INS on Battered Spouses/Children

INS Management: Follow-up on Selected Problems (Chapter Report, 07/22/97, GAO/GGD-97-132).

GAO reviewed the Immigration and Naturalization Service's (INS) progress in addressing long-standing management problems, focusing on whether INS had: (1) developed goals and priorities to guide planning and resource allocation; (2) revised its organizational structure; (3) improved internal communications and updated its field and administrative manuals; (4) improved the process of allocating budgetary resources; and (5) improved its capability to monitor its financial status.

GAO noted that: (1) INS has made progress toward addressing some of its management problems, but much remains to be done and top management attention is still required; (2) INS issued a strategic plan in 1994 to guide its decisionmaking and policymaking and to set the stage for the implementation of a priorities management process; (3) INS developed annual goals and priorities and used them in fiscal years 1995 and 1996 to plan and allocate new resources provided by Congress; (4) in addition, in 1994 the Commissioner established a new organizational structure with four Executive Associate Commissioners (EAC) and regional directors who report to one of the executive associate commissioners; (5) the reorganization reportedly has improved oversight of district offices and Border Patrol sectors but has also created some internal communication problems; (6) a lack of clear guidance has also hampered internal communication and may be impeding front-line employees in carrying out their mission-related activities; (7) INS implemented several initiatives intended to improve upon its processes for allocating budgetary resources; (8) INS made improvements in planning resource allocation to be more consistent with agencywide annual priorities and workload demands; (9) furthermore, INS has contracted with a consultant to develop a software program that is compatible with existing staffing models; (10) in addition, the consultant is to review and refine the deployment planning process and the prototype automated software support; (11) INS has had long-standing problems with its financial management system and is in the process of acquiring a new one; (12) INS selected a financial management system in March 1997, even though it had not defined its business processes before it selected the new system; (13) to mitigate the risks associated with its approach, INS plans to analyze its business processes during implementation of the new system, finalize a detailed implementation plan, and develop a risk management plan; (14) GAO did not determine how successful each individual INS action has been in addressing management problems; and (15) however, GAO's survey of INS managers conducted in the fall of 1995, a year after the Commissioner's initial policy and organizational changes, and subsequent interviews with INS managers indicated that although many managers perceived that some initiatives were having a positive effect, communications problems and other challenges remained.

------- Indexing Terms------

REPORTNUM: GGD-97-132
TITLE: INS Management: Follow-up on Selected Problems
DATE: 07/22/97
SUBJECT: Federal agency reorganization
Immigration or emigration
Strategic information systems planning
Financial management systems
Federal agency accounting systems
Internal controls
Communication
Requirements definition
Systems design
IDENTIFIER: INS Financial Accounting and Control System
INS Position Tracking System
INS Hiring Tracking System

Cover

Report to the Commissioner of the Immigration and Naturalization Service

July 1997

INS MANAGEMENT - FOLLOW-UP ON SELECTED PROBLEMS

GAO/GGD-97-132

INS Management Problems

(183594)

Abbreviations

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EAC - Executive Associate Commissioner
FACS - Financial Accounting and Control System
HITS - Hiring Tracking System
INS - Immigration and Naturalization Service
IRCA - Immigration Reform and Control Act
JMD - Justice Management Divisionv NAPA - National Academy of Public Administrationv OMB - Office of Management and Budget
POSTS - Position Tracking System
PS&B - Personal Services and Benefits
VCRTF - Violent Crime Reduction Trust Fund
WAM - Workload Analysis Model

Letter

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B-260846
July 22, 1997

The Honorable Doris Meissner
Commissioner
Immigration and Naturalization Service

Dear Ms. Meissner:

This report discusses the progress that the Immigration and Naturalization Service (INS) has made toward addressing long-standing management problems. It discusses actions taken by INS to address management problems and areas that continue to need attention.

This report contains recommendations to you. The head of a federal agency is required by 31 U.S.C. 720 to submit a written statement on actions taken on these recommendations to the Senate Committee on Governmental Affairs and the House Committee on Government Reform and Oversight not later than 60 days after the date of the report. A written statement also must be sent to the House and Senate Committees on Appropriations with the agency's first request for appropriations made more than 60 days after the date of the report.

We are sending copies of this report to the Attorney General, the Director of the Office of Management and Budget, and other interested parties. We will also make copies available to others on request.

If you or your staff have any questions concerning this report, please contact me at (202) 512-8777. This report was done under the direction of Evi L. Rezmovic, Assistant Director, Administration of Justice Issues. Other major contributors are listed in appendix VII.

Sincerely yours,

Norman J. Rabkin

Director, Administration of Justice Issues

EXECUTIVE SUMMARY

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Subject: Non-Disclosure and Other Prohibitions Relating to Battered Aliens;

IIRAIRA Section 384

From: Office of Programs

To: All INS Employees

This memorandum is designed to inform all INS employees of their obligations under Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and the potential liability for violation of these obligations. As discussed in more detail below, section 384 (copy attached) prohibits the release of any information relating to aliens who are seeking or have been approved for immigrant status under the provisions for battered spouses and children in the Violence Against Women Act (“the VAWA”). Moreover, section 384 prohibits any Department of Justice employee – including both INS officers and immigration judges – from making an adverse determination of admissibility or deportability using information provided solely by the abusive spouse or parent or other member of the household. Violation of either of these prohibitions can result in disciplinary action or in civil penalties of up to $5,000 for each violation.

Prohibition of Disclosure of Information

Section 384(a)(2) provides that in no case may any INS employee “permit use by or disclosure to anyone… of any information which relates to an alien who is the beneficiary of an application for relief” under the VAWA provisions, which relate to battered spouses and children who:

self-petition for immigrant status under Section 204(a)(1)(A)(iii)-(iv) or Section 204(a)(1)(B)(ii)-(iii) of the Immigration and Nationality Act (“INA”), or

petition for removal of conditions upon residency pursuant to INA Section 216(c)(4)(C); or

seek suspension of deportation under INA Section 244(a)(3). [Note there is no parallel to the new cancellation of removal provisions; but Congress may include this future technical correction legislation.]

It is important to emphasize that the prohibition extends to any information relating to the battered spouse or child, which could include verification of status or any other routine information. Exceptions to the prohibition are provided for:

disclosure to another Department of Justice employee for legitimate Department of Justice purposes;

disclosure to law enforcement officials for legitimate law enforcement purposes, at the discretion of the Service;

disclosure for purposes of judicial review in a manner that protects the confidentiality of the information; and

disclosure in such manner as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. Section 8.

The statute provides that an adult can execute a waiver to allow disclosure of information pertaining to him/herself, but does not provide for any waiver allowing disclosure of information pertaining to a child. Benefit granting agencies seeking verification for benefit eligibility purposes will be obtaining such waivers and submitting them with their verification requests. Additional guidance on this issue will be provided to immigration status verifiers.

Although the legislative history is scant, this provision appears to have been enacted in response to concerns from the advocacy community that INS officers have provided information on the whereabouts of self-petitioners or on their pending applications for relief to the allegedly abusive spouse or parent. The VAWA provisions enumerated above were created by Congress so that the battered alien can seek status independent of the abuser. Thus, disclosure of information to the alleged abuser or any other family member was inappropriate even prior to the new law. With enactment of section 384, however, such inappropriate conduct is now also grounds for disciplinary action or fine, or both.

Limitations on Use of Information Provided by Abusive Family Members

Section 384(a)(1) is a complex provision which prohibits any employee of the Department of Justice from making “an adverse determination of admissibility or deportability of an alien… using information furnished solely by“ any person falling within one of four categories:

a spouse or parent who has battered the alien or subjected the alien to extreme cruelty;

a member of the spouse’s or parent’s family, residing in the same household as the alien who has battered the alien or subjected the alien to extreme cruelty, with the spouse’s or parent’s acquiescence;

a spouse or parent who has battered the alien’s child or subjected the alien’s child to extreme cruelty (and the alien has not participated in the abuse); or

a member of the spouse’s or parent’s family, residing in the same household as the alien, who has battered the alien’s child or subjected the alien’s child to extreme cruelty, with the acquiescence of the alien’s spouse or parent (and the alien has not participated in the abuse.)

In the interests of full compliance in what could be difficult fact situations, the following guideline is to be followed:

If an INS employee receives information adverse to an alien from the alien’s U.S. citizen or lawful permanent resident spouse or parent, or from relatives of that spouse or parent, the INS employee must obtain independent corroborative information from an unrelated person before taking any action based on that information.

While the first category of potential abusers enumerated above – spouse or parent – parallels the category which can give rise to a claim of immigration status under the VAWA provisions, the other three categories reflect an expansion of protection to battered aliens who are not eligible for status under VAWA. Such expansion to include those who have suffered abuse at the hands of another family member in the same household is similar to IIRAIRA section 501, which makes individuals abused by other members of the spouse or parent’s family “qualified aliens” for purposes of public benefits.

These provisions, and the Congressional and public scrutiny which accompany them, warrant particular care whenever an INS officer or employee suspects that an alien with whom they are dealing might have been subject to domestic violence. It is important to note, however, that nothing in IIRAIRA changes the eligibility standards of the basic VAWA provisions identified at p. 1, above, nor does IIRAIRA after the effectiveness of the interim VAWA self-petitioning rule published in the Federal Register on March 28, 1996.

Paul W. Virtue

Acting Executive Associate Commissioner

Attachment:

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

SEC. 384. PENALTIES FOR DISCLOSURE OF INFORMATION.

(a) IN GENERAL. –Except as provided in subsection (b), in no case may the Attorney General, or any other official or employee of the Department of Justice (including any bureau or agency of such Department)—

(1) make an adverse determination of admissibility or deportability of an alien under the Immigrant and Nationality Act using information furnished solely by—

(A) a spouse or parent who has battered the alien or subjected the alien to extreme cruelty,

(B) a member of the spouse’s or parent’s family residing in the same household as the alien who has battered the alien or subjected the alien to extreme cruelty when the spouse or parent consented to or acquiesced in such battery or cruelty, (C) a spouse or parent who has battered the alien’s child or subjected the alien’s child to extreme cruelty (without the active participation of the alien in the battery or extreme cruelty), or

(D) a member of the spouse’s or parent’s family residing in the same household as the alien who has battered the alien’s child or subjected the alien’s child to extreme cruelty when the spouse or parent consented to or acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, unless the alien has been convicted of a crime or crimes listed in section 241(a)(2) of the Immigrant and Nationality Act; or

(2) permit use by or disclosure to anyone (other than a sworn officer or employee of the Department, or bureau or agency thereof, for legitimate Department, bureau, or agency purposes) of any information which relates to an alien who is the beneficiary of an application for relief under clause (iii) or (iv) of section 204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B), section 216(c)(4)(C), or section 244(a)(3) of such Act as an alien (or the parent of a child) who has been battered or subjected to extreme cruelty.

The limitation under paragraph (2) ends when the application for relief is denied and all opportunities for appeal of the denial have been exhausted.

(b) EXCEPTIONS. –

(1) The Attorney General may provide, in the Attorney General’s discretion, for the disclosure of information in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under section 8 of title 13, United States Code.

(2) The Attorney General may provide in the discretion of the Attorney General for the disclosure of information to law enforcement officials to be used solely for a legitimate law enforcement purpose.

(3) Subsection (a) shall not be construed as preventing disclosure of information in connection with judicial review of a determination in a manner that protects the confidentiality of such information.

(4) Subsection (a)(2) shall not apply if all the battered individuals in the case are adults and they have all waived the restrictions of such subsection.

(c) PENALTIES FOR VIOLATIONS. – Anyone who willfully uses, publishes, or permits information to be disclosed in violation of this section shall be subjected to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each such violation.

(d) CONFORMING AMENDMENTS TO OTHER DISCLOSURE RESTRICTIONS.—

(1) IN GENERAL.—The last sentence of section 210(b)(6) and the second sentence of section 245A(c)(5)(8 U.S.C. 1255a(c)(5)) are each amended to read as follows: “Anyone who uses, publishes, or permits information to be examined in violation of this paragraph shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each violation.”

(2) EFFECTIVE DATE.—The amendment made by this subsection shall apply to offenses occurring on or after the date of the enactment of this Act.