An Overview of the INS

Law enforcement and criminal justice, as they apply to the foreign-born as well as the native-born, are mainly the provinces of state and local government. But the federal role, led by the Immigration and Naturalization Service (INS), part of the Justice Department, has been growing over time. This country since 1917 has had some kind of framework for removing criminal aliens; in 1925 Congress established the U.S. Border Patrol to provide a means of arresting aliens who attempt to enter illegally. The current state of the art in dealing with the problem consists of provisions inserted into various crime and immigration legislation over the last few decades. Under current law the INS is authorized to deport aliens convicted of "aggravated felonies" — violent, property, or drug crimes that are punishable by prison sentence of at least one year, whether or not such a sentence was imposed or served. The INS enforcement process typically begins when the agency’s investigators identify potentially deportable aliens within the federal, state, or local justice systems. Because of limited resources, INS tends to avoid pursuing aliens who are released on probation or a suspended sentence; instead the agency focuses on persons nearing the end of a prison sentence.

Once an alien has served his time — as with citizens, most do so in state rather than federal prison — INS detains that person and begins proceedings through its Institutional Hearing Program (IHP) to determine his or her deportation status. If after a certain length of time INS determines either that the alien is deportable or that further investigation is needed, the agency places a "hold" on that person. If the INS determines the alien poses no threat to the public, it releases that person. If, on the other hand, the INS issues a deportation order, the criminal alien is entitled to contest the decision.⁴⁷  At the hearing, the alien may present various grounds for immunity, including political asylum and extreme family hardship. The potential deportee may appeal an adverse ruling through the Department of Justice, the federal courts and, finally, the Supreme Court. If an alien has been deported for a felony, he may not reenter. If he is caught reentering, he is subject to a prison sentence of up to 20 years.⁴⁸  A conviction is usually assured unless the defendant is in the country lawfully. The INS usually identifies returned felons through a computerized database of thumbprints from well over 2 million deportees.

Even where immigrants have not committed a crime, INS performs a key gatekeeper role in the naturalization process. All immigrants applying for citizenship must fill out an application requiring them to list any prior arrests or convictions, and swear under oath that the information is true and complete. They also must have their fingerprints taken. Until fairly recently, it was common for INS to deny citizenship on the grounds that lying about one’s criminal record was a demonstration of poor moral character. Pressure from mass-immigration groups, however, has all but eliminated this explanation as a basis for rejection.

More Deportations in the Face of More Crime

In the face of high rates of immigrant crime, at least in certain states and cities, the logical impulse is to demand INS remove more criminals. But the reality is that INS is deporting criminal aliens at a record pace. During fiscal years 1993-2000 the number of INS removals (deportations plus exclusions)⁴⁹  more than quadrupled from 42,469 to 181,572, while removals related to criminal offenses grew two and a half times from 27,827 to 69,093 (see Table 2). By contrast, in fiscal 1984 the agency removed only about a thousand aliens on criminal grounds.⁵⁰  In any given year for the 1993-98 period Mexicans accounted for far more than half of all removals (see Table 3).

There are several reasons for the huge jump in removals. First, and most obviously, the federal government has put a high priority on the removal of aliens. INS Commissioner Doris Meissner in Senate testimony last March pointed to "identify and remove criminal aliens and minimize recidivism" as the top agenda item in her agency’s Interior Enforcement Strategy.⁵¹  Toward this end, INS in recent years has pressed Congress for more funding for state and local detention bed spaces, juvenile bed spaces, air transportation for aliens to detention space and removal from the U.S.

Second, and related to the first, state governments, as they must pay for prosecuting and incarcerating criminal aliens, have secured large amounts of federal support through the 1994 Violent Crime Control and Law Enforcement Act. The act initially authorized $1.2 billion for specialized enforcement provisions, including border control, criminal alien deportation, asylum reform, and a criminal alien tracking center. The law also authorized another nearly $500 million to reimburse states and localities for the cost of incarcerating aliens. The availability of federal aid has induced many states, especially along the Mexican border, to develop programs to reduce illegal entry, deter the employment of illegal immigrants, and improve crime-fighting abilities.⁵²  This has fostered closer cooperation between states and INS on deportation strategies. A criminal alien’s first contact with INS usually occurs while in state prison. Through an enhanced Institutional Hearing Program, states work closely with INS to start deportation proceedings before immigrants are released. The INS also has developed programs to screen the populations of jails in major metropolitan areas to identify offenders who may never be sentenced to prison, but who are subject to deportation.

Third, INS has developed and implemented early-release programs pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The law authorizes INS to deport nonviolent offenders who were otherwise not eligible for early release when such removal "is appropriate and in the best interest" of the U.S. or the respective state of incarceration. Several states, including Florida and New York, have special programs that single out foreign-born inmates to receive clemency or early parole in exchange for immediate deportation.⁵³  These early-release programs augment state prison programs for inmates generally, in which time served in prison is shorter than the sentence reflected in court records.

Fourth, Congress over the years has broadened the range of deportable offenses. Current removal statistics include any alien who has been convicted of a crime in the United States, even if the deportation or exclusion order is not based on the criminal conviction that resulted in the sentence. A "criminal alien" now can be so classified on grounds that he entered without proper inspection. The federal government’s war on drugs, though not intentionally directed at immigrants, since the 1980s has had the effect of putting many in prison. Laws over the years have stiffened penalties for violations involving controlled substances. Butcher and Piehl concluded that immigrants were disproportionately incarcerated for drug-related crimes.⁵⁴

Fifth, many aliens who are arrested for deportable offenses are hardly first-timers in the criminal justice system. In fact, in a number of cases, they already had been deported, reentered the U.S., and committed another crime. The General Accounting Office in a mid-1980s analysis of 200 cases in the New York City area found that among aliens arrested for such offenses, 77 percent had been arrested at least once before, 45 percent at least twice, and 11 percent five or more times. Among aliens convicted after being identified as potentially deportable, 44 percent had been convicted at least once, 23 percent more than once and 3 percent five or more times. Six percent of these aliens had been deported as criminal aliens, returned to the United States and were rearrested at least once after returning; 5 percent had been deported twice and were rearrested at least once after their second return.⁵⁵  In its mid-1980s six-city study the GAO analyzed FBI criminal history records on 165 deported criminal aliens, and found 56 had reentered the U.S. at least once and had come into contact with the criminal justice system. These 56 aliens collectively accounted for 152 deportations, 122 reentries, and 260 arrests.⁵⁶  A 1992 report to Congress indicated that INS agents encountered and arrested 461 previously deported criminal aliens who had re-entered the U.S. in fiscal 1991. Senate investigative staff, however, believed the re-entry figure was far higher because many criminals travel back and forth across the U.S.-Mexican border with impunity.⁵⁷

Obstacles to Deportation: Foreign Governments

It is a mark of the severity of the immigrant crime problem that it may have gotten worse despite the sharp upswing since the mid-1980s in arrests, convictions, and deportations. Common sense would dictate the focus should be on removing obstacles to deportation. These hurdles have rightfully drawn much attention, especially as they intertwine immigration with foreign policy.

One obstacle is that immigrant criminals continue their life of crime in their native country. Foreign diplomats report that criminal activity among recent deportees is "a major factor" or "the main reason" for sharply rising crime rates throughout Central America and the Caribbean.⁵⁸  Taylor and Aleinikoff observe:

The growing presence of U.S. gangs in El Salvador (and to a lesser extent throughout the region) is perhaps the most visible example. The Salvadoran Civilian National Police force, which was rebuilt from scratch as part of the 1992 peace accord, simply does not have the training or equipment to stem the tide of violent crime that is sweeping the country. As criminal alien deportations increase, the sheer numbers can overwhelm the already insufficient law enforcement capabilities of many receiving countries.

It’s not hard to understand why the governments of El Salvador and elsewhere are reluctant to take back their criminal aliens who come to the U.S. Indeed, foreign governments have created measures of their own to impede INS removal efforts. Some, such as Cuba, Laos, and Vietnam, flatly refuse to take back their criminals, making the U.S. the government by default of effectively stateless alien criminals. Israel is unusual in that it refuses to extradite its citizens, a major problem since many top-echelon Russian-Jewish organized crime figures in the U.S. and elsewhere have become Israeli citizens.⁵⁹  Foreign non-cooperation explains why the 1980 boatlift from Cuba’s Port of Mariel had such a devastating long-run impact on this country. As many as 40,000 criminals, many dumped by the Castro government, entered the U.S. by way of the South Florida coast.⁶⁰  Immune to repatriation, these immigrants, a large portion of them hardened criminals, settled in Florida or scattered about the U.S. to ply their trade. In Elizabeth, N.J. some 600 of the several thousand Mariel refugees who settled in the city later were arrested for felonies. In nearby Union City, N.J., these aliens committed about one-third of all felonies in the mid-1980s. And in Las Vegas, law enforcement officials estimated about one-fourth of all Cuban refugees in the city were career criminals.⁶¹

Most nations do not have an explicit policy of refusal to take back criminals. But any number of them have devised ways to make the process more lengthy and costly for the INS.⁶²  First, these countries often stall in verifying the identity of potential deportees. Second, they delay in securing travel documents. Finally, they may link criminal alien deportations to ongoing negotiations over extradition treaties. Each of these actions raises the cost of detention until the final deportation order, and possibly frustrates INS out of issuing the order in the first place.

Obstacles to Deportation: Domestic Politics

However fitfully, INS has managed to stem a large amount of potential immigrant crime. But as immigration, legal and illegal, reached record-high levels during the 1990s, meeting its responsibilities has grown more difficult. To be sure, it is a large agency, with an enormous range of activities now costing more than $4 billion a year combined. By the end of fiscal year 2000 there were some 32,000 INS employees, twice as many as when Bill Clinton became president. Of that figure, 9,212 served as Border Patrol agents, more than double the FY 1993 total of 3,965.⁶³ Trying to identify, apprehend, and remove some 6 million illegal immigrants, whose net numbers increase annually by 275,000,⁶⁴  is a daunting enough task. Yet despite increases in money and manpower, federal, state, and local law enforcement officials still argue that the INS and other federal law enforcement agencies lack the sufficient tools.

That may well be true, at least under current immigration law. But INS in particular has structural weaknesses that need reform regardless of its funding levels. For one thing, like any number of federal agencies, INS can fall prey to intense politicization. Rarely was this more pronounced than during 1996, when enforcement in several district offices all but broke down. Separate investigations by Congress, the General Accounting Office, and the Justice Department, as summarized in a chapter of David Schippers’ recent book, Sellout: The Inside Story of President Clinton’s Impeachment,⁶⁵  revealed the Clinton White House had intimidated INS officials into speeding up the naturalization process for hundreds of thousands of aliens, a sizeable portion of whom were felons, in the months before the 1996 election.

Exploding Workloads, Inadequate Resources

INS has encountered substantial criticism over the years to the effect that the right hand doesn’t know what the left hand is doing. Sen. William Roth, R-Del., summarizing a subcommittee report in 1993, noted that in addition to lacking sufficient resources to combat immigrant crime, the agency often made ineffective use of the resources available to it. The computer system, he said, seemed "totally inadequate to the task." Worse, he noted, was the labyrinth of procedures INS had to follow in order to deport someone, procedures so time-consuming and filled with loopholes that criminal aliens could stay in the U.S. for years while they appeal their cases.⁶⁶  The crime act of 1994 and the immigration act two years later did address some of these problems, but the reality remains that INS is a bureaucracy bound by cumbersome rules.

Whether one sees INS’s shortcomings as due to external influence or internal inefficiency, the agency has often has fallen short of its mission of removing alien criminals. Recent reports by the General Accounting Office indicate the agency’s efforts to identify and remove imprisoned aliens need improvement. In a 1997 report, based on a sample of some 17,000 inmates, the GAO estimated INS in fiscal 1995 released nearly 2,000 criminal aliens into U.S. communities without a prior determination of risk they posed to public safety. INS, upon GAO request, found that 23 percent of a sample of 635 criminal aliens had been rearrested for crimes, including 183 felonies. The INS did not complete the Institutional Hearing Program process for the majority of criminal aliens released from federal and five state prisons in the second half of FY 1995. The INS database in 1995 did not have records on about a third of foreign-born released inmates. The report cited a shortage of qualified agents — the attrition rate for INS enforcement agents was about 30 percent, much higher than the 11 percent for INS staff — and resistance from certain states to cooperate fully in the IHP process as major explanations for the problems.⁶⁷

The GAO issued a follow-up report in 1998 analyzing data on more than 19,000 individuals in the custody of either four populous states or the U.S. Bureau of Prisons, and identified as foreign-born and released from prisons during January 1 through June 30, 1997. This report showed INS and the Executive Office for Immigration Review did not have records on 7,144, or 36 percent, of these persons. Of that portion, 1,903, or 27 percent, were potentially deportable aliens and about 1,200 of that latter figure were aggravated felons. Breaking the sample down further, 80 of these criminal aliens already had been rearrested. On a more positive note, of the 12,495 potentially deportable cases for which INS did have records, more than 90 percent were removed from the U.S. within one month of prison release, something the GAO also found two years earlier.⁶⁸ Yet a large portion of criminal aliens released to INS did not have final deportation orders at the time, something contributing toward higher detention costs (see Table 4).

The Immigration and Naturalization Service’s main problem is its exploding workload. That is why despite its successes, the immigrant crime problem paradoxically seems every bit as intractable as it did two decades ago. Despite having expanded authority and funding to track down, arrest, and remove felons, INS is swimming upstream. The pressure to constantly do much more with limited resources has taken a toll on Border Patrol agents; since the mid-1990s the patrol’s annual attrition rate has doubled from around 5 percent to 10 percent.⁶⁹  The INS faces increasing pressures to loosen admissions and citizenship standards, especially from ethnic and other organizations that tend to be allied with the Democratic Party. What the agency needs is a smaller workload, not simply more administrators and law-enforcement agents. This, unfortunately, is something that requires the political will to initiate major changes in laws governing admissions eligibility.

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End Notes

⁴⁷ The 1994 Violent Crime Control and Law Enforcement Act authorized the use of administrative removals, thus bypassing a required court hearing for aliens not lawfully admitted for permanent residence who were convicted of an aggravated felony, but were not eligible for relief from removal. There is no doubt this has removed a lot of bottlenecks in the deportation process.

⁴⁸ In practice, the average sentence for reentry is 60 months (five years), according to the U.S. Attorney in Utah, David Schwendiman, who spearheaded a successful crackdown in immigrant crime in that state. Brian Maffly, "Increased Staffing Accounts for Leap in Prosecution of Illegally Returning Felons," Salt Lake Tribune, July 29, 1998.

⁴⁹ Formally, most removals of illegal immigrants fall under what the INS classifies as "voluntary removals with safeguards." Under this arrangement, the alien admits to his illegal status and agrees to leave the country. Virtually all these cases involve Mexican border jumpers. A deportation occurs when the alien does not admit to illegal status or is not offered the option; in such cases, INS places the alien under "docket control" and prepares a file on that person for potential use in a hearing.

⁵⁰Statistical Yearbook of the Immigration and Naturalization Service, annually, and other INS sources. See also Margaret H. Taylor and T. Alexander Aleinikoff, Deportation of Criminal Aliens: A Geopolitical Perspective, Washington, D.C.: Inter-American Dialogue, 1998, p. 1.

⁵¹ Testimony of Commissioner Doris Meissner, Immigration and Naturalization Service, before the U.S. Senate, Committee on Appropriations, Subcommittee on Commerce, Justice, State, and the Judiciary concerning the President’s FY 2001 Budget Request, March 7, 2000, p. 10.

⁵² See U.S. Department of Justice, National Institute of Justice, "Crime & Illegal Immigration: Emerging Local, State & Federal Partnerships," National Institute of Justice Journal, June 1997, p. 6.

⁵³These early-release programs are in addition to the standard time-credit and good-behavior guidelines that states have for prisoners generally. This explains why for immigrants, as well as citizens, actual time served is often far less than the sentence indicated in court records. As a result of these sentence-reduction mechanisms, state prison inmates on average serve 38 percent of their total sentence. See U.S. Department of Justice, Bureau of Justice Statistics Bulletin, NCJ-163391, Felony Sentences in State Courts, 1994, January 1997.

⁵⁴ Kristin F. Butcher and Anne Morrison Piehl, "The Role of Deportation in the Incarceration of Immigrants," in Issues in the Economics of Immigration, George J. Borjas, ed., Chicago: University of Chicago Press, 2000, pp. 351-85. Interestingly, the authors admitted (p. 354) that they excluded from the data "lifers" — those immigrants in for murder — because they do not have determinate sentences. It is precisely such criminals, however, that give most cause for concern.

⁵⁵ U.S. General Accounting Office, Criminal Aliens: INS’s Investigative Efforts in the New York City Area, GAO/GGD-86-58BR, March 1986.

⁵⁶ U.S. General Accounting Office, Criminal Aliens: INS’ Enforcement Activities.

⁵⁷ U.S. Senate, Committee on Governmental Affairs, Permanent Subcommittee on Investigations, Hearing on Criminal Aliens in the United States, Staff Statement, November 10, 1993, p. 25.

⁵⁸ Taylor and Aleinikoff, p. 8.

⁵⁹ Friedman, Red Mafiya, p. 277-78. Israeli police officials estimate that Russian-Jewish mobsters have poured more than $4 billion into Israel’s economy, though estimates range as high as $20 billion.

⁶⁰ See Muller, Immigrants and the American City, p. 214. Not all immigrants from the boatlift were criminals. The boatlift was an outgrowth of a three-way dispute between Cuba, the U.S., and Peru over the right of some 3,500 dissident Cubans to seek asylum in the Peruvian Embassy in Havana. The U.S. agreed to accept the dissidents if they first went to Costa Rica. Castro responded that anyone who wished to leave his country could, but had to go directly to the United States. The initial wave of flotillas received extensive media coverage, inducing Cuban exiles in the Miami area to charter boats and (in violation of U.S. law) pick up family, relatives, and friends in Cuba. In a relatively short time some 125,000 Cubans had arrived in Key West and other South Florida points. The Carter administration was in a double bind. On one hand it wanted to aid those escaping an enemy nation, but on the other hand officials realized the result was chaos. About two weeks after the exodus began there were reports that Castro was using the crisis to empty his prisons and mental institutions. At that point popular support for the boatlift cooled, and Carter officials imposed fines and seized vessels. See Roger Daniels, Coming to America: A History of Immigration and Ethnicity in American Life, New York: HarperCollins, 1990 (paperback ed., 1991), p. 347.

⁶¹ "In retrospect," argues Muller, "the acceptance of these criminals ranks as one of the most ill-conceived decisions of the Carter administration." (ibid., p. 215). For a detailed look at the impact of the Mariel boatlift on Dade County and elsewhere in Florida, see U.S. Senate, Committee on Governmental Affairs, Illegal Alien Felons: A Federal Responsibility, Hearing Before the Subcommittee on Federal Spending, Budget, and Accounting, One Hundredth Congress, First Session, March 12, 1987, Washington, D.C.: U.S. Government Printing Office, 1988.

⁶²Taylor and Aleinikoff, "Deportation of Criminal Aliens," p. 9.

⁶³ U.S. General Accounting Office, Border Patrol Hiring: Despite Recent Initiatives, Fiscal Year 1999 Hiring Goal Was Not Met, GAO/GGD-00-39, December 1999, p. 7; James Pinkerton, "1,708 New Agents Help Beef Up Force for the U.S. Border Patrol," Houston Chronicle, November 17, 2000. The latest round of hiring came from a pool of a record-high 91,000 applicants and employed $2,000 signing bonuses to lure applicants.

⁶⁴ U.S. Department of Justice, Crime & Illegal Immigration, p. 3.

⁶⁵ David P. Schippers with Alan P. Henry, Sellout: The Inside Story of President Clinton’s Impeachment, Washington, D.C.: Regnery, 2000, see pp. 37-49. This information may also be found at http://www.cis.org/articles/2000/back1000.html, in the Center for Immigration Studies' Backgrounder excerpted from the book. Schippers served as chief counsel to the House Managers’ impeachment trial. The administration’s pressuring of INS to relax naturalization requirements in order to pad Democrat voting strength would have become part of the articles of impeachment were it not for the arrival of the referral from Independent Counsel Kenneth Starr before Schippers could develop more evidence and interview witnesses.

⁶⁶U.S. Senate, Hearing on Criminal Aliens in the United States, pp. 2-3.

⁶⁷ U.S. General Accounting Office, Criminal Aliens: INS’ Efforts to Identify and Remove Imprisoned Aliens Need to be Improved, Statement of Norman J. Rabkin, Director, Administration of Justice Issues, General Government Division, GAO/T-GGD-97-154, July 15, 1997.

⁶⁸ U.S. General Accounting Office, Criminal Aliens: INS’ Efforts to Remove Imprisoned Aliens Continue to Need Improvement, GAO/GGD-99-3, October 1998; See also statement on this report by Norman J. Rabkin, GAO/T-GGD-99-47, February 25, 1999.

⁶⁹ See U.S. General Accounting Office, Border Patrol Hiring, p. 7.