[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
DEPARTMENT OF HOMELAND SECURITY TRANSITION: BUREAU OF IMMIGRATION AND
CUSTOMS ENFORCEMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
APRIL 10, 2003
__________
Serial No. 11
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
U.S. GOVERNMENT PRINTING OFFICE
86-409 WASHINGTON : 2004
_____________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona SHEILA JACKSON LEE, Texas
MARSHA BLACKBURN, Tennessee LINDA T. SANCHEZ, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California HOWARD L. BERMAN, California
CHRIS CANNON, Utah JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
George Fishman, Chief Counsel
Lora Ries, Counsel
Art Arthur, Full Committee Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
----------
APRIL 10, 2003
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
From the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 3
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 5
WITNESSES
The Honorable Asa Hutchinson, Under Secretary for Border and
Transportation Security, U.S. Department of Homeland Security
Oral Testimony................................................. 6
Prepared Statement............................................. 9
Mr. Mark Krikorian, Executive Director, Center for Immigration
Studies
Oral Testimony................................................. 12
Prepared Statement............................................. 15
Mr. Timothy J. Danahey, National President, Federal Law
Enforcement Officers Association
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Mr. Richard M. Stana, Director, Homeland Security and Justice,
U.S. General Accounting Office
Oral Testimony................................................. 31
Prepared Statement............................................. 33
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement by the Honorable John N. Hostettler, a
Representative in Congress From the State of Indiana, and
Chairman, Subcommittee on Immigration, Border Security, and
Claims......................................................... 55
Representative Hostettler additional questions for the record.... 56
Prepared Statement by the Honorable Sheila Jackson Lee, a
Representative in Congress From the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 57
Representative Jackson Lee letter to Representative Hostettler... 58
Representative Gekas letter to Commissioner Ziglar regarding
INS's Interior Enforcement Strategy hearing June 19, 2002...... 60
MALDEF statement for the record submitted by Representative
Sanchez........................................................ 66
Representative King response to MALDEF statement................. 72
Representative Blackburn additional questions for the record..... 75
DEPARTMENT OF HOMELAND SECURITY TRANSITION: BUREAU OF IMMIGRATION AND
CUSTOMS ENFORCEMENT
----------
THURSDAY, APRIL 10, 2003
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:03 a.m., in
Room 2237, Rayburn House Office Building, Hon. John Hostettler
[Chairman of the Subcommittee] presiding.
Mr. Hostettler. The Subcommittee will come to order.
Ms. Jackson Lee. Mr. Chairman, I have a point of order.
Mr. Hostettler. Ms. Jackson Lee is recognized for her point
of order.
Ms. Jackson Lee. Thank you, Mr. Chairman.
I object to this hearing on the grounds that the minority
was not properly notified on the change of time. If I might
read into the record:
``The Subcommittee chair shall make public announcement of
the date, place, and subject matter of any hearing to be
conducted by it on any measure or matter at least 1 week before
the commencement of that hearing. If the Chairman of the
Subcommittee, with the concurrence of the Ranking minority
Members, determines there is good cause to begin the hearing
sooner, or if the Subcommittee so determines by majority vote,
a quorum being present for the transaction of business, the
Subcommittee Chairman shall make the announcement at the
earliest possible date.''
I believe, Mr. Chairman, that there was quite a bit of
discussion yesterday about the inappropriateness of this 9 a.m.
meeting for several of us who had leadership whip meetings and
other responsibilities, and the Ranking Member specifically
indicated that this would not be an appropriate time for this
hearing.
I had to notify my minority Members late into the evening
because the word came back that this meeting was going to be
held anyhow. I think, in the spirit of comity and fairness, it
is appropriate that we work together.
This meeting time was raised at the beginning of the 108th
Congress, that this is a time that the Democratic leadership
whip organization meets, and other meetings of our Members. As
I understand it, a number of our Members are in the leadership
whip meeting at this time, and this time does not fare well for
the fairness of this Committee, which I know, Mr. Chairman,
that you are, if I might say, a distinguished gentleman who
believes very much in the fairness of the process.
For that reason, I believe that this hearing should not go
forward, inasmuch as only two procedures for deciding to
commence the hearing sooner than stated in the initial public
hearing, neither of which was followed. The first requires the
concurrence of the Ranking Member, and I did not concur. The
second requires a majority vote at a Subcommittee business
meeting. To my knowledge, no such meeting was held. So I am
presenting this letter to you.
I would have possibly been able to accept a change if I had
been notified earlier with respect to this change. I am aware
that this meeting could have been set at a later time this
afternoon. This is an important hearing and I believe that all
Members of the Committee should be able to participate. This
sudden change I don't think is in compliance with the Committee
rules or the Rules of the House.
With that, Mr. Chairman, I thank you very much for your
consideration. I would like to put this letter into the record,
please. I have a copy for you.
Mr. Hostettler. Without objection.
[The letter of Ms. Jackson Lee follows in the Appendix]
Mr. Hostettler. The Chair now recognizes himself for a
brief explanation.
As the Ranking Member knows, and as she stated, the full
Committee will be considering the Protect Act on the floor
shortly, and as the hearing was originally scheduled for 10
o'clock, it was felt by the Committee that we would be both in
this hearing and considering the Protect Act, which was not
advisable. So the decision was made to hold the meeting 1 hour
earlier in order to potentially accommodate all those,
including the witnesses who--I once again want to say, if I do
not have the opportunity to say it, that I appreciate your
being able to accommodate the earlier schedule.
It will not be the practice of this Subcommittee to change
the schedule in this fashion, but given the dynamic that we
originally scheduled--we were going to have this hearing on
March 27th, and as a result of the confirmation process with
the new Bureau of Immigration and Customs Enforcement not
having been completed in the other body, we postponed the
meeting and ultimately scheduled it at this time when we were
able to get the Under Secretary to testify.
So, once again, as the chair I want to apologize for the
change in the meeting, but I believe that circumstances,
unfortunately, dictated that we act in this manner. With that--
--
Mr. Flake. Mr. Chairman.
Mr. Hostettler. The chair recognizes the gentleman from
Arizona.
Mr. Flake. I move that the Subcommittee proceed with the
noticed hearing.
Mr. Hostettler. The question is on the motion to proceed.
All in favor will signify by saying aye. Those opposed will
signify by saying no.
Ms. Jackson Lee. Roll call, Mr. Chairman.
Mr. Chairman, may I ask, do we have a quorum?
Mr. Hostettler. Yes, we do have a quorum for the motion,
consideration of the motion.
The Clerk. Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake votes aye. Mrs. Blackburn. [No
response.] Mr. Smith----
Ms. Jackson Lee. Mr. Chairman, I have a parliamentary
inquiry.
Mr. Hostettler. The gentlelady will state her parliamentary
inquiry.
Ms. Jackson Lee. Only to inquire, that it is my
understanding that the vote is supposed to occur before the
change has occurred. I would like a ruling on that question.
Mr. Hostettler. The vote on the motion to proceed?
Ms. Jackson Lee. Yes.
Mr. Berman. Would the gentlelady yield?
Ms. Jackson Lee. I would be happy to yield.
Mr. Berman. Just on the point of order, before you can hold
the hearing, there has to be a vote.
Ms. Jackson Lee. That is my understanding.
Mr. Hostettler. The appropriate quorum is available for the
purpose of considering the motion to proceed with this hearing.
Ms. Jackson Lee. Mr. Chairman, I will offer an objection to
that. Is that the ruling of the parliamentarian or the
representative of the parliamentarian?
Mr. Hostettler. It is the ruling of the Chair.
Ms. Jackson Lee. Then I will continue to object. I will
have a continuing objection.
Mr. Hostettler. The question continues on the motion. The
yeas and nays have been ordered.
The Clerk. Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake votes aye. Mrs. Blackburn. [No
response.] Mr. Smith. [No response.] Mr. Gallegly. [No
response.] Mr. Cannon. [No response.] Mr. King. [No response.l]
Ms. Hart.
Ms. Hart. Aye.
The Clerk. Ms. Hart votes aye. Miss Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee votes no. Ms. Sachez.
[No response.] Ms. Lofgren. [No response.] Mr. Berman.
Mr. Berman. No.
The Clerk. Mr. Berman votes no. Mr. Conyers. [No response.]
Mr. Chairman.
Mr. Hostettler. Aye.
The Clerk. The Chairman votes aye.
Three ayes, two noes, Mr. Chairman.
Mr. Hostettler. Without objection, the motion to reconsider
is laid upon the table.
Last year Congress enacted the Homeland Security Act,
historic legislation creating not just a new department in the
Executive branch, but a new home for our newly structured
immigration system. Now that the immigration functions have
transferred into the Homeland Security Department, we must
closely oversee the transition to ensure that our immigration
laws are strictly enforced and that our immigration benefits
are fairly administered.
Since we are at this immigration crossroads, we have the
perfect opportunity to, as accurately as possible, determine
what resources are needed to administer and enforce our current
immigration laws. The Homeland Security Act required that the
Immigration Services Bureau receive a budget separate from that
of the Immigration Enforcement Bureau. This will help each
bureau better manage its mission and help us better determine
the proper amount of resources needed by each.
Subsequent to the Homeland Security Act being signed into
law, the new department reorganized enforcement functions into
two categories: the border and the interior. The department
combined the Customs interior enforcement functions with the
INS' Investigations, Detention and Removal, Intelligence and
the Deportation Attorney Corps to create the Bureau of
Immigration and Customs Enforcement. T he department also
combined the Customs border functions with the INS' Border
Patrol and Inspections to create the Bureau of Customs and
Border Protection, or BCBP.
This hearing focuses on the interior bureau, or ICE, it's
transition into the new Department, and its resources. For
example, in the Justice Department Inspector General's recent
report, the Immigration and Naturalization Service's removal of
aliens issued final orders, the Inspector General found that
aliens with final orders of removal who are not detained are
rarely deported. Taking a sample of nondetained aliens, the
Inspector General found that the INS removed only 13 percent of
nondetained aliens with final removal orders. Within the
sample, only 35 percent of aliens with criminal records were
removed. Finally, only 3 percent of non-detained aliens with
final removal orders who were denied asylum were removed.
The Inspector General also selected a sample of non-
detained aliens with final removal orders from countries that
the State Department has identified as sponsors of terrorism.
The Inspector General reported that the INS removed only 6
percent of this population.
In sharp contrast, 92 percent of detained aliens with final
removal orders were removed according to the Inspector General.
The INS' typical response to such findings has been that it
lacks the resources to remove more aliens with final removal
orders.
For too long, the former INS complained that it could not
adequately do its job because the agency did not receive enough
resources from Congress. That practice of buck-passing needs to
end.
In a letter dated June 21, 2002, this Subcommittee
specifically asked the former INS what resources it needed to
enforce our immigration laws, but the agency was utterly
unresponsive in its October 21st, 2002 response.
This new Department requires a new attitude. The American
people want our immigration laws enforced. We want the Bureau
of Immigration and Customs Enforcement to succeed, but it needs
to help us if we are to be of help. When we ask what resources
the agency needs to fully enforce all of our immigration laws,
we need an honest answer. Otherwise, we cannot attempt to
authorize and appropriate sufficient funds. If the new agency
continues INS' practice of being unresponsive, it should not
complain that Congress underfunds the agency. Likewise, if
Congress is told what resources are needed but falls short on
authorizing and appropriating funds to the BICE, Congress
should not complain that the agency is not adequately enforcing
the laws. More important, if Congress does not fully fund BICE,
Americans will remain unprotected from future terrorist
attacks.
The purpose of this hearing is to examine the transition of
immigration enforcement into BICE, explore the capabilities and
limitations of BICE, given the current resources available to
the agency, and determine what resources would be needed to
fully execute our immigration enforcement laws.
Without objection, the letters mentioned from the various
agencies and the Inspector General will be placed into the
record.
Mr. Hostettler. I want to thank the witnesses for being so
flexible in arriving here today.
I will now turn to the Ranking Member, the gentlelady from
Texas, Ms. Jackson Lee, for any opening remarks she may have.
Ms. Jackson Lee. Thank you, Mr. Chairman. I am going to
rely upon the request to put my entire opening statement into
the record and ask unanimous consent for such.
I also hopefully want to make clear on the record, Mr.
Chairman, with my continuing objection, that representations by
staff that the meetings will be held at all times at 9 a.m., I
would like to inquire of the Chairman if that's going to be the
policy of this Subcommittee, 9 a.m. on Thursday mornings.
Mr. Hostettler. I will work, as Chairman of the
Subcommittee, to make the meetings at a later time.
Ms. Jackson Lee. I thank the Chairman for his kindness.
Might I just simply point out, Mr. Chairman, that I will be
leaving around 9:30 and I would appreciate it if--it looks as
if the Under Secretary is the first witness, and I would like
to be able to at least hear the Under Secretary. I would like
to submit this for the record.
The only comment--and this will speak for itself--is to
specifically make note of the special registration program that
I believe is supposed to, or at least is alleged, to identify
dangerous aliens in our midst. From my perspective, and from
many of the constituents around the Nation, it substitutes
national origin, racial, religious profiling for effective law
enforcement based on intelligence and information. Again, I
believe that, as we integrate these responsibilities into the
Homeland Security Department, we make it very clear in the
Judiciary last session that immigration does not equate to
terrorism, and that there must be distinctive responsibilities
of enforcement as well as immigration services. So I'm looking
forward to hearing the testimony of the Under Secretary.
As well, Mr. Chairman, I will work with you for this to be
an effective merger, an integration, but not a denial of civil
liberties and civil rights.
With that, I ask to put my statement into the record.
Mr. Hostettler. Without objection.
[The prepared statement of Ms. Jackson Lee follows in the
Appendix]
Mr. Hostettler. Are there any other opening statements by
Members of the Subcommittee? If not, I would like to introduce
our panel of witnesses today.
The Honorable Asa Hutchinson is the Under Secretary for
Border and Transportation Security in the Department of
Homeland Security. Prior to this position, he was Administrator
of the Drug Enforcement Administration. We know him best for
his membership in the House of Representatives for three terms,
during which he served on the Judiciary Committee and the
Select Committee on Intelligence. Under Secretary Hutchinson
also practiced law in Arkansas for 21 years, when he was
appointed by President Reagan as U.S. Attorney for Western
Arkansas.
Mr. Mark Krikorian is the Executive Director of the Center
for Immigration Studies. Before joining the Center in 1995, he
held a variety of editorial and writing positions. He received
a master's degree from the Fletcher School of Law and
Diplomacy, and a bachelor's degree from Georgetown University.
He frequently testifies before Congress, has appeared on many
radio and television programs, and has published many articles.
Mr. Tim Danahey, a Special Agent with the Naval Criminal
Investigative Service, is the National President of the Federal
Law Enforcement Officers Association. He was a police officer
with the Stonington Police Department in Stonington, CN before
he was hired by the Naval Investigative Service in 1985.
Following the events of September 11th, Mr. Danahey was
assigned to the Counterterrorism Division within the Naval
Criminal Investigative Service. He was in the U.S. Marine Corps
before entering the Army, where he reached the rank of major.
He is currently in the U.S. Army Reserves. He received a degree
in psychology at the University of Rhode Island and completed
the advanced study program at the Air Command and Staff
College, Andrews Air Force Base.
Mr.Richard Stana is the Director for Homeland Security and
Justice Issues at the General Accounting Office. He has worked
at the GAO for 27 years on issues relating to law enforcement,
drug control, immigration, customs, corrections, court
administration, and election systems. Mr. Stana is a U.S. Army
veteran and earned a master's degree in business administration
from Kent State University. He is also a graduate of Cornell
University's Johnson School of Management Program on Strategic
Decisionmaking and Harvard University's J.F.K. School,
Government Program on Leadership and Performance.
Gentlemen, without objection, your opening statements will
be provided for the record. We are going to try to stay as
close to the 5 minute time limit as we possibly can.
Secretary Hutchinson, we thank you for coming today, once
again, and revising your schedule to be with us. You are free
to testify.
STATEMENT OF ASA HUTCHINSON, UNDER SECRETARY FOR BORDER AND
TRANSPORTATION SECURITY, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Hutchinson. Thank you, Mr. Chairman. Good morning, and
Ms. Jackson Lee. Thank you for your support for the creation of
Homeland Security and, as we go through this process, this
Committee's support is very important. It's good to be back in
the Judiciary Committee as well, even though I'm on a different
side of the rostrum today.
Obviously, my remarks shall be focused on the immigration
enforcement side because that's the responsibility that falls
to me at Homeland Security. But let me say at the outset that,
even though I'm on the enforcement side of immigration, I also
recognize the importance of immigration services and the
extraordinary contribution that immigrants have made to
America. I think that always should be noted as we engage in
discussions on this subject.
But at Homeland Security, as the INS functions were
transferred to the Department of Homeland Security, the
services side report directly to Secretary Ridge, under Eduardo
Aguirre, who is doing an outstanding job. My responsibility
would be on the enforcement side. That would include the new
reorganization that took place on March 1, in which we have the
Inspection Services under the Bureau of Customs and Border
Protection, with the enforcement side of both immigration and
customs enforcement being under the new Immigration and Customs
Enforcement Bureau. The Border Patrol is also, I might add,
reporting to the Customs and Border Protection, to have a
unified face on the border reporting up through one chain. That
leadership makes a difference in us carrying out our
responsibilities.
Both the Immigration and Custom Enforcement piece and the
Customs and Border Protection Bureau report to me as the Under
Secretary for Border and Transportation Security.
I want to speak on the Bureau of Immigration and Customs
Enforcement. It is responsible for investigating violations
from migrant and contraband smuggling, to money laundering,
from trade fraud and many other criminal activities frequently
linked to terrorism, but also that have other enforcement
responsibilities not linked to terrorism.
Our mission includes having a robust intelligence
component, air and marine interdiction capability, the ability
to detain or remove illegal aliens. ICE is also charged with
protecting more than 8,000 Federal facilities, since the
Federal Protective Service is a part of that enforcement
agency.
All together, ICE brings together 14,000 employees, that
include 5,500 criminal investigators. This makes it the second
largest investigation team in Federal law enforcement, with
only the FBI being larger. I want to note that we are
diligently trying to integrate the training for our ICE special
agents, which they come from two different agencies. Customs
integration, it is important to integrate those closely
together and we're working diligently on that.
The transition of the Immigration and Customs Investigative
resources has gone well. It will be completed as expeditiously
as possible. It is our goal during this transition to make sure
we bring them together, but not have any reduction in
enforcement capabilities and the fulfillment of our mission
during this time of transition.
The President's '04 budget that has been submitted will
increase our capabilities. The budget includes $1.1 billion to
support investigative activities, including immigration, fraud,
forced labor, trade agreement investigators, smuggling and
illegal transhipment, vehicle and cargo theft. This includes an
increase of 355 positions, which will be 207 criminal
investigators, 72 attorneys, and 76 support personnel.
As we move through the phased in integration of the
Immigration and Customs Enforcement pieces, we started out with
an interim structure that relies upon the existing chains of
command. Within a matter of months, we will bring those
management structures together and start doing more cross-
training that should yield a benefit.
On May 24, we are due a report to this Committee detailing
the separation of the enforcement functions and the
organizational structure that is set up, and the procedure for
interaction between ICE and CBP. We look forward to submitting
that report.
I have in my written testimony that is submitted an outline
of some of the investigative priorities and current operations.
I will try not to delve into that deeply, but let me just touch
upon the fact that we certainly, since September 11, have had
to prioritize investigations that have a relationship to
counterterrorism. In conjunction with that, we have joined with
the FBI in interviewing over 6,800 individuals since September
11th, and as part of ongoing Liberty Shield, we have
interviewed with the FBI scores of people, really hundreds of
people, that are of concern, that we want to have more
information on.
In January of 2002, we started an initiative called the
Alien Absconder Apprehension Initiative, which as the Chairman
noted is of a significant concern. The first phase targeted
more than 5,900 aliens from countries where al Qaeda is known
to operate. In the second phase of this, we will look at the
additional 300,000 aliens that have not left the country
despite having final orders of removal.
We have engaged a worksite enforcement strategy that
targets those airports, airlines particularly, that have
vulnerabilities from perhaps the employment of unauthorized
workers. That includes Operation Tarmac, in which we reviewed
the employment eligibility verification forms of more than
224,000 employees, and more than 900 unauthorized aliens have
been arrested in conjunction with that operation.
We have also prioritized looking at terrorist organizations
that use human smuggling rings. This is under Operation
Southern Focus that targets large-scale smuggling operations.
This has to be a continued priority because these smuggling
operations can be used by those that want to move illegal
aliens into our country, but also can be used by those that
have an intent to harm our country.
As you know, Mr. Chairman, and Ms. Jackson Lee, we have
instituted the SEVIS program to look at the foreign students
that have visited our country. We are trying to improve that
process, but clearly, it is important to track those students,
to make sure that those students who do not show up for school
at the educational institution we have knowledge of and can
investigate further as to where they are, why they're out of
status, and what action should be taken.
We have implemented, as part of the entry/exist system
that's been mandated by Congress, the initial step of the
NSEERS program, the National Security Entry Exit Registration
System. To date, we have reviewed more than 110,000 individuals
from over 140 countries being registered in accordance with
that program. To date, that program has identified 11 aliens
that have a link to terrorism and has arrested more than 50
criminal aliens. We are continuing to try to improve the
processing of that so we do not send a signal unnecessarily to
our foreign guests that they are not welcome in the United
States, because that is an important part of our outreach to
other countries.
We have as an important part of our efforts the Law
Enforcement Support Center located in Burlington, VT. The focus
of that is to support local law enforcement agencies in trying
to determine, when they have contact with an individual,
whether that person is, in fact, an illegal, criminal, or
fugitive alien. So that center is very helpful in responding to
requests from local law enforcement.
I will conclude with that, with this Committee, and I look
forward to responding to any questions that might arise.
[The prepared statement of Asa Hutchinson follows:]
Prepared Statement of Asa Hutchinson
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, thank you for the
opportunity today to update you on the transition of the legacy
Immigration and Naturalization Service (INS) and the U.S. Customs
Service into the newly created Department of Homeland Security (DHS). I
would like to focus on the establishment of the Bureau of Immigration
and Customs Enforcement (BICE), and in particular the immigration
enforcement component, a vital part of both the Bureau and the
Department.
When Homeland Security Act of 2002 abolished the INS, its
enforcement functions were moved into the Border and Transportation
Security Directorate. The interior enforcement functions of INS merged
with the interior enforcement functions of Customs, and the Federal
Protective Service (FPS) to form BICE, which deals with interior
enforcement and investigations. The border functions of INS merged with
the border functions of Customs and APHIS to form the Bureau of Customs
and Border Protection (BCBP). Both BICE and BCBP report to me as the
Under Secretary of the Border and Transportation Security Directorate
(BTS).
BICE is charged with enforcing immigration and customs laws within
the United States, giving it one of the most complex and far-reaching
missions within the Department. It is responsible for investigating
immigration violations, migrant and contraband smuggling, money
laundering, trade fraud, and many other criminal activities frequently
linked to terrorism. Meeting these responsibilities as well as our
other statutory missions, requires a robust intelligence capability, an
air and marine interdiction capability, and an ability to apprehend,
detain, and remove illegal aliens. In addition, BICE is charged with
protecting more than 8,000 Federal facilities nationwide against
terrorism, employing the Federal Protective Service (FPS) for that
purpose.
BICE brings together approximately 14,000 employees, including some
5,500 criminal investigators. This makes it the second largest
investigative team in Federal law enforcement, with only the FBI being
larger. No mission of the U.S. government is more critical than
protecting the Nation and the American people from future terrorist
attacks, and that it what BICE along with its DHS and FBI partners are
responsible for doing. The law-enforcement functions of BICE are
fundamental to protecting the homeland, which is why we made carrying
out these functions with minimal interruption our top priority during
transition.
To ensure continuity of operations and DHS proper DHS coordination,
the BICE transition is being accomplished in a phased manner. On March
1, components of the legacy INS, Customs and FPS came together under an
interim reporting structure. Integration of these functions now occurs
at BICE Headquarters. The interim structure relies largely on existing
chains of command at the field level with the exception of the
immigration interior enforcement functions, for which we have
established interim District and Regional Directors for Enforcement.
Significant work has already been done to analyze and design
headquarters and field structures for the longer term, which we will be
implementing over the next several months.
The planning and decisions made to date will be incorporated in and
supplemented by the implementation plan that DHS will send to Congress
by May 24, in accordance with the Homeland Security Act. This plan will
include detailed information about the separation of the legacy INS'
enforcement functions, including:
LOrganizational structure of Headquarters and the
field;
LChains of command;
LProcedures for interaction among BICE, and CBP; and
LFraud detection and investigation.
The transition of the legacy INS and Customs investigative
resources and functions into BICE is proceeding with vigor, driven by a
commitment to ensuring that it is completed as expeditiously as
possible, while maintaining effective and comprehensive enforcement of
immigration and customs laws. The President's FY 2004 budget request
for BICE will bolster the Bureau's efforts to fulfill this commitment.
The $2.8 billion request includes $1.1 billion to support investigative
activities, including immigration, fraud, forced labor, trade agreement
investigations, smuggling and illegal transshipment, vehicle and cargo
theft. With these funds, BICE will protect the integrity of the lawful
immigration system by countering alien smuggling, combating document
and benefit fraud, and identifying and removing those who are in the
United States illegally.
Historically, enforcing our immigration and customs laws in the
Nation's interior has been an exceptionally demanding and challenging
mission. The tragic events of September 11, 2001, and our ensuing
national commitment to combat terrorism and those who harbor and
support terrorists added to the demands and challenges our agents face.
Nevertheless, they remain undaunted.
Our highest priority is preserving and protecting the security of
our country and its citizens. To meet this priority, we developed a
strategy designed to establish a robust continuum of enforcement from
the Nation's interior to its borders and out to the farthest reaches of
home countries of illegal aliens and goods and the countries they
transit through coming to the United States. BICE's interior
immigration and customs enforcement strategy seeks to:
LDeter, disrupt and disable terrorist plans,
organizations and support networks;
LIdentify, apprehend, and remove aliens who threaten
the safety and security of the nation;
LDeter and diminish smuggling and trafficking of
aliens;
LProtect businesses of national security interest from
the vulnerabilities created by the employment of unauthorized
alien workers;
LIdentify, apprehend, and remove alien criminals;
LMinimize immigration benefit fraud and other document
abuse; and
LRespond to community needs related to illegal
immigration.
Currently, responsibility for meeting certain of these strategic
objectives rests with the Special Agents and Deportation Officers who
were reassigned to BICE from the legacy INS. BICE is also staffed by
Special Agents from legacy Customs and the FPS. To differentiate among
Special Agents, this testimony will refer to those who came from INS as
``Special Agents with immigration expertise.'' Before moving on, it is
important to note that we are working diligently to integrate training
for both current and future BICE Special Agents, which will greatly
expand our capability to enforce immigration law as well as to carry
out our other customs-related enforcement functions.
Special Agents with immigration expertise are tasked with a wide
range of critical responsibilities related to thwarting terrorists and
those who support them. These include serving on FBI-led Joint
Terrorism Task Forces and the Foreign Terrorist Tracking Task Force.
BICE Special Agents with immigration expertise working with the Joint
Terrorism Task Forces play a significant role in strengthening our
national security. They have been proactively investigating, targeting,
and arresting known terrorists, terrorist organization leaders,
members, and associates. Working closely with the FBI, these agents
have conducted more than 6,800 joint interviews since September 11,
2001.
In addition, Special Agents with immigration expertise actively
participate in Federal, state, and local task forces that target
criminal activities and enterprises that frequently involve aliens.
These include the Violent Gang Task Forces, which have been established
in major cities across the country, and the Organized Crime Drug
Enforcement Task Forces, which are active in nearly 60 U.S. cities.
On March 20 of this year, agents from BICE began seeking out Iraqi
nationals believed to be unlawfully in the United States and
apprehending them. The joint initiative, carried out as part of
Operation Liberty Shield, is aimed at taking individuals off the street
who might pose a threat to the safety and security of the American
people. The Iraqis targeted as part of the effort were identified using
a range of intelligence criteria. The operation is ongoing.
In January 2002, the investigations and detention and removal
components of legacy INS launched the Absconder Apprehension
Initiative. This initiative is aimed at aggressively tracking,
apprehending, and removing aliens who have violated U.S. immigration
law, been ordered deported, then fled before the order could be carried
out. The first phase targets some 5,900 aliens from countries where Al
Qaeda is known to operate or recruit. The second phase of this
initiative focuses on the apprehension and removal of more than 300,000
aliens with unexecuted final orders of removal. To facilitate locating
these aliens, we are entering their names into the FBI's National Crime
Information Center (NCIC) so that the added weight of other Federal,
state, and local law enforcement officers is brought to bear on this
mission.
Special Agents with immigration expertise involved in work-site
enforcement are also focusing their efforts on people who pose threats
to our homeland security. Before September 11, the worksite enforcement
strategy targeted employers who abuse their workers and violate other
Federal and state laws, regardless of industry or geography. Today, we
are more sharply focused on protecting businesses of homeland security
interests from the vulnerabilities created by the employment of
unauthorized workers.
Operation Tarmac, for example, was launched in recognition of the
fact that illegal workers at airports pose a serious security risk. It
aims to ensure that people working in secure areas at airports were
properly documented and to remove those without proper documentation.
So far, more than 224,000 Employment Eligibility Verification Forms
(Forms I-9) have been audited at more than 3,000 airport businesses.
More than 900 unauthorized aliens have been arrested, with more than
two-thirds of them being charged with criminal violations. As part of
Operation Tarmac, security officials responsible for granting access
badges to secure areas are being provided with fraudulent document
training.
Operation Glowworm, uses the same goals and methodologies to
enhance the security of our Nation's nuclear power facilities. Field
offices have already investigated 89 nuclear plants and facilities and
65,000 permanent and contract employees with direct plant and facility
access.
BICE's Anti-Smuggling Program aims to dismantle smuggling
organizations with links to terrorism and others groups that pose a
risk to our national security. Available information indicates
terrorist organizations often use human smuggling rings to move around
the globe, which makes investigating and dismantling these
organizations a vital part of our overall effort to enhance homeland
security.
Focusing our anti-smuggling resources on domestic security led to
the initiation of Operation Southern Focus, a multi-jurisdictional
effort launched in January 2002. This operation targeted large-scale
smuggling organizations specializing in the movement of U.S.-bound
aliens from countries of concern. Many targets of Operation Southern
Focus were believed to be responsible for smuggling hundreds of aliens
into the country. Since the inception of this operation, eight
significant alien smugglers have been arrested and charged with alien
smuggling violations, and significant alien smuggling pipelines have
been severely disrupted.
Ensuring that foreign students comply with the terms of their visas
is also vital to our nation's security. That is why Student and
Exchange Visitor Information System (SEVIS) was developed and deployed.
This new Internet-based system will greatly enhance the government's
ability to manage and monitor foreign students and exchange program
visitors and their dependents during their stay in the United States.
SEVIS maintains critical, up-to-date information that can be
accessed electronically, making it a powerful tool for combating fraud
and for ensuring that individuals comply with the terms of their visa.
Student status violators who may present a heightened security risk are
immediately referred to the BICE National Security Unit for appropriate
action as determined by the Unit. All others are being prioritized
based upon other factors such as criminal history and prior adverse
immigration history, and then referred to the appropriate field office.
The National Security Entry Exit Registration System (NSEERS) is
also playing an important role in support of our anti-terrorism
efforts. Since its implementation in September 2002, more than 110,000
individuals from over 140 countries have been registered. Special
Agents with immigration expertise are responsible for interviewing and
processing NSEERS registrants referred for investigation of possible
immigration violations, criminal violations, or on terrorism-related
matters. To date, NSEERS has resulted in the identification of 11
aliens linked to terrorism, the arrest of more than 50 criminal aliens,
and the issuance of more than 6,200 notices to appear for removal
proceedings.
Immigration benefit and document fraud are also criminal activities
that pose serious risks to national security. Investigating these
activities is another responsibility of our Special Agents with
immigration expertise, and it is also another area where BICE continues
to have success even as its transition continues. Early last month, for
example, agents seized tens of thousands of fraudulent government
identity documents in New York City. These documents, which had a
street value of more than $3 millions, included Resident Aliens Cards,
Employment Authorization Cards, Social Security Cards, and driver's
licenses from 10 different states.
BICE extends the reach of its Special Agents by providing support
to state and local law enforcement through the Law Enforcement Support
Center (LESC) located in Burlington, Vermont. The Center's primary
mission is to help local law enforcement agencies determine if a person
they have contact with or have in custody, is in fact an illegal,
criminal, or fugitive alien. The LESC provides an around-the-clock link
between Federal, state, and local officers and the immigration
databases maintained by BICE.
When a law-enforcement officer arrests an alien, LESC personnel are
able to provide him or her with vital information and guidance, and if
necessary, place the officer in contact with an BICE immigration
officer in the field. The partnerships fostered by the LESC increase
public safety. Every day, they result in the apprehension of
individuals who are unlawfully present in the United States, many of
who have committed a crime and pose a threat to the local community or
our Nation.
In FY 2002, the LESC received 426,895 law-enforcement inquiries.
These included 309,489 from state and local law enforcement, 24,646
inquiries regarding foreign nationals seeking to purchase firearms, and
24,646 investigative inquiries. The LESC lodged 2,112 detainers for the
detention of unauthorized aliens. Additionally, the LESC processed
3,818 queries relating to NCIC hit confirmation requests.
Another way in which BICE continues to respond to the needs of the
law enforcement community is through Quick Response Teams (QRTs), which
have been established across the United States. There are BICE Special
Agents with immigration expertise and Deportation Officers assigned to
QRTs. Their primary duty is to work directly with state and local
enforcement officers to take into custody and remove illegal aliens who
have been arrested for violating state or local laws or who are found
to be illegally in the U.S.
Clearly, deterring illegal migration and combating immigration-
related crime have never been more critical to our national security.
The men and women of BICE are tackling this challenging mission with
great diligence, deeply determined to ensure that no duty is neglected
even as they continue to adjust to their new home. I am eager to work
with you and the other members of Congress make sure that they have
what they need to provide the American people with the level of
security they demand and deserve. Thank you. I look forward to your
questions.
Mr. Hostettler. Thank you, Mr. Secretary.
Mr. Krikorian, you are free to testify. Once again, thank
you for your flexibility in your schedule.
STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR OF THE CENTER
FOR IMMIGRATION STUDIES
Mr. Krikorian. Good morning. Thank you, Mr. Chairman, for
the opportunity to speak to this Subcommittee.
Given the short time available, I want to focus my comments
on two questions related to interior immigration enforcement.
First, is it really likely to yield any security benefit, and
second, is it even possible to gain control over interior
immigration violations.
There are three parts to any immigration enforcement
system, three filters to identify unwanted people for exclusion
or deportation. First is overseas, the visa process, which
regrettably was allowed to remain in the State Department;
second is at the borders, and that's in the capable hands of
the new Bureau of Customs and Border Protection; and finally,
the enforcement of immigration laws in the interior of the
country, now the responsibility of the Bureau of Immigration
and Customs Enforcement.
Since the terror attacks of 9/11, the first two parts of
our immigration filter--visas and border control--have seen
real improvements. Although much remains to be done, there's a
consensus that these first two filters are important and the
problems are beginning to be tackled.
The third filter, however, is in much worse shape. Interior
immigration enforcement has long been sporadic, and by the late
1990's, all but stopped, except in a few important but narrow
areas. The neglect of interior enforcement has helped create a
very large illegal population, now estimated by the Census
Bureau at more than 8 million people. And contrary to some
claims, lax enforcement of immigration law has become a danger
to the community by increasing America's vulnerability to
terrorist from overseas.
Now, there are a number of reasons of why interior
immigration enforcement must be improved: maintaining the rule
of law, protecting America's working poor, avoiding huge costs
to taxpayers. But the most pressing concern today is the risk
from foreign-born terrorists.
In a study completed last year by the Center for
Immigration Studies, we found that almost half of the 48
foreign-born, al Qaeda-linked terrorists involved in terrorism
in the United States from 1993 to 2001 had committed
significant violations of immigration law before taking part in
terrorism. Thus, strictly enforcing immigration laws must be a
key component of our anti-terrorism efforts, first of all
simply because of its ability to directly disrupt terrorist
plots and keep terrorist organizations off balance. In many
cases, terrorists lived, worked, opened bank accounts and
received drivers licenses with little or no difficulty while
they were in the United States for an extended period of time
in violation of immigration laws.
For example, of the 48 terrorists in the study, at least 13
had overstayed a temporary visa at some point. In addition to
visa overstays, we found that some terrorist had engaged in
fraudulent marriages to American citizens, such as Fadil
Abdelgani, who took part in the New York City landmarks bombing
plot in 1993.
Terrorists also provided false information on their
applications for permanent residence, such as Sheik Omar Abdel
Rahman, the inspiration for several terrorist plots. Also, at
least eight terrorists held jobs for extended periods while
living in the United States illegally before taking part in
terrorism, including participants in the first World Trade
Center attack, the New York landmarks bombing plot and the
millennium plot.
Because such a large percent of foreign-born terrorists
violated immigration law, enforcing the law would be extremely
helpful in disrupting and preventing terrorist attacks. Of
course, the vast majority of those who violate immigration law
are not terrorists.
However, beyond the direct effect that enforcement of
immigration law would have on terrorist cells, there are two
other reasons that allowing a large, illegal but non-terrorist
population to reside in the U.S. facilitates terrorism. First
of all, it has created a large, underground industry that
furnishes illegals with fraudulent identities and documents
that terrorists can and have tapped into. Secondly, though, the
existence of a huge, illegal alien population creates a general
contempt or disregard for immigration law.
Although the public may still want the law enforced, the
scale of illegal immigration creates a tacit acceptance by
local law enforcement, by policymakers, and even by immigration
enforcement personnel themselves. In other words, with millions
of illegal immigrants in the country, and with immigration laws
widely flouted and seldom enforced, it is perhaps easy to
understand why, for instance, the immigration inspector at
Miami's airport allowed Mohammed Atta back into the United
States in January, 2001, or why Brooklyn's subway bomber, Gazi
Ibrahim Abu Mezer, was released from INS detention.
Although national security, economic and fiscal arguments
against illegal immigration are overwhelming, many people might
still argue that there's little that can be done about the
situation. In other words, is there really any point to
interior enforcement of the immigration law, since people are
going to come anyway?
But, in fact, illegal immigration isn't nearly as
intractable a problem as it may seem. The INS estimated a few
years ago that more than 400,000 people leave the illegal
population each year. Some go home voluntarily, others are
deported, others get green cards. Of course, something like
800,000 new illegals arrive annually, and so the total
population continues to grow.
But if through immigration enforcement, including interior
enforcement, we can significantly reduce the number of new
illegals entering the country, and increase the number of those
going home, even if modestly, we can engineer a steady decline
in the illegal population, allowing the problem to become
progressively smaller over time through attrition.
Nor is this merely supposition. A special registration
program applies to nationals of more than two dozen countries,
of which Pakistan has the largest illegal population in the
U.S., estimated to have been 26,000 as of January of 2000.
Thousands of these illegal aliens, though, have now left the
country voluntarily without having to be deported, precisely
because of the requirements of the special registration
program. In other words, if they showed up at the INS, they
would be deported; if they remained here unregistered, they
feared arrest, so a large part of the Pakistani illegal alien
population has either returned home or gone to other countries,
such as Canada.
We can expect any other increases in interior enforcement
efforts to yield similar multiplier effects, with each illegal
alien actually apprehended causing many more illegals to leave
on their own.
Let me conclude by observing that this is, in a sense, an
extension of the ``broken windows'' policy of urban policing.
In other words, ignoring small violations of the law leads to
general disorder and to larger crimes. And as we saw in New
York, for instance, cracking down on seemingly minor
infractions, like graffiti or subway turnstile jumping not only
apprehends individuals directly guilty of more serious crimes
but also leads to a sense that order is being restored and that
the law is back in control.
The same is the case in immigration. Comprehensive interior
enforcement, rather than a focus solely on criminal alien
deportations and antismuggling, as important as they are, would
lead to a spreading sense that order was being restored to the
current state of anarchy in our immigration system, and would
be one of the most effective means of reducing the threat from
foreign-born terrorists domestically.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Krikorian follows:]
Prepared Statement of Mark Krikorian
introduction
There are three parts to any immigration enforcement system, three
filters to identify unwanted people for exclusion or deportation:
First, the visa process overseas; second, inspections and patrols at
the border; and, finally, enforcement of immigration laws in the
interior of the country.
Since the Islamist terror attacks of September 11, 2001, the first
two parts of our immigration filter have seen improvements. Increased
rigor in the consideration of visa applications at our consulates
abroad, and progress toward implementing an effective entry/exit
tracking system at the border have marked real steps forward. Although
much remains to be done, the problems are being tackled.
The third filter is in much worse shape. Starting in 1993, with the
Border Patrol's Operation Hold the Line, in El Paso, and accelerated by
the immigration bill passed by Congress in 1996, the focus of
immigration law enforcement was the southern border. Important as this
was, it was not matched by similar improvements in interior
enforcement. In fact, quite the opposite. For instance, when the INS
conducted raids during Georgia's Vidalia onion harvest in 1998,
thousands of illegal aliens abandoned the fields to avoid arrest.
Within hours, employers and politicians registered their displeasure,
and the enforcement action was discontinued.
In response, the INS developed a ``kinder, gentler'' means of
enforcing the law, which fared no better. Rather than conduct raids on
specific employers, Operation Vanguard sought to identify illegal
workers at all meatpacking plants in Nebraska through audits of their
personnel records. The INS found about 4,000 workers, out of about
24,000, who appeared to be illegal, and scheduled interviews to
determine their status. Three thousand of these workers turned out to
be illegal aliens, and never showed up for their interviews, with the
remaining 1,000 able to correct errors in their records.
Local law enforcement officials were very pleased with the program:
``It's an excellent program,'' said Grand Island Police Chief Kyle
Hetrick. ``It's a positive thing. It's effective.'' Despite the initial
promise of this new enforcement strategy, employers and politicians
actively criticized the very idea of enforcing the law: ``It was ill-
advised for Operation Vanguard to start out in a state with such low
employment and an already big problem with a shortage of labor,'' said
a former Nebraska governor who had been hired to lobby for an end to
immigration law enforcement. As a result, plans to expand the program
to other states and other industries were scrapped and the INS official
who developed the program was forced into early retirement.
Neglect of interior enforcement. The INS got the message and
developed a new interior enforcement policy that gave up on reasserting
control over immigration and focused almost entirely on the important,
but narrow, issues of criminal aliens and smugglers. As INS policy
director Robert Bach told the New York Times in a 2000 story entitled
``I.N.S. Is Looking the Other Way As Illegal Immigrants Fill Jobs'':
``It is just the market at work, drawing people to jobs, and the INS
has chosen to concentrate its actions on aliens who are a danger to the
community.''
This neglect of interior enforcement has helped to create a very
large illegal population, now estimated by the Census Bureau at more
than eight million. And, contrary to Prof. Bach's claims, lax
enforcement of immigration laws has become a ``danger to the
community'' by increasing America's vulnerability to terrorists from
overseas.
Fortunately, today there is reason for optimism that interior
enforcement will be reinvigorated. When the service and enforcement
functions of the former Immigration and Naturalization Service were
separated, the Bush Administration further split enforcement into two
parts, border and interior enforcement (unfortunately, the first
filter--the visa process--was allowed to remain in the State
Department). Though somewhat unexpected, this was a very sensible move,
given the importance of interior enforcement and the low priority it
had been given in the past. And unlike the academics who had held top
positions in the prior arrangement of INS, this time the immigration
enforcement components of the new Homeland Security Department,
including the Bureau of Immigration and Customs Enforcement, are headed
by people with genuine law-enforcement backgrounds.
With this new arrangement, our nation can finally work toward
restoring order to our anarchic immigration system, by focusing
resources and attention on all three filters in our immigration-control
system.
why improve interior enforcement?
There are a number of reasons why interior enforcement must be
improved. First, in a nation built on the rule of law, allowing any set
of laws, including those pertaining to immigration, to be routinely
flouted undermines the very foundation of our Republic. More
specifically, there are significant costs to the U.S. economy and
American taxpayers from allowing millions of people to live in the
United States illegally.
Finally, there is the risk from foreign-born terrorists. In a study
completed last year by the Center for Immigration Studies, we found
that 22 of 48 foreign-born al Qaeda-linked terrorists who were involved
in terrorism in the United States between 1993 and 2001 had committed
significant violations of immigration laws prior to taking part in
terrorism. Thus, strictly enforcing immigration laws must be a key
component of our anti-terrorism efforts.
In many cases terrorists lived, worked, opened bank accounts, and
received driver's licenses with little or no difficulty. They operated
for extended periods within the United States while they were in
violation of immigration laws. For example, of the 48 terrorists in the
study, at least 13 had overstayed a temporary visa at some point.
In addition to overstaying visas, we found that terrorists have
violated immigration laws in a number of other ways. Some terrorists
have engaged in fraudulent marriages to American citizens, such as
Fadil Abdelgani, who took part in the plot to bomb New York City
landmarks in 1993, and Khalid Abu al Dahab, who raised money and helped
recruit new members for al Qaeda from within the United States.
Terrorists also violated immigration laws by providing false
information on their applications for permanent residence, such as
Sheik Omar Abdel Rahman, who inspired several terrorist plots. Still
other terrorists have violated the law by working illegally in the
United States; at least eight terrorists held jobs for extended periods
while living in the country illegally before taking part in terrorism,
including those involved in the 1993 World Trade Center attack, the
plot to bomb New York landmarks, and the Millennium plot. Because such
a large percentage of foreign-born terrorists violated immigration law,
enforcing the law would be extremely helpful in disrupting and
preventing terrorist attacks.
Tolerating illegal immigration facilitates terrorism. Of course,
vast majority of aliens who violate immigration laws are not
terrorists. However, allowing a large illegal population to reside in
the United States facilitates terrorism for two reasons. First, it has
created a large underground industry that furnishes illegals with
fraudulent identities and documents that terrorists can (and have)
tapped into. Several of the 9/11 terrorists were assisted in getting
their Virginia driver's licenses from someone who specialized in
helping run-of-the-mill illegal aliens obtain them.
Second, the existence of a huge illegal population creates a
general contempt or disregard for immigration law. Although the general
public may still want the law enforced, the scale of illegal
immigration creates a tacit acceptance by law enforcement,
policymakers, and even immigration-enforcement personnel themselves.
With millions of illegal immigrants already in the country, and with
immigration laws widely flouted, it is perhaps easy to understand why
the immigration inspector at Miami's airport allowed Mohammed Atta back
into the country in January 2001 even though he had overstayed his visa
on his last visit and had abandoned his application to change status to
vocational student by leaving the country.
The release from INS detention of 1993 World Trade Center Bomber
Ahmad Ajaj or Brooklyn subway bomber Gazi Ibrahim Abu Mezer (or, more
recently, sniper John Lee Malvo) also does not seem so outrageous when
one considers that immigration law is routinely violated and millions
of people are allowed to live in the country illegally. Tolerating mass
illegal immigration is by no means the only factor increasing the
chance that terrorists will successfully enter and remain in the
country, but by not enforcing immigration law we have made life easier
for the large number of terrorists who have broken immigration laws.
Other reasons for interior enforcement. Of course, combating terror
is not the only reason to enforce the immigration law. We know from a
variety of sources that illegal aliens are overwhelming unskilled, with
more than three-fourths lacking even a high school education. Each year
several hundred thousand illegal aliens without a high school education
settle in the United States. Allowing in so many unskilled workers
creates very significant economic problems. The economic goal of a
modern society such as ours is to create a large middle class through
high-wage, capital-intensive jobs exhibiting growing labor productivity
and aiming toward a flatter distribution of income. Mass unskilled
immigration, a very large share of which is illegal, subverts these
goals. In its 1997 report, the National Research Council concluded that
by increasing the supply of unskilled workers, immigration was
responsible for close to half the decline in relative wages for high
school dropouts from 1980 to 1994, translating into lost wages for
those dropouts amounting to about 5 percent of their incomes.
From the point of view of employers, this seems like a desirable
state of affairs, since lower labor costs mean higher profits, and for
consumers it should mean lower prices as well. Of course, for the 10
percent of our workers who lack a high school education and who are
already the lowest-paid workers, this reduction is quite harmful. But,
putting aside the impact on the working poor, the long-term
consequences of illegal immigration for the economy are also harmful.
There is strong evidence that in industries as diverse as
construction, garment manufacturing, and agriculture an increasing
reliance on unskilled illegal-alien labor is slowing productivity gains
and causing the United States to fall behind its international
competitors. At least 80 percent of illegal aliens lack a high-school
education and this unskilled immigration acts as a subsidy by
artificially holding down labor costs by increasing the supply of
labor. Businesses tend to want subsidies and often grow dependent on
them. But like any subsidy, illegal immigration prevents innovation and
causes the industry in question to lose its competitive edge in the
long term. Reducing illegal immigration and allowing wages to rise
naturally would not only be good for the working poor, it would make
for a more productive economy. Employers, in response to upward
pressure on wages, would adopt more productive methods, such as dried-
on-the-vine raisin production or greater use of pre-fabricated material
in construction. We can reduce illegal immigration secure in the
knowledge that it will not spark inflation because unskilled workers
account for such a tiny fraction of total economic output. High school
dropouts account for less than 4 percent of total output in the United
States, so even if wages rose substantially for these workers, the
effect on prices would be very small.
Illegal immigration is also a problem for public coffers. In
addition to reducing wages for the working poor and hindering
productivity gains, there is another problem with illegal immigration--
it imposes significant fiscal costs, an extremely important concern at
a time of huge budget shortfalls in almost every state. As a practical
matter, the middle and upper classes in the United States pay almost
all of the taxes. The poor--immigrant or native--generally consume
significantly more in public services than they pay in taxes. Because
illegal aliens are overwhelming unskilled, this results in their having
much lower incomes and tax payments. Moreover, while illegal aliens are
not supposed to use most welfare programs, in fact they often make use
of them anyway. Even if the immigrant himself is not eligible because
of legal status, immigrant families can still receive benefits on
behalf of their U.S.-born children, whose welfare eligibility is the
same as any other native-born American.
In research done by the Center for Immigration Studies, we
estimated that of households headed by illegal aliens from Mexico (the
largest component of the illegal population), 31 percent used at least
one major welfare program. This is lower than the 37 percent estimated
for households headed by legal Mexican immigrants. But it is much
higher than the 15 percent estimated for natives. Significant use of
public services coupled with much lower tax payments means that illegal
immigrants almost certainly create a net fiscal drain.
In 1997 the National Academy of Sciences (NAS) estimated that
immigrant households consume between $11 billion and $20 billion more
in public services than they pay in taxes each year. This net fiscal
drain (taxes paid minus services used) is almost entirely the result of
unskilled immigrants. The NAS estimated that an immigrant with less
than a high school education imposes a net fiscal drain of $89,000 on
public coffers during his lifetime. This burden on taxpayers would, of
course, become even worse if these immigrants were legalized, because
they would remain largely poor, given their limited education levels,
but they would become directly eligible for welfare programs. From the
point of view of taxpayers, reducing illegal immigration by enforcing
the law would almost certainly be desirable.
making interior enforcement effective
What steps are necessary to enable the new Bureau of Immigration
and Customs Enforcement to play its vital part in immigration control?
Tracking System for Temporary Visa Holders. There is a longstanding
problem that the federal government often has no idea whether foreign
visitors have left when their temporary visas expire. In addition, it
often has no idea where foreign citizens live while their visas are
still valid. A number of terrorists have been tourists and business
travelers, and it would be very difficult to track such individuals
within the United States. Even in the current environment, it is
unrealistic to expect all foreign visitors to submit their passports
every time they check into a hotel and to expect hotels to report that
information. Currently, foreign travelers are required to write down
their destination upon entering the United States, but no effort is
made to verify the information; in fact, two of the 9/11 jihadists
listed ``Marriott Hotel, New York'' as their destination.
The Special Registration system in place for visitors from
selected, mostly Middle Eastern, countries is a valuable first step
toward a comprehensive entry/exit tracking system, but it would
probably not be feasible to apply it in its current form to the
millions of alien visitors from all countries. But it would be possible
to keep such close tabs on all foreign citizens residing here for
extended periods of time who are affiliated with an American
institution responsible for their whereabouts. Such a system makes
sense because many of these long-term visitors (here from one to six
years, or more) reside here for a long time in a legal status, whereas
short-term visitors are less likely to have the time to hatch
sophisticated plots before their visas expire. Although short-term
tourists and business travelers, who are not attached to any American
institution, make up the majority of non-immigrants, the number of
long-term visa holders requiring oversight is still quite large. In
2001, there were more than 1 million foreign students and exchange
visitors admitted (including their spouses and young children), as well
as almost 1.4 million long-term foreign workers (including family),
each more than double the number admitted just five years previously.
Tracking these individuals through their American institutions is both
desirable and possible. If they leave their schools, jobs, or otherwise
violate the terms of their admission, we would know immediately, and
then we could send out an investigator while the trail was still warm.
Tracking foreign students--and others. One of the largest single
categories of long-term temporary visitors is foreign students
(admitted on F1 and M1 visas). A number of terrorists originally
entered on student visas, including Eyad Ismoil, a conspirator in the
1993 World Trade Center bombing, and 9/11 hijacker Hani Hanjour, and
both were in the country illegally when they committed their crimes.
Ismoil dropped out after three semesters and remained in the United
States illegally, while Hanjour never even attended class. Both Khalid
Abu al Dahab and Wadih el Hage originally came to the United States on
student visas, later married Americans, and became naturalized
citizens.
The 1996 immigration law mandated that the INS develop a
computerized tracking system for foreign students to replace the failed
paper-based system. Unfortunately, that system did not moved beyond the
pilot stage because of scorched-earth opposition from universities and
colleges. Institutions opposed it, and continue to oppose the current
Student Exchange and Visitor Information System (SEVIS), fearing the
extra administrative burden, but mainly because they do not like the
idea of treating foreign students differently from their American
counterparts. But given the very real threats we face, tracking
students makes perfect sense. Ideally such a system would provide the
INS with real-time information verifying a student's enrollment and
immediately notify the INS if the student drops out or otherwise is not
honoring the terms of his visa. The border security bill signed by the
president last May has accelerated the development of a workable
student-tracking system, but as this subcommittee heard last week,
there is still a long way to go.
Despite the current difficulties faced by SEVIS, this strategy
should not be limited only to foreign students. There are an additional
million temporary workers, trainees, and intra-company transferees who
can and should be included in such a system. Expanding the new tracking
system to cover all long-term non-immigrants is necessary to ensure
that the system is as comprehensive as possible. INS enforcement could
then follow up with the sponsoring employer or other institution as
soon as it learns that the alien violated the terms of the visa.
Names of visa violators should be in the national crime database.
In January of 2002, the INS announced that it was going to add to the
FBI's National Crime Information Center (NCIC) database the names of
more than 300,000 illegal aliens who have been ordered deported, but
whose departure the INS cannot verify. This is certainly a good start,
but once a well-functioning entry/exit system is in place, the names,
photos, and fingerprints of all those who overstay or otherwise violate
the terms of their admission to the U.S. should be added to the
criminal database. In that way, if they are ever arrested for a crime
or even pulled over in a traffic stop they can be held by local police
and then turned over to the BICE agents. This could become a key
component of interior enforcement. With 3 to 4 million visa overstayers
living in the United States, there is no question that tens of
thousands of them have some encounter with the authorities each year.
Traffic stops and arrests are a significant opportunity to apprehend
those in the country illegally, and we should take full advantage of
them.
While adding visa violators to the criminal database would help
reduce illegal immigration, one may still wonder if it would ever be
useful against terrorists. In fact, two of the 9/11 hijackers were
pulled over in traffic stops in months preceding the attacks. In the
spring of 2001, the plot's ringleader, Mohammed Atta, received a
traffic ticket in Broward County, Florida, for driving without a
license. He had, by this time, overstayed his visa on his previous
visit to the United States between June of 2000 and January of 2001,
though the INS at Miami International Airport allowed him back into the
country. Had a system of carefully tracking overstays and placing their
names in the criminal database been in place, then we might have been
able to apprehend Atta and perhaps avert the 9/11 attacks. Although he
had not overstayed his visa, Ziad Samir Jarrah, who was on board United
Airlines Flight 93 that crashed in Pennsylvania on 9/11, was issued a
speeding ticket on September 9 in Maryland for driving 95 miles an hour
in a 60-mile-per-hour zone. Thus, even the most sophisticated
terrorists in American history seem to have run afoul of the law prior
to carrying out their plans.
For BICE to quickly take custody of visa violators detained by
police, it would need many more agents assigned to interior enforcement
and much more detention space. By adding the names of visa overstays to
the criminal database, the INS would in effect enlist the help of
thousands of local law enforcement officers.
Enforcing the ban on hiring illegal aliens. The centerpiece of any
new interior enforcement strategy has to be a resumption in enforcement
of the ban on hiring illegal aliens. While worksite enforcement, as it
is commonly called, may not seem to be important to national security
at first glance, it is, in fact, vital to reducing the terrorist
threat. Gaining control of the border between crossing points (now the
job of the Homeland Security Department's Bureau of Customs and Border
Protection) is only possible if BICE is able to dramatically reduce the
number of illegal job seekers trying to sneak into the United States by
making it extremely difficult for them to find work.
As already indicated, the estimated 8 million illegals now living
in the country have also created a vast market and infrastructure for
fraudulent documents. The existence of widespread fraud can only make
it easier for terrorists to operate in the United States. In addition,
it would be much harder for terrorists who overstay their visas to
blend into normal life if finding a job is made more difficult.At least
eight of the terrorists in our study worked in the United States
illegally before being arrested. Of course, terrorists could still come
with large sums of cash and try to live undetected, but doing so would
be much harder if getting a job is much more difficult.
Worksite enforcement must be made effective. There are two steps
that are needed to make worksite enforcement effective. First, a
national computerized system that allows employers to verify the work-
eligibility of new hires needs to be implemented. Employers would
submit the name, date of birth, Social Security number (SSN), or alien
registration number to the INS for each new hire. This information is
already collected for I-9 forms, but is not used for enforcement. After
an instant check of its database, the employers would then receive an
authorization number indicating that the person is allowed to work in
the United States. The authorization number would provide the employer
an ironclad defense against the charge that they knowingly hired an
illegal alien. Tests of such systems have generally been well received
by employers.
Document fraud, of course, is widespread, but a computerized system
would be a key tool in uncovering it. For example, a valid SSN that is
linked to a different name and submitted to immigration authorities, or
a SSN and name that show up among numerous employers across the
country, would both be indications that a worker is trying to skirt the
law. BICE could develop procedures to identify potential problems of
this kind. When a potential problem is identified, special agents would
then go out to the employer and examine all the paperwork for the
employee, perhaps conducting an interview with the worker and determine
the source of the problem.
Dramatically increase the number of investigators. Investigators
from BICE are charged with such tasks as worksite enforcement, anti-
smuggling efforts, and combating document fraud. Before the
reorganization, there were only about 2,000 agents assigned to interior
enforcement for the entire country. This number must be increased
dramatically. Also, there were only the full-time equivalent of 300 INS
inspectors devoted to worksite enforcement year-round, whose job it is
to enforce the ban on hiring the five or six million illegal immigrants
in the workforce. If the number of investigators was increased to the
levels necessary, they could begin to visit employers identified by the
verification system as having a potential problem, and additionally
could randomly visit worksites to see that employers were filing the
paperwork for each worker as required by law. Those employers found to
be knowingly hiring illegals would be made to pay stiff fines.
It is not just in the area of worksite enforcement that additional
investigators could be put to work. The system of tracking students and
perhaps other visitors requires that there be enough agents to locate
those identified by the tracking system as having violated their visas.
If we create a tracking system, for example, but there are no agents to
investigate those who stop working or attending class, then a tracking
system is almost meaningless. Failure to develop such a system means
that millions of illegal immigrants will continue to work and live in
the United States facing little or no penalty. Not only does this make
a mockery of the rule of law, harm the working poor, and impose
significant costs on taxpayers, it also exposes the country to
significant security risks.
Employment verification as a proxy for comprehensive registration.
Most of the recommendations outlined above have dealt with temporary
visa holders or efforts to reduce illegal immigration. More effective
monitoring is also needed of permanent residents. A number of militant
Islamic terrorists have been legal immigrants, including Sheik Omar
Abdel Rahman, Siddig Ibrahim Siddig Ali (ringleader of a plot to bomb
New York landmarks) and Mahmud Abouhalima, a leader of the 1993 attack
on the World Trade Center.
Until the early 1980s all non-citizens living in the United States
were required to register annually their whereabouts with the INS. This
practice should probably not be revived in that form. Potential
terrorists cannot be expected to dutifully send in post cards with
their addresses. However, the employment verification system outlined
above could be a very effective tool in locating non-citizen legal
immigrants. This is especially important when a person is placed on the
watch list after he has entered the country. At present, there is often
no way for immigration authorities to know where that individual lives;
but the employment verification process would provide them with the
last known employer for green card holders who work. Thus, if it became
necessary to arrest, or undertake surveillance of a non-citizen, his
last known employer would be a place to start. The verification system
would, in effect, be a means of alien registration, at least for those
resident aliens who work.
Prevent illegals from putting down roots. One change that seems
obvious is to expand the concept of employer sanctions to other aspects
of life. In other words, we should require verification of legal status
not only when a person starts a new job but also when a person applies
for a driver's license, and a bank account, and a mortgage, and college
admission. Bank accounts are especially important because they make it
easier for people who work illegally in the United States to cash
paychecks and transfer money abroad. Thus, by permitting illegal aliens
to open bank accounts we make it easier to be an illegal alien, which
in turn can only increase illegal immigration. This is the unintended
consequence of the U.S. Treasury Department's explicit policy of giving
a green light to banks to accept Mexico's consular registration card, a
document useful within the United States only to illegal aliens.
Another key is to prevent illegals from getting driver's licenses.
A number of the 9/11 terrorists were able to get licenses and open bank
accounts with little difficulty. Virginia, which issued eight drivers
licenses to 9/11 terrorists, only required that a third party attest to
the fact that the license applicant is a state resident. This is a
clear invitation for illegal aliens and terrorists to obtain driver's
licenses.
All states must require birth certificates and other supporting
documents for licenses. Unfortunately, a number of states do not
carefully verify identity or eligibility for a license, and in fact
some states now explicitly allow illegal aliens to get licenses. Not
only do licenses make it easier to open bank accounts, licenses are
also helpful when accessing government documents, looking for a job,
renting motor vehicles, and of course boarding commercial airliners. If
we are serious about reducing illegal immigration and protecting the
country from terrorists, then doing a great deal more to prevent
illegals from opening bank accounts and obtaining drivers licenses will
have to be part of our efforts.
Amnesties for illegal aliens have helped, not hindered, terrorists.
The existence of a large illegal population clearly creates a host of
problems for the United States. Instead of enforcing the law, some have
suggested giving green cards to the illegals, thereby defining away the
illegal population and simplifying the work of interior enforcement.
Superficially appealing as this may be, it would not solve the problem
of future illegal immigration; after the last amnesty in 1986, the 2.7
million illegals who were given green cards were entirely replaced by
new illegal aliens within less than 10 years. While the events of 9/11
significantly reduced political support for what had been growing
momentum to grant amnesty to Mexican and perhaps other illegals, the
idea continues to be suggested; some have even argued after 9/11 that
granting amnesty would be helpful to national security because it would
allow law enforcement to know who is in the country. For this reason
some amnesty advocates have even taken to calling it a ``registration''
of illegal aliens. However, in the past, amnesties have helped
terrorists, and not impeded them in any way.
Mahmud ``The Red'' Abouhalima, an Egyptian illegal alien working as
a cab driver in New York, received amnesty under the 1986 Immigration
and Reform and Control Act, falsely claiming to be an agricultural
worker. Given limited resources, it was not possible to investigate or
even verify the stories of the millions who applied for amnesty. As a
result, the vast majority who applied for the amnesty were approved,
including huge numbers of fraudulent applicants. Issuing Mahmud
Abouhalima a green card facilitated his terrorism because he could then
work at any job he wished and was able to travel to and from the United
States freely. In fact, according the October 4, 1993, issue of Time
magazine, it was only after he received his green card in 1990 that he
made several trips to Pakistan, where he received combat training.
Thus, the 1986 amnesty is what made his training by al Qaeda possible.
Had Abouhalima not been given permanent residency, he would not have
been able to travel abroad and become a trained terrorist.
The case of Mohammed Salameh, who rented the truck used in the 1993
World Trade Center bombing, shows why an amnesty will not hinder
terrorists. Salameh's application for amnesty was denied because he was
not as adept at making fraudulent claims as was Abouhalima. The INS was
able to do its job in his case and rejected his application on its
face. However, because there was no mechanism in place to force people
who are denied amnesty to leave the country, he continued to live and
work in the United States illegally and ultimately take part in
terrorism. Thus, in the past terrorists who applied for amnesty either
received it, making their operations easier, or, when turned down,
simply continued to engage in terrorism unhindered.
In sum, the last amnesty only helped terrorists and did nothing to
hinder those involved in the first World Trade Center bombing. If we
are to have an amnesty, then at the very least we first need to devote
vastly more resources to interior enforcement, including detention
space and INS agents assigned to investigate applications and to detain
and remove those found ineligible.
conclusion
Although the national security, economic, and fiscal arguments
against illegal immigration are overwhelming, many people still might
argue that there is little that can be done about this situation. In
fact, illegal immigration isn't nearly as intractable a problem as it
may seem. The INS estimated several years ago that each year roughly
150,000 illegal aliens leave the country on their own, another 200,000
or so get green cards as part of the normal ``legal'' immigration
process, 50,000 illegals are deported, and about 20,000 die. In sum, at
least 400,000 people leave the illegal-alien population each year.
Of course, something like 800,000 new illegals arrive annually, and
thus the total illegal population continues to grow. But the numbers
leaving the illegal population are still huge, and we can use this fact
to our advantage. If we significantly reduce the number of new illegal
aliens entering the country and increase the number who go home, even
if only modestly, we can engineer an annual decline in the illegal-
alien population, allowing the problem to become progressively smaller
over time through attrition.
Nor is this mere supposition. The special-registration process
applies to nationals of more than two dozen countries, among which
Pakistan has the largest illegal-alien population in the U.S.,
estimated to have been 26,000 in January 2000. Thousands of those
illegal aliens have left the country voluntarily, without having to be
deported, because of the special registration requirements. We can
expect that any other increases in interior enforcement efforts would
yield similar multiplier effects, with each illegal alien actually
apprehended causing many more illegals to leave on their own.
Strict enforcement of the law overseas, at the border, and in the
interior of the United States can help restore order to our anarchic
immigration system and is one of the most effective means we have of
reducing the threat from foreign-born terrorists. Failure to develop a
vigorous interior enforcement system will result in the continual
increase of the illegal alien population, imposing significant costs on
unskilled American workers, taxpayers, and, in the long-run, American
business. By enforcing immigration laws we can improve the lives of the
working poor, save taxpayers money, and help protect the safety of our
homes and families.
Mr. Hostettler. Thank you, Mr. Krikorian.
Mr. Danahey, you are free to testify. Thank you for your
flexibility once again in your schedule.
STATEMENT OF TIMOTHY J. DANAHEY, NATIONAL PRESIDENT, FEDERAL
LAW ENFORCEMENT OFFICERS ASSOCIATION
Mr. Danahey. Good morning, Mr. Chairman, and distinguished
Members of the Subcommittee. I am honored to testify on such an
important and vital subject.
The Federal Law Enforcement Officers Association, FLEOA, is
a voluntary, nonpartisan professional organization. FLEOA
currently represents over 19,000 Federal law enforcement
officers.
As a national officer of FLEOA, I represent many of the
outstanding men and women who enforce our Nation's immigration
laws. These men and women risk their lives every day in an
environment that is increasingly violent.
To make this mission more efficient, while restoring public
confidence in immigration enforcement, FLEOA would like to see
the following issues, matters of concerns and problems
addressed in the creation of the Department of Homeland
Security.
General arrest authority. Under the former INS, a key
provision of the Immigration Act of 1990 has yet to be
implemented. The authority granting INS law enforcement
officers general arrest authority has never been implemented.
The Department of Homeland Security, and specifically ICE,
should implement the regulations as stated in law to give
agents/officers general arrest authority. It is our
understanding that U.S. Customs agents already possess this.
Training. Presently, the former INS special agents, 1811s,
have been hired from positions such as immigration inspectors,
deportation officers, and Border Patrol agents. FLEOA
recommends that all special agents who have not received the
investigations training, such as the one offered at the Federal
Law Enforcement Training Center, FLETC, and the Criminal
Investigator Training Program, CITP, be given transitional
training courses so that they may be on par with U.S. Customs
special agents.
Cross-training of special agents previously employed by the
former INS and U.S. Customs Service should begin immediately.
We feel that cross-training of agents is absolutely essential.
We note there is no substitute for personnel resources.
We recommend a specific standardized training program be
developed and implemented relating to each job classification
within ICE. If individuals transfer within job classifications
within the Department of Homeland Security, we recommend that
they receive training in a transitional program designed to
accommodate each classification, such as inspectors to
deportation, or deportation to special agent.
Equal pay. As noted in the current Homeland Security
statute, pay parity is a major concern. A journeyman INS
special agent is paid a full grade lower than a U.S. Customs
special agent. The problems associated with this are self-
evident. We recommend an immediate across-the-bard increase for
all INS special agents, as well as all agents currently
assigned the 1811 job classification within the DHS. With less
than 2,000 special agents nationwide, the cost is minimal.
Interior enforcement. Currently, the number of aliens
illegally in the United States is estimated at about 8.5
million, or 28 percent of the foreign-born population in the
United States.
As the former INS investigations and detention and removal
component transition to ICE, we note the concerns raised in a
2002 GAO report entitled, ``Immigration Enforcement, Challenges
to Implementing the INS Interior Enforcement Strategy'', remain
the same today. In this report, the GAO noted that having an
effective interior enforcement strategy is an essential
complement to having an effective border strategy. The GAO
stated that the former INS faced numerous and daunting
enforcement issues, such as the potential pool of removable
criminal aliens and fugitives that number in the hundreds of
thousands.
Using the events of September 11th as a barometer, we can
clearly see what the lack of commitment to the base immigration
mission yields.
If they have not already done so, we recommend that ICE
immediately create a planning and policy formulation office.
The planning and policy functions should succinctly and
articulately state the ICE mission and/or missions. This stated
mission should chain-drive the budget formulation, rather than
the budget process driving the stated mission, as was the case
with the former INS.
ICE needs to address problems concerning interior capacity
issues in relation to the National Security Entry/Exit
Registration System, NSEERS, Student and Exchange Visitor
Information System, SEVIS, and other law enforcement agencies
referrals. Budget formulation, budget execution, resource
deployment, personnel staffing, position management and
position classification must address the lack of special
agents, deportation officers, and other clerical staff actually
in place to address leads from NSEERS and SEVIS, as well as
from sources including Federal, State and local law enforcement
agencies. We caution that, as in the past, these resources have
not been developed at the expense of anti-smuggling, fraud, and
other complex caseload reasons.
In regard to the interior immigration law enforcement
mission, we recommend that a commitment be made to deal with
complex, protracted criminal cases,such as alien smuggling/
human trafficking cases, immigration fraud cases, and NSEERS
and SEVIS related tracking investigations.
We recommend that these investigations be conducted by the
special agent 1811 component of ICE. Secondly, the
administrative functions of interior enforcement such as
administrative jail cases, the Institutional Hearing Program,
and other law enforcement referrals, should be given the same
commitment.
To see that criminal cases generated from ICE special
agents are given consideration in the ever-competitive world of
Federal law enforcement, we recommend that an Assistant United
States Attorney in each United States Attorney Office be
dedicated to immigration enforcement similar to those dedicated
for asset forfeiture matters.
To accomplish its immigration enforcement mission, ICE
would need to increase staffing levels by 100 percent in both
the investigations program and the detention and removal
program. An increase in special agents from its current level
of approximately 2,000 to 4,000 would cost approximately
$234,078,000, according to modular costs. An increase in
deportation officers to 2,000 officers would be needed to
handle the current immigration enforcement workload, and again,
according to modular costs, would cost approximately
$241,054,000.
Alien smuggling. The GAO noted in a 2000 report entitled,
``Alien Smuggling: Management and Operational Improvements
Needed to Address Growing Problem'' that without improvements
in its investigations and intelligence programs, INS' ability
to disrupt and deter increasingly sophisticated and organized
alien smugglers and dismantle their organizations will continue
to be hampered.
To assist the alien smuggling mission, ICE needs to think
with some breadth and depth of vision. No longer can we think
from a narrow, blinded point of view. We recommend the
consolidation of the overseas operations at the Border
Transportation Security directorate level, since they involve
elements of the ICE and the CBP mission. These functions should
include oversight of visa issuance at overseas posts and the
headquarters coordination of all alien smuggling
investigations.
In a 2002 report entitled, ``Immigration Benefit Fraud,
Focused Approach Needed to Address Problems'', the GAO noted
that the former INS did not know the extent of the immigration
benefit fraud problem. However, reports and statements from
former INS officials indicated that the problem is pervasive
and significant and will increase as smugglers and other
criminal enterprises use fraud as another means of bringing
illegal aliens, including criminal aliens, terrorist and
foreign intelligence agents into the United States.
In 2002, FLEOA testified that it was our view that the INS
has lost the confidence of the American people. Noting that
following a GAO report in 1991, entitled ``Immigration
Management: Strong Leadership and Management Reforms Needed to
Address Serious Problems,'' the INS undertook administrative
reform in 1994. Again in 1997, the GAO issued a report
entitled, ``Immigration Management, Follow-up on Selected
Problems.'' This again prompted INS reform in 1998. Since the
GAO report in 1991, there has been a succession of negative and
critical reports in regard to the former INS by numerous other
governmental and private entities.
Mr. Hostettler. Mr. Danahey, could you summarize?
Mr. Danahey. Yes, sir.
The immigration issue is based upon law and should not be
dictated by the politics of the moment. On behalf of the
Federal Law Enforcement Officers Association, and the many
dedicated men and women who risk their lives enforcing
immigration laws, I appreciate your time and attention.
[The prepared statement of Mr. Danahey follows:]
Prepared Statement of Timothy Danahey
Good afternoon, Mr. Chairman and distinguished Members of the
Subcommittee. I am honored to testify on such an important and vital
subject. I respectfully request my written submission be admitted to
the record.
The Federal Law Enforcement Officers Association--FLEOA, is a
voluntary, non-partisan professional association. FLEOA currently
represents over 19,000 federal law enforcement officers and is the
largest association for federal officers of its kind. Several years
ago, FLEOA joined with all of the major state and local national police
associations to form the Law Enforcement Steering Committee. The Law
Enforcement Steering Committee includes the following prominent and
important organizations: Fraternal Order of Police, National Troopers
Coalition, Major Cities Chiefs of Police, Police Executive Research
Forum, the National Association of Police Organizations, National
Organization of Blacks in Law Enforcement, the International
Brotherhood of Police Organizations and the Police Foundation. In
becoming a part of this group, federal agents were able to add our
voices to those of the over half a million state and local officers
already commenting on the issues that our Association considers to be
of greatest importance. I tell you today, as I have told our membership
and the Law Enforcement Steering Committee for the past several years
that the continuing revitalization of immigration law enforcement is
one of our highest priorities. A year ago FLEOA testified before this
committee for the seventh time imploring this committee to recommend a
legislative restructuring of the Immigration and Naturalization Service
(INS). FLEOA believes that the creation of the Department of Homeland
Security (DHS) and the abolishment of the INS is exactly what were
needed.
It was FLEOA's belief that the revitalization of our nation's
immigration law enforcement will occur through passage and complete
implementation of the Homeland Security Act of 2002. We appreciated the
committee seeking our input on concerns we wish to discuss in the
spirit of assisting you in making the Department more efficient and
effective.
FLEOA believes the merger of several Federal law enforcement
agencies into this Department was a vital step towards correcting many
of the obstacles that have arisen over the years within Federal law
enforcement. We, America's Federal Agents, pledge to work with you to
fulfill the expectations of the public.
I want to take a moment to comment on the creation of the
Department of Homeland Security and, specifically, the creation of the
Bureau of Immigration and Customs Enforcement (ICE). Upon hearing of
the Administration's intent to abolish the INS, I was asked by a
colleague my thoughts on this drastic reform. I responded by relaying a
popular Churchill story in which a man received a telegram saying his
mother-in-law had died and asked for instructions. The man wired back:
``Embalm, cremate, bury at sea. Take no chances.''
As a National Officer of FLEOA, I represent many of the outstanding
men and women who enforce our Nation's Immigration Laws. These men and
women risk their lives every day in an environment that is increasingly
violent. To make this mission more efficient while restoring the public
confidence in immigration enforcement, FLEOA would like to see the
following issues, matters of concerns and problems addressed in the
creation of Department of Homeland Security.
general arrest authority
Under the former INS, a key provision of the Immigration Act of
1990 has yet to be implemented. The authority granting INS law
enforcement officers general arrest authority has never been
implemented. The Department of Homeland Security and specifically, ICE
should implement the regulations (as stated in law) to give agents/
officers general arrest authority. It is our understanding that
currently US Customs agents have it. FLEOA recommends that ICE begin
the process to implement general arrest authority provisions and extend
protection against legal liability to all current ICE Officers.
training
Professionalism must be enhanced in the new department of Homeland
Security. One means to accomplish this would be through enhanced
training of all Special Agents (1811s), Deportation Officers, and
analysts. We recommend, strongly, that ICE adopt the USDA Graduate
School's program for the training of government analysts in legal,
technical, and management areas.
Presently, the former INS Special Agents (1811s) have been hired
from positions such as Immigration Inspectors, Deportation Officers and
Border Patrol Agents. FLEOA recommends that all Special Agents who have
not received the investigations training, such as the one offered at
the Federal Law Enforcement Training Center (FLETC), the Criminal
Investigator Training Program (CITP), be given a transitional training
course so that they may be on par with US Customs Special Agents. We
can no longer rely on the past INS model of On-The-Job (OJT) training,
which is beneficial only as it complements CITP training.
Cross training of Special Agents previously employed by the former
INS and the US Customs Service should begin immediately. While we feel
that cross training of agents is absolutely essential, we note that
there is no substitute for personnel resources. For too long, we have
attempted to accomplish immigration law enforcement without admitting
the need for the requisite personnel enhancements. Training for agents,
supervisors and upper management should be conducted in an academy type
setting, away from day-to-day distractions.
We recommend a specific standardized training program be developed
and implemented relating to each job classification within ICE. If
individuals transfer within job classifications within The Department
of Homeland Security we recommend that they receive training in a
transitional program designed to accommodate each classification such
as Inspections to Deportation or Deportation to Special Agent. Under
the former INS, an individual who transferred from a Deportation
Officer to the Special Agent position received no job specific training
after they transferred.
We recommend that all law enforcement personnel hired in the future
within the Department of Homeland Security undergo a standardized
training program while at the academy. Upon completion of this training
they should receive advance training specific to each job
classification.
It is reasonable to note that although many former INS Special
Agents currently lack the CITP certificate, the training they did
receive in the Border Patrol Academy and the Immigration Officers
Academy as well as the intensive Spanish language immersion program,
was as difficult and demanding as any currently offered at the current
Federal Law Enforcement Academy training.
equal pay
As noted in the current Homeland Security statue, pay parity is a
major concern. Currently, a journeyman INS Special Agent is paid a full
grade lower than a US Customs Special Agent. The problems associated
with this are self-evident. We recommend an immediate across the board
increase for all INS Special Agents as well as all agents currently
assigned the 1811 job classification within the DHS. With less than
2000 Special Agents nationwide, the cost is minimal.
FLEOA has advocated for many years legislation addressing the pay
disparity existing between the public and private sectors. We have
brought to your attention the problems this poses for effective Federal
law enforcement. We would like to take time now to remind this body of
the need to pass the current House Resolution H.R. 466, which will
amend the Federal Law Enforcement Pay Reform Act of 1990. This Bill
will do two things: adjust the locality pay percentages for America's
federal agents and allow mid to high-level supervisors to earn up to
25% of their salaries in overtime. Additionally, this needed
legislation will enable Federal law enforcement agencies to recruit and
retain the best and brightest candidates. Today, there is very little
incentive to progress to upper management positions.
interior enforcement
Currently the number of aliens illegally in the United States is
estimated at about 8.5 million or 28% of the foreign-born population in
the United States. Researchers have noted the difficulty in determining
the flow of undocumented aliens into the country. However, if the
numbers described above are ``in the ball park'', i.e. there are in
fact 8-9 million undocumented aliens in the U.S. today, the annual
increase in the undocumented population must be in excess of 500,000
per year and could possibly be higher for recent years. This is a
surprising number, at least to most analysts, who have been working
with empirically based estimates of this clandestine population.
The results from Census 2000 call into question some of the basic
information regarding immigration which we relied upon in the past. The
surprise figures from the Census suggest strongly that immigration
levels, particularly undocumented and temporary immigration, are
substantially higher than most had suspected. With these numbers in
mind we recommend that in addition to its customs enforcement
responsibilities, ICE's main responsibility should be to the ``base''
Immigration Mission--starting with the development of a meaningful,
comprehensive, integrated enforcement strategy. Preservation of the
integrity of the immigration processes and systems must not be
forgotten as our great Nation rushes to embrace the counter-terrorism
mission. We should remember that part--a major part--of the reason we
have a terrorism problem is because we neglected the staffing and
support of components devoted to enforcement of the Nations basic
immigration laws.
As the former INS Investigations and Detention and Removal
components transition to ICE, we note the that concerns raised in a
2002 GAO Report titled ``Immigration Enforcement, Challenges to
Implementing the INS Interior Enforcement Strategy'', remain the same
today. In this report, the GAO noted that having an effective interior
enforcement strategy is an essential complement to having an effective
border strategy. The GAO stated that the former INS faced numerous and
daunting enforcement issues such as, the potential pool of removable
criminal aliens and fugitives number in the hundreds of thousands. The
number of individuals smuggled into the United States has increased and
alien smuggling has become more sophisticated, complex, organized and
flexible. Thousands of aliens annually seek immigration benefits
fraudulently. The GAO concluded that the former INS's tasks with regard
to interior enforcement are considerable given the nature, scope, and
magnitude of illegal activity. The GAO found that the former INS was
and in our view today ICE is an agency that faces significant
challenges in appropriately staffing program areas, providing reliable
information for program management, establishing clear and consistent
guidance for working-level staff to do their jobs consistent with the
goals of the program, promoting collaboration and coordination within
ICE and with other agencies, and developing outcome-based measures that
would indicate progress toward the strategy's objectives. ICE needs to
address these issues within its immigration law enforcement component
immediately if it is to achieve full program potential.
Using the events of September 11 as a barometer, we can clearly see
what the lack of commitment to the base immigration mission yields. A
study of terrorism conducted by the Center for Immigration Studies on
U.S. soil over the past decade concludes that including the September
11th hijackers, 48 foreign-born militant Islamic terrorists have been
charged, convicted, plead guilty, or admitted to involvement in
terrorism within the U.S. since 1993. Almost all of these individuals
are thought to be linked to Osama bin Laden's al Qaeda organization.
The study further concluded that foreign-born militant Islamic
terrorists have used almost every conceivable means of entering the
United States including sneaking across the Northern border of the
United States. A true comprehensive, integrated interior enforcement
strategy must be developed to provide a blueprint for the new ICE. In
efforts to avoid ``stove piping,'' the Department of Homeland Security,
Office of the Secretary, should ensure that a mechanism exists to
REQUIRE cooperation between ICE, CBP and CIS. To cite an example where
this type of coordination is currently lacking between DHS components,
members working in a key smuggling corridor have indicated that the
Border Patrol Sector has intentionally excluded ICE Special Agents from
smuggling related events it encounters during the course of its routine
patrol duties.
If they have not already done so, we recommend that ICE immediately
create a planning and policy formulation office. The planning and
policy functions should succinctly and articulately state the ICE
mission and/or missions. This stated mission should chain-drive the
budget formulation, rather than the budget process driving the stated
mission, as was the case with the former INS.
ICE needs to address problems concerning interior capacity issues
in relation to National Security Entry Exit Registration System
(NSEERS), Student and Exchange Visitor Information System (SEVIS) and
other law enforcement agencies referrals. Budget formulation, budget
execution, resource deployment, personnel staffing, position management
and position classification must address the lack of Special Agents,
Deportation Officers, and other clerical staff actually in place to
address ``leads'' from NSEERS and SEVIS, as well as from sources
including federal, state, and local law enforcement agencies. Systems
such as NSEERS or SEVIS will be rendered toothless if ICE doesn't have
the interior enforcement resources to deal with NSEERS or SEVIS
information on overstays, status violators and other law enforcement
referrals. Without any consequences attached, we have only created the
enforcement equivalent of a Potemkin Village. We CAUTION as in the past
these resources must not be developed at the expense of anti smuggling,
fraud, and other complex casework resources.
In regard to the interior immigration law enforcement mission we
recommend that a commitment be made to deal with complex, protracted
criminal cases, such as alien smuggling/human trafficking cases,
immigration fraud cases, and NSEERS and SEVIS related tracking
investigations. We recommend that these investigations be conducted by
the Special Agent (1811) component of ICE. Secondly, the administrative
functions of interior enforcement such as administrative jail cases,
Institutional Hearing Program (IHP) and other law enforcement referrals
should be given the same commitment. FLEOA recommends that the
administrative mission of ICE immigration enforcement such as IHP and
county jail cases be assigned to the Detention and Removal component.
We note that these are related-but-different programs. Both missions
must be accomplished--and one cannot be emphasized at the expense of
the other.
To see that criminal cases generated from ICE Special Agents are
given consideration in the ever competitive world of federal law
enforcement, we recommend that an Assistant United States Attorney in
each United States Attorney Office be dedicated to immigration
enforcement similar to those dedicated for asset forfeiture matters. We
would ask for 50% of his/her time at a minimum be devoted to
immigration related matters.
To allow ICE Special Agents to focus on the complex criminal
matters as well as matters relating to national security it is
essential that ICE Special Agents be relieved of all administrative
jail duties. ICE Special Agents should no longer be utilized to
accomplish routine administrative activities such as processing aliens
under the NSEERS program or approving schools under the SEVIS program.
These time consuming duties, as well as routine deportation escorts,
would be better accomplished by the Detention and Removal component of
ICE or through contracts with non-government entities and/or rehired
annuitants. To accomplish its immigration enforcement mission, ICE
would need to increase staffing levels by 100% in both the
Investigations Program and the Detention and Removal Program. An
increase in Special Agents from its current level of approximately 2000
to 4000 would cost approximately $234,078,000 according to modular
costs. An increase in Deportation Officers to 2000 Officers would be
needed to handle the current immigration enforcement workload, and
again according to modular costs would cost approximate $241,054,000.
We should note that these numbers would only be realistic with a net
zero growth in the illegal alien population. Furthermore, ICE would
need to immediately revamp and streamline the former INS's enforcement
operations, directives and policies.
Our members in the field have continuously stated that one of the
greatest problems in enforcing our Nations Immigration Law is in the
area of detention and removal. Large amounts of illegal aliens are
released in some districts (as many as fifty a day) before ever seeing
an Immigration Judge. Lack of bed space is always cited as the reason.
Many of the available beds available for immigration detainees have
disappeared because of unrealistic ``Detention Standards'' imposed on
local and county jails that house federal inmates in 1998. We would ask
that these be relaxed or allow all existing jails some of which are
very old to be ``Grandfathered'' so that they need not apply all 39 of
these unworkable detention standards to housing immigration detainees.
One such jails, which supports the enforcement of the Northern Border
in the State of Vermont, is one of the only facilities in the State
that has room for immigration violators. It has space for INS detainees
and is favored by detainees but was removed from being able to hold
detainees more than 72 hours due to these detention standards. This
impedes immigration enforcement and increases costs. Many of these
jails have existed for decades without incident. Many illegal aliens
are released despite the fact that many do not have a valid, verifiable
address and are never heard from again. In simple terms, ICE needs to
learn how to detain and remove undocumented aliens.
alien smuggling
The GAO noted in a 2000 report titled ``Alien Smuggling: Management
and Operational Improvements Needed to Address Growing Problem'' that
without improvements in its Investigations and Intelligence Programs,
INS's ability to disrupt and deter increasingly sophisticated and
organized alien smugglers and dismantle their organizations will
continue to be hampered.
Again in a GAO Report on the former INS in 2002, the GAO was very
critical of the INS's ability to investigate alien smuggling groups,
stating that without improvements in its investigations and
intelligence programs, INS anti-smuggling efforts will continue to be
hampered in the face of the growing tide of aliens entering the United
States with the aid of smuggling organizations. The GAO went on further
to note that INS's alien smuggling investigative efforts have been
fragmented and uncoordinated.
Although the problems within the INS Anti-Smuggling program are
well documented, FLEOA recommends that ICE be the central investigative
agency for all human trafficking/alien smuggling investigations.
Currently, there is no stated mission involving the targeting of human
trafficking/alien smuggling organizations within ICE. Research
indicates that the majority of illegal entrants have utilized the
assistance of a smuggling organization to enter the United States. As
Congress has heard in previous expert testimony, alien smugglers have
developed dozens of alternative routes; fewer illegal immigrants come
in by ship or cross the United States Borders by land. They are
increasingly coming in by air. Utilizing stolen or counterfeited
passports, immigrants are allowed to board U. S. bound planes by
unsuspecting airline officials or by bribing foreign airport personnel.
We recommend that by making human trafficking/alien smuggling
investigations one of ICE's primary enforcement functions, the need
exists to immediately fund and staff this component to levels that
allow it to be effective. Research and experience has led us to believe
that the most effective means to enforce laws relating to human
trafficking/alien smuggling organizations would be to centralize all
human trafficking/alien smuggling investigations into one agency with
adequate staffing, funding and a strong headquarters component. It is
imperative this program be given the requisite attention.
To assist the alien smuggling mission, ICE needs to think with some
breadth and depth of vision. No longer can we think from a narrow,
blinded point-of-view. We recommend the consolidation of the overseas
operations at Border Transportation Security (BTS) directorate level,
since they involve elements of the ICE and CBP mission. These functions
should include oversight of visa issuance at overseas posts and the
headquarters coordination of all alien smuggling investigations.
FLEOA would like to bring to the committees attention a March 20,
2003, Washington Post article in which it noted that the Attorney
General had granted the FBI, the U.S. Marshal's Service and some local
law enforcement agencies authority to detain foreign nationals for
alleged immigration violations. The Attorney General has realized what
FLEOA has been saying for years, that immigration law enforcement has
been overlooked and that the approximately 2000 INS Special Agents
assigned to interior enforcement matters in not adequate.
We should resist any attempts to divide the immigration law
enforcement mission into many agencies. ICE should be the clearinghouse
for all immigration related law enforcement issues. We should keep in
mind the 1991 GAO report regarding immigration law enforcement. The GAO
report stated that INS leadership had allowed the INS organizational
structure to become decentralized without adequate controls. The field
structure designed to carry out INS enforcement functions was
bifurcated between districts and Border Patrol Sectors, resulting in
uncoordinated, overlapping programs. It is our belief that any attempts
to integrate duties historically executed by one agency into many, will
only make matters worse and again lessen the quality and quantity of
immigration law enforcement. The solution, as we see it, is resources,
specifically, additional immigration 1811 Special Agent positions, who
are trained and experienced in the enforcement of the immigration laws
of the United States. Anything less, would not be fair to the legal
immigrants who enter this nation each and every day.
benefit application fraud
In a 2002 GAO report titled ``Immigration Benefit Fraud, Focused
Approach Needed to Address Problems''. The GAO noted that the former
INS did not know the extent of the immigration benefit fraud problem.
However, reports and statements from former INS officials indicated
that the problem is pervasive and significant and will increase as
smugglers and other criminal enterprises use fraud as another means of
bringing illegal aliens, including criminal aliens, terrorist, and
foreign intelligence agents into the United States. The GAO reported
that the former INS interior enforcement strategy failed to lie out a
comprehensive plan to identify how components within and among service
centers and district offices are to coordinate their immigration
benefit fraud investigations.
In a 1997 Washington Post article, Bill Branigin reported, ``that
in most cases suspected benefit fraud is never investigated''.
Branigin, states, ``that the INS says, it lacks the manpower and
resources to do so, more than half the fraud cases referred to it go
unadddressed ``. INS officials stated further, ``we have a large number
of suspected fraudulent applications in our hands that we can't even
touch''.
The GAO notes that efforts to address benefit fraud were given a
lower priority within the former INS, and resources devoted to it were
limited. The GAO report concluded that immigration benefit fraud has
been a long-standing problem for the former INS that has grown more
intense and serious as criminal aliens and terrorists have used the
application process for illegal activities, such as crimes of violence,
narcotics trafficking, and terrorism. Institutionally, the former INS
has not done much to combat this significant problem, which threatens
the integrity of the legal immigration system because it results in
granting valuable benefits to ineligible aliens. We recommend that ICE
immediately prioritize investigations targeting Immigration Benefit
Fraud and adopt the recommendations made in the GAO report.
If ICE is to accomplish the tasks outlined above in both the
enforcement of alien smuggling and benefit fraud statutes, we recommend
that ICE increase case funding to the extent of 5 million per year. As
Congress has heard in previous testimonies, the former INS had
consistently under funded or misdirected criminal case related funding.
management
In April of 2002, FLEOA testified that it was our view that the INS
has lost the confidence of the American people. Noting that following a
GAO report in 1991, entitled ``Immigration Management: Strong
Leadership and Management Reforms Needed to Address Serious Problems,''
the INS undertook an administrative reform in 1994. Again in 1997, the
GAO issued a report ``Immigration Management, Follow-up on Selected
Problems''. This again prompted INS reform in 1998. Since the GAO
report in 1991, there has been a succession of negative and critical
reports in regard to the former INS by numerous other governmental and
private entities. In March, 6o Minutes broadcast a report in which it
noted ``few if any federal agencies have a worse record than the INS
when it comes to mismanagement, corruption, inefficiency and
ineptitude''. A few days after that report is was reported that the INS
notified a Florida flight school that student visas for two of the
September 11 hijackers had been approved.
Based upon the above stated accounts and numerous other accounts
that are similar, it is our view that careful consideration should be
given in the selection of former INS managers to management positions
within ICE. We recommend that only individuals with extensive 1811
experience should hold all future appointments to Special Agent in
Charge (SAC) positions. Furthermore, it is recommended that all SAC's
be appointed to a different geographical location in order to ensure
standardization while eliminating questions of nepotism. This will
ensure the promotion of seasoned and well-rounded managers.
Rotation of personnel between HQ and the field must be a
systematic, sincere, and substantive policy. While this was first
recommended 63 years ago (page 143 of the Secretary of Labor's Report
on the Reorganization of INS, dated 1940--also known as the ``Dimock
Report)--it never really happened. We recognize that this now is
mandated by statute. Further, positions that are redundant, such as
OCDETF coordinators from both Customs and INS should be eliminated.
As Congress has heard in previous testimony, Federal Agents cannot
do their jobs properly with current restrictive policies put in place
by Headquarters managers overly concerned with the perceptions of
enforcement activities in the media. Our members have provided various
examples as to these restrictive policies and their effects on job
performance and morale. In one case, a Deportation Officer noted that
in his Region, a policy was put out on how Deportation Officers can
conduct fugitive operations. What was once a routine duty, going out in
the field, running down leads, locating and apprehending fugitive
aliens, now requires that an ``operation plan'' be written up and
signed off by a supervisor, even for just one alien. Special Agents in
one former INS Region are no longer able to search for fugitive aliens
after sundown, to do so would require written approval by the Assistant
District Director for Investigations.
In addition, Special Agents must also write up and get approved, at
numerous levels, an ``operation plan'' to apprehend any alien--even if
a probation officer calls to say a criminal alien is sitting in his
office. In one former INS District, when agents began concentrating on
arresting sex offenders, the former District Director put out a policy
that agents couldn't apprehend any ``breadwinners.'' This policy
prevented a gang unit agent from apprehending a gang member, who the
very next week, shot and killed an innocent bystander at a taco stand.
Incidents like this have led to the decline of morale. In a November
2002, directive promulgated by the former INS Headquarters, it was
mandated that any attempt to operate an undercover operation utilizing
smuggled illegal aliens will be accompanied by the illegal alien's
identity data and immigration status before the operation will be
approved. The use of an undercover operation in the first place assumes
the lack of knowledge in regards to these details making this the
equivalent of approaching a drug trafficker and asking him/her to
provide the name and date of birth of the trafficker that will bring
the narcotics into the US.
In essence, the work environment for immigration law enforcement
has changed drastically. The statutory mandates as well as funding for
immigration law enforcement have similarly undergone dramatic changes,
yet the former INS remained stagnant, at best, and highly resistant to
those very changes.
I respectfully submit to this distinguished Subcommittee today that
the events of September 11, 2001, are proof positive that such an
integral part of our homeland defense must be professional in every
sense of the word and will thereby be successful.
immigration enforcement can succeed
Immigration law enforcement must be both professionalized and
depoliticized. We must no longer confuse effective immigration law
enforcement as being anti-immigration.
Yes, we are a nation of immigrants, but as this nation was built on
its immigration, its immigrants were inspected and documented. Today's
flow of immigration remains increasingly clandestine, undetected and in
some cases deadly, taking advantage of our benevolence. We are a nation
that respects the rule of law above all else. Effective immigration law
enforcement should be looked upon as a safeguard for those who seek
shelter and a better life in America. Effective immigration enforcement
will decrease the ability of unscrupulous alien smugglers, document
vendors, employers and immigration consultants to jeopardize our
safety, or to pray upon the immigrant's desperation in seeking a better
life in America.
The consolidation of enforcement functions within the Department of
Homeland Security and ICE will not only alleviate the problem of
overlapping enforcement programs, but will enhance the ability to
maintain consistent service and enforcement postures throughout the
United States.
The establishment of integrated sub-units under ICE at the field
level would ensure an appropriate level of specialization while
maintaining flexibility, and would facilitate a cooperative and
balanced approach.
FLEOA recommends the establishment of a Chief Enforcement Officer
who supervises all enforcement components in a particular field
enforcement sector, who reports to ICE Headquarters, is an idea whose
time has come.
Congress must begin to strike a balance between enforcement on our
borders and enforcement in the interior. Clearly, the catastrophic
attacks of September 11th demonstrated that a total focus on the first
line of defense will lead to only a hollow victory. Word of mouth
travels rapidly back to the source countries that one must merely make
it across the border in order to obtain this new gift of unsanctioned
amnesty. In short, we will never restore domestic tranquility until we
begin to establish meaningful rather than token control over our
borders and the interior of the United States through comprehensive
immigration law enforcement.
Mr. Chairman, I would respectfully submit that upon creation of the
Bureau of Immigration and Customs Enforcement, it is not necessary to
reinvent the wheel but merely adopt tried and true successful practices
of modern day law enforcement entities. FLEOA recommends strongly the
Implementation of Enforcement Sectors within the ICE and CBP. This
would facilitate a cooperative and balanced approach to enforcement of
our nation's immigration laws. In turn, you will then begin to see the
accountability and productivity that our citizens not only deserve but
also, are demanding of immigration enforcement.
The immigration issue is based upon law and should not be dictated
by the politics of the moment. FLEOA would stress that the Director of
the new Enforcement Bureau must be guaranteed freedom from political
interference. Without equal emphasis in ICE for immigration law
enforcement, it is unlikely that the legislative innovations against
international terrorism passed by the 104th Congress in 1996 will ever
be used to their full potential. Only through streamlining the
bureaucracy, overcoming institutional inertia, and establishing balance
through a separation of functions, can modern day immigration law
enforcement be successful.
On behalf of the Federal Law Enforcement Officers Association, and
the many dedicated men and women who risk their lives enforcing our
immigration laws, I appreciate your time and attention, and the
opportunity to share our views; these employees support what you are
doing. I will be happy to answer any questions you may have. Thank you.
Mr. Hostettler. Mr. Stana, you're free to testify. Once
again, thank you for your flexibility in your schedule and for
being here today.
STATEMENT OF RICHARD M. STANA, DIRECTOR, HOMELAND SECURITY AND
JUSTICE, U.S. GENERAL ACCOUNTING OFFICE
Mr. Stana. Thank you, Mr. Chairman, and Members of the
Subcommittee. I am pleased to be here today to discuss the
challenges facing the immigration interior enforcement
strategy.
This is essentially the same strategy that INS issued in
1999, and refocused following the events of 9/11. The strategy
is designed to identify and remove criminal aliens from the
United States, dismantle and diminish alien smuggling
operations, resolve community complaints about illegal
immigrants, detect benefit and document fraud, and deny
employers access to unauthorized workers. Historically,
interior enforcement programs have received about one-fifth of
the funding devoted to border enforcement.
My prepared statement discusses in detail the results of
our most recent work on these programs, and in my oral
statement I would like to focus on three main points.
First, like INS before it, ICE faces daunting interior
enforcement issues. For example, as Mr. Danahey mentioned, the
potential poll of removal criminal aliens and fugitives numbers
in the hundreds of thousands. Criminal aliens are incarcerated
in hundreds of Federal, State and local facilities, while
others are fugitives at large across the country. The number of
individuals smuggled into the United States has increased
dramatically, and alien smuggling has become more
sophisticated, complex, organized and violent. Annually,
thousands of aliens seek immigration benefits, such as work
authorization and change of status, and some of these aliens
use the benefits to enable them to conduct criminal activities.
Hundreds of thousands of aliens unauthorized to work in the
United States have used fraudulent documents to circumvent the
process designed to prevent employers from hiring them. In some
instances, such aliens have sought and obtained employment in
sensitive industries. Given the nature, scope and magnitude of
these issues, ICE needs to ensure that it's making the best use
of its limited enforcement resources.
Second, our work has disclosed fundamental management
challenges that affect the interior enforcement programs and
need to be addressed by ICE as it inherits this responsibility.
The following four examples illustrate the need for
improvement.
The first example: In several areas we noted that INS did
not believe it had sufficient staff to reach its program goals,
but it also lacked data on how best to use existing or
additional staff. In the criminal alien removal and criminal
benefit fraud programs, INS lacked good management information
to determine how many staff it needed and how to allocate
additional staff to best achieve program goals.
Example two: INS had long-standing difficulty developing
and fielding information systems to support its program
operations. Too often, program and management data were kept in
a variety of automated systems that were difficult to access
and analyze. Further, data gaps and inaccuracies put program
officials in a poor position to make fact-based decisions about
applicant eligibility and program management.
Example three: Working level guidance was sometimes lacking
or nonexistent. We found that guidance had not been established
for opening and prioritizing benefit fraud, and worksite
enforcement investigations, and without such guidance, ICE
cannot be assured that the highest priority cases are
investigated and resources are used optimally.
The final example: Performance measurement was sometimes
problematic. INS had not established outcome-based performance
measures for the interior enforcement strategy in general, or
for the individual programs in particular. Such measures would
have helped to assess the results of the programs and identify
areas for improvement.
We have made many recommendations to INS in these areas,
some of which have already been implemented, while others
require attention by ICE. In our strategic plan, we express our
intent to follow up on these issues and recommendations.
My last point is that since the attacks of 9/11, and with
the formulation of DHS, new management challenges have emerged.
For example, ICE needs to create appropriate cross-walks to
other DHS components to assure collaboration and cooperation,
such as to BCBP for alien smuggling and intelligence
initiatives, and to BCIS, for benefit application reviews. As a
second example, ICE needs to assure that its investigators
receive training to perform their expanded antiterrorism duties
effectively, while recognizing citizen and alien rights. And it
needs to reinforce management controls to help assure
compliance with DHS policies and procedures.
In closing, let me say that having an effective immigration
interior enforcement strategy is an essential complement to
having an effective border control strategy. ICE faces numerous
and difficult challenges, some long-standing and some new. In
the final analysis, successful implementation of the strategy
will depend largely on dedicated and sustained leadership and
management attention to resolving the problems.
This concludes my oral statement, and I would be happy to
answer any questions Members of the Subcommittee may have.
[The prepared statement of Mr. Stana follows:]
Prepared Statement of Richard M. Stana
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the Department of Homeland
Security's (DHS) Immigration Interior Enforcement Strategy, whose
implementation is now the responsibility of the Bureau of Immigration
and Customs Enforcement (BICE). As you know, this strategy was
originally created by the Immigration and Naturalization Service (INS).
This statement discusses the interior enforcement strategy and selected
issues pertaining to its implementation and management.
In the 1990s, INS developed a strategy to control illegal
immigration across the U.S. border and a strategy to address
enforcement priorities within the country's interior. In 1994, INS's
Border Patrol issued a strategy to deter illegal entry. The strategy
called for ``prevention through deterrence''; that is, to raise the
risk of being apprehended for illegal aliens to a point where they
would consider it futile to try to enter. The plan called for targeting
resources in a phased approach, starting first with the areas of
greatest illegal activity. In 1999, the INS issued its interior
enforcement strategy designed to deter illegal immigration, prevent
immigration-related crimes, and remove those illegally in the United
States. Historically, Congress and INS have devoted over five times
more resources in terms of staff and budget on border enforcement than
on interior enforcement.
In my statement today, I make the following points:
LINS's interior enforcement strategy was designed to
address (1) the detention and removal of criminal aliens, (2)
the dismantling and diminishing of alien smuggling operations,
(3) community complaints about illegal immigration, (4)
immigration benefit and document fraud, and (5) employers'
access to undocumented workers. These components remain in the
BICE strategy.
LINS faced numerous challenges in implementing the
strategy. For example, INS lacked reliable data to determine
staff needs, reliable information technology, clear and
consistent guidelines and procedures for working-level staff,
effective collaboration and coordination within INS and with
other agencies, and appropriate performance measures to help
assess program results. As BICE assumes responsibility for
strategy implementation, it should consider how to address
these challenges by improving resource allocation, information
technology, program guidance, and performance measurement.
LThe creation of DHS has focused attention on other
challenges to implementing the strategy. For example, BICE
needs to coordinate and collaborate with the Bureau of
Citizenship and Immigration Services (BCIS) for the timely and
proper adjudication of benefit applications, and with the
Bureau of Customs and Border Protection (BCBP) to assist in
antismuggling investigations and sharing intelligence. In
addition, BICE needs to assure that training and internal
controls are sufficient to govern investigators' antiterrorism
activities when dealing with citizens and aliens.
My testimony today is based primarily on the results of work that
we have completed in recent years, namely, our February 1999 testimony
on INS's efforts to identify and remove criminal aliens,\1\ our April
1999 report on INS's worksite enforcement program,\2\ our May 2000
report on alien smuggling,\3\ our May 2001 report on the processing of
immigration benefits,\4\ our January 2002 report on immigration benefit
fraud,\5\ our March 2002 report on INS' Forensic Document
Laboratory,\6\ our November 2002 report on INS's alien address
information,\7\ and our January 2003 reports on major management
challenges and program risks at the Departments of Homeland Security
and Justice.\8\
---------------------------------------------------------------------------
\1\ U.S. General Accounting Office, Criminal Aliens: INS' Efforts
to Identify and Remove Imprisoned Aliens Continue to Need Improvement,
GAO/T-GGD-99-47 (Washington, D.C.: Feb. 25, 1999).
\2\ U.S. General Accounting Office, Illegal Aliens: Significant
Obstacles to Reducing Unauthorized Alien Employment Exist, GAO/GGD-99-
33 (Washington, D.C.: Apr. 2, 1999).
\3\ U.S. General Accounting Office, Alien Smuggling: Management and
Operational Improvements Needed to Address Growing Problem, GAO/GGD-00-
103 (Washington, D.C.: May 1, 2000).
\4\ U.S. General Accounting Office, Immigration Benefits: Several
Factors Impede the Timeliness of Application Processing, GAO-01-488
(Washington, D.C.: May 4, 2001).
\5\ U.S. General Accounting Office, Immigration Benefit Fraud:
Focused Approach Is Needed to Address Problems, GAO-02-66 (Washington,
D.C.: Jan. 31, 2002).
\6\ U.S. General Accounting Office, INS Forensic Document
Laboratory: Several Factors Impeded Timeliness of Case Processing, GAO-
02-410 (Washington, D.C.: Mar. 13, 2002)
\7\ U.S. General Accounting Office, Homeland Security: INS Cannot
Locate Many Aliens Because It Lacks Reliable Address Information, GAO-
03-188 (Washington, D.C., Nov. 21, 2002).
\8\ U.S. General Accounting Office, Major Management Challenges and
Program Risks: Department of Homeland Security, GAO-03-102 (Washington,
D.C., Jan. 2003); and Major Management Challenges and Program Risks:
Department of Justice, GAO-03-105 (Washington, D.C., Jan. 2003).
---------------------------------------------------------------------------
In these reports we made many recommendations to improve INS
operations. INS had implemented or was in the process of implementing
some of these recommendations. We plan to follow up on DHS plans to
improve the various programs.
components of the interior enforcement strategy
In January 1999, INS issued its Interior Enforcement Strategy. This
strategy focused resources on areas that would have the greatest impact
on reducing the size and annual growth of the illegal resident
population. Certain criteria were used to develop the priorities and
activities of the strategy. The criteria focused on potential risks to
U.S. communities and persons, costs, capacity to be effective, impact
on communities, potential impact on reducing the size of the problem,
and potential value for prevention and deterrence. The strategy
established the following five areas in priority order:
1. LIdentify and remove criminal aliens and minimize
recidivism. Under this strategic priority, INS was to identify
and remove criminal aliens as they come out of the federal and
state prison systems and those convicted of aggravated felonies
currently in probation and parole status.
2. LDeter, dismantle, and diminish smuggling or trafficking of
aliens. This strategic priority called for INS to disrupt and
dismantle the criminal infrastructure that encourages and
benefits from illegal migration. INS efforts were to start in
source and transit countries and continue inside the United
States, focusing on smugglers, counterfeit document producers,
transporters, and employers who exploit and benefit from
illegal migration.
3. LRespond to community reports and complaints about illegal
immigration. In addition to responding to local law enforcement
issues and needs, this strategic priority emphasizes working
with local communities to identify and address problems that
arise from the impact of illegal immigration, based on local
threat assessments.
4. LMinimize immigration benefit fraud and other document
abuse. Under this strategic priority, INS was to aggressively
investigate and prosecute benefit fraud and document abuse to
promote integrity of the legal immigration system.
5. LBlock and remove employers' access to undocumented workers.
The strategy emphasizes denying employers access to
unauthorized workers by checking their compliance with the
employment verification requirements in the Immigration Reform
and Control Act of 1986. Coupled with its efforts to control
smuggling activity, this effort could have a multiplier effect
on access of employers to illegal workers and on the overall
number of illegal residents in the country.
Figure 1 shows that INS had generally allocated its interior
enforcement resources consistent with these priorities and that the
workyears devoted to several of INS's interior enforcement efforts had
either declined or stayed about the same between fiscal years 1998 and
2002.
challenges to implementing the interior enforcement programs
Our work has shown that INS faced numerous daunting enforcement
issues, as will BICE as it assumes responsibility for the strategy. For
example, the potential pool of removable criminal aliens and fugitives
numbers in the hundreds of thousands. Many are incarcerated in hundreds
of federal, state, and local facilities, while others are fugitives at
large across the country. The number of individuals smuggled into the
United States has increased dramatically, and alien smuggling has
become more sophisticated, complex, organized, and flexible. Thousands
of aliens annually illegally seek immigration benefits, such as work
authorization and change of status, and some of these aliens use these
benefits to enable them to conduct criminal activities. Hundreds of
thousands of aliens unauthorized to work in the United States have used
fraudulent documents to circumvent the process designed to prevent
employers from hiring them. In many instances, employers are complicit
in this activity.
Given the nature, scope, and magnitude of these activities, BICE
needs to ensure that it is making the best use of its limited
enforcement resources. We found that fundamental management challenges
exist in several of the interior enforcement programs and that
addressing them will require the high-level attention and concerted
efforts of BICE.
Need for Better Staff Levels and Allocations
In several reports we noted that INS did not believe it had
sufficient staff to reach its program goals. Having data on how to
effectively allocate staff and placing sufficient staff in the right
locations is important if BICE is to achieve program goals. Staff
shortages had contributed to INS's inability to promptly remove the
majority of criminal aliens after they have completed their prison
sentences. In 1997 INS did not place into removal proceedings 50
percent of potentially deportable criminal aliens who were released
from federal prisons and state prisons from 5 states. In 1999 we
reported that, although the removal of criminal aliens was an INS
management priority, INS faced the same staff shortage issues in 1997
as it had in 1995. In particular, agent attrition--about one-third of
the workforce--continued to impede INS's ability to meet its program
goals. INS had told us that since 1997, the attrition rates of agents
in this program has stabilized and that, in fiscal year 2003, the
agents from this program would be reclassified as detention removal
officers, which INS believed should further help reduce attrition.
Even if INS had additional staff working in these program areas, it
lacked good management information to determine how many staff it
needed to meet its program goals and how best to allocate staff given
the limited resources it did have. With respect to its program for
removing incarcerated criminal aliens, INS told us that beginning in
fiscal year 2002, the agency implemented our recommendation to use a
workload analysis model. This was to help identify the resources the
agency needed for its criminal alien program in order to achieve
overall program goals and support its funding and staffing requests. We
have not reviewed this new model to ascertain its usefulness.
With respect to alien smuggling, INS lacked field intelligence
staff to collect and analyze information. Both 1998 and 1999 INS Annual
Performance Plan reports stated that the lack of intelligence personnel
hampered the collection, reporting, and analysis of intelligence
information. Although INS's Intelligence Program proposed that each
district office have an intelligence unit, as of January 2000, 21 of
INS's 33 districts did not have anyone assigned full-time to
intelligence-related duties. Our ongoing work at land ports of entry
shows this to be a continuing problem.
The worksite enforcement program received a relatively small
portion of INS's staffing and budget. In fiscal year 1998, INS
completed a total of 6,500 worksite investigations, which equated to
about 3 percent of the estimated number of employers of unauthorized
aliens. Given limited enforcement resources, BICE needs to assure that
it targets those industries where employment of illegal aliens poses
the greatest potential risk to national security. The program now has
several initiatives underway that target sensitive industries.
Need for Better Information Technology
INS had long-standing difficulty developing and fielding
information systems to support its program operations, and effectively
using information technology continued to remain a challenge. For
example, in 2002 we reported that benefit fraud investigations had been
hampered by a lack of integrated information systems. The operations
units at the four INS service centers that investigate benefit fraud
operate different information systems that did not interface with each
other or with the units that investigate benefit fraud at INS district
offices. As a result, sharing information about benefit applicants is
difficult. The INS staff who adjudicate applications did not have
routine access to INS's National Automated Immigration Lookout System
(NAILS). Not having access to or not using NAILS essentially means that
officers may be making decisions without access to or using significant
information and that benefits may be granted to individuals not
entitled to receive them. Thus, INS was not in the best position to
review numerous applications and detect patterns, trends, and potential
schemes for benefit fraud.
Further, in 2002 we reported that another INS database, the
Forensic Automated Case and Evidence Tracking System (FACETS), did not
contain sufficient data for managers to know the exact size and status
of the laboratory's pending workload or how much time is spent on each
forensic case by priority category. As a result, managers were not in
the best position to make fact-based decisions about case priorities,
staffing, and budgetary resource needs.
With respect to the criminal alien program, in 1999 we reported
that INS lacked a nationwide data system containing the universe of
foreign-born inmates for tracking the hearing status of each inmate. In
response to our recommendation, INS developed a nationwide automated
tracking system for the Bureau of Prisons and deployed the system to
all federal institutional hearing program sites. INS said that it was
working with the Florida Department of Corrections to integrate that
state's system with INS's automated tracking system. INS also said that
it planned to begin working with New York, New Jersey, and Texas to
integrate their systems and then work with California, Illinois, and
Massachusetts. We have not examined these new systems to determine
whether they were completed as planned or to ascertain their
effectiveness.
In 2000 we reported that INS lacked an agencywide automated case
tracking and management system that prevented antismuggling program
managers from being able to monitor their ongoing investigations,
determine if other antismuggling units were investigating the same
target, or know if previous investigations had been conducted on a
particular target. In response to our recommendation, INS deployed an
automated case tracking and management system for all of its criminal
investigations, including alien smuggling investigations. Again, we
have not examined the new system to ascertain its effectiveness.
Need for Better Guidance to Program Staff
Our review of the various program components of the interior
enforcement strategy found that working-level guidance was sometimes
lacking or nonexistent. INS had not established guidance for opening
benefit fraud investigations or for prioritizing investigative leads.
Without such criteria, INS could not be ensured that the highest-
priority cases were investigated and resources were used optimally.
INS's interior enforcement strategy did not define the criteria for
opening investigations of employers suspected of criminal activities.
In response to our recommendation, INS clarified the types of employer-
related criminal activities that should be the focus of INS
investigations.
INS's alien smuggling intelligence program had been impeded by a
lack of understanding among field staff about how to report
intelligence information. Staff were unclear about guidelines,
procedures, and effective techniques for gathering, analyzing, and
disseminating intelligence information. They said that training in this
area was critically needed.
Need for Better Performance Measures
INS had not established outcome-based performance measures that
would have helped it assess the results of its interior enforcement
strategy. For example, in 2000 we reported that while INS had met its
numeric goals for the number of smuggling cases presented for
prosecution in its antismuggling program, it had not yet developed
outcome-based measures that would indicate progress toward the
strategy's objective of identifying, deterring, disrupting, and
dismantling alien smuggling. This was also the case for the INS
intelligence program. INS had not developed outcome-based performance
measures to gauge the success of the intelligence program to optimize
the collection, analysis, and dissemination of intelligence
information.
In 2002 we reported that INS had not yet established outcome-based
performance measures that would help it assess the results of its
benefit fraud investigations. Additionally, INS had not established
goals or measurement criteria for the service center operations units
that conduct fraud investigation activities. INS's interior enforcement
strategy did not clearly describe the specific measures INS would use
to gauge its performance in worksite enforcement. For example, in 1999
we reported that the strategy stated that INS would evaluate its
performance on the basis of such things as changes in the behavior or
business practices of persons and organizations, but did not explain
how they expected the behavior and practices to change. And although
INS indicated that it would gauge effectiveness in the worksite area by
measuring change in the wage scales of certain targeted industries, it
left unclear a number of questions related to how it would do this. For
example, INS did not specify how wage scales would be measured; what
constituted a targeted industry; and how it would relate any changes
found to its enforcement efforts or other immigration-related causes.
The strategy stated that specific performance measurements would be
developed in the annual performance plans required by the Government
Performance and Results Act.
According to INS's fiscal year 2003 budget submission, the events
of September 11th required INS to reexamine strategies and approaches
to ensure that INS efforts fully addressed threats to the United States
by organizations engaging in national security crime. As a result, with
regard to investigating employers who may be hiring undocumented
workers, INS planned to target investigations of industries and
businesses where there is a threat of harm to the public interest.
However, INS had not set any performance measures for these types of
worksite investigations.
challenges faced by dhs relating to interior enforcement
Since the attacks of September 11, 2001, and with the formation of
DHS, a number of management challenges are evident. Some of the
challenges discussed above carry over from the INS, such as the need
for sound intelligence information, efficient use of resources and
management of workloads, information systems that generate timely and
reliable information, clear and current guidance, and appropriate
performance measures. Other challenges are emerging. These include
creating appropriate cooperation and collaboration mechanisms to assure
effective program management, and reinforcing training and management
controls to help assure compliance with DHS policies and procedures and
the proper treatment of citizens and aliens.
Need for Program Collaboration/Coordination
BICE will need to assure that appropriate cooperation and
collaboration occurs between it and other DHS bureaus. For example,
both the Border Patrol, now located in the Bureau of Customs and Border
Protection (BCBP), and BICE's immigration investigations program
conducted alien smuggling investigations prior to the merger into DHS.
These units operated through different chains of command with different
reporting structures. As a result, INS's antismuggling program lacked
coordination, resulting in multiple antismuggling units overlapping in
their jurisdictions, making inconsistent decisions about which cases to
open, and functioning autonomously and without a single chain of
command. It's unclear at this time how the anti-smuggling program will
operate under DHS. Should both BCBP's Border Patrol and BICE's
Investigations program continue to conduct alien smuggling
investigations, Under Secretary Hutchinson will need to assure that
coordination and collaboration exists to overcome previous program
deficiencies.
The Bureau of Citizenship and Immigration Services (BCIS) is
responsible for administering services such as immigrant and
nonimmigrant sponsorship, work authorization, naturalization of
qualified applicants for U.S. citizenship, and asylum. Processing
benefit applications is an important DHS function that should be done
in a timely and consistent manner. Those who are eligible should
receive benefits in a reasonable period of time. However, some try to
obtain these benefits through fraud, and investigating fraud is the
responsibility of BICE's Immigration Investigations program. INS'
approach to addressing benefit fraud was fragmented and unfocused. INS'
interior enforcement strategy did not address how the different INS
components that conducted benefit fraud investigations were to
coordinate their investigations. Also, INS had not established guidance
to ensure the highest-priority cases are investigated. Secretary Ridge
will need to ensure the two bureaus work closely to assure timely
adjudication for eligible applicants while identifying and
investigating potential immigration benefit fraud cases.
BICE's Intelligence Program is responsible for collecting,
analyzing, and disseminating immigration-related intelligence.
Immigration-related intelligence is needed by other DHS components such
as Border Patrol agents and inspectors within BCBP and personnel within
BCIS adjudicating immigration benefits. BICE will need to develop an
intelligence program structure to ensure intelligence information is
disseminated to the appropriate components within DHS's other bureaus.
Need to Reinforce Training and Internal Controls
Since the attacks of September 11, 2001, and with the formation of
DHS, the linkages between immigration enforcement and national security
have been brought to the fore. Immigration personnel have been tapped
to perform many duties that previously were not part of their normal
routine. For example, as part of a special registration program for
visitors from selected foreign countries, immigration investigators
have been fingerprinting, photographing, and interviewing aliens upon
entry to the U.S. Immigration investigators have also participated in
anti-terrorism task forces across the country and helped interview
thousands of non-immigrant aliens to determine what knowledge they may
have had about terrorists and terrorist activities. As part of its
investigation of the attacks of September 11, the Justice Department
detained aliens on immigration charges while investigating their
potential connection with terrorism. An integrated Entry/Exit System,
intended to enable the government to determine which aliens have
entered and left the country, and which have overstayed their visas, is
currently under development and will rely on BICE investigators to
locate those who violate the terms of their entry visas.
All of these efforts attest to the pivotal role of immigration
interior enforcement in national security and expanded roles of
investigators in the fight against terrorism. It is important that BICE
investigators receive training to perform these expanded duties and
help assure that they effectively enforce immigration laws while
recognizing the rights of citizens and aliens. It is also important
that DHS reinforce its management controls to help assure compliance
with DHS policies and procedures.
concluding observations
Having an effective interior enforcement strategy is an essential
complement to having an effective border strategy. To be sure, BICE's
tasks with regard to interior enforcement are considerable given the
nature, scope, and magnitude of illegal activity. INS faced significant
challenges in appropriately staffing program areas, providing reliable
information for program management, establishing clear and consistent
guidance for working-level staff to do their jobs consistent with the
goals of the program, and developing outcome-based measures that would
indicate progress toward the strategy's objectives. With the creation
of DHS, immigration functions are now in several different bureaus that
will require enhanced coordination. Addressing these issues are
important if BICE is to achieve full program potential.
Mr. Chairman, this concludes my prepared statement, I would be
pleased to answer any questions that you or other members of the
subcommittees may have.
Mr. Hostettler. Thank you, Mr. Stana.
We will now turn to questions, and the chair recognizes
himself for 5 minutes.
Mr. Secretary, in your written testimony you list BICE's
seven interior Immigration and Customs Enforcement strategy
items. In that list you do not mention specifically garden
variety unlawful employment. You speak about issues regarding
national security businesses, but the garden variety employment
issue is missing from the list.
Is that intentional, given Congress' desire in '86 to make
sure that illegal aliens and employment in this country was a
priority to be considered by INS?
Mr. Hutchinson. Well, if you look at the priorities, it
does refer to respond to community needs as they relate to
illegal immigration, so many times those types of concerns are
identified because complaints are received. So there is a
response. It is measured in terms of the other priorities. For
example, criminal aliens that pose a danger to society or
terrorist activities.
I will also remark that as ICE comes into Homeland
Security, we are going to be reevaluating priorities, because
clearly, with the new responsibilities that we have, and with
the potential for overlap, we want to make sure we reassess and
work with the Committee in determining the appropriate
priorities.
Mr. Hostettler. Very good. And we're open to the issue of
resources and we'll talk about that a little bit later, of what
we need to move that garden variety law enforcement for
employment into those priorities.
In the '96 Immigration Act, Congress authorized the
Attorney General to deputize State and local police to help
enforce immigration laws. Attorney General Ashcroft pursued
this multiplier effect with a few States. Do you intend to also
pursue agreement from State and local police departments to
multiply the effect of your limited number of immigration
enforcement agents?
Mr. Hutchinson. The Florida initiative, in which I think
there was 35 to 50 State law enforcement officers that were
trained in immigration enforcement, that pilot project has
worked very well. I would add that I think it was accompanied
by a 5-week training course. So we are definitely open to
mirroring that pilot project in Florida with other States and
developing those partnerships that has to be accompanied by
adequate training.
I know that in Alabama they're looking at that, so we're
open to it. We're just looking at the proper training to be
able to accomplish that when the right opportunity presents
itself.
Mr. Hostettler. Very good.
Following on that, Mr. Krikorian states in his written
testimony that traffic stops and arrests are a significant
opportunity to apprehend those in the country illegally and
that we should take full advantage of them. That has actually
been the subject of a hearing that this Subcommittee has
already held this year.
Do you agree with the statement that Mr. Krikorian makes?
Mr. Hutchinson. I absolutely agree with his statement. It
is important that we enter into the NCIC system, the criminal
database maintained by the FBI that local law enforcement has
access to, that the appropriate individuals who are on watch
lists or who are subject to a final order of removal are
entered into that system. We will work with the FBI to make
sure that the proper names are in that system.
It is a slow and laborious process. We hope to be able to
accelerate it.
Mr. Hostettler. Just for your information, in some of the
testimony we received in that Subcommittee--and the subject of
the testimony was sanctuary laws--one of the concerns we had
was that some communities are not allowing their law
enforcement officials to work directly with INS, and that is
something this Subcommittee is going to be concerned about and
will continue to look at. We look for your input in that
situation as well.
Let me ask you one other question. What is your opinion of
the Mexican matricula consular, the card that many banks and
State and local entities have decided to accept as proof of
identification of a Mexican national. We have received
information that there is no security to these documents and
non-Mexicans are found with these matriculas, sometimes
multiple matriculas, with different identities.
Do you think any Government entity in the U.S. should
accept these cards, and also, do you believe that recognition
of foreign government-issued identity documents make it more
difficult to enforce our immigration laws?
Mr. Hutchinson. It makes it more difficult if they are
subject to fraudulent use, or they are used as a vehicle to get
legitimate documents in the United States that can be used to
get benefits or services or access to facilities they would not
otherwise have. So clearly, as a sovereignty, the government of
Mexico has the right to issue such documents, but we want to
urge them to make them tamper-proof, which is a concern, and
secondly, to educate American businesses, whether it's banking
facilities or whether it is the States that render services,
that they do not use that as a vehicle to allow someone who is
here fraudulently to reap a benefit they would not otherwise be
entitled to.
Mr. Hostettler. Thank you.
The chair now recognizes the gentlelady from California,
Ms. Sachez.
Ms. Sachez. Thank you, Mr. Chair.
Under Secretary Hutchinson, under the reorganization, what
agency is going to be in charge of visa processing?
Mr. Hutchinson. The visa oversight responsibility has been
transferred by Congress from the State Department to Homeland
Security. The law says that the visas will be--that our
responsibility is to exercise, through the State Department,
the actual physical issuance of the visa. But our
responsibility is to make sure regulatory training and from an
oversight standpoint that visas are not issued to people who
inappropriately come to America and want to harm us. We are
currently working with the State Department to enter into a
Memorandum of Understanding as to how to divide those
responsibilities clearly, in accordance with the congressional
mandate.
Ms. Sachez. So as of this moment, there really isn't a
clear understanding of what the responsibilities of each agency
is?
Mr. Hutchinson. Well, at the present time, the State
Department continues their traditional role of issuing visas
and reviewing the appropriate lookout list to make sure bad
people do not get visas, so they continue that responsibility.
So that function is happening, and it will be transferred to
the Department of Homeland Security.
Ms. Sachez. It is my understanding that it has been 2
minutes or less spent on visa interviews; is that correct?
Mr. Hutchinson. I do not have the specific time frame for
that. I think it would probably depend upon the circumstances.
Some people would have a much more extended interview than
someone who they would have no reason to suspect, or they're
satisfied as to their credibility.
Ms. Sachez. Moving on to the subject of the matriculas,
what percentage of the matriculas have been found to be
fraudulent?
Mr. Hutchinson. I do not have any information on that. I
would be glad to get back with you, but I do not have that
information.
Ms. Sachez. Okay. Also, I understand that the new bureaus
that have been created for handling various aspects of
immigration law have been working hard right now to try to
transition from the old INS. But one concern that has been
raised on numerous occasions, both within the old INS structure
and the new bureaus, is the use of racial profiling by Customs
agents. According to a recent GAO study, more terrorists have
been found since Customs stopped using racial profiling as a
technique. Now State and local law enforcement agents are also
being asked to uphold immigration laws in some situations.
What kinds of training is being given to ensure that
they're not using the less reliable method of racial profiling
instead of using more specific information based type of stops?
Mr. Hutchinson. Any time immigration authority would be
utilized by a State and local official it should only happen
with very significant training. As I mentioned in Florida,
approximately 50 officers were trained through a 5-week course.
I would also add that there will be no toleration for
racial profiling at Homeland Security. We certainly do not
believe that, in the routine enforcement of our laws, that that
should be any type of acceptable practice.
Ms. Sachez. Within the new bureau structure, are the new
performance measures going to include whether or not terrorist
arrests are made, based on the changes that are made?
Mr. Hutchinson. I'm sorry, could you repeat that question?
Ms. Sachez. Sure. Under the new performance measures, under
the new bureau structure, are the performance measures by which
you're going to rate the accuracy and effectiveness of the new
bureau structure, are they going to include whether terrorists
are being arrested, those types of statistics?
Mr. Hutchinson. We're working on the performance measures.
One, we believe they are very important. Obviously, whenever
you're looking at the border and the effectiveness there, there
is a number of measures of effectiveness: one, do any
terrorists sneak through, or people who go through with
fraudulent documents. Another measure of performance is how
long it takes to do inspections, and how long the wait lines
are. So all of that is a measure of effectiveness because our
mandate is to protect our borders, but also to not interfere
with or impede the flow of commerce. So we're going to be
working to develop appropriate measures of performance.
Ms. Sachez. It just seems to me that, if that is the goal
of moving the INS structure under the new bureau structure, if
one of the main concerns is stopping terrorism, then at least
those type of statistics would be used in the new performance
measures.
Mr. Hutchinson. Certainly that would be a factor to be
considered.
Ms. Sachez. No more questions. I reserve the balance of my
time.
Mr. Hostettler. The chair recognizes the gentleman from
Arizona, Mr. Flake.
Mr. Flake. Thank you, Mr. Chairman. I thank those of you
for testifying, for providing such ``earth shaking'' testimony.
[Laughter.]
Recent press accounts indicate that al Qaeda may be using
our southern route to sneak into the country. In fact,
Congressman Jim Kolbe's brother owns a ranch in the southern
part of Arizona and recently found a backpack with Arabic notes
written inside. I doubt that Arabic is being taught very much
in Mexican high schools; it isn't here much. Obviously, this
may be an issue.
How seriously is this new agency taking items like this?
Mr. Hutchinson. Well, seriously enough for me to go to the
border and meet with Congressman Kolbe and be on those ranches
that you're referring to. I just returned from a tour of the
border in Arizona, and I actually examined some of the
documents that you referred to.
Clearly, the southern border is a means by which illegal
immigrants try to come across to the United States, and this is
not limited to our Latin American neighbors but would also
include traffic patterns from a variety of other countries.
There has been instances in which we have stopped Mid
Easterners who have tried to come across our border. That does
not mean they are terrorists or have terrorist intentions, but
it certainly means that a broad variety of national origins
will use our southern border, as they will use our northern
border.
Mr. Flake. I grew up on a ranch in northern Arizona and I
recall interior enforcement back in the Seventies, quite active
interior enforcement. It seems that we're returning to some
semblance of that at least with ICE.
Several of us are working on a guest worker program, which
would allow a legal framework for individuals, willing workers
who want to come through legal check points, through legal
means, and then return home legally.
What flexibility does ICE and CBP have to shift focus, if
we have--as we all know, an overwhelming majority of those who
come through the southern border simply are coming to work, not
for any nefarious purpose. What flexibility do these new
agencies have under one head now to actually shift focus, if we
have a program, where the southern border won't be as much of
an issue and there won't be as many illegal crossings but,
rather, interior enforcement will become more important. I
guess it's shifting resources from CBP to ICE, and with that,
again on the employer enforcement, are we gearing up for that
possible time? I believe, with the meat packing industry, for
example, we have a system to check more quickly if a Social
Security number is fraudulent or not.
Does this new agency envision being able to shift
resources, manpower, quickly enough once we have a system like
that in place?
Mr. Hutchinson. Well, that is very important, for us to
have the flexibility to respond to new threats, as well as
changes in policy. So one of the responsibilities and benefits
of having both Customs and border protection and ICE reporting
to the same directorate means that we can make sure they're
effectively coordinated and that we can make sure they're
responding to those threats.
Whenever you're talking about the guest worker program,
that's a policy decision that Congress has to make, but
certainly we will have the flexibility to adjust to any such
changes that Congress might dictate.
Mr. Flake. Mr. Krikorian, do you have any comments on that,
or thoughts on that?
Mr. Krikorian. I would question the assumption that a guest
worker program would actually lead to less need for border
enforcement, because during the last big guest worker program
we had with Mexico, the Bracero program, at the height of the
Bracero program in the 1950's, we actually saw the greatest
wave of illegal immigration that we had ever seen and wasn't
matched until 30 years or 40 years later. Because all
immigration creates more immigration, so a flow of guest
workers inevitably also creates a flow of illegal immigrants
accompanying it, because many people who now would want to come
would not be able to qualify and so the need for border
enforcement, it seems to me, might actually increase with the
guest worker program, rather than decrease.
Mr. Flake. Thank you.
Mr. Hostettler. I thank the gentleman.
The chair now recognizes the gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
First I would direct my initial question to Mr. Danahey,
and I would point out that I grew up in a law enforcement
family. As I listened to some of the discussion about profiling
here and profiling in general, it is my understanding that that
has been a longstanding traditional practice, a very wise
practice, that has helped us with our investigations and, in
fact, would make some of those investigations impossible if we
did not build a profile of the people we're looking for.
Is it your belief that you can enforce the law without
using any type of profiling?
Mr. Danahey. I believe that you have to establish some
parameters to work from, that some sorts of profiling actually
jump out at you. In the case of September 11th, it was
definitely a specific set of individuals that conducts the
acts, far different from people we're used to in the United
States on the norm.
I think you need to use guidelines to establish parameters,
so that you have a base to work with.
Mr. King. Would you accept a definition that certain
stereotypes are really what we're addressing when we use the
word ``profile''? I mean, I have used the term profiling in the
police term, which means this is good investigative work, but
it's inappropriate to stereotype people by membership in
groups.
Mr. Danahey. I don't like the word ``stereotyping''. It
leads to at least thinking of other things. But I think the
basic criteria for an individual is identified, which would
lead one to believe, working through an investigative process,
that this is the right route to take.
Mr. King. So, in fact, we may have to do some type of
profiling, even though we're careful not to make it
discriminatory?
Mr. Danahey. Yes, sir.
Mr. King. Thank you.
To Mr. Krikorian, as I listened to your testimony--and you
focused on interior issues with regard to immigration--you
mentioned that we have three points, that we address
immigration overseas, I think was the term you used, and I
would say any foreign country rather than necessarily overseas,
but the intent is the same. And then also at our borders and
the third one was interior. Then you focused also on the
numbers of illegal immigrants that voluntarily leave the
country.
I would suggest that, in a perfect world, everyone would
respect our laws. We first write the perfect laws and then
everyone would respect them. In a near perfect world, we would
be able to enforce all of our laws. If we were able to do that
at the border, wouldn't that ultimately also conclude the
illegal immigration issue within the interior of the United
States?
Mr. Krikorian. Hypothetically, maybe, at least with regard
to some element of the illegal immigrant flow. In other words,
those people crossing the border illegally would be able to be
kept out in some theoretical perfect world, were we able to do
that. Although, if you talk to any Border Patrol agent, they'll
tell you that they need interior enforcement in order to do
their job.
But, that having been said, some 40 percent of the illegal
immigrant population actually entered legally. They crossed the
borders with our permission. They had visas, they came to the
United States, and then they violated the terms of those visas
by overstaying, by working without permission, by not going to
a school they were supposed to be going to. All of those forms
of violation of the immigration law need interior enforcement.
The most ideal, perfect, sort of platonic ideal of border
enforcement, still wouldn't address a substantial part of the
illegal immigration problem.
Mr. King. Then, in your estimation, when you look at this
entire issue of the three areas where we have our enforcement,
what percentage of our resources would you focus in each one of
those three--overseas, at the border, and internally?
Mr. Krikorian. I wouldn't want to come up with a numerical
percentage. As Mr. Danahey pointed out, we need to find out
what the mission requires and then budget for it. So the answer
is I don't have any kind of magic number.
Mr. King. Thank you, Mr. Krikorian.
In the moments we have left, Mr. Under Secretary, can we
get there? Can we get where we need to go to provide safety and
have secure borders, and secure also the continuity of the
culture?
Mr. Hutchinson. I believe we can, but technology has a
great deal to do with it. So the Congress has mandated an
entry/exit system, where we can track our foreign guests that
come in here and know when they leave. This is a technological
solution to one aspect of the problem. There is not any silver
bullet, but I believe that we have the right strategy, some of
which has been articulated here by my colleagues at the panel.
Where we layer our enforcement to have a filter overseas
through visa issuance, we have more information in advance on
people and cargo coming to our country, we have a good
inspection system at our ports of entry through technology. And
we have to use technology, whether it's sensors or perhaps even
drones, to help protect the land between our ports of entry. So
we can get there, but it's going to take a lot of teamwork
between what we do and what Congress does.
Mr. King. I will be happy to work with you. Thank you, Mr.
Hutchinson, and thank you, Mr. Chair.
Mr. Hostettler. Thank you, Mr. King.
The chair now recognizes the gentleman from California, Mr.
Gallegly.
Mr. Gallegly. Thank you very much, Mr. Chairman. Welcome,
Mr. Secretary. It's great to have you there. I had the
privilege of serving with you for many years on this Committee,
and I have newfound reason for optimism with your leadership
dealing with issues affecting the INS, something that has not
always been a real confidence builder for me.
As you may remember, back in the mid-90's I was the
Speaker's Chairman on the Task Force for Immigration Reform.
During that period of time, we took a trip, which later became
known as the ``Kromegate'' trip--you may or may not remember
the specifics of it. But one of the stops on that trip that I
took, along with seven or eight Members of Congress, was to New
York's Kennedy Airport, and then also down to Miami's
International Airport, and then on to the Krome Detention
Center in Miami.
One of the things we found at Kennedy in New York and also
at Miami is that when we had folks coming into the country with
documentation that was not correct, as immigration processed
these folks that had a problem, for those that were considered
to be a low flight risk they would process them in and give
them a date to appear, which I guess is a common practice.
The interesting part of those that were considered to be
low flight risk, both in New York and in Miami, 94 percent of
those that were processed out as low flight risk flew the coop.
They never returned. Now, I don't know really what constitutes
the issue of low flight risk, but I can tell you, quite
frankly, that didn't seem acceptable to me.
What are we doing, or what can we do--I know you have a
detention problem with beds and so on and so forth--but has
that been tightened up? What are we doing? Why not just put
them back on the airplane?
Mr. Hutchinson. Well, first of all, the problems you
described have led to the fact that we have over 300,000 aliens
who are under a final order of removal and they have not been
found and removed. In other words, they have not responded to
their bond in which they're supposed to appear.
That is one of the challenges that we face. It is a
challenge both in terms of legal process--because you asked
about whether we could immediately remove them, and many times,
obviously, if they request asylum, if they raise certain legal
issues, it involves a long legal process. Then you have the
issue, if you have a high bond, do we have the detention
facilities to detain them.
I guess I'm reciting some problems. These are things we
have to work on, whether you use technology, where you don't
detain them but you have a stronger basis to track them.
Mr. Gallegly. Mr. Secretary, correct me if I'm wrong,
because you're the constitutional lawyer here and I'm not, but
until such time as they clear Customs, even though they're
physically in the United States, my understanding is they have
not technically entered the United States until they have
cleared Customs. And until they cleared Customs, they do not
have all the constitutional rights as someone would have who
has entered the country formally, which would mean the rules
are changed once you have given them the right to go out and
return; is that correct? So we wouldn't be denying anyone
constitutional rights if they didn't have them?
Mr. Hutchinson. There is a distinction between whether
they're found in the country, whether they're found at the port
of entry. There is a difference as to whether they are
presenting fraudulent documents or whether they present
themselves requesting asylum. So varying legal rights attach
under those circumstances.
One of the things we need to look at is how we can more
effectively administer all of that program.
Mr. Gallegly. One other quick question, Mr. Secretary. You
may not know the answer to this, but I would really appreciate
it if you would find out for me.
During the course of that same trip, it was found that--in
fact, the IG did an investigation after a group of employees
came up to me with 50 or 60 signatures about how we were being
give a ``dog and pony show'', how we were lied to by the INS,
and how they had cleaned up the detention center and released
hundreds of people into the streets, high risk, with
communicable diseases, from Haiti and other places, and also
that there had been a couple hundred put on buses and moved
throughout Florida to make it look like the Chrome Detention
Center was being run pristinely. Of course, I thought these
were disgruntled employees, but I turned it over to the IG.
What started out to be a 90 day process ended up taking a
couple of years, with seven of Michael Bromwich's top people
and costing probably several million dollars. There were
several people that were terminated or demoted, and so on and
so forth, and then, of course, the board, whatever you call
that board, reinstated most of them.
But there was one individual by the name of Dan Cadman. I
don't know if that name rings a bell or not, but that's the
name I would like for you to check for me. Mr. Cadman was the
director of operations in Miami, who was principally
responsible for orchestrating this whole issue. He accepted a
voluntary demotion in lieu of prosecution because of destroying
documents that were under subpoena, purging records--actually
deleted. He didn't purge. He got caught on that one--and lying
to Congress. He accepted voluntary demotion.
The IG had stated that, under no circumstances, should this
individual ever be put in a position of trust or managing
people. I didn't hear any more about Dan Cadman until about the
12 or 13 of September, 2001, a couple of days after the
incident on 9/11, only to find out that we found Dan Cadman
working at INS in charge of the anti-terrorism group for INS.
Needless to say, that raised a few eyebrows with some of my
colleagues and myself.
I would like to know where Mr. Cadman is right now with the
INS. Someone had told me they kind of shuffled him off to a
high level position in Spain or somewhere. But I would be
interested to know that.
Mr. Hutchinson. We'll be happy to report back to you.
Mr. Gallegly. Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentleman.
The chair now recognizes the gentlelady from Tennessee,
Mrs. Blackburn.
Mrs. Blackburn. Thank you, Mr. Chairman, and thank you to
all of you for being here, for your well-prepared testimonies.
I think we all want to do what we can to help you move to a
plan of action. It sounds as if you have defined a problem, and
it would be our hope that we can assist you in moving to action
to restore the trust of the American people, that, indeed, we
are addressing illegal immigration and the problems it brings.
I do have a couple of questions for you. Mr. Stana, thank
you for your well-prepared report. One thing I do want to ask,
have you all developed any framework for coming to what
fraudulent documentation and illegal immigration is costing
American business each year?
Mr. Stana. No, we don't have a figure on what it's costing
American business, but it is a large problem with employers on
verification of eligibility to work.
As was pointed out earlier by others on this panel, it is a
big industry to create false documents, and many of them are
very good. It is not always easy to determine who is eligible
and who isn't. So that's an issue.
The other issue is that oftentimes employers don't want to
know. It's a source of cheap labor, so they'll look to the card
and say ``that looks good to me'' and hire the individual. But
I don't have a figure for you.
Mrs. Blackburn. Is anybody taking any steps to come to a
figure, or are we just going to let that lay out there and say
ignorance is bliss on the issue?
Mr. Stana. I'm not aware of anyone coming to a figure on
that. INS had a pilot program to verify authorization
documents. I don't know where that is right now. A report was
expected to be issued a year ago on how successful that program
was. I haven't seen that report yet.
Mrs. Blackburn. Okay. Thank you.
You also note that the INS in their time had noted that
they didn't have sufficient staff. The general things we hear
is we don't have enough staff, we don't have enough time, we
don't have enough money.
Now, my question to you and to Mr. Secretary is, do we have
a workable plan of action that will take us toward addressing
what needs to be done, and do we have that on a time frame, not
just that it's out there but do we have a date certain, some
benchmarks and some timelines for----
Mr. Stana. What I would suggest happen here--and Mr. Under
Secretary can answer also--you have to answer this at two
levels. First, we're undergoing a transformation from the old
INS to the new DHS. This is a new day. Top leadership needs to
drive the change, communicate a coherent mission, reset the
priorities--which Mr. Hutchinson said they're in the process of
doing, make sure everyone knows what their job is and what the
timelines and the goals are, and encourage employee
involvement. That's at the upper level.
At the more immediate level, I think steps have to be taken
to find problems before they become bigger than they start out
to be. We've seen instance after instance where that's not done
and small problems become big. You have to fix the information
technology, you have to fix the guidelines, the roles, the
reward structure, and finally, you have to come up with better
performance measures that measure outcomes, not just activity.
Mrs. Blackburn. My question is, and not to interrupt but to
move along, where are we in that process? Do we have a
timeline, do we have that plan of action, and are we moving
forward satisfactorily on that?
Mr. Hutchinson. I believe that we are. The Department has
been in existence with these agencies for less than 45 days,
and we're moving aggressively in that regard. Part of it is
money. Obviously, the '04 budget we believe is a significant
investment, with 355 new positions.
The second part is strategy. The third part, as was
mentioned, is information technology. There is a timeline
specifically that we're going to have the information
technology in place to accomplish these goals.
Finally, on the priorities, there is a timeline in place to
reassess those priorities.
Mrs. Blackburn. One other question for you, Mr. Secretary.
I'm new to this body this year, but I came from the State
Senate in Tennessee where I led the fight to close the loophole
that illegal aliens were using to get valid Tennessee drivers
licenses. You mentioned in your testimony that one of the keys
to preventing illegal aliens is the drivers license. What
specifically are you all going to do, in conjunction with our
State and with the AAMVA, to work to prevent illegal aliens
from getting valid drivers licenses?
Mr. Hutchinson. Well, I would say there are two parts to
that. One, I think we need to develop a system in which drivers
licenses are not driving every service that is delivered or
access to the voter rolls or other benefits that might be
received. And secondly, we have to work with the States in
order to accomplish this. Your leadership was critical in
Tennessee, and I hope that's a model for other States. We are
certainly pushing all across the board for more tamper-proof
documents. Even Social Security cards. I met with Jo Anne
Barnhart, the Commissioner of Social Security, and there were a
lot of discussions there as to how to eliminate that as an
aspect of fraud. So there is much work to be done, but we are
working in partnership with the States and other agencies to
reduce that type of fraud of all documents.
Mrs. Blackburn. Thank you very much.
Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentlelady.
I will now move into a second round of questions that I
have for a few of the other witnesses, and the other Members
can take part as well.
First of all, Mr. Krikorian, you mentioned the low numbers
of interior agents assigned to worksite enforcement and other
functions. There was a discussion earlier about the numbers and
the implementation of the right number of agents. But, given
the system today, with its strengths and its weaknesses, in
rough terms, how many agents do you think would be needed to
completely enforce our immigration laws.
Mr. Krikorian. I would say that Mr. Danahey's suggestion
would be a starting point, double the number of agents from
2,000 to 4,000, and then see if it's adequate. I mean, 2,000
agents to enforce a whole panoply of immigration laws across
the entire United States, when there are 33 million foreign-
born people in the United States, is clearly inadequate.
I don't have a magic number, but I would suggest double it
and then see if it's enough. It may well not be. I mean, in a
sense, Mr. Chairman, part of the problem is that I think we're
not quite sure how much we, as a people, Congress, the
Administration, aren't really quite sure how much we want to
spend on this, but we aren't really matching our means to our
goals. In other words, if we want an enormous flow of people
from overseas, it's going to require vast amounts of money
being spent every year indefinitely in order to make sure
that's managed properly.
If the amount of money that we need to spend is something
more than we're comfortable with, we need to rethink whether
that enormous flow of people from overseas is something we
really want to continue.
Mr. Hostettler. I think that's an excellent point. That's
why these hearings are vitally important, because the Chairman,
at least, wants the American people to know how much this is
going to cost, whether it's enforcement of our laws or the
facilitation of immigration and naturalization to this country
and all that that entails. I think the American people should
at least know what it's going to cost for Congress and the
Executive branch to execute our constitutional requirements
with regard to immigration and naturalization. As you pointed
out, doubling it might be a good start, but that might not be
enough.
Mr. Danahey, you state in your written testimony that
immigration law enforcement officers need ``general arrest
authority,'' something Congress has authorized but has never
been implemented by any Administration. Could you explain what
general arrest authority is and give an example or two of how
it would be undertaken?
Mr. Danahey. Sir, if I could, I would like to call on one
of the individuals from immigration who is with us today behind
me, Special Agent Kevin Ryan. I believe he could answer that.
Mr. Hostettler. Without objection, that would be fine.
Mr. Danahey. Special Agent Ryan.
Mr. Ryan. Our understanding of general arrest authority----
Mr. Hostettler. Mr. Ryan, could you give your full name and
your title, please, for the record.
Mr. Ryan. My name is Kevin Ryan. I'm a Special Agent with
INS, or former INS, in Buffalo, NY. I'm the FLEOA President for
INS.
Mr. Hostettler. And you are now with ICE?
Mr. Ryan. Yes, with ICE, in Buffalo.
Mr. Hostettler. Thank you. Please proceed.
Mr. Ryan. General arrest authority was granted in the 1991
Immigration Act for immigration officers to arrest for
nonimmigration-related offenses that occur in our daily
activities investigating other Federal laws.
We have never had that implemented. I know FLEOA has asked
for that in at least six other times that we've testified
before various Committees, to have general arrest authority.
It's a liability issue for agents, because we are assigned to
other task forces. We are deputized and that kind of covers us,
but in many cases agents will go out on a task force or be
assigned to a task force and that process of being deputized is
not always fully implemented prior to going out and we are
making arrests for other than section 274 of the Immigration
Act, nonimmigration-related offenses.
Mr. Hostettler. For the layman, hypothetically, could you
give an example?
Mr. Ryan. A drug arrest. I have no title XXI authority. If
I was assigned to a drug task force and I wasn't deputized and
was executing a warrant for a XXI violation, to my
understanding I'm kind of in a gray area. That's been a concern
of our Members that is constantly brought up.
I don't know all the legal definitions that go with general
arrest authority, but I know it's a concern to our Members.
Mr. Hostettler. Because while executing a warrant with
regard to immigration law, and you see another infraction--is
that what you're talking about?
Mr. Ryan. Well, again, immigration assists in many local
and State task forces, or a Federal task force, and State, and
we will execute arrest warrants other than for title VIII
authority, which is the Immigration and Naturalization Act,
which we have jurisdiction for under our Federal Code of
Regulations.
When we step outside of that, without having general arrest
authority, again, I don't know the exact legal definition, but
it has been told to me that if I step outside of title VIII, I
don't really have authority unless I've been deputized to do
that.
Mr. Hostettler. Okay. And without that deputization, what
happens in that hypothetical situation with the drug----
Mr. Ryan. Well, it would be a liability to me if something
were to happen that the arrest would not proceed normally and
we took other action, and that would give that individual an
ability to come back at me and say, you know, Special Agent
Ryan did not have authority to arrest me. That's my
understanding. Again, it's not a legal definition, or I don't
know the legal definition. But that is the understanding that's
been told to me.
Mr. Hostettler. Very good.
The gentleman from Iowa, Mr. King?
Mr. King. No questions, Mr. Chair.
Mr. Hostettler. The gentlelady from Tennessee, Mrs.
Blackburn.
Mrs. Blackburn. Thank you, Mr. Chairman. I do have just a
couple more things.
Mr. Danahey, you laid out seven steps that you felt would
be necessary for you all to perform to the best of your
abilities in addressing immigration situations. Step number
four is interior enforcement, and you spoke of the SEVIS
program in there. We had a hearing on that last week and heard
from some folks that feel like maybe that's not working quite
as well as it should be and they have spent $38 million on it.
If you could, can you speak briefly to SEVIS and to what
you see as either the success or failure and possibly what we
should do to address that?
Mr. Danahey. I believe the problem with SEVIS is manpower,
once again, and the ability to follow up on the individuals who
aren't where they're supposed to be once they register for the
program.
Mrs. Blackburn. Okay.
Mr. Hutchinson. Could I add to that a little bit?
Mrs. Blackburn. Please do.
Mr. Hutchinson. First of all, the SEVIS program was
implemented through a private contract, so we rely technically
upon a contractor--in this case, EDS--in order to oversee the
system. There were some glitches in it, so we're working with
our contractor, the private sector, to remedy that. I think
we're making progress.
The second part of it I would just add, is that it's a good
system, it's the right strategy to get this information flow on
students who might not show up under the visas.
To illustrate the information flow, since December the
universities have called in 2,000 names of students who had
visas that did not show up for their education, for their
classes. They call in the toll-free number. So then we have to
process those 2,000 names and follow with the leads.
We have prioritized those and are going after, first of
all, the countries of concern. We have issued out 180-some
leads to follow up from an investigatory standpoint. So we need
to make progress both in terms of the system, making sure it
operates well for the universities, but secondly, to make sure
that we have the capability to handle the information that
comes in and responsibly address any overstays of visas or
misuse of the visa authority.
Mrs. Blackburn. Excellent. Thank you very much.
Mr. Secretary, you mention the Absconder Apprehension
Initiative in your written testimony. If you would speak to
that for just a moment, how has that helped you to apprehend
some individuals and where are we with that? How many are on
the list?
Mr. Hutchinson. Well, there is really two parts to that.
There's the criminal alien removal program, which is much
easier because they're in custody, have finished their prison
sentence, they're an illegal alien and we take them before they
leave and remove them from the country. That is something that
I think we are addressing fairly effectively.
The second part of it is the 300,000-plus that have a final
order of removal and do not show up to be removed. We have our
alien apprehension initiative in which we put resources toward
that. We first have to figure out if they actually have left
the country, because they might have a final order of removal
and, just because we didn't remove them, they still might have
left. They could have gone up through Canada and left and we
just have no record of it. So we have to determine whether
they're actually here or not, and then determine where their
location is and go through a very lengthy investigation to find
them.
We are looking at ways to improve that, partnering with our
United States Marshal Service, having a Top 10 list to go after
the most dangerous, and publicize it more. And then the
resources that are being requested in the '04 budget will help
us to move further along that initiative.
Mrs. Blackburn. Thank you. Your task is daunting and I
thank you for your time, all of you.
Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentlelady.
Once more, I want to thank the panel for your attendance
today and your flexibility in this. As the gentlelady from
Tennessee said, your task is daunting, Mr. Secretary, and all
of your inputs today have been very much appreciated.
Without objection, the chair enters into the record a
report by Ms. Sachez of California by the Mexican-American
Legal Defense and Education Fund, regarding civil rights
concerns within the Department of Homeland Security.
[The report follows in the Appendix]
Mr. Hostettler. Likewise, without objection, the
Subcommittee will have five legislative days to enter any
statements or questions into the record.
The business of the Subcommittee being completed, this
Subcommittee is adjourned.
[Whereupon, at 10:47 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of Chairman Hostettler
Last year, Congress enacted the Homeland Security Act, historic
legislation creating not just a new department in the executive branch,
but a new home for our newly structured immigration system. Now that
the immigration functions have transferred into the Homeland Security
Department, we must closely oversee the transition to ensure that our
immigration laws are strictly enforced and that our immigration
benefits are fairly administered.
Since we are at this immigration crossroads, we have the perfect
opportunity to, as accurately as possible, determine what resources are
needed to administer and enforce our current immigration laws. The
Homeland Security Act required that the immigration services bureau
receive a budget separate from that of the immigration enforcement
bureau. This will help each bureau better manage its mission and help
us better determine the proper amount of resources needed by each.
Subsequent to the Homeland Security Act being signed into law, the
new department reorganized enforcement functions into two categories--
the border and the interior. The Department combined the Customs
interior enforcement functions with the INS' investigations; detention
& removal; intelligence; and the deportation attorney corps to create
the Bureau of Immigration & Customs Enforcement (BICE). The Department
also combined the Customs border functions with the INS' Border Patrol
and inspections to create the Bureau of Customs and Border Protection
(BCBP). This hearing focuses on the interior bureau, ICE, its
transition into the new department, and its resources.
For example, in the Justice Department Inspector General's recent
report, ``The Immigration and Naturalization Service's Removal of
Aliens Issued Final Orders,'' the Inspector General found that aliens
with final orders of removal who are not detained are rarely deported.
Taking a sample of non-detained aliens, the Inspector General found
that the INS removed only 13 percent of non- detained aliens with final
removal orders. Within the sample, only 35 percent of aliens with
criminal records were removed. Finally, only three percent of non-
detained aliens with final removal orders who were denied asylum were
removed. The Inspector General also selected a sample of non- detained
aliens with final removal orders from countries that the State
Department has identified as sponsors of terrorism. The Inspector
General reported that the INS removed only six percent of this
population. In sharp contrast, 92 percent of detained aliens with final
removal orders were removed according to the Inspector General. The
INS' typical response to such findings has been that it lacks the
resources to remove more aliens with final removal orders.
For too long, the former INS complained that it could not
adequately do its job because the agency did not receive enough
resources from Congress. That practice of buck-passing needs to end. In
a letter dated June 21, 2002, this Subcommittee specifically asked the
former INS what resources it needed to enforce our immigration laws,
but the agency was utterly unresponsive in its October 21, 2002
response.
This new department requires a new attitude. The American people
want our immigration laws enforced. We want the Bureau of Immigration
and Customs Enforcement to succeed, but it needs to help us if we are
to be of help. When we ask what resources the agency needs to fully
enforce all of our immigration laws, we need an honest answer.
Otherwise, we cannot attempt to authorize and appropriate sufficient
funds. If the new agency continues INS' practice of being unresponsive,
it should not complain that Congress under-funds the agency. Likewise,
if Congress is told what resources are needed but falls short on
authorizing and appropriating funds to the BICE, Congress should not
complain that the agency is not adequately enforcing the laws. But more
important, if Congress does not fully fund BICE, Americans will remain
unprotected from future terrorism attacks.
The purpose of this hearing is to examine the transition of
immigration enforcement into BICE, explore the capabilities and
limitations of BICE given the current resources available to the
agency, and determine what resources would be needed to fully execute
our immigration enforcement laws.
----------
----------
Prepared Statement of the Honorable Sheila Jackson Lee
I will start by expressing my desire to support the Bureau of
Immigration and Customs Enforcement, particularly with respect to it's
vital role in the war against terrorism. I will help in any way I can.
The transition from the former Immigration and Naturalization Service
into the Bureau of Immigration and Customs Enforcement should be
undertaken so as to ensure effective and fair enforcement, while
minimizing disruptions and delays. It also is necessary for the Bureau
to pursue its objectives without violating the civil rights of the
immigrants in our country.
For example, I would like to see an end to the special registration
program. This program is supposed to identify dangerous aliens in our
midst. In fact, though, it substitutes national origin/racial/religious
profiling for effective law enforcement based on intelligence
information. Our nation will not be made more secure by requiring
innocent immigrants to report to INS offices to ``register,'' only to
find themselves subject to arbitrary arrest, detention, abuse and
possible deportation.
The Homeland Security Act addresses the need for internal oversight
by creating a civil rights officer and a privacy officer, but it does
not go far enough in granting authority to these officials to
effectively protect civil rights and liberties. Such authority is
vitally needed.
The Administration is trying to keep certain detainees from having
access to counsel by labeling them ``enemy combatants.'' In the case of
Jose Padilla, the courts have recognized this as unconstitutional and
required the government to let him seek counsel. Also, the military
tribunal regulations prevent defendants from seeking their own counsel;
they must choose from a pre-approved list of lawyers.
The Administration has employed extreme tactics in the war against
terrorism, such as the surveillance provisions of the USA Patriot Act,
secret hearings, interrogations, secret wiretaps, and prison camps, yet
we still hear of new terror threats.
In establishing the Homeland Security Department, the President
moved existing agencies into a new cabinet department and did nothing
to fix the problems that exist in those agencies. For example, he did
not reform our traditional lookouts, the FBI and CIA, which failed to
analyze the clues they had regarding September 11.
Officials within your Bureau need to understand immigration policy,
recognize the importance of both adjudications and enforcement, and
work to ensure the necessary coordination of the separated
adjudications and enforcement functions.
I also hope that the Bureau deals with the management problems that
plagued the former INS and prevented it from functioning effectively.
This requires first and foremost a visionary leadership, which must be
coupled with clear and uncompromising chains of command that are
understood and honored.
Lastly, I strongly believe that state and local police should not
be used to enforce immigration laws. These officials are not trained in
the complicated field of immigration law and should not be expected to
perform immigration duties in addition to their already demanding job
responsibilities. When put in this untenable posture, experience shows
that state and local officials too often default to racial profiling
instead of objective standards when they decide who to question about
immigration status.
Thank you.
----------
----------
----------
----------
Prepared Statement of The Mexican American Legal Defense and
Educational Fund (``MALDEF'')
Civil Rights Concerns Within the Department of Homeland Security
The Mexican American Legal Defense and Educational Fund
(``MALDEF'') is a national, non-profit, non-partisan organization
dedicated to defending the civil rights of the more than 37 million
Latinos living in the United States.
MALDEF is concerned about the Department of Homeland Security
(``DHS'') and civil rights violations that could occur if the civil
rights protection is not a priority in the development of the new
agency.\1\ The new DHS includes all prior functions of Immigration and
Naturalization Services (``INS'') and the U.S. Customs Service and is
slated to be up and running by March 1st. The mission of the DHS is to
fight terrorism. With all INS functions subsumed into the DHS, the
effect will be to look at all immigrants, including millions of legal
immigrants, as suspected terrorists, instead of who they really are.
---------------------------------------------------------------------------
\1\ For more information, contact Katherine Culliton, Immigrants'
Rights Attorney, in our D.C. office at (202) 293-2828 x 14.
---------------------------------------------------------------------------
As discussed herein, in this context, we are concerned about civil
rights issues, such as racial profiling, human rights violations at the
border, and the use of state and local police to enforce federal
immigration laws. We are also concerned about our failed immigration
policy, which has resulted in a complete lack of legal recognition of
millions of immigrants who are the backbone of the U.S. economy.\2\
\2\ See for example: Northeastern Univ. Center for Labor Market
Studies, Immigrant Workers and the Great American Job Machine: The
Contributions of New Foreign Immigration to National and Regional Labor
Force Growth in the 1990s (Prepared for the National Business
Roundtable, Wash. D.C., August 2002). This groundbreaking study found
that new immigrants made up more than \1/2\ of the growth of the
nation's entire civilian workforce between 1990 and 2001. Among other
findings, Northeastern University concluded that: ``The findings in
this research report on the role of immigrant labor in meeting the
employment needs of the nation's employers, especially in the private
business sector, deserve the careful attention of the nation's and
states' economic policy makers, the business community, organized
labor, and state and local workforce development boards. At no time in
the past 90 years was the nation so dependent on immigrant labor to
meet its growing need for labor, especially among male workers, whose
native supply barely increased in the past decade and actually declined
in a number of regions and states . . .'' Summary of Findings, pp. 38-
43 @ Sec. viii.
``A fairly high fraction of these new immigrant workers, especially
in less skilled occupations, are undocumented workers. . . . Our
national immigration policies have largely been a failure in reducing
undocumented immigration, and our work force needs are being met by a
group of workers who possess little rights . . .'' Sec. x.
LAmong other measures, we strongly suggest that the
new Undersecretary of Border and Transportation Security, Asa
Hutchinson, and the new chief of immigration services, Eduardo
Aguirre, neither of whom have a background in immigrants'
rights, enlist the help of high-level aides with backgrounds in
civil rights and immigration services issues. Otherwise, our
customs agents and border patrols are likely to commit grave
violations of the rights of immigrants, which will do nothing
except undermine national security.
LWe need to count on the cooperation of everyone--
including immigrants--to win the war against terrorism, and
this can be done through a DHS based upon fairness, teamwork
and effectiveness, instead of the type of random harassment of
immigrants' rights that we have seen occurring when our system
of checks and balances has been weakened.
LFinally, for the reasons discussed herein, including
the need to ensure our economic and national security, we urge
this Congress to consider legalization of the 8-9 million
undocumented persons living and working here in the U.S.
1. LRacial profiling is unconstitutional\3\ and has long been a
serious problem among INS officials, especially border patrol
officials. Examples of ``a pattern of 'selective enforcement' that has
undermined the rights of citizens and legal residents and terrorized
the larger [Latino] community"\4\ include:
---------------------------------------------------------------------------
\3\ Investigating Latinos (or anyone else) based on race/ethnicity
while enforcing immigration laws is unconstitutional. See, e.g.,
Carrasca v. Pomeroy, No. 00-03590 (D.N.J. Dec. 10, 2001); No. 02-1127
(3rd Cir., Feb. 18, 2003)(www.ca3.uscourts.gov/opinarch/021127p.pdf.).
\4\ The Mainstreaming of Hate: A Report on Latinos and Harassment,
Hate Violence, and Law Enforcement Abuse in the 90s (NCLR, Nov. 1999) @
pp. 21-22.
LKentucky, 2002-2003. Amidst a series of illegal INS
raids performed without proper warrants against Latinos,
including citizens, a Latino services center is told by the INS
District Director that it must provide immigration status
information about its clients. \5\
---------------------------------------------------------------------------
\5\ Somos inmigrantes, no terroristas 2 Hoy No. 12, pp. 1-2
(Louisville's Spanish Newspaper, Feb. 14, 2003).
LWith the recent boom in the Latino population across
the South, highway patrols are stopping Latinos, especially new
immigrants, and waving through Anglos. This type of racial
profiling occurs at checkpoints as well as through normal
highway patrols, which stop and harass Latinos based on race/
ethnicity and then check their immigration status. \6\
---------------------------------------------------------------------------
\6\ See, e.g., State of Georgia Public Hearings on HB851 (Nov. 18,
2002)(testimony that Latinos stopped at checkpoints while Anglos were
waived through without question); J. Elliston, J. Elliston, ``Busting
Trust? Latino Leaders want assurances that a new INS squad won't prompt
racial profiling by local police,'' Independent Weekly (May 2, 2001),
Independent Weekly (May 2, 2001), www.indyweek.com/durham/2001-05-02/
triangles.html.; See also Discussion of racial profiling and state and
local police enforcement of federal immigration laws, Sec. 2, infra.
L``August 1999, Orange County, CA. Orange County
Sheriff Deputies allegedly harass Latino day laborers gathered
at a strip mall by barring them from business, using ethnic
---------------------------------------------------------------------------
slurs, and gave them tickets for loitering.
L``July 10, 1999, Wichita Falls, TX. According to news
reports, immigration officers broke down the front door of a
Hispanic family's home, brandished firearms, and terrorized
them, during a 'routine' attempt to round up undocumented
immigrants in their neighborhood.
L``February 1998, Seattle, WA. In a raid at Steeler
Manufacturing, INS agents detained 10 Latino workers. With one
exception, all were legal residents or U.S. citizens. One
citizen, Raul Chaves, was handcuffed and detained. Agents
finally released him when a friend brought his birth
certificate to the workplace. According to case law, ethnic
appearance alone does not constitute 'reasonable suspicion'
that a person is undocumented. . . .
L``October 20, 1997, Elba, NY. Sergio Cordoba, a
permanent resident-and a supervisor at a farm located just east
of Buffalo-witnessed immigration agents descend on Torrey
Farms, searching fields and packing sheds. The agents
handcuffed all workers who ``looked'' Latino without
specifically interrogating them as to their immigration status.
The New York Times reported that the agents knocked down doors
and wrestled people to the ground, despite the fact that the
latter offered little resistance. . . .
L``July 9, 1997, Portland, OR. INS agents in unmarked
vehicles began arresting almost fifty Latino day laborers who
were waiting for work on street corners along East Burnside
Street. The agents did not identify themselves, and arrested
the majority of people without asking questions. . . . Only
Latino men were arrested. Other people at the scene, including
a light-skin Mexican, were not even questioned.''\7\
---------------------------------------------------------------------------
\7\ The Mainstreaming of Hate, supra. n.3 @pp.21-22.: A Report on
Latinos and Harassment, Hate Violence, and Law Enforcement Abuse in the
90s (NCLR, Nov. 1999) @ pp. 21-22.
As we work to secure our borders, including ports of entry such as
airports and seaports, \8\ we must ensure that the DHS is subject to
Congressional oversight and appropriate regulations, in order to ensure
that basic American principles of equality and freedom from
discrimination are safeguarded in the process. Otherwise, our resources
will be diverted from finding real terrorists, to targeting and
punishing immigrants based on perceptions about race and ethnicity,
which are at best unreliable and at worst highly damaging to individual
---------------------------------------------------------------------------
rights as well as national security.
\8\ Note that visas issued overseas will continue to be issued by
the Department of State; however, in this respect the State Department
will be subject to DHS supervision. Sec. 428, Homeland Security Act of
2002, P.L. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
The State Department consular officials who adjudicate overseas visa
applications, and higher-level officials who make policy for them, have
not been immune to racial profiling. See Olsen v. Albright, 990 F.
Supp. 31 (D.D.C. 1997). In Olsen v. Albright, a Brazilian consular
officer contested his termination for refusal to adjudicate
nonimmigrant visas on basis of factors such as applicant's race or
national origin. Two types of policies were discriminatory-one that
used general descriptions such as ``looks poor'' and ``looks rough,''
and another that named Arab, Chinese and Koreans residing in Brazil for
additional scrutiny because they were thought to engage in ``major
fraud.'' The Court compared such policies to the terrible error
committed against Americans of Japanese ancestry, denounced them as
discriminatory and unconstitutional, and found that in the Brazilian
consulate case, ``the Consulate's visa policies stand in direct
opposition to the progress this country has made in eliminating
discrimination in the context of immigration law.'' 990 F. Supp. 39.)
See also 962 F. Supp. 5 (1997)(State Dept. requested to provide further
information about profiling scheme)(whistleblower case apparently
settled).
LMALDEF urges Congress to ensure that the DHS,
including the Directorate of Border and Transportation
Security, is subject to clear and enforceable regulations
designed to prevent racial profiling, investigate instances of
its occurrence, and provide for remedies to correct and
compensate for racial profiling.
LCongress must also ensure adequate training and
oversight of all officials involved in immigration enforcement
and services, as well as border and other security officials,
to ensure against the tendency to investigate and prosecute
based on race, ethnicity, national origin and immigration
status,\9\ instead of using objective criteria to ensure our
collective security in this multicultural democracy.
---------------------------------------------------------------------------
\9\ The Leadership Council for Civil Rights (``LCCR'') reported
that, according to a study conducted by the Arizona Attorney General's
Office, ``local police and U.S. Border Patrol Officials implementing
Operation Endeavor 'without a doubt . . . stopped, detained and
interrogated [Chandler residents] . . . purely because of the color of
their skin.' Similarly, in Katy, Texas, the INS and officers from the
Katy Police Department conducted a joint operation whereby they stopped
and detained cars driven by individuals of 'Hispanic appearance,'
conducted street swaps in which Hispanics were the only ones targeted
or questioned, and undertook searches of Hispanic residents.'' Justice
on Trial: Racial Disparities in the American Criminal Justice System
(LCCR, 2000) @ Ch. I, Race and Police, p. 4. The LCCR also reported
that: ``Overall, nearly three-quarters (73.5%) of all those deported by
the INS are of Mexican origin, according to INS statistics, even though
Mexicans constitute less than half of all undocumented persons in the
United States. Hispanics constitute approximately 60% of undocumented
persons, but well over 90% of those subjected to INS enforcement
actions are Hispanic.'' Id.
LAlso, now that the INS is no longer under the
Department of Justice, the Border & Transportation Security
Directorate (as well as the Immigration Services Division) must
work closely with and be accountable to the Civil Rights
Officer to be appointed as part of the new Department of
Homeland Security. Furthermore, DHS-wide accountability to an
independent Inspector General authorized to investigate any
civil rights, due process, civil liberties and/or human rights
---------------------------------------------------------------------------
violations is essential.
2. LThe use of state and local police to enforce immigration laws
leads to higher incidences of racial profiling and other abuses of due
process and civil rights. Until recently, the Justice Department agreed
with the Supreme Court \10\ that the power to enforce immigration laws
rested exclusively with the federal government.\11\ However, Attorney
General Ashcroft's statements during a press conference in June 2002
confirmed the existence of a new DOJ opinion. Ashcroft stated that the
DOJ now believes that state and local officials have some degree of
``inherent authority'' to engage in immigration enforcement. The ACLU
Immigrants' Rights Project prepared a Freedom of Information Act
(``FOIA'') request for a copy of Attorney General Ashcroft's DOJ
opinion that would overturn American constitutional law, \12\ but to
date the DOJ has refused to turn over documents in response to the FOIA
request. Because we do not have any information as to the basis of his
opinion, we are uncertain as to what legal basis Attorney General
Ashcroft might have to assign immigration law enforcement functions
away from the federal government.
---------------------------------------------------------------------------
\10\ See, e.g., De Canas v. Bica, 424 U.S. at 351 (1976) at 354.
(``The power to regulate immigration is unquestionably exclusively a
federal power.'')
\11\ See Memorandum Opinion for the United States Attorney Southern
District of California, Assistance by State and Local Police in
Apprehending Illegal Aliens (DOJ, Feb. 5, 1996)(state and local police
may assist only in cases of criminal violations of federal immigration
laws, under the circumstances of a Terry stop; or in cases of
emergency, if a special deputization has been undertaken by Justice and
supervised by federal officials; or if an exceptional memorandum of
understanding has been agreed to, in accordance with special provisions
of the 1996 federal immigration law reforms).
\12\ See Michael Wishnie, Devolution of Immigration Power, Equal
Protection and Federalism, 76 N.Y.U.L. Rev. 493 (May 2001).
---------------------------------------------------------------------------
State and local police are not empowered to enforce or involve
themselves in federal immigration laws because such plenary power rests
exclusively with the federal government. State and local police are not
trained in immigration law, and case after case has proven the tendency
of untrained officials to use racial profiling rather than objective
standards in their quest for immigration law enforcement. We know of
numerous cases in which Latinos have been stopped, questioned
aggressively, intimidated and arrested because state and local police
have presumptively acted on their misguided hunches about their
immigration status.\13\ As this Congress and Administration are well
aware, Latinos are now the largest minority in the United States, and
the great majority of Latinos are here legally-in fact they are
fighting our wars, defending our national values, contributing to the
strength of the American family, and acting as leaders in our
government and business communities. Of course, Hispanics enjoy the
right to freedom from discrimination the same as any other American,
and must not be subject to racial profiling by state and local police.
Furthermore, although state and local police can and should assist in
national security matters, in the end it is the job of the federal
government to decide who to admit and who to deny visas, residency and
citizenship, and against whom to enforce federal immigration law.
---------------------------------------------------------------------------
\13\ See, e.g., Lopez v. City of Rogers, Civil Action No. 01-5061
(W.D.Ark. 2002).
LCongress should insist upon receiving a copy of the
new DOJ Office of Legal Counsel opinion, and review the
advisability of involving state and local police in immigration
matters. As the Homeland Security Act is being implemented,
regulations and oversight should provide that state and local
police may only be involved in immigration matters under very
limited circumstances, as prescribed by well-settled
constitutional law.\14\
---------------------------------------------------------------------------
\14\ For example, under current federal law, Memoranda of
Understanding (``MOU'') between local police and the INS typically
provide that local police ``shall not stop an individual on the street
or pull over a car, when an individual/driver has not committed a
violation, merely to find out whether the person can prove he or she is
in the U.S. legally.'' Such MOUs further stipulate that ``officers will
not contact the INS without notifying the police chief, and that when
foreign-born suspects are in custody, they will be guaranteed access to
a lawyer and consular officials.'' See, e.g., J. Elliston, ``Busting
Trust? Latino leaders want assurances that a new INS squad won't prompt
racial profiling by local police,'' supra. n. 5.
LIf state and local police are at all involved in
immigration law enforcement, they should be accountable under
the highest standards of the Equal Protection clause.\15\
---------------------------------------------------------------------------
\15\ See Matthews v. Diaz, 426 U.S. 67 (1976); Graham v.
Richardson, 403 U.S. 365 (1971)(anti-immigrant welfare discrimination
violates Equal Protection); and See Takahashi v. Fish & Game Comm'n.,
334 U.S. 410 (1948)(anti-immigrant discrimination in granting of
commercial fishing licenses violated Equal Protection); Yick Wo v.
Hopkins, 118 U.S. 356 (1886)(same for anti-immigrant laundry licensing
scheme). It is important to note that when state and local police, or
for that matter any federal officials, make decisions based upon race
or ethnicity-stopping Latinos on the basis of being Latino-their
actions are subject to strict scrutiny under the Equal Protection
clause.
3. LHuman rights violations at our border with Mexico have been
well-documented by the United Nations, which found that Operation
Gatekeeper and other similar tactics are leading to the death of
hundreds of Mexicans in the desert every year. Operation Gatekeeper has
diverted illegal border crossings from California to the harsh and
dangerous Arizona desert, increased abuses of migrants by smugglers,
drug traffickers, and traffickers in women and children, but has not
reduced illegal immigration at all. The U.N. denounced the private
vigilantes who are undertaking to intercept Mexican migration,
documenting their racism and xenophobia, and further denounced the
impunity with which vigilantes terrorize peasants crossing the
border.\16\
---------------------------------------------------------------------------
\16\ The United Nations Special Rapporteur on Migration found that
the International Covenant on Civil and Political Rights (``ICCPR''),
the Convention for the Elimination of all forms of Racial
Discrimination (``CERD''), the Convention for the Elimination of all
forms of Discrimination Against Women (``CEDAW''), and the Convention
Against Torture were being violated at the border, and that the
government should take all measures necessary to remedy these human
rights violations. As Congress is aware, all of these treaties (and the
legal obligations therein) have been ratified by and are part of the
internal law of the United States. U.N. Spec. Rap. Human Rights of
Migrants, Executive Summary, Mission to the Border of the United States
and Mexico, U.N. Doc. No. E/CN.4/2003/85/Add.3 (Oct. 30, 2002).
---------------------------------------------------------------------------
Now, more than ever, we need the cooperation of the United Nations,
and we most certainly need to maintain good relations with our Mexican
neighbors, who we count on for economic stability and national
security. Violating the human rights of Latin Americans crossing the
border will do nothing to increase national security, and in fact may
set us back. Every human being is entitled to respect of his or her
fundamental human rights.
LFor all these reasons, we urge Congress to consider
the relevance of the high-level bilateral negotiations that
were underway in 2001, in which the United States and Mexico
were ``to hold formal negotiations on the future direction of
migration policies in order to 'create a process of orderly
migration that guarantees humane treatment of migrants,
provides protection of their legal rights, ensures acceptable
work conditions for migrants and also recognizes the right of
nations to control the flow of people across their
borders.'"\17\
---------------------------------------------------------------------------
\17\ Id. @ para.53 (citing United States-Mexico Joint Communique on
Migration Talks, June 2001, www.state.gov/r/pa/prs/ps/2001/3733.htm
(consulted on July 12, 2002)).
LAnd we urge the DHS to ensure compliance with the
human rights law embodied in our American constitutional
system, which is founded upon the respect for and equal
protection of individual rights and liberties.\18\
---------------------------------------------------------------------------
\18\ The legal norms of human rights treaties cited by the U.N.
Special Rapporteur on Migration (ICCPR, CEDAW, CERD, CAT)(note 15,
supra.) are also embodied in the fundamental values of our nation and
in the 1st, 4th, 5th and 14th amendments of our Constitution, which
apply to all persons within our borders, even including those who
entered illegally. Matthews v. Diaz, 426 U.S. 67 (1976); Plyler v. Doe,
457 U.S. 202 (1982).
4. LFinally, this is the time to recognize that our failed
immigration policy must be normalized. This Congress must re-evaluate
and change the complete lack of legal recognition of millions of
immigrants who are the backbone of the U.S. economy. For example,
everyone is aware that there are over 4 million undocumented Mexicans
living and working here in the U.S., providing our services,
construction, agricultural and other industries with essential labor,
by doing the jobs that U.S. citizens and residents do not want. As Alan
Greenspan acknowledges, even with the current economic crisis, our
economy is dependent on undocumented workers, who are replacing the
productivity lost through the aging of our workforce.\19\
---------------------------------------------------------------------------
\19\ See Federal Reserve Board Chairman Alan Greenspan's Semiannual
Monetary Report to Congress, Uncertainty on Iraq Limits Economic
Growth, Greenspan Says, U.S. Dept. of State, Int.l. Info. Programs
(Feb. 11, 2003) @ p. 9.
---------------------------------------------------------------------------
The portion of Mexican workers in the U.S. has doubled in the past
decade, and they are providing work that is increasingly vital to the
U.S. economy.\20\ The great majority of undocumented Mexicans came here
to save their families from abject poverty.\21\ Under the North
American Free Trade Agreement (``NAFTA''), jobs are being lost in
Mexico, which is now importing U.S. agricultural products.\22\ As long
as globalization is crucial to the U.S. economy, our free trade policy
must take into account migration.
---------------------------------------------------------------------------
\20\ See Mexican Immigrants and the U.S. Economy: An Increasingly
Vital Role, Vol. 1, Issue 2, Immigration Policy Focus (American
Immigration Law Found., Sept. 2002).
\21\ See Dan Griswold, Willing Workers: Fixing the Problem of
Illegal Mexican Migration to the U.S. (Cato Institute, Trade Policy
Analysis No. 19, Oct. 15, 2002).
\22\ Ginger Thompson, ``Nafta to Open Floodgates, Engulfing Rural
Mexico,'' New York Times (Dec. 9, 2002), at A3.
LFor whatever reason 8-9 million undocumented workers
are here, Congress must guard against jeopardizing the U.S.
economy by marginalizing their contribution. Moreover, this is
no time to keep millions of people legally unidentifiable and
unable to interact with government about safety and national
---------------------------------------------------------------------------
security issues.
LFor all these reasons, MALDEF urges Congress to re-
open the legalization discussions that culminated in the Fox-
Bush visit of September 5, 2001, and remember our commitment to
provide for legalization of undocumented workers in the U.S.,
and to negotiate fair and effective future migration
policies.\23\
\23\ As the CATO Institute summarizes: ``Although the U.S.
government has encouraged closer trade, investment, and political ties
with Mexico, it has labored in vain to keep a lid on the flow of labor
across the border. Since 1986, the numbers of tax dollars appropriated
and agents assigned for border control have risen dramatically, yet by
any real measure of results, the effort to constrict illegal
immigration has failed. . . . Demand for low-skilled labor continues to
grow in the United States while the domestic supply of suitable workers
inexorably declines-yet U.S. immigration law contains virtually no
legal channel through which low-skilled immigrant workers can enter the
country to fill that gap. The result is an illegal flow of workers
characterized by more permanent and less circular migration, smuggling,
document fraud, deaths at the border, artificially depressed wages, and
threats to civil liberties. . . .
``Legalizing Mexican migration would, in one stroke, bring a huge
underground market into the open. It would allow American producers in
important sectors of our economy to hire the workers they need to grow.
It would raise wages and working conditions for millions of low-skilled
workers and spur investment in human capital. It would free resources
and personnel for the war on terrorism.'' Dan Griswold, Trade Policy
Analysis No. 19, supra. n. 20.
LThe situation of all undocumented persons should be
normalized so that we can move forward towards economic
recovery and national security together.
LRecent Congressional proposals along these lines
deserve urgent attention, as we must take these reasonable
economic and national security concerns into account, and
fashion a just, effective, sensible solution to the fate of 8-9
million people living in the U.S.
Conclusion:
The problems discussed above existed long before September 11,
2001, and will continue to exist and become compounded unless they are
addressed directly. Across the board, experts agree that failure to
resolve these problems will only be detrimental to our collective
national security.\24\ The Homeland Security Act in and of itself does
not provide adequate protection for civil rights. MALDEF urges this
Congress and the Administration to take positive, concrete measures to
ensure the protection of the fundamental rights of immigrants, as we
make the transition to the new Department of Homeland Security.
---------------------------------------------------------------------------
\24\ See Moving Forward in Reforming Our Immigration System: Quotes
from Across the Spectrum (Nat'l. Immigration Forum, Feb. 2003)(citing
Editorials, Columns and Op-Eds, Elected and Appointed Officials,
including the Bush Administration, and Diverse Allies of the Nat'l.
Immigration Forum).
A national non-profit organization, MALDEF promotes and protects
the rights of Latinos through advocacy, community education and
outreach, leadership development, higher education scholarships and
when necessary, through the legal system.
# # #
February 25, 2003
----------
----------
-