[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
    MOVING TOWARD MORE EFFECTIVE IMMIGRATION DETENTION MANAGEMENT 

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

                                HEARING

                               before the

                        SUBCOMMITTEE ON BORDER,
                 MARITIME, AND GLOBAL COUNTERTERRORISM

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 10, 2009

                               __________

                           Serial No. 111-47

                               __________

       Printed for the use of the Committee on Homeland Security
                                     

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                     COMMITTEE ON HOMELAND SECURITY

               Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California          Peter T. King, New York
Jane Harman, California              Lamar Smith, Texas
Peter A. DeFazio, Oregon             Mark E. Souder, Indiana
Eleanor Holmes Norton, District of   Daniel E. Lungren, California
    Columbia                         Mike Rogers, Alabama
Zoe Lofgren, California              Michael T. McCaul, Texas
Sheila Jackson Lee, Texas            Charles W. Dent, Pennsylvania
Henry Cuellar, Texas                 Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania  Paul C. Broun, Georgia
Yvette D. Clarke, New York           Candice S. Miller, Michigan
Laura Richardson, California         Pete Olson, Texas
Ann Kirkpatrick, Arizona             Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico            Steve Austria, Ohio
William L. Owens, New York
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
                    I. Lanier Avant, Staff Director
                     Rosaline Cohen, Chief Counsel
                     Michael Twinchek, Chief Clerk
                Robert O'Connor, Minority Staff Director

                                 ------                                

     SUBCOMMITTEE ON BORDER, MARITIME, AND GLOBAL COUNTERTERRORISM

                Loretta Sanchez, California, Chairwoman
Jane Harman, California              Mark E. Souder, Indiana
Zoe Lofgren, California              Michael T. McCaul, Texas
Sheila Jackson Lee, Texas            Gus M. Bilirakis, Florida
Henry Cuellar, Texas                 Mike Rogers, Alabama
Ann Kirkpatrick, Arizona             Candice S. Miller, Michigan
Bill Pascrell, Jr., New Jersey       Peter T. King, New York (Ex 
Al Green, Texas                          Officio)
Eric J.J. Massa, New York
Bennie G. Thompson, Mississippi (Ex 
    Officio)

                     Alison Northop, Staff Director
                          Nikki Hadder, Clerk
                Mandy Bowers, Minority Subcommittee Lead
























                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Loretta Sanchez, a Representative in Congress from 
  the State of California, and Chairwoman, Subcommittee on 
  Border, Maritime, and Global Counterterrorism..................     1
The Honorable Mark E. Souder, a Representative in Congress from 
  the State of Indiana, and Ranking Member, Subcommittee on 
  Border, Maritime, and Global Counterterrorism..................     2

                               Witnesses

Ms. Dora Schriro, Commissioner, New York City Department of 
  Correction:
  Oral Statement.................................................     5
  Prepared Statement.............................................     7
Mr. Christopher L. Crane, Vice President, Detention and Removal 
  Operations, American Federation of Government Employees 
  National ICE Council-118:
  Oral Statement.................................................    10
  Prepared Statement.............................................    12
Mr. Donald M. Kerwin, Jr., Vice President for Programs, Migration 
  Policy Institute:
  Oral Statement.................................................    19
  Prepared Statement.............................................    20
Ms. Brittney Nystrom, Senior Legal Advisor, National Immigration 
  Forum:
  Oral Statement.................................................    29
  Prepared Statement.............................................    31
Mr. Mark Krikorian, Executive Director, Center for Immigration 
  Studies:
  Oral Statement.................................................    39
  Prepared Statement.............................................    40

                                Appendix

Questions From Chairwoman Loretta Sanchez for Dora Schriro.......    63
Questions From Chairman Bennie G. Thompson for Dora Schriro......    63
Questions From Chairwoman Loretta Sanchez for Christopher L. 
  Crane..........................................................    63
Questions From Chairman Bennie G. Thompson for Christopher L. 
  Crane..........................................................    66
Questions From Chairwoman Loretta Sanchez for Donald M. Kerwin, 
  Jr.............................................................    68
Questions From Chairman Bennie G. Thompson for Donald M. Kerwin, 
  Jr.............................................................    70
Questions From Chairwoman Loretta Sanchez for Brittney Nystrom...    72
Questions From Chairman Bennie G. Thompson for Brittney Nystrom..    74


     MOVING TOWARD MORE EFFECTIVE IMMIGRATION DETENTION MANAGEMENT

                              ----------                              


                      Thursday, December 10, 2009

             U.S. House of Representatives,
                    Committee on Homeland Security,
              Subcommittee on Border, Maritime, and Global 
                                          Counterterrorism,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:09 a.m., in 
Room 311, Cannon House Office Building, Hon. Loretta Sanchez 
[Chairwoman of the subcommittee] presiding.
    Present: Representatives Sanchez, Harman, Lofgren, Cuellar, 
Kirkpatrick, Pascrell, Green, and Souder.
    Ms. Sanchez [presiding]. Good morning, everybody. The 
subcommittee will come to order, and the Subcommittee on 
Border, Maritime, and Global Counterterrorism is meeting today 
to receive testimony on moving toward more effective 
immigration detention management.
    Today we are gathering to hear testimony from key 
stakeholders and advocates on the current immigration detention 
system and the challenges to reforming detention standards.
    This hearing comes at a crucial time since the Department 
of Homeland Security is currently considering how to reform and 
overhaul the current system.
    This past August, Immigration and Customs Enforcement, or 
ICE, Assistant Secretary John Morton and Secretary Napolitano 
highlighted vast changes that they plan to make to the 
immigration detention system.
    As someone who has advocated for improved medical treatment 
at detention facilities, for example, I am pleased that these 
changes are likely to include the hiring of health and medical 
experts as part of the new Office of Detention Policy and 
Planning.
    As a follow-up to this hearing, early next year we will 
conduct a second hearing to hear directly from ICE about their 
proposals and their plans to improve the detention system. But 
today we want to hear from you.
    As an advocate for improved and robust alternative-to-
detention programs for vulnerable populations and non-criminal 
aliens, I am interested to hear what the witnesses today will 
suggest for a program to move forward.
    Since the enactment of the Illegal Immigration Reform and 
Immigrant Responsibility Act in 1996, immigrant detainees have 
reached an all-time high of 33,400 people.
    That is astonishing, considering that in 1996 the amount 
was under 9,000, but it is not surprising considering that 
almost $800 million, the largest expenditure for ICE, is spent 
annually on detention bed acquisition.
    I would like to hear from our panel of witnesses about what 
ideas they have to move beyond ``bed acquisition'' as a 
detention strategy.
    Furthermore, ICE currently uses a web of detention 
facilities, ranging from contract detention facilities to over 
350 local and State facilities, along with Federal-Government-
run facilities.
    Unfortunately it seems like this variety of facilities has 
made it difficult to ensure that there are some National 
standards that are being adhered to at all of the facilities.
    So I believe it is extremely important that any detention 
facility acting on behalf of the United States adhere to a 
clear and standard level of oversight and accountability.
    With the opportunity to discuss these issues today, and the 
wide range of perspectives our panel represents, my hope is 
that we will hear about specific actions and policy changes 
that need to be taken in order to improve the system.
    As we all know, the concerns and the issues that I have 
outlined today are just some of the many challenges that we 
face in overhauling our detention system. But this is part of 
what our committee oversees.
    On a final note, it is important to recognize that of the 
thousands of detainees being held in our detention facilities, 
58 percent of them have no known criminal history. However, 
they are still held in expensive criminal detention facilities.
    So I thank our witnesses today, and I look forward to your 
testimonies and ideas.
    Now I yield to my Ranking Member, the gentleman from 
Indiana, Mr. Souder, for his time.
    Mr. Souder. Thank you, Madam Chairwoman, and we worked 
together on many issues and agree on many, but I have 
significant concerns about the tone of this hearing.
    It is one thing to advocate for facilities to be safer or 
more humane. However, what we are doing is holding people who--
and we have done those hearings in the past, and this is for 
people who have been arrested.
    It is entirely one thing to argue that we are holding too 
many aliens in detention facilities, and they should be kept in 
facilities nicer than those available to U.S. citizens who have 
been arrested.
    The very basic fact is that aliens in detention facilities 
are there because they have been arrested for violating U.S. 
law. Under existing law, the penalty for illegal presence is up 
to 6 months in prison, with a maximum sentence of 10 years for 
multiple reentries. This is outside the penalty for any other 
criminal act they may have committed.
    I think the most effective immigration reform is to truly 
enforce the laws on the books. Detention is important for 
homeland security, public safety, and is a deterrent for 
illegal border crossers and false claims of asylum.
    In March 2007 this subcommittee held a two-part hearing on 
alien detention. Then-ICE director for detention and removal, 
John Torres, testified that 90 percent of aliens released from 
detention with a notice to appear absconded and never showed up 
for their immigration hearings.
    It is not safe or efficient to release thousands of foreign 
nationals that are in this country illegally. They should be 
held in detention centers until their cases are heard and 
resolved.
    Aliens in detention facilities are not here on vacation. 
There is a flexibility to discuss how to improve the quality of 
facilities, since that seems to be a concern, but they should 
not be kept in facilities that are better than we give to 
citizens who are arrested and awaiting trial.
    I agree that they should be safe and humane, and we have 
held hearings because there have been problems with safe and 
humane standards in some of these facilities.
    But violent criminals should not be--and I agree that 
violent criminals should not be mixed with aliens who have not 
committed violent crimes like we try not to do in our American 
prison system.
    Controls should be in place to ensure that gang violence 
does not escalate in detention centers. Often they self-
identify, and they do that in the American prison system, too, 
so don't get two people from the same gang in the same cells. 
Those are legitimate concerns that we should be looking at.
    However, when we start talking about releasing thousands of 
arrested people who have come here illegally on their own 
recognizance, despite the high absconding rates, giving them 
free dental care outside of emergency services, or renting 
hotels, I think we have crossed into the ridiculous.
    Non-citizens arrested, held in detention centers, have 
broken the law. They should not have better facilities or 
privilege that U.S. citizens who have broken the law are 
getting held in prison. That should be the basic standard here.
    Are we going to give somebody who has been arrested for 
illegally entering the United States better health care, better 
facilities, more comfortable facilities, than somebody who is 
an American citizen?
    It would be impossible for me to explain to Hoosiers that 
the Department of Homeland Security is going to purchase a 
number of hotels around the country in order to house illegal 
and criminal aliens in comfortable, low-security settings, 
because they don't see that as fair when American citizens 
don't get the same treatment.
    I think it is important for us to discuss the role 
detention plays in immigration enforcement and border security, 
especially as immigration reform legislation is likely to be a 
focus again next year.
    This is not the time to scale back, create a whole bunch of 
other arguments, because if we do, we simply are not going to 
be able to get true immigration reform, because part of this is 
we have had our quotas too low.
    If our quotas are too low, we start to develop a backlog of 
American demand. But the Americans want to see the border 
sealed. They want to see people who have broken the law held 
accountable. In my opinion, the thrust of this could set us 
back in trying to have true immigration reform.
    I yield back.
    Ms. Sanchez. I thank my Ranking Member. Well, that is one 
of the reasons why we have everybody before us and why we will 
have ICE also, to see what type of facilities and just as a 
side note, Mr. Souder, I am more concerned about the cost of 
incarcerating people, and what type of people we are 
incarcerating, and who we are holding them together, and 
whether there are emergency services available.
    More importantly, if these people have a claim under 
current law to be in this country, that they get through the 
process in a timely manner in order to put that forward.
    My understanding is sometimes because of the diverse 
patchwork of detention facilities that we have, people may be 
moved around so much that they actually don't get their hearing 
or their judicial process as we would anticipate they could, 
especially if they have some claim--some rightful claim to be 
here under the current law.
    So that is why I called this hearing, not to suggest that 
we would purchase Hilton hotels. They are not good investments 
these days anyway.
    The Chairwoman now will recognize the Chairman of the full 
committee--is not here, nor is the other, so other Members of 
the subcommittee are reminded that under the committee rules, 
opening statements may be submitted for the record.
    I will welcome our panel of witnesses. Our first witness, 
Dr. Dora Schriro--is that correct?--was appointed as the 
commissioner of the New York City Department of Correction on 
September 21, 2009.
    Immediately prior, she had served as special advisor to 
Secretary of Homeland Security Janet Napolitano on immigration 
and customs enforcement and detention and removal, and director 
of the Office of Detention Policy and Planning for the 
Department.
    In that role, she directed work on the Department's plan to 
overhaul the Nation's immigration detainee system. Dr. Schriro 
has also served as the director of the Arizona Department of 
Corrections and the Missouri Department of Corrections.
    Welcome.
    Our second witness, Mr. Christopher Crane, has been an 
immigration enforcement agent at the Department of Homeland 
Security since 2003. In that capacity, he has worked in the 
Criminal Alien Program, or CAP, as we know it, and has served 
as a member of an ICE fugitive operations team.
    Prior to joining ICE, Mr. Crane served this Nation for 11 
years in the U.S. Marine Corps.
    Welcome.
    Our third witness, Mr. Donald Kerwin, Jr., is vice 
president for programs at the Migration Policy Institute, or 
MPI, overseeing all of MPI's national and international 
programs.
    Prior to joining MPI, Mr. Kerwin worked for more than 16 
years at the Catholic Legal Immigration Network. Mr. Kerwin is 
also an advisor to the American Bar Association's commission on 
immigration and a member of the Council on Foreign Relations' 
immigration task force.
    Welcome.
    Our fourth witness, Ms. Brittney Nystrom, is the senior 
legal advisor at the National Immigration Forum. In that 
position, she focuses her advocacy on civil rights and due 
process issues facing immigrants and asylum seekers.
    Previously, Ms. Nystrom represented detained immigrants in 
removal proceedings and advocated for humane detention 
conditions as a legal director at the Capital Area Immigrants' 
Rights Coalition.
    Welcome also to you.
    Our fifth witness, Mr. Mark Krikorian, has served--is it 
Armenian?--Krikorian has served as executive director of the 
Center for Immigration Studies since 1995. He holds a master's 
degree from the Fletcher School of Law and Diplomacy, a 
bachelor's degree from Georgetown University.
    Before joining CIS Mr. Krikorian held a variety of 
editorial and writing positions.
    So without objection, the testimony--your full statements--
will be inserted into the record. I will ask each of the 
witnesses--it is the only panel we have, and hopefully we won't 
have votes or anything called so we can actually get a good 
discussion going.
    I now ask the witnesses to please summarize your statements 
for 5 minutes or less, and we will begin with Dr. Schriro.
    Welcome.

    STATEMENT OF DORA SCHRIRO, COMMISSIONER, NEW YORK CITY 
                    DEPARTMENT OF CORRECTION

    Ms. Schriro. Good morning, Ms. Sanchez, Mr. Souder, Members 
of the subcommittee. I am the author of the report on 
preliminary assessment with recommendations for improvements, 
and I am pleased to speak with you today.
    As a matter of law, civil detention, unlike criminal 
incapacitation--and yet civil and criminal detainees tend to be 
seen by the public as comparable, and typically both confined 
populations are managed in similar ways by governments.
    With only a few exceptions, the facilities that ICE used to 
detain aliens were built and operate as jails. Additionally, 
ICE adopted corrections detention standards to guide the 
operation of its facilities.
    Establishing standards and expressing expectations for 
civil detention are our challenge and our opportunity.
    The commissioning and the release of the report speaks to 
this administration's commitment to systems reform. The 
directive by the Secretary within a week of her confirmation 
was plain-spoken and heartfelt, to conduct a study and prepare 
a report that identified and addressed the root causes 
concerning the--I am sorry, concerns impacting detention and 
removal operations.
    Likewise, my access to information, detention facilities, 
and the detainee population was authorized without hesitation 
or equivocation by Assistant Secretary Morton. It is their 
resolve that resulted in its publication and will produce the 
reforms to come.
    The information for this report came from my tours of 25 
detention facilities; analyses of agency records and reports; 
conversations with detainees and staff; meetings with over 100 
NGOs; discussions with DHS, DOJ, Members of Congress and their 
staffs; and studies authored by Government and others, 
including the GAO, DHS, ABA, and the United Nations.
    I drew, of course, from my own experience and work history, 
published research, formal education, and training.
    The report begins with a description of ICE detention 
policy and continues with findings based upon my analysis. Here 
are several of those core findings. ICE operated the largest 
detention and supervised release program in the country.
    A total well in excess of 375,000 aliens from 221 countries 
were in custody or under supervision by ICE during fiscal year 
2008, with a slightly larger number at the end of 2009.
    Primarily responsible for its operation, our law 
enforcement personnel, who has extensive expertise performing 
detention functions--however, with little experience in the 
design or delivery or the acquisition and evaluation of 
detention facilities and community-based alternatives.
    In application, the operation of detention facilities was 
delegated to county sheriff departments and the private sector. 
On-site monitoring and annual evaluations were also performed 
primarily by the private sector.
    ICE lacked a number of the basic information and 
informational systems and critical planning and management 
tools necessary to operate a system of this size and magnitude. 
Instead, it employed a number of strategies to provide housing 
and health care but had difficulty sustaining detention and 
health care systems.
    In terms of the day-to-day operations, 24 field offices 
were responsible for the acquisition and assignment of 
detainees to beds. Decentralized acquisition and assignments 
impacted bed utilization, increased length of stay and numbers 
of transfers, and aggravated disparities between arrest 
activity and bed capacity.
    Conditions of detention varied by location. Access to 
services was limited, as was access to ICE officials difficult. 
Idleness was pronounced. The method and means by which aliens 
had opportunity to address grievances were lacking.
    Disciplinary decisions were largely delegated to facility 
providers. Still, untoward incidents by detainees were very few 
in number.
    Finally, the policies that ICE adopted and the practices 
that it employed imposed more restrictions and incurred more 
costs than were necessary to effectively manage most of the 
alien population. I earnestly believe that ICE wants to do 
better, and I see that it is taking steps in that direction.
    My report was written with one purpose in mind--not as a 
criticism of the current practices but an examination and an 
articulation of a vision for the future, a system about how we 
could succeed as Government.
    To that end, the report includes a number of key 
recommendations in seven areas--population management, 
alternatives to detention, detention management, programs 
management, health care, special populations, and 
accountability.
    Due to the unavailability of time, I won't be able to touch 
on any of them now but perhaps can do so in the course of your 
questions.
    In closing, I would like to say that the report was 
intended to be vetted within the Department and ICE, by 
Congress and the many stakeholders and organizations, all of us 
committed to improvement. I appreciate your invitation for me 
to participate in this very important process.
    [The statement of Ms. Schriro follows:]
                   Prepared Statement of Dora Schriro
                           December 10, 2009
    Good morning, Ms. Sanchez, Mr. Souder, and Members of the 
subcommittee. My name is Dr. Dora Schriro. I was privileged to serve as 
Special Advisor on ICE Detention and Removal Operations to DHS 
Secretary Napolitano and as the first Director of the Office of 
Detention Policy and Planning at ICE. I authored A Report on the 
Preliminary Assessment of ICE Detention Policies and Practices and A 
Recommended Course of Action for Systems Reform this past September.
     the challenge and the opportunity: a system of civil detention
    As a matter of law, civil detention is unlike criminal 
incapacitation and yet, civil and criminal detainees tend to be seen by 
the public as comparable and typically, both confined populations are 
managed in similar ways by Government. Each group is ordinarily 
detained in secure facilities with hardened perimeters often in remote 
locations at considerable distances from counsel and their communities. 
With only a few exceptions, the facilities that U.S. Immigrations and 
Customs Enforcement (ICE) used to detain aliens were built, and 
operate, as jails and prisons to confine pretrial and sentenced felons. 
Their design, construction, staffing plans, and population management 
strategies were based largely upon the principles of command and 
control. Additionally, ICE adopted detention standards that were based 
upon corrections law and promulgated by correctional organizations to 
guide the operation of jails. Establishing standards and expressing 
expectations for civil detention are our challenge and our opportunity.
                          introductory remarks
    The commissioning and the release of the Report, is representative 
of this administration's commitment to systems reform. The directive by 
Secretary Janet Napolitano within a week of her confirmation was 
plainspoken and heartfelt: To conduct a study and prepare a report that 
identified and addressed the root causes of concerns impacting 
detention and removal operations. Likewise, access to information, 
detention facilities, and the detainee population, was authorized 
without hesitation or equivocation by Assistant Secretary John Morton. 
It is their resolve that resulted in its publication and will produce 
the reforms to come.
    The information for this Report came from my tours of 25 detention 
facilities across the country; analyses of agency records, reports, and 
other documents; conversations with detainees and facility staff; 
meetings with over 100 non-governmental organizations; discussions with 
employees at the Departments of Homeland Security (DHS) and Justice 
(DOJ), Members of Congress and their staff and State and local elected 
officials; and studies authored by Government and others including the 
Government Accountability Office (GAO), Department of Homeland Security 
(DHS), the United Nations (UN), the American Bar Association, (ABA), 
and many non-Governmental organizations. I drew as well as upon my 
professional work history, research, and formal education, and 
training.
                             core findings
    The Report begins with a description of ICE detention and removal 
policy, procedures, and practices and continues with findings based 
upon analyses of its activities and outcomes. Here are several.
   ICE operated the largest detention and supervised release 
        program in the country. A total of 378,582 aliens from 221 
        countries were in custody or supervised by ICE in fiscal year 
        2008; activities in fiscal year 2009 remained at a similar 
        level. On September 1, 2009, ICE detained 31,075 aliens. It 
        supervised an additional 19,169 aliens in the community on 
        alternatives to detention (ATD) programs.
   On September 1, about two-thirds (66 percent) of the 
        detained population were subject to mandatory detention. 
        Approximately one-half (51 percent) were felons of which; 
        around one-tenth (11 percent) had committed violent crimes. The 
        majority (60 percent) of aliens in ICE custody were encountered 
        when in criminal custody; about one-half (48 percent) of all 
        admissions to ICE during the first 6 months of fiscal year 2009 
        originated through the Criminal Alien Program, another 12 
        percent were identified through 287(g) partnerships. Although 
        both of these programs focused on criminal aliens, many aliens 
        encountered through them did not have criminal convictions.
   On average, an alien was detained 30 days however; time in 
        detention varied appreciably between those pursuing voluntary 
        removals and those seeking relief. As much as 25 percent of the 
        detained population was released within a day of admission, 38 
        percent within a week, 71 percent in less than a month, and 95 
        percent within 4 months. Less than 1 percent of all admissions, 
        about 2,100 aliens, were held for a year or more. Due to 
        differences in docket management, the time to disposition was 
        appreciably longer for aliens assigned to alternatives to 
        detention programs.
   ICE lacked basic information and information systems and 
        critical planning and management tools. It operated without 
        benefit of cost models, site selection criteria, population 
        forecasts and bed plans, validated custody classification and 
        risk assessment instruments, a detainee locator system and 
        daily count sheets, uniform medical and mental screenings and 
        scores, electronic detention and medical record systems, 
        capacity reports, etc. Where ICE employed other systems' 
        strategies, impact was often limited by application.
   The acquisition and renewal of detention beds, the 
        assignment of detainees to facilities and ATD programs, and the 
        transportation of detainees between facilities were 
        accomplished in the field by the 24 field offices. 
        Decentralized acquisition, assessments, and assignments 
        impacted bed utilization, increased lengths of stay and numbers 
        of transfers, and aggravated disparities between arrest 
        activity and bed capacity.
   ICE was comprised primarily of law enforcement personnel 
        with extensive expertise performing removal functions, but not 
        in the design and delivery or in the acquisition and evaluation 
        of detention facilities and community-based alternatives. The 
        operation of detention facilities was delegated to county 
        sheriffs departments and the private sector. On-site monitoring 
        and annual evaluations were performed primarily by the private 
        sector. ICE contracted with one vendor for on-site monitoring 
        at 53 locations, representing a majority of beds but about one-
        sixth of the facilities it used. It contracted with another 
        vendor to conduct an annual assessment of compliance with 
        detention standards at all locations. ICE maintained some 
        presence in most facilities, primarily by means of detention 
        officers who performed case removal functions.
   Fewer than 50 of those 300 facilities averaged 100 or more 
        detainees daily with about one-half of the entire detained 
        population secured in 21 locations. Facilities were designated 
        by length of stay, with 93 percent of all beds approved for use 
        for more than 72 hours. With the exception of families with 
        minor children, special populations were dispersed.
   Conditions of detention varied by location. Where facilities 
        were occupied by both civil and criminal detainees ICE 
        detainees, and particularly female detainees, were 
        disadvantaged by more restricted movement and less access to 
        programs. These conditions were compounded at locations where 
        civil and criminal detainees were assigned to the same housing 
        units. In general, idleness was pronounced. Access to legal 
        services, recreation, religious activities, and visitation 
        varied by facility location and operation. Detainees whose 
        lengths of stay were longer were particularly impacted. The 
        methods and means by which to address grievances were infirm. 
        Disciplinary decisions were largely delegated to facility 
        providers. Still, untoward incidents by detainees were few in 
        number.
   ICE utilized a variety of strategies to provide health care 
        to the detained population but these strategies did not 
        constitute a health care system. Detainees were assigned to 
        detention facilities prior to assessing their health care 
        requirements sometimes resulting in high-need detainees being 
        placed at facilities with limited on-site health care or 
        routine oversight. Health care records were not maintained or 
        stored centrally. Medical summaries were not always provided 
        when detainees were transferred. Approval of off-site health 
        care was cumbersome and subject to delay. The assessment, 
        treatment, and management of pandemic and contagious diseases 
        were inconsistent. Some facilities were unable to manage large-
        scale outbreaks without impacting other locations' operations.
   The policies that ICE adopted and the practices that it 
        employed, imposed more restrictions and incurred more cost than 
        were necessary to effectively manage most of the alien 
        population.
                          key recommendations
    The Report was written with one purpose in mind: Not as a criticism 
of the current practices or as fuel for parties on either side of an 
issue, but as an examination and articulation of a vision for the 
future--a vision of how a civil system of detention could be 
structured, organized, and calibrated to match the ICE mission and to 
ensure its success.
    To that end, the Report also outlined a framework of reforms and 
recommendations in seven areas necessary to the design and delivery of 
a system of civil detention. These seven components are Population 
Management, Alternatives to Detention, Detention Management, Programs 
Management, Health Care, Special Populations, and Accountability. Among 
its recommendations are these.
   Population Management is the continuum and the conditions of 
        control exercised by ICE over aliens in its custody and under 
        its supervision from least to most restrictive, and the 
        strategies by which aliens are managed pending their removal or 
        relief. Humanely detain and supervise aliens in the least 
        restrictive settings consistent with assessed risk and provide 
        health care and other program services commensurate with 
        identified needs. Make the size of the system manageable; 
        reduce the total number of facilities, using only those whose 
        design supports the delivery of care, custody and control for 
        civilly detained general and special populations and otherwise 
        meet enumerated expectations. Centralize procurement, 
        regionalize oversight, and localize on-site supervision. Align 
        facility locations and bed capacity with arrest activity, 
        lengths of stay, and special populations. Locate facilities 
        nearby consulates, pro bono counsel, EOIR services, and 24-hour 
        emergency medical care. Develop a National system of 
        transportation. Elevate detention duties within ICE as a 
        distinct discipline to sustain its redesign and delivery.
   Detention Management focuses on the core operating 
        assumptions that affect conditions of civil detention. Use 
        validated instruments to assess propensity for violence and 
        need for health care and other services, and to inform 
        assignment to facilities. Do not comingle custody 
        classifications and civil with criminal detainees. Restrict 
        transfers between judicial circuits and when detainees are 
        represented by counsel, within circuits. Develop specialized 
        caseloads. Reduce idleness; expand access to dayrooms and 
        support space in other parts of the facility consistent with 
        custody classification and comparable to other populations 
        detained at that location. Ensure capacity is proportionate and 
        appropriate to the size of the population. Monitor disciplinary 
        practices; limit utilization of punitive segregation. Maintain 
        contact with detainees regardless of location. Improve formal 
        and informal on-site grievance processes. Provide timely 
        translation services.
   Alternatives to Detention (ATD) are the community-based 
        supervision strategies that make up a significant portion of 
        less restrictive conditions of control. Use validated 
        instruments to assess and periodically reevaluate risk of 
        absconding, and to inform the level and kinds of supervision to 
        assign. Expand program capacity to serve those who are 
        statutorily eligible and otherwise qualified. Enroll eligible 
        aliens at the earliest opportunity; periodically reevaluate the 
        detained population for eligibility. Utilize electronic 
        monitoring only when risk of absconding warrants. Maintain an 
        effective fugitive apprehensive response.
   Health Care, including medical, mental health, and dental 
        care, is a fundamental right of all detainees in ICE custody. 
        Establish an integrated health care system for medical, mental, 
        and dental health, with initial assessments, comprehensive 
        examinations, and centralized medical records to inform 
        facility and housing assignments, and timely and necessary care 
        regardless of the anticipated date of removal or release. 
        Convene a panel of health care professionals to establish 
        standards of care for detainees. Maintain an infection control 
        program and surveillance system. Integrate wellness activities 
        and adopt preventive health care practices. Ensure medication 
        is dispensed timely and medical diets are provided. Ensure 
        compliance with ADA requirements.
   Programs Management encompasses the design and delivery of 
        law library and other activities affording aliens access to the 
        court; indoor and outdoor recreation; family contact including 
        visitation and communication by mail and phone; and religious 
        activities. Allocate sufficient space and afford additional 
        time to access programs. Provide translation services and 
        programs in more than one language. Support family and attorney 
        contact with improved visitation and mail service and lower 
        phone cost. Expand the Legal Orientation Program. Comply with 
        RLUIPA.
   Special Populations include families with minor children; 
        females; unaccompanied minors; the ill and infirm; asylum 
        seekers; and other vulnerable populations. Consolidate special 
        populations to improve delivery of special services and to 
        lower cost. Modify population, detention, ATD, and programs 
        management to meet their unique needs. Assign female staff to 
        supervise female detainees or adopt knock-and-announce 
        practices. Discontinue utilization of segregation cells for 
        medical isolation and suicide observation. Select and assign 
        aliens to appropriate facilities.
   Accountability concerns the operating framework process and 
        tenets for decision-making by which ICE provides oversight, 
        pursues improvement, and achieves transparency in the execution 
        of each part of its plan. Develop and adopt civil detention 
        standards and operating procedures consistent with civil 
        detention. Expand Federal oversight of key detention 
        operations, track performance, and annually evaluate outcomes. 
        Discontinue use of detention facilities that perform poorly. 
        Assign on-site expert Federal employees of rank to oversee 
        detention activities, to intercede whenever warranted, and to 
        ensure the integrity of grievance and disciplinary processes. 
        Optimize the presence of deportation officers with additional 
        training and supervision. Create an office within ICE to 
        receive and to respond to complaints and concerns.
                               next steps
    The Report was written to be vetted within the Department and ICE, 
Congress, and the many stakeholders and organizations also committed to 
improvement. It is also important that the progress of recent months 
toward equipping ICE with management tools and a deeper understanding 
of detention policy, both critical to its mission, should continue. 
Some recommendations can be actualized quickly. Others may require 
further debate, additional analysis, and consideration. A number of 
them are already underway. Whether realized immediately or 
incrementally, these changes and this improvement are within our reach 
nonetheless and should be pursued.
    Thank you for this opportunity to appear before you. I welcome your 
comments and questions.

    Ms. Sanchez. Thank you so much.
    Now we will hear from Mr. Crane to summarize your statement 
for 5 minutes or less. Mr. Crane.

 STATEMENT OF CHRISTOPHER L. CRANE, VICE PRESIDENT, DETENTION 
   AND REMOVAL OPERATIONS, AMERICAN FEDERATION OF GOVERNMENT 
               EMPLOYEES NATIONAL ICE COUNCIL-118

    Mr. Crane. Madam Chairwoman Sanchez, Ranking Member Souder, 
Members of the subcommittee, good morning.
    Regarding the proposed detention reforms, I will begin by 
saying that the union and field managers were excluded from 
participating in their development, which we believe was a real 
mistake.
    The union has no detailed written information regarding the 
reforms. We can only address statements made by agency 
representatives during briefings on the reforms held in 
November of this year.
    While we applaud the idea of reform, agency proposals made 
known to the union appear to put detainees and officers at 
greater risk than ever before. ICE will build what it is 
referring to as low-custody open-campus facilities that will 
house approximately 2,000 detainees who are free to move 
throughout the respective facility 24 hours a day.
    When ICE used the terms low-custody and open-campus, we 
initially envisioned non-criminal detainees only. However, 
according to agency representatives, the low-custody open-
campus facilities will hold any convicted criminal not 
convicted of the following five charges--murder, rape, 
kidnaping, assault with a deadly weapon, and armed robbery.
    This list of charges does not exclude many other 
potentially dangerous groups of criminals from being placed in 
low-custody facilities such as drug dealers, gang members, 
sexual predators, and any person convicted of a violent crime 
that did not involve a weapon. This would include aggravated 
assault and assault of a police officer.
    With the agency's announcement that ICE will have a Nation-
wide detainee population of 85 to 90 percent convicted 
criminals within the next 12 months, we can only assume that 
these facilities will be holding similar populations. 
Surprisingly, our representatives were told that the non-
criminal detainees will also be held in these same facilities.
    We do not believe that these facilities are truly low-
custody detention, nor do we believe that they will provide the 
appropriate safeguards for non-criminal detainees.
    In terms of ICE employees, our concerns are similar. In the 
midst of criminal populations such as these, our officers 
should be afforded every safeguard afforded to any State or 
Federal officer working with criminal detainees. The open-
campus environment is clearly unsafe and impractical.
    ICE has also--excuse me, proposed that detainees will have 
full contact visitation. However, unlike other agencies, ICE 
officers will be barred from performing strip searches to 
prevent dangerous weapons and drugs from entering ICE 
facilities.
    The council views this proposal as unacceptable based on 
the safety hazards it presents to ICE detainees, ICE officers, 
and contract guards.
    With regard to contract facilities and contract guards, DRO 
officers in the field report that inappropriate conduct by 
contract guards is not uncommon.
    The specific allegations made against the contract guards 
range from sexual misconduct with detainees and rape to the 
smuggling of illegal contraband into facilities such as illegal 
drugs. Officers report that ICE managers are aware of the 
problem but don't seem interested in doing anything about it.
    We believe that the open campus environment will only make 
this type of conduct more prevalent as detainee populations 
will be free to move about the building unescorted, making them 
far more accessible to contract guards and this type of 
misconduct.
    In an attempt to provide better oversight in the 
facilities, the agency has proposed the hiring of 23 detention 
service managers. Such a small group is unlikely to have any 
significant impact on increasing oversight.
    Prior to ICE, there was a position within the Immigration 
and Naturalization Service called the Detention Enforcement 
Officer, or DEO. INS had officers to perform law enforcement 
functions as well as officers to perform detention, 
transportation, and court duties.
    It is a model that many law enforcement organizations 
continue to use with great success. We believe that DEOs would 
provide ICE's National detention program with the increased 
physical presence and oversight that is currently lacking.
    Finally, I do not think it would be an exaggeration to say 
that the majority of problems within our detention system as 
identified by the agency involve contract workers and not 
Federal employees.
    For this reason, and because the administration's professed 
opposition to unnecessary and inappropriate outsourcing, we 
were surprised to learn that on September 1, 2009 the agency 
awarded a new contract for $71.5 million to an outside 
contractor.
    These contractors will again be performing DRO work. in 
light of the problems we are now trying to overcome with regard 
to contract workers, we simply don't understand the agency's 
logic.
    Thank you for the opportunity to testify here today. I hope 
you found the information that we provided to you useful as you 
consider ways to improve the operations of the ICE DRO program. 
Thank you.
    [The statement of Mr. Crane follows:]
               Prepared Statement by Christopher L. Crane
                           December 10, 2009
    Chairman Sanchez and Members of the subcommittee: Good morning. My 
name is Chris Crane and I am the vice president of Detention and 
Removal Operations (DRO) of the National Immigration and Customs 
Enforcement Council 118 of the American Federation of Government 
Employees (AFGE). Council 118 is the union representing approximately 
7,200 ICE employees who work primarily in Detention and Removal 
Operations. I have been an ICE Immigration and Customs Enforcement 
Officer for the past 6.5 years. During that time, I have observed many 
well-intentioned plans developed by this agency to improve operations, 
only to see them fail due to a lack of resources, commitment, or 
leadership.
    In my capacity as an ICE Immigration Enforcement Agent (IEA), I 
have worked the Criminal Alien Program (also known as CAP) for 
approximately 5 years. CAP is a program within ICE which targets 
criminal aliens who were first arrested by local police or other 
Federal law enforcement agencies and charged criminally. I have also 
served as a member of an ICE Fugitive Operations Team whose primary 
function was to apprehend foreign nationals who had not departed the 
United States after receiving an Order of Deportation from a Federal 
immigration judge.
                       ice detention reform plan
    Before commenting on the ICE DRO plan, I want to make clear that 
the Union has had no involvement in developing the detention reforms 
which are currently being proposed by ICE and the Department of 
Homeland Security. The Union learned of ICE's plan to reform its 
detention facilities through a CNN broadcast. Since that time, our 
requests to participate in the planning or implementation of these 
reforms or provide any type of input have been unsuccessful. It was not 
until November 10-13, 2009, that three Union representatives attended 
briefings regarding the agency's proposed reforms. Since no detailed 
written plans have been provided to the Council, I can only address 
verbal statements made by ICE and DHS representatives during these 
briefings, which were later communicated to me by union representatives 
who were present.
    The Union's overall impression of these proposed reforms is not 
positive. We do not believe that the combined efforts of ICE and DHS 
have resulted in proposals that will effectively safeguard non-criminal 
ICE detainees or ICE employees. In fact, we are quite concerned that 
these proposed changes could potentially result in heightened risks for 
some groups of ICE detainees as well as ICE employees and contract 
guards.
    The agency has proposed the construction of multiple new detention 
facilities throughout the United States. Each facility will house 
approximately 2,000 ICE detainees. The detainees will be allowed to 
move freely throughout each of the new ICE detention facilities 24 
hours a day.
    Phyllis Coven, Acting Director of the ICE Office of Detention 
Policy and Planning (ODPP) stated that one goal in constructing these 
new detention facilities would be to reflect living conditions that we 
might find in our own homes. While these measures clearly reduce 
security within ICE detention facilities, ICE has concurrently 
announced its goal of having a Nation-wide detainee population 
consisting of at least 85 to 90% convicted criminals within the next 12 
months.
    Even though ICE has identified these new facilities as ``low 
custody detention,'' new screening procedures for ICE detainees will 
classify both criminal and non-criminal detainees as ``low custody,'' 
resulting in high criminal populations in these facilities mixed with 
individuals who have had little or no contact with police in their 
lives. With thousands of criminal detainees moving freely about each 
facility, ICE's ability to effectively observe, monitor, and control 
inappropriate behavior and safeguard detainees will be greatly 
diminished. Previously identified problems such as alleged sexual 
misconduct by contract guards with female detainees could rise as 
access to detainee populations will be increased in the open campus 
environment.
                        full contact visitation
    ICE has proposed full contact visitation rights for detainees, but 
maintained its agency-wide ban on conducting strip searches. To our 
knowledge, ICE will be the only Federal or State agency to have such a 
policy. Agency representatives acknowledged that contraband smuggled 
into ICE facilities will increase. With detainee populations of 85% to 
90% or greater convicted criminals, and the unstoppable presence of 
gangs, we believe that this policy on full contact visits without strip 
searches could dramatically increase the presence of illegal drugs and 
weapons inside ICE facilities. When questioned about the proposed full 
contact visits, agency representatives admitted that they were not 
aware of ICE's agency-wide ban on strip searches and therefore did not 
consider that fact when creating the proposal of full contact visits. 
Union representatives and field managers present were unsettled by this 
disclosure.
    These proposed changes (and others like them) demonstrate not only 
a fundamental misunderstanding of who is housed in these facilities, 
but also indicate a stronger desire by the agency to create a 
harmonious environment, rather than a safe and efficient one. The lack 
of security and oversight within the new facilities will negatively 
impact both ICE detainees and ICE employees alike. In the midst of 
criminal populations such as this, AFGE simply does not understand why 
ICE employees will not be provided with the same security measures as 
State, local, and Federal law enforcement officers working in the jails 
and prisons around the Nation where ICE detainees were originally held 
on criminal charges.
                        ice detainee populations
    The majority of ICE immigration-related arrests are presently 
generated by the ICE DRO Criminal Alien Program, and in some areas, its 
non-Federal counterpart, the 287(g) Program. This means the majority of 
ICE arrests and therefore the majority of individuals in ICE custody, 
come from county and State jails. These individuals were arrested by 
another law enforcement agency and charged criminally prior to ICE 
taking them into custody. This information would appear to be in 
conflict with public reports stating that only 50% of ICE detainees are 
convicted criminals. In fact, an ICE representative recently stated 
that only 53% of all ICE detainees have criminal convictions. However 
that same individual was unable to elaborate on the status of the 
remaining 47% of ICE detainees, as is frequently the case with public 
reports on the matter. Of the 47% of unaccounted for ICE detainees, the 
ICE Council believes that as many as 30% to 40% were arrested on 
criminal charges but released to ICE without prosecution because local 
jails and prosecutors Nation-wide are overwhelmed by the criminal alien 
problem and lack the resources to house and prosecute the arrestees. 
This has resulted in ICE becoming a dumping ground for individuals 
arrested on criminal charges who were never cleared of those charges in 
a court of law.
    CAP officers focus on individuals who have been arrested for 
serious crimes such as sex offenses, crimes of violence, and drug 
distribution. It is not uncommon for these prisoners to be released to 
ICE custody without conviction within 10 minutes to 24 hours following 
notification to the jail by ICE of the prisoner's immigration status. 
Virtually none of these prisoners were released to ICE because they 
were cleared of the charges against them in a court of law, but rather 
because county and State detention facilities were overcrowded and 
underfunded. This is an epidemic problem Nation-wide. We believe that 
many of the ICE detainees who were arrested on criminal charges, but 
were never cleared of those charges in a court of law, do pose a 
significant threat to the public, our employees, and most certainly 
other ICE detainees who have no criminal history whatsoever.
    ICE should avoid implementing any policy that allows many of the 
very worst criminals to be released because jails in our local 
communities lack the funding to prosecute. Likewise, ICE cannot ignore 
the criminal arrest records of aliens without convictions when 
classifying them for detention or as part of any overall threat 
assessment. Arrest history and prior immigration history are typically 
the only records available to ICE officers as foreign nationals in the 
United States illegally generally have no other tangible records. 
Ignoring the criminal arrest records of detainees who were not cleared 
of their charges in a court of law is the equivalent of playing Russian 
roulette with the safety of the public, ICE officers, and most 
certainly the other detainees in ICE custody whose safety is our 
responsibility. The Union believes that ICE leadership has an 
obligation to the American public and ICE employees to release more 
accurate statistics regarding detainee populations so that there can be 
transparent and informed discussion with respect to the threat level of 
ICE detainees and its impact on proposed detention reforms.
                       ice low custody facilities
    ICE and DHS defined ``low custody'' as any person who has not been 
convicted of one of the following five charges: Murder, rape, armed 
robbery, kidnapping, or assault with a deadly weapon. By that 
definition, any person who did not receive a conviction for one of 
those five offenses would be housed in the proposed low custody 
facilities. I will begin by saying that the last ICE detainee who 
assaulted me in a detention setting, and received a 13-month Federal 
sentence for assaulting a Federal officer, had never been convicted of 
any of these crimes. Furthermore, since he did not use a weapon in the 
commission of the assault, according to ICE's proposed screening 
criteria, he would still be placed in a low custody ICE facility if 
arrested again. He would be housed with individuals convicted of non-
violent crimes such as DUI or fraud. He may also be housed with 
individuals without a single arrest. He will freely move about the 
facility 24 hours a day with 2,000 other detainees who are almost all 
convicted criminals themselves.
    DHS stated that it is modeling the proposed ICE low custody 
facilities after a model currently in use by the Bureau of Prisons 
(BOP). It is our understanding that BOP prisoners housed in BOP low 
custody facilities have typically proven themselves over long periods 
of time (often years) to be trustworthy or rehabilitated before being 
placed in a BOP low custody prison.
    Conversely, the average custody time of an ICE detainee is just 6 
weeks. This is often closer to 1 to 2 weeks. ICE DRO officers will not 
have years, but instead typically less than 1 full day to observe 
incoming detainees and screen them for low custody detention. DHS has 
proposed that an intake questionnaire be used to screen the detainees 
for placement in the low custody facilities. We believe that any 
questionnaire would have very limited success in ensuring that non-
criminal detainees or unarmed Federal law enforcement officers working 
in these open campus criminal facilities would be safe.
    Similar detainee screening questionnaires currently in use by ICE 
have been ineffective. A recent article in The Houston Chronicle 
entitled ``Criminal Deportees Often Fly Unescorted,'' as well as formal 
complaints by Senator Mary Landrieu and Congressman Jason Chaffetz 
illustrate that fact. All discuss Threat Assessments; a screening 
document used by ICE DRO officers to determine if an ICE detainee who 
must be transported via commercial aircraft is a threat to the public 
and requires an officer escort. ICE DRO officers routinely utilize the 
threat assessment screening questionnaires and advise that certain 
detainees do pose a threat and recommend full officer escorts as a 
safety precaution, only to have ICE supervisors override these 
recommendations because of funding and manpower issues. The end result 
has been that ICE is now routinely placing dangerous convicted 
criminals unescorted on commercial aircraft. The screening 
questionnaire is ineffective because the recommendations of DRO 
officers are ignored. As cited in the news article, one unescorted ICE 
detainee recently charged the cockpit of a commercial jetliner and had 
to be restrained by passengers.
                          assaults on officers
    ICE DRO officers are frequently assaulted by ICE detainees. Because 
the majority of our detainees come from local jails and State and 
Federal prisons, our employees are routinely exposed to some of the 
most dangerous criminals and gang members within the United States. ICE 
does little if anything to track these assaults or encourage our 
officers to file reports when they have been assaulted. Most assaults 
against ICE officers currently go unreported and are almost never 
prosecuted. AFGE is very concerned that ICE's plans to abandon vital 
security protocols currently in place in detention facilities, while 
intensifying efforts to arrest criminal aliens, will undoubtedly place 
ICE officers and contract guards at greater risk.
                        relocating ice employees
    ICE has stated that the proposed detention facilities are to be 
built in new locations solely for the purpose of ensuring that 
detainees can be closer to their families for family visitations while 
in custody. ICE has stated that its employees will be forced to move 
when the new facilities are completed. If ICE's proposals are 
implemented, ICE employees will be permanently uprooted from their 
families and communities in order to make visitation easier for ICE 
detainees who on average are in custody just 6 weeks--often times only 
1 to 2 weeks. ICE employees will be forced to take their children out 
of schools, give up their homes, leave behind aging parents and sick 
family members, and experience financial hardships in order to improve 
visitation for detainees who are in custody for 6 weeks or less.
                     detention enforcement officers
    The Immigration Enforcement Agent (IEA) position was created in 
2003 following the establishment of ICE. IEAs have the same immigration 
arrest authority as ICE Deportation Officers and ICE Special Agents. 
The primary purpose of the IEA position was to take over the ICE 
Criminal Alien Program which was previously performed by ICE Special 
Agents. However, ICE also assigned IEAs to perform detention functions 
and transportation duties, which resulted in a substantial increase of 
work for the IEAs. It was the equivalent of rolling two full-time 
positions into one. As a result, both the Criminal Alien Program and 
ICE detention functions have suffered. It is a failure that ICE 
headquarters has been reluctant to acknowledge.
    Prior to ICE, a legacy Immigration and Naturalization Service (INS) 
position called the Detention Enforcement Officer (DEO) existed. This 
position did not have immigration arrest authority but did perform all 
of the full-time detention and transportation duties for INS detention 
facilities and offices throughout the United States. When the DEO 
position existed, job responsibilities were clearly defined. INS had 
officers to perform law enforcement functions as well as officers to 
perform detention duties. It is a model that the U.S. Marshal's Service 
and many sheriffs' departments have utilized very successfully for many 
years. The Marshals are able to perform both their law enforcement and 
detention missions effectively because unlike ICE they have maintained 
a separate position that manages detention, performs transportation 
functions, and provides court security.
    It is our belief that ICE made a critical mistake when it ended the 
DEO program. The heavy work volume and complexity of the Criminal Alien 
Program and failures within the ICE detention system have identified a 
clear need for ICE to have both IEAs and DEOs. DEOs would greatly 
improve DRO's ability to perform its law enforcement and detention 
functions. Removing detention duties from the IEA position would 
drastically increase DRO's ability to arrest criminal aliens and 
process cases in an efficient and expeditious manner. With regard to 
detention, DEOs would provide ICE's National detention program with the 
increased physical presence and oversight that is currently lacking.
                 private contract detention facilities
    With regard to the conduct of contract employees working with ICE 
detainees, I must state very clearly that I have not personally 
witnessed misconduct by contract workers, nor do I have access to 
information gained from agency investigations into these matters. The 
only information that I can pass on to this committee is that which I 
have been given from ICE officers in the field.
    With that said, I have been told that some contract workers in 
certain facilities have allegedly engaged in consensual sexual 
misconduct with detainees and it has also been alleged that there have 
been instances in which contract guards have raped female detainees. It 
is also alleged that contractors are smuggling contraband into the 
detention facilities. In areas near the southern border of the United 
States where contract workers also assist with the transportation of 
detainees, it has been alleged that contract guards have been involved 
in, and arrested for, smuggling foreign nationals into the United 
States. If any of these allegations are true, it certainly begs the 
question, ``What is ICE doing to stop these problems?'' As one veteran 
ICE officer stated to me last week, during a conversation regarding 
contract guards smuggling contraband into detention facilities in his 
area, ``ICE managers are well aware of the problems in the contract 
facilities, but don't seem interested in doing anything about it.''
    While this statement may surprise many in the American public, it 
would not surprise ICE employees who are well aware of problems within 
ICE management and the unethical manner in which ICE internal 
investigations are conducted.
                      ice internal investigations
    No checks and balances currently exist within ICE. ICE investigates 
itself. Because ICE investigates itself there is no transparency and 
there is no reform or improvement. ICE managers have complete control 
over the investigative process. The end result has been that both 
ineffective supervisors and supervisors engaged in misconduct are not 
disciplined, retain their positions, and are regularly promoted. ICE 
employees who voice their concerns about general problems, formally 
report more serious matters for investigation, or participate in the 
Union are relentlessly retaliated against by agency managers who rely 
on the ICE internal investigative process as a tool for retaliation. 
The result has been a consistent decline in employee morale and 
widespread fear among employees to report wrongdoing. This contributes 
to the large-scale inefficiency that presently exists within the 
agency. It is our opinion that any attempts to reform the detention 
system will be unsuccessful without reforms that hold ICE managers 
accountable and protect employees from retaliation.
    On March 15, 2009, AFGE Local 3806 sent a letter to DHS Secretary 
Janet Napolitano informing her that problems existed within all ICE 
internal investigative processes, to include those conducted by the ICE 
Office of Professional Responsibility (OPR). Specifically, it was 
reported that no avenue currently exists for ICE employees to make 
whistleblower disclosures without fear of retaliation by the agency. On 
April 29, 2009, the Secretary's office responded and stated that the 
matter had been turned over to the DHS Office of Inspector General 
(OIG). Also in April 2009, the Union provided a copy of the letter to 
ICE Assistant Secretary John Morton. To date, the Union has never been 
contacted or received any communications from either Secretary 
Napolitano's office or Assistant Secretary Morton. The DHS Office of 
Inspector General has also dismissed the concerns raised by the Union 
as the Union has never heard from anyone in that office to even 
acknowledge that it had received the complaint and that it would 
investigate the allegations.
                             ice oversight
    Oversight must be removed from ICE, otherwise ICE managers and 
senior leadership will continue to have complete control over the 
investigative process and the outcome. The end result will be no 
different than it presently exists today as management protects 
ineffective supervisors, conceals misconduct and mismanagement, and 
retaliates against employees who adhere to ICE policies on reporting 
malfeasance.
    As part of its proposed detention reforms, ICE has designated 
oversight of the ICE detention centers to its internal investigative 
division, the ICE Office of Professional Responsibility (OPR). It has 
already been well-established that internal policing simply does not 
work. This was evidenced in 1998 during the Internal Revenue Service 
hearings before the Senate Finance Committee where horrific testimony 
disclosed taxpayer and employee abuses that went unchecked because of 
the failures of the internal Inspection Services. As a result, the IRS 
Restructuring and Reform Act of 1998 was enacted and an independent 
investigatory office, the Office of Inspector General for Tax 
Administration, was created to remove investigative authorities from 
the agency. What was not considered, however, was that many of the 
Inspection Services investigators were moved to the newly-created 
organization and it took many years for the perception of the 
transplanted Inspection Services to change. It is our opinion that any 
internal oversight will not be objective as long as the agency is able 
to manipulate the investigative process. Again, oversight, to include 
that of ICE detention facilities, must be removed from ICE.
                       detention service managers
    Another DHS/ICE proposal on detention reform will create 23 GS-14 
positions called Detention Service Managers (DSM). Each of the 23 DSMs 
hired will monitor and enforce detention standards at ICE-owned 
facilities and contract facilities. Currently, these duties are 
supposed to be performed by contract employees called COTRs (Contract 
Officer Technical representative). ICE has made clear that it plans to 
eventually replace all of the Contract COTRs with DSMs. The Union and 
managers in the field appear to be in agreement that the Contractor 
COTRs are not providing adequate oversight of detention facilities 
utilized by ICE. However, we do not agree with the DSM remedy as 
proposed by ICE. Because of problems with Contract COTRs, ICE already 
sends ICE employees to COTR training out of a necessity for better 
oversight. ``ICE Employee COTRs'' are already performing oversight 
duties in the field. However, since these Contractor COTRs are 
currently designated by ICE as having the official authority of 
oversight, ``ICE Employee COTRs'' are not as effective as they could 
be. The Union proposes that by giving the current ``ICE Employee 
COTRs'' (who consist of both managers and employees) the same authority 
and training as the proposed DSM position, ICE could eliminate and 
replace far more than 23 Contractor COTRs--and ICE could literally do 
it overnight at less expense. In fact, agency representatives 
acknowledged during the briefing that current ``ICE Employee COTRs'' 
would be providing on the job training to the newly hired GS-14 DSMs. 
We see the Union proposal as having the potential for far greater 
impact on detention reform in much less time.
                   ice officers not properly utilized
    ICE DRO currently has two law enforcement officer positions which 
are the ICE Immigration Enforcement Agent (IEA) and ICE Deportation 
Officer (DO) positions. Both positions have full immigration arrest 
authority and their combined officer numbers account for a substantial 
percentage of the small number of law enforcement officers Nation-wide 
who have immigration arrest authority. Both positions are very limited 
in number and both are in high demand throughout the United States, 
especially as it pertains to criminal aliens. However, starting under 
the previous administration, ICE has initiated practices and policies 
that have greatly reduced the ability of ICE officers to provide much-
needed law enforcement functions. Instead of providing adequate numbers 
of ICE support staff to perform clerical work and data entry, ICE has 
delegated these duties to ICE officers at the expense of their assigned 
law enforcement duties.
    In some areas such as the Texas Rio Grande Valley, hundreds of ICE 
officers are not being utilized to work the Criminal Alien Program in 
local jails and prisons. The majority of ICE DRO agents and officers 
throughout the United States are prohibited from making street arrests 
as ICE is more concerned about negative publicity than assisting State 
and Federal law enforcement agencies who attempt to reduce crime and 
gang activity in their areas. Likewise, ICE officers complain that when 
the danger levels of their duties are heightened, ICE does not allow 
officers to take needed equipment like shotguns because supervisors are 
more concerned about the possibility of negative publicity than the 
safety of their own officers.
                          manpower and morale
    With an existing workforce that is drastically understaffed and 
overworked, senior leadership continues to create massive new programs 
that will require hundreds if not thousands of new employees to 
successfully implement. However at ICE, manpower-intensive programs are 
simply implemented at the local and National level without any planning 
or consideration for the staffing and resources needed to accomplish 
them.
    ICE managers have already announced that ICE DRO is taking over the 
Law Enforcement Support Center (LESC), which will require DRO employees 
to man a 24-hour National call center to assist law enforcement 
officers from other agencies in the field. This added responsibility is 
only one of many that ICE plans to implement Nationally through a new 
program called Secure Communities. Secure Communities will require that 
100% of all U.S. Citizens and non-citizens booked into every jail in 
the United States be screened in ICE databases. We anticipate that this 
will create an unprecedented and large-scale increase in the number of 
requests for ICE assistance as well as an equally large workload 
increase to ICE employees with the rise of ICE arrests, transportation 
duties, and needs for detention space. We have heard no proposals from 
the agency regarding the large-scale hiring that will be needed to 
perform these new duties. ICE does not have the manpower, resources, or 
funding to support what it is already doing, yet ICE continues to 
implement many new large-scale programs and initiatives, and ignores 
the warnings and grave concerns expressed by union officials, 
employees, and its own managers.
    Over the years, agency surveys of employee morale have consistently 
shown morale among ICE employees to be among the lowest of all Federal 
employees, something which ICE leadership has failed to address. Morale 
will continue to decline as ICE implements new programs but fails to 
consider its employees and the already heavy workload they carry. Many 
managers have never performed the duties that our employees currently 
perform, nor do they have experience with the tools and practices now 
in use to perform those duties. A complete disconnect exists between 
agency managers, their employees, and what's happening in the field. 
Directives coming from ICE Field Offices (essentially District Offices) 
and ICE Headquarters appear to lack any input from the field, are often 
completely misguided and nonsensical, and create not only unnecessary 
work for ICE employees but also confusion and outrage.
    There is no uniformity or consistency throughout ICE as each Field 
Office creates its own fiefdom and makes its own rules. As just one 
example, pay practices are different in every ICE office across the 
country, and those practices change constantly. When the Union notifies 
the agency of legal violations regarding employee pay issues, we are 
ignored and forced to waste taxpayer dollars to litigate entitlements 
that are already granted by law.
    The negotiated agreement between the agency and the Union as well 
as Federal Statute is ignored and managers are not held accountable for 
their actions or inactions. The inaction by the agency to take care of 
its workforce demonstrates that it does not care about its most 
important resource. The agency's Office of Employee and Labor Relations 
lacks concern for consistent policies, productive human resources 
programs, effective labor-management relations, and fair and equitable 
treatment of employees. Rather than advise senior leadership and 
managers that laws, rules, regulations, and the negotiated agreement 
must be followed, it focuses its efforts toward supporting problematic 
managers who commit acts of misconduct, abuse their authority, and 
fabricate allegations and take unnecessary and excessive disciplinary 
actions against employees.
                      pay equity for dro employees
    In October of this year, DHS Secretary Janet Napolitano suddenly 
and without warning, announced that approximately 50,000 Customs and 
Border Protection (CBP) officers would be noncompetitively promoted 
from GS-11 to GS-12. The much smaller group of approximately 2,000 ICE 
IEAs were excluded in this upgrade although efforts have been underway 
through attempted legislation for no less than 2 years to raise their 
grades to GS-11. IEAs are assigned duties previously performed by GS-13 
Special Agents and attend an academy that is lengthier than that of 
many of the CBP officers recently promoted to GS-12. IEAs have no 
career ladder promotions even though they share the same job series 
with GS-12 ICE Deportation Officers. ICE may be the only State or 
Federal law enforcement agency in the Nation that does not provide a 
career ladder to its own officers and instead hires less qualified 
candidates from other agencies for higher-paying nonsupervisory 
positions.
    Although the ICE Detention and Removal Assistants (DRAs) are only 
at the GS-7 pay grade there are no existing career ladder positions 
within the agency to afford them any opportunity to improve their 
livelihood through advancement and opportunity to move to other 
positions. For years it has been rumored that ICE will finally 
acknowledge the work of these employees and promote them because of the 
continuing assignment of more complex duties, yet the agency never 
acts.
    The agency has actively gathered work statistics from ICE 
Deportation Officers (DOs) for several years. A recommendation for 
promotion to the GS-13 grade level from the previous ICE Director of 
DRO to Assistant Secretary John Morton accidentally became public 
several months ago, but with years of research and recommendations from 
senior-level ICE managers, no changes were made and as a consequence 
this group was also ignored during Secretary Napolitano's massive 
promotions.
    It is our opinion that DHS and ICE have failed for years to 
acknowledge the work of DRO employees and provide pay parity for its 
employees. To leave these highly deserving DRO employees out of this 
massive promotion demonstrates yet another failure by ICE, a failure 
that has taken morale to an all new low. ICE employees will now begin a 
mass exodus to higher-paying jobs in other agencies while at the same 
time qualified individuals who would otherwise apply for ICE entry-
level positions will take their applications to the agencies who afford 
them advancement opportunity.
                      outsourcing of employee work
    Contrary to the mandates established by President Obama to return 
Federal employee work to the Government, ICE recently awarded a new 
contract in the amount of $71.5 million to an outside contractor. This 
contract, which is for services for the period September 1, 2009 
through August 31, 2014, includes work that is currently performed by 
bargaining unit employees. The Union believes that the agency's goal is 
to eventually eliminate the Detention and Removal Assistant (DRA) 
positions in ICE and will accomplish this goal through a reduction in 
hiring and attrition of the existing employees while simultaneously 
increasing contractor personnel to perform the DRA work.
    In a continuing repudiation of the existing negotiated agreement 
between management and the Union, the Union was first notified of this 
contract on September 21, 2009 and only after the awarded contract 
execution date of September 11, 2009. During the briefing that was 
provided to the Union by ICE on September 21, 2009, officials attempted 
to convince us that this contract was not considered ``contracting 
out'' but rather ``contracting in,'' a newly-coined phrase by ICE 
management. The Union was also notified that provisions exist within 
the life of this contract to amend it to increase the scope and 
monetary value of the contract.
                               conclusion
    I hope that my testimony here today provides the Members of this 
subcommittee with a clear view of the status of the DRO program at ICE. 
Clearly, there are problems and great risks associated with the 
Detention Reform Plan that have not been adequately considered.
    Perhaps most troubling to the ICE Council is the fact that the 
Union, ICE employees, and managers in the field have been excluded from 
the development of the proposed detention reforms. While we always 
welcome new input, we are certain that no one possesses more knowledge 
regarding ICE detention than ICE employees. It is unthinkable that the 
Union and ICE employees have been excluded from this process. We 
certainly expected more from this administration. However, we remain 
optimistic and look forward to opportunities for participation in the 
future.
    We commend this committee's efforts to bring oversight to the 
activities of this troubled agency, and unconditionally commit our 
resources to this or any future inquiries made by this honorable body. 
Thank you for allowing me the opportunity to speak on behalf of our ICE 
employees.
    This concludes my testimony, and I welcome any questions that you 
may have.

    Ms. Sanchez. Thank you, Mr. Crane. Thank you for your 
testimony.
    I now recognize Mr. Kerwin to summarize his statement for 5 
minutes or less.

    STATEMENT OF DONALD M. KERWIN, JR., VICE PRESIDENT FOR 
              PROGRAMS, MIGRATION POLICY INSTITUTE

    Mr. Kerwin. Madam Chairwoman and distinguished Members of 
the subcommittee, I appreciate the opportunity to testify 
before you today.
    I will speak today on some of the challenges related to the 
design of a detention system that reflects ICE's civil 
detention authorities.
    Detention serves two primary purposes--first, to ensure 
that persons in removal proceedings attend all of their 
hearings and can be removed if they are ordered removed, and 
second, to protect the public if necessary.
    Consistent with these goals, the central aim of detention 
reform should be to ensure that persons in ICE custody are 
placed in the least restrictive settings, which will typically 
be the least costly, that are necessary to ensure their 
appearances at all legal proceedings and to protect others.
    Under a civil detention system, ICE should carefully 
screen, classify, and treat detainees as follows. First, ICE 
should continue to detain persons who represent a danger to 
others.
    Eleven percent of ICE detainees with criminal records have 
committed violent crimes. ICE will need secure facilities to 
detain this population and others that represent a threat. But 
most ICE detainees do not have criminal records, and many of 
those with criminal records committed relatively minor crimes.
    Second, ICE should ensure that certain immigrants not be 
placed in removal proceedings and thus not be subject to 
detention. This would include refugees, persons eligible for 
lawful permanent residence, and those with credible claims to 
U.S. citizenship.
    Third, ICE should release detainees who are not a danger or 
a flight risk, particularly those whose cases raise 
humanitarian concerns such as bona fide asylum seekers, torture 
survivors, the very elderly, pregnant and nursing women.
    Fourth, ICE should continue to expand and improve its 
alternative-to-detention programs. While not appropriate for 
everyone, these programs can offer a cost-effective and humane 
alternative to detention. My written statement details several 
ways in which existing programs can and should be strengthened.
    Fifth, ICE must expand its efforts to identify alternative 
housing options for civil detainees. It should also 
aggressively explore and adopt standards that reflect that--
civil detention authorities and the needs of those in its 
custody.
    ICE's National detention standards are broadly modeled on 
American Correctional Association standards for adult local 
detention facilities which apply to persons awaiting criminal 
trial or serving relatively short criminal sentences.
    Civil detention standards should ensure the separation of 
detainees based on a rigorous assessment of the risks that they 
present to others, prohibit the use of shackling, strip 
searches, handcuffing, solitary confinement and Tasers on non-
violent detainees, preclude transfers that would negatively 
affect a detainee's legal case or an attorney-client 
relationship, place detainees in facilities near legal counsel, 
allow contact visits with family members, and assure that those 
visits can go beyond the current 30-minute minimum, and provide 
for detainee access to outdoor recreation throughout the day 
and not just a minimum of 1 hour per day of exercise outside 
the cell.
    Finally, with respect to civil detention, ICE should be 
particularly vigilant in reviewing the custody of persons who 
have been confined for more than 6 months, particularly those 
ordered removed from the country. This would be consistent with 
the two U.S. Supreme Court decisions.
    In September 2009, my agency released a report that 
concluded that ICE's information systems and, in particular, 
its ENFORCE database, did not appear to track the kind of 
information that would allow the agency to comply with the law 
or to meet its own detention standards.
    The report's overarching recommendation was that ICE ensure 
that its information systems allow it to make informed 
decisions related to who it must detain and who it must 
consider for release, who should be placed in an alternative-
to-detention program, and whether it had adhered to its 
National standards in particular cases.
    ICE should also expand its oversight, direct control, and 
monitoring of its own facilities and programs so that it can 
successfully implement its detention reforms.
    Private prison corporations manage all but one of ICE's 
service processing centers and its largest contract facilities. 
Collectively, these facilities hold more than half of all ICE 
detainees.
    ICE also relies on private contractors to conduct most on-
site monitoring of its detention facilities, to annually assess 
compliance with detention standards at its facilities, and to 
manage two of its three alternative-to-detention programs.
    ICE deserves praise for its decision to revamp its 
detention system, for its candid assessments of the challenges 
the agency faces, for its reforms to date and its engagement of 
stakeholders to date.
    Counsel needs to be vigilant, however, in helping to ensure 
that this process continues. Thank you.
    [The statement of Mr. Kerwin follows:]
              Prepared Statement of Donald M. Kerwin, Jr.
                           December 10, 2009
    Madam Chairwoman and distinguished Members of the subcommittee, my 
name is Donald Kerwin and I am vice president for Programs at the 
Migration Policy Institute (MPI). MPI is an independent, non-partisan, 
non-profit think tank headquartered in Washington, DC, and dedicated to 
the analysis of the movement of people world-wide. I appreciate the 
opportunity to testify before you today on the U.S. immigration 
detention system.
    On August 6, 2009, Homeland Security Secretary Janet Napolitano and 
the Assistant Secretary of U.S. Immigration and Customs Enforcement 
(ICE), John Morton, announced plans to restructure the Nation's 
immigration detention system.\1\ On October 6, 2009, ICE released a 
report by Dr. Dora Schriro, the first director of ICE's Office of 
Detention Policy and Planning (ODPP), which has been charged with 
designing a detention system based on the agency's civil detention 
authorities.\2\ The report affirmed that ICE detention facilities:
---------------------------------------------------------------------------
    \1\ U.S. Immigration and Customs Enforcement, ``ICE 2009 
Immigration Detention Reforms'' (Fact Sheet, August 6, 2009), http://
www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.
    \2\ Ibid.
---------------------------------------------------------------------------
   have been ``built, and operate, as jails and prisons to 
        confine pre-trial and sentenced felons'';
   rely on ``correctional incarceration standards designed for 
        pre-trial felons and on correctional principles of care, 
        custody and control'';
   ``impose more restrictions and carry more costs than are 
        necessary to effectively manage the majority of the detained 
        population.''\3\
---------------------------------------------------------------------------
    \3\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations'' (Washington, DC: Immigration and Customs Enforcement, 
October 6, 2009), 2-3, http://www.ice.gov/doclib/
091005_ice_detention_report-final.pdf.
---------------------------------------------------------------------------
    As part of the new initiative, ICE intends to centralize management 
of its detention system, reduce its reliance on local jails and private 
prisons, and revamp the standards governing those in its custody. The 
Schriro report represented a milestone in agency candor. It also 
highlighted the challenges that ICE faces in transforming its detention 
system, including:
   the diversity of ICE detainees by country of origin, gender, 
        age, criminal history, immigration status, detention status, 
        time in custody, and claims to remain;
   the size of the system (nearly 380,000 detained in fiscal 
        year 2008) and its six-fold growth since 1994;
   the hundreds of facilities within ICE's system, the multiple 
        types of facilities, their geographic diversity, and the 
        misalignment between detention capacity and demand;
   ICE's extensive alternative-to-detention programs;
   the multiple enforcement programs that feed into the 
        detention system, many of which ICE does not oversee or 
        control;
   longstanding problems in its information systems; and
   the law enforcement culture of ICE detention staff and the 
        criminal standards that govern its facilities.\4\
---------------------------------------------------------------------------
    \4\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities? 
(Washington, DC: Migration Policy Institute, September 2009), 22-23, 
http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf; Dr. 
Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 5-13.
---------------------------------------------------------------------------
    Given the early stage of the transformation process, it remains an 
open question how a civil detention system will differ from the current 
system. An initial challenge may be the lack of an analogous civil 
detention population. Suitable standards for immigrant detainees may 
differ markedly, for example, from standards that are appropriate for 
persons detained for mental health or public health reasons. As a 
preliminary task, ODDP should analyze potentially analogous civil 
detention systems in the United States, study immigrant ``reception 
centers'' and alternative housing models from other nations, and work 
closely with non-governmental organizations (NGOs) in developing 
suitable detention standards.
    This testimony will focus on three issues. First, it will discuss 
the need for discretion in placing persons in removal proceedings and, 
thus, subjecting them to detention. It will outline which immigrants 
should be eligible for alternative-to-detention programs and which 
should be detained and under what conditions. Second, it will highlight 
deficiencies in ICE's information systems that must be remedied in 
order for detention reform to succeed. Third, it will describe the 
extent to which ICE relies on private corporations to manage its 
detention system, and the implications of privatization for ICE's 
detention reform initiative.
  i. civil detention: who should be released, who detained, and under 
                            what conditions?
    The Schriro report recognizes the need to create ``the requisite 
management tools and informational systems to detain and supervise 
aliens in a setting consistent with assessed risk.''\5\ Building on 
this proposition, the goal of detention reform should be to ensure that 
persons in ICE custody are placed in the least restrictive setting 
necessary to ensure their appearances at all legal proceedings and, if 
necessary, to protect the public. Under such a system, ICE would 
carefully screen each detainee, classify them, and treat them as 
follows:
---------------------------------------------------------------------------
    \5\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 3.
---------------------------------------------------------------------------
    First, ICE would continue to detain persons who represent a danger 
to others. ICE's detention system contains persons with violent 
criminal histories who pose a threat to others. As of September 1, 
2009, 11 percent of ICE detainees with criminal records had committed 
violent crimes.\6\ ICE will need secure facilities for this population. 
However, an MPI report found that 58 percent of persons in ICE custody 
on January 25, 2009 did not have criminal records and, of those with 
criminal records, the most serious convictions included traffic-related 
(13 percent) and immigration-related offenses (6 percent).\7\ According 
to the Schriro report, ICE detainees behave differently from criminally 
incarcerated populations. The majority are ``motivated by the desire 
for repatriation or relief, and exercise exceptional restraint''; 
``relatively few detainees file grievances, fights are infrequent, and 
assaults on staff are even rarer.''\8\ For these reasons, less 
restrictive means of detention should be available to most immigrants, 
even those with criminal records.\9\
---------------------------------------------------------------------------
    \6\ Ibid., 6.
    \7\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 
20.
    \8\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 21.
    \9\ It should also be noted that ICE detainees have served whatever 
criminal sentence they have received prior to coming into ICE custody.
---------------------------------------------------------------------------
    Second, ICE should ensure that certain immigrants not be placed in 
removal proceedings and, thus, not be subject to the detention regime. 
This list would include persons who are eligible for adjustment of 
status to lawful permanent residence, persons with credible claims to 
U.S. citizenship, and refugees.\10\ Overall, the Department of Homeland 
Security (DHS) should exercise discretion in placing persons in removal 
proceedings based on their immigration status, humanitarian and 
equitable factors, the severity of their offenses and likelihood of 
prevailing in immigration court.\11\ Like every successful law 
enforcement agency, ICE should assess ``how most effectively to use its 
resources'' and the ``meaningful differences in culpability and 
equities'' among those who are potentially subject to its 
authorities.\12\ Given the overwhelming demands on the detention system 
and immigration courts, persons who enjoy legal status, who will soon 
obtain status, or who otherwise are not likely to be removed should not 
be put into removal proceedings.
---------------------------------------------------------------------------
    \10\ In recent months, ICE has placed lawfully admitted refugees 
who have committed no crime into removal proceedings because they have 
not adjusted to permanent resident status after a year in the country.
    \11\ Doris Meissner and Donald Kerwin, DHS and Immigration: Taking 
Stock and Correcting Course (Washington, DC: Migration Policy 
Institute, February 2009), 25, http://www.migrationpolicy.org/pubs/
DHS_Feb09.pdf.
    \12\ Ibid.
---------------------------------------------------------------------------
    Third, ICE should release detainees who are not a danger or a 
flight risk, particularly those whose cases raise humanitarian 
concerns. In fiscal year 2008, 51,000 detainees were released either 
through bond (29,000), an order of recognizance (12,000), an order of 
supervision (10,000) or parole (650).\13\ ICE has committed to 
developing an assessment tool to guide its decisions related to 
release, eligibility for alternative-to-detention programs and 
placement within its detention facilities.\14\ This tool should allow 
it to release bona fide asylum seekers, torture survivors, persons with 
strong family and equitable ties in the United States (particularly 
lawful permanent residents), pregnant and nursing women, primary 
caregivers, the elderly, families, survivors of human trafficking, and 
stateless persons and other detainees who cannot be removed.
---------------------------------------------------------------------------
    \13\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 6.
    \14\ U.S. Department of Homeland Security, ``ICE Detention Reform: 
Principles and Next Steps'' (Fact Sheet, October 6, 2009), http://
www.dhs.gov/xlibrary/assets/press_ice_detention_reform_fact_sheet.pdf.
---------------------------------------------------------------------------
    Fourth, ICE should continue to expand and improve its alternative-
to-detention programs.\15\ Alternative-to-detention programs can offer 
a cost-effective, humane alternative to detention, but they do not suit 
every detainee. Persons who represent a danger or a flight risk, even 
under the conditions of an alternative-to-detention program, should not 
be eligible for these programs. Likewise, alternative-to-detention 
programs are not appropriate for persons who would otherwise be 
released on parole, bond, supervision, or their own recognizance.
---------------------------------------------------------------------------
    \15\ Congress appropriated $70 million for alternative-to-detention 
programs in fiscal year 2010. Committees on Appropriation, ``FY2010 
Conference Summary: Homeland Security Appropriations'' (October 7, 
2009), http://appropriations.house.gov/pdf/
Homeland_Security_FY10_Conference.pdf.
---------------------------------------------------------------------------
    As of September 1, 2009, ICE was supervising 19,160 people in its 
three alternative-to-detention programs.\16\ In July 2009, ICE reported 
to MPI that it does not collect ``complete and accurate information'' 
that allows it to assess the effectiveness or cost of these programs, 
and that ``its previously released reports [were] sometimes 
incorrect.''\17\ It nonetheless reported that 87 percent of the 
participants in its Intensive Supervision Appearance Program (ISAP), 96 
percent of those in its Enhanced Supervision Reporting (ESR) program 
and 93 percent of those in its Electronic Monitoring (EM) program 
appeared for their removal hearings.\18\ It estimated direct program 
costs, not including ICE staff time, to be $14.42 per day for ISAP, 
$8.52 per day for ESR and between 30 cents and $5 per day for EM.\19\ 
By contrast, hard detention costs can exceed $100 per day.\20\ In 
October 2009, the Houston Chronicle reported that earlier ICE reports 
claiming 99 percent appearance rates for persons participating in the 
ISAP program did not include program participants whom ICE could not 
locate (i.e. absconders).\21\
---------------------------------------------------------------------------
    \16\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 6.
    \17\ Letter from Dr. Dora Schriro, Special Advisor, Office of the 
Assistant Secretary, U.S. Immigration and Customs Enforcement, to 
Donald Kerwin, Vice President for Programs, Migration Policy Institute 
(received July 2, 2009).
    \18\ Ibid.
    \19\ Ibid.
    \20\ U.S. Department of Homeland Security, ``ICE Detention Reform: 
Principles and Next Steps'' (Fact Sheet, October 6, 2009).
    \21\ Susan Carroll, ``Flaws found in options for immigrant 
detention,'' Houston Chronicle, October 20, 2009.
---------------------------------------------------------------------------
    While ICE record-keeping and information systems must improve, 
alternative-to-detention programs cost far less than hard detention and 
can ensure high court appearance rates. For this reason, alternative-
to-detention programs should be expanded. They should also be 
strengthened as follows:
   The screening of program participants should be based on a 
        more reliable assessment of risk. Screening has been shown to 
        be crucial to the success of alternative-to-detention and 
        supervised-release programs.\22\ As stated, ICE has committed 
        to creating a risk assessment tool to determine who should 
        participate in its alternative-to-detention programs.\23\
---------------------------------------------------------------------------
    \22\ Megan Golden, Oren Root, and David Mizner, The Appearance 
Assistance Program: Attaining Compliance with Immigration Laws Through 
Community Supervision (New York: Vera Institute for Justice, 1998), 7-
9.
    \23\ U.S. Department of Homeland Security, ``ICE Detention Reform: 
Principles and Next Steps'' (Fact Sheet, October 6, 2009).
---------------------------------------------------------------------------
   The removal proceedings of persons in alternative-to-
        detention programs should be expedited. Rates of absconsion and 
        costs will necessarily increase the longer participants remain 
        in alternative-to-detention programs.\24\
---------------------------------------------------------------------------
    \24\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 21.
---------------------------------------------------------------------------
   Alternative-to-detention programs should assist participants 
        to secure legal counsel and otherwise to obtain accurate and 
        timely information about the removal process. These factors 
        have proven crucial to ensuring high court appearance 
        rates.\25\
---------------------------------------------------------------------------
    \25\ Oren Root, The Appearance Assistance Program: An Alternative 
to Detention for Noncitizens in US Immigration Removal Proceedings (New 
York: Vera Institute for Justice, 2000), 3-4; Megan Golden, Oren Root 
and David Mizner, The Appearance Assistance Program: Attaining 
Compliance with Immigration Laws Through Community Supervision, 10-13.
---------------------------------------------------------------------------
   Alternative-to-detention programs should be treated--
        particularly if they are strengthened in the ways set forth 
        above--as alternative forms of detention, and thus opened to 
        mandatory detainees. Mandatory detention laws broadly cover 
        significant numbers of persons who, with proper supervision, 
        would not be a flight risk. Given that 66 percent of ICE 
        detainees must be detained,\26\ the significant expansion of 
        alternative-to-detention programs--and the resulting cost 
        savings to the Government and benefit to the affected 
        individuals--will depend on whether alternatives to detention 
        are found to be soft detention or constructive custody.
---------------------------------------------------------------------------
    \26\ See, e.g., Yong v. INA, 208 F. 3d 1116, 1118 (9th Cir. 2000) 
(release to a halfway house held to be a form of civil custody).
---------------------------------------------------------------------------
    Fifth, ICE should expand its efforts to identify alternative 
housing options for detainees, including the use of ``converted hotels, 
nursing homes, and other residential facilities.''\27\ It should also 
aggressively explore and adopt standards that reflect its civil 
detention authorities and the needs of those in its custody. It should 
collaborate with a wide range of stakeholders, including NGOs, in 
identifying alternative housing and developing appropriate standards.
---------------------------------------------------------------------------
    \27\ U.S. Department of Homeland Security, ``ICE Detention Reform: 
Principles and Next Steps'' (Fact Sheet, October 6, 2009).
---------------------------------------------------------------------------
    In September 2000, the Immigration and Naturalization Service (INS) 
issued 36 National detention standards, covering security, the exercise 
of religion, medical care, visitation, telephone access, legal access, 
and transfers.\28\ In 2008, ICE announced plans to develop the 
performance outcomes that its National detention standards are intended 
to achieve.\29\ ICE will continue to phase in its performance-based 
standards--which include new standards on media interviews and tours, 
searches, sexual abuse, and staff training--throughout 2010.\30\
---------------------------------------------------------------------------
    \28\ DHS subsequently added two more standards, bringing the (then) 
total to 38.
    \29\ U.S. Immigration and Customs Enforcement, Operations Manual: 
ICE Performance Based National Detention Standards (PBNDS) (last 
modified October 7, 2009), http://www.ice.gov/partners/dro/PBNDS/
index.htm.
    \30\ U.S. Immigration and Customs Enforcement, ``Detention 
Management Program'' (last modified February 20, 2009), http://
www.ice.gov/partners/dro/dmp.htm.
---------------------------------------------------------------------------
    The National detention standards do not cover ICE detainees who are 
held in Bureau of Prisons (BOP) facilities. In addition, they do not 
apply in their entirety to the local jails covered by inter-
governmental service agreements (IGSAs).\31\ IGSA agreements allow 
localities to establish ``alternative'' practices that ``meet or exceed 
the intent'' of different sections of most of the standards. Moreover, 
even when the standards apply, compliance remains spotty. Recent 
reports by the DHS Office of Inspector General (OIG) and respected NGOs 
have found:
---------------------------------------------------------------------------
    \31\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 10.
---------------------------------------------------------------------------
   non-compliance with standards related to detainee transfers, 
        including with the requirement that detainees receive medical 
        examinations within 14 days of arriving at a facility.\32\
---------------------------------------------------------------------------
    \32\ U.S. Department of Homeland Security, Office of Inspector 
General, Immigration and Customs Enforcement's Tracking and Transfers 
of Detainees (Washington, DC: US Department of Homeland Security, 
Office of Inspector General, 2009), 6-9, 11, http://www.dhs.gov/xoig/
assets/mgmtrpts/OIG_09-41_Mar09.pdf.
---------------------------------------------------------------------------
   widespread violations of multiple standards based on a 
        review of previously confidential assessments by ICE, the 
        American Bar Association, and the United Nations High 
        Commissioner for Refugees.\33\
---------------------------------------------------------------------------
    \33\ Karen Tumlin, Linton Joaquin and Ranjana Natarajan, A Broken 
System: Confidential Reports Reveal Failures in U.S. Immigrant 
Detention Centers (Los Angeles: National Immigration Law Center, 2009), 
http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf.
---------------------------------------------------------------------------
   violations of the standards governing access to legal 
        materials, legal orientation presentations, and attorneys.\34\
---------------------------------------------------------------------------
    \34\ Amnesty International, ``Jailed Without Justice'' (Amnesty 
International, March 2009), 30-36, http://www.amnestyusa.org/immigrant-
rights/immigrant-detention-report/page.do?id=1641033; Human Rights 
First, ``U.S. Detention of Asylum Seekers: Seeking Protection, Finding 
Prison'' (New York, NY: Human Rights First, April 2009), 55-59, http://
www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf.
---------------------------------------------------------------------------
   exponential increases in detainee transfers in recent years, 
        and the deleterious impact of transfers on legal 
        representation.\35\
---------------------------------------------------------------------------
    \35\ Human Rights Watch, ``Locked Up Far Away'' (New York: Human 
Rights Watch, December 2, 2009), http://www.hrw.org/en/reports/2009/12/
02/locked-far-away; U.S. Department of Homeland Security, Office of 
Inspector General, ``Immigration and Customs Enforcement Policies and 
Procedures Related to Detainee Transfers'' (Washington, DC: U.S. 
Department of Homeland Security, Office of Inspector General, November 
2009), 2-4, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-
13_Nov09.pdf.
---------------------------------------------------------------------------
    The ICE standards are broadly modeled on American Correctional 
Association (ACA) standards for adult local detention facilities, which 
apply to persons who are awaiting criminal trial or serving relatively 
short criminal sentences. In many particulars, the ACA standards are 
not suitable to immigrant detainees. For example, the ACA standards 
allow for only 25 square feet of ``unencumbered space'' for inmates in 
multiple occupancy rooms and only 35 square feet of ``unencumbered 
space'' for those confined in excess of 10 hours per day.\36\ The ACA 
access to counsel standard stipulates only that counsel is ``ensured'' 
and that inmates ``will be assisted in making confidential contact with 
their attorneys,'' a standard altogether inadequate for civil detainees 
who are not guaranteed counsel at Government expense.\37\ In other 
ways, ACA standards provide for more generous treatment than many ICE 
detainees receive, requiring for example that facilities be 
``geographically accessible to . . . community agencies, and inmates' 
lawyers, families, and friends.''\38\
---------------------------------------------------------------------------
    \36\ Performance-Based Standards for Adult Local Detention 
Facilities, Fourth Edition (Lanham, MD: American Correctional 
Association, June 2004), 4.
    \37\ Ibid., 99.
    \38\ Standards for Adult Local Detention Facilities, Third Edition 
(Lanham, MD: American Correctional Association, 1991), 33.
---------------------------------------------------------------------------
    More to the point, ICE and ACA standards are not generally 
appropriate to civil detainees. While hardly an exhaustive list, civil 
detention standards should:
   ensure that ICE detainees can wear their own clothes, rather 
        than prison uniforms;
   provide for detainee access to outdoor recreation throughout 
        the day, and not just a minimum of 1 hour each day of exercise 
        ``outside the cell, and outdoors, when practicable'';
   allow detainees to keep personal possessions with them, 
        including family photographs;
   guarantee that legal orientation presentations are provided 
        to all detainees;
   ensure the separation of detainees without criminal 
        histories from those with criminal histories;
   prohibit the use of shackling, strip searches, handcuffing, 
        solitary confinement, and tasers on non-violent detainees;
   preclude transfers that would negatively affect a detainee's 
        legal case or an attorney/client relationship;
   place detainees in facilities near legal counsel and, for 
        persons with special medical or other needs, near appropriate 
        care; and
   allow contact visits with family members and ensure that 
        visits are not limited to the current 30-minute minimum.\39\
---------------------------------------------------------------------------
    \39\ U.S. Immigration and Customs Enforcement, Operations Manual: 
ICE Performance Based National Detention Standards (PBNDS), PBNDS 5, 
13, 18, 29, 32, 37 and 41.
---------------------------------------------------------------------------
    Sixth, ICE should be particularly vigilant in reviewing the custody 
of persons who have been confined for more than 6 months, particularly 
those who have been ordered removed from the country. According to the 
Schriro report, less than 1 percent of all ICE detainees are detained 
for 1 year or more.\40\ However, it does not follow that ICE does not 
have a significant number of long-term detainees in its custody. MPI 
found that 4,154 of those in ICE custody on January 25, 2009 had 
already been detained for more than 6 months as of that date.\41\ Of 
these, 992 had been detained for more than 6 months following receipt 
of a removal order.\42\ The latter is a particularly significant figure 
since the Supreme Court has held that detainees must be released within 
6 months of a removal order unless the Government can show that there 
is ``significant likelihood of removal in the reasonably foreseeable 
future.''\43\
---------------------------------------------------------------------------
    \40\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 6.
    \41\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 
19.
    \42\ Ibid., 17.
    \43\ Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
---------------------------------------------------------------------------
          ii. the need to strengthen ice's information systems
    In September 2009, MPI released a report on the immigration 
detention system, titled Immigrant Detention: Can ICE Meet Its Legal 
Imperatives and Case Management Responsibilities?\44\ The report 
examines whether ICE's information systems allow it to determine which 
detainees:
---------------------------------------------------------------------------
    \44\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities? 
(Washington, DC: Migration Policy Institute, September 2009), http://
www.migrationpolicy.org/pubs/detentionreportSept1009.pdf.
---------------------------------------------------------------------------
   fall within ``mandatory'' detention categories, meet the 
        narrow exceptions for release under these laws or ultimately 
        will become eligible for release;
   have a viable claim to U.S. citizenship;
   have special medical conditions, mental illness, or 
        disability, or other humanitarian issues that necessitate 
        special care;
   have been treated in compliance with the National detention 
        standards;
   are eligible for the custody review procedures available to 
        persons who have been ordered removed, but who cannot be 
        removed within 90 days;
   constitute a risk to abscond (if released) or a threat to 
        others, whether within the detention setting or outside of it.
    Over the years, Government and human-rights organization reports 
have harshly criticized ICE's detention system for its failure to 
adhere to legal standards related to custody and release, and its 
failure to abide by its National detention standards. The MPI report 
raised the issue of whether ICE could comply with the law and adhere to 
its standards. Underscoring the need for reform, ICE disclosed on 
August 17, 2009 that 10 persons whose deaths had not previously been 
reported had died in its custody between 2004 and 2007.\45\
---------------------------------------------------------------------------
    \45\ U.S. Immigration and Customs Enforcement, ``ICE identification 
of previously un-tracked detainee deaths highlight importance of 
detention reform'' (August 17, 2009), http://www.ice.gov/pi/nr/0908/
090817washington.htm.
---------------------------------------------------------------------------
    MPI's report detailed the legally significant information that ICE 
does not appear to track. It also stressed the need for timely, 
accurate, and complete data entry into a consolidated database. As 
DHS's Office of Inspector General has warned, absent timely data entry, 
``family members and legal representatives could be misinformed of the 
whereabouts of detainees'' and ``there is a potential risk of 
improperly accounting for dangerous detainees.''\46\
---------------------------------------------------------------------------
    \46\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 10.
---------------------------------------------------------------------------
    The Schriro report recommends that ICE develop and implement 
standards and procedures ``that specifically reflect the legal 
requirements of the detained population.''\47\ The report also 
identifies other severe problems in ICE's information systems. It 
concludes that:
---------------------------------------------------------------------------
    \47\ Ibid., 18.
---------------------------------------------------------------------------
   the ``reliability, timeliness, distribution, and storage'' 
        of detention information, including detainee complaints, ``are 
        not uniform and can hinder oversight'';
   ICE does not produce the kind of reports that ``[c]omparable 
        detention systems routinely rely'' upon, including ``a daily 
        count sheet of all detainees in custody by facility, a roster 
        of the population assigned to alternative-to-detention 
        supervision, a current list of all detention facilities with 
        information about their operating and emergency capacities, the 
        number of beds that are vacant and off-line for repair and per-
        diem pricing'';
   the majority of computer entry screens are located at 
        ``centralized sites such as major facilities, field offices, 
        and sub offices, and not at the places of detention, 
        particularly IGSA locations'' and, thus, ``the recording of the 
        book-ins and book-outs frequently occurs after the actual 
        events'';
   ICE's information systems do not allow the agency to make 
        population ``forecasts'' for the purposes of planning or 
        detention policymaking;
   deportation officers, the primary ICE contact to detainees, 
        do not consistently document their meetings with detainees; and
   detainees are not always assigned new deportation officers 
        when transferred.\48\
---------------------------------------------------------------------------
    \48\ Ibid., 14, 16-18, 22.
---------------------------------------------------------------------------
    The health care provided to immigrant detainees has been a 
recurrent concern of Congressional oversight committees and human 
rights groups. The Schriro report recommends that ICE conduct 
``preliminary medical and mental health screening,'' develop a system 
for ``the medical and mental health classification for detainees'' and 
routinely assess those ``who remain detained or who exhibit signs of 
distress.''\49\ It reported that the agency:
---------------------------------------------------------------------------
    \49\ Ibid., 25-26.
---------------------------------------------------------------------------
   uses segregation cells to detain people with specialized 
        medical needs, mentally ill persons, and persons on suicide 
        watch;
   provides only a brief mental health intake assessment that 
        ``does not lend itself to early identification and 
        intervention'';
   has not developed a ``mental health classification system'';
   lacks a policy related to ``the maintenance, retention, and 
        centralized storage of medical records'' and does not move 
        medical files when detainees are transferred; and
   assigns immigrants to detention facilities prior to medical 
        screening, and places them without reference to the proximity 
        of necessary services or in appropriate facilities.\50\
---------------------------------------------------------------------------
    \50\ Ibid.
---------------------------------------------------------------------------
    MPI's report on ICE's detention information systems includes a 
series of detailed recommendations, which are incorporated by reference 
in this testimony and can be found at http://www.migrationpolicy.org/
pubs/detentionreportSept1009.pdf. Many of these recommendations concern 
ICE's principal database, known as ENFORCE. The report's overarching 
recommendation (repeated here) is that: ``ICE initiate a thorough 
inventory and review of its information systems, including ENFORCE, to 
ensure that they allow for informed decisions related to the substance 
and timing of:
   who ICE must detain and who it must consider for release, 
        with a particular focus on when ``mandatory'' detainees become 
        eligible for release;
   which detainees must be allowed to participate in ICE's . . 
        . post-removal order, custody-review processes;\51\
---------------------------------------------------------------------------
    \51\ ICE administers a custody review process for persons who have 
been ordered removed. It formerly administered a parallel process for 
``Mariel'' Cubans who had been ordered removed.
---------------------------------------------------------------------------
   who should be placed in ICE's alternative-to-detention 
        programs; and
   ICE's adherence to its National detention standards.''\52\
---------------------------------------------------------------------------
    \52\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 
25.
---------------------------------------------------------------------------
                  iii. the challenge of privatization
    The Schriro report recommends that ICE ``create capacity within the 
organization to assess and improve detention operations and activities 
without the assistance of the private sector.''\53\ MPI found that 
private corporations played an immense role in the management of the 
immigrant detention system, operating not just their own prisons under 
contract with ICE, but also administering the largest county jails with 
which ICE contracts.\54\ According to the Schriro report, ICE holds 
roughly 50 percent of its detained population in 21 facilities.\55\ As 
Exhibit 1 demonstrates, private corporations manage all but one of 
ICE's own Service Processing Centers (SPCs) and its largest contract 
facilities: the one exception is managed by a county, not ICE. The 
report also indicates that the agency relies on private contractors to:
---------------------------------------------------------------------------
    \53\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 19.
    \54\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities?, 
15.
    \55\ Dr. Dora Schriro, ``Immigration and Detention Overview and 
Recommendations,'' 10.
---------------------------------------------------------------------------
   conduct most of the ``on-site monitoring'' of its detention 
        facilities;
   annually assess compliance with detention standards at the 
        facilities ICE uses; and
   manage two of its three alternative-to-detention 
        programs.\56\
---------------------------------------------------------------------------
    \56\ Ibid., 14, 20.
---------------------------------------------------------------------------
    In addition, ICE field office directors and staff are not required 
to ``routinely tour'' detention facilities within their regions.\57\ In 
August 2009, ICE announced plans to hire 23 Federal employees to 
provide oversight (on-site) at 23 facilities, which hold roughly 40 
percent of its detainees.\58\
---------------------------------------------------------------------------
    \57\ Ibid., 15.
    \58\ U.S. Immigration and Customs Enforcement, ``ICE 2009 
Immigration Detention Reforms'' (Fact Sheet, August 6, 2009).
---------------------------------------------------------------------------
    A comparative review of the experience of several nations that use 
private prisons to detain immigrants argues for close Government 
oversight. On the one hand, private prisons have a ``built-in [profit] 
motive to provide adequate services.''\59\ If managed properly, private 
contractors can also provide a degree of flexibility that benefits the 
Government. However, poor accountability can result from: (1) Overly 
close ties between private prisons and Government decisionmakers; (2) 
lack of competition; (3) lack of oversight by civil society; and (4) 
the inordinate influence of private companies that seek to expand 
detention systems and weaken their regulation.\60\
---------------------------------------------------------------------------
    \59\ Michael Flynn and Cecelia Cannon, ``The Privatization of 
Immigration Detention: Towards a Global View (Geneva, Switzerland: 
Global Detention Project, September 2009), 16, http://
www.globaldetentionproject.org/fileadmin/docs/
GDP_PrivatizationPaper_Final5.pdf.
    \60\ Ibid., 16-17.
---------------------------------------------------------------------------
    The large-scale privatization of the ICE detention system 
complicates the reform initiative. ICE should adopt the Schriro 
report's modest recommendation that it be able to assess and improve 
its detention system without outside assistance. ICE's broader goal 
should be to expand its oversight, direct control, and monitoring of 
its own facilities and programs so that it can successfully implement 
its civil detention reforms. While a good preliminary step, the reforms 
announced by ICE to date--including the creation of ODPP and hiring 23 
ICE employees to oversee certain facilities--will not ensure adequate 
oversight of ICE contractors.
                             iv. conclusion
    ICE deserves praise for its decision to bring its detention system 
into line with its civil detention authorities, for its candid 
assessment of its detention system, for the creation of ODDP and for 
its other reforms. As the detention transformation process moves ahead, 
ICE should:
   Analyze potentially analogous civil detention systems in the 
        United States, study immigrant ``reception centers'' and 
        alternative housing models in other nations and work closely 
        with NGOs in developing suitable civil detention standards.
   Ensure that persons in its custody are placed in the least 
        restrictive settings necessary to ensure their appearances at 
        legal proceedings and to protect the public.
   Detain persons who pose a danger to others.
   Exercise discretion in placing persons in removal 
        proceedings based on their immigration status, humanitarian and 
        equitable factors, the severity of their offenses, and their 
        likelihood of prevailing in immigration court.
   Release detainees who are not a danger or a flight risk, 
        particularly persons whose cases raise humanitarian concerns.
   Expand and strengthen its alternative-to-detention programs 
        by: Screening program participants based on a more reliable 
        assessment of risk; working to expedite the removal proceedings 
        of persons in alternative-to-detention programs; assisting 
        program participants to secure legal counsel and otherwise to 
        obtain accurate and timely information about the removal 
        process; and treating alternative-to-detention programs as 
        alternative forms of detention, and thus opening them to 
        mandatory detainees.
   Expand its efforts to identify alternative housing options 
        for detainees, including the use of ``converted hotels, nursing 
        homes, and other residential facilities.''
   Adopt standards that reflect its civil detention authorities 
        and the needs of those in its custody.
   Systematically review the custody of persons who have been 
        confined for more than 6 months, particularly those who have 
        been ordered removed from the country.
   Initiate a thorough inventory and review of its information 
        systems, including ENFORCE, to ensure that they allow for 
        informed decisions related to the substance and timing of: Who 
        ICE must detain and who it must consider for release, with a 
        particular focus on when ``mandatory'' detainees become 
        eligible for release; which detainees must be allowed to 
        participate in ICE's post-removal order, custody-review 
        process; who should be placed in ICE's alternative-to-detention 
        programs; and ICE's adherence to its National detention 
        standards.
   Expand its oversight, direct control and monitoring of its 
        own facilities and programs so that it can successfully 
        implement its civil detention reforms.

   EXHIBIT 1.--SELECTED 22 DETENTION FACILITIES THAT HOLD MORE THAN 50
          PERCENT OF THE DETAINED POPULATION, FISCAL YEAR 2009
------------------------------------------------------------------------
                                         State        Private Contractor
------------------------------------------------------------------------
Service Processing Centers:
    Batavia SPC.................  Buffalo, NY.......  AHTNA Technical
                                                       Services Inc
                                                       (ATSI)
    El Centro SPC...............  El Centro, CA.....  ATSI
    Florence SPC................  Florence, AZ......  ATSI
    Krome SPC...................  Miami, FL.........  ATSI
    Port Isabel SPC.............  Los Fresnos, TX...  ATSI
    Varick Street SPC...........  New York, NY......  ATSI
    El Paso SPC.................  El Paso, TX.......  Doyon Akal Joint
                                                       Venture Detention
                                                       Center Services
    Aguadilla SPC...............  Aguadilla, PR.....  MVM, Inc
Contract Detention Facilities:
    Aurora ICE Processing Center  Aurora, CO........  GEO
    Broward Transitional Center.  Pompano Beach, FL.  GEO
    Northwest Detention Center..  Tacoma, WA........  GEO
    Pearsall....................  Pearsall, TX......  GEO
    Elizabeth Detention Center..  Elizabeth, NJ.....  CCA
    Houston Contract Detention    Houston, TX.......  CCA
     Facility.
    Otay Detention Facility.....  San Diego, CA.....  CCA
County Jail Facilities with
 IGSAs:
    Eloy Federal Contract         Eloy, AZ..........  CCA
     Facility.
    Laredo Processing Center....  Laredo, TX........  CCA
    Stewart Detention Center....  Lumpkin,GA........  CCA
    Otero County Processing       Chaparral, NM.....  MTC
     Center.
    Willacy County Detention      Raymondville, TX..  MTC
     Center.
    Jena/LaSalle Detention        Jena, LA..........  GEO
     Facility.
    Mira Loma Detention Center..  Lancaster, CA.....  N/A; Los Angeles
                                                       County Sheriff's
                                                       Department
------------------------------------------------------------------------
Sources: Dora Schriro, Immigration and Detention Overview and
  Recommendations (Washington, DC: Department of Homeland Security,
  October 6, 2009); website information of detention facilities and
  private contractors.

    Ms. Sanchez. Thank you, Mr. Kerwin.
    Now we will hear testimony from Ms. Nystrom. If you would 
please summarize your testimony in 5 minutes or less.

 STATEMENT OF BRITTNEY NYSTROM, SENIOR LEGAL ADVISOR, NATIONAL 
                       IMMIGRATION FORUM

    Ms. Nystrom. Good morning, Madam Chairwoman and 
distinguished Members of the subcommittee. Thank you for the 
invitation to speak about our Nation's immigration detention 
system.
    I currently serve as the National Immigration Forum's 
senior legal advisor. Working with leadership from States, 
labor, business, and immigrant communities, the forum's mission 
is to advocate for the value of immigrants and immigration to 
the Nation.
    Prior to joining the forum, I was legal director of a 
nonprofit organization providing legal services to those in 
immigration detention in county jails across Virginia.
    Although there are many concerns within immigration 
detention, my remarks this morning and my longer written 
testimony focus on two questions. Is it necessary for ICE to 
spend our tax dollars to detain so many individuals? For those 
persons who must be detained for security reasons, are 
detention conditions appropriate, efficient, and safe?
    To the first question, ICE detains many individuals who 
pose no flight risk or danger to the community and thus should 
be considered for release or an alternative-to-detention 
program.
    To the second question, the conditions of confinement for 
the hundreds of thousands of detained individuals each year are 
inappropriate, inefficient, and unsafe. Despite the civil basis 
of immigration detention, ICE houses its detainees in jails 
replete with barbed wire, prison uniforms, armed guards, and 
shackles.
    DHS leadership recently announced much-needed detention 
reform. Two steps must be taken to achieve these reforms. 
First, ICE must improve how it determines when detention is 
necessary and when a detainee merits release or enrollment in 
an alternative-to-detention program.
    Second, ICE must transition to a detention system that is 
neither unsafe nor degrading for detainees. Improved detention 
management begins with two critical reforms--an examination of 
whom ICE is detaining and why, in tandem with expanded and 
improved alternative-to-detention programs.
    Today ICE detains more than 33,000 individuals a night, 
including elderly persons, torture survivors, parents of U.S. 
citizen children, and those with chronic health conditions. 
Despite this diversity, ICE has a one-size-fits-all model of 
detention.
    Each decision to detain should be informed by an assessment 
of individual circumstances that is repeated periodically. 
Otherwise detention becomes far too automatic and a wasteful 
use of Government resources. Without routine detention 
assessment, U.S. citizens continue to be swept into immigration 
detention.
    There are fiscally responsible and reliable alternatives. 
ICE currently operates three alternative-to-detention programs 
that rely on heavy supervision through GPS, radio, and 
telephonic monitoring. The most expensive of these programs 
costs $14 per day, while a day of detention at some facilities 
exceeds $100.
    Alternatives to detention can be improved. Currently 
programs operate as alternative forms of custody. Without 
standardized assessments, enrollment is haphazard. Further, 
there are no alternative-to-detention programs incorporating 
community-based services which can help ensure compliance with 
immigration proceedings.
    Congress has repeatedly ordered ICE to develop National 
alternatives to detention and recently appropriated over $69 
million to these programs. Going forward, ICE must improve 
alternative-to-detention enrollment procedures and expand 
programs to include access to community services.
    More robust alternative-to-detention programs will lead to 
more manageable detention levels and a better use of limited 
security resources.
    In the second step, ICE must overhaul conditions of 
confinement to reflect the civil, non-punitive nature of 
immigration detention, shifting its culture from a correctional 
mentality to one more appropriate to the often vulnerable 
populations in its custody.
    Conditions in detention facilities used by ICE continue to 
be fundamentally inappropriate. Many facilities in use today 
are not physically capable of complying with ICE's own 
detention standards.
    A DHS inspector general report recently noted the use of 
remote facilities and the overuse of arbitrary transfers denies 
detainees the basic right to a fair defense and wastes Federal 
resources.
    As noted, medical care remains a critical concern for 
immigration detainees and announced reforms come too late for 
many. DHS should prioritize the medically and mentally ill for 
release or enrollment in an alternative to detention.
    Immediate steps can and should be taken. ICE must follow 
these initial steps by revising their standards of detention to 
comport with the civil nature of immigration detention. Because 
standards are not codified in statute or regulations, ICE must 
be diligent in their enforcement.
    To conclude, ICE has failed to effectively manage its 
massive immigration detention system. The current system is one 
in crisis. The sweeping reforms recently announced are 
promising but are not fully developed.
    ICE should begin screening all detainees for release or 
alternative-to-detention programs.
    Next, ICE must overhaul standards of confinement so 
conditions are appropriately--are appropriate and are 
vigorously enforced.
    Finally, as long as our immigration laws are out of step 
with the modern 21st Century realities, the task of managing 
immigration detention will be much more complicated and occur 
on a much greater scale than is necessary.
    Until we have comprehensive immigration reform, Congress 
should ensure that DHS transitions to a detention system that 
is right-sized, safe, humane, and efficient. Thank you.
    [The statement of Ms. Nystrom follows:]
                 Prepared Statement of Brittney Nystrom
                           December 10, 2009
    Thank you for the invitation to speak about the immigration 
detention system. I have been advocating for improving detention laws, 
policies, and practices for a number of years. I currently serve as the 
National Immigration Forum's Senior Legal Advisor. Working with 
leadership from faith, labor, business, and immigrant communities, the 
Forum's mission is to advocate for the value of immigrants and 
immigration to the Nation. In my prior capacity, I was Legal Director 
for a non-profit organization that provides legal services to 
individuals in immigration detention across Virginia.
                              introduction
    The current immigration detention system has been hindered by poor 
management and deficiencies in oversight, problems that have been 
exacerbated by rapid increases in the number of individuals detained. 
Recently, the Department of Homeland Security has acknowledged that its 
detention system is disjointed, inappropriately reliant on the criminal 
incarceration system, and lacking in direct Federal oversight. Non-
governmental organizations have described immigration detention as 
mismanaged, inhumane, and grossly lacking basic standards of due 
process to determine whether such extreme restrictions on a person's 
liberty are necessary and justified.
    Although there are many issues within immigration detention that 
should be examined, I will focus my remarks on two concerns. First, 
Immigration and Customs Enforcement (``ICE'') does not consistently 
know whom it detains or why; many detainees pose no flight risk or 
danger to the community and are potentially eligible for release or 
enrollment in an alternative form of supervision. Next, the conditions 
of confinement for the hundreds of thousands of individuals who are 
detained by ICE each year are inappropriate, inefficient, and unsafe. 
Detention facilities are a patchwork of Federal facilities, privately 
owned facilities, and jails. Oversight is insufficient and ICE's 
jailors violate the minimum standards of confinement frequently and 
with impunity. Despite the civil basis of immigration detention, ICE 
houses its detainees in jails replete with barbed wired, prison 
uniforms, armed guards, and shackles.
    Against this backdrop, the recent announcements of reforms to the 
immigration detention system by the Department of Homeland Security 
(``DHS'') and ICE are welcome. Concerned non-governmental organizations 
(``NGOs'') appreciate the opportunity to participate in creating and 
implementing needed reforms, yet challenges persist.
    Two sequential steps must be taken to achieve the reforms 
envisioned by the agency. First, ICE must reform protocols regarding 
who it is detaining and whether detention is necessary. Individuals 
should be automatically and consistently screened for release on 
recognizance, bond, parole, participation in alternatives to detention 
programs, or risk-appropriate housing assignments. Second, DHS, under 
the oversight of Congress, must design, manage, and rigorously monitor 
a truly civil detention system that can satisfy its interests while 
preserving the dignity and safety of those it detains.
                            state of affairs
    The current disarray of the immigration detention system has been 
well-chronicled in numerous media stories, reports, and Congressional 
hearings. As the system has rapidly expanded--ICE detains more than six 
times the number of people it detained just a decade ago--DHS has 
failed to meet its management challenges, with sometimes fatal 
consequences. Over 100 individuals have died in immigration detention 
since 2003.\1\ A Washington Post investigative series in 2008 found 
that substandard medical care may have contributed to at least 30 
deaths in immigration custody.\2\
---------------------------------------------------------------------------
    \1\ Cam Simpson, More Immigration Detainee Deaths Disclosed, WALL 
STREET JOURNAL, Aug. 18, 2009, available at http://online.wsj.com/
article/SB125055691948838827.html.
    \2\ Dana Priest and Amy Goldstein, Careless Detention, WASHINGTON 
POST, May 11-14, 2008, available at http://www.washingtonpost.com/wp-
srv/nation/specials/immigration/cwc_d1p1.html.
---------------------------------------------------------------------------
    Conditions of detention in ICE custody have been a source of 
controversy and dismay for years. Consistent complaints describe 
insufficient medical care, malfunctioning telephones, frequent 
transfers, disruptions in access to legal services, and severely 
limited visitation. A groundswell of reports, produced both by the 
Government Accountability Office, the DHS Office of Inspector General 
and DHS itself, as well as NGOs, demonstrates in great detail that the 
immigration detention system is in crisis.
    Although ICE's assessments of those in their custody are not well 
developed or consistently executed, there are some statistical clues 
about the current composition of the detained population.\3\ According 
to ICE statistics, 91% of those in immigration detention on January 25, 
2009 were men. On that same day, 58% of detainees did not have criminal 
convictions. Approximately 40 families were in family immigration 
detention centers on October 6, 2009. Roughly 1,400 asylum seekers with 
no criminal convictions are detained daily.
---------------------------------------------------------------------------
    \3\ These statistics were compiled from the following sources: Dr. 
Dora Schriro, Immigration Detention Overview and Recommendations, 
Department of Homeland Security, Immigration and Customs Enforcement, 
Oct. 6, 2009, available at http://www.ice.gov/doclib/
091005_ice_detention_report-final.pdf and Donald Kerwin and Serena Yi-
Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and 
Case Management Responsibilities?, Sept. 2009, Migration Policy 
Institute, available at http://www.migrationpolicy.org/pubs/
detentionreportSept1009.pdf.
---------------------------------------------------------------------------
    The Secretary of Homeland Security and the Assistant Secretary of 
ICE pledged in two recent public announcements to overhaul the current 
detention system. The initial announcement on August 6, 2009 was 
followed by a second, 2 months later, on October 6. The latter was 
coupled with the release of a report by Dr. Dora Schriro, most recently 
Director of the ICE Office of Detention Policy and Planning, titled 
``Immigration Detention Overview and Recommendations.'' Relevant 
components of the announced reforms include: Formal engagement with 
local and National stakeholders, development of risk assessment and 
custody classification mechanisms, implementation plans for National 
alternatives to detention, revision of detention standards to create 
consistent and appropriate conditions, and Federal oversight of 
detention facilities. ICE describes the time line of these reforms as 
stretching over 3 to 5 years.\4\
---------------------------------------------------------------------------
    \4\ Immigration and Customs Enforcement Assistant Secretary John 
Morton Holds Conference Call to Announce Major Reforms Planned for the 
Immigration Detention System, CQ Newsmaker Transcripts, Federal Agency, 
Aug. 6, 2009, available at http://homeland.cq.com/hs/
display.do?docid=3189020.
---------------------------------------------------------------------------
                        collaboration with ngos
    While ICE has begun strengthening collaborative relationships with 
NGOs to effect detention reforms, significant challenges remain. Local 
and National NGOs have organized themselves into two ``advisory 
groups'' or ``working groups.'' These groups are broadly arranged into 
general detention issues \5\ and detention-related health care issues. 
Initial meetings between these groups and ICE have occurred and future 
meetings are scheduled. The collaborative potential inherent in these 
working groups is rich, but has not been fully reached. ICE's 
meaningful engagement with NGO groups early in the planning process is 
critical to foster substantive discourse and help shape successful 
reforms.
---------------------------------------------------------------------------
    \5\ The general detention group is further subdivided into groups 
focused on specific issues such as religious services and risk 
assessment tools.
---------------------------------------------------------------------------
    Perhaps the most basic challenge in forging deep and meaningful NGO 
participation in the detention reform process is the delay in 
implementation of the announced reforms. NGOs that work with detained 
immigrants across the country report that they have yet to experience 
any significant shift in detention management on the ground. The single 
documented change is the transformation of the troubled T. Don Hutto 
facility in Texas from a family detention facility to a women's 
detention facility. The lack of tangible changes in detention 
operations does not reflect the ambitions of the announcements, 
therefore creating a disincentive for NGOs with limited resources and 
capacity to engage in a process that has thus far produced minimal 
results.
    The untimely departure from ICE of key detention reform personnel 
has presented an additional challenge. Two high-ranking officials 
departed the Office of Detention Policy and Planning shortly after the 
office was created. Dr. Dora Schriro conducted scores of meetings with 
NGOs, toured dozens of facilities, and drafted an evaluation of the 
immigration detention system before her departure from DHS in 
September. Her report conveyed many of the concerns and recommendations 
shared with her by NGOs. To date, we have not seen evidence that ICE 
intends to implement all of the recommendations Dr. Schriro made in her 
report. Next, a permanent replacement for Dr. Schriro has not been 
named. Additionally, a second member of the Office of Detention Policy 
and Planning had just begun to delve into detainee health care issues 
when she departed only a few months after her arrival.\6\
---------------------------------------------------------------------------
    \6\ Andrew Becker, Second immigration official leaves new Federal 
office, Center for Investigative Reporting, Oct. 23, 2009, available at 
http://www.centerforinvestigativereporting.org/blogpost/
20091023secondimmigrationofficialleavesnewfederaloffice.
---------------------------------------------------------------------------
    The lack of formal collaboration between ICE field offices and 
local NGOs presents an additional challenge. Under the current working 
group structure, the ability of organizations with first-hand 
experience and technical expertise located outside of the District 
Columbia to fully participate in the reform process is limited.
                 assessment of the detained population
    ICE should base its reforms on the basic premise that detention is 
not the only method to achieve security and compliance objectives. 
Currently, ICE detains more than 33,000 individuals each night.\7\ This 
number includes men, women, and children. It includes detainees who are 
elderly, who have chronic health conditions, and who are pregnant or 
nursing. It includes parents of U.S. citizen children. It includes 
individuals who crossed the desert a month ago and individuals who have 
lived lawfully in the United States for decades. It includes a small 
number of individuals who committed crimes and completed their 
sentences, and a large majority of individuals who have not committed 
any crime. Despite this diversity, ICE defaults to a one-size-fits-all 
model of detention. DHS currently does not have a risk assessment tool 
to determine who should be detained and who merits release. Each 
decision by ICE to detain an individual should be an informed and 
careful determination taking into consideration: (1) Prohibitions from 
arbitrary detention found both in U.S. law and international law, as 
well as (2) prudent use of Government resources. Those who pose no 
threat to public safety or risk of flight should not be detained.
---------------------------------------------------------------------------
    \7\ Schriro report at 6; Immigrations and Custom Enforcement 
Policies and Procedures Related to Detainee Transfers, DHS Office of 
Inspector General, OIG-10-13, Nov. 2009, available at http://
www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-13_Nov09.pdf.
---------------------------------------------------------------------------
    As a first step toward improved management and positive reform, ICE 
must examine whom they are detaining and why. A front-end risk 
assessment, repeated at periodic intervals, would aid the agency in 
determining when detention is necessary, and would help eliminate 
arbitrary detention. In the absence of a risk assessment or 
classification instrument, detention becomes far too automatic and 
those detained are left shouldering the burden of showing why they 
merit release. The immediate need for initial and on-going detainee 
assessment tools is urgent. As one example, ICE admittedly lacks both 
sufficient medical and housing classification systems. Further, 
detainees and their advocates commonly report delays in the issuance of 
charging documents after being taken into custody by ICE, a practice 
that results in individuals being detained with no notice of the 
alleged violations they face.\8\
---------------------------------------------------------------------------
    \8\ Locked Up Far Away: The Transfer of Immigrants to Remote 
Detention Centers in the United States, Human Rights Watch, Dec. 2009, 
at 16-17, available at http://www.hrw.org/en/reports/2009/12/02/locked-
far-away-0.
---------------------------------------------------------------------------
    Additionally, internal ICE processes for reassessing the 
circumstances of those in its custody must be improved. ICE's 
compliance with legal limits on indefinite detention are so inefficient 
that detainees often must resort to filing habeas corpus petitions in 
Federal district court to effectuate their release. Further, the DHS 
Inspector General found in two 2009 reports that ICE inaccurately 
recorded and tracked the mere location of detainees.\9\
---------------------------------------------------------------------------
    \9\ Department of Homeland Security, Office of Inspector General, 
Immigration and Customs Enforcement: Detention Bedspace Management, 
OIG-09-52, April 2009, available at http://www.dhs.gov/xoig/assets/
mgmtrpts/OIG_09-52_Apr09.pdf; Department of Homeland Security, Office 
of Inspector General, Immigration and Customs Enforcement's Tracking 
and Transfers of Detainees, OIG-09-41, March 2009, available at http://
www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-41_Mar09.pdf.
---------------------------------------------------------------------------
    One alarming consequence of ICE's failure to adequately assess its 
detained population is the on-going, and unlawful, detention of U.S. 
citizens as recounted in the media, NGO reports, and in Congressional 
testimony last year.\10\ The Florence Immigrant and Refugee Rights 
Project in Arizona in 2008 alone witnessed more than 40 cases of 
persons in immigration detention each month with potentially valid 
claims to U.S. citizenship.\11\ The Northwest Immigrant Rights Project 
in Seattle has documented 21 cases in the past 3 years of U.S. citizens 
who were detained by ICE.\12\ ICE has no authority to deprive liberty 
to a U.S. citizen, but without a thoughtful, front-end assessment of 
all individuals taken into custody, this will continue.
---------------------------------------------------------------------------
    \10\ Thirty-eight percent of immigration lawyers studied in 
Minnesota reported that within the past 2 years they had represented at 
least one U.S. citizen who was in immigration detention. Jacob Chin, 
Katherine Fennely, Kathleen Moccio, Charles Miles, Jose D. Pacas, 
Attorneys' Perspectives on the Rights of Detained Immigrants in 
Minnesota, Nov. 2009, available at http://lawprofessors.typepad.com/
files/final-cura-article-11-10-09.pdf. See also Kristin Collins, N.C. 
Native Wrongly Deported to Mexico, CHARLOTTE OBSERVER, Aug. 30, 2009, 
available at http://www.charlotteobserver.com/local/story/917007.html; 
Robert Zullo, Despite Citizenship Claims, Woman Shipped to Honduras, 
THE THIBODAUX DAILY COMET, June 14, 2009, available at http://
www.dailycomet.com/article/20090614/ARTICLES/906141011?Title=Despite-
citizenship-claims-woman-shipped-to-Honduras; Daniel Hernandez, Pedro 
Guzman's Return, LA WEEKLY, Aug. 9, 2007, available at http://
www.laweekly.com/2007-08-09/news/pedro-guzman-s-return/.
    \11\ Written testimony of Kara Hartzler, U.S. House of 
Representatives, Committee on the Judiciary, Subcommittee on 
Immigration, Feb. 13, 2008, available at http://judiciary.house.gov/
hearings/pdf/Hartzler080213.pdf.
    \12\ Zullo, Despite Citizenship Claims, Woman Shipped to Honduras.
---------------------------------------------------------------------------
    A second illustrative example of the need for improved assessments 
is the many special populations who linger in detention. One such 
population is arriving asylum seekers, over whom ICE wields sole 
authority to grant release from detention in the form of parole. Those 
asylum seekers who are granted parole are released into the care of a 
family member, friend, or community organization while their 
immigration hearings are pending. Immigration judges have no review 
authority of ICE's discretionary parole determinations. Dr. Schriro's 
report asserted that internal guidance on parole decisions is under 
review. As the agency undertakes its review process, it should ensure 
that all individuals are afforded an individualized assessment as to 
whether detention is necessary before they are deprived of their 
liberty.
    Further evidence of the inappropriate use of detention is a spate 
of high-profile cases where the severely ill, disabled, or pregnant 
individuals are kept in custody. Perhaps most alarming are allegations 
that detainees have died in immigration custody due to preventable 
medical causes; these allegations have prompted litigation and public 
outcry.
    DHS has acknowledged that developing an effective risk assessment 
procedure is a needed reform and has announced a pursuit of detention 
strategies based on ``assessed risk.'' One of four key recommendations 
in Dr. Schriro's report was that ICE develop a ``new set of standards, 
assessments, and classification tools'' in coordination with 
stakeholders. Her report also finds, ``The ideal system should create 
the capacity to detain and to supervise aliens consistent with assessed 
risk.'' However, the requisite tools to determine risk among the 
detained population are still under development. The NGO community 
should be tapped as early in the process as is feasible to actively 
assist in the development process.
    The fundamental importance of a detention system keyed to assessed 
risk of individual detainees must not be overlooked. Assessment of risk 
is a crucial component of a well-managed detention system as this 
determination informs decisions regarding release, bond determinations, 
parole decisions, participation in alternatives to detention, or for 
those who are found to require continued detention, appropriate housing 
assignments, and medical care needs. ICE must conduct an automatic and 
consistent assessment at the outset of detention, and revisit this 
assessment periodically, of the current or on-going need to deprive any 
particular individual of his or her freedom.
                    alternatives to detention (atds)
    Expanding on the recommendation above, ICE must increase and 
improve its utilization of Alternatives to Detention (``ATD'') 
programs. These offer economical and reliable means of ensuring 
compliance with immigration proceedings. One enormously beneficial 
application of the risk assessment tool already discussed is ICE's 
gained ability to properly reach release or ATD enrollment decisions.
    Detention is not mandatory for everyone in immigration proceedings 
and ICE should pursue a continuum of discretionary options in making 
custody determinations, dependent on an individual detainee's 
circumstances. While current options range from continued detention as 
the highest form of custody, to electronic monitoring programs similar 
to ``house arrest,'' to setting bond, to release on one's own 
recognizance, ICE lacks a systemic and effective method for placing 
individuals into appropriate programs. Where flight risk poses the only 
concern, ICE should immediately contemplate whether that risk could be 
effectively mitigated by setting a bond, releasing to family, or 
supervision.
    ICE currently operates three ATD programs: Intensive Supervision 
Appearance Program (ISAP II), Enhanced Supervision Reporting (ESR), and 
Electronic Monitoring (EM). In each program, participants are heavily 
supervised using a combination of global positioning systems, radio 
frequency, and telephonic monitoring. Beginning in 2008, Congress has 
repeatedly ordered ICE to provide an implementation plan for a National 
ATD system.\13\ More recently, Congress appropriated over $69 million 
for ATD programs.\14\
---------------------------------------------------------------------------
    \13\ Schriro report at 20; H. Rpt. 111-298, available at http://
thomas.loc.gov/cgi-bin/cpquery/
?&dbname=cp111&sid=cp111650mg&refer=&r_n=hr298.111&item=&sel=TOC_224515&
; Public Law 111-83, available at http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=111_cong_public_laws&docid=f:publ083.111.
    \14\ H. Rpt. 111-298 and Public Law 111-83.
---------------------------------------------------------------------------
    Support from Congress for ATD programs represents an opportunity 
for ICE. Simple expansion of current programs is not sufficient. 
Successful ATDs would contemplate and address the assessed risk and 
needs of each individual. Yet, there are no current ATDs that utilize 
community-based organizations and services. There is no review process 
for decisions rejecting a detainee for participation in an ATD. Nor do 
existing programs include a reassessment of risk as an individual's 
case proceeds. To maximize success, ICE must expand the available ATD 
programs to include access to community organizations. Assistance upon 
release, such as legal and housing services, can help ensure compliance 
with immigration proceedings.\15\ For example, community assistance can 
help released individuals understand how to meet responsibilities 
regarding their cases.
---------------------------------------------------------------------------
    \15\ The Vera Institute of Justice conducted a pilot alternative 
program from 1997-2000 that reported a 93% appearance rate. LIRS 
coordinated another alternative model that achieved a 96% appearance 
rate. Both programs included community support. U.S. Detention of 
Asylum Seekers: Seeking Protection, Finding Prison, Human Rights First, 
April 2009, at 64, available at http://www.humanrightsfirst.org/pdf/
090429-RP-hrf-asylum-detention-report.pdf.
---------------------------------------------------------------------------
    ICE should utilize rigorous criteria in determining whether to 
detain, release, or enroll an individual in an ATD program. None of the 
Requests for Proposals issued by ICE for the current programs 
articulate enrollment criteria. ICE should prioritize the release of 
vulnerable detainees, such as individuals with on-going medical or 
mental health needs. Contrary to current practice, asylum seekers 
should always be assessed for potential release through an ATD.\16\
---------------------------------------------------------------------------
    \16\ Human Rights First report at 63.
---------------------------------------------------------------------------
    In revisiting program design, ICE also has the chance to address 
shortcomings in how ATDs as they now exist are implemented. As 
currently operated, ATDs rely on intense supervision and restrictions 
on movement and liberty; they serve as alternative forms of custody 
rather than a true alternative to detention. Critical to the success of 
any ATD, ICE must develop standards for selecting individuals into an 
ATD with the appropriate level of supervision and for determining 
compliance with the program. Conditions or restrictions on release must 
be reasonable based on an individualized assessment. These standards 
should be directly implemented and enforced by ICE to ensure that the 
programs achieve desired outcomes and are uniformly operated.
    Importantly, ATDs should be contemplated only after it has been 
determined that an individual is not eligible for another form of 
release. Explicit and standard criteria would ensure that individuals 
receive the appropriate level of supervision. At the very minimum, 
ATDs, as conceptualized, can be an effective, fiscally responsible, and 
more humane method for monitoring individuals who may have legitimate 
immigration claims and for whom detention is unreasonably burdensome, 
such as asylum seekers, families, and the infirm. ICE has a great 
opportunity to implement them as such by incorporating these 
recommendations. More robust and effective ATD programs will also lead 
to more manageable detention levels and a better use of limited 
security resources.
                  expected growth in detention demand
    DHS initiatives collaborating with local law enforcement agencies 
increasingly contribute to the vast population of immigration 
detainees, most of whom do not have criminal convictions and should be 
considered for alternative programs.\17\ The need to assess the 
incoming population and utilize alternatives to detention when 
appropriate is becoming urgent. DHS detention reform initiatives are at 
risk of being outpaced by Federal and local programs that seek to 
identify alleged immigration law violators through the criminal justice 
system. The impending National activation of the Secure Communities 
initiative and other similar operations are indisputably one factor 
driving the need for ICE to assess its current population, explore 
alternatives to detention when appropriate, and identify capacity to 
appropriately house the expected influx of detainees.
---------------------------------------------------------------------------
    \17\ According to ICE statistics, the majority of individuals 
booked into immigration detention through the 287(g) program or the 
Criminal Alien Program, have no criminal convictions. Schriro report at 
13.
---------------------------------------------------------------------------
    meaningful and appropriate standards for conditions of detention
    Conditions of immigration detention should reflect its civil, non-
punitive basis and be tailored to the agency's assessments regarding 
who is being detained, why they are being detained, and whether those 
in detention have special needs. ICE must also shift its culture from 
one that is dominated by a law enforcement or correctional mentality to 
one that appropriately addresses the diverse and often vulnerable 
populations in their custody.
    The sheer number and variety of facilities used by DHS pose a 
serious challenge to successful, uniform management. DHS houses 
detainees in both short-term facilities designed for temporary use, 
such as holding individuals apprehended along the border or deportation 
staging centers, and in facilities that provide prolonged detention to 
individuals as their cases as considered. The current constellation of 
long-term detention facilities consists of seven Service Processing 
Centers owned by ICE and operated by private industry, seven Contract 
Detention Facilities owned and operated by private industry, and a 
behemoth patchwork of approximately 300 facilities contracted through 
Inter-Governmental Service Agreements (``IGSAs'').\18\ A handful of 
these IGSA facilities are dedicated to housing ICE detainees. The 
remainder contract bedspace to ICE while also holding individuals for 
the criminal justice system.
---------------------------------------------------------------------------
    \18\ Schriro report at 10 (counting approximately 240 IGSA 
facilities); OIG report, Detention Bedspace Management, at 2 (counting 
more than 350 IGSA facilities).
---------------------------------------------------------------------------
    Approximately 68 percent of the ICE population, the bulk of current 
detainees, is housed in IGSA facilities (typically, a county jail).\19\ 
While ICE evaluates these facilities annually to ascertain compliance 
with the detention standards, many are not physically capable of 
complying. For example, some IGSA facilities do not have outdoor 
recreation areas or lack legal visitation areas with even minimal 
privacy protections.\20\ Further, in many facilities, ICE detainees are 
housed alongside individuals in the general criminal population.\21\
---------------------------------------------------------------------------
    \19\ MPI report at Figure 4.
    \20\ Minnesota report; Jailed Without Justice: Immigration 
Detention in the USA, Amnesty International, March 2009, at 41-42, 
available at http://www.amnestyusa.org/uploads/
JailedWithoutJustice.pdf.
    \21\ Amnesty report at 37.
---------------------------------------------------------------------------
    Current detention practices at many of facilities severely limit 
access to families and attorneys. Visits in some detention facilities 
are restricted to video conferencing.\22\ The flat prohibition on 
contact visits among family members at one immigration detention 
facility in Los Angeles was chastised as ``unnecessary and cruel'' by 
the Police Assessment Resource Center in October 2009.\23\ Telephone 
access in immigration detention continues to be plagued by broken 
equipment, confusing and complicated instructions, steep service rates, 
and limited hours of operation.\24\ As an example of systemic obstacles 
to legal services for detainees, it takes attorneys in Minnesota an 
average of 6 days to make initial contact with their clients in 
immigration detention.\25\ The use of remote facilities and the overuse 
of transfers also hinders detainees' access to legal services and 
family and impedes their ability to challenge their detention and 
deportation. The harsh and disruptive consequences of frequent and 
haphazard transfers were documented in reports released just last week 
by NGOs and the DHS Inspector General.\26\ The Inspector General found 
significant noncompliance with transfer standards in a March 2009 
report,\27\ and more recently found that transfer determinations ``are 
not conducted according to a consistent process'' and lead to ``errors, 
delays, and confusion.''\28\ Not only are haphazard transfers 
inefficient, they impede access to legal services and families, which 
further upsets the system. When detainees are transferred far away, 
continuances are required for legal proceedings that have been 
disrupted and critical documents or evidence may be left behind.
---------------------------------------------------------------------------
    \22\ Minnesota report.
    \23\ Police Assessment Resource Center, The Los Angeles County 
Sheriff's Department 28th Semiannual Report, Oct. 2009, at 41, 
available at http://www.parc.info/client_files/LASD/
28th%20Semiannual%20Report.pdf.
    \24\ Minnesota report; Amnesty report at 35-36.
    \25\ Minnesota report.
    \26\ Human Rights Watch report; Huge Increase in Transfers of ICE 
Detainees, Transactional Records Access Clearinghouse (TRAC), Dec. 
2009, available at http://trac.syr.edu/immigration/reports/220/.
    \27\ Department of Homeland Security, Office of Inspector General, 
Immigration and Customs Enforcement's Tracking and Transfers of 
Detainees, OIG-09-41, March 2009, available at http://www.dhs.gov/xoig/
assets/mgmtrpts/OIG_09-41_Mar09.pdf.
    \28\ OIG Nov. 2009 report at forward.
---------------------------------------------------------------------------
    Medical care also remains a critical concern in immigration 
detention. Recent deaths in immigration detention facilities in 
Virginia and Rhode Island sparked concern, lawsuits, and 
investigations.\29\ Following each of these deaths, ICE pulled the 
remaining detainees from the facilities under scrutiny. In just the few 
weeks since the latest detention reforms were announced, two additional 
detainees have died in ICE custody, putting the spotlight rightly on 
medical care for detainees.\30\ Detainees and their attorneys continue 
to struggle to request and receive attention for emergent and chronic 
conditions, ensure continuity of care despite transfers, access medical 
records, and stabilize mental health conditions. Better access to 
health care, not to mention an end to any preventable detainee deaths, 
is essential. DHS' plans to create a classification system to place 
those with health needs in appropriate detention facilities are a 
welcome step. However, the Government must ensure that any medical 
classification system explicitly contemplates release or enrollment in 
an ATD for those inflicted with medical or mental conditions. Merely 
building facilities better suited to care for the infirm without 
considering more humane, secure alternatives would be shortsighted.
---------------------------------------------------------------------------
    \29\ Eric Tucker, Chinese Detainee's Widow Wants Government Kept in 
Lawsuit, THE BOSTON GLOBE, Nov. 12, 2009, available at http://
www.boston.com/news/local/rhode_island/articles/2009/11/12/
chinese_detainees_widow_wants_government_kept_in_lawsuit/; Nick Miroff, 
ICE Facility Detainee's Death Stirs Questions, THE WASHINGTON POST, 
Jan. 30, 2009, available at http://www.washingtonpost.com/wp-dyn/
content/story/2009/01/31/ST2009013101877.html; Nina Bernstein, U.S. 
Agency Issues Scathing Report on Death of Immigrant in its Custody, THE 
NEW YORK TIMES, Jan. 16, 2009, available at http://www.nytimes.com/
2009/01/16/world/americas/16iht-detain.1.19422767.html.
    \30\ See ICE Press Releases at http://www.ice.gov/pi/nr/0910/
091020boston.htm and http://www.ice.gov/pi/nr/0911/
091123philadelphia2.htm.
---------------------------------------------------------------------------
    Secretary Napolitano recently set a 1-year benchmark for revising 
immigration detention standards at long-term facilities. Existing 
standards are fundamentally inappropriate for the civil, non-punitive 
immigration framework envisioned by the agency today. The Performance-
Based National Detention Standards, revised by ICE in 2008 and not yet 
fully implemented, are based on a correctional model, were commented on 
by NGOs who sought to improve the language, yet remain a set of 
standards derived from and intended for a jail-based detention model. 
Given the Secretary's goal for revising detention standards, full 
implementation of the 2008 standards is uncertain.
    Revising existing detention standards is a significant opportunity 
for ICE. In the meantime, immediate steps towards improving conditions 
and breaking from the mold of punitive detention can and should be 
taken. Extension of family visitation hours and days, permission of 
contact visits, and expansion of freedom of movement inside facilities 
and within recreation areas should be implemented immediately. ICE must 
follow these initial first steps with the development and 
implementation of standards that comport with the civil nature of 
immigration detention.
                               oversight
    The non-jail-like detention centers proposed by DHS have the 
potential to be more efficient, humane, and civil than those currently 
in use. However, any actual improvement in conditions will depend on 
the enforcement of adequate standards. These standards must be 
mandatory at all facilities with sufficient oversight to produce 
consistent and humane treatment of detainees. Violations must trigger 
appropriate and enforceable sanctions. Importantly, progress toward 
improved conditions should not eclipse the underlying need for better 
assessments and subsequent consideration for release, parole, bond, and 
ATDs. In the meantime, Congress should continue to monitor and ensure 
ICE's progress towards establishing and implementing consistent, safe, 
and appropriate immigration detention conditions.
    Government monitoring of compliance with detention standards is 
critically important as standards are not codified in statute or 
regulations. Lack of meaningful oversight has long been a major 
weakness of the immigration detention system. Voluminous reports by 
NGOs, the Government Accountability Office and the DHS Inspector 
General have documented deficiencies in compliance with detention 
standards. A shared conclusion of these reports, as well as many other 
accounts from detainees, is that ICE fails to adequately monitor 
conditions in detention facilities. Development, implementation, and 
enforcement of the standards can deliver consistent conditions of 
confinement and essential protections for detainees.
    DHS has publicly committed to improving oversight of detention 
facilities through on-site monitoring and routine and random 
inspections by the newly created ICE Office of Detention Oversight. 
Another announced improvement to oversight is review of medical request 
denials by a medical expert. Further, the number of on-site, Federal 
employees contemplated at the largest ICE detention facilities was 
expanded from 23 as announced in August to 50 as announced in October. 
These reforms will be a good start towards improving compliance with 
detention standards. However, monitoring must take place at every 
facility used by ICE to house detainees. The power of in-person 
monitoring can be substantial. Detainees at one facility in Texas were 
visibly losing weight because of insufficient food. After Dr. Schriro 
visited and heard complaints of hunger from detainees, advocates report 
that meal portions improved.
    Another necessary component of robust oversight is a functioning 
grievance process. As part of its reforms, ICE has stated that the 
Office of Detention Oversight will investigate grievances and alleged 
misconduct. The complaint processes within the immigration detention 
system have been historically slow and lacking in their ability to 
remedy individual grievances. Many detainees are not aware of the 
existing process that directs complaints to the DHS Office for Civil 
Rights and Civil Liberties and the DHS Office of Inspector General, 
don't trust it, or feel that the small chance that a complaint will 
result in an improved system or a personal remedy is not worth the risk 
of retaliation.
                             accountability
    Announcements to ramp up aggressive monitoring and enforcement of 
terms of contracts with detention facilities to improve conditions of 
confinement are encouraging. The stated intention to terminate 
contracts where poor performance cannot be remedied is especially 
heartening. It is also notable that this monitoring and enforcement 
activity, as announced, is to be conducted by ICE and not outsourced to 
private industry, as has been the case with monitoring efforts in the 
past. ICE must cease the practice of renewing contracts with and 
housing detainees at facilities with noted deficiencies. In the past, 
there have been no apparent consequences for failures in facility 
management and therefore no incentive to improve. Oversight without 
consequences is meaningless.
                               conclusion
    Over the years, ICE has failed to effectively manage and oversee 
its massive immigration detention system, even as the number of 
individuals it detains has grown exponentially. The sweeping reforms 
that were recently announced are promising but not fully developed, yet 
alone implemented. Necessary and fundamental reforms must enable ICE to 
consistently and automatically assess each of the individuals it 
detains and consider release or enrollment in an alternative form of 
supervision. This assessment must inform housing and medical 
considerations for any detainees that are determined to require on-
going detention. Next, ICE must overhaul standards of confinement 
within immigration detention so that conditions become appropriate for 
the civil nature of immigration detention. These revised standards must 
be vigorously enforced.
    Comprehensive immigration reform that includes a path to 
legalization would significantly reduce the number of individuals 
present in the United States in violation of the immigration laws, and 
consequently reduce the need for a system to ensure compliance from 
individuals awaiting adjudication of their immigration claims or 
awaiting deportation. In the mean time, Congress should ensure that DHS 
transitions to a detention system that is right-sized, safe, humane, 
and efficient.

    Ms. Sanchez. Thank you for your testimony.
    I now recognize Mr. Krikorian for 5 minutes or less to 
summarize your testimony.

  STATEMENT OF MARK KRIKORIAN, EXECUTIVE DIRECTOR, CENTER FOR 
                      IMMIGRATION STUDIES

    Mr. Krikorian. Thank you, Madam Chairwoman.
    Barbara Jordan, the chairman of the U.S. Commission on 
Immigration Reform, told Congress in 1995, ``Credibility in 
immigration policy can be summed up in one sentence: those who 
should get in get in, those who should be kept out are kept 
out, and those who should not be here will be required to 
leave.''
    Our progress in the third of Ms. Jordan's requirements, 
removing those who should not be here, still leaves much to be 
desired.
    It is not just that we have 11 million illegal aliens 
living here, even among those aliens who have gone through the 
whole immigration court process and been issued final orders of 
removal, more than 500,000 of them have shown their contempt 
for American immigration law by absconding, something they 
could not have done had they been detained.
    DOJ's inspector general found in 2003 that 87 percent of 
apprehended aliens who were not detained ran off, including 94 
percent of those from countries that sponsor terrorism and 97 
percent of non-detained aliens who were denied asylum.
    A 2006 report by the DHS IG said in its understated way, 
``Currently DRO is unable to ensure the departure from the U.S. 
of all removable aliens.''
    The disregard for immigration law is so pervasive that the 
notification that a non-detained alien receives about his final 
order of removal is colloquially known as a ``run letter,'' 
because when he gets the letter he runs. He can only do this 
because he is not being detained.
    In short, a majority of the removable aliens who promise to 
appear for their court dates are simply lying to immigration 
authorities. This is the reason immigration detention must not 
only continue but must be expanded significantly.
    The only way to ensure that illegal aliens actually appear 
before an immigration court is to physically compel them to do 
so through detention. Immigration law is literally meaningless 
without widespread use of detention to ensure that immigration 
violators actually leave.
    While it can be worth experimenting with various 
alternatives to detention, in the real world their likelihood 
of success is limited.
    Pilot programs to assess the viability of such alternatives 
either include people who would not have been detained anyway--
cream-skimming or cherry-picking, if you will--or fudged the 
statistics to make the results appear more favorable, as the 
Houston Chronicle recently revealed.
    Furthermore, alternatives to detention are not even really 
plausible subjects for experiment unless the criminal penalties 
for failing to appear are employed.
    In other words, only when ordinary absconders, no sexual 
predators or terrorists but just regular illegal aliens who 
didn't come up for their court dates, are routinely prosecuted 
and given stiff prison sentences can alternatives to detention 
even be plausibly considered, because then there is a sanction 
or a stick for not complying.
    The pervasive unwillingness of illegal aliens to comply 
with immigration law in the absence of detention is not 
surprising, after all.
    Unlike in the criminal justice setting where failing to 
appear often results in additional penalties, a final order of 
removal is all that an illegal alien realistically faces 
whether he shows up for immigration court or not.
    Furthermore, those failing to appear for immigration 
proceedings are likely to avoid detection for many years, given 
authorities' still frivolous approach to tracking down 
immigration absconders.
    In short, alternatives to detention usually is just a 
synonym for catch and release. Rather than focus on a futile 
search for more alternatives to detention, we would be better 
advised to increase ICE's bed space.
    As you noted, Madam Chairwoman, detention capacity grew to 
more than 33,000 as of fiscal year 2009, but in the current 
fiscal year there was no request for an increase. It is a flat 
number. This reluctance to increase detention capacity is 
curious, to say the least.
    Secure Communities in 287(g) guarantee that the number of 
aliens ICE is going to have to detain is going to increase 
significantly. The mismatch that is coming between supply and 
demand for detention beds is going to have two results.
    First, illegal aliens not involved in other crimes are even 
less likely to be detained than now, which means the absconder 
population is going to resume its rapid growth.
    Second, when all of them are no longer in detention, then 
criminal aliens who are being handed over to ICE will end up 
having to be released for lack of space. Those people are going 
to commit further crimes.
    The political blowback that both Congress and the 
administration will face when that happens, when aliens--
criminal aliens that ICE knew about and then ordered their 
release--that outrage is going to be deserved, I would have to 
say.
    In conclusion, all Americans support efforts to make 
detention as professional and as humane as reasonably possible. 
But our focus must be on the vital role of detention as a 
necessary tool to maintain the integrity of our immigration 
system. Thank you.
    [The statement of Mr. Krikorian follows:]
                  Prepared Statement of Mark Krikorian
                           December 10, 2009
    Barbara Jordan, chairwoman of the U.S. Commission on Immigration 
Reform, told Congress in 1995: ``Credibility in immigration policy can 
be summed up in one sentence: those who should get in, get in; those 
who should be kept out, are kept out; and those who should not be here 
will be required to leave.'' Our immigration policy has never lagged in 
letting people in. And we have gotten a little better at keeping out 
those who should be kept out. But our progress in the third of Ms. 
Jordan's requirements--removing those who should not be here--still 
leaves much to be desired.
    It's not just that we have 11 million illegal aliens living here. 
Even among those whom we have formally designated as ``should not be 
here''--aliens who've gone through the immigration court process and 
been issued final orders of removal--more than half a million have 
expressed their contempt for American immigration law by absconding.
    This is not a new problem. A 2006 report from the DHS Office of 
Inspector General found that:

``Currently, DRO is unable to ensure the departure from the U.S. of all 
removable aliens. Of the 774,112 illegal aliens apprehended during the 
past three years, 280,987 (36%) were released largely due to a lack of 
personnel, bed space, and funding needed to detain illegal aliens while 
their immigration status is being adjudicated . . . Further, historical 
trends indicate that 62 percent of the aliens released will eventually 
be issued final orders of removal by the U.S. Department of Justice 
Executive Office of Immigration Review (EOIR) and later fail to 
surrender for removal or abscond.'' (``Detention and Removal of Illegal 
Aliens,'' OIG-06-33 April 2006)

    A few years earlier, in 2003, the Department of Justice's Office of 
Inspector General (before the reorganization of immigration functions 
in the Department of Homeland Security) found essentially the same 
thing:

``Although the INS remains effective at removing detained aliens, it 
continues to be largely unsuccessful at removing nondetained aliens, 
removing only 13 percent of those we sampled. Moreover, the INS was 
deficient at removing important subgroups, removing only 6 percent of 
the nondetained aliens from countries that sponsor terrorism, 35 
percent of nondetained criminal aliens, and only 3 percent of non-
detained aliens denied asylum.'' (``The Immigration and Naturalization 
Service's Removal of Aliens Issued Final Orders,'' Report Number I-
2003-004, February 2003)

    The disregard for immigration law is so pervasive that the 
notification that a non-detained alien receives about his final order 
of removal is colloquially known as a ``run letter''--because when he 
gets the letter, he runs. In a similar phenomenon, during the surge of 
non-Mexican illegal immigration on the southern border a few years 
back, a lack of money for detention forced the Border Patrol to release 
the apprehended illegal aliens with a summons requiring them to come 
back for an immigration hearing in 30 days--and that summons came to be 
known as the ``diploma,'' since it permitted the holder to ``graduate'' 
into the United States and get lost in the large urban immigrant 
communities. Needless to say, very few of these people returned for 
their hearings.
    And the lack of detention space can have serious consequences. For 
instance, Ghazi Ibrahim Abu Maizar was a Palestinian illegal alien who 
had been caught three times trying to sneak into Washington State from 
Canada. But on his third try, in 1996, Canadian authorities refused to 
take him back. Instead of detaining him, the Border Patrol had no 
choice but to release him into the United States with a summons to 
appear before an immigration court. Because he was not detained, he was 
able to proceed with a plot to bomb the New York subways, which was 
averted at the last minute only when a roommate informed police.
    In short, a majority of removable aliens who promise to appear for 
their court dates are simply lying to the immigration authorities. This 
is the reason immigration detention must not only continue, but must be 
expanded significantly. The only way to ensure that illegal aliens 
actually appear before an immigration court is to physically compel 
them to do so through detention. While it can be worth experimenting 
with various alternatives to detention, in the real world their 
likelihood of success is limited. Pilot programs to assess the 
viability of alternatives to detention often either include people who 
would not have been detained anyway (i.e., cream-skimming or cherry-
picking those most likely to yield the ``right'' result) or fudge the 
statistics to make the results appear more favorable, or both. For 
instance, the Houston Chronicle had to make a Freedom of Information 
Act request to discover that:

``Nearly one in five suspected illegal immigrants who went through an 
Immigration and Customs Enforcement intensive monitoring program 
absconded while under supervision during the past 5 years, newly 
disclosed records show . . . 

``On its website, ICE boasts a 99 percent appearance rate in 
immigration court for participants in its restrictive Intensive 
Supervision Appearance Program (ISAP). Yet records maintained by 
private contractors that administer ISAP show they were `unable to 
locate' 18 percent of 6,373 illegal immigrants who passed through the 
program between 2004 and the end of January. Five percent were re-
arrested by ICE, records show.'' (``Flaws found in options for 
immigrant detention,'' Houston Chronicle, October 20, 2009)

    Furthermore, alternatives to detention are not even plausible 
subjects for experiment unless the criminal penalties for failing to 
appear are employed. In other words, only when ordinary absconders--who 
aren't sexual predators or terrorists but just regular illegal aliens 
who ignored their court dates--are routinely given stiff prison 
sentences can alternatives to detention even be plausibly considered.
    The pervasive unwillingness of illegal aliens to comply with 
immigration law in the absence of detention is not surprising. Unlike 
in the criminal justice setting, where failing to appear often results 
in additional penalties, a final order of removal is all an illegal 
alien realistically faces, whether he shows up to immigration court or 
not. Though the law provides for imprisonment of up to 10 years for 
aliens who fail to appear at their hearings, the chances that an 
immigration absconder not involved in additional crimes will be 
prosecuted are vanishingly small. Furthermore, those failing to appear 
for immigration proceedings are likely to avoid detection for many 
years, perhaps for the rest of their lives, given authorities' still-
frivolous approach to tracking down immigration absconders. For 
example, under pressure from local advocacy groups, many police 
departments refuse to serve ICE administrative warrants issued to 
absconders, thus shielding the scofflaws from facing the consequences 
of failing to depart. Thus, alternatives to detention are simply 
irrelevant for those likely to be rejected for asylum or cancellation 
of removal--i.e. the majority of those in removal proceedings.
    In other words, ``alternatives to detention'' is simply a synonym 
for ``catch and release.''
    Rather than focus on a futile search for alternatives to detention, 
we would be better advised to increase ICE's bed space. There was, in 
fact, an increase through fiscal year 2009, albeit from a low starting 
point. ICE had funding for 18,500 detention beds in fiscal year 2003, 
32,000 beds by 2008, and 33,400 beds in fiscal year 2009. But the 
growth has stopped, with the fiscal year 2010 DHS budget allowing for 
no increase in detention beds. This despite the fact that the actual 
physical capacity to detain more illegal aliens exists in most parts of 
the country, much of it in unused county jail space. What's more, a 
number of States have offered to help ICE by covering the up-front cost 
of new jail construction in exchange for an understanding that ICE will 
use it.
    The reluctance to increase detention capacity is curious, to say 
the least, in light of the Secure Communities initiative and the spread 
of jail-based 287(g) programs. These efforts ensure that the number of 
aliens ICE will have to detain is going to increase significantly. The 
mismatch between supply and demand for detention beds will likely have 
two results: First, illegal aliens not involved in other crimes will be 
even less likely to be detained than now, meaning the number of 
absconders will resume its growth. Second, there will be an increase in 
the number of criminal aliens whom local jurisdictions have alerted ICE 
to, but who have to be released because of a lack of funding for 
detention space. The result of both of these developments will not only 
be bad policy, but also bad politics--the public's confidence in the 
Government's promises to enforce the law will be further eroded and, 
when a number of the released criminals inevitably commit new crimes 
after having been ordered released by ICE, the administration and 
Congress will rightly be subjected to public outrage. An example of how 
detention of certain illegal aliens can literally save lives: Davidson 
County, TN, has reported that 75 percent of the vehicular homicides 
committed by illegal aliens would have been prevented if the illegal 
alien had been deported, presumably after detention, on the basis of 
prior offenses.
    A final point on the supposedly inhumane nature of detention. Most 
aliens are detained for a short time, an average of 1 month. With a few 
exceptions, the small number who remain in detention for long periods 
are there because they continue to challenge their deportation. And 
they often do so because they are given false hope by open-borders 
advocacy groups intent on using such people as pawns in a political 
effort to hamper enforcement of American immigration laws. The humane 
thing to do would be to make clear to these illegal aliens that 
immigration to the United States is a false dream for them and help 
them return home and get on with their lives. Instead, they languish in 
detention--a needed detention, given the virtual certainty that they 
would ignore a negative decision on their cases--but languish 
nonetheless.
    All Americans support efforts to make detention as humane as 
possible. But it is essential to emphasize that detention is a 
necessary tool and consequence for those who have violated our 
immigration laws.

    Ms. Sanchez. Thank you, Mr. Krikorian, for your testimony.
    I thank all of the witnesses for their testimony. I will 
remind each Member that each of us will get 5 minutes to 
question the witnesses, and I will now recognize myself for 
some questions.
    I am trying to wrap my arms around this whole issue of 
detention. There are a lot of differences, obviously, on this 
panel, which is a good thing. I think most of you are working 
in a particular area of this whole detention issue, and so I 
have a couple of questions.
    First of all, what is the average length of stay for 
somebody in a detention facility, whether they are moved or 
not? What is the average length before we decide yes, you have 
a real case, and you have gone before a judge, and you are 
moving in a different direction to stay here, or no, you have 
nothing, we have got to get you out of the country now?
    Does anybody have some idea of what that would be?
    Doctor.
    Ms. Schriro. Thank you. The average length of stay was 30 
days at the time of the preparation of the report. But like all 
averages, it is something of a misleading statistic. There are 
a large number that are gone within 1 day, a large number gone 
within a week, a larger number gone within a month.
    There are relatively few that are there longer than 6 
months and, for fiscal 2008, fewer than 2,100 who stayed a year 
or more. But of course, within that time, then there is, as you 
suggest, movement to more than one facility.
    Ms. Sanchez. So are you saying to me that it is sort of 
like the 80/20 rule, 80 percent are easy to decide within a day 
or a week or what have you, but it is that other 20 percent 
that take up a lot of the resources and time to deal with?
    Ms. Schriro. Well, you could have people there for a short 
period of time but by virtue of high need or their high risk 
that they present, you know, will incur more costs as well.
    But those who agree to removal are typically gone fairly 
quickly, and those who are seeking some form of relief will 
tend to stay longer.
    Ms. Sanchez. Anybody have a different answer than what we 
just heard from the doctor?
    Mr. Kerwin. I don't have a different answer, but I did want 
to say that, you know, the average is 30 days, but there is--25 
percent are out within a day or two. But there are a 
significant number of long-term detainees.
    When we looked at a database of everybody in detention on a 
particular night in January 2009, we found that more than 4,000 
of the people in detention on that night had been in custody 
for more than 6 months as of that date.
    Of those, almost 1,000 had been detained for more than 6 
months after having received an order of removal. That is a 
significant date, because the Supreme Court has held that 
detainees must be released within 6 months of a removal order, 
unless the Government can show that there is a significant 
likelihood of removal in the future.
    So there are a high number of people in ICE custody--a low 
percentage but a high number--on any given night who are 
presumptively eligible for release. That doesn't mean they have 
to be released, but under the Supreme Court decision the burden 
is on the Government to show that they can be released soon.
    Ms. Sanchez. Yes.
    Ms. Nystrom. In my experience, the average length of stay 
varies tremendously across facilities. As you have noted, there 
is a patchwork of facilities that vary in condition standards.
    I would submit that the length of stay also varies widely 
across facilities. This is one area that is a tremendous 
inefficient use of Government resources.
    For facilities that are located near the border, the 
repatriation rate is much quicker than facilities that are 
located, for example, here in Virginia. In my experience, 
detainees with a final order of removal in detention often wait 
2, sometimes 3, months simply to be returned to their country 
of origin.
    Ms. Sanchez. Okay.
    Mr. Crane. May I add to that, ma'am?
    Ms. Sanchez. Yes.
    Mr. Crane. On the length of stay, the agency actually 
announced last week that the average length of stay for an ICE 
detainee is 6 weeks.
    I would add to that, as far as our officers in the field, 
we try to have an individual removed if we can within 1 to 2 
weeks. Usually every week we are shooting for 1 week, as fast 
as we can, to move this individual, because we, frankly, don't 
have the bed space to keep them.
    Now, as far as the length of stay, I think it is important 
to say that there is a lot of things making that happen, but 
the key thing being--is that that individual, generally 
speaking, is trying to pursue their case. They are trying to 
stay here.
    One of the big frustrations that we have on the DRO side of 
the house is that when they show up for court, a lot of times 
they are not prepared for court or their attorney, more 
specifically, is not prepared for court.
    They are asking for continuances, which depending on our 
court calendars may be 6 months at a--or, I am sorry, 6 weeks 
at a time. So these detention stays really are dependent on the 
individual.
    The individual is creating--they are trying to fight their 
case, so it is not--most of the time it is not something that 
we are trying to do. We are trying very hard to get them out of 
custody.
    Ms. Sanchez. So, Mr. Crane, would you say that this person 
who is trying to fight their case--you think they are just 
dragging their feet so they can just stay, stay, stay?
    Or do you think it is because we are not doing a good job 
about making sure they can see their lawyer, we have 
transferred them so now they have got to start with a new 
lawyer, or maybe phone calls aren't allowed out?
    Or do you think it is because the detention facility 
doesn't really allow them the opportunity to put together a 
good case in a short amount of time, or because they simply are 
going to push the judge or the system as long as they can?
    Mr. Crane. I don't think anyone wants to stay in jail. I 
think every one of these individuals wants to see their case 
come to a close as quickly as possible. That is my personal 
opinion.
    But there are a lot of things going on that--you know, for 
example, like I said, the attorneys constantly showing up to 
court and the attorney is not prepared. It has nothing to do 
with the detainee. They are asking for these continuances. This 
is happening all over the country, so----
    Ms. Sanchez. Would anybody opine as to why these attorneys 
aren't prepared?
    Mr. Crane. Because the system allows them not to be 
prepared. When they can show up to court and they can ask for a 
continuance, and they know they are going to get it, then they 
are going to continue to do it, until the judges start, you 
know, holding these attorneys accountable.
    Ms. Sanchez. Anybody else have a different opinion on that?
    Mr. Kerwin. Yes. I mean, I have a strongly different 
opinion. The fact is that most people in removal proceedings 
don't have counsel, so most of the continuances are to seek 
counsel, to try to get some kind of representation.
    You know, they are not fighting their removal. They are 
pursuing relief from removal. That is what they are doing. They 
are pursuing relief for things that they may be entitled to 
under U.S. laws.
    Ms. Nystrom. I would also like to add that some of the 
attorneys seeking continuances are, in fact, ICE's trial 
attorneys, and that happens on occasion when, for example, 
criminal conviction records are not in the file, or, as you 
alluded to, when someone has been transferred to a new facility 
and the alien file does no go with the detainee to the new 
location.
    That results in a significant delay, and that was pointed 
out in the inspector general's recently released report.
    Ms. Sanchez. So would it be better for us to try to figure 
out that particular process? We don't really do it in this 
subcommittee.
    I think we are very gifted to have Zoe Lofgren on our 
subcommittee because she is over on the Judiciary Committee and 
she deals a lot with some of these issues. But do you think it 
is maybe that the resources aren't in place for someone to be 
able to get their day in court faster with a strong lawyer to 
make sure that they have some redress in the system?
    Anybody want to----
    Mr. Crane. What I can tell you specifically is that we have 
48 hours to serve this individual with documents, charging 
documents, and everything seems to come to a screeching halt 
after that. So yes, the problems really lie after that point.
    We bring them into custody. We serve them with their 
paperwork. And then everything just kind of stops at that 
point.
    Ms. Sanchez. But if things could go faster in the court 
system, then from a standpoint of the detention and the work 
that you do, you are saying that the person who is being held 
wants it to go faster, you all want it to go faster.
    If we can get that process done in a fair resourced way, we 
might not need to look for more beds if we can remove those 
individuals or say maybe you have a real right to be in this 
country, rather than continuing, continuing, continuing because 
there are no lawyers available, or there is not a courtroom 
available, or a person got transferred so records aren't 
following up with these people.
    Mr. Crane. I think that we will always be searching for 
beds, because we are always going to be out there making more 
arrests. But I think that we would serve these individuals much 
better if we could clean up some of those issues, yes, ma'am.
    Ms. Sanchez. Okay.
    I have gone over my time, but I am hoping we might have 
some time for some more questions, because I have a lot more of 
them.
    I will recognize my Ranking Member now, Mr. Souder, for 5 
minutes.
    Mr. Souder. I would request that we seek from ICE, DHS, on 
behalf of the subcommittee, a detailing of how many of the 
appeals actually win--in other words, how many are found that 
they were, indeed, entitled to enter the United States.
    I would guess that it is a small percentage. Do you any of 
you know? Then why were you making assertions if you didn't 
know? I mean, the fundamental question here is that--the 
question is why are these people--and the implication was--is 
that somehow ICE was awful for holding these people here.
    Then we--which I agree with, the reason most of them are 
there are one of two things, they are the only person from, 
say, Brazil, and we have to get a special plane to fly them 
back or buy a ticket, divert agents to do that, some get held 
longer because we can't send them back to the country that they 
came in, we have to--American taxpayers pay to detain them, pay 
for their lawyers, pay for all the information, pay to ship 
them back to Brazil, or wherever--I use Brazil because I have 
seen a number of cases relating to Brazil.
    In fact, then the assertion was made that the reason that 
maybe these trials are taking longer is because of attorneys 
weren't there, they didn't have access and so on.
    The question is that how many of them win, and that would 
seem to me to be the first thing you would want to know, 
because if you could show that most of these people who were 
held and didn't get proper information, or it took a long time, 
in fact were legitimately mistreated, that would be very 
compelling.
    Mr. Kerwin. May I respond?
    Mr. Souder. Yes.
    Mr. Kerwin. Yes.
    Mr. Souder. That is why I asked earlier.
    Mr. Kerwin. Well, we do know. I mean, we don't know--I 
mean, I don't know exactly right here, but, you know, tens of 
thousands of people get relief from removal every year--asylum, 
they are found to be eligible for adjustment of status based--
--
    Mr. Souder. That is what I was----
    Mr. Kerwin [continuing]. On a family tie. You know, some of 
them get, you know, other relief from removal--cancellation 
of----
    Mr. Souder. Thousands----
    Mr. Kerwin. So it is a significant number. We also know 
that the people with legal representation get relief at rates 
that are, you know, sometimes three or up to six times higher 
than those without representation.
    Mr. Souder. Well, I would like to see the formal statistic. 
I believe that you should be able to access reasonable, you 
know, representation. Thousands in the course of millions is 
not particularly an impressive number.
    Then, if that is the case, we should make sure that they 
are there but not try to imply that there is some kind of a 
policy to keep people in prison for a long time. We are dealing 
with a small group that we ought to analyze.
    To the degree they are mistreated, we ought to look and 
test that. Now----
    Mr. Kerwin. If I might, it is not thousands related to 
millions. It is about 330,000 come into removal proceedings 
each year. I am not sure exactly how many of those are 
detained. That is total removal cases. There is many thousands 
of those that do get relief from removal.
    It is not correct to say that there is Government-paid 
attorneys. There is not. So, you know, what you have is you 
have a system where in some facilities there is some legal 
orientation presentations provided to people, but that doesn't 
necessarily lead to legal representation.
    Mr. Souder. The legal organizations that provide the--do 
not receive any Federal money.
    Mr. Kerwin. They do. They do, but there is no Federal money 
for legal representation.
    Mr. Souder. There is no Federal--the organizations that are 
providing--well, I don't want to get bogged down in this. I 
don't believe you are--correctly representing that.
    Mr. Kerwin. No, I am. I am absolutely correct on that.
    Mr. Souder. Many of these organizations receive Federal 
funds and then provide the funding. We provide the law 
libraries. Depending on how a person represents themselves--it 
is not correct to say that there is no Federal funding involved 
in the defenses. It is just not correct. Now----
    Mr. Kerwin. There is no Federal funding for legal 
representation. That is absolutely 100 percent correct.
    Mr. Souder. Indirect. You are saying there is no indirect 
Federal funding----
    Mr. Kerwin. No legal representation. There is funding for 
legal orientation presentations which are, you know, to----
    Mr. Souder. Doctor----
    Mr. Kerwin [continuing]. Hundreds of people in detention 
centers.
    Mr. Souder. Dr. Schriro, could you--I just have a technical 
question. Why are the ICE personnel being required to wear 
uniforms before entering a New York jail? That was a policy 
decision that doesn't apply to any other Federal agencies.
    Ms. Schriro. That is a policy that I instituted upon 
becoming commissioner of New York City, and it was to ensure 
that the population knew the parties with whom they were 
speaking.
    Mr. Souder. You know that ICE agents--I mean, you are 
familiar with this--do not have a standard uniform that they 
wear all the time. Why wouldn't you have the same of FBI, DEA, 
any other Federal agency? What is the point of singling out 
ICE?
    Ms. Schriro. The point is that in the civil system there is 
no equivalent to Miranda, and so when you are spoken to and you 
answer a question, it is without warning or an awareness of 
what the ramifications are.
    So we adopted a practice in New York City, first requiring 
ICE to ask of us to speak with the pretrial individual prior to 
addressing them, and we in turn, when the individual says, 
``Yes, I will speak with ICE, with or without 
representation''--that the people that they meet are properly 
identified.
    Mr. Souder. In civil trials for citizens, are law 
enforcement people required to wear uniforms?
    Ms. Schriro. They are required to--I am sorry? Ask that 
again, please.
    Mr. Souder. In other words, one of my problems here is that 
we are continuing to have this separation in--as if people who 
have entered the United States, A, get exactly the same rights 
as citizens and, in fact, they seem to be getting more rights 
than citizens.
    That while I understand your--and it is not really a 
citizen has a different right, and therefore that may be the 
answer to my question.
    But that one of the whole fundamental problems I have with 
this is that there is this implication that somehow people who 
have entered the country illegally and even if they were--had 
other rights, they still wouldn't have been picked up if they 
hadn't been trying to enter without proper documentation 
between ports of entry--variations like that.
    My frustration is that they are acting like they are not 
criminals. They are arrested just like American citizens are 
arrested for criminal behavior. It is criminal to break the 
law. That is what a crime is.
    Now, there are different types of crimes in severity, and 
most of these people, I agree, are more mild-mannered. They 
are, generally speaking, not resistant. They are very kind. 
Individuals--you know, most are.
    But how you separate out which one is going to necessarily 
be which, what--are we going to have a different standard for 
countries of interest, so to speak, people of interest?
    They haven't committed a crime. They are, say, from a high-
risk country that their--they may be an individual who we have 
on a list. But on what grounds would we hold them as opposed to 
somebody from another country if they haven't committed a 
crime?
    That we are going to set all kinds of double standards 
here. That if somebody is in Virginia and captured, quite 
frankly, it means they have been in the United States for a 
greater period than if they are captured right at the border.
    That they have probably utilized services that they haven't 
paid for, which is a huge debate. That this whole discussion is 
though these people haven't committed criminal acts.
    The No. 1 complaint from law enforcement in my district, 
which ICE has been trying to address, is why local taxpayers 
are having to pay for detention of people for violating Federal 
crimes but who have other problems in our local communities. We 
can't even get them deported.
    That it is a frustration in the United States. If you ask 
the majority of the American people, they think the problem is 
we aren't deporting fast enough. We need more courts as well as 
more detention facilities.
    Most people would agree we should accelerate the 
deportation process. I don't think most people disagree with 
that. If that is where we need more money, let's get them out. 
If they have to have fair--you know, some kind of legal 
representation they aren't getting, then let's see that that 
gets done and get them deported.
    But the whole point of this--I believe it is somehow turned 
on its head, and I just can't get my handle around what we are 
doing.
    Ms. Sanchez. Thank you, Mr. Souder.
    Maybe at some point Zoe Lofgren, who is much more versed in 
this stuff, might give us a implication of what it means when 
you enter the United States, and what types of rights you might 
have versus citizens. I am certainly not as well versed as she 
on that.
    But at this moment, I would like to recognize the 
gentlewoman from California, Ms. Harman, for her 5 minutes.
    Ms. Harman. Thank you, Madam Chairwoman. Thank you for 
holding this hearing on a subject that is of enormous concern 
to residents of Los Angeles, which holds about 6 percent of the 
detainee population Nation-wide, according to the Department of 
Homeland Security review of detention policy.
    So I appreciate the opportunity to learn more and also to 
think about immigration and illegal immigration again as we 
struggle with this issue.
    I am the daughter of immigrants. My father was an 
immigrant. My mother was the daughter of immigrants. I would 
assume many of our committee Members are, too.
    Immigration makes America strong, as everyone has pointed 
out. Immigration done legally makes America strong. Immigration 
that is illegal is a challenge for America.
    I strongly believe--agree with Mr. Souder and Ms. Sanchez 
that we should enforce our immigration laws. But we should do 
that enforcement in a way that reflects our values.
    As we consider this problem, detention of immigrants who do 
not pose a threat in terms of violent behavior has to respect 
basic human rights and civil liberties. It is a necessity of 
our--of living our values.
    I want to ask you about context. Our committee doesn't have 
jurisdiction over this, but I was and still am a huge proponent 
of comprehensive immigration reform. Several of you mentioned 
that as you testified.
    I want to know whether you think this problem would be 
greatly helped if we could enact a proposal for comprehensive 
immigration reform. I am thinking essentially of the proposal 
that former President George Bush, supported by a large number 
of Members on a bipartisan basis here, was proposing in the 
last term of Congress.
    How much difference would immigration--comprehensive 
immigration reform make to this problem?
    Ms. Nystrom. You are absolutely right. It would make a 
tremendous difference. The most obvious reason for that would 
be if comprehensive immigration reform contains a path to 
citizenship for many of the millions of people who are 
currently here with no valid immigration status, the numbers 
that would need to be in removal proceedings, and therefore 
arguably considered for detention, would be dramatically 
reduced.
    Ms. Harman. Thank you.
    Other comments.
    Mr. Krikorian. Yes. If I could disagree, Congresswoman, 
Michael Chertoff, who was the previous DHS Secretary, estimated 
that 15 to 20 percent of the total illegal population would be 
barred from legalization under the proposals then being 
considered because of various criminal background or other 
matters.
    The fact is that virtually all illegal aliens have 
committed multiple Federal crimes, not just civil violations 
but criminal violations. Crossing the border, obviously, is a 
Federal crime. Signing an I-9 form is perjury. It is a felony 
if it is false information.
    Buying false documents is a Federal crime. Using false 
documents is a Federal crime. Absconding from a court date is a 
Federal crime punishable by up to 10 years in prison.
    So the assertion seems to be that if we redefine the 
illegal immigrants here as legal, then the detention issue, the 
detention problem, will disappear or at least be dramatically 
reduced.
    The fact is a very large portion of the illegal population, 
even under the proposals that President Bush suggested, which 
are essentially the same as whatever it is that Congressman 
Gutierrez or Senator Schumer will come up with--a very large 
portion will not be redefined as legal.
    There is always going to be the further issue of on-going, 
continuing illegal immigration, not just from border crossers 
but from the very large share of the illegal population that is 
people who enter legally on visas and then never leave.
    So the answer, I think, is that to look at a broad 
legalization program as a solution to detention is--I think is 
a mistake. It is actually the other way around.
    Only a very robust detention--and credible detention system 
would be one of the ways to contribute to public--you know, to 
create the credibility that the Government will enforce the 
law.
    Now, honestly, I am against comprehensive immigration 
reform. But the way to do it is through more robust detention, 
among other things.
    Ms. Harman. Well, let me just say that I--as I said 
earlier, I am for enforcement of our immigration laws. I do 
agree with you that there are crimes connected with forging 
documents in--related to one's illegal status.
    However, I think most of these folks are coming here 
seeking a better quality of life for themselves or their 
families. With the economic collapse that we are experiencing, 
there has been a huge decrease in illegal immigration. I don't 
think that is due to detention. I think that is due to 
different economic circumstances.
    I continue to hope that we come up with humane 
comprehensive immigration reform, and I do think it will make a 
difference in terms of the population that we have to detain in 
connection with illegal immigration.
    I would just ask--my time has expired, Madam Chairwoman. 
But if anyone else wanted to comment, I hope you will permit 
that.
    Yes, Mr. Crane.
    Mr. Crane. Yes, ma'am. I would just like to say there is a 
lot of numbers floating around out there about who we actually 
have in custody at ICE, and the--in November the agency 
released the number of 53 percent convicted criminals.
    Now, I can tell you, having worked the CAP program for 5 
years, the majority of individuals that we are incarcerating 
are coming out of county and State jails. They have been 
arrested for extremely serious crimes.
    You know, the booking sheets are coming into us every 
morning. We are picking out the worst ones we can find and we 
are going to the jails and we are looking for the worst of the 
worst. That is our priority.
    We would estimate that potentially 30 to 40 percent of the 
individuals that we are saying are non-criminal actually were 
arrested in criminal charges. The reason most of the time--and 
this is an epidemic problem in the United States right now--
that they are being released to us without convictions is 
because the counties don't have the money to prosecute them and 
hold them.
    So ICE has become a dumping ground for people--their 
problems that they have arrested. So I don't really know if 
reform is really going to be the answer to that problem.
    Secondly, I would say that any time you give someone a 
legal right to be here, along with that comes rights--a lawful 
permanent resident, you know--they can possess marijuana. They 
can get DUIs that--you know, they can do all of these different 
things. It takes away from our ability to enforce the law.
    I am not saying that that is not a solution, that reform 
isn't there, but I just think that we need to consider--I am 
sorry.
    Ms. Harman. Yes. Thank you. My time has just expired, and I 
don't want to abuse my privilege in the committee. I would just 
observe that I am not for anyone breaking laws, but I don't 
think that one of the deterrents to becoming lawful should be 
the fact that if you are lawful you then have some added rights 
to commit crimes in this country. I don't think you do.
    I yield back the balance of my time. Sorry----
    Ms. Sanchez. Thank you, Ms. Harman.
    I am really concerned about something that you said, Mr. 
Crane, that people aren't being prosecuted for alleged crimes. 
But the fact they are not being prosecuted could mean, at least 
under our system, that they actually don't have that crime on 
their record.
    Therefore, you know, it shouldn't--at least the last time I 
checked, it shouldn't count against people. So you know, this 
might be something that we have to look at from a much more 
local level about, you know, how people--how our cities are--
and our counties are actually doing in going after some of 
this.
    Mr. Souder.
    Mr. Souder. If I can, as a supplement, ICE came into my 
district after much pressure and held a meeting with 
prosecutors, judges, and sheriffs to talk about the 
frustrations about how they make decisions on whether they are 
going to come and pick up people in our local jails, of which 
over half were not legal.
    One of the prosecutors made this point, that almost all 
cases anymore are plea bargained, and that she was trying to 
focus her legal cases on domestic violence, and she will--she 
was plea bargaining the other. Plea bargains aren't treated the 
same as convictions. ICE was only going to pick up the people 
with convictions.
    They asked, ``If we get a conviction will you--and spend 
our limited amount of court time on the convictions, will you 
guarantee you will get them, because that means we are going to 
have to plea bargain with the other people in our court 
cases,'' and they said no, they don't have enough resources.
    So even if they had a conviction, they couldn't, and that--
so we have got to get into the--behind the challenge here.
    Ms. Sanchez. I think that is what I was trying to say. We 
have to really take a look at what is going on at the local 
level also.
    I will now recognize, very patiently here, Mr. Cuellar for 
his 5 minutes.
    Mr. Cuellar. Thank you, Madam Chairwoman.
    Thank you for the witnesses for being here. Let me ask you 
about another facet. What about the country of origin that have 
to issue the travel documents to send those individuals?
    There are delays, and I assume some of the--certain 
particular countries are--you know, do a better job of delaying 
having to return those individuals.
    Can any of you all want to talk about those country of 
origins and the delays? Anybody in particular--any particular 
country that stands out?
    Mr. Kerwin. I would be happy to, because we looked at that 
recently. It used to be that, you know, two or three countries 
were responsible for all--you know, the great majority of 
people that didn't get travel documents. It would be Cuba, 
Vietnam, Cambodia and the like, places that we didn't have 
repatriation agreements with.
    Actually, those numbers are way down, and there is not a--
there is not one country that is--you know, has significantly 
more cases than any other. It seems to be more of a dispersed 
issue at this point.
    I mean, that is a big, big issue, and explains, I think, to 
a certain extent, you know, the number of long-term detainees 
after being ordered removed, because they just can't get travel 
documents for them.
    Mr. Cuellar. After a particular time, what happens if a 
country doesn't want to take an individual back? Is that person 
released in the United States?
    Mr. Kerwin. That is what the Supreme Court case is about, 
that after 6 months they have become presumptively eligible for 
release.
    But if the Government is still pursuing and it looks, you 
know, foreseeable that the person can be removed, then they 
would--then they would stay detained under that Supreme Court 
case.
    Mr. Cuellar. Have we had anybody with a criminal record be 
released after those 6 months if a country doesn't take them?
    Mr. Kerwin. I am sure, but I am--I don't know, like, 
specific cases.
    Mr. Cuellar. Mr. Crane, you nodded your head.
    Mr. Crane. Yes, sir. I would say that is happening every 
day, actually, and I can give you a specific case of an 
individual that was convicted of assaulting a police officer in 
our area. He came into custody. He assaulted me, received 13 
months for assaulting a Federal officer.
    He was from Sudan. We were unable to remove him. We had 
to--we were forced to release him, at which time he was 
arrested for rape after that, at which time our supervisors 
told us not to take him into custody again.
    Mr. Cuellar. All right.
    Mr. Crane. So yes, it happens very frequently.
    Mr. Cuellar. Yes, and that is what I understand also, so I 
think that is an issue that we probably have to look at.
    Let me direct my question to the costs and the 
efficiencies. Where are the--most of the detention centers 
held? I mean, I would assume that if they are closer to a 
border, I assume most of them will be going to Mexico, South 
America, Central America.
    Wouldn't you assume that most of those locations should be 
on the border?
    Anybody. Mr. Crane.
    Mr. Crane. I am sorry, sir, are you talking about where 
they are actually going to be held----
    Mr. Cuellar. Yes.
    Mr. Crane [continuing]. Or see an immigration judge?
    Mr. Cuellar. Right, exactly, or the--detained.
    Mr. Crane. You know, sir, that is hard to say, because 
especially when you start mixing the fugitive operations teams 
in, and we are dealing with individuals that we are going to 
release, we have got to have judges in those areas, and we 
really need to have--if we have got some kind of facility there 
locally, that makes it--it facilitates it for those 
individuals.
    Mr. Cuellar. Okay.
    Mr. Kerwin. Dr. Schriro's report actually speaks to that. I 
mean, there is a little bit of a disconnect. Most of them are 
in kind of the southern States, in the border States in 
particular, and there is a little bit of a mismatch between 
detention capacity and demand, but----
    Mr. Cuellar. Dr. Schriro.
    Ms. Schriro. Just more specifically, we overlaid where 
arrests occurred and where capacity was available, and there 
were disparities in some parts of the country, and that largely 
contributes to the transfers.
    So for example, in the northeast, in the mid-Atlantic 
States in particular, there is an acute shortage of bed space 
proportionate to the level of arrests.
    So it is far more likely that if you are apprehended in 
those areas that you are going to--the course had been for some 
period of time that you would go to kind of Pennsylvania Dutch 
Pennsylvania, then down through Mexico, Texas, Louisiana, 
sometimes Florida.
    Speaking to some of the other testimony given previously, 
if you were fortunate to have counsel then, you lose that 
relationship. Where you had community ties or other resources, 
they are not as likely to be available.
    Mr. Cuellar. Okay.
    Last question. Secure Communities initiative--is that 
something that works?
    Mr. Crane.
    Mr. Crane. Sir, I will tell you, we weren't real impressed 
with it. In my area--I was out of the State of Utah--they were 
pulling officers out of our offices to send them down to the 
southern border. We were short-staffed already.
    We had criminals walking out of jails because we couldn't 
work our CAP program. They got down to the southwest border and 
managers said, ``We don't have anything for you to do, just--we 
weren't prepared for this. We didn't know what to do with you. 
Just kind of hang out.''
    Quite honestly, when they went down there, I think they 
were arresting primarily CIS referrals, and they used all of 
those up in about 30 days. After that, we are really not quite 
sure what they were doing. They weren't really making arrests.
    But they certainly could have been making arrests if they 
were back in their respective areas.
    Mr. Cuellar. All right. Thank you.
    Thank you, Madam Chairwoman.
    Ms. Sanchez. Thank you. I thank the gentleman from Texas.
    Now we will hear from the gentleman from--Mr. Pascrell, I 
believe, is next, from New Jersey----
    Mr. Pascrell. Thank you.
    Ms. Sanchez [continuing]. For 5 minutes, recognized.
    Mr. Pascrell. Thank you, Madam Chairwoman.
    First of all, I think that the--as I have said many times, 
the Government has the right to know who is in this country at 
any given time in order to protect the country.
    We have heard from everybody how we need to protect our 
borders. But I think we are spinning our wheels, no question in 
my mind about that.
    When I look at the--if you turn to page 4 in the materials 
that--received, the number of ICE detainees per day, you notice 
there was a 33 percent increase between 2006 and 2007, and then 
a little bit more the next year.
    One must conclude from that that our great, courageous 
Congress and our great, courageous administrations--that is 
when there was discussion about comprehensive health--
comprehensive immigration reform, so this was our response. We 
will show everybody that we are tough.
    Now, we are talking about 33,000 on any given date. Do you 
know what the percentage is of the undocumented folks that are 
in this country? What percentage would that be? A very, very, 
very small percentage.
    I mean, we know the percentages of how many criminals. The 
percentage of criminals that we detain of these 33,000--we are 
hearing that maybe up to 50 percent of them have committed 
multiple criminal acts. Is that what I am hearing from the 
panel?
    Well, what percentage of criminal acts are perpetrated, 
committed, by the 11,960,000 other illegal immigrants that are 
in this country? Are they high-risk as far as crime is 
concerned? This is not the solution to the problem, the 
direction that we are going in, by any stretch of the 
imagination.
    Removing those who don't belong here--do you know how long 
that would take, Mr. Krikorian? How long would that take?
    Mr. Krikorian. Well, we have actually modeled that, and it 
is not just a question of--because the----
    Mr. Pascrell. How long would that take?
    Mr. Krikorian. Our estimate is that in 5 years you could 
cut the illegal population in half.
    Mr. Pascrell. So you----
    Mr. Krikorian. Not by arresting everybody individually, but 
by a combination----
    Mr. Pascrell. But you talked about removing them. You 
didn't just talk about arresting them. You talked about 
removing them.
    Mr. Krikorian. That is a combination----
    Mr. Pascrell. Mr. Krikorian, let me ask you the question 
again. Maybe I didn't make myself clear. How long would it take 
to remove them?
    Mr. Krikorian. We wouldn't have to remove them. The 
question itself is based on a----
    Mr. Pascrell. We wouldn't have to remove them.
    Mr. Krikorian. Because the way immigration enforcement 
works is a combination of forced removal and voluntary--
essentially voluntary self-deportation, because you squeeze 
people out of the country.
    Mr. Pascrell. Well, what you are----
    Mr. Krikorian. It is a combination of both.
    Mr. Pascrell. Excuse me. What you are implying here, Mr. 
Krikorian, is that either we are approaching this in a cavalier 
sense, or we are simply inept.
    Mr. Krikorian. Well, there is probably a lot of that, but 
what specific----
    Mr. Pascrell. Okay. Or is the Government unwilling to 
confront the issue? Is this politically incorrect? What do you 
think?
    Mr. Krikorian. Is what politically incorrect specifically?
    Mr. Pascrell. Part of your documentation you gave a--made a 
presentation here. Removing undocumented aliens.
    Mr. Krikorian. Well, it is something the public wants, and 
it is clearly contentious among both business groups and other 
advocacy groups. So yes, it is politically----
    Mr. Pascrell. Well, maybe the public----
    Mr. Krikorian [continuing]. It is politically incorrect.
    Mr. Pascrell. Maybe the public wants us to deal with the 
subject so that we get beyond the symptoms and find out what 
the problem is so that we can, in some manner, shape, or form, 
not only humanely respond to those that are in the caboose but 
respond to those that are not committing those crimes and not 
being detained.
    Do you think that employers who hire undocumented aliens, 
those who have broken the law multiple times, Mr. Krikorian--do 
you think that employers should be incarcerated and detained as 
well?
    Mr. Krikorian. Absolutely. They should----
    Mr. Pascrell. How would you do that?
    Mr. Krikorian. First, by requiring all new hires to be 
cleared through the E-Verify system, so that then prosecutors 
actually will have a paper trail, which is very difficult now, 
to make a case against them.
    Mr. Pascrell. Do you know how many employers are in jail 
that have hired undocumented aliens?
    Mr. Krikorian. I don't know, but it is very small.
    Mr. Pascrell. How come you don't know that but you know how 
many undocumented aliens are in jail and how many times they 
have committed multiple criminal acts?
    Mr. Krikorian. Because the hearing is about detention of 
illegal----
    Mr. Pascrell. Well, look, you are an expert on it. I am 
not. You know that you--you know the numbers. You were clicking 
off numbers before of how many criminals are out there on the 
loose, inside the caboose, inside the--look. I know the game. I 
know what you are up to.
    Now, most undocumented aliens are not detained. You would 
agree with me?
    Mr. Krikorian. Of course, yes. Absolutely.
    Mr. Pascrell. And most undocumented aliens shouldn't be 
detained.
    Mr. Krikorian. Probably. Well, it depends. I mean, if they 
are in immigration proceedings, yes, they should be, generally 
speaking.
    Mr. Pascrell. Well, according to you, they all broke the 
law since they shouldn't be here in the first place.
    Mr. Krikorian. Well, yes, okay.
    Mr. Pascrell. Let's put 12 million in jail. Let's detain 12 
million. If you don't want to remove them, let's detain them. 
How many jails do we have to build?
    Mr. Krikorian. Congressman, the question is based on a 
false choice. The choice is not between arresting and driving 
out all 12 million illegals tomorrow, like something out of----
    Mr. Pascrell. You tell me what the choice is.
    Mr. Krikorian [continuing]. ``Ten Commandments.''
    Mr. Pascrell. Tell me what the choice is.
    Mr. Krikorian. The other choice being legalization. Those 
are the two--the way it is presented, that it is a sort of 
digital, on/off thing. Everybody is arrested and driven out 
tomorrow, or everybody gets legalized.
    The middle way is what is actually practical, which is you 
detain and deport some portion, significantly more than now, 
but also make it increasingly difficult to live a normal life 
as an illegal alien, both by getting employment, et cetera, so 
that self-deportation, which has already actually happened to a 
significant extent over the past 2 years, picks up and reduces 
the illegal population significantly.
    Mr. Pascrell. Well, my time is up, and I thank you for 
responding to questions.
    May I have a question to Mr. Souder, because he used the--a 
statement before, and I want to know what he means by that, the 
question of----
    Ms. Sanchez. Can a question from Mr. Pascrell----
    Mr. Pascrell [continuing]. And he doesn't have to answer--
you don't have to answer the question.
    What do you mean by high-risk countries? Would you tell me? 
Because I want to write the list down of high-risk countries.
    Mr. Souder. We have a list through the State Department--
Saudi Arabia, Pakistan, Yemen.
    Mr. Pascrell. But there is a number of them, not--they are 
not all in the Middle East. They are not all Muslim countries 
either, are they?
    Mr. Souder. Most of them.
    Mr. Pascrell. Well, is that a good idea or bad idea?
    Mr. Souder. That they are----
    Mr. Pascrell. In other words, we are profiling countries 
now.
    Mr. Souder. Yes.
    Mr. Pascrell. You think we should do that?
    Mr. Souder. We always have. We always have.
    Mr. Pascrell. You don't believe that is a stigma on the 
people who come here legitimately from those countries?
    Mr. Souder. I believe that law enforcement should be based 
on real risk.
    Mr. Pascrell. I am sorry?
    Mr. Souder. I believe law enforcement should be based on 
real risk.
    Mr. Pascrell. Well, what is risk in your mind?
    Mr. Souder [continuing]. Where the terrorists are coming 
from.
    Mr. Pascrell. Where the terrorists are----
    Mr. Souder. Where the people on the watch lists are coming 
from, where the highest risk--I mean, they have to have some 
sort of a sorting system that--in detaining, and that is why 
every border crossing can tell you how many people came from 
high-risk countries that are on the State Department list.
    That is why Congress always votes for this list.
    Mr. Pascrell. Well, I think if you have a reason----
    Mr. Souder [continuing]. Whether we give foreign aid to 
those countries, whether we provide military weapons to those 
countries. That is judgmental.
    Mr. Pascrell. Risk----
    Mr. Souder. Why would we not give--why would we not give 
certain weapons to countries that are--that apply for them? It 
is because they are higher risk. That is a judgment.
    Mr. Pascrell. Well, maybe we shouldn't give weapons to 
anybody.
    Mr. Souder. I tend to believe people who are on our side 
should get weapon systems.
    Mr. Pascrell. Oh, you do.
    Mr. Souder. I believe Israel should get assistance, yes.
    Ms. Sanchez. I think that might be a debate on the House 
floor in International Relations Committee. I might just add 
that it is a difficult thing to see happen.
    For example, I have a sister-in-law who is French--great 
French family. When France was in Algeria, she was born there 
to that family. Her passport carries ``born in Algeria.''
    She has no real connection to the population there, in a 
sense, and yet, you know, she is of a country of particular 
interest and gets stopped, and has questions asked, and gets 
detained quite a bit, even though there is really not that 
connection there, but----
    Mr. Pascrell. But she is a suspect before the fact.
    Ms. Sanchez. That is what I am saying.
    Mr. Pascrell. Right.
    Ms. Sanchez. That is what I am saying.
    Mr. Pascrell. We shouldn't be doing these kinds of----
    Ms. Sanchez. Well, but----
    Mr. Pascrell [continuing]. Stupid things.
    Ms. Sanchez [continuing]. That is not really an issue of 
this committee, unfortunately, Mr. Pascrell.
    Mr. Pascrell. Well, it has something to do with who we 
detain. I believe it does. Unless we see this gestalt here, we 
are never going to get to the--we never get beyond the 
symptoms, is the point I am trying to make. I----
    Ms. Sanchez. Well, we deal with the symptoms here. 
Unfortunately, the policy of that is made in International 
Relations and it is made in, most likely, the Judiciary 
Committee, as you know. We have not as broad of a place to 
attack those types of issues on this committee, although we try 
sometimes. Okay.
    Very patiently, Mr. Green for his 5 minutes. Thank you to 
the gentleman from Texas for being here.
    Mr. Green. Thank you, Madam Chairwoman.
    Madam Chairwoman, the first time I read Dred Scott, I had 
tears to well in my eyes, because when I read the case I 
realized that it was the intelligentsia that perpetuated the 
circumstance.
    It is really not the ignorant, the--those with a lack of 
understanding, that can perpetuate inhumanity. The 
intelligentsia gets the job done. The others follow.
    I marvel at how we live by the notion that we should be our 
brother's keeper until we have to keep our brother. You know, 
it is easy to be your brother's keeper when you don't have to 
keep your brother, when your brother doesn't really need you, 
when your brother has all of the good things that life can 
offer.
    But when your brother is suffering, needs health care, when 
your brother is without employment, that is when you really 
find out who is a keeper of the brother.
    I, like some of my colleagues, find it very difficult to 
understand how we can believe that we can deport the millions 
who are here, many of whom, by the way, are not from Mexico.
    Does everyone agree that we have somewhere between 12 and 
20 million here? If you differ, raise your hand, please.
    All right, so what is your number?
    Mr. Krikorian. We have slightly under 11 million illegal 
immigrants, based on our research.
    Mr. Green. All right. Let's take 11 million. Eleven million 
people, by some standards all of whom committed crimes because 
they are here--by the way, I think that criminals ought to be 
prosecuted. All criminals ought to be prosecuted. You commit a 
crime, you ought to be prosecuted.
    Do you have, aside from the one person who has a model--is 
there other empirical evidence connoting that what we are doing 
is acting as a deterrent, what we are doing currently? If you 
have empirical evidence, kindly raise your hand.
    I have considered your empirical evidence. You said you had 
a model.
    Ms. Nystrom. Congressman, I would like to submit that we 
cannot enforce our way out of the current situation, that we 
need to have comprehensive immigration reform to really get at 
the problem, and that there is no feasible model to detain and 
deport the 11 to 20 million undocumented immigrants currently 
in our country.
    Mr. Krikorian. But, Congressman, could I point out that 
there is another metric of success----
    Mr. Green. Well, let me hear about that at a later time. 
Let me continue, if I may, please. I appreciate your 
commentary, sir, and I don't mean to be rude, crude, and 
unrefined, but I have to get to a point.
    My point is at a much more lofty level than we find 
ourselves having to negotiate today. I sincerely believe that 
at some point on the infinite continuum that we call time, we 
are all going to have to account for our time.
    I think that at that moment we are going to have to explain 
how we treated people who meant us no harm, who were here by an 
informal invitation, who were the servants. They fed us. They 
took care of us. There is no harm, and we found every--well, 
not every, but a good many means by which we could demean them 
and dehumanize them.
    Our complicity is somehow completely disregarded in the 
entire process. When I say ``our,'' I am talking about every 
business person that hires someone, those of us who have had 
persons come into our homes, those of us who have had persons 
to manicure our yards. We are all complicitous.
    When you don't have clean hands, and you reach that point 
on the infinite continuum, I think the day of reckoning is in 
store for all of us. I regret that the intelligentsia finds--
continually finds a means by which we can justify the ill 
treatment of people who mean us no harm.
    I yield back the balance of my time, and I just hope that 
this time has been well spent.
    Thank you, Madam Chairwoman.
    Ms. Sanchez. Thank you, Mr. Green.
    As we wrap up, because we are going to have votes called 
any moment also, I am going to have some more questions for the 
record that I would really like to get the opinions across the 
board from all of you on.
    But I sort of am--you know, the numbers--and of course, 
Doctor, I am very interested in your report, because it is--
lays out a way forward that the Department of Homeland is 
looking at. That is why we will have another hearing in the new 
year, to look at what they have to say in particular.
    But I want to go back to Mr. Crane.
    Mr. Crane, do you believe in the doctrine of presumed 
innocent until proven guilty? It is a very American doctrine.
    Mr. Crane. Yes, ma'am, I do.
    Ms. Sanchez. Because we have just seen, for example, a 
young American woman in the Italian system where the system is 
really you have to prove yourself out of a situation you are 
accused of.
    I am a little bit worried about this whole issue of locals 
and counties arresting people for alleged crimes and not having 
the resources, and so allowing them out, if you will, and 
then--and this sort of disconnect that is going on between some 
of you on the panel about what we really have in detention 
centers.
    Because I think Mr. Kerwin said dangerous to others, about 
11 percent.
    Then you said some are refugees, some are in some sort of 
residency, some may be even citizens.
    Ms. Nystrom, you said why shackles and--or one of the two 
of you--why shackles and--you know, this type of thing.
    More open types of holding places, Doctor.
    Mr. Crane coming back to this is so dangerous to our--to us 
working in that environment, because there is, you know, so 
many criminals there--you know, so I go back to this whole 
thing--well, I would be--I would like to be presumed innocent 
until proven before a court, whether it is jury or some other 
choice, that I am--that I am guilty.
    So how do we--Mr. Crane, how do you, as somebody who is 
working in the system, who from your testimony seemed to say, 
``We are fearful of everybody, really, because we think most of 
them are criminals,'' versus this whole ``people are presumed 
innocent,'' versus what Mr. Kerwin and Ms. Nystrom are saying, 
which is there is a lot of innocent people in this system, 
maybe the only thing they did was break a law because they 
wanted to feed their families--how do you react to that?
    Mr. Crane. I think, for our part, we are just--we are in a 
hard spot, because we absolutely do see that a person is 
proven--you know, is innocent until proven guilty.
    But at the same time, we see that the system is broken, 
that the system isn't working, that these individuals are not 
going in front of a court of law, and they are not really being 
cleared of those charges at the same time and, you know, so now 
they are in our facilities. So I mean, that is the hard part 
for us.
    Now, if I I said earlier that we were kind of fearful of 
everyone, I didn't really mean to say that. The biggest thing 
on the facilities that we were saying is that ICE is proposing 
to go to 85 to 90 percent convicted criminals in custody within 
the next 12 months.
    At the same time, they are going to turn these facilities 
into an open-campus environment. Yes, that does concern us very 
much.
    Ms. Sanchez. Doctor, is that the plan, or is the plan about 
open facilities about these people who you think are--have 
broken the rules because they were looking to get jobs, versus 
this idea of ICE is barreling down on people, we are getting 
the really, really bad people, we are ramming them up?
    Do you really see those type of people going into a more 
open sort of situation? Because that seems to be Mr. Crane's 
concern here.
    Ms. Schriro. Madam Chairwoman, I can--I could speak to my 
report but have left ICE, and so I will defer to them to 
explain some of the things that Mr. Crane has referenced.
    But in general, as Mr. Kerwin and others have referenced 
data from my report, right now the primary contributors, the 
sources of referral for individuals into ICE detention, have 
been first the CAP program--48 percent in this fiscal year of 
2009 through the time of the writing of the report--and then an 
additional 12 percent through the 287(g) program. So that was 
60 percent.
    Yet some number of them did not have criminal convictions 
or pleas. I don't think there is much of a distinction between 
whether you are pled or proven. Once you are found or admit 
guilt and receive a sentence, it is all the same.
    So you have got a number of people who are identified 
through the criminal justice system by virtue of an arrest but 
charges are dropped for a variety of reasons. I think Mr. Crane 
offers but one explanation for why charges are dropped and then 
individuals are referred to ICE.
    Part of that goes back to my concern about all in 
enforcement who contact individuals should be able to--should 
identify themselves prior to the exchange, thus the requirement 
for the uniforms.
    As to the management of the population, what I have said 
consistently--and it comports with a variety of disciplines, 
including the corrections arena from which I come--and that is 
that there are valid assessment instruments and that one 
applies them correctly.
    Then having identified an individual risk, either risk of 
absconding if they are placed on community supervision, or risk 
in terms of propensity for violence if they are held in a 
detention facility, that that, in concert with their assessed 
needs, particularly health care but others as well--that those 
would inform the placement.
    So the physical plant is one of the ways in which you carry 
out the plan for the period of detention pending the decision 
for either relief or for removal.
    So in correctional systems, there are a variety of housing 
strategies and supervision strategies that are established, and 
in well-run systems they are consistent with that assessed need 
and risk.
    Ms. Sanchez. Thank you, Doctor.
    Mr. Souder. Can I make one brief comment?
    Ms. Sanchez. Yes.
    Mr. Souder. One brief comment I would like to add is some 
of this isn't as contradictory as it seems because of what I 
referred to earlier as is ICE is indeed trying to, in my 
opinion, cherry-pick, which is distorting and will increasingly 
distort the mix that they have.
    Mr. Krikorian was referring to a broader pool, and one of 
the challenges that Mr. Pascrell was addressing was if we 
actually get E-Verify, we start to remove, do penalties on 
business men, we are going to get a different mix of the ICE 
mix, but then you would need--you know, we are still arguing 
whether we detain those, or whatever.
    The last point I would--I would make with that is that visa 
overstays are becoming a bigger, bigger problem.
    People say they are in legally and, in fact, if you have 
visa overstayed, as Mr. Krikorian pointed out, you probably 
have driver license, bank accounts, all sorts of other illegal 
activities with that, too.
    This does not mean you are violent, but that you might have 
multiple crimes.
    Ms. Sanchez. Of course, that is one of the reasons why we 
are looking at that new assessment program, and Visa Waiver 
Program, et cetera, et cetera, also under the jurisdiction of 
this committee.
    I am sure we will have more in writing to ask you.
    Mr. Souder. Before my friend leaves, this is the only 
hearing where I have asked two rounds of questions and been a 
witness----
    Ms. Sanchez. Well, you know, we aim to please here. We are 
trying very hard to get our hands around what is going on.
    So I want to thank the witnesses for your valuable 
testimony and, of course, the Members for their interaction, 
very spirited at times.
    The Members of the subcommittee may have additional 
questions for the witnesses, and we will ask you to respond in 
writing to those questions quickly if you can.
    Hearing no further business, this subcommittee is 
adjourned.
    [Whereupon, at 11:48 a.m., the subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              

       Questions From Chairwoman Loretta Sanchez for Dora Schriro
    Question 1a. The detention report ICE released this October is the 
result of extensive research you conducted on the current state of 
immigration detention in this country during your time as director of 
the ICE Office of Detention Policy and Planning.
    Are there additional challenges, not mentioned in the report, that 
also need to be addressed and what are your recommendations for dealing 
with those issues?
    Answer. Response was not received at the time of publication.
    Question 1b. What areas will pose the greatest challenges for 
detention reform?
    Answer. Response was not received at the time of publication.
    Question 2. One of the key detention reforms announced is the move 
from a criminal detention model to a civil detention model.
    Please expand on the differences between criminal and civil 
detention models and why immigration detention facilities should be run 
differently than the current penal system?
    Answer. Response was not received at the time of publication.
    Question 3. There is concern that a civil detention model might be 
too ``soft'' and not sufficiently secure or may fail to act as a 
deterrent for would-be detainees.
    What is your response to these criticisms?
    Answer. Response was not received at the time of publication.
      Questions From Chairman Bennie G. Thompson for Dora Schriro
    Question 1a. The current immigration detention system is a 
sprawling network, with contract and intergovernmental service 
agreements composing the majority.
    Are the contract detention facilities currently capable of meeting 
the proposed standards of treatment for non-criminal detainees?
    Answer. Response was not received at the time of publication.
    Question 1b. What do the announced changes to detention policy mean 
for current contractors?
    Answer. Response was not received at the time of publication.
   Questions From Chairwoman Loretta Sanchez for Christopher L. Crane
    Question 1a. Your testimony and published reports mention that 
written guidance to field offices is limited.
    How does Detention and Removal (DRO) staff stay abreast of changes 
in policy and procedures made by ICE headquarters?
    Answer. In most cases, DRO staff is not aware of the majority of 
agency policies and procedures and/or the associated changes. In fact, 
policies and procedures are generally different from office to office, 
and often change from day to day. Generally speaking, this begins with 
poorly thought-out policies at the ICE Headquarters and Field Office 
levels, which lack much-needed input from the field. Poorly planned 
policies not only fail quickly in the field once implemented, but also 
create new problems that did not previously exist. ICE Headquarters and 
Field Office supervisors are then reluctant to admit failure and are 
insistent on staying the course with newly implemented policies and 
procedures. It is then left to DRO staff and managers in the field to 
overcome the obstacles created by the failed policies. In some cases, 
problems become so prevalent that policy makers are forced to make 
changes. Unfortunately, these changes also lack input from the field, 
and typically fail as well. At this point, in a frantic attempt to 
resolve problems, a reactionary cycle of day-to-day changes occurs. DRO 
Staff in the field is literally directed to perform the same duties 
differently on a day-to-day basis, often returning to the same failed 
procedures they started with. Throughout this process there is a 
complete lack of communications with and/or training for staff on these 
new policies and procedural changes. The end result is the very 
chaotic, stressful, and often unproductive environment that DRO 
employees work in every day--just one of many reasons why employee 
surveys conducted by ICE confirm that the morale of DRO employees ranks 
as one of the lowest of all Federal agencies.
    However, most policies and changes involve no interaction between 
DRO staff and DRO managers and supervisors. ICE Headquarters, as well 
as ICE Field Office supervisors and ICE Employee Labor Relations staff, 
rely almost solely on email and website postings for all communications 
with employees. Sadly, both managers and supervisors are fully aware 
that DRO staff lack the time while at work to read the large number of 
daily emails, lengthy policies, or browse through the ICE website in 
search of ICE policies. ICE has a ``check the box'' management style in 
which the only concern is to be able to say that ``yes'' the employees 
were sent the policy or changes and can now be held accountable for not 
following them. ICE managers and supervisors, for the most part, do not 
conduct training, allow for questions, or make sure time is available 
for DRO staff to read new policies, and overall do not ensure that 
policies are read or understood by employees. With all due respect to 
ICE managers and supervisors, it is a truly lazy and negligent way to 
conduct operations, which results in not only ineffective communication 
but also a significant lack of knowledge regarding ICE policies by DRO 
employees in the field.
    Question 1b. What would you suggest to improve communication of 
changes to policy with staff in the field?
    Answer. ICE needs to begin by returning to the basics of good 
management. ICE needs to ensure that ICE managers and staff in the 
field receive proper training on new policies and procedural changes, 
have an opportunity to ask questions, and truly understand new policies 
and procedural changes. Time must be allotted to properly train and 
educate employees. It is an investment in our most important asset, 
Human Resources, as well as the agency itself. If conducted properly, 
these types of briefings or classes at local offices and facilities 
could greatly increase understanding and awareness by DRO staff and 
managers in AFGE National Council 118--ICE, Inquiry by the U.S. House 
of Representatives, Committee on Homeland Security the field. We need 
our managers and supervisors to come out of their offices, communicate 
with and listen to employees, and manage from a more informed position. 
Of course, briefings and classes held at local offices would create 
little if any additional expense to the agency.
    The Union also has a very important part to play in communications 
between DRO managers and DRO staff regarding policy and procedural 
changes. That communication should begin at the policy development 
stage and continue through employee education. This would improve not 
only education and understanding, but dramatically improve the quality 
of policies and morale in the field. Unfortunately, DRO managers and 
Employee Labor Relations staff are strongly anti-union, anti-employee 
rights, and harass anyone involved in the Union, sending a chilling 
effect throughout the workforce. A letter outlining these problems was 
sent to DHS Secretary Janet Napolitano and given to ICE Assistant 
Secretary John Morton almost 1 year ago. Those reports have been 
ignored. The Office of Inspector General or other outside investigative 
group such as the General Accountability Office (GAO) must be brought 
in to investigate and report on this situation. As long as the 
oversight is retained internally, both at ICE and at the Departmental 
level, no progress will be realized and ICE will continue on its 
present course.
    Question 2a. It is apparent that ICE has come to rely heavily on 
contractors for bedspace and to administer its detention program.
    Are Contract Detention Facilities and Intergovernmental Service 
Agreement facilities held to the same standards as ICE-run facilities?
    Answer. Policy-wise yes, but in practice no. DRO officers in the 
field report that while the same detention standards apply to Contract 
Detention Facilities and ICE-run facilities, they are often applied 
differently in the case of Contract Detention Facilities. DRO officers 
report that contract staff and managers in Contact Detention Facilities 
are less likely to report standards violations than are ICE employees 
in ICE-run facilities, stating that contractors are often more 
concerned that exposing the violations could potentially mean the loss 
of the ICE contract. Similarly, DRO officers report that ICE managers 
are more inclined to ``make violations go away'' in contract facilities 
because they are dependent on the facility for bedspace and don't want 
to lose the contracted facility. DRO managers seem more willing to 
address problems in ICE facilities because they have more authority 
with ICE employees and are less concerned that an ICE facility might be 
shut down due to standards violations.
    Intergovernmental Service Agreement facilities (IGSAs) are a much 
more complex issue, in part because there are so many and the 
facilities themselves vary greatly. My personal background has been 
working in and with the IGSA facilities. Generally speaking, problems 
sometimes do exist in the IGSAs in terms of detention standards. The 
most prevalent are standards involving access to legal libraries and 
other issues such as phone calls. As with the contract facilities, I 
believe ICE managers are often reluctant to report standards violations 
because they are afraid to lose the bedspace. However, I have observed 
a larger problem with ICE managers who simply ignore standards 
violations in the IGSAs because there is no real oversight or 
accountability. Basically, they can get away with and they know it. 
Another major issue preventing progress in the IGSAs with improving 
standards are the DRO supervisors and contract inspectors who actually 
visit the IGSAs. Deputies working in an IGSA in my area reported that 
their supervisors were furious when ICE managers came into a meeting 
with jail staff ``barking orders,'' instead of diplomatically and 
respectfully seeking a resolution to problems. That IGSA subsequently 
refused to work with ICE. Contact inspection teams had a similar 
disrespectful and authoritative approach in which AFGE National Council 
118--ICE, Inquiry by the U.S. House of Representatives, Committee on 
Homeland Security IGSAs have responded by telling ICE to take its 
business elsewhere instead of improving standards for ICE detainees.
    I would like to close this answer by saying that the majority of 
IGSAs, in my experience, are quality facilities with quality staffs and 
effective oversight. IGSA staff members are generally deputies who have 
been through rigorous background checks and are very well trained--much 
like DRO officers and agents. While there are certainly some bad IGSAs, 
there are a lot more that are highly efficient facilities. ICE has 
largely been at fault for not nurturing relationships with the IGSAs 
and attempting to resolve and remove standards violations, as well as 
discontinuing the use of IGSAs that are problematic. For most ICE 
offices across the United States, prohibiting or greatly restricting 
the use of IGSAs will have a very negative impact on ICE and its 
ability to perform its mission.
    Question 2b. What services or advantages do contractors provide 
that ICE does not?
    Answer. I am not aware of any services provided by contractors that 
ICE is unable to provide. The only advantage offered by contractors is 
the ability to hire large numbers of employees to work in these 
facilities in a very short period of time. However, this advantage has 
proven to be more of a disadvantage as this quick and easy workforce 
has proven to be both dangerous and untrustworthy. As just one example, 
contractors at the Northwest Detention Center in Tacoma, Washington 
hired 97 contract guards without conducting background checks because 
of pressure to quickly hire guards for the facility. ICE did not catch 
the process for 2 years.
    As I stated in my earlier testimony, ICE does not have a 
``Detention Officer'' position. However, the Legacy INS did have a 
position called a Detention Enforcement Officer which ended shortly 
after ICE was created. This position did not have immigration arrest 
authority and was specifically designed to perform the detention and 
transportation functions currently needed by ICE. This position could 
easily be brought back into use by ICE.
    Question 2c. What services currently provided by a contractor could 
be better provided by ICE?
    Answer. I believe that just about any service could be better 
provided by ICE employees. The only exceptions to this might be 
services such as food services. Detention functions such as overseeing 
detainees, transportation functions, and maintaining detainee property 
would all most certainly be handled far more efficiently by ICE 
employees. Also, all administrative and support functions such as 
training assistants, research, data entry and records checks, travel 
clerks, and information technology personnel, etc. As just one example, 
contract clerks do not have the detailed professional knowledge that 
ICE Detention and Removal Assistants possess. Contract clerks do not 
know how to use ICE database systems, nor do they have the ability to 
review and differentiate between cases, or identify problems that may 
require immediate attention by ICE officers and mangers.
    Before being hired, ICE employees must meet high qualification 
standards regarding educational background and work experience and are 
thoroughly screened through examination as well as extensive background 
investigations. Typically, out of hundreds or even thousands of 
applicants Nation-wide, only a few will be selected for hiring. While 
this process may be somewhat time-intensive, it produces a far more 
qualified employee and diversified workforce than does the far less 
extensive hiring process used by contractors. Criminal and financial 
background investigations conducted prior to the hiring of ICE 
employees make it far less likely that ICE employees would be involved 
in issues currently prevalent AFGE National Council 118)--ICE, Inquiry 
by the U.S. House of Representatives, Committee on Homeland Security 
among contractors conducting ICE work such as smuggling contraband, 
drug distribution, fraud, theft, and sexual misconduct. I addressed 
this problem in greater detail in my original written testimony on 
December 10, 2009.
    As long as hiring standards for ICE employees are maintained, ICE 
DRO employees will always provide far superior services than contract 
employees.
  Questions From Chairman Bennie G. Thompson for Christopher L. Crane
    Question 1a. In your testimony, you stated Detention and Removal 
Operations (DRO) is ``drastically understaffed and overworked,'' and 
that these conditions contribute to attrition.
    Please elaborate on the reasons for attrition at DRO.
    Answer. Surveys consistently show that the morale of ICE employees 
ranks among the lowest of all the Federal agencies. ICE offices and 
facilities are generally drastically understaffed. In spite of this 
fact, ICE DRO managers continue to increase the workload, duties, and 
responsibilities of DRO employees. At the same time, ICE employees are 
among the lowest paid within DHS. As reported during my testimony on 
December 10, 2009, Detention Removal Assistants (DRAs) and Immigration 
Enforcement Agents (IEAs) hold only GS-7 and GS-9 pay grades 
respectively, and have no promotion ladder to higher level positions. 
While higher paying positions do exist within ICE, most DRO employees 
view ICE DRO hiring and promotional practices as lacking credibility 
and untrustworthy. For this reason, two of the largest employee groups 
within ICE (DRAs and IEAs), do not consider their jobs to be 
``careers'' because advancement to higher-paying positions does not 
exist in the form of career ladders or through an open and fair 
internal application process where selections are based upon merit. The 
majority of ICE employees are always open to or looking for 
opportunities in other agencies which allow better working conditions 
and quality of life, as well as higher pay and career advancement.
    Employee workload is a big problem within ICE which I believe can 
best be illustrated through example. The Illegal Immigration Reform and 
Immigration Responsibility Act of 1996 mandated that the Criminal Alien 
Program (CAP) be transferred internally from the INS (now ICE) Office 
of Investigations to DRO. When this transfer had not occurred by 2003, 
a 10-year implementation plan was established. Former ICE Assistant 
Secretary Julie Myers reduced that time to just 2 years. In Salt Lake 
City, Utah, the DRO Field Office director mandated that his office 
would take over CAP 6 months prior to the 2-year mandate set by A.S. 
Meyers.
    When Utah DRO took over the CAP program, it was drastically 
understaffed with approximately 7-8 IEAs State-wide. These same 
employees were already performing other full-time duties. As part of 
the 2-year ``transition plan,'' DRO Utah received no training, no 
increase in personnel (IEAs) to perform the new CAP duties, and did no 
transition with the ICE Office of Investigations. In effect, there was 
no planning and no transition. The existing IEAs were immediately 
unable to handle the increased workload. Complaints from local jails 
came pouring in that ICE was not doing its job and that dangerous 
criminals were being released into Utah communities. As a result, DRO 
managers immediately put pressure on IEAs and their managers to 
increase CAP arrests. Some IEAs resorted to performing their regular 
duties during the day, and spending nights and weekends working local 
jails for CAP to increase arrest statistics. To make matters worse, the 
Field Office Director announced plans to implement a 24-hour command 
center in Salt Lake City which would also be manned by the 3 to 4 IEAs 
in Salt Lake City who were already working around the clock. The 
mandates set by both ICE Headquarters and the Field Office Director 
lacked proper planning and resources which resulted in obvious failures 
in the field and unbearable working conditions for DRO employees. Yet 
in ICE's internal newsletter, ICE victoriously proclaimed, ``CAP 
TRANSFER COMPLETED IN RECORD TIME.'' The statement is accurate; it was 
completed in record time, but what ICE failed to admit was that it was 
a complete failure in many areas because of lack of planning and 
allocation of proper human resources. Utah DRO offices still suffer 
from the negative effects of this poorly planned implementation.
    Unfortunately, this is the manner in which ICE conducts business 
Nation-wide. New programs and policies are implemented without proper 
planning and without obtaining needed resources first. Managers do not 
hold themselves accountable, but instead place the burden on their 
employees. Initiatives like the Secure Communities program, for 
example, already promise similar problems for our already overworked 
and understaffed workforce. ICE's management practices are in need of 
serious review. Obviously, no person wants to work around the clock in 
these types of conditions and that will affect attrition, but in a big 
picture sense, if DRO does not have the staff to effectively perform 
its assigned mission, American communities are placed at risk.
    Question 1b. How does ICE recruit and retain staff? What can be 
done to improve these efforts?
    Answer. I am not aware of any efforts by ICE to recruit or retain 
staff in ICE DRO. If it is happening, I have never personally seen it 
used in the field, and the AFGE ICE Council is not aware of it. The 
management culture within ICE does not appear to appreciate or 
understand the significant amount of taxpayer dollars spent to screen 
and train Federal employees. As just one example, I have personally 
heard ICE supervisors in my own office (DRO Salt Lake City) tell 
employees, ``if you don't like it, leave.'' These remarks are made by 
DRO managers to good employees who the agency desperately needs in its 
understaffed offices. At the time these statements were made, I believe 
our office was at approximately a 40 percent staffing level. As a 
National Union officer, it is my opinion that this appears to be the 
overall attitude toward employee retention throughout ICE DRO and ICE 
Employee Labor Relations. The DRO management culture, in large part, 
views employees as expendable and replaceable. As a Union, and as 
employees, we know that simply is not the case.
    In terms of recruiting and retention, ICE DRO must achieve pay 
parity for its employees and create career ladders that offer career 
advancement. ICE currently cannot compete with other agencies at either 
recruiting new employees or retaining current ones. ICE must also 
invest in local recruiting programs so that ICE has a presence at local 
job fairs and similar functions aimed at attracting and recruiting 
highly qualified candidates. With actions like the recent upgrading of 
50,000 officers in Customs and Border Protection to GS-12, the worst of 
ICE's recruitment and retention problems are yet to come.
    In terms of retention alone, staffing numbers must be increased, 
promotional practices must be reformed to ensure promotions are based 
on merit, and working conditions must be improved. The American public 
would be highly disappointed if they knew of the activities taking 
place within ICE. As employees, Union representatives, and taxpaying 
U.S. Citizens, DRO employees are always shocked to see that funding and 
outside groups are provided to research, investigate, and address 
issues like detention reform, but a similar investment is not made in 
researching problems like discrimination, harassment, retaliation, lack 
of oversight, and abuse of authority, which negatively impact every 
function performed by ICE. As long as DHS and ICE ignore these 
problems, morale will suffer and DRO employees will be seeking a better 
place to work.
    Stories of harassment, retaliation, and overall inappropriate 
behavior by managers and supervisors with the Federal Air Marshal 
Service surfaced in the media this week. Reporters, members of the 
public, and members of the United States Congress are expressing 
concern as they recognize the negative effects that these activities 
have on the agency's ability to accomplish its mission. It should not 
be forgotten that the Federal Air Marshal Service was a part of ICE, 
and therefore its supervisors came from the ICE management culture. ICE 
DRO and its employees are struggling with the same problems now being 
experienced by the Federal Air Marshal Service. For DRO employees, 
harassment, retaliation, false investigations of employees, and 
practices by managers that place the public at risk are commonplace.
    Question 2a. Given the rate of staff turnover at ICE Detention and 
Removal, please describe the present DRO workforce.
    How many years of experience on average does a Detention Officer or 
Immigration Enforcement Agent possess?
    Answer. Mr. Chairman, I apologize but I do not have access to this 
information. However, it should be available from the Human Capital 
Officer of ICE.
    Question 2b. What are the implications for detention management?
    Answer. Even the best policies and/or legislation regarding 
detention management will not succeed if reforms are not made within 
ICE. While effective policies are certainly an important part of 
efficient detention management, it is the personnel conducting the work 
who truly determine its success or failure. Policy and standards 
violations by contract workers have substantiated this fact. If issues 
regarding pay parity, understaffing, poor management, and hostile 
working conditions persist within ICE, more employees will be leaving 
ICE and the ability to recruit quality personnel will continue to 
decline. ICE will then in all probability be forced to maintain and 
possibly increase its dependence on contract workers who have proven 
themselves detrimental to a safe, efficient, and ethical detention 
setting within ICE.
    The detention environment, by its very nature, will always provide 
opportunities for those that would take advantage of others. Likewise, 
it is an environment in which inadequate staffing translates to 
inadequate attention to those entrusted to our care. Effective 
detention management within ICE will rely more on the quality and 
quantity of staffing than any other factors. Therefore, it is 
imperative and in the best interest of the American public, that 
contractor personnel are reduced or eliminated and ICE retain its own 
workforce to manage this most important responsibility.
    As previously stated, however, in order to recruit and retain a 
quality workforce, ICE must first determine the level of human 
resources needed to manage these initiatives and then must compensate 
its employees so that the pay scales are comparable to other DHS 
bureaus. Until ICE acknowledges this disparity and corrects it, it will 
be impossible to efficiently manage these responsibilities and will be 
forced to continue to rely on contractor personnel.
  Questions From Chairwoman Loretta Sanchez for Donald M. Kerwin, Jr.
    Question 1a. Given the high cost of maintaining and running 
detention facilities, there is great interest in the development of a 
robust Alternatives-to-Detention (ATD) program.
    Do you have any estimates on the difference in costs between the 
cost of enrolling an individual in one of the three current ATD 
programs and the cost of housing an individual in a detention facility?
    Answer. In July 2009, Dora Schriro, the former Director of the 
Office of Detention Policy and Planning (ODDP) at Immigration and 
Customs Enforcement (ICE), reported to the Migration Policy Institute 
(MPI) that ICE does not collect ``complete and accurate information'' 
that would allow the agency to assess the cost of its three 
alternative-to-detention (ATD) programs.\1\ Nonetheless, in the same 
letter, ICE estimated the contract costs for the three ATD programs to 
be:
---------------------------------------------------------------------------
    \1\ Letter from Dora Schriro, Special Advisor, Office of the 
Assistant Secretary, U.S. Immigration and Customs Enforcement, to 
Donald Kerwin, Vice President for Programs, Migration Policy Institute 
(received July 2, 2009).
---------------------------------------------------------------------------
   Intensive Supervision Appearance Program (ISAP) $14.42 per 
        day;
   Enhanced Supervision Reporting Program (ESR) $8.52 per day; 
        and
   Electronic Monitoring Program (EM) 30 cents to $5 per day, 
        depending on the technology used.
    These costs do not include expenses such as Detention and Removal 
Operations staff time and Fugitive Operation Team activities.
    By way of contrast, housing an individual in a ``hard'' detention 
facility can cost in excess of $100 per day.\2\
---------------------------------------------------------------------------
    \2\ U.S. Department of Homeland Security (DHS), ``ICE Detention 
Reform: Principles and Next Steps'' (Fact Sheet, October 6, 2009), 
http://www.dhs.gov/xlibrary/assets/
press_ice_detention_reform_fact_sheet.pdf.
---------------------------------------------------------------------------
    In a January 25, 2010 speech at an MPI leadership forum, ICE 
Assistant Secretary John Morton stressed that ATD costs can be further 
limited by processing the removal cases of program participants on an 
expedited basis. Morton stated that ideally, these cases would be fast-
tracked in immigration court dockets and heard within 40 to 60 days.\3\
---------------------------------------------------------------------------
    \3\ C-SPAN Video Library, ``Obama Administration Immigration and 
Customs Policy,'' (speech delivered by ICE Assistant Secretary John 
Morton at the Migration Policy Institute, Washington, DC, January 25, 
2010), min. 54-59, http://www.c-spanvideo.org/program/291598-1.
---------------------------------------------------------------------------
    Dr. Schriro made the same point in her October 2009 report titled 
``Immigration Detention Overview and Recommendations.''\4\ Schriro 
recommended that ``the average length of time an alien spends in an ATD 
program should be monitored to ensure it is comparable to aliens who 
are detained, in order to maximize the number of successful completions 
and reduce overall spending.''\5\
---------------------------------------------------------------------------
    \4\ Dr. Dora Schriro, Immigration and Detention Overview and 
Recommendations (Washington, DC: Immigration and Customs Enforcement, 
October 6, 2009), http://www.ice.gov/doclib/
091005_ice_detention_report-final.pdf.
    \5\ Schriro, Immigration and Detention Overview and 
Recommendations, 20-21.
---------------------------------------------------------------------------
    Question 1b. Beyond the three ATD programs, are there other 
programs that you can recommend that would be more cost-effective?
    Answer. A number of cost-effective ATD programs were developed and 
tested by non-governmental organizations in the 1990s. Successful ATD 
programs:
   Enjoy high levels of program compliance;
   Offer a cost-effective alternative to hard detention;
   Utilize careful screening procedures to determine risk; and
   Minimize restrictions on participants based on assessed 
        risk.
    Programs run by the Vera Institute of Justice, Catholic Charities 
of New Orleans, and Migration and Refugee Services (MRS) of the United 
States Catholic Conference all employed various strategies to try to 
achieve the goals described above.
    In 1996, the former Immigration and Naturalization Service (INS) 
contracted with the Vera Institute of Justice to run a 3-year pilot ATD 
program.\6\ The program sought to ``maximize release and community 
supervision at the beginning of a person's case and maximize detention 
at the moment that person loses his or her claim.''\7\ The program:
---------------------------------------------------------------------------
    \6\ Oren Root, The Appearance Assistance Program: An Alternative to 
Detention for Noncitizens in U.S. Immigration Proceedings (New York: 
Vera Institute for Justice, 2000), 1, http://www.vera.org/
download?file=209/aap_speech.pdf.
    \7\ Ibid, 2.
---------------------------------------------------------------------------
   Helped participants secure legal representation;
   Provided information about the immigration court process; 
        and
   Stressed the consequences to participants of not appearing 
        at immigration hearings (``absconding'').\8\
---------------------------------------------------------------------------
    \8\ Ibid, 3-4.
---------------------------------------------------------------------------
    Individuals enrolled in Vera's pilot program demonstrated a ``high 
rate of compliance with hearing requirements'' when compared with 
similarly situated persons who had been initially detained and then 
released to await their hearings.\9\ The study concluded that such 
programs were ``not only smart public policy, but fiscally prudent and 
humane.''\10\
---------------------------------------------------------------------------
    \9\ Ibid, 5-7.
    \10\ Ibid, 8.
---------------------------------------------------------------------------
    In 1998, Catholic Charities of New Orleans administered a program 
for indefinite detainees that provided participants with housing, job 
counseling, and assistance in accessing social services. Participants 
were carefully screened: Only persons determined not to pose a flight 
risk or a danger to the community were eligible to participate. 
Participants who did not comply with program requirements were reported 
to INS and placed in detention. However, only one of the program's 21 
participants was redetained. Catholic Charities ultimately judged the 
ATD program to be a safe, practical, and less costly alternative to 
indefinite detention.\11\
---------------------------------------------------------------------------
    \11\ Catholic Legal Immigration Network, Inc (CLINIC), The Needless 
Detention of Immigrants in the United States (Washington, DC: CLINIC, 
2000), 26-27.
---------------------------------------------------------------------------
    From 1987 to 1999, Migration and Refugee Services administered a 
program for so-called ``Mariel'' Cubans that offered housing, 
employment counseling, and advice on how to access social services. MRS 
carefully screened potential participants, and reported individuals who 
did not adhere to program requirements to INS. Ultimately, the program 
cost dramatically less than the continued detention of these 
individuals.\12\ The program served approximately 50 to 60 persons per 
year and enjoyed a compliance rate with the program's conditions of 
roughly 75 percent.\13\
---------------------------------------------------------------------------
    \12\ Ibid, 27-28.
    \13\ Ibid, 28.
---------------------------------------------------------------------------
    Question 2a. The ICE report released in October and your research 
indicate a high number of detainees in custody do not have criminal 
records. This finding is particularly striking in light of efforts to 
prioritize criminal aliens.
    Please elaborate on the impact of detaining non-criminal aliens.
    Answer. According to the October 2009 Schriro report, ``with only a 
few exceptions, the facilities that ICE uses to detain aliens were 
built, and operate, as jails and prisons to confine pre-trial and 
sentenced felons.''\14\ This criminal detention model is more costly 
and restrictive than necessary as a means to ensure court appearances 
by non-criminal detainees.\15\ In addition, detaining noncriminal 
immigrants is not an effective way to prioritize use of ICE's limited 
detention space.\16\
---------------------------------------------------------------------------
    \14\ Schriro, Immigration and Detention Overview and 
Recommendations, 2-3.
    \15\ Ibid.
    \16\ Root, The Appearance Assistance Program: An Alternative to 
Detention for Noncitizens in U.S. Immigration Proceedings, 2.
---------------------------------------------------------------------------
    Persons without criminal records make up a substantial portion of 
ICE detainees.\17\ According to an MPI analysis, 58 percent of persons 
in ICE custody on the night of January 25, 2009 did not have criminal 
records.\18\ In addition, Schriro's report noted that only 66 percent 
of ICE detainees on September 1, 2009 were mandatory detainees and that 
``the majority of the [detainee] population is characterized as low 
custody, or having a low propensity for violence.''\19\
---------------------------------------------------------------------------
    \17\ Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can 
ICE Meet Its Legal Imperatives and Case Management Responsibilities? 
(Washington, DC: Migration Policy Institute, September 2009), http://
www.migrationpolicy.org/pubs/detentionreportSept1009.pdf.
    \18\ Ibid, 1.
    \19\ Schriro, Immigration and Detention Overview and 
Recommendations, 2.
---------------------------------------------------------------------------
    Beyond the financial cost, detention can have a considerable impact 
on the welfare and heath of immigrants, both those who have and those 
who do not have criminal records. As has been well documented, 
detention can prevent detainees from meaningfully pursuing legitimate 
immigration claims, securing legal representation, and maintaining 
contact with family members. Detention conditions can be especially 
traumatic for asylum seekers and torture survivors.
    Question 2b. Has a lack of ATD options played a role in the 
detention of non-criminal aliens?
    Answer. According to its most recent estimates, ICE has the ability 
to accommodate roughly 18,000 individuals in ATD programs on a daily 
basis.\20\ The individual ATD programs can respectively accommodate:
---------------------------------------------------------------------------
    \20\ U.S. Immigration and Customs Enforcement. ``Alternatives to 
Detention for ICE Detainees,'' (Fact Sheet, October 23, 2009), http://
www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.
---------------------------------------------------------------------------
   6,000 persons--Intensive Supervision Appearance Program 
        (ISAP);
   7,000 persons--Enhanced Supervision/Reporting (ESR); and
   5,000 persons--Electronic Monitoring (EM).\21\
---------------------------------------------------------------------------
    \21\ Ibid.
---------------------------------------------------------------------------
    ATD programs are not available throughout the country.\22\ In 
addition, ICE needs to improve its ability to assess the flight and 
safety risks presented by potential program participants.\23\ ICE plans 
to develop ``a Nation-wide implementation plan'' for its ATD program 
and a more comprehensive risk assessment tool to guide its placement 
decisions.\24\
---------------------------------------------------------------------------
    \22\ Schriro, Immigration and Detention Overview and 
Recommendations, 20.
    \23\ Testimony of Donald Kerwin, ``Moving Toward More Effective 
Immigration Detention Management,'' before the House Subcommittee on 
Border, Maritime, and Global Counterterrorism, December 10, 2009, 5, 
http://www.migrationpolicy.org/pubs/Testimony-12-10-2009.pdf.
    \24\ DHS, ``ICE Detention Reform: Principles and Next Steps.''
---------------------------------------------------------------------------
    Finally, if properly structured, ATD programs could be considered 
alternate forms of detention, and thus made available to mandatory 
detainees. As I stated in my testimony:

``[m]andatory detention laws broadly cover significant numbers of 
persons who, with proper supervision, would not be a flight risk. Given 
that 66 percent of ICE detainees must be detained,\25\ the significant 
expansion of alternative-to-detention programs--and the resulting cost 
savings to the government and benefits to the affected individuals--
will depend on whether alternatives to detention are found to be soft 
detention or constructive custody.''\26\
---------------------------------------------------------------------------
    \25\ See, e.g., Young v. INA, 208 F. 3d 1116, 1118 (9th Cir. 2000) 
(release to halfway house held to be a form of civil custody).
    \26\ Testimony of Donald Kerwin, ``Moving Toward More Effective 
Immigration Detention Management,'' 6.
      
---------------------------------------------------------------------------
  Questions From Chairman Bennie G. Thompson for Donald M. Kerwin, Jr.
    Question 1. Your organization released a report in September that 
raised the issue of whether ICE has the capacity to comply with its own 
National detention standards. Specifically, the report cited serious 
lapses in ICE's information systems. Illustrating this point, ICE 
disclosed this past August that 10 persons whose deaths had not 
previously been reported had apparently died in custody between 2004 
and 2007.
    If ICE lacks the capacity to track the number of detainee deaths 
that occur in its custody, how can the agency comply with the law and 
detention standards? How do you recommend ICE rectify these capacity 
problems?
    Answer. In September 2009, MPI released a report exploring whether 
or not the information tracked by ICE's central database--known as 
ENFORCE--allowed the agency to abide by its National detention 
standards.\1\ The report uncovered a number of anomalies in the 
information tracked by ICE. One of the report's most striking findings 
was that ENFORCE did not appear to track detainee deaths; a separate 
database and protocol exists for this purpose.
---------------------------------------------------------------------------
    \1\ Kerwin and Lin, Immigrant Detention: Can ICE Meet Its Legal 
Imperatives and Case Management Responsibilities?.
---------------------------------------------------------------------------
    On January 25, 2010, ICE Assistant Secretary John Morton stated 
that ICE had modified its protocol for reporting and investigating 
detainee deaths.\2\ However, it is still not certain whether ICE tracks 
deaths and other legally and operationally significant detainee 
information in the ENFORCE database. To our knowledge, ICE has not 
shared with Congress or other stakeholders a complete list of the 
detainee information tracked in ENFORCE or its manual, which describes 
ENFORCE's database fields and how ICE collects and records detainee 
information.
---------------------------------------------------------------------------
    \2\ C-SPAN Video Library, ``Obama Administration Immigration and 
Customs Policy,'' min. 37-40.
---------------------------------------------------------------------------
    As the MPI report proposed:

    ``ICE [should] initiate a thorough inventory and review of its 
        information systems, including ENFORCE, to ensure that they 
        allow for informed decisions related to the substance and 
        timing of:
     ``who ICE must detain and who it must consider for 
            release, with a particular focus on when `mandatory' 
            detainees become eligible for release;
     ``which detainees must be allowed to participate in ICE's 
            two post-removal order, custody review processes;
     ``who should be placed in ICE's alternatives to detention 
            programs; and
     ``ICE's adherence to its National detention 
            standards.''\3\
---------------------------------------------------------------------------
    \3\ Kerwin and Lin, Immigrant Detention: Can ICE Meet Its Legal 
Imperatives and Case Management Responsibilities, 25.

    ICE should also ``examine how ENFORCE relates to other databases 
within the Department of Homeland Security and other Federal 
agencies.''\4\ Finally, ICE should make public its information systems 
manual and its protocols for collecting information from detainees.
---------------------------------------------------------------------------
    \4\ Ibid, 37.
---------------------------------------------------------------------------
    Since developing civil detention standards is at the core of 
immigrant detention reform, improvements in ICE's information systems 
should allow the agency to comply with current detention standards and 
position it to comply with the new standards once they are developed.
    Question 2. This past October, the Houston Chronicle obtained data 
that raised questions about the effectiveness of two of the three 
existing ATD programs. In one program, nearly one in five participants 
absconded while under supervision during the past 5 years.
    What contributed to the program mismanagement? How can these 
programs be improved?
    Answer. The Houston Chronicle questioned ICE's reporting on the 
success of its ATD program.\5\ In its evaluation of its ATD program, 
ICE had reportedly failed to count as program participants those 
persons who had absconded from the program. As a result, court 
appearance rates, while still high under the ISAP program (roughly 82 
percent), were not as high as the 99 percent rate previously reported 
by ICE based on its faulty methodology.\6\
---------------------------------------------------------------------------
    \5\ Susan Carroll, ``Flaws found in options for immigrant 
detention,'' Houston Chronicle, October 20, 2009, http://www.chron.com/
disp/story.mpl/metropolitan/6675443.html.
    \6\ Ibid.
---------------------------------------------------------------------------
    Compliance with ATD program requirements--namely, the requirement 
that program participants appear at their scheduled hearings--could be 
improved through the implementation of a more reliable risk assessment 
tool, coupled with efforts to expedite the removal cases of ATD program 
participants. The longer participants remain in ATD programs, the more 
likely they are to abscond.\7\
---------------------------------------------------------------------------
    \7\ Testimony of Donald Kerwin, ``Moving Toward More Effective 
Immigration Detention Management,'' 5.
---------------------------------------------------------------------------
    Providing ATD program participants with assistance in securing 
legal counsel and with information about the removal process--
especially the consequences of not appearing--should also be core 
components of any ATD program. These factors have proven vital to 
ensuring high court appearance rates in ATD programs.\8\
---------------------------------------------------------------------------
    \8\ Root, The Appearance Assistance Program: An Alternative to 
Detention for Noncitizens in U.S. Immigration Proceedings, 3-4; Megan 
Golden, Oren Root, and David Mizner, The Appearance Assistance Program: 
Attaining Compliance with Immigration Laws Through Community 
Supervision (New York: Vera Institute for Justice, 1998), 10-13, http:/
/www.vera.org/download?file=211/aap.pdf.
---------------------------------------------------------------------------
    Ultimately, ATD programs will be more successful if they are made 
available to individuals while their removal cases are pending, rather 
than relied upon to ensure people's appearance for their actual 
deportations. The possibility of prevailing in their removal cases, 
coupled with the knowledge that this represents their only chance to 
remain lawfully in the United States, will compel program participants 
to appear for their court hearings.\9\
---------------------------------------------------------------------------
    \9\ Root, The Appearance Assistance Program: An Alternative to 
Detention for Noncitizens in U.S. Immigration Proceedings, 3-4.
---------------------------------------------------------------------------
    Question 3. According to the Dora Schriro report, approximately 50 
percent of the immigrant detainee population is housed in shared-use 
county jails. ICE only owns and operates seven facilities Nation-wide.
    Does immigrant detainee care suffer because ICE does not own or 
operate a larger share of facilities? What type of facility provides 
the best care and why?
    On January 25, 2010, Assistant Secretary Morton described the 
immigrant detention system as a ``sprawling network of contract 
facilities that are uneven in their design, uneven in the kinds of 
conditions that they offer, [and] uneven in the kinds of medical 
services that they provide.''\10\ The degree to which private 
contractors manage, oversee, and operate the ICE detention system--and 
the disparate conditions in these facilities--continues to surprise 
even close observers of the immigration detention system.
---------------------------------------------------------------------------
    \10\ C-SPAN Video Library, ``Obama Administration Immigration and 
Customs Policy,'' min. 30-32.
---------------------------------------------------------------------------
    ICE is addressing the need for increased detention oversight 
through plans to hire Federal employees to provide on-site oversight at 
the facilities that house more than 80 percent of its detainees.\11\
---------------------------------------------------------------------------
    \11\ DHS, ``ICE Detention Reform: Principles and Next Steps.''
      
---------------------------------------------------------------------------
    The ICE facilities providing the best care tend to be those few 
that do not operate based on a penal model. However, there have been 
problems associated with each type of ICE detention facility. ICE 
should continue to identify alternative housing options that reflect 
its civil detention authorities. Formulating and implementing civil 
detention standards must be at the core of immigration detention 
reforms, and this effort must be combined with the establishment of 
effective detention oversight. In its efforts to develop civil 
detention standards, ICE should study a range of potentially analogous 
systems, both in the United States and abroad.
     Questions From Chairwoman Loretta Sanchez for Brittney Nystrom
    Question 1a. In your testimony, you mention that one of the biggest 
frustrations for non-governmental organizations (NGOs) is the lack of 
collaboration with ICE field offices.
    Please elaborate on this frustration.
    Question 1b. If NGOs had the opportunity to work with field 
offices, what would that collaboration look like?
    Answer. ICE field offices vary widely in outreach to local NGOs and 
willingness to respond to concerns. Unlike the more formalized liaison 
or working group structures of communication that exist between ICE 
headquarters and NGOs in Washington, DC, collaboration with ICE field 
offices is varied and often dependent on the attitude or personality of 
the field office leadership. For example, ICE field offices do not 
uniformly engage in liaison meetings or establish channels of 
communication with local NGOs, and far too frequently do not respond to 
the communications made by local community-based groups. Some field 
offices foster robust relationships with NGOs, while others are less 
willing to engage in outreach. Despite National detention reforms 
undertaken by ICE leadership, NGOs that provide direct legal services 
and know your rights presentations to detainees have varying levels of 
access and collaboration with ICE field offices. Some of these service 
providers feel constrained to report poor detention conditions or 
detainee reports of ICE misconduct for fear of retaliation and the need 
to maintain cordial relations with ICE field offices in order to 
maintain access to detainees.
    A lack of transparency in ICE detention and deportation practices 
and procedures frustrates NGOs and undermines efforts to establish 
uniformity. Without public and standardized practices and policies, 
NGOs are unable to detect or report noncompliance. ICE field offices 
have historically resisted transparency and have been referred to as 
``fiefdoms'' that operate outside the oversight of ICE headquarters 
staff. In addition to the vast variation in conditions across the 
network of facilities that ICE uses, there is a significant variation 
of release practices across field offices, including use of 
alternatives to detention programs, parole grant rates for arriving 
asylum seekers, timelines for conducting post-order custody reviews and 
subsequent release for indefinite detainees, and bond determinations.
    ICE headquarters should encourage field offices to work alongside 
local NGOs and should standardize best practices in community outreach 
and partnership. Collaboration with NGOs can include: Establishment of 
standing liaison meetings between leaders at each field office and the 
NGO community, regularized agreements that encourage and solidify 
access for NGOs to provide legal services to detainees, establishment 
of minimum response times to NGO concerns regarding detainees, and 
sharing of expected practices and policies with NGO partners. Perhaps 
most simply, ICE should issue guidance to field offices supporting 
collaboration with NGOs. This approach has proved beneficial to both 
USCIS, which issued guidance encouraging asylum offices to work with 
NGOs representing detainees at credible fear or reasonable fear 
interviews,\1\ and to EOIR, which underscored the benefit NGOs and pro 
bono attorneys provide to immigration courts and standardized 
facilitation of their legal services.\2\ Finally, collaboration between 
NGOs and field offices can include protocols for outreach to NGOs for 
situations concerning vulnerable detainees in need of release, legal, 
or medical assistance.
---------------------------------------------------------------------------
    \1\ Memorandum from Joseph E. Langlois to Asylum Office Directors 
and Deputy Directors, Nov. 8, 2007, 120/9.15, available at http://
www.uscis.gov/files/pressrelease/CredibleFear110807.pdf.
    \2\ Memorandum from David L. Neal to Immigration Judges, Court 
Administrators, Attorney Advisors and Judicial Law Clerks, and 
Immigration Court Staff, March 10, 2008, available at http://
www.justice.gov/eoir/efoia/ocij/oppm08/08-01.pdf.
---------------------------------------------------------------------------
    Question 2a. A lot of attention has been given to who ICE detains 
and the risk they may pose to the community. At present, ICE uses 
criminal history to determine whether a detainee should be placed in 
low, moderate, or high custody. However, under this classification 
system, non-violent criminal aliens are frequently housed with violent 
criminals.
    How would you recommend ICE improve the current ICE classification 
system for detainees?
    Question 2b. How should vulnerable populations be classified? What 
would a facility for detainees in this group look like?
    Answer. During both the initial custody determination and any 
subsequent classification or risk assessment, the presence of a 
criminal record should not automatically trigger restrictions on 
liberty.\3\ It must not be overlooked that the purpose of ICE detention 
is to ensure compliance with future immigration proceedings. An 
individual who comes into ICE custody from the criminal justice system 
has already completed any imposed criminal sentence. ICE's assessment 
tools should take into consideration a host of factors beyond whether 
an individual has a record of criminal convictions, such as the 
presence of medical or mental health factors, whether an individual is 
a primary caregiver, and the individual's ties to the community. Where 
detention is found to be necessary, ICE should make housing 
classifications to ensure that individuals are placed in the least 
restrictive setting and are able to access medical and mental health 
care. This necessitates a medical classification contemporaneous with 
the housing classification.
---------------------------------------------------------------------------
    \3\ ICE statistics show that only 11 percent of individuals in 
detention had been alleged to have committed violent crimes, and that 
the majority of the population is characterized as low custody, or 
having a low propensity of violence, i.e., the majority of individuals 
designated as ``criminal aliens''--which includes individuals who have 
been charged with traffic violations, would not pose any threat to 
public safety. Of the individuals designated as ``criminal aliens,'' 
the most common criminal charges were for offenses involving traffic 
violations, drugs, simple assault, and larceny. ``Immigration Detention 
Overview and Recommendations,'' ICE, Dr. Dora Schriro, Oct. 6, 2009, 
available at http://www.ice.gov/doclib/091005_ice_detention_report-
final.pdf.
---------------------------------------------------------------------------
    Where criminal records are associated with an individual 
apprehended by ICE, the records must be certified. Criminal records 
should also be further assessed for length of time elapsed since the 
conviction, evidence of rehabilitation since the conviction, the degree 
and severity of the conviction, and whether the conviction is solely a 
consequence of lack of immigration status. Arrests that did not result 
in convictions should not weigh into a custody determination or housing 
classification decision. Standardized and thorough evaluations of 
criminal records would help ensure that individuals are classified 
accordingly and would prevent excessive restrictions on liberty.
    Vulnerable populations are especially at risk and cannot safely or 
humanely be detained in facilities meant for use by the criminal 
justice system. Current detention facilities used by ICE are overly 
restrictive given ICE's narrow, civil detention authority, and are 
traumatizing for all immigration detainees. All reasonable efforts 
should be undertaken by ICE to ensure that vulnerable populations are 
not detained or are released from detention. Congress should 
appropriate sufficient funds to establish National alternatives to 
detention, including community-based programs. If risk of flight is a 
concern, individuals who belong to a vulnerable population should be 
automatically considered for enrollment in a secure alternative to 
detention program with appropriate services to ensure appearance. If 
detention must be imposed, vulnerable populations should be housed in 
the least restrictive setting possible. If ICE persists on the 
detention of these populations, they require specialized, on-site 
medical and mental health care, generous telephone and e-mail 
communication opportunities, absence of jail-issued clothing, shackles, 
and other jail setting accoutrements, and enhanced freedom of movement 
both within and outside detention facilities.
    Questions From Chairman Bennie G. Thompson for Brittney Nystrom
    Question 1a. There has been a six-fold increase in the number of 
immigration detention beds in the United States since 1994. This is a 
rapid increase in detention bed capacity in a relatively short period 
of time.
    To what extent has the rapid growth in detention space contributed 
to problems with the detention system?
    Question 1b. What can ICE do to address these problems, in both the 
short and long term?
    Answer. The explosion of ICE's immigration detention system 
resulted in a sprawling, decentralized detention system that is overly 
reliant on both private contractors and existing jails and prisons. 
ICE's rapidly expanded network of approximately 300 detention 
facilities has created a challenge to properly oversee and manage 
conditions at each facility. Thus, day-to-day operations and conditions 
of detention at the majority of these facilities have been ceded to 
contractors, both from private industry and local government. Detention 
condition standards are not now mandatory for facilities that are 
operated through intergovernmental service agreements, which represent 
the bulk of facilities in the detention network, and none of the 
standards are legally enforceable because they are neither codified in 
statute nor promulgated into regulations. As a result, conditions vary 
widely across the patchwork of facilities pushed into service over the 
past few years by ICE to house the escalating number of detainees. 
These facilities are typically county jails that detain individuals for 
ICE in an identical fashion to the individuals they detain for the 
criminal justice system, sometimes mixing ICE detainees and the general 
criminal population in the same cells. Finally, ICE's network of 
detention beds is strongly weighted towards the South, with Texas 
outpacing all other areas in numbers of ICE detainees. The unequal 
distribution of detention beds Nation-wide created skyrocketing numbers 
of transfers as detainees are shuffled to cheaper and more available 
detention beds. Correspondingly, detainees have become clustered in 
rural areas far from legal services, family support, and medical 
providers.
    ICE must make both short-term and long-term efforts to regain 
operational control of the facilities it employs and to enforce 
detention standards appropriate for civil immigration detention. In the 
short term, ICE must install on-site employees at each detention 
facility to regulate conditions of detention and create meaningful 
oversight. ICE Assistant Secretary John Morton has publicly committed 
to reclaiming oversight capability of facilities used to house 
immigration detainees. However, announcements that more than 50 Federal 
employees will be deployed to the more than 300 detention facilities 
ICE currently uses have not yet been fulfilled. Other short-term 
corrections would include implementation of simple improvements in 
conditions of detention that would emphasize the civil, non-punitive 
nature of immigration detention. Some improvements could be effectuated 
quickly, such as extended visitation hours, access to personal clothing 
rather than required jail uniforms, and greater freedom of movement 
within facilities. ICE has also taken steps to update and improve the 
Performance Based National Detention Standards that were slated for 
National implementation in January 2010. Implementation and enforcement 
of these standards offer a critical opportunity for ICE to set a new 
course for immigration detention.
    Contracts with detention facilities must be renegotiated in a 
manner that emphasizes ICE's expectations for meeting the improved 
standards and establishes consequences for non-compliance. 
Additionally, unannounced and more frequent inspections against 
standards, enhanced grievance review procedures and the deployment of 
Federal employees to every facility ICE uses are required to ensure 
compliance with ICE's enhanced detention standards.
    Longer-term corrections include a shift in the concept of 
immigration detention and an overhaul of detention facility design to 
reflect ICE's civil detention authority. A truly civil detention system 
would be separate and distinct from the correctional facilities relied 
upon by ICE today. Detention standards appropriate to a civil detention 
system must be developed, implemented, monitored, and made enforceable 
through statute or regulation. Thus, ICE may need to locate or build 
detention facilities that match its detention authority and 
requirements.
    Question 2a. In your testimony, you cite a Washington Post 
investigative series from last year that found substandard medical care 
may have contributed to the deaths of at least 30 individuals in 
immigration custody.
    What are the biggest challenges facing the detainee medical care 
system?
    Question 2b. What can ICE do to address problems with this system, 
both over the long term and more immediately?
    Answer. An initial challenge to the provision of medical care to 
immigration detainees is that adequate screening is not conducted by a 
medical professional at the point of apprehension or booking to 
identify medical or mental health concerns. As a result, individuals 
who are medically vulnerable are nonetheless placed into immigration 
detention. For example, Sandra Kenley was placed into immigration 
detention despite alerting DHS officials that she was scheduled for a 
hysterectomy and was hemorrhaging daily. She died only a few weeks 
after being placed by ICE in county jails in Virginia.\4\ Furthermore, 
many asylum seekers or survivors of torture linger behind bars pending 
adjudication of their immigration claims. For these individuals, 
detention is a re-traumatizing event documented as causing distress.\5\ 
Individuals who present at intake with medical or mental health 
concerns should be automatically considered for release, parole, or 
alternatives to detention. Additionally, there must be on-going medical 
evaluations of detainees to identify individuals who may have developed 
medical or mental health conditions while in custody.
---------------------------------------------------------------------------
    \4\ ``New Scrutiny as Immigrants Die in Custody'', The New York 
Times, Nina Bernstein, June 26, 2007, http://www.nytimes.com/2007/06/
26/us/26detain.html?pagewanted=all.
    \5\ ``From Persecution to Prison: The Health Consequences of 
Detention for Asylum Seekers'', Physicians for Human Rights and the 
Bellevue/NYU Program for Survivors of Torture, June 2003, available at 
http://physiciansforhumanrights.org/library/documents/reports/report-
perstoprison-2003.pdf.
---------------------------------------------------------------------------
    Additionally, there are a host of challenges ICE must overcome to 
provide sufficient medical care after individuals are detained. One 
chronic obstacle to effective delivery of medical care to detainees has 
been vacant or non-existent medical staff positions within detention 
facilities. In recent years, some of the largest detention facilities 
holding thousands of detainees have had no staff psychiatrists on 
site.\6\ The physical design of detention facilities used by ICE has 
also led to inappropriate care for sick detainees. Generally, many 
facilities used by ICE were built for short-term custody and are not 
equipped to meet the needs of detainees who may be kept there for 
months if not years. To illustrate, detainees with mental health needs 
have been inappropriately and dangerously confined to isolation units, 
or ``the hole'', due to a lack of designated medical facilities within 
the facility. A delegation of the Inter-American Commission on Human 
Rights expressed distress after observing ``the use of solitary 
confinement to ostensibly provide personal protection for vulnerable 
immigrant detainees, including homosexuals, transgender detainees, 
detainees with mental illnesses, and other minority populations.'' The 
delegation also noted that ``the use of solitary confinement as a 
solution to safeguard threatened populations effectively punishes the 
victims'' and urged the U.S. Government ``to establish alternatives to 
protect vulnerable populations in detention and to provide the 
mentally-ill with appropriate treatment in a proper environment.'' 
Another problematic component of health care in immigration detention 
is the troubled Treatment Authorization Request or ``TAR'' process for 
obtaining medical care beyond what care is available within a detention 
facility. The DHS Office of Inspector General made several 
recommendations on ways to improve this process in a report issued in 
December 2009.\7\
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    \6\ ``Detaining Care, Part One: Mental Hell'', The Texas Tribune, 
Emily Ramshaw, Nov. 16, 2009, available at http://www.texastribune.org/
stories/2009/nov/16/psychiatrists-mental-health-care-absent-
immigration-detention-centers/.
    \7\ http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-23_Dec09.pdf.
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    In addition to implementing the OIG's recommendations on the TAR 
process, ICE is moving forward on immediate improvements to the 
existing Performance Based National Detention Standards. These 
enhancements can help address medical intakes, comprehensive medical 
evaluations, responses to detainee requests for medical care, and 
proper care and housing for detainees with medical and mental health 
issues. More long-term improvements to medical care for immigration 
detainees should include a transition to electronic medical records for 
all detainees and the development of a new construct of civil detention 
standards that are separate from correctional standards that have been 
used in the past. However, the best designed standards will not result 
in improved medical care if they are not implemented, supervised, and 
made enforceable. ICE must actively supervise conditions at each 
detention facility and there must be consequences for non-compliance. 
Facility staff and ICE staff at detention facilities require better 
training on recognizing and responding to medical and mental health 
conditions.

                                 
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