[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




                                 
