[Senate Hearing 113-54]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 113-54
 
        BUILDING AN IMMIGRATION SYSTEM WORTHY OF AMERICAN VALUES
======================================================================



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 20, 2013

                               __________

                          Serial No. J-113-11

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
            Bruce A. Cohen, Chief Counsel and Staff Director
              Kolan Davis, Republican Chief Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................     1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   194

                               WITNESSES

Arulanantham, Ahilan T., Senior Staff Attorney, American Civil 
  Liberties Union, Immigrants' Rights Project, and Deputy Legal 
  Director, American Civil Liberties Union of Southern 
  California, Los Angeles, California............................     6
Cutler, Michael W., Senior Special Agent (Ret.), Immigration and 
  Naturalization Service, New York, New York.....................     8
Grussendorf, Paul, Retired Immigration Judge, Shepherdstown, West 
  Virginia.......................................................    11
Stampp, Pamela A., Managing Immigration Attorney, Castro Law 
  Firm, Wilmington, Delaware.....................................    14
Ting, Jan C., Professor of Law, Temple University Beasley School 
  of Law, Philadelphia, Pennsylvania.............................    12

                         QUESTIONS AND ANSWERS

Responses of Michael W. Cutler to questions submitted by Senator 
  Grassley.......................................................    23
Responses of Jan C. Ting to questions submitted by Senator 
  Grassley.......................................................    50

                       SUBMISSIONS FOR THE RECORD

American Association of People with Disabilities, Autistic Self 
  Advocacy Network, Bazelon Center for Mental Health Law, 
  Disability Rights Education and Defense Fund, National 
  Disability Rights Network, March 20, 2013, joint letter........    52
Arulanantham, Ahilan T., Senior Staff Attorney, American Civil 
  Liberties Union Immigrants' Rights Project, and Deputy Legal 
  Director, American Civil Liberties Union of Southern 
  California, Los Angeles, California, statement.................    55
Advocates for Human Rights, Minneapolis, Minnesota, statement....   101
American Immigration Council, Washington, DC, statement..........   105
American Immigration Lawyers Association, Washington, DC, 
  statement......................................................   108
Americans for Immigrant Justice, (formerly FIAC, Florida 
  Immigrant Advocacy Center), Washington, DC, statement..........   113
Asian American Justice Center, Mee Moua, President & Executive 
  Director, on behalf of Asian Pacific American Legal Center, 
  Asian Law Caucus, and Asian American Institute, Washington, DC, 
  March 20, 2013, letter.........................................   120
Asian & Pacific Islander American Health Forum (APIAHF), 
  Washington, DC, statement......................................   124
Banished Veterans, Hector Barajas, Pueblo, Colorado, March 19, 
  2013, letter...................................................   132
Cutler, Michael W., Senior Special Agent (Ret.), Immigration and 
  Naturalization Service, New York, New York:
    statement....................................................   136
    closing statement............................................   140
Faith-Based Groups (162), February 8, 2013, joint letter.........   148
Grussendorf, Paul, Retired Immigration Judge, Shepherdstown, West 
  Virginia, statement............................................   160
Henderson, Wade, President & Chief Executive Officer, Leadership 
  Conference on Civil and Human Rights, Washington, DC, statement   168
Huang, Margaret, Executive Director, Rights Working Group, 
  Washington, DC, statement......................................   176
Human Rights First, Washington, DC, statement....................   183
Lutheran Immigration and Refugee Service, Legislative Affairs 
  Office, Washington, DC, statement..............................   196
McCarthy, Mary Meg, Executive Director, Heartland Alliance's 
  National Immigrant Justice Center, Chicago, Illinois, statement   201
National Immigration Law Center, Washington, DC, statement.......   208
National, Regional, State and Local Organizations, joint 
  statement......................................................   213
Refugee Protection Organization, faith-based group, joint 
  statement......................................................   216
Stampp, Pamela A., Managing Immigration Attorney, Castro Law 
  Firm, Wilmington, Delaware, statement..........................   224
Ting, Jan C., Professor of Law, Temple University Beasley School 
  of Law, Philadelphia, Pennsylvania:
    statement....................................................   230
    closing statement............................................   236
Tiven, Rachel B., Executive Director, Immigration Equality, 
  Washington, DC, statment.......................................   239
Vera Institute of Justice, New York, New York, statement.........   245

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government or 
  other criteria determined by the Committee, list:

American Immigration Council--``Two System of Justice'' http://
  www.immigrationpolicy.org/sites/default/files/docsaic--
  twosystemofjustice.pdf


        BUILDING AN IMMIGRATION SYSTEM WORTHY OF AMERICAN VALUES

                              ----------                              


                       WEDNESDAY, MARCH 20, 2013

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:06 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Christopher 
Coons, presiding.
    Present: Senators Coons, Hirono, and Grassley.

  OPENING STATEMENT OF HON. CHRISTOPHER COONS, A U.S. SENATOR 
                   FROM THE STATE OF DELAWARE

    Senator Coons. Good afternoon. I would like to call to 
order this hearing of the U.S. Senate Committee on the 
Judiciary. I welcome our five witnesses and look forward to 
their testimony this afternoon.
    Let me just say at the outset, I apologize to our witnesses 
and those watching. I have just been notified there may be as 
many as seven votes beginning in 10 minutes, and I will do my 
best to keep the flow of the hearing moving forward, but the 
obligation to go cast a vote may interfere with the smooth 
forward motion of this hearing. I would just ask all of your 
indulgence as we do our best to keep moving forward through 
those many votes on our budget this afternoon.
    America earned its place in the world because of the 
immigrants who have come before us, bringing their culture, 
bringing their passion, bringing their ideas to our shores. And 
when I have asked Delawareans and Americans what they expect in 
the changes being considered in our immigration system, they 
say they want a system that keeps us safe from foreign threats 
and terrorism and from dangerous individuals in our 
communities. They say they also want a system that protects the 
American work force and grows our economy. And they want a 
system that is fair and transparent and reflects our most 
fundamental humanitarian values.
    I think our immigration system does a good job of 
enforcement. We certainly spend enough, more than $15 billion 
in the last Fiscal Year alone, as compared to $11 billion on 
all other Federal law enforcement combined.
    Let me say that again. In terms of enforcement, we are 
certainly investing enough, nearly $16 billion in the last 
fiscal year, which is more than spent on the FBI, the ATF, the 
DEA, and the U.S. Marshals Service combined.
    And it has a significant and broad impact. There are 32,000 
immigrants in detention in the United States right now in more 
than 250 facilities. And there will be about 400,000 at some 
point in the course of the year in detention. ICE deported 
about the same number, roughly 400,000 people from this country 
last year, and that number has been steadily climbing and now 
stands at about double the number of removals in 2001.
    But when I tell people that our immigration system does not 
allow immigration judges to consider circumstances, to balance 
different factors, to consider risk of flight, ties to the 
community, and whether or not there are U.S. citizen children 
who are dependent, they do not think that is consistent with 
our most basic values. And yet, immigrants in detention are 
denied any opportunity to make these and other arguments in 
roughly two-thirds of cases. And they are surprised, many, to 
learn that about a quarter of those deported have U.S. citizen 
children who must face either a childhood without their parent 
or effective deportation themselves.
    Now, those who are entitled to bond must wait weeks for an 
opportunity to present their case. Our civil detention system 
is geared toward maintaining a minimum number of detainees in 
its current construction rather than ensuring the safety of our 
community as its first priority.
    Long-time legal permanent residents with a U.S. family, a 
history of steady employment, those even who have served 
honorably in our armed forces can be, and in some cases have 
been, deported for any of a litany of relatively minor offenses 
that qualify only under the immigration code as aggravated 
felonies.
    Immigrants, even children and those with mental 
disabilities, lack not just the right to appointed counsel, but 
also the ability to obtain badly needed documents from the 
Government necessary to prove their cases. Even for immigrants 
entitled to relief under the law, the deck is in many ways 
stacked against them.
    While our Constitution prohibits ex post facto criminal 
laws, our immigration law does not respect that basic fairness 
principle under the 1996 revisions to the code. The list of 
crimes and activities leading to mandatory deportation was 
expanded and given retroactive effect. As a result, the law now 
requires mandatory deportation even for decades-old, non-
violent offenses, such as petty theft, simple drug possession, 
or failures to appear in court, all of which were not grounds 
of deportation before 1996.
    As I said at the beginning, we are a Nation of immigrants, 
but in my view, there are important elements of our immigration 
law that are inconsistent with America's fundamental values. 
Our system exacts a high cost on families, on human dignity, 
and on civil liberties. This cost, in my view, is unnecessary, 
unwarranted, and unfair.
    At roughly $163 per day per bed, our current detention 
system is also enormously expensive to maintain. It could be 
cheaper while also better serving our national security 
interests and our national commitment to civil rights.
    To cite briefly just one program, the Legal Orientation 
Program, which provides some immigrants with a basic overview 
of their legal rights, it costs just $70 per participant. Armed 
with knowledge of their rights, and in many cases their 
ineligibility for any form of relief, participants in the 
program spend as many as 12 fewer days on average in detention.
    Those who have a right to remain are able to make their 
case. Those who understand they have no rights to present leave 
sooner. According to the Department of Justice, these combined 
effects resulted in a nearly $18 million savings last year 
alone.
    I understand that there are dangerous individuals in this 
country who should not be here, and I strongly support the work 
of the brave men and women who serve in ICE and CBP to find 
these individuals and remove them from our communities and 
reduce the threats on our streets.
    My concern is that we must also afford a minimum level of 
due process consistent with our national values to those people 
who find themselves in an immigration system that, although 
civil, looks in many ways like a criminal proceeding. Detention 
and deportation decisions should be made in the public interest 
and subject to independent review, where appropriate, for 
immigrants with no history of violence. Less restrictive 
alternatives to detention ought to be used to guarantee 
enforcement of the court's orders. Immigrants ought to be 
advised of their legal rights and have meaningful access to 
discovery.
    Where necessary to participate meaningfully, particularly 
in cases involving children and those with mental disabilities, 
I think counsel should be provided. These are not exceptional 
goals, and they do not describe our current system.
    Under our current system, just to give one case, Hiu Lui 
Ng, a Chinese national, was detained by ICE when he appeared 
for his green card interview with his U.S. citizen wife and 
their two U.S. citizen children. Even though Mr. Ng had a good 
job as a computer programmer, and he was eligible for a green 
card based on a petition filed by his wife, ICE held him in 
detention for a long overdue past in absentia removal order. He 
was in custody for over a year and died due to lack of medical 
care while there.
    Also under our system, R.C., an Irish native who came to 
the United States as a lawful permanent resident in 1955 as a 
5-year-old, was detained by ICE for 10 months just a few years 
ago while he fought, and then ultimately won, cancellation of 
removal for a misdemeanor drug offense from 2006. These and 
many other example cases suggest reasons for this hearing today 
and for us to reconsider the cost, the values, the burden, and 
the fairness of our current deportation and detention system.
    Comprehensive immigration reform cannot be truly 
``comprehensive'' if it does not address current flaws that 
deny minimum due process rights consistent with our values.
    In closing, it is worth noting that we are only a few days 
away from important religious holidays of different faiths, 
whether Easter or Passover, when many of my colleagues will 
take time to reflect on our shared values.
    The book of Exodus tells us: ``You shall not oppress the 
stranger of foreigner; you know how a foreigner feels, for you 
lived as strangers in the land of Egypt.'' Pope Francis just 
this week was equally clear in his inaugural homily, exhorting 
leaders of many nations to be protectors of the most vulnerable 
amongst us.
    I want to particularly thank Chairman Leahy for allowing me 
to hold this hearing today, as well as Ranking Member Grassley, 
who I welcome. I am glad you have joined us, Senator Grassley. 
And I would like to welcome our five witnesses today, who bring 
a broad range of experiences with our system. I look forward to 
their testimony and answers to our questions.
    I will now turn to Senator Grassley for an opening 
statement. Thank you. Senator.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Thank you, Senator Coons.
    In the next few weeks, a group of Senators will unveil a 
comprehensive immigration bill that will include measures to 
secure the border, enhance work site enforcement, deal with 
millions of people who have come here without papers, and 
improve the channels for people to enter legally.
    The group's goal is to ensure that this legislation is a 
``successful, permanent reform to our immigration system that 
will not need to be revisited.''
    Let me say I hear that is what I thought in 1986 when we 
passed the last bill. We have a lot of lessons to learn from 
that bill that did not accomplish what we wanted it to 
accomplish.
    In order to be successful in this endeavor and to ensure 
that we do not need to revisit the problem, we need a system 
that respects the rule of law and allows people to enter 
legally. We need to protect American workers and secure our 
borders.
    The title of this hearing is a reminder that we need to 
build an immigration system that is worthy of our values, 
including, but not limited to, the values of freedom, 
acceptance, strength, and hard work.
    The system must also sustain the test of time. We need 
creative solutions, a commitment to enforcement, and policies 
that future generations will embrace for years to come.
    To move forward requires a complete change in our behavior. 
We cannot simply legalize 12 million people, enforce the laws 
later, and say that the immigration system is worthy of 
American values that we have long espoused.
    I am particularly troubled with this administration's 
approach to immigration because in the last several weeks, 
Immigration and Customs Enforcement released thousands of 
undocumented immigrants from detention facilities. It was clear 
from the start that the administration did not have control of 
the situation and did not consider the ramifications to public 
safety.
    On March 4th, Secretary Napolitano claimed that only 
hundreds of individuals were released due to budget reductions. 
However, the head of ICE came forward and acknowledged that the 
Department misled the American people, and over 2,300 people 
were released. Some of these were Level 1 offenders or violent 
offenders convicted of aggravated felonies.
    The administration has also been accused of cooking the 
books on deportation statistics. They are using deceptive 
marketing tactics and claiming that they have deported more 
people than ever before. Now, even the President said the 
statistics were ``deceptive.''
    Today we will hear about the need to consider alternative 
forms of detention. But before we make policy changes in this 
area, we need to have accurate data. Former immigrant Judge 
Mark Metcalf found that, in 2005 and 2006, 59 percent of the 
people here without document released before their hearing date 
never showed up for trial. The Executive Office of Immigration 
Review's own statistics indicate that 52,517 aliens failed to 
appear for their court dates in 2009 and 2010. This figure is 
on top of hundreds of thousands of unenforced court orders from 
previous years.
    Some believe that the number of those who did appear for 
their hearing actually includes those who were in Federal 
Government custody. So, of course, they have to appear. The 
fact is the data is flawed, and that is what needs to be 
corrected if we are going to make new policy. And we are going 
to make new policy.
    An October 2012 report from the Inspector General of the 
Department of Justice concluded that, ``Immigration court 
performance reports are incomplete and overstate the actual 
accomplishment of the immigration court in adjudicating 
immigration cases.''
    The report says that the office reports completions even 
when the immigration courts have made no decision on whether to 
remove the aliens from the United States. As a result, the 
Inspector General says a case may be completed multiple times. 
Again, the administration is overstating success.
    The Inspector General's report concluded that, ``These 
flaws in the Executive Office for Immigration Review's 
performance reporting precluded the Department of Justice from 
accurately assessing the court's progress in processing 
immigration cases or identifying needed improvements.''
    The American people deserve more from this administration. 
Because everybody is entitled to accountability, the 
administration has a constitutional duty to faithfully uphold 
the laws, and when they do not, the American people deserve an 
explanation.
    And I am sure that what I say about this administration is 
probably true of previous administrations as well to some 
extent.
    So we must have America's commitment to compassion remain 
as unprecedented as it has been. Our immigration system is a 
powerful expression of that commitment. My hope is that we will 
reform our immigration system for the better while preserving 
the commitment to freedom as well as to the rule of law.
    End of my statement. If you are Chairwoman----
    Senator Hirono [presiding]. Thank you very much, Senator 
Grassley, and I will be chairing this hearing until Chairman 
Coons returns.
    Before we begin the witness testimony, I would like to ask 
all of the witnesses to stand while I administer the oath. If 
you could raise your right hands. Do you solemnly swear that 
the testimony you are about to give to the Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Arulanantham. I do.
    Mr. Cutler. I do.
    Judge Grussendorf. I do.
    Mr. Ting. I do.
    Ms. Stampp. I do.
    Senator Hirono. Please be seated. Thank you, and let the 
record show that the witnesses have answered in the 
affirmative.
    Our first witness today is Ahilan Arulanantham. Mr. 
Arulanantham is the deputy legal director at the ACLU of 
Southern California and senior staff attorney at the ACLU 
Immigrants' Rights Project. He has successfully litigated a 
number of cases to protect the rights of immigrants, including 
several large class actions. He has served as a Lecturer in Law 
at the University of Chicago Law School, where he taught a 
course on Preventive Detention. Just what we are talking about 
today.
    Mr. Arulanantham, please proceed.

  STATEMENT OF AHILAN T. ARULANANTHAM, SENIOR STAFF ATTORNEY, 
AMERICAN CIVIL LIBERTIES UNION, IMMIGRANTS' RIGHTS PROJECT, AND 
   DEPUTY LEGAL DIRECTOR, AMERICAN CIVIL LIBERTIES UNION OF 
          SOUTHERN CALIFORNIA, LOS ANGELES, CALIFORNIA

    Mr. Arulanantham. Thank you, Madam Chairman and Ranking 
Member Grassley, and I want to thank Senator Coons for holding 
this hearing. My name is Ahilan T. Arulanantham, and I am a 
senior staff attorney at the ACLU. I have spent the last 12 
years representing thousands of immigrants.
    My work has been united by a common theme. It is the Fifth 
Amendment's guarantee that no person should be deprived of 
their liberty without due process of law. And the Supreme Court 
decided over 100 years ago that immigrants, whether lawfully 
present or not, are entitled to the Fifth Amendment's 
protections. But in the last two decades, we have largely 
abandoned that principle. Too often our immigration enforcement 
system does not provide a fair day in court to those who aspire 
to be citizens, and the results can be devastating.
    As Senator Coons stated, DHS imprisons over 400,000 people 
every year. This is an entirely modern phenomenon. in 1995, we 
detained about 85,000 people for that year, and today, when 
money is tight, we imprison almost 5 times that many.
    I have spent a lot of time in immigration detention centers 
and can tell you firsthand that they are prisons. People were 
colored jumpsuits and sleep in locked cells or pods that are 
patrolled by armed guards. Some are placed in solitary 
confinement. And all of them lose their freedom, including the 
right just to hug their children or their spouses, because 
there are no contact visits in the overwhelming majority of 
immigration detention centers.
    Unlike in other prisons, nearly half of the inmates have 
never been convicted of a crime. They are refugees fleeing 
persecutions or migrants who came for a better life. And others 
are long-time lawful permanent residents, green card holders, 
who have a criminal history. But all of them, by definition, 
have finished serving their sentences. They remain imprisoned 
only because they are immigrants.
    Because immigration detention and deportation are 
considered civil penalties rather than criminal punishments, 
immigrants have no right to many of the basic protections that 
criminal defendants have. The most important of these may be 
the right to appointed counsel for those who cannot afford it. 
The Government recognizes no right to an appointed attorney for 
anyone in deportation proceedings.
    Three years ago, we filed a lawsuit on behalf of Jose 
Antonio Franco Gonzalez. Mr. Franco has a very serious 
cognitive impairment. He does not know his own birthday or his 
age. He cannot tell time. When the Government sought to deport 
him, a psychiatrist determined that he had a severe cognitive 
disturbance that rendered him totally unable to understand the 
proceedings. But the judge did not appoint an attorney to 
represent him. Instead, he closed the case, citing his 
incompetence, and sent Mr. Franco back to his detention cell. 
And because he had no lawyer to argue for his case and no right 
to a bond hearing because of a single criminal conviction, he 
remained there with no active proceedings in his case for the 
next 4\1/2\ years. Taxpayers spent nearly $300,000 to detain 
him, money that could have paid for lawyers for dozens of 
immigrants.
    Sadly, Mr. Franco's case is not unusual. Every day in our 
immigration courts, trained DHS attorneys argue for the 
deportation of indigent, unrepresented people who are not 
capable of defending themselves. Some of them will be deported 
without the benefit of legal representation, even though they 
may have lived here for years, or face separation from their 
U.S. citizen family members who may be the only support system 
they have ever known. Every day people who could face 
persecution or torture if deported and speak and read no 
English have to present claims for asylum entirely by 
themselves. And even children suffer this fate. They go before 
immigration judges on a daily basis with no attorney to assist 
them.
    Immigrants facing deportation also have no right to a 
prompt bail hearing, and in most cases, no right to a bail 
hearing at all. Although detention--when you hear that word, it 
brings to mind a brief period of stay. I have represented many 
people who lost years of their lives in the so-called detention 
centers. My first client in Los Angeles was a refugee from Sri 
Lanka, who shared my name. His name is Ahilan, and he spent 
4\1/2\ years, half of his 20s, locked in an immigration prison 
because DHS was appealing his case.
    Just this morning, I heard from another one of my clients, 
the Reverend Raymond Soeoth. He is a Christian minister who 
fled Muslim majority Indonesia. He lost 2\1/2\ years of his 
life--and his successful small business as well--while his case 
was pending in front of immigration courts. When a Federal 
court finally ordered a bail hearing for him, the immigration 
judge ordered him released on bond.
    Perhaps most troubling of all, in the last 20 years our 
immigration laws have taken away from immigration judges the 
power to consider each individual's case on its own. I have 
known too many American children faced with the brutal choice, 
lose the benefits of growing up in this, our great Nation, your 
great Nation, or lose your parents, because the judge has no 
discretion to consider your equities.
    I have also endured the pain of watching long-time lawful 
permanent residents, green card holders who are my clients, 
torn from their families, from their churches, from their 
communities because our rigid immigration laws ignore the 
suffering of their American families.
    As this Committee considers reforming our immigration laws, 
I hope it will remember people like this, like Jose Franco, 
Reverend Soeoth, and Ahilan, and work to create a system that 
treats them as people, too.
    Thank you very much, Madam Chairman.
    [The prepared statement of Mr. Arulanantham appears as a 
submission for the record.]
    Senator Hirono. Thank you, Mr. Arulanantham.
    Our next witness is Michael Cutler. Mr. Cutler began 
working for the Immigration and Naturalization Service in 
October 1971 as an immigration inspector assigned to John F. 
Kennedy International Airport. In August 1975, he became a 
criminal investigator for the INS in New York City. From 1988 
until 1991, he was assigned as the INS representative to the 
Unified Intelligence Division of the DEA in New York. He also 
served on the Organized Crime Drug Enforcement Task Force. 
After a 30-year career, Mr. Cutler retired from the INS in 
February 2002.
    Mr. Cutler, please proceed.

 STATEMENT OF MICHAEL W. CUTLER, SENIOR SPECIAL AGENT (RET.), 
   IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK, NEW YORK

    Mr. Cutler. Thank you, Madam Chairman. I appreciate the 
opportunity to be here, and I thank Chairman Leahy, Senator 
Coons, Ranking Member Grassley, and certainly I thank you.
    I greatly appreciate this opportunity to provide my 
perspectives at this hearing concerning how America's 
immigration system may be made more reflective and worthy of 
American values. And, you know, for me, immigration was not 
just my life's work. It was also the story of my own family.
    My career, however, provided me with a unique front-row 
seat to the true importance of America's immigration laws to 
nearly every challenge and threat confronting America and 
Americans.
    Rather than simply being a single issue, immigration is a 
singular issue that impacts everything from national security, 
criminal justice, and community safety to the economy, 
unemployment, health care and public health, education, and the 
environment, to name the most prominent.
    America's immigration laws were enacted to achieve two 
critically important goals: Protect American lives and protect 
the jobs of American workers.
    A review of Title 8, United States Code, Section 1182 will 
make the purpose and intentions of our immigration laws clear. 
This section of the Immigration and Nationality Act enumerates 
the categories of aliens who are ineligible to enter the United 
States. Among these categories are aliens who have dangerous 
communicable diseases, suffer extreme mental illness, and are 
prone to violence or are sex offenders. Criminals who have 
committed serious crimes are also excludable as are spies, 
terrorists, human rights violators, and war criminals. Finally, 
aliens who would work in violation of law or become public 
charges are also deemed excludable.
    It is vital to note that there is nothing in our laws that 
would exclude aliens because of race, religion, or ethnicity.
    Our valiant members of the armed forces are charged with 
keeping our enemies as far from our borders as possible while 
the DHS is charged with securing our borders from within. While 
mentioning our borders, it is vital to understand that any 
State that has an international airport or has access to a 
seaport is as much a border State as are the States to be found 
along America's northern and southern borders.
    We are constantly told that the immigration system is 
broken. What is never discussed, however, is the fact that for 
decades the Federal Government has failed to effectively secure 
America's borders and enforce and administer the immigration 
laws with integrity. These failures convinced desperate people 
from around the world that the United States is not serious 
about it borders or its laws. This impression was further 
exacerbated by the amnesty created by IRCA in 1986 which 
enabled more than 3.5 million illegal aliens to acquire lawful 
status and a pathway to United States citizenship.
    This supposed one-time program that was to finally restore 
integrity to the immigration system was an abysmal failure. And 
it could be argued that the failures to effectively enforce the 
immigration laws, especially where employer sanctions were 
concerned, aided and abetted and encouraged the greatest influx 
of illegal aliens into this country in the history of the 
United States.
    Respect for America's immigration laws has been further 
eroded by the advocacy by the administration and some leaders 
for the creation of a program under the aegis of 
``Comprehensive Immigration Reform'' that, if enacted, would 
provide millions--actually, unknown millions of illegal aliens, 
whose true identities and entry data are unverifiable, with 
pathways to citizenship. This program is problematic for a 
number of reasons, but first and foremost is the undeniable 
fact that there is no way to determine the true identities of 
these aliens or verify how or when they entered the United 
States.
    We are also seeing the same problem with the program known 
as DACA, Deferred Action for Childhood Arrivals. There is no 
way of verifying the information contained in these 
applications. It should be noted that the aliens who would 
apply for DACA would be aliens who would have been able to make 
this filing under the DREAM Act, but that did not pass the 
legislative process.
    What is really important to understand, though, is that 
time and again the GAO and the OIG have pointed to a lack of 
integrity to the immigration benefits program. Fraud not only 
undermines the immigration system but national security and 
opportunities for American workers as well.
    Here are two important excerpts from the 9/11 Commission 
Staff Report. First of all, the preface of the reports begins 
by saying:
    ``It is perhaps obvious to state that terrorists cannot 
plan and carry out attacks in the United States if they are 
unable to enter the country. Yet prior to September 11, while 
there were efforts to enhance border security, no agency of the 
U.S. Government thought of border security as a tool in the 
counterterrorism arsenal.''
    The next paragraph I want you to consider is that, 
``Terrorists in the 1990s, as well as the September 11 
hijackers, needed to find a way to stay in or embed themselves 
in the United States if their operational plans were to come to 
fruition.'' And they determined that it ``could be accomplished 
legally by marrying an American citizen, achieving temporary 
worker status, or applying for asylum after entering. In many 
cases, the act of filing for an immigration benefit sufficed to 
permit the alien to remain in the country'' where they had the 
opportunity to ``conduct surveillance, coordinate operations, 
obtain and receive funding, go to school and learn English, 
make contacts in the United States, and acquire necessary 
materials to execute an attack.''
    On December 7, 2012, the OIG did a study on the SAVE 
program and noted that 800,000 illegal aliens who were 
currently at large may well have criminal histories, yet the 
SAVE program does not have all of its data in the files that 
need to be there, and this study that was done identified that 
12 percent of the time the files are wrong, so that there are 
instances where illegal aliens or aliens who should be subject 
to removal are being considered as being here legally.
    Adding to this, we have the problem of prosecutorial 
discretion where the administration has not been arresting 
illegal aliens, and most recently was the releasing of the 
criminal aliens, in fact, that Senator Grassley talked about.
    I want to make this clear: Law enforcement is at its best 
when it creates a climate of deterrence to convince those who 
might be contemplating violating the law that such an effort is 
likely to be discovered and that, if discovered, adverse 
consequences will result for the law violators. Current 
policies and statements by the administration, in my view, 
encourages aspiring illegal aliens from around the world to 
head for the United States. In effect, the starter's pistol has 
been fired, and for these folks, the finish line to this race 
is the border of the United States.
    Back when I was an INS special agent, I recall that Doris 
Meissner, who was at the time the Commissioner of the INS, said 
that the agency needed to be ``customer oriented.'' 
Unfortunately, while I agree about the need to be customer 
oriented, what Ms. Meissner and apparently too many politicians 
today seem to have forgotten is that the ``customers'' of the 
INS and of our Government in general are the citizens of the 
United States of America.
    I look forward to your questions.
    [The prepared statement of Mr. Cutler appears as a 
submission for the record.]
    Senator Coons. [presiding.] Thank you, Mr. Cutler.
    Our next witness is Paul Grussendorf. Judge Grussendorf was 
an immigration judge in Philadelphia and San Francisco from 
1997 to 2004. In Philadelphia, he was responsible for hearing 
the deportation cases of immigrants serving prison sentences at 
Allenwood Federal Penitentiary for felony convictions. In San 
Francisco, he was the judge responsible for hearing the cases 
of all detained immigrants in northern California. Paul 
Grussendorf is also the author of a legal memoir entitled, ``My 
Trials Inside America's Deportation Factories.''
    Welcome, Judge Grussendorf. Please proceed.

   STATEMENT OF PAUL GRUSSENDORF, RETIRED IMMIGRATION JUDGE, 
                  SHEPHERDSTOWN, WEST VIRGINIA

    Judge Grussendorf. Thank you, Acting Chairman Coons and 
Ranking Member Grassley and the distinguished members of this 
Committee. It is my honor to appear before you today.
    As you mentioned, Senator, when I was in Philadelphia, I 
was responsible for the so-called Institutional Hearing 
Program, which is the program that accelerates removal hearings 
for individuals who are convicted of aggravated felonies, and 
the hearings are held in Federal penitentiaries prior to the 
individuals' release from their criminal sentence in order to 
accelerate their eventual removal from the country. And, again, 
when I was in San Francisco, myself and my excellent colleague 
Michael Yamaguchi, we were the two judges responsible for the 
entirety of all detained individuals, migrants, aliens who came 
into ICE custody in northern California.
    I want to emphasize that today I am here as a private 
citizen. I am retired. I am not representing either DOJ or EOIR 
or any Government agency. My views are my own. But I can assure 
you that having spoken recently with many of my former 
colleagues, many of my colleagues share my views.
    Over the past two decades, Congress has severely curtailed 
the discretion of immigration judges to evaluate cases on an 
individual basis and grant relief to deserving immigrants and 
their families. Moreover, under current law, the Federal courts 
have also been stripped of their jurisdiction to review most 
deportation and agency decisions. Congress should restore 
judicial review and afford judges greater latitude in their 
deliberations, especially on issues of detention.
    It is my view that no individual who comes into ICE custody 
should be without access to counsel. If an individual cannot 
afford counsel, then the Government should provide an attorney 
for them. It is not in conformity with American values to 
detain someone in a remote facility, often in the desert, 
separated from their family, from medical care providers, under 
circumstances where it is virtually impossible for someone, 
especially from a different culture, a different language, to 
be able to obtain counsel.
    When I was in San Francisco, I had a compelling case that I 
heard involving a young woman from El Salvador. She was the 
mother of a U.S. citizen infant. She had been convicted of a 
so-called aggravated felony, namely, shoplifting. She had been 
shoplifting baby diapers for her infant. And when she came 
before me, I had to inform her that I had no power at all to 
consider any bond or her terms of custody. After a couple of 
continuances, she made the difficult decision to return with 
her infant to conditions of turmoil in El Salvador rather than 
fighting while in custody a case that she might well have been 
eligible to have won, either as an asylee or eventually as a 
lawful permanent resident.
    I would propose that anytime that ICE comes into contact 
with a migrant, if ICE wants to question them to determine that 
they are not lawfully in the United States, that ICE should 
question, ICE should issue charging documents, ICE should give 
a court date, and ICE should send them home so that they can 
continue to work, to feed their families, they can continue to 
support their community and our American tax base.
    Another case that I heard when I was in San Francisco was 
that of an Iranian asylum applicant, a woman who had, 
unfortunately, been diagnosed with schizophrenia. And her 
schizophrenia had also led her to be involved with a couple of 
extremely minor shoplifting instances, which then qualified her 
as an aggravated felon. She was married to a U.S. citizen. 
Together they had two U.S. citizen teenaged children. But ICE 
detained her, and we heard her case to renew her asylum status 
over a period of several months. I granted her case for asylum, 
and then because ICE appealed my grant to the Board of 
Immigration Appeals, she continued in custody for another year 
until the Board of Immigration Appeals finally upheld my grant 
of asylum. She was removed from the support of her family and 
of her medical caregivers due to the extremity of the current 
situation of mandatory detention.
    Congress should restore fairness and flexibility to our 
system by expanding the authority of immigration judges to 
consider the circumstances of each case. Judges are drawn from 
the ranks of immigration professionals, those who have spent 
their careers working in Government as well as those who have 
advocated on the side of immigrants. They should be trusted to 
make the correct calls.
    For example, in fiscal year 2012, immigration judges 
completed 380,000-some cases. Of those, only 26,000 cases were 
appealed. It seems that most parties to these proceedings are 
happy with the judges' decisions. Our Government and ICE should 
also be happy to defer to the immigration judges on issues of 
discretion, especially where custody is concerned.
    Thank you.
    [The prepared statement of Judge Grussendorf appears as a 
submission for the record.]
    Senator Coons. Thank you very much, Professor Grussendorf.
    Next we turn to Professor Jan Ting, our first of two 
witnesses from the first State of Delaware. Professor Ting is a 
professor of law at the Temple University Beasley School of Law 
in Philadelphia. He joined the law faculty in 1977 and teaches 
in areas of citizenship, immigration law, and tax law. 
Professor Ting was Assistant Commissioner of the Immigration 
and Naturalization Service of the U.S. Department of Justice 
from 1990 to 1993. Professor Ting is also a senior fellow and 
board member at the Center for Immigration Studies.
    Professor Ting, please proceed.

 STATEMENT OF JAN C. TING, PROFESSOR OF LAW, TEMPLE UNIVERSITY 
       BEASLEY SCHOOL OF LAW, PHILADELPHIA, PENNSYLVANIA

    Mr. Ting. Thank you, Senator Coons, and I thank all the 
members of the Committee for the invitation to appear today, in 
particular Chairman Leahy and Ranking Member Grassley.
    I have submitted written testimony, and I would like to 
make three additional points in addition to the written 
testimony that I have already submitted.
    I want to talk about this access to counsel issue. I think 
there is a historic distinction between civil and criminal 
litigation. The United States has never provided at taxpayer 
expense legal representation in civil matters. On the other 
hand, as someone who is in the business of training young 
lawyers, it would be very hard for me to oppose a properly 
labeled ``Lawyers' Full Employment Act of 2013.'' If I were a 
sitting Member of Congress--and I tried once to become one--I 
would be wary of advocating taxpayer-funded lawyers for 
foreigners in civil litigation when, under our current 
practice, taxpayer-funded lawyers are not provided to United 
States citizens, even in high-stakes litigation over things 
like home foreclosure, child custody, or lost jobs. American 
citizens go into child custody battles with whatever legal 
representation they can afford. I think we have to think about 
American citizens first before providing--forcing them to pay 
for taxpayer-funded lawyers for non-citizens.
    I also want to talk about mandatory detention. It seems to 
me that the 1996 reforms to our immigration laws--and let me 
make the obvious point, that all of our immigration laws that 
we are talking about were enacted by the Congress of the United 
States for good and valid reasons at the time. And I think the 
mandatory detention provisions were enacted to ensure the 
appearance of aliens for hearings and for removal. And the 
whole purpose of detention in the immigration context is to 
ensure the expeditious hearing and removal of aliens who do not 
belong in the United States. So there is a reason for it. And 
it seems to me that when alternatives are proposed that result 
in increased non-appearances, the whole purpose of the 
immigration system is frustrated. I think the burden ought to 
be on proponents of alternatives to detention to demonstrate 
that enforcement of the laws will not, in fact, be delayed.
    I also want to say something about prosecutorial discretion 
in general. If prosecutorial discretion is based on limited 
resources, it ought to consist of priorities for prosecution 
without putting any lawful cases off limits for political or 
policy reasons. Again, I emphasize that the laws of the United 
States were enacted by the Congress for good and valid reasons.
    If prosecutorial discretion is based on backlogs in the 
immigration court, that, it seems to me, is a management issue 
for the executive branch. Administrative immigration judges 
were intended to expeditiously process immigration cases 
without burdening our Article III courts. The backlog that we 
confront today is a manifestation of failure to deter illegal 
immigration. Cases should not be delayed because of pending 
visa applications. They should be decided on the merits, and 
then ICE can decide whether discretion is warranted in 
deferring removal. That would be a proper exercise, it seems to 
me, of prosecutorial discretion.
    Let me say that both my parents were immigrants. Of course, 
we should respect and admire immigrants, but that is not the 
question. The question is, the fundamental question is: How 
many? Should we limit immigration or should we allow unlimited 
immigration, as we did for the first century of the Republic, 
or as Senator Rand Paul said yesterday, ``If you want to come 
here and live and work, we will find a place for you.'' That 
was an articulate statement of, I think, the open borders 
position.
    Our failure to make a choice between those two alternatives 
is at the root of our dilemma over immigration policy. On the 
one hand, we find it hard to accept unlimited immigration. But 
on the other hand, we find it hard to say no to or to deport 
hard-working immigrants who remind us of our own ancestors just 
to maintain a numerical limit on immigration. But there is no 
third way. It is intellectually incoherent and indefensible to 
argue that we need to retain numerical limits on immigration 
but we do not have to enforce them, and that we can instead 
periodically grant amnesty to immigration law violators 
whenever they attain a sufficiently large number.
    The current U.S. immigration system is the most generous in 
the world. I want to make that point. We provide each year more 
green cards for legal permanent residents with a clear path to 
full citizenship than all the rest of the nations of the world 
combined. This is an immigration system worthy of American 
values. It needs to be defended, and the enforcement provisions 
of U.S. immigration law are essential to maintaining the 
statutory numerical limit on legal immigration and deterring 
would-be violators. Border enforcement alone is never going to 
be sufficient.
    People who violate our immigration laws engage in a cost/
benefit analysis before they decide to violate our laws. If we 
want less of them coming to the United States, we have to raise 
the costs through more enforcement and lower the benefits by 
assuring removal from the United States.
    If we want more illegal immigration, then the way to do it 
is to lower the costs through discretionary prosecution and to 
increase the benefits through things like amnesty. That is the 
fundamental choice that we have to make, and it is our refusal 
to choose between a policy of unlimited immigration or limited 
immigration that is at the root of our dilemma today. We have 
to answer that question one way or another. Otherwise, we end 
up with a dysfunctional system which is not worthy of our 
American values.
    Thank you.
    [The prepared statement of Mr. Ting appears as a submission 
for the record.]
    Senator Coons. Thank you, Professor Ting.
    Our final witness today is also from the great State of 
Delaware. Pamela Stampp is an attorney at the Castro Law Firm, 
where she has practiced immigration law for the last decade. 
Her practice deals primarily with adjustment of status, 
consular processing, waiver applications, VAWA, and U-visa 
applications, removal defense, and I-9 compliance. Ms. Stampp 
also handles business immigration applications and is herself a 
native of Jamaica and a naturalized U.S. citizen since 2007. So 
she has experienced the U.S. immigration system both as an 
attorney and as a client.
    Ms. Stampp, please proceed.

 STATEMENT OF PAMELA A. STAMPP, MANAGING IMMIGRATION ATTORNEY, 
             CASTRO LAW FIRM, WILMINGTON, DELAWARE

    Ms. Stampp. Thank you, Senator Coons, Ranking Member 
Grassley, and other Committee members. It is indeed my 
privilege to share with you today some of the concerns 
regarding the due process challenges being faced by many 
undocumented immigrants who try to navigate their way through 
our complex immigration system. I currently manage the 
immigration law area of practice at The Castro Firm in 
Delaware, and because of our firm's commitment to the 
community, I have had the opportunity of assisting many 
undocumented immigrants.
    As Senator Coons so graciously acknowledged, I myself am an 
immigrant, and I had to contend with the issues on my path to 
citizenship of having access to counsel to guide me through 
this complex process, although not in an undocumented state. 
The need for representation by counsel is even more important 
in cases where an individual is placed in removal proceedings 
because the consequences can be far more dire than the normal 
civil proceedings.
    The need for counsel demonstrates the importance when we 
think of the court administrative time and, consequently, 
increased costs when immigration judges are required to spend 
additional time guiding pro se respondents through proceedings. 
But it should never be forgotten that the role of the 
immigration judge is not to represent the respondent. It is the 
role of counsel to ensure that all forms of available relief 
have been adequately explored, that all issues for proper 
consideration have been brought to the attention of the court 
and that the law has been correctly applied to the facts and 
circumstances of the particular respondent. The greater the 
access to counsel, the less the likelihood of exploitation of 
undocumented immigrants by ``notarios'' and ``immigration 
consultants.''
    A framework really needs to be established to ensure that 
vulnerable groups--such as juveniles, VAWA, U-visa, or asylum 
candidates, or persons with mental disabilities--are identified 
at the earliest opportunity and provided with representation by 
counsel in their immigration matter.
    As an example, an undocumented immigrant was in an abusive 
relationship for a number of years during which she suffered 
from repeated acts of domestic violence. Having acquired only 
an elementary level education and been repeatedly warned by her 
abuser that if she told anyone, she would be deported, her 
situation only came to light when an act of physical violence 
against her in a public parking lot was actually observed by a 
patrolling police officer. The offender was charged, but had a 
friend not recommended that she contact our firm for 
assistance, she likely would never have learned of the 
possibility of a U-visa application being filed on her behalf.
    When it comes to the issue of custody determinations and 
mandatory determination, everyone placed in removal proceedings 
should have prompt access to a bond hearing with the 
immigration judge having full discretionary authority to make a 
determination based on all factors relevant to the grant of 
release on bond, such as flight risk, the respondents' ties to 
the community, and the likelihood that he will pose a threat to 
the community, or threaten the interests of national security.
    I am, in fact, reminded of the case of one immigrant who 
arrived in the U.S. in 1999 but later fell out of status. In 
2001, he started a business in order to support himself and his 
family. He made sure that this business was duly licensed and 
insured and paid taxes for every year it was operating. By 
2011, he had, in fact, acquired two residential properties, was 
able to provide employment for two additional persons, was the 
sole financial supporter for his 7-year-old U.S. citizen son, 
and had taxable earnings of over $100,000 for the tax year of 
2010. In 2011, however, he was detained and placed in removal 
proceedings.
    When he was detained, no bond application was entertained 
until a bond redetermination hearing was requested in 
immigration court. Bond was granted by the immigration judge, 
but only after he had spent 10 days incarcerated. For the sole 
operator of a small business, this is, in fact, detrimental.
    As indicated by my colleague Professor Grussendorf, 
immigration judges should be afforded broader discretionary 
powers to review the facts and arguments presented by both 
sides and to grant relief based on the merits.
    The prosecutorial discretion policy, for example, vests 
power solely in the hands of DHS, who are in reality the 
adverse party in immigration proceedings. Does this not amount 
to giving them the final determiners or arbiters? The ability 
of an immigration judge to exercise judicial discretion in such 
circumstances and arrive at a decision on the merits would go a 
long way toward ensuring the interests of justice are served.
    In the normal process of immigration matters, one of the 
ways in which you ascertain information to assist your cases 
through the discovery process is called a FOIA, a Freedom of 
Information Act request. Many immigration clients are unable to 
provide a clear and comprehensive or accurate record of their 
immigration history, despite the assistance of counsel. The 
current mechanism for determining this process of past 
immigration history, the FOIA request, has become time-
consuming because of the lengthy delays in receiving the 
requested information. Even where the more expedited format is 
adopted because the immigrant is in removal proceedings, this 
process can still take months.
    This could easily be alleviated if there was an established 
procedure for ensuring that counsel representing an immigrant 
has access to the immigration and criminal records in the 
possession of DHS in the fashion of the normal adverse party 
discovery process.
    In conclusion, changes in the law to afford access to 
counsel, prompt bond hearings for all, greater judicial 
discretion, and a more efficient discovery process would, in my 
view, certainly contribute to an immigration system worthy of 
American values.
    Thank you.
    [The prepared statement of Ms. Stampp appears as a 
submission for the record.]
    Senator Coons. Thank you, Ms. Stampp.
    I would like to thank all five of our witnesses today. I 
have a wide range of questions I would like to ask you in 
response to your testimony. If you will forgive me, however, we 
are between the second and third vote, and in the absence of 
other members, I am going to recess this hearing for about 20 
minutes while I go to the floor, cast two votes, and then 
return, and hopefully we will have a chance for some broad 
questioning then.
    Again, my apologies, but I have to go vote. Thank you. This 
hearing is in recess.
    [Recess at 2:56 p.m. to 3:27 p.m.]
    Senator Coons. I would like to call this meeting back to 
order. I again just want to express my appreciation to today's 
panel of witnesses for your patience with the many votes going 
on over in the Capitol.
    Mr. Arulanantham, if I might start with you, in preparing 
for this hearing, I was surprised to learn that Congress has, 
in fact, mandated each year since, I think, 2010 that DHS 
maintain over 34,000 detention beds, whether DHS or whether ICE 
needs them or not, and this is, if I have my numbers right, 
more than 1,000 over the requested bed level for this year.
    How do legislatively mandated bed quotas drive ICE policy 
with respect to bond or parole recommendations, in your view?
    Mr. Arulanantham. Well, there is no question that the bed 
mandate does drive ICE policy, and I think in a very irrational 
way, because as I was mentioning in the testimony and as you 
can see in the appendix to my written testimony, there are 
thousands of people who are not a danger, not a flight risk, 
whom immigration judges would release on bond if they could get 
a hearing that ICE detains under the mandatory detention laws. 
I think there is an obvious relationship between that bed 
quota, which requires a particular level, even if detention is 
not otherwise necessary, and that mandatory detention law which 
requires the detention of people who, if they got a hearing, if 
they got their day in court, would show that they do not have 
to be locked up.
    I think particularly in this time, as well, Senator, it 
does not make a lot of fiscal sense, and we know alternatives 
to detention, ICE's own data as well as the data from the 
companies that do intensive supervision assistance, show that 
now we have very sophisticated technologies that will allow for 
a very high appearance rate. Well over 90 percent is reported 
routinely, 99 percent in southern California where I practice, 
99 percent in the BI, which is the company that does this, in 
their national statistics. Those are 99-percent appearance 
rates at court hearings for people who are released but kept on 
intensive supervision.
    Senator Coons. Would you just briefly explain what 
technologies are today available for intensive supervision that 
may not have been available when the provisions were passed and 
when these requirements were put in place? And just say 
something about, given the bed quota, how widespread are these 
alternatives?
    Mr. Arulanantham. Well, remember, the provisions were 
passed in 1996, and they were based on studies that were done 
before then. At that time the bed capacity was far lower, so 
ICE released--actually, INS, excuse me, back then, released 
people without doing an analysis of whether they were a flight 
risk just because there was not space to hold them. So at that 
time, when those findings were made, there was not any kind of 
individualized, you know, reticulated way to analyze and 
determine who was a flight risk. We did not have at that time, 
obviously, at least the widespread availability of GPS 
monitoring devices that can be put on electronic collars that 
you can put on people's ankles. We did not have the 
sophisticated telephone reporting systems that we have today.
    So there is a great variety of technologies that produce 
these high appearance rates that were never tested back in the 
mid-1990s when the statute was previously passed.
    Senator Coons. And how widely are those currently being 
deployed or demonstrated?
    Mr. Arulanantham. They are being deployed all across the 
country, Senator, but the problem is under ICE's 
interpretation--that is not the problem. The problem is under 
ICE's interpretation of the law, they interpret custody in 
Section 1226(c), the mandatory detention statute, to mean 
locked up. So they do not allow the release and alternatives to 
detention of people who are required to be detained under that 
law. So you have people who have family members, maybe people 
who were released on the criminal case--they had a criminal 
case, they were released on bond, they appeared for their plea 
hearing or trial, then they were convicted, they go to 
immigration, and they cannot ask for bond. And that does not 
make any sense.
    Senator Coons. If I might, Ms. Stampp, just a follow-up to 
that, in your experience when you encounter a defendant, when 
you represent someone, how often are they aware of the rights 
they may or may not have under law? And then, specifically, 
what sorts of defenses to removal of an immigrant who has no 
access to counsel and is not particularly informed about the 
process and how it is going to work, what might they raise but 
that they in your experience often fail to raise because they 
are unaware of their----
    Ms. Stampp. Senator Coons, in my experience, most times 
they are not aware of the legal options available to them. Most 
of the undocumented immigrants, in particular, they have no 
concept of what legal rights they have. In fact, many feel that 
if they encounter law enforcement in any form or fashion, they 
will be placed in deportation proceedings.
    They may have in many instances a legitimate claim for 
remedies such as asylum, cancellation of removal in certain 
circumstances. They may have the ability to apply for 
protection under the Convention Against Torture. They may also 
be VAWA, Violence Against Women Act, appropriate candidates or 
U-visa, victim of crimes, applicants as well.
    But if they have not got the information to inform them 
that these are options available to them, it may never be 
raised.
    Senator Coons. And, Ms. Stampp, if they do not have access 
to counsel--and in a majority of cases they do not--then where 
do immigrants in these circumstances turn? Where do they get 
legal advice? You mentioned in your spoken testimony these 
``notarios.'' Say a little bit more, if you would, about their 
role, their cost, their effectiveness in this process.
    Ms. Stampp. Indeed, Senator, the ``notarios,'' who are not 
attorneys, they are, in fact, many times operating under the 
guise of immigration consultants, so-called, but they are 
indeed dispensing legal advice on which many applicants or 
petitioners will act to their detriment. They will move forward 
with applications which are either unsupported or not properly 
substantiated on the advice of these notarios and put 
themselves in a far worse situation than if they had been 
afforded the opportunity to get proper advice from counsel.
    In some communities, because of the nature of how these 
``notarios'' are viewed, especially, if I may indicate, in the 
Hispanic community, which I am very close to, they are seen as 
a source of information, as a resource to go to, because they 
do not see any other options available to them.
    Senator Coons. Professor, I would be interested if you 
would comment on this, but also you said in your testimony that 
it is often the case that immigrants have spent weeks, possibly 
months, in detention before appearing before a judge for the 
first time. Now, that seems like a long time to spend in 
detention before seeing a judge. Can you tell me why 
individuals typically spend such a long time in detention 
before they see a judge for a bond hearing?
    Mr. Ting. Well, you know, I think Judge Grussendorf would 
be more of an expert on that than I. I think the usual reason 
is because there is a tremendous backlog of cases that stands 
in the way, and they are in detention to ensure their 
appearance. You know, prior to 1996, we had a very bad record 
of people showing up for their immigration hearings if they 
were not, in fact, detained. We have a very good record of 
their appearing if they are detained prior to the hearing. So, 
you know, the detention, the sole purpose is to facilitate the 
congressionally designed administrative removal process.
    And the issue of legal counsel, I would just emphasize 
that, in general, people cannot be removed from the United 
States without a decision of an immigration judge. And 
immigration judges are given broad discretion in how they 
conduct their hearings. They understand the law, and they are 
free to gather information, to interrogate witnesses, including 
the alien, and their job is to mete out a fair interpretation 
of the immigration laws case by case. And I think the 
administrative system is designed through immigration judges to 
ensure that there is someone there who understands the 
immigration law and is responsible for seeing that it is 
properly applied to the individual alien.
    Senator Coons. Professor Ting, if I might, before I turn to 
Judge and Professor Grussendorf, in terms of a cost/benefit 
analysis, I take your point about 1996. But as Mr. Arulanantham 
suggested, with modern technology--GPS, ankle bracelets--that 
really were not available broadly, did not exist back in 1996, 
there are districts that are now showing--regions that are 
showing 99 percent. Would it make sense if there are instances 
where there is virtually no risk to society and the flight or 
escape risk is so low to allow supervised detention rather than 
physical detention?
    Mr. Ting. Yes, you know, I am certainly open to pilot 
projects to demonstrate that there is no loss of appearances as 
a result of these alternate technologies. I think a lot of 
people are skeptical about these alternate technologies, and I 
think to the extent that you weaken the enforcement function, 
you add to the dysfunction of our immigration system generally, 
at the root of which, as I have said in my written statement, 
is our failure to make a clear decision on whether we favor 
numerically limited immigration, which requires enforcement, or 
unlimited immigration, as I think some Members of Congress do, 
which does not require enforcement. And if we decide, oh, we 
are for numerical limits, then you have to enforce those 
limits, and you have to find a way to do so. And that is why we 
have the system in place that we do.
    Senator Coons. Understood.
    Professor Grussendorf, if I might, I have relatively little 
time until the next vote, which has been called, if you could 
just comment on the length of time before folks, typically 
immigrants, appear before a judge and have a chance at a bond 
hearing, the impact of the consequences of this process where 
we are using detention and holding people for long periods of 
time without them being aware of their rights or their 
alternatives, and then what you think are the best paths 
forward. Are detainees entitled to request a bond hearing? 
Should we accelerate bond hearings?
    Judge Grussendorf. Thank you, Senator. First of all, I 
would say that it varies widely from jurisdiction to 
jurisdiction, but certainly it is not unusual for a migrant to 
be detained for a couple of weeks before they are even able to 
be brought before an immigration judge due to the busy dockets 
of the immigration courts.
    Now, as far as any possible solution, one solution is, of 
course, to do away with the wide-ranging laundry list of 
grounds for so-called mandatory detention to roll back on the 
so-called aggravated felonies which, if someone is convicted of 
that which qualifies as an aggravated felony, then they are 
automatically subject to mandatory detention.
    Most of these so-called aggravated felonies, they are not 
crimes that involved dangerousness or any type of vile nature, 
and in my opinion and that of many of our colleagues, 
individuals could be released into the community, especially 
with alternatives to detention methods, and to assure their 
return, and that there would not be then such a backlog on the 
custody calendar.
    Now, as far as providing counsel to those who are detained, 
I would like to draw an analogy. It is actually the case that 
right now there are many so-called illegal migrants who do have 
Government-appointed counsel, and that is mainly at the border 
when individuals are arrested for illegal entry and illegal re-
entry under 8 U.S.C. 1324, 1325, and 1326. And the situation 
there is that the Federal public defenders, for example, in San 
Diego, they do represent the individuals. They are not involved 
in dilatary tactics trying to slow down the system at all. In 
fact, the district court judges and the U.S. Attorney's 
Offices, they recognize that without the Federal public 
defenders being there to represent such a volume of criminal 
detainees, the entire system would break down.
    Now, I would submit that currently the immigration 
detention system has broken down because the detainees do not 
have attorneys who can help facilitate their cases. In a 
situation where nobody has a form of relief where it might be 
best for them to take an order to return, an attorney can 
explain that to them and they can understand, ``Well, there is 
no reason for me to languish in detention another couple weeks 
or months.''
    Senator Coons. Let me ask you a quick followup, then, if I 
might. I referenced in my opening the Legal Orientation 
Program, which, if I understand right, can reduce costs by 
reducing the amount of time it takes to resolve a case, because 
immigrants, once more aware of their options and their rights, 
will either choose to accept deportation, recognizing they have 
no other likely path, or make a successful claim.
    Can you tell me a little bit more about what the LOP does 
or does not do and how it affects timeliness and cost of 
resolution of cases?
    Judge Grussendorf. Well, yes, sir. I was impressed when the 
Executive Office for Immigration Review first initiated that 
program and supported organizations in the community. The 
problem with that program, though, is that we are still talking 
about trying to advise individuals of their rights, usually en 
masse, that there is no privacy, there is no opportunity to sit 
down with an individual and really spend any time with them to 
assess their individual case, to assist them in pulling 
together documents and witnesses, and so on. It is really more 
of an en masse type situation, and I am certain that many of 
the respondents, especially when you are dealing through a 
second language, are still unaware of what their options are.
    Senator Coons. Mr. Arulanantham, we are marking the 50th 
anniversary of Gideon v. Wainwright and the recognized right to 
counsel for American citizens in the criminal process. 
Immigration detention has withstood challenges because it is 
deemed to be civil, not criminal.
    Could you comment on that and on what aspects of it really 
seem or have the consequences of a criminal process and what 
the courts have said about the due process rights of detainees? 
And describe, if you would, some of the alternatives. Professor 
Ting was saying he could see his way toward a demonstration 
program. What are the current demonstration programs? How have 
they demonstrated cost-effectiveness? And in what ways might 
they have improved the process and respected due process?
    Mr. Arulanantham. Well, it is not quite right to say that 
there is only a right to appointed counsel in criminal cases. 
The Supreme Court recognized a right to appointed counsel in 
every juvenile delinquency case, even though that is a form of 
civil proceeding, not a criminal proceeding. The Supreme Court 
has also recognized that counsel may be necessary in some cases 
involving parental termination in the Lasser decision, in civil 
contempt proceedings in the Turner v. Rogers decision, and in 
other contexts. In fact, the overwhelming majority of States--I 
think it is 47--provide counsel as a matter of statute to 
people in parental termination proceedings.
    Now, if you think about it, many deportation cases are 
parental termination proceedings. Many of them are. And even 
ones that are not, people who could be tortured or persecuted 
if returned, if their case is decided the wrong way, I mean, 
the stakes in immigration cases are often greater than they are 
in criminal cases, as the Supreme Court has recognized in the 
Padilla decision.
    So deportation is unique. It cannot be understood--you 
know, you cannot pigeonhole it and compare it simply to one 
form of other kind of proceeding or another. I think the real 
question is, you know, when you have a person who has a serious 
mental illness and you have got the DHS represented by a 
trained prosecutor who is trying to get that person deported, 
is it fair to have that person make all the arguments that they 
have to make for themselves? Is it fair for a child to be put 
in that position?
    All we are recommending, Senator, is that the Attorney 
General have the option--that we require counsel for the people 
who are most vulnerable who need it, like children and people 
with mental disabilities, and then that the Attorney General 
have the ability on a case-by-case basis to determine whether 
counsel is necessary in other situations, which is the same 
thing that the law requires, that the Due Process Clause 
requires, in parental termination cases, in civil contempt 
cases, and other contexts.
    And you had asked about pilots. I think the best way to 
assess cost savings in the appointed counsel context, because 
we have not, unfortunately, had pilots with full-blown 
appointed counsel--we are trying, but they have not been 
authorized by Congress--is by looking at LOP. And you can see 
in the Legal Orientation Program even with that, as Judge 
Grussendorf was saying, that process of providing information, 
we see in EOIR's statistics report substantially decreased 
detention times because of cost savings in that context.
    Now, if you think about what that means, every time a judge 
puts over a case for a month in order to try and find a lawyer 
to represent a mentally ill person--and I see this every day in 
our litigation on that issue--that is $50,000. It is $50,000 
that you just spent by taking 30 extra days while you are 
begging people to find lawyers. The same is true for children. 
The same is true for prompt bond hearings. And think about how 
many people you could represent. I mean, depending on where you 
are in the country, $50,000 will pay for almost a whole lawyer 
for a year.
    Senator Coons. If you will forgive me, thank you very much, 
Mr. Arulanantham, for that statement.
    I want to thank all the witnesses. I apologize. I have just 
a few minutes left to get back to the floor on a vote that is 
live.
    I am going to keep the record open on this hearing for a 
week for statements; if there are any closing statements 
witnesses would like to make for the record, issues we did not 
get to today, I apologize; if there are members who were not 
able to attend and who have questions for the record that they 
might like the witnesses to answer.
    Congress has a lot of significant issues to work through if 
we are to be successful in reaching an appropriate compromise 
and improvements, enduring improvements, to our immigration 
system, and it is my hope that we will not lose sight of some 
of the due process concerns raised here today and that we will 
find a way to come together and make significant, sustained 
improvements to America's immigration system.
    I want to thank all five witnesses again for their patience 
today with the difficulties of our schedule, and this hearing 
is hereby adjourned.
    [Whereupon, at 3:48 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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