cerning the processing of deportation cases. The reasons for those differences are:

First of all, the district director is a law enforcement officer, and as such, when he institutes proceedings against an alien, he is interested in seeing that it is carried through to a successful conclusion; otherwise he would not have instituted the proceeding in the beginning. The immigration judge, on the other hand, takes no stand either way, either for the Service or for the alien.

Secondly, the priorities arise because the district director has no responsibility for the immigration judge's activity. If the immigration judge's activity is very successful, the district director gets no credit. If it is unsuccessful, if it is very poor, he gets no blame. So on the other hand, if his investigative staff does a poor job, he gets blamed for that. If his adjudicators fall behind, he will get complaints from Members of Congress and from members of the public. 100

As a result of these different priorities, and the lack of sufficient administrative support, deportation cases are backlogged for periods ranging from 3 months to 2 years. 101 Judge Bookford concluded that a separate and independent immigration court is necessary to assure all persons of a timely and impartial hearing and to promote public recognition that the judges are, in fact, impartial.

I think it is very much advisable, not only from the standpoint of carrying out the work efficiently, but from the standpoint of a public view of the operation. We must not only be independent but we must, I think, give the appearance of independence. We must convince the aliens, the public, the members of the bar that our decisions are independent, and when we are so closely allied with and a part of the Immigration Service, it's very difficult to convince these people that we are indeed independent. . . .1

102

102 Ibid., p. 265.

103 Wickersham Commission, Report on the Enforcement of the Deportation Laws of the United States, pp. 177–79.

104 8 U.S.C. 1357(a)(2). A warrant is not required in two situations: (1) when an alien in the presence of an INS official is entering or attempting to enter the United States illegally, or (2) when an alien is believed to be in the United States in violation of law and the officer has reason to believe that the alien is likely to escape. In the absence of these two circumstances, the INS must use a warrant to make an arrest.

immigration judges. An administratively and judicially independent court would assure all persons that their rights will be adequately protected and impartially adjudicated without fear of coercion or prejudice.

Administrative Arrest Warrants

INS has been given broad powers to take into custody people charged with violating the immigration laws. Arrests can be made with or without a warrant, depending on the circumstances, but even where a warrant is required,104 it is not difficult to obtain.

The INS administrative arrest warrant procedure raises two specific problems regarding procedural safeguards. First, there is no requirement that the warrant be issued by a neutral judicial officer. The INS not only prosecutes immigration law violations, but it is also entrusted with issuing warrants. 105 Secondly, the standard upon which a warrant may be issued falls far short of the constitutional requirement of probable cause.

Although in the criminal justice system the necessity of an independent and neutral appraisal of the evidence supporting an application for a warrant has been recognized, the Immigration and Nationality Act has no similar provision. The act makes no pretense at requiring any degree of impartiality in the consideration of arrest warrants. Even the Assistant District Director for Investigations, who is responsible for the preparation of a case and the filing of charges against an alien, is one of the officials empowered to issue warrants.

Dissenting in a case involving this issue, Justice William J. Brennan compared criminal and INS administrative arrest warrants and commented on the need for greater administrative safeguards:

Here the arrest, while had on what is called a warrant, was made totally without the intervention of an independent magistrate; it was made on the authorization of one administrative official to another. And after the [person] was taken into custody, there was no obligation upon the

105 8 C.F.R. §242.2(a) (1978) provides, "the respondent may be arrested and taken into custody under the authority of a warrant of arrest. However, such a warrant may be issued by no one other than a district director, acting district director, deputy district director, assistant district director for investigations, or officers in charge of an office enumerated in §242.1(a) [listing offices] and then only whenever, in his discretion, it appears that the arrest of the respondent is necessary or desirable." This warrant may be issued at "the commencement of any proceeding...or at any time thereafter." (emphasis added)

administrative officials who arrested him to take him before any independent officer, sitting under the conditions of publicity that characterize our judicial institutions, and justify what had been done. [emphasis added]106

The lack of safeguards was made more glaring by testimony that a request for an administrative arrest warrant can be made over the telephone "if they have enough information."107 The lack of adequate provisions for evaluation of a warrant application by a neutral authority can lead to excesses.

Leon Rosen, a former immigration official who is now a private practitioner, alleged:

[U]ntil very recently, no place was immune from INS raids-homes, places of employment, public streets. My colleagues at the immigration bar and I have known of numerous instances of warrantless entries into private homes, interrogations, arrests in clear violation of the fourth amendment to the United States Constitution. The fourth amendment, incidentally, prohibits the issuance of a warrant except upon oath or affirmation. The Immigration Service doesn't even bother with that minor technicality, for, in practice, a warrant for the arrest of an alien is issued on the mere verbal request of an investigator with no procedural safeguards whatsoe

Problems created by the absence of an impartial judge in the warrant process are exacerbated by the absence of any meaningful standard to determine when a warrant should be issued. The Immigration and Nationality Act provides that an arrest warrant may be issued "whenever, in [the named officials'] discretion, it appears that the arrest of the respondent is necessary or desirable." 109 What may be deemed necessary or desirable is not defined.

Although the fourth amendment110 requires that probable cause be the basis upon which a warrant is

108 Abel v. United States, 362 U.S. 217, 251 (1960) (Brennan, J., dissenting). 107 Henry Wagner, former INS Assistant District Director for Investigations, New York District Office, testimony, New York Open Meeting Transcript, p. 146.

108 Leon Rosen, testimony, New York Open Meeting Transcript, pp. 221

22.

109 8 C.F.R. 242.2 (1978) (emphasis supplied). 110 The fourth amendment provides:

The right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [emphasis supplied]

11 Rosen Testimony, New York Open Meeting Transcript, pp. 269-70. The INS disagreed with the testimony of Mr. Rosen, a former immigration official. It stated:

issued, that standard has not been applied to issuance of INS warrants. According to Mr. Rosen:

what actually happens is, where they see fit to obtain a warrant, an investigator simply goes to his supervisor and says, "I want a warrant," and the district director signs a warrant, and nobody bothers to prepare an affidavit or read the affidavit or determine whether or not there is probable cause.111

As administered by INS, the warrant of arrest is more a piece of administrative paperwork than a barrier between an individual and abusive official action. INS warrant procedures are not in line with fourth amendment requirements, making the warrant process an empty gesture that lends a fallacious claim of legitimacy to a subsequent arrest.

Findings and Recommendations 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."112 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.

Contrary to the allegation made by one of the witnesses who testified before the Commission, that an investigator simply goes to his supervisor and says "I want a warrant," such an investigator is required to fill out an I-265, "Application for Order to Show Cause," which requires the investigator to present evidence supporting his request for a warrant. This information must be supplied before such a warrant will be issued. Warrants can be issued only by District Directors, Deputy District Directors, Assistant District Directors for Investigations, and certain Officers in Charge. 8 CFR 242.1(a). Castillo Letter.

We note that the INS did not address the two issues in the administrative arrest warrant section of this chapter: the absence of an impartial judge in the warrant process and the absence of a requirement of probable cause for the issuance of a warrant.

112 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

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. 113 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.

113 In re Gault, 387 U.S. 1 (1966) (civil commitment of a juvenile); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation).

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 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:114

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.