[Senate Hearing 107-261]
[From the U.S. Government Publishing Office]
S. Hrg. 107-261
REVIEW OF INS POLICY ON RELEASING ILLEGAL ALIENS PENDING DEPORTATION
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HEARING
before the
PERMANENT SUBCOMMITTEE ON
INVESTIGATIONS
of the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 13, 2001
__________
Printed for the use of the Committee on Governmental Affairs
_______
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COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota JIM BUNNING, Kentucky
Joyce A. Rechtschaffen, Staff Director and Counsel
Hannah S. Sistare, Minority Staff Director and Counsel
Darla D. Cassell, Chief Clerk
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PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
CARL LEVIN, Michigan, Chairman
DANIEL K. AKAKA, Hawaii SUSAN M. COLLINS, Maine
RICHARD J. DURBIN, Illinois TED STEVENS, Alaska
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota JIM BUNNING, Kentucky
Linda J. Gustitus, Chief Counsel and Staff Director
Kim Corthell, Republican Staff Director
Mary D. Robertson, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Levin................................................ 1
Senator Collins.............................................. 3
Senator Carper............................................... 21
WITNESSES
Tuesday, November 13, 2001
Michael A. Pearson, Executive Associate Commissioner for Field
Operations, U.S. Immigration and Naturalization Service,
accompanied by Gustavo DeLaVina, Chief, U.S. Border Patrol..... 6
Mark P. Hall, President, Local 2499, National Border Patrol
Council, and Senior Border Patrol Agent, U.S. Border Patrol,
Detroit, Michigan.............................................. 29
Keith M. Olson, President, Local 2913, National Border Patrol
Council, and Senior Border Patrol Agent, U.S. Border Patrol,
Bellingham, Washington......................................... 32
Eugene R. Davis, Retired Deputy Chief Patrol Agent, Blaine
Sector, U.S. Border Patrol, Blaine, Washington................. 35
Alphabetical List of Witnesses
Davis, Eugene R.:
Testimony.................................................... 35
Prepared statement........................................... 69
Hall, Mark P.:
Testimony.................................................... 29
Prepared statement........................................... 61
Olson, Keith M.:
Testimony.................................................... 32
Prepared statement........................................... 65
Pearson, Michael A.:
Testimony.................................................... 6
Prepared statement........................................... 49
Exhibits
1. GMap of various sectors of the U.S. Border Patrol............ 73
2. GINS Notice to Appear form showing failure to provide address 74
3. GINS Change of Address Form.................................. 75
4. GINS Form I-213, Record of Deportable/Excludable Alien....... 76
5. GList of systems for background checks....................... 77
6. GFY 2001 Arrests by Border Patrol in Detroit Sector.......... 79
7. GStatement for the Record of the U.S. General Accounting
Office......................................................... 80
8. GLetter request from Joe Bryan, Legislative Assistant to
Senator Carl Levin, dated October 19, 2001, to the U.S. Border
Patrol, and data provided in response to request for U.S.
Border Patrol arrest statistics in the Detroit Sector.......... 93
9. GLetter request from Permanent Subcommittee on
Investigation's Chairman Carl Levin, dated October 23, 2001, to
U.S. Immigration and Naturalization Service Commissioner James
Ziglar, and information provided in response to request
regarding activities of the U.S. Border Patrol at the No4rthern
and Southern Borders........................................... 122
10. GLetter from the Immigration and Naturalization Service,
dated December 20, 2001, to the Permanent Subcommittee on
Investigations, regarding issues raised at the Subcommittee's
November 13, 2001 hearing...................................... 131
11. GLetters between Permanent Subcommittee on Invesitgations
and the Executive Office for Immigration Review regarding
statistics on the number of aliens arrested by the Border
Patrol while in the process of illegally entering the United
States......................................................... 136
12. GChart entitled U.S. Border Patrol Suspect Processing....... 139
13. GMemorandum dated December 20, 2001, from Michael Pearson,
INS Executive Associate Commissioner to Regional Directors
requiring ``Criminal Indices Checks'' for all aliens placed in
INS removal proceedings........................................ 140
REVIEW OF INS POLICY ON RELEASING ILLEGAL ALIENS PENDING DEPORTATION
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TUESDAY, NOVEMBER 13, 2001
U.S. Senate,
Permanent Subcommittee on Investigations,
of the Committee on Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:30 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Carl Levin,
Chairman of the Subcommittee, presiding.
Present: Senators Levin, Collins, and Carper.
Staff Present: Linda Gustitus, Chief Counsel and Staff
Director; Mary D. Robertson, Chief Clerk; Ross Kirschner, Staff
Assistant; Joe Bryan and Tara Andringa (Senator Levin); Kim
Corthell, Republican Staff Director; and Eileen Fisher,
Investigator to the Minority.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Good morning, everybody. Today, the
Permanent Subcommittee on Investigations will hear from current
and past employees of the U.S. Border Patrol who have come
forward to express their concern and dismay at the Immigration
and Naturalization Service's practices, the INS practices,
involving the release of persons arrested for trying to gain
illegal entry into the United States. While the problems raised
by the Border Patrol agents would be serious in normal
circumstances, they carry particular weight since the attacks
of September 11.
The U.S. Border Patrol is, according to its own
description, the mobile, uniformed law-enforcement arm of the
INS. It was officially established in 1924 and was given the
responsibility of combating alien smuggling and illegal entries
other than at ports of entry. While the Border Patrol itself
has changed significantly over the years, its principal mission
has remained the same. The area we will be focusing on in this
hearing involves the illegal entry of persons into the United
States, outside of normal ports of entry.
Ports of entry are the only places where people may legally
enter the United States. They are locations such as airports,
bridges and highways, where INS officers and Customs agents
review persons, papers and luggage, to decide whether to allow
someone into the United States. Today's hearing looks at
illegal entries made at places other than these official ports.
While the statistics that we use to illustrate the problem
may include people who have been in the country illegally for
some time, what we are focusing on today are people who are
arrested while trying to slip across our Borders without
subjecting themselves to inspection at a port of entry as
required by law. Our witnesses today are from two sectors of
the Border Patrol, and as you can see from this map, the Border
Patrol is divided into 21 sectors, and the representatives that
we will have testifying today are from the Detroit Sector,
which covers four States, Michigan, Ohio, Indiana and Illinois,
and the Blaine Sector, which covers Alaska, Oregon and the
Western half of the State of Washington.\1\
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\1\ See Exhibit No. 1 which appears in the Appendix on page 73.
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When persons are arrested by the Border Patrol, the large
majority voluntarily returns to their country of origin,
usually Mexico or Canada. The others, perhaps as many as one-
third of those arrested on the Northern Border, but just a
small fraction arrested on the Southern Border, are scheduled
to appear at a removal hearing. The Border Patrol decides
whether those persons should be detained, released on bond or,
as is most often the case, released on his or her own
recognizance while awaiting the hearing. The removal hearing
can take several months to occur. Detention decisions are not
made by the Border Patrol alone. If the Border Patrol decides
to detain a person or set a bond to help assure that a person
shows up at a hearing, the INS deportation office can revise
that decision and order the person released on a lower bond or
on his or her own recognizance.
To be released on your own recognizance means that you are
released on your promise that you will appear at the scheduled
hearing. There is no bond. For a number of reasons that we will
be discussing at this hearing, the Border Patrol and the INS
release on their recognizance a significant number of people
who are arrested for illegal entry, even though it is clear
that most will not show up at their removal hearing. That means
that most people who get caught and arrested for illegal entry,
who do not voluntarily return to their country, are allowed to
move at will in this country with no constraints, other than a
written instruction to appear at a hearing that is likely to
result in their removal from this country, and that is absurd.
Look at the statistics that we were able to obtain from the
Detroit Sector.\1\ In fiscal year 2001, the Detroit Sector of
the Border Patrol arrested 2,106 people. A significant
percentage of those were arrested while actually attempting to
enter the country illegally. Now, we do not have that exact
figure, but a significant percentage of the 2,106 were actually
arrested in the process of entering the country or attempting
to enter the country illegally. Of those 2,106, slightly less
than two-thirds were voluntarily returned to their country of
origin. That is 773 were issued notices to appear at a removal
hearing. Pending their removal hearing and based on statistics
provided by Border Patrol agents, we estimate that 85 percent
of the 773 were released on their own recognizance, or about
650 people. The rest, about 116 people, were detained or
released on bond. So that means, again, that about 650--or 657
on that chart--were released on their own recognizance.
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\1\ See Exhibit No. 6 which appears in the Appendix on page 79.
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Now, how many of those people who were released on their
own recognizance that they would appear at a hearing--how many
of those people actually showed up for the hearing? The INS
does not know. One former INS district director and Border
Patrol chief told us that he thought that the percentage of
persons arrested, again outside a port of entry, and released
without bond, who do not show up for their hearing, was 90
percent. Our conclusion is that the vast majority of people
arrested by the Border Patrol while attempting to enter the
country illegally in the Detroit Sector, who do not voluntarily
return to their country, are released on their own recognizance
and do not show up for their removal hearings.
And, to add insult to that injury, the INS has told us that
if a person does not appear at their hearing, little or no
effort is made to find them. I view this to be a dysfunctional,
absurd system. The INS must know, even without keeping
statistics, that once a person is released after being arrested
for illegal entry, they stand a very good chance of avoiding
removal at all. So why then does the INS continue to release so
many on their own recognizance? That is what we are going to
explore this morning. We will hear this morning not only from
Border Patrol officers on the front lines, we will also hear
from the first panel of witnesses who represent INS and Border
Patrol management.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you very much, Mr. Chairman, and
thank you for calling this important hearing to review the
Immigration and Naturalization Service's policy of releasing
illegal aliens while they await their deportation hearings. We
will hear that many of the individuals released never appear
for their hearings, choosing instead to vanish into American
society, and adding to the estimated 8 million illegal aliens
currently in the United States.
Many of the 8 million illegal aliens in America entered our
country legally, but overstayed their visas, others slipped
undetected across our Borders. A significant number of others
were apprehended by the Border Patrol, but released pending the
scheduling of a hearing before an immigration judge. As Senator
Levin indicated, according to one recently retired INS
official, as many as 90 percent, or 22,000 of this group, do
not show up for their hearings each year. The obvious question
arises: Is the INS policy of releasing individuals before their
deportation hearings take place in the best interest of our
country's national security?
Last year, the Border Patrol arrested 1.2 million people
who entered the United States without presenting themselves for
inspection at a port of entry, as required by law. The vast
majority of these individuals returned voluntarily to their
country of origin after the Border Patrol collected information
about them, including a fingerprint, that is put in the
Immigration Service's automated fingerprint system, called
IDENT. Thousands of others, perhaps 20,000 to 30,000 of those
apprehended, are scheduled for a hearing before an immigration
judge. The vast majority of those released, as we have
indicated, failed to show up. Although the INS may send out a
notice to these no-shows, INS agents are not routinely sent out
to locate the illegal aliens who fail to appear.
This morning, we will hear disturbing testimony describing
how INS agents would have difficulty locating these no-shows,
even if they were going out to look for them, in part because
the contact information the illegal aliens provide is not
verified consistently. We will also hear how criminal and
background checks are not routinely conducted prior to
releasing the illegal alien, a policy that could result in
felons or other dangerous individuals being released into
American society.
The lack of detention space is another factor that may
influence how many illegal aliens are detained. The policy of
releasing illegal aliens pending deportation hearings is not
limited to aliens who are apprehended by the Border Patrol when
they try to enter the United States outside a port of entry. In
September 2000, the General Accounting Office reported that it
is the policy of the INS to release aliens seeking asylum, whom
the agency has determined do not pose a flight risk.
In 1999, some INS district offices released nearly 80
percent of the asylum seekers pending their asylum hearings,
yet as many as one-third of these individuals failed to appear
for their asylum hearings. In fact, many of them never even
bothered to file an application for asylum. A more recent
report issued by the Department of Justice Office of Inspector
General notes that more than 75 million individuals are
inspected each year at U.S. airports for potential admission to
the United States, some of whom are referred for secondary
inspection. The report estimates that approximately 10,000 of
the individuals subjected to a secondary inspection are ordered
to gather additional documentation and report to an INS
district office to complete the inspection.
Included among those whose inspections were deferred were
individuals about whom lookouts had been placed on databases,
as well as people with criminal records. The report indicates
that at least 11 percent of those paroled failed to complete
the inspection, and that 50 percent of these no-shows had
criminal records or were on the lookout list. The Inspector
General's report notes that the INS did not consistently track
these inspections to completion and conducted little or no
follow-up on the no-shows. Now, more than ever, we must ensure
that we know who is being permitted to enter the United States.
I hope that this hearing will draw attention to the larger
problem of securing our Nation's Borders, particularly our
porous Northern Border, as it appears to be the entryway of
choice for a number of terrorists, and this is an issue that I
look forward to working with the Chairman on and have asked him
to pursue. For example, in December 1999, Ahmed Ressam drove a
car loaded with 130 pounds of explosives and timing devices
from Canada to the State of Washington, with the intention of
bombing the Los Angeles International Airport. Thankfully, he
was apprehended by an alert U.S. Customs Agent as he attempted
to enter through a port of entry.
Convicted in April on terrorism charges, Ressam awaits
sentencing next year. There are other examples, as well. More
recently, a reputed Bin Laden operative, wanted in connection
with the attacks on the World Trade Center and the Pentagon,
also chose to enter the United States from Canada. The Southern
Border has long been a focus of INS resources, while the
Northern Border consistently has been understaffed and
underfunded. Only about 340 Border Patrol agents and about 500
INS inspectors watch a Border nearly 4,000 miles long in the
continental United States alone, and staff 113 ports of entry.
Prior to September 11, a number of these ports were not staffed
and guarded 24 hours a day, and agents in Maine have told me
that they feel extremely overworked and stressed in trying to
fully staff these ports, 24 hours a day.
The comprehensive new anti-terrorism law, signed recently
by the President, contains provisions to strengthen immigration
enforcement and otherwise aid in the fight to detect and thwart
terrorist activity. One important provision would authorize a
tripling of the number of Border Patrol personnel, Customs
service personnel and INS inspectors along the Northern Border.
It also authorizes $100 million to improve INS and Customs
Service technology, and additional equipment for monitoring the
Northern Border. Swift implementation of these measures is
critical to strengthening our homeland security.
I look forward to hearing the testimony from all our
witnesses today, and again I commend the Chairman for chairing
and holding this important hearing. As the President has said,
we live in a very different world from the one we lived in on
September 10. We need to adapt to that new reality by improving
the methods by which we protect our Borders, our liberty and
our lives.
Thank you, Mr. Chairman.
Senator Levin. Thank you, Senator Collins, and thank you
for your good work in this area. Before I introduce our first
panel, I want to just make a statement about our second panel.
The second panel consists of two current employees of the U.S.
Border Patrol, both of whom are senior agents and presidents of
their local union, and one former employee who served at the
time of retirement as a Deputy Chief Patrol Agent. The current
employees are here today under subpoena, though both agents
were willing to come on their own as well. I issued these
subpoenas as Chairman of this Subcommittee in response to
concerns against these agents of possible retaliation by the
INS. Mark Hall has, within the past 2 months, been issued two
proposals of punishment for speaking to the media without
permission. The first proposal is for a 90-day suspension
without pay; the second is for a 1-year demotion following the
90-day suspension.
I have fought, Senator Collins has fought, this
Subcommittee and this Full Committee have fought for decades to
protect the rights of whistleblowers in our Federal Government.
I am very disturbed by what I have heard about this matter to
date. I have asked the INS to provide this Subcommittee with
all documents relating to Mark Hall's personnel actions over
the last 2 months, and the Subcommittee staff has been directed
to review them. We received some of the requested documents
this morning and have been told that the rest will be
forthcoming, and we expect nothing less. Of course, if there is
any delay or resistance to turning over the documents, we will
issue a subpoena for them.
It is not easy for career employees dedicated to their jobs
and their agencies to come forward and to tell the American
people about serious problems in their programs. It is hard
enough to swim against the tide without being punished for it
financially and professionally. We will be reviewing these
recent actions very closely. We will not tolerate any form or
degree of retaliation for appropriately blowing the whistle on
mismanagement.
Now, I am not going to take more of today's hearing to get
the details of this personnel action, because the issue that we
have before us is so important. But I will keep the
Subcommittee involved and informed in overseeing developments
in these personnel matters until I am satisfied that these
employees are treated fairly and that these agents have not
been subject to any inappropriate or retaliatory action by
their employers.
Now I would like to welcome our first panel of witnesses
this morning. We are pleased to have Michael Pearson, Executive
Associate Commissioner of Field Operations of the U.S.
Immigration and Naturalization Service, and he is accompanied
by the Chief of the U.S. Border Patrol, Gustavo DeLaVina. Am I
pronouncing your name correctly?
Mr. DeLaVina. That is correct.
Senator Levin. Gentlemen, we thank you for being here. We
look forward to your testimony. Pursuant to Rule 6, all
witnesses who testify before this Subcommittee are required to
be sworn, and at this time, then, I would ask the witnesses to
please stand and raise your right hand. Do you swear that the
testimony that you will give before this Subcommittee will be
the truth, the whole truth, and nothing but the truth, so help
you, God?
Mr. Pearson. I do.
Mr. DeLaVina. I do.
Senator Levin. We will be using a timing system today.
Approximately 1 minute before the red light comes on, you will
see the light change from green to yellow, which will then give
you an opportunity to conclude your remarks. Your written
testimony will be printed in the record in its entirety, but we
would ask that you attempt to limit your oral testimony to 10
minutes. Again, we thank you both, and, Mr. Pearson, you may
proceed.
TESTIMONY OF MICHAEL A. PEARSON,\1\ EXECUTIVE ASSOCIATE
COMMISSIONER FOR FIELD OPERATIONS, U.S. IMMIGRATION AND
NATURALIZATION SERVICE; ACCOMPANIED BY GUSTAVO DELAVINA, CHIEF,
U.S. BORDER PATROL
Mr. Pearson. Mr. Chairman, Senator Collins, I am pleased to
have the opportunity to talk to you today about the Immigration
and Naturalization Service's role in processing aliens arrested
for illegal entry into the United States between ports of
entry. I am also pleased to be accompanied today by Gus
DeLaVina, Chief of the U.S. Border Patrol. The INS is charged
with both facilitating legal immigration and enforcing the
Nation's laws to prevent illegal immigration. The horrific
events of September 11 have underscored the far-reaching
implications of this mission and the challenges the agency
faces in carrying it out.
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\1\ The prepared statement of Mr. Pearson appears in the Appendix
on page 49.
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Nowhere are the challenges greater than along our land
borders. Our border management strategy aims to facilitate the
flow of legal immigration while preventing the illegal entry of
people and contraband. Responsibility for carrying out this
strategy is shared by the Border Patrol and the Inspections
program. Immigration Inspectors are assigned to the ports of
entry and are charged with facilitating lawful entry and
preventing unlawful entry. Border Patrol agents are charged
primarily with detecting and preventing the unlawful entry
across our land borders between ports of entry.
The Border Patrol is responsible for patrolling 8,000 miles
of border, which includes 2,000 miles of the Southwest Border,
4,000 miles of the Northern Border and 2,000 miles of coastal
area. In 1994, as threat and activity levels grew along the
Southwest Border, the Border Patrol implemented a four-phase
strategy to deter, detect and apprehend illegal entrants,
smugglers and contraband. This strategy involves forward
deployment of personnel, equipment and technology along the
Southwest Border in phases one through three, and then along
the Northern Border, Pacific and Gulf Coasts in phase four.
The strategy is currently in phase two, concentrating
resources primarily in the area of highest illegal activity,
the Southwest Border. We are experiencing a decline in
apprehensions along the Southwest Border. Apprehensions for
fiscal year 2001 show a 25-percent decline when compared to the
same period the previous year. This decline is due in part to
the success of our Border Enforcement Strategy. Measures of
success along the Southwest Border over the last year include
the arrest of 1.2 million aliens, almost 11,000 of whom were
identified as criminal aliens, the seizure of 1.1 million
pounds of marijuana, and the seizure of over 16,000 pounds of
cocaine.
Along the Northern Border, in fiscal year 2000, the Border
Patrol arrested 12,108 undocumented aliens and seized over
4,900 pounds of marijuana--57 percent of those arrested along
the Northern Border initially entered through the Southwest
Border. In fiscal year 2001, 12,338 undocumented aliens were
arrested along the Northern Border; 60 percent of those were
Mexican nationals and 20 percent were Canadian nationals. Most
of those were voluntarily returned to their country of origin--
61 percent of the Northern Border apprehensions enter initially
through the Southwest Border. Also in fiscal year 2001, 13,000
aliens were arrested along the coastal areas.
The majority of illegal alien crossings and narcotic
trafficking continues to occur along the Southwest Border.
However, we know that there is a threat along the Northern
Border and coastal areas, as well, and continue to reevaluate
our enforcement strategies. In the last 3 years, we have
increased the number of Border Patrol agents along our Northern
and Coastal Sectors by 25 percent. Border Patrol agents
assigned to the Northern Border are experienced. We have not
assigned the newly-hired trainees to the Northern Border.
Additionally, we plan on increasing the number of Border Patrol
agents in our Northern Border this fiscal year, consistent with
funding for fiscal year 2002 and the supplemental.
Now I would like to discuss the process by which Border
Patrol agents arrest aliens who enter the United States
illegally. Upon arresting an alien, the alien is charged under
either Section 212 or Section 237 of the Immigration and
Nationality Act. Aliens who have entered the United States
without inspection and arriving aliens are charged under
Section 212, which describes the grounds for inadmissibility,
while others may be subject to Section 237, which describes the
grounds for deportability. The alien is either placed in
removal proceedings or allowed to voluntarily return to his or
her own country.
Border Patrol agents use the ENFORCE and IDENT computer
systems for processing aliens. ENFORCE is a case management
tracking system, and IDENT is a biometric, recidivist and
lookout database. ENFORCE and IDENT are INS-wide programs that
standardize the collection of data and generate INS forms used
in the administrative or criminal processing of aliens for
immigration-related violations. Within the Border Patrol, IDENT
is deployed to all sectors. With the exception of two sectors,
it is integrated with the ENFORCE system. ENFORCE will be
deployed to Houlton, Maine, and Swanton, Vermont sectors this
fiscal year.
Prior to determining the disposition of the alien, the
alien's name and other identifying information are checked
through ENFORCE and IDENT, in addition to various systems which
may include, but are not limited to, the Central Index System,
the National Crime Information Center and the Deportable Alien
Control System. Based on the results of the criminal and
administrative record checks I just described, the Border
Patrol agent will determine the most effective and appropriate
course of action. A supervisory Border Patrol agent then
approves this determination.
Generally there are three possible courses of action:
Voluntary departure; voluntary return; and issuing a warrant of
arrest or notice to appear. Once the Border Patrol decides to
proceed with the administrative or criminal processing of an
alien, the detention process begins. There are three reasons
INS detains an alien: Risk of flight; risk of danger to the
community; and requirements of law, such as mandatory detention
of certain aliens.
Once charged, those aliens detained by the INS are either
in proceedings before an immigration judge to determine whether
or not they are eligible to remain in the United States, or
have final orders and are awaiting removal from the United
States. If there is no significant risk of flight or danger to
the community, an alien can also be paroled into the community,
released on bond, or released on his or her own recognizance.
Availability of detention space plays an important role in
deciding whether or not to detain the alien.
The most common outcome of the removal proceeding is a
final order of removal. In such instances, the immigration
judge determines that an individual is ineligible for legal
admission into the United States and must face removal. During
the removal hearing process, an alien may be granted relief
and/or asylum, may be permitted to withdraw his or her
application for admission, or the case may be terminated
outright if it is determined that the removal charge is not
sustainable or evidence comes to light that the person is
lawfully present. An alien who is then ordered removed may
pursue an appeal of the immigration judge's decision.
The time it takes to proceed through the appellate process
can be significant, and often places a burden on INS to provide
long-term detention. Another avenue to effect removal is to
reinstate a prior final order of removal. When an alien
previously removed from the United States reenters illegally,
Section 241(A)(5) provides for the reinstatement of the removal
order.
As you can see, the INS has established standardized
procedures for processing persons arrested for illegal entry
into the United States. We believe that these procedures allow
us to remove these individuals as rapidly as possible within
available resources, while meeting our statutory requirements
and protecting the legal rights of those arrested. We are
willing to work with Members of Congress on any proposal you
may have for improving these procedures. This concludes my
formal statement. I would like to thank the Subcommittee for
the opportunity to appear. I look forward to your questions.
Senator Levin. Mr. DeLaVina.
Mr. DeLaVina. I have no oral statement, sir.
Senator Levin. Thank you. Reading the testimony of the
senior agents and the former deputy Border Patrol chief, who
will be testifying after you, Mr. Pearson, there is a very high
degree of concern about INS practices with regard to illegal
aliens who are arrested coming across the border outside of
ports of entry. Now, they will testify that other than
Canadians and Mexicans who are almost always returned to their
own country, most of the persons who are arrested are released
into this country on their own recognizance. Thousands never
return for their hearing, and no one attempts to seek out and
arrest people who fail to show up for their hearing.
And that is why one of the agents will testify that, as an
example, when he recently caught a number of illegal aliens
trying to walk through a railroad tunnel between Windsor and
Detroit, when he shined his flashlight on them, they ``simply
continued to the exit and surrendered to the waiting agents,''
because they knew that a person stands an excellent chance of
staying in the United States when he or she crosses the border
illegally, outside of a port of entry. I would like to go
through some of the data with you now.
You have said in your testimony that about 12,300 persons
were arrested--this is on page three, and you also gave it in
your oral statement--that about 12,300 persons were arrested
for illegal entry on the Northern Border in 2001. Now, most of
these, according to INS data, about 8,000 or two-thirds of
those arrested, returned voluntarily. What I am interested in
is talking about the 4,400 who did not return voluntarily.
These are the people arrested for illegal entry just on the
Northern Border alone--about 4,400 in 2001. So I want to ask
you questions about that group of people, that 4,400 people.
They were given a notice to appear at a removal hearing.
That hearing takes months, frequently, before it takes place,
and the INS has to make a decision about these people pending
that removal hearing, whether to detain them, whether to
release them on bond or whether to release them on their own
recognizance. Do you keep statistics about those 4,400 people
that you told us about, as to how many were detained pending
their hearing, how many were released on bond, and how many
were released on their own recognizance?
Mr. Pearson. Senator, I do not have statistics on those
4,400. I do, however, have the statistics on the Detroit
Sector.
Senator Levin. All right. Well, I will get to the Detroit
Sector in just one moment, but we have asked for those
statistics now, and are you going to supply those? Do you keep
them?
Mr. Pearson. The people who do our stats for us, who look
at the data in the computers and analyze them and provide us
reports, are working on your request right now, but I do not
have that with me.
Senator Levin. But that is not something that you publish
in your annual reports?
Mr. Pearson. I do not believe so.
Senator Levin. Now, of those released on their own
recognizance, just based on a promise to show up, about how
many actually showed up for a hearing?
Mr. Pearson. According to the graphs provided by the
Executive Office for Immigration Review, that is the court
system that handles these, about 80 percent show up. They show,
in 2001, 20-21 percent did not show up.
Senator Levin. Are you including those folks who are given
notices to appear, for instance, who do not live up to the
conditions of their visa?
Mr. Pearson. I am talking about what comes directly off of
their charts on all who appear in the EOIR system.
Senator Levin. Which includes all the notices to appear; is
that correct?
Mr. Pearson. Yes, Senator.
Senator Levin. I'm just talking about the people who are
arrested by the Border Patrol.
Mr. Pearson. I do not have that data.
Senator Levin. Do you keep that data?
Mr. Pearson. I do not know. We have asked our statistics
people to see what they could cull out and provide that.
Senator Levin. You do not provide that, though, in your
annual report, do you?
Mr. Pearson. Not that I recall.
Senator Levin. So that you do not know and you do not keep
track of, yet, the people who are arrested by the Border
Patrol, who are released on their own recognizance, who do not
show up for their hearings. You do not have that today, and as
far as you know, you do not have that in your files; is that
correct?
Mr. Pearson. Senator, I do not have the answer to that
question. I do not have the data today.
Senator Levin. All right. I find that disturbing, to put it
mildly, that we release thousands of people on their own
recognizance who have been arrested by the Border Patrol,
perhaps half arrested in the process of actually seeking to
enter this country illegally. We do not know how many of those
do not show up for a hearing. Now, we are going to hear
testimony of agents that will indicate that a large percentage
of the people who are arrested, released by the Border Patrol,
released on their own recognizance, do not show up. We will
come up with that statistic on our own, but we believe from the
agents in the field that 85 percent of the people, again,
arrested by the Border Patrol, which means not at a normal port
of entry, who are released on their own recognizance, do not
show up for their hearing. So we are going to leave that figure
out there, because you do not have a better one.
Now, let's go through the Detroit figure together.\1\ Do
you have the actual figures for the Detroit Sector? I would
rather have your actual figures than our estimates. The two top
numbers there are your figures, 2,106 arrested by the Border
Patrol and 773 issued notice to appear. So we just took the
difference, which is 1,333, which we then estimated were
voluntary returns. We got that number from taking your two
numbers, 2,106 arrested by the Border Patrol, 773 issued
notices to appear, and took the difference as voluntary
returns.
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\1\ See Exhibit No. 6 which appears in the Appendix on page 79.
---------------------------------------------------------------------------
Then we looked at the 773 of those people which were issued
notices to appear, and the estimate that we have, based on the
testimony of the agents, is that about 116 of those, that is
the 85 percent figure, were released. That is 657, and the 116
is the difference, which would be detained or released on bond.
Those figures we are happy to have corrected by your actual
figures, if you have them. The figure that we do not have yet,
but we think it is in the area of 85 or 90 percent, again, are
the percentage of those who are released on their own
recognizance who fail to show for a hearing. You do not have
that figure, you have already told us, but maybe you can give
us then the actual figures above that. Do you want to start
with that?
Mr. Pearson. Thank you, Senator, I would. I spoke with the
Chief Patrol Agent of the Detroit Sector and got these numbers.
Your top number is correct, 2,106, 65 percent were voluntarily
returned, that is about 1,365, pretty close to what you have
there. Twenty percent of the number were either detained or
were on a very high bond. That is approximately 420. Fifteen
percent were either released on their own recognizance or a low
enough bond that they could make the bond easily. That is
approximately 315 people.
Senator Levin. And the rest?
Mr. Pearson. That accounts for 100 percent of the people.
Senator Levin. It does. OK. Give me the two numbers that
account then for the 773.
Mr. Pearson. Notices to appear, 35 percent, and that would
be pretty close.
Senator Levin. Seven hundred and seventy three were given
notices to appear, OK.
Mr. Pearson. Pretty close. My number above that is 1,365,
so whatever the mathematical difference is.
Senator Levin. So you have about 740, roughly.
Mr. Pearson. Roughly.
Senator Levin. Were given notices to appear. Now, give us
the two numbers that make that up.
Mr. Pearson. Sure, 20 percent of them were either detained
or were on a high bond. That is approximately 420 people. The
remaining 15 percent were on either their own recognizance or a
low bond, one they could make; that is 315 people.
Senator Levin. Three hundred?
Mr. Pearson. Fifteen percent, 315.
Senator Levin. So you have got a little under half then,
under your figures, who were released on their own
recognizance.
Mr. Pearson. Yes, sir.
Senator Levin. A little under half of the people who were
issued notices to appear, which is 740. So let's talk now about
those 315 people. How many of those did not show up for a
hearing?
Mr. Pearson. I do not have the answer to that.
Senator Levin. You do not keep that record?
Mr. Pearson. I do not have the answer to that.
Senator Levin. Do they keep the record in Detroit?
Mr. Pearson. The Detroit Chief was not able to provide that
to me.
Senator Levin. Don't you find that disturbing, that we
release a significant number of people on their own
recognizance, and your number is still a very significant
number of people, and that we do not even keep records of those
that do not show up? We do not know. Doesn't that trouble you?
Mr. Pearson. Senator, I do not know that we do not have the
information. I was not able to get that. I had to explain that.
I do not have the answer here today, and I do find that
troubling.
Senator Levin. We have asked for it. We cannot get it. We
hope you can produce it. But, in any event, the fact that there
are no records available that even tell us how many people who
are released on their own recognizance fail to show up for a
hearing, it seems to me, is a symptom of a very big problem. It
is a large number. We should know it and we should do something
about it. We do not know it and we are not doing much about it.
I will come back to that on my second round.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Pearson, you stated that the INS recognizes that there
is a threat along the Northern Border and coastal areas and
that you are, ``reevaluating your current enforcement
strategies to identify any gaps,'' and you also note that you
are committed to deploying additional staff to the Northern
Border now. The security of our Northern Border has long been a
concern of mine, and I have pushed for some time for increased
funding so that we can expand the agents and inspectors who are
responsible for the security of our Northern Border. Can you
tell us how many agents you feel the Northern Border needs in
order to provide appropriate security and checks?
Mr. Pearson. Senator, let me, if I may, first state that
when I said we were evaluating, that was in response to the
Border Strategy, with the four phases. As I explained, we were
in phase two, but we continually reevaluate where we are, which
is why over the last 3 years we have increased the Northern
Border and coastal by 25 percent. It is not just sticking with
that strategy. We have approximately 334 Border Patrol agents
up on the Northern Border right now. Our goal, our expectation
right now, is to increase that to roughly 1,000.
Senator Collins. How would that compare with the number of
inspectors and agents that we have along the Southern Border?
Mr. Pearson. Well, comparing it to the Border Patrol
agents, we have about 8,000 along the Southwest Border right
now. I would just ask you to remember that 97 percent, 98
percent of our apprehensions are on the Southwest Border. There
is more along the coastal area than there are along the
Northern Border, but we recognize that any Border of the United
States is a possible avenue for somebody to try to get in.
Senator Collins. Well, if you have 8,000 agents, you are
obviously going to have more apprehensions than if you have
only 340, or even 1,000.
Mr. Pearson. That is true, but the volume of crossers is
significantly higher on the Southwest Border. That is why we
had 1.7 million arrests there last year.
Senator Collins. Some of the ports of entry prior to
September 11 were actually not staffed during certain nighttime
hours, along the Northern Border. Has that problem been
remedied?
Mr. Pearson. We have a number of ports of entry that were
not 24-hour ports. They were convenience ports, ports that were
not used at night, were only used during certain times of day
because of local crossers, and we staffed it during the time
the port was open. At night, while the port was closed, we
would have other--or we would have the ability to monitor, in
some cases through camera systems or through sensors, and we
would be able to respond to that port if somebody crossed.
After the events of September 11, we have taken all our
ports of entry, with the exception of the seasonal ones, and we
have manned them 24-hours-a-day, 7-days-a-week, with two people
at a time as a minimum. Those that are seasoned ports of
entry--because there are some ports that close, just physically
cannot be used--we have two of those right now that are closed,
they are sealed. But, again, we have sensors and the ability to
respond if we have the indication that somebody has tried to
cross there.
Senator Collins. A concern that the INS inspectors have
expressed to me in some of the smaller ports of entry in
Northern and Western Maine is that at times there is only one
person on duty. It may not actually even be an INS inspector.
It may be a Customs inspector who has been deputized to act as
an INS inspector. Did I understand you to say that that
situation has been remedied now, so that there would be two
people on duty at all times?
Mr. Pearson. Yes, Senator, that is two people, 24-hours-a-
day, 7-days-a-week. But it might be two Customs, two INS, or
one INS and one Customs. That is a minimum of two.
Senator Collins. Thank you. I would now like to ask you to
respond to a series of statements and concerns raised in the
testimony of our next panel of witnesses. Does the INS have a
policy mandating that any record checks must be completed on
aliens who are apprehended?
Mr. Pearson. Senator, I have a chart I would like to show
you, if I may put this up. This chart,\1\ I think, will help
graphically show the process and answer your question. It
certainly looks cumbersome, but it is really not. If we look at
the diamond in the second row, an arrest--that the
determination of alienage and nationality is made, certainly if
it is a U.S. citizen, we have no authority over immigration
offenses for the person. But the process is to enroll the
subject into ENFORCE and IDENT. As I explained in my oral
testimony, those are the systems we use that tell us there is
an immigration issue. ENFORCE is our case management tracking
system that tells us who we have already had, who we are
looking for, that type of stuff. The IDENT system is biometric.
The advantage of biometrics, it does not matter what name the
person gives us, tells us. Once we put them in the system, we
can bring them back up to determine that we have had them in
our custody before, and we have a lookout system in there.
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\1\ See Exhibit No. 12 which appears in the Appendix on page 139.
---------------------------------------------------------------------------
The lookout system is designed to advise the agent or the
apprehending officer that there may be a problem here, either
because the person is dangerous, he has caused problems when
arrested before, as well as Federal fugitives. We have taken
the U.S. Marshals Service list of foreign-born fugitives and
put them in our system, to include their fingerprints, so that
if in the course of crossing the Border between the ports of
entry, if the Border Patrol runs into this person, we can
effect an apprehension. We have also worked with the FBI on
entering foreign-born Federal fugitives. That is the
requirement.
Then the Border Patrol agent has options--and there are a
number of reasons for this--has the options of what they are
going to do next. If they have the information, they want to
run the person through NCIC, they may be able to do so.
Ofttimes, with the Border Patrol, because they are working away
from offices, buildings, they do not have a means to do an NCIC
check on-site, but they have the opportunity to take the
individual back to a station, back to a place where they could
run NCIC or other indices checks.
Senator Collins. But, as a practical matter, isn't that a
very cumbersome process? If, in fact, you have got all these
different databases and the Border Patrol agent has to check
each one of them, does that happen?
Mr. Pearson. It certainly does happen, in many cases. But,
you recall, I had talked about ENFORCE. ENFORCE is not
completed. When it is done, it is designed to include all the
INS indices, so that there would be a single check, and the
IDENT system, we are currently working with the FBI, through
the Department of Justice, to tie the IDENT system with the
FBI's IAFIS system--that is an Integrated Automated Fingerprint
Identification System--so that when it is completed, our IDENT
system will be able to access FBI files to determine
biometrically if a person is wanted.
Senator Collins. But, right now, does the INS have a policy
mandating these record checks, particularly criminal background
checks, or is it at the discretion of the Border Patrol agent?
Mr. Pearson. The mandate is for IDENT and IAFIS, not for
anything else.
Senator Collins. Now, as I understand it, from looking at
Form I-213,\1\ and as you have just explained, there are a
number of databases. There is a central index system, a
deportable alien control system, a non-immigrant information
system, an operational activity special information system, a
student-in-school system, and the National Crime Information
Center. Do these databases interact with one another? Now, I
realize the NCIC is not maintained by the INS, but, as I
understand it, the rest are. Do they cross-reference each one,
or does the Border Patrol and the INS personnel have to
individually check each database?
---------------------------------------------------------------------------
\1\ See Exhibits No. 4 and 5 which appear in the Appendix on pages
76 and 77.
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Mr. Pearson. They do not interact automatically right now.
The ENFORCE system is designed to do that. It is not completed
yet.
Senator Collins. When do you anticipate that the ENFORCE
system will be completed, so that these Border Patrol agents
and INS agents, who are already overworked and strapped for
time, do not have to check multiple databases?
Mr. Pearson. Senator, I do not recall the timeline on that,
but I would be glad to get that information to you. I know the
DACS system should be up by the end of 2002 or in 2003. We are
working on all of this systemically.
Senator Collins. Thank you, Mr. Chairman. I see my time has
expired.
Senator Levin. Going back to IDENT and IAFIS, IDENT is not
a criminal background checking system; is that correct?
Mr. Pearson. That is correct.
Senator Levin. But the NCIC is?
Mr. Pearson. The NCIC system run by the FBI has a number of
components to it. It can have wants and warrants, which is a
criminal system that lets you know who a warrant is listed for.
The NCI Triple-I has criminal history, but NCIC also has a
number of other things in there, list of stolen vehicles, list
of missing people, list of stolen weapons, that type of stuff.
NCIC is not one master database. That also combines different
databases.
Senator Levin. And are Border Patrol agents required to run
an NCIC check on every person whom they arrest?
Mr. Pearson. No, sir, they are not required to do so.
Senator Levin. Why?
Mr. Pearson. Well, there are a couple of reasons for it;
primarily, as I talked about, a lot of times these arrests are
made out where there is no system available; they are out on
the Border. Particularly if you are going to do a voluntary
removal in the numbers we have talked about, it stops you from
bringing people back and running these checks that take a lot
of time. I would ask you to remember that with 1.6 million
arrests, or even 1.2 million for last year, these systems do
take time to run. So there is no requirement, but the Border
Patrol agent has the option, the opportunity to do so, based on
their experience.
Senator Levin. Is everybody who is released on their own
recognizance required first to have an NCIC check?
Mr. Pearson. No, sir.
Senator Levin. Why?
Mr. Pearson. For the same reason that I just talked about,
and that is we leave it up to the agent's experience to make
that determination. The requirement is to run IDENT and
ENFORCE.
Senator Levin. But that is not a criminal background check?
Mr. Pearson. That is correct.
Senator Levin. So you are releasing people on their own
recognizance without a requirement for a criminal background
check.
Mr. Pearson. There is not a requirement right now.
Senator Levin. Does that trouble you?
Mr. Pearson. The concept troubles me, Senator. When you get
out in the field, as a practical matter, when you are talking
with the over a million people we arrest, we have to rely a lot
on the individual agent's judgment and the time it takes to do
these things.
Senator Levin. Now, the huge percentage of those people are
voluntarily returned; is that correct?
Mr. Pearson. Of the 1.2 million, yes, sir.
Senator Levin. We are just talking now about the thousands
that are arrested, not voluntarily returned, then released on
their own recognizance. For those people, there is no
requirement that there be a criminal background check; is that
correct?
Mr. Pearson. Senator, that is correct, there is no
requirement. There is certainly no prohibition and the agent
can run it, but we do not have a policy that requires that.
Senator Levin. Do you know in how many cases where people
are released on their own recognizance, approximately, there is
no criminal background check?
Mr. Pearson. I do not know, Senator.
Senator Levin. Shouldn't we be troubled by it? I mean,
these are people illegally entering the country. This is not
the complicated question of how many people should we allow
into the country; these are not the complicated questions
whether people ought to be able to extend visas or not or
change visas or not, or under what circumstances should people
be granted visas; and this is not a matter of family
reunification. These are people arrested by the Border Patrol
for illegally entering the country, who are released on their
own recognizance in the country, after they are arrested, that
we do not even run a criminal background check on. I find that
incredible. We are talking about that limited group. I am not
talking about the million, most of whom are returned
voluntarily. I am talking about the thousands who, after they
are arrested--again, a significant number of whom are arrested
actually trying to enter the country by the Border Patrol, are
just released on their own recognizance without a criminal
background check, without accessing data which could tell us
whether or not they are on a watch list, for instance, or
whether they have a criminal record. I find it absurd. It is
not functional for that group of people.
I know there are a lot of complicated immigration questions
out there, but I have got to tell you this one does not strike
me as being complicated, when you arrest someone for illegally
attempting to enter the country. Now, is that going to stay
that way or are we going to change this?
Mr. Pearson. Senator, we will certainly relook this.\1\
When I said there is no requirement, it is because we do not
have a policy that says they must do that. However, before a
release is made, the agents are required to go through the
process that I had talked about in my oral testimony; determine
whether or not they are a flight risk; determine whether or not
they are a danger to community; determine whether or not it is
a mandatory detention. You are not going to do those three
unless you do some type of indices check. So they should be
done, but your direct question was is there a policy requiring
this, and there is not.
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\1\ See Dec. 20, 2001 Memorandum from Michael Pearson to INS
Regional Directors (Exhibit No. 13) which appears in the Appendix on
page 140.
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Senator Levin. We do not know in what percentage of cases
they are done?
Mr. Pearson. I do not have that.
Senator Levin. We do not know what percentage--let's put
the form up there.\1\ Is this the I-213 form?
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\1\ See Exhibit No. 4 which appears in the Appendix on page 76.
---------------------------------------------------------------------------
Mr. Pearson. I-213, yes, sir.
Senator Levin. About the fifth line or so from the bottom,
where it shows all of the information which could be accessed--
we have got record checks completed, CIS, DACS, NCIC, NIIS, and
OASIS. If those are useful, why shouldn't they all be accessed
before somebody is released on their own recognizance?
Mr. Pearson. The appropriate ones need to be checked to
determine whether they are a mandatory detention, whether they
are a flight risk or whether a danger to the community.
Senator Levin. Yet there is no requirement that they be
checked?
Mr. Pearson. There is not a requirement to do each and
every one or any one.
Senator Levin. Where people are just simply released on
their own recognizance, you do not know in what percentage of
those cases that information is accessed?
Mr. Pearson. I do not know.
Senator Levin. I think we ought to find out, we ought to
change it and there ought to be some real energy behind that
effort, because this, it seems to me, is a no-brainer. Now, why
are people released on their own recognizance? Let's get to
this point, where they are arrested for illegally entering the
country and do not voluntarily return. Why they are released on
their own recognizance is because we have a shortage of
detention space while they are awaiting their hearing, whether
it is a hearing for a removal or a hearing for asylum. Why
aren't people detained pending that hearing if they are
arrested for illegally entering the country--not at a port of
entry? These are not folks who come into an airport or go
through a bridge or tunnel. These are people who have either
been caught in the act of entering the country at some point
other than a port of entry, or are caught inside of the
country, being here illegally. Why aren't they detained pending
the hearing?
Mr. Pearson. Well, there are two primary reasons. The first
is, as you talked about--or one of the two reasons is the
detention space. As I stated earlier, last year we arrested 1.2
million people in this country. We are funded for 19,700 bed
spaces on a daily basis.
Senator Levin. Can we get back to that million figure,
though? The vast majority of those voluntarily return, so that
number is not the number we are talking about. We are talking
about the people who do not voluntarily return, who then say,
even though they are caught entering illegally here, they want
a hearing, to which they are entitled. The question is why
aren't they detained? Why do we not have enough spaces? Have we
asked for more spaces and been denied those spaces by OMB? What
is the scoop and how do we correct it?
Mr. Pearson. Within the 19,700 bed spaces, we have spaces
for those that are mandatory detention, under the INS. We also
have space for criminal aliens that are not mandatory
detentions. That leaves little space for the rest. So after the
arrest is made, a determination is made on whether or not
detention is appropriate. The second part of what I was talking
about is the determination on whether or not the person is a
flight risk or a danger to the community. If they are not,
discretion can be used to release the person, and that is how a
decision is made.
Senator Levin. Isn't everybody who is seeking to enter the
country illegally, not at a port of entry, a flight risk?
Mr. Pearson. Not necessarily.
Senator Levin. What percentage of people who seek to enter
the country illegally, not at a port of entry, who are
arrested, are not a flight risk?
Mr. Pearson. I cannot give you a percentage, but we arrest
people often who have ties to the community, have equities,
have families, have a house, and they are not considered a
flight risk.
Senator Levin. They are inside the country.
Mr. Pearson. Yes, sir, but----
Senator Levin. Let's take the narrowest group, which may be
half of the people who are arrested by the Border Patrol at the
Border.
Mr. Pearson. Senator, Detroit Sector arrested 2,100 people
last year; only 103 of those were arrested at the Border upon
entry.
Senator Levin. That is not what we were told by the Detroit
Sector, but we will get that by the other testimony. But we
have very different figures on the Detroit Sector than you do,
but whatever that figure is, why are those people not
automatically a flight risk? Whatever that number is, just for
starters, just take that narrow case, aren't they automatically
a flight risk?
Mr. Pearson. I would not say that they are automatically a
flight risk, no, sir.
Senator Levin. OK. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Pearson, one of our next witnesses will testify that,
due to a lack of funding, many aliens who are apprehended along
the Northern Border are instructed to leave the United States
within 30 days. These individuals are then released, and
according to this witness, there is no process for verifying
whether or not they actually left within the 30 days. Is that
accurate?
Mr. Pearson. That is an accurate statement. When we do the
voluntaries, the person is given a time period, either by INS
or the judge, to remove themselves, or we can do a voluntary
return under safeguards, where we keep them in custody and
physically make sure they either cross the Border or get on a
plane to return to their home country.
Senator Collins. If there is no system for checking to
ensure that the individual actually has left within 30 days, as
promised, isn't it likely that a lot of people are not leaving?
Mr. Pearson. That certainly could be the case.
Senator Collins. Are some aliens released on bond or their
own recognizance, despite the fact that the INS has not been
able to establish positive identity, nor verify the legitimacy
of the U.S. address or phone number contact information that
they provided?
Mr. Pearson. That certainly could be the case, Senator. In
order to determine flight risk or determine danger to
community, those checks should be done. As I said, we do it
under ENFORCE and IDENT, and do the biometric checks, so we can
try to make sure we know who they are.
Senator Collins. How often does someone have to be
apprehended entering the United States illegally before that
person is actually prosecuted?
Mr. Pearson. There is not a set magic number. Each U.S.
Attorney determines their own threshold for prosecution.
Senator Collins. Would you be surprised to learn that we
have been told by some Border Agents and INS inspectors that an
individual could cross illegally and be apprehended a dozen
times before there was any prosecution?
Mr. Pearson. That would not surprise me. I have spoken with
U.S. Attorneys who have told me, that their threshold is higher
than that, and they are the ones that make the decision, before
they will take it to prosecution.
Senator Collins. What concerns me is that it seems like
this whole system lacks safeguards, lacks checks to ensure that
people really are leaving; that despite the fact that we have
an enormous number of people who have been arrested, that we
really do not have a very good system for checking records, for
verifying that they are who they say they are, for ensuring
that they do leave, for ensuring that they do show up for
hearings. It just strikes me that the whole system is so porous
and lacks so many safeguards that it is a serious threat to our
national security.
I think it goes beyond the most egregious case that this
hearing is focusing on, because it seems to me that the whole
system is just too loose.
Mr. Pearson. Senator, the only ways we have right now to
make sure a person leaves is if we check with the country that
they went to to make sure they are back, and we do that on
occasion; if we get the automated I-94 that shows they got on a
plane and left the country, or we detain them until we remove
them across the Border, and this does apply to those voluntary
removals. So we are back up to the 1.2 million. We simply do
not have the detention space to detain everybody, to make sure
that they are physically removed from the country.
Senator Collins. But if you are not doing the kinds of
checks that would help you identify those who are most at risk
for staying illegally in the United States, how are you going
to get a handle on this problem? If you are not necessarily
following up on contact information or necessarily doing a
positive identity on the person, then how are you going to get
a handle on the group that is most likely trying to enter
illegally, perhaps to cause harm to our citizens?
Mr. Pearson. Our focus is on the higher-risks. Remember, I
did not say the checks were not done. I said there is not a
requirement to do them. But we do check and we do follow up on
the higher-level categories, those that are aggravated felons,
those where there is a want and warrant, those that are
criminal aliens, but when you get below that level, it is a
resource issue. It is truly a resource issue.
Senator Collins. Well, let me talk to you about one
category that has come to our attention lately as a result of
the attacks on our Nation. The previous administration's INS
commissioner said that catching individuals who overstay the
terms of their visas was a very low priority of the INS, and
that she thought it should remain a low priority. Well, we know
now that a number of the 19 terrorists responsible for the
attacks on September 11 reportedly overstayed their visas, and,
by law, they could have been deported. What is the current
administration's view on visa violations, overstays, and what
priority is now being given to pursuing individuals who
overstay their visas?
Mr. Pearson. Well, let me start by saying things have
changed since September 11. Your quote of President Bush was
exactly accurate. By our estimates, there are approximately
between 5 and 6 million people in this country illegally--you
had said 8 million in your opening statement--40 percent of
whom are overstays. Of that group, the 5 to 6 million, our
first priority right now is working with the Federal Bureau of
Investigation, and we are working with the CIA, to see who are
we looking for that might be involved in terrorist incidents.
So that is our highest priority.
Now, the Border Patrol is on the Border, trying to secure
the Border. On the interior, we have investigators looking for
these people, but we have fewer than 2,000 criminal
investigators in INS, and over half of those right now are
working full-time, dedicated on the terrorist mission. When you
then look at who else we have in this country, our priorities
are aggravated felons, the criminal aliens, that type of stuff.
So it is not that an overstay is not important--they are--but
when you put it on a priority basis, if we do not have
information of terrorist connection, terrorist ties, a suspect,
or they are not a criminal alien or they are not an aggravated
felon or they are not a mandatory detention, they do not raise
to the level of where we can put many resources right now. It
is certainly not that they are not important.
Senator Collins. Well, I think a lot of that also goes to
the granting of visas in the first place and making sure that
we have better sharing of information among law enforcement and
intelligence agencies, so that we could stop some of these
individuals from coming here in the first place. Just one final
comment: The 8 million figure that I used as a U.S. census
figure, I would suggest to you that we do not know how many
illegal aliens we have in the United States, given how porous
the system seems to be.
Thank you, Mr. Chairman.
Mr. Pearson. Senator, if I may, we would agree with you. We
do not know, but we have worked with the Census Bureau on where
they got their number, and we are confident that ours is a much
better number.
Senator Levin. Thank you. Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thank you, Mr. Chairman, and to our
witnesses this morning, welcome. I regrettably missed your
presentation. I have listened to some of the questions and some
of your responses, both here and in the anteroom outside. You
were talking there at the end with Senator Collins about
numbers. I think she mentioned the Census Bureau number of 8
million, and that differs from your number. Can you just share
with me your number?
Mr. Pearson. Our number is somewhere between 5 and 6
million, and we do not have an exact number.
Senator Carper. Fair enough. I am just going to come right
to the nub of the issue here. What do we need to do? Not so
much what you need to do, what do we need to do here in the
Congress to help you do your job better?
Mr. Pearson. There are a number of things. The Attorney
General has been working with the administration on changes to
the law. We have been working with the Department of Justice
and will be coming to Congress, and we are working with OMB for
additional resources. We all recognize--and the purpose of this
hearing is to show that the Northern Border does not have
enough assets. We need to increase that, and it is not just
personnel. It is some of the systems we are talking about. We
do need some assistance.
Senator Carper. What kind of systems?
Mr. Pearson. ISIS, for one. These are systems where we can
have our cameras tied directly to sensors, so that if a sensor
goes off, showing movement, we can have a camera check it
immediately to determine if it is people or it is an elk or a
moose or a deer that triggered it, so we do not have to take
the limited resources we have and send them where they are not
necessary. But they will also be able to tell us when people
are crossing, either at a port of entry after it has closed or
between ports of entry, and we can track and film and tape
where these people are going, so that we can better utilize the
resources we have to go effect the apprehension.
Senator Carper. How many people are taken into custody each
year by the Border Patrol?
Mr. Pearson. Last year, it was 1.2 million. The year
before, it was 1.6 million.
Senator Carper. Do I understand that over half of them are
returned voluntarily or involuntarily to the countries of their
origin?
Mr. Pearson. The majority of them are Mexicans. In fact, 98
percent are Mexicans. About 60 percent or so are returned
voluntarily, just taken right back to the Border and turned
over to authorities.
Senator Carper. Why wouldn't that number be higher?
Mr. Pearson. Because, in a number of cases, we are running
our indices checks and we will take them into detention, either
because they are wanted, they have been in our system before,
we intend to prosecute for crossing illegally. It is those that
do not raise the threshold that, I was talking about earlier,
and we do not determine that either they are a flight risk or a
danger to the community, and they are not a mandatory detention
case, that we would effect a voluntary removal.
Senator Carper. When someone is taken into custody and
deemed to be in our country illegally and the intent is to
return them to their own country, how are they actually
returned, physically returned, to their country of origin?
Mr. Pearson. We must first go to the country that we wish
to return them to. Hopefully, it is their country of
citizenship, but that is not always the case. We will work with
that country to get travel orders. Now, this is assuming that
any appeal, which is a ruling made by the immigration judge,
will have a final order, either there is no appeal or, if there
is an appeal, that is finished, then we will work with the
country to get travel documents for the individual, and we will
physically, if it is overseas, we will put them on a plane,
sometimes under escort, sometimes not, to remove them from this
country.
Senator Carper. That is how 60 percent of the folks who are
here illegally are returned?
Mr. Pearson. Now, the majority of these are Canadians and
Mexicans already at the border, and with the voluntary
departure, we will just take them to the border and let them
cross.
Senator Carper. Do they come back in?
Mr. Pearson. Many of them do. That is why the IDENT system
was developed. It was initially a recidivist database, so we
would know who was a repeat entry, in order to prosecute.
Senator Carper. When people come in repeatedly, do we treat
them differently than we do the first time that we detain them?
Mr. Pearson. Well, I am not sure what you mean, treat them
differently. If they have crossed often enough that they meet
the threshold for prosecution by a U.S. Attorney, we will
detain them for prosecution. If they do not meet that
threshold, we may still detain them, based on whether or not
they are a danger to the community or a mandatory detention.
Other than that, we will generally return them voluntarily.
Senator Carper. Let me just go back and see if I have these
numbers right. You say 1.2 million are----
Mr. Pearson. Were arrested by the Border Patrol last fiscal
year.
Senator Carper [continuing]. Coming in illegally, roughly
60 percent are returned.
Mr. Pearson. My recollection is about 60 percent. The Chief
here says he believes it is higher, but he does not have the
exact number, either.
Senator Carper. That leaves maybe 30 or 40 percent that
stay in this country for a longer period of time. On average,
the folks that are returned, how long do they stay in this
country?
Mr. Pearson. I cannot answer that question. Those that we
have in detention, each country is different, depending on
whether or not the individual appeals or how long it takes to
go before the appellate process and how long we will keep them
in detention.
Senator Carper. Somebody just handed you a note.
Mr. Pearson. That was to a different question, though. It
did not answer your question directly. The 60 percent figure
that I gave you is for the Northern Border, according to this
note.
Senator Carper. The folks that are detained here and
eventually returned, when they are detained here, where do we
keep them?
Mr. Pearson. There are a number of places. We have our own
detention facilities. We have nine of them nationwide. That
does not cover anywhere near all our detention space. We have a
few contract facilities, and we spend a lot of money
contracting with locals, the county sheriff, for example, and
using their detention, their bed space. That is where the
majority are kept.
Senator Carper. At any one time, any idea how much bed
space you are using?
Mr. Pearson. We are funded for 19,700 a day. So somebody
that stays with us 6 months or a year counts every day. Those
that are only here 3 or 4 days, that bed is used over again.
Senator Carper. The folks who are not staying in one of
those 19,700 beds, where are they?
Mr. Pearson. I am sorry?
Senator Carper. The folks who have come here illegally who
have not yet been returned, but who are not taking up one of
those 19,700 beds, where do they stay?
Mr. Pearson. Well, some of those, as we talked about, are
released. They are released on bond or they are released on
their own recognizance, many of whom have equities to the
community. They have families, they have a house, and they will
stay at their house.
Senator Carper. Are there often times when they do not, and
when the time comes to find them, we cannot?
Mr. Pearson. That is the case, yes, sir.
Senator Carper. What do we need to do about that? When I
say we, you and INS.
Mr. Pearson. Yes, sir, I understand. The primary reason
that we do not detain somebody is because of lack of detention
space. If we know they are a mandatory detention, if we know
they are a flight risk, if we know they are a danger to the
community, we will do everything we can to detain them. Even if
the Sector or the District does not have the space, we will go
up to the Region and create some space somewhere. Ofttimes we
have moved people five or six States away, just so we have a
detention space. But those that do not meet the threshold,
meaning they are not a mandatory detention, they are not a
flight risk, they are not a danger to the community that we can
establish, they would be released, either on bond or on their
own recognizance. We require or ask that they give us an
address where we can reach them, but there is nothing that
requires them to stay at that address.
Senator Carper. Mr. Chairman, thanks. Again, to our
witnesses, thank you very much for your testimony and for your
responses to our questions.
Senator Levin. Thank you, Senator Carper.
If there is a danger to the community, that is your No. 1
priority, and yet there is no requirement that you even do a
criminal background check; is that correct?
Mr. Pearson. There is no requirement that we do the
criminal background check, that is correct, Senator.
Senator Levin. You do not know in what percentage of the
cases where people are released on their own recognizance that
there is a criminal background check?
Mr. Pearson. Senator, I do not have that data. No, I do not
know.
Senator Levin. Or you do not know if that data is even
kept.
Mr. Pearson. That is correct.
Senator Levin. That is not what I would call a priority, I
have got to tell you. To say it is a priority, that people who
are a danger to the community be detained, and yet there is no
requirement that there be a criminal background check, you do
not keep a record as to whether or not criminal background
checks are kept on what percentage of the people who are
released. It is not--in my definition of priority--coming close
to being a priority. So it ought to be.
I think that a criminal background check ought to be done
on anybody before they are released on their own recognizance.
I am amazed that that is not a requirement. Let me ask Mr.
DeLaVina, why don't we do a criminal background check on
everybody before they are released on their own recognizance?
Mr. DeLaVina. Well, sir, the biggest safeguard for the
Border Patrol, and I concur, the system is not perfect, the
biggest safeguard----
Senator Levin. The system is what?
Mr. DeLaVina [continuing]. For us is the men and women that
we are sending up North. These are seasoned agents; they are
experienced. Even though it is not a requirement, I feel very
confident that every Agent that is up North, if they come into
contact with a person that they feel is a criminal or has some
extenuating circumstances, they are going to run the checks,
they are going to do everything they possibly can. The problem
is a matter of funding or detention space.
Senator Levin. How many spaces do you need? How many have
you asked for from OMB, for instance, this year?
Mr. DeLaVina. I would have to defer to Mr. Pearson on that.
Senator Levin. Do you know, Mr. Pearson?
Mr. Pearson. I do not recall the number precisely this
year, but I will certainly get it to you.
Senator Levin. Did you get what you asked for?
Mr. Pearson. No, sir.
Senator Levin. Can you tell us what percentage less than
you asked for, you got?
Mr. Pearson. I do not recall the number, but I will be glad
to get that information to you.
Senator Levin. A significant number?
Mr. Pearson. Senator, I am not playing a game. I do not
know how to define significant here. I do not recall the
number.
Senator Levin. Going back now to the information systems
which are available to you, is it--is that pronounced IBIS?
Mr. Pearson. We call it IBIS. That is the Inter-Agency
Border Information System. There is also ISIS; that is the one
I was talking about with the camera systems tied to the
sensors.
Senator Levin. On the IBIS system, that system is a system
which has a lot of very significant information that is
available to you; is that correct?
Mr. Pearson. That is correct.
Senator Levin. That is accessed at the ports of entry?
Mr. Pearson. At the ports of entry, yes, Senator.
Senator Levin. What does that tell us?
Mr. Pearson. Well, that ties into the systems, that we can
do an NCIC check, we can do a NIIS check. We can look for
terrorists. We can look for wants. That is all tied into one
system. We do not have that available for the Border Patrol
yet.
Senator Levin. Well, before someone is released by a Border
Patrol agent, can't they access the IBIS system?
Mr. Pearson. In most parts of the country, they could take
the individual to a port of entry and ask that it be accessed,
yes, sir.
Senator Levin. Before we release someone on their own
recognizance, why don't we do that?
Mr. Pearson. Senator, I cannot answer the question this
time any better than I could the other of couple times you
asked.
Senator Levin. I did not ask that question before. This is
the first time I have asked the question as to why we do not
require, before someone is released on their own recognizance,
who has attempted to enter the country illegally, we do not
access the system which can tell us whether or not that person
has a criminal record, whether they are on a terrorist watch
list, and all the other information that somebody at a port of
entry does routinely? Why don't we require that for someone who
enters not at a port of entry?
Mr. Pearson. Senator, I understand. We do not require it
right now. We will relook at the policy.
Senator Levin. Mr. DeLaVina, why don't we do that?
Mr. DeLaVina. Well, sir, I think that is one of the
problems that we need to take a look at.
Senator Levin. Part of the IBIS system, I think, is a
National Automated Immigration Lookout System; is that correct?
That is maintained by the INS?
Mr. Pearson. Yes, Mr. Chairman.
Senator Levin. And that is called NAILS, too?
Mr. Pearson. NAILS, yes.
Senator Levin. NAILS contains certain information on
persons who may be removable from the United States for
membership in terrorist organizations or other illegal
activity. That information comes from classified State
Department database or other sources. It is accessed, again,
through IBIS. But you have already now told us you do not
access IBIS, the Border Patrol does not do it; they do not take
folks to the port of entry to do it. You are going to see if
that should be changed. I will tell you it should be.
Tell us what you need to do to change it. It is not a
change in law, that much I know. It is either resources or
policy. Whatever it is, you tell us if we need to do anything,
because it is absurd that people who try to enter not at a port
of entry are not checked the same way that someone who enters
at a port of entry is checked. I mean, it is counterintuitive
to me. But, putting that aside, let's just now look at your own
system. This is an INS system now. This is the National
Automated Information Look System. Are people who are arrested
by the Border Patrol, not at ports of entry, checked against
that system?
Mr. Pearson. That system is through IBIS, and not all
Border Patrol are close enough to a port of entry to go use
IBIS.
Mr. DeLaVina. That is correct.
Senator Levin. But I am not talking IBIS now. It is part of
IBIS. It is entered into IBIS, but this is the INS system,
NAILS, is that correct?
Mr. Pearson. It is; yes, sir.
Senator Levin. This is an INS system. This is not the joint
system, the combined system. This is just the INS' own system
that you do not access for these folks who are arrested, other
than at points of entry. Try that one on me.
Mr. DeLaVina. I am looking at the box here. Basically, we
use the IDENT, and we use the ENFORCE.
Senator Levin. I know that, but why don't you use your own
NAILS system?
Mr. Pearson. Senator, I do not know where NAILS is
accessible. I do know that it is through IBIS. Again, I can
find that information. I will get back to you.
Senator Levin. OK. Now, the State Department maintains a
system called Consular Lookout and Support System, that is
called CLASS. It contains the names and biographical data on
known and suspected terrorists. Consular officials are required
by law to check the visa lookout system before they issue a
visa in another country. INS agents are not required to check
that system before someone is released on recognizance; is that
correct?
Mr. Pearson. It was not a matter of ``not required;'' we
did not have availability for the system everywhere. We had
been working with the State Department post-September 11 to be
able to get that at our ports of entry.
Senator Levin. What about for Border Patrol folks between
ports of entry? You are shaking your head, Mr. DeLaVina.
Mr. DeLaVina. We do not have it.
Senator Levin. You do not have it. Are you going to get it?
Mr. Pearson. Senator, we fully intend to. We want all of
this to be integrated. We are just not there yet.
Senator Levin. But it is in process, some of this, all of
it?
Mr. Pearson. For the CLASS to be at our ports of entry as
the first step, yes, that is in process.
Senator Levin. But is it also a step for someone who is
arrested other than at a port of entry, before they are
released on their own recognizance, that this CLASS system must
be--I do not want to call it a class system--this CLASS
procedure be accessed? Is that in process?
Mr. Pearson. Our intent is for ENFORCE to be able to tie
all of those together so that a Border Patrol agent or an
inspector can check one source and get all the information.
Senator Levin. OK. That is in process?
Mr. Pearson. Yes, sir.
Senator Levin. When will that be done?
Mr. Pearson. I do not have a date on that. I explained
earlier, I can give you the timelines for ENFORCE. I do not
know that we have talked about CLASS other than the ports of
entry, but certainly it is the next logical step.
Senator Levin. Finally, I would like to put another chart
on here.\1\ This is the current system. This is a notice to
appear. We have whited over the name of the respondent. This is
a real case. This person here, where it says number, street,
city, State and ZIP code, do you see that, under the redacted?
---------------------------------------------------------------------------
\1\ See Exhibit No. 2 which appears in the Appendix on page 74.
---------------------------------------------------------------------------
Mr. Pearson. Yes, Senator, I see that.
Senator Levin. That person failed to provide any number,
just failed to provide an address. He is deportable for the
reasons below. He is not a citizen. He is a native of
Bangladesh. He is admitted to New York on April 16 as a
visitor, and it turns out that it was fraudulent, and now he is
arrested. This guy is in our hands. We have got him. He
procured his admission by willful misrepresentation, because he
used the passport of somebody else. He is arrested by the
Border Patrol, we have got him.
What is done? He is given a piece of paper. He is told to
appear before a judge, and the time is to be set, and how is he
supposed to be notified? This is a real notice to appear. How
is this guy going to be notified? He is going to be notified at
the address provided. He did not provide an address. He is
given a piece of paper. He entered illegally, used a false
passport. He is now arrested by a Border Patrol agent. He is
given a piece of paper, saying ``you will be notified of a time
to appear'' for a notice to remove you. Here is a guy sneaking
in here illegally, but he is given a piece of paper, saying,
``Here, we will notify you when the date and time of a removal
hearing is, at the address above,'' and there is not even an
address above. What in Heaven's name is going on?
How is it possible, with all these other gaps and holes,
that this is a guy who is arrested by Border Patrol, who
previously had used false documents, he is released on his own
recognizance? Are you amazed at this or not? Is this so routine
that you are just not even troubled by it, Mr. Pearson? I am
trying to see if we cannot get you as involved in the cure of
this problem as I think we are and I think the American people
are, and maybe you are, but I have got to get a feeling, and I
have not gotten it yet, that there is some real energy here.
Let's start with this: Does that amaze you?
Mr. Pearson. Absolutely.
Senator Levin. It does.
Mr. Pearson. It amazed the Chief Patrol Agent when I spoke
with him about it, too. This clearly should not have happened.
Senator Levin. Do you think this is real rare?
Mr. Pearson. I do not know how rare it is. I certainly hope
it is real rare.
Senator Levin. I wish it were. We are going to hear from
some Border Patrol agents on that subject.
Senator Collins.
Senator Collins. I have no further questions. Thank you.
Senator Levin. We thank you both for appearing, and we look
forward to the information that you have indicated will be
forthcoming, and, Mr. Pearson, I do not know whether you are
involved in that personnel issue in any way or know anything
about it, but if you do, then you have heard from me of our
concern. If you are not, I know you will pass along to whomever
would be responsible for looking into that matter what this
concern is, so we can take care of that at another time, in
another place. We are appreciative of your being here.
Mr. Pearson. Well, having said that, may I respond to that,
please?
Senator Levin. Of course.
Mr. Pearson. I am basically aware of that case, but not of
all the specifications and charges. I do know, and I do
believe, that this is not any retribution or retaliation for
appearing before this Committee.
Senator Levin. No, that is not the question. The question
is for making a statement to the media and for talking to us,
either/or. I am interested as to whether or not this is
happening because somebody is blowing the whistle. That is the
question here. This Committee has been involved in protecting
whistleblowers. In any event, I do not want to----
Mr. Pearson. I am very much involved in protecting
whistleblowers. Mr. Hall and I have testified before, and he
said the same things, his concern with the Northern Border, and
he was right in that. So I will certainly--I will not get too
close to this, because there is always the potential that it
could come up to me on appeal. So I cannot get too close to
this while the Chief and the Regional Director are making their
decision on any proposal.
Senator Levin. I thought I was concluded, but I just
remember there was one question. Do you happen to have your own
statistical yearbook for the year 2000, by any chance, with
you?
Mr. Pearson. INS Statistical Yearbook for FY 2000 has not
been published.
Senator Levin. You testified--used a figure that 21 percent
failed to appear, at a certain point in your testimony.
Mr. Pearson. That was EOIR's, their figures show 21
percent.
Senator Levin. The figure for the non-detained aliens, in
that same book, by the way, is 37 percent, not 21 percent; 21
percent are overall failures to appear. That could be for
either people who are not detained or for other reasons. So I
think you should correct the record on that. But even the 37
percent, by the way, includes a lot of people other than those
arrested by the Border Patrol, and the numbers which I used
this morning were the estimates relative to Border Patrol
arrests, and that number, even 37 percent, is way low, non-
appearance, for people who have been issued notices to appear,
because it includes a whole host of other people, including
people who have overextended their visas and things like that,
who have not been arrested by the Border Patrol.
So you and I have had a little difference on numbers here
this morning, but if you will go back and take a look at your
testimony, you may want to correct any impression that you left
relative to that 21 percent, and tell us for the record, if you
would, whether that 37 percent number, in fact, is the more
accurate number for all people who are not detained, and then,
if you would, get us the statistic for the percentage of people
released on their own recognizance who do not appear. That is
the key, vital figure that we are waiting for. We believe it is
around 80 percent. Whatever the percent is, we await that
statistic.
Mr. Pearson. I will be glad to relook at that, Senator.
Senator Levin. Thank you. Thank you, both. If we could now
call our second panel of witnesses: Mark Hall, Keith Olson, and
Eugene Davis. Our second panel of witnesses this morning is
comprised of two current and one retired Agents of the Border
Patrol. Mark Hall is appearing before us this morning as
President of Local 2499 of the National Border Patrol Council.
He is also a senior Border Patrol agent in Detroit. He works
out of the Detroit Sector of the Border Patrol. Keith Olson is
appearing before us this morning as President of Local 2913 of
the National Border Patrol Council. Mr. Olson is also a senior
Border Patrol agent, residing in Bellingham, Washington, and he
works out of the Blaine Sector of the Border Patrol there.
Eugene Davis is a retired Deputy Chief Patrol Agent of the U.S.
Border Patrol in Blaine, Washington, and we are pleased to have
all of you with us this morning. We look forward to your
perspective on the status of INS policy as it relates to
persons arrested for trying to enter the United States
illegally.
As I indicated with our first panel, all witnesses who
testify before the Subcommittee are required to be sworn, and
at this time I would ask the witnesses to please stand and
raise your right hands. Do you swear that the testimony you
will give before this Subcommittee will be the truth, the whole
truth and nothing but the truth, so help you, God?
Mr. Hall. I do.
Mr. Olson. I do.
Mr. Davis. I do.
Senator Levin. We will have a timing system again today. It
is a little black box in front of you. One minute before the
red light comes on, you will see the light change from green to
yellow, which will give you an opportunity then to conclude
your remark, and your written testimony will be printed in the
record in its entirety. So we would ask that you limit your
oral testimony for up to 10 minutes.
Mr. Hall, I think we will start with you.
TESTIMONY OF MARK P. HALL,\1\ PRESIDENT, LOCAL 2499, NATIONAL
BORDER PATROL COUNCIL, AND SENIOR BORDER PATROL AGENT, U.S.
BORDER PATROL, DETROIT, MICHIGAN
Mr. Hall. Good morning, Mr. Chairman, Members of the
Subcommittee. My name is Mark Hall. I am the President of Local
2499 of the Border Patrol Council in Detroit. Our local
represents Border Patrol agents who patrol the U.S.-Canadian
Border in Michigan and Ohio. I have had the honor to proudly
serve my country as a Border Patrol agent for over 17 years,
the last 14 of them assigned to Detroit, Michigan. I want to
thank you for the opportunity to testify on how the INS
processes persons arrested for illegal entry into the United
States, outside of ports of entry.
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\1\ The prepared statement of Mr. Hall appears in the Appendix on
page 61.
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In the aftermath of the tragic attacks that occurred on
September 11, there is a compelling need to re-examine how the
INS processes aliens arrested entering the United States
illegally. Unlike the U.S.-Mexico Border, where the
overwhelming majority of illegal aliens who are apprehended are
citizens of a contiguous country and can be returned there
expeditiously, most of the illegal aliens apprehended on the
Northern Border must be held for several days in order to
secure the necessary travel documents and/or make arrangements
to return them to their country of origin. In most of these
locations, including Michigan, the INS does not have a facility
to house such aliens, and must rely on available jail space
with local agencies, which charge a high price for this space.
Therefore, aliens are often released into local communities
on their recognizance in an effort by INS to save money and
remain within the budget. This practice was commonplace before
September 11 and has not changed since. Although it is
expensive to detain and remove illegal aliens from our country,
it is far more costly to release potential terrorists into our
communities. Representatives of this union have often pleaded
with local INS and Border Patrol management to reconsider this
catch-and-release philosophy, but have been ignored. This
policy, combined with a decided lack of attention to our
Northern Border, has been an inviting beacon for illegal entry
into our country.
The Canadian government allows citizens of more than 50
countries to enter Canada without a visa. The United States
requires visas for citizens of more than 20 of the 50 countries
for which Canada has waived the visa requirements. The Criminal
Intelligence Service of Canada stated in a 1998 annual report
that many illegal aliens use Canada as a transit point on their
way to the United States. In many cases, their entry is
facilitated by the fact that they do not need a visa to enter
Canada.
Aliens attempting illegal entry into the United States from
Canada have two basic choices when crossing our Border. They
can either try to fraudulently entry through a port of entry or
attempt to enter illegally between the ports of entry. The
alien who attempts illegal entry by fraud or deceit at a port
of entry will be interviewed by a U.S. immigration inspector or
a U.S. Customs inspector. If caught, they can be held in the
United States on criminal charges or refused entry and sent
back to Canada. If they are sent back to Canada, they face
possible removal to their country by Canadian authorities.
The other, less-risky option available to the alien is to
cross nearly the 4,000 miles of sparsely-protected U.S.-
Canadian Border between the ports of entry. An alien risks
little chance of apprehension by one of the 334 Patrol Agents
who patrol the Border with Canada. In the Detroit Sector, when
agents arrest aliens entering illegally, they transport them
back to their station and begin processing the alien for an
immigration hearing. During the processing, it is the agents
who decide which, if any, criminal checks they will run on the
aliens. The INS has no policy mandating that any records check
be completed on aliens who are arrested.
Even if an agent decides to run such checks, the accuracy
there is greatly compromised by the fact that it is difficult
to positively identify the aliens because they rarely carry a
passport or other form of identification. Thus, agents must
rely on the aliens who have consciously chosen to break our
immigration laws to provide honest information about
themselves. In many cases, it is impossible to verify such
information, as there is no biometric record from any previous
encounters. Prior to September 11, Border Patrol agents very
seldom received terrorist lookout lists. In one case several
years ago, I assisted the U.S. Coast Guard on the arrest of six
Syrian nationals who attempted entry illegally into Detroit.
Only at that point did I learn they, along with 14 others, were
on a terrorist lookout list. The Coast Guard had the list, but
the Border Patrol never did.
As the processing continues, the agents have very little
verified information in hand, serve the alien a form
delineating the sections of the immigration law they are
alleged to have violated, a box, marked ``own recognizance'' is
usually checked, and the aliens are allowed to leave into our
communities. Very seldom does the alien even provide a U.S.
address or phone number before they vanish into our
communities. We ask them to send the INS their address when
they take up residence; of course, they rarely do.
Unfortunately, the practice of catching and releasing
extends to criminal aliens at times. In one recent case, a
Detroit Sector Border Patrol Agent tracked down and arrested an
illegal alien who had been convicted of drug trafficking at
least five times. When arrested, he had identifications and
drivers licenses from seven different States. The agent naively
thought the alien would be held without bond for his
immigration hearing, as provided by law. The agent was wrong.
The illegal alien felon was ordered released by local Border
Patrol management over the strongest protest of the agent.
In 1996, Blaine, Washington Border Patrol Agents arrested
terrorist Abu Mezer, not once, but three times entering the
United States illegally. Even after his third arrest, Mezer was
released. Several months later, Mezer was shot by New York City
police, just hours before his planned attack on the New York
subway system. Aliens and smugglers are well-aware of the
practice of catch-and-release. This is demonstrated by one
particular case at the freight train tunnel connecting Detroit,
Michigan with Windsor, Ontario, Canada. The aliens, entering
illegally, walked through the train tunnel from Canada and near
the exit on the U.S. side. The agents illuminated them with
their flashlights and identified themselves as Border Patrol
agents. Instead of turning and running, the aliens simply
continued to the exit and surrendered to the waiting agents.
Clearly, there was little fear by the aliens of being held and
deported, and, sure enough, they were right. The aliens were
processed and released on their own recognizance within a few
hours.
In some instances, aliens are arrested by Border Patrol
agents and the determination is made to hold them pending the
posting of a cash bond. The aliens are turned over to the INS
Detention and Deportation Section. Frequently, though, the
Deportation Section will rescind the bonds and release the
aliens on their recognizance. This dangerous practice continues
today. When illegal aliens are released, we send a disturbing
message. The aliens quickly pass along the word about how easy
it is to enter this country illegally and remain here. This
practice is devastating to a sound Border Enforcement Strategy.
It has also negatively affected employee morale, leaving
agents with little sense of accomplishment or job satisfaction.
Rather than recognize and address any shortcomings, our local
managers' response has been to threaten those who speak out. As
a result of speaking to the press recently in my capacity as a
union official, they have proposed to demote me for 1 year and
suspend me without pay for 90 days. On a broader scale, some
high-level Border Patrol managers support proposals to remove
the Border Patrol from the INS in the hopes that the union will
be dismantled as result of such reorganization.
It is my hope the new INS commissioner will act quickly to
redirect the energies of some of his subordinates in a more
positive direction. I am encouraged by his support of the rank-
and-file employees on such issues as pay structure of Border
Patrol agents, in the hope that this will translate into a
willingness to work with the union on other issues of mutual
concern.
I am proud to be a member of the U.S. Border Patrol. As a
member and officer of the union, I am constrained to voice my
belief that local INS managers have not allowed us to protect
this great Nation's sovereignty to the best of our ability. In
fact, on September 11 and the following days, local Border
Patrol managers emphasized that it was, ``business as usual,''
despite the fact that acts of terrorism had been perpetrated
against our country.
Without detention and removal, there is no deterrent to
stem the flow of aliens, from whom seek to destroy the freedoms
of the way of life that we cherish. I therefore urge the
Members of this Subcommittee to aid us in performing our jobs
by providing us with the resources and the direction to fully
enforce our Nation's immigration laws.
Mr. Chairman and other Members of the Subcommittee, I thank
you again for this opportunity to testify, and I will be
pleased to answer any questions you might have.
Senator Levin. Thank you, Mr. Hall. Mr. Olson.
TESTIMONY OF KEITH M. OLSON,\1\ PRESIDENT, LOCAL 2913, NATIONAL
BORDER PATROL COUNCIL, AND SENIOR BORDER PATROL AGENT, U.S.
BORDER PATROL, BELLINGHAM, WASHINGTON
Mr. Olson. Chairman Levin, honorable Members of the
Subcommittee, my name is Keith Olson. I thank you for providing
me this opportunity to testify about my knowledge of Border
Patrol operations. I have been a Border Patrol agent for nearly
14 years and deeply love my job in the organization. The Border
Patrol was once a very proud, elite law-enforcement
organization whose morale was very high. This changed a few
years ago, and morale has been steadily deteriorating since
that time. My fellow agents and I want to reverse that trend
and restore the efficiency and pride of the U.S. Border Patrol.
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\1\ The prepared statement of Mr. Olson appears in the Appendix on
page 65.
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Sadly, there are some managers in the Immigration and
Naturalization Service and the Border Patrol who have been less
than honest with our elected representatives and the public.
Following the terrorist attacks of September 11, 2001, when
asked if our Northern Border was secure, they tried to assure
everyone that everything was under control. At that time there
were only 324 Border Patrol agents on the Northern Border. To
this day, that number has not increased. Not one additional
Border Patrol agent has been assigned to the Northern Border
since that fateful day. Instead, the agents have been working
12 hours a day, averaging 60 to 90 hours of work each week. All
100 of the Border Patrol agents temporarily assigned to the
Northern Border under Operation Northern Shield are assisting
with security at the ports of entry, where immigration
inspectors and Customs inspectors work. None of them are
assisting us in patrolling the 4,000 miles of Border between
those ports of entry.
There are approximately 9,000 Border Patrol agents assigned
to patrol the Southwest Border. That translates to one agent
for every 1,300 feet on the Southern Border. In sharp contrast,
there is only one agent for every 13 miles on the Northern
Border. If you were a terrorist, where would you like to take
your chances? The Border Patrol agents on the Northern Border
appreciate the manpower increases mandated by the USA Patriot
Act of 2001, and urge Congress to fund those vital positions
and ensure that experienced agents are allowed to transfer
there instead of utilizing new hires. It would require several
years to properly train new hires, and help is desperately
needed now. Moreover, depriving experienced agents of the
opportunity to fill these desirable positions would further
demoralize the workforce and increase attrition beyond its
alarmingly high current levels.
Accountability needs to be restored to the INS and the
Border Patrol. Committee oversight and investigations such as
today's hearing are an important part of that process. Most of
the illegal aliens from countries other than Mexico that are
apprehended on the Northern Border are released on personal
recognizance pending their deportation hearings before
immigration judges. In other words, they merely sign a piece of
paper promising to appear when given a court date. They provide
an unverified address and then walk out the door. Thousands
never return for their court dates, which usually results in an
order of deportation being issued in absentia.
There are many thousands of unserved warrants of
deportation languishing in INS file rooms across the country.
Unfortunately, very little time is devoted to tracking down
these law breakers. Occasionally, the Border Patrol intercepts
aliens who have an outstanding warrant during its daily
operations, but that is very rare. The INS investigations
program has primary jurisdiction over these matters, but it is
not a priority. In fact, in Washington State, where I have
worked since 1994, I have never seen or even heard of an INS
investigator attempting to seek out and arrest the subjects of
these warrants. This, too, must change. The INS needs to be
directed to focus more of its resources on this important task.
Interior enforcement has been neglected for too long and
must become a priority for the INS. Because of lack of funding
for removals, the Border Patrol also routinely fails to remove
illegal aliens who are apprehended on the Northern Border.
These aliens are given a Form I-210, instructing them to leave
the United States within 30 days, and they are released. Again,
there are no controls to verify if the alien ever actually
leaves the United States. It is not uncommon to rearrest aliens
who have never bothered to leave the United States as
instructed. Hopefully, that time there is available jail space.
If not, the process is repeated all over again. In my
experience, criminal record checks are performed for most
illegal aliens apprehended in my sector. This is not uniform
throughout the 21 Border Patrol sectors, however. Most of the
persons arrested for being in the United States illegally are
never issued an alien registration number. Millions of illegal
aliens are merely processed on the INS alien arrest processing
system, known as ENFORCE. All arrested aliens are supposed to
be processed in this database.
After the arrested alien is processed in ENFORCE, the
alien's right and left index fingers are entered into another
database system, called IDENT. In theory, this biometric
database tracks every immigration arrest of an individual. In
practice, however, it is flawed. It is not always online,
making it impossible to input data for all arrested aliens. It
also sometimes yields unreliable arrests. I have personally
seen it issue two different record numbers for the same person
when, in theory, there should only be one arrest history number
based on the same set of two fingerprints. This can happen for
a variety of reasons, such as dirty fingerprints, severely
scraped or cut or damaged fingerprints from manual labor, which
alters the skin patterns.
I do not claim to be a fingerprint expert, but since the
IDENT system is only based on two fingerprints, it appears to
me that this small sampling contributes to the errors. It is
important to note that the INS IDENT system does not interface
with the FBI's fingerprint system, and vice versa. The FBI
fingerprint system is based on all 10 fingerprints, not just
two. Perhaps the biggest flaw in the IDENT system is limited
amount of storage. Once it reaches a maximum memory, it deletes
the oldest records in order to make room for newer entries.
Obviously, all fingerprint data should be retained
indefinitely.
If an agent suspects that an alien has a criminal record,
the agent must take fingerprints the old-fashioned way, with
cards and ink, and enlarge them to 200 percent on a
photocopier, and then fax those copies to the FBI for analysis.
Even with such an archaic method, we frequently get a match
from the FBI. Taking advantage of the available technology
would undoubtedly allow us to submit more fingerprints and
increase the number of matches. The FBI fingerprint check is
not a mandatory, required record check. It is performed solely
at the discretion of the arresting agent.
The INS has a number of other record check subsystems, most
of which do not interface with each other, much less with those
of other law-enforcement agencies. There is a clear need for
much more coordination and information sharing. Moreover,
information on many non-immigrant visitors is not entered into
any databases, diminishing their utility. Further complicating
the difficult task of determining an arrested alien's criminal
history is the fact that it is almost impossible to obtain
criminal checks from other countries. The only foreign criminal
checks that I have ever received were from Canada.
The low amount of bonds placed on criminal aliens is
another major problem in the current system. For example,
aliens who are arrested by the Border Patrol and determined to
be a public safety or flight risk are generally given a bond
amount of over $25,000. That figure is entered into the
appropriate space on Form I-286, bond determination form, and
the subject is turned over to the INS district detention
facility. While at the detention facility, an INS deportation
officer can redetermine the subject bond down to a figure as
low as $500, or even a personal recognizance signature. For the
sake of the safety of our communities, this should not be
allowed to happen.
Despite its flaws, the U.S. Border Patrol retains a fair
degree of respect among Federal law-enforcement agencies. It
would be greatly improved if we were free to make law-
enforcement decisions based on the law instead of the political
agenda of bureaucrats. These concerns are shared by labor and
management alike. You will hear the same concerns voiced by my
former Deputy Chief Patrol Agent, who is also here to testify
today. I sincerely believe that these problems are not
insurmountable and, in fact, I am heartened by the willingness
of the new INS commissioner to take a fresh look at some of the
problems in the organization. For example, he has recognized
that the low pay structure of Border Patrol agent positions
contributes greatly to the attrition problem, and is actively
seeking funding for an upgrade. I am also hopeful that we can
work with him to correct some of the problems that I have
identified today.
We also need the assistance of Congress to obtain the
resources and provide the mandate necessary for us to do our
job. The brave men and women of the U.S. Border Patrol stand
ready to secure our Nation's Borders and interior and enforce
the immigration laws of the United States. As one of their
union representatives, I stand ready to provide you with
truthful answers to your questions.
Senator Levin. Mr. Olson, thank you very much. Mr. Davis.
TESTIMONY OF EUGENE R. DAVIS,\1\ RETIRED DEPUTY CHIEF PATROL
AGENT, BLAINE SECTOR, U.S. BORDER PATROL, BLAINE, WASHINGTON
Mr. Davis. Thank you, sir. Mr. Chairman and Members of the
Subcommittee, my name is Eugene R. Davis. On January 1, 2000, I
retired after spending 29 years with the Immigration and
Naturalization Service. During my tenure with INS, I served as
a Border Patrol agent, as an immigration inspector, as a
special agent, as a Patrol Agent-in-charge, as an Assistant
Chief Patrol Agent, and as the Deputy Chief of the Border
Patrol at Blaine, Washington. During my years of service, I
spent much time in the field, leading enforcement operations.
Those operations included working jointly with special agents
in the Seattle, Washington, Portland, Oregon, and Anchorage,
Alaska district offices.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Davis appears in the Appendix on
page 69.
---------------------------------------------------------------------------
Because of the expertise and the knowledge I have gained
over the many years of experience, I have testified before the
U.S. House on two other occasions. I am honored to be here
today and wish to express my sincere appreciation for giving me
the privilege of testifying. I enjoyed very much my years of
service. I can truly say that most of the field agents that I
worked with in the Border Patrol, immigration inspections, and
investigations were and continue to be dedicated government
employees who simply want to do their jobs in the manner that
they have taken an oath to do.
Since the horrible events that took place on September 11,
2001, I have encountered numerous INS employees who are having
a very difficult time dealing with what has happened. The
emotions of these INS employees mirror those of all other
American citizens, but they go much deeper because of the sense
of guilt, anger, and betrayal that they feel towards upper INS
management. These dedicated INS employees feel that if they had
been given the proper tools to do the job, and if they had been
allowed to enforce the immigration laws in a manner that should
have been done, that the events of September 11 may not have
taken place. I also believe this to be the cause.
It is my opinion that most of the blame as to how the
terrorists were able to come to our shores to perpetrator this
act was because of the total breakdown of immigration policies
and procedures in this country. If a building had collapsed
because of faulty construction and almost 6,000 innocent people
had lost their lives, accountability would be demanded. It is
my sincere hope that the U.S. Congress will carefully examine
the collapse of meaningful enforcement efforts within INS and
demand accountability.
As various subcommittees go about their business of putting
the INS under strict examination, I hope they will have the
wisdom to reach out to the retired District Directors and the
Chief Patrol Agents who are willing to come forth and testify.
They are the real experts as to what has gone wrong in
immigration enforcement. There are entire legions of retirees
that are willing to come forward. I believe there are also huge
numbers of INS employees willing to come forward if the gag
order they are under would be lifted.
If accountability turns into culpability, I hope that
Congress will see that those that were found derelict in their
duties could be removed and those found to be criminally
negligent or to have performed unlawful acts could be charged
and prosecuted. Per the request of the Subcommittee, there are
several things I would like to address that were concerns
during my service with the Border Patrol. First, alien
processing procedures and problems. During the last 10 years
that I served in the Blaine sector, we encountered a great deal
of difficulty in our efforts to effectively incarcerate and
remove undocumented aliens. This included both the illegal
aliens we encountered while doing interior enforcement
operations and those we arrested coming across the
International Border from Canada.
If our agents could establish that the apprehended alien
had a serious criminal record, we could usually locate a
facility to hold him. It was extremely difficult to locate any
criminal record on third-country aliens entering the United
States from Canada. Most had no identification at all, and we
had nothing to go on at all but their word, which was usually
highly suspect. Due to the fact that they had no identification
and they were in the United States, it was impossible to remove
them back to Canada. Lacking evidence of a criminal record and
because of a severe shortage of funds and jail space, most of
these aliens were given a notice to appear or a notice to show
cause, and they were released on their own recognizance.
Before being released, the processing agent would ask the
alien what his destination was and inform him he had a maximum
of 30 days to report to the nearest INS office for a hearing. A
file was then created and mailed to the INS district office, to
where the alien said he was going. Over the years that this
policy was in effect, there were literally hundreds of agents
from the Blaine Sector, but I think there were also literally
thousands throughout the country that were released in this
manner. Many of the undocumented aliens who are encountered--
whom we encountered, who were already residing in the United
States were given I-210 letters and told to depart the United
States.
During the last several years I worked, we no longer had a
problem dealing with undocumented aliens in the interior
because we were no longer allowed to work in any interior
enforcement operations. A check with any INS district office in
the United States will reveal boxes and boxes of files
belonging to those aliens who were told to report to the
nearest office at their destination and who failed to appear. I
would estimate that there has been no effort to locate 95
percent of those aliens. They have simply been allowed to
disappear into the United States. No one knows whether a number
of these missing persons are trained terrorists who will
eventually emerge to perpetuate more acts of terrorism against
innocent U.S. citizens.
It is not that the district offices have been derelict in
trying to locate these people. Each of the INS district offices
has one common major problem, a lack of manpower resources.
Most offices are able to operate only on a limited, reactive
basis. They cannot be proactive. It is common knowledge, for
all intents and purposes, that there is no interior enforcement
of immigration laws. In most cases, if you make it past the
Border and are undetected or if you receive a temporary pass to
make it to the interior, you are home free. The district
offices do not have adequate numbers of enforcement staff to do
what they have been tasked to do.
The situation in Seattle, Washington and Portland, Oregon
districts have been placed under even greater burden over the
last several years, when the Border Patrol was restricted from
doing any interior enforcement operations that they had
traditionally worked. This has created no-enforcement zones. It
has also provided the delusions in the Blaine Sector that
apprehensions have dropped for a positive reason. Final
conclusions: In closing, I would like to enter into my own
conclusions regarding the immigration mess that we as a country
find ourselves in. For the past two decades, there has been a
flood of uncontrolled illegal immigration that has taken place
in the United States. This illegal immigration has occurred by
people slipping across our Borders and coming here as visitors
or students who have not gone home.
There has been a bipartisan neglect to not really address
this problem. The common denominator in most of the instances
which causes this flood is jobs. People slip across the Border
1 day, buy a fraudulent Social Security card on the second day,
and by the third day they are gainfully employed. It is true
that many of these people are doing jobs that many American
citizens will not do, but it is also true that you cannot wink
and look the other way as an undocumented migrant worker
crosses the Border and, at the same time, screen out
terrorists. Over the years, there has been no one more
outspoken on the issue of putting additional resources on the
Norther Border than I.
I testified before the House Judiciary Committee on this
very subject. However, I would be the first to say that it will
not solve the immigration problem by just putting additional
agencies and technologies on the Border. This is the equivalent
of placing additional crewman and a global positioning system
on the Titanic. The INS policy in this country is a flooded,
sinking ship. In order for illegal immigration to come to a
halt, Congress will have to shut off the job magnet. This will
mean that Members of Congress will have to stand up to the
pressure of special-interest groups that are dependent upon
illegal aliens that slip across the Border.
As I made reference in my opening remarks, I believe that
it is imperative that Congress address the issue of
mismanagement at headquarters division of INS. If a Border
Patrol agent under my supervision was negligent and lost a $200
pair of binoculars, he was held accountable. He was disciplined
and forced to make restitution. If a headquarters manager
allows millions of dollars to be squandered on a useless
computer system that will not work, nothing is done to him. I
am especially perplexed as I read reports that have come from
both the present and the past Inspector General for the
Department of Justice. Over the last decade, they have written
and published many reports outlining mismanagement within INS,
but nothing seems to change.
Please take time and effort to correct these problems and
restore effective immigration policies. Again, thank you for
the opportunity of being here, and I would welcome any
questions that the Subcommittee may have.
Senator Levin. Thank you, Mr. Davis. Let me ask each of you
to give us just an educated guess; what percentage of the
people who are arrested attempting to cross the Border who are
not returned voluntarily are released on their own
recognizance, as compared to the percentage that is detained?
Mr. Hall. I will start out there. I would say that it is a
very high number.
Senator Levin. That are released on their own recognizance?
Mr. Hall. Own recognizance. I heard you mention the
percentage of 90 percent. I would say that is a fair number.
The other thing we have to realize here is where the numbers
game starts playing tricks on us, is where we have detained,
and they may be detained without bond or on a high bond. Then
they are turned over to the Deportation Section, and it
occurred last week, as it is probably occurring this week, as
well. The Deportation Section then rescinds the bond and
releases them on their own recognizance (OR). Many times we
call up the Deportation Section, saying we have two in custody,
can we bring them down, and they will advise us ``no,'' and
they will go ahead and just cut them if they do not have the
space.
Senator Levin. Say that again. Just cut them?
Mr. Hall. Cut them loose; in other words, release them on
their own recognizance.
Senator Levin. Because there is no space?
Mr. Hall. No space.
Senator Levin. Is that without a criminal background check?
Mr. Hall. Sometimes that will play into effect, if they
will hold them, but not normally, that usually does not make a
difference. They will go ahead and release the criminals, as
well.
Senator Levin. Just because there is no space.
Mr. Hall. There is no space, no money. So that number
actually can be higher than what it looks, because some who are
initially issued the bond or being held on a bond, can have the
bond later rescinded within a couple of days, and then they are
released OR, as well, own recognizance.
Senator Levin. Mr. Olson, do you want to comment?
Mr. Olson. I would concur with Mr. Hall, probably the same
figure in our area, Seattle, Blaine Sector. In our area, we
have what we affectionately call the Three-card Monty. We put a
bond on them and send them down to district, and district
releases them, lowers the bond, and it will kick them out the
back door, where we think the same way as he does, that they
are in custody, when they are not. I have personally seen
convicted, aggravated felons are the worst ones that we have,
that have known criminal records, still kicked out. They are
statutorily ineligible for a bond. Just for lack of jail space,
they are released.
Senator Levin. Let's make clear what you mean by kicked
out. You do not mean kicked out of the country; you mean kicked
into the country.
Mr. Olson. Yes, sir, released right back out onto the
streets.
Senator Levin. Mr. Davis, do you want to comment?
Mr. Davis. I cannot comment on the last 2 years, because I
have been retired for almost 2 years. But I would say that over
the last decade that I worked, many, many people were released,
and one of the things, sir, that Mr. Hall made reference to,
the case with Abu Mezer; this was the individual that the New
York City police shot in Brooklyn as he was getting ready to be
a suicide bomber. We arrested this individual twice in 1996.
When we ran record checks in Canada, it said there was no
record. Subsequently, we learned there was two records there.
But the thing that I found so troubling about this was when we
sent him to Seattle, put a $25,000 bond on him the third time
we got him--we got him two times within a week--we did not see
him for 6 months. Six months later, we have got him in
Bellingham putting two other people on a bus. But a $25,000
bond, sent him to Seattle; the bond was lowered to $5,000--but
the thing that really blows my mind on this, that it was
another illegal alien that went into the INS office and bonded
this individual out. His status was not even checked.
Senator Levin. Now, did this man have a record?
Mr. Davis. Mr. Mezer?
Senator Levin. Yes.
Mr. Davis. Mr. Mezer had a record in Canada, subsequently
we found, later on. The first two times we got him, when we ran
checks in Canada, it came back negative. Because of a lack of
jail space, we kicked him back to Canada; the Canadians would
take him back. The third time we got him, we found that he had
been convicted of possession of a stolen credit card. I think
he had also been arrested for assault.
Senator Levin. In Canada.
Mr. Davis. In Canada.
Senator Levin. That was before you set that bond?
Mr. Davis. Yes. The third time we got him, he was putting
two other people on a bus. At that time, sir, our guess was
that he was involved in alien smuggling, and I think that he
probably was involved in alien smuggling, but unfortunately
some of the aliens he was smuggling, I think, very well may
have been also terrorists. But when we arrested him the third
time, send him down, he was released 6 months later. He was
shot by the New York City PD as he was getting ready--he
actually, I understand, as they kicked in the door, actually
went for the explosives, and because of that he was shot.
Senator Levin. But the third time that he entered, you knew
that he had a Canadian record, and that is why a high bond was
set?
Mr. Davis. Well, yes. But we were very suspicious because
of the fact we got him 2 weeks in a row, but we were also
concerned because there was a 6-month period there that we did
not see him at all.
Senator Levin. Now, has the percentage of people who are
released on their own recognizance changed since September 11?
Can you tell yet, Mr. Hall?
Mr. Hall. Just within the past few days, since there have
been rumblings of this Subcommittee starting an investigation,
there has been detention, but prior to last week, no, it had
not changed.
Senator Levin. Do you know, Mr. Olson? Was there any change
since September 11 in your sector?
Mr. Olson. Actually, it has gotten worse. All of our jail
contracts that we have with the local authorities have expired
and we have absolutely no jail space to hold these people. We
are having to try and shuffle them around, and most are being
released because we have no jail contracts. They expired.
Senator Levin. The INS, you have testified, the detention
office can override the agent's decision, is that correct, on
whether someone should be released, the amount of bond and so
forth?
Mr. Davis. That is correct.
Senator Levin. Does that happen often?
Mr. Olson. I would say probably with every case. I have yet
to see one, a bond that we put on them, that bond be paid and
maintained. It is always bargained down.
Senator Levin. At the INS----
Mr. Olson. At the INS----
Senator Levin [continuing]. Detention facility?
Mr. Olson [continuing]. Facility, right.
Senator Levin. Have they ever overridden your judgment in
the opposite direction, in favor of detention instead of in
favor of release? Does that happen?
Mr. Olson. Not to my knowledge.
Senator Levin. Do you know, Mr. Hall?
Mr. Hall. In 17 years, I have seen it happen once.
Senator Levin. Do you know, Mr. Davis, if it is uncommon?
Mr. Davis. I have never seen it happen.
Senator Levin. Now, on the percentage of people who are
released on their own recognizance, who do not show up for a
hearing, I am not sure the two of you would be in a good
position to know that, if you are, just let me know. But I
think Mr. Davis may or may not be, from your perspective. Do
you have a sense as to what percentage of people who are
released on their own recognizance who do not show up for their
hearing?
Mr. Davis. Back when I was working, it was very low. It was
so ridiculous----
Senator Levin. Who do show up.
Mr. Davis. Very low, were very low, the ones that do show
up; very high, the ones that do not show up.
Senator Levin. Do you have any sense of that, because you,
obviously, are doing the arresting? You are not doing the
following of who shows up and who does not, but do you have a
sense of whether most people released on their own recognizance
show up at the hearing that they are supposed to show up at? Do
you have any sense of that?
Mr. Olson. A small percentage show up, and you can tell by
when they do not show up, in most cases they will issue a
warrant of deportation in absentia, and there are literally
thousands of those out there, but they are not in a database
anywhere, absolutely none, like a records check.
Senator Levin. Those warrants for people who do not show up
that are issued are not even put into a database?
Mr. Olson. No. Like earlier they were testifying that the
NCIC warrant system--we do not have a warrant system.
Senator Levin. Do you have anything on that, Mr. Hall, to
add to what has been said already?
Mr. Hall. I think that is fair.
Senator Levin. Now, for those who do not show up, is there
any effort made to arrest them?
Mr. Hall. We used to in Detroit, seek out some, especially
cases that an officer had initiated.
Senator Levin. How long ago was that?
Mr. Hall. A year, 2 years ago, possibly; then the new
policy came out of no interior enforcement, so we were not
allowed to seek any individuals, no matter what the seriousness
of their crimes, be there a criminal record or whatever. If
they had a warrant of deportation at that point, we were told
that we could not go out and seek them out.
Senator Levin. All right, and that is as of a year or two
ago. Were you operating under the same policy, Mr. Olson, or
does that differ from sector to sector?
Mr. Olson. No, we have pretty much the same policy. We
would be referred stacks of these deportation warrants, to go
out and seek them.
Senator Levin. Up to a certain year?
Mr. Olson. That stopped probably about 2 years ago, when
they started this no interior enforcement so we can
artificially decrease the apprehension rate.
Senator Levin. So we can artificially increase the
apprehension--how does that increase the apprehension rate?
Mr. Olson. Decrease it, sir.
Senator Levin. Decrease it, OK.
Mr. Davis. I would have to agree with Mr. Olson. I spent 20
years in the Blaine Sector as an agent, working my way up the
ranks, and to me the last 2 years probably were one of the
reasons, sir, that I really decided to retire. When we came up
with this policy that an individual in Bellingham, Washington,
might get information on the phone, but he has got 15 people
working a mile from the Border Patrol station and he gets
information, he cannot work that because that is interior
enforcement, that is criminal.
Senator Levin. Got you. OK. Now, on the issue of whether
someone is detained or released, one of the grounds statutorily
for detention is if they are a threat to the community, and
then that presumably requires there be some kind of a criminal
record check at that point. But apparently criminal record
checks are not always made; is that correct? Mr. Hall.
Mr. Hall. It is not a mandate. It is left to the agent's
discretion, but it is a mandate that we use the ENFORCE and the
IDENT system. If these other systems were interfaced with
IDENT, it would be simple. Everything else is in place if they
were interfaced, but now they are asking us--I mean, with all
these different systems, you would need the workweek to finish
doing all the checks on everybody. So the systems desperately
need to be interfaced. Some of these systems I had not even
heard before this meeting.
Senator Levin. Before what?
Mr. Hall. Before this Subcommittee meeting, some of the
systems I had not even heard of.
Senator Levin. OK. Mr. Olson.
Mr. Olson. Like he says, IBIS, I have never heard of IBIS.
I do not know where we are going with that. I have been in 14
years. It is the first time I have heard it today.
Senator Levin. People, though, are released if there is no
space, I think you testified----
Mr. Olson. That is correct.
Senator Levin [continuing]. Without a criminal background
check.
Mr. Olson. We are releasing people without a criminal
background check. We are also releasing people with criminal
background checks.
Senator Levin. Where there is a crime even shown in their
check; is that correct?
Mr. Olson. Yes, sir.
Senator Levin. There have been times when the crime is even
identified and you still release them, or they are released?
Mr. Olson. That is correct, and we frequently run into
reoffenders, who are out on bond from INS. They are rearrested
by the police department for other crimes and then sometimes
convicted of them, sometimes they are out on bond again from
that, turned back over to us, and we do what we call a bond
redetermination, where we try and--say they are brought up on a
$5,000 bond--we take them and try to increase that bond to
$25,000, send them down to district INS, and they will kick
them right back out on the street on the same exact bond that
they had. It is an exercise in futility.
Senator Levin. Mr. Davis, do you have anything to add?
Mr. Davis. The only thing I would like to add is both of
these agents talking about the horrendous problem as far as
record systems, and this is one of the things I made reference
to in my testimony, sir, is the fact that INS over the last 10
years, I would venture it is probably--I know it is in the
hundreds and hundreds of millions of dollars, if not in the
billions, that they have put into these record systems, for
record systems you cannot interface, record systems you cannot
access, no accountability. They will spend millions and
millions and millions of dollars on a system that does not
work, and there seems to be absolutely no accountability, and I
just think that is absolutely inexcusable.
I think that any agent in the field, I do not care where he
is, there should be one system. He could run it one time, and
it would run each of those systems. But it is criminal.
Senator Levin. I want to go back to a question which I had
asked our first panel, that relative to an estimate as to the
number of people who are arrested actually as they are
entering. You also arrest people on occasion who have already
entered.
Mr. Hall. Correct.
Senator Levin. What is your experience on that, just in the
Detroit Sector? Of the people the Border Patrol arrests, what
percentage--give us an estimate, a range, are arrested as they
are entering the country?
Mr. Hall. I think prior to September 11 it was somewhere in
the neighborhood of about 30 percent, a rough figure, and I
believe now it is upwards of 50 percent.
Senator Levin. That are actually arrested----
Mr. Hall. As they are coming in the country.
Senator Levin. The figure that I think he said was about 10
percent. Did you hear that? Do you know where that figure--does
that seem very low to you?
Mr. Hall. It is a pretty lowball number, I would say.
Senator Levin. I think you saw a chart, but maybe not.
Maybe we will put up that chart where there was no local
address that was put in, where people did not even provide an
address, but who were released. Have you ever seen that?
Mr. Hall. He mentioned that he was shocked by that. That is
absolute common practice for years in Detroit.
Senator Levin. That there is no address?
Mr. Hall. I would say over 90 percent of the people we
arrest at entry, coming into the country illegally, they know
that if they have a travel document there is a greater
likelihood they will be held because we know where they are
from. The Deportation Section does not have to secure a travel
document for them, so there is a greater chance of removal to
their home country. So, before entering the United States, they
will get rid of everything that has any identification for
them, so when they come in, we can run them through NCIC-3, we
can run them through CIS, all the systems, but we are relying
on this individual, who has already broken the law, to tell us
their true name, tell us their true date of birth, and we do
not even know what country they are from. We are relying on
them to tell us what country they are from.
Senator Levin. In terms of giving you an address where they
can be notified of the removal hearing, is it unusual that they
will not give you an address? They will just say there is no
address?
Mr. Hall. They will say they do not know anybody in the
United States. They have no address. They do not know where
they are going, ``I know nothing.''
Senator Levin. A lot of those folks are just simply
released on their own recognizance?
Mr. Hall. I would say almost exclusively all of them.
Senator Levin. A lot of the people arrested who have no
documents, no address that identifies where they are going, are
still released on their own recognizance?
Mr. Hall. Yes.
Senator Levin. Is that true in Washington, too, or is that
a Detroit incredibility?
Mr. Olson. No, this is the same thing. It was also the same
thing when I worked on the Southern Border. We frequently
released them without addresses.
Senator Levin. Even those who were not voluntarily
returned? I guess on the Southern Border, you have the vast
majority who are just voluntarily returned; is that correct?
Mr. Olson. That is correct.
Senator Levin. So the relatively small percentage that did
not voluntarily return, that were then entitled to a hearing,
you are saying you had the same situation, where there was no
address in the United States but you still give a notice-to-
appear document and tell them that they will be notified when
and where to appear for the removal hearing? Is that typical in
the South, too?
Mr. Olson. Yes, sir. They know that anything you give them,
you are going to use to hunt them down later, or so they
suspect.
Senator Levin. Anything that they give you.
Mr. Olson. Any information, such as addresses, phone
numbers, relatives, so that is why they will not give it----
Senator Levin. That they give you.
Mr. Olson. That is correct.
Senator Levin. So then where do you send the hearing
notice? In this kind of case, where is the hearing notice sent?
Mr. Hall. We do not send one. We provide them with another
form, that is EOIR-33 form. We give that form to the alien as
they are walking out the door, and where it says alien
registration number on the right side of that form, I will fill
that number in and then ask them, when they get an address in
the United States, to please mail that to INS so we know where
to look for them or where to send them their address. Normally,
that form does not make it out of our parking lot. They
normally throw that on the ground as they are walking out.
Senator Levin. It is a common thing to issue a form like
that?
Mr. Hall. Everyone that we release on their own
recognizance that fails to provide an address, we give them
that form in hopes that they will return it to INS with their
address once they take up residence in the United States.
Senator Levin. Do we have any idea what percentage of those
forms are returned? Do you have any idea? Does anyone know?
Mr. Davis. I have no idea.
Mr. Hall. It is probably less than the people that show up
for their hearings, I imagine, or somewhere thereabouts, about
the same number.
Senator Levin. What does the term B&B stand for?
Mr. Hall. Bag and baggage.
Senator Levin. What does that mean?
Mr. Hall. That means they have an order of deport and they
are ready to go, get their bag and baggage and ship them.
Senator Levin. Is that the warrant that you were referring
to?
Mr. Hall. That would be a warrant of deportation.
Senator Levin. Those are the ones that you have got boxes
of, just boxes of those documents in your office?
Mr. Davis. Yes, sir--not in our office; the district INS
maintains all records.
Mr. Davis. I might say I verified that just last week at a
conference. I was talking to an individual from where the
district office is, and he said oh, yes, they have got boxes of
those things, but again there is nobody to go out and look for
them.
Senator Levin. Prior to September 11, the Border Patrol was
staffing I think only two of three shifts, at least in some
sectors of the Northern Border; is that correct?
Mr. Hall. In most of our stations in Detroit, we staff only
one of three shifts.
Senator Levin. Now, still?
Mr. Hall. Now they are staffing two 12-hour shifts.
Senator Levin. But before September 11, there was only one
of the three shifts?
Mr. Hall. Some of the stations--we have five stations, at
least two, if not three, of the stations only worked one shift.
Senator Levin. One shift. Mr. Olson, what was the
situation?
Mr. Olson. We had a day shift and an afternoon swing shift.
We did not have an evening graveyard shift. We are currently
working the people that we have now 12-hour shifts in order to
cover this additional shift that was uncovered, but without any
additional people.
Senator Levin. But that was before September 11, the so-
called graveyard shift was not covered.
Mr. Olson. Wide-open.
Senator Levin. That would be from midnight to 8 o'clock in
the morning, roughly?
Mr. Olson. Yes, sir.
Senator Levin. We have heard a little bit his morning and
before this morning about a watch list, which is supposed to be
maintained for possible terrorists. Is there a watch list that
you access?
Mr. Hall. Yes, we receive it in Detroit over our internal
mail, the E-mail. We started receiving that shortly after
September 11.
Senator Levin. Before September 11, no watch list, and do
you know whose watch list that is? Is that an FBI watch list?
Is that an INS watch list?
Mr. Hall. I think it is an INS departure prevention watch
list, or people we are not supposed to let leave the country.
Senator Levin. Let leave the country?
Mr. Hall. That is the one that I have seen. It is a
departure prevention list.
Senator Levin. OK. Mr. Olson, do you know what that is?
Mr. Olson. I do not know who authors it. I have seen the
list, there was one and then one revision since September 11. I
have never seen one before that.
Senator Levin. Is there currently a requirement that you
look at a watch list?
Mr. Olson. No, there is absolutely no requirement, but
everyone in my station and my sector that I know of is, of
course, very interested in what has happened and doing our best
to maintain that if we come into contact with someone who could
possibly be on the list, that their name is compared against
the people on the list.
Senator Levin. This is names, photographs?
Mr. Olson. No photographs, just names, last known
addresses, possible birth dates or Social Security numbers.
Senator Levin. But, again, you think it is an INS watch
list? Is that your understanding, or you do not know?
Mr. Olson. I do not know who issued it.
Senator Levin. Are you required to look at a watch list
with every person?
Mr. Hall. I do not think there is any requirement, sir, but
I believe most of the agents do, when we encounter someone that
is a suspect.
Senator Levin. How many people are on this watch list,
roughly?
Mr. Hall. It started out, I think, at 100, and I do not
know if it has grown to 200 or 300.
Senator Levin. Does that sound about right, Mr. Olson?
Mr. Olson. At least.
Senator Levin. Well, let me close by thanking each of you
for taking the time and having the courage to come and tell us
what is happening at our borders. It is not easy to do what you
have done, and we are proud of you for doing it. The
Subcommittee is going to closely monitor any personnel actions
to make sure that there is no act of retaliation taken against
any of you for testifying before us.
It is utterly amazing to me that for persons who are
arrested for illegally entering this country outside of a port
of entry, who are released on their own recognizance, that
there is not a criminal background check required, that the
IBIS system is not required to be checked, that there is not a
requirement of the State Department list, the Class 2 list, as
it is called. These are people who cannot get a visa to come to
this country, to whom our consuls do not give visas, and yet
that information is not made available to our Border Patrol
agents for people whom they have arrested for illegally
entering the country. We do not require an address for people
who are released. For those few who maybe can make out a case
that, even though they have been arrested for illegally
entering the country, that they still ought to be somehow or
other released on their own recognizance, we do not even
require an address for them.
Now, there are a lot of complex, difficult questions in the
immigration field. What is the proper level of legal
immigration? How do you deal with the large number of illegal
immigrants who are already here, who have established homes
here, who have jobs here? How do you deal with them? What do we
do about temporary work permits? Should we have a larger system
of temporary work permits? How do you prioritize green cards
and visas? There is just a whole host of complicated questions.
But I do not think the subject that we have looked at this
morning is complicated or difficult. What we are looking at
this morning is why in Heaven's name are we releasing people
after they have been arrested for attempting to enter the
country illegally, on their own recognizance, their own
statement that they will show up at a hearing? Although we do
not have the numbers, because the INS does not keep them,
somewhere probably around half of those are people who were
actually arrested as they were entering the country.
We had, I think, your testimony, Mr. Hall, today that since
September 11 that may be 50 percent, but we are not sure what
that number is, but it could be half of the people. We had a
much lower number by our first panel, which differs from the
number you gave us, but nonetheless a significant number of
people arrested as they are entering the country illegally are
released on their recognizance. They are sneaking in. These are
the people we are talking about this morning who are not
arrested at a port of entry. We are talking about people here
who are arrested other than at a port of entry.
It seems to me that that is a totally absurd policy, and
that the only reason that we are following that policy,
apparently, is that there is a lack of places to put these
people, there is a lack of detention facilities. We have got
to, it seems to me, take steps to make sure that people who are
arrested for illegally entering this country, if they do not
seek asylum are subject to criminal background checks and
detained where appropriate. But to just simply hand somebody
whom you have arrested for sneaking into the country a piece of
paper saying ``Let us know what your address is, will you, so
we can notify you of a place to come to a hearing, so that you
can be removed from the country,'' is not credible. That is the
theater of the absurd to me and it has got to be changed.
Now, we have looked at one segment of this problem this
morning. We have not looked at all the other segments. I want
to emphasize that. We have looked at one segment. This is what
the Border Patrol faces. These are the folks who arrest people
other than at ports of entry, and when our agents arrest people
for illegally entering the country and then see a huge
percentage of those folks who do not return voluntarily, a huge
percentage just simply released into this country, that is
absolutely almost a useless job at that point. It is exactly
the wrong message we are sending to people. The message that
that policy sends to people is if you enter the country other
than at a port of entry and you are arrested, you are going to
be released into this country. That is what the odds are. You
are just going to be released into the country, and you will
just be told, ``Hey, let us know what your address is, would
you, so we can notify you where you can come to a hearing which
is going to lead to your removal.'' Well, if they were going to
do that, they would not be sneaking into the country to begin
with.
So I just do not know how much more dysfunctional a policy
can be than that. That is the bottom line for me, and so we are
going to be asking the INS, the Border Patrol, to report back
to this Subcommittee in 30 days on what they are going to do
about this particular problem and what steps are going to be
taken to solve it, and that includes a lot of aspects,
including all these information systems which are not made
available to our Border Patrol that give critically-important
information about people whom they arrest. This information is
in the hands of the State Department or in the hands of some
other agency, but is not available to the Border Patrol agents
who are arresting the folks who are attempting to enter this
country illegally.
The events of September 11 are so horrendous that the wake-
up call that they have given to us, it seems to me, is so loud
that we can expect the INS and the Congress to respond, and we
are going to do just that. We thank you all, and the hearing is
adjourned.
[Whereupon, at 12:18 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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