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2002
REVIEW OF DEPARTMENT OF JUSTICE IMMIGRATION DETENTION POLICIES
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
DECEMBER 19, 2001
Serial No. 55
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Immigration and Claims
GEORGE W. GEKAS, Pennsylvania, Chairman
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
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ELTON GALLEGLY, California
CHRIS CANNON, Utah, Vice Chair
JEFF FLAKE, Arizona
SHEILA JACKSON LEE, Texas
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
LORA RIES, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
DECEMBER 19, 2001
OPENING STATEMENT
The Honorable George W. Gekas, a Representative in Congress From the State of Pennsylvania, and Chairman, Subcommittee on Immigration and Claims
The Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas, and Ranking Member, Subcommittee on Immigration and Claims
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The Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
WITNESSES
Mr. Joseph R. Greene, Acting Deputy Executive Associate Commissioner for Field Operations, Immigration and Naturalization Service
Oral Testimony
Prepared Statement
Mr. Edward McElroy, New York District Director, New York District Office
Oral Testimony
Prepared Statement
The Honorable Paul H. Thomson, Office of the Commonwealth's Attorney for the City of Winchester
Oral Testimony
Prepared Statement
Ms. Margaret H. Taylor, Professor of Law, Wake Forest University School of Law
Oral Testimony
Prepared Statement
APPENDIX
Page 6 PREV PAGE TOP OF DOCStatements Submitted For The Record
The Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas
The Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
Bishop Thomas Wenski, Auxiliary Bishop of Miami, Chairman, United States
Conference of Catholic Bishops' Committee on Migration
Material Submitted For The Record
Letter from Mr. Ralston H. Deffenbaugh, Jr., President, Lutheran Immigration and Refugee Service
REVIEW OF DEPARTMENT OF JUSTICE IMMIGRATION DETENTION POLICIES
WEDNESDAY, DECEMBER 19, 2001
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
Page 7 PREV PAGE TOP OF DOCThe Subcommittee met, pursuant to call, at 2 p.m., in Room 2237, Rayburn House Office Building, Hon. George W. Gekas [Chairman of the Subcommittee] presiding.
Mr. GEKAS. The hour of two o'clock having arrived, the Committee will come to order.
We note the presence of the lady from Texas, the Ranking Minority Member, and note the presence of the Chair, thus qualifying as a full hearing with the quorum of two being present and in attendance.
The purpose of today's hearing is, as everyone knows by now, to review the policies of the Immigration and Naturalization Service as they pertain to detention, detention of people entering our country and who either come in illegally or do illegal acts thereafter and in some way violate their welcome to our country.
It should be noted that this is not a late awakening on the part of this Committee on the questions of detention, nor were they fomented by the horrific events of September 11, although they have accelerated our interest in it, but rather our interest goes back to years before when we have noted horror stories emerging out of that same detention policy about which we speak. Needless to say, even before September the 11th many of us saw a need for replenishing our knowledge and thinking about the questions of detention, and this hearing is going to focus on some of the what we perceive as flaws and, hopefully, on some of the remedies that have evolved during this time and remedies that may be proposed by members of this panel. So, we are anxious to hear the testimony.
Page 8 PREV PAGE TOP OF DOCThe question of detention that may lead to—or release from detention that may lead to terrorism is not just an imagined possibility, far-flung possibility, but rather the testimony will demonstrate that indeed that is a reality, that release from detention can cause an atmosphere which can create a terroristic act; and, therefore, it is appropriate before September 11, since September the 11th and from now until the foreseeable future.
With that, I yield to the lady from Texas for an opening statement.
Ms. JACKSON LEE. I thank the distinguished Chairman of the Subcommittee.
I welcome the witnesses. I look forward to their testimony.
Mr. Chairman, you are absolutely right. Let me thank you for holding this timely oversight hearing and to reinforce your statement that these issues are relevant preceding September 11 and post September 11. Clearly, what we have the responsibility of doing is fixing whatever is broken. Might I add, however, for those who are part of the INS family who is in the audience, let me also say happy holiday to you, that I believe with the leadership of Commissioner Ziglar we have the opportunity as Members of Congress to work together to solve some of these problems. We simply need to have these problems highlighted so we can collectively and collaboratively work together.
I would be remiss as I review the remarks that I would like to present to this Committee if I don't emphasize another concern or point that I think is extremely important, and that is balance. The INS is charged with both facilitating legal immigration and enforcing the Nation's laws to prevent illegal immigration. That balance should be kept in mind as we explore possible changes to INS policy. It can be both tempting and comforting to err on the side of shutting all our borders tight, locking up all those we think are dangerous. That is not the constitutional bedrock the country was built upon nor the strength of our Nation. However, it is the obligation and right of the Nation to protect its citizens and its sovereign rights.
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I, too, want to be assured that we are not allowing those who wish to do harm to innocent persons into our Nation. We abhor the absolute, unspeakable violence of September 11 when innocent persons were killed on the basis of some of the individuals who came into this country legally, who were overstaying. There is no doubt that we need to confront that.
At the same time, Mr. Chairman, though we may not directly focus on this during this hearing, I cannot help but say that I am greatly concerned about 5,000 individuals who are detained with no understanding to the extent—are they there only because of their ethnic background, their religious background, or are they there for any reason? Five thousand of those individuals, are they providing us with succinct and very crucial information to help us ferret out Osama bin Laden or any other terrorist? If that was the case, I would welcome their detention, but we do not know.
So I think as we look at the question of detention and whether or not the INS has erred and whether or not we need to do more, we must again balance the needs and necessities of this particular act and these particular responsibilities.
This delicate balance can be seen in recent decisions by the Supreme Court, who appear to be moving toward a higher degree of protection of civil liberties for noncitizens, while the Attorney General and the President are seeking additional power to detain aliens who they think might be dangerous.
Under the new PATRIOT Act, the Attorney General only has to certify that an alien is likely to engage in or support a bad act and the alien is subject to mandatory detention. This detention would be mandatory even for aliens who have been granted asylum. This could present problems. If detainees are not allowed an opportunity to contest their likelihood of engaging in terrorist activity, due process problems seem to be certain to arise. These issues of due process and proper balance arise in the area of mandatory detention and the rights of asylum seekers.
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Provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 require mandatory detention of most criminal and certain categories of noncriminal aliens and asylum seekers, taking away the INS discretion to release these groups. Again, as the Chairman referred to, problems preceding before September 11, but this has caused more practical problems like creating the issue of detention space. Where do we house all these people? And what we do want to do with them if they do not pose a credible threat to national security and they are not a danger to the community or risk of flight? What do we do with the children and families who have been detained in very uncomfortable and certainly unsatisfactory conditions?
We will hear testimony today from the INS that, from fiscal year 1994 to 2001, the average daily detention population has more than tripled, from 5,532 to 19,533. And in fiscal year 2000 alone, the INS admitted more than 188,000 aliens into detention.
I have visited detention centers particularly in New York and I do under the crisis that we face. Surely we cannot continue to detain people at that rate.
The New York district model purports to have the answer. In the New York district the number of inadmissible aliens arriving at JFK dropped 63 percent from fiscal year 1992 to fiscal year 1999. The number of asylum applications dropped 91 percent in that same period. This occurred while the passenger traffic increased 18 percent at JFK. The way the New York model does it is by detaining all aliens who are inadmissible for fraud or documented-related reasons.
Is this an applicable model throughout the Nation, and do we have enough beds in-house to house all these persons, and what do we want to do? We do want to stop the types of incidences that occurred in Virginia in the Bell case. We will hear from Commonwealth Attorney Paul H. Thomson.
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Something must be done to prohibit anyone, alien or not, who has a criminal history and is a danger to the community from having uninhibited freedom. We agree with that.
Another possible option comes from the INS detention policy expert Margaret Taylor, Professor Margaret Taylor, who suggests a concept of supervised release as an option to detention. This option was tested from 1997 to 2000 in New York at the request of the INS on noncitizens including asylum seekers, individuals facing removal as a result of a criminal conviction, and undocumented workers apprehended at work sites. The project entailed answering the question of what type and what level of supervision will increase people's rate of appearance in court and compliance with immigration law rulings. Professor Taylor will discuss the results.
Finally, Mr. Chairman, we are not asking for a free-for-all. We are not asking for the terrible tragedy that occurred with those who had visas who entered legally and illegally that perpetrated the heinous crimes of September 11 not being trapped and not being assessed that they were here illegally and therefore procedures not moving forward, but I will say to you that we can do a better job. I believe with the INS committed to helping us do a better job we are getting to the problems and then the solutions. We can do that.
But I simply would say that, even as we attempt to find solutions, let us not be so hasty that the mounting detainees, 5,000 and 10,000 based upon their Muslim background, become the rule of the day and not the exception. We can do better than that here in America.
I thank the distinguished Chairman. I yield back my time.
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Mr. GEKAS. We thank the lady.
Let the record indicate that the gentleman from Utah, Mr. Cannon, is present; that the gentleman from Michigan, Mr. Conyers, the Ranking Member of the full Judiciary Committee is present; and that the lady from California, Ms. Lofgren, is also in attendance.
It is the intent of the Chair to allow each Member to submit an opening statement for the record and thus expeditiously to move to the testimony at hand.
Ms. JACKSON LEE. Mr. Chairman, may I make an inquiry, please?
Mr. GEKAS. Proceed.
Ms. JACKSON LEE. Mr. Chairman, the Ranking Member is here. My understanding was that he wanted to make a few brief opening remarks.
Mr. GEKAS. That is why I asked. If I am persuaded that the gentleman wishes to make opening remarks, which I am, he may proceed.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
Mr. CONYERS. Just a few, Mr. Chairman.
I want to thank Chairman Gekas for his fairness in pulling this together. After all, we did get one out of four witnesses. So that's not so bad, is it?
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But my comment is really centered around the whole question of a mandatory detention. Now, preventative detention is one thing, but mandatory detention really contemplates that, from the beginning, you lock people up; and I think all the witnesses may likely agree that we just don't have the space to lock everybody up that initially comes up on the screen.
So, we have got this problem of locking people up first, and either they through legal proceedings, battle their way out of prison or they get deported as a result of losing their case. Now, it may appeal to the simple of mind that that is—that what is wrong with that? But the answer is, plenty. We aren't set up to do it. So I don't want to go back into 1996 legislation with this kind of a circumstance.
Secondly, are we sure that this is the best use of resources, to incarcerate people who don't even present a risk that neither the courts or the U.S. Attorney can determine exists? So there is a very practical aspect about this that I am hoping will be fairly considered here with all the witnesses that are before us.
In 1996, we tore families asunder by sending detainees to prisons, and was this an accident a long way from home? I mean, it looks like we are trying to create more problems on the home front than are necessary. So the question that might be considered maybe after this is the detention of hundreds of people, maybe over a thousand, that have followed the September 11 tragedy that we have got to find out what is going on there.
You know, in the Detroit area, the Chief of Police in Detroit refused to send the letters out. So here was the poor U.S. Attorney in his first week on the job, the first thing he had to do, poor Jeffrey Collins, is send out these friendly letters. And, to his credit, he put the best face on it. He said, you know, we could just go out and ask your employer and your neighbors what all the things we want to know or we could send you a letter and invite you to come in.
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That sounds like the better course, if you think either course is what we should be doing. So here we go. I appeal to my friend of great seniority that chairs the Committee that we consider at your earliest convenience what we are going to do with all these people that are being rounded up, being sent letters—and, yes, somebody may have overstayed the terms of their visa, but I don't think INS, of all the agencies and all the Government—I mean, these are the least likely people, with all due respect to them and their—there is a new leadership crew now, but in the past even the ones that I knew and liked, they couldn't get the ball down the field. Something like the Detroit Lions. I mean, it was just difficult.
Mr. GEKAS. It can't be that bad.
Mr. CONYERS. It was that bad. Almost that bad. Nothing is really that bad. But I thank the Chairman.
Ms. JACKSON LEE. You are from——
Mr. CONYERS. I am from Detroit where the Lions come from. Thank you very much.
Mr. GEKAS. We thank the gentleman.
Let the record also indicate that the gentleman from Texas, Mr. Smith, former Chairman of this very Committee, is in attendance.
Page 15 PREV PAGE TOP OF DOCWith that, we will proceed with the introduction of the witnesses.
First, we introduce Joseph R. Greene, the Acting Deputy Executive Associate Commissioner for Field Operations at INS headquarters. He received his master's degree in philosophy from Fordham, has served with the INS since 1973 in a variety of positions. For instance, he started out as an immigration inspector at JFK, promoted to criminal investigator. In 1980, he transferred to the Miami district office as an immigration examiner. He also served as supervisory special agent in Miami.
He supervised the criminal investigation of Bhagwan Shree Rajneesh, an Indian guru whose cult intended to take over a small town in central Oregon. For his work he was awarded the Attorney General's Award for Distinguished Service and was appointed Deputy District Director for the Portland District.
In January, 2001, he assumed the position of Assistant Commissioner for Investigations and is currently acting as Deputy Executive Associate Commissioner for Field Operations. He directs the operational activities for all INS enforcement programs throughout the United States and nationwide.
After him, we will come to the testimony of Edward J. McElroy, the District Director of the New York District of the Immigration and Naturalization Service. He graduated from Fordham University with a bachelor of science degree, served in the United States Air Force, began his INS career as a special agent in Newark, New Jersey, transferred to the New York district in 1985 where he served in various managerial positions including Assistant District Director for Detention and Deportation. He has served as the district director of the New York district as of 1994.
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In connection with his testimony I will, without objection, be entering into the record a document prepared by Mr. McElroy's office titled: New York District Detention and Parole Policy, an Overview. This document lays out the parole and release policy of the New York district office and its reasons for adopting that policy. This was presented to my staff during an oversight trip to Mr. McElroy's office in October. Information relating to specific individuals in this document has been redacted to ensure those individuals' privacy. In offering this document, I make no representations with respect to same but believe that it will assist this Subcommittee in its consideration of these issues.
[The information referred to follows:]
Mr. GEKAS. He is joined at the table by Paul H. Thomson, Commonwealth's Attorney for the City of Winchester, Virginia, first elected Commonwealth's Attorney for Winchester in 1985. He is a graduate of Washington and Lee University in Lexington, Virginia, captain of both the cross-country and track teams for 3 years at Washington and Lee, served in the United States Army in the 137th arctic and mountain field artillery in Fort Richardson, Alaska, attended the University of Puget Sound School of Law in Washington State and worked as a back county ranger at Olympic National Park in Port Angeles, Washington, before returning to Lexington, Virginia.
He is a graduate of Washington and Lee School of Law in June 1983. Active professionally, board member of the Virginia Association of the Commonwealth's Attorneys, instructor for the Rappahannock Criminal Justice Academy, and guest teacher at the University of Virginia Law School, active in the community, recipient of the 2000 Preservation of Historic Winchester Elsie Rosenberger Award for Outstanding Volunteer Service.
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Then the final witness would be Margaret H. Taylor, Professor of Law, Wake Forest University School of Law, graduate of Yale Law School where she was editor of the Yale Law and Policy Review and University of Texas at Austin where she was Phi Beta Kappa. Author of various articles on immigration law, including, Promoting Legal Representation for Detained Aliens: Litigation and Administrative Reform; and the 1996 Immigration Act, Detention and Related Issues. She has spoken before numerous organizations, including the Migration Policy Institute and the Criminal Justice Institute at Harvard Law School; and she is a member of the American Bar Association's Coordinating Committee on Immigration Law.
As is the custom, we will entertain the written statements of each of the witnesses and, without objection, include them initially and finally as part of the record. In the meantime, we will ask the witnesses to try to review that written testimony within a bank of 5 minutes which we will be according by a timer to each of the witnesses. We will proceed as they were introduced, with the first testimony being from Mr. Greene, after we do further housekeeping and note the presence of the gentleman from California, Mr. Gallegly, a Member of the Committee, who is now in attendance.
Mr. GEKAS. Mr. Greene, you may proceed. Five glorious minutes are yours.
STATEMENT OF JOSEPH R. GREENE, ACTING DEPUTY EXECUTIVE ASSOCIATE COMMISSIONER FOR FIELD OPERATIONS, IMMIGRATION AND NATURALIZATION SERVICE
Page 18 PREV PAGE TOP OF DOCMr. GREENE. Thank you, Mr. Chairman, and thank you Members of the Committee. I would like to thank the Committee today for the opportunity to testify. It is my pleasure to discuss with you detention policy in the INS from a national perspective.
Mr. GEKAS. Is the mike on?
Mr. GREENE. Is the mike on? Okay. My apologies, sir.
As I said, I will be discussing providing the Committee with information with respect to the INS detention policy from the national perspective. I leave it to my colleague, Mr. McElroy, to discuss the particular situation in New York.
As you know, since 1995 the Congress has worked very closely with the INS in increasing our capabilities and strengthening our capabilities to detain people who are in the United States in violation of law. We have seen, as Congresswoman Jackson Lee indicated, a dramatic growth in the INS's capabilities to deal with the problem of illegal detention and removal; and, in fact, at the same time INS detention policy has evolved and has been crafted to reflect a wide spectrum of public policy issues.
There is a public interest in maintaining and promoting an orderly immigration system. There is a public interest in the infective enforcement of the immigration law. There is a public interest in maintaining an effective detention management system that reflects the proud tradition of jurisprudence with regard to due process in this country. There is a public interest in discharging our treaty obligations and our duty to protect bona fide asylum seekers in this country. There is a public interest in discouraging people from attempting to evade or abuse our generous immigration laws. There is a public interest in protecting public safety.
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Within this context, we have crafted a national immigration detention policy that sets standards and accounts for local needs and requirements. Those national standards are contained in the 12 detention standards with which this Committee is well familiar, having to do with attorney access, having to do with counselor access. These are standards that evolved over a period of years and go directly to the professional standards that the American Corrections Association uses for all jails across the country.
But the policy establishes within it four priorities which are contained in the testimony. I will just review them briefly.
The first priority is mandatory detention requirements where the statute requires that the person in our custody shall be detained.
The second category deals with other criminals who are not subject to mandatory detention, including security and related crimes, aliens who are deemed to be a community or a flight risk and alien smugglers.
The third category includes inadmissible noncriminal aliens, aliens who have committed fraud or were smuggled into the United States, aliens who are captured at a work site in violation of their immigration status.
Finally, category four includes noncriminal border apprehensions, other aliens not subject to mandatory detention, aliens placed in 240 proceedings and for which bonds are set.
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These are the national standards that are put into place, but importantly—the most important aspect of the INS detention policy is that each case requires a case-by-case evaluation that balances the various factors that we have discussed, that attempts to balance the various responsibilities that the Immigration Service has in connection with a public interest.
You know that when district directors such as Mr. McElroy and the position that I held in Denver for 11 years, you know that the three basic criteria that we look at when we make a decision to put somebody—to hold them in INS custody is whether they qualify under the mandatory detention mandate, whether they are a threat to public safety, and whether they are likely to abscond; and each district director reviews each individual case with an eye to those requirements.
Since the terrorist attacks of September 11, this policy, like all of the policies within the Government, has been subject to a review; and although the INS began a wall-to-wall review of detention policy within the framework of its national detention strategy, I can tell you that this effort has assumed new urgency since the attacks occurred.
We look forward to working with the Committee. We look forward to a fulsome discussion today. I will be happy to answer your questions after the statements are completed.
Mr. GEKAS. Thank you.
Page 21 PREV PAGE TOP OF DOC[The prepared statement of Mr. Greene and Mr. McElroy follows:]
PREPARED STATEMENT OF JOSEPH GREENE AND EDWARD MCELROY
Mr. Chairman and Members of the Subcommittee, I am pleased to have the opportunity today to testify on ''The Department of Justice Immigration Detention Policies.'' Strengthening the nation's capacity to detain and remove criminal and other deportable aliens is a key component of the Immigration and Naturalization Service's (INS) comprehensive strategy to deter illegal immigration and protect public safety. We believe that with the strong support from the Congress, INS has increased its effectiveness in the apprehension, detention and removal of criminal aliens and violators of immigration laws from the United States.
GENERAL OVERVIEW OF INS DETENTION POLICY
With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress expanded the number of crimes that made people subject to removal. It also eliminated INS' discretion to release certain aliens by requiring that virtually any non-citizen subject to removal on the basis of a criminal conviction, as well as certain categories of non-criminal aliens, be detained without bond. As a result of IIRIRA, INS is required to detain a much larger number of people.
The provisions in IIRIRA requiring mandatory detention, along with the rise in sophisticated smuggling operations, and the increase in the number of criminal aliens have resulted in the need for significantly more detention space. From Fiscal Year (FY) 1994 to FY 2001, the average daily detention population has more than tripled from 5,532 to 19,533. In FY 2000 alone, INS admitted more than 188,000 aliens into detention. In fact, the average daily population of criminal aliens in detention between FY 1994 and FY 2001 more than tripled from approximately 3,300 to 13,210. At the same time, the number of criminal aliens removed by INS more than doubled from 32,512 in FY 1994 to 70,873 in FY 2001.
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Currently, there are approximately 20,000 aliens detained by the INS while in immigration proceedings or awaiting removal after being issued a final order of removal. Of the aliens currently being detained, sixty-five percent are criminal aliens. INS detainees are housed in a variety of facilities across the country. The INS has access to 21,304 beds to detain aliens either at INS-owned and operated facilities or in state, local or FY 2001 was 40 days while the median length of stay was 14 days. Since FY 1995, total removals have increased 155 percent to nearly 176,000 in FY 2001. The Detention and Removal program currently employs 212 Detention and Deportation Officers, 617 Deportation Officers and 1,797 Detention Enforcement Officers.
INS detention policy sets forth guidelines for determining priorities in which aliens should be detained. This policy sets forth four major categories of aliens and classifies these individuals as required detention, high priority, medium priority and lower priority. The four categories are: Category I—mandatory detention; Category II—includes security and related crimes, other criminals not subject to mandatory detention, aliens deemed to be a danger to the community or a flight risk and alien smugglers; Category III—includes inadmissible non-criminal aliens (not placed in expedited removal), aliens who committed fraud or were smuggled into the United States, worksite apprehensions, and Category IV—includes non-criminal border apprehensions, other aliens not subject to mandatory detention, aliens placed in expedited removal referred to Full 240 procedures.
When an alien is apprehended at or near the border by a Border Patrol Agent (BPA), the alien is usually transported to the Border Patrol Station by the apprehending agent. Once the Border Patrol decides to proceed with the administrative or criminal processing of an alien, the detention process begins. There are three reasons INS detains an alien: risk of flight, risk of danger to the community, and requirement of law (such as mandatory detention of certain aliens). Once charged, aliens detained by the INS are either in proceedings before an Immigration Judge to determine whether or not they are eligible to remain in the United States, or they already received final removal orders and are awaiting removal from the United States.
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MANDATORY DETENTION PROVISIONS
Detained aliens primarily fall into two general categories—those being detained during immigration proceedings and those that have already been issued removal orders and are waiting to be removed. Many aliens currently detained by INS are subject to mandatory provisions under the Immigration and Nationality Act (INA). There are two major categories of aliens subject to mandatory detention—arriving aliens placed in expedited removal proceedings (section 235 of the INA) and aliens subject to mandatory detention under section 236(c) of the INA. The latter group includes all aliens chargeable as terrorists and virtually all aliens who are chargeable as criminals. Additionally, aliens subject to final orders of removal as criminals or terrorists are also required to be detained in order to effectuate their removal from the United States.
BOND/PAROLE DETERMINATIONS:
Once arrested, an alien who will be placed in removal proceedings must be transported from the point of arrest to a processing center or District Office to be processed into custody. If there is no legal requirement for mandatory detention, significant risk of flight or danger to the community, an alien may be released on his or her own recognizance, bonded out (see INA section 236(a) for general bond authority), or paroled into the community. Aliens who are eligible for bond are also eligible for a bond redetermination hearing before an Immigration Judge. In general, detention determinations are based on the danger posed by the alien to the community and the likelihood that he or she will appear for all scheduled hearings. Factors that the INS considers in making this determination include: prior criminal history, the severity of the crimes for which the alien was convicted, history of failure to appear for court, equities in the United States and evidence of ties to the community, availability of relief from removal and the likelihood of relief being granted, and prior immigration violation history. These factors have been repeatedly upheld by Immigration Judges and the Board of Immigration Appeals (BIA). In cases where an arriving alien asserts an asylum claim, INS policy favors release from custody if the alien is found to have a credible fear of persecution. (8 CFR 235.3).
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In a bond redetermination proceeding, the Immigration Judge reviews the previous INS determination as to the alien's dangerousness and the possibility that he or she may not appear for hearings if released. The Immigration Judge may base that determination on any information that is available or that is presented by either party. Both the INS and the alien have the right to present evidence and witnesses to the Immigration Judge. The bond hearing is separate and apart from the removal proceeding. At the conclusion of the bond hearing, the alien or the INS may appeal the Immigration Judge's bond decision to the BIA.
POST-ORDER DETENTION & RELEASE DETERMINATIONS
Section 241(a) of the INA authorizes the Attorney General to detain aliens who are subject to final orders of removal in order to effectuate their removal from the United States. While detention following a final order is often discretionary, the INA provides for mandatory detention of criminal and terrorist aliens with a final order of removal. Section 241(a)(1) of the INA provides, as a general rule, that an alien with final orders shall be removed within 90 days. Following the 90-day removal period, the Attorney General has the authority to continue detention of certain aliens, including those determined to be a danger to the community or unlikely to comply with a removal order. The standards for determination of release for aliens subject to a final order of removal are set forth in 8 CFR 241.4. That regulation provides for automatic administrative custody review procedures for non-mandatory detention aliens at multiple levels and at periodic intervals. This review process provides the alien with numerous opportunities to provide evidence in support of release.
In Zadvydas v. Davis, 121 S. Ct. 2491 (2001), the U.S. Supreme Court held that under section 241(a)(6), the INA generally permits detention of aliens under a final order of removal only for a period reasonably necessary to carry out their removal from the United States. The Supreme Court held that detention of such aliens beyond the statutory removal period for up to six months after entry of a final removal order is presumptively reasonable. (121 S.Ct. at 2504–05). After six months, if an alien can demonstrate that there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must rebut the alien's showing in order to continue detention of the alien. Additionally, the Supreme Court recognized that there may be special circumstances, such as those involving terrorists or especially dangerous individuals, in which continued detention may be appropriate even if removal is unlikely in the reasonably foreseeable future. (Id. At 2505). The Court's decision does not apply to arriving aliens—those still technically at our borders and paroled in (including groups such as Mariel Cubans who are treated as still seeking admission). Based on the Supreme Court's decision, the INS recently issued regulations implementing the decision and setting forth the new review process. (66 FR 56967, November 14, 2001)
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IMMIGRATION HEARINGS AND REMOVAL
When an apprehended alien decides to exercise his or her right to a hearing, the alien must await proceedings before an Immigration Judge. This process takes place under the auspices of the Executive Office for Immigration Review (EOIR). There are a number of potential outcomes to these hearings. If the alien is eligible for a bond redetermination hearing, that will be held first. Once a decision on the bond is made, another hearing is typically held to consider the removal charge. The most common outcome of the removal proceeding is a final order of removal. In such instances, the Immigration Judge has determined that an individual is removable from the United States or ineligible for admission into the United States.
During the removal hearing process, an alien may be granted relief, such as asylum, as a result of the facts presented at his or her hearing, the alien may be permitted to withdraw his or her application for admission, or the case may be terminated outright if it is determined that the removal charge is not sustainable or evidence comes to light that the alien is lawfully present.
An alien who has been ordered removed may pursue an appeal of the Immigration Judge's decision. Appeals of immigration hearings are the jurisdiction of the BIA. The BIA decisions may be appealed by aliens to the U.S. Courts of Appeals, thus moving from the administrative law process in the Executive Branch to the U.S. Courts for a final decision. The final authority for immigration appeals is the U.S. Supreme Court. The time it takes to proceed through the appellate process can be significant and often places a burden on INS to provide long-term detention. Another avenue for effecting an alien's removal is by reinstating a prior final order of removal. When an alien previously removed from the United States re-enters illegally, Sec. 241(a)(5) provides for reinstatement of the removal order.
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RELEASE POLICY IN NEW YORK DISTRICT
INS policy requires a case-by-case custody determination for aliens determined to have passed the credible fear threshold. This policy balances the need to detain people in order to protect the public safety and ensure appearance for immigration hearings, and humanitarian concerns such as family reunification and medical history.
The decision of how to achieve this balance takes into consideration many national and local factors. The danger to the community, availability of appropriate detention space, the alien's identity, and family or community support, etc., are some or all of the factors considered in determining whether an alien will comply with the terms of their release from custody.
The New York District Office, as do all District Offices, examines these factors in each individual case before reaching their conclusion. The New York District is unique as compared to other INS districts in that it has two contract detention facilities dedicated solely to asylum seekers. As a result, almost all aliens are available for immigration proceedings and can be easily removed upon the issuance of a final order of removal. In September 2000, the General Accounting Office (GAO) issued a report on the expedited removal process. As part of that report, GAO determined that 42 percent of aliens who claimed credible fear and were released subsequently failed to appear at their immigration hearing and were issued an order of removal in absentia (termed ''absconders''). The New York District has an absconder rate of 28 percent for this class of aliens. GAO recommended that INS analyze the characteristics of aliens claiming credible fear who appear for hearings and those who are absconders and use these results to re-evaluate existing policy on releasing aliens who claim credible fear. INS has contracted with a private company to accomplish this task. This analysis will examine the same database as that was used for the GAO Report and will then expand the database to look at many variables to determine which, if any, affect the rate at which an alien absconds. The results from the GAO study are disturbing. However, INS is taking into account GAO's recommendations in the study currently being conducted, and will make adjustments to the INS release policy as appropriate.
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Commissioner Ziglar recently announced an initiative to enter the names of all aliens with final orders who fail to appear for removal into the Federal Bureau of Investigation's National Crime Information Center (NCIC). Previously, INS had only entered the names of criminal aliens and deported felons into NCIC. Entering the names of all absconders into NCIC will allow for increased identification and apprehension of those who fail to comply after completing the judicial process and receiving a final order of removal.
In conclusion, INS, with the help of Congress, has made great strides in the effective enforcement of our immigration laws. I stand ready to work with you as the INS continues to protect public safety while providing safe and humane treatment to all individuals in our custody. Thank you for the opportunity to appear, Mr. Chairman. I look forward to your questions.
Mr. GEKAS. We now turn to Mr. McElroy.
STATEMENT OF EDWARD McELROY, NEW YORK DISTRICT DIRECTOR, NEW YORK DISTRICT OFFICE
Mr. MCELROY. Thank you, Mr. Chairman.
First, I would like to acknowledge Congresswoman Lee for coming to New York and visiting our Wackenhut facility and taking an interest in our detainees and how we are treating people there.
Page 28 PREV PAGE TOP OF DOCI would also like to recognize Congressman Gallegly for his trip to JFK, at which time I told him that I would not be turning out people with rose-colored glasses. What you see is what you get. If you want a direct answer, ask a direct question and you will get it. And I believe he got all of those things but not the rose-colored glasses.
Now, with regard to detention policy in New York, I wish to take you back to the early 1990's when the New York district was overrun by inadmissible aliens, many of whom filed for asylum and were then paroled into the U.S. For a hearing at which they never appeared. The parole policy at that time, coupled with the offer of employment authorized, led to abuse of the asylum process.
With the elimination of employment authorized and liberal parole policies as magnets to attract people, the number of inadmissible aliens arriving at JFK has declined 70 percent, from 14,688 in 1992 to 4,501 in 1997. At the same time, the number of asylum seekers dropped 93 percent, from 9,180 in 1992 to 620 in 1997. In fiscal year 1992, 63 percent of inadmissible aliens applied for asylum. Five years later, only 14 percent applied.
The results of the New York district's policy have been an effectively controlled port of entry, a weaker draw for those contemplating illegal entry and an effective counterterrorism element.
In considering these numbers, one must ask themselves—the question begs, where did the people go? If they knew they were coming into New York as being undocumented or photo substituted documents and they were facing detention, my belief is that they took alternate routes. So the criticism of the policy is, did I inconvenience people in having them go to another port of entry other than New York?
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In section 602 of the Illegal Immigration Reform and Immigrant Responsibility Act entitled Limitations on Use of Parole, Congress amended the Immigration Nationality Act to authorize parole only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Clearly, Congress intended to give INS the tools needed to tighten up a parole policy which had been abused by illegal immigrants.
That Congress intended to be more restrictive in granting parole is evident from the words ''limitations on use of parole.'' still, the New York district does grant parole in appropriate situations. In the period April 1997 to early 1999, of 63 aliens paroled into the local community, 41 percent failed to appear for hearings and only 2 percent were granted asylum.
One thing I believe we should consider, ladies and gentlemen, is the difference between an asylee and a refugee. A refugee is an individual outside the United States who is applying through the U.S. Embassy for the right to come to the United States. An asylee is someone applying for asylum in the United States. Oftentimes, these people have transversed various countries and just presented themselves. Is there a dual standard here where we hold off refugees and we entertain people coming into the country with fraudulent documents that have the methods, means, and money to get here as opposed to refugees who did not?
Parole of all aliens found to have credible fear is not consistent with law, nor is it in the best interest of the United States. Inspectors refer all aliens who express any hint of credible fear or intention of filing asylum. Regardless of reason, they are referred. The asylum prescreening officers are instructed to give aliens every benefit of doubt in credible fear interviews. The result is that, of cases detained at Wackenhut, asylum was granted in only 34 percent of the cases where credible fear was found. And though section 235(b) defines credible fear as meaning a significant possibility that the alien could establish eligibility for asylum, that standard is not always met.
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Since January, 1998, all but 30 cases referred by JFK Airport were found to have credible fear. Since the beginning of expedited removal process in April, 1997, 95 percent of all asylum prescreening officer decisions have resulted in the findings of credible fear.
Ladies and gentlemen, are we dealing with an absolute value that anyone who asks for credible fear receives it or almost, with the exception of 5 percent? As most credible fear referrals involve aliens who arrive in the U.S. With fraudulent or no documentation, it is often impossible to identify them and/or obtain immigration records until far in the process.
I think it was demonstrated with Mr. Gallegly's group. I provided them the opportunity to meet with individuals in secondary inspection to question them themselves to see if they could make a decision within the 45-second to 1-minute time period in which Congress expects the Immigration Service to clear a flight within the 45-minute time period. Paroling such aliens is not in the best interest of the United States.
The negative acts of Gazi Mazir, the Brooklyn subway bomber, and Ramzi Yousef, one of the first World Trade Center bombers, is an indication of what can be expected should the service parole those who are found to have credible fear and turn out to be less than genuine asylum applicants.
As a reflection on how the policy serves as a deterrent to illegal immigration asylum fraud, the numbers speak for themselves. Reverting to policies that are proven ineffective would only serve to send a signal to those who are seeking to establish themselves in the United States illegally that, despite Congress, despite the commissioners border control priorities, and despite the interests of the United States, the Service does not intend to take its mission seriously. That is not the case. We take it seriously, and we always will.
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Thank you, Mr. Chairman.
Mr. GEKAS. We thank the gentleman.
[See page 17 for the Prepared Statement of Mr. McElroy.]
Mr. GEKAS. We turn to Paul Thomson.
STATEMENT OF THE HONORABLE PAUL H. THOMSON, OFFICE OF THE COMMONWEALTH'S ATTORNEY FOR THE CITY OF WINCHESTER
Mr. THOMSON. Thank you, Mr. Chairman and Members of the Subcommittee.
My name is Paul Thomson, and I am the elected prosecutor for the small town of Winchester, Virginia, which is about 60 miles west of here. I prosecuted the case of Edward Nathaniel Bell, which was a capital murder case in Winchester, and Mr. Bell is now sitting on death row in Virginia pending his appeal. I believe the facts of this case demonstrates in stark terms the need for immigration detention reform.
On October 30, 1999, Winchester police officer Rick Timbrook was shot in the face at close range by Mr. Bell and killed as Officer Timbrook was trying to arrest him. At the time of the killing, the defendant, Mr. Bell, was on liberty on a $3,500 bond pending a removal proceeding in the immigration court in Arlington, Virginia. The INS had arrested, charged and detained Mr. Bell on grounds that he had been convicted of a concealed weapons offense in Winchester on August 26, 1997. The officer who had arrested Mr. Bell was Rick Timbrook in 1997.
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Mr. Bell was admitted in the United States as a permanent resident alien 1992 from his native country of Jamaica. On May 16, 1997, Sergeant Timbrook had arrested him for possessing a loaded handgun which was concealed. That case went to trial. It was appealed to the circuit court, and he was convicted by a circuit court judge.
Immigration agents were called by my office to assist in the apprehension of Mr. Bell both in his lower court conviction stage and later in his circuit court stage. They appeared, Mr. Bell appealed to the circuit court. He was then convicted, and then approximately 8 to 9 months later he was apprehended by INS agents on that conviction. He was detained on their recommendation of a $6,500 bail. He then requested a bail determination proceeding, which he was granted; and the judge reduced the bond to $3,500, which he posted.
During the process of fighting his removal, he obtained several continuances from the immigration court throughout 1998 and 1999. During the pendency of these proceedings not only did he kill the officer during this period of time before his final hearing but he also committed other crimes throughout that period of time which the INS should have been aware of and he should have had his bail revoked on.
Based on my extensive experience with this small town in dealing with Mr. Bell, I came to the firm conclusion that any alien in this status who is caught committing a weapons offense as defined by the United States Code should be detained without benefit of bond during removal proceedings. These removal proceedings should be accelerated on the immigration court docket for speedy disposition of cases involving dangerous resident aliens.
Page 33 PREV PAGE TOP OF DOCDangerous criminals like Mr. Bell have no business being released whatsoever. They have the greatest motive to seek revenge, as is what happened here, or to run.
Obviously, tougher pretrial detention and release requirements would have seriously impaired Mr. Bell's ability to greatly harm law enforcement officers in the community. However, in my opinion, detention eliminates all risk of harm and would save, in my opinion, precious INS resources. For example, releasing a defendant on bond pending removal presents INS agents with the difficult task of tracking down potentially dangerous criminals who are motivated to kill Government agents associated with their deportation hearings.
Also, the immigration pretrial supervision of Mr. Bell was nonexistent. There was no home electronic monitoring or other meaningful intensive reporting requirements, nor was there any curfew imposed on the defendant.
The time of the murder of Sergeant Timbrook was midnight on October 30, 1999. At this time resident alien Nathaniel Bell was on the streets of Winchester, Virginia, driving a stolen car, in possession of cocaine with intent to distribute it, which he was subsequently convicted of at his capital murder trial, and in possession of a hand gun with extra ammunition. He was also convicted of an exile offense at his murder trial. Further, Mr. Bell was particularly well known to display his hatred toward the police and Sergeant Timbrook in particular.
In conclusion, today my narrow recommendation to this Subcommittee is that Federal law be changed so that aliens who are charged with committing weapons offenses as defined in United States Code be immediately detained. They should not be afforded bail pending deportation hearings.
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In the alternative, Federal law should provide for strong presumption of no bond unless and until a thorough background investigation is completed by INS agents in cooperation with local law enforcement.
Thank you.
Mr. GEKAS. We thank the gentleman.
[The prepared statement of Mr. Thomson follows:]
PREPARED STATEMENT OF THE HONORABLE PAUL H. THOMSON
Dear Chairman Sensenbrenner:
My name is Paul H. Thomson and I am the prosecuting attorney for the small city of Winchester, Virginia. I prosecuted the case of Commonwealth of Virginia v. Edward Nathaniel Bell, Winchester Circuit Court Docket No. 99-CR-478, Virginia Supreme Court Appellate Record No. 011777(2001). In this case, the defendant was sentenced to death on May 31, 2001, for the murder of Winchester Police Officer Sergeant Rick Timbrook while he was in the line of duty. The facts of this case demonstrate in stark terms the need for immigration detention reform.
On October 30, 1999, Winchester Police Officer Sgt. Rick Timbrook was shot in the face at close range and killed by resident alien Edward Nathaniel Bell as Timbrook attempted to arrest him. At the time of the killing, Bell was at liberty on a $3,500 bond pending a removal proceeding in the Immigration Court, Arlington, Virginia. The I.N.S. had arrested, charged and detained Bell on the grounds that he violated Section 237(a)(2)(C) of the Immigration and Naturalization Act (as amended) in that he had been convicted of a weapons offense in Winchester on August 26, 1997.
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The defendant Eddie Bell was admitted into the United States of America as a resident alien in 1992 from his native country of Jamaica. On May 16, 1997, while living in Winchester, Eddie Bell was caught in possession of a concealed and loaded handgun by the very officer he murdered two years later—Sgt. Rick Timbrook. Bell was convicted of this offense in Winchester Circuit Court on August 26, 1997. Bell was arrested by I.N.S. agents on September 17, 1998, and was detained on $6,500 bail pending removal and deportation proceedings. Bell requested that the Immigration judge reduce his bail and it was reduced to $3,500 on October 8, 1998. He made bond at this amount and he was released on October 9, 1998.
Bell began fighting the removal proceedings. He obtained several continuances from the Immigration Court throughout 1998 and 1999. During the pendency of these proceedings, not only did Bell shoot and kill Sgt. Timbrook, but he also committed other crimes that he failed to reveal on a subsequent application to become naturalized. Bell was scheduled for a final hearing in Immigration Court on November 2, 1999, several days after he killed the police officer.
Based on my extensive experience with this case, I came to the firm conclusion that any alien caught committing a weapons offense as defined in Section 921(a) of Title 18, United States Code, should be detained without benefit of bond during removal proceedings. Further, these removal proceedings could be accellerated on the Court docket for speedy disposition of cases involving dangerous resident aliens. Dangerous criminals like Bell have no business being released. They have a great motive to seek revenge as happened here, or to run.
Page 36 PREV PAGE TOP OF DOCObviously, tougher pre-trial detention and release requirements would have seriously impaired Bell's ability to greatly harm law enforcement officers and the community. However, detention eliminates all the risk of harm and would save precious I.N.S. resources. For example, releasing a defendant on bond pending removal presents I.N.S. agents with the difficult task of tracking down potentially dangerous criminals who are motivated to kill government agents associated with their deportation proceedings. Also, the Immigration pre-trial supervision of Bell was non-existent. There was no home electronic monitoring or other meaningful intensive reporting requirements or curfew. The time of the murder was midnight on October 30, 1999. At this time, Bell was on the street in Winchester driving a stolen car, in possession of cocaine with the intent to distribute it, and in possession of a handgun with extra ammunition. Further, Bell was well known to constantly display his hatred towards police and Sgt. Timbrook in particular.
In conclusion, my narrow recommendation is that federal law be changed so aliens who are charged with committing weapons offenses be immediately detained and they should not be afforded bail pending deportation hearings. In the alternative, federal law should provide for a strong presumption of no bond unless and until a thorough backgound investigation is completed by I.N.S. agents in cooperation with local law enforcement. Thank you.
Mr. GEKAS. Let the record now indicate that the lady from Pennsylvania, Ms. Hart, has come to the Committee hearing as well as the gentleman from Massachusetts, Mr. Frank, and the gentleman from California, Mr. Berman.
We will proceed with the testimony of Professor Taylor.
Page 37 PREV PAGE TOP OF DOCBefore the lady begins, we note that the gentleman, Congressman Flake, is also present.
STATEMENT OF MARGARET H. TAYLOR, PROFESSOR OF LAW, WAKE FOREST UNIVERSITY SCHOOL OF LAW
Ms. TAYLOR. Mr. Chairman, Representative Jackson Lee and distinguished Members of the Committee, I appreciate the opportunity to testify before you today.
My remarks focus first on problems with mandatory detention for noncitizens with criminal convictions and second on the alternative of supervised released, and I address these issues in more detail in my written testimony.
There is a central paradox that governs immigration detention. The key to having a fair and efficient detention policy is to pay more attention and devote more resources to release decisions. I want to stress that this point is not inconsistent with the testimony of Mr. Thomson. Certainly there are people who should be detained by the INS prior to their deportation hearing, and he gives a compelling example. By the same token, there are many, many people detained by the INS, some of them pursuant to statutory mandates, who should be released. So I will also give you an example.
Hawa Said was the daughter of a U.S. Citizen. She immigrated to the United States when she was a year old. She served 30 days in jail for a drug conviction, and she was later detained by the INS pursuant to statutory mandates for 6 months, waiting for her deportation hearing. She was pregnant during part of that time.
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The argument for her release becomes even stronger when you consider that not only did she have a compelling claim for relief from removal, she also had a claim of derivative citizenship because her father naturalized while she was a minor. In fact, in the end, after proceedings were terminated, the State Department determined that she was a U.S. Citizen; and, again, she spent six times the amount in mandatory detention than she had spent for her underlying criminal conviction.
I know that it is tempting to conclude that we should not have release decisions. The safest course, it seems, is to lock everybody up and not let them out until they are removed from the country. That is the approach that the 1996 act takes with criminal offenders, and I would like to briefly note four problems with mandatory detention.
First, the INS simply doesn't have the capacity in bed space, in management structure, in expertise in detention operations to incarcerate everyone that comes through the system or even everyone who is inadmissible or deportable on criminal grounds.
Second, it is an enormous strain on INS and taxpayer resources to lock up people who do not present a risk of flight or a danger to the community, and it deprives the INS of much-needed flexibility to make the best use of its limited detention space when the stats says that nonviolent offenders, including individuals who have never served a day in prison for their underlying criminal conviction, must be incarcerated during the pendency of their removal proceedings. It is far better, as Mr. Greene suggested, to have a case-by-case determination in this context.
Page 39 PREV PAGE TOP OF DOCThird, mandatory detention imposes the devastating consequence of detention without assessing whether someone has a viable claim for relief or perhaps is not even deportable, and my written testimony includes additional stories of individuals who are subject to mandatory detention and then succeeded in challenging their deportation.
Finally, freedom from imprisonment lies at the heart of liberty protected by due process. The Supreme Court recently reminded us in its decision in Zadvydas v. Davis that, quote, the due process clause applies to all persons within the United States including aliens, whether their presence here is lawful, unlawful, temporary or permanent.
The majority of district courts to consider the issue have concluded that the detention mandates in the Immigration and Nationality Act are unconstitutional. I am, of course, aware of studies suggesting that many aliens do not appear at removal hearings and that removal orders are seldom enforced against individuals who are not in INS custody, but that does not mean that everyone or even all criminal offenders should be detained for the reasons I noted above. Instead, it means that we need to pay more attention to the release side of the equation. The INS needs to develop an effective system of reporting and supervision for aliens in proceedings.
It is worth noting that supervised release is woven into the fabric of our criminal justice system. The majority of criminal suspects are released pending trial. The vast majority of those who are released show up for their trial. By definition, then, most aliens who have been convicted of a crime and are in the midst of deportation proceedings have already demonstrated that they will comply with a supervised release program.
Page 40 PREV PAGE TOP OF DOCI was privileged to serve on the Advisory board when the Vera Institute of Justice ran a 3-year demonstration project of supervised release in the immigration context. The central idea, which was empirically tested and proven, was that the well-developed expertise on how to operate a supervised release program in the criminal context can be successfully applied to immigration proceedings.
The demonstration project had good results. The in-take process gave INS officers far more extensive and complete information to support their detention and release decisions, which by itself was a significant benefit of the program. Ninety-one percent of the participants subject to intensive supervision showed up at all of their hearings. And, finally, Vera's study demonstrated that supervision is more cost effective than detention to ensure appearance at immigration hearings.
The central message I hope to convey is that it is expensive and inhumane to assume that detention is the only tool in the INS enforcement arsenal that can be used to restore credibility to the immigration system. The experience of pretrial removal in the criminal context and Vera's study showed that supervised release is an effective alternative. The INS hasn't developed the capacity to do anything but detain in order to keep tabs on people and make sure they comply with the process, and that is the central failing of the immigration enforcement system.
I would be happy to answer any questions that you have. Thank you for the opportunity to testify.
Mr. GEKAS. We thank the witness.
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[The prepared statement of Ms. Taylor follows:]
PREPARED STATEMENT OF MARGARET H. TAYLOR
My name is Margaret Taylor. I am a Professor of Law at Wake Forest University. Much of my work over the past ten years has focused on INS detention policy.
My remarks focus first on problems with mandatory detention embodied in INA §236(c), and second on the alternative of supervised release. I will conclude by noting some additional concerns closely linked to these two issues.
I. THE PROBLEMS WITH MANDATORY DETENTION
There is a central paradox that governs immigration detention: The key to having a fair and efficient detention policy is to pay more attention and devote more resources to release decisions. I know that it is tempting to conclude otherwise—the safest course, it seems, is to lock everybody up and not let them out until they are removed from the country. That is the approach that the 1996 Act takes as to criminal offenders. INA §236(c) require detention during the pendency of removal hearings for any alien inadmissible or deportable for a criminal offense; the only exception is for a single crime involving moral turpitude resulting in a term of imprisonment for less than a year. A wide array of nonviolent and minor offenses are encompassed in this mandate. The statute does not permit any consideration of whether the individual presents a risk of flight or danger to the community. Here I'll briefly note four problems with the ''lock'em all up'' approach:
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First, the INS simply doesn't have the capacity—in bed space, management structure, or expertise in detention operations—to incarcerate everyone who comes through the system, or even everyone who is inadmissible or deportable on criminal grounds. This is not a problem that the Service can outgrow. INS detention capacity has skyrocketed in recent years through increased reliance on state and local jails. This creates enormous problems of management and oversight, and has a devastating impact on INS detainees—including asylum seekers who are locked up with the criminal population in local jails. Additional rapid growth will only exacerbate these problems.
Second, it is an unnecessary drain on INS and taxpayer resources to incarcerate people who do not present a risk of flight or a danger to the community. Moreover, it deprives the INS of much-needed flexibility to make the best use of its limited bed space when the governing statute requires that nonviolent offenders—including individuals who have never served a day in prison for their underlying criminal conviction—be detained during the pendency of their removal proceedings.
Third, mandatory detention under INA §236(c) is based on a preliminary assessment of whether the individual is inadmissible or deportable. In many instances, that conclusion turns out to be wrong. INS detention destroys lives, it robs U.S. citizen dependents of their only means of support, and it tears apart families. And yet, pursuant to the statutory mandate, these devastating consequences are imposed without any assessment of whether, in the end, an individual might be granted some form of relief or even found not to be deportable. To illustrate, consider the following stories of three people who were subject to mandatory detention but ultimately prevailed in contesting their deportation:
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Joe Van Eeten, a decorated Vietnam veteran, was detained by the INS for almost five months, until a district court in Oregon ruled held that his mandatory detention pursuant to INA §236 (c) violated due process. Van Eeten claimed that he had been naturalized in a ceremony at Camp Pendleton, California just before being sent to Vietnam. But the INS disputed his claim to citizenship. Six months after he was ordered released, an immigration judge terminated removal proceedings against him. That decision was later upheld by the BIA. Were it not for the district court's order, Van Eeten would have been subject to mandatory detention for the duration of the administrative process that, in the end, established that he was not deportable. See Van Eeton v. Beebe, 49 F. Supp. 2d 1186 (D. Or. 1999), appeal dismissed as moot, No. 99–35470, 2000 U.S. App. LEXIS 22741 (9th Cir. Sept. 7, 2000); Don Hamilton, Immigration Judge Decides Against Deporting Ex-Marine-Judge Michael H. Bennett Says Activist Joe Van Eeton Became a U. S. Citizen Before He Shipped Out to Vietnam in 1968, Portland Oregonian, Sept. 21, 1999, at E1 (1999 WL 5374338).
Hawa Said immigrated to the United States at the age of one, and her father naturalized when she was a minor—giving her a claim to derivative citizenship. Said was put in removal proceedings and subject to mandatory detention based on a drug conviction for which she served thirty days in jail. INS initially sent Said—who was pregnant at the time—to a detention facility in San Diego, more than 2,000 miles from her home, family, and legal counsel in Alaska. A district court subsequently ordered her returned to Alaska, stating that she had made a prima facie case of citizenship based on her father's naturalization. After six months in INS detention—six times what she had been required to serve for her state conviction—INS agreed to grant Said withholding of removal on the condition that she not pursue her claim to citizenship in immigration court. A few months after that, the U.S. State Department recognized her citizenship and issued her a passport. See Said v. Eddy, 87 F. Supp. 2d 937, 939 (D. Alaska 2000); Said v. Eddy, No. A99-0482-CV (D. Alaska Aug. 9, 1999); Anthony Lewis, Cruel and Unneeded, New York Times, Oct. 5, 1999.
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Jodey Gravett, a decorated Vietnam veteran and likely the son of an American serviceman, was detained by the INS for more than four months before his immigration proceedings were ultimately terminated. Adopted by American parents from a Japanese orphanage when he was 12 years old, Gravett has lived in the United States for over forty years. After serving a two-month jail term stemming from the discovery of three marijuana plants at his home, Gravett was placed in removal proceedings by INS for this and another drug possession conviction and was subjected to mandatory detention under §236(c). A state court subsequently changed his more recent conviction and erased the previous one entirely. Based on these changes, an immigration judge ruled that Gravett was no longer deportable and terminated his removal proceedings. Even if his convictions had not been altered, Gravett's immigration proceedings might have been terminated based on a claim of U.S. citizenship stemming from his military record in Vietnam and the citizenship of his father. See Leonel Sanchez, INS Moves to Deport Vietnam Vet; Legal Immigrant Has Felony Record, The San Diego Union Tribune, February 11, 1998, at B7 (1998 WL 3991627); Leonel Sanchez, Deporting of Heroic Veteran is Blocked; Man's Criminal Record is Amended, The San Diego Union Tribune, April 16, 1998, at B7 (1998 WL 4004476).
Finally, mandatory detention violates due process precisely because it does not allow an immigration judge to make custody determinations based on the facts of individual cases, such as those included in the stories above. Freedom from imprisonment lies at the heart of liberty protected by the Due Process clause. Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The Supreme Court recently reminded us, in its decision in Zadvydas v. Davis, that ''the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.'' 121 S.Ct. 2491, 2500 (2001). Mandatory detention violates due process because it infringes on the most fundamental of liberty interests indiscriminately, without any determination of whether the individual detained poses a risk of flight or a threat to the public. Cf. United States v. Salerno, 481 U.S. 739 (1987)(deprivation of fundamental liberty interest cannot be excessive in relation to the government's interest); Zadvydas, 121 S.Ct. at 2498 (''strict procedural safeguards'' and a ''sufficiently strong special justification'' must be present to justify detention based on dangerousness). In addition, due process requires that persons detained by the government must have the opportunity to contest their continued incarceration before a neutral adjudicator. See Leader v. Blackman, 744 F. Supp. 500 (S.D.N.Y. 1990) (striking down an earlier incarnation of mandatory detention, noting that ''there is a liberty interest that is implicated when one is detained, which creates the right to a bail hearing''); St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y. 1996). The majority of district courts to consider the issue have concluded that detention mandates in the Immigration and Nationality Act are in fact unconstitutional. See e.g. Shurney v. INS, No. 01CV1906 (N.D. Ohio Nov. 9, 2001); available at http://www.ohnd.uscourts.gov/Clerk—s—Office/Notable—Cases/notable—cases.html (collecting cases at footnote 2); Small v. Reno, 127 F. Supp. 2d 305 (D. Conn. 2000); Sharma v. Ashcroft, 158 F. Supp. 2d 519 (E.D. Pa. 2001); Welch v. Reno, 101 F. Supp. 2d 347 (D. Md. 2000); Vang v. Ashcroft, 149 F. Supp. 2d 1027, (N.D. Ill. 2001); Kim v. Schiltgen, No. C99–2257 SI, 1999 U.S. Dist. LEXIS 12511 (N.D. Cal. Aug. 10, 1999); Martinez v. Greene, 28 F. Supp. 2d 1275 (D. Colo. 1998).
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II. SUPERVISED RELEASE AS AN ALTERNATIVE TO DETENTION
I am, of course, aware of the studies suggesting that many aliens do not appear at removal hearings, and that removal orders are seldom enforced against individuals who are not in INS custody. But that does not mean that everyone (or even all criminal offenders) should be detained, for the reasons discussed above. Instead, it means we need to pay more attention to the release side of the equation. The INS needs to develop an effective system of reporting and supervision for aliens in proceedings.
It is worth noting that supervised release is woven into the fabric of our criminal justice system. The majority of criminal defendants are released subject to supervision pending trial. Appearance rates vary slightly from jurisdiction to jurisdiction, and across the range of criminal charges. But a recent study of felony defendants suggests that, on average, 76% of those who were released pending trial reported for all court appearances. Most of those who missed a single appearance were later returned to court, and only a small fraction—5%—of felony defendants released pending trial were considered fugitives. This data shows that we do not need to reinvent the wheel to create an effective supervision program. It also tells us that most aliens who have been convicted of a crime and are in the midst of deportation proceedings have already demonstrated that they will comply with a supervised release program.
I was privileged to serve on the advisory board when the Vera Institute of Justice ran a three-year demonstration project of community supervision for people in immigration proceedings, known as the Appearance Assistance Program. The central idea, which was empirically tested and proven, was that the well-developed expertise on how to operate a supervised release program in the criminal context can be successfully applied to the immigration proceedings. The AAP intake process gave INS officers far more extensive and complete information to support their detention and release decisions—which by itself was a significant benefit of the program. Moreover, AAP intensive participants appeared in immigration court at significantly higher rates than the comparison group—91% showed up at all of their hearings. Finally, Vera's study documented that supervision is more cost effective than detention to ensure appearance at immigration hearings. Full information on the AAP may be found in Sullivan, et al, Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance Program, Final Report to the Immigration and Naturalization Service, August 1, 2000. The report is available on the Vera website, www.vera.org.
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III. RELATED CONCERNS
A. Preventive and ''Symbolic'' Detention
Mandatory detention is closely tied to two other issues: preventive detention—locking people up because we think they might be dangerous—and what I call ''symbolic'' detention—an idea I have developed in some of my writings. I want to briefly note concerns about these two issues.
The Supreme Court in Zadvydas stressed that the Constitution imposes stringent limits on preventive detention, and these limits apply in the immigration context. 121 U.S. at 2499–2502. The goal of INS detention is to effectuate removal from the United States. And detention loses legitimacy when it is severed from this goal. Id. at 2504–05
For that reason, I'm concerned with a growing ''symbolic'' component of immigration detention—the idea that we need to ratchet up the level of immigration detention to signal that the government is ''getting tough'' in a particular area of immigration enforcement. Mandatory detention of all criminal offenders, regardless of the risk of flight or danger to the public, has a symbolic component. And the hundreds of post-9/11 detainees from the Middle East, who have been cleared of any possible involvement in terrorism but are nevertheless are being held for minor visa violations, are the most recent example of individuals who are being detained as part of a symbolic ''crackdown.''
Page 47 PREV PAGE TOP OF DOCSweeping lots more aliens into INS custody is a very visible way to convince the general public that something is being done about a particular problem. But these episodic detention sweeps and the broad criminal detention mandates are of questionable utility, and are fundamentally unfair. We should not, in other words, deprive people of liberty primarily to ''send a message.''
B. Recent Rules Expanding INS Authority and Contracting IJ Review over Detention Decisions
Consistent with the due process requirement for a neutral adjudicator to decide custody status, immigration judge jurisdiction should expand to three contexts where IJ's do not at present make custody determinations: (1) detained asylum seekers in the expedited removal process who have passed the ''credible fear'' screen and are awaiting a removal hearing; (2) returning lawful permanent residents who are considered ''applicants for admission;'' and (3) post-order detainees who have not been removed within the statutory 90-day removal period. Instead, the Department of Justice has recently acted to contract IJ authority, and to insulate INS custody decisions from any time limitations or further review, via two interim rules. These regulations conflict with the procedures that Congress enacted in the USA-PATRIOT Act and raise serious constitutional concerns.
First, an interim rule on custody procedures issued September 17, 2001 extends the time for the INS to make charging and custody determinations to 48 hours. ''[I]n the event of an emergency or other extraordinary circumstance,'' however, the rule specifies that such determinations must be made ''within an additional reasonable period of time.'' 66 Fed. Reg. 48334, 48335. The interim rule provides no guidance on how to interpret these phrases, but information from representatives of some detainees suggests that at present detainees routinely are held for weeks without charge. This practice conflicts with an intervening Act of Congress. The USA-PATRIOT Act established certification by the Attorney General as the only exception to established custody procedures, and limited the detention of a certified alien to a maximum of seven days before charges are initiated. The regulations must be interpreted in light of the limitations embodied in this new statute.
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Second, an interim rule issued on October 31, 2001 grants the INS authority to stay an IJ's release decision in any case in which a district director ordered the alien held without bond or set a bond of $10,000 or more. 66 Fed. Reg. 54909 (Oct. 31, 2001). This rule permits the INS unilaterally to retain someone in custody throughout the entire administrative process in any case where the original bond reaches the threshold amount (a factor that is within the exclusive control of INS), regardless of the charges lodged. As a practical matter, the automatic stay provision bypasses the important (and constitutionally required) step of an IJ bond determination. In many cases where the new rule might be invoked, hearings on custody status are now simply continued—without ever having the judge reach a decision—because all participants know that the INS can simply nullify an outcome that it does not like. The interim rule conflicts with the limited authority and strict time limits provided in USA-PATRIOT. Both regulations also raise significant constitutional concerns pursuant to the due process precedent discussed above.
The central message that I hope to convey today is that it is expensive, and it is inhumane, to assume that detention is the only tool in the INS enforcement arsenal that can be used to ''restore credibility'' to the immigration system. The experience of pretrial supervision in the criminal context, and the Vera Institute Appearance Assistance Program, show that supervised release is an effective alternative. To date, the INS has failed to develop the capacity to do anything but detain in order to keep tabs on people in the midst of proceedings and make sure they comply with the process. This is a central failing of the immigration enforcement system.
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Congress has recently appropriated money to fund alternatives to INS detention, which is a step in the right direction. Repeal of the detention mandates—so that IJs again can make individualized determinations of whether a criminal offender presents a risk of flight or danger to others, or has a viable claim for relief that makes him a good candidate for release—is the next step. And IJ jurisdiction needs to expand, not contract, to ensure that all individuals deprived of the liberty are entitled to a bond hearing before a neutral adjudicator, as due process requires.
I appreciate the opportunity to testify before you today, and would be happy to answer any questions.
Mr. GEKAS. Now it is the time for Members of the Committee to pose questions to the various members of the panel. We will accord each Member of the Committee 5 minutes for that cross-examination, and we will begin with the Chair indulging himself in such 5 minutes.
Mr. McElroy, I am very interested in putting on the record the data on Yousef from beginning to end. How did he come to the United States first?
Mr. MCELROY. I don't recall the case specifically, but I will submit that to the Committee.
Mr. GEKAS. Well, at the time that he—well, wasn't he detained in New York?
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Mr. MCELROY. Yes, he was.
Mr. GEKAS. Do you know when that was?
Mr. MCELROY. No, I don't recall the date.
Mr. GEKAS. Why was he detained?
Mr. MCELROY. I believe it was a matter of documentation.
Mr. GEKAS. Immigration violation you are saying?
Mr. MCELROY. Yes.
Mr. GEKAS. No criminal background at that juncture?
Mr. MCELROY. No. The difficulty of achieving a criminal background is if you take a person's fingerprints who comes from an area that has never been printed before, the prints are not in the database in the United States, nor may they be in Interpol. So saying that a person does not have a criminal record based on fingerprints is not a true picture of what exists.
Mr. GEKAS. Then he was released from detention, is that correct?
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Mr. MCELROY. That is correct.
Mr. GEKAS. When was that?
Mr. MCELROY. I don't recall the date.
Mr. GEKAS. Well, I will need a chronology of the events with respect to Yousef. That is very important because that is an example of the system in one way or another permitting someone released from detention to engage in terroristic activities.
Mr. MCELROY. Yes. I will give you the background on Mr. Yousef as well as Mr. Abu Mazir at the same time.
Mr. GEKAS. Yes, I thank you for that.
[The information referred to follows:]
GAZI IBRAHIM ABU MEZER
A86 365 223
1)
1993: Gazi Ibrahim Abu Mezer entered Canada on a student visa. His background was not checked by Canadian authorities, but those authorities later stated that he would likely have been admitted anyway.
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2)
1993: Abu Mezer applied for U.S. Visa in Toronto and was rejected.
3)
1993–1996: Abu Mezer twice arrested in Canada for stealing checks and a misdemeanor assault.
4)
Summer 1996: Abu Mezer arrested trying to cross Ross Lake in North Cascades National Park in Washington state. Park Ranger turned Abu Mezer over to INS who returned him to Canada without being charged with illegal entry.
5)
Summer 1996: Six days after Ross Lake crossing attempt, Abu Mezer was arrested 65 miles west of Ross Lake, ''wearing a Walkman personal stereo as he casually jogged into the United States''. Abu Mezer had U.S. and Canadian money, but no identification. Again, he was returned to Canada without being charged.
6)
January 14, 1997: Abu Mezer was arrested along with two others while boarding a bus in Bellingham, Washington. Abu Mezer admitted being in the United States illegally.
7)
January 14, 1997: INS charged Abu Mezer with illegal entry and set bail at $15,000. Canada refused to accept Abu Mezer. Abu Mezer applied for asylum, claiming that he could not return to Israel stating, ''I was not a member of Hamas, but I knew of persons who were.''
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8)
INS officials said they had no information to link Abu Mezer to terrorists, and did not oppose a motion to reduce his bond to $5,000.
9)
After his release, Abu Mezer informed the court that he no longer intended to seek asylum. He disappeared without attempting to redeem his bond.
10)
July 30, 1997: Abu Mezer's roommate tipped off the New York City Police Department that Abu Mezer was building pipe bombs in a Brooklyn apartment and planned to blow up a nearby subway station.
11)
July 31, 1997: NYPD raided the apartment and arrested Abu Mezer and Lafi Khalil.
12)
July 23, 1998: Abu Mezer was convicted of all counts related to the bombing plot, including Conspiracy to Use a Weapon of Mass Destruction. Lafi Khalil was convicted of Possession of a Fraudulent Alien Registration Card and acquitted on the more serious charges.
13)
March 1, 1999: Abu Mezer sentenced to life in prison after a U.S. District Judge declared him a terrorist risk.
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RAMZI AHMED YOUSEF
February 1993: Under the influence of Sheik Omar Abdel Rahman, Ramzi Ahmed Yousef organizes Mohammed Salameh and three others in plotting and carrying out a bombing at New York's World Trade Center that caused mass destruction, six deaths and more than a thousand wounded. The group is comprised of Egyptians and Palestinians. Yousef, travelling on an Iraqi passport, entered the United States in September 1992 without a visa, but was allowed to enter the country provisionally after asking for asylum, because of lack of detention space. His companion, a Palestinian named Ahmad Ajaj, who arrived on a fake Swedish passport, was arrested and found to have bombmaking videos and manuals in his luggage. Salameh entered the United States in 1988 on a Jordanian passport and a visitors visa issued in Amman, Jordan. He applied for legal residence status [presumably asylee status], was turned down, and continued to be in the country on appeal of that decision. Abdel Rahman, an Egyptian religious leader charged with inciting a 1989 riot in Egypt, obtained a visa in Khartoum, Sudan which had no automated lookout system that would have identified him as a security threat. He entered as a tourist and applied for political asylum and received legal residence. An immigration judge ordered him deported in March, 1993, but he was still in the country four months later when he is arrested for terrorist acts.
Chronology:
September 1, 1992: Arrived in the US at JFKIA. Presented Iraqi passport with no visa. Detained, fingerprinted, and released to file an asylum claim. (Consistent with general INS detention/parole policies at the time)
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November 9, 1992: Filed police report with Jersey City Police Department claiming that he had lost his passport.
December 31, 1992: Applied for replacement passport at Pakistani consulate in New York using photocopies of one Abdul Basit. Consulate suspected photocopies and denied him a new passport, instead issuing a six month ''temporary'' passport.
February 26, 1993: Departed for Pakistan using fake ''temporary'' Pakistani passport. That same day, Mr. Yousef's co-conspirators set off the WTC bomb.
Mr. GEKAS. Mr. Thomson, on the question of Bell, did you say that the first bond that was imposed upon him was $6,500 and then reduced to $3,500?
Mr. THOMSON. That is correct, Mr. Chairman.
Mr. GEKAS. Was this after the murder was committed?
Mr. THOMSON. No, sir. It was after he was taken into custody by the agents. He asked for a redetermination of his bail before an immigration judge.
Mr. GEKAS. So it was after he was released on the lower bond that he committed the murder?
Mr. THOMSON. That is correct.
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Mr. GEKAS. And the bond, of course, was stated at the discretion of the judge at that point? There were no guidelines for him, were there, with respect to the type of attention to which Bell had been incarcerated?
Mr. THOMSON. From the best what we can tell from the records, Mr. Chairman, what we did after the murder was we issued subpoenas for all of the INS files, including the lawyers' notes from court representing the agency. They opposed the reduction in bond, the lawyers did, and the judge did it over their objection. There was some testimony taken and cross-examination regarding Mr. Bell's request for bond, such as his connections to the community, his family, how long he had been in the country and that sort of thing, routine questions you would ask in a bond hearing.
Mr. GEKAS. Professor Taylor says that that is not uncommon or it is no different from an American citizen being charged with crimes and being given bond on the basis of connections to the community, relatives, et cetera. Was there anything other than the alien status to make it different in this case?
Mr. THOMSON. Mr. Chairman, my position would be that, as Mr. McElroy stated, in the alien's native country, they do not have the sophisticated method of tracking criminal behavior that we have developed in the United States through the printouts of NCICs. In Virginia, we call it a VCIN.
As a matter of fact, as I reviewed the record of this case for this testimony here today, I see that the Jamaican embassy certified no criminal history from Jamaica on Mr. Bell, when, in fact, after we got going on the murder case, we found out by sending an agent there that he had been convicted of a crime in Jamaica.
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So I guess my position is that, for a normal bond hearing for an American citizen who has been here for a substantial period of time, they would have records that we could go to. If you are born in this country, if the crime is in Winchester and you spent the majority of your life in California or Florida, I could find out pretty much everything about you for that bond hearing; and we routinely do that. But the fact of the matter is that a lot of these folks are coming in here from countries and we do not have access to their criminal history information.
Mr. GEKAS. The time of the Chair has expired.
We now allocate 5 minutes to the lady from Texas, Ranking Member Ms. Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
I again emphasize the importance of this hearing because I hope that it will delineate the need for an immigration policy covering a myriad of issues, and hopefully as we all listen to the testimony we can find common agreement even though this is not a hearing on 245(i).
The point of knowing that there are distinctions in what we are talking about, bad actors, if you will, and how we find bad actors and detain them versus an immigration policy that is necessary to comport with the values that we have in this country—245(i), for example, happens to deal with reuniting people and providing access to immigration or legal immigration.
Page 58 PREV PAGE TOP OF DOCIn this instance, many of the witnesses I agree with. Mr. Thomson, I truly agree that anyone on a weapons charge, it baffles my mind why they would have been released and certainly, unfortunately, they are not supervised, which is horrific.
I have a series of questions for you. My time is limited, so let me start with Professor Taylor.
If you can detail briefly but in more detail the Vera project and how it started and its success rate.
Ms. TAYLOR. Yes. I will detail it based on my impressions as an advisory board member.
The study was turned over to the INS, and I refer the entire study to you. It was, in fact, right in Mr. McElroy's district and it was a contact with the INS, as I said, to test supervised release as an alternative to INS detention. There were some changes in the law as the project was being set up which changed as the project was going, the populations that it was supervising, but it had good results for every part of the population that it supervised.
Again, one thing I want to stress is that the program, because it had intake, you get more complete information about a person, you verify the addresses. When they say they have a relative, you find out whether they have a relative. When they say they live at such and such address, you go to that address and verify that information. And that, in fact, helps INS officers make better detention——
Page 59 PREV PAGE TOP OF DOCMs. JACKSON LEE. Do you know the percentages of return, meaning how many showed up for the hearings? Did you give us that number?
Ms. TAYLOR. In my testimony I have the general number which I believe was 91 percent. It varied slightly from category to category, but it was statistically significant in each component of people supervised.
Ms. JACKSON LEE. And there was criteria—was any of them individuals with violent backgrounds, to your knowledge?
Ms. TAYLOR. When the project started, there was a very small period of time that the project operated—they had a small number of criminal offenders that were in the project. Then the detention mandates of the 1996 act took effect in 1998, and that kind of shut off that population to be in the program.
As the program was originally designed, the Vera Institute suggested that the criminal offenders would be amenable to supervision, those who were not obviously a risk of flight or a danger to the public, in part because, as I said before, they—most of them had successfully completed supervision as part of the criminal process that they had been through and——
Ms. JACKSON LEE. There should be criteria you are saying.
Ms. TAYLOR. Yes. You could screen nonviolent versus violent criminals——
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Ms. JACKSON LEE. A pregnant detainee would certainly fall in that category, and certainly she appeared not to be a threat. I just want to focus the——
Ms. TAYLOR. The example I gave was someone who did fall into the detention mandates but was someone who didn't present a threat, and I think under the detention mandates there are people who are not a threat to the public who are being detained.
Ms. JACKSON LEE. Thank you very much.
Mr. Thomson, let me then pose my question to you. I absolutely agree that some who had a weapons charge—I understand that he had the weapons charge as he went in to be detained. It was a preceding weapons charge for Mr. Bell, is that correct?
Mr. THOMSON. It was the predicate conviction for the detention of him by INS agents.
Ms. JACKSON LEE. All right. With that in mind then, can you see the potential of a criteria which goes to violent criminals, weapons charges, and can you see the distinction and would you be open to the distinction that talks about a pregnant detainee, as someone whose parent is naturalized? Are you making that distinction here that Mr. Bell falls in a different category?
Mr. THOMSON. Yes, ma'am, I am; and that is why my testimony is confined to that narrow issue. In other words, we view this as a loophole, if you will, in the law, that someone who would be convicted of a weapons offense or even taken into custody for a weapons offense would not be detained.
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Ms. JACKSON LEE. I thank you for that.
Mr. Greene, let me ask you how can we work better with criteria to enhance the discretionary aspect of detainees? Because I don't know where you are going to put everyone, and I think the pregnant detainee is an example of a problem, as is Mr. Bell an example of a problem.
Mr. GREENE. Thank you, ma'am.
The situation with the carrying a concealed weapon conviction is now within the category of a mandatory detention. It was not in 1998. So the sort of situation that we—this sad, sad case is one that is unlikely to happen under the current set of circumstances. But the problem of the larger set of criteria is difficult because just in general it is difficult to predict who is likely to offend again once they are released.
In response to some research that we did pursuant to a subpoena from this Committee, we looked at the recidivism rates, as you know, and we also looked in sort of the larger context of how that stacked up against the national recidivism rate for people who are likely to offend again, and the percentages were not really outside of or dramatically either higher or lower than the national recidivism rate.
One of the purposes of the policy review, as I spoke to you earlier, was to take advantage of all of the literature and all of the research that has been done to try to refine our predictive process better. Because I agree with other members of this panel that classification that is being able to determine the likelihood that a person will offend or the likelihood that a person will show up for future immigration hearings is very critical.
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One of the difficulties in terms of the data is that, in the data sets that we have looked at, people are more likely to show up for immigration hearings than they are to report for removal, and that becomes one of the difficulties for us in terms of making the decision to detain or not. We would be likely in some cases to detain a person even where there are some predictive factors that they will show up for a hearing based on our experience as an agency that once they get the final order of removal they will simply abscond.
Mr. GEKAS. The time of the lady has expired.
We now turn to the gentleman from Utah, Mr. Cannon, for 5 minutes.
Mr. CANNON. Thank you, Mr. Chairman.
I thank the witnesses for their testimony and being with us here. It has been enlightening. I have a question for Mr. Greene, for Mr. McElroy and Ms. Taylor if you would like to.
I supported exploring alternatives to detention to enable the Government to better focus our detention resources on those who must be detained and release some of the nonviolent asylum seekers and possibly some other long-term immigration detainees who lack family members, sponsors, that sort of thing, to faith- and community-based organizations who screen them for community ties or link them to necessary services and help assure their appearance at court hearings.
Page 63 PREV PAGE TOP OF DOCI asked Ms. Peggy Philbin, the Active Director of the Executive Office for Immigration Review at the INS, about alternatives to detention as part of this Subcommittee's INS oversight hearings on May 15, 2001, and she gave some very positive responses about the promise of using these alternatives to greater effect.
As you may be aware, an alternative to the detention pilot program has been tested in three sites with a success rate of over 93 percent of participants appearing at all of their hearings and at a net savings of $4,500, $4,600 per person. Additional funding was made available in the fiscal year 2002 Commerce, Justice, State appropriations bill to expand these pilot programs.
Do you have any experience with these alternatives to detention programs, and do you believe that better utilization of such alternatives with nongovernmental organizations could be part of the solution to improving on appearance rates and the unwitting release of high-risk detainees by the INS?
Mr. MCELROY. Is that for me, Congressman? I would like it to be known for the record that with regard to the Vera contract, I was unable to get a copy of the contract to read the list of the deliverables. I spent significant time in the Government as a contracting officer and I wanted to make sure that the contract was properly let.
The concept of having people appear for hearings as a use of resources makes sense right up until the point that at the hearing—or at a hearing, you don't get the benefit you want. We have heard several statistics about a 90 percent show rate to hearings, but we haven't heard a statistic about people who have been denied a benefit and whether or not they presented themselves to be removed from the United States.
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So, I had—when I was unable to receive a copy of the Vera contract, I called the Office of the Inspector General and advised them that I thought that this was a $6 million waste of the Government's funds because they were building a model that was so small, comparatively speaking, to the 200,000-person docket that I administrate, that the sampling group would pick and choose the people that they have and come in and build the criteria, you could almost ensure success. But the Government, if you were——
Mr. CANNON. Let me interject. Are you going to get a copy of that contract and take a look at it with specificity so you can draw those conclusions based upon consideration of the actual contract?
Mr. MCELROY. The action of the inspector general approximately a year after I turned in the complaint was to come to me and ask me, now that I was administrating the contract, I considered it a dead