IDENT/IAFIS: The Batres Case and the Status of the Integration Project (Cont)
Batres' Attack on the Two Nuns
In an interview with the OIG after his conviction for murder, Batres said that after being returned to Mexico on January 19, 2002, he went to Chihuahua City and illegally returned to the United States in August 2002. He said he entered the United States with several other aliens near Polomas, Mexico. Batres said he hid in the desert area near Columbus, New Mexico, for one day and then returned to Mexico because he was unable to find a means to travel into the interior of the United States.
Batres said that a few days later, he and two other Mexicans illegally entered the United States near Polomas, New Mexico. He was able to reach Deming, New Mexico, where he sneaked on a freight train traveling west through Deming. Batres rode the train to San Bernardino, California. From there, Batres went onto another train going to Los Angeles. After about three days, he went on a freight train traveling north and onto several other trains, finally arriving in Klamath Falls, Oregon.
Batres said that he intended to travel on trains to Portland, Oregon, but was impeded due to a large number of law enforcement officers working in the train yard. Batres therefore decided to stay in Klamath Falls for a time and look for work until he could make it to Portland. On September 1, 2002, Batres encountered two Catholic nuns as he was walking through a local park. Batres raped and assaulted both of the nuns, killing one of them. Batres was quickly identified by the local Sheriff's Department and arrested for the crimes. Upon his arrest, he confessed to the rapes and murder. Batres subsequently pled guilty to the murder and rape of one of the nuns and was sentenced to life imprisonment without the possibility of parole.
OIG Analysis of the Batres Case
Based on Border Patrol practice and policies, Batres' criminal record, if known to the agents, should have resulted in his detention and prosecution. Such prosecution likely would have caused Batres to be incarcerated for a significant period of time, rather than being voluntarily returned to Mexico, where he returned to the United States to commit his rapes and murder.
Although our investigation found that some of the agents and supervisors who handled Batres did not follow Border Patrol policies, we believe that blaming them for this tragedy would not address the underlying problems revealed by this case. Unless their technological support is improved, it is inevitable that individual Border Patrol agents, who often are overwhelmed by large numbers of aliens and cumbersome procedures, will not be able to consistently determine the full criminal history and prior deportations of all of the aliens they apprehend. Therefore, as we describe below, we continue to believe the integration of immigration and FBI databases is urgently needed to eliminate the potential for the breakdowns and problems that this and other cases reveal.
Batres' record warranted his detention for prosecution
As noted above, the FBI's database showed that Batres was convicted of the aggravated felony of selling controlled dangerous substances in 1987 and 1988, and a third aggravated felony of kidnapping and second-degree robbery in 1988. After serving the majority of his six-year sentence for the latter crime, he was deported from the United States in 1992.
An integrated IDENT and IAFIS database would have revealed these convictions and Batres' extensive criminal history, as well as his prior deportation, when he was arrested by the Border Patrol agents in January 2002. However, while the IDENT lookout database provided these agents with a lookout hit that enabled them to learn of Batres' outstanding warrant in Oregon, it did not contain any information about Batres' criminal history or prior deportation. The criminal conviction records contained in IDENT are limited to immigration records that contain certain categories of convictions, the automatic "wants and warrants" updates, the criminal history fingerprint records of aliens from certain countries believed to be a threat to the United States, records received and uploaded manually from other law enforcement agencies, and the limited comments that Border Patrol agents have added to IDENT based on their review of the alien's NCIC records during prior apprehensions. In order to access Batres' criminal history records at the time of his apprehensions, Border Patrol agents would have had to seek his criminal records by asking for a check of the FBI's III or IAFIS database.
If the agents who processed Batres had learned of his record - his three aggravated felonies and his prior deportation - under Border Patrol policies, they should have detained him and sought his prosecution for Reentry After Deportation (8 U.S.C. § 1326(b)).26 This statute provides felony penalties for aliens who have been deported or removed from the United States and thereafter reentered the country illegally, which applied to Batres. This statute provides for harsh punishment - up to 20 years' imprisonment - for aliens such as Batres "whose removal was subsequent to a conviction for commission of an aggravated felony." (8 U.S.C. § 1326(b)(2)). Batres' prior deportation was subsequent to convictions of at least three aggravated felony convictions.
According to the prosecutors from New Mexico and Texas who we interviewed in the Resendez case, aliens with a prior aggravated felony record typically received at least a 3-year prison sentence upon conviction for Reentry After Deportation. Moreover, the crime of Reentry After Deportation is easy to prove. It simply requires proof of a prior order of deportation (in which a Detention and Deportation employee certifies that the alien exited the country on a particular date), and evidence that the alien is the same individual who previously was deported.
Actions of agents who processed Batres
January 18 apprehension
On January 18, 2002, the arresting agent learned of the lookout hit for Batres but did not receive confirmation from WIN/AFIS that Batres was the person in the lookout. The agent therefore did no records check on Batres and voluntarily returned him to Mexico. The Border Patrol disciplined the agent for allegedly failing to follow procedures. However, it is not clear that he contravened established and communicated Border Patrol policies, and we believe solely blaming the agent in this case misses the larger point.
The Border Patrol alleged that the agent "failed to follow proper procedures in processing a possible fugitive and/or Want and Warrant Hit." The Border Patrol stated that he failed to notify a supervisor of the "lookout hits" and voluntary return of Batres to Mexico. Yet, the agent did not violate the December 14 policy memorandum, which states in pertinent part:
If an agent processes an individual through IDENT and gets a "lookout" candidate from any of the law enforcement agencies registered with WIN AFIS, the agent will receive a call from WIN AFIS. At the time of notification, the "hit" will be brought to the attention of the supervisor. The supervisor will make the appropriate contact with the agency requesting the detention for resolution and/or disposition of the suspect being detained. [Emphasis added.]
The agent did, in fact, bring the hit to the attention of a supervisor. He informed a supervisory Border Patrol agent who was entering the next shift that Batres had a red-line lookout hit, but that there was no positive identification received from WIN/AFIS. The supervisor acknowledged that the agent told him that Batres and another alien had returned lookout alerts in IDENT, that the agent had reviewed the fingerprints but did not think they matched the fingerprints associated with the lookouts, and that the agent processed the aliens for voluntary return. The supervisor said he did not intervene or suggest any further action because he believed that if there had been any problem, a supervisor from the prior shift would have taken care of it in accordance with procedures.
Moreover, the December 14 policy statement does not even appear to require agents to contact supervisors about all lookout hits, only those in which WIN/AFIS confirms the lookout match. In this case, WIN/AFIS did not call the agent back to confirm the lookout, because it did not have the current telephone number for the station.
Finally, we question the actions of the Border Patrol supervisors after they were informed by WIN/AFIS that Batres was the person in the lookout. While Batres had already been released, we believe they should have at least noted in IDENT that Batres had been released before the criminal history check had been received, and that the check showed that he had an aggravated criminal record and a prior deportation. This would have been important information to alert any other Border Patrol agent who apprehended Batres that he should be detained rather than mistakenly released, which happened again the very next day. Although the Border Patrol asked the agents involved to write memoranda that same day on what had happened, no one took the initiative to have the information about Batres entered into IDENT. They explained this deficiency by stating that they were focused on discipline for the arresting agent, as well as considering a policy requiring the posting of an IDENT warning for all aliens who are improperly released, not just Batres. Yet, this does not explain why they did not also take the simple step of posting an alert on Batres in IDENT. This was a significant and unjustified failure. And, as noted above, the Border Patrol still has not issued any written policy addressing this issue as of early February 2004.
January 19 apprehension
During the second apprehension of Batres, on January 19, 2002, the Border Patrol agents received confirmation that Batres was the person wanted in the IDENT lookout. The agents appropriately followed Border Patrol procedures and contacted the Oregon authorities. The Sheriff's Department in Oregon advised that they did not want Batres extradited to Oregon, and the Border Patrol therefore voluntarily returned Batres to Mexico.
But the evidence shows that the Border Patrol agents failed to check Batres' criminal history before returning him to Mexico. The agents acknowledged understanding that they should ensure that criminal history checks are performed for any alien, such as Batres, with an outstanding warrant. Both of the agents involved in processing Batres asserted that they believed that the check was done, although they could not say who did it. Despite the notation on Batres' I-213 Form of no known criminal history, a review of Sector radio logs, and NCIC and TCIC search results, showed no indication that there was a call to perform a criminal history check on Batres on January 18 or 19, 2002.
While we cannot know with certainty why the Border Patrol did not conduct criminal history checks in connection with the second arrest, it is likely that the check slipped through the cracks, perhaps after the Oregon authorities declined to extradite Batres. While not excusing this failure, we believe that such omissions are inevitable, given the large volume of aliens apprehended, the time pressure on individual agents to process many aliens, the imprecise and changing Border Patrol procedures, the lack of comprehensive training for agents on these procedures, the multitude of information and forms that have to be completed for each alien, and the cumbersome procedures required to complete criminal history checks. In our view, without integrated databases, problems like the Batres and Resendez cases will recur.
We cannot determine with certainty how many dangerous aliens with serious criminal records the Border Patrol continues to voluntarily return because it does not learn of their criminal records from information in FBI databases. However, the experience with the downloads of FBI criminal records into immigration databases suggests the number is large. Since August 2001, 152,000 IAFIS "wants and warrants" fingerprint records have been added into IDENT, and from January 2002 to April 2003, immigration employees have matched to these records and apprehended 4,820 aliens who were wanted for criminal offenses, including many for drug trafficking and violent crimes. Fifty of these aliens were wanted in connection with murder. Since entering into IDENT during the same period an additional 179,500 IAFIS criminal history fingerprint records of aliens from certain countries believed to pose a security risk to the United States, immigration personnel have matched criminal records to 3,440 apprehended aliens. But these are incomplete downloads of criminal information, and many aliens who have criminal records are detained and released without any check of their records.
The security concerns raised by these numbers are clear. Inputting fingerprint records into IDENT has demonstrated the potential value of a fully integrated system, but it falls well short of the capability offered by full access to all IAFIS fingerprint records. Until the integration is complete and immigration authorities, the FBI, and other law enforcement agencies can simultaneously query both immigration and FBI fingerprint records, we believe dangerous aliens who should be detained may not be.
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