IDENT/IAFIS: The Batres Case and the Status of the Integration Project (APPENDIX - DEPARTMENT OF JUSTICE RESPONSE)
APPENDIX - DEPARTMENT OF JUSTICE RESPONSE
MEMORANDUM FOR GLENN A. FINE Inspector General
Office of Inspector General
FROM: Paul R. Corts
Assistant Attorney General
for Administration
SUBJECT: Comments on OIG Draft Report: IDENT/IAFIS: The Batres Case
and The Status of the Integration Effort I
Thank you for the opportunity to comment on the Office of Inspector General's (OIG) draft report entitled, "IDENT/IAFIS: The Batres Case and The Status of the Integration Effort." As you requested, we have identified a number of factual inaccuracies that are present in the report, and they are noted in an attachment to this memorandum. Below are comments regarding the recommendations contained in the draft report.
1. The DOJ should develop and implement a memorandum of understanding (MOU) with the DHS to guide the integration of IDENT and IAFlS.
We agree that a MOU with DHS is needed and, as you report, it has been our intention to develop such a document since last summer. However, that MOU must include a cost-sharing agreement that will require DHS to contribute funds to this effort if significant progress is to be accomplished in a timely manner. Since our Department's appropriation was just passed, it has been unclear until just recently as to how much direct funding would be available to the project. Furthermore, as you also report, a number of significant policy decisions must be made regarding the US VISIT system and its relationship to IAFIS. These decisions will directly affect the contents of an MOU and the associated cost sharing agreement. We are having on-going discussions with DHS about all of these issues, and an MOU will be prepared as soon as possible.
2. The DOJ should assign responsibility for coordinating and overseeing the integration project to a senior DOJ official.
We agree that the participation of high-level officials in both DOJ and DHS is needed to resolve a number of critical issues. I am satisfied, however, that the current assignment of responsibilities within JMD is sufficient to move this project forward; we just need to reach agreement within DHS on many of these issues and obtain the necessary funding. The personnel assigned to the IDENT/IAFIS Integration Project Office are working closely with the CIO on these matters, and I am being kept apprised of issues that need to be brought to the attention of senior Departmental officials. I have had conversation with Asa Hutchinson, Under Secretary for Border and Transportation Security (with responsibility for this project at DHS), and we will communicate on these issues when necessary or appropriate.
3. The DOJ should pursue expeditiously the development of Version 2 of the IDENT/IAFIS Integration Project, which will provide the DHS apprehension and criminal history information to other federal, state, and local law enforcement agencies.
As mentioned previously, a number of critical issues are being discussed with DHS and US VISIT officials. We agree that these issues must be resolved before work on the next phase of the integration project can proceed. This will ensure that the greatest degrees of interoperability and effectiveness are achieved at the least cost and within the shortest possible timeframe.
4. The DOJ should work with the DHS to update the FBI's "wants and warrants" information with IDENT on a daily, rather than bi-weekly, basis until IDENT and IAFIS are fully integrated.
Consistent with your recommendation, the FBI is already responding to a DHS request for daily updates of the "wants and warrants" extracts that are loaded into IDENT. We expect that to be achieved within three months.
5. The DOJ should coordinate with the DHS to establish procedures to ensure that the criminal histories of all aliens who have a lookout or IAFIS hit are provided to and reviewed by the Border Patrol. In addition, we urge the DHS to make these criminal history records part of the official record of its encounter with the alien. Further, we encourage the Border Patrol to create a uniform policy for all Border Patrol Sectors and stations that outline appropriate procedures for handling lookout hits.
Today, using the most current IDENT/IAFIS workstations, DHS can take 10 rolled prints and simultaneously submit searches to both IDENT and IAFIS. An IAFIS "hit" will automatically return a rap sheet to DHS in 10 minutes, often within 3-5 minutes. Future deployment of this workstation will be done by DHS, at its expense and according to its schedule because Congress deleted funding for this purpose from the DOJ budget.
When using IDENT only, DHS is able to detect "wanted" aliens if those records have been extracted from IAFIS and placed in IDENT. When there is an IDENT hit on these individuals, DHS is provided the relevant FBI record number. As your report states, a Border Patrol Agent can obtain the criminal history through a phone call to his or her radio room. This would have been an easier task to perform than was the 45-minute interview with Mr. Batres that was conducted by the agent who first apprehended him. The rap sheet that could have been obtained might have provided physical characteristics (e.g., scars, marks and tattoos) that would have helped to confirm Mr. Batres' real identity.
Again, thank you for the opportunity to comment on this draft report. I share your view that this project offers significant law enforcement benefits and that it I should proceed as expeditiously as possible. Please be assured that we are working with officials from DHS to ensure the integration/interoperability IAFIS and IDENT/US VISIT in the most effective and efficient manner.
Attachment
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Footnotes
The facts of the Resendez case are detailed in a March 2000 OIG report entitled "The Rafael Resendez-Ramirez Case: A Review of the INS's Actions and the Operation of Its IDENT Automated Fingerprint Identification System."
The full name of IAFIS is the "Integrated Automated Fingerprint Identification System." IAFIS is an automated ten-fingerprint matching system run by the FBI that contains in its Criminal Master File over 43 million ten-print fingerprint records. IAFIS records can be electronically compared against submitted fingerprints.
The full name of IDENT is the "Automated Biometrics Identification System." To enroll an alien in IDENT, an immigration employee places the alien's right and left index fingers on the IDENT fingerprint scanner, takes the alien's photograph with the IDENT camera, and enters certain biographical information into the computer. IDENT then electronically compares the alien's fingerprints to fingerprints in two IDENT databases: 1) a "lookout" database that contains fingerprints and photographs of approximately 1 million aliens who have been previously deported or who have a significant criminal history; and 2) a "recidivist" database that contains fingerprints and photographs of approximately 6 million illegal aliens who have been apprehended by the INS and enrolled in IDENT since it was deployed.
These OIG reports include a March 1998 report entitled "Review of the Immigration and Naturalization Service's Automated Biometric Identification System"; a March 2000 report entitled "The Rafael Resendez-Ramirez Case: A Review of the INS's Actions and the Operation of Its IDENT Automated Fingerprint Identification System"; a follow-up inspection report issued in December 2001 entitled "Status of IDENT/IAFIS Integration"; and another follow-up inspection report issued in June 2003 entitled "Status of IDENT/IAFIS Integration."
See H.R. Conf. Rep. No. 100-979 at 30, accompanying H.R. 4728, 100th CONG., 2d SESS. (1988).
Formed in 1989, WIN/AFIS contains information from state and federal criminal justice agencies in seven Western states. Its database contains about 2.5 million arrest records from those member states and from the INS. Its fingerprint search capabilities are provided by a large-scale AFIS installation in Sacramento, California. An additional unit called the INS WIN/AFIS Service Center provided technical support to INS facilities performing criminal searches on WIN and handled WIN registrations. During the time period under review in this report, the INS WIN/AFIS Service Center operated 7 days per week, 24 hours per day, and was staffed by contract employees who were qualified fingerprint examiners and who could make fingerprint matches.
While the Border Patrol technically could bring this charge for every illegal entry, it is not feasible to bring charges on each apprehended alien because of the effect on prosecutorial, judicial, and detention resources.
The Deming and Santa Teresa stations did not have IDENT/IAFIS workstations at the time of Batres' apprehensions in January 2002. IDENT/IAFIS workstations were deployed to Deming in August 2003, although not yet to Santa Teresa.
NCIC contains information on active wants and warrants. Criminal history information is maintained in the Interstate Identification Index (III). Fingerprint information is maintained in IAFIS. Information in III can be accessed by name or FBI number through an NCIC terminal. The same III information also can be accessed via a fingerprint submission to IAFIS.
See "Review of the Immigration and Naturalization Service's Automated Biometric Identification System," March 1998.
"The Rafael Resendez-Ramirez Case: A Review of the INS's Actions and the Operation of Its IDENT Automated Fingerprint Identification System."
The $38 million included $10 million for IDENT system operation and maintenance costs, but no funds for increased operational costs for the INS.
As of January 2004, the FBI's Criminal Justice Information Services Division had not completed the Attorney General's report.
See OIG report entitled "Status of IDENT/IAFIS Integration," December 2001.
Mexican law enforcement records show that Batres was convicted and jailed in Mexico for additional crimes, although the records of these convictions would not have been available to the Border Patrol or contained in the FBI's criminal databases. Batres was arrested and incarcerated in Mexico in 1993 for the crime of theft of a vehicle and damages, and in September 1995 for the crime of theft of an automobile. Batres also acknowledged in an interview with the OIG being convicted in 1997 in Mexico for the attempted rape of his stepdaughter, and a 1999 or 2000 conviction for the attempted rape of a family friend in Mexico. A 2002 arrest warrant also was on file in Mexico for Batres for the crimes of rape and bodily injuries.
The first download of criminal warrants occurred in August 2001, with the transfer from IAFIS of records for federal fugitives being sought by the USMS.
The NCIC "wants and warrants" database is different from the NCIC Criminal History Check. The wants and warrant database does not necessarily chronicle the offenses for which an individual has been convicted.
The National Law Enforcement Telecommunications System is an international, computer-based message system that links state, local, and federal law enforcement agencies and allows them to exchange data.
A "red-line" hit referred to a lookout in IDENT.
The fingerprint score was a high one, indicating a likely match.
We asked the agent to reconcile how he could have been confident that WIN/AFIS was not going to report a match within the 10-minute time frame, according to IDENT records, from 5:00 a.m. when the agent entered Batres' fingerprints in IDENT, until 5:10 a.m. when he rejected the match in IDENT. The agent could not readily explain this time frame, and said that he remembered interviewing Batres at length, and waiting a longer period of time before denying the hit. The agent said it is possible, however, that he may have interviewed Batres to some degree prior to processing him in IDENT, although he had not initially remembered it that way. Regardless of the precise timing, as discussed below and in Section VI(F)(2)(A), below, we do not believe that the agent contravened established Border Patrol policies in voluntarily returning Batres to Mexico since he informed a supervisor of the lookout and of his proposed actions before Batres was returned. Moreover, WIN/AFIS did not contact the Border Patrol until after Batres had been released.
That same day, the processing agent, the supervisory Border Patrol agent whom he had informed of the hit prior to Batres' release, and the Santa Teresa Patrol Agent in Charge all were required to write memoranda documenting their actions with respect to Batres and explain why he had been returned voluntarily to Mexico.
Four months later, on April 25, 2002, the INS suspended the agent who had detained and processed Batres. The INS charged him with failing to follow El Paso Sector Border Patrol instructions, policy, and procedures by not bringing the possible lookout match to the attention of a supervisor. The agent contested the charges, asserting that: (1) he did not receive Chief Barker's December 14, 2001, memorandum; (2) even if he had received the memorandum, it does not require an agent to affirmatively pursue an answer from WIN/AFIS as to the identification of the detainee; (3) the agent had informed a supervisor of the IDENT lookout and the supervisor had nevertheless approved the release of Batres; and (4) the El Paso Sector did not require that NCIC criminal history checks be conducted on all aliens. We discuss these issues later in the report.
In Multnomah County, judges set the terms of extradition at the time they issue a warrant. There is no standard formula for this decision. Rather, the decision is based on the judge's discretion, taking into account the seriousness of the offense at issue and any recommendation made by the prosecutor in the particular case. The three possible terms for extradition within Multnomah County included: (1) extradition within Oregon only; (2) extradition within a standard "shuttle range" of several states (the option selected in this case); and (3) nationwide or unlimited extradition. Once the warrant is issued, the terms for extradition do not change absent a motion from a prosecutor or another party of interest. The record did not indicate that prosecutors made any recommendations regarding the extradition range in Batres' case.
TCIC is the Texas Criminal Information Center. It is a database managed by the State of Texas that contains criminal history information and outstanding warrants for those individuals arrested and wanted in Texas.
Batres also could have been prosecuted for Entry Without Inspection, pursuant to 8 U.S.C. § 1325. The Border Patrol charges aliens with the misdemeanor offense of "Entry Without Inspection" (EWI), pursuant to 8 USC § 1325, when (1) the alien is apprehended for illegal entry a certain number of times (While EWI charges can be brought based on just one entry, each jurisdiction sets its own "threshold" guidance as to when to bring these charges.); (2) the alien has been previously deported; or (3) the alien has an aggravated criminal record, such as a prior felony. The latter two conditions were both present in the Batres case. Moreover, the charge of EWI is easy to prove. It only requires presentation of the I-213 Form and evidence that the alien at the hearing is in fact the same person listed in the I-213.
See the OIG report entitled "Status of IDENT/IAFIS Integration," June 2003.
NSEERS is a national registry for nonimmigrant aliens arriving from certain countries to the United States, or aliens meeting intelligence-based criteria and identified as presenting an elevated security concern. NSEERS, which collected background, travel, and departure information and fingerprints, was the first step taken by DOJ and then DHS to comply with the congressionally mandated requirement for a comprehensive entry-exit program by 2005. However, NSEERS ended on December 1, 2003, and on January 5, 2004, was superseded by the United States Visitor and Immigrant Status Indicator Technology (US VISIT) program at 115 airports and 14 seaports. DHS officials plan to implement US VISIT at all ports of entry by December 31, 2005. US VISIT requires that most foreign visitors traveling to the United States on a visa have their two index fingers scanned and a digital photograph taken to verify their identity at the port of entry. US VISIT also will begin pilot testing departure confirmation systems at several locations.
ENFORCE is a case management system that documents and tracks the investigation, identification, apprehension, detention, and removal of immigration law violators. The ENFORCE/IDENT Program Office reports to the managers of US VISIT within the DHS.
The Conference Report accompanying the FY 2004 omnibus appropriations legislation directed the DOJ to develop a memorandum of understanding with the DHS and other appropriate federal agencies regarding the continued integration of fingerprint systems.
DOJ also issued a Request for Information for fingerprint technology that could capture the equivalent of 10 rolled fingerprints in less than one minute.
Version 1.1+ workstations can take 10 rolled fingerprints and simultaneously query the IDENT and IAFIS databases to provide a rapid response for potential matches from IAFIS in less than 10 minutes. Version 1.1+ also modified the IDENT photograph for the purposes of electronic booking. DHS officials stated that Version 1.2 also will automatically submit 10 fingerprints to the DHS Biometric Support Center (which maintains the lookout database) in order that the aliens' fingerprints be entered into the lookout database. Version 1.2 also would enable certain IAFIS data to be automatically entered in the associated ENFORCE record. The next version, Version 2, will create within IAFIS an Immigration Apprehension file, consisting of both flat and rolled IDENT fingerprints, which will allow other federal, state and local law enforcement agencies to submit ten-rolled prints for criminal checks against the IDENT fingerprint records.
The front line cost refers to the additional resource requirements for DHS that would result from the increased apprehension of identified criminal aliens. The downstream cost is the operational cost to other agencies that would be affected by the increased apprehension and processing of illegal aliens, such as the United States Marshals Service, Federal Bureau of Prisons, Executive Office for Immigration Review, and the United States Attorneys' Offices.
In addition, another 56 locations (ports of entry, Border Patrol stations, and District Offices) have received the unintegrated Version 1.1.1, which requires that aliens be processed twice in order to check both the IDENT lookout database and the IAFIS criminal history records.
JMD's response to these recommendations is included in the Appendix to this report.
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