Recommendation 7.2: The INS, to provide a more uniform and equitable bond determination process, should establish a more objective bail system that includes the following:115

Written guidelines to assist in the determination of appropriate release recommendations.

A requirement that a detained alien is to appear before an an immigration judge or a nonINS magistrate for an initial bond determination and for the advisement of his or her rights.

More thorough investigations of the ties of the arrested person to the community in order to make more appropriate bail recommendations.

· The automatic entitlement of the detained alien to a redetermination of bond where he or she has been detained in excess of 48 hours.

• The maintenance of statistics and the development of programs for the monitoring of bond determinations so that future bond determinations may be more appropriately set.

Finding 7.3: The present deportation system does not provide all persons apprehended or detained by INS with the opportunity that should be provided for an expeditious or impartial hearing before deportation or removal from the United States.

A hearing is avoided by the device of "voluntary departure," although a deportation hearing could establish facts or constructions of law that provide grounds for relief from deportation. INS law enforcement officers, who are essentially prosecutorial personnel, currently offer voluntary departure to detainees with a warning of the risks of deportation hearings. This is a highly questionable practice, for the line between persuasion and intimidation is very thin, especially where an officer is acting under color of law. Voluntary departure is also a form of discretionary relief that an immigration judge can grant to the detainee after a deportation hearing on

the merits of the case. A deportation hearing would prevent the unknowing forfeiture of statutory rights, granted under the Immigration and Nationality Act, which would make some detainees eligible to remain in this country.

The right to a hearing principally means the right to a hearing before an impartial judge. The current INS deportation process has been publicly criticized for not offering at least the appearance of an impartial hearing. This criticism stems primarily from the dual functions of INS, which is charged by statute with both law enforcement and adjudicative functions. The intermingling of the adjudicative and enforcement responsibilities within INS, as illustrated by the dependence of immigration judges on INS District Directors for funds with which to operate, undermines the adjudicative process. Recommendation 7.3:

a. Congress should amend the Immigration and Nationality Act to establish a separate immigration court independent from the Immigration and Naturalization Service.

b. INS should direct its officers to refrain from counseling detainees to elect voluntary departure. Finding 7.4: INS administrative arrest warrants are not obtained upon a finding, by a neutral judicial officer, of probable cause for apprehension or detention but because an administrative officer of INS deems it desirable or necessary.

Recommendation 7.4: Congress should amend the Immigration and Nationality Act to provide that administrative arrest warrants may be issued only by a neutral judicial officer on the basis of the finding of probable cause. This amendment to the act is necessary to bring the INS administrative warrant procedure into compliance with the requirements of the fourth amendment.

Chapter 8

Few people today would disagree with the assertion that violations of constitutional rights and denials of due process can result from the improper actions of law enforcement officers. Any abridgment of the rights of an individual arising from improper or illegal actions by government employees must be investigated to ensure that they do not overstep the bounds of proper law enforcement techniques and become overzealous in their duties; this is as true for the INS as it is for other law enforcement agencies.

In 1977 the new administration of INS requested an audit of existing INS complaint investigation procedures, and the Office of Professional Responsibility' of the Department of Justice responded by having a 6-month audit done of the INS internal inspections unit. The examination found serious defects in the INS complaint process that prevented a prompt, thorough, and fair investigation of misconduct complaints filed against INS employees. In particular, the audit found:

1. Management and internal controls over internal investigations were inadequate. The Audit Staff found it difficult to identify the internal investigative responsibilities of the central, district and regional offices, respectively. There was some confusion over which offices had responsibility for investigating, for reporting, and for monitoring misconduct cases.

2. Many cases which should have been closed remained in open status. As of July 1, 1977, the central office had 202 open allegations. The

'The internal complaint investigation unit of the Immigration and Naturalization Service was renamed the Office of Professional Responsibility in December 1978 (it was previously known as the Office of Professional Integrity). Unless otherwise noted, the use of "OPR" or

Audit Staff reported that of these, "107 were over 1 year old and a number of them were 2 and 3 years old."

3. Many cases which had been reported to the FBI had not been adequately monitored by the district, regional or central office and some of them had become too old to investigate properly.

4. INS needs to adopt written policies and procedures to provide internal investigators with guidance on when and how to investigate misconduct allegations. For example, some of the officials interviewed asserted that all misconduct allegations [should] be investigated; others said that anonymous complaints should not be pursued.

5. The INS internal reporting and accounting system was found to be inadequate. Regional offices did not follow any standard procedures in reporting misconduct allegations to the central office and top management at INS was not regularly informed of allegations referred to the FBI.

6. After reviewing misconduct allegations, INS officials did not assign the most experienced investigators to handle the complex and serious cases.

INS officials were not reporting all allegations of serious misconduct to the Attorney

"Office of Professional Responsibility" in the text and footnotes of this chapter refers to the INS complaint investigation unit, not the Department of Justice complaint investigation unit. References to the DOJ Office of Professional Responsibility will be clearly indicated.

General's Office of Professional Responsibility, as required under 28 C.F.R. §0.39 et seq. (1976).2

These findings clearly indicate that before 1977 the INS procedures for investigating and eliminating employee misconduct were not efficient or effective and did not adequately protect the rights of individuals.

The new administration at INS has attempted to improve the agency's internal investigations process. In April of 1978, INS restructured its complaint investigations unit and implemented new complainthandling procedures,3 seeking better complaint monitoring through the adoption of a case-control system, whereby each complaint is recorded on a master log so that its progress can be followed.* More rapid processing of complaint cases has also been required under a new maximum time limit for investigations." Complaint investigations have been made more efficient by requiring a preliminary inquiry in each case prior to a full investigation, and all Service employees are responsible for reporting any allegations of employee misconduct of which they have knowledge. Moreover, INS has retained responsibility for keeping track of complaints referred to other agencies for investigation and for reporting all complaints to the DOJ Office of Professional Responsibility and the Attorney General. However, as testimony at the regional open meetings and the Commission's Washington hearing points out, deficiencies remain in the INS complaint process that prevent an adequate response to public complaints of officer misconduct.

U.S., Department of Justice, Office of Professional Responsibility, "1977 Annual Report to the Attorney General," pp. 9-10 (hereafter cited as DOJ 1977 Report). The DOJ Office of Professional Responsibility is responsible for overseeing the "integrity and functions" of the various internal investigations units throughout the Justice Department, one of which is the INS Office of Professional Responsibility.

⚫ Operations Instruction (hereafter cited as OI) 287.10. INS procedures for investigating complaints of misconduct by Service employees are set out definitively in OI 287.10. It should be noted that the Service's Investigator's Handbook prescribes certain investigative procedures to be used in conducting professional integrity investigations that are not included in the OI, or are possibly inconsistent with OI requirements. INS states that the Investigator's Handbook is:

only a short guide to aid in successfully conducting and competently reporting investigations. . . .The HANDBOOK is concerned with investigative operations only. It is an adjunct to, not a substitute for, the regulations, operations instructions, and other published Service material.

U.S., Department of Justice, Immigration and Naturalization Service, I & NS Investigator's Handbook (Mar. 14, 1960), Foreword.

• OI 287.10(i).

• OI 287.10(e)(1).

• Mario T. Noto, Deputy Commissioner, INS, memorandum to Michael E. Shaheen, Jr., Counsel, DOJ Office of Professional Responsibility, July 7, 1978.

'Louis A. Radelet, The Police and the Community (1973), p. 7. Witnesses at

A better response to misconduct complaints is required not only to protect the civil rights of individuals, but also to achieve or maintain the level of community cooperation necessary for effective enforcement of the laws. Without community cooperation, law enforcement agencies would be unable to prevent, investigate, or resolve many violations of law."

Thorough complaint investigation by law enforcement agencies not only fosters community cooperation by protecting community residents from officer misconduct, but also serves to shield officers from unfounded allegations. A failure to respond, or an inadequate response, to citizen complaints of officer misconduct can result in public mistrust of legal authorities and can exacerbate tensions between the community and its law enforcement agencies. Director Paul Kirby of the INS Office of Professional Responsibility has supplied statistics which indicate that United States citizens and aliens do lodge complaints against INS employees. These statistics show that of the 354 cases opened in fiscal year 1978, 70 were filed by United States citizens and 139 by aliens.10

In evaluating the INS response to community complaints, it is appropriate to compare the INS internal investigations system as administered by its Office of Professional Responsibility (OPR) with analogous procedures designed for the internal investigations units of police departments. Several studies conducted by national law enforcement organizations and advisory groups have attempted to define the minimum standards necessary to the regional open meetings testified that community cooperation is an integral part of INS enforcement efforts. The representative of a community organization in New York stated that INS uses tips and other information obtained from community residents to make apprehensions. Oscar Monegro, Dominican Alliance, testimony before the New York State Advisory Committee to the U.S. Commission on Civil Rights, open meeting, New York City, Feb. 16–17, 1978, vol. 1, p. 70 (hereafter cited as New York Open Meeting Transcript). A former INS official confirmed reports that information from citizens, as well as its own intelligence operations, provides the basis for some apprehensions by INS. Henry Wagner, former Assistant Director of Investigations, New York INS District Office, testimony, New York Open Meeting Transcript, vol. 2, pp. 140-41. INS has also instituted a program known as "Operation Cooperation" or the "Denver Project," which is discussed in chapter 5 of this report, to obtain employer cooperation in screening out and refusing to hire undocumented workers.

Mr. Kirby resigned from the Service in August 1979. He was the Director of the Office of Professional Responsibility from April 1978 until his resignation.

• The INS Office of Professional Responsibility was known as the Office of Professional Integrity until December 1978.

10 Paul Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Jan. 18, 1979. Statistics indicate that 24 complaints were received from anonymous sources, 45 from other agencies, 63 from INS employees, and 13 from "other sources."