[Senate Hearing 109-64]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 109-64

   STRENGTHENING INTERIOR ENFORCEMENT: DEPORTATION AND RELATED ISSUES

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

                             JOINT HEARING

                               before the

      SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

                                  and

      SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 14, 2005

                               __________

                          Serial No. J-109-13

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

      Subcommittee on Immigration, Border Security and Citizenship

                      JOHN CORNYN, Texas, Chairman
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    James Ho, Majority Chief Counsel
                   Jim Flug, Democratic Chief Counsel
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                       JON KYL, Arizona, Chairman
ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    RICHARD J. DURBIN, Illinois
                Stephen Higgins, Majority Chief Counsel
                 Steven Cash, Democratic Chief Counsel
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......     6
Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
    prepared statement...........................................   103
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     6
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     5
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   133

                               WITNESSES

Cerda, Victor X., Acting Director of Detention and Removal 
  Operations, Immigration and Customs Enforcement, Department of 
  Homeland Security, Washington, D.C.............................     9
Cohn, Jonathan, Deputy Assistant Attorney General, Civil 
  Division, Department of Justice, Washington, D.C...............     7
Gelernt, Lee, Senior Staff Counsel, Immigrants' Rights Project, 
  American Civil Liberties Union, Washington, D.C................    29
Venturella, David, U.S. Investigations Services, Washington, D.C.    27

                         QUESTIONS AND ANSWERS

Questions for Victor Cerda submitted by Senators Cornyn, Kennedy, 
  and Kyl........................................................    43
Responses of Jonathan Cohn to questions submitted by Senators 
  Kennedy and Kyl................................................    48

                       SUBMISSIONS FOR THE RECORD

Callahan, Randy A., Executive Vice President, National Homeland 
  Security Council, AFGE, Washington, D.C., prepared statement...    56
Cerda, Victor X., Acting Director of Detention and Removal 
  Operations, Immigration and Customs Enforcement, Department of 
  Homeland Security, Washington, D.C., prepared statement........    60
Cohn, Jonathan, Deputy Assistant Attorney General, Civil 
  Division, Department of Justice, Washington, D.C., prepared 
  statement......................................................    72
Culliton, Katherine, Legislative Staff Attorney, Mexican American 
  Legal Defense and Educational Fund, Washington, D.C., prepared 
  statement......................................................   106
Gelernt, Lee, Senior Staff Counsel, and Lucas Guttentag, 
  Director, Immigrants' Rights Project, American Civil Liberties 
  Union, Washington, D.C., prepared statement....................   117
Morawetz, Nancy, Professor, New York University School of Law, 
  Immigrant Rights Clinic, prepared statement....................   135
Venturella, David, U.S. Investigations Services, Washington, 
  D.C., prepared statement.......................................   142

 
   STRENGTHENING INTERIOR ENFORCEMENT: DEPORTATION AND RELATED ISSUES

                              ----------                              


                        THURSDAY, APRIL 14, 2005

                              United States Senate,
          Subcommittee on Immigration, Border Security and 
 Citizenship and the Subcommittee on Terrorism, Technology 
         and Homeland Security, Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittees met, pursuant to notice, at 2:34 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
Chairman of the Subcommittee on Immigration, Border Security 
and Citizenship, presiding.
    Present: Senators Cornyn, Kyl, Hatch, Sessions, Coburn, and 
Kennedy.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Chairman Cornyn. Good afternoon. This joint hearing of the 
Senate Subcommittee on Immigration, Border Security and 
Citizenship and the Subcommittee on Terrorism, Technology and 
Homeland Security will come to order.
    First, I want to thank Chairman Specter for scheduling 
today's hearing and to say that once again, I am pleased that 
this hearing today is a joint hearing of two committees that 
have a vital interest in the subject we are going to discuss.
    As we noted last week, Senator Kyl and I plan to work 
together through these hearings and, of course, in negotiations 
to address problems facing our immigration system.
    I also want to express my gratitude to our ranking members 
of both Subcommittees, Senator Kennedy, the Ranking Member of 
the Immigration Subcommittee, and Senator Feinstein, the 
Ranking Member of the Terrorism Subcommittee, as well as their 
staffs, for working so diligently to make this hearing 
possible.
    While traditional immigration issues do not always involve 
terrorism issues, we need to remember that terrorists desiring 
to enter the country explore illegal entry, alien smuggling, 
and other ways to exploit our immigration laws to facilitate 
entry into the United States. That is why having these two 
subcommittees jointly participate in these enforcement hearings 
brings important perspectives and depth to our review of these 
issues.
    No serious discussion of comprehensive immigration reform 
is possible without a review of our Nation's ability, or maybe 
we should say inability at present, to secure its borders and 
enforce its immigration laws. These discussions must 
necessarily include providing sufficient tools and resources to 
keep out of our country those who should be kept out, to 
identify those in our country who should be apprehended, and to 
remove from this country those the Government orders deported.
    These issues continue to dominate public discussions across 
the country and are among the most significant topics facing 
our Nation today. We are even finding that they are creeping 
into the war supplemental debate that we are having on the 
floor right now, unfortunately, from my standpoint.
    Just last month, President Bush met with leaders of Canada 
and Mexico in my home State to discuss, among other things, 
border security, and I hope today's hearing will build on that 
discussion.
    This is the second in a series of hearings planned on 
strengthening enforcement. In our first hearing, we examined 
the challenges faced by our inspectors at ports of entry, 
including the need for adequate training, the need to provide 
them with sufficient relevant information, and the need for 
document integrity.
    Beyond today's hearing, I hope to continue this series 
later this month by examining the tools and resources needed to 
protect our borders along the perimeter of the country in 
between authorized ports of entry and other issues important 
and relevant to this discussion. But, today we will focus on 
the challenges to adequate enforcement of our immigration laws 
in the interior of our country, away from the borders.
    Generally, when people talk about immigration enforcement, 
they naturally refer to Border Patrol agents, and Border Patrol 
agents are critical to the enforcement process. However, 
illegal immigration issues are not limited to the border or to 
border States. Equally important are those immigration 
investigators, detention officers, and other professionals 
responsible for locating, detaining, and removing those who are 
in this country in violation of our laws.
    Recent events have highlighted the importance of these 
interior enforcement issues, including intelligence 
professionals expressing concerns that terrorists intend to 
surreptitiously enter our country. These concerns are striking 
given two significant events recently reported by the Homeland 
Security Department. First, DHS discovered an elaborate tunnel 
under the California-Mexico border, complete with a cement 
floor and intercom connecting a house in Mexico to a home in 
California. Additionally, ICE agents recently rounded up more 
than 100 gang members from the violent Central American gang 
MS-13, all of whom were in this country illegally.
    Both of these examples--and they are only two examples--
illustrate the emerging national security threat that worries 
intelligence officials as established smuggling routes and 
violent gangs can easily facilitate terrorists entry into this 
country for the right price.
    Today's hearing addresses this critical portion of our 
immigration system because no country can effectively carry out 
its sovereign duty to enforce its laws unless it can 
effectively apprehend those who should be arrested and 
efficiently removed from the country. We must scrutinize these 
issues.
    Unfortunately, there are several recent decisions from the 
United States Supreme Court that may require Congress to act 
again in this area. These decisions that we will talk about 
some during this hearing require the Government to release 
aliens who have been ordered removed from our streets. I intend 
to ask our witnesses today about the types of aliens ordered 
removed who have been released into our streets.
    Also, I fear that today's hearing will amply demonstrate 
that we face serious problems with our deportation system that 
impede the enforcement of our final orders of deportation, 
particularly as it relates to those who have committed crimes 
in our country while guests. Simply put, our Nation's process 
for deporting individuals who are not lawfully present is over-
litigated and under-resourced over-lawyered and under-equipped. 
We must find a better way of removal because if we are not 
serious about deporting those who have exhausted all of the 
remedies and who are under final orders of deportation, we can 
never claim to be serious about reform.
    Additionally, we will examine various related issues 
associated with detention of those here illegally. 
Specifically, today's witnesses will address detention bed 
space limitations, alternatives to detention, the difficulty of 
locating those who abscond, and other alternatives such as 
using MOUs, memorandums of understanding, with State and local 
law enforcement, like those already being used in Alabama and 
Florida.
    We will discuss the investigative priorities of interior 
immigration agents. I hope to hear how they intend to meet 
their priorities and how they intend to balance them with the 
approximately 6,000 ICE agents available to address the 
approximately 10 to 12 million people here illegally. This 
obvious disparity in numbers is something that we must address.
    Our interior enforcement personnel are highly dedicated and 
professional. They face monumental tasks and carry out their 
assignments diligently. I hope to hear today how Homeland 
Security plans to enhance their enforcement efforts and what 
impediments the Justice Department has identified to 
effectively removing those ordered removed.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    With that, I would like to turn the floor over to my 
colleague, the Chairman of the Terrorism Subcommittee, Senator 
Kyl, for any comments he might wish to make.

  OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 
                        STATE OF ARIZONA

    Chairman Kyl. Thank you, Senator Cornyn.
    The purpose of this hearing has been well outlined by 
Senator Cornyn. We are two Subcommittees today conducting this 
hearing, not just one, and so we focus both on the terrorism 
and homeland security implications as well as the immigration 
implications of the policies that you are going to be 
discussing today. So we welcome you to this hearing and look 
forward to your testimony.
    As was noted, we are going to examine the challenges facing 
the Department of Homeland Security as it goes about the 
business of apprehending and detaining and removing illegal 
immigrants from the interior of our country. We will also 
examine the challenges facing the Department of Justice as it 
litigates immigration cases in the Federal courts.
    Let me take this opportunity first to thank you, Mr. Cohn. 
You know that we appreciate--many Members of Congress I can 
certainly speak for appreciate the work that the Department of 
Justice does to defend and maintain the integrity of the 
immigration laws in our courts. The Office of Immigration 
Litigation and the U.S. Attorney's Offices throughout the 
country have kept the quality of representation high even as 
the number of immigration cases has soared.
    We are also conscious of the fact that you are doing this 
job nevertheless faced with constraints on resources, as 
Senator Cornyn noted, and we would like to learn from you 
today, among other things, what Congress might be able to do to 
assist you in this area, in addition to taking action on the 
legislative changes that were discussed in your written 
statement.
    And, Mr. Cerda, I also want to congratulate you and the 
Department of Homeland Security on the work that Detention and 
Removal Operations is doing to capture and hold and remove the 
illegal aliens from our country. I am impressed with the long-
range strategic vision that Immigration and Customs Enforcement 
has formulated for dealing with the absconders and criminal 
fugitives who are at large in the United States. And I am 
especially pleased with the efforts to track and locate the 
sexual predators who would prey on our children. I understand 
you have located some 5,000 of them. We need to find every one 
of them and deport them back where they came from.
    We are aware of the budget and resource problems that ICE 
is having, and, again, we would like to have you be as frank as 
possible in this hearing in advising of what you need to fully 
enforce our immigration laws from the point of apprehension to 
the point of removal.
    Also, I would like to welcome the second panel, welcome 
David Venturella from the U.S. Investigative Services and Lee 
Gelernt from the American Civil Liberties Union. We are also 
looking forward to your testimony today.
    And, again, Chairman Cornyn, thank you for co-chairing this 
hearing.
    Chairman Cornyn. Well, thank you, Senator Kyl.
    As you can see, we have got a number of our colleagues here 
with us indicating the nature of the level of interest.
    Chairman Kyl. And as we speak, here comes Senator Kennedy. 
I was going to mention Senator Feinstein will be delayed.
    Chairman Cornyn. I understand Senator Feinstein may be 
delayed. She is the co-Chair of the Subcommittee along with 
Senator Kyl. But, to the ranking member of the Immigration, 
Border Security and Citizenship Subcommittee, your timing could 
not have been better, Senator Kennedy, and the floor is yours, 
sir.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Well, thank you very much, Mr. Chairman, 
and I thank our witnesses. I apologize. There is a lot going on 
today here in the Senate, as always.
    So I thank you, Mr. Chairman, for calling this important 
hearing on immigration enforcement. The current enforcement has 
reached an all-time high in terms of deportation. In fiscal 
year 2004, we deported nearly 160,000 people. The plenary power 
doctrine gives Congress the authority to deport non-citizens, 
including long-time lawful permanent residents. But Congress 
has a responsibility as well, and so do the courts, to see that 
non-citizens receive due process and that the executive branch 
is fairly and justly implementing the law. Yet some current 
proposals would curtail the judicial review for immigrants, and 
any limitations to rights guaranteed under the Constitution 
deserve careful and deliberate consideration. Habeas corpus is 
a bedrock principle of U.S. law, reaching back to the Magna 
Carta, six centuries before our Constitution. It declared that 
no free man shall be taken, imprisoned, or in any other way 
destroyed except by the lawful judgment of his peers or by the 
law of the land; to no one will we sell, to no one will we deny 
or delay right or justice.
    Habeas corpus is a fundamental principle of American 
justice. It is called the Great Writ for a reason: because it 
means justice for people wrongly detained. We owe it to future 
generations not to undermine the values embedded in our 
Nation's great legal tradition.
    These basic principles and values are under siege by some 
today and have led to a rise in anti-immigrant activism. Last 
month, a group of college students in Texas held a ``Catch an 
Illegal Immigrant Day.'' In our previous Subcommittee hearing, 
we were told that vigilantes, as President Bush called them, 
had convened to watch the Southern border and catch immigrants 
all month. One rancher said he would shoot every single one of 
them if he had his way. Obviously, vigilante justice violates 
everything America stands for, and we cannot be content with 
rhetoric alone against it.
    I am looking forward to hearing testimony today on the 
detention of asylum seekers, men and women who have stood 
alone, often a great personal cost, against hostile governments 
for fundamental principles such as freedom of speech and 
religious liberty. Yet these courageous persons are often 
imprisoned in U.S. jails when they reach our shores. A recent 
report by the bipartisan Commission on International Religious 
Freedom criticized the incarceration used to detain asylum 
seekers because they are often held alongside criminals in 
stark conditions, under constant surveillance, 24-hour lights, 
moved from place to place using shackles. The Commission 
recommended specific detention standards to improve the plight 
of asylum seekers and proposed an Office of Refugee 
Coordinator.
    I look forward to today's hearing on all these issues and 
working with my colleagues to deal with the abuses.
    I thank the Chair.
    Chairman Cornyn. Thank you very much, Senator Kennedy.
    The former Chairman of the full Senate Judiciary Committee, 
Senator Hatch, is going to have to leave here very quickly and 
has asked to say just a few words by way of an opening 
statement, and I cannot ever--well, rarely could I--say no to 
him. But, I am going to use the better part of discretion and 
say please go ahead.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman that means a 
lot to me, and I appreciate your courtesy to me.
    Let me first say that I am pleased that important 
immigration issues are being discussed in both the House and 
the Senate, and I suppose we do need to look at comprehensive 
immigration review and reform. It is absolutely imperative for 
us to reinforce our borders and, I think, fix a broken 
immigration system. So I look forward to this ongoing process.
    But let me just say this: Last session, I sponsored FILA, 
the Fairness in Immigration Litigation Act, because it makes no 
sense for criminal aliens to get added rights. Now, I plan to 
reintroduce this bill soon. FILA would reform the judicial 
review process and streamline criminal alien appeals. The bill 
levels the playing field between foreign-born nationals who 
have been convicted of crimes and those who have not. FILA 
would also curtail the rising number of immigration-related 
habeas corpus claims filed in the Federal courts since 1996.
    Now, I understand that some groups opposed my Fairness in 
Litigation Act last year that the bill eliminated judicial 
review, and they have continued that claim as attempts are 
being made to streamline immigration appeals this year.
    My bill does allow constitutional claims and legal 
questions to be reviewed in the courts of appeals, and I know 
the House included a similar provision in their bill last year, 
which was H.R. 418, under their Section 105.
    I just wanted to make that point because I think it is 
important that we get on top of some of these issues while 
trying to be fair and trying to do what is right. And I intend 
to continue to work to try and get on top of these issues, and 
I really appreciate the efforts of you, Mr. Chairman, Chairman 
Kyl, Senator Kennedy, and others in trying to resolve the many 
difficult problems that we have in immigration. And I just want 
to personally thank you for giving me this little bit of time.
    Chairman Cornyn. As Senator Kyl noted, we are pleased to 
have a distinguished panel with us today, and I will introduce 
the first panel and ask them to--

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Mr. Chairman? Mr. Chairman, might I be 
recognized for a minute? I just want to make a point of 
clarification. And I will not enforce this rule, but we 
received two testimonies last night by staff memo which I would 
like to put in the record, one at 6:11 p.m. and one at 6:38 
p.m., to be prepared for this testimony.
    The Committee rules say that the testimony has to be 
available 24 hours prior to the Committee hearing, and although 
I will not enforce that, I will say to the witnesses that you 
are not a bit busier than we are. And you have known about this 
hearing for a period of time, and for us not to have your 
testimony on a timely basis limits our ability to, number one, 
correctly understand your positions, but also to ask pertinent 
and appropriate questions. And so I would just put on notice 
that I will ask for an enforcement of the rule on any further 
hearings. I have told that to Senator Specter as well on the 
general Committee, because I want to be able to be prepared. 
And I think it is inappropriate that, if we are going to have 
the rules, we are not going to enforce them because the very 
purpose of the rule is to allow us to do our jobs more 
effectively and more efficiently.
    And, with that, I would yield back.
    Chairman Cornyn. Thank you, Senator Coburn. Your desire to 
be well prepared for these hearings is commendable, in my view.
    Jonathan Cohn is Deputy Assistant Attorney General. He 
graduated from the University of Pennsylvania in 1994 and then 
Harvard Law School in 1997. He clerked for Judge O'Scannlain on 
the Ninth Circuit and for Justice Clarence Thomas on the United 
States Supreme Court. He has worked for the law firms of 
Wachtell, Lipton, Rosen & Katz and Sidley Austin Brown & Wood. 
He is now the Deputy Assistant Attorney General for the Civil 
Division with the Department of Justice and is in charge of 
their Office of Immigration Litigation.
    Joining Mr. Cohn on our first panel is Victor Cerda. He is 
the Director of Detention and Removal for the Department of 
Homeland Security. He was a former chief of staff for the 
Immigration and Naturalization Service Commissioner James 
Ziegler and brings a vast amount of immigration experience to 
the table.
    The Committees welcome both of you, and we would be pleased 
to hear your statements. I would like for you to confine those 
to 5 minutes, and that will give us plenty of chance then to 
follow up with appropriate questions. And, of course, your 
written statements will be made part of the record, without 
objection, so you do not need to worry that we do not have that 
before us.
    With that, Mr. Cohn, we would be glad to hear your opening 
statement.

STATEMENT OF JONATHAN COHN, DEPUTY ASSISTANT ATTORNEY GENERAL, 
    CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Cohn. Thank you, Chairman Cornyn, Chairman Kyl, and 
members of the Subcommittees, for inviting me to testify today.
    At the Department of Justice, we are confronted with an 
overwhelming flood tide of immigration cases, and we are faced 
with the significant flaws that current exist in our Nation's 
immigration laws. Today I would like to talk about two of these 
flaws, both of which an be fixed legislatively.
    The first of these flaws concerns the judicial review of 
criminal aliens' removal orders, namely, the St. Cyr problem. 
Since 1961, Congress has consistently provided that only the 
courts of appeals and not the district courts may review 
deportation and removal orders. This is important because it 
limits the amount of time an alien can delay his removal 
through seeking judicial review. He gets one layer of review 
and not two.
    Moreover, district court review is unnecessary because the 
alien has already typically received multiple levels of 
administrative review before the case even reaches Federal 
court.
    In 1996, Congress attempted to streamline judicial review 
for criminal aliens even further. Indeed, Congress tried to 
eliminate judicial review of their removal orders entirely. 
Nonetheless, despite Congress' efforts to limit judicial 
review, the Supreme Court expanded it just 5 years later.
    In INS v. St. Cyr, the Supreme Court held that criminal 
aliens, whom Congress decided should have no judicial review, 
are actually entitled to more review than they had before and 
more review than non-crimina aliens received. Specifically, the 
Court held that as a statutory matter, criminal aliens could 
seek habeas review of their removal orders. With habeas review, 
the criminal alien gets review in district court and on appeal 
in the courts of appeals--two levels, not one.
    The result of St. Cyr is that Congress's 1996 reforms are 
turned on their head. The beneficiaries of this include child 
molesters, like Oswaldo Calderon-Terrazas, who was convicted of 
two counts of sexual abuse for drugging and then raping a 15-
year-old girl. Calderon-Terrazas was able to delay his removal 
for 2 years by filing a habeas action in district court and 
then an appeal to the Fifth Circuit. To prevent this from 
happening in the future, Congress should pass Section 105 of 
H.R. 418, the REAL ID bill, which would clarify that judicial 
review of removal orders is available solely in the courts of 
appeals and now in the district courts. Quite significantly, 
unlike the 1996 reforms, this bill does not attempt to 
eliminate judicial review, but simply restores such review to 
its former settled forum, back in 1961 to 1996, the courts of 
appeals.
    Moreover, the bill complies with St. Cyr, in which the 
Court said in no uncertain terms that Congress could, without 
raising any constitutional questions, provide an adequate 
substitute to habeas review through the courts of appeals. 
Accordingly, I encourage Congress to enact this reform.
    The second flaw I would like to discuss is equally 
troubling. Sometimes it is difficult for the executive branch 
to remove terrorists or criminal aliens who present a danger to 
the community. When an alien cannot be removed, there are 
basically two options for the United States: one, release him 
into the American public; or, two, detain him.
    Before 1996, there was a 6-month limit on the detention of 
deportable aliens who are ordered removed. Thus, after 6 
months, the alien had to be released irrespective of the danger 
he posed. Recognizing this problem, in 1996 Congress eliminated 
the 6-month limitation. But 5 years later, however, the Supreme 
Court held, as a matter of statutory construction, that the 6-
month limit still generally remained, and this past term the 
Supreme Court extended this holding to cover aliens who are 
stopped at the border.
    Among the aliens that will benefit are criminals who have 
murdered their wives, molested young children, and brutally 
raped several women. To give an example, Carlos Rojas-Fritze 
sodomized, raped, beat, and robbed a stranger in a public 
restroom and called it ``an act of love.'' I understand that 
DHS and the Public Health Service are currently working on his 
conditional release into the American public on account of 
Zadvydas and Suarez-Martinez, the Supreme Court decisions.
    Another example is Tuan Thai, who has raped, tortured, and 
terrorized women and vowed to repeat his grisly acts. Among 
other crimes, Mr. Thai repeatedly raped his friend's girlfriend 
over the course of several months, beginning while she was 6 
months' pregnant. He then monitored her phone calls and 
threatened to poison her with cocaine and harm her other 
children if she tried to kick him out of the house. He also 
threatened to beat up his own girlfriend slowly until she died. 
And he later threatened to kill his immigration judge and 
prosecutor after his release. Needless to say, Tuan Thai should 
not be released, and I respectfully urge Congress to pass a law 
permitting the continued detention of aliens like Tuan Thai.
    Thank you.
    [The prepared statement of Mr. Cohn appears as a submission 
for the record.]
    Chairman Cornyn. Thanks, Mr. Cohn.
    Mr. Cerda, we would be glad to hear from you.

STATEMENT OF VICTOR X. CERDA, ACTING DIRECTOR OF DETENTION AND 
 REMOVAL OPERATIONS, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 
       DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Mr. Cerda. Good afternoon, Chairman Cornyn, Chairman Kyl, 
and distinguished members of the Committee. My name is Victor 
Cerda, and I am the Acting Director for Detention and Removal 
Operations at the Bureau of Immigration and Customs 
Enforcement. It is my privilege to appear before you today to 
discuss DRO's mission to promote public safety and national 
security.
    The role that DRO plays is recognized in our strategic 
plan, ``Endgame,'' which seeks to reach a point where for every 
order of removal issues, a removal is effectuated. While we 
have a significant road ahead to achieve these results, I am 
pleased to say that our recent accomplishments indicate that we 
are moving in the right direction.
    Unlike the prior INS organizational structure, DRO now is a 
distinct law enforcement division in ICE that reports directly 
to the Assistant Secretary. The DRO field chain of command was 
also improved with the creation of direct reporting lines from 
the field offices to headquarters management. These DHS changes 
recognize the importance of the DRO role in enhancing the 
integrity of our immigration system and supporting the 
Department's national security mission.
    DRO's core mission is the apprehension, detention, and 
removal of deportable aliens, the management of non-detained 
aliens, and the enforcement of removal orders. DRO is also 
implementing an aggressive national fugitive operation program 
that targets fugitive aliens who have ignored judicial orders 
of removal. Another part of the enhanced DRO role in 
immigration enforcement is the Criminal Alien Program and the 
strategic approach of targeting criminal aliens regardless of 
their location or stage of prosecution.
    I would now like to share with you some of ICE's 
accomplishments showing the positive direction in which we are 
moving and describe some initiatives implemented in order to 
achieve better enforcement results.
    Record removal numbers. In fiscal year 2004, ICE removed 
160,000 aliens from the United States, including 84,000 
criminal aliens. Since the creation of DHS, ICE has removed 
approximately 302,000 aliens.
    Record number of fugitive apprehensions. In fiscal year 
2004, ICE had 16 fugitive operations teams deployed across the 
country. These teams apprehended a record 11,000 fugitive 
aliens with final orders of removal, an increase of 62 percent 
from the prior fiscal year. Moreover, 458 of these fugitives 
were individuals with records of sexual offenses against 
children--a high priority for ICE under Operation Predator.
    Alternatives to detention. With the support of Congress, we 
are exploring alternatives to detention--innovative approaches 
that may allow us to released those aliens who do not pose 
national security or public safety risk--while at the same time 
ensuring that they comply with court hearing dates and removal 
orders. We have deployed electronic bracelet capabilities and 
telephonic voice recognition systems to all our field offices, 
and the Intensive Supervision Alien Program piloted in eight 
cities is out there with the goal of reversing the historically 
abysmal rates of compliance with hearing dates and removal 
orders.
    We are also trying to improve the removal process by 
focusing on enhanced performance. For example, one of the 
biggest delays we face in removing aliens is the timely 
issuance of travel documents from foreign governments. We are 
working aggressively with the Department of State and foreign 
embassies to identify ways to facilitate the issuance of travel 
documents. Similarly, we have centralized the process for 
arranging country clearances for escort removals, are working 
closely with the Justice Prisoner Alien Transportation System, 
and continue to work with charter and commercial airline 
companies to facilitate removal scheduling.
    Providing timely information to State and local law 
enforcement. Operating 24 hours a day, the Law Enforcement 
Support Center provides local, State, and Federal law 
enforcement agencies with timely immigration status and 
information on aliens suspected or convicted of criminal 
activity. In fiscal year 2004, the LESC responded to more than 
667,000 requests for information.
    Worksite enforcement. ICE worksite enforcement focuses on 
unauthorized workers employed in sensitive security sites. 
Operation Tarmac specifically targets employers who hire 
unauthorized workers and give them access to sensitive airport 
areas. ICE has conducted investigations at 196 airports, 
audited nearly 6,000 businesses, obtained 775 criminal 
indictments, and arrested over 1,000 unauthorized alien workers 
as part of this operation. We are doing similar worksite 
enforcement operations for nuclear facilities, defense 
facilities, shipyards, and transportation sites.
    These are just a few of ICE's immigration enforcement 
accomplishments. We should be proud of our rich tradition of 
being a Nation of immigrants. I personally am a product of that 
rich tradition. At the same time, the United States has a rich 
tradition of respect for the rule of law and the integrity of 
our legal system. Respect for immigration laws should not be 
the exception.
    I thank you for the opportunity to testify before the 
Committee. I request my statement to be included in the record, 
and I look forward to your questions.
    [The prepared statement of Mr. Cerda appears as a 
submission for the record.]
    Chairman Cornyn. Thank you, Mr. Cerda.
    We will start a 5-minute round of questions and go until we 
exhaust the questions or exhaust the panel, whichever comes 
first.
    Let me ask first, Mr. Cohn, the St. Cyr decision by the 
United States Supreme Court, you said, provides criminal aliens 
more judicial review than aliens who have not committed a 
crime. Is that your position?
    Mr. Cohn. That is absolutely correct, Senator Cornyn.
    Chairman Cornyn. And is that because the Court said that 
unless Congress was more explicit, there would be presumed not 
only to be review at the court of appeals, but there would be 
access to the writ of habeas corpus.
    Mr. Cohn. That is exactly right, Senator.
    Chairman Cornyn. Is that something in your view that, if 
Congress so chose to make sure that criminal aliens did not 
have more review than those who were here and who have not 
committed crimes, that we can do so by explicit statutory 
language?
    Mr. Cohn. That is exactly right. Indeed, the Supreme Court 
invited Congress to do so or expressly allowed it to do so in 
Footnote 38 of the St. Cyr opinion. The Supreme Court expressly 
said that review can be removed from district court into the 
courts of appeals.
    Chairman Cornyn. You talked about two other decisions. One 
is the Zadvydas decision and the other, I believe, is the 
Suarez-Martinez decision, which the Court said that you can 
only detain aliens for 6 months and then you must release them, 
even if their country of origin is unwilling to accept them 
back, simply release them into the general population in the 
United States.
    What sort of aliens are being released from detention 
because of these decisions?
    Mr. Cohn. Senator Cornyn, the aliens that are being 
released include murderers, rapists, and child molesters.
    On the eve of Suarez-Martinez, there were roughly 920 
aliens, dangerous criminal aliens, in detention who have since 
been released or who are in the process of being released. 
These aliens include Mr. Carlos Rojas-Fritze, the person who 
thought rape was an act of love.
    It also includes aliens like Lourdes Gallo-Labrada who 
literally set her boyfriend on fire.
    It also includes Guillermo Perez-Aguillar who repeatedly 
committed sex crimes against children.
    These are among the aliens that have to be released as a 
result of the Supreme Court's decisions in Zadvydas and Suarez-
Martinez.
    Chairman Cornyn. Well, you mentioned cases where people 
have committed crimes, and very serious crimes, but we are not 
just talking about people who committed crimes; we are talking 
about suspected terrorists too. One thing clear in Zadvydas is 
that it is constitutional to hold a small segment of 
particularly dangerous individuals such as suspected 
terrorists. Does the Department of Justice believe that Section 
236(a)'s indefinite detention of terrorists is constitutional 
in light of the discussion in Zadvydas?
    Mr. Cohn. We do, Senator. We believe that 236(a) is 
constitutional because Zadvydas expressly said--first of all, 
Zadvydas was not a constitutional holding. We should be clear 
about that. Zadvydas simply was a statutory holding. It 
addressed the scope of the currently existing statute 
241(a)(6). The Supreme Court avoided the constitutional issues. 
It has no constitutional holding.
    Moreover, on the issue of terrorism and national security, 
as you noted very correctly, the Supreme Court said that 
special circumstances, including terrorism, are ones in which 
indefinite detention could be permissible. We believe that 
236(a) is constitutionally permissible.
    Chairman Cornyn. And just to clarify, when you say the 
Court avoided the constitutional issue and dealt with the 
statutory issue, that is a traditional approach by a Court to 
deal with the statutory problem that Congress could fix, as 
opposed to a constitutional defect that Congress cannot fix. Is 
that right?
    Mr. Cohn. That is absolutely correct, Senator.
    Chairman Cornyn. Does the Department of Justice believe 
that Congress can constitutionally authorize extended detention 
of suspected terrorists, serious foreign policy threats, and 
others deemed a danger to the community as opposed to those who 
are apprehended merely for, let's say, a visa violation?
    Mr. Cohn. We do, Senator. First of all, again, as noted, 
Zadvydas and Suarez-Martinez left the door open because they 
did not resolve the constitutional issue. Moreover, roughly 50 
years ago, in the Mazai case, the Supreme Court held that 
indefinite detention is permissible with respect to aliens who 
are stopped at the border and excluded.
    With respect to those who made an entry, the calculus is a 
little bit different because these aliens do have greater due 
process rights. But it is important to note in this context we 
are only dealing with aliens who have been ordered removed. And 
at that point, those who have made an entry are on equal 
footing with those who have not made an entry. The Fifth 
Circuit and the Tenth Circuit have so recognized, and they 
upheld the constitutionality of indefinite detention.
    Moreover, it is important to note they were talking only 
about a very narrow class of aliens, as you pointed out, aliens 
who are a significant danger to the national security, foreign 
policy, or the community--a very narrow, targeted group of 
aliens, and that explains why it is constitutional.
    Furthermore, we endorse the procedural protections that 
Congress provided in 236(a) and that ensures that all aliens 
receive the process to which they are due.
    Chairman Cornyn. Thank you, Mr. Cohn. I did not mean to 
just pick on you. I have some questions for Mr. Cerda, but my 
time is up here for the first round. So, let me turn the floor 
over to Senator Kennedy for any questions he may have.
    Senator Kennedy. Thank you very much, and this has been 
interesting and it is obviously enormously troublesome.
    All of these individuals have actually been to jail, have 
they? They were all sentenced? Were they all sentenced under 
the old guidelines, Mr. Cohn?
    Mr. Cohn. Yes, Senator. The aliens in the Zadvydas context 
have all served time in jail. That is correct.
    Senator Kennedy. Let me just ask both of you about the 
vigilantes, whether the Justice Department and the Department 
of Homeland Security has a position on those. Do you have a 
position? Is it written up? Will you provide it for us? I know 
this is not directly probably in the Civil Division, and in 
Homeland Security you probably have something. If not, can you 
provide it for us? Or if you do know it, can you state it?
    Mr. Cohn. I am sorry, Senator--
    Senator Kennedy. On vigilantes, what exactly is the 
Department of Justice position with regard to vigilantes now on 
the border, on the Arizona border?
    Mr. Cohn. At this point, Senator, I probably should not 
comment on that because the scope of my testimony has been 
limited to the issues of St. Cyr and Zadvydas.
    Senator Kennedy. Mr. Cerda?
    Mr. Cerda. Senator, I am not in a position either to 
comment on that. It really does not impact the Detention and 
Removal Operations side.
    Senator Kennedy. Well, you have responsibility of detention 
and removal, and as the Acting Director of Detention and 
Removal for Homeland Security, you don't have any position? 
Because the vigilantes are obviously involved in either--I 
guess some detention and some removal on the border. But that 
does not come across your plate?
    Mr. Cerda. I am not aware of any specifics to that, 
Senator, so I am not prepared to comment.
    Senator Kennedy. All right. Well, if you can find out if 
there is one, I would be glad to have it, because it would seem 
to me that the Homeland Security would have at least some 
position on this since it is directly related to people who are 
at the border. And there have been reports of vigilantes 
tripping detection devices for border crossers and other kinds 
of activities which are directly related to Homeland Security. 
So I just was interested to see whether you have some--if there 
is a policy or if you want to submit it, we would be glad to 
have it. I have not seen one yet from the Department, but if 
you have it, we would like to have it.
    Mr. Cerda. I will follow up with our Congressional Office, 
Senator.
    Senator Kennedy. Thank you, Mr. Chairman.
    Chairman Cornyn. Senator Kyl?
    Chairman Kyl. Thank you. I might mention to the Senator 
from Massachusetts, as you may imagine, our newspapers and 
other media in Arizona report extensively on this every day, 
and at least to my knowledge, the reporting has only suggest 
one case where there was a detention by one of these so-called 
Minutemen who was released and the immigrant was treated 
appropriately by the Border Patrol. So I don't think there are 
any situations like that, at least that have been reported 
publicly in the media. But when the whole exercise is over 
with, I think it would be a useful exercise to have somebody 
official report on it so that we do have a good handle on what 
is going on.
    Senator Kennedy. If the Senator would just yield, what I 
was just asking is what is the current position with regard to 
the groups. I mean, do they have a policy position with regards 
to it and what is the policy? You know, what was the policy? 
That is what I was interested in finding out from Homeland 
Security and from the Justice Department. I appreciate Mr. Cohn 
is here on a very specialized issue, and this has been 
enormously interesting. And I think it is asking a lot to ask 
you for a detailed position on it, but there has to be at least 
some reaction from the Justice Department in terms of the 
Border Patrol and the rest. There must be some policy kinds of 
issues or questions, and I was just interested in what the 
Department's was. But I do not want to delay Mr. Cohn or other 
questions on the matters that are before the Committee.
    Chairman Kyl. And again, in response to that, I know there 
were a lot of arrangements worked out between both the Cochise 
County sheriff's department and the Border Patrol and these 
beforehand to try to prevent improper activities. And, again, 
it is appropriate to understand what our Government's policies 
in that regard are.
    Senator Kennedy. Thank you.
    Chairman Kyl. Perhaps, Mr. Cohn, you could--well, let me 
get Mr. Cerda since he has not been given a question yet here. 
How many of the illegal immigrants released into the interior 
of the United States each year are due to lack of detention 
space to keep them detained?
    Mr. Cerda. The DRO in Homeland Security and ICE is budgeted 
for 19,400 beds. Last year, we had over 200,000 admissions, 
initial admissions in our detention situations, and the 
population rotates through there, whether it is through 
deportations, through bonding, through granting of relief, 
terminations, voluntary departures, different scenarios. So on 
a constant basis, we are at 100-percent capacity.
    We make decisions daily on a case, national security, 
criminal aliens, mandatory detainees. Those remain and will 
continue to be our priority cases.
    Chairman Kyl. So you have to then make decisions as to 
which ones to release because you do not have space even though 
they should be detained versus those who are a higher priority 
to keep in detention. Is that correct?
    Mr. Cerda. On the non-mandatory cases where there is 
discretion, we will look at them, and we have our 
prioritization list out there
    Chairman Kyl. Can you give us any sense in terms of 
quantification of maybe even a percentage or something like 
that, where on a weekly or a monthly basis you have had to make 
that determination and release people who otherwise would have 
been detained had you the bed space?
    Mr. Cerda. I would not be able to tell you on a daily basis 
where we are with that. What I can say is right now we have in 
the non-detained document, which are individuals who are in 
some form of phase in proceedings, immigration proceedings, not 
detained, our non-detained document right now just recently 
reach over a million. So we have--
    Chairman Kyl. Over a million people?
    Mr. Cerda. Correct. So we have a million individuals who 
are in some phase of immigration proceedings at this point in 
time who are not in custody, released on a variety of 
conditions. Some are under alternatives to detention. Some are 
on bond, having posted bond. Some of them are released to 
relatives in the United States.
    Chairman Kyl. I am sure you do not have any statistics 
right here today as to how many people show up versus how many 
skip their bond.
    Mr. Cerda. Historically, we have a situation where you have 
two areas of concern. The first one is individuals who fail to 
appear for their hearings with the immigration judge, and 
historically that has been in general in the range of 30 
percent who are not detained at the times of their hearing, 30 
percent fail to appear, essentially become in absentia cases, 
fugitives. Subsequent to that, of those that do appear for 
hearings, the other point of critical concern here is that of 
those ordered removed, you are looking at 80, 85 percent 
failing to appear and comply with removal orders.
    Chairman Kyl. So for those ordered to be removed, 80 to 85 
percent do not comply.
    Mr. Cerda. That is our historical data.
    Chairman Kyl. And I presume we do not know where they are.
    Mr. Cerda. Those will be leading into the fugitive 
situation that we have. We are trying to address it 
aggressively, but right now at this time we have a large 
fugitive alien population.
    Chairman Kyl. Well, what would it take--and perhaps you 
need to get back to us in writing on this. But what would it 
take both to end this catch-and-release program in terms of the 
detention space? And, secondly, what would it take in terms of 
manpower or other requirements that you would have to 
successfully apprehend those who do skip out?
    Mr. Cerda. We can get back on that, and I think, again, 
what we are trying to approach it is not only solely a 
situation of additional detention beds but the resources. You 
have judges involved; you have attorneys involved. And we are 
also looking at alternatives to detention that are very 
effective and actually do raise compliance that we are looking 
at right now.
    Chairman Kyl. Mr. Cohn, let me just ask you one question 
here before my time is up. What kind of difficulties do you 
have in removing violent criminals to their countries of 
origin? And, specifically, I have reference to the possibility 
that some countries decline to repatriate their own nationals 
who have committed violent crimes here in the United States. 
Who are they and what is being done to get those countries to 
take their people back?
    Mr. Cohn. Thank you, Senator Kyl. You are absolutely 
correct. There are certain countries that do refuse to 
repatriate their own nationals. One of those countries is 
Vietnam, which is why Tuan Thai is still in this country.
    We also have difficulty repatriating aliens back to Cuba, 
and we also have difficulty with other countries, for example, 
Somalia. Although we are lawfully permitted to remove aliens to 
Somalia, we encounter practical difficulties.
    Now, these are not legal hurdles in the U.S. law that we 
are talking about. These are practical difficulties, 
international realities that prohibit us in certain cases from 
removing an alien back to his home country.
    As for what steps should be taken, we would like to work 
with the State Department and Homeland Security and the rest of 
the administration to remove these hurdles. But the hurdles we 
are talking about in these cases, again, are not hurdles within 
the INA but, rather, practicalities and international 
realities.
    Chairman Kyl. Thank you.
    Chairman Cornyn. Senator Sessions?
    Senator Sessions. Just to follow up, Mr. Cerda, on the 80, 
85 percent that don't comply with a deportation order, one of 
the things that is trouble to me is that those who are not 
complying who become fugitives in violation of a court order 
are not readily placed in the Crime Information Center, so that 
if they are arrested for DUI or petty larceny or a serious 
offense or speeding and they are identified, they run their 
identification, it is not coming back to the local police 
officer that this person has absconded.
    What is the status of cutting down--or putting these names 
in the center, in the Information Center, so it is available to 
police officers all over America? And let me just say for those 
who may not understand how fugitives are apprehended in this 
country. Fugitives are apprehended more often than not by some 
police officer in some town who stopped them for speeding and 
they ran an NCI check on them, and it becomes a positive and 
they hold them to find out what the charges are. We do not have 
thousands of police officers going out and looking for these 
people who are absconding. They get picked up in the normal 
course of business. But they cannot be identified if we are not 
putting them in the system.
    So can you tell me how you are doing with that? I have 
raised it in other hearings, and that is the reason I raise it 
with you.
    Mr. Cerda. I think we have different tracks available to 
the State and locals on cooperation. One is the entry of the 
names into NCIC. I don't want to--I hesitate in terms of the 
number. It has slipped my mind. But I can get back to you in 
terms of the actual numbers we have entered into NCIC.
    Senator Sessions. Well, as I recall the numbers, of those 
400,000 that are listed as absconders, we had about 15,000 in 
the system, the last report I got, which is a terribly bad 
thing. What about somebody today who absconds today? Do their 
names immediately go in the system?
    Mr. Cerda. No, they don't go immediately into the system.
    Senator Sessions. Why not? That would be my question.
    Mr. Cerda. Right now I think the last number I had was 
substantially larger than the 15,000. What we have done is 
prioritize the cases we enter into NCIC. We have entered all 
cases that we can enter into NCIC with respect to criminal 
aliens.
    Senator Sessions. I believe the number is now 38,000, is 
the latest figure I have that have been entered in there. Maybe 
it has gone up some.
    Mr. Cerda. I will follow up on that, but it is a priority 
to get it in there. We have entered all the criminal aliens--
    Senator Sessions. If you get arrested--I hate to interrupt 
you, but people need to understand. If you get arrested for DUI 
in any town in America and you don't show up for court, your 
name goes in the system that day. And if you get picked up 
somewhere else in another town in another State, they are going 
to know you are a fugitive. Why are these cases not being put 
in the system?
    Mr. Cerda. Again, one, you have the numbers that are out 
there, over 400,000 cases. We do have to prioritize those 
numbers. In addition, though, we do have available to all State 
and locals 24/7 the Law Enforcement Support Center, which can 
be contacted, where they will get a determination of alienage 
to include somebody who has been ordered deported. That can be 
done today.
    In addition to that, we do have an immigration violators 
file in NCIC, a sub-file in NCIC that has additional access 
that they can do queries directly with the Law Enforcement 
Support Center. That exists 24/7 available to the State and 
locals. In that sense, we do have that access, that 
connectivity, and they are an important partner for us.
    Senator Sessions. I have checked with people that I know in 
law enforcement for many years. They don't know this. They 
don't have this phone number out on their vehicle that they 
know who to call. They don't even know there is another system. 
Everybody else that they deal with, if they are a fugitive, are 
in the National Crime Information Center. I have asked the 
question. It is not a matter of technology. The system can 
handle the extra names. It just would strike me that you are 
not serious about it. I hate to say that. But if you were 
serious about the absconders, Mr. Cerda, wouldn't the first 
thing you would do would be to put their names in the system?
    Mr. Cerda. I would agree in that approach. It is a multiple 
approach. There is not one single solution. We are aggressively 
with the fugitive ops teams--last year, we had significant 
numbers, using intelligence, using the local law enforcement. 
This year, again, we are ahead of those numbers. We are taking 
this issue of fugitive aliens seriously. We are taking an 
aggressive approach, and we will continue to enter into NCIC. 
We will continue to promote. And if it is an issue locally in 
your area that they are not cognizant of the service, we will 
be happy to go out there and promote it even more aggressively.
    Senator Sessions. Well, they are not knowledgeable 
anywhere. They are just not knowledgeable. The system is not 
working. If you want it to work, you will put the names in 
NCIC. If you don't want it to work, you won't. Right now I 
assume you do not want it to work because you are not putting 
names in the system. How can I conclude otherwise?
    Mr. Cerda. We did have 667,000 officers out there last year 
who did make the query who were knowledgeable of the system. 
Clearly, that is not the goal. We are going to continue to grow 
that. This is something serious.
    Senator Sessions. There were that many queries made, and a 
lot of those were Federal queries. I assume the average police 
officer in the average town does not know about this system. I 
have to believe that is so.
    Mr. Cerda. We will continue to promote it, sir, and get the 
word out.
    Senator Sessions. My time is up, Mr. Chairman.
    Senator Coburn. Just a rhetorical question. What difference 
does it make if most of the names are not in it? If the names 
are not in it, it does not matter whether they know about the 
system.
    Senator Sessions. There is another system that ICE has 
that--
    Senator Coburn. Where they have to call a phone number when 
they are in the midst of doing this rather than go on the 
computer in their car.
    Senator Sessions. Right. That is correct. So he is saying 
that it is in that system, but as a practical matter, it is not 
available to the officer routinely, and that is why they are 
not picking them up.
    Senator Coburn. Actually, I want to ask a tougher question. 
Will you give this Committee an answer on what you are going to 
do with the 450,000 names and when you are going to put them 
into the system?
    Mr. Cerda. We will give you what numbers are--how much we 
have entered so far.
    Senator Coburn. No, no. What is your plan to get the 
numbers into the system so that you can use it?
    Mr. Cerda. We will give you our plan to that.
    Senator Coburn. I want to ask a question. You know, it is 
somewhat humorous to me that the group of Minutemen are called 
vigilantes, and I know our President has called them that. But 
it just means to me he does not get it. The fact is this 
country is extremely worried about our border. And everything 
that each of you have talked about today will never be solved 
until we control our border. And I don't know how you are not 
depressed every day, because you can do your job thoroughly, 
but it is just going to multiply every year that we don't 
control the border.
    I would like to ask each of you, what is your understanding 
of our border control policy in this country? And the fact that 
we don't have a border control policy that is effective, how 
does it impact your job?
    Mr. Cerda. Well, clearly, it is a significant challenge 
that we have out there. In my perspective, Detention and 
Removal Operations, we are the supporting unit for the 
arresting agents out there. The numbers are significant, and as 
our numbers are showing, we are hitting historical records 
throughout. Plenty of business, plenty of clients out there to 
process through the system, and, you know, frustrated. I am not 
going to be here in a position to say we are going to throw our 
hands up and surrender over here. We are not. We are going to 
continue to tackle the process, the problems.
    Senator Coburn. Do you send information back up the food 
chain so that they say, you know, we are working here trying to 
do this, but if you don't make the necessary movements in terms 
of Border Patrol, enhance technology on the border, that you 
are not going to allow us ever to be able to do our job? Does 
that information head back up?
    Mr. Cerda. We have to work hand in hand with the Border 
Patrol, with the investigators, with the inspectors at the 
airport. The ABC approach that we have out there, that is an 
integrated approach to try to stem one of the weaknesses on the 
border. That process there is not an individual Border Patrol. 
It is a DHS effort there. We are contributing beds. We are 
taking a strong deterrence posture on detention in that area. 
The Border Patrol is adding the resources and the investigation 
side is adding additional resources.
    Senator Coburn. But it is not discouraging to you that 
there is not the political will in this country right now to 
control the border so that you can do your job, and instead of 
77 percent of everyone convicted commits another crime in this 
country? That is not discouraging to you because you deport 
them and they come right back?
    Mr. Cerda. I view it as we are Nation of laws and we are 
going to enforce it regardless of what the situation is. If we 
fail to continue to pursue the situation, to take the challenge 
on, then, yes, we do have a problem. The men and women that I 
work with at Detention and Removal Operations, they are 
committed. They want to get the job done.
    Senator Coburn. I am not questioning the commitment. You 
are missing my point. I am questioning the commitment of 
whether or not you are telling the people up above you, You 
have got to give the border if we are ever going to be able to 
do our job? Is that communication going in that direction?
    Mr. Cerda. Yes, we are communicating.
    Senator Coburn. All right. Thank you.
    Mr. Cohn?
    Mr. Cohn. Senator Coburn, I am very glad you raised this 
issue. I agree with you. there are significant critical flaws 
in our Nation's immigration laws, and this has tremendously 
impacted my job and the job of people in my office.
    Just to give you an example, in 2001 there were 1,600 
petition for review cases. In 2003, there are close to 8,500. 
In 2004, there are over 10,000.
    Now, I am not going to say this increase is due solely to 
the increased number of illegal immigrants, but it is due 
partially to that. The people in my office are working 
extremely hard. They work extremely hard every single day. The 
average lawyer in my office writes a brief in the appellate 
courts every single week. They work so hard because there are a 
lot of illegal aliens in this country and there are a lot of 
court cases. So I am very, very glad you raised this issue.
    Senator Coburn. We also do have a law. It is illegal to 
come here illegally, and we need to enforce that law first 
before we start thinking about enforcing the rest of the laws, 
because we will never win until we enforce that first and 
utmost law: our border security and integrity. And I would just 
hope that as you all struggle through--and I praise your work. 
You are doing the right thing--that you will send it up the 
chain. I mean, we are spending money down here that we could 
have not spent had we had the border secured in the first 
place. Then we can have a national debate on what we do with 
illegal aliens that are already here that are not criminals. 
But we are never going to have that debate until we control the 
border, and I would just hope that you would recognize your job 
gets made harder every day that that border stays porous.
    And I am not against the idea that the people that have 
gone to Arizona--they are trying to make a point. The Federal 
Government is not doing its job in terms of border integrity, 
not only in terms of the number of illegal aliens that come but 
also in terms of the number of terrorists. And I believe their 
point is well made.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Thank you, Senator Coburn.
    Let me say, gentlemen, that the purpose of these hearings 
and to hopefully--well, my purpose in these hearings, and I 
think Senator Kyl shares this--is to document the challenges 
that we face in this country when it comes to our immigration 
system and hopefully provide all of the Members of Congress, 
not just in the Senate but across the Government and across 
America, the information that we need in order to tackle the 
big challenges that you are out there confronting on the front 
line every day. And we admire and respect your willingness to 
take on this tough job, but we are trying to figure out how we 
can add resources, we can be smarter about addressing it in a 
way that makes some of these problems easier.
    But, let me talk to you, Mr. Cerda, about a problem that we 
have in Texas. Of course, we have a big, long border with 
Mexico, and, of course, just talking about people who committed 
crimes; we are talking about suspected terrorists. People come 
up through southern Mexico and from Central America and other 
places around the world. So, not only do we have Central 
American and Mexican immigrants, we have what are sometimes 
called ``other than Mexicans.'' OTMs is the name, as you know.
    But, we have a policy right now, because of the lack of 
detention facilities, that some have called ``catch and 
release.'' And you know what I am talking about, don't you? And 
as I understand it, the policy is once the Border Patrol 
detains an individual, they will check for their criminal 
background, and unless they meet certain criteria, their policy 
is to release them based upon their promise to come back for a 
hearing at a later date, at which time it will be determined 
whether they should be deported. Is that correct?
    Mr. Cerda. The policy when we apprehend somebody, the 
arresting officers, one, we are taking clearly--you look at the 
three key priorities that we have: national security cases; 
mandatory detainees, aliens who are under our laws required to 
be detained, mostly because of criminal activity; and then also 
just anybody else who does not fit that but has a community 
safety, criminal activity potential out there.
    Right now we are--in our overall national population, those 
three areas right there consume about 80 percent, 75 to 80 
percent of our National bed space capacity.
    Chairman Cornyn. And your bed space capacity is right 
around 20,000 now?
    Mr. Cerda. Nineteen thousand four.
    Chairman Cornyn. Nineteen thousand beds, and for the most 
part, other than those top three categories you mentioned, and 
perhaps whoever else you can detain that you consider a flight 
risk, a special flight risk, basically the policy is to let 
people go based on their promise to come back.
    Mr. Cerda. Based on those three factors, you know, slicing 
up the pie in terms of detention bed space, you have a sliver 
for non-mandatory cases where at that point the arresting 
officer looks at the case and makes a determination of 
conditions for release.
    Chairman Cornyn. For example, in Harlingen, Texas, the Rio 
Grande Valley, 85 percent of those people who are released 
never show back up again. Are you familiar with that figure?
    Mr. Cerda. I am not familiar with that figure.
    Chairman Cornyn. And you said that nationwide it is about 
30 percent?
    Mr. Cerda. There are two points of departure in the 
process, two key points.
    One is individuals that are released, given their notice to 
appear to go into their hearings. At that point you are looking 
at 30 percent that do not appear for their hearings at some 
point and are ordered deported in absentia.
    Subsequent to that, you have those that, while released, 
they are still going through the process, who are ultimately 
ordered removed. At that point 85 percent fail to comply.
    So those are the two key points that we are trying to 
address with the alternatives to detention potentials that 
exist out there.
    Chairman Cornyn. And the reason why--and nationwide that 
figure is 30 percent, but as I pointed out, in places like 
Texas--and I don't know what it is in Arizona--places where we 
have massive immigration across our borders, the number is much 
higher. And the reason we are seeing that happen is primarily 
because of a lack of detention space, bed space, where these 
people might be detained pending their deportation hearing. Is 
that correct?
    Mr. Cerda. You essentially have a certain amount of beds, 
and you have to prioritize within them and operate within them, 
so correct, you have 19,400 every day, we are at capacity, and 
decisions have to be made.
    Chairman Cornyn. And part of those decisions mean releasing 
not just economic immigrants, what I would call people who are 
looking for work from Mexico or Central America, but literally 
people who fly from China into countries in South America, who 
come up Central America, fall in that category of OTMs. 
Correct?
    Mr. Cerda. You do have those cases, yes.
    Chairman Cornyn. As well as people from Middle East 
countries, some of whom are areas of special concern to our 
country because of anti-terrorism concerns. Is that right?
    Mr. Cerda. I think we approach those cases not based on--
you know, you run the security checks on all these individuals. 
You could have a serious security situation of somebody from 
the People's Republic of China or Taiwan, and that individual 
would be detained as part of it. Similarly, somebody from the 
Middle East--I don't think we draw a broad brush over the 
country, but clearly every one of those we look at is a 
potential vulnerability, is a potential national security risk, 
and it is a situation where we have to identify them, run the 
checks, hope the intelligence, if there is any that is 
negative, is available, and based on that make determinations 
of detention or release. We have got to scrub the cases.
    Chairman Cornyn. Just so we have the picture correct, we 
know how tough a job the Border Patrol has. We don't know how 
many people they actually detain and how many people get 
through. But they detain, they release the overwhelming 
majority of those because they do not fall into those high-risk 
categories that you have talked about. And, of those released, 
in order to come back for their hearing, a substantial 
percentage of them never show up.
    Mr. Cerda. At least 30 percent up front fail to show up for 
their hearing.
    Chairman Cornyn. And that is across the Nation, correct?
    Mr. Cerda. Correct.
    Chairman Cornyn. But, I suggest to you that that number 
would be a lot higher in places like Texas, Arizona, 
California, and other southwestern border States.
    Let me just finish this up, just to complete the thought, 
and then I will turn it over to Senator Coburn or other 
colleagues.
    You mentioned that 85 percent of those who fail to show up 
for their deportation hearing after 30 days, 85 percent of them 
never show up and they become absconders. Is that right?
    Mr. Cerda. Correct.
    Chairman Cornyn. That is, they basically have forfeited any 
right they have to pursue any additional legal proceedings, and 
they are essentially under a final order of deportation.
    Mr. Cerda. Correct.
    Chairman Cornyn. And we currently have about 465,000 people 
who are absconders in the United States, and we simply don't 
know where they are. Is that right?
    Mr. Cerda. You have a population of 465,000 fugitive aliens 
out there.
    Chairman Cornyn. And about 80,000 of those or so are 
criminal absconders, correct? Somewhere around there?
    Mr. Cerda. That was the original number that came out. I 
could not give you the latest. Again, you are looking at 
statistics throughout there when we were trying to figure out 
the population. This is something that has been historical.
    Chairman Cornyn. I am trying to get a general--
    Mr. Cerda. But you do have criminal aliens included in that 
population.
    Chairman Cornyn. A substantial component of that, maybe 20 
percent, somewhere around that, are criminals who have 
committed crimes, who are simply on the run. They are in the 
United States, and we don't have the people, we don't have the 
resources to find them and to make sure that they are deported 
according to law. Is that right?
    Mr. Cerda. It is a significant challenge.
    Chairman Cornyn. You bet it is, and I think part of what we 
are trying to do is to understand better how big that challenge 
really is so we can determine whether we need to provide 
additional resources, which I think we do, so that you can do 
that job even better.
    Senator Coburn?
    Senator Coburn. Yes, just a couple of short questions.
    Since there are about 70,000 on the NCIS list and we have 
got, I think your testimony was, now 460,000 absconders.
    Mr. Cerda. Correct.
    Senator Coburn. It would seem to me, since you all are so 
stretched and you only have 20,000 beds or 19,400 beds, that 
might be a motivation for not having them on the list.
    Mr. Cerda. Absolutely not. We have got to step back and 
recognize that this 465,000 has grown through the decades. 
Post-9/11 we brought some attention to it, and for the first 
time, with your support, we have teams dedicated to this. And 
we are being very aggressive. It is a Nation of laws, and these 
individuals have had their due process. They have had their 
hearings, they have had their right to claim benefits, and they 
have been ordered deported and now have decided to flout the 
law.
    I think you look at it, too, though, in terms of it is not 
a resource issue but also you have got to recognize the fact 
that what are the options for these individuals when ordered 
deported if released. And as I put it, one of the challenges is 
they could either comply with us and our request to appear for 
removal processing and get deported, or alternatively, they can 
make a run for it and see how long it takes for us to catch 
them; and when we do catch them, the penalty again is they will 
be deported. But during that period--
    Senator Coburn. So there is no downside for them.
    Mr. Cerda. And that makes the challenge even larger there.
    Senator Coburn. With 19,400 beds, about $20,000 a year a 
bed?
    Mr. Cerda. Right now we are looking at $90 a day, and I 
believe a yearly rate, roughly over $30,000.
    Senator Coburn. So $30,000 times 19,000, that is half a 
billion dollars a year that we have got for beds. Wouldn't it 
be smarter to put the half a billion dollars down on the border 
and stop the inflow so we don't need the beds? Rather than give 
more resources here, wouldn't it be smarter to put the 
resources on the border to control the border? Again, I am 
telling you, the guys in Arizona get it. We are fixing the 
wrong problem. The problem is the border.
    I will let you go with that. One last thing. Low-priority 
aliens include those who have committed fraud while applying 
for immigration benefits with DHS, correct?
    Mr. Cerda. You have it in a prioritization list, yes.
    Senator Coburn. So why instead of letting these aliens go, 
why aren't they immediately turned over to DOJ for document 
fraud prosecution?
    Mr. Cerda. You are looking at a situation that if they do 
come into our custody and prosecution is declined, that is 
where they fall. But we are aggressively referring re-entry 
cases, individuals who have been multiple re-entries, for 
prosecution, document fraud, benefit fraud. Again, we view 
these as vulnerabilities to national security.
    Senator Coburn. Well, I want to thank both our witnesses. 
You can see from my questioning there is a lot of frustration 
going on for the people that I represent in Oklahoma and people 
throughout this country. And I hope it goes up the chain to the 
administration. The rule of law does need to be enforced, and 
the first one is the border.
    Thank you.
    Chairman Cornyn. Mr. Cohn, I just have one more question, 
and then unless there are other questions of this panel, we 
will move on to the second panel.
    In St. Cyr, the Supreme Court decision we were talking 
about earlier, the Supreme Court wrote that, ``A construction 
that would entirely preclude review of a pure question of law 
by any court would give rise to substantial constitutional 
questions.''
    Does the Department of Justice believe that H.R. 418 and 
last year's S. 2443, streamlining or eliminating judicial 
review, avoid those substantial constitutional questions? If 
so, why do you believe that? And, have there been others who 
also agree with that position?
    Mr. Cohn. Senator Cornyn, thank you for raising that issue. 
The answer to your question is the two bills you referred to--
the REAL ID Act and the FILA bill--both of those do avoid all 
the constitutional concerns because both bills contain the same 
language. In both bills, it is expressly very clear that all 
aliens, including criminal aliens, can go to circuit court, the 
circuit courts of appeals, and they can present their 
constitutional claims and their pure questions of law. Every 
alien can do that. Every single alien has his day in court. 
Every criminal alien has a day in court. That day in court 
would be in the courts of appeals. Pure questions of law, every 
single one of them, and constitutional claims can be presented.
    So both bills you referred to are in compliance with the 
Supreme Court's words in St. Cyr. And we are not the only ones 
who believe that. During the St. Cyr litigation, there was a 
companion case, Calcano-Martinez, and the ACLU represented the 
petitioner in that case. And they said the same thing. They 
said that review in the courts of appeals was constitutionally 
permissible. And that is precisely what the REAL ID bill does. 
It puts review in the courts of appeals.
    At oral argument, the ACLU was pressed as to what that 
scope of review had to entail, and the ACLU lawyer made clear 
that the review had to include simply what was traditionally 
historically available on habeas, and that includes 
constitutional claims and questions of law. And the lawyer made 
clear what he meant by questions of law. It was construction of 
statutes, interpretations of statutes. That is what has to be 
reviewed. And that is reviewable under H.R. 418. All pure 
questions of law and constitutional claims are reviewable.
    Moreover, I read the ACLU's statement for the next hearing, 
and the two concerns they presented really are not legitimate 
concerns, with all due respect. They raise one issue about 
mixed questions of law. They refer to them as applications of 
law. A mixed question of law is in effect a question with two 
parts. There is the legal part of the application and the 
factual part. The legal part, of course, is reviewable, like 
all questions of law under this H.R. 418. The factual part 
would not be reviewable, but, again, it is clear that under the 
historical scope of habeas review, factual questions are not 
reviewable. And the ACLU agreed to that in Calcano-Martinez.
    To give an example, let's look at St. Cyr itself. In St. 
Cyr, the question concerned the retroactivity of a provision 
that abolished a type of relief called 212(c) relief. The 
question was whether that abolition applied to aliens who pled 
guilty prior to IIRIRA's effective date. The Supreme Court held 
the abolition did not apply, and that is the legal principle.
    So if another case were to come around in which an alien 
said, ``I pled guilty prior to IIRIRA's effective date, I am 
still entitled to 212(c) relief,'' there would be a factual 
question and a legal question. The factual question is when did 
he plead guilty. That is not reviewable because factual 
questions are not reviewable. The legal question, however, 
embedded within the application, is: Does he have a right to 
212(c) relief if he pled guilty after IIRIRA's effective date?
    If a court were to misapply the holding in St. Cyr and say 
he is not eligible, even though he pled guilty prior to the 
effective date, that would be a misapplication of law, and that 
would be reviewable under both bills you mentioned because it 
is a question of law.
    Finally, they mentioned the issue about needing a backstop, 
and I agree there needs to be a backstop. But that backstop, of 
course, does not have to be in district court. It need not be 
in habeas. The backstop could simply be in the courts of 
appeals.
    Now, I disagree with them that there is a need to amend the 
language because all the concerns they raised can be addressed 
simply through the pre-existing motion to reopen procedure. A 
denial of the motion to reopen can be challenged in the courts 
of appeals. However, to the extent anyone were to disagree with 
that, the solution is simply to amend 242(b)(1) to permit 
particular claims in the courts of appeals. The solution is not 
to give a backstop in habeas because that would propagate the 
pre-existing problem we have now of criminal aliens having 
twice the review of non-criminal aliens.
    Chairman Cornyn. Thank you, Mr. Cohn.
    Colleagues, we are ready to move to the next panel unless 
anyone has any--
    Chairman Kyl. I have got a couple of questions for the 
record.
    Chairman Cornyn. Very good. Senator Kyl has some questions 
for the record.
    Senator Sessions, if you have some questions?
    Senator Sessions. Mr. Cohn, I have recently done 
considerable research and we have worked on a legal article on 
the question of the authority of local law enforcement officers 
to make arrests of those in violation of Federal immigration 
laws. As I read the authority, only the Ninth Circuit has held 
explicitly, and that in dicta, not as part of its holding, that 
violation of a misdemeanor immigration law, such as an 
overstay, does not give local law enforcement officers a legal 
basis, if they have one under State law, to detain someone; and 
that with regard to the other offenses, such as illegal entry 
and violations and crimes in the country and that sort of 
thing, State officers have the authority to do so.
    In fact, the other circuits, I believe two or three other 
circuits, imply that the State and local law enforcement 
officers have that with regard even to the misdemeanor overstay 
cases--or the civil, not misdemeanor, civil overstay cases.
    What thoughts do you have on that?
    Mr. Cohn. Senator Sessions, I am glad you raise this issue 
of local law enforcement. It is an extremely serious issue. I 
wish I could say more about that, but the Department is still 
developing its position internally on this issue. I would like 
to share some thoughts on it, but at this point I have to 
refrain and not get ahead of other people in my Department on 
that issue.
    Senator Sessions. Well, all I would say is this, Mr. 
Chairman: As a result of one small portion of the law in which 
one circuit, the Ninth, has indicated States may not have 
authority, that has been bandied about the country to try to 
convince police officers and mayors that their officers have no 
authority in this regard. But they have inherent authority 
under all the circuits, including the Ninth, to arrest and 
detain someone found to be in violation of the Federal 
immigration criminal law, felony or misdemeanor, for that 
matter. And as a result, some departments out of confusion 
basically are not participating in a way that they would like 
to participate. I don't think we need to be mandating local law 
enforcement to participate, but it is a very huge issue as to 
whether or not our Federal Government welcomes, encourages, and 
is appreciative of them when they apprehend people who are 
violating our laws and turn them over to the Feds for 
processing from there on.
    I know you are ready to go to the next panel.
    Senator Coburn. I just had one little gift. I am going to 
send you both ``Groundhog Day,'' Punxsutawney Phil. You guys 
have got to be reliving that every day, and I think in that 
movie, he has got it easy compared to you.
    Senator Sessions. And I would say that the troops out 
there, the officers on the ground are doing a good job, but we 
are not--this system is not working. You talk to my Alabama 
police officers, as I do on a routine basis, and they tell me 
if they apprehend someone they find to be here illegally, they 
don't even bother to call the ICE agents. They are not coming 
to get them. There was just an article in the Washington Times 
yesterday, I believe, saying 13 had been arrested and released, 
80 percent I assume won't show back up, or any detention order 
that may occur. So it is undermining public respect here, and 
we have got to ask you, Mr. Cerda and Mr. Cohn, to work on it, 
to have some integrity here.
    I was a Federal prosecutor for 15 years, and it is just 
painful to me to see the Federal Government make a mockery of 
enforcement of this situation. We cannot continue. We have got 
to have integrity.
    Chairman Cornyn. Thank you, Senator Sessions.
    And thanks to you, Mr. Cohn and Mr. Cerda, for being here 
today with us.
    We will now move to our second panel of witnesses, and we 
are pleased to have a distinguished second panel as well today, 
and I want to thank them for their appearance. If you don't 
mind, I will start introducing you as you make your way.
    On this panel we will hear from David Venturella. Mr. 
Venturella is currently employed by U.S. Investigations 
Services. He is a former Acting Director of Detention and 
Removal for the Department of Homeland Security and has spent 
close to two decades serving our country in the immigration 
arena.
    Joining Mr. Venturella on this panel is Lee Gelernt, Senior 
Staff Counsel, Immigrants' Rights Project, American Civil 
Liberties Union. It is significant to note that Mr. Gelernt was 
also co-counsel in the St. Cyr case, so perhaps he will have 
some comments about that, which we have already talked about 
earlier.
    Let me extend a welcome to both of you, and thank you for 
being here with us. Please don't forget to turn on your 
microphone, like some of us do from time to time, when you 
begin to speak, and let me ask Mr. Venturella if you will start 
with your opening statement. We will ask each of you to make 5-
minute opening statements, and then we will follow with some 
questions. Thank you again for being here.

 STATEMENT OF DAVID VENTURELLA, U.S. INVESTIGATIONS SERVICES, 
                        WASHINGTON, D.C.

    Mr. Venturella. Mr. Chairman, I would like to thank you and 
the other members of the Subcommittee for the opportunity to 
testify today. I am honored to appear before you to discuss the 
matter at hand.
    Prior to leaving my Federal post last year, I was 
responsible for enforcing the immigration and naturalization 
laws of this country for 18 years. I began my law enforcement 
career as a deportation officer with the former Immigration and 
Naturalization Service and ended my career as the Acting 
Director of Detention and Removal Operations with U.S. 
Immigration and Customs Enforcement. In that capacity, I was in 
charge of overseeing the detention and removal efforts of 
criminal and illegal aliens who ere in the United States.
    Now, on a personal note, I am also the son of an immigrant, 
and I understand why so many people have risked their lives, 
leaving their families and homes and everything they know to 
come to the United States to pursue the American dream. For 
nearly 230 years, this country has welcomed immigrants from all 
walks of life, and the contributions of these immigrants have 
built this great Nation to be what it is today--a free Nation.
    However, while we are known worldwide as a shining beacon 
of light for the countless immigrants who come to our shores, 
we are also known as a Nation where law and justice prevail. 
Without strict and fair enforcement of our immigration 
statutes, our country will remain vulnerable to the threats 
that arise from individuals who willingly exploit gaps in our 
immigration system.
    The accomplishments of the men and women responsible for 
enforcing our Nation's laws in the former INS and now in the 
Department of Homeland Security are extraordinary. Yet, despite 
their heroic efforts, the number of illegal immigrants living 
in the United States and coming across our borders continues to 
grow.
    Why have our country's efforts in enforcing immigration 
laws fallen short of expectations after 9/11, even though 
Congress has provided significant increases to the budgets of 
the agencies responsible for carrying out this important 
function? The answer is simple. Our law enforcement agencies 
dedicated to this mission have done little to develop a 
cohesive and comprehensive immigration enforcement strategy.
    Instead of viewing the issue holistically, what you see are 
a number of independent programs and independent efforts 
competing for resources and delivering mixed results. While 
immigration is a complex, emotional, and political issue, the 
inability to understand the importance of linking the 
enforcement functions of the immigration bureaus to carry out a 
common mission and strategy is baffling.
    Immigration enforcement must be viewed as a continuum. 
Effective enforcement of our immigration laws will not be 
achieved until all parts of the continuum are balanced and are 
in sync with one another.
    U.S. Border Patrol agents risk their lives every day, only 
to see their efforts wasted because of a lack of detention 
space to hold those they have arrested for crossing our borders 
illegally.
    Moreover, less than 1,000 deportation officers are asked to 
manage and supervise hundreds of thousands of aliens every year 
who are in removal proceedings, and then those same dedicated 
officers are asked to locate those same aliens after years of 
lengthy appeals and stays resulting in a removal rate of about 
60 percent and a growing fugitive population of 400,000 and 
counting.
    Now, these are very real examples of when the enforcement 
continuum is out of sync or imbalanced. If the goal is to deter 
individuals from violating our immigration laws, we are not 
achieving that goal because these individuals suffer no 
consequence for their unlawful actions.
    Now, this is not just a DHS problem. DHS is not the only 
Department responsible for immigration enforcement. The 
Department of State and the Department of Justice have 
significant and vital roles in immigration enforcement. The 
removal of an alien from the United States is the endgame of 
immigration enforcement.
    Yet our foreign neighbors and allies are refusing to accept 
their citizens or nationals for deportation. Although in the 
past couple of years there has been some success in negotiating 
with countries on individual cases, the State Department is 
reluctant to leverage the offending country's foreign or 
economic interest with the U.S. to resolve the repatriation 
stalemate. Very little has been accomplished when repatriation 
of foreign nationals is handled as an isolated issue. 
Eventually, thousands of aliens, in particular criminal aliens, 
have been released back into our communities because of their 
countries' unwillingness to accept them and our own 
unwillingness to sanction the offending countries. In order for 
the Federal Government to achieve effective immigration 
enforcement, the State Department must change their position on 
how to deal with this issue.
    The Department of Justice, which oversees the Executive 
Office of Immigration Review, has looked to improve their 
performance, and while I applaud their effort to improve the 
efficiency of the hearing process, I can recall significant 
delays imposed by immigration judges as well as cases pending 
many years before the Board of Immigration Appeals. And these 
lengthy delays have contributed to the growing number of 
fugitive aliens living in the United States who are currently 
being sought after for removal.
    Any improvement to reduce unnecessary delays in the courts 
and in the removal process will, without infringing on the due 
process of individuals, always serve to enhance the 
Government's ability to achieve effective and efficient 
enforcement of our immigration laws.
    I am very appreciative of the Committee's efforts to 
highlight this I municipality issue, and I thank you for the 
opportunity to testify before you today. I look forward to 
answering any questions you may have for me at this time.
    [The prepared statement of Mr. Venturella appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much.
    Mr. Gelernt?

  STATEMENT OF LEE GELERNT, SENIOR STAFF COUNSEL, IMMIGRANTS' 
  RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, 
                              D.C.

    Mr. Gelernt. Thank you. Chairman Cornyn, Chairman Kyl, 
Senator Coburn, thank you for the opportunity to testify today. 
My testimony will focus solely on Federal court review of 
deportation orders and the issues raised in the Supreme Court 
decision in St. Cyr. That decision made clear that immigrants, 
including those with past criminal convictions, are entitled to 
meaningful court review. At a minimum, the Court stressed they 
are entitled to habeas corpus review, protected by the 
Suspension Clause of the Constitution.
    I want to make two basic points in summarizing my 
testimony. The first point is I want to stress the complexity 
and far-reaching importance of the issues raised by the St. Cyr 
case. Those issues transcend the immigration field and go to 
the very heart of who we are as a country, a country which can 
now count more than two centuries of unwavering commitment to 
the rule of law and to the Great Writ of Habeas Corpus.
    In light of the complexity and historic importance of the 
issues, any legislation by the Congress in this area will 
necessarily raise profound constitutional questions as well as 
difficult questions of immigration policy and court 
administration. We thus respectfully urge Congress to give any 
new proposals in this area the most careful and deliberate 
consideration and to dismiss out of hand any proposals that 
would eliminate habeas corpus for immigrants facing 
deportation. No Congress--no Congress in the history of this 
country--has ever eliminated habeas corpus for immigrants 
facing deportation, and this Congress should likewise reject 
any proposal that would take that extraordinary step.
    As the Court made clear in St. Cyr, immigrants are entitled 
by the Constitution to meaningful review.
    My second point is that, in our view, the various attacks 
that have been leveled against St. Cyr decision are misplaced. 
Insofar as there are concerns about the increased number of 
cases in the Federal courts, those concerns are, in our view, 
more appropriately directed at the Attorney General's decision 
in 2002 to eliminate any meaningful administrative appellate 
review by the Board of Immigration Appeals, the BIA, a decision 
which has shifted much of the burden to the courts and left the 
courts with the task of providing the only real check on 
erroneous decisions by immigration judges.
    Let me conclude with a more general point about the role of 
the courts in the immigration system, namely, that oversight is 
critical to the proper functioning of a fair system. Judicial 
review may seem at times like a technical abstract concept to 
many people, but in practice, the courts play an indispensable 
role in enforcing the rule of law and preventing grave 
instances of injustice that would otherwise profoundly and 
inalterably change the lives of countless immigrant families 
and their children. At the end of the day, it is critical that 
the lives of these children and individuals not be lost in a 
blur of aggregate statistics and abstract policy arguments.
    Jerry Arias-Agramonte, for example, is someone who 
benefited from having court review in his case by habeas 
corpus. He came lawfully to this country as a teenager in 1967. 
His parents were U.S. citizens. He has six U.S. citizen 
children, one of whom served in the military. In 1977, he pled 
guilty to a drug offense in the fifth degree, for which he 
received a sentence of probation. Nearly 20 years later, on the 
basis of this conviction for which he received only probation, 
he was placed into removal proceedings and subject to mandatory 
deportation. He filed a habeas petition and a court found that 
his deportation was, in fact, unlawful. But for the existence 
of habeas review, but for the existence of the courts, he would 
have been deported from a country in which he had lived for 
more than 30 years and likely been separated from his U.S. 
citizen family.
    Significantly, for many immigrants it is the very right to 
go before a neutral judge that in their minds differentiates 
the United States from other countries that lack same 
commitment to the rule of law. They feel viscerally what 
Justice Frankfurter observed long ago--that ``[t]he history of 
American freedom is, in no small measure, the history of 
procedure.'' And no procedure has been more integral to 
preserving freedom in this country over the past 200 years than 
the Great Writ of Habeas Corpus.
    Finally, let me say the ACLU, of course, recognizes the 
authority of Congress to regulate immigration and entry into 
the United States. Our point today is that the process for 
determining who is subject to removal must be fair and 
efficient to ensure that immigrants who have a right to remain 
are not deported erroneously and that the removal system is 
subject to checks and balances.
    Thank you.
    [The prepared statement of Mr. Gelernt appears as a 
submission for the record.]
    Chairman Cornyn. Thank you very much. We will now proceed 
with a round of questioning.
    Mr. Gelernt, let me start with you, please. As I understand 
it, a non-criminal alien case would originally go before an 
immigration judge who would determine his/her rights and would 
provide that initial level of judicial review. If the case went 
against the alien, then she/he would have a right to appeal to 
the Board of Immigration Appeals. And then, finally, they would 
have a right to appeal to the court of appeals. Is that 
correct, sir?
    Mr. Gelernt. Yes, Senator.
    Chairman Cornyn. But what the St. Cyr case dealt with was 
an additional review, and that is by virtue of a writ of habeas 
corpus. Is that correct? So, if I understood Mr. Cohn's 
argument earlier, he said that the criminal aliens get an 
additional layer of review that non-criminal aliens don't, and 
by that I understood him to mean that habeas corpus review, in 
addition to the review before an immigration judge, Board of 
Immigration Appeals judge, and then the court of appeals, that 
that would be more than a non-criminal alien would get. Did I 
understand that correctly? And, if I did, do you agree with 
that?
    Mr. Gelernt. Senator, I do not agree with that completely, 
but there are parts of DOJ's testimony with which we do agree, 
and I want to be very clear about the ACLU's position.
    The habeas review that resulted after 1996 and after the 
St. Cyr decision was the result of the 1996 court-stripping 
provisions and the gloss DOJ put on them and the Court's 
decision.
    What happened in St. Cyr is that DOJ took the position that 
there was no review for Mr. St. Cyr in any court, in the court 
of appeals or the district court. And just to be clear, because 
DOJ brought up our briefs in that case, we made it absolutely 
clear to the Supreme Court that we wanted one bite at the 
apple. We wanted one judicial determination. We were willing to 
take that in the court of appeals or in habeas corpus.
    The Supreme Court looked at it and said, well, the 1996 
court-stripping provisions have cut you out of the court of 
appeals; DOJ says that as well; the only thing left for you is 
habeas.
    Chairman Cornyn. Okay. Thank you for that clarification.
    Mr. Gelernt. And--
    Chairman Cornyn. I am sorry. I did not mean to cut you off.
    Mr. Gelernt. I just wanted to make one additional point.
    So what we are saying is that we want one judicial 
determination. That judicial determination can be in the court 
of appeals, but it must be a full judicial determination and 
there must be a safety valve, which, as I understand DOJ's 
witness to say, he understands the REAL ID Act not to have that 
safety valve at the moment. He quibbles with where we would put 
the safety valve, and that may be a discussion we can have. But 
he does not quibble with the fact that there is no safety 
valve.
    Chairman Cornyn. So your position--if I am clear and you 
please just tell me if I am wrong--is that as long as there is 
at least one opportunity for judicial review, the ACLU would be 
satisfied, whether that is in the court of appeals or by writ 
of habeas corpus.
    Mr. Gelernt. That is right, sir, as long as it was a full 
bite at the apple in the court of appeals.
    Chairman Cornyn. And that would be within Congress' power 
by writing a clear statute to provide that review. That would 
not be unconstitutional in your view. That would be within the 
protections provided under the Constitution.
    Mr. Gelernt. As long as it was a full bite at the apple in 
the court of appeals, one judicial determination, and we do not 
believe that you could eliminate habeas corpus as the safety 
valve. But it would not--and this is the critical point here, 
Senator, because I want to be clear, because it is a technical, 
difficult issue. Habeas corpus needs to be there, in our view, 
as the safety valve. It does not need to be the primary avenue 
of review.
    What happened after St. Cyr is that it became the primary 
avenue, so everyone went to habeas corpus. You can channel all 
review, criminal aliens and non-criminal aliens, to the court 
of appeals, and that is where it would go. The only thing we 
are saying habeas needs to be there for is as a safety valve 
for those rare cases in which someone cannot get into the court 
of appeals through no fault of their own. For example, an 
unscrupulous lawyer tells them they are going to file within 30 
days in the court of appeals, they do not do it, the Government 
does not give them notice of the decision. So those rare cases 
that cannot go to the court of appeals, but that will be seldom 
used, just like it was between 1961 and 1996. So it needs to be 
there as a backstop, as a safety valve, but for the most part, 
every case would go to the court of appeals, criminal and non-
criminal, and that is okay with us.
    Chairman Cornyn. Well, I understand what you would expect 
to be the course of legal review, judicial review, but what you 
are saying is you do not think under the Constitution that 
Congress can eliminate habeas corpus and provide the sole 
judicial review in the court of appeals. Is that right?
    Mr. Gelernt. Not as a backstop. I think--
    Chairman Cornyn. So, that sounds like two levels of review 
to me.
    Mr. Gelernt. No, because--let me be very clear, Mr. 
Chairman. The alien would not get to go to habeas corpus if 
they got to the court of appeals, and that means that almost 
every alien will never get to go to habeas corpus. They will 
not get to use habeas corpus like they do in a criminal case 
where they will get review somewhere else and then go to 
habeas.
    If they get review in the court of appeals and the court of 
appeals reviews their case, they cannot go to habeas after 
that. The only time they could use habeas is if for some reason 
that is not their fault they do not get in the court of 
appeals. For example, they never get notice of a BIA decision, 
so they do not file in the court of appeals within 30 days, and 
it was not their fault that they didn't get notice. Those rare 
cases where they did not get judicial review in the court of 
appeals, they could go to habeas. But the vast, vast majority 
of cases will go to the court of appeals. The court of appeals 
will review it. They cannot then go to habeas after that.
    Chairman Cornyn. Thank you.
    Senator Kyl?
    Chairman Kyl. Thank you, Senator Cornyn. I do appreciate 
that clarification.
    I gather that--and you heard the testimony about what at 
least I would characterize as an unacceptably high number of 
people with pretty horrible criminal backgrounds, at least as 
articulated by the earlier panel. And I gather it would be your 
view and ACLU's view that legislation from the Congress would 
be appropriate to try to prevent them from continuing to at 
least have the opportunity to prey on American citizens. Is 
that correct?
    Mr. Gelernt. Senator, there are proposals out there that we 
have seen that we believe are constitutionally deficient. There 
may be other proposals that the Congress wants to consider to 
make things more efficient, and we would be happy to give you 
our views on those.
    We are not opposing making a system more efficient, but 
what we are saying is that we cannot have a system where every 
immigrant does not get meaningful judicial review.
    Chairman Kyl. What I am trying--because ACLU has been an 
organization over the years that has at least portrayed itself 
as fighting for the little guy, making sure that people who are 
not otherwise protected can get protection in our system, 
certainly victims of crime frequently fall into that category. 
And I would think that ACLU would be very concerned about 
victims of crime. And to the extent that we have an ability 
here to prevent further victimization of people in our society 
by people who should be treated--or should be dealt with in our 
system, I guess what I am asking is not whether you would have 
any objection to it but whether you would support our trying to 
find a constitutional approach to accomplish the objective.
    Mr. Gelernt. Senator, we would support making the system 
more efficient as long as it was constitutionally sound and 
fair on both sides.
    Chairman Kyl. Thank you.
    Mr. Venturella, how would you characterize the security 
hazards to the United States of the catch-and-release practice? 
And how much does DHS know about those who are caught and 
released in terms of that kind of threat?
    Mr. Venturella. Well, I think very little is known about 
the individuals who the Border Patrol encounters. As Mr. Cerda 
outlined, there are record checks that are done, fingerprints 
are captured, but many of these individuals are not in any 
known databases. So I think that is a vulnerability.
    Chairman Kyl. That is a problem.
    Mr. Venturella. That is a problem.
    Chairman Kyl. With your background at INS and DHS, you 
probably have formed some views as to the likelihood that 
terrorists could cross our borders and be in the interior of 
the United States undetected, about our vulnerability to that 
kind of a threat. How would you characterize that?
    Mr. Venturella. Well, I think the vulnerability is high. 
Again, because individuals can come across our borders, can 
make many attempts and be successful on latter attempts, I 
think it is a real high exposure. And, again, you have to look 
at not the origin or the nationality of the individual, but the 
fact that somebody can get through your border and then blend 
into your society without very little difficulty is scary. And 
so regardless if it is a terrorist or not, individuals can come 
to the United States on many attempts, break in, and then live 
amongst ourselves. And that I think is difficult from an 
immigration enforcement perspective. You are trying to create 
deterrents, and without those in place, it is very 
disheartening for an individual charged with enforcing the 
laws.
    Chairman Kyl. Secretary Rumsfeld made the point--and it has 
been picked up by others in conjunction with the review of the 
9/11 tragedy--that sometimes we do not stop to think about the 
fact that we do not know what we do not know. And with respect 
to knowing who these maybe 11 million illegal immigrants 
residing in our country today, maybe more, it is hard to know 
how many of them might be involved in terrorist cells. And what 
you are saying right now is it is almost impossible to know 
because you do not know who has gotten across the border that 
we have not been able to apprehend. Is that correct?
    Mr. Venturella. That is correct.
    Chairman Kyl. And that is a scary thought, and this is a 
problem--speaking to something Senator Coburn was talking about 
earlier--both at the border itself and the interior, because as 
our first hearing noted we have to deal with these problems of 
border enforcement; but as this hearing has illustrated, we 
have got the result of that in the interior with inadequate 
resources to identify people, to detain them, and to deal with 
them appropriately under the law.
    And I would just state to everybody here, including the 
representatives of the ACLU, that all of us on this Committee 
certainly would hope that any--well, not just hope, but that we 
will ensure that any changes we make to the law will certainly 
be within the rule of law and be able to sustain constitutional 
challenges. That is what we are all about here, and we 
appreciate the testimony that both of you have provided.
    Thank you.
    Chairman Cornyn. Senator Sessions?
    Senator Sessions. Mr. Venturella, the Washington Times 
article I referred to earlier said the Federal authorities 
released 11 illegal aliens. ```The 11 passengers were processed 
and released,' said the spokesman for ICE. `It is up to them 
whether they come back.''' And a delegate from Fairfax County 
said, ``The officer does not have authority to detain them for 
a Federal offense. You get your hands on them, you have no 
authority to do anything.''
    Well, I think that is the perception, but it is not exactly 
correct, is it? They do have authority to detain someone in 
most instances unless it is prohibited by State law. Is that 
correct?
    Mr. Venturella. That is my understanding.
    Senator Sessions. All right. But what I am hearing from my 
police officers--and there are very few ICE agents in the 
State--is that nobody will come and pick them up if they were 
to detain them. They have been told, ``If you don't have more 
than 15,'' I was told several times, ``don't bother to call 
us.'' So they don't even call ICE. So that is the reality of 
what is happening out there.
    Would you walk through for the American people a little bit 
what happens now? Someone is apprehended by a Federal 
immigration officer, let's say, or referred to them by a State, 
and then they process them. Do they have to be released on 
bail? What happens after that?
    Mr. Venturella. Well, I think as Mr. Cerda pointed out, 
basically it is determined on a couple of things. One, are they 
subject to mandatory detention. In most cases, if an individual 
has not been convicted of a crime and has been encountered by 
local law enforcement, the chances are they are not subject to 
mandatory detention.
    Senator Sessions. Not?
    Mr. Venturella. Not subject to mandatory detention.
    Senator Sessions. Okay.
    Mr. Venturella. So they have discretion to release.
    Senator Sessions. All right. Now let me just follow up on 
that point. So if they were arrested for an armed robbery or a 
crime but had not been convicted, that would not be a mandatory 
detention under the immigration law. Is that right?
    Mr. Venturella. If there is no conviction. However, I think 
a circumstance like that would be rare. They would go through 
the State or local criminal justice process.
    Senator Sessions. The State may hold them on their own 
bail.
    Mr. Venturella. Correct.
    Senator Sessions. But let's say the offense was a little 
less severe. Let's say it is some sort of theft that routinely 
people would not be held without bail, but they were here 
illegally. As a matter of policy, would they still be released 
on the immigration charge?
    Mr. Venturella. They would be a high priority for release 
barring any other criminal convictions.
    Senator Sessions. Now, who issues the release? Do they sign 
a bond or bail, or how do they get released?
    Mr. Venturella. There are various forms of release.
    Senator Sessions. And who is it that they go before that 
issues this release order?
    Mr. Venturella. It is currently a field director for the 
detention and removal offices. They have the authority to 
release an individual, whether it be on a monetary bond, on 
their own recognizance, on orders of supervision. So there are 
various ways to release an individual from custody.
    Senator Sessions. And so that is how we get 400,000-plus 
that have been released in some form or fashion at some stage 
who did not show up, right?
    Mr. Venturella. That is one way. The other way that has not 
been talked about are individuals who may apply for a benefit, 
an immigration benefit. They get denied that benefit, and they 
are issued a notice to appear before an immigration judge.
    Sometimes enforcement officials never see these 
individuals. They never encounter these individuals. We talked 
about the lack of cases at NCIC. There is no biographic 
information on these individuals to enter into NCIC.
    So, yes, some of them we do arrest, and some of them are 
released by our immigration authorities. But some individuals 
get into the system that we never see.
    Senator Sessions. If you arrest somebody, a county judge or 
a U.S. Senator, for a DUI, they take your fingerprints and they 
get your identification before they let them go on bail. You do 
not do that for people that are detained who are not citizens?
    Mr. Venturella. People who are arrested by immigration 
authorities, yes, fingerprints are taken, all of the 
biometrics. But what I am saying is an individual can make a 
paper application for an immigration benefit, get denied that 
benefit--
    Senator Sessions. Do you know how many, what percentage of 
the 400,000 that is?
    Mr. Venturella. A significant number. I could not give you 
a percentage.
    Senator Sessions. So now if they are ordered to appear to 
something, what are they ordered to appear for? They are 
released on bail, and they are given an order to appear for 
some hearing. Who do they go before?
    Mr. Venturella. They go before an administrative 
immigration judge to contest the removal charges that have been 
lodged against them.
    Senator Sessions. And do you have trials often? Or they 
just do not show up? Or do they confess? Or what routinely 
happens?
    Mr. Venturella. Well as Mr. Cerda pointed out, 30 percent 
of the individuals do not show up for their hearing. Many 
people do show up for their proceedings, but then at the end, 
when there is a negative result, then they do not comply with 
that order.
    Senator Sessions. So that is when they--most show up for 
the trial or the hearing, but after they have been found here 
illegally and ordered deported, that is when they do not come 
back.
    Mr. Venturella. The compliance goes down.
    Senator Sessions. So if you find somebody here and they are 
ordered deported, they do not go that day? So you say go on out 
here back into the community and we will call you back when we 
want you to leave? Is that basically what it is?
    Mr. Venturella. I would not oversimplify that process, but 
certainly they are allowed an opportunity to remain out of 
custody while the immigration service or the immigration bureau 
arranges for their removal. However, if they are arrested and 
they have a removal order, then their detention is mandatory 
under the INA.
    Senator Sessions. So just an arrest after that would have a 
mandatory--
    Mr. Venturella. Yes, it would trigger that.
    Senator Sessions. I do not want to use up too much time. I 
was about to finish this line of questioning.
    And so the biggest problem then would appear to me to be 
people who abscond after they have had a hearing and after 
there has been an adverse finding that they are here illegally. 
And normally in the process of these kind of cases, it seems to 
me there would be a much higher likelihood and more appropriate 
for bail to be denied then than at the beginning. Would you 
agree?
    Mr. Venturella. I would agree, and those individuals are 
not subject to--or are not allowed to post bond in those cases. 
As I said, their detention would be mandatory.
    Senator Sessions. Excuse me. I am just saying on all these 
routine cases where they have been detained, released, asked to 
come for the hearing, they come to the hearing, and the judge 
finds that they did not commit a crime but they are in 
violation of immigration law and must be deported, it is after 
that that we have the highest rate of absconders?
    Mr. Venturella. That is correct. When I was the Acting 
Director, we had initiated a pilot where we placed immigration 
enforcement officers in the courtroom, so when there was a 
negative finding, we could take them into custody at that 
point. I don't know the results of that pilot since I have 
left.
    Senator Sessions. Did you have some numbers from that pilot 
program?
    Mr. Venturella. It was a very small pilot, but I would say 
that pointed to a success because individuals were taken into 
custody. Obviously, the absconder rate went down and the 
removal rate went up.
    Senator Sessions. Well, I do not want to go on too long, 
but I just would say I think that is probably the weak link 
here. Once you have had a finding that they are here illegally 
by an administrative officer after some sort of hearing, that 
is when we need to have some space to hold them temporarily 
until they can be deported. And the system needs to be--if they 
have got a defense that they can make, let them have it. If 
they do not have a defense, it ought to be quickly, because 
every day you detain them is a cost to the taxpayers. And the 
sooner the deal is done, the better for everybody, their 
families and everybody else.
    Thank you, Mr. Chairman.
    Chairman Cornyn. Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman.
    Mr. Gelernt, what does a ``full bite of the apple'' mean in 
terms of the appellate court? Does that mean full appellate 
court review or representative appellate court review?
    Mr. Gelernt. Senator, in our view what it means is that--
and this is where I think there is another disagreement with us 
and DOJ. It means that the alien will be able to raise claims 
that his deportation order violates the Constitution, so-called 
constitutional claims; that he can raise so-called pure 
questions of law, what exactly is the legal standard in the 
statute. And the third type of claim that he needs to be able 
to raise, under the St. Cyr analysis, at least, is the 
application of a lot of facts, so-called mixed questions of 
law. And let me just flesh that out a little bit because what 
we are really saying, I hear DOJ saying, is they would cut it 
off after the first two, at pure constitutional claims and pure 
questions of law. What that means is that the court in the 
first couple of cases would announce a legal standard. But then 
every time the administrative court applied that legal standard 
in a case and got it wrong, applied that standard wrong, there 
would be no judicial review whatsoever. So you would have 
torture cases, asylum cases, any number of cases where 
basically the administrative court could water down the statute 
to nothing so it did not even come close to reflecting 
Congressional will and there would be no review. And St. Cyr 
made absolutely clear that it has to be the interpretation or 
application of a statute that has been reviewable historically 
in habeas. So that is what we are basically saying. So it may 
seem like a technical point, but I think it practice it will be 
very important.
    The other thing I would just stress about it is that if the 
DOJ is going to try to slice it up like this and take that 
position, the line between pure questions of law and mixed 
questions of law is not a bright one, it is blurry. It is going 
to engender years and years of litigation on that ancillary 
point and prevent the courts from simply reviewing deportation 
orders that may, in fact, be sound and they could rid of the 
case quicker. Instead, we are going to have another St. Cyr 
situation. We are going to have 5 years of unnecessary 
litigation. And I would just ask DOJ why they are insisting on 
the word ``pure'' qualifying questions of law in the REAL ID 
Act.
    Senator Coburn. Well, they are trying to keep you busy on 
that so we can do something--
    Mr. Gelernt. Right, right.
    Senator Coburn. I am sure that is the case.
    Mr. Venturella, first of all, thank you for your years of 
service to our country. I am going to ask you the same question 
I asked the previous panel. You know, you have got to feel like 
Bill Murray when you work over there when every day is the same 
day because no matter what you--if you did your job perfectly, 
without a change in the border, you would never lessen the 
number, because as soon as you deport them they come back, even 
though they are convicted. The only ones that do not come back 
are the ones we end up incarcerating, correct?
    Mr. Venturella. Correct.
    Senator Coburn. That we do not deport. And I would just 
say, you know, during your time, what was your experience in 
terms of the feedback? You know, this is not something we 
cannot do. It is something we have chosen politically not to 
do. What was the response you got?
    Mr. Venturella. Well, it was very frustrating. Again, as I 
point out in my testimony, you did not have people looking at 
this as continuum. It is a process. It is apprehension. It is 
the hearing process. It is the removal process.
    But they did not look at it that way. They looked at 
pieces. Okay, let's put more people on the border, but not give 
the Department of Justice enough attorneys or us in Detention 
and Removal enough detention space.
    And then at the tail end of it, where was the leverage to 
remove these people? Where was the will to remove these people 
from the United States?
    So, yes, as I pointed out, Border Patrol agents would 
arrest several people that day, just to see in that afternoon 
sending them to the bus stop in Laredo and allowing them to go 
north and elsewhere, it is frustrating.
    Senator Coburn. You know, it is interesting. Being from 
Oklahoma, a relatively small State, the compassion of the 
people of America is great because we all recognize we at one 
time, other than Native Americans in Oklahoma, who are 
foreigners to Oklahoma because they came from the East Coast, 
but we all were immigrants. And the compassion out there is 
tremendous. What there is no compassion for is the ineptitude 
of the Federal Government now to recognize the sequential 
order, that you have to fix all parts of this. But the first 
part you have to fix is to put the emphasis on where it is 
coming from.
    You know, everybody recognizes the contributions of the 
Hispanics that are coming to this country today. They are 
making wonderful contributions. But that does not displace the 
fact that we are undermining our own legal system when we fail 
to enforce the last. I don't know how you did what you did for 
the number of years that you did it, and I look forward to 
visiting you on the side just to get some insight.
    Mr. Chairman, thank you.
    Chairman Cornyn. Thank you, Senator Coburn.
    Mr. Venturella, I want to follow up a little bit on what 
Senator Sessions was asking. I believe he referred to the weak 
link after people have their hearings, then 85 percent do not 
show up after that. Did I understand that correctly?
    Mr. Venturella. Eighty-five percent fail to comply with a 
removal order.
    Chairman Cornyn. A removal order, okay. Well, we have 
talked about the 30-percent figure of people who do not show up 
for their deportation hearing in the first place, and I know it 
gets a little confusing because then we say once you had a 
hearing, 85 percent do not comply with that. But, as I tried to 
indicate earlier, there is a lot of variability; that that 30 
percent who do not show up for the first hearing, there is a 
lot of variation in the country. I mentioned that in Harlingen 
approximately 85 percent do not even show up for the first 
hearing. So, we never get around to being part of that group 
that does not show up for the second hearing.
    Senator Sessions. I think that would be more than 100 
percent.
    Chairman Cornyn. Surely it is not more than 100 percent, 
but I am not smart enough to figure out what the percentage is.
    Anyway, I think here again, sort of responding to Senator 
Coburn's frustration, the purpose of this hearing I think is in 
large way to look at what the problem is, and hopefully in 
subsequent hearings we will look at some solutions.
    But you talked about a holistic enforcement strategy, and 
in your opinion, what are some of the factors that need to be 
enhanced to ensure that we are not perpetuating a revolving 
door policy within the Department of Homeland Security's 
detention standards or the way we handle deportation after 
their final orders, they have basically exhausted all of their 
judicial review?
    Mr. Venturella. Well, I think first and foremost you have 
to have a strategy. You have to have an objective and say this 
is what we want to do. And that has not been clear. In my 18 
years as a Federal law enforcement officer, I did not know what 
the Nation's immigration policy was, in particular in 
enforcement. So I think you have to start from the beginning. 
What is your strategy? What is your objective? And then execute 
that.
    But, again, we do need to look at this holistically. We 
talk about securing our borders, but we also look beyond our 
borders and how can our relationships with other countries that 
are significant transit points, how can we improve that we 
lessen the flow? Because people just do not come across our 
borders. They come through our ports of entry at airports and 
seaports as well. So we do need to expand beyond just our 
borders. Then, of course, the resources provided to the Border 
Patrol, provided to our litigation assets, and to our removal 
assets. But we do need to look at it holistically, and it 
hasn't. Only bits and pieces have been resourced, while other 
programs in other areas or departments have suffered. And now 
you see 400,000 absconders, now you see a million people going 
through the immigration process, and you see hundreds of people 
being released every day because it is out of balance.
    Chairman Cornyn. Well, I appreciate that comment, and I 
certainly would agree with you that that is something that has 
been missing that hopefully we will achieve in the not-too-
distant future, and that relates to enforcement.
    But I have also been struck, in looking at immigration, by 
how much there are other issues that are intertwined in that. 
For example, the economy of Mexico or Central America, if 
people could find good-paying jobs there, it just stands to 
reason that they would find less need, there would be less 
desire to leave their native country and to come to the United 
States and find that job so they can provide for their family. 
And, I think we all understand that impulse, and, frankly, that 
is something I think we need to address as well, perhaps even 
by our trade policies.
    I remember in Guatemala at the Ambassador's residence we 
were talking about the Central American Free Trade Agreement, 
and one gentleman from Guatemala said, ``We want CAFTA to pass 
because we want to be able to have markets in the United States 
for our goods and services that we have that come from here.'' 
He said, ``We want to export goods and services and not 
people.'' That resonated with me, and it really touched on the 
issue that we are dealing with here as well.
    So, I certainly agree we need that coherent and holistic 
enforcement strategy, but we also need to look at the economic 
issues, including international trade issues. It just seems 
like there is hardly an issue--certainly our international 
relationships with other countries--that this does not touch 
and that enforcement is just a part of it, but certainly not 
the end-all, be-all.
    Let me ask you, Mr. Venturella, I had the experience 
recently of flying with a Border Patrol agent in Laredo, Texas, 
down the Rio Grande River. You could clearly see obviously both 
sides of the river, Mexico and Texas. And I was impressed as we 
flew over the international bridges how orderly and relatively 
smoothly we were processing people and goods that were 
attempting to comply with our laws, how well that was going. 
But I was also rather struck by what was happening between the 
bridges. And there were cameras on large columns. There were 
occasional Border Patrol agents. I asked this helicopter pilot, 
this Border Patrol agent, I said, ``What do you need that you 
do not have in order to do the job?'' And he expressed some of 
the frustration that you did and saying that, ``Well, because 
there is so much going on in the Arizona border, we have a lot 
of our people and our equipment being shipped over to Arizona, 
leaving us even less well equipped and outmanned in terms of 
what we are able to do here.''
    In your 18 years of experience in enforcing immigration 
laws, what do you think we need to do to fully equip our agents 
so they can do the job that we ask them to do every day and to 
give them a reasonable chance of success?
    Mr. Venturella. Well, it is hard for me to speak for the 
Border Patrol since I was never a Border Patrol agent. But in 
the capacity that I served and seeing the consequences of not 
resourcing your apprehension assets as well as your removal 
assets, I would think one of the most important things to look 
at is ensuring that you have enough detention resources. The 
reason why people come across repeatedly is because there is no 
consequence for that action. They get through. If they get 
arrested, chances are they will get released if they are not a 
Mexican national. DHS has some priorities on specific 
nationalities, but others, if there is no negative information 
contained in databases, which nine times out of ten there is 
not, they are released.
    And so, therefore, it is worth doing this two, three, four, 
five times until I am able to be released into the United 
States, and then I can live in society, I can get a job, and 
not have to worry about the consequences of a removal order or 
consequences of immigration officers coming after me.
    Again, it is the needle in the haystack. It is just 
overwhelming. And the frustration that officers feel every day 
is something I felt very strongly at the end of my career.
    Chairman Cornyn. Well, I know we could go on for a long 
time because this is a very interesting and important subject. 
But, we are not going to. We are going to bring it to a close 
here. I know Senator Sessions and I and others have some 
important meetings on other matters before the Judiciary 
Committee.
    Senator Leahy has provided a statement that, of course, 
will be made part of the record. There is also a statement from 
MALDEF, and without objection, those will be made part of the 
record.
    It may be that we will think of some other questions, or 
more likely our staff will help us think of some questions we 
will want to submit to you in writing. So, we would ask for you 
to receive those and respond. We will try not to burden you too 
much with that. But, on behalf of both Subcommittees, I would 
like to thank these two witnesses and our other two witnesses 
for their time and testimony.
    We will leave the record open until 5:00 p.m. next 
Thursday, April the 21st, for members to submit additional 
documents for the record and to ask questions in writing of any 
of the panelists.
    And with that, this--
    Senator Sessions. Mr. Chairman?
    Chairman Cornyn. Senator Sessions.
    Senator Sessions. I would just congratulate you on having 
this hearing. You are a former Supreme Court Justice, Attorney 
General in Texas. You are committed to the rule of law, and I 
know this is frustrating to you, as it is to me as a 
prosecutor. But you also chair our Subcommittee on Immigration. 
You are looking at the entire panoply of issues. You know the 
human factors that are going on out there with families that 
are here and have been here for long periods of time, the 
economic issues that are at stake and all the complexities. And 
I thank you for your leadership. I think if people would listen 
to what you are saying and where you are suggesting we head, I 
think they would be better off in a lot of the directions that 
are being considered now.
    As a matter of fact, as we go further in this debate--and I 
suspect we will--I believe the suggestions you are making are 
going to be more and more relied upon.
    I would thank our witnesses. We are a Nation of immigrants. 
My remarks dealt with enforcement today because that is what 
this hearing was about, because I was a prosecutor myself in 
the Federal Government for a long time, and it does pain me to 
see us be so dysfunctional.
    On a positive note, my mental vision is it is like we jump 
across a 10-foot gap and we go 9 feet and we fall in the hole. 
So many things we do--Mr. Venturella would, I think, probably 
agree--if we do just a little better and go a little further, 
we would close that gap, deal with that problem, and then the 
next one and the next one and the next one. And I will say 
this: If we do better on the border, better inside the border, 
not with huge amounts of extra effort but just some better 
leadership and direction and some more money, we can make more 
progress than people think. Would you agree, Mr. Venturella?
    Mr. Venturella. I would agree 100 percent.
    Senator Sessions. This is not a hopeless deal if we all--
and we have better laws to begin with on who should come in and 
in what circumstances.
    So thank you for your leadership.
    Chairman Cornyn. Well, thank you, Senator Sessions.
    Ladies and gentlemen, with that, this hearing is adjourned.
    [Whereupon, at 4:44 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Note: The responses of Mr. Cerda to questions submitted by 
Senators Cornyn, Kennedy, and Kyl were not available at the 
time of printing.]
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