Keeping an Eye on the I.N.S.: A Case for Civilian Review of Uncivil Conduct

Use of deadly force by the U.S. Border Patrol (and other immigration officers) and other forms of violence against border-crossing migrants has captured the attention of the agency's leadership, although the response remains equivocal and erratic. In 1993, the then Acting Commissioner of the Immigration and Naturalization Service (INS) pledged to "aggressively pursue[ ]" claims of misconduct and "strictly adhere" to investigative and disciplinary procedures. However, the INS stopped short of endorsing changes in complaint review procedures, such as the call for civilian oversight. A decade has passed since the U.S. Commission on Civil Rights identified serious problems in the INS procedures and recommended changes in a report to the President and Congress. Problems include delays in investigation, lack of public awareness of the process, no acknowledgment of receipt of complaints, deficiencies in the selection of investigators and investigative procedures and an inadequate statistical record of complaints and disposition. The same problems plague the system today, and almost none of the recommendations have been implemented. In this article, the author first documents examples of misconduct by the Border Patrol and other immigration and customs agents and examines the current INS internal complaint system. Next, he sets out some of the necessary features of a civilian or external review process, many of which are embodied in legislation recently introduced in the U.S. House of Representatives, with an emphasis on those features unique to immigrants or immigration enforcement. (An Appendix contains proposed model regulations for an Immigration Law Enforcement Civilian Review Board).Finally, the author lays out some of the alternatives, or complements, to external review and how they are useful or limited in mitigating abusive behavior. Any system must be perceived as accessible, confidential, prompt, impartial and even-handed and policymakers will need to ask themselves how to measure the success of any review board. A review board alone cannot always deter misconduct or provide adequate remedies. Despite the obstacles, lawyers must persevere with civil suits for damages and criminal prosecutions. Nongovernmental organizations must petition human rights tribunals and continue to "mobilize shame" against 'the immigration authorities and the U.S. government in all available forums.