<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:22332.wais]
S. Hrg. 109-64
STRENGTHENING INTERIOR ENFORCEMENT: DEPORTATION AND RELATED ISSUES
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP
and
SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 14, 2005
__________
Serial No. J-109-13
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Immigration, Border Security and Citizenship
JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
James Ho, Majority Chief Counsel
Jim Flug, Democratic Chief Counsel
------
Subcommittee on Terrorism, Technology and Homeland Security
JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois
Stephen Higgins, Majority Chief Counsel
Steven Cash, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 6
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 103
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 6
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 5
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 133
WITNESSES
Cerda, Victor X., Acting Director of Detention and Removal
Operations, Immigration and Customs Enforcement, Department of
Homeland Security, Washington, D.C............................. 9
Cohn, Jonathan, Deputy Assistant Attorney General, Civil
Division, Department of Justice, Washington, D.C............... 7
Gelernt, Lee, Senior Staff Counsel, Immigrants' Rights Project,
American Civil Liberties Union, Washington, D.C................ 29
Venturella, David, U.S. Investigations Services, Washington, D.C. 27
QUESTIONS AND ANSWERS
Questions for Victor Cerda submitted by Senators Cornyn, Kennedy,
and Kyl........................................................ 43
Responses of Jonathan Cohn to questions submitted by Senators
Kennedy and Kyl................................................ 48
SUBMISSIONS FOR THE RECORD
Callahan, Randy A., Executive Vice President, National Homeland
Security Council, AFGE, Washington, D.C., prepared statement... 56
Cerda, Victor X., Acting Director of Detention and Removal
Operations, Immigration and Customs Enforcement, Department of
Homeland Security, Washington, D.C., prepared statement........ 60
Cohn, Jonathan, Deputy Assistant Attorney General, Civil
Division, Department of Justice, Washington, D.C., prepared
statement...................................................... 72
Culliton, Katherine, Legislative Staff Attorney, Mexican American
Legal Defense and Educational Fund, Washington, D.C., prepared
statement...................................................... 106
Gelernt, Lee, Senior Staff Counsel, and Lucas Guttentag,
Director, Immigrants' Rights Project, American Civil Liberties
Union, Washington, D.C., prepared statement.................... 117
Morawetz, Nancy, Professor, New York University School of Law,
Immigrant Rights Clinic, prepared statement.................... 135
Venturella, David, U.S. Investigations Services, Washington,
D.C., prepared statement....................................... 142
STRENGTHENING INTERIOR ENFORCEMENT: DEPORTATION AND RELATED ISSUES
----------
THURSDAY, APRIL 14, 2005
United States Senate,
Subcommittee on Immigration, Border Security and
Citizenship and the Subcommittee on Terrorism, Technology
and Homeland Security, Committee on the Judiciary,
Washington, DC.
The Subcommittees met, pursuant to notice, at 2:34 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
Chairman of the Subcommittee on Immigration, Border Security
and Citizenship, presiding.
Present: Senators Cornyn, Kyl, Hatch, Sessions, Coburn, and
Kennedy.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Chairman Cornyn. Good afternoon. This joint hearing of the
Senate Subcommittee on Immigration, Border Security and
Citizenship and the Subcommittee on Terrorism, Technology and
Homeland Security will come to order.
First, I want to thank Chairman Specter for scheduling
today's hearing and to say that once again, I am pleased that
this hearing today is a joint hearing of two committees that
have a vital interest in the subject we are going to discuss.
As we noted last week, Senator Kyl and I plan to work
together through these hearings and, of course, in negotiations
to address problems facing our immigration system.
I also want to express my gratitude to our ranking members
of both Subcommittees, Senator Kennedy, the Ranking Member of
the Immigration Subcommittee, and Senator Feinstein, the
Ranking Member of the Terrorism Subcommittee, as well as their
staffs, for working so diligently to make this hearing
possible.
While traditional immigration issues do not always involve
terrorism issues, we need to remember that terrorists desiring
to enter the country explore illegal entry, alien smuggling,
and other ways to exploit our immigration laws to facilitate
entry into the United States. That is why having these two
subcommittees jointly participate in these enforcement hearings
brings important perspectives and depth to our review of these
issues.
No serious discussion of comprehensive immigration reform
is possible without a review of our Nation's ability, or maybe
we should say inability at present, to secure its borders and
enforce its immigration laws. These discussions must
necessarily include providing sufficient tools and resources to
keep out of our country those who should be kept out, to
identify those in our country who should be apprehended, and to
remove from this country those the Government orders deported.
These issues continue to dominate public discussions across
the country and are among the most significant topics facing
our Nation today. We are even finding that they are creeping
into the war supplemental debate that we are having on the
floor right now, unfortunately, from my standpoint.
Just last month, President Bush met with leaders of Canada
and Mexico in my home State to discuss, among other things,
border security, and I hope today's hearing will build on that
discussion.
This is the second in a series of hearings planned on
strengthening enforcement. In our first hearing, we examined
the challenges faced by our inspectors at ports of entry,
including the need for adequate training, the need to provide
them with sufficient relevant information, and the need for
document integrity.
Beyond today's hearing, I hope to continue this series
later this month by examining the tools and resources needed to
protect our borders along the perimeter of the country in
between authorized ports of entry and other issues important
and relevant to this discussion. But, today we will focus on
the challenges to adequate enforcement of our immigration laws
in the interior of our country, away from the borders.
Generally, when people talk about immigration enforcement,
they naturally refer to Border Patrol agents, and Border Patrol
agents are critical to the enforcement process. However,
illegal immigration issues are not limited to the border or to
border States. Equally important are those immigration
investigators, detention officers, and other professionals
responsible for locating, detaining, and removing those who are
in this country in violation of our laws.
Recent events have highlighted the importance of these
interior enforcement issues, including intelligence
professionals expressing concerns that terrorists intend to
surreptitiously enter our country. These concerns are striking
given two significant events recently reported by the Homeland
Security Department. First, DHS discovered an elaborate tunnel
under the California-Mexico border, complete with a cement
floor and intercom connecting a house in Mexico to a home in
California. Additionally, ICE agents recently rounded up more
than 100 gang members from the violent Central American gang
MS-13, all of whom were in this country illegally.
Both of these examples--and they are only two examples--
illustrate the emerging national security threat that worries
intelligence officials as established smuggling routes and
violent gangs can easily facilitate terrorists entry into this
country for the right price.
Today's hearing addresses this critical portion of our
immigration system because no country can effectively carry out
its sovereign duty to enforce its laws unless it can
effectively apprehend those who should be arrested and
efficiently removed from the country. We must scrutinize these
issues.
Unfortunately, there are several recent decisions from the
United States Supreme Court that may require Congress to act
again in this area. These decisions that we will talk about
some during this hearing require the Government to release
aliens who have been ordered removed from our streets. I intend
to ask our witnesses today about the types of aliens ordered
removed who have been released into our streets.
Also, I fear that today's hearing will amply demonstrate
that we face serious problems with our deportation system that
impede the enforcement of our final orders of deportation,
particularly as it relates to those who have committed crimes
in our country while guests. Simply put, our Nation's process
for deporting individuals who are not lawfully present is over-
litigated and under-resourced over-lawyered and under-equipped.
We must find a better way of removal because if we are not
serious about deporting those who have exhausted all of the
remedies and who are under final orders of deportation, we can
never claim to be serious about reform.
Additionally, we will examine various related issues
associated with detention of those here illegally.
Specifically, today's witnesses will address detention bed
space limitations, alternatives to detention, the difficulty of
locating those who abscond, and other alternatives such as
using MOUs, memorandums of understanding, with State and local
law enforcement, like those already being used in Alabama and
Florida.
We will discuss the investigative priorities of interior
immigration agents. I hope to hear how they intend to meet
their priorities and how they intend to balance them with the
approximately 6,000 ICE agents available to address the
approximately 10 to 12 million people here illegally. This
obvious disparity in numbers is something that we must address.
Our interior enforcement personnel are highly dedicated and
professional. They face monumental tasks and carry out their
assignments diligently. I hope to hear today how Homeland
Security plans to enhance their enforcement efforts and what
impediments the Justice Department has identified to
effectively removing those ordered removed.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
With that, I would like to turn the floor over to my
colleague, the Chairman of the Terrorism Subcommittee, Senator
Kyl, for any comments he might wish to make.
OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA
Chairman Kyl. Thank you, Senator Cornyn.
The purpose of this hearing has been well outlined by
Senator Cornyn. We are two Subcommittees today conducting this
hearing, not just one, and so we focus both on the terrorism
and homeland security implications as well as the immigration
implications of the policies that you are going to be
discussing today. So we welcome you to this hearing and look
forward to your testimony.
As was noted, we are going to examine the challenges facing
the Department of Homeland Security as it goes about the
business of apprehending and detaining and removing illegal
immigrants from the interior of our country. We will also
examine the challenges facing the Department of Justice as it
litigates immigration cases in the Federal courts.
Let me take this opportunity first to thank you, Mr. Cohn.
You know that we appreciate--many Members of Congress I can
certainly speak for appreciate the work that the Department of
Justice does to defend and maintain the integrity of the
immigration laws in our courts. The Office of Immigration
Litigation and the U.S. Attorney's Offices throughout the
country have kept the quality of representation high even as
the number of immigration cases has soared.
We are also conscious of the fact that you are doing this
job nevertheless faced with constraints on resources, as
Senator Cornyn noted, and we would like to learn from you
today, among other things, what Congress might be able to do to
assist you in this area, in addition to taking action on the
legislative changes that were discussed in your written
statement.
And, Mr. Cerda, I also want to congratulate you and the
Department of Homeland Security on the work that Detention and
Removal Operations is doing to capture and hold and remove the
illegal aliens from our country. I am impressed with the long-
range strategic vision that Immigration and Customs Enforcement
has formulated for dealing with the absconders and criminal
fugitives who are at large in the United States. And I am
especially pleased with the efforts to track and locate the
sexual predators who would prey on our children. I understand
you have located some 5,000 of them. We need to find every one
of them and deport them back where they came from.
We are aware of the budget and resource problems that ICE
is having, and, again, we would like to have you be as frank as
possible in this hearing in advising of what you need to fully
enforce our immigration laws from the point of apprehension to
the point of removal.
Also, I would like to welcome the second panel, welcome
David Venturella from the U.S. Investigative Services and Lee
Gelernt from the American Civil Liberties Union. We are also
looking forward to your testimony today.
And, again, Chairman Cornyn, thank you for co-chairing this
hearing.
Chairman Cornyn. Well, thank you, Senator Kyl.
As you can see, we have got a number of our colleagues here
with us indicating the nature of the level of interest.
Chairman Kyl. And as we speak, here comes Senator Kennedy.
I was going to mention Senator Feinstein will be delayed.
Chairman Cornyn. I understand Senator Feinstein may be
delayed. She is the co-Chair of the Subcommittee along with
Senator Kyl. But, to the ranking member of the Immigration,
Border Security and Citizenship Subcommittee, your timing could
not have been better, Senator Kennedy, and the floor is yours,
sir.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Well, thank you very much, Mr. Chairman,
and I thank our witnesses. I apologize. There is a lot going on
today here in the Senate, as always.
So I thank you, Mr. Chairman, for calling this important
hearing on immigration enforcement. The current enforcement has
reached an all-time high in terms of deportation. In fiscal
year 2004, we deported nearly 160,000 people. The plenary power
doctrine gives Congress the authority to deport non-citizens,
including long-time lawful permanent residents. But Congress
has a responsibility as well, and so do the courts, to see that
non-citizens receive due process and that the executive branch
is fairly and justly implementing the law. Yet some current
proposals would curtail the judicial review for immigrants, and
any limitations to rights guaranteed under the Constitution
deserve careful and deliberate consideration. Habeas corpus is
a bedrock principle of U.S. law, reaching back to the Magna
Carta, six centuries before our Constitution. It declared that
no free man shall be taken, imprisoned, or in any other way
destroyed except by the lawful judgment of his peers or by the
law of the land; to no one will we sell, to no one will we deny
or delay right or justice.
Habeas corpus is a fundamental principle of American
justice. It is called the Great Writ for a reason: because it
means justice for people wrongly detained. We owe it to future
generations not to undermine the values embedded in our
Nation's great legal tradition.
These basic principles and values are under siege by some
today and have led to a rise in anti-immigrant activism. Last
month, a group of college students in Texas held a ``Catch an
Illegal Immigrant Day.'' In our previous Subcommittee hearing,
we were told that vigilantes, as President Bush called them,
had convened to watch the Southern border and catch immigrants
all month. One rancher said he would shoot every single one of
them if he had his way. Obviously, vigilante justice violates
everything America stands for, and we cannot be content with
rhetoric alone against it.
I am looking forward to hearing testimony today on the
detention of asylum seekers, men and women who have stood
alone, often a great personal cost, against hostile governments
for fundamental principles such as freedom of speech and
religious liberty. Yet these courageous persons are often
imprisoned in U.S. jails when they reach our shores. A recent
report by the bipartisan Commission on International Religious
Freedom criticized the incarceration used to detain asylum
seekers because they are often held alongside criminals in
stark conditions, under constant surveillance, 24-hour lights,
moved from place to place using shackles. The Commission
recommended specific detention standards to improve the plight
of asylum seekers and proposed an Office of Refugee
Coordinator.
I look forward to today's hearing on all these issues and
working with my colleagues to deal with the abuses.
I thank the Chair.
Chairman Cornyn. Thank you very much, Senator Kennedy.
The former Chairman of the full Senate Judiciary Committee,
Senator Hatch, is going to have to leave here very quickly and
has asked to say just a few words by way of an opening
statement, and I cannot ever--well, rarely could I--say no to
him. But, I am going to use the better part of discretion and
say please go ahead.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman that means a
lot to me, and I appreciate your courtesy to me.
Let me first say that I am pleased that important
immigration issues are being discussed in both the House and
the Senate, and I suppose we do need to look at comprehensive
immigration review and reform. It is absolutely imperative for
us to reinforce our borders and, I think, fix a broken
immigration system. So I look forward to this ongoing process.
But let me just say this: Last session, I sponsored FILA,
the Fairness in Immigration Litigation Act, because it makes no
sense for criminal aliens to get added rights. Now, I plan to
reintroduce this bill soon. FILA would reform the judicial
review process and streamline criminal alien appeals. The bill
levels the playing field between foreign-born nationals who
have been convicted of crimes and those who have not. FILA
would also curtail the rising number of immigration-related
habeas corpus claims filed in the Federal courts since 1996.
Now, I understand that some groups opposed my Fairness in
Litigation Act last year that the bill eliminated judicial
review, and they have continued that claim as attempts are
being made to streamline immigration appeals this year.
My bill does allow constitutional claims and legal
questions to be reviewed in the courts of appeals, and I know
the House included a similar provision in their bill last year,
which was H.R. 418, under their Section 105.
I just wanted to make that point because I think it is
important that we get on top of some of these issues while
trying to be fair and trying to do what is right. And I intend
to continue to work to try and get on top of these issues, and
I really appreciate the efforts of you, Mr. Chairman, Chairman
Kyl, Senator Kennedy, and others in trying to resolve the many
difficult problems that we have in immigration. And I just want
to personally thank you for giving me this little bit of time.
Chairman Cornyn. As Senator Kyl noted, we are pleased to
have a distinguished panel with us today, and I will introduce
the first panel and ask them to--
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Mr. Chairman? Mr. Chairman, might I be
recognized for a minute? I just want to make a point of
clarification. And I will not enforce this rule, but we
received two testimonies last night by staff memo which I would
like to put in the record, one at 6:11 p.m. and one at 6:38
p.m., to be prepared for this testimony.
The Committee rules say that the testimony has to be
available 24 hours prior to the Committee hearing, and although
I will not enforce that, I will say to the witnesses that you
are not a bit busier than we are. And you have known about this
hearing for a period of time, and for us not to have your
testimony on a timely basis limits our ability to, number one,
correctly understand your positions, but also to ask pertinent
and appropriate questions. And so I would just put on notice
that I will ask for an enforcement of the rule on any further
hearings. I have told that to Senator Specter as well on the
general Committee, because I want to be able to be prepared.
And I think it is inappropriate that, if we are going to have
the rules, we are not going to enforce them because the very
purpose of the rule is to allow us to do our jobs more
effectively and more efficiently.
And, with that, I would yield back.
Chairman Cornyn. Thank you, Senator Coburn. Your desire to
be well prepared for these hearings is commendable, in my view.
Jonathan Cohn is Deputy Assistant Attorney General. He
graduated from the University of Pennsylvania in 1994 and then
Harvard Law School in 1997. He clerked for Judge O'Scannlain on
the Ninth Circuit and for Justice Clarence Thomas on the United
States Supreme Court. He has worked for the law firms of
Wachtell, Lipton, Rosen & Katz and Sidley Austin Brown & Wood.
He is now the Deputy Assistant Attorney General for the Civil
Division with the Department of Justice and is in charge of
their Office of Immigration Litigation.
Joining Mr. Cohn on our first panel is Victor Cerda. He is
the Director of Detention and Removal for the Department of
Homeland Security. He was a former chief of staff for the
Immigration and Naturalization Service Commissioner James
Ziegler and brings a vast amount of immigration experience to
the table.
The Committees welcome both of you, and we would be pleased
to hear your statements. I would like for you to confine those
to 5 minutes, and that will give us plenty of chance then to
follow up with appropriate questions. And, of course, your
written statements will be made part of the record, without
objection, so you do not need to worry that we do not have that
before us.
With that, Mr. Cohn, we would be glad to hear your opening
statement.
STATEMENT OF JONATHAN COHN, DEPUTY ASSISTANT ATTORNEY GENERAL,
CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Cohn. Thank you, Chairman Cornyn, Chairman Kyl, and
members of the Subcommittees, for inviting me to testify today.
At the Department of Justice, we are confronted with an
overwhelming flood tide of immigration cases, and we are faced
with the significant flaws that current exist in our Nation's
immigration laws. Today I would like to talk about two of these
flaws, both of which an be fixed legislatively.
The first of these flaws concerns the judicial review of
criminal aliens' removal orders, namely, the St. Cyr problem.
Since 1961, Congress has consistently provided that only the
courts of appeals and not the district courts may review
deportation and removal orders. This is important because it
limits the amount of time an alien can delay his removal
through seeking judicial review. He gets one layer of review
and not two.
Moreover, district court review is unnecessary because the
alien has already typically received multiple levels of
administrative review before the case even reaches Federal
court.
In 1996, Congress attempted to streamline judicial review
for criminal aliens even further. Indeed, Congress tried to
eliminate judicial review of their removal orders entirely.
Nonetheless, despite Congress' efforts to limit judicial
review, the Supreme Court expanded it just 5 years later.
In INS v. St. Cyr, the Supreme Court held that criminal
aliens, whom Congress decided should have no judicial review,
are actually entitled to more review than they had before and
more review than non-crimina aliens received. Specifically, the
Court held that as a statutory matter, criminal aliens could
seek habeas review of their removal orders. With habeas review,
the criminal alien gets review in district court and on appeal
in the courts of appeals--two levels, not one.
The result of St. Cyr is that Congress's 1996 reforms are
turned on their head. The beneficiaries of this include child
molesters, like Oswaldo Calderon-Terrazas, who was convicted of
two counts of sexual abuse for drugging and then raping a 15-
year-old girl. Calderon-Terrazas was able to delay his removal
for 2 years by filing a habeas action in district court and
then an appeal to the Fifth Circuit. To prevent this from
happening in the future, Congress should pass Section 105 of
H.R. 418, the REAL ID bill, which would clarify that judicial
review of removal orders is available solely in the courts of
appeals and now in the district courts. Quite significantly,
unlike the 1996 reforms, this bill does not attempt to
eliminate judicial review, but simply restores such review to
its former settled forum, back in 1961 to 1996, the courts of
appeals.
Moreover, the bill complies with St. Cyr, in which the
Court said in no uncertain terms that Congress could, without
raising any constitutional questions, provide an adequate
substitute to habeas review through the courts of appeals.
Accordingly, I encourage Congress to enact this reform.
The second flaw I would like to discuss is equally
troubling. Sometimes it is difficult for the executive branch
to remove terrorists or criminal aliens who present a danger to
the community. When an alien cannot be removed, there are
basically two options for the United States: one, release him
into the American public; or, two, detain him.
Before 1996, there was a 6-month limit on the detention of
deportable aliens who are ordered removed. Thus, after 6
months, the alien had to be released irrespective of the danger
he posed. Recognizing this problem, in 1996 Congress eliminated
the 6-month limitation. But 5 years later, however, the Supreme
Court held, as a matter of statutory construction, that the 6-
month limit still generally remained, and this past term the
Supreme Court extended this holding to cover aliens who are
stopped at the border.
Among the aliens that will benefit are criminals who have
murdered their wives, molested young children, and brutally
raped several women. To give an example, Carlos Rojas-Fritze
sodomized, raped, beat, and robbed a stranger in a public
restroom and called it ``an act of love.'' I understand that
DHS and the Public Health Service are currently working on his
conditional release into the American public on account of
Zadvydas and Suarez-Martinez, the Supreme Court decisions.
Another example is Tuan Thai, who has raped, tortured, and
terrorized women and vowed to repeat his grisly acts. Among
other crimes, Mr. Thai repeatedly raped his friend's girlfriend
over the course of several months, beginning while she was 6
months' pregnant. He then monitored her phone calls and
threatened to poison her with cocaine and harm her other
children if she tried to kick him out of the house. He also
threatened to beat up his own girlfriend slowly until she died.
And he later threatened to kill his immigration judge and
prosecutor after his release. Needless to say, Tuan Thai should
not be released, and I respectfully urge Congress to pass a law
permitting the continued detention of aliens like Tuan Thai.
Thank you.
[The prepared statement of Mr. Cohn appears as a submission
for the record.]
Chairman Cornyn. Thanks, Mr. Cohn.
Mr. Cerda, we would be glad to hear from you.
STATEMENT OF VICTOR X. CERDA, ACTING DIRECTOR OF DETENTION AND
REMOVAL OPERATIONS, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.
Mr. Cerda. Good afternoon, Chairman Cornyn, Chairman Kyl,
and distinguished members of the Committee. My name is Victor
Cerda, and I am the Acting Director for Detention and Removal
Operations at the Bureau of Immigration and Customs
Enforcement. It is my privilege to appear before you today to
discuss DRO's mission to promote public safety and national
security.
The role that DRO plays is recognized in our strategic
plan, ``Endgame,'' which seeks to reach a point where for every
order of removal issues, a removal is effectuated. While we
have a significant road ahead to achieve these results, I am
pleased to say that our recent accomplishments indicate that we
are moving in the right direction.
Unlike the prior INS organizational structure, DRO now is a
distinct law enforcement division in ICE that reports directly
to the Assistant Secretary. The DRO field chain of command was
also improved with the creation of direct reporting lines from
the field offices to headquarters management. These DHS changes
recognize the importance of the DRO role in enhancing the
integrity of our immigration system and supporting the
Department's national security mission.
DRO's core mission is the apprehension, detention, and
removal of deportable aliens, the management of non-detained
aliens, and the enforcement of removal orders. DRO is also
implementing an aggressive national fugitive operation program
that targets fugitive aliens who have ignored judicial orders
of removal. Another part of the enhanced DRO role in
immigration enforcement is the Criminal Alien Program and the
strategic approach of targeting criminal aliens regardless of
their location or stage of prosecution.
I would now like to share with you some of ICE's
accomplishments showing the positive direction in which we are
moving and describe some initiatives implemented in order to
achieve better enforcement results.
Record removal numbers. In fiscal year 2004, ICE removed
160,000 aliens from the United States, including 84,000
criminal aliens. Since the creation of DHS, ICE has removed
approximately 302,000 aliens.
Record number of fugitive apprehensions. In fiscal year
2004, ICE had 16 fugitive operations teams deployed across the
country. These teams apprehended a record 11,000 fugitive
aliens with final orders of removal, an increase of 62 percent
from the prior fiscal year. Moreover, 458 of these fugitives
were individuals with records of sexual offenses against
children--a high priority for ICE under Operation Predator.
Alternatives to detention. With the support of Congress, we
are exploring alternatives to detention--innovative approaches
that may allow us to released those aliens who do not pose
national security or public safety risk--while at the same time
ensuring that they comply with court hearing dates and removal
orders. We have deployed electronic bracelet capabilities and
telephonic voice recognition systems to all our field offices,
and the Intensive Supervision Alien Program piloted in eight
cities is out there with the goal of reversing the historically
abysmal rates of compliance with hearing dates and removal
orders.
We are also trying to improve the removal process by
focusing on enhanced performance. For example, one of the
biggest delays we face in removing aliens is the timely
issuance of travel documents from foreign governments. We are
working aggressively with the Department of State and foreign
embassies to identify ways to facilitate the issuance of travel
documents. Similarly, we have centralized the process for
arranging country clearances for escort removals, are working
closely with the Justice Prisoner Alien Transportation System,
and continue to work with charter and commercial airline
companies to facilitate removal scheduling.
Providing timely information to State and local law
enforcement. Operating 24 hours a day, the Law Enforcement
Support Center provides local, State, and Federal law
enforcement agencies with timely immigration status and
information on aliens suspected or convicted of criminal
activity. In fiscal year 2004, the LESC responded to more than
667,000 requests for information.
Worksite enforcement. ICE worksite enforcement focuses on
unauthorized workers employed in sensitive security sites.
Operation Tarmac specifically targets employers who hire
unauthorized workers and give them access to sensitive airport
areas. ICE has conducted investigations at 196 airports,
audited nearly 6,000 businesses, obtained 775 criminal
indictments, and arrested over 1,000 unauthorized alien workers
as part of this operation. We are doing similar worksite
enforcement operations for nuclear facilities, defense
facilities, shipyards, and transportation sites.
These are just a few of ICE's immigration enforcement
accomplishments. We should be proud of our rich tradition of
being a Nation of immigrants. I personally am a product of that
rich tradition. At the same time, the United States has a rich
tradition of respect for the rule of law and the integrity of
our legal system. Respect for immigration laws should not be
the exception.
I thank you for the opportunity to testify before the
Committee. I request my statement to be included in the record,
and I look forward to your questions.
[The prepared statement of Mr. Cerda appears as a
submission for the record.]
Chairman Cornyn. Thank you, Mr. Cerda.
We will start a 5-minute round of questions and go until we
exhaust the questions or exhaust the panel, whichever comes
first.
Let me ask first, Mr. Cohn, the St. Cyr decision by the
United States Supreme Court, you said, provides criminal aliens
more judicial review than aliens who have not committed a
crime. Is that your position?
Mr. Cohn. That is absolutely correct, Senator Cornyn.
Chairman Cornyn. And is that because the Court said that
unless Congress was more explicit, there would be presumed not
only to be review at the court of appeals, but there would be
access to the writ of habeas corpus.
Mr. Cohn. That is exactly right, Senator.
Chairman Cornyn. Is that something in your view that, if
Congress so chose to make sure that criminal aliens did not
have more review than those who were here and who have not
committed crimes, that we can do so by explicit statutory
language?
Mr. Cohn. That is exactly right. Indeed, the Supreme Court
invited Congress to do so or expressly allowed it to do so in
Footnote 38 of the St. Cyr opinion. The Supreme Court expressly
said that review can be removed from district court into the
courts of appeals.
Chairman Cornyn. You talked about two other decisions. One
is the Zadvydas decision and the other, I believe, is the
Suarez-Martinez decision, which the Court said that you can
only detain aliens for 6 months and then you must release them,
even if their country of origin is unwilling to accept them
back, simply release them into the general population in the
United States.
What sort of aliens are being released from detention
because of these decisions?
Mr. Cohn. Senator Cornyn, the aliens that are being
released include murderers, rapists, and child molesters.
On the eve of Suarez-Martinez, there were roughly 920
aliens, dangerous criminal aliens, in detention who have since
been released or who are in the process of being released.
These aliens include Mr. Carlos Rojas-Fritze, the person who
thought rape was an act of love.
It also includes aliens like Lourdes Gallo-Labrada who
literally set her boyfriend on fire.
It also includes Guillermo Perez-Aguillar who repeatedly
committed sex crimes against children.
These are among the aliens that have to be released as a
result of the Supreme Court's decisions in Zadvydas and Suarez-
Martinez.
Chairman Cornyn. Well, you mentioned cases where people
have committed crimes, and very serious crimes, but we are not
just talking about people who committed crimes; we are talking
about suspected terrorists too. One thing clear in Zadvydas is
that it is constitutional to hold a small segment of
particularly dangerous individuals such as suspected
terrorists. Does the Department of Justice believe that Section
236(a)'s indefinite detention of terrorists is constitutional
in light of the discussion in Zadvydas?
Mr. Cohn. We do, Senator. We believe that 236(a) is
constitutional because Zadvydas expressly said--first of all,
Zadvydas was not a constitutional holding. We should be clear
about that. Zadvydas simply was a statutory holding. It
addressed the scope of the currently existing statute
241(a)(6). The Supreme Court avoided the constitutional issues.
It has no constitutional holding.
Moreover, on the issue of terrorism and national security,
as you noted very correctly, the Supreme Court said that
special circumstances, including terrorism, are ones in which
indefinite detention could be permissible. We believe that
236(a) is constitutionally permissible.
Chairman Cornyn. And just to clarify, when you say the
Court avoided the constitutional issue and dealt with the
statutory issue, that is a traditional approach by a Court to
deal with the statutory problem that Congress could fix, as
opposed to a constitutional defect that Congress cannot fix. Is
that right?
Mr. Cohn. That is absolutely correct, Senator.
Chairman Cornyn. Does the Department of Justice believe
that Congress can constitutionally authorize extended detention
of suspected terrorists, serious foreign policy threats, and
others deemed a danger to the community as opposed to those who
are apprehended merely for, let's say, a visa violation?
Mr. Cohn. We do, Senator. First of all, again, as noted,
Zadvydas and Suarez-Martinez left the door open because they
did not resolve the constitutional issue. Moreover, roughly 50
years ago, in the Mazai case, the Supreme Court held that
indefinite detention is permissible with respect to aliens who
are stopped at the border and excluded.
With respect to those who made an entry, the calculus is a
little bit different because these aliens do have greater due
process rights. But it is important to note in this context we
are only dealing with aliens who have been ordered removed. And
at that point, those who have made an entry are on equal
footing with those who have not made an entry. The Fifth
Circuit and the Tenth Circuit have so recognized, and they
upheld the constitutionality of indefinite detention.
Moreover, it is important to note they were talking only
about a very narrow class of aliens, as you pointed out, aliens
who are a significant danger to the national security, foreign
policy, or the community--a very narrow, targeted group of
aliens, and that explains why it is constitutional.
Furthermore, we endorse the procedural protections that
Congress provided in 236(a) and that ensures that all aliens
receive the process to which they are due.
Chairman Cornyn. Thank you, Mr. Cohn. I did not mean to
just pick on you. I have some questions for Mr. Cerda, but my
time is up here for the first round. So, let me turn the floor
over to Senator Kennedy for any questions he may have.
Senator Kennedy. Thank you very much, and this has been
interesting and it is obviously enormously troublesome.
All of these individuals have actually been to jail, have
they? They were all sentenced? Were they all sentenced under
the old guidelines, Mr. Cohn?
Mr. Cohn. Yes, Senator. The aliens in the Zadvydas context
have all served time in jail. That is correct.
Senator Kennedy. Let me just ask both of you about the
vigilantes, whether the Justice Department and the Department
of Homeland Security has a position on those. Do you have a
position? Is it written up? Will you provide it for us? I know
this is not directly probably in the Civil Division, and in
Homeland Security you probably have something. If not, can you
provide it for us? Or if you do know it, can you state it?
Mr. Cohn. I am sorry, Senator--
Senator Kennedy. On vigilantes, what exactly is the
Department of Justice position with regard to vigilantes now on
the border, on the Arizona border?
Mr. Cohn. At this point, Senator, I probably should not
comment on that because the scope of my testimony has been
limited to the issues of St. Cyr and Zadvydas.
Senator Kennedy. Mr. Cerda?
Mr. Cerda. Senator, I am not in a position either to
comment on that. It really does not impact the Detention and
Removal Operations side.
Senator Kennedy. Well, you have responsibility of detention
and removal, and as the Acting Director of Detention and
Removal for Homeland Security, you don't have any position?
Because the vigilantes are obviously involved in either--I
guess some detention and some removal on the border. But that
does not come across your plate?
Mr. Cerda. I am not aware of any specifics to that,
Senator, so I am not prepared to comment.
Senator Kennedy. All right. Well, if you can find out if
there is one, I would be glad to have it, because it would seem
to me that the Homeland Security would have at least some
position on this since it is directly related to people who are
at the border. And there have been reports of vigilantes
tripping detection devices for border crossers and other kinds
of activities which are directly related to Homeland Security.
So I just was interested to see whether you have some--if there
is a policy or if you want to submit it, we would be glad to
have it. I have not seen one yet from the Department, but if
you have it, we would like to have it.
Mr. Cerda. I will follow up with our Congressional Office,
Senator.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Cornyn. Senator Kyl?
Chairman Kyl. Thank you. I might mention to the Senator
from Massachusetts, as you may imagine, our newspapers and
other media in Arizona report extensively on this every day,
and at least to my knowledge, the reporting has only suggest
one case where there was a detention by one of these so-called
Minutemen who was released and the immigrant was treated
appropriately by the Border Patrol. So I don't think there are
any situations like that, at least that have been reported
publicly in the media. But when the whole exercise is over
with, I think it would be a useful exercise to have somebody
official report on it so that we do have a good handle on what
is going on.
Senator Kennedy. If the Senator would just yield, what I
was just asking is what is the current position with regard to
the groups. I mean, do they have a policy position with regards
to it and what is the policy? You know, what was the policy?
That is what I was interested in finding out from Homeland
Security and from the Justice Department. I appreciate Mr. Cohn
is here on a very specialized issue, and this has been
enormously interesting. And I think it is asking a lot to ask
you for a detailed position on it, but there has to be at least
some reaction from the Justice Department in terms of the
Border Patrol and the rest. There must be some policy kinds of
issues or questions, and I was just interested in what the
Department's was. But I do not want to delay Mr. Cohn or other
questions on the matters that are before the Committee.
Chairman Kyl. And again, in response to that, I know there
were a lot of arrangements worked out between both the Cochise
County sheriff's department and the Border Patrol and these
beforehand to try to prevent improper activities. And, again,
it is appropriate to understand what our Government's policies
in that regard are.
Senator Kennedy. Thank you.
Chairman Kyl. Perhaps, Mr. Cohn, you could--well, let me
get Mr. Cerda since he has not been given a question yet here.
How many of the illegal immigrants released into the interior
of the United States each year are due to lack of detention
space to keep them detained?
Mr. Cerda. The DRO in Homeland Security and ICE is budgeted
for 19,400 beds. Last year, we had over 200,000 admissions,
initial admissions in our detention situations, and the
population rotates through there, whether it is through
deportations, through bonding, through granting of relief,
terminations, voluntary departures, different scenarios. So on
a constant basis, we are at 100-percent capacity.
We make decisions daily on a case, national security,
criminal aliens, mandatory detainees. Those remain and will
continue to be our priority cases.
Chairman Kyl. So you have to then make decisions as to
which ones to release because you do not have space even though
they should be detained versus those who are a higher priority
to keep in detention. Is that correct?
Mr. Cerda. On the non-mandatory cases where there is
discretion, we will look at them, and we have our
prioritization list out there
Chairman Kyl. Can you give us any sense in terms of
quantification of maybe even a percentage or something like
that, where on a weekly or a monthly basis you have had to make
that determination and release people who otherwise would have
been detained had you the bed space?
Mr. Cerda. I would not be able to tell you on a daily basis
where we are with that. What I can say is right now we have in
the non-detained document, which are individuals who are in
some form of phase in proceedings, immigration proceedings, not
detained, our non-detained document right now just recently
reach over a million. So we have--
Chairman Kyl. Over a million people?
Mr. Cerda. Correct. So we have a million individuals who
are in some phase of immigration proceedings at this point in
time who are not in custody, released on a variety of
conditions. Some are under alternatives to detention. Some are
on bond, having posted bond. Some of them are released to
relatives in the United States.
Chairman Kyl. I am sure you do not have any statistics
right here today as to how many people show up versus how many
skip their bond.
Mr. Cerda. Historically, we have a situation where you have
two areas of concern. The first one is individuals who fail to
appear for their hearings with the immigration judge, and
historically that has been in general in the range of 30
percent who are not detained at the times of their hearing, 30
percent fail to appear, essentially become in absentia cases,
fugitives. Subsequent to that, of those that do appear for
hearings, the other point of critical concern here is that of
those ordered removed, you are looking at 80, 85 percent
failing to appear and comply with removal orders.
Chairman Kyl. So for those ordered to be removed, 80 to 85
percent do not comply.
Mr. Cerda. That is our historical data.
Chairman Kyl. And I presume we do not know where they are.
Mr. Cerda. Those will be leading into the fugitive
situation that we have. We are trying to address it
aggressively, but right now at this time we have a large
fugitive alien population.
Chairman Kyl. Well, what would it take--and perhaps you
need to get back to us in writing on this. But what would it
take both to end this catch-and-release program in terms of the
detention space? And, secondly, what would it take in terms of
manpower or other requirements that you would have to
successfully apprehend those who do skip out?
Mr. Cerda. We can get back on that, and I think, again,
what we are trying to approach it is not only solely a
situation of additional detention beds but the resources. You
have judges involved; you have attorneys involved. And we are
also looking at alternatives to detention that are very
effective and actually do raise compliance that we are looking
at right now.
Chairman Kyl. Mr. Cohn, let me just ask you one question
here before my time is up. What kind of difficulties do you
have in removing violent criminals to their countries of
origin? And, specifically, I have reference to the possibility
that some countries decline to repatriate their own nationals
who have committed violent crimes here in the United States.
Who are they and what is being done to get those countries to
take their people back?
Mr. Cohn. Thank you, Senator Kyl. You are absolutely
correct. There are certain countries that do refuse to
repatriate their own nationals. One of those countries is
Vietnam, which is why Tuan Thai is still in this country.
We also have difficulty repatriating aliens back to Cuba,
and we also have difficulty with other countries, for example,
Somalia. Although we are lawfully permitted to remove aliens to
Somalia, we encounter practical difficulties.
Now, these are not legal hurdles in the U.S. law that we
are talking about. These are practical difficulties,
international realities that prohibit us in certain cases from
removing an alien back to his home country.
As for what steps should be taken, we would like to work
with the State Department and Homeland Security and the rest of
the administration to remove these hurdles. But the hurdles we
are talking about in these cases, again, are not hurdles within
the INA but, rather, practicalities and international
realities.
Chairman Kyl. Thank you.
Chairman Cornyn. Senator Sessions?
Senator Sessions. Just to follow up, Mr. Cerda, on the 80,
85 percent that don't comply with a deportation order, one of
the things that is trouble to me is that those who are not
complying who become fugitives in violation of a court order
are not readily placed in the Crime Information Center, so that
if they are arrested for DUI or petty larceny or a serious
offense or speeding and they are identified, they run their
identification, it is not coming back to the local police
officer that this person has absconded.
What is the status of cutting down--or putting these names
in the center, in the Information Center, so it is available to
police officers all over America? And let me just say for those
who may not understand how fugitives are apprehended in this
country. Fugitives are apprehended more often than not by some
police officer in some town who stopped them for speeding and
they ran an NCI check on them, and it becomes a positive and
they hold them to find out what the charges are. We do not have
thousands of police officers going out and looking for these
people who are absconding. They get picked up in the normal
course of business. But they cannot be identified if we are not
putting them in the system.
So can you tell me how you are doing with that? I have
raised it in other hearings, and that is the reason I raise it
with you.
Mr. Cerda. I think we have different tracks available to
the State and locals on cooperation. One is the entry of the
names into NCIC. I don't want to--I hesitate in terms of the
number. It has slipped my mind. But I can get back to you in
terms of the actual numbers we have entered into NCIC.
Senator Sessions. Well, as I recall the numbers, of those
400,000 that are listed as absconders, we had about 15,000 in
the system, the last report I got, which is a terribly bad
thing. What about somebody today who absconds today? Do their
names immediately go in the system?
Mr. Cerda. No, they don't go immediately into the system.
Senator Sessions. Why not? That would be my question.
Mr. Cerda. Right now I think the last number I had was
substantially larger than the 15,000. What we have done is
prioritize the cases we enter into NCIC. We have entered all
cases that we can enter into NCIC with respect to criminal
aliens.
Senator Sessions. I believe the number is now 38,000, is
the latest figure I have that have been entered in there. Maybe
it has gone up some.
Mr. Cerda. I will follow up on that, but it is a priority
to get it in there. We have entered all the criminal aliens--
Senator Sessions. If you get arrested--I hate to interrupt
you, but people need to understand. If you get arrested for DUI
in any town in America and you don't show up for court, your
name goes in the system that day. And if you get picked up
somewhere else in another town in another State, they are going
to know you are a fugitive. Why are these cases not being put
in the system?
Mr. Cerda. Again, one, you have the numbers that are out
there, over 400,000 cases. We do have to prioritize those
numbers. In addition, though, we do have available to all State
and locals 24/7 the Law Enforcement Support Center, which can
be contacted, where they will get a determination of alienage
to include somebody who has been ordered deported. That can be
done today.
In addition to that, we do have an immigration violators
file in NCIC, a sub-file in NCIC that has additional access
that they can do queries directly with the Law Enforcement
Support Center. That exists 24/7 available to the State and
locals. In that sense, we do have that access, that
connectivity, and they are an important partner for us.
Senator Sessions. I have checked with people that I know in
law enforcement for many years. They don't know this. They
don't have this phone number out on their vehicle that they
know who to call. They don't even know there is another system.
Everybody else that they deal with, if they are a fugitive, are
in the National Crime Information Center. I have asked the
question. It is not a matter of technology. The system can
handle the extra names. It just would strike me that you are
not serious about it. I hate to say that. But if you were
serious about the absconders, Mr. Cerda, wouldn't the first
thing you would do would be to put their names in the system?
Mr. Cerda. I would agree in that approach. It is a multiple
approach. There is not one single solution. We are aggressively
with the fugitive ops teams--last year, we had significant
numbers, using intelligence, using the local law enforcement.
This year, again, we are ahead of those numbers. We are taking
this issue of fugitive aliens seriously. We are taking an
aggressive approach, and we will continue to enter into NCIC.
We will continue to promote. And if it is an issue locally in
your area that they are not cognizant of the service, we will
be happy to go out there and promote it even more aggressively.
Senator Sessions. Well, they are not knowledgeable
anywhere. They are just not knowledgeable. The system is not
working. If you want it to work, you will put the names in
NCIC. If you don't want it to work, you won't. Right now I
assume you do not want it to work because you are not putting
names in the system. How can I conclude otherwise?
Mr. Cerda. We did have 667,000 officers out there last year
who did make the query who were knowledgeable of the system.
Clearly, that is not the goal. We are going to continue to grow
that. This is something serious.
Senator Sessions. There were that many queries made, and a
lot of those were Federal queries. I assume the average police
officer in the average town does not know about this system. I
have to believe that is so.
Mr. Cerda. We will continue to promote it, sir, and get the
word out.
Senator Sessions. My time is up, Mr. Chairman.
Senator Coburn. Just a rhetorical question. What difference
does it make if most of the names are not in it? If the names
are not in it, it does not matter whether they know about the
system.
Senator Sessions. There is another system that ICE has
that--
Senator Coburn. Where they have to call a phone number when
they are in the midst of doing this rather than go on the
computer in their car.
Senator Sessions. Right. That is correct. So he is saying
that it is in that system, but as a practical matter, it is not
available to the officer routinely, and that is why they are
not picking them up.
Senator Coburn. Actually, I want to ask a tougher question.
Will you give this Committee an answer on what you are going to
do with the 450,000 names and when you are going to put them
into the system?
Mr. Cerda. We will give you what numbers are--how much we
have entered so far.
Senator Coburn. No, no. What is your plan to get the
numbers into the system so that you can use it?
Mr. Cerda. We will give you our plan to that.
Senator Coburn. I want to ask a question. You know, it is
somewhat humorous to me that the group of Minutemen are called
vigilantes, and I know our President has called them that. But
it just means to me he does not get it. The fact is this
country is extremely worried about our border. And everything
that each of you have talked about today will never be solved
until we control our border. And I don't know how you are not
depressed every day, because you can do your job thoroughly,
but it is just going to multiply every year that we don't
control the border.
I would like to ask each of you, what is your understanding
of our border control policy in this country? And the fact that
we don't have a border control policy that is effective, how
does it impact your job?
Mr. Cerda. Well, clearly, it is a significant challenge
that we have out there. In my perspective, Detention and
Removal Operations, we are the supporting unit for the
arresting agents out there. The numbers are significant, and as
our numbers are showing, we are hitting historical records
throughout. Plenty of business, plenty of clients out there to
process through the system, and, you know, frustrated. I am not
going to be here in a position to say we are going to throw our
hands up and surrender over here. We are not. We are going to
continue to tackle the process, the problems.
Senator Coburn. Do you send information back up the food
chain so that they say, you know, we are working here trying to
do this, but if you don't make the necessary movements in terms
of Border Patrol, enhance technology on the border, that you
are not going to allow us ever to be able to do our job? Does
that information head back up?
Mr. Cerda. We have to work hand in hand with the Border
Patrol, with the investigators, with the inspectors at the
airport. The ABC approach that we have out there, that is an
integrated approach to try to stem one of the weaknesses on the
border. That process there is not an individual Border Patrol.
It is a DHS effort there. We are contributing beds. We are
taking a strong deterrence posture on detention in that area.
The Border Patrol is adding the resources and the investigation
side is adding additional resources.
Senator Coburn. But it is not discouraging to you that
there is not the political will in this country right now to
control the border so that you can do your job, and instead of
77 percent of everyone convicted commits another crime in this
country? That is not discouraging to you because you deport
them and they come right back?
Mr. Cerda. I view it as we are Nation of laws and we are
going to enforce it regardless of what the situation is. If we
fail to continue to pursue the situation, to take the challenge
on, then, yes, we do have a problem. The men and women that I
work with at Detention and Removal Operations, they are
committed. They want to get the job done.
Senator Coburn. I am not questioning the commitment. You
are missing my point. I am questioning the commitment of
whether or not you are telling the people up above you, You
have got to give the border if we are ever going to be able to
do our job? Is that communication going in that direction?
Mr. Cerda. Yes, we are communicating.
Senator Coburn. All right. Thank you.
Mr. Cohn?
Mr. Cohn. Senator Coburn, I am very glad you raised this
issue. I agree with you. there are significant critical flaws
in our Nation's immigration laws, and this has tremendously
impacted my job and the job of people in my office.
Just to give you an example, in 2001 there were 1,600
petition for review cases. In 2003, there are close to 8,500.
In 2004, there are over 10,000.
Now, I am not going to say this increase is due solely to
the increased number of illegal immigrants, but it is due
partially to that. The people in my office are working
extremely hard. They work extremely hard every single day. The
average lawyer in my office writes a brief in the appellate
courts every single week. They work so hard because there are a
lot of illegal aliens in this country and there are a lot of
court cases. So I am very, very glad you raised this issue.
Senator Coburn. We also do have a law. It is illegal to
come here illegally, and we need to enforce that law first
before we start thinking about enforcing the rest of the laws,
because we will never win until we enforce that first and
utmost law: our border security and integrity. And I would just
hope that as you all struggle through--and I praise your work.
You are doing the right thing--that you will send it up the
chain. I mean, we are spending money down here that we could
have not spent had we had the border secured in the first
place. Then we can have a national debate on what we do with
illegal aliens that are already here that are not criminals.
But we are never going to have that debate until we control the
border, and I would just hope that you would recognize your job
gets made harder every day that that border stays porous.
And I am not against the idea that the people that have
gone to Arizona--they are trying to make a point. The Federal
Government is not doing its job in terms of border integrity,
not only in terms of the number of illegal aliens that come but
also in terms of the number of terrorists. And I believe their
point is well made.
Thank you, Mr. Chairman.
Chairman Cornyn. Thank you, Senator Coburn.
Let me say, gentlemen, that the purpose of these hearings
and to hopefully--well, my purpose in these hearings, and I
think Senator Kyl shares this--is to document the challenges
that we face in this country when it comes to our immigration
system and hopefully provide all of the Members of Congress,
not just in the Senate but across the Government and across
America, the information that we need in order to tackle the
big challenges that you are out there confronting on the front
line every day. And we admire and respect your willingness to
take on this tough job, but we are trying to figure out how we
can add resources, we can be smarter about addressing it in a
way that makes some of these problems easier.
But, let me talk to you, Mr. Cerda, about a problem that we
have in Texas. Of course, we have a big, long border with
Mexico, and, of course, just talking about people who committed
crimes; we are talking about suspected terrorists. People come
up through southern Mexico and from Central America and other
places around the world. So, not only do we have Central
American and Mexican immigrants, we have what are sometimes
called ``other than Mexicans.'' OTMs is the name, as you know.
But, we have a policy right now, because of the lack of
detention facilities, that some have called ``catch and
release.'' And you know what I am talking about, don't you? And
as I understand it, the policy is once the Border Patrol
detains an individual, they will check for their criminal
background, and unless they meet certain criteria, their policy
is to release them based upon their promise to come back for a
hearing at a later date, at which time it will be determined
whether they should be deported. Is that correct?
Mr. Cerda. The policy when we apprehend somebody, the
arresting officers, one, we are taking clearly--you look at the
three key priorities that we have: national security cases;
mandatory detainees, aliens who are under our laws required to
be detained, mostly because of criminal activity; and then also
just anybody else who does not fit that but has a community
safety, criminal activity potential out there.
Right now we are--in our overall national population, those
three areas right there consume about 80 percent, 75 to 80
percent of our National bed space capacity.
Chairman Cornyn. And your bed space capacity is right
around 20,000 now?
Mr. Cerda. Nineteen thousand four.
Chairman Cornyn. Nineteen thousand beds, and for the most
part, other than those top three categories you mentioned, and
perhaps whoever else you can detain that you consider a flight
risk, a special flight risk, basically the policy is to let
people go based on their promise to come back.
Mr. Cerda. Based on those three factors, you know, slicing
up the pie in terms of detention bed space, you have a sliver
for non-mandatory cases where at that point the arresting
officer looks at the case and makes a determination of
conditions for release.
Chairman Cornyn. For example, in Harlingen, Texas, the Rio
Grande Valley, 85 percent of those people who are released
never show back up again. Are you familiar with that figure?
Mr. Cerda. I am not familiar with that figure.
Chairman Cornyn. And you said that nationwide it is about
30 percent?
Mr. Cerda. There are two points of departure in the
process, two key points.
One is individuals that are released, given their notice to
appear to go into their hearings. At that point you are looking
at 30 percent that do not appear for their hearings at some
point and are ordered deported in absentia.
Subsequent to that, you have those that, while released,
they are still going through the process, who are ultimately
ordered removed. At that point 85 percent fail to comply.
So those are the two key points that we are trying to
address with the alternatives to detention potentials that
exist out there.
Chairman Cornyn. And the reason why--and nationwide that
figure is 30 percent, but as I pointed out, in places like
Texas--and I don't know what it is in Arizona--places where we
have massive immigration across our borders, the number is much
higher. And the reason we are seeing that happen is primarily
because of a lack of detention space, bed space, where these
people might be detained pending their deportation hearing. Is
that correct?
Mr. Cerda. You essentially have a certain amount of beds,
and you have to prioritize within them and operate within them,
so correct, you have 19,400 every day, we are at capacity, and
decisions have to be made.
Chairman Cornyn. And part of those decisions mean releasing
not just economic immigrants, what I would call people who are
looking for work from Mexico or Central America, but literally
people who fly from China into countries in South America, who
come up Central America, fall in that category of OTMs.
Correct?
Mr. Cerda. You do have those cases, yes.
Chairman Cornyn. As well as people from Middle East
countries, some of whom are areas of special concern to our
country because of anti-terrorism concerns. Is that right?
Mr. Cerda. I think we approach those cases not based on--
you know, you run the security checks on all these individuals.
You could have a serious security situation of somebody from
the People's Republic of China or Taiwan, and that individual
would be detained as part of it. Similarly, somebody from the
Middle East--I don't think we draw a broad brush over the
country, but clearly every one of those we look at is a
potential vulnerability, is a potential national security risk,
and it is a situation where we have to identify them, run the
checks, hope the intelligence, if there is any that is
negative, is available, and based on that make determinations
of detention or release. We have got to scrub the cases.
Chairman Cornyn. Just so we have the picture correct, we
know how tough a job the Border Patrol has. We don't know how
many people they actually detain and how many people get
through. But they detain, they release the overwhelming
majority of those because they do not fall into those high-risk
categories that you have talked about. And, of those released,
in order to come back for their hearing, a substantial
percentage of them never show up.
Mr. Cerda. At least 30 percent up front fail to show up for
their hearing.
Chairman Cornyn. And that is across the Nation, correct?
Mr. Cerda. Correct.
Chairman Cornyn. But, I suggest to you that that number
would be a lot higher in places like Texas, Arizona,
California, and other southwestern border States.
Let me just finish this up, just to complete the thought,
and then I will turn it over to Senator Coburn or other
colleagues.
You mentioned that 85 percent of those who fail to show up
for their deportation hearing after 30 days, 85 percent of them
never show up and they become absconders. Is that right?
Mr. Cerda. Correct.
Chairman Cornyn. That is, they basically have forfeited any
right they have to pursue any additional legal proceedings, and
they are essentially under a final order of deportation.
Mr. Cerda. Correct.
Chairman Cornyn. And we currently have about 465,000 people
who are absconders in the United States, and we simply don't
know where they are. Is that right?
Mr. Cerda. You have a population of 465,000 fugitive aliens
out there.
Chairman Cornyn. And about 80,000 of those or so are
criminal absconders, correct? Somewhere around there?
Mr. Cerda. That was the original number that came out. I
could not give you the latest. Again, you are looking at
statistics throughout there when we were trying to figure out
the population. This is something that has been historical.
Chairman Cornyn. I am trying to get a general--
Mr. Cerda. But you do have criminal aliens included in that
population.
Chairman Cornyn. A substantial component of that, maybe 20
percent, somewhere around that, are criminals who have
committed crimes, who are simply on the run. They are in the
United States, and we don't have the people, we don't have the
resources to find them and to make sure that they are deported
according to law. Is that right?
Mr. Cerda. It is a significant challenge.
Chairman Cornyn. You bet it is, and I think part of what we
are trying to do is to understand better how big that challenge
really is so we can determine whether we need to provide
additional resources, which I think we do, so that you can do
that job even better.
Senator Coburn?
Senator Coburn. Yes, just a couple of short questions.
Since there are about 70,000 on the NCIS list and we have
got, I think your testimony was, now 460,000 absconders.
Mr. Cerda. Correct.
Senator Coburn. It would seem to me, since you all are so
stretched and you only have 20,000 beds or 19,400 beds, that
might be a motivation for not having them on the list.
Mr. Cerda. Absolutely not. We have got to step back and
recognize that this 465,000 has grown through the decades.
Post-9/11 we brought some attention to it, and for the first
time, with your support, we have teams dedicated to this. And
we are being very aggressive. It is a Nation of laws, and these
individuals have had their due process. They have had their
hearings, they have had their right to claim benefits, and they
have been ordered deported and now have decided to flout the
law.
I think you look at it, too, though, in terms of it is not
a resource issue but also you have got to recognize the fact
that what are the options for these individuals when ordered
deported if released. And as I put it, one of the challenges is
they could either comply with us and our request to appear for
removal processing and get deported, or alternatively, they can
make a run for it and see how long it takes for us to catch
them; and when we do catch them, the penalty again is they will
be deported. But during that period--
Senator Coburn. So there is no downside for them.
Mr. Cerda. And that makes the challenge even larger there.
Senator Coburn. With 19,400 beds, about $20,000 a year a
bed?
Mr. Cerda. Right now we are looking at $90 a day, and I
believe a yearly rate, roughly over $30,000.
Senator Coburn. So $30,000 times 19,000, that is half a
billion dollars a year that we have got for beds. Wouldn't it
be smarter to put the half a billion dollars down on the border
and stop the inflow so we don't need the beds? Rather than give
more resources here, wouldn't it be smarter to put the
resources on the border to control the border? Again, I am
telling you, the guys in Arizona get it. We are fixing the
wrong problem. The problem is the border.
I will let you go with that. One last thing. Low-priority
aliens include those who have committed fraud while applying
for immigration benefits with DHS, correct?
Mr. Cerda. You have it in a prioritization list, yes.
Senator Coburn. So why instead of letting these aliens go,
why aren't they immediately turned over to DOJ for document
fraud prosecution?
Mr. Cerda. You are looking at a situation that if they do
come into our custody and prosecution is declined, that is
where they fall. But we are aggressively referring re-entry
cases, individuals who have been multiple re-entries, for
prosecution, document fraud, benefit fraud. Again, we view
these as vulnerabilities to national security.
Senator Coburn. Well, I want to thank both our witnesses.
You can see from my questioning there is a lot of frustration
going on for the people that I represent in Oklahoma and people
throughout this country. And I hope it goes up the chain to the
administration. The rule of law does need to be enforced, and
the first one is the border.
Thank you.
Chairman Cornyn. Mr. Cohn, I just have one more question,
and then unless there are other questions of this panel, we
will move on to the second panel.
In St. Cyr, the Supreme Court decision we were talking
about earlier, the Supreme Court wrote that, ``A construction
that would entirely preclude review of a pure question of law
by any court would give rise to substantial constitutional
questions.''
Does the Department of Justice believe that H.R. 418 and
last year's S. 2443, streamlining or eliminating judicial
review, avoid those substantial constitutional questions? If
so, why do you believe that? And, have there been others who
also agree with that position?
Mr. Cohn. Senator Cornyn, thank you for raising that issue.
The answer to your question is the two bills you referred to--
the REAL ID Act and the FILA bill--both of those do avoid all
the constitutional concerns because both bills contain the same
language. In both bills, it is expressly very clear that all
aliens, including criminal aliens, can go to circuit court, the
circuit courts of appeals, and they can present their
constitutional claims and their pure questions of law. Every
alien can do that. Every single alien has his day in court.
Every criminal alien has a day in court. That day in court
would be in the courts of appeals. Pure questions of law, every
single one of them, and constitutional claims can be presented.
So both bills you referred to are in compliance with the
Supreme Court's words in St. Cyr. And we are not the only ones
who believe that. During the St. Cyr litigation, there was a
companion case, Calcano-Martinez, and the ACLU represented the
petitioner in that case. And they said the same thing. They
said that review in the courts of appeals was constitutionally
permissible. And that is precisely what the REAL ID bill does.
It puts review in the courts of appeals.
At oral argument, the ACLU was pressed as to what that
scope of review had to entail, and the ACLU lawyer made clear
that the review had to include simply what was traditionally
historically available on habeas, and that includes
constitutional claims and questions of law. And the lawyer made
clear what he meant by questions of law. It was construction of
statutes, interpretations of statutes. That is what has to be
reviewed. And that is reviewable under H.R. 418. All pure
questions of law and constitutional claims are reviewable.
Moreover, I read the ACLU's statement for the next hearing,
and the two concerns they presented really are not legitimate
concerns, with all due respect. They raise one issue about
mixed questions of law. They refer to them as applications of
law. A mixed question of law is in effect a question with two
parts. There is the legal part of the application and the
factual part. The legal part, of course, is reviewable, like
all questions of law under this H.R. 418. The factual part
would not be reviewable, but, again, it is clear that under the
historical scope of habeas review, factual questions are not
reviewable. And the ACLU agreed to that in Calcano-Martinez.
To give an example, let's look at St. Cyr itself. In St.
Cyr, the question concerned the retroactivity of a provision
that abolished a type of relief called 212(c) relief. The
question was whether that abolition applied to aliens who pled
guilty prior to IIRIRA's effective date. The Supreme Court held
the abolition did not apply, and that is the legal principle.
So if another case were to come around in which an alien
said, ``I pled guilty prior to IIRIRA's effective date, I am
still entitled to 212(c) relief,'' there would be a factual
question and a legal question. The factual question is when did
he plead guilty. That is not reviewable because factual
questions are not reviewable. The legal question, however,
embedded within the application, is: Does he have a right to
212(c) relief if he pled guilty after IIRIRA's effective date?
If a court were to misapply the holding in St. Cyr and say
he is not eligible, even though he pled guilty prior to the
effective date, that would be a misapplication of law, and that
would be reviewable under both bills you mentioned because it
is a question of law.
Finally, they mentioned the issue about needing a backstop,
and I agree there needs to be a backstop. But that backstop, of
course, does not have to be in district court. It need not be
in habeas. The backstop could simply be in the courts of
appeals.
Now, I disagree with them that there is a need to amend the
language because all the concerns they raised can be addressed
simply through the pre-existing motion to reopen procedure. A
denial of the motion to reopen can be challenged in the courts
of appeals. However, to the extent anyone were to disagree with
that, the solution is simply to amend 242(b)(1) to permit
particular claims in the courts of appeals. The solution is not
to give a backstop in habeas because that would propagate the
pre-existing problem we have now of criminal aliens having
twice the review of non-criminal aliens.
Chairman Cornyn. Thank you, Mr. Cohn.
Colleagues, we are ready to move to the next panel unless
anyone has any--
Chairman Kyl. I have got a couple of questions for the
record.
Chairman Cornyn. Very good. Senator Kyl has some questions
for the record.
Senator Sessions, if you have some questions?
Senator Sessions. Mr. Cohn, I have recently done
considerable research and we have worked on a legal article on
the question of the authority of local law enforcement officers
to make arrests of those in violation of Federal immigration
laws. As I read the authority, only the Ninth Circuit has held
explicitly, and that in dicta, not as part of its holding, that
violation of a misdemeanor immigration law, such as an
overstay, does not give local law enforcement officers a legal
basis, if they have one under State law, to detain someone; and
that with regard to the other offenses, such as illegal entry
and violations and crimes in the country and that sort of
thing, State officers have the authority to do so.
In fact, the other circuits, I believe two or three other
circuits, imply that the State and local law enforcement
officers have that with regard even to the misdemeanor overstay
cases--or the civil, not misdemeanor, civil overstay cases.
What thoughts do you have on that?
Mr. Cohn. Senator Sessions, I am glad you raise this issue
of local law enforcement. It is an extremely serious issue. I
wish I could say more about that, but the Department is still
developing its position internally on this issue. I would like
to share some thoughts on it, but at this point I have to
refrain and not get ahead of other people in my Department on
that issue.
Senator Sessions. Well, all I would say is this, Mr.
Chairman: As a result of one small portion of the law in which
one circuit, the Ninth, has indicated States may not have
authority, that has been bandied about the country to try to
convince police officers and mayors that their officers have no
authority in this regard. But they have inherent authority
under all the circuits, including the Ninth, to arrest and
detain someone found to be in violation of the Federal
immigration criminal law, felony or misdemeanor, for that
matter. And as a result, some departments out of confusion
basically are not participating in a way that they would like
to participate. I don't think we need to be mandating local law
enforcement to participate, but it is a very huge issue as to
whether or not our Federal Government welcomes, encourages, and
is appreciative of them when they apprehend people who are
violating our laws and turn them over to the Feds for
processing from there on.
I know you are ready to go to the next panel.
Senator Coburn. I just had one little gift. I am going to
send you both ``Groundhog Day,'' Punxsutawney Phil. You guys
have got to be reliving that every day, and I think in that
movie, he has got it easy compared to you.
Senator Sessions. And I would say that the troops out
there, the officers on the ground are doing a good job, but we
are not--this system is not working. You talk to my Alabama
police officers, as I do on a routine basis, and they tell me
if they apprehend someone they find to be here illegally, they
don't even bother to call the ICE agents. They are not coming
to get them. There was just an article in the Washington Times
yesterday, I believe, saying 13 had been arrested and released,
80 percent I assume won't show back up, or any detention order
that may occur. So it is undermining public respect here, and
we have got to ask you, Mr. Cerda and Mr. Cohn, to work on it,
to have some integrity here.
I was a Federal prosecutor for 15 years, and it is just
painful to me to see the Federal Government make a mockery of
enforcement of this situation. We cannot continue. We have got
to have integrity.
Chairman Cornyn. Thank you, Senator Sessions.
And thanks to you, Mr. Cohn and Mr. Cerda, for being here
today with us.
We will now move to our second panel of witnesses, and we
are pleased to have a distinguished second panel as well today,
and I want to thank them for their appearance. If you don't
mind, I will start introducing you as you make your way.
On this panel we will hear from David Venturella. Mr.
Venturella is currently employed by U.S. Investigations
Services. He is a former Acting Director of Detention and
Removal for the Department of Homeland Security and has spent
close to two decades serving our country in the immigration
arena.
Joining Mr. Venturella on this panel is Lee Gelernt, Senior
Staff Counsel, Immigrants' Rights Project, American Civil
Liberties Union. It is significant to note that Mr. Gelernt was
also co-counsel in the St. Cyr case, so perhaps he will have
some comments about that, which we have already talked about
earlier.
Let me extend a welcome to both of you, and thank you for
being here with us. Please don't forget to turn on your
microphone, like some of us do from time to time, when you
begin to speak, and let me ask Mr. Venturella if you will start
with your opening statement. We will ask each of you to make 5-
minute opening statements, and then we will follow with some
questions. Thank you again for being here.
STATEMENT OF DAVID VENTURELLA, U.S. INVESTIGATIONS SERVICES,
WASHINGTON, D.C.
Mr. Venturella. Mr. Chairman, I would like to thank you and
the other members of the Subcommittee for the opportunity to
testify today. I am honored to appear before you to discuss the
matter at hand.
Prior to leaving my Federal post last year, I was
responsible for enforcing the immigration and naturalization
laws of this country for 18 years. I began my law enforcement
career as a deportation officer with the former Immigration and
Naturalization Service and ended my career as the Acting
Director of Detention and Removal Operations with U.S.
Immigration and Customs Enforcement. In that capacity, I was in
charge of overseeing the detention and removal efforts of
criminal and illegal aliens who ere in the United States.
Now, on a personal note, I am also the son of an immigrant,
and I understand why so many people have risked their lives,
leaving their families and homes and everything they know to
come to the United States to pursue the American dream. For
nearly 230 years, this country has welcomed immigrants from all
walks of life, and the contributions of these immigrants have
built this great Nation to be what it is today--a free Nation.
However, while we are known worldwide as a shining beacon
of light for the countless immigrants who come to our shores,
we are also known as a Nation where law and justice prevail.
Without strict and fair enforcement of our immigration
statutes, our country will remain vulnerable to the threats
that arise from individuals who willingly exploit gaps in our
immigration system.
The accomplishments of the men and women responsible for
enforcing our Nation's laws in the former INS and now in the
Department of Homeland Security are extraordinary. Yet, despite
their heroic efforts, the number of illegal immigrants living
in the United States and coming across our borders continues to
grow.
Why have our country's efforts in enforcing immigration
laws fallen short of expectations after 9/11, even though
Congress has provided significant increases to the budgets of
the agencies responsible for carrying out this important
function? The answer is simple. Our law enforcement agencies
dedicated to this mission have done little to develop a
cohesive and comprehensive immigration enforcement strategy.
Instead of viewing the issue holistically, what you see are
a number of independent programs and independent efforts
competing for resources and delivering mixed results. While
immigration is a complex, emotional, and political issue, the
inability to understand the importance of linking the
enforcement functions of the immigration bureaus to carry out a
common mission and strategy is baffling.
Immigration enforcement must be viewed as a continuum.
Effective enforcement of our immigration laws will not be
achieved until all parts of the continuum are balanced and are
in sync with one another.
U.S. Border Patrol agents risk their lives every day, only
to see their efforts wasted because of a lack of detention
space to hold those they have arrested for crossing our borders
illegally.
Moreover, less than 1,000 deportation officers are asked to
manage and supervise hundreds of thousands of aliens every year
who are in removal proceedings, and then those same dedicated
officers are asked to locate those same aliens after years of
lengthy appeals and stays resulting in a removal rate of about
60 percent and a growing fugitive population of 400,000 and
counting.
Now, these are very real examples of when the enforcement
continuum is out of sync or imbalanced. If the goal is to deter
individuals from violating our immigration laws, we are not
achieving that goal because these individuals suffer no
consequence for their unlawful actions.
Now, this is not just a DHS problem. DHS is not the only
Department responsible for immigration enforcement. The
Department of State and the Department of Justice have
significant and vital roles in immigration enforcement. The
removal of an alien from the United States is the endgame of
immigration enforcement.
Yet our foreign neighbors and allies are refusing to accept
their citizens or nationals for deportation. Although in the
past couple of years there has been some success in negotiating
with countries on individual cases, the State Department is
reluctant to leverage the offending country's foreign or
economic interest with the U.S. to resolve the repatriation
stalemate. Very little has been accomplished when repatriation
of foreign nationals is handled as an isolated issue.
Eventually, thousands of aliens, in particular criminal aliens,
have been released back into our communities because of their
countries' unwillingness to accept them and our own
unwillingness to sanction the offending countries. In order for
the Federal Government to achieve effective immigration
enforcement, the State Department must change their position on
how to deal with this issue.
The Department of Justice, which oversees the Executive
Office of Immigration Review, has looked to improve their
performance, and while I applaud their effort to improve the
efficiency of the hearing process, I can recall significant
delays imposed by immigration judges as well as cases pending
many years before the Board of Immigration Appeals. And these
lengthy delays have contributed to the growing number of
fugitive aliens living in the United States who are currently
being sought after for removal.
Any improvement to reduce unnecessary delays in the courts
and in the removal process will, without infringing on the due
process of individuals, always serve to enhance the
Government's ability to achieve effective and efficient
enforcement of our immigration laws.
I am very appreciative of the Committee's efforts to
highlight this I municipality issue, and I thank you for the
opportunity to testify before you today. I look forward to
answering any questions you may have for me at this time.
[The prepared statement of Mr. Venturella appears as a
submission for the record.]
Chairman Cornyn. Thank you very much.
Mr. Gelernt?
STATEMENT OF LEE GELERNT, SENIOR STAFF COUNSEL, IMMIGRANTS'
RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON,
D.C.
Mr. Gelernt. Thank you. Chairman Cornyn, Chairman Kyl,
Senator Coburn, thank you for the opportunity to testify today.
My testimony will focus solely on Federal court review of
deportation orders and the issues raised in the Supreme Court
decision in St. Cyr. That decision made clear that immigrants,
including those with past criminal convictions, are entitled to
meaningful court review. At a minimum, the Court stressed they
are entitled to habeas corpus review, protected by the
Suspension Clause of the Constitution.
I want to make two basic points in summarizing my
testimony. The first point is I want to stress the complexity
and far-reaching importance of the issues raised by the St. Cyr
case. Those issues transcend the immigration field and go to
the very heart of who we are as a country, a country which can
now count more than two centuries of unwavering commitment to
the rule of law and to the Great Writ of Habeas Corpus.
In light of the complexity and historic importance of the
issues, any legislation by the Congress in this area will
necessarily raise profound constitutional questions as well as
difficult questions of immigration policy and court
administration. We thus respectfully urge Congress to give any
new proposals in this area the most careful and deliberate
consideration and to dismiss out of hand any proposals that
would eliminate habeas corpus for immigrants facing
deportation. No Congress--no Congress in the history of this
country--has ever eliminated habeas corpus for immigrants
facing deportation, and this Congress should likewise reject
any proposal that would take that extraordinary step.
As the Court made clear in St. Cyr, immigrants are entitled
by the Constitution to meaningful review.
My second point is that, in our view, the various attacks
that have been leveled against St. Cyr decision are misplaced.
Insofar as there are concerns about the increased number of
cases in the Federal courts, those concerns are, in our view,
more appropriately directed at the Attorney General's decision
in 2002 to eliminate any meaningful administrative appellate
review by the Board of Immigration Appeals, the BIA, a decision
which has shifted much of the burden to the courts and left the
courts with the task of providing the only real check on
erroneous decisions by immigration judges.
Let me conclude with a more general point about the role of
the courts in the immigration system, namely, that oversight is
critical to the proper functioning of a fair system. Judicial
review may seem at times like a technical abstract concept to
many people, but in practice, the courts play an indispensable
role in enforcing the rule of law and preventing grave
instances of injustice that would otherwise profoundly and
inalterably change the lives of countless immigrant families
and their children. At the end of the day, it is critical that
the lives of these children and individuals not be lost in a
blur of aggregate statistics and abstract policy arguments.
Jerry Arias-Agramonte, for example, is someone who
benefited from having court review in his case by habeas
corpus. He came lawfully to this country as a teenager in 1967.
His parents were U.S. citizens. He has six U.S. citizen
children, one of whom served in the military. In 1977, he pled
guilty to a drug offense in the fifth degree, for which he
received a sentence of probation. Nearly 20 years later, on the
basis of this conviction for which he received only probation,
he was placed into removal proceedings and subject to mandatory
deportation. He filed a habeas petition and a court found that
his deportation was, in fact, unlawful. But for the existence
of habeas review, but for the existence of the courts, he would
have been deported from a country in which he had lived for
more than 30 years and likely been separated from his U.S.
citizen family.
Significantly, for many immigrants it is the very right to
go before a neutral judge that in their minds differentiates
the United States from other countries that lack same
commitment to the rule of law. They feel viscerally what
Justice Frankfurter observed long ago--that ``[t]he history of
American freedom is, in no small measure, the history of
procedure.'' And no procedure has been more integral to
preserving freedom in this country over the past 200 years than
the Great Writ of Habeas Corpus.
Finally, let me say the ACLU, of course, recognizes the
authority of Congress to regulate immigration and entry into
the United States. Our point today is that the process for
determining who is subject to removal must be fair and
efficient to ensure that immigrants who have a right to remain
are not deported erroneously and that the removal system is
subject to checks and balances.
Thank you.
[The prepared statement of Mr. Gelernt appears as a
submission for the record.]
Chairman Cornyn. Thank you very much. We will now proceed
with a round of questioning.
Mr. Gelernt, let me start with you, please. As I understand
it, a non-criminal alien case would originally go before an
immigration judge who would determine his/her rights and would
provide that initial level of judicial review. If the case went
against the alien, then she/he would have a right to appeal to
the Board of Immigration Appeals. And then, finally, they would
have a right to appeal to the court of appeals. Is that
correct, sir?
Mr. Gelernt. Yes, Senator.
Chairman Cornyn. But what the St. Cyr case dealt with was
an additional review, and that is by virtue of a writ of habeas
corpus. Is that correct? So, if I understood Mr. Cohn's
argument earlier, he said that the criminal aliens get an
additional layer of review that non-criminal aliens don't, and
by that I understood him to mean that habeas corpus review, in
addition to the review before an immigration judge, Board of
Immigration Appeals judge, and then the court of appeals, that
that would be more than a non-criminal alien would get. Did I
understand that correctly? And, if I did, do you agree with
that?
Mr. Gelernt. Senator, I do not agree with that completely,
but there are parts of DOJ's testimony with which we do agree,
and I want to be very clear about the ACLU's position.
The habeas review that resulted after 1996 and after the
St. Cyr decision was the result of the 1996 court-stripping
provisions and the gloss DOJ put on them and the Court's
decision.
What happened in St. Cyr is that DOJ took the position that
there was no review for Mr. St. Cyr in any court, in the court
of appeals or the district court. And just to be clear, because
DOJ brought up our briefs in that case, we made it absolutely
clear to the Supreme Court that we wanted one bite at the
apple. We wanted one judicial determination. We were willing to
take that in the court of appeals or in habeas corpus.
The Supreme Court looked at it and said, well, the 1996
court-stripping provisions have cut you out of the court of
appeals; DOJ says that as well; the only thing left for you is
habeas.
Chairman Cornyn. Okay. Thank you for that clarification.
Mr. Gelernt. And--
Chairman Cornyn. I am sorry. I did not mean to cut you off.
Mr. Gelernt. I just wanted to make one additional point.
So what we are saying is that we want one judicial
determination. That judicial determination can be in the court
of appeals, but it must be a full judicial determination and
there must be a safety valve, which, as I understand DOJ's
witness to say, he understands the REAL ID Act not to have that
safety valve at the moment. He quibbles with where we would put
the safety valve, and that may be a discussion we can have. But
he does not quibble with the fact that there is no safety
valve.
Chairman Cornyn. So your position--if I am clear and you
please just tell me if I am wrong--is that as long as there is
at least one opportunity for judicial review, the ACLU would be
satisfied, whether that is in the court of appeals or by writ
of habeas corpus.
Mr. Gelernt. That is right, sir, as long as it was a full
bite at the apple in the court of appeals.
Chairman Cornyn. And that would be within Congress' power
by writing a clear statute to provide that review. That would
not be unconstitutional in your view. That would be within the
protections provided under the Constitution.
Mr. Gelernt. As long as it was a full bite at the apple in
the court of appeals, one judicial determination, and we do not
believe that you could eliminate habeas corpus as the safety
valve. But it would not--and this is the critical point here,
Senator, because I want to be clear, because it is a technical,
difficult issue. Habeas corpus needs to be there, in our view,
as the safety valve. It does not need to be the primary avenue
of review.
What happened after St. Cyr is that it became the primary
avenue, so everyone went to habeas corpus. You can channel all
review, criminal aliens and non-criminal aliens, to the court
of appeals, and that is where it would go. The only thing we
are saying habeas needs to be there for is as a safety valve
for those rare cases in which someone cannot get into the court
of appeals through no fault of their own. For example, an
unscrupulous lawyer tells them they are going to file within 30
days in the court of appeals, they do not do it, the Government
does not give them notice of the decision. So those rare cases
that cannot go to the court of appeals, but that will be seldom
used, just like it was between 1961 and 1996. So it needs to be
there as a backstop, as a safety valve, but for the most part,
every case would go to the court of appeals, criminal and non-
criminal, and that is okay with us.
Chairman Cornyn. Well, I understand what you would expect
to be the course of legal review, judicial review, but what you
are saying is you do not think under the Constitution that
Congress can eliminate habeas corpus and provide the sole
judicial review in the court of appeals. Is that right?
Mr. Gelernt. Not as a backstop. I think--
Chairman Cornyn. So, that sounds like two levels of review
to me.
Mr. Gelernt. No, because--let me be very clear, Mr.
Chairman. The alien would not get to go to habeas corpus if
they got to the court of appeals, and that means that almost
every alien will never get to go to habeas corpus. They will
not get to use habeas corpus like they do in a criminal case
where they will get review somewhere else and then go to
habeas.
If they get review in the court of appeals and the court of
appeals reviews their case, they cannot go to habeas after
that. The only time they could use habeas is if for some reason
that is not their fault they do not get in the court of
appeals. For example, they never get notice of a BIA decision,
so they do not file in the court of appeals within 30 days, and
it was not their fault that they didn't get notice. Those rare
cases where they did not get judicial review in the court of
appeals, they could go to habeas. But the vast, vast majority
of cases will go to the court of appeals. The court of appeals
will review it. They cannot then go to habeas after that.
Chairman Cornyn. Thank you.
Senator Kyl?
Chairman Kyl. Thank you, Senator Cornyn. I do appreciate
that clarification.
I gather that--and you heard the testimony about what at
least I would characterize as an unacceptably high number of
people with pretty horrible criminal backgrounds, at least as
articulated by the earlier panel. And I gather it would be your
view and ACLU's view that legislation from the Congress would
be appropriate to try to prevent them from continuing to at
least have the opportunity to prey on American citizens. Is
that correct?
Mr. Gelernt. Senator, there are proposals out there that we
have seen that we believe are constitutionally deficient. There
may be other proposals that the Congress wants to consider to
make things more efficient, and we would be happy to give you
our views on those.
We are not opposing making a system more efficient, but
what we are saying is that we cannot have a system where every
immigrant does not get meaningful judicial review.
Chairman Kyl. What I am trying--because ACLU has been an
organization over the years that has at least portrayed itself
as fighting for the little guy, making sure that people who are
not otherwise protected can get protection in our system,
certainly victims of crime frequently fall into that category.
And I would think that ACLU would be very concerned about
victims of crime. And to the extent that we have an ability
here to prevent further victimization of people in our society
by people who should be treated--or should be dealt with in our
system, I guess what I am asking is not whether you would have
any objection to it but whether you would support our trying to
find a constitutional approach to accomplish the objective.
Mr. Gelernt. Senator, we would support making the system
more efficient as long as it was constitutionally sound and
fair on both sides.
Chairman Kyl. Thank you.
Mr. Venturella, how would you characterize the security
hazards to the United States of the catch-and-release practice?
And how much does DHS know about those who are caught and
released in terms of that kind of threat?
Mr. Venturella. Well, I think very little is known about
the individuals who the Border Patrol encounters. As Mr. Cerda
outlined, there are record checks that are done, fingerprints
are captured, but many of these individuals are not in any
known databases. So I think that is a vulnerability.
Chairman Kyl. That is a problem.
Mr. Venturella. That is a problem.
Chairman Kyl. With your background at INS and DHS, you
probably have formed some views as to the likelihood that
terrorists could cross our borders and be in the interior of
the United States undetected, about our vulnerability to that
kind of a threat. How would you characterize that?
Mr. Venturella. Well, I think the vulnerability is high.
Again, because individuals can come across our borders, can
make many attempts and be successful on latter attempts, I
think it is a real high exposure. And, again, you have to look
at not the origin or the nationality of the individual, but the
fact that somebody can get through your border and then blend
into your society without very little difficulty is scary. And
so regardless if it is a terrorist or not, individuals can come
to the United States on many attempts, break in, and then live
amongst ourselves. And that I think is difficult from an
immigration enforcement perspective. You are trying to create
deterrents, and without those in place, it is very
disheartening for an individual charged with enforcing the
laws.
Chairman Kyl. Secretary Rumsfeld made the point--and it has
been picked up by others in conjunction with the review of the
9/11 tragedy--that sometimes we do not stop to think about the
fact that we do not know what we do not know. And with respect
to knowing who these maybe 11 million illegal immigrants
residing in our country today, maybe more, it is hard to know
how many of them might be involved in terrorist cells. And what
you are saying right now is it is almost impossible to know
because you do not know who has gotten across the border that
we have not been able to apprehend. Is that correct?
Mr. Venturella. That is correct.
Chairman Kyl. And that is a scary thought, and this is a
problem--speaking to something Senator Coburn was talking about
earlier--both at the border itself and the interior, because as
our first hearing noted we have to deal with these problems of
border enforcement; but as this hearing has illustrated, we
have got the result of that in the interior with inadequate
resources to identify people, to detain them, and to deal with
them appropriately under the law.
And I would just state to everybody here, including the
representatives of the ACLU, that all of us on this Committee
certainly would hope that any--well, not just hope, but that we
will ensure that any changes we make to the law will certainly
be within the rule of law and be able to sustain constitutional
challenges. That is what we are all about here, and we
appreciate the testimony that both of you have provided.
Thank you.
Chairman Cornyn. Senator Sessions?
Senator Sessions. Mr. Venturella, the Washington Times
article I referred to earlier said the Federal authorities
released 11 illegal aliens. ```The 11 passengers were processed
and released,' said the spokesman for ICE. `It is up to them
whether they come back.''' And a delegate from Fairfax County
said, ``The officer does not have authority to detain them for
a Federal offense. You get your hands on them, you have no
authority to do anything.''
Well, I think that is the perception, but it is not exactly
correct, is it? They do have authority to detain someone in
most instances unless it is prohibited by State law. Is that
correct?
Mr. Venturella. That is my understanding.
Senator Sessions. All right. But what I am hearing from my
police officers--and there are very few ICE agents in the
State--is that nobody will come and pick them up if they were
to detain them. They have been told, ``If you don't have more
than 15,'' I was told several times, ``don't bother to call
us.'' So they don't even call ICE. So that is the reality of
what is happening out there.
Would you walk through for the American people a little bit
what happens now? Someone is apprehended by a Federal
immigration officer, let's say, or referred to them by a State,
and then they process them. Do they have to be released on
bail? What happens after that?
Mr. Venturella. Well, I think as Mr. Cerda pointed out,
basically it is determined on a couple of things. One, are they
subject to mandatory detention. In most cases, if an individual
has not been convicted of a crime and has been encountered by
local law enforcement, the chances are they are not subject to
mandatory detention.
Senator Sessions. Not?
Mr. Venturella. Not subject to mandatory detention.
Senator Sessions. Okay.
Mr. Venturella. So they have discretion to release.
Senator Sessions. All right. Now let me just follow up on
that point. So if they were arrested for an armed robbery or a
crime but had not been convicted, that would not be a mandatory
detention under the immigration law. Is that right?
Mr. Venturella. If there is no conviction. However, I think
a circumstance like that would be rare. They would go through
the State or local criminal justice process.
Senator Sessions. The State may hold them on their own
bail.
Mr. Venturella. Correct.
Senator Sessions. But let's say the offense was a little
less severe. Let's say it is some sort of theft that routinely
people would not be held without bail, but they were here
illegally. As a matter of policy, would they still be released
on the immigration charge?
Mr. Venturella. They would be a high priority for release
barring any other criminal convictions.
Senator Sessions. Now, who issues the release? Do they sign
a bond or bail, or how do they get released?
Mr. Venturella. There are various forms of release.
Senator Sessions. And who is it that they go before that
issues this release order?
Mr. Venturella. It is currently a field director for the
detention and removal offices. They have the authority to
release an individual, whether it be on a monetary bond, on
their own recognizance, on orders of supervision. So there are
various ways to release an individual from custody.
Senator Sessions. And so that is how we get 400,000-plus
that have been released in some form or fashion at some stage
who did not show up, right?
Mr. Venturella. That is one way. The other way that has not
been talked about are individuals who may apply for a benefit,
an immigration benefit. They get denied that benefit, and they
are issued a notice to appear before an immigration judge.
Sometimes enforcement officials never see these
individuals. They never encounter these individuals. We talked
about the lack of cases at NCIC. There is no biographic
information on these individuals to enter into NCIC.
So, yes, some of them we do arrest, and some of them are
released by our immigration authorities. But some individuals
get into the system that we never see.
Senator Sessions. If you arrest somebody, a county judge or
a U.S. Senator, for a DUI, they take your fingerprints and they
get your identification before they let them go on bail. You do
not do that for people that are detained who are not citizens?
Mr. Venturella. People who are arrested by immigration
authorities, yes, fingerprints are taken, all of the
biometrics. But what I am saying is an individual can make a
paper application for an immigration benefit, get denied that
benefit--
Senator Sessions. Do you know how many, what percentage of
the 400,000 that is?
Mr. Venturella. A significant number. I could not give you
a percentage.
Senator Sessions. So now if they are ordered to appear to
something, what are they ordered to appear for? They are
released on bail, and they are given an order to appear for
some hearing. Who do they go before?
Mr. Venturella. They go before an administrative
immigration judge to contest the removal charges that have been
lodged against them.
Senator Sessions. And do you have trials often? Or they
just do not show up? Or do they confess? Or what routinely
happens?
Mr. Venturella. Well as Mr. Cerda pointed out, 30 percent
of the individuals do not show up for their hearing. Many
people do show up for their proceedings, but then at the end,
when there is a negative result, then they do not comply with
that order.
Senator Sessions. So that is when they--most show up for
the trial or the hearing, but after they have been found here
illegally and ordered deported, that is when they do not come
back.
Mr. Venturella. The compliance goes down.
Senator Sessions. So if you find somebody here and they are
ordered deported, they do not go that day? So you say go on out
here back into the community and we will call you back when we
want you to leave? Is that basically what it is?
Mr. Venturella. I would not oversimplify that process, but
certainly they are allowed an opportunity to remain out of
custody while the immigration service or the immigration bureau
arranges for their removal. However, if they are arrested and
they have a removal order, then their detention is mandatory
under the INA.
Senator Sessions. So just an arrest after that would have a
mandatory--
Mr. Venturella. Yes, it would trigger that.
Senator Sessions. I do not want to use up too much time. I
was about to finish this line of questioning.
And so the biggest problem then would appear to me to be
people who abscond after they have had a hearing and after
there has been an adverse finding that they are here illegally.
And normally in the process of these kind of cases, it seems to
me there would be a much higher likelihood and more appropriate
for bail to be denied then than at the beginning. Would you
agree?
Mr. Venturella. I would agree, and those individuals are
not subject to--or are not allowed to post bond in those cases.
As I said, their detention would be mandatory.
Senator Sessions. Excuse me. I am just saying on all these
routine cases where they have been detained, released, asked to
come for the hearing, they come to the hearing, and the judge
finds that they did not commit a crime but they are in
violation of immigration law and must be deported, it is after
that that we have the highest rate of absconders?
Mr. Venturella. That is correct. When I was the Acting
Director, we had initiated a pilot where we placed immigration
enforcement officers in the courtroom, so when there was a
negative finding, we could take them into custody at that
point. I don't know the results of that pilot since I have
left.
Senator Sessions. Did you have some numbers from that pilot
program?
Mr. Venturella. It was a very small pilot, but I would say
that pointed to a success because individuals were taken into
custody. Obviously, the absconder rate went down and the
removal rate went up.
Senator Sessions. Well, I do not want to go on too long,
but I just would say I think that is probably the weak link
here. Once you have had a finding that they are here illegally
by an administrative officer after some sort of hearing, that
is when we need to have some space to hold them temporarily
until they can be deported. And the system needs to be--if they
have got a defense that they can make, let them have it. If
they do not have a defense, it ought to be quickly, because
every day you detain them is a cost to the taxpayers. And the
sooner the deal is done, the better for everybody, their
families and everybody else.
Thank you, Mr. Chairman.
Chairman Cornyn. Senator Coburn?
Senator Coburn. Thank you, Mr. Chairman.
Mr. Gelernt, what does a ``full bite of the apple'' mean in
terms of the appellate court? Does that mean full appellate
court review or representative appellate court review?
Mr. Gelernt. Senator, in our view what it means is that--
and this is where I think there is another disagreement with us
and DOJ. It means that the alien will be able to raise claims
that his deportation order violates the Constitution, so-called
constitutional claims; that he can raise so-called pure
questions of law, what exactly is the legal standard in the
statute. And the third type of claim that he needs to be able
to raise, under the St. Cyr analysis, at least, is the
application of a lot of facts, so-called mixed questions of
law. And let me just flesh that out a little bit because what
we are really saying, I hear DOJ saying, is they would cut it
off after the first two, at pure constitutional claims and pure
questions of law. What that means is that the court in the
first couple of cases would announce a legal standard. But then
every time the administrative court applied that legal standard
in a case and got it wrong, applied that standard wrong, there
would be no judicial review whatsoever. So you would have
torture cases, asylum cases, any number of cases where
basically the administrative court could water down the statute
to nothing so it did not even come close to reflecting
Congressional will and there would be no review. And St. Cyr
made absolutely clear that it has to be the interpretation or
application of a statute that has been reviewable historically
in habeas. So that is what we are basically saying. So it may
seem like a technical point, but I think it practice it will be
very important.
The other thing I would just stress about it is that if the
DOJ is going to try to slice it up like this and take that
position, the line between pure questions of law and mixed
questions of law is not a bright one, it is blurry. It is going
to engender years and years of litigation on that ancillary
point and prevent the courts from simply reviewing deportation
orders that may, in fact, be sound and they could rid of the
case quicker. Instead, we are going to have another St. Cyr
situation. We are going to have 5 years of unnecessary
litigation. And I would just ask DOJ why they are insisting on
the word ``pure'' qualifying questions of law in the REAL ID
Act.
Senator Coburn. Well, they are trying to keep you busy on
that so we can do something--
Mr. Gelernt. Right, right.
Senator Coburn. I am sure that is the case.
Mr. Venturella, first of all, thank you for your years of
service to our country. I am going to ask you the same question
I asked the previous panel. You know, you have got to feel like
Bill Murray when you work over there when every day is the same
day because no matter what you--if you did your job perfectly,
without a change in the border, you would never lessen the
number, because as soon as you deport them they come back, even
though they are convicted. The only ones that do not come back
are the ones we end up incarcerating, correct?
Mr. Venturella. Correct.
Senator Coburn. That we do not deport. And I would just
say, you know, during your time, what was your experience in
terms of the feedback? You know, this is not something we
cannot do. It is something we have chosen politically not to
do. What was the response you got?
Mr. Venturella. Well, it was very frustrating. Again, as I
point out in my testimony, you did not have people looking at
this as continuum. It is a process. It is apprehension. It is
the hearing process. It is the removal process.
But they did not look at it that way. They looked at
pieces. Okay, let's put more people on the border, but not give
the Department of Justice enough attorneys or us in Detention
and Removal enough detention space.
And then at the tail end of it, where was the leverage to
remove these people? Where was the will to remove these people
from the United States?
So, yes, as I pointed out, Border Patrol agents would
arrest several people that day, just to see in that afternoon
sending them to the bus stop in Laredo and allowing them to go
north and elsewhere, it is frustrating.
Senator Coburn. You know, it is interesting. Being from
Oklahoma, a relatively small State, the compassion of the
people of America is great because we all recognize we at one
time, other than Native Americans in Oklahoma, who are
foreigners to Oklahoma because they came from the East Coast,
but we all were immigrants. And the compassion out there is
tremendous. What there is no compassion for is the ineptitude
of the Federal Government now to recognize the sequential
order, that you have to fix all parts of this. But the first
part you have to fix is to put the emphasis on where it is
coming from.
You know, everybody recognizes the contributions of the
Hispanics that are coming to this country today. They are
making wonderful contributions. But that does not displace the
fact that we are undermining our own legal system when we fail
to enforce the last. I don't know how you did what you did for
the number of years that you did it, and I look forward to
visiting you on the side just to get some insight.
Mr. Chairman, thank you.
Chairman Cornyn. Thank you, Senator Coburn.
Mr. Venturella, I want to follow up a little bit on what
Senator Sessions was asking. I believe he referred to the weak
link after people have their hearings, then 85 percent do not
show up after that. Did I understand that correctly?
Mr. Venturella. Eighty-five percent fail to comply with a
removal order.
Chairman Cornyn. A removal order, okay. Well, we have
talked about the 30-percent figure of people who do not show up
for their deportation hearing in the first place, and I know it
gets a little confusing because then we say once you had a
hearing, 85 percent do not comply with that. But, as I tried to
indicate earlier, there is a lot of variability; that that 30
percent who do not show up for the first hearing, there is a
lot of variation in the country. I mentioned that in Harlingen
approximately 85 percent do not even show up for the first
hearing. So, we never get around to being part of that group
that does not show up for the second hearing.
Senator Sessions. I think that would be more than 100
percent.
Chairman Cornyn. Surely it is not more than 100 percent,
but I am not smart enough to figure out what the percentage is.
Anyway, I think here again, sort of responding to Senator
Coburn's frustration, the purpose of this hearing I think is in
large way to look at what the problem is, and hopefully in
subsequent hearings we will look at some solutions.
But you talked about a holistic enforcement strategy, and
in your opinion, what are some of the factors that need to be
enhanced to ensure that we are not perpetuating a revolving
door policy within the Department of Homeland Security's
detention standards or the way we handle deportation after
their final orders, they have basically exhausted all of their
judicial review?
Mr. Venturella. Well, I think first and foremost you have
to have a strategy. You have to have an objective and say this
is what we want to do. And that has not been clear. In my 18
years as a Federal law enforcement officer, I did not know what
the Nation's immigration policy was, in particular in
enforcement. So I think you have to start from the beginning.
What is your strategy? What is your objective? And then execute
that.
But, again, we do need to look at this holistically. We
talk about securing our borders, but we also look beyond our
borders and how can our relationships with other countries that
are significant transit points, how can we improve that we
lessen the flow? Because people just do not come across our
borders. They come through our ports of entry at airports and
seaports as well. So we do need to expand beyond just our
borders. Then, of course, the resources provided to the Border
Patrol, provided to our litigation assets, and to our removal
assets. But we do need to look at it holistically, and it
hasn't. Only bits and pieces have been resourced, while other
programs in other areas or departments have suffered. And now
you see 400,000 absconders, now you see a million people going
through the immigration process, and you see hundreds of people
being released every day because it is out of balance.
Chairman Cornyn. Well, I appreciate that comment, and I
certainly would agree with you that that is something that has
been missing that hopefully we will achieve in the not-too-
distant future, and that relates to enforcement.
But I have also been struck, in looking at immigration, by
how much there are other issues that are intertwined in that.
For example, the economy of Mexico or Central America, if
people could find good-paying jobs there, it just stands to
reason that they would find less need, there would be less
desire to leave their native country and to come to the United
States and find that job so they can provide for their family.
And, I think we all understand that impulse, and, frankly, that
is something I think we need to address as well, perhaps even
by our trade policies.
I remember in Guatemala at the Ambassador's residence we
were talking about the Central American Free Trade Agreement,
and one gentleman from Guatemala said, ``We want CAFTA to pass
because we want to be able to have markets in the United States
for our goods and services that we have that come from here.''
He said, ``We want to export goods and services and not
people.'' That resonated with me, and it really touched on the
issue that we are dealing with here as well.
So, I certainly agree we need that coherent and holistic
enforcement strategy, but we also need to look at the economic
issues, including international trade issues. It just seems
like there is hardly an issue--certainly our international
relationships with other countries--that this does not touch
and that enforcement is just a part of it, but certainly not
the end-all, be-all.
Let me ask you, Mr. Venturella, I had the experience
recently of flying with a Border Patrol agent in Laredo, Texas,
down the Rio Grande River. You could clearly see obviously both
sides of the river, Mexico and Texas. And I was impressed as we
flew over the international bridges how orderly and relatively
smoothly we were processing people and goods that were
attempting to comply with our laws, how well that was going.
But I was also rather struck by what was happening between the
bridges. And there were cameras on large columns. There were
occasional Border Patrol agents. I asked this helicopter pilot,
this Border Patrol agent, I said, ``What do you need that you
do not have in order to do the job?'' And he expressed some of
the frustration that you did and saying that, ``Well, because
there is so much going on in the Arizona border, we have a lot
of our people and our equipment being shipped over to Arizona,
leaving us even less well equipped and outmanned in terms of
what we are able to do here.''
In your 18 years of experience in enforcing immigration
laws, what do you think we need to do to fully equip our agents
so they can do the job that we ask them to do every day and to
give them a reasonable chance of success?
Mr. Venturella. Well, it is hard for me to speak for the
Border Patrol since I was never a Border Patrol agent. But in
the capacity that I served and seeing the consequences of not
resourcing your apprehension assets as well as your removal
assets, I would think one of the most important things to look
at is ensuring that you have enough detention resources. The
reason why people come across repeatedly is because there is no
consequence for that action. They get through. If they get
arrested, chances are they will get released if they are not a
Mexican national. DHS has some priorities on specific
nationalities, but others, if there is no negative information
contained in databases, which nine times out of ten there is
not, they are released.
And so, therefore, it is worth doing this two, three, four,
five times until I am able to be released into the United
States, and then I can live in society, I can get a job, and
not have to worry about the consequences of a removal order or
consequences of immigration officers coming after me.
Again, it is the needle in the haystack. It is just
overwhelming. And the frustration that officers feel every day
is something I felt very strongly at the end of my career.
Chairman Cornyn. Well, I know we could go on for a long
time because this is a very interesting and important subject.
But, we are not going to. We are going to bring it to a close
here. I know Senator Sessions and I and others have some
important meetings on other matters before the Judiciary
Committee.
Senator Leahy has provided a statement that, of course,
will be made part of the record. There is also a statement from
MALDEF, and without objection, those will be made part of the
record.
It may be that we will think of some other questions, or
more likely our staff will help us think of some questions we
will want to submit to you in writing. So, we would ask for you
to receive those and respond. We will try not to burden you too
much with that. But, on behalf of both Subcommittees, I would
like to thank these two witnesses and our other two witnesses
for their time and testimony.
We will leave the record open until 5:00 p.m. next
Thursday, April the 21st, for members to submit additional
documents for the record and to ask questions in writing of any
of the panelists.
And with that, this--
Senator Sessions. Mr. Chairman?
Chairman Cornyn. Senator Sessions.
Senator Sessions. I would just congratulate you on having
this hearing. You are a former Supreme Court Justice, Attorney
General in Texas. You are committed to the rule of law, and I
know this is frustrating to you, as it is to me as a
prosecutor. But you also chair our Subcommittee on Immigration.
You are looking at the entire panoply of issues. You know the
human factors that are going on out there with families that
are here and have been here for long periods of time, the
economic issues that are at stake and all the complexities. And
I thank you for your leadership. I think if people would listen
to what you are saying and where you are suggesting we head, I
think they would be better off in a lot of the directions that
are being considered now.
As a matter of fact, as we go further in this debate--and I
suspect we will--I believe the suggestions you are making are
going to be more and more relied upon.
I would thank our witnesses. We are a Nation of immigrants.
My remarks dealt with enforcement today because that is what
this hearing was about, because I was a prosecutor myself in
the Federal Government for a long time, and it does pain me to
see us be so dysfunctional.
On a positive note, my mental vision is it is like we jump
across a 10-foot gap and we go 9 feet and we fall in the hole.
So many things we do--Mr. Venturella would, I think, probably
agree--if we do just a little better and go a little further,
we would close that gap, deal with that problem, and then the
next one and the next one and the next one. And I will say
this: If we do better on the border, better inside the border,
not with huge amounts of extra effort but just some better
leadership and direction and some more money, we can make more
progress than people think. Would you agree, Mr. Venturella?
Mr. Venturella. I would agree 100 percent.
Senator Sessions. This is not a hopeless deal if we all--
and we have better laws to begin with on who should come in and
in what circumstances.
So thank you for your leadership.
Chairman Cornyn. Well, thank you, Senator Sessions.
Ladies and gentlemen, with that, this hearing is adjourned.
[Whereupon, at 4:44 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Note: The responses of Mr. Cerda to questions submitted by
Senators Cornyn, Kennedy, and Kyl were not available at the
time of printing.]
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