Immigration Enforcement: ICE Could Improve Controls to Help Guide
Alien Removal Decision Making (15-OCT-07, GAO-08-67).		 
                                                                 
Officers with U.S. Immigration and Customs Enforcement (ICE)	 
within the Department of Homeland Security (DHS) investigate	 
violations of immigration laws and identify aliens who are	 
removable from the United States. ICE officers exercise 	 
discretion to achieve its operational goals of removing any	 
aliens subject to removal while prioritizing those who pose a	 
threat to national security or public safety and safeguarding	 
aliens' rights in the removal process. The General Accountability
Office (GAO) was asked to examine how ICE ensures that discretion
is used in the most fair, reasoned, and efficient manner	 
possible. GAO reviewed (1) when and how ICE officers and	 
attorneys exercise discretion and what internal controls ICE has 
designed to (2) guide decision making and (3) oversee and monitor
officers' decisions. To conduct this work, GAO reviewed ICE	 
manuals, memorandums, and removal data, interviewed ICE 	 
officials, and visited 21 of 75 ICE field offices.		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-67						        
    ACCNO:   A77368						        
  TITLE:     Immigration Enforcement: ICE Could Improve Controls to   
Help Guide Alien Removal Decision Making			 
     DATE:   10/15/2007 
  SUBJECT:   Aliens						 
	     Border security					 
	     Decision making					 
	     Deportation					 
	     Illegal aliens					 
	     Immigrants 					 
	     Immigration and naturalization law 		 
	     Internal controls					 
	     Law enforcement					 
	     Policy evaluation					 
	     Reporting requirements				 
	     Standards						 
	     Voluntary compliance				 
	     Program implementation				 

******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO Product.                                                 **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
******************************************************************
GAO-08-67

This is the accessible text file for GAO report number GAO-08-67 
entitled 'Immigration Enforcement: ICE Could Improve Controls to Help 
Guide Alien Removal Decision Making' which was released on October 16, 
2007. 

This text file was formatted by the U.S. Government Accountability 
Office (GAO) to be accessible to users with visual impairments, as part 
of a longer term project to improve GAO products' accessibility. Every 
attempt has been made to maintain the structural and data integrity of 
the original printed product. Accessibility features, such as text 
descriptions of tables, consecutively numbered footnotes placed at the 
end of the file, and the text of agency comment letters, are provided 
but may not exactly duplicate the presentation or format of the printed 
version. The portable document format (PDF) file is an exact electronic 
replica of the printed version. We welcome your feedback. Please E-mail 
your comments regarding the contents or accessibility features of this 
document to [email protected]. 

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

Report to Congressional Requesters: 

United States Government Accountability Office: 

GAO: 

October 2007: 

Immigration Enforcement: 

ICE Could Improve Controls to Help Guide Alien Removal Decision Making: 

Immigration Enforcement: 

GAO-08-67: 

GAO Highlights: 

Highlights of GAO-08-67, a report to congressional requesters. 

Why GAO Did This Study: 

Officers with U.S. Immigration and Customs Enforcement (ICE) within the 
Department of Homeland Security (DHS) investigate violations of 
immigration laws and identify aliens who are removable from the United 
States. ICE officers exercise discretion to achieve its operational 
goals of removing any aliens subject to removal while prioritizing 
those who pose a threat to national security or public safety and 
safeguarding aliensï¿½ rights in the removal process. GAO was asked to 
examine how ICE ensures that discretion is used in the most fair, 
reasoned, and efficient manner possible. GAO reviewed (1) when and how 
ICE officers and attorneys exercise discretion and what internal 
controls ICE has designed to (2) guide decision making and (3) oversee 
and monitor officersï¿½ decisions. To conduct this work, GAO reviewed ICE 
manuals, memorandums, and removal data, interviewed ICE officials, and 
visited 21 of 75 ICE field offices. 

What GAO Found: 

ICE officers exercise discretion throughout the alien apprehension and 
removal process, but primarily during the initial phases of the process 
when deciding to initiate removals, apprehend aliens, issue removal 
documents, and detain aliens. Officers GAO interviewed at ICE field 
offices said that ICE policies and procedures limit their discretion 
when encountering the targets of their investigationsï¿½typically 
criminal or fugitive aliens, but that they can exercise more discretion 
for other aliens they encounter. Officers also said that they consider 
humanitarian circumstances, such as sole caregiver responsibilities or 
medical reasons, when making these decisions. Attorneys, who generally 
enter later in the process, and officers told GAO that once removal 
proceedings have begun, discretion is limited to specific 
circumstances, such as if the alien is awaiting approval of lawful 
permanent resident status. 

Consistent with internal control standards, ICE has begun to update and 
enhance training curricula to better support officer decision making. 
However, ICE has not taken steps to ensure that written guidance 
designed to promote the appropriate exercise of discretion during alien 
apprehension and removal is comprehensive and up to date and has not 
established time frames for updating guidance. For example, field 
operational manuals have not been updated to provide information about 
the appropriate exercise of discretion in light of a recent expansion 
of ICE worksite enforcement and fugitive operations, in which officers 
are more likely to encounter aliens with humanitarian issues or who are 
not targets of investigations. Also, ICE does not have a mechanism to 
ensure the timely dissemination of legal developments to help ensure 
that officers make decisions in line with the most recent 
interpretations of immigration law. As a result, ICE officers are at 
risk of taking actions that do not support operational objectives and 
making removal decisions that do not reflect the most recent legal 
developments. 

Consistent with internal control standards, ICE relies on supervisory 
reviews to ensure that officers exercise appropriate discretion and has 
instituted an inspection program designed to ensure that field offices 
comply with established policies and procedures. However, ICE lacks 
other controls to help monitor performance across the 75 field offices 
responsible for making apprehension and removal decisions. A 
comprehensive mechanism for reviewing officersï¿½ decision making could 
provide ICE with meaningful information to analyze trends to identify 
areas that may need corrective action and to identify best practices. 
ICE officials acknowledged they do not collect the data necessary for 
such a mechanism and said doing so may be costly. Without assessing 
costs and alternatives, ICE is not in a position to select an approach 
that will help identify best practices and areas needing corrective 
action. 

What GAO Recommends: 

GAO recommends that ICE update guidance to include factors officers 
should consider when making apprehension and removal decisions and 
establish time frames for this task; ensure that officers are provided 
timely information on legal developments affecting their decisions; and 
evaluate the costs and alternatives for developing a mechanism to 
systematically analyze officer decision making. DHS agreed and 
identified actions ICE plans to take to implement GAOï¿½s 
recommendations. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?gao-08-67]. For more information, contact 
Richard M. Stana at (202) 512-8777 or [email protected]. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

ICE Officers Exercise Discretion, Particularly for Aliens with 
Humanitarian Issues or Who Are Not Investigation Targets: 

ICE Has Strengthened Training Programs, but Lacks Comprehensive 
Guidance and Consistent Legal Updates to Inform Decision Making: 

ICE Has Supervisory Review and an Inspection Program to Monitor Removal 
Operations but Lacks a Means to Analyze Information Specific to the 
Exercise of Discretion across All Field Offices: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Comments from the Department of Homeland Security: 

Appendix III: GAO Contact and Staff Acknowledgments: 

Table: 

Table 1: Decisions Reviewed by Experienced Officers, Supervisors, and 
Managers: 

Figures: 

Figure 1: Fiscal Year 2006 Removal Dispositions Issued by OI Field 
Offices: 

Figure 2: Worksite Enforcement Arrests, Fiscal Year 2002 through Fiscal 
Year 2007: 

Abbreviations: 

DACS: Deportable Alien Control System: 

DHS: Department of Homeland Security: 

DRO: Office of Detention and Removal Operations: 

ICE: Immigration and Customs Enforcement: 

INA: Immigration and Nationality Act: 

NTA: notice to appear: 

OIG: Office of Inspector General: 

OI: Office of Investigations: 

OPLA: Office of the Principal Legal Advisor: 

TECS: Treasury Enforcement Communications System: 

USCIS: U.S. Citizenship and Immigration Services: 

United States Government Accountability Office: 

Washington, DC 20548: 

October 15, 2007: 

The Honorable Zoe Lofgren: 
Chairwoman: 
Subcommittee on Immigration, Citizenship, Refugees, Border Security, 
and International Law: 
Committee on the Judiciary: 
House of Representatives: 

The Honorable Sheila Jackson Lee: 
House of Representatives: 

Responsibility for the enforcement of immigration laws within the 
interior of the United States rests with U.S. Immigration and Customs 
Enforcement (ICE), which plans and conducts investigations of persons 
and organizations subject to criminal and administrative provisions of 
the Immigration and Nationality Act (INA).[Footnote 1] ICE officers 
investigate violations of immigration law and are responsible for 
identifying aliens--that is, persons who are not citizens or nationals 
of the United States--who are removable from the United 
States.[Footnote 2] Aliens may be subject to removal for a wide variety 
of reasons, including entering the United States illegally, staying 
longer than their authorized period of admission, being convicted of 
certain crimes, or engaging in terrorist activities. Aliens who enter 
the United States illegally are subject to removal, as are aliens who 
violate immigration law after entering the country legally. According 
to its strategic plan, ICE focuses the greater part of its immigration 
enforcement efforts on aliens who pose a threat to national security 
and public safety, as well as on aliens who have ignored orders to 
leave the United States. According to ICE records, in fiscal year 2006, 
ICE removed about 182,000 aliens from the United States as part of its 
enforcement efforts. 

In recent years, through targeted investigative operations, ICE 
components have increased their efforts to enforce immigration laws and 
apprehend and remove aliens subject to removal. The ICE Office of 
Investigations (OI), which has responsibility for investigating 
immigration and other crimes related to national security, has 
increased its emphasis on worksite enforcement operations. These 
operations are conducted to apprehend and remove aliens who are 
unlawfully employed and impose sanctions on employers who knowingly 
employ these aliens. According to ICE data, the number of worksite 
enforcement arrests increased from 510 in fiscal year 2002 to 4,383, in 
fiscal year 2006. Likewise, ICE's Office of Detention and Removal 
Operations (DRO), which has responsibility for ensuring that all 
removable aliens depart from the country, has increased its emphasis on 
fugitive operations, which are enforcement operations designed to 
locate, apprehend, and remove aliens from the country who have not 
complied with orders of removal issued by an immigration judge--known 
as fugitive aliens.[Footnote 3] Over the last 2 fiscal years, the 
number of fugitive arrests conducted by DRO increased from 7,958 in 
fiscal year 2005 to 15,467 in fiscal year 2006. In carrying out these 
operations and processing aliens for removal, OI and DRO officers are 
to work with attorneys from ICE's Office of the Principal Legal Advisor 
(OPLA), which is responsible for providing legal advice, training, and 
services to support the ICE mission and for defending the interests of 
the United States in the administrative and federal courts. In fiscal 
year 2006, OPLA handled approximately 324,000 proceedings in 
immigration courts. 

During the process of enforcing immigration law, there are a number of 
decisions that ICE officers and attorneys must make, taking into 
account all facts and circumstances of each case, about the 
apprehension and disposition of aliens who are subject to removal. 
Specifically, ICE officers exercise discretion when they decide whom to 
stop, question, and arrest; how to initiate removal; whether to grant 
voluntary departure (whereby aliens agree to waive their rights to a 
hearing and are escorted out of the United States to their home 
countries by ICE officers);[Footnote 4] and whether to detain an alien 
in custody. For example, ICE officers might consider alternative ways 
to initiate removal proceedings--other than immediate apprehension and 
detention--when they encounter aliens who are sole caretakers for minor 
children or who are ill and are undergoing medical treatment. In other 
circumstances, officers might decide not to question and arrest some 
aliens they suspect are subject to removal in the interest of pursuing 
other law enforcement efforts that provide a greater value to the 
nation--such as those involving known criminals or threats to national 
security. Also, once an ICE officer has made a decision to pursue 
removal, ICE attorneys exercise discretion when they decide whether and 
how to settle or dismiss a removal proceeding or to appeal a decision 
rendered by an immigration judge. 

All of these decisions are made within the context of the number of 
aliens subject to removal from the United States (estimated to be about 
12 million in 2006); ICE resources available to investigate, apprehend, 
and remove aliens subject to removal; and the circumstances surrounding 
each case. One of ICE's operational objectives is to apprehend and 
remove aliens who are subject to removal--with a priority on those 
aliens who pose a threat to national security and public safety--while 
safeguarding aliens' rights in the removal process. Nonetheless, given 
the large number of aliens in the country who are subject to removal, 
it is virtually impossible for ICE officers to investigate and arrest 
every potentially removable alien encountered through the course of an 
enforcement effort. ICE headquarters officials told us that data are 
not collected about potentially removable aliens whom its officers may 
encounter and against whom officers do not take actions that may result 
in removal proceedings. For this reason, the data provided in this 
report focus primarily on aliens for whom removal proceedings have been 
initiated. 

Because of the important role that discretion plays in the alien 
apprehension and removal process, you asked us to examine how ICE 
ensures that discretion is used in the most fair, reasoned, and 
efficient manner possible. Along these lines, we examined whether ICE 
has designed internal controls to guide and monitor officers' exercise 
of discretion when making alien apprehension and removal decisions, 
consistent with internal control standards for the federal 
government.[Footnote 5] Specifically, this review addresses the 
following three questions: 

1. When and how do ICE officers and attorneys exercise discretion 
during the alien apprehension and removal process? 

2. What internal controls has ICE designed to guide officer decision 
making to enhance its assurance that the exercise of discretion 
supports its operational objectives? 

3. What internal controls has ICE designed to oversee and monitor 
officer decision making during the alien apprehension and removal 
process to enhance ICE's assurance that the exercise of discretion 
supports its operational objectives? 

To address these questions, we reviewed relevant laws and regulations 
as well as applicable policies, memorandums, field operational manuals, 
and training materials developed by OI, DRO, and OPLA headquarters 
offices. We also examined available data on alien apprehensions for 
worksite enforcement and fugitive operations to understand decision 
outcomes resulting from alien apprehension enforcement operations. We 
performed procedures to test the data's reliability and we concluded 
that the data were reliable for the purpose of our review. We also met 
with officials at OI, DRO, and OPLA in Washington, D.C; and interviewed 
ICE officers, supervisors, and managers in 14 ICE field offices--seven 
OI and seven DRO field offices--located in seven cities throughout the 
United States: Chicago, Detroit, Los Angeles, New York, Philadelphia, 
Phoenix, and San Diego. In addition, we interviewed ICE attorneys, 
supervisors, and managers in seven Chief Counsel Offices (which serve 
as OPLA's field offices) at these same locations. We asked both 
officers and attorneys about when and how they have exercised and are 
expected to exercise discretion in the course of their duties related 
to alien removal.[Footnote 6] We selected these locations considering 
field office size, ICE data on alien apprehensions, and geographic 
dispersion. As we did not select probability samples of field offices 
to visit and ICE officers and attorneys to interview, the results of 
these interviews may not represent the views of ICE officers and 
attorneys nationwide. 

We also reviewed field operational manuals, headquarters policy 
memorandums, locally developed field guidance, and training materials. 
We asked headquarters officials and officers and attorneys in the field 
about the guidance and information that would help to inform alien 
apprehension and removal decisions available to officers, attorneys, 
and their supervisors and managers. At headquarters and the various 
field locations, we also examined available documentation on internal 
controls in place to guide supervisory and managerial oversight and 
monitoring of alien apprehension and removal decisions, and inquired 
about procedures and practices for assessing the exercise of discretion 
and outcomes associated with alien apprehension and removal decisions. 
We compared the internal controls in place with the standards for 
internal control to determine whether ICE's internal controls are 
designed to provide assurance that its officers and attorneys are best 
equipped to consistently exercise discretion in support of its 
operational objectives.[Footnote 7] Appendix I discusses the scope of 
our work and the methodology in greater detail. 

We conducted our work for this report from August 2006 through 
September 2007 in accordance with generally accepted government 
auditing standards. 

Results in Brief: 

At the 14 ICE OI and DRO field offices we visited, policies and 
procedures allow ICE officers to exercise discretion at multiple points 
throughout the alien removal process--encountering aliens, apprehending 
aliens, issuing removal charges, detaining removable aliens, pursuing 
removal proceedings in immigration court, and executing a final removal 
order. The initial phases of the alien removal process involve the most 
discretion--specifically, decisions about whether to initiate removal 
action, apprehend aliens, issue removal documents, and detain aliens. 
Officers typically encounter two categories of aliens who are subject 
to removal: (1) aliens who are the target of an investigation (e.g., 
the subject of a fugitive operation designed to locate and remove 
aliens who have ignored prior removal orders) and (2) aliens who are 
not the target of an investigation but whom officers encounter through 
the course of an operation. Officers told us that when they encounter 
aliens who are fugitives, criminals, or other investigation targets, 
their ability to exercise discretion is limited by clearly prescribed 
policies[Footnote 8] and procedures governing the handling of targeted 
aliens--with the exception of extenuating circumstances such as serious 
illnesses. However, officers at all seven DRO and seven OI field 
offices we visited told us that they do exercise discretion when 
determining how to process aliens who are not fugitives or criminals 
and are not investigation targets, based on humanitarian circumstances, 
such as medical issues or being the sole caregiver for minor children. 
In such circumstances, officers can, based on the circumstances of the 
case, decide to apprehend an alien and transport the alien to an ICE 
facility to initiate the removal process, or the officer could exercise 
an alternative method to initiate this process including issuing a 
notice to appear (NTA) by mail or scheduling an appointment for the 
alien to report at an ICE facility at a later date. Officers told us 
that they will, in limited circumstances, issue an NTA by mail or 
schedule an appointment as an accommodation to aliens who cannot be 
physically present at a facility due to humanitarian circumstances. 
Officers told us that once they decide how to initiate the removal 
process (e.g., apprehending an alien or scheduling an appointment for 
later processing), they have some discretion in determining which 
removal option to employ, including whether to initiate formal removal 
proceedings, which typically result in a hearing before an immigration 
judge, or to grant voluntary departure in lieu of initiating formal 
removal proceedings. Once a charge is issued, officers also have 
discretion, with the exception of certain mandatory detention 
requirements,[Footnote 9] to decide whether to detain an alien, based 
on the circumstances of the case and taking account of both 
humanitarian and resource issues. As aliens move further along the 
apprehension and removal process, there are fewer circumstances that 
require officers and attorneys to exercise discretion, as discretionary 
options are limited by fixed policies and guidelines.[Footnote 10] 
Chief Counsel Office attorneys have limited discretion to terminate 
removal proceedings and can do so if, for example, an alien is eligible 
for an immigration benefit, such as lawful permanent residence. DRO 
officers, who are responsible for executing final removal orders, can 
postpone an alien's removal date-- by granting a stay or a deferred 
action--if circumstances merit such actions, but they rarely exercise 
these options. 

ICE's OI and DRO officers are to rely on their field operational 
manuals, guidance provided by supervisors, and training to guide their 
decision making about alien apprehensions and removals. Consistent with 
internal control standards, which call for training to be aimed at 
developing and retaining employee skills to meet changes in 
organizational needs,[Footnote 11] ICE has taken steps to review and 
update segments of its training curricula that may help support officer 
decision making for alien apprehension and removal. For example, ICE 
has instituted a specific worksite enforcement training module for OI 
agents and Spanish language training for newly hired DRO officers. 
Internal control standards also call for agencies to develop and 
document detailed policies, procedures and practices to ensure that 
they are an integral part of operations. ICE headquarters currently has 
three sources to document established policies, procedures, and 
practices that affect the exercise of discretion in the alien removal 
process: (1) OI and DRO field operational manuals; (2) DHS and ICE 
memorandums; and (3) an ICE worksite enforcement guidebook. However, 
the guidance on the exercise of discretion in the alien removal process 
is not comprehensive and up to date. Specifically, the guidance does 
not serve to fully support officer decision making in cases involving 
humanitarian issues and aliens who are not primary targets of ICE 
investigations. First, despite a sharp increase in ICE's worksite and 
fugitive operations in recent years, the OI and DRO operational 
manuals, which are largely unchanged from before the creation of the 
Department of Homeland Security (DHS) and ICE's placement in it, do not 
reflect ICE's expanded worksite and fugitive operations, nor do they 
clearly and comprehensively address humanitarian and other issues 
associated with these operations. ICE has begun efforts to update these 
manuals, but it does not have time frames for completing these updates 
and it is unclear whether the revisions would include guidance on the 
exercise of discretion. Second, although the various ICE organizational 
units with removal responsibilities have issued guidance in the form of 
their own memorandums to inform the exercise of discretion around 
humanitarian issues, these memorandums also do not comprehensively 
address the various circumstances the officers and attorneys may 
encounter. Moreover, even though some memorandums are potentially 
informative for multiple ICE units, they do not clearly apply outside 
the unit that created them. Third, although ICE plans to regularly 
update its worksite enforcement guidebook based on lessons learned from 
past worksite operations, the current guidebook that ICE provided us in 
August 2007 does not instruct officers on how to identify and process 
aliens with humanitarian issues in large worksite operations or 
otherwise. The lack of comprehensive and up to date guidance puts ICE 
officers at risk of taking actions that do not support the agency's 
operational objectives. This risk is greatest in larger scale 
operations, including worksite enforcement and fugitive operations, 
where officers may encounter numerous aliens with humanitarian issues 
and aliens who are not investigation targets. In addition to the 
guidance outlined in field operational manuals, memorandums, and the 
guidebook, ICE officers also require timely information regarding legal 
developments--such as court decisions modifying existing 
interpretations of immigration laws--to guide officers' decision 
making. Regional ICE Chief Counsel Offices are responsible for 
disseminating this information. During our field visits, 3 of the 14 OI 
and DRO offices reported receiving the necessary legal information, 
while others said this has not happened. ICE does not have a formal 
mechanism to help ensure consistent dissemination of this information 
across field offices; rather, each Chief Counsel Office independently 
decides when and what information about legal developments is 
disseminated. These legal developments affect officers' decisions, and 
without current information, officers are at risk of making incorrect 
removal disposition decisions that could result in the termination of a 
removal case. 

ICE has two control mechanisms in place to monitor its removal 
operations--established supervisory review practices and procedures and 
an inspection program. However, ICE does not have a mechanism to allow 
it to analyze information specific to the exercise of discretion across 
all units. Internal control standards advise agencies to design 
internal controls to ensure that ongoing monitoring occurs in the 
course of normal operations.[Footnote 12] This monitoring includes 
regular management and supervisory activities, comparisons, 
reconciliations, and other actions people take in performing their 
duties. Consistent with internal control standards that call for 
agencies to ensure that supervision is performed continuously in agency 
operations, ICE relies on supervisory oversight as a key management 
control to oversee officer decision making and to ensure that 
discretion is exercised appropriately with regard to alien 
apprehensions and removals. Officials also told us that operations are 
typically conducted in team environments and that officers rely on the 
teams' collective judgment in determining how to exercise discretion 
for these aliens. Headquarters officials told us that supervisors at 
both DRO and OI field offices are required to sign removal 
dispositions, including NTAs, voluntary departures, and other removal 
dispositions.[Footnote 13] In addition, officials at all 14 DRO and OI 
field offices we visited told us that supervisors are responsible for 
reviewing instances when officers exercise discretion, such as when 
encountering aliens with humanitarian factors. ICE has also recently 
instituted an inspection program for its OI field offices to help 
provide assurance that its operations are in line with its operational 
objectives, and plans to institute a similar program for DRO offices. 
However, ICE lacks other control elements to help it monitor program 
performance across the 75 OI, DRO, and Chief Counsel field offices. 
Specifically, internal control standards recommend that managers 
compare trends in actual performance to expected results throughout the 
organization in order to identify any areas that may require corrective 
action to help ensure that operations continually support operational 
objectives. Given that 75 field offices are involved in the alien 
apprehension and removal process and that oversight of these offices 
lies with three ICE units, a comprehensive mechanism for reviewing 
officers' decision making could provide ICE with meaningful information 
to promote the appropriate use of discretion, identify best practices, 
and analyze any significant differences across field offices in order 
to take appropriate action. ICE officials told us that modifying 
existing databases to collect the details of discretionary decisions 
made by officers needed to monitor performance across all offices could 
be costly. However, having information on the use of discretion could 
provide ICE senior managers enhanced assurance that officers and 
supervisors across field offices are making decisions that reflect the 
agency's operational objectives regarding alien apprehension and 
removals. Moreover, even though ICE has ongoing and planned updates to 
its information systems, it has not evaluated the costs and 
alternatives for creating a mechanism capable of providing ICE with 
usable information that it can analyze to identify trends in the 
exercise of discretion. Without assessing the costs and alternatives 
for creating such a mechanism, ICE is not in a good position to select 
and implement an approach that will provide ICE assurance that it can 
identify any best practices that should be reinforced or areas that 
might require corrective actions--by, for example, modifying policies, 
procedures, or training. 

To enhance ICE's ability to inform and monitor its officers' use of 
discretion in alien apprehensions and removals, we are recommending 
that the Secretary of Homeland Security direct the Assistant Secretary 
of ICE to take the following three actions: (1) develop time frames for 
updating existing policies, guidelines, and procedures for alien 
apprehension and removals and include factors that should be considered 
when officers make apprehension, charging, and detention determinations 
for aliens with humanitarian issues; (2) develop a mechanism to help 
ensure that officers are consistently provided with updates regarding 
legal developments; and (3) evaluate the costs and alternatives for 
developing a reporting mechanism by which ICE senior managers can 
analyze trends in the use of discretion across ICE's field offices to 
help identify areas that may require management actions--such as 
changes to guidance, procedures, and training--to address problems or 
support development of best practices. 

DHS agreed with our recommendations and outlined actions planned to 
address them. These plans entail reevaluating and republishing all 
existing policies, guidelines, and procedures pertaining to the 
exercise of discretion during calendar year 2008; developing best 
practices to ensure the latest legal updates are disseminated to agents 
and officers through each Chief Counsel's Office; and, by December 1, 
2007, initiating an evaluation of the costs and alternatives for 
developing a mechanism by which to analyze trends in the use of 
discretion. 

Background: 

Estimates of the size of the alien population subject to removal vary. 
A report from the Pew Research Center estimated the population of 
unauthorized aliens in the United States to be approximately 12 million 
as of March 2006.[Footnote 14] According to DHS, the population of 
aliens subject to removal from the United States has grown in recent 
years. DHS's Office of Immigration Statistics estimated that the 
population of aliens subject to removal has increased by half a million 
from January 2005 to January 2006. Additionally, DHS has estimated that 
the removable alien population grew by 24 percent from 8.5 million in 
January of 2000 to 10.5 million in January of 2005. 

Aliens who are in violation of immigration laws are subject to removal 
from the United States. Over 100 violations of immigration law can 
serve as the basis for removal from the United States, including, among 
other things, criminal activity, health reasons (such as having a 
communicable disease), previous removal from the United States, and 
lack of proper documentation. ICE investigations resulted in 102,034 
apprehensions, or about 8 percent of the approximately 1.3 million DHS 
apprehensions in 2005. Four main categories constituted the basis for 
aliens removed by DHS in 2005: (1) aliens entering without inspection, 
by, for example, illegally crossing the border where there is no formal 
U.S. port of entry; (2) aliens attempting to enter the United States 
without proper documents or through fraud, at U.S. ports of entry; (3) 
aliens with criminal convictions or believed to have engaged in certain 
criminal activities, such as terrorist activities or drug trafficking; 
and (4) aliens who are in violation of their terms of entry (e.g., 
expired visa). 

ICE Officers Exercise Discretion, Particularly for Aliens with 
Humanitarian Issues or Who Are Not Investigation Targets: 

Our review of ICE policies and procedures, along with interviews at ICE 
field offices, showed that officers exercise discretion throughout 
various phases of the alien apprehension and removal process, but the 
initial phases of the process--initiating removals, apprehending 
aliens, issuing removal documents and detaining aliens--involve the 
most discretion. Officers in OI and DRO field offices told us that they 
exercise discretion for aliens with humanitarian issues and aliens who 
are not investigation targets on a case-by-case basis with guidance and 
approval from supervisors. Officers told us they typically encounter 
(1) aliens who are the target of an investigation and (2) aliens who 
are not the target of an investigation but who are encountered through 
the course of an operation and are subject to removal. While officers 
told us that discretion with regard to aliens who are fugitives, 
criminals, and other investigation targets is limited by clearly 
prescribed policies and procedures, they told us that they have more 
latitude to exercise discretion when they encounter aliens who are not 
fugitives or criminals and are not targets of ICE investigations, 
particularly when encountering aliens with humanitarian issues. 

Most Discretion Is Exercised in the Initial Phases of the Apprehension 
and Removal Process: 

The alien apprehension and removal process encompasses six phases: (1) 
initial encounter, (2) apprehension, (3) charging, (4) detention, (5) 
removal proceedings, and (6) final removal. Our review of federal 
regulations, ICE policies, guidance, and interviews showed the parts of 
the removal process from the time officers encounter aliens as part of 
an operation to the time they determine whether to detain an alien 
involve the most discretion. During removal proceedings and final 
removal, ICE attorneys and DRO officers can exercise discretion only in 
clearly delineated situations prescribed by ICE policies and statutory 
and regulatory requirements. 

Officers told us that during the initial phases of the apprehension and 
removal process, they encounter situations that require them to pursue 
alternate ways to initiate removals, in lieu of apprehending aliens. 
During encounters with aliens, officers told us that they decide how to 
exercise discretion for aliens on a case-by-case basis with input from 
supervisors or experienced officers. Specifically, officers told us 
that they exercise discretion when they encounter aliens who (1) 
present humanitarian concerns such as medical issues or being the sole 
caregiver for minor children or (2) are not the primary target of their 
investigations. 

Initial Encounter Phase: 

DRO and OI officers told us that their primary goal is to initiate 
removal proceedings for any alien they encounter who is subject to 
removal. However, officers told us that in some instances, they might 
decide not to pursue any action against an alien who they suspect to be 
removable. Officers at two OI and one DRO field office told us that, in 
some instances, they are unable to initiate removal action against 
every alien they encounter during the course of an operation. Officers 
noted that several factors--such as the availability of detention 
space, travel time to an alien's location, and competing enforcement 
priorities--affect their decisions to initiate removal action against 
an alien. Officers at one of the seven OI field offices we visited also 
told us that because of limited resources they have to make trade-offs 
between dedicating resources to aliens who pose a threat to public 
safety and those who do not--that is, noncriminal aliens--which in some 
instances result in decisions to not initiate removal action against 
noncriminal aliens. 

Apprehension Phase: 

Our review of DHS and ICE guidance showed that officers' ability to 
exercise discretion is limited for aliens who are investigation 
targets, such as criminal aliens and fugitive aliens who have ignored a 
final removal order. Discretion for apprehending these aliens is 
limited due to clearly prescribed policies, and procedures--such as 
requirements under the INA to detain terrorists or certain criminals-- 
governing the handling of these aliens.[Footnote 15] By contrast, 
officers at all seven DRO and seven OI field offices we visited told us 
that they have discretion to process and apprehend aliens who are not 
investigation targets or aliens who present humanitarian circumstances. 
In such circumstances, officers told us that they can exercise 
discretion by deciding to (1) apprehend an alien and transport the 
alien to an ICE facility for processing, (2) issue the alien an NTA by 
mail, or (3) schedule an appointment for the alien to be processed at 
an ICE facility at a later date. 

For example, in looking for a criminal alien who is the target of an 
investigation, a fugitive operations team may encounter a friend or 
relative of the targeted alien--who is also removable--but not the 
primary target of an ICE investigation. If the friend or relative has a 
humanitarian circumstance, like being the primary caregiver for small 
children, the officers can decide to not apprehend the friend or 
relative and opt for processing at a later time after reviewing the 
circumstances of the case and determining that no other child care 
option is available at the time. In such instances, ICE headquarters 
officials told us that officers are to confirm child welfare claims 
made by an alien and determine whether other child care arrangements 
can be made. Headquarters officials also told us that aliens do not 
always divulge that they are the sole caretakers of children but 
explained that if ICE agents became aware of an alien's child welfare 
responsibility, agents must take steps to ensure that the child or 
children are not left unattended. 

In addition, officers at two OI offices and one DRO office told us that 
in some instances, such as when aliens are sole caretakers for minor 
children or are ill, they will schedule appointments for aliens who are 
not investigation targets to process them at a later date. Officers at 
five of the seven OI field offices and two of the seven DRO offices we 
visited also told us that they will mail an NTA--as an alternative to 
apprehension--to aliens who present humanitarian issues such as medical 
conditions or child welfare issues. At another OI field office, 
officers told us that when determining whether to apprehend aliens or 
use an alternative to apprehension--for aliens who are not 
investigation targets--they also consider manpower availability. 

Charging Phase: 

Our review of ICE guidance and procedures showed that most of an 
officer's discretion in the charging phase relates to the decision to 
grant voluntary departure. Officers told us that when not statutorily 
prohibited from granting voluntary departure, they have some discretion 
in determining whether to issue an NTA and thus initiate formal removal 
proceedings or grant voluntary departure in lieu of initiating formal 
removal proceedings, which typically results in a hearing before an 
immigration judge. Officers told us that they may consider factors like 
humanitarian concerns and ICE priorities when exercising discretion to 
grant voluntary departure. 

On the basis of our review of ICE data, we noted significant variation 
in the use of voluntary departure across field offices.[Footnote 16] 
Our review of OI apprehension data also showed that three OI field 
offices near the U.S. southwestern border initiated a relatively higher 
number of voluntary departures (equal or greater than the number of 
NTAs issued). ICE headquarters officials noted that officers at field 
offices near the U.S. southwestern border employ voluntary departure 
generally because of their proximity to the U.S.-Mexico border, which 
enables them to easily transport Mexican nationals to Mexico. Figure 1 
illustrates the number of NTAs and voluntary departure issued by OI 
field offices. 

Figure 1: Fiscal Year 2006 Removal Dispositions Issued by OI Field 
Offices: 

[See PDF for image] 

Source: GAO analysis of OI data. 

Note: ICE officers employ other removal dispositions, such as those 
employed to remove criminal aliens or fugitive aliens who have failed 
to depart the United States. These removal dispositions and others are 
not shown in this graphic because NTAs and voluntary departures 
constitute the largest number of removal options employed by ICE 
officers. 

[End of figure] 

Detention Phase: 

Our review of procedures also showed that if detention is not mandated 
by the INA,[Footnote 17] officers have discretion to determine if an 
alien will be detained or released pending the alien's immigration 
court hearing. When making this determination, ICE guidance instructs 
officers to consider a number of factors, such as humanitarian issues, 
flight risk, availability of detention space, and whether the alien is 
a threat to the community. Officers at two DRO field offices we visited 
told us that they exercise discretion to release aliens from custody if 
appropriate facilities are not available or if detention space is 
needed for aliens who pose a greater threat to public safety. At one OI 
field office, officers provided an example of an operation where they 
released two women and two children on their own recognizance because 
of the lack of appropriate detention space to house women and children. 
Officers at another DRO field office also noted that detaining women 
and juveniles can be challenging because of limited space to 
accommodate them. Detention determinations made by officers can be 
reexamined by immigration judges upon an alien's request. 

Officers and Attorneys Have Less Discretion Once Removal Proceedings 
Have Been Initiated: 

Our review of ICE policy and DRO's field operational manual showed that 
ICE attorneys--who generally enter the process once proceedings have 
begun--and officers have less discretion in the later phases of the 
apprehension and removal process. Once an alien's case arrives at the 
removal proceedings phase and is being reviewed by ICE attorneys, we 
found that the use of discretion at this stage is limited by clear 
policy and guidelines. Our review of ICE policy and interviews with 
attorneys at 5 of 7 Chief Counsel Offices showed that most aliens have 
few alternatives to appearing before immigration court after entering 
the removal proceeding phase. Circumstances in which ICE might not 
pursue proceedings include a legally insufficient NTA; an alien's 
eligibility for an immigration benefit, such as lawful permanent 
residency; and an alien's serving as a witness in a criminal 
investigation or prosecution. In these specific cases, ICE attorneys 
can exercise discretion not to pursue proceedings by asking the 
immigration court to terminate removal proceedings if the NTA has been 
filed with the court. ICE OPLA guidance also permits ICE attorneys to 
take steps to resolve a case in immigration court for purposes of 
judicial economy, efficiency of process, or to promote justice. 
Examples in the guidance include cases involving sympathetic 
humanitarian circumstances like an alien with a U.S. citizen child with 
a serious medical condition or disability, or an alien or close family 
member who is undergoing treatment for a potentially life-threatening 
disease. 

ICE policy states that DRO may exercise discretion and grant some form 
of relief to the alien, such as a stay of removal and deferred action 
at the final phase of the process. A stay of removal is specifically 
authorized by statute and constitutes a decision that removal of an 
alien should not immediately proceed. Deferred action gives a case a 
lower removal priority, but is not an entitlement for the alien to 
remain in the United States. While some aliens could be granted a stay 
or deferred action by DRO field office managers, DRO officers told us 
that DRO seeks to execute removal orders in the vast majority of cases. 
DRO officers in field offices told us that they could recall only a 
handful of cases when DRO officers did not execute a removal order 
after it was issued by an immigration judge. Supervisors in one DRO 
field office recalled a case in which a stay was granted to an 
aggravated felon who had a serious medical condition. 

ICE Has Strengthened Training Programs, but Lacks Comprehensive 
Guidance and Consistent Legal Updates to Inform Decision Making: 

Officers at DRO and OI field offices who are responsible for 
apprehending, charging, and detaining removable aliens are to rely on 
formal and on-the-job training, guidance provided by supervisors, and 
guidance provided in field operational manuals to inform their decision 
making regarding alien apprehensions and removals. Consistent with 
internal control standards, which call for training to be aimed at 
developing and retaining employee skill levels to achieve changing 
organizational needs, ICE has updated some of the training it offers to 
officers responsible for making alien apprehension and removal 
decisions.[Footnote 18] Some of the updated training includes, among 
other things, implementing worksite enforcement training, supervisory 
training for OI supervisors, and Spanish language training for newly 
hired DRO officers. These updates have the potential to provide 
critical information to officers and supervisors to better support 
their decision making. However, ICE guidance, including ICE's field 
operational manuals and ICE memorandums, on the exercise of discretion 
during the alien apprehension and removal process does not serve to 
fully support officer decision making in cases involving humanitarian 
issues and aliens who are not primary targets of ICE investigations. 
For example, ICE has not completed efforts to provide officers with 
complete and up to date guidance to reflect expanded worksite and 
fugitive operations enforcement efforts. ICE headquarters officials 
told us that they do not have a time frame for completing efforts to 
update available guidance in field operational manuals. In addition, 
although Chief Counsel Offices provide information regarding legal 
developments to DRO and OI officers to guide their decision making, ICE 
does not have a mechanism to ensure that such information is 
disseminated consistently to officers across field offices. The lack of 
comprehensive guidance and a mechanism by which to help ensure that 
officers receive consistent information regarding legal developments 
puts ICE officers at risk of taking actions that are not appropriate 
exercises of discretion and do not support the agency's operational 
objectives. 

ICE Has Instituted Training for Supervisors and Specialized Operations 
and Has Other Training Initiatives in Early Phases of Development: 

Internal control standards state that training should be aimed at 
developing and retaining employee skill levels to meet changing 
organizational needs. Officers at DRO and OI field offices who are 
responsible for apprehending, charging, and detaining removable aliens 
rely on formal and on-the-job training and guidance provided by 
supervisors to inform their decision making regarding alien 
apprehensions and removals. ICE has recently begun undertaking reviews 
and revisions of training that are consistent with these internal 
controls by updating and revising existing training curricula and 
implementing new training curricula for OI and DRO officers to provide 
critical information to officers and supervisors to better inform their 
decision making. These actions are important steps for providing 
officers with relevant information to inform their decision making. In 
early 2007, OI instituted a 2-week worksite enforcement training course 
geared toward informing ICE officers regarding criminal investigation 
techniques and procedures, which also provides information on the 
exercise of discretion regarding aliens who present humanitarian 
issues. OI headquarters officials identified worksite enforcement as a 
training need, since these operations are expanding, and an OI 
headquarters official told us that most OI officers had not 
participated in major worksite enforcement operations since 1998 and 
that many of the officers who participate are temporarily assigned to 
the operation from other duties or locations. Because of expanded 
worksite enforcement operations, officials told us that OI instituted 
worksite enforcement training, which will be offered to 100 OI officers 
per year. Headquarters officials told us that resource constraints 
preclude ICE from offering worksite enforcement training to all 
officers. 

In addition to worksite enforcement training, OI officials told us that 
they are also in the process of instituting additional changes to 
training curricula that could better support officer decision making: 

* OI officials told us that they developed a 3-week training course for 
first-line supervisors, with 1 week of the course designed to provide 
information on legal issues pertaining to removal dispositions, such as 
instances when to issue an NTA or grant voluntary departure. 

* An OI official told us that OI is developing a 3-week refresher 
training course for experienced OI officers, to reinforce these 
officers' knowledge of alien apprehension and removal operations. 
According to OI's chief of training, this course should be implemented 
by the second quarter of fiscal year 2008. 

* OI officials have revised an "On the Job" training manual that tracks 
tasks that new officers must complete in their first 18 months on the 
job. According to an OI training official, by completing the tasks 
outlined in the manual, officers should have a full understanding of 
the requirements for processing aliens, which include exercising 
discretion throughout the apprehension and removal process (e.g., 
whether to immediately apprehend the alien or to mail an NTA). 

Like OI officials, DRO officials have also taken steps to strengthen 
training for DRO officers. In April 2007, DRO added a Spanish language 
course to its basic training curriculum. According to DRO headquarters 
training officials, this training will better equip officers to 
communicate with aliens and thus help ensure that officers make 
appropriate decisions about how to exercise discretion for aliens. In 
addition, DRO is developing a 3-week refresher training for experienced 
DRO officers designed to provide officers with skills, tactics and 
legal updates pertaining to alien apprehension and removal operations 
and plans to implement this course in October 2008. DRO headquarters 
officials also told us that they will institute a 2-year "On the Job" 
training program in September 2007. According to officials, this 
program is to provide newly appointed officers with additional training 
on immigration laws, competencies, and tasks related to their jobs. 
While the recent changes to the OI and DRO training curricula are 
positive steps in better aligning ICE training with operations, it is 
too soon for us to assess the effectiveness of these efforts. 

Operational Guidance Lacks Comprehensive Information to Inform Decision 
Making and Has Not Been Updated to Fully Reflect Current Operations: 

According to internal control standards, management is responsible for 
developing and documenting the detailed policies, procedures, and 
practices to ensure that they are an integral part of operations. DRO 
and OI officers generally rely on (1) OI and DRO field operational 
manuals; (2) DHS and ICE memorandums; and (3) an OI-developed worksite 
enforcement operational guidebook for guidance and policies to perform 
their duties, including making decisions regarding alien apprehensions 
and removals. However, ICE guidance to instruct officer decision making 
in cases involving humanitarian issues and aliens who are not primary 
targets of ICE investigations during the alien apprehension and removal 
process is not comprehensive and has not been updated by headquarters 
officials to reflect ICE's expanded worksite and fugitive operations. 
In addition, although officers exercise discretion when deciding 
whether or not to take action to initiate the removal process, ICE does 
not have guidance on officers' exercise of discretion on who to stop, 
question, and arrest when initiating the removal process. Without 
comprehensive policies, procedures, and practices, ICE lacks assurance 
that management directives will be conducted as intended and that ICE 
officers have the appropriate tools to fully inform their exercise of 
discretion. 

ICE's OI and DRO field operational manuals were created by ICE's legacy 
agency--Immigration and Naturalization Service (INS), which was 
reorganized under the newly formed Department of Homeland Security in 
March of 2003. Both of these manuals, which are largely unchanged from 
the guidance developed and employed by INS, are currently undergoing 
revisions. Our review of these manuals shows that they do not offer 
comprehensive and updated guidance to instruct officers on the exercise 
of discretion in cases involving aliens with humanitarian issues and 
aliens who are not targets of ICE investigations. For example, OI's 
field operational manual offers some guidance on options for addressing 
aliens with caregiver issues who are encountered during worksite 
operations, such as ensuring that an alien's dependents receive timely 
and appropriate care. However, the guidance does not include, for 
example, provisions for aliens with medical conditions. OI headquarters 
officials told us that they are in the process of revising OI's field 
operational manual but have not yet updated the sections corresponding 
to alien apprehensions and removals. 

With respect to DRO's field operational manual, some guidance is 
available to help officers decide whether to detain aliens pending 
their immigration hearings, but it does not clarify how officers should 
exercise discretion to determine detention for nonmandatory detention 
cases, especially for aliens with humanitarian issues or aliens who are 
not targets of ICE investigations. DRO headquarters officials told us 
that they are revising a chapter in the manual on fugitive operations 
but the revisions are not yet available to DRO officers in the field. 
For both the OI manual and the fugitive operations chapter in the DRO 
manual, headquarters officials told us that they did not yet know if 
the revisions would include guidance on the use of discretion for 
aliens with humanitarian issues or aliens who are not the targets of 
ICE investigations. Moreover, OI and DRO officials could not provide a 
time frame for when the revisions will be completed. 

The various ICE organizational units with removal responsibilities have 
issued some guidance to help guide their own officers' and attorneys' 
exercise of discretion for aliens with humanitarian issues, but the 
guidance either is not comprehensive with regard to the various 
circumstances the officers and attorneys may encounter or does not 
apply to officers who have the authority to initiate removal 
proceedings. A memo issued in 2006 by DRO to its field offices, 
outlines severe medical illnesses[Footnote 19] as a basis for 
exercising discretion when deciding whether to detain aliens who are 
not subject to mandatory detention.[Footnote 20] While this memo 
provides important guidance for exercising discretion during the 
detention phase for aliens with medical issues, it does not address 
child welfare and primary caretaker issues.[Footnote 21] In addition, a 
2005 memo issued by OPLA permits ICE attorneys to take steps not to 
pursue proceedings by asking the immigration court to terminate removal 
proceedings if the NTA has been filed with the court. Examples in the 
guidance include cases involving sympathetic humanitarian circumstances 
like an alien with a U.S. citizen child with a serious medical 
condition or disability, or an alien or close family member who is 
undergoing treatment for a potentially life-threatening disease. 
However, this memo is directed at Chief Counsel attorneys, who do not 
have the authority to initiate removal proceedings. Instead, only 
supervisory DRO and OI officers can initiate removals, and as a result 
the memo is not clearly applicable to them. 

In addition, DHS, OI, DRO, and OPLA have also issued their own separate 
memorandums that guide officers' actions at different points of the 
apprehension and removal process. Each memorandum is generally directed 
to officers and attorneys under the respective ICE unit that issues it, 
resulting in a number of memos distributed via a number of different 
mechanisms within each ICE unit. These memorandums do not offer 
comprehensive guidance on exercising discretion for aliens with 
humanitarian circumstances or aliens who are not the primary targets of 
ICE investigations. For example, OI issued a memo in May 2006, which 
instructs officers to schedule appointments as a last resort for 
juvenile aliens, elderly aliens, or aliens with health conditions to be 
processed at a later date, rather than apprehend these aliens at the 
time of the encounter or mail them an NTA. This guidance addresses 
important humanitarian issues, but it is only directed to ICE officers 
who are responding to calls from local law enforcement agencies. 
Furthermore, it does not define or fully delineate circumstances that 
might constitute "last resort." Another memo issued by DHS in October 
2004 provides officers and supervisors with flexibility on detaining 
aliens (who are not subject to mandatory detention) depending on the 
circumstances of the case, such as available bed space. However, this 
memo does not offer specific guidance on determining detention for 
aliens with humanitarian circumstances or aliens who are not primary 
targets of ICE investigations. 

In addition to ICE field operational manuals and various memorandums, 
an OI headquarters official told us that ICE has recently instituted a 
worksite enforcement operational guidebook to assist in the proper 
planning, execution, and reporting of worksite enforcement operations. 
Our review of this guidebook showed that it discusses, among other 
things, operational planning and coordination, including instructions 
on reporting requirements at the arrest site and working with other ICE 
units, like DRO. However, although ICE plans to regularly update its 
worksite enforcement operational guidebook based on lessons learned 
from past worksite operations, the current guidebook that ICE provided 
us in August 2007 does not include any guidance about how officers 
should factor humanitarian issues into their decision making during the 
apprehension and removal process. Finally, in our review of the 
worksite enforcement operational guidebook, we did not find guidance to 
inform officers' exercise of discretion on whom to stop, question, and 
arrest when initiating the removal process--guidance that was also 
lacking in the various operational manuals and memorandums. 

In our review of documents from 26 OI field offices, we also noted that 
only 3 of these field offices have developed local guidance to guide 
officers' discretion in the initial phases of the apprehension and 
removal process. However, the local guidance we reviewed is not 
comprehensive because the 3 offices do not have guidance that covers 
the use of discretion throughout the phases of the alien apprehension 
and removal process when officers can exercise discretion. For example, 
1 of the 3 offices has guidance on scheduling appointments for future 
processing for aliens with humanitarian concerns. Another office has 
guidance that covers factors to consider when exercising discretion for 
cases involving humanitarian issues as well as guidance on deciding 
whether to detain aliens who are not investigation targets. 

Current ICE Operations Present a Need for Guidance on Humanitarian 
Issues and Aliens Who Are Not ICE Targets: 

ICE has recently expanded its worksite enforcement and fugitive 
operations, increasing the probability that officers in the field will 
have to exercise discretion in their encounters with aliens who present 
humanitarian issues or aliens who were not the targets of their 
investigations--particularly noncriminal aliens. With these expanded 
operations, the need for up to date and comprehensive guidance to 
reduce the risk of improper decision making becomes increasingly 
important. According to ICE data, in fiscal year 2006, ICE made, 
through its worksite enforcement operations, 716 criminal arrests, 
which include aliens subject to removal who are charged with criminal 
violations, and 3,667 administrative arrests, which refer to alien 
workers who are unlawfully present in the United States but have not 
been charged with criminal violations. These data show a sharp increase 
from fiscal year 2005, as noted in figure 2. Through July 2007 of 
fiscal year 2007, ICE made 742 criminal arrests and 3,651 
administrative arrests in its worksite operations; these arrests 
surpassed the combined arrests for worksite enforcement operations from 
fiscal year 2002 to fiscal year 2005. According to a senior ICE 
headquarters official, from fiscal year 2003 through the third quarter 
of fiscal year 2007, ICE has also experienced over a six-fold increase 
in the number of new officers dedicated to worksite enforcement 
operations, many of whom are temporarily assigned to worksite 
operations. 

Figure 2: Worksite Enforcement Arrests, Fiscal Year 2002 through Fiscal 
Year 2007: 

[See PDF for image] 

Source: ICE data. 

[End of figure] 

ICE reported that it has also expanded fugitive operations and plans to 
increase the number of fugitive operation teams from 18 in 2006 to 75 
by the end of fiscal year 2007. Annual performance goals for each of 
these teams call for 1,000 apprehensions per team. As of April 27, 
2007, ICE officers had arrested 17,321 aliens through its fugitive 
operation teams in fiscal year 2007, a 118 percent increase in arrests 
since fiscal year 2005. 

ICE's expanding worksite enforcement and fugitive operations both 
present officers with circumstances that could require the use of 
discretion, specifically cases that involve aliens with humanitarian 
issues or aliens who are not ICE targets. Expanded fugitive operations 
may increase the number of encounters that officers have with removable 
aliens who are not the primary targets or priorities of ICE 
investigations. For cases involving these aliens, additional guidance 
could provide ICE with better assurance that its officers are equipped 
to exercise discretion and prioritize enforcement activities 
appropriately. 

In large-scale worksite enforcement operations, officers have 
encountered numerous aliens who have presented humanitarian issues. For 
this type of case, comprehensive guidance on how to weigh relevant 
aspects of aliens' circumstances or humanitarian factors would provide 
ICE with enhanced assurance that officers are best equipped to 
appropriately determine whether aliens should be apprehended, how they 
should be charged, and whether they should be detained. 

A recent large-scale worksite enforcement operation in Massachusetts 
highlights the importance of having comprehensive and up to date 
guidance to help inform officers' decision making when they encounter 
aliens with humanitarian issues. In this operation, ICE officers 
encountered aliens who had humanitarian issues, including aliens who 
were primary caretakers of children and had to assess the totality of 
the circumstances in numerous cases, in real time, to decide how to 
handle each case in coordination with other entities, such as social 
service agencies, state government, and local law enforcement. ICE 
issued a fact sheet about this operation on its external Web site that 
discussed difficulties in coordinating and communicating with these 
entities on issues of operational plans, detention space, access to 
detainees, and information about arrestees. The fact sheet noted that 
ICE arrested 362 removable aliens and transported over 200 of these 
aliens to detention facilities in Texas due to a lack of bed space in 
Massachusetts. In addition, 60 aliens were initially released during 
administrative processing at the time of the operation for child 
welfare or family health reasons, and additional aliens were released 
later for these reasons. According to ICE officials, another concern 
ICE officers face as they attempt to exercise discretion is that these 
officers encounter aliens who sometimes do not divulge their status as 
sole caregivers for children. Complex environments like the one 
described here demonstrate the need for up to date and comprehensive 
guidance that supports ICE's operational objectives and use government 
resources in the most effective and efficient manner. 

No Mechanism Is in Place to Help Ensure Officers Consistently Have 
Necessary Information Regarding Legal Developments: 

Internal control standards state that effective communications should 
occur in a broad sense with information flowing down, across, and up 
the organization. This includes communicating information in a form and 
within a time frame that enables officials in carrying out their 
duties. In carrying out their duties, ICE officers require information 
on relevant legal developments--such as court decisions modifying 
existing interpretations of immigration laws--to help inform their 
decision making regarding removal dispositions (e.g., NTA or voluntary 
departure). However, ICE has not instituted a mechanism to ensure that 
legal developments are consistently disseminated to ICE officers across 
all field offices. For example, officers at only two DRO field offices 
and one OI field office we visited received current information on 
legal developments from their Chief Counsel Office, which is 
responsible for disseminating this information, while others did not 
receive such information at all or did not receive it when they needed 
it for case processing. In addition, officers at two of the seven OI 
field offices we visited expressed a need for more information 
regarding legal developments to better inform their decision making 
regarding removal dispositions. Officers at one OI field office told us 
that there are occasions when they do not receive the necessary legal 
guidance until they have already processed a case. Chief Counsel 
offices independently decide when and what information to disseminate 
regarding legal developments. Officers at seven DRO and six OI field 
offices we visited told us that they can consult Chief Counsel 
attorneys to seek guidance on legal issues. Although relying on Chief 
Counsel field offices to disseminate information and advise officers on 
legal issues can help officers when making decisions, without a 
formalized mechanism to consistently disseminate information that 
officers can use when they process cases, officers might not receive 
information necessary to make sound removal decisions that comply with 
the most recent legal developments. 

ICE Has Supervisory Review and an Inspection Program to Monitor Removal 
Operations but Lacks a Means to Analyze Information Specific to the 
Exercise of Discretion across All Field Offices: 

ICE has two control mechanisms in place to monitor its removal 
operations--established supervisory review practices and procedures and 
an inspection program. However, ICE does not have a mechanism to allow 
it to analyze information specific to the exercise of discretion. 
Internal control standards advise agencies to design internal controls 
to ensure that ongoing monitoring occurs in the course of normal 
operations. This monitoring includes regular management and supervisory 
activities, comparisons, reconciliations, and other actions people take 
in performing their duties. ICE relies primarily on the judgment of 
experienced field officers and supervisory reviews to provide assurance 
that officers' decision making complies with established policies and 
procedures. In addition to supervisory reviews, ICE has recently taken 
steps to institute an inspection program designed to oversee field 
offices' compliance with established policies and procedures. However, 
neither supervisory reviews nor ICE's newly instituted inspection 
program offers a mechanism for management to collect and analyze 
information specific to officers' exercise of discretion in alien 
apprehension and removal decisions across all field offices. The 
ability to collect and analyze data about the exercise of discretion 
across field offices could provide ICE with additional assurance that 
it can identify and respond to areas that may require some type of 
corrective action. Moreover, without these data and analyses, ICE is 
not positioned to compile and communicate lessons learned to help 
support officers' decision making capacity. 

Supervisory Reviews Serve as Primary Control over Officer Decision 
Making: 

One way for agencies to help ensure that ongoing monitoring occurs in 
the course of normal operations is to design appropriate supervision to 
help provide oversight of internal controls. Consistent with this 
activity, ICE policy requires supervisory review of officer decisions 
on a case-by-case basis to ensure that officers' decisions comply with 
established policies and procedures for alien apprehension and removal 
decisions. 

ICE officers are to document the specific immigration charges lodged 
against an alien, as well as the custody decision made by officers, on 
a standardized form. Throughout the alien apprehension and removal 
process, supervisors are responsible for reviewing and authorizing 
decisions made by officers. For example, when officers are determining 
whether to detain or release an alien from custody, ICE memorandums 
state that supervisors must approve an officer's decision.[Footnote 22] 
In addition, according to ICE headquarters officials, supervisors at 
both DRO and OI field offices are to review officers' apprehension and 
removal decisions to ensure that officers use the most appropriate 
removal disposition and to ensure that officers' decisions comply with 
legal requirements, policies, and procedures. Headquarters officials 
also told us that supervisors are responsible for approving and signing 
off on decisions to grant voluntary departure and issue NTAs and other 
removal dispositions issued by officers. 

Officials at all seven DRO and seven OI field offices we visited also 
told us that supervisors are responsible for reviewing instances when 
officers have exercised discretion, such as when encountering aliens 
with humanitarian issues. Officers at field offices we visited also 
noted that they consult with experienced officers or supervisors when 
making these decisions and that operations are typically conducted by 
teams where officers' collective knowledge is used to make 
discretionary decisions. Table 1 outlines the types of reviews 
conducted by experienced officers, supervisors, and managers at DRO and 
OI field offices. 

Table 1: Decisions Reviewed by Experienced Officers, Supervisors, and 
Managers: 

Phase: Apprehension; 
Type of decision: Decision not to apprehend an alien based on 
humanitarian or other factors[A]; 
Reviewing/approving official: 
* Senior officer/agent or lead officer/agent; 
* Supervisory special agent; 
* Supervisory detention and deportation officer; 
Review instituted as a result of: ICE policy. 

Phase: Charging; 
Type of decision: Decision to issue an NTA; 
Reviewing/ approving official: 
* Supervisory special agent; 
* Supervisory detention and deportation officer; 
Review instituted as a result of: 8 CFR, Section 239.1. 

Phase: Charging; 
Type of decision: Decision to grant voluntary departure; 
Reviewing/approving official: 
* Supervisory special agent; 
* Supervisory detention and deportation officer; 
Review instituted as a result of: 8 CFR, Section 240.25 ICE policy. 

Phase: Detention; 
Type of decision: Decision to detain or release alien on own 
recognizance or under order of supervision; 
Reviewing/approving official: 
* Supervisory detention and deportation officer; 
Review instituted as a result of: ICE policy. 

Phase: Removal proceedings; 
Type of decision: Decision to grant stay or deferred action; 
Reviewing/approving official: 
* Supervisory detention and deportation officer; 
* DRO assistant field office director; 
* DRO field office director[B]; 
Review instituted as a result of: ICE policy. 

Source: GAO analysis of ICE policies and practices. 

[A] Decisions not to apprehend aliens involve scheduling an appointment 
for processing at a later time and mailing a notice to appear to an 
alien's home. In addition to humanitarian factors, other factors that 
officers consider when making these decisions include manpower 
availability, detention availability, and competing enforcement 
priorities. 

[B] According to DRO field officers we interviewed, DRO field office 
directors are required to approve stays and deferred action. 

[End of table] 

ICE Has Instituted an Inspection Program to Help Monitor Operations, 
Including Alien Apprehensions and Removals for its OI Field Offices, 
and Plans a Similar Program for DRO Field Offices: 

ICE's Office of Professional Responsibility instituted an inspection 
program for OI field offices in July 2007, consistent with internal 
control standards for monitoring operations by designing mechanisms for 
identifying and communicating deficiencies to managers.[Footnote 23] 
According to the headquarters official responsible for overseeing the 
inspection program, ICE plans to implement a similar inspection program 
for DRO field offices in the fall of 2007. According to this official, 
the inspection program is designed to determine whether field offices 
are complying with the established policies and procedures selected for 
review. The inspection program consists of two areas: (1) an annual 
self-inspection process under which all field offices must respond to a 
Web-based questionnaire covering operational activities and (2) a field 
inspection program under which all OI and DRO field offices are to be 
inspected by headquarters officials at least once during a 4-year 
cycle. In instances where field offices are not compliant, field 
officials must develop a plan of action to address discrepancies that 
are identified. For OI offices, examples of areas that are to be 
reviewed include procedures for processing aliens, as well as methods 
for ensuring that operational plans are prepared and approved before 
arrests are conducted. For DRO field offices, areas that are to be 
reviewed, among other things, include compliance with procedures to 
ensure that aliens are served with a copy of an NTA, as well as 
procedures for completing and obtaining approval for operational plans 
in advance of fugitive operations. Our review of the self-inspection 
questionnaires and our discussion with the program manager showed that 
the inspection program is not designed to analyze information on 
officer decision making regarding alien apprehensions and removals. 

ICE Lacks a Mechanism to Collect and Analyze Data Specific to the 
Exercise of Discretion across All Field Offices: 

An important purpose of internal control monitoring is to allow 
agencies to assess the quality of performance over time.[Footnote 24] 
Specifically, internal control standards recommend that managers 
compare trends in actual performance to expected results throughout the 
organization in order to identify any areas that may require corrective 
action to help ensure operations support operational objectives. 
Although, ICE has some controls in place to monitor operations related 
to alien apprehensions and removals, neither supervisory review nor its 
inspection program offer managers information to specifically analyze 
officer decision making for trends across the 75 OI, DRO and Chief 
Counsel field offices that might indicate the need for a corrective 
action, such as additional training or clarification of procedures, or 
that might reveal best practices for achieving desired outcomes. ICE 
does not have a mechanism for collecting and analyzing data on 
officers' exercise of discretion in determining what removal processing 
option to employ, such as officers' basis for scheduling an appointment 
to process an alien at a later date for aliens who present humanitarian 
circumstances or the frequency of such actions. Additionally, ICE does 
not collect and analyze the actions taken by officers (e.g., scheduling 
an appointment, or mailing an NTA) in addressing aliens presenting 
humanitarian issues. Such information could be used by managers to 
identify trends in actions taken by officers to address aliens with 
humanitarian issues that could in turn be used to make any necessary 
modifications to guidance, policies or training. 

ICE policy outlines a mechanism to capture and analyze information 
regarding officers' discretionary decisions made as part of worksite 
enforcement operations, but this inspection mechanism has not been used 
consistently. ICE officials told us that, as part of worksite 
enforcement operations, its officers make decisions in the field on a 
case-by-case basis in a time-constrained environment. In recent 
worksite operations, officers have apprehended thousands of aliens in 
operations conducted in various cities across the nation. Our review of 
ICE's worksite enforcement training curriculum and OI's field 
operational manual showed that ICE policy outlines a key internal 
control--after-action reports--which are to capture, among other 
things, information on significant or unusual incidents or 
circumstances that may have occurred during an operation; a listing of 
the number of aliens arrested, reasons for the release of detained or 
arrested aliens, and any allegations of civil rights violations or 
other complaints.[Footnote 25] However, a senior headquarters official 
responsible for overseeing OI's worksite enforcement division told us 
that although after-action reports are still outlined as requirements 
in OI's training curriculum (dated April 2007) and in the OI field 
operational manual, ICE has eliminated this requirement. According to 
OI headquarters officials, prior to the reporting requirement change, 
after-action reports had only been prepared for one worksite 
enforcement operation, which was conducted in 2006, since ICE was 
created. The senior headquarters official told us that, in lieu of 
after action reports, OI intends to collect information on lessons 
learned as part of its worksite enforcement guidebook. Our review of 
the guidebook provided to us by ICE showed that the guidebook did not 
yet reflect lessons learned. 

The scale and complexity of recent ICE worksite operations, such as an 
operation in Massachusetts involving difficulties coordinating and 
communicating with social service agencies, state government, and local 
law enforcement on issues of operational plans, detention space, access 
to detainees, and information about aliens who were apprehended, 
highlight the need for ICE to be able to learn from past experiences, 
thereby providing ICE officers with a richer knowledge base to inform 
their decision making under difficult circumstances. Moreover, since 
ICE has experienced a more than six-fold increase (between fiscal year 
2003 and the third quarter of fiscal year 2007) in the number of new 
officers participating in worksite enforcement operations, more 
officers are making decisions and exercising discretion in these 
complex environments. Having a mechanism that provides ICE with 
information regarding its enforcement operations across all field 
offices would help identify areas needing corrective action regarding 
officer decision making. For example, having comprehensive information 
on factors considered by officers and actions taken by them (e.g., 
scheduling an appointment for later processing, or mailing an NTA) to 
address aliens with humanitarian issues could lead to revised policies 
and procedures. In addition, such a mechanism could help ICE protect 
its credibility and integrity against allegations of alien mistreatment 
by having readily available information to ensure that officer decision 
making complies with established policies and procedures. Without a 
mechanism to catalog and collect information--agencywide--on the 
exercise of discretion, ICE managers cannot analyze trends to provide 
additional assurance that officer decision making complies with 
established ICE policies and operational objectives, nor is ICE 
positioned to refine operational approaches based on a review of best 
practices across field offices. 

ICE relies on two databases to document officers' decisions regarding 
alien apprehensions: (1) the Enforcement Case Tracking System 
(ENFORCE), which is primarily used to collect alien biographical 
information and removal option employed, such as voluntary departure or 
an NTA, and (2) the Deportable Alien Control System (DACS), which is 
used to track the location of detained aliens, as well as the status of 
aliens' immigration court hearings. However, headquarters officials 
told us that the details of discretionary decisions (e.g., factors 
considered in deciding whether to apprehend an alien or detain an 
alien, based on humanitarian reasons) are not recorded in ENFORCE and 
DACS. Officials explained that officers may record information 
explaining their decisions in each of these systems' narrative 
sections. However, according to officials, inputting this information 
is not a requirement, and information recorded by officers in the 
narrative sections of these databases is not analyzed by field managers 
or headquarters officials. 

Headquarters officials responsible for overseeing ENFORCE and DACS told 
us that ICE plans to update these systems to provide other 
capabilities. A headquarters official responsible for overseeing 
ENFORCE told us that ICE plans to integrate aspects of ENFORCE with 
another system--the Treasury Enforcement Communications System (TECS)-
-used by officers to track criminal investigations. According to this 
official, the proposed changes will allow officers to more easily 
access information pertaining to apprehended aliens and associated 
criminal investigations. In addition, a headquarters official 
responsible for overseeing the DACS system told us that ICE is piloting 
a program to merge DACS with ENFORCE, with the goal of creating one 
case management system for collecting information on alien 
apprehensions and for tracking the progress of alien removal 
proceedings. However, it is unclear whether these plans and the 
resulting systems would provide information ICE managers need to 
monitor and analyze officer decision making across all field offices. 

The DHS Office of Inspector General (OIG) has recognized the need to 
upgrade ICE data systems so that management has reliable data to make 
programmatic decisions and assess performance with regard to detention 
and removal programs, including identifying trends associated with 
underlying decisions made during the alien removal process. In April 
2006, the OIG reported that DACS lacks the ability to readily provide 
DRO management with the data analysis capabilities to manage the 
detention and removal program in an efficient and effective manner 
because (1) the information stored in DACS was not always accurate or 
up to date and (2) DRO could not readily query DACS to obtain 
statistical reports on detentions and removals.[Footnote 26] The OIG 
stated that the lack of reliable program analysis capabilities could 
detrimentally affect DRO's ability to identify emerging trends and 
identify resource needs. According to the OIG, this data system should, 
at a minimum, be able to provide quality immigration-related data on 
various factors including, among other things, the rationale underlying 
DRO's decision to release an alien from detention or not to detain 
individual aliens. OIG recommended that ICE expedite efforts to develop 
and implement a system capable of meeting data collection and analysis 
needs relating to detention and removal, including a plan showing 
milestone dates, funding requirements, and progress toward completing 
the project. DHS and ICE concurred with the OIG's recommendation and 
said that it would prepare a project plan for developing and deploying 
the system in an expedited manner. Although DHS and ICE said that the 
new system is to allow users to capture, search, and review information 
in specific areas, including information on detention and removal case 
details, the response was not specific about whether it would contain 
information on the rationale for making these decisions. Having 
information on officers' exercise of discretion, including their 
rationale for making decisions, would provide ICE managers a basis for 
identifying potential problems, analyzing trends, and compiling best 
practices. 

ICE headquarters officials told us that collecting and managing data 
that detail decisions made by officers could be costly. However, ICE 
has not evaluated the costs or alternatives for creating a mechanism 
capable of providing ICE with usable information that it can analyze to 
identify trends in the exercise of discretion. For example, ICE has not 
considered the costs and benefits of such a mechanism in connection 
with planned or ongoing information system updates. Until ICE assesses 
costs and alternatives for collecting these data, it will not be in a 
good position to select and implement an approach that will provide ICE 
assurance that it can identify any best practices that should be 
reinforced or areas that might require corrective actions--by, for 
example, modifying policies, procedures, or training. Given that 75 
field offices are involved in the alien apprehension and removal 
process and that oversight of these offices lies with three ICE units, 
a comprehensive mechanism for reviewing officers' decision making could 
provide ICE with meaningful information to promote the appropriate use 
of discretion, identify best practices, and analyze any significant 
differences across field offices in order to take appropriate action. 

Conclusions: 

Appropriate exercise of discretion during the alien removal process is 
an essential part of ICE's law enforcement efforts as it conducts 
operations in complex environments and with finite resources to 
identify, locate, and remove many of the estimated 12 million aliens 
subject to removal from the United States. Internal controls, like 
training, guidance, and monitoring that are designed to help ICE ensure 
that its officers are well equipped to consistently make decisions that 
support its operational objectives, are crucial for ICE to help provide 
assurance that its officers exercise discretion in a manner that 
protects the agency's integrity, advances its mission, and provides the 
greatest value to the nation. Although ICE has taken steps in the area 
of training to develop and retain officer skills, ICE's guidance does 
not comprehensively address key aspects of the alien apprehension and 
removal process, such as dealing with humanitarian issues and aliens 
who are not investigation targets. In light of the increased number of 
circumstances that might call for the exercise of discretion in ICE's 
expanded enforcement efforts, comprehensive guidance--including factors 
that should be considered when officers make apprehension, charging, 
and detention determinations for aliens with humanitarian issues--to 
better support officers' decision making to provide ICE with enhanced 
assurance that discretion is exercised appropriately. Without 
established time frames for updating guidance, ICE lacks a means to 
track progress and ensure accountability for accomplishing the updates. 
Moreover, developing a mechanism for consistently disseminating legal 
information would help to ensure that officers have the most recent 
information on legal developments that may affect the decisions they 
make. Finally, collecting information on officers' exercise of 
discretion could provide ICE with enhanced assurance that officers and 
supervisors across field offices are making decisions that reflect the 
agency's operational objectives regarding alien apprehensions and 
removals and could also help managers identify best practices or areas 
that may require management action. Although ICE officials have noted 
that collecting and managing data about the exercise of discretion 
could be costly, ICE has not evaluated the costs of and alternatives 
for collecting such information. For instance, as ICE updates the 
systems it uses to manage other operational data, it could consider the 
costs and benefits of integrating this data collection function as part 
of other planned system redesigns. However, without an assessment of 
the costs and alternatives for collecting data on officer decision 
making, whether in association with planned system updates or not, ICE 
is not in the best position to select and implement an approach that 
provides ICE assurance that it can identify best practices to support 
decision making capacity or, more importantly, recurrent or systematic 
issues that could jeopardize its mission. 

Recommendations for Executive Action: 

To enhance ICE's ability to inform and monitor its officers' use of 
discretion in alien apprehensions and removals, we recommend the 
Secretary of Homeland Security direct the Assistant Secretary of ICE to 
take the following three actions: 

* develop time frames for updating existing policies, guidelines, and 
procedures for alien apprehension and removals and include in the 
updates factors that should be considered when officers make 
apprehension, charging, and detention determinations for aliens with 
humanitarian issues; 

* develop a mechanism to help ensure that officers are consistently 
provided with updates regarding legal developments necessary for making 
alien apprehension and removal decisions; 

* evaluate the costs and alternatives of developing a reporting 
mechanism by which ICE senior managers can analyze trends in the use of 
discretion to help identify areas that may require management actions-
-such as changes to guidance, procedures, and training. 

Agency Comments and Our Evaluation: 

We requested comments on a draft of this report from the Secretary of 
Homeland Security. In an October 4, 2007 letter, DHS agreed with our 
three recommendations and discussed the actions ICE plans to take to 
address them, which are summarized below and included in their entirety 
in appendix II. 

With regard to our recommendation that ICE develop time frames for 
updating existing policies, including factors that should be considered 
when making apprehension, charging, and detention decisions, DHS said 
that ICE would reevaluate and republish all existing policies, 
guidelines, and procedures pertaining to the exercise of discretion 
during calendar year 2008. With regard to our recommendation that ICE 
evaluate the costs and alternatives of developing a mechanism by which 
to analyze trends in the use of discretion, DHS said that ICE 
anticipates initiating this evaluation by December 1, 2007. 

With regard to our recommendation to develop a mechanism to help ensure 
that officers are consistently provided with updates regarding legal 
developments, DHS explained that ICE believes that policies are in 
place to address the needs of the operational components for up to date 
legal guidance, and that officers rely primarily on local Chief Counsel 
Offices for information on legal developments. DHS said that this 
localized approach reflects the fact that significant developments in 
case law often result from decisions of the 12 United States Courts of 
Appeal and that such decisions are often inconsistent and only have 
application within the geographic boundaries where they arise. 
Nonetheless, DHS commented that ICE recognizes that consistency in the 
dissemination of legal updates is of great importance to agents and 
officers and said that ICE will look to develop best practices to 
ensure the latest legal updates are disseminated to agents and officers 
through each Chief Counsel's office. We believe ICE identification and 
implementation of best practices would be important in helping ensure 
that updates on legal developments are consistently provided to 
officers. 

We are sending copies of this report to selected congressional 
committees, the Secretary of Homeland Security, the Assistant Secretary 
of U.S. Immigration and Customs Enforcement, the Director of the Office 
of Management and Budget, and other interested parties. We will also 
make copies available to others on request. In addition, the report 
will be available on GAO's Web site at [hyperlink, http://www.gao.gov]. 

If you or your staff have any questions about this report or wish to 
discuss them matter further, please contact me at (202) 512-8777 or 
[email protected]. Contact points for our Offices of Congressional 
Relations and Public Affairs may be found on the last page of this 
report. Major contributors are listed in appendix III. 

Signed by: 

Richard M. Stana: 
Director, Homeland Security and Justice Issues: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

This review examined how Immigration and Customs Enforcement (ICE) 
ensures that discretion is used in the most fair, reasoned, and 
efficient manner. Along these lines, we examined whether ICE has 
designed internal controls to guide and monitor officers' exercise of 
discretion when making alien apprehension and removal decisions, 
consistent with internal control standards for the federal 
government.[Footnote 27] Specifically, this review addresses the 
following three questions: 

1. When and how do ICE officers and attorneys exercise discretion 
during the alien apprehension and removal process? 

2. What internal controls has ICE designed to guide officer decision 
making to enhance its assurance that the exercise of discretion 
supports its operational objectives? 

3. What internal controls has ICE designed to oversee and monitor 
officer decision making during the alien apprehension and removal 
process to enhance ICE's assurance that the exercise of discretion 
supports its operational objectives? 

To address these objectives, we obtained and analyzed information at 
ICE's Office of Investigations (OI), Office of Detention and Removal 
Operations (DRO), and the Office of the Principal Legal Advisor (OPLA) 
within the Department of Homeland Security (DHS) in Washington, D.C. We 
also carried out work at 14 ICE field offices--seven OI and seven DRO 
field offices--located in seven cities throughout the United States: 
Chicago, Detroit, Los Angeles, New York, Philadelphia, Phoenix, and San 
Diego and seven ICE Chief Counsel Offices (which serve as OPLA's field 
offices) at these same locations. We selected these locations 
considering field office size, ICE data on alien apprehensions, and 
geographic dispersion. Regarding alien apprehensions, about 40 percent 
of all ICE Office of Investigations apprehensions during fiscal year 
2006 were made by the seven OI offices selected for our review. As we 
did not select a probability sample of field offices or Chief Counsels' 
offices to review, the results of our work at these locations cannot be 
projected to field offices nationwide. 

To identify when and how officers and attorneys exercise discretion 
during the alien apprehension and removal process, we reviewed relevant 
laws and regulations as well as applicable policies, memorandums, 
operational manuals, and training materials developed by OI, DRO, and 
OPLA headquarters offices. We also spoke with headquarters officials in 
the OI, DRO, and OPLA operational divisions regarding the exercise of 
discretion in the alien apprehension and removal process. At each of 
the field locations we visited, we collected and reviewed available 
locally developed field guidance, memorandums, and training materials 
applicable to the exercise of discretion during the apprehension and 
removal process. We also conducted small group interviews with 
officers, supervisors, and managers at the 14 OI and DRO field offices 
we selected as part of our nonprobability sample to determine when and 
how officers at those locations exercise discretion, and when and how 
officers are expected to exercise discretion, during the alien 
apprehension and removal process. In addition, we conducted small group 
interviews with attorneys, supervisors, and managers at the 7 Chief 
Counsel offices we visited to determine when and how attorneys exercise 
discretion, and when and how they are expected to exercise discretion, 
once formal removal proceedings have been initiated by OI and DRO 
officers.[Footnote 28] As we did not select probability samples of ICE 
officers and attorneys, supervisors, and managers to interview at the 
field offices we selected, the results of these interviews may not 
represent the views of ICE officers and attorneys and their supervisors 
and managers nationwide. 

To address internal controls ICE has designed to guide officer decision 
making, we reviewed field operational manuals, policy memorandums, and 
training materials developed by OI, DRO, and OPLA headquarters offices. 
We also requested locally developed written guidance and policies and 
procedures regarding alien apprehension and removal procedures from all 
DRO, OI and Chief Counsel field offices. We received and reviewed 
locally developed guidance from 13 of OI's 26 field offices and 12 of 
Chief Counsel's 26 field offices. The purpose of this review was to 
identify the range of policies and guidance developed by field units 
that we did not capture as part of our nonprobability sample of ICE 
field offices. We did not receive locally developed guidance from DRO's 
23 field offices, as DRO headquarters officials told us that DRO field 
offices do not rely on locally developed guidance and instead rely on 
national policies and memorandums. As part of our work at the ICE field 
offices we visited, we also discussed and identified guidance and 
training provided to officers and attorneys with regard to the guidance 
and information available to them when exercising discretion during the 
apprehension and removal process, including guidance about nontargeted 
aliens, humanitarian issues, and updates on legal developments. We then 
compared the national and local guidance, memorandums, and training 
materials in place with internal control standards to determine whether 
these controls were consistent with the standards.[Footnote 29] In 
addition, we met with headquarters officials responsible for the 
development of policy and training of field unit operations for OI and 
DRO and we interviewed OPLA officials responsible for developing policy 
and training for Chief Counsel Offices to discern their role in 
developing and providing guidance and information to ICE officers, 
attorneys, supervisors, and managers involved in the alien apprehension 
and removal process. 

To address what internal controls ICE has designed to oversee and 
monitor officer decision making during the alien apprehension and 
removal process, we reviewed relevant laws, regulations, and field 
operational manuals. We also interviewed OI, DRO and OPLA headquarters 
officials, field officers, and field attorneys to identify the types of 
oversight that are in place. We examined what controls were in place to 
provide assurance that removal decisions are consistent with 
established policies, procedures, and guidelines across field offices, 
and examined whether these controls were designed to be consistent with 
the internal control standards. We did not test ICE controls in place 
as part of our review. We also interviewed headquarters officials 
responsible for overseeing ICE's enforcement operations to examine 
controls in place to monitor enforcement activities. We met with ICE 
headquarters officials responsible for overseeing ICE databases 
containing information pertinent to alien apprehension and removal 
outcomes, and we inquired about information collected in these 
databases regarding officer decision making, including cases involving 
humanitarian issues and cases involving aliens who are not targets of 
ICE investigations. We also interviewed ICE officers, supervisors, and 
management personnel at the ICE field offices we visited to identify 
the types of supervisory reviews and approvals required for decisions 
made by ICE officers and attorneys and the documentation to be reviewed 
and approved by supervisors in regard to these decisions. We reviewed 
data on alien apprehensions for worksite enforcement operations, for 
fiscal year 2002 through fiscal year 2007, to identify trends in ICE's 
expanded enforcement efforts. We also reviewed data on alien 
apprehensions resulting from fugitive operations. To determine the 
reliability of the data, we interviewed headquarters officials 
responsible for overseeing and verifying the data, reviewed existing 
documentation regarding the data, and interviewed headquarters 
officials responsible for tracking statistics pertaining to the data. 

We conducted our work between August 2006 and September 2007 in 
accordance with generally accepted government auditing standards. 

[End of section] 

Appendix II: Comments from the Department of Homeland Security: 

U.S. Department of Homeland Security: 
Washington, DC 20525: 
[hyperlink, http:///www.dhs.gov]: 

October 4, 2007: 

Mr. Richard M. Stana: 
Director, Homeland Security and Justice: 
U.S. Government Accountability Office: 
Washington, DC 20548: 

Dear Mr. Stana: 

Thank you for the opportunity to review and comment on the report 
titled "Immigration Enforcement: ICE Could Improve Controls to Help 
Guide Alien Removal Decision Making," GAO-08-67SU. 

The following is our response to the recommendations. 

Recommendation 1: Develop timeframes for updating existing policies, 
guidelines, and procedures for alien apprehension and removals and 
include in the updates factors that should be considered when officers 
make apprehensive, charging, and detention determinations for aliens 
with humanitarian issues. 

Response: Concur. During calendar year 2008, ICE's Office of Detention 
and Removal Operations (DRO) will reevaluate and republish all existing 
policies, guidelines, and procedures pertaining to discretion. 

Recommendation 2: Develop a mechanism to help ensure that officers are 
consistently provided with updates regarding legal developments 
necessary for making alien apprehension and removal decisions. 

Response: Concur: ICE believes that policies are currently in place to 
address the needs of the operational components for up-to-date legal 
guidance. As the draft report recognizes, the primary means by which 
officers and agents are advised of legal developments is via the local 
Offices of the Chief Counsel. Each Chief Counsel and their staff 
monitor developments in the law, and use their experience and 
professional judgment to decide which of those developments merit 
dissemination to the officers and agents within their areas of 
responsibility. This localized process reflects the fact that 
significant developments in case law often result from decisions of the 
twelve United States Courts of Appeal. These decisions generally have 
no application outside the geographic boundaries of the circuit in 
which they arise. In addition, various circuit courts often decide the 
same legal issue in differing and even contradictory ways. By relying 
primarily upon the local chief counsel to analyze and disseminate new 
developments in the law, ICE benefits from the professional experience 
of its most senior field attorneys in offices throughout the country. 

ICE recognizes the consistency in the dissemination of legal updates is 
of great importance to agents and officers. To that end, ICE will look 
to develop best practices to ensure the latest legal updates are 
disseminated to agents and officers through each Chief Counsel's 
Office. 

Recommendation 3: Evaluate the cost and alternatives of developing a 
reporting mechanism by which ICE senior managers can analyze trends in 
the use of discretion to help identify areas that may require 
management actions-such as changes to guidance, procedures, and 
training. 

Response: Concur. ICE anticipates initiating this evaluation by 
December 1, 2007. 

We thank you again for the opportunity to review the draft report and 
provide comments. 

Sincerely, 

Signed by: 

Steven J. Pecinovsky: 
Director: 
Departmental GAO/OIG Liaison Office: 

[End of section] 

Appendix III: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Richard M. Stana, (202) 512-8777: 

Staff Acknowledgments: 

In addition to the above, John F. Mortin, Assistant Director; Teresa 
Abruzzo; Joel Aldape; Frances Cook; Katherine Davis; Kathryn Godfrey; 
Wilfred Holloway; and Ryan Vaughan made key contributions to this 
report. 

[End of section] 

Footnotes: 

[1] ch. 477, 66 Stat. 163 (1952) (codified as amended in scattered 
sections of 8 U.S.C.) 

[2] Aliens fall into two categories: (1) nonimmigrant aliens who enter 
the United States for leisure or temporary work and (2) immigrant 
aliens who may be able to obtain lawful permanent residence in the 
United States. 

[3] In addition, DRO has a Criminal Alien Program, which is designed to 
identify removable foreign nationals currently serving sentences in 
federal, state, or local prisons--as well as individuals not in custody 
who are on probation or parole--with the goal of removing them from the 
country at the end of their sentence, rather than releasing them back 
into the U.S. population where they might commit further crimes. 

[4] Aliens who agree to voluntary departure can be legally admitted to 
the United States in the future without penalty. The authority for 
voluntary departure is outlined in section 240B(a) of the Immigration 
and Nationality Act (INA) (8 U.S.C. ï¿½ 1229c(a)) and its implementing 
regulations (8 C.F.R. ï¿½ 240.25). OI and DRO field operational manuals 
also include guidance on voluntary departure and ICE officers told us 
that they can grant voluntary departure. We noted that ICE manuals and 
field officers use the terms "voluntary departure" and "voluntary 
return" interchangeably. In this report, we use the term "voluntary 
departure," rather than "voluntary return" when discussing this removal 
option. 

[5] GAO, Standards for Internal Control in the Federal Government, GAO/ 
AIMD-00-21.3.1 (Washington, D.C.: November 1999). Internal control is 
an integral component of an organization's management that provides 
reasonable assurance that the following objectives are being achieved: 
effectiveness and efficiency of operations, reliability of financial 
reporting, and compliance with applicable laws and regulations. 

[6] Federal regulations do not authorize ICE attorneys to initiate 
formal removal proceedings (8 C.F.R ï¿½ 239.1). 

[7] GAO/AIMD-00-21.3.1. 

[8] These policies refer to mandatory restrictions outlined in the INA 
and a Department of Homeland Security memorandum. 

[9] These mandatory detention requirements are outlined in the INA and 
in an October 2004 Department of Homeland Security memorandum on 
detention priorities. 

[10] These policies and guidelines are outlined in the DRO field 
operational manual and the INA and implementing regulations. 

[11] GAO/AIMD-00-21.3.1. 

[12] GAO/AIMD-00-21.3.1. 

[13] Supervisory special agents and supervisory detention and 
deportation officers are granted the authority to issue and cancel NTAs 
under federal regulations. 

[14] Pew Hispanic Center, The Size and Characteristics of the 
Unauthorized Migrant Population in the U.S. (Washington D.C.) March 7, 
2006. 

[15] Requirements for detaining aliens are outlined in the INA and DHS 
memorandums. For example, the INA stipulates that aggravated felons, 
aliens who are threats to national security, and categories of fugitive 
aliens must be detained by ICE officers if apprehended. In limited 
circumstances, such as when necessary to protect aliens who are 
cooperating with a major criminal investigation, the INA authorizes the 
release from custody of certain criminal aliens who do not pose a 
threat to public safety and are likely to appear for proceedings. 

[16] The INA prohibits officers from granting voluntary departure to 
aggravated felons and aliens engaged or likely to engage in terrorist 
activities. 

[17] Examples of mandated detention cases include aliens who are 
aggravated felons and terrorists. 

[18] GAO/AIMD-00-21.3.1. 

[19] Examples of severe medical illnesses listed in memo include kidney 
failure, cancer, HIV/AIDS, or significant pregnancy complications. 

[20] The INA mandates detention for certain categories of aliens, such 
as most criminal aliens. 

[21] In August 2007, a DRO official also told us that ICE operational 
plans include guidance on processing juveniles encountered during 
fugitive operations. According to this official, the guidance is 
designed to help officers determine whether juveniles should be placed 
with families or in the custody of child care agencies in the 
jurisdiction where the operation occurred. The official did not provide 
copies of operational plans containing this guidance and the plans 
provided to us before August 2007 did not include guidance on 
processing juveniles encountered during fugitive operations. 

[22] In addition, ICE supervisors are authorized to issue NTAs and 
grant voluntary departure under federal regulations: 8 CFR ï¿½ 239.1 
(NTAs) and 8 CFR ï¿½ 240.25 (voluntary departure). 

[23] The Office of Professional Responsibility, among other things, 
inspects and reviews ICE offices, operations, and processes so as to 
provide executive management with independent reviews of the agency's 
organizational health. 

[24] GAO/AIMD-00-21.3.1. 

[25] According to OI's field operations manual and training materials, 
after-action reports must be completed within 1 business day of an 
operation. 

[26] DHS, Office of Inspector General, Office of Audits, Detention and 
Removal of Illegal Aliens, OIG-06-33 (Washington, D.C.: April 2006). 

[27] GAO, Standards for Internal Control in the Federal Government, 
GAO/AIMD-00-21.3.1 (Washington, D.C.: November 1999). We used the 
criteria in GAO's Standards for Internal Control in the Federal 
Government, GAO/AIMD 00-21.3.1, dated November 1999. These standards, 
issued pursuant to the requirements of the Federal Managers' Financial 
Integrity Act of 1982 (FMFIA), provide the overall framework for 
establishing and maintaining internal control in the federal 
government. Also pursuant to FMFIA, the Office of Management and Budget 
issued Circular A-123, revised December 21, 2004, to provide the 
specific requirements for assessing the reporting on internal controls. 
Internal control standards and the definition of internal control in 
Circular A-123 are based on the GAO Standards for Internal Control in 
the Federal Government. 

[28] Federal regulations do not authorize ICE attorneys to initiate 
formal removal proceedings (8 C.F.R ï¿½ 239.1). However, ICE attorneys 
can advise officers, supervisors, and managers when they apprehend 
aliens and initiate removal proceedings, and these attorneys have the 
authority to recommend that ICE supervisors cancel a notice to appear 
(NTA), or if the NTA has been filed with immigration court, ask the 
court to terminate removal proceedings. 

[29] GAO/AIMD-00-21.3.1. 

GAO's Mission: 

The Government Accountability Office, the audit, evaluation, and 
investigative arm of Congress, exists to support Congress in meeting 
its constitutional responsibilities and to help improve the performance 
and accountability of the federal government for the American people. 
GAO examines the use of public funds; evaluates federal programs and 
policies; and provides analyses, recommendations, and other assistance 
to help Congress make informed oversight, policy, and funding 
decisions. GAO's commitment to good government is reflected in its core 
values of accountability, integrity, and reliability. 

Obtaining Copies of GAO Reports and Testimony: 

The fastest and easiest way to obtain copies of GAO documents at no 
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each 
weekday, GAO posts newly released reports, testimony, and 
correspondence on its Web site. To have GAO e-mail you a list of newly 
posted products every afternoon, go to [hyperlink, http://www.gao.gov] 
and select "E-mail Updates." 

Order by Mail or Phone: 

The first copy of each printed report is free. Additional copies are $2 
each. A check or money order should be made out to the Superintendent 
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or 
more copies mailed to a single address are discounted 25 percent. 
Orders should be sent to: 

U.S. Government Accountability Office: 
441 G Street NW, Room LM: 
Washington, DC 20548: 

To order by Phone: 
Voice: (202) 512-6000: 
TDD: (202) 512-2537: 
Fax: (202) 512-6061: 

To Report Fraud, Waste, and Abuse in Federal Programs: 

Contact: 

Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]: 
E-mail: [email protected]: 
Automated answering system: (800) 424-5454 or (202) 512-7470: 

Congressional Relations: 

Gloria Jarmon, Managing Director, [email protected]: 
(202) 512-4400: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7125: 
Washington, DC 20548: 

Public Affairs: 

Susan Becker, Acting Manager, [email protected]: 
(202) 512-4800: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7149: 
Washington, DC 20548: 

*** End of document. ***