Report

Depending on how a diversion program is structured, an individual can enter the program either before the disposition of the underlying charge or after a plea is entered. In Maryland, most diversion programs require individuals to enter a guilty plea or accept a Probation Before Judgment (PBJ) – a disposition that the state of Maryland does not consider to be a criminal conviction—in order to participate in the program. This is problematic in the immigration context because of the relationship between these dispositions and grounds of removability under immigration law: a guilty plea or a PBJ is enough to count as a “conviction” for immigration purposes.

Most controlled substance offense convictions automatically trigger removal proceedings, and can lead to harsh consequences, such as deportation and prolonged mandatory detention. Thus, participation in a controlled substance diversion program puts members of Maryland’s large noncitizen community at risk of prolonged detention and possible deportation. That result is punitive and inconsistent with the rehabilitative and community-oriented goals of diversion programs.

A number of other states, including Connecticut and Florida, have diversion programs in place that avoid such harsh immigration consequences. These programs could provide a useful model for Maryland. Notably in Maryland, Howard County, and Washington County have diversion programs that do not require an individual to accept a guilty plea in order to participate, and therefore do not result in a conviction for immigration purposes. These two counties – especially Washington County because of the more expansive number of qualifying offenses for participation in its diversion programs – can therefore provide a model diversion program for other Maryland counties.

Maryland, and specific counties within Maryland with a high number of undocumented residents, should examine and restructure diversion programs so as not to impose convictions on successful diversion program participants.

Federal Agencies Have Taken Steps to Improve E- Verify, but Significant Challenges Remain

What GAO Found

Since GAO last testified in June 2008, USCIS has taken several steps to improve the accuracy of the E-Verify system, including expanding the number of databases queried through E-Verify and instituting quality control procedures. As a result, USCIS data indicate that E-Verify immediately confirmed about 97.4 percent of almost 8.2 million newly hired employees as work authorized during fiscal year 2009, compared to 92 percent from fiscal year 2006 to the second quarter of fiscal year 2007. However, E-Verify errors persist. Also, if an authorized employee’s name is recorded differently on various authorizing documents, the E-Verify system is to issue a TNC for the employee. Because such TNCs are more likely to affect foreign-born employees, they can lead to the appearance of discrimination. USCIS has not disseminated information to employees advising them of the importance of consistently recording their names on documentation provided to employers, and doing so could help USCIS reach its goal to ensure data accuracy. Furthermore, E-Verify remains vulnerable to identity theft and employer fraud. Resolving these issues will be important in combating fraud in the employment verification process.

USCIS has taken steps to minimize risks to the privacy of personal information for new employees who are processed through E-Verify by, among other things, publishing privacy notices for the E-Verify program. However, employees are limited in their ability to identify the source of and how to correct information in DHS databases that may have led to an erroneous TNC. To identify and access the source of the incorrect data, employees must use methods such as Privacy Act requests, which, in fiscal year 2009, took on average 104 days. DHS officials acknowledged that the current process for employees to correct their personal records could be improved and said they are discussing ways to provide employees with better access to relevant information. By developing procedures that could enable employees to effectively correct any inaccurate personal information, DHS components could help employees avoid receiving erroneous TNCs.

USCIS and SSA have taken actions to prepare for possible mandatory implementation of E-Verify for all employers nationwide by addressing key practices for effectively managing E-Verify system capacity and availability and coordinating with each other in operating E-Verify. However, USCIS’s lifecycle cost estimates for E-Verify do not reliably depict current costs (i.e., do not include all costs associated with maintaining and operating E-Verify) and SSA’s estimates do not consider the risk associated with changes in SSA’s E-Verify workload. Without DHS developing reliable life cycle cost estimates for E-Verify, and SSA assessing the risk associated with its E-Verify workload, the agencies are at increased risk of not securing sufficient resources to effectively execute program plans in the future.