[Senate Hearing 109-1018]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 109-1018
 
  THE SOUTHERN BORDER IN CRISIS: RESOURCES AND STRATEGIES TO IMPROVE 
                           NATIONAL SECURITY
=======================================================================


                             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

                               __________

                              JUNE 7, 2005

                               __________

                          Serial No. J-109-24

                               __________

         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                    HERB 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                    HERB 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

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     3
    prepared statement...........................................    57
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................    59
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     1
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    70
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    71
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    21

                               WITNESSES

Aguilar, David, Chief, Office of Border Patrol, Customs and 
  Border Protection, Department of Homeland Security, Washington, 
  D.C............................................................     5
Lee, Wesley, Acting Director of Detention and Removal Operations, 
  Immigration and Customs Enforcement, Department of Homeland 
  Security, Washington, D.C......................................     7
Verdery, C. Stewart, Jr., Principal, Mehlman Vogel Castagnetti, 
  Inc., and Adjunct Fellow, Center for Strategic and 
  International Studies, Washington, D.C.........................     9

                         QUESTIONS AND ANSWERS

Responses of David Aguilar to questions submitted by Senator 
  Sessions.......................................................    40
(Note: Responses to questions submitted to Wesley Lee by Senator 
  Sessions were not available at the time of printing.)

                       SUBMISSIONS FOR THE RECORD

Aguilar, David, Chief, Office of Border Patrol, Customs and 
  Border Protection, Department of Homeland Security, Washington, 
  D.C, prepared statement........................................    50
Lee, Wesley, Acting Director of Detention and Removal Operations, 
  Immigration and Customs Enforcement, Department of Homeland 
  Security, Washington, D.C., prepared statement.................    72
Verdery, C. Stewart, Jr., Principal, Mehlman Vogel Castagnetti, 
  Inc., and Adjunct Fellow, Center for Strategic and 
  International Studies, Washington, D.C., prepared statement....    78


  THE SOUTHERN BORDER IN CRISIS: RESOURCES AND STRATEGIES TO IMPROVE 
                           NATIONAL SECURITY

                              ----------                              


                         TUESDAY, JUNE 7, 2005 

                              United States Senate,
        Subcommittee on Immigration, Border Security and 
            Citizenship, and the Subcommittee on Terrorism, 
            Technology and Homeland Security, of the 
            Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittees met jointly, pursuant to notice, at 2:30 
p.m., in Room SD-226, Dirksen Senate Office Building, Hon. Jon 
Kyl (Chairman of the Subcommittee on Terrorism, Technology and 
Homeland Security) presiding.
    Present: Senators Kyl, Cornyn, and Sessions.

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

    Chairman Kyl. Good afternoon, ladies and gentlemen. This 
hearing of the Judiciary Committee Subcommittee on--well, we 
have two Subcommittees, one on Terrorism, Technology and 
Homeland Security, which I chair, and on Immigration, Border 
Security and Citizenship, which Senator Cornyn chairs.
    As has been our practice of late, we are going to be 
conducting this hearing jointly with both of these 
Subcommittees since the subject matter of the hearing, ``The 
Southern Border in Crisis: Resources and Strategies to Improve 
National Security,'' clearly falls within the ambit of both of 
our concerns. This hearing continues, as I say, a series of 
hearings that we both conducted on this general subject.
    We are going to be talking today specifically about the 
widespread concern that most of us share about persons who 
threaten our national security and their ability to take 
advantage of the chaotic condition at our border with Mexico 
and enter the United States and stay in the United States 
illegally.
    The hearing will also examine what resources the Department 
of Homeland Security may need to bring the Southern border 
under control so that terrorists and criminals are prevented 
from coming here and staying here.
    Let me say at the outset that Senator Feinstein, who is the 
Ranking Member of the Terrorism Subcommittee, which I chair, is 
on the Intelligence Committee. They have a hearing that 
absolutely conflicted with this today. We tried everything to 
work out a way to resolve it. If at all possible, she will be 
here. But if she cannot be here, of course, her statement will 
be put in the record as well as any questions that she may have 
for the witnesses.
    As many of you know who have followed my Subcommittee over 
the years--I should say our Subcommittee, because Senator 
Feinstein and I have worked in a really great bipartisan way on 
these issues and others, as well, and the fact that she is not 
here today, I know is not an expression of a lack of interest 
on her part but simply the fact that, as frequently is the 
case, we have to be in about four places all at the same time. 
So I know that she will continue to work with me and I am sure 
that Senator Kennedy will do the same with Senator Cornyn.
    I am very pleased that we are going to combine two panels 
into one here today, with the permission of the panelists, and 
I think that works very well because of who is here. Our 
distinguished witnesses include David Aguilar, who has been 
before us, I think at least twice, offering valuable insights 
about the border. He is the Chief of the U.S. Border Patrol and 
we appreciate, Chief, your being with us here again today.
    Wesley J. Lee, who is the Acting Director of the Office of 
Detention and Removal for the U.S. Immigration and Customs 
Enforcement, all of these acronyms, we will probably just say 
ICE from here on in, but that is, of course, within the 
Department of Homeland Security and we are very appreciative of 
your being here. Congratulations on your assignment to that 
post, Mr. Lee.
    And Stewart Verdery, who is going to join this panel 
instead of being on a panel all by himself, served with 
distinction as the Assistant Secretary for Policy and Planning 
at DHS's Border and Transportation Security, is now a principal 
at Mehlman Vogel Castagnetti, Inc., and will be able to also 
offer insights into our subject today, and we appreciate your 
written statement, Mr. Verdery. It is a very thoughtful piece 
and I appreciate that.
    Just to make a couple of preliminary comments here that 
help to set the stage for what we are talking about today, 
those of us who represent States along the border have long 
been concerned not only with the other aspects of the people 
who cross our border illegally, but also the potential for 
terrorists to smuggle themselves across the border. And this is 
a concern that has been shared by senior Department officials.
    For example, on February 16 of this year, the former DHS 
Deputy Secretary Loy advised the Senate Intelligence Committee 
that, and I am quoting now, ``that our recent information from 
ongoing investigations, detentions, and emerging threat streams 
strongly suggests that al Qaeda has considered using the 
Southwest border to infiltrate the United States. Several al 
Qaeda leaders believe operatives can pay their way into the 
country through Mexico and also believe that illegal entry is 
more advantageous than legal entry for operational security 
reasons.''
    Secretary of State Condoleezza Rice later commented that, 
and I am quoting again, ``we have, from time to time, had 
reports about al Qaeda trying to use our Southern border. It is 
no secret that al Qaeda will try to get into this country by 
any means they possibly can. That is how they managed to do it 
before, and they will do everything they can to cross the 
borders.''
    I would note also that it is no longer possible for us to 
say that we are not aware of any situation in which a terrorist 
has crossed the Southern border because we now are.
    And despite the concerns that have been expressed here and 
by many of us over the past several months, our government, we 
contend, has still not committed the resources necessary to 
secure the border, a fundamental task, of course, or 
responsibility of the United States Government. And as a 
result, our Southern border is in chaos, thousands of illegal 
aliens crossing into the United States each week.
    Many of these aliens, incidentally, are not from Mexico, 
but they come from countries all over the world, usually flying 
into Mexico and then sneaking across the border on front. Many 
don't have authentic identity documents. Many don't carry 
documents at all. We don't even know who many of them are. We 
do not know whether they intend to simply find work or whether 
they plan to engage in acts of terror in the United States, or 
are here to commit crimes in our society.
    This hearing is devoted in part to exploring what 
strategies DHS has in place to deal with these third-country 
nationals who are referred to as the ``other than Mexicans,'' 
or OTMs. It is my understanding that the Department continues 
to engage in the practice of releasing OTMs into the United 
States because it lacks the detention facilities to hold them, 
and we need to know precisely what resources DHS needs to bring 
an end to that practice, which we believe is a great hazard to 
our national security and public safety.
    And we want to know what, if anything, the Mexican 
government is doing to assist the United States in deterring 
the flow of these OTMs across our common border. I think many 
Americans have been surprised by the negative quality of recent 
statements of highly placed Mexican officials who appear at 
least to me to disparage our concerns about unchecked 
immigration at the border.
    These and many other issues, including the expedited 
removal procedures and other resource issues, we will be 
getting into in this hearing, and as I say, we have an 
excellent panel to provide information to us in that regard.
    Before we turn to the panel, let me turn to my Co-Chairman, 
Senator Cornyn from Texas.

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

    Chairman Cornyn. Thank you, Senator Kyl, and I appreciate 
the opportunity to Co-Chair another one of these important 
series of hearings that we have been having leading to what I 
know we both hope will be comprehensive immigration reform in 
this Congress.
    Senator Kyl and I have been working, along with our 
colleagues, the Ranking Member of the Immigration Subcommittee, 
Senator Kennedy, the Ranking Member of the Terrorism 
Subcommittee, Senator Feinstein, to try to develop information 
that we think will be useful, indeed essential, for members of 
the Senate to have, of this Congress to have, as we try to 
attack these problems.
    We are, I think it is fair to say, conducting a top-to-
bottom, or maybe I should say bottom-to-top, review of the 
nation's border security and enforcement efforts. That review 
has provided important information that we have already used to 
draft at least Title I of the comprehensive immigration reform 
bill that Senator Kyl and I will coauthor and will drop in its 
entirety later this month. I look forward to continuing the 
work in this area as we move forward toward crafting that 
comprehensive immigration reform bill.
    As we have said before and we will say again, our 
immigration and border security system is badly broken and has 
suffered from years of neglect. This leaves our borders 
unprotected, threatens our national security, and makes a 
mockery of the rule of law. We cannot continue to ignore our 
border security or at least fail to provide the resources 
necessary to let our hard-working men and women who are given 
that assignment and who have graciously accepted it to be 
successful, and it is going to take additional resources and 
additional commitment by the Congress to give them what they 
need in order to do the job we have asked them to do.
    Today's hearing will illustrate the national security 
threat posed by aliens from countries other than Mexico, as 
Senator Kyl has said. In my State, which has 65 percent of our 
nation's common border with Mexico, we have seen a tremendous 
increase in the number of arrests of other-than-Mexican aliens. 
In fact, a majority of this year's OTM apprehensions have 
occurred in the Texas sectors. This year, the Border Patrol has 
apprehended approximately 96,000 OTMs. Ninety percent of these 
arrests have occurred at the Southwest border. And of the 
Southwest border arrests, more than 76,000 have occurred in the 
Texas sectors.
    To make matters worse, as we have noted, because of lack of 
adequate detention facilities, the vast majority of these OTMs 
are simply given a notice to appear and released into our 
country. Obviously, the majority of them melt into the 
landscape and are never heard from again. Whether it is in 
Texas, Arizona, or California, or anywhere else in this 
country, this state of affairs is unacceptable and needs to 
change.
    Senator Kyl has already mentioned the testimony of Admiral 
Loy, the Deputy Homeland Security Secretary, suggesting that 
the same routes available for economic immigrants are available 
for those who might want to come here to do us harm. And I will 
say from my travels on this most recent recess to the Balkans 
Peninsula, we have heard from our intelligence and national 
security personnel stationed in other parts of the world that 
they are very much concerned about the ability of aliens to 
transit, for example, in Turkey, to get into places like 
Greece, to then transit into the European Union, and then to 
smuggle themselves, with the aid of professional smugglers, 
into Mexico and thence into the United States. This is not just 
some pipe dream. This is not some fantasy. This is reality. 
That potential is there, and, in fact, those routes of travel 
are available for people who do want to do us harm.
    And it is also important, in conclusion, to remember that 
the people who are engaged in human smuggling do so for money, 
the same reason that people who smuggle illegal drugs, who 
traffick in persons, and who would provide a means of ingress 
into this country for terrorists, they do so for money. They 
are, in essence, criminals who are looking to make a profit.
    So the same way that people who want to come here to work 
come into the country illegally, that avenue is available for 
people who want to come here to do us harm. We simply need to 
get control of the situation, and that is the goal of our 
hearings and of the legislation that Senator Kyl and I will 
file later on this month.
    But I want to say thanks again to the panel, again to Chief 
Aguilar for his repeat performance here, and Mr. Lee and Mr. 
Verdery. Thank you for being here with us.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Chairman Kyl. Thank you, Senator Cornyn.
    Let me again thank our administration witnesses for 
agreeing to have a former administration witness on the panel 
with you. I know you all have worked together and I appreciate 
that spirit of cooperation.
    What I would like to do is ask each of you to speak, and if 
you could limit your comments to about five minutes, we would 
appreciate that, and then we will simply begin our round of 
questioning. Your full statements, of course, will be put in 
the record.
    For the audience, let me again introduce our panelists. 
David Aguilar is Chief of the Border Patrol, U.S. Customs and 
Border Protection of the Department of Homeland Security. And, 
by the way, I might say, the previous Tucson Sector Chief in 
the State of Arizona.
    Wesley Lee is Acting Director of Detention and Removal 
Operations for the U.S. Immigration and Customs Enforcement, 
Department of Homeland Security.
    And C. Stewart Verdery, Jr., is a principal of Mehlman 
Vogel Castagnetti, Inc., and an Adjunct Fellow of the Center 
for Strategic and International Studies here in Washington, 
D.C., and former administration official, as I indicated 
earlier.
    With that, Chief Aguilar, the floor is yours.

  STATEMENT OF DAVID AGUILAR, CHIEF, OFFICE OF BORDER PATROL, 
CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY, 
                        WASHINGTON, D.C.

    Mr. Aguilar. Thank you, Senator. Good afternoon, Chairman 
Kyl and Chairman Cornyn. I am extremely pleased to be here this 
afternoon to give testimony on Border Patrol operations and the 
detention of other-than-Mexican aliens encountered, detained, 
and arrested by the United States Border Patrol along our 
nation's borders.
    As you know, the Border Patrol operates exclusively between 
the ports of entry, but very importantly, also conducts what we 
refer to as in-depth enforcement operations in direct support 
of border enforcement as it relates to securing our nation's 
borders. Our agents conduct operations along our nation's 
borders with Mexico and Canada, over 6,000 miles of our 
Northern and Southern border, coastal, and Florida Gulf Coast 
area also, along with Puerto Rico.
    Our recently revised Border Patrol National Strategy has 
six basic core elements to it: Securing the right combination 
of personnel, technology, and infrastructure; improving 
mobility and rapid response to quickly counter organized crime 
organization shifts gives us the ability to act on tactical 
intelligence; deploying defense in depth that makes full use of 
interior checkpoints and enforcement operations designed to 
deny illegal migration; partnerships--partnerships with other 
law enforcement organizations to achieve our goals and 
objectives; improving border awareness and intelligence; and 
strengthening the headquarters command structure.
    The revised national strategy provides the road map for our 
organization's continued expansion efforts in bringing 
operational control to our nation's borders. Our centralized 
chain of command provides for a strategic application of 
existing and, very importantly, future resources and provides 
for the focused and long-term planning and evolution of our 
strategy based on risk management, threats, and 
vulnerabilities.
    Our ability to focus efforts and resources magnifies the 
effect of our resources. An excellent example of this is the 
Arizona Border Control Initiative Phase 2, currently underway 
in our Tucson and Yuma sectors in Arizona. Because of our 
strategy, we were able to quickly identify and mobilize the 
resources that were necessary that we felt to apply as quickly 
as possible in Arizona. Two hundred Border Patrol agents were 
temporarily detailed and are still there. We literally 
doubled--more than doubled--the aerial platforms that were 
necessary to conduct patrol operations in Arizona to 54. We are 
currently in the process of permanently reassigning over 155 
Border Patrol agents into Tucson and the Yuma sectors. Today as 
we speak, during the ABCI time period, arrests are down by 21 
percent. Air support, the number of flights are up by 250 
percent--or 200 percent, excuse me, as compared to the year 
before. Flight hours are up by over 250 percent.
    Defense in depth, transportation hub, something that is 
absolutely critical to our operations, Sky Harbor Airport in 
Phoenix. We currently have control of that very important 
transportation hub to the smuggling organizations. As we speak, 
Senator, we apprehend less than one, on an average, less than 
one illegal alien at Phoenix Sky Harbor on a daily basis. This 
is not the picture that used to be there over two years ago. We 
have expanded our operations into some of the Greyhound Bus 
stations, Amtrak, and things of this nature, where our arrests 
in the last two months have only numbered 1,000. Now, we will 
continue to work on that to get those numbers down.
    The Tohono O'odom Nation, arrests are down during the ABCI 
time period by nine percent. Although this number is not 
significant, the following number is. Sixty-one percent is the 
number that calls from other agencies are down within the 
Tohono O'odom Nation, to include the police department of the 
Tohono O'odom Nation, based on illegal immigration calls. That 
is significant.
    Nationwide, fiscal year to date, the Border Patrol as a 
whole has apprehended over 800,000 illegal aliens, interdicted 
886,000 pounds of marijuana, and over 7,400 pounds of cocaine. 
We have also arrested over 98,000 other than Mexicans. And as 
of September of last year, we have arrested 94,748 criminal 
aliens, identifying them by using the IDENT/IAFIS fully 
integrated system that has worked out tremendously for us.
    Our objective is nothing less than a border under 
operational control. We recognize that the challenges that lie 
ahead and the need for a comprehensive enforcement approach 
needs to be comprehensive. Our national strategy gives us a 
means by which to achieve our ambitious goal.
    CBP Border Patrol is tasked with a very complex, sensitive, 
and difficult job. The challenge is great, but it is also one 
that our men and women face every day with vigilance, 
dedication, and integrity as we work to strengthen national 
security, protect our nation's borders, and our citizens.
    The Border Patrol Customs and Border Protection and its men 
and women are committed to assertively and aggressively expand 
our operations and continue to build on our nation's security. 
I thank the Subcommittee and look forward to any questions that 
you might have of me.
    Chairman Kyl. Thank you, Chief Aguilar. You were right on 
the button here.
    Could I just ask you to reiterate three numbers, and give 
them to me from the time period. I am not sure I caught the 
time period. You said that there had been 98,000 OTMs 
apprehended since some--
    Mr. Aguilar. This is the fiscal year, sir.
    Chairman Kyl. During this fiscal year?
    Mr. Aguilar. Yes, sir.
    Chairman Kyl. Okay. And over 800,000 illegal immigrants 
total apprehended this fiscal year?
    Mr. Aguilar. Yes, sir, 812,000.
    Chairman Kyl. Eight-hundred-and-twelve thousand. And the 
number of wanted criminals?
    Mr. Aguilar. Ninety-four-thousand-seven-hundred-and-forty-
eight.
    Chairman Kyl. Ninety-four-thousand-seven-hundred-and-forty-
eight. Those are all this fiscal year?
    Mr. Aguilar. Yes, sir.
    Chairman Kyl. Great.
    Mr. Aguilar. That last figure is from September 1 of 2004, 
so it is a month--
    Chairman Kyl. So it is a month more.
    Mr. Aguilar. Yes.
    Chairman Kyl. Okay, great. Thank you very much.
    [The prepared statement of Mr. Aguilar appears as a 
submission for the record.]
    Chairman Kyl. Mr. Lee?

   STATEMENT OF WESLEY LEE, ACTING DIRECTOR OF DETENTION AND 
   REMOVAL OPERATIONS, IMMIGRATION AND CUSTOMS ENFORCEMENT, 
       DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Mr. Lee. Good afternoon, Chairman Kyl, Chairman Cornyn, and 
distinguished members of the Committee. My name is Wesley Lee 
and I am Acting Director of the Office of Detention and Removal 
Operations for the Immigration and Customs Enforcement. It is 
my privilege to appear before you today to discuss detention 
and removal operations in the enforcement mission.
    Detention and Removal Operations' core mission is the 
apprehension, detention, and removal of removable aliens and 
the management of a non-detained docket. DRO employs a number 
of tools to accomplish this mission. One of these tools, 
expedited removal, allows the Department of Homeland Security 
to quickly remove certain aliens who are either seeking entry 
or who have recently entered the U.S. illegally while ensuring 
appropriate protection for aliens with a well-founded fear of 
persecution.
    But first, I would like to briefly share with you some 
benchmark numbers that show the direction in which we are 
moving and examples of initiatives we have implemented to 
achieve better enforcement results.
    In fiscal year 2004, the Office of Detention and Removal 
Operations reached record levels in terms of removals, fugitive 
alien apprehensions, and management of detention bed space. 
Detention and Removal officers removed 160,000 aliens from the 
United States, including 85,000 aliens with criminal records. 
During fiscal year 2004, as of April 30, 2005, DRO removed over 
75,500 aliens, including 45,000 criminal aliens. In addition, 
during 2004, ICE had 16 fugitive operations teams deployed 
across the country. These teams apprehended 11,000 fugitive 
aliens with final orders of removal, a 62 percent increase from 
the prior fiscal year. The year-to-date statistics for 2005 
include apprehending over 7,784 fugitive aliens.
    On September 13, 2004, the Department of Homeland Security 
began implementing expedited removal on a limited basis between 
ports of entry. This expanded expedited removal applies to 
aliens who have no valid entry document or who have fraudulent 
travel documents who are apprehended within 100 air miles of 
the border and who cannot demonstrate that they have been 
present in the United States for over 14 days following their 
illegals entry.
    Expanded expedited removal has primarily been directed 
toward third-country nationals, nationals of a country other 
than Mexico and Canada, and to certain Mexican and Canadian 
nationals with criminal histories, involvement in alien 
smuggling, or a history of repeat immigration violations. The 
expanded ER authority has been implemented in the Tucson and 
Laredo Border Patrol sectors. As of May 16, 2005, 8,452 aliens 
had been placed in such ER proceedings, with 6,792 being 
removed.
    The use of expedited removal orders, which prohibits 
reentry for a period of five years, can deter unlawful entry, 
and it also makes it possible to pursue criminal convictions 
against those aliens who continue to enter the United States in 
violation of the law.
    The most important benefit of the expedited removal process 
is that it can accelerate the process of the inadmissible 
aliens because aliens in ER are generally not entitled to a 
hearing before an immigration judge nor are the aliens eligible 
for release on bond. On average, the detention time for third-
country naturals in regular INA 240 removal proceedings takes 
89 days, versus the ER average of 26 days for those third-
country nationals not claiming credible fear. The overall 
length of stay for all expanded expedited removal cases is 32 
days.
    Expedited removal and detention can be excellent tools to 
deter illegal migration, but they must be carefully managed 
with the appropriate human resources and transportation 
requirements. Mandatory detention ensures measurable progress 
toward a 100 percent removal rate. Deterring future entries and 
accelerating removal of aliens ordered removed will enhance 
DHS's ability to secure the border and to focus its resources 
on threats to public safety and national security.
    Detention and Removal fully supports the principle of 
expedited removal, as it can deter foreign nationals from 
illegally entering the United States, ensures an expeditious 
removal of those entering the United States illegally, and 
reduces the growth of the absconder population. Expansion of 
the expedited removal program across the entire Southwest 
border would require a reallocation of DRO resources, including 
bed space, removal costs, and personnel to manage the removal 
of the increased number of aliens. The DHS immigration 
enforcement mission--as the DHS immigration enforcement mission 
evolves, it is imperative that DRO is positioned to assure 
success.
    In conclusion, the ability to detain aliens while 
inadmissibility and identity is determined as well as to 
quickly remove aliens without protection claims is a necessity 
for national security and public safety. By aggressively 
enforcing our immigration laws, we seek to deter criminal and 
terrorist organizations who threaten our way of life, and we 
seek to strengthen the legal immigration process for worthy 
applicants.
    I would like to thank you, Mr. Chairman and members of the 
Committee, for the opportunity to testify today on behalf of 
the men and women of the Detention Removal Operations program. 
I look forward to answering any questions you may have.
    Chairman Kyl. Thank you very much, Mr. Lee.
    [The prepared statement of Mr. Lee appears as a submission 
for the record.]
    Chairman Kyl. In connection with your testimony, I want to 
insert, and without objection will insert in the record at this 
point, an article that was prepared by Jerry Camer, who is an 
excellent reporter, has done some excellent reporting on this 
subject generally that deals, among other things, with the 
numbers from Brazil, which you referred to in your written 
testimony, Mr. Lee, and which I found very helpful.
    Mr. Verdery, let me just say, your written statement is so 
lengthy and complete, if you need to take a few minutes beyond 
five to summarize the contents, you are sure welcome to do it, 
but I appreciate the written testimony.

STATEMENT OF C. STEWART VERDERY, JR., PRINCIPAL, MEHLMAN VOGEL 
CASTAGNETTI, INC., AND ADJUNCT FELLOW, CENTER FOR STRATEGIC AND 
            INTERNATIONAL STUDIES, WASHINGTON, D.C.

    Mr. Verdery. I will try to keep it around five minutes if I 
can, Senator. Chairman Kyl, Chairman Cornyn, thank you for 
having me back to the Committee to talk about critical issues 
about securing our nation's borders. As you mentioned, I am a 
principal at the consulting firm of Mehlman Vogel Castagnetti. 
I am also an Adjunct Fellow at the Center for Strategic and 
International Studies.
    As Assistant Secretary for Border and Transportation 
Security Policy until my resignation from Homeland Security in 
March, I was responsible for policy development within BTS. Our 
responsibilities covered immigration and visas, cargo security, 
transportation security, law enforcement, and were carried out 
in the field largely by ICE, by CDP, and by TSA.
    I thank the Committee for its extremely important efforts 
to support the Department during my tenure and I am very 
pleased to be participating with my former colleagues and very 
much appreciate their flexibility on having me join this panel 
and not being a lone ranger afterwards. The accomplishments I 
talk about here would not have been possible without their 
leadership, as well as their other chain of command.
    I am confident that the dissolution of INS and the 
assumption of INS responsibilities by DHS two years ago has 
fueled a great progress in fixing our immigration systems. From 
deployment of US-VISIT and the biometric visa program, to a 
valuable focus of our detention and removal systems on violent 
criminal aliens, to the Arizona Border Control Initiative, to 
significant reductions in the backlog in legal immigration 
applications, DHS has brought new integrity to our immigration 
systems.
    It is now time to take the bold step of enacting a 
legislative package to legalize employment opportunities for 
the millions of undocumented workers who wish to remain in or 
travel to the United States to work and to secure the border 
against terrorists and criminals by deploying a new generation 
of legal tools, enforcement resources, and international 
cooperation at the border.
    I will admit, when President Bush unveiled his immigration 
principles in January of 2004, I was somewhat skeptical. There 
were many commentators who presented the issue as a choice 
between a new worker program and border security. But two years 
in the trenches has convinced me that was wrong. It is the 
passage of a properly developed and properly funded guest 
worker program that will bring massive improvements to border 
security and thus homeland security.
    Following the footsteps of millions before them, hundreds 
of thousands of undocumented aliens each year cross the border 
illegally in search of work who present no risk of terrorism or 
criminal activity. Border Patrol agents in the field, however, 
have no way of differentiating between the individuals that 
make up this flood of human migration and the small but crucial 
number of terrorists or criminals that attempt to blend into 
the masses. Providing those who want to work and have no prior 
criminal or terrorism record a means to enter the country 
legally through ports of entry will make it much more likely 
that the Border Patrol will be able to locate and arrest 
criminals and terrorists who will lose their cloak of 
invisibility that the current situation offers.
    Now, those who are skeptical of this argument have 
understandable reasons for this view. For decades, enforcement 
tools to combat illegal immigration have gone underutilized, 
underfunded, or unsupported by the employer community, and 
while DHS has made substantial progress in enforcing the 
current regime, deploying a new guest worker program will take 
significant new resources for border and employment 
enforcement, for port of entry operations and facilities, 
development and issuance of tamper-proof identification 
documents, streamlining of legal regimes that adjudicate the 
status of border crossers and undocumented aliens, and new 
avenues of cooperation between the U.S. and Mexican 
governments.
    All of these enhancements to our current enforcement 
posture should support a basic motto of any new legislation: 
Deter and reward. Those who are seeking to enter our country to 
work must be faced with the reality that crossing our borders 
illegally or attempting to work without proper certifications 
will be detected and punished with long-term consequences. In 
contrast, those who follow the rules on applying to work and 
pass a security check and cross the border legally through 
ports of entry should be rewarded with employment and 
retirement and travel privileges.
    My written testimony discusses ten specific recommendations 
I would make in this regard, and I will focus on three, and 
these are all remarks: Expedited removal, US-VISIT, and our 
relationship with Mexico.
    As you know, September of 2004, DHS expanded authority to 
place illegal migrants into expedited removal proceedings in 
two Border Patrol sectors in Laredo and Tucson, and our prior 
witnesses discussed how this works. It is a common sense means 
of removing migrants who have no legal right to enter the U.S. 
and deterring others from making the journey. It was not 
possible to detain tens of thousands of aliens as they went 
through an elaborate legal process, and most were served with 
appearance orders and released into the interior of the United 
States. Not surprisingly, a large percentage of them failed to 
appear for their hearings and vanished into our towns and 
communities.
    The striking increase of the number of countries other than 
Mexico that you mentioned in your statement, Senator Kyl and 
Senator Cornyn, represents a massive new wave in migrants that 
brings significant concerns that nationals from countries with 
more terrorism activity than Mexico may be utilizing the 
Southern border to enter the U.S. By utilizing ER to hold all 
OTMs in ICE detention facilities, communities are spared that 
risk of having OTMs not appear for their deportation 
proceedings. As was mentioned, cutting the average length of 
detention from approximately 90 days to 26 days is the type of 
real reform we need.
    ER will end the perception that we currently have a catch-
and-release policy, and it is time for ER to be expanded to all 
Southern border sectors.
    In terms of US-VISIT, the deployment to our vehicle lanes, 
to hundreds of lanes at ports of entry and exit represents an 
immense technical challenge. The country currently operations 
with the prior generation border crossing cards that were not 
designed for a biometric entry or exit check, and it makes 
sense to me, as we build out the entry-exit facilities and we 
are passing a temporary worker program, to utilize the 
fingerprint and vetting systems at the heart of US-VISIT to 
secure the new worker program. This would mean any applicant 
would submit ten fingerprints, go through a full IDENT and 
IAFIS check for terrorism and criminal history activity, and be 
required to obtain a unique biometrically-enhanced travel 
document that would also serve as an employment verification 
tool at their place of employment. It would also require 
Congress to fund US-VISIT aggressively, especially money 
designed for facilities improvements at our ports of entry.
    My written statement goes into many areas of cooperation I 
would suggest with Mexico. I won't go into them here.
    The basic other point I wanted to make is these proposals 
address the machinery by which new entrants, legal and illegal, 
should be handled. Of course, any new temporary worker program 
also has to be structured to allow existing undocumented aliens 
and workers to apply for employment. The security imperative 
for this class of aliens is that they undergo a vetting before 
they have continued employment in the U.S. for terrorism and 
criminal ties. But I see no reason why the security check 
cannot be conducted while the worker remains in the United 
States.
    We have made a great deal of progress in less than two 
years to fix a broken immigration system. Building a system 
based on the principles of deter and reward will bring us to 
secure an effective border our economy needs and our security 
demands. I look forward to your questions.
    Chairman Kyl. Thank you very much.
    [The prepared statement of Mr. Verdery appears as a 
submission for the record.]
    Chairman Kyl. All three statements are great, and I do want 
to put in the record at this point opening statements by both 
Senator Kennedy and Senator Feinstein, without objection.
    For the benefit of folks that are not familiar with it, 
perhaps--and Mr. Lee, you may be the best person to start this 
off, but any of you can answer the question, I know--let us 
assume that Border Patrol comes across a group of 20 people, or 
a law enforcement entity calls Border Patrol and says, ``We 
have 20 people here who claim to be illegal immigrants. Would 
you please come get them.'' And so Border Patrol shows up, or 
has these 20 people in custody, perhaps just one Border Patrol 
agent, and let us say that you are 20 miles from a border town.
    Now, let us further assume that, as it turns out, half of 
these people are not from Mexico. They are OTMs. Let us further 
assume that a couple of these people are from what you call 
countries of interest, or countries of special interest, and 
that intermingled in this group are a couple who have criminal 
warrants out or a criminal background in the United States of 
America. So you have got kind of the whole mix of folks 
involved in this group of 20.
    Now, what as a practical matter does the Border Patrol do 
with these 20 people? Kind of take it from the time, and maybe, 
Chief, you can start with, okay, now he has got these 20 
people. They are all sitting on the ground. He has gotten them 
a jug of water and so they are all having a drink of water now. 
What does he do from that point? How do they get processed? How 
do they get checked? How do they get separated out, those of 
interest and not? How do they get returned to Mexico or not? 
How is the determination made for those who are eligible for 
expedited removal because they clearly have only been here a 
week, let us say, and it is within 100 miles of the border.
    So how does that all work for these different cohorts to 
better understand exactly the issues? And let us further 
stipulate that there is no detention space available anywhere 
for the OTMs.
    Mr. Aguilar. Yes, sir. Given that we have got a whole array 
here of Mexican aliens, OTMs, special interest country aliens, 
criminal aliens, things of that nature, I will run you through 
the quick process on each one of them.
    Basically, on the Mexican aliens that are apprehended, if 
they are, in fact, eligible for voluntary departure, which 
means that they have not committed a crime in the United 
States, are not wanted or anything of that nature, then they 
would be voluntarily returned, processed within a matter of 
minutes for each one of them, eight to ten minutes per, and 
they would be processed and returned back into Mexico.
    Chairman Kyl. And the processing would include what?
    Mr. Aguilar. The processing would include biometric 
information, IDENT/IAFIS. We would run through those checks. We 
would capture the information on our databases, which is in 
force--
    Chairman Kyl. Excuse me, that is ten fingerprints or--
    Mr. Aguilar. Yes, sir. IDENT/IAFIS is now a full ten set of 
fingerprints that gives us the data check on any kind of 
criminal background that may exist within those databases.
    Chairman Kyl. And no criminal background on eight or nine 
of these folks. Then what happens to them?
    Mr. Aguilar. If they are Mexican aliens, then they are set 
up for voluntary departure. The processing on that is pretty--
doesn't take a lot of time. Within ten, 15 minutes or so--
    Chairman Kyl. And they are put in some kind of 
transportation to the nearest border town?
    Mr. Aguilar. Yes, sir. They are held for a very short 
amount of time at the Border Patrol stations awaiting for 
basically the buses or the vans to go back to the Mexican ports 
of entry for return into Mexico.
    Chairman Kyl. Got it. Now, let us say that the fingerprints 
find that you have got somebody that is wanted on a criminal 
charge, a felony charge in the United States. What happens to 
that person?
    Mr. Aguilar. At that point in time, we will make a 
determination as to whether the authority that has a wants or 
warrants on them will want to extradite or take custody of the 
individuals. If they do, we will hand them over to that 
authority for prosecutorial purposes. At that point, we will 
also place a hold, an immigration hold on these people to 
ensure that once they go through that prosecutorial process, at 
the end of that process, we in DHS take them back into the 
custody to continue with the administrative removal after 
having served the time due to the prosecution of the criminal 
wants or warrants.
    Chairman Kyl. And that is going to require some detention 
space for you all during the period of time before you transfer 
them over to the jurisdiction that has the warrant.
    Mr. Aguilar. Yes, sir. That will be a short amount of time. 
Typically in those criminal wants or warrants cases, the 
responding agency will be pretty timely in responding. 
Detention and Removal does assist us with holding them 
temporarily while we turn them over to those other prosecuting 
agencies.
    Chairman Kyl. Okay. Now, you have got some folks from, I 
will just cite two countries. One of the countries, let us say, 
is Brazil, a couple of folks from there, and a couple of folks 
from Saudi Arabia. What happens there?
    Mr. Aguilar. On the--let us start with the ones from 
Brazil. From Brazil, since they are not a special interest 
country, what we would do is again run them through all of our 
databases to make sure that they are not criminally involved or 
have any kind of nexus to terrorism, even though they are not 
from a special interest country. We want to ensure that every 
individual, regardless of where they are coming from, have no, 
or pose no threat to the security of the United States.
    After having verified that, then we will process them as 
other than Mexicans. At this point, we will make a 
determination as to whether, if ER is available to us, that 
they will be placed into expedited removal--
    Chairman Kyl. Now, ER or expedited removal is available 
right now in how many sectors along the border?
    Mr. Aguilar. Expedited removal for an OTM alien coming into 
the country is available in Tucson and Laredo.
    Chairman Kyl. Only two sectors out of how many?
    Mr. Aguilar. It is out of 20 sectors.
    Chairman Kyl. Okay.
    Mr. Aguilar. Nine are along our Southwest border with 
Mexico. In addition to that, Senator, it is important that I 
point out that in the remaining sectors which are within the 
Ninth Circuit Court of Appeals, which is San Diego, Central, 
and Yuma, we also have ER available to us if, in fact, that 
Brazilian had previously been in the United States, had 
previously been deported, and we can now--we used to be able to 
reinstate. Now we can't, because of an adverse decision by the 
Ninth Circuit Court of Appeals. So specific to that grouping, 
we can apply ER to that grouping. To where those people have 
been formally deported in the past, we can now apply ER.
    Chairman Kyl. Okay. So you haven't yet gotten to the person 
of special interest, but let us say that the two Brazilians, 
now, is Brazil a country that takes our aliens who are eligible 
for this process?
    Mr. Aguilar. For--
    Chairman Kyl. For expedited removal?
    Mr. Aguilar. Once they go into the expedited removal 
process--maybe it is easier if I explain it this way, sir. Once 
we place that person in expedited removal, the Border Patrol 
agent makes a determination that that person is not going to be 
claiming political asylum or has no credible fear, things of 
that nature. At that point, we hand off the alien once he is 
processed, he or she is processed, into Detention and Removal. 
Once that alien is placed in expedited removal, they are 
mandatory detention cases. In the case of Tucson and Laredo 
currently, we are detaining 100 percent of the people that we 
are placing in expedited removal.
    Chairman Kyl. And it takes an average of about a month to 
complete that process today. Now, before we get to the special 
interest cases, again, what is the situation with regard to 
countries that take aliens versus those who do not? Mr. Lee, do 
you want to talk about that for a minute?
    Mr. Lee. Yes. Most countries--
    Chairman Kyl. Or easily take them.
    Mr. Lee. Most countries do easily take their detainees 
back. Some of them, not as soon as we would like, but they have 
a process themselves. Some countries, you know, the nationals 
that enter the United States are fairly large, so just the 
presentation to the foreign government to interview their 
national and issue a travel document is time consuming for 
them. But most will issue travel documents. It is just a 
process that you have to go through.
    Of course, the ones that don't issue travel documents falls 
under that decision that if we can't remove them, if we can't 
remove them within 180 days, then we have to release them here 
in the United States.
    Chairman Kyl. Now, what does that mean, and how many 
countries or how many cases are there--I am sorry, I am over my 
five minutes. Let me just pursue this line of questioning and 
then turn it over.
    So now let us say you have got a country, and I don't want 
to name a country, I think I can name one, but name one that it 
is difficult for us to get to take aliens back.
    Mr. Lee. I would name Vietnam.
    Chairman Kyl. Okay.
    Mr. Lee. In those cases, Vietnam won't take their nationals 
back. On very rare instances, will they take their nationals 
back.
    Chairman Kyl. So you have this person in detention. You 
have determined that the individual is Vietnamese, not here 
with an asylum case at all, and it is a country that doesn't 
easily take their folks back. So then what happens to the 
individual?
    Mr. Lee. We can detain up to 180 days after removal and 
then if it is not reasonable that we are going to be able to 
remove them, we have to release them.
    Chairman Kyl. So you have to release them back into our 
society?
    Mr. Lee. That is right.
    Chairman Kyl. Are they required to do anything, or are they 
supposed to do anything?
    Mr. Lee. We have reporting requirements that we can place 
on them, but they can violate the reporting requirement, we can 
take them back into custody, but then we will have to release 
them again. There is--
    Chairman Kyl. So as a practical matter, if a country 
doesn't take their aliens back or their citizens back, these 
people end up in our society and whether or not they ever 
report is based upon their good faith?
    Mr. Lee. Yes, that is true.
    Chairman Kyl. Do you have any idea of how many countries or 
how many people we are talking about per year in that category?
    Mr. Lee. I don't have a number.
    Chairman Kyl. If you don't, maybe you can get that for the 
record.
    Mr. Lee. I can.
    Chairman Kyl. Are there several countries that are pretty 
slow or reluctant to take their citizens back?
    Mr. Lee. Well, there are four that we really can't remove 
to at all, very limited basis--
    Chairman Kyl. Can you name those countries?
    Mr. Lee. We have Laos, we have Vietnam, we have Cuba that 
we can't release to, and Cambodia. Cambodia is starting to take 
back a little now. We are seeing some progress in that area. 
But those are basically the ones.
    Chairman Kyl. Okay. Now, let us go back, because we found 
that there are two of these folks from--and I am not--any 
particular country, I am just using for an example, but I 
believe that Saudi Arabia is a country of special interest--
    Mr. Lee. Yes, sir.
    Chairman Kyl.--and if that is the case, what happens to, 
let us say, two of these folks from Saudi Arabia? What happens 
to them?
    Mr. Aguilar. At the point of apprehension?
    Chairman Kyl. Yes. You find out that they are from Saudi 
Arabia one way or another. I guess the fair question is, how 
might you find out if they are not really cooperative in 
telling you?
    Mr. Aguilar. Yes, sir. On the Saudi Arabians, on the OTMs 
that we suspect to be from a country of special interest, we 
would, of course, run them through all of our databases, all 
our data checks and everything else that we have. In the cases 
of special interest countries, we go the extra step, if you 
will, to make sure that not only our systems checks but also 
FBI, JTTF, the intelligence community to the degree possible is 
running all these checks.
    At that point, once we are satisfied--and that satisfaction 
goes beyond just the database checks. It goes to the point to 
where the officer making the detention has to be fully 
satisfied that there is no threat to the United States. At that 
point, we continue the processing and basically try and hold 
them for removal from the United States, and that is a formal 
removal process whereby we will process them and hand them over 
to the Detention and Removal Office.
    Chairman Kyl. So if the determination is made that they are 
from a country of interest but that they themselves pose no 
threat, they are turned over to Detention, and at that point, 
the formal removal process is commenced, is that correct, Mr. 
Lee?
    Mr. Lee. That is correct.
    Chairman Kyl. How many times does it occur that there is no 
space for these folks?
    Mr. Lee. For the special interest countries--we have got 
about 2,500 beds that are discretionary beds right now. They 
are full, but they are not filled with mandatory cases. So the 
special interest cases, criminals, once we get to the criminal 
area, anybody that has ties to terrorists will come into 
detention and will remain in detention until, like these two 
that really had no interest there, they will request a bond 
determination. They will go in front of the IJ. They will 
present their case. The immigration judge in a lot of cases 
will either release on OR or grant small bonds.
    Chairman Kyl. Now, what is your experience when they are 
released on OR? How many folks show up?
    Mr. Lee. It is not a good story. About 30 percent that are 
released actually show up for a hearing, and about 85 percent 
of those that show up for hearing actually show up if they are 
ordered removed.
    Chairman Kyl. Wait a minute. Say that again. I am sorry.
    Mr. Lee. About 30 percent show up for a hearing. Of those 
30 percent that show up for a hearing, about 85 percent of 
those don't show up, they become absconders if they are ordered 
removed.
    Chairman Kyl. So there are two different steps along the 
way. In the first instance, about 70 percent don't show up, and 
then for those who have been ordered removed, again, a 
percentage of them don't show up for removal. And these are 
people from countries of interest?
    Mr. Lee. These are just anybody that is released.
    Chairman Kyl. All right. I was referring to these people 
from countries of special interest, but you are giving me the 
total figures from people who have been in detention. Okay.
    And my last question here, with regard to those--when there 
is no detention space available or you have to make room for a 
higher-priority case, can you give us some idea of the order of 
magnitude of the problem of lack of detention space and, 
therefore, the resources that might be necessary for us to 
ensure that there is adequate detention space?
    Mr. Lee. Well, currently, like I say, currently, we have 
about 2,500 discretionary beds. So those beds are filled with 
OTM, non-criminal OTMs, really non-criminal cases. Most of 
those 2,500 beds are in support of the Border Patrol. There are 
a few of those beds that come from the airports through the 
inspection process and are non-criminals, but the majority of 
them right now support the Border Patrol. So if we get somebody 
who is a higher priority, a non-criminal OTM will go to the 
street.
    Chairman Kyl. I am sorry?
    Mr. Lee. A non-criminal OTM will go to the street if they 
have somebody of a higher priority.
    Chairman Kyl. Will go to the street, meaning--
    Mr. Lee. They will be released.
    Chairman Kyl. --released on their own recognizance, and a 
high percentage of them don't show up then again, is that 
correct?
    Mr. Lee. That is right.
    Chairman Kyl. Okay. I have taken more time than 
appropriate. Go ahead, Senator Cornyn.
    Chairman Cornyn. We earlier averted to the testimony of 
Admiral Loy, Deputy Director of the Department of Homeland 
Security, about the potential for terrorists to use the same 
means to come into the country that are currently used by other 
human smugglers and people who patronize those human smugglers.
    I would like to ask, maybe starting with Chief Aguilar, 
assume that a person from Iraq or Afghanistan is able to leave 
that country, those countries and make their way, let us say, 
to Turkey, connect with a human smuggler of some kind, and then 
transit to, let us say, over to the Balkans Peninsula and then 
over, let us say, over to Italy, part of the European Union, 
and then obtain false identification indicating that they are a 
member of one of the countries--they are a citizen of one of 
the countries in the European Union, and they are then, by 
virtue of the human smuggler, they are then transited, let us 
say, to Mexico and then attempt to make their way into the 
United States.
    When you apprehend that person and they have, let us say, 
what appear to be on their face documents which designate them 
as, let us say, an Italian citizen or some other member state 
of the European Union, how would you identify them? Would they 
be, even though they come from Afghanistan or Iraq, would they 
be designated as a person who comes from a country of special 
interest or not?
    Mr. Aguilar. Yes, sir, and one of the reasons is for the 
following. You ask a very good question. We have a listing of 
the special interest countries where persons coming from those 
special interest countries, of course, are designated as such 
and automatically there is a higher level of scrutiny. But in 
addition to that, within DHS, we have a means by which to 
identify persons originating out of that special interest 
country even if they are not from or traveling through that 
kicks them into that higher level of scrutiny. So even if he 
was, for example, an Italian, but traveled through one of 
those, originated his last flight out of a special interest 
country, that would automatically kick him or her into that 
grouping where that scrutiny would be at a much higher level.
    So in addition to that, this hypothetical person that you 
just referred to with the counterfeit documents, fraudulent 
documents, things of that nature, in the case of the Border 
Patrol, if we encounter them, that means that probably they 
came between the ports of entry. So the investigative process, 
the interview process would probably give us that kind of 
information as to the true identity of this person.
    If we encountered them in the interior at a checkpoint or 
at one of our defense in depth postures, such as Sky Harbor 
Airport, Las Vegas Airport, or something of that nature, the 
training that our officers receive in counterfeit and 
fraudulent documents would also come into play. And, of course, 
if there is any question on the documentation, we have our 
brother and sister CBP officers who are experts in those areas 
that we could also utilize. We also utilize the National 
Targeting Center, CBP National Targeting Center, to run those 
documents and probably do a good job of identifying those 
counterfeit or fraudulent documents.
    Chairman Cornyn. Of course, that is if you are able to 
apprehend them.
    Mr. Aguilar. Yes, sir.
    Chairman Cornyn. No matter whether they have valid or 
counterfeit documents, if you are unable to actually apprehend 
them as they are coming across due to lack of human resources 
or insufficient equipment, obviously, you are not able to run 
those kind of checks against those.
    Mr. Aguilar. Right.
    Chairman Cornyn. Let me just make sure we all understand 
what we are talking about when you talk about running the names 
of these individuals against various databases. There isn't a 
database that has everybody's name in it, correct?
    Mr. Aguilar. That is correct.
    Chairman Cornyn. It would just be if their name, assuming 
they give you a correct name, generates a negative hit on some 
database. Isn't that what we are talking about, primarily?
    Mr. Aguilar. By negative hit, I am assuming that you mean 
that information of interest is there?
    Chairman Cornyn. For example, if you ran John Cornyn's name 
and your database did not have a record of a criminal 
conviction on it, then that wouldn't generate a hit, would it, 
if--
    Mr. Aguilar. That would not, yes, sir. That would not.
    Chairman Cornyn. So it is only if you actually have a 
record of a negative information, either criminal record, they 
are on a watch list--
    Mr. Aguilar. Yes, sir.
    Chairman Cornyn. --provided by the State Department, 
Department of Homeland Security, and the like. So if, let us 
say, this individual who comes across and you are checking 
their name and you have no record whatsoever of this 
individual, it would not generate a negative hit and you would 
not then treat them in this enhanced special status where you 
would have mandatory detention and the like, is that correct?
    Mr. Aguilar. If they are coming from a special interest 
country, the level of scrutiny would be much higher, especially 
in the area of anti-terrorist training that all of our CBP 
officers have now taken. That would delineate a certain level 
of questioning, if you will, line of questioning, things of 
this nature, where the enforcement officers will take that 
posture to the degree possible, absent any findings on 
databases, to make sure that we are doing everything we can to 
identify any potential ties. But yes, sir, it would be 
dependent on the officer at that point.
    Chairman Cornyn. I appreciate that our officers, being 
professionals, are trained to try to root out individuals who 
they should be detaining, even though their name doesn't appear 
on the list, the watch list or the criminal convictions list, 
but I want to make sure we understand that absent an officer 
being able to identify that person, that identity would not 
necessarily be generated by one of the various databases that 
that name is run against.
    Of course, there is--do you ever run into the problem where 
somebody gives you a false name?
    Mr. Aguilar. Yes, sir, all the time. Absolutely.
    Chairman Cornyn. And if somebody gave you a false name, 
obviously, that would be less likely to generate a hit on the 
database check. In other words, it wouldn't reveal that that 
person's false name had been convicted of a crime or had made 
multiple attempts to enter the country illegally, or perhaps 
was even from a country of special interest. If someone gave 
you a false name, how would you be able to determine whether 
they fell into any of those categories that would likely 
guarantee higher scrutiny?
    Mr. Aguilar. Well, let me take that a piece at a time, sir. 
With any kind of prior criminal conviction, the biometric 
information that we would capture by way of the ten-print check 
would, in fact, overcome the false name, identity, if you will.
    Chairman Cornyn. Even if there was no record in the 
database of who that person actually was?
    Mr. Aguilar. That is assuming a criminal background.
    Chairman Cornyn. Okay, assuming the criminal background.
    Mr. Aguilar. Yes, sir. In the case of an individual of 
interest, for example, one of the cases that I can refer to as 
an example is a case in point where a person out of El Salvador 
involved in a homicide crossed the border into the United 
States. Because of the interest of that country, we were able 
to bring biometrics into our systems to where once we had that 
individual in custody, we ran the ten prints, even absent a 
criminal background, if you will. He popped up because we were 
able to input that data on there. But again, we are dependent 
on the databases.
    Other things that are taken into consideration, of course, 
is the fact that a lot of our operations are intel-driven, 
intel-driven in the sense that we conduct operations based on 
intelligence on people who originate in certain countries, 
means of travel, routes of travel, organizations utilized, risk 
factors associated with the person, such as age, things of this 
nature, associations and smuggling routes. Anything of that 
nature would come into play there.
    Chairman Cornyn. Let me just, since my time on this first 
round is limited, ask Mr. Verdery. Mr. Verdery, you talked 
about how your opinion had changed somewhat based upon your 
experience at the Department of Homeland Security in terms of 
the practical ability of this country to adopt a temporary 
worker program along the lines of the principles that the 
President has articulated. I gather from what you said that you 
came to doubt whether an enforcement-only approach could be 
successful in addressing the massive illegal immigration and 
the lack of control we have of our borders, is that correct?
    Mr. Verdery. I think that is a fair way of putting it. The 
basic dilemma you have, hearing some of the numbers that were 
mentioned earlier, is you have got a massive tide of 
individuals, each one of which has to be evaluated on their own 
merits, and use whatever information you have, whether it is 
their country, their biographic information, their biometric 
information. But your odds of finding the literal needle in the 
haystack is a lot better if the haystack is a lot smaller. So, 
yes, that is why I think we need to do so much more on the 
physical enforcement at the border, but it is going to be 
difficult ever to reach that kind of goal that you want, to 
find those needles, with the current kind of numbers we are 
talking about.
    And one thing, if I might just add, on the line of 
questioning you had for Chief Aguilar is it demonstrates the 
importance of information sharing and especially biometric 
information sharing with our foreign government partners. If we 
don't have negative information about somebody, we don't have 
negative information about them. And so if you pick them up, 
you are not going to know anything. You are probably not going 
to know to detain them or to do something with them. So having 
robust fingerprint information sharing with the E.U., with the 
U.K., with other partners, is absolutely essential to try to 
build out that universe of the people we would want to worry 
about when we pick them up.
    Chairman Cornyn. So if I can summarize in conclusion, you 
are saying that if we weren't concerned with literally hundreds 
of thousands or maybe millions of people coming across our 
border, that is from a law enforcement perspective, but rather 
tens of thousands, that our law enforcement resources and 
intelligence resources could be focused with greater precision 
on that threat if there was a mechanism for people to come into 
the country, at least on a temporary basis, to be checked and 
to be able to work in a temporary time frame within some sort 
of legal framework.
    Mr. Verdery. You said it very well.
    Chairman Cornyn. Thank you.
    Chairman Kyl. Senator Sessions?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. I thank both of you Chairmen for your 
leadership on this issue and I value both of your judgment as 
we work through these issues.
    I have believed we have been in a state of denial about how 
things have been operating on the border. It is worse than most 
people realize. Here is an article I would like for you to 
comment on. It is the Copley News Service, June 4, by Jerry 
Camer, dateline, McAllen, Texas.
    ``In the silvery blue light of dusk, 20 Brazilians glided 
across the Rio Grande in rubber rafts propelled by Mexican 
smugglers who leaned forward and breaststroked through the 
gentle current. Once on the U.S. side, the Brazilians scrambled 
ashore and started looking for the Border Patrol--started 
looking for them. Their quick and well-rehearsed surrender was 
part of a growing trend that is demoralizing the Border Patrol 
and beckoning a rising number of illegal immigrants from 
countries beyond Mexico.''
    `` `We used to chase them. Now, they are chasing us,' said 
Border Patrol agent Gus Balderas as he frisked the Brazilians 
and collected their passports last month. What happened next 
explains this odd reversal. The group was detained overnight,'' 
I guess in McAllen, ``given a court summons that allowed them 
to stay in the United States pending an immigration hearing. 
Then a Border Patrol agent drove them to the McAllen bus 
station, where they continued their journey into America. The 
formal term for the court summons is a `Notice to Appear.' 
Border Patrol agents have another name for it. They call it a 
`Notice to Disappear.' ''
    ``Of the 8,908 Notices to Appear at the immigration court 
in nearby Harlingen issued last year to non-Mexicans, 8,676 
failed to show up for their hearings, according to statistics 
compiled by the Justice Department's Executive Office for 
Immigration Review. That is a no-show rate of 98 percent,'' 
close quote.
    Tell me, I guess, Mr. Aguilar. Your people are out there at 
some personal risk, working nights and long hours to try to 
enforce the law. How do they feel when they follow the rules 
and 98 percent of all they are doing is helping thousands of 
people further into the United States from which they 
disappear? Tell me how this can continue, or how it has 
occurred.
    Mr. Aguilar. One of the things that I think is important to 
point out, Senator, is the fact that, yes, agents are 
frustrated out there. One of the things that--and I just now 
have gleaned through this. I had not seen this article. I had 
heard about it. But I can tell you that the reason that this is 
happening again is because of the lack of detention space. So 
it is not a policy. It is not something that we prefer to do. 
But the reason that these individuals are NTA-ed and released 
on their own recognizance is because we have no place to put 
them.
    Senator Sessions. All right. Now, let me follow that. Has 
anybody, to your knowledge, from the Border Patrol written and 
made a budgetary request for sufficient detention space to 
handle these individuals, and has anyone done an account for 
how much money it would cost to be able to detain them?
    Mr. Aguilar. Senator, the Border Patrol interdicts. We make 
the arrest, we process, and then we hand off to Detention and 
Removal.
    Senator Sessions. Mr. Lee's job, I guess.
    Mr. Aguilar. Yes, sir. Now, I would like to give you some 
statistics that I think are very telling which go right in line 
with what you are describing there.
    As an example, in McAllen, the highest number of 
apprehensions that occurs in the McAllen sector, which, by the 
way, is our highest-producing sector for OTMs in the nation, 
McAllen sector has apprehended, for example, through the end of 
May, 47,000 OTMs. Of those--
    Senator Sessions. And OTMs is--
    Mr. Aguilar. Other than Mexicans.
    Senator Sessions. And--
    Mr. Aguilar. Which includes that grouping of Brazilians. I 
don't have the exact number--
    Senator Sessions. And the problem is, just for those who 
might be listening, is you can easily transport those who come 
from Mexico back into Mexico, but Mexico won't take somebody 
from Brazil--
    Mr. Aguilar. That is correct.
    Senator Sessions.--so you have to get them all the way to 
Brazil.
    Mr. Aguilar. Yes, sir. That is correct. Now, you just 
touched on another challenge that we have. One of the problems 
that we have with Brazilians--now, this is specific to 
Brazilians--is that Mexico does not require a visa for 
Brazilians coming into Mexico, which, of course, now they use 
as a means to jump off into the United States illegally, and 
because of the challenges that we have with our lack of 
detention space, we have the situation that we are faced with.
    Right now in McAllen, the rate of release on own 
recognizance is at about 90 percent of the people that we 
apprehend, other than Mexicans.
    Senator Sessions. And 98 percent of those are not showing 
up as required, according to this article, at least.
    Mr. Aguilar. According to the article. That would have to 
be--
    Senator Sessions. Mr. Lee, it seems to me in all of these 
matters, from my experience in prosecuting, it is just 
something I have come to believe and intuitively understand 
from nearly 20 years of prosecuting is that there is a tipping 
point where if the word is out that people know nobody is going 
to do anything to you if you sell drugs, they will sell drugs. 
Once it becomes a reality that something serious is going to 
occur to you if you sell drugs, drug selling will go down. It 
really will.
    Tell me what we can do, and what it would cost, to create 
housing for some 8,000 people or so to give integrity to this 
process so that they are able to be deported to their home 
countries and detained long enough for that. What is the 
problem here? What do we need?
    Mr. Lee. Well, detention, I think, is probably one of our 
most valuable tools, but there is more than detention. I mean, 
you can detain somebody. If you don't have a removal order, you 
can't remove them. You can just put them in a bed.
    Senator Sessions. What does it take--I mean, these cases--I 
know something about how cases move. It is just a question of 
getting them before a judge, is it not, an administrative 
hearing judge?
    Mr. Lee. That is why I think expedited removal is so 
important, because getting them in front of the judge, as the 
statement I read--
    Senator Sessions. Yes, I am--
    Mr. Lee. --it takes about 89 days to put them in front of a 
judge versus about 26 days putting them in ER. So you can turn 
over more with less beds.
    Senator Sessions. Well, is somebody working on this? That 
is all I am asking. I mean, is somebody in charge here?
    Mr. Lee. Yes, we are--
    Senator Sessions. Is somebody saying, we need to get the 
hearings done quickly? I don't see why they can't be done in a 
matter of days, literally. There is no reason these hearings 
can't be done within days. And then you have got to develop a 
system by which you can transport them back to their home 
country, which is expensive and burdensome, but that could be 
done, also. Where are we on this spectrum? Do you have a vision 
that would indicate that this utter failure would end and we 
will have a system that has integrity?
    Mr. Lee. There is a vision and it has already started. 
Expedited removal is already in Laredo and Tucson sectors. It 
has been going on now since October--September.
    Senator Sessions. Expedited--it works for Mexicans?
    Mr. Lee. No, these are for OTMs.
    Senator Sessions. OTMs?
    Mr. Lee. Yes, other than Mexicans. In both of those 
sectors, all cases that--all OTMs that were placed in the ER, 
we have either removed them or they are still in detention. So 
expedited removal is working and we do have a plan to expand 
expedited removal.
    Senator Sessions. Do you have an opinion about how many are 
detained pending expedited removal and how many are released on 
recognizance?
    Mr. Aguilar. Senator, if you don't mind, I will take part 
of that question. Since September, in those sectors where we 
have implemented expedited removal, we have placed over 
20,000--20,000 people into expedited removal. Since we began 
this program, expedited removal is also mandatory detention 
when we place them into ER. Those have been detained and have 
either been removed or are in the process of being removed.
    Senator Sessions. So if you are in the expedited removal 
program, you are detained until removed.
    Mr. Aguilar. Yes, sir. Right now, we are working very--
    Senator Sessions. Is the problem that everybody is not in 
it bed space, hearing time? Where would resources need to be 
applied--
    Mr. Aguilar. And that is one of the things that we are 
working with very closely right now, with Detention and Removal 
Office, the CIS, Citizenship and Immigration Services because 
of their part within the credible enforcing of this, to ensure 
that the program is carried out systematically and that we 
carry it out in such a way that once these people are placed 
into ER, they are mandatorily detained and removed, thereby 
reducing the amount of time that they need to spend in 
detention, therefore reducing the cost. Now, we are looking on 
that expansion of that program as we speak right now.
    Senator Sessions. But you can't order hearing judges 
around, can you, Mr. Aguilar? They don't work for you, or do 
they? Are they a part of--
    Mr. Aguilar. No--
    Senator Sessions. So somebody up high, up here, has got to 
tell everybody this system has got to get in sync and be more 
effective, don't they?
    Mr. Lee. That is why we are using expedited removal. They 
don't have to go in front of a judge with expedited removal.
    Senator Sessions. Oh.
    Mr. Lee. An agent on the ground can order somebody removed, 
the Border Patrol agent.
    Senator Sessions. Without a judge.
    Mr. Lee. That is right.
    Mr. Aguilar. Yes, sir. Under ER, sir, basically, the agent 
on the ground will make that determination as to whether that 
person has any claim to be in the United States or right to be 
in the United States. Once that claim is in the negative, 
adjudicated in the negative, then they are formally removed 
after supervisory oversight and certain assurances in place to 
ensure that these people, if, in fact, they have a credible 
fear, claim for fear of persecution or things of this nature, 
it is built into this program. But once a determination is 
made, these people are rapidly removed out of the country 
without an immigration judge coming into play.
    Senator Sessions. Do you know how long those are taking, 
from the time they are apprehended to the time they are 
removed?
    Mr. Lee. Right now, the average is about 26 days.
    Senator Sessions. Would it be possible to get that 
substantially less?
    Mr. Lee. We are working on that. The issue--
    Senator Sessions. Do you need money to make it less?
    Mr. Lee. No. Actually, we need the foreign countries to 
issue travel documents faster, and we are always going to have 
the amount of time it takes to do country notification. You 
can't just put somebody on a plane and send them back without 
notifying them. So we have the country notification process and 
we schedule--the scheduling for removal. But we are trying to 
increase the rate of travel documents.
    We are using VTEL now. We have made requests for the 
foreign governments--Honduras is on board. We are placing VTEL 
in their consulate offices and in our offices so they can 
interview without having to come out and do personal 
interviews. We made the request in numerous other countries and 
they haven't committed yet, but they are talking as if they are 
going to. So that will reduce the rate and actually have us 
turn over faster.
    Senator Sessions. My time is expired. Give me a quick 
answer. What percentage of people are being handled under 
expedited removal and what percentage is handled in the 
traditional way?
    Mr. Aguilar. Let me answer that question in the following 
manner, sir. In Tucson and Laredo, OTMs that are eligible for 
expedited removal, about 95 to 98 percent of those are being 
placed in expedited removal within those two sectors. OTMs, in 
general, within the population of illegal aliens that we 
apprehend across our nation's borders, is 12 percent, through 
the end of May, 98,000. We have placed 20,700-and-some in 
expedited removal.
    Now, I would like to say that ER and detention are key to 
creating deterrence. That is absolutely key to our successes.
    Senator Sessions. I couldn't agree more.
    Mr. Aguilar. Yes, sir.
    Chairman Kyl. And if I could just follow directly up on 
that, there are two needs, at least. First, we need to extend 
the expedited removal process to all of the sectors instead of 
just two. And secondly, we need to make sure that there is 
detention space available. So as to the first point, what will 
it take to extend the expedited removal process to all 20-some 
sectors?
    Mr. Aguilar. We are actually going through that process 
right now, Senator. We are working, as I said, very closely 
with DRO, with CIS, to ensure that as we roll out, as we evolve 
this program, the integrity of the program is there.
    Chairman Kyl. What does it take? Does it take training of 
people? Does it take money? What does it take?
    Mr. Aguilar. Yes, sir. That takes training. We are, in 
fact, right now currently going through training of the 
remaining sectors along our nation's Southwest border to ensure 
that when this program is kicked off along, or evolved along 
our Southwest border, everybody is trained up and the integrity 
of the program is maintained.
    Chairman Kyl. Is the process to do it every two or three 
sectors, or to do them all at once, or what is the process and 
how long do you expect it to take to be completed?
    Mr. Aguilar. The end game we are looking for is across all 
of our sectors. We are going to take a look initially at all of 
our Southwest border sectors, the nine Southwest border 
sectors, Northern, and then coastal and waterway.
    Chairman Kyl. So we will have to deal with the others, as 
well. But just with respect to the Mexican border, how long do 
you think it will take before it is extended to all--to the 
entire--all of the sectors on the Mexican border?
    Mr. Aguilar. It is coming soon. It is coming soon, Senator.
    Chairman Kyl. Well, are we talking about a matter of 
months?
    Mr. Aguilar. I would feel comfortable with that. If DHS 
approves it and everything else, yes, sir.
    Chairman Kyl. So within a matter of months, then, all of 
the sectors will have the same kind of expedited removal that 
Tucson and Laredo have today?
    Mr. Aguilar. That is what we are working towards, yes, sir.
    Chairman Kyl. Do you need any other resources to make that 
happen?
    Mr. Aguilar. To make ER happen within the Border Patrol, I 
think we have the resources necessary. The resources that are 
going to have to be concurrent with that is the ability to 
detain--
    Chairman Kyl. Right.
    Mr. Aguilar. --those people that we place in ER.
    Chairman Kyl. Okay. And getting to the detention and 
anything else that DHS, beyond just the Border Patrol, would 
need, Mr. Lee, what do you think it needs, how long will it 
take, and then on a separate matter, how much more detention 
space is necessary?
    Mr. Lee. I think the ER plan, like Mr. Aguilar said, is we 
are real close on the plan. I don't think that that is going to 
be an issue and we will get back to you on when that is going 
to be.
    But the detention space, it is hard--like I say, it is hard 
to say how much detention space you need, because with ER, we 
can remove these people a lot faster. We are working on the 
travel document issue. We think we are going to be able to 
enhance that number.
    So to put a bed number on it, we actually just opened--we 
haven't opened it yet. We have a facility out in Pearsall. It 
is in your neck of the woods down there. It is a little bit 
West of San Antonio, probably Southwest of San Antonio. It is 
1,000 beds that we are going to dedicate specifically for these 
ER cases.
    That may do it. It just depends on how many--the deterrent 
effect for expedited removal may be huge. The amount of--
    Chairman Kyl. But even if you had space temporarily to take 
care of the full need, you could cut back on that once the 
deterrent worked. How many OTMs do you release into the United 
States each year, or are released if you are not releasing?
    Mr. Aguilar. Currently, Senator, the Border Patrol 
nationwide is OR-ing approximately 70 percent of those OTMs 
that we apprehend.
    Chairman Kyl. And the number apprehended last year of OTMs 
was about, oh, just under 100,000?
    Mr. Aguilar. Last year, I believe, was 87, and I will get 
to you the exact number on that. But year-to-date, it is 
94,684.
    Chairman Kyl. And what percent of those are released on 
their own recognizance?
    Mr. Aguilar. Nationwide, about 70 percent.
    Chairman Kyl. Seventy percent. So you are talking about 
somewhere in the neighborhood of 60,000-plus people that are 
released on their own recognizance and very few of those ever 
show up, is that correct?
    Mr. Aguilar. That is correct.
    Chairman Kyl. And you hope that you have captured the 
criminals in that group, captured the criminals so that they 
are not part of that group.
    Mr. Aguilar. Yes, sir.
    Chairman Kyl. How many criminals again? I have the number 
here of 94,700 criminals were apprehended in the last--or since 
September 1 in this fiscal year. Now, those are people that 
have criminal records and, therefore, regardless of what 
country they are from, they are also subject to this same 
removal process. In other words, Mexicans with a criminal 
record would be subject to the same removal process as an OTM, 
is that correct?
    Mr. Aguilar. That is correct, especially if they are 
criminals.
    Chairman Kyl. So you can have criminals released, then, on 
their own recognizance, not showing up, as well, is that 
correct?
    Mr. Aguilar. In the area of criminals, they are one of the 
priority detention cases. Now, not all of them are detained, 
but it depends on what level of criminal activity they were 
involved in. For example, an aggravated felon is, in fact, a 
mandatory detention.
    Chairman Kyl. And obviously anybody that is currently 
wanted is going to have a priority, as well, is that correct?
    Mr. Aguilar. That is correct.
    Chairman Kyl. Okay. So you don't know exactly how many 
criminals are released on their own recognizance, but some 
number are. I guess we can say in the thousands, would that be 
fair to say?
    Mr. Lee. I think your criminal aliens are--like I say, we 
have about 2,500 discretionary beds right now, so your criminal 
aliens are going to be held in detention unless they get in 
front of the immigration judge and, based on due process and 
their ties, they may be low-bonded out by the immigration 
judge.
    Chairman Kyl. But if there are 94,700 criminals and you 
have got 2,000-plus beds and you are detaining a lot of other 
folks, as well, including OTMs, pretty clearly, you don't have 
enough bed space for everybody.
    Mr. Lee. Most of those criminals are going to be Mexican 
criminals and not OTMs. I mean, the OTM number is going to be 
small.
    Chairman Kyl. Okay, but the Mexican criminals are dealt 
with in what way? In the Tucson sector, how are they dealt 
with? Aren't they dealt with in an expedited removal manner?
    Mr. Aguilar. I am sorry, Senator--
    Chairman Kyl. Let us say that you have a Mexican criminal. 
How is that individual dealt with in terms of detention and 
release? Are they expedited removal candidates?
    Mr. Aguilar. Yes, sir, they can be, but preferably, the 
removal is going to be a formal removal. In either case, either 
by ER or by formal removal in front of an immigration judge, 
when and if they come back again, they are now eligible for 
prosecution.
    Chairman Kyl. Right. But I guess my point is, if you have 
got 94,700--and the year isn't even up yet, so--
    Mr. Aguilar. That is correct.
    Chairman Kyl. --you are going to be looking at least 
100,000 criminals, criminal aliens, and many of those are going 
to be Mexicans, some are not.
    Mr. Aguilar. Yes, sir.
    Chairman Kyl. But the bottom line is that when you count 
all of the OTMs, and part of that is subsumed in this number, 
but in this number of 100,000 criminals, you can't possibly 
have enough detention space. We are trying to get a handle on 
how much is necessary. I will say that under the bill that 
Senator Cornyn and I have, we not only add money as needed for 
more detention space, but we also, recognizing that we are only 
talking about the informal process here, and Mr. Lee, you 
alluded to the formal removal process requiring the 
administrative judge, as Senator Sessions talked about, that we 
also have money in here for the judges and for the rest of the 
criminal justice system that is required to deal with all of 
these cases, since we recognize that court space, judges, 
clerks, lawyers, all of that is going to be necessary for these 
number of cases.
    But it would be helpful to us if we could get a little bit 
better handle on what the cost of this is going to be, what the 
size of the problem is so that we can fold that into our 
appropriation requests.
    Mr. Verdery. Could I just jump in on that?
    Chairman Kyl. Sure, you bet.
    Mr. Verdery. One of the things that I enjoyed about your 
draft legislation was it recognizes that this--if you think of 
this as almost a business process, you unfortunately have a lot 
of customers that are being picked up and have to be processed 
in some way, and it is a very convoluted process involving 
different agencies, asylum claims, especially for individuals 
who go through a formal proceeding. I saw a chart when I was at 
DHS with the various options of how the legal process can work 
and it made the famous Clinton health care chart look simple. 
It is an unbelievably elaborate process and it has to be 
streamlined as part of this review, things like bond, things 
like ER, and the like.
    The other thing, I will say what these gentlemen are not 
allowed to say, I think. This is not going to take some kind of 
plus-up or shuffling money around. If you want to build out an 
expansive system that can handle the influx, it is going to 
take a massive new amount of money. Now, hopefully, reducing 
the caseload will solve part of that by giving people a chance 
who want to come in to work an organized place to do that, an 
organized way to do that. But this is going to take a good bit 
of money, whether it is coming from fees or fines or the 
general revenue fund. It is not simply a plus-up.
    Chairman Kyl. And let me just say that we recognize that 
this is probably a proposition where, temporarily, we are going 
to have to increase assets significantly, but because of all 
the things that we are working on, hopefully, that peak will be 
reached relatively soon and the number of cases will fall off 
and the detention space, for example, can go back to other 
uses. The judges that we have had to bring on for this purpose 
can go on to doing other things and so forth.
    But I will say that Senator Gregg, the Chairman of the 
Budget Committee and Appropriations Committee, has indicated a 
willingness to put sums of money in to authorize, for example, 
for detention space.
    Let me just ask both Mr. Lee and Chief Aguilar, please get 
something to us on the record that would enable us to be able 
to make the case to Senator Gregg and others to be a little bit 
more precise about what these requirements are so they can plug 
that into their calculations in determining exactly what to 
authorize and eventually what to appropriate here. It will make 
our job a lot easier.
    I guess the summary here is that we are going to need more 
of all of these things. It could be substantial in the short 
run. But in the long run, we all hope that by going this route, 
we can bring the long-term costs down dramatically. Would that 
be a fair summary?
    Mr. Aguilar. Yes, sir.
    Chairman Kyl. Go ahead, Senator.
    Chairman Cornyn. Mr. Lee, we have been asking questions 
about people who are coming across the border and who are being 
detained and the priorities that the Department of Homeland 
Security has for who is detained and who is released on their 
own recognizance and the like. But it is correct, is it not, 
sir, to say that there are many, many more individuals who are 
illegally in the United States and who are currently resident 
in State and county jails or prisons, isn't that right?
    Mr. Lee. Yes, sir.
    Chairman Cornyn. So if you look at the Federal Government's 
responsibilities as opposed to the State and local governments' 
responsibilities in terms of people who commit Federal crimes, 
albeit those by which they illegally enter the country having a 
criminal record or committing other crimes. The numbers we have 
been talking about in terms of detention space to deal with the 
border intrusion issue is really pretty small, isn't that 
right?
    Mr. Lee. Correct.
    Chairman Cornyn. For example, I have been advised that in 
Los Angeles County Jail, where there are approximately 25,000 
inmates, that one estimate is between 30 and 40 percent of 
those inmates are in the United States illegally, but 
nevertheless have been accused of committing crimes and thus 
are incarcerated within a county facility. Those numbers 
wouldn't surprise you, would they?
    Mr. Lee. No.
    Chairman Cornyn. And that, of course, would likely be 
repeated, those numbers higher or lower depending on whether 
you are in a metropolitan area close to the border in Texas, 
Arizona, and other parts of the country. The truth is, while we 
are talking about 20,000 detention beds that the Department of 
Homeland Security for people who come across the border 
illegally and need to be detained, that that just represents a 
fraction of the bed space that is being occupied by people who 
have not only come into the country illegally, but have 
committed crimes while they are here. Would you agree with 
that? Or at least alleged to have committed crimes. I guess we 
ought to give them the presumption of innocence.
    Mr. Lee. Most of our bed space right now is filled with 
individuals that came out of county jails, Federal prisons, 
State prisons. That is most of our population. The 
discretionary beds that we have now are the ones that we are 
using to support Border Patrol. So, yes, most of our beds are 
full of criminals.
    Chairman Cornyn. Well, what resources would you need to 
take into custody, pending their removal, all criminal aliens 
in the United States, including identifying and removing those 
who are currently incarcerated in State and county jails?
    Mr. Lee. I couldn't begin to tell you. Actually, we got 
some--in 2005, we got some enhancements for institutional 
removal program and we are actually just now hiring those up 
and we are going to concentrate in New York and California. But 
traditionally, the program is with the Office of Investigations 
and I would really hate to speak to the numbers and what they 
are.
    Chairman Cornyn. Let me quick to say I feel a little bit 
bad for some of the witnesses and the people particularly like 
those of you who are serving our nation in this very difficult 
position, because we are not being critical of you but we are 
using this opportunity to help educate not only members of 
these Committees, but the Congress and the American people 
about this long-ignored problem that, fortunately, our 
government post-9/11 is finally starting to come to grips with.
    But the reason why we are trying to pin you down on some of 
these numbers is because my own impression is, as I think 
Senator Sessions has said, this nation is in denial about the 
size of the problem and about how much it will take in the way 
of Federal resources to deal with it. Right now, a lot of these 
are dealt with on the local level in border States 
particularly, where, for example, health care services are 
provided free of charge to people who have come into the 
country illegally and it is paid for by local taxpayers, not 
the Federal Government. When it comes to law enforcement, 
detention facilities, jails and prisons, those are paid for by 
State and local taxpayers, not by the Federal Government, when, 
in fact, the Federal border, the international border is a 
Federal responsibility that the Federal Government has simply 
not lived up to its responsibilities to deal with.
    So I just want to make sure it is clear that we are not 
picking on you or any of the witnesses here. We--
    Mr. Lee. And it is not an area that we are ignoring. 
Obviously, it is cherry picking. They are already in custody 
and we are in the process now of putting officers in those 
jails. Like I say, we did get positions in 2005. We are just 
now getting them to the academy and trained. But if you can 
identify a criminal, and in most cases, a lot of cases, you can 
do an administrative removal. They don't have to see a judge. 
It is basically the same process as expedited removal. We can 
get a quick order. We can get it while they still are serving 
their time and we can get them removed without putting them in 
that bed and then starting the whole process.
    So it is an area that we are targeting. Like I say, our 
program did get money in 2005 for it. We just haven't been able 
to get them hired up and on, so--
    Chairman Cornyn. I appreciate you working on it, but the 
point I am trying to make, and this is the only point I am 
trying to make, is that if Los Angeles County Jail has 30 to 40 
percent of their population of 25,000 inmates are here 
illegally in the country, if you multiply that by the county 
jails and State prisons that have undocumented or illegal 
immigrants in the country who have committed or are at least 
charged with committing crimes, that those--that is going to 
take a substantial additional investment by the Federal 
Government to deal with that problem. Would you agree with 
that, Mr. Lee?
    Mr. Lee. Yes, but I wouldn't agree that they are all here 
illegally in the country. The stats that I have seen, they 
identify them as foreign-born, and you can be foreign-born and 
still not be here illegally in the country. So, like I say, I 
just don't know if the stats are right. I hate to speak to the 
Office of Investigations programs.
    Chairman Cornyn. No, I understand. I thought you agreed 
with me, though, that between 30 and 40 percent of the inmates 
at Los Angeles County Jail, it wouldn't surprise you if 30 to 
40 percent of those at the Los Angeles County Jail were 
illegally in the United States.
    Mr. Lee. Or foreign born.
    Chairman Cornyn. Do you want to qualify that now?
    Mr. Lee. Yes. You can be a lawful permanent resident and 
commit a misdemeanor and be in the L.A. County Jail, but you 
are not removable. Once you have served your time, you will be 
released just like the United States citizen will.
    Chairman Cornyn. Okay. I don't want to quibble with you 
over it. So you want to qualify your answer now that you would 
not agree that--it would surprise you if 30 to 40 percent of 
the inmates at the Los Angeles County Jail were here illegally?
    Mr. Lee. Yes.
    Chairman Cornyn. Okay. Mr. Verdery, let me ask you about 
what it is that the United States Government ought to be able 
to expect from our neighbors like Mexico and those countries 
that would perhaps benefit from a temporary worker program. I 
believe you indicated that we should seek to obtain commitments 
from the Mexican government to redouble efforts to secure their 
Southern border, and we have heard some of the problems about a 
porous Southern Mexican border which makes that available to 
people from Central America and South America, assisting with 
anti-smuggling and document fraud investigations and 
operations.
    What kind of obligations do you think we should ask for a 
country that will benefit from a temporary worker program 
allowing their citizens to work for a time in the United 
States, what kind of obligations should we expect them to 
accept in terms of working with us on these sorts of matters?
    Mr. Verdery. I think the key word is, I think was in my 
testimony, is redouble. I wouldn't want to leave the impression 
that this is some kind of relationship that is just on the 
front end. There is so much good work being done between the 
U.S. and Mexico, especially with ICE attaches overseas in 
Mexico City and the likewise. So it is a question of kind of 
expanding those efforts.
    You can think of it in a couple different camps. One, as 
you mentioned, is trying to secure the exterior Mexican border 
against OTMs or others coming to Mexico and using that as a 
pipeline to the U.S. So that is people literally coming across 
a land border, their Southern border, or people coming in via 
air or sea, and that is hwy the robust information sharing 
agreements that were talked about in the, I forget what it 
stands for, but the SPP that the President and President Fox 
announced a couple months ago on information sharing is so 
critical.
    On the kind of the border itself, we need just to heighten 
and expand and more regularize the intel flow to break up the 
smuggling rings, and I think the ICE investigation folks would 
say that the cooperation is getting better. It needs to improve 
even more.
    The third thing I would mention is just a deterrence by the 
Mexican government at their own border of their people crossing 
illegally. We saw an impressive show of force by the Mexican 
government during the recent months during the Minuteman 
project era, if you want to call it that, which I think led to 
a massive drop in crossings during that period. Having a 
similar commitment all the time, trying to police their border, 
would be very helpful.
    And that is just a few things, and my testimony goes into a 
number of others.
    Chairman Cornyn. Let me ask--I want to ask you about US-
VISIT. Would you give us your opinion on how do you think the 
US-VISIT program has functioned so far and what time period do 
you see as a realistic expectation that US-VISIT will be--
before it will be a fully functioning system where it will be 
the centerpiece for tracking visitors who enter the United 
States?
    Mr. Verdery. I think it is functioning extremely well. If 
you had told me where we have gotten to by this point when I 
walked into DHS two years ago, it would have seemed impossible 
to actually deploy a working system at our airports and 
seaports that functions without interfering with traffic and 
has found, I think it is up to 600 bad folks, people with good 
forged documents and the like. It is working extremely well in 
that environment.
    The land border situation is about the toughest task I have 
ever seen the government take on, to try to vet literally 
millions of people coming through without backing up lines, as 
you know so well, both of you, at your ports of entry. It is 
going to require a lot of private sector expertise, and 
especially if we are going to make US-VISIT the backbone for 
the employment-based system that any type of temporary worker 
program would need to have to function.
    Essentially, as much as I support, and I do support the 
enhancements on the Border Patrol and number of agents--I think 
that has been great--at some point, it would almost be better 
to turn and find 500 smart guys to go design the IT systems and 
the like that will allow that insta-check for employment 
systems to work. If Visa or MasterCard can build up where you 
can swipe your card at millions of locations and it works in 
three seconds, we ought to be able to have a similar capability 
at our places of employment.
    So I think it is working well, but the deployment at the 
land borders is going to be very tough. We are going to need a 
lot of cooperation from the Mexican government especially to 
get people accustomed to coming through the ports of entry, to 
retrofit those travel documents to allow for the biometric 
capture via RFID and a lot of outreach to those communities. I 
would think that you all would be part of that.
    Chairman Cornyn. I have to say that, as you and I have 
discussed in your previous life at the Department of Homeland 
Security, I was very pleased, as were a number of our border 
communities in Texas, with the care and thoughtfulness with 
which the Department of Homeland Security implemented US-VISIT 
at the land-based points of entry. I know there was a lot of 
apprehension that it would back things up, but due to a lot of 
conversations, a lot of hard work by an awful lot of people and 
a lot of collaboration, that proved not to be the case. As you 
say, it has been successful in identifying bad people with good 
forged documents, as you say.
    Mr. Verdery. It was always designed to be an incremental 
system and I would have to single out, since we are in 
Washington, that the Washington Post story that ran last week 
critical of US-VISIT, which I think completely missed the point 
of the program, did not understand it is being built in 
increments, and we obviously have the toughest one left to do, 
which is building out an entry and exit at the land border. But 
again, it is working great so far and we need that 
technological solution to be able to move people in and out and 
find the needles in the haystack moving forward.
    Chairman Cornyn. Thank you very much.
    Chairman Kyl. Let me see if I can make this the last round 
here. Real quickly, first of all, Chief Aguilar, can you inform 
us on the status of the memorandum of understanding that Border 
Patrol is attempting to arrange with the Tohono O'odom Nation 
in Arizona as part of the effort to gain access to interior 
lands?
    Mr. Aguilar. The ongoing efforts of the Tohono O'odom 
Nation will include both a formal and informal understanding, 
if you will. At the current time, the Tohono O'odom Nation 
recognizes the importance of things such as drive-through 
barriers, now that they have seen the successes over in the 
Organ Pipe and those areas out there. So they have agreed to 
work with us in working towards the application of tactical 
infrastructure, the application of applying some of the rescue 
beacons, for example, remote video surveillance systems, and 
things of this nature.
    One of the main successes we have had with the Tohono 
O'odom Nation has been the multi-use facility that is now, in 
fact, in use. I was just there last week, working out 
tremendously. So we are moving towards those memorandums of 
understanding and the informal agreements that would allow us 
to place the infrastructure and technology that we feel is 
necessary to bring the level of control to the nation out 
there.
    Chairman Kyl. Good. I would appreciate being kept up to 
date on that, and particularly as we get into the appropriation 
process. There have been some requests for funding. We want to 
make sure that everything is coordinated there.
    Mr. Lee, do you know how many nationalities are represented 
in the removals of the OTM program, approximately?
    Mr. Lee. A lot of nationalities.
    Chairman Kyl. How many different countries or 
nationalities?
    Mr. Lee. There are over 100.
    Chairman Kyl. Okay. Now, let me go back to the question 
that Senator Cornyn asked. Maybe this is another way to look at 
it. As you know, the SCAAP program, or State Criminal Alien 
Assistance Program, provides Federal funding to help to make up 
for the cost that the States incur in housing the illegal 
immigrants who are convicted of crimes in the States and 
imprisoned there, right?
    Mr. Lee. I am familiar with a little bit. It is not really 
under my program, but--
    Chairman Kyl. Okay. Well, maybe then you are--that program, 
in very rough terms, would cost about $2 billion to compensate 
the States for their incarceration costs and that is for, as I 
understand it, for criminal aliens. In other words, these are 
not people who are lawful residents but foreign-born. You can't 
comment on that, though, is that right?
    Mr. Lee. No, but I can sure pass it on to the right 
division.
    Chairman Kyl. We can get the answer to that. The bottom 
line is that while there may be some foreign-born legal 
residents in the United States who are criminals and thus using 
some of these detention beds, a very high percentage are 
criminal aliens, is that not correct?
    Mr. Lee. I believe so.
    Chairman Kyl. Okay. Mr. Verdery, my last couple of 
questions relate to some of the testimony that you presented 
having to do with integrating a new guest worker program with 
the other efforts to control illegal immigration by controlling 
the border, by controlling the interior, and this element is by 
controlling or by enforcing the law at the workplace. Senator 
Cornyn and I have focused on all three in our legislation. We 
believe that there has to be a balance between controlling the 
border, controlling interior enforcement, and workplace 
enforcement, all three.
    With regard to the workplace enforcement, you identified at 
least one of the critical components, and that is a biometric 
identification system that can verify the appropriateness to 
issue some kind of legal document to someone who has been in 
the country illegally but who presumably poses no threat, is 
not a criminal, and who would, therefore, be eligible for a 
legal program, a document that would be required to be verified 
prior to employment, right?
    Mr. Verdery. That is right.
    Chairman Kyl. It would take something to have a system for 
issuing such documents, first of all, for verifying the data 
necessary to issue the document, for issuing the document, and 
then for having in place both the employer verification system 
and the enforcement mechanism. It would take something to have 
all of those things in place were we to be able to get past a 
temporary worker program along the lines that you have heard 
described in different pieces of legislation, right?
    Mr. Verdery. That is right. You need to build out this 
capability which exists only on biographic information on a 
voluntary basis now.
    Chairman Kyl. Right. Can you talk a little bit to us about 
what some of the things are that you think would be necessary 
to put that in place, what you would have to have in place 
before you actually commenced the process, any estimates of 
cost? In other words, just to give folks some magnitude 
information about what we are talking about here in 
implementing an enforceable temporary worker program that would 
include people who have come here illegally.
    Mr. Verdery. Well, in terms of tasks, there is the task 
list and how much it would cost, and that cost can fall 
partially on the employee, partially the employer, and 
partially probably on the government.
    I do believe the employer community is willing to pay if 
they can have a reliable source of labor, especially if it 
includes the labor that they have already hired and is already 
developing skills and community ties and the like.
    The cost of the biometric card itself is not astounding. We 
issue biometric issues and biometric border crossing cards all 
the time. So that is not the problem. The problem is, how do 
you get it in the hands of the person and feel comfortable that 
it is who they say they are? In kind of corresponding levels of 
security, you could essentially have the employer do it. They 
could send in applications and you send back the card. I think 
that is probably the weakest. You could have them go to a 
government facility, an ICE or CIS office, and be fingerprinted 
and have that background check. Or, as some have suggested, you 
could have them leave the country and essentially apply for a 
visa overseas.
    It strikes me that the middle ground is probably the place 
to go. You want to lock down that person's biometrics. You want 
to make sure that it is not a forgery. You want to have the 
faith of the government having taken those prints and then you 
can kind of build out the credibility on top of that.
    I wouldn't want to venture a guess as to how much the 
insta-check system would cost to build out, you know, the phone 
lines and the IT information to link into Wal-Mart and 7-Eleven 
and every other employer around the country. I know it will be 
a good amount, but--
    Chairman Kyl. Let me just interrupt on a couple of things 
there.
    Mr. Verdery. Sure.
    Chairman Kyl. First of all, there are two key pieces of 
information that you want in this card, are there not? First, 
the biometric data that tells you that the person standing in 
front of you is the person whose card you have. In other words, 
the person is who he or she claims to be.
    Mr. Verdery. That is right.
    Chairman Kyl. So you get the match on identity. And 
secondly, the basic data that you need to make the decision 
that you are making, in this case, an employment decision. You 
need to know that the person is not a criminal, is in the 
country legally one way or another, a citizen, a green card 
holder, a blue card holder, a student who is qualified to be 
employed, or whatever. That information is only as good as the 
inputted information, which means that you have to have either 
good breeder documents or a good system to check the 
information as it is presented, which kind of obviates the 
first type of verification system that you identified. It 
pretty much would require some kind of interview process with 
presentation of documents that can be checked, would it not?
    Mr. Verdery. Presumably, the employer is going to have to 
demonstrate that they either have advertised the position and 
can't find an American worker or have already filled the 
position where the job was unlikely to be filled with an 
American citizen, so--
    Chairman Kyl. Excuse me--
    Mr. Verdery. Sure.
    Chairman Kyl. --but that is a different issue. What I am 
getting at is that the person who you are about to offer the 
employment to, whose card you are going to swipe through the 
machine, is, in fact, entitled to participate in this 
particular program, in this employment.
    Mr. Verdery. That is right. I mean, the company will have 
to get a certification from whoever this is assigned to, the 
Labor Department, the Social Security Administration, DHS 
perhaps, that they are entitled to work or continue to work.
    Chairman Kyl. So somehow or other, for them to do that 
certification, somebody is going to have to present some 
documents to them and those documents, to one degree or 
another, need to be verified.
    Mr. Verdery. That is right, and that is the underlying rub, 
is how secure those documents are, with drivers' licenses and 
the right.
    Chairman Kyl. So the breeder documents and the verification 
process is probably the long pole in this tent. At least, that 
has been my view.
    With regard to the machinery itself, on the laser visas, 
for example, from Mexico, the machines are relatively 
inexpensive, and that is with having produced only a few. We 
did an estimate. If you just take the $2,000 cost per machine 
and you put one in every post office in the country, it is only 
$64,000. I think that that part of the process could be 
relatively inexpensive, and as you point out, the technology is 
there. Do you have any disagreement with that?
    Mr. Verdery. I don't, and especially if, again, the theory 
is that many of these individuals are going to want to travel 
back and forth and, therefore, they are going to need some type 
of retrofitted document that can be read wirelessly.
    Chairman Kyl. Right.
    Mr. Verdery. So they are going to have to have a new 
document anyway to allow for that travel.
    Chairman Kyl. Right. So I think that the key expense is 
going to be in this verification of status and making sure that 
the breeder documents and that initial determination are valid. 
But your view is that this process better be pretty well in 
place before we start it--well, I guess, instead of assuming 
the answer, let me ask it.
    Mr. Verdery. I think--
    Chairman Kyl. Go ahead.
    Mr. Verdery. I think you could have essentially a 
bifurcated system that treats people who are already here 
somewhat differently for a time being as opposed to new people 
who want to come in, and eventually, you want a merged kind of 
system. But I can see a transition phase where folks who are 
here are treated somewhat differently for a period of time as 
opposed to people who are coming in from overseas. And again, 
the temporary worker program is not just aimed at Mexico. You 
could be coming in from anywhere under the theory the President 
has espoused and others. But you need that transition piece to 
make it work.
    Chairman Kyl. And it has got to be ready to go before the 
system begins, that is to say, before the person can be legally 
employed, you are going to have to have the documents checked, 
issued, the machinery in place, employer verification process 
ready to go.
    Mr. Verdery. I would suggest that for new entrants to the 
country, that definitely should be a prerequisite, that you 
have a check in place. For existing workers, I think that is 
going to take time to build out. So you could have a situation 
where employers wanting to bring in new labor are the first in 
line, and then people who are using existing labor come on 
afterwards, if you can't build it all at once.
    Chairman Kyl. With Senator Cornyn's concurrence, let me ask 
one last question here. Are you not also going to have to have 
some identification for American citizens or green card holders 
or other lawful residents of the United States to avoid the 
problem of discrimination when an employer asks for the proper 
documentation from someone who informs that prospective 
employer that he doesn't need proper documentation because 
while he may look like he is not American or have some kind of 
an accent, he is very much an American citizen or other lawful 
resident? So there is going to have to be some documentation 
there, too, isn't there?
    Mr. Verdery. The Social Security Administration is going to 
have a tough job, yes.
    Chairman Kyl. Okay.
    Mr. Verdery. When you think of the number of workers that 
need to be vetted and the error rate that would be acceptable 
to our economy, it is a tough, tough business. And that is why 
I suggest again that you might not want to deploy it kind of 
all at once to every employer around the country at once. You 
may want to have a tiered or a phased system that catches new 
entrants first and then catches up with the existing ones.
    Chairman Kyl. And the only comment I would have on that is 
that we are trying to do this in a very skeptical atmosphere, 
let us put it that way, where at least my constituents have 
said, we want to make sure you are going to enforce this new 
law before you pass it, because in the past, you haven't and it 
has resulted in amnesty. Okay, that is fair. I think that puts 
a burden on us, however, to make sure that everything is in 
place for that enforcement, the resources, the commitment, and 
the ability to do so before we begin the process or there is 
going to be a high degree of skepticism. So this is part of 
what we are going to have to try to identify in terms of our 
needs and requirements before actually beginning to implement 
such a program.
    And while I don't reject the idea of some kind of 
calibrated enforcement that may well be necessary, by the same 
token, folks are not going to want to have to rely upon a lot 
of good faith there because they have seen the government fail 
them in the past.
    Mr. Verdery. A series of hard dates might be the kind of 
middle ground that might work.
    Chairman Kyl. I appreciate your expertise on this and I 
will make that my last question and turn to Senator Cornyn.
    Chairman Cornyn. I just have a couple more questions. First 
of all, I am just curious, Chief, this dramatic increase in the 
number of OTMs being apprehended, and as you noted, a large 
percentage of those coming in through the McAllen sector in 
South Texas. What do you attribute the dramatic increase in the 
number of other than Mexican individuals who are being 
apprehended this year as opposed to previous years?
    Mr. Aguilar. One of the obvious things, Senator, is the 
rate at which we are releasing on own recognizance. The other 
one, specifically to Brazilians, is the lack of requirement of 
a visa into Mexico that just facilitates that entry into the 
United States. Last year, for 2004, the OTM release rate 
nationwide was about 47 percent. It is now up to 70. Last year 
in McAllen, it was about 61 percent. It is now at 91 percent. 
The bulk, majority of those, are Brazilians. So a combination 
of those things, but definitely detention would, in fact, equal 
deterrence, and that is one of the things that I think we are 
all in agreement in.
    Chairman Cornyn. Thank you very much.
    Mr. Verdery, let me ask you, just to follow up on the 
question Senator Kyl had, and he propounded to you a very 
practical concern that we have, that is namely identifying 
people who can legally work in the United States and providing 
a mechanism for a prospective employer to determine that 
relatively easily. But then, how do we deal with a means to 
basically require some sort of identification by everybody 
rather than have employers ask people for identification based 
on the way they look or based on their accent, which has 
obvious problems with it.
    Is there any way to accomplish all of these goals while 
avoiding the objection by those who would vigorously oppose a 
national ID card?
    Mr. Verdery. That is a very tough question, and as I have 
talked to employers, it is one of the things that they complain 
about, is that the government has essentially put them in an 
impossible situation where they can't ask the questions that 
they would need to ask to ascertain legitimacy of a would-be 
employee, even if they wanted to do the right thing.
    I do think, though, as you come into a generation of better 
drivers' licenses with the recent action by the Congress and 
then the States implementing this over the next few years, 
better Social Security cards and better linkages amongst those 
databases, you could have a situation where an employee or a 
would-be employee walks into a place of employment and is given 
a form saying, you need to provide one of the following so we 
can vet your appropriateness for employment: A drivers' license 
that is properly secured, a Social Security card that can't be 
issued to somebody who is not allowed to work, or this new 
guest worker card or other appropriate visa. Each of those 
documents has to be secure. But I think we are moving in that 
direction. It is just a question of how fast.
    Chairman Cornyn. I appreciate that answer. Of course, I 
think the sort of--the reason why I believe, and I think 
Senator Kyl would agree with me, why comprehensive reform is 
important rather than the sort of rifle shot or piecemeal 
approach is we need to, I think, take advantage of every means 
available to us to try to begin to apply a pincer movement, so 
to speak, on the problem rather than just deal with one aspect 
of it, let us say a temporary worker program, and try to say 
that, well, we are going to deal with all of our immigration-
related and economic immigrant sort of problems through that 
mechanism.
    What we are proposing is we not only enhance that border 
security to deal with people as they come across illegally, 
including the detention space, we are also going to provide 
resources for interior enforcement, which we do next to nothing 
about now. And then we are also going to deal with a workable 
mechanism for prospective employers to deal with prospective 
employees to determine who can legally work in the country.
    I think through these mechanisms, through this at least 
three-prong approach, that we will have a much better chance of 
dealing with a problem that right now is essentially out of 
control.
    I want to just say, in conclusion, thank you again to each 
of you for your willingness to appear here today and to answer 
tough questions and to help us hopefully come up with some 
meaningful solutions. Thank you, Mr. Chairman.
    Chairman Kyl. Thank you, and I want to conclude by 
indicating that any of the members of the Subcommittees who 
wish to submit statements, their statements will be taken for 
the record. We should probably allow a couple of days for 
submission of any written questions to our panelists, and I 
would appreciate your cooperation. I have just got a couple 
about--well, basically the statistics that I asked you for, if 
you can get them to me.
    We really do appreciate your testimony, as Senator Cornyn 
said, and the really good ideas about how to constructively 
deal with the problems. We started the hearing out talking 
about the problems, the fact that we have got far too many 
people who are released on their own recognizance who don't 
show up, not enough detention space. We have an expedited 
removal process that is working very well that actually deters 
violation, but we need to expand that to the entirety of the 
border.
    All of these items need to be calculated, basically, for us 
to determine what we need to do in our legislation and what the 
costs of that will be, because Senator Cornyn and I very much 
want to end up here with a constructive piece of legislation 
that provides a maximum control of the border, provides maximum 
enforcement in the interior, and provides the most workable and 
enforceable workplace program, as well.
    With a combination of all of those, we obviously hope to 
eventually end this problem of illegal immigration while 
satisfying all of the requirements that our immigration laws 
generally seek to meet, including providing enough workers in 
our country. It is not going to be easy, but with the help of 
people like yourself, we can make it happen. So again, we thank 
you very much for your testimony today.
    The hearing is adjourned.
    [Whereupon, at 4:30 p.m., the Subcommittees were 
adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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