[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
THE 287(G) PROGRAM: ENSURING THE INTEGRITY
OF AMERICA'S BORDER SECURITY SYSTEM
THROUGH FEDERAL-STATE PARTNERSHIPS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON MANAGEMENT, INTEGRATION, AND OVERSIGHT
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 27, 2005
__________
Serial No. 109-36
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
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COMMITTEE ON HOMELAND SECURITY
Christopher Cox, California, Chairman
Don Young, Alaska Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas Loretta Sanchez, California
Curt Weldon, Pennsylvania, Vice Edward J. Markey, Massachusetts
Chairman Norman D. Dicks, Washington
Christopher Shays, Connecticut Jane Harman, California
Peter T. King, New York Peter A. DeFazio, Oregon
John Linder, Georgia Nita M. Lowey, New York
Mark E. Souder, Indiana Eleanor Holmes Norton, District of
Tom Davis, Virginia Columbia
Daniel E. Lungren, California Zoe Lofgren, California
Jim Gibbons, Nevada Sheila Jackson-Lee, Texas
Rob Simmons, Connecticut Bill Pascrell, Jr., New Jersey
Mike Rogers, Alabama Donna M. Christensen, U.S. Virgin
Stevan Pearce, New Mexico Islands
Katherine Harris, Florida Bob Etheridge, North Carolina
Bobby Jindal, Louisiana James R. Langevin, Rhode Island
Dave G. Reichert, Washington Kendrick B. Meek, Florida
Michael McCaul, Texas
Charlie Dent, Pennsylvania
______
Subcommittee on Management, Integration, and Oversight
Mike Rogers, Alabama, Chairman
Christopher Shays, Connecticut Kendrick B. Meek, Florida
John Linder, Georgia Edward J. Markey, Massachusetts
Tom Davis, Virginia Zoe Lofgren, California
Katherine Harris, Florida Sheila Jackson-Lee, Texas
Dave G. Reichert, Washington Bill Pascrell, Jr., New Jersey
Michael McCaul, Texas Donna M. Christensen, U.S. Virgin
Charlie Dent, Pennsylvania Islands
Christopher Cox, California Ex Bennie G. Thompson, Mississippi Ex
Officio Officio
(II)
C O N T E N T S
----------
Page
STATEMENTS
The Honorable Mike Rogers, a Representative in Congress From the
State of Alabama, and Chairman, Subcommittee on Management,
Integration, and Oversight:
Oral Statement................................................. 1
Prepared Statement............................................. 2
The Honorable Kendrick B. Meek, a Representative in Congress From
the State of Florida, and Ranking Member, Subcommittee on
Management, Integration, and Oversight......................... 3
The Honorable Christopher Cox, a Representative in Congress From
the State of California, and Chairman, Committee on Homeland
Security....................................................... 29
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security.............................................. 5
The Honorable Donna Christensen, a Delegate from the U.S. Virgin
Islands........................................................ 33
The Honorable Charlie Dent, a Representative in Congress From the
State of Pennsylvania.......................................... 32
The Honorable John Linder, a Representative in Congress From the
State of Georgia............................................... 35
The Honorable Michael McCaul, a Representative in Congress From
the State of Texas............................................. 37
The Honorable Dave Reichert, a Representative in Congress From
the State of Washington........................................ 39
WITNESSES
Panel I
Major Charles E. Andrews, Chief, Administrative Division, Alabama
Department of Public Safety:
Oral Statement................................................. 20
Prepared Statement............................................. 22
Mr. Mark F. Dubina, Special Agent Supervisor, Tampa Bay Regional
Operations Center, Florida Department of Law Enforcement,
Regional Domestic Security Task Force Supervisor:
Oral Statement................................................. 15
Prepared Statement............................................. 16
Mr. Paul M. Kilcoyne, Deputy Assistant Director, Office of
Investigations, U.S. Immigration and Customs Enforcement:
Oral Statement................................................. 6
Prepared Statement............................................. 8
Panel II
Chief Jimmy R. Fawcett, Sixth Vice President, International
Association of Chiefs of Police:
Oral Statement................................................. 57
Prepared Statement............................................. 59
Dr. Kris W. Kobach, Professor, University of Missouri-Kansas City
School of Law:
Oral Statement................................................. 50
Prepared Statement............................................. 54
THE 287(G) PROGRAM: ENSURING THE
INTEGRITY OF AMERICA'S BORDER SECURITY
SYSTEM THROUGH FEDERAL-STATE PARTNERSHIPS
----------
Wednesday, July 27, 2005
House of Representatives,
Committee on Homeland Security,
Subcommittee on Management,
Integration and Oversight,
Washington, DC.
The subcommittee met, pursuant to call, at 10:05 a.m., in
Room 210, Cannon House Office Building, Hon. Mike Rogers
[chairman of the subcommittee] presiding.
Present: Representatives Rogers, Cox, Linder, Reichert,
McCaul, Dent, Meek, Thompson, and Christensen.
Mr. Rogers. [Presiding.] This hearing will come to order.
Today's hearing will focus on the current efforts by state
and local law enforcement in enforcing federal immigration laws
under a program referred to as the 287(g) Program.
I first would like to welcome our distinguished guests
today and thank them for taking the time out of their busy
schedule to be here. I know you all have a lot to do, and it is
awful kind of you to come by and visit with us.
It is a special pleasure for me to welcome a witness from
my home state of Alabama. Major Charles E. Andrews is the chief
of the Administrative Division of the Alabama Department of
Public Safety and works on the front lines with the 287(g)
Program.
Section 287(g) of the Immigration and Nationality Act
provides a powerful tool to state and local law enforcement.
Under this section of the Act, police departments can establish
partnerships with federal immigration officers to reduce crime
by identifying folks who are not in the United States legally.
In my home state of Alabama, for example, the Department of
Public Safety entered into a memorandum of understanding with
the Department of Homeland Security in September of 2003 to
participate in the 287(g) Program. This partnership allowed 21
state troopers to be deputized to enforce federal immigration
laws during the course of performing their normal duties.
In addition, the state of Alabama uses these officers at
six Department of Motor Vehicles offices to review suspicious
identity documents. These officers have the authority necessary
and training to contact the Federal Law Enforcement Support
Center to check the immigration status and identities of
suspects.
If the Center determines that the suspects should be taken
into custody, officers from the Homeland Security Department's
Bureau of Immigration, Customs and Enforcement, or ICE, will do
so within 72 hours.
The 287(g) Program also in operation at other parts of the
country. Florida initially authorized the training of 35 state
and local law enforcement officers. Recently, an additional 27
officers were added to work on the Florida Regional Domestic
Security Task Forces, which perform immigration enforcement
functions as a part of their investigation.
And in California, Los Angeles County signed a 6-month
memorandum of understanding for a 287(g) pilot program. Under
this agreement, federal immigration officers train and certify
so-called custody assistants. These officials perform
immigration enforcement functions at the post-conviction stage
of criminal proceedings.
We are pleased to have with us today expert witnesses who
will discuss how the 287(g) Program works, how the program
improves security and how the Department of Homeland Security
manages the program.
Our first panel, we will hear from Mr. Paul Kilcoyne, ICE's
deputy assistant director of investigations. We will also hear
from Mr. Mark Dubina, special agent supervisor for the Tampa
Bay Regional Operations Center at the Florida Department of Law
Enforcement, as well as Major Charles E. Andrews, chief of the
Administrative Division of the Alabama Department of Public
Safety.
I would like to mention at this point that the committee
originally was going to hear from Alabama's assistant attorney
general, Mr. Herron Lowe. Unfortunately, Mr. Lowe became ill
over the weekend. But we are pleased that Major Andrews was
available on such short notice, and we certainly wish Mr. Lowe
a speedy recovery.
Our second panel features experts on law enforcement who
will share their views on the 287(g) Program. Dr. Kris Kobach
is from the University of Missouri-Kansas City School of Law,
and Chief Jimmy Fawcett is the sixth vice president for the
International Association of Chiefs of Police.
I once again want to thank the witnesses and look forward
to their testimony on this important topic.
And with that, I will recognize the ranking member, my
friend and colleague from Florida, Mr. Kendrick Meek.
Prepared Statement of Hon. Mike Rogers
The hearing will come to order. This hearing will focus on the
current efforts by state and local law enforcement in enforcing Federal
immigration laws under a program referred to as the ``287(g) Program.''
I would first like to welcome our distinguished witnesses, and
thank them for taking time out of their full schedules to be with us
today. It is a special pleasure for me to welcome our witness from my
home state of Alabama--Major Charles E. Andrews, Chief of the
Administrative Division of the Alabama Department of Public Safety--who
works on the front lines with the 287(g) Program.
Section 287(g) of the Immigration and Nationality Act provides a
powerful tool to state and local law enforcement. Under this section of
the Act, police departments can establish partnerships with Federal
immigration officers to reduce crime by identifying folks who are not
in the United States legally.
In my home state of Alabama, for example, the Department of Public
Safety entered into a Memorandum of Understanding with the Department
of Homeland Security in September 2003 to participate in the 287(g)
Program. This partnership allowed 21 state troopers to be deputized to
enforce Federal immigration law during the course of performing their
normal duties.
In addition, the state of Alabama uses these officers at six
Department of Motor Vehicle offices--or, DMVs--to review suspicious
identity documents. These officers have the authority and necessary
training to contact the Federal Law Enforcement Support Center to check
the immigration status and identities of suspects. If the Center
determines that the suspect should be taken into custody, officers from
the Homeland Security Department's Bureau of Immigration and Customs
Enforcement--or, ICE--will do so within 72 hours.
The 287(g) Program also is in operation in other parts of the
country. Florida initially authorized the training of 35 state and
local law enforcement officers. Recently, an additional 27 officers
were added to work on Florida's Regional Domestic Security Task Forces,
which perform immigration enforcement functions as part of their
investigations.
And, in California, Los Angles County signed a six-month Memorandum
of Understanding for a 287(g) pilot program. Under this agreement,
Federal immigration officers train and certify six so-called ``custody
assistants'' to perform immigration enforcement functions at the post-
conviction stage of criminal proceedings.
We are pleased to have with us today expert witnesses who will
discuss how the 287(g) Program works; how the Program improves
security; and how the Department of Homeland Security manages the
Program.
On our first panel we will hear from Mr. Paul Kilcoyne (pronounced:
Kil-coin), the Deputy Assistant Director of Investigations for the
Bureau of Immigration and Customs Enforcement within the Department of
Homeland Security; Mr. Mark Dubina (pronounced doo-beena), Special
Agent Supervisor for the Tampa Bay Regional Operations Center, at the
Florida Department of Law Enforcement; and Major Charles E. Andrews,
Chief of the Administrative Division of the Alabama Department of
Public Safety.
I would like to mention at this point that the committee originally
was going to hear from Alabama's Assistant Attorney General--Mr. J.
Haran Lowe--but he got pretty sick over the weekend. So, we are pleased
that Major Andrews was available on such short notice, and we wish Mr.
Lowe a speedy recovery.
Our second panel features two experts on law enforcement who will
share their views on the 287(g) Program. Dr. Kris W. Kobach (pronounced
kow-back) is from the University of Missouri-Kansas City School of Law,
and Chief Jimmy Fawcett is the Sixth Vice President for the
International Association of Chiefs of Police.
I once again thank the witnesses for joining us today, and look
forward to their testimony on this important topic.
Mr. Meek. Thank you, Mr. Chairman. I am glad to be here
this morning.
I would also like to welcome our witnesses to our
subcommittee.
This hearing, as you stated before, has been called to
assess the 287(g) Program. As a former state law enforcement
officer myself, I strongly believe our laws must be enforced. I
also have a firsthand knowledge of what the state law
enforcement officer will face on a daily basis.
For the federal government to establish and develop
effective partnerships with the state and local enforcement
agencies are important.
I am also aware of the conflict and burdens that are facing
state law enforcement officers that are expected to protect and
serve the public and enforce local and state laws. And on top
of that now federal laws.
The topic of today's hearing, the 287(g) Program, is
another example of federal enforcement responsibilities that
state and locals are asked to take on. Only two states in the
Union and one county participate in 287(g) Program. Florida is
one of them.
The Florida Department of Law Enforcement has a limited
program that allows agencies to apprehend undocumented aliens
if they are participating in a joint investigation with
Immigration and Customs Enforcement. I certainly believe that
we should enforce immigration laws and work to prevent illegal
immigration into this country.
However, the International Association of Chiefs of Police
has pointed out in its December report, Mr. Chairman, that I
would also like to ask unanimous consent to enter into the
record--
Mr. Rogers. Without objection.
Mr. Meek. --some concerns. And we have also had
representatives that have testified before us in our joint
hearing just recently.
The concerns have been raised about the adequacy of
training regarding to various immigration laws, the potential
of civil rights and civil liberties violations and the impact
on local immigrant communities.
One concern I have is that because of the 287 Program, some
immigrant groups have grown fearful of going to law enforcement
officers to be able to provide information, even on local law
enforcement issues.
The other concern I have is that this administration
continues to pass on federal responsibilities to protect the
homeland but falls short of providing support, and I mean
financial support. An example is state criminal alien
assistance programs, which reimburse states and local
governments for the cost that they incur for incarcerating
undocumented aliens.
Mr. Chairman, once again, I would like to ask unanimous
consent to be able to enter this chart into the record.
For the Rcord
Table 1: Post 9/11 Decreases in SCAAP Funding Reimbursement to States
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reductions
States FY 2001 FY 2002 FY 2003 FY 2004 Since 9/11
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama $334,040 $317,951 $109,483 $71,952 $262,088
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arizona 23,814,068 24,183,895 165,629 9,083,367 -14,730,701
--------------------------------------------------------------------------------------------------------------------------------------------------------
California 225,683,084 220,241,046 95,304,541 111,899,215 -113,783,869
--------------------------------------------------------------------------------------------------------------------------------------------------------
Florida 28,623,740 27,956,315 11,188,630 14,267,545 -14,356,195
--------------------------------------------------------------------------------------------------------------------------------------------------------
Illinois 14,396,351 15,788,246 5,476,520 3,338,261 -11,058,090
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Jersey 11,749,542 10,944,836 5,507,306 7,901,622 -3,847,920
--------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico 1,672,821 2,331,916 1,482,546 679,399 -993,422
--------------------------------------------------------------------------------------------------------------------------------------------------------
Texas 45,270,617 51,677,007 20,950,723 24,740,836 -20,529,781
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Developed by the Minority Staff of the Homeland Security Committee based on the Congressional Research Service's Analysis of SCAAP award data
compiled by the Department of Justice--BJA.
Mr. Rogers. Without objection.
Mr. Meek. Since 9/11, the appropriated funding to this
program has been decreased by 50 percent, going from $565
million in fiscal year 2001 to about $3 million in fiscal year
2004. And I think it is important we pay very, very close
attention to this federal program that has been decreased.
Rather than shifting the burden and throwing small amounts
of money to the state and local governments, the administration
needs to provide additional resources to the Department of
Homeland Security to carry out its mission of enforcing the
nation's immigration laws.
The 9/11 Act, which passed overwhelmingly in December, and
the president signed into law, calls for the number of Border
Patrol agents to be increased by 2,000 per year. The
Immigration and Custom Enforcement investigators should be
increased by 800 per year, and the number of detention bed
space to be increased by 8,000 per year. However, the
president's budget only covers a fraction of this commitment
and inadequate funding for the strategy.
This should be a part of a comprehensive risk-based
approach of protecting our homeland, and that is what
hopefully, Mr. Chairman, we will be able to come to today. The
Department needs additional ICE agents, Border Patrol resources
so that the Department of Homeland Security can effectively
carry out its mission so that we can do what the American
people have sent us here to do.
Mr. Chairman, I also have some additional comments as it
relates to this program, but I think it is important since we
passed the 9/11 bill, and I know that we join in on this
effort, of making sure that we provide the funding to federal
law enforcement officers, but also we are asking state and
local law enforcement officers to carry out federal duties that
we need to make sure that they have the resources to do so.
So I am glad to be here at this committee hearing, and I
look forward to our witnesses' testimony.
Mr. Rogers. Thank you.
The chair now recognizes the ranking member of the full
committee, the gentleman from Mississippi, Mr. Thompson, for
any statement he may have.
Mr. Thompson. Thank you very much, Mr. Chairman and Ranking
Member Meek. I want to welcome our guests here today who will
give their testimony to the committee.
Today's hearing focuses on two very important issues:
Assuring the integrity of America's border security and the
role of state and local law enforcement in enforcing federal
immigration laws.
The enforcement of the immigration laws are inherently
federal responsibility. Congress must thoroughly review any
program or proposal to shift this burden to state and local
governments.
Today's hearing examines the 287(g) Program. This program
permits state and local law enforcement officers to be trained
and deputized by the federal government to enforce civil
provisions of federal immigration laws.
Since this provision was passed in 1996, only Alabama,
Florida and Los Angeles County have chosen to participate in
this program.
Personally, Mr. Chairman, I wonder why so few states have
signed up for this program. Are there implications from
participation or lack of participation in this program?
Specifically, does it impact local budgets, adversely affect
relationships with immigration communities or burden agencies
in a manner that takes their focus off local crime priorities?
Concerns have been raised by many that state and local law
enforcement officials participating in the program are not
sufficiently trained or knowledgeable about the complex body of
our immigration laws to enable them to properly enforce them. I
am concerned that this may cause problems, such as confusion
over immigration laws, liability concerns, civil rights and
civil liberties violations, loss of immigration communities'
cooperation with law enforcement, which we all know is so
vitally important.
Before we place any additional federal responsibilities on
our state and local governments, we need to examine the
hundreds of other responsibilities that the government has
passed on to our state and local partners. We need to be
certain that we are not bringing states and localities to a
boiling point at a time when we need them most to protect the
homeland.
Although state and local law enforcement assistance
programs saw their funding decreased, as already been shown by
the ranking member's chart, there has continued to be that
steady decline.
Mr. Chairman, I look forward to the testimony, I look
forward to some assessment as to why other states and
localities have chosen not to participate in this program and
whether or not it has served its usefulness and should be
evaluated as to whether or not it should continue.
Thank you very much, Mr. Chairman. I yield back.
Mr. Rogers. Thank you. The gentleman yields back.
To make sure that we have a fuller picture of the funding
that you referenced, I would like to put into the record the
SCAT funding for all 50 states so that we can see how
comparable the numbers are that were submitted by the ranking
member. So without objection, those will be admitted to the
record.
We now are pleased to recognize our two distinguished
panels of witnesses before us today.
I would like to remind the witnesses that their entire
statements will be submitted for the record, so if you would
like to give a more abbreviated version verbally, your full
statement will be submitted for the record. And you will have
up to 5 minutes for your oral statements before you move on to
the next panelist.
The chair now calls the first panel and recognizes Mr. Paul
Kilcoyne, deputy assistant director of the Office of
Investigations, U.S. Immigration and Customs Enforcement, to
testify.
Mr. Kilcoyne?
STATEMENT OF PAUL KILCOYNE
Mr. Kilcoyne. Thank you very much.
Mr. Chairman and distinguished members of the committee,
thank you for the opportunity to speak to you today about the
important work that is being accomplished by U.S. Immigration
and Customs Enforcement, or ICE, in partnership with our state
and local enforcement.
ICE is aware of the critical role state and local law
enforcement has in the broad homeland security mission. State
and local law enforcement officers are not only the first
responders when there is an incident or attack against the
United States, but also during the course of their daily
duties, they may encounter foreign-born criminals and
immigration violators who could threaten our national security
or public safety.
Special agents assigned to 26 ICE field offices throughout
the United States coordinate the ICE response when notified by
state or local officials of ongoing criminal activity within
ICE's enforcement jurisdiction. ICE's law enforcement
jurisdiction is broad and is necessary to accomplish its
mission of protecting the United States and its people by
deterring and investigating threats arising from the movement
of people and goods into and out of the United States while
simultaneously addressing vulnerabilities to our nation's
borders and systems.
Under Section 287(g) of the INA, the Secretary of Homeland
Security has the authority to enter into formal written
agreements with state and local political jurisdictions to
authorize state and local law enforcement officers to perform
immigration enforcement functions.
The law requires that a written MOU be signed between the
parties. The MOU is comprehensive and defines the scope and
limitations of each authority to be exercised under Title 8. It
mandates a rigorous, multi-week training program that
encompasses immigration and naturalization law, statutory
authority, racial profiling and cultural awareness training,
which mirrors the training that ICE agents receive.
Each 287(g) MOU establishes the supervisory structure over
the state and local officers with authority and prescribes an
agreed upon complaint process governing officer conduct during
the life of the agreement.
ICE is expanding the use of 287(g) agreements as an
appropriate force multiplier into state and local jails. This
will have a significant impact on ICE's ability to identify and
remove criminal aliens from non-federal criminal justice
systems. ICE believes that the 287(g) Program will produce
enormous dividends when used within the state and local jail
systems.
State or local corrections officers with immigration
authority under the program and under ICE supervision could
identify, process and lodge detainers against criminal aliens.
Such a partnership between ICE and a jail could result in more
criminal aliens being removed from the United States.
I assure you of ICE's commitment to establishing and
maintaining effective partnerships and information sharing with
state and local law enforcement agencies. Such partnerships are
essential to carrying out ICE's mission of deterring criminal
activity and threats to the national security and public
safety.
We are very appreciative of the work of the many state and
local law enforcement officers who assist ICE's daily mission
and are pleased to be able to assist them primarily by
providing 24 by 7 access to the Law Enforcement Support Center
in Vermont, whose personnel query all available criminal record
and alien status databases.
The LESC is the focal point for the National Crime
Information Center, or NCIC Program, and has a permanent NCIC
unit dedicated solely to receiving, resolving and entering as
well as maintaining every record deemed eligible for entry into
NCIC.
ICE is committed to utilizing the NCIC as a way to inform
state and local law enforcement about wanted and fugitive
aliens. ICE has entered over 155,000 records into NCIC. At the
present time, the majority of those records are deported felons
but also include absconders and persons with outstanding ICE
criminal warrants.
There is a significant law enforcement information value in
the records that ICE is entering in NCIC. The information value
goes directly to issues of both public and officer safety. The
ICE NCIC information may be key in assisting state and local
law enforcement officers making the real-time critical
decisions that they are required to make every day.
Another way the LESC is working to facilitate the timely
flow of information to our state and local partners is through
an automated electronic notification to the LESC when a
criminal alien is booked into a county, state or local jail. An
electronic query is automatically sent to the LESC every time
an inmate claims foreign place of birth during the jail booking
process. This process is called Blind Booking and virtually
eliminates any claim of profiling.
Currently, there are seven jails utilizing the LESC blind
booking concept. They are Anaheim, San Diego and San Mateo in
California, El Paso and Travis Counties in Texas, Metro-Dade in
Florida and Maricopa jail in Arizona.
In those jails, detainers can be lodged directly by the
LESC with subsequent follow-up by local ICE officers. Blind
Booking quickly provides jails with important identity and
status information about criminal aliens in their custody and,
at the same time, assists ICE in its efforts to locate and
remove criminal aliens from the United States.
In closing, I would like to reemphasize that the future of
the 287(g) Delegation of Authority Program will better serve
the people of the United States and ICE's mission being
utilized in the nation's prisons and jails. This will allow ICE
to maximize the potential of the 287(g) Program by increasing
the number of incarcerated criminal aliens identified and
removed from the United States.
I want to thank this committee for the opportunity to speak
to you today, and I look forward to answering any questions you
may have.
[The statement of Mr. Kilcoyne follows:]
Prepared Statement of Paul M. Kilcoyne
Mr. Chairman and distinguished members of the committee. Thank you
for the opportunity to speak to you today about the important work that
is being accomplished by U.S. Immigration and Customs Enforcement (ICE)
in partnership with state and local law enforcement. ICE is aware of
the critical role state and local law enforcement has in the broad
homeland security mission. State and local law enforcement officers are
not only the first responders when there is an incident or attack
against the United States, but, also, during the course of their daily
duties they may encounter foreign-born criminals and immigration
violators who could threaten our national security or public safety.
ICE recognizes that critical role and partners with state and local law
enforcement agencies nationally and locally through a variety of
arrangements that increase the overall effectiveness of federal, state
and local law enforcement and our joint ability to protect the
homeland.
Special Agents assigned to 26 ICE field offices throughout the
United States coordinate the ICE response when notified by state or
local officials of ongoing criminal activity within ICE's enforcement
jurisdiction. ICE's law enforcement jurisdiction is broad and the
mission of protecting the United States and its people by deterring and
investigating the movement of people and goods into and out of the
United States and apprehending illegal aliens within the United States,
while simultaneously addressing vulnerabilities to our Nation's borders
and systems.
ICE recognizes that combating terrorism and criminal activity is
best accomplished from a multi-agency/multi-authority approach that
encompasses federal, state and local resources, skills and expertise.
In addition to direct enforcement actions, ICE believes sharing
information with our state and local partners in law enforcement is a
critical component of the vision of the DHS and ICE to ensure the
safety of the United States and the American people.
ICE has provided a wide variety of training opportunities for state
and local law enforcement officers. Before the formation of the
Department of Homeland Security (DHS), the Immigration and
Naturalization Service cooperated with the International Association of
Chiefs of Police (IACP) to provide a two-day field-training course
``Responding to Alien Crime.'' This course provided information
concerning criminal aliens to law enforcement agencies throughout the
United States. In 2003, ICE produced a new video training course in
cooperation with the IACP. Over 250 law enforcement officers in Phoenix
and Sierra Vista, Arizona; Dallas, Texas; Philadelphia, Pennsylvania
and Miami, Florida attended the new course. Also in 2003, ICE provided
a basic block of instruction in immigration law and procedures to 654
Alabama State Troopers. Sixteen classes were held in seven different
locations. That instruction was given in preparation for implementation
of a Section 287(g) agreement with the State of Alabama to allow
certain State Troopers to perform immigration enforcement functions
under ICE supervision.
Under Section 287(g) of the Immigration and Nationality Act (INA),
the Secretary of Homeland Security has the authority to enter into
formal written agreements with state and local political jurisdictions
to authorize state and local law enforcement officers to perform
immigration enforcement functions. The law requires that a written
Memorandum of Understanding be signed between the parties. All selected
law enforcement officers must receive the appropriate training in
immigration law and procedure and must be individually certified. ICE
must supervise all selected officers when they are using their
immigration authority under Section 287(g). Properly constructed,
mutually agreed upon Section 287(g) agreements are a dynamic, yet
closely monitored force multiplier for ICE in its commitment to protect
America's communities.
The written agreement in the form of a Memorandum of Understanding
is the keystone to the effective execution of Section 287(g). It must
be comprehensive and define the scope and limitations of each authority
to be exercised under Title 8. It mandates a rigorous, multi-week
training program that encompasses immigration and naturalization law,
statutory authority, racial profiling and cultural awareness training,
which mirrors the training that ICE agents receive. It establishes the
supervisory structure over the officers with authority under Section
287(g) and prescribes an agreed-upon complaint process governing
officer conduct during the life of the agreement.
After September 11, Florida officials were increasingly concerned
about the number of terrorist related cases in Florida, many involving
foreign nationals, and established seven Regional Domestic Security
Task Forces throughout the state. In 2002, the Florida Department of
Law Enforcement entered into the first Section 287(g) agreement.
Thirty-five officers assigned to the regional task forces participated
in an extensive training program, graduated and were certified to
perform the duties of immigration officers. In April 2005, ICE
completed the second 287(g) Delegation of Authority course, under the
existing Florida MOU. ICE trained and cross-designated 27 law
enforcement officers from various agencies throughout the State of
Florida. This agreement has been successful and productive. The Florida
task forces have conducted over 170 investigative cases and recorded
numerous arrests.
Building on the success of the Florida agreement, ICE and the State
of Alabama signed a written agreement in September 2003 to provide
immigration enforcement authority to a selected group of 21 Alabama
State Troopers. Like their Florida colleagues, those troopers received
extensive training in immigration and nationality law and procedure at
the DHS Center for Domestic Preparedness in Anniston, Alabama. They are
now certified and have the authority to perform immigration enforcement
functions incidental to their normal duties as patrol officers or at
driver licensing stations. They are also trained and certified to
transport and detain aliens unlawfully present in the United States.
ICE has expanded the use of Section 287(g) Delegation of Authority
agreement as an appropriate force multiplier into state and local
systems. This will have a significant impact on ICE's ability to
identify and remove criminal aliens from the non-federal criminal
justice system. ICE believes that the 287(g) Delegation of Authority
program will produce enormous dividends when used within the state and
local jail systems. State or local correctional officers, with
immigration authority under Section 287(g) and under ICE supervision,
could identify, process and lodge detainers against criminal aliens.
Such a partnership between ICE and a jail could result in more criminal
aliens being removed from the United States.
I assure you of ICE's commitment to establishing and maintaining
effective partnerships and information sharing with state and local law
enforcement agencies. Such partnerships are essential to carrying out
ICE's mission of deterring criminal alien activity and threats to
national security and public safety in the United States. We are very
appreciative of the work of the many state and local law enforcement
officers who assist ICE daily in its mission and we are pleased to be
able to assist them.
ICE maintains a vast repository of immigration related information.
ICE will continue to share that information with all of our partners in
law enforcement. In fiscal year 2004, the ICE Law Enforcement Support
Center (LESC) provided immigration related information requested by our
state and local law enforcement partners and federal colleagues on
nearly 668,000 occasions. This represents an increase of over 73,000
responses from the previous fiscal year. The LESC regularly responds to
over 60,000 queries per month.
The LESC is the vital ICE point of contact with our country's
entire law enforcement community. The LESC is on the cutting edge of
the federal effort to share critical enforcement information with
state, county, local and even international law enforcement officers.
It provides timely immigration status and identity information and
real-time assistance to local, state and federal law enforcement
agencies on aliens suspected, arrested or convicted of criminal
activity. The LESC operates 365 days a year, 24 hours a day, 7 days a
week assisting law enforcement agencies with information gathered from
8 immigration databases, the National Crime Information Center (NCIC),
the Interstate Identification Index (III) and other state criminal
history indices. Access to the LESC is fully electronic and uses the
same telecommunications system--NLETS--familiar to and used by all of
law enforcement for over three decades. Responses to requests for
information sent to the LESC are routinely received and returned within
an hour. Since the LESC was established in 1994, the primary users have
been state or local law enforcement officers seeking information about
aliens encountered in the course of their daily duties. The rapidly
growing number of queries submitted and answered by the LESC
demonstrates its acceptance and effectiveness in the law enforcement
community.
The merging of 22 agencies and bureaus into the Department of
Homeland Security provides new access to law enforcement databases that
will now be used by the LESC to significantly broaden its enforcement
capabilities. For example, the LESC now has access to intelligence
information from multiple DHS databases, including SEVIS and US VISIT.
This will improve the LESC's ability to provide timely, critical
information to state and local law enforcement agencies around the
Nation, as well as to international enforcement agencies.
The LESC is also the focal point for the ICE NCIC program and has a
permanent NCIC unit dedicated solely to receiving, resolving, entering
and maintaining every record deemed eligible for entry into NCIC. ICE
is committed to utilizing NCIC as a way to inform state and local law
enforcement about wanted and fugitive aliens. ICE has entered over
155,000 records in NCIC. At the present time, the majority of those
records are deported felons, but they also include persons with
outstanding ICE criminal warrants, a small number of National Security
Entry-Exit Registration System (NSEERS) violators and absconders.
There is significant law enforcement information value in the
records that ICE is entering in NCIC. That information value goes
directly to issues of public and, specifically, officer safety. The ICE
NCIC information may be key in assisting state and local law
enforcement officers make the real time critical decisions that they
are required to make every day. ICE has recently consolidated and
enhanced its response to state and local law enforcement agencies
seeking assistance in immigration related enforcement matters,
including requests for NCIC hit confirmations, status and identity
information and assistance in instances of suspected over-the-road
alien smuggling.
Additionally, the LESC provides training to state, local and other
federal law enforcement officers on how to access its information and
on ICE roles and responsibilities. The LESC is currently developing an
Office of Law Enforcement Liaison that will have among its
responsibilities providing training to law enforcement nationwide. In
the last 24 months, LESC agents trained federal, state and local law
enforcement officers in Alabama, Arkansas, Arizona, California, the
District of Columbia, Florida, Georgia, Idaho, Maryland, Minnesota,
Mississippi, Nevada, New York and Texas.
Another way the LESC is working to facilitate the timely flow of
information to our state and local partners is through an automated
electronic notification to the LESC when a criminal alien is booked
into a state, county or local jail. An electronic query is
automatically sent to the LESC every time an inmate claims foreign
place of birth during the jail booking process. This process is called
``Blind Booking'' and virtually eliminates any claim of profiling.
Currently, there are seven jails utilizing the LESC's ``Blind Booking''
concept. They are: Anaheim, San Diego and San Mateo in California; El
Paso and Travis Counties in Texas; Metro-Dade in Florida and Maricopa
County, Arizona. In those jails, detainers can be lodged directly by
the LESC with subsequent follow-up by local ICE officers. In some of
those jails, ICE officers assigned to dedicated jail units interview
individuals identified through the automated booking process. ``Blind
Booking'' quickly provides jails with important identity and status
information about criminal aliens in their custody and, at the same
time, assists ICE in its efforts to locate and remove criminal aliens
from the United States.
ICE and DHS coordination with law enforcement around the country
has expanded significantly since September 11.
Another unique ICE asset, the ICE Forensic Documentary Laboratory
(FDL), also serves the needs of state and local law enforcement and our
federal colleagues. The FDL provides a wide variety of forensic and
intelligence services in support of the DHS mission to enforce
immigration laws and combat document fraud. The FDL is unique among
Federal crime laboratories both in its dedication to the forensic
examination of documents, and its integration of an operational
intelligence and training capability. In addition to directly
supporting DHS field officers, it also offers its services to other
federal, foreign, and state and local governmental entities. For
example, the FDL has performed forensic document and fingerprint
examinations for numerous state and local police agencies, Departments
of Motor Vehicles, and local prosecutors' offices. The FDL has also
provided training in fraudulent document recognition to the
International Association of Chiefs of Police (IACP), state and local
police agencies, and motor vehicle departments. The FDL developed the
Guide to Selected U.S. Travel and Identity Documents (M-396), a highly
instructive pocket guide for state and local law enforcement and other
governmental personnel who encounter immigration and other U.S.
documents.
In closing, I would like to re-emphasize that the future of the
287(g) Delegation of Authority Program will better serve the people of
the United States and ICE's mission being utilized in the Nation's
prison and jails. This will allow ICE to maximize the potential of the
287(g) Program by increasing the number of incarcerated criminal aliens
identified and removed from the United States.
I want to thank the distinguished members of this Committee for the
opportunity to speak before you today. I look forward to answering any
questions you may have.
International Association of Chiefs of Police
Enforcing Immigration Law: The Role of State, Tribal and Local Law
Enforcement
The September llth attacks have affected the manner in which law
enforcement agencies view their responsibilities and duties. In the
ensuing two years, state and local law enforcement agencies have done a
magnificent job in meeting the challenges presented by this new
reality, and we have done much to make our communities and our citizens
safer and more secure.
Law enforcement has used a variety of methods, including increased
cooperation with federal law enforcement, reassement of current
training and patrol methods, and greater communication and intelligence
sharing between and among law enforcement agencies.
But the specter of foreign terrorists has also brought the state
and local law enforcement community face-to-face with a critical and
fundamental question that will likely help shape the way we police our
communities: namely, what role should state and local law enforcement
play in the enforcement of federal immigration laws?
Significantly, in the 111-year history of the IACP, the membership
has never adopted a resolution or policy position 011 this vital
question. The reason for this silence is clear. There is a significant
difference of opinion in the law enforcement profession on this issue.
Many law enforcement executives believe that state and local law
enforcement should not be involved in the enforcement of civil
immigration laws since such involvement would likely have a chilling
effect on both legal and illegal aliens reporting criminal activity or
assisting police in criminal investigations. They believe that this
lack of cooperation could diminish the ability of law enforcement
agencies to effectively police their communities and protect the public
they serve.
Other law enforcement executives believe that it is appropriate for
state and local law enforcement to play an active role in immigration
enforcement because individuals who are in the country illegally have
violated the law and should be treated in the same fashion as other
criminals. They feel that it is the duty of state and local law
enforcement to assist the federal government and to apprehend and
detain these individuals.
Both viewpoints raise valid arguments and it is easy to understand
why no consensus has been reached and no policy position has been
adopted by the IACP.
This document is not intended to rule on this fundamental
philosophical question. It is the IACP's belief that the question of
state, tribal or local law enforcement's participation in immigration
enforcement is an inherently local decision that must be made by a
police chief, working with their elected officials, community leaders
and citizens.
Instead, this issue brief was prepared to provide background
information on the current status of immigration enforcement efforts,
examine the concerns and obstacles that currently hinder enforcement
efforts by the state, tribal and local law enforcement community, and
to set forth the elements necessary to secure the support of the IACP
for legislative proposals addressing the question of immigration
enforcement by non-federal law enforcement agencies.
Background Information:
Immigration & Illegal Aliens in the United States
At the outset, it is important to note that state, tribal and local
police are not required to enforce federal immigration laws. The
federal government and its agencies are the authorities responsible for
enforcement of immigration law. With this authority, the federal
government has enacted laws, such as the Immigration and Naturalization
Act (INA), that regulate a person's entry into the United States, his
or her ability to remain in the country, and numerous other aspects of
immigration.
The following is a brief review of the most common status
classifications.
(1) Legal Immigrants & Visa Holders:
Immigrants are citizens of other countries who have
been granted a visa that allows them to live and work
permanently in the United States and to become
naturalized U.S. citizens. Immigrant visas are normally
issued to foreigners at U.S. consulates in their home
countries. Along with a foreign passport, the visa
entitles them to enter the United States. Once here,
immigrants receive a card from the INS indicating they
are permanent residents. This card used to be green, so
that immigrants are still referred to frequently as
``greencard holders.''
Refugees are persons outside their country of
citizenship who fear persecution based on race,
religion, nationality, membership in a particular
social group, or political opinion if they return. Some
are resettled every year in the United States: the
total number is determined annually by the President in
consultation with Congress. Asylum applicants arrive in
the United States and request safe haven here: their
number depends on how many aliens show up asking to be
recognized as refugees
Nonimmigrant visa holders are persons who are granted
temporary entry into the United States for a specific
purpose, such as visiting, working, or studying. The
U.S. has 25 types of nonimmigrant visas, including A1
visas for ambassadors, B2 visas for tourists, P1 visas
for foreign sports stars who play on U.S. teams and TN
visas for Canadians and Mexicans entering the U.S. to
work under NAFTA.
(2) Illegal Aliens
Illegal aliens are foreign nationals who have entered the U.S.
without any legal status. The most common ways are by either
crossing a land or sea border without being inspected by an
immigration officer, or simply by violating the terms of a
legal entry document. Legal aliens are entitled to enter and
remain in the U.S. as long as they maintain the terms of their
status.
(3) Alien Absconders
Alien absconders are foreign nationals who entered the United
States legally but have since violated the conditions of their
visa and who have had a removal, deportation, or exclusion
hearing before an immigration judge and are under a final order
of deportation and have not left the United States.
It is currently estimated that there are between 8-10 million
illegal aliens living in the U.S., with another estimated 800,000
illegal aliens entering the country every year. Of this total, the
Department of Homeland Security has estimated that 450,000 are ``alien
absconders''. Finally, an estimated 86,000 are criminal illegal
aliens--people convicted of crimes committed in the U.S. and who should
have been deported but have, through a variety of reasons, remained in
the United States.
Obstacles/Concerns over
Local Involvement in Immigration Enforcement
Confusion Over Immigration Laws: Criminal Versus Civil Violations
Immigration laws differ from the criminal laws local police
officers deal with most regularly in that immigration laws contain both
civil and criminal aspects. For example, an illegal entrant into the
United States has committed a federal felony violation, and state and
local law enforcement officers are legally empowered to arrest and
detain the individual. However, legally admitted aliens who have
overstayed their visas have committed a civil violation, and state and
local police have no authority to arrest and detain them.
Therefore, the IACP is greatly concerned that if the names of
314,000 deportable aliens are placed into the NCIC system without the
benefit of a felony warrant being issued for their arrest, state and
local law enforcement officers will be placed in the position of being
asked to detain and arrest these individuals without possessing the
proper authority to do so.
This situation concerns some in the law enforcement community who
fear that immigration enforcement by state and local police could lead
the government to burden state and local agencies with enforcement of
still other federal civil violations.
Training Requirements
Currently, state and local police do not have the training or
expertise to enforce immigration laws, and in this time of shrinking
local budgets, many executives feel they do not have the resources to
tackle this additional federal issue. There are federal agencies
specifically charged with the enforcement and application of the
complex immigration laws and regulations. These agents do not handle
street disorder, robberies, murders, traffic problems, and a host of
other issues facing state and local officers. These federal agencies
are designed, and their agents are specifically trained, to enforce
these immigration laws.
Addressing immigration violations such as illegal entry or
remaining in the country without legal sanction would require
specialized knowledge of the suspect's status and visa history and the
complex civil and criminal aspects of the federal immigration law and
their administration. This is different from identifying someone
suspected of the type of criminal behavior that local officers are
trained to detect. Whether or not a person is in fact remaining in the
country in violation of federal civil regulations or criminal
provisions is a determination best left to these agencies and the
courts designed specifically to apply these laws and make such
determinations after appropriate hearings and procedures. Without
adequate training, local patrol officers are not in the best position
to make these complex legal determinations.
Limitations on Arrest without a Warrant
Local police agencies must also comply with the laws of their own
states. These laws may limit their ability and authority to detain and
arrest persons on suspicion of being in the country in violation of
federal laws. These limitations may have little to do with immigration
specifically but more general police powers, such as the power to
arrest without a warrant.
The fact that state law may not authorize local police to detain
persons for illegal immigration is recognized by the federal agencies
as shown by the language of some of the civil detention notices
currently being placed on the NCIC system. These notices to detain
include the qualifiers ``If permitted by state and local law' and ``If
permitted in your jurisdiction.'' Federal immigration officers do not
face such restrictions, because the federal immigration laws allow them
to detain and interrogate a person as to their right to be or remain in
the United States without a warrant.
Liability Concerns
When local police have waded into immigration enforcement, it has
often come with disastrous and expensive consequences. To list just one
example, in 1994 the police in Katy, Texas, conducted raids in search
of illegal immigrants. More than 80 of those persons temporarily
detained were Hispanics who were either U. S. citizens or foreign
nationals who were in the country legally. The Katy Police Department
faced numerous lawsuits alleging civil rights violations.
This example illustrates the legal risk that law enforcement
agencies and officers are exposed to when they attempt, in good faith,
to enforce federal immigration law.
Chilling Effects on Immigrant Cooperation
Immigration enforcement by state and local police could have a
chilling effect in immigrant communities and could limit cooperation
with police by members of those communities. Local police agencies
depend on the cooperation of immigrants, legal and illegal, in solving
all sorts of crimes and ill the maintenance of public order. Without
assurances that .they will not be subject to an immigration
investigation and possible deportation, many immigrants with critical
information would not come forward, even when heinous crimes are
committed against them or their families. Because many families with
undocumented family members also include legal immigrant members, this
would drive a potential wedge between police and huge portions of the
legal immigrant community as well.
This will be felt most immediately in situations of domestic
violence. For example, many law enforcement agencies have been
addressing the difficult issues related to domestic abuse and the
reluctance of some victims to contact the police. This barrier is
heightened when the victim is an immigrant and rightly or wrongly
perceives her tormentor to wield the power to control her ability to
stay in the country. The word will get out quickly that contacting the
local police can lead to deportation or being separated by a border
from one's children. Should local police begin enforcing immigration
laws, more women and children struggling with domestic violence will
avoid police intervention and help.
IACP Position:
Legislation Addressing Immigration Enforcement
Given the concerns and obstacles outlined above, .the IACP believes
that at a minimum, any legislation seeking to have state and local law
enforcement agencies participate in immigration enforcement must
contain the following essential elements.
Voluntary:
Because the question of state, tribal or local law enforcement's
participation in immigration enforcement is an inherently local
decision, the IACP believes that any legislative proposal to enlist the
assistance of non-federal agencies in immigration enforcement must be
based on the completely voluntary cooperation of statellocal law
enforcement agencies.
Therefore, any legislative proposals that seek to coerce
cooperation through the use of sanction mechanisms that would withhold
federal assistance funds from states or localities is unacceptable to
the IACP.
Authority Clarification:
In order to clarify the authority of state, tribal and local law
enforcement to act in matters related to immigration enforcement, it is
necessary for the federal government to issue a clear and complete
statement that outlines the role of state, local and tribal law
enforcement agencies in this effort and enumerates the legal authority
of state, local and tribal law enforcement officers to act in these
matters.
In addition, in cases involving aliens with civil violations, it is
the IACP's belief that if the federal government wants to have state
and local law enforcement officers apprehend and detain these
deportable aliens, then it must first secure a federal criminal arrest
warrant for these individuals. In this fashion, state and local law
enforcement officers will be certain that the actions they take in
dealing with these individuals is consistent with their legal authority
and the policies of their agencies.
Incentive Based Approach
Legislative proposals addressing immigration enforcement should
provide law enforcement agencies with an incentive to perform
immigration enforcement. Under such an incentive based approach,
agencies that agree to perform immigration enforcement activities as
set forth in the legislation would be eligible to receive federal
assistance funds that may be used for a variety of uses related to
immigration enforcement. For example, agencies should be authorized to
use these funds to:
(1) Cover the personnel costs associated with the enforcement
effort.
(2) Cover the costs of training programs for their law
enforcement officers.
(3) Cover the costs associated with housing and transportation
of these individuals prior to their release into federal
custody.
Liability Shield:
Legislative proposals addressing immigration must provide:
(1) Personal liability immunity to state, tribal and local law
enforcement officials for enforcing federal immigration laws
within the scope of their duties.
(2) Immunity for state, tribal or local agencies enforcing
immigration laws unless their personnel violated criminal law
in such enforcement.
Training Resources: The legislation should also ensure that the federal
government will provide the financial assistance necessary to develop
and provide a training program for state, local and tribal law
enforcement officers 011 federal immigration law and how they should
respond when they encounter suspected illegal aliens and absconders.
(However, specific-training requirements, including the number of hours
or topics to be covered, should be the responsibility of law
enforcement administrators, who should design training programs
appropriate to their agencies.)
Mr. Rogers. Thank you, Mr. Kilcoyne.
The chair now recognizes Mr. Mark Dubina, special agent
supervisor, Tampa Bay Regional Operations Center, Florida
Department of Law Enforcement, Regional Domestic Security Task
Force supervisor, for your statement.
STATEMENT OF MARK DUBINA
Mr. Dubina. Mr. Chairman and distinguished members of the
committee, I would like to begin by thanking this committee for
the opportunity to represent the state and local officers
throughout Florida who are designated to serve in the first of
its kind 287(g) Cross-Designation Program.
After the atrocities of September 11, 2001, the state of
Florida quickly assessed its ability to detect and respond to
domestic security and terrorist events. From these efforts, the
state of Florida created seven Regional Domestic Security Task
Forces.
In November 2001, the Florida legislature met in special
session and codified the Domestic Security Task Force structure
in statute. Their mission is to employ the coordinated
resources of various local, state and federal agencies to
prevent, preempt and disrupt any terrorist attack or other
domestic security threats within the state of Florida or in the
event of such an attack they can respond to the incident--
Mr. Rogers. Excuse me, Mr. Dubina, could you pull your
microphone a little bit closer? We cannot hear you.
Mr. Dubina. Is that better?
Mr. Rogers. There you go.
Mr. Dubina. Starting again, their mission is to employ the
coordinated resources of various local, state and federal
agencies to prevent and preempt or disrupt any terrorist attack
or other domestic security threats within the state of Florida
or in the event of an attack, to effectively respond to the
incident to facilitate recovery and investigations.
At the time, it was quite apparent that these RDSTF law
enforcement components could become force multipliers for
limited legacy INS officers to address immigration issues with
a potential nexus to terrorism. In December 2001, INS and FDLE
leadership met to discuss the concept of using the provisions
of Section 287(g) and consensus was reached as to the need for
such a program.
The initiative proposal led to a final memorandum of
understanding which was signed by the United States Attorney
General Ashcroft, Governor Bush, INS Commissioner Ziegler and
FDLE Commissioner Moore in July 2002. In December 2003, this
MOU was renewed and signed by Department of Homeland Security
Undersecretary Hutchinson and Florida Governor Bush.
The MOU outlines a number of terms and conditions for this
287(g) authority. Implementing the provisions of the MOU began
during April 2002. Soon after, the Immigration Officer Academy
crafted a 6-week training course featuring the delegation of
authority curriculum. On July 9, 2002, the first ever Section
287(g) training course began. The training was tough and
thorough. On August 15, 2002, the course graduated all 35
participants.
The state of Florida, through the RDSTFs expended
considerable energy and time communicating the purpose of the
program to various ethnic groups. Some cultural groups
expressed concerns related to any INS authority being delegated
to state and local officers. The Office of the Governor, the
RDSTFs and legacy INS diligently worked to produce an
informative brochure that explained in simple terms and
multiple languages the mission of the program.
Further, all parties held open meetings and used media
outlets to communicate exactly what Florida's intentions were
with this program to the ethnic groups with concerns, including
community and religious leaders. I am proud to say on behalf of
all the regions we have adhered to the spirit and letter of the
MOU.
I cannot overemphasize the highly focused nature of the
Florida initiative. In all cases, the ICE team leader to the
RDSTF, the FDLE special agent supervisor and the local ICE
immigration supervisor must agree on a decision to arrest or
detain a person, pursuant to 287(g) authority. We also mutually
share and understand the concerns of our community and the
participating agencies. As of today, not one formal complaint
has been filed with FDLE related to this program.
Florida strongly supported an additional 287 delegation of
authority training program, and in March of this year a second
class was convened. During April, the ICE Academy graduated 27
additional task force agents, and they were deployed back into
the regions.
To date, the 287(g) initiative arrests cover a broad
spectrum of activity. We have detained single individuals
involved in what appears to be surveillance activities in
sensitive locations. We have also conducted extensive
investigations that have resulted in illegal aliens being
apprehended working in restricted or secured areas of airports,
seaports and nuclear plants.
In those cases where an immigrant is cleared of suspicion
but still has immigration issues, the subject is afforded the
same consideration as any illegal alien not encountered under
these circumstances.
Ironically, this training and experience has proven to be a
benefit to the immigrant communities they serve because the
agents are more readily able to clear a person that is
suspected of suspicious activity by having access to the wealth
of information contained in ICE databases and training
curriculum.
As with all preventive measures, we will never know for
sure just how many terrorists or other criminal operations we
have disrupted or impacted; however, we can state that our
commitment to follow all leads from citizens, the private
sector and other government agencies continues in a diligent
and organized manner.
Additionally, participating agencies have recognized this
authority, coupled with appropriate training and oversight,
adds value to their organizations.
In closing, Florida strongly supports the continuation of
the 287(g) Cross-Designation Program. Again, thank you for this
tremendous opportunity, and I look forward to your questions.
[The statement of Mr. Dubina follows:]
Prepared Statement of Mark F. Dubina
Mr. Chairman and distinguished Members of the Committee. I would
like to begin by thanking this Committee for the opportunity to
represent the state and local officers throughout Florida, who are
designated to serve in the first of its kind 287(g) Cross Designation
Program. All of these men and women have served on Florida's Regional
Domestic Security Task Forces, and are committed to a partnership with
federal law enforcement to ensure the domestic security of the citizens
and visitors in the State of Florida. These partnerships are vital in
creating bonds that allow law enforcement at all levels to work
together against future terrorist attacks targeting the State of
Florida and our nation.
Please allow me to start with a history of the 287(g) Cross
Designation Program in Florida. After the atrocities of September 11,
2001, the State of Florida quickly assessed its abilities to detect and
respond to domestic security and terrorist events. Governor Jeb Bush
directed Florida Department of Law Enforcement (FDLE) and Department of
Emergency Management (DEM), to lead Florida's efforts in determining
its preparedness. Within one month, over 1,000 agencies including Law
Enforcement, Fire, Emergency Management, Health and the private sector
were polled in this project. From these efforts, the State of Florida
created seven Regional Domestic Security Task Forces (RSDTF's),
generally coinciding with the geographic areas served by existing FDLE
Regional Operations Centers. These task forces have served as the
cornerstone of Florida's domestic security and anti-terrorism efforts
since that time, and have achieved great success.
In November 2001, the Florida Legislature met in special session
and codified the domestic security task force structure into statute.
These task forces serve under the policy direction of a multi-
disciplined oversight council, and at the regional level are co-chaired
by a sitting Sheriff and the FDLE Special Agent in Charge serving that
region. Their mission is to employ the coordinated resources of various
local, state and federal agencies to prevent, preempt and disrupt any
terrorist attack or other domestic security threats within the State of
Florida; or, in the event of such an attack, to effectively respond to
the incident to facilitate recovery and investigation. The law
enforcement component of the Regional Domestic Security Task Force is
coordinated by the FDLE. As stated, the RDSTF is comprised of law
enforcement, fire/rescue, medical, emergency response and preparedness
components. Law enforcement is the discipline responsible for
coordinating with Federal authorities regarding enforcement efforts
concerning immigration violations. It was quite apparent, based upon
the nature of the 9/11 attacks and the limited Federal immigration
resources in Florida at that time, that these RDSTF law enforcement
components could become force multipliers to address immigration issues
with a potential nexus to terrorism.
The current ICE/RDSTF initiative evolved from a previous FDLE
request to allow state law enforcement personnel to have direct access
to the Legacy Immigration and Naturalization Service (INS) record
systems and databases. In December 2001, the INS Assistant District
Director for Investigations (ADDI) and FDLE leadership met to discuss
the concept of using the provisions of Section 287(g) and consensus was
reached as to the need for such a program.
The initial proposal consisted of employing the time-proven, multi-
agency law enforcement task force approach, combined with the
delegation of authority provisions of Section 287(g) of the Immigration
and Nationality Act (INA). The initiative would designate a cadre of
RDSTF-assigned state and local law enforcement officers who would be
trained by INS in immigration law enforcement matters. INS enforcement
authority would be delegated to those officers under Section 287(g) and
they would work under the direct supervision of an INS Supervisor and
the assigned RDSTF Special Agent Supervisor.
The vetted 287(g) initiative was presented to Governor Bush, who
concurred and directed FDLE to immediately pursue implementation.
Shortly thereafter, Governor Bush presented the concept to Legacy INS
Commissioner Ziglar and Attorney General Ashcroft in Washington, both
of whom agreed the initiative should go forward.
Legacy INS administrators began an in-service campaign to present
the initiative proposal to the various levels of the Legacy INS command
structure. These efforts, given the first-time and highly unique nature
of the proposal, were often problematic. However, with the Legacy INS
Commissioner's approval already a given, the initiative was accepted by
the Legacy INS command at the Eastern Regional Office and Headquarters.
With these conceptual approvals, members of the Legacy INS Office
of Investigations (Miami) began working closely with FDLE to produce a
draft written proposal for submission to INS Headquarters. After
several revisions, a formal initiative proposal was finalized and
ultimately approved by INS, DOJ and FDLE. The initiative proposal led
to the finalization of a Memorandum of Understanding (MOU) which, after
additional revision, was signed by United States Attorney General
Ashcroft, Governor Bush, Commissioner Ziglar and Commissioner Moore in
July 2002. In December 2003, this Memorandum of Understanding was
renewed and signed by Department of Homeland Security Under Secretary
Hutchinson and Florida Governor Bush.
The Memorandum of Understanding (MOU) outlines a number of terms
and conditions for this 287(g) authority. The foundation for these
terms is that all investigative efforts must have a nexus to domestic
security and counter terrorism. Other key terms included that all
Regional Domestic Security Task Force members assigned to the 287(g)
Program had to commit to serve a minimum of one year under this
authority. All members were subject to a full background not only from
the RSDTF, but also INS/ICE. They further had to attend and pass
proficiency testing provided by INS/ICE.
Implementing the provisions of the MOU began during April 2002 when
Legacy INS Investigations selected seven Acting Supervisory Special
Agents (ASSA's) and posted them in the seven RDSTF locations. The
assigned ASSA's immediately engaged in operational liaison and local
training efforts with the RDSTF. They also began initiating cases and
making arrests in conjunction with the RDSTF. This spirit of
cooperation was crucial during the initial phases of the program.
Soon thereafter, the Immigration Officer Academy crafted a six-week
training course featuring the delegation of authority curriculum.
Legacy INS and FDLE, working with law enforcement agencies
participating in the RDSTF, finalized the selection of 35 veteran law
enforcement investigators as the initial cadre of delegated-authority
officers.
On July 9, 2002 the first-ever Section 287(g) training course
began. The course covered immigration and nationality law, immigration
criminal laws, removal statutes, civil rights, cultural diversity,
alien processing, INS structure and record systems and employed the
same testing criteria and techniques as basic Immigration Officer
Training. On August 15, 2002, the course graduated all 35 participants,
who then returned to their assigned RDSTF locations and became
operational.
During this formative period, the State of Florida, through the
RSDTF's, expended considerable energy and time communicating the
purpose of the program to various ethnic groups. This program received
considerable publicity in Florida during its development in part
because this was a new concept, but also due to Florida's highly
diverse population and migrant farming communities. Some cultural
groups expressed concerns related to any INS authority being delegated
to state and local officers. The Office of the Governor, the RSDTF's
and Legacy INS diligently worked to communicate exactly what Florida's
intentions were with this program to the ethnic groups with concerns,
including community and religious leaders representing Hispanics,
Haitians and persons from countries in the Middle East. All
participating agencies collaborated on, and later produced, an
informative brochure that explained in simple terms, and multiple
languages, the mission of the program. Additionally, we did not miss an
opportunity to communicate our message via the print, radio and
television media. I am proud to say on behalf of all the regions we
have adhered to the spirit and letter of our MOU. Within this program
there have been no examples where persons have been arrested or
detained that were not directly related to a domestic security
complaint or focused investigation. I cannot over emphasis the highly
focused nature of the Florida initiative. In all cases, the ICE Team
Leader to the RDSTF (formerly the INS ASSA), the FDLE Special Agent
Supervisor and the local ICE Immigration Supervisor must agree on a
decision to arrest or detain a person pursuant to the 287(g) authority.
We respect individual rights and abide by all applicable state and
federal law. We also mutually share and understand the concerns of our
community and the participating agencies. Additionally, proactive
criminal investigations involving the United States Attorney's Office
receive further review to assure compliance with all applicable Federal
laws and procedures. As of today, not one formal complaint (a procedure
is provided for within the MOU) has been filed with FDLE related to
this program.
The reorganization of a number of federal agencies including INS
into the Department of Homeland Security presented some challenges to
our 287(g) Program. Not only has the Department of Homeland Security
undertaken the massive responsibility of deciding appropriate roles and
relationships within its structure, the Florida Department of Law
Enforcement itself in October 2003 received a new Executive Director,
Commissioner Guy Tunnell. During the months between September and
December 2003, no direct action could be taken by our Cross Designated
agents, as the Memorandum of Understanding was under revision and had
not yet been finalized. In the Tampa Region, we carried on by working
with the ICE Special Agent in Charge and his colleagues. I am proud to
say that our previous accomplishments and established relationships
served us well during this transition, and we continue to reap the
benefits of these focused and highly coordinated efforts.
Florida strongly supported an additional 287(g) Delegation of
Authority Training Program, and in March of this year a second class
was convened. During April, the ICE Academy graduated twenty-seven (27)
additional Task Force Agents that were deployed back into the regions.
Immediately following the graduation, senior leadership from FDLE and
ICE met to discuss the future of the program. Each Region was directed
to assess the current state of the program and develop a plan for
continued operations. In Tampa Bay, regional ICE and FDLE leadership
decided to continue to focus on areas that had provided value in the
past. Proactive investigations concerning the impact of illegal
immigrants on critical infrastructure, and diligent follow-up on
complaints received concerning persons who appear to pose a domestic
security threat, were and remain our regional priorities.
There are currently ten (10) Regional Domestic Security Task Force
Agents assigned to the ICE/RDSTF 287(g) project in the Tampa Bay area.
These Agents represent seven different city, county and state agencies,
and have statewide investigative and arrest authority granted by FDLE
for the purpose of conducting domestic security investigations. The
Task Force Agents (TFA's) work on a variety of assignments, but their
first priority is to work on investigations concerning foreign
nationals that are suspected of being involved in domestic security
related issues. Many of the investigations to date have concerned
nationals or citizens of countries designated as sponsors of terrorism
or countries in areas of geographic concern. Additional investigations
targeting unauthorized persons working in critical infrastructure have
also resulted in a number of arrests and deportations. To date over 100
persons have been arrested, and many more have been interviewed by
trained officers who can more adequately determine if a person poses a
threat based a number of variables, including knowledge gained by
participating in the extensive ICE 287(g) training.
To date, the arrests cover a broad spectrum of activity. We have
arrested single individuals involved in what appears to be surveillance
activities of sensitive locations. We have also conducted extensive
investigations that have resulted in illegal aliens being apprehended
working in restricted or secured areas of airports, seaports and
nuclear plants. As with all preventive measures, we will never know for
sure just how many terrorist or other criminal operations we has
disrupted or impacted; however we can state that our commitment to
follow all leads from citizens, the private sector and other government
agencies in a diligent and organized manner continues.
Operation ``Open Water'' is one example of how the 287(g) authority
can be utilized in a multi-agency task force environment, and is
representative of similar RDSTF operations in the State of Florida.
Operation Open Water is a long-term investigation that was initiated
based on a RDSTF effort to investigate instances of identity fraud and
false statements used by subjects to obtain employment and access to
restricted areas at the Port of Tampa. The investigation revealed the
identities of subjects at the Port of Tampa who compromised or
circumvented statutorily mandated port security measures by violating
State of Florida or Federal laws. The investigation resulted in a
number of indictments which lead to arrests, detentions and removals.
The investigation was successful because it combined the efforts of a
number of FDLE programs/initiatives and the training and expertise of
the ICE 287(g) trained Agents and the ICE Lead Worker assigned to the
RDSTF. In each case we also look for problems in the system, and work
with the appropriate authorities to close loop holes, strengthen
procedures, or recommend regulatory and/or statutory changes.
The 287(g) authority granted to these specialized Agents has never
been considered the single solution for any issue involving an
immigrant suspect. Complete investigations surrounding these, and other
persons of concern, are required to assure that law enforcement
officers are following all leads to a logical conclusion. The 287(g)
authority is one of many valuable tools in the legal ``tool belt''
afforded these Task Force Agents to impact suspects in domestic
security cases. Participating agencies recognize this authority,
coupled with appropriate training and oversight, add value to their
organizations. Even today, this program acts as a force multiplier by
allowing authorized local and state agents to screen incoming
complaints and identify persons and leads worthy of follow-up
investigation, without initially contacting the regional ICE office
with every lead or complaint. Those leads or complaints that require
further examination receive more attention at the appropriate levels.
Ironically, this training and experience has proven to be a benefit
to the immigrant communities because the Agents are more readily able
to clear a person that is suspected of suspicious activity by having
access to the wealth of information contained in ICE databases. In
those cases where an immigrant is cleared of suspicion, but still has
immigration issues, the subject is afforded the same consideration as
an illegal alien not encountered under those circumstances.
In closing, Florida strongly supports the continuation of the
287(g) Cross Designation Program. We believe this authority provides a
strong force multiplier for our federal partners and our collective
efforts to prevent another terrorist attack. We remain ready and
willing to assist our federal partners in these efforts. By remaining
committed to our use of the trained personnel in domestic security
related investigative efforts, we are assuring that these highly
skilled officers will be put to the best use--thereby better protecting
Florida and the nation.
Again, thank you for this tremendous opportunity and I look forward
to your questions.
Mr. Rogers. Thank you, Mr. Dubina.
The chair now recognizes the Major Charles E. Andrews,
chief of the Administrative Division of the great state of
Alabama, Department of Public Safety, for your statement.
STATEMENT OF CHARLES ANDREWS
Major Andrews. Mr. Chair, distinguished members of the
committee, thank you for the opportunity to be here and talk
about the 287(g) Program in Alabama.
The Alabama Highway Patrol began in 1935 and in the
succeeding years has developed into the Alabama Department of
Public Safety. The Alabama Department of Public Safety consists
of the Administrative, Highway Patrol, Driver's License,
Alabama Bureau of Investigations Service and Protective
Services Divisions, employing 676 officers.
In early 2003, the state of Alabama, through Governor Bob
Riley's office, approached the Immigration and Naturalization
Service. This contact was precipitated by the increase in
forged documents presented by individuals applying for the
Alabama driver's license and non-driver identification cards
and the lack of presence of and access to immigration officers.
At the time the Governor's Office contacted federal
agencies, there were only three INS officers in the entire
state of Alabama and in fact the state had only recently been
assigned two of the three officers. Alabama U.S. Senator Jeff
Sessions and his staff were helpful in communicating
information about the 287(g) Program and establishing contact
with INS.
In April of 2003, Walt Hemple, a senior agent with INS,
presented a briefing regarding the 287(g) Program to the
Department's divisions, commanders and the DPS director, the
Department's Montgomery headquarters. In discussions that
followed this briefing, the Department and the Governor's
Office determined that the 287(g) Program would aid public
safety in its duty to protect and serve the citizens of the
state of Alabama.
In May, the Department began negotiating a memorandum of
understanding with INS and in September 2003, the state of
Alabama signed a memorandum of understanding with the U.S.
Department of Homeland Security. This memorandum was authorized
by the Immigration and Nationality Act of 1996, as amended by
Section 133 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, codified at 8 USC Section 1357(g).
When the Alabama Department of Public Safety entered into
the MOU, it believed it was the right course of action. Now,
almost 2 years later, we can say we are certain that the 287(g)
Program was and remains the right course of action.
In December of 2003, Alabama State troopers and driver's
license examiners received a 4-hour course of training in
immigration documents and law from Walt Hemple and other ICE
agents. In October 2003, 21 state troopers successfully
completed 5 weeks of extensive immigration training and were
sworn in by ICE to enforce federal immigration law.
The first training class began September 3, 2003 and
comprised a 5-week course taught at the Center of Domestic
Preparedness, a Department of Homeland Security facility,
located near Anniston, Alabama. The teaching staff was made up
of instructors from the Federal Law Enforcement Training Center
at Glencoe, Georgia. Subjects covered included nationality law,
immigration law, document inspection and fraudulent documents,
bias-based policing, statutory authority, removal charges and
juvenile processing.
Because the ICE training was held at the Center for
Domestic Preparedness, the troopers were able to take part in
ICE booking procedures at nearby Etowah County ICE holding
facility and work with ICE at Atlanta's Hartsfield
International Airport.
Under the terms of the MOU, Public Safety spent about
$40,000 in overtime and other expenses during the training of
the 21 troopers. The Department of Homeland Security paid the
remaining costs for the training.
As part of the MOU, the Department has developed an
outreach program to communicate with constituents the purpose
of Alabama's involvement in the 287(g) Program. This outreach
began when Juan Carlos Lara, a consular officer with the
Mexican Consulate in Atlanta, Georgia, addressed the troopers
while they were still training at the Center for Domestic
Preparedness. The Department also hosted a program in
Montgomery for leaders of foreign national organizations and
other interested parties from throughout the state in 2003.
The director of the Department has taken part in a number
of panel discussions at various gatherings of foreign nationals
in Birmingham and other locales throughout the state. The
Department's Public Information staff has appeared on numerous
radio talk shows that cater to foreign nationals and regularly
conducts interviews regarding the program.
The main point the Department works to communicate is that
Alabama's program is reactive and not proactive and that
troopers must have state probable cause before they arrest
anyone.
It is important to note, too, that the MOU includes a
formal complaint procedure and that DPS has not received the
first complaint regarding its 287(g) participation.
Since their October 3, 2003, graduation, these ICE-trained
troopers have made several arrests of illegal immigrants in the
course of their regular duties, including 44 cases accepted for
federal prosecution. Five of these arrests were of previously
deported illegal immigrants with felony convictions. The MOU
troopers also have made two cases of bulk cash smuggling and
seized $690,113.
Make no mistake, these 21 ICE-trained troopers are not
federal immigration officers. They remain Alabama state
troopers with primary duties in the Alabama Department of
Public Safety's Highway Patrol and Driver's License divisions,
and that is precisely why the 287(g) Program has been so
successful in Alabama. These troopers enforce federal
immigration law only as needed while carrying out their regular
duties as Alabama state troopers.
Alabama's MOU with Homeland Security is a reasonable,
common-sense platform that results in a win-win outcome both
for the law enforcement community and for the citizens whom we
serve.
Thank you for this opportunity to testify.
[The statement of Major Andrews follows:]
Prepared Statement of Charles E. Andrews
The Alabama Highway Patrol began in 1935, and in the succeeding
years, has developed into the Alabama Department of Public Safety. The
Alabama Department of Public Safety consists of the Administrative,
Highway Patrol, Driver License, Alabama Bureau of Investigation,
Service and Protective Services divisions, employing 676 sworn
officers.
In early 2003, the state of Alabama, through Governor Bob Riley's
office, approached the Immigration and Naturalization Service. This
contact was precipitated by the increase in forged documents presented
by individuals applying for Alabama driver license and non-driver
identification cards, and the lack of presence of and access to
Immigration officers. At the time the governor's office contacted the
federal agency, there were only three INS officers in the entire state
of Alabama, and, in fact, the state had only recently been assigned two
of the three officers.
Alabama U.S. Senator Jeff Sessions and his staff were helpful in
communicating information about the 287(g) program and in establishing
liaison with INS. In April 2003, Walt Hempel, a senior agent with INS,
presented a briefing regarding the 287(g) program to the department's
division commanders and the DPS director at the department's Montgomery
headquarters. In discussions that followed this briefing, the
department and the governor's office determined that the 287(g) program
would aid Public Safety in its duty to protect and serve the people of
the state of Alabama.
In May the department began negotiating a memorandum of
understanding with INS, and in September 2003, the state of Alabama
signed a memorandum of understanding with the U.S. Department of
Homeland Security. This memorandum was authorized by the Immigration
and Nationality Act of 1996, as amended by Sec. 133 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996; codified
at 8 U.S.C. Sec. 1357(g).
When the Alabama Department of Public Safety entered into the MOU,
it believed it was the right course of action. Now, almost two years
later, we can say with certainty the 287(g) program was and remains the
right course of action.
In the summer of 2003, Alabama state troopers and driver license
examiners received a four-hour course of training in immigration
documents and law from Walt Hempel and other ICE agents. In October
2003, 21 state troopers successfully completed five weeks of extensive
immigration training and were sworn in by ICE to enforce federal
immigration law.
This first training class began September 3, 2003, and comprised a
five-week course taught at the Center for Domestic Preparedness, a DHS
facility located near Anniston, Alabama. The teaching staff was made up
of instructors from the Federal Law Enforcement Training Center at
Glencoe, Georgia.
Subjects covered included Nationality Law, Immigration Law,
Document Inspection and Fraudulent Documents, Bias-based Policing,
Statutory Authority, Removal Charges, and Juvenile Processing. Because
the ICE training was held at the Center for Domestic Preparedness, the
troopers were able to take part in ICE booking procedures at the nearby
Etowah County ICE holding facility and work with ICE at Atlanta's
Hartsfield International Airport. Under the terms of the MOU, Public
Safety spent about $40,000 in overtime and other expenses during the
training of the 21 troopers. The Department of Homeland Security paid
the remaining costs for the training.
As part of the MOU, the department has developed an outreach
program to communicate with constituents the purpose of Alabama's
involvement in the 287(g) program. This outreach began when Juan Carlos
Lara, a consular officer with the Mexican Consulate in Atlanta,
Georgia, addressed the troopers while they were still in training at
the Center for Domestic Preparedness. The department also hosted a
program in Montgomery for leaders of foreign national organizations and
other interested parties from throughout the state in 2003. The
director of the department has taken part in a number of panel
discussions at various gatherings of foreign nationals in Birmingham
and other locales throughout the state. The department's Public
Information staff has appeared on numerous radio talk shows that cater
to foreign nationals and regularly conducts interviews regarding the
program. The main point the department works to communicate is that
Alabama's program is reactive, not proactive, and that troopers must
have state probable cause before they arrest anyone. It is important to
note, too, that the MOU includes a formal complaint procedure and that
DPS has not received the first complaint regarding its 287(g)
participation.
Since their October 3, 2003, graduation, these 21 ICE-trained
troopers have made several arrests of illegal immigrants in the course
of their regular duties, including 44 cases accepted for federal
prosecution. Five of these arrests were of previously deported illegal
immigrants with felony convictions. The MOU troopers also have made two
cases of bulk cash smuggling (Sec. 31 USC 5332) and seized $690,113.
Make no mistake: these 21 ICE-trained troopers are not federal
immigration officers. They remain Alabama state troopers with primary
duties in the Alabama Department of Public Safety's Highway Patrol and
Driver License divisions, and that is precisely why the 287(g) program
has been so successful in Alabama. These troopers enforce federal
immigration law only as needed while carrying out their regular duties
as Alabama state troopers.
Alabama's MOU with Homeland Security is a reasonable, common-sense
platform that results in a win-win outcome both for the law enforcement
community and for the citizens whom we serve.
I mentioned arrests a few moments ago. Have we made a significant
number of arrests as part of this program? No, and we wouldn't expect
to. But the arrests themselves are significant.
The first arrest was of a Korean man who applied for an Alabama
driver license. He presented as his own a resident alien card belonging
to a female. When the driver license examiner ran an NCIC report, which
is routine procedure in Alabama, the examiner learned the applicant had
prior convictions for armed robbery and two cases of possession of
controlled substances. An MOU trooper detained the subject until ICE
officers arrived.
Three examples of arrests made by MOU-trained Highway Patrol
troopers are:
In one incident, a trooper stopped a vehicle on an interstate in
Alabama for a routine traffic violation. The trooper found that both
occupants of the vehicle had outstanding warrants and were aggravated
felons. Both also had been previously deported. The two were turned
over to ICE.
A second incident involved a van in Tuscaloosa County traveling on
Interstate 20/59, which was stopped for a traffic violation by one of
our Motor Carrier Safety units. The trooper received conflicting
information from both the driver and front-seat passenger. There were a
total of 16 persons in the van, which was going to Atlanta. They were
detained, taken to the Tuscaloosa Post, and ICE was called. The MOU
troopers started interviewing the driver, front-seat passenger and the
other 14 passengers and initiated the necessary paper work. When the
Immigration agents arrived, the troopers had processed the 16
occupants, including interview sheets and fingerprint cards. The two
drivers were charge with trafficking, and the other passengers were
returned home by ICE. Troopers charged the driver with various DOT
violations.
The third incident involved a stop of a foreign national for
speeding on Interstate 65. The trooper ran the driver's license number
and discovered it was not on file. The trooper contacted an MOU-trained
trooper who, along with an ICE agent, went to the scene. Using the
National Records database, the ICE-trained trooper was able to
determine that the driver previously had been arrested in Denver in
1969, for entering the United States illegally. The driver was taken
into custody by the ICE agent and transported to the ICE facility in
Etowah County. The state trooper charged the driver with no state
driver license, no proof of insurance and traveling 87 mph in a 50 mph
construction zone.
Since the 1990s, the department has fielded an extremely aggressive
anti-fraud program in driver licensing, with which the 287(g) program
is entirely consistent. Just in the course of driver licensing,
troopers make almost 5,000 arrests each year on a multitude of charges
and outstanding warrants. One such arrest occurred November 22, 2004,
in Opelika. A driver license examiner consulted one of our MOU troopers
regarding a Social Security card she believed to be fraudulent. After
examining the card, the MOU trooper determined it was, indeed,
fraudulent. The trooper called the Social Security Administration and
tried to verify the Social Security number on the card, but the number
was invalid. The name on the card was Lisa Simone Hamilton. The MOU
trooper called the female applicant into her office, told her she was
under arrest for possession of a forged instrument, second degree,
because of the Social Security card, and then tried to place handcuffs
on her. The applicant immediately began to yell, ``It's not mine!''
then pushed the trooper, grabbed her purse and tried to leave the
office. The woman continued to resist arrest to the point of breaking
the arm of one of the driver license examiners and breaking the glass
out of the front door. Once outside the building, the trooper was able
to gain control of the applicant and cuff one arm while she was on the
ground. An ambulance arrived and transported the injured driver license
examiner to the hospital, and the applicant was then placed into a
patrol car and transported to jail. It was determined that her name was
Uchechukwuka Odita and she already was engaged in deportation
proceedings. She also had in her possession a U.S. passport bearing the
same name as the Social Security card. The passport, however, had Ms.
Odita's picture on it.
The Alabama Department of Public Safety's responsibility is to
protect and to serve everyone in Alabama, and the 287(g) program is a
valuable tool that helps Alabama's troopers do a better job protecting
and serving our state and nation. That is why the Alabama Department of
Public Safety, Governor Riley and Senator Sessions have requested and
ICE has agreed to retraining the 21 ICE-trained troopers and training a
second class of 25 troopers.
For the Record
CAS Wage and Baggage Handler Point Paper for John Martin
I. Screener Compensation. As of June 30,2005, Covenant Aviation
Security's (CAS) base wage for Screeners at San Francisco International
Airport is as follows:
----------------------------------------------------------------------------------------------------------------
San Francisco Airport (SFO) Screener Lead Screener Supv Screener
----------------------------------------------------------------------------------------------------------------
CAS Avg Direct Labor Rate $17.74 per hour $23.39 per hour $27.91 per hour
----------------------------------------------------------------------------------------------------------------
In terms of comparing CAS' wages and benefits at SFO to the TSA's
wages and benefits in the San Francisco Bay area, neither CAS nor SFO
have access to TSA's current wage information. The last published wage
data from the TSA is from August, 2004. At that time, the comparison
between CAS' hourly wages and benefits and the TSA's is as follows:
----------------------------------------------------------------------------------------------------------------
Covenant Aviation Security Wages and Benefits at SFO Screener Lead Screener Supv Screener
----------------------------------------------------------------------------------------------------------------
CAS Direct Labor Rate $17.39 $22.93 $27.36
----------------------------------------------------------------------------------------------------------------
1. CAS Fringe Benefit Rate 35% 35% 35%
----------------------------------------------------------------------------------------------------------------
3. Combined CAS Wage and Fringe Benefit Rate $23.48 $30.96 $36.94
================================================================================================================
TSA Wages and Benefits in the Bay Area Screener Lead Screener Supv Screener
----------------------------------------------------------------------------------------------------------------
1.TSA's Direct Labor Rate $14.92 $19.44 $23.17
----------------------------------------------------------------------------------------------------------------
2. TSA's Fringe Benefit Rate 44.75% 44.75% 44.75%
----------------------------------------------------------------------------------------------------------------
3. Combined TSA Wage and Fringe Benefit Rate $21.59 $28.14 $33.53
----------------------------------------------------------------------------------------------------------------
CAS' wages and benefits are fully compliant with the requirements
of the Aviation Transportation Security Act (ATSA), the Fair Labor
Standards Act, and all TSA contract requirements.
II. Baggage Handlers. CAS currently employs 73 Baggage Handlers at
SFO. Their current wages are $12.61 per hour. When CAS' benefit package
is Included, their total remuneration (wage plus fringe benefits) is
$16.96 an hour.
The purpose of Baggage Handlers at SFO is to relieve CAS' Screeners
from the burden of lifting and carrying heavy baggage. This allows CAS'
Screeners to focus exclusively on screening passengers, thereby
increasing screening efficiency. Also, because the Baggage Handlers
position has a greater physical capabilities requirement than does a
Screener position (couple with the fact that CAS Baggage Handlers go
through extensive ``safety lifting'' training), the introduction of
Baggage Handle as greatly reduced the frequency and severity of on-the-
job injuries to CAS' Screening force. As a result, Baggage Handlers are
seen by CAS' Screening workforce as a welcomed complement to CAS'
overall screening operation. CAS Screener's and Baggage Handlers work
together as a integrated team, and because each position is able to
focus on what they do best, there is greater team cohesion and espirit
de corps than was the case before CAS introduced Handlers. In addition,
there is a natural career progression from being a Baggage to becoming
a Screener (i.e.'' because CAS Baggage Handlers have already passed
background checks, they are given the opportunity to become Screeners
if they are able to pass the additional Screening tests).
CAS' Baggage Handlers fall under the cognizance of the Service
Contract Act (SCA) and CAS currently exceeds the SCA's minimum
requirements. Also, because CAS has absorbed its Baggage Handlers
within the TSA' Full-Time-Equivalency (FTE) staffing allotment for SFO,
the introduction of Baggage Handlers did not increase contract value.
Mr. Rogers. Thank you, Mr. Andrews, for your statement.
Thank all the panelists for your statement.
At this time, I have a few questions I would like to ask.
First, Mr. Andrews, one of the concerns that has been
voiced by immigrant groups about the 287(g) Program is their
concern over racial profiling. Can you describe for us your
Alabama experience on this issue and any concerns or problems
that have arisen with regard to racial profiling?
Major Andrews. Yes, sir. Before we entered into this
agreement, the policy of the Alabama Department of Public
Safety was not to condone racial profiling. We have a formal
policy against that, which also applies to the 287(g) Program.
There is a complaint process that is required as a part of the
memorandum of understanding where complaints or comments can be
filed with either the Department of Public Safety or with the
ICE supervisors concerning any complaints of racial profiling.
And we have policies in order to deal with any officer that
engages in such conduct, and it is not acceptable, not
tolerated by our Department.
Mr. Rogers. To your knowledge, have there been any
complaints about racial profiling in your state--
Major Andrews. No, sir.
Mr. Rogers. --since the inception of the program?
Major Andrews. No, sir.
Mr. Rogers. Thank you.
Mr. Dubina, I would like to ask the same question of you
with regard to Florida. Are you aware of any complaints in
Florida with your experience in the 287(g) Program with racial
profiling?
Mr. Dubina. No, sir. And to echo the words of the Major,
most of what he said applies in Florida also. I would also
again like to point out that not only in these officers'
training as Florida law enforcement officers, certified
officers, but also in their training as ICE designated
officers, they go through a series of programs involving
cultural sensitivity and racial profiling issues so that they
are very aware that those are concerns of the community and
their supervisors.
Mr. Rogers. And I would ask each of you a question in each
of your respective states, Mr. Dubina and Mr. Andrews. We have
referenced a number of officers who participated in this
training. Is it your belief that there would be a high demand
for more of this training if we made the funds available?
I will start with you, Mr. Dubina.
Mr. Dubina. Well, I think one thing we have to realize is
that this is very intense training, it is 5 weeks, and then
there is a commitment to ICE following the training. So while I
believe there are agencies out there, including my own agency,
that would like to further take advantage of this program, I do
not see in the future literally hundreds of people being
involved. I think it is a very focused directed program, and
the people that come out of there are highly trained and very
professional in the way they do their business.
Mr. Rogers. Mr. Andrews?
Major Andrews. I agree with Mr. Dubina. We are very
selective in the individuals that we select to participate in
this program. I do believe that we see them as a force
multiplier. There is a need for some additional troopers to be
trained in this area, because we constantly encounter
individuals who presented us with fraudulent documents, and as
we get into checking their backgrounds, we find more and more
of them who are not here legally.
Mr. Rogers. Thank you.
Mr. Kilcoyne, in your written testimony, you state that the
287(g) Program will ``better serve the people of the United
States in ICE's vision in the nation's prisons and jails.''
Now, we have heard testimony today from the panelists about
how well this program has worked in Florida and Alabama in its
current status. Your remarks seem to support what we have heard
from several states that the Department has either considering
or has already set a policy.
In the future, the 287(g) Program will only be implemented
in the custodial setting, and your remarks seem to support that
suggestion. Is that true?
Mr. Kilcoyne. Yes, sir, it is. And I think we have to keep
in mind that with existing resources and existing assets that
we have, we have to be able to manage this program effectively
and wisely so that the end result does not occur as what
occurred before in that if a call comes in to the LESC or to an
ICE office, that there is a van-load or a car-load of suspected
illegal aliens alongside the highway and we are not able to
respond at all, then we have not accomplished anything if we
are making the stop and not being able to respond or the state
and locals are making the stop and we are also not able to
respond.
The lessons that I think we have learned from Alabama and
Florida is that we have to make sure that in those two states,
through using the steering committee concept, through continued
dialogue with the management of the entities there, that we
maintain a very focused approach to this.
Implementation of the program, as the gentleman from
Florida Department of Law Enforcement stated, we just recently
focused on the airport, on violent sexual offenders or
predators. The seaports, those are people who have access to
critical locations and critical areas within those airports or
within the seaport.
The same with expanding it in Alabama where the Major
mentioned the fraudulent documents, obtaining other documents.
Those are the individuals that we want to focus on, because
when they come into the Department of Motor Vehicles within
Alabama, chances are they are bringing other documents with
them to obtain additional fraudulent documents. So they bring
the evidence with them, and we are able to go after an
organization who is supplying the documents or it gives us a
starting point for criminal investigation.
What we are trying to do is to work smarter with the
application of the program into the jails where we have a focus
on those individuals who are going to be in custody for a
period of time for the charges that got them there originally,
whether it is burglary or drunk driving or car theft or
whatever.
Then we are able to manage our resources so that as that
individual does his time, that we are able to, upon release for
the charges that got him there in the first place, we are able
to take them, put them on a plane or a bus or a whatever and
deport them out of the United States.
Now, if we manage that correctly, there is a byproduct for
the states, and that would be the reduction in cost that the
state or county would have to incur for supervision on
probation or parole. So we are able to take them and remove
them, and then they do not have to incur the costs for that
type of supervision. That is the direction with the resources
that we have available that we are trying to go. Improve and
continue to sharpen the focus in Florida and Alabama and expand
it in that direction is the direction that we are trying to go.
Mr. Rogers. Thank you. Unfortunately, my time has expired.
The chair now recognizes the ranking member, Mr. Meek of
Florida, for any questions he may have.
Mr. Meek. Thank you so very much, Mr. Chairman.
Mr. Kilcoyne, I want to ask you another question as it
relates. You mentioned the memorandums of understanding and
also this committee that is supposed to be formed, I know, in
the Florida Department of Law Enforcement with the commissioner
and with Homeland Security to talk about the effectiveness of
the 287 Program. Also, the same language is in the MOU as it
relates to Alabama.
What have we found as it relates to the effectiveness of
protecting the homeland?
Mr. Kilcoyne. Well, I think one of the important--
addressing the first part, as far as the steering committee--I
think that it is essential for this program to work and to work
effectively is that there is an open and continued dialogue at
the local level between the Special Agent in Charge for ICE,
the Special Agent in Charge for the Florida Department of Law
Enforcement; in Alabama, between our Special Agent in Charge or
our Resident Agent in Charge and the command staff for the
Highway Patrol.
They need to be able to use this program and focus this
program on the specific needs with specific examples as they
have both testified to.
Mr. Meek. I am sorry, I do not want to cut you off, but I
have limited time and I have a couple other questions.
But I want to--especially if you could address the part of
domestic security and counterterrorism, the steering committee,
because that is in the MOU. When we talk about counterterrorism
I know that your testimony has been mainly targeted toward once
an individual is already arrested that they run through the
system.
Miami-Dade County, a county I represent, is a part of that
effort in making sure that these individuals are not released
and that you are able to keep them. But I am talking about for
the trained individuals. From what I understand--and correct me
if I am wrong, Major or Special Agent--in Florida, we have 35
individuals that were trained, I think, in August of 2002 and
27 law enforcement. And I guess do we have also DO inspectors
that were a part of that, 27 of them. And in Alabama, I
understand that 21 troopers have gone through this program
since 2003.
I am trying to figure out as it relates to the
counterterrorism, because what we are trying to heads toward
here is making sure that our federal dollar, if we are to
participate, continue to try to build more dollars on to it.
And there has been efforts here by members of this committee to
put money into this program, and it was not shallow language,
it was main language.
How are we targeting that, the steering committees, versus
landscape architect gets pulled over for expired tag and we
find out that he is an illegal alien and we want to deport him.
In the reality, how quick does that deportation take place, and
how is that individual found as a high value individual to be
deported?
Mr. Kilcoyne. Well, I think as the Major talked about as
far as the bulk cash smuggling case, other cases in the DMVs in
Florida, the efforts in the airports and the seaports, I mean,
what we are trying to do is go after criminal aliens and those
individuals that are involved in criminal activity and not the
landscaping type of individuals.
When you go after and you come across, it is an
investigative tool or an interdiction type of a tool for both
of those departments to use to be able to get you into an
organization to identify a system or a border security
vulnerability in that.
For example, in Alabama, if the troopers were to stop a van
and the van would have workers in it or people who have paid
money to be transported from Mexico to the Carolinas, let's
say, well, our real interest is the individual that is driving
the van, the organization that is receiving the money from
those individuals.
How are the individuals getting through the border? Where
is the money going? What are they buying? What else are they
bringing in? Are they bringing in contraband, narcotics? Are
they bringing in just people? Are they bringing cash backwards?
That is what we are looking for, that is the ultimate goal in
this, because that is our mission.
Mr. Meek. So, Mr. Kilcoyne, your testimony is that we are
expecting a state trooper or a local law enforcement officer to
carry out that kind of investigation based on the training that
they have?
Mr. Kilcoyne. No. Let me--
Mr. Meek. I see members are here. We are going to have, I
believe, another round or so. We will be able to talk about it
a little bit more. I am very interested in the program, because
I know when law enforcement officers are trained in a certain
thing, need it be breathalyzer or need it be enforcement as it
relates to drugs, recognition expert, it is training.
I do not know how far we can take it, but I am mainly
concerned about the cost that these local law enforcement
agencies have to undertake in this issue. And also maybe the
individuals we should have here before us, Mr. Chairman, in the
future are state legislatures that are having to pay and also
administrators that are having to replace those individuals
when they come off the road for the training.
I am very interested in the program. I am not against the
program. I just want to make sure that it is making itself
attractive to members of Congress and the administration
because there has not been any money earmarked for states to be
able to draw down, and there is an effort here to do that.
So thank you.
And I am sorry, Mr. Chairman, for going over.
But our second round you can save your answer. Giving you
first shot at it.
Mr. Kilcoyne. Thank you.
Mr. Rogers. The gentleman yields back.
The chair now recognizes the chairman of the full
committee, Mr. Cox from California, for any questions he may
have.
Mr. Cox. Thank you, Mr. Chairman.
This is a very, very important hearing from my standpoint
because we are starting to dig into the questions of why we
have not done a much better job of implementing Section 287(g)
and why it costs so darn much and why we are hearing from
states that the biggest impediment to implementation is in fact
ICE and that ICE is not supportive of the program.
These are comments that we hear repeatedly from states that
are of great concern to this committee, and I hope that we can
do a much better job in the future of using this very, very
important tool of law enforcement.
I know, because I have had so many conversations with law
enforcement around the country, that many, many states and
subdivisions of states are interested in partnering with the
federal government and sharing this responsibility, which is
the nature of homeland security. When we created the Department
of Homeland Security and when we, as a nation, embarked upon
this mission of homeland security, the touchstone was then and
is now and will be in the future sharing in ways that we never
did before.
Obviously, the nation is overwhelmed by the number of
people violating our immigration laws with impunity, and,
obviously, the number of federal officers is inadequate to the
task of enforcing the law against so many people. What we need
is a force multiplier. We have that in the men and women in
uniform across our country that enforce routinely other federal
laws.
What the federal law in this case requires is that anyone
operating under the jurisdiction of a state or local government
who wishes to enforce immigration law can do so if they are
trained in federal law.
So my first question for our ICE witness, Mr. Kilcoyne, is
whether or not in your view there is anything that requires
that this training in federal law be done by the federal
government?
Mr. Kilcoyne. Well, I believe it is ICE's responsibility,
since we are responsible for the Title 8 violation of law, I
think it is our responsibility to manage this program and to
conduct the training.
Mr. Cox. But I want of ask the question more specifically.
Do you think there is any reason that in addition to the
federal government performing this training that somebody else
could not perform the training?
Mr. Kilcoyne. Such as contractors, the state government?
Mr. Cox. Well, let me read you the law. The law says that,
``An officer or employee of the state or political subdivision
of a state performing a function of the immigration law shall
have knowledge of and adhere to federal law relating to the
function.''
Now, is there anything in that that requires that that
knowledge be imparted by the federal government? I learned a
whole lot about federal law by going to law school, and my law
school was not owned and operated by the federal government. I
have learned a lot about federal law in many other ways. Is
there anything in nature or law that requires that this
training be done by the federal government and by ICE? Can we
get more people involved in this and do it faster, better and
cheaper?
Mr. Kilcoyne. That I do not know. I mean, I would have to
defer to the policy makers and the attorneys to give a
definitive answer to that that we could get back to you on.
Mr. Cox. Well, I am looking at some numbers here--Mr.
Chairman, do you have that data that we were just discussing,
here is it right here--that suggests that we are looking at
$171,000 for training for 50 students. And I apologize that I
was not here if you have gone over these figures before, Mr.
Chairman, but what is the source of this figure?
Mr. Rogers. We received this this morning just before the
hearing. I had asked yesterday of our staff--
Mr. Cox. ICE is the source of this?
Mr. Rogers. The source from ICE, yes, sir, the training
costs.
Mr. Cox. So, Mr. Kilcoyne, are you telling this committee
that the number, $171,104, is correct for a basic class for 50
students?
Mr. Kilcoyne. Let me check on that. Yes, that is correct.
That is from a number that the ICE Academy staff put together
as to what the cost is to put on one of the cross-training
classes.
Mr. Cox. Mr. Chairman, I see that my time has expired. I
think that number is way, way, way too high, that the taxpayers
are being ripped off and that we are not accomplishing the
statutory purpose as the author of the legislation that we are
talking about here, the 287(g) provision. I have a pretty
strong sense of what is the intent of Congress here. It is very
clear that ICE is frustrating it.
I yield back.
Mr. Rogers. Thank you, Mr. Chairman, and I agree. There is
a series of questions I know I am going to have in my second
round about these particular numbers, which we received just
before the hearing today, but I think they are astronomical and
indefensible, and I do want to know more about them.
With that, the chair will yield for the ranking member of
the full committee, Mr. Thompson of Mississippi, for any
questions he may have.
Mr. Thompson. Thank you very much, Mr. Chairman.
Following that line of questioning, Mr. Kilcoyne, are we
taking resources from ICE that could go for hiring full-time
people to support this program?
Mr. Kilcoyne. At this time, no. During the timeframe that
we put these training courses on for both Alabama and Florida,
we were in a hiring freeze, so we had these individuals
available to provide the training. Now we are in kind of the
flipside to that in that we have ramping up again for hiring of
basic immigration enforcement agents for--
Mr. Thompson. Thank you. So the freeze is off. So if my
state decides to participate in this program, will it take some
resources that you have dedicated to hiring personnel to
provide that training?
Mr. Kilcoyne. I believe so, yes.
Mr. Thompson. Thank you.
I want to also talk about--this is to Major Andrews--if one
of your troopers find one of the violators and they have to go
to court under this present program, who pays for that
trooper's time when they have to go to court?
Major Andrews. At the present time, the Department of
Public Safety absorbs those expenditures.
Mr. Thompson. Mr. Chairman, that is one of my concerns is
on its face this program looks like the force multiplier takes
effect, but it is really a cost to local government, and you
take that trooper who is in court is now off the roads of the
state of Alabama, and those communities that they are sworn to
serve and protect are one less sworn officer to do their duty.
So I am concerned that we are just kind of shifting this
federal responsibility to the local level, and even when we do
it, we do not accept our responsibility to pay for the cost of
it. So it is almost like smoke and mirrors that we are putting
this burden.
Moving a little further, Mr. Kilcoyne, what is the
complaint process under the MOU?
Mr. Kilcoyne. The complaint process is a very complex,
detailed part of the MOU. There is an appendix to it, so both
signatories understand the process to be able to utilize their
own existing complaint process, and then it would come up to
either the Major's level or my level and be dealt with
collectively, if need be. But it would be what you as a
motorist would have in your state as a way to complain about
the way you were dealt with, the same as if it was us involved.
Mr. Thompson. Excuse me. So if the Florida Department of
Public Safety had a complaint based on an arrest or some
situation, who has jurisdiction of the complaint? Is it Florida
or the Department of Public Safety or is it ICE?
Mr. Kilcoyne. Well, I think it would depend on exactly what
part and what the issues of the complaint were. If it was the
initial stop or the way the individual was dealt with up until
the point where they were turned over to us, then Florida would
handle that. If it was after they were turned over to us, then
we would handle that part of the complaint.
Mr. Thompson. Well, if you would, for both Florida and
Alabama, I would like for you to provide this committee with
the written complaint procedures for either one of those
situations that you said, whether it is the initial stop or
whether it is one where ICE has the responsibility.
I am a little concerned that it might not be as clear as it
needs to be, and in all respect, when you put the two
jurisdictions together, that individual who is stopped is
probably traumatized and in some situations would not know what
to do. So I would like to see for myself what the written
policy that you have established for complaints.
Now, that goes to the point of the forms that you provide
the individual who have complaints or whatever the process is.
I think members of the committee would want to see it.
Mr. Kilcoyne. Okay. We can get that to you.
Mr. Thompson. Thank you very much.
I yield back, Mr. Chairman.
Mr. Rogers. Gentleman yields back.
I thank the ranking member for his questions. He makes an
excellent point about what has been the practice, and that is
that we have been seeing cost shifting from us to the state and
local government.
I would like for the record, though, to emphasize that in
this year's authorization this committee authorized $40 million
for this program, and the Appropriations Committee is
appropriating $5 million of that.
And in this appropriations, the state and local governments
will be allowed to reimburse their local governments for the
backfill and overtime costs, so we will see that practice
stopped, respectively. But you are right, it has been
happening.
Mr. Thompson. Well, if the gentleman will yield, I think,
Mr. Chairman, one of the concerns is that is probably one of
the reasons we have not had any--
Mr. Rogers. I agree.
Mr. Thompson. --participation in the program. I do not
think people see the value.
Mr. Rogers. I agree. Thank you.
And with that, the chair now recognizes the gentleman from
Pennsylvania, Mr. Dent, for any questions he may have.
Mr. Dent. Well, thank you.
Mr. Kilcoyne, I had a question for you. What benefits,
especially security benefits, has ICE realized by taking
advantage of willing partners such as Florida and Alabama? And
I will just say in my state of Pennsylvania I have had law
enforcement officials say to me when they have apprehended an
illegal alien for whatever reason that they get very little
support from ICE.
My point is, if we encourage our local law enforcement
officials to participate in this program, I would just like to
get your perspectives on the success of Florida and Alabama and
what do I tell my local law enforcement officials?
Thank you.
Mr. Kilcoyne. Well, I believe the successes are, again,
giving ICE an opportunity to take the stop or the encounter
that the state police or the Florida Department of Law
Enforcement or even in Pennsylvania to take that and to try to
disrupt and dismantle the organization responsible for that
with our new authorities as far as the combined agencies with
the authorities from Customs and the INS.
And the departments, let's say, in your state, in
Pennsylvania, where you have been working very diligently with,
especially in the Pittsburgh area, to allow them immediate
access to the Law Enforcement Support Center so that they can
make determinations on the side of the highway or in their
precincts or their posts or wherever they may be conducting the
interview and to get them that information back as quickly as
possible and in some instances where an identification and a
determination has been made to issue a detainer to hold that
individual until we can get there.
The successes are there has been several hundred cases and
leads between Alabama and Florida, organizations responsible
for the manufacturing of fraudulent documents or feeder
documents, breeder documents, the seizure of cash by the
troopers from organizations responsible for the movement of
these individuals. That is where we are trying to go to try to
identify those individuals who have access to sensitive
locations, to secure locations.
And it is a way for the local law enforcement, whether it
is in a highway stop setting or in the Department of Law
Enforcement in Florida setting through, let's say, the
detectives, or even in a jail setting, it is just another tool
for those agencies to be able to make sure that we know exactly
who the individual is and what their status is here and if they
should be deported out of the country or if they can provide
information on those organizations responsible for how they got
here. That is our end game is to try to disrupt and dismantle
the organizations responsible for the flow of these individuals
across the border.
Mr. Dent. Well, I guess I just wanted you to be aware of
the concerns that were expressed to me by my state police and
local police. Well, it just seems to me that we are not a
border state, not like Texas or California or Arizona where I
am sure you have to deal with this on a much broader and larger
basis, but in a state like mine where we have less of an issue
with illegals so that we have an issue but not as big as some
of the other states, that they are experiencing difficulties. I
cannot imagine what some of these other states are going
through.
So I just wanted to make sure that I got that point out on
the record, and I will talk to my state police and make them
aware of your comments here today, and hopefully things will
improve. Thank you.
Mr. Rogers. The gentleman yields back.
The chair now recognizes the gentlelady from the Virgin
Islands, Ms. Christensen, for any questions she may have.
Mrs. Christensen. Thank you, Mr. Chairman.
I would like to start with Mr. Kilcoyne. I would like to
know how is this program a risk-based approach to homeland
security? What ICE's enforcement priorities and where does
287(g) fall in that list?
For example, if you had the choice, would you rather see
money go to CIP enforcement or to training for this program?
Mr. Kilcoyne. Well, the cost and the money to establish the
training program for this is going to be expensive, obviously,
if the 20 or 30 jails, large facilities, around the nation come
online with this. That is why we have been trying to manage it
in a manner that is responsible with the resources and monies
that we do have.
Certainly, training is very, very important, so we address
any of the concerns that either the state legislators may have
or the advocacy groups may have so that we are focusing it on
criminal aliens and just not people who are here that are not
in that criminal alien category.
Mrs. Christensen. But I heard you say that before in a
response to another question as well. Is it that clear in your
training--and I guess the state police representatives could
also answer--that what they are assisting ICE with is in
criminal and not just the other, as was referred to, maybe the
gardener or the people who are working here?
Because some of the stories that have been related to us do
not suggest that this is being utilized just in going after
criminal issues with regard to illegal immigrants, but it is
kind of taking a broad brush to all illegal immigrants and in
some cases profiling those that are not illegal.
Mr. Kilcoyne. Well, I can assure you that the training that
we provide and the supervision that we provide to the troopers
or to the agents with the FDLE do not vary from what our
mission is. And the mission is focused on criminal
organizations, those individuals who pose a threat to the
border security or systems within the United States, whether it
is the transportation system or the financial system or
whatever system it may be.
Now, one of the key components of the training is that
they, and the Major mentioned this, that once an encounter
occurs or a stop is affected, that it is for the reasons,
whether it is a Terry stop or state probable cause stop for
whatever, weaving within the lanes, bald tires, whatever it may
be that gets those individuals stopped.
And the focus of our training and the way we want this
applied is that it is another tool to be able to identify those
individuals so that we are not releasing someone who should not
be released back into the community.
Mrs. Christensen. Before my time is up, let me ask Major
Andrews, Mr. Dubina, this is taking local and state officers
away from their regular duties, and do not you find that it has
an adverse impact on doing what your primary mission is?
Major Andrews. In Alabama, the program is set up where this
is an additional duty assignment for the officers. The officers
still focus on their primary mission and their primary duties.
We provided them this training in case they encounter an
individual, whether he has violated some section of the Alabama
code or he has attempted to come to one of our driver's license
issuance offices to obtain a driver's license or a non-drive
identification card.
As they are performing their normal duties and they
encounter these individuals, in the past, we did not have a
resource by which to deal with them. I, myself, have made
traffic stops in which I encounter individuals, sometimes they
are van-loads. All I had was a traffic violation, but I did not
have the resources to further investigate the incident.
With the 287(g) Program, those resources have been
provided. We have access to the Law Enforcement Support Center.
There was a stop that was made in Tuscaloosa County in
which there were 16 individuals in a van. Prior to the 287(g)
Program, we probably would have written an individual traffic
citation and sent them on their way. However, because of the
287(g) Program, one of our ICE-trained troopers was contacted
and responded.
As a result of that, two of the individuals, the driver and
one other individual, ended up being charged with felony cases
and being deported. The other 14 individuals were processed and
interviewed, fingerprinted by the ICE troopers. And when the
ICE agents arrived there on the scene, basically all of the
paperwork necessary to process these individuals had been done.
So it expedited our ability to address that issue.
Mr. Dubina. And if I could follow up, the officers that are
trained in Florida, this is their primary duty, the
investigation of domestic security, antiterrorism cases. So
they are not diverted in any way by this program. It is nothing
more than a benefit to them, an additional tool in their law
enforcement tool belt to help them find people, understand what
they are doing, and if they are doing something illegal, that
is another tool for us to impact them or their organizations.
So as a direct answer to your question, ma'am, this is not
any drain on our resources. These people are designated to do
this type of work.
Mr. Rogers. The gentlelady yields back.
The chair now recognizes the gentleman from Georgia, Mr.
Linder, for any questions he may have.
Mr. Linder. Thank you, Mr. Chairman.
Major Andrews, have you taken this course?
Major Andrews. No, sir, I have not taken the 5-week course.
However, when we first entered into the agreement with this
program, we provided 4 hours of training to all of our
troopers, our communications personnel and our driver's license
examiners in what to look for if an individual presented you
with a fraudulent document, what the documents were that proved
that you were legally here in the country.
And also one of the most important resources we learned
about was the Law Enforcement Support Center. And prior to
this, myself nor any other troopers that worked for me had
knowledge of this Law Enforcement Support Center.
In the past, we had run individuals through the National
Crime Information Center. That would tell us if there were any
domestic wants or warrants on them. However, once we learned
about the Law Enforcement Support Center, we started running
individuals through there too, and that is where we learned as
to whether or not they were wanted for immigration violations
or absconders or what have you. And at that point, if we had a
state law violation or we discovered this, we would contact the
ICE about these individuals. So it has been an eye-opening
experience for our agency.
Mr. Linder. And that 4-hour course you gave them, did those
troopers then go on to this other basic class?
Major Andrews. The 21 that were selected for the basic
class did attend the 4-hour course also; yes, sir.
Mr. Linder. Did they learn a whole lot more in the basic
class then they do in the 4-hour course?
Major Andrews. Yes, sir, most definitely. The 4-hour case
is more to give them an overview of what they may encounter and
how they should react to it. And once they encounter some of
these situations, it may well be well beyond the training that
they are capable of.
And as I said earlier, because there was a lack of ICE
agents in Alabama at the time, we did not have a means by which
how to prioritize these as to whether or not we needed to
contact ICE or hold them or what else to do, in some instances,
being practical to stop a van-load of people and hold them for
24 or 48 hours while you are waiting for a response from an ICE
agent.
Gratefully, all those circumstances have improved now, but
prior to that, basically, if you stopped and you issued them a
traffic citation, he left, he never responded to his traffic
citation and that was the end of it.
Mr. Linder. Mr. Dubina, do your troopers all take this
course?
Mr. Dubina. I have not personally taken the course.
Mr. Linder. Have your troopers all taken it?
Mr. Dubina. We do not have any Florida Highway Patrol
troopers participating in the program. A number of our Florida
Department of Law Enforcement officers or agents, along with
some sheriffs deputies, some other state law enforcement
officers from the Department of Transportation and some city
police officers have taken the course, sir.
Mr. Linder. What percentage of the agents that are
dedicated to this mission have taken the course?
Mr. Dubina. Well, in my squad, in Tampa, which I could
speak most accurately of, all of the FDLE agents assigned to my
squad have taken the course.
Mr. Linder. Was it worth their time?
Mr. Dubina. My personal opinion, it was well worth their
time. And, again, for the reasons I have stated before, they
are now much better able to assess what type of person they are
dealing with and whether this person is actually a threat to
the community or not on a domestic security level.
There is a lot of training that really gives these officers
an insight into the immigration system and why people get here
and why they should or should not be here. And I really feel
that that background for these officers is invaluable when they
run across these people and have to question them.
We have got one shot at these people most of the time.
Major Andrews commented right on point, if you run into one of
these people and you do not know what you are doing and you
have to let them go, that may have been your only shot to
impact their activity in this country.
Mr. Linder. Could you locally handle this course?
Mr. Dubina. Well, I think the challenge would be finding
appropriate instructors to teach the course. I do not think it
is so much a function of a government agency as it is assuring
that the course is properly trained.
Obviously, in law enforcement, in general, we have people
that come in and teach us curriculum that is required by state
statute to maintain your certification, and those people are
not employed by the Department of Law Enforcement or another
county or state entity. And if they are, usually they are
teaching on their own time, they are not teaching as part of
their full-time duties.
Mr. Linder. Well, it just strikes me, if we use this course
to train trainers, we could get a lot further across the
country in training troopers. Would you agree with that?
Mr. Dubina. Well, again, I think it goes to the point of
the selection of who uses a trainer. It is very complicated
material, so you would have to be very discrete or your
selection process would have to be pretty thorough in the types
of people you train to do that. Obviously, I think the people
who do well in this program are the people that are interested
in the program and want to excel in it. And so given that
environment, I think that is a possibility that you could look
into.
Mr. Linder. Thank you.
Thank you, Mr. Chairman.
Mr. Rogers. The gentleman yields back.
The chair now recognizes the gentleman from Texas, Mr.
McCaul, for any questions he may have.
Mr. McCaul. Thank you, Mr. Chairman.
I was proud to support you in the amendment to provide $40
million for this training. I think in the post-9/11 world
having federal, state and locals working together is a good
idea. I think in my experience in law enforcement, state and
locals are often deputized, they participate in joint terrorism
task forces, and I view this issue of immigration as one of
national security. It impacts my home state of Texas on a daily
basis.
I have two impediments, though, that I want to raise with
the panel to get your comments. Of course, my district I have
Austin and Houston, and both of those cities have what is
called a sanctuary policy, which essentially ties the hands of
local law enforcement and their ability to even inquire into
the status of someone they pull over for a traffic violation or
the like.
I want to get your comments on that policy, and I also
wanted to raise the issue of detention space, and perhaps this
is better for the ICE official. I know that on the border we do
not have enough detention space to detain those coming in from
other than Mexico.
As a federal prosecutor, many of my defendants that were
detained were not put in a federal facility but rather in a
state facility. And it is becoming a growing issue, and of
course as state and locals get into the area of enforcing our
immigration laws, I think it is going to become even more of an
issue.
There is a bill pending to provide greater funding for
state and locals for incarceration and reimbursements.
So having said that, I just would appreciate your comments
on those two main issues.
Mr. Dubina. Well, if I could comment on your issue about
the sanctuary cities. In my region, we have several police
chiefs that are outspokenly against things like the CLEAR Act
where you are taking routine patrol officers who do not have
any immigration training and putting them into an environment
where they are asked to enforce immigration law. And at least
one of those same police chiefs actively supports our program
and has actually sent one of his detectives through this 287(g)
Program. So I think that speaks volumes about the stance of
local and county law enforcement when you talk about this
issue.
We obviously have discussed today it is a very complicated
body of law, and to put a routine patrol officer in a situation
of having to deal with it without having any background at all
with the nuances of the law and obviously the rights these
individuals are duly afforded, I think is a disservice to the
officer and also to the immigrant community that they are
dealing with.
Mr. McCaul. Which is why we provided the funding for this
training. But then again, we are stuck with local policies as
not being able to inquire as to the status.
Mr. Dubina. Back on point--if I strayed off, I apologize--
again, we have police chiefs that in general do not support
their officers dealing with immigration matters but have
embraced this 287(g) Program because it is focused and because
the training is thorough, and there is a specific mission
there.
Major Andrews. In Alabama, we do not have any cities that I
am aware of that have a designation of sanctuaries. Even if we
did, I do not think that there would be a lot of impact as far
as the way that we carry out the 287(g) Program, because there
is always some violation of the state code, especially when we
are dealing with traffic enforcement. You are going to have
individuals out there that are going to speed, they are going
to run traffic lights, they are going to run stop signs, and we
are going to encounter them. And many of these individuals will
have engaged in some form of criminal behavior.
And in a lot of instances when you are dealing with--if
your officers have some background in what to look for, the
document that they offer to them, be a driver's license, be an
identification card, be it a resident alien card, that officer
can look at it and determine as to whether or not he needs to
take any further action because he has been issued a fraudulent
document, which is a violation of the law in Alabama within
itself.
So from that standpoint, I do not believe that we have a
handicap in implementing a 287(g) Program.
Mr. McCaul. That is a good point.
Mr. Kilcoyne, do you have a comment on the detention space
issue?
Mr. Kilcoyne. Yes. Actually, on the detention space, that
is actually another entity within ICE other than the Office of
Investigations, but I am very well aware of the fact that bed
space, detention space is a large issue in this and has an
impact on the overall program.
If we respond to a trooper who has stopped a van-load in
the state of Alabama and we process everyone, we identify
everyone and there is no bed space, chances are they may end up
going down the highway with a notice to appear at a later date.
So that is why we are trying to manage this program
correctly. And I believe, and I would like to emphasize again,
we believe that the best way to manage this program in the
future until adequate resources and funding for beds to address
the problem is through the application in the jails or the
prisons so that you can control when that individual is going
to be released for those particular charges that got him
stopped in the first place, whether it is drunk driving or
burglary or whatever he may be there for.
So I think that is the most prudent way to manage this
program and continue on with what we are doing in Alabama and
in Florida.
The issue that you raised as to how are we dealing with the
sanctuary cities and the input there, that was an issue in Los
Angeles when we were recently discussing the MOU with Los
Angeles County. And this is one of the reasons that in the law
that you deal with the governing body over the police
departments so that there is a checks and balance there.
What we ended up with in Los Angeles was the fact that we
would deal with and process those individuals that were
convicted in state or municipal court there in Los Angeles and
were going to go serve a sentence for whatever crime they may
be serving. So that would be your pool of individuals to
process would be those convicted people.
I think that I have talked to, and the program managers
have talked to, a variety of departments and entities around
the United States and that is an issue why we have not expanded
this program in a lot of places because there are conditions. I
believe one of the other panel members on the second panel will
address some of those issues.
But I think, again, going back to a smart application of
this and making modifications to the MOU or the deployment of
the program to fit the needs of the specific requester, such as
with Los Angeles County, and that is just another tool as you
have heard, in their toolbox to hold an individual, to make
sure that criminal is not released back into the community. And
the county or the state does not have to incur the supervision
costs for probation and parole.
So I mean, that is why this is kind of as a new agency and
really a new managed program, this is kind of a work in
progress as we proceed down the road.
Mr. McCaul. Well, thank you, and I see my time has expired.
Thank you, Mr. Chairman.
Mr. Rogers. The gentleman yields back.
The chair now recognizes the gentleman from Washington, Mr.
Reichert, for any questions he may have.
Mr. Reichert. Thank you, Mr. Chairman.
Welcome, and thank you for your service. I was in law
enforcement for 33 years and up until January of this year I
was the sheriff in Seattle. So I know some of the issues that
you are talking about.
About a year or two ago, one of our state troopers stopped
someone for speeding, on a freeway in Ken County, Seattle area.
He wrote the ticket and allowed the person to drive away, and 2
months later they discovered that he had Al Qaida connections.
My first question is, weren't your agencies already
involving in dealing with and countering illegal immigrants
prior to September 11 and even after September 11 without this
training.
Major Andrews. Yes, sir. As I said earlier, in Alabama, we
did encounter them. The difference now is that we have the tool
by which we can run records checks through NCIC and also
through the Law Enforcement Support Center to help us identify
who these individuals are.
There are many instances. We spoke previously about our
one-time with the individual. We may arrest him, he may have to
be released, but then he never shows back up again.
Under the program, as it exists now in Alabama, if we stop
that individual and he presents us with some type of document
that the first officer who encounters him determines it is just
not something right about this document, he needs to check
further. We have the resources to do it now.
His first step is to try and run this individual through
the Law Enforcement Support Center. The second step is to
contact one of these ICE-trained troopers. We can get that
individual in and further investigate as to whether or not this
person has a legal right to be here or if there are any other
inquiries.
Mr. Reichert. Did it take you less time before the training
than it does now or does--from your normal daily activities
that you encounter these people before the training and that
you still do today? Did it take you less time then to handle
the problem or less time today after the training?
Major Andrews. It took us less time before we had the
training, because we would probably just have written a ticket
and let the individual go.
Mr. Reichert. And let the individual go. How much more
time, do you think, are you losing a lot of time away from your
daily duties? And the other question I want to add on to that
is what other duties actually that are non-law enforcement
related, maybe for both of you, that you pulled away from every
day that you can give examples of. Immigration may be one of
those but not your primary duty. But what other duties?
Major Andrews. Well, in Alabama, all of our troopers take
on additional duties being members of the traffic homicide
investigation squad, the tactical operation units, which are
SWAT teams, emergency response units for disasters and natural
manmade--
Mr. Reichert. What about medical emergencies? You have to
respond to those every now and then. They really are not a part
of your--
Major Andrews. They are not, but they are a part of public
service.
Mr. Reichert. Mental illness calls--
Major Andrews. Yes, sir.
Mr. Reichert. --those kinds of calls. Those are things that
cops do every day in the course of their daily duties, and they
hand those duties off to someone else professional in that
field; is that right? This is part of your job.
Major Andrews. Yes, sir. This is part of our job, and in a
lot of instances, irregardless of what happens, we are going to
be the first person there on the scene, and the officer has to
use discretion as to how much further, how much involvement he
needs to have into this before he hands it off to someone else.
Mr. Reichert. Homelessness another example.
Major Andrews. Yes.
Mr. Reichert. Real quick, I think for all advocates of
training, and I can see just by looking at the training record
here some of the training you go through in this program--civil
rights training, human rights training, victim witness
training, use of force training.
I mean, this is additional training that helps benefit not
only the police departments across the country and sheriffs'
offices across the country in addressing this problem were
talking about today, but in every aspect of your job.
And isn't it true that the more training you get, the less
complaints you get?
Mr. Dubina. I think that is absolutely true, and I think
there have been studies that bear that out. Again, I will go
back to what I said before: I think in many cases it is
benefited the immigrant who is being questioned, because the
officer has a higher level of training. He understands what he
is trying to get out of this person, he understands what the
person's status is. He understands very quickly is this person
a problem from a immigration standpoint or is he not? The
average patrol officer, which I have been also, does not have
that level of understanding or training.
Mr. Reichert. Mr. Chairman, if I could just ask one real
quick question. I know my time is expired. Along with the
training thought, I am going to assume that both of your
agencies have an investigative arm that investigates
complaints. Each of your agencies has an internal
investigations unit, and they would investigate any complaint
on any traffic--any complaint that came into your agency; isn't
that true?
Major Andrews. Yes, sir, that is true. We have a Standards
and Integrity Unit that is specifically set up to handle any
type of complaint that comes in, whether it be a profiling
complaint, whether it be that, ``The officer was not courteous
to me that day.''
Mr. Reichert. It is a civil rights complaint. Isn't it true
that you work with the FBI and the U.S. Attorneys Office on
those complaints?
Major Andrews. That is correct, sir.
Mr. Reichert. Okay.
Thank you, Mr. Chairman.
Mr. Rogers. I thank the gentleman for yielding back.
The chair would like to ask a few more questions, have
another round if other members want to ask questions as well.
Mr. Kilcoyne, did I understand you correctly that the money
being spent by ICE is being spent to hire more agents for this
training currently?
Mr. Kilcoyne. No. I believe that there would be--we have a
limited training staff. That staff, since there is going to be
more agents hired, would be teaching those individuals to get
those folks out into the field. However, we are looking at a
variety of options working with our Training Division and
exploring the possibility of using contract trainers, retired
people who have left, who have the expertise and the knowledge
for these very sensitive topics, to be able to teach.
Mr. Rogers. But is this correct that to date all the costs
that ICE has associated with the 287(g) Program has been coming
out of ICE headquarter funding, FLETC funding, Academy funding,
and there has been no specific line item for salaries. Is that
a correct statement?
Mr. Kilcoyne. Correct, for the 287(g) Program, yes.
Mr. Rogers. I want to go back to where we left off on the
questioning in my first round, but before I do that I would
like to ask the ranking member and other members of the
committee, I have made reference to ICE's submission of some
cost estimates for training that we have had submitted today,
and without objection, I would like to have these submitted to
the record for us to consider them further. Without objection,
they are admitted.
And I do not want to spend any more time on those cost
estimates. I want some time to kind of ponder those and make
sure I understand them better before I criticize them, if I
criticize them.
I do want to ask one point of clarification. The cost
difference between basic class and advanced class I know $900
for tuition for the advanced class. Is there no tuition for the
basic class? You see what I am talking about? Down under
advanced class, on the third line, it says, ``$161,000 plus
$900 tuition, estimated.'' There is no reference to tuition
above that in the basic class.
Mr. Kilcoyne. The difference there would be for the $900
tuition is if we held the training at the FLETC Academy as
opposed to delivering it in the field. We were able, for
example, in Alabama be able to bring the cost down quite a bit
by using the Homeland Security facility in Anniston.
Mr. Rogers. Okay. Thank you.
Mr. Kilcoyne. That, I believe, answers that.
Mr. Rogers. Excellent. Thank you.
I want to go back now, though, to where we left off earlier
talking about this 287(g) being applied in the custodial
setting. You, gentlemen, heard Mr. Kilcoyne's reference to that
being the policy or the planned policy going forward. Has that
been the application that you have been utilizing primarily in
your state?
And I will start with you, Major Andrews?
Major Andrews. No, sir. Our application takes place at the
time that we encounter the individuals.
Mr. Rogers. And do you agree with that proposed policy
change or do you think it would be of higher and best use
applied as you have currently been using it?
Major Andrews. I believe that you are going to have to look
at the circumstances in the different jurisdictions. I believe
in Alabama, in our particular situation, the way that we apply
it is a better solution.
Mr. Rogers. Okay. Mr. Dubina?
Mr. Dubina. Yes. Well, I think it was stated in the record
that Miami-Dade is anticipating being part of that program. I
do not know about it. We do not at the Florida Department of
Law Enforcement involve ourselves in corrections. So it is not
part of our program.
To make a value judgment on which is better, I would rather
just say that we strongly support our involvement in the
program and we would like it to continue and would ask you to
do anything you could to make arrangements for that to occur.
Mr. Rogers. Good. Well, all the evidence seems to be that
it is working well now as it is being utilized in your two
states, and I hate to see that limiting direction being taken.
I do want to go back to a point that was left off with the
ranking member in his questioning on this backfill point. I
know that currently you have not been able to get backfill pay
for your officers when they are replaced while they are gone
for training. In this authorizing legislation in the upcoming
appropriation, you will.
Do you think that is going to enhance the likelihood that
your agencies and other agencies within your state will be
likely to participate?
I would, again, start with Mr. Andrews.
Major Andrews. Yes, sir. When we sent those 21 officers to
be trained, someone had to do their duties while they were
there, so we encountered some instances of overtime and issues
of that. But the Department took the position that it was a
valuable program and resources were not available to cover our
costs, so we ate the costs at that time.
Should we be able to continue to do that in the future, I
do not have an answer to that question, but it would definitely
be a positive note for funding to be provided for backfill.
Mr. Rogers. Well, I would make the point, having been here,
being a former state legislator in Alabama and still a resident
there, I know about the gross shortages of state troopers that
we have in our state, and it is commendable that the leadership
of the Alabama Department of Public Safety saw this as being
important and was willing to do it out of their hide. But you
are to be commended for that.
My time has expired.
With that, I will yield to the ranking member of the
subcommittee for any additional questions he may have.
Mr. Meek. Thank you, Mr. Chairman.
Mr. Kilcoyne, I know that you were in the process of
answering a question, and that question I am trying to remember
at this particular time, but I am pretty sure that we will get
around to it. It seems like you have gotten your share of
questions today.
Mr. Chairman, I want to also enter another graph here for
the record, the total national funding for the State Criminal
Alien Assistance Program, to show the decline in funding from
2001, some $565 million down to $300 million right now total
appropriated funds.
[GRAPHIC] [TIFF OMITTED] T8332.001
Mr. Rogers. Without objection.
Mr. Meek. Thank you so very much, Mr. Chairman.
Also, some of the efforts--and, Major Andrews, I know that
my good friend, the sheriff here, now congressman, shared some
practical questions with you as it relates to the overall
duties of a law man, law woman out there on the road. But you
do have some counties that are covered by troopers. You may
have a trooper covering two or three counties. Is that an
accurate statement?
Major Andrews. Yes, sir. We do have situations because of
the number of us that we do have troopers sometimes they are
the only trooper working that county or he may be on call for
two or three countries, as you just said.
Mr. Meek. Yes, sir. One of the major concerns that I have
with this issue is, a, I know that we are working toward the
funding issue, but it is almost like we have--in my opening
statement, I talk about the 9/11 bill that we passed, I mean, a
bipartisan bill that every member of Congress voted for just
about. And the funding and the resources that are supposed to
go to ICE, better yet the administration is not putting forth
the money to pay for ICE officers, this program is not in the
president's budget. The program that I just mentioned, the
State Criminal Alien Assistance Program, is not in the
president's budget for funding. And so I am wondering where we
are going with this.
Special Agent, you shared with us that you are a team of
agents, and I know exactly what the Florida Department of Law
Enforcement does, and they are an investigative agency, not an
everyday kind of law enforcement kind of thing. So I am
assuming that your agents are focused on possible targets,
possible individuals of interest. And being able to identify
them when you may have something is important. You may not be
able to call the ICE officers in the Bay Area to be able to
come and say, ``What do you think'' kind of thing because they
are probably stretched thin, as we know they are underfunded at
this time.
I think what is also important, and, Mr. Kilcoyne, it is
kind of hard for me to ask you these questions, sir, because
you are the deputy assistant director and you are doing--some
of the stuff you are doing what you are told and especially
what Congress has told you to do as it relates to your
investigation. But I think what is important here to understand
that if it comes down to ICE discretionary decision on what
they are going to do and what they are not going to do, it is
going to be hiring more ICE officers, even for the money that
is in appropriations bill now. That is for 25 new ICE officers
that can be fully trained and that can be out doing what they
do.
Now, I also pulled out a report a little earlier from the
International Association of Chiefs of Police. This is not the
Kendrick Meek report. These are law men and law women who are
administrators that understand what is going on. They have some
concerns.
And I must say, as it relates to the steering committees,
and that is why I am very interested in that, and I think, Mr.
Kilcoyne, that is what you were in the process of answering
some of the priorities of that committee, it goes along as it
relates to infusion, as it relates to the training of
immigration laws. And it goes on to talk about limitations on
arrests without warrants, liability concerns, some of these
issues that are out there. I do not know if there are being
addressed by these steering committees in Alabama or in
Florida.
And I guess the second part of that question, Mr. Kilcoyne,
and anyone on the panel can get into it, who is on these
steering committees? Just folks that carry badges or do we have
individuals like prosecutors, do we have public defenders, do
we have individuals--what kind of steering committee is this,
because the numbers that have been trained thus far, as it
relates to the DLE or the Alabama Department of Public Safety,
I mean, the numbers are still very, very small.
So for us to say we have a project and it is doing great, I
mean, we are talking about less than, I would assume, 1 percent
or 1.5 percent or even less than that of state law enforcement
or even local law enforcement personnel. So for us to get a
real snapshot, I think it is important with this early program
that we have now to be able to tailor it in a way that it can
be around for years to come, the integrity of the program, also
the funding. So I just want to make sure that we are doing the
right thing here.
I have made pretty much a statement here. The Congress has
already spoken on it. The chairman, author of the legislation,
and now here we are some 9 years later, or 10, who is counting,
of a program where we only have two states and one local
jurisdiction involved in it. You mentioned something about
corrections and it went into further local jurisdictions as it
relates to working with ICE and detecting individuals that come
in that are here illegally or on some sort of watch list.
Who is on these coordinating committees? Could you answer
that question? steering committees.
Mr. Kilcoyne. The steering committees are comprised of the
local managers for the ICE Special Agent in Charge office in
that particular area, whether it is in Tampa or Miami or in
Alabama. The individuals that have input in addition to the
local level would be the counsel for ICE or counsel for the
Department of Public Safety or for the Department of Law
Enforcement, someone at my level, someone at the Special Agent
in Charge level, the program manager level from headquarters to
make sure that the program, as it is being employed in that
particular area, is consistent with the charter, if you will,
of the MOU and the focus of the agencies and that we are not
out there doing roundups or just general immigration work.
Mr. Meek. Do you have--I am sorry, Mr. Chairman, I just
wanted to have some latitude here--do you have statistical data
as it relates to strategic or counterterrorism arrests that
have come out of this program? Do you have any data that would
support the success of the program?
Mr. Dubina. The original MOU with INS, legacy INS, called
for them to maintain the data on people arrested. I can tell
you that in my region we have arrested or detained over 100
people, pursuant to the designation. But I cannot go beyond--at
this moment, I do not have the stats with me to talk about what
they are statewide.
Mr. Meek. One of the things that I will definitely have an
issue as it relates to the longevity, that data is going to be
important now, especially if the Senate agrees to this $5
million appropriation. I mean, that information is going to be
important.
And so these steering committees and the integrity of these
steering committees, not saying that it is not there, I am just
saying that making sure that the full input is there because it
takes one or two incidents and then folks say, ``Well, you
know, I do not know about the funding for that program.''
And individuals of Congress and some folks here on this
committee, we are the Homeland Security Committee, we are the
cheerleaders for homeland security if anybody in this Congress.
I mean, I do not want you to look up here and see us a
cheerleaders, but I am just sharing with you, that is what we
do. On Armed Services, I serve on that committee too. We are
the committee to go fight for the men and women in uniform
beyond any other committee.
I am saying that to say that I see some issues here, some
other members on the committee see some issues, and we need to
resolve those issues if we want to move forward in being able
to have this program. And we have to have meaningful numbers of
how this actually works.
The Florida Department of Law Enforcement, I am going to
tell you right now, this is low-hanging fruit for you all,
because you investigate. You are part of a task force. But when
you start getting into local law enforcement, you start getting
into state troopers, which I used to be and have great respect
for state troopers, the real issue, it comes down to their
everyday responsibilities and what they do.
You take a trooper off the road involved in an INS
investigation, we are talking 2 weeks in some instances if you
are in court because an individual may very well be deported.
So I am looking at that, I am looking at the money that is
being given, and if we start paying overtime, time and a half
for a trooper to be in court, it may not necessarily mean
anything in investigations because it is just a part of the
investigation, that is the culture of the investigation. It is
court time. That is when we start--and I understand the reason
that the chair and some police chiefs have as it relates to
those individuals.
So I am looking forward to staying more in tune. I would
love, Director Kilcoyne, if any statistical data the MOU calls
for, from what I understand, what I was told, any statistical
data as it relates to the kind of individual that we have been
able to arrest, and I will not even go into the thing of
detain, because folks are detained at the--I am detained at the
airport for 5 or 6 minutes on any given month. So that is not
detained.
I want to know who did we get, who did we catch, and where
are they now?
And where are they now, Mr. Chairman, I think, is the
underlying question here, because they are sitting down at a
local jail waiting on deportation. That is an unfunded mandate
to local government.
So I did more of a statement, Mr. Chairman, than a
question, but I just wanted to get that on the record so that
we can tighten up what we are doing right now.
Mr. Rogers. The gentleman yields back.
The chair would now recognize Mr. Reichert for any
additional questions he may have. No?
The chair would now recognize the ranking member of the
full committee, Mr. Thompson, for any additional questions he
may have.
Mr. Thompson. Thank you very much, Mr. Chairman.
Mr. Kilcoyne, are you aware of the quarterly review that
the MOUs call for?
Mr. Kilcoyne. Yes.
Mr. Thompson. Are they being done?
Mr. Kilcoyne. I believe they are being done at the local
level and then sent to the program manager here at headquarters
that is on my staff.
Mr. Thompson. Can you provide this committee with the
quarterly reviews for each MOU from the inception of the MOU to
present?
Mr. Kilcoyne. Yes, I believe we could get you that, as well
as the results and arrests and the statistics as part of a
package.
Mr. Thompson. I want to further that information from our
ranking member's position. I think it is important for us to
see what benefit that we have derived from training the
troopers in Alabama statistically, and I think you have to
break it out in terms of not just detained but obviously if
there was a conviction or a deportation or something like that.
For my own information, how many ICE agents do we have in
Alabama now?
Mr. Kilcoyne. The exact number I do not have right in front
of me, I can get you that. But I know that the offices that we
had previously in that state were augmented by obviously the
INS people as far as the Customs and INS joining together. But
the actual numbers and breakdown, I can get you that exactly.
Mr. Thompson. Major Andrews talked about that there were
three in his testimony before the troopers went to training.
Major, do you know how many ICE agents are there now?
Major Andrews. At the current time, I believe that there
are four. However, you have to take into consideration that
when Immigration and Customs Enforcement all were consolidated
up under the Department of Homeland Security, there was some
additional individuals that were brought in. I do not know the
exact number of agents now.
I do know that in major cities, our ICE-trained troopers
have an INS supervisory agent to respond to, and there are four
of those.
Mr. Thompson. Okay.
Mr. Kilcoyne, an ICE agent, how long would a full-time
employed ICE agent have to be trained?
Mr. Kilcoyne. To start the Academy and to finish the
Academy?
Mr. Thompson. That is correct.
Mr. Kilcoyne. I believe that the training is about 5
months.
Mr. Thompson. And the training for the program here is 5
weeks?
Mr. Kilcoyne. Yes. The training for the application, both
in Florida and in Alabama, was about 176, just a little shy of
180 hours of training.
Mr. Thompson. Are the qualifications for ICE agents the
same as qualifications for Florida Department of Law
Enforcement officials and Alabama Department of Public Safety
individuals?
Mr. Kilcoyne. When you say the qualifications, are you
talking about the job entry qualifications or are you talking
about the qualifications to be certified to pass the test to
complete the training?
Mr. Thompson. Well, you know, we have people who are
performing job responsibilities who are not ICE agents, and we
have certified them. And I am trying to see whether or not ICE
requires a certification of people you send through the
training.
Mr. Kilcoyne. Well, the candidates that the departments
send in, they have to pass all of the courses that are
presented to them.
As far as what the requirements to get them hired by their
own agency is, may be the same, may be different. I do not know
exactly what those are.
Mr. Thompson. So you are saying as long as those
individuals are sworn law enforcement officers, ICE is
satisfied?
Mr. Kilcoyne. There is a vetting process for those
individuals to be submitted to us to make sure that they do not
have any prior discipline problems or any other issues for them
to come into this program.
Mr. Thompson. Can you provide this committee with the
standards that ICE require from a vetting standpoint for those
people who enter into the program?
Mr. Kilcoyne. Yes, we can.
Mr. Thompson. They are in writing?
Mr. Kilcoyne. No, they are not; however, I can give you the
framework of what the expectation is based on the conversations
that we have with the two departments.
Mr. Thompson. So we take people into a program without any
written standards for vetting.
Mr. Kilcoyne. Well, the standards are the standards
established by the agency and the agency submitting
individuals, as they have mentioned earlier, that want to be in
this program and have met the rigorous standards to get them
employed and retained by their home agency.
Mr. Thompson. I understand that, but this is a program
sponsored by ICE, supported by the taxpayers, and we have not
set a standard for vetting the people that is, in my mind,
objective because it is not written. But, nonetheless, I
appreciate your truthfulness.
I yield back, Mr. Chairman.
Mr. Kilcoyne. If I could continue, in the MOUs, there is
specific language that reads, ``The director of the department,
for example, in Alabama, that the director of the DPS will
nominate to ICE candidates for the initial training and
certification under this MOU. Each candidate nominated ICE may
request any information necessary for a background check and
evaluation for suitability to participate in the initiative.
All candidates must be U.S. citizens. All candidates must
have at least 3 years experience as a sworn law enforcement
officer. All candidates must be approved by ICE and must be
able to qualify for appropriate federal security clearances.
Should a candidate not be approved, a substitute candidate may
be submitted. So long as such substitutions happened in a
timely manner and does not delay the start of the training.
Any future expansion in the number of participating
troopers or scheduling of additional training classes may be
based on an oral agreement of the parties but will be subject
to all of the requirements of the MOU.
So the standards are set in the MOU, but as far as the
written--
Mr. Thompson. I understand.
Mr. Kilcoyne. Okay.
Mr. Thompson. So your testimony now is that nobody has gone
through the training provided by ICE that ICE has not done on
the background checks on.
Mr. Kilcoyne. If the information is supported. I believe
the way it is written in here is that must be approved by ICE
and must be able to qualify for the appropriate federal
security clearances.
So far, we have not had anyone who we have had to dig
deeper on based on the information and the recommendation from
the departments.
Mr. Thompson. Mr. Chairman, I am just a little concerned
that ICE is probably, and could be rightfully so, relying on
the people who are submitted, but they are nonetheless not
doing their due diligence to make sure that the people who come
through the program meet the standards for ICE. And from what I
gather, as long as the people are sent from an area, that is as
far as it goes unless you can tell me otherwise.
Mr. Kilcoyne. I mean, we are relying heavily on the fact
that they are a sworn law enforcement officer for the state of
Florida or the state of Alabama.
Mr. Thompson. But you also are aware that there are
standards that federal law enforcement people have that are
different than local law enforcement officers.
Mr. Kilcoyne. I understand that, sir.
Mr. Thompson. And that we are training people for a federal
program.
Mr. Kilcoyne. I understand that.
Mr. Thompson. Thank you.
Mr. Rogers. Gentleman yields back. I thank the gentleman.
I want to thank the panelists for your time. You have been
very kind and generous, very helpful for us.
With that, the witnesses are excused, and I now call up the
second panel.
The chair now recognizes Kris Kobach, professor, University
of Missouri- Kansas City School of Law, for any statement you
have.
Mr. Kobach?
STATEMENT OF KRIS KOBACH
Mr. Kobach. Thank you, Mr. Chairman. It is an honor to be
before you today to talk about what is, I believe, a proven
mechanism for improving law enforcement, improving the rule of
law in immigration and improving the security of our homeland,
namely Section 287(g).
I was directly involved in overseeing both the Alabama and
the Florida MOUs from my perspective as Council to Attorney
General Ashcroft when the Florida MOU was concluded and in the
initiating stages of the Alabama MOU.
But I would stress that my testimony should not be taken as
the official position of the U.S. Department of Justice. I am
testifying in my personal capacity as a law professor.
At the outset, it is important to define, I think, the
precise scope of the authority we are talking about. Many
observers, especially in the press, have confused Section
287(g) authority with the inherent arrest authority that all
state and local police possess with respect to immigration
violations.
The inherent authority that local police possess was
recognized publicly by the Attorney General in June 2002
following an Office of Legal Counsel opinion coming from the
Department of Justice.
In that statement, the Attorney General stated the
conclusion of the opinion, which was unequivocal, that
arresting aliens who have violated either criminal provisions
of the Immigration Nationality Act or civil provisions
rendering an alien deportable is within the inherent authority
of the states, and that authority has never been preempted by
Congress. And it is simply the power to arrest an alien who is
removable, detain the alien temporarily and transfer him to the
custody of ICE.
Every year, the Law Enforcement Support Center, about which
you have heard several comments already today, received more
than 300,000 calls from state and local police. The vast
majority of those calls have nothing to do with 287(g)
authority, but those calls are exercises of the inherent arrest
authority.
In contrast, Section 287(g) confers a much broader spectrum
of enforcement powers, more than just merely the power to
arrest and transfer, it is, as we have heard, the power to
investigate, the power to collect evidence, assemble a case for
removal or prosecution, the power to take custody of the aliens
on behalf of the federal government and other powers involved
in routine law enforcement.
Appropriately, in 1996, Congress expressly recognized in
the statute that the creation of 287(g) did not displace the
inherent arrest authorities that police may exercise from time
to time.
Well, the success of the program in Florida I think was
immediately apparent. In the first year, under the Florida MOU,
the trained officers specifically made 165 arrests, including
the bust of a phony document ring in the Naples area. In
Alabama, since September 2003, the troopers have made nearly
200 immigration arrests.
And although there are important similarities between the
MOUs in Alabama and Florida, I think it is important to
recognize that the MOUs meet different needs in each of those
communities, and that is one of the benefits of the 287(g)
Program is that it can be tailored to meet the important law
enforcement needs that are different in each jurisdiction.
One of the important aspects of Florida's MOU, as we have
heard, is that it was in the wake of 9/11 and it was tailored
to the exigencies of terrorism. State and local police are
often in the best position to come into contact with alien
terrorists operating in the United States.
Four members of the 9/11 cohort were stopped by state and
local law enforcement through routine traffic violations. In
all four of those instances, the alien was illegally present in
the United States. Also relevant from Florida's perspective was
the fact that many of the 9/11 cohort had been operating in
Florida prior to the attacks or they entered the United States
through Florida. Also relevant was the fact that the 20th
hijacker, Mohamed Al Khatani, attempted to enter through the
Orlando Airport, and he was stopped by a vigilant immigration
inspector.
In contrast, Alabama faced a different challenge. Alabama
had experienced, as we have heard, widespread increases in so
many document production at the DMV and had seen an increase,
generally, in immigration violations but felt underserved by
ICE. They used Section 287(g) to address that problem.
Now, these are not the only needs that Section 287(g) can
address, and I think it is important to recognize that 287(g)
has a lot of untapped potential here. Perhaps the greatest law
enforcement threat today in the United States is the risk of
violent alien street gangs. A few statistics can illustrate the
scope of this problem.
I think most people are aware of Mara Salvatrucha 13 or MS-
13, which is certainly the most notorious alien street gang. It
started as a Salvadoran street gang in the Los Angeles area. It
now has more than 10,000 members in 33 states. And it still
remains smaller than the largest alien street gang, which is
the 18th Street Gang, also originating in Los Angeles, which
has more than 20,000 members in Los Angeles alone.
In both gangs, the majority of members of the gangs are
illegal aliens. That is important here, because that allows law
enforcement an additional tool in dealing with the incredible
violence that these gangs bring to their communities. Wherever
MS-13 or the 18th Street Gang goes, killings inevitably follow.
To give you some statistics out of Los Angeles, the various
gangs accounted for 291 of the city's 515 homicides in 2004,
and that is an increase of more than 12 percent over the 2003
numbers.
Because so many of those gang members are here illegally,
sustained enforcement of immigration law can have a massive
impact in dealing with the gang violence. And this was
demonstrated in March of 2005 when with Operation Community
Shield, ICE arrested 103 MS-13 gang members in an operation
that lasted several weeks.
Now, the way it worked is local law enforcement provided
ICE with lists of known gang members' names. Those names were
then run against the ICE databases. ICE basically found every
match where an individual was here illegally and was also a
member of the gang, as ascertained by the local law
enforcement. ICE then moved in with the help of local law
enforcement and made the arrests, and in one fell swoop 103 MS-
13 members, including one of the most notorious leaders
nationally, were arrested.
That is a powerful example of how immigration enforcement
can be used as a tool in dealing with these street gangs.
Well, Operational Community Shield was a successful
episode, but it is limitation is precisely that--it was an
episode. These law enforcement officers in jurisdictions that
have gang problems are coming into contact with gang members
every day, and in many cases, officers have told me they have
seen gang members who are known deportees. They know the person
has been deported previously or they have very good information
that the individual is here illegally.
Well, they can, if they had Section 287(g) authority, they
could be routinely and regularly and constantly exercising this
immigration enforcement power to take off the street those gang
members who are confirmed illegal aliens, doing the checking
into the databases themselves instead of having an episodic
approach, as we have seen with Operation Community Shield.
We heard on the first panel about the possibility of
limiting 287(g) to prisons. I think this would be a bad idea to
limit--it is certainly a good idea in prisons, but to limit it
to that context would be unfortunate. It would miss the
opportunity to defeat these alien street gangs, it would miss
the opportunity to solve problems like we saw in Alabama prior
to the 287(g) MOU. And I believe it would be contrary to the
express will of Congress.
In my capacity as Counsel to the Attorney General, I looked
at a great deal at the statutory context of Section 287(g) or
8(USC) 1357, and it is clear that the intent of that statutory
text is not limited to prisons. Indeed, one might argue that
the prison context is an extrapolation off the main intent,
which is primarily what we are seeing in Alabama. If ICE were
to limit 287(g) context, it would be a grave mistake.
With the success of Florida and Alabama, we are now poised,
we are in a position to move forward and expand this program.
Despite the improvements ushered in by the Immigration Reform
Act of 1996 we have seen the breakdown of that rule of law
continue for the past 9 years the obviously 9/11 highlighted
the importance of immigration enforcement in the war on
terrorism.
The infrastructure for the MOU is in place. We have the
training system set up, we have the models of past MOUs. The
success of Florida and Alabama is prompting other jurisdictions
to knock at the door of ICE. Interest has been expressed
publicly by leaders in Arizona, Connecticut, Orange and San
Bernardino County California and other jurisdictions.
However, first ICE needs to have a dedicated staff who have
the resources and who are 200 percent focused on this mission
of expanding the Section 287(g) and responding to state
requests in a timely manner.
Second, state and local law enforcement agencies need the
assurance that they will be compensated for their expenses. As
we have heard, there are costs associated with transportation
to the training location. In some cases, substitutes need to be
provided for the officers who are away receiving this training.
And while many jurisdictions, such as Alabama and Florida, are
willing to foot the bill in the short term because they know
that in the long term better immigration enforcement will
result in cost savings for their jurisdiction because the other
attendant problems that follow with the breakdown of the rules
on immigration do not occur.
Many jurisdictions just cannot even begin to take that
first step until they see that they are going to be
reimbursement.
It is become a cliche to say that since 9/11 we have to
have better cooperation between state and federal law
enforcement if we went to improve our homeland security. All
too often I believe those words are empty, they are devoid of
real meaning. It is just something people say.
In contrast, Section 287(g) is a real program with proven
results. It is a tangible way for state and law enforcement to
significantly improve the enforcement of immigration law and
the homeland security of the United States. I wholeheartedly
urge this committee to support its expansion.
[The statement of Mr. Kobach follows:]
Prepared Statement of Kris W. Kobach
Mr. Chairman and Members of the Committee, it is an honor and
privilege to appear before you today to discuss a proven mechanism for
securing our homeland and restoring the rule of law in immigration:
Section 287(g) of the Immigration and Nationality Act, codified at 8
U.S.C. Sec. 1357(g). I was involved in overseeing the first application
of Section 287(g) during my service as Counsel to the U.S. Attorney
General from September 2001 through July 2003. After Florida's
successful Section 287(g) agreement, I did everything I could to ensure
that Alabama's request for a Section 287(g) agreement was met with a
timely and satisfactory commitment from the Justice Department, which
was then carried out by the Department of Homeland Security. However,
my testimony should not be taken to represent the past or present
position of the U.S. Department of Justice. I offer my testimony solely
in my private capacity as a Professor of Law.
Section 287(g) Authority Versus Inherent Arrest Authority
At the outset, it is important to define precisely the scope of the
authority we are discussing. Many observers in the press have confused
the relatively broad Section 287(g) Authority, which represents a
delegation of enforcement power from Congress to the states, with the
narrower inherent arrest authority that the states have always
possessed. A few comments clarifying this distinction may be helpful at
this point.
The inherent authority of local police to make immigration arrests
was recognized by the Justice Department's Office of Legal Counsel
(OLC) and was announced by Attorney General Ashcroft on June 6, 2002.
OLC's unequivocal conclusion was that arresting aliens who have
violated either criminal provisions of the Immigration and Nationality
Act (INA) or civil provisions of the INA that render an alien
deportable ``is within the inherent authority of the states.'' \1\ Such
inherent arrest authority has never been preempted by Congress. This
inherent authority is simply the power to arrest an illegal alien who
is removable, detain the alien temporarily, and then transfer the alien
to the custody of the Bureau of Immigration and Customs Enforcement
(ICE).
---------------------------------------------------------------------------
\1\Attorney General's Remarks on the National Security Entry-Exit
Registration System, June 6, 2002.
---------------------------------------------------------------------------
In contrast, Section 287(g) delegates authority that is
considerably broader than the power to merely arrest an alien and
transfer him to ICE custody. Section 287(g) encompasses the spectrum of
basic enforcement powers. Such 287(g) authority includes not only the
power to arrest and transfer, but also the power to investigate
immigration violations, the power to collect evidence and assemble an
immigration case for prosecution or removal, the power to take custody
of aliens on behalf of the federal government, and other general powers
involved the routine enforcement of immigration laws. This broader
enforcement authority can only be delegated to state and local law
enforcement agencies through a formal Memorandum of Understanding
(MOU), which effectively deputizes members of state or local law
enforcement agencies to perform the ``function[s] of an immigration
officer.'' 8 U.S.C. Sec. 1357(g).
Appropriately, Congress expressly recognized in 1996 that the
creation of Section 287(g) would not displace the inherent arrest
authority that local police might choose to exercise from time to time
and without express delegation from the federal government:
Nothing in this subsection shall be construed to require an
agreement under this subsection in order for any officer or
employee of a State or political subdivision of a State--
(A) to communicate with the Attorney General regarding the
immigration status of any individual, including reporting
knowledge that a particular alien is not lawfully present in
the United States; or
(B) otherwise to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens
not lawfully present in the United States.
8 U.S.C. Sec. 1357(g)(10).
The Success of Section 287(g) Thus Far
To date, two states--Florida and Alabama--have signed Section
287(g) agreements with the federal government. The Florida MOU became
effective on July 7, 2002. Under that agreement, 35 Florida law
enforcement officers were trained for six weeks and were delegated
specific immigration enforcement powers, including the power to
interrogate, the power to collect evidence, and the power to conduct
broad immigration investigations. The success of the program was
immediately apparent. In the first year under the Florida MOU, the
trained state officers made 165 immigration arrests, including the bust
of a phony document production ring in the Naples area.
The Alabama MOU was signed on September 10, 2003. Under the
agreement, the first group of 21 Alabama state troopers undertook five
weeks of immigration enforcement training, which they completed in
October 2003. The Alabama officers received training in the procedures
of immigration investigations, the identification of fraudulent
immigration documents, the use of national immigration databases, the
details of immigration law, and specific document requirements for
illegal aliens. Since then, the Alabama troopers have made nearly 200
immigration arrests. A second class of 25 troopers will receive
training in October 2005.
Targeting Different Problems in Different Jurisdictions
Although there are many similarities between the MOUs of Florida
and Alabama, it is important to recognize that the law enforcement
environments of the two states were different, and the MOUs in each met
different needs. Florida's initial interest in seeking a Section 287(g)
agreement was driven in part by the exigencies of 9/11 and the
recognition that state and local law enforcement can increase their
effectiveness in the war against terrorism with the addition of Section
287(g) enforcement authority. State and local police officers are often
in the best position to come into contact with alien terrorists
operating in the United States. Four members of the 9/11 terrorist
cohort were stopped by state and local law enforcement in the United
States for routine traffic violations. In all four of those instances,
the aliens were illegally present in the United States. (The four
hijackers who were stopped by police were Nawaf al Hazmi, Mohammed
Atta, Hani Hanjour, and Ziad Jarrah.) Also relevant was the fact that
several of the 9/11 hijackers had either entered the United States
through Florida or had operated in Florida while preparing for the
attack. The suspected twentieth hijacker, Mohamed Al Khatani, also flew
to Orlando International Airport; but he was denied entry by a vigilant
immigration inspector. Accordingly, the desire to counter alien
terrorists was central to the Florida MOU at the time of its inception.
In contrast, Alabama faced a different challenge. Alabama had
experienced widespread and increasing violations of federal immigration
law by aliens in its jurisdiction. However, the distribution of INS
manpower left Alabama underserved, in the judgment of Alabama's law
enforcement leadership and members of its congressional delegation. At
times, as few as three INS interior enforcement agents were operating
in the state. Recognizing that breakdown of the rule of law in
immigration carries with it attendant public safety threats, Alabama
addressed the INS manpower shortage by committing its own officers to
the task.
These are not the only needs that Section 287(g) authority can
address. Other jurisdictions will find other uses for an MOU. Perhaps
the greatest law enforcement threat of recent years is the rise of
violent alien street gangs. A few statistics illustrate the scope of
the problem. Mara Salvatrucha-13 (MS-13), the most notorious and
fastest-growing alien gang, started as a Salvadoran gang in Los Angeles
in the late 1980s. MS-13's more than 10,000 members now operate in at
least 33 states. And MS-13 still remains smaller than the largest alien
gang, the 18th Street Gang--which started in Los Angeles with primarily
Mexican membership and then expanded nationwide. It is estimated to
have more than 20,000 members in the Los Angeles area alone. In both
gangs, the majority of members are illegal aliens. The gangs generate
cash in different ways in different parts of the country. But by far,
the most common forms of activity are drug trafficking, theft, gun
trafficking and immigrant smuggling. Where MS-13 or the 18th Street
Gang establish a presence, the killings inevitably follow. In Los
Angeles, the various street gangs accounted for 291 of the city's 515
homicides in 2004--an increase of 12.4% in gang killings over 2003.
Because so many of these gang members are aliens without lawful
presence in the United States, sustained enforcement of immigration
laws can have a massive impact in fighting this national scourge. This
was demonstrated in March 2005, when ICE announced the arrest of 103
members of MS-13 in an effort spanning several weeks known as Operation
Community Shield. Although all of the aliens were arrested for
violations of federal immigration laws, approximately half had prior
arrest records of prior convictions for violent crimes.
Local police departments provided to ICE lists of names of known
alien gang members. ICE then ran those lists through its databases to
determine which of those aliens were legally present in the country.
After determining that the alien gang members were illegally present,
ICE conducted a series of arrests with the help of local law
enforcement. This operation demonstrated powerfully how immigration
enforcement can serve as an invaluable tool to combat gangs when
illegal aliens comprise a substantial proportion of gang members. In
dealing with these deadly gangs, state and local police need every law
enforcement tool at their disposal.
Section 287(g) authority can be particularly useful in dealing with
alien street gangs. Operation Community Shield was a successful
episode, but its limitation is precisely that--it was an episode. Every
day, police officers in gang-ridden jurisdictions encounter alien gang
members who are known to have been previously deported or who are
suspected of being unlawfully present in the United States. Section
287(g) authority would enable those jurisdictions to continuously and
routinely remove those illegally-present gang members from the streets
of our communities. With police officers trained in immigration
enforcement, the checking of gang members' names against national
databases and the enquiring into immigration violations could be done
locally, quickly, and regularly.
Another need that Section 287(g) agreements can address is the
problem of massive numbers of removable felons incarcerated in state
prison systems across the country. ICE's institutional removal program
is intended to identify and take custody of such felons before they are
released. Unfortunately, many felons slip through the cracks. Training
state law enforcement officers to screen incarcerated felons and
determine which ones are removable can fill in the gaps and ensure that
criminals who are not entitled to remain in the United States are, in
fact, removed. The agreement being considered in Los Angeles County,
California, is an example of an MOU that addresses this need.
Existing Infrastructure and Additional Funding
With the demonstrated success of Section 287(g) authority in
Florida and Alabama, we are now in a position as a nation to expand
this program. Indeed, we need to expand this program. Despite the
statutory improvements ushered in by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, the breakdown of the rule of law
has only worsened in the intervening nine years. In addition, the
attacks of 9/11 highlighted the importance of securing our borders in
the war against terrorism.
The infrastructure for additional MOUs is already in place. The
training model has been developed. And the success of Florida and
Alabama is prompting law enforcement agencies across the country to
knock on ICE's door. Interest has been expressed publicly in leaders in
Arizona, Connecticut, Orange County and San Bernardino County,
California, and other jurisdictions. However, two things are missing.
First, ICE needs to dedicate personnel to the task of responding to
such requests for Section 287(g) agreements in a timely manner. Second,
state and local law enforcement agencies need assurance that they will
be compensated for their expenses. The costs of transportation to the
training location and providing temporary replacements for law
enforcement personnel who are participating in the training can be
substantial. Indeed, the existing wording of Section 287(g) deters some
local law enforcement agencies from enquiring further: the immigration
enforcement functions are to be `carr[ied] out. . .at the expense of
the State or political subdivision.'' While many some jurisdictions are
willing to foot the bill in the short run, because they realize that
better immigration enforcement will prevent other more costly law
enforcement problems from arising in the long run, other jurisdictions
are unable to contemplate any additional expenses. The infusion of
federal dollars into the Section 287(g) program will remove that
impediment for jurisdictions that would otherwise seek to participate.
It has become a cliche since 9/11 to say that enhanced state-
federal cooperation is essential if we are to improve our homeland
security. All too often those words are devoid of real meaning.
However, Section 287(g) is a program that facilitates systematic,
structured cooperation with proven results. I wholeheartedly urge this
Committee to support its expansion.
Mr. Rogers. Thank you, Dr. Kobach.
The chair now recognizes Chief Jimmy Fawcett, sixth vice
president of the International Association of Chiefs of Police,
for any remarks that you may have. Chief Fawcett?
STATEMENT OF JIMMY FAWCETT
Chief Fawcett. Mr. Chairman, distinguished members of the
subcommittee, I am pleased to be here with you this morning to
provide the comments of the International Association of Chiefs
of Police on this important and challenging issue.
The questions of what role should state, tribal and local
law enforcement should play in the enforcement of federal
immigration laws has long been discussed and debated among
members of our association. Significantly, in the 112-year
history of the IACP, the membership has never adopted a
resolution or policy position on this vital question, and the
reason for this silence is clear: There is a significant
difference of opinion in the law enforcement profession on this
issue.
Many law enforcement executives believe that state, tribal
and local law enforcement should not be involved in the
enforcement of civil immigration laws since such involvement
would likely have a chilling effect on both legal and
immigrants reporting criminal activity or assisting police in
criminal investigations. They believe that this lack of
cooperation could diminish the ability of law enforcement
agencies to effectively police their communities and protect
the community they serve.
Other law enforcement executives believe that it is
appropriate for law enforcement to play an active role in
immigration enforcement, because individuals who are in the
country illegally have violated the law and should be treated
in the same fashion as other criminals. They feel that it is
the duty of law enforcement to assist the federal government
and to apprehend and detain these individuals.
Both viewpoints raise valid arguments, and it is easy to
understand why no consensus has been reached and no policy
position has been adopted by the IACP. It is the IACP's strong
and fundamental belief that the question of state, tribal or
local law enforcement's participation in immigration
enforcement is in the inherently local decision that must be
made by the police chief, working with their elected officials,
community leaders and citizens.
However, given the increasing importance of this issues,
the IACP Executive Committee, in the fall of 2004 developed and
released a position paper, that you have, that examines the
concerns and obstacles that currently hinder enforcement
efforts by the law enforcement, and it sets forth what we
determined should be key elements of any immigration
enforcement activity by non-federal law enforcement agencies.
In our policy paper, the IACP identified the following
obstacles and concerns with the involvement of state, local and
tribal officials in immigration enforcement. These include
confusion over immigration law, training requirements,
limitations on arrests without warrants, liability concerns and
the chilling effects on immigrant cooperation with law
enforcement officials.
Given these concerns, the IACP believes that at any effort
seeking to have state, tribal or local law enforcement agencies
participate in immigration enforcement must, at a minimum,
contain the following essential elements.
First, because of the question of law enforcement's
participation in immigration enforcement is an inherently local
decision, the IACP believes that any legislative proposal to
enlist the assistance of non-federal agencies in immigration
enforcement must be based on the completely voluntary
cooperation of these law enforcement agencies.
Second, in order to clarify the authority of state, tribal
and local law enforcement to act in matters related to
immigration enforcement, it is necessary for the federal
government to issue a clear and complete statement that
outlines the role of such law enforcement agencies in this
effort and enumerates the legal authority of these officers to
act in these matters.
Third, it is imperative that state, tribal and local
officers receive training on the enforcement of immigration
law. Addressing immigration violations such as illegal entry or
remaining in the country without legal sanction require
specialized knowledge of the suspect's status and visa history
and the complex civil and criminal aspects of the federal
immigration law and their administration.
This is significantly different from identifying someone
suspected of the type of criminal behavior that local officers
are trained to detect, and without adequate training, local
patrol officers will not be in the best position to make these
complex legal determinations.
Straying from my document a little bit that you have
already received, another major concern, and I cannot overstate
this, is resources. We are all strapped at this time for our
resources. Our local budgets are being cut, federal dollars are
being cut that we have received in the past, and so resources
are going to be a major component for our agencies to
participate.
Finally, it is important that any immigration enforcement
initiative provide a liability shield that provides both
personal liability immunity to law enforcement officials for
enforcing federal immigration laws within the scope of their
duties and immunity for enforcing immigration laws unless their
personnel violated criminal law in such enforcement.
While the IACP has not yet adopted a position either in
support or opposition to the 287(g) Program, I would like to
conclude my remarks by noting that the program does appear to
satisfy many of the conditions set forth in our position paper.
Participation in the program is strictly voluntary. The
authority of state, tribal and local officers to enforce
immigration laws is clarified, and designated state and local
law enforcement officers receive specialized immigration
enforcement training.
In short, the 287(g) Program appears to establish an
effective and productive partnership between federal
enforcement agencies and willing state, tribal and local law
enforcement officials. The Department of Homeland Security and
the U.S. Immigration and Customs Enforcements Agencies are to e
commended for the cooperative approach they have adopted, as
both law enforcement officials and the nation seeks a solution
to this complicated and important issue.
That concludes my remarks. Thank you.
[The statement of Chief Fawcett follows:]
Prepared Statement of Chief Fawcett
Good Morning Mr. Chairman and Members of the Subcommittee:
I am pleased to be here with you this morning to provide the
comments of the International Association of Chiefs of Police on this
important and challenging issue.
The question of what role should state and local law enforcement
play in the enforcement of federal immigration laws has long been
discussed and debated among members of the law enforcement community.
Significantly, in the 112-year history of the IACP, the membership has
never adopted a resolution or policy position on this vital question
and The reason for this silence is clear. There is a significant
difference of opinion in the law enforcement profession on this issue.
Many law enforcement executives believe that state and local law
enforcement should not be involved in the enforcement of civil
immigration laws since such involvement would likely have a chilling
effect on both legal and illegal aliens reporting criminal activity or
assisting police in criminal investigations. They believe that this
lack of cooperation could diminish the ability of law enforcement
agencies to effectively police their communities and protect the public
they serve.
Other law enforcement executives believe that it is appropriate for
state and local law enforcement to play an active role in immigration
enforcement because individuals who are in the country illegally have
violated the law and should be treated in the same fashion as other
criminals. They feel that it is the duty of state and local law
enforcement to assist the federal government and to apprehend and
detain these individuals.
Both viewpoints raise valid arguments and it is easy to understand
why no consensus has been reached and no policy position has been
adopted by the IACP. It is the IACP's strong and fundamental belief
that the question of state, tribal or local law enforcement's
participation in immigration enforcement is an inherently local
decision that must be made by a police chief, working with their
elected officials, community leaders and citizens.
However, given the increasing importance of this issues, the IACP
Executive Committee, in the fall of 2004 developed and released a
position paper that examined the concerns and obstacles that currently
hinder enforcement efforts by the state, tribal and local law
enforcement community, and to set forth the what we determined should
be key elements of any effort immigration enforcement activities by
non-federal law enforcement agencies. At this time, I would like to
submit a copy of this position paper for the record.
In our policy paper, the IACP identified the following obstacles
and concerns over the involvement of state and local officials in
immigration enforcement these included Confusion over Immigration Laws;
Training Requirements; Limitations on Arrest Without Warrant; Liability
Concerns and the Chilling Effects on Immigrant Cooperation with state
and local law enforcement officials.
Given these concerns, the IACP believes that at a minimum, any
effort seeking to have state and local law enforcement agencies
participate in immigration enforcement must, at a minimum contain the
following essential elements.
First, Because the question of state, tribal or local law
enforcement's participation in immigration enforcement is an inherently
local decision, the IACP believes that any legislative proposal to
enlist the assistance of non-federal agencies in immigration
enforcement must be based on the completely voluntary cooperation of
state/local law enforcement agencies.
Second, in order to clarify the authority of state, tribal and
local law enforcement to act in matters related to immigration
enforcement, it is necessary for the federal government to issue a
clear and complete statement that outlines the role of state, local and
tribal law enforcement agencies in this effort and enumerates the legal
authority of state, local and tribal law enforcement officers to act in
these matters.
Third, it is imperative that state and local officers receive
training on the enforcement of immigration laws. Addressing immigration
violations such as illegal entry or remaining in the country without
legal sanction require specialized knowledge of the suspect's status
and visa history and the complex civil and criminal aspects of the
federal immigration law and their administration. This is significant
different from identifying someone suspected of the type of criminal
behavior that local officers are trained to detect and without adequate
training, local patrol officers will not be in the best position to
make these complex legal determinations.
Finally, it is important that any immigration enforcement
initiative provide a liability shield that provides both Personal
liability immunity to state, tribal and local law enforcement officials
for enforcing federal immigration laws within the scope of their duties
and Immunity for state, tribal or local agencies enforcing immigration
laws unless their personnel violated criminal law in such enforcement.
The 287(g) Program
While the IACP has not yet adopted a position, either in support or
opposition to the 287(g) program, I would like to conclude my remarks
by noting that the program does appear to satisfy many of the
conditions set forth in our position paper. Participation in the
program is strictly voluntary; the authority of state and local
officers to enforce immigration law is clarified and designated state
and local law enforcement officers receive specialized immigration
enforcement training.
Law enforcement executives throughout the nation are committed to
doing all that can be done to protect our communities from crime and
violence.
Mr. Rogers. Thank you, Chief Fawcett.
I have a few questions I would like to ask.
In listing to your concerns and priorities, as you
mentioned in your statement, the current program addresses the
first three. Of course, the fourth, resources, is something we
talked about on the earlier panel and we feel like the upcoming
authorization and appropriation is going to allow more local
governments to practically participate because there will be
the opportunity for backfill expenses to be covered.
The liability shield you referenced, is that a big
obstacle, in your view, to participation in this program?
Chief Fawcett. It is a major concern for local governments
before they can make a commitment to be a participant in these
programs. So I would say that, yes, we are going to have to
address the local communities' concerns.
Mr. Rogers. Dr. Kobach, what do you think about the
liability shield being a hurdle?
Mr. Kobach. I have heard from local law enforcement
agencies who are concerned about that specific issue.
Obviously, it was not a prohibitive concern for Alabama or
Florida. There are also, depending on the state legal
environment you are operating in, the officers are safer from
liability than in other states. So it really depends on the
context.
I think there is no question that that would encourage some
local law enforcement agencies who are worried about that
particular problem, and I would agree with the other witness
that there are some that are.
Mr. Rogers. I would ask this: In the view of each of you,
do you think that that would be an insurmountable obstacle for
the majority of other states?
Obviously, it has not been a concern for Alabama or
Florida, but I will start with you, Chief, do you think that
with most states' local governments that that particular
shortcoming would be insurmountable?
Chief Fawcett. Mr. Chairman, I believe that comparing the
local agency with the state agency is very different and that
the approaches at the local level where the agency is held to a
higher degree of accountability is going to be very different
than at the state level. And so I think that in the local
communities, if their officers are to be involved in these
enforcement efforts, that they are going to want to see some
immunity or they are going to want to see some protection.
Mr. Rogers. You made reference to the local officers being
held to a higher standard than the state officers. What do you
mean?
Chief Fawcett. Not higher but they are more closely
scrutinized because their communities are smaller, their
councils, their governments watch their activities more
closely, they direct their operations more closely. In the
state of Texas where I am from, our legislature meets every
other year, and so while there are governing agencies that are
active year-round there, there is still the vastness of the
state and then what happens at the local level.
Mr. Rogers. Dr. Kobach?
Mr. Kobach. Yes. I do not think it is an insurmountable
problem. I think that it can, in part, be overcome by
information. The worries about the liability risk are greater
than the reality of it. Once the officers receive the training,
then they become unlikely to make a mistake that would trigger
an actionable violation of anyone's civil rights.
And then, secondly, it is important to remember that these
officers are not turned loose and out there operating
completely alone. At every step of the way, they are
coordinating with supervisors at ICE. And so their decisions
are being shared with people who have a great deal of
experience in the area.
And then, finally, I would say you ultimately have someone
moving into the immigration court system. And so that is where
oftentimes if there are challenges to the enforcement of
immigration law, in my experience, I see many of those
challenges occur because of the immigration judge's decision or
the refusal to see certain--you do not see that many challenges
to the initial apprehension of someone being taken into
custody.
Mr. Rogers. I have one last question, my time is about
expired.
I did want to address to you, Dr. Kobach. You made
reference, I thought pretty effectively earlier, about how bad
the people are that we are trying to detect with programs like
this, and you made reference to the gangs more in this region.
Can you speak briefly to the effectiveness of this program at
discerning who these really bad illegal aliens are in Florida
and Alabama?
Mr. Kobach. Yes. The program allows the officers to have,
as has been mentioned by the prior panelists, access to
databases and greater familiarity with the patterns of alien
smuggling, the patterns of drug smuggling that often are
concurrent with those.
Mr. Rogers. But can you give us a couple of examples, I
guess is what I am asking.
Mr. Kobach. I do not have specific anecdotes that I brought
testimony about today.
Mr. Rogers. Okay. But in your view, your review of these
two particular state pilot projects they have been effective at
detecting the kind of people that you described in these gangs.
Mr. Kobach. Oh, absolutely. And I think the Operation
Community Shield, even though that was not a 287(g) Program,
that clearly is something that 287(g) could accomplish. So if
you take that example, and there you have specific individuals
who are--the name of the leader of MS-13 was El Guapo was his
gang name, and he was arrested by simply matching his name
against the fact that he was illegally in the country. Those
are clear examples of how you can locate specific individuals
who are in the leadership or in the membership of these gangs
and use immigration law to take them off the street.
Mr. Rogers. Thank you. My time has expired.
The chair now recognizes the ranking member, Mr. Meek, for
any questions he may have.
Mr. Meek. Thank you.
Mr. Kobach, I want to ask you a question. You referred to
there was testimony in the last panel saying we need to limit
287 to corrections only?
Mr. Kobach. I believe that they said the focus going
forward would be in correctional institutions. It was unclear
to me exactly whether it would be limited or whether it would
be focused or--
Mr. Meek. I know that there was a program that they were
talking about that was discussed within local jurisdictions.
Mr. Kilcoyne mentioned it.
Mr. Kobach. I believe he was referring to the Institutional
Removals Program, which is something that did not operate with
state and local enforcement when making the determination.
Mr. Meek. Sure. You seem to have numbers that ICE does not
have at this point, and if they do have it, they do not know
they have it. You mentioned of the issue of arrests, and you
came up with some specific numbers. You said over 200 arrests
that have been made in Florida and a number of them in Alabama.
Where did you get that data?
Mr. Kobach. Almost 200 in Alabama. Those numbers, I
believe, came from a release by the Alabama law enforcement
community. I know that Senator Sessions used those numbers on
the floor of the Senate not too long ago. And in terms of the
Florida numbers those numbers were made public, I believe,
shortly after the one-year anniversary of the Florida Program,
and ICE certainly has those numbers. They may not have chosen
to include in their testimony.
Mr. Meek. Are they 287 numbers or are they general numbers?
Mr. Kobach. Yes, they are 287(g) numbers. Because, again,
there was a lot of focus on the Florida program and the
Department of Justice and we were looking for what those
numbers were.
Mr. Meek. Do you know what is interesting in this whole
thing, we have been sitting here for about--I guess the
committee started at 10 and we are almost going on 3 hours now.
And I am getting quite confused because I do want the numbers,
and I would assume that the assistant to the director would
have those numbers.
I asked the director of the whole Florida operation, and
then we had the Major here from the troopers in Alabama that
are intimately involved in it, and they could not come up with
any solid numbers. I think it would be good for us, for the
future of the program to be able to--let's figure out what the
numbers are, and let's look at strategic value as it relates to
the individuals that are being arrested.
Are the numbers, like I mentioned before, the landscape
architect that had the broken headlight or is it the
individual, the person of interest that we felt that by
arresting this individual that we have saved lives? Because
this is a very, very and could be a very, very--it is already
expensive for the two pilot programs in the county that we have
in it now.
I wanted to ask you, because you have been a professional
in this thing, and you were over at the Justice Department and
from what I can read of your bio, you have educated yourself
well. But I wanted to ask you this: As it relates to the 9/11
bill we passed last December, I think that a number of
individuals knew that there were stovepipe issues you did refer
to, and I knew it was going to come up sometime during this
hearing, about the small number of hijackers that were stopped
by the law enforcement individuals that stopped them on the
road.
I can tell you there are a lot of what-ifs prior to 9/11.
If we would have had better intelligence, if we would have
listened to this FBI agent who said we need to watch out for
these guys that are training. So there are a lot of ifs out
there. I just want to narrow it down. If you had a choice
between providing the funding to be able to hire additional ICE
officers or border security individuals or funding this
program, the 287 Program, which one would you think would be a
sound investment for members of Congress to invest in if you
were where I am sitting now?
Mr. Kobach. Thank you for that question. I think it is a
very good question and a tough question. Let me just respond
one more point about the numbers. I believe those numbers are
actually in the quarterly report and because the prior
witnesses may not have had those reports in front of them. I am
sure the numbers are gettable, so I am sure you can obtain
them.
With respect to your question about the hijackers and the
what-ifs and where should the money go, I would look at this
way: Look where the money goes when we try to hire ICE agents.
I was in the Department of Justice at the time of 9/11, and we
were shocked to find that our number of interior enforcement
agents was so low, just below 2,000 for the entire country. We
then set about hiring as fast as we could.
Well, where are we today? About the same number, right
around 2,000. This is after 9/11. What is going on? A couple of
things are going on. One is that it is difficult to hire fast
enough to keep up with the money that is coming in for the
hiring. In many instances, especially right after 9/11, INS was
competing against the air marshals, against the FBI, against
other law enforcement agencies that were also trying to hire.
Secondly, attrition. The federal law enforcement ranks are
seeing attrition as baby boomers retire, just like private
industry is too. And so seeing those numbers grow is very
difficult in the federal.
But let's look at your question and that is where would you
invest the money? Well, let's use the numbers that we heard,
$170,000 or so for a class of 50 people. Well, that is roughly
$3,500 per student--a one-time expenditure of $3,500. In
contrast, right now, the modular cost to hire and train one ICE
agent is $198,000. After that, you then pay a salary every
year, and let's say it starts around $80,000 and goes up. So
you are talking $198,000 and then $80,000 every year after
that, and you get one individual.
It seems to me that your money goes a lot further if you--I
am not saying you should not do both but your money goes
further if for $3,500 you get another set of feet on the street
and that individual is out there, and if he does happen to run
into Mohammed Atta who is getting a speeding ticket, he can
actually act in a more effective way than most police officers
can act.
Mr. Meek. I have a couple more questions for you.
Mr. Chairman, I hope there is a second round.
I know we have another member here, but I have a couple
more questions for you. I appreciate that response because that
was good.
And, also, we want to get your source for the numbers so
that we can have it, because I think that is important. I mean,
now we are talking about appropriations. We definitely have
already talked and taken action on authorization. There is
going to have to be some hard numbers out there because there
will be some staffers looking for that kind of stuff. But I
will ask in the second round when we get to it.
Mr. Rogers. Thank the gentleman. The gentleman yields back.
The chair now recognizes the gentleman from Washington, Mr.
Reichert, for any questions he may have.
Mr. Reichert. Thank you, Mr. Chairman.
How many members are in the IACP?
Chief Fawcett. Approximately 20,000, sir.
Mr. Reichert. Twenty thousand.
Chief Fawcett. Yes, sir.
Mr. Reichert. I am a past member of IACP and also a
lifetime member of the NSA, and having participating in those
two groups, it is not surprising to me that you could not get
agreement on this document, and you know what I am talking
about.
Chief Fawcett. Yes, sir.
Mr. Reichert. But it is good news, though, that you did
come up with four things, the voluntary aspect, which is
addressed in 287(g). Most of the things that--well, all of them
really, the role must be clear, I think, the Texas police chief
and the sheriff, that is something we have to have a clear role
in responsibility training. Have you had a chance to look at
the training program, the schedule? Has IACP evaluated the
training program at all?
Chief Fawcett. We have not yet, sir.
Mr. Reichert. You are aware of some of the items. I think I
mentioned earlier some of the items. Are those not items that
most officers receive in their initial basic training?
Chief Fawcett. Many of the items that you spoke of earlier
are required in our continuing training.
Mr. Reichert. Yes. Even some of those training blocks are
they not training blocks that must be continued training
throughout an officer's career, refresher courses?
Chief Fawcett. Yes, sir.
Mr. Reichert. And so this training is provided to the
agency that volunteers to be a participant. Does that not
reduce the cost in some way for your training program?
Chief Fawcett. Possibly, not entirely. It is going to
depend on the requirements of the state. I can see where it
could be beneficial in my state, providing the training got
certification from my licensing agency, which could be done.
Mr. Reichert. In any training that you do, isn't there
always a backfill cost?
Chief Fawcett. Yes, sir, there is.
Mr. Reichert. It would be nice, though, for the federal
government in this case to provide that backfill cost since we
are assisting them in this way, local law enforcement I am
referring to.
Mr. Chairman, I think I will stop with that. Thank you.
Mr. Rogers. The gentleman yields back.
The chair now recognizes the ranking member for any
additional questions he may have.
Mr. Meek. Yes, sir.
Doctor, I wanted to just ask you, the 9/11 Commission, and
I am pretty sure you had an opportunity to take a look at some
of their findings, they do not speak of 287. They speak of
hiring of more ICE agents and they call for a number which the
administration still has not risen to the occasion to be able
to fund this at that level.
But as it relates to the 287 issue, it may be a good
solution for the federal government and the federal purpose of
trying to head off the issue of illegal immigrations or
individuals that are here illegally. But in the long-term
effects, because those are mainly where my questions are going
towards long-term effects of the program, it is almost like the
Department of Homeland Security. I do not look at it as a right
now kind of thing. I look at where we are going to be in
another 5 or 6 years, how the country will feel about the
Department of Homeland Security.
You know the Patriot Act issue was just on the floor. We
have a House and Senate version, I guess, that is close, and we
are going to go to conference on it. It is how everyday
Americans feel about the Patriot Act, which is a tool that is
supposed to help them protect themselves. This 287 issue I
think is on the early years, and it is kind of politically good
founding kind of thing, ``Hey, guess what? We are going to
train local law enforcement officers in identifying individuals
that are here illegally.
And we know that there will be some issues. After 9/11,
there were issues about profiling and there were not issues
about profiling. There were issues about sensitivity, then
there were not issues about sensitivity. But now it is going to
be issues of funding and longevity and soundness of the
program.
And that is the reason why I was questioning the assistant
director of the last panel about these steering committees. Is
it just all of us that are carrying badges and identifications
on the law enforcement end or is there a need to bring in some
other folks as this thing continues to broaden?
Because I believe when we get out of the Florida Department
of Law Enforcement area, which is the Florida version of the
FBI or investigative agency, we start getting into uniform
personnel and then the issues that come along with that. I am
not talking about the issues of profiling only, I am talking
about the issues that deal with overtime, deal with individuals
off the road.
Can we afford to do that and then stand behind the
legislation we passed in December, the 9/11 bill? And those are
the questions, and I know those are issues that you will be
studying and also the chiefs will be looking at as they move
forward.
Mr. Kobach. I think your question touches on a number of
subjects, and I will try to give as precise an answer as I can.
With respect to the 9/11 Commission and Section 287(g)
authority, I think it is fair to say that 287(g) was not
squarely within the scope of the 9/11 Commission's research.
There was no MOU in effect at the time of 9/11, and they were
looking at the mistakes that were made within that legal
context at the time.
I have read the 9/11 report and the appendices, and there
is really nothing about it you are right, but I do not think it
is because they considered 287(g) and rejected it, I just do
not think it was squarely within the ambit of their concerns.
As far as the long-term effects of the program, and your
thoughts down the road 5 or 6 years, where would we like to be,
where would we like to spend our money? Well, I would like to
answer that question. Let's imagine that Congress had an
unlimited amount of money or virtually unlimited amount of
money to give to ICE or that there was a very, very deep well,
say, to draw from.
Mr. Meek. Have you seen the deficit lately?
[Laughter.]
Mr. Kobach. I hasten to add, it does not match.
Mr. Meek. A deep line of credit.
Mr. Kobach. A deep line of credit. Let's suppose that ICE
could hire as many as they wanted and as many as they could.
Because of the hiring barriers, which I saw firsthand right
after 9/11 and which still exist in ICE, I would be very
surprised if we could go from 2,000 even to 4,000. I do not
think you could double ICE's interior enforcement strength in 6
years. I doubt you could even get to 3,000 because of the
incredible barriers of hiring, training and retaining.
So when you consider the numbers here and you consider the
fact that we have, by most estimates, well over 10 million
illegal aliens in the country, of which a certain small
percentage present either terrorist or law enforcement
problems, if you are dealing with a haystack that big and you
only have 2,000 officers for the entire country, you need to
have some help from the law enforcement officers who every day
are out there on the streets.
And you can get that help even at the fairly high cost of
training right now, you can get the help for about $3,500 for
another set of feet that is attuned to immigration violations
and can assist if there is someone out there who is illegally
present in the country and either poses a criminal threat or a
terrorist threat.
Mr. Meek. Dr. Kobach, I mean, I hear what you are saying
and I agree with you, and we can go back and forth, and I want
to thank you for coming before the panel also.
Chief, I want to thank you for coming also and sitting
through the first panel and getting some, I guess, additional
thoughts from those individuals that are dealing with it hands
on.
But I think it is important for us to understand that we
here, and the chairman has had a number of hearings surrounding
this issue of enforcement of immigration laws, and we have had
the Department that have come forth, I mean, ICE has come
forth, ``Oh, we can do the 2,000 agents, no problem in training
them,'' okay. I would even go as far as stretching out if we
were to have the Customs and Border Protection, ``Oh, sure, we
can do that. That is no problem. We can handle it.''
As a matter of fact, we had a director of the Academy from
Georgia, Glencoe, who was here, the director, who said that we
can do it, no problem.
The real issue is making sure, yes, to train law
enforcement officers is a good thing to recognize things, drug
traffickers in the Florida Highway Patrol. I went to training
for that, I went to training for drug recognition expert. But,
see, I was a state trooper and we were going after the
individuals that were speeding and running, like the Major
talked about, traffic lights, also drug traffickers that are
out there.
Some of the investigative issues that we need for a
strategic counterterrorism work out there are for these law
enforcement agencies that they focus on individuals of
interest. If you are working in an airport and you were to
train airport officers, to be able to recognize individuals
that may be on the watch list or to be able to see activity
where you say, ``Wow, something is not right about this guy
with the backpack in a transit area and we just had a
problem.'' Those kind of individuals I can understand it.
When we start getting out into the general law enforcement
community, and it is good to have as many eyes and feet out
there as possible, then we have issues.
I am not here to debate the issues. I am just here to say
these are some of the thoughts that we need to have in our
minds as we move forward. Every member voted for the amendment
to add more money to this program, even on the floor. Pretty
much every member of the committee, I am not sure, I have not
pulled the voting sheet, voted for the authorization bill that
authorized even more money going toward it.
And so as we look at this, Mr. Chairman, I am just going to
say this in closing, because I do not need an answer to this
statement, I think that it will be important for us to continue
to bring local law enforcement individuals to the table and ask
them what they may need from us, what are some of the issues
that they found, even after if we were to get this money to
them and they were to be able to do the backfill and be able to
pay the overtime and do all of these issues that are there.
From what I understand, this money can be used for overtime
and court costs, I guess. Because this is going to be a
preventive maintenance kind of thing. And you are right,
attrition is a reality in every job, but it is important that
we police this thing appropriately, and I will use that word,
``police it,'' for the longevity of the program if we are going
to keep integrity there of the program so that individuals are
not stretched thin like in community policing. Community
policing dollars are no longer there like they used to be. Now
we have other issues that are out there. And so I think that is
very, very important.
So, Mr. Chairman, I am glad that we did have this hearing.
I am glad that you continue to--I should have said this when
the Major was here from Alabama--this is something that you
feel very strongly about. You have not only talked with staff
but with me on the subject and the Florida and the Florida
legislature.
We were the second state in the Union to pass legislation
as it relates to homeland security. I served on that committee,
know the professionalism of the Florida Department of Law
Enforcement. It is ironic that you would be the chairman and I
would be the ranking member, and it would be the only two
states in the program.
But I will tell you this, for this program to stand, and I
think as it relates to the muster of the courts, and I am
willing to see what may happen, as it relates to decisions and
these state law enforcement officers that are trained, if
someone was to challenge their authority to do it, and you have
addressed that in your testimony about how this would actually
work. And you spoke toward immunity. I think law enforcement
officers have some level of protections as it relates to
sovereign immunity. But when we start talking about civil, I do
not know exactly where we are.
And, in closing, Mr. Chairman, I know I am asking quite a
bit of latitude, but can you address the immunity issue? I do
not know if such a thing can be given through federal statute.
I do not think it can. I think it is a very touchy area. Anyone
on the panel could try to address that a little further. And,
you know, individuals who believe in individual rights may have
an issue with that too.
Mr. Kobach. Well, I could just say you are right that
complete immunity is virtually impossible to provide. If an
officer does something that constitutes a violation of
someone's constitutional rights, no statutory immunity is going
to prevent the officer from suffering some consequences from
that. So immunity is a word that has many meanings.
Chief Fawcett. If I might, on the part of IACP and probably
we should have done a better job in our concluding remarks when
we were talking about those concerns of ours that had been
addressed. And, certainly, the liability issue in some part
because of cross-deputization, has addressed some of those
concerns.
And of course, like my colleague here said, that as long as
they are acting within the scope of their authority, protection
should be there. But for those who act outside the scope of
their authority are committing illegal acts and there should
not be protection there.
Mr. Rogers. Gentleman yields back.
I would like to revisit one point and emphasize it, and
that is what we heard from our earlier panelists and we have
heard echoed in Dr. Kobach's remarks is, this has been a very
effective program for the states that have utilized it and also
in Los Angeles in the one county that we have had a pilot
program.
And what I have discerned from the remarks of the panelists
is that these states were willing to take the money out of
their hide and participate even though they were not reimbursed
for backfill, because they saw the inherent benefit in making
their community safer by participating in this.
These are really bad people that we are trying to find. It
is important for our national security but it is also for these
state and communities' security as well.
With that, I want to thank the witnesses for their
testimony. It has been very helpful, and I appreciate you being
here, taking time out of your busy schedule.
I would remind the witnesses that there may be members of
the committee who have questions that were not here, had to
leave, that they would want to submit to you, and the record
will be left open for 10 days. If members do have questions, I
would ask that you write a response in writing and submit it
back for the record.
And with that, and without objection, this committee
hearing is adjourned.
[Whereupon, at 12:57 p.m., the subcommittee was adjourned.]