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INS Complaint Investigation
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.
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: a. 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:
a. 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.
C. 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
Arthur S. Flemming, Chairman, U.S. Commission on Civil Rights, statement, in The Federal Bureau of Investigation Charter Act of 1979:
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:
a. 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 past or 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
Hearings on S. 1612 Before the Senate Committee on the Judiciary, 96th Cong., 1st 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.
Additional Statement by Vice Chairman Stephen
CIVIL RIGHTS IN IMMIGRATION
Nothing is more pitiful than a nation which stands helpless and immobilized when it should meet the needs of its own citizens and lawful residents. Yet that is exactly what is happening with respect to the lack of an effective national policy concerning the illegal aliens who are coming to this country to seek employment and a better life for themselves. Calling them by the euphemistic phrase "undocumented workers" does not make their entry any less illegal nor reduce their impact on employment opportunities for our own citizens. As Secretary of Labor Ray Marshall noted on December 2, 1979:
If only half, or 2 million, of them are in jobs that would otherwise be held by U.S. workers, eliminating this displacement would bring unemployment down to 3.7%, which is below the 4% full-employment target set by the Humphrey-Hawkins Act.1
It should be clear that the illegal alien problem is not simply an Hispanic problem and is not limited to the five Southwest States; it is a national problem." If one examines the employment situation in the North-Central States, in New England, and along 'Harry Bernstein, "Illegal Aliens Cost U.S. Jobs-Marshall," an interview with Secretary of Labor F. Ray Marshall, Los Angeles Times, Dec. 2, 1979, p. I-1.
2 Very simply, the estimate of illegal aliens is uncertain except that it is at least several million. Lawrence Fuchs, Director of the Select Commission on Immigration and Refugee Policy, has claimed that there are no more than 6 million undocumented workers and that no more than 50 percent of them are Mexican. Prof. Vernon M. Briggs, Jr., of Cornell, has also estimated that "it is likely that Mexicans account for no more than half of the annual flow of illegal aliens into the country." Vernon M. Briggs, Jr., "The Impact of the Undocumented Worker on the Labor Market,” in The Problem of the Undocumented Worker (Albuquerque, N. Mex.: Latin American Institute of the University of New Mexico, n.d.), pp. 31-38, p. 33. In August 1978, the Denver Post reported a belief of the Mexican Ambassador to the United States, Hugo B. Margain, that without guest worker programs such as the so-called bracero program that there could be
the eastern seaboard, one can readily find thousands of non-Hispanic illegal aliens widely employed in both the large industries and the small businesses of those areas. As the Vice President's Task Force on Youth Employment concluded: "Estimates on the percentage of undocumented workers in the U.S. labor force range from 2 percent to as high as 10 percent."
There is no doubt that the illegal aliens who are employed in the garment firms of Los Angeles, in the restaurants of the District of Columbia, or in the automobile factories of Detroit are hard working. Often they seek not only a better life for themselves, but also for those they have left behind in their native lands-families and relatives to whom they frequently send funds. But as a matter of American national policy, citizens and lawful residents should not be left unemployed because the governments from which these illegal aliens flee are not meeting the economic needs or facing the population problems of their own people.
This Nation should be particularly concerned with the distressing working conditions in the lowas many as 10 million illegal aliens in this country. (“Our Undocumented Aliens-Part Four, A National Debate What To Do?" in Empire Magazine, the Sunday magazine of the Denver Post, Aug. 6, 1978.) Estimates of illegal aliens in the United States have ranged from 3 to 12 million. For 1975 Lesko Associates estimated 8.2 million illegal aliens, of whom 5.7 million were estimated to be Mexican. The U.S. National Commission for Manpower Policy concluded that the average illegal alien population in 1977 was probably within the range of 3 to 6 million persons. The White House, A Summary Report of The Vice President's Task Force on Youth Employment (1980), 19.
In the case of Mexico, is estimated that the return of American dollars by illegal aliens in the United States is the largest dollar earner for Mexico-ahead of the dollars gained from American tourism. Wayne A. Cornelius, "Illegal Mexican Migration to the United States: A Summary of Recent Research Findings and Policy Implications," p. 14.
skill, low-wage industries in which illegal aliens are employed and with the resultant denial of job experiences for our own citizens. It is a serious problem when entry level job experiences are denied to inner-city youth because these jobs are increasingly occupied by illegal aliens subject to the exploitation and fear created by unscrupulous employers and sometimes connived in by labor unions. Some have argued that Americans will not fill low-status, lowwage jobs and therefore illegal aliens are necessary if the work is to be done." That is simply untrue. Such "we need them and they are happy here" arguments were last heard to justify plantation slavery before the Civil War. The fact is that in each occupational category a majority of the positions are filled by American citizens. If workers are truly needed to perform specific seasonal tasks, then guest worker programs such as those utilized in various European countries might be instituted. Under such programs there could at least be a regularized procedure to assure the entry of needed workers to perform specific types of jobs (but not limited to a specific employer). Such a procedure would also ensure full payment and fringes, health clearance, and other accepted American practices too often neglected as some employers victimize the illegal alien as well as the broader public interest. It is clear that the problem of illegal immigration is a political as well as a human and a legal issue. That neither the Congress nor the President has faced these issues is tragic.
The Border Patrol has a difficult and dangerous task. It is understaffed and its members are underpaid. As one careful student of the subject has observed "...the legal immigration system of the United States has been rendered a mockery. . . There is big money and individual misery in the smuggling of illegal aliens across the American borders. Because our borders are largely unpatrolled and most illegal entrants can melt into our society, we are an attractive target, especially for those who come from Mexico where the government has failed to address the needs of its own people through either
The findings of the 1979 National Longitudinal Survey (NLS) of Youth Labor Market Experience refute this myth: "Substantial numbers of youth are willing to work at less than the minimum wage. This extensive longitudinal study found that the youth unemployment rate (38.8% for black youth and 16.6% for white youth) was 37% higher than had been shown by the Current Population Survey monthly sample." The New York Times, Feb. 29, 1980, pp. A1 and A14.
• Professor Briggs has commented that, "No U.S. worker can compete with an illegal alien when the competition depends upon who will work for the lowest pay and longest hours and accept the most arbitrary working
a sound economic or population policy. It is hoped that some of the billions of dollars now available within Mexico as a result of the development of its petroleum resources will go toward the development of labor-intensive food processing and textile industries in the northern states of that nation. Certainly the American Government has a stake in also providing appropriate assistance to encourage such a development. Increasingly unemployed American workers should not be the only form of foreign aid available to Mexico.
For those who seek to count illegal aliens to increase their political power, perhaps it would be wise to recall Mathews v. Diaz, 426 U.S. at 82, in which the Court noted that "Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens...
Residents from my own State of California certainly stand to profit from counting illegal aliens and thus gaining a few more seats in the House of Representatives. But should foreign citizens-many of whom are transient and subject to deportationbe the basis of our representative process? Is it fair to the legitimate political interests of citizens in the North and the East (where there are probably proportionally less illegal aliens than in the Southwest) not to have their votes counted effectively in the formulation of national policy through that representative process simply because some States happened to have an enhanced apportionment as a result of the substantial presence of illegal aliens?
On August 4, 1977, the Carter administration proposed a package of legislative proposals to reform our immigration laws. One of the key recommendations was the call for employer sanctions to make illegal the hiring of so-called undocumented workers. Various ethnic communities quite properly expressed concern that employers might be reluctant to hire those with a shade of skin other than white for fear that they were undocumented workers and illegal aliens. In brief, the administration left out the essential element which is key to a fair employer sanctions policy and that is what some conditions. Hence, it is self-serving for employers to hire illegal aliens and claim simultaneously that no citizen workers can be found to do the same work. In the local labor markets where illegal aliens are present, all lowincome workers are hurt. Anyone seriously concerned with the working poor of the nation must include an end to illegal immigration as part of any national program of improved economic opportunities." (emphasis supplied) Vernon M. Briggs, Jr. "The Impact of the Undocumented Worker on the Labor Market," in The Problem of the Undocumented Worker, p. 34. 7 Ibid., P. 32.