    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

                         KEEP OUR COMMUNITIES SAFE ACT

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

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                       IMMIGRATION POLICY AND ENFORCEMENT

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 1932

                                   __________

                                  MAY 24, 2011

                                   __________

                               Serial No. 112-43

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

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                           COMMITTEE ON THE JUDICIARY

                          LAMAR SMITH, Texas, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        HOWARD L. BERMAN, California
    HOWARD COBLE, North Carolina         JERROLD NADLER, New York
    ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT,
    BOB GOODLATTE, Virginia                  Virginia
    DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
    STEVE CHABOT, Ohio                   ZOE LOFGREN, California
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MIKE PENCE, Indiana                  MAXINE WATERS, California
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TRENT FRANKS, Arizona                  Georgia
    LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
    TOM MARINO, Pennsylvania             DEBBIE WASSERMAN SCHULTZ, Florida
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona
    [Vacant]

          Sean McLaughlin, Majority Chief of Staff and General Counsel
           Perry Apelbaum, Minority Staff Director and Chief Counsel
                                     ------

               Subcommittee on Immigration Policy and Enforcement

                      ELTON GALLEGLY, California, Chairman

                        STEVE KING, Iowa, Vice-Chairman

    DANIEL E. LUNGREN, California        ZOE LOFGREN, California
    LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
    TED POE, Texas                       MAXINE WATERS, California
    TREY GOWDY, South Carolina           PEDRO R. PIERLUISI, Puerto Rico
    DENNIS ROSS, Florida

                         George Fishman, Chief Counsel

                       David Shahoulian, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  MAY 24, 2011

                                                                       Page

                                    THE BILL

    H.R. 1932, the ``Keep Our Communities Safe Act of 2011''.........     3

                               OPENING STATEMENTS

    The Honorable Elton Gallegly, a Representative in Congress from
      the State of California, and Chairman, Subcommittee on
      Immigration Policy and Enforcement.............................     1
    The Honorable Zoe Lofgren, a Representative in Congress from the
      State of California, and Ranking Member, Subcommittee on
      Immigration Policy and Enforcement.............................    21
    The Honorable Lamar Smith, a Representative in Congress from the
      State of Texas, and Chairman, Committee on the Judiciary.......    22
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, and Ranking Member, Committee on
      the Judiciary..................................................    24

                                   WITNESSES

    Gary Mead, Executive Associate Director for Enforcement and
      Removal Operations, U.S. Immigration and Customs Enforcement,
      U.S. Department of Homeland Security
      Oral Testimony.................................................    26
      Prepared Statement.............................................    29
    Thomas H. Dupree, Jr., Partner, Gibson, Dunn & Crutcher LLP,
      Washington, DC
      Oral Testimony.................................................    41
      Prepared Statement.............................................    43
    Douglas E. Baker, Chief of Police, City of Fort Myers, FL
      Oral Testimony.................................................    53
      Prepared Statement.............................................    55
    Ahilan T. Arulanantham, Deputy Legal Director, ACLU of Southern
      California
      Oral Testimony.................................................    59
      Prepared Statement.............................................    61

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted by the Honorable Zoe Lofgren, a Representative
      in Congress from the State of California, and Ranking Member,
      Subcommittee on Immigration Policy and Enforcement.............   107

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Letter from Thomas M. Susman, Director, Governmental Affairs
      Office, the American Bar Association...........................   181
    Letter from Douglas E. Baker, Chief of Police, Fort Myers Police
      Department, Fort Myers, FL.....................................   186
    FY2009-FY2011 YTD Zadvydas Releases by Citizenship, Country, and
      Criminality....................................................   189

                         KEEP OUR COMMUNITIES SAFE ACT

                                  ----------

                             TUESDAY, MAY 24, 2011

                  House of Representatives,
                        Subcommittee on Immigration
                                Policy and Enforcement,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to call, at 10:07 a.m., in
    room 2141, Rayburn Office Building, the Honorable Elton
    Gallegly, (Chairman of the Subcommittee) presiding.
        Present: Representatives Gallegly, Smith, King, Poe, Gowdy,
    Ross, Lofgren, Conyers, and Jackson Lee.
        Staff present: (Majority) Dimple Shah, Counsel; Marian
    White, Clerk; Tom Jawetz, Minority Counsel.
        Mr. Gallegly. I call the Subcommittee to order.
        As reportedly recently in the news, when 16-year-old Ashton
    Cline-McMurray was brutally murdered, his mother took some
    comfort in knowing that her son's illegal immigrant killers
    would not walk American streets again.
        Under the belief that her son's killers would be removed,
    Sandra Hutchinson agreed to let prosecutors work plea
    agreements with the purported gang members, several of them
    illegal immigrants. They ultimately pled guilty to lesser
    charges. According to Mrs. Hutchinson, the prosecutors
    reassured her that after the convicted criminals who had killed
    her son completed their sentences, the killers would be
    deported.
        Mrs. Hutchinson's son was attacked while walking home from
    a football game in Suffolk County just outside of Boston. He
    was disabled with cerebral palsy. According to the mother,
    ``They stabbed him, they beat him. They beat him with rungs off
    the stairs. They beat him with a golf club. They stabbed him
    through his heart and then finally through his lungs. They
    stabbed him in his abdomen and he didn't really have any
    chance.''
        By pleading guilty to lesser charges for manslaughter to
    second degree murder, the four killers did not serve the
    mandatory life sentence without parole that comes with a murder
    conviction. This allowed one of the defendants, Loeun Heng, to
    be released by the Massachusetts parole board last March. Heng,
    an illegal immigrant, was immediately taken into custody by the
    U.S. Bureau of Immigration and Customs Enforcement after his
    release. But instead of being deported to his native Cambodia,
    Heng is back on the streets of the United States. Heng, like
    many other criminal aliens, could not be deported because his
    home country refused to take him back.
        Two other men convicted of the crime remain in prison. Both
    are believed to be illegal immigrants. It is believed that the
    Government will attempt to deport them once released, but the
    possibility remains that they may not be removed. The fourth
    man convicted is already free but is in the United States
    legally.
        How can this happen? In a word, Zadvydas. A line of cases
    following the Supreme Court decision from 2001 in Zadvydas v.
    Davis set severe limitations on the ability for the Federal
    immigration authorities to detain immigrants who have been
    ordered deported but who cannot be removed.
        In almost all cases, deportable aliens must be released
    after 180 days if they are not deported, no matter how
    dangerous they are. This usually occurs in situations where
    their home countries delay their removal and do not cooperate
    with the United States Government or the aliens have persuaded
    an immigration judge that they will be tortured if they return
    home.
        The end result is that the American public is put at risk
    by non-deportable criminal aliens. Our communities are placed
    in danger as aliens who have serious criminal records and no
    legal right to be here are not placed in detention. Currently
    almost 5,000 aliens, 4,000 of them criminal aliens, are being
    released into the communities each year because of this
    decision.
        The bill Chairman Smith has introduced will effectively
    address the problems created by the Zadvydas case. As a result,
    mothers such as Mrs. Hutchinson will be able to rest assured
    knowing criminal aliens such as Heng will not be released into
    the community and the American public will be a safer place.
        The bill, H.R. 1932, follows:]

                                   __________
        Mr. Gallegly. I strongly support H.R. 1932 and will now
    turn to my good friend from California, the Ranking Member, Ms.
    Lofgren, for her opening statement.
        Ms. Lofgren. Thank you, Mr. Chairman.
        The new majority began this Congress by reading the U.S.
    Constitution aloud on the House floor. The Due Process Clause
    of the Fifth Amendment to the Constitution says--I quote--``No
    person . . . shall . . . be deprived of life, liberty, or
    property without due process of law.''
        For more than 110 years, the Supreme Court has recognized
    that ``the Due Process Clause applies to all persons within the
    United States, including aliens, whether their presence here is
    lawful, unlawful, temporary, or permanent.''
        Today's bill not only violates this fundamental provision
    of individual liberty in the Constitution, but it does so at an
    incredible cost to the American taxpayer. ICE already spends
    approximately $2 billion annually on detention alone.
        The Supreme Court has twice warned of the serious
    constitutional concerns that would be presented if our
    immigration laws authorize the indefinite and possibly
    permanent detention of civil immigration detainees. In Zadvydas
    v. Davis, the Court said that ``freedom from imprisonment--from
    government custody, detention, or other forms of physical
    restraint--lies at the heart of the liberty that the [Due
    Process] Clause protects.''
        H.R. 1932 not only ignores the Supreme Court's
    constitutional warnings, but it goes further than past bills
    and authorizes the prolonged and in some cases mandatory
    detention of immigration detainees throughout their removal
    proceedings with no limit in time, virtually no procedural
    protections, and no consideration of whether detention is even
    necessary from a safety standpoint.
        During today's hearing, we will hear about some individuals
    who have been released from an immigration detention and have
    gone on to commit very serious crimes. Those are terrible
    cases, and the holes that they expose in our current system
    should be addressed.
        But while the title of this hearing suggests it is about
    how to authorize a continued detention of dangerous people, the
    bill reaches far beyond that. The bill authorizes, with no
    procedural checks, the extremely lengthy detention of asylum-
    seekers and lawful permanent residents, including those who
    have won their cases at every level but whose cases remain on
    appeal by DHS.
        I would never argue that our current removal process is
    perfect. We know that thousands of people remain in immigration
    detention for prolonged periods of time, sometimes far longer
    than 6 months or 1 year, while their cases work their way
    through the system. Delays in our overburdened immigration
    courts are substantial, and ICE's current enforcement
    priorities are expected to lead to even greater delays.
        So that is one problem we have to solve, but this bill does
    nothing to fix the underlying problems of inefficiencies in the
    removal process.
        We also know that thousands of people each year spend more
    than 6 months in immigration custody beyond the date of their
    final order of removal solely because their government refused
    to cooperate with repatriation. That is another problem we have
    to solve. We need to improve our ability to remove people in
    our custody who have final orders of removal.
        I understand that ICE and the State Department recently
    signed a memorandum of understanding that lays out a series of
    escalating steps that can be taken to influence the decisions
    of foreign governments in this regard. I am hopeful that this
    MOU will improve the situation, but I am open to hearing
    whether additional authority is needed. Once again, this bill
    does nothing to fix this underlying problem.
        Finally, we know that no matter what we do, there may still
    be some people who we are unable to remove from the U.S.
    Perhaps they are stateless like Mr. Zadvydas himself or perhaps
    their home countries cannot be convinced to accept them.
        In the small number of cases where a person is specially
    dangerous, I agree with the Chairman that we must have a way to
    ensure public safety. Federal law permits the involuntary
    hospitalization of persons suffering from mental illness who
    should not be released from custody at the end of their prison
    sentences because they present a danger to the public that
    cannot be mitigated. The law provides for appointment of
    counsel, requires the Government to prove its case by clear and
    convincing evidence before a Federal district court judge, and
    mandates treatment if detention is warranted.
        States also have procedures for civil commitment and
    involuntary hospitalization, and those procedures generally are
    available for persons being released from immigration
    detention.
        Our current immigration regulations also provide for
    further detention in those limited circumstances and require
    ICE to prove its case before an immigration judge.
        If current immigration regulations and the availability of
    State civil commitment proceedings are not sufficient, that may
    be a third problem we have to solve, but we need to design a
    system that is constitutional and narrowly tailored. Today's
    bill for indefinite detention in a broad category of cases
    without a hearing or even a personal interview falls short.
        As we began the 112th Congress, we consistently heard two
    main themes from those on the other side of the aisle. First,
    we must honor the Constitution and protect basic civil
    liberties. Second, we need to cut the budget and exercise
    fiscal responsibility. So it is surprising that today's bill
    looks at a series of legitimate problems within our removal
    system but proposes an extremely costly and largely
    unconstitutional response that does not even attempt to get at
    the underlying causes. Detaining more people and detaining
    people longer without any meaningful process to determine
    whether detention is necessary or appropriate is not the
    answer.
        I look forward to hearing from our witnesses, and I yield
    back the balance of my time.
        Mr. Gallegly. I thank the gentlelady.
        At this time, I would recognize the Chairman of the full
    Committee and the author of this legislation, the gentleman
    from Texas, Mr. Smith.
        Mr. Smith. Thank you, Mr. Chairman.
        In the 2001 decision of Zadvydas v. Davis, the Supreme
    Court ruled that immigrants admitted to the U.S. and then
    ordered removed could not be detained for more than 6 months if
    there was no reasonable likelihood of their being deported.
        In the 2005 case, Clark v. Martinez, the Supreme Court
    expanded its decision in Zadvydas to apply to immigrants who
    entered illegally.
        In 2006, the Department of Homeland Security Inspector
    General reported that thousands of criminal immigrants with
    final orders of removal were being released into our streets
    because some countries frustrate the removal process.
        The Inspector General found that nearly 134,000 immigrants
    with final orders of removal instead had been released just
    from 2001 to 2004. The Inspector General also found that these
    illegal immigrants are unlikely to ever be repatriated, if
    ordered removed, because of the unwillingness of their country
    or origin to provide them the necessary travel documents.
        In addition, thousands of criminal immigrants ordered
    removed have been released. This includes an immigrant who was
    implicated in a mob-related multiple homicide in Uzbekistan. It
    also includes an immigrant who shot a New York State Trooper
    after being released.
        According to recent data provided by Immigration and
    Customs Enforcement, nearly 4,000 dangerous criminal immigrants
    have been released each year since 2008.
        In two tragic instances, criminal immigrants released
    because of Zadvydas have gone on to commit murder. Huang Chen
    was ordered removed for assaulting Qian Wu. China refused to
    grant Huang the necessary documents and he was released as a
    result of Zadvydas. He then committed another assault and was
    again ordered removed. But again, China refused to issue travel
    documents. Huang was again released. He went on to violently
    murder Wu.
        Abel Arango served time in prison for armed robbery. Since
    Cuba would not take him back, he was released. He then went on
    to shoot Fort Myers, Florida police officer Andrew Widman in
    the face. Officer Widman never had the opportunity to draw his
    weapon. The husband and father of three died at the scene. And
    the police chief from Fort Myers is a witness for us today.
        Just because a criminal immigrant cannot be returned to
    their home country does not mean they should be freed into our
    communities. Dangerous criminal immigrants need to be detained.
        H.R. 1932, the Keep Our Communities Safe Act, provides a
    statutory basis for DHS to detain as long as necessary
    specified dangerous immigrants under orders of removal who
    cannot be removed. It authorizes DHS to detain non-removable
    immigrants beyond 6 months, but only if the alien will be
    removed in the reasonably foreseeable future; the alien would
    have been removed but for the alien's refusal to make all
    reasonable efforts to comply and cooperate with the Homeland
    Security Secretary's efforts to remove him; the alien has a
    highly contagious disease; release would have serious adverse
    foreign policy consequences; release would threaten national
    security; or release would threaten the safety of the community
    and the alien either is an aggravated felon or has committed a
    crime of violence. Such aliens may be detained for periods of 6
    months at a time and the period of detention may be renewed.
        The bill also provides for judicial review of detention
    decisions in the United States District Court for the District
    of Columbia.
        This legislation is desperately needed. There is no excuse
    for continuing to place American lives at risk.
        Thank you, Mr. Chairman, and I will yield back.
        Mr. Gallegly. The gentleman from Michigan, the Ranking
    Member of the full Committee, do you have an opening statement,
    Mr. Conyers?
        Mr. Conyers. I do. Thank you, Chairman Gallegly.
        I would like to join in welcoming our witnesses today. This
    is an important discussion.
        H.R. 1932 expands the ability of the Government to detain
    immigrants for many years, maybe indefinitely with little or no
    protections at all. In other words, it is unconstitutional.
        And it is so ironic that this would be coming from the
    Judiciary Committee leadership that is supposed to be
    protecting the Constitution and constitutional rights of all of
    our citizens and from members of a party that prides itself on
    limited government and the protection of individual liberty.
    And the Republican Party's pledge was about ensuring limited
    government and fiscal responsibility, and the Tea Party people
    among them go even further than that. And so now it turns out
    today that the party of limited government turns out to be the
    party, in this case, of unlimited government. It is just
    amazing.
        Intrusive government, they say, must be stopped. Government
    must be downsized. How many Members do I have telling me every
    time we talk that they are for limited government and that they
    want the government out of our business? And yet, here is a
    bill introduced by the Chairman of the Judiciary Committee that
    scraps the Constitution. And I hope that we get into a
    discussion about this.
        Now, the power of government is nowhere more clear than its
    ability to deprive a citizen of its liberty, and that power
    becomes absolute when it can be exercised without any limit and
    no meaningful checks. And there are so many ways in which 1932,
    the bill before us, offends the rule of law that I can only
    recite a few of them here today. But believe me, I am doing a
    study. This 2-hour hearing is only the beginning of my
    examination of what is wrong with this bill and the thinking
    behind it.
        Under the bill, thousands of immigration detainees would
    become subject to mandatory detention, no opportunity for a
    bond hearing, even if they pose no risk to the public and no
    risk of flight. Does that make you feel safer?
        And I appreciate all these terrible stories of some
    reckless criminal, homicidal person that did all these bad
    things. So, therefore, we need a law that takes away unlimited
    rights of everybody.
        Sometimes we say that the cost of an approach outweighs its
    benefit, but in this case, that would be too generous because
    what benefit do we get by detaining people without review?
    Where is our constitutional consciousness in a hearing like
    this?
        People who we suspect will cooperate with the process, who
    are likely to win their immigration cases and will certainly
    not do us any harm. Under the bill before us today, detainees
    with final orders of removal can be held indefinitely simply by
    the stroke of a pen from the Secretary of Homeland Security or
    the Director of Immigration and Customs Enforcement. Not only
    can a person be condemned to indefinite detention without a
    hearing before a neutral body, but it can take place without
    even a personal interview of the detainee. And as I have said
    before, the writ of habeas corpus to challenge the legality of
    detention is the most fundamental guarantee of our
    Constitution.
        So I cannot say I am shocked by what I am going to hear
    today, but I am sure getting tired of hearing it week after
    week after month after month all year long, the same old tune
    in which people that want limited government except when they
    have a bill that we throw the Constitution out.
        Habeas, immigration, detention, habeas corpus petitions
    should be filed in the court here. The only possible
    explanation for limiting them to the District of Columbia
    courts is it will make it harder for anybody that does not have
    a lawyer or cannot speak English or is being detained somewhere
    in Arizona--and I apologize--Texas. It is pretty clear what is
    behind all this. Nothing sophisticated about it.
        And the other explanation is that consolidating all these
    cases around the country into one court will overwhelm the
    court and prevent any swift decisions in accordance with
    justice. Just recently, Chief Judge Lamberth of the district
    court said that the several hundred habeas petitions filed by
    Guantanamo detainees alone have already overburdened the court
    so that there will be very few cases until summer and the fall.
    And he said it is as bad as I have ever seen it.
        So we need to make sure that our detention and removal
    system works and that we are holding the right people and under
    right conditions and for the right reasons. That is all I am
    asking here. I don't want anybody that shouldn't be released
    let out. I want to keep the people that would harm us or our
    country kept in. So this bill doesn't do that. It doesn't
    advance the goals. Instead it just increases the enormously
    expensive detention system and will remove or limit the few
    meaningful checks that still exist.
        Thank you, Chairman Gallegly, for allowing my statement.
        Mr. Gallegly. I thank the gentleman.
        As I am sure most of you are aware, we have a joint session
    with the Prime Minister of Israel on the floor at 11 a.m., and
    as a result of that, we are going to recess, unfortunately, at
    10:45. And we will try to get through as many of our witnesses'
    opening testimony as possible. I would really appreciate your
    sensitivity to the 5-minute time limit on testimony. The text
    of your entire statement will be made a part of the record of
    the hearing.
        Our first witness today is Mr. Gary Mead. Mr. Mead is
    Executive Associate Director for the Enforcement and Removal
    Operations, U.S. Immigration and Customs Enforcement at the
    Department of Homeland Security. Prior to joining ICE in April
    2006, he spent his entire Federal law enforcement career with
    the U.S. Marshal's Office. Mr. Mead holds a master's degree and
    has received two Senior Executive Service presidential rank
    awards.
        Mr. Thomas Dupree, Jr., is a partner in the Washington,
    D.C. office of Gibson, Dunn & Crutcher. Mr. Dupree is an
    experienced trial and appellate advocate. He served in the
    Civil Division of the U.S. Department of Justice from 2007 to
    2009, ultimately becoming the Principal Deputy Assistant
    Attorney General.
        Mr. Dupree graduated from Williams College and received his
    J.D. from the University of Chicago Law School.
        Chief Douglas Baker has served as the Chief of Police for
    the City of Fort Myers since January 2009. He joined the Fort
    Myers Police Department in 1986 as a patrolman and was promoted
    through the ranks to his current position. A graduate from the
    216th session of the National Academy in March 2004, Doug
    received his bachelor's and master's degree from Hodges
    University.
        Mr. Arulanantham--is it close enough?
        Mr. Arulanantham. You can call me ``Mr. Arul,'' Mr.
    Chairman.
        Mr. Gallegly. Mr. Arul. That works for me. [Laughter.]
        Is Deputy Legal Director at the ACLU of Southern
    California. Prior to joining the ACLU of Southern California,
    he was Assistant Federal Public Defender in El Paso, Texas, as
    well as a fellow at the ACLU Immigrants Rights Project in New
    York.
        Mr. Arul is a graduate of Yale Law School and a graduate of
    Oxford University.
        Mr. Mead?

       TESTIMONY OF GARY MEAD, EXECUTIVE ASSOCIATE DIRECTOR FOR
       ENFORCEMENT AND REMOVAL OPERATIONS, U.S. IMMIGRATION AND
       CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY

        Mr. Mead. Thank you, Mr. Chairman. Chairman Gallegly,
    Ranking Member Lofgren, distinguished Members of the
    Subcommittee----
        Mr. Gallegly. Mr. Mead, your mic is not working?
        Mr. Mead. It doesn't appear to be.
        Mr. Gallegly. Can we move the other microphone over there?
    Bring it in closer and push the button.
        Mr. Mead. How about that?
        Mr. Gallegly. That works perfect.
        Mr. Mead. Okay.
        Chairman Gallegly, Ranking Member Lofgren, and
    distinguished Members of the Subcommittee, on behalf of
    Secretary Napolitano and Director Morton, I would like to thank
    you for the opportunity to discuss non-removable aliens and the
    impact of the Supreme Court decision, Zadvydas v. Davis, on ICE
    operations.
        As the largest investigative arm of the Department of
    Homeland Security, ICE utilizes its immigration and customs
    enforcement authority to protect America and uphold public
    safety. On the whole, ICE is quite successful. In fiscal year
    2010, ICE recorded the removal of more than 392,000 illegal
    aliens. Half of those removed, more than 195,000, were
    convicted criminals, the most ever removed from our country in
    a single year.
        There are also challenges. Under Zadvydas, many aliens with
    final orders of removal may not be detained beyond a period of
    6 months. To hold such aliens, there must be a significant
    likelihood of removal in the reasonably foreseeable future.
    Only a small number of aliens who pose certain health and
    safety risks may continue to be detained for a prolonged period
    of time.
        These challenges have required changes in the way we hold
    aliens and conduct what we call post-order custody reviews.
    They have also required us to strengthen our relationship with
    the State Department in order to more effectively work with
    foreign governments to overcome delays or refusals in obtaining
    travel documents.
        ICE conducts post order custody reviews for all aliens who
    have received a final order allowing their removal by ICE but,
    for one reason or another, there is not a significant
    likelihood of removal in the reasonably foreseeable future.
    These are done to ensure that detention is justified and in
    compliance with governing laws and regulations. The conclusion
    reached in each case is subject to an intensive fact-specific
    inquiry and officers use these facts and their own experiences
    and knowledge regarding a given country to make the
    determination as to whether removal is significantly likely in
    the reasonably foreseeable future.
        Some of those aliens who are released due to Zadvydas have
    criminal records that include convictions for illegal activity
    ranging from property offenses to homicide. Under the
    regulations, ICE may continue to detain an alien whose release
    would pose a special danger to the public, if certain
    conditions are met.
        While ICE can continue to detain specially dangerous
    aliens, ICE cannot indefinitely detain all criminal aliens
    under the law. Since the beginning of 2009, ICE has made 12,781
    individual releases of aliens subject to Zadvydas. While the
    number of individual detainees re-booked into ICE custody,
    post-Zadvydas release is relatively low overall at 7 percent.
    ICE is deeply concerned by those criminal aliens that commit
    crimes after their Zadvydas release.
        While crimes by aliens are of significant concern, ICE is
    not in the business of holding detainees for indefinite lengths
    of time. As a practical matter, immigration detention has a
    finite endpoint in most cases as the vast majority of aliens
    are able to be removed in a matter of days or weeks.
        Ten years ago, Zadvydas addressed indefinite detention in
    the primary context ICE faces it today where ICE is unable to
    work with aliens and foreign governments to obtain travel
    documents. Getting foreign countries to allow repatriations
    remains a challenge for us today.
        There are few countries that refuse to accept their
    nationals who are under final orders of removal, and there are
    some countries that often delay the removal process. These
    refusals or delays have often forced ICE to release aliens
    subject to Zadvydas. My longer remarks lay out some of the
    countries that present the greatest challenges in this area.
        ICE has worked with the State Department to find solutions
    to address the timely issuance of travel documents. In an
    effort to decrease any delay in the removal process, in April
    2011 ICE and the State Department's Bureau of Consular Affairs
    signed a memorandum of understanding, or MOU, establishing ways
    in which the State Department and the Department of Homeland
    Security will work together in this area.
        The MOU also established procedures for meeting and working
    with countries that delay or refuse repatriation of specific
    nationals.
        Though this work is difficult, it has had some results. ICE
    and State recently held promising discussions with officials
    from the Peoples Republic of China regarding repatriation
    issues, and ICE looks forward to continuing to work with the
    PRC.
        ICE also completed draft demarches to nine countries
    requesting expeditious issuance of travel documents for aliens.
        The removal of criminal aliens consumes time and poses
    challenges. Every alien's removal requires not only cooperation
    within the U.S. Government but also the cooperation of another
    country. While ICE attempts to remove criminal aliens under the
    current law in light of the Zadvydas decision, aliens whose
    removal is not necessarily foreseeable, outside of the limited
    circumstances set out in regulations, must be released from ICE
    custody while we continue working to effectuate their removal.
        I thank the Committee for its support of ICE and our law
    enforcement mission. Your support is vital to our work. Your
    continued interest in and oversight of our actions is important
    to the men and women at ICE who work each day to ensure the
    safety and security of the United States.
        I would be pleased to answer any questions you have at this
    time.
        [The prepared statement of Mr. Mead follows:]

                                   __________

        Mr. Gallegly. Thank you very much, Mr. Mead.
        Mr. Dupree?

             TESTIMONY OF THOMAS H. DUPREE, JR., PARTNER,
              GIBSON, DUNN & CRUTCHER LLP, WASHINGTON, DC

        Mr. Dupree. Good morning. Thank you, Mr. Chairman, for
    inviting me to address an important legal issue that has
    immense, practical, real-world consequences: the executive
    branch's authority to detain dangerous aliens.
        I served as Principal Deputy Assistant Attorney General
    under President Bush and am very familiar with the flaw in our
    Nation's laws that is the subject of today's hearing. Indeed,
    this is a problem that is well known within legal and law
    enforcement communities.
        Although Congress in 1996 had granted the executive the
    power to detain removable aliens for extended periods, the
    courts have interpreted the law so as to require their release
    after a mere 6 months unless the Government can show that their
    removal is reasonably foreseeable. In many instances, however,
    removal is not reasonably foreseeable. The alien's country of
    origin may not take him back. Our obligations under the
    Convention Against Torture may not permit our removing him to
    his country of origin. There may be delays in obtaining the
    necessary travel documents, or the alien's country of origin
    may simply be unknown.
        The consequence is that, under current law, the Government
    is compelled to release into our communities murderers, child
    molesters, and other predators who pose a clear and direct
    threat to public safety and national security.
        The problem arises from the Supreme Court's decision in
    Zadvydas v. Davis. In Zadvydas, the Supreme Court construed the
    post-removal period detention statute to incorporate a
    presumptive 6-month limit on the detention of removable aliens.
    According to the Court, once an alien has been detained for 6
    months under the statute, he must be released unless the
    Government can establish that his removal is reasonably
    foreseeable.
        Four years later, the Supreme Court expanded the sweep of
    Zadvydas in Clark v. Martinez where it held that the 6-month
    limit applied to inadmissible aliens, those who never had any
    legal right to enter the United States in the first place.
        The Court concluded by acknowledging the public safety
    concerns raised by the Government and by inviting Congress to
    amend the statute. In fact, the Court noted that shortly after
    Zadvydas was decided, Congress passed the USA PATRIOT Act which
    authorized continued detention of aliens whose removal was not
    reasonably foreseeable and who presented a national security
    threat or had been involved in terrorist activities.
        Soon after Zadvydas was decided, Attorney General John
    Ashcroft expressed deep concern that the ruling threatened
    public safety. He said that many of the criminal aliens who
    would be set free as a result of the decision ``have extensive
    histories of brutal violent crime and pose a danger to
    society.'' He added that he was ``especially concerned that
    these criminal aliens may re-enter and prey upon immigrant
    communities in the United States.''
        The Attorney General's grim forecast has proven accurate.
    The impact of Zadvydas was immediate and substantial. One study
    found that in the 2 months following Zadvydas, 829 criminal
    aliens were released into the United States and thousands more
    have been released in the years that followed.
        The impact of Zadvydas continues today as the Department of
    Homeland Security is legally compelled to set loose individuals
    who are criminally violent and very likely to commit additional
    crimes once released. A 2007 audit conducted by the Inspector
    General of the Department of Justice found that out of a sample
    of 100 criminal aliens, 73 had an average of six arrests each
    after being released. According to the Inspector General, the
    study ``produced results that, if indicative of the full
    population of criminal aliens identified, suggest that the rate
    at which criminal aliens are re-arrested is extremely high.''
        Congress has the power to fix this problem. The Supreme
    Court has never denied Congress the constitutional authority to
    provide for extended periods of detention. Quite the contrary.
    The Supreme Court has invited Congress to legislate in this
    area and to amend existing law in a way that clarifies the
    circumstances under which extended detention is permissible and
    that specifies the procedures that the executive must follow in
    approving detention for longer periods.
        The proposed legislation will protect the American people
    by giving the Department of Homeland Security and the
    Department of Justice the legal tools they need to keep these
    dangerous predators off our streets. At the same time, the bill
    appropriately addresses potential due process concerns by
    narrowing the sweep of the statute to a small segment of
    particularly dangerous individuals. It provides for regular and
    individualized assessments of the need for continued detention
    by high-level officials within the Department of Homeland
    Security, as well as the opportunity to have those assessments
    reviewed by a Federal court.
        There can be no question that this bill will clarify the
    law. It will expressly vest the executive with powers necessary
    to keep dangerous aliens out of our communities, and it will
    make America safer.
        For all these reasons, I support the Subcommittee's efforts
    to address this critical public safety issue, and I look
    forward to your questions.
        [The prepared statement of Mr. Dupree follows:]

                                   __________

        Mr. Gallegly. Thank you, Mr. Dupree.
        Chief Baker?

            TESTIMONY OF DOUGLAS E. BAKER, CHIEF OF POLICE,
                         CITY OF FORT MYERS, FL

        Mr. Baker. Good morning, Mr. Chairman.
        In brief, if I could take you back to July 18th of 2008 at
    2 o'clock in the morning, a handful of police officers were on
    a foot patrol in the City of Fort Myers as businesses and
    establishments closed. One of our officers, Officer Andrew
    Widman, was dispatched to a domestic violence incident in which
    it gave the description of an individual who had been in a
    fight with his girlfriend. Officer Widman identified the
    individual, and as he walked across Main Street to step onto
    the Patio de Leon area, Mr. Arango pulled a 9 millimeter
    handgun from his waistband and shot Officer Widman once in the
    face, killing him instantly. Officer Widman never had an
    opportunity to defend himself or pull his weapon.
        Officer Widman left behind a wife and three children under
    5 years old. He was just completing his first year of service
    with the Fort Myers Police Department.
        When examining Mr. Arango and where he came from--in
    addition, officers from the police department engaged for the
    next 15 minutes in a gun battle with Mr. Arango, and Mr. Arango
    was subsequently shot and killed also in downtown Fort Myers.
        When we look at where Mr. Arango comes from and his
    background, in 1998 Arango was convicted and sentenced to a 6-
    year prison term for armed robbery and four 5-year terms of
    carrying a concealed firearm, burglary, two counts of grand
    theft. Immigration and Naturalization Services placed a
    detainer on Abel Arango for him to be detained by INS upon a
    release from prison.
        In 2000 or 2001 Arango was ordered to be deported back to
    Cuba after being sentenced for armed robbery in Florida. Abel
    Arango appealed his deportation order and the Bureau of
    Immigration Appeals denied his appeal, and his deportation
    order remained in effect.
        On March 1, 2004, upon being released from Krome Detention
    Center in Miami, Abel Arango was not detained by Immigration
    and Naturalization Services or Immigration and Customs
    Enforcement and was unleashed on the Florida citizens.
        On May 16, 2008, Abel Arango was arrested again and booked
    into the Lee County jail for five felony counts relating to the
    trafficking and sale and possession of cocaine. The filing
    within 24 hours, on May 17, 2008, Abel Arango was released from
    Lee County jail by posting a $100,000 surety bond.
        It takes us back to July 18, 2:30 in the morning after
    walking around of Lee County Justice Center at or around 2
    a.m., Abel Arango used a gun to violently and cowardly
    assassinate Officer Widman, a Fort Myers police officer.
        On May 9th of this year, Florida Governor Rick Scott signed
    into law the Andrew Widman Act which will enhance officers'
    safety by providing an additional blanket of security by
    authorizing a judge to issue a warrant for the arrest of a
    probationer or offender who has violated the terms of probation
    or community control and allow for the judge to immediately
    commit serious offenders on the likelihood that the person will
    be imprisoned for the violation.
        Had the judge been able to immediately charge Arango with
    the probation violation at the time of arrest, Officer Widman's
    murder may have been avoided.
        Three other officers in Florida were shot and killed since
    January under similar circumstances.
        We applaud House Judiciary Committee Chairman Lamar Smith
    for addressing the ruling and taking the steps he is taking to
    correct this injustice. I wholeheartedly agree with the
    Chairman Smith when he was quoted as saying, ``It is outrageous
    that thousands of dangerous immigrant criminals have been
    released to our streets. Just because a criminal immigrant
    cannot be returned to their home country does not mean that
    they should be freed into our communities. Immigrant criminals
    should be detained and deported.''
        We have a responsibility to our citizens, our legal
    residents, visitors, and law enforcement personnel to ensure
    that these dangerous criminal aliens are not allowed to re-
    enter into the communities within the United States of America.
    Deportation or detention must be adhered to rather than allow
    them to go free.
        Thank you for allowing me to have the opportunity to
    address the Committee.
        [The prepared statement of Mr. Baker follows:]

                                   __________

        Mr. Gallegly. Thank you very much, Chief Baker.
        Mr. Arulanantham?

              TESTIMONY OF AHILAN T. ARULANANTHAM, DEPUTY
              LEGAL DIRECTOR, ACLU OF SOUTHERN CALIFORNIA

        Mr. Arulanantham. Thank you, Mr. Chairman.
        As the Deputy Legal Director of the ACLU of Southern
    California, I have spent much of the last 7 years representing
    immigrants facing prolonged and indefinite detention by the
    Department of Homeland Security. My clients come from all
    around the world. Some fled persecution or even torture based
    on their race or religion. Others came here for economic
    reasons seeking a better way of life, and still others did not
    choose to come at all. They came as infants when their parents
    brought them here.
        But they have all had one thing in common. All were told by
    someone at some point along the way that America is a land of
    freedom and of opportunity. As the Supreme Court has stated it
    repeatedly, in our country liberty is the norm and detention is
    the narrowly limited exception.
        But today's bill threatens that American tradition because
    it would dramatically expand an immigration detention system
    that is already fundamentally broken. Although much of the
    discussion today has focused on people convicted of crimes,
    about half of the people in immigration detention have never
    been convicted of a crime or they were convicted of very minor
    convictions for which they received little or no jail time or
    very old convictions and have long since rebuilt their lives.
    About 84 percent of these detainees have no attorney to
    represent them, and thousands of them are detained for years at
    a cost of $45,000 per detainee per year to the taxpayer.
        The most serious problem with H.R. 1932 is that it would
    expand that detention under the system in two significant ways.
        First, the bill would reverse a number of Federal court
    decisions requiring the Government to provide bond hearings in
    front of immigration judges to people subject to prolonged
    detention while their cases are pending.
        And then second, as we have been discussing, the bill would
    give DHS vast new authority to indefinitely detain people
    convicted of ordinary crimes, crimes like writing a bad check
    or two petty thefts. The bill would permit their detention far
    beyond their sentences potentially for their whole lives, even
    if they can never be removed.
        Now, I have represented many good people who would not have
    won their release had this bill been the law. Take, for
    example, Ahilan Nadarajah, who shares my name. He is a young
    man I first met nearly 7 years ago. He came here fleeing the
    worst form of persecution, torture, at the hands of the Sri
    Lankan army during the height of that country's civil war. He
    arrived at our borders, applied for asylum, but spent the next
    4 and a half years in immigration detention. He repeatedly won
    his case, twice in front of the immigration judge and even in
    front of the Board of Immigration Appeals, but the Government
    kept him detained while it appealed his case. He lost half of
    his 20's in immigration detention. While other people finished
    school, got jobs, raised families, he sat there at $45,000 a
    year cost to the taxpayer.
        Now, I recognize that not all detainees are like him. Some
    may be extremely dangerous, and the Constitution permits the
    Government to detain people without trial for prolonged periods
    of time. But it allows such detention only under narrow
    circumstances where there is both a special justification for
    the detention beyond the general need to protect the public
    from crime and rigorous procedural protections designed to
    ensure that the detention is actually necessary.
        And that constitutional rule, Chairman, makes good sense.
    In our legal system, it is criminal prosecutors and judges who
    have the most knowledge about how to protect the public. If
    Ahilan or any other immigrant commits a crime, he can be
    prosecuted to the full extent of the law, and in the cases we
    have talked about today, a sentencing judge with the
    information available made a decision that a particular
    sentence was the appropriate sentence to protect the public.
        Now, in those rare instances where criminal prosecution is
    not sufficient, both the Federal Government and the States
    already have authority to indefinitely detain people or at
    least to detain them for prolonged periods of time if they have
    a mental condition that makes them especially dangerous. Sex
    offenders are detained under these laws in the current system.
    And when it comes to national security, Congress has passed
    legislation authorizing the prolonged detention of certain non-
    citizens as national security threats.
        But H.R. 1932 is not limited to such individuals. It
    authorizes prolonged detention for broad categories of non-
    citizens who have no convictions at all. It irrationally
    prevents immigration judges from even deciding whether their
    detention is necessary, and its indefinite detention provisions
    would authorize potentially permanent detention.
        Ahilan Nadarajah--I spoke with him last week. He would not
    have gotten out if this bill had been law. I spoke to him in
    English. He is doing really well. He has a driver's license. He
    has a job. He has a green card.
        I came here today for him and for thousands of other
    immigrants like him because they are protected by our
    Constitution too.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Arulanantham follows:]

                                   __________

        Mr. Gallegly. Thank you very much.
        At this time, I would yield to the gentleman from Texas,
    the Chairman of the full Committee and the sponsor of this
    legislation, for opening questions.
        Mr. Smith. Thank you, Mr. Chairman.
        Mr. Mead, let me direct my first question toward you. And I
    am looking at the most recent figures for the Zadvydas releases
    of criminal aliens, and I just want to confirm this is
    accurate. I have in fiscal year 2009 almost 4,000 criminal
    immigrants were released into our communities. Is that about
    right? I have 3,847.
        Mr. Mead. Yes, sir, that is about right.
        Mr. Smith. And is the figure for fiscal year 2010 accurate,
    3,882, almost 4,000 released then? And then for fiscal year
    2011, we are on track to maybe even exceed 4,000 criminal
    immigrants released into our communities.
        Mr. Mead. Yes, Congressman, that is correct.
        Mr. Smith. The way I figure it, considering the recidivism
    rate is about 40 percent and those are just the ones who are
    convicted again, we have thousands and thousands of crimes
    committed every year that arguably don't need to be committed
    if, in fact, we detain these individuals for longer in prison.
    Is that accurate?
        Mr. Mead. Yes, sir. I would just like to say that one of
    our highest priorities is to apprehend and remove criminal
    aliens who pose a threat to our communities, and every decision
    that we make, whether it is initial detention or detention
    under Zadvydas, is based on a full examination of their
    criminal history. And one of the things we do consider is----
        Mr. Smith. My point is that there are thousands of
    additional crimes committed every year that could be prevented
    were these individuals detained.
        Mr. Mead. That could be true, sir, yes.
        Mr. Smith. Thank you.
        Mr. Dupree, let me ask you. You have studied the bill,
    looked at the language. Do you feel that the bill is
    sufficiently broad to prevent some of these crimes from
    occurring, yet sufficiently narrow as to be constitutional?
        And before you answer your question, I know we have had a
    Member of the full Committee say this morning that there was no
    judicial review. If individuals will look on page 14 of the
    bill, they will find a judicial review.
        But in any case, what is your opinion of the bill, again
    broad enough to prevent the crimes, narrow enough to be
    constitutional? What do you think?
        Mr. Dupree. I think the bill strikes an appropriate
    balance. On one hand, there is no question that this bill will
    make our country safer. As you noted a moment ago, there are
    crimes that will be prevented if this bill passes. This bill is
    targeted at an exceedingly narrow segment of particularly
    dangerous offenders. Those people will be kept off our streets.
    Our communities will be safer as a result.
        On the other side of the coin, the bill contains
    appropriate procedural protections. It allows for Federal court
    review. It allows for individualized assessments of
    dangerousness by a high-level DHS official, and it sweeps
    narrowly. One of the concerns the Supreme Court expressed in
    Zadvydas was that the statute, as it currently exists, could be
    construed to sweep broadly and could encompass, for example,
    people who overstay a tourist visa. This bill is much more
    narrowly targeted. It focuses on individuals who have committed
    violent crimes, who are likely to commit violent crimes in the
    future, or who should be detained for another special
    circumstance or particularly compelling reason.
        Mr. Smith. Thank you, Mr. Dupree.
        Chief Baker, thank you for being here. I appreciate what
    you and your department have been through recently.
        I am curious in regard to the released criminal immigrants.
    We are talking about 4,000 a year, and I know you have had
    several tragedies occur in Florida as a result of the release
    of these types of individuals. Is there any tracking system
    available today? And in your opinion, if there is not, could a
    tracking system be implemented whereby you could access a
    Federal database or be alerted to the presence of these
    individuals?
        Mr. Baker. Within the City of Fort Myers, we track every
    prisoner releasee as they return to the city. We meet with
    their probation officer--and this is on the Federal, State, and
    even on the county--examining whether or not they are living up
    to the conditions or standards of their probation and then to
    provide them other social service direction that they can do to
    better their lives and not to return to a life of crime.
        In recent, we know of about 900 illegal aliens that have
    been involved in criminal activity that have been sentenced and
    returned up and down our area of the coast of Florida, our
    southwest Florida area. So we know that we have individuals
    that do fit that capacity. And within the city limits, we do
    monitor their activity to ascertain whether or not they fit
    that parameter--they are following their probation conditions.
        Mr. Smith. Let me also ask you--I assume you think this
    bill would help prevent some of those crimes from occurring.
        Mr. Baker. I am sorry. I had a hard time hearing you.
        Mr. Smith. You feel that this legislation would help
    prevent some of those crimes from occurring.
        Mr. Baker. Yes, sir, I do. You know, what we are looking
    here is from a standpoint of prevention. We are trying to
    reduce or eliminate future victims and future crimes. It is
    unfortunate, obviously, from our circumstances on our loss of
    Officer Widman, but we believe if this bill would have been in
    place, it would have greatly enhanced Officer Widman's outcome
    because the individual would not have been out on the streets
    to begin with. And when we look at other violent crime that
    occurs--and I will speak specifically within Fort Myers, but we
    are not unique. That violent crime occurs across the country in
    every community, and our goal is to provide safe measures to
    our communities and to our police officers that they go out and
    risk their life each and every day. So I believe that this
    would greatly enhance our safety and the community's safety.
        Mr. Smith. Okay, thank you, Chief Baker.
        Mr. Baker. Thank you, sir.
        Mr. Smith. Mr. Arul, a question for you. You have mentioned
    several times in your testimony a minute ago that it costs
    $45,000 a year to detain some of these individuals. I do not
    know if it is $45,000 or $37,000, but it is many thousands of
    dollars.
        Don't you feel that the widow of Officer Widman would be
    happy for the Government to spend $45,000 to have prevented the
    death of her husband? As far as that goes, I suspect she would
    have been happy to have spent $45,000 of her own money to
    prevent the death of her husband who was an officer in the Fort
    Myers police force.
        So it seems to me that we may make a mistake by putting a
    price on it rather than valuing what a life is worth. And I
    would only suggest to you that again it may be cheap for the
    price to detain some of these individuals who go on and commit
    all the type of horrific crimes that you and I could cite.
        But let me ask you a question. And that is, in your
    testimony you mention that under this bill, it gives indefinite
    power to detain individuals. I know you are familiar with the
    legislation. I don't think we give indefinite power. We talk
    about very limited special circumstances. Don't you think it is
    possible that the Supreme Court would hold that because those
    special circumstances are sufficiently narrow, that it might be
    constitutional?
        Mr. Arulanantham. Thank you, Mr. Chairman. Let me answer
    the second part first.
        The bill authorizes the potentially indefinite detention of
    people who committed aggravated felonies. On page 9 to 10 is
    where it is. That category sounds bad, but you don't have to
    either have a felony and it does not have to be aggravated to
    be an aggravated felony under the immigration law.
        Mr. Smith. And in any case, there is judicial review
    possible after 6 months.
        Mr. Arulanantham. Judicial review is a separate question,
    Mr. Chairman. The question is you can be indefinitely detained
    for, for example, writing a bad check or failing to comply with
    a court order or two petty thefts or tax evasion. I mean, all
    of these can be aggravated felonies under the immigration law,
    and so the DHS would have the authority under this bill to make
    the determination that such individuals could be detained
    indefinitely. And that I think is not consistent with Zadvydas.
        To go to your other point, Mr. Chairman, I feel awful when
    I hear that story. You know, I feel awful about it. Of course,
    I would certainly pay that amount of money to prevent a death
    unnecessarily.
        But the question is what kind of procedures have to be in
    place to make sure that this doesn't happen and----
        Mr. Smith. Let me just acknowledge I think you and I have a
    different philosophy on that. To me, we have, because of
    judicial review, an out for individual cases as you just
    mentioned. But beyond that, it just seems to me that
    considering the thousands of preventable crimes that occur
    every year, including the murder of police officers, that we
    ought not be so concerned about the $45,000 a year. We ought to
    be more concerned about the safety and lives of innocent
    Americans.
        I am not denying that you don't care--or I am not
    suggesting that you don't care about innocent Americans and the
    lives of innocent Americans. I am just simply saying I think
    the bill does what it is intended to do, and that is to prevent
    some of these tragedies from occurring. But I understand your
    point of view as well
        Thank you, Mr. Chairman. Am I the Chairman?
        I think Chairman Gallegly has left, and since I am the last
    Member standing and since we are due on the House floor
    momentarily, we will need to recess for an hour. Thank you all
    for your patience and I hope a number of Members will return in
    about an hour. And we stand in recess.
        [Recess.]
        Mr. Gowdy [presiding]. The Committee will come to order.
        I want to thank our four witnesses for your patience. It is
    not usual for us to have a joint session and such an honored
    speaker as Mr. Netanyahu. So thank you for indulging us.
        Without further ado, I will recognize the gentlelady from
    California, Ms. Lofgren.
        Ms. Lofgren. Thank you very much. Let me join in our
    apologies to the witnesses. Certainly we don't often have a
    joint session of Congress, and it was important that all the
    Members be present for the Prime Minister of Israel, who gave a
    terrific speech by the way.
        You know, I want to explore a little bit about the court
    decisions and the people involved. We have heard of horrific
    cases where people--for example, the officer. I mean, that is a
    terrible thing. But this bill does not target criminals I
    think.
        Mr. Arulanantham, your testimony was that individuals who
    had not committed any criminal offense would be caught up in
    this type of situation. Do you think that having reviewed the
    cases, that the bill would authorize or mandate prolonged
    detention without a bond hearing? And would that possibly
    satisfy the Court, the due process requirements in the
    Constitution in your judgment?
        Mr. Arulanantham. Thank you, Congresswoman. You did hear me
    correctly about that. Portions of the bill concerning prolonged
    detention, which are sort of farther down in the legislation--
    but they are there--would authorize the--would reverse a set of
    Court decisions that have required that when you have a
    prolonged detention, while a case is pending, the simple
    requirement that the person get a bond hearing in front of an
    immigration judge to be considered for release, that that
    requirement then would no longer be in place under this bill.
        So, yes, for example, I had dinner last Sunday--it was 2
    days ago--with a Christian minister from Indonesia who was my
    client. He was detained for 2 and a half years until the Court
    decision ordered his release on bond while his case was
    pending. He has now won his motion to reopen. He was never
    convicted of any crime certainly.
        There are other examples in my testimony. There was a
    Tibetan monk named Lobsang Norhbu. He was detained about 10
    months, obviously also never convicted of any crime, not a
    dangerous individual, not a risk of flight. But under the bill,
    he would not have a right to a bond hearing in front of an
    immigration judge. Just to get your day in court, do you have
    to lock me up while my case is pending? And of course, they can
    often take years. So that is a very serious problem under this
    bill. It has really nothing, in a sense, to do with the
    terrible cases that we are discussing today, but this bill
    would result in the detention of those people for prolonged
    periods of time at great taxpayer expense.
        Ms. Lofgren. I am interested, Mr. Baker, whether we can--I
    assume that you are not necessarily in favor a Christian
    minister who has not committed a crime being held for 2 and a
    half years without bond or review. I don't want to put in your
    mouth, but I assume that is not what you are seeking here.
        Mr. Baker. You would be correct on that.
        Ms. Lofgren. So I am wondering whether we couldn't narrow
    this in such a way that we really target the kind of people you
    are talking about that pose a threat to us. What are your
    thoughts on that? What would you advise on that?
        Mr. Baker. My focus here--my understanding from my presence
    here--is to put a face and name of some of the victims that
    have been victimized to the point of murder of police officers.
        Ms. Lofgren. And you have done that very well, and it is
    important that you did do that.
        Mr. Baker. That is what my focus is. You know, even before
    coming here, my idea is to hold those accountable that need to
    be held accountable. And I can certainly understand several of
    the individuals the gentleman here to my left has talked about.
    That is not my focus or my purpose. My focus and purpose is
    hold those individuals accountable for their criminal acts that
    they hold against law enforcement and the communities,
    obviously, that we serve.
        And I am sure that position that you hold as well, you are
    fully aware of these types of incidents. They are not special
    to Fort Myers. They are across the country. And the level of
    accountability needs to be there so that these individuals do
    not come back out and continue with a life of a crime and
    continue with violent acts toward us.
        Ms. Lofgren. Right.
        Mr. Mead, one of the concerns that we have is that there
    are nations that simply won't accept back their nationals when
    there has been an order for removal. And right now, all we have
    got is a blunt instrument where we could eliminate all visas
    for that country. But then you end up punishing Americans. I
    mean, you have got an American who is married to somebody from
    that country. You know, it is really hard. Well, we don't use
    that tool because it is too blunt an instrument.
        One of the things, when I was on the Homeland Security
    Committee, that we talked about was making--the State
    Department would have to do this, not Homeland Security because
    it is a diplomatic issue, but to make the visa removal system
    for diplomats only so that we wouldn't be hurting Americans who
    are trying to get their husband or wife in or the like, but we
    would actually catch the attention of a foreign nation. What do
    you think about that as a possible idea? Maybe I can't ask you
    if that hasn't been cleared by OMB. But does the Department
    have a position on that?
        Mr. Mead. Well, I think the new MOU with Consular Affairs
    at State gets right at what you are suggesting, and that is to
    have a graduated process that begins with demarche, moves to
    direct conversation with ambassadors, then considers visa
    sanctions, whatever they turned out to be, followed by
    financial sanctions. So to that extent, I certainly agree that
    we need to not, as you said, use a blunt instrument approach to
    this, that we need to follow a process that makes sense to
    everyone. And I think the new MOU does that and the fact that
    it also sets as a target a 30-day average time for issuing
    travel documents gives us a nice benchmark to work against.
        Ms. Lofgren. Have we used that new MOU yet? Or it is too
    new?
        Mr. Mead. Well, actually we have done some things pursuant
    to it. There have been meetings between Director Morton and the
    State Department with officials from Bangladesh. That has
    produced five travel documents already. That is within the past
    couple of weeks. We have seen some positive results already
    with Pakistan, and just last week we had some very good results
    out of China where they have agreed to pilot electronic travel
    documents, use a standard application for travel documents, and
    even consider charter flights to return multiple people rather
    than what we do now, which is one individual at a time. So I
    think that having the joint effort with State, having a clear
    set of principles in the MOU will help us considerably as we
    move forward.
        Ms. Lofgren. I would ask the indulgence of the Chair for an
    additional quick minute, if I could.
        I raise this issue because it has been raised to me
    repeatedly by diplomats and others where we deport gang
    members. I am not against that. I am for that. But we don't
    always notify or prepare the receiving country. I mean, they
    are not arguing that we shouldn't deport gang members. We all
    want to do that. But without adequate notice to the receiving
    country, it has caused some crime problems in their own
    countries. And I am wondering if there is a way to notify or
    work with, for example, some of the Latin American countries
    now have a huge gang problem that they didn't used to have that
    has really been exported from the United States--whether there
    is an ability to articulate this more carefully with receiving
    countries.
        Mr. Mead. It is an issue that we are very concerned about,
    particularly as we move toward more criminal aliens, and
    particularly in terms of Central America, we do have very
    specific requirements for each country in terms of what
    criminal history information they require, how much notice they
    need in terms of gang members coming back, and we also make
    available to them all of the appropriate information when they
    interview their potential citizens for return. So you are
    correct. We do have an obligation to provide that information,
    and we try to do that.
        Ms. Lofgren. Thank you, Mr. Chairman, for the additional. I
    have been wanting to ask that question for quite some time.
        Mr. Gowdy. Yes, ma'am. Thank you.
        The Chair will recognize himself.
        Chief Baker, first of all, thank you for your service, and
    if you would be gracious enough to let Officer Widman's widow
    and three children know that they have our continuing, undying
    appreciation for the sacrifices that he made for our public
    safety. If you would let them know that all the way to South
    Carolina and Washington, how grateful we are and his family.
        Mr. Baker. Thank you for your comments, and I will be sure
    to contact Mrs. Widman, as well as his parents.
        Mr. Gowdy. Thank you, Chief.
        Mr. Dupree, for those who may not be as intimately familiar
    with the process, assume for the sake of hypothetical that an
    alien is convicted in State or Federal court, a sentence is
    imposed, and that sentence is satisfied. What happens?
        Mr. Dupree. Once he's done, in many cases detention
    jurisdiction will shift from the State or Federal correctional
    authorities and he will be held in immigration custody. At some
    point during this process, in all likelihood, he may be put in
    removal proceedings. If and when that happens, there is a
    timetable concerning how quickly the Government is obligated to
    actually remove that alien from this country under the Zadvydas
    decision that we have been discussing as well as the relevant
    statutes. In some cases, the Government is able to effect the
    removal of those aliens very quickly. In other cases, it can
    take longer for a number of different reasons, including the
    difficulties that historically we have encountered with
    repatriation from some countries.
        Mr. Gowdy. Mr. Mead, I am looking at the list of countries
    that have been difficult to work with with respect to accepting
    back their citizens who commit crimes in our country. Can you
    tell me specifically, for instance, what is being done in
    Cambodia?
        Mr. Mead. I can't speak specifically to Cambodia today, but
    all of those countries are countries that under the new MOU
    with State we will pursue this graduated approach and Cambodia
    would certainly be one that we would begin this effort to
    either use demarches, use conversations with the ambassadors
    and the like to move toward better issuance of travel
    documents.
        Mr. Gowdy. All that is great and wonderful and I am a huge
    fan of conversations. I am more of a fan of consequences. So at
    what point will we begin to impose consequences on countries
    who either receive foreign aid or wish to have a relationship
    with our country when they don't accept their citizens back who
    have victimized our citizens? At what point will it move beyond
    a memorandum of understanding or memorandum of agreement and a
    conversation to real consequences? How quickly are we going to
    get there?
        Mr. Mead. It is hard to put a date on that in terms of
    number of days, but that would be something that would be
    determined jointly between the Department of Homeland Security
    and the Department of State as to when, as you said, we moved
    past demarche or conversation with ambassadors to visa
    sanctions and aid sanctions.
        Mr. Gowdy. Are you in favor of expediting the conversation
    so we can get more quickly to the consequences?
        Mr. Mead. I am in favor of doing whatever we can do to
    increase the issuance of travel documents because ultimately
    that is the way to remove criminal aliens from the country that
    historically have been difficult to remove.
        Mr. Gowdy. Well, it seems like some of these countries do
    either have relationships with us or aspire to have
    relationships with us. I find it befuddling why that would not
    be a condition of a relationship, that you actually take your
    citizens who commit crimes against our citizens back to your
    country.
        Mr. Mead. And I agree that we need to work with them to
    make sure that they honor their international obligations.
    Every country has an obligation to take back their citizens.
        Mr. Gowdy. Which brings me, Mr. Arulanantham--is that
    close?
        Mr. Arulanantham. Very close.
        Mr. Gowdy. That is probably as close as I am going to get.
    So I will stop there.
        Let's assume, for the sake of argument--and there is an
    argument--whether or not Somalia is a country as opposed to
    just a collection of gangs. Assume Somalia is a country. Assume
    a Somali commits a crime in South Carolina or California, that
    that Somali is convicted, serves a sentence. What would you
    purport to do with that Somali after the execution of that
    sentence?
        Mr. Arulanantham. Well, I think as the Supreme Court's
    decision in Zadvydas makes clear, if the person cannot be
    deported, which I take it is the premise of your question--I
    mean, we should make whatever efforts we can to deport the
    person. I too support what you have been talking about. The
    Supreme Court has said, for example, that they don't even have
    to have a government in order to deport them to Somalia. That
    was the decision of the Supreme Court several years ago in case
    called Jama.
        But assume that they cannot be deported. The decision makes
    clear that you can release the person on an order of
    supervision which can be quite intensive. They can wear an
    electronic monitor. They can be forced to appear on a very
    regular----
        Mr. Gowdy. I hear you, but I have yet to see an electronic
    bracelet that is going to deter someone who is hell-bent on
    committing another criminal offense. I just think that is--that
    is wonderful in an academic setting. It just doesn't work in
    the real world. So what, beyond staying in this country--if a
    country won't accept them back and we don't want them here,
    what do you purport? What is your version of Mr. Smith's bill?
        Mr. Arulanantham. Mr. Representative, the Supreme Court
    yesterday affirmed a decision. Justice Kennedy wrote the
    opinion.
        Mr. Gowdy. I am well aware of it.
        Mr. Arulanantham. And it orders the release of something
    like 37,000 people.
        Mr. Gowdy. Despite Congress specifically telling the courts
    to consider public safety as a factor in reaching those
    decisions, you are right. They have released close to 40,000
    prisoners in California. I am aware of that.
        Mr. Arulanantham. So view about that is Justice Kennedy
    really believed that the Constitution constrains what you could
    do in the name of public safety in that context. I would say
    here you have got thousands of citizens--1.6 million citizens
    and non-citizens incarcerated today in the criminal system as a
    whole, all the different criminal systems. Right? And those
    people, when they commit the same crimes that your hypothetical
    Somali commits, when they are done, we put them on probation or
    parole or whatever it is, and eventually we release them back
    into society one way or another.
        Mr. Gowdy. They are citizens. Right? I mean, you are not
    arguing for the same system for non-citizens as citizens, are
    you?
        Mr. Arulanantham. I am not, Mr. Representative, except to
    say that in the public safety problem, which is your
    fundamental concern and a concern that I recognize and think is
    absolutely important in this context----
        Mr. Gowdy. What is your proposed solution? What is your
    proposed solution? Mr. Smith has come up with a proposed
    solution. You don't like it. What is your proposed solution?
        Mr. Arulanantham. My proposed solution would be----
        Mr. Gowdy. Electronic monitoring?
        Mr. Arulanantham. No. My proposed solution, Mr.
    Representative, would be to implement detention to the extent
    that the Constitution permits it. In the Constitution, it is
    well laid out. The Constitution permits the detention of people
    if they are specially dangerous and----
        Mr. Gowdy. What was the vote in the California case? Do you
    recall?
        Mr. Arulanantham. I believe Justice Kennedy is the fifth
    vote.
        Mr. Gowdy. It was a 5 to 4 decision. So I am reluctant to
    assign lots of constitutional gravity when this Supreme Court
    continues to splinter on 5 to 4 votes. In South Carolina, we
    don't have a speedy trial act. Is the Due Process Clause
    implicated if we hold somebody, detain somebody for 12 months
    prior to trial? Is 90 days the maximum?
        Mr. Arulanantham. I cannot speak to it in the criminal
    system, Mr. Representative. I can say that we are talking about
    people held for years in many cases who have either committed
    no crime or have committed only very old convictions.
        Mr. Gowdy. What if we gave them a bond hearing and applied
    the same bond analysis that we do with United States citizens:
    a danger to the community and flight risk? And they just have a
    bond, but they can't reach the bond because it is set at half a
    million dollars. Would that satisfy it?
        Mr. Arulanantham. It is a case-by-case situation about
    whether bond amounts may become unreasonable even under the
    regular Federal system. That is a question that is analyzed
    under the Bail Reform Act.
        I do believe that for prolonged detainees, all the
    Constitution would require would be the same criminal bond
    system that we have in regular criminal cases. If you just
    implemented that--you know, in that system you get in at about
    48 hours. In a few days you get that hearing.
        Mr. Gowdy. But I am talking post-adjudication. I am talking
    about after the crime has been committed. Lots of States,
    including the Federal system, doesn't have parole anymore. So
    there is no apparatus by which to monitor people who have
    already executed their sentence.
        Are you advocating for the same analysis for citizens as
    non-citizens?
        Mr. Arulanantham. I think we are talking about two slightly
    different things here. But for people whose sentences are over
    and if they were a citizen, they would be released back onto
    the street----
        Mr. Gowdy. Right, with no conditions.
        Mr. Arulanantham. Right. My point is just even under
    existing law, under Zadvydas, we can release that same person
    if they are a non-citizen with more supervision and more public
    safety protections than we can if they are a citizen.
        Mr. Gowdy. My question is how do we get them back to their
    country of origin.
        Mr. Arulanantham. And to that, other than telling you what
    I think the constitutional constraints are, my solutions are
    only what Mr. Mead had said, to negotiate with those countries
    and to take whatever diplomatic and foreign policy steps we can
    take to ask those countries to accept their nationals back.
        Mr. Gowdy. Where does public safety factor into your due
    process analysis?
        Mr. Arulanantham. It is one of the considerations which the
    Supreme Court says is very important in deciding when you can
    detain people after a sentencing judge has already decided,
    right, that they should only be sentenced to a certain amount
    of time.
        But my point is just that that safety consideration is
    important, but it is not like you are more dangerous because
    you are a non-citizen. That doesn't make you more of a threat
    to public safety. Right? You have committed the crime you have
    committed. Now we know either you are likely to recidivate or
    you are not, and there are a bunch of factors that go into
    that. And that doesn't change whether you are one or the other.
    Of course, we should deport people if they flout our
    immigration laws. For sure, we should. But if you can't, the
    Constitution doesn't allow you to lock the person up forever
    for their whole life just because they are a non-citizen,
    whereas if they were a citizen, you would have to let them go
    back to the street. So in our view it is just what the
    Constitution demands.
        And you are right, Mr. Representative, that Brown is 5-4,
    but the analysis in Zadvydas rests on a long line of cases. It
    is not like the idea that you can indefinitely detain people
    after their sentence is over. It is like a new idea for five
    Justices of the Supreme Court. I mean, it is a set of cases
    over time that have established that rule. It is a basic,
    fundamental principle in our constitutional system that after
    your sentence is done, when the sentencing judge has decided,
    then----
        Mr. Gowdy. Well, let me say this because my time is up. The
    system we have now is woefully broken. Representative Smith has
    come up with a way to fix it that I think is laudable, and I am
    always amazed--and I am not talking about you specifically--at
    the folks who aspire to shoot holes in other people's ideas and
    don't come to the table with their own.
        And with that----
        Ms. Lofgren. Mr. Chairman, may I be recognized for a
    unanimous consent request?
        Mr. Gowdy. Sure.
        Ms. Lofgren. I have a series of letters and statements for
    the record prepared for today's hearing. There are so many that
    I won't read them all. But nearly 100 immigration and
    constitutional law professors and scholars, as well as the
    Constitution Project and the American Immigration Lawyers
    Association, religious organizations such as the U.S.
    Conference of Catholic Bishops, Lutheran Immigration Refugee
    Services, and the Hebrew Immigrant Aid Society, civil liberties
    groups such as the Leadership Conference for Civil and Human
    Rights, and the League of United Latin American Citizens,
    refugee organizations, human rights groups, and immigration
    advocacy organizations. And I would ask unanimous consent that
    their statements and letters be made a part of the record.
        Mr. Gowdy. Without objection.
        [The information referred to follows:]

        Mr. Gowdy. The Chair would now recognize gentlelady from
    Texas, Ms. Jackson Lee.
        Ms. Jackson Lee. I thank the Chair.
        And I am very intrigued by the Chairman's bafflement and
    desire to find a remedy. And I would say to the Chair that what
    I have gotten from Mr. Arulanantham's commentary is, without
    him saying it, that America is different and that we have the
    responsibility to respond to the needs of Chief Baker. And none
    of us here are asking to eliminate deportations, those who are
    in the midst of deportations.
        But when we look at the good efforts of my friend from
    Texas, sometimes good efforts are not good enough. And frankly,
    what we have is what we call in Texas a lassoing by horseback
    and with one of our profound, talented cowboys and just
    rounding up everyone and anything. I don't think that is the
    American way. We are here to ensure that America is safe, that
    our law officers do not have to be subjected to reckless,
    violent actions of individuals that have been in detention and
    possibly in removal proceedings. And I believe there is a way
    of finding a reasoned balance.
        Mr. Mead, let me ask you. What are you doing? You have got
    two decisions, the Fifth Circuit and the Ninth Circuit. What
    are you doing right now in terms of your detention? Do you have
    people in detention?
        Mr. Mead. In the Fifth Circuit?
        Ms. Jackson Lee. Do you have people in detention, yes, in
    those areas and outside those areas?
        Mr. Mead. Yes, we have people in detention in the Fifth
    Circuit.
        Ms. Jackson Lee. And what is the block that you now have
    with the decision that is in place?
        Mr. Mead. In that particular circuit, the special
    circumstances that would allow us to detain people beyond the
    180 days don't apply.
        Ms. Jackson Lee. So what is your response?
        Mr. Mead. Well, we up to that point continue to try and get
    a travel document for those people and remove them and at that
    point that we would have to release them, we put whatever
    controls on them we can, as was discussed, electronic
    monitoring, regular reporting, and during that time also
    continue to try and get travel documents.
        Ms. Jackson Lee. So you don't stop your work of trying to
    remove these individuals from the country.
        Mr. Mead. No, ma'am, we do not.
        Ms. Jackson Lee. Though I am not applauding necessarily the
    decision of the Fifth and Ninth Circuits, but you are also
    anxiously moving quicker in terms of trying to move the
    document process along.
        Mr. Mead. Well, I don't know that we move quicker because
    in all cases we move as quickly as we can. Our goal is not to
    detain people. Our goal is to remove them. And so we move as
    quickly----
        Ms. Jackson Lee. Well, let us just say that you are
    persistent and determined. Is that correct?
        Mr. Mead. Yes, ma'am, we are persistent and determined.
        Ms. Jackson Lee. You said something in your testimony that
    said that ICE is not in the business of holding detainees for
    an indefinite time. My assessment of this legislation would
    cause you to hold detainees with lesser offenses, theft,
    receiving stolen property. Is this going to be an effective
    utilization of your resources? Do you have the necessary
    detention, if you will, infrastructure to be able to now
    expand? Rather than giving you the authority that you wanted
    before, now it is expanding what your jurisdiction is. It is
    now going to all of these lesser offenses that you will be
    holding persons for, not allowing them to have a bond under
    this legislation.
        Mr. Mead. Congresswoman, I can't comment on the
    legislation, but I can tell you that the number of detention
    beds we have is finite, as appropriated by Congress, and as a
    result, we do prioritize the use of them, beginning with people
    that pose the greatest threat and pose the greatest risk of
    flight. So that is how we handle them.
        Ms. Jackson Lee. And that is a common sense approach.
        Let me go to Mr. Arulanantham and help you--not that you
    need helping out, but let me just pointedly say are you, in
    essence, insensitive to the need to provide detention and the
    deportation process. You are aware that there is a process in
    place that is a legitimate process. Is that correct?
        Mr. Arulanantham. Absolutely.
        Ms. Jackson Lee. Then how undermining is this legislation
    when it comes to both our constitutional premise, what we are
    guided by, even though these individuals are non-citizens, but
    also just the plain sense of detaining people indefinitely, no
    judicial intervention, people with mental illness having no
    ability for treatment, individuals traveling with their
    families who are children, no seemingly exemptions made for
    them? How unrealistic and how troublesome is this when it
    relates to the constitutional premise of due process?
        Mr. Arulanantham. Thank you, Representative.
        The Due Process Clause says it applies to all persons, and
    there is no question that the people that we are talking about
    today are persons under the Due Process Claus. So there are two
    ways in which the bill really fundamentally undermines those.
        And the first is that it allows, while a person is going
    through the deportation process and may have a very good
    argument that they should not be deported--they may ultimately
    win their case. While that process is going on, this bill makes
    it, in many cases, impossible for them just to get a day in
    court on do I have to be locked up while I am going through my
    case. And so people get detained for years while their cases
    are pending, and they don't ever get a bond hearing. And that
    applies to people who have no criminal convictions at all.
        Ms. Jackson Lee. Sometimes it is difficult for them to have
    counsel for those bond hearings. Many do not have, and in
    detention there is not a procedural requirement for them to
    have a lawyer.
        Mr. Arulanantham. That is right. And 84 percent, according
    to a study from a couple of years ago, do not--of the detained
    population, do not have a lawyer.
        Ms. Jackson Lee. And we are certainly not talking about
    Osama bin Laden's cousin, the level of intensity that we are
    speaking about right now.
        Mr. Arulanantham. No, and some of the people are people I
    talked about earlier. My client was detained 2 and a half
    years. He is a Christian minister. You know, there is a
    Senegalese information systems--a variety of people who have no
    criminal history at all or only extremely minor crimes.
        And the second way it does is it authorizes the potentially
    permanent detention. This is the second issue that we have been
    discussing. And under this bill, it includes a lot of people
    who have been convicted of very ordinary offenses. Again, we
    are not talking about terrorists or people who have committed
    very, very serious crimes.
        I think this goes back to the question, Representative
    Gowdy, you were asking me. Let me see if I can do a little bit
    better to give you an alternative.
        Ms. Jackson Lee. I will allow you to expand on that.
        Mr. Arulanantham. I appreciate that.
        All of the States have civil commitment systems, and those
    have been upheld--they have not all been upheld but several of
    them have been upheld in the Supreme Court--for the detention
    of people who are specially dangerous, but with very rigorous
    procedural protections.
        So, for example, you were discussing this Fifth Circuit
    case, Representative. My understanding of it--I did not
    represent that person. The ACLU did. My understanding is that
    after the Government lost that person's case, he was detained
    in the civil commitment system in Massachusetts. Now, I haven't
    followed up to know what happened yesterday, but that is my
    understanding from----
        Ms. Jackson Lee. So there was an alternative.
        Mr. Arulanantham. Right. So all of the people described in
    the bill could be referred to State civil commitment systems.
    Those systems have been--like I said, I won't say every single
    one, but they have been upheld by the Supreme Court as a
    general matter in a couple cases out of Kansas. And if they
    qualify for civil commitment, they can be held under that
    system.
        But the bill authorizes the indefinite detention of a lot
    of people who are not very dangerous and probably wouldn't get
    detained under those systems. And that is the other reason why
    it is unconstitutional.
        Ms. Jackson Lee. Mr. Chairman, can I just ask indulgence
    for him to answer my question about what the bill would do for
    individuals who are experiencing mental illness or those
    families who have children under 18 who may be in that process
    and unaccompanied. There seems to be no provisions or relief if
    people are in those conditions or no required treatment if you
    are in that condition and you indefinite extension of your
    detention, and then there doesn't seem to be an exemption for
    families with children that may be in an indefinite detention.
        Mr. Arulanantham. That is correct, Representative. So, for
    example, Warren Joseph, who is a person I talk about in my
    written testimony. He was a veteran of the Gulf War, a
    decorated veteran of the Gulf War. And he had PTSD. He was
    convicted of a firearms offense. In the original conviction, he
    wasn't sentenced to any time. But that conviction made him
    deportable. And he was eligible for release, and he ultimately
    won that release. So he won his immigration case, but it took 3
    years for that case to go on. And that Gulf War veteran spent 3
    years in immigration detention while he was fighting his case.
        And the courts have now--there is a growing consensus in
    the Federal courts that that is unlawful. It violates the Due
    Process Clause because if you are going to be detained for that
    long, you should get a bond hearing. But this bill would
    reverse those.
        Ms. Jackson Lee. And children as well.
        Mr. Arulanantham. Yes, similarly no special provision for
    them either.
        Ms. Jackson Lee. I thank you. I think we should studiously,
    Mr. Chairman, look carefully at this legislation.
        I yield back.
        Mr. Gowdy. I thank the gentlelady from Texas.
        And the Chair would recognize the Chairman of the full
    Committee, the gentleman from Texas, for any concluding
    comments or questions he may have.
        Mr. Smith. Thank you, Mr. Chairman. I asked my questions
    earlier.
        But Mr. Arul, I had one more question for you. Are there
    any criminals, perhaps a mass murderer or a serial rapist, whom
    you would support being detained indefinitely or, say, in a
    series of 6-month periods, which is allowed under the bill?
        Mr. Arulanantham. Yes. In the sense, Representative, the
    Supreme Court in two cases, Kansas v. Hendricks and Kansas v.
    Crane, has upheld the constitutionality of the prolonged
    detention, under certain rigorous procedural protections, of
    people who are specially dangerous. You have to look at a
    particular case to see if it fit those rules, but that is
    constitutional. The Supreme Court has upheld it and we would
    have no----
        Mr. Smith. Let's just take those examples. So you would
    support detaining a mass murderer or a serial rapist
    indefinitely?
        Mr. Arulanantham. They would have to meet the criteria set
    forth in those cases. But if a person was specially dangerous
    and met the criteria in those cases----
        Mr. Smith. So at least there are some instances where you
    would support indefinite detention. You don't have an absolute
    stand that no, never.
        Mr. Arulanantham. Yes. The Supreme Court upheld----
        Mr. Smith. I think the answer is yes. Okay, thank you.
        Ms. Lofgren. Mr. Chairman, since we are doing afterthought
    questions----
        Mr. Gowdy. Yes, ma'am. The Chair would recognize the
    gentlelady from California for any concluding remarks she may
    have.
        Ms. Lofgren. As I look at the list of countries, I couldn't
    help but notice that more than half of the people who have not
    been deported are from Cuba. People can have different
    viewpoints about that, but I do notice that we don't have
    diplomatic relations with Cuba and that there is a strong
    contingent of Congress that dramatically opposes opening the
    door to diplomatic relations with Cuba. So I think that is a
    major impediment to the deportation problem that we are
    discussing today. I just thought it was important to note that.
        And I know that the Chairwoman of the Foreign Affairs
    Committee--I don't know what she thinks about this bill, but I
    do know what she thinks about Cuba, and she is not in favor of
    having diplomatic relations with Cuba. So I think we just need
    to state that that is a big part of this whole issue.
        I just wanted to finally comment that we have taken some
    steps, it sounds like, that were, frankly, far overdue in terms
    of forcing these countries to act. So I think it is worth
    noting that this new memorandum of understanding is already
    having--the Cuba issue is a side one, but it is already having
    an impact and I expect that it will continue to have an impact
    in some cases.
        And I would remiss if I did not mention the case of Vietnam
    because we have a communist government in Vietnam as well. I
    have a large number of Vietnamese American constituents who do
    not support--I mean, if it is a person who is a criminal. That
    is one thing. But if someone is here on an immigration
    violation, they do not support sending somebody back to the
    communists, and they are as serious about that as Ileana is
    about Cuba.
        I remember we had a witness here of a young woman who
    tragically lost her life in an auto accident whose family
    escaped from communist China in a boat. They were picked up by
    a German liner. And this young girl was born in Germany, and
    then her parents came to the U.S. and overstayed their visa.
    And we tried to get Germany to take her, but they wouldn't.
        Under this bill, she would be in jail for her life, and
    that is unreasonable. It doesn't solve the issue, Chief, that
    you have raised. It is a legitimate one and needs an answer,
    but this goes too far. I am hopeful that we can work through it
    and fix it and get something that we are all proud of.
        And I thank the gentleman for yielding.
        Mr. Gowdy. Yes, ma'am.
        In conclusion, I couldn't help that note that Iraq was on
    this list. When you consider the amount of money and other
    natural resources, including the blood and limbs of our boys
    and girls that have been spent in that country, that needs to
    be fixed yesterday.
        And in conclusion, I would note my colleague, the
    gentlelady from Texas, said America is different, and she is
    correct in many ways, and most of them are laudatory. But we
    have one of the highest crime rates in the world. We have an
    unacceptably high recidivism rate. And talismanically, 5 to 4
    Supreme Court decisions all of a sudden become bright-line
    constitutional rules the minute they are published, and most of
    us find that frustrating.
        But on a happier note, we want to thank our witnesses for
    their testimony today.
        Without objection, all Members will have 5 legislative days
    to submit to the Chair additional written questions for the
    witnesses which we will forward and ask the witnesses to
    respond to as promptly as they can so their answers may be made
    part of the record.
        Without objection, all Members will have 5 legislative days
    to submit any additional materials for inclusion in the record.
        With that and on behalf of all of us, again, we apologize
    for the intrusion into your time, and thank you for helping
    shed light on this significant issue.
        With that, we are adjourned.
        [Whereupon, at 1:08 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

     Letter from Thomas M. Susman, Director, Governmental Affairs Office,
                          the American Bar Association

       Letter from Douglas E. Baker, Chief of Police, Fort Myers Police
                                  Department,
                                 Fort Myers, FL

       FY2009-FY2011 YTD Zadvydas Releases by Citizenship, Country, and

                                  Criminality