.

e

United

States

General

Accounting

Office

GAO

Report to Congressional Reqhesters

May 1990

CRIMINAL ALIENS
Deportation
Prison
TT
nearmgs Include
Opportunities to
Contest Deportation
l

GAO/GGD-90-79

GAO

United States
General Accounting
Office
Washington, D.C. 20648
General Government

Division

B-232893
May 25,199O
The Honorable Joseph R. Biden, Jr.
Chairman, Committee on the Judiciary
United States Senate
The Honorable Strom Thurmond
Ranking Minority Member
Committee on the Judiciary
United States Senate
The Honorable Jack Brooks
Chairman, Committee on the Judiciary
House of Representatives
The Honorable Hamilton Fish, Jr.
Ranking Minority Member
Committee on the Judiciary
House of Representatives
The Anti-Drug Abuse Act of 1988 (21 U.S.C. 1501) requires us to report
to your committees by May 1990 on whether aliens who are subject to
deportation because they have been convicted of murder and drug or
weapons trafficking (called aggravated felonies) can effectively contest
deportation from prison. Neither the act nor the legislative history
defined criteria for determining whether aliens are able to “effectively”
contest deportation. Therefore, we drew criteria from the Immigration
and Nationality Act, which affords aliens certain procedural rights, and
evaluated the process which the immigration judges used to ensure that
aliens were afforded these rights.
All aliens who are deportable because they have been convicted of certain crimes, including aggravated felonies, are entitled to a hearing
before they can be deported. The Immigration and Naturalization Service (INS) presents its case for the aliens’ deportation before an immigration judge from the Department of Justice’s Executive Office for
Immigration Review (EOIR).In 1987, Justice, through EOIR and INS, began
the institutional hearing program in which immigration judges held
deportation hearings at prisons for incarcerated aliens. To comply with
the Anti-Drug Abuse Act of 1988, Justice included the hearings for
aliens convicted of aggravated felonies in the institutional hearing
program.

Page 1

GAO/GGD99-79

Prison Deportation

Hearings

for Aliens

Et-232893

We attended either a portion or the entirety of 171 alien deportation
hearings between November 1989 and January 1990 held at five state
and two federal prisons. The prisons are located in states that have the
largest alien populations. We selected the specific hearings to attend on
the basis of when they were scheduled and our ability to attend them.

Approach

At the hearings we attended, we noted whether the immigration judges
took steps, as provided by the Immigration and Nationality Act, to give
aliens (1) the opportunity to be represented; (2) notice of the charges
against them; (3) the opportunity to examine evidence against them,
present evidence, and cross-examine witnesses; (4) an interpreter, when
an interpreter was needed for the hearing; and (5) notice of their rights
to apply for relief from deportation and appeal adverse decisions.
Our review had several limitations.
. First, since we attended only one hearing for each alien, we were not
present for the entire proceeding when aliens required more than one
hearing to determine their deportability.
Second, we focused only on the portion of the deportation process that
took place at the hearings we attended. We did not assess whether
aliens, having been advised of their rights at one stage of the process,
actually took advantage of them in preparation for the next hearing
stage. For example, we did not attempt to determine whether aliens
granted an adjournment for purposes of obtaining representation were
actually able to contact and consult with representatives.
Third, because the 1988 act has not been in effect long enough for many
aliens to have committed, been apprehended for, and been convicted of
aggravated felonies, which are final and not under appeal, only 15 of
171 hearings involved aliens convicted of aggravated felonies. We
included the other 156 hearings to give perspective since the hearing
process is the same for all aliens in prison.
. Fourth, we cannot project the results of the 171 hearings we attended to
other deportation hearings at either the prisons we visited or prisons we
did not.
Fifth, while our presence at these hearings may have affected what took
place, we have no way of knowing exactly how and to what extent.
l

l

l

We discussed the report with EOIR officials, who said the report was fair
and balanced. We incorporated their views where appropriate.
Our review was done between September 1989 and April 1990 using
generally accepted government auditing standards. A more detailed

Page 2

GAO/GGD9@79

Prison Deportation

Hearings

for Aliens

B-332893

description of our objectives, scope, and methodology comprises appendix I.

Results in Brief

In the 171 alien deportation hearings we attended, we found that the
judges informed all the aliens of their rights as provided by the law to
contest deportation. Because in some cases aliens needed to pursue these
rights outside of the hearings we attended, we cannot conclude that each
of the 171 aliens was actually able to take advantage of these rights and
thus contest deportation.
At all 171 hearings, the immigration judges advised the aliens of their
right to obtain representation, unless the alien already had representation. In 99 hearings, aliens had no representation because they waived
their right to representation; were granted an adjournment to obtain
representation; or, after having been given the opportunity to be represented, were not represented, and their case proceeded. Where the aliens
did not have representation, the immigration judges elaborated on the
aliens’ rights and on the possible consequences of adverse rulings.
We also noted that the aliens were consistently informed of the charges
against them, their right to present and examine evidence, their right to
appeal, and, where appropriate, their right to apply for relief from
deportation. When aliens were represented, the judge relied on their representatives to protect these rights.
Also, interpreters were always provided when, in the judge’s opinion,
they were required (i.e., the alien did not demonstrate the ability to communicate effectively in English), or when requested by the alien or the
alien’s representative.

Background

The Immigration and Nationality Act (8 USC. 1101) authorizes INS to
apprehend aliens and deport them as criminal aliens if they have been
(1) convicted of a crime involving moral turpitude committed within 5
years of entry and sentenced to confinement for a year or more or (2)
convicted of two or more crimes involving moral turpitude, not arising
from a single action, at any time after entry, regardless of whether confined. Crimes of moral turpitude include, for example, murder, manslaughter, rape, and sodomy. INS can also deport aliens if they are
narcotic addicts or have been convicted of a drug offense.

Page 3

GAO/GGDW79

Prison Deportation

Hearinga

for Aliens

H-232893

The Immigration and Nationality Act sets out procedural requirements
governing deportation hearings. The act (8 USC. 1252(b)) provides the
following procedural rights in deportation cases:
l

l

l

l

The aliens will be given notice, reasonable under all the circumstances,
of the nature of the charges against them and of the time and place at
which the proceeding will be held.
The aliens will have the privilege of being represented (at no expense to
the government) by such counsel, authorized to practice in such proceedings, as they shall choose.
The aliens will have a reasonable opportunity to examine the evidence
against them, to present evidence in their own behalf, and to crossexamine witnesses presented by the government.
No decision of deportability will be valid unless it is based upon reasonable, substantial, and probative evidence.
The aliens’ right to examine and present evidence-the opportunity to
express themselves- includes the use of an interpreter when requested
by them or when the judge determines one is necessary.’
The Immigration Judge’s Bench Book provides guidance to judges on
conducting deportation hearings. It includes instructions for determining
if an interpreter is needed and actions to be taken when aliens have no
representation. The guidance is the same for hearings conducted in
prison or elsewhere.
Although the Immigration and Nationality Act states the rights of aliens
during their deportation hearings, failure to afford these rights during
the hearing may not affect the final resolution of the aliens’ cases.
Courts have held that, in order to overturn an immigration judge’s decision because of a procedural error, the error must have affected the outcome of the alien’s case.
At a deportation hearing, an INS trial attorney presents INS’case before
an immigration judge. Once INS’ allegations of deportability are established, the hearing procedures provide that aliens may then seek relief
from deportation. Aliens may use numerous grounds in contesting
deportation (e.g., claim that they are U.S. citizens) or seeking relief from
deportation (e.g., apply for political asylum). In certain instances. aliens
‘In El Rescate Legal Services, the court ruled that when an immigration judge concludes that an
interpreter is necessary, due process requires interpretation of an entire immigration court proceeding. El Rescate Legal Services v. EOIR, 727 F. Supp. 557 (C.D. Cal. 1989). The JustIce Department has
appealed this decision, according to EOIR.

Page 4

GAO/GGD9@79 F’rison Deportation

Hearings

for Aliens

I%?32893

are not eligible for relief (e.g., aliens who entered the country illegally
and were charged with crimes of moral turpitude). Aliens may appeal
adverse rulings through the Department of Justice to the federal courts
up to the Supreme Court.
The deportation process for criminal aliens usually begins upon conviction and sentencing for a deportable crime. Working with local law
enforcement agencies, INS identifies such aliens within the federal, state,
and local criminal justice systems. INS compiles the evidence deemed necessary for deportation and issues (1) detainers, which notify the applicable law enforcement agencies to turn the aliens over to INS when they
are released from custody and (2) orders to show cause, which inform
aliens that they must appear for deportation hearings and show cause
why the deportation process should not proceed. When aliens complete
their prison sentences, the prison officials may turn them over to INS.
Under the Immigration and Nationality Act, aliens sentenced to imprisonment shall not be deported until released. If INS wants to initiate
deportation proceedings against the aliens at the completion of their
sentences, it can place them in one of its detention facilities or release
them on bond or on their own recognizance.z
The Immigration Reform and Control Act of 1986 requires that criminal
aliens shall have their deportation hearings as expeditiously as possible.
According to the Chief Immigration Judge, the institutional hearing program was established to meet this requirement. Under the institutional
hearing program, which began in 1987, immigration judges hold deportation hearings for criminal aliens while they are still incarcerated. If
found deportable (and if any appeals are unsuccessful), aliens are
deported after being released. Aliens incarcerated in state prisons that
are not used for deportation hearings are transported to one that is used
for hearings and returned after the hearing to their original prison. Only
two federal prisons are used for deportation hearings. Aliens who commit federal crimes are transferred or sentenced to one of these prisons
so they can have deportation hearings before completing their
sentences.
To give added emphasis to the problems stemming from drug-related
crimes and aliens involved in such crimes, the Anti-Drug Abuse Act of
1988 required, among other things, the deportation of aliens convicted
of drug-related crimes. It added the term “aggravated felony” for crimes
of murder and drug or weapons trafficking to the Immigration and
‘INS must detain aliens convicted of aggravated felonies after they are released from prison.

Page 6

GAO/GGD9@79

Prison Deportation

Hearings

for Aliens

B-233393

Nationality Act and required deportation proceedings for aliens convicted of these crimes to commence before their release from prison.
The 1988 act did not change the deportation hearing process. In practice
the hearings for aliens convicted of aggravated felonies were incorporated into the institutional hearing program for all incarcerated aliens.
According to INS and EOIR,the same procedures used for the institutional
hearing program apply to hearings for aliens charged with aggravated
felonies. For fiscal year 1989 and the first 6 months of fiscal year 1990,
EOIR received 3,460 and 1,690 cases, respectively. These cases included
21 and 101 deportation hearings for aliens convicted of aggravated felonies, respectively.
The 171 deportation hearings we attended generally were conducted in
the same manner. The objective of our review was to determine whether
the immigration judges informed the aliens of their rights and gave them
the opportunities to exercise their rights.

Results of Deportation
Hearings Attended

Specifically, we looked for whether the aliens were (1) offered the
opportunity to be represented, (2) given notice of the charges against
them, (3) offered an interpreter, (4) given the opportunity to present
and examine evidence, and (6) given the opportunity to apply for relief
from deportation and appeal the immigration judges’ decisions.
In the 171 hearings we attended, we found that all the aliens, including
those convicted of aggravated felonies, were (1) informed of their right
to representation and (2) given the opportunity to obtain representation.
In these 171 hearings, 72 aliens had representation (6 were represented
by telephone), and 99 did not. In those 99 cases,

Right to Representation

66 aliens waived their right to representation and represented themselves, and in 6 of these cases the aliens had their cases adjourned for
reasons such as to prepare papers, gather evidence, or present witnesses
in support of their claim for relief from deportation, or for EOIR to obtain
an interpreter;
36 aliens were granted an adjournment to obtain representation (this
was at least the second adjournment for 13 aliens to get representation);
and
. 8 aliens had their hearings proceed without representation after having
been given at least one opportunity to obtain representation at one of
their prior hearings, according to the judges.

l

l

Page 6

GAO/GGD9@79 Prison Deportation

Hearings

for Aliens

B-232893

According to the Chief Immigration Judge, when aliens were not represented, the immigration judges’ statutory responsibility as a special
inquiry officer had more significance. We noted that the immigration
judges provided explanations to the aliens of their rights and of possible
consequences under the law of adverse rulings. For example, in one
case, an alien, prior to his deportation hearing, chose not to be represented and did not contest his deportation. While the judge was explaining the deportation process to the alien, the judge noted that the alien
might have been a legal resident. The judge suggested that the alien get
representation because the alien might be eligible to obtain relief from
deportation. The alien declined, and the hearing proceeded. We noted
other cases in which the judges took steps to assist unrepresented aliens
in understanding their rights.
To assist aliens in obtaining representation, the immigration judges gave
them a list of individuals and organizations who may be willing to provide free or nominally priced legal services. Regulations require INS to
maintain current and accurate lists of qualified organizations. However,
when we reviewed the lists for six of the seven prisons, we found that
four of the five lists contained either inaccurate or outdated information.3 Of the 36 organizations listed in the five lists, 11 said that they
would represent criminal aliens and 16 said they would not. We could
not reach the other nine organizations by phone because the phone was
not in service or no one answered after several attempts. We discussed
these problems with the lists with an INS Deputy Assistant Commissioner for Investigations. He issued a written reminder on February 9,
1990, to the appropriate officials about providing accurate and current
lists of legal services. We did not follow up on the results of his
reminder.
According to the Chief Immigration Judge, his office sends its own list,
which is separate from INS’ list of possible providers of legal services, to
aliens at the same time it notifies them of their scheduled deportation
hearing. These lists are specific for each prison and EOIR updates them
annually. He added that the prospective providers are contacted in
advance to determine if they will be willing to represent aliens who are
in prison. He pointed out that sometimes the representative (1) may initially agree but later may not be able to assist the incarcerated aliens or
decide not to represent criminal aliens or (2) may decide the alien does

“In two prisons, the same list was used. At one prison we did not obtain the list because the aliens at
the hearings waived their right to representation and thus did not need a list.

Page 7

GAO/GGD90-79

Prison Deportation

Hearings

for Aliens

B-232993

not qualify for free or low cost services. We did not try to determine if
the aliens received these lists.
Location of aliens at prisons that are not near population centers could
affect their ability to obtain representation. The Chief Immigration
Judge recognized this potential problem and said that, where practical,
selecting centrally located, larger prisons for deportation hearings may
help aliens locate representatives.

Notification of Charges

Generally, immigration judges gave aliens the opportunity to hear the
charges against them. At 81 hearings, the judges read and explained the
charges INS had brought against the aliens. At 28 hearings, the aliens or
their representatives waived the reading of the charges. The immigration judges did not read the charges in 62 hearings we attended. For 40
of the 62 hearings, the alien had another hearing at which time the
charges could have been read, but we were not present. For 21 hearings,
the aliens’ cases were adjourned so that representation or an interpreter
could be obtained. In one hearing, the case was closed because the alien
was being released from prison.

Use of Interpreters

Interpreters were present when the aliens or their representatives
requested them or when in the judges’ opinion they were needed. Unless
the aliens wanted their hearings in English, none of the hearings proceeded without interpreters when the aliens’ native language was not
English. In these instances, the judges reminded them that the interpreters were present to assist if the aliens had difficulty communicating or
understanding the hearing. At two hearings in which interpreters were
not present when they were needed, the hearings were adjourned so that
EOIR could provide interpreters.

Right to Present and
Examine Evidence

In 102 of 171 cases, the judges informed the aliens of their right to present and examine evidence (including cross-examining witnesses) during
their explanation of the deportation process. In 13 additional cases,
aliens presented evidence to contest their deportation. For example,
aliens presented evidence of an appeal of their criminal convictions or
their claim of U.S. citizenship. In 56 hearings, the judge did not inform
aliens of their right to present and examine evidence when we were present. However, 43 of the 66 aliens had representation and 12 had their
hearing adjourned to obtain representation or to have EDIR obtain an
interpreter. The remaining alien waived the right to be represented at

Page 8

GAO/GGD9@79

Prison Deportation

Hearings

for Aliens

B232t393

the hearing. The alien had a previous hearing in which the judge may
have explained this right to him.

Right to Apply for Relief
From Deportation

Aliens subject to deportation may apply for relief from deportation on
several grounds-political
asylum, for example. The judges informed
them of their right to apply for relief when the aliens appeared eligible
to apply. In addition to informing aliens of their right to apply for relief,
the judges usually gave unrepresented aliens guidance as to the type of
relief they could request if they appeared eligible to apply. However, the
judges generally did not inform aliens of their right to file for relief
when none was apparently available. For example, the judges generally
did not inform aliens of possible relief if they were convicted of crimes
of moral turpitude, drug violations, or aggravated felonies and were in
the United States illegally, because these aliens generally are not eligible
for relief from deportation.
During several hearings, the immigration judges asked the aliens questions to determine if any basis existed for granting relief from deportation. For example, one immigration judge asked unrepresented aliens,
just prior to rendering his decision, if they feared being deported to the
country they designated. The judge told us he did this to assure himself
that he was not ordering aliens sent to life-threatening situations. In
response to his question, none of the aliens said that they feared going
to the country they designated.

Right to Appeal

For the 76 cases in which the judges ordered the alien deported, they
informed the aliens of their right to appeal the decision. Of the 76 cases,
14 aliens reserved their right to appeal, and 62 aliens waived it.

Conclusions

In our opinion, the immigration judges took the necessary steps to
inform aliens of their rights provided by the law for the 171 hearings we
attended. Because some of the aliens needed to pursue these rights
outside of the hearings we attended, we do not know if each of the 171
aliens was able to take advantage of these rights.
We identified errors in INS’ lists of possible representatives it gave to
aliens. INS addressed the problem when it issued a reminder to appropriate officials to keep accurate and updated lists, which we considered to
be an adequate response. Since EOIR provides its own list to aliens, they
may have an additional source from which to obtain representation.

Page 9

GAO/GGD9@79

Prison Deportation

Hearings

for Aliens

+B-232999

Locations of the prisons used for deportation hearings could affect some
aspects of the process. For example, aliens may have more difficulty
arranging for representation when imprisoned in isolated areas. Having
deportation hearings at selected state and federal prisons that are near
population centers is one way of facilitating aliens’ access to
representatives.
Copies of this report are being sent to the Attorney General; the Director, Office of Management and Budget; and other interested parties.
Other major contributors to this report are listed in appendix II. If you
have any questions about the contents of this report, please call me at
2758389.

Lowell Dodge
Director, Administration
of Justice Issues

Page 10

GAO/GGDB@79 P&on

Deportation

Hcarlngm for Aliens

Page 11

GAO/GGD-9&79

Prison Deportation

Hednge

for Alien8

Contents

Letter
Appendix I
Objectives, Scope,and
Methodology
Appendix II
Major Contributors to
This Report

Abbreviations
EOIR
INS

Page 12

Executive Office for Immigration Review
Immigration and Naturalization Service
GAO/GGD9&79

Prison Deportation

Hearings

for Aliens

Page 13

GAO/GGBBO-79

R-bon Deportation

Headngn

for Aliens

Appendix I

Objectives,Scope,and Methodology

Section 7347 (e)(2) of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 1501)
requires the Comptroller General to report to the Committees on the
Judiciary of the House of Representatives and of the Senate concerning
the extent to which deportation proceedings held in prisons for aliens
convicted of aggravated felonies may adversely affect their ability to
contest deportation effectively. Neither the act nor the legislative history defined criteria for determining whether aliens are able to “effectively” contest deportation. Therefore, we drew criteria from the
Immigration and Nationality Act, which affords aliens certain procedural rights, and evaluated the process that the immigration judges used to
ensure that aliens were afforded these rights.
We attended 171 deportation hearings either in part or in their entirety
between November 1989 and January 1990. These hearings were held at
five state and two federal prisons. We focused on the procedures immigration judges use to afford aliens the rights to which they are legally
entitled. Accordingly, we tried to determine if the judges provided aliens
(1) the opportunity to be represented by counsel, (2) notice of the
charges against them, (3) the opportunity to examine and present evidence, (4) an interpreter when needed, and (5) notice of their rights to
apply for relief from deportation and appeal adverse decisions. Our
review had several limitations:
. First, we were not present for all the hearings when more than one was

required to complete the process. This occurred for 125 aliens. The
deportation process can either be concluded at the aliens’ first hearing,
or the process can take a number of hearings to conclude. For example,
hearings can be adjourned to provide the aliens time to obtain representation or evidence. However, we stayed for the entire proceeding for
those hearings we attended. We did not attend all of the hearings for 125
cases because they were held before or after the period we set aside to
attend hearings. While deportation hearings are recorded on audiotape,
they are transcribed only if the decision is appealed to EOIR’S Board of
Immigration Appeals. We did not review transcripts of appealed cases or
listen to tapes because of time constraints. Therefore, we were unable to
determine what transpired at other hearings involving those 125 cases.
. Second, we focused on the portion of the deportation process that took
place at the hearings we attended. We could not assess whether aliens,
having been advised of their rights at one stage of the process, were able
to actually take advantage of them in preparation for the next stage. For
example, we did not attempt to determine whether aliens granted an
adjournment for the purpose of obtaining representation (1) were able
to and (2) did contact and consult with representatives.

Page 14

GAO/GGD9@79

Prison Deportation

Hearings

for Alien8

Appendix I
Objectivea, Scope, and Methodology

. Third, at the time of our review, EOIR held relatively few deportation
hearings for aliens convicted of aggravated felonies because of the newness of the Anti-Drug Abuse Act of 1988. Of the 171 hearings we
attended, only 15 were for aliens convicted of aggravated felonies. As a
result of the 1988 act, hearings for aggravated felons were incorporated
into the institutional hearing program with no difference in procedures.
Therefore, our analysis included the deportation hearings of the 156
aliens under the institutional hearing program.
. Fourth, since we did not randomly sample prisons or hearings, our
results are not projectable to other hearings at the seven institutions or
elsewhere.
. Fifth, while our presence at these hearings may have affected what took
place, we have no way of knowing exactly how and to what extent.
We attended hearings and held discussions with immigration judges at
two federal institutions-La
Tuna Federal Correctional Institution
(Texas) and the Federal Detention Center (Louisiana) -and at five
state institutions-Richard
J. Donovan Correctional Facility (California), Florida State Prison, Martin Correctional Institution and Work
Camp (Florida), Stateville Correctional Center (Ilhnois), and Downstate
Correctional Facility (New York). The two federal institutions are the
only federal prisons used for deportation hearings of aliens convicted of
federal crimes.
We selected the state institutions because they are located in four of the
five states that have the largest alien populations. We excluded state
institutions from one of the five states, Texas, because we attended
deportation hearings at a federal institution located there. We selected
the specific hearings to attend on the basis of when they were scheduled
and our ability to attend them. In addition, EOIRprovided input into our
selection of institutions. According to an EOIR official, these seven institutions are not unique. EOIR also informed its field offices which hearing
we would attend.
We did not question or evaluate any of the judges’ specific decisions. We
did not evaluate the qualifications of the interpreters or the quality and
accuracy of translations. We discussed our methodology for collecting
data with EOIR and groups representing aliens, and their comments were
considered in its development.
In discussing the scope and methodology with the committees, they concurred with our approach. We discussed the hearing process with representatives of EOIR, including immigration judges, and INS.

Page 15

GAO/GGD!W79

Prison Deportation

Hearings

for Aliena

Appendix I
Objectlvea, Scope, and Methodology

We discussed the report with ECXRofficials, who said that it was fair and
balanced. Their views were incorporated where appropriate. Our review
was done between September 1989 and April 1990 using generally
accepted government auditing standards.

Page 16

GAO/GGDW?B

Fkbon Deportation

Heaingm

for AJiens

Appendix II

Major Contributors to This Report

General Government
Division, Washington,
D.C.
New York Regional
Office
Office of General
Counsel

(183670)

James M. Blume, Assistant Director, Administration
Lynda L. Hemby, Typist

of Justice Issues

George P. Cullen, Senior Evaluator
Rosemary K. Garner, Staff Evaluator
Ann H. Finley, Senior Attorney

Page 17

GAO/GGD9@79

FVison Deportation

Hearings

for Aliens

Requests for copies of GAO reports
U.S. General Accounting
Post Office Box 6015
Gaithersburg,
Maryland
Telephone

should be sent to:

Office
20877

202-275-6241

The first five copies of each report
$2.00 each.
There is a 25% discount
single address.

are free. Additional

copies are

on orders for 100 or more copies mailed to a

Orders must be prepaid by cash or by check or money order made
out to the Superintendent
of Documents.