misconduct. A proper public information program would certainly help counteract suggestions that some aliens may not file misconduct complaints because they may assume, based on their experience with repressive law enforcement techniques in other countries, that no INS complaint process exists.31

In spite of its failure to establish a systematic procedure for the reception of public complaints, INS has recently attempted to create a greater public awareness of INS complaint procedures. High-ranking INS officials, in public appearances starting in 1977, have increased their efforts to inform the public of INS willingness to investigate complaints of misconduct,32 and testimony in San Diego revealed that a Community Border Affairs Advisory Council has been created in that city and that the INS has taken action on complaints forwarded by that group.33

These efforts notwithstanding, other testimony presented to the Commission indicates that the public remains inadequately informed of INS complaint procedures, as exemplified by the statement of the executive director of Mexican American Social Services in Los Angeles that he was not aware of any "particular structure within the INS" to receive and handle complaints against officers.34 Of greater concern is testimony from the Los Angeles open meeting on June 16, 1978, indicating that even one of the INS immigration judges was not aware of the proper procedure for filing a complaint. When asked where an individual could complain, the judge responded, "Well, I suppose he could start off with the supervisor, and then go right up front to the District Director."35 Although an immigration judge has no direct role in the resolution of complaints, such complaints are likely to be raised in the course of deportation proceedings, and every judge should be able to advise complainants about the proper manner for lodging a complaint. Immigration judges as well as other agency employees must be able to inform the public fully on INS complaint procedures if employee misconduct is to be prevented.

31 Austin Fragomen, testimony, New York Open Meeting Transcript, vol. 1, p. 247. Mr. Fragomen, a practicing immigration attorney and professor of immigration law at New York University and Brooklyn Schools of Law, is the former staff counsel to the Immigration, Citizenship, and International Law Subcommittee of the House Judiciary Committee. 32 Kirby Testimony, Washington Hearing Transcript, p. 79.

33 Donald Cameron, testimony before the California Advisory Committee to the U.S. Commission on Civil Rights, open meeting, San Diego, June 26, 1978, p. 248 (hereafter cited as San Diego Open Meeting Transcript). Mr. Cameron is the Chief Patrol Agent, U.S. Border Patrol, Chula Vista, Calif. "Delfino Varela, testimony before the California Advisory Committee to the U.S. Commission on Civil Rights, open meeting, Los Angeles, June 1516, 1978, p. 464 (hereafter cited as Los Angeles Open Meeting Transcript).

Notification to Complainants

One of the necessary elements of an effective complaint-processing system is provision for adequate notice of the proceedings to complainants. 36 In investigating complaints of misconduct, it is essential that complainants always be advised (preferably in writing but at least orally) of the results of the investigation and the final disposition of the complaint. According to the National Advisory Commission on Criminal Justice Standards and Goals, an effective complaint process would include the following elements:

a. The complainant should receive verification that his complaint is being handled;

b. the complainant should receive a general description of the investigative process and appeal provisions; and

C. the complainant should be notified of the final disposition of his complaint.38

When compared to these standards, INS internal investigation procedures are deficient in several respects. First, the INS complaint procedure as set forth in its Operations Instruction does not require INS to notify complainants that their complaints have been received and will be investigated, to provide them with copies of complaints, or to interview them during the investigation.39 Despite the absence of such a provision in its Operations Instruction, the INS has informed the Commission that chapter 23, pages 6-7, of its Investigator's Handbook provides that complainants should be interviewed. The INS stated that:

It is the practice of our Professional Responsibility staff to interview the complainant if he or she is the victim, or when the aggrieved party or the victim is not identified or specifics concerning the misconduct are not provided by the complainant. It is not good investigative

35 Jay Segal, testimony, Los Angeles Open Meeting Transcript, p. 495. Judge Segal is the Senior Immigration Judge of the Los Angeles INS District.

36 As with any complaint-processing system, management and supervisory personnel of a law enforcement agency should ensure that any person who files a complaint is treated courteously throughout the investigative process. LEAA, “Improving Police/Community Relations,” p. 47.

" Police Foundation, Police Personnel Administration, p. 200.

38 National Advisory Commission on Criminal Justice Standards and Goals, "Report on Police," p. 477.

39 See OI 287.10.

practice to initiate an inquiry based upon hearsay or secondhand information.40

Second, the INS complaint procedure does not require the Service to provide complainants with a description of the investigative process or of any appeal mechanisms available to them. Third, and most important, the INS process for investigating misconduct complaints fails to provide that complainants be notified of the outcome of their complaints, regardless of whether or not they result in disciplinary action against an INS officer."1

It is only through notification of all these elements that the public can be assured that the INS is interested in eliminating employee misconduct by its investigation of all complaints. Testimony from the open meetings indicates that, although INS is not required to notify complainants that their cases are being investigated, in practice INS does notify some individuals that investigations are being conducted. In California, the INS has acknowledged and taken action on complaints forwarded by the Community Border Affairs Advisory Council of San Diego,42 and in Texas, a county judge testified that he had received notification of the receipt of his complaints and the results of INS investigations of them.43

Failure to notify all complainants, however, can result in a public perception that INS is not investigating in good faith all complaints it receives. A witness at the San Diego open meeting testified on June 26, 1978, that complainants receive no response from INS after filing complaints, and this failure by INS to respond leads them to conclude that some complaints are referred from office to office and are not acted upon for as long as a year.**

Investigative Procedures

INS procedures for investigating complaints of misconduct by employees are set out in the agency's internal Operations Instruction.45 Briefly, they provide that when a complaint is received in an INS district office, Border Patrol sector office, or OPR,

40 Castillo Letter, p. 8.

41 See OI 287.10.

42 Cameron Testimony, San Diego Open Meeting Transcript, p. 48.

43 Jose Angel Gutierrez, Zavala County Judge, testimony before the Texas Advisory Committee to the U.S. Commission on Civil Rights, open meeting, San Antonio, Sept. 12-14, 1978, vol. 6, pp. 58-59. "Alberto Garcia, immigration consultant, testimony, San Diego Open Meeting Transcript, p. 55.

45 OI 287.10.

46 OI 287.10(d). These offenses are classified as "category I" violations. 47 OI 287.10(d). However, OI 287.10(e)(4) provides that the OPR Central Office shall handle allegations of “category II" violations filed against the

it is forwarded either to the OPR Central Office or to the INS Regional Commissioner, depending on the nature of the complaint. Generally, the OPR Central Office investigates allegations of serious misconduct, including such criminal activity as bribery, graft, and conflicts of interest, and violations of the Federal Civil Rights Act." The Regional Commissioners oversee most investigations of allegations of administrative misconduct, including violations of Service rules and procedures and noncriminal activity that adversely affects the efficiency or reputation of INS.47

In either case, after a complaint has been received and logged but before it is actually investigated, the complaint is analyzed by OPR or the Regional Office to determine whether the alleged offense is "prima facie misconduct" by a Service employee.48 If such evidence is contained in the complaint, an investigation proceeds in two stages.

Preliminary Inquiry. When a determination is made that a complaint involves prima facie misconduct by an INS employee, the Director of OPR or the Regional Commissioner will assign an investigator to conduct a "preliminary inquiry," defined as a "fact finding effort to determine whether an allegation of misconduct involving a Service employee warrants further investigation."49 When an investigator is assigned to do a preliminary inquiry, INS procedures merely provide that he or she be "contacted by telephone and furnished pertinent information concerning the allegation and given direction for expeditiously conducting and completing the inquiry."50 INS complaint procedures as set forth in its Operations Instruction do not require that the investigator actually receive a copy of the complaint, or any supporting documentation, or that he or she be notified in writing of the assignment and of the facts of the allegation at any time after the assignment by telephone. These omissions in the investigation procedure indicate that the Service fails to ensure that the rights of either the complainant or the accused employee are protected. The

officer corps, supervisory employees, attorneys, special inquiry officers, and law clerks.

**OI 287.10(i)(2). If the alleged offense was committed by someone other than an immigration officer (for example, a Customs Service officer) or if the alleged acts would not constitute misconduct even if true, INS does not investigate the complaint. OI 287.10(i)(2). However, where misconduct allegations involve employees of other agencies, the Director of OPR is responsible for referring that complaint to the appropriate agency. OI 287.10(e)(6)(vii), (i)(2)(b).

49 OI 287.10()(1).

50 OI 287.10()(2).

investigation itself may suffer if the investigator does not have the details of an allegation, including a copy of the written complaint, readily available to him or her during his investigation. It is conceivable that information not relayed initially by telephone because it did not seem important or "pertinent"51 could be pivotal in a decision to conduct a full investigation rather than terminate all investigation efforts. The accused employee's right to a fair investigation may also be prejudiced if the investigator is not given a copy of the complaint, because an investigator who is not able to plan the inquiry according to the facts alleged in a complaint may, consciously or unconsciously, investigate some aspects of the accused employee's life that are irrelevant to the complaint at hand. While INS has stated that it does, in fact, give each investigator assigned to handle an OPR case a copy of the alleged facts, this procedure is not required by the Operations Instruction.52

52 INS has stated that its actual procedures for notifying investigators of OPI assignments are as follows:

Operation Instruction 287.10 does provide, as noted, that the field officer selected be contacted by telephone. This telephone call is to alert that officer to his pending detail and to its purpose. At that time he is verbally provided all available material in the possession of the Professional Responsibility office. If copies of that material are available in the field, as is usually the case, the assigned field officer is advised of this fact and will, upon arrival at the location of his investigation, obtain the material. He is advised of the name and the location of the complainant or victim (if made known by the complainant and not anonymous) and, consistent with the Investigator's Handbook, will interview and obtain a sworn statement from such complainant. Otherwise the assigned field investigator will obtain all the necessary data in the form of sworn statements from the aggrieved party or the victim of the alleged act of misconduct. As previously stated, a field officer is under the direct control and guidance of a Professional Responsibility staff officer. Field officers are expected to contact their control staff officer daily by telephone. Such officer is constantly updated whenever new information becomes known to his staff control officer.

Castillo Letter, p. 9. It should be noted, however, that these procedures have not been incorporated in OI 287.10.

53 OI 287.10(k).

54 OI 287.10(k)(2).

55 OI 287.10(k)(1).

Director Kirby indicate that of the 354 cases of misconduct opened in fiscal year 1975, 121 allegations were closed after the preliminary inquiry.56 It is unclear, however, what amount and type of evidence is necessary to "reasonably support" a misconduct complaint and to justify a full investigation.

Because this standard as set forth in the Operations Instruction is ambiguous and can be interpreted to require a level of evidence ranging from a mere shred to a substantial amount, it is possible that a complaint will be dismissed even though some evidence exists favoring further investigation.57 To maintain public confidence in OPR's integrity and to promote professionalism among INS employees, it is important to ensure that meritorious complaints are not summarily closed due to inconsistent interpretations of the "reasonably support" standard, particularly since there is no agency appeal mechanism for dissatisfied complainants.58 INS complaint procedures as set forth in the Operations Instruction fail to require that any evidence supporting a complaint of misconduct be given thorough consideration and that all doubts at the preliminary inquiry stage be resolved in favor of a more thorough investigation.

Where a full INS investigation is warranted, the assigned investigator usually has 60 days to complete the investigation and written report,59 which will be reviewed by the Director of OPR or the Regional Commissioner to determine the disposition of the complaint.60

To provide flexibility in the disposition of complaints, and to promote fairness to all parties in56 Paul Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Jan. 18, 1979.

57 INS has stated that, in practice:

The term "reasonably supports" is used in the same sense as is the term "probable cause," i.e., an act of misconduct has probably been committed and a known or unknown INS employee has probably committed that alleged act. The procedure followed within our Office of Professional Responsibility is that all evidence gathered during either a preliminary inquiry or investigation is thoroughly reviewed by Professional Responsibility staff officers. These are highly experienced Criminal Investigators selected for their competence and known for their objectivity. Any doubts they may have concerning the evidence or the lack of evidence is resolved in favor of a full or further investigation. If the evidence reasonably supports criminal misconduct during the preliminary investigation stage, the case will be referred to another agency for investigation, if appropriate, or will be brought to the attention of the United States Attorney having jurisdiction. Castillo Letter, p. 8. It should be noted, however, that these provisions are not incorporated in OI 287.10 or the I&NS Investigator's Handbook.

58 OI 287.10(k)(1). This section merely provides that, where further investigation of a complaint is not warranted, the case will be closed, the case control log will be so noted, and the accused employee will be notified of this action. Notice to the complainant of the results of the inquiry or of his or her right to appeal is not required or discussed.

50 OI 287.10(1).

® OI 287.10(m).

volved, the National Advisory Commission on Criminal Justice Standards and Goals recommends the use of five classifications in disposing of investigated complaints: "sustained," "not sustained," "exonerated," "unfounded," or "misconduct not based on the original complaint."61 Briefly, an allegation would be "sustained" when an accused employee committed all or part of the alleged acts of misconduct, while a "not sustained" disposition indicates that the investigation produced insufficient information either to prove clearly or disprove the allegations. "Exonerated" is used where the alleged act did occur, but was justified, legal, and proper in view of all the circumstances. A complaint would be "unfounded" where the alleged act did not occur, while a finding of "misconduct not based on the original complaint" indicates that there is evidence of misconduct other than that alleged in the original complaint. The National Advisory Commission considers inclusion of the last category of "misconduct not based on the original complaint" as necessary to ensure that the public does not misinterpret the number of sustained complaints reported.62

Under the INS complaint procedures as set forth in the Operations Instruction, an allegation is classified in one of only two categories, either as "sustained," where the facts developed by investigation reasonably support the allegation of misconduct, or "not sustained," where the investigation fails to substantiate the allegation of misconduct.63 No definition is provided for the terms "reasonably support" or "fails to substantiate," and no clear evidentiary standard is set forth to guide the decisionmaker in determining whether an allegation should be sustained. Although the Operations Instruction sets forth only two categories for complaint disposition,

61 National Advisory Commission on Criminal Justice Standards and Goals, "Report on Police," pp. 487-88.

62 Ibid., p. 488. The National Advisory Commission report stated:

Without the category of "misconduct not based on the original complaint," the number of sustained complaints might be subject to public misinterpretation. The investigation of complaints from the public alleging such acts as excessive force, discourtesy, and dishonesty, frequently are not sustained because of lack of sufficient information. During the investigation, however, such acts of misconduct as failing to prepare a report, improperly disposing of property, or some other irregularity, might be discovered. If the complaint simply is classified as sustained, it is difficult to know whether the judgement is based upon the original allegation or upon misconduct discovered later.

63 OI 287.10(m). A sustained allegation of category I misconduct is referred to a U.S. attorney for possible prosecution, while a sustained allegation of category II misconduct is submi. ed to an INS Associate Commissioner for Management for appropriate corrective action. In the case of an unsustained allegation, the file is closed and a letter from the Director of OPR or a Regional Commissioner is sent to the involved employee notifying him of this disposition.

INS has stated that, in practice, it actually uses a four-classification system which does not include the category "misconduct not based on the original complaint."64

Selection of Investigators

Investigators who conduct Office of Professional Responsibility field investigations are selected by the appropriate Regional Commissioner or by the Director of OPR.65 Such investigators usually handle professional integrity cases only on a part-time basis and are drawn from the Service's existing pool of investigators,66 whose full-time duties primarily consist of doing background searches on applicants who seek immigration benefits.

Although INS does recognize and designate certain types of investigations as being more complex than others and has attempted to allocate its most experienced investigators to such cases,67 there is apparently no written standard, procedure, or guideline used by INS to select investigators to handle professional integrity cases.68 When asked to describe the selection procedures, OPR Director Paul Kirby testified: "We try to take the most capable men, and we have asked for volunteers. They like to put it in their resumes, but I don't think they like to be called an 'internal investigator'."69

A Regional Commissioner or the Director of OPR may, in fact, consider the complexity of a case and the relative experience of an investigator in deciding case assignments. However, such consideration is not required under INS procedures as set forth in the Operations Instruction, leaving open the possibility that a complex case will be given to an inexperienced officer and a simple case to a seasoned officer. In its 1977 Annual Report to the Attorney

64 INS has described its procedures as follows:

The terms "sustained," "not sustained," "exonerated," and "unfounded" are used by our Office of Professional Responsibility despite the fact that Service Operations Instruction 287.10 sets forth only the terms "sustained" and "not sustained." These terms are used by the Professional Responsibility staff as set out in chapter 23 of the INS Investigator's Handbook, page 6. The term "misconduct not based on the original complaint" has not previously been used by our Professional Responsibility staff but most certainly can be added to our list of

terms.

Castillo Letter, p. 8.

65 OI 287.10()(2).

66 Kirby Testimony, Washington Hearing Transcript, p. 73.

67 The Operations Instruction provides that an OPR staff officer from the Central Office should be assigned to conduct investigations involving certain category I offenses committed by supervisory officer corps employees or managers. OI 287.10(k)(2)(i), (iii).

68 OI 287.10()(2) merely provides that the "Director of OPR or Regional Commissioners (or their designee) will select an employee to conduct a preliminary inquiry."

" Kirby Testimony, Washington Hearing Transcript, p. 73.

General, the Department of Justice's Office of Professional Responsibility" reported that INS did not assign its most experienced investigators to handle complex and serious cases of professional integrity." An investigator's experience in handling OPR cases has been an especially important consideration because, until 1978, no special training in techniques for investigating professional integrity cases was available to inexperienced officers. Informal training is now provided by the Deputy Director of OPR, who "went out into each of the regions and drew on people from the regions to instruct them in OP[R]-type investigations. These are investigators from all fields in INS."72 INS has stated that it is Service policy to assign professional integrity cases to only those investigators who have received training in handling such cases.73

To minimize possible professional or personal conflicts in the conduct of preliminary inquiries and full investigations, nonsupervisory investigators assigned to a case may not be from the same operating branch as the accused employee," but they may handle cases arising in the region to which they are assigned. Supervisory investigators have fewer restrictions and are also allowed to handle cases in their same district or sector. Given the structure of the INS career ladder and the high degree of mobility within the officer corps, the current scheme as set forth in the Operations Instruction permits an investigator to handle a case involving a past or prospective supervisor, an employee he or she has supervised, or a friend or colleague, even though INS has stated that its investigators are questioned as 70 In 1977 the Justice Department's Internal Audit staff reviewed the operations of the OPI (now OPR) in INS and published its findings in the annual report of the DOJ Office of Professional Responsiblity. Richard Rogers, DOJ Office of Professional Responsibility, Deputy Counsel, testimony, Washington Hearing Transcript, pp. 71–72.

71 DOJ 1977 Report, p. 10.

73 Kirby Testimony, Washington Hearing Transcript, p. 72. 73 The INS informed the Commission that:

The selection of field officers to conduct these investigations is made by a Central Office staff officer through the Service Regional offices, but it is the Central Office staff officer who requests a specific individual to conduct an investigation in a specific matter. These field officers are to be only those who have previously been trained during a Professional Responsibility conference. If at any time a trained field officer shows a lack of impartiality or objectivity, a breach of confidence, or in any manner indicates that he has not done a full and credible investigation to gather all the facts, that officer will not again be used to conduct a Professional Responsibility investigation. This determination to discontinue a field officer is based upon a review of his work by an experienced staff officer.

The selection of field officers for Professional Responsibility training is based in part upon their grade, experience and background, and these determinations are made through discussions with their supervisors, the Regional officers or others intimately familiar with that officer's work, personality, and habits.

to any prior relationships before they are assigned to a case.75 Although current provisions for the assignment of investigators are an improvement over previous procedures,76 it is still possible that investigators may be influenced, consciously or not, by their working relationship with the employees they are investigating.

Law enforcement agencies, such as INS, that have daily contact with the public in the performance of their duties have an obligation to assure those communities that the law is administered in a fair and impartial manner. It has been recognized that, in establishing a disciplinary system to process misconduct complaints against police officers, the internal investigation unit should include minority-group officers as well as white officers, and it is preferable that all officers have an established reputation for fairness in the minority community." The selection of officers for their investigative ability, fairness, and commitment to the elimination of officer misconduct or misuse of authority is an important consideration in creating a good relationship between the community and a law enforcement agency.

Investigators assigned to perform professional integrity investigations are selected from the current pool of INS criminal investigators. A breakdown of INS investigators by race, national origin, and sex for fiscal year 1978 reveals that, out of a total of 1,076 investigators, 130 (approximately 12 percent) were members of minority groups. Of this number, 44 investigators were black, 81 were Hispanic, 4 were Asian American, and 1 was American Indian. There were 46 female investigators, but no statistics Castillo Letter, pp. 8-9. It should be noted, however, that these provisions have not been incorporated in OI 287.10 or the I&NS Investigator's Handbook.

74 OI 287.10(j) & (k).

75 In a letter to the Commission, the INS stated:

It should also be noted that all field officers assigned Professional Responsibility investigations are under the direct control of a Central Office staff officer who advises and guides that field officer during his investigation. Prior to any assignment, field officers are questioned as to any prior acquaintances or relationship they may have had with the accused employee. If a prior relationship exists or for any reason the field officer feels that he cannot properly conduct the investigation because of the accused employee's position, another field officer will be selected. Our aim is total impartiality and objectivity. Castillo Letter, p. 9. It should be noted, however, that these provisions have not been incorporated in OI 287.10 or the I&NS Investigator's Handbook.

76 Mario T. Noto, INS Deputy Commissioner from 1976 to 1979, testified before a House subcommittee that, prior to 1973, frequently "allegations of employee misconduct were handled at the local level by supervisors who acted as both judge and jury." Justice Department Internal Investigation Policies (Part 2): Hearings Before a Subcommittee of the House Committee on Government Operations, 95th Cong., 2d Sess. (1978), p. 156.

" LEAA, "Improving Police/Community Relations,” p. 47.