were provided as to their ethnic breakdown. Of the total 115 supervisory investigators, 8 (approximately 7 percent) were members of minority groups. Five supervisors were black, 3 were Hispanic, and none was female.78

In fiscal year 1978, relatively few minority investigators actually handled misconduct complaint investigations. Only 15 Hispanics and 7 females were assigned to investigations of the 354 cases opened in FY 1978.79 Director Kirby concluded that "it appeared from the review conducted and to the best of our knowledge that the remainder of the investigations were conducted by white males."

9980

Compilation of Complaint
Statistics

The internal investigations units of law enforcement agencies should maintain "[c]omplete records of complaint reception, investigation, and adjudication" so that statistical summaries can be compiled and published on a regular basis for all agency personnel and made available to the public.81 Although it is necessary to keep complaint investigations confidential to protect the privacy of accused employees, public disclosure of statistical summaries of complaint records "does not violate the confidential nature of the process,' ,"82 and, in fact, "such disclosure is often valuable because it tends to dispel allegations of disciplinary secrecy voiced by some community elements."83

Removal of the shroud of secrecy is not the only benefit that can be derived from compilation of complaint statistics. Statistical summaries of complaint records can also be used as a management tool. As one national study on relations between law enforcement agencies and the community stated:

Complaints from the public provide the police chief executive with invaluable feedback. The complaints, whether factual or not, increase his awareness of actual or potential problems and assist him in his use of problem solving tech

"Paul Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Jan. 18, 1979. The statistics were drawn from INS personnel records as of Sept. 23, 1978.

79 Ibid. Statistics as to the number of minority Professional Responsibility investigators remained at a similar level in 1979.

Statistically, of the approximately 140 investigators, including trained field and Professional Responsibility staff officers and those currently scheduled for Professional Responsibility training, 16 are minorities (2 black, 14 Hispanic) and 6 are female (1 black). Our Professional Responsibility headquarters investigative staff has one female investigator.

Castillo Letter, pp. 9-10.

Paul Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Jan. 18, 1979.

niques as well as providing him with another basis for evaluating the performance of his agency.84

Statistics can be useful in revealing "the number of complaints made against various units and members of the department"s and therefore help identify agency problem areas so that management can develop solutions before problems reach a critical point. OPR Director Paul Kirby recognized in his testimony that a study of the types of complaints received, "if it shows that the same people might be committing these same offenses," might be useful to INS in developing solutions to the problem of officer misconduct.86

Although the Office of Professional Responsibility submits monthly reports to the Department of Justice and tabulates the staff hours expended in processing OPR cases, there is no requirement that it compile or make public any statistics. Before January 1979, no statistical analysis had been made of the source of complaints received by INS to determine the relative number of allegations filed by INS employees, other United States citizens, or aliens.87 Moreover, no statistics were compiled on the disposition of misconduct investigations.

In order to provide the Commission with some statistics, OPR reviewed its case files in October 1978. That review, "as complete as [OPR's] records permit," disclosed that only a breakdown by job categories of accused INS employees could be obtained for the 224 complaints of physical abuse of aliens received by the Service between February 1974 and October 1978.88 The memorandum containing this information further stated:

Our records, which are incomplete, show that investigation sustained 20 of these allegations and that 26 are presently unresolved. The remainder were either not sustained or there is no record of the results of the investigation.89

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

82 Ibid., p. 479.

83 Ibid.

84 Ibid., p. 471.

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

86 Kirby Testimony, Washington Hearing Transcript, p. 83. 87 Ibid., p. 76.

as Paul Kirby, letter to Office of the General Counsel, U.S. Commission on Civil Rights, Oct. 31, 1978.

89 Ibid.

Findings and Recommendations 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.

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 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 acknowledgment 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 provided 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

statistics. It is anticipated that full computerization of these records will be a reality in the very near future. At that time our statistics will be readily available and it is our intent to publish these statistics in the INS Annual Report.

Castillo Letter, p. 10.

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:

a.

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,"

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

"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,92 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

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 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-Ser

vice 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.

Conclusion

The preceding eight chapters have reviewed the history of American immigration law and policy. This overview reveals the maze of immigration laws, practices, and procedures that confronts immigrants and prospective immigrants in pursuit of the rights, benefits, and privileges represented by the golden door. Unfortunately, in the process of immigrating to and remaining in the United States, persons can be and sometimes are deprived of their constitutional rights as well as certain benefits to which they may be entitled by law. This denial of rights can arise both when persons are unable or not allowed to exercise their constitutional rights and when due process protections are inadequate. Those who suffer from, or are susceptible to, the denial of rights include not only immigrants and prospective immigrants but also American citizens and residents who wish to be united or to remain united with their relatives from abroad.

In examining the practices and procedures of the Immigration and Naturalization Service for administering the immigration laws, the Commission found an agency with enforcement and service functions, two missions often in conflict with each other in the establishment of priorities for carrying out the statutory mandate of the agency. The Commission found that arbitrary exercises of discretion can and sometimes do occur in the handling of applications and petitions for benefits under the immigration laws. The Commission also found that limitations on the rights of individuals, including the right to counsel, the right to be free from unreasonable searches and seizures, the right to an impartial hearing, and the right to bail, can and do occur in

the enforcement of immigration laws. The Commission found an existing enforcement program, known as "Operation Cooperation," and a proposed employer sanctions enforcement program that offer the potential for employment discrimination against bona fide job applicants and employees, particulary those who are identifiable with major immigrant groups. The Commission also found an agency complaint system in need of improvement for effectively handling public complaints of employee misconduct.

In examining issuance of visas by Department of State consular officers, the Commission found a process that is susceptible to and sometimes does result in arbitrary exercise of discretion, but does not include an adequate review mechanism for consular visa decisions.

In examining the current immigration laws, the Commission found a visa allocation system that has discriminatory effects due to its per-country limitations and colonial quotas. The Commission also found a law that has apparently subjected American citizens and residents to impermissible searches and seizures by local police officers attempting to enforce its provisions, despite their lack of knowledge or training in the intricacies and complexities of immigration law and procedure.

Although the series of amendments to the Immigration and Nationality Act that have been enacted by Congress since 1952 have attempted to provide a fairer and more equitable immigration system, problems in that process (as noted in the findings and recommendations that follow) require further refinement of immigration law, practice, and procedure.