[Senate Report 104-48]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Report
Session
104-48
_______________________________________________________________________
CRIMINAL ALIENS IN THE UNITED STATES
__________
R E P O R T
prepared by the
PERMANENT SUBCOMMITTEE ON
INVESTIGATIONS
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
April 7 (legislative day, April 5), 1995.--Ordered to be printed
COMMITTEE ON GOVERNMENTAL AFFAIRS--104th CONGRESS
WILLIAM V. ROTH, Jr., Delaware,
Chairman
TED STEVENS, Alaska
WILLIAM S. COHEN, Maine
FRED THOMPSON, Tennessee
THAD COCHRAN, Mississippi
CHARLES E. GRASSLEY, Iowa
JOHN McCAIN, Arizona
SAM NUNN, Georgia BOB SMITH, New Hampshire
JOHN GLENN, Ohio
CARL LEVIN, Michigan
DAVID PRYOR, Arkansas
JOSEPH I. LIEBERMAN, Connecticut
DANIEL K. AKAKA, Hawaii
BYRON L. DORGAN, North Dakota
Franklin G. Polk, Staff Director
and Chief Counsel
Leonard Weiss, Minority Staff
Director
Michal Sue Prosser, Chief Clerk
_________________________________________________________________
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
WILLIAM V. ROTH, Jr., Delaware,
Chairman
TED STEVENS, Alaska
WILLIAM S. COHEN, Maine
FRED THOMPSON, Tennessee
THAD COCHRAN, Mississippi
CHARLES E. GRASSLEY, Iowa
JOHN McCAIN, Arizona
SAM NUNN, Georgia BOB SMITH, New Hampshire
JOHN GLENN, Ohio
CARL LEVIN, Michigan
DAVID PRYOR, Arkansas
JOSEPH I. LIEBERMAN, Connecticut
DANIEL K. AKAKA, Hawaii
BYRON L. DORGAN, North Dakota
Harry Damelin, Chief Counsel/Staff
Director
Dan Gelber, Chief Counsel to the
Minority
Caris Martin, Chief Clerk
_________________________________________________________________
COMMITTEE ON GOVERNMENTAL AFFAIRS--103rd CONGRESS
JOHN GLENN, Ohio, Chairman
SAM NUNN, Georgia
CARL LEVIN, Michigan
JIM SASSER, Tennessee
DAVID PRYOR, Arkansas
JOSEPH I. LIEBERMAN, Connecticut
DANIEL K. AKAKA, Hawaii
WILLIAM V. ROTH, Jr., Delaware BYRON L. DORGAN, North Dakota
TED STEVENS, Alaska
WILLIAM S. COHEN, Maine
THAD COCHRAN, Mississippi
JOHN McCAIN, Arizona
ROBERT F. BENNETT, Utah
Leonard Weiss, Staff Director
Franklin G. Polk, Minority Staff
Director and Chief Counsel
Michal Sue Prosser, Chief Clerk
_________________________________________________________________
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
SAM NUNN, Georgia, Chairman
JOHN GLENN, Ohio, Vice Chairman
CARL LEVIN, Michigan
JIM SASSER, Tennessee
DAVID PRYOR, Arkansas
JOSEPH I. LIEBERMAN, Connecticut
WILLIAM V. ROTH, Jr., Delaware BYRON L. DORGAN, North Dakota
TED STEVENS, Alaska
WILLIAM S. COHEN, Maine
THAD COCHRAN, Mississippi
JOHN McCAIN, Arizona
ROBERT F. BENNETT, Utah
Eleanore Hill, Chief Counsel
Daniel F. Rinzel, Chief Counsel to
the Minority
Stephen H. Levin, Counsel
Mary D. Robertson, Chief Clerk
(ii)
104th Congress Report
SENATE
1st Session 104-48
_______________________________________________________________________
CRIMINAL ALIENS IN THE UNITED STATES
_______
April 7 (legislative day, April 5), 1995.--Ordered to be printed
_______________________________________________________________________
Mr. Roth, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
Part I--Introduction
Overview and Summary of the Investigation
America's immigration system is in disarray and criminal
aliens (non-U.S. citizens residing in the U.S. who commit
serious crimes for which they may be deportable) constitute a
particularly vexing part of the problem. Criminal aliens occupy
the intersection of two areas of great concern to the American
people: crime and the control of our borders.
Criminal aliens are a serious and growing threat to public
safety that costs our criminal justice systems hundreds of
millions of dollars annually. Although criminal aliens who
commit serious crimes are subject to deportation under current
law, the deportation system is in such disarray that no one,
including the Commissioner of the Immigration and
Naturalization Service, can even say with certainty how many
criminal aliens are currently subject to the jurisdiction of
our criminal justice system. We do know that the Federal Bureau
of Prisons confines about 22,000 criminal aliens--25 percent of
the total Federal prison population--and that both the number
and percent have been growing steadily since 1980. The Justice
Department estimates that there are about 53,000 criminal
aliens in federal and state prisons. However, this figure does
not include criminal aliens in local jails, on probation or on
parole. The Subcommittee conservatively estimates that there
are 450,000 criminal aliens in the United States who are
currently incarcerated or under some form of criminal justice
supervision.\1\
\1\ See footnote 11.
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Confinement of criminal aliens in state and federal prisons
cost taxpayers approximately $724,000,000 in 1990. This cost
estimate is quite conservative because it does not include the
substantial costs associated with law enforcement
investigations, prosecutions, judicial proceedings, probation,
parole and deportation proceedings.
The Immigration and Naturalization Service (INS), the
agency responsible for detaining and deporting criminal aliens,
is overwhelmed by the criminal alien problem. While INS has
responsibility for deporting all criminal aliens, the agency is
unable to even identify most of the criminal aliens eligible
for deportation. Even when INS identifies criminal aliens in a
timely fashion, current U.S. immigration laws--formulated in
piecemeal style over the years by Congress--permit those who
object to delay their deportations for years by taking
advantage of an often-times irrational, lengthy and complex
system of hearings and appeals.
To make matters even more difficult for immigration
officials, some local communities have adopted official
policies of non-cooperation with the INS. Public employees in
these communities are prohibited from providing information to
the INS or cooperating with INS in most circumstances. Even in
communities without such non-cooperation policies, criminal
aliens who come in contact with state and local law enforcement
officials are often not identified as aliens because it is
difficult for untrained personnel to accurately determine
citizenship. Consulting INS is often fruitless since the INS
file system, which is name based, cannot reliably be used to
identify criminal aliens because of the widespread use of
aliases by such aliens. Even when state or local law
enforcement officials correctly identify a criminal alien and
notify the INS, INS often refuses to take action because of
insufficient agents to transport prisoners, or because of
limited detention space.
Even when a criminal alien is properly identified and the
deportation process has begun, the procedures that the INS is
required to follow are lengthy and complex. Criminal aliens may
remain in the U.S. for years while they appeal their cases.
After their appeals have been exhausted, some criminal aliens
delay deportation for additional years by filing dubious asylum
claims. Many criminal aliens are released on bond while the
deportation process is pending. Ironically, INS routinely
provides work permits, legally allowing such criminal aliens to
work while their appeals are pending.
Delays can earn criminal aliens more than work permits and
wages--if they delay long enough they may even obtain U.S.
citizenship. Time spent in the U.S., whether it is in a prison,
a jail, on bond or under community supervision, may count
toward the 7 year residency requirement established by one
section of the immigration laws.
Despite previous efforts in Congress to require detention
of criminal aliens while deportation hearings are pending, many
who should be detained are released on bond. Over 20 percent of
nondetained criminal aliens fail to appear for deportation
proceedings. Through 1992, nearly 11,000 criminal aliens
convicted of aggravated felonies (which are particularly
serious crimes) failed to appear for deportation hearings.
Undetained criminal aliens with deportation orders often
abscond upon receiving a final notification from the INS that
requires them to voluntarily report for removal. (This notice
is humorously referred by some INS personnel as the 72 hours
``run notice.'') Too often, as one frustrated INS official told
the Subcommittee staff, only the stupid and honest get
deported.
One would think that processing incarcerated criminal
aliens for deportation would be a simple matter, but problems
also exist here. INS directs much of its resources into the
Institution Hearing Program (IHP) which entails identifying,
processing and expeditiously deporting criminal aliens located
within prison populations. But, instead of removing (from the
U.S.) the ``worst of the worst'' as the INS asserts, the
program is actually a fast-track home for the ``best of the
worst'' criminal aliens. Cases that may be difficult to
complete before sentences expire are excluded from the program
in favor of less complicated, uncontested cases.
Focusing on these so-called ``quick deports'' yields
impressive statistics but does little to resolve the underlying
problems. For example, according to a recent GAO study,
immigration judges complete 79% of cases in the IHP before
prisoners' sentences expire, but only 6% of all criminal aliens
have their cases completed before their sentences expire.\2\
Thus, the great majority of criminal aliens, upon completing
their sentences, are released from custody without being
deported.
\2\ Report on Immigration Control: Immigration Policies Affect INS
Detention Efforts, GAO/GGD-92-85, June 1992, p. 39.
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Even when the system does finally work and a deportation
order is issued, delays may occur if the criminal alien's
native country fails to issue travel documents in a timely
fashion. While most countries are cooperative, some countries,
including Nigeria, Jamaica, and the Dominican Republic were
cited repeatedly as being uncooperative and employing delaying
tactics in issuing necessary travel documents.
Finally, even after the lengthy deportation process has
been completed and the criminal alien has actually been
returned to his own country at U.S. taxpayer expense, deported
criminal aliens often return to the U.S. in a matter of days or
even hours. Deportation is too often perceived by criminal
aliens as an inconvenience, perhaps even a blessing, providing
an opportunity for a brief visit with friends and family before
returning to the U.S. Although the crime of re-entry following
deportation is a felony punishable by up to 20 years in prison
(increased from 15 years by the 1994 crime bill), such cases
are a low priority with federal law enforcement officials who
often fail to prosecute unless the criminal alien has engaged
in multiple reentries and has multiple felony convictions.
It is apparent from the foregoing summary that substantial
legislative and administrative reforms are urgently needed if
the problems presented by criminal aliens in the United States
are to be adequately addressed.
First, the law governing deportation of criminal aliens
should be dramatically simplified. After all, criminal aliens
have already been afforded all the substantial due process
required under our system of criminal justice before being
convicted beyond a reasonable doubt of a felony. There is
little reason for the multiple levels of appeal and delay in
the deportation process which current law permits. Congress
should consider restricting defenses available to avoid
deportation and allowing any appeals to be pursued only after
deportation has taken place. Further simplification could be
achieved if Congress were to eliminate the current distinctions
among aggravated felonies, crimes of moral turpitude and drug
offenses and simply make all felonies deportable offenses.
The Immigration and Naturalization Service must
dramatically improve its recordkeeping procedures and adopt a
finger-print based records systems. Fortunately, the INS
Commissioner has announced plans to move toward adoption of
such a system.\3\
\3\ In a press release dated June 2, 1994 the INS Commissioner
stated, ``We are taking advantage of new technology to be able to
multiply the effectiveness of our people on the front lines who deliver
benefits and enforce the immigration laws.''
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Problems of undetained criminal aliens who fail to appear
or who abscond after they are ordered deported would be
lessened if the INS detained more criminal aliens. Congress
should consider requiring the detention of all criminal aliens
who are in the country illegally pending their deportation, and
prohibit INS from releasing such criminal aliens on bond while
providing them with work permits.
Current polices and practices have little deterrent effect
on re-entry by deported aliens. Rather, they foster a kind of
revolving-door that is, in the words of one Subcommittee
member, ``worthy of a feature on Saturday Night Live''. The
Department of Justice should establish policies that make clear
that all deported criminal aliens who illegally reenter the
U.S. will be prosecuted and punished to the full extent of the
law. Having increased the maximum penalty for re-entry after
deportation, Congress should consider doing the same for
failure to depart after being deported.
Countries that impede the removal of criminal aliens by
failing to issue travel documents need to understand that if
they don't take back their criminal citizens, the U.S. will
invoke procedures to restrict travel visas for other citizens
of that country. Such procedures are available under current
law, but have never been invoked by the Justice Department or
State Department.
Finally, as previously pointed out, some local
jurisdictions have passed laws or adopted official policies
prohibiting cooperation of their employees with the Immigration
and Naturalization Service. Officials of some of these same
local governments have often complained most loudly about the
federal government's failure to stem the tide of illegal
immigration across our borders. Congress should adopt
legislation to discourage such local policies of non-
cooperation. Senator Roth offered an amendment to the Senate
crime bill, which was adopted 93-6,\4\ that would cut crime
bill funding to entities that adopt such official policies of
non-cooperation.
\4\ Roth Amendment Number 1150, entitled, State and Local
Cooperation with the United States Immigration and Naturalization
Service, November 9, 1993, Congressional Record, S 15427-S 15429. Roll
Call Vote Number 364. The Amendment was not included in the Conference
Report and thus was not part of the final 1994 Crime Bill which was
signed into law.
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Criminal Aliens in America
The Immigration and Naturalization Service reported that a
record 873,000 new immigrants became legal permanent residents
of the U.S. in 1993. As usual, the number of persons seeking
legal entry from foreign nations, approximately 3.2 million
according to the INS, far exceeded the number of visas issued.
The total resident alien population is estimated to lie
between 12 and 15 million persons.\5\ Aliens who are in the
U.S. illegally, are known as ``illegal aliens.'' INS reported
that 1.2 million aliens were apprehended entering the U.S.
illegally in 1992,\6\ and INS estimates that in 1993 there were
about 3.5 million illegal entries into America.\7\
\5\ INS Statistics Department figures provided January, 1994
\6\ INS Statistical Year book, 1992, page 143.
\7\ INS applies a rule of thumb to estimate illegal entries: for
every apprehension they estimate that there are two aliens Statistics
Office, January, 1994.
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This investigation concentrated on ``criminal aliens'' and
how the U.S. Government responds to that problem. Criminal
aliens are non-U.S. citizens residing in the U.S. who commit
serious crimes for which they may be deportable. The person may
or may not have entered the U.S. legally. While the term
``criminal aliens'' is not specifically defined statutorily, it
applies mainly to aliens convicted of ``aggrevated felonies''
or crimes involving moral turpitude. Aggrevated felonies are
defined in the Immigration Act of 1990, while definitions of
moral turpitude depend on state law.
While there are no completely dependable figures for the
number of criminal aliens in the United States, a combination
of INS and GAO statistical data leads to a conservative
estimate of 450,000 criminal aliens in the criminal justice
system at any given time. The fact that many criminal aliens
have entered the U.S. illegally helps explain why so many
aliens are involved in crime their illegal situation conveys an
``outlaw'' status, often leading them into the shadowy realms
of criminal lifestyles. The point was made succinctly in
Congressional testimony by a former Commissioner of the INS,
``Those entering the United States illegally have no legitimate
sponsors and are prohibited from holding jobs. Thus, criminal
conduct may be the only way to survive''.\8\
\8\ Testimony of Gene McNary before the Subcommittee on
Information, Justice, Transportation and Agriculture of the Committee
on Government Operations, U.S. House of Representatives, March 30,
1993, at page 126.
While estimates of the exact number of criminal aliens in
America are quite large, the number of criminal aliens deported
each year is much smaller. The INS reported deporting about
19,000 criminal aliens in FY '93--approximately four percent of
the estimated total of criminal aliens in the U.S. At that
rate, assuming no additional aliens commit crimes here, it
would take more than 23 years to deport all the criminal aliens
in the United States.
The Investigation
The Subcommittee's investigation began in June, 1993 and
culminated with hearings before the Subcommittee in November,
1993. All aspects of the Government's efforts related to
criminal aliens were considered in the investigation,
including: the identification of criminal aliens; notification
of the INS that a confined person may be deportable; record
keeping; detention of criminal aliens; case handling by prison
officials; adjudication by the Executive Office of Immigration
Review (EOIR), the adjudicative body that hears appeals from
the INS regarding the administration and interpretation of
immigration law; the appeals process; actual deportation; and
fugitive apprehension.
In conducting the investigation, Subcommittee staff
observed border operations at Chula Vista, California, and
interviewed officials in California representing local jails,
the state prison system and local offices of INS and the
Executive Office of Immigration Review. Staff also met with INS
officials in Philadelphia, Pennsylvania, and with Delaware
state prison officials in Wilmington, Delaware. In Washington,
DC, staff extensively interviewed officials from the INS, the
EOIR and the Federal Bureau of Prisons. Several Institutional
Hearing Program (IHP; explained below) locations were visited
including sites at California's Donovan State Prison, the Los
Angeles County Jail, and the Federal facilities at Oakdale,
Louisiana.
The Subcommittee conducted two days of hearings under the
direction of Senator William V. Roth, Jr., then the Ranking
Minority Member, with the concurrence of Senator Sam Nunn, then
the Subcommittee Chairman. At the November 10, 1993 hearing,
the Subcommittee heard testimony from the minority staff
regarding the findings of the investigation, as well as
testimony by three criminal aliens who were serving sentences
for a variety of crimes they had committed while in the U.S. On
November 16, 1993, Immigration and Naturalization Service
Commissioner Doris Meissner, along with other INS officials,
responded to questions from Subcommittee Members. Also
testifying on November 16 were Chief Immigration Judge Jere
Armstrong of the Executive Office of Immigration Review, and
Immigration Judge Thomas Fong from Los Angles, California.\9\
\9\ This investigation was conducted by the Minority Staff of the
Permanent Subcommittee on Investigations at the direction of Ranking
Minority Member, Senator William V. Roth, Jr., with the concurrence of
the Subcommittee's Chairman, Senator Sam Nunn. It was authorized
pursuant to Senate Resolution 62, adopted February 28, 1991, and Senate
Resolution 71, adopted February 25, 1993, which empower the
Subcommittee to investigate ``the efficiency and economy of operations
of all branches of the Government including the possible existence of
fraud, misfeasance, malfeasance, collusion, mismanagement,
incompetence, corruption, or unethical practices, waste, extravagance,
conflicts of interest, and the improper expenditure of Government
funds'' and ``all other aspects of crime and lawlessness within the
United States which have an impact upon or affect the national health,
welfare, and safety. * * *''
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the Challenge of Criminal Aliens in America
While there is a continuing debate in our Nation concerning
what to do about crime and criminals, a consensus seems to
exist regarding criminal aliens. That is, there is just no
place in America for non-U.S. citizens who commit criminal acts
here. America has enough criminals without importing more. That
consensus, however, has not solved the problem. In fact, simply
put, a significant portion of America's law enforcement
resources are currently directed toward the apprehension,
adjudication and confinement of criminal aliens.
Impact on Law Enforcement
Criminal aliens are a growing threat to the public safety
and a growing drain on scarce criminal justice resources. Our
federal and state prisons alone currently house over 53,000
aliens. As recently as 1980, this number was well below 9,000.
Aliens now account for over 25 percent of federal prison
inmates and represent the fastest growing segment of federal
prison population.\10\ A conservative estimate is that there
are 450,000 aliens who have been convicted of a crime and who
are in prison, in jail, on probation or on parole in the United
States.\11\ Criminal aliens not only occupy beds in our prisons
and jails, they also occupy the time and resources of law
enforcement and our courts. Although immigrants to the United
States have been, and continue to be, predominantly hard
working and law abiding, there appears to be a growing criminal
class among immigrants, especially among those here illegally.
\10\ In 1980, there were just 9,071 ``foreign-born'' prisoners in
state and federal prisons. By 1991 there were over 41,000 ``foreign
born'' inmates in state prisons alone. ``Historical Corrections
Statistics in the United States, 1850-1984.'' Westat, Inc., Rockville,
Maryland, 1986. According to the INS, while not all ``foreign born''
inmates are aliens, a 1991 Bureau of Justice Statistics Report
estimated that about 76% of the foreign born were aliens. ``Survey of
State Prison Inmates, 1991.'' Report by the Bureau of Justice
Statistics, Washington, D.C. 1993.
\11\ In testimony and discussion before the House Judiciary
Committee in November of 1989, officials of the INS and GAO agreed to
the estimate that 10% of persons in prisons are deportable aliens--at
one point GAO officials acknowledged perhaps as many as 20% were
deportable aliens. Applying the lower estimate of 10% to the current
prison, jail, parole and probation populations results in a estimate of
450,000 criminal aliens.
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The increase in the number of aliens in the federal prisons
is also noteworthy--the number more than doubled between 1988
and 1993. (See Table 1.) Currently, the Federal Bureau of
Prisons (BOP) confines 89,078 prisoners and 22,626 are aliens,
while in 1988 BOP confined 50,553 prisoners and 10,647 were
aliens.\12\
\12\ Figures provided by the Bureau of Prisons, Office of Research
and Evaluation, PSI Hearings on Criminal Aliens in the U.S., Exhibit
38.
The five states most heavily burdened by alien prisoners,
according to a 1992 survey by the National Institute of
Corrections, are: California (10,575, 10.4 percent of prison
population); New York (7,168, 12.4 percent of prison
population); Florida (3,313, 7 percent of prison population);
Illinois (2,912, 1 percent of prison population) and Texas
(2,187, 4.3 percent of prison population).\13\
\13\ Unpublished report, National Institute of Corrections, 1992.
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Approximately 47 percent of state and 36 percent of federal
alien prisoners are from Mexico. States confine large numbers
of aliens from the Caribbean (26 percent), and from Central and
South America (14 percent). Crimes for which aliens are
confined are primarily drug related (45 percent) or violent (34
percent). The federal prison system confines many people from
Colombia (20 percent); Cuba (9 percent); and the Dominican
Republic (6percent). The BOP confines an even higher percentage
of aliens convicted of drug offenses, nearly 80 percent of the
total number of confined aliens.\14\
\14\ Figures are taken from the ``Survey of Prison Inmates, 1991'',
Bureau of Justice Statistics, Washington, D.C., 1993. Also figures were
provided by the BOP's Office of Research and Evaluation, PSI Hearings
on Criminal Aliens in the U.S., Exhibit 38.
Considerable taxpayer dollars are being spent policing,
adjudicating, confining, and deporting criminal aliens. In
1990, state, local and federal governments directed over $74
billion tax dollars for law enforcement activities. A full year
of imprisonment (which of course is only a part of law
enforcement costs), according to a recent Bureau of Justice
Statistics report, costs approximately $15,600, per
prisoner.\15\ The number of state and federal aliens in prison
in 1990/91 (estimated to be 46,000 using figures from the
Bureau of Prisons and the Bureau of Justice Statistics), can be
multiplied by the annual per capita cost (estimated at $15,600)
to produce a conservative cost estimate of approximately $724
million for confinement alone of criminal aliens.\16\
\15\ ``Census of State and Federal Correctional Facilities, 1990''
Bureau of Justice Statistics. Washington, DC 1992.
\16\ This cost estimate is likely to be low. First, the BJS used
survey methods to estimate the number of state alien prisoners. Such
prisoners would be expected to under report their alien status. That is
because many aliens in prison may feel it would be risky to disclose
their alien status to government officials. Similarly, the cost figures
from 1990 are dated, and are presumed to be low. One non-federal
source, ``The Corrections Yearbook, 1993'' estimates that in 1992 the
average cost of confining one prisoner for one year exceeded $18,250.
The Corrections Yearbook, 1993'' Camp and Camp, South Salem, New York,
1993.
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These cost estimates are conservative because they do not
account for the costs of criminal aliens in local jails and on
probation and parole. How many aliens are in jails on probation
or parole? In some locales, the number cycling through local
jails is very high. In Los Angeles, about 22,000 deportable
aliens pass through the county jail annually judging from the
results of several studies.\17\
\17\ Reports prepared by the Los Angeles Countywide Coordination
Committee, November 1990, July 1992 and November 1992.
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The exact number of criminal aliens on probation and parole
is unknown but it can be estimated since parole populations
tend to be very similar to prison populations. While not all
criminal aliens on probation or parole have committed
deportable offenses, most probably have. There are more persons
on probation (2,670,234) than under any other form of
correctional supervision. According to the Justice Department's
Bureau of Justice Statistics, more than half of all persons on
probation in 17 states across 32 counties committed felony
crimes.\18\ At the time sentences were delivered, 27 percent of
those convicted of a violent felony (murder, rape, robbery, and
aggravated assault) received a straight probation sentence, or
a jail-probation sentence. We would therefore expect
significant numbers of deportable persons to be under the
supervision of probation authorities.
\18\ ``Recidivism of Felons on Probation, 1986-89'' by Langan,
Patrick A., and Cunniff, Meck, BJS Special Report, February 1992.
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Also excluded from the $724 million estimate are the cost
of INS resources used to investigate, detain and deport
criminal aliens. Nor does this estimate include the heavy law
enforcement costs of investigation and apprehension. Of course,
criminal aliens also take up prison space which could be used
for other prisoners. Some expensive additional prison
construction could likely be avoided were it not for this
displacement of bed space by criminal aliens. One former INS
Commissioner has estimated the aggregate cost to U.S. taxpayers
of criminal aliens to be in the billions.\19\
\19\ Testimony of former INS Commissioner Gene McNary before the
Subcommittee on Information, Justice, Transportation and Agriculture of
the Committee on Government Operations. U.S. House of Representatives,
March 30, 1993 at page 126.
In 1992 the INS deported 18,375 criminal aliens. While this
is a 30 percent increase from 1991 and more than double the
number deported in 1990,\20\ these figures mask the fact that
criminal aliens stream back across the border in large numbers
following deportation--especially along the southwest border.
While reported arrests for re-entry are not very high,\21\
anecdotal evidence suggests that re-entry after deportation is
widespread and that deportation is not a significant deterrent
to re-entry. That may be in part because some U.S. Attorney's
offices have policies that limit re-entry prosecutions to
offenders who have multiple illegal reentries and multiple
felony convictions. Other districts have informal caps on the
number of re-entry cases they will prosecute.\22\ Even when re-
entry cases are prosecuted, they are often plea bargained to a
minimal sentence, even though the maximum potential sentence
for re-entry after deportation is 15 years.
\20\ Briefing document for the Commissioner of the INS, 1993
prepared by the Detention and Deportation Division.
\21\ In 1992 the INS reported that, for FY 1991, 461 aliens were
arrested by the INS for illegal re-entry following their deportation,
1992 INS Report to Congress.
\22\ Data was provided to the Permanent Subcommittee on
Investigations by the United States Department of Justice. Washington,
D.C., October, 1993. PSI Hearings on Criminal Aliens in the United
States, Exhibit 29. (Exhibit 29 is sealed and held in the files of the
Subcommittee.)
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laws governing criminal aliens
For much of this country's history there has been no
comprehensive body of immigration law and no laws at all
addressing criminal aliens. The Federal government first
assumed an active role in immigration policy with the enactment
of the first general immigration statute in 1882. The 1882
statute addressed criminal aliens by barring the entry of so-
called undesirables, including convicts, mental defectives and
paupers. The Act did not, however, provide for the deportation
of aliens who committed crimes after entering the U.S.
In 1917 and 1924, restrictive immigration legislation was
enacted. The 1917 Act included the first criminal ground for
deportation, providing for the deportation of aliens who
committed ``serious crimes'' within five years after entry. The
Act also provided for deportation of aliens without limitation
on length of time after entry, who after entry proved to be
``criminals of the confirmed type.'' \23\
\23\ See Senate Report 64-352 (64th Congress, 1st Session, December
7, 1916).
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The Immigration and Nationality Act (INA) of 1952 was a
major recodification and revision of the immigration laws. The
INA carried forward many of the elements enacted in 1917 and
1924. It expanded federal authority for deporting certain
criminal aliens and specified ``crimes of moral turpitude''
\24\ as crimes that could subject an alien to deportation.
Criminal alien policy continues to operate under the framework
established in 1952 by the INA.
\24\ Crimes of moral turpitude include murder, manslaughter, rape
and sodomy.
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Under the INA, the INS may apprehend and deport criminal
aliens who have been: (1) convicted of a crime involving moral
turpitude committed within five years of entry and sentenced to
confinement for a year or more, or (2) convicted of two or more
crimes involving moral turpitude, not arising from a single
action, at any time after entry regardless of whether
confined.\25\ Aliens convicted of drug and firearm offenses are
also deportable. Once deported, aliens are considered to be
excludable, which means they cannot reenter the country for 5
years after deportation without the permission of the Attorney
General. Re-entry after deportation is a felony.
\25\ INA Section 241(2), [8 U.S.C. 1251].
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The next major piece of immigration legislation that
included provisions addressing criminal aliens was the
Immigration and Control Act of 1986 (IRCA).\26\ IRCA required
that the INS begin deportation proceedings against aliens with
deportable offenses as expeditiously as possible after their
convictions. IRCA authorized general increases in all
enforcement activities and contained provisions to improve
interior (areas removed from the borders) enforcement against
criminal aliens. IRCA also authorized the Attorney General to
reimburse states for costs incurred imprisoning illegal aliens
convicted of felonies. These authorizations, however, have not
been funded.
\26\ Public Law 99-603, November 6, 1986.
The Narcotics Traffickers Deportation Act (Subtitle M of
the Anti-Drug Abuse Act of 1986) significantly broadened the
range of narcotics violations subjecting a criminal alien to
exclusion or deportation. Prior to the 1986 Act, only those
aliens convicted of violating a law or regulation regarding an
``addiction-sustaining opiate'' could be deported. The 1986 law
did away with the addiction-sustaining opiate language and
replaced it with the current broader language--``controlled
substance.'' The Act also required that the INS respond
promptly to referrals from federal, state and local law
enforcement regarding alien arrests for violations of narcotics
laws.
The Anti-Drug Abuse Act of 1988 made further changes to the
INA with regard to criminal aliens.\27\ The most significant of
these changes was the creation of a new class of criminal
alien--aliens convicted of an aggravated felony. Aliens who
commit aggravated felonies are deportable, and are subject to
different treatment under the law than other deportable
criminal aliens. For example, aggravated felons are precluded
from obtaining certain types of relief that non-aggravated
felons may seek. Aggravated felonies include drug trafficking,
firearm offenses, money laundering, certain crimes of violence
and murder.\28\ For the purposes of the aggravated felony
definition, drug trafficking has been broadly defined as ``any
trade or dealing, and any drug trafficking crime.'' \29\
\27\ Public Law 101-649, 104 Stat. 4978.
\28\ INA section 101(a)(43), [8 U.S.C. S. 1101 (a)(43)].
\29\ Gordon and Mailman, ``Immigration Law and Procedure'', Vol. 3
(1993), section 71.05[2][b], citing Matter of De La Cruz, 9 Immigration
Report or B1-93 (I.D. 3155 BJA 1991).
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The 1988 Act required, among other things, that an alien
convicted of an aggravated felony: be taken into INS custody
upon completion of his sentence; be ineligible for release
under bond; and be ineligible for voluntary departure unless
the alien is a permanent resident, is not a threat to the
community, and is likely to appear for his hearing. The clear
intention of this provision is to prevent the very worst of the
criminal aliens from further endangering the public and from
being able to flee before deportation. This provision, however,
was weakened substantially by a later ``technical amendment,''
which allowed not only aggravated felons who are permanent
resident aliens to be released, but also all aggravated felons
who entered the country legally even though they may have
quickly become illegal.\30\
\30\ See INA Section 242(a)(2)(B) as amended by The Immigration Act
of 1990, Section 504(a)(B), of the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991, Section 306(a)(4).
---------------------------------------------------------------------------
The 1988 Act also mandates a 24 hour alienage determination
capability so that the INS could respond to law enforcement
inquiries, and an INS computer system to maintain records of
aliens convicted of aggravated felonies who have been deported.
The Act further mandated that the INS institute special
deportation proceedings within correctional institutions for
aliens convicted of aggravated felonies to eliminate the need
for detention and to ensure expeditious deportation.
The Immigration Act of 1990 \31\ (IMMACT 90) contained
several provisions dealing with criminal aliens. A provision to
aid the INS in deporting criminal aliens, known as section 507,
required that states provide the INS notice of convictions of
aliens and provide any requested certified record of
conviction, without fee, within 30 days of a request by INS.
\31\ Public Law 101-649, 1990.
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While the U.S. has had a basic legal framework for
addressing the problem of criminal aliens since 1917,
subsequent immigration law changes as evidenced in the 1965
Act, and most recently IRCA and IMMACT 90, have dealt with the
problem of criminal aliens mostly as an afterthought. In fact,
no major immigration legislation has focused exclusively on the
problem of criminal aliens. Rather, legislation governing
treatment of criminal aliens has been enacted in a piecemeal
fashion.
It is clear that our immigration laws governing treatment
of criminal aliens need reevalution--particularly those
governing deportation and appeals. In several instances, the
requirements of the law are not being met. In other instances
current law is ill conceived.
ins alien criminal apprehension program
INS implemented its Alien Criminal Apprehension Program
(ACAP) in 1986. The goals of the program are: to identify,
locate and initiate removal proceedings against criminal
aliens; to ensure expeditious removal of convicted alien
criminals; and to create an effective deterrent against aliens
seeking entry into the United States for the purpose of
engaging in crime.\32\
\32\ Testimony of Cynthia J. Wishinsky, Director, Criminal Alien
Branch, before the Information, Justice, Transportation and Agriculture
Subcommittee of the House Committee On Government Operations, August
31, 1993.
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Although the INS claims to carry out its Alien Criminal
Apprehension Program through practice and reactive measures, a
large part of INS resources appear to be devoted to a reactive
strategy. This reactive strategy aims to identify criminal
aliens already involved in the criminal justice system for
reasons other than immigration violations, and to institute
deportation proceedings against those criminal aliens. Under
this strategy, if everything works properly, the criminal alien
is identified while incarcerated in a local, state or federal
correctional facility. INS determines whether the criminal
alien is potentially deportable and, if so, places what is
known as a detainer on the on the alien (the detainer requests
that the correctional system incarcerating the criminal alien
notify INS before it releases the criminal alien so that INS
can physically detain or conditionally release the criminal
alien pending removal). INS then institutes a deportation
proceeding against the criminal alien and finally, after the
deportation hearing process has been completed, deports the
criminal alien.
Within the Alien Criminal Apprehension Program, the INS has
several ``sub-programs.'' One such program is the so-called
Five State Criminal Alien Model. This program focuses INS
resources on states with the highest concentration of foreign-
born inmates: California, New York, Texas, Florida and
Illinois. The program seeks, through discussion and agreement
among federal, state and local entities, to improve
identification, processing and removal of criminal alien
inmates.
Another program within the Alien Criminal Apprehension
Program is the Institutional hearing Program (IHP). The IHP is
a cooperative program between the Executive Office of
Immigration Review the INS, seven federal prisons, 68 state
prisons and Los Angeles County Correctional System. The IHP
allows the INS and the Executive Office of Immigration Review
to begin deportation proceedings for criminal aliens during
their incarceration for their underlying criminal convictions.
The IHP is designed to Immigration Reform and Control Act
mandate that the INS begin deportation proceedings against
aliens with deportable offenses as expeditiously as possible
after their convictions, while also serving to reduce INS
detention costs by deporting criminal aliens prior to their
release from prison. As previously noted, however, the INS is
required by current law to detain only a small percentage of
criminal aliens after their release from federal, state or
local incarceration. Although the 1988 Anti-Drug Abuse Act
mandates that INS detain all aggravated felons after their
release from prison pending their deportation, IMMACT 90
permits discretionary release on bond in deportation cases for
aggravated felons who entered the U.S. legally.\33\
\33\ INA Section 242(a)(2)(A), 8 U.S.C. Section 1252(a)(2)(A), as
amended by Section 504 of IMMACT 90.
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As part of the Alien Criminal Apprehension Program, the INS
also uses several central facilities established to detain
criminal aliens received into its custody. One such facility is
the Federal Detention Center (FDC) in Oakdale, Louisiana. The
INS moves some criminal aliens who have completed their
sentences in state, local and federal facilities from locations
throughout the country to Oakdale FDC for their immigration
hearings. Also, INS's Service Processing Center in San Pedro,
California is used as a centralized detention facility for West
Coast Criminal aliens.
INS claims ACAP ``is an extremely effective and efficient
use of INS resources because these aliens have already been
arrested and detained or incarcerated, thus minimizing the
expense and effort which would otherwise be required for INS to
locate and detain them.'' \34\ However, based on the
Subcommittee's investigation, the program appears to have
little real impact in dealing with the large criminal alien
population in most states.
\34\ Id at pp. 4-5.
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Failure to Effectively Combat the Growing Problem of Criminal Aliens
The Subcommittee found serious and long-running problems
with INS efforts to deal with criminal aliens. These problems
exist at the initial identification stage, the final
deportation stage, and most points in-between. In addition, the
Subcommittee found that the INS cannot accurately measure the
extent of the criminal alien problem nor its response to that
problem because its record keeping system is so limited.
INS Record Keeping System
The INS record keeping system for criminal aliens is
outdated and seriously flawed. The system's many failures allow
criminal aliens to easily evade INS detection. These failures
stem from the fact that the INS does not have a central record
keeping system for specifically tracking criminal aliens.
Moreover, the central record keeping system which INS does have
is name-based and thus unable to readily identify those
criminal aliens who employ multiple aliases.
INS assigns all immigrants, excluding tourists, an ``A''
number and creates a paper file for each individual which is
known as an ``A-file.'' Once an A-file is established, certain
limited information from the file, including name and date of
birth, is fed into the INS central index system. The central
index system can be accessed by INS officials nationwide. To
access the central index system, an INS official enters the
name of someone whose record must be reviewed. If the system
identifies more than one individual with that name, a date of
birth can be entered to further narrow the search. Once a
specific individual is identified through the central index
system, the searcher can then access a limited amount of
information, including the officer where the A-file is
physically located. (An A-file is typically stored in the
district office where it was opened.) The INS officer can then
request the file.
A major weakness of the central index system is that it is
name-based. Criminals, including criminal aliens, tend to use
multiple names or aliases. One study, for example, found that
the typical criminal alien used an average of seven
aliases.\35\ If a criminal alien who is already in the central
index system and has an A file is arrested under an alias, a
query of the INS central index system will provide no match. If
some INS action is required, the agent handling the case may
not learn of the already existing file on the individual, and
consequently will open a new A-file for this ``newly
encountered'' alien. It is thus not uncommon for a criminal
alien to have multiple A-files in the INS record system, with
each file showing only part of the alien's criminal and
immigration history.
\35\ Impact of Repeat Arrests of Deportable Criminal Aliens in Los
Angeles County, Final Report, July 15, 1992, Ad Hoc Subcommittee on
Criminal Aliens, at p. 15. PSI Hearings on Criminal Aliens in the
United States, Exhibit 30.
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The case of Jose Carmen Encarnacion illustrates the
system's flaws. In 1976, Encarnacion entered the U.S. illegally
from his country of citizenship, the Dominican Republic.
Encarnacion was apprehended and then deported back to the
Dominican Republic in 1977. At some point before 1980,
Encarnacion re-entered the U.S. and proceeded to commit a
series of serious crimes in the New York area. He was
eventually arrested, convicted and incarcerated by New York
authorities for several years. After being released from
prison, he was not deported, detained by INS or prosecuted for
re-entry, even though he has re-entered after deportation in
violation of the law. Subsequently, Encarnacion was arrested in
New York and Louisiana, but fled both states. In 1988,
Encarnacion was apprehended in Puerto Rico where he admitted to
immigration officials that he had entered the U.S. illegally.
Although Encarnacion was deported for the second time, INS
officials were apparently not aware of his earlier deportation
because he was using an alias. In any event, he was not
prosecuted for re-entry after deportation. In fact, between
1977 and 1988, Encarnacion used a minimum of 10 different names
and five different dates of birth. INS created an immigration
file for Encarnacion in 1977 and a second separate file for him
using a different name and date of birth in 1988.
Encarnacion returned to the U.S. after his second
deportation in 1988 and proceeded to commit, and eventually be
arrested for, a series of crimes. After 16 years of criminal
activity in the United States, and 13 years after having been
first deported, Encarnacion has now, for the first time, been
prosecuted for re-entry after deportation. Although
Encarnacion's fingerprints were taken many times, including
several times by the INS, the INS did not, and does not, have
the capability to search its files using fingerprints as
identifiers. This prosecution occurred only because the INS
discovered that Encarnacion had been deported several times
after an agent's suspicion led to a manual search of
fingerprint records to determine that Encarnacion had been
previously deported under different names.
INS's difficulties with identification and subsequent
tracking of criminal aliens are well documented \36\ and were
discussed at length during the Subcommittee's hearings. INS
Commissioner Meissner explained that the INS has initiated
several major systems automation initiatives for positive
identification and information sharing using biometric data
such as fingerprints. INS Assistant Commissioner Kleinknecht
added that seven western states banded together and developed a
quick turnaround fingerprint-based identification system which
INS offices in that region routinely access.\37\ However, other
states have no such capability and the INS is relying on the
FBI to develop and make available its national ``AFIS''
system.\38\ At the time of the Subcommittee's hearings, INS
officials were unable to determine exactly when a fingerprint-
based system would be available to the INS nationwide.
Subsequently, on June 2, 1994, INS officials announced a new
program to develop an automated fingerprint based
identification system. Assuming adequate funding, this system
is projected to be in place within three years. However, the
system will include future records only and there are no plans
to convert the estimated 43 million ``A'' files to a
fingerprint based system.
\36\ For example, see GAO investigation on Criminal Aliens, INS'
Enforcement Activities (GAO/GGD-88-3), November, 1987.
\37\ Unfortunately, alien identification is assigned a low priority
in this system and response time is reported to be quite slow.
\38\ Automated Fingerprint Identification System
---------------------------------------------------------------------------
ins identification of criminal aliens in the criminal justice system
Currently, the INS falls far short of its stated objective
to ``systematically identify, locate and initiate removal
proceedings against criminal aliens, whether or not
incarcerated.'' \39\ The Subcommittee's investigation found
that the majority of criminal aliens identified by the INS are
those who are incarcerated in state or federal prisons.
However, since correctional officials are not trained to
determine alien status, the INS usually relies on lists of
foreign born inmates supplied by correctional officials to make
an initial identification of potentially deportable criminal
aliens. Under these circumstances, deportable criminal aliens
can and do avoid detection and deportation by simply claiming
to be U.S. born. One INS district director told staff that INS
agents noticed that a particular state prison system had an
unusually high number of inmates from the U.S. Virgin Islands
and Puerto Rico. On closer inspection it was discovered that
inmates from other Caribbean nations were routinely claiming to
have been born in the U.S. Virgin Islands or Puerto Rico in an
effort to avoid identification as criminal aliens.
\39\ Wishinsky testimony, August 31, 1993, at p. 4.
Another more serious problem is that many state corrections
systems and most county and local jails are not systematically
monitored by the INS in an effort to identify criminal alien
felons who are deportable. Moreover, no effort is made by INS
to identify deportable alien felons who receive probation
rather than sentences of incarceration. When one specific local
court in California was carefully screened for aliens, about 36
percent of the total docket involved criminal aliens and more
than half of all cases were probation violators.\40\
\40\ This project involved a joint effort of the Orange County
California Superior Court and INS. Statement of David O. Carter before
the Committee on the Judiciary, Subcommittee on Immigration, Refugees,
and International Law, U.S. House of Representatives, November 1, 1989
at page 12.
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While INS officials understand that the current
identification strategy focused entirely on prisons misses many
criminal aliens, they defend the policy on grounds of lack of
resources. As INS Assistant Commissioner Jack Shaw testified
before the Subcommittee:
In New York City alone there are 14 courts. So while
I would agree in concept that we have to see how we can
bring our resources to bear more effectively, the fact
is if we move away from the penitentiary system where
the ``worst of the worst'' are incarcerated and try to
move at this point into probationers and parolees or
into putting investigators into monitoring court
dockets, it is beyond our capability or capacity.\41\
\41\ Testimony of Assistant Commissioner Jack Shaw, PSI Hearings on
Criminal Aliens in the United States, November 16, 1993, pp. 39-40.
There are 7,665 correctional facilities and offices in the
United States and only about 1,100 INS investigators. Moreover,
investigators do not work exclusively or even primarily on
criminal alien matters. However, the wisdom of using highly
trained investigators to do relatively routine monitoring of
prisons is questionable. Commissioner Meissner acknowledged
that using investigators in this capacity was inefficient and
explained that the Office of Personnel Management and the
Department of Justice had approved a para-professional position
for ``Investigative Agent'' at the GS 5-9 level.
INS has only one program in the nation--at the Los Angeles
County jail--designed to identify criminal aliens at the county
jail level. A review of the INS Institutional Hearing Program
at this facility revealed marked deficiencies; namely that
deportable criminal aliens are being missed (i.e., not being
identified as such) as too few cases are being presented to
immigration judges.
The Los Angeles County jail system is one of the largest in
the world, holding approximately 20,000 inmates at any given
time. According to the Los Angeles County Sheriff's Office, the
average inmate's stay is 30 days, with over 260,000 prisoners
passing through the system each year.\42\ Thus, inmate
population turnover is very high. A 1990 study estimated that
11 percent of the inmates in the Los Angeles County jail system
are deportable criminal aliens.\43\ Based on these numbers, it
can be estimated that more that 20,000 criminal aliens pass
through the Los Angeles County Jail each year. However, in FY
1993, only 642 criminal aliens cases were reviewed by
immigration judges in the IHP at this facility.
\42\ Staff interview with Alan Chancellor, Area Commander, Custody
Division, Los Angeles County Sheriff, September 1, 1993.
\43\ Criminal Aliens in the Los Angeles County Jail Population,
Final Report 1990, Ad Hoc Subcommittee on Criminal Aliens. PSI Hearing
on Criminal Aliens in the United States, Exhibit 25.
The Institutional Hearing Program at the Los Angeles County
Jail is a cooperative effort of the INS, the Executive Office
of Immigration Review, and the Los Angeles County Sheriff's
office. The Sheriff's office provides the INS with a list of
new foreign-born inmates each day. The INS reviews that list
and interviews inmates periodically. Most of these interviews,
however, are conducted just prior to when the prisoners are due
to be released from custody, leaving the INS little time to
act. INS officials assert that detainers are placed only on the
worst cases, as time permits.
Although the EOIR assigns an immigration judge to the Los
Angeles County Jail one day each week, that judge often has few
cases presented to him under the IHP. A review of EOIR records
shows that as few as six criminal alien cases were presented to
EOIR judges on a given day even though an immigration judge can
adjudicate up to 30 cases in a half-day session. Los Angeles
Immigration Judge Thomas Fong explained in his testimony that
the cases presented to him are mainly cases that can be
completed before prisoners are released. There are simply not
that many criminal aliens who are likely to serve the 60-90
days required to complete a review.
It is clear that deportable criminal aliens are being
missed by this program. In a 1992 report to the Congress, INS
asserted that, ``Cases filed for inclusion in the IHP must meet
certain EOIR criteria for acceptance'' and that cases are
selected so as to ``conserve limited EOIR judicial resources
and ensure sufficient time for the case to be heard in a
deportation hearing prior to release of the alien.'' \44\
However, EOIR contends that it is the responsibility of the INS
to issue charging documents to initiate deportation
proceedings.\45\ Clearly, the Justice Department needs to
reconcile the conflicting views of INS and EOIR.
\44\ Immigration Act of 1990 Report on Criminal Aliens. Report to
Congress by the INS, April 1992, at page 7.
\45\ In response to written questions from the Subcommittee, Judge
Jere Armstrong Stated, ``At the trial level, INS charging documents
initiate deportation, exclusions and rescission hearings.'' PSI
Hearings on Criminal Aliens in the U.S., Exhibit 42.
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targeting of quick deports
INS targets those criminal aliens in prison who are likely
to be easily deported--so-called ``quick deports.'' These
``quick deports'' are predominately Mexican or Central American
nationals, who are in the U.S. illegally and have usually been
convicted of drug offenses. This policy, while substantially
inflating INS deportation statistics, serves as an ineffective
revolving deportation door for many criminal aliens. Although a
1992 report to Congress reported that INS agents encountered
and arrested only 461 criminal aliens who had re-entered the
U.S. in fiscal year 1991 after deportation, the Subcommittee
believes that the number of such re-entries is many times
higher because of the problems with the system outlined below.
Since deported criminal aliens are unlikely to be
sanctioned if they reenter the U.S. after deportation, ``quick
deports'' too often become ``quick returns.'' This problem is
compounded by the fact that many U.S. Attorneys are reluctant
to prosecute criminal aliens for re-entry after deportation.
Moreover, as previously mentioned, criminal aliens often
confuse the INS with their use of multiple aliases. Further, it
is unlikely that criminal aliens who re-enter the United States
will be identified even if they use their real names because
frustrated INS officials run no checks on most aliens
apprehended at the Mexican border. The upshot is that
deportation is too often at worst an inconvenience for criminal
aliens, and at best a free trip home for a short visit before
they return to the U.S.
The Institution Hearing Program (IHP) as it is currently
conducted, targets these individuals as quick deports.
The EOIR has eligibility criteria to determine which
criminal aliens will have their removal cases heard in the IHP.
These criteria serve to weed out contested or complicated
removal cases. With the IHP focused on quick deports, a single
immigration judge can easily adjudicate large numbers of cases
in a short period of time.
The IHP hearings observed by Subcommittee staff typically
involved less than five minutes each. The immigration judge has
the criminal alien identify himself, informs the criminal alien
of the charges against him or his rights, gives the criminal
alien the opportunity to make objections and then, when no
objections or motions are made, orders the criminal alien
deported. A significant percentage of criminal alien
deportations are of criminal aliens who do not contest their
deportation and in many cases even wish to be deported.
Once the INS receives travel authorization from the country
to which the criminal alien is being deported, the alien is
transported to that country at INS expense. Mexican nationals
ordered deported through the IHP at California's Donavan State
Prison, conveniently located a few miles from a Mexican border
checkpoint, are loaded in buses, driven to the checkpoint and
handed over to Mexican authorities or simply released into
Mexico.
Given the inadequacies of the INS record system, even if a
deportee is arrested by the Border Patrol for border jumping,
or attempting to cross the border illegally, it is very
unlikely that the Border Patrol would be able to identify the
alien as a recent deportee. Moreover, since many federal
prosecutors, particularly along the Southwest border, limit the
number and types of individuals they will consider for
prosecution for the crime of re-entry after deportation, there
is little deterrence to re-entry even if a deported alien is
unlucky enough to be arrested and properly identified.
Furthermore, even when such prosecutions are undertaken, they
are typically plea bargained down substantially from the 15-
year maximum sentence which Congress has provided for re-entry
after deportation.
The case of Manuel Castillo-Catalan is an example of how
``quick deports'' are often also ``quick returns.'' Catalan is
a Mexican national who was first deported in 1984 after serving
seven years for second degree murder. Catalan did not contest
his deportation. After being ordered deported, Catalan was
driven by bus to a Mexican border town. Catalan returned to the
U.S. one week later, was arrested a short time after returning,
and was deported a second time in 1984. Catalan was again
driven to the same Mexican border town from which he had
returned to the U.S.
In 1989, Catalan was arrested on a narcotics charge. After
spending several years in a California prison, he was deported
for a third time on June 26, 1992. Catalan had not contested
his deportation and was again driven to the Mexican border. On
June 27, 1992, Catalan returned to the U.S. In December 1992,
Catalan was arrested and for the first time was charged with
the crime of re-entry after deportation, and is now serving a
sentence of 57 months.
Another example of the ``quick deport, quick return''
problem is Richard Simons, a criminal alien who testified
before the Subcommittee.\46\ Simons is a 26 years old Canadian
citizen who has been deported 3 times. He never contested any
of his deportations. Simon first entered the U.S. illegally in
1986. After apprehension and conviction for felony crimes of
theft and stolen property, he was deported in 1988. He re-
entered the U.S. two months later and was soon arrested in
Pennsylvania for forgery. The state sentenced him to 11-23
months for forgery, and the Federal government sentenced him to
6 months for criminal re-entry; the re-entry sentence ran
concurrently with the longer state sentence. Simons was
deported a second time in 1990. Again he re-entered the U.S.
about 2 months later. A few months after that, he was arrested
for theft, battery and possession of illegal substances. This
time he received a 27 month sentence for illegal re-entry. In
1993, he was processed expeditiously through the Oakdale,
Louisiana facility at the conclusion of his sentence and was
removed from the U.S. a third time early in 1994.
\46\ PSI Hearings on Criminal Aliens in the United States, November
10, 1993.
After his first two deportations, Richard Simons testified
that he and his friends travelled with impunity across the
border into the U.S. many times. Following both deportations he
returned to the U.S. intending to remain here indefinitely, and
each time he committed numerous felony crimes. He testified
that he does not intend to return again because he expects that
if he is convicted of criminal re-entry another time, the
sentence will be very long.
By targeting ``quick deport'' criminal aliens such as
Catalan or Simons, INS is able to report deporting significant
numbers of criminal aliens. These same criminal aliens--
typically Mexican and Central Americans with no lawful U.S.
immigration status and long criminal histories--are also the
criminal aliens most likely to repeatedly return after
deportation. These aliens are part of a revolving door that
shows little prospect of actually reducing the number of
criminal aliens in the United States. In short, ``quick
deports'' are a sham.
Moreover, there appears to be little reason for the current
practice of devoting limited judicial and prosecutorial
resources to uncontested deportations. These cases can, and in
some jurisdictions are, processed rather conveniently without
the alien even being present. In these jurisdictions, aliens
simply stipulate in writing that they wish to be deported. This
stipulation, the administrative equivalent of a guilty plea, is
accepted, and the alien is deported.
Both Judge Armstrong and Judge Fong testified that the
``quick deports'' heard in IHPs could be handled by written
stipulation, freeing judges to hear more complex cases. Texas,
for example, used written stipulation because all parties in
the District including the Court and the Bar accept the
practice.\47\
\47\ Testimony of Judge Jere Armstrong, PSI Hearing on Criminal
Aliens in the United States, November 16, 1993 at pp. 58-59.
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inability of ins to process criminal aliens for deportation prior to
their release
INS does not complete the deportation process for a large
number of criminal aliens before completion of their underlying
sentences which means that the INS has to either detain or
release them. The detention option is problematical because it
takes up limited INS bed space and because it costs money.
Release, on the other hand, is even more of a problem since
large numbers of non-detained criminal aliens never show up for
their deportation hearings. INS needs to acquire additional
detention space or better utilize existing space.
The Immigration and Nationality Act calls for the
expeditious removal of criminal aliens. The Act further
requires the INS to initiate and complete, to the extent
possible, deportation proceedings against aggravated felons
before the aliens are released from incarceration for the
underlying felony.\48\ According to the INS, the IHP was
established to help comply with this legislative mandate.\49\
Many criminal aliens, including those aggravated felons
channelled into the IHP, are not fully processed before the
release date for their underlying crime.
\48\ See Section 242A (8 U.S.C. 1252).
\49\ Immigration Act of 1990, INS Report on Criminal Aliens (April
1992).
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INS inability to efficiently process criminal aliens is
illustrated by problems at the Oakdale, Louisiana federal
criminal alien detention and processing facilities. The
Oakdale, Louisiana facilities include two federal prisons, a
federal prison camp and EOIR and INS offices. One prison (the
correctional institution) contains aliens nearing completion of
their federal sentences. the other, the detention center
jointly operated by the INS and the BOP, confines aliens who
have served state prison sentences, but have not yet completed
their removal proceedings. The EOIR hears cases from both
prisons.
The process begins in Federal prisons across the nation
when staff identify deportable criminal aliens and INS issues a
detainer. Transfers to Oakdale usually occur at the end of the
criminal aliens' sentences--typically no later than 6 months
before sentence expiration.\50\ The INS staff at Oakdale
complete most of the paper work required to deport a criminal
alien, and immigration judges hear cases in immigration courts
located within the complex. It takes approximately one month to
complete paperwork and hear an uncontested case. More
complicated cases can take considerably longer. Backlogs have
occurred at Oakdale because aliens are often received with less
than a month to serve.\51\ This has slowed the movement of
aliens out of the correctional institution considerably, and
the INS has had to absorb the expense of detention past
sentence expiration.
\50\ Until January, 1994, prisoners were required to have at least
6 months remaining on their sentences when transferred to Oakdale or to
other IHPs. This informal practice was designed to insure that
prisoners had sufficient time remaining on their sentences to complete
proceedings before their sentences expired. To increase the flow of
cases into IHPs, the Justice Department recently rescinded the 6 month
ceiling. Criminal aliens can now be sent to an IHP a month or two
before sentence expiration. The workload in IHPs across the country
should be increased because of this modification.
\51\ A court may reduce a criminal alien's sentence unexpectedly.
Prison officials may have intended to transfer the prisoner to Oakdale
with sufficient time remaining to complete a case before sentence
expiration, however such a reduction makes that impossible.
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Ideally, the detention center should receive aliens from
state facilities with most of their paperwork completed. In
fact, however, aliens arrive at the detention center from
states with little case work completed. Although the detention
center was not intended to house federal prisoners, it has had
to absorb ``spill-over'' of those alien prisoners who could not
be processed at the correctional institution prior to sentence
expiration.
The delays stem in large part from INS failure to collect
information about the identity of criminal aliens in prisons in
a timely fashion because it does not have the manpower required
to complete paperwork prior to transferring a prisoner to
Oakdale. This point is underscored by the following example.
The INS recently gained access to the Federal Bureau of
Prison's prisoner data base system, Sentry, which contains data
on prisoners' citizenship. Using this system, the INS was
immediately able to identify 6,000 additional federal prisoners
it was not previously aware of who are eligible for new INS
detainers.
Moreover, early identification of alien prison inmates by
the INS does not guarantee that the flow of prisoners to the
federal complex will take place in a timely fashion or that the
INS paperwork will be completed before they arrive. This is not
always the responsibility of INS, since some states, upon
learning that the INS wants to take custody of a prisoner when
the prisoner's sentence expires, may advance the prisoner's
release data and turn him over to the INS sooner than expected.
Although normal prison processing routines could be used to
identify criminal aliens, state prison officials view alienage
determination as a Federal responsibility and often they assign
a low priority to the task. As a result many criminal aliens in
prison will not be identified unless the INS develops a
cooperative relationship with prison officials. In Delaware,
for example, contact between corrections officials and the INS
is minimal. Upon intake, the prison staff ask prisoners where
they were born, and the response is typically accepted--
whatever it might be. In contrast, in the federal system, the
U.S. Probation Officer prepares a pre-sentence investigation on
most federal prisoners. Officers are required to document place
of birth and, if there is any doubt about a prisoner's
citizenship, probation officers are obliged to contact the
arresting agency, the INS, or even INTERPOL to determine
alienage.
Exactly what percentage of criminal alien cases are
completed prior to release is a matter of some debate. Judge
Jere Armstrong testified that in FY 93, EOIR completed 79
percent of criminal alien cases prior to release.\52\ The
statistic is impressive, but as was noted earlier, EOIR targets
the simpler cases. GAO's review of this program concluded that
only 6 percent of all criminal aliens had hearings before they
were released.\53\ Notwithstanding this debate, the fact that
serious logjams in processing criminal aliens cases persist
cannot be ignored. The Subcommittee found there are large
numbers of criminal aliens detained after their sentences
expire who create significant problems for the INS.
\52\ PSI Hearings on Criminal Aliens in the United States, November
16, 1993, p. 57.
\53\ GAO document GAO/GGD-92-85, 1992.
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lack of ins detention space
Although detaining a criminal alien pending removal
proceedings guarantees that the alien will actually appear at
those proceedings, this option is often not available due to
the INS' chronic lack of detention space. The INS has only
approximately 3,500 detention beds for criminal aliens in the
entire country and some INS districts are particularly short of
detention space. For example, the Pennsylvania district, which
also includes Delaware and West Virginia, has only 15 detention
beds. The lack of adequate detention space puts extreme
pressure on the INS to release, rather than detain, criminal
aliens. The INS can, and does, pay county jails to hold its
detainees. An additional option is for an INS District to
transfer a criminal alien to a federal facility such as the
Oakdale detention center. However, INS districts are sometimes
reluctant to utilize the transfer option since the transferring
district will also transfer its ``credit'' for a completed
deportation to the receiving district.\54\
\54\ The INS Commissioner testified that she was unaware of this
practice and indicated that she will certainly see that it is halted.
See Testimony before the PSI on November 16, 1993 at p. 46.
In the majority of cases, the need to detain criminal
aliens after they have served their underlying sentences
indicates the INS' inability to completely process criminal
aliens for removal prior to their release date. This inability
has serious ramifications: detention is costly and takes up
prison and jail space; and it puts pressure on the INS to
release criminal aliens, which greatly increases their chances
of evading removal.
According to the GAO 1992 investigation of detention
capability, INS' planned expansion of detention space, from
6,259 to 8,600 beds by 1996, would not significantly alleviate
the shortage. GAO concluded that release determinations are
made by the INS in large part, according to the number of beds
available in a particular region.\55\
\55\ GAO document GAO/GGD-92-85, 1992. Despite these problems, the
Justice Department's recently released ``Immigration Initiative'' fails
to discuss the detention space issue.
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Release of Criminal Aliens
Many criminal aliens who are released pending their
deportation never appear for their deportation proceedings. In
fact, over 20 percent of non-detained criminal aliens do not
appear for their deportation proceedings. As of 1992, the INS
reported to Congress that some 10,875 aliens convicted of
aggravated felonies had failed to report for deportation
proceedings. It appears that the INS makes limited efforts to
located and arrest those criminal aliens who fail to appear.
Although some aliens are ordered deported in absentia,\56\
deportation cannot be effectuated until the alien is
apprehended.
\56\ As many as 20-30 percent of cases in some parts of the country
are tried ``in absentia'' according to Judge Armstrong. PSI Hearings on
Criminal Aliens in the United States, November 16, 1993, p. 54.
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Some criminal aliens abscond after being issued a final
order of deportation. Under the INS practice, undetained
criminal aliens who have been ordered deported are notified
that they have 72 hours to report for deportation. This notice
is often referred to by INS officials as the ``run notice''
since, as one would expect, criminal aliens who have received
written notices to report for deportation often fail to appear
for their actual deportation. In New York, for example, in
fiscal year 1993, out of 1695 such notices to surrender sent to
criminal and non-criminal aliens, 1486, or 87.7 percent failed
to surrender. Also, in New York, there were $2.4 million in
bonds breached in fiscal year 1993. Table 2 shows the number of
criminal aliens physically removed has been less than the
number ordered deported for each year since 1989. Although the
number of deportations has risen steadily, the number of actual
physical removals has increased less precipitously, yielding a
total of 18,641 criminal aliens who have been ordered deported
but were not physically removed.
INS officials testified that the reason for the 72-hour
``run notice'' is humanitarian; it allows undetained criminal
aliens to complete any final necessary arrangements prior to
their deportation. The notice is a creature of regulation
within the INS and can be changed.\57\ Judge Fong testified
that the notice practice needs to be reexamined. He testified
that he frequently received ``motions to reopen'' cases from
aliens who had previously received the 72 hour notice. Such
motions indicated that the alien had not been physically
removed, even though the alien's removal had been ordered.\58\
\57\ Ibid, p. 30.
\58\ Ibid, p. 61.
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The INS needs to improve the use of detention bed space
they already have for criminal aliens, and the way they project
future bed space needs. For example:
At a Hearing before the House Committee on Government
Operations in mid-1993, Justice Department Inspector General
Hankinson gave several illustrations of how INS' detention
planning is ill conceived and wasteful. In 1991, for example,
the INS paid $28 million for non-INS detection facilities even
though considerable bed space was available at facilities the
INS operates.\59\
\59\ Testimony before the Subcommittee on Information, Justice,
Transportation and Agriculture of the Committee on Government
Operations, U.S. House of Representatives, March 30, 1993, p. 49-50.
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Tranfers of criminal aliens across districts are not
routine because of difficulties INS has arranging and paying
for prisoner transportation. There is also the related matter
of transferring deportation ``credit,'' which was noted above.
A 1992 GAO investigation of detention space revealed that
serious problems exist in the way the INS projects bed space
needs. Inaccurate projections will actually yield serious bed
space shortages in 1996 according to the GAO.\60\
\60\ GAO report on Detention Planning in the INS: GAO/GGD-92-83
Immigration Control.
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While the INS may need extra resources for detention space,
it has to improve the way it manages existing resources if
requests for additional resources are to be considered
credible. Adding detention space and better use of existing
space would ameliorate many problems associated with early
release of criminal aliens including: there would be fewer
``failures to appear'' and fewer would abscond after receiving
deportation orders; the 72-hour ``run notice'' would be
unnecessary; and it would be unnecessary to expend resources
locating fugitives or contracting for bed-space.\61\
\61\ The 1994 crime bill authorized additional resources for the
INS to address the criminal alien problem, including $160 million (for
1995-98) for two criminal alien detention and processing centers. The
crime bill also authorized $675 million to improve border controls by
increasing Border patrol personnel by at least 1,000 positions each
year from 1995-98. The crime bill also authorized $18.4 million (for
1996-2000) for the operation of a criminal alien tracking center; $338
million (for 1995-98) for expedited deportation of aliens who have been
denied asylum; and $1.8 billion (1995-2000) for the Attorney General to
contract with states or localities for the incarceration of criminal
aliens.
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current procedures allow delay and abuses of deportation process by
criminal aliens
Criminal aliens who wish to contest their deportations have
a host of avenues by which to do so. As Figure 3 shows, the
deportation process for criminal aliens is byzantine to say the
least.
Some criminal aliens attempt to prevent their deportation
by filing an asylum claim at some point before, during or after
their deportation hearing. In 1992, out of 8,273 IHP cases
alone, 219 criminal aliens filed asylum claims. The filing of
an asylum claim starts a separate process that can easily take
years to resolve.
One of the most common forms of relief from deportation
sought by criminal aliens are so-called section 212(c)
applications.\62\ Under section 212(c), criminal aliens
lawfully admitted for permanent residence who have been in the
U.S. for seven years, and who have not served a sentence of
five years or more for a felony, can be granted relief from
deportation. Time spent incarcerated is often included as part
of the seven year U.S. residence requirement under this
section. In 1992, out of 8,273 IHP cases alone, 1,015 criminal
aliens made section 212(c) claims. Judge Armstrong acknowledged
that 212(c) petitions could be simplified and the process
expedited, and Judge Fong testified that having time spent
incarcerated count toward the residency requirement should be
``reexamined.'' \63\ Both Judge Fong and Judge Armstrong
testified at the Hearing that 212(c) is one area where
immigration law, in their opinion, can and should be
simplified.\64\
\62\ INA Section 212(c); [8 U.S.C. 1182(c)].
\63\ PSI Hearings on Criminal Aliens in the United States, November
16, 1993, p. 53 and 56.
\64\ Ibid, p. 57.
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Criminal aliens also seek to avoid deportation under
section 243(h)(1), which provides that a criminal alien cannot
be deported if the alien's life or freedom would be threatened
in the country where the alien is to be deported on account of
race, religion, nationality, membership in a particular social
group, or political opinion. Those aliens determined to
constitute a ``danger to the community of the United States,''
are not eligible for relief under this provision.
State and Local Non-cooperation with the INS
Essential to any effective governmental response to the
criminal alien problem is cooperation among law enforcement
authorities at all levels--local, state and federal. However,
over the last decade, some local jurisdictions have enacted
laws, often referred to as refuge, sanctuary or non-cooperation
laws, that prohibit or limit local government employees'
cooperation with the INS. For example, in 1986, the Oakland
California City Council unanimously adopted a resolution
declaring Oakland to be a ``City of Refuge,'' which would serve
as a safe haven for refugees from El Salvador, Guatemala, Haiti
and South Africa. The resolution instructed all Oakland city
employees to ``refrain from assisting or cooperating'' with the
INS relative to alleged violations of the civil provisions of
the immigration laws. The resolution further urged that the
California State Legislature make California a ``State of
Refuge.'' \65\
\65\ Oakland City Council Resolution No. 63950, July 8, 1986.
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In 1989, the San Francisco California Board of Supervisors
approved an ordinance making San Francisco ``a City and County
of Refuge.'' Broader than the Oakland resolution, the San
Francisco ordinance was not limited to any particular foreign
nations. Rather, it generally prohibited the use of ``City
funds or resources to assist in the enforcement of federal
immigration law * * * unless such assistance is required by
federal or state statute, regulation or court decision.'' The
ordinance was inapplicable to persons charged with or convicted
of felonies.\66\
\66\ San Francisco Administrative Code Chapter 12H, sections 12H.1,
12H.2 and 12H.2-1 (as amended August 4, 1993).
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While Los Angeles, California does not have a refuge
ordinance, the Los Angeles Police Department (LAPD) does have a
policy of not permitting LAPD officers to inform the INS when
they come in contact with illegal aliens except in limited
circumstances. The LAPD Manual states: ``Undocumented alien
status in itself is not a matter for police action.'' \67\
Further, according to the LAPD Manual, ``Officers shall not
initiate police action where the objective is to discover the
alien status of a person'' and LAPD officers are prohibited
from arresting or booking anyone for the crime of illegal entry
into the United States (8 USC section 1325).\68\
\67\ Manual of the Los Angeles Police Department, Volume 1, Section
390 (1992).
\68\ Ibid, Volume 4, Section 264.50.
Currently, LAPD policy is to notify the INS only when, ``an
undocumented alien is booked for multiple misdemeanor offenses,
a high grade misdemeanor or a felony offense, or has been
previously arrested for a similar offense.'' \69\ The LAPD
policy is, therefore, to avoid contacting the INS if a
suspected alien is involved in any other offense. The LAPD is
currently being sued by several organizations that claim it has
violated previous court rulings and its own policy by
cooperating too closely with the INS. According to the Los
Angeles City Attorney's office, the goal of the organizations
bringing this lawsuit is to make Los Angeles a sanctuary city.
\69\ Gates v. Superior Court of Los Angeles County, et al., 193
Cal. App. 3d 205, 211; 238 Cal. Rptr. 592, 595 (Ct. App. CA, 2d App.
Dist., Div. 3, June 30, 1987).
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In California, local jurisdictions that adopted such non-
cooperation laws or policies were supported by a 1984 opinion
by then-California Attorney General John Van De Kamp that
stated:
There is no general affirmative legal duty in the
sense of a legally enforceable obligation incumbent on
peace officers and judges in California to report to
INS knowledge that they might have persons who entered
the United States by violating United States Code
Section 1325. * * * \70\
\70\ Opinion of John Van De Kamp, Attorney General, State of
California, No. 93-902, July 24, 1984, Volume 67, p. 340.
More recently, however, the specific question of whether
local jurisdictions could adopt sanctuary or non-cooperation
laws was addressed by the California Attorney General. On
November 2, 1992, California Attorney General Daniel E. Lungren
concluded that the supremacy clause of the United States
Constitution prohibited local jurisdictions from adopting such
laws.\71\ Moreover, on October 4, 1993, California enacted a
statute prohibiting local jurisdictions from preventing law
enforcement officers from identifying and reporting to the INS
any person suspected of violating the civil provisions of the
federal immigration laws. However, this statute only applies in
cases of a person arrested and booked for alleged commission of
a felony.\72\ Thus, the statute apparently would permit local
jurisdictions to continue non-cooperation with the INS with
regard to all other illegal aliens (such as those charged with
or convicted of misdemeanors or those without criminal records,
so-called ``administrative violators'') where sanctioning or
non-cooperation laws continue to exist.
\71\ Opinion of Daniel E. Lungren, Attorney General, State of
California, No. 92-607, November 2, 1992, p. 1.
\72\ California Government Code Chapter 818, Section 53069.75.
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Non-cooperation provisions are not limited to California. A
Chicago Executive Order dated April 25, 1989, prohibits city
officials from investigating or assisting ``in the
investigation of the citizenship or residency status of any
person unless such inquiry or investigation is required by
statute, ordinance, federal regulation or court decision.\73\
This order appears to effectively prohibit local law
enforcement authorities from voluntarily cooperating with the
INS in a broad range of activities.
\73\ Executive Order 89-6, Mayor Richard M. Daley, City of Chicago,
April 25, 1989, section 3, p. 3.
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A New York City Executive Order adopted on August 7, 1989
prohibits city officials from transmitting information
regarding any alien to federal authorities unless required by
law to do so or unless the alien is suspected of engaging in
criminal activity. However, the order also specifically
instructs law enforcement agencies to continue to cooperate
with federal authorities, stating that: ``Enforcement agencies,
including the Police Department and the Department of
Corrections, shall continue to cooperate with federal
authorities in investigating and apprehending aliens suspected
of criminal activity.'' \74\ According to the INS, however,
this order still inhibits cooperation from New York City
officials regarding administrative violators.
\74\ ``City Policy Concerning Aliens,'' Executive Order No. 124,
Mayor Edward I. Koch, City of New York, August 7, 1989, section 2.
While enforcement of immigration laws is generally a
federal responsibility and enforcement of most criminal laws is
a state and local responsibility, clearly the two are not
mutually exclusive domains. In the current debate regarding
U.S. immigration laws, many states and local jurisdictions have
been highly critical of what they see as the federal
government's inability to effectively police our nation's
borders, resulting in a massive influx of criminal aliens. Yet,
by adopting non-cooperation laws, local jurisdictions are
making effective governmental response to the problem of
criminal aliens substantially more difficult.\75\
\75\ In November 1993, the U.S. Senate voted 93 to 6 to adopt
Senator Roth's amendment to the Violent Crime Control and Law
Enforcement Act of 1993. The amendment called for the Attorney General,
together with the Commissioner of the INS, to report to the Congress
and the President within 6 months regarding the level of state and
local cooperation. Under the amendment, any jurisdiction the Attorney
General determined was not cooperating with the INS would not be
entitled to share in funds appropriated under the crime bill. This
amendment was not included in the Conference Report on the Crime Bill
and thus did not become law.
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non-cooperation by Foreign Governments
After a criminal alien has been ordered deported one of the
final steps in the process before deportation can be effected
is to secure documentation from the country receiving the
deportee. Such documentation is typically secured by INS
Detention and Deportation Officers through a given country's
U.S. embassy or consulate.
INS personnel from several district offices have told
Subcommittee staff that some countries are less than
cooperative with regard to securing documentation. The country
most often cited as a problem in this regard is Nigeria and
Jamaica appears to be the second biggest problem country. INS
personnel on numerous occasions in widely dispersed geographic
areas informed Subcommittee staff that Nigerian and Jamaican
consular officers were uncooperative in supplying the necessary
travel documentation to allow deportations to take place.
At the Oakdale Federal Detention Center in October 1993
there were 33 Nigerians and 99 Jamaicans out of a total
population of 811. The Oakdale Federal Correctional Institute
had 101 Nigerians and 61 Jamaicans out of the INS population of
approximately 614. These numbers do not include Nigerians and
Jamaicans incarcerated in county jails in the area near
Oakdale. Yet, from all of those facilities, the INS deported
only 54 Jamaicans and 56 Nigerians between January-October,
1993.
Under the Immigration and Nationality Act, the Attorney
General has the authority to notify the Secretary of State of
any country which, ``upon request denies or unduly delays
acceptance of the return of any alien who is a national,
citizen, subject, or resident thereof * * *.'' \76\ Upon such
notification, the Secretary of State in turn is to instruct
consular officers in the offending country to discontinue the
issuance of immigrant visas to nationals, citizens, subjects or
residents of the offending country. Apparently, neither the
Attorney General nor the Secretary of State has ever invoked
these procedures except with respect to certain Communist
countries during the cold war period.
\76\ INA Section 243(g); [8 U.S.C. 1253(g)].
At the Subcommittee's hearings, Senator Cohen asked INS
Commissioner Meissner why the Attorney General had not
requested that the State Department withhold immigrant visas
from residents of those countries that failed to provide
documents needed to deport criminal aliens. Commissioner
Meissner testified that, indeed, such a request had not been
made and that to make such a request was an ``extreme
measure.''
recommendations
1. Congress should radically simplify the deportation
process. Consideration should be given to eliminating
distinctions among aggravated and non-aggravated felons, at
least for non-resident aliens. INS employees often have
difficulty in making these distinctions.
2. Existing immigration law establishes a crime severity
threshold that must be exceeded for a person to be deportable--
whether the alien is in the U.S. legally or not. The threshold
should be reduced so that an alien can be deported following
conviction for any felony. Criminal aliens who are in the U.S.
illegally should have no relief from deportation available to
them if they are convicted of 3 crimes (other than traffic
violations).
3. Limited detention space is a fundamental problem
confronting the INS and therefore it needs to increase capacity
to keep pace with the increasing numbers of criminal
aliens.\77\
\77\ As noted, the 1994 crime bill authorized $160 million for two
INS criminal alien detention and processing centers.
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4. Congress should consider eliminating or restricting
Section 212(c) and other avenues of relief from deportation for
criminal aliens.
5. Consideration should be given to establishing the
principle that deportation appeals of criminal aliens will be
pursued after deportation has taken place, at least for those
aliens who are not permanent residents.
6. Congress should consider requiring that all aggravated
felons be detained pending deportation. Such a step may be
necessary because of the high rate of no-shows for those
criminal aliens released on bond.
7. Congress should require sanctions against local
governments that adopt official policies of non-cooperation
with INS.
8. The Attorney General should notify the Secretary of
State of those countries that deny or delay the acceptance of
the return of a criminal alien and consideration should be
given to limiting issuance of U.S. visas in such countries.
9. INS should develop and institute a fingerprint based
identification system, and a nationwide recordkeeping system
for criminal aliens. In light of new initiatives in this area
recently announced by the Attorney General, the INS should
inform Congress of specific plans (including milestones and
completion dates) for the immediate development and speedy
deployment of a fingerprint based identification system.\78\
\78\ On June 2, 1994, Attorney General Reno announced two new
systems, ENFORCE and AFIS, to be used by the INS in its border control
efforts. ENFORCE is the Enforcement Tracking System, which will
automate the processing of illegal aliens and will create a case
tracking system to link all INS enforcement and deportation functions.
The initial phase of ENFORCE will operate for six months as a pilot
program in San Diego.
AFIS, the Automated Fingerprinting Identification System, is a
fingerprint-based identification system which is designed to enable
border patrol agents to identify an alien from a fingerprint in 3-5
minutes and access that person's criminal records, photographs and
other important information that may be on file. The AFIS system is in
the late stages of development. (Source: Department of Justice press
release, June 2, 1994.)
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10. INS should end the policy of issuing work authorization
permits to criminal aliens contesting their deportation.
11. INS should end the 72-hour notice policy for deporting
criminal aliens.