A Talk With Mary Giovagnoli

The Immigration and Customs Enforcement agency (ICE), part of the Department of Homeland Security (DHS, ) has come under increasing criticism because of its poor treatment of would-be immigrants held in detention – including a number of unreported deaths – lack of medical facilities, administrative bungling resulting in loss of records, and absence of due process for detainees at ICE detention centers.

A recent report by the DHS Inspector General excoriated ICE for substandard management of the 287(g) program, in which local police and sheriffs are given authority to enforce immigration laws. The program has been attacked for encouraging racial and ethnic profiling, using untrained police officers to enforce the highly complex immigration laws, and diverting local law enforcement authorities from the work they traditionally perform.

Mary Giovagnoli, director of the Immigration Policy Center, the research and policy arm of the American Immigration Council, believes that ICE could substantially improve its performance by appointing an Ombudsman “to serve as an internal conscience, taking in reports on individual cases, making sure that policy is followed and serving as an internal watchdog.”

Giovagnoli has a long history of service with government immigration agencies. She served with ICE’s predecessor, the Immigration and Naturalization Service (INS) for almost seven years, and then with U.S. Citizenship and Immigration Services (USCIS) after INS was dissolved in 2003 and its responsibilities transferred to DHS.

IPS correspondent William Fisher interviewed Ms. Giovagnoli.

Q. Isn’t the DHS Inspector General and the Office for Civil Rights and Civil Liberties designed to fulfill the Ombudsman function by investigating allegations of civil rights violations across the Department and attempting to educate Department personnel about proper procedures?

A. These offices are crucial to keeping all of DHS honest, but the problems in ICE require more specialized and ongoing attention. The Office for Civil Rights and Civil Liberties is small and tasked with an incredible number of responsibilities for protecting civil rights across all of DHS. The Office of Inspector General also has competing priorities and therefore must limit its investigations to the most egregious problems throughout DHS. ICE also has an Office of Professional Responsibility that looks at particular allegations against individual officers. But often, these kinds of offices can't focus on the individual run of the mill case where policies and procedures cause the problem rather than any particular wrongdoing on the part of an officer. Because ICE is a law enforcement agency, but one that enforces a wide range of civil laws, its relationship to the community is, I think, unique and complex.”

Q. What specifically would the Ombudsman do?

A. An ombudsman would serve as an internal conscience, taking in reports on individual cases, investigating them, making sure that policy is followed and serving as an internal watchdog. When Congress established DHS, there was considerable concern that the former INS wasn't responsive to the numerous complaints it received. Originally, the ombudsman’s office was intended to cover all immigration matters, but the final legislation only included authorization for oversight of USCIS.

The ombudsman monitors USCIS performance and advocates for change with a direct reporting requirement to Congress regarding different legislative proposals and recommendations. Although this model is written in the law, there is no reason to believe that the Secretary couldn't establish a similar mechanism for monitoring ICE, at least in terms of investigating complaints and making recommendations.

Q. What is required for the Ombudsman idea to proceed?

A. There are several pieces of legislation proposing an ombudsman within the detention context, but we don’t need to wait for legislation. Better oversight should start happening right now. DHS should gather input from affected communities to create a system that will make ICE more responsive.

There are particular concerns in implementing the Ombudsman idea for ICE. You need a structure that is in tune with how the agency works. You have to have a chain of command structure that is respected by the officers -- an ombudsman needs to have sufficient authority to report to someone outside ICE but at the same time be seen as working within and through ICE to solve problems. So access, authority, and ability to make changes is critical.

Then, an ombudsman needs representatives in the field -- ideally, you would have someone responsible for individual districts that would take complaints, gather information, and investigate concerns.

Finally an ombudsman needs a support system from within the community. Ideally, the ombudsman might be the central figure in a range of community oversight boards with the ability to advise and make recommendations to individual offices and to the national office about improved performance and working with the community.”

Q. How would an Ombudsman work with the larger community?

A. We have to change the model of immigration enforcement to reflect community needs and interests. There has been a lot of great thinking along the border about what that might look like in border communities, but we need to expand that thinking to all communities where ICE operates. An ombudsman who spearheaded a group of local community advisory boards would be in a position to speak for all the people who right now find their complaints unanswered whose issues are probably not big enough to get to the level of an IG report.