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IMPLEMENTATION OF TITLE III OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
TUESDAY, FEBRUARY 11, 1997
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:06 p.m., in room 2237, Rayburn House Office Building, Hon. Lamar Smith (chairman of the subcommittee) presiding.
Present: Representatives Lamar Smith, Elton Gallegly, Sonny Bono, William L. Jenkins, Edward A. Pease, Christopher B. Cannon, Melvin L. Watt, Zoe Lofgren, and Robert Wexler.
Also present: Cordia A. Strom, chief counsel; Edward R. Grant, counsel; Judy Knott, staff assistant; and Perry Apelbaum, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
I know that Mr. Watt and I have opening statements and after our opening statements we'll go to our panelists who are here. I'll recognize myself first for an opening statement.
Now, first of all, I'd like to welcome everyone who is here to the first meeting of the subcommittee in this Congress, and a special salutation to the new ranking member to my left, the distinguished gentleman from North Carolina, Mel Watt.
Also, I'd like to mention, although not everyone is here, I'd still like to mention the names of the new members of the subcommittee, several of whom in fact are here. On my side of the aisle are Ed Pease from Indiana, who is here at the end of this table; Chris Cannon of Utah in front, and Bill Jenkins from Tennessee; on the Democratic side, Zoe Lofgren from California; Robert Wexler from Florida. Needless to say, we expect them to bring a great deal of energy and commitment to the task before us.
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Also, we welcome back a number of experienced hands, including Elton Gallegly, Sonny Bono, and Ed Bryant on the Republican side, and Chuck Schumer and Howard Berman on the Democratic side.
Oh, pardon me, pardon me, Zoe. I was going to recognize you in a minute, and I'll do so now. Zoe Lofgren and Ed Pease, on our side, along with Bob Goodlatte, are three honest-to-goodness either part-time, former part-time, or former full-time immigration lawyers. And so we already have a number of experts and we look forward to their good help during the coming year as well.
Most of you already know the subcommittee staff, but I'd like to introduce them, too. We're unchanged from last year: Chief Counsel Cordia Strom, who's behind me to the right; Counsel Ed Grant; Assistant Counsel George Fishman, and Subcommittee Clerk Cynthia Blackston, and Secretary Judy Knott, who is over to my left over there.
With everyone's good assistance, the subcommittee will hold frequent oversight hearings regarding immigration challenges that continue to face this Nation. We also will be interested in the response of the Immigration and Naturalization Service, the Executive Office for Immigration Review, and other Federal agencies, in meeting those challenges.
The 104th Congress began the process of serious reform of our immigration system, reform that was long overdue. Too often in the past Congress enacted well-intentioned laws that turned out to be half measures. The result of the congressional debate last year was a very different type of legislation. The Illegal Immigration Reform and Immigrant Responsibility Act fundamentally changed the direction of immigration enforcement. In particular, Congress enacted title III of the new act to respond to the ongoing crisis of illegal migration to the United States. The INS reported just last week that a record 5 million illegal aliens are resident in the United States, a figure that grows by about 275,000 every year.
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Against the monumental size of this crisis, the Government's effort to remove illegal aliens from the United States pales in comparison. Less than 50,000 illegal aliens were removed from the interior of the United States during fiscal year 1996. An additional 15,000 were ordered excluded at the border.
Also troubling is the system's failure to promptly adjudicate the cases of illegal aliens who are apprehended and to ensure that they actually leave the country. The Inspector General reported that a mere 11 percent of nondetained aliens who have received final orders of deportation actually depart the United States. In the remaining 89 percent of the cases, the effort expended to obtain a final order of deportation is wasted, and one of the things we'll be doing on the subcommittee is looking for ways to help the administration deport individuals who receive those final orders of deportation.
Title III, in addition to completely reorganizing a large portion of our immigration laws, makes several fundamental reforms. Under expedited removal, arriving aliens who have no valid entry document will be ordered removed shortly after they are apprehended. Arriving aliens who claim asylum, if they establish that there is reasonable basis to their claim, may remain here to pursue their case further. The basic criterion for determining what rights an alien has in immigration court should be whether the alien was lawfully admitted to the United States. Under current law, the criteria is whether the alien has entered the United States, which can include an illegal entry. The new law changes this, so that lawful admission, not illegal entry, is the benchmark.
Consolidation of proceedings: immigration proceedings should be streamlined and easy to understand without complex rules of jurisdiction. By merging current exclusion and deportation proceedings into a single form of removal hearing, the new law takes a firm step in this direction.
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Limitations on relief: relief from deportation has been abused. Criminal aliens have been allowed to remain in the United States, and other illegal aliens have been enabled to abscond. Title III imposes strict eligibility criteria and limitations for granting such relief.
Detention and removal: currently, there is no clear mandate to restrain and promptly remove aliens who have been ordered deported. The new law mandates the detention or close supervision of aliens who have been ordered removed and mandates the removal take place within 90 days.
Limitations on appeals: a sophisticated system of administrative tribunals exists within the Executive Office of Immigration Review, or EOIR, to adjudicate issues relating to removal of illegal aliens. Appeals to the Federal courts, therefore, should be extraordinary and limited to situations where there is a likelihood of a contested issue of law or fact relating to an alien's right to remain in the United States. The new law establishes such limits.
The import of these changes is clear: both INS and EOIR should be focused on the prompt apprehension, adjudication, and removal of aliens who are not lawfully present in the United States. There shall be a clear progression from apprehension of an illegal alien to the alien's removal. The system should not be a revolving door, nor should it waste resources generating orders of removal that are not enforced.
While the INS and EOIR are independent, they are not competitors. Officers in both agencies, including immigration judges, must cooperate in the missions of deterring illegal migration and of removing illegal aliens from the United States.
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We now turn to the implementation of these statutory mandates, which is largely what this hearing today is about. As the subcommittee Chair, I have submitted a lengthy set of comments in response to the proposed rule published by the Department of Justice in the January 3 Federal Register. If there is no objection, these will be made a part of the record.
In general, I am pleased--and I think the American people will be pleased--with the efforts made so far. There appears to be a genuine recognition that the rules have changed and that the process for adjudicating these cases must be swifter and surer. The proposed rules, if fully implemented, will go a long way toward carrying out the intent of Congress.
Consistent with the Administrative Procedure Act, these rules have been subject to public comment. However, it should be clear that the process of notice and comment does not create a parallel legislative history, and does not alter the agency's fundamental obligation to fully execute the will of Congress. In this case, the range of discretion in drafting the final version of these regulations is quite narrow. The provisions being implemented, sections 301 through 309 and section 605 of the new law, are very specific and detailed, and leave little room for interpretation. In addition, the legislation is quite recent and is accompanied by extensive legislative history. Thus, it is not difficult to discern what the clear intent of Congress was.
To put it in quantitative terms, it is not sufficient that these regulations carry out the full intent of Congress 85 percent of the time. Given the clarity of the congressional mandate, the figure should be 100 percent.
In the following key areas, among others, the proposed regulations should be amended to conform the soon-to-be-published interim rule more closely to the dictates of the new law.
Expedited removal must be applied to all arriving aliens with no valid entry documents. This should be interpreted to include all aliens in the process of arrival, including illegal aliens who are crossing or have just crossed our land borders. It also should include aliens who have landed illegally on our shores. Arriving aliens should not be limited to aliens presenting themselves at a legal port of entry.
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Expedited removal also should remain expedited. A person who claims asylum should complete the interview process within 48 hours, and the interview should be confidential. The low standard of credible fear was deliberately chosen so that it would not be necessary for there to be a lengthy period of preparation for the interview. The regulatory proposal for review by a supervisory asylum officer, coupled with the opportunity mandated by statute for review of an immigration judge, gives every arriving alien the opportunity for review of his or her claim by two experts in asylum law. While some outside input into this process is contemplated by the new law, it should be strictly limited, so as not to delay the process.
The transition to the new, streamlined removal procedures should be as rapid and complete as possible. We, thus, encourage the Commissioner to use her authority as of April 1 to terminate pending cases and to reinitiate them under the new rules. This option should be considered whenever it appears that proceeding under the new rules would result in a speedier removal.
As should be clear, enacting a good law and drafting sound regulations is, at best, half the battle. We will continue to monitor the regulatory proposals to implement title III. We also will be very attentive to the effort on the ground to increase the percentage of illegal and criminal aliens who are removed from the United States.
Without objection, I'd also like to ask that the following documents be entered into the record: my February 3 letter to the INS on comments to the title III regulations; a January 16 letter to the INS requesting documents and information; February 6 response from INS to my January 16 request letter; January 31 letter to EOIR requesting information for this hearing; a February 7 letter from EOIR to me in response to the document request, and a statement from Representative Bill McCollum, a fellow member of the Judiciary Committee. And if there is no objection, that will be made a part of the record.
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[The information follows:]
Opening Statement of Hon. Lamar Smith, a Representative in Congress From the State of Texas, and Chairman, Subcommittee on Immigration and Claims
INSERT OFFSET RING FOLIOS 1 TO 8 HERE
[Correspondence to Federal agency from Chairman Smith and responses:]
INSERT OFFSET RING FOLIOS 9 TO 38 HERE
[The prepared statement of Mr. McCollum follows:]
Prepared Statement of Hon. Bill McCollum, a Representative in Congress From the State of Florida
INSERT OFFSET RING FOLIOS 39 TO 41 HERE
Mr. SMITH. One final comment before recognizing Mr. Watt, and that is that I know that a lot of individuals, including particularly the witnesses, the four witnesses, here today, have worked hard both within INS and EOIR to prepare the proposed regulations, and that effort, of course, is ongoing. I probably don't, and a lot of us probably don't, appreciate all the work that has already gone into preparing those interim regulations.
But I also have to say, in addition to saying that we need to appreciate what's been done, I also want to make a point of saying that we've sent letters to both INS and to EOIR asking for production of documents and for written answers to specific questions. This necessarily made more work for you all and made more work for our staff as well, but the reason for that was simply that in times past we have oftentimes asked witnesses questions; they have not had answers to the questions at that particular point, and we've waited weeks to get the answers, if we've gotten them at all. So the whole idea here about asking for your documents in advance, as we will do in future oversight hearings as well, is to, quite frankly, result in a better hearing and a more informed public.
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I have to say in regard to our first test of this approach, which was just in the last couple of weeks, there were a number of instances where documents were delayed or provided only after repeated requests. We were first told that the reason that the documents were not being proffered is because they contained sensitive law enforcement information. It turned out that misrepresentation--or, rather, representation--was not accurate, and those documents should have been produced without delay. Then we were told that there was a mistake in communication and in fact the documents did not contain any sensitive law enforcement information, and they should have been produced. This has happened before; I hope it doesn't happen again. I only bring it up here to hopefully emphasize that I hope we won't have to go through this kind of confusion again when we prepare for future oversight hearings.
I have talked long enough, and I will now recognize the ranking member, Mr. Watt, for his opening statement.
Mr. WATT. Thank you, Mr. Chairman, and I'm going to do something that's probably unprecedented for me. I'm going to work from a script. Most of you know that I try not to do that, but I think there are occasions that it's probably better to try to stick with some prepared thoughts, and I have tried to do that.
First, I want to say how excited I am about and how much I look forward to working with you in this term of Congress and working with the members of this subcommittee and under your leadership as chairman of this committee. Today, we open our first hearing of the Subcommittee on Immigration and Claims in this Congress. It's also my first hearing as ranking minority member of this, or any other, subcommittee in this Congress.
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I want to start by making a few comments about the timing of this hearing because I'm a little concerned about the timing, because on January 3 the INS issued a notice of proposed rulemaking. This invitation to comment was accepted by many immigration lawyers, humanitarian groups, and Members of Congress, including yourself, to comment on these interim rules. The period of comment closed on February 3; the interim rules will be published at the end of this month. An additional period for comment will follow, as I understand it, and in a few months the INS will issue a final rule, and again allow the opportunity for further comment.
The timing of this hearing on the interim rules, to the extent that we are dealing with that, seems to have little or no relation to the administrative process, unless, of course, we are seeking to exercise even greater influence over the content of the final rules than we have had already by crafting the legislative language which passed during the last term of Congress.
Having said that, the subject of this hearing, while arguably not timely--and that's an issue that I'm not going to pursue any further--is extremely important to oversee and evaluate the implementation of some of the sweeping immigration reform provisions which became law in the 104th Congress. Although I did not support many of the provisions of the law which passed, including many of the provisions of title III, these provisions are now part of the law, and it is our responsibility to understand how and whether they are working, whether they are serving the purposes for which they were intended, and whether they are striking an appropriate balance between interests, which are often competing interests, the kind of balance we seek to have our immigration laws and policies reflect.
I began my service as ranking member, and I began this hearing, as a blank slate. I have not been involved in immigration issues to the degree that some of my colleagues have been, and certainly not to the degree that I have formed a number of fixed opinions, as I have on many other issues which come before the Judiciary Committee. I think that is an advantage. It allows me to start with a balanced perspective.
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Last year, under substantial political pressure, we undertook sweeping reform of our immigration laws. Some said it was too easy to get immigrants in. So we swung the pendulum to make it more difficult. Some said it was too hard and cumbersome to get undocumented illegals, those who had overstayed their authorization, out. So we swung the pendulum to make it easier. Some said that providing due process was too slow, too expensive, too cumbersome, not constitutionally required. After all, these immigrants ''were not citizens.'' So we swung the pendulum to provide less time to be heard, less assurance that applicants understood the language or the process, less representation and assistance by attorneys and other trained assistants, except, of course, for those who have plenty of money; less meaningful rights to appeal, and virtually no opportunity for courts and judges to assure protection of the limited due process rights that remain for the unusual or meritorious claims which sometimes run the risk of being buried in a bureaucracy.
It seems to me that what we must search for in this process is that delicate balance, the delicate balance between too easy and too hard, between too fast and too slow, between needless process and due process. We must find a way to make the process efficient, but fair.
As we review last year's sweeping immigration reform, we all have a responsibility to look for the delicate balance. We will be challenged to ask ourselves: Where has the pendulum shifted to? Have we gone too far or not far enough? Should the INS be interpreting and enforcing the law more aggressively or less aggressively? It is our responsibility as members of this subcommittee to consider both sides of each of these possibilities.
At stake are essential values of our society. On one side of the debate, we must observe our need for secure borders and expedient processing of those who come to our borders in the hopes of becoming U.S. citizens. On the other side of this debate, we must always ensure the integrity of our Constitution, even when it's sometimes not convenient. We must adhere to our international treaty obligations, and we must respect the historical truth and significance of the fact that we are a nation of immigrants. But for somebody's fairness or somebody's force, none of us would be here today.
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Of great concern is the fate of many, an estimated 78,000 people in 1997 who come to our country seeking protection in the United States because they fear persecution at home. Any immigration policy must ensure that these men and women are not returned to lands where they face imprisonment, torture, or death. Our policy must ensure that an immigrant understands and has notice of any regulations that will affect his ability to be in the United States. Many who wish to join our Nation do not speak English and have faced torture and persecution which could create barriers to communication with immigration officers. This must be taken into account as we develop the means to implement the summary exclusion or expedited procedures we have passed into law.
Suffice it to say that I'm concerned about the timing of the hearing; I'm more concerned about getting into a situation where we can explore this balance in a balanced kind of way. This hearing should not be only about whether the INS has underreacted. Some of us are concerned about the other side of the equation.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
The Chair will recognize members, alternating from both sides, for any opening statements that they might have, and Mr. Bono has none. Let me go to Ms. Lofgren.
Ms. LOFGREN. I'll just submit mine for the record.
Mr. SMITH. OK. Without objection, your statement will be made a part of the record.
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[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of Hon. Zoe Lofgren, a Representative in Congress From the State of California
Mr. Chairman, I am delighted to be here at my first Immigration Subcommittee hearing. I appreciate the warm welcome you and the other members of the Subcommittee have extended to me.
Like you, I strongly believe that our oversight activities are as important as our legislative functions, and I commend your intention to take these duties seriously.
Illegal immigration is a real concern in this country. As you may know, the INS just revised its estimates of the illegal immigration population up to a current level of 5 million, with an estimated 275,000 more arriving each year. My own state, California, receives over 40 percent of the new arrivals. I agree that the policies regarding unlawful immigration must be carried out adequately and that these policies need to have both a domestic and an international component.
At the same time, I continue have serious concerns about some aspects of the underlying law that these regulations will implement. But given the nature of this hearing, I will limit my comments to the proposed regulations. And considering the legislation, I would like to commend the Attorney General and the INS for promulgating proposed rules that match Congressional intent while taking a responsible attitude towards the capabilities of the INS and our need to ensure a fair treatment for all. In particular, I am pleased that the Attorney General is limiting the expedited removal proceedings to Ports-of-Entry pending further training of INS officers.
I do, however, have several concerns about the regulations that I hope will be addressed at this hearing. I worry that the proposed expedited removal procedures will not adequately protect asylum seekers who, through difficulties of communication, or disability, are unable to convince an officer of ''credible fear.''
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I also question whether the exceptions to the one year time limit on requests leave sufficient protection. According to the Lawyer's Committee for Human Rights, which has its own extensive screening process, the average time before a genuine asylum seeker comes forward is 20 months, either for emotional or other reasons. I fear that with the current regulations, the system will hurt those it seeks most to help.
I am further concerned that the INS plan to use local jails to house detainees is severely flawed. From my own experience, I know that these facilities are severely overcrowded and not, therefore, readily available. Additionally, protection from the criminal populations concurrently housed at the jail needs attention. I also question the extent to which the INS will monitor and evaluate these facilities.
I look forward to working with the INS in the coming months to resolve these and other issues. I welcome today's witnesses, and thank them for taking the time to prepare materials and come testify today.
Mr. SMITH. Any opening statements over here? The gentleman from Tennessee. The gentleman from Utah. All set?
Also, we've been joined by Mr. Wexler of Florida, and let me see if he has any comments that he'd like to make.
Mr. WEXLER. No, Mr. Chairman.
Mr. SMITH. All set? All right, let me welcome the first panel and introduce them. We have Paul Virtue, Acting Executive Associate Commissioner, Programs, of the Immigration and Naturalization Service. He's accompanied by David Martin, General Counsel for the INS; Paul Schmidt, who's Chairman of the Board of Immigration Appeals, and Michael Creppy, Chief Immigration Judge.
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And we welcome you all here and look forward to your testimony, and I will, frankly, just recognize you, I think, in the order with which you're on the program. We'll start with Mr. Virtue for his testimony.
I gather, Mr. Martin, you don't have testimony, and only Mr. Schmidt has testimony on that side?
Mr. MARTIN. Yes.
Mr. SMITH. OK, please proceed. Thank you, Mr. Virtue.
STATEMENT OF PAUL W. VIRTUE, ACTING EXECUTIVE ASSOCIATE COMMISSIONER, OFFICE OF PROGRAMS, IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY DAVID MARTIN, GENERAL COUNSEL
Mr. VIRTUE. Thank you, Mr. Chairman. Mr. Chairman, Congressman Watt, members of the subcommittee, we appreciate the opportunity to discuss the implementation of title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the act that carries the acronym IIRIRA--though we try to convince people that it should be called the 1996 act, but Congress was so busy in 1996 it became confusing. So we're referring to this act as IIRIRA--and the issues regarding the detention and removal of criminal and illegal aliens. The Justice Department and the INS look forward to building upon the relationship that we established during the 104th Congress and to working with you and members of the subcommittee during the 105th Congress as well.
Accompanying me, as you pointed out, is David Martin, INS General Counsel. Mr. Martin is the lead official within INS dealing with the agency's removal priority. Mr. Martin has also been personally and directly involved in implementation of title III of IIRIRA. So both of us will be available to answer questions that you might have.
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The administration has pursued a multiyear strategy to regain control of our Nation's borders, to protect U.S. workers, and deter illegal employment, and to remove greater numbers of criminal and other deportable aliens--priorities that are enhanced by many of the provisions of the new act. The modifications to the Immigration and Nationality Act made by IIRIRA are some of the most significant changes to U.S. immigration law since 1952. The enactment of the new act, in addition to the welfare reform law and the Antiterrorism Act, makes this one of the most fascinating and challenging times at the INS.
Immediately after enactment of IIRIRA on September 30, 1996, Commissioner Meissner met with her senior INS staff and set into motion the INS's organizational structure and process for implementation of the new law. At this meeting we divided the provisions of the new act into functional areas and created five separate working groups. The teams are responsible for promulgating regulations, for drafting and issuances of field instructions and related forms, preparing the required reports, making changes and drafting operations instructions, and helping to train agency employees to work with new systems and procedures.
Just to give you an idea of the challenge, we have approximately 75 INS employees tasked to the work groups, 20 of whom have been detailed from our field offices to lend us their particular expertise. This has also required close coordination and cooperation between INS and the Executive Office for Immigration Review in the promulgation of the title III regulation, and in putting together the processes.
In addition, I would just like to recognize the INS legislative counsel, Bill Birkett, for having assembled the definitive redline-and-strikeout version of the act, which incorporated the new act into the 1952 act. A lot of people take that for granted, but it's what we all used, and I'm sure it's been--and, hopefully, it's been--helpful to the subcommittee as well.
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Over the next year, the work groups will seek to accomplish Herculean tasks. Overall, we expect to issue 25 different regulations. Approximately 75 forms will require either revision or consolidation. The act requires 25 new reports to be submitted to Congress. Many of the sections require field instruction and guidance. To date, we've issued 10 policy wires and/or memoranda, and we've provided those to the subcommittee shortly after their issuance, and we've set that up as a routine matter, that we will provide subcommittee staff with copies of the policy documents that are issued.
A significant part of the effort is the training of our employees and education of the members of the community about IIRIRA, its effects, and its implications. Over the next 6 months, we will educate 23,000 INS employees about the new law. That includes the training by April 1 of some 16,000 officer corps employees in the new provisions. We'll continue to train our employees as additional regulations, forms, or procedures are prepared, and, in addition, we've provided a number of briefings for congressional staff and nongovernmental organizations. We're developing plans to provide information about these changes to other Federal agencies, State and local governments, and organizations, as well as members of the community.
The subject of today's hearing, title III, made pervasive changes to the law governing admission, inspection, removal, and detention of aliens. Just I want to clarify that, given the timing of the hearing, we'd like to clarify that in terms of the rulemaking process for implementation of title III, we will be discussing in our responses to questions today the rationale for the notice of proposed rulemaking, but it would be premature for us to react to the comments because neither David nor I have read all of those, and of course they will have to be reviewed within the administration in preparing the interim rule that is developed on the basis of those comments. So any comments that we--so this hearing should not be considered to be a part of the rulemaking record itself. We'll do our best to respond to questions in that context.
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As was mentioned earlier, notice of proposed rulemaking dealing with these issues and those changes in title VI relating to asylum was published on January 3. Many of the provisions of title III become effective April 1. The statute requires that the regulations be promulgated 30 days in advance of April 1, and so by the end of this month we are planning to have published in the Federal Register an interim rule that will take into consideration the comments that we have received thus far and provide a further opportunity for comment. The regulations will become effective April 1, and will provide for a 120-day comment period in addition. So that sometime by the end of the summer, and hopefully by the end of the fiscal year, we will have finalized the regulation on the basis of that rulemaking process.
Mr. Chairman, let me just take a moment to inform the committee of the results of our recent removal efforts. Over the last 4 years, Commissioner Meissner has brought renewed emphasis to the removal of criminal and other aliens unlawfully in the United States. With the strong support of the Congress and the administration, INS has raised the number of removals to record levels 3 years in a row, and has worked to restore the integrity of the deportation process. This fiscal year we'll see an increase in detention space to over 12,000 beds, and an unprecedented effort to remove at least 93,000 aliens ordered deported and excluded. That's a 37-percent increase over last year's total of 68,000.
While we agree that much work remains to be done, we've begun to restore public confidence in the Government's ability to enforce the Nation's immigration laws. For the first time in many years, removal is an increasingly realistic consequence and a deterrence for those aliens who would violate the law. The results of our efforts this fiscal year and last have been impressive. In fiscal year 1996, the INS removed a record 68,000 criminal and other deportable aliens. That was a 36-percent increase over the same figures for 1995. Criminal alien removal has increased by 13 percent; noncriminal alien removals by 77 percent. Our detention capacity rose to 9,500 beds by the fiscal year's end.
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This momentum has carried over into fiscal year 1997. In the first quarter, overall removals increased by 24 percent over the same period in fiscal year 1996. Ten thousand eight hundred and fifty-four criminals were deported. That's a 31-percent increase over the same period last year. Over 60 percent of those criminal aliens were aggravated felons. Currently, INS detention capacity stands at over 11,000 beds and will surpass the 12,000 mark by October.
While our accomplishments have been significant, further effort is needed to create a truly efficient, credible, and durable removal process. The passage of IIRIRA has brought increased enforcement powers which should strengthen our removal efforts in the long term, but it also has created many immediate challenges, including the transition to new processes and procedures in a number of areas. I'm confident that we will meet these challenges and advance the Government's efforts to deter illegal migration to this country.
Chairman Smith, members of the subcommittee, we appreciate the continued support of the subcommittee for the initiatives taken by the administration and for our implementation of the new act. Mr. Martin and I are pleased to answer any questions that you or other members of the subcommittee may have.
[The prepared statement of Mr. Virtue follows:]
Prepared Statement of Paul W. Virtue, Acting Executive Associate Commissione4r, Office of Programs, Immigration and Naturalization Service, U.S. Department of Justice
Mr. Chairman, Congressman Watt, and Members of the Subcommittee, we appreciate the opportunity to discuss with the Subcommittee the implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and issues regarding detention and removal of criminal and illegal aliens. The Justice Department and the Immigration and Naturalization Service (INS), look forward during this session of the 105th Congress to building upon the relationship that we established during the 104th Congress and to working with you and the Members of the Subcommittee as we prepare to implement this landmark legislation in a fair and responsible manner. Accompanying me is David Martin, General Counsel of the Immigration and Naturalization Service. Mr. Martin is the lead official within INS for the agency priority regarding the removal of criminal aliens and he is prepared to address any questions you may have on that issue.
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BACKGROUND
As you know, the Administration has pursued a multi-year strategy to regain control of the nation's borders, to protect U.S. workers and to deter and correct illegal employment, to combat smuggling and alien-related crime, and to aggressively remove greater numbers of criminal and other deportable aliens. Many provisions of IIRIRA advance the Administration's strategy, and I am pleased to head the effort on behalf of the INS to implement IIRIRA.
As we continue our efforts to control our nation's borders, facilitate legal entry, remove the job magnet through worksite enforcement, increase the removal of deportable aliens, and improve the processing of benefit applications, the INS faces the massive challenge of effectively and properly implementing historic changes to immigration law. The modifications to the Immigration and Nationality Act made under IIRIRA are some of the most significant changes to U.S. immigration law since 1952. The enactment of IIRIRA, in addition to the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Antiterrorism and Effective Death Penalty Act of 1996, makes this one of the most fascinating and challenging times at the INS.
IMPLEMENTATION OF IIRIRA--PROCESS
Immediately after enactment of IIRIRA on September 30, 1996, Commissioner Meissner met with senior INS staff to set in motion the agency's organizational structure and process for implementation of the new law. At this meeting, we divided the provisions of IIRIRA into five thematic areas and created, respectively, five working groups: (1) alien eligibility for benefits; (2) verification of alien status for benefits and employment; (3) Title III of IIRIRA and those portions of Title VI related to asylum; (4) operational issues including the deployment of border patrol and interior enforcement positions, delegation of immigration law enforcement authority to state and local authorities, and parole; and (5) programmatic and management issues including authorizations of appropriations, the automated entry/departure pilot, biometric border crossing cards, and the amendments to the grounds of inadmissibility and waiver provisions.
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These teams serve as the foundation for implementing the new law and are responsible for promulgating regulations, drafting and issuance of field instructions and related forms, preparing the required reports, making changes to and drafting operating instructions, and helping to train agency employees to work with new systems and procedures. Approximately 75 INS employees are tasked to the work groups, including 20 INS employees detailed to Washington from field offices enhance and complement the efforts to execute the new provisions of the law. We meet semiweekly with the Commissioner and senior staff to discuss practical and policy issues raised by provisions of IIRIRA. Members of the working groups hold frequent meetings with the Executive Office for Immigration Review (EOIR), the Department of State, the Department of Health and Human Services (HHS) and other agencies to discuss key issues and coordinate implementation of IIRIRA.
Over the next year, the working groups will seek to accomplish an uncommon and remarkable amount of work in order to implement the new provisions of the law. All six titles of this Act have provisions, some of which became effective upon enactment, that will require the promulgation of regulations before the end of the summer. Approximately 63 sections require new or amended regulations. Approximately 75 forms require some modification or consolidation. The Act requires 25 new reports to be submitted to Congress, including 16 that are required to be submitted periodically. Many of the sections require field instruction and guidance. Overall, we expect to issue some 25 regulations in accordance with the Service's reengineered regulatory clearance and program processes between the months of February and September 1997. To date, we have issued 10 policy wires and field instruction memoranda, all of which have been shared with staff of the House and Senate Immigration Subcommittees soon after or simultaneous with internal INS issuance in an effort to keep you informed in a timely manner.
A significant part of the implementation effort is the training of our own employees and the education of members of the community about IIRIRA, its effects and implications. Over the next six months, we will educate more than 23,000 INS employees about the new law; this includes the training of more than 16,000 INS officers by April 1. However, we will not stop there. INS will continue to train our employees as additional regulations, forms, and procedures are developed and revised. In addition, we have provided a number of briefings for Congressional staff on various aspects of our implementation process and efforts. We have met with and briefed nongovernmental organizations and we are developing plans to provide information about IIRIRA's sweeping changes to other federal agencies, state and local law enforcement authorities, nongovernmental organizations, and members of the community.
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IMPLEMENTATION OF IIRIRA--POLICY
The subject of today's hearing, Title III of IIRIRA, made pervasive changes to the laws governing admission, inspection, removal and detention of aliens. The most significant changes include: a provision for the expedited removal of certain inadmissible aliens; the elimination of the ''entry'' doctrine as the line of demarcation between deportation and exclusion proceedings; the consolidation of exclusion and deportation into one proceeding; limitations on the availability of discretionary relief; strict requirements regarding the custody of criminal aliens and those with final orders of removal; and substantial limitations on the availability of judicial review.
Given the timing of this hearing, we would like to clarify that, in terms of the rulemaking process for implementation of Title III, we are limited to discussing the proposed rule. We believe that a discussion of any reaction to public comments would be premature and inappropriate, given the need for further review. Also, any comments offered or statements made during this hearing will not be considered a part of the rulemaking record and, unless they were received in writing prior to February 3, 1997, will not be considered in preparing the interim rule.
A notice of proposed rulemaking dealing with these issues as well as changes made in Title VI of the Act relating to asylum processing was published in the Federal Register (at 62 FR 444) on January 3. The drafting of the proposed rule, which completely reforms the inspection and hearing processes, required daily coordination and careful cooperation between the INS and the EOIR well as the Department of Justice and the Office of Management and Budget. The proposed rule was published just over ninety days after the date of enactment.
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Many provisions of Title III will become effective on April 1, 1997. The statute requires that regulations be promulgated thirty days in advance of that date. We expect to publish an interim rule on or about February 27 in order to meet the statutory deadline. The interim rule will be effective on April 1, 1997, and will afford 120 days for comments. Given the short period of time between the date of enactment and the April 1 effective date, we were limited to a 30-day comment period on the proposed rule. Nevertheless, we received 110 written comments during the comment period that ended last Monday, including those submitted by the House and Senate Immigration Subcommittees and by several members. We expect to have reviewed the comments and to submit a draft interim rule to the Department of Justice and OMB for review by the end of this week.
INS REMOVAL EFFORTS
Mr. Chairman, let me take a moment to inform the committee of the results of our recent removal efforts. Over the last four years, Commissioner Meissner has brought renewed emphasis to the removal of criminal and other aliens unlawfully in the United States. With the strong support of the Congress and the Administration, INS has raised the number of removals to record levels three years in a row and worked to restore the integrity of the deportation process. This fiscal year will see an increase in detention space to over 12,000 beds and an unprecedented effort to remove at least 93,000 aliens ordered deported or excluded--a 37% increase over last year's total of 68,000. While much work remains to be done, we have begun to restore public confidence in the government's ability to enforce the nation's immigration laws. For the first time in many years, removal is an increasingly realistic consequence for those aliens who would violate the law.
The results of our efforts this fiscal year and last, Mr. Chairman, have been impressive. In fiscal year 1996, the INS removed a record 68,000 criminal and other deportable aliens--up 36% over the results achieved in fiscal year 1995. Criminal alien removals increased by 13%, and non-criminal alien removals by 77%. Detention capacity rose to 9,500 beds by the fiscal year's end. This momentum has carried over into fiscal year 1997. In the first quarter, removals increased by 24% over the same period in fiscal year 1996. Ten thousand eight hundred fifty-four criminal aliens were deported--a 31% increase over the same period last fiscal year and 3,000 more than INS removed in an entire fiscal year just eight years ago. Over 60% of these criminal aliens were aggravated felons. INS detention space now stands at over 11,000 beds and will surpass 12,000 by October.
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For the first time in its history, INS is also tracking and reporting the many removals of aliens that occur without a final order. Prior to this fiscal year, the removal figures that INS reported publicly included only those aliens INS removed pursuant to a final order of deportation or exclusion. They did not include the many deportable aliens who, after being apprehended by the INS in the interior of the country, agree to return to their home country without formal immigration proceedings. While these aliens are not formally ordered deported, they are deportable, and their removal from the United States represents a significant accomplishment by the INS. In the first three months of this fiscal year, INS recorded 20,000 of these removals, and we estimate that there will be roughly 100,000 by fiscal year's end--bringing the total number of estimated removals from the United States in fiscal year 1997 to nearly 200,000.
While our accomplishments have been significant, Mr. Chairman, further effort is needed to create a truly efficient, credible, and durable removal process. The number of aliens unlawfully in the United States remains in the millions, and many aliens ordered deported are not removed due to a lack of resources. The passage of IIRIRA brought increased enforcement powers which should strengthen our removal efforts in the long term, but it also created many immediate challenges for the Service. Sweeping changes were made to the removal process, and the transition costs will be significant. Legal challenges must be addressed, new procedures adopted and implemented, and thousands of Service personnel trained. I am confident, however, that we will meet these immediate challenges and, working with the Congress, advance the government's efforts to deter illegal migration to this country.
Chairman Smith and Members of the Subcommittee, we appreciate the continued support of the Subcommittee for the initiatives taken by the Administration. Already during this session of Congress, we have provided several briefings to and met with the staff of the Immigration Subcommittee, and we look forward to continuing to work with you, Members of the Subcommittee, and your staff in our administration of the immigration laws.
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I am pleased to answer any questions that you or other Members of the Subcommittee may have.
Mr. SMITH. Thank you, Mr. Virtue.
Mr. Schmidt.
STATEMENT OF PAUL W. SCHMIDT, CHAIRMAN, BOARD OF IMMIGRATION APPEALS, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY MICHAEL J. CREPPY, CHIEF IMMIGRATION JUDGE
Mr. SCHMIDT. Mr. Chairman, members of the subcommittee, I'm Paul Schmidt, Chairman of the Board of Immigration Appeals, appearing on behalf of the Executive Office for Immigration Review, known as EOIR. With me is the Chief Immigration Judge, Michael J. Creppy.
Mr. Chairman, it's a privilege for us to appear before you today to discuss the implementation of title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and related issues regarding the detention and removal of illegal and criminal aliens. The 1996 act encompasses enormous changes in the immigration laws of the United States. As such, it must be viewed as among the most significant pieces of immigration legislation in this century. The manner of its implementation will affect the entire immigration system and is, therefore, of critical concern to all of us. It falls to the executive branch in the first instance to implement the act in both its specific letter and as it defines the intent of Congress. Equally, it falls to the legislative branch to oversee that implementation. We expect that this hearing will contribute significantly to the success of our implementation efforts.
The INS took the lead in generating the massive executive branch-wide effort to ensure that the necessary decisions were made, policies determined, and regulations implementing the 1996 act drafted and issued in a timely fashion. The interaction with INS on these over the last months has been extraordinary, and despite the short deadlines under which all participants operated, and continue to operate, has resulted in important solutions and very real successes in jump-starting the 1996 Act implementation.
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We are committed to the success of our own implementation efforts. The Office of the Chief Immigration Judge, in particular, has taken an active training role to ensure that the 200-plus immigration judges sitting in immigration courts around the country have every opportunity to develop the required familiarity with the changes in the law. A number of the significant actions taken by the Office of Chief Immigration Judge to implement the act are described in more detail in my testimony for the record.
With respect to the Board, in many instances the entire immigration community looks to the Board for its explanation of the law. The Congress with both the Antiterrorism and Effective Death Penalty Act, AEDPA, and the 1996 act, has provided a dramatic series of substantive changes to the entire immigration system. This has, in turn, heightened the Board's responsibility to provide clarity and precision in the delineation of the immigration law. This brings us to another stated area of subcommittee interest relating to workload and case processing at both the immigration court and the Board levels.
In fiscal year 1996, the immigration courts around the country saw some 262,572 cases and matters of all categories filed and completed work on 246,426, resulting in 150,121 removal orders. Overall, the trial courts have handled their caseload well, with progress in ensuring that cases generally are handled in under 8 months, although there are still courts where merits hearings take longer to complete.
Over the last year, and increasingly in this fiscal year, greater and greater attention has been paid to placing courts at detention centers, as Congress has increasingly directed the expansion of detention by the INS. At present, there are full-time immigration judges sitting at some 18 detention centers around the country. In addition, immigration judges hold hearings at over 20 other detention centers around the country by circuit-riding, videoconferencing, or telephonic hearings. Many of the last year's staffing decisions, as well as most of this year's, involved providing an adequate adjudicative presence at detention centers to ensure proper and timely case processing.
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In the immediate future, we estimate that there will be approximately 300,000 case receipts at the trial level in fiscal year 1997, with completed cases estimated in the 270,000 to 280,000 range. At the Board, the caseload increases have been even more severe. Case receipts in 1995 were approximately 17,500, with completed cases in the 12,000 range. By fiscal year 1996, that figure had jumped to 20,423 receipts, with completed cases rising by approximately a third to 16,721. Total removal orders issued by the Board in fiscal year 1996 were 9,558. At present, we estimate a fiscal year 1997 receipt figure of approximately 24,000, with completed cases between 20,000 and 22,000.
In seeking to deal with the dramatic recent increases in caseload, as well as those projected in the near-term, we have taken a number of critical steps to increase staffing, centralize processing, and improve case management.
Before concluding, I will briefly summarize EOIR's plans for expedited removal. In this area we have worked very closely with the INS to ensure workable and successful outcomes. The current plan involves the lodging of aliens subject to these procedures at nearby detention centers. It provides a significant boost to our capacity to handle the review of INS asylum officer denials of credible fear in a timely and effective fashion. We are already staffed at many of those detention centers and will, therefore, have enhanced capacity to provide the alien applicant with a reasonable opportunity to make his or her case within the mandated 24-hour to 7-day period.
Mr. Chairman, members of the committee, this concludes my opening statement. Chief Judge Creppy and I will be happy to answer any questions you or any member of the subcommittee may have. Thank you very much for your attention.
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[The prepared statement of Mr. Schmidt follows:]
Prepared Statement of Paul W. Schmidt, Chairman, Board of Immigration Appeals, Executive Office for Immigration Review, U.S. Department of Justice
Mr. Chairman and Members of the Subcommittee, I am Paul Schmidt, Chairman of the Board of Immigration Appeals, appearing before you today on behalf of the Executive Office for Immigration Review (EOIR). With me, in the same role, is Michael J. Creppy, Chief Immigration Judge, of EOIR.
It is a privilege for us to appear before you today to discuss the implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter referred to as ''the 96 Act,'' and related issues regarding the detention and removal of illegal and criminal aliens. The 96 Act encompasses enormous changes in the immigration laws of the United States. As such, it must be viewed as among the most significant pieces of immigration legislation in this century.
The manner of its implementation will, inevitably, impact upon the entire immigration system and is therefore of critical concern to all of us. It falls to the Executive Branch, in the first instance, to implement the Act in both its specific letter and as it defines the intent of Congress. Equally, it falls to the Legislative Branch to oversee that implementation. We expect that this hearing will contribute significantly to the success of our implementation efforts.
With the passage of the 96 Act on September 30, 1996, it quickly became clear that not only were there going to be significant changes in the law, but that many of those changes would take effect very quickly and the majority would be in effect by April 1, 1997--a scanty months after passage. The Immigration and Naturalization Service (INS) took the lead in generating a massive, Executive Branch-wide effort to ensure that the necessary decisions were made, policies determined, and regulations drafted and issued in a timely fashion. Throughout that effort, we worked in concert with the INS, as well as ensuring that our own substantive, procedural, and organizational concerns were met. EOIR constructed a team, led by our General Counsel, with significant involvement from every EOIR component, to coordinate with INS on all policy and regulatory matters implicating the adjudicative processes for which we are responsible. The interaction with INS on these matters over the last months has been extraordinary and, despite the short deadlines under which all participants operated (and continue to operate), has resulted in important solutions and very real successes in ''jump-starting'' the 96 Act implementation.
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As noted, we have been very much involved in ensuring that our own implementation efforts would be successful. We have developed a ''synopsis'' or summary of the 96 Act's provisions designed to provide any interested party with a quick review of the changes wrought by the 96 Act to the Immigration and Nationality Act. This has been provided to all EOIR and interested departmental components and private organizations. It has also been provided to the Subcommittee.
In addition, the Office of the Chief Immigration Judge, in particular, has taken a proactive training role to ensure that the 200-plus Immigration Judges sitting in courts around the country would have every opportunity to develop the required familiarity with the changes in the law. Among the many significant actions taken by the Office of the Chief Immigration Judge are the following:
Ensuring that all immigration judges, nationwide, received copies of the 96 Act as soon as possible, well in advance of the 96 Act's formal publication date;
Sending, as early as a week after the 96 Act was passed, notices to Immigration Judges regarding when sections of the 96 Act would take effect;
Creating a series of charts (provided to the Subcommittee) which set forth in graphic, ''decision-tree'' format, the potential impact of the changes embodied in the 96 Act. These charts have been distributed to all Immigration Judges, as well as other interested parties, for their use as appropriate;
Creating a training/orientation exercise for all Immigration Judges. While being careful not to tread upon the decisional independence of each Immigration Judge, the Office of the Chief Immigration Judge has created a training/orientation methodology involving senior Immigration Judges from each court working as a group in identifying and discussing the ramifications of the issues raised by the 96 Act. After these discussions, each Immigration Judge returned to his or her own court and led discussions there on the same subjects. At the end of those discussions, each court will report to the Office of the Chief Immigration Judge regarding their conclusions or remaining questions.
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Those reports will be used as the basis for further discussion, comment, or policy development. In essence, it is the Immigration Judges themselves, with some support from the Office of the Chief Immigration Judge, who will work together to create an understanding of the new law on the Immigration Bench.
While the Office of the Chief Immigration Judge has been making significant strides toward ensuring that the Immigration Judges are ready for the 96 Act implementation date of April 1, we have done the same at the Board. Borrowing from the Office of the Chief Immigration Judge's training materials, and with the same due regard for the decisional independence of the Board's members, we have fashioned a staff training course for mid-March. In some senses, the entire immigration community continues to look to the Board for its explication of the law. The Congress, with both the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the 96 Act, has provided a dramatic series of substantive changes for the entire immigration system. This has, in turn, heightened the Board's responsibility to provide clarity and precision in the delineation of the immigration law. This brings us to another stated area of Subcommittee interest, relating to workload and case processing at both the Immigration Court and the Board levels.
In FY 1996, the Immigration Courts around the country saw some 262,572 cases and matters (of all categories) filed, and completed work on 246,426, resulting in: 150,121 removal (deportation, exclusion, and voluntary departure) orders; 7,469 grants of suspension of deportation; 2,561 waivers granted under section 212(c); 5,140 grants of asylum; and 4,138 adjustments of status. Overall, the trial courts have handled their caseload well, with progress in ensuring that cases generally are handled in under 8 months--though there are still courts where merits hearings take longer to complete.
Over the last year, and increasingly in this fiscal year, greater and greater attention has been paid to placing courts at detention centers as Congress has increasingly directed the expansion of detention by the INS. At present, there are full-time judges sitting at some 18 detention centers around the country, including Bradenton, Florida; Elizabeth, New Jersey; Port Isabel, Texas; New York City and a host of others. In addition, Immigration Judges hold hearings at over 20 other detention centers around the country by ''Circuit riding,'' video conferencing or telephonic hearings at those sites on a regular basis. Many of the last year's staffing decisions, as well as most of this year's, have involved the effort to provide an adequate adjudicative presence at detention centers to ensure proper and timely case processing.
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In the immediate future, we estimate that there will be approximately 300,000 case receipts at the trial level in FY 97, with completed cases estimated in the 270,000 to 280,000 case range. Although ''outyear'' estimates are often trickier and more attenuated, the Office of the Chief Immigration Judge estimate for FY 1998 is approximately 325,000 cases, with completed cases between 290,000 and 300,000.
At the Board of Immigration Appeals, the caseload increases have been even more severe. Case receipts in 1995 were approximately 17,500, with completed cases in the 12,000 range. By FY 1996, that figure had jumped to 20,423, with completed cases rising by approximately a third, to 16,721. Total removal orders issued by the Board in FY 1996 were 9,558. At present, we estimate an FY 1997 receipt figure of approximately 24,000, with completed cases between 20,000 and 22,000. The picture for FY 1998 is less clear, and may involve some mitigation of caseload increase as the effect of the 96 Act begin to be felt at the appellate level. However, we are forced to plan for continuing increases to at least the 26,000 case level.
In seeking to deal with the dramatic recent increases in caseload, as well as those projected in the near term, we have taken a number of critical steps.
We have increased the professional line staff by nearly 100 percent over the last 2 years. While many of those lawyers have been only recently hired, once their full effect is felt, the Board should have a greatly increased case processing capacity;
We have increased the size of the Board from 5 members to 12, and the Attorney General has recently authorized an additional increase to 15 members with an expected concomitant increase in case processing capacity;
We have created a supervisory structure aimed at monitoring, managing, and assisting staff performance and productivity;
Over the last 6 months, we have centralized appellate filing, docketing, payment, and administrative processing in the Clerk's office at the Board in Falls Church. While this process has not been simple, especially at a time of rapidly growing caseload, it has had the benefit of freeing trial court support resources and reducing confusion and filing difficulties. In addition, with the process centralized in a single place, we may be better able to shorten the time required to prepare a case for consideration by the Board. Finally, the rapid enactment of two major immigration statutes, AEDPA and the 96 Act, which both had major impacts upon existing immigration law and which, in a number of instances, were inconsistent with each other, has presented serious difficulties for an adjudicative body whose principal responsibility is the timely and lucid description of the immigration law. Over the course of the fall and winter, the Board has had to place the cases related to a number of issues on holds pending the opportunity to adjudicate difficult and critical areas of the law that had changed. As a result, overall case processing slowed in a number of areas. Most of these ''holds'' have now been resolved, and the remaining few should be lifted shortly.
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Before concluding this opening statement, I will briefly discuss EOIR's plans for Expedited Removal. In this area, we have worked very closely with the INS to ensure workable and successful outcomes. The current plan involves the lodging of aliens subject to these procedures at nearby detention centers. It provides a significant boost to our capacity to handle the review of INS Asylum Officer denials of credible fear in a timely and effective fashion. We are already staffed at many of those detention centers and will therefore have an enhanced capacity to provide the alien with a reasonable opportunity to make his or her case within the mandated 24-hour to 7-day period.
This concludes my opening statement. Both Chief Judge Creppy and I would be happy to answer any questions you or any member of the Subcommittee may have. Thank you.
INSERT OFFSET RING FOLIO 42 HERE
Mr. SMITH. Thank you, Mr. Schmidt, and let me thank both you, Mr. Schmidt, and Mr. Virtue, for your statements today. I find them, frankly, productive, supportive, helpful, and I appreciate the attitude that was manifested by those opening statements.
I have a number of questions today, so I may, and will in fact, come back on subsequent rounds of questions to complete them, but let me start off and address my first question to Mr. Virtue, and perhaps to Mr. Martin as well. Under the figures released by the INS, the projection is that in fiscal year 1997 there will be about 70,000, as I understand it, individuals who will receive final orders of deportation, but who will not actually leave the country. I mentioned some figures a while ago that we have found that, while those individuals are not detained and are awaiting their appeal, something like 90 percent abscond and are never heard from or seen again. It seems to me that we ought to enforce the law as it now reads, which is that all those individuals should be detained and all should be removed within 90 days.
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What can we do to make sure that that provision is carried out in any way? What do we need to do? What do we need to get the administration to do?
Mr. MARTIN. As the lead official on removals, I think I can address that. That has been a point of concern for quite some time, and there are specific provisions in the legislation that will help with some of that. Let me mention those first.
In the past, there has been little disincentive to absconding. If someone's already out, the main consequence that we could impose, once we finally caught up with someone, was simply to do what they were facing anyway, and that was to remove them from the country. The legislation now has other specific provisions, in particular civil penalty schemes, for people who do not honor a voluntary departure arrangement and for people who do not leave, do not surrender for deportation when required. The latter compounds daily. Now some aliens won't be affected by that, but that does change the structure somewhat that we intend to use.
Mr. SMITH. All these individuals, are they not, are supposed to be detained?
Mr. MARTIN. Under current law, not necessarily, but after April 1, yes, those who are subject to the new law will come under section 241.
Mr. SMITH. Are you expecting to have the resources necessary to enforce the law?
Mr. MARTIN. Not immediately, as we indicated there. We will be using that to the fullest extent possible, but it will be a process of gradually expanding it. We're increasing the bed space this year by 2,700 beds, and the President's budget provides for another 3,000 beds next year.
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Mr. SMITH. The INS has said that in order for them to detain all individuals come April 1, or thereabouts, that they would need to spend about $200 million. The administration in its recent budget has allowed only $100 million. Why the discrepancy if the administration is serious about trying to make sure these individuals are in fact or do in fact leave the country?
Mr. MARTIN. Well, in every case when you're expanding a process and a capacity like that, the only way we can do it responsibly is to do it step by step. We've seen this as a long-term, multiyear process, and I think we're making good progress along those lines, but it's not just a matter of having the bed space; it's also a matter of having the necessary officers to find and locate the people and to arrange for transportation----
Mr. SMITH. I'm not sure I agree with you that everything has to always be on a step-by-step basis. If you had the money, you could do it, or if you're requesting money and get it, you can do it. When do you anticipate that provision in the law being executed 100 percent? I hope you're not talking about years, in other words.
Mr. MARTIN. Well, it is a matter of getting the money, but it's also a matter of getting trained officers, and because we're dealing with a sensitive law enforcement function, we can't simply pull people in without training. That's what I'm referring to, and it's important for us to do that in that way. I really think we have been increasing at a substantial pace. We have placed an emphasis on it, and we expect to continue to do that.
Mr. SMITH. Well, let me ask the question again. Last year we had about 75,000 such individuals who did not leave the country. You project 70,000 in fiscal year 1997. What do you project for fiscal year 1998?
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Mr. MARTIN. Well, I don't believe we've done a projection along those lines. I do believe we're making headway on that. Let me emphasize, too, part of the process is cumulative. There are a lot of things we're going to learn as we move into the implementation and use these tools, which we're eager to do and we appreciate having the capacity to do that.
Mr. SMITH. OK.
Mr. MARTIN. Ultimately, a law enforcement effort can't depend solely on a course of enforcement like that. We want to get to the point where we send a sufficient message that there's a much higher level of voluntary compliance, and we've tried to draft some provisions of the regulations that will also foster that.
Mr. SMITH. Judge Creppy, may I address a question to you or to Chairman Schmidt? The resources that have been provided to the Board of Immigration Appeals have increased, as have the number of judges on the Board. Mr. Schmidt, you seemed to testify a while ago that the backlog is increasing slightly every year, despite the increase in resources and increase in judges. Can we expect to get to the point where the backlog is beginning to diminish rather than continue to lengthen?
Mr. SCHMIDT. Yes, we intend to get there, Mr. Chairman. The first plan that Director Moscato and I have for dealing with it has been to process the most recent cases first as they come in rather than waiting and doing every case in order. We have tried to work on the post-September 1995 cases. Realizing that at some point cases sitting in the backlog create their own incentive for people to appeal, we've tried to prevent the buildup of a new backlog. So our projections are that we hope--it's projected in the numbers we have--by fiscal year 1998, to not be building up a backlog. In the meantime, we're looking--we're making some recommendations to the Department on ways that we can hopefully go through the existing backlog and cut down on some of those cases. We've experimented--I think the last time Director Moscato was here he shared with you that we experimented for about 6 months with a system where we devoted all of the work of one of the four Board panels to backlog reduction cases, and while that panel was very productive, we found we were just starting to build up too much of a new backlog, and we put them into processing the more recent cases and the detained cases.
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Mr. SMITH. Beginning in fiscal year 1998, you think that a backlog will diminish then, despite the slight increase projected for 1997?
Mr. SCHMIDT. Right.
Mr. SMITH. OK, thank you.
On the way to recognize the gentleman from North Carolina, we have been joined by the gentleman from California, Mr. Gallegly, who made a special effort to come across country to be with us for the hearing. We appreciate your being here, Elton. If you have an opening statement, we'll put it in the record, and if not, we'll----
Mr. GALLEGLY. I do not have an opening statement.
Mr. SMITH. The gentleman from North Carolina is recognized.
Mr. WATT. Thank you, Mr. Chairman.
Let me address the first part of my questions to Mr. Schmidt and Mr. Creppy because I want to make sure I understand the distinction between what you are doing and what is on the nonjudicial side. The outline of statistics at the top of page 5 of your statement which you read says, in fiscal year 1996, the immigration courts around the country saw 262,572 cases and matters, and you completed work on 246,000. Now are those judicial proceedings that you are describing there or are they--what is the distinction under the law as it has been between what is judicial and what is, in effect, bureaucratic?
Judge CREPPY. OK, well, let me try to answer that, if I can. The difference is that in an immigration court, pursuant to the Immigration Act, the alien has a right to a full-blown hearing, right to cross examine. He has to be given certain rights. He has the right to present evidence, and at that proceeding the Government is represented by an attorney, and there's a judge that basically hears both sides and he decides whether or not the person is deportable from the United States and if that person is entitled to any relief.
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Mr. WATT. OK, now that was the law up until 1996, as I understand it. How much of a change is there going to be in your caseload, your judicial caseload, as a result of the change in the 1996 law?
Judge CREPPY. OK, let me answer it like this: over the last, I would say, 3 or 4 fiscal years, the immigration court has had a 15 percent increase in cases, up until fiscal year 1996, where we experienced somewhere between a 25-, a 27-percent increase. Based upon those figures and with the new law, we estimated with the various types of relief, with the new type of proceedings immigration judges would have, that they're supposed to have a 20-percent increase this year, that we would experience somewhere between a 20- to 21-percent increase in cases. So we do not expect a decrease in cases; we expect----
Mr. WATT. OK, now I don't understand that. We've gone from a situation where basically--and maybe anybody can help clarify this--basically, we've gone from a situation where a lot of these things that historically had been done by the judicial process, under the revisions, is going to be done by somebody that's not a judicial official. Am I misunderstanding the significance of what we did last year?
Judge CREPPY. No. No, sir. Under the new law this act does reserve certain types of cases which constitute the bulk of the judges' work which is in the area of asylum. This act will actually create a new type of case called credible fear review. It created status reviews. It created limited review for people that were temporarily excluded. It created a whole new category of cases for immigration judges to consider, but these are limited-type hearings.
Mr. WATT. OK. Now let me go to the other side of the equation. If you say it's not going to cut down on the backlog of judicial cases, how many new people are we putting into the process on the bureaucratic side as a result of the changes in the law that we made in 1996?
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Mr. VIRTUE. Well, you may be referring to the provisions for expedited removal----
Mr. WATT. That's what I'm talking about, yes.
Mr. VIRTUE [continuing]. Those people who are arriving aliens. The statute provides for an order by an immigration officer excluding the person who appears to either have fraudulent documents or doesn't present the proper documents when they arrive in the United States. If the person does not express a fear of returning to his or her country, a fear of persecution, and if the person is not found to have a credible fear, then that person would not go before an immigration judge. That person would be subject to an order of removal and removed fairly promptly.
Mr. WATT. Well, how many people do you project that expedited process is going to get out of the judicial process? That's the question I'm trying to figure out. Have we just--by trying to streamline the process, it sounds like we haven't done anything on the judicial side. What are we doing on the administrative side? How do these two things interact with each other? I mean, they're supposed to interact in some kind of way, I take it?
Mr. VIRTUE. Right. I think the purpose of expedited removal was to cut down on the time period for a person who was appearing--arriving in the United States, and without documents to be here. Under the current process, that person has a full opportunity for a hearing, appeal to the Board of Immigration Appeals, and then appeals from that to the Federal courts. So that process has been restricted under this new act. It's difficult to put a number on that. I think we refer somewhere in the range of 30,000 or so cases to immigration courts in the exclusion process today. Some portion of those would have orders of removal issued by immigration officers. It's difficult, without trying to guess how many people might have a credible fear of persecution within that group, how many might still go to the immigration judge process.
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Mr. WATT. All right, now do I still have time? I don't understand the lights here.
Mr. SMITH. Let me say to all members who are present, apparently, our timekeeper is not working. So I'll have to have the general gavel, but please ask your next question and then we'll go on from there.
Mr. WATT. OK. I just didn't want to be in violation. I saw it go off and then I saw it come back on. I thought you were giving me another grace period here. [Laughter.]
Mr. SMITH. I'm trying to keep that balance you talked about.
Mr. WATT. Yes, that's very important to keep the balance. [Laughter.]
What about these new people who are exercising this authority to, on an expedited basis, remove people? What kind of training are they required to have? I take it they're not lawyers; they're not judges; they're not judicial officials. They are--I don't mean to make it sound demeaning when I say ''bureaucrats,'' but they are bureaucratic personnel, are they not? What are their requirements? What kind of requirements, qualifications, are we looking for for those people?
Mr. VIRTUE. When a person appears at a port of entry, they're inspected by an inspector at the port of entry. If, under our process, under the new act, if a person is considered either to be inadmissible because they have fraudulent documents or they don't present proper documents, that person would be referred to what we call secondary inspection. That secondary inspection----
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Mr. WATT. First, what qualifications does an inspector have, the first inspector?
Mr. VIRTUE. Well, that person has been through the immigration officers' basic training course and is versed in all of the provisions relating to inadmissibility and also any waivers of inadmissibility, and also interview techniques and questioning techniques, that type of training.
Mr. WATT. What about the secondary inspectors?
Mr. VIRTUE. The secondary inspector is typically a higher-level inspector. So they're either at the supervisory level or they are a couple of grades up, have been involved in the inspection process and have experience in that for some time, and are typically the people who would do the more thorough examination. We clear people through the airport fairly promptly, not as promptly as some people might hope, but primary inspection goes very quickly. It's secondary inspection where the more detailed interviews take place, and so those officers are typically at a higher level, and usually you'll find supervisors in that area.
Mr. WATT. And is that secondary inspector that you've devoted most of your training under the new provisions of the act to or is it----
Mr. VIRTUE. We're going to give training to all 16,000 officer corps employees. So all of them will have training in the new act.
What will happen for the expedited exclusion process is those people who are inadmissible because of these two grounds, each of them will have--we will take a sworn statement from each of them, and we have specific questions that inspectors will ask during the course of taking that sworn statement. One of those questions, or a couple actually of the questions, will assess whether the person has any fear of returning to his or her country. If, in fact, the person states such a fear, and the fear seems to be relevant, that person would then be referred to an asylum officer for purposes of a credible fear assessment. So the inspector, even in secondary, is not going to make quality judgments with respect to whether the person's fear is valid or not. That person--we will refer all persons who express a fear that seems to be relevant over to the asylum officer.
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Mr. WATT. I know I'm running out of time, but there's a big gap in there in those three or four words where you said, ''seems to be relevant.'' What exactly are you saying? I mean, because you're saying if it seems to an officer or an inspector that it's relevant, then the person goes to an asylum person; if it doesn't seem that they are relevant, then they don't go to an asylum person. And so while that's just two or three little words in there, that seems to me to be a major, major decisionmaking point right there.
Mr. VIRTUE. We will train our inspectors to refer anybody who expresses a fear of returning to their country, but there is an additional question, and that is: what is that fear? Why do you fear returning to your country? There may be circumstances where the fear would have absolutely nothing to do with asylum, but we are going to refer any cases of expression of fear. But, for example, I mean, if the question is, Well, why are you ''afraid to return,'' and ''I just shot my brother-in-law,'' or something, or ''I owe my brother-in-law money,'' then that might not be the type of fear that would give rise to an asylum claim. But our training will be such that we will err on the side of referring any case where the person expresses a fear, and I only say ''relevant fear'' because we want to make sure the person understands the question basically.
Mr. SMITH. Thank you, Mr. Watt.
And you do have individuals who are trained to determine what that credible fear is by asking various questions, and so on?
Mr. VIRTUE. The asylum officers are highly trained in interview techniques and also country conditions. They have at their disposal information about country conditions and making these assessments.
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Mr. SMITH. Thank you.
The gentleman from California, Mr. Gallegly, is recognized.
Mr. GALLEGLY. Thank you very much, Mr. Chairman.
I'm not sure who I should ask this question, so anyone that wants to jump in is fine. Last year it's my understanding that less than 11 percent of the nondetained aliens, that after all their appeals were completed and were ordered deported, actually left the country. Is that number accurate?
Mr. MARTIN. I believe that relates to the earlier discussion. That was an estimate that came from an Inspector General's report, and we believe that that is----
Mr. GALLEGLY. So, basically, what you're saying, 90 percent of all the people that have had every opportunity to prove their case appeal after appeal have been found--these are just the nondetained?
Mr. MARTIN. This is the nondetained; that's right.
Mr. GALLEGLY. Ninety percent never were subjected to justice; is that accurate?
Mr. MARTIN. Well, it is accurate that they were not removed from the country; that's right. That's been a major objective of----
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Mr. GALLEGLY. Could you explain to me why they were not removed from the country?
Mr. MARTIN. Well, it has been--that part of the overall removal process is perhaps the most labor-intensive, officer-intensive work that we have, to go out and locate someone, particularly if it's been a lengthy period before the order becomes final. We have been--it's been a key objective for Commissioner Meissner for several years to build up our officer corps and our resources in that area, to improve on that. As I indicated to the chairman, many of the changes that are made in this law will also help us in that process.
Mr. GALLEGLY. We have in the 1998 fiscal year budget I believe 3,000 new detention beds; is that correct?
Mr. MARTIN. It's on the order of 2,700, I believe.
Mr. GALLEGLY. OK, well----
Mr. MARTIN. Correct.
Mr. GALLEGLY [continuing]. In Government that's pretty close.
Mr. MARTIN. That's fine.
Mr. GALLEGLY. Now 2,700 or 2,600, or whatever we finally end up with, is that going to be enough to adequately handle criminal aliens alone?
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Mr. MARTIN. No, it is not.
Mr. GALLEGLY. So, in other words, we're just going to let criminal aliens just take off and walk out into the street?
Mr. MARTIN. No.
Mr. GALLEGLY. What are we going to do with them if we can't detain them?
Mr. MARTIN. We are complying with the detention provisions in the statute, and we are proceeding with that. Criminal aliens have been the chief priority for our removals process all the way along, and we have--in general, we do detain criminal aliens. That's why you see that those are not really among the percentage figures that we were talking about.
Mr. GALLEGLY. But the question I had was, would 2,700 new bed spaces be adequate to detain those that are criminal aliens, and the answer was no, that we will still not have enough bed space even for those. Do we make them just stand in the corner for 6 or 8 years until they have due process?
Mr. MARTIN. Well, let me explain the overall process. We have been building on many fronts in our capacity to deal with a whole range of removal issues. Criminal aliens have been the top priority, but it's clearly our intention to enforce the laws and to instill a new seriousness all the way through to the end of the process. When you get a removal order, it's important to remove them.
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Mr. GALLEGLY. I still am hearing all these great plans, but I'd just like to know simply, What happens to the criminal aliens that we have no detention space for prior to their day in court? What happens? If we don't detain them, what do we do with them?
Mr. MARTIN. Well, when we learn about criminal aliens, we pick them up. It has been a matter of expanding our reach into additional jail programs, into additional release sites, and so forth, to be able to do that. We take them into custody, and then depending on the category into which they fit, they may be able to seek release on bond.
Mr. GALLEGLY. With the new IDENT system that we have--and we have some good new identification systems, as you're well aware--what percentage of those that we do not detain are later to be found as having slipped through the cracks as criminal aliens? And when we talk about criminal aliens, we're not talking about someone that violated an immigration law.
Mr. MARTIN. Right. We mean another violation of the criminal law.
Mr. GALLEGLY. That's right, someone that we know was a criminal that did a bank robbery or a rape or a murder or something, then left the country, and then came back in, what percentage do we find of these individuals that have not been detained that we later find out that do have a criminal record; now we've got to go find them?
Mr. MARTIN. Well, I don't have a percentage figure on that. Our effort has been to try to set it up, particularly with releases from State prison systems, so that we are there; we put a detainer on those people. We either try to have a hearing and have a deportation order at the time when they are released, through our institutional hearing program, or, in any case, have a detainer on them, so that they come into our custody in those circumstances. There are others in situations from local jail systems and other places where it's a process of building up our capacity to reach those people.
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Mr. GALLEGLY. Mr. Chairman, I just have one short--I know that time is close.
Mr. SMITH. Please continue.
Mr. GALLEGLY. We know that there is a different situation at an international border with a country that has a contiguous border with ours than someone that has made a 15,000-mile airplane trip from some far-off country. If you find someone to be a criminal alien coming across the 2,200 miles of our international border on the south, do you often just offer voluntary deportation? And let me give you an example of what I'm talking about.
I recently toured the Terminal Island Federal facility in Long Beach, CA. I had a magistrate give me an example of something that happens all too frequently. A young man who was fifth generation, born in the San Fernando Valley, and his grandparents and his great-grandparents, and so on, were born in the San Fernando Valley. He was a troubled kid. He had done purse-snatching and petty theft, and so on and so forth, and never carried any identification with him. He got arrested and he said, ''I'm in the country illegally.'' So now he goes before a magistrate. The magistrate says to him, Mr. Whatever, ''would you accept voluntary deportation in lieu of prosecution?'' ''Oh, yes, Your Honor, I've been a very bad person. I'll accept voluntary deportation.'' They take him down to the border, release him. He gets on a phone, calls his mother at home. She brings his ID down the next day, and he enters the country with his real name.
Mr. MARTIN. If I understand correctly that was done through a local magistrate. That is not the kind of policy that we are trying to implement at all. There are times when we will work with the local criminal law enforcement officials to work out in an appropriate case a stipulated deportation order, but that's only after a careful check of the alienage of the individual. Sometimes that is an appropriate tool in our overall enforcement effort, and when we take someone out like that with a criminal record or with regard to stipulated deportation, we put them into our lookout system and make sure that they can't come back again. Clearly, there are many checks in the system so that doesn't happen to U.S. citizens.
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Mr. GALLEGLY. Obviously, we have a lot of problems. Just very quickly, what percentage of the criminal aliens have deportation orders against them at the time they are released from jail? Do you have any information on that?
Mr. MARTIN. I don't have that statistic with me.
We have--that would be in connection with the institutional hearing program?
Mr. GALLEGLY. That's correct.
Mr. MARTIN. Yes, I believe it's on the order of 30 percent who do that. The rest, though, would have a detainer, and we would be taking them into custody. We can provide the precise number for the record.
Mr. GALLEGLY. I would appreciate it.
[The information follows:]
Thirty percent of the criminal aliens released to INS custody from State and Federal correctional facilities in fiscal year 1996 had final orders of deportation.
Mr. GALLEGLY. Mr. Chairman, you know, we could go on all afternoon, but I appreciate your giving me the time you've----
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Mr. SMITH. Well, we may yet. Thank you, Mr. Gallegly.
The gentlewoman from California, Ms. Lofgren, is recognized.
Ms. LOFGREN. Thank you, Mr. Chairman.
I am interested, Mr. Virtue, in your comments about the proposal to treat as arriving aliens those who are apprehended within 24 hours of entry and whether you believe that is workable as a practical matter, and how much time might be spent assessing the number of hours within the United States as compared to other activities, and whether that is the best way to deal with the issue.
Mr. VIRTUE. I don't believe that's our proposal.
Ms. LOFGREN. Oh, no, it's not your proposal.
Mr. VIRTUE. Our proposal is----
Ms. LOFGREN. I think Mr. Smith suggested that as an alternative. I'm wondering if you've----
Mr. SMITH. If the gentlewoman will yield for a minute, this goes to the definition of arriving alien, where you have this conflict between someone who might have just crossed the border, and you don't know how long they've been in the country, or they might have been in the country a relatively short period of time and may be 200 miles away. We're trying to address that situation.
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Mr. VIRTUE. Right. In the proposed rule--and we have received comments on this, the chairman's and perhaps others; I haven't reviewed all of those, and we'll be considering this, but in terms of the proposed rule, we defined arriving aliens as those people who were appearing at a port of entry, because we felt that that would give us an opportunity to implement this provision in a controlled environment without some substantial issues that are unrelated to making a decision whether the person is admissible or not and applying the new provisions. So that's the approach that we took.
It's also difficult, even if you set a 24-hour rule, it may be difficult in some of the urban areas along the border to make that assessment. So we had a couple of issues that we were dealing with----
Ms. LOFGREN. Or even interior. I'm from San Jose; you'd have the same issue there.
Mr. VIRTUE. We preferred to make an assessment whether the person is admissible or not, without the extra issue of trying to determine how long the person might have been in the country.
But we have retained in the regulations the authority for the Attorney General, which is set out in the statute, to apply these expedited removal provisions to anyone who has been in the United States less than 2 years. And so, depending on our experience with implementation of the provisions at ports of entry and perhaps emergency circumstances or other situations that we may not even know about yet, the Attorney General certainly has that authority to apply this provision beyond arriving aliens. So we don't believe it is true that our definition of ''arriving aliens'' cuts off our ability to effectively administer this provision.
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Ms. LOFGREN. Now would you intend to use the port of entry arriving aliens definition for interior border check locations, for example, or not?
Mr. VIRTUE. It would not apply to people appearing at interior checkpoints, if you will. We would be applying it at the ports of entry.
Ms. LOFGREN. Oh, OK, it's absolutely at the point of entry?
Mr. VIRTUE. At the land border and the sea and airports, right.
Ms. LOFGREN. All right.
Mr. SMITH. Would the gentlewoman yield for just a second? The problem that I hope you all will address when we get to that definition of arriving alien is the situation where you have someone crossing a land border perhaps in a vehicle, and as soon as they travel, they're going north or south or east or west; 2 hours later they're 120 miles in the interior. Clearly, they're still an arriving alien, and you somehow need to have a broad enough net to catch those individuals and apply that definition to them. It's not an easy problem to solve. I just am raising the problem.
Ms. LOFGREN. Yes, I understand the reason why; it was clear in your letter why, and I guess what I'm hearing from Mr. Virtue is that, clearly, the ability to do that is reserved and acknowledged, but there's a desire to see how this works at the port of entries and then to move past after that's been assessed, if I'm hearing you correctly on that point.
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Do you have a timeframe in mind, if you were to proceed as described in your proposed rule, where this issue would be reviewed again, and perhaps additional regulations proposed?
Mr. VIRTUE. Well, as I say, we're sort of limited today, given the situation of the hearing being during the period in which people are considering the comments, to addressing our thinking in proposing the rule the way we did. Obviously, we are considering comments now, and so I can't really say whether there may even be changes between now and the interim rule. So I guess in fairness, and in answer to that question, I really don't.
Ms. LOFGREN. The other question--did my time run out, Mr. Chairman? I wasn't watching.
Mr. SMITH. It's not out. Please continue.
Ms. LOFGREN. I wanted to ask also about your proposal to include substantial provisions to contract out detention in the regulations, and in California I think we've got 40 percent or so of the population in the State of California, and as I thought about that, I thought about the proposal that is currently being discussed by the California State Legislature to change the definition of a misdemeanor for custodial purposes from 1 year to 2 years, which has been estimated to potentially double or even triple the amount of inmates in local county facilities, if the legislature does this, and whether you've had discussions with California about whether there's going to be any space available to the Service as a consequence of that, and if not, what your plan B would be.
Mr. VIRTUE. We haven't, to my knowledge, had any discussions with California on that particular point. We certainly engage regularly with California on availability of detention space, but, as far as I know, we haven't addressed that issue, and if I go back and learn that I am wrong and we have specific information on that, I can provide that information for the record.
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[The information follows:]
There have been no discussions with the State of California on this particular issue. In general INS tracks two kinds of detention space: (1) funded INS detention space in Service Processing Centers (SPCs), contract facilities, and State and local facilities, and (2) non-Service (i.e., State and local) detention space available on the open market. Funded detention space is tracked daily, enabling the Service to identify whether a District has available detention space or is at full capacity. Unoccupied space is then filled depending on Regional or District needs at the time, with priority given to serious criminal offenders. Non-Service detention space for rent on the open market is tracked quarterly to identify potential detention space the Service might occupy in the future should INS detention funding increase. It is important to note that this space is not truly ''available'' for INS purposes without additional funds.
Ms. LOFGREN. Well, I'd be very interested because, so far as I know, there is only one urban county with substantial space in its custodial facilities that is not under judicial order relative to overcrowding right now, and that is likely to get much worse, and I'm just sort of--I understand that this is a revenue source for local communities, but ultimately the overcrowding will have to overwhelm the need for financial resources, and really whether that had been sorted through by the agency in the context of proposing this.
Mr. VIRTUE. Sure, and if that is a problem, then we would have to look at alternatives as well, to State and local detention.
Ms. LOFGREN. Thank you, Mr. Chairman.
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Mr. SMITH. Thank you.
The gentleman from California, Mr. Bono, is recognized.
Mr. BONO. Thank you, Mr. Chairman. I'm not going to ask any questions. I would just like to comment that, whenever we have these hearings, it's very difficult. It always seems to be a game of cat and mouse as far as getting answers and getting correct data, and there's always extenuating circumstances to the data that we do receive. It's hard to keep asking questions and not get the total answer to the problems. It is discouraging. What seems to be a redundant approach of the INS is we're doing much better; the numbers are better; the percentages are better. Yet, in California the numbers have never been worse. So I can't make that addition, when someone tells me everything is getting better or much better, or there's vast improvement, not by the numbers of illegal aliens that we have in California at this present time.
What do we do about it? I almost--I don't know what we do about it, because it doesn't seem like we're together here or working together here, Mr. Chairman. It seems like we have to pull teeth every time we have a hearing, and you had to pull teeth to get responses to your letter. This is the ongoing way that we cooperate, and it won't work; it isn't working. And I just want to tell you that the situation in California is most desperate. Unless we get a handle on it, what do we do, just let it explode? Because it will explode; I mean, at a certain point we just can't handle it anymore and it will blow up. And so we're trying desperately to do something constructive, and we haven't been able to do. We're not adversarial, but we would like to work with you and say, ''What can we do that's constructive?''--if there are reasons, when I hear we can't be effective because that's the most labor-intensive area.
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The other observation that I have is Mr. Gallegly never got an answer to his question. He asked it three times, but didn't get an answer to it.
So I hope, Mr. Chairman, that somewhere in the near future we can work out a system where we can talk to each other, deal in facts, deal in actual data that is real, and see what we can do constructively to mitigate this problem that I promise you will be a humongous problem very soon that will be in proportions that we absolutely can't handle.
Thank you.
Mr. SMITH. Thank you, Mr. Bono.
The gentleman from Florida, Mr. Wexler, is recognized.
Mr. WEXLER. Thank you, Mr. Chairman.
I'm just trying to understand this, and I, too, would like to follow on--is it Mr. Gallegly's comment or question? At this, what I guess ultimately is, the final hearing, where 11 percent of the people not to be eligible to stay wind up leaving, but 89 percent wind up staying, physically, what happens that allows the 89 percent to evade what should have been the court's order?
Mr. MARTIN. Well, usually that order does not become final at the hearing where the individual is present along with the Immigration Service. That's a key element in this overall process. The immigration judge may issue a ruling. The individual can reserve appeal. They perfect the appeal. That's generally a paper process. The individual is not around; it may be many months before the appeal decisions come through.
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The other element is voluntary departure, frequently granted by an immigration judge. The person agrees: give me a certain period of time; I'll go out under my own power and not under a deportation order. Those have--the record has not been good of people honoring that, and the percentage has been shrinking in recent years. The new statute limits the period of time on voluntary departure.
And we have been looking at many other things. I share many of the frustrations that have been expressed here. We have been looking at a number of different elements as to how we can best address that and make the most effective use of our resources to deal with those situations. Again, the new statute gives us some help along those lines.
Mr. WEXLER. If I could follow, the nature of these proceedings in terms of the ruling that the judge must enunciate, aren't they fairly routine in terms of the applicable law and the application of the law that the judge must make or is it highly complicated, where extraordinary levels of research or contemplations must go on?
Mr. MARTIN. I'd be happy to defer to my friends from EOIR on that, but it varies greatly from case to case. There can be some that are very complex.
Judge CREPPY. It would vary from case to case, especially in the asylum area. But, generally speaking, they may see the same types of cases, the special asylum cases, and various other types of cases, but in terms of degree of complexity, it's going to be based on the individual case.
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Mr. WEXLER. OK, may I continue?
I understand there will always be some cases that are more complex than others, but--and correct me if I'm wrong, please--an overwhelming majority, however, must be dealing with the same parts of the statute, with the same types of evidence, with the same evidentiary calls that the judge needs to make; right?
Judge CREPPY. Yes, I would say generally that's true. That's absolutely true.
Mr. WEXLER. And would you have any recommendations, then, as to this 89 percent? I understand that some are involved in these voluntary orders, but for those--and I don't know what the percentage of the 89 percent this involves, but do you have any recommendations on how there can be better enforcement of the court's orders?
Judge CREPPY. Well, again, I think that the 1996 act goes a long way to fixing that problem, and, again, I think the Service is really making, in my view, great efforts to do it. I mean, they have implemented policies where they're at the courthouse to take people into custody after the judge rules in certain types of cases, and I think initiatives like that, coupled with the 1996 act, is going a long way to being able to enforce the orders of the judge.
Mr. WEXLER. Just tell me, if you would, I understand that under the 1996 act many people won't even get to this stage, but for those people who do get to this stage, what are you, as the judge, going to do differently at that stage under the 1996 act than you are currently?
Judge CREPPY. I think the only thing that we can do--and it isn't that big--is just to emphasize the penalties that are now contained in the 1996 act which creates civil and criminal penalties if you don't depart timely, and things of that nature. I think taking the time and taking the effort to impose on the individuals, if you don't depart and if you are caught, there are serious consequences for you, may assist and help the INS to remove these people.
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Mr. WEXLER. If I may, if I understand it, the difference between current law and the 1996 act is this additional aspect of civil penalties.
Judge CREPPY. Well, it's the aspect of civil penalties, coupled with, I think, increased penalties and the criminal area, coupled with the fact that there is a strong intent that, to an extent that you can detain a person that you think is a flight risk, that the person should come into custody. And as I indicated, I think the Immigration Service has implemented a policy with the court. We have an MOU where it's all taking place on various types of criminal aliens.
Mr. WEXLER. So it's your opinion, then, because of the increased power to detain, that will then give you the authority, and you in fact will detain more people?
Judge CREPPY. I think that it is the fact that we have now a stronger law that imposes stronger penalties on the individual, coupled with, I think, the Service is serious, and has implemented initiatives to take these people into custody, to the extent that they can, such as by having an MOU with the court saying that we want to be at the courthouse to take these people into custody.
Mr. WEXLER. If you'll permit me one more question, Mr. Chairman, very quickly----
Mr. SMITH. Please go on.
Mr. WEXLER. In your experience, how many of the advocates before you have assets that they would be concerned about to begin with?
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Judge CREPPY. How many of them have assets? That's going to vary, but I would say that it depends on how long a person has been in the United States. We get a lot of suspension cases, which, as you know, you have to have 7-plus years to get the relief. So those people would have a bigger stake in terms of leaving, but in terms of those that have not been here that long, they would not have that many, but it's going to vary, I mean, from case to case. But, generally speaking, I would say that they do have a stake because they have been here for extended periods of time.
Mr. WEXLER. Thank you.
Mr. SMITH. Thank you, Mr. Wexler.
We'll go to the gentleman from Tennessee who is recognized.
Mr. JENKINS. Mr. Chairman, I don't have any questions at this time.
Mr. SMITH. OK, thank you. So we'll go to the gentleman from Indiana, Mr. Pease.
Mr. PEASE. Thank you, Mr. Chairman. I know we're past the time that we were scheduled. I will be brief, and I guess I direct this to Mr. Virtue.
I regret that I missed part of your remarks. I was at another hearing. But you presented a statement that quoted some statistics about improvements in your record during 1996 in removing criminal and other deportable aliens, claiming a 36-percent increase over fiscal year 1995 in removal of criminal and deportable aliens. I believe that Associated Press reported on that and said that you included in the 1996 figures those who were voluntarily removed, and those were not included in the 1995 figures. Is that correct? And if it is correct, is there a reason for the difference in the way you account for those deportations?
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Mr. MARTIN. If you don't mind my responding to it----
Mr. PEASE. That's fine.
Mr. MARTIN [continuing]. Because I think that press account was from an announcement that I made.
Mr. PEASE. OK.
Mr. MARTIN. That is not--there was no change in the way that we counted from fiscal year 1995 to fiscal year 1996 on those numbers, from the 50,000 increasing up to 68,000. Those are entirely people who were removed under a formal order of deportation or exclusion.
We now have a new system that was talked about yesterday for identifying the so-called voluntary returns, people who go out without a formal order issued by an immigration judge, for example. We have been working on that new system for many years. We've been removing them from the interior. That's an additional total which we are now making available, but we have not lost our focus, and we're trying very hard not to mix apples and oranges. The 50,000 up to 68,000 was entirely the same kinds of categories and the same group of people being removed, and similarly with the 93,000 target for this fiscal year. That's counting only formal, final order removals.
Mr. PEASE. So the simple answer is that the Associated Press report was wrong?
Mr. MARTIN. I haven't seen the exact report, but from what you said, yes, it was wrong.
Mr. PEASE. OK, thank you.
Mr. SMITH. Thank you, Mr. Pease.
The gentleman from Utah is recognized, Mr. Cannon.
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Mr. CANNON. Thank you.
One of the problems with criminals is they--I had a law professor who used to do a little series on criminals are dumb, but, generally speaking, criminals do not persist in an activity that is not profitable. And to ask a general question, then follow up with some specifics: are you doing anything to find those areas, new areas, that are being exploited by illegal immigrants and trying to respond quickly before those become significant problems? And this would be to Mr. Virtue.
Let me give you a particular case there. In Salt Lake City, we have had the unfortunate problem of having overcrowded jails and now being under a consent decree that requires that people be not sent to jail in Salt Lake City. It's going to take another year or two before we get new cells online. And as a result of that, we've been inundated with illegal immigrants who are selling drugs. The overwhelming percentage of our violent crime today and our drug crimes are illegal immigrants. And Salt Lake City, particularly, needs a number of new INS enforcement agents. Do you have a policy for responding to those kinds of problems before they get out of hand, as they have done in Utah?
Mr. VIRTUE. We do. In addition to our investigators being involved in investigating criminal provisions relating to immigration fraud, we also participate in a number of task forces, both at the national and at the local level, in which INS agents are involved in investigations of any number of different criminal areas. Those task forces have evolved over a period of time. The Organized Crime and Drug Enforcement Task, the INS currently has, I think, 119 positions assigned to that task force throughout the country. We're also focused on criminal areas. For example, an emerging criminal area and one that is a real problem is the violent gangs, and we also participate--we have 150 agents assigned to violent gang task forces as well.
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Our participation in local task forces varies from time to time. If we took a snapshot, we'd find about 42 officers assigned to such task forces right now, but it varies. And we leave that basically up to our field managers to deal with the State and the local governments on our participation in those State and local task forces.
So, in answer to your question, by our participation in the task forces where we think we've provided significant benefit to those other law enforcement agencies. It has also benefited us. It's been of benefit to us, participating in those as well, in terms of immigration enforcement.
Mr. CANNON. Are you familiar at all with the problem in Salt Lake? I think we have two agents for a multistate area. Salt Lake wants to get another 11 agents in place. Are you familiar with that, and do you know where INS is going with that?
Mr. VIRTUE. Not specifically. I can get that information back to you specifically on Salt Lake City. I don't have that information available to me now, but I can find out what our plans are.
Mr. CANNON. I would appreciate that. Thank you.
[The information follows:]
Although deployment plans for FY 1998 resources have not been finalized, additional investigative positions for the Salt Lake city area are not anticipated at this time. Since FY 1994, Salt Lake City's investigative resources have increased from 4 positions to the current level of 13. These 13 include 1 Organized Crime Drug Enforcement Task Force (OCDETF) agent, 1 supervisory special agent, 8 special agents, 1 immigration agent, and 2 investigative assistants. The result is a 325 percent increase in resources.
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The INS will continue to assess resource needs on a Service-wide basis consistent with Service and Congressional priorities, and all relevant factors will be considered in deploying FY 1998 resources.
Mr. SMITH. Thank you, Mr. Cannon.
Judge Creppy, may I go back to a question you were asked a minute ago about how we might lower the rate of aliens absconding. It seems to me that the answer to that is more detention, more detention, more detention. If we detain those individuals, then 90 percent are not going to abscond, and that was a point I was making a minute ago with Mr. Martin. It seems to me that the administration would want to make a good-faith effort to remove those individuals from the country. I wish their budget reflected that. They can still make a good-faith effort, and I hope conform and do better than we have in the past, after April 1.
But the question I wanted to ask you, the main way to reduce that number of individuals absconding is detention, but can't immigration judges do more themselves in the sense of using a bond, and I mean a bond that is a serious bond, that will keep these individuals in the country, will keep them so that they will show up for their hearing? It seems to me that there has been a reluctance by immigration judges to use a bond effectively as it's used in the rest of our legal justice system. What do you think about that possibility?
Judge CREPPY. Well, I think the use of bonds is nothing new. We have that presently under the law and although--so, in my view, and I've been in this business for over 15 years, and I'm very familiar with the bond-setting, immigration judges--the Immigration Service sets the initial bond. The Service sets the initial bond, and then, depending on the case, the alien has a right to a bond redetermination or custody redetermination hearing. And, generally speaking, when the alien makes that request for a custody redetermination, the judge is basically looking at: is this person a danger to the community or flight risk? I mean, is the person a flight risk in coming to the hearing, and things of that nature, and the judge will balance it, listening to both sides, and----
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Mr. SMITH. Let me shift my question over then, since you've pegged the INS here as the ones that set the bond. Why isn't the INS recommending a more serious level when it comes to setting the bond to keep individuals under INS control? Right now, as I say, the reputation is that it's not treated seriously. The rumor----
Mr. VIRTUE. The statute, in fact, has increased the minimum level of bonds. So we should see an increase in----
Mr. SMITH. I guess what I'm saying, it clearly isn't working when you've got 90 percent deciding to leave the country. What can you do in the way of a bond to keep more of those individuals under INS control?
Mr. VIRTUE. Well, we think the statutory provision raising the minimum will have an effect. We need some experience with that to see how that works over time. The other thing that the statute does is requires a bond of those people who are granted voluntary departure during the course of the hearing by the immigration court. We've set that bond at a minimum in the regulation of $500, but, depending on the individual circumstances, that bond may be higher as well.
There is also--and, typically, in the voluntary departure cases we haven't seen bonds being required. So we also think that will have an effect, but we'll have to see that over some time.
Mr. SMITH. OK, so you're taking steps to try to make it a little bit more effective?
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Mr. VIRTUE. Yes.
Mr. SMITH. Mr. Martin.
Mr. MARTIN. Yes, if I could address that also, clearly, the Service does play the initial role in setting the bond, and then it's subject to redetermination. A constraint on setting higher bonds in the past has been limited detention space. So, again, a key element, as you've indicated--and we're supportive, although we may disagree about the rate of increase--we want to see increased detention space; that will enable us to use higher bonds more widely.
And also on voluntary departure----
Mr. SMITH. Right.
Mr. MARTIN [continuing]. We've got another element in the regulations about requiring a travel document at a key point to make that more a real possibility.
Mr. SMITH. Yes. And let me go back to the broad picture. We have a situation today where roughly we're adding 275,000 illegal aliens to the country's population every year. We are not coming anywhere close to making sure that even a large fraction of those individuals leave the country. One way to, and a fairly easy way to, try to increase the numbers of individuals who are being asked to leave is to figure out a way to get these 90 percent that abscond not to abscond. As I say, the most important way is to detain them; that's the only guarantee, and lacking that, perhaps a bond or whatever.
But we're getting farther and farther behind. As you all know and as you all have announced, the number of illegal aliens in the country goes up every year. We're going backwards on a treadmill here, and the more we can do to try to get to the point where we're not increasing that figure, the better, and I think that one way to do it is with better detention.
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Let me go to removal proceedings for a second. In the new law--I think it's section 309--it streamlines the process of removal, and yet the proposed rule indicates that the authority would seldom be exercised. And it seems to me that that again is going in the direction of making it easier for individuals to stay in this country rather than be removed from this country. Why are you thinking of a proposed rule that has that impact?
Mr. MARTIN. I'm sorry, I'm not quite sure which provision you're referring to on----
Mr. SMITH. Section 309.
Mr. MARTIN. Yes, I've committed it to memory according to the sections of the INA. So I'm not quite sure which----
Mr. SMITH. My time is up. Take a look at that and get back to me, if you will.
Mr. MARTIN. OK.
Mr. SMITH. The rule seems to undermine what we're trying to do in rule 309. OK, thank you.
[The information follows:]
For the present, the INS does not intend to exercise the authority conferred in section 309(c)(2) to convert pending proceedings into removal proceedings. The Service initiates hundreds of deportation and exclusion proceedings every day, and many thousands of these proceedings remain pending with EOIR at various stages of completion. For some of these cases, reinitiation might well make administrative sense; for others, however, the repetition of pleadings, motions, preliminary evidentiary rulings, applications, testimony, and argument in a new proceeding would be wasteful. In addition, reinitiation would entail considerable planning and logistics, as well as accelerating the phase-in of the new law. The transition rule in section 309(c)(1) allows for a more gradual conversion to the new procedures, and will help the agency to ''retool'' for removal. It may be that, as removal proceedings increasingly replace deportation and exclusion proceedings, the Service will one day invoke the reinitiation authority to phase out residual exclusion and deportation cases.
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Mr. SMITH. I'll yield to the gentleman from North Carolina, Mr. Watt.
Mr. WATT. Let me first go on record, Mr. Chairman, as supporting your position with respect to those people who have gone through a process and been given all of the due process, everything that we should give them, and they've been determined to be people who should be deported. I want to be the first to say that I'm on the chairman's side of that issue. I mean, if 89 percent of those people are not being deported after they have been--I do have some concerns on the other end, that we are not putting people into that category without giving them all of the rights and due process, but once they get there, I hope nothing I say or even imply will suggest that I'm not fully in support of what he says. We need to find a way to deal with the actual deportation of people who have been determined to be in this country illegally. And so I'm going to express my desire to work closely with the chairman and with the INS to try to get to that point, because that's causing a significant problem in the country.
Now having said that, let me go back to the other side and get back to the concerns that I have about whether at the front end of the process people were coming in--whether we're going to get any people out of the system there. As I understand it--and I'm still not satisfied how these two things interface with each other--a person who presents themselves entering the country without proper documents is going to be immediately told they've got to leave the country; right? I mean, an expedited process?
Mr. VIRTUE. Well, that's right. I mean, they would be subject to an order by the immigration officer that is subject to review by a supervisor.
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Mr. WATT. But not subject to review by these gentlemen on the other side of the table from you?
Mr. VIRTUE. Unless the person expressed a fear----
Mr. WATT. Except for asylum?
Mr. VIRTUE. Except for the asylum issue, that's correct.
Mr. WATT. OK. Now how many----
Mr. VIRTUE. I'm sorry, there is another exception in the statute for people that provides an extra review for persons who have been admitted for permanent residence, refugees, and those people who have been granted asylum. So if those people are appearing at a port of entry, there is an opportunity to review----
Mr. WATT. We've taken care of the asylum. We've talked about the exception to the general rule. How many people do you project will fall into this category, but for the asylum exception and the other exception you just--I mean, do you have a projection how many people that will cover in a 1-year period?
Mr. VIRTUE. Yes, as I said, I think the referrals to the immigration court at the ports of entry for exclusion cases have been roughly around the neighborhood of 30,000 cases. I think last year we had about 4,000 or so asylum claims from port-of-entry cases----
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Mr. WATT. So that gets you down to 26,000.
Mr. VIRTUE [continuing]. But not all of those referrals to the immigration court involved inadmissibility under these two grounds, the fraudulent documents or the lack of documents.
Mr. WATT. I'm trying to back into a figure here.
Mr. VIRTUE. Yes, we don't have--unfortunately, we don't have that breakdown sufficient to get----
Mr. WATT. Have you got any kind of--I mean, half of those people, 30,000; would it be 15,000, 20,000 people?
Mr. VIRTUE. It would be a fair--yes, it would be a fairly substantial number because those two grounds are fairly common grounds for excluding people.
Mr. WATT. Now, then, my question shifts over to the other side. If you're taking 20,000 people out of the judicial process, what I'm still concerned about is that you still have a growing caseload, a growing backlog, despite that.
Judge CREPPY. OK, well, let me explain. You know, I would prefer to call it an increase in cases; I would not call it backlog because the cases go on the calendar and it's a question of how far out the cases are, and my job and task is to try to keep the calendars in as close as possible. But I don't want to mislead you, and I'm glad you came back to the question. You know, for budget and planning purposes, my job as the Chief Judge, also includes being a court administrator and I have to manage cases and try to anticipate where growth is--my job is to go back and to look at past trends, past statutes, and try to guesstimate, take an educated guess as to where I think the decreases and the increases will come from. And how do I do that? I base it on data that we have and based upon that. After doing this analysis and looking at the trends, as I indicated, which was up until 1996 a steady 15-percent increase, and this is overall--what you are focusing in on is just the exclusion cases and the various types of cases that come before the immigrant court.
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Mr. WATT. OK, well, I'll grant you that, and I'm not trying to be unfair to you.
Judge CREPPY. I understand.
Mr. WATT. I'm just trying to get a better appreciation of why we have this growing backlog. We're taking out, it sounds like, 20,000 cases right here.
Judge CREPPY. Well, it's only--well, you're taking out----
Mr. WATT. OK, let me finish the question. The question is: You obviously are taking into account the whole caseload. What's being added to offset those? That's really the question, I guess.
Judge CREPPY. So what's being added is the presumption that within the 20,000 cases, that nobody within that 20,000 is going to claim fear of persecution.
Mr. WATT. No, he's already taken those out. He started with 30,000.
Judge CREPPY. Well----
Mr. WATT. He started with 30,000. He said, of that 30,000, he predicts 4,000 or 5,000 of them will come out under the fear-of-persecution process, and those people would have been in your process before anyway.
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Judge CREPPY. No, no.
Mr. WATT. So, I mean, 20,000 I thought was a conservative figure, by the time we got from 30,000 down to 20,000. So I'm trying to figure out what's causing the growth.
Judge CREPPY. OK. Again, if the 20,000 that he's talking about are people that would not apply for--would not claim a fear of persecution, would not allege that they are an asylee or a refugee or a lawful permanent resident, and if the 20,000 that he's talking about are all people that would be removable from the United States because they have no documents or they committed fraud and misrepresentation, then there would be no role for the immigration courts. So I guess as a point of clarification, are we talking 20,000 in that circumstance? Because we're saying that this is a 20,000 deduction with no real possibility of someone alleging a fear, a claim, or being removable on some other ground, because----
Mr. WATT. Can you answer that question for me because I don't know. I mean, I'm just trying to figure out how these two things fit together here.
Mr. SCHMIDT. It's always dangerous, but maybe I can help.
Mr. WATT. All right.
Mr. SCHMIDT. I think what we have, as the committee has discussed, is we have a saturated system and we have a lot more resources being put into INS to go apprehend people. I think if we can remove 20,000 simple cases or more routine cases from Judge Creppy's caseload, these gentlemen, I think their enforcement agents are going to fill up those slots with criminals, other people they apprehend, that we now have court time to process. So I think it's a system where I don't think that time will go unused. I anticipate there have been ever-increasing enforcement efforts by INS, especially in the criminal area. A number of the things you're talking about today, getting more people out of local jails, doing a better job on going out and apprehending criminal aliens that may not be in detention--I know those are all things that are being worked on, and I would expect that what's going to happen is that what we're planning for is that some of the more routine cases that are going to go by expedited exclusion will be replaced with other types of apprehensions that will require hearings and removals.
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Is that not basically what we're talking about here?
Mr. MARTIN. There are a couple of different things happening here. There are some provisions that should serve to reduce the workload and caseload of the immigration courts: expedited exclusion to some extent, although there's some additional work there for the immigration judges in reviewing the no-credible-fear determinations.
Mr. WATT. That work would have been there anyway, wouldn't it?
Mr. MARTIN. Well, I suppose, yes, if it had gone in a full proceeding.
Mr. WATT. That's not new work?
Mr. MARTIN. That's not new; that's right.
Mr. WATT. Yes, OK.
Mr. MARTIN. We are also making more use of a provision adopted several years ago. It has been called administrative deportation. It's now under section 238 of the new law. Certain people who were not lawful permanent residents who have committed serious crimes can receive an order without going to the immigration court.
Further, the structure of the act now that limits certain kinds of relief will mean that many proceedings ought to be resolved at a very early stage--because there simply isn't as much to argue about, especially in cases where the alien has a criminal record. So those changes will reduce the immigration court's caseload.
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At the same time we're getting a lot of additional resources, we're addressing a wider range of issues. There will be more people put into proceedings. It is our objective, though, to try to get a much better balance between what we're putting into the proceedings and the use of those resources to do what has been expressed here: at the end of the process when someone has an order, to apply the resources effectively, smartly, to get people out of the country.
Mr. WATT. I think I understand what you're saying. I appreciate it. I mean, I think I've gone around and I now see how it fits together, but all the more reason the end product that Chairman Smith got us to is all that much more critical, because you're talking about, if you're replacing those noncontroversial cases, noncontested cases, with more serious cases--that's what I heard you saying. You're going out; you're using those extra resources to get more people who should have been in the legal, the judicial side of this in there and determine that they should be leaving the country; all the more reason that we've got to work on that 89 percent figure and getting it down to a substantially lower figure than that. Otherwise, we're just putting more and more and more resources into a process and not getting any real results from it.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt. I hope the INS recognizes the united front up here on that issue and responds accordingly.
The gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. I'm sorry, Mr. Chairman, I have nothing further.
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Mr. SMITH. OK, thank you.
Excuse me, the gentleman from Florida is back. Mr. Wexler is recognized.
Mr. WEXLER. No questions, Mr. Chairman.
Mr. SMITH. The gentleman from Utah, Mr. Cannon, is recognized.
Mr. CANNON. No, Mr. Chairman.
Mr. SMITH. All right, I'll recognize myself. Let me address my first questions to Mr. Martin and Mr. Virtue.
As I understand, in the first quarter of fiscal year 1997 there were 2,500 illegal aliens who were granted suspension of deportation. That represents about a fivefold increase from 2 years before that. I have to tell you we're not talking about a lot of people; what we're talking about here, quite frankly, is credibility.
During the debate on the bill last year, I specifically talked to the administration and asked them for their projection as to how many people they thought would receive a suspension of deportation in fiscal year 1997. I was told the figure 2,000, and that is why in the bill we wrote we were generous at allowing a cap of 4,000. What's the explanation for what appears to be a misrepresentation to me that we were going to have 2,000 individuals given suspension deportation; we're already up to 2,500 in the first quarter? What accounts for that other than what appears to be an attempt to backdoor as many illegal aliens in as we possibly can?
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Mr. VIRTUE. I think the figure that we talked about during the debate was 2,500, and I believe that was based on fiscal year 1995 statistics.
Mr. SMITH. Whatever it was based on, that was the figure I was told was going to be the total for the year.
Mr. VIRTUE. Well, OK, I don't know how--whether we sent something up in writing, but the discussions at least that I recall that I had personally were that, you know, we know that our suspension grants, which are grants by the immigration court--the Service doesn't adjudicate suspension applications--had been 2,500, or approximately 2,500, and that was based on the experience we had in 1995.
Mr. SMITH. Well, my question is two questions: one, we're not going to exceed the 4,000 cap, I presume, since that's law. What are you going to do come about the end of the second quarter when you hit the cap?
Mr. VIRTUE. Well, we're talking within the administration on exactly how to apply the cap and with the EOIR as well.
Mr. SMITH. What do you mean by ''exactly how we'll apply the cap?'' A cap is a cap of 4,000. You're not going to exceed that, are you?
Mr. VIRTUE. No. I mean, the cap restricts grants of suspension to 4,000.
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Mr. SMITH. Yes, OK.
Mr. VIRTUE. The law will be complied with.
Mr. SMITH. Well, we'll see, and I'm just saying that I was led to believe it was going to be--you say 2,500; I recall 2,000, and that was hit in the first quarter, and that was a surprise, given the assurances that I received. It sounds to me like it's going to be 4,000 and there's not much we can do about it since we put the cap into law. It makes me very glad I didn't put the cap at 10,000, which is what some people were arguing for, with the assurance it would never go over 2,000. But if the cap is going to hold firm, that's I think important.
By the way, that reminds me of another question I want to ask you. As you know, in the 1996 act we call for 1,000 new Border Patrol agents per year for the next 5 years. In the President's budget there's only sufficient funds for 500 Border Patrol agents. The appearance is that either the administration is not serious about reducing illegal immigration by having more Border Patrol agents or they don't think there's a problem sufficient to justify the thousand Border Patrol agents. Which would it be?
Mr. VIRTUE. Well, I do want to state that the administration is certainly committed to enforcing the immigration laws at the borders. In answering your question I have to put this into context. During the last 4 years, from 1993 to 1997, our Border Patrol budget has increased by 105 percent. The President stated two years ago that our goal was to have 7,000 Border Patrol agents onboard by the end of fiscal year 1998. The 500 Border Patrol agents in the fiscal year 1998 budget would cause us to exceed that goal. It is consistent with our approach of measured increase in the Border Patrol, given the needs as well as just agents on the ground, to keep up with infrastructure improvements and support for those agents as well.
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Mr. SMITH. Does the administration plan to adhere and follow and obey the law that we passed or not? Because the law says a thousand, and either the administration is planning to disregard the law, for whatever reason, whatever justification among those you just mentioned, or it plans to make sure that the law is obeyed.
Mr. VIRTUE. Well, I think the 500 also has to be put in the context of the fiscal year 1998 budget. That represents----
Mr. SMITH. I know the President's putting it in that context. I'm just saying that's not in accordance with current immigration law.
Mr. VIRTUE. But that does represent a 13-percent--the Immigration Service budget represents a 13-percent increase.
Mr. SMITH. I concede all that. I concede what it represents an increase of. It's just the appearance is the President isn't serious about reducing illegal immigration, if he can't even follow a law that has now been passed, and passed overwhelmingly by both Houses of Congress, that says that the number of Border Patrol agents should go up a thousand. That's not a question; that's just an observation.
I'll recognize the gentleman from North Carolina, Mr. Watt.
Mr. WATT. I don't want to ask another question; I will make an observation in response to what you're saying, that you've kind of got the President in a catch-22 here. I mean, how much--what he's saying is he's increased the INS budget by 13 percent in his budget. If he increases to do what you're saying, it's up 22 percent, and the other side of that is there's also a commitment to balance the budget and do other things. So you're really kind of in a catch-22 on a number of these issues. You know, on just about every issue we find ourselves in that predicament. You need more money to do what may be legitimate things, but there's a limited amount of money, and you've got to make some choices. I mean, I'm not defending his decision; I'm just saying, you know, you can't have your cake and eat it, too, as the old adage goes.
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Mr. SMITH. If the gentleman will yield----
Mr. WATT. Yes.
Mr. SMITH [continuing]. We gave the President his cake. We worked with the Appropriations Committee and gave him sufficient funds for those thousand Border Patrol agents. And you're right, it is a catch-22, but I would say it's of the President's making, not of my making, but your point is well taken.
Do you have any questions?
Mr. WATT. No, I'll pass this time.
Mr. SMITH. Mr. Pease, Mr. Cannon, you're going to leave it to me to keep--all right, I'll proceed. Let me go back to Mr. Virtue and Mr. Martin. I'm sorry----
Ms. LOFGREN. I apologize, the Science Committee is also meeting, and we had the NASA Administrator present.
Mr. SMITH [continuing]. The gentlewoman from California is recognized.
Ms. LOFGREN. I wanted to ask a question about the provisions on guardianship for unaccompanied minors and how that would work in the expedited removal proceeding. Can you address that?
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Mr. VIRTUE. We haven't specifically addressed guardianship issues in the expedited removal process for juveniles. We do have provisions in the regulations dealing with guardianship issues for juveniles who are in deportation proceedings; what will become ''removal'' proceedings. We may have to look at clarifying those, but I think our assumption is that those procedures would apply to the expedited removal process as well.
Ms. LOFGREN. I would be interested in further thoughts after the comment period closes, just in terms of the logistics. I mean, I think it's important to do and agree with the direction you're taking, but just logistically how this is going to work.
Mr. Chairman, I, having missed a lot of the other questions, I'm reluctant to ask more because they may already have been asked and perhaps----
Mr. SMITH. OK. Let me say to the gentlewoman from California, I and you and others might want to submit questions to the witnesses who are here today, and I'm going to ask them to respond in 2 weeks, if they will, to any questions you might have or I might have as well.
Ms. LOFGREN. Thank you.
Mr. SMITH. Let me go to voluntary departure and ask Mr. Virtue and Mr. Martin a couple of questions in that regard. The proposed rule makes it clear that the 120-day and 60-day limitations on this form of relief are firm and should not be extended. I just want to hear you say that you look to enforce the regulations in the way the law reads on those 120- and 60-day limitations.
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Mr. VIRTUE. We read the law that way as well.
Mr. SMITH. Thanks.
In regard to detention and removal, in both the antiterrorism law enacted last April and the Immigration Act, Congress took serious steps to ensure that the criminal aliens are apprehended and speedily removed from the United States. We heard some questions about that a few minutes ago. We still expect all criminal aliens to remain in detention unless there is absolutely no detention space for them. I have read accounts, and perhaps other members have read accounts, where supposedly some of those criminal aliens are being released, even though there is still detention space around the country. Is there any truth to that report? In other words, are there any criminal aliens being released when there is still detention space available?
Mr. MARTIN. With the way that the transition period custody rules are set up, it has been our reading that, once those are triggered--and they were triggered last October--then the statute itself sets up a framework for decisions about release. That framework, as it applies to individual cases, is quite similar to the provision that existed before the Antiterrorism Act under section 242(a), and that means an individual--there is an opportunity for an individual decision in each case looking at flight risk and dangerousness. So that is the way we have been interpreting it and----
Mr. SMITH. So your answer is that criminal aliens are being released even though there is detention space available because of----
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Mr. MARTIN. If there is a determination, in accordance with the provisions there of that section of the statute in section 303, there is a determination about flight risk and dangerousness--there's been litigation on this and there have been decisions in the Board of Immigration Appeals.
Mr. SMITH. It seems to me, for instance, in Texas I think there's something like 20,000 detention beds available, and yet, as you just admitted, criminal aliens are being released. It seems to me that you might want to come down on the side of keeping those individuals detained when, as I recall from the hearing we had last year, something like 78 percent commit additional crimes during the time they're out on the streets. It just seems to me common sense that you want to detain them if you possibly can, if there is any detention space available.
Something else that I might mention that is one of the most incredible figures I think we came across last year, and that is that one-quarter of all Federal prisoners today are, in fact, criminal aliens. If you want to do something immediately about reducing the crime rate in America, if you want to do something immediately about reducing the pain and suffering to innocent victims, the way to do that is to make sure that, first of all, individuals don't get into this country who have criminal intent and, second of all, when they get here and are apprehended, they're not released, but in fact detained until they're deported. Just a point, and I don't know if my friends on the committee realize that, but one-quarter of all Federal prisoners are now criminal aliens. That is just an incredible figure and points, I think, the direction to how we might immediately reduce crime rates in America.
Let me go now to the case of a criminal alien who is subject to the detention mandate. The only decision consistent with that statute is, as I mentioned a while ago, when the space is available to fill those spaces with the criminal aliens. The criteria that are used, some of which you just mentioned, Mr. Martin, in making those detention decisions, are they going--are the new criteria going to be consistent with the new law?
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Mr. MARTIN. Yes, they will be. As I just explained, we are following our own initial interpretation, which was put out in guidance, and then there have been some decisions, court decisions and Board of Immigration Appeals decisions, along those lines as well. We're also working on a regulation to do what you're talking about, to really tighten up the criteria, spell out more fully the criteria for release.
Mr. SMITH. OK, thank you. I don't have any other questions, if the others do not, except the questions that we will submit to you all that we hope to get, and expect to get, replies back in 2 weeks.
Let me just make an observation here that it seems to me that there has been a lot of attention today given to that 89 percent who have received the final orders of deportation and who abscond. The ones who get those final orders of deportation, the fact that only 11 percent are actually deported is an incredibly low figure. The solutions jump at us. One is to detain them and use up some of that detention space that we have, and the same thing goes for the criminal aliens; let's use those empty spaces that we have around the country. And I hope that you all would--and I know you will--respond to the concerns that you've heard today, particularly in those areas, and particularly with the regulations that you soon will be issuing.
Ms. LOFGREN. Mr. Chairman, could I----
Mr. SMITH. The gentlewoman from California is recognized.
Ms. LOFGREN [continuing]. Ask one quick question? In listening to the discussion here about the statistics, and in my experience sometimes the statistics that are relied on are not always as reliable as one would hope, and I want to probe that in this case. For those who have a voluntary departure alternative, as compared to deportation, are they counted into that number? And then what sort of mechanism is in place--last I looked, it didn't appear to me to be very accurate, reliable, or consistent--for reporting actual voluntary departure compliance? How do we know that these statistics are accurate?
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Mr. MARTIN. Well, by its nature, some of those are difficult matters to pin down precisely, because some people, for example, may have left under their own power, and we might not know about it.
Ms. LOFGREN. But they don't necessarily tell you?
Mr. MARTIN. In many circumstances--for example, if there's a bond--there are other reasons why people will make it known; for example, report to a U.S. consulate in a foreign country in order to cancel the bond and be relieved of that liability. The figure on absconding that we're using is an estimate. It was based on, I believe, an Inspector General study a while ago, and I think by its nature it's an area where we will have estimates. I can't emphasize enough our own commitment to dealing with that particular area. I also, Mr. Watt, share--I'm in the same camp with the chairman on doing that and really want to find a way to greatly improve that statistic. I also think once we are able to show some real progress on that--that may take a few years--we will see more and more people understanding that there's a seriousness about enforcing that and they will not abscond; they will realize, OK, the order is final; I didn't win my appeal; it's time for me now to show up for deportation.
Ms. LOFGREN. I don't think any of us would disagree that if an order is made there ought to be compliance. I'm certainly not disagreeing with that. I'm just sometimes a little skeptical about the statistics that I hear, and I was wondering about the origin.
I guess I might as well ask it now, because I'm not sure how I'd phrase it in a written set of questions, but, as I was listening to Mr. Gallegly's report when he went to Terminal Island, I have been struggling to try and understand, and maybe it's not the best time to ask since he's now gone, how that story could happen. As I understood his report, there was an American who was arrested who had no ID, who claimed that he had entered illegally, and then was given voluntary departure in lieu of prosecution, I guess by a California judge. And I'm wondering how that could happen. When one's arrested in California, I mean if you're arrested in San Jose, they're doing a positive ID for you with your fingerprints, for one thing, and there's no--how could that--is that myth that Mr. Gallegly was told or----
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Mr. MARTIN. I had not heard anything about that particular case. It's clearly against our policy. If anyone from INS was involved, we would only be involved in that with a determination of alienage. We are not in the business of removing U.S. citizens.
Ms. LOFGREN. Perhaps I ought to ask Mr. Gallegly. It's unfair to ask you. But as I went down to listen to the NASA Administrator, I was still trying to figure out how that could occur.
Thank you, Mr. Chairman.
Mr. SMITH. I have one more question before you all leave. Congress twice in 1996, in the antiterrorism law and in the Immigration Act, enacted provisions to prohibit State and local governments from adopting policies of noncooperation with the INS. How are you planning to enforce the laws? How do we get cooperation from entities, governmental entities, that say they're not going to follow a law, snubbing the INS, when in fact Congress has twice said you need to obey the laws?
Mr. MARTIN. Well, let me take an initial stab at that----
Mr. SMITH. OK, that's fine.
Mr. MARTIN [continuing]. And Mr. Virtue may want to add to that. I would say, first of all, generally, we have received increasingly helpful cooperation from State and local law enforcement agencies. It was a different picture during part of the 1980's when some of the noncooperation resolutions were being adopted. Many--even before the 1996 act was passed, many localities backed away from that stance and we have tried to promote better relations. As we have increased resources, we're able to do more along those lines. We do call it--I mean, we certainly are happy to have that and want to call that to the attention of any----
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Mr. SMITH. Just recently I've read where a couple of city councils have voted not to cooperate with the INS. What sanctions can you take? Or is this a question of just trying to--I think it may be past the point of jawboning; you may actually have to take some kind of enforcement actions.
Mr. MARTIN. I would have to consult the statute. I'm not aware that it had a specific sanctioning scheme in there, but, again, we would--our primary effort has been to try to build cooperative relationships, and we would not stint in calling to their attention these other provisions.
Mr. SMITH. One of the questions that I will submit to you all will be specifically if you can check to see how the laws might be enforced.
OK, I'd like to thank all the members who are here and thank you all as witnesses. This has been very informative, very helpful, and we appreciate your good testimony.
The subcommittee is adjourned.
[Whereupon, at 4:13 p.m., the subcommittee adjourned.]
A P P E N D I X
Additional Questions Submitted to the Immigration and Naturalization Service by Chairman Smith and Representative Lofgren and the Responses Submitted by Doris Meissner, Commissioner, Immigration and Naturalization Service
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INSERT OFFSET RING FOLIOS 43 TO 48 HERE
39—995CC
1997
IMPLEMENTATION OF TITLE III OF THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
FEBRUARY 11, 1997
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Serial No. 2
Printed for the use of the Committee on the Judiciary
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
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BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Immigration and Claims
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LAMAR SMITH, Texas, Chairman
ELTON GALLEGLY, California
SONNY BONO, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
ED BRYANT, Tennessee
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
CORDIA A. STROM, Chief Counsel
EDWARD R. GRANT, Counsel
GEORGE FISHMAN, Counsel
MARTINA HONE, Minority Counsel
C O N T E N T S
HEARING DATE
February 11, 1997
OPENING STATEMENT
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Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Schmidt, Paul W., Chairman, Board of Immigration Appeals, Executive Office for Immigration Review, U.S. Department of Justice, accompanied by Michael J. Creppy, Chief Immigration Judge
Virtue, Paul W., Acting Executive Associate Commissioner, Office of Programs, Immigration and Naturalization Service, U.S. Department of Justice, accompanied by David Martin, General Counsel
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Lofgren, Hon. Zoe, a Representative in Congress from the State of California: Prepared statement
Martin, David, General Counsel, Immigration and Naturalization Service, U.S. Department of Justice:
Information concerning criminal aliens
Proposed rule concerning section 309
McCollum, Hon. Bill, a Representative in Congress from the State of Florida: Prepared statement
Schmidt, Paul W., Chairman, Board of Immigration Appeals, Executive Office for Immigration Review, U.S. Department of Justice: Prepared statement
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims:
Correspondence to Federal agency from Chairman Smith and responses
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Opening statement
Virtue, Paul W., Acting Executive Associate Commissioner, Office of Programs, Immigration and Naturalization Service, U.S. Department of Justice:
Availability of detention space concerning California
Investigative positions concerning the Salt Lake City area
Prepared statement
APPENDIX
Additional questions submitted to the Immigration and Naturalization Service by Chairman Smith and Representative Lofgren and the responses submitted by Doris Meissner, Commissioner, Immigration and Naturalization Service