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maintain the effectiveness of police department internal investigations units and to develop greater community support for the efforts of police officers. Where applicable, the recommendations of the National Advisory Commission on Criminal Justice Standards and Goals, 11 the LEAA National Institute of Law Enforcement and Criminal Justice, 12 and the Police Foundation 13 are used here as standards of comparison for evaluating the adequacy of the INS complaint investigation process.

Six components necessary for a responsive complaint investigation system will be considered: prompt complaint resolution, general public awareness of the complaint process, notification to complainants, sound investigation procedures, careful selection of investigators, and compilation and publication of complaint statistics.

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

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, 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

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 resolutional through measures such as the establishment of a maximum investigative time

11 National Advisory Commission on Criminal Justice Standards and Goals, “Report on Police" (1973). 13 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). 1 LEAA, “Improving Police/Community Relations,” p. 48. 15 National Advisory Commission on Criminal Justice Standards and Goals, "Report on Police," pp. 483, 486.

16 Ibid.,


486. 17 Police Foundation, Police Personnel Administration, p. 200. 16 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
Complaint Process

Incidents of officer misconduct can be reduced where the general public participates by reporting

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 under-
taking 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 reason-

ably 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).
26 National Advisory Commission on Criminal Justice Standards and
Goals, “Report on Police," p. 477.
27 LEAA, "Improving Police/Community Relations,” p. 47.
2Paul Kirby, testimony, Washington Hearing Transcript, pp. 73–74.

Ibid. 30 This lack of public awareness of INS complaint procedures is discussed later in this section.

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. 2 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. ** 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

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.37 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


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.

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

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 Internation-
al Law Subcommittee of the House Judiciary Committee.
32 Kirby Testimony, Washington Hearing Transcript, p. 79.
» 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 15-
16, 1978, p. 464 (hereafter cited as Los Angeles Open Meeting Transcript).

35 Jay Segal, testimony, Los Angeles Open Meeting Transcript, p. 495.
Judge Segal is the Senior Immigration Judge of the Los Angeles INS
38 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.
37 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.

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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.“

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.“

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.46 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.“

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

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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.
12 Cameron Testimony, San Diego Open Meeting Transcript, p. 48.
* 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.
• OI 287.10(d). These offenses are classified as “category l" violations.
57 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

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).
** OI 287.100)(1).
50 OI 287.10(1)(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

Full Investigation. After an investigator has completed the preliminary inquiry and forwarded a report to the Director of OPR or a Regional Commissioner, the report is reviewed by that office to determine whether a further investigation into the complaint is “warranted,”53 which depends upon whether the facts developed by the preliminary inquiry "reasonably support" the complaint of misconduct.54 If the facts developed by the preliminary inquiry do not "reasonably support” the allegation of misconduct, the matter will be closed and the investigation ends.55 Statistics provided by OPR

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 in


31 Ibid.
62 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 Investiga-
tor'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).
35 OI 287.10(k)(1).

5e 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 l&NS Investigator's Handbook. 56 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). 60 OI 287.10(m).

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