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entitled 'Immigration Enforcement: Better Data and Controls Are Needed 
to Assure Consistency with the Supreme Court Decision on Long-Term 
Alien Detention' which was released on June 28, 2004.

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Report to Congressional Requesters:

United States General Accounting Office:

GAO:

May 2004:

Immigration Enforcement:

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

GAO-04-434:

GAO Highlights:

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

Why GAO Did This Study:

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

What GAO Found:

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

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

Alien Removal and Custody Review Process under Zadvydas: 

[See PDF for image]

[End of figure]

What GAO Recommends:

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

ICE agreed to implement GAO’s recommendations.

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

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Richard M. Stana, 
202-512-8777, stanar@gao.gov.

[End of section]

Contents:

Letter:

Results in Brief:

Background:

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

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

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

Conclusions:

Recommendations for Executive Action:

Agency Comments and Our Evaluation:

Appendix I: Objectives, Scope, and Methodology:

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

Factors That Affect Aliens' Release from Detention after the 90-Day 
Post Order Custody Review:

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

Orders of Supervision:

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

Attorney General Guidance and Regulations:

Judicial Application of Zadvydas Standards:

Judicial Action Regarding the Expansion of the Zadvydas Holding:

Appendix IVComments from the Department of Homeland Security:

Appendix VGAO Contacts and Acknowledgments:

GAO Contacts:

Acknowledgments:

Table:

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

Figure:

Figure 1: Factors That Affect Aliens' Release from Detention:

Abbreviations:

DACS: Deportable Alien Control System:

DCI: data collection instrument:

DHS: Department of Homeland Security:

ENFORCE: Enforcement Case Tracking System:

EREM: Enforcement Case Tracking System Removal Module:

HQPDU: Headquarters Post Order Detention Unit:

ICE: U.S. Immigration and Customs Enforcement Bureau:

INS: Immigration and Naturalization Service:

United States General Accounting Office:

Washington, DC 20548:

May 27, 2004:

The Honorable Russell D. Feingold: 
Ranking Minority Member: 
Subcommittee on the Constitution, Civil Rights, and Property Rights: 
Committee on the Judiciary: 
United States Senate:

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

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

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

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

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

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

Results in Brief:

ICE does not have information that provides assurance that its custody 
reviews are timely and its custody determinations are consistent with 
the Zadvydas decision and implementing regulations. ICE has an 
outdated, difficult-to-use, inefficient case management system that 
cannot readily notify deportation officers when post order custody 
reviews are due for eligible aliens. Three of the four ICE field 
offices we visited developed their own methods for trying to ensure 
timely reviews, but none of the methods automatically identify which 
aliens are due for post order custody reviews and when these reviews 
are to be conducted. Our review of 45 case files at ICE's Washington, 
D.C., field office indicated that in 42 cases, custody reviews were 
done on time. In 3 of the 45 cases, the post order custody review was 
either late or not done at all, raising the possibility that ICE did 
not comply with the Zadvydas regulations. ICE's case management system 
does not contain information that would enable ICE to determine how 
many post order custody reviews have been made pursuant to the Zadvydas 
decision and what decisions resulted from those reviews. Therefore, ICE 
managers are not in a position to know if the custody determinations 
were consistent with the Zadvydas decision and implementing 
regulations. ICE recognizes the limitations of its current case 
management system and has been working on developing a new system that 
should help its officers readily identify aliens who are due for a post 
order custody review and enable the officers to capture information on 
the results of the review. However, these improvements are being made 
in connection with a broader redesign of its detention and removal case 
management system, and ICE officials did not know when the new system 
would incorporate the enhanced capabilities. Until ICE can (1) provide 
complete and timely information to deportation officers on when and for 
whom post order custody reviews are due and (2) identify which custody 
decisions were made pursuant to the Zadvydas decision, ICE will not be 
in the best position to assure proper implementation of the Zadvydas 
decision.

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

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

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

We provided a draft of this report to the Secretary of DHS and to the 
Assistant Secretary for ICE for their review and comment. On behalf of 
DHS, the Assistant Secretary for ICE concurred with our recommendations 
and commented on the actions ICE will take to implement them.

Background:

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

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

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

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

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

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

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

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

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

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

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

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

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

Figure 1: Factors That Affect Aliens' Release from Detention:

[See PDF for image]

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

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

[B] ICE continues working to obtain travel documents after the alien is 
released from detention.

[End of figure]

Relying on the Zadvydas decision, over 200 aliens have filed lawsuits 
requesting relief from extended detention as of January 2004.[Footnote 
13] The rulings in these Zadvydas decisions have generally been focused 
on the facts of the individual case, especially on factors relating to 
the length of time that the alien has been in custody and on the 
circumstances surrounding the destination country's response to the 
removal effort. Many of these lawsuits concern ICE's refusal to release 
the alien because ICE believes that the travel documents would be 
forthcoming in the reasonably foreseeable future. The following federal 
district court cases are two examples of rulings in which federal 
courts reached opposite conclusions on the likelihood that travel 
documents would be issued:

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

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

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

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

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

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

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

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

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

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

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

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

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

* The third case involved an alien who received a final removal order 
in October 2001 but was held in detention for an additional 21 months. 
Although the alien's case was transferred to ICE headquarters in May 
2002 (i.e., about 180 days after the removal order was issued, as 
called for in the Zadvydas regulations), ICE headquarters did not 
conduct a custody review for the alien until October 2002--a full year 
after the alien was ordered removed. The October 2002 custody review 
resulted in ICE deciding to release the alien provided that he posted a 
$2,500 bond as a condition of release. According to an ICE headquarters 
official, ICE decided to impose a bond because the alien had a violent 
criminal history and prior parole violations. According to ICE 
regulations, a bond may be required as a condition of release. Because 
the alien did not pay the bond,[Footnote 16] he continued to be held in 
detention for an additional 9 months. In July 2003, ICE removed the 
alien from the United States. According to an ICE headquarters 
official, the alien's removal took 21 months because the embassy for 
the alien's country delayed issuing travel documents until they could 
confirm his identity.

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

ICE Is Developing a New Case Management System:

Recognizing the inefficient, cumbersome nature of DACS, ICE has begun 
to develop a new automated detention and removal case management 
system. According to ICE officials, the new system, called the 
Enforcement Case Tracking System (ENFORCE) Removal Module (EREM), will 
be a Web based system that is to be implemented in four 
phases.[Footnote 17] The first phase will generally have the same 
information as DACS, except it will be Web based and add such 
enhancements as drop-down menus to aid in finding information easily. 
According to these officials, each successive phase will have 
additional capabilities. ICE plans to deploy each successive phase in 
6-month increments. The officials said that EREM will eventually be 
able to automatically identify which aliens are due for a post order 
custody review and generate key information such as when aliens should 
be notified of the review and when the review is to be done. However, 
it is unclear when EREM will incorporate these capabilities. According 
to ICE officials, ICE has encountered challenges in the development of 
EREM. For example, an ICE official said that in tests, EREM has had 
problems saving data when multiple users are entering and attempting to 
save data into the system at the same time. Additionally, the official 
said that programmers have experienced difficulty trying to incorporate 
information from a number of DACS screens into a single EREM screen. 
The implementation date for the first phase, originally scheduled for 
December 2003, was changed to October 2004. However, in April 2004, ICE 
was not satisfied with the performance of its contractor. As a result, 
an ICE official who is tasked with overseeing development of EREM told 
us that implementation dates for the first and subsequent phases have 
not been established.

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

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

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

According to the Comptroller General's standards for internal control, 
federal agencies need operating information to determine whether an 
agency is achieving its compliance requirements under various laws and 
regulations. ICE does not have readily available information to 
determine its compliance with regulations pursuant to the Zadvydas 
decision. Until such information is incorporated into and can be 
readily retrieved from ICE's case management system, the system will 
not meet internal control requirements and will continue to hamper 
ICE's ability to determine the extent to which its custody 
determinations are consistent with the Zadvydas decision.

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

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

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

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

* making alien custody determinations,

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

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

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

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

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

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

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

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

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

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

Officials at each of the 4 field offices we visited identified staffing 
shortages and heavy workload as factors that impeded deportation 
officers' ability to monitor aliens' compliance with their orders of 
supervision. All 4 field office managers and all 4 supervisory 
deportation officers who were responsible for cases of aliens released 
on orders of supervision[Footnote 20] said that they needed additional 
staff to improve the monitoring of aliens' compliance with orders of 
supervision. Although he did not provide specific numbers, 1 field 
office manager told us that deportation officers have so many cases 
that it is difficult for them to assure alien compliance with orders of 
supervision. Another manager told us that as of November 2003, the 
office had 19 deportation officers responsible for approximately 
131,000 cases of nondetained aliens, including an estimated 1,200 cases 
of aliens released on orders of supervision.[Footnote 21]

All of the 13 deportation officers we spoke with who were responsible 
for monitoring aliens' compliance with orders of supervision told us 
that they have had difficulty assuring that aliens meet the conditions 
of their release. For example, 1 deportation officer told us that the 
large size of his caseload and his numerous additional duties, such as 
jail inspections, interfered with his ability to monitor released 
aliens' compliance with their orders of supervision. Similarly, another 
deportation officer said that he is overwhelmed by his caseload and 
does not know when aliens are not complying with orders of supervision. 
He also said that even if he inadvertently learns that an alien is not 
in compliance with an order of supervision, he does not have time to 
investigate the case and take the appropriate action.

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

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

DACS data indicate the total number of aliens on orders of supervision 
increased during a 7-year period, from about 1,300 in fiscal year 1997 
to about 16,000 in fiscal year 2003.[Footnote 22] ICE officials said 
that although these figures from DACS may not be precise, they believe 
that they are a reasonable indicator of the growth in supervision 
cases. [Footnote 23] However, these estimates do not include 
deportation officers' case management duties for other nondetained 
aliens. According to ICE officials, supervision cases are a small 
percentage of the total caseload of deportation officers, but they did 
not have data indicating what that percentage was. During the same time 
period, from fiscal year 1997 through fiscal year 2003, the number of 
ICE deportation officers on board increased from 461 to 611. Although 
these figures show that ICE's supervision caseload grew at a faster 
rate than the workforce assigned to handle the caseload, ICE officials 
did not know how many deportation officers would be needed to handle 
the caseload. ICE has acknowledged that its detention and removal 
program does not have a reliable method for determining what the ratio 
of cases to deportation officers should be.[Footnote 24] ICE officials 
told us that they had not addressed this issue because they believed it 
would be costly to develop a model that would reliably estimate their 
deportation officer staffing needs for supervision cases and because of 
other priorities.

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

Having uniform guidance for ICE officers is important because some 
released aliens can pose a greater threat to society than others. For 
example, an alien with a history of violent criminal behavior can 
potentially be a greater danger to the community than a criminal alien 
without a violent past or an alien with no criminal history. Although 
the reportedly large workload of some deportation officers may make it 
difficult for them to keep track of all supervision cases assigned to 
them, ICE has not provided them with guidance on how to prioritize 
their supervision cases. As a result, there exist potential risks 
associated with such aliens being released into U.S. communities. 
Determining how to mitigate such risks would entail considering factors 
such as the significance of the risk and the likelihood or frequency of 
its occurrence. Such an approach could help ICE determine how 
deportation officers should prioritize their supervision cases when job 
demands prevent them from doing a consistent and thorough job of 
assuring alien compliance with orders of supervision.

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

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

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

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

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

Country: Laos; 
Number of detained aliens with removal order: 101; 
Number of nondetained aliens with removal order: 2,395.

Country: Laos; Criminal; 
Number of detained aliens with removal order: 96; 
Number of nondetained aliens with removal order: 1,715.

Country: Laos; Noncriminal; 
Number of detained aliens with removal order: 5; 
Number of nondetained aliens with removal order: 680.

Country: Vietnam; 
Number of detained aliens with removal order: 301; 
Number of nondetained aliens with removal order: 4,467.

Country: Vietnam; Criminal; 
Number of detained aliens with removal order: 298; 
Number of nondetained aliens with removal order: 4,243.

Country: Vietnam; Noncriminal; 
Number of detained aliens with removal order: 3; 
Number of nondetained aliens with removal order: 224. 

Source: ICE DACS data.

[End of table]

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

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

The Departments of Homeland Security and State have signed a formal 
agreement to, among other things, foster collaboration with each other 
in dealing with foreign governments that refuse to issue or delay 
issuing travel documents for their nationals. Specifically, if a 
foreign country continues not to cooperate in issuing travel documents 
for its nationals, the Secretary of Homeland Security may notify the 
Secretary of State of this situation. When notified, the Secretary of 
State is to order U.S. consular officers in the foreign country to 
discontinue issuing visas enabling citizens of those countries to come 
to the United States.[Footnote 26] ICE and State officials told us that 
this occurred on only one occasion. On September 7, 2001, the Attorney 
General requested that the Secretary of State impose sanctions on 
Guyana for refusing or unreasonably delaying issuing travel documents 
for its nationals. On October 10, 2001, State discontinued granting 
nonimmigrant visas to employees of the government of Guyana, their 
spouses, and their children. Within 2 months, the government of Guyana 
issued travel documents to 112 of the 113 Guyanese aliens who had been 
ordered removed from the United States.[Footnote 27] On December 14, 
2001, State lifted the visa sanction against Guyana.

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

ICE has successfully worked with the Department of State to develop a 
formal agreement with one foreign government for obtaining travel 
documents for its nationals. Specifically, ICE and State collaborated 
to develop a formal agreement with the government of Cambodia. A 
memorandum of understanding between the United States and Cambodia, 
signed on March 22, 2002, laid out plans for establishing and operating 
a joint commission on repatriation for certain removable aliens. An 
addendum to the agreement, signed on August 27, 2003, allows ICE to 
compensate Cambodia $300 per alien for the travel document application, 
document search, verification expenses, and in-country relocation 
travel expenses. The agreement also allows State to reimburse a 
Cambodian nongovernmental organization of the department's choice $650 
per alien for expenses related to the aliens' reintegration into 
Cambodian society. The Cambodian government and the U.S. Embassy are to 
jointly monitor the activities of the nongovernmental organization. The 
work of this commission resulted in 78 Cambodians being removed from 
the United States by January 20, 2004. Although 78 aliens were removed, 
ICE data indicated that, as of February 2004, 1,203 Cambodians with 
removal orders remained in the United States. Of these, 945 were 
criminal aliens and 258 were noncriminal aliens; 109 were in detention 
and 1,094 were not detained. Of the 109 Cambodians in detention, 41 had 
been detained for more than 180 days after the removal order. ICE and 
State officials said that they have been working informally to 
negotiate an agreement with another country.

Conclusions:

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

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

Recommendations for Executive Action:

To help assure that ICE's custody reviews are consistent with the 
Zadvydas decision and implementing regulations, and to promote the 
effective supervision of released aliens, we recommend that the 
Secretary of DHS direct the Assistant Secretary for ICE, consistent 
with the department's evolving systems integration strategy, to take 
the following three actions:

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

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

* Develop and disseminate guidance that will enable deportation 
officers to prioritize ICE's caseload of aliens on orders of 
supervision so that ICE can focus limited resources on supervising 
aliens who may be a threat to the community or who are not likely to 
comply with the conditions of their release.

Agency Comments and Our Evaluation:

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

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

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

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

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

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

[End of section]

Appendix I: Objectives, Scope, and Methodology:

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

To address the first two objectives, we interviewed officials at ICE 
headquarters and its Washington, D.C.; Los Angeles, Calif., Chicago, 
Ill., and New Orleans, La., field offices. We visited these field 
offices because they had relatively large numbers of aliens who were 
detained for longer than 180 days and they were geographically 
dispersed. We interviewed 11 ICE managers of field offices and 
detention facilities. Four of these 11 were responsible for post order 
custody reviews and supervision cases. Seven of the 11 were responsible 
only for post order custody reviews because they were detention 
facility managers. Also, we interviewed 9 supervisory deportation 
officers. Two of the 9 were responsible for post order custody reviews 
and supervision cases. Five of the 9 were responsible for post order 
custody reviews and 2 were responsible for supervision cases. We 
interviewed 28 deportation officers. Fifteen of the deportation 
officers were responsible for post order custody reviews and 13 were 
responsible for supervision cases. We also reviewed a randomly selected 
sample of 45 out of 140 case files of long-term detainees at ICE's 
Washington, D.C., field office. Because ICE officials told us that ICE 
does not maintain a database of cases that meet the Zadvydas standard, 
we asked ICE for a list of aliens with final removal orders who either 
(1) were being held in ICE detention for at least 180 days as of March 
3, 2003, when ICE developed the list of cases or (2) had been held in 
ICE detention for at least 180 days but were released from detention or 
removed from the United States between July 1, 2001, and March 3, 2003. 
This list would contain the population of cases that would most likely 
be cases eligible for post order custody reviews using the Zadvydas 
standard. Because the Deportable Alien Control System (DACS) does not 
identify whether an order of removal is final or not, the list 
consisted of aliens with orders of removal, but not necessarily final 
orders of removal. According to an ICE official, the list also did not 
include thousands of cases where the date of the order of removal was 
missing from DACS because it was not possible to compute the number of 
days in detention since the removal order in such cases. Of 5,739 cases 
that ICE generated using this criteria, 140 were listed as being 
assigned to the Washington, D.C., field office. We randomly selected 50 
cases from the 140 and asked ICE to provide us with its case files. ICE 
was unable to provide us the case files of 5 of the 50 cases that we 
requested because the files could not be located at the time of our 
file review. Using a structured data collection instrument (DCI), we 
reviewed the remaining 45 case files to determine the timeliness of 
post order custody reviews and ICE's efforts to monitor aliens' 
compliance with orders of supervision. Some of the questions on our DCI 
were intended to check the accuracy of the DACS data used to produce 
the case list, and from these questions we determined that these cases 
were correctly selected. The information obtained from the case file 
review may not be generalized to all long-term detainee cases in ICE's 
Washington, D.C., office or to ICE nationwide. We assessed whether 
ICE's case management system met the Comptroller General's standards 
for internal control for federal agencies. We also interviewed ICE's 
Office of Detention and Removals Acting Chief for Program Analysis and 
Information Technology regarding the development of ICE's new case 
management system. We reviewed available documentation regarding the 
implementation of post order custody reviews at ICE headquarters and 
its field offices. We also reviewed available documentation regarding 
how ICE monitors aliens' compliance with orders of supervision.

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

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

[End of section]

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

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

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

* The initial 90-day post order custody review decision is to be made 
by the ICE field office having jurisdiction over the alien.[Footnote 
28] At that point, if a travel document is not available to return the 
alien to his or her country, ICE may decide to continue to hold the 
alien in detention or release the alien into the community subject to 
conditions of release.[Footnote 29]

* When the field office advises the alien at the 90-day post order 
custody review that he or she will remain in custody pending removal, 
ICE is to conduct a second post order custody review once the alien has 
served a total of 180 days in detention.[Footnote 30]

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

* If the alien has filed a court action and is granted a stay of 
removal, then the "deportation clock" stops. That is, the counting of 
the days in detention is stopped while the stay of removal is in 
effect, and, based on the results of a post order custody review, ICE 
may continue to detain the alien until the court decides the alien's 
case. Once the court case is resolved, the removal period starts over 
again, with the date of the court decision counting as the first day of 
detention.[Footnote 31]

* If the alien fails or refuses to make timely application for travel 
documents necessary for his or her departure, or otherwise conspires or 
acts to prevent his or her removal, the removal period is suspended 
until the alien begins to cooperate in facilitating his or her own 
removal.[Footnote 32]

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

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

Factors That Affect Aliens' Release from Detention after the 90-Day 
Post Order Custody Review:

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

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

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

* The following categories of aliens do qualify under the Zadvydas 
regulations: aliens ordered removed from the United States who either 
initially entered legally or those who entered without inspection. If 
ICE deportation officers (1) do not expect travel documents for an 
alien to be forthcoming in the reasonably foreseeable future and (2) no 
"special circumstances" exist, then the alien is to be released from 
detention even if he or she is deemed a threat to the community or 
poses a flight risk.[Footnote 34]

* The following categories of aliens do not qualify for review under 
the Zadvydas regulations: (1) aliens who do not cooperate with ICE in 
facilitating the process of obtaining their travel documents; (2) 
arriving aliens (e.g., stopped at the border, granted temporary 
permission to enter the United States, or Mariel Cubans[Footnote 35]); 
and (3) aliens who are ordered removed by the Alien Terrorist Removal 
Court pursuant to Title 5 of the Immigration and Nationality 
Act.[Footnote 36] This group of aliens, with the exception of Mariel 
Cubans, is subject to the 90-day post order custody review criteria--
which enable ICE to continue the alien's detention if the alien is 
deemed a threat to the community or a flight risk.[Footnote 37] When 
neither of these two conditions applies, the alien should be released 
from detention on an order of supervision.

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

Orders of Supervision:

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

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

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

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

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

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

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

Any alien who has been released on an order of supervision who violates 
any of the conditions of release may be returned to custody and may be 
subject to a fine of not more than $1,000 or imprisonment for not more 
than 1 year, or both.[Footnote 38] In some cases, HQPDU can refer the 
case to the appropriate U.S. Attorney for criminal prosecution. The 
alien may then be detained for an additional 6 months in order to 
effect the alien's removal, if possible.

[End of section]

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

In Zadvydas v. Davis, the U.S. Supreme Court ruled on one aspect of the 
lawfulness of indefinite detention.[Footnote 39] The Court held that 
Section 241(a)(6) of the Immigration and Nationality Act, (8 U.S.C. 
1231(a)(6)),[Footnote 40] read in light of due process protections for 
aliens who have been admitted to the United States, generally permits 
the detention of aliens who are under a final order of removal only for 
a period reasonably necessary to bring about their removal from the 
United States. The Court held that detention of such aliens beyond the 
statutory removal period, for up to 6 months after entry of a final 
removal order, is "presumptively reasonable." After 6 months, if an 
alien can provide "good reason to believe that there is no significant 
likelihood of removal in the reasonably foreseeable future," the 
government must rebut the alien's showing to continue the detention. If 
the government cannot meet that standard, then in general, the 
government must release the alien. Finally, the Supreme Court indicated 
that there may be cases involving "special circumstances," such as 
terrorists or other especially dangerous individuals in which continued 
detention might be appropriate even if removal is unlikely in the 
reasonably foreseeable future.

Attorney General Guidance and Regulations:

In July 2001, about 3 weeks after the Supreme Court's Zadvydas 
decision, the Attorney General issued interim guidance for releasing 
detainees who were covered by Zadvydas. According to this guidance, 
arriving aliens and aliens ordered removed on an order of exclusion do 
not fall within the classes of aliens covered by the decision. For 
example, aliens seeking admission, excludable aliens, Mariel Cuban 
parolees, and other parolees would not be covered by the Supreme 
Court's analysis.[Footnote 41] ICE issued interim regulations in 
November 2001 amending the custody review process governing the 
detention of aliens subject to a final order of removal.[Footnote 42]

Judicial Application of Zadvydas Standards:

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

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

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

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

Regarding the first point, there has been litigation on the calculation 
of the 6-month period. As discussed in the Fahim case cited above, a 6-
month custodial period of time following the order of removal must have 
elapsed prior to the filing of a habeas corpus petition challenging the 
confinement under Zadvydas. In Fahim, the court concluded that the 6-
month period was tolled[Footnote 43] during the time the alien acted to 
prevent his removal. In support of this conclusion, the court cited 8 
U.S.C. 1231(a)(1)(C), which provides that the "removal period shall be 
extended…if the alien…acts to prevent the alien's removal subject to an 
order of removal."[Footnote 44]

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

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

In Kacanic v. Elwood, 2002 WL 31520362 (E.D. Pa. Nov. 8, 2002), the 
federal district court found that the alien had shown good reason to 
believe that he would not be removed in the reasonably foreseeable 
future. In reaching this conclusion, the court relied on the amount of 
time that the alien had already spent in custody, the inaction of the 
Yugoslavian Embassy, and the admissions of the government. At the time 
of the litigation, the alien had spent 1 year in detention awaiting his 
removal. The court also found that for 10 months, the foreign consulate 
had been in possession of all the information the government was 
capable of providing. The court pointed out that during this time the 
consulate never stated that the alien was likely to be granted travel 
documents. Nor had the consulate even been able to tell the government 
when a decision would be reached and never offered any reason why 
obtaining travel documents in this case took longer than normal. The 
court concluded that considering this lack of any definitive answer, or 
any indication that a definitive answer was likely soon, there was no 
legitimate reason to believe that removal would occur in the reasonably 
foreseeable future.[Footnote 45] The court also concluded that the 
government failed to present competent evidence to rebut the alien's 
showing that there was no significant likelihood that removal would 
occur in the reasonably foreseeable future. "[O]ther aliens having been 
removed to Yugoslavia in the past is not a credible indication [as the 
government argued] that this alien will be removed in the near future." 
The court concluded, "[i]t simply does not follow from the fact that 
Yugoslavia has not said "no" that they must be ready to say "yes" 
within the foreseeable future." The court noted several delays in 
government efforts to remove the alien activity and concluded that the 
lack of effort "only reinforces this Court's conclusion that removal in 
the near future does not seem likely." 2002 WL 31520362 at *3-5.

Another district court reached the opposite conclusion in Lema v. INS, 
214 F. Supp. 2d 1116 (W.D. Wash. 2002). In Lema, the court determined 
that in this particular instance, the continuing failure of a 
destination country to respond to a request for travel documents did 
not provide the court with "good reason to believe" that deportation is 
not likely in the reasonably foreseeable future. The court reasoned 
that the government and the alien, working together, should be able to 
convince the government of Ethiopia that the alien is in fact, a native 
of that country. More specifically, the court provided that the 
"[p]etitioner [the alien] has provided no reason to believe that, once 
Ethiopia's legitimate concerns are addressed, travel documents will not 
issue in the foreseeable future. Of course, overcoming the Ethiopian 
government's current misunderstanding (which has undoubtedly been 
memorialized in various reports and decision documents) may take some 
time and effort, but petitioner's [the alien's] deportation remains 
reasonably foreseeable even though it may not happen quickly." Lema, 
214 F. Supp. 2d at 1118.

Judicial Action Regarding the Expansion of the Zadvydas Holding:

There have been lawsuits petitioning courts to extend the Zadvydas 
holding to cover inadmissible aliens stopped at the border while 
attempting to enter.[Footnote 46] Recent decisions in the U. S. Courts 
of Appeals for the Ninth[Footnote 47] and Sixth Circuits[Footnote 48] 
have applied the Supreme Court's analysis in Zadvydas to these aliens.

The government's position has been that the Zadvydas holding is limited 
to those aliens who had been "admitted" or gained "entry" into the 
United States. It interprets the Supreme Court's ruling as not 
governing those aliens who are legally still at our borders as arriving 
aliens. This would include those who have been paroled into the country 
such as the Mariel Cubans, who are treated as still seeking 
admission.[Footnote 49]

The U.S. Courts of Appeals for the Third, Fifth, Seventh, Eighth, and 
Eleventh Circuits have issued decisions that agree with the 
government's interpretation of Zadvydas.[Footnote 50]

The U.S. Courts of Appeals in the Ninth and Sixth Circuits, however, 
have taken a different view. In Rosales-Garcia, the Court of Appeals 
for the Sixth Circuit acknowledged that the aliens it was dealing with 
were inadmissible, unlike the aliens in Zadvydas who were removable. 
Nonetheless, the court concluded that the holding in Zadvydas extended 
to inadmissible aliens because the Supreme Court interpretation of 
section 1231(a)(6) made no distinction among the categories of aliens 
listed. That is, the holding addresses the statute as a whole and thus 
applies to not just removable aliens--but to all the categories of 
aliens listed in section 1231(a)(6). Therefore, in Rosales-Garcia, the 
U.S. Court of Appeals for the Sixth Circuit concluded that the implicit 
reasonable time limitation applies to aliens who are inadmissible under 
section 1182.[Footnote 51]

[End of section]

Appendix IV: Comments from the Department of Homeland Security:

Office of the Assistant Secretary:

U.S. Department of Homeland Security 
425 I Street, N. W.
Washington, D.C. 20536:

U.S. Immigration and Customs Enforcement:

May 17, 2004:

Richard M. Stana:

Director, Homeland Security and Justice Issues:
U.S. General Accounting Office 
441 G Street, NW:
Washington, DC 20548:

Dear Mr. Stana:

We have received your draft report, Immigration Enforcement: Better 
Data and Controls Are Needed to Assure Consistency with the Supreme 
Court Decision on Long-Term Alien Detention GAO-04-434 (440174) and 
appreciate being provided the opportunity to comment. Below we have 
commented on each recommendation as well as on information presented in 
the report.

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

We concur and the Office of Detention and Removal Operations is 
currently developing a new case management system (ENFORCE Removals 
Module (EREM)) and the requirement for this recommendation has been 
incorporated into the functional requirements documentation of this new 
system. Development of EREM is a high priority, but performance issues 
have caused the delay of the implementation of EREM until fiscal year 
2005, thus making it a long-term solution to this problem.

ICE will continue to utilize the existing Deportable Alien Control 
System (DACS) to maintain complete, accurate, and readily available 
information on these cases. ICE has issued guidance to the field on 
specific procedures that must be followed in Zadvydas cases, as well as 
implemented a DRO headquarters review function for all Zadvydas cases. 
ICE is developing additional guidance and training to assist the field 
offices in meeting this requirement.

Recommendation 2: Develop a methodology for assessing the number of 
staff needed to manage the supervision caseload and other duties 
assigned to deportation officers, and use the results to support 
funding and staffing requests.

We concur and the Office of Detention and Removal Operations will 
develop a methodology and model to assess the number of staff necessary 
to effectively manage the alien docket, which includes aliens released 
on an order of supervision, as well as performing other duties for 
which deportation officers are responsible. The results of this 
assessment will be utilized to support funding and staffing requests.

Recommendation 3: Develop and disseminate guidance that will enable 
deportation officers to prioritize ICE's caseload of aliens on orders 
of supervision so that ICE can focus its limited resources on 
supervising aliens who are identified as a possible threat to the 
community or who are not likely to comply with the conditions of their 
release.

We concur and will review current guidance and make necessary changes 
to ensure that deportation officers are able to prioritize their 
caseload of aliens released pursuant to orders of supervision. Current 
ICE policy is to keep in custody those aliens who may pose a threat to 
the community, or pose a flight risk. However, under the Zadvydas 
decision, there are instances where ICE is required to release aliens 
who may pose a threat to the community. When this occurs, ICE seeks to 
manage and properly supervise these cases to ensure to the maximum 
extent possible the safety of U.S. communities, including placing 
additional conditions on aliens being released pursuant to the Zadvydas 
decision. ICE is also exploring the use of alternatives to detention 
(such as electronic monitoring) to determine whether they may be 
applied in this context.

Thank you again for the opportunity to respond to the draft report. If 
you have any questions, please contact Eddie L. Carlisle, Audit 
Liaison, U.S. Immigration and Customs Enforcement, at (202) 305-0132.

Sincerely,

Signed by: 

Michael J. Garcia: 
Assistant Secretary: 

[End of section]

Appendix V: GAO Contacts and Acknowledgments:

GAO Contacts:

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

Acknowledgments:

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

FOOTNOTES

[1] 533 U.S. 678 (2001).

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

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

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

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

[6] 8 C.F.R. §§ 241.13 and 241.14.

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

[8] 8 C.F.R. Part 241.

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

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

[11] 8 C.F.R. § 241.13.

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

[13] Aliens may obtain legal counsel at their own expense. 8 U.S.C. § 
1362.

[14] 2002 WL 31520362 (E.D. Pa. Nov. 8, 2002).

[15] 214 F. Supp. 2d 1116 (W.D. Wash. 2002).

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

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

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

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

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

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

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

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

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

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

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

[27] One individual had died.

[28] 8 C.F.R. § 241.4(c)(1).

[29] 8 C.F.R. § 241.4(j)(1).

[30] 8 C.F.R.§ 241.4(k)(2)(ii).

[31] 8 U.S.C. § 1231(a)(1)(B)(ii).

[32] 8 U.S.C. § 1231(a)(1)(C).

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

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

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

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

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

[38] 8 U.S.C. § 1253(b).

[38] 533 U.S. 678 (2001).

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

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

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

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

[42] "Tolled" means to suspend or stop temporarily.

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

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

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

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

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

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

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

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

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

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

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