[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
CROSSING THE BORDER: IMMIGRANTS IN DETENTION AND VICTIMS OF TRAFFICKING
PART I AND II
=======================================================================
HEARING
before the
SUBCOMMITTEE ON BORDER, MARITIME, AND GLOBAL COUNTERTERRORISM
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 15, 2007
__________
Serial No. 110-16
__________
Printed for the use of the Committee on Homeland Security
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COMMITTEE ON HOMELAND SECURITY
BENNIE G. THOMPSON, Mississippi, Chairman
LORETTA SANCHEZ, California, PETER T. KING, New York
EDWARD J. MARKEY, Massachusetts LAMAR SMITH, Texas
NORMAN D. DICKS, Washington CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California MARK E. SOUDER, Indiana
PETER A. DeFAZIO, Oregon TOM DAVIS, Virginia
NITA M. LOWEY, New York DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of MIKE ROGERS, Alabama
Columbia BOBBY JINDAL, Louisiana
ZOE LOFGREN, California DAVID G. REICHERT, Washington
SHEILA JACKSON LEE, Texas MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin CHARLES W. DENT, Pennsylvania
Islands GINNY BROWN-WAITE, Florida
BOB ETHERIDGE, North Carolina MARSHA BLACKBURN, Tennessee
JAMES R. LANGEVIN, Rhode Island GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY
Jessica Herrera-Flanigan, Staff Director & General Counsel
Todd Gee, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
______
SUBCOMMITTEE ON BORDER, MARITIME, AND GLOBAL COUNTERTERRORISM
LORETTA SANCHEZ, California, Chairwoman
JANE HARMAN, California MARK E. SOUDER, Indiana
ZOE LOFGREN, California BOBBY JINDAL, Louisiana
SHEILA JACKSON LEE, Texas DAVID G. REICHERT, Washington
JAMES R. LANGEVIN, Rhode Island MICHAEL T. McCAUL, Texas
HENRY CUELLAR, Texas GUS M. BILIRAKIS, Florida
AL GREEN, Texas PETER T. KING, New York (Ex
BENNIE G. THOMPSON, Mississippi (Ex Officio)
Officio)
Alison Rosso, Director
Denise Krepp, Counsel
Carla Zamudio-Dolan, Clerk
Mandy Bowers, Minority Senior Professional Staff Member
(ii)
C O N T E N T S
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Page
Part I:.......................................................... 1
STATEMENTS
The Honorable Loretta Sanchez, a Representative in Congress From
the State of California, and Chairwoman, Subcommittee on
Border, Maritime, and Global Counterterrorism.................. 1
The Honorable Mark E. Souder, a Representative in Congress From
the State of Indiana, and Ranking Member, Subcommittee on
Border, Maritime, and Global Counterterrorism.................. 2
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security.............................................. 3
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas........................................ 49
Witnesses
Thursday, March 15, 2007
Panel I
Mr. John P. Torres, Director, Office of Detention and Removal
Operations (DRO):
Oral Statement................................................. 5
Prepared Statement............................................. 6
Panel II
Mr. Richard P. Seiter, Executive Vice President and Chief
Corrections Officer, Corrections Corporation of America:
Oral Statement................................................. 22
Prepared Statement............................................. 24
Michelle Brane, Director, Detention and Asylum Program, Women's
Commission for Refugee Women and Children:
Oral Statement................................................. 26
Prepared Statement............................................. 29
Ms. Christina Fiflis, Member, Commission on Immigration, American
Bar Association:
Oral Statement................................................. 36
Prepared Statement............................................. 39
Mr. Michael Cutler, Fellow, Center for Immigration Studies:
Oral Statement................................................. 42
Prepared Statement............................................. 44
Part II:......................................................... 57
Tuesday, March 20, 2007
Panel I
Mr. Gabriel Garcia, Program Manager, Human Smuggling and
Trafficking Unit, Office of Investigations, Immigration and
Customs Enforcement (ICE):
Oral Statement................................................. 60
Prepared Statement............................................. 62
Panel II
Mr. Victor X. Cerda, Partner, Siff & Cerda LLP:
Oral Statement................................................. 88
Prepared Statement............................................. 90
Ms. Ann Jordan, Program Director, Initiative Against Trafficking
in Persons, Global Rights:
Oral Statement................................................. 79
Prepared Statement............................................. 81
Lt. Derek Marsh, Co-Director, Orange County (CA) Human
Trafficking task Force:
Oral Statement................................................. 73
Prepared Statement............................................. 74
Appendix
For the Record
Prepared Opening Statements:
Thursday, March 15, 2007
Hon. Sheila Jackson Lee...................................... 101
Hon. Bennie G. Thompson...................................... 104
Tuesday, March 20, 2007
Hon. Sheila Jackson Lee...................................... 105
Hon. Mark Souder............................................. 106
CROSSING THE BORDER: IMMIGRANTS IN DETENTION AND VICTIMS OF TRAFFICKING
PART I
----------
Thursday, March 15, 2007
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border, Maritime,
and Global Counterterrorism,
Washington, DC.
The subcommittee met, pursuant to call, at 10:20 a.m., in
Room 311, Cannon House Office Building, Hon. Loretta Sanchez
[chairwoman of the subcommittee] presiding.
Present: Representatives Sanchez, Jackson Lee, Thompson,
Souder, and McCaul.
Ms. Sanchez. [Presiding.] The subcommittee will come to
order.
The subcommittee is meeting today to receive testimony on
``Crossing the Border: Immigrants in Detention and Victims of
Trafficking, Part I.''
Good morning, everyone. Thank you for being with us today.
Today's hearing is the first in a two-part series that will
examine the issues surrounding the treatment of migrants by
Immigration and Customs Enforcement. And the first of the
series, this hearing today, we will have two panels, which will
primarily focus on the issue of detention.
I would like to begin by thanking our witnesses: Mr. John
Torres, Mr. Richard Seiter, Ms. Michelle Brane, Ms. Christina
Fiflis, and Mr. Michael Cutler. And thank you for joining us
today to discuss these important issues.
With the end of the ``catch and release'' program, the
Department of Homeland Security faces a daunting challenge: how
to deal with hundreds, perhaps thousands, of migrants that have
been detained in recent enforcement actions.
But the challenge is not only for law enforcement. It is
also a humanitarian challenge. Our goal must not only be to
detain migrants, but also to make sure that their detention is
humane. And at the same time, we must explore alternatives to
detention that meet our law enforcement goals and that may
provide more humane conditions for these detainees.
Recently, reports have signaled that detention conditions
and the treatment of detainees in administrative immigration
detection have not been acceptable. I have found these reports
very disturbing, and so have many of my colleagues. And I hope
that this hearing will shed some light on the situation and
lead to action points by which we can improve the conditions of
these detainees.
And I am particularly interested in learning more about the
Immigration and Customs Enforcement standards for care and
custody of these detainees. These standards need to include a
guarantee for detainees to be treated humanely and, of course,
to have access to counsel.
It is also critical that the subcommittee gain a better
understanding of how ICE and their detention contractors work
together to meet these minimum standards. In addition, I am
looking forward to hearing about alternatives to detention that
can appropriately monitor individuals but ensure that they show
up to all the necessary hearings.
As a nation, we must be committed to treating detainees
appropriately, with respect for their dignity as fellow human
beings and in accordance with our laws, our traditions, and,
quite frankly, the idea of this great country.
Recent reports indicate that we have some work to do before
we achieve all of this, and I hope this hearing gives us some
sense of the progress that we have made on these issues.
And I would like to thank Ranking Member Souder for his
interest in this topic, and I look forward to working with him
on this and on other issues of importance in the future.
Thank you.
And now the chair will recognize the ranking member of the
subcommittee, the gentleman from Indiana, for his opening
statement.
Mr. Souder. Thank you very much, Madam Chair.
And I appreciate that this is our third hearing of this
subcommittee already this Congress, all of which have focused
on border security, gaining operational control over the
borders of the United States, land, air and coastal is
essential for national security, as it is ensuring that
individuals who enter the U.S. illegally or bringing narcotics
or other contraband traffickers are held accountable and
removed as quickly as possible.
I would also like to thank our witnesses for being here
today. I look forward to receiving an update from the Office of
Detention and Removal Operations on what is needed to maintain
the end of ``catch and release'' and the response, as well as
from Mr. Richard Seiter from Corrections Corporation of
America, to recent criticisms of detention standards.
I would also like to thank Michelle Brane and Christina
Fiflis for being here, and I look forward to hearing more about
the concerns your organizations have raised.
I would also especially like to welcome Mr. Michael Cutler
and express my appreciation for your presence here today. I
think you will add important insight and context to this
discussion, based on your wealth of experience in the legacy
Immigration and Naturalization Service and current work with
the Center for Immigration Studies and other security advocacy
groups.
The ability to detain illegal aliens prior to removal or
admittance to the United States has proven to be a successful
and critical homeland security tool. With the additional
funding provided by Congress, DHS has been able to end the
``catch and release'' program along the border, where illegal
aliens were released into U.S. communities because there was no
available bed space. More than 90 percent of these people never
appeared for their court dates, and we have no idea where they
are or what they are doing.
In fiscal year 2007, the Office of Detention and Removal
was able to detain about 27,000 illegal aliens each day.
Congress needs to conduct careful oversight over the available
bed space to make sure that the DRO has the capacity, now and
in the future, to continue to detain all aliens apprehended.
Additionally, I think we need to carefully consider options
to further deter Mexican citizens from illegally entering the
U.S. And while more physical border security will help, we may
need to consider some detention possibilities.
The knowledge that they would not be detained actually led
to non-Mexican illegal aliens to actually seek out Border
Patrol agents and declare their illegal status. They were
picked up, processed, given a notice to appear before an
immigration judge at some later date, and then taken to the
nearest bus stop to go wherever they want in the U.S.
In addition to the increase in detention bed space, DHS is
finally taking advantage of the available enforcement tools
that have been in the law for years. The expedited removal
program, utilized by DHS for the past 2 years, allows illegal
aliens not seeking asylum or expressing credible fear to be
placed in immediate detention proceedings.
This program has allowed DHS to reduce the average
detention stays for non-asylum seekers from 90 days down to
about 20 days. The bottom line is that detention has proven an
effective and critical tool in deterring aliens from illegally
entering the United States, because they know they will be
detained, pending removal.
Some concerns have been expressed about individuals with
legitimate asylum claims being overlooked and mistakenly placed
in expedited removal. This concern is something that must be
continually reviewed to ensure that our border agents are well-
trained to understand their responsibility to identify
individuals with claims of fear.
There has recently been criticism of detention standards in
DHS facilities. I believe that we have several witnesses here
today to speak to these criticisms. There is no argument that
we need to ensure that our detention facilities are secure,
provide adequate nutrition, access to legal services where
applicable, and run efficiently to process people through to
either legal status within the U.S. or removal.
I look forward to hearing from our witnesses about how the
detention system works, how it is being used to enhance Border
Patrol, and where improvements are needed.
Thank you, Madam Chair, for your leadership. And I yield
back.
Ms. Sanchez. Thank you.
And the chair now recognizes the chairman of the full
committee, the gentleman from Mississippi, Mr. Thompson, for an
opening statement.
Mr. Thompson. Thank you very much, Madam Chairman.
I am pleased that the subcommittee is holding the hearing
today on an issue that has been of a great deal in the news
lately.
I have long supported ending the policy of ``catch and
release,'' under which non-Mexicans who entered the U.S.
without proper documentation were issued a notice to appear at
a future hearing and then released. Of course, the overwhelming
majority of these people did not appear for their hearing, but
instead made their way to the interior of the country and
disappeared into American society.
It is clear that ``catch and release'' was a failed policy.
However, I am deeply concerned about the consequences of the
department's new policy, often called ``Catch and Return.''
Under this policy, virtually all other-than-Mexicans are being
detained at facilities, either operated by or under contract to
ICE, until they are returned to their country.
One of the issues I am concerned about, Madam Chairman, is
the fact that, you know, families with children are also being
held in these facilities. And I want to know from our first
witness today what measures are being taken when children are
involved in this situation, also, because, as you know, there
are potential civil rights and civil liberties issues
associated with it, as well as the general welfare of the
children who are detained.
So I intend to work with my colleagues to ensure that, as
the department implements tougher border enforcement and
detention policies, we do so in a way that honors the rights
and values that make our country great.
Mr. Thompson. So I look forward to the testimony, Madam
Chairman, and I yield back.
Ms. Sanchez. Thank you, Mr. Chairman.
Other members of the subcommittee are reminded that, under
the committee rules, opening statements may be submitted for
the record.
So I welcome our sole witness on our first panel, Mr. John
Torres, who is the director of the Office of Detention and
Removal Operations of Immigration and Customs Enforcement. As
director, Mr. Torres oversees 6,700 employees, including nearly
6,000 sworn law enforcement officers assigned to 24 field
offices, and manages an operating budget of nearly $2 billion.
Prior to his appointment as director, he served as the
acting DRO director for 15 months, overseeing unprecedented
expansion of this program. Mr. Torres previously served as
deputy assistant director for smuggling and public safety in
the ICE Office of Investigations and as a special-agent-in-
charge of the Newark ICE office, where he oversaw ICE's
participation in several major multi-agency investigations.
Mr. Torres began his law enforcement career with the former
Immigration and Naturalization Service in 1986.
And so, without objection, the witness's full statement
will be inserted in the record.
And I now ask you, Mr. Torres, to summarize your statement
for 5 minutes or less.
STATEMENT OF JOHN P. TORRES, DIRECTOR, OFFICE OF DETENTION AND
REMOVAL OPERATIONS (DRO), IMMIGRATION AND CUSTOMS ENFORCEMENT
(ICE)
Mr. Torres. Good afternoon, Madam Chairwoman Sanchez and
Ranking Member Souder, Congressman Thompson and distinguished
members of the subcommittee.
My name is John Torres. I am the director of the Office of
Detention and Removal Operations at Immigration and Customs
Enforcement. And it is my privilege to appear before you to
discuss the enforcement mission of Detention and Removal
Operations, or DRO.
Our office is responsible for promoting public safety and
national security by ensuring the safe and efficient departure
from the United States of all removable aliens through the fair
enforcement of our nation's immigration laws. As such, our core
mission is the apprehension, detention, and removal of
inadmissible and deportable aliens.
The Office of Detention and Removal employs a number of
tools to accomplish this mission. Using these tools, we have
achieved considerable success in executing our mission. Some of
the successes I will describe as follows.
We have increased detention capacity, thanks to Congress
and the administration, with added resources. Since 2006, ICE
has increased detention capacity by more than 7,500 beds in
Alabama, Arizona, California, Georgia, New Mexico and Texas.
We have improved detention management. In addition to
adding detention resources to prevent the release of illegal
aliens, ICE has achieved a number of important successes in
appropriately deploying this added capacity, such as utilizing
larger regional detention facilities, creating a Detention
Operations Coordination Center at our headquarters, and
restructuring the detainee transportation system, and also
expanding the use of alternatives to detention.
We have expanded the use of our legal authority. In 2006,
the Department of Homeland Security utilized expedited removal
authority under the Immigration and Nationality Act to
streamline the processing of aliens arrested at the border.
We have also made numerous technological enhancements. In
addition to increased detention capacity, improved management
of that capacity, and mechanisms to improve removal and
transportation processes, DRO has also used technological
tools, such as an electronic travel document system and video
teleconferencing capability, to streamline the removal process
and reduce the number of days that people spend in detention.
Combined these tools have allowed DRO and DHS to realize
significant and concrete gains in the detention and removal of
illegal aliens, ultimately ending the practice of ``catch and
release'' along the borders, something that people did not
think could be done a year and a half ago.
The one loophole that remained, as we were ending ``catch
and release,'' was the practice of ``catch and release'' for
families arrested on the border. This former ``catch and
release'' practice created a border vulnerabilities that
encouraged families to smuggle their children across the
border, knowing that they would be released into the community.
In my 20-year career, I have seen too many pictures of
children that have died in the back of 18-wheelers, vans and
railroad cars while being smuggled into this country at the
hands of callous smugglers who are driven by profits.
To deter this activity and to end ``catch and release'' at
our borders, ICE created a family residential center in Texas,
and it allows families to stay together in an appropriate
setting.
In addition to adding detention space, we also expanded our
alternatives to detention program to add enrollees to the
program and reduce the costs of monitoring these enrollees
under supervision. Under this program, the electronic
monitoring program uses radio frequency ankle bracelets and
telephonic reporting systems to remotely manage detention
cases.
In addition, our intensive supervision appearance program
utilizes home and office visits, mandatory curfews, as well as
radio frequency ankle bracelets as an effective alternative to
case management techniques.
In addition to these gains, and consistent with DRO's
mission to promote public safety and national security, DRO has
committed significant resources to the apprehension, detention,
and removal of criminal and fugitive aliens.
With our criminal alien program, for example, ICE has
worked very aggressively to transition that program from our
Office of Investigations over to the Office of Detention and
Removal Operations, where we can make the most of our
specialized administrative immigration processing capabilities
and expertise the streamline these removals.
In June of 2006, DRO established the National Detention
Enforcement and Processing Offenders by Remote Technology, or
the DEPORT Center, in Chicago, that supports the screening,
interviewing, and removal processing of criminal aliens that
are federally detained at our Bureau of Prisons facilities
across the country.
Our national fugitive operations program, established in
2003, targets aliens who have been ordered removed by an
immigration judge but have failed to comply with those orders.
We currently have 53 teams nationally, and we plan to expand
those teams to 75 by the end of the year.
The integrity of our immigration system requires fair and
effective enforcement of our nation's immigration laws. By
aggressively enforcing these laws, we seek to deter criminal
and terrorist organizations who threaten our very way of life,
and we seek to strengthen the legal immigration process for
worthy applicants.
I would like to thank you, Madam Chairwoman and members of
the subcommittee, for this opportunity to testify today on
behalf of the men and women of DRO. And I look forward to
answering any questions you may have.
[The statement of Mr. Torres follows:]
Prepared Statement of John P. Torres
March 15, 2007
INTRODUCTION
Good afternoon, Chairwoman Sanchez, and distinguished Members of
the Subcommittee. My name is John Torres, and I am the Director of the
Office of Detention and Removal Operations (DRO) at U.S. Immigration
and Customs Enforcement (ICE). It is my privilege to appear before you
to discuss the enforcement mission of DRO.
DRO is responsible for promoting public safety and national
security by ensuring the safe and efficient departure from the United
States of all removable aliens through the fair enforcement of the
nation's immigration laws. As such, DRO's core mission is the
apprehension, detention, and removal of inadmissible and deportable
aliens, the management of non-detained aliens as their cases progress
through immigration proceedings, and the enforcement of orders of
removal.
DISCUSSION
DRO employs a number of tools to accomplish this mission. Using
these tools, DRO has achieved considerable success in executing its
immigration enforcement mission.
Increased Detention Capacity: Since 2006, ICE increased its
detention capacity by more than 7,500 beds in Alabama, Arizona,
California, Georgia, New Mexico and Texas.
Improved Detention Management: In addition to adding detention
resources to prevent the release of illegal aliens, ICE has achieved a
number of important successes in appropriately deploying this added
capacity:
In 2006, DRO deployed a strategy to realize cost
efficiencies, by relying more heavily on larger regional
facilities and thereby realize economies of scale while
relieving the burden on Field Offices facing detention
shortages.
ICE created the Detention Operations Coordination
Center (DOCC) in July 2006. The DOCC monitors DRO Field Office
detained dockets in order to coordinate movement of detained
aliens from Field Offices with detention shortages to Field
Offices with surplus capacity. The DOCC also actively ensures
that all enforcement efforts by DRO and other apprehending
entities are matched with adequate detention space. As a result
the average daily population has risen from approximately
18,000 in July, 2006 to approximately 28,000 today.
DRO began to restructure the detainee transportation
system in order to utilize ICE staff and transportation
resources as effectively as possible. In particular, DRO
expanded the use of ground transportation in order to minimize
inefficient and costly short-range Justice Prisoner and Alien
Transportation System (JPATS) flights and increase flight
service routes for longer, more cost-effective flights.
DRO expanded its Alternatives to Detention programs to
reduce the cost of monitoring aliens under supervision. Under
this program, the Electronic Monitoring Program utilizes radio
frequency ankle bracelets and a telephonic reporting system to
remotely manage detention cases. In addition, the Intensive
Supervision Appearance Program utilizes home and office visits,
mandatory curfews, as well as radio frequency ankle bracelets,
as effective alternative case management techniques.
As detention space is added, DRO continues to ensure
that all facilities comply with the 38 ICE National Detention
Standards. These standards were developed in partnership with
Nongovernmental Organizations, such as the American Bar
Association, and building upon standards established by the
American Correctional Association, meet or exceed correctional
industry standards.
Expanded Use of Legal Authority: In 2006, the Department of
Homeland Security employed Expedited Removal authority under the
Immigration and Nationality Act to streamline the processing of aliens
apprehended at or near the border. Under Expedited Removal, aliens who
present no claim for asylum or other protection are removed under
streamlined processes, which reduce both the period of time such aliens
are detained and the enforcement resources necessary to secure orders
of removal.
Technological Enhancements: In addition to increased detention
capacity, improved management of that capacity, and mechanisms to
improve removal and transportation processes, DRO has also used key
technological tools to further its mission. These tools include the
Electronic Travel Document system and Video Teleconferencing
capability.
The electronic travel document allows us to
work with cooperating foreign governments to process
and obtain travel documents required for removal
electronically, avoiding the need for slower, less
efficient, mail-based correspondence. This system has
reduced the processing times for travel document
issuance from weeks to days.
Video Teleconferencing capability allows DRO
to provide for remote interviews of detainees by
foreign consular officials, thereby reducing the need
for in-person interviews during the travel document
issuance process.
Combined, these tools have allowed DRO and the Department of
Homeland Security to realize significant and concrete gains:
For example, in 2006, DRO made record use of
JPATS. Compared to 10,352 movements in 1995, we moved
115,000 aliens in 2006. DRO is currently on pace to
move 170,000 aliens through the use of JPATS in 2007.
Also in 2006, DRO removed a record number of
aliens--more than 190,000, of whom nearly 90,000 were
criminal aliens.
In addition, through the expanded use of
Expedited Removal, DRO was able to decrease the time
aliens spend in custody, effectively increasing the
bedspace available for detention each year.
Specifically, while the average length of detention for
aliens in traditional removal proceedings is 89 days,
the length of detention for aliens removed under
Expedited Removal processing is 19 days.
Finally, through the increased and more
efficient use of bedspace, DRO now ensures that no
alien apprehended at the border is released for lack of
detention capacity, thereby effectively ending ``catch
and release'' at our borders.
In addition to these gains, and consistent with DRO's mission to
promote public safety and national security, DRO has committed
significant resources to the apprehension, detention, and removal of
criminal and fugitive aliens.
Criminal Alien Program: ICE has worked aggressively to transition
criminal alien enforcement efforts from its Office of Investigations,
while making the most of DRO's specialized administrative immigration
processing capabilities and expertise.
Most recently, 2007 began with an aggressive
push to transition all remaining Institutionalized
Criminal Alien Operations from the Office of
Investigations to DRO. This transition is scheduled to
be completed by June 1, 2007. Currently, 11 out of 24
DRO Field Offices have fully transitioned.
In June 2006, DRO established the National
Detention Enforcement and Processing Offenders by
Remote Technology (DEPORT) Center, a Chicago-based
center that supports the screening, interviewing, and
removal processing of criminal aliens detained in
federal custody throughout the United States.
Since its inception, DEPORT has screened
nearly 10,000 cases, issued over 7,100 charging
documents, located almost 100 alien absconders, and
lodged more than 2,600 detainers.
National Fugitive Operations Program: Established in 2003 and
tasked with locating, apprehending, and effecting the removal of
fugitive aliens, the ICE National Fugitive Operations Program within
DRO has been working aggressively to reduce the number of fugitive
aliens.
DRO has currently deployed 53 teams, nearly tripling
the number of teams in 2005, and continues to work on deploying
the additional 22 Fugitive Operations Teams funded by Congress.
Team enforcement activities prioritize alien absconder
cases in the following order: aliens identified as threats to
national security; those who pose a threat to the community;
those convicted of violent crimes; those with criminal records;
non-criminal absconders.
State and Local Responses: In addition to partnerships with state
and local law enforcement agencies under section 287(g) of the
Immigration and Nationality Act ICE is taking steps to explore
increasing responsiveness to state and local law enforcement agency
requests for assistance. One example of these exploratory efforts is
the creation of a pilot program in the Phoenix, AZ, metropolitan area
to service such requests.
Under this pilot program, which began in September
2006, ICE created a dedicated unit in DRO's Phoenix Field
Office, called a Law Enforcement Agency Response Unit, to
provide primary rapid response to law enforcement agency
requests for assistance in immigration-related cases on a 24-
hour-per-day, 365-day-per-year basis.
From September 4, 2006, through March 4, 2007, this
unit received 468 calls for assistance from state, local, and
federal law enforcement agencies in the Phoenix area,
encountering over 2,700 aliens.
ICE will continue to study the successes of this pilot
program and the feasibility of adopting similar programs in
other localities.
CONCLUSION
The integrity of our immigration system requires fair and effective
enforcement of our Nation's immigration laws. By aggressively enforcing
these 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, Ms. Chairwoman and Members of the
Subcommittee, for the opportunity to testify today on behalf of the men
and women of DRO, and I look forward to answering any questions you may
have.
Ms. Sanchez. Thank you, Mr. Torres. I thank you for your
testimony.
I remind each member that he or she will have 5 minutes to
question the witness. And I will now recognize myself for
questions.
Mr. Torres, as you know, there have been a lot of recent
reports in the newspaper and other news media and a great
concern about the conditions of detention centers and the
treatment of detainees at these centers. So my first question
is: What are the government standards for care and custody of
detainees?
Mr. Torres. We actually have eight national detention
standards, 36 of which were developed back in 2001 under the
INS, in conjunction with nongovernmental entities and various
organizations. A couple of years ago, we added two more
detention standards. And, actually, right now, we are in the
process of specifying those even more and adding family
detention standards, in relation to the facilities that we have
Berks, Pennsylvania, and down in Hutto, Texas.
We have an inspections program, a trained cadre of about
340 deportation officers across the country that are required
to inspect all of our facilities, including those that are
contracted through intergovernmental service agreements, once
annually.
And then we also have a separate program where that is
overseen by our Office of Professional Responsibility, and so
the recommendations of those annual inspections are forwarded
to OPR and then over to us to make implementations if there is
any determination that any of those standards are not being
met.
We also allow the Office of Civil Liberties and Civil
Rights to review specific cases where there are allegations
that we are not up to standards. And then we also allow,
obviously, the inspector general and/or GAO can come in and
take a look at some of these facilities, too.
Ms. Sanchez. So the first line of looking at whether you
are meeting the standards or what is going on in these centers
is actually from within ICE?
Mr. Torres. Yes, actually, we will do an inspection to see
whether or not a facility--for example, if we were to lease
space from a county jail, we would do an inspection of that
jail first to determine whether or not it would meet our
standards.
If it does not meet our standards, we would go back to that
county jail, advise them where it doesn't meet our standards,
and to see whether or not they are willing to make improvements
or modifications so that they would be up to our standards. If
not, then we cannot contract with them.
Then, the second one is we inspect it just before it opens.
Ms. Sanchez. Just before it opens.
Mr. Torres. Right.
Ms. Sanchez. And then when is the next time you would
inspect it? Would you do random inspections from the people
that are within ICE to go and take a look?
Mr. Torres. Yes, from those that are trained within ICE,
then it is required that, once it is opened, the facility is
open, then there has to be at least one annual inspection. And
if there were an incident to take place, for example, whether
there was an allegation of a beating or a detainee were to pass
away, then we can do spot checks, we can do special
assessments, and we will send a team within 48 hours to do an
assessment.
Ms. Sanchez. But these are all within the Department of
Homeland Security and specifically within ICE?
Mr. Torres. Those are done within ICE DRO. And then the
reports are now forwarded over to the Office of Professional
Responsibility within ICE, yes.
Ms. Sanchez. And when you talk about having the Office of
Civil Liberties and Civil Rights take a look, how often have
they come in to take a look at, let's say in the last year, to
take a look at one of your detention centers?
Mr. Torres. I don't have specific numbers on that. I am
aware of at least a handful off the top of my head where there
were specific incidents or, for example, they say, ``We would
like to go take a look at one of your facilities.'' And so I
know there are several assessments ongoing.
Ms. Sanchez. And when you look at your facilities, do you
contract out, so you don't run your facilities? You have a jail
or something in the area where they are performing this
function for you?
Mr. Torres. Yes, to a certain extent. We have eight service
processing centers which we own. We contract out fully another
seven. And then the remainder--there is a total of about 330,
give or take a few, that are contracted out to
intergovernmental service agreements, either run by a county
jail or run by a specific corporation specializing in
detention.
Ms. Sanchez. So if you are contracting out and you are
contracting out to local agencies, but they contract out to
private people to run their jails, is that the way you get to
the private sector? Or do you also make contracts specifically
to the private sector contractors?
Mr. Torres. We will go through the local governments, for
example, and then the local government may enter an agreement
with a private contractor in many of the cases. And regardless
of whether we are contracting through the governments or with a
county, for example, all of our facilities have to meet those
standards.
Ms. Sanchez. And would you give those standards to the
private contractor? Or what kind of guidelines do you give
them? Do you say, ``These are the 38, and you must meet each
and every one of these''?
Mr. Torres. It actually goes beyond the 38. We have our 38
standards posted on the ICE Web site. They are made available
publicly. Anyone who is interested in doing business with DHS,
ICE specifically, DRO for detention purposes, are made aware of
what those standards are.
And then, within those standards, we have various
checkpoints, anywhere from 200 to 400 checkpoints within each
of those standards so that, when our officers go do an
inspection, they perform an inspection in the field of a
facility, they are required to submit their reports back into
headquarters, now to OPR.
Last year, they were sending reports internally within
Detention and Removal Operations. We changed that this past
year, this fiscal year, and now those reports go to the Office
of Professional Responsibility for review and recommendations
for us and DRO to act upon.
Ms. Sanchez. And we have one vote on the floor right now,
so I don't know how you all want to handle--do you want to try
to roll, and I will go vote, and Mr. Thompson stays, or do you
want to just go up for 10 minutes, then break, go over, take
the vote and I will come back?
You want to recess for the 10 minutes and try to take your
questions now, then recess for--and then we will break, and
then we will come back. We have got a vote on the floor, and it
is just one, so I think--and unless you all are going to play
games after today.
Okay, I will now recognize the ranking member for 5
minutes.
Mr. Souder. Thank you.
Mr. Torres, do you know what percent of the people in your
detention facilities are from people from countries on our
terrorist watch list?
Mr. Torres. Actually, Congressman, I don't have that
percentage handy, but we can definitely get that for you. We
have a breakdown by nationality of everyone we detain.
Mr. Souder. Do you keep a fairly good--do you get a fairly
good data entry system on each person you do? And do you work
with ICE about that data?
Mr. Torres. Well, that is actually relative, sir, in the
extent that our deportation software, our data system, that was
developed probably about 25 years ago, and we are still
operating under that system. One of our priorities this year is
what we call DRO modernization, to actually make that more of a
current type of database, where we can actually have management
tools built in to do assessments, reviews.
So if you were to ask me today, ``Can you tell me how many
people you have that are a certain age, from a certain
nationality in your detention?'' It would probably take us
about a week to pull that number down for you, because we would
actually have to go in and reprogram the system to do that.
What we are striving to get is towards a better reservation
system, better transportation system, real-time access so that
we can tell you where everyone is today, where they are
tomorrow, where they are in immigration process, as
instantaneous as possible.
Mr. Souder. Part of this is a day-to-day management system,
but part of it is to try to get to networks and smuggling
organizations. And you have the best kind of information with
which can be mined. Where did people get false IDs? Who did
they arrange their transportation through? Who are their
contacts inside the United States?
And the ability to get that information in a timely
fashion, so we don't just take down individuals who are
wandering in, but rather get to the systems would seem to be
very closely correlated with your ability to have adequate
software and programs that could pull the questions down,
because--do you have a figure on how many have committed
crimes, other than immigration-related crimes?
Mr. Torres. Yes, we can get that. I don't have that off the
top of my head, but you are exactly right, sir. We have an
Office of Intelligence, where we work very closely within ICE
and develop what we call Operation Last Call.
In effect, we work with other law enforcement agencies so
that people that they may have interest in, we can come in and
do interviews before we place them on planes or buses, to
deport them from the country.
Mr. Souder. There have been some cases--do you know how
many cases of individuals may--or is this prevalent, just a
few, is it expanding--have, in effect, rented children or used
children to come in as a family person when, in fact, they
aren't?
Mr. Torres. We actually receive reports from the Border
Patrol, from Customs and Border Protection, before we open the
family facility that indicated--and they didn't have numbers.
And we are working closely with the Border Patrol and our
detention facilities. Corrections Corporation of America, for
example, may have statistics, and we are working with them to
get those specifically.
But what we saw before we opened the family facility is
that there were rent-a-family schemes, not just families that
were bringing their children in knowing that they were not
going to be detained, but we had families that either rented
out their children, especially those who are younger that
aren't easily interviewable, but also smugglers that would pay
to bring a child, make it appear that a family was being
brought into the country. And then, when they were arrested,
they were released on their own recognizance, given a notice to
appear before the court.
Mr. Souder. And to clarify here, we are here not talking
about Mexican nationals. We are talking about OTMs?
Mr. Torres. That is exactly right.
Mr. Souder. So they are bringing children from far away
from the border?
Mr. Torres. From far away from the border and also renting
children from Mexico to pass them off as their own, yes.
Mr. Souder. Is there any additional penalties if you are
caught doing that? It seems to me that would be a fairly
significant crime in and of itself.
Mr. Torres. Not specifically for that crime, sir. There are
enhancements within the smuggling penalties themselves, under
Title 18, 1324, for smuggling, transporting, harboring. There
are aggravating conditions where the sentences may be longer,
if you were to place someone's life in danger or the smuggling
resulted in injury or death.
Mr. Souder. Prior to detention facilities, roughly 90
percent of OTMs weren't showing up--that is an estimate,
obviously--to their hearings. Were there any differences in
statistics between families or non-families? Or if, in fact, we
released families, is it likely to be equally as prevalent
there?
Mr. Torres. The Executive Office of Immigration Review
maintains those statistics, and that is where we received them
from. It was roughly 90 percent of those that were not detained
absconded ultimately. But those statistics were not broken down
by individuals versus families.
But because that was occurring, those statistics were
broadly applied across all of those different--whether they
were individuals or families, and so working on that assumption
that families were absconding as well as everyone else.
Mr. Souder. If it is 90 percent, presumably a fair
percentage were.
Mr. Torres. Presumably, yes, sir.
Mr. Souder. Thank you.
Ms. Sanchez. Thank you, Mr. Torres. You will do us a favor
and we will give you about a 15-minute break? Maybe staff can
show you where to get a cup of coffee or something, and I hope
you will be back when we come back.
We have one vote on the floor, so we should be back
shortly.
Mr. Torres. I will be here.
Ms. Sanchez. Thank you. We stand in recess.
[Recess.]
Ms. Sanchez. The subcommittee is now back in order. And Mr.
Thompson had to go and give a speech somewhere, and I don't see
Mr. McCaul back, but maybe he will return.
In the meantime, I have some more questions I would like to
ask you, Mr. Torres. And I am sure my ranking member may have
some, also.
Mr. Torres, I have heard reports that a substantial number
of the ICE detainees who do not have criminal records are being
held in detention areas or centers with people who are more of
a criminal population. Are you concerned that this--first of
all, does that happen?
Secondly, are you concerned that this type of detention
arrangement could endanger the non-criminal population? And
what is the policy on whether criminal or non-criminal
detainees are detained together and treated the same.
Mr. Torres. Thank you, Madam Chairwoman.
As one of our detention standards and within our policies,
we have a classification system where we use objective measures
to assess the classification of each person that we take into
detention. And we will take into account whether or not that
they are a criminal or whether or not they are a risk to our
officers or to the other inmates.
And, if they are determined to be a criminal or of risk to
the general population or the officers, they are ranked at the
highest level, which would be level three. Levels one and two
are less dangerous, level one being the non-criminals, for
example.
Our policies are that we don't mix the criminal level
three, for example, with level one. And that is spelled out.
That is part of our training curriculum, and also we use that
as part of the inspections process, when we are doing our
facility reviews. So we do not?
Ms. Sanchez. So you would say that non-criminals or people
who you think are non-criminals would never be put in the same
detention area as somebody who has got some sort of a criminal
background?
Mr. Torres. Correct. And if that is brought to our
attention later--for example, we would not have murderers with
non-criminals, people that have been convicted of murder on
state statute, for example, then house at the same level of
classification with those that are non-criminals.
If somebody were to be brought to our attention later,
like, for example, the person had been convicted of a crime
internationally that we were unaware of and is later brought to
our attention, we can reclassify that person and have them
moved to an appropriate setting.
Ms. Sanchez. Great. I also recently learned that ICE has
190 staff assigned to the Willacy County Detention Center in
Raymondville, Texas, but that only 20 of those are actually on
staff. Can you tell me, is this reflective of staffing issues?
Are you having trouble filling spots? Are you contracting spots
out? Are there different classifications of staff that would
make that seem that there is only 20 while there is supposed to
be 109 there?
Mr. Torres. There is a couple of different staffing models
that we use, and I don't have the specific numbers for Willacy.
But generally what I can speak to is that, under normal
detention, under the traditional immigration 240 process,
immigration removal before an immigration judge, we would have
additional staff at those particular facilities to manage the
case work, to manage the detainee docket, to arrange through
obtain travel documents from a foreign government so that we
can return that particular person.
In facilities such as Willacy, where we developed initially
to use as an E.R. setting and then it eventually does evolve,
there is a need for less staff because they are not going
through the traditional immigration 240 process.
As we then bring on--well, what we have seen is that there
is a level of deterrence that kicks in. And then we have to
open up that facility to utilize it to its capacity to the non-
expedited removal classification of detainee, and that is where
we turn around and hire more staff, so that we can have it
appropriately staffed by the correct amount of employees that
we feel is necessary to manage that caseload.
In many instances, we do an assessment to see what is
inherently governmental and then attempt to contract out the
remaining positions, such as just security or transportation or
those that would cook the meals, for example.
Ms. Sanchez. So if 190 staffers are supposed to be assigned
to that facility, what does that mean, in your opinion?
Mr. Torres. Without knowing the specific staffing of
Willacy, in which we can get for you, what that tells me, 109
is going to be based on the number of detainees that are
actually housed at a facility, how many employees it would take
to manage that facility for case docket purposes. Also, we need
a law enforcement officer, for example, to verify the
departure, when you are actually removing somebody for future
testimony purposes.
Ms. Sanchez. He would be within that 109 assigned?
Mr. Torres. I would have to take a look and see if they are
talking about 109 employees and contractors or just the 109
government employees.
Ms. Sanchez. And so when someone said to me that there were
only 20 there on staff, do you think that that--and without
knowing the specifics--
Mr. Torres. It doesn't sound accurate, but that is
something I would definitely--when we walk out of here, I will
follow up on it.
Ms. Sanchez. If you could get that information for me,
because, if, in fact, you have 109 slots but you have only got
20 people actually hanging out there, but you have determined,
as you told me, the 109 slots, depending on the population, the
detainee population, then it seems a little--something is not
straight there.
Mr. Torres. And if I may, in several of the facilities that
we have opened over the past year, knowing that the hiring
process and the background clearances take a certain amount of
time, what we do is send in staff from other facilities.
For example, in Georgia, we have brought staff down from
Buffalo, New York, for example, to staff it on a temporary
basis, until we could get the correct complement of hiring
completed and the background clearances approved. So we will
staff a facility, for example, with TDY, temporary duty
employees, for a significant amount of time, until we have the
permanent staff come onboard.
So maybe there is a nuance there of permanent employees
that are onboard versus how many there are actually allocated.
Ms. Sanchez. If you could get that information for me or
try to figure out that one out, because that was a big concern
when that was brought to my attention.
Let me just ask you a series of very quick questions. You
have probably read all the newspaper accounts with respect to
in particular the family retention facilities that we have, the
one in Texas. In your opinion, are people mistreated in your
facilities?
Mr. Torres. No, they are not mistreated in our facilities.
Ms. Sanchez. In your opinion, are people getting the
medical services that they need?
Mr. Torres. Yes, in my opinion. Yes, they are.
Ms. Sanchez. On a timely basis?
Mr. Torres. Yes.
Ms. Sanchez. What about the ability to speak the different
languages that some of these detainees may have? Do you feel
that you are adequately staffed to do that at this point?
Mr. Torres. What we have is a contract that allows us to
employ the interpreter's services through the telephone. We can
call and operator for those languages that our officers don't
speak so that we can then communicate effectively with the
detainees.
Ms. Sanchez. Are you facing challenges in recruitment and
retention of your agents that work in your detention
facilities?
Mr. Torres. I can't speak specifically to the detention
facilities, and that would be something that we would
definitely take a look at. But overall, within detention and
removal operations, the morale overall from the officers that I
visited over the past year and a half and the feedback that we
are getting from those officers is that it is very positive,
and that they feel the program is going definitely in the right
direction, and that we are seeing very good recruitment lists
for hiring of positions, I would say probably in the last 9
months for jobs that we have posted.
And so, within detention and removal operations, I would
not say that that has been a problem for us.
Ms. Sanchez. Your detainees, do they have access to
counsel?
Mr. Torres. Yes, they do.
Ms. Sanchez. If I went there and asked them, did they get
their access to counsel in a pretty straightforward, within a
timely matter, would they say yes to that?
Mr. Torres. Well, I can't anticipate what a person that is
in our detention is going to say. Obviously, people that are in
detention are not necessarily happy that they are in detention,
and so there are a lot of things they could potentially say.
Ms. Sanchez. How long would you say that a detainee has to
wait until he has access to counsel, he or she have access to
counsel?
Mr. Torres. Actually, upon arrest, they are provided with a
list of services. When they are processed, they are again
provided with a list of services. And then, when they are
brought into our detainee facility, we provide them with--that
list is posted again in some of the facilities or handed out.
And then they are free to make telephone calls to anyone on
that list that provides the free legal services.
Ms. Sanchez. They are free to make telephone calls? Does
that mean they have--you have a telephone there, they can dial
anywhere? Or does that mean they have to have, I don't know, 75
cents in their pocket to make that call?
Mr. Torres. For those that are indigent, those calls can be
free, yes.
Ms. Sanchez. And last question. How many children do you
think you have in your detention center in the Texas family
center?
Mr. Torres. The numbers I saw about a week ago were about
176 to 180. And that fluctuates daily.
Ms. Sanchez. And that would be age levels 1 through under
18?
Mr. Torres. Under 18, correct.
Ms. Sanchez. And how many of those children are going to
school while in your facility?
Mr. Torres. I don't have specific numbers who are going to
school, but we do offer 7 hours a day of educational classroom.
Ms. Sanchez. In the detention facility?
Mr. Torres. Yes, in fact, we are in the process right now
of building out a couple--two additional trailers at the Hutto
facility, in addition to the two that are already operating.
The two new trailers, which would be completed by the end
of the month, well, one is for junior-high-level training and
classroom services, and one is for the high-school-level
schooling. And so there are a couple of rooms within the
facility itself that are used for classroom purposes.
Ms. Sanchez. So you bring teachers in every day, Monday
through Friday, to teach class?
Mr. Torres. Yes, teachers come to the facility to teach.
Ms. Sanchez. And is it optional for the student to go or is
it mandatory for the student to go to school?
Mr. Torres. Actually, I am not sure if that is mandatory or
optional. I know that?
Ms. Sanchez. I mean, it is mandatory in the United States
for a child of that age to go to school, but I don't know if
within your facility you mandate it.
Mr. Torres. Yes, we can get an answer for you on that. I
know that, when I toured the facility most recently, the
classrooms had many children, all taking the classroom-level
education appropriate to their age.
Ms. Sanchez. Thank you, Mr. Torres.
Does the ranking member have any questions?
Mr. Souder. Thank you.
I want to make sure for the record--in answer to the
questions where there are specific problems, you are not saying
there aren't any problems? You are saying that the bulk of the
cases, you believe, are being addressed?
Mr. Torres. That is correct, Mr. Souder. There are
instances where issues could be raised to our attention or that
a specific detainee may have a complaint. And we have a process
put in place where they can pass those complaints to us, they
can either tell us in person, they could drop them in a
suggestion box. They can also write letters, and then we act on
those complaints.
And there are instances, for example, with hot water, where
in the size of the facility, if you are closer to the hot water
heater, the showers closer to the facility are warmer than if
you are further away. And so we have taken measures to address
that and place signs that say, ``If you are using a shower
further away from the heater,'' at that specific shower, it
will say, ``Please let it run for a few minutes and it will
warm up,'' for example.
Mr. Souder. In the OTMs that we are discussing here, how
many of those--do you have any idea of the percent who seek
asylum who actually get asylum?
Mr. Torres. I don't have the percentage of how many
actually seek asylum. I have seen any estimates that, for
example, those that make a credible fear claim for all
nationalities, that as many as 90 percent to 95 percent--and I
don't have the specific number handy--actually are granted
credible fear.
And then the number drops dramatically for those that are
actually granted asylum, based on those that were given a
credible fear hearing.
Mr. Souder. So about one out of every five who gets the
hearing is the best estimate that you have, because this is the
most problematic, because the fact is, everybody else in the
detention center has committed an unlawful act, meaning we are
separating degrees of unlawful acts. Unless you, in fact, have
a legitimate asylum question, you have committed a crime.
Mr. Torres. That is correct, sir, both under the
Immigration and Nationality Act, they are here--people are
illegally here in the United States. They are present without
status, or they have also committed a crime that could be
punishable under federal code, under Title 8, USC 1325, for
example, is the illegal entry.
While that is not actually prosecuted very often, the
majority of people we house in detention are for violations of
the INA.
Mr. Souder. Now, among the asylum seekers that--ironically,
every member has stories about his district. And one of my
cases is people--I have the largest population of people from
Burma who are escaping persecution. In fact, 500 of the 800 in
the United States who are Mon Shan, they are not all Burmese,
many of them are persecuted by Burmese.
For asylum seekers, if they come in and wind up in the
detention facilities, what protections are in place for them?
Mr. Torres. They are allowed to have their hearings. They
are detained in a setting that is consistent with our 38
national detention standards. And they have the same
protections as other people that are in detention.
As soon as, you know, the decision is made whether or not
they are granted asylum, if they are granted asylum, then they
are appropriately released. What they can also do is have a
hearing, a bond redetermination hearing, before an immigration
judge. So just because we have them in detention, for example,
they are entitled to ask through their counselor or through
filling out a form, but for our detention officers, they can
ask the judge to have their bond redetermined.
And if the judge decides to reduce the bond or set a bond
or release them on their own recognizance, that would be up to
the judge.
Mr. Souder. Now, one of the problems here are people who
are claiming asylum and don't really deserve asylum. And they
are backlogging the cases for those who really do deserve
asylum.
Have you seen a decline? Because, clearly, the data that
you are suggesting in both your written and your verbal suggest
that it is a much shorter stay if you don't claim asylum.
Expedited removal is doing that. If you claim asylum, you have
a longer stay.
Has that seemed to have reduced the number of people who
are claiming asylum?
Mr. Torres. I don't have those statistics handy. Those are
kept by the Executive Office of Immigration Review. The latest
statistics we have from them indicate that 62 percent of those
that apply for asylum are denied relief.
So, for example, if there were a frivolous claim, the logic
is that the deterrence to frivolous claims for asylum is that
you are going to be detained and then ultimately removed.
Mr. Souder. Is there an expedited process, because in
certain countries, clearly persecution exists at a higher level
for certain subgroups than individuals who may be pursuing some
kind of individual angle? Do you look at logical clusters of
people who are persecuted as part of a subgroup?
I gave the example of Burma, but even it could be in
certain areas--although we are not dealing with Mexico here--
but historically, El Salvador, or Guatemala, other countries
around the world where a subgroup--I have a huge population
from Chad. It may be the largest population of people now
coming in from the Darfurian conflict. I have 1,500 Bosnians
that have come into Fort Wayne.
Is there a different process when you know that a
particular region or subgroup in a region is under heavy
duress?
Mr. Torres. Well, the process itself is managed by
Citizenship and Immigration Services. And they have a separate
asylum division, which is another agency apart of ICE. When
people come into the United States illegally, if they make that
claim, we are the entity that detains them, but that is a good
question.
And that is something in our regular meetings with
Citizenship and Immigration Services I can pose to them and
maybe even use as an initiative that maybe we want to try in
certain areas. I am not sure exactly whether they do that or
not.
Mr. Souder. One last question. Do you think it would be
helpful if we established or funded specifically as a line item
additional language training for agents so that--it wouldn't
necessarily be State Department standards, which is one of the
difficult--as I have heard in Border Patrol questions before,
is you don't need to speak State Department language standards.
But if we gave actual incentives to your agents, financial
incentives to learn additional things, because, yes, you can
call up on the phone, get somebody to come in who may or may
not get there in a timely fashion. Meanwhile, if there were, in
fact, chemical, biological, other types of things, it is not
clear we could even read the package.
Mr. Torres. That is a very interesting proposal. One of the
things that we have done within our agency is we have re-
implemented the Spanish-speaking criteria. It is a requirement
now for all new officers and agents that we are hiring in the
Detention and Removal Operations program, and they have to pass
Spanish.
But for languages other than Spanish, we rely on that
language interpreter service. I think that we would be more
than willing to sit down with your staff and exchange some of
those ideas so we can have that proposed language reviewed and
vetted accordingly.
Mr. Souder. Thank you.
Ms. Sanchez. May I ask you one other question, Mr. Torres,
since you are just a wealth of information, isn't he? I
represent a large Vietnamese population, the largest one
outside of Vietnam in the world, actually.
And I know that, in my county jail--let's say we have a
criminal from Vietnam, and maybe he is a resident, and he
commits a crime in the United States, he serves his time. Then
we are supposed to deport him back to Vietnam. Vietnam doesn't
take them back, so these people sit in my jail indefinitely, 5
years, 10 years.
Lots of them have been there, and we have never released
them, so we don't want to release them because of the law. We
don't want to release them back into society, but yet their
home country won't take them back.
So my question to you is, what do you do if you have
somebody that is in one of your detainee centers and you want
to deport them, but their home country doesn't take them back?
Mr. Torres. Very good question, Madam Chairwoman. The
distinction for people that we detain while they are going
through their removal process, they may be detained for
extended periods of time, if they elect to appeal any decision
and use all their appellate rights, on up through district
court, all the way to the Supreme Court.
That could be as short as several months; if they take it
all the way to the Supreme Court, it could be a couple of
years. In a case of a criminal, for example, statutorily, we
are mandated to detain that person in our custody and don't
have the discretion to release them into the community.
Once they have been ordered removed by an immigration
judge--there is a current Supreme Court decision known as
Zadvydas that requires us to review the detention of every
person that we have this order to remove at 90-day intervals.
For example, the first 90 days, unless we have some sort of
reasonable foresee ability that we can remove that person to
their home country, if we don't have that, we have to release
them. That is by the Supreme Court decision, regardless of what
crimes they committed in the United States, and how heinous
those acts may have been.
If we think that we have an opportunity to remove them to
their home countries, we can detain them for another 90 days,
with 180 days being the limit. In very few instances where a
person is such a threat to the community, we may use the
authority of our assistant secretary or secretary to request to
detain that person longer than 180 days, but that is not done
very often.
So we take measures and ensure and implement steps that,
when we do have to release a person like that, we place them on
some sort of monitoring requirements, reporting requirements,
possibly even an ankle bracelet, for example, so that we can
try to take as many steps as possible to assure that that
person won't commit another crime or pose a recidivist threat
to the community.
Ms. Sanchez. So let me get this straight. You have got
somebody who committed a crime, and you have got them in your
detention center because they have come across the border or
what have you. And so they are ready for deportation. Their
country doesn't take them back. You review it 90 days later;
the country doesn't take them back. You have to release them?
Mr. Torres. That is correct.
Ms. Sanchez. Unless it is so--unless they are the Sam the
Killer or whatever?
Mr. Torres. That is right. That was a Supreme Court
decision, and that is how we operate. So on the one side?
Ms. Sanchez. And what kind of status do they have in the
country then?
Mr. Torres. They don't have status. They are released--
their status is, they have been ordered removed from the
country. And so they are now back in the community, under some
sort of reporting conditions, which are appropriate to what
their status is, for example.
Ms. Sanchez. So they have to report into somebody every 6
months, let's say, still here in this country, have no status.
So we have them sitting here in this country with no status, so
they can't work. They can't go to school.
Mr. Torres. That is correct.
Ms. Sanchez. They are just sitting there, because their
country won't take them back, but we don't want to keep them in
jail.
Mr. Torres. That is correct. And so what we do is, on the
other side of our Detention and Removal Operations, we have a
unit that works--it is called a travel document unit. It
liaisons internationally with foreign governments, and we seek
to obtain agreements where we can remove people. And in certain
instances, the secretary of state has the authority to impose
visa sanctions on a country that refuses to take back their
foreign nationals.
Ms. Sanchez. So if I happen to come from a country that
doesn't take people back, in effect, I could be an illegal
immigrant in the United States legally?
Mr. Torres. You could also be a criminal illegal alien,
yes.
Mr. Souder. One question on that. If the crime is committed
in the United States, they would have to serve the sentence of
that crime?
Mr. Torres. That is correct, sir. If they committed the
crime here and were sentenced to 25 years in prison, for
example, they will serve the 25 years in prison, and they would
be transferred to us.
Mr. Souder. And if the country wants to maintain its visa
status--so it is presumably the problem I have seen in Salvador
and Guatemala. We have sent more gang kids back, who basically
weren't gang kids necessarily when they came to the U.S., got
involved in U.S. gangs, we sent them back, and apparently they
have police forces in Guatemala right now, partly because of
the historic persecution of police forces, but they are
overwhelmed now with the gang problem.
But because they want to keep the visa applications, they
would have a reciprocal agreement. So, really, the biggest
problem here would be countries that don't currently--which
probably are the highest terrorist risk countries, that don't
currently have or worry about whether their people can have
visas.
Mr. Torres. And there are some countries?
Mr. Souder. Like Burma, for Burma, for example, we have
sanctions on Burma. So Burma has no incentive to take anybody
back. That would be correct?
Mr. Torres. Well, I don't know that they don't have an
incentive, but with some countries, there is definitely less of
an incentive.
Ms. Sanchez. Vietnam. Vietnam, we have visas with them, but
they don't take their people back if they are criminals.
Mr. Souder. So my understanding is we could deny Vietnam
the ability then to travel, but we haven't?
Ms. Sanchez. But we haven't.
Mr. Torres. Well, for example, if a person who was granted
a visa after a certain period of time in Vietnam, for example--
I can't remember off the top of my head the specific year--they
will take nationals back to their country if they were
recognized after a certain year. Before that year, they will
not issue a travel document for us to send that person back.
Ms. Sanchez. Thank you, Mr. Torres. Thank you so much for
your enlightening information. And we will let you step down,
and we will ask our second panel to come on up.
Mr. Torres. It has been my pleasure. Thank you.
Ms. Sanchez. I would like to thank our second panel for
being here. I would like to welcome the second panel of
witnesses.
Sorry, I was looking for your resumes.
Our first witness, Mr. Richard Seiter, is executive vice
president and chief corrections officer of Corrections
Corporation of America, or CCA, a position that he held since
January 2005. Previously, he served in a variety of roles with
the Federal Bureau of Prisons, including serving as the
assistant director for industries, education and training from
1989 to 1993.
He was also the director of the Ohio Department of
Rehabilitation and Corrections from 1983 to 1988. And most
recently, Mr. Seiter served as an associate professor in the
Department of Sociology and Criminal Justice at Saint Louis
University. He has authored two textbooks on corrections,
``Corrections: An Introduction'' in 2005 and ``Correctional
Administration: Integrating Theory and Practice'' in 2002.
Our second witness is Michelle Brane, director of the
Detention and Asylum Program at the Women's Commission for
Refugee Women and Children. The organization's mission is to
improve the lives of refugee women, children and youth. She is
co-author of a report released last month entitled ``Locking Up
Family Values: The Detention of Immigrant Families,'' which
focuses on some of her organization's concerns regarding
immigration detention facilities, particularly with respect to
children.
Our third witness is Christina Fiflis of the American Bar
Association's Commission on Immigration. And she received her
B.A. from Scripps College in Claremont, California, in 1978 and
her J.D. from Georgetown University Law Center in 1981.
She is licensed to practice law in the state of Colorado,
where she also has an immigration law practice, and is admitted
to the United States District Court to the District of Colorado
and the United States Court of Appeals for the 10th Circuit.
She was appointed to the ABA's Commission on Immigration in
August.
And our final witness, Mr. Michael Cutler, a fellow with
the Center for Immigration Studies. The Center for Immigration
Studies is the nation's think-tank devoted exclusively to
research and policy analysis of the economic, social,
demographic, fiscal and other impacts of immigration on the
United States. Mr. Cutler retired in 2002 after a distinguished
career with the Immigration and Naturalization Service, a
career that lasted over 30 years, and including 26 years of
those years as a special agent.
And in 1991, he was promoted to the position of senior
special agent and was assigned to the organized crime drug
enforcement task force. Mr. Cutler has testified before
Congress on issues relating to the enforcement of immigration,
and, of course, he has appeared on numerous television and
radio programs--we see you quite often--to discuss the
enforcement of the immigration laws.
And so, without objective, I would like to submit the
witnesses' full statements into the record.
And I now ask each witness to summarize his or her
statement for 5 minutes, beginning with Mr. Seiter.
STATEMENTS OF RICHARD P. SEITER, EXECUTIVE VICE PRESIDENT AND
CHIEF CORRECTIONS OFFICER, CORRECTIONS CORPORATION OF AMERICA
Mr. Seiter. Thank you. And good morning, Chairwoman
Sanchez, Ranking Member Souder. I am pleased to be here.
My name is Rick Seiter. I am executive vice president and
chief corrections officer of Corrections Corporation of
America. I am pleased to be able to be here and honored to
appear before the committee to share with you some of my
perspective, based on 30 years of experience in the corrections
and detention field.
My written testimony describes the history of our company
and our participation in ICE, and I would like to address some
of the specific issues of that partnership.
First, I want to emphasize that CCA does not set
immigration policy regarding who should be detained and on
grounds. That responsibility is clearly and appropriately
invested with Congress and the administration.
Currently, CCA has seven detention facilities throughout
the country for which we have ICE as our primary or exclusive
customer. CCA's trained professional detention staff is
responsible for the care of nearly 6,000 individuals who have
been detained by ICE.
At these seven facilities, CCA works closely with ICE staff
to ensure that our contracted facilities are meeting all
applicable detention standards. These standards include ICE
detention standards, as Director Torres talked about,
applicable federal and state laws, as well as nongovernmental
professional accreditation standards.
CCA is routinely audited by ICE to ensure contractual
compliance. And CCA's ICE facilities are frequently accessed by
federal, state and local government officials, as well as
immigration attorneys and advocates. In short, the level of
oversight and scrutiny of these facilities is extensive and is
welcomed.
One of our ICE facilities is the T. Don Hutto Family
Residential Facility in Taylor, Texas. This facility was
contracted to support ICE in May 2006 as a major component of
the effort to end the practice of ``catch and release,'' while
preserving the unity of alien families as they await the
outcome of their immigration hearings or return to their home
countries.
Since the center opened, we have worked closely with ICE to
develop policies and procedures to address the unique mission
of this facility. We are keenly aware of and sensitive to the
special needs of the families that reside there and have taken
significant steps to create the best possible environment for
those families for the short time they are in our care.
In that regard, we have made major renovations to the
facility. Housing areas were modified to ensure privacy and
allow families the opportunity to socialize and interact with
one another. Doors to individual family living areas provide
ample privacy; however, are not locked to maximize freedom of
movement.
Carpeting, homelike furnishings, plants, curtains,
televisions and video games were added to housing units and
other areas of the facility. Highchairs, play pens, and
children's toys are provided. Outdoor recreational areas were
modified to allow for soccer, basketball, baseball, and ping-
pong. There is an outdoor covered picnic area, two large
playgrounds, and an indoor gymnasium supplied with toys and
sports equipment available daily.
Families live and eat meals together. We are also very
proud of the 7-hour day of educational classes and recreation
provided for school-aged children. As well, recreation is
provided daily for non-school-aged children and their parents.
All families are together before and after the school day.
Our school is staffed with 11 teachers, a principal, and other
education staff to provide age-appropriate instruction. Medical
services for the center are provided by the United States
Public Health Service, in accordance with ICE standards.
Since its inception, CCA and ICE have worked closely
together to create an environment suitable for families. From
the questions to Director Torres, it is obvious that the
subcommittee is very interested in the inspection process. I
would like to also point out that ICE maintains 33 staff at the
facility, including a senior-level officer in charge. And so,
in reality, they do continuous inspections.
We recognize and welcome this level of oversight for
management of Hutto, as well as all of our other ICE facilities
around the country. The Hutto Residential Center is a new and
evolving program. We have learned from and made adjustments to
the needs of this unique population.
We are proud of the partnership and professionalism
demonstrated by our staff and the ICE counterparts who work on
a daily basis in all of our facilities to meet the agency's
critical mission. We value the confidence that ICE has placed
in us for nearly 25 years and strongly believe that our work
demonstrates the best qualities in public-private partnerships.
I believe we provide ICE the flexibility to respond quickly
to changing developments and to meet its increasing demand in a
safe, caring, and cost-effective manner.
In conclusion, I would invite all members of the
subcommittee to visit Hutto or any of our other CCA facilities
to see our operations first-hand.
I appreciate the opportunity to appear before you today,
and I look forward to responding to any questions that you
have.
[The statement of Mr. Seiter follows:]
Prepared Statement of Richard P. Seiter
March 15, 2007
Good morning, Chairwoman Sanchez, Ranking Member Souder and members
of the Subcommittee. My name is Rick Seiter, and I am Executive Vice
President and Chief Corrections Officer of Corrections Corporation of
America. I am honored to be here today to testify on behalf of CCA, but
I am also pleased to be able to share with you my perspective based
upon 30 years of experience in the corrections and detention field.
Prior to joining CCA in 2005, I spent most of my career in public
service--working for 20 years with the Federal Bureau of Prisons in a
variety of roles including warden at two facilities, and as Assistant
Director of the Bureau's Industries, Education and Training Division
during which time I served as Chief Operating Officer of Federal Prison
Industries. Additionally, I was also the Director of the Ohio
Department of Rehabilitation and Correction--a cabinet level position
overseeing the operation of 18 facilities, a staff of 8,000 employees
and an annual budget of $400 million. I further served as Associate
Professor in the Department of Sociology and Criminal Justice at St.
Louis University.
As Chief Corrections Officer for CCA, I oversee the operation of
all 65 facilities managed by the company and its 16,000 employees. As
background for you, CCA is the sixth largest corrections and detention
system in the country, public or private. We manage more than 70,000
inmates and detainees and serve nearly half of all states, local
governments and three federal agencies including the Federal Bureau of
Prisons, ICE and the U.S. Marshals Service.
For nearly 25 years, Corrections Corporation of America has
provided safe, secure and humane detention services on behalf of the
Department of Homeland Security's Bureau of Immigration and Customs
Enforcement. In fact, our first contract as a company was with this
agency (then INS) in 1983 at a CCA facility in Houston, Texas. That
contract for the Houston Processing Center remains in place today--an
example of the quality of service and reliability our company provides
to our government partners.
In my testimony I would like to provide members of the Subcommittee
with an overview of our role in the immigration enforcement process.
With that in mind, it is important for members to remember that CCA
does not set immigration policy regarding who should be detained and on
what grounds. That is a role that is clearly and appropriately vested
with Congress and the Administration.
Our mission as a company and as a service provider to ICE is to
meet the agency's needs by safely, securely, and humanely managing a
portion of their detention population as they await immigration
adjudication and deportation proceedings in accordance with the law and
ICE standards. Currently, CCA has seven detention facilities throughout
the country for which the primary or exclusive customer is ICE. CCA's
trained professional detention staff is responsible for the care of
nearly 6,000 individuals who have been detained by ICE.
At these seven facilities, CCA works closely with ICE staff to
ensure that our contracted facilities are meeting all applicable
detention standards. These standards include ICE detention standards,
applicable federal and state laws, as well as professional
accreditation standards such as those of the American Correctional
Association (ACA) and the National Commission on Correctional
Healthcare (NCCHC). CCA is routinely audited by ICE to ensure
contractual compliance. In fact, a typical facility that we operate for
ICE has between 30 and 80 ICE staff on site depending upon the size of
the facility. CCA's ICE-contracted facilities are frequently accessed
by federal, state and local government officials as well as immigration
attorneys and advocates. In short, the level of oversight and scrutiny
of these facilities is extensive and is welcomed.
An example of this oversight and accountability can be found at the
T. Don Hutto Family Residential Facility in Taylor, Texas. This
facility was contracted to support ICE in May 2006 as a major component
of the effort to end the practice of ``catch and release.'' It is our
understanding that the Department of Homeland Security believes that
this facility provides an effective and humane alternative to maintain
the unity of alien families as they await the outcome of their
immigration hearings or the return to their home countries.
Since the facility opened in May 2006, we have worked closely with
ICE to develop policies and procedures to address the unique mission of
this facility. We are keenly aware of and sensitive to the special
needs of the families that reside there and have taken significant
steps to create the best possible environment for these families for
the short time they are in our care. In that regard, we made major
renovations to the facility, and many security measures, such as
concertina wire atop perimeter fencing, have been removed. Housing
areas were modified to ensure privacy and allow families the
opportunity to socialize and interact with one another. Doors to
individual family living areas provide ample privacy; however, as
appropriate for the unique mission of this facility, these doors are
not locked to maximize freedom of movement. Carpeting, homelike
furnishings, plants, curtains, televisions and video games were added
to housing units and other areas of the facility. Highchairs, play
pens, and children's toys are provided. Outdoor recreational areas were
modified to allow for soccer, basketball, baseball, and ping-pong.
There is an outdoor covered picnic area, two large playgrounds and an
indoor gymnasium supplied with toys and sports equipment available
daily.
Families live and eat meals together. We are very proud of the
seven-hour day of educational classes and recreation provided for
school-aged children. As well, recreation is provided daily for adults
and children 4 years old and under. All families are together before
and after school. Our school is staffed by eleven teachers, a
principal, and other educational staff and is operated year round to
provide age-appropriate instruction. Core curriculum instruction is
provided for students in English language arts, math, social studies
and science. Additional instruction is provided with enhanced
curriculum subjects such as computer training, music, art and cultural
activities as well as physical education. Medical services for the
center are provided by the U.S. Public Health Service in accordance
with ICE standards.
Since its inception, CCA and ICE have worked closely together to
create an environment suitable for families. All activities of the
operation have been worked through ICE staff at the facility, at the
San Antonio field office, and at Washington headquarters. In fact, ICE
maintains 33 staff at the facility on a daily basis including a senior-
level Officer in Charge and deportation officers, immigration agents,
and administrative staff that oversee removal proceedings and monitor
the contract. In addition, 25 Public Health Service staff are at Hutto
to provide medical services to residents.
We recognize and welcome this level of oversight of our management
of Hutto as well as our other ICE-dedicated facilities around the
country. The Hutto Residential Center is a new and evolving program. We
have learned and made adjustments over the past few months to meet the
needs of this unique population. We are proud of the partnership and
professionalism demonstrated by our staff and their ICE counterparts
who work on a daily basis in all of our facilities to meet the agency's
critical mission. We value the confidence that ICE has placed in us for
nearly 25 years and strongly believe that our work exemplifies the best
qualities in public-private partnerships. I believe we provide ICE the
flexibility to respond quickly to changing developments and to meet its
increasing demands in a safe, humane, and cost-effective manner.
In conclusion, I would invite members of the Committee to visit the
Hutto facility and any other CCA facility to see operations first hand.
I appreciate the opportunity to appear before you today and look
forward to responding to any questions you might have.
Ms. Sanchez. Thank you, Mr. Seiter. Thank you for your
testimony.
I now recognize Ms. Brane to summarize her statement for 5
minutes.
STATEMENT OF MICHELLE BRANE DIRECTOR, DETENTION AND ASYLUM
PROGRAM, WOMEN'S COMMISSION FOR REFUGEE WOMEN AND CHILDREN
Ms. Brane. Thank you. Thank you, Chairwoman Sanchez and
Ranking Member Souder.
As you mentioned already, my organization, along with
Lutheran Immigration and Refugee Services, conducted a study
and issued a report on the use of family detention by ICE.
The Immigration and Customs Enforcement currently has the
capacity to house up to 600 individual family members. This is
a drastic change from what the situation was before the opening
of the Hutto facility in 2006.
DHS has presented this shift in policy as a response to
their end of ``catch and release,'' but in reality the
situation is a little more complex than that. And, in part, the
opening of the Hutto facility was an effort to be in compliance
with congressional directives.
Before the opening of the Hutto facility, the majority of
children and families--I am sorry, parents with their
children--were either released as part of the ``catch and
release'' program or separated. And the adults would be sent to
an adult facility. The children, some as young as 6 months and
nursing, would be sent to the Office of Refugee Resettlement,
who is in charge of unaccompanied minors.
Congress discovered this and took immediate action. In
report language of the 2006 appropriations bill, Congress
articulated concern over the ongoing separation of parents from
the children during DHS detention. In House report language,
the House of Representatives ``encourages ICE to work with
reputable nonprofit organizations to consider allowing family
units to participate in the intensive supervised appearance
program where appropriate or, if detention is necessary, to
house these families together in non-penal, homelike
environments until the conclusion of their immigration
proceedings.''
Such congressional directives were intended to preserve and
protect the role of the family as a fundamental unit of our
society. However, ICE chose to develop a penal detention model
for the detention of families with no criminal backgrounds that
is fundamentally anti-family and, frankly, un-American.
Let me tell you a little bit about the conditions we found
at Hutto. And I will start by telling a story--some pieces of
stories that some of the detainees told us.
Dominica--and I have changed her name, because her case is
still in proceedings--was pregnant when she arrived at Hutto.
And she arrived with two children, age 3 and 9. She told us
that she slept together with her two children in the bottom
bunk of the prison cell, because they were afraid at night, and
she didn't want them separated from her.
When I asked about discipline procedures, her 9-year-old
daughter told me that, if she didn't behave, she would be sent
away and separated from her mother.
Threats of separation are commonly used at these facilities
as a way of encouraging compliance, and very often what we
found was that the punishments imposed on these children--most
of them actually seem to be under the age of 12--were
disproportionate to the activities. And very often, it was
regular childlike activities of running, being too loud, or
jumping on furniture.
Another woman, Carmen, who is also pregnant and arrived
with her 5-month-old child, also an asylum seeker and a victim
of trafficking, told us that she received no prenatal care for
the several initial months that she was held at the facility.
After being at the facility for 2 months, she fainted and
was taken to the hospital. She was told that she had a kidney
infection, but was given no antibiotics. She was told to drink
more water. When she was 7 months pregnant, she finally
received her first prenatal exam.
Perhaps even more disturbing is the situation of her
daughter. Five months old when she arrived at the facility,
Lilly actually lost several pounds in the time that she was
detained at Hutto. And while for adults or you and I, losing a
few pounds might not be of concern, it might even be welcome,
for a child under the age of 1, it is both dangerous and
disturbing.
This should not be happening in the United States, and it
especially should not be happening for children who are in U.S.
custody.
Hutto is a former correctional facility. It still looks
very much like a prison. And while changes have been made, such
as paint and carpeting and disengaging the locks of prison
cells, families still sleep in prison cells. Children as young
as 6 years old are often separated from their parents at night.
And while the doors to the cells are not locked, because
the locks have been disengaged, they are, in fact, not allowed
to leave, really, because there is a laser beam that trips if
the doors open.
Children at Hutto when we visited received only 1 hour of
education a day, although I acknowledge that this has been
rectified since our visit. Families receive no more than 20
minutes to go through a cafeteria line, get their food, seat
their children, feed their children, and feed themselves. Many
families, many mothers, in particular, express dismay that this
was just not enough time to feed their children and themselves.
Families at Hutto receive only 1 hour of recreation, 5 days
a week. And many of the children told us that they not been
outside in months, even though there is quite a nice playground
just outside of the gym area.
And access to counsel is limited, primarily because of the
remote location and lack of attorneys available to provide the
representation that they need.
Some changes have been made since media attention has been
drawn to the Hutto facility. As mentioned earlier, children now
receive more than an hour of education. They receive 7 hours of
education a day.
The razor wires have been removed. Children are no longer
required to wear uniforms as they were, at least that is what I
have been told. I don't know if that is true.
And there have been some changes made to the cafeteria.
However, these changes remain cosmetic and do not address the
fundamental issue that the system of family detention is
overwhelmingly inappropriate for families and that the
Department of Homeland Security has failed to consider more
appropriate, effective, and cost-efficient alternatives.
The Department of Homeland Security has presented the
dilemma of ``catch and release'' and what to do with these
families as being an alternative between ``catch and release,''
splitting families and separating them, or detaining them at
places like Hutto. We acknowledge that appearance rates under
the former ``catch and release'' program were problematic, and
we also acknowledge some of the concerns expressed about
renting and trafficking of young children.
However, measures have been taken and further measures
could be taken to address these issues and still remain a
humane system.
Currently, ICE now fingerprints all children who come
through, who are apprehended and come through their care. In
doing this, the fingerprints are now entered into a database so
that, if any child comes through more than once, they would be
identified as the child that is most likely being rented or
trafficked through.
In addition, more rigorous screening policies could be
installed, both with Border Patrol and in the initial ICE
screenings, to determine family relationships. Detention is not
necessary or a practical way to address the issue of
trafficking.
With respect to ``catch and release,'' the current approach
fails to take into consideration both Congress's directive to
explore alternatives and the reality that alternatives already
exist and pilots have already been used. Such alternatives are
less costly, while ensuring that immigrants in proceedings
appear at their hearings and that our immigration laws are
enforced.
The alternatives range from parole to a program currently
piloted that was described earlier called the intensive
supervised appearance program. Congress, actually in 2006,
appropriated $43 million to the Department of Homeland Security
for alternatives to detention and lauded the program.
And my testimony includes more detailed language on this.
But within that language and from DHS reports to Congress, the
appearance rates for people within the ISAP program is at 94
percent. So they are effective in--appearance.
The cost is far less. At $22 a night, the cost is far less
than the average $95 a night for traditional detention. And for
family detention, the average daily cost per individual is more
like $200 a day.
The Corrections Corporation of America receives $2.8
million per month to run the Hutto facility. This is based on a
full capacity of 512, and they receive this although the
facility has not been at capacity since its opening.
At the Berks facility, the other family facility, we met
with a woman who had been detained with her 15-year-old son for
9 months. She was detained after going to pick her son up from
ORR custody, where he had been apprehended after crossing the
border to join her, and she thought that she was only going to
pick him up and then return home, so she left her 1-year-old
U.S. citizen child at home with a neighbor, thinking she would
return, you know, the next day or within the day.
Instead, she was detained and has been held at Berks
without seeing her baby for 9 months.
A program such as ISAP or another program which I will
describe shortly would be a much more appropriate, cost-
effective and efficient way of dealing with this issue.
Nongovernmental organizations have also contracted with
immigration services--
[The statement of Ms. Brane follows:]
Prepared Statement of Michelle Brane
March 15, 2007
The U.S. Department of Homeland Security (DHS) arrests over 1.6
million undocumented people each year, of which over 230,000 are
subsequently held in administrative immigration detention.\1\ The
conditions and terms of immigration detention in the U.S. are
equivalent to prison, where freedom of movement is restricted, and
detainees wear prison uniforms. This is the case even though under U.S.
law an immigration violation is a civil offense, not a crime.
Nevertheless, the U.S. uses facilities owned and operated by
Immigration and Customs Enforcement (ICE), the enforcement bureau
within DHS, in addition to over 300 local and county jails from which
ICE rents beds on a reimbursable basis.\2\ Only half of these
immigrants held in detention have actual criminal records, yet more
than half of them are held in jails where non-criminal immigrants are
mixed with the prison's criminal population.\3\ In the case of families
held toghether, none have a criminal conviction or background, and over
80% are held in a former prison where freedom of movement is restricted
and children and their parents sleep in prison cells.
---------------------------------------------------------------------------
\1\ ``Detention and Removal of Illegal Aliens,'' Office of
Inspector General, Department of Homeland Security, April 2006;
www.ice.gov, August 7, 2006; ``Detention and Removal Operations:
Alternatives to Detention,'' ICE Fact Sheet dated July 14, 2004, http:/
/www.ice.gove/pi/news/factsheets/06170detFS2.htm, last modified March
17, 2006.
\2\ ``Treatment of Immigrant Detainees Housed at Immigration and
Customs Enforcement Facilities,'' Office of Inspector General,
Department of Homeland Security, December 2006, pp 2, available at
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf.
\3\ ``Critics Decry Immigrant Detention Push,'' Associated Press,
June 25, 2006, stating that over 57% of ICE detainees are held in local
and county jails.
---------------------------------------------------------------------------
Dominica, a pregnant woman detained at Hutto with her two
daughters, pointed out the impact that this penal environment has on a
families' health and well-being, telling us:
At night we all sleep together in the bottom bunk of our cell
because we are afraid. As my daughter Nelly says, ``If you aren't good,
they will take you away from your mom.''
I am almost seven months pregnant. The doctor has told me for
months that I need to eat more. But I can't. The food doesn't work here
and I can't eat it. We don't get much time for meals--only a maximum of
20 minutes--and I have to feed my children first. They do not eat
quickly. We are not allowed to take food out of the cafeteria, even if
we haven't had time to finish. Something like bread or an apple--they
take it away. It is so sad to throw something like that away because we
couldn't eat it fast enough.
My mother has legal status in the United States. I am applying for
asylum and am eligible for parole. But I requested parole over two
months ago and I still haven't received a response. I'm afraid that I
will have my baby in jail.\4\
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\4\ Interview conducted by Michelle Brane, Don T, Hutto Residential
Center, December 4, 2006, the name has been changed to protect the
individual while her case is pending.
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Even without criminal convictions, immigrants may remain detained
for months or even years as they go through procedures to decide
whether they are eligible to stay in the U.S. or, after being issued a
final order of removal, as the U.S. arranges for their deportation. The
Department of Homeland Security has increasingly failed to follow its
own policy directives for paroling these asylum seekers.\5\ In
addition, several recent studies and reports have demonstrated that the
Department has failed to comply with its own detention standards at
these facilities. The recent report from the Department of Homeland
Security Office of the Inspector General found violations of the
Immigration and Customs Enforcement's own Detention standards at all
five adult facilities it visited, including failure to provide timely
and responsive medical care and a safe and appropriate environment.\6\
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\5\ Asylum-seekers are technically eligible for parole. (see:
Memorandum from Office of INS Deputy Commissioner, ``Implementation of
Expedited Removal,'' March 31, 1997, reprinted in 74 Interpreter
Releases (April 21, 1997). Sec. 212(d)(5)(A) reads ``The Attorney
General may, except as provided in subparagraph (B) or in section
214(f), in his discretion parole into the United States temporarily
under such conditions as he may prescribe only on a case-by-case basis
for urgent humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of such
alien shall not be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the Attorney General,
have been served the alien shall forthwith return or be returned to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the United States.'') Official DHS policy
tends to favor their release so long as their identity has been
verified, they have established a credible fear of return, demonstrated
they have community ties, and pose no risk to national security.
However, parole release rates for asylum seekers vary widely depending
upon where in the country the individual is detained, ranging from
districts that have rather liberal parole policies to districts that
parole virtually no one. For example, in FY 2003, only 0.5% of asylum
seekers subject to expedited removal were released in the New Orleans
district prior to a decision on their case. By contrast, during the
same year, in Harlingen, Texas 98% of asylum seekers were released on
parole. Despite these dramatic inconsistencies, DHS has not promulgated
regulations to promote a consistent implementation of parole criteria.
The authority to grant parole rests with ICE, the same authority that
detains asylum seekers and there is no independent review of parole
decisions, not even by an immigration judge. (See U.S. Commission on
International Religious Freedom, Report on Asylum Seekers in Expedited
Removal, (Washington, D.C., February 8, 2005))
\6\ Department of Homeland Security Office of the Inspector
General, Treatment of Immigration Detainees Housed at Immigration and
Customs Enforcement Facilities, Report No. OIC-07-01, December 2006. p.
1-2.
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Rebecca, detained at Hutto with her three sons, underscored the
reality of these health concerns, stating:
My children and I were sick a lot but we didn't receive good
medical care. Mostly the guards told us not to bother them with sick
requests. But sometimes I would try anyway. My children all had a skin
infection but I couldn't get any medicine for them until they began to
bleed from the rash. My son vomited frequently, but when I asked for
medical attention the staff told me that they would need to see vomit
to believe that he was sick. Another time I had uterine pain, and I
went to see the nurse. The nurse told me that she wasn't allowed to
prescribe medicine and put me on the list of detainees who needed to
see the doctor. But I had to wait for the doctor to be called in on an
emergency. The doctor doesn't have time to see everybody because he's
only there one day a week. Finally, more than a week later, the doctor
came for an emergency call in the middle of the night, and the guards
woke my children and me up at 3:00 am and took us to see him.\7\
---------------------------------------------------------------------------
\7\ Interview conducted by Emily Butera, Don T, Austin, Texas,
December 5, 2006, the name has been changed to protect the individual
while her case is pending.
---------------------------------------------------------------------------
For all immigrant detainees, ICE reported an average stay of 64
days in 2003 (32 percent for 90 days or longer).\8\ By contrast,
asylum-seekers who were eventually granted asylum spent an average of
10 months in detention, with the longest period being 3.5 years.\9\
Some individuals who have final orders of removal, such as those from
countries with whom the U.S. does not have diplomatic relations or
those from countries that refuse to accept the return of their own
nationals, may languish in detention indefinitely.\10\ At the Berks
Family Shelter in Pennsylvania we met with a woman asylum seeker and
her three young daughters who had been detained for more than two
years.
---------------------------------------------------------------------------
\8\ US Detention of Asylum Seekers and Human Rights, By Bill
Frelick, Amnesty International USA, March 1, 2005, http://
www.migrationinformation.org/Feature/display.cfm?id=296
\9\ Id. citing From Persecution to Prison: The Health Consequences
of Detention for Asylum Seekers. Boston: PHR and the Bellevue/NYU
Program for Survivors of Torture, 2003.)
\10\ Zadvydas v. Davis, 533 U.S. 678 (2001), held that the US does
not have the power to hold non-citizens indefinitely in these
situations, required a case-by-case basis review for supervised release
of detainees within a reasonable period after the non-citizens are
ordered removed. Unfortunately, these reviews mandated by Zadvydas have
never operated effectively and most detainees do not receive timely
custody reviews and fewer are released as a result of these
determinations. In a series of reports, CLINIC tracked these review
programs and found them to be empty promises for most indefinite
detainees. For more information see http://www.cliniclegal.org/
Programs/IndefiniteDetainees.html.
---------------------------------------------------------------------------
Unless other reasons exist, such as danger to the community or
threat to national security, detention is an inefficient solution for
asylum seekers or individuals for whom removal is not a possibility.
For such situations, where detention does not meet the ends for which
it is intended, the individual should either be released on parole or
to an alternative to detention program so that detention space is used
in an effective and humane manner. DHS has systems in place to
facilitate this, but continues to expand detention rather than utilize
these other demonstrably workable options.
On any given day the U.S. government has the capacity to detain
over 600 men, women and children apprehended as family units along the
U.S. border and within the interior of the country. The detention of
families expanded dramatically in 2006 with the opening of the new 512-
bed T. Don Hutto Residential Center. This facility is owned and
operated by the Corrections Corporation of America (CCA), a private
company that is the founder of the private corrections industry and
owns and operates correctional facilities across the country. The Hutto
facility has been at the center of a flurry of media reports
criticizing the harsh treatment of families, and in particular of
children.\11\
---------------------------------------------------------------------------
\11\ See Sylvia Moren, Detention Facility for Immigrants
Criticized, Organizations Laud DHS Effort to Keep Families Together but
Call Center a `Prison-Like Institution, Washington Post February 22,
2007, p A03; Lisa Ogle, Williamson orders more schooling for detainee
kids, In renewing jail contract, court says Taylor facility must follow
state and federal education guidelines, American Statesman, January 31,
2007; Don't punish children for acting their age. Our Opinion:
Mistreatment of Families in Immigration Prisons Must End, The Miami
Herald, Editorial, March 7, 2007; Hernan Rozemberg, Center that houses
detained families scrutinized, San Antonio Express News, February 10,
2007; Paul Meyer, Media gets look at immigrant center, The Dallas
Morning News, February 10, 2007; Nicole Gaouette and Miguel Bustillo,
Immigration's net binds children too, Los Angeles Times, February 10,
2007; Ralph Blumenthal, U.S. Gives Tour of Family Detention Center That
Critics Liken to a Prison New York Times, February 10, 2007; and over
200 other media outlets.
---------------------------------------------------------------------------
The recent increase in family detention represents a major shift in
the U.S. government's treatment of families in immigration proceedings.
The Department of Homeland Security has presented this shift as the end
of ``Catch and Release,'' but the situation is more complex. This one
size fits all approach to deterring by detaining has unintended
consequences, including creating a situation in which the US government
is violating its own standards for care and custody, as well as its
obligations under international law. In addition, this emerging
preference for family detention is an effort to comply with a
Congressional directive to preserve family unity, but the policies and
procedures for family detention in their current guise are effectively
undermining Congress's intent. Prior to the opening of Hutto, the
majority of families were either released together from detention or
separated from each other and detained individually. Children were
placed in the custody of the Office of Refugee Resettlement (ORR)
Division for Unaccompanied Children's Services, and parents were
detained in adult facilities.
Congress discovered this and took immediate action to rectify the
situation, in keeping with America's tradition of promoting family
values. In the report language of the 2006 appropriations bill Congress
articulated concern over the on-going separation of parents from their
children, some as young as nursing infants, during DHS detention. In
S.Rept. 109-273 (2006), the Senate ``directs ICE to submit a report by
February 8, 2007, assessing the impact of the Hutto Family Center in
Williamston, Texas, on the number of families required to be separated,
and providing updated forecasts of family detention space needs for the
next 2 years.'' In H.Rept. 109-476 (2006), the House of Representatives
``encourages ICE to work with reputable non-profit organizations to
consider allowing family units to participate in the Intensive
Supervision Appearance Program, where appropriate, or, if detention is
necessary, to house these families together in non-penal, homelike
environments until the conclusion of their immigration proceedings.''
Such Congressional directives were intended to preserve and protect
the role of the family as the fundamental unit in our society. However,
ICE chose to develop a penal detention model for the detention of
families with no criminal backgrounds, that is fundamentally anti-
family and un-American.
This Committee, therefore, should insist that DHS submit its report
to Congress as mandated by Congress for February 8, 2007 concerning
family detention. Congress should also insist that DHS articulate the
specific steps it will take to work with non-profit organizations to
facilitate family participation in alternatives to detention such as
the ISAP program and housing in non-penal, homelike environments.\12\
---------------------------------------------------------------------------
\12\ A homelike setting is not akin the ``Hutto Family Center'', a
euphemism, since ``the Hutto Family Center'' is a private prison
operated for profit which houses over 500 members of family units with
parents and children in prison uniforms at any given time.
---------------------------------------------------------------------------
Lutheran Immigration and Refugee Service and the Women's Commission
for Refugee Women and Children visited both the T. Don Hutto
Residential Center and the Berks Family Shelter Care Facility in the
period between October 2006 and January 2007 and talked with detained
families as well as former detainees. What we found was disturbing:
Hutto is a former criminal facility that still looks
and feels like a prison, complete with razor wire and prison
cells.
Some families with young children have been detained
in these facilities for up to two years.
The majority of children detained in these facilities
appeared to be under the age of 12.
At night, children as young as six are separated from
their parents.
Separation and threats of separation were used as
disciplinary tools.
People in detention displayed widespread and obvious
psychological trauma. Every woman we spoke with in a private
setting cried.
At Hutto pregnant women received inadequate prenatal
care.
Children detained at Hutto received one hour of
schooling per day.
Families in Hutto received no more than twenty minutes
to go through the cafeteria line and feed their children and
themselves. Children were frequently sick from the food and
losing weight.
Families in Hutto received extremely limited indoor
and outdoor recreation time (only one hour per day, five days a
week) and children did not have any soft toys.
Access to Counsel is extremely limited due to the
remote location.
Some changes have been made since media attention and our report
``Locking Up Family Values: The Detention of Immigrant Families'' \13\
raised questions about the Hutto facility in particular. Children at
Hutto now receive more than one hour of recreation five days a week,
they receive 8 hours of education a day, razor wire has been removed
from the perimeter of the facility, children are no longer required to
wear uniforms, hair conditioner is now provided free of charge, and
accommodations have been made in the cafeteria including baked potato
instead of mashed and a spice bar. However, these changes are cosmetic
and do not address the fundamental issue that the system of family
detention is overwhelmingly inappropriate for families and that the
Department of Homeland Security has failed to consider more
appropriate, effective and cost efficient alternatives. Immigration and
Customs Enforcement has initiated discussions to develop a set of
standards for these facilities, but thus far there has not been willing
to discuss an end to family detention or the development of a non-
penal, homelike model. Yet the current system of family detention,
which relies on a prison model, is not appropriate or efficient for
these reasons:
---------------------------------------------------------------------------
\13\ Women's Commission for Refugee Women and Children and Lutheran
Immigration and Refugee Service, Locking Up Family Values: The
Detention of Immigrant Families, New York, February 2007, (available at
www. womenscommission.org)
---------------------------------------------------------------------------
The model strips parents of their role as arbiter and
architect of the family unit.
It places families in settings modeled on the criminal
justice system.
There are no licensing requirements for family
detention facilities because there is no precedent for family
detention in the United States.
There are no standards for family detention, but both
facilities violated the 1996 Flores v. Reno settlement
agreement outlining standards for children and Immigration and
Customs Enforcement Detention Standards.\14\
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\14\ Stipulated Settlement Agreement, Flores v Reno, Case No CV85-
4554-RJK (C.D. Cal. 1996) and U.S. Immigration and Customs Enforcement,
Detention Operations Manual. http://www.ice.gov/partners/dro/opsmanual/
index.htm.
---------------------------------------------------------------------------
In the Homeland Security Act of 2002 (HSA), Pub L. No. 107-296 S.
49, 116 Stat. 2153 (2002), Congress transferred the responsibilities
for care, custody and placement of unaccompanied children from Legacy
Immigration and Naturalization Service to the ORR, acknowledging that
the INS had a poor track record in caring for children over the last
two decades. The INS suffered from a fundamental conflict of interest
while acting as police officer, prosecutor and guardian of the children
at the same time. Additionally, the INS typically prioritized law
enforcement considerations over child welfare considerations in
violation of the Flores Settlement. For example, the INS placed one
third of unaccompanied children, including those children with very
minor behavioral problems and those lacking any serious physical
threat, in secure detention juvenile jails due to lack of bed space in
shelter facilities.
Neither of the family detention facilities currently in use
provides an acceptable model for addressing the reality that there are
families in our immigration system. Although there is precedent in the
adult detention system for the use of alternatives to detention and
other pre-hearing release systems,\15\ The Department of Homeland
Security has unfortunately made no effort to expand these programs to
include families.
---------------------------------------------------------------------------
\15\ See Appendix D, ``UNHCR Report
on Alternatives to Detention of Asylum
Seekers and Refugees.''
---------------------------------------------------------------------------
Based upon these findings, our report recommends the
following systemic changes to the U.S. government?s treatment of
families in immigration proceedings:
Discontinue the detention of families in prison-like
institutions.
Parole asylum seekers in accordance with international
standards and ICE's own policy guidelines.
Expand parole and release options for apprehended
families.
Implement alternatives to detention for families not
eligible for parole or release.
House families not eligible for parole or release in
appropriate, nonpenal, homelike facilities.
Expand public-private partnerships to provide legal
information and pro bono legal access for all detained
families, and to implement alternative programs.
The Department of Homeland Security has presented the dilemma of
what to do with these families as a choice between catch and release,
splitting families, or detaining them in facilities like Hutto. We
acknowledge that the appearance rates under ``catch and Release'' were
problematic. We also acknowledge DHS's concerns regarding trafficking
and cases in which prospective migrants would ``rent'' children to
accompany them on the border crossing, thereby ensuring that they would
be released on their own recognizance should they be caught.\16\
However, the concerns regarding trafficking can be addressed through
more rigorous screening of family relationships and are already being
addressed through ICE's new policy of fingerprinting everyone who is
apprehended--including children--and entering them into a database.
With this new procedure, any child who comes through more than once
with a different adult will be identified. This practice both protects
children from trafficking and serves as a deterrent to traffickers. The
detention of families is not necessary or helpful in addressing
trafficking concerns. The current approach fails to take into
consideration both Congress's directive to explore alternatives and the
reality that alternatives exist. Such alternatives are less costly to
the taxpayer while ensuring that immigrants in proceedings appear for
their hearings.
---------------------------------------------------------------------------
\16\ Department of Homeland Security
Immigration and Customs Enforcement, ``DHS
Closes Loopholes by Expanding Expedited
Removal to Cover Illegal Alien
Families,'' news release, May 15, 2006,
http://www.ice.gov/pi/news/newsreleases/articles/060516dc.htm.
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These alternatives range from releasing specific groups such
as asylum seekers, on their own recognizance or `paroling' them, to
programs currently in use through an Immigration and Customs
Enforcement Program known as ISAP--the Intensive Supervised Appearance
Program. In addition, our criminal justice system uses a wide range of
pre-hearing release programs that are effective and cost efficient.
Some of these have already been tried in the immigration context. These
alternative programs are infinitely less expensive than traditional
detention, are more humane, and still meet the valid enforcement
concerns of the government. Some government-initiated programs labeled
as ``alternatives to detention'' may in fact be ``alternative forms of
detention.'' This is the case if they impose undue restrictions on an
individual's liberty, even if the individual is not physically held in
a prison or prison-like setting. The ideal model for an alternative to
detention program for immigrants in the U.S. creates partnerships
between DHS and private, non-profit organizations that are granted the
responsibility to supervise and refer people to community services.
These programs, as explained below, have shown great success. The use
of detention should be limited to situations when it is necessary and
proportional. There are instances in which detention may be the only
appropriate way of protecting community safety or national security,
ensuring appearance rates at immigration hearings, or guaranteeing
effectuation of orders of removal. Beyond these limited justifications,
however, detention is the most expensive and inhumane way of achieving
results that may be met through alternative programs. Nevertheless, DHS
continues to expand its detention capacity, despite the availability of
effective alternative programs.
In the past decade, the use of detention as an immigration
enforcement mechanism has tripled, with detention becoming more the
norm than the exception in U.S. immigration enforcement policy. In
1996, the INS \17\ had a daily detention capacity of 8,279 beds.\18\ By
2006, that daily capacity had increased to 27,500 with plans for future
expansion.\19\ At an average cost of $95 per person/per day,
immigration detention costs the U.S. government $1.2 billion per
year.\20\ Thousands of those in immigration detention are individuals
who, by law, could be released. Two such groups are asylum seekers
without sponsors for parole and people whose removal orders are over 90
days old and who pose no danger to the community or national security
of the United States. Both of these groups are in need of alternative
programs as holding them any longer than immediately necessary is not
only inhumane, it is fiscally irresponsible and an inefficient and
ineffective use of detention. While the absconding rate for immigration
cases in general may be high--there is no indication that it is high
for these particular groups and in fact community based alternatives
programs have shown that the large majority (up to 96%) of these
individuals appear for their hearings when released.
---------------------------------------------------------------------------
\17\ The Homeland Security Act of 2002 abolished the Immigration
and Naturalization Services (INS) and created three separate
immigration bureaus now within the Department of Homeland Security.
These three agencies consist of the U.S. Citizenship and Immigration
Services (USCIS), Customs and Border Protection (CBP) and Immigration
and Customs Enforcement (ICE). Since 2003, ICE has had jurisdiction
over immigration enforcement, including detention and removal
responsibilities.
\18\ U.S. Commission on Immigration Reform, Becoming An American:
Immigration and Immigrant Policy, September 1997, pp. 139, 140.
\19\ DHS Fact Sheet: ICE Accomplishments in Fiscal Year 2006,
Release Date: October 30, 2006, stating, ``ICE also increased its
detention bed space by 6,300 during the fiscal year 2006, bringing the
current number of funded beds to 27,500 immigration detainees.''http://
www.dhs.gov/xnews/releases/pr_1162228690102.shtm
\20\ ``Immigration Enforcement Benefits Prison Firms,'' The New
York Times, July 19, 2006; ``Detention and Removal of Illegal Aliens,''
Office of Inspector General, Department of Homeland Security, April
2006; www.ice.gov, August 7, 2006.
---------------------------------------------------------------------------
In H. Rept. 109-699 (2006), Congress appropriated a record funding
of $43,600,000 to the Department of Homeland Security for alternatives
to detention for detained adults. According to H. Rept. 109-476 (2006),
the House of Representatives explained that ``The Alternatives to
Detention program addresses aliens who are not mandatory detainees, but
are deemed likely to appear at their immigration hearings. Programs for
electronic monitoring devices and telephonic reporting, and especially
the intensive Supervised appearance Program (ISAP), contribute to more
effective enforcement of immigration laws at far less cost ($22/night)
than for detention ($95/night). The first full year of the ISAP program
has seen significant success with 94 percent of participants in the
eight pilot cities appearing at immigration proceedings, compared to 34
percent for non-ISAP participants. In at least one case, the results
showed a 98 percent appearance rate, a much higher rate of compliance
with court orders, and gained EOIR agreement to expedite such cases.
The Committee recommends an additional $5,000,000 for this promising
program, with the expectation that it be expanded to at least two more
cities.''
In FY 2007, Congress appropriated an increase of $16.5 million to
DHS in order to expand its alternatives to detention programs such as
ISAP. DHS, however, did not spend this $16.5 million on alternatives
but instead used it to repay accounts which supplemented the FY 2006
funding. The total increase in FY 2007 therefore amounted to
approximately $5,388,000.
In appropriating funds to DHS for alternatives to detention,
Congress has indicated that its intent is to fund community-based,
supervised release programs modeled after the Vera Institute of
Justice's Appearance Assistance Project (Vera Project). The Vera
Project was a three year study (February 1997--March 2000) of a
supervised release/assistance program funded by INS. It studied over
500 participants at both general and intensive levels of supervision in
three groups: asylum seekers, people convicted of crimes and facing
removal, and undocumented workers from detention facilities in the New
York area. Generally, the Vera Project proved to be significantly less
expensive than detention. Overall, 91% of non-citizens released to the
Vera Project appeared at all required hearings, compared to a 71%
appearance rate for comparison groups of non-citizens who had been
released on bond or parole but did not have any of the extra
supervision of the Vera Project.
ICE's main alternatives program, ISAP, was commenced in July 2004
and has been operated in eight cities: Baltimore, Philadelphia, Miami,
Kansas City, St. Paul, Denver, San Francisco and Portland with 1,600
participants including asylum seekers, immigrants undergoing removal
proceedings and others. The FY 2007 increase allowed for the expansion
of ISAP to two additional sites.
The Intensive Supervised Appearance Program (ISAP) is a pilot
program for aliens who who are not subject to mandatory detention. ICE
has contracted with an organization called Behavioral Interventions to
run ISAP. Participants are assigned to a case specialist who monitors
them with tools such as electronic monitoring (bracelets), home visits,
work visits and reporting by telephone. Case specialists will also
assist participants in obtaining pro-bono counsel for their hearings
and help them to receive other types of assistance to which they may be
entitled and which help ensure appearance. The Department of Homeland
Security has reported that ISAP has a 94% appearance rate. It also
costs a fraction of what formal detention costs. While some detainees
in the current system are in expedited removal and held for short
periods of time and therefore it may not be practicable to assign them
to programs like ISAP, many are asylum seekers or have court cases
pending and as mentioned above, are detained for longer periods. In the
case of the Hutto facility--most of the families detained are seeking
asylum and will have cases pending in court for several months. The
costs of the ISAP program are approximately $22 per individual per day
as opposed to an average of about $95 a day for detention and closer to
$200 a day for family detention.
Reports from the field indicate that the ISAP program is being used
for persons who would not normally be detained at all instead of as an
alternative to detention. The program is a better solution for
resolving ``catch and release'' than the tent cities and traditional
prison facilities currently being used by the Department. It is more in
keeping with our American value and a more efficient use of tax
dollars.
The government pays the Corrections Corporation of America (CCA)
$2.8 million dollars per month to run the Hutto facility in Taylor
Texas. This sum is intended to cover the expenses of running the
facility at its full capacity of 512 individuals. Currently and since
its opening the facility has not been at full capacity and has housed
an average of about 400 individuals, at a cost to the government of
$212 a day per person costing the taxpayer $33.6 million per year or
roughly $31 million over the cost of using ISAP. Although a simple
mathematical calculation would suggest that with this low average
occupancy rate CCA should have additional resources in their budget for
the administration of Hutto, charitable organizations have been
requested to provide toys and religious materials for the facility.
Williamson County receives $1 a day per person detained.
At the Berks facility we met a woman who had been detained with her
15 year old son after going to pick him up from ORR custody where he
had been held after being apprehended crossing the border to join her.
She had left behind her U.S. citizen infant son with a neighbor,
thinking that she would only be away for one day. When we met her she
had not seen her baby in over 9 months. The child was still with the
neighbor and the child's father was visiting occasionally. This
situation of U.S. citizen children being separated from their parents
and left in precarious situations is unnecessary and can be avoided
with programs that already exist.
NGO based Alternative Pilot Programs have been shown to be
effective as well. Non-governmental organizations under contract to the
immigration service have provided supervision, and, in some cases,
housing in community shelters and assistance in locating pro bono
attorneys to help with their claims. These projects have been cost-
effective and have produced high appearance rates at hearings. A study
conducted by the Vera Institute for Justice between February 1997 and
March 2000 found that alternatives saved the federal government almost
$4,000 per person while showing a 93% appearance rate for asylum
seekers at all court hearings.\21\ Other NGO programs have met with
similar success. In New Orleans, the legacy INS released asylum seekers
and people with over 90-day-old removal orders to a program run by
Catholic Charities with a 96% appearance rate.\22\ In another program
coordinated by Lutheran Immigration and Refugee Service (LIRS), the
legacy INS released 25 Chinese asylum seekers from detention in Ullin,
IL to shelters in several communities. This program achieved a 96%
appearance rate.\23\ There are currently NGO's across the country that
could modify or expand their current programs if approached by the
Department of Homeland Security as encouraged in H.Rept. 109-476
(2006), where the House of Representatives encouraged ``ICE to work
with reputable non-profit organizations to consider allowing family
units to participate in the Intensive Supervised Appearance Program,
where appropriate. .''
---------------------------------------------------------------------------
\21\ Vera Institute of Justice, Testing Community Supervision for
the INS: An Evaluation of the Appearance Assistance Program, June 7,
2000, Volume I, pg. 32.
\22\ Joan Treadway, ``Detainees get chance to change their lives,''
New Orleans Times Picayune, Jan. 22, 2001, pg. B-3.
\23\ Esther Ebrahimian, ``The Ullin 22: Shelters and Legal Service
Providers Offer Viable Alternatives to Detention,'' Detention Watch
Network Nes, August/September 2000, p. 8.
---------------------------------------------------------------------------
In sum, DHS has declared an end to catch and release and presents
detention as the only solution, citing lack of appearance at hearings
as the primary reason. There are however many less restrictive forms of
detention and many alternatives to detention that would serve our
nation's protection and enforcement needs more economically, while
still providing just and humane treatment. In the rare cases in which
detention is necessary, DHS should cease to contract with companies
imposing a corrections model on a population that is in administrative
detention. Standards should be effectively enforced. The detention of
families where detention is necessary should be in non-penal, homelike
environments as recommended by Congress. Parole policies should be
implemented. DHS should work with the NGO community to develop
alternative programs and DHS should expand its use of ISAP to families
and others who would fit well into the program.
We understand that DHS is responsible for the difficult task of
protecting our borders and enforcing immigration laws. We are confident
that our recommendations provide a valuable framework for enforcing our
laws, ensuring appearance at immigration hearings, and preserving
American values through the humane and just treatment of those seeking
protection at our borders. I welcome the interest this committee has
taken in this matter and encourage you to continue to press for viable,
cost effective solutions.
I declare under penalty of perjury that the forgoing is true and
correct. Executed on this 13th Day of March 2007.
Ms. Sanchez. Ms. Brane, I am sorry, you have doubled your
time, so we will ask for specifics during question time, but I
really need to get to the other witnesses here.
Next on the list would be Ms. Fiflis, to summarize your
statement, please, in 5 minutes.
STATEMENT OF CHRISTINA FIFLIS, MEMBER, COMMISSION ON
IMMIGRATION, AMERICAN BAR ASSOCIATION
Ms. Fiflis. Thank you, Madam Chair and Ranking Member
Souder.
As noted, I am an immigration practitioner in the Denver
metro area. I currently represent over 120 individuals who have
been detained in the El Paso Servicing Process Center or in the
Denver GEO Detention Center.
But I am here as a member of the American Bar Association
Commission on Immigration. And on behalf of the ABA, I appear
at the request of ABA President Karen Mathis to express the
ABA's views on a number of issues related to immigration
detention, in particular our ongoing concern over the lack of
meaningful access to legal information and legal representation
experienced by many immigrants in detention. We appreciate this
opportunity to share our views.
The ABA, as you know, is the world's largest voluntary
professional organization, with over 400,000 members worldwide.
We continuously work to improve the American system of justice
and to advance the rule of law.
The Commission on Immigration directs the association's
efforts to ensure fair treatment and full due process rights
for immigrants and refugees in the United States. The
commission engages in advocacy, education and outreach, and
operates pro bono programs that serve the most vulnerable
immigrant populations, including asylum seekers and
unaccompanied minors.
The ABA is deeply committed to ensuring that foreign
nationals in the United States receive fair treatment under the
nation's immigration laws. The importance of meaningful access
to legal representation and materials for individuals in
immigration detention cannot be overstated.
While immigrants are in administrative, as opposed to
criminal proceedings, the consequences of removal are severe.
Removal may result in permanent separation from family members
and communities, or violence and even death for those fleeing
persecution, yet immigrants have no right to appointed counsel,
and those in detention must either try to find lawyers or
represent themselves from inside detention facilities.
Furthermore, in addition to facing cultural, linguistic, or
educational barriers, and traumatization, particularly in the
case of asylum seekers, detainees have virtually no direct
access to sources of evidence or witnesses; legal
representation is indispensable.
The many obstacles to obtaining legal representation faced
by immigrants in detention are one reason that the ABA opposes
the detention of non-citizens in removal proceedings, except in
extraordinary circumstances, such as when an individual
presents a threat to national security or public safety or
presents a substantial flight risk.
The decision to detain a non-citizen should be made only in
a hearing that is subject to judicial review. We are concerned
about the growing reliance on detention, and instead support
humane alternatives that are the least restrictive necessary to
ensure that non-citizens appear in immigration proceedings.
When detention is used, uniform and consistent standards
are essential to ensure safe and humane conditions and protect
detainees' statutory and constitutional rights. For that
reason, during the late 1990s, the ABA engaged in a lengthy
negotiation process with the then-INS, currently ICE, to
develop current ICE detention standards.
The standards, which took effect in January 2001, are
comprehensive and encompass a diverse range of issues. The ABA
was instrumental in developing the four legal access standards,
which include access to legal materials; access to group
presentations on legal rights; telephone access; and
visitation.
An additional legal access standard, entitled detainee
transfers, was subsequently adopted by ICE, with the
encouragement and support of the ABA.
As a key stakeholder in developing the standards, the ABA
is committed to their full and effective implementation. In
2001, the Commission on Immigration established the Detention
Standards Implementation Initiative.
Under the initiative, the commission recruits volunteer
lawyers to participate in special delegations to tour selected
detention facilities and report their observations on standards
implementation, with an emphasis on legal access standards. The
delegation reports are then presented to ICE, and the findings
are discussed in regular meetings between ICE and the ABA.
While the development of the detention standards was a
positive step, ICE's annual inspection process alone is not
adequate to ensure detention standards compliance. In the 6
years that have passed since the standards went into effect,
the lack of legal enforcement mechanism has seriously
undermined their effectiveness.
For that reason, the ABA recently expressed its strong
support to the Secretary of Homeland Security for a petition
for rulemaking by several organizations to promulgate detention
standards into regulations. The ABA believes that promulgating
regulations would help ensure that detained immigrants are
treated humanely and have meaningful access to the legal
process.
The ABA regularly receives information on detention issues
through our own pro bono projects in Harlingen, Texas, and
Seattle, Washington, as well as from individual attorneys and
immigrant advocacy groups, and direct letters and phone calls
from detained immigrants around the country.
Since 2003, we have received letters from detainees at over
100 facilities across the United States. We would like to
highlight a few of the recurring issues that we believe are
cause for serious and continuing concern about the state of our
immigration detention system.
One of these issues is the transfer of detainees. In 2001,
the ABA adopted a policy opposing the involuntary transfer of
detainees to facilities that impede an existing attorney-client
relationship, opposing transfers to distant locations, opposing
the use and construction of detention space in remote areas
where legal assistance generally is not available for
immigration matters.
In 2004, the detainee transfer standard was added to ICE's
national detention standards, requiring ICE to take into
account whether a detainee is represented when deciding whether
to transfer him or her. Factors ICE must consider include,
according to the standard, ``whether the attorney of record is
located within reasonable driving distance of the detention
facility and where immigration court proceedings are taking
place.''
Despite this standard, we are aware that, over the past few
months, ICE has been regularly transferring hundreds of
immigration detainees who already have counsel from East Coast
facilities to the Port Isabel Detention Center in South Texas.
Legal services for indigent immigrant detainees in South Texas
are scarce, yet 3,200 detention beds are available.
Facilities on the East Coast are closer to metropolitan
areas, where representation is more abundant. Transfer
detainees can no longer meet with their attorneys, and the
local immigration judges regularly deny motions by counsel to
appear telephonically.
Existing counsel must either find local counsel to make
appearances, travel to south Texas, or withdraw. The service
providers in south Texas are only able to serve a fraction of
this high volume of detainees. These transfers are resulting in
a lack of access to counsel for detainees, which is precisely
what the transfer standard sought to prevent.
Another serious issue is lack of telephone access. Over the
past year alone, detainees in 16 states told us that they have
had difficulty using telephones. Without telephone access,
detainees cannot find counsel or obtain critical evidence and
other information to prepare their cases pro se.
ICE's telephone access standard provides for reasonable and
equitable access to telephones, with at least one telephone per
25 detainees, telephones in proper working order, quick
repairs, and free legal service provider and consulate calls,
among others.
Specific problems detainees report, however, include basic
mechanical issues, unavailability of phone cards for purchase,
exorbitant phone card fees, improper deduction of funds from
phone cards, inability to make free calls to consulates and
free legal service providers, all as required by the standards.
[The statement of Ms. Fiflis follows:]
Prepared Statement of Christina Fiflis
March 15, 2007
Madam Chair, Ranking Member Souder and Members of the Subcommittee:
Good Morning. My name is Christina Fiflis and I am a member of the
American Bar Association Commission on Immigration. On behalf of the
American Bar Association, I appear today at the request of ABA
President Karen Mathis to express the ABA's views on a number of issues
related to immigration detention, in particular our ongoing concern
regarding the lack of meaningful access to legal information and legal
representation experienced by many immigrants in detention. We
appreciate this opportunity to share our views.
The American Bar Association is the world's largest voluntary
professional organization, with a membership of over 400,000 lawyers,
judges and law students worldwide. The ABA continuously works to
improve the American system of justice and to advance the rule of law
in the world. The Commission on Immigration is comprised of 13 members
appointed by the ABA President, and directs the Association's efforts
to ensure fair treatment and full due process rights for immigrants and
refugees within the United States. The Commission advocates for
statutory and regulatory modifications in law and governmental practice
consistent with ABA policy; provides continuing education to the legal
community, judges, and the public about relevant legal and policy
issues; and develops and assists the operation of pro bono programs
that encourage volunteer lawyers to provide high quality representation
for immigrants, with a special emphasis on the needs of the most
vulnerable immigrant and refugee populations, including unaccompanied
immigrant children.
The ABA is deeply committed to ensuring that foreign nationals in
the United States receive fair treatment under the nation's immigration
laws. The importance of meaningful access to legal representation and
materials for individuals in immigration detention cannot be
overstated. While immigrants in detention are in administrative, as
opposed to criminal proceedings, the consequences of removal are
severe. Removal may result in permanent separation from family members
and communities, or violence and even death for those fleeing
persecution. Yet, immigrants have no right to appointed counsel and
must either try to find lawyers or represent themselves from inside
detention facilities. For all who face removal, legal assistance is
critical for a variety of reasons, including a lack of understanding of
our laws and procedures due to cultural, linguistic, or educational
barriers. Asylum seekers in particular may find it extremely difficult
to articulate their experiences or to discuss traumatic situations with
government officials. Detainees, however, face the additional obstacle
of having virtually no direct access to sources of evidence or
witnesses; legal representation is therefore indispensable.\1\
---------------------------------------------------------------------------
\1\ American Bar Association, American Justice Through Immigrants'
Eyes, 2004, at 53, available at http://www.abanet.org/publicserv/
immigration/americanjusticethroughimmigeyes.pdf. According to one
study, asylum seekers are four to six times more likely to succeed if
represented. See A. Schoenholtz and J. Jacobs, ``The State of Asylum
Representation: Ideas for Change,'' 16 G'town. Immig. L.J. 739--740
(Summer 2002). See also http://uscirf.gov/countries/global/
asylum_refugees/2005/february/legalAssist.pdf at 239.
---------------------------------------------------------------------------
The many obstacles to obtaining legal representation faced by
immigrants in detention is one reason that the ABA opposes the
detention of non-citizens in removal proceedings except in
extraordinary circumstances, such as when the individual presents a
threat to national security or public safety, or presents a substantial
flight risk. The decision to detain a non-citizen should be made only
in a hearing that is subject to judicial review. We are concerned about
the growing reliance on detention, and particularly about proposals to
increase the use of mandatory detention. The ABA instead supports the
use of humane alternatives to detention that are the least restrictive
necessary to ensure that non-citizens appear in immigration proceedings
For those that are detained, it is essential to provide uniform and
consistent standards to ensure that facilities housing federal
detainees are safe and humane and protect all detainees' statutory and
constitutional rights. For that reason, during the late 1990's, the
ABA, along with other organizations involved in pro bono representation
and advocacy for immigration detainees, engaged in a lengthy
negotiation process with the then-Immigration and Nationality Service
(now Immigration and Customs Enforcement, or ``ICE'') to develop the
current ICE Detention Standards. The Standards, which took effect in
January 2001, are comprehensive and encompass a diverse range of
issues, including access to legal services. The ABA was instrumental in
developing the four ``legal access'' standards, which include: Access
to Legal Materials; Access to Group Presentations on Legal Rights;
Telephone Access; and Visitation. As discussed below, an additional
``legal access'' standard, entitled Detainee Transfers, was
subsequently adopted by ICE, with the encouragement and support of the
ABA.
As a key stakeholder in developing the Standards, the ABA is
committed to their full and effective implementation. In 2001, the
Commission on Immigration established the Detention Standards
Implementation Initiative (Initiative). Under the Initiative, the
Commission recruits lawyers, law firms, and bar associations to
participate on a pro bono basis in special delegations to tour selected
detention facilities and report their observations on the facilities'
implementation of the Standards, with an emphasis on the four legal
access standards. The delegation reports are then presented to ICE and
the findings discussed in regular meetings between ICE and the ABA.
While the development of the Detention Standards was a positive
step, it appears that ICE's annual inspection process alone is not
adequate to ensure detention standards compliance. In the six years
that have passed since the Detention Standards went into effect, it has
become clear to us that the lack of a legal enforcement mechanism has
seriously undermined the effectiveness of the Standards. For that
reason, the ABA recently expressed its strong support to the Secretary
of Homeland Security for a petition for rulemaking by several
organizations to promulgate the Detention Standards into regulations.
The ABA believes that promulgating regulations would help ensure that
detained immigrants are treated humanely and have meaningful access to
the legal process.
Apart from the Detention Standards Implementation Initiative, the
ABA regularly receives information on detention issues through reports
from our own pro bono projects in Harlingen, Texas and Seattle,
Washington, as well as from individual attorneys representing detained
immigrants, national and local immigrant advocacy groups, and direct
letters and phone calls from detained immigrants around the country.
Since 2003, we have received letters from detainees at over one hundred
facilities across the United States. While limitations of time and
space prevent us from providing a comprehensive list of current
problems, we do want to highlight a few of the recurring issues that we
believe are cause for serious and continuing concern about the state of
our immigration detention system.
One of these issues is the transfer of detainees. In 2001, the ABA
adopted a policy opposing the involuntary transfer of detainees to
facilities that impede an existing attorney-client relationship,
transfers to distant locations, and the use and construction of
detention space in remote areas where legal assistance generally is not
available for immigration matters. In 2004, the Detainee Transfer
Standard was added to ICE's National Detention Standards, requiring ICE
to take into account whether a detainee is represented when deciding
whether to transfer him or her. Factors ICE must consider include
``whether the attorney of record is located within reasonable driving
distance of the detention facility and where immigration court
proceedings are taking place.'' \2\
---------------------------------------------------------------------------
\2\ http://www.ice.gov/doclib/partners/dro/opsmanual/
DetTransStdfinal.pdf
---------------------------------------------------------------------------
Despite this Standard, we are aware that over the past few months,
ICE has been regularly transferring hundreds of immigration detainees
from east coast facilities to the Port Isabel Detention Center (PIDC)
in South Texas.\3\ These individuals often have lawyers and family
members in the states where they were originally apprehended, and
facilities on the east coast are located closer to metropolitan areas
where legal representation is more widely available. Legal services for
indigent immigrant detainees in South Texas are scarce, yet 3,200 beds
are available for detainees at PIDC and the Willacy County Processing
Center in Raymondville, Texas. Detainees can no longer meet with their
attorneys, and the local Immigration Judges regularly deny motions by
counsel to appear telephonically for removal hearings. Existing counsel
must either find local counsel to make appearances, travel to South
Texas, or withdraw from their clients' cases. The service providers in
South Texas are only able to serve a fraction of the high volume of
detainees in need of assistance when their original attorneys are
forced to withdraw. These transfers are resulting in a lack of access
to counsel for detainees, which is precisely what the Transfer Standard
sought to prevent.
---------------------------------------------------------------------------
\3\ Locations include New York, Massachusetts, Virginia, and
Florida.
---------------------------------------------------------------------------
Another serious issue is lack of telephone access for detainees.
Over the past year alone, detainees in 16 states told us that they have
had difficulty using telephones. Without telephone access, immigrants
are cut off from the ability to find legal counsel or obtain critical
evidence or other information to prepare their case pro se. ICE's
Telephone Access Standard provides for reasonable and equitable access
to telephones, with at least one telephone per twenty-five detainees,
telephones in proper working order, quick repairs, and free legal
service provider and consulate calls, among other things.\4\ Specific
problems detainees report in their correspondence, however, include
basic mechanical issues, unavailability of phone cards for purchase,
exorbitant phone card fees, improper deduction of funds from phone
cards, inability to make free calls to consulates and free legal
service providers as required by the Standards, lack of receipt of the
Notice of Telephone Privileges as required by the Standards, lack of
posting and/or translation of phone use instructions, lack of privacy,
and an insufficient amount of phones per detainee.
---------------------------------------------------------------------------
\4\ http://www.ice.gov/doclib/partners/dro/opsmanual/teleacc.pdf.
---------------------------------------------------------------------------
Other common concerns regarding legal access relate to law
libraries and legal correspondence. Some report having no access to the
law library, while others indicate that there are insufficient or
outdated research materials \5\ and not enough functioning typewriters,
computers, or printers. We have also been told that mail either does
not arrive or is delayed, and legal mail (``Special Correspondence'')
is opened outside the presence of detainees and outgoing legal mail is
inspected, contrary to the Standards. Finally, some report a lack of
private consultation rooms for meetings with counsel. In July 2006, the
ABA provided this information to the Government Accountability Office
to assist in its review of ICE's iplementation of the Detention
Standards.
---------------------------------------------------------------------------
\5\ These statements are consistent with the report of the United
States Commission on International Religious Freedom, which indicated
that not one of the 18 facilities visited by USCIRF contained all the
materials (or updates) listed in DHS detention standards. See Craig
Haney, Report on Asylum Seekers in Expedited Removal, 186 (United
States Commission on International Religious Freedom, 2005).
---------------------------------------------------------------------------
In 2006, the ABA was one of several entities requesting that the
U.S. Department of Homeland Security's Inspector General (IG) conduct
an audit of ICE's compliance with the Detention Standards. In addition
to evaluating the legal access standards in particular, we requested
that the IG review detainee handbooks for accuracy and thoroughness.
The IG's recently issued report, Treatment of Immigration Detainees
Housed at Immigration and Customs Enforcement Facilities, highlighted
several of the issues that have consistently been reported to us year
after year.
Without appropriate access to legal resources and representation,
the only information detainees are oftentimes presented with comes from
federal law enforcement authorities. This can create serious issues of
concern. The ABA has received reports of what appears to be an
increasing and inappropriate use of stipulated removal orders.
Immigrants serving sentences for crimes including illegal entry are
approached by government officials while in custody, and warned that if
they do not sign a stipulated removal order, they will face lengthy
immigration detention and ultimate deportation. As a result, detainees
who may in fact be eligible for immigration relief such as asylum
perceive that they have no other choice but to sign the order or face
prolonged detention and certain deportation. Those who sign the orders
forego their right to appear before an Immigration Judge. Pursuant to
regulation, the Judge may ultimately sign the order provided he or she
determines that the individual's waiver was voluntary, knowing, and
intelligent,\6\ even without seeing or speaking with the individual.
---------------------------------------------------------------------------
\6\ 8 C.F.R. Sec. 1003.25
---------------------------------------------------------------------------
One of the ways that detained immigrants can be provided with
appropriate legal information is through Legal Orientation Programs
(LOP). The LOP program is administered by the Executive Office of
Immigration Review, and is currently in place in six detention
facilities around the country. Under this program, an attorney or
paralegal meets with the detainees who are scheduled for immigration
court hearings in order to educate them on the law and to explain the
removal process. Based on the orientation, the detainee can decide
whether he or she potentially qualifies for relief from removal.
Persons with no hope of obtaining relief--the overwhelming majority--
typically submit to removal. According to the Department of Justice,
LOPs improve the administration of justice and save the government
money by expediting case completions and leading detainees to spend
less time in detention.\7\ Since the inception of the program, the ABA
has provided LOPs at the Port Isabel Detention Center in South Texas,
and can unequivocally attest to the benefits that these presentations
bring both to detainees and the immigration court system. The ABA
supports expansion of the Legal Orientation Program to all detained and
non-detained persons in removal proceedings.
---------------------------------------------------------------------------
\7\ U.S. Department of Justice, Board of Immigration Appeals, ``The
BIA Pro Bono Project is Successful'' (Oct. 2004); U.S. Department of
Justice, Executive Office for Immigration Review, ``Evaluation of the
Rights Presentation'' (Jan. 2000).
---------------------------------------------------------------------------
In conclusion, the ABA is deeply concerned about the state of
immigration detention in the U.S. and wants to emphasize particularly
the need for accountability to ensure that detainees have consistent,
fair access to counsel and the legal system. We believe that a number
of steps should be taken to address these concerns, including:
promulgating immigration detention standards into regulation; using
humane alternatives to detention for those who do not present a
substantial flight risk, or threat to national security or public
safety; where detention is appropriate, providing detention bed-space
in populated areas where legal assistance is more readily available and
not transferring detainees away from existing counsel; and expanding
the Legal Orientation Program to individuals in immigration proceedings
nationwide. Each of these steps would significantly assist immigration
detainees' access to legal information and representation, a necessary
step toward addressing many of the serious problems in our immigration
detention system.
Thank you, again, for this opportunity to share our views.
Ms. Sanchez. Thank you. I am going to cut you off at this
point, because we are going to get to Mr. Cutler. And I am sure
we will have plenty of questions to ask you about the rest of
the standards.
Mr. Cutler, if you will, for 5 minutes.
STATEMENT OF MICHAEL CUTLER, FELLOW, CENTER FOR IMMIGRATION
STUDIES
Mr. Cutler. Sure.
Good afternoon. Chairwoman Sanchez, Ranking Member Souder,
it is an honor to testify before this committee on the
important issue of the detention of aliens seeking political
asylum in the United States.
And I hope that my perspectives, based on my many years
working at the former INS, can be helpful to you, as you
consider the critical issues concerning the issue of the
detention of illegal aliens in the United States.
Our nation has a proud tradition of providing refuge to
people fleeing persecution in their respective native
countries; however, we also know that those who would enter our
country to do harm to our country have found in our kindness
potential weakness.
While our nation's porous borders, especially the border
that separates the United States from Mexico, has received
quite a bit of attention, the reality is that it is estimated
that perhaps as many as 40 percent of the illegal aliens who
are present in the United States at the present time did not
enter our country by running our nation's borders and
circumventing the inspections process, but rather by entering
the United States through a port of entry and then going on to
violate the terms of their admission, overstaying their visas,
working illegally, or committing crimes.
Immigration benefit fraud is a huge problem within the
immigration bureaucracy and one that has been documented in a
number of GAO and OIG reports. False claims concerning
political asylum are simply a category of such fraud. There
have been numerous instances where an alien will apply for
political asylum as a last ditch effort to avoid deportation.
In some cases, aliens apply for political asylum as a
strategy to overcome his inability to secure a visa for the
United States. And among those who have gamed the system have
been terrorists.
Janice Kephart, a former counsel for the 9/11 Commission,
testified before the Senate Committee on the Judiciary on March
4, 2005, at a hearing entitled ``Strengthening Enforcement and
Border Security: The 9/11 Commission Staff Report on Terrorist
Travel.''
She made a couple of statements at that hearing about
political asylum worth considering today, as we consider issues
relating to political asylum. Quoting Janice, ``Political
asylum and naturalization are two of the benefits most
rampantly abused by terrorists.''
She also stated that, in her recent study of 111
terrorists, 23 lacked proper travel documents or sought to
avoid deportation and claimed political asylum. To cite a few
of the many examples of terrorists who exploited political
asylum to attempt to avoid being deported from the United
States, I will cite four prominent examples.
On July 31, 1997, Gazi Ibrahim Abu Mezer and an accomplice
were arrested by members of the New York City Police Department
when they received information that Mezer and his roommate had
constructed bombs they were planning to use in a suicide bomb
attack on the New York City subway system.
Prior to Mezer's arrest, while out on bail, he posted, in
conjunction with the INS, he filed an application for political
asylum in an effort to remain in the United States. Mezer was
subsequently found guilty of a number of serious crimes,
including violation of 18 USC 2332, conspiracy to kill a United
States citizen; 18 USC 924, knowingly and intentionally using
and carrying a firearm during and in relation to a crime of
violence; 18 USC 1546 and 3551, knowingly and intentionally
possessing a counterfeit alien registration card.
As a result of his conviction, he was sentenced to life
imprisonment.
On January 25, 1993, Mir Aimal Kansi, a citizen of Pakistan
who had applied for political asylum, waited outside the
headquarters of the CIA in Virginia with an AK-47. He opened
fire on vehicles driven by CIA employees arriving for work. He
killed two of those employees and wounded three others.
After a worldwide manhunt, he was arrested, brought to the
United States, tried, convicted and ultimately executed.
Ramsi Yousef, the mastermind of the first attack on the
World Trade Center complex on February 26, 1993, and Sheikh
Omar Abdel Rahman, the spiritual leader of the terrorists
involved in that attack, had more in common than the attack on
that World Trade Center complex that left six people dead,
hundreds injured, and approximately a half billion dollars in
damages inflicted on that iconic landmark and the surrounding
buildings. They had both applied for political asylum.
While the ``catch and release'' program implemented along
our nation's southern border has received much publicity with
the administration finally addressing that huge gap in the
Border Patrol operation, seeking to provide more detention
space for illegal aliens apprehended by the Border Patrol, and
a more expeditious removal procedure for aliens arrested by the
Border Patrol along the southern border.
However, the ``catch and release'' program has not only
plagued our nation's efforts to remove illegal aliens
apprehended by the Border Patrol; it also is a factor in the
interior enforcement program for which ICE bears the
responsibility.
Statistically, at least 85 percent of illegal aliens who
are released from custody fail to appear when they are required
to do so, either to show up for an immigration hearing or to
present themselves for removal once they have been ordered
deported. The notice to appear, the administrative instrument
that initiates a removal proceeding for an illegal alien, is
often referred to as a ``notice to disappear'' by cynical
immigration enforcement personnel.
It is essential that we provide adequate detention
facilities to make certain that aliens, who would likely
abscond if they had the opportunity, be denied that opportunity
to flee.
Because of the inherent risks to the safety and well-being
of our nation and our citizens, I would strongly urge that
aliens who apply for political asylum be kept in a detention
facility until their true identities can be determined, along
with a proper determination being made of their credible fear
should they be returned to their home country.
I believe that it is essential to provide comfortable
detention facilities for these aliens who are illegally in the
United States and have applied for political asylum, especially
if they are accompanied by their families.
In this perilous era, it is my judgment that, while our
officials conduct investigations of the bona fides of claims of
credible fear articulated by applicants for political asylum,
that we have the way to detain such aliens until they are
determined to pose no threat to our country and have, indeed,
met the requirements to be eligible to be granted political
asylum.
However, should an alien be proven to not be eligible to be
granted political asylum, whether because he committed fraud or
because he actually poses a threat to our national security,
retaining such an alien in custody would deny him the ability
to abscond and embed himself in our country.
When we look back into the history of the enforcement of
the immigration laws of our country, Ellis Island was the
gateway to our nation for so many of our forebears. Indeed, my
own mother first set foot on American soil when she stepped off
the ship that brought her to this country, and she stepped onto
Ellis Island, a few short years before the start of the
Holocaust in Europe that resulted in the death of many members
of my own family, including my grandmother for whom I am named.
Ellis Island was, in effect, the waiting room for the
United States that provided our immigration inspectors, public
health officers and other officials with ample opportunity to
properly screen aliens seeking to begin their lives anew in
this magnificent land of opportunity.
Our nation still needs to properly screen those who wish to
share the American dream, to make certain that we would have an
opportunity to seek to uncover those who might be hiding among
them and who, given the opportunity, would create an American
nightmare.
I look forward to your questions.
[The statement of Mr. Cutler follows:]
Prepared Statement of Michael W. Cutler,
March 15, 2007
Chairman Thompson, Ranking Member King members of Congress, ladies
and gentlemen, it is an honor to testify before this committee on the
important issue of the detention of aliens seeking political asylum in
the United States. I hope that my perspectives based on my many years
working at the former INS can be helpful to you as you consider the
critical issues concerning the issue of the detention of illegal aliens
in the United States as they apply for political asylum.
Our nation has a proud tradition of providing refuge to people
fleeing persecution in their respective native countries; however, we
also know that those who would enter our country to do harm to our
country have found in our kindness, potential weakness. While our
nation?s porous borders, especially the border the separates the United
States from Mexico has received quite a bit of attention, the reality
is that it is estimated that perhaps as many as 40% of the illegal
aliens who are present in the United States did not gain entry into our
country by running our nation's borders and circumventing the
inspections process at a port of entry, but did, in fact enter our
country through a port of entry and then went on to violate the terms
of their admission into the United States by overstaying their
authorized period of admission, securing illegal employment or becoming
involved in criminal activities.
Immigration benefit fraud is a huge problem within the immigration
bureaucracy and one that has been documented in a number of GAO and OIG
reports. False claims concerning political asylum are simply a category
of such fraud. There have been numerous instances where an alien will
apply for political asylum in a last ditch effort to avoid deportation.
In some cases, aliens apply for political asylum as a strategy to
overcome his inability to secure a visa for the United States. Among
those who have gamed the system to gain access to our country have been
terrorists.
Janice Kephart, a former counsel to the 911 Commission testified
before the Senate Committee on the Judiciary on March 4, 2005 at a
hearing entitled,--Strengthening Enforcement and Border Security: The
9/11 Commission Staff Report on Terrorist Travel. She made a couple of
statements at that hearing about political asylum worth considering
today as we consider issues relating to political asylum:
``Political asylum and naturalization are two of the benefits
most rampantly abused by terrorists.''
``In my recent study of 118 terrorists, 23 who lacked proper
travel documents or sought to avoid deportation claimed
political asylum''
To cite just a few of many examples of terrorists who exploited
political asylum to attempt to avoid being deported from the United
States I would ask you to consider four prominent cases:
On July 31, 1997 Gazi Ibrahim Abu Mezer and an accomplice were
arrested by members of the New York City Police Department when they
received information that Mezer and his roommate had constructed bombs
they were planning to use in a suicide bombing of the New York City
subway. Prior to Mezer?s arrest, while out on bail he posted in
conjunction with an arrest by the INS, he filed an application for
political asylum in an effort to remain in the United States. Mezer was
subsequently found guilty of a number of serious crimes including:
USC Sec. 2332; conspiracy to kill a U.S. citizen;
18 USC Sec. 924; knowingly and intentionally use and
carry a firearm during and in relation to a crime of violence;
18 USC Sec. Sec. 1546 and 3551; knowingly and
intentionally possess counterfeit alien registration receipt
card.
As a result of his conviction he was sentenced to life
imprisonment.
On January 25, 1993 Mir Aimal Kansi, a citizen of Pakistan who had
applied for political asylum, waited outside the headquarters of the
CIA in Virginia and opened fire on vehicles driven by CIA employees
arriving for work. He killed two of those employees and wounded three
others. After a world-wide Manhunt he was arrested, brought to the
United States, tried, convicted and ultimately executed.
Ramsi Yousef, the mastermind of the first attack on the World Trade
Center complex on February 26, 1993 and Sheik Omar Abdel Rahman, the
spiritual leader of the terrorists involved in that attack had more in
common than the attack on the World Trade Center that left 6 people
dead, hundreds injured and approximately a half billion dollars in
damages inflicted on that iconic landmark and surrounding buildings;
they had both applied for political asylum.
While the ``Catch and Release'' program implemented along our
nation?s Southern Border has received much publicity with the
administration finally addressing that huge gap in the Border Patrol
operation, seeking to provide more detention space for illegal aliens
apprehended by the Border Patrol and the more expeditious removal of
aliens arrested by the Border Patrol along the Southern Border.
However, the ``Catch and Release'' program has not only plagued our
nation's efforts to remove illegal aliens apprehended by the Border
Patrol, it also is a factor in the interior enforcement program for
which ICE bears the responsibility. Statistically, at least 85% of
illegal aliens who are released fail to appear when they are required
to do so, either to show up for an immigration hearing or to present
themselves for removal once they have been ordered deported. The Notice
To Appear, the administrative instrument that initiates a removal
proceeding for an illegal alien is often referred to as a ``Notice to
Disappear'' by cynical immigration enforcement personnel. It is
essential that we provide adequate detention facilities to make certain
that aliens, who would likely abscond if they had the opportunity, be
denied that opportunity to abscond.
Because of the inherent risks to the safety and well being of our
nation and our citizens, I would strongly urge that aliens who apply
for political asylum be kept in a detention facility until their true
identities can be determined along with a proper determination being
made of their credible fear should they be returned to their home
country. I believe, however that it is essential to provide comfortable
detention facilities for these aliens who are illegally in the United
States and have applied for political asylum, especially if they are
accompanied by their families. In this perilous era, it is my judgment
that while our officials conduct investigations of the bona fides of
claims of credible fear articulated by applicants for political asylum,
that we have the way to detain such aliens until they are determined to
pose no threat to our country and have, indeed, met the requirements to
be eligible to be granted political asylum. However, should an alien be
proven to not be eligible to be granted political asylum wither because
he committed fraud or because he actually poses a threat to our
national security, retaining such an alien in custody would deny him
the ability to abscond and embed himself in our country.
When we look back into the history of the enforcement of the
immigration laws of our country, Ellis Island was the gateway to our
country for so many of our forebears. Indeed, my own mother first set
foot on American soil when she stepped off the ship that brought her to
this country and she stepped onto Ellis Island, a few short years
before the start of the Holocaust in Europe that resulted in the death
of many members of my own family including my grandmother for whom I
was named. Ellis Island was, in effect, the waiting room for the United
States that provided our immigration inspectors, public health officers
and other officials with ample opportunity to properly screen aliens
seeking to begin their lives anew in this magnificent land of
opportunity. Our nation still needs to properly screen those who wish
to share the American Dream to make certain that we would have an
opportunity to seek for those who might be hiding among them and who,
given the opportunity, would create an American nightmare.
I look forward to your questions.
Ms. Sanchez. Thank you, Mr. Cutler.
And I will thank you all for your testimony, and I am going
to take some time here to ask a few questions.
Mr. Seiter, Ms. Brane had some pretty sad things to say
about your operation of the facility up there in Texas. Did
those conditions really exist that she talked about, before you
fixed them?
Mr. Seiter. She was correct in that we did not offer a 7-
hour school day until recently. It has continually increased.
The issues that she talked about in health--I think she
mentioned two areas of health care. Our responsibility is to
make sure that every detainee, every resident has access to
health care, that is provided by the United States Public
Health Service, and I can't comment on exactly those cases, but
we certainly do nothing to limit care.
Residents may, twice a day--or may place requests to see
medical professionals in boxes that are located around the
center. And those requests are picked up twice a day. And my
understanding is that PHS has the commitment to see people
within 24 hours. I don't know that that always happens; I am
sure it does not, but I know that is their commitment.
Ms. Sanchez. So you just have these boxes, ``I want to go
see a doctor, I am pregnant 7 months, I want to go see a
doctor, or I put in a request to see a doctor for prenatal
care.'' DHS personnel or your personnel pick up these things
from the suggestion box or request box? And who reviews them?
Mr. Seiter. The PHS staff review them, and they triage them
and decide at what level and how soon they will see someone.
Ms. Sanchez. And the doctor facilities or the nurse
facilities, are they at your facility?
Mr. Seiter. Yes, they are. They are right in the middle of
the facility.
Ms. Sanchez. And how many people do you have in your
facility right now, total family, plus kids and everything?
Mr. Seiter. Between 410 and 420.
Ms. Sanchez. --410 and 420. And how many--and so you have
this facility that is staffed by the government for medical
care. And how many people are staffing that? Do you know how
many doctors we have on staff or how many nurses?
Mr. Seiter. I believe that our medical complement is 25.
Ms. Sanchez. Twenty-five throughout the day?
Mr. Seiter. Twenty-five total staff, yes.
Ms. Sanchez. Throughout the day?
Mr. Seiter. Yes.
Ms. Sanchez. Do you have examination rooms? Or is there
more complicated equipment there?
Mr. Seiter. Well, it would probably appear very much like a
common general practice office that you or I might go to. There
is a waiting area. When you go in there, there are examination
rooms, three or four, that a mid-level provider might first see
a patient.
There is a space for physicians, who would then also see
patients. There is a dental area and a full-time dentist. There
is mental health staff. There is an X-ray machine. So it would
look very much like that.
For anything more serious that could not be handled in the
clinic, they would be taken outside to contracted community
hospitals.
Ms. Sanchez. But you really couldn't understand if you had
25 people sitting there in the medical center, and you have the
center on your facility, why somebody would take 3 or 4 months
to get a prenatal care exam? You couldn't imagine that that
could happen?
Mr. Seiter. I would wonder why that would happen.
Ms. Sanchez. Okay. How much time do families get to go
outside to recreate these days? How many hours a day?
Mr. Seiter. The children that are in school have 2 hours
during the Monday through Friday school day, an hour of recess
during the school day, and then an hour in the evening. Those
children also have 4 hours on Saturday and 4 hours on Sunday.
Any adult or non-school-aged child has 3 hours, Monday
through Friday.
Ms. Sanchez. Three hours in total Monday through Friday?
Mr. Seiter. Three hours each day.
Ms. Sanchez. Three hours each day?
Mr. Seiter. Monday through Friday. And then 4 hours each
day on Saturday and 4 hours each day on Sunday. So they have
got a total of over 20 hours a week that they may go outside to
recreation or to the gym.
Ms. Sanchez. Ms. Brane, were you the one that said that
they had 1 hour?
Ms. Brane. Yes. At the time of our visit, they were
receiving 1 hour, 5 days a week, and none on the weekend.
Ms. Sanchez. Refresh my memory. When was your visit?
Ms. Brane. December 24, 2006.
Mr. Seiter. Madam Chair, if I may also say, during the day
when the children are not in school, but the parents and the
non-school-aged children, they are in a day room area. And
provided in that day room area are toys, games, video games,
and table games for recreation.
Ms. Sanchez. Computers?
Mr. Seiter. No. There is a computer lab, but not in the
housing area. And those are available 18 hours a day.
Ms. Sanchez. Computers are available 18 hours a day?
Mr. Seiter. No, the day room area.
Ms. Sanchez. The day room area. Are computers available to,
let's say, heads of household?
Mr. Seiter. There is a computer lab that is daily available
to students that are in school. And I do now know how often it
is available to parents that would like to go to the?
Ms. Sanchez. Is there an Internet connection, do you know?
Mr. Seiter. I do not. I would be happy to find that out and
get back to you.
Ms. Sanchez. Yes, I would like that.
I am going to let my ranking member ask a question as soon
as I finish with just this one.
How are your detention centers different than the jails
that you operate as a private company? I mean, what kind of
different training do you give your staff that handles
detainees versus staff that would handle a county jail or
whatever one of your other clients might be?
Mr. Seiter. Well, it depends. In some ways, it is
different; in some ways, it is not.
We are responsible for the care, for the safety, and for
the security of the detainees or the criminals that we hold.
And depending on the classification of that and how serious the
background of the individual, if they are a criminal, they
would receive different kinds of training for that.
We operate facilities for ICE that are both for criminal
aliens and for non-criminal aliens. And so the criminal aliens
are probably more like the prisons that we operate for the
federal government, the Federal Bureau of Prisons, or the U.S.
Marshals Service, or the 20 states that we service.
For the non-criminal ICE facilities, those are a little bit
different. And for the family facility, that training would
have to be even more different.
I was pleased to be able to spend some time with Michelle
this morning, before the hearing, talking about their
recommendation to develop some special kind of training for
families. And we are going to follow up on that and see if they
can help us identify some particular curriculum that they think
would be appropriate for this unique population.
Ms. Sanchez. But your staff wouldn't bark or threaten or be
punitive towards children if they were talking too loud, would
they?
Mr. Seiter. You know, when I heard that, I tried to imagine
exactly what would happen. And let me kind of put what I
envision is probably the range, from being there myself and
understanding an institutional environment.
There has been no families removed from Hutto for violating
policy. And, as I said, our responsibility has been a safe
environment for children. I wouldn't doubt that, if children
were doing something that someone did not feel was safe, that
they might ask them, the parent to ask them, just as you would
in any other environment.
But we are very sensitive to the concerns of the families.
Our philosophy is not one to bark orders. It is one to be
communicative and proactive in dealing with the people under
our car.
And can I say that someone would bark orders at them to
tell that child to stop that? I can't say they wouldn't, but
the responsibility for the overseeing the behavior of the
children, we emphasize is that of the parent.
Ms. Sanchez. Children can be a little trying. Sometimes I
have barked at them.
The ranking member has graciously allowed Ms. Jackson Lee,
who has a markup vote going on, to ask a question before she
has to leave. So with that, I will yield over for a question to
Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank both the chairwoman and, as
well, the ranking member. Thank you for indulging me.
This is a very important hearing. We happen to be called
for votes, and I would like to thank the witnesses for their
testimony.
Mr. Seiter, I think the chairwoman had my line of
questioning. The propensity of the Corrections Corporation of
America is predominantly prisons, is that right?
Mr. Seiter. That is correct.
Ms. Jackson Lee. Do you have a basis of the percentage?
Mr. Seiter. Of our business, about 6,000 of our 70,000 beds
are contracted with ICE and would therefore be ICE detention
facilities.
Ms. Jackson Lee. Let me just--as my time moves quickly--say
to you that we are not attempting to pull your fingernails out.
And I hope that you appreciate our consternation.
Particularly, the Hutto unit is in the state of Texas, and
this message goes to, I guess, the ICE witness or the
government witness, is that members of Congress want to see the
truth so that we can be, if you will, the solution to the
problem. And quick clean-ups and correct-ups really does not
help.
I offered an amendment to the border security bill under
Chairman Sensenbrenner that had the premise of secure
alternatives to penal institutions for the infirm, the elderly,
families. So I appreciate my good friend, Mr. Cutler, who wants
to ensure that the bad guys and maybe gals do not run amok, if
you will.
But I am incensed, first of all, that children are in a
penal institution. You cannot deny that Hutto, the Hutto
facility, is a prison. And many of these people are under the
civilian premise, asylum seekers and others.
And I would just like to ask--is it Ms. Fiflis?--as to
whether or not an idea such as the secure alternative to a
penal system for the elderly, the infirm and family members
would be a reputable response.
Ms. Fiflis. Yes, Congresswoman Jackson Lee, it would be. In
fact, that is one of the action points, if you will, that the
ABA wants to propose here, these types of humane alternatives
to detention.
Ms. Jackson Lee. Well, I will let you look at the amendment
we had last year and hope, with the kindness of this committee,
we might move in that direction.
And forgive me, Ms. Brane?
Ms. Brane. Brane, yes.
Ms. Jackson Lee. Brane, so it is with an accent. Ms. Brane,
you listed, I guess, a lot of the challenges we faced at this
particular unit. When did you go to that unit?
Ms. Brane. In December, December of 2006.
Ms. Jackson Lee. Okay, so it is within a 6-month period.
And you saw a lot of egregious elements.
Would you believe that an alternative setting, other than
what we call a penal institution, could begin to, one, secure--
that is, of course, you know, our responsibility--but, as well,
respond to some of the issues that you saw, children in a penal
system, the elderly, the infirm, pregnant women who may need
extra care?
Ms. Brane. Yes, absolutely, Congresswoman. In fact, we
recommend alternatives. And there is a wide range of
alternatives that could take into account some of the concerns
that we have about enforcement or the dangerous elements that
may be trying to enter the country.
So these alternative programs could address that by
requiring identification, that identification be established,
that they not be found to be a threat to society or a danger to
our society, et cetera. But, yes, absolutely, alternatives
would be the right approach.
Ms. Jackson Lee. Many of us are destined to visit the area,
but, again, I say to Mr. Seiter, we don't want cosmetic fixes,
which I believe is what ICE was trying to do.
Are these people incarcerated in jails or open rooms with
beds? How are they--I am talking to Ms. Brane.
Ms. Brane. At the Hutto facility, it is a pod system, if
you are familiar with the prison pod system.
Ms. Jackson Lee. Yes.
Ms. Brane. So families sleep in prison cells that still
look very much like prison cells, although they have been
painted and carpeted.
And then there is a general rec area, as described by Mr.
Seiter, that has some televisions. And at the time that we were
there, we didn't see toys in that room, but apparently now
there are toys.
Ms. Jackson Lee. Well, let me conclude. Mr. Seiter, as I
said, this is not an intentionally pointed direction, but I
think we are wrong to have these kinds of facilities. I think
we can do better.
I have seen the one that you have in Houston, so I know the
kind of structure it is. But we are talking about a real
difficult mountain for you to climb. You are in the business of
prisons. This has to have some divide as to what we are doing.
Madam Chairwoman, this whole topic, I think, is vital,
particularly how treat people in the whole question of
families. And I will look forward to working with you.
And I thank the Ranking Member for yielding to me, and I
look forward to working with the panel. I yield back.
Ms. Sanchez. Thank you, Ms. Jackson Lee.
We will now listen to the ranking member for 5 minutes or
as much time as you may consume.
Mr. Souder. I think it is important to distinguish for the
record here that at least 38 percent, from what we have heard,
don't seek asylum, and they are, in fact, criminals.
They have committed the crime of entering the United States
and probably presenting false IDs, by definition, or they
wouldn't be in the facility. That is a political debate as to
how we deal with that, but under current law, that is
indisputable.
This 62 percent, which is apparently a declining
percentage, that declare asylum, only one-fifth of those are
proven to be really asylum seekers. And, quite frankly, my
heart goes out to those who are true asylum seekers who are
legitimate asylum seekers.
And I am amazed, because, when I hear these kind of
questions, I am just shocked that families who aren't true
asylum cases would put their kids in this kind of situation by
breaking laws. These aren't even Mexican illegals who are right
on the border and we have much more--these are people who
traveled great distances to violate American law.
And I think that there ought to be more outrage. And, quite
frankly, while I understand, traditionally, if you have broken
a law, and you go to prison, your children, you don't have
family reunification.
And while that is a good goal, quite frankly, much of what
I am hearing here on health care, on access to a gym, on
whether or not there is a computer lab, people in rural America
and urban America who are citizens, who don't break the law,
don't have, and that there is a balance here, other than the
true asylum seekers, who are in a kind of limbo court position
here, who, in fact, are being abused by people who aren't
seeking asylum or falsely seeking asylum, because they felt it
would be their interest.
And, to some degree, some of those may have a legitimate
case. And there are all sorts of legal questions with that.
But I particularly want to get into a question of the
difficult question of asylum. And I had a couple of questions
for Mr. Cutler. And let me ask the two questions, and I would
be interested in your response.
One of the challenges we have in the visa jumpers that you
referred to is, I know from--this is not classified; it was
told to me by Caribbean country leaders, in fact, the head of
the Caribbean Group--that Muammar Gaddafi had been literally
putting people in, establishing 5-year residency in E.U.
islands in the Caribbean so they could get citizenship and then
move in the United States.
A similar thing is, is that, where there is asylum
questions, which complicates our questions when people make
claims, and we try to do deportation process, and you have
worked with this.
But in asylum seekers, even in the many that come into my
area, for example, many Iraqis in my area used to be CIA
agents--public forum meeting, not something I was told by the
CIA--who were, that means by definition they were in the
Republican Guard.
Iraqis in my area would not meet with each other in my
office, because they believed several of those who sought
asylum in the United States were, in fact, planted Saddam
agents with the goal of killing some of the leaders,
particularly coming out of Detroit. I won't comment on whether
that was verified or not, but let's just say it was a real
dispute, and they wouldn't even meet in my congressional office
for fear of killing each other.
By nature, many even true asylum seekers are either--some
are just poor people like from Darfur who are just being
persecuted, but they come from violent areas. And even the
question of asylum, how do we sort this through? And if we
don't have these kind of detention facilities, if 90 percent
have historically absconded, what type of risk are we having if
we don't have the detention facilities?
It isn't like an occasional absconding. And if we have kind
of looser alternative ways, who is going to, in effect, be the
bail bondsman? Who is going to take the liability for these
type of cases?
Mr. Cutler. Well, it is an excellent point that you are
making. Look, the bottom line is that terrorists want to be
able to embed themselves in our country.
When the head of the FBI, Robert Mueller, spoke before the
Senate Intelligence Committee, he spoke about his concern about
sleeper agents. And, you know, we often hear about how, if we
just let people come in that want to work, then the sun will
shine and everything will be okay in the kingdom.
The bottom line is, that a day before an attack, a
terrorist is likely to go to the job that he or she has held
for the last year or 2, creating a fictitious identity, hiding
in plain sight. And that is the reason that I make a strong
point in my own testimony that, before we allow people out
among us, we need to be very careful that we are not putting
people out there who are intent on doing harm to us.
Back in the mid-1980s, I was in a situation where we
arrested a guy who was apparently a dishwasher. He was a
citizen of Egypt. And we finally caught him, and we really had
to make an effort. He was running across the roofs of cars in a
parking lot.
We finally brought this guy in for landing, brought him
back to his apartment. We found shopping bags filled to the
brim with coupons. We have received the information, the
intelligence that we should have received as agents, and we had
no place to go with that intelligence.
And this is something that you might want to consider
addressing in some appropriate way. But when we got back to
that apartment for those coupons, we had no idea what we
witnessed. We ultimately removed this guy.
And months later, to my chagrin and, quite frankly, I was
really worked up, there was a story on TV about how Yassir
Arafat had sent terrorists to our country to commit coupon
fraud in order to generate millions of dollars in funds that
was being used to buy explosives, weapons and so forth to carry
out terrorist attacks around the world.
We have got a very serious problem, because fraud right now
is a huge issue. And to go just a little bit beyond that--and I
know we are limited on time, but I think this is very, very
important.
Our people at USCIS are constantly chasing their own tails,
trying to keep pace with the backlog. So the easiest way to
keep the backlog in control is to just process applications
quickly and approve things. So we wind up giving citizenship
and residency to people who may well be terrorists.
We just had a guy who was working as a private contractor,
as a translator, on a military base in Iraq. He was a
naturalized United States citizen. And now USCIS has to admit
that they don't even know what his real name was.
So this constant battle of the overflow of applications
encourages more people to file more fraudulent applications,
which further puts things back further, which causes the system
to have to run faster. I use the analogy, it is kind of like
Lucy at the bon-bon factory on steroids, but these aren't
candies. These are applications for citizenship and other
immigration benefits.
And, in fact, one of the terrorists that I cited, the guy
that was involved with the bombing of the subway, had canceled,
had withdrawn his application for political asylum because he
got involved in a marriage. So this whole thing is a matter of
needing to be able to hold onto people, but we need the
resources.
You have got about 3,000 ICE agents right now dedicated to
enforcing the immigration laws for the entire country. I am a
New Yorker, and New York has been found to be the safest big
city in the United States by the FBI Uniform Crime Report, if
you look at their stats.
But New York, with its eight million residents, that covers
about 400 square miles of area, has 37,000 or 38,000 police
officers. Here we have a multiple of the number of residents in
the city of New York living illegally in our country, they are
scattered across a third of the North American continent, and
we have about 3,000 agents to try to do all those various, very
critical interior enforcement missions, including employer
sanctions, going after the fraud, participating in task forces,
as I did for a number of years.
So they are juggling as fast as they can, and the job isn't
getting done. So the fraud slips by, and political asylum is
just one of the ways that these folks seek to embed themselves.
You talked about the documents. You know they are not even
giving document training to the new agents going through ICE to
help them to identify fraudulent identity documents? They are
not getting the language training that they need.
We are being told that we are waging a wage on terror, and
when we fly, we have got to take our shoes off so that we don't
conceal bombs in our shoes, as Richard Reid did, but yet
Richard Reid, the shoe-bomber, was a British national who had
access to that airplane and would have had access to our
country under the aegis of the visa waiver program.
So if you look at this, the immigration system is
dysfunctional. It is not one issue: This is a boat with a whole
bunch of holes in it, and we are trying to plug a couple of
holes.
Well, you don't know need to be a rocket scientist to
understand that, if we don't plug all the holes in the boat,
the boat is going to wind up on the bottom of the lake. This
issue of detention is critical, but it is only, unfortunately,
one of many holes that the immigration system is now suffering
from.
I know I have gone a little bit, you know, off from point,
but what I am trying to get across is the idea that we are so
vulnerable, because there are so many areas of exploitation.
The terrorists who attacked our nation on 9/11--and I have to
tell you, the ashes from 9/11 landed on my home, and I worked
as a volunteer with 9/11 families for Secure America. They used
364 different aliases, 19 people.
So if we can't get a handle on all of this, we have got
serious problems ahead, I fear.
Ms. Sanchez. I thank the ranking member.
You know, you mentioned that we are talking about--when I
look at this, I look at just the fact that America holds its
standard high, with respect to human rights around the world.
And so, in asking about what type of situation exists, in
particular for families and for children, I think it is
important to note that we in the United States have a doctrine,
if you will, that--and it stems from way back when we began
this country with indentured servitude, that the children of
parents who commit a crime have committed no crime. And it is
not their fault.
And, you know, we looked at this doctrine in particular
when California passed Proposition 187, which tried to limit
children going to school, and saying that, you know, we never
go after the children of people who may be entering this
country without the right documents, because it is not the
children's fault.
So I think it is incredibly important that children have a
safe environment in which to grow up in, whether they are in
this country or not. It is not through their own fault.
And that is a reason why I am particularly very interested
in their medical needs, in the education they receive, in the
play time that they have, because it is a doctrine of this
nation that children are so important. And it has been upheld
ever since the beginning of the formation of this country.
I would like to just ask one last question, because we have
to end the session with--going to be another committee meeting,
as you know, and we are going to have votes in just a few
minutes, they tell me.
This goes to the fact that Ms. Fiflis--am I pronouncing it
right? I am sorry.
Ms. Fiflis. Fiflis.
Ms. Sanchez. Fiflis. Okay, Fiflis.
Ms. Fiflis, Mr. Torres was here in an earlier panel. I
don't know if you got to hear his testimony, but he mentioned
that everybody gets legal representation, that phones are
available if they can't afford the phone. I asked them that
direct question, can you afford--what happens if, you know, it
is too expensive to make that phone call?
I mean, his answer was everybody--you know, you get free
calls, you have access. I mean, he seemed to think there was no
problem with respect to lawyers and having representation, if
you were hanging out in the middle of Texas. And I haven't been
down there, but I am assuming there is not too much around it.
Just for the record, would you explain to us once again
something called very basic legal access, that is also one of
the basic human rights that we uphold in this country, what you
have seen? And I don't know if Ms. Brane wants to join in on
this, but I want to get for the record this whole issue of
legal access.
And the reason I asked about computers and Internet was not
because I want them sitting there playing ``Brick-Basher'' or
whatever these games are, but because sometimes Internet is an
easy way to discuss with the outside world, especially legal
terms, what is going on.
Can you sort of--just for the record--again let us know,
how difficult is it for families to get legal representation if
they have been moved from the original area where they have had
their lawyer or if they are now in this detention center and
they are seeking to find a lawyer to help?
Ms. Fiflis. Thank you, Madam Chair.
Well, there are two categories of sources which would yield
the factual responses to your questions. One category are the
reports that are issued by the detention initiatives
implementation committee reports, which are confidential. Our
agreements, the ABA's agreement with ICE is to keep those
reports confidential. We cannot provide you information that
resides in those reports.
The second category, the other category of information that
is responsive to your question involves, as I testified, the
letters and other communications from detainees themselves, as
well as their legal counsel.
I suppose a third category is my own experience in
representing detained individuals, but I am here on behalf of
the ABA.
I can tell you that access to legal counsel, legal
information is very difficult. Access to other services in the
detention facilities are also very difficult.
My experience in representing the 120-plus detainees that I
currently represent, out of the Swift raids in Greeley, is, in
fact, you know, my individual experience as an immigration
practitioner. But I got a very hard and fast lesson in the
denial of legal access or access to legal representation and
legal information.
And if I may, I just would like to address Ranking Member
Souder's concerns about frivolous asylum applications along
those lines. Provision of access to legal representation and
legal information would, I believe, dramatically diminish the
filing of frivolous asylum claims.
When people have a correct understanding of the law and are
represented adequately by competent attorneys, they won't file.
They will be advised against frivolous asylum applications,
because there are severe penalties for doing that.
But in terms--I also would like to address.
Mr. Souder. May I ask a follow-up question to that?
Ms. Fiflis. Certainly, thank you.
Mr. Souder. How would you do that? You mean at the border,
at a raid, that rather than having the litigation process,
could you provide something to them, saying that there are
additional penalties for frivolous, and here are the basic
criteria of eligibility?
Ms. Fiflis. Yes, absolutely. Either private attorneys who
have access to detainees, after they have been processed, will
advise them of that, or the legal orientation programs, which
are, I think, exist in only six or eight facilities out of the
hundreds that exist in this country. And the legal orientation
programs, that advice is rendered.
Mr. Souder. Thanks.
Ms. Fiflis. If I may address your question about telephone
access, telephone access is a huge problem. In some facilities,
attorneys are permitted to make telephone calls to their
clients; in some facilities, they are not permitted to make
telephone calls to their clients.
In the El Paso Service Processing Center, with which I have
had experience, that is such a facility. It is a huge facility.
I don't know the capacity there, but I believe it is about
1,300, versus the GEO Aurora facility, which is 400-plus.
GEO Aurora allows attorneys to call in. El Paso doesn't.
When you can't telephone your clients, it is impossible to
prepare them for their hearings before the judges. It is
impossible to advise them of, for example, they shouldn't be
filing frivolous asylum claims.
In those facilities where attorneys can't call in,
detainees are permitted to call out, but sometimes the charges
are a dollar per minute. Most recently in Denver, there was a
full week--this is, granted, an unusual circumstance--but a
full week where the phones were broken.
There is one phone in that facility that attorneys can call
into. When I want to call my clients, I call them after 9
o'clock at night, because I know the other attorneys won't be
working. The telephone access is a huge problem.
Ms. Brane. I think she pretty much covered what I would
have said. The only thing that I would add is that, very often,
the telephones--I mean, she talked about a week with the phones
broken completely. But the service where you are supposed to be
able to call out free of charge to certain nonprofits who
provide legal representation very often do not work.
And, also, we have had several detainees report to us that
guards often will take the phone out of their hand and hang it
up when they are talking to their attorney.
Ms. Sanchez. I thank the witnesses for all of your
testimony and the members for their questions. And as you know,
there is an incredible amount of work being done in the
Congress.
And I know that there are many competing hearings going on
with us today, so many of the members of the subcommittee may
have additional questions for you. And we will ask you to
respond quickly in writing to those questions.
And hearing no further business, the subcommittee stands
adjourned. Thank you so much.
[Whereupon, at 12:51 p.m., the subcommittee was adjourned.]
CROSSING THE BORDER: IMMIGRANTS IN DETENTION AND VICTIMS OF TRAFFICKING
PART II
Tuesday, March 20, 2007
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Border, Maritime,
and Global Counterterrorism
Washington, DC.
The subcommittee met, pursuant to call, at 3:11 p.m., in
Room 311, Cannon House Office Building, Hon. Loretta Sanchez
[chairwoman of the subcommittee] presiding.
Present: Representatives Sanchez, Cuellar, Souder, and
Bilirakis.
Ms. Sanchez. [Presiding.] Good afternoon. The subcommittee
will come to order.
The subcommittee is meeting today to receive testimony on
``Crossing the Border: Immigrants in Detention and Victims of
Trafficking, Part II.'' Today's hearing is the second in a two-
part series that is examining the issues surrounding the
treatment of migrants by Immigrations and Customs Enforcement.
Today's hearing will have two panels, which will primarily
focus on the issue of human trafficking. I would like to begin
by thanking our witnesses: Mr. Gabriel Garcia; Lieutenant Derek
Marsh, all the way from Westminster, in Orange County,
California; Ms. Ann Jordan; and Mr. Victor Cerda.
Thank you for joining us today to discuss these important
issues.
In our last hearing, we discussed the challenges that the
government faces in enforcing our immigration laws and ensuring
that all people held in the government's custody are held and
treated humanely, and finding effective alternatives to
detention.
Today, we have the opportunity to focus on the challenges
the government faces in disrupting and dismantling human
trafficking operations and ensuring that victims of trafficking
are supported and treated accordingly.
It is estimated that there are 600,000 to 800,000
trafficked across borders annually, and between 2 million and 4
million more are trafficked within their own countries. All
these people, women and children, they are the primary victims
of trafficking. So given the scope of this problem, we must
continue to look at improving our ability to stop human
trafficking.
In today's hearing, I hope to discuss the ways the federal
government and nongovernmental organizations are collaborating
to stop human trafficking and provide support for the victims
of trafficking.
I am also interested to learn what may need to be done to
allow enhanced collaboration between the different entities
that are working to stop trafficking. I know that in my
district in Orange County, California, human trafficking has
unfortunately been a great concern in our communities and for
our local law enforcement.
The Orange County Human Trafficking Task Force was
established in response to our community's needs. It brings
together local law enforcement, federal agencies, and community
service organizations to respond to the needs of trafficking
victims. It also provides a forum to find ways to use the
knowledge and experience of victims to aid law enforcement in a
way that is sensitive to the trauma that is suffered by the
victims of trafficking.
I am very proud of the work that the Orange County Human
Trafficking Task Force is doing, and I am also proud of the
federal assistance that we have been able to provide to the
said task force. These are the kinds of initiatives that we
should be supporting, initiatives that mobilize local
intelligence and resources, and that come from and are
supported by our communities. This is the way that the federal
government will have the best chance to stop human trafficking
in the United States.
I also would like to thank my ranking member, the gentleman
from Indiana, because I know he has a very big interest and has
for a long time in this whole issue of trafficking and
political asylum and really how we treat people who rightfully
have a place to be here in the United States. I look forward to
working with him on this issue.
I will now recognize the ranking member of the
subcommittee, the gentleman from Indiana, for an opening
statement.
Mr. Souder. Thank you, Madam Chair.
I would like to thank our witnesses for being here today.
On our first panel, I look forward to hearing from Mr. Gabe
Garcia from Immigration and Enforcement, ICE, on the
investigations of human trafficking and the similarities in the
criminal networks and techniques with criminal organizations
involved in smuggling people and contraband.
On the second panel, I would like to welcome Ann Jordan
from Global Rights and Lieutenant Marsh from Orange County. I
am very interested in your views on how human trafficking
organizations operate and what tools are at our disposal to
dismantle these criminal organizations.
Lastly, I would like to welcome Victor Cerda, who is the
former director of the Office of Detention and Removal and now
is a practicing immigration lawyer.
I think that you will have a lot to offer this subcommittee
as a follow-up to Part I of this hearing on the role detention
plays in securing the border, particularly as it relates to
asylum seekers and victims of trafficking. I am also interested
in your perspective on the judicial review process for these
cases and what changes might be necessary in that area to
facilitate the review process.
During the hearing last week, John Torres, director of
ICE's Office of Detention and Removal Operations, along with
several private-sector witnesses, testified before the
subcommittee on the issue of detention standards for illegal
aliens, with particular focus on the detention of children and
asylum seekers. Concerns were raised about the amount of
education, federal staffing, and medical care provided to
illegal aliens.
I am particularly interested in following up during this
hearing on options to address the 90 percent absconder rate for
aliens not held in detention and the security risks associated
with releasing individuals that have not been fully vetted and
either granted admittance or ordered deported.
We heard several examples where illegal aliens have
exploited political asylum to avoid detention and remain in the
U.S. For example, murderer Aimal Kasi and the 1993 World Trade
Center bomb plotters Ramzi Yousef and Sheik Omar Abdel Rahman,
who were granted political asylum.
During this hearing, I hope through testimony and questions
to explore how human trafficking and narcotics smuggling cases
are investigated, particularly how DHS is able to investigate
and dismantle criminal organizations, and whether there is or
could be links between these organizations and terrorist
groups.
Human trafficking is now considered a leading source for
profits for organized crime, together with drugs and weapons,
generating billions of dollars.
In addition to the horrible human rights abuses suffered by
victims of human trafficking, these pipelines can be used by
smuggling and trafficking organizations for the clandestine
entry of undocumented aliens and may be exploited by terrorists
to gain entry into the United States and attack our critical
infrastructure.
Several years ago, in 2004, there were public reports by
people in the State Department providing evidence that
terrorist groups are using human trafficking to acquire
recruits, and that some terrorists are abducting children and
making them child soldier slaves.
At the same time, Secretary Powell was quoted as saying
that human trafficking could very well help to finance
terrorist activity. Additionally, Italy's Secret Service has
reported that Al Qaida is in the business of smuggling illegal
immigrants into Europe to fund terrorist activities.
While many of these concerns cannot be discussed in a
public hearing, I am very concerned that not enough work is
being done analyzing these links. This is an area I hope the
subcommittee investigates a significant amount of time in this
Congress.
Thank you, Madam Chair, for yielding the time, and I look
forward to continuing to closely work with you on this subject.
Ms. Sanchez. Great. I know that you are very interested in
this subject.
And I am grateful for the other members who are attending.
I will remind them that, under the committee rules, opening
statements may be submitted for the record.
I welcome our sole witness on our first panel, Mr. Gabriel
Garcia, ICE headquarters program manager of the Human Smuggling
and Trafficking Unit. In that position, he is responsible for
focusing on the criminal organizations that exploit global
pipelines to bring undocumented aliens into the United States
for profit. His responsibilities include providing guidance and
operational support to our field agents.
Agent Garcia's experiences include serving tours of duty
with the United States Marine Corps and the United States Army.
He was deployed in Desert Storm to Iraq as a military
policeman, where he supervised a prisoner-of-war forward
collection point. Also as a Border Patrol agent and a special
agent in San Diego California, he was deeply involved in major
human smuggling cases that involved wiretap operations.
Without objection, the witness's full statement will be put
into the record. I ask you, Mr. Garcia, to summarize your
statement in 5 minutes or less.
STATEMENT OF GABRIEL GARCIA, PROGRAM MANAGER, HUMAN SMUGGLING
AND TRAFFICKING UNIT, OFFICE OF INVESTIGATIONS, ICE
Mr. Garcia. Good afternoon, Chairwoman Sanchez and
distinguished members of the subcommittee. It is a distinct
honor to appear before you today to have the opportunity to
share with you ICE's role and our efforts in the fight against
human trafficking. It is a crime that is global in scope, a
crime that hinges on the victimization of vulnerable men, women
and children, a crime that is a modern-day form of slavery.
ICE is the investigative arm of the Department of Homeland
Security, with broad statutory authorities, expertise and
jurisdiction that reaches beyond the U.S. borders to countries
overseas. Our 56 attache offices work hand-in-hand with foreign
governments to identify and pursue the full scope of the
criminal enterprise.
I emphasize this because success against human traffickers
worldwide lies in partnerships?partnerships with foreign
governments, partnerships with nongovernmental organizations or
NGOs, partnerships here in the United States with local, state
and federal law enforcement agencies, Health and Human
Services, the Department of State, the Department of Justice
Civil Rights Division and their newly established Human
Trafficking Prosecutions Unit, as well as the community at
large.
The human trafficking cases that I provide to you in my
written statement really emphasize the reasons why we should
foster and maintain productive and proactive relationships with
those entities.
Equally as important, though, is the employment of the
victim-centered approach. That means that we recognize that
victims have rights and that they require services and
immigration relief to stabilize and rebuild their lives. I
would like to note that the DHS secretary has delegated to ICE
the authority to provide continued presence, or CP, which is a
short-term immigration relief that is provided to victims of
trafficking, which allows them to stay and remain in the United
States for up to 1 year.
Victims' can petition for long-term immigration relief as
well. This is in the form of a ``T'' visa. ``T'' visa
applications are filed with another DHS agency, the U.S.
Citizenship and Immigration Service, or USCIS. A ``T''
nonimmigrant may remain in the United States for up to 3 years,
and then apply for adjustment of status to that of a lawful
permanent resident.
At ICE, the victim-centered approach simply means that we
place equal value to the rescue and stabilization of victims,
as to the prosecution of traffickers. To that end, ICE has over
300 victim coordinators nationwide. These are agents with
specific training. They are the bridge to the NGO community.
We are also engaging in an aggressive outreach campaign to
educate local, state and federal law enforcement and NGOs on
how to identify human trafficking, the services and immigration
relief available to trafficking victims, the roles of NGOs, and
the distinction between human smuggling and trafficking in
persons.
We also provide a toll-free number or tip line for human
trafficking leads. We have developed laminated wallet-sized
cards and brochures for law enforcement officers, as well as a
DVD to be played at police roll calls. We also continue to
focus on the statutory responsibility to train our own agents
by mandating completion of a work-based human trafficking
course developed as part of ICE's Virtual University.
Equally important is the training of law enforcement
officers and NGOs domestically and abroad. We have hosted and
participated in numerous training sessions on human trafficking
and victim issues for combined audiences of law enforcement
prosecutors, and NGOs.
We have developed human trafficking training modules, which
are part of the permanent curricula at the International Law
Enforcement Academies in Bangkok, Budapest, and San Salvador.
These training modules focus on investigative methodologies, as
well as victim identification, interviews and services.
I recently returned from a Human Trafficking Experts
Working Seminar hosted in Vienna by the United Nations. The
working group consisted of 15 experts from the law enforcement
and NGO communities throughout the world. Another ICE agent and
I were the sole U.S. representatives at this law enforcement
forum. The purpose of this working group is to develop human
trafficking law enforcement training modules to be used as
templates throughout the world. ICE was honored to share our
expertise and methodologies at this global event.
I would also like to highlight the importance of
information exchange. ICE holds the directorship of the Human
Smuggling and Trafficking Center, in which the Departments of
Homeland Security, State and Justice, as well as the
intelligence community, are principal stakeholders. The center
serves as a fusion mechanism for intelligence, law enforcement
and other information to bring more effective international
action against human traffickers, smugglers, and criminals that
facilitate clandestine terrorist travel.
Lastly, ICE's approach toward human trafficking has
resulted in the initiation of nearly 300 investigations, 184
arrests, and over $1 million in seizures in fiscal year 2006.
More importantly, during the same timeframe, we provided
continued presence to 142 trafficking victims, which is
approximately 74 percent of the total number issued within the
U.S. government.
In conclusion, ICE has the unique organizational ability to
investigate human trafficking with a global reach, and provide
short-term immigration relief to trafficking victims. We will
continue to expand our outreach and training efforts to share
our expertise in employing the victim-centered approach as we
continue to build global coalitions.
I hope my remarks today have been helpful and informative.
I thank you for inviting me, and I will be glad to answer any
questions you may have of me at this time.
[The statement of Mr. Garcia follows:]
Prepared Statement of Gabriel Garcia
March 20, 2007
Chairwoman Sanchez and Members of the Subcommittee, it is an honor
for me to appear before you today to share U.S. Immigration and Customs
Enforcement's (ICE's) efforts against human traffickers who exploit
men, women and children--a form of modern-day slavery.
Among the Department of Homeland Security (DHS) law enforcement
agencies, ICE has the most expansive investigative authority and the
largest force of investigators. Our mission is to target the people,
money and materials that support terrorist and other criminal
activities. The men and women of ICE accomplish this by investigating
and enforcing the Nation's immigration and customs laws. ICE aims to
systematically disrupt and dismantle the international and domestic
operations of human traffickers, identify and seize assets and illicit
proceeds, and identify systemic vulnerabilities that may be exploited
by criminal elements to undermine immigration and border controls.
I would initially like to provide an important clarification and
necessary distinction between the terms ``human smuggling'' and ``human
trafficking.'' These are not interchangeable terms. ICE views human
smuggling as the importation of people into the United States involving
deliberate evasion of immigration laws. Human trafficking on the other
hand is sex trafficking in which a commercial sex act is induced
through the use of force, fraud, or coercion; or the recruitment,
harboring, transportation, provision, or obtaining of a person for
labor or services, through the use of force, fraud, or coercion for the
purpose of subjection to involuntary servitude, peonage, debt bondage,
or slavery; or sex trafficking, in which a commercial sex act is
induced by force, fraud or coercion. However, there need not be any
force, fraud or coercion in cases of commercial sex acts where the
victim is under 18. Simply stated human smuggling is transportation-
based and human trafficking is exploitation-based.
The Department of State estimates that 600,000 to 800,000 people
are trafficked across international borders each year. Men, women and
children are trafficked into the international sex trade and into
forced labor situations throughout the world. Many of these victims are
lured from their homes with promises of employment; instead, they are
forced or coerced into prostitution, domestic servitude, farm or
factory labor or other types of labor.
Given the international scope of human trafficking, we at ICE
maintain a global perspective and foster strong international
relationships through our 56 Attache offices located throughout the
world. Our ICE Attaches work with host country law enforcement to
better coordinate investigations and to fully identify and pursue the
full scope of the criminal enterprise.
This is accomplished by targeting recruiters, brokers, document
providers, travel agencies, corrupt officials, smugglers and businesses
engaged in criminal activities at source and transit countries. ICE
also works with its foreign law enforcement partners to target the many
bank accounts, wire transfers and funding mechanisms that fuel the
criminal enterprise.
To exemplify worldwide collaboration, I'd like to talk about two of
our recent cases. A human trafficking investigation was initiated based
on information received from the ICE Attache, Moscow, Russia, involving
the possible trafficking of a Russian national. The ICE Attache
reported that the Ministry of Foreign Affairs in Yekaterinburg, Russia,
received information from a concerned mother that her daughter was
being held against her will at a Florida residence. This lead was
forwarded to the respective domestic field office. ICE agents located
the victim and determined that she was held against her will, beaten,
and forced into prostitution by the defendant in this case. The victim
was placed under the care of a service provider. The ICE Attache in
Moscow worked with a Russian anti-trafficking NGO who contacted the
victim and counseled her until the victim felt comfortable and agreed
to cooperate. The trafficker was arrested, indicted and ultimately pled
guilty to trafficking charges.
The second human trafficking case was started similarly by the
mother of a trafficking victim reporting to the U.S. Embassy in Mexico
City that her daughter had been kidnapped and was being held against
her will at a New York residence. This information was forwarded to our
agents in New York who subsequently located and rescued the daughter as
well as several other women. Our investigation disclosed that the women
had been romantically lured by male members of the Carreto family, who
forced them into prostitution through physical abuse and threats to
their children, who were cared for by the traffickers' mother in
Mexico. The two lead defendants in this case were each sentenced to 50
years imprisonment for sex trafficking, which is the longest sentence
imposed on a human trafficker since the enactment of the Trafficking
Victims Protection Act. Two women were also indicted on human
trafficking charges in this case and were fugitives in Mexico.
Recently, one of these women was extradited to the United States to
stand trial.
We at ICE recognize that cooperation and collaboration can and
should extend beyond the law enforcement community. Non-Governmental
Organizations (NGOs) play a vital role in the fight against human
trafficking. For law enforcement agencies to have any level of success,
we must establish and maintain productive and proactive relationships
with NGOs. We at ICE employ a victim-centered approach utilizing over
300 victim/witness coordinators nationwide--these are agents with
specific training that are the bridge to the NGO community.
We not only seek to prosecute traffickers, but to rescue and
stabilize trafficking victims. We also recognize that victims have
rights and require services and temporary immigration relief to
stabilize them. In each of the cases cited above, we rescued
trafficking victims and granted them ``Continued Presence,'' which is
also part of our ``victim-centered approach.'' The DHS Secretary has
delegated to ICE the authority to provide ``continued presence,'' which
is a short-term immigration protection which allows certified victims
of trafficking to remain in the United States for up to one year to
enable them to apply for ``T'' nonimmigrant status. Applications for
``T'' nonimmigrant status are filed with another DHS agency, the United
States Citizenship and Immigration Services (USCIS), which reviews and
adjudicates these applications. Typically, those who have been granted
``continued presence,'' if otherwise eligible, are granted ``T''
nonimmigrant status. A ``T'' nonimmigrant may remain and accept
employment in the U.S. for up to 3 years and then apply for adjustment
of status to that of a lawful permanent resident.
The immediate provision of stabilizing services is only possible
through strong partnerships with other Federal partners and the NGO
community. Once adult victims are issued CP or ``T'' nonimmigrant
status, they may be able to access a wide range of federal benefits and
services through certification from the Department of Health and Human
Services.
No case better highlights the great relationship between ICE and
NGOs than Operation Traveler, an investigation that was launched based
on information provided by an NGO.
In mid 2004, ICE agents executed the final phase of Operation
Traveler, serving search warrants at three seemingly middle-class
bungalows in suburban New York. What they found was one of the most
horrific cases of human trafficking and slavery in recent U.S. history.
Inside those homes were 69 Peruvians--including 13 children--being held
in over-crowded and unsanitary conditions. They were brought to the
United States by a couple who identified their victims in Peru, gave
them false documents, coached them on how to lie to U.S. Embassy
officials, and helped them enter the United States on fraudulently
obtained tourist visas. They charged the victims smuggling fees ranging
from $600 to $13,000 per person. In addition to the smuggling fees, the
victims were required to pay the couple ``rent'' for living in those
squalid conditions. The victims were forced to turn over their
passports, given jobs and held in virtual bondage.
Fortunately, the victims in this case were rescued. They are now
under federal protection, and the lead defendant was sentenced to 15
years in a federal prison. An additional success story in this case, is
that after the enforcement action, the positive relationship between
NGOs and ICE led to the identification of 25 additional trafficking
victims. The fact that the initial lead was provided by the NGO, and
after the enforcement action, 25 additional victims were identified
underscores the need to have a productive and proactive relationship
between law enforcement and NGOs.
As evidenced by the cases I cited, success in the fight against
trafficking lies with partnerships. As important as partnerships,
though, are outreach and training. We at ICE are engaged in an
aggressive outreach campaign to educate local, state and federal law
enforcement and NGOs on how to identify human trafficking, the services
and immigration relief available to trafficking victims, the roles of
NGOs and the distinction between human smuggling and trafficking. We
also provide a toll free number or tip line for human trafficking
leads. We've developed laminated wallet-size cards and brochures for
law enforcement officers and a DVD to be played at police roll calls.
We continue to focus on the statutory responsibility to train our
own agents by mandating completion of a web-based human trafficking
course developed as part of ICE's Virtual University. Equally important
is the training of law enforcement officers and NGOs domestically and
abroad. We have hosted and participated in numerous training sessions
on human trafficking and victim issues for combined audiences of law
enforcement, prosecutors and NGOs. We developed human trafficking
training modules, which are part of the permanent curricula at the
International Law Enforcement Academies (ILEA) in Bangkok, Budapest,
and San Salvador. These training modules focus on investigative
methodologies as well as victim identification, interviews and
services.
I recently returned from a Human Trafficking Experts Working
Seminar hosted in Vienna by the United Nations Office of Drugs and
Crime. The working group consisted of 15 experts from the law
enforcement and NGO communities throughout the world. Another ICE agent
and I were the sole U.S. representatives. The purpose of this working
group is to develop human trafficking law enforcement training modules
to be used as templates throughout the world. ICE was honored to share
our expertise and methodologies at this global event.
Lastly, I would like to highlight the importance of information
exchange. ICE holds the directorship of the Human Smuggling and
Trafficking Center (HSTC). The Departments of Homeland Security, State
and Justice, as well as the intelligence community are integral
stakeholders. The HSTC serves as a fusion center for intelligence, law
enforcement and other information to bring more effective international
action against human traffickers and smugglers, and criminals
facilitating terrorists' clandestine travel. ICE and the HSTC work
closely together on human trafficking and smuggling issues.
In conclusion, ICE has the unique organizational ability to
investigate trafficking in persons with a global reach and provide
short-term immigration relief to trafficking victims. We will continue
to expand our outreach and training efforts to share our expertise in
employing the victim-centered approach as we continue to build global
coalitions.
I hope my remarks today have been helpful and informative. I thank
you for inviting me and I will be glad to answer any questions you may
have at this time.
Ms. Sanchez. Thank you, Mr. Garcia.
I am now going to take my time and ask you a few questions
with respect to your testimony.
Going back to the CP status, in testimony submitted by the
second panel that is going to come after you, one of the things
that they said was that there has been a big delay in ICE's
processing of CP applications in the past year.
Do you know how long it is currently taking to process a CP
application for a victim of trafficking? Do you understand or
know why that delay is happening? Is it a lack of resources?
And what do we need to do to reduce that backlog and decrease
the processing time? And what do you think is an acceptable
amount of time to process that?
So what do you think the time is now? Do you know if there
is a delay? Do you know why the delay has occurred? How can we
solve that? And how long do you think it should take to
process?
Mr. Garcia. The CP application process lasts approximately
1 month. There has been some turnover within that section of
resources. Therefore, the timeline for a CP application process
should decrease. The ideal time for us to be able to process a
CP process should be approximately 2 weeks.
Ms. Sanchez. So do you think it was just because of the
switchover of people or do you think we actually need to put
some more resources so that we can get down to that 2 weeks?
Mr. Garcia. It is the turnover of personnel.
Ms. Sanchez. So it is just the turnover, but you are
getting the new personnel in and you are training them and all?
Mr. Garcia. Correct.
Ms. Sanchez. Okay. Can you explain the ICE process for
handling victims of trafficking identified during enforcement
actions? Can you tell us how you would handle adult victims?
How you would handle accompanied minors? And how do you handle
unaccompanied minors?
Mr. Garcia. Absolutely. I think I would like to preface
this by stating that it is seldom encountered when a
trafficking victim identifies themselves as a trafficking
victim. Traffickers are experts in manipulation of human
beings.
We have this perception that there is a need for physical
restraints or physical abuse for these traffickers to have
control over trafficking victims. But what happens is that they
employ what we call mental means of coercion, which a subtle
threat to a family member or threat to that victim, or threat
that the family would assume the debt of that trafficking
victim, may actually force them to stay within that situation.
Therefore, this is the mental state that we encounter in
trafficking victims. They have been traumatized. We recognize
that. So upon encountering a potential trafficking victim at an
enforcement action, our goal is to be able to determine whether
or not that person is a trafficking victim.
So therefore we go through an interview process. The
interview process is extensive. We work hand-in-hand with
nongovernmental organizations. Like I said, our goal is to
determine whether or not that person is a trafficking victim.
Ms. Sanchez. Do you do it yourself, or do you have outside
organizations help you to do that? What about language and all
of that?
Mr. Garcia. We provide the linguists. When we plan a
medium-scale to large-scale operation, we prepare with the
linguistic skills. We reach out in advance to nongovernmental
organizations to at least give them advance notice so that they
could be prepared to handle the volume of potential victims
that we are going to encounter. It depends on the scale of the
operation. We have engaged in some large-scale enforcement
operations in which we have encountered up to 100 potential
trafficking victims.
Therefore, what we do is we arrange lodging, which we pay
through our funding, and we take a period of time, and normally
it takes about a week's time in the large-scale operations, to
be able to determine whether or not they are trafficking
victims. And we are there with NGOs. NGOs are doing their
interviews and we are doing the law enforcement interviews.
We also provide culturally sound food, with appropriate
clothing throughout the enforcement operation, and it is a
secure environment and a covert environment. Therefore, it
wouldn't be public where the processing interviews are taking
place.
Ms. Sanchez. If you are going to do a raid, let's say,
where you think that there are 50 people enslaved, and yet you
have the traffickers there. How do you ensure that you are
going to get the traffickers and you are going to do the law
enforcement piece to them? And at the same time, handle the
trauma that these trafficked people are going through?
Mr. Garcia. It is a challenge. This is why corroboration of
information is essential for us to be able to identify the
traffickers themselves. But what is encountered at times is
that you may have enforcers that may be women that may be among
the potential victims that we encounter. This is where
isolating the victims and doing the extensive interviews from
the law enforcement perspective and the NGOs, we are able to
identify who these enforcers are and take them out of the
equation, because they do have an influence on the victims of
trafficking.
Ms. Sanchez. And lastly, what trends are you seeing with
respect to human trafficking, especially into the United
States? Predominantly what parts of the world are they coming
from? Are there certain schemes that are being used? What are
you seeing lately as far as trafficking? I know it is up, even
though we have spent a lot of effort worldwide to try to bring
it down and make other countries aware of how important this is
to stop.
Mr. Garcia. It is a global issue and it is a hidden crime.
We encounter every typology of recruiting mechanisms that are
out there, from classified ads, from town visits, from romantic
lures, even word-of-mouth as a recruiting mechanism. Sometimes
we will ask ourselves, how could word-of-mouth be a positive
recruiting mechanism for these traffickers?
What I will pose is that if a victim of trafficking has the
opportunity to call back home at the source country, to any
family member or friends, more than likely that person is not
going to tell them that he or she was forced into a commercial
sex situation or slavery situation. More than likely they are
going to say that they are employed as a nanny or working in a
factory, et cetera.
So what this does is it fuels this positive marketing
campaign back at the source country, where the relative or the
friend is telling the neighbor, ``See, my relative went to New
York to this person and he or she is doing great.'' This fuels
a positive marketing campaign for these traffickers.
So the typologies for recruiting mechanisms are broad in
scope, and the same for the purpose of the exploitation here in
the United States. We encounter domestic servitude situations,
other forced labor situations, as well as commercial sex. So
what we encounter is broad in nature.
Ms. Sanchez. Thank you, Mr. Garcia.
I will now recognize for his 5 minutes Mr. Souder of
Indiana.
Mr. Souder. Thank you.
I know it is extremely critical to stay victim-centered,
but is your first cut a security cut? In other words, how do
you factor security in when you are doing detainees and
studying this trafficking?
Mr. Garcia. There is room for us to have a victim-centered
approach and still counter the two-pronged threat. The public
safety threat is the exploitation part of the infrastructure,
as well as the national security threat, which are the criminal
travel networks that traffickers use to facilitate the
transnational movement of foreign nationals.
Therefore, in the employment of the victim-centered
approach, as soon as we are able to corroborate information on
the particular exploitation of potential victims, at that point
we develop an operational plan to engage in a reactive
enforcement action. Normally, this could be viewed by different
law enforcement agencies as just being reactive in nature, but
that is not so. A reactive situation can be made into a
proactive, comprehensive, transnational investigation in which
we are able to identify and pursue the full scope of the
criminal enterprise.
That means at the source country, transit country and the
destination country?the infrastructure in the source country
being that of document providers, travel agencies, brokers,
corrupt government officials; and the same thing with the
transit countries, where you have your staging brokers. And of
course, here in the United States, you have your transportation
infrastructure, your distribution infrastructure, and your
receiving infrastructure, in addition to your exploitation
infrastructure at the end of the process.
Mr. Souder. Do you see that these prostitution rings and
sex slave rings also do other types of human trafficking, such
as drug smuggling or other contraband smuggling?
As I mentioned in my opening statement, the Italians say
that some of that in Europe seems to be moving over to
potentially funding terrorism. Do you see that in any cases
that you can talk about in open mic?
Mr. Garcia. Traffickers use criminal travel networks.
Criminal travel networks rely on transnational alliances. They
rely on loose confederacies. Because of that fact, they can
engage in the movement of other commodities as in narcotics,
money, et cetera. Therefore, yes, that is something that is
encountered from the criminal travel network perspective. Yes.
Mr. Souder. What percentage of illegal trafficking would
you say is prostitution, sex slaves-related, as opposed to
making garments illegally or trafficking in labor?
Mr. Garcia. I could tell you from the attorney general's
report. The majority of it is going to be focused on the
purpose of commercial sex, in contrast to labor. This is what
we have encountered as an agency, but this is where outreach
and training are so important.
With our boots on the ground, which is state and local law
enforcement that encounter the types of situations on a daily
basis, as well as foreign governments, as well as NGOs?all of
us are engaged in a training campaign so that we can identify
the indicators.
Mr. Souder. Do you have detailed records? If so, could you
submit them to us, that would separate that, and would also
show how much it is people being sold into sex slavery for use
of one person versus for prostitute purposes, or the different
variations of this?
And also if you have, just in broad terms?I assume you have
some kind of report that you have put together; I think I have
seen Mr. Miller's report before when he was at the State
Department?that we could show in our record what percent may be
under a certain age?
Increasingly from Asia, young minors are sold for
prostitution or for individual sex slavery, and even underage
marriages, which are illegal, but in some of those countries
they are trying to get away with that.
Mr. Garcia. The statistics that I can provide are the
demographics of the trafficking victims in which we provide
continued presence. A majority of these are going to be from
Latin America and Asia, the countries being Mexico, El Salvador
and Korea, as well as for extensions for continued presence,
which would include the country of Peru.
The majority of these are from large-scale cases. What I
mean by that is enforcement operations and investigations that
yielded us encountering a large number of trafficking victims.
I will note Peru being one of them in which it was a case in
which we encountered over 60 trafficking victims.
Mr. Souder. Thank you.
Ms. Sanchez. Mr. Cuellar of Texas is recognized for 5
minutes.
Mr. Cuellar. Thank you, Madam Chair.
Chief Garcia, thank you very much for the service that you
provide, particularly in my hometown of Laredo. I want to thank
them for starting Operation Blackjack, which I believe has been
a model for different parts of the country.
You all have, what, about 56 attaches in other nations.
That includes the Republic of Mexico also, I assume?
Mr. Garcia. Correct, sir.
Mr. Cuellar. Are you familiar with the missing Laredo
Americans that we have had? I think we have lost about 60
Americans? Are you familiar with that particular issue?
Mr. Garcia. No, not at all.
Mr. Cuellar. Okay. Could I ask you to?and I have a copy of
a Web page. I will get this. It is called LaredoMissing.com. We
have had some young ladies?Yvette Martinez is 27 years of age,
attended high school in Laredo and Laredo Community College.
There is Brenda Cisneros, that attended school there in Laredo.
And some other ones that have been missing.
We have been having difficulty working with our
counterparts across the river in trying to get this
information. I would ask you if you could get back to the
committee, or in particular get back to me, on some specific
answers through your investigative cooperations that you have
with your host country, which is Mexico. I think the problem
has been that we jus haven't got a single answer from across
the river on this.
I know that our Homeland Security will be heading sometime
in the future to Mexico and will bring it up, but we would like
to follow up specifically on the missing Americans that we have
in Laredo, or should I say, basically you have Laredo; they go
across the river.
For example, the two young ladies that I am talking about,
and there are other ones, Yvette Martinez and Brenda Cisneros
went to a concert in Nuevo Laredo. They called their mom after
the concert and said, ``Mom, we are coming home.'' They never
got to the bridge.
Eventually, the father found the car in a police impound in
Nuevo Laredo, so you can gather what basically happened there.
After the police, they had no idea what was going on, or they
had no information.
I really, really would appreciate it if you can use your
attache and get me some specific answers on this particular
issue.
Mr. Garcia. Absolutely.
Mr. Cuellar. Thank you.
Thank you, Madam Chair. I don't have any other questions at
this time.
Ms. Sanchez. I thank the gentleman from Texas.
I now recognize the gentleman from Florida, Mr. Bilirakis.
Mr. Bilirakis. Thank you very much, Madam Chair. I
appreciate it.
Thank you, Mr. Garcia.
Like many Americans, I am deeply concerned about the 90
percent absconder rate that our immigration system has. What
steps is ICE taking to help alleviate this unacceptable
situation?
Mr. Garcia. Sir, that is a question that I would like to
take for the record.
Mr. Bilirakis. Sure.
Mr. Garcia. That is outside my scope of expertise.
Mr. Bilirakis. Okay. You don't want to attempt it, either?
Mr. Garcia. This would be for the record.
Mr. Bilirakis. Okay. All right. How long does it take for
the U.S. to determine the true identity of someone seeking
asylum?
Mr. Garcia. As is or akin to any person attempting to make
entry into the United States, we run names through different
indices?immigration indices, federal indices, criminal indices.
Therefore, a determination can be made on the true identity of
an individual from the U.S. perspective and from information
that we have in our databases I would say rather quickly.
Now, information that would further identify an individual
from the source country, that would take additional time. That
is something that can work trough our attaches.
Mr. Bilirakis. Do you prematurely release individuals from
detention before we know their true identity beyond a
reasonable doubt?
Mr. Garcia. I would like clarification: This is anyone that
we encounter?
Mr. Bilirakis. Yes.
Mr. Garcia. If we disposition the person prior to knowing
the true identity?
Mr. Bilirakis. Yes.
Mr. Garcia. Basically, with biometrics and information that
we have, that is run through the indices here in the United
States. So if that individual doesn't have any derogatory
information or any additional information that would identify
that individual, that person may be released because we don't
have the derogatory information.
Mr. Bilirakis. Okay. Do you have the capability to detain
these individuals? Do you have the capability to detain these
individuals, in general?
Mr. Garcia. We have the capability to detain individuals,
yes.
Mr. Bilirakis. Okay. Thank you very much. I appreciate it.
Thank you, Madam Chair.
Ms. Sanchez. I thank the gentleman from Florida.
Lastly, Mr. Garcia, have you at ICE identified any
connection between human traffickers and terrorism? In other
words, is this a way that the terrorists are financing? Is
there any connection? Have you been able to identify the people
who are bringing in people for commercial sex or the garment
industry or other things, do they have a connection to
terrorism?
Mr. Garcia. There was a tasking to the Human Smuggling and
Trafficking Center under the purview of the Senior Policy
Operating Group, or SPOG, which is the governing body over
human trafficking policy issues. As I recall, there is no
distinct link between terrorist financing and human
trafficking.
Ms. Sanchez. So people who are bringing in humans for this
type of purpose, commercial sex and work and indentured
servitude, are doing it for the money?
Mr. Garcia. Yes. It is financially motivated.
Ms. Sanchez. And lastly, how much do you think we catch,
versus how much is really happening coming into the United
States?
Mr. Garcia. Trafficking is a very hidden crime, and its
victims very seldom self-report.
Ms. Sanchez. What would you estimate? Do we catch 10
percent of it, 50 percent of it?
Mr. Garcia. I could only report really what we encounter.
Now, this is why we find it important for us to continue the
training campaigns and the outreach campaigns, because the more
people learn how to identify trafficking in persons, we are
going to be able to identify more trafficking victims.
Ms. Sanchez. But you think there is more out there?
Mr. Garcia. Absolutely.
Ms. Sanchez. Double what you have encountered? Do you
stumble upon it a lot of times? Does it really take assets
focused right on the issue in order to get to it?
Mr. Garcia. We normally encounter these situations through
various forms, through information provided by different
sources; information provided into the tip lines. As a
government, we are moving to actually engage and move towards
proactive means of identifying traffickers and situations,
working hand-in-hand with source countries and transit
countries.
Therefore, yes, there is room for us to be able to identify
additional victims. We have only touched the surface of the
issue. I can only report what we encounter.
Ms. Sanchez. Thank you, Mr. Garcia.
I don't know if my ranking member has any final comments.
Mr. Souder. I wanted to follow up to your question, because
it is similar to one I asked. You said that you felt that the
nexus was the travel organizations who are often or could be
similar travel organizations to narcotics contraband or
terrorist networks.
In other words, it wasn't necessarily the same individual
who is smuggling people and prostitution and sex slavery, but
the organizations that they use could be the same?
Mr. Garcia. Absolutely. I wanted to make the distinction
that when we are talking about the traffickers, the trafficking
infrastructure, and the distinction between that and the
criminal travel network, the trafficking infrastructure we are
looking at the recruiters, brokers, et cetera, in the source
country. And then you have your exploitation infrastructure in
the United States.
What is in the middle is the criminal travel network.
Therefore, that is the infrastructure that may be engaged in
the movement of other commodities.
Mr. Souder. Do you see much Russian or Eastern European
trafficking?
Mr. Garcia. Yes.
Mr. Souder. Are they involved in other organized crime as
well?
Mr. Garcia. Yes.
Mr. Souder. So that wouldn't necessarily be true of that
subgroup?
Mr. Garcia. Correct.
Mr. Souder. Some of us feel prostitution, by definition, is
sex slavery. Are they entitled to asylum?
Mr. Garcia. What trafficking victims are entitled to are
the immigration will relieved for the short term, or they can
apply for long-term immigration relief. Now, if that person
comes from a country in which they can apply for asylum, I
believe so. But I could only account for the immigration relief
that we can provide as an agency, which would be continued
presence.
Mr. Souder. So the only thing you can is what again?
Continued presence?
Mr. Garcia. As an agency, U.S. Immigration and Customs
Enforcement, the authority that we have is to issue continued
presence, which is the short-term immigration relief.
Mr. Souder. Okay. So you are not involved in who gets
asylum and who doesn't?
Mr. Garcia. Correct.
Mr. Souder. So our questions on accelerated asylum are not
your decision?
Mr. Garcia. Correct.
Mr. Souder. Okay. I am interested in this question, because
ironically one of the huge debates that I have been involved
in, and others, and it is in the second panel's testimony,
which unfortunately I have a major meeting I have to go to. I
am going to try to get back for the end of the second panel.
But there is obviously a huge debate about how prostitution
plays into the international debate.
Basically, according to witnesses in the second panel, I am
one of the bad guys because I believe groups that encourage or
don't discourage prostitution should not get federal funds. At
the same time, I, ironically, because I believe prostitution is
sex slavery, would be more amenable to asylum. If it is viewed
as not that, you don't have the same eligibility.
So this debate is likely to continue as a sub-part of this
issue and how we rectify it. But that is what I wanted to sort
out. That isn't really going to affect you because you just
hold people until asylum cases are resolved. So the whole
question of prostitution is irrelevant for the purposes of this
hearing.
Thank you.
Ms. Sanchez. I thank the gentleman from Indiana. If you
want to leave your question at this point written, I will
certainly put it forward to our panel and hopefully get you
information faster than if you wait to submit it later, if you
are not going to be around.
Mr. Souder. Hopefully, I can get back.
Ms. Sanchez. Okay. Thank you.
Thank you, Mr. Garcia, for your testimony.
I am sure the panel?and we have a very busy day today. You
have probably seen all the elevators and everything else jam-
packed. So everybody has heavy schedules today, but I am sure
some of my colleagues will probably have some questions for you
in writing. I know that you have a couple already on record
that you said you would submit.
So expect us to get back to you and please submit them in a
quick manner, if you will.
Mr. Garcia. Absolutely. It would be an honor. Thank you.
Ms. Sanchez. Thank you.
And then I am going to welcome the second panel of
witnesses, if they will come forward.
I do welcome the second panel of witnesses.
Our first witness, Dr. Derek Marsh, has worked at the
Westminster Police Department for almost 20 years, serving for
the last 3 years with the Detective Bureau. In that assignment,
he has been responsible for all detectives at the department,
the Property Bureau, the Forensic Services Bureau, the Computer
Forensics Unit, and the Court Liaison.
Also, Lieutenant Marsh became involved with human
trafficking shortly after his assignment to the Detective
Bureau. His participation in the Orange County Task Force began
3 years ago, and he is currently the co-chair of the task
force. Lieutenant Marsh holds a master's degree in human
behavior from National University.
Our second witness will be Ms. Ann Jordan, an attorney who
has specialized in protecting the rights of trafficked persons
for more than a decade. As director of the Global Rights Anti-
Trafficking Initiative, she trains and collaborates with Global
Rights staff in using and training others in human rights-based
legal advocacy to combat trafficking. She works with an
international network of anti-trafficking nongovernmental
organizations.
She also is a founding coordinator of the Freedom Network
USA, the only nationwide anti-trafficking network. Ms. Jordan
has worked as a law professor at the Chinese University of Hong
Kong. She was a Fulbright Scholar and has written extensively
on the human rights of women in Asia and the rule of law in
Hong Kong. She holds a J.D. from Columbia Law School and a B.A.
from Columbia University.
Our third witness is Victor Cerda. He is currently the
partner in Washington, D.C.'s office of Siff & Cerda, and
focuses his legal practice on complex immigration matters. In
2005, Mr. Cerda concluded a 10-year government career in
immigration at the Department of Homeland Security. At the
department, Mr. Cerda served as the acting chief of staff and
counsel to the assistant secretary of U.S. immigration and
customs enforcement, what we know as ICE.
As counsel, he provided policy and operational oversight
over a myriad of ICE mission areas, including detention and
removal, the worksite enforcement national strategy, customs
investigations, and high-profile immigration removal cases,
including national security cases. Mr. Cerda concluded his ICE
career as the acting director of the Office of Detention and
Removal Operations. He is a graduate of Brown University and
received his J.D. from DePauw University.
I welcome all of you. I look forward to your testimony.
Without objection, the witnesses' full statements will be
inserted into the record.
I now ask each of you to summarize your statement in 5
minutes or less. I will begin with Lieutenant Marsh.
Welcome, and in particular, too, because he is from Orange
County. Welcome to the committee.
STATEMENT OF LIEUTENANT DEREK MARSH, CO-DIRECTOR, ORANGE COUNTY
(CA) HUMAN TRAFFICKING TASK FORCE
Lieutenant Marsh. Thank you. Good afternoon.
First, I would like to thank Congresswoman Sanchez and the
committee for the invitation to speak about issues impacting
human trafficking collaborations. I hope you find my local law
enforcement perspective beneficial.
The Orange County Human Trafficking Task Force and I are
relative newcomers to the issues surrounding human trafficking.
Still, my roles as both an active law enforcement officer and
the co-chairperson of the task force, have permitted me to
develop both operational and administrative points of view.
Operationally, I see two primary concerns: first, the
severe definition of ``human trafficking''; second, the severe
definition of ``trafficking'' creates extreme prosecution
thresholds which undermine local and federal investigations.
The severe language used to define human trafficking at the
federal level has been repeated at the state level. Our
agency's experience over the past 3 years indicates traffickers
use psychological means of force, fraud or coercion far more
frequently than physical assault or torture. Potential federal
and state cases are not pursued due to the severely myopic
definition of ``trafficking'' and victims are not being
identified or served.
Trafficking in humans has evolved to mean the exploitation
of children, women or men for the purposes of labor or the
commercial sex trade by the use of physical or psychological
force, fraud or coercion. Federal and state legislation should
reflect this more comprehensive reality or cases and victims
will continue to be lost.
We have worked several cases in the past 3 years in
collaboration with ICE and the FBI. All of these cases involved
the use of psychological force, fraud or coercion by the
traffickers. However, without the severe elements of physical
abuse or torture, federal prosecutors refused to become
involved. Because the state law mirrors the federal law, state
prosecutors refused as well.
For example, our most recent case involved women from
Malaysia and Singapore working in a series of residential
brothels. They were solicited and recruited to come to the
United States from their home countries; met at the airport
where their passports, personal documents and valuables were
immediately taken; taken to the brothel, which was secured by
closed-circuit TV and surveillance surrounding the location,
and brothel security.
Naturally isolated by language, social and cultural
barriers, their money was controlled by the traffickers and the
women were escorted everywhere they went. No outright physical
abuse or torture was used. When the 8-month investigation ended
and arrests were made, neither federal or state prosecutors
would file human trafficking charges because it did not meet
the extreme threshold established by law.
Administratively, I see two primary concerns, too: first,
economic sustainability of the task force efforts and
objectives; and second, human trafficking measures and outcomes
are divergent. Economic sustainability of task forces is
fundamental to their success, regardless of whether they are in
locations where there are point-of-entry issues or locations
where trafficking victims are transported or transactions take
place.
Federal mandates assure federal agency interest and NGO
missions and compassion ensure their interest as well. However,
local law enforcement interests are best maintained by
financial support. From an enforcement perspective, this
translates into funding for relevant training and investigative
overtime. I would suggest in addition enforcement
collaborations would best be served by paying for local
officers to be dedicated to an enforcement task force.
Local frustrations mirror federal frustrations in not being
able to realize the estimated number of trafficking victims. In
large part, the limited definition of ``trafficking''
undermines realizing the broad scope of the issue, and hinders
the identification and rescue of victims. On another level,
unclear measures and vague outcomes expected from human
trafficking prevention, protection and prosecution efforts add
to the confusion.
While the issues are complex, the divergence between
projections and actual counts is real. These inconsistencies
influence local law enforcement decisions to participate in
human trafficking task forces. Until the representations about
trafficking reflect the outcomes of task force efforts, getting
local law enforcement to participate, much less collaborate,
will continue to be problematic.
In conclusion, I would like to thank the subcommittee again
for inviting me to come and speak. I would also like to thank
Sergeant Tom Feener for accompanying me today and offering his
support and feedback in developing our thoughts on the issue.
And finally to say I didn't really mention NGOs during the
course of my speech because I have been so impressed with their
compassion and inspired by it. It is really not a question of
whether they are going to participate. It is how we get them to
participate in these investigations and support the victims
once we find them.
I am prepared for any questions you may have. Thank you.
[The statement of Lieutenant Marsh follows:]
Prepared Statement of Lt. Derek J. Marsh
March 20, 2007
Introduction
I became involved in working with federal, state, and local
agencies regarding human trafficking in 2004. I joined the Orange
County Human Trafficking Task Force (OCHTTF)--at that time, a loose
knit, unfunded collaboration of agencies concerned with the issues
surrounding human trafficking. Over the course of the next three years,
my agency (the Westminster Police Department, CA) attempted to
proactively pursue human trafficking cases while teaming with
Immigration & Customs Enforcement, the Federal Bureau of Investigation,
the Department of Labor Wages & Hours Division, and a host of
passionate, non-governmental agencies, indirectly headed by CSP, Inc.'s
Director of Victim Services Ronnetta Johnson.
Currently, thanks to Congresswoman Loretta Sanchez, the OCHTTF
receives funding for administrative support and law enforcement
outreach, training, and overtime. Thanks to Marissa Ugarte of the
Bilateral Safety Corridor Coalition, via a contract with the Department
of Health & Human Services, OCHTTF participates in the Unity Coalition
program funding, allowing for dedicated efforts to be made regarding
community outreach and awareness. Our meetings have gone from quarterly
to monthly, with attendees filling the room. Recently, OCHTTF
participated in formal strategic planning sessions, and our members are
more focused than ever on developing meaningful partnerships to support
our primary goal of eliminating human trafficking. Local university
representatives, namely Vanguard University's Sandie Morgan and
California State University Fullerton's Rosalina Camacho and Dr.
Rebecca Dolhinow, have coordinated seminars and symposiums on human
trafficking leading to the participation and raised awareness of
hundreds of people. The OCHTTF has been fortunate, both in supporters,
resources, and an ever increasing willingness to participate by its
stakeholders.
Yet, for most of the three years I have participated as the co-
Chair for OCHTTF, we have experienced ongoing collaboration challenges,
too. Four of the most significant issues with which I have experience,
include:
1. The ``severe'' definition of human trafficking at the
federal level, which has been mirrored by many states as well
(including California), has hampered the ability of prosecutors
to pursue human trafficking charges against subjects. This is
especially true with regards to the commercial sexual
exploitation aspect of trafficking.
2. Balancing local and federal approaches to the investigative
process.
3. Economic sustainability impacts the capacity and efficacy of
human trafficking task forces.
4. Disparate estimates and actual measures regarding human
trafficking victims and nebulous outcome expectations
contribute to the unwillingness of local law enforcement to
dedicate resources (i.e., personnel) to human trafficking task
forces and enforcement efforts.
``Severe'' Human Trafficking
The emphasis on ``severe'' human trafficking has undermined many
potential human trafficking investigations. The federal severe
definition has cascaded into the state definitions, and has become a
crutch, used predominantly during commercial sex trafficking, to
nullify local efforts to charge suspects with human trafficking. A
reassessment of the severe definition of human trafficking is warranted
to determine if it can be modified to address the realities local law
enforcement is more likely to encounter.
As the panel knows, the federal law regarding human trafficking
(HT) originated as a grassroots concern regarding domestic and
international trafficking. Non-government organizations (NGOs) led the
campaign to have the Trafficking Victims Protection Act of 2000 (TVPA)
adopted as law. Before 2000, federal prosecutors had no law directly
addressing human trafficking; instead other federal statutes had to be
applied in order to prosecute suspects in human trafficking. NGOs and
supporters used testimonies of trafficking victims to provide an
international and domestic viewpoint underscoring the imperative to
have a federal law created. They relied on egregious examples of human
trafficking to make their points. General and personal narratives of
beatings with hangers, gang rapes, murders, kidnapping, threats of
death, chaining victims to beds, extended isolation, forced abortions,
food, water and medical deprivation and inescapable debt were used to
demonstrate the compelling need for HT laws and victim support. The
fact these stories were true added a crucial human dimension to the
issue.
Severe human trafficking cases, both domestic and transnational,
provide compelling narratives. During the course of my relatively short
involvement with human trafficking, every seminar and training I have
attended emphasizes these cases, creating an expectation of extreme,
inhumane treatment leveled against unwitting immigrants. Federal
agencies in Orange County, California, recently completed our first
human trafficking prosecution involving child slavery. The case facts
paralleled many of the severe depictions of human trafficking: the
female child was sold into slavery by her parents in Egypt, kept in the
garage on a urine soaked mattress for years, had to perform menial
chores at the private residence, was not allowed outside contact,
including education, and had to wash her clothes out of a bucket while
the traffickers and their children enjoyed all the modern amenities.
This case shocks the conscience of most people.
This case, however, is not representative of the commercial sex
exploitation cases involving illegal immigrants we have encountered and
attempted to develop at the local level. Instead of outright force and
physical coercion, we are finding victims who are subjected to more
psychological and situational coercion and duress tactics. In one case,
we discovered residential brothels using women from Malaysia and
Singapore. Before we knew all of the information below, we offered to
have the local ICE agents and Assistant United States Attorney take the
case, but it was rejected. In this case, which is still undergoing
prosecution for state charges of pimping and pandering, the following
conditions were found to exist:
Their passports, identification of all types, and
valuables were immediately taken
The women are naturally isolated by language, social
and cultural barriers
Brothels were secured with closed circuit TV, cameras
surrounding the location, and staff
The money the women take in and receive are controlled
by the traffickers
The victim's movements are controlled by the suspects
(escorted everywhere)
Consequence for taking a day off--placed off site at a
bad motel at their expense with escort.
They were required to work 21 day cycles, with 7 days
off, in accordance with their menstrual period.
In further contrast to severe trafficking, they received
significant monetary compensation for their ``services.'' This case was
considered a pimping and pandering case due to the lack of ``severe''
elements associated with the prostitution of the women.
This case is not atypical of the cases we have found when
attempting to proactively pursue commercial sex exploitation of illegal
immigrants. I had the privilege to participate in a panel with Dr.
Laura Lederer (of the State Department) and Lisa Thompson (trafficking
advocate for the Salvation Army) a month ago. Both claimed all human
trafficking is necessarily severe, and that the term severe was added
to the TVPA of 2000 to ensure its passage. I appreciate the need for
legislative compromises, but would question the need to keep this
terminology seven years after the statute has been in effect.
Regarding commercial sex exploitation, Farley et al. (2003) \1\
surveyed prostitutes in nine countries (including the United States)
and found that 87% had experience at least one incident of violence,
57% of prostitutes have been raped, a majority (68%) showed clinical
symptoms associated with post traumatic stress disorder, and 89%
responded that they needed to get out of prostitution. These findings
and others led the authors to conclude their report disputes the
contention ``that prostitution is qualitatively different from
trafficking'' (Farley et al., 2003).
---------------------------------------------------------------------------
\1\ Farley, M., Cotton, A., Lynne, J. et al. (2003). ``Prostitution
& trafficking in nine countries: An update on violence and
posttraumatic stress disorder'', Journal of Trauma Practice, vol.2, 33-
74. Retrieved from www.prostitutionresearch.com.
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My personal perspective on the situation is this: The federal
government did not want to get into the business of enforcing
prostitution in the domestic arena, but was compelled to take a stand
in reference to confirmed reports of severe human trafficking. The
severe terminology and the transnational emphasis on victims addressed
the need to condemn human trafficking without getting involved with
pimping and pandering at the local-state levels. However, human
trafficking has evolved over the seven years of the statute, and now we
have domestic trafficking of citizens, with a special focus on
juveniles, who are considered trafficking victims based on their age
(less than 18 years old). In the meantime, states began adopting human
trafficking laws, predominantly mimicking the severe language of the
federal law.
But the application of human trafficking into the domestic venue
has muddied the perception of its relevant elements, especially with
regards to the immigrant emphasis and egregious acts. How do you claim
a 17 year old American citizen who is a prostitute with a pimp is a
human trafficking victim and an 18 year old American citizen who is a
prostitute with a pimp is not? In application of the law over time,
human trafficking has transformed into protecting children, women and
men from labor and sexual exploitation, regardless of citizenship. If
there is no qualitative difference between a prostitute and a
trafficking victim as Farley et al. (2003) assert, and teenage
prostitutes who are American citizens are human trafficking victims,
then pimps are human traffickers--exploiters of people who prostitute.
A logical next step is to draw parallels between American pimps and
panderers (domestic human traffickers exploiting citizens) who are able
to create psychological dependency in their prostitutes (exploited
citizens) and the pimps and panderers (transnational human traffickers
exploiting immigrants) who are able to create psychological dependency
in their prostitutes (exploited immigrants). And how much easier must
it be to psychologically entrap a foreign national with severe
language, social and cultural limitations (especially if they are here
illegally with no documents) than it is to entrap an American citizen?
The severe definition of trafficking, along with the many egregious
narratives substantiating it, serve to undermine the less dramatic but
significantly more prevalent exploitations of immigrants and citizens.
The language of the federal law is overdue to be changed to reflect the
current research findings and federal enforcement practices.
The good news at the local level is we do not require a human
trafficking law to arrest traffickers. We have an array of local laws
and some federal laws that can provide significantly more jail time
than typical human trafficking convictions. From a local perspective, I
have still made an arrest and provided the opportunity for victim
services to exploited people. And, if a local law enforcement agency
becomes aware of a rare egregious case involving severe human
trafficking, I have no doubt they would actively pursue the case,
collaborating with as many federal and local agencies as necessary in
order to complete the investigation and prosecution.
The bad news at the local level is local law enforcement is
reticent to engage their limited resources in pursuit of human
trafficking suspects and victims when previous state laws suffice and
local political and organizational imperatives do not necessarily seek
to forward the vague and apparently contradictory federal statutes.
Based on my experience, federal agencies will not collaborate unless
juveniles are identified or severe elements can be proven before
arrests are made. In the end, extreme legal definitions mitigate local
and federal enthusiasms from a daily commitment perspective.
Balancing Local and Federal Investigative Approaches
The Westminster Police Department has had the opportunity to
partner with ICE & FBI in several potential commercial sex exploitation
investigations involving immigrants. These investigations revealed
significant differences in the federal versus local expectations
regarding the normal course of human trafficking investigations. The
federal perspective, from a 10,000 foot view, relies on intelligence
gathered via surveillance, PEN registers, and wire taps over months
(and sometimes, years) to fully describe the criminal enterprise,
identify as many of the suspects as possible, assess potential assets,
and develop as much of the case prior to arrests as possible. In part,
I have been led to understand this investigative process is a result of
the federal prosecution requirements. Also, federal agencies have
access to greater personnel and technical resources, which allows for
these long term investigative techniques to be employed more readily.
In addition, substantial, intricate, long-term cases can lead to
accolades for the involved agents, as well as potential positive career
options.
The local approach to investigations involves a more short-term,
pragmatic view of the investigative process. Suspects, victims and
customers are our primary sources of reliable intelligence:
surveillance is used to confirm the activity, and we wait (usually)
until the arrests are made to get call histories out of the phones
belonging to the involved parties. We do not have the personnel
resources to devote to several months of investigation; our local
imperatives must be balanced with these attempts to achieve federal
priorities. For example, we received information from a reliable
informant regarding a residential brothel operating on the borders of
our city. We staked out the location, confirmed the traffic, secured
and served a state search warrant involving Korean immigrants being
sexually exploited. This investigation led to a higher level suspect,
whom managed multiple residential brothels using primarily Korean
immigrants. In summary, the local-state approach involves a more rapid
turnaround, an emphasis on arrestees and victims providing the most
credible information and a culture which rewards investigators who
complete the most investigations using the limited amount of technical
and personnel resources available.
These differences in approach at the federal and local levels are
not insurmountable; but role clarification and agreed upon information
sharing is critical to successful collaborations. Local investigators
can be a productive resource for federal agents, generating arrests,
victims, and some basic technically related intelligence (like cellular
phone records). Federal agents can supplement this intelligence through
their extensive records systems, as well as assisting in services
required by illegal immigrants in conjunction with NGO victim service
providers, as appropriate. This aggregate intelligence can then be
leveraged with the more extensive resources available to federal
agencies to identify and dismantle criminal enterprises. The success of
this model relies on the ongoing cooperation of all the agencies
involved, and involves a commitment to share intelligence throughout
all phases of this process.
Economic Sustainability
Attempting to administer a task force without financial backing is
problematic, at best. Non-funded task forces are at the mercy of the
collateral discretion of agencies that wish to participate. OCHTTF was
non-funded for two and half years. We held quarterly meetings, many of
which were sparsely attended. Participation in strategic planning, goal
setting, and information sharing was dependent on the discretionary
capacity of the participants. In fairness, federal agencies
participated and shared their perspectives most consistently; in large
part, their participation reflected the federal mandates under which
they operated. Non-government organizations participated with relative
consistency, too; their degree of participation seemed to reflect how
closely their mission mirrored OCHTTF's. Local law enforcement
participation was anemic; the Westminster Police Department was the
only consistent participant in OCHTTF while it was non-funded, and that
was primarily because of my central role in the task force. Without
financial support, task forces are ad hoc, at best. Their ability to
accomplish strategic and tactical tasks is inconstant. Their capacity,
in the sense of ongoing personnel and planning commitments, is
haphazard.
On the other hand, being co-Chair of a funded task force is
invigorating. Many more agencies attend much more consistently.
Attendees are more willing to participate in short-term requests for
outreach and training. More minds contribute to strategic planning and
goal setting, creating a more synergistic and comprehensive local human
trafficking agenda. More federal agencies participate than before, and
more NGOs attend, as well. Local law enforcement participation doubled,
thanks to grant from Congresswoman Loretta Sanchez; however, local law
enforcement participation is still a significant challenge.
The local law enforcement challenge will require funding to be more
directed at assigning personnel to enforcement activities and/or
investigative overtime. Without this type of funding, local imperatives
will override the federal focus on human trafficking investigations,
prosecutions, and the subsequent protection of victims and prevention
of ongoing victimization. One possible ameliorative to this issue would
be to federally support businesses with transnational presence to focus
their corporate citizenship initiatives towards local human trafficking
task forces. I do not consider this kind of support a panacea; however,
corporate sponsorship of seminars, symposiums, and other related events
might reinforce the participation of local agencies.
In addition, federal financing of task forces in the future might
want to emphasize the creation of enforcement task forces joining
federal, state, and local public safety components. In my experience,
this would probably best be coordinated by county law enforcement,
though I hesitate to proffer this model as the only viable possibility.
Funding for counties willing to create a task force, regardless of
having significant points of entry, should be considered. The current
emphasis on counties with significant points of entry discourages the
creation and participation of local law enforcement in trafficking
investigations. The bottom line is that there are many more
jurisdictions than the 42 currently funded that have the potential for
identifying and prosecuting human trafficking.
Overall, local law enforcement does not appear to be motivated to
participate simply because a local task force has received funding.
Funding opportunities should be tied to local agency participation not
just at task force meetings, but also with respect to enforcement
activities.
Conflicting Victim Estimates and Unclear Outcomes
It is no secret there exist significant discrepancies between the
estimates of human trafficking victims and the actual victims we have
been able to identify. Without belaboring the issue, the recent
Government Accounting Office report (GAO-06-825, July 2006) titled
Human Trafficking: Better Data, Strategy, and Reporting Needed to
Enhance U.S. Antitrafficking Efforts, identifies many of the challenges
associated with accurately representing human trafficking activities
and victims. The GAO report addresses the international aspects of
trafficking; the findings resonate with local perceptions, as well. The
most pertinent discussion referenced the lack of performance measures,
which have led to vague outcomes (p. 3). At a different level, these
vague outcomes are a consequence of the disparity between the severe
definitions of trafficking at the federal and state levels of
government versus the less than severe cases our investigations
indicate are significantly more prevalent. It is difficult to generate
local enthusiasm for human trafficking, much less local and federal
collaborations, without clear expectations regarding human trafficking
enforcement efforts.
Conclusion
I have attempted to address four areas that impact local and
federal collaborations. The semantics of the human trafficking
legislation is crucial, and is resulting in trafficking cases not being
identified, investigated and prosecuted as such. The frustrations in
finding cases involving trafficking, but not severe trafficking, put
strains on the federal and local collaborations and information sharing
commitments. Investigation methodologies can also hamper trafficking
investigations and effective collaborating. Clarifying roles and
expectations of federal and local enforcement personnel goes a long way
towards building mutual trust. Economics are a basic reality: personnel
time is money, as are the lost opportunities a local agency incurs by
committing resources to any enforcement activity. Paying local law
enforcement for their participation in human trafficking activities,
especially investigations, goes a long way towards ensuring their
presence. Finally, challenges in estimating and tracking trafficking
cases are a result of the three other issues discussed. Applicable
laws, clear role expectations and program funding all support finding
more victims, and helping to determine achievable measures and
performance outcomes.
Overall, co-Chairing the OCHTTF has been extremely rewarding.
Everyone shows a passion for protecting victims and preventing the
exploitation of people, and many have dedicated many hours to ensuring
these crimes are not forgotten. NGOs' commitment is remarkable; their
dedication to this cause has centered my efforts on more than one
occasion. I would like to thank the Committee for its time and
willingness to hear and listen to my perception of issues, as a local
law enforcement representative, impacting human trafficking. I hope my
insights, as narrow as they may be, contribute to your greater
understanding of the local dynamics of human trafficking.
Ms. Sanchez. Thank you, Lieutenant.
I will ask Ms. Jordan to summarize her testimony in 5
minutes or less.
STATEMENT OF ANN JORDAN, PROGRAM DIRECTOR, INITIATIVE AGAINST
TRAFFICKING IN PERSONS, GLOBAL RIGHTS
Ms. Jordan. Thank you, Madam Chair.
I am honored to participate in today's hearing and to speak
about trafficking six years after the passage of the Victims of
Trafficking and Violence Protection Act. In my brief time, I
would like to discuss three areas of great concern to my
organization, as well as to others.
The first issue focuses on resources for NGOs and law
enforcement on human trafficking. The first part of this is the
need for the U.S. to maintain its anti-trafficking focus on the
13th Amendment prohibition on slavery and involuntary
servitude.
Current federal law enables prosecutions of all enslavers
and provides protection for all victims. Among those convicted
to date are the enslavers of a 10-year-old Egyptian girl in
Orange County, California who was held in a dark, unventilated
garage, forced to take care of the house and five children,
deprived of an education, and subjected to emotional and
psychological abuse.
Also convicted were the traffickers in the largest case to
date of 275 women and men from Vietnam and China who were held
in forced labor in American Samoa and subjected to threats,
serious physical assaults, inadequate nourishment, rapes, and
an endless cycle of debts?all of which was enforced by security
guards.
However, this broad framework is being eroded by a U.S.
campaign that equates prostitution with trafficking and is
redirecting resources to end prostitution, rather than to end
trafficking.
The campaign is based on the unproven belief that all
prostitution, even legal prostitution in Nevada, is
trafficking, and so criminalizing prostitution, including
clients, is presumed and promoted as a means to stop
prostitution and to stop trafficking for prostitution. It also
ignores the reality that clients, brothel owners and pimps are
arrested by the thousands each year, yet prostitution and
trafficking into forced prostitution continues.
The campaign is included in a 2003 amendment to the TVPA,
the trafficking law which requires grantees to adopt a policy
stating they do not promote, support or advocate for the
legalization or practice of prostitution using U.S. government
funding and even non-U.S. government funding.
At first blush, this might appear to be a reasonable
requirement because organizations obviously are set up to help
trafficking victims, and even those refusing to adopt the
policy do not promote prostitution. However, the law is highly
problematic.
First, it is a gag rule. It prevents service providers,
activists, scholars and organizations to exercise their First
Amendment right of freedom of speech, and it prevents them from
using their non-U.S. government funds to debate, analyze and
speak out freely about the question of a relationship between
the legalization of prostitution and human trafficking, thereby
cutting off the free flow of ideas necessary for developing
effective do-no-harm policies.
It is also causing organizations to restrict their
activities in who they work with. It is causing organizations
to reject U.S. funding by the organizations that are highly
qualified and been funded in the past. And it has caused some
harm to actual victims of women in prostitution because it has
increased the stigma and promoted foreign governments to really
crack down on women in prostitution.
The campaign is also reflected in the reauthorization act
in 2005 that calls for research on sex trafficking, which by
definition in federal law includes all prostitution. It
establishes a grant program for state and local law
enforcement. Now, we believe that there is a large role for the
federal government to play in addressing the harms of
prostitution and the causes leading youth and adults to enter
into prostitution in the first place, and that prevent them
from exiting.
The federal government could, and I think should, provide
much-needed compassionate and supportive funding for treatment
services and prevention programs. However, shifting money and
federal staff to investigate and prosecute non-trafficking
prosecution activities would be a bad outcome. First, there are
dedicated trafficking units in Justice and the FBI and in ICE,
and their task would be diverted to going after prostitution.
Second, prostitution is not per se a violation of the 13th
Amendment, so it is not really a federal crime unless there is
a federal law involved and federal resources would be shifted.
Very quickly, I also want to just highlight a number of
issues that service providers say that they confront in working
with people who are trafficked. I don't have time to discuss
them all. They are in my testimony.
But we have situations in the United States now where
unaccompanied children are languishing in inappropriate
housing, and HHS needs to be empowered to determine that the
child is a victim of a severe form of trafficking, and transfer
them quickly to an unaccompanied refugee minor program. Right
now, it is Justice or Homeland Security that makes that
decision, which it shouldn't be doing because it is actually
interrogating the children.
Next, we believe that trafficked children should not be
interrogated unless and until HHS has made an independent
finding based upon expert opinion that the child is stable and
competent. Even when there is a raid, those children are highly
traumatized and should not be interrogated by somebody who is a
law enforcement official who may have no understanding of the
issues these children are faced with.
Interviews with children, anyway, should be kept in
confidence by the Office of Refugee Resettlement in HHS which
now shares this information with the Department of Homeland
Security.
The last issue, which I won't go into, is there is a
continued need for children to be able to bring their parents
here to the United States to protect them and be with them.
Now, the process is very slow. There is a need for people who
are parents and family members who are already in the United
States to have a legal status so that they are not subject to
possible deportation while they are trying to help their family
member who has been a victim. All of this is more fully
explained in my testimony.
Thank you, Madam Chair, for this opportunity. I look
forward to answering any questions you may have.
[The statement of Ms. Jordan follows:]
Prepared Statement of Ann Jordan
March 20, 2007
Thank you, Madam Chair. I am honored to participate in today's
hearing and to speak about human trafficking, six years after the
passage of the Victims of Trafficking and Violence Protection Act of
2000.
My organization, Global Rights, is an international human rights
organization operating in the United States and numerous countries
around the world. We work with local partners and activists to
challenge injustice and to amplify new voices in national and
international fora. We believe that real change occurs from the ground
up and so we and our partners typically work with the most
disadvantaged and marginalized members of society, including people who
have been trafficked and who are vulnerable to trafficking, as well as
other human rights abuses.
In my brief time, I would like to discuss three issues that are of
great concern to my organization, as well as other organizations:
1. The problematic consequences that arise from the U.S.
government conflating trafficking with prostitution;
2. The gaps in the federal trafficking legislation with regard
to the special status of trafficked children; and
3. The need for broader relief and a quicker process for
granting victims and their family members immigration relief.
1. The U.S. must maintain the anti-trafficking focus on the 13th
Amendment prohibition on slavery and involuntary servitude.
Current federal law enables prosecutions of all enslavers and
provides protection for all victims. The 2000 Victims of Trafficking
and Violence Protection Act defines traffickers as people who use
force, fraud or coercion to hold adults or children in forced labor,
slavery, involuntary servitude or debt bondage or to cause adults to
perform commercial sex acts. It further defines trafficking as causing
a minor to engage in commercial sex acts, with or without force, fraud
or coercion. Thus, the federal law ensures that all victims of
trafficking into homes, brothels, fields, streets and factories are
recognized and that all traffickers and enslavers are subject to
federal prosecution. It recognizes that traffickers are equal
opportunity enslavers who are more than willing to treat human beings,
including children, as chattel in violation of the 13th Amendment
prohibition on slavery and involuntary servitude.
From 2001 through 2005, 298 defendants have been charged with
trafficking offenses and 140 have been convicted as of the end of
2005.\1\ Among those convicted were the enslavers of a 10 year old
Egyptian girl in Orange County, California, who was held in a dark,
unventilated garage, forced to take care of the house and 5 children,
deprived of an education and subjected to emotional and physical
abuse.\2\ Also convicted were the traffickers the largest case to date,
that of 275 women and men from Vietnam and China who were held in
American Samoa in forced labor, and subjected to threats, serious
physical assaults, inadequate nourishment, rapes, and an endless cycle
of debts, all of which were enforced by security guards.\3\
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\1\ Attorney General's Annual Report to Congress on U.S. Government
Activities to Combat Trafficking in Persons, FY 2005, p. 16.
\2\ United States v. Ibrahim and Motelib (2/2/05) (C.D. Cal.)
\3\ United States v. Kil Soo Lee et al. (D. Hawaii)
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The law has also provided benefits and services to 841 victims from
2001 to 2005. While certainly more resources would increase the number
of cases uncovered and prosecuted and victims served, the law remains,
nonetheless, an excellent roadmap for further expansion and deserves
our support.
However, this broad framework is being eroded by a U.S. campaign
that equates prostitution with trafficking and is redirecting resources
to end prostitution rather than to end trafficking. This anti-
prostitution focus is affecting delivery of services to victims and we
are concerned that federal investigators and prosecutors could be
assigned to non-trafficking prostitution cases instead of 13th
Amendment trafficking, slavery, forced labor and involuntary servitude
cases.
Over the last six years, the broad scope of the U.S. anti-
trafficking policy has been gradually narrowed to fit an anti-
prostitution agenda that is based on the unproven belief that all
prostitution (even legal prostitution in Nevada) is trafficking, and so
criminalizing prostitution, as well as clients, is promoted as a
purported means to stop prostitution and to stop trafficking for
prostitution. This approach assumes that, once all men who buy sex are
in prison, all women in prostitution will magically disappear and find
other means of support. It also ignores the reality that prostitution
is illegal in almost the entire United States and that clients, brothel
owners and pimps are arrested by the thousands each year, yet
prostitution and trafficking into forced prostitution continues.
Obviously, the law enforcement approach has had little impact upon the
underlying factors that lead to prostitution and that enable
traffickers to force people into prostitution (and other sectors).
This anti-prostitution approach is reflected in policies and laws
that have produced negative, but not unexpected, consequences. The
major vehicle for enforcing this approach upon the non-governmental
sector is a 2003 amendment to the TVPA that restricts funding to
organizations that adopt a policy stating that they do not `promote,
support or advocate for the legalization or practice of
prostitution'.\4\ Organizations must pledge not to use U.S. government
funding and even non-U.S. government funding in any way that the U.S.
might decide violates the prohibition. At first blush, this might
appear to be a reasonable requirement because organizations set up to
help trafficking victims (even those refusing to adopt such a policy)
do not promote prostitution. Nonetheless, the law is highly problematic
at many levels.
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\4\ Trafficking Victims Protection Reauthorization Act of 2003, PL
108-193.
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The anti-prostitution `gag rule' deprives grantees of the First
Amendment right to freedom of speech. It forces U.S. grantees to
relinquish their First Amendment right and forces non-U.S. grantees to
relinquish their internationally-recognized right of freedom of speech
and thought, including the right to debate, analyze and speak out
freely, even about the question of a relationship between legalization
of prostitution and human trafficking. The trafficking `gag rule' only
permits debate, research or discussion on the relationship between
criminalization of prostitution and trafficking. Thus, university
grantees cannot hold conferences in which legalization is discussed and
grantees cannot attend such conferences, write about the impact of
criminalization on women in prostitution or trafficking, or engage in
activities that may be perceived by the US as `promoting, supporting or
advocating' legalization of prostitution.
One grantee, out of fear of losing funding, prevented a prominent,
highly-respected expert from attending an international workshop in
which participants discussed trafficking, prostitution, labor,
migration and the U.S. gag rule. Also, many organizations have purged
prohibited words such as `sex work' and `harm reduction' from their
materials and websites because they know that U.S. officials are
scanning websites in search of prohibited words, alleged by U.S.
officials to be evidence of `promoting' prostitution. Obviously, the
gag rule is cutting off the `free flow of ideas' needed to develop
sound and effective evidence-based policies on human trafficking and
prostitution, which both affect the lives of millions of people around
the world.
The gag rule is also causing organizations to restrict activities
for fear of losing U.S. funding. The terms `promote, support or
advocate' are vague and, in my research with organizations in 6
countries,\5\ not one US government official has been able to explain
to anyone what these words mean. In many countries, the U.S. is one of
the main donors on trafficking, which is causing some foreign NGOs to
stop working with people in the sex sector or collaborating with NGOs
working with sex workers.
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\5\ United States, Russia, Poland, Moldova, Nepal and Thailand.
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Despite the lack of guidance on what violates the gag rule, we do
know that organizations cannot receive U.S. funding if they support of
the rights of persons in the sex sector or support sex worker
collectives, even if the women are simply asking for legal protections
from police and client violence, education for their children, 100%
condom usage, support to keep children out of prostitution and rescue
trafficking victims, as well as the panoply of rights that non-sex
workers take for granted. We have a report of a grantee that stopped
allowing a collective of sex workers to use its premises for meetings
apparently out of concern that the presence of sex workers on the
premises talking about their work and their rights would threaten the
organization's U.S. funding. We do not believe the U.S. should be using
its considerable resources and power to undermine the ability of any
people, even those in the sex sector, from seeking their basic rights.
The gag rule leads to qualified NGOs rejecting US funding. My
research also reveals that the anti-prostitution gag rule is causing
effective and respected organizations to cease applying for US funding
because they are not willing to make any statements or take a position
that could jeopardize their relationships with, or further stigmatize,
the women with whom they work. They prefer to remain grounded in the
reality of their countries and refuse to accept money to promote a
policy that they know is counterproductive and ineffective in reducing
prostitution or trafficking in their own countries.
The anti-prostitution language contributes to the stigma suffered
by persons in the sex sector. People working in the sex sector are
subjected to discrimination, exclusion and social condemnation. When a
woman is trafficked into the sex sector, she is subjected to the same
type of treatment from society and even family members and so her
contact with service providers must be non-judgmental, non-reformist
and compassionate. Since U.S. funded service providers must now declare
their opposition to the industry into which many women are trafficked,
those service providers cannot say or do anything that might remove the
stigma of prostitution from the victim, since that could be interpreted
as `supporting' prostitution. Partner organizations that work
extensively with people in the sex sector, including trafficked women,
report that, if a woman feels any negativity coming from the service
provider she is highly likely to walk out and stop receiving much-
needed services, and also not cooperate with law enforcement.
Furthermore, victims who do not feel comfortable with their service
providers may find their only way to make a living is to return to
prostitution as a quick means to support themselves and their families
back home, and perhaps to pay off the debt incurred by them and their
family members for migrating. If they feel that non-judgmental support
is unavailable, they may decide to simply disappear into the
underground economy, even into prostitution, rather than submit to
demoralizing treatment by service providers who have signed the anti-
prostitution gag rule.
One Asian organization reports that U.S. influence on its
government and funders is creating divisions and increasing the stigma
against people in prostitution. The U.S. is promoting an anti-
prostitution agenda in many countries under the banner of `anti-
trafficking' and, in some places, it is dividing the anti-trafficking
community and demonizing the very sex workers who are working to stop
child prostitution and trafficking into prostitution. The U.S.-led
campaign against prostitution is also indirectly giving permission to
governments to crack down on women in prostitution and to harass women
migrants suspected of being prostitutes. It is also undermining efforts
to create a regional network of sexworkers that could collaborate on
health, HIV/AIDs, rights, anti-trafficking and other issues.
These negative consequences would be removed if grantees were no
longer required to give up their First Amendment right to use their
non-U.S. government resources to work with all persons in need of their
care, to speak out against injustice and to engage in research and to
debate all of the causes and consequences of trafficking, including an
exploration of the possible impact of legalization, as well as the
criminalization, of prostitution on trafficking.
A second manifestation of the anti-prostitution campaign
encroachment upon anti-trafficking work is a section of the 2005
Trafficking Victims Protection Reauthorization Act \6\ that focuses
resources on non-trafficking anti-prostitution activities. We are
concerned that these provisions could be used to divert federal
funding, investigators and prosecutors to concentrate on non-
trafficking prostitution cases. As mentioned previously, the definition
of trafficking requires the use of force, fraud or coercion except in
cases involving minors caused to engage in `commercial sex acts.'
Trafficking falls under the 13th Amendment prohibition of slavery and
involuntary servitude, all of which negate the free will of the
individual and constitute grievous human rights abuses. The law covers
all trafficking of persons in the United States into homes, brothels,
factories, streets and farms. It also covers trafficking of foreign
nationals and U.S. citizens and trafficking into and within the United
States. It does not cover prostitution (or farm work, domestic work or
factory work) unless the above conditions are met.
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\6\ Sections 201-207.
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However, the 2005 Reauthorization Act lays the groundwork for
federal investigator and prosecutor involvement in non-trafficking
prostitution cases as well as diverting trafficking funding to non-
trafficking prostitution cases. It calls for research on ``sex
trafficking,'' which includes prostitution as well as trafficking into
prostitution.\7\ It also establishes a grant program for state and
local law enforcement to carry out anti-prostitution activities. We are
concerned that this law could divert scarce and badly-needed anti-
trafficking resources to non-trafficking prostitution activities.
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\7\ Sex trafficking ``means the recruitment, harboring,
transportation, provision, or obtaining of a person for the purpose of
a commercial sex act.'' 22 USC 7102(9).
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We do believe there is a large role for the federal government to
play in addressing the harms of prostitution and the causes leading
youth and adults to enter into prostitution in the first place and
preventing them from exiting. Too little is done and too little
compassion is evident in our society's current zeal to lock up sex
workers and its willingness to ignore the plight of these vulnerable
and marginalized members of our society. The federal government could
provide much-needed compassionate and supportive funding for treatment,
services and prevention programs. However, the funds for such work
should not reduce the resources or the investigatorial or prosecutorial
manpower needed to find and prosecute trafficking enslavers and to
protect their victims.
Shifting money and federal staff to non-trafficking prostitution
activities would be a bad outcome on several counts. First and most
importantly, such a focus could undermine and weaken the ability of the
newly-created and highly-specialized Justice Department Trafficking
Unit and the 32 plus specialized trafficking task forces \8\ to carry
out their mandates. The task forces are elite units of experts whose
job is to prosecute 13th Amendment violations involving enslavement of
extremely vulnerable people on U.S. soil. Without adequate dedicated
resources for slavery, trafficking and forced labor cases, it would be
highly likely that children like the girl held in involuntary servitude
in Orange County and forced laborers like the 275 workers held in
American Samoa would not be rescued and their traffickers would not be
prosecuted as resources would be focused on prostitution-related
crimes. Traffickers would be free to operate with impunity.
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\8\ Established by the Departments of Justice, Health and Human
Services, Homeland Security, Labor and State, as well as NGOs.
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Second, although earning money off of prostitution is a crime in
most of the United States, it is not a violation of the 13th Amendment
unless trafficking, slavery, involuntary servitude or forced labor is
involved. Federal resources must continue to be deployed to stop the
`worst of the worst' predators--the trafficking enslavers. Third,
prostitution is, in the majority of cases, a state-level offence, and
tens of thousands of pimps, brothel owners and clients are prosecuted
by local jurisdictions each year. Federal law enforcement intervention
simply is not warranted without a request from local officials and
federal resources would simply be wasted in duplicating the efforts of
local law enforcement officials. Fourth, prostitution cases that could
be handled by state courts would clog federal courts. Fifth,
prosecutors would have to find a federal link to the crime, which is
not necessary at the state level, certainly making it more difficult to
achieve federal convictions.
It is important to ensure that resources--financial and otherwise--
for trafficking are adequate and not shifted in any way for non-
trafficking prostitution cases. If members of Congress wish to fight
13th Amendment crimes as well as seek solutions to the problem of
prostitution, then it has the power to authorize separate resources for
both. Funding for trafficking and anti-prostitution investigations,
prosecutions and services and support should be kept separate and
trafficking funds should not be considered fungible resources for
combating prostitution.
2. The 2000 VTVPA does not fully take into account the special
needs of trafficked children.\9\
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\9\ I would like to thank Melanie Orhant at Break the Chain
Campaign for contributing extensively to this section.
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The needs and special circumstances of children \10\ were not
sufficiently considered in drafting the 2000 TVPA. Although the 2003
and 2005 Reauthorization bills contained some provisions for trafficked
children, systematic solutions must be enacted to address the numerous
issues that service providers, attorneys and trafficked children
confront when they negotiate the legal system. Among the many concerns
of service providers discussed below, the first issue is the most in
need of urgent attention.
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\10\ For the purposes of this paper, the children are non-U.S.
citizens or Legal Permanent Residents.
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Unaccompanied children are languishing in inappropriate housing and
HHS should be empowered to transfer them quickly into the Unaccompanied
Refugee Minors program. Congress recognized that minor victims of a
severe form of trafficking should not be compelled to speak with law
enforcement in order to receive visas, protections and services and so
minor victims do not need the T visa requirement to ``comply with a
reasonable request of law enforcement.'' Accompanied minors, who live
with family members or guardians, are able receive a T visa and
benefits without having to speak with law enforcement. Once they obtain
their T visa, the Office of Refugee and Resettlement (ORR) issues a
Letter of Eligibility that enables them to receive benefits on par with
refugees.
However, unaccompanied children are not so lucky. They have no
guardian or parent or any supervised living situation and so they need
long-term placement and care in the Unaccompanied Refugee Minors (URM)
program.\11\ Children who are detained by Immigration are placed in the
Division of Unaccompanied Children Services (DUCS) program, which is
funded and monitored by ORR. Trafficked children in the temporary DUCS
detention and other unaccompanied trafficked minors need to be moved
into the long-term URM foster care program.
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\11\ Funded and monitored by ORR and administered by Lutheran
Immigration and Refugee Service (LIRS) and U.S. Conference of Catholic
Bishops (USCCB).
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In order to get into the URM program, ORR must issue a Letter of
Eligibility for the child. According to the Interagency Memorandum of
Understanding between the Departments of Health and Human Services,
Homeland Security and Justice signed in 2004, minors will receive a
Letter of Eligibility only after Justice or Homeland Security
determines that the minor ``has been subjected to a severe form of
trafficking in persons.'' \12\ The determination is made after an
interview by Justice or Homeland Security with the unaccompanied child,
which effectively negates the protections Congress included in the 2000
TVPA to protect minors from the stress of such interviews.
Unaccompanied minors are forced to meet the same requirement as adults
to cooperate with law enforcement.
---------------------------------------------------------------------------
\12\ See attached Memorandum of Understanding.
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Unaccompanied minors who are unwilling to speak with law
enforcement are pushed into a legal limbo in which they can either try
to fend for themselves or being held as a `material witness' and being
forced to testify. In some cases, it could result in the child being
faced with possible deportation.
Example: A trafficked child was placed in removal
proceedings and sent to the DUCS program. Her attorney
informed her of her options--to speak with law
enforcement or forego services--and she decided not to
talk to law enforcement. As a result, she was sent back
to her home country where she had nobody to take care
of her and had no social support.
Despite the fact that a large percentage of trafficking victims are
children, only 34 letters granting eligibility for benefits to child
trafficking victims were issued in FY2005, partly due to this mandatory
requirement for minors to cooperate with law enforcement. This entire
process and this result runs contrary to the intent of Congress.
Members of Congress have called upon HHS to rescind the practice of
requiring children to cooperate with law enforcement in order to
receive letters of eligibility.\13\ ``By providing benefits and
services to child victims as soon as they are identified, HHS will be
in the best position to protect children and provide a safe and stable
environment. Whether a child ultimately decides to serve as a witness
in the prosecution of his traffickers is a decision the child can make
after his situation has been stabilized.'' The response of Michael O.
Leavitt, Director of HHS, was failed to address Members' concerns and
simply reiterated existing policy to refer to Justice and Homeland
Security.\14\ He also stated ``that HHS will [not] accept unreasonable
delays in the enrollment of the juvenile or that the juvenile. . .''
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\13\ See attached letter to Secretary O. Leavitt, U.S. Department
of Health and Human Services dated July 26, 2005 from Senator Sam
Brownback, Congressman Frank R. Wolf, Congressman Joseph H. Pitts,
Congressman Christopher H. Smith, and Congressman Tom Lantos.
\14\ See attached letter of Michael O. Leavitt dated September 23,
2005.
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From the child's perspective, what is a ``reasonable'' delay when
it comes to living in an unstable situation, living in a DUCS facility,
not receiving treatment for the serious trauma of trafficking and not
receiving dental or medical care? Is it reasonable for a child to wait
a day? a week? two months?
Example: An unaccompanied child is a victim of horrible
case of trafficking in which she was beaten, abused,
denied access to medical care, school, sleep and food
and generally treated like a slave. Her attorney
submits information to Justice and, after making
numerous phone calls, an interview is finally arranged
a month later. In the meantime, the child is living in
very precarious living arrangements, in the basement of
a house, is not attending school, has very little
money, and is not being looked after by a responsible
adult. Several weeks later, Justice finally tells ORR
to issue a Letter of Eligibility, which allows the girl
to enter the URM program. Ironically, officials treated
this as a ``fast'' case because the child was on the
verge of ``aging'' out, meaning she was going to turn
18 soon and be ineligible for the URM program. Given
the conditions under which this child was living,
almost two months is certainly not `fast'.
Furthermore, HHS claims it does not allow Justice or Homeland
Security to veto cases, but a veto is unnecessary since HHS relies upon
the decision of Justice or Homeland Security. Thus, each time neither
agency interviews an unaccompanied minor, they are `vetoing' the case
and each time they delay an interview, they are at least temporarily
`vetoing' a case. This result is not and was not the intent of
Congress. Unless Congress steps in, minor victims of trafficking will
continue to be denied their right to a safe living environment and
immediate assistance.
An easy solution to the anomalous status of trafficked minors would
be to empower HHS with exclusive authority and responsibility to make
prompt determinations that a child is a victim of a severe form of
trafficking. HHS would then be able to move children swiftly into the
URM program where they can receive necessary emergency assistance such
as medical care, relocation, family reunification, and mental health
care.
One proposed solution for members to consider is contained in HR
270, which was introduced by Congressmen Smith and Wolf, in which they
propose that HHS is to have exclusive jurisdiction for determining
whether or not a child is a victim of trafficking.\15\
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\15\ Amending 22 U.S.C. 7105(b)(1) by adding: (i) DETERMINATION--
With respect to a person referred to in subparagraph (C)(ii)(I) who is
seeking assistance under this paragraph, if credible evidence is
presented on behalf of the person that the person has been subjected to
an act or practice described in section 103(8), the Secretary of Health
and Human Services shall promptly make a determination of the person's
eligibility for assistance under this paragraph.
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Trafficked children should not be interrogated unless and until
they are assessed to be stable and competent. Trafficked children are
often picked up in raids and immediately interrogated by law
enforcement officials who have no understanding of the fragile state of
the trafficked child. Congress has determined that trafficked children
should be spared the trauma of working with law enforcement in order to
receive immigration relief and services. Similarly, children who have
been psychologically and physically abused, even raped, should not be
interrogated unless the Department of Health and Human Services has
made an independent finding based upon an expert opinion that the
child's mental and physical health is stable and that the child is
competent and capable to participate as a witness in such efforts.
Once minor children are identified as victims, their derivatives
(family members) should receive parole, humanitarian assistance, or
continued presence derivative status, whichever is appropriate. Under
current law, parents, unmarried siblings under 18, spouse and children
of a T visa holder under 21 (when filing the T visa application) may
apply for a derivative T visa. However, many children do not receive a
T visa for years and so they are separated from their family members
for long periods of time, while they undergo very stressful
circumstances, particularly if they are involved in an ongoing criminal
litigation. Many children are forced to choose between returning home
to be reunited with family members or pursuing criminal and civil
sanctions against their traffickers. This is not a choice that a child
should have to make.
Family members are also often at risk of violence from the
traffickers back home. The trafficking law requires the government to
``protect trafficked persons and their family members from intimidation
and threats of reprisals and reprisals from traffickers and their
associates.'' \16\
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\16\ 22 USC 7105(c)(3)
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Example #1: The parents of an unaccompanied child in
the URM program want to come to the U.S. because the
organized criminal group that trafficked the child to
the U.S. has threatened them in phone calls and visits
warning them that their child should not testify.
Example #2: An unaccompanied child was picked up in a
raid and has been working with law enforcement. She has
been diagnosed a severe illness. The trafficker is
threatening the child to harm her mother if she doesn't
pay off the debt. Additionally, the mother and brother
are being directly threatened in the home country. This
child's mother and eligible siblings should be allowed
into the country prior to her T visa being approved.
Victims are much more able to recover from their experiences and to
participate in investigations and prosecutions with the active support
of their families and in the knowledge that their family members are
safe from these types of threats, which are often acted upon to silence
a witness.
Interviews with children in the DUCS program should be maintained
in confidence by ORR. According to Amnesty International 5,385 minors
were in immigration custody in 2001 \17\ and Lutheran Immigration
Refugee Services reports that more than 7,000 undocumented children are
presently in immigration custody.\18\ Under the TVPA, victims of a
severe form of trafficking who are in federal custody shall not, to the
extent possible, be detained in facilities inappropriate to their
status as crime victims. It follows, then, that trafficked children
should be identified as such and then placed in a suitable facility.
---------------------------------------------------------------------------
\17\ ``Why am I here? Children in Immigration Detention,'' Amnesty
International, http://www.amnestyusa.org/refugee/pdfs/
children_detention.pdf
\18\ The Division of Unaccompanied Children's Services (DUCS),
http://www.lirs.org/InfoRes/faq/DUCS.html
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Currently, there is no requirement that children entering the DUCS
program be screened for trafficking. Nonetheless, the DUCS program is
conducting a trafficking screening and, if a potential trafficking case
is identified, these children are being referred for an in-depth intake
called the ``Trafficking Addendum.'' We applaud the DUCS program for
this screening but are concerned with the use of the collected
information. The Trafficking Addenda are submitted to ORR, which turns
them over to Homeland Security. By turning over the Addenda to Homeland
Security, ORR is violating the right of children not submit to an
interview with law enforcement. In essence, the DUCS interview becomes
a law enforcement interview that is carried out without the child's
knowledge or consent, the presence of an attorney, a guardian ad litum,
or even a basic understanding of how the information was to be used.
Children should be screened in the DUCS program as potential
trafficking victims without having to submit to a de facto law
enforcement interview. However, Homeland Security, with the
participation and acquiescence of ORR, cannot be allowed to make an end
run around the clear intent of Congress to protect children from being
retraumatized and revictimized interviewing them without their
permission, since the interview could lead to the forced participation
of the child in a criminal case.
We call on Congress to correct this situation and ensure that the
information collected is kept confidential and not turned over to law
enforcement.
3. Victims and their family members need a quicker means to obtain
immigration relief.\19\
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\19\ I would like to thank Melynda Barnhart, Director, Anti-
Trafficking Initiatives, International Rescue Committee for
contributing extensively to this section.
---------------------------------------------------------------------------
The process for granting Continued Presence immigration relief is
exceedingly slow and harmful to victim recovery. Continued Presence
(CP) provides temporary non-immigrant status and allows holders to
receive an Employment Authorization Document (EAD) and access to
refugee benefits. It is a quick way to solve a trafficked person's
immigration issue until a T visa is eventually granted (or denied).
Federal law enforcement officials may apply for CP but CP requests are
processed by Immigration and Custom Enforcement (ICE). In the past, ICE
was able to process these applications quickly. However, in the last
year, victims of trafficking and law enforcement have been facing
delays in the processing of CP applications by ICE. Delays with ICE
have caused victims of trafficking to wait months for CP.
Delays by ICE cause trafficked persons numerous problems. The most
egregious is the months the individual must live without an EAD, legal
immigration status and access to benefits. Even when victims have come
forward to work with law enforcement, CP is often, for whatever reason,
delayed for an unreasonable amount of time. When trafficking victims
have to wait months with no immigration relief or ability to work in
sight, some decide to disappear and abandon the investigation, because
they believe they will be better off working illegally than remaining
indefinitely in legal limbo without the ability to support themselves
and often their families back home.
Without CP and an EAD, victims are unable to rebuild their lives.
They are unable to work, lack access to medical care, are separated
from their family members for long periods of time, and live in
increased fear for themselves and their family members back in the home
country, to name just a few of the problems endured by victims without
CP.\20\ This immigration benefit was intended to be a quick solution to
keep victims of trafficking temporarily safe in the US while they
worked with law enforcement to investigate and prosecute their
traffickers. Trafficking victims should not have to wait months for
temporary revocable immigration relief.
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\20\ A related issue we would like to highlight is the need for
increased funding for ICE to pursue trafficking investigations.
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Thus, we believe that CP should be mandatory if law enforcement
opens a trafficking or related case. If evidence shows that it is
highly likely a person has been trafficked, and even if a lesser crime
is eventually charged, CP should be mandatory and applications for CP
should be processed within 30 days.
CP derivative status should be granted immediately to family
members of trafficking victims who are in the U.S. Derivatives in the
United States currently do not have access to parole or work
authorization based on a grant of CP to the potential victim-witness.
CP derivative status is not available and so family members in the U.S.
can be out of status until they receive a derivative T visa, possibly
years after the victim receives CP. As a result, family members are
unprotected from removal and could be separated from their children,
including trafficked children. They do not have access to a work-permit
or public benefits until a T Visa has been filed and derivative status
has been granted.
In many states, derivatives without proof of an immigration status
are unable to obtain a driver's license or state issued identification.
Moreover, if it is necessary to relocate the victim and his/her family
members because of safety concerns, then all family members need some
form of valid and current identification to travel. In many cases,
victims are not able to obtain employment immediately or for many
months after captivity because of physical and psychological trauma or
because they are minors.. With CP, family members in the country could
provide much-needed financial support to the victim until she or he is
able to enter the workforce.
Family members of CP recipients should be paroled into the U.S.
under a derivative status. The risk of harm to family members is always
present in the victim-witness' mind. In order to ease the victim's
concerns and facilitate collaboration, family members outside of the
United States should be paroled under CP derivative status immediately
upon the issuance of CP to the victim. Not only does this guarantee
that family members are secure, as required by 22 USC 7105(c)(3), but
also provides family support for victims, especially those who are
minors. An exception should be carved out to ensure that family members
who were involved in the trafficking scheme are not paroled in just as
they are not admissible or eligible to obtain a T-visa.
Thank you, Madam Chair, for allowing me this opportunity to speak.
I would be happy to answer any questions you or members of the
Committee may have.
Ms. Sanchez. Thank you, Ms. Jordan.
And now we will hear for 5 minutes or less from Mr. Cerda.
STATEMENT OF VICTOR CERDA, PARTNER, SIFF & CERDA LLP
Mr. Cerda. Good afternoon, Madam Chair. It is my privilege
to appear before you as your committee evaluates our
immigration system.
I would like to highlight some observations from my
experience at ICE on efforts to combat human trafficking
organizations that prey on vulnerable migrant populations.
Today, human trafficking has emerged as a lucrative global
criminal industry that harms not only the victims themselves,
but also the communities in the United States that must deal
with these ruthless and often violent organizations. Clearly,
ICE must continue its efforts to identify, criminally
investigate, and ultimately dismantle trafficking rings. These
efforts should be done with the same strength and focus DHS has
placed on securing our borders.
It should be understood that DHS's emphasis on border
security is not exclusive of combating human trafficking, and
does not occur at the expense of trafficking investigations. As
you may know, many trafficking organizations exploit
vulnerabilities at our borders and in our immigration system to
transport their victims, including women and children, into the
U.S. for exploitation and profit. In fact, increased border
security may actually help to decrease the incidence of
trafficking, and increase our ability to capture these
criminals.
Further, intelligence and information obtained from
apprehended individuals may spur investigations into
trafficking operations. Ultimately, enhanced border security
will deter trafficking and prevent further victimization.
Combining our nation's immigration investigative expertise with
customs authorities and capabilities through the creation of
ICE in 2003, created not only an enhanced ability to dismantle
trafficking organizations with criminal and civil charges, but
also the ability to attack their financial resources through
asset forfeiture.
Where trafficking cases under the Legacy INS would go cold
and result solely in a civil immigration violation, the newly
blended expertise in tracking assets across the world has
proven an invaluable weapon to continue and expand
investigations into trafficking organizations.
Another example of ICE's enhanced capabilities is the use
of Civil Asset Forfeiture Reform Act notices, an authority not
utilized in Legacy INS. With this authority, ICE investigators
can now attack trafficking organizations by identifying the
assets of those that blindly or willfully permit their
properties to be used by trafficking organizations to exploit
their victims for profit.
More importantly, these new capabilities have led ICE to
other trafficking victims. Recent successful ICE trafficking
investigations in New York City and Florida demonstrate these
positive advances. While ICE utilizes its federal authorities
in this mission, coordination and cooperation with state and
local entities, as well as NGOs, has proven extremely
beneficial. In fact, such coordination is almost essential for
continued future success.
For example, arrests that could have been treated as an
isolated incident of prostitution have resulted in the
identification of large national trafficking organizations as a
result of cooperation between ICE and state or local
authorities. The nature of trafficking and trafficking rings
demand such cooperation in order to be truly effective against
these organizations.
I point out that this reality flies in the face of blanket
policies by some state and local governments prohibiting their
law enforcement agencies from partnering with ICE. Hopefully,
the goal of combating traffickers will encourage the
dismantling of such barriers in the interest of more effective
enforcement.
Congress is supporting highlighting the importance of this
issue by appropriating additional anti-trafficking resources.
Ensuring implementation of the Trafficking Victims Protection
Act of 2000 has also been critical. Additional support to
federal, state and local anti-trafficking efforts, including
NGO support, are critically important as a means to effectively
address this issue.
In conclusion, I applaud this committee's effort to review
and enhance our immigration processes. To say the least, it is
a challenging task at hand. This hearing and last week's
important hearing on detention issues will hopefully assist in
this task. My written testimony includes additional thoughts on
the role of detention in immigration.
Regardless of the challenge, change is needed to help
improve the system so that our nation's immigration system
actually ensures our national security, while preserving our
rich tradition as a nation of immigrants. Hopefully,
legislative efforts will be taken to this effect soon.
Thank you again for the opportunity to appear before you
today. I would be pleased to answer any questions.
[The statement of Mr. Cerda follows:]
Prepared Statement of Victor X. Cerda
March 20, 2007
Good afternoon, Madame Chair, Ranking Member Souder, and
distinguished Members of the Subcommittee. It is my privilege to appear
before you to discuss the critical role of detention in our Nation's
immigration policy, particularly as it pertains to human trafficking.
My name is Victor X. Cerda, and I am a founding partner of the law firm
Siff & Cerda LLP in Washington with a practice focused on immigration
law and homeland security. Prior to this, I served for 10-years with
the legacy Immigration and Naturalization Service and the recently
created U.S. Immigration and Customs Enforcement (ICE), holding various
titles including Chief of Staff and General Counsel. Prior to my
departure in 2005, I was the Acting Director of Detention and Removal
Operations (DRO).
First, I would like to acknowledge the efforts of the men and women
of ICE DRO who I personally believe have the most challenging mission
in immigration. They are responsible for the apprehension, detention,
and physical removal of individuals ordered deported. They must be
effective in their mission in order to support our national security,
protect the community from criminal aliens, and maintain the integrity
of our immigration system. They are the funnel point for almost all of
the removal cases in our immigration system, and are responsible for
concluding the proceedings in instances where a removal order is
issued. At the same time, recognizing our rich tradition as a Nation of
immigrants, they must perform their duties in a manner that recognizes
the importance of treating those in their care in a humane manner. It
was a privilege and a learning experience to have worked with them
during my government career.
I would like to share my perspective on why I believe detention is
a critical and necessary factor in our Nation's attempt to enhance our
immigration processes. Before explaining the underpinnings of these
thoughts, I would like to highlight a case that exemplifies in my
opinion the complexity of the challenge we face in evaluating our
immigration system and the role of detention for immigration purposes.
In 2004, a sympathetic story on the detention of a Buddhist ``nun''
fleeing persecution from China was prominently displayed on the front
page of the Washington Post. Understandably, the story caused a
significant outcry from the public and some members of Congress. Adding
to the concerns was the fact that she had been granted asylum by a
judge, a decision that was under appeal by ICE while the ``nun''
remained in custody. Ultimately, ICE decided that she should be
released while the appeal was pending, as the immigration judge had
made a credibility finding on her identity and her claim of
persecution. At the same time, an ICE investigation was ongoing
regarding her claim and identity. After her release, ICE's
investigation determined that her claim was completely fraudulent and
that she was not in fact a nun. She was arrested and charged with fraud
and eventually pled guilty in district court, admitting she was not a
nun. The issues of this case reflect those seen in hundreds of
immigration cases in the country each day. Unfortunately, immigration
issues and cases do not always lend themselves to a black and white
distinction, despite prominent articles in the press.
The Need for Detention in the Immigration Process:
Fortunately, the case of the purported nun did not involve a
national security threat. It did however highlight the national
security vulnerabilities and issues of fraud in our immigration system,
in this instance our asylum system. Unfortunately, we as a Nation have
witnessed the potential deadly consequences of these vulnerabilities as
they were exploited by individuals seeking to harm our Nation. Indeed,
we should not forget the fact that 9/11 did not mark the first time the
Twin Towers were subject to a terrorist attack. It was two asylum
seekers who were released while their claims were pending--Ramzi Yousef
and Sheik Rahman--who successfully carried out an attack on the World
Trade Center in February 1993. Other past examples of terrorists
exploiting vulnerabilities in our immigration system include Aimal
Kasi's killing of CIA employees outside of Langley in 1993 and Abu
Mezer's almost successful plot to bomb New York City subways in 1997--
both had claimed asylum in the U.S. These costly lessons serve as a
strong argument on the important role detention plays in the
immigration context, even with respect to asylum seekers.
In addition to national security concerns, the need for detention
is clearly spelled out in our abysmal 85-90% absconder rate that our
immigration system experiences. These numbers make clear that the
``honor system'' that we heavily relied upon in the past did not work.
As a result, we face a fugitive alien population of over 500,000
individuals that without drastic change in our strategy will continue
to mushroom at a rate of over 40,000 new fugitives per year. We can all
confidently conclude that something has gone awry. Detention has been
the only proven guarantee for compliance with detention orders.
Properly, ICE is aggressively exploring alternatives to detention
in hopes of identifying a medium ground aside from outright release or
detention that actually is effective in addressing the lack of respect
for judicial hearings and orders of removal. Initial results appear
positive and perhaps some will become more permanent mechanisms for
addressing bona fide asylum seekers and victims of trafficking.
However, the fact that our current laws treat fugitives who willfully
disregard an order of removal the same as an individual who does in
fact comply with a removal order may prove the undoing of any
alternative to detention aimed at enhancing compliance with removal
orders. It will be interesting to see the effects of these alternatives
on compliance with removal orders. In the meantime, however, it is
difficult to fault ICE's reliance on detention in its attempts to gain
control over our borders and to enhance the integrity of our
immigration system. Catch and return is a positive step forward in this
goal.
The Need for Detention Standards and Their Effective Implementation:
While detention in my opinion is a necessary tool under the current
statutes and immigration processes, there is still the need to treat
all detainees with respect and dignity. That need is even more
pronounced in the context of dealing with families, children, and
trafficking victims. The detention standards that were initially
established in collaboration with the American Bar Association in 2001
play a key role in ensuring that ICE's detainees receive proper
treatment and are afforded sufficient access and tools to exercise
their immigration rights. Theses 38 standards establish the conditions
that are to apply nationally to all ICE detainees. These are
supplemented by additional criteria that ICE establishes and that must
be met before a facility or contractor is permitted to house ICE
detainees. The promulgation of these standards was an achievement;
however, implementation of these standards is an equally important
mission that ICE must continually meet. Aside from DRO reviews,
multiple levels of potential external agency review, ranging from the
ABA, the United Nations, ICE Office of Professional Responsibility
(OPR), DHS' Office of Civil Liberties and Civil Rights, DHS' Office of
the Inspector General (OIG), and the General Accounting Office ensure
compliance with detention standards and civil rights laws. All of these
entities have authority to tour or audit these facilities and most have
exercised this authority. The process is very open to review and has
been for some time. Facilities housing ICE detainees undergo at least
one yearly review for compliance, and allegations of mistreatment are
referred to ICE OPR and the DHS OIG for investigation. Where standards
are not being followed, action should be taken immediately to correct
these deficiencies, and absent progress, the facilities should no
longer be used. Similarly, DRO officers and contractors should be
trained sufficiently on the standards and should be held to the highest
standards when caring for detainees.
The unique factor surrounding families, children, and trafficking
victims require additional care and consideration than the general
population. Efforts to create family friendly environments should be
pursued, as well as viable alternatives to detention that meet both the
individual's and the government's needs. Training and efforts should be
undertaken to ensure that the unique needs of this population are in
fact recognized and understood by both ICE and its contractors.
Intelligence and questioning should be utilized to identify genuine
trafficking cases as well as genuine asylum seekers. That being said, I
would have to express my disagreement with any view that would
eliminate any type of detention for such populations.
The Need to Deter Life Threatening Border Crossings:
Aside from my previously noted concerns regarding fraudulent
immigration claims, protecting and deterring life-threatening border
crossings by families is a factor supporting DHS' family detention
strategy. DHS, in its efforts to control the border, faces
sophisticated criminal smuggling organizations that will take any steps
necessary to ensure their financial livelihood. Smugglers do not view
their ``clients'' as human beings, but rather perceive them as
potential profit if they succeed in not only getting them across the
border, but doing so in a manner that does not lead to their detention.
Smuggling organizations will adapt their strategies based on DHS'
initiatives to secure our borders. In this light, the implementation of
the Catch and Return policy posed a new DHS tactic that threatened
smuggling organization's financial interests. As anticipated, these
organizations evaluated all remaining options for successful smuggling.
One of the initial loopholes identified by smuggling gangs involved the
use of children and family units to avoid detention given DHS' past
policy favoring release of families and adults with children, even
after the expansion of expedited removal. As a result, there was an
increase in the use of ``rented'' children and organizations encouraged
individuals to bring their family on the treacherous journey across the
border, often through desert environments that pose a grave challenge
to young male adults, let alone children.
When evaluating and considering the issue of children and families,
the concept of deterrence must be considered. In light of smuggling
organizations using children as decoys and encouraging individuals to
bring their spouse and children on the treacherous border crossing, it
is essential to deter these strategies in hopes of preventing harm and
death to vulnerable individuals. DHS has no other recourse but to take
the strongest tactic to discourage this practice and in all likelihood
save the lives of numerous family members and minor children. To take
any other approach in the interest of families that may be perceived by
the smuggling organizations or desperate economic migrants as a
``loophole'' similar to the failed Catch and Release policy, may in
fact induce deadly consequences. While it is understandable to question
the policy and the conditions of confinement, I believe it is equally
important to view the overall goal of deterring dangerous risks and
avoiding the unnecessary loss of life.
Victims of Trafficking:
While trafficking was not an area directly under my operational
control while at ICE, I would like to take a moment to highlight some
observations from my ICE experience on the human trafficking situation
and organizations that prey on populations. ICE must continue to focus
on identifying, criminally prosecuting and dismantling trafficking
rings with the same strength and focus aimed at deterring smugglers
from risking families in dangerous border crossings. It should be
understood that DHS' emphasis on border security does not come at the
expense of trafficking investigations, as most trafficking
organizations have exploited vulnerabilities in our porous border and
our immigration system to move vulnerable populations including women
and children into the U.S. for exploitation and profit. Trafficking of
vulnerable populations has emerged as a lucrative global criminal
industry and threatens not only the victims being trafficked, but also
the communities in the United States that must deal with these ruthless
and often violent organizations. I believe advances have been made in
successfully dismantling these criminal organizations since ICE's
inception. ICE's capabilities not only to criminally charge such
organizations but also to attack their financial resources through
asset forfeiture have been a positive result of the merging of customs
and immigration expertise. Whereas immigration cases before would go
``cold'' and be treated as a minor immigration ring, the legacy
custom's capabilities in tracking assets and property across the Nation
and internationally has proven a new invaluable tool against
trafficking organizations. Congress has supported these efforts with
resources and any support to continue and enhance these new techniques
both at ICE and in the state and local community should continue.
While ICE utilizes its federal authorities in this mission,
coordination and cooperation with state and local entities has proven
extremely beneficial in the past. In fact, such coordination is almost
essential. For example, simple arrests and investigations that may have
initially been perceived as a local isolated incident involving a
brothel have as a result of ICE and state or local taskforces resulted
in the identification and dismantling of national and international
trafficking organizations. Clearly, within the goal of border security
and control, the identification and elimination of such organizations
should remain a priority within ICE.
Finally, similar to the context of dealing with families, efforts
should be made to recognize the circumstances of genuine victims of
trafficking and accommodations in the handling of their cases should be
made, to include consideration of any benefits they may be entitled to,
considerations on their housing or custody status, and consideration to
their safety and protection from elements of the trafficking
organizations that have preyed on them before. I believe the
sensitivity involving victims of trafficking is understood at ICE and
that efforts are made to address the unique needs of this population as
any investigation or prosecution progresses.
Considerations Aside from Detention:
While I perceive the use of detention as a necessary factor in our
immigration system, I will close by highlighting other areas that
should be considered. First, we should recognize that despite the
challenge DHS faces in securing our borders, it does exercise
prosecutorial discretion in the detention context numerous times every
day across the country, particularly with respect to investigations
involving victims of trafficking. The system in certain contexts
affords this flexibility and it should continue to be used when
appropriate. Second, we should continue to explore alternatives to
detention in an attempt to identify a solution that objectively serves
both the individual's interests and the government's interest in
ensuring integrity in our immigration system. Finally, as you explore
ways to reform the process, we may benefit by exploring the question of
why it takes our Nation months if not years to come to a ``yes'' or
``no'' answer on whether an individual or family under our laws should
be permitted to remain in our country or be deported? While detention
may be necessary in many cases, the length of detention which is often
determined by the legal and judicial processes is something that we
control. Similarly, genuine victims of trafficking should be able to
have their claims for benefits as such victims reviewed and adjudicated
properly and efficiently. Judicial and attorney resources to eliminate
backlogged court dockets and prolonged periods of judicial review are
factors that should be considered in the scheme of comprehensive
immigration reform. Adjudication resources should be committed to those
seeking benefits as victims of trafficking. A prolonged and delayed
process, caused by the currently overwhelmed judicial and legal systems
does not benefit the genuine asylum seeker, victim of trafficking or
the government. If detention is required, shortening any decision
making process would decrease the burden on the government and benefit
individuals as they exercise their rights under our immigration laws.
Conclusion:
In conclusion, I applaud this Committee's effort to review our
immigration processes and attempt to address the numerous flaws in our
immigration system that we as a Nation have witnessed since the last
major attempt to reform our immigration laws. To say the least, it is a
challenging task at hand. Regardless, change is needed to help improve
the system so that our Nation's immigration laws and processes actually
ensure our national security while preserving our rich tradition as a
Nation of immigrants. Hopefully legislative efforts will be taken to
this effect soon. Thank you again for the opportunity to appear before
you today, and I would be pleased to answer any questions you may have.
Ms. Sanchez. Thank you, Mr. Cerda.
And again, thank you to all of you.
I would like to ask all of you some questions, and I would
like to begin with Lieutenant Marsh.
Lieutenant Marsh, as you know, we have a large Asian
population in particular in Orange County these days. I know
the City of Westminster is very blessed to have a large
Vietnamese population there. I had a friend of mine recently
tell me that he lives in a particular city, not yours, in
Orange County, and across the way he had a Vietnamese family
that he was friends with.
This gentleman had a young daughter, 16, and he said one
day a leader of an Asian gang came and took his daughter and
kept her for 2 years as a sex slave not too far away, and
threatened the daughter that if she left the bed, basically,
that the whole family would be killed.
This lasted for a couple of years, and then finally this
young lady was returned to her home. The whole neighborhood
knew this. My friend knew this. Everybody knew this was going
on, but they were so afraid of the retaliation by this
particular Asian gang that nobody said anything and never
brought it up to local law enforcement or anybody else. They
let it happen.
Why is that? Are we so out of control that really our law
enforcement can't take care of these types of gangs and things
going on?
Lieutenant Marsh. I would hope not. We have taken a lot of
efforts at the Westminster Police Department to outreach to our
Vietnamese community, which is approximately 37 percent of our
population. It is distressing to hear of a situation like that,
and that a neighborhood would know and they wouldn't feel
comfortable coming to the police.
Ms. Sanchez. And this was a mixed neighborhood. It was
Anglo, it was Hispanic, it was Asian. The whole block knew,
grown people.
Lieutenant Marsh. I don't know how to respond other than I
would hope that they would feel comfortable talking to somebody
from law enforcement.
Like I said, with Westminster Police Department, we go out
and do active community involvement activities with them, both
at the Vietnamese, Hispanic and English-speaking communities. I
am glad to hear it wasn't in Westminster, number one.
But if you are going to ask me ``does it happen,'' it
probably does, but we do everything within our power, or if we
had a remote hint of something like that, we would be all over
it. That is a technical term.
Ms. Sanchez. ``All over it''?
Lieutenant Marsh. All over it. Yes.
[Laughter.]
Ms. Sanchez. Talk to me about the collaboration that you
have seen with ICE and the FBI, especially since you put
together this task force. I know that you all have been part of
leading this effort in Central Orange County.
Is it working? What else do you need in order to do a
better job of getting information and getting backup and
everything when you are doing the legwork that it takes to find
these in-flight people?
Lieutenant Marsh. Well, I will say that our work with ICE
and FBI has proven very beneficial. I think that they are
following their federal mandates. They are compassionate and
dedicated to pursue these investigations. I think there are
threshold issues regarding what constitutes human trafficking
and what does not. That sometimes gets in the way of pursuing
cases more actively, and to pursue them beyond just the point
of the initial arrests.
If I were to say, again back to what I have written before,
the first thing I would say is that we need to have a better at
least understanding of the law, or a better definition of
``trafficking'' so we can pursue more psychological force,
fraud and coercion over the more severe physical abuse forms,
though of course those do exist as well.
Ms. Sanchez. I think you said this. I just want to get a
clarification that sometimes it takes a lot to get these cases
done. It takes a lot of local law enforcement work, and then
the prosecutors don't prosecute because the laws are not
written, or because maybe there was no physical torture or
something of the sort.
How does that make you feel? And sometimes when you come up
to that, do you just say, well, we are just not going to do it
because we know we are not going to get a prosecution on this?
Lieutenant Marsh. We don't investigate towards prosecution.
Whether it is pimping or pandering, whatever, we are going to
take care of business. We are going to get these victims out of
that situation.
We have had victims that were being prostituted that
actually qualified for federal aid as trafficking victims, even
though the people who were the brothel owners or traffickers
were only considered pimps at that point. The end result
doesn't matter to us as far as whether they support it.
Is it frustrating? Absolutely. Do I think that we could do
a much better job and leverage both local and federal
resources, both personnel and financial and surveillance and
all kinds of other resources? Absolutely. But we are still
going to go out there and address prostitution, brothels, and
anything to do with that.
Plus, again, I don't see it too much, but obviously there
are labor issues as well, domestic servitude, folks in
restaurants, things like that, that need to be addressed, too.
Ms. Sanchez. What about the rest of you, Ms. Jordan and Mr.
Cerda? Do you believe that the laws should change to reflect
more of this mental imprisonment, if you will, versus physical
and torture? Reaction?
Ms. Jordan. From my understanding of the federal law, the
definition, there is a new section in the federal law that is
called ``forced labor,'' and that does include psychological
coercion. It was specifically put in there at the request of
DOJ prosecutors who were having that specific problem, in that
there was a limitation in federal law on using psychological
coercion as a basis for prosecuting somebody under a slavery or
involuntary servitude statute.
So I guess my question would be: Is there a problem even
with that language that doesn't allow prosecutors to use
psychological coercion? Or is it simply an unwillingness of
prosecutors because that is more difficult, perhaps, when you
don't have the physical manifestation on a body or something
like that? I don't know what the answer is.
Ms. Sanchez. Mr. Cerda, both from having been on the other
side and now as an immigration lawyer on these complicated
cases, what would you say? Is the law okay for us to be able to
get what we need? Or do we need to change that?
Mr. Cerda. I think right now you are looking at the early
stages of the law. The challenges you face, as you pointed out,
is that generally these organizations to prey on their own
communities, and the coercion, the code of silence that they
enforce is a significant challenge for any law enforcement
officer to establish a case. So those are the realities you
face in the development of the case.
The law has been modified to try to address what has been
identified as an early shortcoming with respect to the labor
situation. I think you see how that develops in terms of case
law, in terms of the ability of prosecutors to present, and
also the ability of victims, as well as those supporting the
victims, how it affects their ability to try to encourage the
prosecutors to accept the case.
At the federal level, regardless of what the arena is, what
the law is, the burden is generally high, given the strain on
the federal judiciary system in terms of accepting cases, that
you do have to have your facts, yours T's crossed, your I's
dotted. Right now, I do believe the law as it stands does
afford an opportunity, but it is a challenging environment to
develop a case.
Ms. Sanchez. So you think because it is a harder case to
really get your hands around that prosecutors may be walking
away from some of this?
Mr. Cerda. I think you have that, where clearly having
myself presented before a judge on the government's behalf, you
want a case that you can uphold and that withstands scrutiny,
whether it is with a judge or an appeal on review. You don't
want bad case law developed.
In the immigration context and trafficking context as a
whole, the organizations smuggling and trafficking are
ruthless. The Chinese organizations are notoriously ruthless,
not only with the victims here, but their families in China.
Same thing with Russian organized crime. The code of silence in
those communities is pretty impressive in terms of the stifling
effect is has on case development.
Ms. Sanchez. Mr. Cerda, you talked about, and I asked this
of Lieutenant Marsh earlier, you said that there wasn't as much
collaboration going on with some of the local law enforcement.
Can you elaborate on what you meant by that, and what you
think we could do to make more of that happen? Because it seems
to me in Orange County at least, we are really taking care of
business in trying to work together.
Mr. Cerda. As we hear the debate on immigration, it is a
very volatile, emotional debate. Some communities jump to
judgment in the position of saying, ``we are not going to be
looking at immigration issues or cooperation with ICE.'' Other
communities, it appears like Orange County is one of those,
there is coordination with ICE to really try to use the laws,
both state, local and federal immigration included, to try to
address the trafficking threats out there.
Ms. Sanchez. So are you saying that maybe the local
agencies that don't want to work are ones that want to be more
of a sanctuary for people without the right documents? Or are
they on the other side, the ones who just don't want to have
anything to do with immigration, therefore we are not going to
deal with the federal government because you are not doing
anything anyway.
Mr. Cerda. I think the political bodies, when addressing or
contemplating debating the sanctuary issue with respect to
immigration, should be careful not to be too broad, to the
effect that their broad statements, mandates of non-cooperation
on immigration issues, actually may impede cooperation on
trafficking and smuggling investigations with ICE.
Clearly, the bottom line here with everyone that I have
heard is that to really address trafficking, it is a
partnership effort with state and local entities, as well as
NGOs. Anything that impedes that communication or the potential
for that communication to exist, I think favors trafficking
organizations.
Ms. Sanchez. Thank you.
Ms. Jordan, I wanted to ask you, because I had asked Mr.
Garcia in the earlier panel about CP, and the fact that we had
gotten information that continued presence status to victims
was taking way too long. And he said that he thought under the
current mode of operation that they were shooting for a month,
but he really thought it should be taking no longer than 2
weeks.
What is your reaction to that explanation? How long do you
think it is really taking? And why do you think it is taking
that long?
Ms. Jordan. Okay. I am not a service provider, so I rely
upon others who are actually the service providers. What I have
been told is that it may take them a month once they actually
receive the application, but there first has to be a
determination through an interview with the victim that
somebody is, you know, they have to decide whether or not the
person is or is not a victim of trafficking, and that can take
months.
So it is really the process of when ICE or the other
federal agency interviews the person, and then makes the
request. I have been told it can take even up to 8 months in
total. So that 1 month is probably correct, but the rest of it
is much longer, and apparently in the past, for a while it was
done much more quickly?this process of determining that
somebody is a victim of trafficking, and then getting CP fairly
quickly?but that is not the case now.
Ms. Sanchez. Okay. Thank you.
And lastly, Ms. Jordan, your testimony refers to the
complicated process that trafficked children go through, being
transferred between several government programs.
What are your recommendations for how to simplify and
improve the bureaucratic process so that we can provide better
support and care and nurturing, really, for these children who
have been traumatized?
Ms. Jordan. I think the first issue that was raised was
that when children are found, they should not be re-traumatized
immediately by going through any kind of an interrogation by
federal law enforcement. They should immediately be put into a
safe system, and there is this program that is carried out by
ORR on behalf of ICE, which is called DUCS, Division of
Unaccompanied Children Service. So the children go into that.
But the process right now is that once children are either
in that system or they are outside of the system, they are kind
of on their own. They go to see a service provider. There has
to be a determination made that this person is, first of all, a
minor; and secondly, is the victim of a severe form of
trafficking. And then ORR issues a recommendation that this
child go into the Unaccompanied Refugee Minor Program, which is
really an excellent program to take care of children.
The problem is that the way that the statute is written, it
says that ORR has to do this in consultation with Justice and
Homeland Security. What ORR has turned this into is getting
Homeland Security or Justice to actually tell them that this
child is a victim of a severe form of trafficking, which then
means that the child has to be interrogated by either Homeland
Security or Justice, which means that the child is being
interrogated in a way that was never intended by Congress. The
statute itself doesn't require Homeland Security or Justice to
say that the child is a victim of a severe form of trafficking.
All it says is that ORR has to consult.
So what we want is a process, then, once this child has
come to the attention of ORR, that ORR itself makes the
determination that the child is a victim of a severe form of
trafficking, and does not subject a child to this interrogation
by Homeland Security or Justice. Then they can consult with
them and they can tell them about this, but they don't turn
over the information about the child because that would, in
essence, also be an interrogation of the child unbeknownst to
the child without advice of counsel or anything else.
Then once ORR determines that the child is a victim of a
severe form of trafficking, that child should be moved
immediately into the Unaccompanied Refugee Minor Program,
because it is really the safest and best place for a minor
child to be, and it is the only way that these children can
access services.
Ms. Sanchez. Thank you.
With that idea that we are going to try to push some
legislation this year to help in this arena, is there anything
that I haven't asked, or some point that you would like to see
asked from a policy standpoint, or from changing the
bureaucratic process that people have to deal with? Is there a
point that I haven't raised, or that you haven't told me that
you think is important for us to know and have on record?
I will start with Mr. Cerda.
Mr. Cerda. Now that I am a little free, not being in
government service, I always vouch for the need for resources.
Clearly, resources under state, local and the NGO level, as
well as the ICE level, the federal level, are something that
should be contemplated when trying to determine how effective
we truly can be against trafficking organizations.
The enforcement mission is drained. It has a lot of
missions, a lot of fronts that it has to deal with. Trafficking
is one of them. It is always a difficulty to prioritize, but
clearly you have to, and additional resources will make those
decisions a little easier and highlight the need for a focus on
trafficking.
Ms. Sanchez. Thank you, Mr. Cerda.
Ms. Jordan?
Ms. Jordan. I think the most important thing that we can do
at this point, because we have had 6 years of experience with
the law, we know how it works and how it doesn't work, really
is to take a look at the law from the perspective of the
victims. The children and the adults also, but particularly the
children because I was involved in the 2000 legislation and I
know that we just didn't get around to really focusing enough
on the issue involving children and family reunification with
victims.
So I think kind of trying to look at the entire process
from the perspective of the victims, and are we really
accomplishing the goals that were set out in 2000. That kind of
information, you know, there are many organizations that could
speak with you and give you first-hand knowledge about the
limitations of the law. I think that would be an excellent
place to start, to make sure that we respect the rights of all
of the undocumented immigrants who come here and are victimized
in our country.
Ms. Sanchez. Great. Thank you.
And lastly, Lieutenant Marsh?
Lieutenant Marsh. I think you have made great strides. I
don't want to minimize any of that. In a lot of my testimony, I
feel almost negative, and I don't want to make it seem that we
are not doing great deeds, and I don't think people from the
NGO perspective or the federal perspective are trying their
hardest to get things done.
I think that the lack of documented successful prosecutions
in human trafficking, though, should be a type of red flag to
let you know, and I know there does exist some language
reference to psychological coercion, fraud, force. It is not
really being followed through with at the prosecutorial level.
It is also not being mimicked at the state level legislation.
If there is some way for your subcommittee or yourself or
others to follow through with having those changes emphasized,
or having a change of methods of change of priorities, follow
through with in those different agencies, I think you would
find many more human trafficking cases, more victims to
support, and that we would be able to deal with a lot of the
things that Ms. Jordan has been discussing, and Mr. Cerda, in
reference to victim support and the services they need to make
sure that they get reintegrated and dealt with all the
emotional trauma they have had to go through.
Ms. Sanchez. Great.
I thank all the witnesses for your valuable testimony.
I know that many of the members will have additional
questions for you in writing. I would ask you again to get
quickly back to us once we ask you those questions.
Hearing no further business, the subcommittee stands
adjourned.
Thank you.
[Whereupon, at 4:28 p.m., the subcommittee was adjourned.]
APPENDIX
----------
For the Record
Prepared Opening Statements
Prepared Opening Statement of Hon. Sheila Jackson Lee
March 15, 2007
Thank you, Chairwoman,am Sanchez and Ranking Member Souder for
convening this very important hearing on the timely topic of the issues
related to the detention of other-than-Mexican (OTM) immigrants who
have been apprehended after crossing our borders illegally. I thank the
witnesses for their attendance and look forward to their insightful
testimony.
Madam Chair, detention is a major enforcement issue. Mexican
nationals who are apprehended crossing the southern border without
proper documentation are returned to Mexico, usually the same day or
the following day. However, OTMs are subject to different processes
because Mexico will not accept them. Once Border Patrol fingerprints
and processes such aliens and determines their nationality, verifies
that they do not have any outstanding warrants, and confirms that they
are not on any terrorist watch lists, they are designated for removal.
Until recently, after an OTM was placed in the removal process
Border Patrol would contact the Office of Detention and Removal
Operations (DRO) within ICE to determine whether DRO had adequate bed
space available for that OTM. If space was available, the alien would
be detained. However, due to space limitations, OTMs were often
released with a notice to appear before an immigration judge at a later
time. Not surprisingly, very few OTMs actually appeared for their court
date leading many to deride the policy as ``catch and release.''
Alien smugglers sought to exploit this situation by bringing
children across the border along with groups of smuggled strangers,
attempting to pass the groups off as family units. As family units, the
smuggled immigrants were almost certain to be released under the
``catch and release'' policy.
The use of expedited removal, coupled with increased detention bed
space, allowed the Department to declare an end to the policy of catch
and release in August 2006, and replace it with a policy of ``catch and
return'' where 99 percent of OTMs are apprehended and detained. Under
the policy, for the first time, significant numbers of families with
children are being detained and removed from the U.S.
Immigration and Customs Enforcement (ICE), the largest
investigative branch of the Department of Homeland Security sought to
address this problem by providing special facilities for families to
remain together while awaiting their proceedings. One of these
facilities resulted from the acquisition of the T. Don Hutto
Correctional Center through and Inter-Governmental Service Agreement
with Williamson County, Texas. Corrections Corporation of America (CCA)
operates the 512-bed facility under a contract with Williamson County.
The facility was opened in may 2006 to accommodate immigrant families
in ICE custody. But history has shown that good intentions often go
astray, which is what happened at the Hutto Detention Center.
Due to the increased use of detention, and particularly in light of
the fact that children are now being housed in detention facilities,
many concerns have been raised about the humanitarian, health, and
safety conditions at these facilities. In a 72-page report, ``Locking
Up Family Values: The Detention of Immigrant Families,'' released last
month by two refugee advocacy organizations, the Women's Commission for
Refugee Women and Children and the Lutheran Immigration and Refugee
Service concluded that the T. Don Hutto Family Residential Center and
another family detention center, the Berks Family Shelter Care
Facility, were modeled on the criminal justice system ``where residents
are deprived of the right to live as a family unit, denied adequate
medical and mental health care, and face overly harsh disciplinary
tactics.''
Every woman we talked to in these facilities cried, said Michelle
Brane, director for Detention and Asylum at the Women's Commission. She
stated further that, ``Many of the children were clearly sad and
depressed. Some feared separation from their parents, a common threat
used to ensure that children behaved according to facility rules.
Alternatives exist that are not punitive and that keep families
together while also addressing the enforcement concerns of the
government.''
In addition, the report found that:
Hutto is a former criminal facility that still looks
and feels like a prison, complete with razor wire and prison
cells.
Some families with young children have been detained
in these facilities for up to two years.
The majority of children detained in these facilities
appeared to be under the age of 12.
At night, children as young as six are separated from
their parents.
Separation and threats of separation were used as
disciplinary tools.
People in detention displayed widespread and obvious
psychological trauma. Every woman we spoke with in a private
setting cried.
At Hutto, pregnant women received inadequate prenatal
care.
Children detained at Hutto received only one hour of
schooling per day.
Families in Hutto received no more than twenty minutes
to go through the cafeteria line and feed their children and
themselves. Children were frequently sick from the food and
losing weight.
Familes in Hutto received extremely limited indoor and
outdoor recreation time (only one hour per day, five days a
week).
Access to Counsel is extremely limited due to the
remote location.
After the report was issued, changes were instituted at the Hutto
facility, including additional recreation time for the children,
removal of the razor wire, and an end to the requirement that children
wear uniforms at the facility. However, the groups that authored the
report remain concerned that these improvements are largely cosmetic in
nature, and do not address the fundamental problems of housing children
in this type of a detention facility.
Similarly, in December 2006, the Department's Inspector General
(IG) issued a report that examined health and safety standards, as well
as the overall conditions of confinement, at many of the facilities. In
the report, the IG noted instance where:
detainees did not receive required medical screenings;
non-emergency medical requests were not responded to
in the required timeframe;
hunger-strike and suicide-watch detainees were not
properly monitored;
detainees were injured because of unsafe bunk bed
construction and excessively hot water;
lack of ventilation, inconsistent food service, and
pests made living conditions poor;
staff did not properly keep records of detainees'
detention files;
unprocessed detainees were held longer than the
allowed 12 hours and usually in rooms to small to accommodate
the number of detainees being held;
adequate clothing was not provided and the washing of
dirty clothes was irregular; and
visitation time was cut short.
In sum, the IG made 13 recommendations addressing areas of non-
compliance and ICE proposed actions to implement nine others. While ice
did take many actions to quickly remedy the IG's findings, some
concerns still exist today.
I have addressed this problem of detention facilities in Section
622 of my Save America Comprehensive Immigration Act of 2007, H.R. 750.
It would provide for a wide range of human and cost-effective
alternatives to detaining families and other vulnerable populations in
prison facilities. These alternative settings would be more humane
while still ensuring an undocumented immigrant's appearance before
immigration officials for removal or a hearing.
These secure alternatives would be based on the best practices
utilized by the Appearance Assistance Program and the Department's own
Intensive Supervision Appearance Program which has achieved remarkably
high compliance rates for aliens.
It would address the need to provide non-penal facilities for
members of vulnerable populations needing specialized care such as the
families arrested with their children, aliens with serious medical or
mental health needs, aliens who are mentally retarded or autistic,
elderly aliens over the age 65, and victims of trafficking or criminal
operations rescued by governmental authorities.
The program would be implemented by non-govermental organizations
in order to achieve a cost savings for the Department. This also would
facilitate the alternative placement of members of vulnerable
populations found by the Department not to be a flight risk or danger
to the community.
Placements would be based on the undocumented immigrant's need for
supervision. The placements would range from individual or
organizational sponsors and supervised group homes to a supervised,
non-penal community setting that has guards stationed along its
perimeter.
An undocumented immigrant's selection for the program would
entirely be within the discretion of the Department, and it would not
convey any rights or benefits under the Immigration and Nationality
Act. The Department's decisions regarding the use of the program would
not be subject to administrative or judicial review.
We have to find a way to ensure that the families and other
vulnerable populations of detained immigrants are not housed in penal
settings as if they are convicted criminals. We must not compromise on
our humanity and decency.
Thank you Madam Chairwoman. I look forward to the testimonies of
the witnesses, and I yield back the remainder of time.
Prepared Statement of Hon. Bennie G. Thompson
Thursday, March 15, 2007
I am pleased that the Subcommittee is holding a hearing
today on an issue that has been in the news a great deal lately--the
detention of other-than-Mexicans who have been apprehended crossing our
borders illegally.
I have long supported ending the policy of ``catch and
release,'' under which non-Mexicans who entered the U.S. without proper
documentation were issued a notice to appear at a future hearing and
then released.
Of course, the overwhelming majority of these people did
not appear for their hearing, but instead made their way to the
interior of the country and disappeared into American society.
It is clear that catch and release was a failed policy.
However, I am deeply concerned about the consequences of
the Department's new policy, often called ``catch and return.''
Under this policy, virtually all other-than-Mexicans are
being detained at facilities either operated by or under contract to
ICE until they are returned to their home country.
The unprecedented rate at which the Department is
detaining people raises questions about how to ensure their health and
welfare and basic civil rights while in custody.
Also, for the first time ever, a significant number of
families with children are being held in these detention facilities.
I am greatly troubled by some of the allegations we have
heard about the treatment of children who are caught up in these
unfortunate circumstances through no fault of their own.
That is why I am interested in hearing testimony today
about what Immigration and Customs Enforcement is doing to address
these concerns.
I also want to explore whether there are equally effective and less
costly alternatives to detention that may be appropriate, particularly
when children are involved.
I intend to work with my colleagues to ensure that as the
Department implements tougher border enforcement and detention
policies, we do so in a way that honors the rights and values that make
our country great.
Prepared Opening Statement of Hon. Sheila Jackson Lee
March 20, 2007
Mr. Chairman, I want to first thank you for holding this important
hearing. I also would like to thank our witnesses today for their
important testimony. The purpose of this hearing is to examine human
trafficking issues. The United States is one of the leaders in the
fight against human trafficking, and this is reflected in the recent
legislation that defines and expands the U.S. Government's role in the
war against human trafficking.
The Trafficking Victims Protection Act of 2000 (TVPA), Pub. L. 106-
386, established new forms of protection and provided for additional
assistance for the victims of human trafficking; revised the criminal
statutory provisions and enhanced the penalties that are available to
federal investigators and prosecutors; and its expanded the United
States international role in preventing trafficking.
The Trafficking Victims Protection Reauthorization Act of 2003
(TVPRA 2003), Pub. L. 108-193, reauthorized the TVPA and established
additional responsibilities for the U.S. Government's anti-trafficking
operations. For instance, it required new information campaigns to
combat sex tourism, established the Senior Policy Operating Group on
Trafficking in Persons, and required a yearly report from the Attorney
General to Congress on the U.S. Government's activities to combat
trafficking.
The Trafficking Victims Protection Reauthorization Act of 2005
(TVPRA 2005), Pub. L. 109-164, reauthorized the TVPA again and created
new anti-trafficking resources, such as grant programs that assist
state and local law governments in dealing with human trafficking. It
also expanded the victim assistance programs.
The interagency Human Smuggling and Trafficking Center (HSTC)
brings together federal agency representatives from policy, law
enforcement, intelligence, and diplomatic sectors, so they can work
together on a full-time basis to achieve increased effectiveness and to
convert intelligence into effective law enforcement and other action.
This includes the Department of State (DOS), the Department of Homeland
Security (DHS), and the Department of Justice (DOJ). The HSTC also
serves as a clearinghouse for trafficking information.
Increased collaboration also is needed between the U.S. government
and the state and local agencies who assist in dealing with human
trafficking. This includes increased efforts to find victims, to ensure
that they receive whatever support is available, and to efficiently
provide them with whatever other services are available.
Federal, state, and local authorities also need to cooperate in
monitoring and combating labor trafficking within the United States.
frequently, migrant workers are recruited from underdeveloped countries
to work in countries where low-cost foreign labor is in demand. when
they begin their new employment, they find themselves in a state of
involuntary servitude. To prevent these nations of human trafficking
from leaving, the unscrupulous employers confiscate and hold travel
documents, and they use confinement, the threat of physical force, and
withholding wages.
I also believe that federal, state, and local agencies need to
better monitor the use of family-based visa petitions to bring women
and children into the country. According to a Government Accountability
Office (GAO) study that I requested last year, in FY2005, at least 398
of the U.S. citizen and lawful permanent resident petitioners who filed
family-based visa petitions were on the National Sex Offender Registry
that is maintained by the Federal Bureau of Investigations.
It seems unlikely to me that 398 convicted sex offenders would have
the knowledge and the contacts needed to bring women and children into
the country that way. There may be a criminal organization that is
facilitating these arrangements. In any case, we need to know whether
the sex offenders are using our immigration laws to bring innocent,
unsuspecting victims into the United States. Among other things, my
foreign Anti-Sex Offender Protection Act would establish a task force
of Federal, State, and local law enforcement agencies to investigate
the cases in which it appears that the foreign woman or child may be at
risk.
Again, thank you Mr. Chairman for holding this important hearing
and I look forward to the testimony of our witnesses.
Prepared Opening Statement of the Hon. Mark Souder
March 20, 2007
Thank you Madame Chair. I would like to thank our witnesses for
being here today. On the first panel, I look forward to hearing from
Mr. Gabe Garcia from Immigration and Customs Enforcement (ICE) on the
investigations of human trafficking and the similarities in the
criminal networks and techniques with criminal organizations involved
in smuggling people and contraband.
On the second panel, I would like to welcome Ann Jordan from Global
Rights and Lt. Marsh from Orange County. I am very interested in your
views on how human trafficking organizations operate and what tools are
at our disposal to intercept and dismantle these criminal
organizations. Lastly, I'd like to welcome Victor Cerda. As the former
Director of the Office of Detention and Removal and now as a practicing
immigration lawyer, I think that you will have a lot to offer this
Subcommittee as a follow up to Part I of this hearing on the role
detention plays in securing the border, particularly as it relates to
asylum seekers and victims of trafficking. I am also interested in your
perspective on the judicial review process for these cases and what
changes might be necessary in that arena to facilitate the review
process.
During the hearing last week, John Torres, Director of ICE?s Office
of Detention and Removal Operations, along with several private sector
witnesses, testified before the Subcommittee on the issue of detention
standards for illegal aliens with particular focus on the detention of
children and asylum seekers. Concerns were raised about the amount of
education, federal staffing, and medical care provided to illegal
aliens.
I am particularly interested in following up during this hearing on
options to address the 90% absoconder rate for aliens not held in
detention and the security risks associated with releasing individuals
that have not been fully vetted and either granted admittance or
ordered deported. We heard several examples where illegal aliens have
exploited political asylum to avoid detention and remain in the U.S.
For example, murderer Mir Aimal Kansi and 1993 World Trade Center bomb
plotters Ramzi Yousef and Sheik Omar Abdel Rahman were granted
political asylum.
During this hearing, I hope through the testimony and questions to
explore how human trafficking and narcotics smuggling cases are
investigated, particular how DHS is able to investigate and dismantle
criminal organizations and whether there is or could be links between
these organizations and terrorist groups.
Human trafficking is now considered a leading source of profits for
organized crime, together with drugs and weapons, generating billions
of dollars. In addition to the horrible human rights abuses suffered by
victims of human trafficking, these pipelines can be used by smuggling
and trafficking organizations for the clandestine entry of undocumented
aliens, and may be exploited by terrorists to gain entry into the
United States and attack our critical infrastructure.
Several years ago (2004), there were public reports by people in
the State Department providing evidence that terrorist groups are using
human trafficking to acquire recruits and that some terrorists are
?abducting children and making them child soldier slaves.? At the time,
Secretary Powell also was quoted as saying that human trafficking could
very well help to finance terrorist activity.\1\ Additionally, Italy's
secret service has reported evidence that al-Qaeda is in the business
of smuggling illegal immigrants into Europe to fund terrorist
activities.\2\
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\1\ CNN Transcript: Insight with Correspondent Jonathan Aiken,
Human Trafficking in Japan, http://transcripts.cnn.com/TRANSCRIPTS/
0408/19/i_ins.01.html
\2\ Italy sees al-Qaeda link to human trafficking, The News
International, September 8, 2003, http://www.freerepublic.com/focus/f-
news/978250/posts
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While many of these concerns cannot be discussed in a public
hearing, I am very concerned that not enough work is being done
analyzing these links and this is an area I hope the Subcommittee
invests a significant amount of time this Congress.
Thank you Madame Chair for yielding the time and I'll close by
again thanking the witnesses for being here and I look forward to your
testimony.