[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.
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

                       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.
---------------------------------------------------------------------------
    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. * * *''
---------------------------------------------------------------------------

              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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.)
---------------------------------------------------------------------------

                     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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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].
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

  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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

                       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.
---------------------------------------------------------------------------

 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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

                       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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

  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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

                 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.
---------------------------------------------------------------------------
    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.)
---------------------------------------------------------------------------
    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.