[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMMIGRATION REMOVAL PROCEDURES IMPLEMENTED IN THE AFTERMATH OF THE
SEPTEMBER 11, 2001 ATTACKS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JUNE 30, 2005
__________
Serial No. 109-54
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
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COMMITTEE ON THE JUDICIARY
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
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Luke Bellocchi, Full Committee Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
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JUNE 30, 2005
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....................... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member Committee on the
Judiciary...................................................... 2
The Honorable Howard Berman, a Representative in Congress from
the State of California........................................ 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
The Honorable Martin T. Meehan, a Representative in Congress from
the State of Massachusetts..................................... 7
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California............................................ 7
The Honorable William D. Delahunt, a Representative in Congress
from the State of Massachusetts................................ 8
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California................................... 8
WITNESSES
Ms. Lily Swenson, Deputy Associate Attorney General, U.S.
Department of Justice
Oral Testimony................................................. 11
Prepared Statement............................................. 13
Mr. Joseph Greene, Director of Training and Development, U.S.
Immigration and Customs Enforcement, U.S. Department of
Homeland Security
Oral Testimony................................................. 26
Prepared Statement............................................. 27
Mr. Paul Rosenzweig, Senior Legal Research Fellow, Center for
Legal and Judicial Studies, The Heritage Foundation
Oral Testimony................................................. 30
Prepared Statement............................................. 32
Mr. William West, retired Supervisory Special Agent, U.S.
Department of Justice, Immigration and Naturalization Service,
U.S. Department of Homeland Security, Immigration and Customs
Enforcement
Oral Testimony................................................. 41
Prepared Statement............................................. 42
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Immigration, Border Security, and
Claims......................................................... 69
IMMIGRATION REMOVAL PROCEDURES IMPLEMENTED IN THE AFTERMATH OF THE
SEPTEMBER 11, 2001 ATTACKS
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THURSDAY, JUNE 30, 2005
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, the Honorable John
Hostettler (Chair of the Subcommittee) presiding.
Mr. Hostettler. The Subcommittee will come to order.
Today, the Subcommittee on Immigration, Border Security,
and Claims will review a series of procedural changes that were
implemented after the September 11th attacks to address
security concerns.
On September 11, 2001, terrorists hijacked and crashed four
airplanes killing more than 2,900 people including all 246
people aboard the four airplanes.
The FBI immediately thereafter initiated a massive
investigation called ``PENTTBOM'' into this coordinated
terrorist attack. This investigation focused on identifying the
terrorists who hijacked the airplanes and anyone who aided
their efforts, as well as on preventing follow-up attacks. In
the wake of those attacks, and in advance of the invasion of
Iraq, the Justice Department and INS implemented procedures
that they deemed necessary to protect the American people from
alien terrorists. Some of those procedures have been criticized
because of their effects on the aliens involved.
One procedure that has been so criticized is the closure of
removal proceedings under the so-called ``Creppy memo.'' While
investigating the September 11th attacks, the Government became
aware of numerous aliens who were present in this country in
violation of immigration laws. A few of those aliens, as well
as some aliens already in Government custody, were identified
as ``special interest'' cases on the basis of law enforcement
or intelligence information that ``they might have connections
with, or possess information pertaining to, terrorist
activity.'' In a memo issued 10 days after the attacks, Chief
Immigration Judge Michael Creppy issued guidance on the
handling of special interest cases instructing immigration
judges to close to the public hearings in such cases. That
guidance, which was last followed in December 2002, has been
superseded by a regulation that allows Immigration Judges to
issue protective orders for specific information on a case-by-
case basis.
Some have been critical of the procedure used for charging
aliens with immigration violations. Nine days after the
September 11th attacks, the INS amended its regulations to
extend the time period in which an arrested alien must be
notified of the charges against him from 24 to 48 hours or a
longer period where there is, ``an emergency or other
extraordinary circumstance.'' Critics have argued that this
rule can result in an alien being detained indefinitely without
charge. I note that since it was issued, the Department of
Homeland Security has delineated what constitutes an emergency
or other extraordinary circumstance.
Other immigration procedures that have been the subjects of
criticism are the detention policies for certain asylum
seekers. In the Matter of D-J, the Attorney General held that a
Haitian who arrived by sea could be detained while his asylum
case was pending. The goal of this policy was to deter other
Haitians from undertaking, en masse, dangerous sea journeys to
the United States. Under Operation Liberty Shield, announced by
DHS in March 2003, asylum applicants from nations with a
significant al Qaeda presence were detained until their claims
could be adjudicated. DHS has reported that five aliens were
detained under this program, four of them for less than 2 days,
the fifth, subject to mandatory detention for a sexual assault
conviction, for 5 months.
Alien advocates have criticized an INS regulation
implemented in October of 2001, that allows for the staying of
Immigration Judge release decisions pending, INS and now ICE,
appeal of those decisions. Critics have complained that this
provision undermines the authority of the Immigration Court and
denies aliens due process. The Administration contends that
this procedure is necessary to ensure that dangerous aliens
remain in custody until the Board of Immigration Appeals can
review the case. The Administration argues that, in essence,
this procedure maintains the status quo pending appeal just
like a Federal Court's stay of removal.
We will consider each of these procedures at today's
hearing. It should be noted that none of the procedures relied
on any of the provisions of the PATRIOT Act.
At this time, I now turn to the Ranking Member of the Full
Committee, the gentleman from Michigan, for purposes of an
opening statement.
Mr. Conyers. Thank you, Mr. Chairman.
I appreciate that these hearings are being brought today to
consider the measures that I have joined Mr. Berman and Mr.
Delahunt in H.R. 1502. I think it is very important and
appropriate that we do this.
Now, we began, of course, by recognizing that there is a
great confusion about what is in the PATRIOT Act and what is
outside of the PATRIOT Act, and that is because many of the
activities were unilateral on the part of the executive branch
or the Attorney General. And therefore, it was not clear to
many people--and they weren't all citizens--many in the
Congress. It just wasn't clear. And so although we want
everyone to become more informed, the PATRIOT Act as a term has
become a code for any post-September 11 policy that diminishes
transparency or permits Government intrusion without adequate
oversight.
So for us to consider the suggestions made here in 1502 to
strike an appropriate balance between security needs and civil
liberties is absolutely appropriate. Due process protections
and civil liberties for noncitizens in the United States
clearly enhance the effectiveness of our Nation's enforcement
activity. I have been deeply involved in these proceedings
since one of my constituents, a respected religious leader, was
deported after being detained 18 months based on accusations of
ties to a charitable organization that was suspected of being
linked to terrorism. Rabih Haddad was deported during the
night. Neither his attorney, or his family were notified about
it. And at his immigration hearing, neither his family nor his
Congressman could gain access to the proceedings that were
taking place at that time. So I am very happy that we are here
today to discuss the provisions in 1502. Thank you, Mr.
Chairman.
Mr. Hostettler. Chair now recognizes the gentleman from
California for 5 minutes for purposes of an opening statement.
Mr. Berman. Thank you very much, Mr. Chairman.
And I do want to thank you for scheduling this hearing
because I think it is an important one. You have put four
policies on the table for discussion today, each of which was
unilaterally adopted by the Administration in the aftermath of
the terrorist attacks on September 11, 2001. Though we have
heard from the Inspector General of the Department of Justice
about his report on the results of one of these policies, we
have not otherwise exercised oversight on these issues, and so
I particularly appreciate the opportunity to do so today.
In the days and weeks after the September 11, 2001
terrorist attacks, the Department of Justice and the FBI were
facing unprecedented challenges. Judging their actions in
hindsight, we must consider that they were acting in a time of
crisis, the magnitude of which our Nation had not experienced
in decades. I think we should judge carefully and then focus
our efforts on ensuring that the mistakes in judgment that
occurred during that period are not repeated. Oversight is our
duty, but once we have done the oversight, we should fix
problems where we have identified that.
In that vein, Mr. Chairman, I have introduced a bill with
Mr. Delahunt called the Civil Liberties Restoration Act. I
appreciate you allowing his participation in this hearing. The
first four sections of the Civil Liberties Restoration Act
directly address the four policies that are the topic of our
hearing today. The remaining eight sections of the bill cover
issues from special registration and exercise of prosecutorial
discretion, to data mining and production of business records.
It is the place of Congress to make certain that our Government
is given both adequate resources and the authority to protect
the well-being of the American people, and clear legal
standards and oversight that will protect their civil
liberties. Where there is a balance to be had that does not
diminish the ability to protect the country and at the same
time conforms to our principles of open Government, then that
balance should be struck.
The issues we address today in this hearing, I think for
those purposes, the balance can be found in the Civil Liberties
Restoration Act.
And the issue of closed immigration hearings, we will
examine today. To take one example on those four issues, the
result of the so-called Creppy memo that relayed the order of
the Attorney General that all removal hearings for, ``special
interest,'' detainees be closed to the public, the press and
the family; considering the timing of the memo, just 10 days
after the country had been attacked, I understand the concern
that led to the policy. If the goal was to protect information
sensitive to our national security, who could disagree with the
goal of that policy? The disagreement is not with the goal of
the policy; it is with the way it was executed. In my mind,
this is not a question of whether or not portions of hearings
that involve sensitive national security information ought to
be closed. The question is who ought to have the authority to
close them, and whether that authority is exercised across the
board or on a case-by-case basis. There is a balance to be
struck here.
The same sort of across-the-board treatment is also the
reason I take issue with the Administration's decision to deny
whole classes of people individual bond hearings. The desire
for balance, Mr. Chairman, was the starting point from which
each provision of the Civil Liberties Restoration Act grew.
These aren't partisan issues. I believe Mr. Rosenzweig will
tell you that it is not everyday he is invited to testify by a
Democrat. We appreciate him being here today. He is not alone
in his judgment of our proposals. Two recent reports by the
bipartisan Constitution Project came to the following
conclusions relevant to our hearing today. There should be no
blanket closure of deportation hearings. The Government should
release the names of everyone it detains except under
compelling circumstances as determined by a court. All persons
in the United States are entitled to pretrial or prehearing
release unless the Government demonstrates to the appropriate
tribunal that the individual is likely to flee or poses a
danger to the community.
These conclusions are entirely consistent with our
proposals, and they were endorsed by David Keene of the
American Conservative Union and Paul Weyrich of the Free
Congress Research and Education Foundation. In previous
oversight hearings, I have asked both Attorney General Gonzales
and Deputy Attorney General Comey to address the issues of
blanket closure of immigration hearings and delayed notice of
charges. The Attorney General responded by saying that, without
question, mistakes were made. And those are in quotes. Deputy
Attorney General Comey said he never understood the need for
the former, that is the blanket closure of immigration
hearings, and called the latter a screw up. In some cases, they
noted the policies were no longer in practice. Others, they
willingly admitted were mistakes in judgment. Whether or not
the policies are currently operative, the Committee has
jurisdiction and should exercise oversight to be certain that
the mistakes acknowledged will not be repeated. The way to
ensure that, Mr. Chairman, is for Congress to speak on the
issue.
Finally, Mr. Chairman, the Chair of the Full Committee
recently expressed frustration and concern that the American
public has become confused about what policies are part of the
PATRIOT Act and which are not. The Chairman is right, the name
PATRIOT Act has become code for all of the Administration's
immigration and law enforcement activities after September 11,
2001. I agree the public should be better informed and every
effort should be made not to create further confusion. Even
though most of the issues we will examine today are not part of
the PATRIOT Act, they have a place in oversight of anti-terror
powers. The fact that they were implemented without input from
Congress furthers this case, and I appreciate the opportunity
to examine them in this hearing. Thank you, Mr. Chairman.
Mr. Hostettler. The Chair recognizes the gentlelady from
Texas, Ranking Member of the Subcommittee for 5 minutes, for
purposes of an opening statement.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
This is the Judiciary Committee that I know and love
because this is an important hearing, and I congratulate the
Chairman and the Chairman of the Full Committee and the Ranking
Member of the Full Committee and Mr. Berman and Mr. Delahunt.
Their legislation, I am an original cosponsor of, and I
congratulate them for moving forward on these issues. I saw the
need for this, as well, as we began to look at comprehensive
immigration reform and, in particular, the Save America
Comprehensive Immigration bill, which we have authored, I have
authored, deals with the need for an individual case-by-case
bond determination in immigration cases. And it prohibits
blanket denials of bond. These are some of the issues we are
now facing along with some of the provisions in the PATRIOT
Act. I have said many times that immigration does not equate to
terrorism, but I understand it was difficult to maintain that
distinction during the aftermath of the September 11 attacks.
The purpose of this hearing is to take a calm look at some
of the immigration removal procedures and detention policies
that were implemented during that period. On September 21,
2001, Michael Creppy, the Chief Immigration Judge for the
Executive Office for Immigration Review issued a memorandum to
all immigration judges advising them that the Attorney General
had implemented additional security procedures for certain
cases. In these cases, the immigration judges were required to
close the hearings to the public and to avoid the disclosure of
any information about the cases to anyone outside the
Immigration Court. Secret hearings are inconsistent with our
most basic principles of fairness. Immigration removal
proceedings determine whether individuals who spend months in
detention will be separated from their families and then be
removed from a country in which they may have lived for many,
many years. Hearings should not be conducted behind closed
doors unless there is a compelling reason for such secrecy.
Many of us, including our former colleague, Dave Bonior
worked extensively on the question of secret evidence; that
secret evidence blinded, I believe, both prosecutor and, of
course, defense. It took away from our system the purity of
which we all are very proud of, and I think the basic premises
of the Constitution, which in essence, indicates that there is
minimally due process. Due process is not denial of justice.
Due process is not denial of security. Due process is not
reckless.
This practice is addressed by Congressman Berman's Civil
Liberties Restoration Act of 2005, H.R. 1502, which I have
joined, as I indicated, with Congressman Delahunt. Section 101
of the Civil Liberties Restoration Act will prohibit blanket
closures of immigration hearings. It would permit closure only
when the Government can demonstrate a compelling privacy or
national security interest. Before September 11, 2001, the
former Immigration and Naturalization Service was required to
decide whether it was going to initiate deportation proceedings
within 24 hours of arresting an alien. On September 20, 2001,
this was changed to 48 hours or an additional reasonable period
of time, on emergency or extraordinary circumstances. Section
102 of the Civil Liberties Restoration Act would require DHS to
initiate proceedings within 48 hours of an alien's arrest or
detention. It would also require that any alien held for more
than 48 hours be brought before an immigration judge within 72
hours of arrest or detention. This would not apply to aliens
who are certified by the Attorney General to have engaged in
espionage or a terrorist offense.
Might I just add an anecdotal story that came to our
attention recently out of Virginia. The facts are not exactly
the same, but a Pakistani doctor, a physician, who happened to
take a course in nuclear medicine was simply held by members of
law enforcement, simply held. No information was given. No
understanding of why he was held, ultimately released, and
never did the law enforcement agencies indicate why or indicate
that he had been vindicated. These are just slight of hands
that I think we, our country, is above and not beneath.
Although the Supreme Court has upheld mandatory detention
when Congress has expressly required such detention for a
discrete class of noncitizens, it has not authorized the
executive branch to make sweeping, group-wide detention
decisions. Since September 11, 2001, the Department of Justice
and the Department of Homeland Security have mandated the
detention of certain classes of noncitizens without any
possibility for release until the conclusion of proceedings
against them. Section 202 would require DHS to provide all
alien detainees with an individualized assessment as to whether
the detainee poses a flight risk or a threat to public safety,
except detainees in categories specifically designated by
Congress as posing a special threat.
On October 31, 2001, the Justice Department issued a rule
that enables the Government to nullify a judge's order to
release an individual on bond after finding that he is neither
a flight risk nor a danger to the community. The rule permits
the Department to automatically stay an immigration judge's
decision to release an alien if the Government originally
denied bond or set it at $10,000 or more. No standards govern
the granting of a stay in these cases, and it is simply at the
discretion of the Government.
We are without the Constitution in our hands if we remove
the right of the judiciary to review or to overturn decisions.
Section 203 permits the Board of Immigration Appeals to stay
the immigration judge's decision to release the alien for a
limited time period and only when the Government is likely to
prevail in appealing that decision and there is a risk of
irreparable harm in the absence of a stay. I hope that we can
work together.
As I started out, this is a Judiciary Committee that passed
a bipartisan PATRIOT Act after 9/11. And I believe we have the
opportunity in this legislation to recapture both that spirit
and of course that challenge and responsibility on behalf of
the American people. Mr. Chairman, I thank you and I hope and
look forward that we will be able to do so.
Mr. Hostettler. I thank the gentlelady. The Chair now
recognizes Mr. Meehan, the gentleman from Massachusetts, for 5
minutes for purposes of an opening statement.
Mr. Meehan. I just want to thank the Chairman and the
Ranking Member for providing us an opportunity for a hearing. I
have been working with the Iranian-American Bar Association to
catalogue and report the instances of what they have determined
have been appalling treatment at many of these centers.
In 2004, the Iranian-American Bar Association conducted a
study on the implementation of the NSEERS program. And I have
to say, the results were staggering. At call-in registration
centers, detainees encountered unsanitary facilities and
incurred questioning that was both humiliating and unnecessary,
and many were forced to stay for days without sufficient food
or bedding. My line of questioning is going to be on the NSEERS
program and the status of that program. More than 13,000
individuals who voluntarily complied with the registration
program were placed in immigration removal proceedings for
immigration violations not related to terrorism.
And last year, I asked Secretary Tom Ridge to produce a
list of names and nationalities and a total number of NSEERS
registrants with pending permanent residency applications that
had been denied. In December of 2003, the Department of
Homeland Security suspended the requirement that all
individuals previously registered with the NSEERS reregister
after 30 days and one year in the United States, but the NSEERS
was not canceled and the call-in registration program
continued. This is a great opportunity for Members of this
Committee to look at this and other issues. And I thank the
Chairman and Ranking Member for calling this hearing. And I
yield back the balance of my time.
Mr. Hostettler. I thank the gentleman.
At this time, the Chair recognizes the gentlelady from
California, Ms. Lofgren for purposes of an opening statement.
Ms. Lofgren. Thank you, Mr. Chairman.
I will not use my entire 5 minutes. I would like to express
my gratitude for this hearing. I think that this is an
important subject, and I think it is important to note that,
while the Nation is focused on terrorism relative to this
subject, in fact, what has occurred, at least from what I have
seen in the constituent cases coming from my office, it is
everybody; it has nothing to do with terrorism. It is wives and
mothers of American citizens from countries of suspicion if you
even want to use that. It is a very broad approach that has
completely changed the nature and tenor of the way we deal with
families, the families of United States citizens. And I think
that is very much worthy of our review. I do have a question
that I hope the Government witnesses will address, and that is
the provision in the PATRIOT Act that requires that an alien
either be brought before a magistrate or released in 7 days and
why the Government feels that that provision can be ignored. I
am interested in that, and I yield to Mr. Delahunt.
Mr. Hostettler. Does the gentlelady yield back her time?
Ms. Lofgren. I yield.
Mr. Hostettler. At this time, without objection, the
gentleman from Massachusetts, Mr. Delahunt will be permitted to
participate in today's Subcommittee. And without objection, the
gentleman is recognized for 5 minutes for purposes of an
opening statement.
Mr. Delahunt. Thank you, Mr. Chairman and I appreciate the
accommodation. First, let me associate myself with the remarks
of my cosponsor, Mr. Berman. I genuinely appreciate the
opportunity to participate. And I want to thank you and through
you the Chair of the Full Committee. I think this is a very
important hearing. I just wanted to make one observation. I
think in your opening statement, Mr. Chairman, you used the
phrase an ``advocate for aliens.'' I don't want that impression
to be that Mr. Berman and myself are advocating for aliens.
What we are doing is advocating for long-held and profound
American values, such as transparency and fairness.
And also, I think we consider ourselves as advocating for
the appropriate role of the United States Congress in our
Democratic system where consultation and oversight are keys to
the functioning of that democracy. And I think that is what we
are here advocating for. I am concerned, too, in the sense of
the perception that is being created worldwide, given some of
the anecdotes we have already heard relative to the issues,
relative to these issues about specific cases.
I just want to note that this past April, a GAO report
stated, and I am quoting from this report, recent polling data
show that anti-Americanism is spreading and deepening around
the world. Such anti-American sentiments can increase foreign
public support for terrorism directed against Americans, impact
the cost and effectiveness of military operations, weaken the
United States' ability to align with other nations in pursuit
of common policy objectives, and dampen foreign public's
enthusiasm for U.S. business services and products. While I
would suggest that we ignore this to our peril, in fact, a
recent poll that was released last week indicated that those
people who we consider our closest ally in the war on terror,
the British people, have a better opinion of China than they do
of the United States.
Again, the kind of anecdotes we have heard in opening
statements here today I would suggest feed into that
perception, and we have to deal with it. And I think the
legislation that we have put forth goes in the direction of
addressing the concerns and that perception. And with that, I
yield back.
Mr. Hostettler. I thank the gentleman.
The Chair now recognizes the gentleman from California for
purposes of an opening statement.
Mr. Lungren. Thank you very much, Mr. Chairman.
And I want to thank you for having this hearing. When we
had Mr. Comey here a couple of weeks ago, I think Mr. Comey put
in proper perspective many of the issues we are dealing with
here today, and that is immediately after 9/11, there was an
effort, a good faith effort made by the Congress and members of
the Administration, particularly by the Justice Department, to
respond to the threat that was out there. This was a new threat
with challenging issues that we had not faced before. Decisions
were made at that time to respond in the best good faith way
that we possibly could both here in the Congress and by the
Administration, and particularly at the Department of Justice.
As Mr. Comey suggested, some of the processes and procedures
that were used at that time are no longer being used, both
because they are no longer necessary or upon reflection, we
realized that we could do a better job.
There was never, based on anything I could find, a
suggestion that there was an intent not to protect the civil
liberties of the people of this Nation. And I think we all
agree with the idea that the terrorists will succeed if, on the
one hand, they destroy us physically or if, on the other hand,
they cause us to change who and what we are and cause us in any
real way to tear up the Constitution. In my review of the facts
at this point, I have not been able to see a case being made
for that on the part of the Department of Justice, the
Administration, or the Members of Congress or Congress
collectively.
At the same time, it is incumbent upon us as the oversight
committee to ensure that that does not happen, and for us to
look at what we did immediately thereafter and see after, upon
reflection, we would proceed differently in the future, take
lessons out of that and never forget that we are still involved
in a war on terror. We are involved in a war with people who
told us in 1998 that it was the obligation of everyone who was
loyal to their cause to kill every American man, woman and
child anywhere in the world, combatant and noncombatant,
civilian and noncivilian. That is a threat we have never had
before. It is an ongoing threat. And while I join Members on
both sides of the aisle in working diligently to ensure that we
not make mistakes that result in our inattention to the
protection of civil liberties, we also understand that this is
a balance that we are striking precisely because we are
involved in a war. If there were no 9/11, the actions that we
are looking at with respect to the Administration would not be
at question, because those actions would have been taken.
And so I appreciate the comments of my colleagues on both
sides of the aisle, but I hope that we would recognize that
what was done was in response to a perceived and real threat,
number one. Number two, that there have been evolutions in the
policies since that time. Number three, that it does none of us
any good if we succumb to the temptation of hyping mistakes
that were made and we not be overly broad in our observations,
criticism or in fact, commendations. This is an ongoing process
and something that requires our best and highest work, and I
hope that we can work in that manner. I, for one, will say that
I have found, thus far, the Justice Department to be
forthcoming with answers to questions that I have raised and
with respect, for instance, to certain parts of the PATRIOT
Act; while they don't always agree with my approach on things,
have been open to suggestions of some tweaking of that act. And
so I look forward to hearing from the witnesses. I look forward
to hearing my colleagues and look forward to working, very
importantly, on behalf of the American people to deal with this
delicate issue of the balance between the threat that is out
there and our preservation of our civil liberties as contained
in our statutes and the Constitution. And I thank the Chairman
for the time.
Mr. Hostettler. At this time, I will introduce members on
our panel of witnesses.
Lily Swenson currently serves as Deputy Associate Attorney
General at the U.S. Department of Justice where she oversees
immigration litigation and other issues. Prior to joining DOJ,
Ms. Swenson was a partner in the Washington office of Mayer,
Brown, Rowe & Maw. Her practice focused primarily on class
action and appellate litigation. Ms. Swenson clerked for the
Honorable Michael Kanne of the United States Court of Appeals
for the Seventh Circuit. She graduated from the University of
Wisconsin, Madison, and earned her J.D. From the University of
Minnesota School of Law.
Joseph Greene is the Director of the Office of Training and
Development at Immigration and Customs Enforcement, or ICE. He
has served in the Office of Investigations at ICE since its
inception in March 2003. He was named the Deputy Assistant
director for the Smuggling and Public Safety Unit and then
served as Deputy Assistant Director for the Mission Support
Division. Mr. Greene began his INS career as an immigration
inspector at JFK airport in New York. He has a Master's Degree
in Philosophy from Fordham University in New York.
Paul Rosenzweig is senior legal research fellow at the
Center for Legal and Judicial Studies at the Heritage
Foundation, and an adjunct professor of law at George Mason
University School of Law. He also serves on the Department of
Homeland Security's Data Privacy and Integrity Advisory
Committee. He has been a trial attorney in the Environmental
Crimes Section of the Department of Justice, investigative
counsel to the House Committee on Transportation and
Infrastructure, and senior litigation counsel in the Office of
the Independent Counsel. Mr. Rosenzweig earned his BA from
Haverford College, an M.S. In Chemical Oceanography, from the
Scripps Institution of Oceanography and is a graduate of the
University of Chicago Law School.
Bill West retired as a supervisory special agent with ICE
in May of 2003. In 1978, William West began service as a
special agent with the investigations division of the U.S.
Immigration and Naturalization Service. During his years at
INS, he conducted a full range of immigration-related criminal
investigations including fraud, smuggling, alien prostitution
and criminal alien deportation cases. After joining the Miami
District Office of the INS in 1991, Mr. West became chief of
the Investigations Division's National Security Section. He has
also served as regional task force coordinator for INS
Organized Crime Drug Enforcement Task Force programs, authored
articles, and taught law enforcement courses. In addition, he
has received the INS Commissioner's Award, as well as an award
from the Justice Department's Criminal Division.
Witnesses, if you would please stand in accordance with the
requirements of the Committee and raise your right hand to take
the oath.
[Witnesses sworn.]
Mr. Hostettler. Let the record reflect that the witnesses
answered in the affirmative.
And Ms. Swenson, you may begin your testimony.
TESTIMONY OF LILY SWENSON, DEPUTY ASSOCIATE ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE
Ms. Swenson. Mr. Chairman and Members of the Subcommittee,
thank you for the opportunity to testify at this important
hearing. On behalf of the Department of Justice, I want to
assure the Subcommittee that we take very seriously all of the
issues you have raised. In this post-9/11 world, we must
continue to protect our Nation's security while not losing
sight of our immigrant heritage or forsaking the rights of the
individual.
The issues you have raised touch upon these sometimes
competing interests and the Department remains committed to
striking the appropriate balance. I would like to discuss the
closure of immigration hearings to the public. In the days
following September 11, the Attorney General, through a
memorandum from Chief Immigration Judge Michael Creppy,
instructed immigration judges to close administrative hearings
in what turned out to be approximately 600 cases involving
aliens who might be connected with or have information about
terrorist activity in the United States.
The Creppy memorandum was applied for approximately 15
months and discontinued in December of 2002. Looking back at
the Department's decision to limit public access to these cases
following 9/11, we should be reminded of three things: First,
the hearings closed under the Creppy memorandum were not
secret. Although the executive branch could not disclose
information in those cases to the public, nothing prevented the
aliens or their counsel from doing so to friends, to family or,
for that matter, to the press. As it turned out, they
overwhelmingly didn't. We can only presume that they chose not
to for their own privacy or safety interests.
Second, closure affected only public access to special
interest cases. It did not affect an alien's due process
protections. Aliens were given a full and fair opportunity to
litigate their claims and to be represented by counsel. In
fact, about 75 percent of the 600-odd aliens in special
interest cases had their own lawyers.
Third, as I said earlier, the Department has not closed any
immigration proceeding pursuant to the Creppy memorandum for
over 2.5 years. Looking to the future, although the Department
has not done so since the Creppy memorandum, it is imperative
that it retain the ability to close a category of special
interest cases to the public if circumstances warrant. Should
we ever again face an attack of the type we did on September
11th, the Department may not be able to guard national security
interests if it must adjudicate a large number of individual
closure requests. Moreover, absent uniform closure instructions
like in the Creppy memorandum, immigration judges may decide to
disclose information in the individual cases before them which
terrorist groups can then piece together into a bigger picture
that can be used to thwart the Government's efforts. During a
time of national emergency, which is the only time the
Department has resorted to closing immigration hearings, such
scenarios would pose unacceptably high risks to national
security.
Next, let me address automatic stays. The automatic stay
regulation was originally promulgated because, as the Attorney
General determined, a bond decision by an immigration judge
that allows for immediate release is effectively final if, as
the appeal would necessarily assert, the alien turns out to be
a serious flight risk or a danger to the community. These
concerns are not merely theoretical. In the last 5 years, more
than 62,000 or 45 percent of aliens who were released from
custody during the pendency of their removal proceedings failed
to appear for the removal hearings. The emergency stay motion
procedures that existed prior to the automatic stay regulation
created a significant window of time wherein the alien may be
released while a bond appeal was being submitted to and
considered by the Board of Immigration Appeals in Falls Church,
Virginia. The automatic stay regulation addresses the anomaly
created by the old rules by preserving the status quo pending
appeal, but only in a certain class of relatively serious cases
and only for a reasonable duration. As such, although sparingly
used, only a few hundred times out of over 100,000 appealable
cases over 4 years, the automatic stay is an important public
safeguard against the unwarranted release of aliens that
otherwise would be determined by the Board to be a serious
flight risk or a danger to the community.
Finally, let me address briefly individualized bond
determinations. When a removable alien is apprehended, an
immigration officer decides whether he should be released on
bond. If the alien wishes to contest the officer's decision, he
can obtain an individual hearing before an immigration judge.
Although aliens have no right to bond at all and, by extension,
they have no right to individualized bond hearings, the
Attorney General has nonetheless to afford to most aliens
individualized hearings before an immigration judge. A decision
issued by the Attorney General in 2003 called the Matter of D-J
directed immigration judges to consider in addition to
dangerousness and flight risk, factors relating to national
security and immigration policy in making individual bond
determinations. The rule established in the Matter of D-J is
sound as a matter of policy and of law, and it should not be
legislatively undone.
Mr. Chairman, thank you for the opportunity to testify
before the Subcommittee. I look forward to answering any
questions you may have.
[The prepared statement of Ms. Swenson follows:]
Prepared Statement of Lily Fu Swenson
Mr. Hostettler. Thank you, Ms. Swenson.
Mr. Greene.
TESTIMONY OF JOSEPH GREENE, DIRECTOR OF TRAINING AND
DEVELOPMENT, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Greene. Thank you, Chairman Hostettler and
distinguished Members of the Subcommittee, and I thank you for
this opportunity to discuss certain immigration enforcement
procedures implemented after the September 11 attacks.
As you know, after those attacks, our Government enacted a
number of immigration enforcement policies in an effort to
provide greater security to our Nation and our public. These
efforts included investigating those responsible for the attack
and trying to deter and disrupt the ability of others to carry
out further attacks upon the people of this country. The
Department of Homeland Security supports the current regulatory
system that governs the closure of immigration hearings. In
particular, DHS believes regulations granting immigration
judges the authority to issue protective orders and to accept
documents under seal strike an appropriate balance in
individual cases. These regulations ensure that sensitive law
enforcement information can be protected while allowing alien
respondents and immigration judges to review Government
evidence.
Before 9/11, immigration officers had to determine whether
to maintain custody or release an alien or whether to issue a
notice to appear within 24 hours. On September 17, 2001, INS
issued an interim rule amending that, providing immigration
officers more time to make determinations regarding the
processing and custody of aliens arrested on immigration
charges. Under this interim rule, immigration officers now have
48 hours to make the determination whether to detain or release
the alien and to determine whether to issue a notice of
appearance charging an alien with grounds for removability. The
rule also provides that under extraordinary circumstances, the
immigration officer may have reasonable time beyond the 48-hour
period to make a determination regarding custody.
DHS has implemented procedures to ensure aliens in
detention receive prompt notice of the charges against them. On
March 30, 2004, the then Under Secretary of Border
Transportation and Security Asa Hutchinson issued guidance to
DHS immigration enforcement officers on the requirements of
those regulations. This memorandum also provided guidance
regarding exceptions to the 48-hour rule, including what events
constitute an emergency or other extraordinary circumstances
that might justify a delay in charging an alien beyond the 48-
hour period. In addition, ICE detention policies and guidelines
provide further assurance that aliens arrested on immigration
charges receive all of the protections under law to which they
are entitled.
In July, 2003, ICE issued a detention standard requiring
immigration officials in the field to monitor detention
conditions and address any detainee concerns that might arise.
The U.S. Government has a policy in place requiring the
detention of virtually all seagoing migrants found in or
arriving in the United States. This policy was adopted to deter
aliens from illegally attempting to reach the United States by
sea. Such attempts are often dangerous both to the aliens and
to U.S. Law enforcement officials and divert limited
enforcement resources from counterterrorism and homeland
security responsibilities. The basis for this policy was
affirmed in the decision in the Matter of D-J on April 17,
2003, in which the Attorney General vacated the Board of
Immigration Appeals' decision granting release on bond to a
Haitian alien who attempted to enter the United States on a
vessel carrying 216 undocumented aliens. In his decision, the
Attorney General instructed the BIA and immigration judges that
it was appropriate to consider national security interests in
bond proceedings involving undocumented aliens present in the
United States who are arrested and detained pending a decision
on their removal. The underlying concern for releasing seagoing
migrants, such as in the Matter of D-J, is that the release
could encourage a surge of illegal mass migration by sea.
Discouraging such unlawful and dangerous migration is
consistent with sound immigration policy and the national
security interests of this country.
In 2001, the Department of Justice issued an interim
regulation providing that in cases where the district director
had determined that the alien should not be released or had a
bond set of $10,000 or more, any order of the immigration judge
ordering the release shall be stayed upon ICE's filing of the
form with the executive office of immigration review. The
interests served by allowing ICE to obtain an automatic stay in
these cases is considerable. A custody decision that allows for
immediate release is effectively final if the alien turns out
to be a serious flight risk or a danger in the community. This
automatic stay provides a safeguard to the public, briefly
preserving the status quo while ICE seeks expedited appellate
review of the immigration judge's custody decision.
In conclusion, procedural changes implemented in the wake
of the 9/11 attacks were reasonable measures intended to
provide greater security to our Nation and the public. DHS has
reviewed these policies in consultation with appropriate
entities, such as the Inspector General, the DHS Office of
Civil Rights and Civil Liberties, and nongovernment
organizations. The policies and procedures provide the
appropriate balance between ensuring our Nation's security and
providing individual rights.
Mr. Chairman and Members of the Subcommittee, thank you for
the opportunity to testify today, and I look forward to your
questions.
[The prepared statement of Mr. Greene follows:]
Prepared Statement of Joseph R. Greene
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to speak with you today about certain immigration
enforcement procedures implemented in the aftermath of the September
11th attacks.
After the devastating terrorist attacks upon the United States in
September 11, 2001 that killed 3,000 people, the Government enacted a
number of immigration enforcement policies in an effort to provide
greater security to our nation and the public. Those efforts included
investigating those responsible for the horrific events of 9/11, and
trying to deter and disrupt the ability of others to carry out any
additional attacks upon the people of this country. The immigration
policies adopted after the September 11th attacks were directed towards
these goals, which I am happy to discuss with you today.
IMMIGRATION HEARING CLOSURES
DHS supports the current regulatory scheme that governs the closure
of immigration hearings. In particular, the Department of Homeland
Security believes that the regulations issued by the Department of
Justice on May 21, 2002, granting immigration judges the authority to
issue protective orders and to accept documents under seal, strike an
appropriate balance in individual cases, ensuring that sensitive law
enforcement information can be protected while allowing alien
respondents and immigration judges to review the evidence relied upon
by the Government. Modeled after the Federal Rules of Civil Procedure,
this tool allows DHS to introduce sensitive law enforcement information
into immigration hearings. The procedures allow the alien to fully and
fairly litigate the facts presented through this process. This is a
valuable tool that DHS fully supports.
48-HOUR RULE
Before September 11, 2001, regulations required that an immigration
officer make a determination regarding whether to maintain custody or
release an alien and whether a notice to appear would be issued within
24 hours of the alien's arrest. That regulation did not set forth
specific time requirements for serving the alien or the immigration
court with a notice to appear.
On September 17, 2001, the INS issued an interim rule amending
287.3(d) to provide immigration officers more time to make
determinations regarding the processing and custody of aliens arrested
on administrative immigration charges. Under that interim rule,
immigration officers now have 48 hours to make a determination whether
to detain or release an alien and to determine whether to issue a
notice to appear charging the alien with removability. The interim rule
also provides a narrow exception to the 48-hour requirement. The rule
provides that under exigent circumstances, an immigration officer may
have an additional reasonable time beyond the 48-hour time period to
make a determination regarding custody and whether to issue a notice to
appear.
DHS has implemented procedures to ensure aliens in detention
receive prompt notice of the charges against them. On March 30, 2004,
Under Secretary of Border and Transportation Security (BTS), Asa
Hutchinson, issued guidance to all DHS immigration enforcement officers
on the requirements of the regulations. In cases that present no
emergency or other extraordinary circumstances the following procedure
will be followed:
1. All custody determinations and charging decisions must be
made in 48 hours of an alien's arrest.
2. The initial custody determination, and the date and time of
that determination, will be documented on a Notice of Custody
Determination (Form I-286).
3. The officer will also note on the custody determination
form the charge or charges of removal reasonably believed to be
applicable to the alien. The officer will also cite to the
provisions of the Immigration and Nationality Act under which
the charges are based.
4. A completed custody determination form will be served on
the alien within 48 hours of his or her arrest, and the time
and date of service is to be noted on the form as well. If for
any reason the form is not served within 48 hours, the officer
is required to annotate the form with the reasons that
prevented service of the custody determination within the 48
hours after the alien's arrest.
5. A copy of the complete custody determination must be placed
in the alien's permanent alien registration file.
The March 30, 2004 memo provides guidance on 8 C.F.R.
Sec. 87.3(d)'s exception to the 48-hour rule when emergency or
extraordinary circumstances are presented. The memo also provides
guidance on what events constitute an emergency or other extraordinary
circumstance under 8 C.F.R. 287.3(d) that might justify a delay in
charging an alien beyond the 48 hour period.
Any determination of the existence of emergency or extraordinary
circumstances must be made by a Special Agent in Charge (SAC), a Border
Patrol Chief, a Field Officer Director for Detention and Removal, or an
equivalent position. The official who makes that decision is required
to document that decision and forward a copy of that decision to
Headquarters.
ICE detention policies and guidelines provide further substantial
additional protections to ensure that aliens arrested on administrative
immigration charges receive all the protections under the law to which
they are entitled. All immigration detainees are provided with lists of
local legal services providers, and are given appropriate telephone
access with which to consult with and retain legal representation. DHS
also has issued guidance to ensure that we adhere to our obligations
under the Vienna Convention on Consular Relations with respect to the
rights of detainees to contact their consular officials or
representatives. Additionally, ICE issued a detention standard in July
2003 that requires that DHS immigration officials in the field visit
persons who are detained in DHS facilities to monitor detention
conditions and address any detainee concerns that may arise.
OPERATION LIBERTY SHIELD
On March 17, 2003, coinciding with the U.S. deployment of our
ground troops in the Iraqi combat zone, the U.S. Government launched
Operation Liberty Shield to increase security and readiness in the
United States. This nationwide operational plan was designed to protect
U.S. citizens, infrastructure, and deter those who plan further
terrorist attacks. Liberty Shield integrated selected national
protective measures with the involvement of a wide range of Federal,
State, local and private assets. The primary objectives of Operation
Liberty shield included: (1) increased security at borders; (2)
stronger transportation protection; (3) ongoing measures to disrupt
threats against our nation; (4) greater protection for critical
infrastructure and key assets; and (5) increased public health
preparedness.
Additionally, these increased security measures at our borders
resulted in a shift in detention policy. During this brief one-month
period, asylum applicants arriving at ports of entry from nations where
al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known
to operate, were subject to detention during the processing of their
asylum claims. On April 17, 2003, Operation Liberty Shield concluded.
At that time, all persons detained under this temporary rule, a limited
number, had their cases reviewed on an individual, case-by-case basis.
MATTER OF D-J-
As explained in a Federal Register Notice issued on November 11,
2002, the U.S. Government has a policy in place requiring the detention
of virtually all seagoing migrants found in or arriving in the United
States. This policy was adopted to deter aliens from illegally
attempting to reach the U.S. by sea. Such attempts are often dangerous
for the aliens and U.S. law enforcement and divert limited law
enforcement resources from counter-terrorism and homeland security
responsibilities.
The basis for that policy was affirmed by a decision on April 17,
2003, in which the Attorney General vacated the Board of Immigration
Appeals' (BIA's) decision granting release on bond to a Haitian alien
who attempted to enter the United States on a vessel carrying 216
undocumented aliens. In the resulting decision, Matter of D-J-, 23 I&N
Dec. 572 (AG. 2003), the Attorney General instructed the BIA and
Immigration Judges that it was appropriate to consider these national
security interests in bond proceedings involving undocumented aliens
present in the United States who are arrested and detained pending a
decision on their removal.
The decision stated that section 236(a) of the Immigration and
Nationality Act (INA) and the accompanying regulations do not confer a
right to an alien to be released on bond, and that the INA does not
limit the discretionary factors that may be considered by the Attorney
General (or the Secretary of Homeland Security) in determining whether
to detain an alien during the pendency of removal proceedings. Based on
this conclusion, the Attorney General decided it was within his
discretion not to release this ``undocumented seagoing migrant'' due to
national security concerns and immigration policy interests.
An underlying concern with releasing seagoing migrants such as in
Matter of D-J- is that the release could encourage a surge of illegal
mass migration by sea or at land borders. The effect would be a strain
on the Department's border security resources.
Attempts to reach the U.S. shores by seagoing migrants also imperil
the lives of aliens, as many border crossings are attempted in unsafe
conditions or are undertaken via smuggling rings, leaving aliens,
particularly women and children, vulnerable to victimization.
Discouraging such unlawful and dangerous migration is consistent with
sound immigration policy and the national security interests of our
country.
STAY OF RELEASE ORDERS
In 2001, the Department of Justice issued an interim regulation
that modified 8 C.F.R. 3.19(i)(2). The current automatic stay
regulations provide that in cases where the district director has
determined that the alien should not be released, or has set bond of
$10,000 or more, any order of the immigration judge ordering release
shall be stayed upon the INS's (now ICE's) filing of a Form EOIR-43
with the immigration court within one business day of the issuance of
the immigration judge's order, and the immigration judge's order shall
remain in abeyance pending decision of the appeal by the Board. The
stay lapses if ICE fails to file a notice of appeal with the Board
within ten business days of the issuance of the order of the
immigration judge. In addition, if the Board orders the alien's
release, the Board's order shall be automatically stayed for five
business days, and if the case is certified to the Attorney General,
the Board's order shall continue to be stayed pending the decision of
the Attorney General.
The interests served by allowing ICE to obtain an automatic stay
are considerable. A custody decision that allows for immediate release
is effectively final if, as the ICE appeal would necessarily assert,
the alien turns out to be a serious flight risk or a danger to the
community. Historically, 30 percent of aliens released or paroled have
failed to appear for subsequent immigration court hearings.
Historically, this number becomes much greater, approximately 85%, once
an alien is ordered removed. In such cases, the appeal provides little
benefit to the agencies exerting efforts to effect removal, and less
still to the community receiving the dangerous or absconding alien. The
automatic stay provides a safeguard to the public, briefly preserving
the status quo while ICE seeks expedited appellate review of the
immigration judge's custody decision. The BIA retains full authority to
accept or reject ICE's contentions on appeal.
Additionally, the ICE Office of the Principal Legal Advisor had
created internal safeguards to ensure that automatic stays are filed in
appropriate cases.
CONCLUSION
The procedural changes implemented in the wake of the 9/11 attacks
that I have discussed today were reasonable measures intended to
provide greater security to our nation and the public. DHS has reviewed
these policies working with the appropriate entities such as the
Inspector General, the DHS Office for Civil Rights and Civil Liberties,
and consulting with Non-Governmental Organizations, and has developed
policies and procedures to ensure that they provide the appropriate
balance between ensuring our nation's security and protecting
individual rights.
Thank you for the opportunity to testify today on this issue and I
look forward to answering any questions you may have.
Mr. Hostettler. Thank you, Mr. Greene.
Mr. Rosenzweig.
TESTIMONY OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW,
CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION
Mr. Rosenzweig. Mr. Chairman and Representative Jackson
Lee, thank you very much for inviting me to testify.
As Congressman Berman noted, it isn't very often that a
member of the Heritage Foundation is invited to come at the
behest of a Democratic Member of this body, and I thought I
would take the time to explain why.
And in doing so, I would like to associate myself with a
large portion of the remarks you made, Mr. Lungren.
I don't think it is to come here and criticize past
practices that were taken in the heat of the post-9/11 era, but
to see if we can learn from them and identify now in a term of
relative calm rather than crisis what the optimal set of rules
will be for the next situation. And I believe we can learn
something from that history.
I start by believing that, pretty much, the rules that we
are discussing are not matters of constitutional requirement.
Immigration law is within the plenary disposition of this body,
and you can set the procedures that you want to. The question
then is, what are the right procedures, and why do we care? For
some, we care, because of the immigrants and the heartfelt
problems that are affecting them that drive them to come to our
shores. For others, it is the American values of transparency
and due process that we hold dear and wish to see within our
Government. For me, actually, it is a different thing all
together. It is because I want to empower the Government to do
as much as is humanly possible to combat both illegal
immigration and terrorism. And I think the more transparency
there is, the more comfortable we can be giving the enhanced
authority to the immigration and customs enforcement officials
to do their job. But that transparency, that oversight, that
kind of notice and process is at the core of how we ensure that
the powers that we give are not abused, are not misused.
I yield to nobody in my admiration for members of the
Department of Justice and Immigration. I am willing to
stipulate from the get-go that mistakes that are made are made
through legitimate concern for American security. But they are
fallible human beings just as we all are. And so the right
process is to put in place ideas about how we can monitor what
is being done and correct them when there are errors. The
proposals that are before you, it seems to me, address those in
a fair and reasonable way.
Section 101 of the CLRA calls for a presumption of
openness. Doesn't call for mandatory openness of all
immigration proceedings, rather it calls for them to be open
but subject to closure upon demonstration of national security,
a risk to the asylum seeker--you could maybe think of some
others to add--compelling governmental interests, like the
safety of individuals or risk of flight or destruction of
evidence. But it seems to me that the presumption of openness
is the right place to start. And the only argument I have heard
against that is that there is an administrative burden to being
obliged to make a closure argument on a case-by-case basis. And
I am willing to agree that that is an administrative burden
that will at times prove difficult. And if we begin with the
presumption of openness, there may even be some errors at the
end. But at the core, we have to start from the idea that in
order for Congress and the public to conduct their oversight of
immigration proceedings, we should begin with the idea that
there should be no universal or blanket closure that applies to
a class of cases and work backwards from there.
The same can be said, I think, of, for example, section 202
of the CLRA proposal which is the one that goes to whether or
not there should be individualized bond determinations. Again,
I am perfectly willing to agree that there may be
nonindividualized concerns that will impact each individual's
determinations, concerns such as those that Mr. Greene advanced
about governmental resources and the desire to deter, but that
shouldn't blind us to the need or the desire, I should say, to
give each individual immigrant his own time in court, his own
opportunity to be heard. Now his individual considerations may
in the end be deemed pale next to some of these national
security concerns, and if that is the decision of the
immigration judge, so be it. But to adopt a rule that allows
for a blanket set of determinations based on group
characteristics, it seems to me contrary to our general
adherence to ideas of individuated justice.
I see my time has expired. And I would be happy to answer
questions. With that, I thank you.
[The prepared statement of Mr. Rosenzweig follows:]
Prepared Statement of Paul Rosenzweig
Mr. Hostettler. I think the gentleman's time has expired.
And he will have questions asked of him.
But the Chair recognizes Mr. West for 5 minutes.
TESTIMONY OF WILLIAM WEST, RETIRED SUPERVISORY SPECIAL AGENT,
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION
SERVICE, U.S. DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND
CUSTOMS ENFORCEMENT
Mr. West. Thank you. I would like to thank the Chairman and
the Members and staff for the opportunity to present testimony
today.
As we know, the issue of immigration law enforcement and
how it relates to counterterrorism matters has been a topic of
intense studies since the 9/11 attacks. Indeed, the 9/11
commission issued a separate staff report on the topic and
clearly found that, before 9/11, the U.S. Government was
significantly ill prepared from the perspective of utilizing
its immigration law enforcement resources and counterterrorism
matters.
Fortunately, there have been some improvements since 9/11
with the creation of DHS, but more needs to be done. Several
topics of discussion for this hearing relate to immigration
removal proceedings, and I have discussed them at length in my
written statement submitted for the record. Given the time
considerations, I will touch on them briefly here and gladly
answer any questions from the panel.
Number one, on hearing closure, this issue relating to
Government trial attorneys requesting that removal hearings
against aliens be closed to the public, this practice is not
new to the post-9/11 era but was employed more often since then
because the number of cases involving sensitive information
being heard in immigration courts has increased substantially.
It should be noted, such proceedings are still adversarial
in nature, and the alien respondents are still entitled to
their full due process rights under the law in those closed
hearings, including having legal representation.
Mr. West. Secondly, the 48-hour rule. This relates to the
time period allowed when an alien is initially detained and
when the alien is served notice of formal immigration removal
charges.
Before 9/11, the INS operated under a general 24-hour rule.
After 9/11, the complexities of conducting additional
intelligence agency background checks added to what is already
the convoluted and time-consuming process of determining an
alien's status and physically processing a detained alien. The
48-hour time period is not unreasonable under the circumstances
once those circumstances are fully understood.
The blanket detention policy under Operation Liberty
Shield, applies to asylum seekers entering the U.S. from known
terrorist-producing countries. Given the historic widespread
fraud and abuse in the U.S. political asylum system, combined
with what is even today a relatively easy capability of
deceiving that system, especially by people who come from the
very countries where those terrorist organizations flourish and
it is therefore often very difficult to verify those asylum
claims from those claimants, the detention policy for those
countries is sound.
That said, the policy is still not really a blanket policy,
and the DHS and the State Department are fully allowed, on a
case-by-case basis, to authorize the release of those claimants
when they are deemed releasable.
Finally, the ICE trial attorney authority to stay
immigration judge release orders. This authority existed well
before 9/11, dating back to 1998, and was employed in certain
high-profile criminal alien cases and very limited national
security deportation cases before 9/11. After the 9/11 attacks,
when the number of removal cases involving sensitive
information and evidence not releasable in immigration court
increased significantly, the use of that process also
increased.
Such action still requires trial attorneys to obtain
headquarters general counsel level approval beforehand so there
is senior level review of the case before that authority is
actually invoked, and there is also appellate review conducted
at the Board of Immigration Appeals.
In summary, all these issues should remind us that removal
or deportation proceedings are not criminal judicial
proceedings but administrative proceedings conducted within the
realm of the Executive Branch of the U.S. Government, as
sanctioned by Congress and the Federal courts. They are
different, and different for a reason.
An alien respondent found guilty of a deportation
violation, unlike a criminal defendant, is not punished by
being sent to prison but is, instead, simply required to go
home, much as a homeowner tells an unwelcome guest who has
violated the privilege to stay in his house to leave. We should
not forget the distinct differences or the reasons for those
differences between those two systems.
Thank you, and I will be glad to answer any questions.
Mr. Hostettler. Thank you, Mr. West.
[The prepared statement of Mr. West follows:]
Prepared Statement of William D. West
I wish to thank the Chairman, the panel members and the staff of
the Subcommittee for the invitation to appear today and the opportunity
to offer this testimony. As the Nation has moved onward from the
terrorist attacks of September 11, 2001, the significant nexus between
our national security and issues related to the enforcement of our
immigration and nationality laws has become increasingly apparent.
The National Commission on Terrorist Attacks Upon the United
States, the 9/11 Commission, devoted considerable research to the topic
of immigration issues connected to the 9/11 attacks. In fact, there was
a separate staff report titled 9/11 and Terrorist Travel detailing the
background and history of those immigration issues. As that report
clearly indicated, the US Government was ill prepared for dealing with
national security threats from an immigration enforcement perspective
before the 9/11 attacks.
A handful of us who were in the immigration law enforcement
profession during that period and who also happened to be among the
very few involved in counter-terrorism efforts knew very well how ill
prepared we really were. Even fewer of us, including me, tried to sound
the alarm years before; but those efforts always fell on deaf ears.
Those in senior management positions of the Immigration and
Naturalization Service (INS) and the Department of Justice (DOJ) at the
time who could have implemented meaningful changes in that area simply
had no understanding of the issues or genuinely believed immigration
law enforcement had no significant role to play in counter-terrorism
and other national security matters, notwithstanding the fact that
specific immigration and nationality laws dealt directly with such
issues and foreign nationals (aliens), who violated a variety of other
immigration laws, were often the primary suspects in such cases.
Even the first attack against the World Trade Center in 1993 and
the related plot to destroy New York tunnels, a Federal building and
other landmarks, all of which involved conspirators who were aliens
that also violated US immigration and nationality law, failed to awaken
the senior levels of the US Government to the realization that
immigration law enforcement should have been an integral part of the
country's counter-terrorism efforts. Those efforts only evolved very
slowly and at the local field office level, with a slight and
begrudging Headquarters level acknowledgement by the late 1990s. It
really was much too little much too late by 9/11.
The situation did change after the 9/11 attacks, at least from the
immediate perspective of the INS making manpower available to the FBI
and other agencies to assist in counter-terrorism investigations in the
months following the attacks. Ironically, the INS found itself being
limited in being able to assign Special Agents to work such matters
because many of its Special Agents did not have the requisite security
clearances. Unbelievably, INS often did not require some of its Special
Agents to have any security clearance.
With the creation of the Department of Homeland Security (DHS), and
the abolition of the INS and the formation of the Bureau of Immigration
and Customs Enforcement (ICE) as the interior immigration enforcement/
investigative arm of DHS, the assignment of ICE agents to work counter-
terrorism cases became part of the new homeland security mandate within
DHS. Those efforts were, and are, limited by the other investigative
missions of ICE (and there are many) and the number of Special Agents
within the agency (approximately 5500).
Within ICE, only about 2000 Special Agents were ``legacy'' INS
Special Agents who had the full background and training in immigration
and nationality law and experience conducting investigations therein.
While ICE has supposedly conducted cross-training for all its agents
(legacy Customs and INS), that cross-training appears to have consisted
of at most two weeks of in-service training, often conducted in field
offices, and sometimes it amounted to less. The rest of the cross-
training was essentially on the job.
After the 9/11 attacks, the Government implemented several changes
within certain immigration benefit and removal proceedings. Those
changes are the primary topic of this hearing and I would like to
discuss each below. Please note that I offer this testimony from the
perspective of twenty-nine years of Federal law enforcement experience,
twenty-five of which directly investigating and enforcing US
Immigration and Nationality laws as a Special Agent and Supervisory
Special Agent with the Investigations Division of the INS and
ultimately, before my retirement the end of April 2003, with ICE under
DHS. From the early 1990s, I became involved in counter-terrorism and
other national security cases, and eventually became the Chief of a
unique and specific National Security Section within the INS
Investigations Division in south Florida devoted to such cases. I have
direct, real world experience investigating foreign nationals who were
involved in terrorism, espionage, human rights persecution and modern-
day war crimes and other national security threats to the United
States, targeting those suspects for immigration and nationality law
violations within a multi-agency task force arena. This is not
academic, think-tank theoretical experience but in-the-field, on-the-
street working experience over many years and I hope that provides the
panel with a special perspective on these matters.
Hearing Closure: This process allows the Government to close
removal (deportation) hearings before an Immigration Judge (the
Immigration Court) to the public upon a motion that having the hearing
remain open/public would potentially jeopardize national security or
other ongoing sensitive investigative issues.
Shortly after the 9/11 attacks, FBI and INS agents nationwide were
flooded with leads related to that investigation, as well as off-shoot
investigations involving other potential terror threats. As those leads
were processed, and it was fully understood that no potential lead or
suspect that might in any way be linked to the attacks or another such
threat could be overlooked, the vast majority of the subjects of those
leads were identified as aliens and many of those aliens were
determined to be in violation of some provision of the Immigration and
Nationality Act.
Those early case leads, wherein the subjects were quickly
determined to be illegal aliens, resulted in the alien subjects being
arrested and detained on entirely legitimate immigration law
violations. Those were violations, however, that under normal
circumstances might have resulted in the alien being released on their
own recognizance or on a small bond. In the weeks and months following
9/11, in following up leads related to the 9/11 investigation, those
were anything but ``normal'' circumstances.
The Government was faced with the dilemma of aggressively
investigating these leads, identifying potential suspects during the
process of investigating those leads, and then having a viable legal
charge against those suspects that allowed for their arrest and
detention. How to process the follow up legal proceedings without
jeopardizing the larger and potentially more important counter-
terrorism lead information while still maintaining legal control and
custody over the suspect became the issue. Hearing closure was the
answer.
It should be noted that closing the hearing still allowed the
detained alien his/her adversarial due process rights in Immigration
Court. The alien was still allowed legal representation. The hearing
itself was simply not open to the public. The use of Immigration Court
protective orders was implemented to facilitate the non-release of
hearing information outside the courtroom in such cases.
As the Government has expanded its counter-terrorism investigative
efforts beyond the 9/11 attacks over the past several years, with the
augmentation of assigned ICE agents and Title-8 authorization to FBI
agents (the FBI received immigration enforcement authority just before
the creation of DHS in 2003), cases with the same scenario continued to
present themselves.
The concept is essentially a blend of ``quasi-FISA'' with
Immigration Court proceedings, ruling in favor of not publicly
releasing sensitive information about a case generally in order to
protect an ongoing investigation. The need to continue to have this
flexibility is evident by the fact that such cases continue to be
developed within the multi-agency counter-terrorism task force
approach. It should be reiterated, the adversarial nature and legal
representation status for the alien respondent is not changed in these
closed proceedings; it is only that such proceedings are closed to the
public.
48 Hour Notification Rule: Before the 9/11 attacks, there existed a
semi-formal but generally adhered-to ``24 hour'' rule wherein an alien
detained in deportation matters was served with a charging document . .
. the old Order to Show Cause which was later replaced by the Notice to
Appear which is currently in use. Little understood by the general
public, nor even by the law enforcement community outside those within
what was INS and now ICE, is the fact that physically processing an
alien arrested on removal charges, even something as ``simple'' as
overstaying a nonimmigrant visitor status, can quite literally be more
time consuming and paper-complex than the processing for many felony
criminal arrests.
How can that be? The issue of actually determining if an alien is
in violation of the Immigration and Nationality Act is often not clear,
easy nor fast. It is a legal requirement for all aliens within the
United States to carry with them at all times evidence of their alien
registration, assuming they have such evidence, and if they do not it
is technically a misdemeanor criminal offense under 8 USC 1304(e).
Needless to say, violation of this provision of law is rampant, and
prosecution for this is extremely rare. However, once an alien is
determined to be an alien by an ICE agent, the alien's status must then
be determined and it is incumbent on the alien to prove he/she is
lawfully within the United States (8 USC 1361).
If the alien does not possess any registration documents, as
required by Federal law, at the time of the encounter, the alien may be
detained until their status is determined. Even if the alien presents a
document purporting to be evidence of alien registration, with a few
short questions being improperly answered about how the status was
obtained, and if the document appears altered, (there is an abundance
of fraudulent immigration documents ``out there'') it is entirely
likely the investigating agents will pursue further inquiry.
That further inquiry means conducting additional in-depth
questioning, either in the field or in the immigration office and
conducting further record checks, either via radio or cell phone from
the field or in the office. Those record checks are conducted on
immigration computer systems that are notoriously inaccurate, lacking
updated information and contain many subsystems that do not interface
with each other, thereby requiring multiple redundant checks.
Frequently, a physical review and analysis of a hard copy paper case
file, or the scanned equivalent, is necessary for a final status
determination, a case file that often is located in another field
office or stored in a central records repository. And all this is just
the preliminary workup to determine if an alien may or may not be prima
facie lawfully or unlawfully in the US.
That preliminary status process alone can often take hours, even
though determining a person is an alien usually is done in a matter of
moments. Surely, there are times when an unlawful alien who has
surreptitiously crossed the border and has no alien registration
documents immediately admits to all that when encountered and is
quickly taken into custody. Even in those cases, the full battery of
record checks through the convoluted computer systems must still be
conducted, to include the standard criminal record checks via the NCIC
system.
Once an alien is determined to be in violation of the law and
subject to a removal charge, there is a formal processing procedure
that must take place before a Notice to Appear, the charging document
is issued. In fact, there are usually somewhere on the order of a dozen
different forms that must be completed and executed in even the
simplest removal cases. The more complex the case, the more forms there
are to complete. The process of actually determining a violation and
then processing a charging file routinely can take many hours,
sometimes the better part of a work day, depending on the complexity of
the case, for one alien.
Then there is the matter of when and where the alien may have been
initially arrested and detained. If it is late in the day, and the NTA
processing might not be expected to be completed until the following
day, the alien might be temporarily detained at an immigration
detention center or local jail overnight, to be retrieved the next day
for completion of processing. This often occurs because an official who
is lawfully authorized to actually review and sign a Notice to Appear
may not be available until the next day.
These were all standard reasons why, pre-9/11, the ``24 hour'' rule
was in effect and generally worked. After 9/11, things very quickly
changed when INS agents, working closely with the FBI, began arresting
and detaining aliens identified in suspected terrorism related
inquiries. In addition to the usual standard convoluted obstacles INS
(and later ICE) agents faced in these matters, the very real potential
issues of national security were thrown into the mix.
Very quickly, very many of the aliens encountered in these law
enforcement endeavors also had to be queried through a battery of
national security databases. Those efforts took an additional period of
time, and the gravity of the potential results was even more important.
That is what led to the creation of the ``48 hour'' rule. It was simply
a recognition that in certain enforcement situations, field
investigative personnel needed additional time to not only fully
determine who they were dealing with but, under an institutional
structure that, even with the transition to DHS where some improvements
have been made, arresting, detaining and processing an alien in removal
proceedings can still be a time-consuming and labor-intensive affair.
To remove or shorten this rule without also creating a
significantly improved and streamlined infrastructure system under
which field immigration law enforcement personnel can work would be
asking those law enforcement officers, in those limited circumstances
where the rule is required, to do a nearly impossible task.
Blanket detention under Operation Liberty Shield: In March 2003,
the White House announced Operation Liberty Shield, which essentially
was a series of security and law enforcement enhancements by the
Federal Government in its ongoing international counter-terrorism
efforts. Among those enhancements was a change in detention policies
relative to asylum seekers from certain specified countries, namely,
countries ``where al-Qaeda, al-Qaeda sympathizers, and other terrorist
groups are known to have operated.'' The policy required those asylum
seekers to be detained for the duration of their processing period, so
the Government could ``determine the validity of their claim.'' The
announcement specifically cited that DHS and the State Department would
coordinate exceptions to the detention policy.
This ``blanket'' detention policy for asylum seekers has come under
criticism from a number of sources. The general premise for such
criticism is that asylum seekers are the very people least deserving of
detention, they are people fleeing repressive regimes and conditions
and are seeking freedom and detaining them while their asylum cases are
heard is draconian.
On the surface, such criticism might seem to have certain merit.
However, such criticism simply appeals to surface emotions and ignores
the historic reality of widespread abuse of the liberal political
asylum system within the United States. Interestingly, that widespread
abuse really began with what could also be described as the beginning
of America's conflict with radical Islam, the seizure of the US Embassy
in Tehran in 1979 by radical Iranian ``students'' supported by the
Iranian government and the taking of American hostages who were held in
captivity in Tehran for more than a year.
One of the domestic responses by the Carter Administration to that
event was a so-called ``crackdown'' on illegal Iranian students and
other nonimmigrants in the United States. Within INS, that operation
was dubbed the ``067 Project.'' To no one's surprise, INS found it had
no idea how many Iranian students were in the US. Over about a year,
INS agents were tasked with identifying, locating and determining the
immigration status of as many Iranian students and other nonimmigrants
as possible. The project identified somewhere on the order of over
30,000 such Iranian students and other nonimmigrants, a very large
number of whom were determined to have violated their immigration
status in some way or another. Those violators were arrested and
charged.
Of those Iranian students who were placed under deportation
proceedings under the 067 Project, most were intelligent, savvy young
men of some means. Many also turned out to be angry young radical
Islamic fanatics, although Federal law enforcement wasn't quite sure
what that meant at the time. What did happen, however, is most were
released on bond and hired immigration attorneys. Most wanted to remain
in the United States. A few began filing for political asylum and that
opened the asylum floodgates . . . the few became very many and the
system became overwhelmed.
From the 067 Project, of the thousands of illegal Iranians who were
placed under deportation proceedings, only a handful were actually
deported and a very large number were granted political asylum. How
many of those asylum requests were legitimate is anyone's guess, since
the process and system was, as I noted, basically overwhelmed by the
numbers at the time and the ability to investigate the claims of such
Iranians was virtually impossible, so they were essentially taken at
face value. This set the sad asylum system ``standard'' for years to
come, until the system saw some degree of reform in the 1990s. Fraud
and abuse within the system have been rampant for years, and were the
impetus for the eventual reforms that were put into place but which
have only somewhat improved matters.
Even with some modicum of reform, the asylum process continues to
be abused. While State Department country condition reports,
Intelligence Community assessments and NGO reports provide Asylum
Officers and Immigration Judges a better perspective on potential case
backgrounds in the generic sense, very often, specific issues
surrounding individual cases come down to the credibility of the alien
claimants themselves. This means an Asylum Officer or an Immigration
Judge must decide if the alien claimant is telling the truth or lying.
It often really is that simple, and that easy for a claimant to lie and
beat the system. They only need a believable story that cannot
otherwise be readily disproven, and sound credible to the official to
whom they are telling the story.
Within that context, within the larger framework of the ongoing war
on terror, wherein alien asylum claimants from known terror producing
countries appear and the training doctrine of al-Qaeda and other
terrorist organizations teach their operatives to seek asylum in the
West and, especially in those cases where the issue truly boils down to
the credibility alone of the claimant, combined with a system that has
a history of widespread fraud and abuse on the part of claimants,
maintaining the detention policy under Operation Liberty Shield makes
perfect sense.
Finally, it should be pointed out the policy fully allows for
exceptions to the detention policy. DHS and the State Department are
allowed, on a case-by-case basis, to consider and release asylum
claimants when such release is deemed appropriate. For this reason, the
policy really is not a ``blanket'' detention policy after all, but
simply one of reasoned posture in favor of security.
Trial Attorney authority to stay Immigration Judge release orders:
In certain removal cases, wherein an Immigration Judge orders the
release of an alien respondent and the Government Trial Attorney (now
DHS/ICE Counsel) disagrees with the condition of release, the
Government Trial Attorney can invoke a legal stay of the Immigration
Judge release order while the Government appeals the order to the Board
of Immigration Appeals. Since 9/11, the invocation of this process has
increased, primarily in detention cases involving aliens suspected of
linkage to terrorism or other national security threat matters.
It should be noted this authority by Government Trial Attorneys is
not something new under the USA Patriot Act or some new policy
implemented after the 9/11 attacks. The authority existed well before
9/11, since the 1990s, and has been utilized selectively in serious
criminal alien and a handful of national security deportation cases.
The process has not come into serious public scrutiny, however, since
after the 9/11 attacks when it's usage became more widespread in
removal proceedings. This is simply a matter of more such cases related
to potential security threat issues being presented in the Immigration
Courts.
An ICE Trial Attorney must seek and receive ICE Headquarters
General Counsel Office approval before invoking the stay authority;
therefore, there is a senior level legal review of the case issues
before the authority is implemented in any given case. Further, the
invocation is generally employed when the Government possesses
additional background information against the alien respondent which it
prefers not to release in the Immigration Court proceedings, but
believes the evidence already presented would suffice upon appeal to
the BIA and the alien's release would be detrimental to the security of
the community or pose a notable flight risk.
An important issue to be remembered in this is that while the
Immigration Judges and even the Board of Immigration Appeals are quasi-
independent semi-judicial entities, they are, in fact, officials of the
United States Department of Justice who ultimately report to the
Attorney General. As such, they are ultimately Executive Branch
officials of the Federal Government. When an ICE Trial Attorney invokes
the stay rule, he/she is essentially telling another Federal Executive
Branch official that an administrative directive issued by that
official must be temporarily placed on hold while other Executive
Branch officials review the decision and issue another administrative
ruling. It should be remembered that Immigration Court proceedings,
removal (deportation) proceedings, are not criminal judicial
proceedings . . . they are administrative proceedings held within the
realm of the Executive Branch of the Federal Government.
Which leads me to my summation. When it comes to immigration law
enforcement, at least the part that deals with removal (deportation)
matters, it appears that far too many people equate such matters with
criminal judicial proceedings. This may be due to a genuine lack of
understanding on the part of many; but is probably a deliberate
misrepresentation of reality on the part of at least some, who do so
for other agendas.
While there are parallels: aliens can be arrested and detained,
they are charged, they go to court, they can be represented by lawyers,
they can be released on bond in certain circumstances, they are
entitled to appeals (actually, more appeals than criminal suspects have
in the Federal court system); the process and the underlying premise
behind it all are notably different.
The process is all administrative. The rules of evidence are
different. While there are similarities, the rules of evidence favor
the Government, the prosecution, and the Federal Courts up to the
Supreme Court have more often than not upheld that posture for many
years. And, why is that? Because the entire premise of removal/
deportation is different from the criminal justice system.
If an offender is charged with a crime (and, there are actually
many immigration crimes, but we are not discussing those here), the
prosecution has the burden to prove the defendant's guilt beyond a
reasonable doubt and if it does, the violator might go to jail . . .
may well lose his/her liberty; they are punished. In the immigration
removal system, the administrative process, the burden, once the
Government proves a person is an alien, falls to the alien to prove
they are legally within the US and entitled to be here (8 USC 1361). In
reality, the Government almost always has evidence the alien also
violated the immigration law, so the real litigation usually ends up
over issues related to potential relief from deportation (like
political asylum). And it is those issues that usually go to appeal . .
. and take such long periods of time for appeal, and why even seemingly
simple deportation cases can take literally years before they are
finalized. That is probably something the immigration defense bar does
not want to have widely known.
But, the end result in such proceedings, if the alien respondent
(not defendant) is found guilty in a deportation case, is not going to
prison, but simply they are required to go home . . . to return from
where they came. This is not considered a punishment, it is merely
considered a revocation of the privilege of being allowed to enter or
remain in the United States. And that really is what has been lost in
much of this.
Foreign nationals, aliens, do not have any right to enter and
remain in the United States, though I suspect many would argue they do.
Unless Congress changes the law and grants such rights, aliens still
only have a legal privilege to enter and remain here. That really is
what immigration law enforcement, on the deportation side at least,
really is all about. It is very much like a homeowner having the
absolute right to deny entry into his home of someone outside asking to
come in. And, the homeowner need not have any reason nor give any
explanation why he chooses to deny entry to the stranger. And if the
homeowner chooses to allow a guest to enter, the homeowner has the
absolute right to tell the guest to leave at anytime for any reason.
That may be a simple analogy, but the US Government represents the
homeowner for the United States of America. While we may wish to
continue allowing certain invited guests into our home, we know there
are some dangerous intruders out there who mean to do us great harm.
Employing reasonable law enforcement techniques to keep those dangerous
intruders out, and to identify and remove those already here, even if
some of those techniques might seem somewhat at odds with our
traditional criminal justice procedures because it must be remembered
they are not part of that system, is a smart common sense approach to
helping keep our Nation safe.
Mr. Hostettler. At this time, the panel will now turn to
questions.
Ms. Swenson, first to you. What difficulties would an
immigration judge face in holding an open hearing to determine
whether to close a hearing to the public?
Ms. Swenson. There are a number of difficulties that an
immigration judge could face, especially in the context of a
case involving very sensitive secrets, for example, you know, a
child abuse case or a national security case. Sometimes the
identity of the alien himself is something that is a secret
that is sensitive in itself, and it would be difficult in a
situation where there is not a protective order or a closure
order in place to be able to keep that kind of information
secret while a protective order or, you know, a closure order
were being adjudicated. So the difficulty could possibly be
that, in order to adjudicate the closure itself, that sensitive
information could be disclosed. There are procedures to prevent
that, but that is a risk.
Mr. Hostettler. Thank you.
Let me ask you some questions about the so-called Creppy
memo that authorized the closure of removal cases. You have
already mentioned in your testimony that individuals were not
precluded from speaking to counsel or their family members or,
ultimately, the media. But did aliens subject to the memo have
an opportunity to introduce evidence and call witnesses in
support of their applications for relief from removal?
Ms. Swenson. There has been quite a bit of confusion
surrounding this issue. As I mentioned in my opening statement,
the Creppy memorandum didn't touch in any way the due process
procedures that are available to an alien. Aliens in these
special interest cases and these cases closed under the Creppy
memorandum were given full and fair opportunity to litigate
their claims, to present evidence, to present witnesses, to
cross-examine the Government's witnesses and to be represented
by counsel.
As I mentioned earlier, indeed an unusually high percentage
of the illegal aliens who were in these special interest cases
were actually represented by counsel.
Mr. Hostettler. Thank you.
Mr. Greene, why would it take more than 48 hours to file
immigration charges against an alien? And why would it take
more than 48 hours to bring an alien before an immigration
judge?
Mr. Greene. There are issues having to do with logistics.
First of all, it may be an arrest made on a Friday afternoon or
turned over from a local law enforcement agency on a Friday
afternoon, and there would be then a period of roughly 72 hours
before you could get the case before the immigration judge.
There may also be substantive issues associated with--
especially in the circumstances that we were dealing with after
the 9/11 attacks--knowing with certainty the identity and the
intent of the people that we had in front of us.
So the flexibility--generally, it isn't a problem for us to
be able to do 48 hours and to serve the charging documents. But
in certain circumstances it may be necessary for us to extend
the process of inquiry, particularly with respect to identity
and verifying claims that are made about how the alien came
into the United States or attempted to enter the United States
before we issue the actual charging document.
Mr. Hostettler. Thank you.
Mr. West, in discussing the so-called 48 hour rule, once
again in your testimony you note that it can take time for ICE
to determine what the appropriate ground of removal should be.
In what context would an ICE agent arrest an alien without
knowing on what ground the alien was removable?
Mr. West. Mr. Chairman, there are often times when an ICE
agent, formerly an INS agent, an ICE agent would encounter an
alien and determine that that alien was not here lawfully
simply by asking questions about how they entered the United
States, what kind of documents they may have, and that alien
may not present--as they are required by law to carry evidence
of alien registration, once alienage is determined, that can be
as simple as asking, are you a national or citizen of the
United States? They say, no, I am from such and such country; I
am a citizen of such and such country. Once they determine
that, the burden of proof shifts, actually, now for the foreign
national, the alien, to show that they are lawfully here in the
United States.
So once that ICE agent has established that this person is
a foreign national, is an alien, they know that--the agent then
knows that they have a person that must establish what their
status is. And the way it really works in the real world is the
agent will conduct record checks, either over the radio, on a
cell phone. If that person has no documents that are presented
or if the documents look bogus, if the record checks determine
no lawful status at the time, then the grounds for actually
detaining the alien, a prima facia case of probable cause that
this alien is unlawfully in the United States has been met.
The ICE agent will, in all likelihood, detain that alien,
probably bring him back to his office to conduct further
inquiries, further record checks to actually determine what
specific charges under the Immigration and Nationality Act
should be applied. He knows he has got an unlawful alien. He or
she does not know specifically what charge might apply. That
requires further inquiry, and that can take some time, that can
take hours sometimes, running additional record checks, running
down paper documents, that sort of thing.
Mr. Hostettler. Thank you.
The Chair now recognizes the Ranking Member for 5 minutes
for purposes of questions.
Ms. Jackson Lee. Thank you, Mr. Chairman. I am going to
yield first to the Ranking Member of the Full Committee, and I
will go after Mr. Conyers for his questions at this time.
Mr. Conyers. If that----
Mr. Hostettler. The Chair recognizes the gentleman from
Michigan for 5 minutes.
Mr. Conyers. Thank you.
Let me raise a question, first of all, to Mr. Rosenzweig.
Is it your general view that the four issues that are
raised in the measure that is before us are ones that could be
attached to the larger bill that we are working on in the
Committee without any serious detriment to our national
security concerns?
Mr. Rosenzweig. Yes. Most of the objections that I have
heard sound more in the nature of administrative, and those are
certainly things that need to be considered, but providing that
each--as each of these provisions does, that there are carve-
outs, for instances, in which legitimate national security
concerns are presented, that seems to me to answer most of that
problem.
Mr. Conyers. I also take it, sir, that you believe that
this balance between protecting constitutional and civil
liberties concerns is very important as we proceed in this
attack on terrorism. Because unless we have something
different, unless we are identified differently from our
adversaries, we end up losing or compromising our position in
another way.
Mr. Rosenzweig. It would be hard to disagree with that
sentiment.
Mr. Conyers. Well, let me ask everybody at the table, then,
since it is perfect--well, it may not be perfectly obvious.
Does everybody agree with that, all of our witnesses? Ms.
Swenson?
Ms. Swenson. Congressman, I would like to just make sure I
understand----
Mr. Conyers. That is all right. I will repeat it.
Ms. Swenson. Thank you.
Mr. Conyers. Is it your concern that we protect
constitutional rights and liberties under our existing
framework as we proceed in the war on terrorism or we become
indistinguishable from our opponents?
Ms. Swenson. Most certainly, Congressman.
Mr. Conyers. Okay. Mr. Greene.
Mr. Greene. Yes, Congressman. I think the Department has
gone on record that it is a both/and situation, that we can
have both homeland security and protection of our
constitutional rights as we continue in this struggle to
protect the homeland. So not only do I agree, but I agree
emphatically.
Mr. Conyers. Well, the current Attorney General said that,
but his predecessor did not come to those conclusions, I am
sorry to say, and that was the problem that takes us back to
the beginning.
Mr. Greene. Yes. Speaking from the Department of Homeland
Security, sir, I think Secretary Ridge has made clear that he
wants to have both homeland security and civil rights and civil
liberties, which is why we have created such a division within
the Department and actively pursued this----
Mr. Conyers. Well, I was thinking of the Department of
Justice, and I won't hold you to explain that. But I just
wanted to make sure that we understand that we have essentially
different views on this subject from my interpretation from the
Attorney General that was there for 9/11 and the present
Attorney General.
How do you stand on this concern, Mr. West?
Mr. West. Congressman, I was a Federal law enforcement
officer for 29 years, and I believe that I fully understand
what constitutional rights mean. Because every day that I
worked I had to deal with constitutional protection issues. Now
that I am a private citizen, I certainly expect my Government
to protect my constitutional rights, but I also want my
Government to protect my security, and I hope that that balance
is struck. And I want that to happen for all of us.
Mr. Conyers. Let me ask you about this matter of D-J--oh,
my time is up?
Mr. Hostettler. Five minutes. But the gentleman will be
given an additional minute to ask a question.
Mr. Conyers. Thank you.
I just wanted to find out--I suppose I should direct this
to the representative from the Department of Justice. In the
matter of D-J, we are talking about detaining mass exodus, 18-
year-old, and yet we have two different policies dealing with
the Cubans and with Haitians, and I am wondering if those can
be squared.
Maybe I should ask this to Mr. Greene, more particularly.
So here we have Cubans, Haitians, the D-J Issue, in which we,
apparently, for some are willing to send them a message that we
are turning them back so that they won't bother to come. Can
you comment on that briefly?
Mr. Greene. Yes, sir, I will try, recognizing that it is a
very complex issue.
The legislative structure that governs the history of Cuban
immigration to this country since the revolution is very, very
different from that of other countries in the Caribbean. There
were specific legislative provisions provided to Cuban
immigrants that go back to the 1960's that affect their
availability and their right to come and remain in the United
States. It was in an attempt to discourage all forms of mass
immigration migration in the Caribbean that the former INS
created the wet-foot, dry-foot policy. So if you made it to the
United States, then the provisions from those statutes that
came out of the Cold War period would apply, but while you were
caught on the high seas the attempt was to create a deterrence.
I mean, I will leave it to my colleague from the Justice
Department to describe sort of the policy implications of the
decisions today itself, but speaking from my knowledge of what
operated in the former INS, it was really a different set of
Cold War legislation that affected the one nationality as
opposed to the other.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentleman.
The Chair now recognizes the gentleman from California for
5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman, for the
time.
Mr. Rosenzweig, as I understand your testimony, you have
suggested that the subject matter that we are discussing here
today is not really a question of whether there are
constitutional violations. That is, the current law procedures
that we are talking about are not unconstitutional, but rather
your concern that perhaps some additional protective procedures
would further the interests of civil liberties.
Mr. Rosenzweig. That is correct, Your Honor--I am used to
appearing in appellate court--that is correct, Congressman.
With the exception of the blanket closure rule, which was held
unconstitutional by one circuit court in the Sixth Circuit
Court of Appeals, none of the policies that we are addressing
today is, in my judgment, unconstitutional. And I would note
that that policy was held constitutional by the Third Circuit.
So what I really think we are discussing here today are
questions of legislative grace, that is, what it is that this
body, in consultation with the Executive, deems the optimal
policy to reflect our values and our best cost/benefit analysis
of what to put in place.
Mr. Lungren. Thank you.
Ms. Swenson, with respect to closed immigration hearings,
you suggested that there were approximately 600 cases that
followed the Creppy memo, that that is not the policy of the
Department now, has not been for two-and-a-half years, but you
believe it imperative that the Executive Branch retain
sufficient flexibility to close an entire class of immigration
proceedings if circumstances warrant.
How and in what way would that--the long-term policy of the
Administration--be hampered if we were to adopt the legislation
of Mr. Berman and Mr. Delahunt, specifically section 101, which
would have as a general proposition that the removal
proceedings be held pursuant--or that they would be open to the
public, except when an immigration judge would, on a case-by-
case basis, make these specific determinations? And then, also,
the requirement that a compelling governmental interest be
shown?
Ms. Swenson. The debate, as I understand it, between on the
one hand the current state of affairs and what would be
presented under the bill is the difference between whether the
Attorney General be shackled from being able to effectuate a
closure of a category of cases instead of turning closure
decisions exclusively to the province of individual immigration
judges in a time of national emergency.
At this time, and at every time in history, our research
reveals, other than after 9/11, there is a case-by-case
determination. It is not on a strict scrutiny basis by
individual immigration judges as to whether or not to close
immigration hearings in almost every type of case but for, you
know, special cases involving child abuse, which is the only
other type of blanket closure that is available right now.
Mr. Lungren. But my question is--the legislation here would
not permit you to have a blanket policy as you had in the
Creppy memo, and so my question is, in what way would this
shackle the Justice Department from doing what we want it to
do, that is, to protect us from the threat of terrorism?
Ms. Swenson. Even the Creppy memorandum wasn't actually a
blanket closure because each individual special interest case
had to be individually determined to be--to warrant special
interest treatment. So even the Creppy memorandum had an
individualized case-by-case basis.
Mr. Lungren. Well, I guess my question would be this: Is it
more than just the administrative burden, as suggested by Mr.
Rosenzweig, that you are looking at? Is there a concern that
there would be failure on the ability of the Department to make
its case? Number one.
Or, number two, is it because of the inconsistent rulings
of individual immigration judges that you fear would result in
an inability for us, as a Government, to protect us from some
terrorist threat?
Ms. Swenson. All three of those concerns, Congressman, are
implicated by the bill.
First, it would be an administrative burden, that is true.
But, more importantly, in a situation where there is a national
emergency, it is not clear that the Government would be able to
prove on a case-by-case basis and a strict scrutiny basis the
closure of each individual case. And if it is not able to do
that, whether it be as a result of the number of individual
closure requests or because immigration judges would decide
each case inconsistently, that could be the type of thing that
would cause individual bits of information to be disclosed to
terrorist groups, who could then fit that information to a
larger mosaic that would thwart Government efforts.
Mr. Lungren. Mr. Chairman, I have more questions, but I
hope we can have another round.
Mr. Hostettler. I don't know if we will have another round.
If the gentleman would like to ask unanimous consent for an
additional minute.
Mr. Lungren. I would like to ask unanimous consent for an
additional minute.
Mr. Hostettler. The gentleman is recognized.
Mr. Lungren. What I am trying to determine is this: Is it
because of the uncertainty that necessarily occurs in cases
such as this? That is, if we are under an imminent threat of
terror that, as we are responding to an unknown threat out
there, that we believe that we need this for the Attorney
General?
Because in normal circumstances we would have the luxury,
if you will, of having more knowledge of what it is we are
looking for, not only generally but specifically with the
individual, and that that sort of unique set of circumstances
is at the basis of what you and the Justice Department think
you need. I am trying to figure out why you say--every time I
ask you the question about the Creppy memo, you tell me, well,
under most circumstances in the history of the country we
haven't done this. I understand that. That is why we are asking
why you should retain this flexibility, as opposed to the
Berman-Delahunt construction, which would say, no, even in
those situations we think the Government ought to have the
burden.
Ms. Swenson. Well, if ever we were to face another attack,
God forbid, there could be--well, the easiest way to look at
this is to actually take the actual events of 9/11, because
that actually happened, and look at what happened there.
The number of closure cases that came in the immediate
aftermath of the terrorist attacks made it necessary for the
Attorney General to be able to say, look, for this class of
cases we need to have closure, we need to have uniformity in
decision, and we need to be able to close the cases without
having to do an individual case-by-case determination that
would take a great amount of time.
Mr. Lungren. Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentleman.
The Chair now recognizes the Ranking Member of the
Subcommittee for 5 minutes for purposes of question.
Ms. Jackson Lee. I thank the gentleman very much; and as I
have said, this is a, I think, an important effort at remedy,
on a remedy that I think is necessary.
Professor Rosenzweig, let me say to you that--and I like
utilizing the term ``professor'', and I also am glad to see you
again. Only because my time was short that I did not get a
chance to probe you during the questioning dealing with privacy
issues. Maybe we will have another opportunity.
But I do believe we have common ground because we are
offended, mutually, not because of what we did after 9/11--
there was general unanimity on that issue--but because I think
we can do better in balancing both concerns as we move forward.
I do want to say to Ms. Swenson--I just want to acknowledge
a statement. I am just going to make this statement, that you
indicated in your statement that the closed hearings are not
really closed in an ordinary sense because aliens and their
counsel are free to release information about their proceedings
to their family members, friends, witnesses and the press. So
to me that is inconsistent with any argument by Justice and
others for the closing of the hearings, which are allegedly to
protect confidential information. I make that as a broad
statement.
I would ask you, in your statement that you made mention of
the automatic stay provision for bond appeals has only been
used a few hundred times since they were enacted in 2001, and I
would like to know how long those aliens were incarcerated
while their appeals were being--pending before the Board of
Immigration Appeals, and what the danger would be for having
those individuals having bond hearings to allow them to be
released to their families.
I am asking that, but I want to get Professor Rosenzweig,
if you would, one, to expound on the theory that you offered.
At the same time, I want you to finish the two points that you
wanted to make. But I would like you to expound on something
that I think was extremely salient, and that is that the
overall argument of our good friends here at the table
alongside of you, at least those from the Government, is that
it poses an administrative burden if we begin to do case-by-
case analyses.
To me, we need to move swiftly to fix it. Because I
slightly disagree with you. You are absolutely right that
constitutional rights do not fall upon an immigrant coming to
the shores, but if you are here, there are some constitutional
protections that you have.
So my idea is that we need to immediately rush to fix these
problems because we should not be standing on administrative
principles if we can find a balance.
I yield to the professor.
Mr. Rosenzweig. If I said that there were no constitutional
rights for immigrants at all, that would certainly be wrong.
They certainly possess some rights, and the courts have so
held, in coming to the United States. So I would agree with
you.
I guess I would take the opportunity to speak to the other
two provisions----
Ms. Jackson Lee. And the other administrative.
Mr. Rosenzweig. And the administrative.
With respect to 201, the notice of charges idea, again, it
strikes me that what we are talking about here is something
that has--it serves an important transparency function. You
can't answer charges you don't know about, and it is only when
you are notified of them that you begin to have the opportunity
to develop an answer.
We have set up a system in which each immigrant is entitled
to such a notice at some point in time, and it doesn't strike
me as unreasonable to set that time as at the same time that
the INS--or ICE now--determines what those charges should be.
Again, most of what I heard Mr. Greene say, and Mr. West,
sounded like very real administrative concerns about the
difficulty of collecting the information and making it--but
those same concerns actually, to my mind, apply in any system
we administer, the criminal justice system as well, and yet we
try and find the way to do that. I mean, if it is really a
resource problem, then the answer is probably more resources,
which I am sure would make ICE very happy to hear me say that,
rather than using the lack of resources as a justification for
a legal regime.
With respect to the automatic stay provision, which is 203,
again, I hear the concern that, you know, if the release order
is not stayed there is a possibility that the immigrant may
abscond, and that is a legitimate and real concern. But, again,
it seems to me the analogy to the criminal sphere is the
appropriate one. We don't have a system or a set of rules that
allows for the automatic detention of criminal defendants who
have been convicted. We have a presumption against their
release, to be sure, and that seems to me to make a great deal
of sense for a convicted criminal defendant, but it is only a
presumption that the individual is entitled to rebut, and it is
subject to an individuated determination, in the first
instance, in front of the district judge, and in the second
instance, if there is an adverse determination for either party
on appeal.
It does not strike me as unreasonable, since we have
created a system of immigration judges and Bureaus of
Immigration Appeals, to repose with those neutral third parties
the ability to make the determination on stay, and to provide
for appeal of an adverse determination by the Department if it
loses and if it can demonstrate a reason to think that the
immigration judge was wrong. And those are all very reasonable
things.
It is the kind of unilateral exercise of automatic
authority by a trial attorney that strikes me as getting the
checks and balances idea out of kilter a bit, since then the
authority reposes not with the judges of the immigration court
and the Bureau of Immigration Appeals, but with the trial
attorney himself. And, again, I assume that the decisions they
will make are not for bad motivation, but they remain human.
Ms. Jackson Lee. If I may, Mr. Chairman, just have him
finish his administrative question quickly, and Ms. Swenson on
her--if they will do it quickly--Ms. Swenson on her
incarceration question that I asked you.
Mr. Hostettler. Without objection, the gentlelady will be
given an additional minute.
Ms. Jackson Lee. I thank the Chairman. Let the professor--
--
Mr. Rosenzweig. I think I have captured most of what I
wanted to say about administration along the way, which is,
essentially, it is a real problem, but it shouldn't be the
decider on a set of legal rules. It should be--the decider on a
set of legal rules should be the values that we think are the
optimal resolution, and we should then provide the right
resources to meet our ideals, not let our ideals be driven by
our resources.
Ms. Jackson Lee. Thank you very much.
Ms. Swenson, you heard my earlier question about those
incarcerated, the automatic stay provision. How long were they
incarcerated? Do you have any----
Ms. Swenson. Just so I understand the Congresswoman's
question, if you don't mind repeating it.
Ms. Jackson Lee. I would be happy to.
In your statement, you mention the automatic stay provision
for bond appeals has only been used a few hundred times since
October, 2001; and I would like to know how long were those
aliens incarcerated while their appeals were pending before the
Board of Immigration Appeals? If you have some sense of how
long, on the average, they were held.
Ms. Swenson. I just want to make a small clarification. I
think it is very easy, in the context of immigration bond
hearings, to think of bond as criminal bond, and you even use
the word incarceration in connection with it. I think it is a
very easy thing to sort of confuse, and I know the
Congresswoman understands this. But, unlike in a criminal bond
context, an alien that is held on bond for the most part can be
released immediately if he or she returns to the country from
where he or she is from. So it is not an involuntary
incarceration type scenario. I mean, it is not a full answer,
but it is, indeed, not like the criminal context.
Ms. Jackson Lee. But it is if you are in fear of returning
to the country from which you have come and if you have been
here and your family is here and there is no place for you to
go. So do you know how long they have been held?
Ms. Swenson. I don't want to give you the wrong
information. The amount of time is, obviously, as a rule,
dictates only as long as it takes for the Board of Immigration
Appeals to consider the appeal.
Ms. Jackson Lee. So it might be a long time.
Ms. Swenson. I can get back to you on specific figures if
you would be interested.
Ms. Jackson Lee. I would, Ms. Swenson.
Thank you very much, Mr. Chairman. I yield back.
Mr. Hostettler. The Chair now recognizes the gentleman from
California for 5 minutes. Yes.
Mr. Berman. Thank you very much, Mr. Chairman.
The great thing about a hearing like this is issues come up
you don't expect, and you have to sort of deal with them.
The Chairman raised, right at the beginning of his
questioning, an obvious thing that I hadn't spent a lot of time
thinking about: How do you make the case that the hearing
should be closed when you don't have blanket closures? Do you
have to tell the immigration judge or do you have to reveal the
national security issues, the privacy issues, the compelling
Government interests for closure in an open hearing?
Well, that would be crazy. But it turns out--I checked it
out, and it is done. There is a prehearing hearing, and the
prehearing hearing is closed. And that was before the Creppy
memo. Because there was always the power to ask for a hearing
to be closed based on these issues. So the Chairman's very
legitimate question, existing rules provide for a closed
prehearing on whether the hearing should be closed or open, and
that is how it is predicted.
Now, Ms. Swenson, a lot of what you say is different than
what we read in the Inspector General's report. And what is so
funny is I met with the Deputy Attorney General and I asked him
about blanket closures, and he said, I think that was a
mistake, we never should have done that. And I asked the
Attorney General about it at a hearing, and he said, well,
mistakes were made. In other words, your vigorous defense of
your right to have these blanket closures is not consistent
with what I have heard from both the Attorney General and the
Deputy Attorney General.
But I want to get into what the Inspector General told us.
You sort of said the proceedings that were required to be
closed to family members and the public and the press weren't
really secret because all detainees were free to publicize them
as they liked.
Here is what the IG says: The decision to house these
special interest detainees in the most restrictive confinement
conditions possible severely limited a detainee's ability to
obtain and communicate with legal counsel. Detainees
interviewed by the Inspector General, the Justice Department
Inspector General, said that each time the unit counselor made
rounds through the facility he asked the detainees, are you
okay? The detainees said that initially they did not realize
that this question was shorthand for, do you want a weekly
telephone call?
A unit counselor confirmed to the Inspector General that
when he made rounds to the facility to provide legal calls he
asked the September 11th detainees ``are you okay'' to
determine whether they wanted to make legal calls. Detainees
who were interviewed reported that an affirmative response to
the question of whether they were okay resulted in them not
receiving a legal telephone call that week. A number of other
sources suggest there were communications blackouts imposed on
the detainees.
The picture you paint in the hindsight, detainees could
have coordinated a publicity campaign if they wanted to but
probably didn't because they were embarrassed, maybe, I think,
overreaches in terms of what really was going on.
But I also--you are the first person I know who has said
that 75 percent of the special interest detainees, this group
of 600 that you referred to, retained private counsel. Since
the names are a secret and the transcripts haven't been made
public, you're the first source of information. If there is a
way in a closed basis you can provide the information that 75
percent were, in fact, represented by counsel, I would be
curious to know about it.
And then the final thing that I would like you to--or the
third thing I would like you to comment on is your claim that
we shouldn't be concerned about the detainees' due process
rights just because the hearings were closed to the public,
press and family members. That is what--the public's first
amendment right to attend trials in which people's liberty is
at stake does serve to protect due process rights of
individuals. That is what the Sixth Circuit says in the Detroit
Free Press case.
Having heard Mr. Rosenzweig's testimony regarding the
benefits of openness and how to treat the presumption and not
using legal rules as the basis for lack of resources, and
understanding that there's always potentials that judges have
different interpretations of facts, but deciding whether
something is a special interest case is a decision made by FBI
agents in different parts of the country. They could have
different views of who should be in that special interest
category--we don't have an automatic formula that looks and
makes an automatic decision that says, in the special interest
category, not closed, open. I mean, it is part of our system.
But I am just curious as to your response to Mr. Rosenzweig's
testimony, and do you really think a compelling Government
interest standard is too high for the Government to meet?
Ms. Swenson. I guess there are--you have raised a number of
issues there. I will just start with just taking apart one
piece of what you mentioned and that is whether the Department
or the Government would prefer to have hearings, whether they
would be judicial proceedings or immigration proceedings like
this open to the public; and the answer there is most
certainly. Indeed, the vast majority of immigration hearings
are open to the public. There are----
Mr. Berman. I didn't know I asked that question.
Ms. Swenson. Forgive me, Congressman. Maybe you want to
direct me to one particular point that you want me to address
first.
Mr. Hostettler. Without objection, the gentleman will be
given an additional minute.
Mr. Berman. Thank you very much.
Some of my points were, I guess you could say, rhetorical.
But----
Ms. Swenson. I am starting to learn how it works here.
Mr. Berman. And I certainly wasn't asking you to comment
why you would say one thing when I got a different reaction
from the Attorney General. That is unfair to ask you. I am
mostly concerned about why you think a compelling Government
interest standard is too high for the Government to meet in the
context of presumption of openness but an ability to get it
closed where there is a compelling Government interest in doing
so.
Ms. Swenson. The current standard now is actually quite
high. It is the Government, in order to close or to obtain a
protective order over sensitive information, needs to be able
to demonstrate a substantial likelihood of harm as a result of
this closure----
Mr. Berman. That is for your individual closures, right?
Ms. Swenson. That is for the individual closures. That is
correct.
Mr. Berman. I am for going back to that, right.
Ms. Swenson. And that is actually what the current state of
affairs is now.
Mr. Berman. Except when you have a blanket closure policy.
Ms. Swenson. Right. Aside from the Creppy memorandum, that
is the normal state of affairs.
In a state of emergency, which is really the only situation
that we think is an appropriate time for, you know, for a
directive like the Creppy memorandum, it would be very
difficult not only to meet a strict scrutiny standard on a
case-by-case basis, but the amount of time it would take to be
able to make that kind of a showing in individual cases and the
possibility that immigration judges would, especially in that
kind of a heightened standard, come up with inconsistent
decisions on whether or not to close individual special
interest cases would be unacceptably, you know, threatening to
the national security. We would be unable to keep those----
Mr. Berman. What about FBI agents having to decide whether
something is a special interest case and the possibility that
the FBI agents in the West look at it differently than the ones
in the East or the Midwest or the South? You always have
individual decisions about classification. Individuals can come
to different conclusions about the same set of facts. How do
you deal with that?
Mr. Hostettler. The gentleman's time has expired.
The Chair now apologizes to the gentleman from Texas for
not recognizing him in proper order, and he is recognized for 5
minutes.
Mr. Gohmert. Well, sometimes people say they don't
recognize me in a crowd, so it is not unusual.
First of all, I want to address something that, Ms.
Swenson, you had said. You had indicated if ever we were to
face another event, God forbid. I think God has not forbidden,
because I think we face another event every day, which makes
your job all the more serious.
I heard a fellow that believes God is sovereign say one
time, just because God is sovereign doesn't mean you lean on
your shovel and pray for a hole. I think our Creator would
certainly know our abilities, and we are expected to use them.
So the trouble becomes in balancing self-protection versus, you
know, the rights that we should have ourselves.
So I want to ask each of you, and start with Mr.
Rosenzweig--we have talked before. I admire so much of your
writings. But I want to ask each of you to answer this
question: Do you believe there is a U.S. Constitutional right
to remain in this country in violation of U.S. Immigration laws
that are constitutional?
Mr. Rosenzweig. No.
Mr. Gohmert. Mr. Greene?
Mr. Greene. No.
Mr. Gohmert. Ms. Swenson.
Ms. Swenson. I don't want to be flippant and just say no,
but no.
Mr. Gohmert. Okay. You and Nancy Reagan can just say no.
Mr. West?
Mr. West. No, sir.
Mr. Gohmert. All right. Thank you.
Now, Ms. Swenson, you had mentioned that aliens have the
right to voluntarily return to their country of origin, which
would end the proceedings at any time; is that correct?
Ms. Swenson. That is right, Congressman.
Mr. Gohmert. Well, how does one actually go about
communicating the desire to get out of jail free and go home?
How is that communicated? How is that actually accomplished?
Ms. Swenson. This is probably more a question for Mr.
Greene.
Mr. Gohmert. Mr. Greene, if you can help.
Mr. Greene. Thank you, sir.
Through the lawyer or direct contact from the respondent in
a hearing, the respondent, him or herself, can make an
indication of a willingness to return; and at that point----
Mr. Gohmert. To whom?
Mr. Greene. To the Government's counsel or to the
immigration judge or, frankly, to any number of Government
officials who have legal authority to maintain custody over
that alien.
Mr. Gohmert. So they drop by every day and say, hey, are
you ready to go home voluntarily, or----
Mr. Greene. The alien is generally the moving party. So it
isn't like we go to them every day and say, have you had
enough? Are you ready? It is more like they would come to us
and say, this is what we would like to do.
Mr. Gohmert. They come to you even though they are locked
up.
Mr. Greene. They come to us in the metaphorical sense. Our
people----
Mr. Gohmert. Metaphorically it is very difficult for them
to come to you to if they are behind bars.
Mr. Greene. Physically it is, but our people are there on
site or are making visits or are in contact with our officials.
Mr. Gohmert. Because I have heard of people who have been
in for weeks, would like to go home voluntarily, and can't ever
find anybody to communicate that to so they can.
Mr. Greene. I don't know how--that doesn't--that isn't
consistent with the sorts of things that I'm hearing from our
detention people.
Mr. Gohmert. Well, I would appreciate if you would check on
that, how that can actually be accomplished.
The next question is a follow-up to that. If somebody does
want to voluntarily go, they are able to communicate that, the
U.S. Department of Justice says, great, take off, how do we
make sure they actually exit the country?
Mr. Greene. Oh, we still escort them.
But let me step back for a minute and just say that while
the regulations authorize us to be able to accept a request of
that nature, terminate the proceedings and allow that person to
return home, it doesn't always happen that way. And the reason
that we don't is that if I'm a person from a foreign country
under arrest for a state charge of violence, for example,
against an individual and in INS custody or in ICE custody or
in Department of Homeland Security custody, the Government may
not choose to allow that person to flee the consequences of the
state criminal proceeding that is going on.
That is an example of where we might want to----
Mr. Gohmert. And as a judge, I can tell you anecdotal
situations where, for example, one individual had a bunch of
DWIs. INS never did anything until he came to my court as a
felon. He has hurt people. He couldn't stop getting drunk--and
I would ask for an additional minute if I could.
Mr. Hostettler. Without objection, the gentleman has an
additional minute.
Mr. Gohmert. I sent him to prison so he's not a continuing
threat to society, and within a couple months apparently he was
out, because he came back to my court after he had another DWI
and hit somebody. And I said, how are you back? And he said,
well, they came and got me out of prison right after I got
there, took me to the border, and that is how I got back here.
So outside of--if INS is not going to get him out of the
country, at least send him to treatment so if he's going to be
here he's not gonna kill somebody. They let him stay 3 or 4
months, I think, before they deported him; and I don't know
whose county he ended up in.
So my question is, how do we make sure that if they are--
whether they leave voluntarily or leave involuntarily, how long
do you stay there to make them wait to come back in? Do you
stay 15 minutes to make sure they don't come back in? Do you
make them wait a whole hour before they turn around and come
back in? How often do they beat you back to the county, as this
guy did? What do we do to make sure they're not coming back?
Mr. Greene. Our people will--especially on the southern
border, our people will escort the person to the border and
turn them over to the Mexican authorities, and they return.
The Border Patrol will tell you that they have people on
the border 24/7 precisely for the purpose of making that easy
return to the United States much more difficult, if not
impossible, but that is a whole set of other----
Mr. Gohmert. You'd go on record as saying ``if not
impossible''?
You are aware there are a few people that come in every
day, so apparently it is not impossible.
Mr. Greene. I didn't say that it wasn't impossible. I said
that the Border Patrol are there.
So your characterization that they beat us--we wait there
for 10 minutes before he comes back or an hour before he comes
back, the Border Patrol are there all the time. They are at the
border 24/7 precisely for the purpose of managing that border,
and that was my point.
Mr. Gohmert. All right. My time has expired. Thank you.
Mr. Hostettler. I thank the gentleman.
The Chair now recognizes the gentleman from Massachusetts,
Mr. Meehan, for 5 minutes.
Mr. Meehan. Thank you, Mr. Chairman.
My question is for Mr. Greene. In December, 2003, the
Department of Homeland Security suspended a requirement that
all individuals previously registered with the National
Security Entry-Exit Registration System, known as the NSEERS,
that they register within 30 days and 1 year in the United
States. But NSEERS' call-in program--that was suspended. The
call-in program continued, and I am wondering what the current
status of the NSEERS program is.
As I mentioned in my opening statement, I had read and
worked with the Iranian-American Bar Association relative to
their study, and I am wondering whether anything has been done
to address some of the issues that were uncovered in this
study, specifically deplorable conditions that the NSEERS'
registrants endured at the centers.
One item of concern that arose from the NSEERS' process was
a status of men who did not come forward at the registration.
Common sense would tell me that if somebody didn't show up,
they're probably of more interest than those who did show up,
and these people have been sent underground while--and it seems
to me unlikely to cooperate with immigration officials. So
what, if anything, has been done to investigate known
immigrants that didn't show up for the NSEERS' program?
Mr. Greene. Congressman, I don't have that information
available with me now, so I am unable to sort of address the
current state of the NSEERS' program beyond what you have
already characterized. I will be happy to get specific
information on that program to you as quickly as we can. As
soon as I get back to the office I will get that process
started.
I know that there are--what I do know is that there are a
number of cases that have--that flowed out of that program that
are still under way, but how we can characterize beyond that? I
will need to verify my information before I can do so. I am not
aware of the status of the report that you have described, but
I will look into that as soon as I return.
Mr. Meehan. Does the characterization of the NSEERS'
program sound consistent with what you know?
Mr. Greene. It does. That is right. All we are working on
is the call-in system that I am aware of, but that is dated
information. And I say that with the caveat that, without going
back and talking to the folks who are involved in that program,
I would be reluctant to say that----
Mr. Meehan. But, as you may know, the legislation that--Mr.
Berman and Mr. Delahunt and others' legislation would terminate
NSEERS and provide relief to those adversely affected. Has
there been an effort to create or analyze a list of names,
nationalities and a total number of registrants, do you know,
that were detained under this program, including any impending
applications that you know of?
Mr. Greene. I think that data was looked at in connection
with the decisions that affected the way the NSEERS' program
was being deployed and utilized, so that some of the decisions
that resulted in the termination of certain features of that
program were based upon an analysis of some of that data.
Again, I would need to go back----
Mr. Meehan. If you could get back to me on that, that would
be great.
Mr. Meehan. Would you support legislation to codify an
existing homeland security memo related to the prosecutorial
discretion to allow factors such as family ties to contribute
favorably toward immigration proceedings?
Mr. Greene. I think the exercise of discretion and,
frankly, the importance of family ties is crucial as the future
of our immigration policy. And I base that certainly on my
roughly 29 years of experience with the INS, 10 of which were
as the District Director in the Denver District.
I have always been concerned from a policy point of view of
a legislative code going to the question of discretion. It
seems to me that in working with the Committee we may find
measures short of actual legislation that will create a
spectrum of factors to be considered in the exercise of
discretion; and, frankly, we would be happy to continue to
discuss that with you.
Mr. Meehan. Thank you. And I will get you those questions
in writing before the end of the hearing.
Thank you, Mr. Chairman.
Mr. Hostettler. I thank the gentleman.
The Chair now recognizes the gentlelady from California for
5 minutes.
Ms. Lofgren. I thank you, Mr. Chairman. I think this is an
important hearing to sort through the legal issues.
I want to specifically hone in on section 202 of the bill
that we are talking about and mention again--maybe I will just
talk about two cases that personally come to my attention just
because they are in California, to put a human face on the
discussion.
The first case is a gentleman who entered the United States
legally in the `70's. He is a legal, permanent resident of the
United States. He is married to a United States citizen, has
three United States citizen children and is a successful
businessman, employs hundreds of American citizens in his
business in California.
Ms. Lofgren. In the seventies, he was caught up in an
unfortunate matter where he pled guilty to a crime and nothing
ever came of that. He went out on a business trip. When he
attempted to reenter, the criminal conviction came up and he
was put into exclusion. He was told that he would remain in
jail forever unless he waived his right to appeal. And
ultimately, I think he made big a big mistake, but in order to
get out, agreed not to pursue his appeal.
The second case is a Jewish woman from Russia who came into
the United States on very shaky documents, personally, as a
young girl. She straightened out. She married an American
citizen. She had a U.S. citizen child. She was teaching violin
at the Jewish community center in my county. She wanted to
become a citizen and she got caught up in the entry. She was
held in jail and told that she would only be allowed out if she
agreed not to appeal her situation. And she had, at least
arguably, one appeal that might have been successful. I wrote
to our former colleague, Mr. Hutchinson, last year, asking
him--this appears to be extortion, both individuals--in fact,
the lady from Russia has been deported and has been separated
from her husband and child, and her parents are also U.S.
citizens.
The other businessman is still here. They're not flight
risks. So the only issue was the Government extorting a waiver
of their rights in order to get out of jail. It strikes me that
that is not a good policy for the United States.
And when I wrote to Mr. Hutchinson, he answered on April 15
of last year: We appreciate your concerns regarding due process
rights in relation to the release of detained aliens. We are,
however, unable to provide any policy materials for your
review, because the DHS does not have a policy regarding
releasing detained aliens in exchange for a waiver of rights.
It strikes me, therefore, that section 202 is an important
element to putting some kind of order, due process and law into
this situation. And I am wondering, this is Mr. Greene's
bailiwick, and I would appreciate a comment from Mr. Rosenzweig
whether you think section 202 of the proposed act would
regularize the two cases that I have described here today.
Mr. Greene. Congresswoman, it is always a pleasure to deal
with your questions. I think it is true, that, again as both a
matter of law and as a matter of good public policy and good
governance, an individualized bond determination is a critical
feature of that structure. I also think that there are certain
public interests that need to be balanced against the
individual bond determination, and particularly the kind of
experience that those of us who come from the former INS had in
Miami in 1980 as one of those examples. And it seems to me that
knowing what we do know about the drain of resources that is
involved in dealing with a mass migration emergency, especially
now at a time when those resources are also committed to
dealing with potential terrorist threats in the homeland,
speaks to some prudence with respect to applying an
individualized bond determination in every case or in every
circumstance.
I don't--I am not comfortable with the situation you have
described either. And if I can interpret the former Under
Secretary's memo, it could be that the sense was we don't have
a quid pro quo policy because that would be a bad policy, it
would seem to me.
Ms. Lofgren. I would be happy to provide the letter to you.
Mr. Greene. And I would happy for you to do that because
i'd like to look into those cases if you don't mind.
Ms. Lofgren. I ask unanimous consent for an additional
minute.
Mr. Hostettler. Without objection.
Ms. Lofgren. What he said, the decision is discretionary
and we are balancing the risk of flight and public endangerment
against the benefit of release. He did not address the issue of
extortion of the waiver of rights in order to gain release,
which I think is not very American.
Mr. Greene. Without knowing the facts----
Ms. Lofgren. As a matter of policy.
Mr. Greene. As a matter of policy, what comes as close to
what we are describing here is the circumstance we spoke about
earlier.
Ms. Lofgren. If I may, these are just two cases. I have
seen actually at least a dozen of these cases just pop through
my office, and none of them have anything to do with terrorism,
and most of them are people who have very strong ties to United
States citizens, spouses and children.
Mr. Rosenzweig. I am going to offer a pseudoacademic
response, which is I think what you are saying is probably
endemic to all of our systems. Waivers of rights of appeal are
often part of plea bargains in the criminal justice system. And
a large fraction of that is because we can't--we don't have the
resources to deal with the throughput.
So I concur with you that in many ways it is a very
unfortunate circumstance. It sounds quite unAmerican. And I
would think that a systematic reexamination of that and
provision for individualized bond determinations may be, except
in extraordinary circumstances, like mass migrations from
Haiti. I don't know how you couch that exception to the statute
either, precisely. Tries to capture both ends. But unless we
are going to massively expand the resources available in the
immigration and adjudication system and parallel in the
criminal justice system, which we are not going to do, you are
going to see that no matter what. And it is an unfortunate
thing, but I don't know that we can bemoan it. But I don't know
we can necessarily fix it except in individual cases.
Mr. Hostettler. The Chair now recognizes the gentleman from
Massachusetts for 5 minutes for questions.
Mr. Delahunt. You know, Mr. Rosenzweig, you used the word
``resources'' again, and everything that I have heard here
today tells me that--and with all due respect to both Mr.
Greene and Ms. Swenson, there really are no sound policy
reasons that I think that have been articulated that would
contradict what the bill would propose to do. But, you know, in
the end, democracy isn't cheap. I mean, that's the bottom line.
And I'm reflecting back on our own history during World War
II, the internment of the Japanese. And I'm not suggesting that
they're the same, but there are some parallels in the larger
sense. And earlier, I quoted from the GAO about how we are
perceived throughout the world, and, with all due respect, Mr.
Greene, I receive a huge number of complaints from people
coming to this country who say they are never coming back
because they feel mistreated when they come to our borders. And
I know you are the director of training. I mean, we have got to
change, if you will. And I understand that we justifiably have
a concern about our national security in the aftermath of our
national tragedy, but there are real consequences that are long
term in nature that affect our national security. And that GAO
report enumerates them extremely well.
But when I think that the people in a survey that
apparently reflect the sentiment of the British people say they
prefer China over the United States and we both have democratic
traditions, we better wake up. We are not trying to do anything
to diminish our national security here. But I think we've got
to put this in a larger context. I mean, what is America really
about if not about individualized justice and transparent
government? When you think of the concept of America, that to
me is the essence of what we are in terms of a body politic.
And, Ms. Swenson, you talk about, you know--we are talking
about 24 hours, 48 hours, I don't care if it's 72 hours or a
week. We did a week in the PATRIOT Act, and concerns about, you
know, during the course a motion, you know--I'm using terms
from the criminal law to close a hearing--I don't think--I
can't speak for Mr. Berman, but I would presume that that
motion to close a hearing would be conducted in camera. I mean,
there just doesn't seem to be any policy issues.
I think in response to Mr. Berman's raising the potential
inconsistency among individual FBI agents, in terms of who is a
potential bad guy and who is not, is a very real one. I
understand we don't operate in a perfect world. But I just fail
to see, you know, why there would be any objection, obviously,
with some tweaking, to the bill that is under consideration
here today.
I think it was Mr. Rosenzweig who put it out there, and he
said this is about recalibrating checks and balances. And you
know, we have got to really remember our own history here and
what we're about and what we stand for as a Nation. And I'd
invite any comment from any of the panelists.
Mr. Greene. I would only say this, Congressman, that both
as a citizen, as a employee of the executive branch and as a
32-year public servant with the Government, that I am equally
concerned--and I know my department is equally concerned--about
the perceptions that we create by the policies that we
implement to make our country safe. And our willingness to work
with the Committee, with everybody here to find the right
calibration, is unstinted in that regard.
Mr. Rosenzweig. I guess I would just add I think you have
it exactly right. The genius of the framers of the Constitution
was the context of both giving, as Hamilton said, energy to the
executive to address our national needs while constraining that
energy with the checks and balances. Those checks and balances
are sometimes legislative--oversight of legislation. They are
sometimes judicial oversight, but they are captured in the idea
that we should be skeptical of any set of rules that operates
in a broad brush without individuated consideration, and we
should be skeptical of rules that tend toward the presumption
against that oversight.
That is not to say that there aren't perfectly legitimate
reasons in many, many instances, in which the end result of the
policy ought to be exactly the same as either under the Creppy
memo or under the process proposed. But how you get there, I
think, matters.
Ms. Swenson. Clearly my turn since, you are looking at me,
Congressman.
Mr. Delahunt. It is not necessary. I just, you know,
articulated my feelings. I want you to know that they are
heartfelt. I understand that the problems that you encounter on
a regular basis are considerable. If the Chair would indulge me
for an additional minute.
Mr. Hostettler. Without objection, the gentleman is
recognized for an additional minute.
Mr. Delahunt. I have a question here, and I'll direct it to
Ms. Swenson and Mr. Greene. You lay out in your testimony the
dual authorities of the Department of Homeland Security and the
Attorney General under 236 (a). That is a small a. I'm curious
about 236, large A, that was added by section 412 of the
PATRIOT Act. We have been informed that this power has never
been used.
Can you tell us who now has the power of certification
granted in section 412? And has it ever been exercised? If it
hasn't, is it still necessary? You know, the Members of this
Committee worked hard in negotiating that language and we
unanimously agreed--because I participated in those
discussions--that the power to hold somebody for 6 months at a
time essentially on the word of the Attorney General was an
extraordinary power. It was something we were willing to do in
an emergency, but we knew it had to be monitored closely. So
whoever has the authority to--over 236 A--one of you owes us
six out of the last seven reports required by that provision of
the PATRIOT Act, and I'm sure they will be forthcoming shortly
after the conclusion of this hearing, Ms. Swenson. I yield to
my friend from California.
Mr. Hostettler. The time for the gentleman has expired. And
by unanimous consent, he has been given an additional minute,
and that will be used by the witnesses to respond to the
question at this time.
Ms. Swenson. Well, I won't use too much of that minute, but
I'm not prepared to talk about the PATRIOT Act today, but I
would be happy to take any questions back to the Department and
get you an answer.
Mr. Greene. Thank you. My bench tells me that is not
entirely resolved and we will get back to you.
Mr. Berman. The only other issue I want to bring up in all
my second round--and I don't need any of that--is just on this
one issue. This was an interesting case where the Justice
Department came to us with this need to be able to detain
longer. And then in extraordinary circumstances, based on the
certification, to hold--this is about removal versus indictment
and how long you have to decide and to hold.
We give in the PATRIOT Act this authority 7 days to make
that decision and extend the time to appear before an
immigration judge. And then the authority, I guess, is totally
unused, and on its own; you promulgate a regulation or exercise
some preexisting authority to do it without any of the
safeguards or balances. I think this is one of the four issues
that is directly connected to the PATRIOT Act where the
Congress here--it is appropriate for us to set the ground
rules. And that is all I wanted to say.
Mr. Hostettler. The gentleman's time has expired. The Chair
wishes to thank members of the panel for your contribution to
this deliberation as well as the record. At this time, I would
like to yield shortly to the gentlelady from Texas if she
wishes to make a comment.
Ms. Jackson Lee. I want to again thank the Chairman of the
Full Committee and yourself and the Ranking Member of the Full
Committee and Mr. Berman and Mr. Delahunt for I think focusing
on a very important issue.
I leave the witnesses with this sort of backdrop. Yesterday
we experienced another wonderful exercise of running without
your shoes on at a fast pace, and those of us who are ladies
with high heels, faster than you could have imagined we could
have run. It was a second incident of a private airplane
entering nearby our secured airspace. And on the second time
around, as a Member of the Homeland Security Committee, my
first response is to ban all private airplanes nationally. And
then I narrowed my thought processes and then said anywhere
within 1,000 miles of Washington, D.C.
I use that to say, even though we will probably have to
address that, Mr. Chairman, is probably overbroad. And I would
only hope that out of this hearing, with the humor I have just
offered you, my good friends from Justice and ICE would
recognize that what we are saying to you is that we are in
sympathy. We are your colleagues on this issue on the war on
terror, but we find there are aspects of what is being utilized
that are overbroad, and that we can find the balance that
Professor Rosenzweig has indicated and this legislative
initiative has indicated. And I hope the Chairman and myself
will be able to work through these issues and find some common
ground.
We welcome the Justice Department and ICE. And I want to
thank Mr. West for his service of 29 years. We welcome you in
participating in this process.
And with that, Mr. Chairman, I yield back.
Mr. Hostettler. Thank the gentlelady and wish to amen her
in the ban of 1,000 miles of any private aircraft. Once again,
I thank the members of the panel.
All Members are advised that they will have 5 legislative
days to make additions to the record. Without objection, this
Subcommittee is adjourned.
[Whereupon, at 12:20 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking Member,
Subcommittee on Immigration, Border Security, and Claims
I have said many times that immigration does not equate with
terrorism, but I understand that it was difficult to maintain that
distinction during the aftermath of the September 11th attacks. The
purpose of this hearing is to take a calmer look at some of the
immigration removal procedures and detention policies that were
implemented during that period.
On September 21, 2001, Michael J. Creppy, the Chief Immigration
Judge for the Executive Office for Immigration Review (EOIR), issued a
memorandum to all Immigration Judges advising them that the Attorney
General had implemented additional security procedures for certain
cases. In these cases, the Immigration Judges were required to close
the hearings to the public and to avoid the disclosure of any
information about the cases to anyone outside the Immigration Court.
Secret hearings are inconsistent with our most basic principles of
fairness. Immigration removal proceedings determine whether individuals
will spend months in detention, be separated from their families, and
then be removed from a country in which they may have lived for years.
Hearings should not be conducted behind closed doors unless there is a
compelling reason for such secrecy.
This practice is addressed by Congressman Berman's Civil Liberties
Restoration Act of 2005, H.R. 1502, which I have cosponsored with
Congressman Delahunt. Section 101 of the Civil Liberties Restoration
Act would prohibit blanket closures of immigration hearings. It would
permit closure only when the government can demonstrate a compelling
privacy or national security interest.
Before September 11, 2001, the former Immigration and
Naturalization Service (INS) was required to decide whether it was
going to initiate deportation proceedings within 24 hours of arresting
an alien. On September 20, 2001, this was changed to 48 hours or an
additional reasonable period of time in emergency or other
extraordinary circumstances.
Section 102 of the Civil Liberties Restoration Act would require
DHS to initiate proceedings within 48 hours of an alien's arrest or
detention. It also would require that any alien held for more than 48
hours be brought before an immigration judge within 72 hours of the
arrest or detention. This would not apply to aliens who are certified
by the Attorney General to have engaged in espionage or a terrorist
offense.
Although the Supreme Court has upheld mandatory detention when
Congress has expressly required such detention for a discrete class of
non-citizens, it has not authorized the executive branch to make
sweeping group-wide detention decisions. Nevertheless, since September
11, 2001, the Department of Justice (DOJ) and the Department of
Homeland Security (DHS) have mandated the detention of certain classes
of non-citizens without any possibility for release until the
conclusion of proceedings against them.
Section 202 would require DHS to provide all alien detainees with
an individualized assessment as to whether the detainee poses a flight
risk or a threat to public safety, except detainees in categories
specifically designated by Congress as posing a special threat.
On October 31, 2001, the Justice Department issued a rule that
enables the government to nullify a judge's order to release an
individual on bond after finding that he is neither a flight risk nor a
danger to the community. The rule permits the Department to
automatically stay an Immigration Judge's decision to release an alien
if the government originally denied bond or set it at $10,000 or more.
No standards govern the granting of a stay in these cases; it is simply
at the discretion of the government.
Section 203 permits the Board of Immigration Appeals to stay the
immigration judge's decision to release the alien for a limited time
period and only when the government is likely to prevail in appealing
that decision and there is a risk of irreparable harm in the absence of
a stay.
I hope that we can work together to resolve these issues. Thank
you.