Aliens who are in violation of immigration laws are subject to removal  from the United States. 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. 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. 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. 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. 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. 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 to supervisory reviews, ICE has recently taken steps to institute  an inspection program designed to oversee field offices’ compliance with  established policies and procedures. 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. Recommendations for Executive Action

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 will also make  copies available to others on request. 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. When and how do ICE officers and attorneys exercise discretion  during the alien apprehension and removal process? 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.
Why GAO Did This Study

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. The General Accountability Office (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.

What GAO Found

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. 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.