four aliens.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal District
Courts
Table 9: Southern District of California Alien-Smuggling Cases Reported by
U.S. Attorney's Office Press Releases (January to June 2004)
Press release datea Case facts, law enforcement agencies involved, and
results (sentencing penalties or case status)
April 30, 2004 Facts: On December 16, 2003, the defendant was caught
attempting to smuggle three undocumented Chinese nationals across the
Colorado River to Arizona on the border area between California and
Arizona. During the course of the rescue and apprehension of the group, a
U.S. Border Patrol agent died of apparent drowning. The defendant was
charged in a12-count indictment, including bringing in and transporting
illegal aliens resulting in death, and bringing in illegal aliens for
financial gain.
Law enforcement agencies: FBI and U.S. Border Patrol.
Results: The defendant pled guilty to bringing in illegal aliens resulting
in death in violation of 8 U.S.C. S: 1324(a)(1)(a),(V)(ii) and
(a)(1)(B)(iv) and aiding and abetting. The defendant was sentenced on
September 10, 2004, to serve a prison term of 57 months, followed by 5
years of supervised release.
May 25, 2004 Facts: Two members of a Mexican family allegedly arranged
for the smuggling of marijuana and aliens through lanes at the San Ysidro
Port of Entry manned by an INS inspector (defendant number 1). The
inspector resigned in August 2001, following the seizure of a large amount
of marijuana at an auto repair shop he frequented. The investigation,
which began with the sale of false immigration documents to an INS
undercover agent, was subsequently assigned to the Border Corruption Task
Force, which included agents from the FBI, ICE, and the DHS Inspector
General's Office. Ten defendants are involved in this case: the former INS
inspector (defendant number 1) and three other U.S. citizens, three
Mexican citizens, and three resident aliens. FBI and DHS agents arrested
defendant number 1 in Atlanta, Georgia, as he was returning from Paris,
France.
Law enforcement agencies: FBI, ICE, DHS Office of Inspector General, and
Border Corruption Task Force.
Results: On May 25, 2004, the former INS inspector and nine additional
defendants were arraigned. All 10 defendants were charged with conspiracy
to bring in illegal aliens and bringing in illegal aliens for financial
gain in violation of 8 U.S.C. S: 1324. Five defendants were charged with
conspiracy to import marijuana in violation of 21 U.S.C. S:S: 952, 960,
and 963. Three defendants were charged with importation of marijuana in
violation of 21 U.S.C. S:S: 952 and 960. One defendant was charged with
use of false immigration documents in violation of 18 U.S.C. S: 1546.
As of April 15, 2005, nine defendants had pled guilty (including defendant
number 1), and sentencing was pending; one defendant remained at large.
June 16, 2004 Facts: Two defendants were involved in the smuggling of 21
undocumented aliens through the desert of Imperial County in a SUV. While
in route, the loaded vehicle blew a tire and rolled over on highway 78,
resulting in the deaths of four of the aliens.
Law enforcement agencies: U.S. Border Patrol, ICE, California Highway
Patrol, and Imperial County Sheriff's Office.
Results: On June 16, 2004, one defendant, as part of a plea agreement,
pled guilty to one count of bringing in an illegal alien, resulting in
death, a violation of 8 U.S.C. S: 1324(a)(1)(A)(i) and (B)(iv); and three
counts of bringing in illegal aliens for financial gain, a violation of 8
U.S.C. S: 1324(a)(2)(B)(ii). The second defendant pled guilty to one count
of bringing in an illegal alien, resulting in death, a violation of 8
U.S.C. S: 1324(a)(1)(A)(i); and one count of bringing in an illegal alien
for financial gain in violation of 8 U.S.C. S: 1324(a)(2)(B)(ii).
On October 1, 2004, one defendant was sentenced to 60 months in prison,
followed by 3 years of supervised release. The second defendant was
sentenced to 46 months in prison, followed by 3 years of supervised
release.
Source: GAO summary of press releases (January through June 2004) by U.S.
Attorney's Office, Southern District of California, and sentencing
information provided by the Executive Office for U.S. Attorneys.
aThe press releases from this district had dates but did not have
reference numbers, nor did the press releases cite U.S. Attorney case
numbers.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal District
Courts
Texas, Southern District
During the period January to June 2004, the U.S. Attorney's Office for the
Southern District of Texas issued press releases for 11 alien-smuggling
cases (see table 10):
o Two of these cases involved multiple alien fatalities-specifically, 11
illegal immigrants in a locked railroad grain car and 19 from confinement
in an abandoned tractor-trailer. And, in a third case, a fleeing
17-year-old Guatemalan national was struck and killed by oncoming highway
traffic.
o Two other cases involved the smuggling of Chinese nationals into the
United States. In one of these cases, the convicted defendant forfeited
$250,000 in cash assets earned from the smuggling venture.
o In another case, five South Americans involved in an international
smuggling ring were prosecuted in the United States, even though the truck
that transported the ring's human cargo of undocumented aliens was
intercepted near Monterrey, Mexico. According to the press release,
prosecution of these defendants was the first use in the Southern District
of Texas of a law providing for the prosecution of crimes that occurred
outside the territorial limits of the United States. The law takes into
account the facts that the aliens' ultimate destination was the United
States and the smuggling operation would have the most effect in the
United States.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal District
Courts
Table 10: Southern District of Texas Alien-Smuggling Cases Reported by
U.S. Attorney's Office Press Releases (January to June 2004)
Case facts, law enforcement agencies involved, and results (sentencing
penalties Press release number and datea or case status)
040105-flores January 5, 2004 Facts: The evidence introduced during the
trial showed that the charges resulted from an incident that occurred in
east Houston on June 3, 2003. On that date, a Houston Police officer
responded to a call regarding possible alien smuggling taking place at 908
Cesar Chavez Street, Houston, Texas. On arrival, 29 illegal aliens were
found inside the building at that address. ICE agents were called to the
scene and began interviews, which led to the arrests of the two
defendants. Defendant number 1 was identified as being in charge of the
premises on Cesar Chavez Street. A search of the premises revealed a
notepad containing information with which the smugglers could contact
family members and friends to arrange the payment of smuggling fees. The
notepad containing the contact information was sent to the DHS forensic
unit, and a handwriting analysis found that the handwriting in the notepad
matched the known handwriting of defendant number 1.
The illegal aliens told investigating agents they entered the United
States near Brownsville, Texas. Defendant number 2 was identified as a
guide who led them through the brush in South Texas to circumvent the
Border Patrol checkpoint in Sarita, Texas. Testimony also showed the
illegal aliens were transported from South Texas to Houston in a number of
vehicles to the building on Cesar Chavez Street.
Law enforcement agencies: ICE and Houston Police Department.
Results: Both defendants were convicted in a jury trial that concluded on
August 28, 2003. On January 5, 2004, the U.S. Attorney announced that each
defendant was sentenced to 27 months imprisonment for conspiracy to harbor
and transport illegal aliens and five counts of concealing illegal aliens.
040115-reyes January 15, 2004 Facts: The evidence introduced during three
separate trials showed that five South Americans were involved in an
international smuggling ring that transported undocumented aliens through
El Salvador, Guatemala, and Mexico into the United States. The truck
transporting the aliens was intercepted near Monterrey, Mexico, and
Mexican authorities detained the truck and human cargo. The group (who
were mostly El Salvadorans) had traveled by foot and then were transported
in open bed trucks to become part of a human cargo of 146 men and women
loaded into a tractor-trailer among stacked crates of bananas and apples.
Witnesses identified defendant number 1 as the owner of the house in San
Salvador where they paid initial smuggling fees, along with providing
relatives' names to be contacted for the remaining payment of their fees.
Defendants number 2, 3, 4, and 5 acted as guides or provided food and
water during the journey.
Law enforcement agencies: ICE.
Results: Five persons (four El Salvadorans and one Guatemalan) were
convicted in three jury trials that ended on January 15, 2004. Defendant
number 1 was sentenced to 82 months in federal prison without parole for
conspiring to aid and abet the smuggling of undocumented workers into the
United States and transporting illegal aliens. The other prison terms
levied were 8 years for defendants number 2 and 4, 66 months for defendant
number 3, and 33 months for defendant number 5.
Prosecution of these defendants was the first use in the Southern District
of Texas of a law providing for the prosecution of crimes that occurred
outside the territorial limits of the United States. The law takes into
account the facts that the aliens' ultimate destination was the United
States and the smuggling operation would have the most effect in the
United States.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Case facts, law enforcement agencies involved, and results (sentencing
penalties Press release number and datea or case status)
040204-frazier February 4, 2004 Facts: The defendant was arrested on April
21, 2003, after U.S. Border Patrol agents discovered four undocumented
Mexican aliens in the trunk of a rental car. Among the four persons were a
3-year-old girl and her mother. The defendant was a front-seat passenger
when the car was stopped and searched at the immigration checkpoint on
Interstate Highway 35, approximately 15 miles north of Laredo. Evidence
presented at trial showed he was involved in a larger conspiracy to
transport and harbor aliens approximately 2 months before his arrest. He
picked up undocumented aliens at a local hotel near the interstate highway
and the Rio Grande river, placing them in the trunk of a rental car for
transport to San Antonio, Texas. He dropped them off at a hotel, which
served as a staging area and drop-off point for the undocumented aliens.
According to trial testimony, it is believed that most of the undocumented
aliens were bound for locations in and around Texas, including San
Antonio, Austin, Dallas, and Houston.
Law enforcement agencies: U.S. Border Patrol.
Results: The defendant was convicted after a jury trial in September 2003
of conspiracy to transport 26 undocumented aliens within the United States
and was sentenced to 70 months in federal prison, without parole. He was
also fined $5,000 and assessed a $200 fee for the federal crime victims'
fund.
040218-lara February 18, 2004 Facts: On May 16, 2003, Victoria County
Sheriff's Department officers discovered a group of 18 aliens concealed in
the back of a tractor-trailer after being called to a rest area on U.S.
Highway 59, about 5 miles north of Victoria, Texas. According to aliens
aboard the tractor-trailer, the defendant (a Mexican national with U.S.
resident alien status) had given them a pickaxe to use as a way out of the
trailer in the event of an emergency.
On June 26, 2003, Border Patrol agents discovered another group of illegal
aliens inside two grain-hopper bins in a train yard in Harlingen, Texas.
Upon discovery, the agents estimated that the temperature inside the
grain-hopper approached 120 degrees. One woman, who was 5 months pregnant,
was airlifted to Valley Baptist Hospital, and another four aliens required
medical treatment. According to agents, the local fire department had to
decontaminate the aliens, who were all covered in soda ash. The majority
of the aliens in both groups were Mexican nationals, but some were from
Honduras and El Salvador. The defendant paid drivers $500 to $800 for
every alien transported, and two aliens stated they had agreed to pay the
defendant $1,500 to transport them from the Rio Grande Valley to Houston.
Law enforcement agencies: U.S. Border Patrol, ICE, and Victoria County
Sheriff's Office.
Results: The defendant pleaded guilty to smuggling, transporting, and
harboring over 200 undocumented aliens from the Rio Grande Valley to
Corpus Christi, Victoria, and Houston, Texas. Further, he possessed a
firearm during the commission of the offense and had obstructed justice by
threatening a potential witness against him. He was sentenced to 188
months in federal prison, without parole.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Case facts, law enforcement agencies involved, and results (sentencing
penalties Press release number and datea or case status)
040220-salman February 20, 2004 Facts: Mexican federal agents arrested the
defendant in November 1999 attempting to transport four Chinese nationals
into the United States. He was transferred to the United States in a
prisoner exchange program. The defendant admitted that-while based in
Quito, Ecuador, and Mexico City-he worked closely with his wife in Houston
and others to move Chinese nationals into the United States for commercial
and private financial gain, creating and using fraudulent immigration
documents to facilitate their movement into the United States, and
laundering the money generated by his illegal activity. The defendant and
others operated from five separate locations-including Brooklyn, New York;
Mexico City; and Guang-Zhou City, China-and a Houston house and
condominium the defendant owned. Federal undercover agents successfully
penetrated the smuggling enterprise. The defendant unwittingly directed
his wife to pay an undercover agent over $250,000 in cash for his services
relating to the aliens' arrival in Houston from Quito. The defendant
arranged for the aliens to be transported by plane from Houston to New
York. The defendant also admitted that he and others agreed to launder
over $250,000 in cash proceeds earned from their smuggling enterprise.
They set up bank accounts in Houston and New York to deposit smuggling
funds and also used a safe deposit box to store cash proceeds. The
defendant will be forfeiting his interest in a condominium used during the
conspiracy to conceal and harbor some of the aliens and $250,000 in cash
assets earned from the smuggling venture.
Law enforcement agencies: U.S. Border Patrol, legacy Immigration and
Naturalization Service, FBI, and Internal Revenue Service.
Results: The defendant pleaded guilty to importing 29 Chinese nationals
into the United States via Mexico and Ecuador between 1999 and 2001. The
defendant was convicted of racketeering conspiracy with an international
smuggling enterprise based in China and was sentenced to prison for 51
months, without parole.
040226-romero February 26, 2004 Facts: ICE initiated an investigation in
October 2003 based on information about possible alien-smuggling activity
occurring at an apartment complex in Houston. Agents witnessed activity
consistent with alien smuggling while conducting physical surveillance on
the apartment. Upon entering the apartment, agents found a total of 36
undocumented aliens, mostly from Brazil and some from Mexico. Further
investigation revealed that defendant number 4 delivered the aliens to the
apartment, and defendant number 2 concealed and guarded the aliens. After
defendant number 3 had delivered several undocumented aliens to defendant
number 4 in Corpus Christi, Texas, Western Union receipts indicated that
defendant number 4 had wired $3,300 to defendant number 3 in McAllen,
Texas. Finally, defendant number 4 and defendant number 1 drove some of
the aliens in separate vehicles from the apartment to Atlanta, Georgia.
Law enforcement agencies: ICE.
Results: On February 25, 2004, all four defendants were convicted of
conspiring to harbor and transport undocumented aliens. The four
defendants were sentenced to prison for 12, 21, 24, and 30 months,
respectively.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Case facts, law enforcement agencies involved, and results (sentencing
penalties Press release number and datea or case status)
040304-licea March 3, 2004 Facts: Defendant number 1, a Mexican citizen,
was convicted in March 2003 for his role in a smuggling operation that
resulted in the deaths of 11 illegal immigrants in a rail car in October
2002 in Denison, Iowa. He pled guilty to conspiring to transport and
harboring undocumented aliens. Court documents indicated that the
defendant was an integral part of an international smuggling operation
moving illegal aliens from Central America into the United States through
Mexico between January 2000 and February 2003. The organization harbored
the aliens in drop houses in or near Harlingen, Texas, transported the
aliens usually by rail past the U.S. Border Patrol check point in Sarita,
Texas, then by vehicle to Houston, Texas, and other parts of the country.
In June 2002, the defendant and other coconspirators lost track of a
locked railroad grain car into which 11 undocumented aliens had been
loaded. The 11 aliens were found 4 months later in the same locked rail
car at a depot in Denison, Iowa, having died of dehydration and
hyperthermia.
Several other defendants have been charged with various aspects of the
crime. One defendant, a former conductor for the Union Pacific Railroad,
provided the group with information on the scheduled stops and locations
of northbound trains headed out of the Rio Grande Valley so that the
smugglers would know when and where they could load the aliens.
Law enforcement agencies: ICE, FBI, Crawford County Iowa Sheriff's Office,
Denison Police and Fire Departments, Iowa Division of Criminal
Investigation, Union Pacific Railroad Police, and the Iowa State Medical
Examiner's Office.
Results: As of April 2005, sentencing was still pending for defendant
number 1 and the former railroad conductor. Four other defendants received
sentences of 57 months, 33 months, and 21 months (two defendants),
respectively. Another two individuals remained fugitives as of April 2005.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Press release number and datea
Five press releases (the "Victoria 19"case):040301-Williams March 15, 2004
040322-Gaytan March 22, 2004
040412-HollowayApril 12, 2004
040429-Garcia April 29, 2004
040614-ChavezJune 14, 2004
Case facts, law enforcement agencies involved, and results (sentencing
penalties or case status)
Facts: Fourteen persons were charged in a superseding indictment on March
15, 2004, for their alleged involvement in a smuggling operation in which
at least 74 undocumented aliens from Mexico, El Salvador, Honduras,
Nicaragua, the Dominican Republic, and Guatemala were loaded onto a
tractor-trailer near Harlingen, Texas, to be transported to Houston. This
smuggling operation resulted in the deaths of 19 undocumented aliens-17 of
whom were found dead in and around the trailer abandoned by the driver in
Victoria, Texas, on May 14, 2003. Fifty-five undocumented aliens survived
the ill-fated journey. Each undocumented alien was charged approximately
$1,800 in smuggling fees for the trip.
Law enforcement agencies: ICE; Texas Department of Public Safety
(including the Texas Rangers); the Victoria County Sheriff's Department;
and the McAllen, Harlingen, and Victoria Police Departments.
Results: A Jamaican national (the truck driver) has been charged with
being part of a conspiracy to smuggle and transport undocumented aliens
for financial gain that allegedly resulted in the death of some of the
aliens. The Attorney General has authorized the death penalty be sought
against this defendant, whose jury trial began on February 22, 2005. A
partial verdict was returned on March 23, 2005; appellate issues are
pending. The status (as of April 2005) of other 13 defendants was as
follows:
o Four defendants had pled to the conspiracy count, which carries a
maximum penalty of life imprisonment, and were awaiting sentencing.
o One defendant had pled guilty to harboring and transporting a smuggled
3-year-old child and was sentenced to 14 months' confinement.
o One defendant's jury trial had been suspended pending completion of an
appeal to the Fifth Circuit.
o Following a 3-week jury trial, two defendants were convicted on
numerous counts of the superseding indictment. Many of the counts carry a
maximum penalty of life imprisonment. The defendants were awaiting
sentencing.
o One defendant's motion for a judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure was granted by the district
court judge upon completion of the government's case in chief. The
defendant was in the custody of ICE and was undergoing deportation
proceedings.
o Three defendants were expelled from Mexico to the United States on
February 9, 2005, and were apprehended that same day upon arrival at the
George Bush Intercontinental Airport in Houston, Texas. The defendants
were being detained awaiting trial, which is scheduled for October 17,
2005.
o One defendant was a fugitive in Mexico, and the United States was
seeking extradition.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Case facts, law enforcement agencies involved, and results (sentencing
penalties Press release number and datea or case status)
040401-Chen Facts: The indictment is the result of an ICE undercover
operation in late 2003, during
April 1, 2004 which federal agents infiltrated an organization by posing
as alien smugglers willing to transport Chinese nationals into the United
States. The husband and wife defendants (both Chinese nationals) made
payments of $12,000 to $17,000 per alien to undercover agents for their
assistance in the smuggling scheme, which allegedly reached over $100,000
for the 12 undocumented aliens brought to the United States over a 3-month
period.
According to the indictment, the two defendants were members of an
organization specializing in making arrangements for illegal alien
immigrants from the People's Republic of China to be smuggled into the
United States via Thailand and certain Central American countries. Human
smugglers guided the aliens in the Central American countries to staging
areas south of the U.S. border. Typically, the aliens were required to pay
a portion of their total smuggling fee in advance of their departure, with
the balance due after arriving in the United States. Upon being guided
into the United States by smugglers, the aliens were held in drop houses
or hotels until their relatives or friends paid the balance of the
smuggling fee.
Law enforcement agencies: ICE.
Results: The defendants were charged with 12 counts of smuggling for
commercial gain and private financial advantage and 4 counts of money
laundering for the more than $100,000 in fees paid to the undercover
officers. Sentencing of the two convicted defendants was set for May 2005;
each defendant faces a mandatory minimum sentence of 3 years in prison.
040526-Garcia-Garcia May 26, 2004
Facts: The evidence showed that on December 2, 2003, U. S. Border Patrol
agents on routine patrol near Premont, Texas, saw a pickup truck they
believed to contain undocumented aliens. The agents turned on their
emergency equipment and attempted to stop the vehicle. As the driver
(later identified as the defendant) of the vehicle slowed, all of the
occupants of the truck jumped out and fled. One occupant, a 17-year-old
Guatemalan national, ran across the highway into the path of an oncoming
tractor-trailer and was struck and killed. The defendant was tracked down
and arrested.
Law enforcement agencies: U. S. Border Patrol and ICE.
Results: The defendant (a Mexican citizen) pleaded guilty to transporting
an undocumented alien for private financial gain, resulting in the death
of a 17-year-old Guatemalan national. The defendant was sentenced to 64
months in prison.
040629-Vera June 29, 2004 Facts: Evidence revealed that on April 29, 2004,
a Texas Department of Public Safety trooper attempted to stop a speeding
Chevrolet Suburban traveling along Highway 59 near El Campo, Texas. The
defendant attempted to elude the trooper by veering into the southbound
lane of oncoming traffic, jumping the median into the northbound lane and
resuming travel at a high speed. However, a tire on the car blew out,
forcing him to stop. He attempted to escape on foot but was arrested by
the trooper. Five aliens illegally in the United States were found hiding
in the Suburban.
The defendant admitted to ICE agents that he had received a telephone call
from an alien smuggler offering to pay him a fee to transport undocumented
aliens from Victoria, Texas, to Houston. He said he had picked up the
aliens in Victoria, Texas, and was transporting the aliens to Houston,
Texas.
Law enforcement agencies: ICE and Texas Department of Public Safety.
Results: On June 28, 2004, the defendant (a U.S. citizen) pleaded guilty
to transporting undocumented aliens for private financial gain. The
defendant was sentenced to 6 months of imprisonment.
Appendix V: Examples of Alien-Smuggling Cases Prosecuted in Federal
District Courts
Source: GAO summary of press releases (January through June 2004) by U.S.
Attorney's Office, Southern District of Texas, and sentencing information
provided by the Executive Office for U.S. Attorneys.
aThe press releases from this district did not cite U.S. Attorney case
numbers.
Appendix VI: Possible Effects of Not Having a Civil Forfeiture Provision for
Real Property Used to Facilitate Alien Smuggling
District of Arizona
In March 2005, on the basis of its survey of U.S. Attorneys Offices along
the southwest border, the Department of Justice provided us summary
examples of recent or pending alien-smuggling cases in which real property
used to facilitate the offense could not be forfeited because of the
absence of statutory civil forfeiture authority. According to Justice, the
following summaries are illustrative of typical cases that recur with
great frequency.
The Phoenix office of the United States Attorney for the District of
Arizona reported a variety of instances in which the absence of a civil
forfeiture statute for real property used to commit an alien-smuggling
offense precluded the forfeiture of the property. In one case, the
government did not discover that the alien smuggler owned real property
that he had used to commit the offense until after the criminal case was
over. At that point it was too late to seek criminal forfeiture of the
property, because criminal forfeiture must be imposed as part of the
defendant's sentence, and the absence of civil forfeiture made it
impossible to recover the property. Therefore, the property remained in
the hands of the convicted smuggler.
In two other cases, the U.S. Attorney was unable to forfeit stash houses
used to hold illegal aliens because the houses were rented from third
parties, who could not be charged with the criminal offense. In the
absence of civil forfeiture authority, the government was powerless to
forfeit these properties, even after the government sent the landlords
warning letters giving them notice that their property was being used
illegally and advising them to take steps to stop the illegal use.1
The Tucson office of the United States Attorney for the District of
Arizona reported having cases in which properties used to store illegal
aliens are owned by corporations. Because the corporations themselves are
not prosecuted criminally for the alien-smuggling offenses, there was no
possibility of criminal forfeiture of the properties, even if the alien
smugglers were convicted.
1Justice noted that, in some instances, the federal authorities were able
to refer cases to the Arizona Attorney General for civil forfeiture under
Arizona law.
Appendix VI: Possible Effects of Not Having a Civil Forfeiture Provision
for Real Property Used to Facilitate Alien Smuggling
Central District of California
Southern District of Texas
The United States Attorney for the Central District of California reported
three separate incidents in the second half of calendar year 2004 in which
a rental property was used as a stash house for the forced detention of
large numbers of illegal aliens. In each case, the stash house was a
virtual prison, complete with bars and steel gates. Those facts and other
circumstances made it likely that the landlord was aware of the purposes
for which the properties were being used. Thus, the landlord would not
have been able to assert a valid innocent owner defense to a civil
forfeiture action. However, there was insufficient evidence to charge the
landlord (as opposed to the tenant) with an alien-smuggling violation-
thus, precluding criminal forfeiture of the property. As a result, given
the absence of a civil forfeiture provision for real property, the rental
properties used as stash houses were exempt from forfeiture.
The United States Attorney for the Southern District of Texas reported
having a pending case in which fugitives hiding in Mexico owned real
property in Texas that they have used as a staging area for alien
smuggling. Because the property owners are fugitives, there is no
possibility of forfeiting the property criminally. Also, in the absence of
a civil forfeiture statute for real property, there is no possibility of
forfeiting the property civilly.
The same office reported being currently engaged in active investigations
of cases in which hotels, motels, and private homes are used as staging
areas for alien smuggling. Typically, the properties are temporary holding
sites for aliens awaiting transport. In most cases, the owners of the
properties are relatives of the smugglers-and, therefore, are aware of the
smuggling activity-but are not themselves engaged in the smuggling
operation. Thus, it is unlikely that any of the properties could be
forfeited criminally.
Appendix VII: Comments from the Department of Homeland Security
Appendix VII: Comments from the Department of Homeland Security
Appendix VII: Comments from the Department of Homeland Security
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