SPEAKERS CONTENTS INSERTS
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ILLEGAL ALIENS IN THE UNITED STATES
IMMIGRATION AND CLAIMS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
MARCH 18, 1999
Serial No. 45
Printed for the use of the Committee on the Judiciary
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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
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
Page 3 PREV PAGE TOP OF DOCJOE SCARBOROUGH, Florida
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
Page 4 PREV PAGE TOP OF DOCELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
MARY BONO, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LAURA BAXTER, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
March 18, 1999
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Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
Bianculli, Margaret, Director, Sachem Quality of Life Organization
Bromwich, Michael R., Inspector General, U.S. Department of Justice
Cronin, Michael D., Associate Commissioner for Programs, U.S. Immigration and Naturalization Service
Dale, Amy, Administrator of Detention Services, Federal Bureau of Prisons
Kwong, Peter, Director of Asian-American Studies, Hunter College, City University of New York
Hamilton, Donna J., Principal Deputy Assistant Secretary for Consular Affairs, U.S. Department of State
Massimino, Elisa, Director, Lawyers Committee for Human Rights
Nardi, Louis, Director of Investigations for Field Operations, U.S. Immigration and Naturalization Service
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Stein, Dan, Executive Director, Federation for American Immigration Reform
Stoddard, David J., Retired U.S. Border Patrol Employee
Walsh, Selena, Director of Policy and Communications, League of United Latin American Citizens
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bianculli, Margaret, Director, Sachem Quality of Life Organization: Prepared statement
Bromwich, Michael R., Inspector General, U.S. Department of Justice: Prepared statement
Brownfield, William R., Inspecter General, U.S. Department of State: Prepared statement
Cronin, Michael D., Associate Commissioner For Programs, U.S. Immigration and Naturalization Service: Prepared statement
Dale, Amy, Administrator of Detention Services, Federal Bureau of Prisons: Prepared statement
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Hamilton, Donna J., Principal Deputy Assistant Secretary for Consular Affairs, U.S. Department of State: Prepared statement
Kwong, Peter, Director of Asian-American Studies, Hunter College, City University of New York: Prepared statement
Massimino, Elisa, Director, Lawyers Committee for Human Rights: Prepared statement
Nardi, Louis, Director of Investigations for Field Operations, U.S. Immigration and Naturalization Service: Prepared statement
Stein, Dan, Executive Director, Federation for American Immigration Reform: Prepared statement
Stoddard, David J. Retired U.S. Border Patrol Employee: Prepared statement
Walsh, Selena, Director of Policy and Communications, League of United Latin American Citizens: Prepared statement
ILLEGAL ALIENS IN THE UNITED STATES
THURSDAY, MARCH 18, 1999
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House of Representatives,
Subcommittee on on Immigration
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 2 p.m., in Room 2237, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar Smith, Elton Gallegly, Edward Pease, Charles Canady, Bob Goodlatte, Sheila Jackson Lee, Howard Berman and Zoe Lofgren.
Staff Present: George Fishman, Chief Counsel; Jim Wilon, Counsel; Judy Knott, Staff Assistant; Leon Buck, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
I have a couple of quick announcements to make, then we will get to our opening statements and then to a very important hearing on the subject of illegal immigration in the United States. First of all, we would like to welcome CSpan and CSpan's viewers who are here today. I know they are celebrating, I think, their 20th anniversary. We assume that today's hearing is a part of that celebration.
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I also want to say to our government witnesses who are present that we have gone out of the usual order today and have asked our citizen witnesses to give us their testimony first, and I want to thank the government witnesses for their indulgence because, as I say, typically the government panels do go first. In this case we only have one citizen panel and two government panels, and were we to put this current panel at the end, it is my understanding that some folks might miss their flights and might not get out of town tonight. We wouldn't want to subject them to that unnecessarily.
Let me also say that when we get the requisite number of members, we are going to be interrupting our hearing to consider a bill, but that will not be immediate, that will be I hope within a half an hour or thereabouts. So if we have to take a break to mark up a bill, we will do that as well.
I am going to recognize myself for an opening statement and then the ranking member for her opening statement.
How many illegal aliens are in the United States today? It is estimated there are 5 million living here currently, a number that increases by 300,000 every year. The total number of illegal aliens, permanent and temporary, is of course much higher, but numbers do not tell the whole story.
The real story is that illegal immigration causes severe harm to many people, especially the most vulnerable among us. One part of the United States that is swamped by illegal aliens is, of course, the border area in Texas, which consists of 43 counties and 4 million people, more than the population of either Colorado or Oklahoma. Yet if the border area in south Texas was a separate state, it would have the lowest per capita income, the most poverty and the highest unemployment of any of the 51 States.
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We cannot ignore the obvious, that illegal immigration displaces legal workers and depresses wages, making it difficult for unskilled workers to get jobs and support their families. Those who suffer most are illegal immigrants and Hispanic and black Americans.
Illegal immigration also produces high levels of crime nationwide. Small towns and large cities alike find themselves plagued by illegal drugs, violence and gang-related activity. Local law enforcement is simply overwhelmed. The percentage of noncitizens in Federal prisons has increased to more than a quarter of the Federal prison population. Most are illegal aliens, half of them convicted of drug dealing and drug trafficking. Either because of mismanagement or a lack of desire, our immigration laws are not being enforced as they should be.
This is not of question of being for or against immigration, it is a question of whether the United States as a self-governing nation will uphold the rule of law, secure its borders and protect its citizens. Congress has given the Immigration and Naturalization Service the necessary laws and funds, but the Federal Government still has not protected its residents and defended its borders. The President is missing in action.
In the face of a surge of drug trafficking and a continuing flood of illegal aliens across our borders, the President requested no new border patrol agents in his year 2000 budget. Two weeks ago the Attorney General implied that the failure by the INS to request additional agents was somehow caused by concern about the training process. We now know that wasn't true.
The INS actually did request an additional 1,000 border parole agents, but the President rejected the request. So it is the President who must assume responsibility for the consequences of a policy of no new border patrol agents.
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The administration's own drug czar has said we need 20,000 agents to control the flow of drugs in the United States. Today, we have about 8,000 border patrol agents.
A bipartisan coalition of Members of Congress wants to increase the size of the Border Patrol, and Border Patrol chiefs and Border Communities from California to Florida to New York cry out for additional agents for effective law enforcement, but the President fails to respond.
Controlling the border is not enough. Millions of illegal aliens are visa overstayers who enter the United States legally, for example, on a tourist visa and then never leave after their visas expire.
The INS should keep track of visiting aliens and remove those who overstay their visas. The State Department should improve its consular operations to grant fewer visas to potential overstayers. But those basic strategies cannot function without accurate information on visa overstayers.
A report on visa overstays by the Justice Department Inspector General concluded that the INS failed to collect and use the necessary information on visa overstayers. The IG's report made specific recommendations for improvement, but the INS has not followed them.
The INS does not even use its lawful authority to get accurate arrival and departure records from airlines, but I understand there may be improvement to be reported today. The agency has failed to make use of information in its own databases.
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Then there is the grave problem of organized criminal alien smuggling. All over the world, alien smugglers operate with impunity. Some foreign countries allow smugglers to recruit their residents, transit countries allow them to pass through, and other countries allow their vessels to be used for transport.
Smugglers in the United States place illegal aliens with employers who break the law and exploit cheap labor. Smuggled aliens endure inhumane treatment. Media reports describe Mexican nationals abandoned in the southwestern desert, without food or water, by smugglers avoiding pursuit. Chinese smugglers charge exorbitant fees, as much as $50,000 per alien, that are payed by long periods of slavery in sweatshops. Smugglers coerce illegal aliens into drug trafficking, prostitution and other illegal activities, and those who fail to cooperate, often pay a steep price.
The 1996 immigration reform law increased penalties for smuggling, gave the Justice Department authority for undercover operations and wiretaps and provided additional prosecutors. But we are still not doing enough to stop the smuggling of human beings.
Finally, work site enforcement cannot be abandoned by the INS. With more personnel and funds than ever before, the INS actually conducts fewer work site raids now than it did 10 years ago.
The President must not allow the breakdown of immigration law enforcement to continue. The costs in crime, unemployment, poverty and lack of border security are already too high.
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That concludes my opening statement, and I will recognize the ranking member for her opening statement. Ms. Sheila Jackson Lee is recognized.
Ms. JACKSON LEE. Mr. Chairman I thank you for your kindness and your kindness of recognizing constituents that are always visiting with us, and we have those kinds of responsibilities.
Let me thank you and your staff for cooperating with us this time on this hearing and increasing the witnesses that we were able to have. I believe that this is a moderated approach, we now have two, and I hope that we will collaborate together to increase the number of witnesses who will help create the balanced perspective that I know that you are committed to, as I am.
Mr. Chairman you can be assured that on illegal immigration, alien smuggling, we have much to agree on. What I do insist, however, is that as we proceed on these very crucial issues that, as you would want that, we emphasize the importance of balance and we respond to all of the concerns that have been expressed, so that the resolution brings a more diverse and committed advocacy group to do what all of us want to do.
Let me also say to you, just as a way of continuity, moved by the hearing last week on the impact of immigration on certain minority groups, I plan to offer legislation that will provide relief for those who can document that they have been displaced or have not been offered a position because of an immigrant, illegal immigrant status. When I say ''illegal immigrant status,'' it is someone illegally here has taken their position. I think that we can probably work on that, which would help minorities, low-income and women.
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Let me say that illegal immigration has been a perennial problem in the United States. Many believe that the failure of prior administrations to stop illegal immigration is the root cause of the recent backlash against legal immigration. The INS recently estimated that there are approximately 5 million resident illegal aliens living in the United States, defined as those who have lived here continuously for at least 12 months. Half of these resident illegal aliens came to the U.S. by illegally crossing the border. The other half entered the U.S. legally, but then overstayed the terms of their nonimmigrant status or nonimmigrant visas.
In addition to the resident illegal aliens, there are countless others who enter the United States temporarily for seasonal work and then return to their home countries. This hearing is about the 40 percent who overstay their visas and about the alien smuggling rings that need to be stopped.
There is a growing consensus in the United States and other countries that criminal organizations increasingly threaten security and diminish the quality of life. One of the lesser known, but increasingly important criminal activities is illegal smuggling.
The number of illegal aliens brought into Europe and North America alone exceeds several hundred thousand persons each year, providing organized criminal groups with $8 billion of annual revenue. Illegal smuggling is not a victimless crime. Smugglers corrupt government officials, engage in torture and other forms of violence and frequently force the illegal aliens into various types of involuntary servitude. I am particularly concerned with the human rights violations of these human beings.
Page 15 PREV PAGE TOP OF DOC Moreover, the proceeds and the smuggling infrastructure associated with this activity support other organized illegal enterprises. INS has made significant headway in the war on alien smuggling by working with the FBI, the U.S. Coast Guard and other law enforcement agencies, although more can be done. And I do believe that we should focus as much on the issues of human rights and the degradation of these human beings.
Operation Seek and Keep was a criminal enterprise which had been in operation for at least 3 years, was smuggling as many as 300 Indian nationals into the United States every month at a cost of more than $20,000 per alien and grossing more than $200 million. INS was successful in shutting down this business. Twenty-four individuals have been arrested in the United States, Bahamas, Central America and the Dominican Republic.
Operation Over the Rainbow II was an alien smuggling operation that led to the crippling of a syndicate responsible for smuggling as many as 150 Chinese nationals per month in the United States across the U.S. northern border. So we can say that there have been success stories that the INS and collaborative Federal agencies have actually been involved in and can announce.
As Members of Congress we should be sensitive to funding and resource concerns. I look forward to hearing testimony of the agency officials before us today and hope they will address how they are using the resources that Congress has appropriated to them in combating the problem of alien smuggling.
If we are to be finger pointing I hope, as well, that as we finger point, we will also acknowledge the successes and the first question or the second question is how we can do better.
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Currently, there are estimates that the illegal alien operation is more than 5 million illegal aliens in the United States, and that 40 percent of these aliens are visa overstays. Visa overstays are aliens who originally enter into the United States legally on a temporary visa, tourist or student, and then remained here after their visa expired. I am sure that Mr. Bromwich, the Inspector General of the Department of Justice, is here to share with us his findings of a report that he issued examining the effects of visa overstays in the United States.
I am aware that in his report the tone of the conclusions that he has reached is that visa overstays are a disturbing and persistent problem, because these visitors may be taking jobs and other benefits that by law are reserved by legal residents. I strongly believe that INS must track the immigrants into the United States on a temporary visa in an efficient and timely manner, and I believe that the INS should use information from other enforcement programs to identify and remove overstays.
However, I do have some concerns, Mr. Chairman. In 1996, 10,000 overstays were apprehended and some 5,200 were deported last year. The numbers apparently indicate that two-thirds of those deported were of Hispanic heritage. I think it is very important that all visa overstays must be targeted and deported, not just one particular group, and I will be interested to know what the INS and the State Department have to say on this matter. There should be equal opportunity deportation.
Lastly, on the housing of criminal aliens in Federal prisons. At the end of fiscal year 1997, the Bureau of Prisons estimated out of 113,000 inmates in Federal and federally contracted correctional facilities, 27 percent were noncitizens, many of whom were subject to removal proceedings. I strongly believe that the INS must do everything it its power to remove criminal aliens from the Federal penal system and not release them into the American society, but deport them to their country of destination.
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Illegal immigration is a problem, Mr. Chairman. But let me just comment finally on that point about the INS deporting illegal immigrants. We have a family here. It is a Department of Justice, INS, FBI, Federal Bureau of Prisons, all working together on a variety of issues. We cannot have the Federal Bureau of Prisons pointing the fingers at the INS. So what that they have 27 percent, my community in Houston would prefer that you have those detainees in the Federal Bureau of Prisons and not in private prison that is in our neighborhoods, and so I will be wondering why the Federal Bureau of Prisons is here complaining about a responsibility that I think is appropriate for them. The INS, on the other hand, must move expeditiously to make sure these individuals are tracked, and then deported quickly upon release or, if necessary, if the procedures allow so, beforehand.
So I hope, Mr. Chairman, that as we listen to these witnesses we will find common ground of working together and eliminate the divide on a very important issue like alien smuggling, illegal immigrants and other issues that you have put before us.
Mr. SMITH. I thank the gentlewoman from Texas for her opening statement and want to recognize Members who are present and thank them for attending. Mr. Goodlatte from Virginia is in front of me. Mr. Canady of Florida. Mr. Pease from Indiana to my right.
I mention that in hopes of their staying a little bit longer. When we get two more Members, we will have our reporting majority and be able to mark up the bill, even if we have to interrupt, I am afraid, our first panel to do so.
Page 18 PREV PAGE TOP OF DOC Let's go to our first panel now and let me introduce Margaret Bianculli, Director, Sachem Quality of Life Organization; Mr. David Stoddard, retired U.S. Border Patrol employee; Professor Peter Kwong, Director of Asian-American Studies, Hunter College, City University of New York; Mr. Dan Stein, Executive Director, Federation of American Immigration Reform; Ms. Elisa Massimino, Director, Lawyers Committee for Human Rights; and Selena Walsh, Director of Policy and Communications, LULAC, Legal of United Latin American Citizens.
We welcome you all to a very important hearing and look forward to your testimony.
Ms. Bianculli, we will begin with you.
STATEMENT OF MARGARET BIANCULLI, DIRECTOR, SACHEM QUALITY OF LIFE ORGANIZATION
Ms. BIANCULLI. I am from Farmingville, New York, on Long Island. I am a housewife and a mother, a homemaker. I am really excited. This is a refreshing relief for me to be here in front of you. It is a relief from the obstructive labyrinth that elected officials have forced our community through over the past 9 months.
Nine months ago, I became a community activist. This was not something I was planning to do, and at the time, I had no idea that I was becoming an immigration reform activist.
Further, my neighbors and I are not paid for the hours we spend on this issue. You see, we have come to understand that this is no less than a fight for our homes, families and our Constitution. As amazing as it may sound, in a country of laws, illegal immigration and the underground economy activities have become a threat to our families.
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Then when those charged with the responsibility to protect and maintain civil streets turned a deaf ear to us, it became necessary for us to organize and unite, and I am now the director of the Sachem Quality of Life organization, a grassroots organization founded to protect our community.
Farmingville is a hamlet of 15,000 people, about 60 miles each of Manhattan on Long Island. More than a year ago, we began to notice large numbers of men hanging around our town near the convenience stores. We were told that they were looking for work and contractors and other employers looking for day laborers would hire them off the street and, sure enough, every morning, 6 days a week, you would see this activity going on.
One Sunday morning, in June of '98, my daughter left our house to go to church. Before she reached her car, she was approached by 5 men she recognized to be the day laborers I just mentioned. They made crude advances and solicitations and frightened her and she retreated to the house and waited for them to leave before she felt safe enough to depart for church.
The very next day, I was riding my bike trying to pass through more than 100 of these men who were crowding our sidewalks in front of the convenience store. They whistled and laughed at me, and the police refused to take a complaint or send a patrol car to investigate the incident. This was the beginning of an odyssey, a trip through layers of government bureaucracy and elected officials who ignored us and wouldn't lift a finger to help us. In fact, they stonewalled us at each turn leaving us to research the laws and ordinances for ourselves and forcing them to become accountable to us. Justice delayed is justice denied.
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Currently, there are over a thousand day laborers in Farmingville. Most of these day laborers are, in fact, illegal aliens from Hidalgo, Mexico. We began locally asking police to arrest the illegals. We were told that the local police cannot make immigration arrests. We since learned they can arrest illegals once they have been trained and deputized by the INS. Thank you, Mr. Smith.
We were told that this was a Federal matter. INS told us they didn't have the manpower or the money to arrest and detain illegals. They explained that sweeps were dangerous to their men and not effective, so they wouldn't be doing any good. We gave them a detailed report to support probable cause hoping for a more aggressive enforcement posture. It was submitted to them at least four different times through different avenues before they would even accept it as a complaint.
I gave the United States Department of Labor a 9-page complaint documenting violations. They told me our complaint did not fit their profile. When I pressed them, explaining that some of our complaints did fit their profile, they admitted they would not be able to do anything until other agencies got involved, thus insulating them from total liability.
The inability or unwillingness of Federal agencies to enforce their jurisdiction has led to local government modeling Federal Government's weak response attitude. It has also led to a proposal that we find totally unacceptable. I am talking about the idea that we create a shape-up site where day laborers can congregate and be picked up by employers.
Local officials and nonprofit agencies are really pushing this idea, and you could read more about the details in that in my written statement. And if anybody wants, we have a lot of documentation here.
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So the use of public and/or charitable funds to create a hiring hall for illegal alien day laborers is just not acceptable to citizens of the United States who live in Farmingville, New York. This week I have been in touch with people in other communities under siege just like mine. They are places you may have never heard of Rogers, Arkansas; Albert Lea, Minnesota; Lexington, Nebraska, and each of us are being given the same excuses for nonexecution of Federal jurisdiction. We are discouraged at every level of government we approach.
The INS tells them that they do not have money and resources, and the INS tells them to go back to their local government for help, and as each level of government does nothing to enforce our country's immigration laws, the number of day laborers continues to grow as do the unpleasant experiences residents have with these men.
Our teenage daughters are followed home, a 14-year-old. Our teenage daughters are solicited for sex. Older women can no longer sit on their porches or take daily walks. Husbands report their wives are not safe going to the stores, and it seems that the mere lack of enforcement of the law is acting as an encouragement for more to come to our community and our quality of life is changing drastically.
Mr. Chairman, we have expectations as citizens. We expect the government to enforce the immigration laws. We expect that those who have entered our country illegally and have no right to work here should not be provided with the social service that helps them find a job that they have no right to. We expect elected official should be interested in the problems of their constituents, and we expect the Federal Government to solve a problem that is their direct responsibility.
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And we will not accept our elected officials using our tax dollars to support illegal activity. You can read more about that in my written statement as well, and this book. We will not tell our children that it is okay to flout the law as long as there is money and power to be gained, and that is what we are being told. All over the country, these people are suffering, your citizens, your constituents are suffering from nonenforcement of our country's immigration laws.
We are watching our communities transform into something we don't like, don't want, and should not have to endure. This is happening where you are living or very close to where you are living; these are your daughters and your wives. And every time our elected officials turn their back on the general welfare of the public for service to select groups and this is what is happening, they are in violation of their oath of office to us. And we want them to stand up and take notice and not to further violate their oath of office.
Please help us protect our community and our country so we can hand it over to our children in as least as good a shape as we received it. This is our biggest responsibility to our future generations and our country. Thank you.
[The prepared statement of Ms. Bianculli follows:]
PREPARED STATEMENT OF MARGARET BIANCULLI, DIRECTOR, SACHEM QUALITY OF LIFE ORGANIZATION
Mr. Chairman and members of the committee, thank you for inviting me to speak to you today. This is an honor to be able to address you and to be able to appreciate your concern for execution of your jurisdiction in an honorable manner. This is an exciting and refreshing relief from the obstructive labyrinth elected officials have forced us through these past nine months.
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My name is Margaret Bianculli and I'm from Farmingville, New York, Long Island, in Suffolk County. I'm a wife, a mother, a homeowner and have been a public school teacher for seventeen years.
Nine months ago I became a community activist. This wasn't something I was planning to do and at the time, had no idea that I was becoming an immigration activist. My life is filled with family, work and church, and there isn't much time left over for anymore activity. Further, my neighbors and I are not paid for the hours we spend on this issue. There are many things that go into this fight. At any one given time we can call on over 200 of our neighbors to do canvassing, mailings, give donations, attend various town and county meetings and do whatever is required to regain our community streets for their intended purpose. You see, we have come to understand that this is no less than a fight for our homes, families and our constitution. But as those charged with the responsibility to protect and maintain safe and civil streets turned a deaf ear on us, it became necessary and unavoidable for us to organize and unite when, as amazing as it may sound, in a country known to espouse the rule of law, illegal immigration and underground economy activities became a threat to our community, and families. I am now the Director of the Sachem Quality of Life Organization, grassroots organization that was founded to protect our community.
Farmingville is hamlet of 15, 000 people about sixty miles east of Manhattan on Long Island. About a year ago we began to notice large numbers of men, hanging around one area of town near the convenience stores. We were told they were looking for work, and contractors and other employers looking for day laborers would hire them off the street. And, sure enough you could witness this taking place in the morning six days a week. After a few months the numbers of day laborers began to grow. The number of contractors and employers picking up these laborers also began to grow, but there were never enough jobs for all the workers and many weren't hired at all, waiting all day in hope of getting work.
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One Sunday morning in June of 1998 my daughter left our house to go to church. Before she reached her car she was approached by five young men, some she recognized to be the day laborers I just mentioned. They made crude advances and solicitations and frightened my daughter who retreated to the house and waited for them to leave before she felt safe enough to depart for church. The very next day I was riding my bicycle near the convenience store where over a hundred men were crowding the curb, the sidewalk and the parking lot. As I rode by the crowd I was jeered and whistled at and laughed at. When I called the police to report the incident the operator refused to take a complaint or send a patrol car to investigate the incident. That was beginning of an odyssey. A trip through layers of government-bureaucrats and elected officials alike, all who either ignored us, passed the buck as quickly as they could, or paid lip service to our concerns, but haven't lifted a finger to help us.
Currently there are well over 1,000 day laborers in Farmingville. We have learned from local law enforcement, other organizations in our area and the men themselves that these day laborers are in fact, illegal aliens, mostly from same place where chefs working at a local deli come from. I mention this because we understand that this particular merchant is one of the sources of our community's problem, This establishment, along with their neighboring bakery broker men from the home town where their chefs hail from, and hook them up with local contractors who patronize their stores. Needless to say we were shocked to learn this. One isn't surprised to learn of illegal aliens in California, Arizona, Texas or other areas near the border. But Farmingville? Long Island? We were surprised to say the least.
We began locally, asking local police to arrest the illegals and remove them from our town. We were told at that time that local police cannot make immigration arrests. We've since been informed that there is a program that does allow this after some brief training. We were told that this was a federal matter. We went to the feds.
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From the INS we were told they didn't have the manpower to arrest the illegals or the money to hold them in detention. Local police told us that although their policy required them to inform INS that an illegal had been arrested, they had no idea what happened once the report was made. We were discouraged at every level of government we approached. And, as local, state and federal government did nothing to enforce our country's immigration laws, the number of day laborers continued to grow. It seems that the mere lack of enforcement of the law was acting as an encouragement for more to come to our community.
One solution that was offered by local government and charitable organizations was to create a ''hiring hall'' or ''job center'' where the day laborers could ''shape up'' and wait for the employers to come and hire them. The theory behind this suggestion being that all the day laborers would go to the job center and not be crowding city streets, causing traffic hazards and otherwise loiter and be an eyesore or a public nuisance. This suggestion was immediately questioned because these men are illegal aliens and don't have the right to work in our country. The use of public and/or charitable hands to create a hiring hall for illegal alien day laborers is just unacceptable. In fact it is discouraged by federal law. But local agencies kept pushing this solution so we felt we had better find out more about ''hiring halls'' and whether or not they worked.
We contacted grassroots activists around the country and found out that this solution had been tried in many communities in California with no success in getting the day laborers off the streets. Some communities reported that the number of day laborers on the streets actually rose after the job centers were set up. It seems that to the ambitious illegal immigrant who wants to work, when a community has a job center that means that they have jobs. So job centers have a magnet effect. The problem actually got worse in several southern California cities. Job centers have failed to remove day laborers from the streets in Los Angeles, San Francisco, and Orange County. Some cities have successfully enacted ''non-solicitation'' laws that ban curbside hiring. The city of Agoura Hills, outside Los Angeles, had a hiring hall and abandoned it when it failed to remove the day laborers from streets. They enacted an ''anti-solicitation'' ordinance that was challenged by the
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ACLU in court and was upheld by the California Appellate Court. In San Rafael, in northern California, local citizens threatened to oust the mayor if the city created a job center. The idea was dropped and, coincidentally, the number of day laborers on that city's streets dropped to 1/10 of what it had been the year priorwhile the city was promising to build such a facility. We have found that job centers, or hiring halls or shape up sites, whatever you want to call them, are a bad idea, and has been proven as such again and again because they create the expectation of work and attracts more day laborers into a community. (Jack Bums of the NY INS office gave us the Georgia ordinance. I was grateful that he could support our desire to have a local ordinance implemented, however, I was sad if this was his way of telling us that the responsibility for solution was at the local level and that INS was not going to do anything more than they had.)
But Mr. Chairman, we have expectations too. As citizens we expect the government to enforce the laws, including immigration laws. We expect that those who have entered our country illegally, and have no right to work here legally should not be provided with a social service that helps them find a job that they have no right to. We expect that elected officials should be interested in the problems of their constituents. And we expect the federal government solve a problem that is their direct responsibility.
Now, I have heard the phrase that ''immigrants will do jobs that Americans won't do.'' We all have. Not only do I not believe it, but I find the statement insulting to immigrants and Americans. You can speak to the director of Eastern Farm Workers, Tom Kessler who has told us that the situation in our town, driven by the NAFTA agreement and present federal attitude on immigration amnesties, and illegal immigration is preventing the citizens and legal residents he services from finding work. An investigator for a local labor union has reported that he is unable to place his men because contractors don't want to have union men when they can have men willing to work without all the hassle of legal paperwork and taxes. When did contracting and landscaping become an occupation Americans wouldn't do?
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But, getting back to Farmingville, we are in real fear of losing our community. We are small working class blue-collar community. To most of our citizens the biggest investment we'll ever make is our house. If our property values continue to drop because of this problem we will have nothing. And I can tell you that from my conversations with people around the country, predicting our future is pretty easy.
After the initial influx of illegal aliens learns that virtually no immigration enforcement is likely, no arrests, no deportations, they will phone home, or write home and let their friends and family know the situation. This will result in a second influx if illegal immigrants. After the girlfriends and wives begin to arrive, they will realize that a baby born here is automatically a citizen, regardless of the status of the parents, and that that baby can apply for welfare, AFDC, food stamps, etc. We'll have a mini baby boom and demands on local social services will increase. As the children enter schools there will a demand for bilingual teachers. School costs will rise and with it our already high property taxes.
While most of the illegal immigrants are honest people, a small percentage will be the criminal element. Drug dealing will increase in our community, and with it gang activity, prostitution and gang violence. There will be a need for bilingual police officers, bilingual corrections officers at the jail, and this will also cost more. In our Suffolk County jail there are 984 criminals who are illegal aliens. This is approximately 20% of our detainees.
Some in our community will just move away. Those who leave sooner rather than later will get higher prices for their houses, because as the number of illegals increases, property values will plummet. Our little town will become a ghetto, unrecognizable by those who once lived there, and why? Because all the levels of government who have the power to deal with this situation and protect our quality of life didn't have the will to enforce the law to the benefit of its citizens.
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And these predictions aren't inaccurate, or hard to make. They are based on my discussions with people experiencing the exact same thing we are in Farmingville. And, it isn't just confined to California and other border states anymore. Just this week I have been in touch with people in communities under siege, just like mine. INS is telling them the same things they told me. They don't have manpower or resources to do much of anything. They tell us to go to our local leaders and in turn the local leaders tell us it is a federal issue. These communities are in places you may never have heard of: Arkansas, Albert Lea, Minnesota, Lexington, Nebraska, just to name a few I know of.
These communities are experiencing drive-by shootings. Where there never was a drug problem now pounds of methamphetamines are being confiscated by local police. There have been rapes and murders all within this past year. They have reported that these crimes are being committed by their new alien population and this alien population are mostly illegals. Why is this happening all over our country? It is happening because local businesses prefer the cheap alien labor and are encouraged to solicit for it because local government is told by the federal government that there are no resources or man power to enforce the law. In essence, we are being told that our federal government is sanctioning illegal immigration, the lowering of wages of our own poor and that they don't care what is happening to the quality of life of their constituents.
INS told us they didn't have the manpower or money to arrest and detain illegals. They explained that sweeps are dangerous to their men and not effective. So they wouldn't be doing any. We gave them a detailed report to support probable cause hoping for a more aggressive enforcement posture. It was submitted to them at least 4 different times through different avenues before they would even accept it as a complaint.
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I gave the U.S. Dept. of Labor a 9 page complaint documenting violations. They told me that our complaint did not fit their profile. When I pressed them explaining that some of our complaint did fit their profile they admitted that they would not be able to do anything until other agencies got involved thus insulating them from total liability.
I gave the IRS the same 9 page complaint I gave to the U.S. Dept. of Labor. I was told that I had better be careful because I would be investigated. I since have been but gave the complaint anyway.
Now the solution to this problem of illegal immigration seems pretty simple from Long Island. We need to guard the border better so that so many don't enter the country illegally. Let's use the Army. Seems fitting. We have thousands of troops all over the world guarding other country's borders. It doesn't seem unreasonable to expect them to protect their own country from what appears to be a not-so-slow-motion invasion.
Let's train and deputize local law enforcement to make immigration arrests and help deport the illegals already here. While the Border Patrol only has 7 to 8 thousand officers, there are over 40,000 police departments in this country and hundreds of thousands of local police and sheriff deputies. Let's get them involved. It is allowed under federal law.
What we have found in our little community at the local level is a lack of will to deal with this problem. Maybe that will has to come from the federal government. I don't know. But I do know this. All over this country people are suffering from the non-enforcement of our country's immigration laws. We are watching our communities mutate into something we don't like and don't want and shouldn't have to endure. Please help us protect our community and our country, so we can hand it over to our children in as least as good as shape as we received it. This is our biggest responsibility to future generations. ''Justice delayed is justice denied.'' Your job is to facilitate justice for citizens of the United States of America who pay taxes and vote. We have the right to our borders, quality of life and safe and civil streets and look to you as guardians of these rights.
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Mr. SMITH. Thank you, Ms. Bianculli. I am afraid I need to interrupt our witnesses just for a minute. We are going to consider this bill, and we have the requisite number of members present for a reporting quorum, that being seven.
[Discussion off the record.]
Mr. SMITH. We will return to our first panel. And, Mr. Stoddard, you are up next, if you will give us your testimony. Let me say, too, if I might, that all of your complete testimony will be made a part of the record. But because of the number of witnesses today, we need to ask you to limit your opening statement that we hear to 5 minutes.
So, Mr. Stoddard, we will begin with you.
STATEMENT OF DAVID J. STODDARD, RETIRED U.S. BORDER PATROL EMPLOYEE
Mr. STODDARD. Mr. Chairman, and distinguished members of the subcommittee, thank you for the opportunity to speak to you today. My name is Dave Stoddard. I live in Arizona and I come before you today as a U.S. citizen, a border resident and a retired border patrol agent.
Upon receiving the invitation to speak to you, I interviewed border residents and residents of the interior United States. The following observations and perceptions are not mine alone.
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The United States Government has consistently failed to effectively address the problem of illegal immigration and has no credibility in the world in respect to its immigration laws. Illegal aliens are becoming more brazen, arrogant and violent. The United States continues to be flooded with illegal aliens. This country can no longer absorb the people that other countries find burdensome. The added costs to public schools, social programs, penal institutions, public services, health care and quality of life has been enormous.
The U.S. taxpayers would rather send aid to foreign countries than have those countries send their problem citizens here. Other than Mexican aliens when arrested are released with documents allowing them to remain in the United States, supposedly temporarily. This rewards illegal entry and encourages others to do the same. This continues to erode the credibility of the immigration laws.
Compounding the above facts is a recent decision of INS not to arrest domiciled aliens in the interior. This encourages yet more illegal immigration. The U.S. immigration laws already in effect, if conscientiously and humanly enforced, would be effective. For the good of the country, they must be enforced in spite of the shrill cries and objections of special interest groups.
Immigration enforcement is not a race issue, not xenophobic and not inhumane. It is a matter of national interest. The vast majority of the American people want our immigration laws enforced; this includes millions of Mexican Americans who are seeing increased crime, overpopulation in their neighborhoods and lowered standard of living.
Page 32 PREV PAGE TOP OF DOC INS has failed miserably to enforce immigration laws and render services to constituents. For the good of the country, it must be competently managed and restructured, or INS must be disbanded and its functions assumed by other agencies. I recommend the plan submitted by Susan Martin and the U.S. Commission on Immigration Reform.
The morale in the U.S. Border Patrol is at an all time low. There is a belief that funds allocated by Congress for the Border Patrol are not used for their intended purpose. And in the Tucson sector, there are 3 helicopters that don't fly at night; the time when they were needed most. There are no permanent checkpoints in the Tucson sector, thereby allowing a corridor for movement of aliens into the interior of the United States through Arizona.
Agents are endangered by poor radio communications due to the lack of frequencies. Sensor equipment is incomplete, outdated or malfunctioning. The fact is that the border patrol has been and will apparently continue to be the bastard child of INS. The Mexican government is zealous in its efforts to protect Mexican citizens in this country.
Yet border area residents rely in vain upon the U.S. Border Patrol for protection while their right to be secure in their homes and property is being violated by citizens of other countries. Every day homes get ransacked and property destroyed or stolen. Ranchers who rely upon their stock and land for a livelihood have their fences repeatedly torn down, stock stolen or injured and wells damaged. Border residents have been held at gun point while thugs from Mexico take valuables and terrorize families.
U.S. citizens have been injured or killed by illegal aliens driving wildly in a rush to get out of the border area with loads of people or dope. Something must be done to protect border area residents from illegal aliens. A viable illegal alien abatement program must contain these elements: Control at the borders, along coast lines and at ports of entry; detection and removal of domiciled aliens; enforcement of the employer sanctions provisions of the law, an effective anti-smuggling program; fraud and false document detection; credibility.
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I am now ready to answer any questions to the best of my ability.
[The prepared statement of Mr. Stoddard follows:]
PREPARED STATEMENT OF DAVID J. STODDARD, RETIRED U.S. BORDER PATROL EMPLOYEE
Mr. Chairman, and distinguished members of the subcommittee, thank you for the opportunity to speak to you today. My name is Dave Stoddard, I live in Arizona and I come before you today as a U.S. Citizen, a border resident and a retired Border Patrol Agent. I have lived and worked on the Mexican Border for most of my life.
Upon receiving the invitation to speak to you, I interviewed border residents who are Mexican Americans and others who are Anglos. I also spoke to high- and low-ranking sheriff's deputies, Border Patrol officers, small- and large-scale ranchers, and residents of the interior United States. I am not alone in my observations and perceptions.
When I entered the U.S. Border Patrol in 1969, illegal aliens were mainly former braceros. They wanted to work in agriculture until the harvests were over and then return to their homes to repeat the cycle next season. They were honest, hard working, polite and otherwise law-abiding. By the middle and late seventies, illegal females and family groups of all nationalities were commonplace. Numbers of illegal aliens entering this country continued to climb and became a virtual stampede upon news of a possible amnesty in 1986. After 1986, thousands more entered hoping to take advantage of the amnesty program. Fraud was rampant, to say the least. Numbers of people illegally in our country have continued to rise dramatically. Today this country is in a crisis of catastrophic proportions. We can no longer be a receptacle of the poor, unskilled, under-educated and other individuals that other countries find burdensome. There are also those who come simply because they are unwilling to remain and fight the battles of life in their own country. The added cost to public schools, social programs, penal institutions, public services, health care and quality of life has been enormous. It has been estimated that immigration, legal and illegal, costs every American taxpayer at least $750 annually. I think the taxpayers would rather send foreign aid to other countries than have their citizens illegally in the United States adding to the poverty level and social problems.
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Today the United States is undergoing a large scale invasion of Mexican, Central and South American entrants. Notice I use the term ''entrants'' while others may use the term ''illegal immigrants''. Only a small fraction of these individuals are true immigrants. They come for economic and other reasons and not to assimilate into the American way of life. They intend to remain in the United States long enough to accomplish the purpose for which they came and then to return to their country of origin. The very word ''emigrant'' connotes someone willing to leave loved ones, and abandon a former country in order to adopt a new country and a new way of life. The entrants of today intend to remain loyal to their homeland and assume that eventually they will be caught and removed from the United States. As an unintended consequence some put down roots, acquire equities and remain.
Not all come to work. The United States has become a home for unwed mothers. Illegal mothers receive medical attention at taxpayer expense. Then after giving birth to a U.S. citizen child, they become eligible for low income housing, welfare, food stamps, WIC and possibly other programs, all for the benefit of the child. Of course, the more children, the better the benefits. Illegal aliens seldom pay their hospital bills and the cost of their care is born by taxpayers or the paying clients of the facility.
Illegal Mexican aliens generally have the attitude that they are coming to a land that is rightfully theirs. The Mexican government officially and actively encourages its citizens to illegally enter the United States.
Aliens who enter at whatever point along the U.S.-Mexico Border and evade apprehension can travel to any place in the United States, stay for as long as they want and do whatever they want without any real fear of removal. Put more simply, the Border Patrol is nothing more than a speed bump on the way north to safety. There is little wonder that assaults and violence against officers and border residents are rising alarmingly.
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There are groups all across the southwest protecting the rights of illegal aliens. These organizations intensely scrutinize the actions of any border resident or citizen who needs to use force against an illegal alien. These aliens rights groups are usually alerted by the Mexican consul after the consul has been notified of an alien injury by U.S. authorities. The Mexican government is zealous in its efforts to protect Mexican citizens in this country to the point of filing protests and retaining attorneys. Yet, border area residents rely in vain solely upon the U.S. government for protection while their constitutional right to be secure in their homes and property is being violated by citizens of foreign governments. Every day homes get ransacked, and property stolen or destroyed. Ranchers who rely upon their stock and land for a livelihood have their fences repeatedly torn down, their stock stolen or injured, their wells damaged and their vehicles stolen. Ranchers in the border area have had stock killed, property destroyed, or a fire set in retaliation for calling the Border Patrol. Border residents have been held at gunpoint or tied up while thugs from Mexico take valuables and terrorize families. The Mexican government would not tolerate this for an instant if the situation were reversed.
Illegal aliens are becoming more brazen, arrogant and violent It is impossible to separate illegal alien traffic and narcotics traffic. Mexico is doing nothing to alleviate the problems caused by its citizens. The United States is in a crisis and to allow it to continue is unacceptable.
The United States government has consistently failed to effectively address the problem of illegal immigration to this country and has no credibility in the world in respect to its immigration laws.
Page 36 PREV PAGE TOP OF DOC In 1986 the Immigration Reform Amnesty Act was enacted. The requirements of IRCA were such that hardly any illegal aliens qualified. They didn't qualify because the patterns of illegal immigration were such that aliens would enter this country for a temporary period of time and then return to their country of origin only to repeat the pattern time and gain. IRCA required applicants to show continuous residence in the U.S. by producing receipts and other documentation. Since many aliens didn't have the required residence, they couldn't qualify. The administration was embarrassed by the lack of applicants so an intense effort was made to encourage applications in spite of the lack of qualifications. A market for forged and counterfeit documents flourished. INS officials were told not to question documents too closely. Furthermore, aliens were approved who, during their interviews, said they did such impossible tasks as pick strawberries from trees. Word quickly spread throughout the illegal alien community, and in foreign countries, that INS would accept false documents and not attempt to uncover fraud. In a short time IRCA precipitated class action suits, injunctions and extensions that made it a farce.
As a social consequence of IRCA, since many Mexican citizens are naturalizing as U.S. citizens, Mexico passed a law retroactively giving dual citizenship to Mexicans who naturalize as U.S. citizens. Furthermore, people born in the United States of a Mexican National parent can also be a dual citizen under this law. Also, a spouse of such a derivative Mexican citizen can apply for and be granted Mexican citizenship. Therefore, I, having married a first generation U.S. citizen of a Mexican parent, can apply for and be granted Mexican citizenship. The result is that Mexican nationals who become U.S. citizens retain their loyalty to Mexico and can vote in Mexican elections. My concern is that millions of people in the United States can vote in Mexican elections on issues affecting Mexico, and those same people will vote in U.S. elections on issues affecting Mexico. Proposition 187 in California is an example of the conflict of interest that can arise. Mexico is now considering methods to allow dual citizens to vote in Mexican elections without their having to leave the United States to do so. America's national sovereignty will suffer if this is allowed to happen.
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Prior to the 1996 elections the Clinton administration was too eager to naturalize thousands of immigrants in time to vote democratically in the upcoming elections. Consequently, INS naturalized many, possibly thousands, of unqualified aliens in a hurried and frequently fraudulent manner. The agency allowed outside contractors to administer tests whose priority was quantity and not quality.
Also, during the last Cuban boatlift, the Attorney General of the United States, Janet Reno, announced on national television that not one Cuban picked up at sea would ever set foot onto U.S. soil. Quietly and without fanfare, every Cuban held at Guantanamo (all of which had been picked up at sea) was brought to the United States and released. This act was widely publicized in Mexico.
Other than Mexican aliens (OTM) when apprehended by immigration officers, are processed and released other than being held for removal. They are released with documents allowing them to remain in the United States, supposedly temporarily. That rewards illegal entry and encourages others to do the same. The odds of their ever being removed are small. This too erodes credibility.
Many immigration laws passed by Congress, in some way, rewards illegal entrants thereby contradicting the position that the United States is against illegal entry.
In 1997 President Clinton promised the President of Mexico that there would be no ''mass'' deportations during his administration. This was taken as an invitation by many different nationalities.
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Compounding the above facts is the recent decision of INS not to arrest domiciled aliens in the interior, in blatant disregard of its mandates from Congress, while those who wait to legally immigrate are punished by an INS unwilling or unable to effectively respond to either enforcement or service functions but is stagnant somewhere in between.
There is no small wonder that the United States immigration policy is in shambles and has no credibility.
The morale in the U.S. Border Patrol is at an all time low. Although the agency has increased in strength from around 1200 agents when I entered on duty to almost 9,000 today, it is not allowed to do its job. There is a belief that funds which are allocated by Congress for the Border Patrol somehow are not used for their intended purpose. In the Tucson Sector there are 3 helicopters which don't fly at night, the time of day when they are needed most. There are 15 sets of night vision devices for a crew of 1000 agents. On a smaller scale, Naco station has two sets of night vision devices for 60 agents. One set does not work. There are no permanent checkpoints in Tucson Sector thereby allowing a corridor for movement of aliens into the interior United States through Arizona. Agents are endangered by poor radio communications due to a lack of frequencies. Sensor equipment is incomplete, outdated or dysfunctional.
Yuma Sector is unable to continuously man its critical checkpoints to deter smuggling.
The fact is that the U.S. Border Patrol has been and will apparently continue to be, the bastard child of INS.
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The INS Commissioner is incompetent, while the top 10 managers in her administration are inept and devoid of enforcement or INS experience. (There may be an ex-military policemen within the top 10 managers, but I don't consider being an MP as real federal enforcement experience.) The primary objectives of INS seems to be geared towards service and not offending Mexico rather than protecting the integrity of the United States from foreign invaders.
For the good of the country INS must be competently managed and restructured. Or, INS must be disbanded and its functions assumed by other agencies. I personally recommend the plan submitted by Susan Martin and the U.S. Commission on Immigration Reform. I cannot believe that it would take 3 to 5 years to implement, but if so, we must begin reform at some point and now is a good time.
The U.S. immigration laws already in effect, if conscientiously and humanely enforced, would be effective. For the good of the country they must be enforced, in spite of the shrill cries and objections of special interest groups. Immigration enforcement is not a race issue, it is not xenophobic, it is not unpatriotic, and it is not inhumane. It is a matter of national security. The vast majority of the American people want our immigration laws enforced. This includes millions of Mexican Americans who are seeing increased crime, overpopulation in their neighborhoods, and lowered standard of living.
A viable illegal alien abatement program must contain these elements:
1. Control at the borders, along coastlines and at Ports of Entry.
Page 40 PREV PAGE TOP OF DOC 2. Detection and removal of domiciled aliens.
3. Enforcement of the employer sanctions provisions of the law.
4. An effective anti-smuggling program.
5. Fraud and false document detection.
I am now ready to answer any questions to the best of my ability.
Mr. SMITH. Thank you, Mr. Stoddard.
STATEMENT OF PETER KWONG, DIRECTOR OF ASIAN-AMERICAN STUDIES, HUNTER COLLEGE, CITY UNIVERSITY OF NEW YORK
Mr. KWONG. Mr. Chairman, and members of the subcommittee, there are no signs that the flow of illegal immigration into this country has slowed down since the passage of the 1996 Immigration Act, at least not as far as can be noticed by those of us who observe from the ground up. What we have found is the dramatic increase in the fees charged by human smugglers and the new sophistication in the methods used by the smuggling network.
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Today, Indians pay up to $28,000 to be smuggled illegally into the United States. For the Chinese the prices have gone up to $50,000. The original sources of illegal immigration from China have spread from southern cities of Fuzhou and Wenzhou to Shanghai, Peking, Qingdao and cities in the north. To avoid detection by American authorities along the Pacific Coast the snakeheads, meaning the smugglers, have developed dozens of alternative roots through the Caribbean Islands.
These days fewer illegal immigrants are coming by ship or across the U.S. border by land. They are increasingly coming by plane. They are arriving daily, holding counterfeit or even valid visas from dozens of originating points around the world, through the weak customs control that has to contend with thousands of scheduled daily fights into the country. The problem we face is not the deficiency of the INS and border control, that can be easily fixed by increased budgetary appropriations. What we have is a misdirected supply side illegal immigration policy.
By looking to arrest and interdict individual illegal immigrants, we are ignoring the fundamental factors of illegal immigration, namely, American employers' demand for cheap and vulnerable labor. In fact, this country is so addicted to immigrant labor that without it many in businesses will not survive.
So long as the employers are willing or rather even prefer to hire illegals, the human smugglers can be assured of regular payments. The system of illegal immigration begins with the employers hiring and paying the illegals and ends up with the smugglers being paid off for their services to complete a full circle.
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Snakeheads in China in the meantime have emptied village after village in southern coastal regions of all the young able-bodied labor, smuggling it to Western Europe, Australia, Japan and North America. It is my belief that international human smuggling networks are the driving force of illegal immigration. They dictate the size of the illegal immigrant influx into this country. In concert with America's greedy employers, they have reduced American working standards to a Third World 19th century level. Working 7 days a week, 12 hours a day at an average hourly rate of 3.75 or less, without overtime and health care benefits is common among many of the illegals. What is worse, many employers are even withholding workers' wages.
At the same time, the illegals who are unable to pay are virtually held in indentured servitude; others are driven to become prostitutes and drug dealers. While all of this goes on, the law enforcement authorities have been slow to react. They blame it on the lack of funding. They blame the victims and immigrant communities for not coming forward. But this typical official response does not address the criticisms raised by the immigrant communities who charge that the passive response by the officials endangers the lives of those who do come forward. The result is a stalemate between the law enforcement and the smuggling syndicates with the latter free to operate at will.
We should turn to a demand side approach. First, there has got to be strict enforcement of the labor laws. The Labor Department should prosecute all complaints, be they from American born, legal or illegal immigrant workers, in order to take away the employer's incentive to single out illegal immigrants for exploitation. This would dry up funds which are used to pay off the smugglers and disrupt the circle of illegal immigration.
Page 43 PREV PAGE TOP OF DOC Second, the most difficult aspect of dealing with human smuggling for law enforcement is the lack of accurate information. Undocumented aliens who have entered this country through the service of the human smuggling network and who are willing to cooperate with law enforcement by providing details of the smuggling process by divulging names of those who prey upon them and by standing in court as witnesses should expect adjustment of their immigration status. The possibility of extending S-visas toward this purpose should be considered seriously.
I know the critics will object, because these proposals seem to reward criminals, the illegals. But the employers who hire the illegals are also violating American laws, and so are the smugglers. The crime of the latter two groups are far more damaging to our national interests than those committed by the individual illegal immigrants. Effective, successful prosecution of just 5 to 10 cases will send a shockwave throughout the smuggling network. It would dramatically transform the attitude within immigrant communities and greatly heighten their desire to cooperate with American law enforcement.
Amnesty for a few victims under these circumstances would be a small price to pay. Reducing illegal immigration is vital to our national interests. We should expect cooperation from the countries where illegal immigrants originate. The United States should present the issue of human smuggling as the top national concern for discussion in all negotiations with China. The United States should seek assurance from that government that relatives and individuals who cooperate with the United States law enforcement would be given full protection against retribution in China.
A final point, curtailing illegal immigration does not mean being anti-immigrant. Curtailing human smuggling operations protects the interests of all immigrants. People come to the United States to fulfill their dreams of finding well-paying jobs and achieving a high standard of living, while enjoying full political freedom and legal protection. We should not let our immigration policy undermine our ability to preserve America as the land of these fine features so eagerly sought by immigrants.
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[The prepared statement of Mr. Kwong follows:]
PREPARED STATEMENT OF PETER KWONG, DIRECTOR OF ASIAN-AMERICAN STUDIES, HUNTER COLLEGE, CITY UNIVERSITY OF NEW YORK
Mr. Chairman and Members of the Sub-committee:
There are no discernible signs that the flow of illegal immigration into this country has slowed down since the passage of the 1996 Immigration Reforrn and Immigration Responsibility Act, at least not as far as can be noticed by those of us who observe from the ground up. What we have found is the dramatic increase in the fees charged by human smugglers and the new sophistication in the methods used by the smuggling networks.
Today, Indians pay up to $28,000 to be smuggled illegally, into the U.S. For the Chinese, the prices have now reached $50,000 (they were $33,000 at the time of the Act's passage). In addition to the original sources of illegal migrationthe southern cities of Fuzhou and WenzhouChinese today come illegally from Shanghai, Beijing, Tianjin, Qingdao and many other cities in the north. To avoid detection by American authorities along America's Pacific coast, the snakeheads (smugglers) have developed dozens of alternative routes through the Caribbean Islands. But these days fewer illegal immigrants come in by ship or cross the U.S. borders by land. They are increasingly coming in by air. These illegals, holding stolen or counterfeited passports, are allowed to board U.S. -bound planes by unsuspecting airline officials or by the paidoff ground security personnel. They are arriving daily at a number of U.S. airports from dozens of originating points around the world. Thousands penetrate easily through the weak customs control which has to contend with thousands of scheduled daily flights into this country. If discovered, they can always appeal for political asylum and be released on bail.
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Unfortunately, the problem we face is not the deficiency of the INS and the Border Patrol that can be easily fixed by increased budgetary appropriations. What we have is a misdirected supply-side illegal immigration policy. By looking to arrest and interdict individual illegal immigrants, we are ignoring the fundamental factor of illegal immigrationnamely, American employers' demand for cheap and vulnerable labor. In fact, this country is so addicted to immigrant labor that without it many American businesses in agriculture, the garment, and poultry industries would not survive. We have become so used to immigrants working in the restaurant, service and domestic-help trades that we are not even conscious of their presence in our midst.
So long as the employers are willing, or rather even prefer to hire the illegals, the human smugglers can be assured of regular payments derived from their labor. The system of illegal immigration begins with the employers hiring and paying the illegals and ends up with the smugglers being paid off for their services to complete a full circle. True, poor people from all over the world want to move to places with higher wages and better opportunities, especially since the end of the ''Cold War'' and the current global economic depression striking much of the world outside of the United States. But, individuals can not move easily fi7om one continent to another without the professional help. Without the smugglers, illegal migration would be limited in numbers and distances covered.
The huge profits in the smuggling business have attracted some of the most sophisticated operators in international organized crime, including many previously involved in trans-border trafficking of heroin, Stinger missiles, or counterfeit currencies. According to Jonas Widgren of the International Center for Migration Policy Development, smuggling rings reap profits up to
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U.S. $9.5 billion per year, earning more than many drug cartels. Nowadays, smuggling has developed to the point where anyone anxious to escape Fuzhou or Lagos or Krakow or Kabul can find a smuggler right in his neighborhood who can guide him to almost any destination in the world. The snakeheads in China have emptied village after village in southern coastal regions of all the young able-bodied labor, and dispatched it to Western Europe, Australia, Japan, and North America.
It is my belief that international human smuggling networks are the driving force of illegal immigration. They dictate the size of illegal immigrant influx into this country. In concert with America's greedy employers, they have reduced America's working standards to a 19th century level. This has happened because the illegals, pressured by the snakeheads are willing to work under almost any circumstances, just to be able to continue their smuggling debt payments. Working seven days a week, 12 hours a day, at an average hourly wage of $3.75 or less, without over-time pay or health care benefits is common for many illegal immigrant workers. What's worse, many employers withhold workers' wages for months at a time. Eventually they can completely escape accountability by manipulating loopholes in our bankruptcy laws. At the same time, the illegals who are unable to satisfy the demands of the snakeheads in timely fashion are driven to become prostitutes, gangsters and drug smugglers. The presence of illegal workers has enhanced the power of the employers who pit them against the legal workers, damaging the working conditions for all of them.
While all this goes on, the law enforcement authorities have been slow to react. They blame their inaction on the lack of funding. They blame the victims and immigrant communities for not coming forward with incriminating information. This stereotypical official response does not address the criticism raised by the immigrant communities, who charge that the slow and passive response by the officials endangers the lives of those who do come forward. The result is a stalemate between the law enforcement and the smuggling syndicates with the latter free to operate at will, treating the immigrant communities in the U.S. as foreign territory.
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We should turn away from this dead-end alley to a demand-side pro-active approach. First, I am calling for the strict enforcement of American labor laws. The labor department should prosecute all complaints, promptly and effectively, be they coming from American-born, legal or illegal immigrant workers, in order to take away the employers' incentive to single out illegal immigrants for exploitation. This would lead to the drying-up of funds which are used to pay off the smugglers, and would thus disrupt the cycle of illegal immigration.
Second, I suggest that the human smugglers be attacked head-on, by encouraging the illegals to cooperate with the law enforcement. The most difficult aspect of dealing with human smuggling is the lack of accurate information on the criminal enterprise, and getting people to testify in courts once the criminals are apprehended. The people who know about the smuggling operations are the illegal aliens themselves, and right now there are no incentives for them to come forward. For the law enforcement to get the upper hand in the situation, it would have to make it clear to the illegals that they would be protected by the U.S. institutions should they come forward. Undocumented aliens who have entered this country through the services of the human smuggling networks and who are willing to cooperate with the law enforcement by providing details of the smuggling process, by divulging names of those who prey upon them, and by standing in court as witnesses should be able to expect an adjustment of their immigration status. In order to assist law enforcement investigations, the possibility of expanding and improving the access to S-Visas towards this objective, or even enacting legislation in the spirit of the Violence Against Women Act should be seriously considered.
I know the critics will object, because both of these proposals seem to reward criminals, i.e. those who have entered this country illegally. My answer is that the employers who hire the illegals are also violating American laws, and so are the smugglers. The crimes of the latter two groups are far more damaging to our national interests than are those committed by individual illegal immigrants. Moreover, if the government were to prosecute successfully five to ten cases, it would send a shock wave through the smuggling network, as well as throughout the immigrant communities. Right now most immigrants fully appreciate the harm of the smuggling syndicate but are powerless to fight back. Effective prosecution of just a few criminals would dramatically transform the attitudes within the immigrant communities and greatly heighten its desire to cooperate with the law enforcement. Amnesty for a few victims, under these circumstances, would be a small price to pay in stopping indentured migrant labor trafficking and the present practice of targeting certain racially distinct immigrant groups as ''exploitable'' low wage workers. This practice is literally turning them into permanent caste-like sub-groups, whose very existence violates the most basic American democratic principles of fairness, justice, and equal opportunity.
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It is my belief that reducing large numbers of illegal immigrants used as cheap and vulnerable labor is vital to our national interest. In protecting this interest, we should expect fall cooperation from the countries where the illegal immigration originates. In so far as the Chinese C) human smuggling into the U.S. is concerned, it can never be effectively dealt with without the cooperation of the government in China. Therefore, the United States should present the issue of human smuggling as the top national concern for discussion in a fbture bi-lateral negotiations with China. At the same time, the U.S. should seek assurances from the government that relatives of individuals who cooperate with the U.S. law enforcement will be given full protection against retribution in China.
A final point: curtailing illegal immigration does not mean being anti-immigrant. Curtailing human smuggling operations protects the interests of all immigrants. No immigrant comes to America in search of Third-World conditions. People come to America to fulfill their dreams of finding well-paying jobs and achieving a high standard of living, while enjoying full political freedom and legal protection. We should not let our immigration policy undermine our ability to preserve America as the land of these fine features, so eagerly sought by all immigrants.
Mr. SMITH. Thank you, Professor Kwong.
STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, FEDERATION FOR AMERICAN IMMIGRATION REFORM
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Mr. STEIN. Mr. Chairman, thank you very much for the opportunity to appear today to present FAIR's views on the problem of visa overstays. Mr. Chairman, we would first like to applaud your work in this field for the last several years. Under your leadership, the Congress has passed a variety of very important provisions which properly enforced, would take us a long way toward solving the problem of illegal immigration.
Working to stem the tide of illegal immigration is good politics. It is good politics what the Congress did in 1994, '95 and '96, and those members who worked on it have all been handily reelected, I might add. FAIR is a concerned citizens group of 70,000 members nationwide who believe that today's immigration levelsthat are leading us to 400 million people by the year 2050are not in the national interest.
Twenty years ago, CSpan was founded. Well, 20 years ago so was FAIR, and 20 years ago the commission chaired by Father Theodore Hesburg issued its recommendations whichhad they been introduced and implemented on a timely basiswould have obviated the need for the hearing today. There also has been a commission chaired by Barbara Jordanunder her wonderful leadershipthat also made important recommendations that would help bring the problem of visa overstayers under control.
But as has been the expressed by you and many others already today, the Immigration Service has now abandoned a large variety of its internal enforcement policies which would include detecting and removing visa overstayers. The new immigration enforcement policy effectively abandons all interior enforcement.
Page 50 PREV PAGE TOP OF DOC Mr. Chairman, what are we to make of an Immigration Service that has virtually abandoned its mission of enforcing nonimmigrant visa compliance? What are we to make of an INS unwilling to implement measures that will begin to track the rate of land border entering nonimmigrant overstays? Mr. Chairman, this issue is ultimately about hope, people wanting to improve their lives. It is about exploitation. It is about greed. And these are powerful forces in our American political establishment.
Unfortunately, today, the INS endorses the idea of equal opportunity deportation. So far as interior enforcement goes, there is an equally bad opportunity of deportation. Nobody is getting removed. Is it because the size of the illegal population has so blossomed that neither Congress nor the administration has any hope of removing it? Is it because the political weight of the private interests, like employers that use illegal labor, have become so powerful and so demanding the INS has no choice but to capitulate?
Is it because the INS has consistently reacted to new enforcement responsibilities by sacrificing important old ones? Is it because the immigrant ethnic community interests have become so large and so well organized and so highly concentrated that they have convinced the INS that the political costs of interior enforcement or implementing important provisions of the 1996 law are not worth the political cost, or is it because the court-imposed administrative machinery and detention costs of removing aliens who have legally entered the country have become so overwhelming that large-scale detention-removal of illegal alien overstays are just not feasible, or is it just something of all of the above?
I think it is to some extent all of the above. The work that Margaret Bianculli's great organization is doing is typical of many organizations around the country, but they are facing the same bureaucratic frustrations because of the unwillingness of State and local governments to work with the INS in detecting, apprehending and removing those who overstay their visas. Our recommendations include, first, that section 110 of the 1996 law which mandates an electronic border entry-exit control system be implemented as soon as expeditiously possible.
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This is not technologically infeasible. All the technology for all of these items is available and, as we know from Amazon.com's ability to do inventory control, it is a matter of a bureaucratic incompetence, not incapability or incapacity to do this sort of thing. And we strongly oppose the efforts of Members of the Senate to repeal section 110. We need a mandatory work verification system. Barbara Jordan's commission recommended it, every other commission that has studied it has recommended it.
Section 656(b) of the 1996 law which puts in place the structure to verify the authenticity of data submitted for driver's licenses is very important and those Department of Transportation regulations have been held up, much to our chagrin. Obviously, the INS must be involved in removing illegal workers when they are apprehended, and that includes doing work site enforcement.
In addition to that, we need strong administration support for section 133 of the '96 law that empowers local jurisdictions to work with INS in removing illegal workers, illegal aliens on the job sites. The efforts of the orchestrated national campaign to try to raise objections to those sorts of agreements is manifest, and I think speaks to the growing political power of those organizations which are now working with employers to try to prevent the enforcement of these important new laws.
And, ultimately, we have to start to look at the breeder documents, particularly birth and death records, establish fraud-proof birth records and link them to a national birth/death registry so that at all points of contact employees, government service providers and the INS can verify whether a person is a citizen, if they are an alien, what kind of alien, do you have a right to be in this country.
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Thank you for the opportunity, Mr. Chairman, I would be happy to answer any questions.
[The prepared statement of Mr. Stein follows:]
PREPARED STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, FEDERATION FOR AMERICAN IMMIGRATION REFORM
Americans understand that temporary visas are designed for the use of visitors whose business or pleasure here is of a temporary nature. They do not understand the nonimmigrant visa to be a pathway to permanent residence, a vehicle into the country to enable the alien to poke and prod in search of ''green card'' opportunities. In millions of cases, that, in fact, is what it has become.
Visa overstayers in the interior of the country are rarely apprehended and removed. Interior enforcement has virtually collapsed. The new INS Interior Enforcement Strategy memo dated January 1999 lays out the painful truth: the INS has completely surrendered the task of finding and removing illegal aliens in the interior. The only exception? Those aliens who have committed ''aggravated felonies'' independent of their serious immigration law violations.
Today millions of aliens around the world know that if they can misrepresent facts to a U.S. consul and through the cursory INS screening process enter the U.S. under color of law, there is virtually no followup to verify whether they have left the country at the end of their permitted stay. The INS estimated in October 1996 that there were five million aliens residing illegally in our midstall virtually ignored by INS; two-fifths of them were visa overstayers (probably more). That means there are at least two million visa overstayers residing in the U.S. illegally, and the number is growing.
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INS conservatively estimates a net increase in resident illegal aliens each year at 275,000; of that number, more than 100,000 are net new visa violators annually. The steady increase in the resident illegal population should not be surprising: The INS enforcement stance is focused almost exclusively on removing recidivist border violators at ports of entry and on criminal aliens following release from punitive imprisonment.
The recommendations that FAIR offers constitute an important step in restoring interior enforcement as a deterrent to illegal immigration:
Insist that INS assign a high priority to putting in place the entry-exit record keeping system mandated by IIRAIRA 110;
Adopt a mandatory, national system of work authorization verification; and
Require the INS to resume enforcement against illegal alien workers by removing them from the country.
In addition to those major initiatives, other related measures that are needed include:
Give publicity to the IIRAIRA 133 provision in order to empower local jurisdictions to act directly on local illegal alien problems and extend the reach of the INS in the interior;
In anticipation of greater efforts by illegal aliens to assume the identity of deceased Americans, further the establishment of secure ''breeder'' documents and birth-death record links.
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Mr. SMITH. Thank you, Mr. Stein.
STATEMENT OF ELISA MASSIMINO, DIRECTOR, LAWYERS COMMITTEE FOR HUMAN RIGHTS
Ms. MASSIMINO. Yes, thank you. Chairman Smith, Congressman Jackson Lee, members of the subcommittee, I appreciate the opportunity to join you again to present the Lawyers Committee's perspective on the important and complicated issue of alien smuggling.
You will hear testimony this afternoon from a number of witnesses who approach the issue of alien smuggling as a daunting law enforcement problem, and it is certainly that. Those who traffic in human cargo are criminals, in some cases of the most brutal sort, and clearly are deserving of punishment.
I am here today to offer an additional perspective to your analysis, that of the victims, which I hope you will keep before you as you grapple with how best to address this difficult problem.
As an outgrowth of our human rights work, the Lawyers Committee operates one of the largest and most respected pro bono asylum representation programs in the country. Through this program, attorneys with the Nation's leading law firms volunteer their services to help refugees applying for asylum. Every day in the course of this work we hear firsthand the painful personal stories of those who have fled rape, torture and political repression in their home countries in search of a safe haven in ours.
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Many of those we represent were forced to flee their countries irregular and even illegal ways. Few of those whose only avenue of escape is by illegal means understand the details of the travel arrangements that resulted in their arrival in the United States. Many had never traveled outside their own countries before and knew only that they would do anything to escape the oppressive situations that they faced at home.
Those who were desperate enough to resort to smugglers for their passage were completely unprepared for the horror that awaited them. In New York and Washington, the Lawyers Committee interviewed dozens of survivors of the now famous Golden Venture accident that were held in INS detention centers and local jail facilities. The stories of misery and degradation we heard were chilling. Crew members were abusive and sexually assaulted the female passengers. Only one bathroom was made available for several hundred passengers, 27 of whom were women.
Food was scarce, especially toward the end of the journey. Some passengers had been on the ship for more than 3 months. None were permitted by the crew to disembark at any of the several stops made along the way. The abuse suffered by smuggled immigrants frequently continues even after arrival in the United States. Those who are apprehended and placed in INS detention are, in one sense, the lucky ones. Respondents in a study done by Professor Ko-Lin Chin, a sociologist at Rutgers University, reported being held captive upon arrival in so-called ''safe houses'' by an arm of the criminal enterprise which brought them here. Many were beaten daily, handcuffed, hosed down with cold water, made to perform menial labor and charged $100 for phone calls to China to arrange for payment of the fee for their passage.
Page 56 PREV PAGE TOP OF DOC Some were severely tortured and threatened with death if they could not secure payment quickly enough to satisfy their creditors. One 15-year-old girl was raped by her captors who kept a telephone line open to her relatives in China during the ordeal.
It is particularly important to remember that among those who enter into this devil's bargain by contracting with smugglers who reach the United States, many do so because it is their only means of escape from countries where they suffer profound violations of human rights.
International law protects the right of all individuals to flee in such situations. Article 14 of the Universal Declaration of Human Rights provides that everyone has the right to seek and to enjoy in other countries, asylum from persecution. Those who exercise this right no longer benefit from the protection of their home countries and thus are entitled to special protection by the international community.
The United Nations Convention relating to the Status of Refugees, on which our 1980 Refugee Act was grounded, outlines U.S. obligations toward those who meet the requirements of refugee status. And the Convention Against Torture and Other Cruel, Imhuman or Degrading Treatment or Punishment, to which the United States became a full party in 1994, obligates the U.S. to refrain without exception from returning any individual to a place where there is a substantial likelihood that he or she would be in danger of being subjected to torture.
We must be conscious of these obligations when formulating a domestic legal framework for dealing with those who attempt to enter the United States clandestinely. I do not contend that all or even most of those who attempt to enter the United States in this manner fall into this category. But a look at many of the countries from which smuggled immigrants are comingChina, Iran, Sudan, Iraq, Cubashould give us reason for pause.
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The U.S. response to the Golden Venture episode was, in part, to single out Chinese asylum seekers for mandatory detention without the possibility of parole, in order to send a message to other would-be immigrants that attempts to enter the United States by illegal means would be dealt with severely. From our perspective, this is the wrong pressure point to solve the problem. The result of the U.S. policy was that many of the passengers of the Golden Venture who had credible claims for asylum were denied meaningful access to counsel and detained, unnecessarily and at taxpayer expense, some for nearly 4 years before their situations were finally resolved.
The injustice of the prolonged detention of these men and women who had suffered so much both in China and at the hands of smugglers during their month's long journey to the United States galvanized a community based grassroots movement across the country.
Victims of persecution flee whenever and however they can. That fact is self-evident. The exact contours of the right to flee are a product of the tension between that right and the prerogative of countries to regulate their borders. Both American tradition and U.S. law, as well as international law, require that those who flee persecution, however they accomplish that flight, must not be forcibly returned to a place where their lives or freedom would be threatened or where they would be in danger of being subjected to torture.
But regardless of whether the reasons for flight are persecution or a desire for economic betterment, no human being deserves to suffer the shocking abuses committed by smugglers against their human prey. In particular, we are concerned about the potential that in cracking down on criminal smuggling rings those individuals who fled here to escape persecution and torture may be denied protection due to intimidation and expedited procedures and maybe further dehumanized by prolonged and unnecessary detention.
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Mr. Chairman, by the time many smuggled immigrants reach our country they have been victimized twice, once by their governments and once by the smuggler who profits from their fear and misfortune. We urge the subcommittee as it considers how best to address this complex problem to ensure that the United States does not participate in this cycle of abuse.
[The prepared statement of Ms. Massimino follows:]
PREPARED STATEMENT OF ELISA MASSIMINO, DIRECTOR, LAWYERS COMMITTEE FOR HUMAN RIGHTS
Chairman Smith and members of the Subcommittee, thank you for inviting me to testify today. I appreciate the opportunity to be a part of this hearing and to share with you our perspective on this important and complicated issue. The Lawyers Committee for Human Rights is an independent, non-governmental organization. Since 1978, the Committee has worked to protect and promote human rights, holding all governmentsincluding the United Statesaccountable to the standards contained in the International Bill of Human Rights and related international human rights instruments. Our work focuses on creating the legal structures and systems that will help to guarantee human rights protection in the long term.
You have heard testimony today from a number of witnesses who approach the issue of alien smuggling as a daunting law enforcement problem, and it is certainly that. Those who traffic in human cargo are criminalsin some cases, of the most brutal sortand clearly are deserving of punishment. I am here to offer an additional perspective to your analysisthat of the victims which I hope you will keep before you as you grapple with how best to address this problem.
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II. VICTIMS OF SMUGGLING
As an outgrowth of our human rights work, the Lawyers Committee operates one of the largest and most respected pro bono asylum representation programs in the country. Through this program, attorneys with the nation's leading law firms volunteer their services to help refugees applying for asylum. Each year, this extraordinary partnership with the private bar assists hundreds of refugees from more than 70 countries who are seeking protection in the United States. Every day, in the course of this work, we hear first-hand the painful personal stories of those who have fled rape, torture and political repression in their home countries in search of a safe haven in ours.
Many of those we represent were forced to flee their countries in irregularand even illegalways. Few of those whose only avenue of escape is by illegal means understand the details of the travel arrangements that resulted in their arrival in the United States. Many had never traveled outside their own countries before and knew only that they would do anything to escape the oppressive situations they faced at home. Those who were desperate enough to resort to smugglers for their passage were completely unprepared for the horror that awaited them.
During the 1980's, the plight of immigrants coming clandestinely over the southern border became well known. At the mercy of coyotes, who beat, raped and abused their victim/clients, many were locked in railroad cars or vans and abandoned to suffocate and die. But it was in 1993, when a freighter called the Golden Venture carrying more than 300 Chinese immigrants ran aground at Breezy Point in Brooklyn, that many of us outside the law enforcement community got our first glimpse into the horror of life aboard a smuggling ship.
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In New York and Washington, the Lawyers Committee interviewed dozens of survivors of the Golden Venture accident being held in INS detention centers and local county jail facilities. The stories of misery and degradation we heard were chilling. Crew members were abusive and sexually assaulted the female passengers. Only one bathroom was made available for several hundred passengers, 27 of whom were women. Food was scarce, especially towards the end of the journey. Some passengers had been on the ship for more than three months; none were permitted by the crew to disembark at any of the several stops made along the way.
Two years later, a study by Professor Ko-Lin Chin, a sociologist at Rutgers University, detailed the plight of 300 smuggled Fujianese immigrants who arrived in New York City during the preceding eight years. The stories confirmed what we had learned from the Golden Venture experience. Many immigrants reported being treated like animals by the crews of the ships that carried them here. Women passengers were particularly vulnerable. One woman reported that male and female passengers were separated to ensure that there could be no resistance when the crew sexually attacked the women, a frequent practice. Women were routinely denied food and water until they were willing to submit to intercourse with the crew.
And the abuse suffered by smuggled immigrants frequently continues even after arrival in the United States. Those who are apprehended and placed in INS detention are, in one sense, the lucky ones. Respondents in Professor Chin's study reported being held captive upon arrival in so-called ''safe houses'' by an arm of the criminal enterprise which brought them here. Many were beaten daily, handcuffed, hosed down with cold water, made to perform menial labor and charged $100 for phone calls to China to arrange for payment of the ''fee'' for their passage. Some were severely tortured and threatened with death if they could not secure payment quickly enough to satisfy their creditors. One 15-year-old girl was raped by her captors, who kept a telephone line open to her relatives in China during the ordeal.
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III. THE INTERNATIONAL LEGAL FRAMEWORK
It is particularly important to remember that, among those who enter into this devil's bargain by contracting with smugglers to reach the United States, many do so because it is their only means of escape from countries where they suffer profound violations of basic human rights. International law protects the right of all individuals to flee in such situations. Article 14 of the Universal Declaration of Human Rights provides that ''[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.'' Those who exercise this right no longer benefit from the protection of their home countries and, thus, are entitled to special protection by the international community. The United Nations Convention relating to the Status of Refugees, on which the 1980 Refugee Act was grounded, outlines U.S. obligations towards those who meet the requirements of refugee status. And the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United States became a full party in 1994, obligates the United States to refrainwithout exceptionfrom returning any individual to a place where there is substantial likelihood that he or she would be in danger of being subjected to torture. We must be conscious of these obligations, grounded in fundamental principles of human rights law, when formulating a domestic legal framework for dealing with those who attempt to enter the United States clandestinely.
I do not contend that all, or even most, of those who attempt to enter the United States in this manner fall into this category. But a look at many of the countries from which smuggled immigrants are comingChina, Iran, Sudan, Iraq, Cubashould give us reason for pause.
Page 62 PREV PAGE TOP OF DOCIV. THE UNITED STATES' RESPONSE
The U.S. response to the Golden Venture episode was, in part, to single out Chinese asylum-seekers for mandatory detention without the possibility of parole, in order to send a message to other would-be immigrants that attempts to enter the United States by illegal means would be dealt with severely. From our perspective, this is the wrong pressure point to solve the problem. The result of the U.S. policy was that many of the passengers of the Golden Venture who had credible claims for asylum were denied meaningful access to counsel and detained, unnecessarily and at great taxpayer expense, some for nearly four years before their situations were finally resolved. The injustice of the prolonged detention of these men and women, who had suffered so much both in China and at the hands of smugglers during their months-long journey to the United States, galvanized a community-based grassroots movement across the country, until President Clinton found the situation intolerable and ordered the prisoners released.
In another high-profile smuggling incident, again involving Chinese immigrants, but this time off the west coast, U.S. policy again was seriously flawed. When ships carrying smuggled Chinese immigrants were located heading for California, they were prevented from reaching the United States. The ships were diverted to Mexico, where, without adequate screening for refugee status and without access to counsel, the immigrants were removed from the ship, has their heads spray-painted for identification, and were promptly repatriated to China. Payment was later made by the United States to the Mexican government to defray the costs of this operation.
Victims of persecution will flee whenever and however they can. That fact is self-evident. The exact contours of the right to flee are a product of the tension between that right and the prerogative of countries to regulate their borders. Both American tradition and law, as well as international law, require that those who flee persecution, however they accomplish that flight, must not be forcibly returned to a place where their lives or freedom would be threatened or where they would be in danger of being subjected to torture. But regardless of whether the reasons for flight are persecution or a desire for economic betterment, no human being deserves to suffer the shocking abuses committed by smugglers against their human prey.
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By the time many smuggled immigrants reach our country, they have been victimized twice: once by their governments and once by the smuggler who profits from their fear and misfortune. We urge the Subcommittee, as it considers how best to address this complex problem, to ensure that the United States does not participate in this cycle of abuse.
BIOGRAPHICAL INFORMATION FOR ELISA MASSIMINO
Elisa Massimino is the Director of the Washington office of the Lawyers Committee for Human Rights. She is a 1988 graduate of the University of Michigan Law School and holds a Master's degree in Philosophy from Johns Hopkins University. Prior to law school, Ms. Massimino taught philosophy at several colleges and universities in southeast Michigan. Her undergraduate degree is from Trinity University in San Antonio, Texas. Ms Masssimino directs the Lawyers Committee's national advocacy program, which includes a special focus on refugee protection. She has testified before Congress on a range of human rights issues, and frequently comments on proposed legislation affecting U.S. compliance with international standards of human rights protection.
DISCLOSURE STATEMENT UNDER HOUSE RULE XI
The Lawyers Committee has not received any federal grant, contract, or subcontract in the current or preceding two fiscal years.
Mr. SMITH. Thank you, Ms. Massimino.
Page 64 PREV PAGE TOP OF DOC And, Ms. Walsh.
STATEMENT OF SELENA WALSH, DIRECTOR OF POLICY AND COMMUNICATIONS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS
Ms. WALSH. Chairman Smith, Congressman Jackson Lee and members of the subcommittee. It is indeed a privilege to have been invited to testify before you today regarding the inequity in INS enforcement between southern border crossers and visa overstays in our country.
My name is Selena Walsh and I am Director of Policy and Communications for the League of United Latin American Citizens, LULAC. Founded in 1929, LULAC recently turned 70. We act as the Nation's oldest and largest civil rights organization for Hispanics. With several thousands of members and 600 councils nationwide, LULAC works to promote the educational attainment, economic condition, political representation and protection of civil rights for the Hispanic community.
As you may know, LULAC opposes any legislation threatening the rights of legal immigrants, including measures limiting illegal immigration. We stand against legislation that denies legal residents and naturalized citizens the same benefits due to native born citizens. We are against any efforts denied public education to the children of undocumented immigrants and against harsh regulations that toughen the requirements for citizenship and expand the stipulations that bar admissibility to immigrants.
Page 65 PREV PAGE TOP OF DOC We oppose the militarization of our borders and hold that the Immigration and Naturalization Service should concentrate its efforts on naturalization, citizenship promotion, and training of Border Patrol agents.
According to INS figures, an estimated 40 percent of illegal immigrants enter the United States illegallyexcuse me, legally. These now illegal immigrants entered with either a student, visitor or student business visa and failed to leave the country when their visa expired, ultimately shifting their status from legal to illegal.
I want to briefly discuss how the disparity between INS' focus on identifying potential illegal southern border crossers versus tracking visa overstays has contributed to the documented stereotype that all undocumented aliens are Hispanic.
The concern relating to visa overstays and the need to identify this growing undocumented population has been frequently discussed. According to the 1997 Justice Department report, the two overall chief concerns regarding visa overstays are, one, the jobs reserved for legal residents may be taken by illegal immigrants, and, two, the overstays account for a significant and annually growing undocumented population in the United States.
It seems important to mention while the number of immigrants living in the United States is significantly large, we are currently experiencing the lowest unemployment rate in years. Along the same lines, studies indicate that immigrants are more likely to be self-employed and start new businesses. It has been estimated that 18 percent of small businesses are started by immigrants and account for up to 80 percent of new jobs in the United States each year, once again reinforcing the positive contributions immigrants have historically lent and enriched our country.
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In 1996, Congress addressed the second concern by authorizing the INS to hire 300 investigators to help seek visa overstays. As of November 1998, these positions had yet to be filled in full. One possible reason for the exaggerated delay in hiring is the excuse of visa overstays who represent a more ethically diverse group are harder to identify as they are generally high skilled, educated and dispersed throughout the economy.
From this reasoning, one can conclude that the imbalance in the enforcement where visa overstays and Southern borders are concerned are in essence due to the fact that it is easier to target border crossers who are typically low skilled, service oriented laborers and, two, of Hispanic descent who in fact are more easily identifiable than the ethically diverse visa overstay population.
The disparity in treatment and monitorization among undocumented immigrants in essence declares the one targeted group to be nominally illegal. The danger in such a targeted approach to seeking out undocumented aliens should be, one, a serious concern as such uneven enforcement policy can be expected to even encourage the possibility of civil rights abuses rather than discharge such violations. In short, the longer such targeted approaches continue the stronger the belief amongst Border Patrol that it is acceptable to stop and detain anyone who looks illegal or who looks Hispanic.
Since passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which substantially increased resources and personnel for raids operations, there has been a significant outcry by labor civil rights and legal and community organizations. If such targeted approaches continue, it can only be expected that further litigation against the INS will continue to increase.
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It is our position that such targeted enforcement policy threatens both the rights of citizens and noncitizens, they encourage the violation of constitutional protections, lend to the undermining of rights and to the destabilization of families.
As the subcommittee will continue to review and approve legislation in attempt to provide a more effective and fair process to immigration, one encourages a spending approach which would lend to more evenly funded INS adjudication services with INS enforcement resources. In addition, it seems appropriate to take a closer look at the Border Patrol Academy training sessions to ensure that a colorblind enforcement is clearly a priority.
This concludes my discussion. I thank you for the attention.
[The prepared statement of Ms. Walsh follows:]
PREPARED STATEMENT OF SELENA WALSH, DIRECTOR OF POLICY AND COMMUNICATIONS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS
Chairman Smith, Congresswoman Jackson Lee and members of the Subcommittee, it is indeed a privilege to have been invited to testify before you today regarding the inequity in INS enforcement between Southern 'border crossers' and visa overstays in our country.
My name is Selena Walsh, and I am Director of Policy and Communications for the League of United Latin American Citizens (LULAC). Founded in 1929, LULAC is the nations oldest and largest civil rights organization for Hispanics. With several thousands of members and over 600 councils nationwide, LULAC works to promote the educational attainment, economic condition, political representation, and protection of civil rights for the Hispanic community.
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As you may know, LULAC opposes any legislation threatening the rights of legal immigrants, including measures limiting legal immigration. We stand against legislation that denies legal residents and naturalized citizens the same benefits due to native-born citizens. We are against any efforts to deny public education to the children of undocumented immigrants, and against harsh regulations that toughen the requirements for citizenship and expand the stipulations that bar admissibility to immigrants. We oppose the militarization of our borders and hold that the Immigration and Naturalization Service should concentrate its efforts on naturalization, citizenship promotion, and the training of Boarder Patrol agents.
According to INS figures, an estimated forty percent of illegal immigrants enter the US legally. These now illegal immigrants entered with either a student, visitor, or business visa and failed to leave the country when their visa expired, ultimately shifting their status from legal to illegal. I want to briefly discuss how the disparity between INS' focus on identifying potential illegal Southern 'border crossers' versus tracking visa overstays has contributed to the dangerous stereotype that all undocumented aliens are Hispanic.
The concern relating to visa overstays and the need to identify this growing undocumented population has been frequently discussed. According to the 1997 Justice Department report the two overall chief concerns regarding visa overstays are: 1) that jobs reserved for legal residents may be taken by illegal immigrants and 2) that overstays account for a significant and annually growing undocumented population in the US.
It seems important to mention that while the number of immigrants living in the US is large, we are currently experiencing the lowest unemployment rate in years. Along the same lines, studies indicate that immigrants are more likely to be self-employed and start new businesses. It has been estimated that eighteen percent of small businesses are started by immigrants and account for up to eighty percent of new jobs available in the US each year.(see footnote 1) Once again reinforcing the positive contributions immigrants have historically lent and enriched our country.
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In 1996, Congress addressed the second concern by authorizing the INS to hire three-hundred investigators to help seek out visa overstays. As of November 1998 these positions had yet to be filled in full. One possible reason for the exaggerated delay in hiring is the excuse that visa overstays who represent a more ethnically diverse group are harder to identify as they are generally higher skilled, educated, and dispersed throughout the economy. From this reasoning one can conclude that the imbalance in enforcement where visa overstay and Southern borders are concerned are in essence due to the fact that it is easier to target 'border crossers' who are typically low skilled, service oriented laborers(see footnote 2) of Hispanic descent more easily identifiable than the ethnically diverse visa overstay population.
The disparity in treatment and monitorization among undocumented immigrants in essence declares the one targeted group to be nominally illegal. The danger in such a targeted approach to seeking out undocumented aliens should be a serious concern as such uneven enforcement policy can be expected to only encourage the possibility of civil rights abuses rather than discouage such violations. In short, the longer such targeted approaches continue the stronger the belief amongst Boarder Patrol that it is acceptable to stop and detain anyone who 'looks' illegal, or who 'looks Hispanic.'
Since passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which substantially increased resources and personnel for raids operations there has been a significant outcry by labor, civil rights, legal and community organizations. If such targeted approaches continue it can only be expected that further litigation aganist the INS will continue to increase. It is our position that such targeted enforcment policy threatens both the rights of citizens and noncitizens, they encourage the violation of constitutional protections, lend to the undermining of workers' rights and to the destabilization of families.
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As the Subcommittee will continue to review and approve legislation in attempt to provide a more effective and fair process to immigration, one encourages a spending approach which would lend to more evenly funding INS adjudication services with INS enforcement resources. In addition, it seems appropriate to take a closer look at the Boarder Patrol Academy training sessions to ensure that colorblind enforcement is clearly a priority.
This concludes my discussion. I thank you for your attention.
Mr. SMITH. Thank you, Ms. Walsh, and thank you all for your testimony today. Let me say I suspect that we will have multiple rounds of questions since there are so many witnesses and there are so many answers we would like to have you all provide.
But let me begin my questions with Ms. Bianculli, if I may. Ms. Bianculli, let me assure you that despite your disclaimer in your opening statement, you are in fact an expert, and we quite frankly need more activists/experts like you around the country. And if we had activists/experts like you, I suspect we would pass more and better legislation and be able to do something about the problem that you so accurately describe.
Let me read a couple of sentences from your full opening statement and say, first of all, I think they are excellent points, but I just want to reemphasize them and ask a couple of questions based upon your points. You say as citizens we expect the government to enforce the laws, including the immigration laws. Let me make this point. After the initial influx of illegal aliens learns that virtually no immigration enforcement is likely, no arrests, no deportations, they will phone home or write home and let their friends and family know the situation. This will result in a second influx of illegal immigrants. I think that is an accurate point that also needs to be reemphasized.
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You said that the INS told you they didn't have the manpower or money to arrest and detain illegals. That makes me want to ask you a very leading question, which is, what do you think of the administration's policy of not providing any more funds or any new funds for a single new Border Patrol agent?
Ms. BIANCULLI. I have two thoughts on that. My first thought is with the problems that we are experiencing in our communities all over the country, if the administration refuses to provide sufficient funds for border control and enforcement of immigration laws, then I believe that they are in violation of their oath of office to us. This is our country. This is our home, and they are responsible to us to provide us with safe and civil streets, and we have a right to our quality of life issues.
My second thought on that is, they are not doing what they havethey have resources now, they have laws now. And they are not doing, making the best use of their resources and the laws now. And as long as they don't do that, we will continue to be put in a circle where citizens will have to organize, citizens will have to become the lawyers, citizens will have to research the laws and be constantly faced with the problems that come from having nonresponsive government.
And in our community, because of the landscaping and contracting facilities that we have, and because there are local merchants whoand we know this to be the case, because we were involved with it on one to one through personal testimonybut there are merchants that are actually part of the sponsoring of bringing the men into our community. We do know they do call home, and they do solicit for more.
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We know that the men who are working legally for the big supply houses, contracting supply houses, see hundreds of contractors come to them, call home and get their brothers and their uncles to come across. There is a network in our community of Farmingville where the men pay several thousand dollars. We have prices like $3,000. After hearing these prices, I am sure that we were wrong in what they told us that they pay. One of the merchants puts up the money and sponsors some of the men, other men pay, come across the horrendous situations that they are faced with.
One man never made it acrosshe made it across the border but never made it to Farmingville, and through the local Catholic church, the man, his relative here, tried to find him, and the local Catholic church went to search for him. So there is a network, and there is a phone chain and there isas soon as they know that there may be a hiring hall put up, as soon as they knowand INS has publicly and in our public meetings said that there is very little they can do, and they will not do anything except work site investigations, and will not do anything except go after felonious criminals, this gives them license, and our merchants and our contractors, to continue to violate the law and affect our quality of life.
Mr. SMITH. Thank you, Ms. Bianculli. I like your first point about we took an oath of office to enforce the laws of the land, and it is most interesting to me that the administration chose not to provide funds in their budget for any additional Border Patrol agents, much less the thousand new Border Patrol agents that are called for in the 1996 law that they themselves supported and that passed overwhelmingly in Congress. So I don't think there is any good explanation for that. I think you made a good explanation of oath of office.
Page 73 PREV PAGE TOP OF DOC Mr. Stoddard, you pointed out, as I think we need to do more often, some of the victims of illegal immigration. You talked about individuals whose homes have been ransacked, property stolen or destroyed; ranchers who had their wells damaged, vehicles stolen, fences torn down and so forth.
I am going to go over my time briefly just to ask a question. I had a call from a childhood friend 2 days ago, Tuesday of this week, whom I haven't heard from in years. He called because his family divides their time between San Antonio and a ranch in west Texas. And he said that the problem is so bad that his wife and children can no longer spend any time at the ranch because they are threatened by illegal aliens on a regular basis. It has gotten so bad, in fact, that he could no longer lease the property, because no one wants to pay to lease a property where there is such a threat of crime to anyone who happens to be on the property.
Now I say to myself is this United States of America where we are feeling threatened in our homes, if we live in the rural areas of parts of the country where we can't use our property for income purposes because of the threat of illegal immigration? Something is terribly wrong with that picture. So I appreciate your pointing that out, just as my friend did earlier to date.
If you can give me a quick response, since my 5-minute time is up, and we will come back for additional questions in a minute. What do you think of the President's policy of requesting no new Border Patrol agents?
Mr. STODDARD. I think it is foolish. The argument that inexperienced officers is a major factor as an excuse not to hire, it doesn't hold any water. You can take inexperienced officers and put them to manning binoculars or a night scope or transporting aliens, or guarding aliens or entering data into a logbook. There are numerous jobs that an inexperienced officer can perform in order to free more experienced ones to get out and do the actual physical arrests.
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Mr. SMITH. Mr. Stoddard, I will come back for additional questions in just a moment.
Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and might I also join in saluting CSpan for their 20th anniversary and applauding them for helping us disseminate information to the American people on this very vital issue.
Let me say to Ms. Bianculli that I certainly am empathic to her as a wife and mother and as a teacher and a community person. I am curious as to the length of time this problem has occurred, it was my understanding between 5 and 10 yearsor how long have you had this problem in your community?
Ms. BIANCULLI. Actually, it became a problem probably a little more than a year ago, within the past 3 years. It started to escalate, and really grow the past 3 years.
Ms. JACKSON LEE. Had it been going on 5, 6, 7, 8, 9, 10 years or
Ms. BIANCULLI. There had been a policy somewhere in our community on the Main Street with the merchant that I spoke of previously. Over the past, I am not sure exactly how many years, but near theI have been in the community for more than 20 years, so it wasn't right away. So maybe within the past 10 or 15 years where they brought people over from their home country to work. Probably on a daily basis we would see 25 men.
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And we always assumed that they were there legally doing whatthey were working for the people, they became a part of our community. Now we have well over a thousand men on our streets.
Ms. JACKSON LEE. What is the home country that they come from?
Ms. BIANCULLI. Portugal.
Ms. JACKSON LEE. So if we look at it accelerating but we look at the fact you have been there about 20 years, 15 years
Ms. BIANCULLI. Yes.
Ms. JACKSON LEE [continuing]. Then we can certainly say that this problem is a problem that the country has had under Republican and now Democratic leadership, this has been ongoing prior to 1990, 1989, and so we see that we have a problem to address that is not directed to one administration or another, that we have got to work on this problem because it is a problem.
Ms. BIANCULLI. I am sorry
Ms. JACKSON LEE. I am just making a statement. But I assume that you realize that this has been an ongoing problem.
Page 76 PREV PAGE TOP OF DOC One of the things that I was curious about, are you sure or have you taken an inventory that all of the individuals that you see do not have proper work visas. Have you all been able to detect that on a local basis?
Ms. BIANCULLI. We do know. And based on community meetings that we have had, my organization, as well as our civics groups, as well as me personally being on the street with the men, speaking with them, and as well as me being at other meetings in the community and the local churches, we have come to know from their admission and our records that more than two-thirds of the men are undocumented.
There are approximately one-third of these men who do have documentation. I am not able to see whether they are fraudulent documents or not. And I find that my major concern is the total numbers of people and how it is affecting our quality of life. So those who are legal need to be off the street as well.
Ms. JACKSON LEE. Let me say to you that that is certainly an assessment that will give us data to work through this problem. Might I emphasize a fact that there are those that are legally documented, and I would offer to disagree with your local community. Let me proudly say that the city of Houston has dealt with the day laborer problem, a concern of neighborhoods with day laborer sites away from neighborhoods, clean, well attended and the appropriate procedures are followed for those who would appropriately hire legal individuals.
And so even though the Federal Government has enormous responsibility, I think your local community, might I say, and I have come from local government, has dumped on you. But I think that we can work with you, and I think that the difficulty we have is that realizing that so many immigrants started coming for work, certainly we want to curtail and end illegal immigration.
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But I can think of the Irish and the Italian, and there were organizations and groups who didn't want them here as well. So I hope that we can keep on the high road of fixing the problem that you have so eloquently articulated but we keep this at the level of not pointing out certain groups over another.
Professor Kwong, you have given the most brilliant testimony. Last week I commented and asked the question about the responsibility of businesses, and you have highlighted it just as clearly as it can be. Let me get you just to restate it, if you would, and if I can, Mr. Chairman, as you did, finish my question and get Professor Kwong to be able to answer the question.
And that is you have asked the question or you raised in your testimony what are we doing about the different businesses; are businesses substituting American workers, legal immigrants for illegal immigrants, because of the sheer costs, the cheaper price. Are we going after the wrong victim? Should we not expand the S-visaand for people who may not be aware those are used for undocumented witnesses who provide testimony or other information that leads to criminal prosecutionso that we can get more knowledge about alien smuggling?
Help me with a legislative initiative that would address the question of businesses who substitute illegal immigrants for legal and legal immigrants and citizens?
Mr. KWONG. The context of what I am basically trying to say is that this whole illegal immigration issue is very, very complicated. There are two sides. It takes two sides to tango. On one side you are dealing with the law enforcement. On the other side, employers really want them and want to exploit them.
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I mean, there are statisticsstudy after study done, employers simply want to single immigrants out. It is notin the past people say, well, you know, they don't employ Americans becauseAmericans don't want to work in the kind of jobs they have, but that is not the case. The case is that employers want the illegal immigrants; they don't want the American born.
So if that is the case, then I think this contributes to the whole complexity of the illegal immigration issue. The employers are part of the problem. And it seems to me that if we really want to deal with the illegal immigration issue, we need to enforce labor standards that will help to take away the incentives from the employers.
Now, my argument is basically that this is a continuum. By the fact that the employers hire them, the illegals can pay the smugglers, the smugglers make money and then recruit more illegals to come here. So I think that the smugglers as well as the employers got to be taken into account.
And I think in this situation, if individuals could come forward and testify that they are being abused, exploited by employers, they should also have the right to have adjustment in their status.
Ms. JACKSON LEE. Mr. Chairman, thank you for your indulgence. Thank you very much, Professor.
Mr. SMITH. The gentleman from California, Mr. Gallegly, is recognized.
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Mr. GALLEGLY. Thank you very much, Mr. Chairman. And thanks for all of you for being here today. This has been a very interesting hearing.
First of all, I would like to ask, Professor Kwong, are you aware of a Washington Post article that appeared a couple days ago by Bill Brannigan explaining the shift of the Clinton administration away from job site enforcement? Are you aware of that, the administration's current policy getting away from raids?
Mr. KWONG. I am somewhat familiar with it. I am not sure that they are exactly getting away from job sites. My understanding is that the memorandum between the INS and the Labor Department is being reconfigured. Now, the INS is actually going directly to the employers to get them to help. So I am not sure it is a shift.
Mr. GALLEGLY. But the thing that they are doing is they are not doing raids any longer or they are cutting it down to an absolute minimum. The story says that the enforcement of undocumenteds in the job place tend to alienate lawyers, ethnic lobbies, civil rights groups and increasingly unions trying to organize the newcomers. Would you say that that is a fair assessment?
Mr. KWONG. Well, I am not sure. I think for the union, it is ambiguous. I think that the unions, on the one hand, would like to maintain unions' power by the exclusiveness of the labor market. On the other hand, at the time of the declining membership, they would want to recoup. So I am not sure.
Page 80 PREV PAGE TOP OF DOC Mr. GALLEGLY. It seems interesting that unions have not taken a real strong stand in opposition to low cost immigrant labor, though. The silence is almost deafening.
Mr. KWONG. Well, if I may explain. Part of it has to do with the fact that some of the unions are only concerned in the number of fee-paying membership. If the people are working and they are union members, the union is not interested in enforcing the laws.
Mr. GALLEGLY. Thank you very much, Professor Kwong.
Mr. Stein, I normally don't disagree with you, but I just have to interject one comment. When you said that relating to job site enforcement and other things that you think that it is an indication of bureaucratic incompetence, with all due respect I used to think that, too. I would say that I think it is an exact case of bureaucratic competence.
So, Ms. Walsh, you made a comment about denyingone of the advocacies of your organization is challenging the denial of benefits to illegal immigrant children. Can you give me any examples of any advocacy on the part of any organization or any legislation that is targeted at denying benefits to the children of illegal immigrants? Do you know of any incidences of that?
Ms. WALSH. I am sorry, if I had said illegal, I misspoke. We were in support of benefits to legal immigrants.
Mr. GALLEGLY. You mentioned the children of illegal immigrants.
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Ms. WALSH. Perhaps regarding education? We encourage undocumented children to be able to attend public schools.
Mr. GALLEGLY. So you are notthen I misunderstood. It wasn't the children of undocumented immigrants, it was all children, period?
Ms. WALSH. We wereI spoke specifically to undocumented children attending public schools.
Mr. GALLEGLY. That is fine, I respect that.
Ms. WALSH. Sorry if I misspoke.
Mr. GALLEGLY. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Gallegly.
Mr. Stoddard, let me return to you if I might. You are an expert, too, you are a former Border Patrol agent. Just a real quick question on numbers. And I have always thought the numbers that we have heard estimated are too low, which is 300,000 new illegal aliens in the country every year. We know the rate for these visa overstayers is about 40 percent. That leaves about 180,000 that are coming across our borders illegally.
And we have individuals coming across from our southern border and northern border and then, of course, we have smugglers coming in on the East Coast and West Coast alike.
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If we just say that that 180,000 illegal aliens coming into the country across our borders every year came across just the southern border, that means that we would be only having one illegal alien coming across every 4 miles of border a day. One person for 4 miles of border doesn't strike me as being an accurate figure, but you are the expert.
Do you think that there are more folks coming into the country illegally than we are told or not?
Mr. STODDARD. Mr. Chairman, I can show you trails that are 4 to 6 feet wide and 4 to 6 inches deep that are beat out by thousands of people walking north across our southern border. I think those figures are way, way, way too low, just by the mere fact that NACO Station, this month, is going to apprehend roughly 8,000 aliens. It is a small station.
Going by the formula, INS has a formula. For every one that is apprehended five get away, will mean that this month there will be 40,000 illegal aliens escaping apprehension, and that is in an area that counts roughly just 20 miles of border. That means 40,000 will escape apprehension in 1 month.
Mr. SMITH. That is what I expected, that the real figure is probably many times what we are told, at least on the basis of your firsthand experience on the front lines. Thank you, Mr. Stoddard.
Professor Kwong, I wanted to ask you, why do you think it is that the smugglers and the sweatshops in New York City are allowed to continue to operate, and maybe a secondary question, why isn't the Department of Labor doing more to enforce labor laws on minimum wage and on working conditions?
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Mr. KWONG. Well, the problem with the law enforcement dealing with an immigrant community, in particular the Chinese community, is the question of information access. You have to have people coming forward to say I am being underpaid. Now, with this law structured as it is right now, if I am an illegal and I am being abused, all right, if I come forward, it is not in my interest.
Mr. SMITH. You think the problem is that the INS and the Department of Labor simply don't know about these violations?
Mr. KWONG. They know very few. They do some of the raids, but, in other words, detailed information they don't know. And I think that the owners are very, very well able to hide these people underground. In other words, the owners would simply say, look, you know
Mr. SMITH. Should the government be investigating more, should they just wait for people to come forward or should they actually go into Chinatown and try to stop the sweatshops and stop the violations?
Mr. KWONG. That would certainly help, but I think still the most effective way is encouraging people to come forward. This to me is the most sensible way of law enforcement.
Mr. SMITH. Maybe your plea will be heard today, we hope those individuals will listen. Thank you, Professor Kwong.
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Mr. Stein, you accurately pointed to the great problem we have with visa overstayers. What are some of the solutions you see to the problem of visa overstayers? We have this group of individuals that most people are not aware of: almost half of our illegal immigration problem consists of individuals who actually came into the country legally, typically on tourists' visas, and then overstayed, never went home. What can we do about that?
Mr. STEIN. The first thing you have to recognize is that the absence of interior enforcement is used by the opposers of strong border enforcement as prima facie evidence of bias. And if for no other reason, we need to be addressing interior enforcement against overstayers, because it gives ammunition to those who oppose border enforcement to argue we give a disproportionate priority of our attention to the border.
This whole question of documents and document reform is really at the root of this, and we have had difficulties getting bi-partisan consensus on the need to link birth records, driver's licenses, Federal naturalization and alien documents to automated machine readable registers maybe with driver's licenses, which would enable a point of servicesemployers, service providers and certainly government officialsto verify whether I am a U.S. citizen or whether I am an alien; if so, am I in a status that permits me to work.
I can't prove I am a U.S. citizen sitting here. I would be proud to be able to prove it easily with a machine readable feature on my driver's license that verified that I am who I say I am and that I am a U.S. citizen.
Page 85 PREV PAGE TOP OF DOC Mr. SMITH. Thirteen states today I think have tamper proof driver's licenses, including California. Thank you, Mr. Stein.
Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and I look forward to the second panel, I believe will be administration representatives, because I want to go on the record for encouraging. And I would ask you, Mr. Chairman, to join with me as we work through this process, that there be some revisiting of the administration's budget on some of the resource needs of the INS. I think we can do that in a manner that would collectively speak in one voice about ways of being helpful.
Mr. Stoddard, there is no one that can counter your government service, and do I thank you for that, and as I have committed publicly to working on resources and to ask the INS on their position on trying to get more resources for some of these issues. I do note in your testimony that you make mention only of Mexicans and Central and South Americans as causing the illegal immigration problem. You do not comment on Canadians or Europeans.
And I think you made a point in your testimony to acknowledge that this is not an issue of delineating one group or not. But unfortunately, tragically, this is what it has become. Would you, one, provide me with a response to that kind of labeling that really will divide us from answering your concern? And then what would be the chief initiative that you would want the administration to engage in that would help us with the question of illegal immigration with your experience as a member of the border service, Border Patrol Service, and the alien smuggling question?
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Mr. STODDARD. Ma'am, in my statement I made mention of illegal aliens, I meant that as a generic term. We have illegal aliens from Canada, France, and virtually all countries of the world. When I made a direct reference from to Mexican aliens, it was because of my experience and by virtue of where I live. The illegal aliens that we encounter there are mostly Mexican and Central American. However, when I worked on the northern border, we encountered Italian, French and also Canadian illegal aliens.
And you are absolutely right. There is a big problem with Canadian illegal aliens, too. For one thing, you can go into Florida, and just aboutI can't say just about all, but a large number of Canadian drywallers come into Florida during the winter and drywall when they can't do that kind of labor in Canada. My intent was not to slight any
Ms. JACKSON LEE. I think it is important to clarify that. I appreciate that. Can you justbecause my time is shortone initiative that you think would be very important that we look at with the administration to help in this problem of illegal immigration and alien smuggling?
Mr. STODDARD. Employer sanctions, and apprehension of domiciled aliens. Word would soon get out to other countries, that you just can't get into the United States and take up residence and stay, and that there is some risk of being apprehended.
Ms. JACKSON LEE. Are there some risks for the employers as well?
Page 87 PREV PAGE TOP OF DOC Mr. STODDARD. As well, yes.
Ms. JACKSON LEE. Which of course both of us are now treading on dangerous ground. But I think if we look at the question in a global sense we have got to look at all of the ills and ailments of this problem.
Let me go to Ms. Walsh and maybe Ms. Massimino, who will join in, because I think the gentleman, Mr. Gallegly, reported on a Washington Post article. And I think the INS was attempting to say the resources was eliminated and whether or not work force raids were particularly helpful. I do think that it starts from the top, as Professor Kwong said, to set the tone from the employer so that we wouldn't even put anyone in the predicament of being raided on the work, on the job place, particularly if there were legal documents. It is a frightening experience to have to engage in.
Help me out on the question of the treatment of documented aliens who get caught up in this labeling that everyone who has a different spelling name, a Hispanic surname, different coloration is wrapped up into that and what that does to communities.
Ms. WALSH. Oftentimes, they are detailed as long as any suspected or alleged undocumented individuals until Border Patrol or appropriate officials can come by and accurately determine their citizenship status. That means that they are detained for 24, 48 hours or until Border Patrol has time to get over there, then they are there as well.
Ms. JACKSON LEE. Ms. Massimino, do you want to contribute to that, the way children are treated as well?
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Ms. MASSIMINO. Yes, briefly. My organization has a mandate that is limited to the protection of human rights, which is broad in a sense but also narrow in a sense that we don't take a position on a number of immigration issues, such as numbers of entry visas, setting quotas, setting limits. But a fundamental principle of international human rights law to which the United States has committed itself, and also which is a fundamental principle of our Nation, is the principle of nondiscrimination, and what we have seen and what we have heard reported from many of these workplace raids is exactly what Ms. Walsh just described, that there are people who are targeted because of their looks or their last name and not necessarily because of their failure to produce certain documents, and that is extremely troubling to us.
Ms. JACKSON LEE. So if we try to fix this problem, we should be cautious about how we fix it, in that we werein keeping with laws here in the United States on equal treatment and fairness?
Ms. MASSIMINO. Exactly.
Ms. JACKSON LEE. Thank you. Thank you, Mr. Chairman.
Mr. SMITH. Ms. Massimino and Ms. Walsh, let me ask you both the same question. I assume that you feel we should reduce illegal immigration?
Ms. WALSH. We areas an organization we are strongly in support of legal immigration.
Page 89 PREV PAGE TOP OF DOC Mr. SMITH. Okay.
Ms. MASSIMINO. As I said, we don't take a position on numbers and reducing illegal immigration or legal immigration. But certainly we support as part of fundamental human rights the principle that nations have the right to control their borders.
Mr. SMITH. Then give me solutions. How would you all propose to stop illegal immigration?
Ms. MASSIMINO. Well, as I said, my organization doesn't have a position on
Mr. SMITH. You said we should enforce the laws. I am just asking how you feel that we should enforce those laws.
Ms. MASSIMINO. Our critique of the law is limited fairly narrowly to implementing principles of nondiscrimination and the protection of refugees, so that proposals that would not violate those principles would be something we would be in favor of.
Mr. SMITH. Ms. Walsh, what about you, how would you reduce or stop illegal immigration?
Ms. WALSH. LULAC is a supporter of immigration, legal immigration, we are not saying that individuals, you knowthe increase in funding for Border Patrol resources is necessarily bad, we are saying we are looking for equity between adjudication services and a more holistic approach to ensuring a positive equitable service to immigration.
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Mr. SMITH. I appreciate that. And I understood you to say you are not necessarily opposed to an increase in Border Patrol agents.
Ms. WALSH. We think that it is pretty high considering the lack of services funding. In other words, if we were to see a significantly large increase in adjudication services, in terms of more on the service side helping people process their applications and reducing the backlog and in dealing with that whole mess, we feel there maybe a more effective approach, a more accountable approach toward dealing with
Mr. SMITH. I agree we need to expedite the legal side and make individuals citizens more quickly. But on illegal immigration, which is the subject of the hearing today, do you favor more Border Patrol agents if they act in a responsible way and if that would reduce illegal immigration?
Ms. WALSH. No, we would favor the stagnant
Mr. SMITH. You do not favor more Border Patrol agents? I thought a while ago you said you didn't object to that.
Ms. WALSH. We didn't object to it. We wouldn't want to see any more increases without a significant increase in funding for it.
Mr. SMITH. It is a funding problem; you don't object to the idea itself of more Border Patrol agents?
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Ms. WALSH. We encourage Border Patrol to take a more humanistic and a more colorblind approach towards
Mr. SMITH. I understand that. My question was about the numbers. Assuming that they acted in a colorblind fashion and that there is no discrimination, you would support more Border Patrol agents to reduce illegal immigration?
Ms. WALSH. Our current position on that is that we would not look to see an increase in Border Patrol without equity in the services.
Mr. SMITH. How do you propose to reduce illegal immigration if you are not going to increase the number of Border Patrol agents?
Ms. WALSH. We don't believe that supportingsolving the problem of illegal immigration is solved solely on increasing Border Patrol agents.
Mr. SMITH. Okay. So how would you reduce illegal immigration if you didn't have more Border Patrol agents?
Ms. WALSH. In short what we are saying is that there is a time and a place we believe that there would be sufficient funding or reasons for an increase in Border Patrol agents, however, we are afraid and concerned about such a disproportionality within the agency's funding.
Page 92 PREV PAGE TOP OF DOC Mr. SMITH. I understand that. So you are for reducing illegal immigration, but you don't have any proposals for how to do it and you don't support an increase in Border Patrol agents?
Ms. WALSH. We have been with you on this, and we agree that, you know, like there has been several like analogies in terms of how do you solve illegal immigration, if you have a boat and a hole in it, do you plug it or bail out water. We are saying, you know, you got to do a little bit of both, but do them in a balanced fashion.
Mr. SMITH. Within a balance, you would support more Border Patrol agents?
Ms. WALSH. If we saw balance, I would be more than happy
Mr. SMITH. If there is additional funding across the board you would support
Ms. WALSH. Across the board.
Mr. SMITH [continuing]. You would support more Border Patrol?
Ms. WALSH. If there is equitable funding, yes, we would.
Mr. SMITH. Thank you, Ms. Walsh. And I don't have any other questions.
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Ms. Jackson Lee.
Ms. JACKSON LEE. I do. I have got to throw Ms. Walsh a life raft or a fishing net. Ms. Walsh, help me understand, because I have offered to say and I think Mr. Stoddard has given me a pause and a consideration. I do think inexperienced Border Patrol officers, even for their own safety and the leadership that they provide, is doing detriment to the service. And so I am concerned. I do think maybe those untrainednot untrained, but inexperienced individuals might be utilized in different capacities.
But let us try to focus at least very quickly on the immigration policy. People come or escape their nations, as I understand it, as I still read the horrible stories for the devastation of Hurricane Mitch, for the persecution and prosecution of their rights, for ultimate poverty or extreme povertya poverty that we wouldn't even identify because we have some terrible tragedies in our country.
Would that motivation cease by an armed camp at the border, meaning thatcertainly there is a deterrent, but is that going to stop those who are seeking refuge for these devastating issues and their country and can we also work with funds besides a Border Patrol to dealing with some of those crucial systemic issues? Did I hear you say that?
Ms. WALSH. Yes, you did. Your answer to the first question is no, that putting Border Patrol on the border would not reduce those humanitarian needs. And, yes, I do believe that we can work together in a more equitable way.
Page 94 PREV PAGE TOP OF DOC Ms. JACKSON LEE. You think people would still come because they are leaving pain and poverty; is that what you are trying to say?
Ms. WALSH. Absolutely.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
Mr. SMITH. I don't have any other questions. And I thank all the witnesses who are here today for their testimonyfor their important contributions on an important subjectand I appreciate everybody being here. Thank you.
While the next panel is coming forward, let me say that we are expecting a series of votes in 40 minutes, and so with the ranking member's concurrence, we are going to combine the second and the third panel. So if everybody who is a member of those two panels could come forward, we will have the name tags for you as you make your way forward, and I will introduce you as you come forward as well.
Mr. Michael R. Bromwich, Inspector General, U.S. Department of Justice; Mr. Michael D. Cronin, Associate Commissioner for Programs, U.S. Immigration and Naturalization Service; Ms. Donna J. Hamilton, Principal Deputy Assistant Secretary for Consular Affairs, U.S. Department of State; Mr. Louis Nardi, Director of Investigations for Field Operations, U.S. Immigration and Naturalization Service; and Ms. Amy Dale, Administrator of Detention Services, Federal Bureau of Prisons.
Do we have Mr. William Brownfield present, who is from the State Department?
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Could I ask those with conversations to step out in the hall? We would like to begin our next panel as quickly as possible.
On the way to introducing our witnesses here, let me formally thank our government witnesses for their patience. As I mentioned earlier, traditionally government witnesses do go first, and my guess is the exception will be rare, but today was an unusual day, with our citizen witnesses first.
It is my understanding that the State Department did not provide one of the witnesses whom we requested because the government panel did not get to go first. And let me address that, because that troubles me slightly. First of all, to reassure everyone else, we did check with our parliamentarian and determined that there is, in fact, no House protocol that demands that government witnesses testify first.
The protocol is for the chairman to decide which witnesses testify first, and it strikes me as being slightly petulant, perhaps even a little childish for the Consular Bureau of the State Department not to provide a witness simply because they couldn't testify first. I don't need to remind all of us here today that our government is by the people, of the people and for the people; not of, by and for the State Department.
So I think it is important if every now and then we make an exception and hear from the citizen witnesses first. But as I say, that makes me appreciate all the more the presence of the Department of Justice, the Immigration and Naturalization Service, and the Bureau of Prisons for providingand the Consular Bureau of the State Department for providing the witnesses who are here now.
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Let me introduce everyone who is sitting at the table. Mr. Michael R. Bromwich, Inspector General, U.S. Department of Justice; Mr. Michael D. Cronin, Associate Commissioner for Programs, U.S. Immigration and Naturalization Service; Ms. Donna J. Hamilton, Principal Deputy Assistant Secretary for Consular Affairs, U.S. Department of State; Mr. Louis Nardi, Director of Investigation for Field Operations, U.S. Immigration and Naturalization Service; and Ms. Amy Dale, Administrator of Detention Services, Federal Bureau of
Again, thank you all for being present.
Mr. Bromwich, we can start with you.
STATEMENT OF MICHAEL R. BROMWICH, INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. BROMWICH. Thank you very much, Mr. Chairman.
Mr. Chairman, Mr. Pease and members of the subcommittee, I appreciate the opportunity to appear before this subcommittee to discuss the work of the Office of the Inspector General with respect to nonimmigrant overstays. In a report issued in September 1997, we examined INS's monitoring of nonimmigrant overstays and assessed the Nonimmigrant Information System, or NIIS, INS's primary data collection system for nonimmigrant overstay information. What we found was disturbing. I would like to ask that my detailed written statement be made a part of the record.
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Mr. SMITH. Without objection. Mr. Bromwich, your complete statement, as well as the complete statement of all other witnesses, will be made a part of the record.
Mr. BROMWICH. Thank you very much, Mr. Chairman.
Our detailed written statement reviews each of the findings contained in our report. I would like to spend my few moments this afternoon discussing the status of INS's response to our recommendations.
First, a bit of background. INS currently has no automated method of identifying the number of aliens who have entered this country legally but failed to depart. INS estimates the overall numbers of overstays at more than 2 million, or approximately 41 percent, of the estimated 5 million illegal aliens in this country.
In addition, at the time of our review, the illegal alien population in this country was estimated by INS to be growing by approximately 275,000 each year, and 125,000 were nonimmigrant overstays. I note that INS has more recently estimated that these numbers may have dropped a bit.
INS cannot identify individuals who have overstayed their visas nor can it adequately describe the characteristics of the overstay population residing in the United States, such as countries of origin, occupations and work sites where overstays are employed. This has significantly hindered INS's efforts to develop an overstay enforcement plan. It also hampers this Congress' ability to make informed immigration policy.
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Two factors contribute to these shortcomings. First, serious inadequacies in NIIS, INS's principal data collection system for information on individual overstays; and second, a failure to tap potentially rich data developed by INS benefits and enforcement operations. I will address each of these issues briefly in turn.
The INS statistics division began seriously questioning the quality of NIIS data in fiscal year 1993 when overstay rates for certain classes of visitors such as visa waiver entrants rose significantly compared to the preceding year. This finding, coupled with unusual and unexplained fluctuations in overstay rates by class, month of admission and country of admission led INS to conclude that NIIS data after fiscal year 1992 was unreliable for estimating overstay rates. After our report was issued, INS formed a team to develop a plan to revise, reload, and analyze NIIS data for fiscal years 1995 through 1997.
In May 1998 INS informed us that their reexamination of the data continued to raise significant concerns about its validity. INS didn't specify what was wrong with the data. We have not received formal notification of their findings, although this is an outstanding recommendation for which we expect to receive a report of corrective action. However, informal contacts with INS staff suggest that the data continues to be unreliable and therefore unusable for accurately estimating overstay rates.
In response to our recommendation that INS examine other sources of potentially valuable overstay data, INS developed a plan to examine data available in its enforcement and benefit systems. INS agreed that such information was potentially available from, first, records of apprehension; second, records of persons removed; and third, from records of adjustment to legal permanent resident status. While INS's timetable envisioned completion of this data analysis by October, 1998, we have not received any documentation from INS indicating the status of this effort. Informal contacts with INS staff, however, indicate that only the first of six proposed steps has been completed. We are unaware of any new timetable for completion.
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INS estimates that nonimmigrant overstays constitute more than 2 million, or 41 percent of the total illegal alien population currently in the United States. However, of the 90,000 illegal aliens apprehended in the interior of this country by INS's enforcement programs in fiscal year 1996, only 10,000 were nonimmigrant overstays.
INS was hopeful that reliable data on nonimmigrant overstays would be available to help develop an interior enforcement strategy. This clearly has not been the case with respect to NIIS and other INS efforts to obtain more current overstay data. Nevertheless, INS recently issued a new interior enforcement strategy, apparently without the benefit of more comprehensive or reliable data.
In preparing for this hearing, we received a copy of INS's new interior enforcement strategy which was referred to in the earlier panel, a document I believe the subcommittee has also received. As far as I can tell, this strategy would represent a sea change in how INS evaluates the success of its interior enforcement program by deemphasizing the number of illegal aliens deported from the United States.
One aspect of the strategy apparently relies on the implementation of a new Automated Departure Information System, ADIS, a system designed to more accurately capture I94 arrival and departure information. While the OIG has not examined this new data collection system, my understanding is that not all airlines have signed on to participate in ADIS, and the ones that have done so are designating only selected flights at specified airports.
Before I conclude my remarks, I want to mention two other OIG reviews that are relevant to the nonimmigrant overstay issue. The first is our examination of the potential for fraud in the Visa Waiver Pilot Program, a program that waives visa requirements for visitors from 26 countries who travel to the United States for business or pleasure. In fiscal year 1997, 14.5 million visitors entered this country under the VWPP. Our inspection has found abuse in this program by overstays, but here again sufficient reliable data does not exist to gauge the extent of the problem. We have found that terrorists, criminals and alien smugglers have attempted to gain entry into the United States through the VWPP. In addition, given the unreliability of NIIS data, INS cannot provide the Attorney General with the information she needs to certify that the countries enrolled in the pilot program are fully complying with the program's mandates.
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The second review was an OIG special investigation released in March 1998, entitled ''Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States,'' which report highlighted the threat that some nonimmigrant overstays may be involved in terrorist activities. In this particular investigation, one of the two Palestinians arrested for allegedly planning to bomb the Brooklyn subway illegally remained in the United States after his visitor's visa expired.
Mr. Chairman and members of the subcommittee, during the past 5 years, Congress and the Department of Justice have made apprehension of illegal aliens a top INS priority. Consequently, the bulk of INS's enforcement resources have been dedicated to border enforcement. The substantial infusion of personnel and other resources along the U.S.-Mexico border has further exacerbated the disparity between border enforcement and interior enforcement.
Border enforcement will have no effect on overstays; only interior enforcement can address the overstay problem. The visa overstay issue is a complex problem with no easy solutions. However, INS has failed to develop a reliable data system to gauge the extent of the problem or to assist it in developing effective enforcement strategies. For these and other reasons, INS needs to make development of data systems that will inform the nonimmigrant overstay debate a high priority.
I would be pleased to answer any questions you or the other members of the subcommittee may have.
Mr. SMITH. Thank you, Mr. Bromwich.
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[The prepared statement of Mr. Bromwich follows:]
PREPARED STATEMENT OF MICHAEL R. BROMWICH, INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman, Congresswoman Jackson Lee, and Members of the Subcommittee on Immigrations and Claims:
I appreciate the opportunity to appear before the Subcommittee to discuss the work of the Office of the Inspector General (OIG) with respect to non-immigrant overstays. In FY 1997, approximately 241 million aliens entered the United States as temporary visitors. More than 90 percent of these non-immigrants were tourists or came here to conduct business or attend school. Most of these individuals left the United States after their touring, business, or schooling was completed. However, a significant number did not. In general, non-immigrants who violate the terms of their admission and unlawfully remain in this country may present security risks or take jobs and receive other benefits that by law are reserved for legal residents.
We examined INS's monitoring of non-immigrant overstays and assessed the Non-Immigrant Information System (NIIS)INS's primary data collection system for non-immigrant overstay informationin an Inspection Report issued in September 1997. What we found was disturbing.
I. OIG FINDINGS
INS cannot identify individual overstays and cannot adequately describe the characteristics of the overstay population.
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INS currently has no automated method of identifying the number of aliens who have entered this country legally but failed to depart. INS estimates the overall number of overstays at more than 2 million, or 41 percent of the estimated 5 million illegal aliens in this country. The illegal alien population in this country is growing by an estimated 275,000 each year125,000 of whom are non-immigrants overstays.
INS cannot identify individual overstays nor can it adequately describe the characteristics of the overstay population residing in the United States, such as countries of origin, occupations, and worksites where overstays are employed. This significantly hinders INS's efforts to develop an overstay enforcement plan and hinders Congress's ability to make informed immigration policy. Two factors contribute to these shortcomings: serious inadequacies in NIIScurrently the only system that captures information on individual overstaysand a failure to mine potentially rich data developed by INS benefits and enforcement operations. I will address each of these issues in more detail.
INS's Non-Immigrant Information System does not produce reliable data.
By design, NIIS only captures information on about 10 percent of non-immigrant entries into the United States. Mexicans and Canadians entering through land border ports-of-entry comprise more than 90 percent of all non-immigrant entries into this country but are not tracked in NIIS because they are generally exempt from completing arrival/departure records known as Form I94, NIIS's primary source of information. Consequently, NIIS only captures data on the remaining 10 percent of non-immigrant entries into this countrythat is, only visitors entering the United States through airports and seaports or a few land border ports-of-entry.
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Furthermore, NIIS does not contain departure records for a large number of aliens, many of whom the INS believes have left the United States. Most of these unrecorded departures result either from the failure of the airlines to collect I94s from departing non-immigrants or from non-immigrants who depart through land borders where records of departure are not required or maintained.
The INS Statistics Division began seriously questioning the quality of NIIS data in FY 1993 when overstay rates for certain classes of visitorssuch as visa waiver entrantsrose significantly compared to the preceding year. This finding, coupled with unusual and unexplained fluctuations in overstay rates by class, month of admission, and country of admission, led INS to conclude that NIIS data after FY 1992 was unreliable for estimating overstay rates. INS cannot explain why this happened.
INS has not developed a clear and effective enforcement strategy to identify, locate, apprehend, and remove non-immigrant overstays.
INS estimates that non-immigrant overstays constitute more than 2 million or 41 percent of the total illegal alien population in the United States. However, of the 90,000 illegal aliens apprehended in the interior by INS's enforcement programs in FY 1996, only 10,000 were non-immigrant overstays.
INS's historic approach to overstays has been to concentrate its interior enforcement resources on criminal aliens and worksite enforcement. In preparing for this hearing, we received a copy of INS's new interior enforcement strategy, a document I believe the Subcommittee has also received. As far as I can tell, this strategy would represent a sea change in how INS evaluates the success of its interior enforcement program by de-emphasizing the number of illegal aliens deported from the United States. Under this new strategy, INS would instead assess the ''positive impact on local communities of INS law enforcement efforts'' such as increased wages in industries that typically hire illegal immigrants, reduced local crime rates, and rises in the cost of smuggling aliens or obtaining fraudulent immigration documents.
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The INS briefing paper also describes implementation of the Automated Departure Information System (ADIS), a system designed to more accurately capture I94 arrival and departure information. While the Office of the Inspector General has not examined this new data collection system, my understanding is that not all airlines have signed on to participate in ADIS and the ones that have done so are designating only certain flights at specified airports.
I would caution against unfounded optimism like that expressed by an INS spokesman quoted in The Washington Times after release of the OIG's 1997 Inspection Report as saying that the new automated data collection system would be in place by 1998. ''For the first time in history, the program will provide INS with accurate data regarding overstays,'' the spokesman said. While this is a laudable goal, we have yet to see any evidence that this has become a reality.
II. STATUS OF INS CORRECTIVE ACTIONS
Our Inspections Report made four recommendations to the INS:
Improve the collection of departure records by working with air carriers to promote compliance, and then actively monitor compliance and fine non-compliant carriers.
Since release of our report, INS has partially completed the training elements of its carrier education program, but has yet to begin monitoring carrier compliance. Although a November 1998 notice published in the Federal Register announced the agency's intention to begin fining carriers that fail to turn in arrival and departure I94s, no fines have been imposed because the proposed rules are not yet final. We have not received a written response from INS about the status of this recommendation since May 1998.
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Ensure complete and reliable overstay data.
After our report was issued, INS formed a Non-Immigrant Information System Operation and Maintenance Team to develop a plan to revise, reload, and analyze NIIS data for fiscal years 19951997. In May 1998, INS informed us that their reexamination of the data continued to raise significant concerns about its validity. INS did not specify what was wrong with the data. We have not received formal notification of their findings, although this is another outstanding recommendation for which we expect to receive a report of corrective action. However, informal contacts with INS staff indicates that the data continues to be unreliable and therefore unusable for accurately estimating overstay rates.
Analyze other sources of INS data to support development of an overstay enforcement strategy.
In response to our Inspection, INS developed a plan to obtain more current information on overstays by examining data available in its enforcement and benefit systems. INS agreed that such information was potentially available from: 1) records of apprehension; 2) records of persons removed; and 3) records of adjustment to legal permanent resident status. INS proposed to assess the amount of information available in automated records for these three groups in order to identify likely overstays and prepare a profile of their characteristics.
While the project's timetable envisioned completion by October 1998, we have not received any documentation from INS indicating the status of this data analysis effort. Informal contacts with INS staff, however, indicate that only the first of six proposed steps has been completed. We are unaware of any new timetable for completion.
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Develop an interior enforcement strategy that effectively addresses the growing overstay population.
INS was hopeful that reliable data on non-immigrant overstays would be available to help it develop an interior enforcement strategy. This clearly has not been the case with respect to NIIS and other INS efforts to obtain more current overstay data. Nevertheless, INS recently issued a new interior enforcement strategy, apparently without the benefit of more comprehensive or reliable data.
III. OTHER OIG WORK RELEVANT TO NON-IMMIGRANT OVERSTAYS
A. Visa Waiver Pilot Program
The lack of reliable overstay data has ramifications for other immigration-related programs. The OIG is currently examining the potential for fraud in INS's Visa Waiver Pilot Program (VWPP), a program that waives visa requirements for visitors from 26 countries who travel to the United States for business or pleasure. In FY 1997, 14.5 million visitors entered this country under the VWPP.
Our Inspection has found abuse in this program by overstays, but here again sufficient reliable data does not exist to gauge the extent of the problem. We have found that terrorists, criminals, and alien smugglers attempted to gain entry into the United States through the VWPP. In addition, given the unreliability of NIIS data, INS cannot provide the Attorney General with the information she needs to certify that the countries enrolled in the Pilot Program are fully complying with the program's mandates.
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B. Special Investigation: Bombs in Brooklyn
A Special Investigation by my office released in March 1998''Bombs in Brooklyn: How the Two Illegal Aliens Arrested for Plotting to Bomb the New York Subway Entered and Remained in the United States''highlighted the threat that some non-immigrant overstays maybe involved in terrorist activities. In this particular investigation, one of the two Palestinians arrested for allegedly planning to bomb the Brooklyn subway illegally remained in the United States after his visitor's visa expired.
We found that because the Palestinian's alleged purpose for traveling to the United States was solely to catch a connecting flight to Ecuador, he should not have received a visa that permitted him to remain in this country longer than the time needed to board a connecting flight. We recommended that the INS and the Department of State more carefully consider when ''transit without visa travel'' is appropriate; in this particular case, the Consular Office did not even consider this status.
Finally, our investigation discovered significant differences of understanding between INS and the State Department about various officials' roles in the visa process. Neither the immigration inspector at the port of entry nor the Consular Officer who issued the visa thought it was his or her role to verify that the Palestinian actually had a ticket to Ecuador or adequate funds for the trip. Neither thought that it was his or her responsibility to consider restricting the period of his stay to something less than the 29 days permitted under a C1 visa. We believe that this confusion over the appropriate role of INS and State Department officials needs to be addressed and clarified in the interests of controlling illegal immigration.
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Since issuance of our report last March, we sent two letters to the INS to check on the status of their corrective actionsthe first in October 1998, the second in January of this year. INS has not responded to either letter.
During the past five years, Congress and the Department of Justice have made apprehension of illegal aliens a top INS priority. Consequently, the bulk of INS's enforcement resources have been dedicated to border enforcement. The substantial infusion of personnel and other resources along the U.S.-Mexico border has further exacerbated the disparity between border enforcement and interior enforcement. Border enforcement will have no effect on overstays; only interior enforcement can address the overstay problem.
The visa overstay issue is a complex problem with no easy solutions. However, INS has failed to develop a reliable data system to gauge the extent of the problem or to assist it in developing effective enforcement strategies. For these and other reasons, INS needs to make development of data systems that will inform the non-immigrant overstay debate one of the agency's highest priorities.
I would be pleased to answer any questions.
Ms. JACKSON LEE. Mr. Chairman?
Mr. SMITH. Ms. Jackson Lee.
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Ms. JACKSON LEE. Mr. Chairman, I notice that you did introduce all of these panelists together and made note of the absence of Mr. Brownfield.
In fairness, might I submit Mr. Brownfield's statement into the record since the testimony is now before us and indicate that he made every effort to be here, but was previously scheduled, and I hope that we will make an opportunity for him to appear before the subcommittee. This is a statement by William R. Brownfield, Principal Deputy Assistant Secretary of State. I ask for its submission to the record.
Mr. SMITH. Without objection, his testimony will be made a part of the record; and the State Department did indicate to us that it was because of not going first that they would not supply this particular witness, which is a disappointment to me.
[The prepared statement of Mr. Brownfield follows:]
PREPARED STATEMENT OF WILLIAM R. BROWNFIELD, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR INTERNATIONAL NARCOTICS AND LAW ENFORCEMENT AFFAIRS, U.S. DEPARTMENT OF STATE
Mr. Chairman, Members of the Committee:
Thank you for the opportunity to discuss the global crisis of migrant smuggling. It is a particular pleasure to appear before this subcommittee, with whom my Bureau rarely has the opportunity to engage in dialogue. When my colleague, Deputy Assistant Secretary Jonathan Winer, last appeared before this Subcommittee in 1997, he described the migrant trafficking network as ''a pipeline stretching from Asia, across Europe and through Central America and the Caribbean to the United States.'' Mr. Chairman, the pipeline still exists, and so does the crisis of migrant smuggling.
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GROWING SOPHISTICATION OF ALIEN SMUGGLERS
The United Nations estimates that nearly four million human beings are trafficked across national boundaries every year, and roughly $7 billion is paid to criminal organizations involved in the smuggling. We know that the United States is the most popular point of destination of the trafficking organizations. Every year, hundreds of thousands are smuggled into the United States by land, sea, and air. They are transported by criminal organizations whose degree of sophistication matches that of the international drug cartels who bring tons of illicit drugs into our country every year. We suspect it is sometimes the same organization trafficking in both human cargo and narcotics. This trade in human cargo earns smugglers huge sums of money in annual profits. Smuggling fees can range as high as $50,000 for each illegal Chinese migrant. Normally, the migrant makes a down payment to the smugglers prior to departure, with the remainder due on completion of the journey. Funds come (''primarily from persons in developed countriesrelatives and prospective employersand the migrant makes repayment by working, often in sweatshop conditions, by criminal activities, or literally by ransom to criminal gangs.'') Migrants unsuccessful in reaching the United States the first time frequently try again.
Chinese smuggling by sea has not abated. Criminal organizations purchase vessels for voyages to Central America and Guam, which become transshipment points for migrants attempting to reach the United States. Maritime smuggling of other migrants has increased over the past year, especially from the Caribbean to South Florida. An estimated 70 percent of Cubans attempting to reach the United States by sea are transported by smugglers in small, fast boats. Migrant smuggling from and through the Bahamas is also on the rise.
Page 111 PREV PAGE TOP OF DOCA THREE-PRONGED INTERNATIONAL STRATEGY
The.U.S. Government has been wrestling with the crisis of global traffic in human cargo through most of this decade. We have developed a strategy of response, tying together many of the agencies and resources of the federal government. Simply stated, it has three basic elements:
1. Interdict and halt alien smuggling as far from our borders as possible. At the same time, we must assure fair adjudication of refugee and asylum-claims.
2. Attack criminal smuggling organizations at all points of their organizational structure. We must penetrate them at the source, in their transport network, their financial structure, and their representatives in the United States. This approach is similar to our law enforcement approach against the international drug trafficking organizations.
3. Develop and work closely with international partner.
IMPLEMENTING THE STRATEGY: INL'S ROLE
There are many elements of the U.S. Government involved in attacking the problem of migrant smuggling. Several bureaus in the State Department, the Justice Department, INS, the Coast Guard, U.S. Customs Service, and several other federal agencies play key roles. A partnership with Congress has also proved essential to develop the necessary legislation against alien smuggling, and to provide the funding necessary to support the effort. The Bureau for International Narcotics and Law Enforcement Affairs plays only a small role in the global drama, but our involvement has been important in four areas.
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1. Raising the consciousness of international partners.
Foreign governments and law enforcement authorities are sometimes reluctant to dedicate resources to alien smuggling cases because they see this as a victimless crime. The reality,is that migrants are often subjected to inhumane or dangerous treatment and in some cases to violence. Migrants die from suffocation, abandonment, accidents or brutality by smugglers. They are transported by sea in unsafe and unsanitary vessels that were not designed to carry passengers.
We have integrated alien smuggling into our regular bilateral dialogue with other governments. We have developed systematic and deep exchanges with key multilateral partners in our effort to develop a global approach to this international problem. The United Nations Crime Center, the G8's Lyon Group, the Intergovernmental Consultations Group on Asylum, Refugee and Migration (IGC), the Puebla Group (now know as the Regional Conference on Migration) and the Budapest Group have all provided fora for discussions and bases for coordinated action against alien smuggling. INL has funded and supported efforts by governments to publicize the dangers and risks to potential migrants.
2. Make alien smuggling a crime throughout the world.
In 1997, when INL last appeared before this Subcommittee, we reported some progress in encouraging other governments to pass legislation against alien smuggling. We have made more progress since then. We share our model anti-smuggling legislation as a guide for countries willing to enact laws against alien smugglers. The model has been applied widely in Central America and Central Europe. Recently, at the request of the government of El Salvador, the State Department and INS reviewed and commented on a proposed Salvadoran immigration law.
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In multilateral for we are sharing information on alien smuggling legislation, establishing points of contact, and exchanging information on smuggling trends and routes. In the Regional Conference on Migration.we are working with the Central American and Canadian members and the International Organization for Migration to develop an umbrella framework for the return of extra-regional migrants transiting Central America, the United States, or Canada.
While every government will make its own decision on the legislation it passes, we believe that effective legislation must, at a minimum, criminalize alien smuggling, fine carriers who participate in it, and provide a mechanism to seize the assets of the criminal smuggling organizations. Experience suggests smugglers will always seek out and exploit the weak link in the international chain. Our job is to eliminate those weak links.
3. Provide international assistance, training, and cooperation.
Legislation and international awareness will not succeed if there is not a parallel capability by law enforcement authorities. We have provided professional and technical immigration training for foreign border and immigration officials to prevent smuggled aliens from reaching the United States. Between November 1996 and August 1998, the Department of State and the Immigration and Naturalization Service conducted 14 international immigration or training development courses for approximately 500 participants from 22 countries.
In Fiscal Year 1998, the INL Bureau managed an anti-crime and law enforcement assistance budget of $20 million. In Fiscal Year 1999, it is $25 million. We attempt to focus as much of that budget as possible toward training and assistance that will strengthen law enforcement capacity to halt alien smuggling. Together with other agencies, we share visa and look-out systems and computer software with governments willing to work with us. We negotiate bilateral maritime agreements that give the Coast Guard authority to board and search suspect vessels. We work with the law enforcement community to tighten and improve operational cooperation and coordination in every way possible.
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4. Improve internal U.S. Government coordination.
One of our biggest challenges is to bring coherence and coordination to the individual efforts of more than fourteen different institutions in the U.S. government. The INL Bureau participates in an interagency working group that develops and coordinates an international approach to combating migrant smuggling.
One lesson learned over the past decade is that we need better information and intelligence on alien smuggling;
Knowing where the smugglers are located, how they operate, and when they are moving is critical to our efforts to disrupt their criminal activities. Having good intelligence, however, is only beneficial if prevention and enforcement measures are implemented. We are working to improve the utilization of intelligence to coordinate an international response to alien smuggling. A coordinated approach that makes effective use of intelligence, along with the cooperative efforts of domestic law enforcement personnel, overseas investigators, foreign governments, and State Department law enforcement, diplomatic, and consular personnel will provide the most comprehensive and effective way to deal with the complex problem of alien smuggling.
Mr. Chairman, we recognize the scope of the threat and the nature of our adversary. We realize that we are confronting a long-term struggle. We have a strategy. But we realize that turning this strategy into a long-term success requires close cooperation between Congress and the Executive Branch. We are look forward to working closely with Congress in that partnership.
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Mr. SMITH. Mr. Cronin.
Ms. JACKSON LEE. We will work on that, Mr. Chairman.
Mr. SMITH. I look forward to your support on that, Ms. Jackson Lee.
STATEMENT OF MICHAEL D. CRONIN, ASSOCIATE COMMISSIONER FOR PROGRAMS, U.S. IMMIGRATION AND NATURALIZATION SERVICE
Mr. CRONIN. Good afternoon, Mr. Chairman, Congresswoman Jackson Lee and Congressman Pease. I welcome this opportunity to testify on visa overstays and what the Immigration and Naturalization Service is doing to address the issue of nonimmigrant aliens who enter the United States legally, but subsequently fail to depart when their authorized stay expires.
This is my first appearance before the subcommittee during the 106th Congress. I would like to thank you for your past support, and I want you to know that I look forward to working with you to ensure that this new session is a productive one. It is my sincere hope that we will be able to build the partnership necessary to address visa overstays and the many other immigration issues that we face. You already received a detailed written statement on the topic of today's hearing, so I will just summarize the major points.
Page 116 PREV PAGE TOP OF DOC INS oversees more than 200 land, air and sea ports of entry where we conduct more than 500 million inspections every year. Of those admitted to the United States, almost two-thirds are noncitizens. Aliens who overstay their visas constitute a relatively small percentage of the millions of people who visit the United States annually, but they do constitute as much as half of the estimated illegal population in the country. Quantifying nonimmigrant overstays has proven difficult, and it has been the subject of much concern, both in Congress and inside INS.
Establishing an accurate record of visa overstays is problematic, largely because of the substantial differences between the inspection and data collection procedures used at land port of entries and those used at sea and airports, and the fact that the United States has never had a formal system of departure control.
Historically, INS has used the I94 form to collect arrival and departure information on aliens. In 1983 we created the Nonimmigrant Information System, or NIIS, to automate the collection of I94 data. At land ports, INS issues I94s to all visitors with the exception of those for whom documentary requirements have been waived, such as Mexicans who hold border crossing cards and Canadians.
At our sea and airports, we have traditionally relied on transportation companies to assist us, requiring them to provide I94s to passengers and to take responsibility that all alien passengers and crew members are documented.
The vast majority of nonimmigrant aliens entering the United States come from Canada and Mexico, a reflection of the close social and economic ties that we have with those neighbors, and most Canadians and Mexicans can enter the country without having to file an I94. As a result, INS collects arrival and departure data on only about 10 percent of foreign visitors.
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Section 110 of the 1996 immigration reform law directed INS, through the Attorney General, to develop a control system for capturing data on everyone who enters and exits through our land ports, including Mexicans and Canadians. As part of last year's omnibus budget bill, Congress extended the deadline for developing this system until March 30, 2001, to ensure that the system does not cause significant disruptions in trade, tourism, and other legitimate cross-border traffic. Maintaining the integrity of arriving and departure data is hampered by the current system used to collect this data. Travelers fill out the required forms by hand and the information is later entered into NIIS by a contractor, creating a problem if the completed form is illegible or inconsistent. Our personnel focus their limited inspection time on establishing an alien's admissibility rather than examining a form thoroughly for legibility and consistency because they are under a mandate to inspect passengers on international flights within 45 minutes, a requirement that we are currently meeting on over 99 percent of flights.
Since 1997 we have taken significant steps to improve NIIS, including the establishment of an oversight and maintenance group. We have produced a booklet for carriers that stresses the importance of completing forms and forwarding them to INS. Additionally, we have been working with our contractors to reduce the number of data entry errors.
Since May 1997, more than 4 months prior to the starting date mandated by Congress, INS has been running a pilot project with U.S. Airways at Philadelphia International Airport to test machine readable I94 forms. For the first time, we now have accurate information within 24 hours of a passenger's arrival or departure. As of December 21, we had recorded 51,023 departures through the pilot program, 99.8 percent of which matched the automated entry record. Of these matched records, we determined that 99.6 percent of participating travelers did not overstay their visas.
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Although preliminary and based on a small sample, these data are extremely encouraging. We have deployed or are now working to deploy the necessary equipment and infrastructure to expand the program to 27 other airports by the end of the current fiscal year.
Our ability to collect entry and exit data has also been enhanced by other high technology systems that INS is deploying. These include INSPASS and SENTRI, which expedite the processing of frequent low-risk travelers at airports and land ports, and the remote video inspection systems being installed at remote ports of entry along the northern border.
While INS has made considerable strides in collecting accurate entry and exit data in a timely manner, we still face an even greater challenge, removing those aliens who overstay their visas. Given their sheer numbers, it is not possible to locate and remove everyone that has not failed to depart after their authorized stay expires.
Our top priority is to remove criminal aliens who pose a threat to public safety, the same priority as INS's new interior enforcement strategy. We are confident that this strategy will not only enhance the agency's ability to identify and removal criminal aliens; it will also deter overstays by reducing job opportunities, the major reason why people remain in the U.S. after their visa expires.
We are also working to prevent visa overstays through a number of other initiatives. One of the most promising is the development of passenger analysis units that we have been strategically placing at airports. This intelligence collection system provides our inspectors with data that allows them to identify potential offenders before they enter the country based on their previous visits. Clearly, INS shares your concern about visa overstays. Your past recommendations for addressing this issue have been helpful and we are ready to work with the committee further to ensure that those who knowingly violate our immigration laws cannot do so with impunity while the vast majority of visitors who enter and exit the U.S. legally can continue to do so unencumbered.
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Thank you, Mr. Chairman, and I would be happy to answer any questions by you or other members.
Mr. SMITH. Thank you, Mr. Cronin.
[The prepared statement of Mr. Cronin follows:]
PREPARED STATEMENT OF MICHAEL D. CRONIN, ASSOCIATE COMMISSIONER FOR PROGRAMS, U.S. IMMIGRATION AND NATURALIZATION SERVICE
Mr. Chairman and Members of the Subcommittee, I welcome the opportunity to testify on the issues concerning nonimmigrant aliens who enter legally but subsequently fail to depart when their authorized stay expires.
My testimony today will cover Immigration and Naturalization Service's (INS' or Service's) inspection workload and where and how that workload is processed.
We will cover the difficulty in collecting data on nonimmigrants and the steps the Service has taken and is taking to address this difficulty.
The testimony will describe INS current arrival and departure data collection processes at our air, land and sea Ports-of-Entry.
You will hear about our automated I94 entry-exit pilot program. We will describe the pilot's results to date and how expanding the program can further the capture of reliable entry and exit data.
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I will describe INS' Interior Enforcement Strategyone that is multi-faceted and that attacks the problem of illegal aliens, including nonimmigrants who overstay, in various ways.
We will also address additional INS initiatives. These initiatives are designed to address the problem of nonimmigrant overstays and illegal immigration. Included will be information on promising automated inspection systems that use state-of-the-art technology, such as biometrics.
Before I continue, I would like to thank you and the members of the subcommittee for your support. We look forward to working with you in the future to help address the nation's important immigration issues.
The INS inspects over 500 million persons at over 200 air, land and sea ports-of-entry. Of those admitted, almost two thirds are noncitizens. About 85 percent of these visitors enter at our land border Ports-of-Entry, reflecting the close social and economic ties we share with Canada and Mexico, and the relative ease of international business and pleasure travel to the United States.
Nonimmigrant aliens who enter legally but overstay their authorized period of admission constitute a relatively small percentage of the millions of people who visit the United States annually. However, while this annual percentage is small, it constitutes a significant portion (approximately 4050%) of the estimated illegal alien population in the United States, with the remaining portion being aliens who have entered the United States without inspection.
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Identifying the number of nonimmigrant overstays has proven difficult and has been the subject of much concern both from within and outside the INS. Inspection procedures and collection of arrival and departure information on aliens differ substantially at land Ports-of-Entry (POEs) from air and sea POEs. Historically, the INS has used Form I94 to collect arrival and departure information on aliens. The I94 Form also serves to document an alien's status while in the United States. In 1983, the INS created the Nonimmigrant Information System (NIIS) as an automated system of arrival and departure records and the I94 has been the means for providing information to that system.
ARRIVAL DATA COLLECTION
Land Border POEs
The INS issues I94s to all nonimmigrants with the exception of certain visitors for whom the visa requirements have been waived. Mexican visitors who are Border Crossing Card (BCC) holders and who cross the United StatesMexican border for less than 72 hours do not receive an I94. If Mexican BCC holders plan to travel beyond 25 miles of the Mexican border or to stay longer than 72 hours, they can apply to INS for issuance of a Form I94 which maybe used multiple times and is valid for six months.
The Congress of the United States has instructed the Attorney General to develop an entry-exit control system for the land border. Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 set the parameters for such a system and Section 116 of the Omnibus Budget Bill, PL 105277 extended the deadline for developing the system for land borders and seaports until March 30, 2001. The system that is developed must not significantly disrupt trade, tourism, or other legitimate cross-border traffic at land border Ports-of-Entry.
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Air and Sea POEs
Historically, the U.S. law has required transportation companies to assist the INS in the process of recording the arrival and departure of aliens entering the United States by air or sea. Requirements for transportation companies to provide passenger manifests and take responsibility for assuring that alien passengers and crew are properly documented date back to the beginning of this century. Sections 231 (passenger manifest requirements) and 252 (crew manifest requirements) of the INA have been in their current form since 1952. In general, transportation companies are required to provide information on all passengers and crew arriving in, and departing from the United States from foreign territory. Certain exceptions are made for carriers operating from a contiguous territory.
Departure Data Collection
The United States has never had a formal system of departure inspection. Instead, the INS has relied on the transportation companies (air and sea carriers) to assume most of the responsibility for the collection of departure information. As with arrival manifest requirements, under Section 231 of the INA, carriers are required to collect the Departure Form I94s for passengers departing the United States by air or sea and forward the forms to the INS office at the POE. Nonimmigrants departing the United States via the Canadian or Mexican land borders are requested to return the Departure Form I94s to the U.S. or Canadian/Mexican inspectors at departure. Those collected by the Canadian officials are returned to the INS office at the POE. In all cases, the INS office forwards all the forms to the data entry contractor for entry into NIIS. Arrival and departure information are matched through the unique admission number, which appears on both the arrival and departure sections of the Form I94.
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In response to changing, and sometimes conflicting, demands for facilitation and control at air POEs, the INS has, by regulation, modified the manifest requirements over time. Under procedures developed to facilitate travel to the United States, the INS exempted certain classes of aliens from the manifest requirements.
DATA INTEGRITY AND COMPLETENESS
Since no arrival and departure data is currently collected on the great majority of Mexican and Canadian citizens, INS only collects arrival and departure data on approximately 10% of foreign visitors. In addition, since the INS does not operate departure inspection stations at the borders, the collection of departure data on nationals of other countries who leave the United States via the Canadian and Mexican borders depends entirely upon the alien's voluntarily returning the Departure Form I94 to a border official. Those departing the United States by air or sea are required to return the forms to the airline or shipping agent. Because of these manual procedures, the potential for lost forms exists.
Since the collection of arrival and departure data is currently done by means of a manually completed form usually filled out by the traveler for subsequent entry into NIIS by a data entry contractor, biographical information on either or both the arrival and departure portions maybe illegible or inconsistent. Statutory requirements, such as the 45 minute inspection time contained in Section 286 of the INA, and industry demands for facilitation have resulted in the INS focusing the limited inspection time on establishing the alien's admissibility. Currently, passengers on over 99% of international flights are inspected within the 45-minute requirement.
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The NIIS data entry process further compounds the problem with data integrity. Increases in the volume of arrival and departure forms have led to increasing numbers of keying and data errors which affect the system's ability to accurately match arrival and departure records. Over 50 million arrival and departure forms were data entered in FY 1998 at a cost of over $21 million. Efforts to improve the quality of the data in NIIS, by rejecting records containing substantial errors and applying stringent matching criteria, have also adversely affected the system's arrival/departure match rate. All of this has affected INS' ability to identify nonimmigrants that have overstayed their permission to remain in the United States.
The latest nonimmigrant data available for evaluation on overstays are for fiscal year 1997. The apparent overstay rates for this period continue to be significantly higher than the most recent reliable rates observed in fiscal year 1992 data. Current data also show a high degree of fluctuation in apparent overstay rates by nonimmigrant class, month, and country of admission that renders the data incompatible with the assumptions used in the overstay methodology.
Since 1997, the INS has taken significant steps to improve NIIS; the system has been examined and problems identified. An Oversight and Maintenance Group has been established to continue to monitor the system. Data entry procedures have been scrutinized and significant changes made.
INS produced and distributed Easy Come, Easy Go, a booklet for carriers. This guidance stresses the importance of the completion and forwarding of forms I94, I94W, I94T, and I92. In May of 1998, the Office of Inspections provided field guidance, which detailed the proper procedures for processing I94s. In January of 1999, the Office of Inspections reiterated these instructions in a wire to our field components. The intent of these actions is to improve the processing and handling of arrival and departure records.
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The Service does have the authority to fine carriers under Section 231 of the Act when arrival and departure forms are not properly processed. A notice of proposed rulemaking is being prepared to amend section 231 of Title 8 of the Code of Federal Regulations and to delineate criteria and procedures for imposing fines pursuant to 231(d) of the Act for failure to submit a properly completed arrival or departure manifest.
While the aforementioned steps are aimed at improving the current system of collecting arrival and departure data, the Service believes if we are ever to achieve an effective and accurate arrival and departure system, we would need the automated collection of arrival data at the time of inspection, the issuance of a machine-readable departure card, and the automated collection of departure data at the time of departure. In addition, the enactment of the Immigration Reform and Illegal Immigration Control Act (IIRIRA) of 1996, has strengthened those sections of the INA which address the entry and collection of arrival and departure information of aliens and required the INS to reassess current procedures regarding both manifest requirements and the practical implications of certain conditions of the Visa Waiver Pilot Program as currently implemented.
Automated I94 System
Included in the FY 1996 Appropriations Act(see footnote 3), Congress requested that the Attorney General submit a plan and timeline not later than February 1, 1997, for the Immigration and Naturalization Service's (INS) pilot project on the automated collection of arrival and departure information. The INS submitted a report on the Automated I94 Pilot Project, a cooperative effort between the INS and US Airways. This pilot began in May 1997, 4 1/2 months before the mandated start date.
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The INS developed the automated Form I94 pilot program to apply current technology to the collection of arrival and departure information in a controlled environment. Consistent with the projections made in the June 1996 report, the pilot took place at one U.S. and one foreign airport and involved one air carrier. In order to ascertain the airline industry's interest and seek its cooperation in piloting the program, the INS distributed the pilot project proposal to industry representatives. US Airways was the only carrier that responded to the proposal and expressed interest in participating in the pilot program. After reviewing possible U.S. and foreign airports and flights for the automated Form I94 pilot project, the INS and US Airways selected the Munich-Philadelphia route.
The INS/US Airways pilot worked in the following way. US Airways check-in agents, utilizing magnetic stripe technology, produced a machine-readable Arrival Form I94 along with the machine-readable boarding pass, which they currently printed. The passenger presented the Arrival Form I94 to the immigration inspector upon arrival in Philadelphia. Upon arrival in the United States, the automated Arrival Form I94 was used to create an arrival record, which was uploaded directly to NIIS daily. For the first time, accurate arrival information was available within 24 hours of the passenger's arrival. A machine-readable Departure Form I94 was given to the passenger to surrender to the airline agent upon departure from the United States.
The US Airways staff at Philadelphia collected the Departure Form I94s during the boarding process. Upon receipt of these forms from US Airways, the INS staff at the airport read them into the system to be uploaded directly to NIIS daily. For the first time, departure information was available within 24 hours.
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Automated I94 Equipment Deployment
The system was deployed at Philadelphia in FY 1997. FY 1998 funds were used to acquire equipment for an additional 17 airports; the system's infrastructure was deployed at 12 airports in FY 1998 and at the remaining 5 in FY 1999. In FY 1999, equipment will be procured for an additional 20 airports. The INS plans to deploy the system to 30 additional airports in both FY 2000 and FY 2001.
The pilot began on May 14, 1997 and continues to run. At the Philadelphia airport, INS is now able to report on and analyze matched entry and exit data for alien travelers using flights that participate in the program.
The results as of December 21, 1998: 51,023 records of departures through the pilot program. Only 127 departure records did not match the automated entry record. This is a match rate of 99.8 percent. The non-matches include people whose electronic form did not work and computer error (e.g. a character on the card could not be read accurately). Of these matched entry-exit records, INS can achieve for the first time a reliable count of a subset of an overstay population. Albeit in limited scale, the Pilot shows that of the 50,896 matched entry-exit records, 99.6 percent did not overstay. The 214 records for whom INS confirmed an overstay equaled 0.4 percent of all alien travelers who departed the U.S. through the pilot program.
Page 128 PREV PAGE TOP OF DOC The INS is now analyzing these overstay records to design procedures for follow-up and enforcement. The follow-up will contribute to the ongoing work with the Department of State so that consulates can be informed about a traveler's former overstay behavior. In addition, INS investigations will work on identifying patterns of visa abuse that could lead to enforcement actions. The follow-up will develop in sophistication and impact as more flights at more airports begin to provide matched entry-exit data to the Service.
The figures on overstays above do not represent a true overstay rate, as INS defines and estimates them. The true rate would be significantly higher. The reason is that not all visa holders exit the United States at Philadelphia on a pilot flight. They leave through other airports or across the land border and are not enrolled in the database. This is a limitation that presents itself in any pilot program but it will be increasingly overcome as the pilot expands.
The critical issue now involves airline cooperation. US Airways, the test airline, has been cooperating and now includes all of its European operations. TWA is just beginning to work with the Service at the St. Louis airport. The INS continues to explore possibilities with other airlines. The INS is exploring whether to build a phased-in approach to making enrollment mandatory. We believe that future use of the entry-exit system will reduce airlines' exposure to fines that result from transport of persons with improper documentation.
The Automated I94 System is the front-end to the INS' new Arrival/Departure Information System (ADIS) at air Ports-of-Entry (POEs).
Arrival/Departure Information System (ADIS)
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The ADIS has been designed to meet the mandate for the development of the automated entry/exit control system under section 110 of IIRIRA. It has been designed to:
Collect a record of arrival and departure for every alien;
Match a record of departure with an arrival record;
Identify non-immigrant overstays and provide that information to Ports-of-Entry (POEs) and the Department of State (DOS).
Although, it appears to be similar in function to NIIS, ADIS has been designed to handle a significantly larger number of records than NIIS and could provide for the electronic transfer of arrival and departure information for the POEs, regardless of the method used to collect the data (i.e. other automated inspection systems such as INSPASS). ADIS could replace NIIS and its interfaces with other INS systems when all POEs are equipped to transmit arrival and departure information electronically. Until then, ADIS will transmit nonimmigrant arrival and departure information to NIIS so that current NIIS interfaces with the Central Index System (CIS) and the National Automated Immigration Lookout System (NAILS) can be utilized. Additionally, information on Visa Waiver Pilot Program (VWPP) participants will continue to be passed to NAILS, enabling the interception at POEs of VWPP applicants who have previously overstayed.
Visa Waiver Pilot Program
Page 130 PREV PAGE TOP OF DOC I would like to turn to the Visa Waiver Pilot Program (VWPP). The VWPP eases travel for millions of travelers. A valid passport is all that is required for the nationals of 26 countries in order to visit the United States for business and pleasure. Approximately 50 percent of all documented nonimmigrants enter through the VWPP. The removal of a need to apply for a nonimmigrant visa at an American Embassy or Consulate abroad has saved both the traveling public and the U.S. Government time, money and effort. However, the number of refusals of admission continues to increase as the program expands. It is also becoming more difficult to detect travelers who intend to remain in the United States beyond their 90-day admission period. Organized criminal elements realize that elimination of the nonimmigrant visa application process facilitates entry into the United Statesfor both bonafide and malafide entrants. The Service is seeing expanded use of genuine stolen passports from VWPP countries. The Inspector's challenge is greatsift out imposters using genuine documents during the brief period allotted for primary inspection.
Addressing the Nonimmigrant Overstay Problem
The INS has previously testified that the economic lure of the United States is the main reason illegal aliens stay in the United States, including nonimmigrant overstays. Many committees and commissions, such as the Jordan Commission, have concurred. I would like to describe several initiatives and strategies that the Service is using and will be exploring to make it more difficult for aliens to enter, remain and work in the United States.
Interior Enforcement Strategy
The INS' approach to interior enforcement is designed to deter illegal migration, prevent immigration-related crimes and remove individuals, especially criminals, who are unlawfully present in the United States. Concerning deterring illegal migration, INS proposes to strengthen overseas deterrence programs, for instance increased INS presence overseas (i.e. Operation Global Reach) and increased carrier consultant training. Interception of aliens before entry into the United States has a dual benefit of decreasing the number of illegal aliens in the United States and driving up the cost for those, including organized criminal rings, intent on entering the United States. In addition, INS will increase international efforts to disrupt the criminal fraudulent document infrastructure overseas through a program of joint information sharing and investigation with source and transit countries.
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As a result of legislation, INS has moved in meaningful ways to respond to community reports and complaints of illegal aliens, again close to 50 percent being nonimmigrant overstays. The INS has placed law enforcement officers in every state across the country to respond to local community issues and needs. The INS intends to place officers in designated locations as Quick Response Teams to respond to the impact of illegal aliens on local law enforcement. The INS Law Enforcement Service Center (LESC) responds to 7 to 8 thousand queries a month from local law enforcement officials. The INS officers are involved in a wide variety of joint investigation and task force projects involving other federal, state and local agencies, targeting the criminal activity of illegal aliens.
Penalties for Nonimmigrant Overstays
The INS employs a graduated set of controls and penalties for aliens who may potentially or have in fact abused the conditions of their visas. A maintenance of status and departure bond can be required when there are significant questions about a nonimmigrant's intent or ability to support himself or herself while here. This tool is used sparingly; however, because tracking of bond cases and remission of bonds generate extensive administrative requirements. The INS is also using its authority for expedited removals at its Ports-of-Entry. This mechanism not only stops the entry of a potential nonimmigrant overstay, it creates a bar for certain immigration benefits. Nonimmigrant visas are cancelled and the information pertaining to the alien is forwarded to the Department of State for entry into its lookout system. The information is also placed in INS lookout databases.
The Service has the authority to fine an alien for failure to carry proof of alien registration, such as an alien registration card or I94, if a nonimmigrant.
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Additional INS Initiatives
Additional INS initiatives designed to attack illegal immigration are: worksite enforcement, immigration status verification, fraud resistant documentation, removal of illegal aliens, the immigration agent position and introduction of the Passenger Analysis Units.
The INS believes that the employer plays a crucial role in creating an effective deterrent to illegal migration. The majority of the people who overstay do so to work. Therefore, efforts that reduce the magnet of job opportunities for illegal migrants have a profound effect. Worksite enforcement is such an effort. The program builds relationships with employers, openly conducts audits and surveys, invites employer cooperation, and continues to work with employers well after unauthorized workers, including nonimmigrant overstays, are removed to ensure continued compliance with immigration laws. The INS identifies and targets non-compliant employers based on institutional experience and current data. Egregious violators can be criminally investigated and prosecuted.
Immigration Status Verification
Liaison continues with the Social Security Administration concerning the sharing and matching of SSA and INS data. Our immigration status verification program continues with status information making it easier for employers to ensure they are maintaining a legal workforce and for agencies to verify eligibility for benefit programs.
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Fraud Resistant Documentation
The INS continues its strategy of developing more fraudulent resistant documentation. The new I551 card is an example. This technology is exportable and can be used for nonimmigrant documentation, such as, border-crossing cards used by nonimmigrant border crossers. The state of the art use of technology including biometrics offers much promise. The Service's automated inspection systems are illustrative.
The INS Passenger Accelerated Service System (INSPASS) is an automated system that can significantly reduce immigration inspection processing time for authorized travelers and allows inspections to be better utilized in screening high-risk passengers. INSPASS combines automation with a hand geometry biometric image to validate the claimed identity on an individual. The INSPASS card contains not only a photograph of the bearer but also a fingerprint. The fingerprint of the bearer is captured during the application process, digitized and made a part of the data record for that individual. The bearer of the card places her or his hand on a reader plate and a match is made of the bearer's handprint with the handprint in the database. Through December 1998, more than 80,000 frequent travelers enrolled in or renewed their INSPASS enrollment, and there are presently over 40,000 active participants. More than 300,000 admissions have been made at INSPASS kiosks since 1995. Immigration Inspectors have conducted more than 10,000 compliance checks of INSPASS admitted persons with no fraud found.
Remote Video Inspection System (RVIS)
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The INS and USCS have initiated the RVIS program along the northern border. The system is placed at low-volume, small, remote POEs that were only open for limited hours to extend their hours of operation. Inspectors from both agencies are able to remotely inspect travelers at the RVIS POE using interactive video, surveillance and control equipment. A traveler enrolled for this program is issued a card, which is swiped through a card reader. If the card is valid and there are no alerts, the system instructs the traveler to proceed into the United States. If the card is invalid or expired, or if there are any alerts, the system prompts the inspector to continue the inspection manually.
Secure Electronic Network for Traveler's Rapid Inspection (SENTRI)
The SENTRI program is an electronic, dedicated commuter lane that enhances the flow of low risk frequent border crossers through a Port-of-Entry while maintaining the security and integrity of our borders. The system uses a pre-enrollment process and the PORTPASS card coupled with a vehicle-mounted electronic transponder to improve the inspection process and provide a predictable wait time for entry into the United States. An inspector reviews the information that appears on the computer monitor, and if no lookout information appears, the vehicle and driver are allowed to proceed. Automated inspection systems such as SENTRI and RVIS have the potential for electronic capture and transmission of entry, and possibly exit data.
Removal of Illegal Aliens
Removal of illegal aliens, especially criminal aliens remains a high priority. The Institutional Hearing Program (IHP) efficiently channels criminal aliens for INS processing and hearings while they are still incarcerated. The size of the criminal alien population is substantial. The INS estimates that approximately 221,000 foreign-born residents are currently incarcerated in Federal, state, or local facilities. Nearly two-thirds entered the country without inspection. An additional 32.5 percent are legal immigrants who have committed a crime, while 2.5 percent are aliens who have overstayed their visas. Our Detention and Deportation Program prioritizes its resources for detention and removals to comply with legal mandates. The top two priorities are criminal aliens and those who are a flight risk. These two categories of aliens exhaust most of our detention space. Overstays are in a third priority, joining those in the category of unlawfully present in the United States, and are generally not detained. In FY 1997, INS removed almost 8,000 overstays, in FY 1998, almost 8,500.
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Immigration Agent Position
The INS no longer uses special agents to perform the more routine but highly important interior enforcement work. The immigration agent position was established several years ago to free special agents from this work so that they can perform more complex casework. The immigration agents reduce illegal employment opportunities through conducting workplace compliance inspections and administrative sanctions cases, and processing aliens for removal proceedings.
Passenger Analysis Units
The Passenger Analysis Unit (PAU) is an initiative with the potential for success against nonimmigrant overstays. The PAUs have been strategically placed at several of our air Ports-of-Entry. Since their inception, PAUs have contributed to the inventory of intelligence information available to Immigration Inspectors. Inspectors take the names, document numbers and other vital information about incoming air passengers obtained from air carriers and check these data against arrival and departure systems. As a result, probable immigration offenders are identified before they arrive in the United States. Overstays are particularly amenable to this type of intelligence collection, in that our Nonimmigrant Information System (NIIS) will give an Inspector a rough idea of an arriving passenger's travel patterns, including overstay indicators like lengthy stays or small gaps between entries. If an incoming passenger displays these or similar indicators, the passenger is identified as a possible offender prior to arrival and is flagged for more intense inspection. When combined with an Inspector's actual findings, this type of lead information often enables us to initiate an enforcement action against an overstay who otherwise may not have raised anyone's suspicion.
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In conclusion, INS has taken steps to improve its data on nonimmigrant entry and departure while recognizing that most nonimmigrant arrivals are not recorded. The INS continues to attack illegal immigration with numerous initiatives and strategies. The initiatives and strategies are designed to deter entry of potential illegal aliens, create obstacles for illegal aliens to remain and work in the United States, and effectively remove illegal aliens from the United States.
Thank you for your attention and I am pleased to answer any questions.
Mr. SMITH. Ms. Hamilton.
STATEMENT OF DONNA J. HAMILTON, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE
Ms. HAMILTON. Mr. Chairman, Congresswoman Jackson Lee, Congressman Pease, it is a pleasure to be here. I am happy to be here representing the Department of State.
Mr. SMITH. We are happy to have you here.
Ms. HAMILTON. The change of the time hasn't made any difference to us really. I am here because the Department of State considers these issues to be of the utmost importance.
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Mr. Chairman, last year our consular officers around the world adjudicated over 7 million7.3 million nonimmigrant visa applications. In addition to people who receive visas, over 12 million travelers visit the United States on the Visa Waiver Pilot Program.
In making our decisions, we, as consular officers, strive to facilitate the travel of visitors because we realize the contribution that these visitors make to the economy and the importance of travel to the United States. At the same time, we take extremely seriously our responsibility to carefully screen all applicants and to deny visas to those who are ineligible. Consular officers refused visas to more than 1.5 million applicants last year; on average, this is about 21 percent of the total nonimmigrant visa applicants. In making our decisions, we rely on a variety of information.
First of all, we have a very comprehensive look-out database that includes not only Department of State information, but information that we share with other agencies, particularly INS, but also DEA, Customs and others. This database contains 5.8 million names and that is up from 4.9 million in 1997. And so that demonstrates the increase in data-sharing that we have experienced. However, these names are the ones of people that have serious ineligibilities. In fact, the most common reason why applicants are denied nonimmigrant visas is because they have not been able to overcome the presumption of the law that they are intending, permanent immigrants.
In determining whether to issue a nonimmigrant visa, the consular officer must make a judgment about the applicant's intentions based on evidence of the applicant's ties and commitments in his or her home country. The burden of proof is on the applicant to establish his or her qualifications.
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Despite our efforts and the care that we take in screening applicants, a certain percentage of those to whom we issue temporary visas have either misled us about their intentions or have changed their minds after entering the United States. These are the people that remain here and become visas overstays. Unfortunately, we do not have reliable statistics on the extent of overstays by holders of legitimate visas or participants in the Visa Waiver Pilot Program.
For example, it is unclear what percentage of reported overstays may actually have changed nonimmigrant status, adjusted status, and it is also unclear whether some of those overstays may have altered or obtained counterfeit visas to enter the United States. While visa overstays, we know, contribute to our illegal alien population, we can only guess as to what percent of those illegally in the United States originally entered with visas as opposed to those who entered without documentation.
We would very much like to receive feedback on aliens who overstay their visas and we would also like to know those who depart on time. With this information, we would be able to refine the quality of our visa decisions and make better decisions both as to those to whom we should issue visas and those to whom we should refuse. If there is a pattern of abuse, we could tighten up our criteria based on what we see in the data coming back to us.
Let me mention to you something about our partnership with the Immigration and Naturalization Service in helping to prevent visa overstays. We work with the Service constantly on our automated systems to try to improve the amount and kind of information that we are able to exchange through electronic data-sharing arrangements. I just want to briefly mention two examples of new technology, new places where we are working together that show promise for making the process of documenting exits and entries more automated and more reliable.
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One of these concentrates on student visas. It is called the Cyprus system, and we are working with INS so that we can implement a system that would track students as they are issued visas, come to the United States, change status and eventually leave. INS has a pilot on this, and we are going to be adding some of our overseas posts to this this year.
The second pilot that we have, or approach that we have, is the identification card that we are developing with INS for the 2002 Winter Olympics. To develop this card we are working with Olympic organizers as well as INS. The card will contain data or relate to a database with data about all of the Olympic family members, and we will also be able to track the entry and exit of the Olympic family members. We hope that we can continue to work with INS with these kinds of technologies so we can make this a true joint effort.
We also hope to build on our experience with the new border crossing card and the exchange of data as part of that project because we are hoping to develop a next generation of visas that will provide improved technology both in terms of the security of the document and also in terms of the ability to track people coming in and out of the United States.
With that, I would like to close my oral statement at this time. I would just like to thank you for the opportunity to testify on this issue. We stand ready to work with you and with INS on efforts to reduce the rate of visa overstays while continuing to make the process of visiting the U.S. for legitimate visitors as easy as possible.
I would be pleased to take any questions.
Page 140 PREV PAGE TOP OF DOC Mr. SMITH. Thank you, Ms. Hamilton.
[The prepared statement of Ms. Hamilton follows:]
PREPARED STATEMENT OF DONNA J. HAMILTON, PRINCIPAL DEPUTY ASSISTANT SECRETARY FOR CONSULAR AFFAIRS, U.S. DEPARTMENT OF STATE
Mr. Chairman and Members of the Committee, on behalf of the Bureau of Consular Affairs, I am pleased to comment on the important topic of visa overstays. As one of the two agencies principally responsible for administration of our nation's immigration laws, the Department of State considers the topics of today's hearing of the utmost importance.
Mr. Chairman, last year our consular officers around the world adjudicated more than 7,300,000 nonimmigrant visa applications. In addition to those who receive visas, over 12 million foreign visitors entered on the Visa Waiver Pilot Program for up to 90 days. We strive to facilitate the travel of bona fide visitors who contribute billions of dollars to our economy, but at the same time take seriously our responsibility to carefully screen all applicants and deny visas to applicants who are ineligible. Consular officers refused visas to more than 1,500,000 applicants; on average about twenty one per cent of all nonimmigrant visa applicants. They check each applicant against the consular lookout database for permanent visa ineligibilities and previous refusals. This database, which includes information from other agencies (INS, DEA, Customs) currently contains 5.8 million names and aliases, up from 4.9 million in 1997. At some consular posts, such as those in countries with a history of illegal immigration to the U.S., the refusal rates are quite high. The most common reason why applicants are denied nonimmigrant visas is because they have not been able to overcome the presumption of the law that they are intending permanent immigrants. Consular officers around the world are trained to identify potential overstayers by examining the applicants' ties to a home abroad that will compel their departure from the United States after a temporary stay. The nature of those ties will vary with local conditions. In determining whether to issue a nonimmigrant visa, the consular officer makes a judgment about the applicant's intentions based on evidence of the applicant's ties and commitments in his home country. The burden of proof is on the applicant to establish his or her qualifications. In making these determinations, consular officers face many challenges: a high volume of visa applicants, the limited resources available to investigate borderline cases, rapidly changing economic and social conditions and the growing sophistication of fraud rings who coach applicants and outfit them with a panoply of fake documents. Even visas legitimately issued to bona fide applicants maybe stolen or sold for photo-substitution by intending illegal aliens.
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Despite our efforts, a certain percentage of those to whom we issue temporary visas have misled us about their intentions or change their minds after entering the U.S. When they remain in the U.S. beyond the time authorized by INS, they become visa overstays. Unfortunately, we do not have reliable statistics on the extent of overstays by holders of legitimate visas or participants in the Visa Waiver Pilot Program. For example, it is unclear what percentage of reported overstays may actually have changed nonimmigrant status, adjusted status to that of an immigrant or by some other means managed to remain in the United States lawfully without their current valid status having been recorded. The departures of some are missed and not accounted for. While visa overstays contribute to our illegal alien population, we can only guess as to what percent of those illegally in the U.S. originally entered with visas as opposed to those who entered without documentation. We have heard estimates ranging from 25% to 41%. We would very much like to receive feedback on aliens who overstay their visas. We would also like to know which ones depart on time. With this information we could refine the quality of our visa decisions. If there is a pattern of abuse, we could tighten up our criteria.
One technique we are able to use on a limited basis to measure our effectiveness in determining the bona fides of nonimmigrant visa applicants is what we refer to as a ''validation study.'' These studies follow up with successful visa applicants several months after issuance in order to determine what percentage of aliens who receive visas actually return home. Tour companies, businesses, schools and, in some cases, individual applicants receive a follow up call from the consular staff checking to see if the applicant or a group of applicants all have returned home. We examine the applications of those who did not return to see if we were duped by a fraudulent document scam, a bogus exchange program, or some other fraud. By determining how successfully we have assessed previous applicants, we maybe able to prevent making the same mistake twice by honing our interview techniques, requesting different documentation or by changing other aspects of our application process.
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Validation checks, however, consume valuable time and resources and only survey a limited number of applicants at a few posts at a time. Access to a comprehensive system tracking the compliance of visa applicants would be extremely valuable to consular officers in improving visa adjudication worldwide.
Mr. Chairman, I do want to say a word about our partnership with the Immigration and Naturalization Service in helping to prevent visa overstays. We are working with the Service to improve the amount and kind of additional information we are able to exchange through electronic datasharing arrangements. The availability of information on deportees, criminal aliens, aliens denied entry and aliens refused other immigration benefits would go a long way toward ensuring more effective visa adjudications. Our partnership with INS and other border security agencies is becoming ever stronger as we strive for one hundred per cent mutual availability of information. We are taking advantage of the increased electronic media now available to consular and INS officers to share information through e-mail. We want to increase electronic links between our posts abroad and INS in order to share information more quickly on individual or group mala fide visa holders prior to their arrival at ports of entry.
I would like to mention here two examples of how State and INS are working together to track the entry and exit of temporary visitors to the U.S. The first involves electronic datasharing between INS, State, and academic institutions in the U.S. to track the entry and exit of students and exchange visitors. State is working with INS to expand the 1997 pilot of the Coordinated Interagency Partnership Regulating International Students (CIPRIS) system to our posts overseas. In implementing CIPRIS, State wants to issue a multifunctional stand alone card that will serve as a travel document, student card, I94, and other purposes agreed to by INS. For the year 2002 Winter Olympics, we are working with Olympic organizers and INS on a machine readable identification card that will serve as a visa and I94 for entry and exit purposes. We also realize that we must work to improve the quality of our visas to further guard against impostors and photo substitution. Building on our experience with the new Border Crossing Card issued to Mexican citizens, we look forward to working with INS to develop the next generation of visas to provide greater document security.
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Mr. Chairman, the continued expansion of data assets is critical to protecting U.S. borders and reducing illegal immigration and visa overstay rates. For this reason, we are looking at how we may obtain additional information electronically from other elements of the Department of Justice, particularly the FBI, in order that we may better be able to deny visas to ineligible aliens. We have been working with the FBI toward obtaining direct electronic access for consular officers to information contained in the National Crime Interstate Identification Index (NCIII) database. We understand that the FBI believes this should be done on the basis of new legislation. Therefore, Mr. Chairman, we hope to send you a legislative package addressing this issue in the near future.
Mr. Chairman, I would like to close by thanking you for the opportunity to testify on this important issue. We stand ready to work with you, the Subcommittee and INS on any efforts to reduce the rate of visa overstays while making the process of visiting the U.S. as easy as possible for legitimate visitors.
Mr. SMITH. Mr. Nardi.
STATEMENT OF LOUIS NARDI, DIRECTOR OF INVESTIGATIONS FOR FIELD OPERATIONS, U.S. IMMIGRATION AND NATURALIZATION SERVICE
Mr. NARDI. Good afternoon, Mr. Chairman, Congresswoman Jackson Lee, Congressman Pease. As acting Director of the Investigations Operations at INS, I oversee INS's antismuggling program. I am pleased to have this opportunity to discuss our increasingly successful efforts to combat alien smuggling.
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Clearly, you recognize the vital role INS' antismuggling program plays in restoring integrity to our Nation's immigration laws. You have provided us with the legal tools needed to enhance our capacity to detect, disrupt, and dismantle criminal enterprises that ruthlessly traffic in human beings. I look forward to working with you during the 106th Congress to ensure that even more people, who seek to profit from alien smuggling, pay for their crimes.
In recent years, alien smuggling has grown into a multibillion-dollar-a-year industry that not only undermines the integrity of our immigration laws but also threatens our national security. Many immigrants entering the United States illegally are no longer doing so on their own or as part of the small makeshift group. They are being smuggled in by well-financed, well-equipped international organizations that often engage in other criminal activities such as kidnapping, extortion, torture, child exploitation and rape.
Even with unprecedented increases in INS personnel and resources allocated to strengthen border control, particularly along the southwest border, alien smuggling continues to flourish. As INS expands its control over traditional crossing points, criminal organizations counter with more complex methods and more intricate routes for smuggling aliens into the United States, increasing both the cost and danger to their customers.
Smuggling is not only prospering on the southwest border, it is also on the rise along the northern border. Maritime smuggling from the Caribbean into Florida is also on the rise, and we have recently noticed the reemergence of Chinese boat smuggling on both the East and West Coasts.
Page 145 PREV PAGE TOP OF DOC In response to the growing threat posed by alien-smuggling organizations, INS developed a national antismuggling strategy in 1997. Our strategy is built on a foundation of cooperation and coordination, not just among INS's enforcement components, but also with other Federal, State and local law enforcement agencies, as well as foreign governments. It seeks to strengthen and extend the reach of enforcement to ensure that every aspect of the smuggling operation from source countries to final destinations is broken. Critical to our fight against alien smuggling is recognizing that too many employers are ready and willing to hire undocumented workers. Our strategy focuses on those employers who conspire with alien smugglers.
This strategy, along with the anticipated deployment of the recently funded quick response teams, have incorporated in the recently developed INS interior enforcement strategy. This overarching strategy is designed to maximize the utilization and effectiveness of our resources.
Our antismuggling special agents are increasing their use of the new and expanded investigative authorities provided by Congress in 1996. These include applying asset forfeiture laws, using wiretaps, establishing undercover proprietary businesses, the proceeds which we can use to sustain the investigation, and using the Racketeer-Influenced and Corrupt Organizations statute.
Our strategic approach to antismuggling operations has produced unprecedented results. I would like to share with you a few examples of successes.
Just 4 months ago, we announced the results of Operation Seek and Keep, a year-long multiagency investigation that dismantled the largest, most complex smuggling ring ever encountered by the INS. Organizers grossed more than $200 million. Twenty-four individuals were arrested in the United States, the Bahamas, Central America and the Dominican Republic. The investigation is continuing and we anticipate seizing significant assets of this criminal enterprise. This was the first operation in which we exercised the wiretap authority provided to us by Congress.
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Less than 3 weeks after Seek and Keep, we announced the results of Operation Over the Rainbow II, another year-long multiagency investigation. INS crippled a criminal syndicate that had smuggled as many as 150 Chinese nationals per month into the United States, charging a fee of $47,000 per person. To deliver their human cargo to the United States and earn their exorbitant fee, organizers used staging areas on five continents and attempted to take advantage of the complex law enforcement situation at an Indian reservation that straddled the U.S.-Canadian border. The wiretap used in this investigation resulted in the arrest of 37 individuals in Canada and the United States.
These operations, as well as others I described at length in my written statement, stand as a testament to teamwork and INS's commitment to fight alien smugglers. While many agencies made significant contributions to our success, I want to give special thanks to the FBI for assisting us with our first wiretap cases and to the Justice Department's Terrorism and Violent Crime Section, Organized Crime Racketeering Strike Force Section and the Office of Enforcement Operations for their counsel and support.
The success of many of these operations also depended on the cooperation we received overseas. INS has accomplished this through the permanent assignment of enforcement personnel overseas under the Global Reach initiative.
Clearly, INS has made substantial progress in the fight against alien smuggling. We have been able to do so because you have given us the tools to succeed. More important, however, is the professionalism and dedication of our special agents. Last year, Los Angeles antismuggling special agent John Orrellana made the ultimate sacrifice, giving his life in the performance of his duties.
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I stand ready to work with you to further enhance our ability to combat alien smuggling. Our tools and tactics must be at least as sophisticated as the ones used by those who, through their reckless profiteering, endanger the lives of vulnerable aliens and compromise the integrity of our laws.
Mr. Chairman and members of the subcommittee, thank you again for this opportunity. I am pleased to answer any questions you may have.
Mr. SMITH. Thank you, Mr. Nardi.
[The prepared statement of Mr. Nardi follows:]
PREPARED STATEMENT OF LOUIS NARDI, DIRECTOR OF INVESTIGATIONS FOR FIELD OPERATIONS, U.S. IMMIGRATION AND NATURALIZATION SERVICE
Mr. Chairman, Congresswoman Jackson Lee and members of the Subcommittee, my name is Louis F. Nardi. I am the Director of the Smuggling/Criminal Organizations Branch for the Immigration and Naturalization Service (INS). Thank you for this opportunity to testify on INS' increasingly successful Anti-Smuggling program. INS has responded to a call from Congress and the American people to focus greater attention on alien smugglers who, through their reckless profiteering, endanger the lives of vulnerable aliens and compromise the integrity of our immigration laws.
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The volume and sophistication of alien smuggling organizations has increased dramatically in the past three years and poses a threat not only to our border enforcement activities but to our national security as well. The pressures on our borders have never been greater. The global economy and instability of governments worldwide contribute to an ever-increasing flow of people seeking entry into the United States. However, INS' traditional efforts to stop illegal migration solely at the border will no longer suffice as the organized trade in alien smuggling flourishes.
Alien smuggling organizations operate internationally with near impunity. Public corruption in source and transit countries contributes to a smuggling organization's ability to move large groups of aliens destined for the United States. Increased visa fraud committed by alien smuggling organizations in turn threatens the integrity of our legal immigration process. Smuggling on the Southern border continues to flourish and Northern border smuggling activity is on the rise. Maritime smuggling from the Caribbean into South Florida is increasing, and we have recently noticed the re-emergence of Chinese boat smuggling on both the East and West Coasts.
Previous testimony before the Subcommittee on Immigration and Claims in April 1997 described the growing sophistication of alien smuggling, a business that has blossomed into a multibillion dollar-a-year enterprise. Even with unprecedented increases in INS personnel and resources allocated for the Southwest border, alien smuggling continues to grow and prosper. As the INS continues to expand its control of traditional crossing points on the land borders of the United States, alien smuggling organizations counter with more sophisticated, complex, dangerous, and desperate methods to smuggle aliens into the United States.
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Gone are the days when aliens could pay a smuggler on the southwest border $25 to assist them in entering the United States, with the guarantee that they will be assisted again if caught. With the emergence of international smuggling organizations, INS has seen a dramatic rise in smuggling fees, some as high as $50,000, as well as the creation of highly innovative methods and new smuggling routes. Some organizations have gone so far as to purchase ocean going vessels with the express purpose of transporting human beings. New routes of travel may include transit through multiple countries, utilizing various conveyances and fraudulent or counterfeit documents. Smuggling organizations, recognizing that some employers in the interior of the United States rely heavily on an unauthorized workforce, have responded by providing transportation directly to the work sites.
In the face of a situation that sometimes seems overwhelming, and confronted with undeniable challenges, INS' Anti-Smuggling Special Agents, assigned to District offices and Border Patrol sectors are committed to disrupting the means and methods that facilitate alien smuggling.
INS encounters and combats alien smuggling in the normal course of business at our ports of entry and along our land borders. In response to the growing threat posed by alien smuggling organizations, INS developed a National Anti-Smuggling Strategy, adopted in November 1997. This strategy, along with the anticipated deployment of the recently funded Quick Response Teams, has been incorporated in the INS Interior Enforcement Strategy. This overarching strategy is designed to maximize the utilization and effectiveness of our resources, complement its border control strategy and target these factors which most contribute to the presence of illegal aliens in the interior of the United States.
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INS faces a smuggling threat at both our southern and northern borders, at our land border ports and airports, and on the high seas. However, the greatest threat continues to be along the Southwest border. The reasons are as follows:
The largest number of illegal aliens that are assisted by smuggling organizations cross the Southern border;
As countries standardize and improve travel documents, the Southwest border poses the greatest potential criminal alien entry threat due to the fact that aliens can cross without documents;
The large number of organizations that operate in the area; and
INS intelligence has confirmed that the majority of illegal aliens with prearranged employment have entered the country by crossing the Southern border.
The strategy involves overseas districts and domestic district and sector offices engaging in a Service-wide, integrated enforcement effort to identify, dismantle or disrupt alien smuggling organizations. INS special agents focus enforcement efforts on targeting complex, sophisticated alien smuggling organizations that are international in scope. These organizations, based in source countries, transit countries or in the United States, may use multiple organizations, or smuggling ''subcontractors'', to further insulate them from identification and prosecution by law enforcement agencies. INS' Anti-Smuggling strategy adopts a linear enforcement concept, involving all enforcement components of INS, and is designed to disrupt alien smuggling activities at all levels of operation. The strategy is crafted to be flexible and seeks the best mix of enforcement responses to changing situations.
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Anti-Smuggling personnel utilize all available resources, including new or expanded investigative authorities provided by Congress in 1996. In addition to conferring expanded investigative authority to INS, the 1996 law significantly enhanced sentencing guidelines for individuals convicted of alien smuggling-related offenses. INS has begun to use a wide range of investigative techniques to combat alien smuggling. They include: application of expanded asset forfeiture laws; use of wire intercepts; establishment of an undercover proprietary business, which permits INS to establish a business enterprise for the purpose of using proceeds to sustain the investigation; and use of the Racketeer Influenced and Corrupt Organizations (RICO) statute which now designates alien smuggling and immigration-related visa fraud as RICO predicate offenses. Recognizing that some of these investigative authorities involve intrusive methods, the INS has adopted a phased-in implementation plan for their use. As part of this plan, the INS has implemented a Memorandum of Understanding with the Federal Bureau of Investigation (FBI) regarding joint alien smuggling investigations.
The INS has been successful in its prudent use of the authority Congress has given to us. To date, INS has initiated two smuggling investigations in which wire intercepts have been utilized. INS has also initiated criminal investigations, predicated upon alien smuggling violations, in which a proprietary was utilized as a significant aspect of the undercover operation. We continue to seize property, money and other assets during the course of alien smuggling investigations. We have successfully begun the process of developing the non-traditional investigative and technical expertise to investigate criminal enterprises. I will provide highlights of cases which employed these methods later in my testimony.
Another enforcement tool provided by Congress is Quick Response Teams (QRTs) In 1999, Congress authorized 200 Investigations and Detention and Deportation positions to create these teams. Designed to respond to requests for assistance from state and local law enforcement agencies, the QRTs will be comprised of special agents, detention enforcement officers, deportation officers and supervisors. QRTs will be deployed in locations with a high concentration of illegal aliens, in alien smuggling transportation corridors, and areas which in recent years have experienced a substantial increase in illegal migration. These teams will augment INS' efforts by identifying and disrupting alien smuggling transportation routes and by providing information on final destination and work site locations.
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Having set the stage for INS' approach to investigating alien smuggling cases, I would like to take a few moments to share with the Subcommittee a few examples of successful INS anti-smuggling efforts. The cases I will describe are a direct result of INS' development of a comprehensive strategy. Working in close coordination with the FBI, U.S. Coast Guard, and other law enforcement agencies, we have achieved some major success in the fight against those who traffic in human beings.
Operation Seek and Keep
Just four months ago, we announced the results of Operation Seek and Keep, a year-long, multi-agency investigation that broke the largest, most complex alien smuggling ring INS has ever encountered. This criminal enterprise, which had been in operation for at least three years, was smuggling as many as 300 Indian nationals into the United States every month, at a cost of more than $20,000 per alien. We estimate that more than 10,000 illegal aliens were brought into the United States in the last three years by this organization, with organizers grossing more than $200 million. After enjoying years of enormous profits, derived from human misery and desperation, the organization and its members are now out of business.
Twenty-four (24) individuals have been arrested in the United States, Bahamas, Central America and the Dominican Republic. Defendants have been charged with alien smuggling, conspiracy and money laundering. It now appears that the majority, if not all of the defendants, will plead guilty, including the kingpin, Nitin Shetty, also known as Nick Diaz. Operation Seek and Keep represented the first case in which INS used its wiretap authority derived from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Additionally, coordinating extensive overseas locate and arrest activity was made possible by the permanent INS enforcement officers assigned overseas under our ''Global Reach'' initiative.
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Successful criminal investigations are built on a foundation of coordination and cooperation. While INS initiated and led the Operation Seek and Keep investigation, our efforts could not have been as successful without the active support of the FBI, U.S. Attorney's Office, Internal Revenue Service, U.S. Postal Service, Customs Service, and the Department of State. Equally integral to our success was the assistance provided by government officials from more than a half dozen other nations through INS' overseas offices.
I must take this opportunity to thank the FBI for its assistance in providing INS with the technical and administrative expertise on the wiretap used in this case and in Operation Over the Rainbow II, which I will discuss momentarily. In addition, the FBI provided training for other INS special agents and supervisors in the technical and administrative aspects of wire intercepts, at no cost to INS. From the success generated through the cooperation between the FBI and INS, discussions have begun regarding the exchange of senior special agents in order to coordinate and monitor joint investigations between the FBI and INS, strengthening our ability to successfully investigate alien smuggling criminal enterprises.
Operation Over the Rainbow II
Just three weeks after announcing its accomplishments in Operation Seek and Keep, the INS announced the results of another year-long, multi-agency investigation known as Operation Over the Rainbow II. This alien smuggling investigation, initiated by our Buffalo District Office, crippled a criminal syndicate responsible for smuggling as many as 150 Chinese nationals per month into the United States across our Northern border.
Page 154 PREV PAGE TOP OF DOC This smuggling operation, which spanned five continents, was immensely profitable. We estimate that these criminals, who charged a fee of $47,000 per person, earned as much as $169 million over the past two years. The smugglers were able to set their fee at such an exorbitant level by exploiting the desperation of aliens wanting to enter the United States. To deliver their human cargo to the United States and collect the excessive fee, the organization attempted to take advantage of the complex law enforcement situation at the United States-Canadian Border.
This investigation revealed that the aliens were smuggled into Canada using fraudulent documents. The aliens were then transported to New York City via the St. Regis Mohawk Territory at Akwesasne, an Indian reservation located on both sides of the United States-Canadian Border. The smugglers sought to exploit the fact that the United States, Canada, New York State, Ontario, Quebec, and tribal governments all have some jurisdiction over the 28,000-acre territory. And for a time, they succeeded.
In testimony previously provided to the Subcommittee in 1997, INS described the emergence of the Akwesasne Reservation as a growing alien smuggling threat. After an extensive investigative effort, we were able to end their success by bringing all the pertinent law enforcement agencies together as a single investigative force. In addition to INS, Royal Canadian Mounted Police, and Toronto Police Servicethe three lead agenciesthe investigation involved the FBI, Internal Revenue Service, New York State Police, the U.S. Attorney's Office for the Northern, Eastern, and Southern Districts of New York, and the St. Regis Mohawk Tribal Police.
The closed nature of life on the reservation created difficulties in penetrating criminal elements with traditional investigative methods. However, in July 1998, the Department of Justice authorized a wiretap on the targets of the investigation. The information obtained from this wiretap led to the indictment of 47 members of the Chinese alien smuggling ring, including members of the Akwesasne tribe. To date, a total of 37 arrests have been made in Canada and the United States. All defendants have been charged with alien smuggling and the majority of defendants are cooperating with the United States Attorney and INS to identify additional targets.
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The investigation of a group of individuals responsible for smuggling hearing and speech impaired aliens into the United States, known as Operation Cook, was initiated by our New York District Office in 1997. The aliens, smuggled into the United States across the Southern border from Mexico, were forced to sell trinkets on the streets of New York City and surrounding boroughs and were kept against their will in appalling conditions. In addition, the aliens were beaten or otherwise tortured if they did not meet their daily quota of sales.
Acting in response to leads furnished by the New York City Police Department, the INS was able to identify and charge 20 individuals for their involvement. Through the outstanding efforts of our Mexico City District Office, the Mexican Government provided significant information and assistance to INS. Of the 20 individuals charged, 18 were apprehended and convicted on various criminal counts. Including alien smuggling, conspiracy, aiding and abetting, interference with commerce with threats or violence, and involuntary servitude. Through enhanced sentencing guidelines, convictions for these violations resulted in prison sentences ranging from one to 14 years. The two individuals who fled the United States to avoid prosecution in this country remain at-large in Mexico.
Operation I25 Confederation
This successful investigation of Atlantic Finishing, a Georgia-based apparel manufacturer, was the result of a two year probe conducted by Border Patrol Anti-Smuggling Special Agents in Las Cruces, New Mexico and the Atlanta District Office. This case began on the Southern border in December 1996, with the arrest of a smuggler driving a van load of illegal aliens. Over a three year period, identified subjects of this investigation smuggled several groups of illegal aliens from Central Mexico through New Mexico into Georgia. The smugglers harbored the aliens in private homes and assisted them in obtaining employment, often through the use of fraudulent documents.
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INS expanded the investigation to target the employer, Atlantic Finishing, and its president and owner, Fred Parrish, for his involvement in the recruiting of illegal aliens to work in his company. Parrish enlisted the services of a smuggling organization to supply him with an easily obtained, exploitable work force. Parrish and other company employees falsified the immigration forms used to document an individual's identity and employment eligibility, allowing the illegal aliens to gain unlawful employment.
The agents' investigation culminated last April when the company president and 10 other defendants pled guilty to involvement in an interstate smuggling ring. Parrish was sentenced to a 10-month jail term and fined $10,000. Atlantic Finishing was fined a total of $84,000.
INS has long maintained that there is a nexus between alien smuggling and illegal employment. However, this was the first case of its kind prosecuted by INS which followed the smuggling act to its completion to the work site and held the employer accountable for his criminal misconduct. This case serves as the model for INS' strategy to initiate, investigate and prosecute smuggling organizations at all levels of operation, including final destinations and work sites.
Operation Xing Da
A joint investigation between INS and the U.S. Coast Guard, Operation Xing Da, began in late 1995 and concluded early last year. This case involved a smuggling organization, based in New York City, that was responsible for bringing Chinese nationals into the United States by boat. INS agents working undercover infiltrated the organization. The coordinated effort between the Coast Guard and INS from the early stages of the investigation led to the boarding of the cargo ship, the Xing Da, in October, 1996, approximately 200 miles northwest from Bermuda resulting in the discovery of 109 Chinese nationals.
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This investigation led to the arrest and conviction of seven individuals responsible for the recruiting of individuals in China and for making the arrangements to have the vessel off- load near Boston, Massachusetts. These individuals received sentences ranging from three to 12 years for alien smuggling violations. These significant sentences were unheard of a few years ago.
Operation Eastern Star
Operation Eastern Star was an INS international investigation into the George Tajarian Organization, which had been the focus of several INS investigations but was able to elude prosecution for many years. Tajarian's organization specialized in smuggling individuals from the Middle East, particularly Iraq, Jordan, Syria, and the Palestinian Territory across the Southern border. Tajarian was arrested in Miami after being expelled by Panamanian immigration officials, and sentenced to 13 years in prison for his smuggling activity.
The conviction of Tajarian brought to a close nearly 20 years of alien smuggling by his organization. The successful prosecution of this case was the direct result of a combined effort of INS domestic and overseas offices, the FBI, and the Department of Justice, Office of International Affairs. Equal praise should also be given to the government of Panama for quickly expelling Tajarian to the Unitd States. Absent a well- coordinated approach, Tajarian would still be operating today.
Page 158 PREV PAGE TOP OF DOC As you can see from the above chart, INS' anti-smuggling resources have remained relatively unchanged over the past three years. INS resources include supervisory special agents, special agents and support personnel.
Despite little change in dedicated resources, INS continues to improve its efficiency in identifying and prosecuting alien smugglers as indicated below.
Cases presented for prosecution increased by 19 percent from FY 1997 to FY 1998. Although resources decreased almost 4 percent in FY'99, it is projected that cases presented for prosecution this fiscal year will increase by 30 percent.
As I mentioned previously, in 1996 Congress enhanced federal sentencing guidelines for alien smuggling offenses.
The above chart demonstrates that sentences imposed for alien smuggling offenses nearly doubled from FY 1997 to FY 1998. INS expects this trend to continue as we target the most serious violators.
Given a clear criminal investigative mandate and dedicated resources, ensuring cooperation between INS overseas and domestic offices, other law enforcement agencies and foreign governments, and comprehensive investigative authorities, INS anti smuggling agents have clearly demonstrated their professionalism and dedication.
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I would like to take this opportunity to thank the Terrorism and Violent Crime Section, the Organized Crime Racketeering Strike Force Section and the Office of Enforcement Operations of the Department of Justice for their counsel, assistance, support and approval of significant undercover operations conducted by INS anti-smuggling special agents.
Mr. Chairman and members of the Subcommittee, I thank you again for this opportunity and am pleased to answer any questions you may have.
Mr. SMITH. Mr. Brownfield from the State Department is not here so we will go to Ms. Dale.
STATEMENT OF AMY DALE, ADMINISTRATOR OF DETENTION SERVICES, FEDERAL BUREAU OF PRISONS
Ms. DALE. Mr. Chairman and members of the subcommittee, I appreciate the opportunity to appear before you today to provide information regarding non-U.S. citizens in the Federal Bureau of Prisons.
At the end of fiscal year 1998, there were approximately 33,240 non-U.S. citizens in Bureau custody. From 1992 to 1998, the number of non-U.S. citizens in the Bureau's population increased by 116 percent. This population is growing due, in part, to increased law enforcement activities along the Nation's southern border.
However, since the Bureau's U.S. citizen population is also growing by unprecedented numbers, the percentage of non-U.S. citizens in the population has remained relatively stable over the recent years. Citizenship is the only immigration-related information that the Bureau maintains on all prisoners in our system.
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The Bureau does not have information on the removal status or immigration status of all non-U.S. citizens in our population. A non-U.S. citizen's eligibility for deportation and immigration status are determined solely by the Immigration and Naturalization Service.
However, the Bureau does work with the INS and the Executive Office for Immigration Review to facilitate the Federal Institutional Hearing Program. As part of the IHP, on any given day we know the number of non-U.S. citizens in our custody who have completed the IHP process. Currently there are approximately 4,800 non-U.S. citizens in Bureau custody who are being processed for IHP hearings and approximately 6,360 non-U.S. citizens in Bureau custody who have completed hearings and have been issued deportation orders. However, we do not maintain cumulative totals over a period of time of the numbers of non-U.S. citizens who have received deportation orders while in the Bureau's custody and then were released to INS. These numbers are tracked by INS.
I understand the subcommittee is interested in statistics regarding the number of non-U.S. citizens the Bureau has housed over the past few years and the numbers we project we will house in the near future. While the Bureau has developed a model to make projections of the Federal inmate population for planning purposes, these projections do not distinguish the citizenship status of the projected population. Therefore, we will not be able to provide any projections that differentiate between citizens and non-U.S. citizens.
In my written testimony I have included two charts with specific details on the following statistics. At the end of fiscal year 1998, there were 15,400 Mexicans in Bureau custody. This represented 46 percent of the non-U.S. citizen population. From fiscal year 1992 to 1998, the number of Mexicans in the Bureau's custody increased 287 percent.
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At the end of fiscal year 1998, 51 percent of the non-U.S. citizens, or 16,620 inmates, were serving sentences for drug offenses. From fiscal year 1992 to fiscal year 1998, the number of non-U.S. citizens serving sentences for drug convictions increased by 77 percent. However, among all non-U.S. citizens serving sentences for Federal offenses, the percentage convicted for drug offenses decreased. This decrease is in large part explained by the significant increase in non-U.S. citizens convicted of immigration offenses.
From fiscal year 1992 to fiscal year 1998 the number of non-U.S. citizens serving time for immigration offenses increased from 800 to 6,800. This represents a 320 percent increase in the percentage of non-U.S. citizens with immigration convictions. At the end of fiscal year 1998, non-U.S. citizens were serving an average sentence length of 90 months, down from 1992 when the average sentence length for non-U.S. citizens was 97 months. This is due in large part to the increase in the percentage of non-U.S. citizens convicted of immigration offenses. We are still in the process of compiling the data you requested regarding numbers of non-U.S. citizens released per month over the past year. We will provide that information to the subcommittee as soon as it is available.
The cost of incarcerating non-U.S. citizens is virtually the same as the cost of incarcerating U.S. citizens. In 1998, the average per capita cost at a low-security institution in the Bureau was $52.34 a day. The estimated yearly cost of housing this population was $635 million.
In general, non-U.S. citizens serving Federal sentences are offered the same programs and services as U.S. citizens. One difference regarding non-U.S. citizens is that those with a deportation order or a detainer are deemed to be escape risks and consequently are not placed in minimum security camps or halfway house programs located in the community.
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Mr. Chairman, this concludes my formal statement. I would be pleased to answer any questions you or members of the subcommittee might have.
Mr. SMITH. Thank you, Ms. Dale.
[The prepared statement of Ms. Dale follows:]
PREPARED STATEMENT OF AMY DALE, ADMINISTRATOR OF DETENTION SERVICES, FEDERAL BUREAU OF PRISONS
Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity to appear before you today to provide information regarding non-U.S. citizens in the Federal Bureau of Prisons (Bureau).
At the end of FY 1998, there were approximately 33,250 non-U.S. citizens in Bureau custody. This figure represented 27.6 percent of the total Bureau population. From 1992 to 1998, the number of non-U.S. citizens in the Bureau's population increased by 116 percent. This population is growing, due in part to increased law enforcement activities along the nation's southern border. However, since the Bureau's U.S. citizen population is also growing by unprecedented numbers, the percentage of non-U.S. citizens in the population has remained relatively stable over the past few years.
Citizenship is the only immigration-related information that the Bureau maintains on all prisoners in our system. This information is drawn from the Presentence Investigation Report, which is provided to the Bureau by the U.S. Probation Office at the time of a sentenced inmate's designation to the Bureau's custody.
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The Bureau does not have information on the removal status or immigration status of all non-U.S. citizens in our population, as a non-U.S. citizen's eligibility for deportation and immigration status are determined solely by the Immigration and Naturalization Service (INS).
The Bureau does work with the INS and the Executive Office for Immigration Review to facilitate the Federal Institutional Hearing Program (IHP). As part of the IHP, on any given day, we know the number of non-U.S. citizens in our custody who have completed the IHP process. Currently, there are approximately 4,820 non-U.S. citizens in Bureau custody who are being processed for IHP hearings, and approximately 6,360 non-U.S. citizens in Bureau custody who have completed hearings and have been issued deportation orders. However, we do not maintain cumulative totals over a period of time of the numbers of non-U.S. citizens who have received deportation orders while in the Bureau's custody and were released to INS. These numbers are tracked by INS.
CHARACTERISTICS OF CURRENT NON-U.S. CITIZEN POPULATION
I understand the Subcommittee is interested in statistics regarding the number of non-U.S. citizens the Bureau has housed over the past few years and the numbers we project we will house in the future. While the Bureau has developed procedures (a model) to make projections of the federal inmate population for planning purposes, these projections do not distinguish the citizenship status of the projected population. The available method for projecting the size of any subpopulation within the Bureau is based on offense category, such as drug trafficking or bank robbery, and prison term typical of the respective offense. The Bureau's model does not currently differentiate between citizens and non-citizens.
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At the end of FY 1998, there were 15,400 Mexicans in Bureau custody, which represented 46 percent of the non-U.S. citizen population (see Attachment A). In FY 1992, there were only 3,870 Mexicans in the custody of the Bureau. From FY 1992 until FY 1998 the number of Mexicans in the Bureau's custody increased 287 percent.
At the end of FY 1998, the next largest category by citizenship was Colombians, with 4,400 in our custody, which represented 13 percent of the non-U.S. citizen population.
At the end of FY 1998, 51 percent of the non-U.S. citizens, or 16,620 inmates, were serving sentences for drug offenses (see Attachment B). From FY 1992 to FY 1998, the number of non-U.S. citizens serving sentences for drug convictions increased by 77 percent. However, among all non-U.S. citizens convicted of federal offenses, the percent convicted for drug offenses decreased. This decrease is in large part explained by the significant increase in non-U.S. citizens convicted of immigration offenses.
At the end of FY 1998, 21 percent, or 6,849 non-U.S. citizens, were serving sentences for immigration offenses. From FY 1992 to FY 1998, the number of non-U.S. citizens serving time for immigration offenses increased from 800 to over 6,800. This represents a 320 percent increase in the percentage of non-U.S. citizens with immigration convictions.
At the end of FY 1998, non-U.S. citizens were serving an average sentence length of 90 months, a decrease from FY 1992, when the average sentence length for non-U.S. citizens was 97 months. This also is due in large part to the increase in the percentage of non-U.S. citizens convicted of immigration offenses.
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We are still in the process of compiling the data you requested regarding numbers of non-U.S. citizens released per month over the past year. We will provide that information to the Subcommittee as soon as it is available. We do not have the data you requested on the number released to INS custody and the number released to INS with orders of deportation.
COSTS OF INCARCERATION
In general, the costs of incarcerating non-U.S. citizens are no different from the costs of incarcerating U.S. citizens. In 1998, the average per-capita cost at a low-security institution in the Bureau was $52.34 per day. With an average of 33,240 non-U.S. citizens in custody in 1998, and because the vast majority were low secruity, the estimated yearly cost of housing this population was $635 million.
Upon commitment to the Bureau, a non-U.S. citizen is treated virtually the same as a U.S. citizen. If space is available at one of the 15 institutions with an IHP hearing site, non-U.S. citizens entering the Bureau are designated to one of these sites. If the beds at the IHP hearing sites are filled, non-U.S. citizens are designated to an institution that is commensurate with their security and other program or management needs. After the IHP is completed, a non-U.S. citizen is transferred to one of the 28 IHP Release sites.
Currently, once a non-U.S. citizen is at his or her designated institution, other than transfers for IHP purposes, the Bureau's policies and procedures apply equally to citizens and non-citizens alike. In general, non-U.S. citizens serving federal sentences are offered the same programs and services as U.S. citizens. Those with a deportation order or a detainer are deemed to be escape risks and consequently are not placed in minimun-security camps or halfway house programs located in the community.
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Mr. Chairman, this concludes my formal statement. I would be pleased to answer any questions you or other Members of the Subcommittee might have.
Mr. SMITH. I am going to yield my time to Mr. Pease who has been a patient member of the subcommittee today.
Mr. PEASE. Thank you, Mr. Chairman. I guess I begin with a self-serving statement, but it is to set up a question that I want to ask you, Mr. Bromwich.
My staff tells me that I am much too trusting, that I always look for the best in people, that I believe what they tell me, and that I always think that things are going to be better. I have sat in this subcommittee now for more than 2 years expecting things are going to get better and hoping that they will and believing the best in people and hearing the good things that INS and DOJ says that they are doing, and listening to you and your counterparts who point out all of the problems that I think are real.
You and your counterparts have done an excellent job, in my view, of telling us the things that are wrong. What I am having trouble understanding is why? And I don't know if that is beyond the realm of the work that you do if you can give us your assessment of whether it is a lack of resources, despite the incredible increase in resources that we have given to INS over the last few years, whether it is a personnel problem, a structural problem, staffing problem? A problem of will? Do you have any feel?
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Mr. BROMWICH. I would like to give you a more narrow-gauged answer on this issue, which I think we all agree is a terribly important issue; that is, what is the immigration service doing to address the very real problem that is presented by having close to 50 percent of the illegal alien population being made up of visa overstayers. I think my prepared statement and my oral statement make it clear that we do not believe that the INS is doing all of what it needs to do in order to address that problem.
Mr. PEASE. And you made that clear.
Mr. BROMWICH. With all due respect to Mr. Cronin and the other INS witnesses, I have heard nothing today or seen nothing in the new interior enforcement strategy which causes me to change my view. I don't think that there is on the table right now a viable enforcement strategy to deal with the very significant problem of visa overstays.
Mr. PEASE. I appreciate that. Do you have any assessment or is it beyond your purview as to why that is the case?
Mr. BROMWICH. We certainly do a lot of work in INS and I think that our work is best seen in the individual products we put out. I don't feel terribly comfortable giving you broad-ranging evaluations that are not based on specific pieces of evidence. So I am happy to respond to any specific questions or concerns you have, particularly about specific programs we have examined. I understand your frustration certainly, but I think it would be beyond the scope for me to just engage in a general dialogue about the Immigration and Naturalization Service.
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Mr. PEASE. That is fair and very professional, as you have always been very professional with us. I guess my frustration is finally showing.
Mr. Chairman, I have no further questions. I yield my time to you.
Mr. SMITH. I am going to yield the balance of my time to Ms. Jackson Lee.
We have a vote, but there is going to be 10 minutes of debate between this vote and the next vote, and I am going to return for those 10 minutes, so I can ask my questions then. So as soon as Ms. Jackson Lee asks her questions, we will recess and then resume.
Ms. JACKSON LEE. You will recess for 10 or 15 minutes, or you will be back in how many minutes.
Mr. SMITH. I am going to vote and come back during the 10-minute debate prior to the next vote.
Ms. JACKSON LEE. So you think that you will be back in session in about 10 minutes?
Mr. SMITH. Correct.
Ms. JACKSON LEE. Let me, first of all, acknowledge Mr. Richard Crabbe of the INS Houston district office. It looks like he is very busy. Some of his staff wondered what time we were going to meet. I wanted to make sure that I said hello to you. We are having a hearing that hopefully will be helpful for the many things that you have to do.
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He is from the Houston district, sir. We thank him for his work.
Mr. Bromwich, I noticed that you had indicated the question of overstays, that Border Patrols or the border emphasis doesn't get to the visa overstays, and I thank you for your report.
Mr. BROMWICH. Thank you.
Ms. JACKSON LEE. Give me some instruction, if you would, on how this could be corrected, more resources, altering the study?
Mr. BROMWICH. It is, to be sure, a matter of resources, but it is also in part the need to have reliable data on which to base an enforcement strategy. Much of our inspection report demonstrated, and INS doesn't dispute this, that they don't have the available data in order to develop such a strategy. And regrettably even though our inspection was issued in September 1997 and even though there were very specific recommendations that were issued at that time, there really hasn't been adequate corrective action taken to satisfy us that significant progress has been made in the direction of developing a coherent interior enforcement strategy focusing on visa overstays.
Ms. JACKSON LEE. And obtaining the data that they need?
Mr. BROMWICH. Correct.
Page 170 PREV PAGE TOP OF DOC Mr. SMITH. Thank you. We will recess for 15 minutes and then resume.
Mr. SMITH. Mr. Bromwich, let me direct my first question to you, if I may.
On page 1 of your testimony you talk about one of the shortcomings of our policy to review the number of visa overstayers is failure to mine rich data developed by INS enforcement operations. Why is it that the INS fails to make effective use of that database if it is literally right there and a gold mine?
Mr. BROMWICH. I am not sure that I have a good answer to that, Mr. Chairman.
My understanding is that the information does exist, and INS acknowledges that it exists. I assume that it is a fairly labor-intensive and perhaps technology-intensive operation to tap that data, but I am not the right person to ask in terms of explaining to you why it is not being done more substantially.
Mr. SMITH. Why has the INS failed to carry out your recommendations? Is it a lack of resources, a lack of desire, is it a combination or is it mismanagement?
Page 171 PREV PAGE TOP OF DOC Mr. BROMWICH. Well, in terms of a number of the recommendations, there are corrective actions that require reports back to us, and regrettably we have not had a continuing flow of information to us which would lead us to conclude whether they are doing very much on this.
I think I mentioned in my testimony that we have informal contacts from INS as to a couple of the issues. That is not good enough. The inspection report that we issued requires a continuing stream of responses from INS until we are satisfied that the problems have been adequately addressed, and that has not happened.
Mr. SMITH. Thank you, Mr. Bromwich. Let me add my agreement with the statement by Mr. Pease earlier, the IG and you have been straight shooters, and we appreciate your being so honest, candid and direct in regard to your investigations.
Mr. BROMWICH. Thank you.
Mr. SMITH. Mr. Cronin, let me compliment you, I do appreciate what I perceive is a good-faith effort on the part of the INS to test some of the options that we have on the entry/exit. You recently briefed my staff on that. I think you are going in the right direction, and that is appreciated.
Let me ask you the first question I asked Mr. Bromwich which is, why isn't the INS making better use of the databases that are already available?
Mr. CRONIN. I think there are two issues here, Mr. Chairman.
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To my understanding, the first is that not all of the enforcement data, and especially the interior enforcement data, is contained in automated databases at this point. A lot of the apprehension reports are still basically hand-done documents. Some of the data makes it its way into the INS workload reporting system, but a lot of the critical overstay data does not make it into the system in an automated fashion.
We are using automated capture of enforcement data at this point principally in support of border operations, and we are planning to expand that into the interior enforcement operations, which will give us a potential source of better data in terms of tracking overstays.
Basically, also, Mr. Bromwich accurately reported, I think, the status of the response to recommendation number 3. He was advised by our Office of Policy and Planning that there have been, again informally, first-phase or first-step actions done in terms of the analysis of overstay data, but there are still discussions going on about exactly what data is going to be required to inform or flesh out the interior enforcement strategy.
In terms of the entire inspection report and at least two aspects which are directly under my supervision, we have been working diligently to meet the requirements of the report. We are aware that we owe some additional response to the Office of the Inspector General, and that will be forthcoming.
Mr. SMITH. Mr. Cronin, what can we do better to entice the airlines to cooperate with us and give us departure and arrival information, or what should we do to require them to do so, since I think that is a weakness, if not of the INS, then that of the airlines themselves, to cooperate with us and enforce the law?
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Mr. CRONIN. There are several ways to answer that. Let me make clear first of all that we don't need the airlines to implement the automated I94 system. The system is designed in such a way that once the hardware is fully deployed, we can generate electronic data just by the action of the inspector on the primary inspection line. It is far more efficient and the current iteration of the system relies on the cooperation of the airlines.
Mr. SMITH. Is the INS, do you believe, enforcing the law in regard to that information that we need from the airlines?
Mr. CRONIN. The law requires that the airlines provide a passenger manifest to INS.
Mr. SMITH. What is the INS doing to make sure that that information is delivered? The IG has found a lack of follow-through on the part of the INS.
Mr. CRONIN. There are several steps that have been taken, Congressman. We have drafted and are preparing to issue rulemaking on imposing fines for failure to provide departure I94s.
We do have a plan and time line to institute compliance activities at airports. That was mentioned again in the inspection report. We have embraced that recommendation, and once we have our system deployed and are prepared to begin the system generally, we are going to do compliance of the airline provision of departure data, on-site compliance.
Page 174 PREV PAGE TOP OF DOC Mr. SMITH. Thank you, Mr. Cronin.
Ms. Hamilton, a lot has been said about the necessity of developing a joint plan between the State Department and the INS in regard to the data that would be necessary to track visa overstayers. Why hasn't that plan been developed?
I remember asking this question last year and the year before that as well.
Ms. HAMILTON. Part of it is the development of INS's automated and I94 system itself. We do have in discussions that we have with both INS and Customs the general outline of a plan to exchange more data and really what needs to happen
Mr. SMITH. If you have the general outline of a plan, when are we going to see the actual plan implemented?
Ms. HAMILTON. We have to see when all of the systems are technically able to connect to a central database.
Mr. SMITH. So you are waiting for the INS?
Ms. HAMILTON. To some extent. They wait for us sometimes, too. It is not totally a one-way street.
Mr. SMITH. So you are taking part of the blame?
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Ms. HAMILTON. We are willing to take part of the blame.
Mr. SMITH. You all have a tough job, and that goes for all government witnesses here, but the State Department processes millions of people every year; and just a small fraction are visa overstayers, but that small fraction turns out to be a large fraction of the problem here with 40 percent of our illegal aliens now being visa overstayers.
Should we increase the visa refusal rate in those countries that have bad records? Should that be part of the solution? In other words, when you are on notice that a country has an unusual number of individuals who don't return home, shouldn't we be stricter?
Ms. HAMILTON. I think if we did have notice that there was a large overstay rate for a particular country, yes, I think we would have to be more careful. On the other side, we sometimes refuse visas to people that should be issued and what we would really like to do is to be able to simply be able to make better decisions.
I am proud of the decisions our people make, but with better information we could make improvements.
Mr. SMITH. Ms. Hamilton, you have been nice enough to say that you deserve part of the blame, and now you are saying that you need to make improvements. I hope that we will see less blame and more improvements the next time you testify.
Ms. HAMILTON. I hope so, too.
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Mr. SMITH. Mr. Nardi, in the 1996 immigration law we gave INS authority for wiretaps for undercover investigations, for more penalties and for exercising the ability of the government to prosecute individuals under RICO. It is my impression that not enough advantage of those provisions in the 1996 law has been taken by the government. Why is that?
Mr. NARDI. Well, I respectfully disagree, Mr. Chairman. I believe INS's Investigations Division in particular has been truly prudent. These are very intrusive methods that require extensive training. INS has gone about this in a very structured way, utilizing the FBI, the Office of Enforcement Operations at the department and others to make sure that we do this correctly.
As I stated previously, these are intrusive methods and we have used them very, very selectively when we have chosen to use them.
Mr. SMITH. Let me point out quickly, the law has been in effect since 1996. This is 1999. There is a limit to the due deliberation that might be used in training individuals and implementing this law. How many smuggling cases have been prosecuted under RICO to date?
Mr. NARDI. I will get you that figure.
[The information referred to follows:]
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How many RICO prosecution cases has INS been involved in?
Since October 1, 1997 to the present (FY98 and FY99), the Investigations Division of the Immigration and Naturalization Service has been involved in 8 Racketeer Influenced and Corrupt Organization (RICO)-related cases. The RICO offense prosecuted by the United States Attorneys' Office is indicated in parenthesis.
FY98 (October 1, 1997 through September 30, 1998):
Baltimore District1 case (mail fraud)
Houston District1 case (money laundering)
Miami District2 cases (money laundering)
New York District2 cases (use/investing racketeering proceeds; witness tampering)
FY99 (October 1, 1998 to present):
Houston District1 case (money laundering)
New York District1 case (drug trafficking)
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Mr. SMITH. Is it more or less than 6?
Mr. NARDI. I know that we have used the RICO statute for many cases.
Mr. SMITH. I am glad to hear that it has been used effectively.
I am out of time. I am going to recognize the gentlewoman from Texas. Mr. Nardi, we appreciate your testimony today. And you, like Mr. Bromwich, have a reputation for being a straight-shooter at the INS, and we appreciate that, too.
Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me ask Ms. Hamilton, in answer to the question that you gave Congressman Smith about the issues of visa overstays and if there is a high number, there maybe some thought given to making a note of that to a particular country.
Is that an internal mechanism that you are suggesting? You are not suggesting that we legislate that, and you would be very cautious in making those categorizations without accurate data?
Ms. HAMILTON. Yes, of course. We want accurate data. And the other thing, visa decisions are individual decisions, and we interview each applicant on their own merits and we avoid having stereotypes and we avoid having profiles and try to make every decision based on its own merit.
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So when we have information that the overstay rate from a particular country is high, there are exceptions and there are applicants that qualify from those countries as well.
Ms. JACKSON LEE. I appreciate that. I thought it was important to make that clear, because I do think the State Department does its best to make a very detailed case-by-case analysis.
Mr. Cronin, in response to my question to Mr. Bromwich and his report, let me ask, do we have a problem of technology, the data gathering in order to respond to, I think, a very valid concern that there has been seemingly not as much activity by INS as we would like on visa overstays.
Are you in the process of changing your data collection?
When we talk about distribution of resources, do we need to focus on a technology system that is planned and not yet in place? Do we need to move it along faster?
It seems like this is something that is correctable or at least solvable. It is information gathering and then tracking those individuals. Can you help me? And I do appreciate Ms. Hamilton's offer of greater coordination between the State Department and INS, but can you help me with what the problem is?
Mr. CRONIN. NIIS was developed in 1993. Although it is an automated database of arrival and departure data, it relies heavily at several points in the process on the manual processing of data, getting the data from the ports of entry to the contractor who loads the data, the contractor loads the data in part manually and in part through scanning. The number of entries into the system has doubled over the past 10 years, and basically we are seeing tremendous instability in the data which has contributed to the inability to do accurate overstay rates by country which is the principal cause of that.
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We are working diligently to do the fixes to that system to gather accurate data and to ensure that our office of statistics can do accurate overstay rates. But I think the solution is to convert to an automated system, to a purely electronic system. The system that we have designed and piloted and are now deploying would rely basically on a mag stripe on I94, loaded electronically at the port of entry immediately into the database, and it is a new database designed to house far larger amounts of information.
So we are pursuing the technology solution to the issue. The fact remains that the existing database, NIIS, as I say, continues to be problematic, and we have been working quite diligently to fix that system.
Ms. JACKSON LEE. When you say that you are looking to fix that with a design, is the design internally or are you seeking consultant help in designing a response? And let me appreciate the difference in which you speak about a 1983 data collecting system, but Y2K is around the corner in more ways than one.
Let me at least give you some comfort that I would like you to get out of 1983 and into 1999, but I would really like you to get into 2001. Are you designing it or do you have research going on? What is happening with it?
Mr. CRONIN. We have contractor support in the design of the system. It is a collaborative effort between program personnel at INS and personnel responsible for procedures at the port of entry, who are responsible for use of the data, and our IT people and contractors.
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Ms. JACKSON LEE. So you have some people in place now that are trying to design a response to the 1983 system; is that correct?
Mr. CRONIN. We are trying to repair the 1983 system and designing the new systems.
Ms. JACKSON LEE. Do you need resources to move to a new system?
Mr. CRONIN. I think we are funded to get that system deployed at airports.
Ms. JACKSON LEE. Could you come to my office and explain why we are still responding to a 1983 system? I want to be able to understand it. I assume that it is in place and maybe that is why it is still there. There is something about fixing something that is old and broken.
Let me just say, Mr. Cronin, I don't want to seem as if I am just looking at data collection, I would like to translate that data collection into remedying the problem of overstays.
Mr. Nardi, you have the Seek and Keep program, as I understand it, and it has some successes. Is that something that should be funded more? Do you have some other strategies going? Can you fight this overstay problem and be part of it, at least part of solving the problem?
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Mr. NARDI. The Seek and Keep investigation was an alien smuggling investigation, and I would imagine that smuggling investigations will, in follow-up work, touch on overstays. We do encounter overstays in our enforcement operations quite frequently. So whether wiretap investigations, undercover operations are effective in an overstay situation, I couldn't say. We haven't had any experience with that.
Ms. JACKSON LEE. We have heard that some of the visa overstays are people that have engaged in terrorist activities, and I wondered if you shared any of that effort.
Mr. NARDI. We do in fact communicate with the Inspections Division with other agencies in the Federal Government; to target terrorist threats to the United States, we participate in joint terrorism task forces which are led by the FBI.
Ms. JACKSON LEE. Thank you.
Mr. SMITH. Thank you. I have a couple more questions, but let me say, first of all, in complimenting a couple of members of the panel today, I didn't mean to slight anybody else. This has been uniformly a very helpful panel, and every single witness has contributed. But the ranking member just reminded me to ask you a question.
Is your agency ready for the year 2000 computer transition?
Mr. BROMWICH. We have a full court press.
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Mr. CRONIN. Not my forte, but yes.
Ms. HAMILTON. Yes.
Mr. NARDI. Yes.
Ms. DALE. We never had a problem.
Mr. SMITH. How could you not have a problem?
Ms. DALE. My understanding is, and I don't really know all of it, but because we have to do sentence computations, we have always used all four digits. We never used just the last two. We have always used all four.
Mr. BROMWICH. I can confirm that. We do oversight work over BOP, and they had fewer problems than any other component in the Department of Justice.
Mr. SMITH. Ms. Dale, let me address a couple of questions to you. How do you determine whether a Federal prisoner is a noncitizen or not?
Ms. DALE. The information comes to us on a presentence report that is filled out by the U.S. Probation Office during an inmate's trial and sentencing, and we get that report and it states in there whether or not
Page 184 PREV PAGE TOP OF DOC Mr. SMITH. When that individual makes out the report, how do they determine whether or not that person is a citizen?
Ms. DALE. I don't know.
Mr. SMITH. My point ismy understanding is that individuals are identified by themselves, which leads me to believe that, as high as is the 27 percent of Federal prisoners we have heard are noncitizens, I think that is probably a relatively conservative figure because there are a lot of individuals who would presumably not self-identify themselves as noncitizens.
Ms. DALE. I can check and get back to you. I don't know if they only take the word of the prisoner.
Mr. SMITH. Do you think that everybody is going to admit?
Ms. DALE. I don't know if probation only takes the word of the prisoner or if they actually check.
Mr. SMITH. Does the INS know if the person is self-identified, or how do you check?
Mr. BROMWICH. In connection with sentencing a prisoner in the Federal system, in every case there is a presentence investigation that is done by an agency that is ancillary to the U.S. courts, and they have investigators that, in fact, prior to a judicial sentencing do an investigation of various aspects of the defendant's life.
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Mr. SMITH. It is my understanding that investigation consists of asking the individual questions, which is still relying upon that individual for information.
Mr. BROMWICH. That would be part of it, but all of the presentence investigations went beyond that when I was a prosecutor.
Mr. SMITH. As bad as the 27 percent figure is, maybe that is relatively accurate.
Ms. Dale, a couple of things. We have asked the Bureau of Prisons, we asked a couple weeks ago, for some information that we have not obtained. Why don't you have or couldn't you provide such basic information as the removal status of individuals who are in Federal prisons who are not citizens?
Ms. DALE. Because we don't know that information. In order for us to house an inmate through his sentence, we don't need to know if he is going to be deported or not.
Mr. SMITH. Don't you think that would be useful if we want to send home individuals who are not citizens and who have been convicted of serious crimes?
Ms. DALE. Whenever a non-U.S. citizen enters our system, we send a detainer action letter to the Immigration and Naturalization Service, notifying them that this person is now in our system, so if they are interested in the person, they need to do some research.
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The other thing that we are working on with INS is an automated download system where every week we are sending a download of computerized information to INS of all non-U.S. citizens in our system each week; and then INS is using this to upload it or download it into one of their enforcement databases so they are able to start tracking all of the non-U.S. citizens that they have and match it with data they have.
My understanding isat INS, is that this systemI think it is called the ''CAIS system''is operational at three locations right now, will be operational at two more by the end of the fiscal year. We are working with INS so there will be better communication back and forth on that type of information.
Mr. SMITH. What about another type of information, and it seems to me this would be very useful, almost necessary, information to have; and that is to know how many of these individuals who are not citizens are illegal immigrants or in the country illegally?
Why is it that the Bureau of Prisons doesn't try to determine that information?
Ms. DALE. Because it wouldn't affect the way that we treat inmates.
Mr. SMITH. I understand that. But for the benefit of the INS, for the benefit of individuals who do have a real interest in that information, it seems to me that would be something that would be useful along the line?
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Ms. DALE. Maybe it would be useful to INS for us to track that information.
Mr. SMITH. Maybe we will put you in touch with the INS and see if you can make this a part of the joint study.
Ms. DALE. I think that the new CAIS system will do. We will be providing the information, so they know who we have; then they can match it with the records that they have on the same individuals.
Mr. SMITH. Thank you.
Ms. Jackson Lee?
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I want to add my appreciation, as the chairman did, for all of the witnesses that are here.
Mr. Nardi in particular, I think if there is any heinous immigration violation that we have, it is alien smuggling. And so I do want to encourage constitutionally illegal but provocative efforts to protect those individuals who are smuggled in terms of their humanity, but to stop what I think is a violent trade, if you will.
Mr. Bromwich, have any of the recommendations you have made, I didn't hear if you answered it earlier, been taken up by the INS?
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Mr. BROMWICH. With respect to one of the recommendations which is to improve the collection of departure records, which I believe Mr. Cronin addressed, the INS has been in fact working with airline carrier personnel, working with them and training them. So with respect to one aspect of that recommendation, they are doing a good job of implementing it. There are other parts even as to that recommendation, including monitoring carrier compliance and fining noncompliant carriers, that we are not satisfied with its progress on.
Ms. JACKSON LEE. How do you analyze the data collection problem that has been enunciated by Mr. Cronin?
Mr. BROMWICH. I think Mr. Cronin's description of it is a sound one. I think that they have an old system that has lots of problems that are created in part by data entry problems. I think there has been in the past, insufficient focus on ironing out those problems. But I think that also, as Mr. Cronin indicated, there are other kinds of records that are available, not just the NIIS system, but other records that maybe even older and more cumbersome; that is, manual enforcement records and manual benefits records that could be of enormous assistance in fashioning a visa overstay enforcement strategy.
And that is an area which we do not believe that INS has done a sufficient job in adequately dealing with the resources and the data that it already has available.
Ms. JACKSON LEE. So we need to look at an expeditious technological overhall and encourage that to occur?
Page 189 PREV PAGE TOP OF DOC Mr. BROMWICH. I think that is right.
Ms. JACKSON LEE. Ms. Dale, you cited some numbers or you noted some numbers aboutI think you did in your testimonyabout the numbers of individuals incarcerated in the Federal Bureau of Prisons system that juxtaposed againstwhat is the population of our Federal Bureau of Prisons system?
Ms. DALE. Currently I think it is 129; 129,000.
Ms. JACKSON LEE. 129,000.
Ms. DALE. I have to kind of add, and I can't do it.
Ms. JACKSON LEE. Are you sayingare you coming and rejecting the role of housing those individuals for the INS at this time?
Ms. DALE. I don't understand the question.
Ms. JACKSON LEE. Are you coming to say you don't want those prisoners?
Ms. DALE. No.
Ms. JACKSON LEE. Are you saying that the Federal Bureau of Prisons is rejecting holdingincarcerating those prisoners who have alleged to have committed violent crimes; that is, being here illegally; are you telling us you don't want them in your facilities?
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Ms. DALE. No, not at all. Never.
Ms. JACKSON LEE. The reason I was concerned is because we have had in the Houston area and other places as well, an escape of individuals from facilities that privately run into the INS; has contracts with a series of privately-run entities who I am sure do a very, very good job, but many of us look to the Bureau of Prisons as a resource for holding the more dangerous prisoners. And I was hoping that you were not rejecting that role.
Ms. DALE. No. I think what you might be talking about is something different than I am. My testimony spoke to non-U.S. citizens who are serving Federal sentences.
Ms. JACKSON LEE. That is who I am speaking about.
Ms. DALE. No, we housewe do not have any non-U.S. citizens serving a Federal sentence in an INS-run or contracted facility.
Ms. JACKSON LEE. Well, you have somelet me clarify, what I am saying. You have some that are on the deportation list that have been charged with aggravated offenses. They have already had their sentences. So let me correct my statement and say, Are you rejecting the potential of housing those who have already served their time? They committed aggravated felonies and they are perceived to be a danger to the community and you are a likely location. Are you sort of rejecting that potentialthat is not occurring nowbut are you rejecting that potential?
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Ms. DALE. No, those are what we refer to as long-term detainees, and they are people that have finished serving their sentences, are waiting to be deported but for various reasons, INS is unable to deport them.
Ms. JACKSON LEE. That is correct.
Ms. DALE. No, it is part of the Department's plan and the Bureau of Prison's plan that we will in the future start taking those into our population. Right now we don't have the space at our medium- and high-security facilities. In our fiscal year 2000 budget, we have requested monies to start site and planning for 3 new facilities, I believe it is two mediums, and one penitentiary that will eventually house that population for INS. And the time line, though, for those facilities to be sited and built is until 2005. In 2005 we would start taking the higher security cases.
Ms. JACKSON LEE. It is a long way away, but I hope we can give some comfort to local communities. That is what I wanted to make clear about your testimony. Thank you very much.
Thank you, Mr. Chairman.
Mr. SMITH. I don't have any other questions, but I do want to emphasize that I think today has been a very useful and informative hearing. Among other things, we have learned that illegal immigration is not a benign crime, it is not a victimless crime. We have heard, in fact, that illegal aliens commit a disproportionate number of crimes. They comprise over one-fourth of the Federal prisoners.
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We have heard about smugglers and employers who take advantage of innocent people and disobey the laws when they do so. I mention the border area of Texas as an indication of the adverse impact of illegal immigration in that area; if it was a separate State it would have the highest unemployment rate of any State, the lowest per capita income, and the highest poverty rate. So illegal immigration is a serious problem and we need to take it seriously.
I thank our witnesses today for contributing to the solutions to the problem, and we stand adjourned.
[Whereupon, at 5:20 p.m., the subcommittee was adjourned.]
(Footnote 1 return)
American Immigration Lawyers Association, 1998.
(Footnote 2 return)
1997 Department of Justice Report
(Footnote 3 return)
House Committee on Appropriations, Report on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Bill, Fiscal Year 1997, H. Rep. 104676 (July 16, 1996), page 33; see Joint Explanatory Statement of the Committee of Conference, Conference Report to Accompany H.R. 3610, Making Omnibus Consolidated Appropriations for Fiscal Year 1997, H. Rep. 104863 (Sept. 28, 1996), page 789.