United States Government Accountability Office

GAO

Report to Congressional Requesters

October 2007

IMMIGRATION
ENFORCEMENT
ICE Could Improve
Controls to Help
Guide Alien Removal
Decision Making

GAO-08-67

October 2007

IMMIGRATION ENFORCEMENT
Accountability Integrity Reliability

Highlights

ICE Could Improve Controls to Help Guide Alien
Removal Decision Making

Highlights of GAO-08-67, a report to
congressional requesters

Why GAO Did This Study

What GAO Found

Officers with U.S. Immigration and
Customs Enforcement (ICE) within
the Department of Homeland
Security (DHS) investigate
violations of immigration laws and
identify aliens who are removable
from the United States. ICE officers
exercise discretion to achieve its
operational goals of removing any
aliens subject to removal while
prioritizing those who pose a threat
to national security or public safety
and safeguarding aliens’ rights in
the removal process. GAO was
asked to examine how ICE ensures
that discretion is used in the most
fair, reasoned, and efficient manner
possible. GAO reviewed (1) when
and how ICE officers and attorneys
exercise discretion and what
internal controls ICE has designed
to (2) guide decision making and
(3) oversee and monitor officers’
decisions. To conduct this work,
GAO reviewed ICE manuals,
memorandums, and removal data,
interviewed ICE officials, and
visited 21 of 75 ICE field offices.

ICE officers exercise discretion throughout the alien apprehension and
removal process, but primarily during the initial phases of the process when
deciding to initiate removals, apprehend aliens, issue removal documents, and
detain aliens. Officers GAO interviewed at ICE field offices said that ICE
policies and procedures limit their discretion when encountering the targets
of their investigations—typically criminal or fugitive aliens, but that they can
exercise more discretion for other aliens they encounter. Officers also said
that they consider humanitarian circumstances, such as sole caregiver
responsibilities or medical reasons, when making these decisions. Attorneys,
who generally enter later in the process, and officers told GAO that once
removal proceedings have begun, discretion is limited to specific
circumstances, such as if the alien is awaiting approval of lawful permanent
resident status.

What GAO Recommends
GAO recommends that ICE update
guidance to include factors officers
should consider when making
apprehension and removal
decisions and establish time frames
for this task; ensure that officers
are provided timely information on
legal developments affecting their
decisions; and evaluate the costs
and alternatives for developing a
mechanism to systematically
analyze officer decision making.
DHS agreed and identified actions
ICE plans to take to implement
GAO’s recommendations.
To view the full product, including the scope
and methodology, click on GAO-08-67.
For more information, contact Richard M.
Stana at (202) 512-8777 or
StanaR@gao.gov.

Consistent with internal control standards, ICE has begun to update and
enhance training curricula to better support officer decision making.
However, ICE has not taken steps to ensure that written guidance designed to
promote the appropriate exercise of discretion during alien apprehension and
removal is comprehensive and up to date and has not established time frames
for updating guidance. For example, field operational manuals have not been
updated to provide information about the appropriate exercise of discretion in
light of a recent expansion of ICE worksite enforcement and fugitive
operations, in which officers are more likely to encounter aliens with
humanitarian issues or who are not targets of investigations. Also, ICE does
not have a mechanism to ensure the timely dissemination of legal
developments to help ensure that officers make decisions in line with the
most recent interpretations of immigration law. As a result, ICE officers are
at risk of taking actions that do not support operational objectives and making
removal decisions that do not reflect the most recent legal developments.
Consistent with internal control standards, ICE relies on supervisory reviews
to ensure that officers exercise appropriate discretion and has instituted an
inspection program designed to ensure that field offices comply with
established policies and procedures. However, ICE lacks other controls to
help monitor performance across the 75 field offices responsible for making
apprehension and removal decisions. A comprehensive mechanism for
reviewing officers’ decision making could provide ICE with meaningful
information to analyze trends to identify areas that may need corrective action
and to identify best practices. ICE officials acknowledged they do not collect
the data necessary for such a mechanism and said doing so may be costly.
Without assessing costs and alternatives, ICE is not in a position to select an
approach that will help identify best practices and areas needing corrective
action.

United States Government Accountability Office

Contents

Letter

1
Results in Brief
Background
ICE Officers Exercise Discretion, Particularly for Aliens with
Humanitarian Issues or Who Are Not Investigation Targets
ICE Has Strengthened Training Programs, but Lacks
Comprehensive Guidance and Consistent Legal Updates to
Inform Decision Making
ICE Has Supervisory Review and an Inspection Program to
Monitor Removal Operations but Lacks a Means to Analyze
Information Specific to the Exercise of Discretion across All
Field Offices
Conclusions
Recommendations for Executive Action
Agency Comments and Our Evaluation

5
10

Appendix I

Objectives, Scope, and Methodology

37

Appendix II

Comments from the Department of Homeland
Security

41

GAO Contact and Staff Acknowledgments

43

Table 1: Decisions Reviewed by Experienced Officers, Supervisors,
and Managers

28

Appendix III

11

17

26
33
35
35

Table

Figures
Figure 1: Fiscal Year 2006 Removal Dispositions Issued by OI Field
Offices
Figure 2: Worksite Enforcement Arrests, Fiscal Year 2002 through
Fiscal Year 2007

Page i

15
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GAO-08-67 Immigration Enforcement

Abbreviations
DACS
DHS
DRO
ICE
INA
NTA
OIG
OI
OPLA
TECS
USCIS

Deportable Alien Control System
Department of Homeland Security
Office of Detention and Removal Operations
Immigration and Customs Enforcement
Immigration and Nationality Act
notice to appear
Office of Inspector General
Office of Investigations
Office of the Principal Legal Advisor
Treasury Enforcement Communications System
U.S. Citizenship and Immigration Services

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GAO-08-67 Immigration Enforcement

United States Government Accountability Office
Washington, DC 20548

October 15, 2007
The Honorable Zoe Lofgren
Chairwoman
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law
Committee on the Judiciary
House of Representatives
The Honorable Sheila Jackson Lee
House of Representatives
Responsibility for the enforcement of immigration laws within the interior
of the United States rests with U.S. Immigration and Customs
Enforcement (ICE), which plans and conducts investigations of persons
and organizations subject to criminal and administrative provisions of the
Immigration and Nationality Act (INA).1 ICE officers investigate violations
of immigration law and are responsible for identifying aliens—that is,
persons who are not citizens or nationals of the United States—who are
removable from the United States.2 Aliens may be subject to removal for a
wide variety of reasons, including entering the United States illegally,
staying longer than their authorized period of admission, being convicted
of certain crimes, or engaging in terrorist activities. Aliens who enter the
United States illegally are subject to removal, as are aliens who violate
immigration law after entering the country legally. According to its
strategic plan, ICE focuses the greater part of its immigration enforcement
efforts on aliens who pose a threat to national security and public safety,
as well as on aliens who have ignored orders to leave the United States.
According to ICE records, in fiscal year 2006, ICE removed about 182,000
aliens from the United States as part of its enforcement efforts.
In recent years, through targeted investigative operations, ICE
components have increased their efforts to enforce immigration laws and
apprehend and remove aliens subject to removal. The ICE Office of
Investigations (OI), which has responsibility for investigating immigration

1

ch. 477, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.)

2

Aliens fall into two categories: (1) nonimmigrant aliens who enter the United States for
leisure or temporary work and (2) immigrant aliens who may be able to obtain lawful
permanent residence in the United States.

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and other crimes related to national security, has increased its emphasis
on worksite enforcement operations. These operations are conducted to
apprehend and remove aliens who are unlawfully employed and impose
sanctions on employers who knowingly employ these aliens. According to
ICE data, the number of worksite enforcement arrests increased from 510
in fiscal year 2002 to 4,383, in fiscal year 2006. Likewise, ICE’s Office of
Detention and Removal Operations (DRO), which has responsibility for
ensuring that all removable aliens depart from the country, has increased
its emphasis on fugitive operations, which are enforcement operations
designed to locate, apprehend, and remove aliens from the country who
have not complied with orders of removal issued by an immigration
judge—known as fugitive aliens.3 Over the last 2 fiscal years, the number
of fugitive arrests conducted by DRO increased from 7,958 in fiscal year
2005 to 15,467 in fiscal year 2006. In carrying out these operations and
processing aliens for removal, OI and DRO officers are to work with
attorneys from ICE’s Office of the Principal Legal Advisor (OPLA), which
is responsible for providing legal advice, training, and services to support
the ICE mission and for defending the interests of the United States in the
administrative and federal courts. In fiscal year 2006, OPLA handled
approximately 324,000 proceedings in immigration courts.
During the process of enforcing immigration law, there are a number of
decisions that ICE officers and attorneys must make, taking into account
all facts and circumstances of each case, about the apprehension and
disposition of aliens who are subject to removal. Specifically, ICE officers
exercise discretion when they decide whom to stop, question, and arrest;
how to initiate removal; whether to grant voluntary departure (whereby
aliens agree to waive their rights to a hearing and are escorted out of the
United States to their home countries by ICE officers);4 and whether to

3
In addition, DRO has a Criminal Alien Program, which is designed to identify removable
foreign nationals currently serving sentences in federal, state, or local prisons—as well as
individuals not in custody who are on probation or parole—with the goal of removing them
from the country at the end of their sentence, rather than releasing them back into the U.S.
population where they might commit further crimes.
4

Aliens who agree to voluntary departure can be legally admitted to the United States in the
future without penalty. The authority for voluntary departure is outlined in section 240B(a)
of the Immigration and Nationality Act (INA) (8 U.S.C. § 1229c(a)) and its implementing
regulations (8 C.F.R. § 240.25). OI and DRO field operational manuals also include guidance
on voluntary departure and ICE officers told us that they can grant voluntary departure. We
noted that ICE manuals and field officers use the terms “voluntary departure” and
“voluntary return” interchangeably. In this report, we use the term “voluntary departure,”
rather than “voluntary return” when discussing this removal option.

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detain an alien in custody. For example, ICE officers might consider
alternative ways to initiate removal proceedings—other than immediate
apprehension and detention—when they encounter aliens who are sole
caretakers for minor children or who are ill and are undergoing medical
treatment. In other circumstances, officers might decide not to question
and arrest some aliens they suspect are subject to removal in the interest
of pursuing other law enforcement efforts that provide a greater value to
the nation—such as those involving known criminals or threats to national
security. Also, once an ICE officer has made a decision to pursue removal,
ICE attorneys exercise discretion when they decide whether and how to
settle or dismiss a removal proceeding or to appeal a decision rendered by
an immigration judge.
All of these decisions are made within the context of the number of aliens
subject to removal from the United States (estimated to be about 12
million in 2006); ICE resources available to investigate, apprehend, and
remove aliens subject to removal; and the circumstances surrounding each
case. One of ICE’s operational objectives is to apprehend and remove
aliens who are subject to removal—with a priority on those aliens who
pose a threat to national security and public safety—while safeguarding
aliens’ rights in the removal process. Nonetheless, given the large number
of aliens in the country who are subject to removal, it is virtually
impossible for ICE officers to investigate and arrest every potentially
removable alien encountered through the course of an enforcement effort.
ICE headquarters officials told us that data are not collected about
potentially removable aliens whom its officers may encounter and against
whom officers do not take actions that may result in removal proceedings.
For this reason, the data provided in this report focus primarily on aliens
for whom removal proceedings have been initiated.
Because of the important role that discretion plays in the alien
apprehension and removal process, you asked us to examine how ICE
ensures that discretion is used in the most fair, reasoned, and efficient
manner possible. Along these lines, we examined whether ICE has
designed internal controls to guide and monitor officers’ exercise of
discretion when making alien apprehension and removal decisions,

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consistent with internal control standards for the federal government.5
Specifically, this review addresses the following three questions:
1. When and how do ICE officers and attorneys exercise discretion
during the alien apprehension and removal process?
2. What internal controls has ICE designed to guide officer decision
making to enhance its assurance that the exercise of discretion
supports its operational objectives?
3. What internal controls has ICE designed to oversee and monitor
officer decision making during the alien apprehension and removal
process to enhance ICE’s assurance that the exercise of discretion
supports its operational objectives?
To address these questions, we reviewed relevant laws and regulations as
well as applicable policies, memorandums, field operational manuals, and
training materials developed by OI, DRO, and OPLA headquarters offices.
We also examined available data on alien apprehensions for worksite
enforcement and fugitive operations to understand decision outcomes
resulting from alien apprehension enforcement operations. We performed
procedures to test the data’s reliability and we concluded that the data
were reliable for the purpose of our review. We also met with officials at
OI, DRO, and OPLA in Washington, D.C.; and interviewed ICE officers,
supervisors, and managers in 14 ICE field offices—seven OI and seven
DRO field offices—located in seven cities throughout the United States:
Chicago, Detroit, Los Angeles, New York, Philadelphia, Phoenix, and San
Diego. In addition, we interviewed ICE attorneys, supervisors, and
managers in seven Chief Counsel Offices (which serve as OPLA’s field
offices) at these same locations. We asked both officers and attorneys
about when and how they have exercised and are expected to exercise
discretion in the course of their duties related to alien removal.6 We
selected these locations considering field office size, ICE data on alien
apprehensions, and geographic dispersion. As we did not select probability

5
GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1
(Washington, D.C.: November 1999). Internal control is an integral component of an
organization’s management that provides reasonable assurance that the following
objectives are being achieved: effectiveness and efficiency of operations, reliability of
financial reporting, and compliance with applicable laws and regulations.
6

Federal regulations do not authorize ICE attorneys to initiate formal removal proceedings
(8 C.F.R § 239.1).

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GAO-08-67 Immigration Enforcement

samples of field offices to visit and ICE officers and attorneys to interview,
the results of these interviews may not represent the views of ICE officers
and attorneys nationwide.
We also reviewed field operational manuals, headquarters policy
memorandums, locally developed field guidance, and training materials.
We asked headquarters officials and officers and attorneys in the field
about the guidance and information that would help to inform alien
apprehension and removal decisions available to officers, attorneys, and
their supervisors and managers. At headquarters and the various field
locations, we also examined available documentation on internal controls
in place to guide supervisory and managerial oversight and monitoring of
alien apprehension and removal decisions, and inquired about procedures
and practices for assessing the exercise of discretion and outcomes
associated with alien apprehension and removal decisions. We compared
the internal controls in place with the standards for internal control to
determine whether ICE’s internal controls are designed to provide
assurance that its officers and attorneys are best equipped to consistently
exercise discretion in support of its operational objectives.7 Appendix I
discusses the scope of our work and the methodology in greater detail.
We conducted our work for this report from August 2006 through
September 2007 in accordance with generally accepted government
auditing standards.

Results in Brief

At the 14 ICE OI and DRO field offices we visited, policies and procedures
allow ICE officers to exercise discretion at multiple points throughout the
alien removal process—encountering aliens, apprehending aliens, issuing
removal charges, detaining removable aliens, pursuing removal
proceedings in immigration court, and executing a final removal order.
The initial phases of the alien removal process involve the most
discretion—specifically, decisions about whether to initiate removal
action, apprehend aliens, issue removal documents, and detain aliens.
Officers typically encounter two categories of aliens who are subject to
removal: (1) aliens who are the target of an investigation (e.g., the subject
of a fugitive operation designed to locate and remove aliens who have
ignored prior removal orders) and (2) aliens who are not the target of an
investigation but whom officers encounter through the course of an

7

GAO/AIMD-00-21.3.1.

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operation. Officers told us that when they encounter aliens who are
fugitives, criminals, or other investigation targets, their ability to exercise
discretion is limited by clearly prescribed policies8 and procedures
governing the handling of targeted aliens—with the exception of
extenuating circumstances such as serious illnesses. However, officers at
all seven DRO and seven OI field offices we visited told us that they do
exercise discretion when determining how to process aliens who are not
fugitives or criminals and are not investigation targets, based on
humanitarian circumstances, such as medical issues or being the sole
caregiver for minor children. In such circumstances, officers can, based on
the circumstances of the case, decide to apprehend an alien and transport
the alien to an ICE facility to initiate the removal process, or the officer
could exercise an alternative method to initiate this process including
issuing a notice to appear (NTA) by mail or scheduling an appointment for
the alien to report at an ICE facility at a later date. Officers told us that
they will, in limited circumstances, issue an NTA by mail or schedule an
appointment as an accommodation to aliens who cannot be physically
present at a facility due to humanitarian circumstances. Officers told us
that once they decide how to initiate the removal process (e.g.,
apprehending an alien or scheduling an appointment for later processing),
they have some discretion in determining which removal option to employ,
including whether to initiate formal removal proceedings, which typically
result in a hearing before an immigration judge, or to grant voluntary
departure in lieu of initiating formal removal proceedings. Once a charge
is issued, officers also have discretion, with the exception of certain
mandatory detention requirements,9 to decide whether to detain an alien,
based on the circumstances of the case and taking account of both
humanitarian and resource issues. As aliens move further along the
apprehension and removal process, there are fewer circumstances that
require officers and attorneys to exercise discretion, as discretionary
options are limited by fixed policies and guidelines.10 Chief Counsel Office
attorneys have limited discretion to terminate removal proceedings and
can do so if, for example, an alien is eligible for an immigration benefit,
such as lawful permanent residence. DRO officers, who are responsible for

8

These policies refer to mandatory restrictions outlined in the INA and a Department of
Homeland Security memorandum.
9

These mandatory detention requirements are outlined in the INA and in an October 2004
Department of Homeland Security memorandum on detention priorities.

10

These policies and guidelines are outlined in the DRO field operational manual and the
INA and implementing regulations.

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executing final removal orders, can postpone an alien’s removal date—by
granting a stay or a deferred action—if circumstances merit such actions,
but they rarely exercise these options.
ICE’s OI and DRO officers are to rely on their field operational manuals,
guidance provided by supervisors, and training to guide their decision
making about alien apprehensions and removals. Consistent with internal
control standards, which call for training to be aimed at developing and
retaining employee skills to meet changes in organizational needs,11 ICE
has taken steps to review and update segments of its training curricula
that may help support officer decision making for alien apprehension and
removal. For example, ICE has instituted a specific worksite enforcement
training module for OI agents and Spanish language training for newly
hired DRO officers. Internal control standards also call for agencies to
develop and document detailed policies, procedures and practices to
ensure that they are an integral part of operations. ICE headquarters
currently has three sources to document established policies, procedures,
and practices that affect the exercise of discretion in the alien removal
process: (1) OI and DRO field operational manuals; (2) DHS and ICE
memorandums; and (3) an ICE worksite enforcement guidebook.
However, the guidance on the exercise of discretion in the alien removal
process is not comprehensive and up to date. Specifically, the guidance
does not serve to fully support officer decision making in cases involving
humanitarian issues and aliens who are not primary targets of ICE
investigations. First, despite a sharp increase in ICE’s worksite and
fugitive operations in recent years, the OI and DRO operational manuals,
which are largely unchanged from before the creation of the Department
of Homeland Security (DHS) and ICE’s placement in it, do not reflect ICE’s
expanded worksite and fugitive operations, nor do they clearly and
comprehensively address humanitarian and other issues associated with
these operations. ICE has begun efforts to update these manuals, but it
does not have time frames for completing these updates and it is unclear
whether the revisions would include guidance on the exercise of
discretion. Second, although the various ICE organizational units with
removal responsibilities have issued guidance in the form of their own
memorandums to inform the exercise of discretion around humanitarian
issues, these memorandums also do not comprehensively address the
various circumstances the officers and attorneys may encounter.
Moreover, even though some memorandums are potentially informative

11

GAO/AIMD-00-21.3.1.

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for multiple ICE units, they do not clearly apply outside the unit that
created them. Third, although ICE plans to regularly update its worksite
enforcement guidebook based on lessons learned from past worksite
operations, the current guidebook that ICE provided us in August 2007
does not instruct officers on how to identify and process aliens with
humanitarian issues in large worksite operations or otherwise. The lack of
comprehensive and up to date guidance puts ICE officers at risk of taking
actions that do not support the agency’s operational objectives. This risk is
greatest in larger scale operations, including worksite enforcement and
fugitive operations, where officers may encounter numerous aliens with
humanitarian issues and aliens who are not investigation targets. In
addition to the guidance outlined in field operational manuals,
memorandums, and the guidebook, ICE officers also require timely
information regarding legal developments—such as court decisions
modifying existing interpretations of immigration laws—to guide officers’
decision making. Regional ICE Chief Counsel Offices are responsible for
disseminating this information. During our field visits, 3 of the 14 OI and
DRO offices reported receiving the necessary legal information, while
others said this has not happened. ICE does not have a formal mechanism
to help ensure consistent dissemination of this information across field
offices; rather, each Chief Counsel Office independently decides when and
what information about legal developments is disseminated. These legal
developments affect officers’ decisions, and without current information,
officers are at risk of making incorrect removal disposition decisions that
could result in the termination of a removal case.
ICE has two control mechanisms in place to monitor its removal
operations—established supervisory review practices and procedures and
an inspection program. However, ICE does not have a mechanism to allow
it to analyze information specific to the exercise of discretion across all
units. Internal control standards advise agencies to design internal
controls to ensure that ongoing monitoring occurs in the course of normal
operations.12 This monitoring includes regular management and
supervisory activities, comparisons, reconciliations, and other actions
people take in performing their duties. Consistent with internal control
standards that call for agencies to ensure that supervision is performed
continuously in agency operations, ICE relies on supervisory oversight as
a key management control to oversee officer decision making and to
ensure that discretion is exercised appropriately with regard to alien

12

GAO/AIMD-00-21.3.1.

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apprehensions and removals. Officials also told us that operations are
typically conducted in team environments and that officers rely on the
teams’ collective judgment in determining how to exercise discretion for
these aliens. Headquarters officials told us that supervisors at both DRO
and OI field offices are required to sign removal dispositions, including
NTAs, voluntary departures, and other removal dispositions.13 In addition,
officials at all 14 DRO and OI field offices we visited told us that
supervisors are responsible for reviewing instances when officers exercise
discretion, such as when encountering aliens with humanitarian factors.
ICE has also recently instituted an inspection program for its OI field
offices to help provide assurance that its operations are in line with its
operational objectives, and plans to institute a similar program for DRO
offices. However, ICE lacks other control elements to help it monitor
program performance across the 75 OI, DRO, and Chief Counsel field
offices. Specifically, internal control standards recommend that managers
compare trends in actual performance to expected results throughout the
organization in order to identify any areas that may require corrective
action to help ensure that operations continually support operational
objectives. Given that 75 field offices are involved in the alien
apprehension and removal process and that oversight of these offices lies
with three ICE units, a comprehensive mechanism for reviewing officers’
decision making could provide ICE with meaningful information to
promote the appropriate use of discretion, identify best practices, and
analyze any significant differences across field offices in order to take
appropriate action. ICE officials told us that modifying existing databases
to collect the details of discretionary decisions made by officers needed to
monitor performance across all offices could be costly. However, having
information on the use of discretion could provide ICE senior managers
enhanced assurance that officers and supervisors across field offices are
making decisions that reflect the agency’s operational objectives regarding
alien apprehension and removals. Moreover, even though ICE has ongoing
and planned updates to its information systems, it has not evaluated the
costs and alternatives for creating a mechanism capable of providing ICE
with usable information that it can analyze to identify trends in the
exercise of discretion. Without assessing the costs and alternatives for
creating such a mechanism, ICE is not in a good position to select and
implement an approach that will provide ICE assurance that it can identify
any best practices that should be reinforced or areas that might require

13

Supervisory special agents and supervisory detention and deportation officers are granted
the authority to issue and cancel NTAs under federal regulations.

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corrective actions—by, for example, modifying policies, procedures, or
training.
To enhance ICE’s ability to inform and monitor its officers’ use of
discretion in alien apprehensions and removals, we are recommending
that the Secretary of Homeland Security direct the Assistant Secretary of
ICE to take the following three actions: (1) develop time frames for
updating existing policies, guidelines, and procedures for alien
apprehension and removals and include factors that should be considered
when officers make apprehension, charging, and detention determinations
for aliens with humanitarian issues; (2) develop a mechanism to help
ensure that officers are consistently provided with updates regarding legal
developments; and (3) evaluate the costs and alternatives for developing a
reporting mechanism by which ICE senior managers can analyze trends in
the use of discretion across ICE’s field offices to help identify areas that
may require management actions—such as changes to guidance,
procedures, and training—to address problems or support development of
best practices.
DHS agreed with our recommendations and outlined actions planned to
address them. These plans entail reevaluating and republishing all existing
policies, guidelines, and procedures pertaining to the exercise of
discretion during calendar year 2008; developing best practices to ensure
the latest legal updates are disseminated to agents and officers through
each Chief Counsel’s Office; and, by December 1, 2007, initiating an
evaluation of the costs and alternatives for developing a mechanism by
which to analyze trends in the use of discretion.

Background

Estimates of the size of the alien population subject to removal vary. A
report from the Pew Research Center estimated the population of
unauthorized aliens in the United States to be approximately 12 million as
of March 2006.14 According to DHS, the population of aliens subject to
removal from the United States has grown in recent years. DHS’s Office of
Immigration Statistics estimated that the population of aliens subject to
removal has increased by half a million from January 2005 to January 2006.
Additionally, DHS has estimated that the removable alien population grew

14

Pew Hispanic Center, The Size and Characteristics of the Unauthorized Migrant
Population in the U.S. (Washington D.C.) March 7, 2006.

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by 24 percent from 8.5 million in January of 2000 to 10.5 million in January
of 2005.
Aliens who are in violation of immigration laws are subject to removal
from the United States. Over 100 violations of immigration law can serve
as the basis for removal from the United States, including, among other
things, criminal activity, health reasons (such as having a communicable
disease), previous removal from the United States, and lack of proper
documentation. ICE investigations resulted in 102,034 apprehensions, or
about 8 percent of the approximately 1.3 million DHS apprehensions in
2005. Four main categories constituted the basis for aliens removed by
DHS in 2005: (1) aliens entering without inspection, by, for example,
illegally crossing the border where there is no formal U.S. port of entry; (2)
aliens attempting to enter the United States without proper documents or
through fraud, at U.S. ports of entry; (3) aliens with criminal convictions
or believed to have engaged in certain criminal activities, such as terrorist
activities or drug trafficking; and (4) aliens who are in violation of their
terms of entry (e.g., expired visa).

ICE Officers Exercise
Discretion,
Particularly for Aliens
with Humanitarian
Issues or Who Are
Not Investigation
Targets

Our review of ICE policies and procedures, along with interviews at ICE
field offices, showed that officers exercise discretion throughout various
phases of the alien apprehension and removal process, but the initial
phases of the process—initiating removals, apprehending aliens, issuing
removal documents and detaining aliens—involve the most discretion.
Officers in OI and DRO field offices told us that they exercise discretion
for aliens with humanitarian issues and aliens who are not investigation
targets on a case-by-case basis with guidance and approval from
supervisors. Officers told us they typically encounter (1) aliens who are
the target of an investigation and (2) aliens who are not the target of an
investigation but who are encountered through the course of an operation
and are subject to removal. While officers told us that discretion with
regard to aliens who are fugitives, criminals, and other investigation
targets is limited by clearly prescribed policies and procedures, they told
us that they have more latitude to exercise discretion when they encounter
aliens who are not fugitives or criminals and are not targets of ICE
investigations, particularly when encountering aliens with humanitarian
issues.

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Most Discretion Is
Exercised in the Initial
Phases of the
Apprehension and
Removal Process

The alien apprehension and removal process encompasses six phases: (1)
initial encounter, (2) apprehension, (3) charging, (4) detention, (5)
removal proceedings, and (6) final removal. Our review of federal
regulations, ICE policies, guidance, and interviews showed the parts of the
removal process from the time officers encounter aliens as part of an
operation to the time they determine whether to detain an alien involve
the most discretion. During removal proceedings and final removal, ICE
attorneys and DRO officers can exercise discretion only in clearly
delineated situations prescribed by ICE policies and statutory and
regulatory requirements.
Officers told us that during the initial phases of the apprehension and
removal process, they encounter situations that require them to pursue
alternate ways to initiate removals, in lieu of apprehending aliens. During
encounters with aliens, officers told us that they decide how to exercise
discretion for aliens on a case-by-case basis with input from supervisors or
experienced officers. Specifically, officers told us that they exercise
discretion when they encounter aliens who (1) present humanitarian
concerns such as medical issues or being the sole caregiver for minor
children or (2) are not the primary target of their investigations.

Initial Encounter Phase

DRO and OI officers told us that their primary goal is to initiate removal
proceedings for any alien they encounter who is subject to removal.
However, officers told us that in some instances, they might decide not to
pursue any action against an alien who they suspect to be removable.
Officers at two OI and one DRO field office told us that, in some instances,
they are unable to initiate removal action against every alien they
encounter during the course of an operation. Officers noted that several
factors—such as the availability of detention space, travel time to an
alien’s location, and competing enforcement priorities—affect their
decisions to initiate removal action against an alien. Officers at one of the
seven OI field offices we visited also told us that because of limited
resources they have to make trade-offs between dedicating resources to
aliens who pose a threat to public safety and those who do not—that is,
noncriminal aliens—which in some instances result in decisions to not
initiate removal action against noncriminal aliens.

Apprehension Phase

Our review of DHS and ICE guidance showed that officers’ ability to
exercise discretion is limited for aliens who are investigation targets, such
as criminal aliens and fugitive aliens who have ignored a final removal
order. Discretion for apprehending these aliens is limited due to clearly
prescribed policies, and procedures—such as requirements under the INA
to detain terrorists or certain criminals—governing the handling of these

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aliens.15 By contrast, officers at all seven DRO and seven OI field offices
we visited told us that they have discretion to process and apprehend
aliens who are not investigation targets or aliens who present
humanitarian circumstances. In such circumstances, officers told us that
they can exercise discretion by deciding to (1) apprehend an alien and
transport the alien to an ICE facility for processing, (2) issue the alien an
NTA by mail, or (3) schedule an appointment for the alien to be processed
at an ICE facility at a later date.
For example, in looking for a criminal alien who is the target of an
investigation, a fugitive operations team may encounter a friend or relative
of the targeted alien—who is also removable—but not the primary target
of an ICE investigation. If the friend or relative has a humanitarian
circumstance, like being the primary caregiver for small children, the
officers can decide to not apprehend the friend or relative and opt for
processing at a later time after reviewing the circumstances of the case
and determining that no other child care option is available at the time. In
such instances, ICE headquarters officials told us that officers are to
confirm child welfare claims made by an alien and determine whether
other child care arrangements can be made. Headquarters officials also
told us that aliens do not always divulge that they are the sole caretakers
of children but explained that if ICE agents became aware of an alien’s
child welfare responsibility, agents must take steps to ensure that the child
or children are not left unattended.
In addition, officers at two OI offices and one DRO office told us that in
some instances, such as when aliens are sole caretakers for minor children
or are ill, they will schedule appointments for aliens who are not
investigation targets to process them at a later date. Officers at five of the
seven OI field offices and two of the seven DRO offices we visited also told
us that they will mail an NTA—as an alternative to apprehension—to
aliens who present humanitarian issues such as medical conditions or
child welfare issues. At another OI field office, officers told us that when
determining whether to apprehend aliens or use an alternative to

15
Requirements for detaining aliens are outlined in the INA and DHS memorandums. For
example, the INA stipulates that aggravated felons, aliens who are threats to national
security, and categories of fugitive aliens must be detained by ICE officers if apprehended.
In limited circumstances, such as when necessary to protect aliens who are cooperating
with a major criminal investigation, the INA authorizes the release from custody of certain
criminal aliens who do not pose a threat to public safety and are likely to appear for
proceedings.

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apprehension—for aliens who are not investigation targets—they also
consider manpower availability.

Charging Phase

Our review of ICE guidance and procedures showed that most of an
officer’s discretion in the charging phase relates to the decision to grant
voluntary departure. Officers told us that when not statutorily prohibited
from granting voluntary departure, they have some discretion in
determining whether to issue an NTA and thus initiate formal removal
proceedings or grant voluntary departure in lieu of initiating formal
removal proceedings, which typically results in a hearing before an
immigration judge. Officers told us that they may consider factors like
humanitarian concerns and ICE priorities when exercising discretion to
grant voluntary departure.
On the basis of our review of ICE data, we noted significant variation in
the use of voluntary departure across field offices.16 Our review of OI
apprehension data also showed that three OI field offices near the U.S.
southwestern border initiated a relatively higher number of voluntary
departures (equal or greater than the number of NTAs issued). ICE
headquarters officials noted that officers at field offices near the U.S.
southwestern border employ voluntary departure generally because of
their proximity to the U.S.-Mexico border, which enables them to easily
transport Mexican nationals to Mexico. Figure 1 illustrates the number of
NTAs and voluntary departure issued by OI field offices.

16

The INA prohibits officers from granting voluntary departure to aggravated felons and
aliens engaged or likely to engage in terrorist activities.

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Figure 1: Fiscal Year 2006 Removal Dispositions Issued by OI Field Offices
Number issued
10,000
9,000
8,000
7,000
6,000
5,000
4,000
3,000
2,000
1,000

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0

OI field office location
Warrant of arrest/NTA
NTA
Voluntary departure
Source: GAO analysis of OI data.

Note: ICE officers employ other removal dispositions, such as those employed to remove criminal
aliens or fugitive aliens who have failed to depart the United States. These removal dispositions and
others are not shown in this graphic because NTAs and voluntary departures constitute the largest
number of removal options employed by ICE officers.

Detention Phase

Our review of procedures also showed that if detention is not mandated by
the INA,17 officers have discretion to determine if an alien will be detained
or released pending the alien’s immigration court hearing. When making
this determination, ICE guidance instructs officers to consider a number
of factors, such as humanitarian issues, flight risk, availability of detention
space, and whether the alien is a threat to the community. Officers at two
DRO field offices we visited told us that they exercise discretion to release
aliens from custody if appropriate facilities are not available or if

17

Examples of mandated detention cases include aliens who are aggravated felons and
terrorists.

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detention space is needed for aliens who pose a greater threat to public
safety. At one OI field office, officers provided an example of an operation
where they released two women and two children on their own
recognizance because of the lack of appropriate detention space to house
women and children. Officers at another DRO field office also noted that
detaining women and juveniles can be challenging because of limited
space to accommodate them. Detention determinations made by officers
can be reexamined by immigration judges upon an alien’s request.

Officers and Attorneys
Have Less Discretion Once
Removal Proceedings
Have Been Initiated

Our review of ICE policy and DRO’s field operational manual showed that
ICE attorneys—who generally enter the process once proceedings have
begun—and officers have less discretion in the later phases of the
apprehension and removal process. Once an alien’s case arrives at the
removal proceedings phase and is being reviewed by ICE attorneys, we
found that the use of discretion at this stage is limited by clear policy and
guidelines. Our review of ICE policy and interviews with attorneys at 5 of
7 Chief Counsel Offices showed that most aliens have few alternatives to
appearing before immigration court after entering the removal proceeding
phase. Circumstances in which ICE might not pursue proceedings include
a legally insufficient NTA; an alien’s eligibility for an immigration benefit,
such as lawful permanent residency; and an alien’s serving as a witness in
a criminal investigation or prosecution. In these specific cases, ICE
attorneys can exercise discretion not to pursue proceedings by asking the
immigration court to terminate removal proceedings if the NTA has been
filed with the court. ICE OPLA guidance also permits ICE attorneys to take
steps to resolve a case in immigration court for purposes of judicial
economy, efficiency of process, or to promote justice. Examples in the
guidance include cases involving sympathetic humanitarian circumstances
like an alien with a U.S. citizen child with a serious medical condition or
disability, or an alien or close family member who is undergoing treatment
for a potentially life-threatening disease.
ICE policy states that DRO may exercise discretion and grant some form
of relief to the alien, such as a stay of removal and deferred action at the
final phase of the process. A stay of removal is specifically authorized by
statute and constitutes a decision that removal of an alien should not
immediately proceed. Deferred action gives a case a lower removal
priority, but is not an entitlement for the alien to remain in the United
States. While some aliens could be granted a stay or deferred action by
DRO field office managers, DRO officers told us that DRO seeks to
execute removal orders in the vast majority of cases. DRO officers in field
offices told us that they could recall only a handful of cases when DRO

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officers did not execute a removal order after it was issued by an
immigration judge. Supervisors in one DRO field office recalled a case in
which a stay was granted to an aggravated felon who had a serious
medical condition.

ICE Has Strengthened
Training Programs,
but Lacks
Comprehensive
Guidance and
Consistent Legal
Updates to Inform
Decision Making

Officers at DRO and OI field offices who are responsible for apprehending,
charging, and detaining removable aliens are to rely on formal and on-thejob training, guidance provided by supervisors, and guidance provided in
field operational manuals to inform their decision making regarding alien
apprehensions and removals. Consistent with internal control standards,
which call for training to be aimed at developing and retaining employee
skill levels to achieve changing organizational needs, ICE has updated
some of the training it offers to officers responsible for making alien
apprehension and removal decisions. 18 Some of the updated training
includes, among other things, implementing worksite enforcement
training, supervisory training for OI supervisors, and Spanish language
training for newly hired DRO officers. These updates have the potential to
provide critical information to officers and supervisors to better support
their decision making. However, ICE guidance, including ICE’s field
operational manuals and ICE memorandums, on the exercise of discretion
during the alien apprehension and removal process does not serve to fully
support officer decision making in cases involving humanitarian issues
and aliens who are not primary targets of ICE investigations. For example,
ICE has not completed efforts to provide officers with complete and up to
date guidance to reflect expanded worksite and fugitive operations
enforcement efforts. ICE headquarters officials told us that they do not
have a time frame for completing efforts to update available guidance in
field operational manuals. In addition, although Chief Counsel Offices
provide information regarding legal developments to DRO and OI officers
to guide their decision making, ICE does not have a mechanism to ensure
that such information is disseminated consistently to officers across field
offices. The lack of comprehensive guidance and a mechanism by which to
help ensure that officers receive consistent information regarding legal
developments puts ICE officers at risk of taking actions that are not
appropriate exercises of discretion and do not support the agency’s
operational objectives.

18

GAO/AIMD-00-21.3.1.

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ICE Has Instituted Training
for Supervisors and
Specialized Operations and
Has Other Training
Initiatives in Early Phases
of Development

Internal control standards state that training should be aimed at
developing and retaining employee skill levels to meet changing
organizational needs. Officers at DRO and OI field offices who are
responsible for apprehending, charging, and detaining removable aliens
rely on formal and on-the-job training and guidance provided by
supervisors to inform their decision making regarding alien apprehensions
and removals. ICE has recently begun undertaking reviews and revisions
of training that are consistent with these internal controls by updating and
revising existing training curricula and implementing new training
curricula for OI and DRO officers to provide critical information to
officers and supervisors to better inform their decision making. These
actions are important steps for providing officers with relevant
information to inform their decision making. In early 2007, OI instituted a
2-week worksite enforcement training course geared toward informing
ICE officers regarding criminal investigation techniques and procedures,
which also provides information on the exercise of discretion regarding
aliens who present humanitarian issues. OI headquarters officials
identified worksite enforcement as a training need, since these operations
are expanding, and an OI headquarters official told us that most OI officers
had not participated in major worksite enforcement operations since 1998
and that many of the officers who participate are temporarily assigned to
the operation from other duties or locations. Because of expanded
worksite enforcement operations, officials told us that OI instituted
worksite enforcement training, which will be offered to 100 OI officers per
year. Headquarters officials told us that resource constraints preclude ICE
from offering worksite enforcement training to all officers.
In addition to worksite enforcement training, OI officials told us that they
are also in the process of instituting additional changes to training
curricula that could better support officer decision making:
•

OI officials told us that they developed a 3-week training course for
first-line supervisors, with 1 week of the course designed to provide
information on legal issues pertaining to removal dispositions, such as
instances when to issue an NTA or grant voluntary departure.

•

An OI official told us that OI is developing a 3-week refresher training
course for experienced OI officers, to reinforce these officers’
knowledge of alien apprehension and removal operations. According to
OI’s chief of training, this course should be implemented by the second
quarter of fiscal year 2008.

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•

OI officials have revised an “On the Job” training manual that tracks
tasks that new officers must complete in their first 18 months on the
job. According to an OI training official, by completing the tasks
outlined in the manual, officers should have a full understanding of the
requirements for processing aliens, which include exercising discretion
throughout the apprehension and removal process (e.g., whether to
immediately apprehend the alien or to mail an NTA).

Like OI officials, DRO officials have also taken steps to strengthen training
for DRO officers. In April 2007, DRO added a Spanish language course to
its basic training curriculum. According to DRO headquarters training
officials, this training will better equip officers to communicate with aliens
and thus help ensure that officers make appropriate decisions about how
to exercise discretion for aliens. In addition, DRO is developing a 3-week
refresher training for experienced DRO officers designed to provide
officers with skills, tactics and legal updates pertaining to alien
apprehension and removal operations and plans to implement this course
in October 2008. DRO headquarters officials also told us that they will
institute a 2-year “On the Job” training program in September 2007.
According to officials, this program is to provide newly appointed officers
with additional training on immigration laws, competencies, and tasks
related to their jobs. While the recent changes to the OI and DRO training
curricula are positive steps in better aligning ICE training with operations,
it is too soon for us to assess the effectiveness of these efforts.

Operational Guidance
Lacks Comprehensive
Information to Inform
Decision Making and Has
Not Been Updated to Fully
Reflect Current Operations

According to internal control standards, management is responsible for
developing and documenting the detailed policies, procedures, and
practices to ensure that they are an integral part of operations. DRO and
OI officers generally rely on (1) OI and DRO field operational manuals; (2)
DHS and ICE memorandums; and (3) an OI-developed worksite
enforcement operational guidebook for guidance and policies to perform
their duties, including making decisions regarding alien apprehensions and
removals. However, ICE guidance to instruct officer decision making in
cases involving humanitarian issues and aliens who are not primary targets
of ICE investigations during the alien apprehension and removal process is
not comprehensive and has not been updated by headquarters officials to
reflect ICE’s expanded worksite and fugitive operations. In addition,
although officers exercise discretion when deciding whether or not to take
action to initiate the removal process, ICE does not have guidance on
officers’ exercise of discretion on who to stop, question, and arrest when
initiating the removal process. Without comprehensive policies,
procedures, and practices, ICE lacks assurance that management

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directives will be conducted as intended and that ICE officers have the
appropriate tools to fully inform their exercise of discretion.
ICE’s OI and DRO field operational manuals were created by ICE’s legacy
agency—Immigration and Naturalization Service (INS), which was
reorganized under the newly formed Department of Homeland Security in
March of 2003. Both of these manuals, which are largely unchanged from
the guidance developed and employed by INS, are currently undergoing
revisions. Our review of these manuals shows that they do not offer
comprehensive and updated guidance to instruct officers on the exercise
of discretion in cases involving aliens with humanitarian issues and aliens
who are not targets of ICE investigations. For example, OI’s field
operational manual offers some guidance on options for addressing aliens
with caregiver issues who are encountered during worksite operations,
such as ensuring that an alien’s dependents receive timely and appropriate
care. However, the guidance does not include, for example, provisions for
aliens with medical conditions. OI headquarters officials told us that they
are in the process of revising OI’s field operational manual but have not
yet updated the sections corresponding to alien apprehensions and
removals.
With respect to DRO’s field operational manual, some guidance is
available to help officers decide whether to detain aliens pending their
immigration hearings, but it does not clarify how officers should exercise
discretion to determine detention for nonmandatory detention cases,
especially for aliens with humanitarian issues or aliens who are not targets
of ICE investigations. DRO headquarters officials told us that they are
revising a chapter in the manual on fugitive operations but the revisions
are not yet available to DRO officers in the field. For both the OI manual
and the fugitive operations chapter in the DRO manual, headquarters
officials told us that they did not yet know if the revisions would include
guidance on the use of discretion for aliens with humanitarian issues or
aliens who are not the targets of ICE investigations. Moreover, OI and
DRO officials could not provide a time frame for when the revisions will
be completed.
The various ICE organizational units with removal responsibilities have
issued some guidance to help guide their own officers’ and attorneys’
exercise of discretion for aliens with humanitarian issues, but the
guidance either is not comprehensive with regard to the various
circumstances the officers and attorneys may encounter or does not apply
to officers who have the authority to initiate removal proceedings. A
memo issued in 2006 by DRO to its field offices, outlines severe medical

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illnesses19 as a basis for exercising discretion when deciding whether to
detain aliens who are not subject to mandatory detention.20 While this
memo provides important guidance for exercising discretion during the
detention phase for aliens with medical issues, it does not address child
welfare and primary caretaker issues.21 In addition, a 2005 memo issued by
OPLA permits ICE attorneys to take steps not to pursue proceedings by
asking the immigration court to terminate removal proceedings if the NTA
has been filed with the court. Examples in the guidance include cases
involving sympathetic humanitarian circumstances like an alien with a
U.S. citizen child with a serious medical condition or disability, or an alien
or close family member who is undergoing treatment for a potentially lifethreatening disease. However, this memo is directed at Chief Counsel
attorneys, who do not have the authority to initiate removal proceedings.
Instead, only supervisory DRO and OI officers can initiate removals, and
as a result the memo is not clearly applicable to them.
In addition, DHS, OI, DRO, and OPLA have also issued their own separate
memorandums that guide officers’ actions at different points of the
apprehension and removal process. Each memorandum is generally
directed to officers and attorneys under the respective ICE unit that issues
it, resulting in a number of memos distributed via a number of different
mechanisms within each ICE unit. These memorandums do not offer
comprehensive guidance on exercising discretion for aliens with
humanitarian circumstances or aliens who are not the primary targets of
ICE investigations. For example, OI issued a memo in May 2006, which
instructs officers to schedule appointments as a last resort for juvenile
aliens, elderly aliens, or aliens with health conditions to be processed at a
later date, rather than apprehend these aliens at the time of the encounter
or mail them an NTA. This guidance addresses important humanitarian
issues, but it is only directed to ICE officers who are responding to calls
from local law enforcement agencies. Furthermore, it does not define or

19

Examples of severe medical illnesses listed in memo include kidney failure, cancer,
HIV/AIDS, or significant pregnancy complications.
20

The INA mandates detention for certain categories of aliens, such as most criminal aliens.

21

In August 2007, a DRO official also told us that ICE operational plans include guidance on
processing juveniles encountered during fugitive operations. According to this official, the
guidance is designed to help officers determine whether juveniles should be placed with
families or in the custody of child care agencies in the jurisdiction where the operation
occurred. The official did not provide copies of operational plans containing this guidance
and the plans provided to us before August 2007 did not include guidance on processing
juveniles encountered during fugitive operations.

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fully delineate circumstances that might constitute “last resort.” Another
memo issued by DHS in October 2004 provides officers and supervisors
with flexibility on detaining aliens (who are not subject to mandatory
detention) depending on the circumstances of the case, such as available
bed space. However, this memo does not offer specific guidance on
determining detention for aliens with humanitarian circumstances or
aliens who are not primary targets of ICE investigations.
In addition to ICE field operational manuals and various memorandums,
an OI headquarters official told us that ICE has recently instituted a
worksite enforcement operational guidebook to assist in the proper
planning, execution, and reporting of worksite enforcement operations.
Our review of this guidebook showed that it discusses, among other
things, operational planning and coordination, including instructions on
reporting requirements at the arrest site and working with other ICE units,
like DRO. However, although ICE plans to regularly update its worksite
enforcement operational guidebook based on lessons learned from past
worksite operations, the current guidebook that ICE provided us in August
2007 does not include any guidance about how officers should factor
humanitarian issues into their decision making during the apprehension
and removal process. Finally, in our review of the worksite enforcement
operational guidebook, we did not find guidance to inform officers’
exercise of discretion on whom to stop, question, and arrest when
initiating the removal process—guidance that was also lacking in the
various operational manuals and memorandums.
In our review of documents from 26 OI field offices, we also noted that
only 3 of these field offices have developed local guidance to guide
officers’ discretion in the initial phases of the apprehension and removal
process. However, the local guidance we reviewed is not comprehensive
because the 3 offices do not have guidance that covers the use of
discretion throughout the phases of the alien apprehension and removal
process when officers can exercise discretion. For example, 1 of the 3
offices has guidance on scheduling appointments for future processing for
aliens with humanitarian concerns. Another office has guidance that
covers factors to consider when exercising discretion for cases involving
humanitarian issues as well as guidance on deciding whether to detain
aliens who are not investigation targets.

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Current ICE Operations
Present a Need for
Guidance on Humanitarian
Issues and Aliens Who Are
Not ICE Targets

ICE has recently expanded its worksite enforcement and fugitive
operations, increasing the probability that officers in the field will have to
exercise discretion in their encounters with aliens who present
humanitarian issues or aliens who were not the targets of their
investigations—particularly noncriminal aliens. With these expanded
operations, the need for up to date and comprehensive guidance to reduce
the risk of improper decision making becomes increasingly important.
According to ICE data, in fiscal year 2006, ICE made, through its worksite
enforcement operations, 716 criminal arrests, which include aliens subject
to removal who are charged with criminal violations, and 3,667
administrative arrests, which refer to alien workers who are unlawfully
present in the United States but have not been charged with criminal
violations. These data show a sharp increase from fiscal year 2005, as
noted in figure 2. Through July 2007 of fiscal year 2007, ICE made 742
criminal arrests and 3,651 administrative arrests in its worksite operations;
these arrests surpassed the combined arrests for worksite enforcement
operations from fiscal year 2002 to fiscal year 2005. According to a senior
ICE headquarters official, from fiscal year 2003 through the third quarter
of fiscal year 2007, ICE has also experienced over a six-fold increase in the
number of new officers dedicated to worksite enforcement operations,
many of whom are temporarily assigned to worksite operations.

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Figure 2: Worksite Enforcement Arrests, Fiscal Year 2002 through Fiscal Year 2007
Number of arrests

4,000
3,500
3,000
2,500
2,000
1,500
1,000
500
0
2002

2003

2004

2005

2006

2007
(through
July)

Fiscal year
Criminal arrests
Administrative arrests
Source: ICE data.

ICE reported that it has also expanded fugitive operations and plans to
increase the number of fugitive operation teams from 18 in 2006 to 75 by
the end of fiscal year 2007. Annual performance goals for each of these
teams call for 1,000 apprehensions per team. As of April 27, 2007, ICE
officers had arrested 17,321 aliens through its fugitive operation teams in
fiscal year 2007, a 118 percent increase in arrests since fiscal year 2005.
ICE’s expanding worksite enforcement and fugitive operations both
present officers with circumstances that could require the use of
discretion, specifically cases that involve aliens with humanitarian issues
or aliens who are not ICE targets. Expanded fugitive operations may
increase the number of encounters that officers have with removable
aliens who are not the primary targets or priorities of ICE investigations.
For cases involving these aliens, additional guidance could provide ICE
with better assurance that its officers are equipped to exercise discretion
and prioritize enforcement activities appropriately.

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In large-scale worksite enforcement operations, officers have encountered
numerous aliens who have presented humanitarian issues. For this type of
case, comprehensive guidance on how to weigh relevant aspects of aliens’
circumstances or humanitarian factors would provide ICE with enhanced
assurance that officers are best equipped to appropriately determine
whether aliens should be apprehended, how they should be charged, and
whether they should be detained.
A recent large-scale worksite enforcement operation in Massachusetts
highlights the importance of having comprehensive and up to date
guidance to help inform officers’ decision making when they encounter
aliens with humanitarian issues. In this operation, ICE officers
encountered aliens who had humanitarian issues, including aliens who
were primary caretakers of children and had to assess the totality of the
circumstances in numerous cases, in real time, to decide how to handle
each case in coordination with other entities, such as social service
agencies, state government, and local law enforcement. ICE issued a fact
sheet about this operation on its external Web site that discussed
difficulties in coordinating and communicating with these entities on
issues of operational plans, detention space, access to detainees, and
information about arrestees. The fact sheet noted that ICE arrested 362
removable aliens and transported over 200 of these aliens to detention
facilities in Texas due to a lack of bed space in Massachusetts. In addition,
60 aliens were initially released during administrative processing at the
time of the operation for child welfare or family health reasons, and
additional aliens were released later for these reasons. According to ICE
officials, another concern ICE officers face as they attempt to exercise
discretion is that these officers encounter aliens who sometimes do not
divulge their status as sole caregivers for children. Complex environments
like the one described here demonstrate the need for up to date and
comprehensive guidance that supports ICE’s operational objectives and
use government resources in the most effective and efficient manner.

No Mechanism Is in Place
to Help Ensure Officers
Consistently Have
Necessary Information
Regarding Legal
Developments

Internal control standards state that effective communications should
occur in a broad sense with information flowing down, across, and up the
organization. This includes communicating information in a form and
within a time frame that enables officials in carrying out their duties. In
carrying out their duties, ICE officers require information on relevant legal
developments—such as court decisions modifying existing interpretations
of immigration laws—to help inform their decision making regarding
removal dispositions (e.g., NTA or voluntary departure). However, ICE has
not instituted a mechanism to ensure that legal developments are

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consistently disseminated to ICE officers across all field offices. For
example, officers at only two DRO field offices and one OI field office we
visited received current information on legal developments from their
Chief Counsel Office, which is responsible for disseminating this
information, while others did not receive such information at all or did not
receive it when they needed it for case processing. In addition, officers at
two of the seven OI field offices we visited expressed a need for more
information regarding legal developments to better inform their decision
making regarding removal dispositions. Officers at one OI field office told
us that there are occasions when they do not receive the necessary legal
guidance until they have already processed a case. Chief Counsel offices
independently decide when and what information to disseminate
regarding legal developments. Officers at seven DRO and six OI field
offices we visited told us that they can consult Chief Counsel attorneys to
seek guidance on legal issues. Although relying on Chief Counsel field
offices to disseminate information and advise officers on legal issues can
help officers when making decisions, without a formalized mechanism to
consistently disseminate information that officers can use when they
process cases, officers might not receive information necessary to make
sound removal decisions that comply with the most recent legal
developments.

ICE Has Supervisory
Review and an
Inspection Program to
Monitor Removal
Operations but Lacks
a Means to Analyze
Information Specific
to the Exercise of
Discretion across All
Field Offices

ICE has two control mechanisms in place to monitor its removal
operations—established supervisory review practices and procedures and
an inspection program. However, ICE does not have a mechanism to allow
it to analyze information specific to the exercise of discretion. Internal
control standards advise agencies to design internal controls to ensure
that ongoing monitoring occurs in the course of normal operations. This
monitoring includes regular management and supervisory activities,
comparisons, reconciliations, and other actions people take in performing
their duties. ICE relies primarily on the judgment of experienced field
officers and supervisory reviews to provide assurance that officers’
decision making complies with established policies and procedures. In
addition to supervisory reviews, ICE has recently taken steps to institute
an inspection program designed to oversee field offices’ compliance with
established policies and procedures. However, neither supervisory reviews
nor ICE’s newly instituted inspection program offers a mechanism for
management to collect and analyze information specific to officers’
exercise of discretion in alien apprehension and removal decisions across
all field offices. The ability to collect and analyze data about the exercise
of discretion across field offices could provide ICE with additional
assurance that it can identify and respond to areas that may require some

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type of corrective action. Moreover, without these data and analyses, ICE
is not positioned to compile and communicate lessons learned to help
support officers’ decision making capacity.

Supervisory Reviews Serve
as Primary Control over
Officer Decision Making

One way for agencies to help ensure that ongoing monitoring occurs in the
course of normal operations is to design appropriate supervision to help
provide oversight of internal controls. Consistent with this activity, ICE
policy requires supervisory review of officer decisions on a case-by-case
basis to ensure that officers’ decisions comply with established policies
and procedures for alien apprehension and removal decisions.
ICE officers are to document the specific immigration charges lodged
against an alien, as well as the custody decision made by officers, on a
standardized form. Throughout the alien apprehension and removal
process, supervisors are responsible for reviewing and authorizing
decisions made by officers. For example, when officers are determining
whether to detain or release an alien from custody, ICE memorandums
state that supervisors must approve an officer’s decision.22 In addition,
according to ICE headquarters officials, supervisors at both DRO and OI
field offices are to review officers’ apprehension and removal decisions to
ensure that officers use the most appropriate removal disposition and to
ensure that officers’ decisions comply with legal requirements, policies,
and procedures. Headquarters officials also told us that supervisors are
responsible for approving and signing off on decisions to grant voluntary
departure and issue NTAs and other removal dispositions issued by
officers.
Officials at all seven DRO and seven OI field offices we visited also told us
that supervisors are responsible for reviewing instances when officers
have exercised discretion, such as when encountering aliens with
humanitarian issues. Officers at field offices we visited also noted that
they consult with experienced officers or supervisors when making these
decisions and that operations are typically conducted by teams where
officers’ collective knowledge is used to make discretionary decisions.
Table 1 outlines the types of reviews conducted by experienced officers,
supervisors, and managers at DRO and OI field offices.

22

In addition, ICE supervisors are authorized to issue NTAs and grant voluntary departure
under federal regulations: 8 CFR § 239.1 (NTAs) and 8 CFR § 240.25 (voluntary departure).

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Table 1: Decisions Reviewed by Experienced Officers, Supervisors, and Managers
Phase

Type of decision

Reviewing/approving official
• Senior officer/agent or lead officer/agent
• Supervisory special agent
• Supervisory detention and deportation
officer
• Supervisory special agent
• Supervisory detention and deportation
officer

Apprehension

Decision not to apprehend an
alien based on humanitarian or
other factorsa

Charging

Decision to issue an NTA

Charging

Decision to grant voluntary
departure

•

Detention

Decision to detain or release
alien on own recognizance or
under order of supervision

Removal proceedings

Decision to grant stay or
deferred action

Review instituted
as a result of
ICE policy

8 CFR, Section 239.1

Supervisory special agent
Supervisory detention and deportation
officer

8 CFR, Section 240.25
ICE policy

•

Supervisory detention and deportation
officer

ICE policy

•

Supervisory detention and deportation
officer
DRO assistant field office director
DRO field office directorb

ICE policy

•

•
•

Source: GAO analysis of ICE policies and practices.
a

Decisions not to apprehend aliens involve scheduling an appointment for processing at a later time
and mailing a notice to appear to an alien’s home. In addition to humanitarian factors, other factors
that officers consider when making these decisions include manpower availability, detention
availability, and competing enforcement priorities.

b

According to DRO field officers we interviewed, DRO field office directors are required to approve
stays and deferred action.

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ICE Has Instituted an
Inspection Program to
Help Monitor Operations,
Including Alien
Apprehensions and
Removals for its OI Field
Offices, and Plans a
Similar Program for DRO
Field Offices

ICE’s Office of Professional Responsibility instituted an inspection
program for OI field offices in July 2007, consistent with internal control
standards for monitoring operations by designing mechanisms for
identifying and communicating deficiencies to managers.23 According to
the headquarters official responsible for overseeing the inspection
program, ICE plans to implement a similar inspection program for DRO
field offices in the fall of 2007. According to this official, the inspection
program is designed to determine whether field offices are complying with
the established policies and procedures selected for review. The
inspection program consists of two areas: (1) an annual self-inspection
process under which all field offices must respond to a Web-based
questionnaire covering operational activities and (2) a field inspection
program under which all OI and DRO field offices are to be inspected by
headquarters officials at least once during a 4-year cycle. In instances
where field offices are not compliant, field officials must develop a plan of
action to address discrepancies that are identified. For OI offices,
examples of areas that are to be reviewed include procedures for
processing aliens, as well as methods for ensuring that operational plans
are prepared and approved before arrests are conducted. For DRO field
offices, areas that are to be reviewed, among other things, include
compliance with procedures to ensure that aliens are served with a copy
of an NTA, as well as procedures for completing and obtaining approval
for operational plans in advance of fugitive operations. Our review of the
self-inspection questionnaires and our discussion with the program
manager showed that the inspection program is not designed to analyze
information on officer decision making regarding alien apprehensions and
removals.

ICE Lacks a Mechanism to
Collect and Analyze Data
Specific to the Exercise of
Discretion across All Field
Offices

An important purpose of internal control monitoring is to allow agencies
to assess the quality of performance over time.24 Specifically, internal
control standards recommend that managers compare trends in actual
performance to expected results throughout the organization in order to
identify any areas that may require corrective action to help ensure
operations support operational objectives. Although, ICE has some
controls in place to monitor operations related to alien apprehensions and

23

The Office of Professional Responsibility, among other things, inspects and reviews ICE
offices, operations, and processes so as to provide executive management with
independent reviews of the agency’s organizational health.
24

GAO/AIMD-00-21.3.1.

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removals, neither supervisory review nor its inspection program offer
managers information to specifically analyze officer decision making for
trends across the 75 OI, DRO and Chief Counsel field offices that might
indicate the need for a corrective action, such as additional training or
clarification of procedures, or that might reveal best practices for
achieving desired outcomes. ICE does not have a mechanism for collecting
and analyzing data on officers’ exercise of discretion in determining what
removal processing option to employ, such as officers’ basis for
scheduling an appointment to process an alien at a later date for aliens
who present humanitarian circumstances or the frequency of such actions.
Additionally, ICE does not collect and analyze the actions taken by
officers (e.g., scheduling an appointment, or mailing an NTA) in
addressing aliens presenting humanitarian issues. Such information could
be used by managers to identify trends in actions taken by officers to
address aliens with humanitarian issues that could in turn be used to make
any necessary modifications to guidance, policies or training.
ICE policy outlines a mechanism to capture and analyze information
regarding officers’ discretionary decisions made as part of worksite
enforcement operations, but this inspection mechanism has not been used
consistently. ICE officials told us that, as part of worksite enforcement
operations, its officers make decisions in the field on a case-by-case basis
in a time-constrained environment. In recent worksite operations, officers
have apprehended thousands of aliens in operations conducted in various
cities across the nation. Our review of ICE’s worksite enforcement training
curriculum and OI’s field operational manual showed that ICE policy
outlines a key internal control—after-action reports—which are to
capture, among other things, information on significant or unusual
incidents or circumstances that may have occurred during an operation; a
listing of the number of aliens arrested, reasons for the release of detained
or arrested aliens, and any allegations of civil rights violations or other
complaints.25 However, a senior headquarters official responsible for
overseeing OI’s worksite enforcement division told us that although afteraction reports are still outlined as requirements in OI’s training curriculum
(dated April 2007) and in the OI field operational manual, ICE has
eliminated this requirement. According to OI headquarters officials, prior
to the reporting requirement change, after-action reports had only been
prepared for one worksite enforcement operation, which was conducted

25

According to OI’s field operations manual and training materials, after-action reports
must be completed within 1 business day of an operation.

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in 2006, since ICE was created. The senior headquarters official told us
that, in lieu of after action reports, OI intends to collect information on
lessons learned as part of its worksite enforcement guidebook. Our review
of the guidebook provided to us by ICE showed that the guidebook did not
yet reflect lessons learned.
The scale and complexity of recent ICE worksite operations, such as an
operation in Massachusetts involving difficulties coordinating and
communicating with social service agencies, state government, and local
law enforcement on issues of operational plans, detention space, access to
detainees, and information about aliens who were apprehended, highlight
the need for ICE to be able to learn from past experiences, thereby
providing ICE officers with a richer knowledge base to inform their
decision making under difficult circumstances. Moreover, since ICE has
experienced a more than six-fold increase (between fiscal year 2003 and
the third quarter of fiscal year 2007) in the number of new officers
participating in worksite enforcement operations, more officers are
making decisions and exercising discretion in these complex
environments. Having a mechanism that provides ICE with information
regarding its enforcement operations across all field offices would help
identify areas needing corrective action regarding officer decision making.
For example, having comprehensive information on factors considered by
officers and actions taken by them (e.g., scheduling an appointment for
later processing, or mailing an NTA) to address aliens with humanitarian
issues could lead to revised policies and procedures. In addition, such a
mechanism could help ICE protect its credibility and integrity against
allegations of alien mistreatment by having readily available information to
ensure that officer decision making complies with established policies and
procedures. Without a mechanism to catalog and collect information—
agencywide—on the exercise of discretion, ICE managers cannot analyze
trends to provide additional assurance that officer decision making
complies with established ICE policies and operational objectives, nor is
ICE positioned to refine operational approaches based on a review of best
practices across field offices.
ICE relies on two databases to document officers’ decisions regarding
alien apprehensions: (1) the Enforcement Case Tracking System
(ENFORCE), which is primarily used to collect alien biographical
information and removal option employed, such as voluntary departure or
an NTA, and (2) the Deportable Alien Control System (DACS), which is
used to track the location of detained aliens, as well as the status of aliens’
immigration court hearings. However, headquarters officials told us that
the details of discretionary decisions (e.g., factors considered in deciding

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whether to apprehend an alien or detain an alien, based on humanitarian
reasons) are not recorded in ENFORCE and DACS. Officials explained
that officers may record information explaining their decisions in each of
these systems’ narrative sections. However, according to officials,
inputting this information is not a requirement, and information recorded
by officers in the narrative sections of these databases is not analyzed by
field managers or headquarters officials.
Headquarters officials responsible for overseeing ENFORCE and DACS
told us that ICE plans to update these systems to provide other
capabilities. A headquarters official responsible for overseeing ENFORCE
told us that ICE plans to integrate aspects of ENFORCE with another
system—the Treasury Enforcement Communications System (TECS)—
used by officers to track criminal investigations. According to this official,
the proposed changes will allow officers to more easily access information
pertaining to apprehended aliens and associated criminal investigations. In
addition, a headquarters official responsible for overseeing the DACS
system told us that ICE is piloting a program to merge DACS with
ENFORCE, with the goal of creating one case management system for
collecting information on alien apprehensions and for tracking the
progress of alien removal proceedings. However, it is unclear whether
these plans and the resulting systems would provide information ICE
managers need to monitor and analyze officer decision making across all
field offices.
The DHS Office of Inspector General (OIG) has recognized the need to
upgrade ICE data systems so that management has reliable data to make
programmatic decisions and assess performance with regard to detention
and removal programs, including identifying trends associated with
underlying decisions made during the alien removal process. In April 2006,
the OIG reported that DACS lacks the ability to readily provide DRO
management with the data analysis capabilities to manage the detention
and removal program in an efficient and effective manner because (1) the
information stored in DACS was not always accurate or up to date and (2)
DRO could not readily query DACS to obtain statistical reports on
detentions and removals.26 The OIG stated that the lack of reliable program
analysis capabilities could detrimentally affect DRO’s ability to identify
emerging trends and identify resource needs. According to the OIG, this

26

DHS, Office of Inspector General, Office of Audits, Detention and Removal of Illegal
Aliens, OIG-06-33 (Washington, D.C.: April 2006).

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data system should, at a minimum, be able to provide quality immigrationrelated data on various factors including, among other things, the rationale
underlying DRO’s decision to release an alien from detention or not to
detain individual aliens. OIG recommended that ICE expedite efforts to
develop and implement a system capable of meeting data collection and
analysis needs relating to detention and removal, including a plan showing
milestone dates, funding requirements, and progress toward completing
the project. DHS and ICE concurred with the OIG’s recommendation and
said that it would prepare a project plan for developing and deploying the
system in an expedited manner. Although DHS and ICE said that the new
system is to allow users to capture, search, and review information in
specific areas, including information on detention and removal case
details, the response was not specific about whether it would contain
information on the rationale for making these decisions. Having
information on officers’ exercise of discretion, including their rationale for
making decisions, would provide ICE managers a basis for identifying
potential problems, analyzing trends, and compiling best practices.
ICE headquarters officials told us that collecting and managing data that
detail decisions made by officers could be costly. However, ICE has not
evaluated the costs or alternatives for creating a mechanism capable of
providing ICE with usable information that it can analyze to identify trends
in the exercise of discretion. For example, ICE has not considered the
costs and benefits of such a mechanism in connection with planned or
ongoing information system updates. Until ICE assesses costs and
alternatives for collecting these data, it will not be in a good position to
select and implement an approach that will provide ICE assurance that it
can identify any best practices that should be reinforced or areas that
might require corrective actions—by, for example, modifying policies,
procedures, or training. Given that 75 field offices are involved in the alien
apprehension and removal process and that oversight of these offices lies
with three ICE units, a comprehensive mechanism for reviewing officers’
decision making could provide ICE with meaningful information to
promote the appropriate use of discretion, identify best practices, and
analyze any significant differences across field offices in order to take
appropriate action.

Conclusions

Appropriate exercise of discretion during the alien removal process is an
essential part of ICE’s law enforcement efforts as it conducts operations in
complex environments and with finite resources to identify, locate, and
remove many of the estimated 12 million aliens subject to removal from
the United States. Internal controls, like training, guidance, and monitoring

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that are designed to help ICE ensure that its officers are well equipped to
consistently make decisions that support its operational objectives, are
crucial for ICE to help provide assurance that its officers exercise
discretion in a manner that protects the agency’s integrity, advances its
mission, and provides the greatest value to the nation. Although ICE has
taken steps in the area of training to develop and retain officer skills, ICE’s
guidance does not comprehensively address key aspects of the alien
apprehension and removal process, such as dealing with humanitarian
issues and aliens who are not investigation targets. In light of the
increased number of circumstances that might call for the exercise of
discretion in ICE’s expanded enforcement efforts, comprehensive
guidance—including factors that should be considered when officers
make apprehension, charging, and detention determinations for aliens
with humanitarian issues—to better support officers’ decision making to
provide ICE with enhanced assurance that discretion is exercised
appropriately. Without established time frames for updating guidance, ICE
lacks a means to track progress and ensure accountability for
accomplishing the updates. Moreover, developing a mechanism for
consistently disseminating legal information would help to ensure that
officers have the most recent information on legal developments that may
affect the decisions they make. Finally, collecting information on officers’
exercise of discretion could provide ICE with enhanced assurance that
officers and supervisors across field offices are making decisions that
reflect the agency’s operational objectives regarding alien apprehensions
and removals and could also help managers identify best practices or
areas that may require management action. Although ICE officials have
noted that collecting and managing data about the exercise of discretion
could be costly, ICE has not evaluated the costs of and alternatives for
collecting such information. For instance, as ICE updates the systems it
uses to manage other operational data, it could consider the costs and
benefits of integrating this data collection function as part of other
planned system redesigns. However, without an assessment of the costs
and alternatives for collecting data on officer decision making, whether in
association with planned system updates or not, ICE is not in the best
position to select and implement an approach that provides ICE assurance
that it can identify best practices to support decision making capacity or,
more importantly, recurrent or systematic issues that could jeopardize its
mission.

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Recommendations for
Executive Action

Agency Comments
and Our Evaluation

To enhance ICE’s ability to inform and monitor its officers’ use of
discretion in alien apprehensions and removals, we recommend the
Secretary of Homeland Security direct the Assistant Secretary of ICE to
take the following three actions:
•

develop time frames for updating existing policies, guidelines, and
procedures for alien apprehension and removals and include in the
updates factors that should be considered when officers make
apprehension, charging, and detention determinations for aliens with
humanitarian issues;

•

develop a mechanism to help ensure that officers are consistently
provided with updates regarding legal developments necessary for
making alien apprehension and removal decisions;

•

evaluate the costs and alternatives of developing a reporting
mechanism by which ICE senior managers can analyze trends in the
use of discretion to help identify areas that may require management
actions—such as changes to guidance, procedures, and training.

We requested comments on a draft of this report from the Secretary of
Homeland Security. In an October 4, 2007 letter, DHS agreed with our
three recommendations and discussed the actions ICE plans to take to
address them, which are summarized below and included in their entirety
in appendix II.
With regard to our recommendation that ICE develop time frames for
updating existing policies, including factors that should be considered
when making apprehension, charging, and detention decisions, DHS said
that ICE would reevaluate and republish all existing policies, guidelines,
and procedures pertaining to the exercise of discretion during calendar
year 2008. With regard to our recommendation that ICE evaluate the costs
and alternatives of developing a mechanism by which to analyze trends in
the use of discretion, DHS said that ICE anticipates initiating this
evaluation by December 1, 2007.
With regard to our recommendation to develop a mechanism to help
ensure that officers are consistently provided with updates regarding legal
developments, DHS explained that ICE believes that policies are in place
to address the needs of the operational components for up to date legal
guidance, and that officers rely primarily on local Chief Counsel Offices
for information on legal developments. DHS said that this localized

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approach reflects the fact that significant developments in case law often
result from decisions of the 12 United States Courts of Appeal and that
such decisions are often inconsistent and only have application within the
geographic boundaries where they arise. Nonetheless, DHS commented
that ICE recognizes that consistency in the dissemination of legal updates
is of great importance to agents and officers and said that ICE will look to
develop best practices to ensure the latest legal updates are disseminated
to agents and officers through each Chief Counsel’s office. We believe ICE
identification and implementation of best practices would be important in
helping ensure that updates on legal developments are consistently
provided to officers.

We are sending copies of this report to selected congressional committees,
the Secretary of Homeland Security, the Assistant Secretary of U.S.
Immigration and Customs Enforcement, the Director of the Office of
Management and Budget, and other interested parties. We will also make
copies available to others on request. In addition, the report will be
available on GAO’s Web site at http://www.gao.gov.
If you or your staff have any questions about this report or wish to discuss
them matter further, please contact me at (202) 512-8777 or
stanar@gao.gov. Contact points for our Offices of Congressional Relations
and Public Affairs may be found on the last page of this report. Major
contributors are listed in appendix III.

Richard M. Stana
Director, Homeland Security and Justice Issues

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Appendix I: Objectives, Scope, and
Methodology

Appendix I: Objectives, Scope, and
Methodology
This review examined how Immigration and Customs Enforcement (ICE)
ensures that discretion is used in the most fair, reasoned, and efficient
manner. Along these lines, we examined whether ICE has designed
internal controls to guide and monitor officers’ exercise of discretion
when making alien apprehension and removal decisions, consistent with
internal control standards for the federal government.1 Specifically, this
review addresses the following three questions:
1. When and how do ICE officers and attorneys exercise discretion
during the alien apprehension and removal process?
2. What internal controls has ICE designed to guide officer decision
making to enhance its assurance that the exercise of discretion
supports its operational objectives?
3. What internal controls has ICE designed to oversee and monitor
officer decision making during the alien apprehension and removal
process to enhance ICE’s assurance that the exercise of discretion
supports its operational objectives?
To address these objectives, we obtained and analyzed information at
ICE’s Office of Investigations (OI), Office of Detention and Removal
Operations (DRO), and the Office of the Principal Legal Advisor (OPLA)
within the Department of Homeland Security (DHS) in Washington, D.C.
We also carried out work at 14 ICE field offices—seven OI and seven DRO
field offices—located in seven cities throughout the United States:
Chicago, Detroit, Los Angeles, New York, Philadelphia, Phoenix, and San
Diego and seven ICE Chief Counsel Offices (which serve as OPLA’s field
offices) at these same locations. We selected these locations considering
field office size, ICE data on alien apprehensions, and geographic
dispersion. Regarding alien apprehensions, about 40 percent of all ICE
Office of Investigations apprehensions during fiscal year 2006 were made
by the seven OI offices selected for our review. As we did not select a

1

GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1
(Washington, D.C.: November 1999). We used the criteria in GAO's Standards for Internal
Control in the Federal Government, GAO/AIMD 00-21.3.1, dated November 1999. These
standards, issued pursuant to the requirements of the Federal Managers' Financial Integrity
Act of 1982 (FMFIA), provide the overall framework for establishing and maintaining
internal control in the federal government. Also pursuant to FMFIA, the Office of
Management and Budget issued Circular A-123, revised December 21, 2004, to provide the
specific requirements for assessing the reporting on internal controls. Internal control
standards and the definition of internal control in Circular A-123 are based on the GAO
Standards for Internal Control in the Federal Government.

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Appendix I: Objectives, Scope, and
Methodology

probability sample of field offices or Chief Counsels’ offices to review, the
results of our work at these locations cannot be projected to field offices
nationwide.
To identify when and how officers and attorneys exercise discretion
during the alien apprehension and removal process, we reviewed relevant
laws and regulations as well as applicable policies, memorandums,
operational manuals, and training materials developed by OI, DRO, and
OPLA headquarters offices. We also spoke with headquarters officials in
the OI, DRO, and OPLA operational divisions regarding the exercise of
discretion in the alien apprehension and removal process. At each of the
field locations we visited, we collected and reviewed available locally
developed field guidance, memorandums, and training materials
applicable to the exercise of discretion during the apprehension and
removal process. We also conducted small group interviews with officers,
supervisors, and managers at the 14 OI and DRO field offices we selected
as part of our nonprobability sample to determine when and how officers
at those locations exercise discretion, and when and how officers are
expected to exercise discretion, during the alien apprehension and
removal process. In addition, we conducted small group interviews with
attorneys, supervisors, and managers at the 7 Chief Counsel offices we
visited to determine when and how attorneys exercise discretion, and
when and how they are expected to exercise discretion, once formal
removal proceedings have been initiated by OI and DRO officers.2 As we
did not select probability samples of ICE officers and attorneys,
supervisors, and managers to interview at the field offices we selected, the
results of these interviews may not represent the views of ICE officers and
attorneys and their supervisors and managers nationwide.
To address internal controls ICE has designed to guide officer decision
making, we reviewed field operational manuals, policy memorandums, and
training materials developed by OI, DRO, and OPLA headquarters offices.
We also requested locally developed written guidance and policies and
procedures regarding alien apprehension and removal procedures from all
DRO, OI and Chief Counsel field offices. We received and reviewed locally

2

Federal regulations do not authorize ICE attorneys to initiate formal removal proceedings
(8 C.F.R § 239.1). However, ICE attorneys can advise officers, supervisors, and managers
when they apprehend aliens and initiate removal proceedings, and these attorneys have the
authority to recommend that ICE supervisors cancel a notice to appear (NTA), or if the
NTA has been filed with immigration court, ask the court to terminate removal
proceedings.

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Appendix I: Objectives, Scope, and
Methodology

developed guidance from 13 of OI’s 26 field offices and 12 of Chief
Counsel’s 26 field offices. The purpose of this review was to identify the
range of policies and guidance developed by field units that we did not
capture as part of our nonprobability sample of ICE field offices. We did
not receive locally developed guidance from DRO’s 23 field offices, as
DRO headquarters officials told us that DRO field offices do not rely on
locally developed guidance and instead rely on national policies and
memorandums. As part of our work at the ICE field offices we visited, we
also discussed and identified guidance and training provided to officers
and attorneys with regard to the guidance and information available to
them when exercising discretion during the apprehension and removal
process, including guidance about nontargeted aliens, humanitarian
issues, and updates on legal developments. We then compared the national
and local guidance, memorandums, and training materials in place with
internal control standards to determine whether these controls were
consistent with the standards.3 In addition, we met with headquarters
officials responsible for the development of policy and training of field
unit operations for OI and DRO and we interviewed OPLA officials
responsible for developing policy and training for Chief Counsel Offices to
discern their role in developing and providing guidance and information to
ICE officers, attorneys, supervisors, and managers involved in the alien
apprehension and removal process.
To address what internal controls ICE has designed to oversee and
monitor officer decision making during the alien apprehension and
removal process, we reviewed relevant laws, regulations, and field
operational manuals. We also interviewed OI, DRO and OPLA
headquarters officials, field officers, and field attorneys to identify the
types of oversight that are in place. We examined what controls were in
place to provide assurance that removal decisions are consistent with
established policies, procedures, and guidelines across field offices, and
examined whether these controls were designed to be consistent with the
internal control standards. We did not test ICE controls in place as part of
our review. We also interviewed headquarters officials responsible for
overseeing ICE’s enforcement operations to examine controls in place to
monitor enforcement activities. We met with ICE headquarters officials
responsible for overseeing ICE databases containing information pertinent
to alien apprehension and removal outcomes, and we inquired about
information collected in these databases regarding officer decision

3

GAO/AIMD-00-21.3.1.

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Appendix I: Objectives, Scope, and
Methodology

making, including cases involving humanitarian issues and cases involving
aliens who are not targets of ICE investigations. We also interviewed ICE
officers, supervisors, and management personnel at the ICE field offices
we visited to identify the types of supervisory reviews and approvals
required for decisions made by ICE officers and attorneys and the
documentation to be reviewed and approved by supervisors in regard to
these decisions. We reviewed data on alien apprehensions for worksite
enforcement operations, for fiscal year 2002 through fiscal year 2007, to
identify trends in ICE’s expanded enforcement efforts. We also reviewed
data on alien apprehensions resulting from fugitive operations. To
determine the reliability of the data, we interviewed headquarters officials
responsible for overseeing and verifying the data, reviewed existing
documentation regarding the data, and interviewed headquarters officials
responsible for tracking statistics pertaining to the data.
We conducted our work between August 2006 and September 2007 in
accordance with generally accepted government auditing standards.

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Appendix II: Comments from the Department of Homeland
Security

Appendix II: Comments from the Department
of Homeland Security

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Appendix II: Comments from the Department of Homeland
Security

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Appendix III: GAO Contact and
Staff Acknowledgments

Appendix III: GAO Contact and Staff
Acknowledgments
GAO Contact

Richard M. Stana, (202) 512-8777

Staff
Acknowledgments

In addition to the above, John F. Mortin, Assistant Director;
Teresa Abruzzo; Joel Aldape; Frances Cook; Katherine Davis;
Kathryn Godfrey; Wilfred Holloway; and Ryan Vaughan made key
contributions to this report.

(440522)

Page 43

GAO-08-67 Immigration Enforcement

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