SPEAKERS CONTENTS INSERTS Tables
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INSTITUTIONAL HEARING PROGRAM
TUESDAY, JULY 15, 1997
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:37 a.m., in room 2226, Rayburn House Office Building, Hon. Lamar S. Smith (chairman of the subcommittee) presiding.
Present: Representatives Lamar S. Smith, Edward A. Pease, Chris Cannon and Melvin L. Watt.
Majority Staff Present: Jim Wilon, counsel; and Judy Knott, staff assistant.
Minority Staff Present: Martina Hone, counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order. We welcome you all to hear what the witnesses have to say today on such an important subject.
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The Institutional Hearing Program or IHP is designed to remove criminal aliens from the United States as soon as they get out of prison. There are over 100,000 criminal aliens in Federal and State prisons. In the Federal prisons, there are about 25,000 criminal aliens, which is almost 25 percent of the entire population, up from about 1,000 aliens in 1980. By the way, that probably converts to something like a 2,500 percent increase in 16 years.
These criminal aliens are a drain on the American taxpayer while they are in prison; and when they get out of prison, they pose a significant threat to the public safety.
When the IHP is working properly, criminal aliens are promptly removed from the United States. However, when criminal aliens do not go through the IHP, they either end up in INS detention at taxpayer expense or they are released back into American communities and neighborhoods.
We will hear about these problems from the General Accounting Office, our first panel today. The GAO will confirm that the IHP has failed to remove a majority of the criminal aliens who are covered by the program.
Increased intake of criminal aliens means that the IHP is now called upon to handle 40,000 new cases each year. There is also a large backlog of older inmates who did not go through the IHP process when they entered prison but who are potentially removable. But over the past 3 years, less than 30 percent of these eligible prisoners have actually completed the IHP and an even smaller percentage has actually been deported.
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For example, in fiscal year 1996, the INS accomplished only 10,350 removals under the IHP. Of the remaining 30,000 criminal aliens who were released from prison that year, about 6,000 were released directly into the community and the remaining 24,000 were released into INS custody.
Since the INS has only 12,000 beds in its detention facility, they could not hold all of those criminal aliens long enough to complete removal proceedings. Instead, thousands of criminal aliens were released by INS, either on bond or on their own recognizance. Obviously, once they are free, many of these criminal aliens never show up for their deportation hearings. This leads to taxpayer dollars being wasted on unnecessary INS detention costs, an estimated $63 million in fiscal year 1995, according to the GAO.
It also leads to an even more serious problem: thousands of criminal aliens released into American communities and neighbors. Many of these criminal aliens have committed serious offenses and continue to pose a grave threat to public safety.
In a spot check by the GAO of 6,000 foreign-born criminals who completely bypassed the IHP process during the 6-month period in fiscal year 1995, about 2,000 were released into the community, including 635 who were classified as aggravated felons. These releases were in violation of Federal laws requiring aggravated felons to be held in detention until their removal from the United States. Of these 635 aggravated felons at least 148 were arrested after their release on a total of 184 felony charges. These figures will most likely turn out to be even higher, because the recidivism rate among convicted felons tends to be about 75 percent. But, even as they are, these numbers are already extremely alarming.
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The IHP should be a high priority within the INS's enforcement and removal efforts. One reason is that the IHP is targeted at convicted criminals, who are generally considered a higher priority for removal than other categories, such as undocumented workers or visa overstayers. A second reason is that the IHP deals with criminals who are incarcerated and, thus, much easier to locate and remove than criminals who remain at large.
In March of 1995, the INS head of programs testified before this subcommittee that the INS would remove 23,700 criminal aliens under IHP in fiscal 1996 and 36,200 in fiscal year 1997. The INS has not come very close to achieving those goals.
While the INS has been quick to blame the IHP's poor performance on a shortage of resources, that explanation is easily dismissed. Congress has doubled the INS budget over the past few years, with the vast majority of the extra money targeted for enforcement functions. More and more funds and staff positions have been allocated to the IHP, but every year the INS has failed to use those resources. Instead, many full-time positions have been left vacant or shared with other INS programs.
In September of 1995, the Department of Justice Inspector General reported that in the seven States with the largest criminal alien population, only 95 out of almost 5,000 special agents and border patrol agents—less than 2 percent of the total—were assigned to the IHP.
This is not to say that all the responsibility for the IHP belongs to INS. The IHP depends upon the dedication and cooperation of many State and Federal agencies, and none of those agencies are perfect.
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In order to make progress, all parties involved have to focus on several key factors. First, we have to focus on the percentage of eligible criminal aliens who are actually removed from the United States pursuant to IHP. The current rate of 25 to 30 percent must be increased. As a measure of accountability, we will have to see significant increase in this percentage.
Second, we need to know how much money INS is spending to detain or apprehend criminal aliens because they failed to finish the IHP. This is the true measure of how badly the IHP is failing the taxpayers.
Finally, we need to know how many dangerous criminals are loose in America because they were not removed under the IHP. This is the most important fact of all, because our public safety cannot be measured in dollars and cents.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
INTRODUCTION
The Immigration and Naturalization Service (INS) is legally empowered to remove most criminal aliens from the United States, based on either the seriousness of their crimes or their status as illegal aliens. For obvious reasons, criminal aliens who are incarcerated are easier to locate and remove than those who are at large; conversely, removing criminal aliens from the United States becomes much more difficult once they have completed their sentences and been released from prison.
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Since 1986, Congress has passed a number of laws directing that incarcerated criminal aliens go through removal proceedings while they are still imprisoned, so that they can be promptly removed at the conclusion of their sentences. In response to those laws, the INS and the Executive Office for Immigration Review (EOIR) created the Institutional Hearing Program (IHP), which allows them to conduct investigations and hearings, and issue removal orders, on incarcerated criminal aliens. The IHP is a nation-wide program, with most of its resources concentrated on the prison systems containing the largest numbers of criminal aliens, like the Federal Bureau of Prisons (BOP) and the prisons of high-immigrant states like California, Texas, New York and Florida.
The process is theoretically fairly simple. Foreign-born criminals entering prison are identified to the INS, which conducts interviews to determine whether they are removable. (Section 507 of the Immigration and Nationality Act (INA) requires state governments to notify INS of criminal aliens who have been convicted of violating state law within 30 days after the conviction, and also to provide INS with certified records of the conviction upon request.) Those found to be U.S. citizens are not removable; those who are illegal aliens generally are removable; and those who are legal permanent residents are removable if they have committed certain crimes specified by the INA and related case law.
Illegal aliens convicted of aggravated felonies can generally be given administrative removal orders by an INS officer, but all other inmates are entitled to a hearing before an immigration judge before a removal order may be issued. At the conclusion of their sentences, inmates under removal orders are released to the INS for immediate removal from the U.S.
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Unfortunately, after ten years of study and implementation, the IHP still has not come close to fulfilling its intended potential. Only a small minority of the eligible prisoners are actually removed pursuant to the IHP. The remainder are either put into INS detention, at taxpayer expense, or released back into American communities and neighborhoods, thereby creating a significant threat to public safety. By failing to accomplish the relatively easy task of removing incarcerated criminal aliens, the INS creates the much more difficult and expensive task of tracking down criminal aliens at large in the community.
SCOPE OF THE PROBLEM
There are over 110,000 foreign-born nationals in federal and state prisons. The intake of new foreign-born prisoners has been rising in recent years, with approximately 50,000 more entering our prisons in fiscal year 1996. Historically, almost 80% of foreign-born prisoners turn out to be removable criminal aliens; thus, in addition to those who are already incarcerated, about 40,000 more removable criminal aliens enter American prisons each year.
However, the INS has only been removing a small minority of those prisoners under the IHP. For example, in fiscal year 1996, the INS accomplished only 10,350 IHP removals. Of the remaining 3O,000 removable criminal aliens released from prison in fiscal year 1996, about 6,000 were released directly into the community, and the remaining 24,000 were released into INS custody. Since the INS has only 12,000 beds in its detention facilities nationwide, they could not hold all of those criminal aliens long enough to complete removal proceedings. Instead, thousands of removable criminal aliens were released by INS, either on bond or on their own recognizance.
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The numbers for fiscal year 1996 are typical of the IMP's performance over the past three years. Since 1994, less than thirty percent of the eligible criminal aliens have actually been removed under the IHP. Of the remaining seventy-plus percent, the majority of them begin the IHP process but do not complete it before their release from prison. And, of course, a substantial number of removable criminal aliens never begin the IHP process at all.
This leads to taxpayer dollars being wasted on unnecessary INS detention (an estimated $63 million in fiscal year 1995, according to the U.S. General Accounting Office (GAO)). It also leads to an even more serious problem: thousands of criminal aliens are released into American communities and neighborhoods. Many of these criminal aliens have committed serious offenses and continue to pose a grave threat to public safety. For example, GAO studied a population of 6,000 foreign-born criminals who completely bypassed the IHP process during a six-month period in fiscal year 1995, and found that about 2,000 of them were removable criminal aliens who were released into the community, including over 600 who were classified as aggravated felons under the INA. This release of removable aggravated felons was a violation of federal laws requiring aggravated felons to be held in detention until they are removed from the United States.
ROOTS OF THE PROBLEM
Lack of Management Emphasis. It has long been recognized that the IHP should be a high priority within the INS' enforcement and removal efforts. One reason is that the IHP is targeted at convicted criminals, who are generally considered a higher priority for removal than other categories such as undocumented workers or visa overstayers. A second reason is that the IHP deals with criminals who are incarcerated and thus much easier to locate and remove than criminals who remain at large. This makes the IHP a potentially exceptionally effective use of INS resources.
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Recognizing this, the INS has told Congress that the IHP would become a top priority, and that its performance would improve significantly. In March of 1995, the INS Executive Associate Commissioner for Programs testified to this Subcommittee that the INS would remove 23,700 criminal aliens under IHP in fiscal year 1996, and 36,200 in fiscal year 1997. In addition, INS set an operational goal of removing at least forty percent of those eligible under IHP in fiscal year 1996.
Unfortunately, INS has not even come close to achieving those goals, and IHP performance has stagnated over the past few years. In fact, the number of IHP removal orders issued by EOIR declined from fiscal year 1995 (13,182) to fiscal year 1996 (12,640). While the INS has been quick to blame the IMP's poor performance on a shortage of resources, that explanation is easily dismissed. Congress has doubled the INS budget over the past few years, with the vast majority of that extra money targeted for enforcement functions. Indeed, the INS' alien removal budget for fiscal year 1996 was $140 million dollars.
More and more funds and staff positions have been allocated to the IHP, but every year the INS has failed to use those resources. Instead, many full-time positions have been left vacant, or shared with other INS programs, as money and personnel allocated to the IHP have been diverted to other programs. In addition, the IHP has suffered from high personnel attrition and turnover, in part because many of the immigration agents assigned to the IHP have regarded it as a mere stepping stone to higher-ranking positions within more prestigious enforcement programs. Thus, the IHP has generally suffered from a lack of experienced, full-time staff. In September of 1995, the Department of Justice Inspector General (DOJIG) reported that in the seven states with the biggest criminal alien populations, only 95 out of 4,913 Special Agents and Border Patrol Agents—that is, less than two percent of the total—were assigned to the IHP.
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More fundamentally, the INS has simply not made the IHP a priority. INS Headquarters has not given firm goals and clear, detailed guidance to its district offices, and has not monitored their performance and taken corrective action when it is required. The IHP has not been given the resources, emphasis and authority necessary to make the program a success story.
It is also worth noting that on an organizational level, INS Headquarters has placed the IHP within its Programs division rather than its Operations division, which makes it difficult for INS Headquarters to use its full operational authority to enforce the requirements of the IHP.
In the long run, this lack of management emphasis and diversion of resources away from the IHP ends up costing the INS a great deal of money and personnel time. Eligible prisoners who avoid the IHP are later released into costly INS detention facilities pending removal, or they are released into the community so that INS agents later have to hunt them down again.
Structural Problems. INS is best able to deal with new prisoners when they are brought to a centralized, designated IHP facility and kept there until the entire IHP process is complete. This kind of system has been best implemented by the State of Texas, which processes its new foreign-born prisoners through intake and detention facilities at Huntsville, TX, where they remain until the IHP investigations and hearings are completed. Inmates are then transferred to their assigned state prisons until the end of their sentences, when those with removal orders are returned to Huntsville for release to the INS. In addition, foreign-born inmates who entered prison before this system was created are also transferred to Huntsville and released to INS at the conclusion of their sentences, so that INS can begin removal proceedings if necessary.
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Recent statistics indicate that under this new system, Texas is completing IHP cases at a percentage rate which is double the national average, and continuing to increase. In addition, the system is designed to ensure that even if a foreign-born inmate does not complete the IHP, he is released into INS detention rather than into the community (although, as noted above, INS may later release him into the community).
However, the Texas model has not been fully duplicated elsewhere. First, most other prison systems use more than one intake and release site. For example, California operates about 15 intake sites and almost 40 release sites; the Federal Bureau of Prisons operates 28 release sites; and Florida only recently agreed to reduce the number of its release sites from 46 to 15. This puts increased pressure on INS and EOIR employees and ultimately allows thousands of criminal aliens to avoid the IHP. While it may be necessary for some prison systems to have more than one intake and release site because of caseload, geography, or safety concerns, the participating prison systems should strive to minimize the number of their intake and release sites.
Second, not all prison systems complete their IHP processing at the beginning of the prisoners' sentences. For example, California generally delivers inmates to IHP hearing sites only thirty to forty-five days prior to their release dates. Inmates who contest removal end up being released from state prison before their cases are decided, at which point the INS must take them into detention and re-initiate the removal process. Also, inmates who are released earlier than expected by their parole boards usually end up avoiding the IHP hearing process entirely.
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In addition, California inmates do not go through the IHP unless they are illegal aliens who speak English or Spanish and who are willing to be deported. Along with those restrictions, California encounters transportation and scheduling errors and bed space limitations which effectively preclude half of the state's criminal aliens from participating in the IHP. The September 1995 DOJIG report found that California's restrictions on IHP participation result in additional INS detention costs of roughly four million dollars a year.
Another example of this problem is in New York State, where the IHP cannot be completed at the beginning of incarceration for the fifteen percent of the state's prisoners who go through intake processing at Elmira, in the western part of the state. This gap in the system could easily be remedied through a cooperative effort among the INS offices in New York City and Buffalo and the New York State Department of Corrections; however, those agencies have failed to agree upon and implement an effective plan for these western prisoners.
Third, most prison systems concentrate primarily on their incoming prisoners and fail to deal comprehensively with their backlogs of foreign-born inmates who entered prison without going through an IHP interview. These ''older'' inmates are generally released without having completed the IHP process, or even without having been identified as potentially removable criminal aliens. As noted above, the Texas system is now designed to ensure that all foreignborn inmates eventually pass through its IHP facility, and the Federal Bureau of Prisons has a similarly comprehensive system, although it does not yet include the large categories of Mexican and Cuban nationals. The California, New York and Florida systems do not comprehensively address their backlogs of foreign-born prisoners, although Florida does provide the INS with ninety days' notice of all upcoming releases of foreign-born prisoners.
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These problems all contribute to poor IHP performance, especially in certain jurisdictions. While Texas and (to a lesser degree) New York have recently made significant improvements in their IHPs, Florida and the BOP are still not able to complete the IHP process for even a quarter of their eligible criminal aliens, and the California system has been severely hampered by inefficiency and mutual recrimination between the INS and the state government.
In short, INS, EOIR and the federal and state prison systems can greatly improve their IHP performance by centralizing and rationalizing their case flow procedures. This will require sustained high-level emphasis within all the participating government agencies, as well as continued cooperation among all the agencies. Turf battles and other institutional conflicts, such as the dispute over SCAAP reimbursement(see footnote 1) which led New York State to hold a month-long ''IHP shutdown,'' must be rigorously avoided.
Other Difficulties. In addition to major systemic difficulties, the IHP process suffers from countless administrative hindrances, most of which arise from poor communications and information flow. For example, many removal cases are delayed when officials fail to obtain INS alien files (''A-files'') or certified conviction records in time for the hearing. Also, inmates often fail to show up for hearings because they have been transferred from one prison to another. Cases are also sometimes delayed when pro bono legal representation is not available.
In addition, the abbreviated administrative removal procedures enacted by Congress, which could be widely applied to IHP cases, have not yet been employed to their full potential, especially in California.
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Mr. SMITH. I will now recognize the Ranking Member of the subcommittee, Mr. Watt of North Carolina, for his opening statement; and on the way to do so, we will say, without objection, any member who is here or not here will have their opening statement made a part of the record.
Mr. WATT. Thank you, Mr. Chairman. I think I will refrain from making an opening statement, since I just came out of the dentist chair, and I am trying to preserve my jaw here.
Mr. SMITH. Without objection, so ordered.
Mr. SMITH. I will have to say to those who are present, if the Ranking Member does not mind, that I knew that he had gone to the dentist this morning and, in fact, I thought he might be late. I was going to ask as my opening question whether it was more painful to be at the dentist or at this hearing. He said there was no comparison, that he would much rather be at this hearing.
Mr. WATT. I would rather be anywhere than in the dentist chair.
Mr. SMITH. Fair enough.
We will welcome our first panel, if they will come forward and take their seats: Mr. Norman J. Rabkin, Director, Administration of Justice Issues, General Accounting Office; Ms. Evi Rezmovic, Assistant Director, Mr. Jay Jennings, Senior Evaluator; and Mr. Fred Berry, Senior Evaluator.
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We welcome you all; and before we begin with Mr. Rabkin, let me compliment you on undertaking the study that you have done on this particular subject. Not everyone knows that this was not done at our request, or at anybody else's request. You did it because you saw a need. You recognized the importance of the program to all Americans if we are going to try to make our community safer; and we appreciate you taking that initiative.
Mr. SMITH. With that, Mr. Rabkin, if you will proceed.
I will have to say, in the past, I have not enforced the 5-minute rule. I hate to start enforcing it with the GAO, but today we are going to try to be a little bit more strict. If you could keep your remarks to 5 minutes, we will be able to get through all the panels a little bit more quickly and, hopefully, before lunchtime. Mr. Rabkin.
STATEMENT OF NORMAN J. RABKIN, DIRECTOR, ADMINISTRATION OF JUSTICE ISSUES, U.S. GENERAL ACCOUNTING OFFICE
Mr. RABKIN. Thank you, Mr. Chairman, Mr. Watt. I am pleased to be here this morning to talk about the results of our work on the IHP.
Our work focused on three issues: First, we determined the extent to which deportable criminal aliens were included in the IHP.
Second, we assessed the extent to which INS completed deportation hearings for deportable aliens during their time in prison or after their release.
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Finally, we assessed INS's efforts to enhance the IHP.
I would like to summarize our results.
The goal of the IHP is to place aliens into deportation proceedings while incarcerated in Federal and State prisons instead of waiting until they are released. If the aliens are found to be deportable, the idea is to have all the paperwork done when they leave prison and have INS waiting for them at the front door to take them to the plane.
In 1995, INS was supposed to take all aggravated felons into custody upon completion of their sentences and only release them into the community if it determined that they were lawfully admitted aliens and were not a threat to the community and were likely to appear for the deportation hearings.
We asked the Federal Bureau of Prisons and correction officials in the 5 States with the largest number of incarcerated aliens to identify for us foreign-born inmates they had released in the second half of fiscal year 1995. There were 17,320 names on the list. As indicated in the two charts on my left, your right, we found that INS or EOIR—the Executive Office of Immigration Review—had data on about two-thirds of these inmates.
We then asked INS to check on the criminal histories and immigration status of the 6,000 or so inmates that, according to its records, it had not included in the IHP and had not taken into custody upon their release from prison. As shown on the chart on the right, the one with the smaller gray circle, 32 percent of these 6,000 were criminal aliens. In addition, of that 32 percent—or 1,899 inmates—635 had committed crimes that were defined as aggravated felonies when INS did its checking for us.
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We later asked INS to determine whether there had been any criminal activity by these 635 criminal aliens since they were released from prison. INS checked the FBI's National Crime Information Center and learned that 148 of them had been rearrested for crimes, including 184 felonies.
Now for the 11,436 inmates in our analysis that INS or EOIR did have records on—and this is shown on the chart on the left—INS completed the IHP for about 43 percent of those inmates. This was better than their overall completion record in fiscal years 1995 and 1996 of about 32 percent of all the people that they took into custody upon removal or upon release from prison.
I should add that INS's overall goal is to have every deportable criminal alien released from Federal and State prisons with final deportation orders. However, INS recognized that, for various reasons, it would not have sufficient staff to enable it to complete deportation proceedings for all criminal aliens in all States while they were in prison.
Therefore, for fiscal years 1995 and 1996, INS's operational goals were that about 30 and 40 percent of criminal aliens taken into custody would have completed deportation proceedings with final deportation orders prior to their release from prison and would be removed. INS met its goal for fiscal year 1995 but fell short for fiscal year 1996.
Getting deportable criminal aliens through the IHP while they are in prison saves INS time and helps avoid detention costs. INS was able to deport most aliens who completed the IHP within a week of their release. For those who started but didn't finish the IHP while they were in prison, it took INS about 5 weeks to deport them; and for those who didn't even start the IHP while they were in prison, it took INS about a year to deport most of them.
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Had INS been able to complete the IHP for every criminal alien it took into custody from Federal and State prisons in fiscal year 1995, instead of the 32 percent that it did, we estimate that it could have avoided about $63 million in detention costs.
Lastly, we looked at what INS was doing to improve the IHP. We found that INS, the Bureau of Prisons, and the States with most of the incarcerated alien population and the Congress were trying to make the process work better, but it didn't improve much in fiscal years 1995 and 1996.
BOP and some States have accepted INS's proposals to make the processing of aliens more efficient, but others have not. Further, although Congress provided additional resources for the IHP, INS did not staff the program at expected levels because of hiring delays, agent attrition, and the use of lower graded agents to replace rather than supplement the higher graded agents already working on IHP cases.
Finally, we found that INS's top managers did not adequately respond to identified IHP performance problems.
Mr. Chairman, this completes my summary; my colleagues and I would be glad to answer your questions at this time.
Mr. SMITH. Thank you, Mr. Rabkin.
[The prepared statement of Mr. Rabkin follows:]
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PREPARED STATEMENT OF NORMAN J. RABKIN, DIRECTOR, ADMINISTRATION OF JUSTICE ISSUES, U.S. GENERAL ACCOUNTING OFFICE
The Institutional Hearing Program (IHP) is the Department of Justice's main vehicle for placing aliens who are incarcerated in federal and state prisons into deportation proceedings so that they can be expeditiously deported upon release from prison. In fiscal years 1995 and 1996, Congress authorized dedicated IHP staff to help expand and enhance the program.
The Immigration and Naturalization Service (INS) has not fully complied with the law's requirements concerning criminal aliens who committed aggravated felonies, nor has it realized the full potential of the IHP. INS did not identify many deportable criminal aliens before their release from prison. For the second half of fiscal year 1995, this resulted in nearly 2,000 criminal aliens, including some aggravated felons, being released into U.S. communities without an INS determination of the risk they posed to public safety. GAO asked INS to determine whether there had been post-release criminal activity by 635 of these criminal aliens. INS determined that 23 percent had been rearrested for crimes, including 184 felonies.
INS did not complete the IHP for the majority of criminal aliens who were identified as potentially deportable and were released from federal and five state prisons during the last 6 months of fiscal year 1995. INS was able to more quickly remove from the country those aliens for whom it completed the IHP with final deportation orders than those aliens for whom it completed deportation hearings after their prison release. If INS had completed proceedings for all aliens released from state and federal prisons in fiscal year 1995 before their release, it could have avoided nearly $63 million in detention costs.
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INS' efforts to improve the IHP have encountered several impediments. The federal Bureau of Prisons and some states have accepted INS' proposals to make the processing of aliens more efficient, but others have not. Further, INS did not staff the IHP at the expected levels because of hiring delays, agent attrition, and the use of lower graded agents to replace rather than supplement higher graded agents already working on IHP cases. Finally, INS' top managers did not adequately respond to identified IHP performance problems.
GAO is making recommendations designed to help INS realize more of the IHP's potential.
Mr. Chairman and Members of the Subcommittee: I am pleased to be here today to discuss the Institutional Hearing Program (IHP), a cooperative program involving the Department of Justice and the states. The program's goal is to place incarcerated criminal aliens in deportation hearings so they can be readily deported upon their release from prison.(see footnote 2) Removing deportable aliens—particularly criminal aliens(see footnote 3)—has been the subject of congressional hearings and has been designated as a management priority at INS.
To assess the performance of the IHP, we reviewed INS activities and analyzed data on over 17,000 foreign-born individuals released from prisons in the last half of fiscal year 1995. Our work was designed to:
—determine the extent to which deportable criminal aliens were included in the IHP,
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—assess the extent to which INS completed deportation hearings for deportable aliens during their time in prison or after their release, and
—assess INS' efforts to enhance the IHP.
We focused primarily on fiscal years 1995 and 1996 because during these years Congress provided additional resources for IHP operations, and INS initiated several measures intended to improve the IHP's effectiveness in deporting criminal aliens. We concentrated primarily on the activities of INS—as opposed to the Executive Office for Immigration Review (EOIR), which makes judicial decisions regarding deportability—because INS has the lead role in identifying incarcerated criminal aliens, determining their deportability, initiating deportation proceedings, and removing aliens from the United States. In addition, we focused on IHP activities in the federal Bureau of Prisons (BOP) and in five states that account for over 80 percent of the total number of incarcerated foreign-born inmates in the country. These states are Arizona, California, Florida, New York, and Texas.
To assess the extent to which hearings were initiated and completed, we reviewed INS' nationwide statistics on the IHP. To identify which released inmates were in or had completed deportation proceedings, we asked EOIR to do a computer match of EOIR data with data from BOP and seven states(see footnote 4) on foreign-born aliens released in the last half of fiscal year 1995. To gather data on aliens taken into INS custody and removed, we asked INS to match the data obtained from BOP and the seven states against INS' Deportable Alien Control System. In addition, we asked INS to extract certain information from alien files for a random sample of released foreign-born inmates.(see footnote 5) To assess INS' success in enhancing the IHP, we interviewed INS, BOP, and EOIR officials in headquarters and field locations and state corrections department staff. We also reviewed INS plans, performance reports, and other documentation on the IHP. (See app. II for a more detailed description of our scope and methodology.) Our work was conducted between January 1996 and July 1997 in accordance with generally accepted government auditing standards.
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Based on information developed from interviews, documentary review, and analyses of data from large automated databases and from alien case files, our assessment of the IHP's performance is that it falls far short of its overall goals. We found that (1) INS failed to identify many deportable criminal aliens, including aggravated felons, and initiate IHP proceedings for them before they were released from prison.; (2) INS did not complete the IHP by the time of prison release for the majority of criminal aliens it did identify; and (3) INS has not realized several intended enhancements to the IHP.
BACKGROUND
Criminal aliens cost our criminal justice systems hundreds of millions of dollars annually and are generally perceived to be a serious and growing threat to public safety. In response to these problems, several major laws were passed between 1986 and 1996 that provided for the initiation of deportation proceedings for certain criminal aliens while incarcerated, expanded the types of crimes for which aliens could be deported, and sought to facilitate the expeditious removal of those aliens found to be deportable.
The Immigration Reform and Control Act of 1986, P.L. 99–603, requires that INS initiate deportation proceedings for criminal aliens as expeditiously as possible after the date of conviction. INS and EOIR established the IHP to meet this requirement. The Anti–Drug Abuse Act of 1988, P.L. 100–690, defined the crimes of murder and drug or weapons trafficking as ''aggravated felonies'' and required INS to begin and, to the extent possible, complete deportation proceedings for aggravated felons before their release from prison. It also required that INS take all such aggravated felons into custody upon completion of their sentences. In the early 1990s, the law was changed to allow INS to release aggravated felons from custody if they were lawfully admitted aliens, were not a threat to the community, and were likely to appear for their deportation hearings. However, beginning in October 1996, under provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104–208 (1996 Act), INS is required to take into custody a much larger class of criminal aliens beyond aggravated felons.(see footnote 6) In addition, under the 1996 Act, INS is required to take into custody and detain all aliens convicted of aggravated felonies, including those who were lawfully admitted.
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The IHP Process
INS agents generally rely on state and federal corrections personnel to notify them of incoming prisoners who state they are foreign born or whom corrections personnel identify as foreign born. Corrections personnel typically first learn that prisoners are foreign born during prison intake procedures, which include interviews with and record checks on arriving inmates. The IHP process begins when INS agents screen foreign-born prisoners to determine their deportability. The INS agents who screen foreign-born prisoners may be permanently assigned to a state or federal prison or may travel to the prison from their official duty stations. If the INS agent determines that an inmate has committed a crime for which he or she can be deported, the agent is to file a ''detainer'' with corrections officials. A detainer in a prisoner's record signifies that he or she is to be released to INS custody upon completion of the prison sentence.
The information that INS agents gather on a criminal alien is to be used to prepare an Order to Show Cause, a document that charges the alien with having committed a deportable offense. INS attorneys are to review the order for legal sufficiency and file it with EOIR. EOIR is to schedule an initial hearing and notify the alien. Once the alien is notified, the alien is included in the IHP. The purpose of the initial hearing is to explain the process to the alien, resolve evidentiary issues, prepare a list of desired witnesses, and address the issue of legal representation for the alien.(see footnote 7) The alien may immediately accept an order for deportation. Alternatively, a subsequent hearing may be held, during which witnesses may be called and evidence may be entered supporting INS' charge of deportability and/or the alien's claim for relief from deportation. After all the evidence is presented, an immigration judge renders a final decision. If the alien is ordered deported, a deportation order referred to as a ''final order of deportation'' is to be served on the alien.
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The IHP ends when the alien is released from prison (1) with a final decision that either orders the alien deported, grants the alien relief from deportation, or closes the case in some other manner;(see footnote 8) or (2) prior to a final decision on the case. INS is required to take certain deportable aliens into custody, whether or not the IHP proceedings have been completed.(see footnote 9) Those for whom the IHP proceedings are completed by issuance of a final order of deportation are to be held in detention until they are removed from the United States. A flow chart of the IHP process is in appendix III.
INS Failed to Identify Many Deportable Criminal Aliens, Including Aggravated Felons, Who Were Released From Prison
INS does not have information on all imprisoned criminal aliens. As a result, INS has no assurance that it complied with the legal requirements that it (1) place criminal aliens who had committed aggravated felonies in deportation proceedings while they are incarcerated, or (2) take those aggravated felons into custody upon their release from prison.
Our analysis of data on 17,320 foreign-born inmates released from BOP and 5 state prisons during the last half of fiscal year 1995 showed that INS and EOIR databases had no indication that IHP procedures had been initiated for nearly 6,000 individuals. To determine why these individuals were not in INS' database—for example, whether INS may have screened them for the IHP and/or put them into deportation proceedings without recording the information in its database—we drew a random sample of these cases and asked INS district offices to extract relevant information from individual alien files. On the basis of 329 responses obtained from INS districts in Arizona, California, New York, and Texas, and from BOP, we found that INS could not determine whether it had interviewed many of these foreign-born inmates to determine their deportability.(see footnote 10)
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We requested INS' Law Enforcement Support Center (LESC) to conduct a follow-up search to help determine whether any of the nearly 6,000(see footnote 11) released inmates were potentially deportable criminal aliens. LESC identified 1,899 of these foreign-born inmates as deportable criminal aliens because of their immigration status and the nature of the crime they had committed. Although aliens meeting these criteria are to be screened by INS and put into deportation proceedings as expeditiously as possible following their convictions, there was no indication in INS' or EOIR's databases that these actions occurred while the aliens were in prison or after they were released.(see footnote 12)
Under the law, INS is required to initiate deportation proceedings against aggravated felons while they are in prison and take them into custody upon their release.(see footnote 13) Because the definition of ''aggravated felony'' has been expanded several times since it was first created in 1988, determining whether a criminal alien would have been classified as an aggravated felon at the time of his or her release depends on the definition in effect at the time of conviction in some cases, and the date of commission of the offense in other cases. LESC identified 635 of 1,899 released criminal aliens as having committed crimes that were defined as aggravated felonies at the time that LESC did its analysis—July 1996 through March 1997. However, LESC told us that it was not possible for it to determine whether all of these 635 aliens had committed crimes that were considered aggravated felonies at the time they were convicted because doing so would be too resource intensive. Although LESC was unable to determine the history of all of the 635 aliens who were released, it identified some who had committed crimes that met the aggravated felony definition either at the time of the offense or at the time of their conviction.
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According to INS and EOIR databases, none of the nearly 6,000 aliens had been in deportation proceedings while they were in prison or afterward, had been taken into INS custody, or had been deported. We asked INS to follow up on the post-release criminal activities of the 635 aggravated felons. In a July 11, 1997 letter, INS told us that:
—148 of the 635 have been rearrested since their release,
—31 of the 635 have been rearrested more than once,
—the 148 aliens were charged with committing 184 felonies; and
—114 of the 148 have been convicted.
INS Did Not Complete the IHP for a Majority of Released Criminal Aliens, Resulting in Avoidable Detention Costs Amounting to Millions of Dollars
INS' overall goal for the IHP is to have all deportable criminal aliens released from federal and state prisons with final deportation orders. However, according to IHP and other INS managers, they recognized that, for various reasons, INS would not have sufficient staff to enable INS to complete deportation proceedings for all criminal aliens in all states while they were in prison. Therefore, for fiscal years 1995 and 1996, INS set nationwide operational goals that were lower than INS' desired goal for the IHP. Specifically, for fiscal years 1995 and 1996, respectively, INS' operational goals were that about 30 and 40 percent of the criminal aliens whom it took into custody would have completed deportation proceedings with final deportation orders prior to their release from prison and would be removed.(see footnote 14) The goals were based on IHP managers' estimates of the number of aliens who could be processed through the IHP and removed. It was necessary to produce estimates using this method because INS did not have a formal workload model that would systematically take into account such factors as the projected number of foreign-born inmates, number of prisons that must be visited, number and types of IHP staff expected to be available, length of time required to process cases, and travel time and costs. Further, although district directors make resource allocation decisions for their districts,and are directly responsible for implementing the IHP, top management officials did not allocate the national operational goals among the district directors with IHP responsibilities.
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In each of fiscal years 1995 and 1996, INS completed the IHP for, obtained a final deportation order for, and deported about 32 percent of the released criminal aliens that it took into custody from federal and state prisons. Relative to its operational goals, INS exceeded the fiscal year 1995 goal of 30 percent and fell short of the fiscal year 1996 goal of 40 percent. However, relative to its overall goal of 100 percent, INS did not complete the IHP for and remove approximately two-thirds of the criminal aliens it took into custody upon their release from state and federal prisons in either of these 2 years.
INS' data on the IHP are limited because, as discussed earlier, INS has not identified all individuals who are foreign-born inmates in the BOP and state prison systems and does not maintain a centralized database of these individuals, which would enable it to routinely track the IHP status of all potentially deportable inmates. Therefore, it could not readily determine where individuals were in the IHP process, nor could it readily provide summary information on the number of criminal aliens who had committed aggravated felonies. Consequently, we performed an analysis of data on foreign-born inmates who, according to BOP and the corrections departments of the five states we reviewed, were released from their prison systems during the last 6 months of fiscal year 1995 and, according to INS and EOIR data, were potentially deportable. There were 11,436 released inmates in this population. We found that 40 percent of these aliens left prison with a final deportation order (having completed the IHP), 3 percent left prison without a deportation order but with INS having completed the deportation hearing process, and INS completed the process for 49 percent after they were released from prison. For the remaining 8 percent of cases, there was no indication that hearings were completed either before or after prison release. Appendix IV shows the variation among the states and BOP in the number of foreign-born inmates who completed the hearing process.
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Our analysis showed that INS was able to quickly remove those deportable aliens who had completed the IHP with final deportation orders before they were released from prison—75 percent were removed from the United States within 1 week of their prison release. Of the aliens for whom INS started deportation hearings before prison release and completed them after release, 75 percent were removed in about 5 weeks after their release. However, among the aliens for whom INS started and completed the hearing process after their release from prison, it took about 1 year before 75 percent were removed.(see footnote 15)
Not completing deportation proceedings during incarceration means that INS has to use its limited detention space to house most released criminal aliens rather than using the space to detain other aliens. INS acknowledges that it incurs detention costs for housing these aliens when these costs could be avoided. On the basis of INS' nationwide data for fiscal year 1995, we estimated that INS could have avoided nearly $63 million in detention costs for aliens who were released before INS completed the IHP process.(see footnote 16)
INS Has Not Enhanced the IHP to the Extent Intended
Since 1994, INS has focused its efforts on improving IHP operations in BOP and in seven states—Arizona, California, Florida, Illinois, New Jersey, New York, and Texas—which INS estimates account for 86 percent of the criminal aliens incarcerated in state and federal prisons. INS developed formal enhancement plans for BOP and the seven states. These plans were generally designed to improve efficiency by reducing the number of intake, hearing, and release sites and by increasing IHP staffing. INS also made the removal of criminal aliens an INS management priority.
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We reviewed the status of INS' enhancement efforts in BOP and four states—California, Texas, Florida, and New York. Our work has shown that several factors have slowed INS' efforts to improve the operations of the IHP. First, through the enhancement plans, INS generally sought to reduce the number of state prison facilities that served as intake, hearing, and release sites for foreign-born inmates. However, INS needed the states' approval to implement such a reduction, and approval was not always forthcoming. On the one hand, several states reduced the number of sites they had been operating: for example, Texas went from about 25 release sites to a single facility. On the other hand, some states did not consolidate their IHP sites to the extent INS had wanted. For example, Florida would not agree to reduce the number of release sites to less than 15, citing security concerns as a reason for not further reducing the number of sites.
Second, INS did not achieve its expected staffing levels for the IHP in fiscal years 1995 and 1996 for several reasons:
—Because of budget and funding delays, INS could not hire new agents for the IHP until about 6 months into each of fiscal years 1995 and 1996. In fiscal year 1995, INS did not authorize hiring for newly established IHP positions until February 1995. In fiscal year 1996, according to INS budget staff, Congress did not approve INS' budget until almost 7 months into the year. Because it takes about 2 months to recruit and screen applicants for these positions and about 4 months to train them, many of the newly hired agents who required training were unavailable to work on the IHP in the fiscal year in which their positions were funded.
—INS did not clearly communicate to its field offices whether newly hired immigration agents were to replace or supplement the special agents already assigned to the IHP. Top INS managers who were tasked with overseeing the IHP told us that they expected that newly hired agents would supplement special agents already assigned to the IHP. However, the officials were not able to provide us with documentation that they formally communicated this to the INS districts where immigration agents were assigned. Because INS district directors have authority to adjust programmatic staffing levels, some districts used the new immigration agents as supplements, and other district directors used them as replacements for special agents assigned to the IHP. For example, the Dallas district director increased IHP staffing because he assigned three new immigration agents to supplement the two special agents already processing IHP cases at a BOP facility. In contrast, the New Orleans district director reassigned two special agents who were working on IHP cases and replaced them with five newly hired immigration agents. As a result, although the number of agents assigned to the IHP in the New Orleans district increased, it was two fewer than the number of agents that the lead official expected would be assigned to the IHP.
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—Immigration agent attrition was also a problem. For example, in fiscal year 1996 the average attrition rate for all INS staff was about 11 percent. In comparison, the attrition rate for immigration agents was about 30 percent.(see footnote 17) According to INS, one reason for this relatively high attrition rate was that immigration agents who were hired to staff the IHP left for potentially better paying positions within INS, such as that of special agent. Immigration agents are limited in their benefits and advancement opportunities, but they often possess many of the qualifications required for INS positions with greater pay and advancement potential; thus, they were competitive for filling vacancies in those potentially better paying positions.
Third, although INS has designated the removal of criminal aliens, through the IHP and other programs, as a key management priority, top management officials did not adequately respond to identified problems with the IHP. INS' fiscal year 1996 mid-year and third quarter progress reports, prepared by the IHP staff for top management, stated that INS would fall short of its IHP goal at the current productivity rate. INS criteria indicate that when resources are not adequate to accomplish program objectives, lead officials for the priority areas must either identify necessary changes in the work processes to increase productivity in order to meet the goal, or they must propose modifying the priority objective to match realistic expectations of available resources. However, top management officials did not revise the goals or, alternatively, develop a plan of action to ensure that INS would meet its goal. As discussed earlier, in fiscal year 1996, INS fell short of its IHP operational goal.
Conclusions and Recommendations
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If fully implemented, the IHP would be an effective way to achieve the requirements of the law regarding the timely deportation of eligible criminal aliens. However, the IHP is a resource-intensive program that relies in large part on the cooperation of BOP and the state departments of corrections. To date, some of the states INS has approached about IHP enhancements have not cooperated to the extent that INS has sought. Further, INS has not implemented the IHP in a way that would ensure optimum performance, nor has it systematically determined what resources would be needed to achieve that level of performance.
We believe that INS can take steps that will improve the operations of and outcomes from the IHP. First, INS needs better information about prison inmates—more specifically, which inmates are eligible for the IHP and which of these inmates have been and have not been included in the program. Our work has shown that INS' databases do not contain complete and current information on the IHP status of individual foreign-born inmates at any given point in time. We could not use INS' data to determine which of the released foreign-born inmates had been screened for the IHP, identified as deportable, or placed in the hearing process.
Therefore, we recommend that the Commissioner establish a nationwide data system containing the universe of foreign-born inmates reported to INS by BOP and the state departments of corrections and use this system to track the IHP status of each inmate.
Second, the law requires INS to take certain actions with regard to criminal aliens who have been convicted of aggravated felonies beyond those required for other criminal aliens. As mentioned above, INS is required by law to initiate and, to the extent possible, complete deportation proceedings against aggravated felons while they are in prison and to take them into custody upon their release. Yet our work shows that INS did not fully comply with the required provisions of the law in effect prior to 1996.
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Therefore, we recommend that the Commissioner give priority to aliens serving time for aggravated felonies by establishing controls to ensure that these aliens are identified from among the universe of foreign-born inmates provided by BOP and the states, are placed into deportation proceedings while in prison, and are taken into custody upon their release.
Third, INS has established IHP performance goals without having a systematic basis for determining what performance results it could accomplish with various resource levels. We found that INS has not developed a uniform method for projecting the resources it would need—taking into consideration the level of cooperation from BOP and the states—to achieve its overall goal of completing deportation proceedings for every eligible foreign-born inmate before release or for alternative operational goals.
Therefore, we recommend that the Commissioner (1) develop a workload analysis model to identify the IHP resources needed in any period to achieve overall program goals and the portion of those goals that would be achievable with alternative levels of resources, and (2) use the model to support its IHP funding and staffing requests. Such a model should consider several factors, including the number of foreign-born inmates, number of prisons that must be visited, number and types of IHP staff, length of time to process cases, and travel time and costs.
Fourth, the relatively high attrition rate among immigration agents in fiscal year 1995 contributed to the IHP not being fully staffed and adversely affected INS' attainment of the IHP goals. Although INS officials point out that the immigration agent position has been a stepping-stone to higher level positions within INS, we do not know the specific root causes for the attrition rate.
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Therefore, we recommend that the Commissioner identify the causes of immigration agent attrition and take steps to ensure that staffing is adequate to achieve IHP program goals.
Finally, our work has shown that INS top management did not provide attention commensurate with the priority it assigned to the program. Top management did not formally communicate to the district directors how additional staff should be used in the IHP, did not ensure that specific operational goals were established for each INS district director with IHP responsibilities, and did not respond with specific corrective actions when it became apparent that the program would not achieve its goals for fiscal year 1996.
Therefore, we recommend that INS establish and effectively communicate a clear policy on the role of special agents in the IHP and, using a workload analysis model, set IHP goals for district directors with IHP responsibilities. In addition, if it appears that IHP goals will not be met, INS should document any actions taken to correct the problem.
Agency Comments
On July 11, 1997, we briefed the Executive Associate Commissioner (EAC) for Programs and other officials from INS' Office of Programs, General Counsel, Field Operations, Internal Audit, and Congressional Relations, and they generally concurred with our findings, conclusions, and recommendations. With regard to our recommendation on identifying causes of immigration agent attrition, the EAC for Programs noted that INS believes that immigration agent attrition is no longer as high as it used to be. He added, however, that INS plans to undertake a broad examination of the immigration agent position, including benefits, flexibility, and vacancies.
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Mr. Chairman, this completes my statement. I would be happy to answer your questions at this time.
DEFINITION OF ''ALIEN'' AND ''CRIMINAL ALIEN''
Alien
An alien is any individual who is not a citizen of the United States, regardless of whether the individual's immigration status is legal or illegal. Legal aliens include (1) immigrants who entered the country with valid visas and were later granted resident status by the Immigration and Naturalization Service (INS); and (2) nonimmigrants, such as students, tourists, temporary workers, and business visitors who do not violate the conditions of their visas. Illegal aliens include those who (1) enter the country without visas or passports; (2) do not present themselves for inspection by INS; (3) enter the country using fraudulent documents; and (4) are nonimmigrants who have violated a condition of their visas, such as remaining in the country beyond the period of time authorized.
Criminal Alien
Criminal aliens are noncitizens who have been convicted of a crime committed in this country for which they could be removed from the United States. At the time of our review, most aliens were placed in deportation proceedings to effect their removal. Some aliens were placed in exclusion proceedings because, from a legal standpoint, they were not deemed to have actually entered the country. As an example of such a situation, aliens may arrive at U.S. airports, declare their intent to seek political asylum, and be temporarily allowed into the United States pending a determination of their cases. Because such aliens were not considered to have formally entered the United States, they would be placed in exclusion rather than deportation proceedings if convicted of a deportable offense before their asylum cases were resolved. We use ''deportation proceedings'' or ''deportation hearings'' in this testimony to refer to both deportation and exclusion proceedings. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, deportation and exclusion proceedings are now referred to as removal proceedings.
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SCOPE AND METHODOLOGY
We reviewed IHP plans and activities for BOP and the corrections systems of seven states—Arizona, California, Florida, Illinois, New Jersey, New York, and Texas. We selected these states because, in March 1996, their corrections systems accounted for 86 percent of the total number of foreign-born inmates reported as incarcerated in state institutions. In addition, INS has targeted its additional resources for IHP initiatives to these seven states and BOP.
We focused primarily on fiscal years 1995 and 1996, because during these years Congress provided additional resources for IHP operations, and INS initiated several measures to improve the IHP's effectiveness in deporting criminal aliens. We concentrated on INS—as opposed to EOIR, which makes adjudicative decisions regarding deportability—because INS has the lead role in identifying incarcerated criminal aliens, determining their deportability, and initiating deportation proceedings.
To assess the IHP's performance, we analyzed INS documents and statistics on IHP performance goals, measures, and results to determine (1) how the IHP's performance in deporting incarcerated criminal aliens changed during fiscal years 1995 and 1996 and (2) the extent to which INS was meeting its IHP goals.
In addition, we sought to determine whether INS was screening the entire universe of foreign-born inmates identified by corrections personnel and the extent to which IHP-eligible inmates were placed into deportation proceedings, completed the IHP process, and were removed from the United States upon release from prison. To answer these questions, we obtained data from BOP and correctional institutions in seven states on all of the foreign-born inmates they released from April through September 1995. The data from the April to September 1995 period are considered to be representative of the entire year. We did not determine the completeness of the lists of foreign-born inmates provided either to us or to INS. We asked INS to match these records against information in its Deportable Alien Control System (DACS) to identify those released foreign-born inmates who were taken into INS custody upon their release from prison, detained, or removed from the United States. Although we did not independently assess the reliability of DACS data in this review, we addressed questions to INS about what, if any, quality controls and procedures are used to ensure the reliability of those data elements that we used in this review. The data elements included whether the alien was (1) taken into custody, (2) issued a final deportation order, and (3) removed. INS personnel who operate and manage the DACS database responded that both the accuracy and completeness of these data elements in DACS are good. They stated that supervisors perform random checks on DACS data every time an officer submits a case for review. Further, they reported that all of these data elements are entered into DACS , although, depending on the complexity of the case, there may be some lag time between the occurrence of events and input of data into DACS. We also asked EOIR to match the records against information in its Automated Nationwide System for Immigration Review (ANSIR) to identify those released foreign-born inmates who had been in deportation proceedings. Again, although we did not independently assess the database's reliability, we addressed questions to EOIR about what, if any, quality controls and procedures are used to ensure the reliability of those data elements that we used in this review. The data elements included (1) whether the alien was placed in deportation proceedings and (2) the outcome of the proceedings. EOIR personnel who operate and manage the ANSIR database responded that the accuracy and completeness of the data fields are superior, with error rates being less than 1 percent. They stated that reports to verify data accuracy are run daily, weekly, and monthly, and EOIR staff are held to high performance standards with respect to data integrity.
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From these data matches, we determined for BOP and five states(see footnote 18) how many of the foreign-born inmates were included in and completed the IHP prior to prison release, how many completed deportation proceedings after release, and how many had started but had not completed proceedings at the time we completed our review. For those who were issued a final order of deportation, we were able to determine how many had been removed from the United States by January 1997. We selected the April through September 1995 time frame because we wanted to follow up on how many criminal aliens had completed deportation proceedings and been removed from the United States. We did our followup approximately 16 to 22 months after the aliens' release from prison.
About 6,000 of the approximately 17,300 foreign-born released inmates were not in either INS' or EOIR's database. We sought to determine the extent to which this sizable unmatched group consisted of (1) cases that were screened for inclusion in the IHP and perhaps even processed through the IHP but not entered into the appropriate
databases; (2) foreign-born U.S. citizens who are not eligible for the IHP; or (3) criminal aliens who should have been, but were not, included in the IHP and were released from prison without being taken into INS custody.
We took two steps to determine the composition of the group of nearly 6,000 unmatched cases. First, we selected a random sample of several hundred of these cases from BOP and seven states and asked INS district staff to review the original case files for each of these individuals. Our purpose was to determine whether there was information in the files that had not been entered in DACS. Second, we asked LESC—an INS unit that conducts database searches for local law enforcement agencies to determine whether arrested individuals are criminal aliens—to match the nearly 6,000 records with information contained in 6 INS databases,(see footnote 19) the FBI's National Crime Information Center, and state criminal history databases. The results enabled us to determine (1) how many individuals were U.S. citizens and, therefore, ineligible for the IHP; (2) how many were deportable criminal aliens who were released from prisons; and (3) whether any identified criminal aliens had been convicted of committing an aggravated felony.
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To determine what actions INS took to improve the operations and effectiveness of the IHP, we reviewed formal plans approved by the INS Commissioner to streamline IHP operations in each of the seven key states as well as in BOP. We examined documents pertaining to the roles of IHP staff and the allocation of staff resources to the IHP. Additionally, we reviewed INS planning documents pertaining to the removal of criminal aliens and the IHP's annual goals.
In addition, we interviewed key officials at INS and BOP headquarters and in corrections departments and INS field locations in California, Florida, New York, and Texas. We selected these four states for site visits because they represented four of the five states where IHP enhancement efforts began, and because they had the largest number of foreign-born inmates among all state correctional facilities. Resource constraints precluded our visiting all seven states. We interviewed INS and BOP officials at BOP's Oakdale, LA, and La Tuna, NM, federal correctional institutions and INS' El Paso, TX, district office. We chose the Oakdale facility because it was the first IHP site in a federal prison and because it was one of two sites staffed full-time by INS personnel and immigration judges. We chose the La Tuna facility because, in contrast to Oakdale, the facility has neither full-time INS staff nor immigration judges at the facility.
To determine what factors have influenced the IHP's performance and INS' implementation of IHP enhancement initiatives, we interviewed officials with INS, EOIR, and BOP; and officials in corrections departments in California, Florida, New York, and Texas. We discussed the overall status of IHP enhancement plans, including implementation barriers, with INS' General Counsel and district counsel officials and the national coordinators for the BOP and state IHPs. We also reviewed periodic reports and other documentation on the IHP's performance that INS and BOP officials provided to us.
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Table II.1 shows the INS district that we visited to review BOP and state IHP activities and the districts' regional office jurisdiction.
Table II.1: INS District Offices and Regions GAO Visited Reviewing BOP and State IHP
In each of the INS districts listed in the table, we interviewed key officials involved in IHP processing to document IHP roles and procedures, changes brought about by IHP enhancement initiatives, obstacles to progress toward a more efficient IHP, and the program's overall status. Our INS contacts included district directors, assistant district directors for investigations, assistant district directors for detention and deportation, IHP directors and coordinators, and district counsel staff. At EOIR, we interviewed immigration judges who conduct IHP hearings and court administrators who schedule deportation proceedings. We also interviewed BOP and state corrections system authorities to get their perspectives on the IHP and efforts to improve the program's performance.
INSERT OFFSET RING FOLIOS 1 TO 3 HERE
TIME FROM RELEASE TO DEPORTATION FOR ALIENS RELEASED FROM BOP AND 5 STATES' PRISONS 1 DURING THE LAST HALF OF FISCAL YEAR 1995 WITH FINAL DEPORTATION ORDERS
GAO ESTIMATE OF AVOIDABLE DETENTION COSTS
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Because most criminal aliens released from state and federal prisons in fiscal year 1995 had not completed the IHP, INS needed to detain them until their deportation hearings could be completed. This placed unnecessary demands on INS' limited detention space, and, as shown below, cost INS nearly $63 million that could have been avoided.
Table VI.1 INS' Detention Costs for Criminal Aliens Who Did Not Complete the IHP in Fiscal Year 1995
Our sample of 11,436 potentially deportable criminal aliens released from BOP and five states' prisons during the second half of fiscal year 1995 included 6,518 inmates who were released to INS without INS having completed their hearing process while they were in prison. Nationwide, INS reported that in all of 1995, a total of 20,118 such inmates were released into itsstody. Of the 6,518 released inmates that GAO studied, 4,223 inmates had received deportation orders and were deported by January of 1997. We were able to determine for 4,223 of these released inmates both the average number of days detained by INS and whether the hearing process started before or after prison release. These Of the 4,223 inmates, 87 percent started deportation proceedings in prison, and they were held for an average of 41 days. The remaining 13 percent started deportation proceedings after prison release and were held for an average of 206 days. For the remaining 2,295 inmates in our study—those for whom there was no evidence that the hearing process had been completed—we assumed that the timing of their deportation proceedings and the average number of days they were detained were similar. This thus provides the estimate that for 87 percent, or 17,498, of the 20,118 released inmates, INS would have begun their hearing process before release, and for the remaining 2,620 released inmates, INS would have begun their hearing process after release.
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To determine the avoidable detention cost, we subtracted 15 days from each of the observed detention times because this was the average detention time for criminal aliens who completed the IHP with final deportation orders. According to INS, the average daily cost to detain a single alien was $65.75 in fiscal year 1995.
At least some of the savings in detention costs that INS could realize by processing more criminal aliens through the IHP would be offset by any additional funding that might be required to provide additional resources for the IHP.
INSERT OFFSET RING FOLIOS 4 TO 5 HERE
Mr. SMITH. We welcome two other members of the subcommittee who have joined us. Let me say to them I hope they will be able to stay a few minutes because after we finish asking Mr. Rabkin some questions, we are going to take a quick break and consider some bills very briefly; and we appreciate the presence of a working quorum.
Mr. Rabkin, we appreciate the job you have done, which seems to be very thorough and very needed.
Overall, what percentage of all criminal aliens are not being deported as they should be under this program?
Mr. RABKIN. We know the percentage that are being included in the IHP, and that is only 32 percent. We looked for a smaller sample. In BOP and those States where it is most concentrated, the INS and the EOIR's results were a little bit better. It was about 40 percent. So we know that, for those that are not even involved in the process, that they are not being deported upon release.
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I am not sure I can answer the question as you have asked.
Mr. SMITH. Let me ask a different question and maybe get at the same answer. What percentage or what number of the criminal aliens is the INS failing to identify?
Mr. RABKIN. Well, we know from the sample that they are failing to include in the program about a third of all those criminal aliens that were identified to them.
The process starts, really, when the prison people find out that an inmate is foreign born and, therefore, is potentially deportable. Then they tell INS; and INS is supposed to, for those people, start the process. In that case, the ones INS knew about, only about two-thirds of them were included in the process.
Mr. SMITH. So the INS is not identifying about a third of the individuals they should; and only about a third of the total criminal aliens are, in fact, being subjected to the IHP process.
Mr. RABKIN. That is correct.
Mr. SMITH. What laws are being violated when the INS releases aggravated felons into the community without deporting them?
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Mr. RABKIN. The laws have changed over time; but, as it stands right now, the Immigration and Nationality Act, as amended, is being violated. The Act requires INS to take all aggravated felons into custody.
When we did our work and when we had INS do some analysis of the criminals that were being released in fiscal year 1995, the law was a little different. So I can't say that all 635 of the aggravated felons should have been taken into custody by INS, because you have to apply the law that was in effect at that point in time. But certainly some of them should have and INS didn't.
Mr. SMITH. You said in your more expanded testimony that the INS management has not focused on the IHP, has not given good guidance, and has not set goals and followed up to make sure that they were accomplished. Why do you think that this program appears to have such a low priority at INS? I know there is more to it than that, but why is it not working? Why does it have the appearance of having a low priority?
Mr. RABKIN. It is a very resource-intensive program; and it requires the cooperation, as you mentioned, of the States and the Federal Bureau of Prisons. Also in the past, INS had special agents assigned to do the administrative work; and a lot of the work was file reviews; and the special agents had other responsibilities. I think, as you suggested, Mr. Chairman, there are a lot of interrelated questions to that; and perhaps INS would be better able to answer that.
Mr. SMITH. We will ask them shortly.
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I noticed that in your testimony, at least the full text, you had five very good recommendations for the INS. Would you just summarize those very briefly, please?
Mr. RABKIN. I would be glad to.
Our first recommendation was that INS develop a better data system, a national data system to keep track of all the criminal aliens identified to them and make sure that they are in the process.
Secondly, because, as you mentioned, the laws are specific about aggravated felons, we are recommending to the commissioner that she give priority to aggravated felons in terms of identifying them, placing them into proceedings, and taking them into custody as the law requires. If INS doesn't have the resources to do everybody, then they should certainly do the aggravated felons first.
Third, we are recommending that INS develop a work-load analysis model to better project what resources they really need to achieve their overall goal of 100 percent participation in the program—what kind of staff, what kind of travel resources, et cetera—given the kinds of conditions they have to work under and given the number of inmates that they expect to be identified to them at any given point in time. It would also help them identify what goal they can achieve, given the resources that they have available to devote to the program.
Our fourth recommendation was to look at the causes of the attrition that was occurring with the immigration agents. We identified that they were turning over at about three times the rate that the rest of the people in INS were turning over. We understand that it has gotten better more recently, but we think that position needs to be looked at. INS should also clarify the role of the special agent and whether they should be working on the program and whether these new agents should be supplementing or replacing the special agents.
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Then, finally, we made some recommendations about the need for better management and the kind of actions that should be taken, documenting these actions, when program managers see that the goals aren't going to be met.
The IHP is a priority within INS. Program managers are supposed to be either lowering the goals or taking more aggressive action to meet them. We noticed that that wasn't happening in 1996, and we are making a recommendation that they document that.
Mr. CHAIRMAN. Mr. Rabkin, is it fair to say, given your findings, that at this point the INS is doing an inadequate job, violating laws and endangering our communities?
Mr. RABKIN. From what we saw, I think INS is not in a position to completely comply with the laws and, as a result, there have been aggravated felons released into the communities that INS should have taken into custody.
Mr. SMITH. Thank you, Mr. Rabkin.
The gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
I wanted to pick up on the third recommendation that Mr. Rabkin made as a starting point which, as I understand it, would be to have the INS identify the level of personnel and resources that would be needed to fully and competently implement the IHP plan, is that right?
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Mr. RABKIN. That is correct.
Mr. WATT. Were you able to make any general assessment of that level of resources or was GAO able to make an independent assessment of the level of resources that would be needed?
Mr. RABKIN. No, sir, we didn't try.
But, in our opinion, the model that would be developed is not that complicated. There are some assumptions you would have to have in terms of the number of foreign-born inmates that would be identified by the prison systems to INS; but then INS would have to take into consideration where the people were, where the prisons were. If INS did not have people in these prisons to interview them and to handle the process and if the EOIR didn't have judges in the prisons, they would have to figure out how long it would take to get back and forth, factor in that time, the percentage of time an immigration agent or special agent would have to devote to the program.
Mr. WATT. Is that the kind of study that the GAO could do for the INS or——
Mr. RABKIN. There are some assumptions that INS would have to make on its own. It has to make some internal decisions about priorities and the kind of work special agents and immigration agents should be doing, and so I think it is more appropriate for them to do.
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Mr. WATT. I take it that if the cost of that came to less than $63 million, it would be cost efficient to go ahead and implement whatever the INS came up with—it would be more cost efficient. $63 million is the figure that you used in additional detention costs that INS is incurring as a result of not fully implementing or competently implementing the plan.
Mr. RABKIN. For fiscal year 1995, we made some assumptions about the size of the population and the amount of days that they would have had to stay in detention. Based on the analysis that we did of data from the Bureau of Prisons and in five States, we projected that for the whole fiscal year to the whole country.
Mr. WATT. My question is, if the figure for competently and fully implementing whatever resources are necessary for that was less than $63 million, it would be cost-effective for us to do it, right?
Mr. RABKIN. It probably would. If it were more than that, then you would have to somehow quantify the other benefits that the Chairman mentioned in his opening statement.
Mr. WATT. In the analysis that you did, did it appear to you that the cost of fully and competently implementing it would be less than $63 million a year?
Mr. RABKIN. As I said, Mr. Watt, we didn't look at what it would cost to do it. INS is focusing on those areas where it is probably the easiest—they are focusing on the States with the largest criminal alien population, and these States represent about 86 percent of the total criminal alien population in State prisons nationwide. The other 43 States and the District and the Territories have 14 percent of the population. That is the kind of difficulties they have. But I don't know what the cost would be.
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Ms. REZMOVIC. I would just like to add that INS is very familiar with work-load analysis models. We didn't look at it in this particular study, but they have one for the inspections area. We don't know what the cost is. I would be very surprised if it were that high.
Mr. WATT. I understand that while the study that GAO performed commenced in January of 1996 and ran through, actually, right up to very recently, that the statistics you looked at were actually for the year 1995, is that correct?
Mr. RABKIN. We looked at data from fiscal years 1995 and 1996, but our detailed analysis was on inmates released in fiscal 1995. That is correct.
Mr. WATT. So the statistics would be based on 1995.
Mr. RABKIN. The last 6 months of fiscal year 1995.
Mr. WATT. What impact, if any, did you find that the government shutdown at the end of 1995 had on the performance of the IHP?
Mr. RABKIN. It wasn't so much the shutdown itself, it was the budget impasse that was going on at the time that caused the shutdown. But the Justice Department——
Mr. WATT. Why don't you put both of those two things together—the fact that the budget was delayed by 5 or 6 months as a result of whatever bickering was going on between Republicans and Democrats in the House and Senate and the administration and that the government got shut down? What impact, if any, did you find that that had on the effectiveness of this program during this period of time?
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Mr. RABKIN. It delayed the INS's budget being enacted and INS being able to hire more immigration agents in fiscal year 1996, get them into training and get them out into the prisons. So there was a delay in achieving the staffing levels that they had anticipated for fiscal 1996.
Mr. WATT. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
The gentlemen from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
Mr. Chairman, if I could inquire, I understand Mr. Cannon may need to leave. If we need to move to the markup, I will be glad to defer my questions until a later time.
Mr. SMITH. Let me ask Mr. Cannon if he can wait 5 minutes.
Why don't you proceed with your questions and then we will go to the markup.
Mr. PEASE. I apologize for my tardiness to members of the committee and the panel. Since I didn't hear from the others, I just had a couple questions for Mr. Rabkin.
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Mr. WATT. He is the only one that made a statement.
Mr. PEASE. You recommended a number of things, and I wanted to focus on I think it was your fourth recommendation. That was you recommended an analysis of the causes of attrition among the agents that were assigned to this program.
Did you, in preparing to make that recommendation for a further analysis, do any analysis at all—I mean, do you have some indication of why you think there is such attrition now? For instance, is there a pay differential? Is there a morale problem? Is there a perceived lack of support for the program? Do you have any feel at this point?
Mr. RABKIN. There are a couple of probable causes that we couldn't get in and confirm. One is that the new agents, the immigration agents, are hired at a lower level; and their career ladder is a little lower than special agents who start at a higher level and can go even higher with promotions.
But both groups get the same basic training, so that they have—as the immigration agents move through their career ladder, they have incentives to become special agents. They have some of the training that is needed for that. So I think that is one of the causes.
Also, it was a time, when we were looking, of great growth in INS. There were a lot of opportunities. So that may have also contributed to it.
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So what we think really needs to be looked at is the position description for these agents and the kind of training—do they really need all that training? Maybe it is a position that, if they didn't do it the way they are doing it, there would be less turnover.
Mr. PEASE. Well, do you anticipate that the problem that you identified within this program will continue because of the way the system is set up? I mean, if the incentives are to move over and become a special agent, I would assume most people are going to try and do that; and you are going to have a continuing problem.
Mr. RABKIN. Well, to the extent there are vacancies in the special agent position, that probably would happen; and that is the sort of thing that we have suggested that INS take a look at. We didn't get into the kind of depth to answer that question.
Mr. PEASE. Okay. That is all I have, Mr. Chairman. Thank you.
Mr. SMITH. You are welcome. Thank you, Mr. Pease.
Mr. Rabkin, thank you. We appreciate, again, your contribution to today's hearing.
Before the next panel comes to the table, we are going to need to take a break—and I apologize for the interruption in the hearing—to go to several bills that need to be marked up. I hope this will go very quickly. We will proceed with that, and I thank all members who are here for staying.
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[Recess.]
Mr. SMITH. Could our second panel come forward? I will introduce you as you do come forward: Mr. Paul Virtue, Executive Associate Commissioner, Programs, at the INS; accompanied by Lydia St. John-Mellado, IHP Coordinator, Immigration and Naturalization Service; Mr. Michael J. Creppy, Chief Immigration Judge, Executive Office for Immigration Review; accompanied by Michael C. McGoings, Assistant Chief Immigration Judge.
We welcome you and look forward to your testimony. All of you have been here many times before.
Mr. SMITH. Mr. Virtue, we will begin with you.
STATEMENTS OF PAUL VIRTUE, EXECUTIVE ASSOCIATE COMMISSIONER, PROGRAMS
Mr. VIRTUE. Thank you, Mr. Chairman, Mr. Watt, members of the subcommittee. I am pleased to have this opportunity to testify on the Institutional Hearing Program, known as the IHP.
This administration has made the identification and removal of criminal aliens a high priority and is moving on several fronts to accomplish this goal.
We have negotiated with State governments to work effectively and efficiently in State correctional facilities. We revised the matter by which we assign and use our investigative resources. We have asked and received from Congress additional personnel and resources to expand the IHP, and we have instituted a national detention removal plan to expedite the removal of criminal and other deportable aliens.
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Although the IHP was first enacted in 1986, it proceeded as a small project until INS began to explore the enhancements of the program in 1994. Before that time, INS efforts to identify criminal aliens before release from State or Federal prison was haphazard at best. Criminal aliens who were identified either were released onto the streets or detained in an INS facility, thereby using valuable detention space.
In March of 1995, INS testified before this subcommittee on the identification and removal of criminal aliens. An important element of that testimony was the Service's efforts at that time to implement enhanced IHPs in States with large numbers of criminal aliens in the prison population.
At that time, INS had just begun to recruit, hire and train new investigative personnel that had been approved in the fiscal 1995 budget. The funds were used to hire personnel to enhance the IHP in the five States identified in 1990 as having the highest population of incarcerated foreign-born nationals. Those States are California, Texas, New York, Florida and Illinois.
Although staff funding and statutes are now in place, potential IHP achievements are not boundless. A critical aspect of our ability to maximize the number of aliens processed while serving time is the cooperation of the State to consolidate the foreign-born population for purposes of identification, hearings and release from custody. Without that cooperation, even the resource enhancements would be inadequate to reach our goal.
I am happy to report today that we have made significant progress in the IHP since March of 1995. The personnel resources provided by Congress in fiscal years 1995 and 1996 have been hired, trained and deployed. With these resources, we have enhanced the IHPs in California, Texas, New York, Florida, Illinois, Arizona, New Jersey and New Mexico. In the Federal IHP, we have reached agreement on 15 sites for processing and hearings for newly sentenced foreign-born inmates.
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In fiscal 1996, INS removed 36,933 criminal aliens; 10,323 had completed the IHP process. During the first 2 quarters of fiscal year 1997, we have seen a 37 percent increase over the same period of last year. At the same time that removals have increased, the infrastructure for further increases in the removal rate has been established at both the Federal and State level.
I would like to comment briefly on the issues raised in the GAO's analysis of IHP. GAO concludes that the IHP is not processing all removable criminal aliens.
INS agrees that a goal of the IHP is to reduce the average length of stay at INS detention by completing the process for removal prior to the alien's release from custody. In fact, IHP proceedings had commenced for 87 percent of that released population. The GAO did not review the reasons why the process was not completed before release nor the reasons for the length of stay in INS detention after release—for example, delays in obtaining travel documents, continuances for counsel or to prepare applications or appeals, many of which are beyond the control of INS.
The GAO reviewed the programs in California, Texas, New York, Florida and Arizona. However, the resource enhancement for Arizona was not received until late 1996; and the consolidated intake and release site in Huntsville, Texas, only opened in October of 1996 after the GAO study period.
I notice the light, Mr. Chairman. I think we were a little short of 5 minutes there. I will go as quickly as I can. I do have a few points I would like to make, but I will go quickly.
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Mr. SMITH. Why don't you make those points, if you will, briefly.
Mr. VIRTUE. Okay.
It is important to note, in terms of GAO process, that they looked at the last 5—the last 6 months of 1995 in doing their detailed analysis. We were only beginning to bring on resources for fiscal year 1995 at that point; and even the 1996 numbers, because of the budget impasse and the need to also hire, train and recruit Border Patrol and inspectors, caused a delay in bringing on those resources. So we think GAO's study provides important baseline data, and I think we need to look at that and measure improvements against that data.
But we would not have expected a dramatic increase in the percentage of people coming out of the process with a final order of removal during 1995 and 1996 because our main focus was staffing the intake centers; and the people who were being released, particularly in 1995, when GAO did its detailed analysis, had come into the system, in some cases, many years prior to that release date. So while certainly it is our goal to increase and hopefully achieve a 100 percent identification rate and processing rate for people coming out, we wouldn't have expected those dramatic increases to be seen in fiscal 1995 and 1996. We think we are well on our way and are very hopeful with the beginning of 1997 numbers.
Mr. SMITH. Thank you, Mr. Virtue.
[The prepared statement of Mr. Virtue follows:]
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PREPARED STATEMENT OF PAUL VIRTUE, EXECUTIVE ASSOCIATE COMMISSIONER, PROGRAMS
Introduction
On behalf of the Immigration and Naturalization Service (INS), I am pleased to have this opportunity to testify on the Institutional Hearing Program (IHP); a program which facilitates the removal of criminal aliens from the United States. The growing number of criminal aliens is of grave concern to the American public. This Administration has made the identification and removal of criminal aliens a high priority and is moving on several fronts to accomplish this priority. We have negotiated with state governments to work effectively and efficiently in state correctional facilities. We have revised the manner by which we assign and use our investigative personnel. We have asked and received from Congress additional personnel and resources to expand the IHP. We have instituted a national detention and removal plan to expedite the removal of criminal and other deportable aliens.
The IHP is a cooperative effort among the INS, the Executive Office for Immigration Review (EOIR), and federal and state correctional agencies to process convicted criminal aliens for removal while they are serving their prison sentences. First established under the Immigration Reform and Control Act of 1986, the goal of the IHP is to complete the administrative determination of deportability prior to completion of the alien's sentence, enabling more effective use of INS detention space and significantly reducing the threat to public safety by effecting immediate deportation upon completion of the sentence.
For many years, the Institutional Hearing Program operated on an ad hoc basis. INS worked informally with corrections agencies and EOIR to set up periodic hearings in institutions with large criminal alien populations. Congress recognized the efficiency of this procedure, and included a provision in the Immigration Reform and Control Act of 1986 requiring that deportation proceedings for deportable criminal aliens begin as soon as possible after their conviction. The Anti–Drug Abuse Act of 1988 defined certain crimes as ''aggravated felonies'', and required that the ''Attorney General provide for the initiation and to the extent possible, the completion of deportation proceedings'' for any alien convicted of an aggravated felony. INS instituted programs within current resources to implement these Congressional mandates. We soon recognized, however, that the IHP process is labor intensive, and that the sheer number of criminal aliens in state and federal prisons required additional resources. In 1993, INS began to develop cost estimates of the resources that would be needed for fully effective IHP programs, and those estimates were included in the President's fiscal year 1995 Budget.
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Congress also recognized that for the IHP to be truly effective, INS needed the full cooperation of participating states. Thus, a provision was included in the Immigration Act of 1990 which required states to establish a plan to provide INS with notice of conviction of aliens who violated state criminal laws. Further, the Violent Crime Control and Law Enforcement Act of 1994 authorized reimbursement to State and local governments for the costs associated with incarceration of undocumented criminal aliens, and funds were made available in appropriations for this purpose.
In short, Congress recognized that both the Federal Government and the states have roles to play in the IHP process, and resources were made available to ensure an active partnership between both players.
In March 1995, INS testified before the Immigration and Claims Subcommittee on the identification and removal of criminal aliens. An important element of that testimony was the Service's efforts at that time to implement enhanced IHPs in states with large numbers of criminal aliens in their prison populations. At that time INS had just begun to recruit, hire, and train new investigative personnel that had been approved in the fiscal year 1995 budget. The funds were used to hire personnel to enhance the IHP in the five states identified in 1990 as having the highest populations of incarcerated foreign-born nationals: California, Texas, New York, Florida, and Illinois.
I am happy to report today that we have made significant progress in the IHP since March of 1995. The personnel resources provided by Congress in fiscal years 1995 and 1996 have been hired, trained, and deployed. With these resources, we have implemented enhanced IHPs in the States of California, Texas, New York, Florida, Illinois, Arizona, New Jersey, and New Mexico. In the Federal IHP we have reached agreement on 15 sites where newly-sentenced foreign-born inmates will be processed by INS staff and where hearings will be conducted by EOIR.
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In fiscal year 1996, INS removed 36,933 criminal aliens, 10,323 of whom had completed the IHP process. IHP removals for the first two quarters of FY 1997 showed a 37% increase over the same period last year. IHP-related workload measures also saw substantial increases: the number of interviews rose by 25%; the number of charging documents prepared was up 26%; and filings with EOIR increased by 61%. The IHP removal numbers show steady improvement with removals gradually increasing from an estimated 5,000 in fiscal year 1993 to 9,557 in fiscal year 1995 and 10,323 in fiscal year 1996. At the same time that removals have increased, the infrastructure for further increases in the removal rate in coming years has been established at both the state and federal level. In fiscal year 96, funds were appropriated to enhance the program in Arizona, New Jersey, and the Federal BOP. Additionally, funding was provided to handle the actual removal of criminal aliens from state and Federal IHPs upon sentence completion.
While the fiscal year 1995 funding increases were focused mainly on identification and processing of inmates at intake, fiscal year 1996 resources are geared towards the removal aspect of the IHP. We also now have at our disposal new tools made available in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) such as administrative removal and reinstatement of prior deportation orders. Although staff, funding and statutes are now in place, potential IHP achievements are not boundless. A critical aspect of our ability to maximize the number of aliens processed while serving time is the cooperation of the state to consolidate the foreign-born population for purposes of identification, hearings, and release. Without that cooperation, even the resource enhancements will be inadequate to reach our goal.
As of April 1, 1997, approximately 78,200 foreign-born nationals were incarcerated in state correctional facilities. Of these, over 80 percent are incarcerated in seven states: California, Texas, New York, Florida, New Jersey, Arizona, and Illinois.
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INS estimates that 80 percent or 62,560 of the foreign-born inmates in state institutions are subject to deportation. The remaining twenty percent have naturalized or acquired citizenship through their United States citizen parent(s), or their convictions are for crimes that do not subject them to deportation.
As of May 1997, there were 24,470 sentenced non-citizen inmates in Federal institutions, or 23.9 % of the BOP's population. Although the foreign-born population is much higher (more than 34,000 as of April 30, 1997) this is not a true indicator of IHP workload since it includes, for example, unsentenced U.S. Marshals prisoners and INS Cuban detainees not subject to removal.
Hearings are currently being conducted in 61 state correctional facilities, 11 Bureau of Prisons facilities, and 4 county jails.
Based on a January 1997 Bureau of Justice Statistics Bulletin, at midyear 1996, some 591,400 offenders were being held in local jails. The INS estimates that 8 percent (47,300) of that population is foreign-born. Because their sentences are so short, it is difficult to complete hearings before release for the jail population in a true ''IHP.'' Nonetheless, INS is currently identifying and processing for removal aliens incarcerated in 18 local jails.
Accomplishments in the IHP
The INS and EOIR have been working with the Federal Bureau of Prisons and the corrections authorities in the States of California, Texas, New York, Florida, New Jersey, Arizona, Illinois, Pennsylvania and New Mexico to enhance the capacity of the IHP to identify and process deportable criminal aliens. Now I would like to give you examples of several enhanced IHPs where our increased efforts have resulted in real gains in productivity.
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New York
New York was the first state in which we enhanced the capacity of IHP. On April 4, 1994, INS, EOIR, and the New York State Department of Corrections (NYDOCS), reduced the number of hearing sites from 7 to 3; established those three sites as exclusive sites for intake and release; INS and EOIR committed permanent staff to two of the intake sites; and modified the hearing schedule to provide for daily hearings at the three sites.
Of the IHP resources provided in fiscal year 1995 and 1996, 31 positions were deployed to the New York state system. Since the addition of the resource enhancements our productivity has improved dramatically. For the first six months of fiscal year 1997 approximately 1,600 potentially removable criminal aliens were released to INS custody: of those 35 percent (587) completed the IHP process.
California
On December 19, 1994, INS approved the California State Enhanced IHP Plan. The plan identified 11 intake/reception sites, and 3 hearing/release sites.
California has the largest population of foreign-born criminal aliens serving sentences in its prison system, more than 29,000. In response, INS has devoted a significant number of staff to the program. During the first six months of fiscal year 1997, INS agents interviewed more than 10,000 foreign-born nationals in the California IHP, and prepared charging documents on about 8,500 (not all foreign-born inmates interviewed are deportable). Unlike most of the other IHPs, cases in California are heard 30–40 days prior to their release from prison. Of the 6,200 inmates released to INS custody during the first six months of this fiscal year, approximately 2,500 (40%) had completed the IHP. In fiscal year 1996, 11,777 criminal aliens were released to INS custody by the California Department of Corrections after completion of their state sentence. Of the 11,777 criminal aliens released to INS custody, 40 percent (4,704) had completed the IHP process. We recognize the need for improvements in some areas and we are working within INS and with the State to further improve the process.
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Texas
On March 21, 1995, INS approved the Texas State Enhanced IHP Plan. The close working relationship that INS developed with the Texas Criminal Justice System (TDCJ) is illustrated by TDCJ's commitment to build a multi-million dollar facility at Huntsville which is leased by INS for inmate processing and hearings. Multiple intake, hearing, and release sites for foreign-born inmates in the State of Texas were consolidated into this single site. Permanent INS and EOIR staff are assigned to this facility. An Immigration Judge conducts hearings on a daily basis. This ensures that foreign-born inmates are interviewed at intake, and/or release, and placed in removal proceedings, if applicable.
The effectiveness of the single intake and release site in aiding the identification and processing of criminal aliens is reflected in the dramatic increase in funds awarded to Texas under the State Criminal Alien Assistance Program (SCAAP).(see footnote 20) SCAAP is a federal program that reimburses states for the incarceration of undocumented criminal aliens [INA Section 241(I)]. Prior to opening the single intake and release site, the State of Texas received $16 million in SCAAP funds. One year after the single intake and release site concept was initiated, the State of Texas, with INS assistance, was able to identify significantly more aliens in their population resulting in an award of $51.9 million(see footnote 21) in SCAAP funds in FY 1996.
In fiscal year 1996, INS agents interviewed 2,861 foreign-born inmates of which 2,020 were identified by INS as aliens amenable to removal proceedings. INS agents also prepared 1,923 charging documents (a 352 percent increase over fiscal year 1995) and 1,274 were filed with EOIR (an 81 percent increase over FY 1995). EOIR issued 585 removal orders (a 38 percent increase over fiscal year 1995). Approximately 1,500 potentially removable criminal aliens were released to INS custody, of whom 46 percent (684) had completed the IHP process (a 288 percent increase over fiscal year 1995). Those who did not complete the IHP process were transferred to INS detention facilities so removal proceedings could commence or continue.
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During the first six months of fiscal year 1997, INS agents interviewed 2,923 foreign-born inmates (an 83 percent increase over the same period in FY 1996) of whom 2,372 were identified by INS as aliens amenable to removal proceedings. In addition, INS agents prepared 1,069 charging documents (a 170 percent increase over the same period in fiscal year 1996) and 2,061 were filed with EOIR (a 485 percent increase over the same period in fiscal year 1996). EOIR issued 968 removal orders (a 319 percent increase over the same period FY 96.). Approximately 900 potentially removable criminal aliens were released to INS custody during the first 6 months of fiscal year 1997, of whom 56 percent (505) had completed the IHP process (a 150 percent increase over the same period in fiscal year 1996), the remaining criminal aliens who did not complete the IHP process were transferred to INS detention facilities so removal proceedings could commence or continue.
Federal
In fiscal year 95 and fiscal year 96, INS was provided resources for enhancement of the Federal IHP. Last year, INS, the BOP, and EOIR concluded a formal agreement which lays out a comprehensive and nationwide plan to identify, process and conduct hearings on deportable inmates in federal custody. INS and BOP have agreed on 15 sites where newly sentenced non–United States citizen inmates will be interviewed by INS staff. These 15 sites will also serve as hearing sites for EOIR. We have made use of video conferencing equipment at the more remote sites to reduce travel associated with the hearings, and to address security and efficiency concerns. INS and BOP have agreed that 22 of more than 90 institutions will serve as release sites for the removal population.
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Implementation of the Federal IHP enhancements are ongoing. In developing the Federal IHP enhancement plan, INS, BOP, and EOIR recognized that full implementation would require several years because of the complexity of the initiative, and the number of INS districts, EOIR courts and BOP institutions involved. The 1996 agreement between the three agencies stated that implementation would proceed on a site-by-site basis, and would take 2–3 years. We are now well into Phase II of the two-phased plan.
In fiscal year 1996, approximately 11,650 non–United States citizen inmates were released by BOP after completion of their Federal sentence. Of those, 2,652 received orders of removal through the IHP. For the first six months of FY 1997, just over 2,000 criminal aliens who had received orders through the Federal IHP had been removed (a 67 percent increase over the same period in fiscal year 1996). Those that did not complete the IHP process were transferred to INS detention facilities so removal proceedings could commence or continue.
Implementation of Administrative Removal
The Violent Crime Control and Law Enforcement Act of 1994 authorized specially designated INS officers to order the deportation of criminal aliens in lieu of a hearing before an immigration judge. These provisions only apply in the cases of aliens who are convicted of aggravated felonies, are not lawful permanent resident aliens, and are not eligible for any relief from deportation under the Immigration and Nationality Act (INA). This program streamlines the deportation process for aggravated felons who are not eligible to apply for relief from deportation. In fiscal year 1996, 500 aggravated felons received Final Administrative Orders of Deportation and were removed from the United States. Use of this provision has increased with implementation of IIRIRA, which expanded the definition of aggravated felon. During the first 7 months of fiscal year 97, 1,268 aggravated felons were issued or received Final Administrative Orders of Deportation/Removal and were removed from the United States.
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An innovation that developed as an adjunct to the federal IHP, which has now been codified under IIRIRA, is the Stipulated Removal Program for Criminal Reentry Violations. This program was first developed in the Southern Judicial District of California in San Diego. This stipulated removal program allows for the removal of aliens who are being charged by the U.S. Attorney with felony criminal violations of reentry or attempted reentry after deportation. Smaller programs are currently being implemented in San Antonio, Texas; New York, New York; El Paso, Texas; and Arlington, Virginia. As part of a plea agreement, the alien pleads guilty to the criminal charge and stipulates to deportability in writing before an immigration judge, a U.S. Magistrate, or a U.S. District Court Judge. The alien subsequently reappears before the U.S. District Court Judge for sentencing on his criminal conviction. In fiscal year 1996, 607 stipulated orders were issued in San Diego.
Reinstatement of Prior Deportation/Exclusion Orders
Another provision authorized under IIRIRA is reinstatement of a prior deportation order in order to expedite the removal process. When an alien is determined to have illegally reentered the United States after having been removed or having departed voluntarily under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed. The alien may be removed at any time after his/her reentry. For the month of April 1997, the first month of data after this provision was implemented, 233 aliens with reinstated orders were removed.
GAO Statement of Results
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Finally, I would like to comment briefly on the preliminary results of GAO's analysis of the IHP. In their study, GAO reviewed INS activities and analyzed data on the application of the IHP to 17,320 foreign-born persons who were released from the Federal BOP and prisons in five states during the last six months of fiscal year 1995. Of that population, 11,436 released inmates were identified by reviewing INS and EOIR data as being potentially deportable. Forty-three percent of the 11,436 had completed the IHP process before being released.
GAO did not include the fact that the vast majority (approximately 87 %) of the others had begun the IHP process before release.
The GAO also analyzed INS' nationwide data for fiscal year 1995, finding that 18,106 alien inmates released from prison without a final removal order during that year were detained by INS at an estimated cost of $56,490,000 more than would have been the case had the order been issued before their release. GAO characterizes the $56 million as ''avoidable detention cost.''
The INS agrees that a goal of the IHP is to reduce the average length of stay in INS detention by completing the processing for removal prior to the alien's release from corrective custody. However, since we are able to use any detention spaces we have available, GAO's projected ''avoidable detention costs'' do not represent actual fiscal savings. Moreover, GAO's analysis does not support attributing these detention costs to a failure of the IHP. In fact, IHP proceedings had commenced for 87% (15,752) of the release population. There is no analysis of the reasons why the process was not completed before release. There was also no analysis of the reasons for the length of stay in INS detention; e.g. delay in obtaining travel documents, circumstances for obtaining counsel or to prepare application for relief; many of which may have been beyond the control of INS.
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The GAO reviewed programs in the five states with the highest foreign-born populations: California, Texas, New York, Florida, and Arizona. However, the resource enhancement for Arizona was not received until late fiscal year 1996 and the consolidated intake and release site in Huntsville, Texas opened in October 1996—after the GAO study period.
Finally, from an analysis of data, GAO concluded that as many as 1,899 potentially deportable criminal aliens released from these jurisdictions may not have been placed into proceedings and removed by INS. In this regard, it is important to note that we have deployed the IHP resources at the intake centers within the five states in order to ensure that we are identifying and processing foreign-born criminals as they enter corrective custody. Given that we are deploying those resources to intake sites during fiscal year 1995 and 1996, we did not expect a dramatic increase in the percentage of prisoners released during those fiscal years who have completed the IHP process. Many of those people who were released during that time had come into the state justice system years before INS had staffed the intake centers.
We consider GAO's data to be baseline data against which future comparisons can be made to measure improvement in the IHP. We think that the data confirms the appropriateness of deploying our resources at the state and Federal prison locations even while noting some areas that need continued improvement.
Conclusion
INS has tried to improve the Institutional Hearing Program by creating new categories within our national database repository, the Deportable Alien Control System (DACs), to improve data collection and reporting capabilities. In fiscal year 96 alone, in excess of $1.3 million was expended to supply our IHP offices with computer hardware and software technologies to improve productivity and access to centralized records.
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In May of 1997, we completed a comprehensive workflow analysis of a mid-size IHP operation at Phoenix, Arizona, to determine methods and procedures that could be utilized nationally to improve IHP performance. Based on this analysis, the Phoenix workflow was streamlined, and because of this, productivity has significantly increased. This analysis will enable INS to develop staffing models to properly deploy resources based upon workload projections for future years.
Additional actions that INS is considering as ways to improve the Institutional Hearing Program are as follows:
Developing improved methods to identify potentially deportable criminal aliens.
Considering the performance of a follow-up study, the results of which can be compared to the baseline information contained in the GAO's Statement of Results.
Improving management information systems for capturing and reporting data on the IHP.
We are currently looking at all of our major occupations with career ladders of GS–9 regarding advancement opportunities and career paths.
Increasing cooperation between the States and INS in implementing all aspects of the IHP, including the identification of potentially deportable criminal aliens.
Improving communication about the IHP to INS Regional and District Offices.
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The Justice Department strongly supports the IHP approach. We believe the program works well when all parties involved work in concert and advance the goals of the program.
I thank the Subcommittee for their attention and am prepared to answer your questions.
Mr. SMITH. Judge Creppy.
STATEMENT OF MICHAEL J. CREPPY, CHIEF IMMIGRATION JUDGE
Mr. CREPPY. Thank you, Mr. Chairman, Mr. Watt and Mr. Pease. It a privilege for us to appear before you today to discuss the U.S. Criminal Alien Institutional Hearing Program.
I would like to briefly describe the U.S. criminal alien program. The U.S. Immigration Court's institutional hearing program is managed by the Office of the Chief Immigration Judge. The Office of the Chief Immigration Judge has established a criminal alien unit, headed by Assistant Chief Immigration Judge Mike McGoings, who is with me this morning. The criminal alien unit plans, monitors and coordinates and provides overall national direction to the immigration court.
Before the start of each fiscal year, the criminal alien unit performs a study to predict the anticipated case loads at each IHP hearing location and prepares for immigration judges agendas to match hearing time with anticipated case loads.
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In order to provide the chief judge and his staff with the most comprehensive information possible to conduct this program, the criminal alien unit identifies trends, anticipates future problems, provides solutions, reviews numerous reports, such as the earliest possible release date report, reviews reasons why hearings were adjourned, case completions and detailed calendars.
All this information is provided to me as the chief immigration judge. I review these recommendations, I allocate available resources and seek additional resources in order to meet whatever IHP needs are.
The IHP process begins with the INS filing a charging document with the Immigration Court. The charging document should contain the alien's earliest possible release date and the alien's location.
With this information about the alien, the Immigration Court schedules the alien for an initial hearing; but, as you know, Congress recently amended the Immigration and Nationality Act, reducing from 14 to 10 days the waiting period before the initial hearing could be held.
Mr. CREPPY. Most of the IHP hearings involve an immigration judge conducting the hearing while physically inside the prison. For years, we have used telephonic hearings in some locations to conduct the initial master calendar hearing. This practice continues, but recently, within the past 3 years, the INS has equipped many locations with televideoconferencing equipment and permitted the immigration judge to conduct hearings, which allows the aliens to see and to be seen. This has been an extremely useful development, especially because the equipment is compatible in all the locations, permitting an immigration judge to hold IHP hearings in remote locations.
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Our experience with televideo equipment is currently limited to the initial hearing. However, as we gain increased familiarity with the equipment, its strengths and its limitations, I am confident that we will begin exploring conducting full-blown hearings, as well, with this equipment.
I am aware that the INS has provided the committee with numerous statistics in its testimony, and so I do not intend to go through all of our statistics, but I would like to share a few statistics with you.
In fiscal year 1995, our courts received approximately 16,672 cases, new IHP cases, and we completed an identical number. Similarly, in fiscal year 1996, IHP receipts held steady at this 16,000 level. In the first two quarters of this current fiscal year, however, the IHP receipts have increased by 50 percent over the comparable period a year ago.
For example, we received this fiscal year, in the first two quarters, 12,000 in the first half of 1997 versus 8,000 cases in the first half of 1996. Thus, for the second half of fiscal year 1997, the Immigration Court will increase the amount of Immigration Court time to ensure that we complete the additional cases that we have received.
This concludes my opening statement. Both Assistant Chief Judge Michael McGoings and I will welcome any questions from you or any member of the subcommittee.
Mr. SMITH. Thank you, Judge Creppy.
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[The prepared statement of Judge Creppy follows:]
PREPARED STATEMENT OF MICHAEL J. CREPPY, CHIEF IMMIGRATION JUDGE
Mr. Chairman and Members of the Subcommittee, I am Michael J. Creppy, Chief Immigration Judge, appearing before you today on behalf of the Executive Office for Immigration Review (EOIR). With me, in the same role, is Michael McGoings, Assistant Chief Immigration Judge, the Criminal Alien Coordinator for the Executive Office for Immigration Review.
It is a privilege for us to appear before you today to discuss the EOIR's Criminal Alien Institutional Hearing Program. Before I tell you about the current activities, permit me to describe briefly the program's development in the past decade.
HISTORY
Following the passage of the Immigration Reform and Control Act (IRCA) in the fall of 1986, EOIR established a national hearing program to implement Section 701 of this legislation requiring the Attorney General to expeditiously commence deportation proceedings for alien inmates convicted of crimes in the United States. The goal of this Institutional Hearing Program is to identify and complete the deportation/exclusion/ removal process of incarcerated aliens in order to expeditiously remove them from the United States at completion of their sentence. This program focuses enforcement efforts on aliens posing the greatest threat to American society—those involved in criminal activity.
EOIR's earliest IHP coordination efforts involved the four state prison systems expected to include the heaviest criminal alien population: New York, Florida, Texas and California. Under the direction of the Office of the Chief Immigration Judge (OCIJ) an EOIR national program has grown from the initial first eleven hundred (1,100) receipts in 1988 to a projected twenty-four thousand (24,000) receipts in Fiscal Year 1997. Today we have IHP agreements with the Federal Bureau of Prisons, and with penal authorities in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands. IHP hearings have been held in every state except those where no filings have been received. To date only seven states have yet to put their agreement into operation: Arkansas, Delaware, Kentucky, Maine, Tennessee, Vermont and West Virginia.
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MANAGEMENT
EOIR's Institutional Hearing Program is managed by the Office of the Chief Immigration Judge. The Office of the Chief Immigration Judge has established a Criminal Alien Unit headed by an Assistant Chief Immigration Judge. The Criminal Alien Unit plans, monitors, coordinates and provides overall national direction to the Immigration Court.
Before the start of each fiscal year, the Criminal Alien Unit performs a study to predict the anticipated caseload at each IHP hearing location, and prepares proposed immigration judge agendas to match hearing time with anticipated caseload. In order to provide the Chief Judge and ACIJs with the most comprehensive information possible to conduct this program, the Criminal Aliens Unit identifies trends, anticipates future problems, provides solutions, reviews numerous reports such as the Earliest Possible Release Dates (EPRD) of the aliens and reviews reasons why hearings were adjourned, the number of receipts, case completions, and detailed calendar analyses. The Chief Immigration Judge reviews these recommendations and allocates available resources (or seeks additional resources) in order to meet them.
PROCEDURES
The EOIR's IHP process begins with the INS filing a charging document with the Immigration Court. The charging document should contain the alien's earliest possible release date and the alien's location. With information about the alien's location and the release date, the Immigration Court schedules the alien for an initial hearing. As you know, Congress recently amended the Immigration and Nationality Act, reducing from 14 to 10 days the waiting period before which an initial hearing could be held.
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Originally, INS would only submit cases where at least one year remained for the alien to serve. The purpose was to insure that there would be enough time for the hearing to be completed before the alien was released from incarceration. This restriction was removed in 1994. To date we have received some cases with very little time left for a hearing. While we understand the factors that sometimes necessitate late filings, experience has shown that the Immigration Courts cannot effectively handle IHP cases unless the charging document contains an accurate Earliest Possible Release Date (EPRD) that permits effective scheduling. In cases such as these the flexibility and cooperation established between EOIR staff, INS and prison officials has proven invaluable. With few exceptions, we have been able to resolve these problem cases and conduct IHP hearings as scheduled.
Most of the IHP hearings involve an Immigration Judge conducting the hearing while physically inside the prison. For years we have also used telephonic hearings in some locations to conduct the initial master calendar hearing. This practice continues. Recently—within the past two years—INS has equipped many locations with televideo equipment, permitting the Immigration Judge to conduct hearings which allow the aliens to see and be seen. This has been an extremely useful development, especially because the equipment is compatible in all of the locations permitting Immigration Judges to hold IHP hearings in remote locations. Our experience with televideo equipment is currently limited to master calendar hearings. However, as we gain increased familiarity with the equipment—its strengths and its limitations—I am confident that we will begin to explore conducting merits hearings as well.
The typical IHP case is adjourned twice: once to permit the detained alien to attempt to obtain counsel, and again, after counsel is (or is not) retained, to conduct the full hearing on the merits. Logistical considerations for these hearings are even more important in IHP hearings than in the regular Immigration Court process. For example, if witnesses are to testify on the alien's behalf it is essential that they arrange with prison authorities for admission to the hearing locations. This is especially true in the case of lawful permanent residents who have been in this country for many years.
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STATISTICS
I am aware that INS has provided numerous statistics in the testimony that it has submitted to the Subcommittee. It is not my intention to provide another welter of statistics. However, let me call your attention to a few numbers that I believe give an useful measurement of the growth of the program and the prospect for the future.
In Fiscal Year 1995 our courts received 16,672 new IHP cases and completed an identical number. Similarly, in Fiscal Year 1996, our IHP receipts and completions held steady at this level. In the first two quarters of the current fiscal year, however, IHP receipts have increased by 50 percent over the comparable period a year ago: 12,000 in the first half of 1997 verses 8,000 in the first half of 1996. For the second half of the year, I will increase the amount Immigration Court time in order to ensure that all of the IHP cases are these cases are completed as received.
CONCLUSION
This concludes my opening statement. Both Assistant Chief Immigration Judge and I would welcome any questions you or any member of the subcommittee may have. Thank you.
INSERT OFFSET RING FOLIOS 6 HERE
SUMMARY
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The Executive Office for Immigration Review (EOIR) established the Institutional Hearing Program (IHP) following the passage of the Immigration Reform and Control Act (IRCA) in the fall of 1986. The goal of the IHP is to complete the immigration proceedings of incarcerated aliens in order to expeditiously remove them from the United States at the completion of their sentences. The IHP is managed by the Office of the Chief Immigration Judge and the Criminal Alien Unit, headed by an Assistant Chief Immigration Judge. The Criminal Alien Unit plans, monitors, coordinates and provides overall direction to the IHP.
EOIR initially concentrated its IHP coordination efforts in the four state prison systems expected to have the largest criminal alien population: New York, Florida, Texas and California. EOIR now has IHP agreements with the Federal Bureau of Prisons and with penal authorities in all fifty states, the District of Columbia, Puerto Rico and the Virgin Islands. The IHP has grown from 1,100 receipts in 1988 to an expected 24,000 receipts in fiscal year 1997.
In fiscal year 1995 our courts received 16,672 new IHP cases and completed an identical number. Similarly, in fiscal year 1996, our IHP receipts and completions held steady at this level. In the first two quarters of the current fiscal year, however, IHP receipts have increased by 50 percent over the comparable period a year ago. EOIR will increase the amount Immigration Court time in order to ensure that all of the IHP cases are completed as received.
Mr. SMITH. Mr. Virtue, let me direct my first questions to you. What is your projection for fiscal year 1997 as to the number of criminal aliens who will be actually removed under IHP?
Mr. VIRTUE. Fourteen thousand during this fiscal year, and we expect to make that projection.
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Mr. SMITH. Fourteen thousand. How many will be released into the larger society, into our communities? If 14,000 are processed, how many will be released?
Mr. VIRTUE. Well, we don't have a number for the—I mean, we don't have a projection for the number of people who would be released overall, but I think our projection would have estimated that we would be removing about—somewhere between 40 and 50 percent under the IHP would have completed the IHP and be able to be removed of the people who were being released from State and Federal institutions.
Mr. SMITH. Okay, that gives an indication of how many will be released. And if the past is any indication—for instance, that 6-month period in 1995—then about 25 percent of those people who are released are likely to be aggravated felons?
Mr. VIRTUE. I am sorry, 25 percent?
Mr. SMITH. Twenty-five percent. I am going back to that sampling of the 635 where you had about a quarter of those individuals who were aggravated felons.
Mr. VIRTUE. No. Actually, 635 were aggravated felons out of, I believe——
Mr. SMITH. You are right. It is a quarter who were rearrested.
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Mr. VIRTUE. About a quarter of those had been rearrested, that is right.
Mr. SMITH. Okay. I heard you say in your testimony a minute ago that you expect to do a lot better and give the program a lot higher priority than in the past.
In order to make the program work, I think you are going to have to adopt all 5 recommendations by the GAO. Does the INS expect to implement those 5 recommendations, and if so, when?
Mr. VIRTUE. We will be implementing—we will be replying to GAO's recommendations, which we were able to review on Friday. And basically four out of five we have no problem with; we had every intention of implementing those in any event. But the one recommendation where GAO recommends that we prioritize cases based on the seriousness of the offense and that we give priority to aggravated felons raises a concern if we simply do it without taking a look at how long the person has left to serve on their sentence. Because we certainly want to try to get people, before they are released from prison, and that is the goal of the program. And so our focus right now is to prioritize those with the shortest period of time.
Mr. SMITH. Right.
Mr. VIRTUE. Now, within that, we certainly want to give priority to serious crimes, but if we were to adopt the GAO recommendation without taking those other factors into consideration, we think it would cause problems in the process——
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Mr. SMITH. I understand. When do you think you will have adopted or implemented the GAO recommendations?
Mr. VIRTUE. I really can't give a time period for that. As I said——
Mr. SMITH. Give me an order of magnitude, 6 months, 6 years? When do you think you will adopt the GAO recommendations?
Mr. VIRTUE. I think we can begin right away. In terms of creating the database that GAO has recommended——
Mr. SMITH. Okay.
Mr. VIRTUE. The system is necessarily based on the information that is supplied to us by the States. The systems time and development may take some time, but I think we need to do that right away.
Mr. SMITH. That is the database that keeps track of the criminal aliens in the State and Federal penitentiaries, right?
Mr. VIRTUE. That is right. It would take the information we gain from the different States and place it into one system.
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Mr. SMITH. GAO also reported that the INS has not come close to filling all the jobs designated for IHP. Why is that?
Mr. VIRTUE. We have had a couple of problems. One is in filling the vacancies that we have in the investigations program. We are pushing the recruiting and hiring process so that we can fill the special agent vacancies that we have.
The other, as GAO indicated, is a concern that we have about the attrition rate among immigration agents. They pointed out the 30 percent attrition rate in 1995, but at that time we had only 57 immigration agents on. At that period of time it was a brand-new classification, and so 30 percent attrition rate was not necessarily that unusual.
Looking at this fiscal year, we have had about a 15 percent attrition rate. That is still too high. It would—ordinarily we would expect it to be 8 to 10 percent. So we do want to look at that job classification to see if we can make better use of that classification at the IHP.
Mr. SMITH. Thank you, Mr. Virtue.
Judge Creppy, I would like to ask you a couple of quick questions, if you could give me brief answers.
We had trouble getting from EOIR the requirements for scheduling an IHP hearing. Can you tell me what the requirements are for a hearing, and can you also tell me why about a quarter of the scheduled hearings do not occur?
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Mr. CREPPY. Well, let me start with the first question. That is easier.
Mr. SMITH. Okay.
Mr. CREPPY. We scheduled the IHP hearings upon the INS filing the charging document. On the charging document, they have to have the earliest possible release date, because that tells the court administrator how much time the alien has left and how fast that case should be put on the calendar.
Also, on the charging document, there should be the housing location, in other words, where the alien is being housed, so that we can assure that the notice of hearing is being given to the alien.
That is basically how the process works.
Now, up until about 1994, there used to be a rule that required that the alien have at least one year left on his or her sentence before that person could enter the IHP program; and that was to ensure that the Court had sufficient time to schedule and to complete the hearing before the alien was released.
In 1994, that 1-year requirement was removed and now we have, you know, situations where it is possible that we get cases with little or no time, you know, to complete the hearing. But since we give high priority to these IHP cases, we work both with the State and the INS; and we try to put them on as soon as possible, but because sometimes there isn't sufficient time left to complete the hearing before the alien is going to be released, this results in people not having their hearings complete in the institution that otherwise could have, had there been sufficient time left on the sentence.
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In terms of your second question, in terms of why aren't cases that begin as IHP being completed before the end, again, I think there are a number of reasons. One is the one I just talked about, the earliest possible release date. We get the case a week before the alien is going to be released, and a very small percentage—sometimes we have no-shows; sometimes we don't have the housing location number where the alien is, it is an incorrect housing number. So you send the notice and the hearing is scheduled and the alien isn't there, so you have to continue it.
But at times the alien comes back it is closest to the earliest possible release date, the alien is released. So there are factors like that.
Judge McGoings, do you have anything to add to that?
Mr. MCGOINGS. Sometimes the alien will get out of the IHP without having completed the hearing, at which time he would usually go into detention, and that case is almost always finished in detention. It is not counted as an IHP, but he is in the pipeline somewhere. But if it is not finished, it will be finished in detention.
Mr. SMITH. Okay. That answered my question.
Thank you, Judge Creppy.
The gentleman from North Carolina, Mr. Watt, is recognized.
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Mr. WATT. Thank you, Mr. Chairman. The feeling is coming back in my jaw and my head is waking up, so let me make a couple of comments that I might have otherwise made earlier in the hearing.
First of all, I don't think we should let the record go undocumented that the INS is making some fairly substantial strides to improve this system; and it sounds to me like, 1996 and the start of 1997, there are record numbers of deportations taking place in the IHP program. But that should not be used as an excuse for not fully implementing this program; and I want to give both sides of that—I want to give praise to the people who are improving the system.
But the truth of the matter is, if you did a cost-benefit analysis on this program, as compared to most other programs, this is probably the most cost-beneficial process you could possibly have, because you already have got the person in detention. You know that they are supposed to pretty much be deported, and if—you don't have to go out and round them up. You don't have to spend the resources to do any of that, because it has already been done.
And so it seems to me that the ideal here would be to try to strive toward a 100 percent, or as close to a 100 percent performance ratio; and in that, I support Mr. Smith's objective. I mean, I just think we have got to keep pushing this thing up to the—to the maximum point that it can be pushed. I am not persuaded much by the argument that we don't have enough personnel, because we are not applying—if we are not using the personnel here, then we are having to employ two or three other personnel to do this somewhere else in a less controlled setting.
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So I am very impressed with Judge Creppy's comment that they got, what, 16,000 people into the pipe and 16,000 out of the pipe. They did every single case, but they can't do any more cases—they can't hear any more cases than are identified for them to do and that they get the paperwork done.
So that leads me to the same question that I was trying to get at on the earlier panel. How can we identify the amount of resources that would be necessary to fully and competently implement the IHP program?
It seems to me that whatever amount of resources we need to fully implement this program, we need to try to get, and the first step toward getting those resources is to identify what the resources are. That was number three, as I recall, in the GAO's set of recommendations.
Mr. Virtue, Ms. Mellado, have you all done any modeling, any kind of study of what it would take to fully and competently implement the IHP program?
Mr. VIRTUE. We completed a work load analysis of what we considered to be a medium-sized IHP in Phoenix, Arizona. And we hope to take the work load data that we gained from that—we looked top to bottom, the process from beginning to end—and identify the resources that would be necessary for that level; and we want to take that model and apply it to other IHP locations.
So we have begun that model to take a look to see what it would require to be 100 percent effective, but we have to take a number of things into consideration.
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We want to make better use of administrative deportation, where we have an aggravated felon who has no relief. And INS can simply issue an order in those cases and reinstatement of final order of deportation for people who have reentered the United States; we think those are important tools under the new Act that we will be able to use.
But the other issue is that we want to continue to work with the States and the Bureau of Prisons to, as best we can, consolidate the foreign-born population into as few intake centers and release sites as we can, to make most efficient use of the system.
Mr. WATT. I heard you say that, Mr. Virtue, but it seems to me that that may be more difficult and more inefficient than sending people to the locations where these people are to process these things.
Why is it—why is that so absolutely critical that you have five or ten or however many sites that you are trying to consolidate people to, as opposed to getting the people where they are?
Mr. VIRTUE. Well, it—we gain from the volume of people we are dealing with not only at the identification site where we can staff continuously and have somebody working full-time in the process of identification, so that—the people in that facility are largely foreign-born inmates—so that the process continues smoothly. If we spread people out and perhaps have people traveling to different sites, then they may not be fully engaged full-time; they spend a lot of their time traveling.
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The same is true at the release end. We want to make sure if we send a bus out to pick people up, we try to fill that bus up, or buses.
But I agree with you, there would be a point of diminishing returns if we try to consolidate those too much because then it affects the processing within the States and the Federal Bureau of Prisons.
Mr. WATT. Mr. Chairman, let me ask one other question.
There was a recent Supreme Court case involving the Brady bill that basically said the Federal Government can't require States to do a lot of things that we have been trying to require States to do.
I guess we have got a State panel of witnesses coming up, but what implications, if any, have you all read that case to have for developing some kind of relationship with the States that will make this process more efficient? I understand most of these people actually are in State detention facilities, not Federal detention facilities; and to some extent, that is in the face of the Supreme Court's decision.
Mr. VIRTUE. We haven't read that case to have any effect on this program. The States certainly benefit from identifying foreign-born inmates among their population, and they have been cooperating.
Mr. WATT. In the past, you have been able to require or insist on States doing certain things. What you are saying is that it is in their interest to do it, but there is no way you are going to be able to require them to do it. So this case has some pretty substantial implications for this, I would think.
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Mr. VIRTUE. I would say, we cajoled more than insisted or directed, certainly. So I don't believe there are any constitutional problems. But the States do gain from the SCAAP funds that are available to reimburse States for the detention of criminal aliens. So it behooves the States to identify the deportable aliens within their population.
And back in March, I wrote a letter to each of the correctional institutions, the people responsible for each of the correctional institutions in the States, asking for specific information on their foreign-born populations. Twelve of those have responded so far, but we expect to get more responses as well.
So it is really a cooperative effort, and certainly, we don't think that we are directing the States to do anything that is not to their benefit.
Mr. WATT. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
The gentleman from Indiana, Mr. Pease, is recognized.
Mr. PEASE. Thank you, Mr. Chairman.
Judge Creppy, I also was impressed with your presentation and the work that you are doing. I wanted to discuss a couple of different matters that you had raised, though. I was interested in those Mr. Watt raised.
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You indicated a 50 percent increase in your caseload in the first two quarters of 1996 over 1995?
Mr. CREPPY. No, 1997 over 1996.
Mr. PEASE. 1997 over 1996?
Mr. CREPPY. Yes.
Mr. PEASE. Do you have any understanding as to why that is, what has caused such an increase?
Mr. CREPPY. Well, I think the increase has occurred because the INS has stepped up processing aliens. Because our program can't start unless they file cases with us, and I think in large part that I can say in all of the six big States, except one, that there has been a substantial increase in receipts—I mean, a tremendous increase.
Mr. PEASE. So I hear you saying that it is work of the INS that is just bringing more cases to you.
Do you notice a difference in type of case or is there anything that indicates something is different, other than increased effort by the INS to work harder in this area?
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Mr. CREPPY. I would say, Congressman, that I think it would have to be attributed to the INS effort. I would really have to say that.
Mr. PEASE. Okay. Do you have—or does there exist anywhere some sort of a profile, either formal or just your understanding, of a typical offender that would appear before you in terms of the kind of offense that is been committed, the amount of time of the sentence, how much time is left to be served? Is there any sort of a profile that exists?
Mr. CREPPY. Well, I am going to ask Mr. McGoings to respond to that.
Mr. MCGOINGS. I think that profile might vary, depending on where you are in the country. I think in the Southwest, where you are faced with a lot of illegal entries coming across the border, there are likely to be people serving very short sentences, whereas on the East Coast and some of your Northeastern States, you are going to find people serving longer sentences. Many of them are lawful permanent residents, many of them having perhaps some relief in deportation, and I think that can make a difference in the whole venue.
Mr. PEASE. Thank you. If there is a difference, I assume—as you say there is—there is sufficient flexibility within the system as it is established now for you to—and I realize you are processing what is sent to you by other folks, but for you to be able to respond more quickly in those cases where time is of the essence than those others where it may not be so important?
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Mr. MCGOINGS. Yes, I think there is. And the key element to that, and it happens a lot in the Southwestern States, is cooperation at the low level. And we do have that with INS and the States, because many times you do get aliens coming in who are going to get out within a few days or a week; and they have—because it is almost built into the system, they have worked out ways to schedule that.
So we have EPRDs with a very short time left, but they do manage to get those cases completed.
Mr. PEASE. Mr. Virtue, did I detect that you wanted to respond to that?
No. I saw some motion when I asked the judge.
Mr. VIRTUE. A typical profile?
Mr. PEASE. Yes, and the flexibility to respond if the profile varies—the offenders obviously vary—across the country.
Mr. VIRTUE. I would agree with that. In the Southwest, we are looking at immigration violations. In the Northeast—just looking in the GAO study at the number of people who are rearrested, the largest number of those were possession with intent to distribute drugs, and that is a typical profile that we see as well.
Mr. PEASE. While you are there, Mr. Virtue, you mentioned—you told us that you were able to cut that turnover in the officers that are assigned in this program from better than 30 percent—cut it in half to 15 percent; and you would like to cut it in half again, is what I think I heard you say, to about 8 percent. What have you done that resulted in the reduction in turnover so far, and what do you anticipate needs to be done to get you down further to the level you would like to be?
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Mr. VIRTUE. Well, I don't know that anything—other than the fact that we had only 57 agents represented on the 30 percent turnover and now we have—I don't know what the number is, but it is much larger than that, and so the attrition rate of the number of people, the actual number of people leaving for other positions is lower. But the percentage has gone well down.
So that has changed without really our taking any steps to improve the retention among that group.
But I think we need to really look at it. We are selecting for special agents and deportation officers from the same list we are selecting for immigration agents, so a lot of people are looking at it as a stepping stone to the next enforcement-related position. We really need to look at that classification in order to do a better job in terms of attrition rate and match it with the work that is being done. So we are in the process of doing that.
Mr. PEASE. Okay. So you will—I was trying to give you an opening to take some credit there, but apparently you are not going to do that.
Mr. VIRTUE. I would love to have taken credit, and we will try wherever we can.
Mr. PEASE. Okay.
Mr. WATT. They took credit for hiring the people.
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Mr. PEASE. Then you obviously are involved in your analysis now as to what you are going to do to try to improve that?
Mr. VIRTUE. Yes.
Mr. PEASE. Okay. I have no further questions.
Mr. SMITH. Thank you, Mr. Pease.
Mr. Virtue, I have a quick statement to make, and I know Mr. Watt has at least one more question to ask.
My observation is this: That just in talking about immigration, as I do often, one of the most astounding figures I ever use is the fact that almost 25 percent of our Federal prison inmates are, in fact, criminal aliens. And that says a lot about our immigration policy, which isn't always so good. It says a lot about what we can do to try to make our communities safer and protect the lives of our citizens and legal immigrants who are already in this country.
But it seems to me with the IHP program that you have had and continue to have just a wonderful opportunity. With the expenditure of relatively few funds, with the INS making it a higher priority, with the INS adopting the recommendations of the GAO report, you have a wonderful opportunity to do a whole lot of good for a whole lot of people across America; and I just hope that you are not going to let that opportunity slip by. I hope you will do a better job in the future than has been done in the past.
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I hear what you say today, and I hope that your commitment of words will be followed by a commitment of actions.
As Mr. Watt implied a few minutes ago, the answer is simple. You hire more people. You hire the people that we give you the money for. You make it a higher priority and you make our communities safer. I don't know what in the world would prevent you from going forward full speed with that task.
You are welcome to respond.
Mr. VIRTUE. We think we are doing that. We think, looking at the GAO study, they were looking at fiscal years 1995 and 1996 when we were bringing on substantial increases in our resources for this program. As was pointed out earlier, the budget impasse in 1996 resulted in a delay of our getting funding for those positions until late in 1996. So we are very encouraged by the figures from the first 6 months of fiscal year 1997, and so we agree that the IHP is an important program for us, has to be a priority and will continue to improve that process.
Mr. SMITH. Thank you, Mr. Virtue.
Judge Creppy, if I could address a question to you—and this is in regard to the State of California, which seems to not be as effective in implementing the IHP as other States and, in part, that is because of some very onerous restrictions that are put upon the process—as I recall, I am going by memory here, for instance, individuals who are to fall under the IHP have to be illegal aliens who speak English or Spanish and who agree to be deported.
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Why do we have those kinds of restrictions when no other State does; in your opinion?
Mr. CREPPY. Well, I am going to pass that question to Judge McGoings, who knows about the program. I have my personal views, but I think he could give a more comprehensive answer.
Mr. SMITH. That is a question I will follow up with when we have a representative from California, in our next panel, as well.
But, Judge McGoings, I would like to hear what you have to say.
Mr. MCGOINGS. Well, just speaking from the perception of the Court, I agree with your statement that there are processes there that might hold or slow down the system. But our statistics show that we are getting more receipts in California than in any of—any of our other big five States in terms of charges being filed with the Court. We are getting quite a few.
In fact, last year we got—for fiscal year 1996, we received 5,463 charging documents in the State of California, whereas in Florida we received 1,024. So it is quite a difference.
Mr. SMITH. I am not just going by raw numbers, because that might be driven by other factors; it is the IHP itself that I am talking about. There seem to be more restrictions on it in California, which result, I believe, in fewer individuals being identified and fewer individuals being deported upon finishing their term than in other States.
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Is that not the case?
Mr. MCGOINGS. I would have to look into that.
Mr. SMITH. We will bring it up with the next panel, and I will direct my question to them.
Thank you both.
Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I just wanted to follow up with Judge Creppy to make sure that a year from now, when he comes back to report, we also have this 100 percent performance that he reported this time and ask a little anticipatory question.
At what point is this increased level of caseload going to overtax the number of judges you have to handle these cases? And are you working with Mr. Virtue to make sure that that gets programmed into this modeling that they are doing so that they don't just ratchet up the front end and then leave you on the back end not having enough judges to handle the caseload?
Mr. CREPPY. Right. Well, one thing, I can assure you that we have sufficient immigration judge time presently to handle this increase. It just means I have to go back now and start to use the time that I allocated that wasn't being used, now that we can use the time to ensure that we can complete.
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One of Judge McGoings' functions is to coordinate with the INS. There are daily meetings, monthly meetings with the INS and with the State, and so we talk. Judge McGoings' unit has to monitor these trends, and this is why we knew that—the INS had increased receipts, and we knew that we have to increase our immigration judge staff to ensure that at the end of this fiscal year we are able to keep up with the receipts.
But again, if INS decides to—if they get additional resources to add more investigators, upon my learning of that, then we would have to seek additional resources as well. But as long as we continue the cooperative effort, then I think—the INS is working well with us, the States are working well with us we can do it; and I think that everybody agrees that this group of aliens should be removed from the United States as expeditiously as possible.
So I think the desire and the effort is there, and EOIR will put in 150 percent to ensure that it is done; I am certain that INS and the other parties will as well.
Mr. WATT. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
Mr. Pease, do you have any other questions?
Mr. PEASE. Just one, Mr. Chairman.
Mr. SMITH. The gentleman is recognized.
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Mr. PEASE. I don't know if I should direct this, Mr. Virtue, to you, or to the judge. But can you describe for me, after a removal order has been issued under the IHP, what then are the mechanics or what is the procedure for actually then physically removing the person and taking him or her out of the country?
Mr. VIRTUE. INS will take that person into custody after the State's release of that person. If we are in a situation where we have a removal order that was issued prior to the person's release, we would take that person into custody, basically for the purposes of making traveling arrangements. And if we don't have the travel documents, a passport, then we would work with the receiving country, get travel documents, and then remove the person.
Mr. PEASE. Okay. So you would—you are constrained by the sentence under which the person, if it is in a State facility, is serving, and you issue an order or some communication to that State that when this person is eligible for release, you will make the transfer out of the country at that point?
Mr. VIRTUE. We were constrained by that until there was a provision in the 1996 Act that permits the Attorney General to remove someone prior to the end of their sentence.
Mr. PEASE. Even with a State sentence?
Mr. VIRTUE. Even with a State sentence.
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Mr. PEASE. Okay.
Mr. VIRTUE. Typically, at the request of the State, and we are working on regulations to implement that provision.
But in virtually all cases, I think that would be dependent on State law permitting——
Mr. PEASE. Sure.
Mr. VIRTUE [continuing]. That type of a release.
For example, in Florida we have been working with their executive clemency program where people are actually given clemency for purposes of INS deporting that person from the United States; and then if they return within the period of the original sentence, they have to go back and serve the sentence again.
And again we are dealing—in terms of our regulation, we want to only apply this to nonviolent offenders, and I believe the statute provides that way as well, that somebody would be removed early for a nonviolent offense. We want to make sure violent offenders serve their entire sentence.
Mr. PEASE. I see. Well, I am not sure that bothers me. If it is a nonviolent offender that is being removed from the country, why would we care?
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Mr. WATT. Because they will turn right around and come back to us?
Mr. PEASE. You think they will come right back to us?
Mr. WATT. Yes.
Mr. PEASE. I mean, I don't know. You have better experience on this than I do.
Are those people actually being removed? Somewhere in one of the GAO reports there was an indication that as much as a fourth or a third of the people, a year and a half later, are still in facilities. Is that because the States have said, we don't want to release them yet; or is it because we just haven't made it happen?
Mr. VIRTUE. A year and a half after the person has a removal order?
Mr. PEASE. Yes.
Mr. VIRTUE. Well, up until September 30 of last year, our statute prevented our removing the person early unless there was some provision under State law where the person could simply be released; and that is why we have worked with the executive clemency program in Florida, which was really the only State.
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I think State of New York has a statute that permits early release for deportation, but our statute—we had some problems, I think, with our restrictions in the INA that required the Attorney General to wait until after the person had served their sentence. That is no longer a problem for us and so we should be able to do that.
Mr. PEASE. Okay. Thank you.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
We thank you all for being here and for your contributions.
Mr. Virtue, I have a few more questions that I will submit to you in writing.
Thank you all for being here.
Mr. SMITH. I will introduce the third panel as they come forward: Mr. John Clark, Assistant Director, Community Corrections and Detention Division, accompanied by Mr. James Zangs, Administrator, Detention Services Branch, both from the Federal Bureau of Prisons.
Also, Mr. Joe Sandoval, California Youth and Adult Correctional Agency, accompanied by Mr. David Padilla, Chief, Management, Analysis and Evaluation Branch, California Department of Corrections; Ms. Kelly Tucker, Correctional Services Administrator, Florida Department of Corrections, Mr. Anthony J. Annucci, Deputy Commissioner and Counsel, accompanied by Mr. David Clark, Program Research Specialist, both from the New York State Department of Correctional Services; and also Ms. Catherine C. McVey, Assistant Director of the Programs and Services Division, Texas Department of Criminal Justice.
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Mr. SMITH. We welcome you and before starting with Mr. Clark, let me confess at the outset, I was looking for Ms. McVey from Texas.
I want you all to know—and this isn't any comment on anyone else—that it wasn't until we got the information, went forward with this hearing and read testimony that I realized that, arguably, Texas is setting the pace for implementation of IHP; and we will hear more about that in a minute. But I thank Ms. McVey for being here, particularly because I am from Texas as well.
Mr. Clark, we will begin with you.
STATEMENTS OF JOHN L. CLARK, ASSISTANT DIRECTOR, COMMUNITY CORRECTIONS & DETENTION
Mr. CLARK. Mr. Chairman and members of the subcommittee, I appreciate the opportunity to appear before you today to discuss the Institution Hearing Program in the Federal Bureau of Prisons.
Since 1980, the number—as the Chairman has pointed out on a couple of occasions this morning, the number of non-U.S. citizens serving Federal sentences in the Bureau of Prisons custody has increased from 4.3 percent to about 25 percent.
Currently, there are approximately 24,000 non-U.S. citizens serving in Federal prisons in Bureau custody. In March of 1996, the Bureau, the Immigration Service and the Executive Office of Immigration Review signed a memorandum of understanding agreeing to implement an enhanced Institution Hearing Program plan to provide deportation hearings to the expanding criminal alien population.
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The enhanced IHP is designed to have most non-U.S. citizens' deportation status determined at the beginning of their sentence or well before their release date rather than at the end.
By doing this, the INS can minimize the number of aliens detained upon expiration of their sentence and, from our point of view, the Bureau can utilize the deportation information to better manage its population.
As part of the enhanced plan, hearing programs are being established at a total of 11 sites. The Bureau has set aside 2,400 beds at these sites for aliens being processed for immigration hearings. In addition, the enhanced plan identifies 5,600 beds at 26 Bureau institutions that will be used as release sites for inmates who are found to be deportable.
Implementation of the enhanced plan began in fiscal year 1996 and is expected to be completed by the end of fiscal year 1997.
I might mention that throughout the development and implementation of this enhanced plan, the Bureau, the INS and EOIR staff have fully cooperated with each other and really have worked together very well in collaborating on all aspects of this project.
Mr. Chairman, this concludes my formal statement. I would be pleased to answer any questions.
Mr. SMITH. Thank you, Mr. Clark.
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[The prepared statement of Mr. Clark follows:]
PREPARED STATEMENT OF JOHN J. CLARK, ASISTANT DIRECTOR, COMMUNITY CORRECTIONS & DETENTION
Mr. Chairman and members of the Subcommittee, I appreciate the opportunity to appear before you today to discuss the Institution Hearing Program (IHP) in the Federal Bureau of Prisons (Bureau).
Currently, there are approximately 24,470 non–U.S. citizens serving Federal sentences in Bureau custody. This figure represents 23.9 percent of the total sentenced Federal prison population.
The IHP is a cooperative effort of the Immigration and Naturalization Service (INS) and the Executive Office for Immigration Review (EOIR). Since 1989, the Bureau has assisted in this program by transferring criminal aliens to Bureau facilities with IHP programs and/or by providing, at some sites, office and courtroom space for deportation hearings.
BACKGROUND
Beginning in 1989, INS, EOIR, and the Bureau administered an IHP at the Federal Correctional Institution (FCI) in Oakdale, Louisiana, and subsequently opened limited programs at five other locations. The Oakdale program was originally established to provide deportation proceedings for male, non–Cuban, non–Mexican inmates prior to the completion of their sentences. Six hundred beds were set aside at FCI Oakdale for inmates to participate in the IHP.
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The Bureau transferred inmates to FCI Oakdale approximately six months before the end of their sentences to make them available to INS and EOIR for deportation proceedings.
In addition to the Oakdale program, there were limited IHP programs at other institutions holding Bureau inmates: the Federal Correctional Institution (FCI) in La Tuna, Texas; the United States Penitentiary in Leavenworth, Kansas; the FCI in Danbury, Connecticut; the FCI in Dublin, California; and a contract detention center in Big Spring, Texas. The Danbury and Dublin IHP programs were for females. With the exception of Oakdale and the female programs, the IHP at these institutions was limited in scope in that inmates were not transferred to these institutions specifically for the IHP.
In July of 1994, the Bureau opened a joint Bureau-INS contract facility in Eloy, Arizona. This contract facility is divided into two sections: a section with 500 beds for Bureau inmates and another section with 750 beds for INS detainees. The Eloy facility was designed with courtrooms for EOIR judges and office space for INS and EOIR staff to provide an IHP for the Bureau inmates and deportation proceedings for the INS detainees.
The IHP at Eloy was the first program where non–U.S. citizens are designated specifically to receive their immigration hearings at the beginning of their sentence. After completion of their hearings, inmates are transferred to other institutions to free up beds for more non–U.S. citizens in need of hearings. Furthermore, the Eloy program provided hearings for Mexican nationals.
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ENHANCED IHP
In March of 1996, the Bureau signed a Memorandum of Understanding (MOU) with INS and EOIR to assist them in the implementation of an Enhanced IHP Plan. The Enhanced Plan is designed to have the deportation status of non–U.S. citizens determined at the beginning of their sentence or well before their release date, rather than at the end. By doing this, INS can minimize the number of aliens detained after expiration of their sentences, and the Bureau can utilize the deportation decisions of INS to better manage our population. The IHP program at Eloy served as the model for the Enhanced IHP. Under the Enhanced IHP, the existing IHP programs were expanded, INS and EOIR staff were added, and new IHP sites were opened.
Implementation of the Enhanced IHP began in fiscal year 1996 and should be completed by the end of fiscal year 1997. When fully implemented, there will be a total of 11 IHP programs. The Bureau has identified 4,200 beds for non–U.S. citizens being processed for immigration hearings.
The Enhanced Plan also identifies 26 institutions that will be used as Release Sites for inmates found to be deportable. The Bureau has identified 5,600 beds at these institutions for inmates who have completed the hearing process and have deportation orders.
In addition to the identification of IHP and Release Sites, the Bureau has implemented new information-sharing procedures to notify INS of non–U.S. citizens entering Bureau custody. The Bureau provides INS a monthly data file that includes the names and other identifying information about all new non–U.S. citizens designated to each IHP site. INS staff also have access to the Bureau's inmate information system to identify non–U.S. citizens before their arrival at the IHP sites.
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The implementation of the Enhanced Plan has involved two major initiatives. The first was the identification or construction of suitable office and hearing space for INS and EOIR staff at the IHP sites. Construction costs, when necessary, were assumed, in large part, by INS.
Second, the process of designating non–U.S. citizens to specific institutions for IHP hearings and then, once the hearings are completed, transferring these inmates to Release Sites required the development of new policies and procedures. In addition, the Bureau has had to train staff on these new policies and procedures.
A total of 9,800 beds (4,200 hearing beds and 5,600 release beds) have been identified for the IHP hearing and release programs. Already, more than 85 percent of the IHP beds are filled, and it is anticipated that these beds will be fully occupied by IHP inmates by the end of fiscal year 1997.
NEW BUREAU PROCEDURES FOR THE ENHANCED PLAN
The Hearing Phase
Since the non–U.S. citizens in Bureau custody are primarily low-security, Mexican nationals serving sentences of less than six years, the IHP sites are mostly low-security facilities located near the Mexican border. In 1996, an analysis of the Bureau population revealed that only nine percent of the non–U.S. citizens are medium- or high-security inmates. Further, most medium- and high-security inmates decrease to low security by the time they are within five years of release.
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Under the Enhanced Plan, the Bureau designates all newly-sentenced non–U.S. citizens serving less than six years directly to an IHP site. This group represents over 80 percent of the non–U.S. citizens.
Newly-sentenced non–U.S. citizens serving more than six years are designated according to standard Bureau designation procedures. Generally, these inmates are medium- or high-security or are serving lengthy sentences. When they are within five years of release, they are transferred to an IHP site.
The IHP at FCI Oakdale will continue to operate as it is for those aliens currently in the system who have not completed their hearing process up-front. As these inmates complete their hearings, Oakdale will convert to an up-front IHP site.
The Release Phase
The Enhanced Plan calls for designating aliens with deportation orders to a Release Site after their hearing in order to expedite the removal process. Twenty-six institutions have been identified as Release Sites. These institutions are strategically located to assist in the removal process. The Bureau and INS have agreed to expand the number of Release Sites in fiscal year 1998.
CONCLUSION
Once the Enhanced Plan is fully implemented, the number of aliens who receive their deportation orders while serving their Federal sentences will increase significantly. As a result, the number of aliens detained by INS after expiration of sentence will be minimized.
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Throughout the development and implementation of the IHP, the Bureau, INS, and EOIR staff have cooperated fully with each other, working together and collaborating on all aspects of the Ehanced Plan.
Mr. Chairman, this concludes my formal statement. I would be pleased to answer any questions you or other Members of the Subcommittee might have.
SUMMARY
Since 1980, the number of non-U.S. citizens serving Federal sentences in Bureau of Prisons custody has increased from 4.3 percent to 23.9 percent. Today, there are approximately 24,470 non-U.S. citizens serving Federal sentences in Bureau custody.
In March 1996, the Bureau, the Immigration and Naturalization Service (INS), and the Executive Office for Immigration Review (EOIR) signed a Memorandum of Understanding agreeing to implement an Enhanced Institution Hearing Program (IHP) Plan to provide deportation hearings to the expanding criminal alien population.
The Enhanced Plan is designed to have most non-U.S. citizens' deportation status determined at the beginning of their sentence or well before their release date, rather than at the end. By doing this, INS can minimize the number of aliens detained upon expiration of sentence, and the bureau can utilize the deportation information to better manage its population.
As part of the Enhanced Plan, hearing programs are being established at a total of 11 sites. The Bureau has set aside 4,200 beds at these sites for aliens being processed for immigration hearings.
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In addition, the Enhanced Plan identified 26 Bureau institutions that will be used as Release Sites for inmates found to be deportable. The Bureau has set aside 5,600 beds at these institutions for inmates who have completed the hearing process and have deportation orders.
Implementation of the Enhanced Plan began in fiscal year 1996 and is expected to be completed by the end of fiscal year 1997.
Mr. SMITH. Mr. Sandoval.
STATEMENT OF JOE SANDOVAL, SECRETARY, CALIFORNIA YOUTH AND ADULT CORRECTIONAL AGENCY
Mr. SANDOVAL. Thank you, Mr. Chairman and members. As I provide you with information regarding the effectiveness of the enhanced IHP, I am going to also discuss policy issues that are of major concern to California; and I will provide some recommendations for improvement that may help better address the problems associated with this critical issue.
First, I believe that it is important for you to understand the magnitude of the problem in my State. Approximately 15 percent, or 20,000 inmates, are criminal aliens who cost the California taxpayer almost $420 million. These 20,000 criminal aliens occupy the equivalent of five prisons, whose construction costs exceed $1.3 billion.
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The IHP was established to ensure that criminal aliens are processed for removal from the United States upon the completion of their sentence. The department releases—the Department of Corrections releases approximately 1,000 criminal aliens to INS for possible deportation each month, and approximately 400 of that number are processed through the IHP.
In 1995, INS provided a draft proposal for an enhanced IHP for the department's review and consideration. The major features of that proposal were, first, that INS would provide additional staff at each of California's 11 prison reception centers, to interview all suspected foreign-born inmates at intake, make a determination of their alien status and place detainers on the criminal aliens before the department transferred them from the reception center to their assigned institution. This proposal has not been fully implemented.
INS also proposed to eliminate the backlog of potential deportable aliens by increasing the number of agents in the prisons who would interview potentially deportable aliens to determine their alien status. That backlog continues to grow. Presently there is a backlog of about 5,500 potential deportable alien inmates statewide.
INS also proposed that prescreening criminal aliens to identify inmates who would contest deportation be done by institution counselors. This proposal has not been implemented. It is a proposal that would shift work load to California and represents an additional cost to the State, which we oppose.
INS also proposed that inmates who contest deportation should be housed together 1 year prior to the inmate's parole date to accommodate the lengthy hearing process. This represents an additional work load to California, but more importantly, it would potentially compromise California's inmate classification and management policies, which are essential to maintaining safe and secure prison operations.
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INS also proposed to conduct over 700 hearings per month at the IHP facilities. That goal has not been achieved. In fact, the average number of IHP hearings per month has declined from 440 in 1995 to 400 in 1997.
Finally, the INS proposed that they would complete criminal alien status investigations and issue an INS hold, as appropriate, within 60 days of the initial interview. That goal has not been achieved. In fact, the time to complete the criminal alien determination is averaging about 157 days.
Now I would like to briefly discuss several related criminal alien policy issues of importance to California.
First of all, California is very thankful for the work of this subcommittee and the Congress to secure additional funding to reimburse State and local governments for the cost of incarcerating criminal aliens. I was especially pleased to learn of the recent action that was taken to increase the funding to $600 million in the coming year.
Unfortunately, the cost of this offender population continues to outstrip the funds that have been distributed to our State.
Secondly, the porous border between the U.S. and Mexico is a continuous reminder that reentry laws are seldom enforced and this, in turn, results—as you have stated earlier, Mr. Chairman—in additional victimization and a rapidly increasing criminal alien population.
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Third, existing transfer treaties need to be revised. The treaties are not workable, primarily because they require the consent of the prisoner.
And fourth, identification of potential deportable aliens must occur at the point of arrest and, in any event, early in the criminal justice process. As it is today, a large number of criminal aliens in local facilities never come to the attention of INS, and so they avoid having to go through the formal deportation process.
Lastly, INS must develop an automated system that incorporates positive identification technology like California's criminal alien flagging project. Today, INS cannot provide the numbers, let alone the disposition of felons who are deported from California.
And with that, I am open to questions.
Mr. SMITH. Thank you, Mr. Sandoval.
[The prepared statement of Mr. Sandoval follows:]
PREPARED STATEMENT OF JOE SANDOVAL, SECRETARY, CALIFORNIA YOUTH AND ADULT CORRECTIONAL AGENCY
INTRODUCTION
Good morning, my name is Joe Sandoval, Secretary for the Youth and Adult Correctional Agency, State of California. I have worked closely with Governor Pete Wilson and State and federal criminal justice officials since the early 1990's on criminal alien issues impacting California. I am also the Chairman of the Interstate Criminal Alien Working Group, a component of the United States Department of Justice Criminal Alien Identification and Intervention Program. Governor Wilson has been leading and championing the call for federal attention and resolution to the criminal alien issue and the problem it represents to states.
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I am honored to be invited to testify today regarding the effectiveness of the Enhanced Institutional Hearing Program in California. In addition, I will present some overriding policy issues that are of major concern to the State of California. Finally, I will provide some recommendations for improvement. I appreciate this Committee's interest and concern relative to the impact of criminal aliens on California's prison system, and I welcome this chance to provide you with some information that may help you to address problems associated with this critical issue.
First, is the magnitude of costs and numbers. California currently houses over 152,000 inmates within its 32 correctional institutions. Each of the 32 institutions house an average of approximately 4,500 inmates. Of the 152,000 total inmate population, approximately 15 percent, or 20,000 are criminal aliens. At an annual cost of $20,981 per inmate, this equates to a total cost of almost $420 million just for housing the criminal alien population in prison. These 20,000 criminal alien inmates occupy the equivalent of five overcrowded prisons whose construction costs to house our criminal alien population exceed $1.3 billion at overcrowded levels. These cost figures for California alone are about three times what Congress appropriated for criminal alien reimbursement to cover the entire nation for Federal Fiscal Year 1997. Not included are the costs for arrest, prosecution, trial, local incarceration and other related costs.
CALIFORNIA INSTITUTIONAL HEARING PROGRAM OVERVIEW
The Institutional Hearing Program (IHP) was implemented as a cooperative effort between the California Department of Corrections and the United States Department of Justice, Immigration and Naturalization Service (INS) to conduct deportation hearings for criminal alien inmates. The deportation hearings were established to ensure that criminal aliens are processed for removal from the United States upon the completion of their sentence in State prison.
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On the average, the California Department of Corrections releases approximately 1,000 criminal alien inmates to INS for possible deportation each month. Of the 1,000 inmates released to INS, approximately 400 are processed through the IHP monthly.
When the IHP became operational in 1987, it was implemented on a small scale. Only 100 beds were allocated to this program in a facility located in San Diego County, near the Mexican border. As the program matured, it was expanded to two additional Southern California facilities. With this expansion, the total number of beds dedicated to this program were increased to 900 to process larger numbers of criminal aliens through the IHP.
INS ENHANCED IHP PROPOSAL
In 1995 INS provided a draft proposal for an ''Enhanced Institutional Hearing Program'' for the California Department of Corrections review and consideration. That proposal was never presented as a final document and, therefore, no agreement was ever reached between California and INS. Certain features that INS proposed were unacceptable to California. The major features of the proposal were as follows:
INS would provide additional staff at each of California's 11 prison Reception Centers to interview all suspected foreign born inmates at intake. The additional staff would also make a determination of alien status and place detainers on the criminal alien inmates before the California Department of Corrections transferred them from the Reception Center to an assigned institution.
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This proposal has not been fully implemented.
The INS proposed to eliminate the backlog of ''potential deportable aliens'' by increasing the number of agents in the prisons. The agents would interview potentially deportable aliens to determine alien status. Presently, there is a backlog of about 5,500 potentially deportable alien inmates statewide.
The backlog remains and continues to grow.
INS proposed that workload associated with pre-screening criminal aliens be shifted to the State. As proposed, this activity would become one of the responsibilities of the institution counselors. Pre-screening was intended to identify those inmates who would contest deportation and, thereby, prevent their transfer to IHP facilities. IHP cannot handle contested cases since the program is designed for processing expedited hearings only.
This proposal has not been implemented. It would shift INS workload to California and represents an additional cost to the State which we oppose.
INS proposed that inmates who contest deportation should be housed together in a single facility one year prior to the criminal alien inmate's parole date to accommodate the lengthy hearing process.
This represents additional workload to California, but more importantly it would potentially compromise California's inmate classification and management policies which are essential to maintaining safe and secure prison operations.
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INS proposed that California transport criminal alien inmates to consulate offices to obtain travel documents needed for deportation. The INS indicated a willingness to reimburse California for these transportation costs.
This proposal is an unacceptable corrections practice.
The INS proposed to conduct over 700 hearings per month at the IHP facilities.
This goal has not been achieved. In fact, the average number of IHP hearings per month have declined from 440 in 1995 to 400 in 1997.
Finally, the INS proposed that they would complete criminal alien status investigations and issue an INS hold, as appropriate, within 60 days of the initial interview.
This goal has not been achieved. In fact, the time to complete the criminal alien determination averages 157 days.
Now, I would like to briefly discuss several overriding criminal alien policy issues of importance to California.
1. Criminal Alien Reimbursement
California is very thankful for the work of the members of this subcommittee and the Congress over the past few years to secure additional funding for the State Criminal Alien Assistance Program (SCAAP) to reimburse state and local governments for the costs of incarcerating undocumented criminal aliens. I was especially pleased to learn of recent action taken by the House Appropriations Subcommittee on Commerce, Justice, State, the Judiciary, and Related Agencies to increase funding to $600 million in the coming fiscal year, $100 million over the last two previous years.
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Unfortunately, the costs of this offender population continues to outstrip the SCAAP funds that have been distributed to California. And, to make this situation even more troubling, a recent Court of Appeals ruling has excused the Attorney General from complying with her obligation under Section 241(i) of the Immigration and Nationality Act to take into federal custody any undocumented criminal aliens for whom the State has not been reimbursed. Given these facts, the State will continue to work with the subcommittee to relieve state and local governments from the financial hardships associated with illegal immigration.
2. Failure to Control the Return of Deported Felons
Immigration is a federal responsibility. The porous border between the United States and Mexico is a continuous reminder that INS policy is failing. Re-entry laws are seldom enforced and this, in turn, results in additional victimization and a rapidly increasing criminal alien felon population.
3. Inadequate Transfer Treaty Program
INS must work with appropriate federal agencies to improve existing transfer treaties. Although these treaties allow criminal aliens to serve their prison sentence in their country of origin, these provisions are not workable because they require the consent of the prisoner and provide little incentive for the country of origin to cooperate.
4. Early Identification and Processing of Criminal Aliens
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Identification of potentially deportable aliens must occur early in the criminal justice process; close to the point of illegal entry or at the point of arrest. Moreover, a large number of criminal aliens serve time in local facilities and do not come to the attention of INS, thus avoiding formal deportation.
5. Inadequate Automated Systems
Current federal automated systems lack the ability to meet state and local criminal justice agency information needs concerning criminal aliens. The federal government must develop an automated system that incorporates positive identification technology like California's criminal alien flagging project and its automated fingerprinting identification system. The current system used by INS is simply inadequate. As an example, the INS cannot provide the numbers, let alone the disposition of deported felons from California.
In closing, California recommends that:
INS process detainers within 60 days of the initial interview.
INS implement that portion of the ''Enhanced IHP Proposal'' which provides permanent staff in the California Reception Centers to complete the interviews and investigations and to make the appropriate determination on each inmate's detainer status prior to his or her transfer out of the Reception Center.
INS send teams of investigators to all California Department of Corrections institutions for a one-time cleanup of all unresolved cases, i.e., ''potentials.''
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INS issue a policy statement to require INS staff to complete investigations, regardless of the inmate's location with the California Department of Corrections, and to resolve detainer dispositions when requested to do so.
INS develop a Management Information System to track all inmates who parole from California into INS custody and their ultimate disposition.
The identification of criminal aliens must occur early in the criminal justice process.
The issues of returning deportable felons without prosecution and the porous Mexican border must be corrected.
The Transfer Treaty program must be revamped and made workable.
Thank you.
Mr. SMITH. Ms. Tucker.
STATEMENT OF KELLY TUCKER, CORRECTIONAL SERVICES ADMINISTRATOR, FLORIDA DEPARTMENT OF CORRECTIONS
Ms. TUCKER. Good morning, Mr. Chairman, members of the subcommittee. My name is Kelly Tucker, and I am the Correctional Services Administrator with the Florida Department of Corrections, responsible for the coordination and implementation of the enhanced IHP.
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I will begin my testimony this morning by giving you a very brief history of Florida's IHP, and then I want to identify some of the key issues that the Florida Department of Corrections feel must be addressed in order for IHP to be successful in Florida.
The Florida Department of Corrections, in partnership with INS and EOIR, initiated an effort in 1988 to facilitate the removal of criminal aliens who are amenable to deportation or exclusion proceedings.
As a means to expedite the removal of nonviolent criminal aliens from Florida, Governor Chiles and INS Commissioner Doris Meissner executed a Memorandum of Understanding in April of 1994 establishing the executive clemency initiative. The primary goal of the Governor's clemency initiative is to minimize the burden to Florida taxpayers for the incarceration costs of nonviolent criminal aliens and to free up bed space for the more violent offenders.
On April 17th of 1995, Governor Chiles and INS Commissioner Doris Meissner entered into a formal agreement, thereby establishing what is now known as the Enhanced IHP in Florida. The primary purpose of this program is to further expedite the identification of deportable aliens and hasten the immigration hearing process for those alien inmates incarcerated in Florida prisons, so that their immediate removal can be accomplished upon completion of their sentence.
This agreement refined and expanded the initial procedures that were established in 1988. Shortly after the enhanced IHP agreement was signed in 1995, the Miami district INS office came under investigation by the U.S. Department of Justice for alleged misdeeds which diverted the focus away from further refinement of the IHP program.
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For example, the Krome Service Processing Center, which is responsible for picking up our inmates with detainers, still has key administrative positions working in an active capacity on a frequently rotating basis. As a matter of fact, our staff have met with this rotating staff at least twice this year. They have been acting on a 90-day rotation basis. This situation has only added to the problems the department has already encountered in attempting to implement the Enhanced IHP in Florida.
The following issues are identified by the department as those issues that need to be addressed in order for our IHP to be successful: One is to reconcile the status of all suspected foreign-born inmates in the department's custody. Out of the 4,867 inmates we currently have that are suspected or confirmed aliens in our custody, 1,406 have not yet been confirmed by INS.
In addition, INS is not notifying the department within 90 days, as required in our IHP, regarding the immigration status of all foreign-born inmates who are admitted to the department, to either express their interest by the filing of a charging document and detainer or by expressing their noninterest by filing a nondetainer.
Although INS is currently interviewing all suspected foreign-born inmates within 5 days of their entering our prison system, they are not getting back to us within the 90 days to file the charging document, and in many cases, it is within 6 months or even sooner of an inmate's expiration of sentence before we ever get a detainer, if we get a detainer at all.
Two, I would like to mention that we need to improve communication and cooperation between INS and the department regarding the IHP. Although routine communication has improved over the past several months as a result of several meetings with INS, communication problems still exist.
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For example, INS has established an IHP director to work with myself and other members with the Department of Corrections. However, there has been minimal communication with department staff from this director since his appointment.
Additionally, as I mentioned before, changes in key personnel at Krome has made it difficult for our staff to establish a permanent point of contact to coordinate the daily activities regarding inmate pickup and release.
A third issue that needs to be addressed is to complete the immigration hearing process prior to an inmate's release from the department's custody. A significant number of inmates are still being released from the department's custody prior to having completed the immigration hearing process.
Based on my experience in this program, I would attribute—I would attribute the majority of that to the fact that INS is still filing last-minute detainers on inmates who are just now getting ready for release—who are just meeting their expiration of sentence.
In addition, what is further exacerbating the problem is, INS is withdrawing detainers at the last minute on certain aliens, particularly Cubans, in Florida. When they place a detainer, we have to go through a number of procedures to get that inmate ready for an INS release—medical screening, interviewing and whatnot. When INS withdraws a detainer at the last minute, we have gone through a lot of expense in transporting the inmate to a release site and preparing the inmate for an INS release. So that complicates our problems as well.
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Another problem is to expedite the appeal process under the IHP while the inmate is still in State custody. Appeals of orders of deportation can take a very long time. It has been my experience that it can take a year or even longer once an inmate has filed an appeal of his order of deportation. That is particularly a problem for us in clemency cases, because the primary goal of clemency is to remove the alien as soon as the Governor and cabinet approve his/her clemency in order to save the taxpayers dollars for incarceration costs. So that is a real concern to the department.
We also are not getting timely notification from the Board of Immigration Review in Falls Church, Virginia, regarding final disposition of an appeal, and that causes us a lot of administrative problems.
Lastly, I would just mention that we feel that there needs to be improved coordination of inmate pickup from one of our 15 release sites that we currently have designated under our IHP. INS is not coordinating their pickups well with our institutions. They are not giving ample notice to the institutions. In many cases, they merely show up and say, we are here to pick up, you know, inmates X, Y, and Z; and because of the time it takes for our inmates to be prepared for release, that causes a real problem for our staff.
And, again, as I mentioned before, INS is withdrawing its detainers. There have been some detainers withdrawn on Cubans that we feel are a threat to the community, and when they are released to the community, we end up seeing them again back in our system and, of course, that is a burden to the taxpayers of Florida, and we feel that is a problem.
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The concerns that I have just expressed to you have been expressed to INS, and as a result, there was an audit recently conducted in Florida a couple of months ago. We have yet to see the results of that audit that was conducted by key administrators with INS. We are hopeful that our program will improve.
Mr. SMITH. Okay.
Ms. TUCKER. Thank you. I will entertain any questions that you might have.
Mr. SMITH. Appreciate it.
[The prepared statement of Ms. Tucker follows:]
PREPARED STATEMENT OF KELLY TUCKER, CORRECTIONAL SERVICES ADMINISTRATOR, FLORIDA DEPARTMENT OF CORRECTIONS
BACKGROUND SUMMARY
The Florida Department of Corrections (''the department''), in partnership with the U.S. Immigration & Naturalization Service (INS) and the Executive Office for Immigration Review (EOIR),initiated an effort to facilitate the removal of criminal aliens in 1988 who were amenable to deportation or exclusion proceedings. Initially, only those cases that involved aliens illegally in the United States were considered under the hearing program and were subsequently heard at a designated hearing site. A major obstacle was removed in January of 1994, when EOIR rescinded the requirement that an alien have at least one year to serve on his sentence before being considered for the program. The Governor's Clemency Initiative and the Enhanced Institutional Hearing Program, were later established as part of
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Florida's overall Criminal Alien Removal Program in an effort to further expedite the removal of criminal aliens from the United States.
GOVERNOR'S CLEMENCY INITIATIVE
As a means to expedite the removal of non-violent criminal aliens from the United States, specifically Florida, Governor Chiles proposed an innovative initiative relying upon his constitutional prerogative to grant conditional commutations of sentence, subject to the approval of at least three members of the Florida Cabinet. This initiative was executed through a Memorandum of Understanding (MOU) that was signed by Governor Chiles and INS Commissioner, Doris Meissner on April 7, 1994 (see attached MOU). This MOU established procedures, whereby inmates who are non–U.S. citizens, who have been convicted of non-violent crimes, and who are within certain time frames prior to their expiration of sentence, may be eligible to receive a conditional commutation of sentence by the Governor and Cabinet who sit as the Board of Executive Clemency. Clemency initiatives are typically scheduled in March and September of each year.
The primary goal of the Governor's clemency initiative is to minimize the burden to Florida taxpayers for the incarceration costs of non-violent criminal aliens and to free-up bedspace for the more violent criminals. Should the alien return, he or she is subject to federal prosecution and incarceration for illegal re-entry, and revocation of clemency. (Additional safeguards have been developed for this initiative as identified in the attached MOU.)
To date, there have been a total of 502 criminal aliens considered for clemency. Of these, 457 criminal aliens have been granted conditional commutation of sentence, 15 denied clemency and 30 that remain under advisement. In addition, as of June 30, 1997, there have been 422 criminal aliens deported in accordance with the terms and conditions of clemency. (As of today, 12 criminal aliens have been apprehended for illegal re-entry after deportation and are either in federal custody serving out there federal sentence or are pending federal prosecution.)
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ENHANCED INSTITUTIONAL HEARING PROGRAM
On April 17, 1995, Governor Chiles, and INS Commissioner, Doris Meissner, entered into a formal agreement which established the Enhanced Institutional Hearing Program (EIHP) in Florida. The primary purpose of this program is to further expedite the identification of deportable aliens and hasten the immigration hearing process for those alien inmates incarcerated in Florida prisons so that their immediate removal from the US can be accomplished upon completion of their sentence. This agreement refined and expanded the initial procedures established in 1988.
Under the EIHP, the Florida Department of Corrections (the ''department'') and the Miami District Office of the Immigration & Naturalization Service (INS) have developed procedures regarding the notification of INS regarding ''suspected'' foreign-born inmates; movement of the ''confirmed'' foreign-born population to designated hearing sites; and movement of these foreign-born inmates to designated release sites within 45 days of their expiration of sentence. These procedures were designed to address the public safety needs of the citizens of Florida and ensure the security within the department.
CURRENT EIHP OPERATING PROCEDURES
The department has three intake centers for males inmates who are court ordered to serve a state sentence. These centers include: North Florida Reception Center (NFRC) in Lake Butler; Central Florida Reception Center (CFRC) in Orlando; and South Florida Reception Center (SFRC) in Miami. The department two intake centers for female inmates include: Florida Correctional Institution in Lowell and Broward Correctional Institutional in Pembroke Pines. Each of these centers are services by INS Special Agents working out of the District of Suboffices.
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The department's Classification Specialists at the Reception Centers refer all ''suspected'' foreign-born inmates to INS Special Agents who conduct record checks to determine whether the inmate is an alien subject to administrative removal proceedings.
Approximately 60 inmates per month are being referred to INS Special Agents by department staff. In addition, any inmate who is discovered after the reception process to be a possible alien is referred to INS for an interview. This number fluctuates since most inmates are identified and subsequently interviewed at the reception centers before they are transferred to a permanent institution.
According to the procedures outlined in the EIHP, INS must respond to the department with a notice of ''no interest'' within 5 days of receiving information from the department on a foreign-born inmate if that inmate is not amenable to removal proceedings. For those cases which are not immediately identifiable as ''no interest'', INS must provide a response to the department within 90 days, indicating that there is no interest or by the filing of a detainer and charging document.
EIHP HEARINGS AND HEARING SITES
There are currently 7 hearing sites designated under the EIHP in Florida. There is at least one hearing site in each of the department's five regions of Florida. Televideo hearings have been conducted in Region two since August of 1996 as a pilot project with the Miami District of the Executive Office for Immigration Review (EOIR) and the Miami District Office of the U.S. Immigration & Naturalization Service (INS). All parties believe this pilot has been successful in accomplishing the required in-person deportation or exclusion hearing. The department is currently exploring the possibilities of expanding the use of this technology to other areas in Florida in an effort to reduce the need to transport inmates to designated hearing sites. This also appears to be a time saver and provide a cost savings to INS and EOIR.
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A concept that was initially developed under the EIHP by the department, in partnership with the Miami District INS Office and the Miami District of the EOIR, was to conduct telephonic ''master calendar'' hearings at the institution which housed the alien inmate. This reduced the need to transport alien inmates to designated hearing sites for the purposes of a master calendar hearing. This has also allowed the judge and INS attorneys to conduct hearings without having to travel.
INS DETAINER RELEASES AND RELEASE SITES
When an alien is ready for release from the department's custody to an INS detainer, department staff notifies either the Krome Processing Center in Miami or the INS District Office in Orlando to arrange pick-up. Alien inmates at institutions within Regions 1 through 3 are picked-up by Detention Enforcement Officers (DEOs) out of the Orlando INS District Office and alien inmates in Regions 4 and 5 are picked-up by DEOs out of Krome. Approximately 50–65 alien inmates are normally released each month to INS detainers.
In order to facilitate INS efforts in picking up the alien inmates prior to the expiration of sentence, the department has agreed to allow INS to pick-up alien inmates up to ten days prior to their expiration of sentence and to reduce the number of release sites from 46 to 15. INS pick-ups are accomplished on a weekly basis from each of the designated release sites. The following release sites have been designated under the EIHP:
Region One
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Jackson Correctional Institution
Okaloosa Correctional Institution
Jefferson Correctional Institution
Region Two
Columbia Correctional Institution
Florida State Prison
Union Correctional Institution
Region Three
Marion Correctional Institution
Brevard Correctional Institution (youthful offenders only)
Florida Correctional Institution (female offenders only)
Region Four
Dade Correctional Institution
Martin Correctional Institution
South Florida Reception Center
Broward Correctional Institution (female offenders only)
Region Five
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Hendry Correctional Institution
Hardee Correctional Institution
The number of hearing and release sites is a direct response to the concerns the Florida Department of Corrections has expressed about the security of its facilities. The majority of the department's facilities are ''open-bay'' facilities which house up to 200 inmates per dormitory. The department maintains that this type of housing does not lend itself easily to the separation of large groups of alien inmates, especially those aliens who do not wish to be deported. Florida does not have sufficient secure housing to separate aliens within one or two facilities; therefore, the department has chosen to keep aliens who are scheduled for release and deportation scattered throughout the state at designated release sites. The department views what happened during alien inmate disturbances at Oakdale, Talladega and Atlanta as a warning not to congregate large numbers of aliens together.
OBSTACLES ENCOUNTERED UNDER THE EIHP
Shortly after the formal EIHP agreement was signed in April 1995, the Miami District INS Office came under investigation by the U.S. Department of Justice for alleged misdeeds which diverted the focus away from the further refinement of the EIHP. The Krome Service Processing Center, which is responsible for inmate pick-ups, still has certain key administrative positions working in ''acting'' capacity on a frequent rotating basis. This situation has only added to the problems the department has already encountered in attempting to implement the EIHP in Florida.
The following issues have been identified by the department as significant obstacles to the successful implementation of the EIHP.
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Reconcile the status of all ''suspected'' foreign-born inmates in the department's custody
INS is not notifying the department within 90 days of the immigration status of all foreign-born inmates who are admitted to the department to either express their interest by the filing of a detainer and charging document or to express their non-interest. Although INS is currently interviewing all ''suspected'' foreign-born inmates within 5 days of there entering Florida's prison system, it may take months and sometime years before an actual detainer and charging document is filed against the inmate. In some instances, INS is filing detainers within days of an inmates actual release from prison. In addition, when INS files last minute detainers on Cuban Mariels they may turn around the following day and withdraw the detainer. This frustrates the department because the inmate has in most cases already been moved to a release site.
To assist INS in the identification of those ''suspected'' alien inmates in the department's custody, staff is sending a computer generated list once a month to INS which identifies all ''suspected'' alien inmates that are to be released from the department within 90 days.
Improve communication and cooperation between INS and the department regarding the EIHP
Although routine communication has improved over the past several months as a result of several meetings with INS, communication problems still exist. For example, INS has established an EIHP Director to work with designated department staff to coordinate all EIHP issues; however, there has been minimal communication with department staff from EIHP Director.
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Additionally, the changes in key personnel at the Krome Service Processing Center have made it difficult for department staff in terms of establishing a permanent point of contact regarding detainer pick-ups. For instance, several department staff have traveled to the Krome Service Processing Center on at least two occasions to meet with the ''acting'' administrators to discuss release procedures under the EIHP and the Governor's Clemency Initiative, evidencing on-going problems with continuity.
Complete the immigration hearing process prior to an inmates release from the department's custody
A significant number of inmates are still being released from the department's custody prior to having completed the immigration hearing process under the EIHP. In some cases this is as a result of detainers being filed close to the inmate's expiration of sentence.
Expedite the appeal process under the EIHP while the inmate is still in the state's custody.
An appeal of an Orders of Deportation that is filed by an inmate in the state's custody with the Board of Immigration Review in Falls Church, VA appears to take a long period of time before a resolution is reached. In addition, the department is not receiving timely notification of final dispositions. This is of special concern to the department in clemency cases.
Transport inmates with INS detainers to designated release sites
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The department has been moving inmates with detainers to designated release sites within 45 days of their release; however, INS is withdrawing its detainer on some inmates at the last minute causing the department unnecessary work and expense in transporting and preparing the inmate for an INS detainer release.
CONCLUSIONS
Concerns expressed by the department to INS resulted in a recent audit being conducted by an audit team comprised of key staff from INS Headquarters to review Florida's EIHP. The problems that have been identified above were shared with the audit team. The department has not yet been notified by INS of the findings and/or recommendations resulting from this audit.
The Florida Department of Corrections recognizes the importance of having a effective criminal alien removal program in the State of Florida. The department looks forward to the continued partnership with the U.S. Department of Justice in expediting the identification and removal of criminal aliens from the United States.
INSERT OFFSET RING FOLIOS 7 TO 11 HERE
Mr. SMITH. Mr. Annucci.
STATEMENT OF ANTHONY J. ANNUCCI, DEPUTY COMMISSIONER AND COUNSEL, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES
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Mr. ANNUCCI. Thank you, Mr. Chairman and members of the committee. Good morning. Thank you for opportunity to be here today on behalf of the New York State Department of Correctional Services to offer testimony about an issue of great importance not only to all New Yorkers, but to all Americans as well, that issue being the conduct and operation of the Institutional Hearing Program.
I am Anthony J. Annucci, the Deputy Commissioner and Counsel for the department. And in my capacity as Deputy Commissioner and Counsel, I am responsible for all the services necessary for the day-to-day operations of the department, which has an annual combined operations and capital budget of approximately $2.2 billion, houses approximately 70,000 inmates convicted of felonies and convicted to State imprisonment; operates 69 different correctional facilities scattered throughout the four corners of the State, and employs approximately 30,000 individuals.
With me here today is David Clark, a Research Specialist from the department's Program, Planning and Research Unit, who serves as the department's direct liaison to the IHP.
In such capacity, Mr. Clark has a thorough nuts-and-bolts understanding of both the successes and the failures of the IHP in New York.
As is the case with nearly every other large correctional system in the country, the New York State Department of Correctional Services is presently operating significantly over its original design capacity, faces the prospect of continued and unabated growth in the overall demand for prison space for the foreseeable future, and must contend with contempt proceedings and millions of dollars in fines paid to various counties for housing inmates who legally belong in State prison. Since prison space is at a premium, the department must do everything in its power to maximize the utilization of its existing bed space.
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Although the IHP actually originated in New York in 1996, it was not until April of 1994 that the IHP was put into place. By way of background, in the early 1990s, the department had commenced a lawsuit against the Federal Government seeking to have Federal officials assume custody of certain criminal aliens in State prison or released on parole. Thereafter, a meeting was convened between the department's commissioner and Attorney General Janet Reno, who offered, as a means of resolving the lawsuit to the mutual satisfaction of both sides, to enhance the IHP in New York and make it the most efficient and productive it could possibly be.
For its part, New York built model courtrooms in two of its male reception centers and provided new office space for use by INS personnel. The department also provided the INS with limited access to its on-line computer database, and copies of legal documents in the department's possession concerning inmate crimes of commitment, as well as access to the inmates themselves, are routinely provided to the INS.
It should be noted that in response to the claim by the INS that the documents supplied by the department did not contain sufficient specificity to support a deportation charge, New York instituted two changes. First, in 1995, New York changed its law to require the commitment document accompanying an inmate to State prison to not only specify the crime of conviction and sentence imposed, but to also set forth the section, and to the extent applicable, the subdivision paragraph and subparagraph of the penal or other statute upon which the defendant was convicted.
In addition, the deputy chief administrative judge of New York City recently sent a memorandum to the city's chief clerks, advising them in all drug or weapons cases to specify on the commitment orders the type of drug or weapon that the defendant was convicted of selling or possessing. Obviously, such measures are intended to relieve INS investigators from the burden of independently having to obtain conviction records from the courts in addition to the records already being acquired from the department.
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The IHP represents a significant opportunity for the department to achieve desperately needed bed space savings. Pursuant to a 1995 change in New York's law, which was based in large part upon expectations about the IHP, criminal aliens convicted of nonviolent felonies who receive final orders of deportation can be paroled to the custody of the INS to be deported at any time in their sentences.
In addition, violent felony offenders who might otherwise remain in prison beyond their initial parole eligibility dates because of public safety considerations can also be paroled to the INS to be deported.
Under New York's law an alien inmate paroled to the custody of the INS cannot be released to the community. If for any reason the deportation does not take place, the inmate must be returned to prison to continue serving his sentence of imprisonment.
Because of these potential savings, the department committed significant time, effort, resources and manpower towards making the IHP the most efficient and productive initiative it would possibly be.
The IHP also represents a unique opportunity for Federal officials working within the INS and the EOIR to perform their core responsibilities. Since the IHP works within the confines of the prison system, the State performs most of the requisite logistical tasks for the program by housing the alien inmates while initial investigation and charging responsibilities are undertaken, providing relevant criminal records which form the basis for the deportation proceedings and producing the alien inmates at the hearing sites within the designated correctional facilities.
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In 1994, when New York was working with Federal officials to institute the Enhanced IHP, Attorney General Janet Reno stated in a letter to the department's commissioner, and I quote, ''We want to establish a criminal alien program in New York which can serve as a model for effective State and Federal cooperation nationwide. Your willingness to roll up your sleeves with us to meet this challenge is the key to our success.'' Unfortunately, despite all the significant efforts that have been expended by the department for the past 3 years, the productivity measures generated under the IHP leave much to be desired.
The failures by the INS fall into several categories. The first is an informational failure. The department needs the alien status and alien registration number information generated by the INS when an inmate enters department custody through a reception center. This information is used for security purposes and is required by INS headquarters to verify the States' requests for reimbursement under the State criminal alien assistance program. Despite the fact that the New York City district office had provided the department with alien status and alien registration numbers, INS headquarters was unable to verify this information on its national databases for 45 percent of the 1995 SCAAP cases submitted by the department.
This problem was particularly evident with regard to the Mariel Cubans since two-thirds of the cases that INS denied for reimbursement under SCAAP in 1995 had been verified as Mariel Cubans in 1993, under the Mariel reimbursement program.
The second category of failures by the INS with the IHP is the failure of process. When the 1995 law went into effect, allowing for early paroles for deportation, alien inmates convicted of nonviolent felonies who wished to come under the law wrote hundreds upon hundreds of letters asking to be processed through the IHP so that they could receive final orders of deportation and possibly be paroled for purposes of deportation. All of these letters were routinely forwarded to the Federal officials with the IHP.
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Many of these inmates wrote for a second or a third time, indicating that no action was ever taken by the INS upon their requests. Moreover, during the summer of 1996, it came to the department's attention that the number of charging documents filed by the INS with the EOIR had dropped dramatically in June and July.
The IHP has serious problems. In closing, the discrepancy between data contained on INS national databases versus data provided by the INS district level is disconcerting at best.
The department is committed to the public safety goal of the IHP of removing criminal aliens from the United States. We have been and continue to be willing to work cooperatively with the INS to improve it. However, we are not in a position to ascertain exactly what the causes of the INS failures are.
These failures may be caused by an insufficient allocation of resources to the program, a failure by some program officials to perform to expectations, a failure by program officials to work in a coordinated fashion, a failure by INS headquarters in Washington to provide needed support; or a combination of all or any of these reasons. What is clear is that unless a high-ranking official from the Justice Department, such as a Deputy Attorney General, is specifically assigned to ascertain the causes of the problems and to devise a solution and ensure that it is implemented, then the IHP in New York will never live up to the goals and expectations articulated by Attorney General Janet Reno.
Thank you. And if there are any questions, I or David Clark will be happy to answer them.
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[The prepared statement of Mr. Annucci follows:]
PREPARED STATEMENT OF ANTHONY J. ANNUCCI, DEPUTY COMMISSIONER AND COUNSEL
OVERVIEW
As is the case with nearly every other large correctional system in the country, the New York State Department of Correctional Services is presently operating significantly over its original designed capacity, faces the prospect of continued and unabated growth in the overall demand for prison space for the foreseeable future, and must contend with contempt proceedings and millions of dollars in fines paid to various counties for housing inmates who legally belong in state prison. Since prison space is at a premium, the Department must do everything within its power to maximize the utilization of its existing bed space.
The Institutional Hearing Program (IHP) represents a significant opportunity for the Department to achieve desperately needed bed space savings. In New York, criminal aliens convicted of non-violent felonies who receive final orders of deportation can be paroled to the custody of the Immigration and Naturalization Service (INS) to be deported at any time in their sentences. In addition, violent felony offenders who might otherwise remain in prison beyond their initial parole eligibility dates because of public safety considerations, can also be paroled to the INS to be deported. Because of these potential savings, the Department committed significant time, effort, resources and manpower toward making the IHP the most efficient and productive initiative it could possibly be.
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The IHP also represents a unique opportunity for federal officials working within the INS and the Executive Office of Immigration Review (EOIR) to perform their core responsibilities. Since the IHP works within the confines of the prison system, the state performs most of the requisite logistical tasks for the program by housing the alien inmates while initial investigation and charging responsibilities are undertaken, providing relevant criminal records which form the basis for the deportation proceedings and producing the alien inmates at the hearing sites within the designated correctional facilities.
Unfortunately, despite all of the significant efforts that have been expended by the Department for the past three years, the productivity measures generated under the IHP leave much to be desired. The Department does not know whether the problem is caused by a failure to allocate sufficient resources to the program, a failure by some program officials to perform to expectations, a failure by program officials to work in a coordinated manner, a failure by Washington to provide the necessary support to make the program a success, or a combination of some or all of these reasons or some other reasons. What is clear is that unless a high-ranking official from the Justice Department is specifically assigned to get to the bottom of the problem, devise a solution and ensure that it is properly implemented, the IHP in New York will continue to operate in a less than stellar fashion.
Growth of the Foreign-Born Prison Population
The number of inmates under the custody of the New York State Department of Correctional Services on December 31, 1996 was 69,684. Approximately 13 percent (or 9,052) of these inmates claimed birth in a foreign country.
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By comparison, the Department's under custody population on April 1, 1985 was 34,617. Approximately 8 percent (or 2,629) of these inmates claimed birth in a foreign country. Therefore, during the nearly twelve year period between April 1, 1985 and December 31, 1996 the number of foreign-born inmates under the Department's custody increased by 6,423 inmates.
While the numerical increase in foreign-born inmates under the Department's custody is striking, it does not provide a complete picture of the problem. Between April 1, 1985 and December 31, 1996 the number of inmates born in the United States increased 93 percent. In contrast, the number of foreign-born inmates increased by 244 percent, or nearly two and one-half times the percent increase in native-born inmates during the same time period.
Characteristics of the Foreign-Born Prison Population
The characteristics of the foreign-born prison population vary across the states. For example, the foreign-born prison population in the State of California is reportedly comprised primarily of illegal (i.e., undocumented) criminal aliens. In contrast, the foreign-born prison population in New York State consists of both illegal aliens and legal permanent residents, but is primarily comprised of legal permanent residents.
While recent federal attention has been focused on the issue of illegal aliens in particular, it must be remembered that many legal permanent residents are defined under federal law as criminal aliens by virtue of their conviction for a criminal offense. Therefore, in New York State, the criminal alien problem encompasses both illegal aliens as well as legal permanent residents. In fact, the INS estimated in its Institutional Hearing Program (IHP) Status Report for fiscal year 1996 that 80 percent of New York State's foreign-born prison population is deportable.
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The State's Response
The enforcement of immigration law is unarguably a federal responsibility. The growth of the foreign-born prison population, therefore, is a problem that must be addressed at the federal level; specifically by the INS. Historically, the INS has failed to adequately respond to the criminal alien problem in New York State.
Consequently, since the early 1980's, beginning with the influx of criminal Mariel Cubans into the New York State prison system, New York has requested the federal government to deal with the criminal alien problem in two interrelated ways. First, the federal government should reimburse the states for financial losses related to incarceration costs incurred as a result of the INS's failure to enforce the immigration law. Second, the federal government should assume and maintain custody of all deportable criminal aliens incarcerated in the State prison system.
The Request for Reimbursement. With regard to the State's request for reimbursement, Congress had authorized federal reimbursement to the states as early as 1980 in response to the criminal Mariel Cubans that INS had released into American communities. Despite this authorization, Congress did not actually appropriate reimbursement funds until federal fiscal year 1986. Subsequent funding of the Mariel Cuban Reimbursement Program was authorized under Immigration Reform and Control Act (IRCA) of 1986 and permitted states to request reimbursement for the costs of incarcerating both Mariel Cubans and illegal aliens. Congressional appropriations, however, only funded states' reimbursement requests for Mariel Cubans. It should also be noted that the identification of Mariel Cubans was of great concern to the Department not just for purposes of federal reimbursement, but also for security reasons given the violent history of the criminal Mariel Cubans in institutional settings.
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Concomitantly in 1986, the Executive Office for Immigration Review (EOIR) established a pilot program in the New York State prison system in which exclusion and deportation hearings were conducted in an institutional setting. The program was referred to as the Institutional Hearing Program. The purpose of the IHP was to complete the exclusion or deportation hearing process prior to the release of the criminal alien from the Department's custody.
Initially, these proceedings were held for one week per month in the Department's maximum security reception center in Fishkill, New York. The pilot program was gradually expanded to include seven of the Department's correctional facilities. Unfortunately, even with the expansion of the IHP, the program had two shortcomings. First, only a small proportion of the foreign-born under custody population was processed under the IHP. Second, the IHP was unable to meet its goal of completing exclusion or deportation proceedings for all of those deportable criminal aliens selected for processing prior to their release from the Department's custody.
To summarize, New York has historically relied upon INS to provide alien status information for purposes of federal reimbursement, institutional security, and the promotion of public safety through the removal of criminal aliens from the United States under the IHP. Therefore, there has traditionally been a nexus between New York's request for federal reimbursement for the incarceration of deportable criminal aliens and the functions that INS performs under the IHP.
The Request for Assumption of Federal Custody. During calendar year 1992, only 40 percent of the foreign-born releases from the Department's custody were released to the custody of INS. Given the INS estimate that 80 percent of the foreign-born prison population in New York was deportable, it would appear that INS had failed to take custody of at least half of the criminal aliens that it was responsible for. Moreover, criminal aliens released to the custody of INS are not necessarily immediately deportable since many have not received final orders of deportation.
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The INS failure to take all criminal aliens into custody upon release from the Department appears to be in direct violation of federal law. For example, under the Anti–Drug Abuse Act of 1988, and subsequent revisions enacted in 1990 and 1991 the Attorney General was required to take into custody
''. . . any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense). Notwithstanding paragraph (1) or subsections AF and (d) of this section but subject of subparagraph (B), the Attorney General shall not release such felon from custody.'' [8 U.S.C.A. 1252 (a)(2)(A)]
On the basis of this statute, on February 24, 1992, the Commissioner of the New York State Department of Correctional Services sent a letter to officials of the United States Immigration and Naturalization Service formally demanding that they accept and maintain custody of three classes of illegal alien inmates: (1) aggravated felons who are conditionally released to INS for purposes of deportation only, (2) aggravated felons who are to be released on parole, and (3) aggravated felons who are on supervised release. This demand letter specified 5 inmates in each category and provided INS with their scheduled dates of release. The letter further stated that if INS failed to accept and maintain custody of the specified inmates, the State of New York would file a complaint in Federal Court seeking declaratory, injunctive and mandamus relief for the violations of Federal statutes by the INS.
The INS did not officially respond to the ''demand letter'' and did not accept custody of the specified inmates on the scheduled dates of release. As promised in the demand letter, the State of New York filed a complaint on April 27, 1992 in the United States District Court, Northern District of New York.
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Several law suits were initiated by other states during 1992 and 1993. It was in this litigious atmosphere that the United States Department of Justice offered to enhance the IHP in New York and in other states. Attorney General Reno candidly admitted that the United States Department of Justice did not have the resources to take custody of the classes of criminal aliens named in New York's complaint. What the Attorney General did promise was to devote more resources to the IHP, thereby increasing the number of deportable criminal aliens who could be expeditiously deported by INS upon their release from State custody. In return, New York would hold its complaint in abeyance pending an assessment of the Attorney General's good faith effort to ease the prison bed space problems in New York attributable to criminal aliens. In a letter to the Commissioner, the Attorney General said, and I quote, ''We want to establish a criminal alien program in New York which can serve as a model for effective State and Federal cooperation nationwide. Your willingness to roll up your sleeves with us to meet this challenge is the key to our success.''
New York's Commitment to the IHP
New York agreed to the Attorney General's proposal. For its part, New York built new court rooms in two of its male reception centers and new office space for INS personnel. The Department also provided INS with limited access to its on-line computer data base and copies of legal documents that INS requires to establish deportability. Since the implementation of the enhanced IHP in April 1994, the Department has also provided INS personnel with free tuberculosis testing and low cost hepatitis–B vaccinations, access to Department firing ranges for qualification purposes, and facility safety training.
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The Department, therefore, has allocated a significant amount of resources to the IHP. However, given the significant problems related to the operation of the IHP from its enhancement in April, 1994 to the present, it would appear that INS has not allocated sufficient resources to the IHP.
INS Continued Failure to Document Alien Status
As mentioned above, the Department needs the alien status and alien registration number information obtained by INS when an inmate enters Department custody through a reception center. This information is used for security purposes and is required by INS Headquarters to verify the State's requests for reimbursement under the State Criminal Alien Assistance Program (SCAAP).
Despite the fact that the New York City INS District Office had provided the Department with alien status and alien registration numbers, INS Headquarters was unable to verify this information on its national data bases for 45 percent of the 1995 SCAAP cases submitted by the Department. This problem was particularly evident with regard to the Mariel Cubans since two-thirds of the cases INS denied for reimbursement under SCAAP in 1995 had been verified as Mariel Cubans in 1993 under the Mariel Cuban Reimbursement Program.
The Department received the results of its 1995 SCAAP requests for reimbursement only a few months prior to the application deadline for the 1996 SCAAP application. In an effort to address security concerns and to ensure the accuracy of the Department's 1996 SCAAP reimbursement requests, the Department formally asked the New York City INS District Director to verify that information provided to the Department through the IHP on 2,800 cases to be submitted under SCAAP existed on national INS data bases. INS Headquarters' directed the New York City INS District Director to refuse the request arguing that SCAAP and the IHP were unrelated programs.
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INS Failure to Charge and Track IHP Cases
In July, 1995, New York passed the Sentencing Reform Act. One of the components of the Act permitted non-violent felony foreign-born offenders to be released prior to the completion of their minimum sentence to the custody of INS for purposes of deportation if they had a final order of deportation lodged against them. Since the inception of this law, the Department has received approximately 30 letters per month from foreign-born inmates expressing their willingness to accept an order of deportation. The Department provides copies of these letters to INS assuming that INS will take the appropriate action. However, many of the inmates who write to the Department write a second and third time indicating that INS had not even responded to their requests.
Moreover, during the early summer of 1996, it also came to the Department's attention that the number of charging documents filed by INS with EOIR had dropped dramatically in June and July, 1996. The decline in charging documents meant that fewer deportation orders would be produced, thereby reducing the bed savings expected by the Department. In addition, the lowered caseload resulted in the furloughing of IHP judges by EOIR at a time when the Department had just completed construction on a second courtroom in one of the male reception centers.
The failure of INS to respond to inmate requests for expedited deportation hearings and the concurrent decline in the production of charging documents by INS indicated that a serious problem existed with the IHP. Consequently, in November, 1996 the Department tracked all foreign-born inmates admitted to Department custody in October, 1995 through the two male reception centers housing the IHP. After the cases that did not appear to be amenable to deportation were removed, a one-year follow up evaluation indicated that INS had lodged a warrant or detainer on only one-half of the potentially deportable cases. The evaluation further indicated that 68 percent of the cases had not yet appeared before an Immigration Judge while under the Department's custody. It is not surprising, therefore, that INS assumes custody of only 50 percent of the annual foreign-born releases from the Department, and 36 percent of those cases INS does take custody of do not appear to have completed exclusion or deportation proceedings.
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CONCLUSION
In conclusion, New York State has historically maintained that the federal government should reimburse the States for financial losses related to incarceration costs incurred as a result of the INS's failure to enforce the immigration law. The State has also maintained that the federal government should assume and maintain custody of all deportable criminal aliens incarcerated in the State prison system upon their discharge from incarceration.
The IHP is the center piece of these two strategies for addressing the growth in the State's criminal alien prison population. The IHP process commences with the identification of the alien status of foreign born inmates. This addresses the Department's security concerns and generates the information which the INS requires to validate Department requests for reimbursement under SCAAP. The investigation and litigation processes of the IHP are designed to expedite the charging of criminal aliens with deportation and the presence of Immigration Judges in Department facilities is designed to generate final orders of exclusion or deportation prior to the criminal alien's release from the Department's custody. Finally, the presence of INS detention and deportation officers at the Department's reception centers is designed to permit a seamless release from Department custody to the INS.
However, despite the stated goals of the IHP, there clearly are serious problems as evidenced by the disappointing productivity feedback. The discrepancy between data contained on INS national data bases versus data provided at the INS District level is disconcerting at best. The failure of INS to generate sufficient charging documents to enable the Immigration Court to maintain a full-time case load is also disheartening. And finally, INS's apparent inability to process all criminal alien admissions to Department custody prior to their release suggests that INS may not have allocated sufficient resources to its case management process.
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The State and the Department are committed to the public safety goal of the IHP of removing criminal aliens from the United States. The Department has been, and continues to be, willing to work cooperatively with the INS to improve the IHP. The Department is not in a position to ascertain exactly what the causes of the INS's failures are. These failures may be caused by an insufficient allocation of resources to the program, a failure by some program officials to perform to expectations, a failure by program officials to work in a coordinated fashion, a failure by INS Headquarters in Washington to provide needed support, or a combination of any or all of these reasons or some other reasons.
While there are clearly shortcomings in the IHP at the present time, these shortcomings can be, and should be ameliorated by making the removal of criminal aliens an INS priority. More importantly, however, unless a high-ranking official from the Justice Department, such as a Deputy Attorney General, is specifically assigned to ascertain the cause of the problems, devise a solution and ensure that it is properly implemented, then the IHP in New York will never live up to the goals and expectations articulated by Attorney General Janet Reno.
Mr. SMITH. Thank you, Mr. Annucci. That was a very full 5 minutes. I appreciate your testimony.
The director from Texas, Ms. McVey.
STATEMENT OF CATHERINE C. McVEY, ASSISTANT DIRECTOR, PROGRAMS AND SERVICES DIVISION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE
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Ms. MCVEY. Thank you, Chairman Smith and committee members, for this opportunity today to go through our Texas experience with the IHP. Our partnership thus far has been a good one, and as I sat here and kind of listened down the table, I feel that our experience has been significantly different thus far than some of our other States' experience.
My name is Catherine McVey. I am the Assistant Director of the Texas Department of Criminal Justice. I have been with the agency 24 years, and coordination of the crime bill and the SCAAP process and coordinating with the IHP is one of nine functions which I have oversight for.
Today I am going to attempt to give a very succinct overview of our IHP experience. I will talk a little bit about the procedural interface and share with you some of the most important statistics which I think establish the success of the IHP system in Texas. For us, the IHP, when managed from a real team approach, has been successful and it has been of mutual benefit to all of the parties. For the Texas Department of Criminal Justice, the benefit has been the expeditious and thorough identification and processing of undocumented aliens and the opportunity to apply for SCAAP funding.
For INS, the ability to maximize the number of criminal alien cases processed to conclusion, of course to include the final orders for deportation and thereby minimize the use of detention facility bed space after release from prison, has made it valuable. And for the State of Texas, the ability to apply for its portion of the reimbursement funds that is due it for the cost of the illegal aliens has made it also very valuable.
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The IHP process in Texas is fairly different from the other States. We received data, which we processed in 1985, to actually construct a facility on Texas prison grounds. We felt that it made good business sense for Texas, with the carrot of the SCAAP reimbursement looming before us, to offer to build the facility for INS.
We built the facility. It was a $1.2 million facility, it is collocated on prison grounds, next to one of our intake centers. It was built by inmate labor. We have leased that facility right now through the year—August of 2001, and at the conclusion of that 5-year lease term, we will then offer INS three 5-year terms of leasing at the cost of $1 per year.
With Immigration's presence physically situated in Huntsville, Texas, which is at the heart of our Texas system, it affords us the greatest access to them; and I think they have around 28 staff that work full-time there in Huntsville, Texas, and it affords us, I think, a very good process.
Historically, our process was similar to that of other States. The process was, typically, the INS would come from Houston, about 1 day a week—or once every 2 weeks would come up and process as many cases as it could in that period of time. The result was, after many years of this type of inadequate processing, in our inmate population, which now reaches almost 138,000—we are targeted to be 150,000 within the next year—that at 138,000, we have many thousands of foreign-born inmates who have not been processed by INS or who have been partially processed, though we are correcting that right now.
After we established the IHP process, the Immigration and Naturalization staff were temporarily housed actually in a motel, so it wasn't the best of operations, but we indeed started seeing the statistics improve in September of 1996, when our facility was completed, and that was at the very end of September. The statistics have improved dramatically.
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At that time, we started a front door and a back door process, and before I go into that, very briefly, I would like to give you the five basic characteristics of the term of our agreement with INS that has made it a success.
First and foremost is, we have one single point of intake. This requires State cooperation with the INS. We have 111 units. There is no State in the United States that has more facilities than Texas. We have 138,000 inmates and we are spread all over Texas. In spite of that, we bring in all inmates to Huntsville, Texas, who are identified as foreign-born, to process them.
Equally, we have one point of release. We do not want to release criminal aliens onto the public, so we bring every foreign-born inmate back to Huntsville, Texas, and we give access to the IHP to these foreign-borns to finish processing.
We also, in our facility that we have built for INS, have two courtrooms, so we have judges there 5 days a week, 40 hours a week, processing the inmates and our referrals and processing to the immigration judges has exploded by about 400 and some percent in the last 8 months.
We also are establishing an enhanced system of computer linkage. Our computer system is linked directly to the IHP, which is linked directly here in Washington to the INS national database, so that works well for us.
We are also linked to our Department of Public Safety, so as we have foreign-borns who are arrested, the DPS is entering that information onto the database for us to access. The front end and the back end processing—I see the little red light on.
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Mr. SMITH. Take as much time as you want, Ms. McVey.
Ms. MCVEY. Thank you, Mr. Chairman. I will still hurry.
But our front-end and back-end processing is a key to this. Front-end processing is, you bring them all in and we do not move the inmates from Huntsville, Texas, until the IHP has cleared them. Fifty percent of the 300 foreign-borns that come into our system every month are either your administrative deportation, your stipulated deportation or your reinstatements. INS takes only 2 weeks to totally, completely finish the processing on those cases. They are then assigned to any unit in the system where they serve their term of incarceration.
The balance of the 300 cases we get are the contested, those are the sticky cases, those take 1 to 4 months to complete processing. In spite of that, we keep them in Huntsville until INS says we are finished with them, until the cases are concluded. The tail-end processing, we bring in the inmates 90 days before they get out, before their scheduled release date. INS completes the processing there.
One of the problems that we do have is, we have our immigration judges—and I was able to listen to some of the reasons that this occurs, but we do have constant rescheduling and rescheduling of the same cases, which makes it a fairly elongated process. The result is—and let me jump to the statistics very quickly for you; I have three statistics to quote for you.
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First of all, we have had a significant increase in cases reaching the final point of case processing each month. In the last 4 months, we have had about 554 cases appearing before the immigration judges and reaching that point of conclusion, with only 50 cases per month being released without that final processing.
A second statistic that is significant is 2 years ago, we were only having 13 cases per month, which is 15 percent of the deportable aliens going out with final orders. Today we have—and every time I quote this, people say, are you sure you know what you are talking about, but I believe I am—out of 137 cases that we average every month of deportable criminal aliens, we have 66 percent or 88 of those now being released with their final orders in hand; so that is, I think, double the national average.
The last statistic that I think is important to share is the overall increase in the number of final orders being issued for the whole inmate population. While we have 137 inmates being released, 88 of whom have final orders, we indeed are seeing about 300 cases per month being issued final orders. What that means to us is that we have several—probably about 150 or 160 cases per month being issued orders, who are just in our population. That means security for the future; when they get out, they are already being released with their final orders.
In closing, I will say that of the 100 percent of deportable criminal aliens being released from the Texas Department of Criminal Justice, 100 percent of those are being picked up by INS; none of them are being released to the streets of Texas.
Thank you.
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Mr. SMITH. Thank you, Ms. McVey. I have always said, Why can't other States be more like Texas?
[The prepared statement of Ms. McVey follows:]
PREPARED STATEMENT OF CATHERINE C. MCVERY, ASSISTANT DIRECTOR, PROGRAMS & SERVICES DIVISION, TEXAS DEPARTMENT OF CRIMINAL JUSTICE
I. Opening Comments
Chairman Smith and Committee members, thank you for affording me the opportunity today to provide testimony regarding the Texas Department of Criminal Justice (TDCJ) and Immigration and Naturalization Service's (INS) partnership in the creation, development and, now, the management of the Institutional Hearing Program process. This partnership has been, thus far, a good experience for Texas in that it is of mutual benefit for all parties. My name is Catherine McVey, and I am an Assistant Director of the Programs and Services Division of the Texas Department of Criminal Justice, which is headquartered in Huntsville, Texas. I have been employed by the Department for twenty-three years. As Assistant Director, I am administratively responsible for eight programmatic and service agency operations, which includes oversight for the State Criminal Alien Assistance Program (SCAAP) reimbursement process, and the procedural interface with the Immigration and Naturalization Service for the Institutional Hearing Program (IHP) located in Huntsville, Texas.
I will provide a succinct overview of the Texas experience with the INS Institutional Hearing Program operations. I will include in my testimony the chronology of the development of the IHP, the procedural interface activities between TDCJ and INS, and several of the most important statistics which establish the success of the Texas IHP.
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The IHP, when managed from a team approach, is of mutual benefit to all parties involved. For the Texas Department of Criminal Justice the expeditious identification of reimbursable undocumented aliens and the opportunity to apply for State Criminal Alien Assistance Program reimbursement based on an accurate count of reimbursable aliens as well as the enhanced releasing process makes the IHP concept valuable. For the INS, the ability to maximize the number of criminal alien cases processed to conclusion to include, of course, issuing final orders for deportation, and thereby, minimizing the use of detention facility bedspace for released offenders, makes the IHP valuable. Last, but certainly not least, the ability of the State of Texas to receive the amount of reimbursement funds due it for the partial reimbursement of criminal undocumented inmates' per diem costs, and the successful management of the criminal undocumented alien population, makes this an appropriate operation for Texas. Of course, the most fundamental benefit to all parties is the expeditious, accurate, and well-managed process of identifying and processing to the point of final deportation criminal undocumented aliens.
The Texas IHP is unique. The Texas Department of Criminal Justice constructed the facility in which the program operates and invited the INS to guide its design to suit the unique needs of criminal alien offender processing and Executive Office of Immigration Review hearings. The IHP facility was built on prison grounds and is now leased to INS. It is co-located with one of the prison system's inmate diagnostic and reception units in Huntsville, Texas, for ease of new offender processing. The lease arrangement provides for INS to lease the facility for a five-year period, from September 1996 to August 2001, at which time the cost of the construction of the facility will be paid for. INS will then have the option to renew the INS lease for three five-year terms at the rate of $1.00 per year.
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II. Development of the Texas Enhanced IHP Concept and Terms of the Texas Department of Criminal Justice—Immigration and Naturalization Service Agreement
As previously stated, the concept of establishing a locally based INS Institutional Hearing Program in Huntsville, Texas, co-located with the prison units which process incoming and releasing inmates appeared to be a wise administrative decision for TDCJ as well as for the INS. Because TDCJ is the second largest prison system in the United States, second to California's, housing approximately 136,485 offenders in 111 units, it made good sense to invite the INS to establish an IHP on prison grounds. TDCJ's invitation included the offer to actually build the IHP facility using inmate labor, and to co-locate the facility with a prison intake center.
For the INS this offer represented a milestone in its relationship with state government and would become a symbol of partnership for the effective, efficient, and expeditious identification, detainment, processing, and eventual releasing of criminal undocumented aliens. It was clear to both parties that this partnership would be mutually beneficial.
Prior to the Enhanced IHP process, the processing by INS of criminal aliens at the Texas Department of Criminal Justice was minimal compared to the fully functioning enhanced IHP of today. Prior to April, 1995, INS Houston District Office Investigations ACAP Unit special agents were assigned on a weekly basis to conduct interviews at TDCJ facilities in Huntsville, Texas. INS agents interviewed every Tuesday (sometimes Thursday as well, depending on the volume) at the Diagnostic Intake Unit. The agents conducted the interviews at the Diagnostic Unit in Huntsville, Texas, and then completed the case processing at the Houston District Office. Immigration judges were periodically scheduled to perform hearings at units with foreign-born offenders.
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In April 1995, INS set up a temporary operation in a motel room setting to conduct its functions. It was not until this time that actual case processing began and was completed in Huntsville. Although statistics were low, the complete processing in Huntsville was starting to take form. In December 1995, a temporary building was rented and additional staff were added in order to accomplish the volume of work and in anticipation of the move into the IHP building being constructed on prison property. Computer programming by TDCJ and database linkages were initiated and established to accommodate our new partnrship with INS at the temporary IHP building at the Goree Unit. INS statistics began to show an increase in the temporary building as more efficient functions and processes were taking form and additional staff were being added.
Finally in September 1996, the IHP facility was completed. With the implementation of the new system, INS processing now does the total identification, case processing, court hearings, final orders, and deportation of inmates at the newly constructed IHP facility in Huntsville on the Goree Unit grounds. Additional staff has been added, all TDCJ and INS databases are linked, a functioning court room with immigration judge is in full operation five days a week, and INS is fully operational to carry out all agency requirements and facilitate the State Criminal Alien Assistance Program (SCAAP) case data development.
The most important terms of the agreement regarding TDCJ and INS in relation to the new IHP facility on prison property are:
(1) The establishment of a single intake site for all foreign-born inmates in TDCJ-Institutional Division (ID). The designated single site is the Holiday Transfer Facility, located approximately three miles from the IHP.
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(2) The establishment of one release site for deportable criminal aliens from TDCJ- ID. The designated single site is the Huntsville Unit, located approximately three miles from the IHP.
(3) The establishment of a primary hearing site. All hearings are now conducted daily in the court room, by an immigration judge, at the IHP.
(4) The establishment of a computer interface between TDCJ–ID and INS. This action has been accomplished with multiple database linkages made by the TDCJ Data Services Department. We continue to develop new specific programming to increase efficiency between both agencies.
(5) The automated filing of detainers with TDCJ. The filing of detainers has been a combined effort between INS and the TDCJ Records Department. Currently all detainers are being filed in a timely and accurate manner.
(6) The identification of deportable criminal alien inmates in TDCJ–ID. This function has been accomplished by the offender intake processing identification process along with the many checks of databases against names and aliases of all offenders, fingerprints taken, and interviews conducted.
III. Interagency Procedures for the Identification, Processing, Detainment and Releasing of Criminal Aliens
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The following summarizes the procedural steps in the processing of both newly received criminal alien inmates and soon-to-be-released criminal aliens. This two-process approach is described as the ''front-door'' and ''back-door'' process. The two processes were established to more fully ensure the complete processing of criminal aliens with the issuance of the appropriate number of Final Orders for Deportation.
1. IHP Newly Received Offender Processing: ''Front Door''
a. Newly received inmates are received from the county jails and assigned to the Huntsville Transfer Facility where they are detained until the IHP completes all processing.
b. Initial inmate interviews by TDCJ are completed to determine foreign-born status through self report, Department of Public Safety or FBI records or from other commitment records. TDCJ prepares referrals to the IHP to initiate its processing.
c. IHP initiates the interview and investigation process on referred cases. Naturalized citizens are identified and excluded from further processing.
d. IHP analyzes the status of all other foreign-born cases by assigning them processing categories: administrative deportation, stipulated deportation, reinstatement, or contested cases.
e. The IHP processing lengths vary, ranging from two weeks (for approximately 50% of the cases) to one to four months (for 50% of the cases).
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f. The IHP processes the cases to their conclusions to achieve the issuance of the Final Orders for Deportation.
g. TDCJ facilitates the IHP process while the INS is actively investigating by continuing to detain the inmates at the co-located unit and by providing the required legal representation for all contested cases.
h. TDCJ, through the INS requests, places detainers on the appropriate cases for deportation upon release from prison.
i. INS, upon completion of case processing, notifies TDCJ of such completion and TDCJ is free to transfer the inmate to a routine unit of assignment to serve his sentence.
This process ensures that all criminal aliens received by TDCJ are identified and processed by the IHP and retained in one convenient location for IHP processing, and that all newly received cases are finalized to their appropriate conclusion at the beginning of their term of incarceration. This is particularly important to TDCJ because it establishes the number of criminal undocumented aliens incarcerated within TDCJ and places them in the INS data bank that is used for the SCAAP reimbursement process.
2. IHP Release Imminent Offender Processing: ''Back Door''
Because historically the INS only processed soon-to-be-released inmates at TDCJ and the because of the size of the inmate population (currently 136,485), there are a significant number of foreign-born inmates who have either not been initiated into the INS processing or whose cases were partially processed but are incomplete. This necessitates a ''Back Door'' process to allow for those inmates nearing completion of their sentences to be made available to the IHP to finish the required processing.
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a. Foreign-born inmates are prioritized by anticipated prison release dates. Those inmates with release dates within ninety days or less are transferred by TDCJ to a unit which is co-located to the IHP facility.
b. It should be noted that the IHP is also processing cases with longer sentences, staff time permitting, to expedite the final processing of all foreign-born cases, regardless of sentence length. This is important to Texas because it more accurately identifies the number of identified SCAAP reimbursable criminal aliens.
c. For the cases with release dates within ninety days, the IHP completes the case processing to achieve the issuance of the Final Orders for Deportation by the inmate's date of release.
d. The mutual objective of the IHP and TDCJ interaction is to achieve the issuance of the Final Orders for Deportation for all appropriate cases prior to release. However, while each month this objective is becoming more of a reality, there have been several obstacles to total success. At the beginning of the on-site IHP process in April 1995, the average number of cases released monthly with Final Orders for Deportation was thirteen; currently the monthly average of cases released with Final Orders for Deportation is eighty-eight.
e. There are two primary reasons for the incomplete IHP case processing:
(1) The first reason is that the inmates release dates are sometimes modified which results in earlier than anticipated release. TDCJ has responded by transferring the soon-to-be-released inmates ninety days prior to release, rather than continuing to transfer thirty days prior to release as was originally established.
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(2) The second reason for incomplete case processing is the extenuating circumstances of some cases, including complicated and elongated deportation proceedings for some contested cases, criminal convictions on appeal, deportation cases on appeal, and offenders who have been bench warranted to other jurisdictions. It is my opinion that this category of reasons associated with incomplete case processing will always exist; however, this should not represent a significant percentage of the cases.
f. TDCJ retains the criminal alien at the facility co-located with the IHP for the completion of the IHP processing and to await the offender's release date. The IHP is notified of the inmate's actual release date, and TDCJ transfers custody of the offender to the INS for deportation.
The objective of the two-fold IHP targeted processing, that is, the ''front door'' and ''back door'' processing, is to have all foreign-born offenders in the inmate population processed by the IHP regardless of the sentence length and to thereby achieve the objective of processing on a continuing basis only the newly received inmates each month. This system will result in 100% processing to case conclusion (Final Orders for Deportation) of all identified criminal aliens at the beginning of the term of incarceration.
IV. Statistical Information Relating to the Successful Operation of the IHP
Texas Total Population vs. Foreign Born Population
The population of the State of Texas, as reported in the 1990 Census of Population, is 16,986,510, with a foreign-born population of 1,524,436, or 9% of the state's population. In comparison, the inmate population of TDCJ, as of July 7, 1997, was 136,485, with 11,394 foreign- born inmates, or 8%, approximately the same percentage as in Texas' population as a whole.
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TDCJ Total Population vs. Foreign–Born Population
During the last two-year period, TDCJ has tracked the numbers of newly received foreign- born inmates entering TDCJ. During that period, the average monthly inmate intake was 2,892, with approximately 10% identified as foreign born. It is anticipated that the percentage of foreign-born inmates received monthly by TDCJ will remain stable, resulting in 250 to 300 foreign-born inmate cases per month which will require IHP review.
Analysis of Foreign-Born Prison Population
As of June 30, 1997, of the 11,394 total foreign-born inmates in TDCJ, approximately 6%, or 684, are naturalized US citizens. Lawful Permanent Residents comprise 4,330, or 38% of the foreign-born population. Finally, undocumented aliens account for 6,381, or 56% of the total foreign-born TDCJ population. It is this segment of the population which constitutes the majority population of the SCAAP reimbursable award.
IHP Production Statistics Relevant to TDCJ Processing Objectives
(1) Increase In Completed Cases
In reviewing those IHP statistics which are relevant to TDCJ, the most significant statistics reflect the changing percentage of the number of inmates with completed case processing (with many receiving Final Orders for Deportation). There is a common primary measure of success for the IHP and TDCJ: the successful processing to conclusion of reportable undocumented aliens. It is the success of processing of this population which TDCJ has monitored since the inception of the IHP, due to the SCAAP reimbursement for this population. (See Exhibits A & B.)
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(2) Increase In Number of Inmates Released with Final Orders for Deportation
Since the beginning of the on-site IHP operation in Huntsville, Texas, there has been a steady and consistent increase in the number of inmates released with Final Orders for Deportation already issued prior to release. The Texas experience with the IHP operation can be divided into three basic operational periods. During the first period, the IHP was officed in a local hotel with marginally adequate resources. During this period the number of inmates released with Final Orders of Deportation was quite low, with a monthly average of thirteen inmates, or 15% of the released deportable criminal alien population.
The second period of IHP operations occurred over a nine-month period when the IHP was officed in a second temporary setting. During this improved, but still inadequately resourced period, the monthly average of Final Orders for Deportation was 37, or 28% of the released deportable criminal aliens.
Finally, the third and current period of IHP operation, which has been fully functioning and operational for the last ten months, has yielded a monthly average of 88 Final Orders for Deportation, or 66% of the deportable criminal aliens released. It is fully anticipated, now that corrective action has been taken for those inmate cases with modified release dates, that this number should increase. (See Exhibit C.)
(3) Increase In Number of Inmates Issued Final Orders for Deportation
It is important to also examine the total number of criminal aliens receiving Final Orders for Deportation, rather than to concentrate only on the number of Final Orders of the releasing population. During the last four-month period (March through June 1997), the average of total Final Orders issued was 294, which indicates that a considerable number of inmates, when released at the completion of their incarceration, will do so with Final Orders. In other words, in Texas, the number of inmates released with Final Orders will continue to increase. (See Exhibit A.)
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V. Conclusion
In summary, the Texas Department of Criminal Justice is pleased with the overall operation of the Institutional Hearing Program. The obvious benefits of the program include: (a) the economy of doing the IHP processing concurrently with the inmate's period of incarceration; (b) the increased efficiency, accuracy and effectiveness of releasing criminal aliens directly to the INS in Huntsville; (c) the increase in the identification of SCAAP reimbursable criminal aliens; and, (d) the expeditious deportation of released criminal aliens.
INSERT OFFSET RING FOLIOS 12 TO 14 HERE
Mr. SMITH. Let me start with Mr. Clark, if I may.
Mr. Clark, I know that the Bureau of Prisons has a plan to deal with the backlog of criminal aliens who are eligible for IHP, but I am told that that plan to deal with the backlog does not include individuals from Mexico, who comprise about two-thirds of that backlog.
Why is that, and are these criminals released back into the communities as well?
Mr. CLARK. I think you have been misinformed, sir. The plan that we worked out with the Immigration Service does include dealing with the Mexican population. Many of the cases that we receive, about 40 percent of the aliens we receive, are serving very short-term sentences, under 6-month sentences. So there is a problem to some extent at this point with resources and getting those cases heard before the release date comes. But certainly it is our plan that once we get the resources fully on board with the Immigration Service——
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Mr. SMITH. Mr. Clark, are you talking about intake? I was talking about backlog cases and the information we had that individuals from Mexico were not included in your backlog reduction program. I don't want to put you all against each other, but I believe that information came from Mr. Zangs.
Mr. CLARK. Again, I would have to make clear, our role in the Bureau of Prisons is to, first of all, identify the cases for the Immigration Service and for the Immigration Court and to make them available for the hearings.
Mr. SMITH. Are individuals from any particular country excluded from that backlog reduction?
Mr. CLARK. Not in our plan. Again—well, let me say this. Up until now our program has primarily been at Oakdale, Louisiana, and that has been for the non-Mexican and non-Cuban citizens on the back end of their sentence. It has only been more recently that we have been working with the Immigration Service to establish a hearing program on the front end, which is being referenced today, at Eloy, Arizona, Big Spring, Texas, and several other places, and those are all targeted at the Mexican citizens.
Mr. SMITH. In dealing with the backlog, there is no effort to exclude any country?
Mr. CLARK. Again, our role is not to provide the hearings, but to make the prisoners available, and I think until we catch up, it is going to take a while.
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Mr. SMITH. Are you not answering my question or refusing to answer my question? I am just curious.
Tell me, honestly—I won't push you anymore, but I have yet to hear an answer—does the Bureau of Prisons, in dealing with backlog reduction, exclude those individuals who are thought to have come from Mexico?
Mr. CLARK. No, sir.
Mr. SMITH. Okay. Fair enough. Maybe we had the wrong information.
Mr. CLARK. It is a matter of numbers. You have to start somewhere, and it is going to take a while before we catch up with the backlog.
Mr. SMITH. But you don't differentiate, one person from another, as far as where they are from?
Mr. CLARK. No, sir.
Mr. SMITH. Good.
Mr. Sandoval, as I understand it, California does not start considering individuals for the IHP until about 30 days or so before they are released, whereas in other states, the IHP is initiated at the very beginning of an individual's sentence. Why is it that California waits until the end of the sentence, with the inevitable result that a lot of individuals are not deported straight from prison, but in fact are released?
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Mr. SANDOVAL. To move them to IHP, is that the question?
Mr. SMITH. Yes.
Mr. SANDOVAL. As my colleague from New York stated during his opening presentation, prison space in California is at a premium. We have a huge population which is in excess of 152,000 inmates; people are constantly——
Mr. SMITH. I know that, but New York and Texas are not small, and they begin the process at the beginning of the prisoner's sentence; and you are the only state that starts it so close to the end.
Mr. SANDOVAL. What we do is move them to the IHP at the end, but the process we encourage is that INS begin the process of identifying the criminal alien as early in the process as possible. We would hope that would occur before they come to us. They have done that, in some cases, in county jails. The value of INS identifying criminal aliens before they come to prison is that it reduces everybody's work load once——
Mr. SMITH. So it is the INS that is not expediting the process, it is not your failure to expedite the process; is that right?
Mr. SANDOVAL. That is correct.
Mr. SMITH. Okay. One other question.
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In California, you are operating something like 15 intake sites. Texas has one, New York has three; why can't you reduce the number of those intake sites so you can come up with a better conclusion?
Mr. SANDOVAL. Again, we have, 152,000 inmates, and 11 reception centers. Each one holds 5,200 inmates.
Mr. SMITH. Don't you think if you reduced the number, what has proven true in other States would be proven true in California; that is, that you would get more individuals deported under IHP?
Mr. SANDOVAL. No, sir. What needs to happen is for INS to identify and place detainers on individuals. Once those detainers are placed, we can move them to the IHP when they get towards the end of their sentence, we are a determinant sentencing State, which means that our State will not release an inmate until that inmate serves his or her full sentence. We have the beds available, the beds are not being filled in the IHP centers because of insufficient INS detainers.
Mr. SMITH. The INS needs to act more quickly in California.
Mr. SANDOVAL. Yes, sir.
Mr. SMITH. Thank you, Mr. Sandoval.
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Mr. Watt.
Mr. WATT. The Chairman paid me to ask this question, since he wouldn't dare ask it, he just implied it.
The other three States heard the testimony of Ms. McVey. Why wouldn't it be in every State's interest to implement a program that gets pretty close to what Texas is doing in terms of the safety of the public, in terms of the efficiency of the process, in terms of saving money? It seems to me that all of that makes patently good sense.
Why, Mr. Annucci, why wouldn't New York do almost identically what Texas is doing?
Mr. ANNUCCI. I think we already have implemented something very similar to what Texas has. We established the IHP at two intake points, two reception facilities. Well over 90 percent of the foreign-born inmate population are processed through the two reception center facilities.
We have given office space to the INS, their investigators are on site, their legal staff are on site. We have provided all legal documents in our possession to them, we try and make this process work like clockwork. Three years after the program has been instituted, we find that they are assuming 50 percent of the custody of the foreign-born releases from our system and, of that, 36 percent have not had exclusion or deportation hearings completed.
So I am at a loss for an explanation. We have done everything in New York to make this the most efficient program it can be. I think that somebody of very high rank needs to come from the top of the Justice Department, who oversees all of the various INS units and the EOIR and can take a look at things and see what the problem is.
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Mr. WATT. Okay. You have two processing facilities that get 90 percent. Where are the other 10 percent?
Mr. ANNUCCI. There is also a female facility where we have an INS presence, but not full-time, the INS investigators visit that site; and we have another reception center in the central part of New York State and then we try and have the documents on inmates catch up with the process. It may be possible that we will institute another INS presence down the road, but in order for us to make a further commitment, we want to see the productivity that was promised to us with the existing resources that have been committed, and we haven't seen that yet.
Mr. WATT. Ms. Tucker, Congressman McCollum tells me that everything that happens in Florida is most efficient and the best thing that could possibly happen. Why isn't Florida matching Texas?
Ms. TUCKER. Well, first of all, Florida has significantly reduced its number of hearing and release sites to help accommodate INS. Our facilities are a lot different than the facilities in Texas. For one point, we have open bay dormitories which house up to 200 inmates. We don't feel our security currently would be able to house a large number of aliens, especially those that don't want to be deported, in one area.
Mr. WATT. What do you mean, ''don't want to be deported''? I thought we were putting people into this program who most certainly will be deported.
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Ms. TUCKER. But a lot of them don't want to be deported.
Mr. WATT. Oh, you are saying that would make them more disruptive.
Ms. TUCKER. Absolutely. And we feel that there would be a significant security threat, especially based on how our facilities are constructed.
We have entertained the idea of perhaps doing something similar to Texas at the front end, in terms of when the inmates first come into the prison system. We have five reception centers; our biggest male reception center is in south Florida. The majority of the criminal aliens suspected, or confirmed, do come in through South Florida Reception Center. The problem is, the way the Florida Department of Corrections reception centers work is they are only there for about 20 days before they complete the reception process, and then they get sent off to a permanent facility. It would take considerable time to complete the reception process, have the charging document filed and completing the hearing process before the inmate could be transferred to a permanent facility, and that would be a real problem, especially in light of the fact that the South Florida Reception Center is not that large and you are talking about a large number of aliens.
Mr. WATT. You are talking about 10 days processing time?
Ms. TUCKER. Well, I mean, our experience is that a lot of inmates aren't getting charging documents filed on them now until within 6 months of their release. So if we had some assurance from INS that they were going to move very quickly in identifying inmates at the point they come into the reception process, so that it would initiate or kick in the IHP process, then I think the Department of Corrections would be more than willing to negotiate some sort of system similar to what Texas is doing. But INS is not notifying them within 90 days, and if we are only keeping inmates 20 days at a reception center, to keep them 6 months, it would just prove to be a significant hardship, and we just don't have the facilities to house such large numbers of criminal aliens.
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Mr. WATT. Mr. Sandoval.
Mr. SANDOVAL. Yes, sir.
When people come into our reception centers, the process includes classifying and putting them into proper levels of institution security. It takes about 45 days to put someone through that process. It is taking INS about 157 days, as I stated earlier, to complete their investigation, because of numbers, our inmates do not remain in the reception centers; instead, they go to their institution of assignment.
There would be a number of problems in holding them at the reception center. Someone mentioned the security concerns in mixing different levels of inmate in one institution over a long period of time. The prisons that we design cost more or less, depending on classification; if it is a higher level of classification institution, the costs are much greater.
Another thing that happens is that in California is that inmates are allowed to earn good time. Basically they get day for day credit if they program, or if they go through educational classes.
So, aside from the security issues, if we placed all of these inmates, this mishmash of inmates in one institution, there would be in all probability, a loss of ability to provide programming or education and they would end up serving longer periods of time in our prisons.
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Mr. WATT. Mr. Pease.
Mr. PEASE. Thank you, Mr. Watt.
I guess I would observe, you asked all of the State folks the questions I was going to ask, probably in a better fashion than I would have, and you certainly sucked up to the Chairman better than I would have.
Mr. WATT. I didn't want to give you that opportunity because, see, you would benefit from it more than I will. I didn't want him to have anybody to hold it to him.
Mr. PEASE. A preemptive strike, okay.
Well, I am obviously impressed by what is happening in Texas, but I wonder if that is because there was a comprehensive agreement with INS; because I heard the other folks state they are not getting some of the cooperation you are getting that seems to make your process work better, and I am wondering to what you attribute that.
Ms. MCVEY. I am not quite sure how to attribute it or what to attribute. I know that as I worked with INS in planning this and working out the agreement, there are certain things that it said it needed, like the single points of intake and the single point of release.
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We had to do a lot of adjustment in our system. We have about 12 points of intake; we bring in about 700 to 1,000 inmates every week in our system, so it is a fairly complicated process, but we made the agreement. They have an excellent, excellent IHP Director, who works very well with us. We are at their facility a couple times a week, or he is at our facility, so we are in constant communication. And the agreement that we worked out, they have achieved.
Now, we have had bumps in the road. We have had some difficulties. At first, we too were only bringing the inmates in about 30 days prior to release, and we quickly realized that we were not affording IHP an adequate amount of time to finish their processing, so we modified that to 90 days before release.
Do we have anybody who we have started processing on and then not achieved the final orders for deportation, yes, because of the contested cases, because of some of the rescheduling; but for the most part, we have that pretty well worked out.
So I think the terms of the agreement are solid, and I think in the State of Texas, for whatever reason, both parties are living up to that, and it has been very successful for us.
Mr. PEASE. Was this a negotiated agreement or similar to the one New York has described here?
Ms. MCVEY. I think fairly similar.
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Mr. PEASE. Thank you.
Ms. Tucker, you mentioned that the INS was conducting a performance audit, for lack of a better term, in their operations in Florida, but yet you haven't received a copy. Do you know when that review was done? Have you been told when you can expect it?
Ms. TUCKER. I have been told that they are working on it, and hopefully, we will see it soon. I spoke to Lydia St. John-Mellado, this morning and she said they are working on it. And as to pinpointing a date, that was not given to me, but we are anxiously awaiting it.
Mr. PEASE. When was it done or when was it performed?
Ms. TUCKER. May.
Mr. PEASE. And I am assuming—I guess maybe I am hoping—that that will provide some information that you can work together on.
Ms. TUCKER. We hope so.
Mr. PEASE. Mr. Clark, on the Bureau of Prisons, my recollection is that your percent of offenders that complete the IHP process is now about one in four of those that could.
Mr. CLARK. Approximately.
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Mr. PEASE. Which isn't, quite frankly, as good as some of the States. And why is it that within the Department of Justice, we are not doing a better job of increasing those numbers, when some of the States seem to be doing it, and they have to work between a State and a Federal Government and this is within the Federal Government?
Mr. CLARK. Well, I think we are moving rapidly toward, hopefully, getting close to 100 percent in the coming year. Part of our issue is geography, that we have institutions all over the country where we are releasing prisoners, but primarily our role, as I mentioned earlier, from the correctional point of view, is to try to logistically locate these prisoners and make them available to the Immigration Service. They simply haven't had the resources devoted to our cases to get them through the program. I don't think it has been a matter that we haven't been willing to do that.
Mr. PEASE. So you have been providing the information, but the INS just hasn't acted on it?
Mr. CLARK. Well, I think they are picking up, at least at the end of the sentence, virtually all the prisoners who have completed their sentence, if they haven't had a deportation hearing, but it is simply that the size of the program at the Federal level has not, I suppose, matched what I am hearing from some of the States in terms of providing that hearing, but we are in a position to make those inmates available for the hearings.
But the plan is to move from, I think, in the current year, about 4,000 hearings, to next year, at the 15 sites—or 15 institutions at 11 sites, to provide about 12,000 hearings. So the number of hearings next year, we anticipate to triple what they were this year, which is up somewhat from 2 or 3 years ago.
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Mr. PEASE. Would you have any estimate of how many offenders that could and should—being processed now are being released because the INS is not following up?
Mr. CLARK. Well, as I mentioned, in almost every case, and we released about—about 12,000 Federal noncitizens finished their sentence last year—virtually all of them, if they had not received a hearing, were picked up by the Immigration Service and, I assume, received some determination after their sentence. So we are not aware that there are any numbers that are being released into the community; they are being released through INS detention, and they are receiving their hearings postsentence.
Mr. PEASE. Thank you very much.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease. I have a few more questions that are really variations of the questions asked by Mr. Pease and Mr. Watt.
The first one, Ms. Tucker, concerns Florida. The percentage of criminal aliens who were deported under IHP in Florida is probably the lowest percentage of all the major States; and you mentioned a minute ago some ways you intended to improve it.
How good a job is the INS doing at putting detainers on the individuals that should go through the IHP? I know some of the other states have said they haven't been doing as good a job and haven't been doing it as early in the process as they might have; is that a problem in Florida?
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Ms. TUCKER. Absolutely. As I said earlier, they are not doing it within the 90 days, and often they are doing it closer to the inmate's expiration of sentence, therefore causing a problem in terms of detention costs, because INS is having to then pick them up from our facility, take them to a Federal detention facility where they complete the process.
Mr. SMITH. Unlike in other states, there are apparently no INS or EOIR personnel stationed at your sites in Florida. Is that your decision or the administration's decision?
Ms. TUCKER. Why are they not stationed?
Mr. SMITH. Yes.
Ms. TUCKER. We have INS agents working out of our reception centers daily.
Mr. SMITH. Permanently stationed there?
Ms. TUCKER. Well, they don't have an office, per se; but yes, they are there every day, and we provide them space to conduct their interviews.
Mr. SMITH. Then, given all this, why does Florida have the worst record?
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Ms. TUCKER. I can't answer that. You would have to ask INS. I mean, from the department's standpoint, we are frustrated because when they come in, we provide intake sheets to INS so that these inmates can be interviewed. INS is doing an exceptional job in terms of interviewing the inmates within 5 days of their arrival at the reception center. However, I cannot answer why it takes INS——
Mr. SMITH. So far, we have California pointing to INS, and you are pointing to INS. Let me go to my next question for Mr. Annucci.
In the case of New York, there seem to be some, shall we say, personality conflicts between agencies, between the state and the federal government and so forth. One example of that is that the IHP was shut down for a month by the state because of differences with the INS. What good excuse is there for that?
Mr. ANNUCCI. I think you may have a little bit of misinformation about that.
The reason why we shut down the program is because we had found out—at that point, we were in the midst of submitting our 1996 SCAAP application. We had learned that the data that was generated by the district office in New York City did not match in Washington, D.C.'s office, so that we were not going to get credit for housing a whole number of illegal aliens that we were entitled to incarcerate and to be reimbursed for. So to dramatize the urgency of this, we directed that the program be shut down, and we did receive the cooperation of the INS district office, although Washington, D.C. was not so willing to be cooperative. But they recognized the importance of generating accurate data; New York was only asking for what it was entitled to under Federal law.
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Mr. SMITH. What about the conflicts between the New York City and the Buffalo INS offices; is that a problem?
Mr. ANNUCCI. Traditionally, I understand there has been some competition, and that gets to my overall point as to where the cure is.
To understand the INS bureaucracy and understand that there are many layers, that there is a competing interest between deportation and detention, counsel's office and investigators, and personality conflicts, I think it takes a very strong individual from above who can knock some heads together and get them all pulling in the same direction. They clearly are not, right now, at least from our experience in New York.
Mr. SMITH. In your testimony, you said that unless the DOJ assigns a high-ranking official to fix the IHP, that it is never going to work properly. What did you mean by that?
Mr. ANNUCCI. From my experience, when we first entered negotiations to develop and enhance IHP, the Attorney General, Janet Reno, did assign a very high-ranking official—at the time, I believe she was a Deputy Associate Attorney General—and she was given the task of pulling all the players together, and she did a very admirable job. There was a lot of friction, and she basically gave marching orders to everybody, and it seemed to get started on the right foot.
And after she got New York started, she then left it to do the same with other States, and there was no follow-up; and that is why—where I think the wheels fell off, because you need a person not only to start the process, but to make sure it stays in place and to make sure everybody is doing what they are supposed to be doing, and that follow-up is now lacking.
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Mr. SMITH. So again, you need a little more help from the INS to solve the problem.
Ms. McVey, Mr. Watt already stole my question, which is, What are the other states not doing that Texas is doing? Let me just compliment you, because you mentioned in your testimony awhile ago that the percentage of criminal aliens who participate in your program is twice the national average. I happen to think one of the reasons for that is because of the single location at Huntsville of the intake hearing, and release program, which is something I hope other States will emulate.
You have Florida, I think, coming down from about 45 to 15 release sites.
Ms. TUCKER. Right.
Mr. SMITH [continuing]. And New York with three. I think the fewer you have, the more efficient the program can be. So I don't have any other questions for you, and I appreciate the good work that is being done in Texas and I appreciate your testimony as well.
Are there any other questions by Mr. Watt or Mr. Pease? If not, before you all leave and before I thank you, I just want to recognize that Jim Wilon, to my right, is a new counsel for the Immigration Subcommittee, though not a new counsel to the committees on the hill. This was the first hearing that he put together. It obviously came off well.
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Jim, we thank you and we thank all the panelists and members of the three panels who appeared before us today.
[Whereupon, at 12:09 p.m., the subcommittee adjourned.]
A P P E N D I X E S
Material Submitted for the Hearing Record
APPENDIX 1.—LETTER DATED JULY 29, 1997, FROM CHAIRMAN SMITH, TO IMMIGRATION AND NATURALIZATION SERVICE COMMISSIONER MEISSNER, WITH ADDITIONAL QUESTIONS.
"The Official Committee record contains additional material here."
Strip offset folio 15 here
INSERT OFFSET RING FOLIOS 16HERE
APPENDIX 2.—LETTER DATED SEPTEMBER 19, 1997, FROM IMMIGRATION AND NATURALIZATION SERVICE COMMISSIONER DORIS MEISSNER, WITH RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED BY CHAIRMAN SMITH.
"The Official Committee record contains additional material here."
Strip offset folio 17 here
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INSERT OFFSET RING FOLIOS 18 TO 20 HERE
APPENDIX 3.—SUPPLEMENTAL TESTIMONY SUBMITTED BY NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES
"The Official Committee record contains additional material here."
Strip offset folio 21 here
INSERT OFFSET RING FOLIOS 22 TO 27 HERE
[The appendix is being held in the Committee's file.]
54–765
1997
INSTITUTIONAL HEARING PROGRAM
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
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OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
ON
July 15, 1997
Serial No. 75
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
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
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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
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS 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
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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
LAMAR SMITH, Texas, Chairman
ELTON GALLEGLY, California
SONNY BONO, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRIS 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
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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
July 15, 1997
OPENING STATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Annucci, Anthony J., Deputy Commissioner and Counsel, New York State Department of Correctional Services
Clark John L., Assistant Director, Community Corrections & Detention
Creppy, Michael J., Chief Immigration Judge
McVey, Catherine C., Assistant Director, Programs and Services Division, Texas Department of Criminal Justice
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Rabkin, Norman J., Director, Administration of Justice Issues, U.S. General Accounting Office
Sandoval, Joe, Secretary, California Youth and Adult Correctional Agency
Tucker, Kelly, Correctional Services Administrator, Florida Department of Corrections
Virtue, Paul, Executive Associate Commissioner, Programs
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Annucci, Anthony J., Deputy Commissioner and Counsel, New York State Department of Correctional Services: Prepared statement
Clark John L., Assistant Director, Community Corrections & Detention: Prepared statement
Creppy, Michael J., Chief Immigration Judge: Prepared statement
McVey, Catherine C., Assistant Director, Programs and Services Division, Texas Department of Criminal Justice: Prepared statement
Rabkin, Norman J., Director, Administration of Justice Issues, U.S. General Accounting Office: Prepared statement
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Sandoval, Joe, Secretary, California Youth and Adult Correctional Agency: Prepared statement
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
Tucker, Kelly, Correctional Services Administrator, Florida Department of Corrections: Prepared statement
Virtue, Paul, Executive Associate Commissioner, Programs: Prepared statement
APPENDIXES
Appendix 1.—Letter dated July 29, 1997, from Chairman Smith, to Immigration and Naturalization Service Commissioner Meissner, with additional questions
Appendix 2.—Letter dated September 19, 1997, from Immigration and Naturalization Service Commissioner Doris Meissner, with responses to additional questions submitted by Chairman Smith
Appendix 3.—Supplemental testimony submitted by New York State Department of Correctional Services
(Footnote 1 return)
SCAAP is the State Criminal Alien Assistance Program, which reimburses the states for the costs of incarcerating illegal aliens.
(Footnote 2 return)
Under revised provisions for the removal of aliens established in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104–208, aliens charged by INS as deportable are now placed in ''removal'' proceedings as opposed to ''deportation'' proceedings. For consistency, we refer to these proceedings as deportation hearings or proceedings throughout this testimony.
(Footnote 3 return)
For definitions of ''alien'' and ''criminal alien,'' see appendix I.
(Footnote 4 return)
In addition to the five states, we also obtained data on Illinois and New Jersey. As explained in appendix II, these states were dropped because data from these states' corrections departments could not be reliably matched with INS' data.
(Footnote 5 return)
When foreign-born inmates are interviewed to determine their deportability, INS agents are to document the interview in the aliens' files, which are referred to as ''A-files.''
(Footnote 6 return)
The 1996 Act made major changes to immigration law and procedures, many of which went into effect on April 1, 1997. Since our review focused primarily on fiscal years 1995 and 1996, the changes in the 1996 Act are generally not reflected in this testimony.
(Footnote 7 return)
The immigration judge is to inform the alien of his or her right to be represented by counsel at no cost to the government. The judge is to advise the alien of the availability of free legal service programs and ensure that the alien has been given a list of such programs.
(Footnote 8 return)
IHP proceedings may be discontinued by an immigration judge in several ways other than the issuance of a final order of deportation or the granting of relief from deportation, including (1) administrative closure for such reasons as the alien did not appear for a hearing, and the judge decided that the alien was not properly notified; (2) a change of venue, whereby the immigration judge transfers the case to another immigration judge's jurisdiction, as can occur when an alien who starts IHP proceedings is released before the case is completed; and (3) termination, when the immigration judge decides that insufficient grounds exist to issue a final order of deportation, and the alien is allowed to remain in the United States.
(Footnote 9 return)
During the time of our review, INS was required to take into custody and detain criminal aliens convicted of aggravated felonies. Lawfully admitted aliens who did not pose a threat to the community and who were deemed likely to appear for their hearings could be released. Criminal aliens not convicted of aggravated felonies could be taken into custody and then could be released on bond or on their own recognizance, pending completion of deportation proceedings.
(Footnote 10 return)
Our sample was originally designed so that we could statistically estimate how many of the nearly 6,000 cases were interviewed, placed in deportation proceedings, or did not have any indication of having been interviewed by INS. However, an error in the computer matching done by INS resulted in INS having to redo the match and send us new data. Because our sample was drawn before the error was detected, we are not able to make statistical projections from the case file review.
(Footnote 11 return)
There were 5,884 foreign-born inmates whom BOP and the 5 states told us were released from prison but were not contained in INS and EOIR databases. LESC checked the records of 5,109 of these released inmates.
(Footnote 12 return)
The Department of Justice's Office of Inspector General reported in September 1995 that some states had substantial numbers of foreign-born inmates who had not been interviewed and processed through the IHP. The report concluded that if INS did not eliminate the existing backlogs, foreign-born inmates would be released into the community without INS having identified them as deportable.
(Footnote 13 return)
As discussed earlier, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, beginning October 1996, INS is required to take into custody a larger group of criminal aliens than aggravated felons.
(Footnote 14 return)
INS' operational goals for fiscal years 1995 and 1996, respectively, were to complete hearings for, take into custody, and remove 8,250 and 13,400 criminal aliens nationwide.
(Footnote 15 return)
For those aliens who were deported, appendix V contains a fuller analysis of the time that elapsed between their release from prison and their deportation.
(Footnote 16 return)
See appendix VI for a discussion of how we estimated these costs.
(Footnote 17 return)
These attrition rates represent only the internal organizational movement of INS staff from one INS position to another and do not include losses to other employers.
(Footnote 18 return)
We dropped two additional states from our analysis, Illinois and New Jersey, because data obtained from these states' corrections departments could not be reliably matched with INS' data. Without a unique identifier, such as an A-number, that is common to both databases, we would have had to rely on such information as names and birthdates, which are not a conclusive way of identifying individuals.
(Footnote 19 return)
The six databases searched by LESC were (1) the Central Index System (CIS), (2) the Computer-linked Application Information Management System (CLAIMS), (3) the Deportable Alien Control System (DACS), (4) the National Automated Immigration Lookout System II (NAILS II), (5) the Nonimmigrant Information System (NIIS), and (6) the Student and Schools System (STSC).
(Footnote 20 return)
State Criminal Alien Assistance program (SCAAP): The Violent Crime Control Act of 1994 authorized the establishment of the State Cr8iminal Alien Assistance program (SCAAP), which provides reimbursement to the states for the costs incurred for imprisonment of undocumented criminal aliens. As I noted earlier, cooperation and collaboration with the INS has improved the state's ability to identify aliens eligible for reimbursement. In 1996 the seven states with the highest prison population of undocumented criminal aliens, received SCAAP awards in the following amounts:
California—$252,260,225
Texas—$51,990,069
New York—$46,842,600
Florida—$17,513,577
Arizona—$17,144,440
Illinois—$9,182,929
New Jersey—$3,538,227
(Footnote 21 return)
We estimate that the increase related to the identification of additional aliens was approximately $12 million. The additional monies were related to an increase in SCAAP funding for FY 1996.