[See Ask An Amnesty Advocate: How Much Fraud Last Time? by Juan Mann, November 5, 2003]
Report of investigation by the Department of Justice Office of the Inspector General (OIG) examining the Immigration and Naturalization Service's (INS) "Citizenship USA" (CUSA) initiative of fiscal year 1996. Excerpts addressing the problem of widespread fraud in the Special Agricultural Worker (SAW) amnesty program under the 1986 Immigration Reform and Control Act (IRCA).
(Report dated July 31, 2000)
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Section III (D)(4)(a)(1) – Special Agricultural Workers become eligible to apply for naturalization
Congressional passage of IRCA permitted millions of undocumented aliens to obtain lawful permanent resident status through INS' resulting Legalization or "Amnesty" program. [Immigration and Naturalization Service] Commissioner [Doris] Meissner advised Congress in September 1995 that "a major reason" for the increase in naturalization application filings that INS had experienced was this Legalization program.
IRCA contained two "amnesty" provisions. The first dealt primarily with undocumented aliens who had entered the United States before January 1, 1982, without inspection or on a visitor or student visa and overstayed or worked without permission. These "pre-1982 applicants" had to meet certain requirements concerning proof of identity, length of residence, and financial responsibility in order to obtain permanent resident status. IRCA's other legalization provision, and the one examined by the OIG, afforded permanent residence to certain undocumented agricultural workers known as "Special Agricultural Workers," who had engaged in agricultural work for specified periods of time between May 1, 1984, and May 1, 1986.
Successful SAW applicants obtained temporary residency. They generally adjusted to lawful permanent residents within one or two years (depending on whether they were "group 1" or "group 2" applicants and depending on the date of which their applications were granted). The deadline for applying for residency under the SAW provisions was November 30, 1988. This meant that many hundreds of thousands of persons who had obtained lawful permanent resident status through the SAW program became eligible for naturalization in 1994 and 1995 (i.e., five years after becoming permanent residents). According to INS documents, as of December 1, 1995, this group of potential citizens numbered approximately 1.2 million persons.
Section III (D)(4)(a)(2) – INS' belief in widespread fraud in SAW program
To be eligible for adjustment of status under the SAW provisions, the applicant had to prove with documentation that he or she had worked in an agricultural enterprise in the United States for 90 days in each calendar year from 1984 through 1986, or for 90 days between May 1985 and May 1986. The evidence of having engaged in such work, INS employees believed, was often forged and sold to undocumented individuals seeking U.S. residency. Given the crush of applications under the program and the relative fewer investigative resources, INS approved applications absent explicit proof that they were in fact fraudulent.
We found that there was consensus within INS that "SAW fraud"—or fraud in adjusting status under the SAW provisions of IRCA—had been prevalent. As Commissioner Meissner told the OIG, the perception that the SAW program was rife with fraud was "the commonly held view at the institution." Although some Headquarters officials told the OIG that no empirical studies formally established the extent of such fraud, they acknowledged that the Field believed it had been widespread.139
Footnote 139. According to an e-mail message summarizing the topics of discussion, Headquarters officials meeting on December 1, 1995, noted that 1.2 million SAW applicants had become eligible for naturalization that day, "with 70% fraudulent applications anticipated [sic]." Although the extent of fraud in the SAW program was not documented, by September 1995 INS had conducted at least one large-scale investigation into organized efforts to sell fraudulent SAW documents. In addition to identifying suspects who were later convicted of federal crimes, that operation identified approximately 22,000 adjustment of status cases that were connected in some way to the persons convicted (for example, a case was included among the 22,000 if the certificate from an agricultural entity bore the signature of one of the suspects). For a more complete discussion of INS' actions in relation to these 22,000 cases, see "Operation Desert Deception," below.
Section III (D)(4)(a)(3) – Congressional concern about SAW fraud and INS' commitment to take appropriate action
INS officials were not alone in thinking that the SAW program was rife with fraud. On June 28, 1995, Barbara Jordan, chair of the U.S. Commission on Immigration Reform, testified before a joint hearing of House and Senate immigration subcommittees about the Commission's recommendations.140 According to Jordan's prepared statement, the Commission urged INS, in light of "reports of widespread fraud" in the SAW program, to pay "special attention" to the naturalization applications of those who became legal residents under the SAW provisions. The Commission recommended that INS "carefully scrutinize the naturalization applications of all special agricultural workers to ensure that their special agricultural worker status was properly granted."
Senate Immigration Subcommittee Chairman Alan Simpson asked INS to respond to several questions after a September 1995 hearing, one of which directly addressed SAW fraud. After first indicating that he had information that "experts claim[ed] that 50% of the SAW applications were fraudulent," Chairman Simpson asked how INS intended to address the issue of fraud when SAW beneficiaries applied for naturalization.
[INS Executive Associate Commissioner] EAC [T. Alexander] Aleinikoff and Rosenberg met with Chairman Simpson's staff in October 1995, several weeks after the September hearing, to discuss the Chairman's concerns. According to Rosenberg, participants at the meeting discussed SAW fraud and INS' intended response "extensively." Rosenberg told the OIG that his position at the meeting was that INS should not single out all SAW applicants for treatment different than that received by other naturalization applicants. According to documents prepared for the meeting, INS' position was that SAW applicants would be treated like other applicants, and that indication of fraud would be investigated. When fraud was substantiated the applicant would not be naturalized.
Footnote 140. Jordan testified before the Subcommittee on Immigration of the Senate Judiciary Committee and the Subcommittee on Immigration and Claims of the House Judiciary Committee.
Section III (D)(4)(a)(4)—The role of immigration fraud in the naturalization adjudication
Even without the additional exhortation from Congress, as implied by INS' response to Chairman Simpson, federal law required INS to be vigilant about previous immigration fraud when adjudicating any application for naturalization. One of the prerequisites to naturalization was that the applicant, as set forth in the INA at 8 USC § 1429, had been "lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of [the INA]." The INA directed the Attorney General to rescind the lawful permanent resident status of any person later found to have been ineligible. The applicant was asked on the N-400 whether he or she had ever "given false testimony for the purpose of obtaining any immigration benefit," a question that would encompass, among other things, false statements the applicant made to adjust status. Finally, obtaining permanent resident status through fraud clearly should affect an adjudicator's evaluation of the applicant's "good moral character," and, as noted above in INS' response to Chairman Simpson's follow-up questions, would have resulted in denial of the application for naturalization.141 Therefore, merely by enforcing the existing rules and regulations, INS could have been watchful for SAW fraud without running the risk of treating such applicants differently from any other applicant for naturalization.
To effectively enforce this aspect of the naturalization laws, the adjudicator needed to be aware of the various methods by which a person could become a permanent resident. As previously noted in this chapter, change of status issues were not covered in the abbreviated training offered to new CUSA adjudicators. Consequently, this omission necessarily limited officers' ability to detect SAW fraud (or any other kind of previous immigration irregularity). This lack of training, coupled with the fact that an applicant's permanent file was often unavailable at interview (as discussed in a subsequent chapter), hobbled officers' efforts to thoroughly enforce the naturalization laws. In addition to these deficiencies, INS Headquarters provided no guidance to adjudicators during CUSA concerning how to detect SAW fraud or what to do upon its discovery.
Such guidance was sorely needed because of confusion in the Field about whether the naturalization adjudicator was permitted to review information in an applicant's file relating to his or her application for adjustment of status under IRCA's "amnesty" provisions. The confusion stemmed from an over-expansive interpretation of the rules governing the confidentiality of those applications for adjustment of status under IRCA. We offer a brief description of the confidentiality provisions of IRCA as background to this discussion.
Footnote 141. Several provisions of law support denial of naturalization to someone found to have obtained residency by fraud. The applicant necessarily lacked the requisite "good moral character" if the original fraud was false testimony made under oath in order to receive an immigration benefit and occurred within five years of the date on which the applicant applied for naturalization. If fraud was established but the applicant denied the conduct at the naturalization interview, then the false testimony to the adjudicator could be grounds for denial. Furthermore, if the fraud occurred outside the 5-year "good moral character" period, it could nevertheless be taken into account in evaluating the application if "relevant" or if the applicant's subsequent conduct did not reflect that there had been "a reform of character."
Section III (D)(4)(a)(5)— The confidentiality provisions of IRCA
To encourage potentially eligible applicants to apply for adjustment of status, IRCA established that information provided by amnesty applicants would not be used to deport them (on the basis of having illegally entered the country or having overstayed after entering legally) in the event that their applications were denied. The confidentiality provisions of IRCA prohibited INS from using the information in a legalization file "for any purpose other than to make a determination on the application or for enforcement of [the provisions concerning false statements in applying for adjustment of status], or for the preparation of reports to Congress" as required by IRCA. As a means of facilitating compliance with this provision, INS segregated information pertaining to the legalization application from other information in the applicant's file and placed a red cover or "red sheet" on top of the information.
IRCA's implementing regulations did not address whether the information in a granted legalization application could subsequently be used for any purpose, such as to determine eligibility for another immigration benefit. In July 1989, INS amended its regulations and specifically addressed subsequent uses of the information in a granted legalization application. At least two regulations spelled out the propriety of reviewing the adjustment application. The regulations concerning the application for temporary residence (the first stage of the amnesty adjustment of status process) provided that "information in a granted legalization application and contained in the applicant's file" was "subject to subsequent review in reference to future benefits applied for (including petitions for naturalization and permanent resident status for relatives)." In the regulations concerning the temporary resident's adjustment to permanent resident (the second stage), it was noted that "information contained in granted legalization files may be used by the Service at a later date to make a decision … on an immigrant visa petition or other status filed by the applicant . . ." or "on a naturalization application submitted by the applicant," and for the preparation of reports to Congress and for the furnishing of information for the census.
Section III (D)(4)(c)—Operation Desert Deception: INS did not take action during CUSA to prevent applicants who had benefited from SAW fraud from becoming citizens
By September 1995, INS had specifically identified 22,000 cases of suspected SAW fraud in the aftermath of an extensive criminal investigation entitled "Operation Desert Deception." These 22,000 cases were connected to several defendants in the investigation who had by then been convicted of various federal crimes relating to an elaborate SAW fraud scheme. Despite knowledge of these cases at the highest level of INS, despite knowledge that many of these individuals had become or would soon become eligible to apply for naturalization, and despite Headquarters' commitment to Congress in November 1995 that it would appropriately investigate cases in which SAW fraud was suspected, INS did not take timely action to ensure that applicants suspected of SAW fraud did not naturalize during CUSA. The evidence shows that INS knowingly put CUSA's production priorities ahead of its commitment to take appropriate action to prevent individuals who had already fraudulently received one immigration benefit from becoming U.S. citizens.
Section III (D)(4)(c)(1) —Background on Operation Desert Deception
In 1995, INS' Investigations Division completed a 5-year criminal investigation into immigration fraud code-named "Operation Desert Deception" (ODD). The investigation, conducted largely around Las Vegas, Nevada, focused on individuals who assisted aliens in preparing and filing fraudulent legalization applications and other documents with INS. This investigation resulted in the successful prosecution of 54 individuals, including two INS officers, for legalization fraud, bribery, and tax evasion.
During the course of the investigation, approximately 22,000 A-files were segregated as possibly fraudulent because they contained residency applications that had been filed in Las Vegas during the time period under investigation. Primarily as a function of the date on which the residency applications were filed, the 22,000 cases included persons who were then eligible to naturalize (because five years had passed since the time that permanent residency had been granted), as well as other persons who were not yet eligible to naturalize. These A-files were stored in an INS facility in Las Vegas until sentencing and post-trial motions were completed on the 54 defendants in the spring of 1996.
The 22,000 cases were of interest to the ODD prosecution team not just because they contained evidence of the defendants' criminal conduct, but also because the applicants themselves—though not the primary targets of the investigation—included persons who knowingly participated in the defendants' criminal scheme. Although prosecutors decided that the task was too great to consider pursuing criminal charges against individual applicants, EAC Aleinikoff, in a declaration signed on September 13, 1995, and later filed with the federal court in Nevada in support of INS' request for restitution from one prominent defendant in the case, told the court that INS was going to begin a costly review of the 22,000 files
…in an effort to identify any fraudulent documents or false applications submitted by an individual applicant to obtain immigration benefits under the Immigration Reform and Control Act (IRCA). To the extent permitted by law, based upon that review, the INS will then take action to divest any alien of any benefit fraudulently obtained through the legalization process.
Thus, the files were also kept segregated in Las Vegas in anticipation of this INS review.153
Footnote 153. For those cases among the 22,000 in which permanent residency had been granted more than five years earlier and for which reviewers determined the application for residency had been fraudulent, the review promised by Aleinikoff, if timely, would presumably prevent INS from inadvertently approving an application for naturalization by that permanent resident.
Section III (D)(4)(c)(2) —The delay
Despite Aleinikoff's representations, and despite INS' representations to Congress later in 1995 that it would take steps to ensure that cases in which SAW fraud was suspected would be investigated before any decision was made to approve naturalization, INS did not timely undertake the promised review of the 22,000 cases. The lead federal prosecutor working on the criminal cases told the OIG that he became concerned when, despite his requests in October 1995, INS had not taken any steps toward reviewing the cases by late 1995. The prosecutor said that each day more of the legalization applicants were becoming eligible, and he believed that INS was bound by Aleinikoff's declaration to conduct a thorough review. The prosecutor told the OIG that he recalled discussions with INS officials in late 1995 during which INS balked at conducting the case review because of budget concerns.
By May 1996, INS still had not begun to review the files. During a conference call with INS officials on May 14, 1996, the prosecutor was advised that the reason for delays in implementing the review was budgetary concerns, specifically that INS' resources were primarily devoted to CUSA. As he indicated in his contemporaneous notes, INS told him that the "big priority is naturalization, to naturalize 1.6 million people." Michael Niefach of the General Counsel's Office, who also participated in the conference call, corroborated the prosecutor's recollection that he had expressed his concern about the delay and had asked INS to undertake the promised review. Niefach told the OIG that budget constraints, although not specifically the CUSA program, had prevented INS from undertaking the review project before that date.154
Footnote 154. Niefach told the OIG that he was unaware of the CUSA program at that time.
Section III (D)(4)(c)(3)—144 naturalized before INS' file review begins
Finally, however, as a result of the prosecutor's concerns and because of unfavorable media attention INS was receiving in Las Vegas about the delay, INS assembled a team to review the Operation Desert Deception cases beginning on May 28, 1996. By June 14, 1996, the team had reviewed, sorted, and categorized all 21,062 files. They found that 5,840 of the A-files belonged to individuals who had been lawful permanent residents for more than five years and thus could apply to naturalize at any time. In addition, they found that 144 of the A-files belonged to individuals who had already naturalized (the fact that these applicants had naturalized even though their A-files were stored in Las Vegas reflected INS' liberal use of temporary files during CUSA, as discussed in the subsequent chapter on A-files155). Individuals in 1,680 other cases had not been permanent residents for five years, and, consequently, rescission of resident status remained possible. An additional 1,203 of the timely filed adjustment of status applications were "pending," meaning they were in some stage of adjudication. The remaining 12,195 cases were considered untimely filed adjustment of status applications.
INS sent the files to the California Service Center after this review where the team proposed to take administrative action on all inappropriately granted applications, such as revocation of naturalization and rescission of lawful permanent resident status. The cases accorded the highest priority among those needing additional review were the 5,840 cases in which the applicant was eligible to naturalize. These files needed to be reviewed quickly to determine whether they revealed sufficient evidence of fraud so that they could be denied for naturalization due to lack of "good moral character." Before recommending such action, INS General Counsel's position was that it was "essential that there be a specific, documented finding of fraud in each particular case before a naturalization application is denied."
Footnote 155. Although the ODD files had been ordered to be kept in Las Vegas, they remained available to be reviewed by INS. In fact, the ODD review team developed an on-site system for reviewing the files if requests for information were received under the Freedom of Information Act.
