Chapter 11 Reporting Convictions and Providing Records of Suspected Aliens to the Immigration and Naturalization Service This chapter addresses the requirements related to reporting of conviction information to the Immigration and Naturalization Service (INS). The status of the State's compliance with this requirement must be addressed separately in the application, as discussed more in Chapter 3, Section 3.1e(2). 11.1 The INS Requirement The Immigration Act of 1990 enacted in November 1990, along with technical amendments to the Immigration and Nationality Act enacted in December 1991, changed Section 503 of the Omnibus Crime Control and Safe Streets Act to require that criminal justice records identify aliens so that conviction records can be shared with the Immigration and Naturalization Service (INS). It requires the States to have a coordination plan with INS as a condition for receipt of Edward Byrne Memorial State and Local Law Enforcement Assistance Formula Grants. The following assurance, which must be signed as part of the application for formula grant funds, was added to the ten assurances already required by Section 503 of the Act: An assurance that the State has established a plan under which the State will provide, without fee to the Immigration and Naturalization Service, within 30 days of the date of their conviction, notice of conviction of aliens who have been convicted of violating the criminal laws of the State and under which the State will provide the Service with the certified records of such a conviction within 30 days of the date of a request by the Service for such record. This provision applies to FY 1991 and subsequent formula grant awards. However, because there was inadequate time for BJA and INS to respond fully to this provision before formula grant applications were due on January 4, 1991, the States were required to assure in their application that they would provide a completed plan, in accordance with BJA guidance, within 120 days after the issuance of that guidance. This date was April 9, 1992, for Phase I of the plan as described in this chapter. The deadline for submission of Phase II of the plan was made concurrent with submission of the State's CJRI Plan. 11.2 Goals of the INS Requirement The implementation of this provision will help INS achieve its Criminal Alien Strategy Goals which are to: Systematically identify, locate, and remove aliens not authorized to remain in the United States because of criminal activity. Ensure the expeditious deportation of convicted criminals, consistent with due process requirements. Create an effective deterrent to aliens seeking to enter the United States to engage in criminal activities. The achievement of these goals will afford State and local agencies benefits in two ways. First, by deporting aliens upon release from prison, the potential for recidivist behavior is reduced. Second, States should realize a cost savings related to correctional supervision (probation/parole) as a result of the prompt deportation of convicted aliens who are not incarcerated. INS estimates that over 10 percent of the inmates in some State prison systems are foreign born and may be subject to deportation. 11.3 Implementation of the Requirement A number of issues are involved with implementing this requirement. 11.3a Definitions Aliens or suspected aliens are defined as offenders who hold a foreign citizenship or who are foreign born. The State is not required to investigate alien status but should forward conviction records for all suspected aliens to INS for verification. For purposes of reporting to INS, conviction is defined as a final criminal conviction of aliens or suspected aliens by a court of competent jurisdiction for which the offender has been sentenced and all direct appeal rights have been exhausted or waived or the appeal period has lapsed. INS can deport many offenders convicted of felonies or certain misdemeanors. SAA's are not expected to make the determination of which types of conviction may lead to deportation; INS will make this determination. States are required to provide information on all felony and misdemeanor convictions for foreign born inmates. States which plan to report to INS through the central repository, but which do not collect information on misdemeanors, should address, in their plan, the feasibility of collecting information on deportable misdemeanors. 11.3b Formatting of Information Reported There is no set format for reporting this information. If INS decides to initiate deportation proceedings, it may request and receive certified records of conviction from the State, without fee. Documents provided in response to such a request must have a certification of authenticity under official seal by the custodian of the records or an authorized deputy. States may choose to provide INS with certified records within 30 days of conviction rather than using the two-step process of providing notification and then providing certified records upon request from INS. Documents which should be forwarded by the State to INS are certified copies of judgement and conviction records and indictment records. Documents must have a certification of authenticity under official seal by the custodian of the records or an authorized deputy. States which have the information required in its criminal history records, maintained by the central repository, may provide INS with notification of conviction through printouts or electronic transmission from the repository, if a mutual system for electronic reporting is established with the INS District Office. An individual at the central repository may be deputized by the appropriate State court/court officer to certify the records of conviction as long as the process for transmission of disposition information from the courts to the repository provides for a secure system, one not subject to tampering. If INS requires additional information regarding a particular conviction, INS officers may request and receive, without fee, certified alien criminal records from the court or, if available, from the central repository. 11.4 Plan for Reporting Convicted Aliens Each State is required to develop a plan for reporting convicted aliens which should describe current efforts, if any, to provide INS with certified records of conviction of aliens or suspected aliens, a review of alternative methods of reporting, recommendations for reporting, and an implementation strategy and schedule. The plan must indicate which agency or agencies will provide the notification of conviction to INS, the method of notification, who INS should contact to request certified records (e.g. court of jurisdiction, central repository) and the procedures to be used for obtaining the certified records. With the agreement of INS, States which cannot comply fully with the requirement immediately, have been allowed to implement a two-phased approach. 11.4a Phase I: Incarcerated Offenders This phase should target serious offenders and should be implemented immediately. At a minimum, the State should provide INS with notification of conviction for aliens sentenced to prison, including those held in local jails awaiting placement in prison. If INS receives this information when the offender is sentenced or enters prison, the deportation hearing can be conducted and arrangements made to deport the offender as soon as the sentence has been served. 11.4 b Phase II: Non-incarcerated Offenders This phase should provide for the establishment of mechanisms and procedures for the transfer to INS of records for all aliens or suspected aliens convicted of deportable offenses. During this phase, such issues should be addressed as how aliens will be identified, where in the process this will occur (e.g., presentence investigation), and who will be responsible for providing the information to INS (e.g., the courts or the central repository). This phase can be addressed as part of the criminal justice records improvement plan or separately submitted prior to submission of the CJRI Plan. 11.5 Compliance Indicators The goal of the plan should be that at least 90 percent of the records of convictions contain information on the Place of Birth of the offender and, if available, the Citizenship and Alien Identification Number and that notification of conviction for aliens or suspected aliens will be provided to INS within 30 days of final conviction. 11.6 INS Plan Update The application should have a separate section which provides an update of the State's implementation of the INS requirement. All States should have an approved plan for Phase I. If the Phase II plan has not been submitted, the update should give a status report and timetable for its submission. For plans already submitted and approved, the application should provide an overview of the status of implementation including problems which have arisen (whether or not resolved), coordination with INS, and other relevant issues. To the extent possible, the update should provide data on the number of suspected aliens reported to INS, number of records requested or provided, and like data.