[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
IMMIGRATION RAIDS: POSTVILLE AND BEYOND
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
JULY 24, 2008
Serial No. 110-198
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
LINDA T. SANCHEZ, California LOUIE GOHMERT, Texas
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
ANTHONY D. WEINER, New York
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
JULY 24, 2008
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 5
The Honorable Bruce L. Braley, a Representative in Congress from
the State of Iowa
Oral Testimony................................................. 7
Prepared Statement............................................. 10
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas
Oral Testimony................................................. 14
Prepared Statement............................................. 16
The Honorable Lynn C. Woolsey, a Representative in Congress from
the State of California
Oral Testimony................................................. 19
Prepared Statement............................................. 20
The Prepared Statement of the Honorable David Davis, a
Representative in Congress from the State of Tennessee
Oral Testimony................................................. 21
Prepared Statement............................................. 22
Ms. Deborah Rhodes, Senior Associate Deputy Attorney General,
U.S. Department of Justice
Oral Testimony................................................. 39
Prepared Statement............................................. 42
Ms. Marcy Forman, Director of Investigations, U.S. Immigration
and Customs Enforcement
Oral Testimony................................................. 54
Prepared Statement............................................. 56
Mr. Erik Camayd-Freixas, Professor of Modern Languages, Florida
Oral Testimony................................................. 77
Prepared Statement............................................. 80
Mr. David Leopold, David Wolfe Leopold and Associates, on behalf
of American Immigration Lawyers Association
Oral Testimony................................................. 100
Prepared Statement............................................. 102
Mr. Robert R. Rigg, Associate Professor of Law and Director of
the Criminal Defense Program, Drake University Law School
Oral Testimony................................................. 115
Prepared Statement............................................. 117
Mrs. Lora Costner
Oral Testimony................................................. 123
Prepared Statement............................................. 124
Material Submitted for the Hearing Record........................ 143
POSTVILLE AND BEYOND
THURSDAY, JULY 24, 2008
House of Representatives,
Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 11:04 a.m., in
room 1310, Longworth House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Conyers, Lofgren, Jackson Lee,
Sanchez, Gutierrez, Ellison, Smith, King, Gallegly, and
Staff present: J. Traci Hong, Majority Counsel; Andres
Jimenez, Professional Staff Member; and George Fishman,
Ms. Lofgren. This hearing of the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law will come to order.
The Chair, by unanimous consent, may adjourn this hearing
at any time.
Before making my opening statement, I would like to make a
couple of administrative comments.
First, I think there are more people in this room than I
have every seen before, and so we are opening up an overflow
room for those of you who would like to sit down--and I think,
really, we have got too many people in here in terms of fire
safety--and that overflow room is 2226 over in the Rayburn
Building, and the hearing will be broadcast there. So if some
people who are standing in the back could consider moving
there, that would be quite terrific.
And also this hearing will be broadcast on Channel 2 of the
House Television Network so people can also, if you are here on
staff, will be able to watch it from your offices, and that
might be more convenient as well.
I will just note that this is a serious hearing based on
accounts that we have now received about the largest ICE raid
in the history of the United States. It seems to me one of the
hallmarks of our great country is that we do not treat people
like livestock. Justice is not a commodity in America; it is
And over 4 days in May at the Waterloo National Cattle
Congress, each case was listed individually--the United States
vs. a single person--and yet the information suggests that the
people charged were rounded up, herded into a cattle arena,
prodded down a cattle chute, coerced into guilty pleas and then
to Federal prison. This looks and feels like a cattle auction,
not a criminal prosecution in the United States of America.
Our country was founded in opposition to the brutal
practices of English tyrants. Our Western legal system is
grounded on the firm belief that people in America have rights
to due process. The crushing power of the states is constrained
by the Constitution, which guarantees those rights.
So what happened at Waterloo? Seventeen defendants to one
lawyer, group hearing, script telling lawyers what to say in
court, limited time for lawyers to meet defendants even without
the language barriers the lawyers faced. Kind of like a cattle
The goal seems to have been that government would look
tough on illegal immigration. But did our government follow the
law, follow the Constitution and give meaningful due process?
We should also be concerned by the following: The raid and
prosecutions may have interfered with ongoing investigations
into serious labor-law violations, including allegations of
child labor and abuse. The workers prosecuted by the government
may have been able to assist in that investigation or may have
been victims of the violations themselves.
Many of the workers apparently had no idea what a Social
Security number or card even was. It may have been the employer
tagging them with the number so it could hire them.
The Federal Government spent at least $4 million to put
people through all of this.
What was accomplished? Well, it didn't help people like the
person Representative Davis mentions in his testimony or the
witness on one of our panels, who had her identity stolen. And
why do I say that? No effort was made to punish the persons who
truly meant to steal identities and use them to harm honest,
The American system of justice is designed to ensure that
only those who commit crimes are convicted and to identify the
truly egregious, intentional, harmful acts by criminals and
punish them accordingly. Those who intend to steal identities
don't walk away with just 5 months of prison time.
We spent more than $4 million interfering with a legitimate
labor-violation investigation, violating the principle of
individualized justice and locking up impoverished, uneducated
workers trying to provide for their families without allowing
them a chance to talk to a lawyer who has the time and skill to
explain a complicated process to them.
This is a magnificent country we have. In this country our
Constitution guarantees that a poor person of any race, of any
ethnicity, whether here legally or not, has a right to due
process and to be represented by a lawyer when the government
tries to prosecute and put her in jail. And that representation
is not a formality. It is a meaningful right that includes the
appropriate amount of time and space for the tools needed to
conduct substantive and qualitative representation. Only
through individualized processes can we be sure that, at the
end of every trial, justice has indeed been served.
I would now recognize our distinguished Ranking Member
Steven King for his opening statement.
Mr. King. Thank you, Madam Chair.
And I want to thank in advance the witnesses for agreeing
to come here and testify, especially when it is Members,
because you have busy schedules, and we also know that you go
on the record on both sides of the microphone in this place,
which is quite an interesting dynamic to be on the other side.
I wasn't present at the Agriprocessors Incorporated plant
in Postville, on May 12, when 389 illegal immigrant workers
were arrested and detained by ICE. Nor was I present during the
prosecution of those workers a short while later.
But what I have heard from parties who were present is that
the workers were in this country illegally. They used false
identification documents and stolen Social Security numbers to
get their job. They were provided competent criminal defense
attorneys and interpreters during the prosecution process and
were given a choice of pleading guilty or going to trial.
If this is the case, I see no reason for this hearing other
than to try to lend credence to the arguments of those who want
amnesty and believe that working illegally in the United States
is a victimless crime. When an illegal immigrant gets a job in
this country using the identification documents or Social
Security number of another person, it is a crime, and the other
person is the victim of that crime.
The FTC estimates that 8.3 million Americans were victims
of identity fraud in the year 2005, and that number is on the
rise. We will hear today from Mrs. Lora Costner. Both she and
her husband had their identify stolen by illegal immigrants,
and she will tell us how it ruined their lives.
With respect to Agriprocessors--the enforcement action--the
allegations are that the illegal immigrant defendants somehow
did not receive due process. But each defendant was provided a
criminal defense attorney, and it was up to those defense
attorneys to ensure due process. They were also provided
According to one of the defense attorneys present, the
client did get due process. According to a July 11, 2008, New
York Times article, attorney Sarah Smith stated, ``I think they
understood what their options were. I tried to make it very
clear.'' And according to the article, Mrs. Smith said she was
convinced, after examining the prosecutor's evidence, that it
was not in her client's best interest to go to trial. So a
defense attorney, who was an advocate for her client, believed
her clients made the right choice by accepting the plea
agreements offered by the U.S. Attorney's Office.
For far too many years, employers have gotten the message
that they can hire illegal immigrant workers with few or no
consequences. ICE worksite enforcement actions, like the ones
in the Postville, put these employers and the illegal workers
themselves on notice that, if they chose to violate the law,
they are subject to prosecution.
And listening to the gentlelady from California's opening
statement about the defendants being coerced into guilty pleas,
I think that is a presumption that I would--if we can hear that
confirmed here today, I would be quite interested.
But if you have an attorney--if you come into the United
States illegally, and you go to get a job, and you are breaking
the law, and then you are rounded up in an ICE raid, and this
country and the taxpayers fund to the tune of $4 million your
attorney and your interpreter, and then you plead guilty
because it is in your best interest--and by the way, in a plea
bargain agreement, as well--I mean, that is the equivalent of--
this is on a far-higher scale for those of you who will choose
to misinterpret my intent here.
But let us just say that law enforcement arrests someone on
suspicion of murder, and they say, ``Tell us where the body is,
we will plea agreement that down, and we won't go for the death
penalty.'' If that defendant tells where the body is, they get
a plea agreement for a life sentence rather than a death
penalty. That is not in proportion, obviously, but that
illustrates for you what a plea agreement really is. And if
they have to hand them a piece of paper so that they can answer
in English in America, that is not what I call confusion.
So in group hearings, by the way, we are looking at 12 to
20 or more million people in the United States unlawfully, and
I don't know how we process 12 to 20 million in an individual
fashion. If you do it in group, they consent to that, I believe
their rights were protected. I am willing to listen to the
arguments to the contrary here today.
And I yield back the balance of my time.
Ms. Lofgren. Gentleman's time has expired.
I would now invite the Chairman of the full Judiciary
Committee for an opening statement if he wishes to give one.
Mr. Conyers. Thank you, Madam Chair.
I am pleased that we are holding this hearing because it
gives us a chance to revisit a very important subject.
We have the Ranking Member of the full Committee here, and
we have Steve King, the personification of what we ought to do
in sort of a get-tough mode with immigration policy, full-bore
And we have a way of trying to figure out where we go from
the Immigration Reform Act that we started out. It was supposed
to be a big advancement forward, something happened in the
Senate, and here we are.
So for me, I am looking for a way back to how we can get to
the middle, Steve, if there is a middle way in this.
What is it that we can do to enforce the law--first of all,
recreate the law, and we want to look at that. And, secondly,
how do we enforce it? And these raids where in a way they were
brutal, they were payback, they are gotcha and it seemed like
there was something else going on besides being the biggest
raid in history so far.
And so I am looking for this way that we can begin to
examine what we can do besides deport 12 million or more
people. I think we can figure that out.
But there is a lot of emotional attachment to this subject
matter that brings us here today with this Committee.
First of all, in a downward-spiraling economy, we have a
lot of people looking for somebody to blame, and there is
nobody more eligible for blame than people who aren't qualified
or legal citizens and that factors into this. I want to try to
separate some of that out.
Mr. Gallegly. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Gallegly. Mr. Chairman, I appreciate your comments. I
would like to say that I don't think that we should be blaming
legal, law-abiding citizens. And when we talk about having to
deport 12 million or 20 million or whatever the magic number
is, you were here in 1986 when we passed the Simpson-Mazzoli
bill, better known as Amnesty or IRCA--Immigration Reform Act--
and where we made between 4 and 5 million people that were
illegal legal under the premise that this will never happen
again because we have a safety valve called employer sanctions.
The only problem is that we never enforce those employer
I contend that we could solve a tremendous number of the
problems with illegal immigration today without one border
patrol agent. I think all we have to do--we don't have to
deport anyone. If we enforce the laws under IRCA and subsequent
laws in the 1995 act, as it relates to benefits, jobs and the
overwhelming reason why people came here to start with, if we
deny them access to the things that they are illegally entitled
to, I think a large number will self-deport.
Then when we find that we have unmet domestic needs for
certain things--the whole premise of our immigration policy is
based on assimilation and bringing people here from countries
all over the world to fill jobs and make America a greater and
strong place. But we do it under the rule of not--under the
rule of law, not under the cover of darkness.
And I yield back.
Mr. Conyers. Well, now that I have given you half of my
opening statement time just----
Mr. Gallegly. [Off mike.]
Mr. Conyers. No, but I want payback, though, even though it
doesn't happen often. [Laughter.]
Now, Elton, here is--may I get an additional minute if I--
Ms. Lofgren. Well, the Chairman is allocated an additional
minute without objection.
Mr. Conyers. Thank you.
Well, here is the problem, Elton. It was under the
Administration that you advocated far more forcibly for than me
and under a 12-year of Republican leadership in the House of
Representatives that all these complaints arise from that you
are telling me what we should have done.
Now I will yield you the rest of my 1 minute left.
Mr. Gallegly. I appreciate that. During that same period of
time, we also had 8 years as a president--and really enforcing
the laws of the land is not the legislative branch, it is the
Ms. Lofgren. The gentleman's time has expired, and we will
now ask the Ranking Member of the full Committee----
Mr. Gallegly. Thank the gentleman for yielding.
Ms. Lofgren [continuing]. If he would like to make a brief
opening statement so that we can get to our witnesses.
Mr. Smith. Thank you, Madam Chair.
I always appreciate the graciousness of the full Committee
Chairman and his yielding to Members, as he just did.
Madam Chair, it seems to me that the more the
Administration tries to do its job investigating companies who
employ illegal immigrants and prosecuting employers and illegal
immigrants who violate the laws against working in the U.S.
illegally, the more they are criticized for enforcing the law.
If Members of this Committee believe that illegal immigrants
should be allowed to work, the appropriate response should be
to repeal employer sanctions.
Of course, Americans expect that any law enforcement
investigation and prosecution be conducted properly. As long as
that goal is met, the prosecutions should continue unless the
law is changed.
Today's hearing was prompted by allegations of a court
interpreter, who is here to testify, that illegal immigrant
defendants prosecuted in connection with the worksite
enforcement action were not treated fairly. However, from the
beginning, these detained workers, most of whom were charged
with crimes related to identify theft, apparently were, in
fact, treated fairly.
Sixty-two of them were almost immediately released from
custody on humanitarian grounds. Immigration and Customs
Enforcement and the Department of Justice provided the illegal
workers with a clean and safe detention environment, and they
had criminal defense counsel appointed to represent them--and
interpreters--all at taxpayers' expense.
Today we will hear from DOJ and ICE, who will describe the
procedures followed during the investigation and persecution--
prosecution of 297 of the 389 people detained by ICE officials.
Just because someone does not agree with the prosecution or
does not like the fact that illegal workers are detained and
placed and deportation procedures doesn't mean that such
prosecutions are inhumane.
Instead of focusing on the rights of illegal immigrants who
take jobs from American workers, we should focus on ways to
protect the jobs of American workers. A report by the Center
for Immigration Studies found that illegal immigrants are
displacing Americans in the job market or depressing their
Black workers are disproportionately displaced by illegal
workers. The Bureau of Labor Statistics found that in June
nearly a third of all young Black adults were unemployed and
many others are so discouraged that they have left the labor
force. Unfortunately, if employers can hire an illegal employee
at less cost than a legal employee without the risk of
prosecution, they will hire the illegal immigrant, who will
cost them less.
Enforcement is working. When illegal immigrants know they
can no longer get jobs, they often leave the area, and most
return home. After states like Arizona and Oklahoma enacted
laws to crack down on employers who hire illegal immigrants,
newspapers were filled with stories detailing how illegal
immigrants were leaving the country. This is happening in
communities across the U.S.
And communities benefit from ICE worksite enforcement
actions. Last year, Georgia's Crider, Inc. lost over 600
illegal workers during an ICE worksite enforcement action, but
the company increased wages $1.00 an hour and continues to fill
positions with legal workers.
And after ICE arrested nearly 1,300 of its illegal workers,
Swift & Company, a national meat-packing business, also raised
wages and found U.S. citizens and legal immigrants to hire from
the surrounding areas. And they were disproportionately
Madam Chair, I expect today's hearing to show that
procedures were in place to ensure proper treatment of illegal
workers, then maybe we can start holding hearings that
highlight the harmful impact of illegal immigrants on American
And I will yield back.
Ms. Lofgren. Gentleman yields back.
In the interest of time, other Members are invited to
submit opening statements for the record.
Today we will hear from three panels of witnesses to help
us consider the important issues before us.
The two panels following this first will focus in on the
Postville issue and--but we have had ICE enforcement raids
throughout the country, and Members have had an interest to
talk about this general enforcement issue as it has affected
their constituencies. And so we are quite honored to have four
of our colleagues here today to offer their testimony and their
perspectives on this phenomena in our Nation.
First, it is my pleasure to introduce Congressman Bruce
Braley, who represents Iowa's 1st District. Congressman Braley
attended Iowa State University and graduated from the
University of Iowa School of Law in 1983. He has represented
employees challenging dangerous company safety standards and
has fought for people who lost their jobs due to corporate
Congressman Braley serves on the House Committee on
Transportation and Infrastructure, the Committee on Oversight
and Government Reform and the Small Business Committee. He is
also the chairman of the Small Business Subcommittee on
Contracting and Technology and the vice chairman of the
Subcommittee on Highways and Transit.
Congressman Braley is married to Carolyn Kalb, who lives
with her and their children--Lisa, David and Paul--in Waterloo,
So, Congressman Braley, we appreciate your being here
TESTIMONY OF THE HONORABLE BRUCE L. BRALEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IOWA
Mr. Braley. Thank you, Chairwoman Lofgren and Ranking
Member King and Members of the Committee, for holding this
important hearing today and for inviting me to testify.
I am very pleased that the Subcommittee is holding this
hearing to examine what happened in the investigation, arrest,
detention, conviction, incarceration and deportation of
hundreds of undocumented workers at the Agriprocessors Inc.
meat-packing plant in Postville, Iowa.
As the Chairwoman noted, I live in Waterloo, IA, which is
the site of the National Cattle Congress--which we are very
proud of--and I also happen to represent a portion of the town
of Postville, although the plant itself is located in
Congressman Latham's district.
I have been pressing for accountability and looking for
answers into what happened before and during the raid at
Agriprocessors, which is the world's largest kosher meat
processor, since the May 12, 2008, raid of the plant. Even
before the raid, in fact, in November of 2007, I have been
questioning the conditions at the Agriprocessors plant.
Unfortunately, I have received few good answers to my inquiries
and just last week received conflicting information from the
Department of Labor and ICE on their coordination before the
The raid at Agriprocessors, in which they detained nearly
400 workers on immigration and criminal charges, has been
touted as the largest enforcement action of its kind in U.S.
history. There is no doubt that workers who violate the law
need to be held accountable. Identity theft and fraudulent use
of Social Security information are crimes, and crimes should be
However, while ICE has been effective in finding and
detaining undocumented employees who may have broken the law, I
am equally concerned that the employer, Agriprocessors, be
fully investigated and prosecuted for any violations of the law
on its part. The sheer number of arrests made by ICE during the
May 12 raid raises serious questions about the company's
knowledge of what was going on in its facility. Almost half of
the entire workforce was detained by ICE officials, including a
dozen minors, who are prohibited by Iowa labor law from working
in a slaughterhouse in the first place.
The affidavit filed by Federal officials in support of this
raid cited numerous allegations of questionable behavior by
company officials, including under-the-table cash payments to
undocumented employees and physical abuse. The Des Moines
Register has reported that Agriprocessors has ``a history of
noncompliance with state and Federal regulations related to
food safety, pollution and workplace safety at its Postville
These allegations are serious and disturbing. I am pleased
that the Department of Labor has confirmed that the Wage and
Hour Division district office in Des Moines had begun an
investigation of Agriprocessors earlier this year for possible
violations of the Fair Labor Standards Act and that the
department is working in cooperation with the U.S. Attorney and
the State of Iowa to protect the rights of workers and properly
enforce the law.
However, I am also concerned that this ICE raid may have
had an impact on the ability of the Department of Labor to
conduct a thorough and comprehensive investigation of the
workplace itself. A letter I received from ICE last week said
that, prior to the May 12 operation at the Agriprocessors
facility, ICE fully coordinated its activities with other
Federal agencies, including the Department of Labor.
This statement directly contradicts a letter I received
from the Department of Labor on July 3, which said that, ``The
raid occurred without the prior knowledge or participation of
the Wage and Hour Division'' and that, ``No advance notice was
given to WHD or any other Department of Labor agency prior to
the raid.'' In addition, the DOL letter states that the May 12
enforcement action ``changes the complexion of WHD's
investigation of Agriprocessors.''
I am very concerned that there is conflicting information
from these Federal agencies on whether ICE communicated with
the DOL prior to the raid, and I intend to continue pushing for
answers about any communications between the agencies prior to
While upholding immigration law is important, so is
ensuring workplace safety, and one should not come at the
expense of the other. I sincerely hope that the lack of
communication between ICE and DOL did not and does not lead to
decreased safety for workers at the plant, although the
evidence seems to indicate that that is precisely what is
happening in Postville.
The situation at Agriprocessors is further evidence that
our immigration system is broken. I believe that Congress needs
to think boldly and act confidently for a change in order to
As I learned this year on my trip to the border in Mexico,
we need to invest in technology, infrastructure and personnel
to secure our border. We need to debate the feasibility of an
effective and affordable employment-verification system, and we
need to agree on what to do with undocumented immigrants who
are already here.
We also need to ensure that the appropriate agencies are
fully coordinating with each other and that employers like
Agriprocessors, who break our immigration laws, are thoroughly
investigated and prosecuted to the full extent of the law.
Unfortunately, under current Administration, the
prosecution of employers who violated immigration law has
plummeted. In 2004, only 4 employers faced sanction for hiring
undocumented workers out of more than 9 million employers in
the United States, and that record has only improved slightly
in recent years.
The Federal Government must demonstrate a commitment to
enforcing the law against corporations who profit by looking
the other way when immigration, workplace safety, child labor,
environmental and food-safety laws are being broken. Unless we
enforce our laws equally against both employees and employers
who break the law, we will continue to have a serious
immigration problem here in this country.
[The prepared statement of Mr. Braley follows:]
Prepared Statement of the Honorable Bruce L. Braley, a Representative
in Congress from the State of Iowa
Ms. Lofgren. Thank you very much, Congressman.
Next, I would like to introduce our colleague Congresswoman
Sheila Jackson Lee, who represents the 18th District of Texas.
Congresswoman Jackson Lee chairs the Homeland Security
Subcommittee on Transportation, Security and Infrastructure
Protection and serves on the Judiciary and the Foreign Affairs
Committee and, in fact, is a Member of our Subcommittee. She is
a leader in the immigration debate and is also the author of
H.R. 750, the ``Save America Comprehensive Immigration Act of
Congresswoman Jackson Lee received her bachelor's degree
with honors from Yale University and her Juris Doctor degree
from the University of Virginia.
Before her election to Congress in 1994, she served on the
Houston City Council and was an associate municipal court
Congresswoman Jackson Lee is married to Dr. Elwyn C. Lee,
and they have two children: Erica, a graduate of the University
of North Carolina and Duke University, and Jason, a 3rd-year
student at Harvard University.
Welcome, Congresswoman Jackson Lee, for your statement.
TESTIMONY OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Ms. Jackson Lee. Thank you very much, Madam Chairwoman and
to the Ranking Member.
And my son will not let me rest without saying he has
graduated, and I want to----
Ms. Lofgren. Oh, I was misadvised. Congratulations to you
and your proud family.
Ms. Jackson Lee. Only because you have to deal with young
But let me thank you very much and thank the Chairman of
the full Committee and the Ranking Member of the Committee as
I do want to acknowledge, Madam Chairwoman, that the basis
of this Committee is that we adhere to the law, and I thank you
for your leadership on this. We recognize that this is a Nation
of laws, but we also recognize that it is a Nation of
immigrants as well.
The Committee memorandum notes that we started with 15 ICE
teams in 2005 and we now are looking to 104 in 2008. Committee
memorandum also indicates that we had a deportation rate in
2002 by these ICE raids of 485 and now we are up to 4,000.
And I think what it says is that--the question is whether
or not these are the appropriate methods that can really get us
to the question of law enforcement and the issue of
comprehensive immigration reform. It seems that it cannot.
And so I raise the points regarding the issues that have
occurred in Houston, Texas, in particular Shipley Do-Nuts,
which is a family-owned chain that has been catapulted into a
highly controversial debate when Federal agents raided the
company's Houston headquarters and arrested 20 suspected
undocumented immigrants employed at the facility.
On Wednesday, April 17, 2008, Immigration and Customs
Enforcement agents in a caravan of 50 vehicles, detention vans
and an ambulance, swarmed Shipley's office and warehouse
complex on North Main Street at 5 a.m. A government helicopter
circled overhead as the Shipley workers were led away in
handcuffs to face civil charges of being in the country
The Houston raid took place at the same time ICE raids
conducted--ICE agents conducted raids of chicken-processing
plants in Texas, Arkansas, Florida, West Virginia and
Tennessee. Apparently, the Administration believes that this is
the method toward comprehensive immigration reform.
I believe that these raids are the pathway to potential
violence, the arresting of minors and pregnant women, and their
wrong-headed and misdirected approach to go forward on the idea
of ensuring border security and the security of all Americans.
In essence, we are shutting down small businesses,
restaurants, construction sites, not because we believe that
the workers that are there are the only workers. We are very
much supportive of the working of American people. But if you
listen to the small businesses and construction companies and
restaurants across America--and processing plants--this is, as
I indicated, wrong-headed.
Shipley Do-Nuts had its share of problems. Its own employee
filed a discrimination lawsuit. It was a place that was well
known. Individuals could have been arrested in a far different
manner, but the ICE agents chose to use a cowboy-style ICE
After the raid in the Shipley Do-Nuts in Houston, Action
Rags USA was raided. Approximately 70 percent of the 166
detained workers--about 116 workers--were women, including 8
pregnant women, in the Action Rags USA plant raid on June 25,
2008. Many of those workers were detained by ICE, though at
least 73 have been released for humanitarian reasons, and some
were documented individuals.
The vast majority of these women were caring for children
and had families. It is shocking to imagine that, on that
fateful day, many children returned home to empty homes and
apartments wondering where their mothers would be. Equally
appalling, the pregnant workers were subject to stress and
anxiety of arrest and detention when their own health and well-
being is critical to the health and development of their baby.
The chaos and fear of the aftermath of the raid caused
injuries. Four women sustained injuries that required immediate
medical attention, including one women that required an
immediate life flight by helicopter to a nearby hospital, as
she was so fearful of the raid and the ensuing chaos that she
climbed on a stack of wooden pallets and fell 20 feet to the
The detainees in both raids were of Mexican and Central
American decent. The raid on Action Rags USA resulted in
detention of 138 Mexican, 12 Honduran, 8 Guatemalan and 8
The Shipley Do-Nuts raid resulted in the detention of men
from Mexico, Honduras, Nicaragua and El Salvador.
In both raids, youth were detained. The Shipley Do-Nuts
raid resulted in detention of one youth, who was placed in the
care of Catholic charities and allowed to attend school until
ICE could secure deportation papers.
Two youths were detained in the raid on Action Rags USA.
One of the youths, a rising high school senior, worked at
Action Rags USA as a summer job and had only been employed from
1 week prior to the raid and was also under the Dream Act
legislation. He is now awaiting deportation and will be
deported before he is able to achieve his high dream of a high
Assistant U.S. Attorney Doug Davis said the fact that 85
percent of company workers of the plant were undocumented was
suspicion to show a conspiracy fraud. U.S. Magistrate Frances
Stacy ruled there was evidence to support Federal conspiracy
charges against the owner and three managers, saying that they
knew undocumented workers were hired, but it has been proven
that the owner had been at the plant only 1 hour and 57
minutes. Valerie Rodriguez, 34 years old, was described by
government officials as a company resource manager; however, it
was reported that Ms. Rodriguez was nothing more than a
In conclusion, Madam Chairwoman, let me simply say that
this gives a litany of false starts, raid-like activities that
create the potential for violence. It does not speak to the
issue of comprehensive immigration reform, which my legislation
speaks to, which provides for additional detention space,
increased border patrol agents, enhancing border patrol
training, establish immigration, customs and agriculture
inspector occupations, reestablish the border patrol
antismuggling unit and establish criminal investigator
occupations within the Department of Homeland Security,
increase border patrol agent investigator and other types of
aspects that can bring about real comprehensive immigration
This is a dangerous approach, it is a sad approach, it is
an unworkable, and I hope that we will ask the president of the
United States to take the bully pulpit and lead us toward
comprehensive immigration reform.
I thank the gentlewoman.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
I would like to thank Chairwoman Zoe Lofgren from California and
Ranking Member Steve King from Iowa for holding this very important
hearing on the recent immigration raids in Houston, Texas and across
this great nation. Chairwoman Lofgren has continued to bring relevant
and timely hearings and continues to work for comprehensive immigration
reform. For this she should be applauded.
As a senior Member of the House Judiciary Committee and the former
Ranking Member of the House Subcommittee on Immigration, it is of the
utmost importance that we thoroughly investigate the raids that took
place at Shipley Do-Nuts and Action Rags USA by ICE officials. Both of
these raids occurred in my district of Houston, Texas.
I. SHIPLEY DO-NUTS
Shipley Do-Nuts is a family-owned chain that has been catapulted
into a highly controversial debate when federal agents raided the
company's Houston headquarters and arrested 20 suspected illegal
immigrants employed at the facility.
On Wednesday, April 17, 2008, Immigration and Customs Enforcement
(ICE) agents--in a caravan of 50 vehicles, detention vans and an
ambulance--swarmed Shipley's office and warehouse complex on North Main
Street at 5 a.m. A government helicopter circled overhead as the
Shipley workers were led away in handcuffs to face civil charges of
being in the country illegally.
The Houston raid took place at the same time ICE agents conducted
raids of chicken processing plants in East Texas, Arkansas, Florida,
West Virginia, and Tennessee. In all, 290 workers were arrested during
raids at Texas-based Pilgrims Pride plants on suspicion of identify
theft, document fraud and immigration violations, the agency said.
ICE officials have released few details of the Shipley
investigation, saying only that it would continue. The undocumented
workers arrested Wednesday face deportation.
The Shipley raid centered on its 140,000-square-foot warehouse,
processing plants and office complex. It is part of a four-block
compound the company operates at 5200 North Main, where doughnut mix
and other fillings are made for many of the 86 Houston-area locations.
The site includes at least five trailers and 14 small homes. The
neatly maintained properties sit behind cyclone and barbed-wire fencing
used by some Shipley employees.
The people caught in this raid were hard working people. ICE should
make certain that minors were not caught in this raid. And, if minors
were caught, ICE should ensure that these minors are returned safely to
Shipley Do-Nuts has been the subject of recent discrimination
lawsuits. Recently, in 2006, 15 workers filed a discrimination lawsuit
against the company, seeking damages for allegedly enduring daily
slurs, such as ``wetback'' and ``mojado'' while working at the
company's warehouse. Most of the allegations were filed against a
former plant manager, Jimmy Rivera, and two supervisors. The company
settled the lawsuit with the workers in February. The settlement terms
If Shipley Do-Nuts was hiring illegal immigrants it has a duty to
abide by the immigration laws. If Shipley is to blame, then we must
work to ensure that Shipley adheres to the law or faces stiff
II. ACTION RAGS USA
Within weeks of the Shipley Do-Nuts raid, on June 25, 2008, ICE
agents raided the Action Rags USA plant in Houston. In all, 166 of the
192 workers at the plant were undocumented.
Approximately 70 percent of the 166 detained workers, about 116
workers, were women including eight pregnant women. Many of those
workers were detained by ICE, though at least 73 have been released for
humanitarian reasons. The vast majority of these women were caring for
children and had families. It is shocking to imagine that on that
fateful day, many children returned home to empty homes and apartments
wondering when their mothers would return. Equally appalling, the
pregnant workers were subject to the stress and anxiety of arrest and
detention when their own health and well being is critical to the
health and development of their baby.
The chaos and fear in the aftermath of raids did cause injuries.
Four women sustained injuries that required immediate medical
attention, including one woman that required an immediate ``life
flight'' by helicopter to a nearby hospital as she was so fearful of
the raid and the ensuing chaos that she climbed on a stack of wooden
pallets and fell 20 feet to the ground.
The detainees in both raids were of Mexican and Central-American
descent. The raid on Action Rags USA resulted in the detention of 138
Mexican, 12 Honduran, 8 Guatemalan, and 8 El Salvadoran workers. The
Shipley Donuts raid resulted in the detention of men from Mexico,
Honduras, Nicaragua, and El Salvador.
In both raids, youths were detained. The Shipley Donuts Raid
resulted in the detention of one youth who was placed in the care of
Catholic Charities and allowed to attend school until ICE could secure
deportation papers. He was subsequently deported before finishing the
Two youths were detained in the raid on Action Rags USA. One of the
youths, a rising senior in high school, worked at Action Rags USA as a
summer job and had only been employed for one week prior to the Raid.
He is now awaiting deportation and will be deported before he is able
to achieve his dream of a high school degree. Assistant U.S. Attorney
Doug Davis said the fact that 85 percent of company workers at the
plant were undocumented was sufficient to show a conspiracy existed.
U.S. Magistrate Frances Stacy ruled there was evidence to support
federal conspiracy charges that Mabarik Kahlon, 45, owner of Action
Rags USA, and three managers knew undocumented workers were hired and
they had presented false work documents.
Four government informants, three who were paid a total of $13,200
along with immigration benefits will be a key part of the case. The
three paid informants were illegal immigrants planted at Action Rags
USA by ICE agents. Because the paid informants were given cash money
and documents allowing them to legally stay and work in the country,
there is a strong incentive for anybody to say what the agents want
them to say.
The ICE surveillance reports documented only one hour and 57
minutes in which Mr. Kahlon was at the plant. Mr. Kahlon is the owner
of several vitamin supplement companies, and may not have been actively
managing daily operations at Action Rags USA.
Among the persons arrested at Action Rags USA was 34 year old,
Valerie Rodriguez, described by government officials as the company's
resource manager. It was reported that Ms. Rodriguez was nothing more
than a secretary.
Both Mr. Kahlon and Ms. Rodriguez were released last week from
custody after posting bond. The judge denied bail for Cirila Barron,
38, one of two illegal immigrants ICE documents describe as company
managers at the plant.
Another undocumented worker, Mayra Herrera-Gutierrez, 32, was
denied bail. She was arrested for allegedly being an illegal alien and
working as a warehouse supervisor. There is evidence, however, that she
did not have the authority to hire and fire workers.
As members of the House Judiciary Subcommittee on Immigration, we
exercise oversight of ICE's actions. Shipley Do-Nuts is a family-owned
and operated business with a 72-year history in the Houston area, and
190 stores in several states.
I am concerned for the well-being of the employees that are being
detained and their families. I am concerned that the detainees be
treated fairly and are not denied counsel or their basic human and
civil rights. Lastly, I am concerned that these raids have
disproportionately focused upon the undocumented employees and the
employers largely have been left unharmed from these raids. I believe
that it is an injustice in the immigration system that the
``crackdown'' has been directed at the ``undocumented'' workers who are
working to support themselves and their families.
These raids demonstrate that Congress must pass comprehensive
immigration reform. I have long advocated for comprehensive immigration
reform. Indeed, in December 2007, I introduced, HR 750, Save America
Comprehensive Immigration Act of 2007. This bill would provide for
comprehensive immigration reform.
Importantly, the bill authorizes DHS to adjust the status of aliens
who would otherwise be inadmissible (due to unlawful presence, document
fraud, or other specified grounds of inadmissibility) if such aliens
have been in the United States for at least five years and meet other
requirements. Additionally, it authorizes the emergency deployment of
Border Patrol agents to a requesting border state.
The bill also directs DHS to: (1) provide for additional detention
space for illegal aliens; (2) increase Border Patrol agents, airport
and land border immigration inspectors, immigration enforcement
officers, and fraud and document fraud investigators; (3) enhance
Border Patrol training and operational facilities; (4) establish
immigration, customs, and agriculture inspector occupations within the
Bureau of Customs and Border Protection; (5) reestablish the Border
Patrol anti-smuggling unit; (6) establish criminal investigator
occupations within the Department of Homeland Security (DHS); (7)
increase Border Patrol agent and investigator pay; (8) require foreign
language training for appropriate DHS employees; and (9) establish the
Fraudulent Documents Task Force.
This bill also sets forth unfair immigration-related employment
practices. Additionally the bill requires petitioners for nonimmigrant
labor to describe their efforts to recruit lawful permanent residents
or U.S. citizens.
As these investigations move forward I will make sure that all
issues are addressed surrounding this raid. This raid demonstrates the
importance of immigration reform. As members of Congress, let us work
together to resolve this matter and ensure that everyone's rights are
Ms. Lofgren. Thank you, Congresswoman.
Next, I am pleased to introduce my colleague from
California Congresswoman Lynn Woolsey.
Congresswoman Woolsey is currently serving her eighth term
as the representative of California's beautiful 6th District,
which includes all of Marin and most of Sonoma County.
As the Chairwoman of the Education and Labor's Workforce
Protection Subcommittee, she held a hearing earlier this year
on how immigration raids at workplaces impact children,
families and communities. Congresswoman Woolsey is also co-
chair of the Congressional Progressive Caucus, and we are
pleased to hear her testimony today.
TESTIMONY OF THE HONORABLE LYNN C. WOOLSEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Woolsey. Thank you very much.
Chairwoman Lofgren, Ranking Member King, Committee Members,
thank you for the opportunity to testify at today's hearing.
Congress has to play and does play a very important role in
ensuring that Immigration and Customs Enforcement--ICE--raids
are conducted humanely and consistent with protecting the human
needs of families and children, and I commend the Subcommittee
for this hearing and for your continued oversight.
The manner in which ICE raids are carried out can be as
important as when and where they take place. Unfortunately,
ICE's practice in my district have been neither humane nor
protective. Agents arrested parents right in front of their
children, creating widespread panic and resulting in 50 to 60
students leaving school for weeks at a time.
Despite the fact that nearly two-thirds of children with
undocumented parents are U.S. citizens, ICE has not developed a
consistent and comprehensive policy for dealing with children.
In fact, ICE's increasing reliance on home raids, which are not
covered by ICE's guidelines for humanely conducting workplace
raids, means that children are often left unprotected.
During home raids in my district conducted in March of
2007, some parents sent their children to school because they
believed they weren't safe at home. One little girl was told by
her mother to pack some essentials in her backpack and leave it
by the door. Then, if, when the girl returned from school, she
found that ICE had taken her mother, the little girl was
instructed to take the backpack and to go to her aunt's home.
Imagine--imagine what this child was thinking as she left for
school. Imagine what she felt when she was sitting in the
classroom. Try to imagine that little girl.
There is more, Madam Chair.
Earlier this year, ICE agents stopped a father in my
district walking his daughter to school at Bahia Vista
Elementary School in San Rafael, California. The father did not
speak English. So ICE agents asked the young girl, who was not
8 years old, to translate for him as ICE questioned her dad
about his immigration status. ICE later took this girl's father
away. Imagine how that child felt.
On May 20, as Chairwoman Lofgren told you, as the Chair of
the House Workforce Protection Subcommittee, I held a hearing
on how ICE workplace raids have impacted children and local
communities. At this hearing, a constituent of mine, Kathryn
Gibney, principal at the San Pedro Elementary School in San
Rafael, testified about how school officials cared for
frightened students during last year's raid and rode the buses
to make sure students didn't return home to empty houses.
Two days after the recent Subcommittee hearing, ICE agents
launched another raid in San Rafael. They say it was not
retribution. Ms. Gibney's school was again one of the schools
most impacted by the raid. ICE vans parked near school bus
stops, terrifying children as they left their parents and
boarded the school buses. That day, absentee rates at the
schools increased dramatically. One of the schools canceled its
open house plan for that evening out of fear for the safety of
parents and students.
Madam Chairwoman, Members of this wonderful Committee,
there are no more effective and humane ways to enforce our
immigration--are there are no effective and humane ways to
enforce our immigration laws other than through the raids that
terrify children and communities?
Senator Ted Kennedy and I have each sent letters to the
Department of Homeland Security discussing the need for a more
comprehensive policy to address the needs of children impacted
by ICE raids. I ask to submit these letters to the Committee.
Ms. Lofgren. Without objection, they will be made part of
Ms. Woolsey. And I need to tell you that neither of us has
received a response from ICE.
We can no longer, Committee, wait to address the impacts
these raids are having on families and children, many of whom
are in the U.S. legally, many of whom are U.S. citizens. It is
unacceptable that home raids for children are more likely to be
impacted do not have a strong protection for children nor are
they covered by the guidelines for humanely conducting ICE
raids. Who, if not children, deserve humane treatment?
Thank you very much.
[The prepared statement of Ms. Woolsey follows:]
Prepared Statement of the Honorable Lynn C. Woolsey, a Representative
in Congress from the State of California
Chairwoman Lofgren, thank you for the opportunity to testify at
today's hearing. Congress has a necessary role in making sure that
Immigration and Customs Enforcement (ICE) raids are conducted humanely
and consistent with protecting the needs of families and children, and
I commend the Subcommittee for its continued oversight.
The manner in which ICE raids are carried out can be as important
as when and where they take place. Unfortunately, ICE's practices in my
District have been neither humane nor protective. Agents arrested
parents right in front of their children, creating widespread panic and
resulting in 50 to 60 students leaving school for weeks at a time.
Despite the fact that nearly two thirds of children with undocumented
parents are U.S. citizens, ICE has not developed a consistent and
comprehensive policy for dealing with children. In fact, ICE's
increasingly reliance on home raids, which are not covered by ICE's
guidelines for humanely conducting workplace raids, means that children
are often left unprotected.
During home raids conducted in March 2007, some parents sent their
children to school because they believed they weren't safe at home. One
little girl was told by her mother to pack some essentials in her
backpack and leave it by the door. If she found ICE had taken her
mother when she returned from school, the little girl was to take the
backpack and go to her aunt's house. Imagine what this child was
thinking as she left for school.
Earlier this year, ICE agents stopped a father walking his daughter
to school at Bahia Vista Elementary School in San Rafael, California.
Her father did not speak English, and ICE agents asked the young girl,
not more than eight years old, to translate for him ICE's questions
about his immigration status. ICE later took this girl's father away.
On May 20, 2008, I chaired a hearing in the House Workforce
Protections Subcommittee on how ICE workplace raids have impacted
children and local communities. At this hearing, a constituent of mine,
Katherine Gibney, the Principal at the San Pedro Elementary School in
San Rafael, testified about how school officials cared for frightened
students during last year's raids and rode the buses to make sure
students didn't return to empty homes.
Two days after the Subcommittee hearing, ICE agents launched
another raid in San Rafael. Ms. Gibney's school was, again, one of the
schools most impacted by the raids. ICE vans parked near school bus
stops terrified children as they left their parents and boarded their
school buses. Absentee rates at the schools increased dramatically. One
of the schools canceled its Open House planned for that night out of
fear for the safety of parents and students.
Madame Chairwoman, there are more effective and humane ways to
enforce our immigration laws than through raids that terrify
communities. Chairman Edward Kennedy and I have each sent letters to
the Department of Homeland Security discussing the need for a
comprehensive policy to address the needs of children impacted by ICE
raids, and I ask to submit these letters for the record. Both of the
letters are awaiting a response. We can no longer wait to address the
impact these raids are having on families and children, many of whom
are in the U.S. legally and many of whom are U.S. citizens. It's
unacceptable that home raids, where children are most likely to be
impacted, do not have strong protections for children.
Ms. Lofgren. Thank you very much, Congresswoman.
Finally, I would like to introduce Congressman David Davis.
Congressman Davis represents the 1st Congressional District of
Tennessee that includes the 12 upper east Tennessee counties.
He serves on the House Committee on Education and Labor. He
is the Ranking Member on the Small Business Committee's
Subcommittee on Contracting and Technology, and he and I serve
together on the House Homeland Security Committee.
And we are very pleased to have you here to give us your
testimony, Congressman Davis.
TESTIMONY OF THE HONORABLE DAVID DAVIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TENNESSEE
Mr. Davis. Thank you, Madam Chairwoman, Ranking Member, and
Members of the Committee.
I appreciate the opportunity to testify before this
Committee on the effects illegal immigration has on communities
in Northeast Tennessee.
Also, thank you for your interest in the story of Lora
Costner, a constituent of the 1st Congressional District of
Tennessee and a resident of Cocke County, who will testify here
Illegal immigration places a heavy burden on our country
and on our taxpayers. No more a problem limited to the counties
along our borders, even Appalachia must face the threat to our
economy. Families in Cocke County directly suffer from the
effects of illegal immigration and our government's inability
to enforce our laws. I encourage this Committee to take Ms.
Costner's story of identify theft by an illegal immigrant as an
indication of just one of the many damaging effects of lack of
Many immigrants come to Hamblen County to work in the
poultry-processing industry. Much like the raid in Iowa
generated this hearing, the parent company of Hamblen County's
plant operation in Cincinnati, Ohio, and their Chicago
headquarters were subject to ICE raids. The illegal immigrant
who stole Ms. Costner's identity used the information to gain
employment at the Morristown poultry plant.
This hearing asks how we move forward with our immigration
policy in light of these raids and the poultry industry.
One of the best tools the Department of Homeland Security
has to enforce our immigration laws is the 287(g) program. This
program allows local law enforcement agencies to partner with
ICE on illegal immigration matters. ICE trains local law
enforcement in immigration law, and the local agency is given
the authority to enforce those laws.
Metro Nashville Davidson County, Tennessee, has been
operating under a 287(g) agreement for some time now. The
Nashville community has seen the benefits of the local law
partner shift through improvement in enforcement of our
You would be hard pressed to find a community who would
benefit more from such a partnership than Hamblen County and
Morristown, Tennessee. According to the University of Tennessee
study, Hamblen County has one of the fastest-growing immigrant
populations in the Nation. Hamblen County schools, hospitals,
roads and housing agencies are unable to keep up with the
The Hamblen County jail is overrun with citizens of other
countries with no U.S. immigration status. These individuals
are in Hamblen County illegally. If our immigration laws were
enforced, these individuals would be removed to their country
of origin and barred from reentry into the United States.
Unfortunately, the Hamblen County Sheriff lacks the
authority to enforce these laws. Hamblen County approached ICE
to participate in the 287(g) program. Citing lack of resources
and manpower, ICE could not agree to the partnership. It is
imperative that this Congress expand the 287(g) program to
allow any willing community to participate.
I am privileged to serve on the House Committee on Homeland
Security with oversight of the department and the Immigration
and Customs Enforcement Agency. In 2007, the Committee took up
legislation reauthorizing the DHS. I offered an amendment in
the Committee expanding this program that fell for a lack of a
majority on a 15-15 tie. The House Rules Committee, by a vote
of 8 to 4, refused to make this same amendment and order when
the bill moved to the House floor. I have introduced this
bipartisan amendment as a stand-along legislation that has been
referred to this Committee.
Also referred to this Committee is Congressman Shuler's
SAVE Act. This legislation would authorize increases to all
programs related to enforcement of our immigration law. One-
hundred-and-ninety Members of Congress have signed the
discharge petition to bring Congressman Shuler's legislation to
the floor. I would encourage action on this bill.
Finally, this Congress must again take up legislation
reauthorizing the Department of Homeland Security, giving
guidance to ICE on immigration policy and law enforcement.
Thank you again for the opportunity to testify here today,
and I will look forward to the testimony of Ms. Costner as
I yield back.
[The prepared statement of Mr. Davis follows:]
Prepared Statement of the Honorable David Davis, a Representative in
Congress from the State of Tennessee
I appreciate the opportunity to testify before this Committee on
the effects illegal immigration has on communities in East Tennessee. I
also thank you for your interest in the story of Lora Costner, a
constituent of the First Congressional District of Tennessee and
resident of Cocke County who will also testify here today.
Illegal immigration places a heavy burden on our country and our
taxpayers. No more a problem limited to those counties along our
borders; even Appalachia must face this threat to our economy. Families
in Cocke County directly suffer from the effects of illegal immigration
and our government's inability to enforce our laws. I encourage this
Committee to take Ms. Costner's story of identity theft by an illegal
immigrant as a indication of just one of the many damaging effects of
lack of immigration enforcement.
Many immigrants come to Hamblen County to work in the poultry
processing industry. Much like the raid in Iowa generating this
hearing, the parent company of the Hamblen County plant's operation in
Cincinnati, Ohio and their Chicago headquarters were subject to ICE
raids. The illegal immigrant who stole Ms. Costner's identity used that
information to gain employment at the Morristown poultry plant.
This hearing asks how we move forward with our immigration policy
in light of these raids on the poultry industry. One of the best tools
the Department of Homeland Security has to enforce our immigration laws
is the 287(g) program. This program allows local law enforcement
agencies to partner with ICE on illegal immigration matters. ICE trains
local law enforcement in immigration law and the local agency is given
authority to enforce those laws. Metro Nashville/Davidson county
Tennessee has been operating under a 287(g) agreement for some time
now. The Nashville community has seen the benefits of the federal/local
partnership through improved enforcement of our immigration laws.
You would be hard pressed to find a community who would benefit
more from such a partnership than Hamblen County and Morristown,
Tennessee. According to a University of Tennessee study, Hamblen County
has one of the fastest-growing immigrant populations in the nation,
Hamblen County's schools, hospitals, roads, and housing agencies are
unable to keep up with the trend. The Hamblen County jail is overrun
with citizens of other countries with no U.S. immigration status.
These individuals are in Hamblen County illegally. If our
immigration laws were enforced these individuals would be removed to
their country of origin and barred from re-entry into the United
States. Unfortunately the Hamblen County Sherriff lacks the authority
to enforce these laws.
Hamblen County approached ICE to participate in the 287(g) program.
Citing lack of resources and manpower, ICE could not agree to the
partnership. It is imperative this Congress expand the 287(g) program
to allow any willing community to participate.
I am privileged to serve on the House Committee on Homeland
Security with oversight of the Department and the Immigration and
Customs Enforcement Agency. In 2007 the Committee took up legislation
reauthorizing DHS. I offered an amendment in Committee expanding this
program that failed for lack of majority on a 15-15 tie. The House
Rules Committee by a vote of 8-4 refused to make this same amendment in
order when the bill moved to the House floor. I have introduced the
amendment as standalone legislation that has been referred to this
Also referred to this Committee is Congressman Shuler's SAVE Act.
This legislation would authorize increases to all programs related to
enforcement of our immigration laws. 190 Members of Congress have
signed the discharge petition to bring Congressman Shuler's legislation
to the floor. I would encourage action on this bill.
Finally, this Congress must again take up legislation reauthorizing
the Department of Homeland Security giving guidance to ICE on
immigration policy and law enforcement.
Thank you again for the opportunity to testify here today and I
look forward to the testimony of Ms. Costner.
Ms. Lofgren. Thank you very much, Mr. Davis.
And thanks to all four of our colleagues. We do understand
that Members have multiple hearings and markups going on. We
hope to ask you questions, but if you are called to another
hearing, we understand because we have all been in that spot,
and just let us know if that happens to you.
We will begin our questioning at this point, and I will
Congressman Braley, this is basically your hometown where
all of this happened, and I am interested in--in the case of
the Postville raid, it is--well, I have got the letters, I
mean, from ICE and Department of Labor, and they just say
diametrically different things. ICE says that the DOL knew
about the raid, and DOL says no they didn't.
And so it appears--and as a matter of fact we have that
reaffirmed verbally by DOL today that they knew nothing about
So what happens to the DOL investigation into the labor
violations that may have been present at the Agriprocessors
plant? It seems to me that, if we have prosecuted the
individuals--the workers--who were there, they are in jail or
in prison, and then they are going to be deported, how can they
be witnesses to--on--I assume--the case that was to be brought
against the employer?
Are you concerned that this action has jeopardized the DOL
investigation and possible prosecution of the labor-law
violations that have been alleged?
Mr. Braley. Well, yes, I am. That is one the reasons I have
been asking for these answers.
And just for the record, while the hearing has been
proceeding, I just received word from my office that we have
been informed that a fax was received from the Department of
Labor's Office of Inspector General, which confirmed they were
given verbal notice--the OIG of the Department of Labor--prior
to the May 12 raid and encouraged to be present--just the OIG,
not the Wage and Hour Division--and they were specifically
instructed not to inform the Wage and Hour Division that the
raid was pending.
And the reason I am concerned is because, given the short
amount of incarceration periods under the plea agreement, given
the fact the deportations are scheduled to occur as soon as
those short sentence are completed, and given the language
barrier for many of the key witnesses to these workplace safety
violations, it seems to me it is going to be very difficult for
the Department of Labor investigation to get the best evidence
And when you look at the history of workplace safety
violations at this company and the fact that after certain
agreements have been entered into, there have been repeat
violations discovered by the Iowa Department of Labor of the
very conditions that were supposed to be mitigated, I have very
strong concerns about the impact of the ongoing investigation.
And when you add that to the child-labor issues, then it is a
very serious concern.
Ms. Lofgren. We will find out later from other witnesses
perhaps, but we don't know how many of the employees have been
deported so far and whether there has been an effort to
maintain their presence in the United States as material
witnesses to this other investigation.
I know that you have been trying to do the best thing for
your constituents. Have you been advised about that?
Mr. Braley. Well, most of the information I get, quite
frankly, comes from news reports. Senator Grassley and I both
were aware of what was going on at the Cattle Congress before
the raid was carried out. We were informed that there was a
training exercise involving ICE and other Federal agencies and
received no prior notice of what was going on.
But one of the things we do know is that there has been a
report that nine people have been deported under contract with
a private plane service, and we know that there are many people
being housed or incarcerated right now in county jails and in
Federal detention facilities in Iowa and other Midwestern
states. So the very nature of how the incarceration is being
carried out makes it difficult to find witnesses in a central
location as they would be if they were in the workplace.
Ms. Lofgren. I will just--before turning this over to the
Ranking Member--note that it is disturbing to hear that ICE
notified the IG of the Department of Labor. That tells me they
knew that there was an ongoing Department of Labor
investigation about violations, including child labor, at this
plant. But to tell the IG and not the Wage and Hour Division
insured that there would not be a presence there, and it is
almost as if ICE intended to disrupt the investigation--and
potentially prosecution--of this company for violations of the
You know, when we enforce the law as a government, we are
also required to live by the law. And I wonder in this case
whether that is really what occurred here or whether there was
an active involvement to really cover up and prevent the
enforcement of the labor laws on the part of the Department of
the Homeland Security. It is a very disturbing piece of
My time has expired.
I would now turn to the Ranking Member for whatever
questions he may have.
Mr. King. Thank you, Madam Chair.
And I thank all the witnesses.
And, you know, Iowa's not used to being in the spotlight,
not for natural disasters and not for immigration issues, but
those things have emerged in the last few years. And so I would
just turn to my colleague, who is a member, of course, of the
Iowa delegation, and say, first off, I agree with you on the
principle that you emphasized here that we need to enforce the
law against employers as well. And I am curious about how we
will get there and get that done.
I would point out that the point was made earlier today
that we do pass the laws here, as the Chairman of the full
Committee said, and we review them, but in the end, it is the
executive branch that enforces the law, and I have been in the
business over the last 5\1/2\ years of seeking to encourage
them to do so.
I don't know that this hearing encourages enforcement of
the law. I think it actually works in a counterproductive
fashion because the tone has to be intimidating to the ICE
But I take this point is that one of the thing that ICE was
concerned about, I believe, and--is that their communications
with the Department of Labor might have provided a leak that
could have warned the plant that there was a raid.
And so I would suggest we have two things going on. One is
we are concerned that this kind of information will leak out to
perhaps local officials who would then tip off the plant or
maybe another department of the government.
We have another problem. The Social Security Administration
doesn't know what the Department of Homeland Security is doing
and neither do other departments of government, like a company
that has divisions that don't communicate with each other.
So I would ask you if--I mean, I have proposed a piece of
policy, Mr. Braley, that recognizes this: That I think, when an
employer knowingly and willfully hires illegals, that they
should not be able to deduct the wages that they pay or the
benefits they pay from their income tax. And I believe we can
allow them to protect themselves and give them safe harbor if
we let them use E-Verify.
And then we should allow the IRS to come in, when their
normal audit, run the Social Security numbers of those
employees through the E-Verify. If the employer knew or should
have known that they were illegal, they should then be denied
deductibility of those expenses. And I would ask you if you
agree if that would be a way that we could add to a way we
could enforce the law?
Mr. Braley. Well, I think we certainly need to have much
stricter enforcement sanctions against employers who knowingly
violate the law. And this employer is a perfect example of that
Mr. King. Would you allow them to deduct the wages that
they paid to illegals?
Mr. Braley. It is one of those issues that we have to be
looking and talking about because, in this case, many of the
workers were denied checks that they had earned because they
had been deported and weren't available, and that is one of the
things the Wage and Hour Division had to get involved in.
And in this particular case, this employer was involved in
a labor dispute in 2000 in its Brooklyn, New York, facility and
Ms. Lofgren. Let our colleague answer, if you would----
Mr. King. I just think he misunderstood my question. He is
on the other side of my question, and I want to make sure our
time is used in a fashion here that is prudent.
But I yield the gentleman. I can restate the question if I
Ms. Lofgren. The gentleman will proceed.
Mr. Braley. I think that there are a host of different
enforcement actions, including the one you are proposing, that
need to be considered as a way of getting the point across to
employers who are exploiting workers for their profit, yes.
Mr. King. I thank you very much for that response. And it
is a direct one, and that is the way we talk in the Midwest,
just nice and directly.
So in another direct fashion here, as I review your
testimony and you reference undocumented workers, and I would
ask you directly, those who have pled guilty and--of which, by
the way, of those who were rounded up in that raid, 62 were
released for humanitarian reasons so they had children to take
care of, and so I wanted to make that point.
But of those who have pled guilty then--do they then
transition from undocumented workers into illegal aliens or
Mr. Braley. Well, once they have pled guilty to a charge
after due process, they become identified however the law
classifies them, yes.
Mr. King. Which would be illegal aliens or criminal aliens
depending on the case of the conviction?
Mr. Braley. Well, to me a criminal is a criminal no matter
what their naturalization status is. If you plead guilty to a
criminal offense in this country, then you are deemed to have
been convicted of a criminal offense.
Mr. King. And then they are criminals?
Mr. Braley. Yes.
Mr. King. I thank you, Mr. Braley.
And I turn to Mr. Davis, and I know that, coming in out of
this from Tennessee you advocated strongly for a 287(g)
program. You have been blunted at every effort to do that. I
encourage you to keep trying and I--the resources--local law
enforcement and their cooperation are in short supply. What is
your sense when you promote 287(g)? Is there pushback?
Mr. Davis. There is not pushback at the local level. There
is not pushback at the state level. There is pushback at the
Federal level, most of my colleagues, unfortunately.
I can tell you, though, this is a bipartisan approach. When
I introduced legislation to bring the amendment to the floor,
the first thing I did is reached across the aisle, had one of
my fellow Members who is a Democrat on the Homeland Security
Committee introduce the legislation with me. So I am trying to
not make this a partisan issue. Trying to make this an American
I can tell you--this is coming directly from the sheriff of
Hamblen County and from the chief of police in the city of
Morristown--they want some help. The odds of finding a Federal
agent on street corners across America are very slim. The odds
of finding a member of a sheriff's department or a police
department in local communities are there, they are high, they
know what is going on in their local communities, and I would
encourage us to use our local law enforcement.
Ms. Lofgren. The gentleman's time has expired. And we have
been notified that we will have a series of votes sometime in
the next half hour so we will lose this panel, no doubt, at
that vote time. I am going to ask people to be as brief as they
And Mr. Conyers, the Chair of the full Committee, is
invited to ask any questions he may have of our colleagues.
Mr. Conyers. Well, one thing is clear, that we don't have
much cooperation between the organizations in the government,
between Homeland Security, between the Department of Labor and
others. And I guess that works to everybody's detriment.
There was in 1982 a memorandum of understanding between the
Immigration and the Wage and Hour Division that was signed to
mandate cooperation and notification. And so that apparently
isn't working too well, and we need to do a little bit more
But over and above that, there is a spirit of meanness that
seems to underheard this massive raid that went on in the
congressman's area, and I am trying to figure out if there are
ways that we and Judiciary can, first of all, get more
cooperation and understand what the process is. I mean, this
was a fantastically expensive undertaking, and it may have
blown the Wage and Hour issue that the Labor Department may be
taking up if you have deported these folks out of the country.
Is that the case? Do I understand this right? I will ask
our distinguished witnesses here.
Mr. Braley. Well, Mr. Chairman, that remains to be seen,
and that is why I am continuing to push for further
clarification from Department of Labor, from the Justice
Department and from ICE.
And one of the concerns that I raised, based upon the
history of labor violations and workplace safety violations at
this employer, is because we know that building a case against
employers according to the Department of Justice takes time,
and that is why they apparently have not issued any indictments
against the owners of this company and others in key management
positions. That is the response we are getting, that the
investigation is billed.
And the same thing is true in a workplace safety
investigation. And if you remove key witnesses who may have
information about violations, it could definitely compromise
Ms. Jackson Lee. Chairman, if I might, the question you
asked, whether this is an effective manner of immigration
reform of enforcement, we see that we have gotten only 4,000 of
those deported out of the ICE raids that have occurred and now
with 114--and they are particularly mean.
The two individuals in Texas who were citizens were
surrounded at their homes in the early morning. They were taken
to a detention center. Their families were told that they could
be bonded out. They are grounded in the community. They are not
flight risks. They never got bonded out, and they were brought
the next morning with cameras, with leg irons, with waist irons
and cameras and a great display.
This is, I believe, ineffective and pricey as it relates to
ICE duties, and what happens is criminal undocumented aliens
who wind up creating tragedy, are going uncaptured, and I think
that is where our efforts should be along with comprehensive
Mr. Conyers. Well, I am not enamored by my friend Steve
King telling me how many people took a plea. Those of us with
experience in the criminal justice system, you can end up
taking a plea, when you are faced with either 6 months or you
get the maximum, buddy, take your choice, and you have got a
language problem, maybe, to boot, you have appointed counsel,
interpreters--we don't know where they are. Some of the
language problems even go beyond Hispanic. There were some
people with Indian and Hispanic backgrounds. So I don't feel
that that is some determination of guilt at all under those
Do you agree with that, Steve?
Mr. King. No, I don't, Mr. Chairman.
Mr. Conyers. I didn't think you would. [Laughter.]
Ms. Lofgren. The Chairman's time has expired.
We would now turn to the Ranking Member of the full
Committee, Mr. Smith, for any questions he may have for our
Mr. Smith. Thank you, Madam Chair.
I really have just three very brief questions that I hope
can be answered yes or no.
And, Congressman Davis, let me start with you and work
across the panel.
The first is do you think employers should check to see
whether new employees can legally work in the U.S. or not?
Mr. Davis. Absolutely. That is the only way we can deal
with this is internally and on the borders.
Mr. Smith. Okay.
Ms. Woolsey. Well, yes. Except I think it is up to us to
make sure that the information they gather is accurate. I mean,
we have a system that can't even get people through Immigration
and get two people in one family so how----
Mr. Smith. I agree----
Ms. Woolsey. It does no good to give false information to
Mr. Smith. Okay.
Congresswoman Jackson Lee?
Ms. Jackson Lee. Yes, Mr. Ranking Member. But I also want
you to know that the owners of, in particular, Rags USA,
checked the documents that they were given, used the system
that was in place and got no pushback on the documentation. We
need to fix a broken system.
Mr. Smith. Congressman Braley?
Mr. Braley. I would agree with the remarks of my
Mr. Smith. All three?
Mr. Braley. Yes.
Mr. Smith. Okay.
Next question is this: Do you think illegal immigrants--
start again with Congressman Davis. Do you think illegal
immigrants take jobs away from American workers or depress
their wages because of competition?
Mr. Davis. Yes, I do.
Mr. Smith. Congresswoman Woolsey?
Ms. Woolsey. I don't believe they take jobs away because in
my district, for example, they take jobs that other people will
not do. But I think wages become depressed when we don't have
labor laws that cover our low-paying workers.
Mr. Smith. Okay. Thank you.
Ms. Jackson Lee. I think if you ask the construction
industry and the restaurant industry and a lot of other
industries, they are in essence being shut down because of
their lack of work to the agricultural industry.
I think we have a commitment--an obligation--to hire
America first, but at the same time, I think we have a
commitment to provide an employment stream, if you will,
legally with comprehensive immigration reform for all those
industries that have come to the Congress and say they are
Mr. Smith. Congressman Braley?
Mr. Braley. I think I would give a qualified yes in that,
as a general principle, it is true, but that you also have
differences in growth populations among states and differences
in job opportunities. You have a state like Iowa, which Mr.
King and I represent, there were four casts that were going to
have a labor shortage in the future because of the baby boomers
retiring and so we are looking at workplace needs, and that is
why a state like Iowa historically has depended upon immigrant
populations to meet its labor needs. We have to look at
comprehensive reform so that we can make sure we are bringing
the workers in we need to fill those.
Mr. Smith. Thank you.
Congresswoman Jackson Lee actually anticipated my next
question, which is this--and I will start on the right again--
do you think American employers should hire American workers
before they hire foreign workers?
Mr. Davis. Yes, no doubt.
Mr. Smith. Okay.
Ms. Woolsey. Yes, if there is available American workers.
Mr. Smith. I understand and I assume that they would be
Ms. Jackson Lee. Mr. Ranking Member, as you well know, we
worked on this issue absolutely, and we should reach out to
populations here in the United States and at the same time,
however, provide the comprehensive immigration reform to
provide the streams of labor that we need in this country.
Mr. Smith. Thank you.
Mr. Braley. I would agree with those remarks.
Mr. Smith. Okay.
Thank you, Madam Chair.
Actually, I will yield the balance of my time to the
gentleman from California, Mr. Gallegly, because I think we are
getting ready for a vote.
Mr. Gallegly. Thanks very much, Mr. Chairman.
Ms. Jackson Lee, later today we are going to hear from a
person who is trying to get her life back together after her
identity was stolen by an illegal immigrant. What would you say
to our own citizens who have been rightfully prosecuted for
identity theft and given strong prison sentences if we were to
give amnesty to illegal immigrations for the same act?
Ms. Jackson Lee. Well, I don't think anyone who has
perpetrated a crime should be relieved of the responsibility.
So I believe, in fact, with you, Mr. Gallegly, that I would
much prefer ICE enforcement agents going after direct criminal
Mr. Gallegly. So you believe that illegals should be
Ms. Jackson Lee. Direct criminal actions by undocumented,
not mistaken. On the other hand, I think they are wasting time
by raids that generate no relief.
I would like to have the individual who created the tragedy
in San Francisco arrested. The individual who, unfortunately,
killed an officer in Houston arrested. I don't think we are
getting to that direction by these raids.
Mr. Gallegly. One last question to you, Ms. Jackson Lee.
You stated very appropriately--and I think articulately--
that you believe we are a Nation of laws and we should continue
to focus on being a Nation of laws, and your concerns towards--
and I don't mean to be paraphrasing--some of the means of
deportation has been done in an inhumane way and subjecting
children and innocent people to harm; is that not correct? It
is something--yes or no--it is something to that effect?
Ms. Jackson Lee. They have been roughshod raids, yes, sir.
Mr. Gallegly. Okay. Okay. Let me ask you this: Would a more
humane way be--we currently have a database of over 10.5
million people that are working in this country with an illegal
Social Security card. Would it not be more humane to send a
notice to the employer--by the way, the employer has the name,
address, phone number and shoe size of the employee, as does
the Social Security service of the employer and the employee.
Should we not be sending a notice to the employer to either
clarify that they have the right number or terminate that
person immediately without an officer going out there to do it,
if they don't, $1,000 a day fine until they do, and then at the
same time the employer that has been terminated must do E-
Verify before he could get a job somewhere else? That being the
case, we would probably have 90 percent of the illegal
immigration problem solved except for those that are working
underground. And then we could go to work and find out what the
unmet domestic need is and find a legal way to do it.
But would you agree that that would be a very humane way to
do it, send letters out and enforce the law under the employer-
sanction provision of the 1986 IRCA law?
Ms. Jackson Lee. I think most employers, Mr. Gallegly,
would agree with you, a consistency in documentation. In fact,
when I spoke to these owners, they said they thought they were
following E-Verify, they though there was a process. At the
same time, we have a pending comprehensive immigration bill,
and I do think we need to find a way to address this question
in that manner as well.
Mr. Gallegly. With all due respect, I have to respectfully
disagree that most employers do not believe that, or they would
be using an E-Verify program that is 10 times simpler to use,
if not 100 times simpler, than the I-9 form that takes a 21-
page booklet to fill out. It is an ``I don't know and I don't
want to know because, if I know, I am going to lose 90 percent
of my employees.''
I yield back.
Ms. Jackson Lee. Employers that I spoke to said they would
like to use it.
Ms. Lofgren. Just FYI, through misunderstanding, the
gentleman was given 5 minutes by the clerk, when you yielded,
so if you want to take the remainder of your time, you should
You are through. Okay.
Mr. Gallegly. [Off mike.]
Ms. Lofgren. Okay. Very good.
I will turn now to our colleague, Mr. Gutierrez.
Mr. Gutierrez. First of all, I want to thank the gentlelady
Chairwoman for conducting this hearing. As she knows, we have
been working closely together. We will be visiting Postville
this Saturday with other members of the Hispanic Congressional
Caucus because we think it is important to go and examine all
of the different aspects of this raid, including the human
tragedy, which has befallen Postville.
So I would like to thank everyone for their testimony and
all of my colleagues for coming this morning.
And I would like to say that, as we have this debate, for
those of you who aren't on the Judiciary Committee, you can see
part of the debate that we have here. I find it interesting
that my colleague Mr. Braley was asked whether or not there
should be an IRS sanction against an employer who has wages. It
is interesting when the other side says--one side's ``Criminal.
Send them to jail,'' and other side, ``Let us do an accounting
procedure. An IRS thing. Don't let them deduct it from the
Other people get ripped asunder from their children, from
their spouses. The employer, give them an IRS thing that they
can't make a deduction. That is pretty simple, but it doesn't
surprise me because it is very clear to me that the
undocumented workers don't have the kind of power and
influence. They obviously don't have political action
committee. They don't make campaign contributions. They are not
in a position of power, as many great Agriprocessors are in a
position of power, to influence the debate that we have here in
Congress. So it really doesn't surprise me.
But I think that we have to have a real discussion.
Mr. Braley, do you know anything about the cost of this?
Have you looked into the cost of this raid at Postville?
Mr. Braley. Absolutely. One of the biggest issues in
immigration reform is what it is going to cost to carry out the
planned deportation that was under consideration of anyone in
this country illegally.
And because this Postville raid has been represented as the
largest single-site immigration raid in U.S. history, I have
requested from all related Federal agencies to provide me with
a complete accounting of the cost of the investigation, the
apprehension, the detention, the prosecution, and the
incarceration associated with this one single raid of 400
employees in the workplace. I have received nothing in response
But I have also asked for similar information about the
Swift raids that were carried out in Marshalltown, Iowa, just a
year and a half ago. I think it will give us all some insight
into what we are talking about when we are looking at the
problem that everyone has been talking about on the panel.
Mr. Gutierrez. There have been estimates given of upwards
of $40 billion to begin this process, not to totally complete
the process but to begin the process.
But if the congressman were ever to receive that
information and--I am sure the Members of this Committee would
be very, very appreciative to him for getting us that
information because I think it goes kind of to the crux of the
We have--Homeland Security and I--and I know that the
Chairwoman sat across the street from Mr. Chertoff, and he
negotiated with us because he said to us, ``Our immigration
system is broken.'' That is what he said to me. That is what he
said to Members of Congress, as he, the secretary of Homeland
Security came down here to negotiate with us a comprehensive
immigration reform. He said it is broken; it is bad.
His boss, the president of the United States, said publicly
the system is broken and people are being denied basic human
rights, they are being exploited, we need to bring them out of
the shadows, we need to bring them into the light of day. This
is the president of the United States, who, through his
ambassador, Secretary Chertoff, came to me and other Members of
this Committee and Members of Congress and spent nearly 6
months negotiating--or attempting to negotiate--a
So what I find so astonishing about this is they say one
thing and then they do the other. They take most of their
capacity of Homeland Security, which I thought was to protect
us against terrorists, smugglers, drug dealers, people who are
going to do harm to me, my family and my community, and you
know what they do? They hoodwink us. Because now, as the
minority so clearly stated as they asked you ``Are they
criminals?'' Yeah, technically they are criminals now because
here is the plea agreement--I want to follow up with the
Chairman--here is the plea agreement. This is what they had to
plead to because of criminals.
They said, ``If you plead guilty to the charge of knowingly
using a false Social Security number, the government will
withdraw the heavier charge of aggravated identity theft, and
you will serve 5 months in jail, be deported without a hearing,
and placed on a supervised release for 3 years.'' Okay.
But what if you don't? ``If you plead not guilty, you could
wait 6 to 8 months''--that is 3 months more than we are
offering you--``without right to bail''--because you are
immigration detained. ``If you win at trial, you will still be
deported--waiting longer in jail than if you plead guilty, and
you would also risk receiving at trial the 2-year minimum
I mean, this is what this is really about. What our
government did in Postville to people who were working is that
they charged them with aggravated identity theft, which means
they must have knowingly, with premeditation taken that
identity to do what? Commit a serious crime.
Ms. Lofgren. The----
Mr. Gutierrez. What crime did they commit? They applied for
a job. That, the last time I checked, is not an aggravated
And so I think--and I am--I think that that is really the
crux of the matter here is are we safer today
Ms. Lofgren. The----
Mr. Gutierrez [continuing]. Because they locked up 300
Ms. Lofgren. The gentleman's time----
Mr. Gutierrez [continuing]. In Postville? I think not. I
don't feel safer. As a matter of fact----
Ms. Lofgren. The gentleman's time----
Mr. Gutierrez [continuing]. I feel ashamed of the Nation.
Ms. Lofgren. The gentleman's time has expired, and we have
just gotten, I think, our--is it the 10-minute notice? All
Then we will take 5 minutes for Mr. Lungren, and I think we
probably will not be able to get to our remaining two Members,
but we will return after the vote.
Mr. Lungren. Thank you very much, Madam Chair.
This is a most interesting hearing. Having been here in
1986 as the Ranking Republican on immigration and having
obtained the Republican votes to have the largest single
legalization in the history of this Nation, I also recall we
coupled it with, for the first time, employer sanctions, of
which I was one of the authors.
And the complaint has been since that time that neither
Republican nor Democratic administration had enforced it nor
did they do anything about going to worksites to check on it.
And so now this Administration, finally, in the last couple
years of their Administration, is beginning to do that, and it
seems to me the tenor of many of the comments is that they
should not have done that.
Mr. Braley, it has been stated--or you said that you have
worked on the problem of corporate downsizing resulting in loss
of jobs for employees----
Mr. Braley. Yes.
Mr. Lungren [continuing]. For which I congratulate you.
One of the things, it seems to me, it is important for us
to do--and I ask if you would agree--is to deal with the issue
of illegal immigration because in some cases it results in the
loss of jobs to Americans. Do you agree with that?
Mr. Braley. In some cases I believe it does.
Mr. Lungren. And, Ms. Jackson Lee, one of the things I was
surprised at hearing you say is that in the construction--I
believe that you said it--or maybe Ms. Woolsey said--in the
construction trade we have the need for foreign workers. When
we passed the bill in 1986, the presence of illegal immigrants
in the construction trade was virtually nil. And now it is more
than that, some would say substantial.
And at that time I expressed a concern about the high rate
of unemployment with African-American males age 17 to 35. And
it seemed to me that we as a country could not use as an excuse
that we couldn't find Americans, particularly African-American
males age 17 to--to 35, to work in the construction industry,
and yet we have a worse situation now. It is not like
agriculture, where it is distant from where people live.
And do you disbelieve that there is any negative impact on
the African-American male community for the presence of illegal
immigrants in the workforce in construction around our country?
Ms. Jackson Lee. Let me clarify my point. I did not say
that they were needed, what I said was those industries are
being shut down because of the census in the population in
those industries, including restaurants and the construction
I will use as my reference your Ranking Member Mr. Smith.
We have been leading on the issue in years past on ensuring the
reach to the African-American community on a number of issues,
including technology. But as we speak, in the city of Houston,
I am leading on an effort to hire African-American young men on
construction sites. Of course, I am an equal-opportunity
person, who believes that all people should have the
opportunity to work, but we are doing it to reach out to them.
My point is is that these industries, as my good friend Mr.
Braley said, are suffering from demographics and census, and,
therefore, their work is being stopped. We need to find a
comprehensive reform system, Mr. Lungren, so that we can hire
Americans first, we can outreach to American workers and at the
same time we can provide a pathway to citizenship.
Mr. Lungren. Okay. Do I understand it correctly that you
object to the raids, per se, or you object to raids that are in
the spirit of meanness, that are cowboy style, that are
roughshod raids, that are dangerous, unworkable and sad?
Ms. Jackson Lee. First of all, let me say that I have a
great deal of respect for the enforcement officers across
America. They are working very hard. They have my support.
But, yes, I believe that we get little value out of these
raids. I think we get more drama. We don't get comprehensive
immigration reform, we don't get the illegal, violent----
Mr. Lungren. Well, I am not suggesting what do you get.
Ms. Jackson Lee [continuing]. Off of the street and----
Mr. Lungren. I am not suggesting----
Ms. Jackson Lee [continuing]. An effective approach.
Mr. Lungren. I am not suggesting you get comprehensive
immigration reform from raids, but the raids are aimed at going
after illegal immigrants who have jobs to which they are not
entitled or are using false identification, which then impacts
other people in this country. And wouldn't you--well, let me
ask you this: Would you suggest we stop doing the raids?
Ms. Jackson Lee. Well, let me say this: In speaking to
employers who have had experience of today and then 5 years
out, ICE agents used to come to the site--you can't move a big
factory--they used to go through the individuals and be able to
both enforce against the employer----
Ms. Lofgren. The gentleman's time has expired.
Ms. Jackson Lee [continuing]. Were illegal. All I would say
is that it is an ineffective approach of doing what we want to
Ms. Lofgren. The gentleman's time has expired.
We will be in recess for this set of votes.
Mr. Braley, do you have something you need to----
Mr. Braley. Before the record is closed, I do have a copy
of the fax that I mentioned earlier, and I would just offer----
Ms. Lofgren. Without objection, that will be made part of
[The material referred to follows:]
Ms. Lofgren. We have four votes so we will not be back
probably before 1 o'clock. We will begin with our second panel
at 1 o'clock. I think there is a cafeteria in the basement of
this building if someone wants to get a bite or a cup of
Ms. Lofgren. The Subcommittee will be coming to order in a
As we reassemble here, I did want to mention something I
neglected to say this morning, which is how appreciative we are
to the House Administration Committee and their staff. The room
that we ordinarily use is taken for another hearing in the
Judiciary Committee, and the House Administration Committee was
kind enough to make this hearing room available to us, and they
have really gone the extra mile with our Judiciary staff to
accommodate us, and we are very appreciative of that.
And I am on the House Administration Committee, so this is
not a new room to me, but it is an ornate room, and luckily we
don't have all the standers here for our second panel, who I
would like to introduce now.
I am pleased to welcome two witnesses. The first is Senior
Associate Deputy Attorney General Deborah Rhodes. Ms. Rhodes
assists the deputy attorney general on a variety of criminal
and other issues. She is also the United States attorney for
the Southern District of Alabama, where she oversees all
Federal criminal and civil litigation in an office of
approximately 50 professional staff.
Ms. Rhodes was formerly counselor to the assistant attorney
general for the Criminal Division of the United States
Department of Justice. She also supervised the Office of Policy
and Legislation and was the department's liaison to the
American Bar Association Criminal Justice section.
She graduated with honors from Rutgers Law School in
Camden, New Jersey, where she was editor-in-chief of the
Rutgers Law Journal, and she graduated with high honors from
Wheaton College Illinois, and I found out this morning, when we
said hello, that she is also a--originally a fellow
So we welcome you today.
I am also pleased to introduce Marcy Forman. Ms. Forman is
director of the Office of Investigations for the U.S.
Immigration and Customs Service, otherwise known as ICE. As
director, Ms. Forman oversees the largest investigative arm of
the Department of Homeland Security with more than 7,000
employees and 178 other field offices throughout the United
Ms. Forman is responsible for the policy, planning,
management and operations conducted under five major
investigative program divisions within the Office of
Ms. Forman holds a Masters of Science degree in management
from National-Louis University, a Bachelor of Science degree
from American University and has completed the Senior Executive
Fellowship Program at Harvard University.
She is a 2007 recipient of the Secretary of Homeland
Security Silver Medal for her leadership and dedication in
leading ICE's enforcement efforts.
Your full written statements will be made part of the
record. We ask that you summarize your statement in 5 minutes.
And this morning--it is very difficult to keep one's
colleagues within 5 minutes, but we are going to ask the
witnesses, as much as possible, to stay within the 5 minutes'
time because we have another panel after you.
And the little machine on the table, when it turns orange,
that means you have got 1 minute left, and when it turns red,
it means--and it always comes a surprise--your 5 minutes are up
so we would ask that you please conclude at that point.
And we will begin, Ms. Rhodes, with your testimony.
TESTIMONY OF DEBORAH RHODES, SENIOR ASSOCIATE DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Ms. Rhodes. Thank you.
Good afternoon, Chairwoman Lofgren, Ranking Member King and
Members of the Subcommittee. I am pleased to be here today to
discuss the Justice Department's role at Agriprocessors in
Worksite enforcement is an important part of our
immigration strategy, and I can assure you that the department
and our U.S. attorneys in the field are fully committed to
ensuring that we pursue it in a manner that protects every
defendant's constitutional rights.
The integrity of a nation's borders and its immigration
laws are fundamental to any nation's security. For this reason,
the attorney general has identified immigration enforcement as
one of the department's priorities.
Immigration policy is comprehensive. We enforce many
statutes in a variety of contexts, including the borders,
interior space and worksites. In my written comments, I have
mentioned recent cases against violent organizations, smuggling
and trafficking humans, employers and corporations who
knowingly hire illegal workers and those who provide false
identity documents to others, like the charges that are
currently pending against two supervisors at Agriprocessors,
where the investigation is ongoing.
We also prosecute those who use false immigration or Social
Security documents, identities that are often stolen from real
people to circumvent immigration laws. In fact, these
prosecutions often help investigators to work up the chain and
obtain evidence from the witnesses who can testify directly
against the document vendors, employers and corporations.
Our efforts have been successful. During the first 8 months
of this fiscal year, immigration prosecutions along the
Southwest border increased by 19 percent. At the same time,
apprehensions along the Southwest border decreased by 21
percent. This is a remarkable change in both directions in a
short period of time. And apprehensions aren't down in just
isolated areas. They are down in each one of the Southwest
We believe that this is further evidence that our success
is due to a comprehensive immigration enforcement strategy,
which builds upon itself and incorporates each of the efforts
The U.S. Attorney's Office and ICE work closely together to
ensure that worksite enforcement actions are conducted in a
manner that carefully safeguards constitutional rights and
treats each person fairly and with respect. This was also true
in Iowa, where extraordinary precautions were taken. My written
statement describes those efforts in detail, but I will mention
a few key points here.
Every defendant was appointed experienced and capable
criminal defense counsel to advise them concerning their case.
Defense counsel, assisted by a court-certified interpreter,
typically had the opportunity to meet with the defendant both
before the first court appearance and immediately afterwards.
This is earlier than happens in the ordinary case since counsel
is usually not appointed until the first court appearance.
Consulate officers from the defendants' countries were also
present to advise their citizens.
Defense counsel could, of course, continue to meet
defendants after they were transferred to other facilities.
Defendants who were charged with the same offense were
assigned to the same counsel and housed together to the
greatest extent possible in order to facilitate meetings with
defense counsel. Defense counsel were free to meet with their
clients as they saw best.
Defendants represented by immigration counsel also had the
benefit of their advice prior to any plea. The immigration
counsel consulted with the criminal defense counsel, and
defense counsel, in fact, raised immigration concerns in
several cases based upon specific facts.
Defense was provided with all of the necessary and
appropriate discovery material at the earliest time. In most
cases this was prior to the first court appearance. Again, this
is earlier than the normal procedures.
The discovery package included the charges, a copy of the
evidence supporting the charges and other relevant materials.
The package also included a proposed written plea agreement and
the relevant court documents for entering that plea. The plea
and court documents were translated into Spanish.
All of the files were based upon the evidence, the law and
the sound discretion of career prosecutors in the U.S
Attorney's Office. Because the defendants, most of them, had
stolen real identities, they were charged with aggravated
The plea offer gave them the opportunity to plead only to
the lesser charge. In exchange, they agreed to stipulate to the
removal, which ordinarily follows a felony conviction, and
exceptions were made in this--on case-by-case basis based upon
individualized facts. They also agreed to cooperate with the
government, which was a key part of the agreement.
The defendants pled guilty before a Federal judge on the
record in open court with the public present and with the
advice and consent of counsel. They went through a long plea
policy, the same one that is used in ordinary cases, where each
defendant was questioned at length, as was defense counsel.
They admitted that they understood everything about the
charges, penalties, plea agreements and sentence, in addition
to many other things detailed in my written statement.
The court asked counsel if there was any reason the plea
should not be accepted, and no one objected. Defense counsel
and the court both had an obligation to object if the plea was
No constitutional corners were cut. While the scope of the
criminal activity in this case presented unusual challenges,
the defendants' constitutional rights were carefully protected
and exercised throughout.
Ms. Lofgren. Ms. Rhodes, your time has expired. If you
could wrap up, that would be helpful.
Ms. Rhodes. There is no reason to conclude that either the
Federal judges or the defense counsel, who had an independent
role in these proceedings, abdicated their role, much less than
both of them did.
[The prepared statement of Ms. Rhodes follows:]
Prepared Statement of Deborah J. Rhodes
Ms. Lofgren. Thank you very much.
Ms. Forman, we would welcome your 5 minutes of testimony.
TESTIMONY OF MARCY FORMAN, DIRECTOR OF INVESTIGATIONS, U.S.
IMMIGRATION AND CUSTOMS ENFORCEMENT
Ms. Forman. Good afternoon, Chairwoman Lofgren, Ranking
Member King and distinguished Members of the Subcommittee. It
is my pleasure to appear before you today to discuss ICE's law
enforcement operation, in particular our worksite enforcement
ICE is first and foremost a Federal law enforcement agency
with the mandate of protecting national security and public
safety by enforcing the Nation's immigration and customs laws.
Our agents and officers perform the mission lawfully,
professionally and compassionately. We take extraordinary steps
to identify, document and appropriately address humanitarian
concerns of all those we encounter during law enforcement
operations and, in particular, during our worksite enforcement
While I am here today to specifically address many of the
steps that ICE agents take when planning a large enforcement
operation, it is important to note that the enforcement
operations are just a small part of the overall investigation.
ICE worksite enforcement investigations target employers who
adopt a business model of employing and exploiting undocumented
workers. Our investigations identify employers who hire large
numbers of undocumented aliens, often representing a
substantial percentage of the employers' workforce.
Our responsibility is to enforce the immigration laws, and
that means arresting undocumented aliens, the employers, the
document vendors, and any other individuals revealed by our
investigation who have engaged in criminal activity. ICE has
worked with Members of Congress and their staffs to develop
worksite enforcement guidelines. The office is used when
developing their operational plan. These guidelines were
developed to ensure that parents who have been arrested and who
have unattended minors or family members with disabilities or
health concerns are identified at the earliest point possible.
Within the law enforcement community, the consideration ICE
gives to identifying and resolving personal family issues is
unparalleled and unique. For example, during a large worksite
enforcement operation, ICE coordinates with the Division of
Immigration Health Services--DIHS--to provide a sufficient
number of health-care providers to assess the medical and
humanitarian needs of arrestees. DIHS personnel are given
prompt access to all arrestees under safe and humane conditions
on the day of the action.
When appropriate, ICE coordinates with state and local
social-service agencies to assist with humanitarian screening.
Operational security concerns sometimes dictate that this
coordination cannot occur in advance of an operation. Even
then, however, ICE will actively contact the local social-
service agencies and local nongovernmental organizations to
advise them of the operation once it was underway to request
their assistance in identifying and sharing information on any
humanitarian issues that come to their attention. ICE evaluates
these issues against other standard considerations, and
detention decisions, such as the arrestee's criminal record,
immigration history and other relevant factors.
During our May 12 operation at Agriprocessors in Postville,
Iowa, ICE agents executed criminal and civil search warrants at
the company, resulting in the seizure of boxes of evidence and
the arrest of 389 undocumented alien workers.
Extraordinary care was taken to determine if any of the
arrestees were sole caregivers or raised other humanitarian
concerns. This process involved the direct questioning of all
arrestees on the day of the enforcement operation by ICE
personnel, as well as interviews with DIHS representatives.
Detainees were questioned no less than three times about
humanitarian issues, such as child custody or serious medical
concerns. ICE arranged to have DIHS professionals at the arrest
site to immediately determine the need and status of any
children affected by the operation.
Through this comprehensive effort, 62 of those arrested
were placed into removal proceedings and then released for
humanitarian purposes while their removal proceedings
continued. Most were released from the arrest site in the
course of the operation.
Worksite enforcement operations are not poorly planned,
haphazard incidents. They are professional law enforcement
operations conducted by a professional law enforcement agency,
whose primary mission is the enforcement of the laws of the
United States and the protection of the American people.
While planning for the operation in Postville, I spent
several months coordinating the investigation and operation
with our Federal partners, such as the United States Attorney's
Office, the U.S. Marshal Service, the U.S. Department of Labor
Office of the Inspector General, U.S. Postal Inspection Service
ICE will continue to faithfully enforce the Nation's
immigration laws using all the tools and assets at our
disposal. By utilizing all our authorities to pursue aggressive
enforcement and the training offered with the ICE Mutual
Agreement between Government and Employers--or IMAGE--program,
ICE is establishing a culture of immigration compliance in
America and reducing the magnet of illegal employment.
On behalf of the men and women of ICE, who serve this
Nation by enforcing the Nation's immigration and customs laws,
I would like to thank you for your continued support. These men
and women have a difficult and oftentimes controversial job to
do in often dangerous circumstances, but they strive always to
do their essential work as consummate professionals.
Thank you for the opportunity to testify today, and I look
forward to answering any questions.
[The prepared statement of Ms. Forman follows:]
Prepared Statement of Marcy M. Forman
Ms. Lofgren. Thank you for that testimony.
Now we will begin our questions.
Would you like to proceed?
Mr. King. Thank you, Madam Chair.
I want to thank the witnesses for your testimony, and I
think perhaps where I would start with this would be--if I
direct my first question to Ms. Rhodes--with regard to what the
rights might be.
Is a judge--when a judge is presented with a plea
agreement, is a judge free to reject the plea agreement if he
believes due process has not been followed?
Ms. Rhodes. Yes, they are. In fact, judges are required to
do so if they find that the defendant is not competent, doesn't
understand the charges, the penalties, understand the terms of
the plea agreement. The judge specifically asks the defendant
if he is satisfied with the representation of counsel, if he
understands his constitutional rights, if he wants to waive
them, if he wants to plead guilty. The defendant is explicitly
asked under oath whether or not the factual basis supporting
the guilty plea is true and correct. The defendant is asked
whether he is under any coercion or whether the plea is
That is just part of the list. There is a lengthy colloquy,
and the judges, in my experience--I am a career prosecutor.
Judges, in my experience, take their roles very seriously, as
do defense counsel. It is an adversary system. Defendants
represent their clients zealously. And defendants are also
asked questions all through the colloquy--defense counsel--
excuse me--are also asked questions all through the colloquy to
ensure that they also believe that the plea is appropriate.
Mr. King. And if I could follow up on that a little bit and
ask how has that colloquy been compiled? Is it a history of
case law that is given more and more questions to make sure
that the alleged criminal has been--have received their
justice, or is it some scholar that sat back and wrote up the
Ms. Rhodes. The requirements are set forth in Rule 11 of
the Criminal Rules of Procedure, which govern what must be
covered in order to have a valid guilty plea.
In addition, it is my experience that most judges have a
form or a script on their desk, which they use as a checklist,
and they go through all of the questions, they are very
detailed, and in that way they make sure that they don't miss a
single one. Sometimes it is also the case that judges give that
script to counsel so that both the government counsel and
defendant--the defense counsel can follow along the script and
ensure that each and every question is asked and that
satisfactory answers are given----
Mr. King. Well, then would highly intelligent and very
skilled immigration lawyers, like the Chair of this Committee,
be looking for those omissions?
Ms. Rhodes. I can't speak for the Chair of this Committee,
but I am sure that lawyers would be looking for omissions.
Mr. King. And are you aware that they have discovered
omissions in that colloquy?
Ms. Rhodes. I am not aware of that.
Mr. King. And I don't know that this Committee is going to
hear any testimony that would allege such a thing.
But there has been an allegation made in the--by the
previous--I will say implications--in the previous series of
witnesses about the Department of Labor not being informed of
the ICE raids, and I would just ask if you are comfortable
speaking to that issue?
Ms. Rhodes. I can speak to it initially, and then I would
suggest that ICE is in a position to address that.
But my understanding is that ICE did coordinate--and the
U.S. Attorney's Office always coordinates with the
investigating agencies as well--but they did coordinate with
the Department of Labor, both through OIG, who was present at
the site, and through both state and Federal labor departments
that were located in Iowa.
And I will give----
Mr. King. I will be happy to hear from Ms----
I am going to come back to you on that answer to that
question, Ms. Forman, because I have just one more follow up--
Ms. Rhodes. Okay.
Mr. King [continuing]. For Ms. Rhodes.
And that is do you have numbers that can give us--this
Committee--some sense of how many victims of identity theft
were associated with the workers arrested at Agriprocessors?
Ms. Rhodes. Yes, I do. There were--of those who were
criminally prosecuted to this point, there is approximately
306. The vast majority of those--hundreds--had the identities
of real people. So there were hundreds and hundreds of real
victims in this case.
The investigation actually showed about twice as many as
that, but not all of those people were apprehended. But
approximately--well, more than 70 percent of the workers who
were both illegal and had Social Security numbers that didn't
match. There were hundreds that real people, and there were
hundreds of victims.
Mr. King. And, quickly, why are not company officials--
senior company officials--charged immediately?
Ms. Rhodes. The investigation is ongoing. I can assure you
it is being pursued. Two supervisors were indicted last week
and will continue.
Mr. King. Thank you.
And I realize, Madam Chair I am out of time. I wonder if I
Ms. Lofgren. We may have a second--we may have a second
Mr. King. Just for the opportunity to allow to Ms. Forman
to respond to the question?
Ms. Lofgren. Oh, all right.
Mr. King. The lingering question?
Ms. Lofgren. All right.
Mr. King. I thank you.
And if I need to restate that, was the Department of Labor
Ms. Forman. Yes, they were in April of 2008.
Mr. King. Thank you very much.
Thank you, Madam Chair.
I yield back.
Ms. Lofgren. Gentleman's time has expired.
I would note that the Committee asked the U.S. attorney in
Iowa Mr. Dummermuth to attend this hearing, and the Department
of Justice sent you instead, and it is nice to see you here.
But were you at--did you participate in these trials?
Ms. Rhodes. No, I didn't.
Ms. Lofgren. You weren't there?
Ms. Rhodes. No. But I have spent hours on the phone with--
Ms. Lofgren. No. I just have a simple question. You weren't
Ms. Rhodes. No, I wasn't.
Ms. Lofgren [continuing]. And I don't blame you, but I
think it is disappointing that the department wouldn't send the
U.S. attorney who was there, who we asked to attend, and I will
just note that for the record.
I would like--and it may be that you don't know this
information. If so, I would like you to get it.
But I would like to know what information was provided by
the Department of Justice, Department of Labor, Department of
Homeland Security--any or all of them--to the Federal court in
Iowa. This was planned for a long time. When was the connection
made with the court, and what measures were taken to ensure
that the court's view of the cases would not be affected and
that judicial neutrality would not be compromised?
Ms. Rhodes. My understanding--primarily for logistical
reasons. That is not unusual. If there is going to be an
enforcement operation that is going to bring a large number of
cases to the court, it is not uncommon to give the court a
head's up on that.
Ms. Lofgren. So Judge Reade would have been contacted in
advance? I am not making a value judgment, I am just trying to
find out what happened.
Ms. Rhodes. That is correct.
Ms. Lofgren. Now, we were--there have been accounts--and I
don't know if they are accurate--that the U.S. District Courts
for the Northern District of Iowa--Judge Reade--personally
called defense lawyers asking them for favors and warning them
not to tell anyone and then inviting them to attend a meeting
in Cedar Rapids with other defense lawyers to take on the
representation. Did anyone at DOJ ask Judge Reade to do this?
Do you know if that report is accurate?
Ms. Rhodes. I know that defense counsel were contacted
somewhat in advance, at least some of them were.
Ms. Lofgren. By Judge Reade?
Ms. Rhodes. That is my understanding. I don't have all the
Ms. Lofgren. Given the number of individuals apprehended in
this raid, I am curious of who picked the ratio of the number
of defendants to lawyer? You know, ordinarily, one has--you
know, you are charged with a crime, you have your lawyer to
represent you. But these were bunches of defendants with a
single lawyer. What guided you on the ratio? Do you know what
Ms. Rhodes. I don't know who selected that ratio----
Ms. Lofgren. Was it the judge, do you think?
Ms. Rhodes. I don't know. I do know that she contacted the
lawyers to keep the date available. I don't----
Ms. Lofgren. I am sorry.
Ms. Rhodes. It is not uncommon in immigration cases----
Ms. Lofgren. Well, these were prosecution of crime, though.
These were not immigration cases.
Ms. Rhodes. Excuse me. It is not uncommon in immigration--
criminal immigration cases to have a defense lawyer represent
Ms. Lofgren. But this was not a prosecution for a criminal
immigration matter. It was an identity theft prosecution.
Ms. Rhodes. The pleas that were actually conducted were not
on identity theft. They were on other documents so it was a
Ms. Lofgren. Right. That was the plea, but the----
Ms. Rhodes. That is correct. My point is simply this, not
to quibble over the charges but to simply say in these kinds of
cases it is not uncommon to have defense lawyers represent
Ms. Lofgren. Let me ask you, in terms of the--during the
raid, it has been reported--I don't know if it is true--that
the ICE officers arrested and interviewed each of the arrested
workers before they had access to criminal defense counsel.
Were they Mirandized, and, also, was any of the information
obtained in those interviews used in the prosecution--the later
Ms. Rhodes. They were Mirandized.
Ms. Lofgren. By the ICE interviewers?
Ms. Rhodes. Yes.
Ms. Lofgren. Did the decision to threaten the workers with
aggravated identity theft charges that would require prison
time of mandatory minimum of 2 years come from main Department
of Justice, or was the final decision made in the U.S.
Attorney's Office, and is this a new policy at DOJ?
Ms. Rhodes. You know, all of the charging decisions were
made by the career prosecutors in the local office.
Ms. Lofgren. So DOJ didn't have anything to do with it? The
Ms. Rhodes. DOJ was consulted because of the size of the
operation and to ensure that all constitutional protections
would be afforded. It was also consulted because it was a fast-
track operation and----
Ms. Lofgren. Well, let me be more precise on my question.
The decision to charge them with a criminal offense, as
opposed to what has often been the case to administratively
process and deport these individuals, was that a DOJ----
Ms. Rhodes. That was----
Ms. Lofgren [continuing]. Main----
Ms. Rhodes [continuing]. Made by the career prosecutors in
Iowa, and it was made primarily for two reasons: in order to
obtain cooperation and also because there was a case that they
Ms. Lofgren. Cooperation in what?
Ms. Rhodes. Because a part of every one of the plea
agreements was that they would continue to cooperate in the
government's ongoing investigation.
Ms. Lofgren. But aren't they going to be deported? They are
not going to be here to cooperate with you.
Ms. Rhodes. They are here for the next 5 months, and there
is a case where--a case in the district of Nebraska, which is
the same circuit, which dismissed a case against a corporation
precisely because the workers were no longer available----
Ms. Lofgren. So it may be the government's intention that I
am to keep these individuals here past their sentence as
material witnesses to the ongoing--is that what you are telling
Ms. Rhodes. I can't speak to that, but I can say that the
investigation is ongoing and that cooperation was a key
component to the criminal plea agreements.
Ms. Lofgren. But let me ask a final question because my
time is expiring. But were any of the defendants notified of
their right to contact their consular officers, as required
under the Vienna Treaty?
Ms. Rhodes. Members of the consulate from all of the
countries were present on location.
Ms. Lofgren. Okay. So they were all there.
I am going to turn now to Mr. Gutierrez for his 5 minutes,
and as I mentioned earlier, we may have a second round of
questions since there aren't that many Members here and we have
lots of issues and material that we would like to learn about.
Mr. Gutierrez. Thank you very much.
I would like to ask Ms. Rhodes, is this--I am going to read
something, and tell me whether it is true or not.
``If you plead guilty to the charge of knowingly using a
false Social Security number, the government will withdraw the
heavier charge of aggravated identity theft, and you will
receive a term of 5 months in jail, be deported without a
hearing, and placed on supervised release for 3 years. If you
plead not guilty, you could wait 6 to 8 months for a trial
without right to bail since you are an immigration detainer. If
you win at trial, you will still be deported and could wind up
waiting longer in jail than if you plead guilty. You would also
risk losing at trial and receiving a 2-year minimum sentence
before being deported.''
Is this is a copy of the interpretation of what was asked
to be interpreted to the 300-and-some-odd detainees. Is that an
Ms. Rhodes. Well, I understand that that was the
interpreter's rendition of what the choices were. What I would
Mr. Gutierrez. Could you give--I am the detainee.
Ms. Rhodes. Right.
Mr. Gutierrez. Tell me. Give me the plea agreement.
Ms. Rhodes. That they could--that they were charged with
two offenses originally. They were charged with the underlying
document offense because they had a false document. They were
also charged with aggravated identity theft because the
documents belonged to real people, and each one of the people
who pled guilty admitted to that. And so, yes, those were the
two choices that they faced.
Mr. Gutierrez. And if I go to--so but I was offered a
lesser of two charges?
Ms. Rhodes. Right.
Mr. Gutierrez. Okay. And if I didn't accept the lesser of
two charges, then I would be--wait in jail 6 to 8 months,
possibly for a trial, and then the minimum, if I am convicted,
is 2 years under the aggravated identity theft?
Ms. Rhodes. They can go to trial, and they can fight the
offense and take whatever verdict the jury gave them.
Mr. Gutierrez. But you did tell them they would be deported
nonetheless whether they win or lose?
Ms. Rhodes. Well, that wasn't--as I understand that, that
wasn't a conversation the government----
Mr. Gutierrez. Well, you know what, then, you see, there is
a big flaw here because if the interpreter--who hired the
Ms. Rhodes. The interpreter was arranged by the court.
Mr. Gutierrez. By the court. So this is an officer of the
Ms. Rhodes. That is correct. But they are interpreting what
the defense counsel is saying to the client.
Mr. Gutierrez. Okay. So then we have--okay. So we still
have a problem. We still have a problem with this proceeding
because, if I am the detainee and the interpreter is there--and
the interpreter is pretty knowledgeable because these
interpreters, this isn't their first trial. Many of these
interpreters have gone through hundreds of trials; isn't that
Ms. Rhodes. And so have the defense counsel.
Mr. Gutierrez. And so have the defense attorneys. Good. So
we have defense attorneys who know what they are doing--
according to you, your testimony--and interpreters who know
what they are doing.
So if the interpreter is telling us that this is what he
was asked to interpret, we have a problem here because that is
not your--that is not what you are offering; right?
You are contesting that this interpretation--right--is what
was the offer to the detainee.
Ms. Rhodes. No. I think it was consistent. They would
Mr. Gutierrez. It was consistent. So basically what you
have done--now, did you make the decision to charge them--the
Department of Justice--or did Homeland Security make the
decision to charge them with aggravated identity theft?
Ms. Rhodes. The charging decisions were made by the career
prosecutors in the office in Iowa.
Mr. Gutierrez. From the Department of Justice?
Ms. Rhodes. Yes.
Mr. Gutierrez. They are the ones that made the decision.
Was there any information given from Homeland Security that
well over 100 of the Social Security numbers really didn't
match to anyone.
Ms. Rhodes. No. For everybody who pled guilty, Social
Security confirmed that the Social Security number did in fact
belong to a real person.
Mr. Gutierrez. Okay. Did in fact belong to a real person.
Ms. Rhodes. That is correct.
Mr. Gutierrez. So were there any in the underlying
indictment or charges that you made to the 400--were there any
Social Security numbers that didn't belong to anybody? That
really weren't useful Social Security numbers?
Ms. Rhodes. There were some that----
Mr. Gutierrez. There were some?
Ms. Rhodes. Yes.
Mr. Gutierrez. Okay. So what you did is you carefully went
back--now, when--you said there were two charges; right? Could
you explain the two charges? There was aggravated identity
theft, and what was the other one?
Ms. Rhodes. Whatever they were charged with as an
underlying crime. For some it was submitting a false document
to obtain employment. For some it was having a false
immigration document. There were a few underlying charges that
And let me correct if I misspoke. It wasn't 100 percent of
the 306 people that had a real person's identity. It was the
vast majority. There were a few that----
Mr. Gutierrez. Okay. Okay. So it wasn't 100--so then these
people basically lied to the court when they admitted to
knowingly--right?--having a false identity since I cannot
knowingly have a false identity to an identity that I created
Ms. Rhodes. Well, no. Then they would have--they would not
have pled to that.
Mr. Gutierrez. But you said that some of them didn't have
Ms. Rhodes. Right. But----
Mr. Gutierrez [continuing]. Social security number. I mean,
I would ask the court reporter to repeat what you said, but you
just stated that some of them did not have a Social Security
number which indeed was being used by someone.
Ms. Rhodes. Right. It was a Social Security number not
being used by somebody, but the charges would have been--they
would not--those people would not have been asked to admit
Mr. Gutierrez. Well, you know, we have--my 5 minutes are
up, but what I gathered was--from your testimony--that there
were some people. First, you corrected yourself twice.
Ms. Lofgren. The gentleman's time has expired.
We will have one more round of questions so that we can get
any additional pieces of information that we wish to get.
And I will turn now to Mr. King.
Mr. King. Thank you, Madam Chair.
To start this off, I was actually waiting for Mr. Gutierrez
to come back so he could hear from me directly and understand
My position was represented to this panel inaccurately. It
has been consistently for enforcement of immigration laws,
against those who cross the border illegally, against those who
willfully overstay their visas, against those who hire people
who are unlawful, where it is proven unlawful to work in the
United States, and I don't believe that the gentleman from
Illinois can come up with a logical enforcement bill, and I am
not a co-sponsor of.
It isn't fining employers that I am after. I am after
bringing the departments of the Federal Government together and
working in cooperation so that we can effectively assist ICE
and the other agencies in enforcing immigration law. That is my
stand, and that is my position, and it is unusual--and I
apologize to the people that are here to testify today who do
not always see the activities of this Committee. It is unusual
to see a Member of Congress misrepresent a position of another
Member of Congress, especially on the same panel, especially
when we are working together on a day-by-day basis and there
should be no misunderstanding. In fact, I don't believe there
So I turn to Ms. Rhodes, and I would ask you the question
that why is the U.S. attorney for the Northern District of Iowa
not here to testify today?
Ms. Rhodes. It was decided that I would be here to testify
and that I was involved in reviewing the fast-track program
itself. I have reviewed all of the underlying documents
relating to these charges and I do have an understanding of not
only this case but some others.
Mr. King. I am fully convinced of that. But isn't it also
true that he is conducting further investigations and it is
policy not to--for a U.S. attorney not to come testify before
Congress if there is an ongoing investigation that he is
heading up and that--I don't know of exceptions, and do you
know of any exceptions?
Ms. Rhodes. That is right.
Mr. King. No exceptions. Then I think that clarifies why
Mr. Dummermuth isn't here today.
Then I would turn to Ms. Forman. And can you first--can you
tell us why Agriprocessors was targeted for worksite
enforcement? What were the original indicators?
Ms. Forman. ICE received information from very reliable
sources that Agriprocessors was--had hired a number of illegal
aliens and had built their workforce, they were an egregious
violator in terms of hiring large numbers of illegal aliens.
Mr. King. And, you know, you are going--you probably have
reviewed the testimony of one of the interpreters, Mr. Camayd-
Freixas. And I first ask you, have you reviewed his written
Ms. Forman. Yes, I have.
Mr. King. And so, as an opportunity to answer the charges
that we are--this Committee is going to hear, how would you
compare your holding area? He compared it to a concentration
camp. How would you describe it?
Ms. Forman. Well, first, personally and professionally, I
find that quite offensive. Being of Jewish faith, I equate
concentration camps to the murder of over 6 million Jews and
ICE is a professional law enforcement agency. Our detention
centers have to meet certain standards, and the one that was
put together in--in Iowa was one that I would--that was first
rate. It had pods, it was full of beds, there were foods, there
were meals, there was television, there was recreation centers.
Most concentration camps that I have become aware of don't
possess those items.
Mr. King. Would it be possible to--to bring enforcement
against employers without identifying illegal employees whom
they had hired? Is it possible to bring a prosecution--a
successful prosecution and conviction? I will go first to Ms.
Forman--if I have time, back to Ms. Rhodes--but would it be
possible to do so without--without first identifying illegal
workers and prosecuting them so you have got those facts to
Ms. Forman. Certainly, illegal aliens are a key component
of any illegal worksite operation. However, I mean, there are
different methodologies to work these types of cases, and
oftentimes you can't start from the top down. You have to work
your way up in investigations----
Mr. King. If I could quickly then--excuse me--go to Ms.
Do you know of any circumstances by which we could
successfully get convictions on employers if we didn't have
the--if we didn't have the evidence of the illegal employees.
Ms. Rhodes. Certainly we have to have evidence that
illegals were hired.
Mr. King. Thank you. I think that makes my point, and I
thank the witnesses.
And I yield back the balance of my time.
Ms. Lofgren. The gentleman yields back.
I am curious, do you know whether any of the people who
were--who pled guilty have been deported yet, or are they all--
they are currently in the United States?
Ms. Rhodes. I think ICE could probably speak more
accurately to that.
Ms. Lofgren. Do you know?
Ms. Forman. There are over 200 individuals who currently
are in still Federal custody. There have been approximately 30
that have been deported thus far. Ten are still in detention.
Ms. Lofgren. So 30 of them have been deported already?
Ms. Forman. To the best of my knowledge, yes.
Ms. Lofgren. So I guess that makes me question how we are
going to proceed on the prosecution of the potential labor
violations without the witnesses. It is pretty clear that ICE
is--you know, and that is provided for in law. I don't quarrel
with that. But once a person has finished serving their
criminal sentence, they are deportable and we are deporting our
witnesses. So I think the concerns about destroying this case
in terms of the employer's misconduct are well founded.
I am interested, Ms Rhodes, on the approach in this case. A
common practice--well, let me just ask this. Well, oftentimes
defendants--or in this case criminals--will be offered a
sentence reduction for producing substantial assistance in the
prosecution of others. Is that envisioned in these cases?
Ms. Rhodes. Yes. In fact, that was the whole reason for
having that term in the plea agreement, so that the government
could then find out who would be the best witnesses. And there
are a number of ways of preserving their testimony in any
criminal proceedings should one be necessary.
Ms. Lofgren. But the plea agreement itself--item 6, last
sentence--says, ``Due to the government's agreement to a
substantially reduced sentence, defendants shall have no
expectation of any additional sentence reductions or
So wouldn't--really, you have lost your leverage once you
have got the person, they have pled guilty--this is really
backwards from the way these things are usually done, isn't it?
Ms. Rhodes. It is not the way it is usually done, but that
is the way it was done here, and there will be no additional
benefit. The benefit was given upfront.
Ms. Lofgren. So the opportunity used--5(k) in the
sentencing guidelines--is really out the window?
Ms. Rhodes. Well, it wasn't 5(k), it was charge bargaining
in this case.
Ms. Lofgren. Okay.
Ms. Rhodes. Charges reduced.
Ms. Lofgren. Let me ask, in terms of access to immigration
lawyers, was there an effort made, when the defense counsel
were secured, to find people who knew anything about
immigration law so they could understand the interplay between
the two bodies of law, the criminal law defense and the
Ms. Rhodes. Well, in fact, several immigration lawyers
showed up at the site and were given access, actually, before
criminal charges were brought in many cases. They were given
access even during the booking process.
Ms. Lofgren. So there were several immigration lawyers and
how many individuals?
Ms. Rhodes. Well, there were 300, but there were joint
meetings held between the immigration lawyers and the defense
counsel, and as a result of those meetings and information that
was exchanged, some of the defense lawyers did bring
immigration issues to the attention of the prosecutors.
Ms. Lofgren. Let me ask in terms of, again, the immigration
benefits. I understand most of these individuals, at least from
the press reports, were from Guatemala, which has a very
checkered human rights record. Was there screening by the
department to identify whether any of these individuals had
been victims of torture or might have a claim to asylum based
on the situation in Guatemala?
Ms. Rhodes. I think--I can answer----
Ms. Lofgren. Do you know the answer, Ms. Forman?
Ms. Forman. I am not aware of that coming up, no.
Ms. Rhodes. No one did claim asylum. I do know that.
Ms. Lofgren. Well, they ordinarily--you know, not well
educated, Guatemalan meat cutters might not really be aware of
the law of political asylum.
Ms. Rhodes. Right. But they had lawyers who were consulting
with immigration lawyers.
Ms. Lofgren. Well, that is--we received reports that
immigration lawyers who came forward were actually turned away.
But I will explore that with the immigration lawyers that are
on the next panel.
Let me ask you this: How did you know in advance who to
give a charge reduction to in exchange for their cooperation?
Ms. Rhodes. It was given to everybody upfront so that we
would have the opportunity to later find out who would be the
Ms. Lofgren. That is kind of a pig in a poke, isn't it?
Ms. Rhodes. Well, it was a risk we took.
Ms. Lofgren. You know, I want to get on to the next panel
so I am not going to go any further, but I think certainly
there are a number of issues that are posed here for me.
I would just also note that the--in terms of the
prosecution of low-level misdemeanor immigration violations--
you mentioned the Southwest border--we had testimony in the
Administrative Law Subcommittee just a few weeks ago that,
although there has been substantial increases, that came at a
cost of a 40 percent reduction in organized-crime prosecutions
in the same area. So, you know, we are prosecuting the busboys
and the nannies, but the drug cartels are no longer having to
My time has expired.
Let me turn to Mr. Gutierrez to see if he has additional
Mr. Gutierrez. Sure. Thank you very much.
Yes, you said in order to obtain the cooperation of the
detainees you did what, Ms. Rhodes?
Ms. Rhodes. They were offered--part of the plea agreement
was that every detainee was offered a cooperation term, which
means that they would cooperate in the government's ongoing
Mr. Gutierrez. Let me ask you, so you say that the lawyers
there made the decision at that moment to pursue the indictment
for aggravated identity theft, that these were lawyers in Iowa.
Ms. Rhodes. That is correct.
Mr. Gutierrez. They made the decision. Is that usually the
way it works? I thought there was like a chain of command?
Ms. Rhodes. No. Individual decisions on charging are left
to the district. In this particular case, what was approved by
the department was the fast-track program itself, which meant
that they presented to us that they were planning on doing a
large-scale operation and that they wanted to do it under the
fast-track. The point----
Mr. Gutierrez. Who wanted to do it under the fast-track,
the lawyers from ICE, or the lawyers from DOJ?
Ms. Rhodes. It is the career DOJ lawyers----
Mr. Gutierrez. Okay. The career DOJ lawyers.
Ms. Rhodes [continuing]. Who present this. The benefit is
it allows--it benefits the community because it allows for a
large law enforcement operation to take out a large number of
criminal defendants all at once. It does it in a way that
doesn't flood the courts. It does it more efficiently, and the
defendants receive the benefit of that by getting a drastically
Mr. Gutierrez. They get a reduction to----
Ms. Rhodes. Those programs exist permanently in many
districts, and they also can be done on a case-by-case basis--
Mr. Gutierrez. Let me ask you something. If this is the
first time this was ever done, Postville's precedent setting?
Ms. Rhodes. Pardon me?
Mr. Gutierrez. This had never been done before, this fast-
Ms. Rhodes. No. Fast-tracks in worksite enforcements have
been done before.
Mr. Gutierrez. And at this scale?
Ms. Rhodes. I am not aware of anything at this precise
scale, nor am I aware----
Mr. Gutierrez. Would you--I don't expect that you have the
information. Could you give to the Committee when this was
first done? Because it is new to me, and it is new to many
Members of this Committee and I know some of the Members of
Congress, which are the ones, in the end, that establish the
immigration policies for this Nation. I mean, there should be
some coordination between what we do here and the laws we enact
and what you carry out at the executive branch of the
government, especially the judicial branch of government.
So could you please afford the Committee at some point in
the very near future when you first began this fast-tracking,
what the first case was, so that we could have some history of
when this began? Because it is kind of new to me in terms of
what gets done.
Because, when you charged the people, you charged them with
not knowingly using a false Social Security number, but you
really charge them with aggravated identity theft--right?--and
then you let them cop a plea for the lesser of the two charges?
Ms. Rhodes. Right. I believe the charges were with both,
and then the greater charge was dismissed.
Mr. Gutierrez. And then the greater charge was dismissed.
So let me ask you, if I am a detainee, do I have a right to
bail? Any one of the 300 detainees, was there a right to bail?
Could I have a reasonable right to bail in getting out of
jail while my----
Ms. Rhodes. On----
Mr. Gutierrez [continuing]. If I say no?
Ms. Rhodes. Well, there is a--you might have a criminal
right to bail, but the fact of the matter is you are going to
be detained by ICE for being here illegally.
Mr. Gutierrez. Very good. So there is no right to bail. I
mean, they are basically in jail regardless. I can't get out of
So if I have children I have to attend to and a spouse I
have to attend to--things that I am sure your prosecutors were
knowledgeable of--that these people had--I mean, the attorneys
must have communicated the guy has a--if he didn't, then the
attorney did a terrible job. The guy has a wife, the woman has
children, spouse, people who rely on them. I mean, these are
immigrants that are coming to the United States.
Ms. Rhodes. Yes. That was the basis of the humanitarian
Mr. Gutierrez. That was the basis for the humanitarian. But
yet you did have someone who might have had relief who didn't
take relief because his wife is an American citizen and he has
American citizen children, and yet he took the plea agreement
Ms. Rhodes. Some of those were also allowed relief on some
of the terms.
Mr. Gutierrez. Well, some of them but not all of them. Not
all of them.
Ms. Rhodes. It was made on a case-by-case----
Mr. Gutierrez. Because the way you paint the picture is,
``Oh, we did this for the good of the detainees. We offered
them an opportunity to kind of walk away.'' When indeed, most
of the time that is not what happened. Most of the time what
happens is they are detained and they are deported. Those are
the statistics that we get from ICE. They detain people; they
This was a very different situation and the manner in which
it was conducted at Postville because the statistics don't lie.
You basically said to them--and I know you want to tell us that
you were offering them a deal of a lifetime, but it really
wasn't much of a deal. You charged them with a felony that had
a 2-year minimum. You thereby tied the hands of the judge. He
had to sentence them to 2 years if they were found guilty. They
had to stay in jail. They were afforded an opportunity to stay
in jail for 6 to 8 months, wait for a trial, when indeed you
said to them, ``Well, we will give you 5 months.''
Ms. Lofgren. The gentleman's time has expired.
Mr. Gutierrez. Because from my point of view--and I will
wrap it up--it is just--if you are going to charge somebody
with something, charge them knowingly and with the intent. You
did not have one complaint of identity theft against any of the
people at this Agriprocessors plant, not one complaint of
Ms. Lofgren. The gentleman's time has expired.
I recognize the gentlelady from Texas Ms. Jackson Lee for 5
Ms. Jackson Lee. Thank you, Madam Chair, and I want to
again thank you and the Ranking Member for, I think, what is a
very important hearing.
Let me thank Ms. Rhodes and Ms. Forman for their service as
well, and allow me to again reemphasize the respect I have for
law enforcement and ICE agents, in particular the station in
Houston, that has made as best an effort as they could to be as
communicative and as sensitive to our concerns--our
humanitarian concerns and also the concerns our office has
expressed what we think are ineffective approaches to our
To that end, I would like to ask Ms. Forman to bring this
back in writing--my colleague mentioned it for Postville, but I
want a report on the Shipley Do-Nuts arrests and U.S. Rags--or
Rags USA as relates to the number of people arrested, the
number of people released, the number of people in detention as
we speak, the status of the investigation and the status of the
prosecution and the cost. And I also want to know the--any
efforts to increase the staffing in the Houston office for ICE
Ms. Rhodes, let me--and I know you might not have that at
your fingertips so if I can have that in writing. If you have
it, you might want to comment.
But let me--Ms. Rhodes, are you aware of the pending
legislation--have you had a chance to at least have summaries
of the kinds of legislative initiatives, like comprehensive
immigration reform or some aspects of the legislation that has
to do with felonies?
Ms. Rhodes. I am sorry. I am not familiar with the details
of the legislation that is pending.
Ms. Jackson Lee. Do you have a sense that the thrust of the
legislation is that people who are convicted of felon are
deported, in essence, permanently? Are you familiar with that
approach that someone who is a convicted felon would not be
able to access what has been called access to citizenship?
Ms. Rhodes. I know that typically those convicted of
felonies are deported.
Ms. Jackson Lee. Right. So what we have here in Postville,
for example, what is typically a civil or a pathway for someone
to be deported and possibly stay out of the country for 10
years, the psychic may have been by those lawyers on the ground
that, if these individuals are convicted of felony charges,
then whatever approach we may take in moving forward on
immigration reform, they would be forever barred from coming
back to the United Sates?
Ms. Rhodes. I don't know whether or not they would be
Ms. Jackson Lee. But they certainly would have a far more
difficult time. I think they would be forever barred. I don't
think there is a pathway for felons to come back in the United
Ms. Rhodes. They are permanently barred.
Ms. Jackson Lee. They are permanently barred. So do you
have any indication that that was the approach that these
lawyers were taking?
Ms. Rhodes. No, I don't. I know that felonies are graded.
Some you can apply for readmission after 10 years, some after
15 years, some are----
Ms. Jackson Lee. But if you have a young child and a spouse
here, certainly it would be a far more difficult hurdle to
overcome; is that not correct?
Ms. Rhodes. That is correct.
Ms. Jackson Lee. And to your knowledge--I know that they
were charged with identity theft--and I abhor identity theft--
but to your knowledge, short of that creative thinking at that
time--to your knowledge--or at least these individuals were at
first approached by the law because they were undocumented?
Ms. Rhodes. No, that is not correct. It is because of the
widespread identity theft. What had happened was Agriprocessors
is the largest employer in this town.
Ms. Jackson Lee. So you looked----
Ms. Rhodes. They had over 70 percent that were illegal, and
as the investigation progressed, it became clear that they were
also over 70 percent having Social Security numbers belonging
to somebody else.
Ms. Jackson Lee. And was that contributed to by the
employers? Were they part--was the allegation that they were
part of the conspiracy?
Ms. Rhodes. I would say this: It was a large percentage of
Ms. Jackson Lee. Okay. So, therefore, the culprits were
involved were also the employers as well, and these individuals
received, in essence, a benefit, but they were there to work.
Is that my understanding?
Ms. Rhodes. They were there to work, and two of the
supervisors who helped them get the false documents have been
Ms. Jackson Lee. All right.
Let me move quickly to Ms. Forman.
The scene for Houston was this: 200 people surrounding U.S.
Air Rags--I will get the name--Air Rags USA, guns drawn, doors
kicked in, a little 4-foot, 5-foot female bammed against the
wall who happens to be a citizen, the woman falling from 20
feet, the original then an arrest that went forward--and I am
going to finish in just a moment Ms. Chairwoman if you would
indulge me--then the arrest was in the morning at their
residence, surrounded by ICE officers. They arrested, and it
was a commitment that they would be released on bond by 12 noon
of that day. They didn't accede to that. They were then taken
from the detention center with cameras blasting, neck chains,
leg chains and all kinds of chains----
Ms. Lofgren. The gentlelady's time has expired.
Ms. Jackson Lee. Could she just answer and say was that
purposeful? Does that help you to intimidate by performing in
Ms. Forman. In all due respect, I have spoken to the
special agent in charge, and that did not occur.
Ms. Jackson Lee. With all due respect, it did occur, and I
would like a full report from that special agent in charge as
to what occurred because it did occur.
Ms. Lofgren. Well, the Committee will ask for a written
report on the subject.
Ms. Jackson Lee. I yield back.
Ms. Lofgren. Gentlelady's time has expired.
I would just like to note that the Committee hearing will
remain open for 5 days. We may have additional questions, which
we will submit to you in writing. We would ask that you
promptly respond if that occurs. And I would say, to the extent
that the questions are specifically about what happened in
Waterloo, we would ask that you have Mr. Dummermuth submit the
information he has personal knowledge of because we want direct
And as part of the question to be answered in writing, the
warrant request mentions methamphetamine at the plant, which is
inconsistent with the testimony you have just given, and I
would just like an explanation. I mean, I realize you probably
didn't prepare this affidavit, and if you could explain that in
writing, that would be very helpful.
And we thank you both for your testimony.
We will now call the third and final panel to the table.
As the panel is coming forward, I will begin by introducing
I am pleased to welcome Erik Camayd-Freixas. Dr. Camayd
holds master's and doctoral degrees in language and literature
from Harvard University and a bachelor's degree in psychology
from Tufts University. He is professor of legal interpreting
and director of translation studies at Florida International
University and the former director of training for the State of
Florida Interpreter Services program.
Dr. Camayd is the author of numerous books and articles and
has lectured widely around the world on linguistic and cultural
studies. Dr. Camayd has been a federally certified interpreter
since 1985, and he frequently serves in Federal and state
courts as an expert witness in semantic and linguistic
The next witness is David Leopold. Mr. Leopold is the
principal in the David Wolfe Leopold & Associates in Cleveland,
Ohio. He has practiced immigration and criminal law for nearly
For nearly 10 years, Mr. Leopold has also served as a
criminal justice--CJA--plan defense attorney for the U.S.
District Court for the Northern District of Ohio, representing
criminal defendants in Federal criminal matters upon court
In addition to his practice, he directs the immigration law
curriculum and teaches immigration law at the Case Western
Reserve University School of Law and serves as an adjunct
professor of immigration law at the Cleveland-Marshall School
of Law at Cleveland State University.
Mr. Leopold is also a frequent speaker on immigration
consequences of criminal convictions at Federal, State and
local bar continuing legal education seminars.
He is testifying today on behalf of the American
Immigration Lawyers Association. He currently serves as AILA's
first vice president.
I am also pleased to welcome Professor Robert Rigg. Mr.
Rigg is an associate professor of law at Drake University Law
School in Des Moines, Iowa. He is the president and founding
member of the Iowa Association of Criminal Defense Lawyers and
currently sits on the Iowa Supreme Court Attorney Disciplinary
Bar. He previously sat on the Iowa Supreme Court Advisory
Committee for Rules of Evidence and Rules of Criminal
He has been published in the Boston University Public
Interest Journal, the American Journal of Criminal Law, the T.
M. Cooley J. Practice in Criminal Law and West Law's Iowa
Practice of Criminal Law.
He has been quoted on NPR by the Los Angeles Times, the
Associated Press, Newsday, USA Today, and, finally and not
unimportantly, the Des Moines Register.
Our final witness is Ms. Lora Costner. Mrs. Costner is a
resident of Newport, Tennessee. She is married and the mother
of two children, Molly and Mason. She and her husband were
victims of identity theft, and her congressman was here this
morning to stick up for her, and we appreciate your willingness
to be here as well.
So if we may begin with Dr. Camayd. We have five--your full
written testimony--and that of all of you--will be made part of
the official record and--but we do ask that your testimony
consume about 5 minutes.
And we will begin with you, Doctor.
TESTIMONY OF ERIK CAMAYD-FREIXAS, PROFESSOR OF MODERN
LANGUAGES, FLORIDA INTERNATIONAL UNIVERSITY
Mr. Camayd-Freixas. Thank you, Chairwoman Lofgren.
Ms. Lofgren. We need the microphone on, though.
Mr. Camayd-Freixas. Thank you, Chairwoman Lofgren, Ranking
Member King, honorable Members of the Subcommittee.
I was 1 of 16 interpreters who served both weeks of the
Postville hearing. Unlike judges, prosecutors or attorney, I
was present at every step of the process. It is my duty as an
impartial expert witness, an officer of the court, to ensure
that the court is not misled and to bring to its attention any
impediments to due process. I have done so in the best interest
of the Federal court I am proud to serve and with the
conviction that, if our honorable judges had known how this
judicial experiment would turn out, they would have never
In my statement submitted for congressional record, I
document the flaws. Detainees' quarters were not certified. The
court failed to maintain physical and operational independence
from ICE prosecution and a level playing field for the defense.
There was inadequate access to counsel, no meaningful
presumption of innocence. Defendants appear not to understand
their rights and charges. Bail hearings and other due process
rights were denied. The charge of identity theft used to force
a plea lacked foundation and was never tested for probable
Defendant did not know what a Social Security number was
and were not guilty of intent crime. Guilty pleas were obtained
under duress. Judges had no sentencing discretion pursuant to a
binding plea agreement. Sole providers whose families are in
jeopardy now endure a cruel and unusual psychological
punishment, the foreseeable effect of a prison time on common--
Abridgement of process produced wholesaling justice at the
other end. Parents begging to be deported put in jail at public
expense. Proud working mothers branded like cattle with the
scarlet letter of an ankle monitor dehumanized and reduced to
begging at the doors of the church as they were released on
The town of Postville devastated. The kinship ties are
noble people are quick to forge with all newcomers painfully
severed. Families and friends separated.
I saw the Bill of Rights denied and democratic values
threatened by the breakdown of checks and balances, and it all
appeared to be within the framework of the law pursuant to a
broken immigration system.
Postville lays bare a grave distortion in the legal
structure of government. Post 9-11, ICE was granted power to
wage the war on terror, but since 2006, it has diverted
resources even from disaster relief to an escalating and
unauthorized war on immigration.
Yet the men and women of ICE are not to be faulted for
doing their duty. It is unrealistic in our adversarial system
to ask prosecutors to exercise restraint and not use all legal
mean to win convictions. The fact is our laws have not kept up
with this growth in enforcement.
Congress failed to pass immigration reform, and ICE has
filled the legal void with its own version of it. Now we have a
serious contradiction, the growth of authoritarian rule inside
a democratic government. This entity can simultaneously wield
immigration and criminal codes plus issue administrative rules,
leaving no room for constitutional guarantees.
It co-ops other branches of government--Social Security,
U.S. Attorney, Federal court--and uses appropriations to
recruit local police for immigration enforcement, setting
neighbor against neighbor and dangerously dividing the Nation.
With the help of local sheriffs, Postville repeats itself
daily while the harshness of border enforcement is reenacted in
the American Heartland with great collateral damage to our
citizens and community. It is a rush to raid as much as
possible before Congress regains the vision and courage to
restore the law of the land.
Part of immigration reform is redefining jurisdiction
over--ICE jurisdiction over immigration and criminal matters
without impairing the agency's ability to defend us from
terrorist threats. Since 2006, families have been separated on
a scale unseen in the Americas since the Spanish Conquest, when
it led to the extinction of Ameri-Indian nations. In Postville,
we have the added moral burden posed by the presence of ethnic
Mayan, testimonial people who constitute and endanger patrimony
I bring to this forum three requests from the people of
First, our government has left a humanitarian crisis for
Sister Mary McCauley and her good neighbors to cure. I call on
all to contribute to St. Bridget's Church and on the Federal
Government to respond with aid that guarantees survival for
their schools, businesses and institutions. It is time for
America to adopt Postville.
Second, with regard to the imprisoned aliens, government
says they have 300 criminals. The people say, ``Show us one
victim of their crime or send them home.''
Third, our national unity requires that Congress pass not
only comprehensive but compassionate immigration reform as
would befit the dignity of this great country built upon the
shoulders of immigrants by their children.
[The prepared statement of Mr. Camayd-Freixas follows:]
Prepared Statement of Erik Camayd-Freixas
Ms. Lofgren. Thank you very much.
Mr. Leopold, we would be pleased to hear from you.
TESTIMONY OF DAVID LEOPOLD, DAVID WOLFE LEOPOLD AND ASSOCIATES,
ON BEHALF OF AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Mr. Leopold. Chairwoman Lofgren, Ranking Member King----
Ms. Lofgren. I think the microphone went off again. There
Mr. Leopold. My name is David Leopold, and I am the
national vice president of the American Immigration Lawyers
Association. I am honored to testify this afternoon before you
about the conviction and prosecution of nearly 400 undocumented
workers in Postville, Iowa.
A prosecutor's duty is to do justice, not merely to
convict. This cardinal principle was ignored by the government
in its deal to criminalized undocumented workers in Postville,
Iowa. The workers were denied access to counsel familiar with
both immigration and criminal law. The defense counsel were put
in at the untenable position of advising on plea deals without
ability to assess the immigration consequences of the plea and
the possibility that the clients might have full relief from
The workers impacted by the raid were essentially coerced
into giving up their rights under the immigration law, such as
the right to a hearing before an immigration judge and a chance
to apply for relief from deportation.
The fast-tracking system concocted by the government
amounted to a conviction and deportation assembly line, which
exulted efficiency over fundamental rights. These poor,
uneducated Guatemalan farmers were treated like the livestock
prepared for slaughter at Agriprocessors. Shackled in groups of
10, they were efficiently packaged, convicted and ordered
deported and sentenced to jail time.
This scheme was predicated on overcharging the workers and
threatening them with 2-year mandatory minimum sentences. Faced
with the choice of 5 months in prison and deportation or 6
months in prison waiting for a trial which could lead to a
mandatory minimum 2 years in prison and then deportation, these
workers faced an impossible choice.
In most cases, the defendants faced this choice without the
advice of immigration counsel. This was a travesty of justice.
Effective assistance of counsel to an immigrant in a criminal
matter, including advice about whether or not to accept the
terms of a plea agreement necessarily includes a thorough
analysis of whether a defendant has acclaimed his citizenship,
the immigration consequence of a plea or conviction at trial
and the availability of relief from removal. Under the
immigration law, a noncitizen may be eligible for adjustment of
status, cancellation of removal and, of course, asylum.
Dr. Camayd's essay recounts the compelling the story of a
man from Mexico who worked at Agriprocessors for 10 years. He
had two young U.S. citizen daughters, a 2-year-old and a
newborn. On the facts, this man was clearly eligible to apply
for cancellation of removal and legal permanent resident status
because he was the sole support for these two young U.S.
But the plea agreement deprived him of any opportunity for
a life in the U.S. with his girls. He faced the impossible
choice of--between fighting his case or succumbing to the plea
deal, which forced him to waive his rights to a hearing. And he
faced this life-altering dilemma without the advice of an
immigration attorney. His case underscores the fundamental
injustice that occurs where defendants don't have access to
immigration counsel when evaluating a plea.
To guarantee due process, Congress should do the following:
Congress should enact legislation to protect the right to
protect the right to immigration counsel in ICE enforcement
Most importantly, ICE should direct its enforcement
resources for an investigations of high-level threats to
national security and employers that deliberately violate the
law, not workers who are merely trying to feed their families
and to contribute to the U.S. economy and to our social fabric.
The chilling spectacle that unfolded at the Cattle Congress
is a stain on our judicial system and an affront to the core
principles for which so many Americans have made and are making
the ultimate sacrifice. Congress should act now to ensure that
the Administration enforcement actions respect the core
American ideals of due process and fairness.
Thank you, and I look forward to answering your questions.
[The prepared statement of Mr. Leopold follows:]
Prepared Statement of David Wolfe Leopold
Ms. Lofgren. Thank you very much, Mr. Leopold.
Mr. Rigg, we would be pleased to hear from you.
TESTIMONY OF ROBERT R. RIGG, ASSOCIATE PROFESSOR OF LAW AND
DIRECTOR OF THE CRIMINAL DEFENSE PROGRAM, DRAKE UNIVERSITY LAW
Mr. Rigg. Thank you, Madam Chairwoman.
I intend to address a specific concern of mine--and I think
of the Criminal Defense Bar--in the process that was used at
the Postville raids and, subsequent to those raids, implemented
The biggest problem that I have identified--or at least I
feel this Committee should address--is the compression of time
that was imposed on defense counsel in this particular case.
That caused a cascade of other errors that could have occurred
and may have affected these guilty pleas. Whether or not they
will down the road, we don't know, and that is subject to
judicial scrutiny, and that is subject to review by the courts,
When the process was designed, this compression factor
essentially put lawyers--competent lawyers--in a situation
where they had very limited time to make very difficult
decisions with very limited resources. They simply didn't have
the time or the resources to do what they probably needed to
What that does is you can take the most competent lawyer in
this country, and if you put them in a timeframe like that and
you aggravate it by appointing them to 10 clients at a time and
say, ``You have got a week to make these decisions,'' that
process is inviting those lawyers to make mistakes, not
intentionally, not purposely, but you have created a situation
where essentially giving somebody a lawyer but you have tied
their hands behind their back. That is not consistent with due
process, in my view.
The other issues that tend to come up would be the
individual representation by attorneys. Who came up with the
number 10? Why 10? Why not 2? How come more lawyers weren't
contacted prior to this raid by either the judge, evidently, or
by someone with the U.S. Attorney's Office and brought into
this so you would have more lawyers available?
So you have a number of questions posed initially that I
don't believe have been answered. I am not sure that they can
be answered. The one thing I am sure of, the people that don't
know the answers is the Criminal Defense Bar.
Prior to the adoption of these proceedings, to my
knowledge, no one from the Criminal Defense Association--the
national or otherwise--was consulted prior to the enactment of
these fast-track rules. The normal course that we would use on
the Committees I have served on with the Iowa Supreme Court is
that you would bring in opposing counsel and try to address
pertinent issues prior to their occurrence so you can avoid
situations where you are having 10 clients being represented by
one lawyer, who also maybe not have immigration experience.
The other problem, I guess, I have is the transparency of
this process. This was an ambush essentially. There seems to be
some security concerns by the folks from ICE about the
Department of Labor being brought in on this. Well, obviously,
you know, if there is concerns about that, you are not going to
talk to anybody about this regarding the criminal defense side
And lawyers, from my understanding, were told not to
discuss the invitation they received to the Federal courthouse
in the Northern District of Iowa. That request was honored by
those lawyers, they did not know, from what I understand, why
they were being asked in, they didn't know until after the
raids occurred and were essentially brought in and given a ``
how to practice law in Federal court'' manual.
Those--those lawyers who refused to participate, that
manual was taken away from them. I don't understand that. I
don't see why that manual would not be public record and should
be made available to the Members of this Committee and to other
Members for its critique and criticism. It may be the best
manual in--on the world, but unless somebody critiques it and
looks at it and reviews it from the other side, well, we don't
The other thing that troubled me about this is the access
to immigration attorneys. The reports that I received--and just
as soon as 2 days ago--from a lawyer who actually went up to
Postville who was contacted by family to go in and interview a
client was essentially turned away by the ICE officials.
So you have a series of issues, but they all start to
cascade with the compression of the time, the number of clients
that were being asked to handle, and eventually I would
criticize the lack of input by the Criminal Defense Bar.
Thank you. That is all.
[The prepared statement of Mr. Rigg follows:]
Prepared Statement of Robert R. Rigg
Ms. Lofgren. Thank you very much.
All those bells and whistles mean we have votes. I am
hoping we can get your testimony, Mrs. Costner, and then we
will come back for our questions. So if you could give your 5
minutes of testimony, and then we will recess till about 3:15.
TESTIMONY OF LORA COSTNER
Mrs. Costner. Thank you for allowing me the opportunity to
share my experience with you.
In April of 2004, my husband and I acquired custody of my
biological niece, and her biological mother--my now estranged
sister--was in a relationship with an illegal immigrant. It is
our understanding that our personal identification was stolen
from the adoption paperwork.
In April of 2005, we received a letter stating that my
husband's driver's license would be suspended and there was a
warrant for his arrest. At 3:30 a.m. in February of 2005, in a
nearby town an impersonator--excuse me--who had no proof of
insurance and a fake Social Security card with my husband's
name on it got a speeding ticket. He signed his name--he
printed actually--Jamey Dee Costner. He could not speak
When the ticket wasn't paid, they obviously sent us a
letter stating we had 7 days. We had to hire an attorney, who
explained to the Department of Transportation that we were
victims of identity theft.
After that, they did not catch the gentleman that had done
it. The detective who handled the case called us and advised
that this same gentleman had worked at least two jobs in my
husband's name, but the company that he worked for told us they
would handle it with IRS.
So later in that year, we thought everything was okay, and
the immigrant was located, and despite being charged, we took
time off from work and went to the court date, the D.A. told us
it was the gentleman's third charge of taking the identity of
American citizens and he would be deported back to Mexico and
would not be allowed back into our country.
Less than 30 days later, we received a phone call at 3
a.m., and it was the same illegal immigrant. He was laughing,
and in broken English he said, ``They do nothing to me.'' He
went on to describe the make and model of the vehicles my
husband and I drove and what time I left work, and then he
mentioned the name of our daughter. He just laughed and--I was
also pregnant at the time. And I called the police, and they
told us that we need to get our phone number changed and there
was nothing else they could do. So we just went on--you know,
we had to.
Then in 2007--and I had been off work due to an injury. In
February of 2007, I called the Tennessee Department of Labor,
and they told me that I should not--that I had two workers'
compensation claims out--I had gotten hurt at work--and they
said that, on January 22, 2007, that I had fell off a line
deboning chicken and that they--I knew that it was another
identity theft. They told me the name of the hospital that I
allegedly went to.
I went to Cook Foods, which is chicken-processing plant,
and they argued with me and told me they had no way to believe
I was who I said I was. So I took my marriage certificate
because she was working in my maiden name. They arrested her
that afternoon after the H.R. manager had told me that they
didn't want the police involved, but I went to the police.
The next month we went to a court date, and the lady
couldn't speak English. She admitted through an interpreter
that she worked there using my name and Social Security number
for almost 2 years. She was charged with a misdemeanor and let
go the same day.
Two weeks after that, I received a letter from the IRS, and
for the year of 2005 alone we owe $7,854 in back taxes. We have
sent letters, statements. Finally, David Davis got involved and
they--we had to pay for an appeal so they wouldn't garnish our
wages even though we had proof that these people admitted they
did it, and we had to end up paying another $100, but they have
released us from 2005, but they said that we would have 2006
She took FMLA leave in my name. She had a baby at--not in
my name, but she signed in the doctor's office in my name, but
she went to the hospital in her Hispanic name.
And I guess to sum up very quickly, I had the life that I
always wanted, and now, because of this, I believe there is an
argument that illegal immigrants have a right to come here,
make a living, have a better life, but at what expense? I mean,
I have worked hard my whole life to have what I wanted, and by
adopting a little girl and trying to do the right thing, my
husband and I have had to seek counseling, and, I mean, we are
the--we are not who we were.
I have to fight every day to prove who I am. I wonder how
many of you are willing to give up all you have worked for.
That option was not given to us. Our identity was taken. After
extensive research, we now know we can never fully regain who
we rightfully are. Every day is a constant fight for the rest
of our lives to defend who we are. This is a fight that should
never have begun, a tedious, day-to-day worry that has taken
many joys, happy times and life, a life that we did all the
correct things and we earned that is no longer ours.
[The prepared statement of Mrs. Costner follows:]
Prepared Statement of Lora Costner
Thank you for allowing me the opportunity to share my experience
In April of 2004 I had the life I always wanted. My husband and I,
by no means wealthy, were comfortable. In one afternoon this was taken.
Not at once, but a slow beginning to what is now a life filled with a
day to day struggle trying to get back what we had.
On April 12, 2004 we acquired custody of my biological niece. My
now estranged sister was in a relationship with an illegal immigrant.
It is our understanding that our personal identification was stolen
from the adoption paperwork.
After a family vacation in April of 2005 we received a letter
stating that my husband's drivers license would be suspended, and there
was a warrant for his arrest. We assumed there was an error. After
investigating we found that someone was stopped at 3:30 AM in a nearby
town speeding in Feb. 05'.
The impersonator had no proof of insurance, and only a fake Social
Security card with my husband's name and SS# on it. The speeding ticket
had Jamey Dee Costner printed by the imposter. We were also told he
could not speak English. Despite this he was allowed to go.
When no one paid the ticket or appeared for the court date a letter
was sent to inform us of the punishment we would face. The car he was
driving was registered to my sister. However we had to pay an attorney
to write the TN Department of Transportation advising we were the
victims of identity theft.
The Detective handling the case, Mr. Bob Ellis, contacted us and
advised that the same illegal immigrant had worked at least two jobs in
my husband's name. We were in shock, but foolishly believed these
companies when they stated that they would inform the IRS. Despite our
anger we managed to move on. Things were quiet for a while.
Later in 2005 the illegal immigrant was jailed on a completely
different charge. He had broken the window of my sisters car. My Mother
informed me and I contacted the county he was arrested in. Taking more
time off work my husband and I went to his court date to provide the
info of the ID theft for the jobs and speeding ticket. The DA assured
us this man would be deported and also we saw where he had been
previously charged two separate times using the identity of other
American Citizens. The entire process was unimaginable to me, how could
this happen? If I am caught without proof of insurance my car would be
towed, and the thought of using another persons identity for my own
personal gain, well the thought alone baffles me. Yet we left finally
Less than 30 days later we received a phone call around 3 AM. It
was the illegal immigrant, Douglas Valdez. Laughing and in broken
English he said ``They do nothing to me.'' He went on to tell my
husband the make and model of our vehicles, named where we worked and
our departure time.
He then mentioned the name of Molly, our little girl. He rotated
from Spanish to broken English, yet the threats were clear. We had told
on him, and the Government had set him free. We would hang up, he would
call back. I called the local police department and was advised to have
our phone # changed. Never have I felt so betrayed. If only the phone #
was the issue, we were being threatened, yet he was able to live by a
different standard of rules than us. We kept our #. Periodically for
the next few months he would call and we would take our phone off the
hook. Every contact we made at any level of authority had seemed to
feel compassion, but had no answers or help. We had to live our life
and do the best to protect our family, the stress was the last thing
needed, I was pregnant expecting in April of 2006.
March 29, 2006 we had Mason. I took maternity leave and for a while
everything was back on track. A couple of months after I returned to my
job I began to clean up some of the reports that had piled up. I worked
in sales in the lumber division of a wholesale hardware company. I'd
been bitten on my head by a Brown Recluse spider. I was hospitalized
for 10 days with encephalitis and a severe MRSA infection. This was in
October of 2006. I was released to return to work in February of 2007.
On Valentine's Day I made a call to the TN Department of Labor I had
some questions before I returned to work. The lady I spoke with took my
SS# and from the beginning of our conversation it was obvious we were
not on the same page. She finally asked me why I was receiving benefits
from Worker's Compensation when she had a record of me filing another
claim on Jan. 22, 2007. At first I thought the system had transposed
some #'s. However someone had filed a claim using my maiden name Lora
Elizabeth Hale on Jan. 22, 2007. The customer service rep asked me if I
had quote, ``Fell off the line and hurt my elbow de-boning chickens at
Koch Foods''--my heart sank, I knew what we had believed was taken care
of a year before had just grown. I imagine the distress in my voice
made the lady believe me. She gave me the workers comp claim #, date,
and the ER info where ``I'd'' gone to be treated. Still being naive I
immediately called Koch Foods. I thought they would be as outraged as I
was, however that is not what I received. After being transferred to
several different people I spoke with Tim Steffin, the HR Director. He
told me that he had no way of knowing if I was Lora Hale or if the
person working there was Lora Hale. He did advise that she could not
speak English and suggested I meet there and she and I could come in
the office at the same time and try to get this straightened out. To
say I was irate would take away from my anger. Realizing all of my
identification had the name Lora Costner, I took my marriage
certificate off the wall in the frame and went to Koch Foods. The HR
Manager advised me that the lady using my identity would be there at 4
PM and he would discuss this with her then. He also advised that he did
not usually get the police involved in these matters. I realized this
was not normal, however I told him, that was fine and left. I went
straight to the police and filled out a report.
A court date was set for the next month. My husband and I took more
time off work, went to the court date. The lady, Elizabeth Bautista
Velasco, could speak no English. Through an interpreter she admitted
working there using the name Lora Elizabeth Hale for almost two years.
She was charged with a misdemeanor, the DA told us he could try for
more, but could not guarantee she would receive any more time. Our
faith in the system was already depleted, and we were tired. So we
agreed with the recommendation.
Less than two weeks later we received a letter from the IRS. For
the tax year of 2005 alone we owed $7,854.00. I sent letters to the IRS
with copies of court records, letters from our place of employment (we
had worked for the same company, I had been there for 12 years and
Jamey for 8 years, both full time) Detective Bob Ellis from the Hamblen
County Police Department wrote a letter on our behalf. For the IRS this
was not enough. Everything we sent only made them ask for more. The
taxes were also adding to the owed amount. In late September of 2007 we
received a letter stating that we needed to send a money order to stop
our wages from being garnished. We had fifteen days to send this money
to place the garnishment on hold while an independent counsel would
decide if we would be granted an appeal. During this time I faxed a
letter to State Rep. Mr. Eddie Yokley and State Senator Bob Corker. Mr.
Yokley called and spoke with my husband and said he had never dealt
with a situation like this and would be glad to help but did not know
what to do. Mr. Corker's office sent us a letter with a brochure on
legal aide. I contacted legal aide and was advised we made too much
money for assistance. We sent the money and were planning to hire an
attorney when the IRS advised if our appeal request was granted.
While waiting on the response to our appeal a local newspaper wrote
an article in December of 2007. The article stated that a lady who
lived in Maine was about to lose her disability due to wages she had
not earned, yet the IRS claimed she had. The place of employment was
Koch Foods in Morristown, TN. She had traveled thru the area two years
prior and had her wallet stolen. I decided to call the reporter. I
truly just wanted to advise this had happened to us. Mr. Robert Moore
wrote an article about our situation. He also told me that Rep. David
Davis was known for helping in this battle. The same day Mr. Davis'
office faxed me a release form giving permission for him to speak to
the IRS on our behalf.
Mr. Davis' office was in contact with us, however we were still
receiving letters from the IRS. Finally in March of 2008 we had to send
$99.00 and received a release for the 2005 tax year.
The IRS rep that I spoke with said that we should expect delinquent
notices for 2006 & 2007. To date we have not, but it was 2 years before
we received the notice for 2005.
A local station did a report on our situation that appeared on the
5PM channel 6 news. A reporter for the Knoxville News Sentinel then
picked up the story and wrote an article. I have found that people are
in shock that this can happen. Since the articles we have had calls
with offers to help, but no one knows what to do. One of the most
disturbing options was for us to change our names and SS#'s.
The workers comp claim the illegal immigrant had in my name was
paid by the insurance carrier for Koch Foods, however there is no
record of anyone using my name or SS# at the local hospitals. I also
have faxes from a local physicians office where a Hispanic lady checked
into the office using the name Lora Hale and my DOB and SS#, yet the
next day when she checked in the hospital for a procedure she had no
SS# and used her Hispanic name. This was in March of 2006. The
physician was on OBGYN, his office provided me with a fax that was sent
to the HR department of Koch Foods stating the discrepancies. However
she continued working there until I caught her. It is my belief she
filed my name at the OBGYN to receive FMLA leave, and her Hispanic name
at the hospital for free medical. And the same with the Comp claim. It
will forever be on my record, but how did the insurance carrier pay a
claim that was reported in one name and treated in another?
I understand there is an argument that illegal immigrants are here
only to make a living, a better life for their families. But I question
at what expense? We have always worked hard. We were doing the right
thing and taking in a little girl. The guilt I have since this was my
biological sister has been devastating. My husband and I have sought
counseling yet the damage has been done. We are a shell of the happy
couple we once were.
I will close by telling you that I think anyone who goes thru the
proper channels to achieve the ``American Dream'' should be allowed. No
matter what your dream is this Country has always given the opportunity
to work hard and achieve it. I know this because at one time I was
living my dream, however ``small,'' it was all I'd wished for.
Now I have to fight every day to prove I am who I say. I wonder how
many of you are willing to give up all you have worked for? That option
was not given to us, our identity was taken. After extensive research
we now know we can never fully regain who we rightfully are.
Every day is a constant fight for the rest of our lives to defend
who we are. This is a fight that should have never begun. A tedious day
to day worry that has taken many joys, happy times, and life. A life
that we did all the correct things, and we earned. But is no longer
Ms. Lofgren. Mrs. Costner, thank you for your testimony.
We are going to recess this hearing now. We have a series
of votes, and we will not be back before 3:15. So go get a cup
of coffee, and we will ask some questions when we return.
Ms. Lofgren. The Subcommittee will reconvene. Hopefully,
the Ranking Member will be here shortly.
First, apologies. We thought that we would be back at--by
3:15, but we had more votes than we had anticipated, and we
appreciate your patience and your willingness to stick with us
We have just a couple of questions that we will be able to
pose to all of you.
But before I do, let me just say to you, Mrs. Costner, what
happened to you was really terrible and outrageous, and I don't
think there is a person in the Congress who would defend what
happened to you, and I appreciate that you were willing to come
here and share your story. The individual that did that to you
should have been prosecuted, and I think it is--you know, I
don't see U.S. Attorneys are here now. I don't understand why
they didn't do their job to protect you and your family, and I
just wanted to say that before getting into the legal questions
for the others.
Let me ask you, Dr. Camayd, you have been a translator for
a long time, and I read the statement that you made that was
available publicly after this raid, and I was struck by, in
your statement, how shocked you seemed to be by the procedures
that you encountered here and that it was your judgment that
these individuals had no idea what was going on.
And you are, of course, the interpreter so you were in kind
of the catbird seat to understand what people knew perhaps even
better the lawyers because they couldn't actually talk directly
to the defendants.
Have you ever seen anything like this before in your 23
years as a interpreter?
Mr. Camayd-Freixas. Never.
Ms. Lofgren. I think that is quite revealing.
In your judgment, did these defendants understand the
nature of these proceedings and the pleas that were--there was
a lot of representation that the defense counsel had advised
them and they knew all the immigration issues. Did you observe
Mr. Camayd-Freixas. Well, there were almost 300
individuals, and the level of understanding was different from
one to the other. My determination is that the majority of them
did not understand the charges or the rights that they were
waiving. And I base that on several factors.
First, it is unclear to what extent the numerous ethnic
Mayans understood Spanish as a second language. Then there are
vast cultural differences between Mexicans and Guatemalan rural
cultures on the one hand and American legal culture on the
And the most important factor is that, in my expert opinion
as an educator, due to their lack of schooling and low rate of
literacy, most of the defendants had a level of conceptual or
abstract understanding equivalent to that of a third grader or
less. So they clearly needed a lot more time, a lot more
educating on a one-to-one basis on the part of the defense
attorney to even come closer to understand what these things
In addition to that, they really were tuning it all out
because the only thing--particularly the parents--the only
thing that they cared about is how to get back to their
families to look after their families so they were just
listening to the time factor. ``Okay. If I do this, do I get
home quicker,'' or ``If I do that.''
Particularly troubling was the waiver of the right to be
indicted by a grand jury on felony charges. These were all
felony charges. They basically at that point had no knowledge
of the plea agreement or the plea offer that the government was
going to make so they basically were given false hopes that, if
they waived the right to a grand jury indictment, they would go
home faster. So they did.
Ms. Lofgren. Let me ask you this. We had testimony that
there were--the defense lawyers had been completely schooled on
immigration law--and that there were immigration lawyers in the
facility. Did you observe that?
Mr. Camayd-Freixas. I am sorry. I didn't----
Ms. Lofgren. That the defense counsel had been instructed
in immigration law and that there were immigration lawyers
there at every stage helping the defendants understand. Did you
Mr. Camayd-Freixas. No. I didn't see any immigration
attorneys there. There were actually very few attorneys each
day because, even though 18 defense attorneys participated,
they would come in 3, 4, 5 each day. And I didn't see any
I also understood that the official policy was that these
were criminal cases, not immigration cases..
Ms. Lofgren. Right.
Mr. Camayd-Freixas [continuing]. Therefore----
Ms. Lofgren. But they had implications once you plead
guilty to this crime. Even if you had another benefit available
to you under existing immigration law, that would then be
Mr. Camayd-Freixas. Well, I did observe that some attorneys
were able to call on immigration law colleagues----
Ms. Lofgren. Okay.
Mr. Camayd-Freixas [continuing]. But the issues were so
complicated that sometimes they had to consult with two and
Ms. Lofgren. Right.
Mr. Camayd-Freixas [continuing]. Different lawyers, and
they would get different indications.
Ms. Lofgren. Let me ask the two law professors, and I am
going to read from the affidavit that was filed in support of
the application for the search warrant, and it is point 85. I
will summarize. The first part isn't really that material.
``A search was conducted by ICE agents in the Accurate
Database''--which, as we know, is the private-sector database--
it is highly accurate--``for the individuals' Social Security
numbers listed in second quarter 2007 payroll reports. This
search revealed that approximately 878 out of 1,116, or 78.6
percent, of the Social Security numbers input into Accurate
either did not appear to be associated with the person assigned
to that Social Security number, or the number did not reveal
any person associated with the number.''
What were hearing here from the government's own affidavit
is that 78--well, let us say almost 79 percent of the
individuals didn't have somebody else's Social Security number,
they had a made-up number.
How is that consistent, in your judgment, with the
necessity to base a prosecution on evidence that the
prosecutor's burden to have the elements of the crime known and
present before proceeding with a prosecution. Could you comment
briefly on that?
Mr. Leopold. Well, that statistic, Madam Chairwoman, is
very troubling. Eighty percent of these people apparently did
not have--the Social Security number didn't correspond to a
real person. That draws into the real question, the whole use
of the identity theft as a charge and really brings into
question the Social Security charges.
I tell you, I have sat on the CJA panel Northern District
of Ohio now for 10 years that handles criminal cases in
addition to my immigration practice. I would love an
opportunity to cross-examine the affiant here about that
because what he seems to say in this paragraph at the end is,
``Well, this evidence didn't really add up, but so what. I am
an expert. Believe me.'' So it is very troubling.
Mr. Rigg. I concur with Mr. Leopold's analysis there. The
two parts of that paragraph seem to be inconsistent, but,
again, that is something that would have been submitted to a
judge. But that is the type of information you would want a
preliminary hearing on.
Ms. Lofgren. Well, if I may time is running out, but it
just seems to me that the prosecutor's obligation is first to
do justice, not to just to get convictions. It is to, as an
officer of the court, to make sure that justice is done. That
is the whole system. And if the elements of the crime, by the
government's own attestation under oath, aren't there, how can
the prosecutors, consistent with their ethical obligations,
proceed? I just--I have a concern about that.
My time has expired so I am going to turn to the Ranking
Member for his 5 minutes of questions.
Mr. King. Thank you, Madam Chair.
I am going to turn first to Dr. Camayd, and I don't see it
in your written testimony, but what I think I heard you say was
that the subjects of this raid endured cruel and unusual
punishment. Did I hear that correctly?
Mr. Camayd-Freixas. Yes, sir.
Mr. King. And I just can't help but reflect that the
Supreme Court has conferred habeas rights on enemy combatants
and also conferred Geneva Convention status to enemy
combatants, and I have--I am looking at this as being precisely
language from the Eighth Amendment of the Constitution, cruel
and unusual punishment. Were you advocating that those
defendants then would bring a case to have their constitutional
Mr. Camayd-Freixas. No, sir. I don't have an opinion about
As an interpreter, part of my job is to interpret the
meaning of what people are saying, not just the words. In order
to do that, I have to put myself in the position of the
individuals I am interpreting for, whether they are attorneys
or witnesses or defendants. And when--I did that for 14 hours
during the jail interviews on a Friday and Sunday, and I was
able to put myself in each individual situation, and I was
talking specifically about the parents who were worried sick
about their children----
Mr. King. Okay.
Mr. Camayd-Freixas [continuing]. And their families and
having to basically spend the next 5 months at every moment of
their waking hours just consumed with this worry.
Mr. King. And--and I understand that was part of your
earlier testimony, and I agree with you that a good interpreter
interprets not just the words, but voice inflection, words
unsaid, body language--all those things together. And I read
the words in your testimony too and some of them are--they are
inflammatory to me. And so I will just leave that there rather
than belabor that point.
And I would turn then--first, I wanted to make a little
comment about Mr. Rigg's testimony.
First, I think it is the most reasonable of the majority's
witnesses here. And you made two points: One, that the
compression of time imposed limits on attorneys that may have
put the defendants' rights at risk. I think that is a valid
point, and I don't know if it is--I don't necessarily agree or
disagree with it. I just think it is a good point to have
raised. Then the--you referred to as an ambush--I think a
surprise--to the attorneys who were drawn into this process.
That is how I interpreted it.
I just wanted to say to you that, being on the Iowa Supreme
Court Advisory Committee, I have a certain amount of envy that
I am not on that advisory committee.
So instead of asking you a question, I would just take a
little license here, and in the time that is remaining, I
really want to turn to Mrs. Costner and say I recognize how
difficult this was for you to be here today. I appreciate the
Chairman's cooperation in that, and I know that you had to
overcome a fair amount of intimidation just from the very fact
of this being Congress to come here and testify, and I think
the way that you went through your testimony and got to the end
of it and actually compressed it within the 5 minutes, I want
to thank you. And I know there are Members on both sides--the
Democrats and Republicans--that know how difficult this was.
And that is the way citizens serve this country. You have done
But I would ask you, are you finished? Do you know that the
identity theft is over, and how would you know if it was?
Mrs. Costner. I was told that we would never know, that,
unless we changed our names and Social Security numbers, that
they would always be out there. And the IRS told me that we
would get tax notices for 2006 and 2007. I just don't know when
they will be here.
Mr. King. Do you know the initial perpetrator--do you know
where he is now in the--in the legal process?
Mrs. Costner. They let him go. They said that it was not
illegal to use someone's name to obtain employment.
Mr. King. But he was he never ordered deported from the
Mrs. Costner. That is what the D.A. told us was going to
happen when we left court, but then they----
Mr. King. But it didn't happen. And we are very--we are
very familiar with those circumstances by which we are short of
law enforcement personnel in a lot of ways, and I just say as a
matter of--statistically--two of my staff people have been hit
by drivers who were illegal, and in each case law enforcement
took the information, took the Matricular Consular card number,
they knew very well it wouldn't hit a positive hit on the
database, turned them loose. And even though, when I send my
chief of staff to town to try to get enforcement, we can't get
it even in my own staff.
So I just--I thank all the witnesses--I know we have strong
emotional feelings, and as emotions come out in your testimony,
Dr. Camayd, and I actually think some of that was plenty. And I
appreciate the professionalism that comes here when it arrives,
and I know how it was most difficult for Mrs. Costner, and,
again, I thank you for your testimony especially.
Ms. Lofgren. The gentleman's time has expired.
I would turn now to the gentleman from Illinois Mr.
Mr. Gutierrez. Thank you very much.
Let me share with Mrs. Costner thank you for coming and
bringing your testimony before this Committee. I think it is
very valuable information and testimony for us. We need to do
more about identity theft, and I thank you for your testimony.
I think it will help us here. At least I am very hopeful it
will help us here.
Let me go to Mr. Camayd. We heard Ms. Costner's testimony
about identity theft. It sounds to me like the gentleman who
stole her identity committed aggravated identity theft. Would
that be your opinion?
Mr. Camayd-Freixas. Absolutely.
Mr. Gutierrez. And I just want to see how that relates to
your experience in being an interpreter and what the people
were charged. Was there any evidence of this kind of critical
criminal intent--as using someone's identity, Social Security
number--and causing the kind of harm that was caused to Mrs.
Costner and her husband?
Mr. Camayd-Freixas. Well, I expressed to Mrs. Costner how
sorry I was for what happened to her during the break. And I
want her to know, for her peace of mind, that the individuals
that I saw in this case in Iowa were just hard-working people
and, in fact, only 5 out of 389--had any kind of criminal
One of the issues that bothered me about the case in Iowa
is that individual circumstances of each case were not
considered. And I think that, when we look at the very
unfortunate case of Mrs. Costner, as well as issues as to
whether illegal workers are good or bad for the country, I
think it--I keep going back to that situation and saying,
``Well, how can we apply these broad issues to the individual
cases if we don't know the facts of each case?''
Mr. Gutierrez. And so of the people that you helped
interpret for, there was no evidence--in your testimony you
seem to really stress the difference between the aggravated
identity theft and the use--the improper use of a Social
Security card. Would you--what is the difference?
Mr. Camayd-Freixas. Well, aggravated identity theft was a
charge created by an act of Congress in 1998. For almost 10
years, it had been used for its proper purpose and meaning. And
it was only until the middle of 2007 that it began to be used
in immigration cases, basically in presenting false documents
to obtain employment. So it seemed like it was a way of testing
the waters until in Postville it was applied on a large scale.
But the Department of Justice Web site has a very good page
on identity theft. It explains what it is. It gives several
examples. The examples it gives pertain to people who have
stolen identity to charge sometimes hundreds of thousands of
dollars under somebody else's name, that type of----
Mr. Gutierrez [continuing]. That is to use somebody's
identity to commit a crime?
Mr. Camayd-Freixas. That is correct.
And also it remits you to the actual statute, and the
language of the statute is that identity theft is using
somebody else's identity to commit a crime under the false
pretense of being another person.
Mr. Gutierrez. Let me just follow up because I would like
to ask Mr. Leopold.
So when I read, ``If you plead guilty to the charge of
knowingly using a false Social Security number, the government
will withdraw the heavier charge of aggravated identity
theft''--and this is from the interpreted--this was the plea
agreement, which the assistant general attorney had a little
bit of problem but not much problem with. I mean, this is
basically what the interpreters are saying, that the defense
counsel was giving to their client.
What is wrong with that? What in essence is there anything
wrong with an attorney--with a U.S. attorney or the Federal
Government accusing somebody of something and then offering
them a lesser plea? What is wrong in this case?
Mr. Leopold. Well, what is wrong with it is is apparently
there was very little evidence to convict them even on the
lesser plea. And what they did was they compressed this whole
situation by use of what is otherwise known as an exploding
plea agreement, which was 7 days long or it ended. So that
compressed timeframe, coupled with the fact that most of these
people--or all of them--their real intent was really to get out
and work and feed their families again, and their real--this
whole situation banked on the fact that the workers really
didn't understand the nature of the charges against them.
What was wrong was to use that kind of leverage in this
particular case and to try to criminalize--successfully
criminalize as many undocumented workers as they did when, in
fact, all they were trying to do was feed their families.
Mr. Gutierrez. And one last question. If it is an
immigration case, would you take any lawyer for a--is there a
particular reason you want an immigration lawyer to deal with
an immigration case?
Mr. Leopold. Well, look, absolutely, Congressman. The
travesty here is that these pleas that were given could not
possibly have been given knowingly because there was not
adequate advice of immigration counsel. And in a criminal case
involving a noncitizen, part and parcel of the defense is an
analysis of the immigration consequences.
In Dr. Camayd's essay, there was a discussion of a man from
Guatemala, and as the Chairwoman mentioned, Guatemala has a
rather checkered history with human rights violations. Many of
these farmers were from Guatemala. There were probably asylum
claims in there. There were probably people that needed
protection. All they needed to do--all the U.S. Attorney's
Office needed to do and should have done and failed to do was
ensure that immigration advice--competent, thorough immigration
advice was available to all of these detainees.
Ms. Lofgren. The gentleman's time has expired.
The gentleman from California, Mr. Lungren, is recognized.
Mr. Lungren. Well, I am sorry I missed a good portion of
this while I was tending to other things, but I guess I have
been here long enough to see what the hearing is all about. ICE
screwed up. Labor Department screwed up. U.S. Attorney's
screwed up. Court screwed up. There is no criminality here.
People like Mrs. Costner, who have their identity stolen and
suffer the consequences, we apologize to you, but, you know, no
one really did anything wrong here. They just took your
I have been in this place 14 out of the last 30 years
working on immigration issues. I thought that we solved this
problem in 1986 when we had the largest, most generous
legalization in the history of this country, which, by the way,
was not very particularized. There wasn't much you had to prove
to them and we managed to legalize millions of people, but we
did not enforce the law.
And people think the comments here about the Federal
employees who worked on this are not going to deter them from
doing their job, I think they are sadly mistaken. We have been
told that they were cowboys, that they were rogues, that they
had no consideration for the rights of anybody. Now, maybe that
is true. Maybe this was wholesale. Maybe every single ICE
officer disrespected the rights of everybody else. Maybe the
U.S. Attorney's Office did it completely. Maybe the Labor
Department was involved in some sort of grand conspiracy with
Department of Homeland Security. But, frankly, I find that a
whole lot hard to swallow.
Ms. Costner, when your identity was lost and taken by
somebody else, were you concerned whether the person was doing
it for a reason they considered to be good? Would that have
made a difference in terms of the implications with you, the
impact on you?
Mrs. Costner. No. When I went to court with the lady, I
actually was in a position to where I felt sorry for her, but I
still owed $8,000 and had lost a big part of my life.
Mr. Lungren. This upside----
Mrs. Costner. I mean, I am still----
Mr. Lungren. Did this turn your life upside down?
Mrs. Costner. Yes. And----
Mr. Lungren. So it is not a victimless crime? I mean, you
were a victim in this?
Mrs. Costner. And will be the rest of my life.
Mr. Lungren. But what we hear in Congress mostly is to
blame the Social Security system because they didn't do a good
enough job in it and because we don't check well enough. I
mean, at some point in time, I hope people understand folks
have to take responsibilities for their action. And it is
illegal to come into this country when you don't have a basis
for coming to this country. It is illegal to take a job when
you don't have a right to have a job.
And I will continue to talk about this until something is
changed. We have an unbelievable crisis in this country, a
scandal in this country with the unemployment among young
African-Americans age 17 to 35. I dealt with it when I was
attorney general. We were dealing with the high rate of
incarceration of that group, and one of the concerns was where
are the jobs? And I hope we will not forget about that. But I
hear very little about that.
And, you know, when you are trying to balance the scales of
justice, we ought to treat people fairly, they ought to have
the right to have a fair hearing, they ought to have the right
to have lawyers, but let us also remember the other side of the
balance here. There is people like Ms. Costner who----
Mrs. Costner. Had to pay for my lawyers.
Mr. Lungren. And your life has been turned upside down.
Mrs. Costner. Yes. I mean, it is----
Mr. Lungren. Now, maybe no one intended that, but that is
what happens when people steal identity here, and it is almost
as if we are saying----
Ms. Lofgren. Would the gentleman yield?
Mr. Lungren [continuing]. It is not that big a deal.
I will be happy to yield, but, I mean, I have sat here and
heard questions while I was here.
Ms. Lofgren. I don't think you had arrived yet when all of
us expressed concern about----
Mrs. Costner. Correct.
Ms. Lofgren [continuing]. Mrs. Costner's----
Mr. Lungren. Oh, I understand that.
Ms. Lofgren [continuing]. Situation and also expressed the
view that the perpetrator should have been prosecuted and
But here is--and I thank the gentleman for yielding--the
affidavit filed by the government based on their search says
that 80 percent of the individuals didn't take somebody's
Social Security--it was a number that--it wasn't somebody's
Social Security number. It was a made-up number not attached to
any real person. And I think that is one of the issues that at
least is of concern here is there was no victim because there
was nobody who had the number.
And I thank the gentleman for yielding.
Mr. Lungren. I appreciate that.
You know, we have a schizophrenic country. On the one hand,
we want to deal with illegal immigration and enforce the law.
On the other hand, we want to have people here to take jobs
that ``Americans won't take.'' And I think there is an area in
which that applies, and that is why I have been working for 30
years to get a temporary worker program and to get some legal
means to do it.
It is my observation the American people will not allow us
to do that until they believe we have the enforcement side in
control. And when they see the impact of phony Social Security
cards or stolen identity, that does not give them great
confidence that we have this under control. And my fear is that
we will never get to the point of having that temporary worker
program, having those means by which we can determine how many
people should come here, take them out of the shadows of
illegality so they have the protections of the law unless we
take enforcement seriously.
And my bottom-line concern is that the hearing seemed to be
directed at an agency that screwed up. And I suppose we might
find a raid where they actually did things right. And maybe
Ms. Lofgren. We will keep looking.
Mr. Lungren. Well, I know. We will keep looking, but that
is very encouraging to the people at ICE as we have been told
that we have great respect for them and the work they do and
then we just constantly tell them they have done a terrible
If I sound frustrated, I am frustrated because I have
worked for 30 years to try and get a solution here, and one of
the results of not having a solution is Ms. Costner, is what
you had to go through, and unless we get a grip on this, many
others are going to go through that. And we are all going to
invite you here, and we are all going to apologize to you, say
we are sorry it happened to you----
Mrs. Costner. Pass around the hat.
Mr. Lungren. Yes, we will pass around the hat. But we won't
do anything about it. So I will add my apology too, but the
best apology we could make to you is when we actually pass a
law that deals with this and puts it on the right track.
Thank you very much.
Ms. Lofgren. The gentleman's time has expired.
I recognize the gentlelady from Texas Ms. Jackson Lee.
Ms. Jackson Lee. Thank you, Madam Chairwoman, again.
I associate myself with the latter words of my good friend
from California. We do have to pass a law, Ms. Costner, and I
would start with you simply to say that I am outraged about
what happened to you. As I looked over your very eloquent
statement, this is, I think, the thrust of my comments. I want
the bad guys, the ones who are stalking you, who are criminally
calling you up on the phone and ridiculing you. I want the guy
who speeded and got a speeding ticket to be deported. And the
outrage is where was--why was there a disconnect? The local law
enforcement could have taken the gentleman in and called the
Federal law enforcement right there. That is the kind of
criminal bad guy that you want to be gone. Obviously, we would
like a lot of these incidences to not occur.
So my question, I know that you are not an expert in
Federal law--and I see this other individual who you felt
sympathy for--but there was a purposeful use of your
identification, and I don't want to stereotype a profile, but I
would think your name is slightly different. Maybe they
perceived you to be--this individual to certainly have the
ability to have maybe a name as yours. But it might have been
an indicator to ask a few more questions.
And so I think obviously and conspicuously on the face of
your facts we could have helped you. And I apologize for the
lack of coordination. We have advocated that there should be
coordination. We don't think local law enforcement or Federal
law enforcement. But if this person was poised to be deported
for conspicuous, reckless criminal actions--I am talking about
the first individual, who seemingly began to stalk you--that
should have occurred.
And I just simply ask you the question would you like to
see, as we look to try to fix this immigration system, that our
law enforcement goes after those who are poised or are already
in the act of criminal acts that already violate the criminal
laws? If you were doing this, that would be against the law.
Should we be putting resources there to get those kind of
Mrs. Costner. Yes. But I would like to see them here going
through the channels to be here legally so it is not a question
and they don't have to steal an identity to work to feed their
Ms. Jackson Lee. Well, you are very gracious, and I just
want to apologize to you and thank you for your testimony----
Mrs. Costner. Thank you.
Ms. Jackson Lee [continuing]. And for being here, and we
will certainly look at some of the fractures in the system that
caused this individual--the first individual that took your
husband's ID, of course--to treat you in that manner, and I
thank you for your testimony.
Let me go to Mr. Leopold. I went down this line of
reasoning with the representative for the DOJ and the ICE,
which is to suggest that there may have been some thinking as
relates to putting forward these criminal charges knowing that
criminal charges placed on individuals who, as you had
indicated, come from places like Guatemala may have been simply
farmers who were trying to come here for economic opportunity,
albeit that they were undocumented, that placing them in this
criminal predicament--in this criminal charge predicament would
have then cast them as felons and made their journey back home
more difficult or their journey and their ability to return
What do you think about that kind of thinking?
Mr. Leopold. Well, the criminalization of undocumented
farmers really goes nowhere. Yes, it does brand them as felons.
And you are correct, once somebody is branded as a felon, it
creates all kinds of problems later on with respect to
admissibility to the United States. Not everybody who is
deportable who is a felon, but many are. Many people who are
felons, it is impossible to be admitted. There is no 10-year
bar. I think I heard the representative from the Department of
Justice talk about a 10-year limit. I don't know of any 10-year
limit. It is a lifetime limit.
Ms. Jackson Lee. It is a lifetime.
Mr. Leopold. It is a lifetime limit.
Ms. Jackson Lee. That is right.
Mr. Leopold. You are correct. And absent a waiver--and even
then, you have to show a qualifying relative--it becomes
extremely, extremely complicated.
Ms. Jackson Lee. I don't want to cut you off, but my time,
and I would like the other three gentlemen.
I don't want us to get tainted as unpatriotic because we
are arguing for a sense of balance, but I need some help. I
know that you have been engaged in this. The use of resources
used like this raid, help me find a more effective pathway. I
have looked at the numbers: 104 raid teams and we look to get
4,000 in 2008, immigration lawyers being utilized, other
resources. Is this an effective tool for enforcing immigration
laws or putting the system right-side up?
You want to start Mr. Rigg?
Mr. Rigg. Thank you. I don't think it is the most effective
tool. You can make an argument that, yes, we achieved what we
set out to do if you are ICE if we removed individuals who were
undocumented, we are getting them out of the country, we have
now prosecuted them, and you can claim some success with that.
Was the overall process a fair one? That is where I have
real problems. And the purpose of the criminal justice system
is to make sure that we get at the truth and that justice is in
fact done. And critical resources have to be devoted, not only
to ICE and to the Department of Justice, and they also have to
be devoted to the Judiciary and the Criminal Defense Bar, and
everybody seems to overlook the Criminal Defense Bar and give
them, I think, the opportunity to have some input into this and
maybe make suggestions that might actually serve ICE's purpose
Ms. Jackson Lee. Mr. Leopold, could you quickly just answer
the effective use of resources?
Mr. Leopold. The most effective use of resources,
Congresswoman, would be to fix the broken immigration system.
As Congressman Lungren pointed out, it is broken, and it does
need to be fixed. And this is a symptom, the terrible story
that we hear from Mrs. Costner, other stories. This is the
symptom of a broken--badly broken immigration system. And,
frankly, Congress needs to roll up its sleeves, get down to the
nitty gritty of fixing the system. It is not going to happen
overnight, and it is going to take a lot of hard work. And,
frankly, I implore Congress to do this about it.
Ms. Lofgren. The gentlelady's time has expired.
Ms. Jackson Lee. I thank the distinguished Chairwoman, and
I will just say, Chairwoman, in closing my sentence, I think we
need to ask the president of the United States, which has to be
a partner in signing a bill, and I personally ask him if he
would take in these waning months leadership on helping turn
this system right-side up.
I yield back.
Ms. Lofgren. Thank you.
The gentlelady from California Ms. Sanchez is recognized
for 5 minutes.
Ms. Sanchez. Thank you to the Chairwoman for holding this
hearing because I think, although it has been a long day, it
highlights several issues that I think speak to the fundamental
nature of what are we as a democracy.
And while I don't want to diminish the terrible
circumstances that Ms. Costner's gone through, in listening
to--in reading through some of the testimony, it is clear that
the workers who were using Social Security numbers that were
not assigned to another individual, their intent was not to
wipe out somebody's bank account, charge up thousands of
dollars on their credit cards or steal their pension, it was
simply to work.
And I think in all the panels we have heard at some point
or another people say we need to fix a broken immigration
system; otherwise, these types of things are going to continue
to occur. And there will be criminals, like the criminal who
stole Ms. Costner's identification, who will go unpunished. But
there will also be hard-working people who are just trying to
feed their families or trying to make a better life for
themselves or escape repressive regimes in their home countries
of origin who are also going to get caught up in unfortunate
circumstances because I consider some of their circumstances
very unfortunate as well.
What particularly concerns me about this raid is the
question of due process rights, and much has been made about
the fact that the taxpayers pay for it. Well, you now what? It
is a constitutional guarantee that, if you cannot afford an
attorney and you are being charged with a crime in this
country, one is provided for you. And yet, you know, people
seem to make light of the fact that, hey, as long as you are
given an attorney, what are you complaining about? Well, if you
don't have a reasonable way to participate in your own defense,
if you don't have a understanding, a basic grasp of what you
are being charged with, how can you really make informed
decisions in a criminal process? And the compressed timeframe,
I think, only underscores the egregiousness of the due process
that was not afforded to many of these--many of these workers.
In my Subcommittee on Commercial and Administrative Law, we
have heard testimony under Operation Streamline and in
Postville defense lawyers were being assigned up to a dozen
clients at once and given less 30 minutes to, number one, meet
and educate the client themselves; number two, decide whether
the client was competent to stand trial; number three,
determine whether there is a defense of citizenship or duress,
a lack of intent or a need for pretrial motions to suppress
evidence or statements due to constitutional violations; and,
number four, learn personal information which might mitigate a
sentence and a whole host of other things. Thirty minutes was
granted to each of these people.
I want to ask Mr. Leopold and Mr. Rigg, in your
professional opinion, can any defense attorney adequately and
ethically execute their duties in less than 30 minutes to a
client, and especially in a case where they have to interpret
with somebody who doesn't speak the language? Does 30 minutes
seem like a sufficient amount of time?
Mr. Leopold. Well, you know, I can speak from experience as
a CJA panel attorney myself that 30 minutes is enough time to
shake the client's hand and get to know their name. Of course,
not, Congresswoman. Of course, not.
You know, and couple that with this compressed plea
agreement--and by the way, I don't know--nobody has ever
explained the representative from the Department of Justice or
the U.S. attorney--nobody has ever explained why did they have
to impose this 7-day deadline on the plea agreement? Why?
There was absolutely no reason to do that other than to
pressurize, not only the panel attorneys--the CJA panel
attorneys--who, by the way, did a valiant job out there in
Iowa--but to pressurize the clients into taking these pleas. I
know of no situation in my experience--and I have asked other
attorneys--where this type of plea agreement was used.
Ms. Sanchez. Mr. Rigg?
Mr. Rigg. I am also the director of the Criminal Defense
Program, and one of the things I do is I supervise students in
criminal cases. I would fail any student who took 30 minutes to
advise a client on a misdemeanor charge to plead or not to
plead, much less do the analysis that you have described.
Essentially what you have described is a violation of every
standard of the ABA standards of a prosecution function and
Ms. Sanchez. Thank you. I appreciate your honest answers to
Mr. Camayd--did I pronounce that correctly?
Mr. Camayd-Freixas. Camayd.
Ms. Sanchez. Camayd.
To the best of your knowledge, did any individual who you
interpreted for refuse to answer questions during ICE's
Mr. Camayd-Freixas. I was not present during that
questioning session so I wouldn't be able to answer that.
Ms. Sanchez. Okay. So you don't know if any during
processing asked for an attorney at that point either?
Mr. Camayd-Freixas. I am sorry?
Ms. Sanchez. If any individual during the processing asked
for an attorney?
Mr. Camayd-Freixas. I do not know that.
Ms. Sanchez. Okay.
I just want to ask one final question, and I would beg the
Chair's indulgence as I did not get a chance to question any of
the previous panels.
Clearly, there seems to be a problem with this particular
instance in terms of whether people had a knowing and a full
understanding of what they were doing before they entered their
I want to know from our panelists--Mr. Leopold and Mr.
Rigg--what is the potential harm to the American system of
justice when we allow criminal prosecutions to go forward in
this manner? I mean, if it can happen here, can there not be
other instances in which it can happen? And then what does that
do fundamentally to the American system of justice?
Mr. Leopold. Well, Congresswoman Sanchez, if you could
imagine for a second how we would react if we heard of a group
of Americans overseas in a foreign country being rounded up
into a cattle pen and prosecuted in 7 days. I mean, the whole
spectacle itself demeans our system of justice and stands as a
stain upon this system which we all--we all cherish.
These types of precedents in terms of the type of
prosecution as it was done out there is a terrible precedent, a
terrible way to handle justice, and I would respectfully submit
that it shouldn't ever happen again.
Ms. Sanchez. Thank you.
Mr. Rigg. I think anytime you value high turnover and
economy of justice, that is exactly what you get, that you
don't get justice, and you probably are going to violate due
process in doing so. And anytime the American system--and every
day the American system is put on trial, and are we getting it
right, and it is rightfully tested by the careful arguments
between defense counsel and prosecutors with a neutral and
detached judge. And when you take any part of that component
away, you are guaranteeing at some level you are going to
create a problem.
Ms. Sanchez. All right. One final question, and I can't
resist asking this because Mr. Leopold said, ``If you could
imagine this happening to Americans overseas.''
What if U.S. citizens here in the United States--here in
the United States were rounded up and arraigned 10 at a time
and processed and given plea agreements? What can you imagine
would happen here if American citizens were treated like that
under our system of justice?
Mr. Leopold. Well----
Ms. Sanchez. Because it seems to me that there is an
inherent bias if they say, ``Well, it is fine because, you know
what? These people don't matter anyway. They don't really
Mr. Leopold. Well, I think that is an astute point. I think
that we wouldn't see that kind of roundup of U.S. citizens.
You know, in the panel cases that I have done in the
Northern District of Ohio involving big cases with a lot of
defendants, it is always one lawyer to one client. I have never
seen 17 clients to one lawyer, 15 minutes or 30 minutes to
speak to the client.
You know, in this case--this is the immigration law, this
huge book. I don't know how you can explain this in 30 minutes
to somebody, let alone the enormous consequences of taking a
Ms. Sanchez. Any further comment from any other panelists
Ms. Lofgren. The gentlelady is granted one additional
minute for an answer----
Ms. Sanchez. Thank you.
Ms. Lofgren [continuing]. And then we will be----
Ms. Sanchez. I will yield----
Ms. Lofgren [continuing]. Adjourning the hearing.
Mr. Camayd-Freixas. Yes. I want to make clear that I
believe everybody here is in favor of enforcement but done the
right way. The consequences of not doing it the right way, we
don't have to look too far to find them, and Mrs. Costner's
case is a case in point.
Related to this case, I heard of situations in which the
authorities were called about an individual similar to in the
case of Ms. Costner's, and they are response was, ``You have
only one guy?'' They said, ``No. We can't take care of it.'' In
this case, obviously, there were 700 warrants so this is what
attracted the attention of law enforcement.
I also wanted to point out that I want to dispel the myth
that the target was the employer. As a matter of fact, one of
the three charges, which was very much related to the Social
Security fraud charge, was use or possession of false identity
document with intent to deceive. Now, that phrase ``with intent
to deceive'' isn't really with intent to deceive the employer.
So that held the employer harmless. Not only that, but that
made it a crime of moral turpitude, which renders the convict
ineligible to even apply for immigration relief.
Ms. Sanchez. Thank you.
I will just--before I yield back my time--will make one
last comment, and that is I find it interesting that, when we
talk tough about getting tough on illegal immigration, we
always talk about criminalizing the immigrant. We never talk
about criminalizing the employer. And I think that, if we made
it a criminal penalty to knowingly hire somebody who was
undocumented, I think a large part of our immigration problem
might be solved. But the employers are typically only let off
with a slap on the wrist or a fine, if that.
And with that I will yield back the balance of my time.
Ms. Lofgren. The gentlelady's time has expired.
The Ranking Member has asked to be recognized for a brief
Mr. King. Thank you, Madam Chair.
This Committee is poised to adjourn with a misconception
hanging in the air, and I would direct the attention to page 10
of Ms. Rhodes's testimony--the U.S. attorney from Alabama--who
in her testimony says, ``Nearly all of the defendants sentenced
to time served had admitted using identification information
that belonged to other people.''
And the specific of it are this: 233 are false use of
identification after admitting the use of an actual person's
identity, 30 for false use of Social Security number after
admitting the use of an actual person's identity and 2 for
false identification to obtain employment after admitting an
actual person's identity.
So the idea that it was a minority, rather than majority,
almost all--nearly all defendants used somebody else's
identity, somebody like Mrs. Costner.
Thank you, and I yield back.
Ms. Lofgren. Gentleman yields back.
I will just note that this--the Ranking Member's comment
really proved the point of the lack of due process because
there was an admission to something that was not true. The
evidence, which is found on page--on point 85 of the
application for the search warrant, shows that the evidence is
that 80 percent of these people had a number that didn't belong
to anybody, and so really it does got to the due process
question of whether these individuals were--pled guilty to
something that there was no factual basis for.
Mr. Lungren. Would the Chairlady yield on that?
Ms. Lofgren. I certainly would.
Mr. Lungren. I believe that affidavit deals with the over
700 people that they were talking about in the first instance,
about half of which, I believe, were not at the site at the
time that the exercise by ICE took place, and the number that
the Ranking Member was talking about was the number that
actually pled, which is a much smaller number than the overall
Ms. Lofgren. I concede the gentleman's point. The further
point being that, since there was no trial, there was no facts
gathering, the only evidence we had was this, and there was no
way to sort the individuals who, in ignorance, pled guilty from
those who--the 80 percent that did not have a number.
I am not going to belabor this point because we have been
here all day. I do want to thank all of the witnesses. People
don't realize that the witnesses are volunteers for our country
come here of their own free will to share information, to
inform the Congress, hopefully, to improve our country.
I will say that I personally find the processes used in the
criminal proceedings to be unusual and provocative and do have
questions about whether they meet the requirements of due
process that is guaranteed in our constitution.
Looking at you, Mrs. Costner, I am so disappointed. I mean,
the law, really, required ICE to do something they didn't do.
They were busy doing things with people who weren't doing
people harm, and they wouldn't take the time to deal with your
situation when harm was done, and that is really just so
maddening to me and, I think, to all of us.
So we will be adjourning now. Our hearing is open for 5
days. We may have additional questions in writing for you, and
if so, we would ask that you respond as promptly as you can.
And, again, many, many thanks to all of you for being here
and for helping to shed some light on this situation.
Before adjourning, I will just note that Mr. Gutierrez will
be--and several other Members of Congress--will be going to
Postville--at their own expense, not as a part of--official
part of this Committee--to investigate matters further this
weekend, and we look forward to getting their feedback after
that trip is concluded.
And with that, this hearing is adjourned.
[Whereupon, at 4:44 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Hilda L. Solis, a U.S. Senator from
the State of California
I would like to applaud Chairwoman Lofgren and the members of the
House Judiciary Subcommittee on Immigration for holding this hearing
about the detrimental impact of immigration raids. Since 2006, the
Immigration and Customs Enforcement Agency (ICE) has engaged in
unprecedented workplace raids. The Bush Administration and its allies
have chosen an enforcement only immigration strategy. These punitive
enforcement initiatives ignore the hardworking contributions of
immigrants and are affecting the well-being of immigrant communities.
From the Swift raids in 2006 to the raid in Postville, Iowa, ICE's
actions have left children and other vulnerable populations without
proper care and supervision and limited legal representation. Nearly
400 immigrants were arrested at the workplace raid on the
Agriprocessors plant in Postville, Iowa. This ICE raid was the largest
workplace raid conducted by the Bush administration on a single site.
The day following the raid approximately half of the school system's
600 students were absent, including 90 percent of Latino children,
because their parents were arrested or in hiding.
Today, the families in Postville continue to struggle to cope with
the aftermath of the raid with family members awaiting deportations or
living under house arrest. A recent New York Times article highlighted
the detrimental impacts of the Postville raid, the largest in the
nation, on the lives in the local community. The raid has been
described as ripping ``the heart out of the community.'' As a nation
built on family values, these enforcement only tactics are not only
damaging children, families and communities, but ripping at the fabric
upon which our nation was built.
Separating families puts children at risk of economic hardship and
psychological trauma. We must ensure that as immigration laws are being
enforced that our nation's children are not at risk. That is why I have
introduced the Families First Immigration Enforcement Act (H.R. 3908),
which would ensure that immigrant raids are humane and children are
protected. This legislation would protect immigrant detainees and their
families from mistreatment and unnecessary separation from minor
children, and encourages the release of detainees on humanitarian
We cannot turn a blind eye to the injustices that workplace raids
are having on our children and families. As the sponsor of the Families
First Immigration Enforcement Act (H.R. 3980), I will continue to work
with my colleagues in Congress and across the country to find a
solution on how immigration enforcement could be improved to protect
the children and families involved.