ICE Needs an Ombudsman

By William Fisher

One of the nation’s senior immigration authorities is recommending that the U.S. Immigration and Customs Enforcement agency (ICE) could substantially improve its performance by appointing an Ombudsman “to serve as an internal conscience, taking in reports on individual cases, checking them out, making sure that policy is followed and serving as an internal watchdog.”

The Ombudsman proposal was made by Mary Giovagnoli, director of the Immigration Policy Center, the research and policy arm of the American Immigration Council, in an exclusive interview with IPS.

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) when INS was broken up in 2003 with the creation of the Department of Homeland Security (DHS).

ICE has come under increasing pressure 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.

Giovagnoli says, “It can be argued that the DHS Office of Civil Liberties and Civil Rights is designed to play that function because it investigates allegations of civil rights violations across the Department and attempts to educate Department personnel about proper procedures.”

So why isn’t this sufficient?

Giovagnoli says that the office is small and “tasked with an incredible number of responsibilities. Similarly, the Office of Inspector General clearly has the ability and authority to investigate and monitor abuses within ICE. ICE also has some kind of Office of Professional Responsibility that looks at particular allegations against individual officers.”

“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,” she says, adding:

“An ombudsman would serve as an internal conscience, taking in reports on individual cases, checking them out, 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 on the services side and this led to the creation of an ombudsman's office as a separate entity within DHS. The ombudsman was supposed to monitor USCIS performance and advocate for change with a direct reporting requirement to Congress regarding different legislative proposals and recommendations. Although this model is statutory, 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,” she says.

Giovagnoli says there are particular concerns in implementing the Ombudsman idea for ICE. “You need a structure that is in tune with how the agency works. Thus, 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 who 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.”

She added, “I think we see from the 287(g) report that the expectations for advisory committees (which appear to be just made up of ICE and local law enforcement people) were never met, but I question whether you can have successful oversight committees that don't involve average citizens.”

Giovagnoli was referring to a recent report by the DHS Inspector General (IG) that was highly critical of a program known as 278(g), 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 which they traditional perform,

Giovagnoli told IPS, “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.”

Writer Jeffrey Lubbers points out that ombudsmen are not a new concept both in government and the private sector. About 20 years ago, ombudsman offices began to spread to state and local governments, prisons, universities, newspapers, and corporations. Now federal agencies are jumping on the bandwagon by creating such offices -- in some cases with Congressional blessing or mandates.

Lubbers says, “The ombudsman's role in federal agencies clearly is becoming better known. And there seems to be a fair amount of bi-partisan support for the concept in Congress.”

He adds, “With staff reductions in many agencies, the need for problem resolution between regulators and the regulated (or affected third parties) is becoming more acute. Ombudsmen will have an increasingly important role to play in and for agencies in the years to come.”

Ombudsman is a Swedish word meaning "agent" or "representative," and its Scandinavian origins have been traced to 1274. The first national Ombudsman was established in Sweden in 1809.