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Monday, September 26, 2022
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DHS IG Tells Lawmakers He has Serious Misgivings About Admin’s Prosecutorial Discretion

The Department of Homeland Security’s (DHS) Inspector General, John Roth, told the House Oversight and Government Reform Subcommittee on National Security and Subcommittee on Health Care, Benefits and Administrative Rules Wednesday that DHS “does not collect or use the full range of prosecutorial discretion data to help assess immigration policy, evaluate the effectiveness and results of enforcement actions, or … assess the reasonableness of the exercise of that discretion on the part of DHS personnel.”

The IG’s testimony tended to be in conflict with the Obama administration’s executive order requiring lenient “prosecutorial discretion” on the part of Immigration and Customs Enforcement (ICE) in how the agency deals with a “removable alien,” whom by definition is an individual who is not a citizen or national of the United States and may be removed for reasons such as entering the country illegally, committing crimes or representing a risk to national security or public safety, according to the IG.

“There are an estimated 11.5 million removable aliens in the United States— roughly equivalent to the population of Ohio—including people who may pose a risk to public safety or national security,” Roth told the subcommittees.

“According to ICE,” he continued, “DHS removed or returned a total of 577,295 aliens in Fiscal Year 2014. Given the sheer number of removable aliens, and the finite resources available to remove them, DHS has decided it must focus on those who pose the greatest risk. To this end, DHS has instituted various policies over time that allow the use of prosecutorial discretion in making immigration enforcement decisions.”

However, the IG told lawmakers, “DHS is not collecting and analyzing enough data and does not have a mechanism to monitor and receive feedback on the results of using prosecutorial discretion. We also reported on the inability of officers at Immigration and Customs Enforcement to access aliens’ criminal records in their country of origin.”

In addition, Roth said his office’s audit – which reviewed data DHS and its components collected and reported as of September 30, 2014, prior to the policy changes announced by the administration in November 2014 – had “not assessed the legal basis of the department’s executive immigration reforms, prior prosecutorial discretion policies or prosecutorial decisions made on individual cases.”

“In addition to our recent audit,” he told lawmakers, “other reviews in which we found that components did not have enough reliable data to make informed decisions.”

Roth reported that, “Because DHS and its components have finite resources to respond to all immigration violations or remove all persons illegally in the United States, DHS exercises prosecutorial discretion in enforcing the law.”

He explained that, “’Prosecutorial discretion’ is the authority of an agency or officer to decide whether to enforce immigration laws, and if so, to what extent. For example, ICE enforcement officers are exercising prosecutorial discretion when deciding whom to stop, question, arrest and remove from the country.”

“Since DHS’ formation in 2003, ICE has implemented various policies to focus its efforts on criminal and civil enforcement priorities. It has also issued policies for processing aliens with special circumstances, such as crime victims and witnesses, nursing mothers, and the elderly, as well as ensuring that enforcement actions are not focused on sensitive locations, such as schools and churches.”

“At the time of our audit,” Roth told the subcommittee, “ICE’s removal actions were governed by a series of policy memoranda signed by ICE Director John Morton in March and June of 2011, and it focused enforcement resources on three priorities: Priority 1: Aliens who pose a danger to national security or a risk to public safety; Priority 2: Aliens who recently violated immigration controls at the border, at ports of entry or through knowingly abusing visa programs; [and] Priority 3: Aliens who are fugitives or otherwise obstruct immigration controls.”

The IG testified that in 2012, DHS issued guidance known as Deferred Action for Childhood Arrivals (DACA), which allows the use of prosecutorial discretion to defer removal action for some aliens who came to the United States as children and meet certain other criteria, and that in November 2014 DHS also published policy memoranda to implement executive immigrationreforms which included a new, department-wide enforcement and removal policy which constituted an expansion of DACA and an extension of deferred action for parents of US citizens and lawful permanent residents.”

Although Roth noted that, “These policies were not in place during the conduct of our audit fieldwork and were not reviewed as part of our work,” his office still was able to determine that, “Despite its reliance on prosecutorial discretion to prioritize enforcement resources, ICE often does not collect prosecutorial discretion data and does not always ensure its statistics are accurate and complete.”

“For example,” the IG stated, “ICE records its use of prosecutorial discretion broadly, without distinguishing the various types of exceptions to removal, such as DACA-related exceptions.

Additionally, prosecutorial discretion statistics may be inaccurate because enforcement officers may not document every encounter with aliens it considers to be a low enforcement priority; ICE officials told us that field office personnel do not always record their use of prosecutorial discretion because it is too time consuming. ICE officials also said that they may use prosecutorial discretion at various points in the removal process, which would result in multiple records for the same person.”

Consequently, “As a result,” Roth told the subcommittee, “data to support decisions to use prosecutorial discretion on low priority aliens may not be available.”

In addition, “DHS also does not collect other prosecutorial discretion-related data that might help immigration efforts. For example, DHS would benefit from capturing information regarding aliens who are granted prosecutorial discretion and later commit a crime or pose a threat to national security and public safety.”

Roth said, “DHS needs a mechanism to evaluate the use of prosecutorial discretion,” stressing that, “As DHS moves forward and revisits immigration policies and programs, it should ensure it can support its decisions with solid data. Once the department implements a plan to consistently collect and maintain reliable prosecutorial discretion data, it should develop a mechanism to monitor and get feedback on the use of prosecutorial discretion to make sure the correct decisions are being made. Such a mechanism would help DHS accurately assess the results of policy decisions and make needed changes.”

Continuing, The IG stated that, “A feedback mechanism for the use of prosecutorial discretion could help DHS identify gaps, set goals, determine budget requirements and provide information to improve program performance. In terms of overall immigration enforcement policy, such a mechanism could help compare the results of changes to the policy to goals and objectives, identify needed improvements and develop sound future programs and policies.”

“In addition to assisting in the overall policy-making process, capturing the right information would allow [DHS] to ensure the proper and evenhanded application of the policies that do exist,” Roth said, noting that, “As it stands now, there is no mechanism by which to assess the reasonableness of an individual officer’s exercise of discretion, to compare prosecutorial discretion decisions for similarly situated aliens or to compare the use of prosecutorial discretion by various field offices.”

This data, if collected, could be used to evaluate the performance of individual officers or field offices,” the IG stated, pointing out that, “Uneven or inconsistent policy enforcement can have a negative effect on DHS’s immigration enforcement mission. For example, in February 2013 we published an audit report examining ICE’s worksite enforcement strategy, and found that headquarters did not adequately oversee the field offices to ensure that they were consistent in issuing warnings and fines, and some field offices issued significantly more warnings than fines. The directorate also negotiated fines with employers, in some cases substantially reducing the amounts.”

ICE’s “Homeland Security Investigations’ inconsistent implementation of the administrative inspection process, plus the reduction of fines, may have hindered its mission to prevent or deter employers from violating immigration laws,” the IG concluded, noting that, “because [DHS] does not collect data on, much less monitor, the use of prosecutorial discretion, we are unable to determine whether the Department is using prosecutorial discretion consistently or fairly.”

Continuing, the IG told lawmakers that, “During our audit, we identified a data access issue that may impede sound prosecutorial discretion decisions. ICE field office personnel said they are not always able to access aliens’ criminal histories in their countries of origin. As a result, aliens convicted of or wanted for a felony committed in their home country, but not convicted of a felony or significant misdemeanor in the United States may not be placed in or may inadvertently be taken out of the removal process. The information components use to make prosecutorial discretion decisions was beyond the scope of our audit; however, we encourage the department to address this potential issue and take corrective action as necessary.”

In conclusion, Roth stated, “Several of our recent reports demonstrate that DHS is hindered by a lack of data in other areas of immigration enforcement. Often, DHS cannot accurately assess program performance and make informed policy decisions because it either does not collect enough data to get a complete picture or the data it gathers is not reliable. For example: According to ICE, its Intensive Supervision Appearance Program (ISAP) is effective because, using its metrics, few program participants abscond.”

“However, ICE no longer supervises some ISAP participants throughout their immigration proceedings, so it cannot definitively determine whether aliens who once were, but no longer are, in the program, have escaped or been arrested for criminal acts. Although ICE ends many aliens’ participation in ISAP before their immigration cases are completed, it continues to measure whether aliens abscond or are arrested only while they are actually participating in the program.”

ICE concurred with the IG’s recommendation to adjust program metrics and is working on a methodology to measure these “latent effects.”

Roth further stated that, “ICE did not capture essential data, such as reasons detained aliens missed flights and the optimum seating capacity to support operational decisions related to air travel for detainees. For example, we determined that ICE did not always document whether detainees missed flights due to medical reasons or travel documentation problems. Without this information, ICE may miss opportunities to correct potential problems and improve the efficiency of its detainee air transportation program.”

According to Customs and Border Protection (CBP), Roth said, “the goal of the streamline initiative is to reduce the rate of re-entry into the US by illegal aliens by apprehending them and referring them to the Department of Justice for prosecution. CBP measures streamline’s effect on re-entry using year-to-year data to analyze re-entry trends; it does not measure an alien’s border crossing history, re-entry, or re-apprehension over multiple years.”

“In other words,” Roth stated, “an alien who attempts to cross the border at the end of a fiscal year and makes a second attempt at the beginning of the next fiscal year would not be considered a recidivist. As a result, CBP is not fully and accurately measuring streamline’s effect on deterring aliens from entering and re-entering the country illegally.”

CBP concurred with the IG’s recommendation to measure over multiple fiscal years and reported it is developing a “State of the Border Risk Methodology Strategy” to analyze a wide range of indicators to better assess and analyze its enforcement efforts.

Roth concluded, saying, DHS’s “ability to oversee and make informed decisions in other program areas has also been affected by its components’ inability to accurately record needed information. For example, we reported that CBP’s Unmanned Aircraft System program operated for 8 years without establishing performance measures needed to prove the program’s effectiveness.

Additionally, the department did not adequately manage its components’ motor vehicle fleet operations, in part because the components were reporting inaccurate and incomplete vehicle data, which the department relied on to manage the motor vehicle fleet program.”

DHS “agreed with our recommendation to improve collection, analysis and reporting of data on the use of prosecutorial discretion,” Roth stated, noting that, “DHS is planning a multi-pronged approach for assessing and accounting for its immigration enforcement efforts. We are leaving this recommendation open until we receive the department’s planned strategy to collect, analyze and report data on its use of prosecutorial discretion, as well as milestones for developing and implementing the strategy.”

“We believe such a strategy is particularly important given that over the past two fiscal years, ICE, CBP and US Customs and Immigration Services collectively received, on average, about $21 billion annually,” Roth reported.

“The department must spend this significant investment efficiently and make decisions based on the best available information,” he stated, adding because, “The department also relies on prosecutorial discretion to focus resources and has implemented a number of prosecutorial discretion policies; data analysis is essential to developing sound future immigration policies. By analyzing prosecutorial discretion data, the department could potentially strengthen its ability to remove aliens who pose a threat to national security and public safety. Moreover, reporting all immigration enforcement actions would provide greater transparency and promote public confidence in the department’s immigration enforcement mission.”

 

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The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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