[House Hearing, 111 Congress]
[From the U.S. Government Printing Office]
MOVING TOWARD MORE EFFECTIVE IMMIGRATION DETENTION MANAGEMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON BORDER,
MARITIME, AND GLOBAL COUNTERTERRORISM
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
DECEMBER 10, 2009
__________
Serial No. 111-47
__________
Printed for the use of the Committee on Homeland Security
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Available via the World Wide Web: http://www.gpo.gov/fdsys/
__________
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COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Mark E. Souder, Indiana
Eleanor Holmes Norton, District of Daniel E. Lungren, California
Columbia Mike Rogers, Alabama
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Henry Cuellar, Texas Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania Paul C. Broun, Georgia
Yvette D. Clarke, New York Candice S. Miller, Michigan
Laura Richardson, California Pete Olson, Texas
Ann Kirkpatrick, Arizona Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico Steve Austria, Ohio
William L. Owens, New York
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
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SUBCOMMITTEE ON BORDER, MARITIME, AND GLOBAL COUNTERTERRORISM
Loretta Sanchez, California, Chairwoman
Jane Harman, California Mark E. Souder, Indiana
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Gus M. Bilirakis, Florida
Henry Cuellar, Texas Mike Rogers, Alabama
Ann Kirkpatrick, Arizona Candice S. Miller, Michigan
Bill Pascrell, Jr., New Jersey Peter T. King, New York (Ex
Al Green, Texas Officio)
Eric J.J. Massa, New York
Bennie G. Thompson, Mississippi (Ex
Officio)
Alison Northop, Staff Director
Nikki Hadder, Clerk
Mandy Bowers, Minority Subcommittee Lead
C O N T E N T S
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Page
Statements
The Honorable Loretta Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Border, Maritime, and Global Counterterrorism.................. 1
The Honorable Mark E. Souder, a Representative in Congress from
the State of Indiana, and Ranking Member, Subcommittee on
Border, Maritime, and Global Counterterrorism.................. 2
Witnesses
Ms. Dora Schriro, Commissioner, New York City Department of
Correction:
Oral Statement................................................. 5
Prepared Statement............................................. 7
Mr. Christopher L. Crane, Vice President, Detention and Removal
Operations, American Federation of Government Employees
National ICE Council-118:
Oral Statement................................................. 10
Prepared Statement............................................. 12
Mr. Donald M. Kerwin, Jr., Vice President for Programs, Migration
Policy Institute:
Oral Statement................................................. 19
Prepared Statement............................................. 20
Ms. Brittney Nystrom, Senior Legal Advisor, National Immigration
Forum:
Oral Statement................................................. 29
Prepared Statement............................................. 31
Mr. Mark Krikorian, Executive Director, Center for Immigration
Studies:
Oral Statement................................................. 39
Prepared Statement............................................. 40
Appendix
Questions From Chairwoman Loretta Sanchez for Dora Schriro....... 63
Questions From Chairman Bennie G. Thompson for Dora Schriro...... 63
Questions From Chairwoman Loretta Sanchez for Christopher L.
Crane.......................................................... 63
Questions From Chairman Bennie G. Thompson for Christopher L.
Crane.......................................................... 66
Questions From Chairwoman Loretta Sanchez for Donald M. Kerwin,
Jr............................................................. 68
Questions From Chairman Bennie G. Thompson for Donald M. Kerwin,
Jr............................................................. 70
Questions From Chairwoman Loretta Sanchez for Brittney Nystrom... 72
Questions From Chairman Bennie G. Thompson for Brittney Nystrom.. 74
MOVING TOWARD MORE EFFECTIVE IMMIGRATION DETENTION MANAGEMENT
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Thursday, December 10, 2009
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border, Maritime, and Global
Counterterrorism,
Washington, DC.
The subcommittee met, pursuant to call, at 10:09 a.m., in
Room 311, Cannon House Office Building, Hon. Loretta Sanchez
[Chairwoman of the subcommittee] presiding.
Present: Representatives Sanchez, Harman, Lofgren, Cuellar,
Kirkpatrick, Pascrell, Green, and Souder.
Ms. Sanchez [presiding]. Good morning, everybody. The
subcommittee will come to order, and the Subcommittee on
Border, Maritime, and Global Counterterrorism is meeting today
to receive testimony on moving toward more effective
immigration detention management.
Today we are gathering to hear testimony from key
stakeholders and advocates on the current immigration detention
system and the challenges to reforming detention standards.
This hearing comes at a crucial time since the Department
of Homeland Security is currently considering how to reform and
overhaul the current system.
This past August, Immigration and Customs Enforcement, or
ICE, Assistant Secretary John Morton and Secretary Napolitano
highlighted vast changes that they plan to make to the
immigration detention system.
As someone who has advocated for improved medical treatment
at detention facilities, for example, I am pleased that these
changes are likely to include the hiring of health and medical
experts as part of the new Office of Detention Policy and
Planning.
As a follow-up to this hearing, early next year we will
conduct a second hearing to hear directly from ICE about their
proposals and their plans to improve the detention system. But
today we want to hear from you.
As an advocate for improved and robust alternative-to-
detention programs for vulnerable populations and non-criminal
aliens, I am interested to hear what the witnesses today will
suggest for a program to move forward.
Since the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act in 1996, immigrant detainees have
reached an all-time high of 33,400 people.
That is astonishing, considering that in 1996 the amount
was under 9,000, but it is not surprising considering that
almost $800 million, the largest expenditure for ICE, is spent
annually on detention bed acquisition.
I would like to hear from our panel of witnesses about what
ideas they have to move beyond ``bed acquisition'' as a
detention strategy.
Furthermore, ICE currently uses a web of detention
facilities, ranging from contract detention facilities to over
350 local and State facilities, along with Federal-Government-
run facilities.
Unfortunately it seems like this variety of facilities has
made it difficult to ensure that there are some National
standards that are being adhered to at all of the facilities.
So I believe it is extremely important that any detention
facility acting on behalf of the United States adhere to a
clear and standard level of oversight and accountability.
With the opportunity to discuss these issues today, and the
wide range of perspectives our panel represents, my hope is
that we will hear about specific actions and policy changes
that need to be taken in order to improve the system.
As we all know, the concerns and the issues that I have
outlined today are just some of the many challenges that we
face in overhauling our detention system. But this is part of
what our committee oversees.
On a final note, it is important to recognize that of the
thousands of detainees being held in our detention facilities,
58 percent of them have no known criminal history. However,
they are still held in expensive criminal detention facilities.
So I thank our witnesses today, and I look forward to your
testimonies and ideas.
Now I yield to my Ranking Member, the gentleman from
Indiana, Mr. Souder, for his time.
Mr. Souder. Thank you, Madam Chairwoman, and we worked
together on many issues and agree on many, but I have
significant concerns about the tone of this hearing.
It is one thing to advocate for facilities to be safer or
more humane. However, what we are doing is holding people who--
and we have done those hearings in the past, and this is for
people who have been arrested.
It is entirely one thing to argue that we are holding too
many aliens in detention facilities, and they should be kept in
facilities nicer than those available to U.S. citizens who have
been arrested.
The very basic fact is that aliens in detention facilities
are there because they have been arrested for violating U.S.
law. Under existing law, the penalty for illegal presence is up
to 6 months in prison, with a maximum sentence of 10 years for
multiple reentries. This is outside the penalty for any other
criminal act they may have committed.
I think the most effective immigration reform is to truly
enforce the laws on the books. Detention is important for
homeland security, public safety, and is a deterrent for
illegal border crossers and false claims of asylum.
In March 2007 this subcommittee held a two-part hearing on
alien detention. Then-ICE director for detention and removal,
John Torres, testified that 90 percent of aliens released from
detention with a notice to appear absconded and never showed up
for their immigration hearings.
It is not safe or efficient to release thousands of foreign
nationals that are in this country illegally. They should be
held in detention centers until their cases are heard and
resolved.
Aliens in detention facilities are not here on vacation.
There is a flexibility to discuss how to improve the quality of
facilities, since that seems to be a concern, but they should
not be kept in facilities that are better than we give to
citizens who are arrested and awaiting trial.
I agree that they should be safe and humane, and we have
held hearings because there have been problems with safe and
humane standards in some of these facilities.
But violent criminals should not be--and I agree that
violent criminals should not be mixed with aliens who have not
committed violent crimes like we try not to do in our American
prison system.
Controls should be in place to ensure that gang violence
does not escalate in detention centers. Often they self-
identify, and they do that in the American prison system, too,
so don't get two people from the same gang in the same cells.
Those are legitimate concerns that we should be looking at.
However, when we start talking about releasing thousands of
arrested people who have come here illegally on their own
recognizance, despite the high absconding rates, giving them
free dental care outside of emergency services, or renting
hotels, I think we have crossed into the ridiculous.
Non-citizens arrested, held in detention centers, have
broken the law. They should not have better facilities or
privilege that U.S. citizens who have broken the law are
getting held in prison. That should be the basic standard here.
Are we going to give somebody who has been arrested for
illegally entering the United States better health care, better
facilities, more comfortable facilities, than somebody who is
an American citizen?
It would be impossible for me to explain to Hoosiers that
the Department of Homeland Security is going to purchase a
number of hotels around the country in order to house illegal
and criminal aliens in comfortable, low-security settings,
because they don't see that as fair when American citizens
don't get the same treatment.
I think it is important for us to discuss the role
detention plays in immigration enforcement and border security,
especially as immigration reform legislation is likely to be a
focus again next year.
This is not the time to scale back, create a whole bunch of
other arguments, because if we do, we simply are not going to
be able to get true immigration reform, because part of this is
we have had our quotas too low.
If our quotas are too low, we start to develop a backlog of
American demand. But the Americans want to see the border
sealed. They want to see people who have broken the law held
accountable. In my opinion, the thrust of this could set us
back in trying to have true immigration reform.
I yield back.
Ms. Sanchez. I thank my Ranking Member. Well, that is one
of the reasons why we have everybody before us and why we will
have ICE also, to see what type of facilities and just as a
side note, Mr. Souder, I am more concerned about the cost of
incarcerating people, and what type of people we are
incarcerating, and who we are holding them together, and
whether there are emergency services available.
More importantly, if these people have a claim under
current law to be in this country, that they get through the
process in a timely manner in order to put that forward.
My understanding is sometimes because of the diverse
patchwork of detention facilities that we have, people may be
moved around so much that they actually don't get their hearing
or their judicial process as we would anticipate they could,
especially if they have some claim--some rightful claim to be
here under the current law.
So that is why I called this hearing, not to suggest that
we would purchase Hilton hotels. They are not good investments
these days anyway.
The Chairwoman now will recognize the Chairman of the full
committee--is not here, nor is the other, so other Members of
the subcommittee are reminded that under the committee rules,
opening statements may be submitted for the record.
I will welcome our panel of witnesses. Our first witness,
Dr. Dora Schriro--is that correct?--was appointed as the
commissioner of the New York City Department of Correction on
September 21, 2009.
Immediately prior, she had served as special advisor to
Secretary of Homeland Security Janet Napolitano on immigration
and customs enforcement and detention and removal, and director
of the Office of Detention Policy and Planning for the
Department.
In that role, she directed work on the Department's plan to
overhaul the Nation's immigration detainee system. Dr. Schriro
has also served as the director of the Arizona Department of
Corrections and the Missouri Department of Corrections.
Welcome.
Our second witness, Mr. Christopher Crane, has been an
immigration enforcement agent at the Department of Homeland
Security since 2003. In that capacity, he has worked in the
Criminal Alien Program, or CAP, as we know it, and has served
as a member of an ICE fugitive operations team.
Prior to joining ICE, Mr. Crane served this Nation for 11
years in the U.S. Marine Corps.
Welcome.
Our third witness, Mr. Donald Kerwin, Jr., is vice
president for programs at the Migration Policy Institute, or
MPI, overseeing all of MPI's national and international
programs.
Prior to joining MPI, Mr. Kerwin worked for more than 16
years at the Catholic Legal Immigration Network. Mr. Kerwin is
also an advisor to the American Bar Association's commission on
immigration and a member of the Council on Foreign Relations'
immigration task force.
Welcome.
Our fourth witness, Ms. Brittney Nystrom, is the senior
legal advisor at the National Immigration Forum. In that
position, she focuses her advocacy on civil rights and due
process issues facing immigrants and asylum seekers.
Previously, Ms. Nystrom represented detained immigrants in
removal proceedings and advocated for humane detention
conditions as a legal director at the Capital Area Immigrants'
Rights Coalition.
Welcome also to you.
Our fifth witness, Mr. Mark Krikorian, has served--is it
Armenian?--Krikorian has served as executive director of the
Center for Immigration Studies since 1995. He holds a master's
degree from the Fletcher School of Law and Diplomacy, a
bachelor's degree from Georgetown University.
Before joining CIS Mr. Krikorian held a variety of
editorial and writing positions.
So without objection, the testimony--your full statements--
will be inserted into the record. I will ask each of the
witnesses--it is the only panel we have, and hopefully we won't
have votes or anything called so we can actually get a good
discussion going.
I now ask the witnesses to please summarize your statements
for 5 minutes or less, and we will begin with Dr. Schriro.
Welcome.
STATEMENT OF DORA SCHRIRO, COMMISSIONER, NEW YORK CITY
DEPARTMENT OF CORRECTION
Ms. Schriro. Good morning, Ms. Sanchez, Mr. Souder, Members
of the subcommittee. I am the author of the report on
preliminary assessment with recommendations for improvements,
and I am pleased to speak with you today.
As a matter of law, civil detention, unlike criminal
incapacitation--and yet civil and criminal detainees tend to be
seen by the public as comparable, and typically both confined
populations are managed in similar ways by governments.
With only a few exceptions, the facilities that ICE used to
detain aliens were built and operate as jails. Additionally,
ICE adopted corrections detention standards to guide the
operation of its facilities.
Establishing standards and expressing expectations for
civil detention are our challenge and our opportunity.
The commissioning and the release of the report speaks to
this administration's commitment to systems reform. The
directive by the Secretary within a week of her confirmation
was plain-spoken and heartfelt, to conduct a study and prepare
a report that identified and addressed the root causes
concerning the--I am sorry, concerns impacting detention and
removal operations.
Likewise, my access to information, detention facilities,
and the detainee population was authorized without hesitation
or equivocation by Assistant Secretary Morton. It is their
resolve that resulted in its publication and will produce the
reforms to come.
The information for this report came from my tours of 25
detention facilities; analyses of agency records and reports;
conversations with detainees and staff; meetings with over 100
NGOs; discussions with DHS, DOJ, Members of Congress and their
staffs; and studies authored by Government and others,
including the GAO, DHS, ABA, and the United Nations.
I drew, of course, from my own experience and work history,
published research, formal education, and training.
The report begins with a description of ICE detention
policy and continues with findings based upon my analysis. Here
are several of those core findings. ICE operated the largest
detention and supervised release program in the country.
A total well in excess of 375,000 aliens from 221 countries
were in custody or under supervision by ICE during fiscal year
2008, with a slightly larger number at the end of 2009.
Primarily responsible for its operation, our law
enforcement personnel, who has extensive expertise performing
detention functions--however, with little experience in the
design or delivery or the acquisition and evaluation of
detention facilities and community-based alternatives.
In application, the operation of detention facilities was
delegated to county sheriff departments and the private sector.
On-site monitoring and annual evaluations were also performed
primarily by the private sector.
ICE lacked a number of the basic information and
informational systems and critical planning and management
tools necessary to operate a system of this size and magnitude.
Instead, it employed a number of strategies to provide housing
and health care but had difficulty sustaining detention and
health care systems.
In terms of the day-to-day operations, 24 field offices
were responsible for the acquisition and assignment of
detainees to beds. Decentralized acquisition and assignments
impacted bed utilization, increased length of stay and numbers
of transfers, and aggravated disparities between arrest
activity and bed capacity.
Conditions of detention varied by location. Access to
services was limited, as was access to ICE officials difficult.
Idleness was pronounced. The method and means by which aliens
had opportunity to address grievances were lacking.
Disciplinary decisions were largely delegated to facility
providers. Still, untoward incidents by detainees were very few
in number.
Finally, the policies that ICE adopted and the practices
that it employed imposed more restrictions and incurred more
costs than were necessary to effectively manage most of the
alien population. I earnestly believe that ICE wants to do
better, and I see that it is taking steps in that direction.
My report was written with one purpose in mind--not as a
criticism of the current practices but an examination and an
articulation of a vision for the future, a system about how we
could succeed as Government.
To that end, the report includes a number of key
recommendations in seven areas--population management,
alternatives to detention, detention management, programs
management, health care, special populations, and
accountability.
Due to the unavailability of time, I won't be able to touch
on any of them now but perhaps can do so in the course of your
questions.
In closing, I would like to say that the report was
intended to be vetted within the Department and ICE, by
Congress and the many stakeholders and organizations, all of us
committed to improvement. I appreciate your invitation for me
to participate in this very important process.
[The statement of Ms. Schriro follows:]
Prepared Statement of Dora Schriro
December 10, 2009
Good morning, Ms. Sanchez, Mr. Souder, and Members of the
subcommittee. My name is Dr. Dora Schriro. I was privileged to serve as
Special Advisor on ICE Detention and Removal Operations to DHS
Secretary Napolitano and as the first Director of the Office of
Detention Policy and Planning at ICE. I authored A Report on the
Preliminary Assessment of ICE Detention Policies and Practices and A
Recommended Course of Action for Systems Reform this past September.
the challenge and the opportunity: a system of civil detention
As a matter of law, civil detention is unlike criminal
incapacitation and yet, civil and criminal detainees tend to be seen by
the public as comparable and typically, both confined populations are
managed in similar ways by Government. Each group is ordinarily
detained in secure facilities with hardened perimeters often in remote
locations at considerable distances from counsel and their communities.
With only a few exceptions, the facilities that U.S. Immigrations and
Customs Enforcement (ICE) used to detain aliens were built, and
operate, as jails and prisons to confine pretrial and sentenced felons.
Their design, construction, staffing plans, and population management
strategies were based largely upon the principles of command and
control. Additionally, ICE adopted detention standards that were based
upon corrections law and promulgated by correctional organizations to
guide the operation of jails. Establishing standards and expressing
expectations for civil detention are our challenge and our opportunity.
introductory remarks
The commissioning and the release of the Report, is representative
of this administration's commitment to systems reform. The directive by
Secretary Janet Napolitano within a week of her confirmation was
plainspoken and heartfelt: To conduct a study and prepare a report that
identified and addressed the root causes of concerns impacting
detention and removal operations. Likewise, access to information,
detention facilities, and the detainee population, was authorized
without hesitation or equivocation by Assistant Secretary John Morton.
It is their resolve that resulted in its publication and will produce
the reforms to come.
The information for this Report came from my tours of 25 detention
facilities across the country; analyses of agency records, reports, and
other documents; conversations with detainees and facility staff;
meetings with over 100 non-governmental organizations; discussions with
employees at the Departments of Homeland Security (DHS) and Justice
(DOJ), Members of Congress and their staff and State and local elected
officials; and studies authored by Government and others including the
Government Accountability Office (GAO), Department of Homeland Security
(DHS), the United Nations (UN), the American Bar Association, (ABA),
and many non-Governmental organizations. I drew as well as upon my
professional work history, research, and formal education, and
training.
core findings
The Report begins with a description of ICE detention and removal
policy, procedures, and practices and continues with findings based
upon analyses of its activities and outcomes. Here are several.
ICE operated the largest detention and supervised release
program in the country. A total of 378,582 aliens from 221
countries were in custody or supervised by ICE in fiscal year
2008; activities in fiscal year 2009 remained at a similar
level. On September 1, 2009, ICE detained 31,075 aliens. It
supervised an additional 19,169 aliens in the community on
alternatives to detention (ATD) programs.
On September 1, about two-thirds (66 percent) of the
detained population were subject to mandatory detention.
Approximately one-half (51 percent) were felons of which;
around one-tenth (11 percent) had committed violent crimes. The
majority (60 percent) of aliens in ICE custody were encountered
when in criminal custody; about one-half (48 percent) of all
admissions to ICE during the first 6 months of fiscal year 2009
originated through the Criminal Alien Program, another 12
percent were identified through 287(g) partnerships. Although
both of these programs focused on criminal aliens, many aliens
encountered through them did not have criminal convictions.
On average, an alien was detained 30 days however; time in
detention varied appreciably between those pursuing voluntary
removals and those seeking relief. As much as 25 percent of the
detained population was released within a day of admission, 38
percent within a week, 71 percent in less than a month, and 95
percent within 4 months. Less than 1 percent of all admissions,
about 2,100 aliens, were held for a year or more. Due to
differences in docket management, the time to disposition was
appreciably longer for aliens assigned to alternatives to
detention programs.
ICE lacked basic information and information systems and
critical planning and management tools. It operated without
benefit of cost models, site selection criteria, population
forecasts and bed plans, validated custody classification and
risk assessment instruments, a detainee locator system and
daily count sheets, uniform medical and mental screenings and
scores, electronic detention and medical record systems,
capacity reports, etc. Where ICE employed other systems'
strategies, impact was often limited by application.
The acquisition and renewal of detention beds, the
assignment of detainees to facilities and ATD programs, and the
transportation of detainees between facilities were
accomplished in the field by the 24 field offices.
Decentralized acquisition, assessments, and assignments
impacted bed utilization, increased lengths of stay and numbers
of transfers, and aggravated disparities between arrest
activity and bed capacity.
ICE was comprised primarily of law enforcement personnel
with extensive expertise performing removal functions, but not
in the design and delivery or in the acquisition and evaluation
of detention facilities and community-based alternatives. The
operation of detention facilities was delegated to county
sheriffs departments and the private sector. On-site monitoring
and annual evaluations were performed primarily by the private
sector. ICE contracted with one vendor for on-site monitoring
at 53 locations, representing a majority of beds but about one-
sixth of the facilities it used. It contracted with another
vendor to conduct an annual assessment of compliance with
detention standards at all locations. ICE maintained some
presence in most facilities, primarily by means of detention
officers who performed case removal functions.
Fewer than 50 of those 300 facilities averaged 100 or more
detainees daily with about one-half of the entire detained
population secured in 21 locations. Facilities were designated
by length of stay, with 93 percent of all beds approved for use
for more than 72 hours. With the exception of families with
minor children, special populations were dispersed.
Conditions of detention varied by location. Where facilities
were occupied by both civil and criminal detainees ICE
detainees, and particularly female detainees, were
disadvantaged by more restricted movement and less access to
programs. These conditions were compounded at locations where
civil and criminal detainees were assigned to the same housing
units. In general, idleness was pronounced. Access to legal
services, recreation, religious activities, and visitation
varied by facility location and operation. Detainees whose
lengths of stay were longer were particularly impacted. The
methods and means by which to address grievances were infirm.
Disciplinary decisions were largely delegated to facility
providers. Still, untoward incidents by detainees were few in
number.
ICE utilized a variety of strategies to provide health care
to the detained population but these strategies did not
constitute a health care system. Detainees were assigned to
detention facilities prior to assessing their health care
requirements sometimes resulting in high-need detainees being
placed at facilities with limited on-site health care or
routine oversight. Health care records were not maintained or
stored centrally. Medical summaries were not always provided
when detainees were transferred. Approval of off-site health
care was cumbersome and subject to delay. The assessment,
treatment, and management of pandemic and contagious diseases
were inconsistent. Some facilities were unable to manage large-
scale outbreaks without impacting other locations' operations.
The policies that ICE adopted and the practices that it
employed, imposed more restrictions and incurred more cost than
were necessary to effectively manage most of the alien
population.
key recommendations
The Report was written with one purpose in mind: Not as a criticism
of the current practices or as fuel for parties on either side of an
issue, but as an examination and articulation of a vision for the
future--a vision of how a civil system of detention could be
structured, organized, and calibrated to match the ICE mission and to
ensure its success.
To that end, the Report also outlined a framework of reforms and
recommendations in seven areas necessary to the design and delivery of
a system of civil detention. These seven components are Population
Management, Alternatives to Detention, Detention Management, Programs
Management, Health Care, Special Populations, and Accountability. Among
its recommendations are these.
Population Management is the continuum and the conditions of
control exercised by ICE over aliens in its custody and under
its supervision from least to most restrictive, and the
strategies by which aliens are managed pending their removal or
relief. Humanely detain and supervise aliens in the least
restrictive settings consistent with assessed risk and provide
health care and other program services commensurate with
identified needs. Make the size of the system manageable;
reduce the total number of facilities, using only those whose
design supports the delivery of care, custody and control for
civilly detained general and special populations and otherwise
meet enumerated expectations. Centralize procurement,
regionalize oversight, and localize on-site supervision. Align
facility locations and bed capacity with arrest activity,
lengths of stay, and special populations. Locate facilities
nearby consulates, pro bono counsel, EOIR services, and 24-hour
emergency medical care. Develop a National system of
transportation. Elevate detention duties within ICE as a
distinct discipline to sustain its redesign and delivery.
Detention Management focuses on the core operating
assumptions that affect conditions of civil detention. Use
validated instruments to assess propensity for violence and
need for health care and other services, and to inform
assignment to facilities. Do not comingle custody
classifications and civil with criminal detainees. Restrict
transfers between judicial circuits and when detainees are
represented by counsel, within circuits. Develop specialized
caseloads. Reduce idleness; expand access to dayrooms and
support space in other parts of the facility consistent with
custody classification and comparable to other populations
detained at that location. Ensure capacity is proportionate and
appropriate to the size of the population. Monitor disciplinary
practices; limit utilization of punitive segregation. Maintain
contact with detainees regardless of location. Improve formal
and informal on-site grievance processes. Provide timely
translation services.
Alternatives to Detention (ATD) are the community-based
supervision strategies that make up a significant portion of
less restrictive conditions of control. Use validated
instruments to assess and periodically reevaluate risk of
absconding, and to inform the level and kinds of supervision to
assign. Expand program capacity to serve those who are
statutorily eligible and otherwise qualified. Enroll eligible
aliens at the earliest opportunity; periodically reevaluate the
detained population for eligibility. Utilize electronic
monitoring only when risk of absconding warrants. Maintain an
effective fugitive apprehensive response.
Health Care, including medical, mental health, and dental
care, is a fundamental right of all detainees in ICE custody.
Establish an integrated health care system for medical, mental,
and dental health, with initial assessments, comprehensive
examinations, and centralized medical records to inform
facility and housing assignments, and timely and necessary care
regardless of the anticipated date of removal or release.
Convene a panel of health care professionals to establish
standards of care for detainees. Maintain an infection control
program and surveillance system. Integrate wellness activities
and adopt preventive health care practices. Ensure medication
is dispensed timely and medical diets are provided. Ensure
compliance with ADA requirements.
Programs Management encompasses the design and delivery of
law library and other activities affording aliens access to the
court; indoor and outdoor recreation; family contact including
visitation and communication by mail and phone; and religious
activities. Allocate sufficient space and afford additional
time to access programs. Provide translation services and
programs in more than one language. Support family and attorney
contact with improved visitation and mail service and lower
phone cost. Expand the Legal Orientation Program. Comply with
RLUIPA.
Special Populations include families with minor children;
females; unaccompanied minors; the ill and infirm; asylum
seekers; and other vulnerable populations. Consolidate special
populations to improve delivery of special services and to
lower cost. Modify population, detention, ATD, and programs
management to meet their unique needs. Assign female staff to
supervise female detainees or adopt knock-and-announce
practices. Discontinue utilization of segregation cells for
medical isolation and suicide observation. Select and assign
aliens to appropriate facilities.
Accountability concerns the operating framework process and
tenets for decision-making by which ICE provides oversight,
pursues improvement, and achieves transparency in the execution
of each part of its plan. Develop and adopt civil detention
standards and operating procedures consistent with civil
detention. Expand Federal oversight of key detention
operations, track performance, and annually evaluate outcomes.
Discontinue use of detention facilities that perform poorly.
Assign on-site expert Federal employees of rank to oversee
detention activities, to intercede whenever warranted, and to
ensure the integrity of grievance and disciplinary processes.
Optimize the presence of deportation officers with additional
training and supervision. Create an office within ICE to
receive and to respond to complaints and concerns.
next steps
The Report was written to be vetted within the Department and ICE,
Congress, and the many stakeholders and organizations also committed to
improvement. It is also important that the progress of recent months
toward equipping ICE with management tools and a deeper understanding
of detention policy, both critical to its mission, should continue.
Some recommendations can be actualized quickly. Others may require
further debate, additional analysis, and consideration. A number of
them are already underway. Whether realized immediately or
incrementally, these changes and this improvement are within our reach
nonetheless and should be pursued.
Thank you for this opportunity to appear before you. I welcome your
comments and questions.
Ms. Sanchez. Thank you so much.
Now we will hear from Mr. Crane to summarize your statement
for 5 minutes or less. Mr. Crane.
STATEMENT OF CHRISTOPHER L. CRANE, VICE PRESIDENT, DETENTION
AND REMOVAL OPERATIONS, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES NATIONAL ICE COUNCIL-118
Mr. Crane. Madam Chairwoman Sanchez, Ranking Member Souder,
Members of the subcommittee, good morning.
Regarding the proposed detention reforms, I will begin by
saying that the union and field managers were excluded from
participating in their development, which we believe was a real
mistake.
The union has no detailed written information regarding the
reforms. We can only address statements made by agency
representatives during briefings on the reforms held in
November of this year.
While we applaud the idea of reform, agency proposals made
known to the union appear to put detainees and officers at
greater risk than ever before. ICE will build what it is
referring to as low-custody open-campus facilities that will
house approximately 2,000 detainees who are free to move
throughout the respective facility 24 hours a day.
When ICE used the terms low-custody and open-campus, we
initially envisioned non-criminal detainees only. However,
according to agency representatives, the low-custody open-
campus facilities will hold any convicted criminal not
convicted of the following five charges--murder, rape,
kidnaping, assault with a deadly weapon, and armed robbery.
This list of charges does not exclude many other
potentially dangerous groups of criminals from being placed in
low-custody facilities such as drug dealers, gang members,
sexual predators, and any person convicted of a violent crime
that did not involve a weapon. This would include aggravated
assault and assault of a police officer.
With the agency's announcement that ICE will have a Nation-
wide detainee population of 85 to 90 percent convicted
criminals within the next 12 months, we can only assume that
these facilities will be holding similar populations.
Surprisingly, our representatives were told that the non-
criminal detainees will also be held in these same facilities.
We do not believe that these facilities are truly low-
custody detention, nor do we believe that they will provide the
appropriate safeguards for non-criminal detainees.
In terms of ICE employees, our concerns are similar. In the
midst of criminal populations such as these, our officers
should be afforded every safeguard afforded to any State or
Federal officer working with criminal detainees. The open-
campus environment is clearly unsafe and impractical.
ICE has also--excuse me, proposed that detainees will have
full contact visitation. However, unlike other agencies, ICE
officers will be barred from performing strip searches to
prevent dangerous weapons and drugs from entering ICE
facilities.
The council views this proposal as unacceptable based on
the safety hazards it presents to ICE detainees, ICE officers,
and contract guards.
With regard to contract facilities and contract guards, DRO
officers in the field report that inappropriate conduct by
contract guards is not uncommon.
The specific allegations made against the contract guards
range from sexual misconduct with detainees and rape to the
smuggling of illegal contraband into facilities such as illegal
drugs. Officers report that ICE managers are aware of the
problem but don't seem interested in doing anything about it.
We believe that the open campus environment will only make
this type of conduct more prevalent as detainee populations
will be free to move about the building unescorted, making them
far more accessible to contract guards and this type of
misconduct.
In an attempt to provide better oversight in the
facilities, the agency has proposed the hiring of 23 detention
service managers. Such a small group is unlikely to have any
significant impact on increasing oversight.
Prior to ICE, there was a position within the Immigration
and Naturalization Service called the Detention Enforcement
Officer, or DEO. INS had officers to perform law enforcement
functions as well as officers to perform detention,
transportation, and court duties.
It is a model that many law enforcement organizations
continue to use with great success. We believe that DEOs would
provide ICE's National detention program with the increased
physical presence and oversight that is currently lacking.
Finally, I do not think it would be an exaggeration to say
that the majority of problems within our detention system as
identified by the agency involve contract workers and not
Federal employees.
For this reason, and because the administration's professed
opposition to unnecessary and inappropriate outsourcing, we
were surprised to learn that on September 1, 2009 the agency
awarded a new contract for $71.5 million to an outside
contractor.
These contractors will again be performing DRO work. in
light of the problems we are now trying to overcome with regard
to contract workers, we simply don't understand the agency's
logic.
Thank you for the opportunity to testify here today. I hope
you found the information that we provided to you useful as you
consider ways to improve the operations of the ICE DRO program.
Thank you.
[The statement of Mr. Crane follows:]
Prepared Statement by Christopher L. Crane
December 10, 2009
Chairman Sanchez and Members of the subcommittee: Good morning. My
name is Chris Crane and I am the vice president of Detention and
Removal Operations (DRO) of the National Immigration and Customs
Enforcement Council 118 of the American Federation of Government
Employees (AFGE). Council 118 is the union representing approximately
7,200 ICE employees who work primarily in Detention and Removal
Operations. I have been an ICE Immigration and Customs Enforcement
Officer for the past 6.5 years. During that time, I have observed many
well-intentioned plans developed by this agency to improve operations,
only to see them fail due to a lack of resources, commitment, or
leadership.
In my capacity as an ICE Immigration Enforcement Agent (IEA), I
have worked the Criminal Alien Program (also known as CAP) for
approximately 5 years. CAP is a program within ICE which targets
criminal aliens who were first arrested by local police or other
Federal law enforcement agencies and charged criminally. I have also
served as a member of an ICE Fugitive Operations Team whose primary
function was to apprehend foreign nationals who had not departed the
United States after receiving an Order of Deportation from a Federal
immigration judge.
ice detention reform plan
Before commenting on the ICE DRO plan, I want to make clear that
the Union has had no involvement in developing the detention reforms
which are currently being proposed by ICE and the Department of
Homeland Security. The Union learned of ICE's plan to reform its
detention facilities through a CNN broadcast. Since that time, our
requests to participate in the planning or implementation of these
reforms or provide any type of input have been unsuccessful. It was not
until November 10-13, 2009, that three Union representatives attended
briefings regarding the agency's proposed reforms. Since no detailed
written plans have been provided to the Council, I can only address
verbal statements made by ICE and DHS representatives during these
briefings, which were later communicated to me by union representatives
who were present.
The Union's overall impression of these proposed reforms is not
positive. We do not believe that the combined efforts of ICE and DHS
have resulted in proposals that will effectively safeguard non-criminal
ICE detainees or ICE employees. In fact, we are quite concerned that
these proposed changes could potentially result in heightened risks for
some groups of ICE detainees as well as ICE employees and contract
guards.
The agency has proposed the construction of multiple new detention
facilities throughout the United States. Each facility will house
approximately 2,000 ICE detainees. The detainees will be allowed to
move freely throughout each of the new ICE detention facilities 24
hours a day.
Phyllis Coven, Acting Director of the ICE Office of Detention
Policy and Planning (ODPP) stated that one goal in constructing these
new detention facilities would be to reflect living conditions that we
might find in our own homes. While these measures clearly reduce
security within ICE detention facilities, ICE has concurrently
announced its goal of having a Nation-wide detainee population
consisting of at least 85 to 90% convicted criminals within the next 12
months.
Even though ICE has identified these new facilities as ``low
custody detention,'' new screening procedures for ICE detainees will
classify both criminal and non-criminal detainees as ``low custody,''
resulting in high criminal populations in these facilities mixed with
individuals who have had little or no contact with police in their
lives. With thousands of criminal detainees moving freely about each
facility, ICE's ability to effectively observe, monitor, and control
inappropriate behavior and safeguard detainees will be greatly
diminished. Previously identified problems such as alleged sexual
misconduct by contract guards with female detainees could rise as
access to detainee populations will be increased in the open campus
environment.
full contact visitation
ICE has proposed full contact visitation rights for detainees, but
maintained its agency-wide ban on conducting strip searches. To our
knowledge, ICE will be the only Federal or State agency to have such a
policy. Agency representatives acknowledged that contraband smuggled
into ICE facilities will increase. With detainee populations of 85% to
90% or greater convicted criminals, and the unstoppable presence of
gangs, we believe that this policy on full contact visits without strip
searches could dramatically increase the presence of illegal drugs and
weapons inside ICE facilities. When questioned about the proposed full
contact visits, agency representatives admitted that they were not
aware of ICE's agency-wide ban on strip searches and therefore did not
consider that fact when creating the proposal of full contact visits.
Union representatives and field managers present were unsettled by this
disclosure.
These proposed changes (and others like them) demonstrate not only
a fundamental misunderstanding of who is housed in these facilities,
but also indicate a stronger desire by the agency to create a
harmonious environment, rather than a safe and efficient one. The lack
of security and oversight within the new facilities will negatively
impact both ICE detainees and ICE employees alike. In the midst of
criminal populations such as this, AFGE simply does not understand why
ICE employees will not be provided with the same security measures as
State, local, and Federal law enforcement officers working in the jails
and prisons around the Nation where ICE detainees were originally held
on criminal charges.
ice detainee populations
The majority of ICE immigration-related arrests are presently
generated by the ICE DRO Criminal Alien Program, and in some areas, its
non-Federal counterpart, the 287(g) Program. This means the majority of
ICE arrests and therefore the majority of individuals in ICE custody,
come from county and State jails. These individuals were arrested by
another law enforcement agency and charged criminally prior to ICE
taking them into custody. This information would appear to be in
conflict with public reports stating that only 50% of ICE detainees are
convicted criminals. In fact, an ICE representative recently stated
that only 53% of all ICE detainees have criminal convictions. However
that same individual was unable to elaborate on the status of the
remaining 47% of ICE detainees, as is frequently the case with public
reports on the matter. Of the 47% of unaccounted for ICE detainees, the
ICE Council believes that as many as 30% to 40% were arrested on
criminal charges but released to ICE without prosecution because local
jails and prosecutors Nation-wide are overwhelmed by the criminal alien
problem and lack the resources to house and prosecute the arrestees.
This has resulted in ICE becoming a dumping ground for individuals
arrested on criminal charges who were never cleared of those charges in
a court of law.
CAP officers focus on individuals who have been arrested for
serious crimes such as sex offenses, crimes of violence, and drug
distribution. It is not uncommon for these prisoners to be released to
ICE custody without conviction within 10 minutes to 24 hours following
notification to the jail by ICE of the prisoner's immigration status.
Virtually none of these prisoners were released to ICE because they
were cleared of the charges against them in a court of law, but rather
because county and State detention facilities were overcrowded and
underfunded. This is an epidemic problem Nation-wide. We believe that
many of the ICE detainees who were arrested on criminal charges, but
were never cleared of those charges in a court of law, do pose a
significant threat to the public, our employees, and most certainly
other ICE detainees who have no criminal history whatsoever.
ICE should avoid implementing any policy that allows many of the
very worst criminals to be released because jails in our local
communities lack the funding to prosecute. Likewise, ICE cannot ignore
the criminal arrest records of aliens without convictions when
classifying them for detention or as part of any overall threat
assessment. Arrest history and prior immigration history are typically
the only records available to ICE officers as foreign nationals in the
United States illegally generally have no other tangible records.
Ignoring the criminal arrest records of detainees who were not cleared
of their charges in a court of law is the equivalent of playing Russian
roulette with the safety of the public, ICE officers, and most
certainly the other detainees in ICE custody whose safety is our
responsibility. The Union believes that ICE leadership has an
obligation to the American public and ICE employees to release more
accurate statistics regarding detainee populations so that there can be
transparent and informed discussion with respect to the threat level of
ICE detainees and its impact on proposed detention reforms.
ice low custody facilities
ICE and DHS defined ``low custody'' as any person who has not been
convicted of one of the following five charges: Murder, rape, armed
robbery, kidnapping, or assault with a deadly weapon. By that
definition, any person who did not receive a conviction for one of
those five offenses would be housed in the proposed low custody
facilities. I will begin by saying that the last ICE detainee who
assaulted me in a detention setting, and received a 13-month Federal
sentence for assaulting a Federal officer, had never been convicted of
any of these crimes. Furthermore, since he did not use a weapon in the
commission of the assault, according to ICE's proposed screening
criteria, he would still be placed in a low custody ICE facility if
arrested again. He would be housed with individuals convicted of non-
violent crimes such as DUI or fraud. He may also be housed with
individuals without a single arrest. He will freely move about the
facility 24 hours a day with 2,000 other detainees who are almost all
convicted criminals themselves.
DHS stated that it is modeling the proposed ICE low custody
facilities after a model currently in use by the Bureau of Prisons
(BOP). It is our understanding that BOP prisoners housed in BOP low
custody facilities have typically proven themselves over long periods
of time (often years) to be trustworthy or rehabilitated before being
placed in a BOP low custody prison.
Conversely, the average custody time of an ICE detainee is just 6
weeks. This is often closer to 1 to 2 weeks. ICE DRO officers will not
have years, but instead typically less than 1 full day to observe
incoming detainees and screen them for low custody detention. DHS has
proposed that an intake questionnaire be used to screen the detainees
for placement in the low custody facilities. We believe that any
questionnaire would have very limited success in ensuring that non-
criminal detainees or unarmed Federal law enforcement officers working
in these open campus criminal facilities would be safe.
Similar detainee screening questionnaires currently in use by ICE
have been ineffective. A recent article in The Houston Chronicle
entitled ``Criminal Deportees Often Fly Unescorted,'' as well as formal
complaints by Senator Mary Landrieu and Congressman Jason Chaffetz
illustrate that fact. All discuss Threat Assessments; a screening
document used by ICE DRO officers to determine if an ICE detainee who
must be transported via commercial aircraft is a threat to the public
and requires an officer escort. ICE DRO officers routinely utilize the
threat assessment screening questionnaires and advise that certain
detainees do pose a threat and recommend full officer escorts as a
safety precaution, only to have ICE supervisors override these
recommendations because of funding and manpower issues. The end result
has been that ICE is now routinely placing dangerous convicted
criminals unescorted on commercial aircraft. The screening
questionnaire is ineffective because the recommendations of DRO
officers are ignored. As cited in the news article, one unescorted ICE
detainee recently charged the cockpit of a commercial jetliner and had
to be restrained by passengers.
assaults on officers
ICE DRO officers are frequently assaulted by ICE detainees. Because
the majority of our detainees come from local jails and State and
Federal prisons, our employees are routinely exposed to some of the
most dangerous criminals and gang members within the United States. ICE
does little if anything to track these assaults or encourage our
officers to file reports when they have been assaulted. Most assaults
against ICE officers currently go unreported and are almost never
prosecuted. AFGE is very concerned that ICE's plans to abandon vital
security protocols currently in place in detention facilities, while
intensifying efforts to arrest criminal aliens, will undoubtedly place
ICE officers and contract guards at greater risk.
relocating ice employees
ICE has stated that the proposed detention facilities are to be
built in new locations solely for the purpose of ensuring that
detainees can be closer to their families for family visitations while
in custody. ICE has stated that its employees will be forced to move
when the new facilities are completed. If ICE's proposals are
implemented, ICE employees will be permanently uprooted from their
families and communities in order to make visitation easier for ICE
detainees who on average are in custody just 6 weeks--often times only
1 to 2 weeks. ICE employees will be forced to take their children out
of schools, give up their homes, leave behind aging parents and sick
family members, and experience financial hardships in order to improve
visitation for detainees who are in custody for 6 weeks or less.
detention enforcement officers
The Immigration Enforcement Agent (IEA) position was created in
2003 following the establishment of ICE. IEAs have the same immigration
arrest authority as ICE Deportation Officers and ICE Special Agents.
The primary purpose of the IEA position was to take over the ICE
Criminal Alien Program which was previously performed by ICE Special
Agents. However, ICE also assigned IEAs to perform detention functions
and transportation duties, which resulted in a substantial increase of
work for the IEAs. It was the equivalent of rolling two full-time
positions into one. As a result, both the Criminal Alien Program and
ICE detention functions have suffered. It is a failure that ICE
headquarters has been reluctant to acknowledge.
Prior to ICE, a legacy Immigration and Naturalization Service (INS)
position called the Detention Enforcement Officer (DEO) existed. This
position did not have immigration arrest authority but did perform all
of the full-time detention and transportation duties for INS detention
facilities and offices throughout the United States. When the DEO
position existed, job responsibilities were clearly defined. INS had
officers to perform law enforcement functions as well as officers to
perform detention duties. It is a model that the U.S. Marshal's Service
and many sheriffs' departments have utilized very successfully for many
years. The Marshals are able to perform both their law enforcement and
detention missions effectively because unlike ICE they have maintained
a separate position that manages detention, performs transportation
functions, and provides court security.
It is our belief that ICE made a critical mistake when it ended the
DEO program. The heavy work volume and complexity of the Criminal Alien
Program and failures within the ICE detention system have identified a
clear need for ICE to have both IEAs and DEOs. DEOs would greatly
improve DRO's ability to perform its law enforcement and detention
functions. Removing detention duties from the IEA position would
drastically increase DRO's ability to arrest criminal aliens and
process cases in an efficient and expeditious manner. With regard to
detention, DEOs would provide ICE's National detention program with the
increased physical presence and oversight that is currently lacking.
private contract detention facilities
With regard to the conduct of contract employees working with ICE
detainees, I must state very clearly that I have not personally
witnessed misconduct by contract workers, nor do I have access to
information gained from agency investigations into these matters. The
only information that I can pass on to this committee is that which I
have been given from ICE officers in the field.
With that said, I have been told that some contract workers in
certain facilities have allegedly engaged in consensual sexual
misconduct with detainees and it has also been alleged that there have
been instances in which contract guards have raped female detainees. It
is also alleged that contractors are smuggling contraband into the
detention facilities. In areas near the southern border of the United
States where contract workers also assist with the transportation of
detainees, it has been alleged that contract guards have been involved
in, and arrested for, smuggling foreign nationals into the United
States. If any of these allegations are true, it certainly begs the
question, ``What is ICE doing to stop these problems?'' As one veteran
ICE officer stated to me last week, during a conversation regarding
contract guards smuggling contraband into detention facilities in his
area, ``ICE managers are well aware of the problems in the contract
facilities, but don't seem interested in doing anything about it.''
While this statement may surprise many in the American public, it
would not surprise ICE employees who are well aware of problems within
ICE management and the unethical manner in which ICE internal
investigations are conducted.
ice internal investigations
No checks and balances currently exist within ICE. ICE investigates
itself. Because ICE investigates itself there is no transparency and
there is no reform or improvement. ICE managers have complete control
over the investigative process. The end result has been that both
ineffective supervisors and supervisors engaged in misconduct are not
disciplined, retain their positions, and are regularly promoted. ICE
employees who voice their concerns about general problems, formally
report more serious matters for investigation, or participate in the
Union are relentlessly retaliated against by agency managers who rely
on the ICE internal investigative process as a tool for retaliation.
The result has been a consistent decline in employee morale and
widespread fear among employees to report wrongdoing. This contributes
to the large-scale inefficiency that presently exists within the
agency. It is our opinion that any attempts to reform the detention
system will be unsuccessful without reforms that hold ICE managers
accountable and protect employees from retaliation.
On March 15, 2009, AFGE Local 3806 sent a letter to DHS Secretary
Janet Napolitano informing her that problems existed within all ICE
internal investigative processes, to include those conducted by the ICE
Office of Professional Responsibility (OPR). Specifically, it was
reported that no avenue currently exists for ICE employees to make
whistleblower disclosures without fear of retaliation by the agency. On
April 29, 2009, the Secretary's office responded and stated that the
matter had been turned over to the DHS Office of Inspector General
(OIG). Also in April 2009, the Union provided a copy of the letter to
ICE Assistant Secretary John Morton. To date, the Union has never been
contacted or received any communications from either Secretary
Napolitano's office or Assistant Secretary Morton. The DHS Office of
Inspector General has also dismissed the concerns raised by the Union
as the Union has never heard from anyone in that office to even
acknowledge that it had received the complaint and that it would
investigate the allegations.
ice oversight
Oversight must be removed from ICE, otherwise ICE managers and
senior leadership will continue to have complete control over the
investigative process and the outcome. The end result will be no
different than it presently exists today as management protects
ineffective supervisors, conceals misconduct and mismanagement, and
retaliates against employees who adhere to ICE policies on reporting
malfeasance.
As part of its proposed detention reforms, ICE has designated
oversight of the ICE detention centers to its internal investigative
division, the ICE Office of Professional Responsibility (OPR). It has
already been well-established that internal policing simply does not
work. This was evidenced in 1998 during the Internal Revenue Service
hearings before the Senate Finance Committee where horrific testimony
disclosed taxpayer and employee abuses that went unchecked because of
the failures of the internal Inspection Services. As a result, the IRS
Restructuring and Reform Act of 1998 was enacted and an independent
investigatory office, the Office of Inspector General for Tax
Administration, was created to remove investigative authorities from
the agency. What was not considered, however, was that many of the
Inspection Services investigators were moved to the newly-created
organization and it took many years for the perception of the
transplanted Inspection Services to change. It is our opinion that any
internal oversight will not be objective as long as the agency is able
to manipulate the investigative process. Again, oversight, to include
that of ICE detention facilities, must be removed from ICE.
detention service managers
Another DHS/ICE proposal on detention reform will create 23 GS-14
positions called Detention Service Managers (DSM). Each of the 23 DSMs
hired will monitor and enforce detention standards at ICE-owned
facilities and contract facilities. Currently, these duties are
supposed to be performed by contract employees called COTRs (Contract
Officer Technical representative). ICE has made clear that it plans to
eventually replace all of the Contract COTRs with DSMs. The Union and
managers in the field appear to be in agreement that the Contractor
COTRs are not providing adequate oversight of detention facilities
utilized by ICE. However, we do not agree with the DSM remedy as
proposed by ICE. Because of problems with Contract COTRs, ICE already
sends ICE employees to COTR training out of a necessity for better
oversight. ``ICE Employee COTRs'' are already performing oversight
duties in the field. However, since these Contractor COTRs are
currently designated by ICE as having the official authority of
oversight, ``ICE Employee COTRs'' are not as effective as they could
be. The Union proposes that by giving the current ``ICE Employee
COTRs'' (who consist of both managers and employees) the same authority
and training as the proposed DSM position, ICE could eliminate and
replace far more than 23 Contractor COTRs--and ICE could literally do
it overnight at less expense. In fact, agency representatives
acknowledged during the briefing that current ``ICE Employee COTRs''
would be providing on the job training to the newly hired GS-14 DSMs.
We see the Union proposal as having the potential for far greater
impact on detention reform in much less time.
ice officers not properly utilized
ICE DRO currently has two law enforcement officer positions which
are the ICE Immigration Enforcement Agent (IEA) and ICE Deportation
Officer (DO) positions. Both positions have full immigration arrest
authority and their combined officer numbers account for a substantial
percentage of the small number of law enforcement officers Nation-wide
who have immigration arrest authority. Both positions are very limited
in number and both are in high demand throughout the United States,
especially as it pertains to criminal aliens. However, starting under
the previous administration, ICE has initiated practices and policies
that have greatly reduced the ability of ICE officers to provide much-
needed law enforcement functions. Instead of providing adequate numbers
of ICE support staff to perform clerical work and data entry, ICE has
delegated these duties to ICE officers at the expense of their assigned
law enforcement duties.
In some areas such as the Texas Rio Grande Valley, hundreds of ICE
officers are not being utilized to work the Criminal Alien Program in
local jails and prisons. The majority of ICE DRO agents and officers
throughout the United States are prohibited from making street arrests
as ICE is more concerned about negative publicity than assisting State
and Federal law enforcement agencies who attempt to reduce crime and
gang activity in their areas. Likewise, ICE officers complain that when
the danger levels of their duties are heightened, ICE does not allow
officers to take needed equipment like shotguns because supervisors are
more concerned about the possibility of negative publicity than the
safety of their own officers.
manpower and morale
With an existing workforce that is drastically understaffed and
overworked, senior leadership continues to create massive new programs
that will require hundreds if not thousands of new employees to
successfully implement. However at ICE, manpower-intensive programs are
simply implemented at the local and National level without any planning
or consideration for the staffing and resources needed to accomplish
them.
ICE managers have already announced that ICE DRO is taking over the
Law Enforcement Support Center (LESC), which will require DRO employees
to man a 24-hour National call center to assist law enforcement
officers from other agencies in the field. This added responsibility is
only one of many that ICE plans to implement Nationally through a new
program called Secure Communities. Secure Communities will require that
100% of all U.S. Citizens and non-citizens booked into every jail in
the United States be screened in ICE databases. We anticipate that this
will create an unprecedented and large-scale increase in the number of
requests for ICE assistance as well as an equally large workload
increase to ICE employees with the rise of ICE arrests, transportation
duties, and needs for detention space. We have heard no proposals from
the agency regarding the large-scale hiring that will be needed to
perform these new duties. ICE does not have the manpower, resources, or
funding to support what it is already doing, yet ICE continues to
implement many new large-scale programs and initiatives, and ignores
the warnings and grave concerns expressed by union officials,
employees, and its own managers.
Over the years, agency surveys of employee morale have consistently
shown morale among ICE employees to be among the lowest of all Federal
employees, something which ICE leadership has failed to address. Morale
will continue to decline as ICE implements new programs but fails to
consider its employees and the already heavy workload they carry. Many
managers have never performed the duties that our employees currently
perform, nor do they have experience with the tools and practices now
in use to perform those duties. A complete disconnect exists between
agency managers, their employees, and what's happening in the field.
Directives coming from ICE Field Offices (essentially District Offices)
and ICE Headquarters appear to lack any input from the field, are often
completely misguided and nonsensical, and create not only unnecessary
work for ICE employees but also confusion and outrage.
There is no uniformity or consistency throughout ICE as each Field
Office creates its own fiefdom and makes its own rules. As just one
example, pay practices are different in every ICE office across the
country, and those practices change constantly. When the Union notifies
the agency of legal violations regarding employee pay issues, we are
ignored and forced to waste taxpayer dollars to litigate entitlements
that are already granted by law.
The negotiated agreement between the agency and the Union as well
as Federal Statute is ignored and managers are not held accountable for
their actions or inactions. The inaction by the agency to take care of
its workforce demonstrates that it does not care about its most
important resource. The agency's Office of Employee and Labor Relations
lacks concern for consistent policies, productive human resources
programs, effective labor-management relations, and fair and equitable
treatment of employees. Rather than advise senior leadership and
managers that laws, rules, regulations, and the negotiated agreement
must be followed, it focuses its efforts toward supporting problematic
managers who commit acts of misconduct, abuse their authority, and
fabricate allegations and take unnecessary and excessive disciplinary
actions against employees.
pay equity for dro employees
In October of this year, DHS Secretary Janet Napolitano suddenly
and without warning, announced that approximately 50,000 Customs and
Border Protection (CBP) officers would be noncompetitively promoted
from GS-11 to GS-12. The much smaller group of approximately 2,000 ICE
IEAs were excluded in this upgrade although efforts have been underway
through attempted legislation for no less than 2 years to raise their
grades to GS-11. IEAs are assigned duties previously performed by GS-13
Special Agents and attend an academy that is lengthier than that of
many of the CBP officers recently promoted to GS-12. IEAs have no
career ladder promotions even though they share the same job series
with GS-12 ICE Deportation Officers. ICE may be the only State or
Federal law enforcement agency in the Nation that does not provide a
career ladder to its own officers and instead hires less qualified
candidates from other agencies for higher-paying nonsupervisory
positions.
Although the ICE Detention and Removal Assistants (DRAs) are only
at the GS-7 pay grade there are no existing career ladder positions
within the agency to afford them any opportunity to improve their
livelihood through advancement and opportunity to move to other
positions. For years it has been rumored that ICE will finally
acknowledge the work of these employees and promote them because of the
continuing assignment of more complex duties, yet the agency never
acts.
The agency has actively gathered work statistics from ICE
Deportation Officers (DOs) for several years. A recommendation for
promotion to the GS-13 grade level from the previous ICE Director of
DRO to Assistant Secretary John Morton accidentally became public
several months ago, but with years of research and recommendations from
senior-level ICE managers, no changes were made and as a consequence
this group was also ignored during Secretary Napolitano's massive
promotions.
It is our opinion that DHS and ICE have failed for years to
acknowledge the work of DRO employees and provide pay parity for its
employees. To leave these highly deserving DRO employees out of this
massive promotion demonstrates yet another failure by ICE, a failure
that has taken morale to an all new low. ICE employees will now begin a
mass exodus to higher-paying jobs in other agencies while at the same
time qualified individuals who would otherwise apply for ICE entry-
level positions will take their applications to the agencies who afford
them advancement opportunity.
outsourcing of employee work
Contrary to the mandates established by President Obama to return
Federal employee work to the Government, ICE recently awarded a new
contract in the amount of $71.5 million to an outside contractor. This
contract, which is for services for the period September 1, 2009
through August 31, 2014, includes work that is currently performed by
bargaining unit employees. The Union believes that the agency's goal is
to eventually eliminate the Detention and Removal Assistant (DRA)
positions in ICE and will accomplish this goal through a reduction in
hiring and attrition of the existing employees while simultaneously
increasing contractor personnel to perform the DRA work.
In a continuing repudiation of the existing negotiated agreement
between management and the Union, the Union was first notified of this
contract on September 21, 2009 and only after the awarded contract
execution date of September 11, 2009. During the briefing that was
provided to the Union by ICE on September 21, 2009, officials attempted
to convince us that this contract was not considered ``contracting
out'' but rather ``contracting in,'' a newly-coined phrase by ICE
management. The Union was also notified that provisions exist within
the life of this contract to amend it to increase the scope and
monetary value of the contract.
conclusion
I hope that my testimony here today provides the Members of this
subcommittee with a clear view of the status of the DRO program at ICE.
Clearly, there are problems and great risks associated with the
Detention Reform Plan that have not been adequately considered.
Perhaps most troubling to the ICE Council is the fact that the
Union, ICE employees, and managers in the field have been excluded from
the development of the proposed detention reforms. While we always
welcome new input, we are certain that no one possesses more knowledge
regarding ICE detention than ICE employees. It is unthinkable that the
Union and ICE employees have been excluded from this process. We
certainly expected more from this administration. However, we remain
optimistic and look forward to opportunities for participation in the
future.
We commend this committee's efforts to bring oversight to the
activities of this troubled agency, and unconditionally commit our
resources to this or any future inquiries made by this honorable body.
Thank you for allowing me the opportunity to speak on behalf of our ICE
employees.
This concludes my testimony, and I welcome any questions that you
may have.
Ms. Sanchez. Thank you, Mr. Crane. Thank you for your
testimony.
I now recognize Mr. Kerwin to summarize his statement for 5
minutes or less.
STATEMENT OF DONALD M. KERWIN, JR., VICE PRESIDENT FOR
PROGRAMS, MIGRATION POLICY INSTITUTE
Mr. Kerwin. Madam Chairwoman and distinguished Members of
the subcommittee, I appreciate the opportunity to testify
before you today.
I will speak today on some of the challenges related to the
design of a detention system that reflects ICE's civil
detention authorities.
Detention serves two primary purposes--first, to ensure
that persons in removal proceedings attend all of their
hearings and can be removed if they are ordered removed, and
second, to protect the public if necessary.
Consistent with these goals, the central aim of detention
reform should be to ensure that persons in ICE custody are
placed in the least restrictive settings, which will typically
be the least costly, that are necessary to ensure their
appearances at all legal proceedings and to protect others.
Under a civil detention system, ICE should carefully
screen, classify, and treat detainees as follows. First, ICE
should continue to detain persons who represent a danger to
others.
Eleven percent of ICE detainees with criminal records have
committed violent crimes. ICE will need secure facilities to
detain this population and others that represent a threat. But
most ICE detainees do not have criminal records, and many of
those with criminal records committed relatively minor crimes.
Second, ICE should ensure that certain immigrants not be
placed in removal proceedings and thus not be subject to
detention. This would include refugees, persons eligible for
lawful permanent residence, and those with credible claims to
U.S. citizenship.
Third, ICE should release detainees who are not a danger or
a flight risk, particularly those whose cases raise
humanitarian concerns such as bona fide asylum seekers, torture
survivors, the very elderly, pregnant and nursing women.
Fourth, ICE should continue to expand and improve its
alternative-to-detention programs. While not appropriate for
everyone, these programs can offer a cost-effective and humane
alternative to detention. My written statement details several
ways in which existing programs can and should be strengthened.
Fifth, ICE must expand its efforts to identify alternative
housing options for civil detainees. It should also
aggressively explore and adopt standards that reflect that--
civil detention authorities and the needs of those in its
custody.
ICE's National detention standards are broadly modeled on
American Correctional Association standards for adult local
detention facilities which apply to persons awaiting criminal
trial or serving relatively short criminal sentences.
Civil detention standards should ensure the separation of
detainees based on a rigorous assessment of the risks that they
present to others, prohibit the use of shackling, strip
searches, handcuffing, solitary confinement and Tasers on non-
violent detainees, preclude transfers that would negatively
affect a detainee's legal case or an attorney-client
relationship, place detainees in facilities near legal counsel,
allow contact visits with family members, and assure that those
visits can go beyond the current 30-minute minimum, and provide
for detainee access to outdoor recreation throughout the day
and not just a minimum of 1 hour per day of exercise outside
the cell.
Finally, with respect to civil detention, ICE should be
particularly vigilant in reviewing the custody of persons who
have been confined for more than 6 months, particularly those
ordered removed from the country. This would be consistent with
the two U.S. Supreme Court decisions.
In September 2009, my agency released a report that
concluded that ICE's information systems and, in particular,
its ENFORCE database, did not appear to track the kind of
information that would allow the agency to comply with the law
or to meet its own detention standards.
The report's overarching recommendation was that ICE ensure
that its information systems allow it to make informed
decisions related to who it must detain and who it must
consider for release, who should be placed in an alternative-
to-detention program, and whether it had adhered to its
National standards in particular cases.
ICE should also expand its oversight, direct control, and
monitoring of its own facilities and programs so that it can
successfully implement its detention reforms.
Private prison corporations manage all but one of ICE's
service processing centers and its largest contract facilities.
Collectively, these facilities hold more than half of all ICE
detainees.
ICE also relies on private contractors to conduct most on-
site monitoring of its detention facilities, to annually assess
compliance with detention standards at its facilities, and to
manage two of its three alternative-to-detention programs.
ICE deserves praise for its decision to revamp its
detention system, for its candid assessments of the challenges
the agency faces, for its reforms to date and its engagement of
stakeholders to date.
Counsel needs to be vigilant, however, in helping to ensure
that this process continues. Thank you.
[The statement of Mr. Kerwin follows:]
Prepared Statement of Donald M. Kerwin, Jr.
December 10, 2009
Madam Chairwoman and distinguished Members of the subcommittee, my
name is Donald Kerwin and I am vice president for Programs at the
Migration Policy Institute (MPI). MPI is an independent, non-partisan,
non-profit think tank headquartered in Washington, DC, and dedicated to
the analysis of the movement of people world-wide. I appreciate the
opportunity to testify before you today on the U.S. immigration
detention system.
On August 6, 2009, Homeland Security Secretary Janet Napolitano and
the Assistant Secretary of U.S. Immigration and Customs Enforcement
(ICE), John Morton, announced plans to restructure the Nation's
immigration detention system.\1\ On October 6, 2009, ICE released a
report by Dr. Dora Schriro, the first director of ICE's Office of
Detention Policy and Planning (ODPP), which has been charged with
designing a detention system based on the agency's civil detention
authorities.\2\ The report affirmed that ICE detention facilities:
---------------------------------------------------------------------------
\1\ U.S. Immigration and Customs Enforcement, ``ICE 2009
Immigration Detention Reforms'' (Fact Sheet, August 6, 2009), http://
www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.
\2\ Ibid.
---------------------------------------------------------------------------
have been ``built, and operate, as jails and prisons to
confine pre-trial and sentenced felons'';
rely on ``correctional incarceration standards designed for
pre-trial felons and on correctional principles of care,
custody and control'';
``impose more restrictions and carry more costs than are
necessary to effectively manage the majority of the detained
population.''\3\
---------------------------------------------------------------------------
\3\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations'' (Washington, DC: Immigration and Customs Enforcement,
October 6, 2009), 2-3, http://www.ice.gov/doclib/
091005_ice_detention_report-final.pdf.
---------------------------------------------------------------------------
As part of the new initiative, ICE intends to centralize management
of its detention system, reduce its reliance on local jails and private
prisons, and revamp the standards governing those in its custody. The
Schriro report represented a milestone in agency candor. It also
highlighted the challenges that ICE faces in transforming its detention
system, including:
the diversity of ICE detainees by country of origin, gender,
age, criminal history, immigration status, detention status,
time in custody, and claims to remain;
the size of the system (nearly 380,000 detained in fiscal
year 2008) and its six-fold growth since 1994;
the hundreds of facilities within ICE's system, the multiple
types of facilities, their geographic diversity, and the
misalignment between detention capacity and demand;
ICE's extensive alternative-to-detention programs;
the multiple enforcement programs that feed into the
detention system, many of which ICE does not oversee or
control;
longstanding problems in its information systems; and
the law enforcement culture of ICE detention staff and the
criminal standards that govern its facilities.\4\
---------------------------------------------------------------------------
\4\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?
(Washington, DC: Migration Policy Institute, September 2009), 22-23,
http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf; Dr.
Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 5-13.
---------------------------------------------------------------------------
Given the early stage of the transformation process, it remains an
open question how a civil detention system will differ from the current
system. An initial challenge may be the lack of an analogous civil
detention population. Suitable standards for immigrant detainees may
differ markedly, for example, from standards that are appropriate for
persons detained for mental health or public health reasons. As a
preliminary task, ODDP should analyze potentially analogous civil
detention systems in the United States, study immigrant ``reception
centers'' and alternative housing models from other nations, and work
closely with non-governmental organizations (NGOs) in developing
suitable detention standards.
This testimony will focus on three issues. First, it will discuss
the need for discretion in placing persons in removal proceedings and,
thus, subjecting them to detention. It will outline which immigrants
should be eligible for alternative-to-detention programs and which
should be detained and under what conditions. Second, it will highlight
deficiencies in ICE's information systems that must be remedied in
order for detention reform to succeed. Third, it will describe the
extent to which ICE relies on private corporations to manage its
detention system, and the implications of privatization for ICE's
detention reform initiative.
i. civil detention: who should be released, who detained, and under
what conditions?
The Schriro report recognizes the need to create ``the requisite
management tools and informational systems to detain and supervise
aliens in a setting consistent with assessed risk.''\5\ Building on
this proposition, the goal of detention reform should be to ensure that
persons in ICE custody are placed in the least restrictive setting
necessary to ensure their appearances at all legal proceedings and, if
necessary, to protect the public. Under such a system, ICE would
carefully screen each detainee, classify them, and treat them as
follows:
---------------------------------------------------------------------------
\5\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 3.
---------------------------------------------------------------------------
First, ICE would continue to detain persons who represent a danger
to others. ICE's detention system contains persons with violent
criminal histories who pose a threat to others. As of September 1,
2009, 11 percent of ICE detainees with criminal records had committed
violent crimes.\6\ ICE will need secure facilities for this population.
However, an MPI report found that 58 percent of persons in ICE custody
on January 25, 2009 did not have criminal records and, of those with
criminal records, the most serious convictions included traffic-related
(13 percent) and immigration-related offenses (6 percent).\7\ According
to the Schriro report, ICE detainees behave differently from criminally
incarcerated populations. The majority are ``motivated by the desire
for repatriation or relief, and exercise exceptional restraint'';
``relatively few detainees file grievances, fights are infrequent, and
assaults on staff are even rarer.''\8\ For these reasons, less
restrictive means of detention should be available to most immigrants,
even those with criminal records.\9\
---------------------------------------------------------------------------
\6\ Ibid., 6.
\7\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?,
20.
\8\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 21.
\9\ It should also be noted that ICE detainees have served whatever
criminal sentence they have received prior to coming into ICE custody.
---------------------------------------------------------------------------
Second, ICE should ensure that certain immigrants not be placed in
removal proceedings and, thus, not be subject to the detention regime.
This list would include persons who are eligible for adjustment of
status to lawful permanent residence, persons with credible claims to
U.S. citizenship, and refugees.\10\ Overall, the Department of Homeland
Security (DHS) should exercise discretion in placing persons in removal
proceedings based on their immigration status, humanitarian and
equitable factors, the severity of their offenses and likelihood of
prevailing in immigration court.\11\ Like every successful law
enforcement agency, ICE should assess ``how most effectively to use its
resources'' and the ``meaningful differences in culpability and
equities'' among those who are potentially subject to its
authorities.\12\ Given the overwhelming demands on the detention system
and immigration courts, persons who enjoy legal status, who will soon
obtain status, or who otherwise are not likely to be removed should not
be put into removal proceedings.
---------------------------------------------------------------------------
\10\ In recent months, ICE has placed lawfully admitted refugees
who have committed no crime into removal proceedings because they have
not adjusted to permanent resident status after a year in the country.
\11\ Doris Meissner and Donald Kerwin, DHS and Immigration: Taking
Stock and Correcting Course (Washington, DC: Migration Policy
Institute, February 2009), 25, http://www.migrationpolicy.org/pubs/
DHS_Feb09.pdf.
\12\ Ibid.
---------------------------------------------------------------------------
Third, ICE should release detainees who are not a danger or a
flight risk, particularly those whose cases raise humanitarian
concerns. In fiscal year 2008, 51,000 detainees were released either
through bond (29,000), an order of recognizance (12,000), an order of
supervision (10,000) or parole (650).\13\ ICE has committed to
developing an assessment tool to guide its decisions related to
release, eligibility for alternative-to-detention programs and
placement within its detention facilities.\14\ This tool should allow
it to release bona fide asylum seekers, torture survivors, persons with
strong family and equitable ties in the United States (particularly
lawful permanent residents), pregnant and nursing women, primary
caregivers, the elderly, families, survivors of human trafficking, and
stateless persons and other detainees who cannot be removed.
---------------------------------------------------------------------------
\13\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 6.
\14\ U.S. Department of Homeland Security, ``ICE Detention Reform:
Principles and Next Steps'' (Fact Sheet, October 6, 2009), http://
www.dhs.gov/xlibrary/assets/press_ice_detention_reform_fact_sheet.pdf.
---------------------------------------------------------------------------
Fourth, ICE should continue to expand and improve its alternative-
to-detention programs.\15\ Alternative-to-detention programs can offer
a cost-effective, humane alternative to detention, but they do not suit
every detainee. Persons who represent a danger or a flight risk, even
under the conditions of an alternative-to-detention program, should not
be eligible for these programs. Likewise, alternative-to-detention
programs are not appropriate for persons who would otherwise be
released on parole, bond, supervision, or their own recognizance.
---------------------------------------------------------------------------
\15\ Congress appropriated $70 million for alternative-to-detention
programs in fiscal year 2010. Committees on Appropriation, ``FY2010
Conference Summary: Homeland Security Appropriations'' (October 7,
2009), http://appropriations.house.gov/pdf/
Homeland_Security_FY10_Conference.pdf.
---------------------------------------------------------------------------
As of September 1, 2009, ICE was supervising 19,160 people in its
three alternative-to-detention programs.\16\ In July 2009, ICE reported
to MPI that it does not collect ``complete and accurate information''
that allows it to assess the effectiveness or cost of these programs,
and that ``its previously released reports [were] sometimes
incorrect.''\17\ It nonetheless reported that 87 percent of the
participants in its Intensive Supervision Appearance Program (ISAP), 96
percent of those in its Enhanced Supervision Reporting (ESR) program
and 93 percent of those in its Electronic Monitoring (EM) program
appeared for their removal hearings.\18\ It estimated direct program
costs, not including ICE staff time, to be $14.42 per day for ISAP,
$8.52 per day for ESR and between 30 cents and $5 per day for EM.\19\
By contrast, hard detention costs can exceed $100 per day.\20\ In
October 2009, the Houston Chronicle reported that earlier ICE reports
claiming 99 percent appearance rates for persons participating in the
ISAP program did not include program participants whom ICE could not
locate (i.e. absconders).\21\
---------------------------------------------------------------------------
\16\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 6.
\17\ Letter from Dr. Dora Schriro, Special Advisor, Office of the
Assistant Secretary, U.S. Immigration and Customs Enforcement, to
Donald Kerwin, Vice President for Programs, Migration Policy Institute
(received July 2, 2009).
\18\ Ibid.
\19\ Ibid.
\20\ U.S. Department of Homeland Security, ``ICE Detention Reform:
Principles and Next Steps'' (Fact Sheet, October 6, 2009).
\21\ Susan Carroll, ``Flaws found in options for immigrant
detention,'' Houston Chronicle, October 20, 2009.
---------------------------------------------------------------------------
While ICE record-keeping and information systems must improve,
alternative-to-detention programs cost far less than hard detention and
can ensure high court appearance rates. For this reason, alternative-
to-detention programs should be expanded. They should also be
strengthened as follows:
The screening of program participants should be based on a
more reliable assessment of risk. Screening has been shown to
be crucial to the success of alternative-to-detention and
supervised-release programs.\22\ As stated, ICE has committed
to creating a risk assessment tool to determine who should
participate in its alternative-to-detention programs.\23\
---------------------------------------------------------------------------
\22\ Megan Golden, Oren Root, and David Mizner, The Appearance
Assistance Program: Attaining Compliance with Immigration Laws Through
Community Supervision (New York: Vera Institute for Justice, 1998), 7-
9.
\23\ U.S. Department of Homeland Security, ``ICE Detention Reform:
Principles and Next Steps'' (Fact Sheet, October 6, 2009).
---------------------------------------------------------------------------
The removal proceedings of persons in alternative-to-
detention programs should be expedited. Rates of absconsion and
costs will necessarily increase the longer participants remain
in alternative-to-detention programs.\24\
---------------------------------------------------------------------------
\24\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 21.
---------------------------------------------------------------------------
Alternative-to-detention programs should assist participants
to secure legal counsel and otherwise to obtain accurate and
timely information about the removal process. These factors
have proven crucial to ensuring high court appearance
rates.\25\
---------------------------------------------------------------------------
\25\ Oren Root, The Appearance Assistance Program: An Alternative
to Detention for Noncitizens in US Immigration Removal Proceedings (New
York: Vera Institute for Justice, 2000), 3-4; Megan Golden, Oren Root
and David Mizner, The Appearance Assistance Program: Attaining
Compliance with Immigration Laws Through Community Supervision, 10-13.
---------------------------------------------------------------------------
Alternative-to-detention programs should be treated--
particularly if they are strengthened in the ways set forth
above--as alternative forms of detention, and thus opened to
mandatory detainees. Mandatory detention laws broadly cover
significant numbers of persons who, with proper supervision,
would not be a flight risk. Given that 66 percent of ICE
detainees must be detained,\26\ the significant expansion of
alternative-to-detention programs--and the resulting cost
savings to the Government and benefit to the affected
individuals--will depend on whether alternatives to detention
are found to be soft detention or constructive custody.
---------------------------------------------------------------------------
\26\ See, e.g., Yong v. INA, 208 F. 3d 1116, 1118 (9th Cir. 2000)
(release to a halfway house held to be a form of civil custody).
---------------------------------------------------------------------------
Fifth, ICE should expand its efforts to identify alternative
housing options for detainees, including the use of ``converted hotels,
nursing homes, and other residential facilities.''\27\ It should also
aggressively explore and adopt standards that reflect its civil
detention authorities and the needs of those in its custody. It should
collaborate with a wide range of stakeholders, including NGOs, in
identifying alternative housing and developing appropriate standards.
---------------------------------------------------------------------------
\27\ U.S. Department of Homeland Security, ``ICE Detention Reform:
Principles and Next Steps'' (Fact Sheet, October 6, 2009).
---------------------------------------------------------------------------
In September 2000, the Immigration and Naturalization Service (INS)
issued 36 National detention standards, covering security, the exercise
of religion, medical care, visitation, telephone access, legal access,
and transfers.\28\ In 2008, ICE announced plans to develop the
performance outcomes that its National detention standards are intended
to achieve.\29\ ICE will continue to phase in its performance-based
standards--which include new standards on media interviews and tours,
searches, sexual abuse, and staff training--throughout 2010.\30\
---------------------------------------------------------------------------
\28\ DHS subsequently added two more standards, bringing the (then)
total to 38.
\29\ U.S. Immigration and Customs Enforcement, Operations Manual:
ICE Performance Based National Detention Standards (PBNDS) (last
modified October 7, 2009), http://www.ice.gov/partners/dro/PBNDS/
index.htm.
\30\ U.S. Immigration and Customs Enforcement, ``Detention
Management Program'' (last modified February 20, 2009), http://
www.ice.gov/partners/dro/dmp.htm.
---------------------------------------------------------------------------
The National detention standards do not cover ICE detainees who are
held in Bureau of Prisons (BOP) facilities. In addition, they do not
apply in their entirety to the local jails covered by inter-
governmental service agreements (IGSAs).\31\ IGSA agreements allow
localities to establish ``alternative'' practices that ``meet or exceed
the intent'' of different sections of most of the standards. Moreover,
even when the standards apply, compliance remains spotty. Recent
reports by the DHS Office of Inspector General (OIG) and respected NGOs
have found:
---------------------------------------------------------------------------
\31\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 10.
---------------------------------------------------------------------------
non-compliance with standards related to detainee transfers,
including with the requirement that detainees receive medical
examinations within 14 days of arriving at a facility.\32\
---------------------------------------------------------------------------
\32\ U.S. Department of Homeland Security, Office of Inspector
General, Immigration and Customs Enforcement's Tracking and Transfers
of Detainees (Washington, DC: US Department of Homeland Security,
Office of Inspector General, 2009), 6-9, 11, http://www.dhs.gov/xoig/
assets/mgmtrpts/OIG_09-41_Mar09.pdf.
---------------------------------------------------------------------------
widespread violations of multiple standards based on a
review of previously confidential assessments by ICE, the
American Bar Association, and the United Nations High
Commissioner for Refugees.\33\
---------------------------------------------------------------------------
\33\ Karen Tumlin, Linton Joaquin and Ranjana Natarajan, A Broken
System: Confidential Reports Reveal Failures in U.S. Immigrant
Detention Centers (Los Angeles: National Immigration Law Center, 2009),
http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf.
---------------------------------------------------------------------------
violations of the standards governing access to legal
materials, legal orientation presentations, and attorneys.\34\
---------------------------------------------------------------------------
\34\ Amnesty International, ``Jailed Without Justice'' (Amnesty
International, March 2009), 30-36, http://www.amnestyusa.org/immigrant-
rights/immigrant-detention-report/page.do?id=1641033; Human Rights
First, ``U.S. Detention of Asylum Seekers: Seeking Protection, Finding
Prison'' (New York, NY: Human Rights First, April 2009), 55-59, http://
www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf.
---------------------------------------------------------------------------
exponential increases in detainee transfers in recent years,
and the deleterious impact of transfers on legal
representation.\35\
---------------------------------------------------------------------------
\35\ Human Rights Watch, ``Locked Up Far Away'' (New York: Human
Rights Watch, December 2, 2009), http://www.hrw.org/en/reports/2009/12/
02/locked-far-away; U.S. Department of Homeland Security, Office of
Inspector General, ``Immigration and Customs Enforcement Policies and
Procedures Related to Detainee Transfers'' (Washington, DC: U.S.
Department of Homeland Security, Office of Inspector General, November
2009), 2-4, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-
13_Nov09.pdf.
---------------------------------------------------------------------------
The ICE standards are broadly modeled on American Correctional
Association (ACA) standards for adult local detention facilities, which
apply to persons who are awaiting criminal trial or serving relatively
short criminal sentences. In many particulars, the ACA standards are
not suitable to immigrant detainees. For example, the ACA standards
allow for only 25 square feet of ``unencumbered space'' for inmates in
multiple occupancy rooms and only 35 square feet of ``unencumbered
space'' for those confined in excess of 10 hours per day.\36\ The ACA
access to counsel standard stipulates only that counsel is ``ensured''
and that inmates ``will be assisted in making confidential contact with
their attorneys,'' a standard altogether inadequate for civil detainees
who are not guaranteed counsel at Government expense.\37\ In other
ways, ACA standards provide for more generous treatment than many ICE
detainees receive, requiring for example that facilities be
``geographically accessible to . . . community agencies, and inmates'
lawyers, families, and friends.''\38\
---------------------------------------------------------------------------
\36\ Performance-Based Standards for Adult Local Detention
Facilities, Fourth Edition (Lanham, MD: American Correctional
Association, June 2004), 4.
\37\ Ibid., 99.
\38\ Standards for Adult Local Detention Facilities, Third Edition
(Lanham, MD: American Correctional Association, 1991), 33.
---------------------------------------------------------------------------
More to the point, ICE and ACA standards are not generally
appropriate to civil detainees. While hardly an exhaustive list, civil
detention standards should:
ensure that ICE detainees can wear their own clothes, rather
than prison uniforms;
provide for detainee access to outdoor recreation throughout
the day, and not just a minimum of 1 hour each day of exercise
``outside the cell, and outdoors, when practicable'';
allow detainees to keep personal possessions with them,
including family photographs;
guarantee that legal orientation presentations are provided
to all detainees;
ensure the separation of detainees without criminal
histories from those with criminal histories;
prohibit the use of shackling, strip searches, handcuffing,
solitary confinement, and tasers on non-violent detainees;
preclude transfers that would negatively affect a detainee's
legal case or an attorney/client relationship;
place detainees in facilities near legal counsel and, for
persons with special medical or other needs, near appropriate
care; and
allow contact visits with family members and ensure that
visits are not limited to the current 30-minute minimum.\39\
---------------------------------------------------------------------------
\39\ U.S. Immigration and Customs Enforcement, Operations Manual:
ICE Performance Based National Detention Standards (PBNDS), PBNDS 5,
13, 18, 29, 32, 37 and 41.
---------------------------------------------------------------------------
Sixth, ICE should be particularly vigilant in reviewing the custody
of persons who have been confined for more than 6 months, particularly
those who have been ordered removed from the country. According to the
Schriro report, less than 1 percent of all ICE detainees are detained
for 1 year or more.\40\ However, it does not follow that ICE does not
have a significant number of long-term detainees in its custody. MPI
found that 4,154 of those in ICE custody on January 25, 2009 had
already been detained for more than 6 months as of that date.\41\ Of
these, 992 had been detained for more than 6 months following receipt
of a removal order.\42\ The latter is a particularly significant figure
since the Supreme Court has held that detainees must be released within
6 months of a removal order unless the Government can show that there
is ``significant likelihood of removal in the reasonably foreseeable
future.''\43\
---------------------------------------------------------------------------
\40\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 6.
\41\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?,
19.
\42\ Ibid., 17.
\43\ Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
---------------------------------------------------------------------------
ii. the need to strengthen ice's information systems
In September 2009, MPI released a report on the immigration
detention system, titled Immigrant Detention: Can ICE Meet Its Legal
Imperatives and Case Management Responsibilities?\44\ The report
examines whether ICE's information systems allow it to determine which
detainees:
---------------------------------------------------------------------------
\44\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?
(Washington, DC: Migration Policy Institute, September 2009), http://
www.migrationpolicy.org/pubs/detentionreportSept1009.pdf.
---------------------------------------------------------------------------
fall within ``mandatory'' detention categories, meet the
narrow exceptions for release under these laws or ultimately
will become eligible for release;
have a viable claim to U.S. citizenship;
have special medical conditions, mental illness, or
disability, or other humanitarian issues that necessitate
special care;
have been treated in compliance with the National detention
standards;
are eligible for the custody review procedures available to
persons who have been ordered removed, but who cannot be
removed within 90 days;
constitute a risk to abscond (if released) or a threat to
others, whether within the detention setting or outside of it.
Over the years, Government and human-rights organization reports
have harshly criticized ICE's detention system for its failure to
adhere to legal standards related to custody and release, and its
failure to abide by its National detention standards. The MPI report
raised the issue of whether ICE could comply with the law and adhere to
its standards. Underscoring the need for reform, ICE disclosed on
August 17, 2009 that 10 persons whose deaths had not previously been
reported had died in its custody between 2004 and 2007.\45\
---------------------------------------------------------------------------
\45\ U.S. Immigration and Customs Enforcement, ``ICE identification
of previously un-tracked detainee deaths highlight importance of
detention reform'' (August 17, 2009), http://www.ice.gov/pi/nr/0908/
090817washington.htm.
---------------------------------------------------------------------------
MPI's report detailed the legally significant information that ICE
does not appear to track. It also stressed the need for timely,
accurate, and complete data entry into a consolidated database. As
DHS's Office of Inspector General has warned, absent timely data entry,
``family members and legal representatives could be misinformed of the
whereabouts of detainees'' and ``there is a potential risk of
improperly accounting for dangerous detainees.''\46\
---------------------------------------------------------------------------
\46\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 10.
---------------------------------------------------------------------------
The Schriro report recommends that ICE develop and implement
standards and procedures ``that specifically reflect the legal
requirements of the detained population.''\47\ The report also
identifies other severe problems in ICE's information systems. It
concludes that:
---------------------------------------------------------------------------
\47\ Ibid., 18.
---------------------------------------------------------------------------
the ``reliability, timeliness, distribution, and storage''
of detention information, including detainee complaints, ``are
not uniform and can hinder oversight'';
ICE does not produce the kind of reports that ``[c]omparable
detention systems routinely rely'' upon, including ``a daily
count sheet of all detainees in custody by facility, a roster
of the population assigned to alternative-to-detention
supervision, a current list of all detention facilities with
information about their operating and emergency capacities, the
number of beds that are vacant and off-line for repair and per-
diem pricing'';
the majority of computer entry screens are located at
``centralized sites such as major facilities, field offices,
and sub offices, and not at the places of detention,
particularly IGSA locations'' and, thus, ``the recording of the
book-ins and book-outs frequently occurs after the actual
events'';
ICE's information systems do not allow the agency to make
population ``forecasts'' for the purposes of planning or
detention policymaking;
deportation officers, the primary ICE contact to detainees,
do not consistently document their meetings with detainees; and
detainees are not always assigned new deportation officers
when transferred.\48\
---------------------------------------------------------------------------
\48\ Ibid., 14, 16-18, 22.
---------------------------------------------------------------------------
The health care provided to immigrant detainees has been a
recurrent concern of Congressional oversight committees and human
rights groups. The Schriro report recommends that ICE conduct
``preliminary medical and mental health screening,'' develop a system
for ``the medical and mental health classification for detainees'' and
routinely assess those ``who remain detained or who exhibit signs of
distress.''\49\ It reported that the agency:
---------------------------------------------------------------------------
\49\ Ibid., 25-26.
---------------------------------------------------------------------------
uses segregation cells to detain people with specialized
medical needs, mentally ill persons, and persons on suicide
watch;
provides only a brief mental health intake assessment that
``does not lend itself to early identification and
intervention'';
has not developed a ``mental health classification system'';
lacks a policy related to ``the maintenance, retention, and
centralized storage of medical records'' and does not move
medical files when detainees are transferred; and
assigns immigrants to detention facilities prior to medical
screening, and places them without reference to the proximity
of necessary services or in appropriate facilities.\50\
---------------------------------------------------------------------------
\50\ Ibid.
---------------------------------------------------------------------------
MPI's report on ICE's detention information systems includes a
series of detailed recommendations, which are incorporated by reference
in this testimony and can be found at http://www.migrationpolicy.org/
pubs/detentionreportSept1009.pdf. Many of these recommendations concern
ICE's principal database, known as ENFORCE. The report's overarching
recommendation (repeated here) is that: ``ICE initiate a thorough
inventory and review of its information systems, including ENFORCE, to
ensure that they allow for informed decisions related to the substance
and timing of:
who ICE must detain and who it must consider for release,
with a particular focus on when ``mandatory'' detainees become
eligible for release;
which detainees must be allowed to participate in ICE's . .
. post-removal order, custody-review processes;\51\
---------------------------------------------------------------------------
\51\ ICE administers a custody review process for persons who have
been ordered removed. It formerly administered a parallel process for
``Mariel'' Cubans who had been ordered removed.
---------------------------------------------------------------------------
who should be placed in ICE's alternative-to-detention
programs; and
ICE's adherence to its National detention standards.''\52\
---------------------------------------------------------------------------
\52\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?,
25.
---------------------------------------------------------------------------
iii. the challenge of privatization
The Schriro report recommends that ICE ``create capacity within the
organization to assess and improve detention operations and activities
without the assistance of the private sector.''\53\ MPI found that
private corporations played an immense role in the management of the
immigrant detention system, operating not just their own prisons under
contract with ICE, but also administering the largest county jails with
which ICE contracts.\54\ According to the Schriro report, ICE holds
roughly 50 percent of its detained population in 21 facilities.\55\ As
Exhibit 1 demonstrates, private corporations manage all but one of
ICE's own Service Processing Centers (SPCs) and its largest contract
facilities: the one exception is managed by a county, not ICE. The
report also indicates that the agency relies on private contractors to:
---------------------------------------------------------------------------
\53\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 19.
\54\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?,
15.
\55\ Dr. Dora Schriro, ``Immigration and Detention Overview and
Recommendations,'' 10.
---------------------------------------------------------------------------
conduct most of the ``on-site monitoring'' of its detention
facilities;
annually assess compliance with detention standards at the
facilities ICE uses; and
manage two of its three alternative-to-detention
programs.\56\
---------------------------------------------------------------------------
\56\ Ibid., 14, 20.
---------------------------------------------------------------------------
In addition, ICE field office directors and staff are not required
to ``routinely tour'' detention facilities within their regions.\57\ In
August 2009, ICE announced plans to hire 23 Federal employees to
provide oversight (on-site) at 23 facilities, which hold roughly 40
percent of its detainees.\58\
---------------------------------------------------------------------------
\57\ Ibid., 15.
\58\ U.S. Immigration and Customs Enforcement, ``ICE 2009
Immigration Detention Reforms'' (Fact Sheet, August 6, 2009).
---------------------------------------------------------------------------
A comparative review of the experience of several nations that use
private prisons to detain immigrants argues for close Government
oversight. On the one hand, private prisons have a ``built-in [profit]
motive to provide adequate services.''\59\ If managed properly, private
contractors can also provide a degree of flexibility that benefits the
Government. However, poor accountability can result from: (1) Overly
close ties between private prisons and Government decisionmakers; (2)
lack of competition; (3) lack of oversight by civil society; and (4)
the inordinate influence of private companies that seek to expand
detention systems and weaken their regulation.\60\
---------------------------------------------------------------------------
\59\ Michael Flynn and Cecelia Cannon, ``The Privatization of
Immigration Detention: Towards a Global View (Geneva, Switzerland:
Global Detention Project, September 2009), 16, http://
www.globaldetentionproject.org/fileadmin/docs/
GDP_PrivatizationPaper_Final5.pdf.
\60\ Ibid., 16-17.
---------------------------------------------------------------------------
The large-scale privatization of the ICE detention system
complicates the reform initiative. ICE should adopt the Schriro
report's modest recommendation that it be able to assess and improve
its detention system without outside assistance. ICE's broader goal
should be to expand its oversight, direct control, and monitoring of
its own facilities and programs so that it can successfully implement
its civil detention reforms. While a good preliminary step, the reforms
announced by ICE to date--including the creation of ODPP and hiring 23
ICE employees to oversee certain facilities--will not ensure adequate
oversight of ICE contractors.
iv. conclusion
ICE deserves praise for its decision to bring its detention system
into line with its civil detention authorities, for its candid
assessment of its detention system, for the creation of ODDP and for
its other reforms. As the detention transformation process moves ahead,
ICE should:
Analyze potentially analogous civil detention systems in the
United States, study immigrant ``reception centers'' and
alternative housing models in other nations and work closely
with NGOs in developing suitable civil detention standards.
Ensure that persons in its custody are placed in the least
restrictive settings necessary to ensure their appearances at
legal proceedings and to protect the public.
Detain persons who pose a danger to others.
Exercise discretion in placing persons in removal
proceedings based on their immigration status, humanitarian and
equitable factors, the severity of their offenses, and their
likelihood of prevailing in immigration court.
Release detainees who are not a danger or a flight risk,
particularly persons whose cases raise humanitarian concerns.
Expand and strengthen its alternative-to-detention programs
by: Screening program participants based on a more reliable
assessment of risk; working to expedite the removal proceedings
of persons in alternative-to-detention programs; assisting
program participants to secure legal counsel and otherwise to
obtain accurate and timely information about the removal
process; and treating alternative-to-detention programs as
alternative forms of detention, and thus opening them to
mandatory detainees.
Expand its efforts to identify alternative housing options
for detainees, including the use of ``converted hotels, nursing
homes, and other residential facilities.''
Adopt standards that reflect its civil detention authorities
and the needs of those in its custody.
Systematically review the custody of persons who have been
confined for more than 6 months, particularly those who have
been ordered removed from the country.
Initiate a thorough inventory and review of its information
systems, including ENFORCE, to ensure that they allow for
informed decisions related to the substance and timing of: Who
ICE must detain and who it must consider for release, with a
particular focus on when ``mandatory'' detainees become
eligible for release; which detainees must be allowed to
participate in ICE's post-removal order, custody-review
process; who should be placed in ICE's alternative-to-detention
programs; and ICE's adherence to its National detention
standards.
Expand its oversight, direct control and monitoring of its
own facilities and programs so that it can successfully
implement its civil detention reforms.
EXHIBIT 1.--SELECTED 22 DETENTION FACILITIES THAT HOLD MORE THAN 50
PERCENT OF THE DETAINED POPULATION, FISCAL YEAR 2009
------------------------------------------------------------------------
State Private Contractor
------------------------------------------------------------------------
Service Processing Centers:
Batavia SPC................. Buffalo, NY....... AHTNA Technical
Services Inc
(ATSI)
El Centro SPC............... El Centro, CA..... ATSI
Florence SPC................ Florence, AZ...... ATSI
Krome SPC................... Miami, FL......... ATSI
Port Isabel SPC............. Los Fresnos, TX... ATSI
Varick Street SPC........... New York, NY...... ATSI
El Paso SPC................. El Paso, TX....... Doyon Akal Joint
Venture Detention
Center Services
Aguadilla SPC............... Aguadilla, PR..... MVM, Inc
Contract Detention Facilities:
Aurora ICE Processing Center Aurora, CO........ GEO
Broward Transitional Center. Pompano Beach, FL. GEO
Northwest Detention Center.. Tacoma, WA........ GEO
Pearsall.................... Pearsall, TX...... GEO
Elizabeth Detention Center.. Elizabeth, NJ..... CCA
Houston Contract Detention Houston, TX....... CCA
Facility.
Otay Detention Facility..... San Diego, CA..... CCA
County Jail Facilities with
IGSAs:
Eloy Federal Contract Eloy, AZ.......... CCA
Facility.
Laredo Processing Center.... Laredo, TX........ CCA
Stewart Detention Center.... Lumpkin,GA........ CCA
Otero County Processing Chaparral, NM..... MTC
Center.
Willacy County Detention Raymondville, TX.. MTC
Center.
Jena/LaSalle Detention Jena, LA.......... GEO
Facility.
Mira Loma Detention Center.. Lancaster, CA..... N/A; Los Angeles
County Sheriff's
Department
------------------------------------------------------------------------
Sources: Dora Schriro, Immigration and Detention Overview and
Recommendations (Washington, DC: Department of Homeland Security,
October 6, 2009); website information of detention facilities and
private contractors.
Ms. Sanchez. Thank you, Mr. Kerwin.
Now we will hear testimony from Ms. Nystrom. If you would
please summarize your testimony in 5 minutes or less.
STATEMENT OF BRITTNEY NYSTROM, SENIOR LEGAL ADVISOR, NATIONAL
IMMIGRATION FORUM
Ms. Nystrom. Good morning, Madam Chairwoman and
distinguished Members of the subcommittee. Thank you for the
invitation to speak about our Nation's immigration detention
system.
I currently serve as the National Immigration Forum's
senior legal advisor. Working with leadership from States,
labor, business, and immigrant communities, the forum's mission
is to advocate for the value of immigrants and immigration to
the Nation.
Prior to joining the forum, I was legal director of a
nonprofit organization providing legal services to those in
immigration detention in county jails across Virginia.
Although there are many concerns within immigration
detention, my remarks this morning and my longer written
testimony focus on two questions. Is it necessary for ICE to
spend our tax dollars to detain so many individuals? For those
persons who must be detained for security reasons, are
detention conditions appropriate, efficient, and safe?
To the first question, ICE detains many individuals who
pose no flight risk or danger to the community and thus should
be considered for release or an alternative-to-detention
program.
To the second question, the conditions of confinement for
the hundreds of thousands of detained individuals each year are
inappropriate, inefficient, and unsafe. Despite the civil basis
of immigration detention, ICE houses its detainees in jails
replete with barbed wire, prison uniforms, armed guards, and
shackles.
DHS leadership recently announced much-needed detention
reform. Two steps must be taken to achieve these reforms.
First, ICE must improve how it determines when detention is
necessary and when a detainee merits release or enrollment in
an alternative-to-detention program.
Second, ICE must transition to a detention system that is
neither unsafe nor degrading for detainees. Improved detention
management begins with two critical reforms--an examination of
whom ICE is detaining and why, in tandem with expanded and
improved alternative-to-detention programs.
Today ICE detains more than 33,000 individuals a night,
including elderly persons, torture survivors, parents of U.S.
citizen children, and those with chronic health conditions.
Despite this diversity, ICE has a one-size-fits-all model of
detention.
Each decision to detain should be informed by an assessment
of individual circumstances that is repeated periodically.
Otherwise detention becomes far too automatic and a wasteful
use of Government resources. Without routine detention
assessment, U.S. citizens continue to be swept into immigration
detention.
There are fiscally responsible and reliable alternatives.
ICE currently operates three alternative-to-detention programs
that rely on heavy supervision through GPS, radio, and
telephonic monitoring. The most expensive of these programs
costs $14 per day, while a day of detention at some facilities
exceeds $100.
Alternatives to detention can be improved. Currently
programs operate as alternative forms of custody. Without
standardized assessments, enrollment is haphazard. Further,
there are no alternative-to-detention programs incorporating
community-based services which can help ensure compliance with
immigration proceedings.
Congress has repeatedly ordered ICE to develop National
alternatives to detention and recently appropriated over $69
million to these programs. Going forward, ICE must improve
alternative-to-detention enrollment procedures and expand
programs to include access to community services.
More robust alternative-to-detention programs will lead to
more manageable detention levels and a better use of limited
security resources.
In the second step, ICE must overhaul conditions of
confinement to reflect the civil, non-punitive nature of
immigration detention, shifting its culture from a correctional
mentality to one more appropriate to the often vulnerable
populations in its custody.
Conditions in detention facilities used by ICE continue to
be fundamentally inappropriate. Many facilities in use today
are not physically capable of complying with ICE's own
detention standards.
A DHS inspector general report recently noted the use of
remote facilities and the overuse of arbitrary transfers denies
detainees the basic right to a fair defense and wastes Federal
resources.
As noted, medical care remains a critical concern for
immigration detainees and announced reforms come too late for
many. DHS should prioritize the medically and mentally ill for
release or enrollment in an alternative to detention.
Immediate steps can and should be taken. ICE must follow
these initial steps by revising their standards of detention to
comport with the civil nature of immigration detention. Because
standards are not codified in statute or regulations, ICE must
be diligent in their enforcement.
To conclude, ICE has failed to effectively manage its
massive immigration detention system. The current system is one
in crisis. The sweeping reforms recently announced are
promising but are not fully developed.
ICE should begin screening all detainees for release or
alternative-to-detention programs.
Next, ICE must overhaul standards of confinement so
conditions are appropriately--are appropriate and are
vigorously enforced.
Finally, as long as our immigration laws are out of step
with the modern 21st Century realities, the task of managing
immigration detention will be much more complicated and occur
on a much greater scale than is necessary.
Until we have comprehensive immigration reform, Congress
should ensure that DHS transitions to a detention system that
is right-sized, safe, humane, and efficient. Thank you.
[The statement of Ms. Nystrom follows:]
Prepared Statement of Brittney Nystrom
December 10, 2009
Thank you for the invitation to speak about the immigration
detention system. I have been advocating for improving detention laws,
policies, and practices for a number of years. I currently serve as the
National Immigration Forum's Senior Legal Advisor. Working with
leadership from faith, labor, business, and immigrant communities, the
Forum's mission is to advocate for the value of immigrants and
immigration to the Nation. In my prior capacity, I was Legal Director
for a non-profit organization that provides legal services to
individuals in immigration detention across Virginia.
introduction
The current immigration detention system has been hindered by poor
management and deficiencies in oversight, problems that have been
exacerbated by rapid increases in the number of individuals detained.
Recently, the Department of Homeland Security has acknowledged that its
detention system is disjointed, inappropriately reliant on the criminal
incarceration system, and lacking in direct Federal oversight. Non-
governmental organizations have described immigration detention as
mismanaged, inhumane, and grossly lacking basic standards of due
process to determine whether such extreme restrictions on a person's
liberty are necessary and justified.
Although there are many issues within immigration detention that
should be examined, I will focus my remarks on two concerns. First,
Immigration and Customs Enforcement (``ICE'') does not consistently
know whom it detains or why; many detainees pose no flight risk or
danger to the community and are potentially eligible for release or
enrollment in an alternative form of supervision. Next, the conditions
of confinement for the hundreds of thousands of individuals who are
detained by ICE each year are inappropriate, inefficient, and unsafe.
Detention facilities are a patchwork of Federal facilities, privately
owned facilities, and jails. Oversight is insufficient and ICE's
jailors violate the minimum standards of confinement frequently and
with impunity. Despite the civil basis of immigration detention, ICE
houses its detainees in jails replete with barbed wired, prison
uniforms, armed guards, and shackles.
Against this backdrop, the recent announcements of reforms to the
immigration detention system by the Department of Homeland Security
(``DHS'') and ICE are welcome. Concerned non-governmental organizations
(``NGOs'') appreciate the opportunity to participate in creating and
implementing needed reforms, yet challenges persist.
Two sequential steps must be taken to achieve the reforms
envisioned by the agency. First, ICE must reform protocols regarding
who it is detaining and whether detention is necessary. Individuals
should be automatically and consistently screened for release on
recognizance, bond, parole, participation in alternatives to detention
programs, or risk-appropriate housing assignments. Second, DHS, under
the oversight of Congress, must design, manage, and rigorously monitor
a truly civil detention system that can satisfy its interests while
preserving the dignity and safety of those it detains.
state of affairs
The current disarray of the immigration detention system has been
well-chronicled in numerous media stories, reports, and Congressional
hearings. As the system has rapidly expanded--ICE detains more than six
times the number of people it detained just a decade ago--DHS has
failed to meet its management challenges, with sometimes fatal
consequences. Over 100 individuals have died in immigration detention
since 2003.\1\ A Washington Post investigative series in 2008 found
that substandard medical care may have contributed to at least 30
deaths in immigration custody.\2\
---------------------------------------------------------------------------
\1\ Cam Simpson, More Immigration Detainee Deaths Disclosed, WALL
STREET JOURNAL, Aug. 18, 2009, available at http://online.wsj.com/
article/SB125055691948838827.html.
\2\ Dana Priest and Amy Goldstein, Careless Detention, WASHINGTON
POST, May 11-14, 2008, available at http://www.washingtonpost.com/wp-
srv/nation/specials/immigration/cwc_d1p1.html.
---------------------------------------------------------------------------
Conditions of detention in ICE custody have been a source of
controversy and dismay for years. Consistent complaints describe
insufficient medical care, malfunctioning telephones, frequent
transfers, disruptions in access to legal services, and severely
limited visitation. A groundswell of reports, produced both by the
Government Accountability Office, the DHS Office of Inspector General
and DHS itself, as well as NGOs, demonstrates in great detail that the
immigration detention system is in crisis.
Although ICE's assessments of those in their custody are not well
developed or consistently executed, there are some statistical clues
about the current composition of the detained population.\3\ According
to ICE statistics, 91% of those in immigration detention on January 25,
2009 were men. On that same day, 58% of detainees did not have criminal
convictions. Approximately 40 families were in family immigration
detention centers on October 6, 2009. Roughly 1,400 asylum seekers with
no criminal convictions are detained daily.
---------------------------------------------------------------------------
\3\ These statistics were compiled from the following sources: Dr.
Dora Schriro, Immigration Detention Overview and Recommendations,
Department of Homeland Security, Immigration and Customs Enforcement,
Oct. 6, 2009, available at http://www.ice.gov/doclib/
091005_ice_detention_report-final.pdf and Donald Kerwin and Serena Yi-
Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and
Case Management Responsibilities?, Sept. 2009, Migration Policy
Institute, available at http://www.migrationpolicy.org/pubs/
detentionreportSept1009.pdf.
---------------------------------------------------------------------------
The Secretary of Homeland Security and the Assistant Secretary of
ICE pledged in two recent public announcements to overhaul the current
detention system. The initial announcement on August 6, 2009 was
followed by a second, 2 months later, on October 6. The latter was
coupled with the release of a report by Dr. Dora Schriro, most recently
Director of the ICE Office of Detention Policy and Planning, titled
``Immigration Detention Overview and Recommendations.'' Relevant
components of the announced reforms include: Formal engagement with
local and National stakeholders, development of risk assessment and
custody classification mechanisms, implementation plans for National
alternatives to detention, revision of detention standards to create
consistent and appropriate conditions, and Federal oversight of
detention facilities. ICE describes the time line of these reforms as
stretching over 3 to 5 years.\4\
---------------------------------------------------------------------------
\4\ Immigration and Customs Enforcement Assistant Secretary John
Morton Holds Conference Call to Announce Major Reforms Planned for the
Immigration Detention System, CQ Newsmaker Transcripts, Federal Agency,
Aug. 6, 2009, available at http://homeland.cq.com/hs/
display.do?docid=3189020.
---------------------------------------------------------------------------
collaboration with ngos
While ICE has begun strengthening collaborative relationships with
NGOs to effect detention reforms, significant challenges remain. Local
and National NGOs have organized themselves into two ``advisory
groups'' or ``working groups.'' These groups are broadly arranged into
general detention issues \5\ and detention-related health care issues.
Initial meetings between these groups and ICE have occurred and future
meetings are scheduled. The collaborative potential inherent in these
working groups is rich, but has not been fully reached. ICE's
meaningful engagement with NGO groups early in the planning process is
critical to foster substantive discourse and help shape successful
reforms.
---------------------------------------------------------------------------
\5\ The general detention group is further subdivided into groups
focused on specific issues such as religious services and risk
assessment tools.
---------------------------------------------------------------------------
Perhaps the most basic challenge in forging deep and meaningful NGO
participation in the detention reform process is the delay in
implementation of the announced reforms. NGOs that work with detained
immigrants across the country report that they have yet to experience
any significant shift in detention management on the ground. The single
documented change is the transformation of the troubled T. Don Hutto
facility in Texas from a family detention facility to a women's
detention facility. The lack of tangible changes in detention
operations does not reflect the ambitions of the announcements,
therefore creating a disincentive for NGOs with limited resources and
capacity to engage in a process that has thus far produced minimal
results.
The untimely departure from ICE of key detention reform personnel
has presented an additional challenge. Two high-ranking officials
departed the Office of Detention Policy and Planning shortly after the
office was created. Dr. Dora Schriro conducted scores of meetings with
NGOs, toured dozens of facilities, and drafted an evaluation of the
immigration detention system before her departure from DHS in
September. Her report conveyed many of the concerns and recommendations
shared with her by NGOs. To date, we have not seen evidence that ICE
intends to implement all of the recommendations Dr. Schriro made in her
report. Next, a permanent replacement for Dr. Schriro has not been
named. Additionally, a second member of the Office of Detention Policy
and Planning had just begun to delve into detainee health care issues
when she departed only a few months after her arrival.\6\
---------------------------------------------------------------------------
\6\ Andrew Becker, Second immigration official leaves new Federal
office, Center for Investigative Reporting, Oct. 23, 2009, available at
http://www.centerforinvestigativereporting.org/blogpost/
20091023secondimmigrationofficialleavesnewfederaloffice.
---------------------------------------------------------------------------
The lack of formal collaboration between ICE field offices and
local NGOs presents an additional challenge. Under the current working
group structure, the ability of organizations with first-hand
experience and technical expertise located outside of the District
Columbia to fully participate in the reform process is limited.
assessment of the detained population
ICE should base its reforms on the basic premise that detention is
not the only method to achieve security and compliance objectives.
Currently, ICE detains more than 33,000 individuals each night.\7\ This
number includes men, women, and children. It includes detainees who are
elderly, who have chronic health conditions, and who are pregnant or
nursing. It includes parents of U.S. citizen children. It includes
individuals who crossed the desert a month ago and individuals who have
lived lawfully in the United States for decades. It includes a small
number of individuals who committed crimes and completed their
sentences, and a large majority of individuals who have not committed
any crime. Despite this diversity, ICE defaults to a one-size-fits-all
model of detention. DHS currently does not have a risk assessment tool
to determine who should be detained and who merits release. Each
decision by ICE to detain an individual should be an informed and
careful determination taking into consideration: (1) Prohibitions from
arbitrary detention found both in U.S. law and international law, as
well as (2) prudent use of Government resources. Those who pose no
threat to public safety or risk of flight should not be detained.
---------------------------------------------------------------------------
\7\ Schriro report at 6; Immigrations and Custom Enforcement
Policies and Procedures Related to Detainee Transfers, DHS Office of
Inspector General, OIG-10-13, Nov. 2009, available at http://
www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-13_Nov09.pdf.
---------------------------------------------------------------------------
As a first step toward improved management and positive reform, ICE
must examine whom they are detaining and why. A front-end risk
assessment, repeated at periodic intervals, would aid the agency in
determining when detention is necessary, and would help eliminate
arbitrary detention. In the absence of a risk assessment or
classification instrument, detention becomes far too automatic and
those detained are left shouldering the burden of showing why they
merit release. The immediate need for initial and on-going detainee
assessment tools is urgent. As one example, ICE admittedly lacks both
sufficient medical and housing classification systems. Further,
detainees and their advocates commonly report delays in the issuance of
charging documents after being taken into custody by ICE, a practice
that results in individuals being detained with no notice of the
alleged violations they face.\8\
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\8\ Locked Up Far Away: The Transfer of Immigrants to Remote
Detention Centers in the United States, Human Rights Watch, Dec. 2009,
at 16-17, available at http://www.hrw.org/en/reports/2009/12/02/locked-
far-away-0.
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Additionally, internal ICE processes for reassessing the
circumstances of those in its custody must be improved. ICE's
compliance with legal limits on indefinite detention are so inefficient
that detainees often must resort to filing habeas corpus petitions in
Federal district court to effectuate their release. Further, the DHS
Inspector General found in two 2009 reports that ICE inaccurately
recorded and tracked the mere location of detainees.\9\
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\9\ Department of Homeland Security, Office of Inspector General,
Immigration and Customs Enforcement: Detention Bedspace Management,
OIG-09-52, April 2009, available at http://www.dhs.gov/xoig/assets/
mgmtrpts/OIG_09-52_Apr09.pdf; Department of Homeland Security, Office
of Inspector General, Immigration and Customs Enforcement's Tracking
and Transfers of Detainees, OIG-09-41, March 2009, available at http://
www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-41_Mar09.pdf.
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One alarming consequence of ICE's failure to adequately assess its
detained population is the on-going, and unlawful, detention of U.S.
citizens as recounted in the media, NGO reports, and in Congressional
testimony last year.\10\ The Florence Immigrant and Refugee Rights
Project in Arizona in 2008 alone witnessed more than 40 cases of
persons in immigration detention each month with potentially valid
claims to U.S. citizenship.\11\ The Northwest Immigrant Rights Project
in Seattle has documented 21 cases in the past 3 years of U.S. citizens
who were detained by ICE.\12\ ICE has no authority to deprive liberty
to a U.S. citizen, but without a thoughtful, front-end assessment of
all individuals taken into custody, this will continue.
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\10\ Thirty-eight percent of immigration lawyers studied in
Minnesota reported that within the past 2 years they had represented at
least one U.S. citizen who was in immigration detention. Jacob Chin,
Katherine Fennely, Kathleen Moccio, Charles Miles, Jose D. Pacas,
Attorneys' Perspectives on the Rights of Detained Immigrants in
Minnesota, Nov. 2009, available at http://lawprofessors.typepad.com/
files/final-cura-article-11-10-09.pdf. See also Kristin Collins, N.C.
Native Wrongly Deported to Mexico, CHARLOTTE OBSERVER, Aug. 30, 2009,
available at http://www.charlotteobserver.com/local/story/917007.html;
Robert Zullo, Despite Citizenship Claims, Woman Shipped to Honduras,
THE THIBODAUX DAILY COMET, June 14, 2009, available at http://
www.dailycomet.com/article/20090614/ARTICLES/906141011?Title=Despite-
citizenship-claims-woman-shipped-to-Honduras; Daniel Hernandez, Pedro
Guzman's Return, LA WEEKLY, Aug. 9, 2007, available at http://
www.laweekly.com/2007-08-09/news/pedro-guzman-s-return/.
\11\ Written testimony of Kara Hartzler, U.S. House of
Representatives, Committee on the Judiciary, Subcommittee on
Immigration, Feb. 13, 2008, available at http://judiciary.house.gov/
hearings/pdf/Hartzler080213.pdf.
\12\ Zullo, Despite Citizenship Claims, Woman Shipped to Honduras.
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A second illustrative example of the need for improved assessments
is the many special populations who linger in detention. One such
population is arriving asylum seekers, over whom ICE wields sole
authority to grant release from detention in the form of parole. Those
asylum seekers who are granted parole are released into the care of a
family member, friend, or community organization while their
immigration hearings are pending. Immigration judges have no review
authority of ICE's discretionary parole determinations. Dr. Schriro's
report asserted that internal guidance on parole decisions is under
review. As the agency undertakes its review process, it should ensure
that all individuals are afforded an individualized assessment as to
whether detention is necessary before they are deprived of their
liberty.
Further evidence of the inappropriate use of detention is a spate
of high-profile cases where the severely ill, disabled, or pregnant
individuals are kept in custody. Perhaps most alarming are allegations
that detainees have died in immigration custody due to preventable
medical causes; these allegations have prompted litigation and public
outcry.
DHS has acknowledged that developing an effective risk assessment
procedure is a needed reform and has announced a pursuit of detention
strategies based on ``assessed risk.'' One of four key recommendations
in Dr. Schriro's report was that ICE develop a ``new set of standards,
assessments, and classification tools'' in coordination with
stakeholders. Her report also finds, ``The ideal system should create
the capacity to detain and to supervise aliens consistent with assessed
risk.'' However, the requisite tools to determine risk among the
detained population are still under development. The NGO community
should be tapped as early in the process as is feasible to actively
assist in the development process.
The fundamental importance of a detention system keyed to assessed
risk of individual detainees must not be overlooked. Assessment of risk
is a crucial component of a well-managed detention system as this
determination informs decisions regarding release, bond determinations,
parole decisions, participation in alternatives to detention, or for
those who are found to require continued detention, appropriate housing
assignments, and medical care needs. ICE must conduct an automatic and
consistent assessment at the outset of detention, and revisit this
assessment periodically, of the current or on-going need to deprive any
particular individual of his or her freedom.
alternatives to detention (atds)
Expanding on the recommendation above, ICE must increase and
improve its utilization of Alternatives to Detention (``ATD'')
programs. These offer economical and reliable means of ensuring
compliance with immigration proceedings. One enormously beneficial
application of the risk assessment tool already discussed is ICE's
gained ability to properly reach release or ATD enrollment decisions.
Detention is not mandatory for everyone in immigration proceedings
and ICE should pursue a continuum of discretionary options in making
custody determinations, dependent on an individual detainee's
circumstances. While current options range from continued detention as
the highest form of custody, to electronic monitoring programs similar
to ``house arrest,'' to setting bond, to release on one's own
recognizance, ICE lacks a systemic and effective method for placing
individuals into appropriate programs. Where flight risk poses the only
concern, ICE should immediately contemplate whether that risk could be
effectively mitigated by setting a bond, releasing to family, or
supervision.
ICE currently operates three ATD programs: Intensive Supervision
Appearance Program (ISAP II), Enhanced Supervision Reporting (ESR), and
Electronic Monitoring (EM). In each program, participants are heavily
supervised using a combination of global positioning systems, radio
frequency, and telephonic monitoring. Beginning in 2008, Congress has
repeatedly ordered ICE to provide an implementation plan for a National
ATD system.\13\ More recently, Congress appropriated over $69 million
for ATD programs.\14\
---------------------------------------------------------------------------
\13\ Schriro report at 20; H. Rpt. 111-298, available at http://
thomas.loc.gov/cgi-bin/cpquery/
?&dbname=cp111&sid=cp111650mg&refer=&r_n=hr298.111&item=&sel=TOC_224515&
; Public Law 111-83, available at http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=111_cong_public_laws&docid=f:publ083.111.
\14\ H. Rpt. 111-298 and Public Law 111-83.
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Support from Congress for ATD programs represents an opportunity
for ICE. Simple expansion of current programs is not sufficient.
Successful ATDs would contemplate and address the assessed risk and
needs of each individual. Yet, there are no current ATDs that utilize
community-based organizations and services. There is no review process
for decisions rejecting a detainee for participation in an ATD. Nor do
existing programs include a reassessment of risk as an individual's
case proceeds. To maximize success, ICE must expand the available ATD
programs to include access to community organizations. Assistance upon
release, such as legal and housing services, can help ensure compliance
with immigration proceedings.\15\ For example, community assistance can
help released individuals understand how to meet responsibilities
regarding their cases.
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\15\ The Vera Institute of Justice conducted a pilot alternative
program from 1997-2000 that reported a 93% appearance rate. LIRS
coordinated another alternative model that achieved a 96% appearance
rate. Both programs included community support. U.S. Detention of
Asylum Seekers: Seeking Protection, Finding Prison, Human Rights First,
April 2009, at 64, available at http://www.humanrightsfirst.org/pdf/
090429-RP-hrf-asylum-detention-report.pdf.
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ICE should utilize rigorous criteria in determining whether to
detain, release, or enroll an individual in an ATD program. None of the
Requests for Proposals issued by ICE for the current programs
articulate enrollment criteria. ICE should prioritize the release of
vulnerable detainees, such as individuals with on-going medical or
mental health needs. Contrary to current practice, asylum seekers
should always be assessed for potential release through an ATD.\16\
---------------------------------------------------------------------------
\16\ Human Rights First report at 63.
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In revisiting program design, ICE also has the chance to address
shortcomings in how ATDs as they now exist are implemented. As
currently operated, ATDs rely on intense supervision and restrictions
on movement and liberty; they serve as alternative forms of custody
rather than a true alternative to detention. Critical to the success of
any ATD, ICE must develop standards for selecting individuals into an
ATD with the appropriate level of supervision and for determining
compliance with the program. Conditions or restrictions on release must
be reasonable based on an individualized assessment. These standards
should be directly implemented and enforced by ICE to ensure that the
programs achieve desired outcomes and are uniformly operated.
Importantly, ATDs should be contemplated only after it has been
determined that an individual is not eligible for another form of
release. Explicit and standard criteria would ensure that individuals
receive the appropriate level of supervision. At the very minimum,
ATDs, as conceptualized, can be an effective, fiscally responsible, and
more humane method for monitoring individuals who may have legitimate
immigration claims and for whom detention is unreasonably burdensome,
such as asylum seekers, families, and the infirm. ICE has a great
opportunity to implement them as such by incorporating these
recommendations. More robust and effective ATD programs will also lead
to more manageable detention levels and a better use of limited
security resources.
expected growth in detention demand
DHS initiatives collaborating with local law enforcement agencies
increasingly contribute to the vast population of immigration
detainees, most of whom do not have criminal convictions and should be
considered for alternative programs.\17\ The need to assess the
incoming population and utilize alternatives to detention when
appropriate is becoming urgent. DHS detention reform initiatives are at
risk of being outpaced by Federal and local programs that seek to
identify alleged immigration law violators through the criminal justice
system. The impending National activation of the Secure Communities
initiative and other similar operations are indisputably one factor
driving the need for ICE to assess its current population, explore
alternatives to detention when appropriate, and identify capacity to
appropriately house the expected influx of detainees.
---------------------------------------------------------------------------
\17\ According to ICE statistics, the majority of individuals
booked into immigration detention through the 287(g) program or the
Criminal Alien Program, have no criminal convictions. Schriro report at
13.
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meaningful and appropriate standards for conditions of detention
Conditions of immigration detention should reflect its civil, non-
punitive basis and be tailored to the agency's assessments regarding
who is being detained, why they are being detained, and whether those
in detention have special needs. ICE must also shift its culture from
one that is dominated by a law enforcement or correctional mentality to
one that appropriately addresses the diverse and often vulnerable
populations in their custody.
The sheer number and variety of facilities used by DHS pose a
serious challenge to successful, uniform management. DHS houses
detainees in both short-term facilities designed for temporary use,
such as holding individuals apprehended along the border or deportation
staging centers, and in facilities that provide prolonged detention to
individuals as their cases as considered. The current constellation of
long-term detention facilities consists of seven Service Processing
Centers owned by ICE and operated by private industry, seven Contract
Detention Facilities owned and operated by private industry, and a
behemoth patchwork of approximately 300 facilities contracted through
Inter-Governmental Service Agreements (``IGSAs'').\18\ A handful of
these IGSA facilities are dedicated to housing ICE detainees. The
remainder contract bedspace to ICE while also holding individuals for
the criminal justice system.
---------------------------------------------------------------------------
\18\ Schriro report at 10 (counting approximately 240 IGSA
facilities); OIG report, Detention Bedspace Management, at 2 (counting
more than 350 IGSA facilities).
---------------------------------------------------------------------------
Approximately 68 percent of the ICE population, the bulk of current
detainees, is housed in IGSA facilities (typically, a county jail).\19\
While ICE evaluates these facilities annually to ascertain compliance
with the detention standards, many are not physically capable of
complying. For example, some IGSA facilities do not have outdoor
recreation areas or lack legal visitation areas with even minimal
privacy protections.\20\ Further, in many facilities, ICE detainees are
housed alongside individuals in the general criminal population.\21\
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\19\ MPI report at Figure 4.
\20\ Minnesota report; Jailed Without Justice: Immigration
Detention in the USA, Amnesty International, March 2009, at 41-42,
available at http://www.amnestyusa.org/uploads/
JailedWithoutJustice.pdf.
\21\ Amnesty report at 37.
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Current detention practices at many of facilities severely limit
access to families and attorneys. Visits in some detention facilities
are restricted to video conferencing.\22\ The flat prohibition on
contact visits among family members at one immigration detention
facility in Los Angeles was chastised as ``unnecessary and cruel'' by
the Police Assessment Resource Center in October 2009.\23\ Telephone
access in immigration detention continues to be plagued by broken
equipment, confusing and complicated instructions, steep service rates,
and limited hours of operation.\24\ As an example of systemic obstacles
to legal services for detainees, it takes attorneys in Minnesota an
average of 6 days to make initial contact with their clients in
immigration detention.\25\ The use of remote facilities and the overuse
of transfers also hinders detainees' access to legal services and
family and impedes their ability to challenge their detention and
deportation. The harsh and disruptive consequences of frequent and
haphazard transfers were documented in reports released just last week
by NGOs and the DHS Inspector General.\26\ The Inspector General found
significant noncompliance with transfer standards in a March 2009
report,\27\ and more recently found that transfer determinations ``are
not conducted according to a consistent process'' and lead to ``errors,
delays, and confusion.''\28\ Not only are haphazard transfers
inefficient, they impede access to legal services and families, which
further upsets the system. When detainees are transferred far away,
continuances are required for legal proceedings that have been
disrupted and critical documents or evidence may be left behind.
---------------------------------------------------------------------------
\22\ Minnesota report.
\23\ Police Assessment Resource Center, The Los Angeles County
Sheriff's Department 28th Semiannual Report, Oct. 2009, at 41,
available at http://www.parc.info/client_files/LASD/
28th%20Semiannual%20Report.pdf.
\24\ Minnesota report; Amnesty report at 35-36.
\25\ Minnesota report.
\26\ Human Rights Watch report; Huge Increase in Transfers of ICE
Detainees, Transactional Records Access Clearinghouse (TRAC), Dec.
2009, available at http://trac.syr.edu/immigration/reports/220/.
\27\ Department of Homeland Security, Office of Inspector General,
Immigration and Customs Enforcement's Tracking and Transfers of
Detainees, OIG-09-41, March 2009, available at http://www.dhs.gov/xoig/
assets/mgmtrpts/OIG_09-41_Mar09.pdf.
\28\ OIG Nov. 2009 report at forward.
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Medical care also remains a critical concern in immigration
detention. Recent deaths in immigration detention facilities in
Virginia and Rhode Island sparked concern, lawsuits, and
investigations.\29\ Following each of these deaths, ICE pulled the
remaining detainees from the facilities under scrutiny. In just the few
weeks since the latest detention reforms were announced, two additional
detainees have died in ICE custody, putting the spotlight rightly on
medical care for detainees.\30\ Detainees and their attorneys continue
to struggle to request and receive attention for emergent and chronic
conditions, ensure continuity of care despite transfers, access medical
records, and stabilize mental health conditions. Better access to
health care, not to mention an end to any preventable detainee deaths,
is essential. DHS' plans to create a classification system to place
those with health needs in appropriate detention facilities are a
welcome step. However, the Government must ensure that any medical
classification system explicitly contemplates release or enrollment in
an ATD for those inflicted with medical or mental conditions. Merely
building facilities better suited to care for the infirm without
considering more humane, secure alternatives would be shortsighted.
---------------------------------------------------------------------------
\29\ Eric Tucker, Chinese Detainee's Widow Wants Government Kept in
Lawsuit, THE BOSTON GLOBE, Nov. 12, 2009, available at http://
www.boston.com/news/local/rhode_island/articles/2009/11/12/
chinese_detainees_widow_wants_government_kept_in_lawsuit/; Nick Miroff,
ICE Facility Detainee's Death Stirs Questions, THE WASHINGTON POST,
Jan. 30, 2009, available at http://www.washingtonpost.com/wp-dyn/
content/story/2009/01/31/ST2009013101877.html; Nina Bernstein, U.S.
Agency Issues Scathing Report on Death of Immigrant in its Custody, THE
NEW YORK TIMES, Jan. 16, 2009, available at http://www.nytimes.com/
2009/01/16/world/americas/16iht-detain.1.19422767.html.
\30\ See ICE Press Releases at http://www.ice.gov/pi/nr/0910/
091020boston.htm and http://www.ice.gov/pi/nr/0911/
091123philadelphia2.htm.
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Secretary Napolitano recently set a 1-year benchmark for revising
immigration detention standards at long-term facilities. Existing
standards are fundamentally inappropriate for the civil, non-punitive
immigration framework envisioned by the agency today. The Performance-
Based National Detention Standards, revised by ICE in 2008 and not yet
fully implemented, are based on a correctional model, were commented on
by NGOs who sought to improve the language, yet remain a set of
standards derived from and intended for a jail-based detention model.
Given the Secretary's goal for revising detention standards, full
implementation of the 2008 standards is uncertain.
Revising existing detention standards is a significant opportunity
for ICE. In the meantime, immediate steps towards improving conditions
and breaking from the mold of punitive detention can and should be
taken. Extension of family visitation hours and days, permission of
contact visits, and expansion of freedom of movement inside facilities
and within recreation areas should be implemented immediately. ICE must
follow these initial first steps with the development and
implementation of standards that comport with the civil nature of
immigration detention.
oversight
The non-jail-like detention centers proposed by DHS have the
potential to be more efficient, humane, and civil than those currently
in use. However, any actual improvement in conditions will depend on
the enforcement of adequate standards. These standards must be
mandatory at all facilities with sufficient oversight to produce
consistent and humane treatment of detainees. Violations must trigger
appropriate and enforceable sanctions. Importantly, progress toward
improved conditions should not eclipse the underlying need for better
assessments and subsequent consideration for release, parole, bond, and
ATDs. In the meantime, Congress should continue to monitor and ensure
ICE's progress towards establishing and implementing consistent, safe,
and appropriate immigration detention conditions.
Government monitoring of compliance with detention standards is
critically important as standards are not codified in statute or
regulations. Lack of meaningful oversight has long been a major
weakness of the immigration detention system. Voluminous reports by
NGOs, the Government Accountability Office and the DHS Inspector
General have documented deficiencies in compliance with detention
standards. A shared conclusion of these reports, as well as many other
accounts from detainees, is that ICE fails to adequately monitor
conditions in detention facilities. Development, implementation, and
enforcement of the standards can deliver consistent conditions of
confinement and essential protections for detainees.
DHS has publicly committed to improving oversight of detention
facilities through on-site monitoring and routine and random
inspections by the newly created ICE Office of Detention Oversight.
Another announced improvement to oversight is review of medical request
denials by a medical expert. Further, the number of on-site, Federal
employees contemplated at the largest ICE detention facilities was
expanded from 23 as announced in August to 50 as announced in October.
These reforms will be a good start towards improving compliance with
detention standards. However, monitoring must take place at every
facility used by ICE to house detainees. The power of in-person
monitoring can be substantial. Detainees at one facility in Texas were
visibly losing weight because of insufficient food. After Dr. Schriro
visited and heard complaints of hunger from detainees, advocates report
that meal portions improved.
Another necessary component of robust oversight is a functioning
grievance process. As part of its reforms, ICE has stated that the
Office of Detention Oversight will investigate grievances and alleged
misconduct. The complaint processes within the immigration detention
system have been historically slow and lacking in their ability to
remedy individual grievances. Many detainees are not aware of the
existing process that directs complaints to the DHS Office for Civil
Rights and Civil Liberties and the DHS Office of Inspector General,
don't trust it, or feel that the small chance that a complaint will
result in an improved system or a personal remedy is not worth the risk
of retaliation.
accountability
Announcements to ramp up aggressive monitoring and enforcement of
terms of contracts with detention facilities to improve conditions of
confinement are encouraging. The stated intention to terminate
contracts where poor performance cannot be remedied is especially
heartening. It is also notable that this monitoring and enforcement
activity, as announced, is to be conducted by ICE and not outsourced to
private industry, as has been the case with monitoring efforts in the
past. ICE must cease the practice of renewing contracts with and
housing detainees at facilities with noted deficiencies. In the past,
there have been no apparent consequences for failures in facility
management and therefore no incentive to improve. Oversight without
consequences is meaningless.
conclusion
Over the years, ICE has failed to effectively manage and oversee
its massive immigration detention system, even as the number of
individuals it detains has grown exponentially. The sweeping reforms
that were recently announced are promising but not fully developed, yet
alone implemented. Necessary and fundamental reforms must enable ICE to
consistently and automatically assess each of the individuals it
detains and consider release or enrollment in an alternative form of
supervision. This assessment must inform housing and medical
considerations for any detainees that are determined to require on-
going detention. Next, ICE must overhaul standards of confinement
within immigration detention so that conditions become appropriate for
the civil nature of immigration detention. These revised standards must
be vigorously enforced.
Comprehensive immigration reform that includes a path to
legalization would significantly reduce the number of individuals
present in the United States in violation of the immigration laws, and
consequently reduce the need for a system to ensure compliance from
individuals awaiting adjudication of their immigration claims or
awaiting deportation. In the mean time, Congress should ensure that DHS
transitions to a detention system that is right-sized, safe, humane,
and efficient.
Ms. Sanchez. Thank you for your testimony.
I now recognize Mr. Krikorian for 5 minutes or less to
summarize your testimony.
STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR
IMMIGRATION STUDIES
Mr. Krikorian. Thank you, Madam Chairwoman.
Barbara Jordan, the chairman of the U.S. Commission on
Immigration Reform, told Congress in 1995, ``Credibility in
immigration policy can be summed up in one sentence: those who
should get in get in, those who should be kept out are kept
out, and those who should not be here will be required to
leave.''
Our progress in the third of Ms. Jordan's requirements,
removing those who should not be here, still leaves much to be
desired.
It is not just that we have 11 million illegal aliens
living here, even among those aliens who have gone through the
whole immigration court process and been issued final orders of
removal, more than 500,000 of them have shown their contempt
for American immigration law by absconding, something they
could not have done had they been detained.
DOJ's inspector general found in 2003 that 87 percent of
apprehended aliens who were not detained ran off, including 94
percent of those from countries that sponsor terrorism and 97
percent of non-detained aliens who were denied asylum.
A 2006 report by the DHS IG said in its understated way,
``Currently DRO is unable to ensure the departure from the U.S.
of all removable aliens.''
The disregard for immigration law is so pervasive that the
notification that a non-detained alien receives about his final
order of removal is colloquially known as a ``run letter,''
because when he gets the letter he runs. He can only do this
because he is not being detained.
In short, a majority of the removable aliens who promise to
appear for their court dates are simply lying to immigration
authorities. This is the reason immigration detention must not
only continue but must be expanded significantly.
The only way to ensure that illegal aliens actually appear
before an immigration court is to physically compel them to do
so through detention. Immigration law is literally meaningless
without widespread use of detention to ensure that immigration
violators actually leave.
While it can be worth experimenting with various
alternatives to detention, in the real world their likelihood
of success is limited.
Pilot programs to assess the viability of such alternatives
either include people who would not have been detained anyway--
cream-skimming or cherry-picking, if you will--or fudged the
statistics to make the results appear more favorable, as the
Houston Chronicle recently revealed.
Furthermore, alternatives to detention are not even really
plausible subjects for experiment unless the criminal penalties
for failing to appear are employed.
In other words, only when ordinary absconders, no sexual
predators or terrorists but just regular illegal aliens who
didn't come up for their court dates, are routinely prosecuted
and given stiff prison sentences can alternatives to detention
even be plausibly considered, because then there is a sanction
or a stick for not complying.
The pervasive unwillingness of illegal aliens to comply
with immigration law in the absence of detention is not
surprising, after all.
Unlike in the criminal justice setting where failing to
appear often results in additional penalties, a final order of
removal is all that an illegal alien realistically faces
whether he shows up for immigration court or not.
Furthermore, those failing to appear for immigration
proceedings are likely to avoid detection for many years, given
authorities' still frivolous approach to tracking down
immigration absconders.
In short, alternatives to detention usually is just a
synonym for catch and release. Rather than focus on a futile
search for more alternatives to detention, we would be better
advised to increase ICE's bed space.
As you noted, Madam Chairwoman, detention capacity grew to
more than 33,000 as of fiscal year 2009, but in the current
fiscal year there was no request for an increase. It is a flat
number. This reluctance to increase detention capacity is
curious, to say the least.
Secure Communities in 287(g) guarantee that the number of
aliens ICE is going to have to detain is going to increase
significantly. The mismatch that is coming between supply and
demand for detention beds is going to have two results.
First, illegal aliens not involved in other crimes are even
less likely to be detained than now, which means the absconder
population is going to resume its rapid growth.
Second, when all of them are no longer in detention, then
criminal aliens who are being handed over to ICE will end up
having to be released for lack of space. Those people are going
to commit further crimes.
The political blowback that both Congress and the
administration will face when that happens, when aliens--
criminal aliens that ICE knew about and then ordered their
release--that outrage is going to be deserved, I would have to
say.
In conclusion, all Americans support efforts to make
detention as professional and as humane as reasonably possible.
But our focus must be on the vital role of detention as a
necessary tool to maintain the integrity of our immigration
system. Thank you.
[The statement of Mr. Krikorian follows:]
Prepared Statement of Mark Krikorian
December 10, 2009
Barbara Jordan, chairwoman of the U.S. Commission on Immigration
Reform, told Congress in 1995: ``Credibility in immigration policy can
be summed up in one sentence: those who should get in, get in; those
who should be kept out, are kept out; and those who should not be here
will be required to leave.'' Our immigration policy has never lagged in
letting people in. And we have gotten a little better at keeping out
those who should be kept out. But our progress in the third of Ms.
Jordan's requirements--removing those who should not be here--still
leaves much to be desired.
It's not just that we have 11 million illegal aliens living here.
Even among those whom we have formally designated as ``should not be
here''--aliens who've gone through the immigration court process and
been issued final orders of removal--more than half a million have
expressed their contempt for American immigration law by absconding.
This is not a new problem. A 2006 report from the DHS Office of
Inspector General found that:
``Currently, DRO is unable to ensure the departure from the U.S. of all
removable aliens. Of the 774,112 illegal aliens apprehended during the
past three years, 280,987 (36%) were released largely due to a lack of
personnel, bed space, and funding needed to detain illegal aliens while
their immigration status is being adjudicated . . . Further, historical
trends indicate that 62 percent of the aliens released will eventually
be issued final orders of removal by the U.S. Department of Justice
Executive Office of Immigration Review (EOIR) and later fail to
surrender for removal or abscond.'' (``Detention and Removal of Illegal
Aliens,'' OIG-06-33 April 2006)
A few years earlier, in 2003, the Department of Justice's Office of
Inspector General (before the reorganization of immigration functions
in the Department of Homeland Security) found essentially the same
thing:
``Although the INS remains effective at removing detained aliens, it
continues to be largely unsuccessful at removing nondetained aliens,
removing only 13 percent of those we sampled. Moreover, the INS was
deficient at removing important subgroups, removing only 6 percent of
the nondetained aliens from countries that sponsor terrorism, 35
percent of nondetained criminal aliens, and only 3 percent of non-
detained aliens denied asylum.'' (``The Immigration and Naturalization
Service's Removal of Aliens Issued Final Orders,'' Report Number I-
2003-004, February 2003)
The disregard for immigration law is so pervasive that the
notification that a non-detained alien receives about his final order
of removal is colloquially known as a ``run letter''--because when he
gets the letter, he runs. In a similar phenomenon, during the surge of
non-Mexican illegal immigration on the southern border a few years
back, a lack of money for detention forced the Border Patrol to release
the apprehended illegal aliens with a summons requiring them to come
back for an immigration hearing in 30 days--and that summons came to be
known as the ``diploma,'' since it permitted the holder to ``graduate''
into the United States and get lost in the large urban immigrant
communities. Needless to say, very few of these people returned for
their hearings.
And the lack of detention space can have serious consequences. For
instance, Ghazi Ibrahim Abu Maizar was a Palestinian illegal alien who
had been caught three times trying to sneak into Washington State from
Canada. But on his third try, in 1996, Canadian authorities refused to
take him back. Instead of detaining him, the Border Patrol had no
choice but to release him into the United States with a summons to
appear before an immigration court. Because he was not detained, he was
able to proceed with a plot to bomb the New York subways, which was
averted at the last minute only when a roommate informed police.
In short, a majority of removable aliens who promise to appear for
their court dates are simply lying to the immigration authorities. This
is the reason immigration detention must not only continue, but must be
expanded significantly. The only way to ensure that illegal aliens
actually appear before an immigration court is to physically compel
them to do so through detention. While it can be worth experimenting
with various alternatives to detention, in the real world their
likelihood of success is limited. Pilot programs to assess the
viability of alternatives to detention often either include people who
would not have been detained anyway (i.e., cream-skimming or cherry-
picking those most likely to yield the ``right'' result) or fudge the
statistics to make the results appear more favorable, or both. For
instance, the Houston Chronicle had to make a Freedom of Information
Act request to discover that:
``Nearly one in five suspected illegal immigrants who went through an
Immigration and Customs Enforcement intensive monitoring program
absconded while under supervision during the past 5 years, newly
disclosed records show . . .
``On its website, ICE boasts a 99 percent appearance rate in
immigration court for participants in its restrictive Intensive
Supervision Appearance Program (ISAP). Yet records maintained by
private contractors that administer ISAP show they were `unable to
locate' 18 percent of 6,373 illegal immigrants who passed through the
program between 2004 and the end of January. Five percent were re-
arrested by ICE, records show.'' (``Flaws found in options for
immigrant detention,'' Houston Chronicle, October 20, 2009)
Furthermore, alternatives to detention are not even plausible
subjects for experiment unless the criminal penalties for failing to
appear are employed. In other words, only when ordinary absconders--who
aren't sexual predators or terrorists but just regular illegal aliens
who ignored their court dates--are routinely given stiff prison
sentences can alternatives to detention even be plausibly considered.
The pervasive unwillingness of illegal aliens to comply with
immigration law in the absence of detention is not surprising. Unlike
in the criminal justice setting, where failing to appear often results
in additional penalties, a final order of removal is all an illegal
alien realistically faces, whether he shows up to immigration court or
not. Though the law provides for imprisonment of up to 10 years for
aliens who fail to appear at their hearings, the chances that an
immigration absconder not involved in additional crimes will be
prosecuted are vanishingly small. Furthermore, those failing to appear
for immigration proceedings are likely to avoid detection for many
years, perhaps for the rest of their lives, given authorities' still-
frivolous approach to tracking down immigration absconders. For
example, under pressure from local advocacy groups, many police
departments refuse to serve ICE administrative warrants issued to
absconders, thus shielding the scofflaws from facing the consequences
of failing to depart. Thus, alternatives to detention are simply
irrelevant for those likely to be rejected for asylum or cancellation
of removal--i.e. the majority of those in removal proceedings.
In other words, ``alternatives to detention'' is simply a synonym
for ``catch and release.''
Rather than focus on a futile search for alternatives to detention,
we would be better advised to increase ICE's bed space. There was, in
fact, an increase through fiscal year 2009, albeit from a low starting
point. ICE had funding for 18,500 detention beds in fiscal year 2003,
32,000 beds by 2008, and 33,400 beds in fiscal year 2009. But the
growth has stopped, with the fiscal year 2010 DHS budget allowing for
no increase in detention beds. This despite the fact that the actual
physical capacity to detain more illegal aliens exists in most parts of
the country, much of it in unused county jail space. What's more, a
number of States have offered to help ICE by covering the up-front cost
of new jail construction in exchange for an understanding that ICE will
use it.
The reluctance to increase detention capacity is curious, to say
the least, in light of the Secure Communities initiative and the spread
of jail-based 287(g) programs. These efforts ensure that the number of
aliens ICE will have to detain is going to increase significantly. The
mismatch between supply and demand for detention beds will likely have
two results: First, illegal aliens not involved in other crimes will be
even less likely to be detained than now, meaning the number of
absconders will resume its growth. Second, there will be an increase in
the number of criminal aliens whom local jurisdictions have alerted ICE
to, but who have to be released because of a lack of funding for
detention space. The result of both of these developments will not only
be bad policy, but also bad politics--the public's confidence in the
Government's promises to enforce the law will be further eroded and,
when a number of the released criminals inevitably commit new crimes
after having been ordered released by ICE, the administration and
Congress will rightly be subjected to public outrage. An example of how
detention of certain illegal aliens can literally save lives: Davidson
County, TN, has reported that 75 percent of the vehicular homicides
committed by illegal aliens would have been prevented if the illegal
alien had been deported, presumably after detention, on the basis of
prior offenses.
A final point on the supposedly inhumane nature of detention. Most
aliens are detained for a short time, an average of 1 month. With a few
exceptions, the small number who remain in detention for long periods
are there because they continue to challenge their deportation. And
they often do so because they are given false hope by open-borders
advocacy groups intent on using such people as pawns in a political
effort to hamper enforcement of American immigration laws. The humane
thing to do would be to make clear to these illegal aliens that
immigration to the United States is a false dream for them and help
them return home and get on with their lives. Instead, they languish in
detention--a needed detention, given the virtual certainty that they
would ignore a negative decision on their cases--but languish
nonetheless.
All Americans support efforts to make detention as humane as
possible. But it is essential to emphasize that detention is a
necessary tool and consequence for those who have violated our
immigration laws.
Ms. Sanchez. Thank you, Mr. Krikorian, for your testimony.
I thank all of the witnesses for their testimony. I will
remind each Member that each of us will get 5 minutes to
question the witnesses, and I will now recognize myself for
some questions.
I am trying to wrap my arms around this whole issue of
detention. There are a lot of differences, obviously, on this
panel, which is a good thing. I think most of you are working
in a particular area of this whole detention issue, and so I
have a couple of questions.
First of all, what is the average length of stay for
somebody in a detention facility, whether they are moved or
not? What is the average length before we decide yes, you have
a real case, and you have gone before a judge, and you are
moving in a different direction to stay here, or no, you have
nothing, we have got to get you out of the country now?
Does anybody have some idea of what that would be?
Doctor.
Ms. Schriro. Thank you. The average length of stay was 30
days at the time of the preparation of the report. But like all
averages, it is something of a misleading statistic. There are
a large number that are gone within 1 day, a large number gone
within a week, a larger number gone within a month.
There are relatively few that are there longer than 6
months and, for fiscal 2008, fewer than 2,100 who stayed a year
or more. But of course, within that time, then there is, as you
suggest, movement to more than one facility.
Ms. Sanchez. So are you saying to me that it is sort of
like the 80/20 rule, 80 percent are easy to decide within a day
or a week or what have you, but it is that other 20 percent
that take up a lot of the resources and time to deal with?
Ms. Schriro. Well, you could have people there for a short
period of time but by virtue of high need or their high risk
that they present, you know, will incur more costs as well.
But those who agree to removal are typically gone fairly
quickly, and those who are seeking some form of relief will
tend to stay longer.
Ms. Sanchez. Anybody have a different answer than what we
just heard from the doctor?
Mr. Kerwin. I don't have a different answer, but I did want
to say that, you know, the average is 30 days, but there is--25
percent are out within a day or two. But there are a
significant number of long-term detainees.
When we looked at a database of everybody in detention on a
particular night in January 2009, we found that more than 4,000
of the people in detention on that night had been in custody
for more than 6 months as of that date.
Of those, almost 1,000 had been detained for more than 6
months after having received an order of removal. That is a
significant date, because the Supreme Court has held that
detainees must be released within 6 months of a removal order,
unless the Government can show that there is a significant
likelihood of removal in the future.
So there are a high number of people in ICE custody--a low
percentage but a high number--on any given night who are
presumptively eligible for release. That doesn't mean they have
to be released, but under the Supreme Court decision the burden
is on the Government to show that they can be released soon.
Ms. Sanchez. Yes.
Ms. Nystrom. In my experience, the average length of stay
varies tremendously across facilities. As you have noted, there
is a patchwork of facilities that vary in condition standards.
I would submit that the length of stay also varies widely
across facilities. This is one area that is a tremendous
inefficient use of Government resources.
For facilities that are located near the border, the
repatriation rate is much quicker than facilities that are
located, for example, here in Virginia. In my experience,
detainees with a final order of removal in detention often wait
2, sometimes 3, months simply to be returned to their country
of origin.
Ms. Sanchez. Okay.
Mr. Crane. May I add to that, ma'am?
Ms. Sanchez. Yes.
Mr. Crane. On the length of stay, the agency actually
announced last week that the average length of stay for an ICE
detainee is 6 weeks.
I would add to that, as far as our officers in the field,
we try to have an individual removed if we can within 1 to 2
weeks. Usually every week we are shooting for 1 week, as fast
as we can, to move this individual, because we, frankly, don't
have the bed space to keep them.
Now, as far as the length of stay, I think it is important
to say that there is a lot of things making that happen, but
the key thing being--is that that individual, generally
speaking, is trying to pursue their case. They are trying to
stay here.
One of the big frustrations that we have on the DRO side of
the house is that when they show up for court, a lot of times
they are not prepared for court or their attorney, more
specifically, is not prepared for court.
They are asking for continuances, which depending on our
court calendars may be 6 months at a--or, I am sorry, 6 weeks
at a time. So these detention stays really are dependent on the
individual.
The individual is creating--they are trying to fight their
case, so it is not--most of the time it is not something that
we are trying to do. We are trying very hard to get them out of
custody.
Ms. Sanchez. So, Mr. Crane, would you say that this person
who is trying to fight their case--you think they are just
dragging their feet so they can just stay, stay, stay?
Or do you think it is because we are not doing a good job
about making sure they can see their lawyer, we have
transferred them so now they have got to start with a new
lawyer, or maybe phone calls aren't allowed out?
Or do you think it is because the detention facility
doesn't really allow them the opportunity to put together a
good case in a short amount of time, or because they simply are
going to push the judge or the system as long as they can?
Mr. Crane. I don't think anyone wants to stay in jail. I
think every one of these individuals wants to see their case
come to a close as quickly as possible. That is my personal
opinion.
But there are a lot of things going on that--you know, for
example, like I said, the attorneys constantly showing up to
court and the attorney is not prepared. It has nothing to do
with the detainee. They are asking for these continuances. This
is happening all over the country, so----
Ms. Sanchez. Would anybody opine as to why these attorneys
aren't prepared?
Mr. Crane. Because the system allows them not to be
prepared. When they can show up to court and they can ask for a
continuance, and they know they are going to get it, then they
are going to continue to do it, until the judges start, you
know, holding these attorneys accountable.
Ms. Sanchez. Anybody else have a different opinion on that?
Mr. Kerwin. Yes. I mean, I have a strongly different
opinion. The fact is that most people in removal proceedings
don't have counsel, so most of the continuances are to seek
counsel, to try to get some kind of representation.
You know, they are not fighting their removal. They are
pursuing relief from removal. That is what they are doing. They
are pursuing relief for things that they may be entitled to
under U.S. laws.
Ms. Nystrom. I would also like to add that some of the
attorneys seeking continuances are, in fact, ICE's trial
attorneys, and that happens on occasion when, for example,
criminal conviction records are not in the file, or, as you
alluded to, when someone has been transferred to a new facility
and the alien file does no go with the detainee to the new
location.
That results in a significant delay, and that was pointed
out in the inspector general's recently released report.
Ms. Sanchez. So would it be better for us to try to figure
out that particular process? We don't really do it in this
subcommittee.
I think we are very gifted to have Zoe Lofgren on our
subcommittee because she is over on the Judiciary Committee and
she deals a lot with some of these issues. But do you think it
is maybe that the resources aren't in place for someone to be
able to get their day in court faster with a strong lawyer to
make sure that they have some redress in the system?
Anybody want to----
Mr. Crane. What I can tell you specifically is that we have
48 hours to serve this individual with documents, charging
documents, and everything seems to come to a screeching halt
after that. So yes, the problems really lie after that point.
We bring them into custody. We serve them with their
paperwork. And then everything just kind of stops at that
point.
Ms. Sanchez. But if things could go faster in the court
system, then from a standpoint of the detention and the work
that you do, you are saying that the person who is being held
wants it to go faster, you all want it to go faster.
If we can get that process done in a fair resourced way, we
might not need to look for more beds if we can remove those
individuals or say maybe you have a real right to be in this
country, rather than continuing, continuing, continuing because
there are no lawyers available, or there is not a courtroom
available, or a person got transferred so records aren't
following up with these people.
Mr. Crane. I think that we will always be searching for
beds, because we are always going to be out there making more
arrests. But I think that we would serve these individuals much
better if we could clean up some of those issues, yes, ma'am.
Ms. Sanchez. Okay.
I have gone over my time, but I am hoping we might have
some time for some more questions, because I have a lot more of
them.
I will recognize my Ranking Member now, Mr. Souder, for 5
minutes.
Mr. Souder. I would request that we seek from ICE, DHS, on
behalf of the subcommittee, a detailing of how many of the
appeals actually win--in other words, how many are found that
they were, indeed, entitled to enter the United States.
I would guess that it is a small percentage. Do you any of
you know? Then why were you making assertions if you didn't
know? I mean, the fundamental question here is that--the
question is why are these people--and the implication was--is
that somehow ICE was awful for holding these people here.
Then we--which I agree with, the reason most of them are
there are one of two things, they are the only person from,
say, Brazil, and we have to get a special plane to fly them
back or buy a ticket, divert agents to do that, some get held
longer because we can't send them back to the country that they
came in, we have to--American taxpayers pay to detain them, pay
for their lawyers, pay for all the information, pay to ship
them back to Brazil, or wherever--I use Brazil because I have
seen a number of cases relating to Brazil.
In fact, then the assertion was made that the reason that
maybe these trials are taking longer is because of attorneys
weren't there, they didn't have access and so on.
The question is that how many of them win, and that would
seem to me to be the first thing you would want to know,
because if you could show that most of these people who were
held and didn't get proper information, or it took a long time,
in fact were legitimately mistreated, that would be very
compelling.
Mr. Kerwin. May I respond?
Mr. Souder. Yes.
Mr. Kerwin. Yes.
Mr. Souder. That is why I asked earlier.
Mr. Kerwin. Well, we do know. I mean, we don't know--I
mean, I don't know exactly right here, but, you know, tens of
thousands of people get relief from removal every year--asylum,
they are found to be eligible for adjustment of status based--
--
Mr. Souder. That is what I was----
Mr. Kerwin [continuing]. On a family tie. You know, some of
them get, you know, other relief from removal--cancellation
of----
Mr. Souder. Thousands----
Mr. Kerwin. So it is a significant number. We also know
that the people with legal representation get relief at rates
that are, you know, sometimes three or up to six times higher
than those without representation.
Mr. Souder. Well, I would like to see the formal statistic.
I believe that you should be able to access reasonable, you
know, representation. Thousands in the course of millions is
not particularly an impressive number.
Then, if that is the case, we should make sure that they
are there but not try to imply that there is some kind of a
policy to keep people in prison for a long time. We are dealing
with a small group that we ought to analyze.
To the degree they are mistreated, we ought to look and
test that. Now----
Mr. Kerwin. If I might, it is not thousands related to
millions. It is about 330,000 come into removal proceedings
each year. I am not sure exactly how many of those are
detained. That is total removal cases. There is many thousands
of those that do get relief from removal.
It is not correct to say that there is Government-paid
attorneys. There is not. So, you know, what you have is you
have a system where in some facilities there is some legal
orientation presentations provided to people, but that doesn't
necessarily lead to legal representation.
Mr. Souder. The legal organizations that provide the--do
not receive any Federal money.
Mr. Kerwin. They do. They do, but there is no Federal money
for legal representation.
Mr. Souder. There is no Federal--the organizations that are
providing--well, I don't want to get bogged down in this. I
don't believe you are--correctly representing that.
Mr. Kerwin. No, I am. I am absolutely correct on that.
Mr. Souder. Many of these organizations receive Federal
funds and then provide the funding. We provide the law
libraries. Depending on how a person represents themselves--it
is not correct to say that there is no Federal funding involved
in the defenses. It is just not correct. Now----
Mr. Kerwin. There is no Federal funding for legal
representation. That is absolutely 100 percent correct.
Mr. Souder. Indirect. You are saying there is no indirect
Federal funding----
Mr. Kerwin. No legal representation. There is funding for
legal orientation presentations which are, you know, to----
Mr. Souder. Doctor----
Mr. Kerwin [continuing]. Hundreds of people in detention
centers.
Mr. Souder. Dr. Schriro, could you--I just have a technical
question. Why are the ICE personnel being required to wear
uniforms before entering a New York jail? That was a policy
decision that doesn't apply to any other Federal agencies.
Ms. Schriro. That is a policy that I instituted upon
becoming commissioner of New York City, and it was to ensure
that the population knew the parties with whom they were
speaking.
Mr. Souder. You know that ICE agents--I mean, you are
familiar with this--do not have a standard uniform that they
wear all the time. Why wouldn't you have the same of FBI, DEA,
any other Federal agency? What is the point of singling out
ICE?
Ms. Schriro. The point is that in the civil system there is
no equivalent to Miranda, and so when you are spoken to and you
answer a question, it is without warning or an awareness of
what the ramifications are.
So we adopted a practice in New York City, first requiring
ICE to ask of us to speak with the pretrial individual prior to
addressing them, and we in turn, when the individual says,
``Yes, I will speak with ICE, with or without
representation''--that the people that they meet are properly
identified.
Mr. Souder. In civil trials for citizens, are law
enforcement people required to wear uniforms?
Ms. Schriro. They are required to--I am sorry? Ask that
again, please.
Mr. Souder. In other words, one of my problems here is that
we are continuing to have this separation in--as if people who
have entered the United States, A, get exactly the same rights
as citizens and, in fact, they seem to be getting more rights
than citizens.
That while I understand your--and it is not really a
citizen has a different right, and therefore that may be the
answer to my question.
But that one of the whole fundamental problems I have with
this is that there is this implication that somehow people who
have entered the country illegally and even if they were--had
other rights, they still wouldn't have been picked up if they
hadn't been trying to enter without proper documentation
between ports of entry--variations like that.
My frustration is that they are acting like they are not
criminals. They are arrested just like American citizens are
arrested for criminal behavior. It is criminal to break the
law. That is what a crime is.
Now, there are different types of crimes in severity, and
most of these people, I agree, are more mild-mannered. They
are, generally speaking, not resistant. They are very kind.
Individuals--you know, most are.
But how you separate out which one is going to necessarily
be which, what--are we going to have a different standard for
countries of interest, so to speak, people of interest?
They haven't committed a crime. They are, say, from a high-
risk country that their--they may be an individual who we have
on a list. But on what grounds would we hold them as opposed to
somebody from another country if they haven't committed a
crime?
That we are going to set all kinds of double standards
here. That if somebody is in Virginia and captured, quite
frankly, it means they have been in the United States for a
greater period than if they are captured right at the border.
That they have probably utilized services that they haven't
paid for, which is a huge debate. That this whole discussion is
though these people haven't committed criminal acts.
The No. 1 complaint from law enforcement in my district,
which ICE has been trying to address, is why local taxpayers
are having to pay for detention of people for violating Federal
crimes but who have other problems in our local communities. We
can't even get them deported.
That it is a frustration in the United States. If you ask
the majority of the American people, they think the problem is
we aren't deporting fast enough. We need more courts as well as
more detention facilities.
Most people would agree we should accelerate the
deportation process. I don't think most people disagree with
that. If that is where we need more money, let's get them out.
If they have to have fair--you know, some kind of legal
representation they aren't getting, then let's see that that
gets done and get them deported.
But the whole point of this--I believe it is somehow turned
on its head, and I just can't get my handle around what we are
doing.
Ms. Sanchez. Thank you, Mr. Souder.
Maybe at some point Zoe Lofgren, who is much more versed in
this stuff, might give us a implication of what it means when
you enter the United States, and what types of rights you might
have versus citizens. I am certainly not as well versed as she
on that.
But at this moment, I would like to recognize the
gentlewoman from California, Ms. Harman, for her 5 minutes.
Ms. Harman. Thank you, Madam Chairwoman. Thank you for
holding this hearing on a subject that is of enormous concern
to residents of Los Angeles, which holds about 6 percent of the
detainee population Nation-wide, according to the Department of
Homeland Security review of detention policy.
So I appreciate the opportunity to learn more and also to
think about immigration and illegal immigration again as we
struggle with this issue.
I am the daughter of immigrants. My father was an
immigrant. My mother was the daughter of immigrants. I would
assume many of our committee Members are, too.
Immigration makes America strong, as everyone has pointed
out. Immigration done legally makes America strong. Immigration
that is illegal is a challenge for America.
I strongly believe--agree with Mr. Souder and Ms. Sanchez
that we should enforce our immigration laws. But we should do
that enforcement in a way that reflects our values.
As we consider this problem, detention of immigrants who do
not pose a threat in terms of violent behavior has to respect
basic human rights and civil liberties. It is a necessity of
our--of living our values.
I want to ask you about context. Our committee doesn't have
jurisdiction over this, but I was and still am a huge proponent
of comprehensive immigration reform. Several of you mentioned
that as you testified.
I want to know whether you think this problem would be
greatly helped if we could enact a proposal for comprehensive
immigration reform. I am thinking essentially of the proposal
that former President George Bush, supported by a large number
of Members on a bipartisan basis here, was proposing in the
last term of Congress.
How much difference would immigration--comprehensive
immigration reform make to this problem?
Ms. Nystrom. You are absolutely right. It would make a
tremendous difference. The most obvious reason for that would
be if comprehensive immigration reform contains a path to
citizenship for many of the millions of people who are
currently here with no valid immigration status, the numbers
that would need to be in removal proceedings, and therefore
arguably considered for detention, would be dramatically
reduced.
Ms. Harman. Thank you.
Other comments.
Mr. Krikorian. Yes. If I could disagree, Congresswoman,
Michael Chertoff, who was the previous DHS Secretary, estimated
that 15 to 20 percent of the total illegal population would be
barred from legalization under the proposals then being
considered because of various criminal background or other
matters.
The fact is that virtually all illegal aliens have
committed multiple Federal crimes, not just civil violations
but criminal violations. Crossing the border, obviously, is a
Federal crime. Signing an I-9 form is perjury. It is a felony
if it is false information.
Buying false documents is a Federal crime. Using false
documents is a Federal crime. Absconding from a court date is a
Federal crime punishable by up to 10 years in prison.
So the assertion seems to be that if we redefine the
illegal immigrants here as legal, then the detention issue, the
detention problem, will disappear or at least be dramatically
reduced.
The fact is a very large portion of the illegal population,
even under the proposals that President Bush suggested, which
are essentially the same as whatever it is that Congressman
Gutierrez or Senator Schumer will come up with--a very large
portion will not be redefined as legal.
There is always going to be the further issue of on-going,
continuing illegal immigration, not just from border crossers
but from the very large share of the illegal population that is
people who enter legally on visas and then never leave.
So the answer, I think, is that to look at a broad
legalization program as a solution to detention is--I think is
a mistake. It is actually the other way around.
Only a very robust detention--and credible detention system
would be one of the ways to contribute to public--you know, to
create the credibility that the Government will enforce the
law.
Now, honestly, I am against comprehensive immigration
reform. But the way to do it is through more robust detention,
among other things.
Ms. Harman. Well, let me just say that I--as I said
earlier, I am for enforcement of our immigration laws. I do
agree with you that there are crimes connected with forging
documents in--related to one's illegal status.
However, I think most of these folks are coming here
seeking a better quality of life for themselves or their
families. With the economic collapse that we are experiencing,
there has been a huge decrease in illegal immigration. I don't
think that is due to detention. I think that is due to
different economic circumstances.
I continue to hope that we come up with humane
comprehensive immigration reform, and I do think it will make a
difference in terms of the population that we have to detain in
connection with illegal immigration.
I would just ask--my time has expired, Madam Chairwoman.
But if anyone else wanted to comment, I hope you will permit
that.
Yes, Mr. Crane.
Mr. Crane. Yes, ma'am. I would just like to say there is a
lot of numbers floating around out there about who we actually
have in custody at ICE, and the--in November the agency
released the number of 53 percent convicted criminals.
Now, I can tell you, having worked the CAP program for 5
years, the majority of individuals that we are incarcerating
are coming out of county and State jails. They have been
arrested for extremely serious crimes.
You know, the booking sheets are coming into us every
morning. We are picking out the worst ones we can find and we
are going to the jails and we are looking for the worst of the
worst. That is our priority.
We would estimate that potentially 30 to 40 percent of the
individuals that we are saying are non-criminal actually were
arrested in criminal charges. The reason most of the time--and
this is an epidemic problem in the United States right now--
that they are being released to us without convictions is
because the counties don't have the money to prosecute them and
hold them.
So ICE has become a dumping ground for people--their
problems that they have arrested. So I don't really know if
reform is really going to be the answer to that problem.
Secondly, I would say that any time you give someone a
legal right to be here, along with that comes rights--a lawful
permanent resident, you know--they can possess marijuana. They
can get DUIs that--you know, they can do all of these different
things. It takes away from our ability to enforce the law.
I am not saying that that is not a solution, that reform
isn't there, but I just think that we need to consider--I am
sorry.
Ms. Harman. Yes. Thank you. My time has just expired, and I
don't want to abuse my privilege in the committee. I would just
observe that I am not for anyone breaking laws, but I don't
think that one of the deterrents to becoming lawful should be
the fact that if you are lawful you then have some added rights
to commit crimes in this country. I don't think you do.
I yield back the balance of my time. Sorry----
Ms. Sanchez. Thank you, Ms. Harman.
I am really concerned about something that you said, Mr.
Crane, that people aren't being prosecuted for alleged crimes.
But the fact they are not being prosecuted could mean, at least
under our system, that they actually don't have that crime on
their record.
Therefore, you know, it shouldn't--at least the last time I
checked, it shouldn't count against people. So you know, this
might be something that we have to look at from a much more
local level about, you know, how people--how our cities are--
and our counties are actually doing in going after some of
this.
Mr. Souder.
Mr. Souder. If I can, as a supplement, ICE came into my
district after much pressure and held a meeting with
prosecutors, judges, and sheriffs to talk about the
frustrations about how they make decisions on whether they are
going to come and pick up people in our local jails, of which
over half were not legal.
One of the prosecutors made this point, that almost all
cases anymore are plea bargained, and that she was trying to
focus her legal cases on domestic violence, and she will--she
was plea bargaining the other. Plea bargains aren't treated the
same as convictions. ICE was only going to pick up the people
with convictions.
They asked, ``If we get a conviction will you--and spend
our limited amount of court time on the convictions, will you
guarantee you will get them, because that means we are going to
have to plea bargain with the other people in our court
cases,'' and they said no, they don't have enough resources.
So even if they had a conviction, they couldn't, and that--
so we have got to get into the--behind the challenge here.
Ms. Sanchez. I think that is what I was trying to say. We
have to really take a look at what is going on at the local
level also.
I will now recognize, very patiently here, Mr. Cuellar for
his 5 minutes.
Mr. Cuellar. Thank you, Madam Chairwoman.
Thank you for the witnesses for being here. Let me ask you
about another facet. What about the country of origin that have
to issue the travel documents to send those individuals?
There are delays, and I assume some of the--certain
particular countries are--you know, do a better job of delaying
having to return those individuals.
Can any of you all want to talk about those country of
origins and the delays? Anybody in particular--any particular
country that stands out?
Mr. Kerwin. I would be happy to, because we looked at that
recently. It used to be that, you know, two or three countries
were responsible for all--you know, the great majority of
people that didn't get travel documents. It would be Cuba,
Vietnam, Cambodia and the like, places that we didn't have
repatriation agreements with.
Actually, those numbers are way down, and there is not a--
there is not one country that is--you know, has significantly
more cases than any other. It seems to be more of a dispersed
issue at this point.
I mean, that is a big, big issue, and explains, I think, to
a certain extent, you know, the number of long-term detainees
after being ordered removed, because they just can't get travel
documents for them.
Mr. Cuellar. After a particular time, what happens if a
country doesn't want to take an individual back? Is that person
released in the United States?
Mr. Kerwin. That is what the Supreme Court case is about,
that after 6 months they have become presumptively eligible for
release.
But if the Government is still pursuing and it looks, you
know, foreseeable that the person can be removed, then they
would--then they would stay detained under that Supreme Court
case.
Mr. Cuellar. Have we had anybody with a criminal record be
released after those 6 months if a country doesn't take them?
Mr. Kerwin. I am sure, but I am--I don't know, like,
specific cases.
Mr. Cuellar. Mr. Crane, you nodded your head.
Mr. Crane. Yes, sir. I would say that is happening every
day, actually, and I can give you a specific case of an
individual that was convicted of assaulting a police officer in
our area. He came into custody. He assaulted me, received 13
months for assaulting a Federal officer.
He was from Sudan. We were unable to remove him. We had
to--we were forced to release him, at which time he was
arrested for rape after that, at which time our supervisors
told us not to take him into custody again.
Mr. Cuellar. All right.
Mr. Crane. So yes, it happens very frequently.
Mr. Cuellar. Yes, and that is what I understand also, so I
think that is an issue that we probably have to look at.
Let me direct my question to the costs and the
efficiencies. Where are the--most of the detention centers
held? I mean, I would assume that if they are closer to a
border, I assume most of them will be going to Mexico, South
America, Central America.
Wouldn't you assume that most of those locations should be
on the border?
Anybody. Mr. Crane.
Mr. Crane. I am sorry, sir, are you talking about where
they are actually going to be held----
Mr. Cuellar. Yes.
Mr. Crane [continuing]. Or see an immigration judge?
Mr. Cuellar. Right, exactly, or the--detained.
Mr. Crane. You know, sir, that is hard to say, because
especially when you start mixing the fugitive operations teams
in, and we are dealing with individuals that we are going to
release, we have got to have judges in those areas, and we
really need to have--if we have got some kind of facility there
locally, that makes it--it facilitates it for those
individuals.
Mr. Cuellar. Okay.
Mr. Kerwin. Dr. Schriro's report actually speaks to that. I
mean, there is a little bit of a disconnect. Most of them are
in kind of the southern States, in the border States in
particular, and there is a little bit of a mismatch between
detention capacity and demand, but----
Mr. Cuellar. Dr. Schriro.
Ms. Schriro. Just more specifically, we overlaid where
arrests occurred and where capacity was available, and there
were disparities in some parts of the country, and that largely
contributes to the transfers.
So for example, in the northeast, in the mid-Atlantic
States in particular, there is an acute shortage of bed space
proportionate to the level of arrests.
So it is far more likely that if you are apprehended in
those areas that you are going to--the course had been for some
period of time that you would go to kind of Pennsylvania Dutch
Pennsylvania, then down through Mexico, Texas, Louisiana,
sometimes Florida.
Speaking to some of the other testimony given previously,
if you were fortunate to have counsel then, you lose that
relationship. Where you had community ties or other resources,
they are not as likely to be available.
Mr. Cuellar. Okay.
Last question. Secure Communities initiative--is that
something that works?
Mr. Crane.
Mr. Crane. Sir, I will tell you, we weren't real impressed
with it. In my area--I was out of the State of Utah--they were
pulling officers out of our offices to send them down to the
southern border. We were short-staffed already.
We had criminals walking out of jails because we couldn't
work our CAP program. They got down to the southwest border and
managers said, ``We don't have anything for you to do, just--we
weren't prepared for this. We didn't know what to do with you.
Just kind of hang out.''
Quite honestly, when they went down there, I think they
were arresting primarily CIS referrals, and they used all of
those up in about 30 days. After that, we are really not quite
sure what they were doing. They weren't really making arrests.
But they certainly could have been making arrests if they
were back in their respective areas.
Mr. Cuellar. All right. Thank you.
Thank you, Madam Chairwoman.
Ms. Sanchez. Thank you. I thank the gentleman from Texas.
Now we will hear from the gentleman from--Mr. Pascrell, I
believe, is next, from New Jersey----
Mr. Pascrell. Thank you.
Ms. Sanchez [continuing]. For 5 minutes, recognized.
Mr. Pascrell. Thank you, Madam Chairwoman.
First of all, I think that the--as I have said many times,
the Government has the right to know who is in this country at
any given time in order to protect the country.
We have heard from everybody how we need to protect our
borders. But I think we are spinning our wheels, no question in
my mind about that.
When I look at the--if you turn to page 4 in the materials
that--received, the number of ICE detainees per day, you notice
there was a 33 percent increase between 2006 and 2007, and then
a little bit more the next year.
One must conclude from that that our great, courageous
Congress and our great, courageous administrations--that is
when there was discussion about comprehensive health--
comprehensive immigration reform, so this was our response. We
will show everybody that we are tough.
Now, we are talking about 33,000 on any given date. Do you
know what the percentage is of the undocumented folks that are
in this country? What percentage would that be? A very, very,
very small percentage.
I mean, we know the percentages of how many criminals. The
percentage of criminals that we detain of these 33,000--we are
hearing that maybe up to 50 percent of them have committed
multiple criminal acts. Is that what I am hearing from the
panel?
Well, what percentage of criminal acts are perpetrated,
committed, by the 11,960,000 other illegal immigrants that are
in this country? Are they high-risk as far as crime is
concerned? This is not the solution to the problem, the
direction that we are going in, by any stretch of the
imagination.
Removing those who don't belong here--do you know how long
that would take, Mr. Krikorian? How long would that take?
Mr. Krikorian. Well, we have actually modeled that, and it
is not just a question of--because the----
Mr. Pascrell. How long would that take?
Mr. Krikorian. Our estimate is that in 5 years you could
cut the illegal population in half.
Mr. Pascrell. So you----
Mr. Krikorian. Not by arresting everybody individually, but
by a combination----
Mr. Pascrell. But you talked about removing them. You
didn't just talk about arresting them. You talked about
removing them.
Mr. Krikorian. That is a combination----
Mr. Pascrell. Mr. Krikorian, let me ask you the question
again. Maybe I didn't make myself clear. How long would it take
to remove them?
Mr. Krikorian. We wouldn't have to remove them. The
question itself is based on a----
Mr. Pascrell. We wouldn't have to remove them.
Mr. Krikorian. Because the way immigration enforcement
works is a combination of forced removal and voluntary--
essentially voluntary self-deportation, because you squeeze
people out of the country.
Mr. Pascrell. Well, what you are----
Mr. Krikorian. It is a combination of both.
Mr. Pascrell. Excuse me. What you are implying here, Mr.
Krikorian, is that either we are approaching this in a cavalier
sense, or we are simply inept.
Mr. Krikorian. Well, there is probably a lot of that, but
what specific----
Mr. Pascrell. Okay. Or is the Government unwilling to
confront the issue? Is this politically incorrect? What do you
think?
Mr. Krikorian. Is what politically incorrect specifically?
Mr. Pascrell. Part of your documentation you gave a--made a
presentation here. Removing undocumented aliens.
Mr. Krikorian. Well, it is something the public wants, and
it is clearly contentious among both business groups and other
advocacy groups. So yes, it is politically----
Mr. Pascrell. Well, maybe the public----
Mr. Krikorian [continuing]. It is politically incorrect.
Mr. Pascrell. Maybe the public wants us to deal with the
subject so that we get beyond the symptoms and find out what
the problem is so that we can, in some manner, shape, or form,
not only humanely respond to those that are in the caboose but
respond to those that are not committing those crimes and not
being detained.
Do you think that employers who hire undocumented aliens,
those who have broken the law multiple times, Mr. Krikorian--do
you think that employers should be incarcerated and detained as
well?
Mr. Krikorian. Absolutely. They should----
Mr. Pascrell. How would you do that?
Mr. Krikorian. First, by requiring all new hires to be
cleared through the E-Verify system, so that then prosecutors
actually will have a paper trail, which is very difficult now,
to make a case against them.
Mr. Pascrell. Do you know how many employers are in jail
that have hired undocumented aliens?
Mr. Krikorian. I don't know, but it is very small.
Mr. Pascrell. How come you don't know that but you know how
many undocumented aliens are in jail and how many times they
have committed multiple criminal acts?
Mr. Krikorian. Because the hearing is about detention of
illegal----
Mr. Pascrell. Well, look, you are an expert on it. I am
not. You know that you--you know the numbers. You were clicking
off numbers before of how many criminals are out there on the
loose, inside the caboose, inside the--look. I know the game. I
know what you are up to.
Now, most undocumented aliens are not detained. You would
agree with me?
Mr. Krikorian. Of course, yes. Absolutely.
Mr. Pascrell. And most undocumented aliens shouldn't be
detained.
Mr. Krikorian. Probably. Well, it depends. I mean, if they
are in immigration proceedings, yes, they should be, generally
speaking.
Mr. Pascrell. Well, according to you, they all broke the
law since they shouldn't be here in the first place.
Mr. Krikorian. Well, yes, okay.
Mr. Pascrell. Let's put 12 million in jail. Let's detain 12
million. If you don't want to remove them, let's detain them.
How many jails do we have to build?
Mr. Krikorian. Congressman, the question is based on a
false choice. The choice is not between arresting and driving
out all 12 million illegals tomorrow, like something out of----
Mr. Pascrell. You tell me what the choice is.
Mr. Krikorian [continuing]. ``Ten Commandments.''
Mr. Pascrell. Tell me what the choice is.
Mr. Krikorian. The other choice being legalization. Those
are the two--the way it is presented, that it is a sort of
digital, on/off thing. Everybody is arrested and driven out
tomorrow, or everybody gets legalized.
The middle way is what is actually practical, which is you
detain and deport some portion, significantly more than now,
but also make it increasingly difficult to live a normal life
as an illegal alien, both by getting employment, et cetera, so
that self-deportation, which has already actually happened to a
significant extent over the past 2 years, picks up and reduces
the illegal population significantly.
Mr. Pascrell. Well, my time is up, and I thank you for
responding to questions.
May I have a question to Mr. Souder, because he used the--a
statement before, and I want to know what he means by that, the
question of----
Ms. Sanchez. Can a question from Mr. Pascrell----
Mr. Pascrell [continuing]. And he doesn't have to answer--
you don't have to answer the question.
What do you mean by high-risk countries? Would you tell me?
Because I want to write the list down of high-risk countries.
Mr. Souder. We have a list through the State Department--
Saudi Arabia, Pakistan, Yemen.
Mr. Pascrell. But there is a number of them, not--they are
not all in the Middle East. They are not all Muslim countries
either, are they?
Mr. Souder. Most of them.
Mr. Pascrell. Well, is that a good idea or bad idea?
Mr. Souder. That they are----
Mr. Pascrell. In other words, we are profiling countries
now.
Mr. Souder. Yes.
Mr. Pascrell. You think we should do that?
Mr. Souder. We always have. We always have.
Mr. Pascrell. You don't believe that is a stigma on the
people who come here legitimately from those countries?
Mr. Souder. I believe that law enforcement should be based
on real risk.
Mr. Pascrell. I am sorry?
Mr. Souder. I believe law enforcement should be based on
real risk.
Mr. Pascrell. Well, what is risk in your mind?
Mr. Souder [continuing]. Where the terrorists are coming
from.
Mr. Pascrell. Where the terrorists are----
Mr. Souder. Where the people on the watch lists are coming
from, where the highest risk--I mean, they have to have some
sort of a sorting system that--in detaining, and that is why
every border crossing can tell you how many people came from
high-risk countries that are on the State Department list.
That is why Congress always votes for this list.
Mr. Pascrell. Well, I think if you have a reason----
Mr. Souder [continuing]. Whether we give foreign aid to
those countries, whether we provide military weapons to those
countries. That is judgmental.
Mr. Pascrell. Risk----
Mr. Souder. Why would we not give--why would we not give
certain weapons to countries that are--that apply for them? It
is because they are higher risk. That is a judgment.
Mr. Pascrell. Well, maybe we shouldn't give weapons to
anybody.
Mr. Souder. I tend to believe people who are on our side
should get weapon systems.
Mr. Pascrell. Oh, you do.
Mr. Souder. I believe Israel should get assistance, yes.
Ms. Sanchez. I think that might be a debate on the House
floor in International Relations Committee. I might just add
that it is a difficult thing to see happen.
For example, I have a sister-in-law who is French--great
French family. When France was in Algeria, she was born there
to that family. Her passport carries ``born in Algeria.''
She has no real connection to the population there, in a
sense, and yet, you know, she is of a country of particular
interest and gets stopped, and has questions asked, and gets
detained quite a bit, even though there is really not that
connection there, but----
Mr. Pascrell. But she is a suspect before the fact.
Ms. Sanchez. That is what I am saying.
Mr. Pascrell. Right.
Ms. Sanchez. That is what I am saying.
Mr. Pascrell. We shouldn't be doing these kinds of----
Ms. Sanchez. Well, but----
Mr. Pascrell [continuing]. Stupid things.
Ms. Sanchez [continuing]. That is not really an issue of
this committee, unfortunately, Mr. Pascrell.
Mr. Pascrell. Well, it has something to do with who we
detain. I believe it does. Unless we see this gestalt here, we
are never going to get to the--we never get beyond the
symptoms, is the point I am trying to make. I----
Ms. Sanchez. Well, we deal with the symptoms here.
Unfortunately, the policy of that is made in International
Relations and it is made in, most likely, the Judiciary
Committee, as you know. We have not as broad of a place to
attack those types of issues on this committee, although we try
sometimes. Okay.
Very patiently, Mr. Green for his 5 minutes. Thank you to
the gentleman from Texas for being here.
Mr. Green. Thank you, Madam Chairwoman.
Madam Chairwoman, the first time I read Dred Scott, I had
tears to well in my eyes, because when I read the case I
realized that it was the intelligentsia that perpetuated the
circumstance.
It is really not the ignorant, the--those with a lack of
understanding, that can perpetuate inhumanity. The
intelligentsia gets the job done. The others follow.
I marvel at how we live by the notion that we should be our
brother's keeper until we have to keep our brother. You know,
it is easy to be your brother's keeper when you don't have to
keep your brother, when your brother doesn't really need you,
when your brother has all of the good things that life can
offer.
But when your brother is suffering, needs health care, when
your brother is without employment, that is when you really
find out who is a keeper of the brother.
I, like some of my colleagues, find it very difficult to
understand how we can believe that we can deport the millions
who are here, many of whom, by the way, are not from Mexico.
Does everyone agree that we have somewhere between 12 and
20 million here? If you differ, raise your hand, please.
All right, so what is your number?
Mr. Krikorian. We have slightly under 11 million illegal
immigrants, based on our research.
Mr. Green. All right. Let's take 11 million. Eleven million
people, by some standards all of whom committed crimes because
they are here--by the way, I think that criminals ought to be
prosecuted. All criminals ought to be prosecuted. You commit a
crime, you ought to be prosecuted.
Do you have, aside from the one person who has a model--is
there other empirical evidence connoting that what we are doing
is acting as a deterrent, what we are doing currently? If you
have empirical evidence, kindly raise your hand.
I have considered your empirical evidence. You said you had
a model.
Ms. Nystrom. Congressman, I would like to submit that we
cannot enforce our way out of the current situation, that we
need to have comprehensive immigration reform to really get at
the problem, and that there is no feasible model to detain and
deport the 11 to 20 million undocumented immigrants currently
in our country.
Mr. Krikorian. But, Congressman, could I point out that
there is another metric of success----
Mr. Green. Well, let me hear about that at a later time.
Let me continue, if I may, please. I appreciate your
commentary, sir, and I don't mean to be rude, crude, and
unrefined, but I have to get to a point.
My point is at a much more lofty level than we find
ourselves having to negotiate today. I sincerely believe that
at some point on the infinite continuum that we call time, we
are all going to have to account for our time.
I think that at that moment we are going to have to explain
how we treated people who meant us no harm, who were here by an
informal invitation, who were the servants. They fed us. They
took care of us. There is no harm, and we found every--well,
not every, but a good many means by which we could demean them
and dehumanize them.
Our complicity is somehow completely disregarded in the
entire process. When I say ``our,'' I am talking about every
business person that hires someone, those of us who have had
persons come into our homes, those of us who have had persons
to manicure our yards. We are all complicitous.
When you don't have clean hands, and you reach that point
on the infinite continuum, I think the day of reckoning is in
store for all of us. I regret that the intelligentsia finds--
continually finds a means by which we can justify the ill
treatment of people who mean us no harm.
I yield back the balance of my time, and I just hope that
this time has been well spent.
Thank you, Madam Chairwoman.
Ms. Sanchez. Thank you, Mr. Green.
As we wrap up, because we are going to have votes called
any moment also, I am going to have some more questions for the
record that I would really like to get the opinions across the
board from all of you on.
But I sort of am--you know, the numbers--and of course,
Doctor, I am very interested in your report, because it is--
lays out a way forward that the Department of Homeland is
looking at. That is why we will have another hearing in the new
year, to look at what they have to say in particular.
But I want to go back to Mr. Crane.
Mr. Crane, do you believe in the doctrine of presumed
innocent until proven guilty? It is a very American doctrine.
Mr. Crane. Yes, ma'am, I do.
Ms. Sanchez. Because we have just seen, for example, a
young American woman in the Italian system where the system is
really you have to prove yourself out of a situation you are
accused of.
I am a little bit worried about this whole issue of locals
and counties arresting people for alleged crimes and not having
the resources, and so allowing them out, if you will, and
then--and this sort of disconnect that is going on between some
of you on the panel about what we really have in detention
centers.
Because I think Mr. Kerwin said dangerous to others, about
11 percent.
Then you said some are refugees, some are in some sort of
residency, some may be even citizens.
Ms. Nystrom, you said why shackles and--or one of the two
of you--why shackles and--you know, this type of thing.
More open types of holding places, Doctor.
Mr. Crane coming back to this is so dangerous to our--to us
working in that environment, because there is, you know, so
many criminals there--you know, so I go back to this whole
thing--well, I would be--I would like to be presumed innocent
until proven before a court, whether it is jury or some other
choice, that I am--that I am guilty.
So how do we--Mr. Crane, how do you, as somebody who is
working in the system, who from your testimony seemed to say,
``We are fearful of everybody, really, because we think most of
them are criminals,'' versus this whole ``people are presumed
innocent,'' versus what Mr. Kerwin and Ms. Nystrom are saying,
which is there is a lot of innocent people in this system,
maybe the only thing they did was break a law because they
wanted to feed their families--how do you react to that?
Mr. Crane. I think, for our part, we are just--we are in a
hard spot, because we absolutely do see that a person is
proven--you know, is innocent until proven guilty.
But at the same time, we see that the system is broken,
that the system isn't working, that these individuals are not
going in front of a court of law, and they are not really being
cleared of those charges at the same time and, you know, so now
they are in our facilities. So I mean, that is the hard part
for us.
Now, if I I said earlier that we were kind of fearful of
everyone, I didn't really mean to say that. The biggest thing
on the facilities that we were saying is that ICE is proposing
to go to 85 to 90 percent convicted criminals in custody within
the next 12 months.
At the same time, they are going to turn these facilities
into an open-campus environment. Yes, that does concern us very
much.
Ms. Sanchez. Doctor, is that the plan, or is the plan about
open facilities about these people who you think are--have
broken the rules because they were looking to get jobs, versus
this idea of ICE is barreling down on people, we are getting
the really, really bad people, we are ramming them up?
Do you really see those type of people going into a more
open sort of situation? Because that seems to be Mr. Crane's
concern here.
Ms. Schriro. Madam Chairwoman, I can--I could speak to my
report but have left ICE, and so I will defer to them to
explain some of the things that Mr. Crane has referenced.
But in general, as Mr. Kerwin and others have referenced
data from my report, right now the primary contributors, the
sources of referral for individuals into ICE detention, have
been first the CAP program--48 percent in this fiscal year of
2009 through the time of the writing of the report--and then an
additional 12 percent through the 287(g) program. So that was
60 percent.
Yet some number of them did not have criminal convictions
or pleas. I don't think there is much of a distinction between
whether you are pled or proven. Once you are found or admit
guilt and receive a sentence, it is all the same.
So you have got a number of people who are identified
through the criminal justice system by virtue of an arrest but
charges are dropped for a variety of reasons. I think Mr. Crane
offers but one explanation for why charges are dropped and then
individuals are referred to ICE.
Part of that goes back to my concern about all in
enforcement who contact individuals should be able to--should
identify themselves prior to the exchange, thus the requirement
for the uniforms.
As to the management of the population, what I have said
consistently--and it comports with a variety of disciplines,
including the corrections arena from which I come--and that is
that there are valid assessment instruments and that one
applies them correctly.
Then having identified an individual risk, either risk of
absconding if they are placed on community supervision, or risk
in terms of propensity for violence if they are held in a
detention facility, that that, in concert with their assessed
needs, particularly health care but others as well--that those
would inform the placement.
So the physical plant is one of the ways in which you carry
out the plan for the period of detention pending the decision
for either relief or for removal.
So in correctional systems, there are a variety of housing
strategies and supervision strategies that are established, and
in well-run systems they are consistent with that assessed need
and risk.
Ms. Sanchez. Thank you, Doctor.
Mr. Souder. Can I make one brief comment?
Ms. Sanchez. Yes.
Mr. Souder. One brief comment I would like to add is some
of this isn't as contradictory as it seems because of what I
referred to earlier as is ICE is indeed trying to, in my
opinion, cherry-pick, which is distorting and will increasingly
distort the mix that they have.
Mr. Krikorian was referring to a broader pool, and one of
the challenges that Mr. Pascrell was addressing was if we
actually get E-Verify, we start to remove, do penalties on
business men, we are going to get a different mix of the ICE
mix, but then you would need--you know, we are still arguing
whether we detain those, or whatever.
The last point I would--I would make with that is that visa
overstays are becoming a bigger, bigger problem.
People say they are in legally and, in fact, if you have
visa overstayed, as Mr. Krikorian pointed out, you probably
have driver license, bank accounts, all sorts of other illegal
activities with that, too.
This does not mean you are violent, but that you might have
multiple crimes.
Ms. Sanchez. Of course, that is one of the reasons why we
are looking at that new assessment program, and Visa Waiver
Program, et cetera, et cetera, also under the jurisdiction of
this committee.
I am sure we will have more in writing to ask you.
Mr. Souder. Before my friend leaves, this is the only
hearing where I have asked two rounds of questions and been a
witness----
Ms. Sanchez. Well, you know, we aim to please here. We are
trying very hard to get our hands around what is going on.
So I want to thank the witnesses for your valuable
testimony and, of course, the Members for their interaction,
very spirited at times.
The Members of the subcommittee may have additional
questions for the witnesses, and we will ask you to respond in
writing to those questions quickly if you can.
Hearing no further business, this subcommittee is
adjourned.
[Whereupon, at 11:48 a.m., the subcommittee was adjourned.]
A P P E N D I X
----------
Questions From Chairwoman Loretta Sanchez for Dora Schriro
Question 1a. The detention report ICE released this October is the
result of extensive research you conducted on the current state of
immigration detention in this country during your time as director of
the ICE Office of Detention Policy and Planning.
Are there additional challenges, not mentioned in the report, that
also need to be addressed and what are your recommendations for dealing
with those issues?
Answer. Response was not received at the time of publication.
Question 1b. What areas will pose the greatest challenges for
detention reform?
Answer. Response was not received at the time of publication.
Question 2. One of the key detention reforms announced is the move
from a criminal detention model to a civil detention model.
Please expand on the differences between criminal and civil
detention models and why immigration detention facilities should be run
differently than the current penal system?
Answer. Response was not received at the time of publication.
Question 3. There is concern that a civil detention model might be
too ``soft'' and not sufficiently secure or may fail to act as a
deterrent for would-be detainees.
What is your response to these criticisms?
Answer. Response was not received at the time of publication.
Questions From Chairman Bennie G. Thompson for Dora Schriro
Question 1a. The current immigration detention system is a
sprawling network, with contract and intergovernmental service
agreements composing the majority.
Are the contract detention facilities currently capable of meeting
the proposed standards of treatment for non-criminal detainees?
Answer. Response was not received at the time of publication.
Question 1b. What do the announced changes to detention policy mean
for current contractors?
Answer. Response was not received at the time of publication.
Questions From Chairwoman Loretta Sanchez for Christopher L. Crane
Question 1a. Your testimony and published reports mention that
written guidance to field offices is limited.
How does Detention and Removal (DRO) staff stay abreast of changes
in policy and procedures made by ICE headquarters?
Answer. In most cases, DRO staff is not aware of the majority of
agency policies and procedures and/or the associated changes. In fact,
policies and procedures are generally different from office to office,
and often change from day to day. Generally speaking, this begins with
poorly thought-out policies at the ICE Headquarters and Field Office
levels, which lack much-needed input from the field. Poorly planned
policies not only fail quickly in the field once implemented, but also
create new problems that did not previously exist. ICE Headquarters and
Field Office supervisors are then reluctant to admit failure and are
insistent on staying the course with newly implemented policies and
procedures. It is then left to DRO staff and managers in the field to
overcome the obstacles created by the failed policies. In some cases,
problems become so prevalent that policy makers are forced to make
changes. Unfortunately, these changes also lack input from the field,
and typically fail as well. At this point, in a frantic attempt to
resolve problems, a reactionary cycle of day-to-day changes occurs. DRO
Staff in the field is literally directed to perform the same duties
differently on a day-to-day basis, often returning to the same failed
procedures they started with. Throughout this process there is a
complete lack of communications with and/or training for staff on these
new policies and procedural changes. The end result is the very
chaotic, stressful, and often unproductive environment that DRO
employees work in every day--just one of many reasons why employee
surveys conducted by ICE confirm that the morale of DRO employees ranks
as one of the lowest of all Federal agencies.
However, most policies and changes involve no interaction between
DRO staff and DRO managers and supervisors. ICE Headquarters, as well
as ICE Field Office supervisors and ICE Employee Labor Relations staff,
rely almost solely on email and website postings for all communications
with employees. Sadly, both managers and supervisors are fully aware
that DRO staff lack the time while at work to read the large number of
daily emails, lengthy policies, or browse through the ICE website in
search of ICE policies. ICE has a ``check the box'' management style in
which the only concern is to be able to say that ``yes'' the employees
were sent the policy or changes and can now be held accountable for not
following them. ICE managers and supervisors, for the most part, do not
conduct training, allow for questions, or make sure time is available
for DRO staff to read new policies, and overall do not ensure that
policies are read or understood by employees. With all due respect to
ICE managers and supervisors, it is a truly lazy and negligent way to
conduct operations, which results in not only ineffective communication
but also a significant lack of knowledge regarding ICE policies by DRO
employees in the field.
Question 1b. What would you suggest to improve communication of
changes to policy with staff in the field?
Answer. ICE needs to begin by returning to the basics of good
management. ICE needs to ensure that ICE managers and staff in the
field receive proper training on new policies and procedural changes,
have an opportunity to ask questions, and truly understand new policies
and procedural changes. Time must be allotted to properly train and
educate employees. It is an investment in our most important asset,
Human Resources, as well as the agency itself. If conducted properly,
these types of briefings or classes at local offices and facilities
could greatly increase understanding and awareness by DRO staff and
managers in AFGE National Council 118--ICE, Inquiry by the U.S. House
of Representatives, Committee on Homeland Security the field. We need
our managers and supervisors to come out of their offices, communicate
with and listen to employees, and manage from a more informed position.
Of course, briefings and classes held at local offices would create
little if any additional expense to the agency.
The Union also has a very important part to play in communications
between DRO managers and DRO staff regarding policy and procedural
changes. That communication should begin at the policy development
stage and continue through employee education. This would improve not
only education and understanding, but dramatically improve the quality
of policies and morale in the field. Unfortunately, DRO managers and
Employee Labor Relations staff are strongly anti-union, anti-employee
rights, and harass anyone involved in the Union, sending a chilling
effect throughout the workforce. A letter outlining these problems was
sent to DHS Secretary Janet Napolitano and given to ICE Assistant
Secretary John Morton almost 1 year ago. Those reports have been
ignored. The Office of Inspector General or other outside investigative
group such as the General Accountability Office (GAO) must be brought
in to investigate and report on this situation. As long as the
oversight is retained internally, both at ICE and at the Departmental
level, no progress will be realized and ICE will continue on its
present course.
Question 2a. It is apparent that ICE has come to rely heavily on
contractors for bedspace and to administer its detention program.
Are Contract Detention Facilities and Intergovernmental Service
Agreement facilities held to the same standards as ICE-run facilities?
Answer. Policy-wise yes, but in practice no. DRO officers in the
field report that while the same detention standards apply to Contract
Detention Facilities and ICE-run facilities, they are often applied
differently in the case of Contract Detention Facilities. DRO officers
report that contract staff and managers in Contact Detention Facilities
are less likely to report standards violations than are ICE employees
in ICE-run facilities, stating that contractors are often more
concerned that exposing the violations could potentially mean the loss
of the ICE contract. Similarly, DRO officers report that ICE managers
are more inclined to ``make violations go away'' in contract facilities
because they are dependent on the facility for bedspace and don't want
to lose the contracted facility. DRO managers seem more willing to
address problems in ICE facilities because they have more authority
with ICE employees and are less concerned that an ICE facility might be
shut down due to standards violations.
Intergovernmental Service Agreement facilities (IGSAs) are a much
more complex issue, in part because there are so many and the
facilities themselves vary greatly. My personal background has been
working in and with the IGSA facilities. Generally speaking, problems
sometimes do exist in the IGSAs in terms of detention standards. The
most prevalent are standards involving access to legal libraries and
other issues such as phone calls. As with the contract facilities, I
believe ICE managers are often reluctant to report standards violations
because they are afraid to lose the bedspace. However, I have observed
a larger problem with ICE managers who simply ignore standards
violations in the IGSAs because there is no real oversight or
accountability. Basically, they can get away with and they know it.
Another major issue preventing progress in the IGSAs with improving
standards are the DRO supervisors and contract inspectors who actually
visit the IGSAs. Deputies working in an IGSA in my area reported that
their supervisors were furious when ICE managers came into a meeting
with jail staff ``barking orders,'' instead of diplomatically and
respectfully seeking a resolution to problems. That IGSA subsequently
refused to work with ICE. Contact inspection teams had a similar
disrespectful and authoritative approach in which AFGE National Council
118--ICE, Inquiry by the U.S. House of Representatives, Committee on
Homeland Security IGSAs have responded by telling ICE to take its
business elsewhere instead of improving standards for ICE detainees.
I would like to close this answer by saying that the majority of
IGSAs, in my experience, are quality facilities with quality staffs and
effective oversight. IGSA staff members are generally deputies who have
been through rigorous background checks and are very well trained--much
like DRO officers and agents. While there are certainly some bad IGSAs,
there are a lot more that are highly efficient facilities. ICE has
largely been at fault for not nurturing relationships with the IGSAs
and attempting to resolve and remove standards violations, as well as
discontinuing the use of IGSAs that are problematic. For most ICE
offices across the United States, prohibiting or greatly restricting
the use of IGSAs will have a very negative impact on ICE and its
ability to perform its mission.
Question 2b. What services or advantages do contractors provide
that ICE does not?
Answer. I am not aware of any services provided by contractors that
ICE is unable to provide. The only advantage offered by contractors is
the ability to hire large numbers of employees to work in these
facilities in a very short period of time. However, this advantage has
proven to be more of a disadvantage as this quick and easy workforce
has proven to be both dangerous and untrustworthy. As just one example,
contractors at the Northwest Detention Center in Tacoma, Washington
hired 97 contract guards without conducting background checks because
of pressure to quickly hire guards for the facility. ICE did not catch
the process for 2 years.
As I stated in my earlier testimony, ICE does not have a
``Detention Officer'' position. However, the Legacy INS did have a
position called a Detention Enforcement Officer which ended shortly
after ICE was created. This position did not have immigration arrest
authority and was specifically designed to perform the detention and
transportation functions currently needed by ICE. This position could
easily be brought back into use by ICE.
Question 2c. What services currently provided by a contractor could
be better provided by ICE?
Answer. I believe that just about any service could be better
provided by ICE employees. The only exceptions to this might be
services such as food services. Detention functions such as overseeing
detainees, transportation functions, and maintaining detainee property
would all most certainly be handled far more efficiently by ICE
employees. Also, all administrative and support functions such as
training assistants, research, data entry and records checks, travel
clerks, and information technology personnel, etc. As just one example,
contract clerks do not have the detailed professional knowledge that
ICE Detention and Removal Assistants possess. Contract clerks do not
know how to use ICE database systems, nor do they have the ability to
review and differentiate between cases, or identify problems that may
require immediate attention by ICE officers and mangers.
Before being hired, ICE employees must meet high qualification
standards regarding educational background and work experience and are
thoroughly screened through examination as well as extensive background
investigations. Typically, out of hundreds or even thousands of
applicants Nation-wide, only a few will be selected for hiring. While
this process may be somewhat time-intensive, it produces a far more
qualified employee and diversified workforce than does the far less
extensive hiring process used by contractors. Criminal and financial
background investigations conducted prior to the hiring of ICE
employees make it far less likely that ICE employees would be involved
in issues currently prevalent AFGE National Council 118)--ICE, Inquiry
by the U.S. House of Representatives, Committee on Homeland Security
among contractors conducting ICE work such as smuggling contraband,
drug distribution, fraud, theft, and sexual misconduct. I addressed
this problem in greater detail in my original written testimony on
December 10, 2009.
As long as hiring standards for ICE employees are maintained, ICE
DRO employees will always provide far superior services than contract
employees.
Questions From Chairman Bennie G. Thompson for Christopher L. Crane
Question 1a. In your testimony, you stated Detention and Removal
Operations (DRO) is ``drastically understaffed and overworked,'' and
that these conditions contribute to attrition.
Please elaborate on the reasons for attrition at DRO.
Answer. Surveys consistently show that the morale of ICE employees
ranks among the lowest of all the Federal agencies. ICE offices and
facilities are generally drastically understaffed. In spite of this
fact, ICE DRO managers continue to increase the workload, duties, and
responsibilities of DRO employees. At the same time, ICE employees are
among the lowest paid within DHS. As reported during my testimony on
December 10, 2009, Detention Removal Assistants (DRAs) and Immigration
Enforcement Agents (IEAs) hold only GS-7 and GS-9 pay grades
respectively, and have no promotion ladder to higher level positions.
While higher paying positions do exist within ICE, most DRO employees
view ICE DRO hiring and promotional practices as lacking credibility
and untrustworthy. For this reason, two of the largest employee groups
within ICE (DRAs and IEAs), do not consider their jobs to be
``careers'' because advancement to higher-paying positions does not
exist in the form of career ladders or through an open and fair
internal application process where selections are based upon merit. The
majority of ICE employees are always open to or looking for
opportunities in other agencies which allow better working conditions
and quality of life, as well as higher pay and career advancement.
Employee workload is a big problem within ICE which I believe can
best be illustrated through example. The Illegal Immigration Reform and
Immigration Responsibility Act of 1996 mandated that the Criminal Alien
Program (CAP) be transferred internally from the INS (now ICE) Office
of Investigations to DRO. When this transfer had not occurred by 2003,
a 10-year implementation plan was established. Former ICE Assistant
Secretary Julie Myers reduced that time to just 2 years. In Salt Lake
City, Utah, the DRO Field Office director mandated that his office
would take over CAP 6 months prior to the 2-year mandate set by A.S.
Meyers.
When Utah DRO took over the CAP program, it was drastically
understaffed with approximately 7-8 IEAs State-wide. These same
employees were already performing other full-time duties. As part of
the 2-year ``transition plan,'' DRO Utah received no training, no
increase in personnel (IEAs) to perform the new CAP duties, and did no
transition with the ICE Office of Investigations. In effect, there was
no planning and no transition. The existing IEAs were immediately
unable to handle the increased workload. Complaints from local jails
came pouring in that ICE was not doing its job and that dangerous
criminals were being released into Utah communities. As a result, DRO
managers immediately put pressure on IEAs and their managers to
increase CAP arrests. Some IEAs resorted to performing their regular
duties during the day, and spending nights and weekends working local
jails for CAP to increase arrest statistics. To make matters worse, the
Field Office Director announced plans to implement a 24-hour command
center in Salt Lake City which would also be manned by the 3 to 4 IEAs
in Salt Lake City who were already working around the clock. The
mandates set by both ICE Headquarters and the Field Office Director
lacked proper planning and resources which resulted in obvious failures
in the field and unbearable working conditions for DRO employees. Yet
in ICE's internal newsletter, ICE victoriously proclaimed, ``CAP
TRANSFER COMPLETED IN RECORD TIME.'' The statement is accurate; it was
completed in record time, but what ICE failed to admit was that it was
a complete failure in many areas because of lack of planning and
allocation of proper human resources. Utah DRO offices still suffer
from the negative effects of this poorly planned implementation.
Unfortunately, this is the manner in which ICE conducts business
Nation-wide. New programs and policies are implemented without proper
planning and without obtaining needed resources first. Managers do not
hold themselves accountable, but instead place the burden on their
employees. Initiatives like the Secure Communities program, for
example, already promise similar problems for our already overworked
and understaffed workforce. ICE's management practices are in need of
serious review. Obviously, no person wants to work around the clock in
these types of conditions and that will affect attrition, but in a big
picture sense, if DRO does not have the staff to effectively perform
its assigned mission, American communities are placed at risk.
Question 1b. How does ICE recruit and retain staff? What can be
done to improve these efforts?
Answer. I am not aware of any efforts by ICE to recruit or retain
staff in ICE DRO. If it is happening, I have never personally seen it
used in the field, and the AFGE ICE Council is not aware of it. The
management culture within ICE does not appear to appreciate or
understand the significant amount of taxpayer dollars spent to screen
and train Federal employees. As just one example, I have personally
heard ICE supervisors in my own office (DRO Salt Lake City) tell
employees, ``if you don't like it, leave.'' These remarks are made by
DRO managers to good employees who the agency desperately needs in its
understaffed offices. At the time these statements were made, I believe
our office was at approximately a 40 percent staffing level. As a
National Union officer, it is my opinion that this appears to be the
overall attitude toward employee retention throughout ICE DRO and ICE
Employee Labor Relations. The DRO management culture, in large part,
views employees as expendable and replaceable. As a Union, and as
employees, we know that simply is not the case.
In terms of recruiting and retention, ICE DRO must achieve pay
parity for its employees and create career ladders that offer career
advancement. ICE currently cannot compete with other agencies at either
recruiting new employees or retaining current ones. ICE must also
invest in local recruiting programs so that ICE has a presence at local
job fairs and similar functions aimed at attracting and recruiting
highly qualified candidates. With actions like the recent upgrading of
50,000 officers in Customs and Border Protection to GS-12, the worst of
ICE's recruitment and retention problems are yet to come.
In terms of retention alone, staffing numbers must be increased,
promotional practices must be reformed to ensure promotions are based
on merit, and working conditions must be improved. The American public
would be highly disappointed if they knew of the activities taking
place within ICE. As employees, Union representatives, and taxpaying
U.S. Citizens, DRO employees are always shocked to see that funding and
outside groups are provided to research, investigate, and address
issues like detention reform, but a similar investment is not made in
researching problems like discrimination, harassment, retaliation, lack
of oversight, and abuse of authority, which negatively impact every
function performed by ICE. As long as DHS and ICE ignore these
problems, morale will suffer and DRO employees will be seeking a better
place to work.
Stories of harassment, retaliation, and overall inappropriate
behavior by managers and supervisors with the Federal Air Marshal
Service surfaced in the media this week. Reporters, members of the
public, and members of the United States Congress are expressing
concern as they recognize the negative effects that these activities
have on the agency's ability to accomplish its mission. It should not
be forgotten that the Federal Air Marshal Service was a part of ICE,
and therefore its supervisors came from the ICE management culture. ICE
DRO and its employees are struggling with the same problems now being
experienced by the Federal Air Marshal Service. For DRO employees,
harassment, retaliation, false investigations of employees, and
practices by managers that place the public at risk are commonplace.
Question 2a. Given the rate of staff turnover at ICE Detention and
Removal, please describe the present DRO workforce.
How many years of experience on average does a Detention Officer or
Immigration Enforcement Agent possess?
Answer. Mr. Chairman, I apologize but I do not have access to this
information. However, it should be available from the Human Capital
Officer of ICE.
Question 2b. What are the implications for detention management?
Answer. Even the best policies and/or legislation regarding
detention management will not succeed if reforms are not made within
ICE. While effective policies are certainly an important part of
efficient detention management, it is the personnel conducting the work
who truly determine its success or failure. Policy and standards
violations by contract workers have substantiated this fact. If issues
regarding pay parity, understaffing, poor management, and hostile
working conditions persist within ICE, more employees will be leaving
ICE and the ability to recruit quality personnel will continue to
decline. ICE will then in all probability be forced to maintain and
possibly increase its dependence on contract workers who have proven
themselves detrimental to a safe, efficient, and ethical detention
setting within ICE.
The detention environment, by its very nature, will always provide
opportunities for those that would take advantage of others. Likewise,
it is an environment in which inadequate staffing translates to
inadequate attention to those entrusted to our care. Effective
detention management within ICE will rely more on the quality and
quantity of staffing than any other factors. Therefore, it is
imperative and in the best interest of the American public, that
contractor personnel are reduced or eliminated and ICE retain its own
workforce to manage this most important responsibility.
As previously stated, however, in order to recruit and retain a
quality workforce, ICE must first determine the level of human
resources needed to manage these initiatives and then must compensate
its employees so that the pay scales are comparable to other DHS
bureaus. Until ICE acknowledges this disparity and corrects it, it will
be impossible to efficiently manage these responsibilities and will be
forced to continue to rely on contractor personnel.
Questions From Chairwoman Loretta Sanchez for Donald M. Kerwin, Jr.
Question 1a. Given the high cost of maintaining and running
detention facilities, there is great interest in the development of a
robust Alternatives-to-Detention (ATD) program.
Do you have any estimates on the difference in costs between the
cost of enrolling an individual in one of the three current ATD
programs and the cost of housing an individual in a detention facility?
Answer. In July 2009, Dora Schriro, the former Director of the
Office of Detention Policy and Planning (ODDP) at Immigration and
Customs Enforcement (ICE), reported to the Migration Policy Institute
(MPI) that ICE does not collect ``complete and accurate information''
that would allow the agency to assess the cost of its three
alternative-to-detention (ATD) programs.\1\ Nonetheless, in the same
letter, ICE estimated the contract costs for the three ATD programs to
be:
---------------------------------------------------------------------------
\1\ Letter from Dora Schriro, Special Advisor, Office of the
Assistant Secretary, U.S. Immigration and Customs Enforcement, to
Donald Kerwin, Vice President for Programs, Migration Policy Institute
(received July 2, 2009).
---------------------------------------------------------------------------
Intensive Supervision Appearance Program (ISAP) $14.42 per
day;
Enhanced Supervision Reporting Program (ESR) $8.52 per day;
and
Electronic Monitoring Program (EM) 30 cents to $5 per day,
depending on the technology used.
These costs do not include expenses such as Detention and Removal
Operations staff time and Fugitive Operation Team activities.
By way of contrast, housing an individual in a ``hard'' detention
facility can cost in excess of $100 per day.\2\
---------------------------------------------------------------------------
\2\ U.S. Department of Homeland Security (DHS), ``ICE Detention
Reform: Principles and Next Steps'' (Fact Sheet, October 6, 2009),
http://www.dhs.gov/xlibrary/assets/
press_ice_detention_reform_fact_sheet.pdf.
---------------------------------------------------------------------------
In a January 25, 2010 speech at an MPI leadership forum, ICE
Assistant Secretary John Morton stressed that ATD costs can be further
limited by processing the removal cases of program participants on an
expedited basis. Morton stated that ideally, these cases would be fast-
tracked in immigration court dockets and heard within 40 to 60 days.\3\
---------------------------------------------------------------------------
\3\ C-SPAN Video Library, ``Obama Administration Immigration and
Customs Policy,'' (speech delivered by ICE Assistant Secretary John
Morton at the Migration Policy Institute, Washington, DC, January 25,
2010), min. 54-59, http://www.c-spanvideo.org/program/291598-1.
---------------------------------------------------------------------------
Dr. Schriro made the same point in her October 2009 report titled
``Immigration Detention Overview and Recommendations.''\4\ Schriro
recommended that ``the average length of time an alien spends in an ATD
program should be monitored to ensure it is comparable to aliens who
are detained, in order to maximize the number of successful completions
and reduce overall spending.''\5\
---------------------------------------------------------------------------
\4\ Dr. Dora Schriro, Immigration and Detention Overview and
Recommendations (Washington, DC: Immigration and Customs Enforcement,
October 6, 2009), http://www.ice.gov/doclib/
091005_ice_detention_report-final.pdf.
\5\ Schriro, Immigration and Detention Overview and
Recommendations, 20-21.
---------------------------------------------------------------------------
Question 1b. Beyond the three ATD programs, are there other
programs that you can recommend that would be more cost-effective?
Answer. A number of cost-effective ATD programs were developed and
tested by non-governmental organizations in the 1990s. Successful ATD
programs:
Enjoy high levels of program compliance;
Offer a cost-effective alternative to hard detention;
Utilize careful screening procedures to determine risk; and
Minimize restrictions on participants based on assessed
risk.
Programs run by the Vera Institute of Justice, Catholic Charities
of New Orleans, and Migration and Refugee Services (MRS) of the United
States Catholic Conference all employed various strategies to try to
achieve the goals described above.
In 1996, the former Immigration and Naturalization Service (INS)
contracted with the Vera Institute of Justice to run a 3-year pilot ATD
program.\6\ The program sought to ``maximize release and community
supervision at the beginning of a person's case and maximize detention
at the moment that person loses his or her claim.''\7\ The program:
---------------------------------------------------------------------------
\6\ Oren Root, The Appearance Assistance Program: An Alternative to
Detention for Noncitizens in U.S. Immigration Proceedings (New York:
Vera Institute for Justice, 2000), 1, http://www.vera.org/
download?file=209/aap_speech.pdf.
\7\ Ibid, 2.
---------------------------------------------------------------------------
Helped participants secure legal representation;
Provided information about the immigration court process;
and
Stressed the consequences to participants of not appearing
at immigration hearings (``absconding'').\8\
---------------------------------------------------------------------------
\8\ Ibid, 3-4.
---------------------------------------------------------------------------
Individuals enrolled in Vera's pilot program demonstrated a ``high
rate of compliance with hearing requirements'' when compared with
similarly situated persons who had been initially detained and then
released to await their hearings.\9\ The study concluded that such
programs were ``not only smart public policy, but fiscally prudent and
humane.''\10\
---------------------------------------------------------------------------
\9\ Ibid, 5-7.
\10\ Ibid, 8.
---------------------------------------------------------------------------
In 1998, Catholic Charities of New Orleans administered a program
for indefinite detainees that provided participants with housing, job
counseling, and assistance in accessing social services. Participants
were carefully screened: Only persons determined not to pose a flight
risk or a danger to the community were eligible to participate.
Participants who did not comply with program requirements were reported
to INS and placed in detention. However, only one of the program's 21
participants was redetained. Catholic Charities ultimately judged the
ATD program to be a safe, practical, and less costly alternative to
indefinite detention.\11\
---------------------------------------------------------------------------
\11\ Catholic Legal Immigration Network, Inc (CLINIC), The Needless
Detention of Immigrants in the United States (Washington, DC: CLINIC,
2000), 26-27.
---------------------------------------------------------------------------
From 1987 to 1999, Migration and Refugee Services administered a
program for so-called ``Mariel'' Cubans that offered housing,
employment counseling, and advice on how to access social services. MRS
carefully screened potential participants, and reported individuals who
did not adhere to program requirements to INS. Ultimately, the program
cost dramatically less than the continued detention of these
individuals.\12\ The program served approximately 50 to 60 persons per
year and enjoyed a compliance rate with the program's conditions of
roughly 75 percent.\13\
---------------------------------------------------------------------------
\12\ Ibid, 27-28.
\13\ Ibid, 28.
---------------------------------------------------------------------------
Question 2a. The ICE report released in October and your research
indicate a high number of detainees in custody do not have criminal
records. This finding is particularly striking in light of efforts to
prioritize criminal aliens.
Please elaborate on the impact of detaining non-criminal aliens.
Answer. According to the October 2009 Schriro report, ``with only a
few exceptions, the facilities that ICE uses to detain aliens were
built, and operate, as jails and prisons to confine pre-trial and
sentenced felons.''\14\ This criminal detention model is more costly
and restrictive than necessary as a means to ensure court appearances
by non-criminal detainees.\15\ In addition, detaining noncriminal
immigrants is not an effective way to prioritize use of ICE's limited
detention space.\16\
---------------------------------------------------------------------------
\14\ Schriro, Immigration and Detention Overview and
Recommendations, 2-3.
\15\ Ibid.
\16\ Root, The Appearance Assistance Program: An Alternative to
Detention for Noncitizens in U.S. Immigration Proceedings, 2.
---------------------------------------------------------------------------
Persons without criminal records make up a substantial portion of
ICE detainees.\17\ According to an MPI analysis, 58 percent of persons
in ICE custody on the night of January 25, 2009 did not have criminal
records.\18\ In addition, Schriro's report noted that only 66 percent
of ICE detainees on September 1, 2009 were mandatory detainees and that
``the majority of the [detainee] population is characterized as low
custody, or having a low propensity for violence.''\19\
---------------------------------------------------------------------------
\17\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can
ICE Meet Its Legal Imperatives and Case Management Responsibilities?
(Washington, DC: Migration Policy Institute, September 2009), http://
www.migrationpolicy.org/pubs/detentionreportSept1009.pdf.
\18\ Ibid, 1.
\19\ Schriro, Immigration and Detention Overview and
Recommendations, 2.
---------------------------------------------------------------------------
Beyond the financial cost, detention can have a considerable impact
on the welfare and heath of immigrants, both those who have and those
who do not have criminal records. As has been well documented,
detention can prevent detainees from meaningfully pursuing legitimate
immigration claims, securing legal representation, and maintaining
contact with family members. Detention conditions can be especially
traumatic for asylum seekers and torture survivors.
Question 2b. Has a lack of ATD options played a role in the
detention of non-criminal aliens?
Answer. According to its most recent estimates, ICE has the ability
to accommodate roughly 18,000 individuals in ATD programs on a daily
basis.\20\ The individual ATD programs can respectively accommodate:
---------------------------------------------------------------------------
\20\ U.S. Immigration and Customs Enforcement. ``Alternatives to
Detention for ICE Detainees,'' (Fact Sheet, October 23, 2009), http://
www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.
---------------------------------------------------------------------------
6,000 persons--Intensive Supervision Appearance Program
(ISAP);
7,000 persons--Enhanced Supervision/Reporting (ESR); and
5,000 persons--Electronic Monitoring (EM).\21\
---------------------------------------------------------------------------
\21\ Ibid.
---------------------------------------------------------------------------
ATD programs are not available throughout the country.\22\ In
addition, ICE needs to improve its ability to assess the flight and
safety risks presented by potential program participants.\23\ ICE plans
to develop ``a Nation-wide implementation plan'' for its ATD program
and a more comprehensive risk assessment tool to guide its placement
decisions.\24\
---------------------------------------------------------------------------
\22\ Schriro, Immigration and Detention Overview and
Recommendations, 20.
\23\ Testimony of Donald Kerwin, ``Moving Toward More Effective
Immigration Detention Management,'' before the House Subcommittee on
Border, Maritime, and Global Counterterrorism, December 10, 2009, 5,
http://www.migrationpolicy.org/pubs/Testimony-12-10-2009.pdf.
\24\ DHS, ``ICE Detention Reform: Principles and Next Steps.''
---------------------------------------------------------------------------
Finally, if properly structured, ATD programs could be considered
alternate forms of detention, and thus made available to mandatory
detainees. As I stated in my testimony:
``[m]andatory detention laws broadly cover significant numbers of
persons who, with proper supervision, would not be a flight risk. Given
that 66 percent of ICE detainees must be detained,\25\ the significant
expansion of alternative-to-detention programs--and the resulting cost
savings to the government and benefits to the affected individuals--
will depend on whether alternatives to detention are found to be soft
detention or constructive custody.''\26\
---------------------------------------------------------------------------
\25\ See, e.g., Young v. INA, 208 F. 3d 1116, 1118 (9th Cir. 2000)
(release to halfway house held to be a form of civil custody).
\26\ Testimony of Donald Kerwin, ``Moving Toward More Effective
Immigration Detention Management,'' 6.
---------------------------------------------------------------------------
Questions From Chairman Bennie G. Thompson for Donald M. Kerwin, Jr.
Question 1. Your organization released a report in September that
raised the issue of whether ICE has the capacity to comply with its own
National detention standards. Specifically, the report cited serious
lapses in ICE's information systems. Illustrating this point, ICE
disclosed this past August that 10 persons whose deaths had not
previously been reported had apparently died in custody between 2004
and 2007.
If ICE lacks the capacity to track the number of detainee deaths
that occur in its custody, how can the agency comply with the law and
detention standards? How do you recommend ICE rectify these capacity
problems?
Answer. In September 2009, MPI released a report exploring whether
or not the information tracked by ICE's central database--known as
ENFORCE--allowed the agency to abide by its National detention
standards.\1\ The report uncovered a number of anomalies in the
information tracked by ICE. One of the report's most striking findings
was that ENFORCE did not appear to track detainee deaths; a separate
database and protocol exists for this purpose.
---------------------------------------------------------------------------
\1\ Kerwin and Lin, Immigrant Detention: Can ICE Meet Its Legal
Imperatives and Case Management Responsibilities?.
---------------------------------------------------------------------------
On January 25, 2010, ICE Assistant Secretary John Morton stated
that ICE had modified its protocol for reporting and investigating
detainee deaths.\2\ However, it is still not certain whether ICE tracks
deaths and other legally and operationally significant detainee
information in the ENFORCE database. To our knowledge, ICE has not
shared with Congress or other stakeholders a complete list of the
detainee information tracked in ENFORCE or its manual, which describes
ENFORCE's database fields and how ICE collects and records detainee
information.
---------------------------------------------------------------------------
\2\ C-SPAN Video Library, ``Obama Administration Immigration and
Customs Policy,'' min. 37-40.
---------------------------------------------------------------------------
As the MPI report proposed:
``ICE [should] initiate a thorough inventory and review of its
information systems, including ENFORCE, to ensure that they
allow for informed decisions related to the substance and
timing of:
``who ICE must detain and who it must consider for
release, with a particular focus on when `mandatory'
detainees become eligible for release;
``which detainees must be allowed to participate in ICE's
two post-removal order, custody review processes;
``who should be placed in ICE's alternatives to detention
programs; and
``ICE's adherence to its National detention
standards.''\3\
---------------------------------------------------------------------------
\3\ Kerwin and Lin, Immigrant Detention: Can ICE Meet Its Legal
Imperatives and Case Management Responsibilities, 25.
ICE should also ``examine how ENFORCE relates to other databases
within the Department of Homeland Security and other Federal
agencies.''\4\ Finally, ICE should make public its information systems
manual and its protocols for collecting information from detainees.
---------------------------------------------------------------------------
\4\ Ibid, 37.
---------------------------------------------------------------------------
Since developing civil detention standards is at the core of
immigrant detention reform, improvements in ICE's information systems
should allow the agency to comply with current detention standards and
position it to comply with the new standards once they are developed.
Question 2. This past October, the Houston Chronicle obtained data
that raised questions about the effectiveness of two of the three
existing ATD programs. In one program, nearly one in five participants
absconded while under supervision during the past 5 years.
What contributed to the program mismanagement? How can these
programs be improved?
Answer. The Houston Chronicle questioned ICE's reporting on the
success of its ATD program.\5\ In its evaluation of its ATD program,
ICE had reportedly failed to count as program participants those
persons who had absconded from the program. As a result, court
appearance rates, while still high under the ISAP program (roughly 82
percent), were not as high as the 99 percent rate previously reported
by ICE based on its faulty methodology.\6\
---------------------------------------------------------------------------
\5\ Susan Carroll, ``Flaws found in options for immigrant
detention,'' Houston Chronicle, October 20, 2009, http://www.chron.com/
disp/story.mpl/metropolitan/6675443.html.
\6\ Ibid.
---------------------------------------------------------------------------
Compliance with ATD program requirements--namely, the requirement
that program participants appear at their scheduled hearings--could be
improved through the implementation of a more reliable risk assessment
tool, coupled with efforts to expedite the removal cases of ATD program
participants. The longer participants remain in ATD programs, the more
likely they are to abscond.\7\
---------------------------------------------------------------------------
\7\ Testimony of Donald Kerwin, ``Moving Toward More Effective
Immigration Detention Management,'' 5.
---------------------------------------------------------------------------
Providing ATD program participants with assistance in securing
legal counsel and with information about the removal process--
especially the consequences of not appearing--should also be core
components of any ATD program. These factors have proven vital to
ensuring high court appearance rates in ATD programs.\8\
---------------------------------------------------------------------------
\8\ Root, The Appearance Assistance Program: An Alternative to
Detention for Noncitizens in U.S. Immigration Proceedings, 3-4; Megan
Golden, Oren Root, and David Mizner, The Appearance Assistance Program:
Attaining Compliance with Immigration Laws Through Community
Supervision (New York: Vera Institute for Justice, 1998), 10-13, http:/
/www.vera.org/download?file=211/aap.pdf.
---------------------------------------------------------------------------
Ultimately, ATD programs will be more successful if they are made
available to individuals while their removal cases are pending, rather
than relied upon to ensure people's appearance for their actual
deportations. The possibility of prevailing in their removal cases,
coupled with the knowledge that this represents their only chance to
remain lawfully in the United States, will compel program participants
to appear for their court hearings.\9\
---------------------------------------------------------------------------
\9\ Root, The Appearance Assistance Program: An Alternative to
Detention for Noncitizens in U.S. Immigration Proceedings, 3-4.
---------------------------------------------------------------------------
Question 3. According to the Dora Schriro report, approximately 50
percent of the immigrant detainee population is housed in shared-use
county jails. ICE only owns and operates seven facilities Nation-wide.
Does immigrant detainee care suffer because ICE does not own or
operate a larger share of facilities? What type of facility provides
the best care and why?
On January 25, 2010, Assistant Secretary Morton described the
immigrant detention system as a ``sprawling network of contract
facilities that are uneven in their design, uneven in the kinds of
conditions that they offer, [and] uneven in the kinds of medical
services that they provide.''\10\ The degree to which private
contractors manage, oversee, and operate the ICE detention system--and
the disparate conditions in these facilities--continues to surprise
even close observers of the immigration detention system.
---------------------------------------------------------------------------
\10\ C-SPAN Video Library, ``Obama Administration Immigration and
Customs Policy,'' min. 30-32.
---------------------------------------------------------------------------
ICE is addressing the need for increased detention oversight
through plans to hire Federal employees to provide on-site oversight at
the facilities that house more than 80 percent of its detainees.\11\
---------------------------------------------------------------------------
\11\ DHS, ``ICE Detention Reform: Principles and Next Steps.''
---------------------------------------------------------------------------
The ICE facilities providing the best care tend to be those few
that do not operate based on a penal model. However, there have been
problems associated with each type of ICE detention facility. ICE
should continue to identify alternative housing options that reflect
its civil detention authorities. Formulating and implementing civil
detention standards must be at the core of immigration detention
reforms, and this effort must be combined with the establishment of
effective detention oversight. In its efforts to develop civil
detention standards, ICE should study a range of potentially analogous
systems, both in the United States and abroad.
Questions From Chairwoman Loretta Sanchez for Brittney Nystrom
Question 1a. In your testimony, you mention that one of the biggest
frustrations for non-governmental organizations (NGOs) is the lack of
collaboration with ICE field offices.
Please elaborate on this frustration.
Question 1b. If NGOs had the opportunity to work with field
offices, what would that collaboration look like?
Answer. ICE field offices vary widely in outreach to local NGOs and
willingness to respond to concerns. Unlike the more formalized liaison
or working group structures of communication that exist between ICE
headquarters and NGOs in Washington, DC, collaboration with ICE field
offices is varied and often dependent on the attitude or personality of
the field office leadership. For example, ICE field offices do not
uniformly engage in liaison meetings or establish channels of
communication with local NGOs, and far too frequently do not respond to
the communications made by local community-based groups. Some field
offices foster robust relationships with NGOs, while others are less
willing to engage in outreach. Despite National detention reforms
undertaken by ICE leadership, NGOs that provide direct legal services
and know your rights presentations to detainees have varying levels of
access and collaboration with ICE field offices. Some of these service
providers feel constrained to report poor detention conditions or
detainee reports of ICE misconduct for fear of retaliation and the need
to maintain cordial relations with ICE field offices in order to
maintain access to detainees.
A lack of transparency in ICE detention and deportation practices
and procedures frustrates NGOs and undermines efforts to establish
uniformity. Without public and standardized practices and policies,
NGOs are unable to detect or report noncompliance. ICE field offices
have historically resisted transparency and have been referred to as
``fiefdoms'' that operate outside the oversight of ICE headquarters
staff. In addition to the vast variation in conditions across the
network of facilities that ICE uses, there is a significant variation
of release practices across field offices, including use of
alternatives to detention programs, parole grant rates for arriving
asylum seekers, timelines for conducting post-order custody reviews and
subsequent release for indefinite detainees, and bond determinations.
ICE headquarters should encourage field offices to work alongside
local NGOs and should standardize best practices in community outreach
and partnership. Collaboration with NGOs can include: Establishment of
standing liaison meetings between leaders at each field office and the
NGO community, regularized agreements that encourage and solidify
access for NGOs to provide legal services to detainees, establishment
of minimum response times to NGO concerns regarding detainees, and
sharing of expected practices and policies with NGO partners. Perhaps
most simply, ICE should issue guidance to field offices supporting
collaboration with NGOs. This approach has proved beneficial to both
USCIS, which issued guidance encouraging asylum offices to work with
NGOs representing detainees at credible fear or reasonable fear
interviews,\1\ and to EOIR, which underscored the benefit NGOs and pro
bono attorneys provide to immigration courts and standardized
facilitation of their legal services.\2\ Finally, collaboration between
NGOs and field offices can include protocols for outreach to NGOs for
situations concerning vulnerable detainees in need of release, legal,
or medical assistance.
---------------------------------------------------------------------------
\1\ Memorandum from Joseph E. Langlois to Asylum Office Directors
and Deputy Directors, Nov. 8, 2007, 120/9.15, available at http://
www.uscis.gov/files/pressrelease/CredibleFear110807.pdf.
\2\ Memorandum from David L. Neal to Immigration Judges, Court
Administrators, Attorney Advisors and Judicial Law Clerks, and
Immigration Court Staff, March 10, 2008, available at http://
www.justice.gov/eoir/efoia/ocij/oppm08/08-01.pdf.
---------------------------------------------------------------------------
Question 2a. A lot of attention has been given to who ICE detains
and the risk they may pose to the community. At present, ICE uses
criminal history to determine whether a detainee should be placed in
low, moderate, or high custody. However, under this classification
system, non-violent criminal aliens are frequently housed with violent
criminals.
How would you recommend ICE improve the current ICE classification
system for detainees?
Question 2b. How should vulnerable populations be classified? What
would a facility for detainees in this group look like?
Answer. During both the initial custody determination and any
subsequent classification or risk assessment, the presence of a
criminal record should not automatically trigger restrictions on
liberty.\3\ It must not be overlooked that the purpose of ICE detention
is to ensure compliance with future immigration proceedings. An
individual who comes into ICE custody from the criminal justice system
has already completed any imposed criminal sentence. ICE's assessment
tools should take into consideration a host of factors beyond whether
an individual has a record of criminal convictions, such as the
presence of medical or mental health factors, whether an individual is
a primary caregiver, and the individual's ties to the community. Where
detention is found to be necessary, ICE should make housing
classifications to ensure that individuals are placed in the least
restrictive setting and are able to access medical and mental health
care. This necessitates a medical classification contemporaneous with
the housing classification.
---------------------------------------------------------------------------
\3\ ICE statistics show that only 11 percent of individuals in
detention had been alleged to have committed violent crimes, and that
the majority of the population is characterized as low custody, or
having a low propensity of violence, i.e., the majority of individuals
designated as ``criminal aliens''--which includes individuals who have
been charged with traffic violations, would not pose any threat to
public safety. Of the individuals designated as ``criminal aliens,''
the most common criminal charges were for offenses involving traffic
violations, drugs, simple assault, and larceny. ``Immigration Detention
Overview and Recommendations,'' ICE, Dr. Dora Schriro, Oct. 6, 2009,
available at http://www.ice.gov/doclib/091005_ice_detention_report-
final.pdf.
---------------------------------------------------------------------------
Where criminal records are associated with an individual
apprehended by ICE, the records must be certified. Criminal records
should also be further assessed for length of time elapsed since the
conviction, evidence of rehabilitation since the conviction, the degree
and severity of the conviction, and whether the conviction is solely a
consequence of lack of immigration status. Arrests that did not result
in convictions should not weigh into a custody determination or housing
classification decision. Standardized and thorough evaluations of
criminal records would help ensure that individuals are classified
accordingly and would prevent excessive restrictions on liberty.
Vulnerable populations are especially at risk and cannot safely or
humanely be detained in facilities meant for use by the criminal
justice system. Current detention facilities used by ICE are overly
restrictive given ICE's narrow, civil detention authority, and are
traumatizing for all immigration detainees. All reasonable efforts
should be undertaken by ICE to ensure that vulnerable populations are
not detained or are released from detention. Congress should
appropriate sufficient funds to establish National alternatives to
detention, including community-based programs. If risk of flight is a
concern, individuals who belong to a vulnerable population should be
automatically considered for enrollment in a secure alternative to
detention program with appropriate services to ensure appearance. If
detention must be imposed, vulnerable populations should be housed in
the least restrictive setting possible. If ICE persists on the
detention of these populations, they require specialized, on-site
medical and mental health care, generous telephone and e-mail
communication opportunities, absence of jail-issued clothing, shackles,
and other jail setting accoutrements, and enhanced freedom of movement
both within and outside detention facilities.
Questions From Chairman Bennie G. Thompson for Brittney Nystrom
Question 1a. There has been a six-fold increase in the number of
immigration detention beds in the United States since 1994. This is a
rapid increase in detention bed capacity in a relatively short period
of time.
To what extent has the rapid growth in detention space contributed
to problems with the detention system?
Question 1b. What can ICE do to address these problems, in both the
short and long term?
Answer. The explosion of ICE's immigration detention system
resulted in a sprawling, decentralized detention system that is overly
reliant on both private contractors and existing jails and prisons.
ICE's rapidly expanded network of approximately 300 detention
facilities has created a challenge to properly oversee and manage
conditions at each facility. Thus, day-to-day operations and conditions
of detention at the majority of these facilities have been ceded to
contractors, both from private industry and local government. Detention
condition standards are not now mandatory for facilities that are
operated through intergovernmental service agreements, which represent
the bulk of facilities in the detention network, and none of the
standards are legally enforceable because they are neither codified in
statute nor promulgated into regulations. As a result, conditions vary
widely across the patchwork of facilities pushed into service over the
past few years by ICE to house the escalating number of detainees.
These facilities are typically county jails that detain individuals for
ICE in an identical fashion to the individuals they detain for the
criminal justice system, sometimes mixing ICE detainees and the general
criminal population in the same cells. Finally, ICE's network of
detention beds is strongly weighted towards the South, with Texas
outpacing all other areas in numbers of ICE detainees. The unequal
distribution of detention beds Nation-wide created skyrocketing numbers
of transfers as detainees are shuffled to cheaper and more available
detention beds. Correspondingly, detainees have become clustered in
rural areas far from legal services, family support, and medical
providers.
ICE must make both short-term and long-term efforts to regain
operational control of the facilities it employs and to enforce
detention standards appropriate for civil immigration detention. In the
short term, ICE must install on-site employees at each detention
facility to regulate conditions of detention and create meaningful
oversight. ICE Assistant Secretary John Morton has publicly committed
to reclaiming oversight capability of facilities used to house
immigration detainees. However, announcements that more than 50 Federal
employees will be deployed to the more than 300 detention facilities
ICE currently uses have not yet been fulfilled. Other short-term
corrections would include implementation of simple improvements in
conditions of detention that would emphasize the civil, non-punitive
nature of immigration detention. Some improvements could be effectuated
quickly, such as extended visitation hours, access to personal clothing
rather than required jail uniforms, and greater freedom of movement
within facilities. ICE has also taken steps to update and improve the
Performance Based National Detention Standards that were slated for
National implementation in January 2010. Implementation and enforcement
of these standards offer a critical opportunity for ICE to set a new
course for immigration detention.
Contracts with detention facilities must be renegotiated in a
manner that emphasizes ICE's expectations for meeting the improved
standards and establishes consequences for non-compliance.
Additionally, unannounced and more frequent inspections against
standards, enhanced grievance review procedures and the deployment of
Federal employees to every facility ICE uses are required to ensure
compliance with ICE's enhanced detention standards.
Longer-term corrections include a shift in the concept of
immigration detention and an overhaul of detention facility design to
reflect ICE's civil detention authority. A truly civil detention system
would be separate and distinct from the correctional facilities relied
upon by ICE today. Detention standards appropriate to a civil detention
system must be developed, implemented, monitored, and made enforceable
through statute or regulation. Thus, ICE may need to locate or build
detention facilities that match its detention authority and
requirements.
Question 2a. In your testimony, you cite a Washington Post
investigative series from last year that found substandard medical care
may have contributed to the deaths of at least 30 individuals in
immigration custody.
What are the biggest challenges facing the detainee medical care
system?
Question 2b. What can ICE do to address problems with this system,
both over the long term and more immediately?
Answer. An initial challenge to the provision of medical care to
immigration detainees is that adequate screening is not conducted by a
medical professional at the point of apprehension or booking to
identify medical or mental health concerns. As a result, individuals
who are medically vulnerable are nonetheless placed into immigration
detention. For example, Sandra Kenley was placed into immigration
detention despite alerting DHS officials that she was scheduled for a
hysterectomy and was hemorrhaging daily. She died only a few weeks
after being placed by ICE in county jails in Virginia.\4\ Furthermore,
many asylum seekers or survivors of torture linger behind bars pending
adjudication of their immigration claims. For these individuals,
detention is a re-traumatizing event documented as causing distress.\5\
Individuals who present at intake with medical or mental health
concerns should be automatically considered for release, parole, or
alternatives to detention. Additionally, there must be on-going medical
evaluations of detainees to identify individuals who may have developed
medical or mental health conditions while in custody.
---------------------------------------------------------------------------
\4\ ``New Scrutiny as Immigrants Die in Custody'', The New York
Times, Nina Bernstein, June 26, 2007, http://www.nytimes.com/2007/06/
26/us/26detain.html?pagewanted=all.
\5\ ``From Persecution to Prison: The Health Consequences of
Detention for Asylum Seekers'', Physicians for Human Rights and the
Bellevue/NYU Program for Survivors of Torture, June 2003, available at
http://physiciansforhumanrights.org/library/documents/reports/report-
perstoprison-2003.pdf.
---------------------------------------------------------------------------
Additionally, there are a host of challenges ICE must overcome to
provide sufficient medical care after individuals are detained. One
chronic obstacle to effective delivery of medical care to detainees has
been vacant or non-existent medical staff positions within detention
facilities. In recent years, some of the largest detention facilities
holding thousands of detainees have had no staff psychiatrists on
site.\6\ The physical design of detention facilities used by ICE has
also led to inappropriate care for sick detainees. Generally, many
facilities used by ICE were built for short-term custody and are not
equipped to meet the needs of detainees who may be kept there for
months if not years. To illustrate, detainees with mental health needs
have been inappropriately and dangerously confined to isolation units,
or ``the hole'', due to a lack of designated medical facilities within
the facility. A delegation of the Inter-American Commission on Human
Rights expressed distress after observing ``the use of solitary
confinement to ostensibly provide personal protection for vulnerable
immigrant detainees, including homosexuals, transgender detainees,
detainees with mental illnesses, and other minority populations.'' The
delegation also noted that ``the use of solitary confinement as a
solution to safeguard threatened populations effectively punishes the
victims'' and urged the U.S. Government ``to establish alternatives to
protect vulnerable populations in detention and to provide the
mentally-ill with appropriate treatment in a proper environment.''
Another problematic component of health care in immigration detention
is the troubled Treatment Authorization Request or ``TAR'' process for
obtaining medical care beyond what care is available within a detention
facility. The DHS Office of Inspector General made several
recommendations on ways to improve this process in a report issued in
December 2009.\7\
---------------------------------------------------------------------------
\6\ ``Detaining Care, Part One: Mental Hell'', The Texas Tribune,
Emily Ramshaw, Nov. 16, 2009, available at http://www.texastribune.org/
stories/2009/nov/16/psychiatrists-mental-health-care-absent-
immigration-detention-centers/.
\7\ http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-23_Dec09.pdf.
---------------------------------------------------------------------------
In addition to implementing the OIG's recommendations on the TAR
process, ICE is moving forward on immediate improvements to the
existing Performance Based National Detention Standards. These
enhancements can help address medical intakes, comprehensive medical
evaluations, responses to detainee requests for medical care, and
proper care and housing for detainees with medical and mental health
issues. More long-term improvements to medical care for immigration
detainees should include a transition to electronic medical records for
all detainees and the development of a new construct of civil detention
standards that are separate from correctional standards that have been
used in the past. However, the best designed standards will not result
in improved medical care if they are not implemented, supervised, and
made enforceable. ICE must actively supervise conditions at each
detention facility and there must be consequences for non-compliance.
Facility staff and ICE staff at detention facilities require better
training on recognizing and responding to medical and mental health
conditions.
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