[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



                      SOLVING THE OTM UNDOCUMENTED
   ALIEN PROBLEM: EXPEDITED REMOVAL FOR APPREHENSIONS ALONG THE U.S. 
                                 BORDER

=======================================================================

                                HEARING

                               before the

                        SUBCOMMITTEE ON ECONOMIC
                        SECURITY, INFRASTRUCTURE
                     PROTECTION, AND CYBERSECURITY

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 28, 2005

                               __________

                           Serial No. 109-43

                               __________

       Printed for the use of the Committee on Homeland Security

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


                                     

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html

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                     COMMITTEE ON HOMELAND SECURITY

                   Peter T. King, New York, Chairman

Don Young, Alaska                    Bennie G. Thompson, Mississippi
Lamar S. Smith, Texas                Loretta Sanchez, California
Curt Weldon, Pennsylvania            Edward J. Markey, Massachusetts
Christopher Shays, Connecticut       Norman D. Dicks, Washington
John Linder, Georgia                 Jane Harman, California
Mark E. Souder, Indiana              Peter A. DeFazio, Oregon
Tom Davis, Virginia                  Nita M. Lowey, New York
Daniel E. Lungren, California        Eleanor Holmes Norton, District of 
Jim Gibbons, Nevada                  Columbia
Rob Simmons, Connecticut             Zoe Lofgren, California
Mike Rogers, Alabama                 Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico            Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida            Donna M. Christensen, U.S. Virgin 
Bobby Jindal, Louisiana              Islands
Dave G. Reichert, Washington         Bob Etheridge, North Carolina
Michael McCaul, Texas                James R. Langevin, Rhode Island
Charlie Dent, Pennsylvania           Kendrick B. Meek, Florida
Ginny Brown-Waite, Florida

                                 ______

   Subcommittee on Economic Security, Infrastructure Protection, and 
                             Cybersecurity

                Daniel E. Lungren, California, Chairman

Don Young, Alaska                    Loretta Sanchez, California
Lamar S. Smith, Texas                Edward J. Markey, Massachusetts
John Linder, Georgia                 Norman D. Dicks, Washington
Mark E. Souder, Indiana              Peter A. DeFazio, Oregon
Tom Davis, Virginia                  Zoe Lofgren, California
Mike Rogers, Alabama                 Sheila Jackson-Lee, Texas
Stevan Pearce, New Mexico            Bill Pascrell, Jr., New Jersey
Katherine Harris, Florida            James R. Langevin, Rhode Island
Bobby Jindal, Louisiana              Bennie G. Thompson, Mississippi 
Peter T. King, New York (Ex          (Ex Officio)
Officio)

                                  (II)




















                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

The Honorable Daniel E. Lungren, a Representative in Congress 
  From the State of California, and Chairman, Subcommittee on 
  Economic Security, Infrastructure Protection, and 
  Cybersecurity:
  Oral Statement.................................................     1
  Prepared Statement.............................................     4
The Honorable Loretta Sanchez, a Representative in Congress From 
  the State of California, and Ranking Member, Subcommittee on 
  Economic Security, Infrastructure Protection, and Cybersecurity     4
The Honorable Mark E. Souder, a Representative in Congress From 
  the States of Indiana..........................................    19

                               WITNESSES

Mr. David V. Aguilar, Chief, Border Patrol, U.S. Customs and 
  Border Protection, Department of Homeland Security:
  Oral Statement.................................................     8
  Prepared Statement.............................................     9
Mr. Daniel W. Fisk, Deputy Assistant Secretary, Bureau of Western 
  Hemisphere Affairs, U.S. Department of State:
  Oral Statement.................................................    14
Mr. John Torres, Acting Director, Office of Detention and Removal 
  Operations, Immigration and Customs Enforcement, Department of 
  Homeland Security:
  Oral Statement.................................................    11
  Prepared Statement.............................................    13

                             For the Record

The Honorable Sheila Jackson-Lee, a Representative in Congress 
  From the State of Texas:
  Prepared Statement.............................................     7
Questions for Mr. David Aguilar and John P. Torress..............    22
Questions for Daniel W. Fisk.....................................    34

















 
                      SOLVING THE OTM UNDOCUMENTED
   ALIEN PROBLEM: EXPEDITED REMOVAL FOR APPREHENSIONS ALONG THE U.S. 
                                 BORDER

                              ----------                              


                     Wednesday, September 28, 2005

             U.S. House of Representatives,
                    Committee on Homeland Security,
                         Subcommittee on Economic Security,
              Infrastructure Protection, and Cybersecurity,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 2:07 p.m., in 
Room 311, Cannon House Office Building, Hon. Dan Lungren 
[chairman of the subcommittee] presiding.
    Present: Representatives Lungren, Souder, Rogers, and 
Sanchez.
    Mr. Lungren. [Presiding.] The Committee on Homeland 
Security, Subcommittee on Economic Security Infrastructure 
Protection and Cybersecurity, will come to order.
    The subcommittee is meeting today to hear testimony on how 
the expedited removal program will enhance DHS's capabilities 
to detain and remove non-Mexican aliens from the U.S.
    First of all, I would like to begin by thanking all of our 
witnesses for coming to testify on this important topic.
    Let me say at the outset that I commend the administration 
and the Department of Homeland Security for its recent policy 
announcement to begin the implementation of expedited removal 
in all Border Patrol sectors along the southwest border of the 
United States.
    We call this hearing today to make clear that the 
successful execution of this program is vital for our nation's 
homeland security.
    When the president established the Office of Homeland 
Security in October of 2001, he made its first responsibility 
to produce a national strategy for homeland security. In this 
strategy, which was issued in July of 2002, he called on the 
United States to ``rethink and renovate fundamentally its 
systems for border security.'' The mobility and destructive 
intent of modern terrorism insists that we must complete this 
task with a real sense of urgency, and, frankly, I find the 
sense of urgency lacking as we move to secure our borders.
    We are here today to ensure that the appropriate resources 
and training exist within and across those agencies that are 
tasked with this important mission. Not only does the Border 
Patrol need to expand the use of expedited removal procedures, 
but there must also be adequate detention space to hold those 
who are apprehended. Necessary country clearances and travel 
documents must be obtained in a timelier fashion so that those 
undocumented aliens may be returned to their home countries 
more expeditiously.
    In the past 3 years, the apprehension of undocumented 
aliens from countries other than Mexico, commonly referred to 
as ``other than Mexicans,'' or OTMs, has more than tripled, 
increasing by 220 percent. The Congressional Research Service 
has also reported that approximately 70 percent of OTMs are 
being released pending immigration removal proceedings, and 
that approximately 63 percent of those released never appear in 
court. As a matter of fact, I have heard that the percentage is 
much, much higher than that.
    This is not something that is hidden to the American 
people. There have been stories, reports on television of this, 
and the reaction of the American people has been, as you would 
expect it, that it is unacceptable.
    These individuals, of course, if they do not show up, 
remain in the U.S. undetected. Included among these 
undocumented aliens are many from special interest countries, 
including Afghanistan, Iran, Iraq and other countries which we 
know to be state sponsors of terrorism. This policy, as it has 
been described on television and other places as ``catch and 
release'', was simply not working. It is also totally 
unacceptable.
    At a time in our nation's history when there are terrorists 
who wish to infiltrate our borders for the purpose of 
inflicting harm on any American, our own policies have created 
a system that apparently encourages more undocumented aliens to 
enter the U.S. illegally. It is my belief that it is this 
system of border security that the president intended us to 
reexamine in the post-9/11 world. It is also my belief that 
this system of border security allows potential terrorists to 
enter the U.S. between our ports of entry and slip into our 
society undetected, especially as we harden other legitimate 
means of entry.
    Congress has taken steps to address this issue over the 
past year. In December 2004, the Intelligence Reform and 
Terrorism Prevention Act was signed into law and authorized an 
increase in detention and removal operation bed space by 8,000 
beds each year from fiscal year 2006 through 2010 for a total 
increase of 40,000 detention beds.
    Congress also provided funding for an additional 1,950 beds 
in the Emergency Supplemental Appropriations Act in May of 
2005, and both the House and Senate versions of the fiscal year 
2006 DHS Appropriations Act provide funding for approximately 
2,000 beds for a total bed space increase in fiscal year 2006 
of nearly 4,000 beds.
    We have with us today Chief Aguilar of the Border Patrol 
who will testify that the results of using expedited removal in 
three Border Patrol sectors beginning last year have been 
dramatic. Since September 2004, the Border Patrol has placed 
34,000 aliens in expedited removal proceedings with 
approximately 20,000 of those having already been removed.
    The expedited removal of undocumented alien takes an 
average of 30 days versus the standard 89 days that it usually 
takes for removal of an alien without the expedited process. 
While this is an improvement, I think some would suggest that a 
month is still too long. Delays are exacerbated by the length 
of time it takes to obtain travel clearances from the OTMs 
countries of origin. Those placed in expedited removal must be 
detained during the entire timeframe, which stresses our 
already burdened detention bed space.
    The additional beds coming online in October will certainly 
help, but we also need to better manage already existing bed 
space. During a recent trip by members of this committee to the 
southwest border, it was found that at least one detention and 
removal operations facility was operating well under its bed 
space capacity. It is just unacceptable that this could happen 
during a time of crisis in our immigration system. We need to 
be using every bed to gain control of the problem of 
undocumented aliens and in particular the problem with OTMs.
    Expedited removal also has the potential to benefit other 
agencies, such as ICE and the Department of Justice. If we are 
successful in removing undocumented aliens before they 
disappear into our communities, obviously it will save precious 
time and resources that are being used on the back end by the 
U.S. Immigration Customs Enforcement to, again, apprehend them 
and for the Department of Justice' immigration court system to 
formally process them.
    So I look forward to hearing from Director Torres about how 
ICE plans to coordinate with both the CBP and the State 
Department in expedited removal proceedings.
    We will also hear testimony today from the State Department 
about the obstacles presented by foreign governments when they 
are requested by the United States to issue certain travel 
documents in order to repatriate OTMs in their home country. My 
understanding is that such countries have an obligation under 
international law to accept their nationals for repatriation.
    We look forward to asking the State Department what it is 
doing and what it plans to do to obtain more cooperation from 
foreign governments to eliminate such obstacles.
    The Immigration Nationalities Act provides a remedy for 
non-cooperation by foreign governments in section 243(d), which 
states that the Secretary of State, in her discretion, may 
discontinue granting visas to nationals of a country denying or 
delaying accepting an alien.
    Now, I understand we do not want to upset other countries, 
but I do not understand when it hurts us why we are so reticent 
to exercise the authority given by the Congress through 
legislation. The removal of OTMs from the United States should 
be as much a priority of the State Department as it is for the 
Department of Homeland Security and the Congress, and we would 
like to explore if the State Department will more aggressively 
use this authority given to them by the Congress.
    Again, I would like to thank our witnesses for appearing 
before the committee today. I want them to take away a message 
that while the Border Patrol can announce new steps to address 
the OTM problem, there must be cooperative efforts from ICE and 
the State Department in order for there to be a successful and 
timely transition from the policy of catch and release to one 
of ``catch and return.''
    I would like to remind our witnesses of the urgent nature 
of this task. I am looking forward to hearing from each of them 
today and how each agency will do its part.

          Prepared Opening Statement of Hon. Daniel E. Lungren

    Good afternoon, I would like to begin today by thanking all of our 
witnesses for coming to testify about this very important topic.
    Let me say at the outset that I want to commend the Administration 
and the Department of Homeland Security for taking steps to move in the 
direction Congress has demanded, with its recent policy announcement 
that expedited removal will be implemented in all border patrol sectors 
along the southwest border of the United States.
    However, the reason for this hearing today is that we must insist 
on this program?s successful implementation. Not only does the Border 
Patrol need to expand the use of expedited removal procedures to more 
apprehensions occurring along our borders, but there also must be 
adequate detention space to hold those apprehended and subject to 
expedited removal. And there must be further efforts made to obtain the 
necessary country clearances and travel documents in a timelier manner, 
in order to return undocumented aliens to their home countries more 
expeditiously.
    There has been a dramatic increase in aliens, commonly referred to 
as ``Other than Mexicans'' or OTMs, illegally entering the U.S. and 
being apprehended by U.S. Border Patrol agents. In a recently issued 
report by the non-partisan Congressional Research Service, it was found 
that apprehensions of OTMs have more than tripled over the past three 
years--increasing by an astounding 220%. CRS also reported that 
approximately 70% of OTMs are being released pending immigration 
removal proceedings and that approximately 63% of those released never 
appear in court. They instead remain in the U.S. undetected. Included 
among these aliens are many from ``special interest countries,'' 
including Afghanistan, Iran and Iraq, and other countries known to be 
state sponsors of terrorism.
    This current policy of ``catch and release,'' as it has been 
called, is simply not working and, frankly, is unacceptable. At a time 
in our Nation?s history where there are terrorists who wish to 
infiltrate our borders and do us serious harm, our own policies have 
created a system that in fact encourages more undocumented aliens to 
enter the U.S. illegally. It is only a matter of time before terrorists 
will enter the U.S. between our ports of entry and slip into our 
society undetected, especially as we harden other legitimate means of 
entry. In fact, terrorists may already have done so. This policy must 
change--and I understand that the Administration is working hard to end 
this ``catch and release'' practice. I am looking forward to hearing 
from our witnesses today about how each agency will do its part to 
bring about such change.
    Congress also took steps to address this issue over the past year. 
In December 2004, the Intelligence Reform and Terrorism Prevention Act 
was signed into law and authorized an increase in Detention and Removal 
Operations (DRO) bed space by 8,000 beds each year from Fiscal Year 
(FY) 2006 through FY 2010, for a total increase of 40,000 detention 
beds. Congress then provided funding for an additional 1,950 beds in 
the Emergency Supplemental Appropriations Act in May 2005; and both the 
House and Senate versions of FY 2006 DHS Appropriations Act provides 
funding for another 2000 or so beds, for a total bed space increase in 
FY 2006 of nearly 4000 beds.
    We have with us today Chief Aguilar of the Border Patrol, who will 
testify that the results of using expedited removal in three border 
patrol sectors beginning last year have been dramatic. Since September 
of 2004, Border Patrol has placed 34,000 aliens in Expedited Removal 
proceedings, with approximately 20,000 of those having already been 
removed.
    The good news is that placing an alien in expedited removal takes 
an average of roughly 30 days for the alien to be removed, versus an 
average of 89 days that it takes for removal of an alien through the 
regular process. But the downside is that it still takes about a month 
to conduct so-called ``expedited'' removal--mainly because of delays in 
obtaining travel clearances from the OTMs' countries of origin--and 
that those placed in Expedited Removal must be detained during that 
entire timeframe, which stresses our already over-burdened detention 
bed space.
    The additional beds coming on line in October will certainly help. 
But we also need to better manage already existing bed space. During a 
recent trip by members of this Committee to the southwest border, a DRO 
facility was found to be operating well under its bed space capacity. 
This should not happen during this time of crisis in our immigration 
system. We need to be using every bed to gain control of the problem of 
undocumented aliens and, in particular, this problem with OTMs.
    Expedited removal also has the potential to benefit other agencies, 
such as ICE and the Department of Justice. If we are successful in 
removing these folks before they disappear into our communities, we 
then do not have to expend precious resources on the back end for U.S. 
Immigration and Customs Enforcement (ICE) to again apprehend them and 
for the Department of Justice's immigration court system to formally 
process them. We look forward to hearing from Director Torres about how 
ICE plans to coordinate with both CBP and the State Department in 
expedited removal efforts.
    We will also hear testimony today from the State Department about 
the obstacles presented by foreign governments when they are requested 
by the United States to issue certain travel documents in order to 
repatriate OTMs to their home country. It is my understanding that such 
countries have an obligation, under international law, to accept their 
nationals for repatriation. I look forward to asking the State 
Department what it has done and what it plans to do to obtain more 
cooperation from foreign governments to eliminate such obstacles.
    The Immigration and Nationality Act provides a remedy for non-
cooperation by foreign governments in section 243(d), which states that 
the Secretary of State, in her discretion, may discontinue granting 
visas to nationals of a country denying or delaying accepting an alien. 
However, it appears that this authority has been used sparingly, if at 
all. The removal of OTMs from the United States should be as much of a 
priority for the State Department as it is for the Department of 
Homeland Security and the Congress, and I am curious to learn whether 
the State Department will more aggressively use the 243(d) sanction 
authority in the future.
    Again I want to thank our witnesses for appearing before the 
Committee today, and want them to take away the message that, while the 
Border Patrol can announce new steps to address the OTM problem, there 
must be a cooperative efforts from ICE and the State Department for 
this new policy of ``catch and return'' to work.

    Mr. Lungren. It is now my pleasure to recognize the Ranking 
Member, Ms. Sanchez from California, for her opening statement.
    Ms. Sanchez. Thank you, Mr. Chairman, and thank you for 
calling this hearing.
    And I would like to thank the witnesses we have before us 
for your testimony today.
    I think that this is a very important opportunity for us to 
focus on the Department of Homeland Security's plan to address 
the problems associated with the policy of releasing other than 
Mexican, or OTM, individuals who enter the United States 
illegally. As a representative of a border state, I know all 
too well how important it is for our citizens and to legal 
immigrants that we institute policies that secure our borders 
and our ports of entry from illegal entry.
    CRS reports that al-Qa'ida has begun considering 
infiltrating the southwest border due a belief that illegal 
entry is more advantageous than legal entry into our country, 
and that is a big issue for many of us who are looking at 
border security and trying to figure out from a homeland 
perspective what we can do better.
    It seems to me that the catch and release policy is not in 
the best of homeland security, and that is why I am glad to see 
that we are looking at catch and return to replace it. But it 
is my understanding that the previous policy resulted from a 
serious shortage in detention space. And I think if this new 
approach is going to succeed, that we have to have the right 
resources in order for you to do your work. We need that space, 
and I know that the administration and the Congress that we 
need to get serious about how we provide DHS these resources.
    One of the most basic needs for implementing the catch and 
return policy is increasing the number of detention bed spaces 
available, as Mr. Lungren so eloquently talked about in his 
statement. So we are looking at urging the administration and 
the Congress to take immediate steps to enhance DHS border 
security resources to the levels called for by the 9/11 Act by 
actually annually adding the following over the next 5 fiscal 
years: Increasing additional detention bed spaces from 4,000 to 
8,000, adding additional 800 ICE agents instead of 200 and 
providing 2,000 additional Border Patrol agents as opposed to 
1,500.
    I think we need to provide our state and local law 
enforcement officials with adequate funding for their work 
enforcing our immigration laws and detaining criminal aliens. 
Unfortunately, funding for the State Criminal Alien Assistance 
Program, or SCAAP, as we have looked at over the last few 
years, has been not funded. I know that every year we 
Californians sign a letter together, I think most of us if not 
all 53, asking the Congress to fully fund these programs.
    And as you can see from this chart here, which I want to 
submit for the record, Mr. Chairman, it shows that the funding 
has been cut nearly 50 percent since 9/11. The administration 
has reduced the funding reimbursement to California by more 
than $100 million below the pre-9/11 funding levels.
    Congress and the administration also need to look beyond 
short-term policy changes as a solution and look to more 
comprehensive border security strategies. That would be 
deploying appropriate resources and technology at our land 
borders and our other ports of entry, because it is not just 
our land borders where people are coming in; implementing 
vigorous work site enforcement through the mandatory use of 
more reliable employment verification systems and the 
sanctioning of employers for hiring illegal workers and passing 
real immigration reform that focuses on border security 
interior enforcement and the needs of our business communities 
and the immigrants who desire to work legally here in the 
United States.
    All of this, I think, requires collaboration between the 
Department of Homeland Security and the Department of State, 
and that is why it is so exciting to see you, Mr. Fisk, here 
today as a representative of State. We thought we would not 
have you today, and I am glad you did come, because I think it 
is very important for us to hear the struggles that you have in 
trying to make these agreements with other foreign governments 
so that we can make sure that that part of the equation is in 
sync.
    Unfortunately, I also have a review going on right now, a 
threat assessment in the Military Committee, on which I am on a 
panel that has been doing a lot of work the last 2 weeks, and I 
am going to have to cut out at some point. So I may not get to 
the question and answer, but I hope that each of you will 
discuss with us your concerns and give us some ideas about what 
needs to change so we can get this done correctly.
    Thank you, Mr. Chairman.
    Mr. Lungren. Thank you very much.
    The other members are reminded that they have an 
opportunity to place their statement in the record.

                             For the Record

         Prepared Statement of the Honorable Sheila Jackson-Lee

    In FY 2004, United States Border Patrol (USBP) agents apprehended 
1.16 million aliens attempting to enter the country illegally between 
official points of entry. Because 93% of the apprehended aliens are 
Mexican nationals, USBP categorizes the apprehended aliens a 
``Mexicans'' or ``Other Than Mexicans'' (OTMs).
    OTMs apprehended along the Southwest border between official points 
of entry cannot be returned to Mexico voluntarily or under a removal 
order. The Mexican government will not accept them. They must be 
returned to their countries of origin, or to third countries that will 
accept them. The Office of Detention and Removal Operations (DRO) does 
not have the facilities to detain them. Over the past three years, OTM 
apprehensions have more than tripled. In FY2005, OTM apprehensions 
reached 119,182, on July 11th. The ones who cannot be detained must be 
released pending removal proceedings before an Immigration Judge, and 
few return for a hearing.
    According to a statement made by DRO Director Lee on June 7, 2005, 
the detention bed space within DRO is filled to capacity. The majority 
of those beds are filled with criminal aliens who have been transferred 
to DRO from county, state, and federal prisons. DRO has roughly 2,500 
beds which are full but which are not occupied by criminal aliens, but 
the USBP is currently apprehending almost 12,000 OTMs every month.
    In an effort to deal more effectively with this problem, the 
Department of Homeland Security 9DHS) has expanded the use of expedited 
removal proceedings to locations between the points of entry. Expedited 
removal authority originated in section 302 of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In expedited 
removal proceedings, a USBP agent makes an initial determination as to 
whether the apprehended person is an alien who entered the United 
States illegally without a visa or other valid entry document. If the 
officer determines that the person is an undocumented alien, the person 
is subject to removal without further proceedings unless he can 
establish a credible fear of persecution. Aliens who establish a 
credible fear of persecution are referred to an Immigration Judge for 
an asylum hearing. If the alien ultimately is removed as a result of 
either type of proceeding, he is barred for five years from returning.
    Expedited removal proceedings are substantially faster than 
ordinary removal proceedings, which involve a full hearing before an 
Immigration Judge. Once an OTM is placed in expedited removal process, 
it takes an average of 32 days for the alien to be removed. In 
comparison, it takes an average of 89 for an alien who is in regular 
removal proceedings.
    Consequently, the expanded use of expedited removal proceedings 
should help, but it is not a solution to the OTM problem. While OTMs 
placed in expedited removal are subject to mandatory detention, they 
will have to be released on their own recognizance in spite of that 
requirement if there are no detention facilities for them.
    We need more detention facilities, but that will not eliminate the 
problem entirely. This and other immigration enforcement problems will 
continue to spiral out of control until we fix our broken immigration 
system. We must enact comprehensive reform bills such as my Save 
America Comprehensive Immigration Act of 2005, H.R.2092. Thank you.


    Mr. Lungren. And I would also say, Mr. Fisk, you probably 
did not realize how much we were looking forward to seeing you 
before you heard her statement.
    It is my opportunity now to recognize Mr. David Aguilar, 
the chief of the United States Border Patrol, U.S. Customs and 
Border Protection, Department of Homeland Security, to testify 
on how the Border Patrol uses the expedited removal process.
    And before you start, I would just remind all members of 
the panel that your written statements will appear in the 
record, and we would ask you to confine your comments to 5 
minutes, please.

                   STATEMENT OF DAVID AGUILAR

    Mr. Aguilar. Thank you, Chairman Lungren, Ranking Member 
Sanchez, Congressman Rogers and other distinguished 
subcommittee members that may be coming in as we progress.
    I am extremely pleased to be here this afternoon to give 
testimony on Border Patrol operations and the detention of 
``other than Mexican'' aliens encountered, detained and 
arrested by the U.S. Border Patrol, especially in the area of 
expedited removal, a new program that we have basically 
implemented and reinvigorated since September 19.
    The Border Patrol operates exclusively between the ports of 
entry and conducts in-depth enforcement operations in direct 
support of border enforcement as it relates to border security. 
Our agents conduct operations along our nation's borders with 
Mexico and Canada and along our coastal areas, including the 
Texas Gulf coast, Florida and Puerto Rico. Our agents patrol 
over 6,000 miles of border.
    One of the things that I would like to very quickly touch 
on this afternoon is our recently revised Border Patrol 
national strategy and its six core elements which I think are 
absolutely essential to this hearing.
    One is securing the right combination of personnel, 
technology and infrastructure to help our agents do the job on 
the border. Two is improving mobility and rapid response to 
quickly counter any kind of shift or criminal organization 
activity that happens along our country's borders--north, south 
or coastal; deploying defense-in-depth that makes full use of 
interior checkpoints and applicability of enforcement efforts 
and transportation hubs, airports and other locations where the 
criminal element may try to exploit our nation's arteries into 
the interior United States; partnerships with other law 
enforcement agencies absolutely critical to our success along 
our nation's borders with Mexico and with Canada; improving 
border awareness and intelligence, some of which we are dong 
here today. It is absolutely essential that our country 
understand what is happening on our borders, and it is 
absolutely critical that we improve our intelligence 
capability.
    And one of the things that has helped us tremendously since 
the creation of DHS and the Customs and Border Protection is 
strengthening the headquarters command structure from 
Washington, D.C., in order to lend to the mobility and rapid 
response capability that is required in order to serve our 
nation along our country's borders.
    The revised national strategy provides a road map for our 
organization's continued expansion efforts and bringing 
operational control to our nation's borders. Our centralized 
chain of command provides for a strategic application of 
existing and future resources and provides for the focused and 
long-term planning and evolution of our strategy based on risk 
management, threats and vulnerabilities.
    Our ability to focus efforts and resources magnifies the 
effect of our resources. An excellent example is what we are 
referring to as Arizona Border Control Initiative Phase II that 
is currently underway in Arizona, as we speak. Some very quick 
stats that I think will interest this subcommittee: 200 Border 
Patrol agents were moved into the Arizona border almost 
overnight in order to support this operation. We more than 
doubled the number of aerial platforms that were working in 
Arizona that are absolutely essential because of the vastness 
and remoteness of the area in which we operate. We have 
permanently reassigned over 160 Border Patrol agents with 
journeymen level experience in order to augment the experience 
base in Arizona.
    Working in conjunction with DRO out of ICE and ICE 
investigations, we have had tremendous successes. During this 
ABCI time period of this year, there has been a reduction of 
over 22 percent in the number of illegal entries into the 
Arizona area of operation.
    Mr. Lungren. Could I interrupt for just a moment?
    Mr. Aguilar. Yes.
    Mr. Lungren. I just got notice, Mr. Rogers and Ms. Sanchez, 
that we have an emergency GOP conference at 3 o'clock, so our 
hearing is going to be cut a little bit short. So I just wanted 
to mention that.
    Mr. Aguilar. I will do the same with mine, sir.
    Today, basically, I am delighted to report that as of 
September 19 our nine southwest border sectors have implemented 
expedited removal. We are taking a measured, prudent and 
strategic approach to effective manage the available detention 
space for maximum deterrent effect, which is the outcome that 
we are looking for in the area of ``other than Mexicans.''
    In closing, I would like to say that our job is nothing 
less than national security. This is not lost on the men and 
women of the U.S. Border Patrol. They are working very hard on 
a daily basis out there along our nation's borders to protect 
America. The Border Patrol Customs and Border Protection and 
its men and women are committed to assertively and aggressively 
expand our operations to continue to build on our nation's 
security.
    I thank the subcommittee for the opportunity to appear 
before you today and for your strong support of all the men and 
women at U.S. Customs and Border Protection. I would be honored 
to respond to any questions that you might have.
    Thank you, sir.
    [The statement of Mr. Aguilar follows:]

                  Prepared Statement of David Aguilar

    Chairman Lungren, Ranking Member Sanchez, and Other Distinguished 
Subcommittee Members, thank you for the opportunity to appear before 
you today to discuss the successes and challenges of border security on 
the southwest border and in particular the recent expansion of the 
Expedited Removal program, as demonstrated by the operations and law 
enforcement initiatives of the Office of Border Patrol, a component of 
U.S. Customs and Border Protection (CBP). My name is David Aguilar, and 
I am the Chief of the U.S. Border Patrol within CBP.
    CBP, as the guardian of the Nation's borders, safeguards the 
homeland--foremost, by protecting the American public against 
terrorists and the instruments of terrorism; while at the same time 
enforcing the laws of the United States and fostering the Nation's 
economic security through lawful travel and trade. Integral to this 
mission is the Border Patrol's time-honored duty of interdicting 
illegal aliens and drugs and those who attempt to smuggle them across 
our borders between the Ports of Entry. We are concerned that 
terrorists, seeking to conduct attacks against the U.S. homeland, may 
exploit illegal human smuggling routes. Reducing illegal migration 
across our borders may help in disrupting possible attempts by 
terrorists to enter our country.
    CBP Border Patrol's National Strategy has made a centralized chain 
of command a priority and has increased the effectiveness of our agents 
by using intelligence driven operations to deploy our resources. 
Partnerships with Immigration and Customs Enforcement (ICE), Department 
of the Interior, Department of Justice (DOJ), Drug Enforcement 
Administration, Federal Bureau of Investigation, Department of 
Transportation, other interagency partners, state, local, and tribal 
law enforcement agencies and state Homeland Security offices play a 
vital role in having and disseminating information and tactical 
intelligence that assists in a quick response, which is essential to 
mission success.
    Recognizing that we cannot control our borders by merely enforcing 
at the ``line,'' our strategy incorporates a ``defense in depth'' 
component, to include transportation checks away from the physical 
border. Checkpoints are critical to our patrol efforts, for they deny 
major routes of egress from the borders to smugglers intent on 
delivering people, drugs, and other contraband into the interior of the 
United States. Permanent checkpoints allow CBP Border Patrol to 
establish an important second layer of defense and help deter illegal 
entries through improved enforcement.
    CBP Border Patrol will continue to assess, develop, and deploy the 
appropriate mix of technology, personnel, and information sources to 
gain, maintain, and expand coverage of the border in an effort to use 
our resources in the most efficient fashion.
    Historically, major CBP Border Patrol initiatives, such as 
Operation Hold the Line, Operation Gatekeeper, and Operation Rio Grande 
in our El Paso, San Diego, and McAllen Sectors, respectively, have had 
a dramatic enforcement impact on illegal migration patterns along the 
southwest border, proving that operational control is possible. 
Together, they have laid the foundation for newer strategies and 
enforcement objectives and an ambitious goal to gain control of our 
Nation's borders, particularly our border with Mexico. These 
initiatives continue to significantly affect illegal migration as we 
seek to bring the proper balance of personnel, equipment, technology, 
and infrastructure into areas experiencing the greatest level of cross-
border illegal activity along our Nation's borders between the Ports of 
Entry.
    Over the past few years, illegal migration patterns have shifted 
from an urban to a rural environment, presenting a different challenge 
to our interdiction efforts. As a result, the Arizona Border Control 
Initiative, currently in Phase Two, was introduced. CBP serves as the 
operational lead for ABCI, partnering with other DHS agencies, as well 
as other federal, state, local, and tribal law enforcement agencies, 
bringing together resources and fused intelligence into a geographical 
area that has been heavily impacted by smuggling activity. We continue 
to build a stronger relationship with the Government of Mexico, which 
continues to take helpful steps to stem the flow of OTMs, to create a 
safer and more secure border through the Border Safety Initiative and 
special repatriation programs. In doing so, we continue to enhance our 
ability to fight terrorism, illegal migration, and crime in that border 
area.
    DHS and the DOJ have partnered to develop the IDENT/IAFIS 
integrated workstation, which captures a single set of fingerprints and 
submits them simultaneously to DHS' Automated Biometric Identification 
System (IDENT) and DOJ's Integrated Automated Fingerprint 
Identification System (IAFIS) for identity checks. These integrated 
systems were deployed to all Border Patrol stations in 2004. With 
immediate access to IAFIS, our Agents have identified thousands of 
egregious offenders, including murderers, rapists, kidnappers, and drug 
traffickers, who otherwise may have gone undetected. This is a 
significant step towards improving national security and greatly 
enhancing our ability to secure our nation's borders.
    The U.S. continues to experience a rising influx of other than 
Mexican nationals, or OTMs, illegally entering the country. For FY05, 
non-Mexican illegal aliens (NMIA), often referred to as OTMs, 
apprehensions are running at a rate of 136% over FY 04's record number 
of OTM apprehensions on the southwest border, and 119% over the record 
national FY 04 OTM apprehension figure of 75,389. Border Patrol 
processes all apprehended OTMs for removal proceedings. The growth in 
the apprehension of non-Mexican illegal entrant aliens, however, 
combined with other detention requirements, in many cases leads to 
their release on their own recognizance.
    To address this situation by expediting the removal process for 
OTMs, in August 2004, DHS issued a Federal Register Notice allowing CBP 
Border Patrol Agents to place certain illegal aliens, apprehended 
between the ports of entry within 100 miles of the border and within 14 
days of their illegal entry, into Expedited Removal (ER) proceedings. 
ER proceedings shorten the time spent in detention facilities and 
eliminate appearances before immigration courts and judges. ER was 
initially implemented in five Border Patrol sectors. Tucson and Laredo 
Sectors fully instituted the process, with San Diego, El Centro and 
Yuma Sectors using ER cases for aliens who would otherwise be subject 
to a reinstatement of prior orders of removal.
    ER is not a new procedure. It was created in the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, and has 
been used at ports of entry since 1997. Expedited Removal is a powerful 
tool that speeds the removal of aliens who are attempting to, or have 
entered the country illegally. When someone is placed in expedited 
removal processing, the person is detained and returned to his or her 
country as soon as circumstances will allow. This drastically shortens 
the typical detention period and can relieve pressure on detention 
resources.
    As with the implementation of expedited removal at ports of entry 
over the last nine years, special safeguards are in place. DHS has 
taken a measured and careful approach to the expansion of expedited 
removal, and has provided comprehensive training for our agents, to 
ensure that those who may have legitimate asylum claims will be 
referred to a Citizenship and Immigration Services (CIS) asylum 
officer.
    Aliens processed in expedited removal are required to be detained 
by law. This detention, and subsequent removal has had a large 
deterrent effect. Let me provide you with a specific example: the Rio 
Grande Sector was experiencing very large numbers of Brazilian-national 
apprehensions before the ER process was implemented. The Sector had 
been apprehending an average of 160 Brazilian nationals per day prior 
to the implementation of the ER process. On July 2, 2005, ER was 
introduced into the Rio Grande Valley Sector (formerly the McAllen 
Sector) to streamline the removal process. Within the first week 
Brazilian apprehensions started dropping precipitously, and now are 
averaging about 20 or less per day.
    This month, Secretary Chertoff approved expanding the use of ER to 
the remaining Southwest Border Sectors. DHS expects that ER, and the 
associated general rule of detention pending removal, will become a 
significant tool to deter future illegal migration between the ports of 
entry, particularly for non-Mexican illegal alien nationals who transit 
through Mexico.
    In closing, CBP Border Patrol is tasked with a very complex, 
sensitive, and difficult job, which historically has presented immense 
challenges. We face these challenges every day with vigilance, 
dedication to service, and integrity as we work to strengthen national 
security and protect America and its citizens. Mr. Chairman, I want to 
take this opportunity to thank you, as well as Ms. Sanchez, and each 
Member of this Subcommittee for your strong support of all of the men 
and women of U.S. Customs and Border Protection, including the Border 
Patrol. We appreciate your continuing commitment to border security and 
we are grateful for your support. I would be pleased to respond to any 
questions that you might have at this time.

    Mr. Lungren. Thank you very much, Chief Aguilar.
    The chair now would recognize Mr. John Torres, acting 
director of the Office of Detention and Removal Operations, 
U.S. Immigration and Customs Enforcement of the Department of 
Homeland Security, to testify about the detention and removal 
capacity available for the expedited removal process.

                    STATEMENT OF JOHN TORRES

    Mr. Torres. Good afternoon, Chairman Lungren, Ranking 
Member Sanchez, Congressman Rogers and distinguished committee 
members. Thank you for the opportunity to address the role of 
immigration and customs enforcement in implementing that 
expedited removal program along the southwest border.
    I would like to begin my testimony by providing the 
subcommittee with a brief overview of detention and removal 
operations, mission and achievement. DRO's mission is the 
apprehension, detention and removal of illegal aliens through 
the fair enforcement of our nation's immigration laws. In 
fiscal year 2004, DRO reached unprecedented levels of removal. 
During that period, DRO officers removed 160,000 aliens, 
including over 85,000 criminals. In fiscal year 2005, as of 
July 31 of this year, DRO had removed more than 109,000 aliens, 
including almost 65,000 with criminal records.
    As part of our law enforcement mission, DRO is also 
responsible for managing bed space resources for detained 
aliens. During fiscal year 2004, ICE detained a daily average 
of almost 22,000 individuals. Moreover, the past 2 fiscal 
years, DRO has maintained 100 percent detention capacity.
    As I mentioned before, the ultimate goal of immigration 
enforcement is the removal of illegal aliens from the United 
States. The timely issuance of travel documents by foreign 
governments is critical to achieving this goal since DRO cannot 
remove aliens without proper travel documentation. Relying on 
the cooperation from the State Department, a key stakeholder in 
the arena of immigration enforcement, ICE continues to work 
with foreign government officials in order to expedite the 
issuance of travel documents.
    DRO is also improving the removal process through greater 
utilization of video teleconferencing, which allows foreign 
government embassy officials to interview their nationals from 
detention centers around the country. The Department of 
Homeland Security employs several tools in order to accomplish 
its mission in effective immigration enforcement. Expedited 
removal is one of those tools.
    E.R. allows detention and removal operations to quickly 
remove certain aliens who are either seeking entry or who have 
recently entered the U.S. illegally. Expedited removal applies 
to aliens who have no valid entry documents or who have 
fraudulent travel documents, are apprehended within 100 miles 
of the border and who cannot demonstrate that they have been 
present in the United States for more than 14 days following 
their illegal entry.
    Expanded expedited removal has primarily been directed 
toward nationals of other countries, of countries other than 
Mexico and Canada, primarily known as OTMs, ``other than 
Mexicans,'' and to a certain extent, Mexican and Canadian 
nationals with criminal backgrounds involved in alien smuggling 
or who have a history of repeated immigration violations.
    The Border Patrol initially implemented this expanded E.R. 
authority in the Tucson and Laredo sectors in September 2004. 
Additionally, from June through August of 2005, a focused 
enforcement operation was conducted in the Rio Grande Valley 
sector. On September 14 of this year, DHS expanded E.R. 
authority across the entire southwest border. As of September 
5, over 17,000 aliens have been referred over to DRO and placed 
in an expedited removal proceeding, with over 14,500 of those 
being removed, roughly about 85 percent.
    The E.R. process results in a final order of removal which 
prohibits reentry for a period of at least 5 years. This deters 
unlawful entry and makes it possible to pursue future criminal 
prosecution against those who continue to enter the United 
States in violation of the law.
    However, the most important benefit of expedited removal is 
that it streamlines the processing of inadmissible aliens, 
because individuals in E.R. proceedings are generally not 
entitled to a hearing before an immigration judge or eligible 
for release on bond unless they express a credible fear of 
return to their country.
    In fiscal year 2004, the average detention time for third 
country nationals and removal proceedings before an immigration 
judge, from section 240 of the Immigration Nationality Act, was 
71 days. However, the average length of detention for those 
same third country nationals placed in the expedited removal 
proceedings who did not claim a credible fear was only 25 days.
    Expedited removal is an excellent tool to deter illegal 
migration, and mandatory detention ensures measurable progress 
toward 100 percent removal rate. DRO and ICE fully supports the 
principle of expedited removal, as it deters foreign nationals 
without protection claims from illegally entering our country, 
ensures expeditious removal of illegal aliens present in the 
United States and reduces the growth of the absconder 
population.
    Deterring future entries and accelerating the removal of 
aliens will further enhance DHS's ability to secure the border 
and to focus its resources on threats to public safety and 
national security.
    In conclusion, with the implementation of the expedited 
removal program, DRO has partnered with the Border Patrol in a 
DHS initiative designed to utilize our combined resources in 
order to secure the southwest border. By aggressively enforcing 
these laws, we will continue to seek to strengthen the legal 
immigration process for worthy applicants and deter criminal 
and terrorist organizations that threaten our way of life.
    Thank you for the opportunity to testify before you today, 
and I will gladly accept any questions you have.
    [The statement of Mr. Torres follows:]

                  Prepared Statement of John P. Torres

INTRODUCTION
    Chairman Lungren, Ranking Member Sanchez, and distinguished 
Committee members, thank you for the opportunity to address the role of 
Immigration and Customs Enforcement (ICE) in implementing the Expedited 
Removal Program along the Southwest Border. I would like to begin my 
testimony by providing the Subcommittee with a brief overview of 
Detention and Removal Operations' (DRO) mission and achievements.
    DRO's mission is the apprehension, detention, and removal of all 
illegal aliens through the fair enforcement of our nation's immigration 
laws. This critical mission also includes the management of non-
detained individuals while their cases progress through immigration 
removal proceedings. In Fiscal Year (FY) 2004, DRO reached 
unprecedented levels of both removals and fugitive alien apprehensions. 
During that period, DRO officers removed 160,000 aliens, including over 
85,000 individuals with criminal records. In FY 2005, as of July 31, 
DRO had removed approximately 109,100 aliens, of which 64,917 were 
criminals. Also in FY 2004, ICE's 17 Fugitive Operations Teams 
apprehended over 11,000 fugitive aliens with final orders of removal. 
This figure represents a 62 percent increase from FY 2003. In FY 2005, 
as of September 22, DRO had apprehended 14,508 absconders.
    As part of our law enforcement mission, DRO is also responsible for 
managing the bed space resources for detained aliens. During FY 2004, 
ICE detained a daily average of more than 21,900 individuals. The year-
to-date statistics for FY 2005, through August, include the detention 
of 218,608 aliens. Moreover, DRO has maintained 100 percent average 
daily detention capacity for the past two fiscal years.
    As I mentioned before, the ultimate goal of immigration enforcement 
is the removal of illegal aliens from the United States. The timely 
issuance of travel documents by foreign governments is critical to the 
removal process, since DRO cannot remove aliens without proper travel 
documentation. Relying on the support from the U.S. Department of 
State, a key stakeholder in the arena of immigration enforcement, ICE 
continues to work with foreign government officials in order to 
expedite the issuance of travel documents. DRO is also improving the 
removal process through greater utilization of video teleconferencing 
(VTEL), which allows foreign government embassy officials to interview 
their nationals from detention centers around the country. VTEL has 
recently been installed at the Honduran Consulates in Houston and Los 
Angeles, and is expected to be installed at the Honduran Consulate in 
Phoenix within the next month.
    The Department of Homeland Security (DHS) employs several tools in 
order to accomplish its mission; Expedited Removal (ER) is one of those 
tools. ER allows DRO to quickly remove certain aliens who are either 
seeking entry or who have recently entered the U.S. illegally. In 
September 2004, DHS began implementing Expedited Removal on a limited 
basis between ports of entry. This expanded ER applies to aliens who 
have no valid entry documents or who have fraudulent travel documents, 
are apprehended within 100 miles of the border, and who cannot 
demonstrate that they have been present in the U.S. for over 14 days 
following their illegal entry. Expanded ER has primarily been directed 
towards third-country nationals (nationals of countries other than 
Mexico and Canada) and to certain Mexican and Canadian nationals with 
criminal backgrounds, involvement in alien smuggling, or a history of 
repeated immigration violations.
    This expanded ER authority was initially implemented by the Customs 
and Border Protection (CBP) Office of the Border Patrol in the Tucson 
and Laredo Sectors. From June through August 2005, a focused 
enforcement operation was conducted in the Rio Grande Valley Border 
Patrol Sector. Most recently, on September 14, 2005, DHS expanded ER 
authority from three to nine Border Patrol Sectors, implementing the 
program across the entire Southwest border. As of September 5, 2005, 
17,428 aliens have been placed in ER proceedings, with 14,679 being 
removed.
    The ER process results in a final order of removal, which prohibits 
re-entry for a period of at least five years, absent special 
permission. This deters unlawful entry, and makes it possible to pursue 
future criminal prosecution against those aliens who continue to enter 
the United States in violation of the law. But the most important 
benefit of ER is that it streamlines the processing of inadmissible 
aliens, because individuals in ER proceedings are, generally, not 
entitled to a hearing before an Immigration Judge, or eligible for 
release on bond, unless they express a credible fear of return. In FY 
2004, the average detention time for third-country nationals in removal 
proceedings before an Immigration Judge under Section 240 of the 
Immigration and Nationality Act was 71 days. However, the average 
length of detention for those third-country nationals in ER not 
claiming credible fear was only 25 days.
    Expedited Removal is an excellent tool to deter illegal migration, 
but the ER program must be carefully managed with the appropriate human 
resources and transportation requirements. Moreover, mandatory 
detention ensures measurable progress toward a 100 percent removal 
rate. Deterring future entries and accelerating removal of aliens 
ordered removed will enhance DHS's ability to secure the border, and to 
focus its resources on threats to public safety and to national 
security.
    Expedited removal between ports of entry has provided DHS with an 
effective means of enforcing our immigration laws. DRO fully supports 
the principle of Expedited Removal as it deters foreign nationals 
without protection claims from illegally entering our country, ensures 
expeditious removal of aliens illegally present in the United States, 
and reduces the growth of the absconder population.

    CONCLUSION
    In conclusion, the ability to detain aliens who attempt to enter 
our country illegally while admissibility and identity is determined, 
as well as to quickly remove foreign nationals without protection 
claims, is critical to national security and public safety. With the 
implementation of Expedited Removal, DRO has partnered with the CBP 
Office of Border Patrol in a DHS initiative designed to utilize our 
combined resources in order to secure the Southwest border. By 
aggressively enforcing our immigration laws, we will continue to seek 
the strengthening of the legal immigration process for worthy 
applicants, and to deter criminal and terrorist organizations that 
threaten our way of life.
    I thank you for the opportunity to testify today on behalf of the 
dedicated men and women of DRO, and look forward to working with this 
Subcommittee in our efforts to secure our national interests. I will be 
glad to answer any questions you may have at this time.

    Mr. Lungren. Thank you very much, Mr. Torres, for your 
testimony.
    The chair would now recognize our final witness, Mr. Daniel 
Fisk, the deputy assistant secretary for Cuban and Central 
American affairs and policy planning and coordination for the 
Department of Justice. Mr. Fisk will testify about the State 
Department's role in facilitating country clearance and travel 
documents for the removal of aliens.

                    STATEMENT OF DANIEL FISK

    Mr. Fisk. Chairman Lungren, thank you very much.
    Ranking Member Sanchez, good to see you again--and other 
distinguished members of the committee.
    I appreciate the opportunity to be here today to discuss, 
from the perspective of the State Department's Bureau of 
Western Hemisphere Affairs, our role in supporting the 
expedited removal process for undocumented aliens.
    We fully understand the vulnerabilities posed by insecure 
borders and share your concern about securing our frontiers 
against criminals and terrorists. As the Deputy Assistant 
Secretary of State with responsibility for relations with 
Central America, I am most familiar with the issue of 
undocumented aliens from that region.
    Our role in immigration enforcement is primarily to engage 
with the foreign governments to facilitate their cooperation in 
repatriating their citizens expeditiously. We work closely and 
cooperatively with the Department of Homeland Security, both 
here in Washington and with DHS personnel stationed in our 
embassies overseas.
    As this Subcommittee well knows, other than Mexican 
nationals, some of the largest flows of undocumented aliens 
comes from Central America. These governments are very aware of 
the security challenges posed by this flow to the United States 
and have traditionally worked cooperatively with us to 
repatriate their citizens.
    Since the approval by DHS of the initiative to expand the 
use of expedited removal, we in the Western Hemisphere Affairs 
Bureau have taken several steps to assist with the 
implementation of this.
    First, to make sure that our own diplomatic personnel in 
Central America understand the new policy and its objectives, I 
met last week with our Ambassadors to that region to walk them 
through the policy. Prior to that, in the case of El Salvador 
specifically, our Embassy there hosted a DHS delegation for 
initial discussions with the government of that country.
    Here in Washington, together with DHS representatives, I 
have met with the Ambassadors from El Salvador, Guatemala and 
Honduras, not only to inform them that the U.S. Government is 
dedicating increased resources and personnel to border 
security, especially to detaining and returning undocumented 
aliens attempting to cross our border, but also to lay the 
foundation for more detailed government-to-government 
discussions on the logistics of implementing this program.
    In Central America, specifically in Honduras, El Salvador 
and Guatemala, U.S. Embassy officials, either at the Ambassador 
or Charge level, have already communicated with senior 
government officials to reinforce this message, reiterating 
that increased border security benefits all countries in the 
region by allowing a greater focus on aliens with criminal or 
terrorist links.
    With this enhanced emphasis on expedited removal, Central 
American governments will be required to dedicate more 
resources and personnel to the repatriation of their citizens 
who are detained while trying to cross our borders illegally. 
In particular, we have emphasized the need for these 
governments to increase the resources they dedicate to 
providing travel documents and streamlining other repatriation 
procedures.
    The response from these governments has been positive. They 
are friends and allies and have approached this with us in a 
constructive manner. For example, the Honduran government has 
already identified consular officials able to travel to DHS 
detention centers for week-long periods to issue travel 
documents. The Honduran Embassy here in Washington is also 
working to put their DHS-provided videoconferencing equipment 
to use to obviate the need for such consular travel. And 
Honduras has agreed in principle to allow more deportee flights 
and increased access to other facilities.
    In El Salvador, we have met with the Minister of Government 
and President Saca himself to enlist their cooperation on 
accepting a greater number of repatriations. The Salvadorian 
government has agreed to form a working group with us to 
examine how best El Salvador can accept greater numbers of 
deportees.
    And in the case of Guatemala, the Guatemalan Foreign 
Minister has agreed that Guatemala will take the necessary 
measures to accept the increased flow of its repatriated 
citizens.
    The Central American nations have been cooperative, but 
they are looking to the United States for help in processing 
the return of these migrants. Specifically, some countries have 
asked for resources to help improve airport reception detention 
facilities to deal with returned criminal aliens and to expand 
processing facilities to handle an increased number of flights.
    Mr. Chairman, we agree that securing America's borders is a 
critical issue. We look forward to continuing to work with our 
colleagues in DHS in implementing the Secure Border Initiative. 
Again, thank you for the opportunity, and I will be happy to 
take questions.
    Mr. Lungren. Thank you very much for your testimony.
    Again, I would just mention for Mr. Souder's edification 
that we have an emergency GOP conference at 3 o'clock, so we 
are going to have proceed expeditiously here. And I would 
presume that if we have other members who come and want to ask 
questions, we might have to recall the witnesses at a future 
date.
    I will just limit myself to 5 minutes.
    Mr. Fisk, what you have told us sounds very, very positive, 
and I would assume that members of Congress may be positively 
disposed to assisting some of these countries with some of the 
requirements that they have if that is going to lead to greater 
implementation of expedited deportation.
    It strikes me, though, that all the countries you mentioned 
are countries who are beneficiaries of the Central American 
Free Trade Agreement that many of us just worked on here in the 
Congress, and I would hope those countries would understand 
that many of us who supported that also support the 
implementation of expedited deportation in this regard.
    Can you tell me whether it has ever been discussed in the 
State Department, either shared with or not shared with these 
countries that we are talking about, the authority that you 
have under section 243(d) to withhold issuance of visas to 
nationals of foreign countries who deny or delay accepting 
their citizens back?
    Mr. Fisk. I will speak to what I know in terms of the 
Western Hemisphere Affairs Bureau, and I am not aware that we 
have raised that issue at all with them.
    And I would submit, Mr. Chairman, at this point, these are 
friendly countries. We are trying to approach this, and I am 
convinced they are trying to approach this, in a constructive 
way. And that at this point all these instruments I think have 
their place in terms of the application. But we have not 
specifically discussed that, and at this point, I think it is 
premature to go to them and kind of wave an ugly stick around.
    Mr. Lungren. Well, it may be premature but you should get a 
sense of what we are hearing from our constituents back home. 
And when you see an OTM policy which basically results in 
Brazilians coming to the United States in increasing numbers 
and instead of running away from our Border Patrol officers 
seeking them out so they can be arrested so they can be caught 
and released, you have got to realize that people think that 
maybe waiting around for something else is not what we have in 
mind.
    I understand, I am a friend of these countries, I supported 
CAFTA, but the message ought to be very, very loud and clear 
from the Congress to the State Department that in fact we would 
like action now, not later, and very much appreciate the fact 
that we are being informed of an expansion of this program as 
far as the Department of Homeland Security is concerned, but if 
it does not get an improvement in terms of the documents that 
are required by these other countries, it just may not work.
    Chief Aguilar, can you tell me if the State Department was 
involved in the planning process in this new policy that you 
have articulated?
    Mr. Aguilar. Expedited removal, as implemented, was 
implemented across the nine southwest border sectors. The State 
Department is definitely aware of the concerns that we had--
    Mr. Lungren. Right. I am not asking about whether they were 
aware. Were they part of the planning? When you were coming up 
with this, did you go through the problem that would exist if 
you started getting all these folks and actually filled up all 
your detention beds and we did not have an improvement in the 
cooperation that we are having from these countries, that in 
fact the whole program could not succeed?
    Mr. Aguilar. Yes, sir, it could implode. The State 
Department was being talked to throughout the actual planning 
processes.
    Mr. Lungren. What challenges has the Border Patrol 
experienced in its implementation of the expedited removal 
authority to the three Border Patrol sectors a year ago?
    Mr. Aguilar. Absolutely outstanding situation. Let me give 
you an example, Congressman. In McAllen Center, which was the 
most impacted sector for Brazilians throughout the nation, 
during the first 30 days of implementation of E.R., the number 
of Brazilians apprehended dropped by 54 percent. At the 60-day 
mark, it dropped by over 90 percent and is still continuing to 
drop.
    Mr. Lungren. So the word got out.
    Mr. Aguilar. Absolutely, yes.
    Mr. Lungren. What about challenges? Any particular 
challenges you have had in implementing the policy?
    Mr. Aguilar. No, sir. The only real challenge that we had 
was a bed space requirement, but myself and Mr. Torres worked 
together immediately on making the most of those beds that were 
available at the time of implementation. And since then, I am 
sure the congressman's aware, there have been an additional 
1,800 beds now allocated to DRO.
    Mr. Lungren. But if there were no challenges that you saw 
other than bed space, why hadn't we pursued this policy before?
    Mr. Aguilar. Because at that time when we implemented, we 
had to approach it in a very measured approach because of the 
limited bed spaces that we had. We did not want to overload the 
system.
    Mr. Lungren. So the limiting factor was the bed space.
    Mr. Aguilar. Yes, sir, absolutely.
    Mr. Lungren. And would continue to be the case if we do not 
give you enough space, correct?
    Mr. Aguilar. That is correct.
    Mr. Lungren. Anything else limiting it?
    Mr. Aguilar. No, not from a Border Patrol operations 
perspective. I believe Mr. Torres would have some concerns with 
the ability to remove these people as fast as possible.
    Mr. Lungren. Mr. Torres?
    Mr. Torres. Yes, Mr. Chairman. In addition to the beds and 
having to implement the use of those beds in a measured 
approach, there are two other factors I see that could limit 
the success of expedited removal.
    One of them is the ability for us to get travel documents 
and also obtain the country clearances in a timely fashion. 
Currently, as expedited removal is implemented, it takes ICE 
about 10 days to get a country clearance to send someone back 
on an escort to that foreign country to remove someone.
    When we implemented this, it was an average of about 32 
days in the San Antonio area of detention for each person that 
was arrested. The other part of that timeframe, in that 30-day 
timeframe, had to do with actually getting the travel document. 
In some instances, the majority of the Brazilians did arrive 
with travel documents, but when they did not, it requires us to 
detain them until we actually get those travel documents.
    Mr. Lungren. Thank you very much.
    Ms. Sanchez?
    Ms. Sanchez. Thank you, Mr. Chairman.
    And thank you again, gentlemen.
    I would like to ask Mr. Fisk, what do you say to all of 
this? I mean, has there been--from your standpoint, and I know 
you may have a limited view, maybe you were not in these 
meetings, but from your understanding, what are the types of 
meetings that have gone on to try to iron all of this out? 
Because, according to Mr. Torres, it is not just bed space but 
it is travel documents and county clearances. So what kind of 
collaboration has been going on or has there been, and do we 
need to change that?
    Mr. Fisk. Thanks for the question.
    Having been in government long enough, I realize that the 
interagency process has its own dynamic, just the government 
communicating with itself.
    My assessment is in this case the communication has worked 
very well. Our office, first and foremost Mexican Affairs, was 
brought into the process very early in the process with Mexico 
being an early focus point. Also our Brazilian and Southern 
Cone office also has been involved on the issue of the 
Brazilians.
    From the Central America perspective, I probably spent more 
e-mail time, phone time and meeting time on this issue recently 
in the last few weeks, and it competes with just about any 
other issue, except Nicaragua possibly, in terms of the 
concentration of my time and attention.
    And, frankly, DHS has been very proactive in reaching out 
to us, so I have been very, very pleased and feel like that we 
have been partners in this process. And in fact one of the 
things I wanted to point out in my statement was how much of 
this we have done together with DHS, State and DHS at the table 
together.
    We want to make it clear, and it goes back to Chairman 
Lungren's comment, make it clear what the message is. The 
policy has changed. Expedited removal is a reality. It is 
happening. We are not here to debate that point. It is time to 
move on to the other issue, which is logistical implementation.
    Ms. Sanchez. So the policy has changed, you guys are 
working together. What can you estimate will be the difference 
between the old policy and today's policy with respect to 
actually returning--
    Mr. Fisk. As I understand, and I will defer to my 
colleagues from DHS, but it goes to the issue of how long an 
alien spends time in detention. DHS can speak to what its goals 
are in that. My job at State is not to argue with that, my job 
is to help them make that happen, and that is what we have 
committed to, in this case, the Central Americans specifically.
    Ms. Sanchez. To you, gentlemen.
    Mr. Torres. Sure. With respect to the amount of length of 
stay for people that we arrest and then detain, we would like 
to cut that down by 50 percent. One of DHS's goals currently is 
to get to 100 percent detention of OTMs by the end of fiscal 
year 2006 but also reduce the amount of length of stay that 
each person remains in custody. Currently, as we saw in south 
Texas, it was 32 days. We are seeing that drop now to about 25 
days, and we would like to cut it down even further and get it 
between 10 and 15 days.
    Some of the instances that I talked about in getting those 
travel documents is that some of these countries require a 
personal interview of all their foreign country nationals, of 
their nationals that we are going to return to them. And so 
until they can actually provide a consular official to our 
detention site, we are at their mercy at that point where we 
are detaining someone while the consul will make, what we call, 
a 2-week run. They may hit each facility once every 2 weeks and 
then they will interview as many as they can that day and then 
continue on to the next detention facility.
    That is one of the reasons why we have taken a serious look 
at implementing the video teleconferencing concept, and right 
now Honduras has actually accepted and bought off on that idea, 
and we are working through the implementation of that, and we 
are still awaiting back to hear from El Salvador and Guatemala.
    Ms. Sanchez. Mr. Torres, is 100 percent detention of OTMs 
possible?
    Mr. Torres. With the current resources we have, no, but 
that is why we have a homeland security at DHS level working 
group with representatives not only from State but from 
Detention and Removal Operations, from our Investigative 
Division, from the Office of the Border Patrol, as well as from 
throughout the remainder of Customs and Border Protection, 
their resources.
    They are all working very hard at this over the past 6 to 8 
weeks, and this has been one of their top priorities. Their 
sole focus right now is, how do we make this work and how do we 
actually identify how many resources we will need and what will 
it cost them.
    Ms. Sanchez. What is the criterion used to determine 
whether an OTM individual arrested by the CBP versus a criminal 
alien arrested by the ICE agents is detained? And how is it 
possible to address these competing demands given the 
tremendous shortage of funded detention space?
    Mr. Torres. That is an excellent question. We have our 
priorities. We set a prioritized scale of how we implement our 
detention bed space. Obviously, national security is the 
highest priority. Community safety is another priority, and 
then there are some people that we arrest that its mandated 
statutorily that we have to detain them. I am talking about 
criminal aliens that are aggravate felons that fit into that 
category. In this instance also, when you use expedited 
removal, it is mandated we have to, by statute, actually detain 
the aliens.
    So the question then becomes, do we hold a criminal or do 
we hold someone that is a non-criminal that is here that is 
being charged with expected removal, which is one of the 
reasons why we are using the measured approach.
    In working with all three of our staffs here and addressing 
the problem, we take a look at we do not want to let criminals 
back out on the street, we have to ensure that there is 
sufficient bed space for national security arrests and still be 
able to apply a significant portion of our beds for expedited 
removal of non-criminals. And so we look at other ways to make 
the system more efficient, such as getting travel documents 
more quickly or being able to get country clearances for our 
officers that travel in a more expeditious manner.
    Mr. Lungren. Thank you.
    Mr. Souder?
    Mr. Souder. I appreciate we have a time restriction here, 
so I am going to ask a series of questions and would ask for 
written responses. I will get you the questions in writing so 
that you do not have to necessarily remember them all.
    First, in OTMs, we have in the staff supporting documents 
here, Mr. Torres had some but from Pakistan and Iran, and I 
know this is collected because at San Isidro I was given how 
many people had been detained from terrorist-watched nations, 
how many were actually on a terrorist watch list. But could you 
give us a list that you have of the OTMs that you have 
intercepted, why don't we say, this year from terrorist-watched 
nations?
    Then I am also, as you well know, interested in narcotics. 
There is a difference between somebody indicted and somebody 
who is on a watch list, that you would expect they are part of 
an organization. I would like to know how many of those may be 
there that, in effect, either we are going to deport or would 
in worst case be let go to return on their own recognizance.
    Also, the percentage that are actually on a terrorist list, 
which would be the highest priority from the national security.
    Then we have some information on this but I would like to 
know who actually shows up at their deportation hearing. Are 
they stupid or are they people with a challenge? Are they 
people who are ready to go home? It is not clear why if you 
were let go on your own recognizance you are going to show back 
up.
    And I would like some kind of comment on that. And if you 
would also give us--I heard the chairman's question, and you 
answered this to some degree, but if you could--I heard Mr. 
Torres make the comment--I am sorry, Mr. Aguilar's opening 
statement, but that you said that you felt expedited removal 
was a deterrent.
    Do you believe it is more of a deterrent than being held in 
prison, say, for 6 to 12 months before you are deported? 
Because in many of these cases, particularly if it is not that 
far, they will work their way right back up.
    And since we know they have committed an illegal act or 
they would not have been detained, and we are detaining them 
not technically doing the whole term, I do not understand, and 
it is clearly, as you stated a beds question, why they should 
be let go on their own recognizance at all.
    Another question I have is, do we have any Mexican citizens 
who have been on a terrorist watch list? Because part of this 
debate over the border and OTMs, and I will ask that also of 
other Central and South Americans, or in effect do we need to 
separate the OTM and the Mexican question? One is more of a 
work and immigration question, one is more of a terrorist 
question.
    And if you have people that you have intercepted on a 
terrorist watch list who have a Mexican I.D. or a Nicaraguan 
I.D. or an Ecuadorian I.D. or a Brazilian I.D., were they 
actually long-time nationals of those countries or are they 
people who got a Mexican I.D. or a Brazilian I.D.? In other 
words, in the homeland security area as we look at this and try 
to look at the broader question of how we are going to secure 
the border, which is very controversial in how we are going to 
deal with immigration and other questions.
    But in dealing with the OTMs, are we really looking in a 
security risk at Mexicans, Central and South Americans here as 
a security risk or are we actually looking in a smaller group 
and where are they, and do some of them move then if would just 
concentrate on them, to pick up false I.D.s, and then does that 
give you when you are screening a whole different look?
    And particularly in the detention if we have a limited 
number of beds, if we don' fund it to give 100 percent, 
shouldn't that be the target then of those who are greatest 
risk if you say you have a national security type of thing? And 
I wanted to see the data that would, in effect, back that up.
    I thank you for your work, look forward to continuing with 
you as we go through multiple hearings of this committee and 
also the Government Reform and Oversight, but we are trying to 
move through some legislation yet this fall, if possible, on 
this border, on OTMs, on the guys who do the running, whether 
we need more beds.
    One other comment also: I am bothered by this 100 percent 
capacity question. I have visited pretty much almost every 
crossing on the South and a few in San Isidro and the major 
Texas crossings multiple times. I have never seen the beds 
full. I have been there in the middle of the night, I have been 
there in the morning, I have been there in the afternoon. I 
have never seen them full at any single location. And I am 
curious where that number comes from.
    Can't they at least be detained for a while then before 
they are released? In fact, the last two times I did not see--I 
think there were two people in the whole unit at the border.
    Mr. Lungren. You are going to submit questions?
    Mr. Souder. Yes. I will give those in writing, and they 
have got the general drift. And I believe the data is there.
    Mr. Lungren. Right.
    I want to thank you for appearing. We normally would have a 
longer hearing and have more members here, but we have had some 
unexpected news today, and we are required to have a Republican 
conference that was not scheduled until about 2:10 today.
    We thank you for this.
    This subcommittee will continue with its interest in this 
issue, and I just want to assure you that we congratulate you 
for expanding this program. But I should also tell you that 
members of Congress feel very, very, very strongly about this 
issue, and I think most of them would encourage you not only to 
do what you are doing but to be as vigorous in pursuing that as 
possible.
    And once again, thank you for being here.
    This subcommittee hearing is adjourned.
    [Whereupon, at 2:56 p.m., the subcommittee was adjourned.]

                             For the Record

  Questions for For David Auilar and John P. Torres From Hon. Mark E. 
                                 Souder

    1. Do you believe expedited removal is more of a deterrent for OTMs 
than being held in prison for six to 12 months before deportation?
    Response: The Department believes that one hundred percent 
detention and guaranteed rapid removal of the vast majority of OTMs via 
expansion of Expedited Removal will have far more deterrent effect than 
the current approach because it will achieve increased certainty of 
outcome at an acceptable cost. Six to twelve months of ICE detention is 
far more costly than the two to five weeks of detention that are 
usually needed to arrange travel documents, country clearance and 
transportation for repatriation in an Expedited Removal (ER). The costs 
of so-called ``regular'' removal proceedings under Section 240 of the 
Immigration and Nationality Act, which include the costs to the 
government of the immigration judges and ICE trial attorneys that 
prosecute the cases, are also significantly higher than those 
associated with expedited removal. In addition, the longer process 
enables the aliens to apply for forms of relief and extend their stay 
by repeated appeals. While it is anticipated that the vast majority of 
OTMs would be removed via ER, CBP would like to continue the 240 
proceedings in order to pursue criminal charges against the alien or to 
ensure the longer bar to reentry (NB: Normal Section 240 proceedings 
can result in a ten year bar to reentry, while Expedited Removal 
provides for a five year bar).

    2. Could you provide a list of the OTMs that have been intercepted 
this year from terrorist-watched nations?
    Response: Nationals from foreign countries are evaluated based on 
threats. This information is Law Enforcement Sensitive and will be 
provided upon request.

    3. As you know, there is a difference between an OTM that is 
indicated and one who is on a watch-list that you would expect is a 
part of an organization. How many of those that are scheduled to be 
deported return on their own recognizance? Also, what percentage of 
OTMs that are being deported, are on a terrorist watch-list? I am also 
interested in which of these OTMs actually show up at their hearings 
unless they are looking to be deported.
    Response: A: Approximately 15 percent of all aliens scheduled for 
removal and who were not detained at the time of their order surrender 
for removal. This means approximately 85 percent do not surrender for 
removal. Some portion of the 85 percent eventually self-deport. 
However, our databases do not record whether the alien self-deported or 
whether the alien's deportation was arranged for and paid by the 
government. In addition to those aliens who later self-deported, others 
were removed after being apprehended by fugitive operations.
    B: This information is law enforcement sensitive and can be 
provided separately upon request.
    C: ICE does not collect data that shows how many aliens failed to 
show for their hearing. The Executive Office for Immigration Review 
annual statistical report indicates an overall failure to appear rate 
for all aliens (not just aliens of special interest) of 25 percent for 
FY 2004. This number includes all aliens scheduled for removal 
proceedings, regardless of detention status. The rate for non-detained 
aliens is 40 percent and the rate for those released on bond or 
recognizance is 37 percent.
    The Department of Justice Office of the Inspector General (OIG) 
issued a report in 2003 (Report #I-2003-004) that focused on the former 
INS' ability to remove aliens based on their detention status. Of their 
sample, the OIG found that 92 percent of detained aliens were removed. 
Of the non-detained aliens, the OIG found that only 13 percent were 
removed.

    4. Does our country have any Mexican citizens who have been on a 
terrorist-watch list? Do you have people that have been intercepted on 
a terrorist watch-list who have a Mexican, Nicaraguan, Ecuadorian, or 
Brazilian ID? As we deal with OTMs, are we really looking at Mexicans 
and Central and South Americans as a security risk or are we actually 
looking for a smaller group that we focus our concentration on to pick 
up false ID's?
    Response: The content of the Terrorist Screening Database (TSDB) is 
maintained by the Terrorist Screening Center (TSC) under HSPD-6. Border 
Patrol Agents have received counterterrorism training and are trained 
to look for indications in an alien's personal effects, demeanor and 
behavior for terrorist or other factors that might require additional 
scrutiny or screening, regardless of nationality. Border Patrol policy 
and protocol requires referring any suspected terrorists or persons 
that may present a terrorism risk for additional records checks via the 
National Targeting Center (which links with the TSC's terrorism watch 
list). ICE is notified of the apprehension of potential suspects 
through the NTC; the Joint Terrorism Task Force is also alerted for 
possible further action.
    With regard to false identification, most aliens apprehended are 
not in possession of documents. However, agents are trained to: 
question those persons apprehended about their immigration status; look 
for signs of criminal activity (such as gang membership or smuggling 
operations); identify attempts at false identities; and watch for other 
terrorist indicators. All apprehendees' names and fingerprints are run 
through IDENT/IAFIS to determine if there are outstanding criminal or 
immigration violations. In addition, through questioning, agents are 
often able to identify false citizenship claims. For example, using 
various Spanish dialects or idioms, for example, which may be unknown 
to someone posing as being from a certain country.

    5. I am troubled by the multiple reports that we are at 100-percent 
capacity for detention beds. I have visited every major border crossing 
on the southern border and the majority of crossings on the northern 
border and I have yet to see the beds full at a single location. In 
fact, the last time I was at the southern border, there were only two 
people who were being detained.
    Response: ICE DRO operates at 100 percent of funded detention 
capacity. As a function of the apprehension and removal process, the 
population at any detention facility will fluctuate during any given 
period. However, the fluctuation will always be within a small 
percentage of the ICE operational capacity. The Office of Border Patrol 
and the ports-of-entry maintain holding cells within their offices. 
These cells are designed for very short-term detention; they are not 
staffed or equipped for sustained detention, but as interim housing 
until the alien can be transferred to a DRO detention facility. As a 
result, these beds are not counted as part of the DRO capacity for 
detention.

        Questions for the Record from Representative Dan Lungren

    1. The Subcommittee is very supportive of the new expedited removal 
policy initiative of the Department but your written testimony provides 
very few details about how the Border Patrol plans to effectively 
implement the use of expedited removal along the entire southwest 
border of the United States. The success of this program is truly in 
the details--specifically the level of coordination and cooperation 
between CBP, U.S. Immigration and Customs Enforcement, and the State 
Department.
     Was U.S. Immigration and Customs Enforcement (ICE) 
involved in the planning process and if so, to what extent?
    Response: ICE has been involved in the planning and execution of 
the new expedited removal initiative. ICE's Detention and Removal (DRO) 
and CBP have worked together to streamline the removal process and 
maximize efficiencies. CBP and DRO exchange information to track 
developing trends in apprehensions and provide resources where needed. 
Likewise, DRO has worked with the Department of State to elicit support 
from those countries most affected by the new expedited removal policy. 
State and DRO encourage these countries to increase their efforts in 
issuing travel documents and receiving their nationals quickly to 
minimize the aliens' time in detention.

     Was the State Department involved in the planning process 
and if so, to what extent?
    Response: Through the US-Mexico Border Partnership Plan of 2002 and 
strengthened in the Security and Prosperity Partnership for North 
America (SPP), DHS and the Department of State are working with the 
Government of Mexico to coordinate visa policy as one of many tools to 
enhance security in the hemisphere. The Department of State is also 
currently working with the governments of several Central American 
countries to expedite the issuance of travel documents necessary for 
the repatriation of their nationals and to increase capacity to receive 
their repatriated nationals. For example, El Salvador presently accepts 
only 140 of its nationals per week even though the average weekly 
apprehension rate for Salvadoran nationals is over seven times higher 
at approximately 1,000. This 140 equated to two flights of 70 El 
Salvadoran nationals, split fairly evenly between criminal and non-
criminal aliens. However, as the result of discussions between the 
government of El Salvador and DHS, in October 2005, El Salvador agreed 
to an unlimited increase in the number of non-criminal deportees per 
week and to an increase in the number of flights for these non-criminal 
deportees. A limit of one flight of 70 criminal deportees per week 
remains.

     What challenges has the Border Patrol experienced since 
implementation of expedited removal authority to three border patrol 
sectors a year ago? How has the agency dealt with those challenges?
    Response: The ER pilot program was implemented in the Tucson and 
Laredo Border Patrol Sectors in September 2004. During the planning of 
the pilot program, ICE dedicated substantial detention resources to the 
program. Therefore, no placement challenges were experienced by those 
sectors. As expedited removal is expanded to other sectors, the 
Department has worked to allocate adequate detention resources and 
prioritize aliens for detention. For example, under ``Operation Texas 
Hold `Em,'' ICE and CBP partnered to detain one hundred percent of 
apprehended Brazilians for Expedited Removal in the Rio Grande Valley 
Sector (formerly McAllen). The Secretary announced expansion of 
Expedited Removal to the entire southwest border in September.
    A Department working group considered: 1) designated points of 
contact for both agencies in the field and at the Headquarters level; 
2) transportation issues; 3) daily intake levels; and 4) the initial 
nationalities that were going to be processed for the 1,800 newly-
acquired detention beds primarily for the Del Rio and Rio Grande Valley 
Sectors. The remaining seven southern border sectors were also advised 
to expand the use of ER to the extent possible based upon available 
detention beds by their local ICE Detention Centers.

    2. In March, this committee examined whether U.S. Customs and 
Border Protection (CBP) and U.S. Immigration and Customs Enforcement 
(ICE) should be merged back together because of reported problems 
created by the artificial separation of border enforcement and interior 
enforcement. One of the problems the committee identified is that 
``bureaucratic walls'' have developed between the two agencies.

     Please describe for the committee the challenges your 
agency faces by having a separate agency making the decisions whether 
the aliens your agents apprehend are able to be detained? What level of 
cooperation and what changes are necessary to make this policy 
initiative a success?
    Response: The Department is working with CBP and ICE to ensure that 
a new model of enforcement is being developed so that CBP and ICE 
detentions can be tied together. To meet the Secretary's stated goal of 
ending catch and release, the Department is developing an allocation 
plan of detention beds, a personnel plan and transportation plan to 
accommodate these removals

    3. The Border Patrol is truly ``on the front lines'' of defending 
our homeland. However, the Department's ``catch and release'' policy 
for dealing with Other than Mexicans has only created an incentive for 
more illegal entries.
     In your view, what impact have you seen over the past year 
since expedited removal has been used, and what impact do you 
anticipate from full implementation along the entire southwest border?
    Response: The use of expedited removal is an effective deterrent 
against attempted illegal entry because it requires mandatory detention 
and rapid repatriation. ER sends a strong message that an illegal 
entrant will not be released into the country but detained and removed. 
In the Laredo and Tucson Sectors, the original ER pilot sectors, ER has 
had a significant impact. Implementing ER in these sectors ended the 
significant increase in the rates of OTM apprehensions that had been 
seen in neighboring sectors without ER. The Rio Grande Valley Sector, 
for example, began ER on July 1, 2005 under ``Operation Texas Hold-
`Em''. In that sector, the majority of aliens placed in ER proceedings 
were Brazilian nationals. Analysis of statistical and intelligence 
indicators of application of ER for Brazilian illegal entrants in the 
Rio Grande Valley Sector showed that a rapid and significant decrease 
in apprehensions resulted from the implementation of ER. The 
combination of detention resources and accelerated repatriation has 
deterred illegal entry by Brazilian nationals in the Rio Grande Valley. 
Brazilian illegal entrant apprehensions, which were averaging 125 to 
131 per day during May and June, decreased to only ten per day by the 
end of August. The successful outcome of ``Operation Texas Hold-`Em'' 
in the Rio Grande Valley Sector is attributed to the close cooperation 
between CBP and ICE/DRO in allocating bed space and other detention and 
removal assets to ensure the detention and removal of all apprehended 
Brazilians placed in ER.
    The San Antonio Field Office of ICE/DRO has also been helpful in 
providing not only the maximum number of detention beds available in 
the system and securing travel documentation and repatriation 
transportation for the program. The overwhelmingly positive operational 
outcome of `Operation Texas Hold`Em'' hinged upon this strong and 
continued level of support for the duration of the operation. 



[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    On September 14, 2005, Secretary Michael Chertoff announced the 
extension of ER across the entire southwest border. This completes the 
implementation of ER as an enforcement option across the southwest 
border. San Diego, El Paso, Marfa, Del Rio, Yuma, Rio Grande Valley, 
and El Centro have complete ER authorization. Tucson Sector (TCA) and 
Laredo Sector (LRT) continue to have DRO bed space available for all of 
their apprehended ER eligible OTMs. With the implementation of ER in 
Del Rio Sector on September 19, 2005, the shift of illegal Brazilian 
entrants to the Del Rio Sector, following the implementation of ER in 
the Rio Grande Valley Sector, has been reversed.
    To support the ER expansion, ICE/DRO has allocated 1,800 additional 
beds. The 1,800 added beds have a positive operational impact on 
Brazilian OTM apprehensions. For example, for the entire month of 
October 2005, only five Brazilian illegal entrant aliens subject to ER 
proceedings were apprehended in Del Rio Sector. Although a total of 
nine Brazilian OTMs were apprehended, four were juveniles and family 
members who, according to policy, are not placed in Expedited Removal. 
Therefore, prioritization for detention space has been shifted to 
Hondurans, although apprehensions show signs of declining below 
available bed space.
    The ER program has shown significant success everywhere it was 
implemented. ER is central to the implementation of any plan to detain 
and remove all illegal entrant OTMs subject to removal.

    4. What are the specific procedures that CBP agents must engage in 
when processing an alien for possible expedited removal?
    Response: Before DHS can process an illegal alien for ER, DHS must 
first determine that:
         The alien is present in the United States, without 
        having been admitted or paroled following inspection by a CBP 
        Officer at a designated port-of-entry, AND
         The alien was encountered by a Border Patrol Agent 
        within 100 air miles of the U.S. international border and has 
        not established, to the satisfaction of the agent, a physical 
        presence in the U.S. continuously for the fourteen (14) day 
        period immediately prior to the date of encounter. Once that 
        determination has been made, DHS must also ensure that the 
        alien is eligible to ER.
         The alien is in a category of persons qualified for 
        ER. ER cannot be applied to the following aliens, due to 
        policy, statute, or judicial action: Unaccompanied Juveniles; 
        Cubans; El Salvadorans; and verified members of the class 
        action settlement in American Baptist Churches (ABC) v. 
        Thornburgh.
    Aliens placed in ER who indicate an intention to apply for asylum 
or a fear of return are referred to a USCIS asylum officer for an 
interview to determine whether the alien has a credible fear of 
persecution or torture. If the alien establishes a credible fear, he or 
she is referred to an immigration judge for removal proceedings under 
section 240 of the Act where the alien can obtain adjudication of his 
or her asylum claim. An alien, who is determined not to have a credible 
fear, after an opportunity for review by an immigration judge, remains 
eligible for ER.
    All persons apprehended--whether ER candidates or otherwise--who 
meet appropriate age guidelines (juveniles under fourteen years of age 
are not included) are entered into the Integrated Automated Fingerprint 
Identification System (IAFIS). This system checks the subject's ten 
fingerprints against IAFIS and IDENT for prior immigration or criminal 
encounters, or violations. Once these checks are completed, and if no 
derogatory information is found, DHS can then process the alien. If it 
is determined that the alien is eligible for ER, DHS verifies the 
availability of bed space and processes the alien for ER. Once the 
processing is complete, ICE detains and removes the alien.

     How much time does this take?
    Response: Aliens are processed through CBP's ENFORCE system. An 
agent will generally take between ninety and one hundred and twenty 
minutes to process the alien through the ER process. If a language 
barrier exists, such as with Chinese and Brazilian nationals, the use 
of an interpreter adds to the processing time.

     Given the additional processing time the Expedited Removal 
process takes, what does the Border Patrol need to ensure that this 
program can be sustained without a reduction in Agent patrol time or 
other necessary duties?
    Response: Although the initiation of the ER process is only 
slightly longer than that required to place an alien in to standard INA 
240 removal proceedings, the entire process is completed much faster 
than the standard removal proceeding. OTM aliens placed in INA 240 
proceedings who are not among the priority detention classes (terrorist 
suspects, criminals) are generally released on their own recognizance 
(OR) with a notice to appear for a future hearing. OR can be 
problematic because release without any significant detention or bond 
does not generally result in removal and therefore encourages numbers 
of other OTMs to try to enter illegally. The continued use and 
expansion of the use of ER should generate sufficient deterrence to 
result in fewer attempted illegal entries, and fewer expedited 
removals, therefore releasing agents for more patrol duties. To 
alleviate some of the differences in processing time over a standard 
removal proceeding, OBP is also planning to streamline the processing 
paths in the ENFORCE system to a single dedicated path for ER. In 
general, however, Border Patrol agents recognize the importance of ER 
as a tool in securing operational control of the border and support its 
use, regardless of processing time.

    5. What does CBP do differently when processing an OTM for 
Expedited Removal versus a Mexican citizen apprehended for illegally 
entering the U.S. for Voluntary Removal? Compare the time involved in 
each process for Border Patrol agents.
    Response: In order to capture the information needed on the legal 
documents required to process an ER case, border agents use two 
separate paths in the ENFORCE system. When an agent has completed the 
IAFIS and IDENT check on the Mexican national and the system responses 
are negative, the agent utilizes the Voluntary Return (VR) path of 
ENFORCE and completes the processing. The processing of a Mexican 
national for a VR to his country usually takes from five to fifteen 
minutes, depending on how quickly the biometric systems provide their 
return information. While the processing of an OTM for ER typically 
takes longer than the processing of a Mexican for VR, it does not make 
a significant difference in the total agent time spent processing 
because the vast majority of individuals apprehended are Mexican 
nationals.

    6. The Subcommittee has a few questions regarding the training of 
Border Patrol agents:
     How many Border Patrol agents have received Expedited 
Removal training?
    Response: Approximately eighty percent (7,970 out of a total of 
9,971) of agents stationed on the southern border have received such 
training. The remaining agents were unavailable for training due to 
travel, temporary details to other duty stations, special operations or 
other temporary assignments and will be trained as soon as practical. 
The northern and coastal border sectors are next in sequence to be 
trained in ER, after development of a single consolidated training 
course, which addresses the unique training needs of sectors from all 
Border Patrol geographic areas.

     Please provide a description of the training program 
including length of time and curriculum.
    Response: The Train-the-Trainer (TTT) sessions are sixteen hours in 
length and are used to train senior-level agents in the processes who 
will return to the field to train other agents. The field training is 
eight hours in length. Both the TTT and field training sessions consist 
of sections regarding the application of Expedited Removal, asylum 
referrals, Enforce Training, and practical exercises. The training 
concludes with a question and answer session followed by a course 
evaluation.
    When available, representatives from CIS Asylum, Detention and 
Removal, and Customs and Border Protection Legal Counsel attended the 
training. These representatives provide valuable information regarding 
the asylum and removal process for persons expressing a credible fear 
of return to their home countries.

     What was the cost to the Border Patrol of providing this 
training to each agent?
    Response: Substantive costs incurred by the Office of Border Patrol 
(OBP) during the Train-the-Trainer sessions were travel and per diem 
costs. This amounted to roughly $12,600.00 per trainer for a total of 
$50,400 for all of the TTT sessions along the Southwest Border. 
Training was supplied by the Office of Training and Development. Local 
field trainers conducted the training at their respective Border Patrol 
stations. Man-hours and training supplies constitute the majority of 
costs incurred during the Expedited Removal field training.

     Will this training become part of the basic new agent 
training provided at the Border Patrol Academy?
    Response: The Border Patrol Academy will be included in the 
development of the new consolidated training syllabus and will be part 
of all training iterations for northern and coastal sectors. The 
Academy is planning to cover ER in both basic and advanced training and 
will develop systems and testing to validate such training.

     How are Border Patrol agents trained to identify aliens 
with credible fear and asylum claims?
    Response: During the Train-the-Trainer sessions, a representative 
from CIS Asylum is present to instruct the asylum portions of the 
class. As part of their training, agents are directed to refer any 
alien claiming any fear of return to their respective asylum office.

    During the Expedited Removal process, agents are mandated to ask 
every alien the following questions:
        1. Why did you leave your home country or country of last 
        residence?
        2. Do you have any fear or concern about being returned to your 
        home country or being removed from the United States?
        3. Would you be harmed if you are returned to your home country 
        or country of last residence?
        4. Do you have any questions or is there anything else you 
        would like to add?
    Agents are also trained to look for non-verbal indications of fear, 
such as crying or trembling. When an alien's verbal response indicates 
any fear of return, or where the alien exhibits non-verbal signs of 
fear, the alien will be referred the local asylum office. Agents are 
instructed to be over inclusive when referring aliens to asylum.
    Agents are also required to read a prepared statement advising the 
alien that if the alien has a fear or concern about return, he or she 
should tell the agent and that the alien will have an opportunity to 
speak privately with another officer about that fear or concern.

    7. In your testimony, you describe the alarming increase of non-
Mexicans or OTMs illegally entering the U.S. Based on your testimony, 
it looks like Border Patrol has apprehended about 90,000 more OTMs in 
FY05 than in FY04. (Note: There were 75,389 OTMs in FY04 and BP says 
that FY05 has seen a 119% increase, which equals 89,712.9 more for a 
total of about 165,101.9 OTMs total for FY05).
     How can this enormous increase be explained in the number 
of OTMs crossing this year from last?
    Response: Economic factors generally spur trends in illegal 
migration and have been the principal motivation for aliens from 
developing nations, including most Central American countries. Another 
reason for an increase in illegal migration by OTMs is because the 
majority of those apprehended have been released on their own 
recognizance to attend immigration hearings. For example, virtually all 
of the OTMs that are scheduled for an immigration hearing at the 
Harlingen District Executive Office for Immigration Review (EOIR) do 
not appear for their hearings. For example, in FY04, the Harlingen 
District EOIR office, in Southern Texas, experienced a ninety percent 
no-show rate for the non-detained OTMs (also referred to as OR OTMs). 
Typically, illegal aliens will migrate to the United States by 
themselves, but upon establishing domicile in the United States, will 
then send for family members to join them, thereby continuing to 
contribute to illegal migration to the United States. Similarly, the 
existence of entrenched smuggling organizations makes the Rio Grande 
Valley Sector, formerly known as the McAllen Sector, a popular corridor 
for illegal aliens. Situated near the Panama Highway corridor, this 
route traverses through Mexico from the Guatemalan border and becomes 
I-35 at the Laredo, Texas border.
     Can you provide the Subcommittee with an overview by 
Sector of how many OTMs are crossing the border and their 
nationalities?
    Response: The information below reflects the Office of Border 
Patrol's apprehensions for the Del Rio, Laredo and Rio Grande Valley 
Sectors from July 1 through the end of September 2005, which accounted 
for seventy-five percent (104,987 of 165,175) of all OTM apprehensions. 

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    The Office of Border Patrol arrested OTMs from 154 different 
countries; sixty-four percent (106,288 of 165,175) of the OTMs were 
nationals of Central American countries.

    8. In your testimony, you mention the dramatic decrease in the Rio 
Grande Sector of Brazilian foreign nationals being apprehended from 60 
to 20 per day since the Expedited Removal program was implemented.
     Has the Border Patrol seen the aliens shift to Sectors 
without the Expedited Removal process in place?
    Response: When the Rio Grande Valley Sector (McAllen) began its ER 
program, there was an initial significant shift of Brazilian illegal 
entrants from MCA to the Del Rio Sector (DRT). This shift bypassed the 
Laredo Sector, which already had ER in place. This shift in 
apprehensions to DRT has been reduced and at the rate of apprehensions 
is even lower than previous levels of apprehensions of Brazilians with 
the implementation of ER in DRT. For the entire month of October, DRT 
has apprehended only nine Brazilian illegal entrants, five of which 
were eligible for ER. By contrast, the week before ER was implemented 
in DRT, there were 321 such apprehensions. No other shift in OTM 
entries to other sectors has yet been identified.

     Have you seen similar reduction rates in apprehensions in 
other Sectors and with other nationalities?
    Response: Since ER has to date concentrated heavily on Brazilians 
and Hondurans, no other significant reductions have been observed for 
other nationalities.
    Below is a depiction of the impact/reduction in Honduran arrest 
along the southwest border sectors from September 18, 2005 through 
October 24, 2005.

----------------------------------------------------------------------------------------------------------------
                                  Arrests--Before ER           Arrests--After ER
           Sector              Expansion (08/12--09/17)    Expansion (09/18--10/24)     Total Percentage Change
----------------------------------------------------------------------------------------------------------------
                San Diego                           26                          39                          50
----------------------------------------------------------------------------------------------------------------
                El Centro                           31                          34                          10
----------------------------------------------------------------------------------------------------------------
                     Yuma                           51                          41                         -20
----------------------------------------------------------------------------------------------------------------
                   Tucson                          293                         210                         -28
----------------------------------------------------------------------------------------------------------------
                  El Paso                          138                         179                          30
----------------------------------------------------------------------------------------------------------------
                    Marfa                           31                          21                         -32
----------------------------------------------------------------------------------------------------------------
                  Del Rio                        2,190                       1,329                         -39
----------------------------------------------------------------------------------------------------------------
                         Laredo                  1,168                       1,087                          -7
----------------------------------------------------------------------------------------------------------------
        Rio Grande Valley                        3,581                       2,887                         -19
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½

                     TOTAL                       7,509                       5,827                        -22%
----------------------------------------------------------------------------------------------------------------

    This table captures the southwest border arrest of all Hondurans 
thirty-sevens days before and after the expansion of ER to the 
southwest border.

    9. Please explain the process for issuing a Notification to Appear 
(NTA) to an alien and then releasing the individual. How many NTAs did 
the Border Patrol issue in FY04 and FY05?
    Response: Aliens who cannot be removed under ER due to the current 
ER policy, statute, or via judicial action, or who otherwise require 
processing before an immigration judge, are referred for a removal 
hearing before an immigration judge under Section 240 of the 
Immigration and Nationality Act. The Border Patrol agent, after 
checking the alien's biographic and biometric information through the 
IAFIS and IDENT systems, and upon receiving a negative response, 
processes the OTM in Enforce to create the necessary forms and case 
file for this referral. Unlike ER, a Section 240 proceeding, barring a 
statutory mandatory detention requirement, allows for a discretionary 
decision by the apprehending agency whether or not the alien may post a 
bond or be released on his own recognizance rather than being detained, 
pending the hearing. Once the alien is processed he is provided with a 
future immigration hearing date, advised of the location of the 
immigration hearing, instructed on the consequences of not appearing 
before the immigration judge on his specified hearing date, advised on 
how to notify the immigration judge in the event of a change of 
address, and released from custody. Aliens, other than arriving aliens, 
who have been denied a bond, have a right to a bond hearing and can be 
ordered released by an immigration judge after they are placed in 
Section 240 proceedings, unless they are subject to mandatory 
detention. See Matter of X-K--, 23 I&N Dec. 731 (BIA 2005).
    During FY 2004, the Border Patrol released 45.25% of OTM 
apprehensions (34,164 of 75,500). During FY 2005, the Border Patrol 
released 69.57% of OTM apprehensions (114,912 of 165,175).

    10. The law requires that all aliens in the Expedited Removal 
process be detained prior to their deportation. Given the number of 
detention beds available, what is the total number of OTMs that Border 
Patrol can place in the Expedited Removal process?
    Response: At the outset of the ER pilot program in the Tucson and 
Laredo sectors, ICE and the Office of Border Patrol agreed that ICE 
would accept all ER cases. ICE completes all required processes to 
remove currently detained aliens, including obtaining travel documents 
from the foreign country. ICE dedicated 1,800 detention beds to the ER 
efforts, resulting in an additional 80 beds a day for the Del Rio and 
Rio Grande Valley The number of available beds is expected to increase 
as the deterrent effect of Expedited Removal results in fewer 
apprehensions

    11. Please describe for us the challenges faced by Border Patrol 
due to the fact that ICE controls the bed space available for aliens 
apprehended between ports of entry.
    Response: Currently there is very close cooperation between ICE/DRO 
and CBP/OBP in addressing and planning for increasing the number of 
detention beds available for ER and in the development of 
transportation plans to accommodate these removals to meet the 
Secretary's stated goal of ending catch and release.

    12. Has any trend analysis been done to determine why for the past 
4 years (FY02-FY05), the McAllen Border Patrol Sector has had the 
largest number of OTMs? What is it about this Sector that makes illegal 
crossing so attractive? (see table on the following page) In addition 
to the Expedited Removal program, what is the Border Patrol doing to 
fortify this area? 


[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Response: While illegal migration has many root causes, economic 
factors often spur the flow of migrants from Central American 
countries.

    13. Over the past year, there have been repeated reports that ICE 
lacks sufficient detention space, which has caused ICE to release 
aliens that should otherwise be detained. However, full implementation 
of the expedited removal initiative along the southwest border will 
inevitably result in the need for more detention space.

     What specific steps is ICE going to take in order to 
ensure that bed space is available for those aliens apprehended by 
Border Patrol that could be processed through expedited removal? What 
specific steps are being taken at the Departmental level to ensure 
adequate bed space?
    Response: ICE DRO fully participates in the Department's Secure 
Border Initiative (SBI). SBI will take a comprehensive view of 
immigration enforcement including border control and interior 
enforcement. ICE DRO, in conjunction with DHS, has been working closely 
with the Department of State and foreign governments to obtain travel 
documents to remove aliens apprehended at the border within 15 days of 
arrest. This expeditious processing and removal timeframe will provide 
a faster turnover of available detention space, which will result in a 
more efficient removal process. In addition, the SBI effort will 
require extensive increases in human and capital resources. The extent 
of that need is still being developed by SBI.

     Was ICE part of the process in development of this 
initiative? Does ICE foresee needing further resources in order to make 
this policy a success?
    Response: ICE is an integral part of the Secure Border as it is 
responsible for the detention and removal of aliens, key components of 
the goal of gaining full control of our borders in order to prevent 
illegal immigration and security breaches.

    14. In your written testimony, you state that ``the ER (expedited 
removal) program must be carefully managed with the appropriate human 
resources and transportation requirements.''
     In your view, what are appropriate human resources and 
transportation requirements needed and do current plans fill these 
needs?
    Response: The Department is developing a comprehensive border 
security and immigration enforcement strategy that will outline the 
necessary resources and requirements.

    15. The Subcommittee is very concerned about the level of 
coordination, or lack thereof, between ICE and CBP, and ICE and the 
State Department to implement the expedited removal initiative.
    a. Is this initiative being coordinated at the Secretary level of 
the Department? And if so, what specifically does ICE plan to do to 
deal with the detention space issue?
    Response: Secretary Chertoff has been very involved in all phases 
of the conceptual and development stages of this initiative and has 
been closely coordinating with other Department Heads. His office has 
worked with ICE and other DHS components to develop a comprehensive 
strategy to accomplish the objectives of the SBI.
    The recent committee trip to the southwest border revealed serious 
management issues with available bed space. Our members were told that 
the decision on how many beds to fill comes from DRO Headquarters. 
However, when committee staff followed up on this issue, they were told 
that the decision is local.
    b. Can you please describe how the decisions about detention space 
are made, and who is responsible for making those decisions?
    Response: ICE operates at 100 percent of funded detention capacity. 
ICE manages its detention capacity nationally, in order to support the 
enforcement continuum as efficiently as possible, while providing for 
the safety and security of the detained population. As a function of 
the apprehension and removal process, the population at any detention 
facility will fluctuate during any given period. However, the 
fluctuation will always be within a small percentage of the ICE 
operational capacity.

    c. Do the local offices have flexibility and some autonomy? In 
other words, if there are available beds in a facility and Border 
Patrol calls ICE to determine if there is room, what steps have to 
occur to fill the bed and who has to sign off on the decision?
    Response: The ICE field offices have flexibility and autonomy. They 
can utilize their authorized detention capacity in order to best serve 
their respective customers, which includes Border Patrol, CBP Field 
Operations, and ICE Office of Investigations. ICE Field Office 
Directors work with their enforcement partners during the planning of 
special operations in order to make detention capacity adjustments 
locally and nationally.

    d. DRO has funding for about 19,400 beds per day. How many of those 
beds are available for the Expedited Removal program? How many current 
aliens in detention are OTMs?
    Response: The breakdown of detention capacity by population type 
can sometimes be very complex. ICE estimates that, prior to the Secure 
Border Initiative, it dedicated approximately 3,000 beds to support 
Border Patrol expedited removal operations in Tucson and Laredo 
Sectors. ICE DRO identified 1,800 additional beds to support expedited 
removal expansion within the scope of the Secure Border Initiative. As 
of the last week in FY2005, ICE had over 15,000 OTMs in custody.

    16. In the DHS announcement and subsequent press interviews, DHS 
has said that they will acquire additional bed space to house the 
expected increase in expedited removal cases. Where will these 
detention beds be located and how will DRO meet the bed space needs for 
the additional OTMs?
    Response: ICE DRO will work closely with the Department and CBP to 
identify the location of those beds.

    17. The Subcommittee understands there is a unit that is dedicated 
to obtaining travel documents and country clearances.
     Can you please describe this unit? (personnel, resources, 
when formed, etc.)
    Response: The Travel Document Unit (TDU) is a unit within the 
Office of Detention and Removal, Removal Management Division. It 
supports the field and overseas entities to ensure the safe and orderly 
removal of persons from the United States. The unit works with 
governmental and non-governmental organizations such as the Department 
of State, TSA, travel agents, commercial airlines, over 200 embassies 
and consulates within the U.S., foreign governments and countless law 
enforcement organizations worldwide. Currently, there is one Chief, 3 
permanent staff officers, 2 officers detailed to the unit from the 
field, 2 officers detailed at overseas posts (Frankfurt and Rotterdam), 
and 1 program analyst.
    The scope of duties of the TDU varies significantly. TDU officers 
procure travel documents, usually for cases where local field offices 
have been unsuccessful in obtaining a travel document. It also provides 
removal support to ICE field offices as well as to ICE and U.S. Embassy 
personnel located overseas. The TDU is responsible for coordinating 
with foreign governments in all aspects of return issues, including 
repatriation agreements and the return travel of fugitives to foreign 
law enforcement authorities.
    The Centralized Ticketing Unit (CTU) was created in 2003 and works 
with the TDU. CTU is staffed mainly by contract staff and is 
responsible for sending removal notification and country clearance 
cables to U.S. Embassies overseas. The cables are routed to ICE 
Attaches or other U.S. Embassy personnel for notification of local 
authorities. The CTU also coordinates with DRO's travel agency and 
field offices in establishing itineraries and ticketing for all removal 
travel, as well as accounting for funds spent for removals via 
commercial airlines.

     What is the process by which DRO personnel work with the 
alien's home country to obtain travel documents and country clearances?
    Response: Once there is a final order of removal in a case, DRO 
field personnel begin the process to obtain a travel document, if 
necessary. Contact is made with the consulate having jurisdiction over 
the location of the field office. DRO sends the consulate a request for 
a travel document which includes copies of the removal order, charging 
document, biographical information, and any other documents or 
applications which a consulate may require. The travel document 
processing time differs from one consular office to another. Some 
consulates require that they interview the alien; others conduct an 
investigation in the home country, while others make a determination of 
nationality based on the documents submitted by DRO. To expedite the 
issuance of travel documents, establishing a good working relationship 
with consulate staff is vital. If the process of obtaining a travel 
document becomes extremely difficult, or reaches an impasse, the field 
refers the case to the Headquarters Office of Detention and Removal, 
Travel Document Unit.

     Is this process handled locally by each facility and on a 
case-by-case basis? Or are there any Standard Operating Procedures 
(SOPs) for dealing with foreign governments?
    Response: Each field office handles the process locally with the 
consulate having jurisdiction over that office. There are Standard 
Operating Procedures for dealing with foreign governments and listing 
country specific requirements for obtaining travel documents.

     What are some of the main reasons or problems that can be 
attributed to the length of time it takes many countries to approve the 
return of their nationals?
    Response: Each country has its own process for issuing travel 
documents. Some consular officials have the authority to determine 
nationality and issue travel documents. Some must have authorization to 
issue granted by their foreign ministry, which can involve lengthy 
investigations of citizenship and identity. Some countries, such as the 
former Soviet Union, have new citizenship laws that may result in the 
determination that some detainees are ``stateless'' and not able to be 
accepted. Other countries require personal interviews with their 
nationals. In the case of Central America, where the volume of 
detainees is high, the consular officials conduct a ``circuit run'' to 
the various detention facilities in their jurisdiction. This ``circuit 
run'' can result in a two-week delay in scheduling interviews because 
of the lack of consular officials to interview at each detention 
facility. There are also other countries with which the U.S. does not 
have diplomatic relations or which simply do not want to accept their 
nationals who are being removed.

    18. A report released last week by the Congressional Research 
Service (CRS) says that from October 2004 to May 2005, the Border 
Patrol released 65,709 OTMs with Notices to Appear (NTAs) because there 
was not enough detention space available to detain them. There cannot 
be any doubt that more bed space is critical if the Expedited Removal 
program is going to work.

     How much does an average day of detention cost?
    Response: An average day of detention costs approximately $95 per 
bed day. The $95 per day figure includes the cost of lodging, detainee 
welfare, health and medical care as well as transportation to 
proceedings and hearings. DRO obtains detention beds at DRO-owned 
Service Processing Centers (SPCs), Contract Detention Facilities (CDFs) 
and local or county jail space through Inter Governmental Service 
Agreements (IGSAs).

     How many beds does DRO fill on an average day?
    Response: On average, DRO detained 21,928 aliens in FY 2004 and 
19,718 aliens in FY 2005. This includes Bureau of Prisons and Office of 
Refugee Resettlement funded bed space. Bed usage over the past several 
months has sharply increased. The average detained population for the 
last week of FY 2005 was 20,791.

     What is the maximum capacity that DRO has available 
nationwide?
    Response: Our maximum capacity is our funded capacity, which at the 
end of FY2005 was 18,500, not including the Bureau of Prisons or the 
Office of Refugee Resettlement.

     Does DRO contract with state and county jails to house 
excess aliens?
    Response: Yes, approximately 52% of ICE detention capacity is 
acquired via intergovernmental service agreements (IGSA) with state and 
local governments.

     What is the average cost of using local or county jail 
space?
    Response: DRO utilizes local or county jail space through the use 
of Inter Governmental Service Agreements (IGSAs). The average cost of 
utilizing IGSAs for FY05 was approximately $60 per bed day. Local or 
county jail space typically is not subject to the Department of Labor 
wage rates, which distinguishes it from guard service for SPCs and 
CDFs. Additionally, the IGSA average per day rate does not include any 
DRO personnel costs and usually does not include health care, religious 
services, or the cost of local transportation of detainees. The 
specific negotiated IGSA for each local facility utilized dictates how 
these costs are paid.

     Has DRO investigated different temporary detention 
options? If so, are any in use?
    Response: ICE currently utilizes various types of facilities and 
acquisition models. For example, temporary detention facilities are 
maintained at various DHS offices, where aliens may be held for several 
hours during processing until they can be transferred to a facility for 
longer-term detention. However, ICE does not compromise on the safety 
and security of the detained population and strives to ensure that 
appropriate conditions of confinement are maintained.

    19. How does DRO communicate with Department of State when 
countries do not cooperate or appear to delay accepting their nationals 
back? Is there a formal process?
    Response: There is no ``formal'' process established. If the HQDRO 
TDU cannot make progress with an embassy on its own, they then contact 
the Department of State desk officer for that country. HQDRO also has a 
liaison officer assigned to the Department of State who assists in 
making contact with the desk officers and setting up meetings with 
foreign embassies. If a formal action is requested against a country, 
DRO communicates with State through official DHS channels.
     Has DRO ever requested that State use the 243(d) sanction 
authority to force greater cooperation from violating countries?
    Response: Yes, DRO has requested that the Department of State use 
243(d) sanction authority. In 2000, DRO was successful in coordinating 
with the Department of State in establishing sanctions against Guyana. 
Visa restrictions were first placed against diplomatic visas for 
government employees and their families other than those required by 
treaty or international agreement. Within a few weeks, Guyana became 
compliant and began issuing travel documents.
    In the past year, a Visa Sanctions Working Group was formed to 
explore options for dealing with countries who refused to accept their 
nationals or who delayed issuance of travel documents.

    20. How many countries have agreed to use the video conferencing 
system with DRO to facilitate the interview process? How much time will 
this save in the removal process? Do you have plans to try to expand 
the use of Video Tele-Conferencing (VTC) to African, Asian, and Middle 
Eastern countries? If not, why not?
    Response: Three countries have been approached to use video 
teleconferencing (VTC) to facilitate the interview process: El 
Salvador, Guatemala and Honduras. Honduras officially agreed to use VTC 
in April 2005. The system has been installed in the Honduran Consulates 
in Houston, TX and Los Angeles, CA and will soon be completed in 
Phoenix, AZ. Orders have been placed for systems to be installed in the 
remaining seven consulates in the United States. Discussions with El 
Salvador and Guatemala regarding use of VTC are on going. DRO estimates 
that the use of VTC will save 7 to 10 days of detention for each 
removal case. There are no current plans to expand the use of VTC to 
African, Asian or Middle Eastern countries. In comparison to the three 
Central American countries, the numbers of detained cases for African, 
Asian and Middle Eastern countries is quite small. Additionally, many 
of these countries do not require a personal interview to determine 
nationality.

        Questions For Daniel W. Fisk From Hon. Daniel E. Lungren

    The Subcommittee understands that it was quite a challenge for the 
State Department to figure out who to send as a witness for this 
hearing due to the fact that there is no central ``person'' or 
``office'' who handles this issue. However, we are very concerned about 
that fact since initiative has the potential to have many more foreign 
nationals who need country clearances and travel documents.


     Can you describe for us, in your view, why the State 
Department does not have a central ``person'' or ``office'' to 
coordinate efforts with foreign governments? What are the challenges of 
centralizing such an effort?
    Response: The Department of State's role in immigration enforcement 
is primarily to engage with foreign governments to facilitate their 
cooperation in repatriating their citizens expeditiously. This activity 
has traditionally been accomplished through the relevant bureaus and 
the respective country desks, as these personnel who deal day-to-day 
with countries are in the best position to gauge the bilateral 
relationship and communicate with host country embassies in Washington.
    Centralizing such a is complicated by the fact that nations 
cooperate differently on the removal issue, and are open to different 
types of suasion. In addition, the issue of migration relates to other 
issues and is part of a larger bilateral relationship, and channeling 
communication and policy through the relevant desks and bureaus ensures 
that the U.S. Government speaks with one voice.

    In March 2005, U.S. Immigration and Customs Enforcement (ICE) 
launched Operation Community Shield to round up violent street gangs--
mainly targeting MS-13 gang members from El Salvador--and removing them 
from the United States. When the Committee staff was briefed by DHS 
they were told that El Salvador does not want to repatriate its 
citizens because they believe they have been ``criminalized'' in the 
U.S. However, when the Committee staff was briefed by the State 
Department they were led to believe that El Salvador has been 
cooperative in removal efforts.

     Can you please for the committee whether you currently 
have problems removing these violent street gangs their home country 
and, if so, describe the steps that the State Department is taking to 
eliminate any impediments to removal?
     As the State Department's expert in Latin American 
Affairs, can you please describe the challenges to removal with other 
countries under your purview?
    Response: The Department of State shares the Committee's concerns 
about the gang problem in the United States and is working with the 
Department of Homeland Security and the Department of Justice to 
increase the return rate of Salvadoran gang members to El Salvador and 
work with the Salvadoran government in addressing the gang issue. The 
Salvadoran government has to been cooperative in repatriating gang 
members, but the number of repatriations is not keeping up with the 
detention rate. In coordination with DHS and DOJ, the Department of 
State is with the Salvadoran government to identify what is needed to 
take back an increased flow of gang members, including more consular 
resources for interviews, enhanced communication of criminal records, 
and improved secure receive returned gang members.
    Our Embassy in San Salvador has formed a group with senior 
Salvadoran government officials to determine specific mechanisms to 
increase the homeward flow of all Salvadoran aliens. The group has met 
several times, and has generated a working visit to the U.S. by 
Salvadoran officials to meet with State and DHS officials on the issue.
    The challenges to quick removal to other countries in Central 
America are similar: limited consular resources for interviews and 
travel document issuance to detainees in the United States, and limited 
home-country and resources to expeditiously repatriate their citizens.

    Under section of the Immigration and Nationality Act (INA), the 
Secretary of State has the discretion to withhold issuance of visas to 
nationals of foreign countries who deny or delay accepting their 
citizens back. However, apparently this authority has never been used, 
although it has been threatened on rare occasions.

     Can you please explain to the Subcommittee why this 
authority has not been used? What are the considerations that might 
factor into a decision to use this authority?
    Response: Section 243(d) of the INA provides that ``on being 
notified by Chairman Daniel Lungren Security Attorney General that the 
government of a foreign country denies or unreasonably delays accepting 
an alien who is a citizen, subject, national, or resident of that 
country after the Attorney General asks whether the government will 
accept the alien . . ., the Secretary of State shall order consular 
officers in that foreign country to discontinue granting immigrant 
visas, or both, to nationals of that country until the Attorney General 
notifies the Secretary that the country has accepted the alien.'' 
Accordingly, section contemplates notification by the or Attorney 
General (now the Secretary of Homeland Security) before visa issuance 
is ceased.
    In October 2001, Section 243(d) visa sanctions were imposed against 
Guyana. Guyana had been refusing to accept the return of any of their 
deportable criminal aliens for a lengthy period, in some cases two 
years. The sanctions were lifted in December 2001 when Guyana had 
issued the requested travel documents.
    In the case of the Central American nations, they are taking back 
their nationals and are working with DHS and the State Department to 
meet the increased demands on the flow of detainees. Given that DHS' 
increased detention and return initiative is quite recent and that 
Central American nations are cooperating--and to cooperate even more--
invocation of 243(d) authority would be premature.

    The top five OTM (Other Than Mexican) countries for the past four 
years are all Central and South America: Honduras, Brazil, El Salvador, 
Guatemala and Nicaragua.

     Besides this new policy initiative, what other specific steps is 
the State Department taking to immediately alleviate the problems? In 
your view, what are the most pressing challenges to removal of 
undocumented aliens to Latin America? Please provide specific examples
     Are we having problems with any of these countries accepting back 
their nationals or taking a long time to provide the clearance?
     Has the 243(d) sanction been used against any of these countries?
     What is State's policy direction to the country desks and 
embassies for these countries as far as negotiating faster and more 
compliant rocessing?
     Is State working with the countries to encourage their 
participation in the videoconferencing system?
    Response: The Department of State is in almost daily communication 
with the Department of Homeland Security to coordinate our approaches 
to Central American officials both here in Washington and in the 
region. Our Embassies maintain a consistent dialogue with host-country 
officials on the issue of migration, and our Embassy in El Salvador has 
formed a working group with senior Salvadoran government officials to 
determine the most effective and concrete ways to increase the rate of 
returnees to that country. Here in the U.S., the Government of Honduras 
has recently inaugurated DHS-funded video-teleconferencing equipment at 
two of its consulates to expedite consular interviews, and is seeking 
to refurbish a second airport to accept repatriation flights. The issue 
of accepting an increased flow of returnees has also been discussed 
with the Guatemalan Foreign Minister in late October during a meeting 
with senior Department of State officials.
    The most pressing challenges to removal of aliens is timeliness. 
Central American governments have not yet deployed sufficient consular 
resources to quickly interview and issue travel documents to all their 
detained aliens. A second challenge for the Central American 
governments is to develop sufficient infrastructure to process a larger 
flow of returnees--including criminal deportees--back into their 
countries.
    All the Central American countries identified as of priority 
interest by DHS--Guatemala, Honduras, and El Salvador--are currently 
unable to fully meet the DHS timelines for interviews, document 
processing, and alien return. As El Salvador, Guatemala, and Honduras 
are currently accepting the return of hundreds of their nationals, 
including criminal aliens, sanctions have not formally invoked against 
any of the Central American countries.
    The Department of State is working closely with DHS and host 
governments to identify specific and concrete improvements to 
accelerate the timely return of detained aliens. State Department 
policy remains that accepting the return of nationals to their 
respective countries of assignment is an international obligation, a 
priority for the U.S. Government, and a measure of the strength of our 
bilateral relationship.
    As a result of our collaboration with DHS, Honduras is actively 
participating in the videoconferencing system, and Guatemala and 
Nicaragua are for ways to fit videoconference technology under 
regulations calling for face-to-face consular interviews.

    Can you please describe for the Subcommittee the bilateral policy 
implications of removing foreign nationals to their home countries?
    Response: Central American governments regard the status of their 
migrants in the United States as a priority foreign policy issue. 
Changes in U.S. immigration policy are viewed politically as a measure 
of the bilateral relationship. Governments will perceive increased 
removals of their citizens as a deterioration in their overall 
relations with the U.S. and this could affect the outlook for bilateral 
cooperation.

    According to State Department officials who briefed our committee 
staff, you indicated that the repatriation of foreign nationals is a 
matter of sovereignty for foreign governments. Can you please provide 
some examples of what other nations require to prove citizenship of its 
nationals and what challenges exist in obtaining such proof 
(documents)?
    Response: Foreign governments have the obligation to accept 
repatriation of their own nationals once the nationality of the alien 
has been determined. Sorting out who is where is the first challenge in 
the repatriation equation. When aliens do have an identity document 
proving citizenship, such as a birth certificate, a passport, or 
national identity card (cedula), this is relatively simple. In many 
cases, however, aliens arrive at the border with no documentation 
whatsoever. The consular interview is therefore the mechanism by which 
governments verify the nationality of those claiming to be citizens but 
lacking any documentation to back up their claim. Once the consular 
official is satisfied that the alien in question is a citizen, he or 
she can proceed to issue a travel document acceptable for the return of 
that alien.

    Your staff indicated that a ``Demarche'' is a mechanism to request 
that specific steps be taken by the Ambassador to elicit cooperation 
foreign nation. Can you please explain what is involved in process, how 
often it has been used and the results of using this mechanism?
    Response: A demarche is a formal instruction the Department of 
State to the Embassy in question to deliver an official message to the 
host government. On September 23, the Department instructed our 
Ambassadors in Guatemala, Honduras, and El Salvador to deliver this 
formal message--the demarche--to the respective Presidents or Foreign 
Ministers that the United States requests their cooperation in 
repatriating their nationals more speedily. The result of this 
communication--in tandem with the Department's contacts with 
Ambassadors resident in Washington--has been increased willingness of 
the respective governments to explore how to process their nationals 
more expeditiously.

    Challenges to removal have been described as falling into one of 
three different categories--political, logistical, and legal. Can you 
please describe for the subcommittee the challenges to removal involved 
in each of these categories?
    Response: Central American governments pay special attention to 
their migrant communities in the United States, and derive important 
fiscal and political benefits looking after migrant interests. While 
Central American governments are working with us to expedite the 
removal of aliens, it as at a great political cost for these 
governments. U.S. immigration policy is seen as a bellwether for the 
bilateral relationships, and the United States removing significant 
numbers of migrants would be viewed as a deterioration of U.S. 
relations with these governments.
    Logistically, the challenge is for home countries to increase their 
consular resources to keep pace with the increased detention of their 
nationals in the United States. Honduras has already begun to mobilize 
consular personnel, but the diplomatic services of all three countries 
will need more personnel and more resources to collocate with DHS 
detention facilities. In addition, Central American nations are looking 
for ways to remodel and refurbish airport infrastructure to accommodate 
increased numbers of repatriation flights as well as to deal with 
returned criminals.
    The legal impediments for the return of aliens vary, depending on 
the laws of each country on how to identify their migrants. For some 
countries, the return of minors requires additional steps. One obstacle 
facing DHS is the decision, which requires DHS to not remove detained 
Salvadoran migrants for 7 days, to allow them to seek counsel. This 
court decision results in longer stays for Salvadoran migrants than 
otherwise be the case. In addition, asylum claims or other procedural 
issues may restrict DHS removal proceedings.

    Do you think that DHS should be prioritizing operationally the 
expedited removal cases versus the regular removal cases? What effect 
would this have on the process?
    Response: From the perspective of the burden on consular resources, 
expedited removal and regular removal both require increased consular 
resources on the part of governments. The Department of State is 
working with the Central Americans to get those resources and speed up 
the return of detained nationals back to their home countries.

    The Subcommittee has been told that foreign nationals detained for 
a minimum of 10 days before we can remove them United States. Is there 
any statute, regulation, or policy that requires a minimum of 10 day 
removal period? If not, is this something the State Department does as 
a courtesy to other nations?
    Response: The Department of State has no jurisdiction regarding the 
length of time foreign nationals are detained. DHS notes that 
scheduling, country clearance, and other notification issues require 
roughly 10 business days before ICE can effect removal. There is no 
statute, regulation or policy that requires this 10 day period, though 
the decision does require DHS not remove detained Salvadoran aliens for 
seven days.

                                 
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