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Chapter 7

Deportation of Immigrants Finding 7.1: The right to counsel is not provided to suspected immigration law violators at all crucial stages of the deportation process.

Notwithstanding the consequences of the penalty of deportation, aliens subject to deportation hearings receive less due process protection than defendants in criminal proceedings. Defendants in criminal cases receive substantial due process protection because of the punishment or deprivation of liberty that can occur upon conviction. Aliens subject to deportation hearings may similarly suffer from the severe consequences of deportation, which means banishment from the United States and which “may result also in loss of both property and life; or of all that makes life worth living." But as a result of a long line of Supreme Court decisions in which deportation hearings have been classified as civil proceedings, aliens subject to those hearings have not been accorded the full measure of due process available in criminal proceedings.

Although recent Court decisions, recognizing the similarity between deportation and punishment, have strictly construed laws that provide the grounds for deportation, the courts have continued to label deportation hearings as civil proceedings rather than look at the consequences of an order of deportation in determining the sufficiency of due process for aliens subject to deportation proceedings. In some nonimmigration cases involving the right to counsel, the Supreme Court has looked beyond the civil-criminal characterization of the proceeding to accord parties greater due process.5 The consequences of deportation require a similar approach for providing due process to aliens in deportation hearings.

The courts have recognized that the assistance of counsel is one of the most important guarantees for the protection of constitutional and statutory rights of individuals. Although the Immigration and Nationality Act recognizes the right to counsel, it is expressly recognized only in exclusion and deportation proceedings.

It is unclear whether there is an absolute right to counsel between the time of the initial encounter with the INS agent and the actual hearing itself.

The right to counsel is deemed fundamental in criminal proceedings and is provided at an early stage of those proceedings. The presence of legal counsel helps prevent law enforcement officers acting under color of law from coercing or intimidating persons into making incriminating statements.

Because credible evidence indicates that INS agents obtain incriminating statements from individuals immediately after detention and apprehension, the subsequent availability of legal counsel only at the hearing itself is no more than illusory compliance with the constitutional right to counsel. Moreover, the absence of counsel during the prehearing stages of the deportation process may result in apprehendees or detainees foregoing a hearing and electing voluntary departure in some cases where facts or circumstances exist that would make them eligible to remain in the United States. But because such facts were not disclosed during an INS interrogation seeking information on their deportability, detainees may unknowingly waive statutory rights for which they are eligible under the Immigration and Nationality Act.

During the deportation process, indigent persons who have been detained or apprehended for suspected violations of immigration laws may not have the assistance of legal counsel. The Immigration and Nationality Act provides for the right to counsel, but it must be at no expense to the Government. Because some detainees appeared in deportation hearings without the assistance of counsel, the 1931 Wickersham Commission report recommended that detainees be advised of free legal services provided by charitable organizations. Almost 50 years later, the INS adopted a regulation incorporating this recommendation to that effect after litigation was instituted challenging the unavailability of counsel to indigent detainees. However, this new regulation applies only to those persons placed under formal deportation (or exclusion) proceedings, which represents only a small portion of those apprehended. Approximately 60,000 hearings were held in 1978, while 800,000 persons were given “voluntary departure" without the benefit of a hearing. Recommendation 7.1: Congress should amend the Immigration and Nationality Act to require the Immigration and Naturalization Service to notify detainees at all crucial stages of the deportation process that they have a right to legal counsel and

• Ng Fung Ho v. White, 259 U.S. 276, 284(1922). 5 In re Gault, 387 U.S. 1 (1966) (civil commitment of a juvenile); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation).

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may be entitled to free legal counsel provided by charitable and legal service organizations. Due process requires that a detainee should have the availability of the assistance of counsel not merely at the actual hearing but at the earliest possible stage of the deportation process. Finding 7.2: Current INS policies and practices in setting bail fail to adhere to acceptable standards of due process for the following reasons:

Bail is set for purposes other than to assure the appearance of the arrested alien at the subsequent hearing.

There is a lack of consistency and comparability in the setting of bond.

There are few written guidelines for measuring whether the bail recommended is appropriate.

There is a lack of sufficient documentation in case files to justify either the bond recommended or the amount of bond set at the hearing.

Few statistics are available which might indicate what are successful (and therefore appropri

ate) bond amounts in a particular case. 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:

Written guidelines to assist in the determination of appropriate release recommendations. • A requirement that a detained alien is to appear before an immigration judge or a non-INS 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 illus'trated 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.

* Ibid., p. 32.

• See INS, “A Comparison of the Bond-Setting Practices of the Immigration and Naturalization Service with that of the Criminal Courts” (Bruce D. Beaudin, consultant)(July 26, 1978), pp. 20–31.

Chapter 8

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employee should have available an adequate supply of complaint forms or immediate access to them. Finding 8.3: The current INS complaint process as set forth in its Operations Instruction does not require notification to the complainant of the receipt of his or her complaint, of the initiation of the investigative process, or of the results of the investigation. To assure the public that an agency is interested in preventing employee misconduct, a complaint process must treat complainants fairly and respond to their complaints. Courteous treatment of complainants and acknowledgement of their complaints are two necessary elements of a good complaint system. Recommendation 8.3: INS should provide more information to complainants by amending Operations Instruction 287.10 to require the following:

Each complainant, upon filing a complaint, shall be provide a copy of the appropriate Office of Professional Responsibility investigation procedures and appeal provisions. b. Each complainant shall receive written verification from the Office of Professional Responsibility that the complaint has been received and is being investigated. c. Each investigator assigned to a case must interview the complainant and any other eyewitnesses to the incident. d. Each complainant shall receive written notification of the result of the investigation into his or her complaint, and the sanction, if any, imposed on the officer involved. Finding 8.4: The INS has taken significant steps to upgrade its complaint-process procedures through the reorganization of its internal investigations unit and the implementation of a new Operations Instruction. Deficiencies, however, remain in the revised complaint process:

No requirement exists in the Operations Instruction that an investigator be notified in writing of his or her assignment, along with the facts alleged in the complaint, or that he or she receive a copy of the complaint or any supporting documentation provided by the complainant. b. The ambiguous "reasonably support” standard for determining whether a further investigation should be conducted may result in meritorious complaints being summarily closed. “Reasonably support" is not defined in the Operations Instruction nor are guidelines provided for applying this evidentiary standard.

INS Complaint Investigation Procedures Finding 8.1: Swift complaint resolution must be achieved to protect the public from misconduct by INS officers and to protect officers from unfounded allegations.

Prompt investigation of misconduct complaints is important for establishing good INS-community relations, for it enhances the integrity of INS in the enforcement and administration of the immigration laws. Although the INS has made substantial inroads into reducing its backlog of Office of Professional Responsibility cases, a significant backlog still exists. Recommendation 8.1: INS should carefully monitor and enforce the new 60-day maximum investigative time limit imposed on Office of Professional Responsibility cases. INS should notify both the complainant and the accused employee of any delay in completing the investigation where an extension of investigative time is necessary. Finding 8.2: Public awareness of the INS complaint process is important for reducing incidents of officer misconduct and for improving INS-community relations.

Although INS has taken steps to establish greater public awareness of its complaint process, segments of the public and some agency employees are not fully apprised of the exact procedure. Recommendation 8.2:

INS should take immediate action to design and implement a more comprehensive and systematic procedure to inform the public of the existence of the Office of Professional Responsibility and the process to be used in filing complaints of misconduct. At a minimum, this procedure should include:

Posting signs in all INS offices;

Creating and using easily comprehensible complaint forms, in English and in other major languages;

Making complaint forms available in all INS offices; and • Supplying complaint forms to community organizations dealing with persons who may wish to

file complaints. b. INS should take prompt action to ensure that Service employees are informed of the existence of the complaint mechanism and the proper procedure to be used in filing complaints. In addition, each INS

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The INS complaint disposition categories, as set forth in the Operations Instruction, of "sustained" and “not sustained" inadequately describe the actual disposition of complaints by the Office of Professional Responsibility. They fail to account for unfounded complaints, situations in which an accused employee is exonerated, and cases involving misconduct not based on the original complaint. Recommendation 8.4: INS should amend Operations Instruction 287.10 to include the following provisions to improve the existing complaint investigation process:

When investigators are assigned to cases, they should be notified in writing of the assignment. They should also be provided with a copy of the complaint or a written statement of the allegations involved. When investigators are assigned to handle a full investigation, they should be given a copy of the preliminary report for that case. b. A complaint should be dismissed only where a preliminary inquiry does not uncover any evidence of misconduct by an INS employee. The existing standard, which requires that the facts developed must “reasonably support" the allegation, is vague and therefore subject to inconsistent interpretations by decisionmakers. A complaint should not be dismissed after a preliminary inquiry where such inquiry does not clearly exonerate the accused employee. c. Final disposition of complaints should not be restricted to the two currently existing categories of “sustained” or “not sustained,” but should be expanded to include the five categories of “sustained,” "not sustained," "exonerated," "unfounded," and "misconduct not based on the original complaint." Such an expanded system allows the decisionmaker greater accuracy and flexibility and increases public faith in the integrity of investigations by the Office of Professional Responsibility. Appropriate evidentiary inquiries should be conducted with a view towards the evidence required for each of the five possible ultimate dispositions of complaints. Finding 8.5: There is currently no appeal process, in either the INS or the Department of Justice, for complainants whose allegations of INS officer or employee misconduct have not been sustained through investigation of the complaint by INS. Recommendation 8.5: A Board of Review, as this Commission has recommended in previous public

statements,& should be established. The members of that Board should be appointed by the Attorney General and its jurisdiction should include the review of INS misconduct complaints where the complainant files an appeal from the finding of the INS investigation. Finding 8.6: Current INS guidelines as set forth in Operations Instruction 287.10 for selection of Office of Professional Responsibility investigators are inadequate and do not specify the procedure to be followed or particular criteria to be considered in selecting investigators. Inquiries into employees' professional conduct are sensitive operations and require experienced and conscientious investigators. The selection of persons to handle such cases is an important process and should be carefully monitored to ensure that only the best officers are chosen. Recommendation 8.6: INS should amend its Operations Instruction 287.10 to include specific procedures to be followed by officers wishing to apply for such duty and to include guidelines to be applied in selecting Office of Professional Responsibility investigators. These guidelines should require consideration of such factors as:

an appropriate level of experience and skill in conducting investigations, and b. a demonstrated attitude of fairness, thoroughness, and conscientiousness on the part of the applicant. Finding 8.7: The guidelines for assignment of investigators to misconduct cases are inadequate.

The complaint process as set forth in Operations Instruction 287.10 does not require that the most experienced investigators be assigned to the most complex and serious cases of alleged misconduct and does not ensure that undue influence or an inference thereof, which may result from pastor present working relationships between the investigator and the accused employee, is avoided in the investigator selection process. Recommendation 8.7: INS should amend Operations Instruction 287.10 to include the following provisions to establish an effective and efficient system for assigning investigators to misconduct cases: a. Investigators should not be assigned to handle professional misconduct cases arising in the same region to which they are assigned. b. Investigators who are assigned to handle misconduct cases should be given formal training in

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# Arthur S. Flemming, Chairman, U.S. Commission on Civil Rights, statement, in The Federal Bureau of Investigation Charter Act of 1979:

Hearings on S. 1612 Before the Senate Committee on the Judiciary, 96th Cong., Ist Sess. (Oct. 24, 1979).

Office of Professional Responsibility procedures and techniques prior to handling such cases. c. The most experienced investigators should be given the most complex and serious cases. In determining the complexity and seriousness of a case, such factors as the type of misconduct alleged, the rank of the accused employee, the number of complainants and employees involved, and the amount of any publicity received should be considered. Finding 8.8: The small number of minority-group investigators selected and assigned by INS to handle misconduct complaint cases affects the public's perception of the fairness and impartiality of the investigation of complaints.

Community perceptions of the fairness and thoroughness with which public complaints are handled are important in establishing good community-Service relations. It is crucial that the community not perceive internal investigation procedures as a coverup in which investigating officers are more interested in clearing their comrades than in fairly investigating the complaint. Recommendation 8.8: INS should increase the number of women and minority-group officers in the

applicant pool from which Office of Professional Responsibility investigators are selected. Finding 8.9: INS misconduct complaint statistics are not complete. Statistical summaries of the receipt and disposition of complaints have not been regularly compiled and made available to employees and the public. Complete and accurate statistics on the investigation and disposition of misconduct complaints can foster a sense of professionalism and integrity among INS employees and instill confidence in the public that INS is responsive to all complaints. Recommendation 8.9: INS should compile and publish, at least annually, a statistical summary of all complaints received and their final disposition. At a minimum, these summaries should include the following categories: the citizenship of the complainant, the race or national origin and sex of the complainant, whether the complaint was filed by an INS employee or a private individual, the INS region and district in which the complaint arose, the job title of the accused INS employee, the type of complaint, and the ultimate disposition of the complaint and any sanctions imposed. Such statistical summaries should be available to all INS employees and to the public.

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