Chapter 8 Complaint Investigation Procedures of the Immigration and Naturalization Service 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. 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 U.S., Department of Justice, Immigration and Naturalization Service, 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." Complaint Resolution A law enforcement agency must have a complaint investigation process that is swift, thorough, and fair. Undeniably, prompt responses to complaints and thorough investigations inspire public as well as employee confidence in an agency, thereby enhancing its reputation for fairness. Quick resolution of a complaint protects the public from officer misconduct, as well as innocent employees from unfounded charges of misconduct, but a delayed or incomplete investigation fails to achieve either objective adequately. Speedy complaint resolution has been recognized as essential in obtaining good community cooperation in law enforcement efforts, 14 and thus "a maximum investigative time limit for adjudication of complaints should be established and strictly enforced," unless an extension, approved by the chief executive of the agency, is justified. 15 One study notes that most agencies which have imposed investigative time limits allow 30 days to handle complaint investigations and require that, in the event of an extension, notice be given to both the complaining party and the accused officer. 16 Another study concludes that 3 months should be sufficient "National Advisory Commission on Criminal Justice Standards and Goals, "Report on Police" (1973). 12 U.S., Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, "Prescriptive Package: Improving Police/Community Relations," (1973) (hereafter cited as "Improving Police/Community Relations"). 13 Police Foundation, Police Personnel Administration (1974). "LEAA, “Improving Police/Community Relations," p. 48. 15 National Advisory Commission on Criminal Justice Standards and Goals, "Report on Police," pp. 483, 486. for resolving complaints and that, even though the officer is also being prosecuted for a criminal offense, the agency investigation should continue as rapidly as possible.17 As the audit by the Department of Justice established, INS complaint processing was far from adequate. Mario Noto, then INS Deputy Commissioner, testified that, when he took office in 1977, the internal investigations unit had a huge backlog of cases awaiting investigation. He described the investigations unit as: [A] helter-skelter operation, run by a few individuals who felt that they were accountable only to themselves and to God. The net result of it was that I inherited hundreds of cases that had been hanging on, subject to investigation for years, on some of the most flimsy of allegations which should have been clarified very soon and which, unfortunately, cast a cloud upon the individuals concerned, bringing about havoc in private lives, impeding effective and efficient operations, and, in short, the unit called the internal investigations unit had been left to its own devices and it operated on the whim, the caprices of the people that were immediately responsible for its administration and supervision.18 The Department of Justice similarly criticized the backlog of cases, 19 specifically finding that in 1977 more than 50 percent of the 202 open cases had not been investigated and resolved within a year after the complaint had been filed. Some complaints, which had been referred to other agencies for investigation, could not be handled properly because long periods of time had elapsed from the date of their referral and INS had failed to keep track of them.20 The INS, in response to the Justice audit, restructured its internal investigations unit into the Office of Professional Responsibility (OPR). New internal guidelines were drafted and implemented to accomplish, among other things, speedier complaint investigation and resolution21 through measures such as the establishment of a maximum investigative time 16 Ibid., p. 486. 17 Police Foundation, Police Personnel Administration, p. 200. 18 Mario Noto, testimony before the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 14-15, 1978, p. 210 (hereafter cited as Washington Hearing Transcript). Mr. Noto resigned from the Service in Septmeber 1979. He was the Deputy Commissioner from 1977 until his resignation. 19 DOJ 1977 Report, pp. 8-10. 20 Ibid., p. 9. See also the text accompanying n. 1 of this chapter. 21 OI 287.10. limit of 60 days after the date a case is assigned for investigation.22 Although the INS should certainly be commended for the new guidelines and the reduction in the number of open cases, a significent backlog of cases existed as of the end of FY 1978, as can be seen from OPR workload statistics. Out of 464 cases closed in FY 1978, 245 cases involved complaints that had been received during FY 1977 or earlier, with only 219 cases both opened and closed in FY 1978. The other 149 cases received in FY 1978 were still pending or awaiting final action23 at the end of the fiscal year. The total backlog, however, was larger, due to unresolved complaints received between FY 1974 and FY 1978. Although complete statistics could not be obtained for that period, OPR acknowledged that in one category, complaints alleging physical abuse of aliens by INS employees, 26 complaints received between February 1974 and October 1978 were still unresolved at the end of the fiscal year.24 Since 1978, however, the INS has improved its handling of OPI cases and reduced its processing backlog. 25 Public Awareness of the Incidents of officer misconduct can be reduced where the general public participates by reporting 22 OI 287.10(1)(1) provides: (1) SUBMISSION AND REVIEW OF REPORTS OF INVESTIGATION -(1) Deadline completion. All investigations of alleged misconduct not pending with another agency must be completed and reports written and submitted within 60 days of the date assigned. Each case shall be called up 45 days from the date of assignment to assure timely completion of the investigation. 23 Paul V. Kirby, Director, OPR, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Oct. 31, 1978. In that correspondence, Director Kirby stated that 368 cases were received by OPR. However, later correspondence to the Commission stated that 354 cases were opened by OPR in FY 1978. Paul V. Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Jan. 18, 1979. The reason for this discrepancy is not readily apparent. 24 Ibid. 25 The INS has stated that: The Service believes that statistics will show that our Office of Professional Responsibility is responsive to complaints and resolves them in a prompt, thorough, and fair manner. From the beginning of Fiscal Year 1979 on October 1, 1978, through the end of July 1979, the Office of Professional Responsibility received 291 allegations of employee misconduct. During this same period, 130 of these allegations were closed by investigation. At the end of July 1979 our monthly report to the Department concerning allegations of misconduct reflected 36 open cases which had been received prior to the beginning of FY 1979. A breakdown of these cases shows that investigation is being withheld in four (4) cases at the request of the Department of Justice which has itself initiated investigations in these matters. Six of these cases are under investigation by other Federal agencies. Our Office of Professional Responsibility has eleven of these cases under investigation, one of which is being handled by local jurisdiction and monitored by COPRR [the Office of Professional instances of improper officer conduct, but to encourage the reporting of violations, the public must be fully informed that a complaint process exists within an agency. To the extent that it helps in reducing incidents of officer misconduct, public awareness of the complaint process also serves to improve a law enforcement agency's relations with the community and can result in greater community cooperation in effective law enforcement. It is in the best interest of every law enforcement agency to seek improved relations with the public by informing it of the agency's complaint process26 and by designing complaint procedures to facilitate the filing of complaints by members of the community. As suggested in one study on law enforcement, supplying complaint forms to supervisory personnel and to various community organizations would be but one example of the steps that could be taken in this direction.27 In spite of the importance of public awareness, no evidence was presented to the Commission of any formal INS program28 or systematic procedure29 to inform the public either of its right to file complaints or of the INS process and procedures for filing complaints. Consequently, members of the public are not always aware that an INS complaint process exists.30 This lack of public knowledge about the existence of a complaint process at INS deters persons who wish to complain of rude treatment, improper investigative techniques, or other INS Responsibility of the INS Central Office]; one case is now before a grant jury; a civil action has been filed in two of these matters, and we are therefore withholding further investigation until resolution of the civil action. Twelve cases have since been closed and of this number four have been referred to our personnel function to consider disciplinary action. Also among these closed cases are two criminal prosecutions, one which has resulted in the conviction of the employee and the indictment of the other. Presently there are 153 open cases of all types, some of which are under investigation by other agencies, being considered for prosecution by United States Attorneys or being investigated by our Office of Professional Responsibility. It is important to note that all but one of these 36 older cases alleged criminal misconduct as do the majority of all allegations received and investigated by our Office of Professional Responsibility. The undertaking of a criminal investigation involving any government employee is a grave responsibility and is not taken lightly by our Professional Responsibility staff. A thorough investigation is required in each case, and in the interest of justice and fairness to the employee, no time limit can be set for the resolution of such matters once our preliminary inquiry has established sufficient corroborative evidence that reasonably supports the allegation. Leonel J. Castillo, Commissioner, INS, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Sept. 28, 1979, pp. 7-8 (hereafter cited as Castillo Letter). " National Advisory Commission on Criminal Justice Standards and Goals, "Report on Police," p. 477. " LEAA, "Improving Police/Community Relations,” p. 47. 28 Paul Kirby, testimony, Washington Hearing Transcript, pp. 73–74. 29 Ibid. 30 This lack of public awareness of INS complaint procedures is discussed later in this section. |