SPEAKERS       CONTENTS       INSERTS    Tables

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62–496

2000
IMMIGRATION AND NATURALIZATION SERVICE DECISIONS IMPACTING THE AGENCY'S ABILITY TO CONTROL CRIMINAL AND ILLEGAL ALIENS

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

FEBRUARY 25, 1999

Serial No. 33

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Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
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
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

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

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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON 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

HEARING DATE
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    February 25, 1999

OPENING STATEMENT

    Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims

WITNESSES

    Bean, Frank D., Ashbel Smith Professor of Sociology and Public Affairs, Population Research Center, University of Texas at Austin

    DiMarzio, Nicholas, Auxiliary Bishop, Newark, NJ

    Meissner, Doris, Commissioner, Immigration and Naturalization Service

    Rabkin, Norman J., Director, Administration of Justice Issues, General Accounting Office

    Reyes, Hon. Silvestre, a Representative in Congress from the State of Texas

    Stein, Dan, Executive Director, Federation of American Immigration Reform

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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    Bean, Frank D., Ashbel Smith Professor of Sociology and Public Affairs, Population Research Center, University of Texas at Austin: Prepared statement

    Cannon, Chris, a Representative in Congress from the State of Utah: Questions for Commissioner Doris Meissner of the Immigration and Naturalization Service
Answers to questions directed to Commissioner Doris Meissner

    DiMarzio, Nicholas, Auxiliary Bishop, Newark, NJ: Prepared statement

    Evans, Robert D., Director, American Bar Association, Governmental Affairs Office: Letter to Hon. Lamar Smith dated February 24, 1999

    Immigration and Naturalization Service: INS Detention and Deportation Resources for Fiscal Years 1993 to 1999, editorial from the Dallas Morning News, and memos indicating INS' intention to release criminal aliens

    Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas: Prepared statement

    Lofgren, Hon. Zoe, a Representative in Congress from the State of California: Prepared statement

    Meissner, Doris, Commissioner, Immigration and Naturalization Service: Prepared statement
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    Rabkin, Norman J., Director, Administration of Justice Issues, General Accounting Office: Prepared statement

    Reyes, Hon. Silvestre, a Representative in Congress from the State of Texas: Prepared statement

    Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement

    Stein, Dan, Executive Director, Federation of American Immigration Reform: Prepared statement

APPENDIX
    Material submitted for the record

IMMIGRATION AND NATURALIZATION SERVICE DECISIONS IMPACTING THE AGENCY'S ABILITY TO CONTROL CRIMINAL AND ILLEGAL ALIENS

THURSDAY, FEBRUARY 25, 1999

House of Representatives,
Subcommittee on Immigration
and Claims,
Committee on the Judiciary,
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Washington, DC.

    The subcommittee met, pursuant to call, at 9:30 a.m., in Room 2141, Rayburn House Office Building, Lamar S. Smith (chairman of the subcommittee) presiding.

    Present: Representatives Sheila Jackson Lee, Elton Gallegly, Barney Frank, and Ed Pease.

    Staff present: George Fishman, Chief Counsel; Jim Wilon, Counsel; and Judy Knott, Staff Assistant.

OPENING STATEMENT OF CHAIRMAN SMITH

    Mr. SMITH. The Subcommittee on Immigration and Claims will come to order. We are going to move along this morning because we have an expected journal vote at 10 a.m. and we have some business to transact between now and then.

    First, I want to welcome my friend and colleague from Texas, Sheila Jackson Lee, as the Ranking Member of this Immigration Subcommittee.

    I have known the Congresswoman for a number of years and consider her to be a good friend. I have also watched her in action. I know she is a quick study. I am looking forward to two productive years as both of us are respective heads of this Immigration Subcommittee.
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    Before asking her to make remarks, I would like to recognize on my side the new members of the Immigration Subcommittee. I will try to recognize first the ones who are here and then we will mention the ones who are not here.

    Coming back for his multiple term is Elton Gallegly of California, who is also chairman of the Task Force on Illegal Immigration.

    To his right is Ed Pease from Indiana, who served so well and with distinction in the last session of Congress on this Immigration Subcommittee, and was recruited under duress to return.

    Our new member from Florida is Charles Canady, who is also another subcommittee chairman. We welcome his expertise and good judgment as well.

    There are two other new members of the subcommittee who are not here today. Another Floridian, Bill McCollum, who is chairman of another subcommittee, the Crime Subcommittee. He will be joining us, I hope, in a few minutes.

    Bob Goodlatte of Virginia is also new to the Immigration Subcommittee. Bob Goodlatte and Zoe Lofgren are the only two Members of Congress I am aware of who actually practiced immigration law before coming to Congress.

    So they both offer a great deal of expertise. In just a minute, we are going to hear from a colleague of ours from Texas, Silvestre Reyes.
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    Today is the first time the Judiciary Committee or any subcommittee of the Judiciary Committee has ever had a witness through video conferencing that was going to testify and also respond to questions.

    It looks like everything is set up. I spoke to Congressman Reyes just a minute ago, so I think that is going to work.

    Before we get to our opening statements, I just want to recognize the Ranking Member, the Congresswoman from Texas, for any initial remarks she might have.

    Ms. JACKSON LEE. Mr. Chairman, in keeping in the spirit of wanting to hear from our Colleague in Texas, let me as well acknowledge my commitment to working closely with you, and closely with our subcommittee members on, I think, a very important policy issue for the United States.

    So, my intent, of course, is to remain committed, but as well to listen and to learn. I am delighted that we do have the expertise on our subcommittee of returning members: Congresswoman Zoe Lofgren.

    Congressman Barney Frank has served on this subcommittee in the past; Congressman Berman from California as well. I have worked with these issues for a long time.

    I am delighted to welcome, I believe, a new member to this issue and area, and that is Congressman Martin Meehan. So, we have great weight on our side. Cooperative and collaborative efforts, we look forward to it.
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    Mr. SMITH. Thank you. I will recognize myself for an opening statement, then the Ranking Member. Then we will go to our first witness.

    The Administration's record on release of criminal aliens and refusal to fund additional Border Patrol agents should be disturbing to everyone in the country.

    First, the Immigration and Naturalization Service has routinely released criminal aliens back into our neighborhoods. In recent weeks, it planned to direct release of ''all but terrorist criminal aliens.''

    Second, with a record 70 percent of illegal drugs now coming into the country across our southwestern border, this Administration requested not a single additional Border Patrol agent in next year's budget.

    Finally, the President's promise at the time of his certification of Mexico's drug war efforts last year has produced very few, if any, results.

    Arrests of drug dealers are down. Drug seizures have declined. Mexico continues to refuse to extradite drug traffickers to the United States.

    The Administration's pattern of non-action appears to be a full retreat, if not a complete surrender, in the war against drugs.

    Most immigrants come here to work hard and play by the rules, but a significant number commit crimes against American citizens and legal permanent residents. The problem is enormous. A quarter of all Federal prisoners today are non- citizens, and the percentage increases every year.
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    The Justice Department tells us that 60 percent of all released prisoners are arrested again for new crimes within 3 years. This threat can be significantly reduced by removing non-citizen criminals from the United States.

    The INS consistently fails to deport criminal aliens, which endangers our families and our neighbors. Congress recognized this when it overwhelmingly passed, and President Clinton signed, the bipartisan 1996 immigration reform law. It mandated detention of most criminals until their removal.

    The INS was granted an additional 2 years to implement this provision into law. Congress has doubled the funding for detention and deportation since 1996, to $730 million. Yet the INS is still not ready to implement the law.

    There are immediate steps the INS could take. They could free up to 2,700 beds by moving long-term prisoners to Federal prisons. A recent Government Accounting Office report concluded that the INS could save another 1,700 beds and $40 million by completing removal proceedings before deportable prisoners are released.

    Border Patrol agents, inspectors, special agents, and other across America know what is wrong. Their professionalism, hard work, and dedication are an example for all of us.

    Those agents contact the subcommittee virtually every week to explain that they have little support from their Headquarters. Last week, one Border Patrol agent wrote, ''Instead of proactively enforcing the law, our bureaucrats are more concerned with easy, quotable statistics.
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    There is never any coordinated border and interior enforcement strategy in this agency. Instead of a long-term interdiction strategy, all we have ever done is small, knee- jerk operations that have only a temporary effect.

    Needed funds are always stalled at headquarters and not transferred to the field offices. It is February, and the INS is still haggling over approved operational funds.

    Due to these budget problems, we are being directed to release many illegal aliens out into the streets, some of whom are criminal aliens.''

    The new law requires that criminals who cannot be deported immediately should be detained until they leave the country so they will have no opportunity to hurt anyone else. Some at the INS claim that the law is harsh or inflexible.

    Make no mistake, in 1996 Congress intended that all non- citizens who committed serious crimes should be deported. We should not give criminals who are not U.S. citizens more opportunities to further terrorize our communities.

    Last December, there were complaints when INS agents in Texas tried to remove aliens with three or more drunk driving convictions. Some alleged that drunk driving is not a serious crime. One of the suspects drove drunk again and killed a man just before the New Year, leaving behind his wife and children.

    For the record, the law does not prevent the INS from declining to deport the handful of individuals who may have compelling, exceptional cases. Also, the Attorney General has the express authority to halt removal for ''urgent humanitarian reasons'' or ''significant public benefit'' of any individual. The Attorney General has used it rarely, probably because she realizes the great responsibility of allowing convicted felons who are not citizens to remain in the U.S.
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    Criminals are not the victims. People who live in neighborhoods stalked by drug dealers and other felons are the victims. Our compassion must start with them.

    The INS Institutional Removal Program is supposed to remove criminal aliens upon their release from Federal or State prisons. According to the GAO, the INS only removes 1/3 of the eligible criminals under the program. Another third end up using space in INS detention. The final third elude the INS entirely.

    The law envisions that the detention and removal of criminal aliens should be a top priority of INS enforcement.

    Another top priority should be the Border Patrol. Seventy percent of the illegal drugs entering the United States come across our southwestern border. Except for a very small number of Customs and DEA agents, the Border Patrol is our primary line of defense. Yet, the Administration requested not one additional Border Patrol agent in its proposed budget for the fiscal year 2000.

    A year ago, the Administration's own drug czar, General McCaffrey, said that 20,000 Border Patrol agents are needed to control the southwestern border. This week, USA Today reported that the Administration's drug enforcement agency head said that ''the Nation has neither the will nor the resources to win the drug war.''

    This Administration should act immediately to fund an adequate number of Border Patrol agents. The American people want and deserve no less.
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    That concludes my opening statement.

    [The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF HON. LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

    This Administration's record on release of criminal aliens and refusal to fund additional Border Patrol agents should be disturbing to everyone in the country.

    First, the Immigration and Naturalization Service has routinely released criminal aliens back into our neighborhoods. In recent weeks, it planned to direct the release of ''all but terrorist'' criminal aliens.

    Secondly, with a record 70 percent of illegal drugs now coming into the country across our Southwestern border, this Administration requested no additional Border Patrol agents in next year's budget.

    Finally, the President's promises at the time of his certification of Mexico's drug-war efforts last year have produced few results. Arrests of drug dealers are down, drug seizures have declined, and Mexico refuses to extradite drug traffickers to the United States.

    This Administration's pattern of non-actions appears to be full retreat if not a complete surrender in the war against drugs.
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    Most immigrants come here to work hard and play by the rules. But a significant number commit crimes against American citizens and legal permanent residents.

    The problem is enormous. A quarter of all federal prisoners today are non-citizens, and the percentage increases every year.

    The Justice Department tells us that 60 percent of all released prisoners are arrested again for new crimes within three years. This threat can be significantly reduced by removing non-citizen criminals from the United States.

    But the INS consistently fails to deport criminal aliens, which endangers our families and our neighbors.

    Congress recognized this when it overwhelmingly passed and President Clinton signed the bipartisan 1996 immigration reform law. It mandated detention of most criminals until their removal.

    The INS was granted an additional two years to implement the law. Congress has doubled the funding for detention and deportation since 1996 to $730 million. Yet the INS is still not ready to implement the law.

    There are immediate steps the INS could take. It could free up 2700 beds by moving long-term prisoners to federal prisons. A recent General Accounting Office (GAO) report concluded that the INS could save another 1700 beds and $40 million by completing removal proceedings before deportable prisoners are released.
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    Border Patrol agents, inspectors, special agents and others across America know what is wrong. Their professionalism, hard work and dedication are an example for us all. Those agents contact the Subcommittee every week to explain that they have little support from their headquarters.

    Last week one Border Patrol agent wrote, ''Instead of pro-actively enforcing the law, our bureaucrats are more concerned with easy quotable statistics. There's never any coordinated border and interior enforcement strategy in this agency. Instead of a long term interdiction strategy, all we've ever done is small 'knee jerk' operations that have only a temporary effect.''

    ''Needed funds are always stalled at headquarters and not transferred to the field offices. It's February and the INS is still haggling over 'approved' operational funds. Due to these 'budget problems' we are being directed to release many illegal aliens out onto the streets...(some of whom are criminal aliens).''

    The new law requires that criminals who cannot be deported immediately should be detained until they leave the country so that they have no opportunity to hurt anyone else.

    Some at the INS claim that the law is ''harsh'' or inflexible.

    Make no mistake. In 1996 Congress intended that all non-citizens who committed serious crimes should be deported. We should not give criminals who are not U.S. citizens more opportunities to further terrorize our communities.
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    Last December there were complaints when INS agents in Texas tried to remove aliens with three or more drunk driving convictions. Some alleged that drunk driving is not a serious crime. Then one of the suspects drove drunk again and killed a man just before the New Year, leaving behind a wife and children.

    For the record, the law does not prevent the INS from declining to deport the handful of individuals who may have compelling exceptional cases.

    Also, the Attorney General has the express authority to halt removal ''for urgent humanitarian reasons or significant public benefit...'' of any individual. The Attorney General has used it rarely, probably because she realizes the great responsibility of allowing convicted felons who are not citizens to remain in the U.S.

    Criminals are not the victims. People who live in neighborhoods stalked by drug dealers and other felons are the victims. Our compassion must start with them.

    The INS Institutional Removal Program is supposed to remove criminal aliens upon their release from federal or state prison. But according to the GAO the INS only removes a third of the eligible criminals under the program. Another third end up using space in INS detention, and the final third elude the INS entirely.

    The law envisions that the detention and removal of criminal aliens should be a top priority of INS enforcement. Another top priority should be the Border Patrol.

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    Seventy percent of the illegal drugs entering the United States come across our Southwestern border. Except for a very small number of Customs and DEA agents, the Border Patrol is our only line of defense. Yet the Administration requested not one additional Border Patrol agent in its proposed budget for Fiscal Year 2000.

    A year ago, the Administration's own drug czar, General McCaffrey, said that 20,000 Border Patrol agents are needed to control the 2000-mile Southwestern border. This is fewer agents than the number of police officers in Chicago.

    Just this week USA Today reported that the Administration's Drug Enforcement Agency (DEA) head, Thomas Constantine, ''says that the nation has neither the will nor the resources to win the drug war.''

    This Administration should act immediately to fund an adequate number of Border Patrol agents. The American people want and deserve no less.

    Mr. SMITH. I will now recognize the Congresswoman from Texas for her opening statement.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman.

    Might I just yield very briefly to Congressman Lofgren, who has a meeting to attend.

    Ms. LOFGREN. I appreciate that very much.
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    Mr. Goodlatte and I are rolling out our encryption at 10 a.m. So, I do need to do that.

    Ms. JACKSON LEE. The encryption bill.

    Ms. LOFGREN. The encryption bill.

    Also, I wanted to point out that the Intellectual Properties Subcommittee and the Immigration Subcommittee are meeting at the same time.

    So those of us on both subcommittees are in a real bind. It is not that I am not interested in this, but we are going to have to go back and forth.

    I would like to submit my statement for the record and offer my apologies.

    Mr. SMITH. The gentlewoman's statement will be submitted without objection.

    [The prepared statement of Ms. Lofgren follows:]

PREPARED STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

    As a former immigration attorney and one who has worked with refugees and asylum seekers, I welcome this opportunity to hear from today's panel on the Immigration and Naturalization Service's implementation of detention policy.
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    All of us on this subcommittee would agree that those undocumented entrants posing a threat to our communities or the safety of our citizens must be detained. We should also be concerned about the conditions of their detention. Human Rights Watch issued a report that charges that INS' detention practices violate international human rights standards.

    Human Rights Watch is not the only group concerned about INS detention policy. Observant organizations such as the Lawyers Committee for Human Rights, the Women's Commission on Refugee Women and Children and the American Bar Association have all issued reports documenting incidents of mistreatment by detention officers, the inappropriate placement of unaccompanied minors and the lack of access to legal assistance. I would very much like to hear what today's panel has to say about INS policy in those reports.

    I am concerned about detention policy as it affects refugees and those seeking asylum in our country. I understand from constituents who are immigration practitioners that the INS detention policy allows the commingling of criminal aliens with refugees and asylum seekers. What crime have asylum seekers committed? As someone who has worked with the asylum community in San Jose, I look forward to understanding what the INS policy is towards housing criminal aliens and asylum seekers/refugees.

    While most of us on this panel would agree that prudent reforms to our immigration laws are worthy of consideration, we would vastly disagree on the direction those reforms should take. I very much hope that the testimony of the various panels today will allow this subcommittee to move closer to a consensus on detention policy.

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    Mr. SMITH. I understand and appreciate the conflict. Unfortunately, we all face that at one time or another.

    The gentlewoman from Texas, Ms. Jackson Lee, mentioned to me that she has a conflict, for example, on Thursday mornings at 9 a.m. So, in the future, our subcommittees will meet at 10 a.m., if that is of any help. I do not know that it is particularly.

    Ms. LOFGREN. Okay.

    Mr. SMITH. We will talk about it; very well.

    The gentlewoman is recognized.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman.

    Immigration at one time or another has touched all Americans. Whether it was migration through delicately designed shops of the 1400, 1500, and 1600's, whether by slave boats, or large boats of the 1800's and 1900's, or maybe even a fishing boat, or even by foot, most Americans have come from somewhere.

    I look forward to serving on this subcommittee and working with both committed Government professionals, along with those passionately working to hold America to the words found on the Statue of Liberty: ''Give me your poor, your tired, your huddled masses yearning to breath free,'' while also working on the problems of illegal immigration.

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    I look forward to working with Chairman Lamar Smith, along with Chairman Hyde, and Ranking Member Conyers. In actuality, Chairman Smith and myself have a lot in common. Even more so than the fact that we are both from Texas.

    First, we both will work diligently on the subcommittee.

    Secondly, we will both hold true to convictions, especially when we do not agree. That leads me to this hearing and to my convictions.

    The United States is truly at its best when all of us can abide by our laws, and when those laws are fair and just. Oversight is important. That is one of our tasks. So, I look forward to constructive oversight seeking to make committed professionals better.

    Our hearing today, however, gives me pause. On the one hand, I recognize the need for securing our Borders and keeping dangerous criminals detained. On the other hand, I recognize the need for fundamental fairness, due process, and equal protection under the law.

    First, let me say I am proud and glad to announce the fact that the INS has no intentions to release violent criminal aliens, or those who advocate drug use and sell drugs to stalk our neighborhoods.

    I am not convinced that the Illegal Immigration and Immigrant Responsibility Act of 1996, however, is a feasible law that is, at this time, the very best for our Nation. The 1996 law amended the Immigration Nationality Act by mandating that the Immigration Naturalization Service detain all immigrants who have committed a crime. The list of crimes that would subject an immigrant to mandatory detention is extensive.
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    It includes non-violent crimes, crimes which occurred in the distant past, and crimes which no sentence was ever rendered.

    Consequently, lawful permanent residents who have been in the United States for many years, and who have U.S. citizens as family members are often locked away for months or even years in INS facilities.

    Thereby, you are over crowding, and local jails with no possibility for release. It is documented that many immigrants subject to mandatory detention have U.S. citizen spouses and children who are dependent on them.

    Their lives then, subsequent dependency on the Federal Government. Many entered the United States as legal permanent residents or refugees when they were children.

    Many committed non-violent offenses years ago, have paid their debt to society, and have been law abiding citizens for years or even decades. Many have jobs and own their own businesses.

    Many have no ties to their countries of origin and may not even speak the language of their native country. Such was the case of Jesus Kohando. Over 20 years ago, Jesus was 23 years of age when he had a relationship with a young woman who was a minor. At the time, he was living in the United States, but he was not yet a naturalized citizen.

    The young woman's mother notified the police of the relationship and Jesus was arrested. Two decades later, after Jesus was married and the father of two adult children, and with a business, he was arrested after returning from a trip to the Dominican Republic because he was asked if he had ever been arrested.
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    When answered, yes, he was immediately detained. His business has drastically suffered, and his life was irreparably damaged. He was detained for more than 6 months because this is what the 1996 law now mandates.

    I believe reason must prevail. I cannot believe that this law was enacted to lock up innocent persons like Jesus Kohando who would not be stalking your neighborhood. Fortunately, he has been released by the INS, but it is a travesty that we are detaining individuals like this.

    We often talk about reform in Congress, bankruptcy reform, IRS reform, budget deficit reform. Well, I believe, Mr. Chairman, we need immigration reform, again, fairness reform, or mandatory detention reform.

    I say we need fairness reform and mandatory detention reform because a person should only be detained in this Country if they are a danger to the community, or if they pose a potential flight risk.

    The United States Supreme Court in Fucha v. Louisiana stated that freedom from physical detention lies at the core of the liberty interests protected by a due process clause, which should not be denied to those legal residents and immigrants in this nation.

    Accordingly, the Government may deprive an individual of that interest, only if they can demonstrate that such depravation actually serves a significant and legitimate objective.
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    In general, persons with pending removal hearings should be released from custody, absent specific reasons to maintain them in detention. Any individual who has family ties in the community is not a danger to the community, is likely to participate in the resolution of his or her immigration claims, and has posted a reasonable bond should qualify.

    It is clear that the 1996 Immigration law requires the Attorney General to take into custody certain categories of aliens.

    Under the Transition Period Custody Rule in Section 303 of the 1996 law, the Attorney General was permitted to release an alien lawfully admitted to the United States, who satisfied that he or she will not pose a danger to the safety of other persons or property, and is likely to appear for any scheduling proceeding.

    However, when those provisions expired in 1998, lawful permanent residents, refugees, and other lawfully admitted aliens became subject to the Act's mandatory detention provisions, further burdening the INS detention system.

    The question now becomes how do we alleviate this burden? Was the spirit and the letter of the illegal Immigration Reform and Immigrant Responsibility Act of 1996 to be unjust, or unfair, or to crack down on the overwhelming influx, as perceived by many, of illegal immigration?

    I think the latter. However, the consequences of the Act has brought the former option to fruition. Perhaps we need to amend this law, Mr. Chairman. Make it better. Make it fairer.
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    Repealing the mandatory detention provisions would not mean that dangerous criminals are stalking, would be released into our communities, frighten our citizens. Only those who could demonstrate that they are not a danger to the community, and will appear for future Immigration court hearings will be released.

    The INS and Immigration judges will still be able to decide that an individual should not be released from detention. This law was not intended to detain or lock up the Jesus Kohandos of this world.

    It makes no sense whatsoever for the INS to detain immigrants who pose no security threat to society. The INS must retain the discretion to differentiate between those detainees who pose a risk to society and should be kept in detention, and those who pose no risk and should be released.

    I would simply say, Mr. Chairman, that we are burdening the system by allowing or committing these people to such. Very quickly as I wrap up as chairwoman of the Congressional Children's Caucus, I am concerned about how women and children are treated in INS detention facilities.

    The Women's Commission For Refugee Women and Children have assessed conditions of detention in more than 20 detention centers by the INS to hold women asylum seekers.

    These assessments revealed that families are often divided. Children are sometimes incarcerated in juvenile correctional facilities, and that children are sometimes incorrectly placed in adult detention centers.
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    I implore the Commissioner to really take a very close look at these practices to see if these types of inhumane conditions are corrected. The problem here, Mr. Chairman, is not detention space, it is the law.

    The law might be too harsh and unworkable. First needs to be a predetermination hearing before detention occurs. After all, we are talking about liberty here.

    Lastly, Mr. Chairman, concerning detention, in U.S. v. Zidavidas where an immigrant was detained for 4 years beyond the completion of his criminal sentence, the court stated that the probability of permanent confinement is an excessive means of accomplishing the purpose sought to be served. This is abominable. The problem is not detention space, but the law.

    Finally, as I have said, the Border Patrol question is one that we should be concerned about. We should be concerned about more Border Patrol agents, but we should also, Mr. Chairman, be concerned about training.

    We must take into consideration that 40 percent of Border Patrol agents have less than 2 years of experience. Therefore, I think it is most important that we worry about the fact that we have good training.

    I would simply ask that these issues take our attention, but we look at them in a reasonable manner in order to ensure that we do not rush to judgment, we do what is right for this Nation, and what is right for a fair and just Immigration policy.
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    I thank the chairman.

    [The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

I. INTRODUCTION

    Immigration has at one time touched all Americans. Whether it was Migration through delicately designed ships of the 1400's 1500's and 1600's, whether by slavery, or large ships of the 1800–1900's, or fishing boats or even by foot, most Americans have come from somewhere. I look forward to serving on this committee and working with both committed government professionals, along with those passionately working to hold America to the words found in the Statute of Liberty: ''GIVE ME YOUR POOR, YOUR TIRED, YOUR HUDDLED MASSES YEANING TO BREATHE FREE.''

    I look forward to working with Chairman Lamar Smith, along with Chairman Hyde and Ranking Member Conyers. In actuality, chairman Smith and I have alot in common; even more so then we are both from Texas. First, we both will work diligently on the committee. Secondly, we will both hold true to convictions, especially when we don't agree.

    That leads me to this hearing and to my convictions. The United States is truly at its best when all of us can abide by our laws and when those laws are fair and just.
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    Oversight is important and that is one of our tasks. So I look forward to constructive oversight seeking to make committed professionals better.

    Our hearing today gives me pause. On the one hand, I recognize the need for securing our borders and keeping dangerous criminals detained, but on the other hand, I recognize the need for fundamental fairness, due process, and equal protection of the law.

II. DETENTION

    I am not convinced that the Illegal Immigration and Immigrant Responsibility Act of 1996 is a feasible law that is best for our nation. The 1996 law amended the Immigration and Nationality Act by mandating that the Immigration and Naturalization Service detain nearly all immigrants who have committed a crime. The list of crimes which subject an immigrant to mandatory detention is extensive, and includes nonviolent crimes, crimes which occurred in the distant past, and crimes for which no sentence was served. Consequently, Lawful Permanent residents who have been in the United States for many years and who have U.S. citizen family members, are often locked away for months or even years in INS facilities and local jails with no possibility for release.

    It is documented that many immigrants subject to mandatory detention, have U.S. citizen spouses and children who are dependent on them. Many entered the United States as Legal Permanent Residents or refugees when they were children. Many committed nonviolent offenses years ago, have paid their debt to society, and have been law-abiding for years or even decades. Many have jobs and own businesses. Many have no ties to their countries of origin, and some do not even speak the language of their native country. Such was the case with Jesus Cojjado. Over twenty years ago when Jesus was 23 years of age he was in a relationship with a young woman who was a minor. At the time, he was living in the United States but he was not yet a naturalized citizen. The young woman's mother notified the police of this relationship and Jesus was arrested. Two decades later, after Jesus was married and the father of two adult children, he was arrested after returning from a trip to the Dominican Republic because he was asked if held had ever been arrested. When answered yes, he was immediately detained, his business drastically suffered, and his life was irreparably damaged. He was detained for more than six months because this is what the 1996 law now mandates. I cannot believe that this law was enacted to lock up innocent persons like Jesus Cojjado. Fortunately, he has been released by the INS, but it is a travesty that we are detaining individuals like this. We often talk about reform in congress. Bankruptcy Reform, IRS Reform, Budget Deficit Reform, well Mr. Chairman we need new Immigration Reform, Fairness Reform, or mandatory detention reform. I say we need Fairness Reform and mandatory detention reform because a person should only be detained in this country if they are a danger to the community, or if they pose a potential flight risk. The United States Supreme Court in Foucha v. Louisiana,(see footnote 1) stated that, ''Freedom from physical detention lies at the core of the liberty interest protected by the due Process Clause.'' Accordingly, the government may deprive an individual of that interest only if it can demonstrate that such deprivation actually serves a significant and legitimate objective. In general, persons with pending removal hearings should be released from custody absent specific reasons to maintain them in detention. Any individual who (1) has family ties in the community, (2) is not a danger to the community, (3) is likely to participate in the resolution of his or her immigration claims, and (4) has posted reasonable bond should qualify. It is clear that the 1996 Immigration law requires the Attorney General to take into custody certain categories of aliens. Under the transition period custody rule in Section 303 of the 1996 law, the Attorney General was permitted to release an alien ''lawfully admitted to the United States'' who satisfied that he or she ''will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.'' However, when those provisions expired in October 1998, lawful permanent residents, refugees, and other lawfully admitted aliens became subject to the Act's ''mandatory detention'' provisions, further burdening the INS detention system. The question now becomes: how do we alleviate this burden? Was the spirit and the letter of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to be unjust or unfair or to crack down on the overwhelming influx of illegal immigration. I think the latter, however the consequences of the Act has brought the former option to fruition. Perhaps we need to amend this law Mr. Chairman, make it better . . . fairer. Repealing the mandatory detention provisions would not mean that dangerous criminals would be released from detention. Only those who could demonstrate that they are not a danger to the community and will appear for future immigration court hearings will be released. The INS and immigration judges will still be able to decide that an individual should not be released from detention. This law was not intended to detain or to lock up the Jesus Cojjados of the world.
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    It makes no sense whatsoever for INS to detain immigrants who pose no security threat to society. The INS must retain the discretion to differentiate between those detainees who pose a risk to society and should be kept in detention and those who pose no risk and should be released.

    As a woman and as the Chairwoman of the Congressional Children's Caucus I am concerned about how women and young children are treated in INS detention facilities. The Women's commission for Refugee Women and Children has assessed conditions of detention in more than 20 detention centers used by the INS to hold women asylum seekers. These assessments revealed that: Families are often divided, children are sometimes incarcerated in juvenile correctional facilities, and that children are sometimes incorrectly placed in adult detention centers. I implore the Commissioner to really to take a very close look at these practices to see if these types of inhumane conditions are corrected.

    THE PROBLEM HERE MR. CHAIRMAN IS NOT DETENTION SPACE . . . IT'S THE LAW!! The law might be too harsh and unworkable. First, needs to be a pre-determination hearing before detention occurs. After all, we are talking about liberty here . . . in many cases which involve person who have committed no crime.

    Lastly, Mr. Chairman concerning detention. In U.S. V. Zadvydas where an immigrant was detained for four years beyond the completion of his criminal sentence, the court stated that ''the probability of permanent confinement is an excessive means of accomplishing the purposes sought to be served . . . This is abominable. The problem is not detention space . . . but the law.
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III. BORDER PATROL

    I am keenly aware that the 1996 Immigration Law authorized a total of five thousand additional Border Patrol agents, to be added at the rate of one thousand per fiscal year from 1997 to 2001. However, INS failed to request any additional agents in its proposed budget for FY 2000. However, it must be taken into consideration that currently nearly 40 percent of the Border Patrol agents have less than two years of experience. While we do have the 1996 law authorizing additional agents, other factors must be taken into consideration. Having an inexperienced workforce just to meet the requirements of a congressional mandate, could very well lead to a host of''Other problems. For instance, in 1998 a Laredo, Texas agent was fired for not disclosing he had been deported as an illegal immigrant. The agent had become a naturalized citizen through the amnesty program of the 1980s and was a patrol agent for 10 months before his deportation record became known. A few bad agents have been hired despite elaborate screening at the INS. I raise this not to scold the INS, but to point out that deficiencies in the law that need to be corrected, and that it perhaps is bad policy to engage in a massive hiring without proper, screening, background checks, and training. I will be looking forward to engaging the Commissioner and the other witnesses on these issues Mr. Chairman. Thank-you.

    Mr. SMITH. Thank you.

    The Ranking Member, Ms. Jackson Lee and I are going to stay here, even though we have a journal vote. We want to hear from the Congressman.

    I will understand it if other members want to go catch that vote. I hope that they will return. Congressman Reyes has limited time. We are on the video and I think we need to proceed with him, if there is no objection.
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    Congressman Reyes, as I mentioned a while ago, this is a first effort, but it looks like it is going to work. Thank you for making yourself available. You are our friend and colleague on the front line in El Paso today.

    We appreciate your giving us the time and the benefit of your expertise as well. If you will proceed, we will listen to your testimony and perhaps have a couple of questions for you after you have finished.

STATEMENT OF HON. SILVESTRE REYES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Mr. REYES. Thank you, Mr. Chairman.

    Good morning. I appreciate you giving me this opportunity. Mr. Chairman, Ranking Member Jackson Lee, and other members of the subcommittee, I want to thank you for providing me an opportunity to speak on this very important issue.

    Although I am in El Paso on previously scheduled business, I appreciate the opportunity to testify before your subcommittee.

    I should just make mention that I am in El Paso because I am a member of the Transatlantic Learning Commission, which is comprised of economists, scholars, journalists, elected and appointed officials, and experts that deal with immigration, migration, demographics, trade issues, and general globalization issues, as they affect North America and Europe.
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    So, I appreciate you making these arrangements for me to testify. As many of you know, I spent more than 26 years with the INS; 13 of those as a Border Patrol chief in Texas.

    I have first-hand knowledge of not only the difficulties and struggles that we face on the Border, but also of the success that we have had with initiatives such as Operation Hold The Line, Operation Gatekeeper, and Operation Safeguard.

    While our Border Patrol has made progress, we all agree that we have a long way to go before we can establish control over the 2,000 mile Border with Mexico.

    That is why, as a former Border Patrol Chief, I believe it is inexcusable for the Administration to submit a budget to Congress that does not include funding for additional Border Patrol agents.

    More important, as a Member of Congress representing a Border community, I am deeply disturbed with the message that this request sends to the rest of the Country. It sends a message that we are controlling our Borders.

    That we are controlling illegal immigration and that we are controlling drug trafficking. I can assure you simply that this is not the case. The members of this subcommittee are very familiar with the details of the 1996 Immigration Reform Bill.

    As you know, Mr. Chairman, I do not agree with some portions of that bill. However, a portion of the 1996 law that I support and that has continuously received broad-based bipartisan support is the provision authorizing the hiring of an additional 1,000 Border Patrol agents each year until the year 2001.
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    When the Administration requested only 500 agents last year we, in Congress, stepped in and appropriated funds for the full 1,000 agents. I, like others in Congress, had hoped that this action would send a strong message to the Administration that we are serious about controlling our Borders, and that we expected the full 1,000 agents each year, until the year 2001.

    Obviously, our bipartisan message was not heard by the Administration. The INS has stated that because of the fast growth of the agency, our Nation's Border Patrol agents are too young and too inexperienced.

    There is concern as to what this relative youth and inexperience may mean to the safety of our agents and the communities that they work in. I, too, am concerned with the safety of my former colleagues, and the safety of those who live in communities along the Border.

    I have been in the field and I live in one of these communities. However, I believe that this fear is unfounded. Mr. Chairman, INS has said that there are too many agents in the field with less than 2 years of experience.

    Nationwide, roughly 35 percent of Border Patrol agents have less than 2 years of experience. While this figure is higher than it has been in the past, experience has taught us that this ratio is well within acceptable standards.

    In fact, there are a number of sectors along the Southwestern Border that desperately need additional agents and can easily absorb additional resources. For instance, only 14 percent of the Border Patrol agents in the El Paso sector have less than 2 years of experience, and more than 20 percent below the national average. Only 15 percent of the Border Patrol agents in the Marfa sector in Texas have less than 2 years of experience.
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    The number for the San Diego sector is 14 percent, and for the Tucson sector it is at 20 percent. As you can see, these sectors are not inundated with young, inexperienced agents. The opposite is quite true.

    Just last week, a member of my staff met with all five Texas Border Patrol Chiefs and asked if they could use more agents. Each and every one of them stated that they desperately need more agents.

    I know that the response would be the same if every Border Patrol Chief were asked this very same question. As a former Chief, I understand the concept of force multipliers; the utilization of technology to augment available agent resources.

    The success of force multipliers hinges on the availability of agents. Border Patrol agents are the backbone of sector operations. All of the technology in the world becomes irrelevant if you do not have Border Patrol agents to respond to those alerts.

    That being said, I find it hard to imagine that the Administration would submit this budget without requesting the required 1,000 agents.

    You have to wonder who makes those decisions. It certainly is not anyone who knows or understands Border Patrol operations or requirements. As most of you know, I proposed a separation of the enforcement function from INS and into a separate, independent agency.

    If INS supports the Administration's position that no additional Border Patrol agents are needed in fiscal year 2000, then I believe it simply makes the case for separation that much stronger.
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    In closing, I would like to make one last point that I believe is very important. Not only does the fiscal year 2000 fail to fund even one additional Border Patrol agent, but at the rate that INS is currently going, it is very likely that they will not hire the necessary number of agents for fiscal year 1999.

    The numbers at the Border Patrol Academy are not promising. In order to meet the requirement for the additional 1,000 agents appropriated in 1999 by this Congress, they need to train and hire more than 1,900 agents, which includes agents hired to make up for attrition.

    Six classes at the Academy have already been canceled this year. Less than 400 agents are currently in training. Even if INS were to fill every remaining class to capacity, they would still fall short and have to rely on other Federal law enforcement training sites to meet this requirement.

    The inadequacy of the fiscal year 2000 budget request, which ignores a Congressional mandate to hire 1,000 additional Border Patrol agents, is compounded by the fact that the agency is falling behind and failing to meet the fiscal year 1999 mandate.

    This morning, I appreciate the time that you have given me. I come to you with a unique perspective; one which no other Member of Congress has or has had. I have worked our Nation's Border as a Border Patrol agent.

    I believe that I have the practical, first-hand experience on the problems facing an agency that is severely overwhelmed at this time. I will submit, as you know, Mr. Chairman, the rest of my testimony for the record, and would be more than happy to answer any questions from the subcommittee that you may have.
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    Thank you for giving me this opportunity.

    [The prepared statement of Mr. Reyes follows:]

PREPARED STATEMENT OF HON. SILVESTRE REYES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Good morning Mr. Chairman, Ranking Member Jackson-Lee, members of the subcommittee. Thank you for providing me the opportunity to speak on this issue. Although I am in El Paso on previously scheduled business, I appreciate this opportunity to testify before your subcommittee.

    As many of you know, I spent more than 26 years of my life with the INS, 13 of those as a Border Patrol Chief in Texas. I have first hand knowledge of not only the difficulties and struggles we face on the border, but also of the success we have had with initiatives such as Operation Hold the Line, Operation Gatekeeper, and Operation Safeguard. While our Border Patrol has made progress, we all agree that we have a long way to go before we establish control of our 2,000 mile border with Mexico.

    That is why as a former Border Patrol Chief, I believe it is inexcusable for the Administration to submit a budget to Congress that does not include funding for additional Border Patrol agents. More important, as a Member of Congress representing a border community, I am deeply disturbed with the message that this request sends—that we are controlling our borders, controlling illegal immigration, controlling drug trafficking. I can assure you that this is simply not true.
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    The members of this subcommittee are very familiar with the details of the 1996 Immigration Reform bill. As you know, Mr. Chairman, I do not agree with some portions of that bill, however, a portion of the 1996 law that I support and that has continually received broad-based bipartisan support is the provision authorizing the hiring of an additional 1,000 Border Patrol agents each year until 2001. When the Administration requested only 500 agents last year, we in Congress appropriated funds for the full 1,000 agents. I had hoped that action would send a strong message to the Administration that we are serious about controlling our border and expected the full 1,000 agents each year until 2001. Our bipartisan message obviously was not heard.

    The INS has stated that, because of the fast growth in the agency, our nation's Border Patrol agents are too young and too inexperienced. There is concern as to what this relative youth and inexperience may mean to the safety of our agents and the communities they work in and patrol. I too am concerned with the safety of my former colleagues and the safety of those who live in communities along the border. I have been in the field . . . I live in one of those communities. However, I believe this fear is unfounded.

    INS has said that there are too many agents in the field with less than two years of experience. Nationwide, roughly 35 percent of Border Patrol agents have less than two years of experience. While this figure is higher than it has been in the past, experience has taught us that this ratio is well within acceptable standards.

    In fact, there are a number of sectors along the Southwest Border which desperately need additional agents and can easily absorb additional resources. For instance, only 14 percent of the Border Patrol agents in the El Paso Sector have less than two years of experience—more than 20 percent below the national average. Only 15 percent of the Border Patrol agents in the Marfa Sector in Texas have less than two years of experience. The number for the San Diego Sector is 14 percent and Tucson is at 20 percent. As you can see, these sectors are not inundated with young, inexperienced agents. The opposite is true.
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    Just last week, a member of my staff met with all five Texas Border Patrol Chiefs and asked if they could use more agents. Each and every one of them stated that they desperately need more agents. They need more agents. Period. I know that the response would be the same if every Border Patrol Chief were asked the same question.

    As a former Chief, I understand the concept of force multipliers—the utilization of technology to augment available agent resources. But the success of force multipliers hinges on the availability of agents. Border Patrol agents are the backbone of sector operations. All the technology in the world becomes irrelevant if you don't have Border Patrol agents to respond to it.

    That being said, I find it hard to imagine that the Administration would submit this budget without requesting the required 1,000 agents. You have to wonder who makes those decisions—it certainly isn't anyone that knows or understands Border Patrol operations or requirements.

    As most of you know, I proposed the separation of the enforcement function from INS and into a separate independent agency. If INS supports the Administration's position that no additional Border Patrol agents are needed in FY 2000 . . . then I believe it simply makes the case for separation that much stronger.

    In closing, I would like to make one last point that I believe is important. Not only does the FY 2000 budget fail to fund even one additional Border Patrol agent, but at the rate INS is going, it is very likely that they will not hire the necessary number of agents for FY 1999. The numbers at the Border Patrol Academy are not promising. In order to meet the requirement for the additional 1,000 agents appropriated for FY 1999, they need to train and hire more than 1,900 agents—which includes agents hired to make up for attrition. Six classes at the Academy have already been canceled. Less than 400 agents are currently in training. Even if INS were to fill every remaining class to capacity, they would still fall short and have to rely on other federal law enforcement training sites to meet the requirement. The inadequacy of the FY 2000 budget request, which ignores a Congressional mandate to hire 1,000 additional Border Patrol agents, is compounded by the fact that the agency is failing to meet the FY 1999 mandate.
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    I appreciate the time you have given me this morning. I come to you with a unique perspective, one which no other Member of Congress has. I have worked our nation's border as a Border Patrol agent and believe that I have practical, realistic solutions to the problems facing an agency which is severely overwhelmed. I will submit the rest of my testimony for the record and would be more than happy to answer any questions from the subcommittee.

    Thank you.

    Mr. SMITH. Congressman Reyes, thank you for that very insightful testimony. The fact that you feel as strongly as you do, and that every single Border Patrol Chief you have talked to feels exactly the same, I think is very, very compelling.

    As far as I am concerned, you have answered most of the questions that could be asked today; certainly any questions that I could ask. I just thank you for taking the stand that you have.

    I am going to recognize the gentlewoman from Texas for any comments she might have.

    Ms. JACKSON LEE. Congressman Reyes, I, too, thank you very much. You bring a special expertise to the United States Congress.

    Let me commit to you to get the answers of why we are at the point that we are, and to answer the questions about training, and expertise so that we can ensure that our men and women who serve us at the Border have all of the skills, as well as the tools that they need to do the good job.
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    Thank you very much.

    Mr. SMITH. Congressman Reyes, we are going to try to catch a journal vote that is now occurring. Is there anything you want to add, other than what you have said?

    Mr. REYES. No. I would just urge the subcommittee to take a good strong look at this because this is a very important issue for those of us that represent Border communities. Again, I want to thank you for giving me this opportunity to testify via remote satellite.

    Thank you.

    Mr. SMITH. Thank you, again.

    We recognize your expertise and we hope to have a great bipartisan effort to try to get those additional Border Patrol agents. Thank you for your help in that effort.

    Mr. REYES. You are welcome.

    Mr. SMITH. The subcommittee will stand in recess for about 15 minutes while we go vote. We will return shortly.

    [Recess]
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    Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene. We will now go to our panel consisting of the Honorable Doris Meissner, Commissioner, Immigration and Naturalization Service.

    Commissioner Meissner, if you will come forward. Paul Virtue is welcome to come forward with you and whomever else you would like.

    Commissioner, you are welcome to proceed when you are ready.

STATEMENT OF DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE

    Ms. MEISSNER. Mr. Chairman, Congresswoman Jackson Lee, members of the subcommittee, I am pleased to have the opportunity to meet with you today about the Immigration and Naturalization Service's policies regarding the detention of criminal aliens, and the Administration's request for additional resources for the Border Patrol in fiscal year 2000.

    Since this is my first appearance before this subcommittee in the 106th Congress, I want to express my sincere commitment to a productive working relationship with this Congress.

    I look forward to working, again, with you, Chairman Smith, with our new Ranking Minority Member, new and returning subcommittee members to build the partnerships that are necessary to address the immigration issues of concern to us all.
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    I have provided a detailed written statement and will summarize the major points, beginning with the issue of criminal aliens in detention.

    With respect to criminal aliens in detention, I want to be very, very clear. We have contacted all of our offices, each of which has verified that we have not released any aliens who are subject to mandatory detention under the 1996 Immigration Law, nor do we intend to direct them to do so. INS continues to detain and remove from the United States, criminal aliens subject to the mandatory detention requirements of the 1996 law.

    In fact, the average daily number of criminal aliens in detention more than quadrupled between fiscal year 1994 and today; growing from about 3,300 to more than 14,500, while the number of criminal aliens that we have removed from the Country doubled from 28,600 in fiscal year 1993 to 56,100 in fiscal year 1998.

    Despite significant growth in detention space and greater efficiency in removing aliens, INS is detaining more people today than current funding will support. A number of factors have contributed to that situation.

    Under the Transition Period Custody Rules, the TPCR, we were allowed to release non-violent legal permanent residents who did not pose a danger to society and were likely to appear in court.

    This discretionary authority ended when TPCR expired on October 8th. Soon after TPCR expired, INS received its fiscal year 1999 appropriation from Congress, which was $56 million less than the Administration requested for detention.
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    At that funding level for detention, we lost about 500 beds this year, due primarily to increased costs that we must absorb this year. At about the same time, INS stayed the removal of Nationals of the four Central American Countries devastated by Hurricane Mitch.

    As a result, many criminal aliens from these nations who would otherwise have been returned, remained in INS custody. Although the stay for criminal aliens was lifted on January 7th, their delayed removal prevented the turnover of existing bed space, reducing the number of new detainees that we could accommodate.

    INS is working aggressively with the Department of Justice to alleviate the detention situation. I want to assure you that we are exploring all administrative, legislative, and funding options in an effort to fulfill INS' statutory responsibilities.

    Last week, as part of the Administration's comprehensive response to Hurricane Mitch, INS requested an additional $80 million for detention bed space to mitigate the effects of migration related to the devastation in Central America.

    This funding will help ensure that all Central American criminal aliens and others subject to mandatory detention are detained and removed. By securing additional bed space, this request sends the message that the United States Border is not open to illegal crossers.

    We are also working with the Department to request Congress' permission to reprogramming certain existing INS and Department of Justice funds. This reprogramming, coupled with the $80 million in additional funding requested last week, would ensure that through the end of this fiscal year every alien subject to mandatory detention, as well as thousands of others subject to discretionary detention, are detained.
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    Among the administrative steps being taken is increasing the effectiveness of the Institutional Removal Program which identifies criminal aliens incarcerated in Federal, State, and Local facilities to ensure that they are removed from the Country as soon as possible, after they complete their sentences.

    Like you, the Department and INS place the highest value on protecting public safety. I assure you that we will consult with you further regarding plans for mandatory detainees, as well as our views regarding how our detention space may be used the most effectively.

    Turning to the issue of Border Patrol funding. The Administration's commitment to effective Border management remains unwavering. With Congressional support, INS has doubled the number of agents to 8,000, since fiscal year 1993.

    We plan to add the additional 1,000 agents in the fiscal year 1999 budget provided for this year. The President's fiscal year 2000 budget will maintain Border Patrol staffing at the 1999 level.

    It continues strong support for Border enforcement by investing heavily in force multiplying technology, including $50 million for the installation of Integrated Surveillance Intelligence Systems, known as ISIS, at about 200 locations.

    This field tested technology consist of a day and night visual camera system, particularly suitable for remote areas. It is linked to a Central Command Center where a single person can monitor vast areas of terrain.
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    In addition to this new state-of-the-art technology, which enhances the safety of our agents, as well as increases their effectiveness, fiscal year 2000 budget also includes $48 million for construction of new infrastructure on the Border and for improvement, in addition to facilities.

    These include 17 Border Patrol Sector Headquarters, stations, and check points in Texas and in California. INS, with the help of Congress, has made great strides in the effective enforcement of our Immigration laws, especially regarding Border enforcement and the removal of criminal aliens.

    I stand ready to continue to work with you to build on that success. I remain confident that we will meet our obligation to the American people.

    Thank you, Mr. Chairman. I am happy to answer any questions and those of other members.

    [The prepared statement of Ms. Meissner follows:]

PREPARED STATEMENT OF DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE

    Mr. Chairman, Congresswoman Jackson-Lee, and Members of the Subcommittee, I am pleased to have the opportunity to talk to you about the Immigration and Naturalization Services's (INS) policy regarding the detention of criminal aliens and the Administration's request for additional resources for the United States Border Patrol in FY2000. Since this is my first opportunity to appear before the Subcommittee in the 106th Congress, I want to express my sincere hopes for a constructive Congress—working again with Chairman Smith, with our new Ranking Minority Member, and new and returning Members of the Subcommittee. I intend to always be available to you, and look forward to working with you on the many immigration issues of concern to us all.
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    Before I provide a more detailed report on the subject of today's hearing, let me summarize the major points. First, with respect to criminal aliens in detention, I want to be very clear—we have contacted our 3 regions, who have contacted our 35 districts, each of whom report that no aliens have been released who are subject to mandatory detention. INS will continue to detain and remove from the U.S., criminal aliens subject to the mandatory detention requirements of the 1996 immigration law. Indeed, the number of criminal aliens we remove has nearly doubled from 28,600 in FY1993 to 56,100 in FY 1998. Despite significant growth in detention space and greater efficiency in removing aliens, INS nevertheless is detaining more people today than current funding allocations will support. INS, working with the Department, will aggressively address this matter.

    Second, with respect to Border Patrol funding, the Administration's commitment to effective border enforcement remains unwavering. With Congressional support, INS doubled the size of the Border Patrol to 8,000 agents since FY 1993, and plans to add another 1,000 this year. The Administration's FY 2000 budget continues support for Border enforcement investing heavily in force-multiplying technology to increase the effectiveness and enhance the safety of our agents. The budget also requests $48 million in construction funding to border infrastructure and facilities to house the sharp increase in agents over the past few years.

CRIMINAL ALIENS IN DETENTION

    I want to again reiterate that INS has not directed any of our offices to release any aliens subject to mandatory detention under section 303 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and does not intend to direct them to do so. Over the past few years, INS, pursuant to Congressional direction and funding, has rapidly expanded the number of detention beds used to detain removable aliens. While about 5,500 aliens were in detention in FY 1994, about 16,400 are detained today. The percentage of detainees with criminal records has also increased substantially during this period, from 60 percent in 1994 to more than 90 percent today. Most of these increases were accomplished under INS' Transition Period Custody Rules (TPCR), structured regulations which mandated detention in many circumstances and outlined the factors to be considered in weighing release in other circumstances.
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    As you know, the TPCR ceased to be effective on October 8, 1998, when the mandatory detention provisions of IIRIRA took effect. Mandatory detention requires the custody of a broader class of aliens than the TPCR, and does not permit any consideration of release in those cases. Soon after the TPCR expired, INS received from Congress its FY 1999 appropriation, which, due to increased detention costs, funded only 14,250 beds, nearly 500 less than the average daily population in FY 1998. This appropriation was $56 million less than the Administration's FY 1999 request for detention. At about the same time, INS stayed the removal of nationals of the four Central American nations devastated by Hurricane Mitch. Many criminal aliens from these nations who would otherwise have been returned have instead remained in INS custody. While these stays were lifted for criminal aliens in early January, this prevented the turnover of existing bed space, and thus further reduced the number of new detainees that could be accommodated.

    As a result of these factors, and despite the fact that INS removes an average of 4,600 criminal aliens per month, the number of aliens currently in INS custody exceeds the funded bed space level for FY 1999. The Department of Justice and INS are working aggressively to alleviate this situation, and are exploring all administrative, legislative and funding options in an effort to fulfill INS' statutory responsibilities. On February 16, 1999, as part of the Administration's comprehensive response to Hurricane Mitch, INS requested an additional $80 million for detention bed space to mitigate the effects of migration relating to the devastation in Central America. The request will ensure that all Central American criminal aliens, and others subject to mandatory detention, are detained and removal and none are released from detention. It will also ensure a credible border deterrent is in place to send the message that the U.S. border is not open to illegal border crossers, while recognizing that the U.S. does not want to overwhelm the Central American countries by returning too many people too fast. In addition, the Justice Department and INS are working on a request to the Congress seeking permission to reprogram existing INS and DOJ funds and to ensure that INS will continue to detain every alien subject to mandatory detention, as well as thousands of others subject to discretionary detention, throughout this fiscal year.
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    Among the administrative steps being taken is increasing the effectiveness of the Institutional Removal Program (IRP) which identifies criminal aliens incarcerated in federal, state and local facilities. In the first quarter of FY 1999, IRP removals totaled 4,250, a 30 percent improvement over the same period last year and 30 percent of total criminal removals. INS has worked to eliminate the backlog of unidentified criminal aliens in most of the major states with IRP programs, and is finalizing IRP improvement plans in each state. Even successful IRP cases, however, often require INS detention until departure arrangements are completed. Approximately 1,100 of the 3,500 long-term criminal detainees held by INS began as IRP cases, but INS has been unable to return these individuals because of difficulties in obtaining travel documents from foreign governments to allow for their return. We are working with the Departure of State to address this issue. INS' local jail programs successfully identify thousands of criminal aliens, but due to the brief sentences actually served they must be taken into INS custody after finishing their criminal sentences for completion of removal proceedings. Additional tools used to maximize the efficiency of the IRP program includes full use of administrative removal and reinstatement of final orders of removal. As a result, there is an expectation that the average length of detention will decrease, which will give INS the capacity to detain more criminal aliens.

    In addition, we are upgrading the management of INS' detention program. We are seeking a senior level official with the best professional credentials, to consolidate management of INS' entire detention program, including facilities, detention standards and policies, transportation of aliens, and management of detention space.

    The Department and INS place the highest value on protecting public safety. I assure you that we will consult with the Subcommittee further regarding our plans regarding mandatory detainees, as well as our views concerning potential legislative changes to provide the Attorney General with the necessary flexibility to determine the appropriate level of detention needed to ensure that our detention resources are used in the most effective manner possible.
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BORDER PATROL FUNDING

    The President's FY 2000 budget maintains Border Patrol staffing at the FY 1999 level of nearly 9,000 agents, which represents a 122 percent increase and nearly 5,000 agent over the FY 1993 level of 3,965 agents. INS has worked extremely hard over the last few years to meet its hiring goals for the Border Patrol. In the last two years (FY 1997–98), in which Congress added funding for 2,000 agents, INS agent strength actually increased by 2,040 agents. The extent of this accomplishment is further demonstrated by the fact that, in order to reach this level of new agents, INS had to hire and train more than 3,600 agents due to the significant attrition rate for those positions. A strong employment market has challenged INS' recruitment results during the current fiscal year, leading INS to develop an aggressive plan targeting a variety of employment markets. Currently, nearly 40 percent of our Border Patrol agents have less than two years of experience. With a year of consolidation, INS will be able to ensure that we continue to safeguard the highest standards of law enforcement professionalism for this new workforce.

    Concurrent with the period of Border Patrol growth, increasingly effective force-multiplying technology has been deployed. The FY 2000 budget continues our commitment to improving technology in support of our border strategy and includes a request of $50 million to fund the installation of approximately 200 Integrated Surveillance Intelligence System (ISIS) locations. This field-tested technology consists, in part, of poles to which daytime and night visual cameras are attached. The camera sites are linked to centrally located command centers equipped with video monitors allowing for a single person to monitor a vast area of terrain. The ISIS system also includes ground sensors. By linking these technologies, when a ground sensor is triggered, a signal is sent, the designated camera receives the signal, and the camera then trains on the triggered ground sensor. At the centrally located video monitoring site, the person monitoring the video screens is alerted to which sensor/camera system has been triggered, and can immediately view the site. This technology significantly enhances the Border Patrol's ability to maximize effectiveness and officer safety, since the camera may reveal anything from armed drug smugglers requiring immediate dispatch of a team of agents to wild animals requiring no response at all. It will also serve as a deterrent and enforcement presence while the Border Patrol more effectively deploys and builds the experience base of the agents it has hired and trained over the past several years.
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    In addition to ISIS enhancements, the FY 2000 budget also includes $48 million to expand and build more than 20 Border Patrol sector headquarters, stations and checkpoints on the Southwest border, including 17 in Texas and California and border infrastructure. Current facilities are inadequate to meet the need of the rapid expansion of the Border Patrol. Funding for border infrastructure will permit the expansion of border barriers, lighting, and roads along the South West border.

CONCLUSION

    INS, with the help of Congress, has made great strides in the effective enforcement of our immigration laws, especially regarding border enforcement and the removal of criminal aliens. I stand ready to continue to work with you to further our success in meeting immigration challenges, and remain confident we will do so.

    Mr. SMITH. In the Institutional Removal Program, as you are aware, the GAO found that the INS wasted $40 million and used 1,700 detention beds that otherwise would have been available if they INS had followed the procedures recommended by the GAO, and had processed these criminal aliens prior to the time that they were released.

    The conclusion of the GAO study is this. I am reading from the testimony of a future witness today. ''The INS still does not know whether it has identified all potentially deportable criminal aliens in BOP and State prison systems.

    More importantly, INS still is not doing all it should to ensure that it is initiating removal proceedings for aggravated felons and taking them into custody upon their release from prison.
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    Tell me what you are doing to try to correct that problem and what you are doing to implement the recommendations of the GAO. It seems to me that you have an interest and we all have an interest in both saving money and providing additional bed space for needed detainees.

    I might say the GAO has conducted a couple of studies now. They did the first in 1995. They made recommendations. They came back in 1997 and said that the recommendations they made in 1995 still had not been implemented.

    Today, they are saying that regarding the recommendations they made in 1997, there has been nominal progress, but they still have not been implemented and that is why we are wasting this money and wasting this detention space.

    Tell me what you are doing to correct that problem.

    Ms. MEISSNER. Well, the Institutional Removal Program is a very important program. It is a critical part of effective removal of criminal aliens from the Country.

    When it is operating at its most effective, it does prevent the need to take people who have been incarcerated at the State level and in Federal Bureau of Prisons facilities into INS custody.

    In some cases, we will always be needing to take people from the Institutional Removal Program into INS custody, however, because there are times when aliens that we come across in other facilities are from countries to which we cannot remove people or for other reasons are not able to be removed.
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    However, overall we are looking for the greatest efficiencies that we can achieve with removing people from State institutions.

    Mr. SMITH. When do you think you will have implemented the specific recommendations of the GAO?

    Ms. MEISSNER. We are in the process of implementing all of GAO's recommendations. We have now cleared up the backlogs of uninterviewed cases in the seven large States where the Institutional Removal Program has the most impact.

    In those seven large States, in six of them we have cleared the backlog of uninterviewed cases. The one remaining State where we have not cleared the backlog is California.

    That has to do with the vast number of State institutions in California. We are 40 percent of the way there on the uninterviewed cases. We are working with the State of California to clear that backlog totally.

    Mr. SMITH. Let me go to that; the Border Patrol agents. You have not requested any additional funding for Border Patrol agents in the fiscal year 2000 budget.

    The Administration's own drug czar last year said he thought it would take 20,000 Border Patrol agents to guard effectively against illegal drugs. Later today, we have a witness who is an expert in the field saying we need 16,000 just for the southwestern border.

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    How many Border Patrol agents do you think would be the ideal that we should have if we are going to do the job that we need to do?

    Ms. MEISSNER. Well, as you know, the growth of the Border Patrol has been dramatic. We have more than doubled the growth of the Border Patrol in the last 5 years. We have exceeded the President's commitment to the Border Patrol of 7,000 by the year 2000. We have exceeded that considerably.

    Mr. SMITH. If you could have any number of Border Patrol agents that you felt was necessary, how many would that be?

    Ms. MEISSNER. I cannot give you that answer today and I do not know anybody can give you that answer.

    Mr. SMITH. Well, giving us the answer are the drug czar and a professor who studied this subject.

    Ms. Meissner, I have additional questions. My time is up. I am coming back for another round in just a minute. The gentlewoman from Texas, Ms. Jackson Lee is recognized.

    Ms. JACKSON LEE. Thank you very much.

    Commissioner, can you help me explore this question of the release of criminal aliens and state again for me the posture of the INS at this time?

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    Do we have presently released criminal aliens or proposed criminal aliens, or a proposal to release criminal aliens at this point into our communities.

    Ms. MEISSNER. We have not released criminal aliens who are subject to the mandatory detention criteria. We have no plans or intention to release them. The issue that we have been dealing with has been a situation of funding, bed space availability, and pressure on our facilities.

    We have now come to the point where we will be able to meet our bed space requirements, vis-a-vis, the number of criminal aliens subject to mandatory detention that are in our custody as the result of a supplemental funding request sent forward last week by the Administration, and in conjunction with a reprogramming action that is presently in discussion.

    Ms. JACKSON LEE. What is the basis for the suggestion, or rumor, or representation that the INS was about to release such individuals?

    Ms. MEISSNER. We have this year a serious dilemma with regard to detention and our detention space, vis-a-vis, the mandatory detention requirements.

    The Transition Period Custody Rules expired in October. The stays of deportation on Central Americans have put additional burdens on our bed space. The funding situation this year is less than the Administration requested.

    So, we have had to reduce our bed space availability. In light of those situations, as a part of managing our funding, as well as managing our criminal aliens detention requirements, we have been planning how best to use that bed space.
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    We have asked our field offices to prioritize their cases, to be prepared to manage their bed space properly consistent with funding, at the same time that we were attempting to solve the overall funding issues.

    Ms. JACKSON LEE. So, you were simply deliberating on options?

    Ms. MEISSNER. That is correct.

    Ms. JACKSON LEE. That option of release has not been acted upon.

    Ms. MEISSNER. That is correct. The option of release would only have occurred in connection with non-violent, likely lawful, permanent residents who would not pose a danger to the community, but who are currently in detention.

    Ms. JACKSON LEE. That leads me to my next question.

    In my comments in my opening statement, I commented on the 1996 law in terms of its possible awkwardness or lack of flexibility as it relates to non-violent criminal offenders.

    I want to be very specific in my question. Those who committed offenses, non-violent years, and years, and years ago and are, for a variety of reasons, caught up in this web, I see a difficulty in this legislation in its restrictions.
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    Help me assess that. I mentioned in conversations to some constituents the example of a Canadian woman with a Ph.D., who had a circumstance of coming across the Border with a boy friend that happened to be an illegal alien.

    While that was some years ago, she has since married, 10 years, a citizen, et cetera, and she is caught up in the web and was detained because of an action of some years ago, which I think she paid a $25 fine. What is happening with this restriction and the impact that it now has?

    Ms. MEISSNER. Well, we would like to work with the subcommittee and with the Congress on a legislative approach to this issue.

    That has to be in the context of resources issues, administrative, and management steps that we are taking and will continue to take; improvement of the Institutional Removal Program, which we are accomplishing.

    So, there are a series of answers here, but legislation needs to be one element of the answer. We would look forward to working with the Congress to introduce some additional flexibility into the law where mandatory detention is concerned.

    Ms. JACKSON LEE. In order to be fair to this process and to those involved.

    Ms. MEISSNER. And to use the resources, very considerable, that are devoted to this in the most effective way possible to assure the removal of the most violent and the most dangerous to their home countries.
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    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    I will have some additional questions as well.

    Mr. SMITH. The gentleman from California, Mr. Gallegly is recognized.

    Mr. GALLEGLY. Thank you very much, Mr. Chairman.

    I have several things I would like to walk through this morning and then give the Commissioner maybe the opportunity to respond.

    First of all, I have had a great deal of frustration in recent months. We have had, I think, a very reasonably good working relationship over the years.

    In the last few months of 1998, we made several attempts to contact your office to find out specifically what was happening with the enforcement activities of the local INS Office.

    I made several attempts to call you, Commissioner, and after no return phone calls, about a month ago I wrote you, or actually faxed and then followed up with a hard copy letter to you of those requests.

    As of yesterday, I received a form letter from your Director of Congressional Affairs saying, ''Due to significant increase in volume of Congressional inquiries received by this Office, we regret that there will be a delay in our response.'' That is a little frustrating.
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    One of the things that I would like to talk about is our Jail Program that you are very familiar with that you testified before our subcommittee a couple of years ago in strong opposition to the pre-arraignment screening of individuals that had been arrested.

    The bill fortunately was subsequently passed by the Congress by a vote of 410 to 2. The Senate passed it under a unanimous consent. It was signed into law, somewhat I guess reluctantly, by the President in as much as the Administration was advocating opposition to this.

    Let me give you a couple of examples of what has transpired with that program. Still, we continue to fight INS to get proper enforcement agents into the jail. With a part-time operation, and what the FBI has year-after-year said that the County of Ventura is one of the safest counties in the entire Nation, let me give you a little bit of information about what is happening in one of the safest counties in the Nation.

    We have a part-time INS agent who was screening individuals that were arrested in our community. And the sheriff said these individuals, who were illegally in the country, were mainly drug dealers, gang members involved in drive-by shootings, rapes, and murders.

    Last year, with a part-time screening officers, we found over 1,100 illegal immigrants that had been arrested for crimes. Of the 1,100, which makes about 60 percent of those screened, over 70 percent had prior arrests.

    The had never been screened because we did not have the process. In the safest city in the Nation, as represented by the FBI, the City of Thousand Oaks, Jose Zavalla, three-time rapist, and known as a serial rapist, no one had ever checked his immigration status. After he was released, went back and was found guilty of committing three additional rapes in the safest city in the Nation.
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    Also, Mr. Saloyo Caljerio Veronica, in the safest city in the Nation, had 16 prior arrests after he was arrested for alien smuggling, welfare fraud, possession of stolen property.

    Actually, he was only arrested seven times. The next one was 16 times. In any event, no one had adjudicated that he was in the country illegally. Commissioner, last Saturday night, one of my closest personal friends, her mother was run over by a drunk driver.

    This woman was illegally in the United States in one of the smaller cities of my District, Santa Paula. Last year, in that same city, a restauranteur by the name of Isabella Guzeman was shot in cold blood first degree murder, by an individual who had three prior arrests for assault with a deadly weapon.

    No one had ever checked his immigration status. This is a critical program to our District; one of the safest counties with murders, rapes, burglary, carjacking, and so on, and so forth.

    We need a stronger commitment to this program. I know the Administration opposes this program. He has fought us on this program, and still with a part-time person, we are catching hundreds and hundreds of criminal aliens that should not even be in this country. We do not need to import criminals. We have enough of our own.

    Commissioner, my time is expired.

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    Mr. SMITH. Thank you, Mr. Gallegly.

    The gentleman from Massachusetts, Mr. Frank, is recognized.

    Mr. FRANK. Commissioner, you said that there would have to be some reprogramming. You are going to be asking for some reprogramming.

    Ms. MEISSNER. That is a part of it.

    Mr. FRANK. Let me begin by saying that I was just reading and was very impressed, because I agree with it, the testimony of Bishop DiMarzio, who I think makes the case that in fact the dilemma you face is partly the creation of this Congress.

    This Congress went on an anti-immigrant binge a few years ago. What we have done in part is to make your job harder and reduce the resources; not give you the resources you ought to have for it.

    One of the things we did was to complicate this problem of dealing with people who were facing deportation by putting many people in there who are not in fact violent, not in fact threatening. One of the things that happened was that this Congress, in the legislation that it passed I guess in 1996, greatly broadened the number of people who were subject to mandatory removal, did it, by the way, in the most outrageous procedurally irregular way possible.

    Both the House and the Senate had different definitions. The bill left the house and left the Senate saying one thing. It was changed, I could not say in conference, because we never really had a conference. We had a closed door rewriting.
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    I think a part of the problem is that you have been given more people to worry about than you should. I understand we are not focusing as much as we should on the truly dangerous, but that is probably because it seems to me we have given you an amount of other people who are not dangerous to worry about.

    I am also worried because one of the serious problems that I think we confront, and it does not appear to bother many of my colleagues as much, are the great majority, overwhelming majority of immigrants who are decent law abiding people who would like to become citizens, partly in self-defense because this Congress has been passing things that penalize them.

    One of the things that is happening, it seems to me, is the citizenship process has been greatly slowed down; in part because of the things we have done. That is why I worry about the reprogramming.

    What affect will the reprogramming have on the already excessive amount of time it takes the overwhelming majority of law abiding immigrants to become citizens.

    Ms. MEISSNER. The proposal that we will make for reprogramming is not yet complete. It has not been fully concluded. I can assure you that we will be talking about enforcement resources——

    Mr. FRANK. It will not come out of the citizenship backlog.

    Ms. MEISSNER. It will not and it cannot because the funding for citizenship is fundamentally fees that are paid by those who are applying for benefits. That must be redirected into those processes.
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    Mr. FRANK. They are also areas of administrative support. So, it is within law enforcement. If we had not changed the definition of aggravated felon in 1995, 1996, do you have any sense of what the pool would be? What the difference in size of the pool would be that you have to deal with under this program?

    Ms. MEISSNER. I would not be able to give you a number. Certainly, that is something that we can look into.

    Mr. FRANK. I will take an impression.

    Ms. MEISSNER. I think as an overall matter, we all know that the range of crimes called aggravated felonies and the retroactivity of those crimes were substantially broadened under the 1996 law.

    Mr. FRANK. And that expanded this program.

    Ms. MEISSNER. That has expanded greatly.

    Mr. FRANK. Let me as you officially then to give us, if you can, a breakdown of how the program, the number of people that were expanded by those amendments.

    People should understand that the great majority of people in my experience brought in under those amendments were not violent. It was mainly the people who had a drug possession offense 10 years ago. They have not done anything wrong since then.
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    It was changed retroactively. I would be interested in how much the expense of this program has been increased by what I thought was a very ill-advised, and as I said, wholly procedurally irregular change in the statute.

    Ms. MEISSNER. I would be pleased to try to follow up and provide you information. As an overall matter, it has vastly expanded the pool of people subject to mandatory detention. It has also limited our ability to provide relief. Those are issues.

    Mr. FRANK. I understand that. Of course, what happens is, we have Congress requiring you to include under this program people who are no threat to anybody. Then as a consequence, you cannot deal with some of the people who are a threat and we complain about that.

    So, I am not very impressed with our role in all of this. Thank you.

    Mr. SMITH. Thank you, Mr. Frank.

    The gentleman from Indiana, Mr. Pease.

    Mr. PEASE. Thank you, Mr. Chairman.

    I, too, want to join you in welcoming our new Ranking Member to the subcommittee, and Ms. Meissner with whom I have worked and with whom my staff has worked in these difficult matters over the last couple of years.
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    Several members of the subcommittee and I have been moving back and forth to simultaneous meetings and because of that, did not hear the Commissioner's testimony.

    For that reason, I want to yield my time to those who have been here to hear it. One minute to Mr. Gallegly and the remainder to the chairman.

    Mr. GALLEGLY. I thank the gentleman for yielding.

    Commissioner Meissner, can I just impose on you to review my request that we have had for several months and say that it has been delayed so that we can really understand what the agency is doing in California or they are not doing?

    I just make an appeal to you. It is such an important issue in my District, as it is I am sure in other Districts. Could I just ask your opinion because you have been a critic of the Jail Program in the past?

    I think that it would be hard to argue that it has not been a success when you have found 1,100 individuals—individuals that range from committing crimes of murder, to rape, and assault, and a long list of others, smuggling, and so on and so forth that would not have otherwise been detained.

    We are doing it basically with two part-time people. So, 1,100 individuals were caught that would have otherwise been released after their time in jail.

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    Would you not yield that, that has been a successful program?

    Ms. MEISSNER. These jail programs are valuable programs. I have no question about that. They are a part of the broad commitment that we have to criminal alien removal as our first priority, where removal from the Country is concerned.

    Now, the question becomes a question of who are the most serious? How do you place your priorities effectively to deal with the primary or the over-arching requirement here, which is mandatory detention, and the most serious offenders?

    The Jail Programs are a part of removal, but although they yield some serious offenders, there are more serious offenders and mandatory detention requirements that come from the State Institutional Removal Programs and from the Federal Bureau of Prisons. So, it is a question of gradation. It is a question of trying to allocate resources to the most serious issues in the criminal alien arena.

    Mr. GALLEGLY. Could it possibly be that your resistance to this program in the past has been the fact that it has exacerbated a problem that you have with detention facilities by virtue of finding 1,100 individuals, criminal aliens, murder, rape, carjacking, and so on and so forth, which would be under the mandatory clause?

    Could that be one of reasons why there has been an objection to this program?

    Ms. MEISSNER. It is a question of resources and balancing requirements. The Jail Programs, by and large, yield people to our custody in advance of a removal hearing. They have either served such a short sentence that you cannot give them the removal hearing when they are in the jail, or there are pre-convictions as in the case of the jail program that you are talking about.
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    If there are pre-conviction, then we must take them into our custody and they remain with us during the period of the removal hearing. There are cases where there is criminal information or they are with us for an immigration violation.

    So, when you look at that, vis-a-vis, the mandatory detainees and the identification of the serious and violent criminals.

    Mr. GALLEGLY. With the light about to go out, one final question. Can I count on you helping me work with this Jail Program to continue to make it the success by giving us staffing with people who are available out of the——

    Ms. MEISSNER. Absolutely, I will continue to work with you. We have more than two dozen local jail programs going around the country. We are committed to them and we will continue to work with Congress on those programs.

    Mr. GALLEGLY. Thank you. Thank you, Mr. Pease.

    Mr. SMITH. Thank you, Mr. Gallegly.

    Before we proceed with our questions, I am going to ask unanimous consent to enter a number of items in the record.

    First, without objection, certain questions from Mr. Cannon, who is unable to be here, will be submitted to the Commissioner.
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    [The questions from Mr. Cannon follows:]

QUESTIONS FOR IMMIGRATION SUBCOMMITTEE HEARING

For Commissioner Doris Meissner:

 Included in the Senate report accompanying the appropriations bill for the Commerce, Justice and State Departments for FY99, is language requesting that you pay particular attention to the detention space shortfall in Utah.

 This language directs the INS to designate Salt Late City, UT, as a hub location for the criminal alien county jail removal program and to establish at Salt Lake City a temporary holding facility for criminal aliens.

 This language also directs the INS to provide Congress with reports on:

1. The feasibility of locating a permanent INS detention center at Salt Lake City, and

2. The resources and training needed to address the overall INS mission in Utah, with specific reference to detention space and the number of agents assigned to the State.

 These reports were to be delivered to Congress no later than January 31, 1999. They have not yet been received.

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 When can we expect to see these reports?

    Mr. SMITH. Her written responses would be appreciated within a week. Is that possible, if we get the questions to you today?

    Ms. MEISSNER. We will do the best we can.

    Mr. SMITH. Okay. Thank you.

    [The answers referred to follows:]

STATUS OF DETENTION SPACE REPORTS TO CONGRESS AS REQUESTED DURING THE FY 1999 APPROPRIATIONS PROCESS

 In its report accompanying the FY 1999 appropriations bill, the House of Representatives directed INS to submit a report by May 1, 1999 on INS' anticipated detention needs over the next three years, including the detention capacity on the Tohono O'odham Nation's reservation in southwest Arizona and also in the State of Utah.

 Subsequent to the House markup, the Senate, in its report, directed INS to submit a report on the feasibility of locating a permanent detention center in Salt Lake City, Utah, and the resources and training needed to address the overall mission in Utah, with specific reference to detention space and the number and distribution of agents assigned to the State. The Senate requested these reports by January 31, 1999.

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 Subsequent to the House and Senate markup, the Conference Report requested a report on INS detention needs for the next three years (the earlier House requirement), including the resources and training needed to adequately staff existing and new facilities, including the feasibility of locating a permanent detention center in Utah.

 In effect, the Conference Report combined the requirements of the House and Senate Reports including the three year detention requirements and the specific references to Utah; however, the conferees did not provide a due date in its language.

 In order to meet the needs of both the House and Senate requests in one report, we considered the May 1 date as our deadline for submission of the report.

 In its markup of the FY 1999 supplemental appropriations bill, the Senate believes we are late with their portion of the combined report.

 A portion of the material that the Senate had requested is in draft within INS Headquarters at the current time.

    Mr. SMITH. Also, I would like to make a part of the record the INS Detention and Deportation Resources For Fiscal Years 1993 to 1999, an editorial from the Dallas Morning News, and two memos from the INS indicating their intention to release criminal aliens.

    Without objection, those memos will be made a part of the record.

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    [The INS Detention Report, editorial, and memos referred to follows:]

62496a.eps

62496b.eps

62496c.eps

62496d.eps

62496e.eps

62496f.eps

62496g.eps

62496h.eps

62496i.eps

62496j.eps

62496k.eps

62496l.eps
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62496m.eps

62496n.eps

62496o.eps

62496p.eps

62496q.eps

62496r.eps

62496s.eps

62496t.eps

    Ms. JACKSON LEE. Mr. Chairman, would you yield to me for a submission as well?

    Mr. SMITH. I would be happy to. The gentlewoman is recognized.

    Ms. JACKSON LEE. I would ask unanimous consent, without objection to submit the statements of Representatives Zoe Lofgren into the record.

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    Mr. SMITH. Okay. Now, without objection, all of the above mentioned materials will be made a part of the record.

    Commissioner, I mentioned in my opening statement a couple of ways that we could free up more detention space for these criminal aliens.

    One thing I did not mention is that to my knowledge the Administration has not taken any significant steps to negotiate with countries who refuse to accept back criminal aliens.

    I think it may be close to 3,000 individuals who are now being detained. You have Cuba and Vietnam both refusing to take back criminal aliens.

    Several years ago, we made an agreement with Cuba that we would provide them with 20,000 visas annually in exchange for, among other things, their taking back criminal aliens from Cuba.

    The Administration, to my knowledge, has done nothing. Do you have any information to the contrary?

    Ms. MEISSNER. I would disagree. The Administration is negotiating.

    Mr. SMITH. Let us just say that we have not seen any results.

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    Ms. MEISSNER. Though the Administration has not been as successful as hoped, the issue of removals is one of the only issues where we actually have discussions with the Cuban Government, and similarly with the Government of Vietnam.

    Those discussions take place at regular intervals. This is the first issue on our agenda. At every point, we will continue to pursue that avenue as vigorously as we can.

    Mr. SMITH. Any progress you make obviously is going to make your job a lot easier, and it saves money as well.

    Commissioner, I want to read you a list of aggravated felonies. Please tell me what individuals convicted of these crimes you think our families and neighbors would welcome back into their communities.

    Alien smuggling; child pornography; trafficking in controlled substances; Federal offenses related to explosive materials and fire arms; trafficking in fire arms; fraud or deceit where the victim's loss exceeds $10,000; laundering of money in excess of $200,000; murder; gathering or transmitting national defense information; owning, controlling, managing or supervising a prostitution business; transportation for the purpose of prostitution; an offense relating to protecting the identity of undercover agencies; demand for ransom which obviously has to do with kidnapping; rape; RICO offenses; sexual abuse of a minor; tax evasion in which the Government's revenue loss exceeds $10,000; perjury or obstruction of justice; bribery, forgery, or counterfeiting; other crimes of violence, theft, or burglary; and last, trafficking in vehicles, which obviously means car theft.

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    To my knowledge, that is the list of the aggravated felonies. For which one of those should we say to the American people, we are going to put them back in your communities and they are not a threat to you?

    Ms. MEISSNER. Obviously, those are all serious crimes We would agree they are serious crimes. The point here is that we have in detention and use our detention space to hold people who are violent, who are a danger to the community or who pose a risk of flight.

    That is something that is determined on an individual basis. What we are striving for is effective use of very considerable detention space and very considerable tax dollars that have been invested in detention. This year, the need does not match the funding. That is not to say that there has not been a very considerable allocation of funding over the years.

    Mr. SMITH. I gather the answer was no there.

    Ms. MEISSNER. The use of that space needs to be devoted to people who are violent, who are serious offenders, or pose a risk of flight. That is something that you determine at a hearing.

    Mr. SMITH. I assume that you consider drug trafficking and drug dealing a threat to everyone who lives in this country. Yet they are both statutorily called non-violent crimes. I suspect that we are not in favor of having those offenders back out on the streets, are we?

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    Ms. MEISSNER. I repeat, the important issue here is managing the bed space effectively.

    Mr. SMITH. Is it not true that in hardship cases, of which there are a handful, is it not true that anyone convicted of an aggravated felony and sentenced to less than 5 years would not be deported if his or her life or freedom was threatened in their home country?

    Is it not true that the Attorney General can grant parole and allow an aggravated felon to avoid removal if she decides that there is an urgent humanitarian reason to do so?

    Is it not true that a State Governor or the President can pardon any aggravated felon? Is it not true that the INS can exercise its prosecutorial discretion not to remove those aliens as well?

    I mentioned four ways in which those very few extreme hardship cases could be dealt with. Is it not true that those are the ways that they could be dealt with?

    Ms. MEISSNER. There are ways to deal with certain categories of cases, certain types of cases.

    Mr. SMITH. Thank you, Commissioner.

    The gentlewoman from Texas is recognized.
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    Ms. JACKSON LEE. Mr. Chairman, thank you very much.

    Let me just, for clarity sake, understand what round we are on. Are we going again?

    Mr. SMITH. This is the second round. That is correct.

    Ms. JACKSON LEE. Will we go for the third?

    Mr. SMITH. We will see.

    Ms. JACKSON LEE. It will help me in the context.

    Commissioner, if you would allow me to make some comments, if you would take some notes because I am going to go ahead and include in my comments questions. Then yield to you for a response.

    I started out by saying to the chairman on our very first day that we would have an opportunity to agree, and I am going to agree that there are elements of criminals that we do not want in our community, whether they are citizens or non-citizens. So, I hope that we can make at least a plane statement of the equality of violent criminals.

    I would venture to say to you my neighbors would not want me elected if I was to open the door to violent criminals irrespective, if you will, of their citizenship or non-citizenship.
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    So, we have an agreement on that issue. I think I made a point with the Commissioner in my earlier questions, of course, that she has indicated to me that, that is not the policy of the INS.

    I do want her to help my friend in California, Mr. Gallegly, on these specific issues. I would hope, however, that finite circumstances do not color or define the world.

    I think the problem that we have is taking finite circumstances and dealing with them. Examples of drug trafficking, money laundering, robbery, rape, and aggravated assaults, as a member of the Judiciary Committee's Crime Subcommittee, you can be assured that we work every day to ensure that these elements are not in our community.

    Let me move on to raise the question that I asked or mentioned in my opening statement about the influence or the problems of separated families, the treatment of women inside of these particular centers. Let me also ask about coordination.

    As I heard Mr. Gallegly speak of his problem, he mentioned the various heinous crimes that were committed. And he said that they did not find out that they were illegal immigrants.

    What is our coordination role or interaction with local law enforcement on that issue, keeping in mind the distinctions of Federal and Local authorities, and, of course, the law that govern that? Help me understand that question.
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    As well, let me mention in response to my colleague's desire, Congressman Reyes, for more Border Patrol agents, would you please comment on, again, the point that you made in that the President's commitment has been exceeded.

    I did not hear that, but as well comment on my concern of adding insult to injury with inexperienced Border Patrol agents. Where are we in that?

    An example that I will cite for you not only inexperience, but we are talking here about illegal immigrants, a snafu and embarrassment where in 1988 a Loredo, Texas agent was fired for not disclosing he had been deported as an illegal immigrant.

    The agent had become a naturalized citizen through the Amnesty Program of the 1980's, preceding at least my time here in Congress, and was a patrol agent for 10 months before his deportation record became known.

    So, I see a combination of problems; coordination, collaboration, not collaboration in wrongness, but collaboration in trying to work out our concerns. Then the fact that we cannot take a localized problem and define national law.

    We can work with local officials to resolve those concerns. I hope you have gotten all of my notes; particularly, the treatment of women, children, and the lack of keeping families in these very tragic circumstances.

    Commissioner, would you respond?
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    Ms. MEISSNER. Am I yielded to?

    Ms. JACKSON LEE. Yes, you are because the light is still on.

    Mr. SMITH. We want you to respond in any case. Please proceed.

    Ms. MEISSNER. On the first issue of criminal aliens, I must restate that the commitment of the INS and the Administration to the detention and removal of serious violent criminal alien offenders is absolute.

    We share that commitment with the Congress. That is what we are working towards, what we want our detention program to achieve. There should be no question about that, I want to relieve any doubts that there might be about our desire to deport people who should not be on the streets.

    Now, the issue of coordinating with State and local officials on local jails is one that we practice all over the Country. Our coordination with State and local law enforcement is ongoing at every level of the enforcement activity that takes place in the Immigration Service.

    Local jail programs exist all over the Country. As I mentioned, we have over two dozen local jail programs everywhere from Reicher's Island in New York, Dade County in Miami, to L.A. County, Ventura, and Santa Barbara—the jails that are in Congressman Gallegly's District.
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    There are a variety of different kinds of programs. Many of them are post-conviction programs, as with State institutions and the Federal Bureau of Prisons. Some of them are pre-conviction.

    The pre-conviction programs do put people into our custody who then have the right to due process, to an Immigration hearing, on their illegal entry into the United States.

    That is a part of our responsibility to those individuals and we carry out that responsibility. Those particular people that we might have gotten from a local jail do not fall under the mandatory detention requirements because they have not been convicted of a crime that falls into the statute.

    So, our coordination is comprehensive. Because it takes place all over the Country, there are a variety of different programs and different ways in which people come into our custody.

    On the issue of families: women and juveniles in particular, that is of very special concern to the Immigration Service. It creates unique situations that require separate and sometimes different facilities. This year, for instance, in the funding we did receive in our budget, there was some additional funding for juvenile detention.

    Juveniles are of particular concern to us. We have to be very careful when releasing juveniles, that it is done with assurance that they are placed in safe environments. We work very closely with non-Governmental organizations to place juveniles in safe conditions.
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    However, during the period while we are looking for the appropriate placement for a juvenile, we need to keep them in custody. We are committed to as humane a custody situation as possible and have a series of arrangements around the Country to achieve that.

    Finally, on the issue of the Border Patrol, the Administration is committed to an effective Border Patrol and Border Management Program. We are bringing 1,000 agents on in the current fiscal budget.

    We have, over the last 2 years, trained, hired, and deployed more than 3,000, I think almost 3,600 agents, because that takes into account not only 1,000 agents per year in the budget, but keeping up with our attrition. We have put a very professional hiring, recruitment, training apparatus into place.

    We have insisted on high standards and on strengthening the standards for the Border Patrol. We are getting very high quality Border Patrol agents. Over half of our people now are college educated.

    That is a significant improvement over earlier years in educational credentials. We are committed to maintaining those high standards.

    Mr. SMITH. Commissioner Meissner, you heard Congressman Reyes say awhile ago that he thought it was impossible for you to get 1,000 Border Patrol agents in the field in fiscal year 1999. Do you disagree with him?

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    Ms. MEISSNER. This year, as against the last 2 years, and actually the last 5 years that I am describing, this year we have had some difficulties with recruiting.

    Mr. SMITH. Are you or are you not going to get 1,000 additional agents?

    Ms. MEISSNER. We absolutely will add 1,000 Border Patrol agents.

    Mr. SMITH. Commissioner, Ms. Jackson Lee has an additional comment as well.

    Ms. JACKSON LEE. I am sorry. You said you absolutely? I did not hear that.

    Ms. MEISSNER. We will add 1,000 Border Patrol agents. In fact, we will be actually recruiting and training many more than that in order to get that conversation the net number.

    Ms. JACKSON LEE. Fiscal year 1999?

    Ms. MEISSNER. This is our fiscal year 1999 budget——

    Mr. SMITH. It is still zero for 2000, Sheila.
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    Ms. JACKSON LEE. I just want to get these numbers together. Commissioner, let me just ask for some forwarding information.

    Having come out of a local government, I served as a Municipal Court Judge, I really want to explore this, for lack of a better term, coordination or information about individuals who have such heinous criminal backgrounds.

    I view that in contrast to raiding people's homes and neighborhoods. I would like to understand better what you are talking about when we miss people who are drug traffickers and others because they are in one jail versus another. That information I would appreciate.

    Lastly, I am going to pursue, and I do not think I have gotten enough response on the humane conditions of our detention centers.

    I would look to you and the graciousness of my chairman because I would probably be wanting to visit some of these centers in the very near future and understand more closely how you proceed with women and juveniles, but particularly even children that may not be classified as older children, which I classify as juveniles.

    In any event, let me be in touch. If you would initiate and be in touch with my office on these issues.

    Mr. Chairman, I thank you and I thank the Commissioner for her testimony.
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    Mr. SMITH. Commissioner, we do not have any questions.

    We appreciate your testimony here today. The subcommittee is going to take a brief recess so we can go and make this vote. We will return in about 15 minutes.

    [Recess]

    Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene. Our Ranking Member is going to be here momentarily. If the witnesses can take their seats, we will wait for just a second.

    I am certainly going to wait for the Professor from the University of Texas. He is just now getting ready to take a seat.

    We are going to wait for the Ranking Member before you testify, but while she is on her way back, let me introduce all of the witnesses that we have today as our third panel.

    Dan Stein, Executive Director of the Federation For American Immigration Reform; Norman J. Rabkin, Director, Administration of Justice Issues, General Accounting Office; Most Reverend Nicholas DiMarzio, Auxiliary Bishop, Newark, New Jersey; and Professor Frank D. Bean, Population Research Center, University of Texas at Austin.

    Professor Bean, I did not arrange the order in which you are testifying. I think in the future though, anyone from the University of Texas probably gets priority.
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    I am going to wait just a second because I do believe our Ranking Member will be here momentarily.

    The Ranking Member would like for us to proceed, so we will move forward with the testimony. Mr. Stein, if you will proceed.

STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, FEDERATION OF AMERICAN IMMIGRATION REFORM

    Mr. STEIN. Good morning, Mr. Chairman and Representative Jackson Lee. My name is Dan Stein. I am the Executive Director of Federation For American Immigration Reform.

    FAIR has been working now for 20 years on behalf of the American people, working for Immigration policies which serve the national interest, working for enforcement of Immigration laws, and an Immigration Service that works.

    We are pleased that the Congress has chosen Representative Jackson Lee to be Ranking Minority member. We hope to be able to work with her on issues of mutual concern.

    We have 70,000 members all across the country in 50 States. Our members are concerned that the Immigration and Naturalization Service is not working. It is not working very effectively.

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    It needs to be improved dramatically in virtually every phase of its operation. FAIR believes that the Congress did a wise thing in enacting the 1996 reforms, the Illegal Immigration Reform laws.

    We salute you, Mr. Chairman, for your work in that endeavor. We believe it contains a variety of important enforcement tools which, properly enforced, could make a major difference in how we handle the problem of the illegal immigration. We know that most of the American people are concerned about illegal immigration. They want to see this law enforced. They want to see it enforced effectively.

    We support your efforts to conduct vigorous oversight of the Immigration Service and its efforts to try to implement all phases of this law. We know, however, that there is a broad gap between a law and its implementation.

    Often what the law says, in its specific dimensions, is less important than how well it is implemented. We are concerned that the Immigration Service is not implementing the law with the requisite vigor to bring immigration under control.

    The probability of an illegal immigrant being apprehended and deported is still well-below 1 percent in this country today. To modify what Macaulay once said, ''We must judge the Immigration Service by its general tendency, not by happy accidents.'' The deportation of an illegal immigrant is still frankly only a happy accident. Rarely does it happen.

    Now, the problem with criminal aliens is a growing one. It was asserted as an Administration priority, as its top priority, several years back. We know that the Administration was quite active in announcing its deportation figures on Friday afternoons on a monthly basis for several years.
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    The problem with illegal immigration is likely to grow for several reasons. International smuggling operations have learned the tricks. They are developing sophisticated technologies and operations to bring in illegal immigrants.

    The profit involved in smuggling people has grown considerably. It is also true that the level of legal immigration is extraordinarily high, as was true 100 years ago.

    The relative size of the immigrant population means it is more likely to be involved in the criminal justice system, than the general population. That seems to be bearing itself out again now.

    Criminal alien enforcement efforts have to be integrated within a variety of other issues that pertain to detention. Work-site enforcement, the identification of illegal aliens and criminal aliens, proper integration between State and local officials in the Immigration Service—all of which need vigorous attention from this Administration.

    Mr. Chairman, detention is the fulcrum upon which all immigration enforcement policy rests. It is virtually impossible, whether you line Border Patrol agents from coast to coast—and we want to associate ourselves with the remarks of Representative Reyes about the Border Patrol—whether you line them up coast to coast and have them hold hands, you will never get control of the Border, unless there is an adequate interior enforcement profile, and you have adequate detention space to make the apprehension meaningful.

    Apprehensions mean nothing if you cannot detain aliens, nor can you impose bonds if you have nowhere to put the aliens if they fail to meet bonds. Everything rests on detention.
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    This Administration, in our view, has had adequate time to prepare for the detention requirements of the 1996 bill. There are, obviously, other priorities. In the past, the Immigration Service was not as effectively identifying criminal aliens in State and local prisons. They were falling through the cracks for a variety of reasons. Secondly, Congress, as has been pointed out, broadly defined non-aggravated felonies—I see I am going to have to wrap up here.

    So, there are a variety of issues, but the bottom line is the Administration has had 2 years to prepare for this requirement, the mandatory detention requirement. We feel that they have not properly done so.

    We think that they really need to be held accountable for their failure to implement these things and to be prepared on an adequate basis. Congress provided the funding. Certainly, you all have the requisite interest.

    On the question of discretion, might I have 30 more seconds.

    Mr. SMITH. Thirty more seconds, sir.

    I should have announced this prior to anyone testifying, but I am going to be strict on the 5 minute rule. Without objection, everyone's written statement, in total, will be made a part of the record.

    How about 15 seconds beyond the red light?
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    Mr. STEIN. As someone who needs exercise, I have learned that it is important in life, the most important exercise is the exercise of discretion.

    The Immigration Service lost some of the exercise of discretion because it was abusing it. Under the current regime, if there is an abuse of discretion, there is no legal check in our system in the courts to stop that.

    Therefore, if you restore the discretion, it has got to be done on a very limited basis.

    Thank you, Mr. Chairman.

    [The prepared statement of Mr. Stein follows:]

PREPARED STATEMENT OF DAN STEIN, EXECUTIVE DIRECTOR, FEDERATION OF AMERICAN IMMIGRATION REFORM

INTRODUCTION

    Mr. Chairman, thank you for the opportunity to address the Subcommittee and to present the views of the Federation for American Immigration Reform (FAIR) on preparations by the Immigration and Naturalization Service (INS) for the possible release of detained criminal aliens. My name is Dan Stein, and I am executive director of FAIR. FAIR is a national public interest organization—a citizens' watchdog organization—working for a comprehensive immigration ''time-out,'' for immigration laws that will serve the long-term national interest, and for policies and actions that will help stem the tide of illegal immigration. FAIR does not receive any federal grants, contracts, subcontracts.
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RELEASE OF CRIMINAL ALIENS AND ILLEGAL ENTRANTS

    The INS has acknowledged that it has developed plans for the release of deportable aliens, invoking a shortage of detention space as the justification. This action, should it occur, will violate INA section 236(c), a new section that mandates the continued detention of criminal aliens until final deportation. The INS would be releasing aliens convicted of crimes of moral turpitude and aggravated felonies, including narcotics trafficking, espionage, or terrorism back onto our streets, where they could commit additional crimes and very likely will disappear perhaps permanently.

    Detention is the fulcrum on which all aspects of immigration policy enforcement depend. If the INS is forced by lack of detention space to release or not take into custody deportable aliens—or others in the country illegally who are being allowed to depart voluntary—the immigration laws will become even more ignored than they are today. We must remember that those laws are designed to protect the American people from unwelcome gate-crashers and guests who seriously violate the nation's hospitality.

    The current detention situation is an indication that the efforts of the INS to portray itself as being on top of the criminal alien problem—with record numbers of deportations—are misleading. Mr. Chairman, the number of criminal aliens in detention is increasing—not decreasing. The number of criminal aliens in detention in federal and state prisons rose by nearly 15 percent over the past fiscal year and by about 60 percent (to more than 125,000) since the beginning of fiscal year 1994. Neither the judicial process, nor the detention space available, have been able to keep pace with this disturbing trend.
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    The INS claims that it currently has only about 14,000 detention beds and a deportable population of nearly 16,000. It seems reasonable to ask what happened to the 20,000 detention beds that were projected to be available in fiscal year 1999 in the ''Final Detention Plan: Fiscal years 1997–2001'' that was submitted to Congress in May, 1997. Congress foresaw that the new detention criteria it adopted in 1996 could create detention problems and responsibly wrote transition policies into the law to deal with the need for new resources. The INS had over two years to plan for the new provisions. The May, 1997 Detention Plan charted a course for meeting the new detention space requirements. But the INS has failed to meet its own plan.

    It seems clear that the bed deficit is the result of deliberately adopted policies. That is the only way to explain the fact that available beds operated and contracted for by INS are not keeping up with the growing need. Rather than the projected 20,000 planned for detention beds, the INS puts the funded level of beds at 14,000 (down from 15,000 in fiscal year 1998) and is in the process of making further cuts that will reduce the detention space to 13,500 beds. Contrary to efforts of the INS to characterize the bed shortage as due to events outside of its control, it should be recognized that the situation is entirely a product of the INS decision-making process.

    According to an account in the San Diego Union-Tribune on February 7, 1999, the funding for one of the planned new INS detention facilities in San Francisco was shelved last June when the INS decided to divert the $30 million set aside for its construction to its program to speed up citizenship processing operations. Although the San Francisco facility would not yet be open if construction plans had gone ahead, the reallocation of funds demonstrates how INS has had the power to shape the current situation. The bulk of the increased detention facilities that were planned to be available to meet the current demand were to be leased from state and local agencies. Although current funding for detention space may be suffering from increased costs and decreased receipts, it also seems clear that the INS has failed to make the necessary budget decisions to meet its legal obligations.
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    But, even if the shortage of beds were not the result of deliberate INS decisions resulting from its failure to increase its own facilities at its Service Processing Centers as planned, and to increase its leased space with state and local governments as projected, it still has other remedies besides the release of deportable criminal aliens onto the streets.

    Part of the INS detention problem arises from an Executive Branch decision to suspend the deportation of Central Americans following the devastation of Hurricane Mitch. Apparently, the INS now has in the neighborhood of 1,500 of these deportable aliens on its hands. While we are sympathetic with the people of Central America for their loss of lives and property, we believe there are more appropriate ways to show our solidarity with our neighbors in their reconstruction effort than to indefinitely house their nationals who should be deported under our law. Extending temporary protection for criminals is far beyond any neighborly courtesy that might be expected in the hurricane's aftermath. If the alternative is to release these detainees back onto our streets, it is obvious that the preferable policy would be to resume deporting back to their home country. Some have requested to be sent home to be able to help their families in the recovery effort but are being held against their will.

    Another of the categories of aliens clogging up the INS detention and deportation system is the Cuban Mariel excludable aliens. The 800–900 Cuban criminals who were pushed into the United States by Fidel Castro in 1980 (as part of the Mariel Boatlift), and have been in detention ever since, clearly should be returned to Cuba. The problem has been that Castro has refused to take them, notwithstanding a formal immigration agreement between the Castro regime and the Clinton Administration. How is it that the Clinton Administration agreed to give Castro a guaranteed annual allotment of 20,000 immigration visas for Cubans without obtaining in exchange at least the accepted return of those 800–900 Cuban excludable aliens? Congress should consider freezing these visas until the Administration negotiates some relief for American taxpayers who have been burdened with Castro's criminals for nearly 20 years. Section 243(d) was added to the Immigration and Naturalization Act precisely for this purpose.
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    Those two policy responses alone—removal of deportable Central Americans and the return of excludable Cubans to Cuba—would be sufficient by themselves to eliminate the detention bed shortage problem.

    There are also other corrective measures that would allow the INS to solve its so-called detention crisis without the need to release criminal aliens back on the streets. That conclusion may be drawn from the findings of the General Accounting Office (GAO) in its October 1998 report on ''Criminal Aliens.'' The report charged that INS' efforts to remove imprisoned aliens continued to need improvement. The GAO found that approximately 250 beds per year were unnecessarily occupied by deportable aliens because the INS had not completed the administrative details necessary to accomplish deportation following the alien's release from prison. This inefficiency, which was estimated to have cost INS more than $40 million in fiscal year 1997, is inexcusable. How difficult can it be to process the paperwork on people who are already in prison so that they can be deported immediately upon completion of their sentences?

    As noted above, the INS does not house all of its detainees in its own facilities. It also rents space from other law enforcement jurisdictions. That is largely a factor of funding. There can be no doubt that the INS has been provided with unprecedented increases to its budget in recent years. As an example, the INS resources for detention and deportation grew from $193 million in fiscal year 1993 to $729 million in the current fiscal year—more than a three-and-a-half-fold increase. The fact that the INS has failed to increase its own facilities at its Service Processing Centers, as planned, and to increase its leased space with state and local governments as projected, is not due to a lack of funds but rather a failure to allocate those funds prudently and in accordance with the requirements of law. Thus the issue must be understood as an INS funds management crisis, not one due to the unavailability of resources. Rather than being a detention bed space shortage, as portrayed by the INS, the crisis is a self-inflicted one by the INS. Whether it has been made deliberately or inadvertently, the result suggests malfeasance.
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    Rather than accept responsibility for this situation, the INS appears to find it more convenient to ask Congress for still more money and to propose the release of some deportable aliens. It is an attempt to lay responsibility for its own mismanagement on the doorstep of Congress. It also appears to be a policy that is responsive to the financial interests of immigration attorneys and immigrant-rights advocates who are committed to fighting the tougher deportation laws adopted in 1996 in Illegal Immigration Reform and Immigrant Responsibility Act.

    Immigration lawyers are currently trying to slow the removal process as they battle to maintain their ability to fend off deportation for their clients. This argument is a blatant attempt to hold the American judicial process responsible for something that was caused by the individual criminal acts of immigrants, who violated their condition of admission to this country. The American public is compassionate and accepts the release of convicts who appear to be rehabilitated—albeit with reservations. But for American citizens the only alternative is permanent incarceration. The situation is entirely different for aliens who commit similar crimes. If they have not come here legally, they have not gained any right to be treated as if they were invited to join our society. And those immigrants who have come legally, but have not become U.S. citizens, remain guests in our society whose behavior will not be tolerated if they fail to respect our laws. Being an immigrant to the United States is not a right. It is a privilege. A condition of that privilege is to obey our laws. Deportation has long been accepted as appropriate and just for criminal aliens.

    In some cases there may be family members also living here. Should that stand in the way of deportation? While all situations are different, the fact is that most immigrants have only arrived in the past fifteen years; many of those who commit crimes are not long-term residents of 15 to 20 years or more. Past experience reflects that waiver opportunities provided by Congress have been abused and become the rule rather than the exception. And to make a family member in the U.S. the sole criterion for the deportation waiver would lead to the absurd conclusion that we also must spare innumerable criminals from prison on the basis that they too have families. Unfortunately, innocent family members often end up paying a penalty for the actions of their kin who threaten the public safety. Deported criminal aliens retain full rights as citizens of their country of origin and may lead productive lives there. In most cases, their spouses and minor, unmarried children may join them there.
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    Mr. Chairman, the INS preparation for the release of criminal aliens is not an isolated example of policies being pursued by that agency that are incomprehensible to the American public. As you well know, INS operations are rife with serious problems.

 The INS most recently has admitted to an increasing backlog of persons in legal limbo in the United States. This results from the fact that the INS is not able to keep up with applications for adjustment of status from aliens already here who are seeking green cards.

 There are more applicants for naturalization than the INS can handle, and backlogs have grown. In some offices, waiting lists extend for more than two years after the immigrant has fulfilled the residency requirement to apply for citizenship. To try to speed up the process and qualify as many immigrants as possible to vote in the last presidential election, slipshod policies were adopted that led to the Citizenship USA scandal of thousands of aliens being naturalized despite criminal records that made them ineligible.

 The INS similarly can't cope with the surging wave of illegal aliens. As a result, while the illegal alien population grows by an estimated 275,000 each year, the INS does less to deter new illegal aliens and has opted instead to try to ''manage'' illegal immigration by implementing a strategy called the Phoenix Plan. This new operational strategy eliminates efforts to remove illegal aliens working here illegally.

 Increasingly local law enforcement organizations which contact the INS in connection with detention of illegal aliens are told by INS that it does not have the resources to take custody of the aliens and that they should be released. Individuals who contact the INS with information about the activities of possible illegal aliens in local communities are told that individual cases do not have a high enough priority to justify action. The INS is abrogating its responsibility to protect the society from a wave of illegal immigrants.
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    It is reasonable to conclude, Mr. Chairman, that the above INS failures—in addition to the failure to manage detention of criminal aliens properly—point to repeated and gross INS incompetence that justifies a demand for new management. The agency's management's schizophrenic focus on improving ''customer service'' has lost sight of the fact that its real customers are the American people, and any immigration program must have as its primary beneficiary the general public.

    Nevertheless, we are not sanguine that a change in the INS leadership by itself would correct the problems.

REDUCING THE IMMIGRATION FLOW AND RELIEVING PRESSURE ON THE AGENCY

    FAIR sees this sorry record of INS failures as also demonstrating clearly that immigration is out of control, and that something must be done to reduce the pressures on our society and on the agency. There are simply too many people pushing at the borders, crashing the borders and demanding immigration benefits at the same time. And international demographic pressures are only likely to worsen in the next ten years. It is unlikely that a new INS management could solve all of the agencies myriad problems until the unprecedented number of arriving immigrants' both legal and illegal—is reduced to a more manageable level.

    As many members of this committee know, FAIR has argued that the cumulative stress on many of our nation's vital institutions is due to prolonged large-scale immigration and necessitates an immigration ''time-out.'' We note that H.R.41, Congressman Bob Stump's Mass Immigration Reduction Act, has 49 co-sponsors and merits serious consideration by this committee.
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    The idea of a timeout to allow institutions to catch up with reality is now being buttressed by arguments coming from the Clinton Administration. In its proposed FY 2000 budget, the Administration wants to slow the hiring of new immigration agents, because they are entering the system faster than INS can train them. If the Administration acknowledges that its capacity to train immigration agents has been overwhelmed by sheer numbers, and that a pause is necessary, it is logical to conclude that the system can be overwhelmed by the sheer number of immigrants who enter. In fact, I would suggest that the very reason we are sitting here today is because the system is overwhelmed by more legal and illegal immigrants entering the country than our law enforcement and social institutions can possibly manage.

    If a ''time-out'' on hiring new immigration personnel is an idea the Administration is proposing and Congress is considering, why isn't a ''time-out'' on admitting immigrants worthy of serious consideration as well?

OTHER AREAS OF CONCERN

    Legislative action will be necessary if we are to achieve a more manageable immigration environment. Efforts to better control the border are not enough by themselves—they need to be supported by effective deterrence at the worksite. Employers must be able to verify who is and who is not in a legal work status. The current test program for worker verification offers the means to achieve that objective, and it should be promptly implemented nationwide. We need to end the amnesties and grants of temporary protected status that legitimate illegal entry and encourage others to follow. That means Congress must demonstrate the resolve to repatriate TPS beneficiaries when conditions in the homeland improve, rather than turn TPS grants into permanent amnesty programs.
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    Mr. Chairman, we salute your leadership and appreciate the difficult task of pleasing all the contending parties that are organized to try to weaken the role of the INS and its enforcement mission. We stand ready to assist in whatever way we can to try to improve the performance of the INS in fulfilling its essential duties to the American people.

    Mr. SMITH. Thank you, Mr. Stein. Mr. Rabkin.

STATEMENT OF NORMAN J. RABKIN, DIRECTOR, ADMINISTRATION OF JUSTICE ISSUES, GENERAL ACCOUNTING OFFICE

    Mr. RABKIN. Thank you, Mr. Chairman and Ms. Jackson Lee. I am pleased to be here this morning to discuss our report on INS' Institutional Hearing Program. With me is Evi Rezmovic who managed that work.

    We have issued two reports to you on the IHP. Our first was presented during July 1997 hearings and it discussed operational problems with the program based on our review of data in 1995.

    We made several recommendations to help INS improve the program's operations and outcomes. INS' response was that the program had improved since 1995. After the hearing, you asked us to take another look.

    Our second report, which was issued last October, showed almost no change in INS' performance. We also found that, although INS had begun to work on the recommendations we made in 1997, it had not fully implemented any of them.
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    I would like to summarize the results of that work. I will explain first the basis for our conclusions that INS was not doing a very good job. Then secondly, I would like to talk about the recommendations.

    Our work on INS' performance began with an analysis of whether it had records of potentially deportable prisoners. We asked the Federal Bureau of Prisons and four States with the largest concentration of foreign-born inmates to give us lists of those foreign-born inmates that they released during a 6 month period.

    We compared these lists to the data INS maintains on deportable aliens and the data the Executive Office for Immigration Review maintains on aliens in removal hearings. In 1995, INS' data base of deportable aliens did not have records on about 34 percent of the released foreign-born inmates. In 1997, INS had no records on 36 percent of them.

    Our next step was to ask INS' Law Enforcement Support Center to determine how many of these foreign-born inmates were potentially deportable. In 1995, that portion was 32 percent. In 1997, it was 29 percent.

    Next, the Center determined or us how many of these potentially deportable criminal aliens were aggravated felons, as defined by the Immigration Act. It found 33 percent of the aliens in our 1995 example to be aggravated felons. In our 1997 sample, the Center found 63 percent to be aggravated felons. INS believes that one reason for this substantial increase could be the expansion of the definition of ''aggravated felon'' in the 1996 amendments to the Act.

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    According to the data the Center gathered for us, some of the aggravated felons for whom the INS did not have data were eventually re-arrested. From the 1997 data set, 80 aliens of about 1,200 had been re-arrested at the time of the Center's review. Nineteen of these 80 had been charged with committing additional felonies and 15 had been convicted.

    Then we went back to the potentially deportable inmates that INS did have records on. We wanted to know how often INS met its goal of completing removal proceedings before they were released from prison. We also wanted to know what detention costs INS could have avoided if it had met its goal.

    In 1995, INS did not complete removal proceedings before prison release for 57 percent of the potentially deportable criminal aliens for whom it had records. As a result, it incurred about $37 million in avoidable detention costs for the 9 month period after the aliens were released from prison.

    In 1997, INS did not complete proceedings for about 52 percent of these aliens. The avoidable detention costs for that period were about $40 million.

    At the 1997 hearing you held, we made several recommendations to help INS improve its management of the program. I would like to briefly describe those recommendations and what INS had done about them. This information on their implementation was current as of September of last year. First, we recommended that INS—well, actually, I see my time is running out. There were five recommendations we made. Of the five, they agreed to implement four of them. They were at various stages of implementing them.

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    The fifth one, where we recommended that they give priority to aggravated felons, recognizing that they could not run the program for everybody, INS disagreed and felt that they were given priority by the time the inmates were released. Those who were going to be released sooner, they would give priority to, rather than base it on the crime that they committed.

    That completes my statement, Mr. Chairman.

    [The prepared statement of Mr. Rabkin follows:]

PREPARED STATEMENT OF NORMAN J. RABKIN, DIRECTOR, ADMINISTRATION OF JUSTICE ISSUES, GENERAL ACCOUNTING OFFICE

    Mr. Chairman and Members of the Subcommittee:

    I am pleased to be here today to discuss the Immigration and Naturalization Service's (INS) efforts to initiate and complete removal proceedings(see footnote 2) for criminal aliens in state and federal prisons through its Institutional Hearing Program (IHP).(see footnote 3) The IHP is a cooperative program involving the INS, the Executive Office of Immigration Review (EOIR), and federal and state correctional agencies. It was formally established in 1988 to enable INS and EOIR to complete removal proceedings for criminal aliens while they were still serving their sentences, thus eliminating the need for INS agents to locate the aliens after their release, and freeing up INS detention space for other cases. With the proceedings complete, expeditious removal of criminal aliens upon completion of their sentences can occur. Federal law requires the Attorney General to initiate and, to the extent possible, complete removal proceedings for aggravated felons before their release from incarceration. INS has been delegated the authority to enforce the immigration laws.
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    In 1997, we reported to this Subcommittee that the Immigration and Naturalization Service (INS) needed to improve its efforts to identify potentially deportable criminal aliens in federal and state prisons and complete the IHP for these aliens before they were released.(see footnote 4) We based this conclusion on our analysis of data provided by the Federal Bureau of Prisons (BOP) and five states(see footnote 5) on foreign-born inmates who were released from their prison systems between April and September, 1995.

    INS' Executive Associate Commissioner for Programs told the Subcommittee that INS had improved program operations since 1995. In response, the Subcommittee asked us to review program performance during 1997. Our report in response to that request(see footnote 6) was based on foreign-born inmates released from BOP and four states' prisons between January and June, 1997.(see footnote 7)

    Although our results indicated that INS' performance had shown some improvement, we continue to have several of the same concerns about the IHP. In 1997, INS still had not identified many potentially deportable aliens while they were in prison. The majority of these released criminal aliens were aggravated felons, some of whom were reconvicted for new felonies. INS completed the IHP for about half of the released criminal aliens it identified as potentially deportable while they were in prison. Because INS had to detain aliens who did not complete the hearing process in prison, INS incurred approximately $40 million in avoidable detention costs. In addition, INS had not fully implemented the recommendations we made in our 1997 report to improve the IHP.
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INS Still Failed to Identify All Deportable Criminal Aliens, Including Aggravated Felons

    As was the case when we reported to this Subcommittee in July 1997, we again found that INS had not identified all potentially deportable imprisoned criminal aliens. As a result, INS did not fully comply with the legal requirements that it (1) place criminal aliens who had committed aggravated felonies in removal proceedings while they are incarcerated or (2) take those aggravated felons into custody upon their release from prison.

    In 1995, INS' database of deportable aliens did not have records on about 34 percent (5,884 of 17,320) of the released inmates included in our analysis who had been identified by the states and BOP as foreign born. About 32 percent of these (1,899) were subsequently determined by INS' Law Enforcement Support Center (LESC) to be potentially deportable criminal aliens.

    In 1997, INS had no records on 36 percent of such aliens (7,144 of 19,639), of whom 27 percent (1,903) were determined by LESC to be potentially deportable criminal aliens. Although some of these inmates were citizens and some were ordered removed through means other than IHP, a substantial number were aliens on whom INS did not have records.

    In 1995, about 33 percent (635) of these potentially deportable criminal aliens for whom INS did not have records were aggravated felons at the time of the analysis, as determined by LESC. In our analysis of 1997 data, 63 percent (1,198) of the potentially deportable criminal aliens for whom INS did not have records were identified by LESC as being aggravated felons. According to INS, this increase may be due to the additional crimes classified as aggravated felonies in the 1996 Act. This is important because federal law requires INS to initiate removal proceedings for aggravated felons while they are incarcerated and, to the extent possible, complete deportation proceedings for these felons before their release from prison.
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    According to the INS and EOIR databases, none of the 1,903 potentially deportable criminal aliens had been in removal proceedings while they were in prison or afterward, had been taken into INS custody, or had been deported. LESC provided information on the post-release criminal activities of the 1,198 aggravated felons as follows:

 80 of the 1,198 criminal aliens were rearrested,

 19 of the 80 aliens were charged with committing additional felonies, and

 15 of the 19 were convicted of the felony charges.

    We asked LESC to provide us with information on the nature of the crimes for which the 80 criminal aliens were rearrested. These included crimes such as assault, robbery, and drug offenses. The types of felonies for which the 15 aliens were convicted included crimes mostly involving drug possession, burglary, theft, and robbery.

INS Did Not Complete the IHP For About Half of the Released Criminal Aliens, Incurring Millions in Avoidable Detention Costs

    Our analysis of data from the first 6 months of 1997 revealed that 12,495 released inmates were, according to INS and EOIR databases, potentially deportable.(see footnote 8) We found that about 45 percent of these inmates were released from prison with a final deportation order (having completed the IHP), about 3 percent were released from prison without a deportation order but with INS' having completed the removal hearing process, and about 36 percent were released from prison before INS completed the process. For the remaining 15 percent(see footnote 9) of inmates, there was no indication that hearings were completed either before or after prison release. In comparison, our analysis of data for a 6-month period in 1995 revealed that 40 percent of 11,436 potentially deportable released inmates completed the IHP with a final deportation order, 3 percent completed the IHP with no deportation order, and 41 percent were released from prison before INS completed the process. There was no evidence of hearings being completed for the remaining 16 percent.
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    Not completing removal proceedings during incarceration means that INS has to use its limited detention space to house released criminal aliens rather than using the space to detain other aliens. INS has acknowledged that it incurs detention costs for housing these aliens; costs that our analyses showed could be avoided. Our analysis of fiscal year 1995 data showed that detention costs of about $37 million could have been avoided for criminal aliens who completed the hearing process after prison release and were deported within 9 months of release. Our analysis of fiscal year 1997 data showed that INS could have avoided over $40 million in detention costs for such cases. At least some of the savings in detention costs that INS could realize by processing more criminal aliens through the IHP would be offset by any additional funding that might be required to provide additional resources for the IHP.

INS Has Not Fully Implemented Our Recommendations

    At the 1997 hearing, the Chairman urged INS to fully implement GAO's recommendations for improving the IHP. As of July 1998, INS had made limited progress in doing so.

Nationwide Database

    We stated in our July 1997 testimony that INS needed better information about prison inmates—more specifically, information about which inmates are eligible for the IHP and which of these inmates have been and have not been included in the program. Our work at that time showed that INS' databases did not contain complete and current information on the IHP status of individual foreign-born inmates at any given point in time. INS could use this information to determine which of the released foreign-born inmates had been screened for the IHP, identified as deportable, or placed in the hearing process. We recommended that the Commissioner of INS establish a nationwide data system containing the universe of foreign-born inmates reported to INS by BOP and the state departments of corrections and use this system to track the IHP status of each inmate. As of September 1998, INS had begun to establish an automated system for tracking potentially deportable criminal aliens in BOP facilities, but it had not determined whether it will be able to use this system to track potentially deportable criminal aliens in state prison systems.
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Controls to Ensure That Proceedings For Aggravated Felons Are Initiated Before Prison Release

    The law requires INS to take certain actions regarding criminal aliens who have been convicted of aggravated felonies beyond those actions required for other criminal aliens. As previously mentioned, INS is required by law to initiate and, to the extent possible, complete removal proceedings against aggravated felons while they are incarcerated and to take these felons into custody upon their release. Our work shows, as it did in July 1997, that INS had not complied fully with the required provisions of the law. In 1997, we recommended that the Commissioner of INS give priority to aliens serving time for aggravated felonies by establishing controls to ensure that these aliens (1) are identified from among the universe of foreign-born inmates provided by BOP and the states, (2) are placed into removal proceedings while in prison, and (3) are taken into custody upon their release. By September 1998, INS had not taken specific actions to ensure that aggravated felons are placed in removal proceedings while they are incarcerated and then taken into custody upon their release from prison. In its May 1998 performance review, INS stated that priority is given to aliens with early release dates—as opposed to aggravated felons—to ensure that deportable aliens are not released into the community.

Resource Issues

    We previously reported to this Subcommittee that INS had established IHP performance goals without having a systematic basis for determining the performance results it could accomplish with various resource levels. We reported that INS had not developed a uniform method for projecting the resources it would need—taking into consideration the level of cooperation from BOP and the states—to achieve its overall goal of completing removal proceedings for every eligible foreign-born inmate before release from prison. We recommended that the Commissioner of INS (1) develop a workload analysis model to identify the IHP resources needed in any period to achieve overall program goals and the portion of those goals that would be achievable with alternative levels of resources and (2) use the model to support its IHP funding and staffing requests. Such a model was to consider several factors, including the number of foreign-born inmates, number of prisons that must be visited, number and types of IHP staff, length of time to process cases, and travel time and costs. We also reported in our July 1997 testimony that INS had a 30-percent attrition rate for immigration agents, which was significantly higher than the 11-percent average attrition rate for all INS staff. We recommended that the Commissioner identify the causes of immigration agent attrition and take steps to ensure that staffing was adequate to achieve IHP program goals. INS completed a draft workload analysis model in June 1998 that IHP managers intend to use to determine what resources are needed to accomplish program goals. INS had not resolved the problem of high attrition among immigration agents, who are considered the backbone of the IHP.
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Better Management Oversight

    We reported to this Subcommittee in July 1997 that INS' top management (1) had not formally communicated to the district directors how additional staff (e.g., newly hired immigration agents) should be used in the IHP, (2) did not ensure that specific operational goals were established for each INS district director with IHP responsibilities, and (3) did not respond with specific corrective actions when it became apparent that the program would not achieve its goals for fiscal year 1996.

    Therefore, we recommended that INS establish and effectively communicate a clear policy on the role of special agents in the IHP (e.g., whether immigration agents were replacements for or supplements to special agents). We also said that INS should use a workload analysis model to set IHP goals for district directors with IHP responsibilities. Furthermore, we said that if it appeared that IHP goals would not be met, INS should document actions taken to correct the problem.

    However, our work last year showed that INS had not (1) clarified whether immigration agents were replacements for or supplements to special agents in doing IHP work, (2) set IHP goals for district directors in either fiscal years 1997 or 1998 and for regional directors in fiscal year 1998, and (3) specifically addressed the recommendation to document actions taken by the agency when it appeared that the IHP goals would not be met.

Conclusions

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    Despite its assertions at last year's hearing, INS generally showed limited improvement in its IHP performance based on our analysis of INS' 1997 program performance. This, coupled with INS' slow response to our recommendations, suggests that INS still does not know whether it has identified all potentially deportable criminal aliens in the BOP and state prison systems. More importantly, INS still is not doing all it should to ensure that it is initiating removal proceedings for aggravated felons and taking them into custody upon their release from prison.

    We continue to believe that the recommendations we made in our 1997 testimony are valid and that INS should fully implement them as soon as possible.

    Mr. Chairman, this completes my statement. I would be happy to respond to your questions at this time.

    Mr. SMITH. Than you, Mr. Rabkin. Bishop DiMarzio.

STATEMENT OF NICHOLAS DIMARZIO, AUXILIARY BISHOP, NEWARK, NJ

    Mr. DIMARZIO. Thank you for this opportunity, Mr. Chairman and Congresswoman Jackson Lee. I come with a long experience at Immigration that, as Chairman of the Bishop's Committee on Migration for the United States, and also from New Jersey where I have been involved for many years in Immigration issues.

    I will tell you up front that Catholic Bishopships realize that the Government needs to provide public safety. There is an obligation to retain dangerous individuals and removal proceedings.
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    However, that obligation has to be balanced, so that each individual in detention is actually a threat to the safety of this Country.

    We have submitted a case and we will submit more cases to the subcommittee regarding the broad stoke of this law, which has perhaps gone too far in defining aggravated felons and other issues that have now also the issue of retroactivity apply to them.

    So, in the case cited, this Salvadoran who, actually 12 years ago was convicted of petty larceny, no sentence, no fine, seen as a misdemeanor under the laws of the State in which it happened, becomes an aggravated felon under the Immigration law.

    I think that is not what Congress intended. We have five remedies that could be considered. We need to have some flexibility in repealing the mandatory detention provisions. That needs to be done on an individual case-by-case basis.

    Asylum seekers who come to this Country with a credible fear of persecution that has been adjudicated, should not be maintained in prison. The indefinite detainees perhaps can be released if there is a program for them and if they are not dangerous criminals.

    Also, the jail standards that INS has, the four INS facilities, needs to be applied to the other facilities in which people are detained today, since INS cannot detain them themselves.

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    Also, the retroactivity is perhaps the worst part of the law that we are looking at. We need to redefine the deportable aliens statute so that people who are caught in this web can be released.

    I think it is not consistent with our concept of U.S. justice and our concept of human rights to have this type of law without a review. I think the unintended consequences need to be reviewed at this time. Thank you.

    [The prepared statement of Mr. DiMarzio follows:]

PREPARED STATEMENT OF NICHOLAS DIMARZIO, AUXILIARY BISHOP, NEWARK, NJ

    Thank you, Chairman Smith, ranking member Jackson Lee, and members of the subcommittee for extending the opportunity to testify today and express the views of the United States Catholic bishops on the impact that recent changes in our immigration laws have had on many noncitizens among us who are in detention under the custody of the Immigration and Naturalization Service (INS).

    I am Bishop Nicholas DiMarzio, Auxiliary Bishop of Newark, and chairman of the U.S. Bishops' Committee on Migration. The United States Catholic Conference (USCC) is the public policy arm of the Catholic bishops of the U.S. The USCC provides a broad array of services to both refugees and immigrants, including legal services to noncitizens in detention that are provided by our legal affiliate, the Catholic Legal Immigration Network (CLINIC).

    I am here today because of the U.S. bishops' deep concern about the impact recent changes in immigration law have had on individuals and families who have emigrated to the United States. Our specific focus today is the provisions of the law which mandate the detention of noncitizens who are found guilty of a criminal offense while in the United States.
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    We acknowledge and recognize the right and duty of the government to provide for the public safety and welfare of its citizens. Certainly, this duty and obligation requires that certain dangerous individuals in removal proceedings should be held in detention pending a resolution of their proceedings rather than permitted to remain in the country at large.

    But along with this duty should come an obligation to assess whether each individual in detention is actually a threat to the safety of our country. Human rights considerations, respect for basic dignity, and the practicalities of cost and efficiency mandate that individuals in proceedings who are not threats to the public safety should not be detained. Unfortunately, all too often, current law does not permit this balancing test to take place. In short, we believe the provisions enacted in 1996 went too far. Taken collectively, they:

1) undermine basic human dignity and human rights;

2) unnecessarily separate and divide families;

3) violate fundamental notions of fairness and equal protection under the law, time-honored concepts upon which our nation was founded; and

4) have created an artificial ''crisis'' in the capacity for detaining truly violent or dangerous individuals.

    The Catholic Church has constantly affirmed the basic rights of the human person, the right to those things necessary for life, personal safety and freedom from fear. While affirming these rights, the Church also has recognized the corresponding duties, especially the responsibility to assure that the rights of all our fellow human beings are protected. Church teaching recognizes human sinfulness and affirms the realities of moral choice, personal responsibility, and obedience to rightful authority. At the same time, it proclaims a message of forgiveness and redemption as derived from God's infinite love and saving grace. We understand the importance of the rule of law and the responsibility of the civil society to enforce that law to secure justice, harmony, and rehabilitation. However, the enforcement of the law and the protection of our communities must not come at the deprivation of the basic human rights of the person, even if they have committed a criminal offense and even if they do not share the full fruits of citizenship.
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    Some might ask why the Catholic Church would have an interest in this issue. We are here today, in part, because of the numerous requests the Church receives from immigrant families each week to help loved ones who have languished in detention for several months and even years after having served a criminal sentence, or who are being deported because of a minor crime. In most cases, the person committed the offense years ago and have discharged their debt to society as determined by a court of law—a society's arbiter of whether an accused person committed an offense and the appropriate punishment applied to the offense. In a disturbing number of these cases, Mr. Chairman, the law at the time the offense was committed was such that the immigrant would not have been deportable, would not have been subject to mandatory detention, and would have been afforded the opportunity to pursue avenues of administrative or judicial relief.

    Many families I speak of, Mr. Chairman, have resided in the U.S. for many years and built equities in our communities, paying taxes and otherwise contributing to the rich fabric of our nation. Their loved ones, either a father, brother, mother, or sister, have also resided in the United States for long periods of time and contributed to our communities. In our view, these persons should have their situations reviewed on a case-by-case basis and should not be subjected to a one-size-fits-all approach. This, I note, would require change in the 1996 laws to eliminate the new, onerous mandatory detention provisions; repeal the provisions that have deprived many deserving immigrants of administrative and judicial relief; and enactment of a more reasonable definition of aggravated felonies. What public purpose is served by wasting valuable public resources for the detention of nondangerous long-term legal permanent residents?

    Let me give you an example of one case which has come to my attention. Mr. G., a Salvadoran, fled his country in 1985 after his uncle and two brothers were killed in the civil war. Mr. G.'s father and another brother are now permanent residents and his older brother is a U.S. citizen.
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    Mr. G. worked in several low-paying jobs at first and now drives a semi-truck for a regional grocery chain earning $45,000 a year. He has not relied on the government or charity for help. He is the father of a 7-year old American citizen.

    Upon preparing an application for permanent residence, a problem arose when it came to light that Mr. G. had been arrested in 1987 and pleaded guilty to petty larceny. The criminal charge arose from an incident where Mr. G. was driving around with two high school friends. The group stopped to give a ride to a friend, who happened to be carrying a stolen car stereo system. When later police stopped the car for a broken tail light, all three were arrested. The public defender encouraged them to plead guilty to petty larceny. Mr. G. was fined and given a 12-month sentence, both of which were suspended. This was a misdemeanor under Virginia law. Mr. G. paid his fine and did no jail time. There are no other charges or arrests in his history.

    The Immigration Service is now charging Mr. G. as an ''aggravated felon,'' arguing that it is a crime of theft with at least a one-year sentence. Suspension of sentence is irrelevant after the changes in the 1996 act. The 1996 changes to the law do not recognize any difference between an actual sentence and a suspended sentence. And further, the new definition is being applied to Mr. G. retroactively.

    While we certainly do not condone the offense committed in this case, the penalty given is not proportionate to, and does not fit, the offense. Further, the rules were changed or several years after the mistake was made. Significantly, Mr. G. will probably be separated from his son, perhaps indefinitely, because of a minor offense committed years ago for which he has paid his debt to society.
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    Mr. Chairman, cases such as the one described are brought to the attention of the U.S. bishops and Church agencies on a regular basis. Because of the nature of our current immigration law, we are often limited in our ability to assist families in these situations. I note that the Subcommittee has before it several legislative proposals that would provide private relief for specific individuals trapped in this situation. Indeed, some of that legislation is sponsored by Members of this Subcommittee. Certainly, if there are members of the Subcommittee who believe the law is too harsh for some of their constituents, I would hope they would be open to the idea of revising the law so that others can benefit from the wisdom and discretion of administrative and judicial officials' expertise in handling these matters.

RECOMMENDED CHANGES IN DETENTION LAW AND POLICY

    In our view, current law is overly harsh in its treatment of noncitizens who have been found guilty of crimes after entering the United States. We have several areas of concern: 1) the mandatory detention of those who have been found guilty of crimes, even after they have served their sentence and are considered no threat to society; 2) the indefinite detention of noncitizens who cannot be returned to their country of origin; 3) the detention of asylum seekers who reach our shores seeking protection from persecution; 4) the retroactive provisions of current law, which make susceptible to detention and deportation persons who may have committed an offense several years ago and for which they have paid their debt to society; 5) the expansion of the list of crimes which, for immigration purposes, subjects to deportation those persons who have committed relatively minor crimes; and 6) the removal of discretion from immigration judges in reviewing individual removal cases.

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1. Detention

    Current law requires the INS to detain a deportable or inadmissable noncitizen with a criminal conviction, and I quote, ''when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.''(see footnote 10) This provision has resulted in the unnecessary confinement of thousands of noncitizens who are not dangerous and have served their time for criminal offenses but are being detained pending a final removal order, or indefinitely if their country of origin refuses to take them back. Many are detained for a period longer than their criminal sentence. Their ''immigration'' sentence exceeds their criminal sentence.

    The large majority of those confined are neither a flight risk nor a danger to the community. Of the 9,600 ''criminal aliens'' currently in INS custody, almost half have not committed an ''aggravated felony,'' even by the sweeping new definition that includes violent and non-violent offenders alike.(see footnote 11) A large number of these detainees are legal permanent residents with families and other equities built in the country. Their detention has come at an overwhelming cost to them, to their citizen family members, and to U.S. taxpayers.(see footnote 12)

    The mandatory detention provisions of the 1996 law are excessive, expensive, and often inappropriate. They should be repealed and flexibility should be restored to the system. We are not asking that those who are considered threats to society and have committed serious crimes be released indiscriminately into the streets. Each case, however, should be independently reviewed by an immigration judge or an independent review panel, taking into consideration multiple factors, such as dangerousness or flight risk, family ties, or equities built in our country. If a person is not a danger to the community, has equities that make him or her an unlikely flight risk, and has a responsible NGO or community sponsor, then immigration judges and the INS should be given discretion to release which is statutorily based.
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2. Alternatives to Detention

    Given its human toll, detention should be used as sparingly as possible for those who are considered no threat to society. This means that persons should be detained no longer than necessary and humane, cost-effective alternatives should be employed wherever possible.

    It is clear that inflexible detention mandates are not cost-effective. From FY94 to FY98, funding for detention increased from $239 million to $733 million, an increase of about 200 percent. INS has requested more funding in its FY 2000 budget to meet detention mandates, including an additional $80 million to detain Central Americans fleeing the effects of Hurricane Mitch.

    Alternatives to detention, such as release programs which provide legal and other social services to former detainees, serve the dual role of saving the government money and providing a structured approach to release and reintegration into the community. Such programs, which would include automatic parole revocation for individuals who do not comply with program requirements, employment assistance, counseling services, and other social services, could help reduce recidivism rates and enable former detainees to lead productive lives and contribute to the community.

NECESSARY CHANGES IN CURRENT LAW IMPACTING ON DETENTION

1. Retroactivity
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    The 1996 law applies mandatory detention and deportation rules retroactively, thus affecting noncitizens who committed an ''aggravated felony'' prior to the effective date of the law. Because the 1996 law greatly expands the definition of ''aggravated felony'' and the scope of other criminal deportation grounds, we are presently witnessing cases of persons long ago convicted of minor offenses who now face mandatory detention and removal for crimes that would not have rendered them deportable at the time they were committed. Some of these persons have led exemplary lives and established deep community ties after paying their debt to society.

    The retroactivity of the law leads to the separation and permanent breakup of families, some of which have U.S. citizen members. The publicized case of Gerardo Mosquera is a case in point.(see footnote 13) Mr. Mosquera—a legal resident of the United States for 29 years—was recently deported back to Colombia for a 1989 conviction for selling a $10 bag of marijuana. Gerardo, Jr., his brothers and his sisters were all born in the United States, as was his mother. Despondent because of his father's deportation, Gerardo, Jr. took his life with a gun in the street outside his home. Without her husband and eldest son, the mother does not know how she will support the rest of her children. Gerardo Mosquera made one mistake years ago which led to this human tragedy.

    The retroactivity of the 1996 law has also had the effect of preventing otherwise worthy noncitizens from availing themselves of the naturalization process. INS has begun placing into removal proceedings those noncitizens have some sort of criminal offense, no matter how minor, when they apply for citizenship. Thus, individuals who would become active and productive citizens have no hope of becoming citizens because of a mistake in their past for which they have received punishment. Rehabilitation and seriousness of the crime committed are not taken into consideration.
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    The retroactivity of the 1996 law strikes against American's fundamental notion of fairness, and is destroying the lives of untold number of immigrant families. It also ignores any evidence that an individual has reformed and become a contibuting member of the community.

2. Expansion of the Definition of 'Aggravated Felony'

    The INS-created phrase of 'aggravated felony' now bears little resemblance to the meaning of those words as used in criminal law. Many crimes classified as misdemeanors and nonviolent crimes come within the expanded definition of aggravated felony. The definition is so broad it includes a list of 21 subcategories, including offenses from theft to perjury. The expansion of the definition has affected an increased number of noncitizens who have committed nonviolent offenses for the first time and are no threat to the public safety.

    We believe that Congress should revisit the expanded definition of ''aggravated felony,'' and especially its application to offenses which are punishable by a sentence of one year or more.

3. Relief from Removal

    The U.S. bishops are concerned that current law bars the ability of immigration judges or the INS to exercise discretion in individual cases. Since enactment of the 1996 law, we have seen numerous cases of persons found guilty long ago of minor crimes who now face removal—despite a clean record and strong equities built up over many years of lawful residence. Prior to the mandatory custody provisions of the current law, under Section 212(c) of the Immigration and Nationality Act an immigration judge could exercise discretion and provide relief from deportation for long-term permanent residents who had committed an offense in the past. In deportation cases, an immigration judge could consider several mitigating factors—a detainee's U.S. family members, length of residency in the United States, and rehabilitation—in suspending deportation. The applicant would have to show that he or she had been a lawful permanent resident for at least seven years, had served less than five years of a sentence of an ''aggravated felony,'' had been rehabilitated, and had no other criminal record. Current law takes away such discretion from an immigration judge.
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    Presently, then, an immigrant who is a lawful permanent resident with equities in the United States, including U.S. citizen family members, a home, stable employment, and community ties, cannot receive relief from removal, even if the offense committed was of a relatively minor nature. It would be disconcerting to believe that Congress intended to apply the law to such cases. Mr. Chairman, the Congress should revisit this issue and return discretion where it previously existed.

    I cannot let this opportunity pass, Mr. Chairman, without taking a moment to address several other important detention issues which I hope the subcommittee will address in the coming months. These include detention issues related to indefinite detainees, asylum-seekers, and general conditions of detention.

1. Indefinite Detainees

    Of special concern to the U.S. Catholic bishops is a population of noncitizens in INS custody because of past crimes who cannot be removed from the United States because their country of origin will not accept them. These include persons from countries that have no full or normal diplomatic relations with the United States, countries that categorically or selectively refuse the return of their own nationals; countries with no functional government; and stateless persons. According to the INS, its prison system now holds approximately 3,500 ''lifers,'' or persons who are detained indefinitely. Many of these ''lifers'' are lawful permanent residents who entered the country as refugees when they were children. We are concerned that these persons will continue to be held indefinitely, violating both their human rights and due process rights.(see footnote 14)
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    Courts across the country agree with this assessment. A federal district judge in New Orleans ordered the release of a stateless man whom the INS had detained for four years. In his decision, the judge concluded that indefinite confinement was excessive: ''If there is nowhere to send the alien, then indefinite detention is no longer a temporary measure in the process of deportation; it is permanent confinement. This result shocks the 'conscience.' ''(see footnote 15)

    Other court decisions have come to the same conclusion. For example, release has been mandated when confinement appears permanent or indefninite. A federal district court, for example, held that the detention of HIV-infected Haitians at Guantanamo Naval Base violated due process because there was no guarantee it would end.(see footnote 16) One court also held that officials must exercise some measure of discretion in making custody determinations.(see footnote 17)

    Unlike criminal prisoners , INS indefinite detainees have no exact sentence or set date when they can expect to be released from detention. They are held indefinitely by the INS, the majority in local jails, because the INS will not release them and their country will not accept them. Priests and religious who minister to these individuals in detention facilities throughout the country often find them without hope and severely depressed.

    In the view of the Catholic bishops, long-term confinement is usually unnecessary, often unconstitutional, and always cruel. It violates basic human rights and standards of international law. Except for the most serious crimes, it should come to an end.
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2. Asylum Seekers

    The U.S. Catholic bishops are also concerned about the detention of those who come to our shores to escape persecution in their home countries. In our statement, One Family Under God, the Committee on Migration stated that detained individuals not guilty of a criminal offense ''should also have other options.''(see footnote 18) Although asylum-seekers are not detained for reason of having been found guilty of a criminal offense, they can sit in jail for months while they await their asylum hearing. Although the law mandates the detention of asylum seekers pending a ''credible fear'' determination, fully 60 percent of those who have met the credible fear test are still in detention a month after arriving in the United States. Some are detained for many months in some INS districts.(see footnote 19)

    While district directors have discretion to release those who establish ''credible fear'', many are not released because of multiple factors, such local bias against release, differing concerns that parolees will abscond, and the availability or unavailability of bed space. Detaining asylum-seekers on the basis that they might abscond, however, is largely a waste of taxpayer money: persons who have a solid chance of attaining relief from removal are likely to appear at their immigration proceedings. Furthermore, detention makes it more difficult for these persons—already found to have stated a prima facie case for asylum—to present their cases effectively or find legal representation.

    The detention of asylum seekers is counter to the standards of international law and to the American tradition of harboring those whose basic human rights are threatened. Asylum-seekers who have demonstrated a ''credible fear'' of persecution should be released unless there are exceptional and compelling reasons to keep them in detention. We believe that the law should explicitly state that release is the rule in such cases.
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3. Standards of Detention

    All persons who are in INS detention have the right to be detained in conditions that are humane. In the past two years, well-publicized reports have surfaced regarding chronic abuses within the INS prison system.(see footnote 20) The most recent reports focus on state and local jails where the INS now places roughly 50 percent of those in custody.

    In a recent report,(see footnote 21) Human Rights Watch visited with more than 200 INS detainees held in fourteen local jails across the country. The report cited instances where detainees did not have access to adequate health or dental care, legal representation, or proper clothing. The report also documented instances of physical abuse of detainees.

    In the experience of our own programs, access to detainees to assist them in their cases has been problematic. Attorneys often do not obtain regular access to clients, translators are often unavailable, and visiting hours are limited. There also exists difficulties in reaching clients by phone, extensive delays in waiting for clients at facilities, and transfers of clients away from counsel. All of these factors lead to an abysmally low rate of legal representation in detained cases—less than 11 percent in 1996—that will surely drop further as detained populations grow.

    Part of the problem in ensuring that detainees have access to basic services and legal representation is the lack of uniformity in standards and enforcment of standards in the INS prison system. The INS does not run its ''prison'' system in a coordinated manner: whether a noncitizen is released is largely the discretion of the district director and persons below them in the chain of command. The practice of using state and local jails also raises additional concerns, as these facilities are designed for long-term detention and do not provide the INS with ultimate authority on conditions of detention, visitation policies, lock-down rules, library and telephone usage and other such matters. There have also been reports that asylum-seekers and those with minor offenses are comingled with those who have committed more serious crimes. Different classes of detainees should be kept separate from each other, should undergo different levels of supervision, and should receive different kinds of services.
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    In summary, the current detention mandates are excessive and often inappropriate for many noncitizens who are not dangerous and who have served their criminal sentence. Specifically, the cases of all asylum-seekers in INS custody should be reviewed, with those asylees who establish a credible fear of persecution being considered for release. Immigration judges or independent review panels should be allowed to review the cases of indefinite detainees individually, with clear criteria for release decisions. The INS should apply national standards to state and local jails, as well as INS and privately-run facilities. Finally, alternatives to detention should be encouraged, including supervised release programs and cooperative arrangements with community-based organizations.

CONCLUSION

    As we try to address new issues, we sometimes overreach. It is only human. But, with the benefit of hindsight and accumulating experience, statesmanship demands that we revisit our laws and correct those things that are wrong and unjust. As stated previously, the U.S. Catholic bishops believe that noncitizens who are not dangerous and have committed offenses after entering the United States are often subject to conditions which far exceed fundamental notions of fairness and due process, which separate and destroy families, and which undermine the human dignity and rights of the person. As detailed earlier in my testimony, we offer to the subcommittee the following recommendations:

 Repeal the mandatory detention provisions of the 1996 law and restore the pre-1996 rules to restore flexibility to the system;

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 Give immigration judges the authority to grant release decisions to indefinite detainees. In the alternative, require INS to establish a centralized authority to review these cases and make release decisions.

 Require the release of asylum-seekers after they have established a credible fear of persecution, unless there exist exceptional and compelling reasons for detaining them.

 Require the INS to establish national standards for detention conditions which apply to state and local detention facilities.

 Promote alternatives to detention, including supervised release and cooperative arrangements with local community-based organizations.

 Repeal the retroactivity of the 1996 law as it applies to noncitizens who have committed crimes in the past; limit the definition of ''aggravated felony'' to pre-1996 law; restore 212(c) discretion to immigration judges in removal proceedings so that lawful permanent residents may at least present an application for a waiver of their deportation based on hardship and rehabilitation.

    The 1996 law capitalized on the prevailing fear and insecurity about the nature of immigrants in our country. In fact, noncitizens commit crimes at much lower rates than citizens, and tend to be victims of crime at much higher rates. Immigrants and refugees who come to the United States are by and large law-abiding citizens who contribute to the economic and social strength of our nation.

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    In today's social climate, we have special reasons to study the Bible's positive view of strangers, sojourners, and aliens. Both the Old and New Testaments encourage us to encounter the ''strangers in our midst''—not with fear and negativity—but with compassion and hopeful expectation. The book of Exodus instructs us in these words: ''You shall not oppress an alien. You well know how it feels to be an alien since you were once aliens in the land of Egypt.'' (Exodus 23:9)

    Our nation should be challenged to embody this sentiment in our personal actions, in our response as a community, and in public policy. The public policies we discuss today reinforce the misconception that many immigrants—whether they be permanent residents or in some type of irregular status—are to be considered suspect and feared. As a bishop who ministers to persons of all backgrounds and nationalities, I know this not to be true, and I know you know it is not true. I ask that you heed our recommendations as you consider legislation during the 106th Congress.

    Thank you for the opportunity to testify today.

    Mr. SMITH. Thank you, Bishop DiMarzio. Professor Bean.

STATEMENT OF FRANK D. BEAN, ASHBEL SMITH PROFESSOR OF SOCIOLOGY AND PUBLIC AFFAIRS, POPULATION RESEARCH CENTER, UNIVERSITY OF TEXAS AT AUSTIN

    Mr. BEAN. My name is Frank D. Bean. I am a faculty member at the University of Texas at Austin, connected with the Population Research Center. I am here to talk about the results of a research study that my Center conducted a few months ago to try to determine how many Border Patrol agents would be sufficient to achieve a certain level of effectiveness at the U.S./Mexico Border.
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    We started with the premise that the best available model by which to define effectiveness was Operation Hold the Line in El Paso in 1993, I believe. To determine the number of agents needed to achieve ''Hold-the-Line'' effectiveness, we went to all nine sectors of the Border. We interviewed Border Patrol personnel at all levels in each of the sectors. We toured the sectors. We took into account the nature of the Border at that point, the nature of the terrain, the geography, et cetera.

    We developed our estimate using a task-based approach. That is to say, we looked at what jobs were there that needed to be done by the various kind of Border Patrol personnel, and how much territory they had to cover.

    We built from the bottom up how many agents it would take to achieve the kind of effectiveness that was achieved in El Paso with Operation Hold the Line.

    It was a three-tiered approach. We looked both at agents that are stationed right along the line and at backup agents on those who do airport checks, train checks, and things like that, not right at the Border.

    Finally, the third tier involves check points on highways and so forth that are some distance from the Border and that constitute a final line of defense and check point for detecting unauthorized entrants.

    Then we built up systematically piece-by-piece how many agents we thought that it would take to perform all of these functions along the entire 1,885 mile Border from Brownsville to the California coast.
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    Our final number was approximately 16,000. One important point to note here is we are assuming a level of technology that is commensurate with what the Border Patrol is working with at this point in time.

    It is entirely possible that the number of agents needed would shift downward, if there were substantial improvements in technology. One thing, though, that did come to our attention repeatedly as we talked to personnel on the Border is that whatever the technology, it can never entirely substitute for person power.

    The detection of aliens crossing is not the same thing as the interception of such persons. The entire report, which is some 60 pages, is entered into the written testimony for those who care to examine it, to look at it to get some idea in more detail about exactly what we did.

    The number that we came up with, which in the context of today's discussion may be the most interesting result. It was approximately 16,000 Border Patrol personnel.

    Thank you.

    [The prepared statement of Mr. Bean follows:]

PREPARED STATEMENT OF FRANK D. BEAN, ASHBEL SMITH PROFESSOR OF SOCIOLOGY AND PUBLIC AFFAIRS, POPULATION RESEARCH CENTER, UNIVERSITY OF TEXAS AT AUSTIN
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I. INTRODUCTION

    The U.S. Border Patrol was officially established on July 1, 1924. Its mission is to control the nation's borders by preventing unauthorized crossings, by interdicting individuals who have surreptitiously crossed the border prior to reaching their final destination, and by locating and apprehending those who have successfully reached their final destination after having entered the country without passing through Immigration and Naturalization Service inspection. That mission has become more demanding as immigration and other legal and illegal border crossings have increased, particularly over the past ten years. Emphasis on border enforcement and the apprehension and return of unauthorized crossers to their home countries has increased dramatically due to socioeconomic and political pressures during the 1990s, both in the United States and abroad. One result of these pressures was the Violent Crime and Law Enforcement Act of 1994, which authorized an increase in the number of Border Patrol agents from 4,260 at the end of fiscal year 1994 to at least 8,260 by the end of fiscal year 1998. Since then, new staffing levels have been proposed by the Justice Department (9,859 by FY2000), by Congress (10,859 by FY2001), and by the Office of National Drug Control Policy (12,555 by FY2003).

    Most apprehensions of unauthorized crossers occur along the U.S.-Mexico border. From October 1984 through March 1998, the Border Patrol recorded over 16 million apprehensions in the nine U.S.-Mexico border sectors. This amounted to nearly 1.2 million apprehensions per year over that period. However, there is clear evidence that the numbers of unauthorized crossers significantly outstrip the numbers of annual apprehensions.(see footnote 22) An historical look at apprehensions data beginning in fiscal year 1985 (see Table 1) demonstrates that the high point for apprehensions along the U.S.-Mexico border occurred in fiscal year 1986, immediately prior to the enactment of the Immigration Reform and Control Act (IRCA) of 1986, when an amnesty was offered, under specific conditions, to individuals who were residing in the United States without proper documentation. The amnesty IRCA offered has been cited as a primary reason for the significant decrease in apprehensions during fiscal years 1987–1989. However, as Table 1 indicates, apprehensions began progressively rising again, starting in fiscal year 1990 and continuing through fiscal 1993.
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    The decline in fiscal 1994 coincides with the beginning of a forward deployment strategy, in particular Operation Hold the Line,(see footnote 23) and with the concomitant build-up of the Border Patrol through Congressional mandate. Subsequent to Operation Hold the Line, the San Diego sector implemented Operation Gatekeeper, the Tucson sector implemented Operation Safeguard, and the McAllen sector has implemented Operation Rio Grande. Each of these operations has followed the general strategy of Operation Hold the Line, although different tactics have been employed to adapt the strategy to accommodate the requirements of local situations. A number of pertinent questions arise. First, can an Operation Hold the Line-type strategy succeed along the entire U.S.-Mexico border? Second, if not, why not and, more importantly, what type of strategy is necessary in those areas where the Operation Hold the Line-type strategies might not be successful? Finally, how many Border Patrol agents, and how much support equipment, would be required to implement whatever strategy is most deemed most likely to succeed?

    This report establishes an optimal Border Patrol staffing level for controlling and deterring unauthorized crossings at the U.S.-Mexico border. In order to develop a basis for estimating staffing levels, we interviewed staff at all 9 southwestern sectors and at INS regional headquarters in Dallas, Texas, and Laguna Niguel, California, during the summer of 1998. We also traveled to a total of 12 stations in 6 sectors. We interviewed public affairs staff and Border Patrol agents, ranging in rank from Chief Patrol Agents, the highest grade at the sector level, to journeyman agents, who work on the line. In the 12 stations we visited, we rode along with agents in both rural and urban areas, during the day and at night. During our interviews we discussed factors affecting the effectiveness of Border Patrol Operations, as well as details of sector and station-level staffing and operations. These interviews and site visits to stations provided the bulk of the information we used to generate our staffing model; we believe that agents in the field provide one vital source of accurate information about operational needs. We begin with a general assessment of the factors which influence the effectiveness of Border Patrol operations. We then explain the methodology we have developed to create a model from which we can derive the ideal long-term staffing level for the nine Border Patrol sectors along the U.S.-Mexico border.(see footnote 24) Next, we provide a detailed discussion of each sector, identifying particular features of the sectors that need to be taken into account in determining the number of agents required in that sector. Finally, we present the results of our model, summarize our findings, and discuss certain qualifications that apply to our estimates.
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II. FACTORS INFLUENCING THE EFFECTIVENESS OF THE BORDER PATROL

    Two main factors which affect the success of Border Patrol operations in controlling the border are the magnitude of the flow of persons into this country via other than legal avenues of immigration and the number of personnel available to the Border Patrol to deter, detect, track, apprehend, and deport individuals in that flow. For the sake of consistency, and because this study focuses on the illegal cross-border migration occurring along the U.S.-Mexico border, we will refer to this flow as involving ''unauthorized crossers''.(see footnote 25) The flow of unauthorized Mexican crossers is clearly influenced by the economic situations of the United States and Mexico. Estimates of migrant inflow, derived from various sources including apprehensions data, show a correlation between the flow and the U.S. agricultural harvest seasons. When the American economy is robust and the Mexican economy falters, inflows increase. The fact that per capita income in the United States is roughly ten times that in Mexico is a significant attraction to Mexican laborers. But Mexicans are not the only unauthorized crossers at the U.S.-Mexico border. Every day, Border Patrol agents in most sectors along the border apprehend migrants from all parts of the globe, although most of the crossers are Mexicans. The size of the flow across the border has a significant impact on Border Patrol operations. The large number of unauthorized crossers apprehended places an extensive the strain on available Border Patrol resources. One reason for implementing forward-deployment strategies such as Operation Hold the Line was that the flow of unauthorized crossers was so large that it was overwhelming the sector.

    The collateral factor is staffing. The number of agents available for duty on a given shift at a given station has a direct bearing on how well the station can perform its mission. Stations with responsibility for urban areas directly adjacent to the U.S.-Mexico border cannot effectively employ an Operation Hold the Line-type strategy without a sufficient number of agents to deploy a visible presence all along the line. Sectors which have implemented such operations have had to resort to temporary staffing measures, such as detailing agents from other stations or sectors, mandatory overtime duty, in order to accomplish their missions. However, such measures can only be effective in the short term. In order to be successful over the longer term, appropriate staffing levels must be achieved and maintained.
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    Several other key factors influence how the Border Patrol conducts operations and the effectiveness of those operations. The factors which appear to have the most influence are: proximity and access to the border, the number of routes of egress, area characteristics, border barriers, targets of crossers, border staging areas, and technology.

    Proximity and Access to the Border—There is strong consensus among the individuals to whom we have spoken that proximity and access to the border is the single most important factor influencing border enforcement and control. Essentially everyone agrees that having a presence at the border acts as a deterrent to unauthorized crossers. Furthermore, the closer unauthorized crossers are to the border when they are detected, the easier it is to apprehend them. Therefore, it is vital that the Border Patrol have reasonably rapid access to the immediate area of the border.

    Two factors significantly affect border access. Land ownership is the first. For the purposes of enforcing national immigration policy, federal law grants the Border Patrol access to all land within 25 miles of the border. However, enforcing that law can be complicated. Publicly-owned land is easily accessed. Even areas controlled by cooperatives such as the All-American Canal Authority require little more than a memorandum of agreement, to ensure that area security is maintained. Dealing with private landowners, on the other hand, can be much more difficult. Although private landowners cannot legally deny the Border Patrol access to their land within 25 miles of the border, the Border Patrol must weigh the needs of border enforcement against a desire to maintain good community relations and support. Antagonizing local farmers and ranchers can create more problems for the Border Patrol than having easy access would solve. This problem occurs primarily in Texas, where essentially all of the land along the U.S.-Mexico is privately-owned. Consequently, sectors and stations have established agreements with landowners, some written and some verbal, which define the limits of access and the concomitant responsibilities of the Border Patrol. Conversely, nearly all of the land along the border west of El Paso is publicly-owned. This makes that particular aspect of access to the border much less complicated.
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    The second factor affecting access to the border is infrastructure. In some cases that infrastructure exists as an outgrowth of regional development. El Paso, Calexico, Del Rio, and other towns along the border have constructed that infrastructure as the towns grew. The highway system, which parallels the border between Brownsville and Laredo, came into being to satisfy transportation and commercial needs of the areas' residents. On the other hand, the graded road with parallels the fence in Imperial Beach was constructed for border enforcement purposes. Regardless of the original intent of the infrastructure, it has implications for Border Patrol effectiveness. First of all, well-developed infrastructure enables agents to reach the border, to maintain an active and visible presence along the border, and to respond rapidly and effectively when unauthorized crossers attempt to breach the border. Regions such as those patrolled by the El Cajon station and by the Marfa and Del Rio sectors hamper agents in their efforts to prevent unauthorized crossings because the agents have limited access to the border due to the lack of paved or even all-weather roads.

    Access to the border, or lack of access, implies a number of issues to be considered in deploying agents. First, with limited access to the border, agents are restricted in their ability to deter unauthorized crossings. A visible presence at the border is more difficult. Second, limiting access reduces the ability to respond to warnings (by sensors, cameras, aircraft, etc.) of unauthorized crossings. Third, limited access constrains the Border Patrol in placement and maintenance of technologic aids, e.g., sensors and cameras. Thus, limits on the access of the Border Patrol to the immediate border area require that station chiefs implement strategies other than that employed by Operation Hold the Line.

    Routes of Egress from the Border to the Interior—The number of routes and the various methods of movement available to unauthorized crossers influence agent deployment. More routes of egress mean a greater number of agents must be deployed to observe and apprehend undocumented immigrants along established traffic corridors (highways, railroads, and air terminals). Border Patrol planners recognize that there is no way to completely eliminate unauthorized border crossings. However, they believe that by maintaining close surveillance on established corridors they can create another source of deterrence and apprehend those who manage to avoid apprehension at the border.
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    One strategy the Border Patrol uses to confront the problem of unauthorized crossers who avoid initial apprehension at the border is to watch specific outlets leading away from the border. One method of handling this is the establishment of checkpoints along major highways leading out of the border area. The Border Patrol asserts that the presence of agents at strategic points will induce unauthorized crossers to exit vehicles and attempt to bypass the checkpoints on foot. Putting the migrants on foot slows them down, providing the Border Patrol agents with a better opportunity to apprehend them. Another tactic is to maintain surveillance of railroad properties such as rail yards and sidings. This surveillance generally involves making sweeps through these areas at the time that trains are scheduled to leave the yard or siding. Sweeps are often done in conjunction with railroad security personnel when available. Border Patrol agents also watch airports, observing individuals boarding outbound flights.

    Danger: An issue becoming increasingly important is the danger factor. Agent safety is a major concern of the Border Patrol. In the normal performance of duties, agents have always been subjected to hazardous conditions. In urban areas, particularly prior to the implementation of Operation Hold the Line and similar operations, agents routinely chased unauthorized crossers on foot and in vehicles. Much has been made, in the news media and in human rights journals, of the fact that such chases were dangerous for the crossers and by-standers. However, such chases were also dangerous for agents. Over the years, agents have sustained numerous injuries, from vehicular accidents and from falls while pursuing unauthorized crossers. These injuries have resulted in lost time, which reduced overall station effectiveness, and medical bills paid for by the American taxpayer.

    Outside urban areas, the hazards of patrolling sectors and pursuing unauthorized crossers are even greater. As previously discussed, agents along the U.S.-Mexico border generally operate in unfriendly terrain. Much of the environment is harsh desert while some is mountainous. Except for parts of the San Diego sector, agents must endure extremely high temperatures during the summer months, often with little humidity. Consequently, they routinely confront the hazards of perilous terrain, with its uneven surface and harsh vegetation, deadly animals (snakes, scorpions, etc.), and heat-related medical problems, e.g., heat stroke.
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    In addition to the inherent dangers in the pursuit of unauthorized crossers, agents are increasingly facing the dangers posed by the unauthorized crossers themselves. The intent of Operation Hold the Line and its offspring has been to deter unauthorized crossings, particularly in urban areas. While the operations appear to have been reasonably successful in achieving that goal, the result has been an increase in unauthorized crossing in non-urban areas. Drug and alien smuggling has been on the rise in many of these areas. Drug smugglers have always presented an additional threat to agent safety, over and above the routine hazards of pursuit in harsh terrain. The increase in staffing and the implementation of operations such as Gatekeeper has made unauthorized crossing more difficult to achieve. Coupled with the advent of the IDENT system, Border Patrol operations have made unauthorized crossing more difficult for individuals and alien smuggling more costly to smugglers. The result has been that in many areas, confrontations are becoming more common and more lethal. There have been 81 Border Patrol agents killed in the line of duty since 1919. Eleven of those deaths (14%) have occurred since January 1995.

    The danger factor is one which dramatically affects staffing levels. Many station chiefs have elected not to send agents out on patrol alone during hours of darkness. Armed confrontations are becoming much more common than they were only a few years ago. One very real concern is that as aliens and smugglers become more frustrated by the successful efforts of Border Patrol operations, armed confrontations may become even more common and that alien and drug interdiction efforts may become even more deadly.

    Area Characteristics—The various characteristics of the region of responsibility go a long way toward determining the effectiveness of Border Patrol operations. Operations in urban areas differ dramatically from those in rural areas. Functioning in an urban area can be complicated for Border Patrol agents because of the numerous hiding places and escape routes that may be available. Unauthorized crossers who can rapidly mingle with resident populations create immense problems, e.g., the problems encountered by agents when unauthorized crossers mixed with students at Bowie High School in El Paso.
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    Terrain is another factor which affects Border Patrol operations. However, terrain must be viewed both as a facilitating and as a complicating factor. Flat terrain, which allows for good fields of view and long lines of sight, offers less of an impediment to unauthorized crossers than does mountainous terrain, which is more difficult for agents to monitor and which makes pursuit, tracking, and apprehension more complex. The dry, harsh desert environment is more forbidding and dangerous for unauthorized crossers to traverse, but it is equally hazardous for agents in pursuit and for rescue operations.

    The features of the terrain features differ all along the U.S.-Mexico border. The San Diego sector includes rolling hills in urban areas around the Imperial Beach and Chula Vista stations. Moving east one encounters fairly rugged mountainous areas which are difficult to cross on foot and which allow vehicular traffic to move in the region near the border at not much more than 15 miles per hour. The mountains become even more forbidding until one encounters the flat agricultural region of El Centro's Imperial Valley. This terrain is easy to cross on foot or in a vehicle. This topography continues east, with some mountainous areas, across Yuma sector area and into Tucson sector. However, much of the borderland area east of Yuma is extremely harsh desert and hazardous to cross because of a U.S. military bombing and gunnery range.

    Terrain in the Tucson sector is varied, from the harsh flat desert in the west to the high desert canyonlands in the middle and eastern end of the sector. El Paso sector's landscape is less rugged in that it has fewer severe mountains to cross. Nevertheless, the climate is such that crossing in the rural areas can be extremely dangerous. Marfa is the most desolate sector along the U.S.-Mexico border. The desert is extremely dry, there is little water to be found, and the major infrastructure is several days' hike from the border. Del Rio and Laredo sectors' landscape is not unlike that in Marfa, although it is less mountainous. Furthermore, major highways are closer to the border in those two sectors than in Marfa sector. Finally, the McAllen sector is much more flat, reminiscent of the Imperial Valley of California. The rural areas are predominantly flat farmland, easily crossed on foot.
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    Climate is another crucial feature. Most areas along the U.S.-Mexico border are extremely hot and dry. As a result of heat and little rainfall, vegetation tends to be sparse and inimical to persons traversing the area. It provides little shade from the sun and is often covered with thorns. These climatic conditions create problems for both Border Patrol agents and unauthorized crossers. Widely scattered water sources demand that unauthorized crossers and the agents who track them through the desert must carry water, which is an extra burden whose importance cannot be overemphasized. Persons traveling without water quickly become dehydrated and disoriented, leading to a number of heat-related health problems and deaths. The desert also provides an ideal environment for lethal animals such as rattlesnakes and scorpions.

    Border Barriers—Another factor affecting border enforcement operations is the type of barrier which exists along the border. Whether a barrier exists and to what extent existing barriers function either as an impediment or as a deterrent to crossing will influence the tactics used and the number of agents required to patrol a sector. There are two natural barriers to unauthorized crossings, rivers, and mountains. Rivers serve as an effective barrier where the water flows swiftly, or the banks are steep, or a dam has created a lake that is too wide to swim across. Mountains create a problem for unauthorized crossers in that traversing them demands more strength and endurance than crossing flat land. In fact, mountains tend to funnel trekkers through valleys and canyons.

    Man-made barriers generally come in the form of fences and canals. Fences, have been built in many of the urban areas, slow down aliens who attempt to cross the border directly into an urban area where they can quickly intermingle with local residents and avoid apprehension by Border Patrol agents. Fences also have been used to stop vehicular crossing at points other than designated points of entry. The real intent of fence-building is to force people around the urban area toward the areas which afford Border Patrol agents more time to track and apprehend them. Canals, which have been built for irrigation and flood control purposes, also serve as barriers to unauthorized crossing. Generally, canals are swift flowing to ensure adequate water pressure for irrigation purposes. They generally are maintained at widths and depths which, in conjunction with the rapid flow, creates a serious obstacle to people who wish to cross them. In some cases, the treacherousness of the canals successfully forces unauthorized crossers to circumvent them, but they are never 100 percent effective in stopping alien traffic.
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    From the Port Isabel station on the Gulf of Mexico to El Paso, the Rio Grande forms a natural barrier. In some areas, the river is wide, deep, and swiftly flowing, forming a formidable obstacle. In other areas, it is narrow, very shallow, and/or barely flowing, providing virtually no hindrance to crossing. In some places, the embankments along the river are sufficiently steep to be impenetrable. In other areas, that is not the case. Two lakes, Amistad and Falcon, formed by dams along the Rio Grande, create a major hurdle for unauthorized crossing. Although it is possible to cross those lakes, the Border Patrol has found that few people actually attempt unauthorized crossings over those bodies of water, at least at present.

    The Rio Grande turns north in El Paso and no longer runs along the border. To the west, the only natural barrier delineating the international boundary is the Colorado River which separates Arizona from Mexico south of Yuma. Man-made barriers have been erected in several locations. The most formidable, in terms of its capability to impede unauthorized crossings, is the All-American Canal which runs through the Imperial Valley of California. Twenty yards wide and twenty feet deep in some places, the canal is dangerous to cross and presents a major obstacle to crossers. The canal is designed to flow swiftly for the purpose of maintaining water pressure for feeder canals and irrigation ditches. As a consequence, persons attempting to swim across must be strong swimmers. The El Centro sector reports that many people drown in the canal each year. This is also true of the canal in El Paso. Border Patrol agents in El Paso report that more drownings occur in the canal which parallels the Rio Grande than occur in the river itself. However, as with other barriers, canals do not deter all crossers. There are bridge-like dams along the canals which are used for canal maintenance, and unauthorized crossers attempt to use these whenever possible, although they are fenced.

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    In some places along the border, the international boundary is marked only by monuments (concrete pillars) at various intervals. In other places, the boundary barrier consists of a barbed wire fence which apparently intended only to stop cattle from crossing the border. More substantial fences have been erected by the Border Patrol in an attempt to deter, or at least attenuate, unauthorized crossings. Chain-link fences have been installed in various urban locations along the Rio Grande as added barriers. These have most often been located along the port of entry bridges to prevent individuals from walking across the bridge and jumping off immediately prior to the immigration station. In El Paso, chain-link fencing has also been employed along the Rio Grande as a second barrier. Immediately west of El Paso, the Border Patrol has erected a 14-foot high expanded-metal fence designed to hinder crossing between San Cristobal Mountain on the east and a large hill 1.5 miles to the west. In addition an agent is posted on top of the hill to watch for and deter potential unauthorized crossers.

    In Douglas, AZ, the Border Patrol has installed a 12-foot high steel security fence directly along the border. This fence runs the length of the urban area, but agents must still patrol the line to deter individuals from climbing over or cutting through the fence. In Nogales, AZ, a military airfield landing mat fence has been built on either side of the downtown area, while a steel-reinforced concrete wall has been built in the downtown area adjacent to the port of entry. In Calexico, CA, a chain-link fence separates the urban area from Mexicali, BC. That fence must be constantly patrolled and repaired, as people try to cut their way through it on a daily basis. Finally, in San Diego, a 14-foot-high military landing mat fence runs 14 miles along the border, beginning in the Pacific Ocean off Imperial Beach. That fence is part of a four-tier fence system in some places. In addition, the approximately 6.5 miles of the normally dry Tijuana River bed serves as an added barrier.

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    Border Staging Areas—Border enforcement strategies must also consider the number and size of border staging areas. As previously stated, one of the main factors affecting Border Patrol operations is the flow of unauthorized crossers. Populated areas near the border facilitate the flow of unauthorized crossers by providing them with places to obtain food, lodging, temporary employment, and transportation. Large metropolitan areas are particularly well suited to support the migratory efforts of unauthorized crossers.

    Table 2 lists the major Mexican cities, and their populations,(see footnote 26) which are along the U.S.-Mexico border and the corresponding city on the U.S. side of the border. As Table 2 indicates, there are nine Mexican cities with a 1995 population in excess of 100,000 people. Current estimates suggest that three more have joined that group. Moreover, these official census numbers are probably significantly lower than present population levels. Many of the cities have become magnets to migrants forced into relocating due to problems in the Mexican economy. Migrants move north to find jobs in the maquiladoras along the border and sometimes use those jobs as a steppingstone towards further migration into the United States. In some cases, the maquiladoras merely serve as places to earn money to finance migrations, decisions about which have already been made. In other cases, individuals working in maquiladoras learn skills which they can apply in the United States at substantially higher wage rates.

    What is most important about these cities is that they provide potential unauthorized crossers access to information networks. Alien smugglers gravitate to larger cities where there are more potential migrants. Concurrently, potential unauthorized crossers gravitate to those cities in search of ways to cross the border. Information flows quickly through these cities, and migrants are readily able to locate smugglers to facilitate entry into the United States.
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    Targets/Purposes of Crossers—Yet another influence on the operations of the Border Patrol is the ultimate purpose of unauthorized crossers. In some cases, crossers are seeking employment in the immediate vicinity. This makes controlling the border in places like El Paso and Brownsville different from other areas. Many people cross the border daily to work in El Paso and Brownsville. In most other areas, such as Nogales and Douglas, the attraction is not the city itself but the routes of egress available in the city. Thus, Border Patrol agents must not only concern themselves with apprehending long-distance migrants, but also with daily labor commuters. The same is true of farming communities. Border Patrol agents have to adjust their tactics based on whether unauthorized crossers are seeking local employment or are merely seeking routes (railyards, highway pick-up points, bus or air terminals, etc.) to other interior employment opportunities.

    Another issue is the question of whether the unauthorized crossers are migrants or whether they are drug runners. Although the number of drug runners is apparently quite small in comparison to the number of labor migrants, the prospect of encountering drug smugglers exists. In fact, stations officials interviewed during the study indicated that drug smuggler apprehensions were increasing, both in terms of numbers of cases and in terms of quantities and dollar values of seizures. The differences in tactics employed by drug smugglers and the expectation of armed confrontation affect the manner in which station chiefs deploy their resources. For example, in some stations, patrol agents in charge have mandated that, for officer safety reasons, agents deploy in teams during hours of darkness.

    Technology—One final factor influencing Border Patrol operations is the availability of technologically advanced equipment. The Border Patrol has come a long way from the days of tracking unauthorized crossers on horseback. Sensors, 4-wheel drive vehicles, aircraft, night vision equipment, low light cameras, television cameras, infrared scopes, and drug- and people-detecting dogs all enhance the effectiveness of the Border Patrol. This is not to say that ''sign cutting,'' the art of tracking of individuals on foot by following footprints in the ground, has been abandoned. In fact, in rural areas as well as smaller urban areas, sign cutting is still the primary method of tracking unauthorized crossers. Some technologically advanced equipment is used to augment that effort. Sensors, magnetic, seismic, etc., are strategically placed along known and suspected routes of travel. The sensor, triggered as migrant traffic passes nearby, electronically transmits a signal to a listening post, usually at sector headquarters. The individual monitoring the sensors then alerts agents in the field that a sensor ''hit'' has been recorded, how many ''hits'' were registered, and the sensor number (from which the agents can identify the location of the sensor). Depending on the location and how long it takes to respond to the location, agents can either move to intercept the traffic or go to the sensor area and begin searching for tracks.
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    Four-wheel drive vehicles enable agents to travel off-road and more rapidly move through rough terrain than they normally would be able to on foot. Because of their size and ruggedness, they facilitate tracking and transport of apprehended persons. Aircraft, flown by qualified Border Patrol agents, enhance tracking and location capabilities as well. Helicopters in particular are useful in rural areas. Aircraft patrol areas in search of unauthorized crossers and also respond to calls for assistance from other agents. When agents on the ground begin tracking unauthorized crossers, airborne agents can fly ahead along the suspected route of travel in order to facilitate the ground search. For example, a good helicopter pilot-agent can cut sign and determine that the crossers have passed over a road some distance ahead of the ground-based agents. That allows the ground-based agents to move forward in their vehicles, saving valuable tracking time. Aircraft patrols also serve as a deterrent to unauthorized crossings and to delay people on the move. Several agents remarked that crossers will stop and hide to avoid detection when they hear an aircraft. This allows agents on the ground to close the distance gap, even if the aircraft does not spot the crossers. Night vision equipment enhances operations during hours of darkness. Both ground-based and airborne night vision equipment is available. This facilitates both observation of unauthorized crossings and tracking at night.

    Visual equipment such as low light, television, and infrared cameras are used wherever it is available. Some of this equipment, which allows agents to monitor large areas (depending on terrain), is mounted in fixed locations. Mounted on 60-foot poles, the cameras' signals are fed into a central location where agents can monitor the viewing area. The equipment has the capability to be swiveled around, panning the area in search of unauthorized crossers. It also has zoom capability, allowing the agent to obtain a closer view once a crosser has been spotted. The combination of camera capabilities allows for monitoring an area in all light conditions. Other equipment is mounted in the rear of vehicles to add a mobile capability. Mobile equipment is staffed in the vehicle by the individual agent. Thus, agents are able to move equipment into temporary locations, changing positions from shift to shift to meet the demands of the situation. Infrared scopes are in use in aircraft, extending pilot-agents' capabilities. One drawback of the infrared equipment is that it has problems when ambient air temperatures roughly equate to body temperatures. The equipment has trouble distinguishing bodies in high desert heats. A final technological asset is drug- and people-detecting dogs. These animals are highly trained and capable of detecting various types of drugs.
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III. METHODOLOGY UNDERLYING THE ESTIMATION

    This section describes how we calculate the number of Border Patrol agents needed to control the southwest border, using our earlier evaluation of Operation Hold the Line as a baseline.(see footnote 27) This section describes the assumptions underlying our methodology and the details of our calculations. It also walks the reader through a calculation of agents needed in El Paso Sector, which provides our baseline for calculations in other sectors. The next section of the report will discuss El Paso and the other eight southwestern sectors in more detail, and provide results from our calculations.

    The following 10 assumptions underlie our staffing model, and most were generated from conversations with agents:

    (1) Sector and station-based staffing model: We use the existing structure of 9 sectors and 73 stations along the southwest border as the basic framework for our model. There have been recent realignments in the number of stations, as well as their areas of coverage; however, it is not the purpose of this report to make recommendations regarding sector or station-level reorganization.

    We essentially use a task- or function-based approach to building our staffing estimates. Many functions are based out of the sector headquarters or out of the stationhouse. As we interviewed agents in the field, we found a variety of tasks which are performed in some sectors but not others, or in some stations but not others. We estimate a floor level of staffing which would allow sectors and stations to cover these basic tasks. As a result, we have allocated a significant number of staff to sector headquarters and to stationhouses, regardless of whether they cover large or small amounts of territory, urban or rural settings, or difficult or easy to patrol areas. The estimates thus allow Chief Patrol Agents at sector headquarters and Patrol Agents in Charge at stationhouses some flexibility in allocating agents without having to pull agents off the line.
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    (2) Details: Currently, agents are pulled off the line so they can be detailed to other assignments. There are a wide variety of important tasks performed by detail agents, and we make no recommendation to change this practice. However, we build in estimates of the total numbers of agents needed for details, so that full staffing on the line can be maintained at all times. Therefore, in our model we differentiate between ''full time'' and ''detail'' positions, which are essentially 40 hour per week positions, and ''shift'' positions, which must be staffed 24 hours per day, 7 days per week. Our calculations for full-time/detail and shift positions are described in detail below.

    (3) Control in urban areas: Operation Hold the Line in the El Paso Sector is the baseline for our model of urban area land staffing. According to the Hold the Line model, a number of agents in high visibility positions significantly deter aspiring crossers. As of summer 1998, we estimated that the El Paso Station's urban area averages three agents per mile, as we discuss later in the report. At the onset of Hold the Line in 1993, however, El Paso placed nearly twice as many agents per urban mile on average.(see footnote 28) Similarly, the Brownsville Station began Operation Rio Grande with an average of eight agents per mile in September 1997, but now deploys an average of four agents per mile covering the same urban territory. Based on these experiences, we differentiate between the number of agents needed to ''get control'' and the number needed to ''maintain control'' in urban areas. As a rule of thumb, it takes twice as many agents per mile to get control as to maintain control.

    During our interviews we heard that most of the urban territory along the border in El Paso and San Diego Sectors is currently under control; significant drops in apprehensions in these sectors since Operations Hold the Line and Gatekeeper began support this assumption. We also heard that most of the urban territory covered by McAllen and Laredo Sectors are also under control, due to Operation Rio Grande; we cannot use apprehensions data to verify the level of control in McAllen and Laredo, however, because it is less than one year since Operation Rio Grande's inception and not enough time has elapsed to see the results in the apprehensions data available to us. But, we assume that ''maintain control'' staffing levels are needed along the line in the urban areas of Laredo and McAllen Sectors as in El Paso and San Diego. We assume that the higher ''get control'' staffing levels are needed in other sectors' urban areas.
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    (4) Terrain and safety in urban areas: Terrain and officer safety are equally, if not more, important than the level of control in determining staffing needs in urban areas of the border. Where there is no river or other barrier to slow down aspiring crossers, greater staffing intensity is necessary. Moreover, where there has been more violence against agents, or where visibility is reduced by thick vegetation, hills or canyons, greater staffing concentration is also necessary. In many urban areas, it is necessary to send out agents in pairs, or within sight of each other at all times, in order to sustain agent safety. As a result of differences in terrain and the level of control, our ratio of line agents per urban mile ranges from 3-to-1 in El Paso to 12-to-1 in San Diego. It is important to note that the actual deployment of agents is not a rigid agent-per-mile formula, nor do we recommend that it should be; our numbers merely suggest urban staffing levels on average. The details of urban-area line staffing will be discussed, sector-by-sector, in the next section of the report.

    (5) 3-tier strategy in urban areas: Originally, Operation Hold the Line deployed almost all of El Paso Station's agents forward to the line. Later Operations in other sectors have adopted 3-tier strategies, in which the first tier consists of agents placed at or near the line in urban areas. The second tier consists of a combination of back-up patrol and transportation units. Back-up patrols include neighborhood, bus terminal, airport, railroad yard, highway and bicycle patrols; the types of patrols deployed vary significantly among the stations we visited. All sectors, however, use helicopters and fixed-wing aircraft as a component of back-up in both urban and rural areas. But a common theme is that these second-tier patrols are important to ensure the apprehension of most, if not all, crossers who are not deterred by the agents in the highly visible line (first tier) positions. Back-up agents are also necessary to take apprehended crossers to stationhouses for processing with the IDENT system. IDENT is not mobile; satellite-link technology is currently inadequate to ensure timely processing in the field. Therefore, adequate numbers of second-tier agents are essential to ensure that no first-tier agents are removed from the line for transport or processing.
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    The third tier, consisting of checkpoints on all major and minor highways leaving the border for the interior of the United States, is equally if not more important than the line in deterring unauthorized crossings. Agents we interviewed told us that Border Patrol intelligence has found people waiting to cross in Mexico border towns when checkpoints are up, and then crossing when they come down. We therefore include 24-hour staffing of all existing checkpoints in our sector-by-sector estimates.

    (6) Maintaining control in rural areas: During our site visits we saw no evidence that Hold the Line type operations would be necessary, appropriate, or economically feasible in rural areas along the southwest border. Instead, agents recommended a more ''traditional'' approach to patrolling rural areas, using a combination of responding to sensors hits; spotting crossers from the air or along roads; tracking crossers using ''sign-cutting'' techniques; and responding to calls from other law enforcement agencies and the public. The goal in rural areas is to ensure a high likelihood of apprehension after crossing rather than to visibly deter crossing by placing agents along the immediate border. A Hold the Line type strategy, with several agents per mile, would require hiring thousands upon thousands of new agents. A more traditional approach to deterrence and apprehension would be far more efficient and less costly. Nonetheless, our recommended staffing levels still dramatically increase the number of agents in all rural areas of the southwest border; in fact, the bulk of the new agents required under our staffing plan would be placed in rural areas. Increased staffing in rural areas is critical both because current apprehension patterns suggest levels of unauthorized crossing in rural areas is increasing, and because most large-scale drug smuggling occurs in isolated, rural areas.

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    (7) Terrain and safety in rural areas: In rural areas, agents often travel in pairs for safety; we recommend they do so at all times. Most of the incidents of serious assaults on agents (i.e., with firearms) occurred in rural areas. Terrain can make patrolling rural areas even more dangerous: thick vegetation, hills, and canyons reduce visibility and offer more hiding places for smugglers. But usually the most difficult terrain—desert, mountains, steep canyons, and thick brush—slow down smugglers and unauthorized crossers as well as Border Patrol agents.

    The most important factor we found in determining agent staffing needs in rural areas is the time agents have to catch crossers after they are spotted by someone or set off a sensor. Agents told us that most crossers hire smugglers in rural areas because the terrain is so difficult to cross. People walk to major highways, railroads, towns or cities, where smugglers have made arrangements for them to be picked-up and taken to their final destination. According to agents, people walk an average of 2 1/2 miles per hour in most areas along the southwest border, although steep or rough terrain and thick vegetation may slow them down. Given this walking speed, we computed that agents have 2 hours or less to respond to crossers in areas where it is 5 miles or fewer to the nearest major highway, railroad, town or city. In these areas, we determined it takes one vehicle with two agents to patrol every two border miles, or on average 1 agent per mile.. For example, agents told us they would deploy two agents on each side of every known crossing point along the lower Rio Grande Valley; these crossing points averaged 4 to 5 miles apart.

    Along the majority of the southwest border, however, it is 20 miles or more to the nearest main road or town. We calculate that 20 miles (between eight and 10 hours of walking time) is the longest distance crossers could be expected to travel in a single shift, or a single day. Agents told us along much of the border they have two or 3 days to apprehend people before they can reach an intermediate destination. We calculate that it is roughly one-tenth as difficult to patrol rural areas with 20 miles or more travel distance than those with 5 miles or less, because agents have more than one shift (and probably an entire daylight shift) to track and apprehend people. Therefore, we staff these ''easy to patrol'' rural areas at two agents (1 vehicle) per 20 miles, or one agent for every 10 miles.
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    We also have a category of rural areas which are in the ''medium'' category: those where mileage to the nearest road, railroad, town or city is between five and 20 miles. Here, we estimate that agents have between 2 hours and an entire shift to track and apprehend people. We staff these areas at half the level of the ''easy to patrol'' areas, or one agent every 5 miles.

    (8) Back-up, transport and processing in rural areas: In most cases we observed, rural patrol agents are part of units or half-units of four or 8 agents. Large numbers of agents need to be within a short drive, because rural patrols often encounter groups of 40, 50 or even 100 immigrants being smuggled into the country. In these cases, several agents are necessary both to control groups who have been apprehended and to transport and process them. In drug smuggling cases, several agents need to be within radio contact distance in case a large and well-escorted load of narcotics is encountered. Air patrols—by helicopter or fixed-wing aircraft—are even more effective as back-up in rural than in urban areas.

    Transport distances are huge in most rural station areas. In one rural area we visited, it was a 90-mile drive from the stationhouse to the border in each direction. In this area, it would take 3 hours—nearly half a shift—to transport a single group of apprehended immigrants from the border to the stationhouse and return. Again, because of the IDENT system, it is essential to transport ALL apprehended immigrants to the stationhouse for processing. Moreover, drug and immigrant smuggling cases often take several hours to process, and are consequently more staff-intensive than apprehensions not involving smuggling or narcotics. Rural stations are likely to see a rising share of cases involve smuggling, and therefore must be able to devote staff to processing and paperwork. Our estimates include an entire 8-agent unit dedicated to transport and processing for every rural station, no matter its current level of apprehensions.
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    (9) Technology as a complement, not a substitute: The Border Patrol is currently building its technological capability in addition to its officer corps. Stations we visited had implemented varying levels of new technology, including: infrared scopes for night patrols (Loriscopes and Forward Looking Infrared); camera systems, linked by wire or by microwave to remote viewing locations (usually communications centers in stationhouses); and several types of sensors, linked to station or sector-level ICAD computer terminals. Additionally, some areas along the line had new fencing and lighting to enhance deterrence. In urban areas, technology helps deter crossers by improving Border Patrol visibility, especially at night. In rural areas, technology is especially important in finding crossers before they have traveled to far into the interior: most agents said the combination of sensors and infrared scopes have improved rural patrolling immensely, even though ''sign-cutting'' (following tracks) continues to be an effective method to find and apprehend unauthorized crossers.

    Technology cannot, however, replace agents on the line or on rural patrols. In the words of one agent, ''a camera cannot pursue or apprehend anyone.'' They also have limited deterrent capability in urban areas; aspiring crossers are only deterred so long as they associated a camera or a well-lit area with an agent's presence. Agents are needed to respond to crossers identified by cameras, scopes, and sensor hits; agents are also needed to transport and process apprehended people. IDENT, despite its usefulness as an enforcement tool, has added slightly to agents' processing time, not reduced it. Additionally, cameras, sensors and other equipment must be monitored, maintained, moved, replaced and upgraded continuously, if they are to be effective.

    (10) Border Patrol officers assigned to 3-tier strategy along southwest border only: Our estimates include only the staffing necessary to implement effectively the 3-tier strategy along the southwest border, including: (1) line agents in urban areas and patrol agents in rural areas (2) back-up, transport and processing agents in both rural and urban areas; and (3) checkpoint agents. The only other agents included in our analysis are the full-time and detail staff necessary to perform basic functions at sector headquarters and stationhouses, as well as academy and post-academy staff necessary for new agent training. Staff required for interior enforcement and enforcement along the coasts and on the northern border with Canada are excluded from our analysis.
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    Furthermore, we consider the Border Patrol agent's job to end as soon as a person is apprehended and processed, or a narcotics load is seized and handed over to the appropriate drug enforcement agency. We assume that all prosecutions, criminal investigations, detention, and transport functions (after processing) involving cases of undocumented crossers are performed by the INS agents or other federal, state and local agencies, but not by the Border Patrol. Similarly, we assume that all similar functions for drug smuggling cases are performed by Customs, the Drug Enforcement Agency, and state and local law enforcement. We do not include any staffing for worksite enforcement either, on the assumption that other INS agents are performing this task.

    Finally, within the Border Patrol, our model excludes all administrative, maintenance and communications functions. In most sector headquarters and stationhouses we observed, these functions were performed by civilian staff, not agents. Examples of functions not performed by agents include: radio dispatch; reception and clerical; computer operation and software development; camera and sensor monitoring; camera and sensor repair; and vehicle, aircraft and general maintenance. Intelligence research and public affairs functions are performed by a combination of civilians and agents, so minimal officer staffing is required in these areas.

    The Staffing Model: Here we develop our staffing model, step by step, using El Paso Sector as an example. As we discuss this model, we refer to Figure 1, which shows the staffing tree for the typical Border Patrol sector and station. We also refer to Table 3, which shows our estimates of agent requirements for El Paso and the other eight border sectors. Table 4 shows the data underlying our estimates in Table 3 (please refer to Table 4 along with Table 3 while we discuss the methodology for El Paso's estimates). Before we begin our discussion of staffing in El Paso Sector, we define a few important staffing terms. First, ''full-time'' and ''detail'' positions are positions that are 40 hour per week positions, assigned on a per-sector or per-station basis. Second, ''units'' in our estimates include eight agents, one of whom is a supervisor. The standard ratio for supervision in the Border Patrol is 1-to-7, and therefore we use units of eight on average to generate our estimates. The other seven agents may be senior, journeyman or trainee agents. The only exception is pilots; we estimate pilot numbers based on average units of six, for reasons we discuss below. Actual unit sizes range up to 10-to-12 agents in some stations we visited; however, we feel the optimal unit size is eight in order to preserve the 1:7 ratio. Third, we define ''shifts.'' Other than detail positions and special units, most agents are assigned to positions which must be filled 24 hours per day, 7 days per week, 365 days per year. According to our calculations, it takes 5.02 agents to fill each position 24 hours per day, 365 days per year. Appendix A explains in detail our the calculations of days off, annual leave, sick leave and holidays we used to produce the ratio of 5.02 agents per 24-hour position. When we multiply the number of agents in a unit (8) by the number of agents required to staff a position 24 hours per day, 365 days per year (roughly 5), we come up with 40 agents required for a 24-hour per day unit. Thus many of the numbers in our calculations are multiples of 5, 8 and 40. Finally, we calculate line agents, in both rural and urban areas, on a per-mile basis. Our final numbers do not correspond exactly to units (multiples of 8), but it is our recommendation that staffing be implemented on a per-unit basis, to the degree possible.
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    Sector headquarters:

    Each sector headquarters includes full-time positions for the Chief Patrol Agent, Deputy Chief Patrol Agent and Assistant Chief Patrol Agents (ACPAs), as senior supervisory staff. The number of ACPAs depends on the number of stations; we assigned ACPAs based on the number of stations in the sector, divided by 2. In our interviews, we learned that ACPAs rotate supervision of stations, as well of other tasks such as public affairs, computer services, maintenance, personnel, budget and air operations. For example, in El Paso there are 12 stations, so we calculate six ACPA positions.

    For each sector headquarters, we also include two full-time details for public information officers and for ongoing training for experienced agents. We include details for post-academy training for trainees during their first year on the job in Section 5 of this report. We calculated them based on the number of trainees each year, not on a per-sector basis. We do not include other positions for sector-wide responsibilities such as computer services, maintenance, personnel and budget; we consider these to be civilian (non-agent) positions.

    Air operations:

    We base air operations at the sector headquarters, although they may be located somewhere else in the sector. Most sectors base pilots and aircraft maintenance out of one location. We assign the same number of pilots to each sector, based on the assumption that both rural and urban areas have needs for aircraft. In fact, it may be that more aircraft should be assigned to sectors with more rural miles to cover.
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    We staff air operations based on units of six pilots per shift, times five shifts for 24 hour coverage (for a total of 30 pilots in each sector). Pilots we interviewed told us that they fly alone during the day, but there are always two pilots at night per aircraft, for safety reasons. At night pilots wear night vision goggles (NVG), and if one pilot's NVG fails, the other pilot must take over immediately. Also at night, the second pilot generally operates forward-looking infrared (FLIR) equipment, which is used to spot traffic from the air. Therefore we assign four pilots during daylight hours and eight pilots during night hours, for an average of six pilots per shift.

    The helicopters most commonly in use in the Border Patrol currently are OH–6s, which have about a 2-hour range. Other helicopters and fixed-wing aircraft have a longer range, and pilots may be in the air for more than 2 hours. If each pilot is on 2 hours and off 2 hours for a total of 4 hours air time per shift, then 4 pilots per shift during the day and 8 at night will yield a minimum of 2 helicopters or fixed-wing aircraft in the air at all times.

    All stations:

    Each station includes the Patrol Agent in Charge (PAIC) and Assistant Patrol Agent in Charge (APAIC) as senior supervisory staff. Additionally, most of the larger stations we visited have Watch Commanders or Field Operation Supervisors (FOSs). The FOS makes staffing assignments, monitors intelligence and oversees station operations on each shift. We assign one FOS per shift per station, or five FOSs per station, on the assumption that each shift will be large enough to warrant an FOS once all stations are fully staffed. In El Paso Sector there are 12 stations, so there are 12 PAICs, 12 APAICs and 60 FOSs in our estimates.
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    Each station also has the following details: intelligence (2 agents per station), sensors (2 agents) and special projects (one agent). Intelligence agents analyze and disseminate intelligence, but it is collected through a variety of activities undertaken by all agents, including: responses to sensor hits, observations, counts of tracks, and counts of deterred crossers. Sensor crew agents place and remove sensors according to maintenance needs and traffic estimates. While sensors may be maintained by civilians, they must be placed by agents, who have sufficient knowledge of station operations and traffic movements. Special project agents negotiate contracts with other public agencies and private entities. For example, they may negotiate land use agreements local landowners for sensor placement or access to border roads. Although civilians may conduct some of this work, an agent who is familiar with station operations must be involved. In El Paso there are a total of 12 stations and therefore 12 detail positions on special projects and 24 detail positions each on intelligence and sensors.

    Some stations have flexible response units or ''anti-smuggling units.'' We heard that these units ''lay in'' and wait for smugglers in known drug traffic areas. They also provide reinforcements for line agents during peak traffic hours, which may not correspond exactly with shift changes. Or they saturate an area where traffic has peaked temporarily because immigrant smugglers are testing the station's defenses. Additionally, some stations in both rural and urban areas have horse, motorcycle and/or all-terrain vehicle (ATV) patrols. Similarly, these units provide reinforcements for special operations and peak traffic areas.

    We assigned each station one flexible response/anti-smuggling unit (i.e., 8 agents per station) and one horse/ATV/motorbike unit (also 8 agents per station). Stations may use these units for special operational needs, without reducing the number of agents on the line or on patrol duty. In El Paso there are 12 stations, so we assign a total of 96 flexible response/ASU and 96 horse/ATV/motorbike units to the sector.
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    Urban line stations only:

    We divide urban line miles into ''easy,'' ''medium,'' and ''hard'' areas to patrol, based on the terrain, density of traffic, and degree of control already established by the Border Patrol. El Paso Sector includes about 22 miles of urban area, including 20 miles in El Paso and Ysleta Stations in Texas, and 2 miles in Sunland Park, New Mexico.

    El Paso currently requires the lowest level of effort per mile of any urban area along the southwest border for two main reasons. First, El Paso has had most of its urban territory under control since 1993, almost 5 years. Second, the terrain in El Paso largely works to the Border Patrol's advantage. Most of the urban area in El Paso is flat, with little or no vegetation to cut visibility. Agents can see each other up to 1 mile apart. There is good access to the border area via roads along levees. And there are two or three barriers in most places, including fencing, the Rio Grande River and a new and very dangerous canal, in which several crossers have died already during 1998. As a result of good visibility and these barriers, the El Paso Sector is able to maintain control of its 22 urban miles with an average of 3 agents per mile. With 66 agents per shift required, times the shift multiplier of 5.02, we estimate that 331 agents are necessary to continue the current level of effort in El Paso's urban areas. Note that we round line agents to the nearest single agent, not to the nearest unit of 8.

    In urban line stations, we provide 3 additional units per shift: (1) bicycle patrol, (2) highway/bus/train/airport check, and (3) back-up/transport processing. These 3 units provide the second tier or back-up for line agents, 24 hours per day, 365 days per year. Almost all urban line stations we visited used bicycle patrols, and agents said they are extremely productive. Second tier defenses at major transportation lines are also very important both to provide an additional deterrent and to provide intelligence on the numbers of people evading the first tier of defense on the line. Finally, back-up and transport agents are important to handle large numbers of apprehensions, as mentioned earlier. We give each urban line station a full unit (8 agents) per shift, for a total of 40 agents per urban line station in each of these categories. El Paso Sector would be staffed with 120 agents (based on 3 line stations) each for bicycle patrol, transportation check, and back-up/transport/processing.
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    In urban line stations, we assign 1 additional agent on a detail to fences, lights and cameras. Although maintenance and repair of fences, lights and cameras is performed by civilians, an armed agent must be present to protect their safety. We heard that cameras and lights are frequently shot out in some urban areas along the border. Our estimates give El Paso Sector 3 agents—1 per urban line station—for details to this assignment.

    Details perform another valuable function in urban stations: they relieve the boredom agents experience while working the line. Because so many urban positions are fixed or limited to small areas of responsibility, agent fatigue can be a major factor in operational success. Both San Diego and El Paso sectors use details to relieve agent fatigue and boredom.

    Rural line stations only:

    El Paso Sector has a total of 289 line miles, 22 of which are urban miles, and 267 of which are rural miles. As mentioned earlier, urban miles are calculated based on areas in which people would have immediate access to roads, trains, residential neighborhoods or other urban settings as soon as they crossed. It is assumed that agents have time to respond to sensor hits and other indications of crossing in rural areas. Forty-five or El Paso's rural miles are considered hard to patrol, because they lie along the Rio Grande River southeast of El Paso, with Interstate 10 less than 5 miles away. Another 25 miles farther south are considered of medium difficulty, because Interstate 10 bends north here, leaving the river border between 5 and 20 miles away. The remaining 197 rural miles in El Paso Sector are in the New Mexico desert or farther downstream along the Rio Grande in Texas. These areas are for the most part extremely isolated, with more than 20 miles from the border to the nearest road of any consequence.
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    We assign 99 agents to the 197 ''easy to patrol'' miles, based on one agent per every ten miles (just under 20 agents) per shift, times 5 shifts. We assign 25 agents to the 25 ''medium'' rural miles, based on 5 agents per shift (1 agent every 5 miles), and 226 agents to the 45 most difficult miles, based on one agent per mile per shift (45 X 5.02 = 226).

    We assign an additional 60 agents to cover 3 rural ports of entry along the border in El Paso Sector. Agents told us they need 2 agents on each side of each bridge or gate at all times to prevent port-running and bridge jumping. This computes to 4 agents per shift times 5 shifts, or 20 agents per rural port. We do not assign additional agents to ports of entry in urban areas, because of the high concentration of agents already there in Hold-the-Line type operations.

    Rural line stations also need agents for back-up, transport and processing. As mentioned earlier, the distances from the border to rural line stations is often very long, making transportation agents essential. We assign one unit (8 agents) per shift to each rural line station. There are 4 rural line stations in El Paso; we assign a total of 40 agents (5 X 8) to each station, for a total of 160 back-up agents for rural areas.

    Checkpoints only:

    Checkpoints are vital as the third tier of defense and deterrence for unauthorized crossings; they also account for a large share of all drug seizures along the southwest border. We assign a minimum of 8 agents to every checkpoint which the Border Patrol has established along the southwest border. It requires at least 3 agents to operate a checkpoint: (1) an agent ''on the point,'' who visually inspects each vehicle as it passes; a (2) back-up agent who takes over the point position if the point agent pulls over a vehicle to inspect it; and (3) a processing agent to check vehicle registration plates and process people who are pulled over and apprehended. It takes an additional 4 agents to patrol the surrounding countryside for people who are trying to evade the checkpoint. The purpose of checkpoints, several agents told us, is to force unauthorized crossers out of their vehicles onto their feet, so they are easier to apprehend. One 2-agent team must be available on each side of each checkpoint to apprehend those evading the checkpoint. Finally, a supervisor is necessary for these 7 agents, compelling a full 8-agent unit per shift for every secondary road checkpoint.
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    More agents are required for larger checkpoints. Each additional lane requires 2 additional agents, one extra ''point'' and one extra back-up agent. Therefore, four-lane highways (Interstates and other large primary highways) require 2 additional agents to work the highway. We also allocate an additional 2 agents to processing because of the higher traffic on Interstates and other primary highways. Therefore, each primary checkpoint is allocated 12 agents per shift.

    El Paso Sector currently operates 5 checkpoints on 2-lane highways and 3 checkpoints on Interstates and other 4-lane highways. We assign 200 agents to cover the 5 secondary checkpoints and 180 agents to cover the 3 primary checkpoints, to ensure all checkpoints are able to remain open 24 hours per day, 265 days per year.

    Agents also told us that trained dogs and handlers are very useful in vehicle stops. The initial decisions to pull over and search vehicles at checkpoints are the among easiest Border Patrol enforcement actions to contest in court. If a dog identifies drugs in a vehicle, then courts are more likely to uphold the agent's decision to pull over and inspect a vehicle. We allocate one K–9 handler per shift to each primary checkpoint, and one handler per shift to every 2 secondary checkpoints (on the assumption that vehicle stops and inspections are infrequent at the secondary checkpoints). Our shift multiplier is 5, so we assign 15 total K–9 handlers to the 3 primary checkpoints and 13 (rounded up from 12.5) handlers to the 5 secondary checkpoints.

IV. STAFFING ESTIMATES FOR THE NINE SECTORS ALONG THE SOUTHWEST BORDER

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    Although all of the Border Patrol sectors discussed in this study are along the U.S.-Mexico border, the differences among sectors are sometimes as great as their similarities. The purpose of this section is to briefly describe each sector, pointing out any unique features that need to be factored into our estimating procedures. It should also be noted that there are wide variations among stations within sectors.

    We discuss the nine sectors in order from west to east, beginning with San Diego and ending with McAllen. Please refer to Figure 2, which lists all stations in the nine sectors, as well as Tables 4 and 5, which show our estimates while reading this section of the report.

San Diego

    San Diego Sector covers roughly 8,000 square miles of southwestern California, patrolling 66 miles of border. It has five border stations from Imperial Beach to Campo and two interior stations at San Clemente and Temecula. The major ports of entry are at San Ysidro, Otay Mesa, and Tecate. Three major interstate highways exit the San Diego area—IH–5 and IH–15 goes north to the Los Angeles area and IH–8 goes east. Since the immediate San Diego County area is not the final destination for most crossers, those three highways, plus air and rail terminals are the main targets for unauthorized crossers. Additionally, State Road 94 parallels the border and is a feeder route to IH–8. In Mexico, the cities of Tijuana and Tecate are large staging areas with major Mexican transportation terminals available. The main Mexican east-west highway (#2) provides easy access to any location along the border between Tijuana and Tecate for unauthorized crossers to begin a trek through the eastern region of the sector. In some places it is less than 100 yards from the border.
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    The terrain in the San Diego Sector varies widely. On the extreme west is the Pacific Ocean, and agents must monitor traffic that may land along the beaches. The first 15 miles east from the beach is rolling hills, with heavily populated residential and business communities on the Mexican side but less population per square mile on the U.S. side. Access to the border for agents is facilitated by dirt roads, some of which are impassable during inclement weather. In some cases those roads run adjacent to the border fences; in other areas the roads are no closer than 500 yards. The terrain flattens out somewhat to the north along the coast; however, to the east it becomes increasingly rugged. Unlike the desert terrain which characterizes most of the U.S.-Mexico border area to the east of the sector, this terrain is lush and green but extremely irregular, full of hills, canyons, and steep slopes. The region is extremely challenging to unauthorized crossers making the journey on foot; however, that feature also works against Border Patrol agents in pursuit. The lack of infrastructure near the border restricts agents' mobility and access to the border. Heat-related problems are not particularly a problem in the sector, but widely-changing temperatures in the eastern regions can cause problems for trekkers who are not prepared.

    There is no real natural barrier to crossing in the San Diego Sector. The Tijuana River on the extreme western edge is more often a dry river bed, although heavy rains and sewage dumping can cause problems. Furthermore, the river has steep banks and assorted vegetation which both hinders and hides unauthorized crossers. The mountainous eastern stretch is only an impediment. To take control of the border, which has been the most popular unauthorized crossing point for many years, the Border Patrol has built a series of fences along the westernmost 14-mile stretch, from the ocean to the end of the Chula Vista station's area of responsibility. The primary fence is a military landing mat fence, some 14 feet high. There is a chain-link fence to the south and two other chain-link fences (segmented, i.e., not in all places) to the north. For about six miles of the westernmost stretch of the fence line, the Tijuana River adds some impediment. The combination of man-made barriers and the forward deployment of agents strategy appears to have allowed the Border Patrol to achieve and maintain control of the border in the two westernmost stations of the sector (Imperial Beach and Chula Vista); however, it appears certain that controlling the border in those stations' areas of responsibility has only succeeded in forcing unauthorized crossers to probe the rest of the sector to the east, as well as moving them to other sectors—particularly El Centro.
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    San Diego has certain qualities that distinguish it from other sectors. First, San Diego Sector's border region is so close to the major Magnet City of Los Angeles and its environs. Los Angeles is roughly 125 miles from the border. That amounts to a 2–3 hour drive for individuals being smuggled into the country. Compare that to the 350 mile distance from the Texas border in Marfa sector to Houston. Additionally, the population between the border and Los Angeles is much larger than that between Houston and the border, so there is the potential for much greater for unauthorized crossers to blend in with the residents. Second, the massive flow of legitimate traffic along the freeway system heading north to Los Angeles limits the Border Patrol's ability to effectively monitor vehicular movement. The traffic itself causes sufficient problems for motorists. Routinely slowing down that much traffic in search of undocumented immigrants would become politically unpalatable rather quickly. Third, the climate is much more favorable for long-distance foot-migrants than in other sectors. Individuals crossing in the other eight sectors with plans to trek for five days to reach their destination are much more likely to encounter physical hardships which will slow them down and make them easier to apprehend than in the San Diego Sector.

    Before starting Operation Gatekeeper in October 1994, San Diego apprehended more people than any other sector. Since Gatekeeper, San Diego's traffic has fallen while other sectors' traffic has risen, but it remains one of the four busiest sectors (along with Tucson, El Paso and McAllen). San Diego's monthly apprehensions frequently exceeded 40,000 and sometimes topped 50,000 before 1996. The peak month was actually May 1995, with 67,282 apprehensions. It took longer for Operation Gatekeeper to show results than Operation Hold the Line, because of the challenges of terrain and very high traffic in the sector. Since May 1996, however, apprehensions have not exceeded 45,000 in any given month. Thus apprehensions are down, but not nearly to the same degree as in El Paso.
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    San Diego currently maintains control of the 14 urban miles in Imperial Beach, Chula Vista and Brownfield stations' area of responsibility with a very large contingent of agents. We estimate that staffing here averages 12 agents per mile per shift, and conclude this level is necessary to control very challenging terrain with high population densities on both sides of the border. Additionally, San Diego's strategy includes staffing several lines—between 3 or 4 fences and hillsides or ridges in some places—instead of a single line as in El Paso or Brownsville. We calculate an additional 2 miles of fenced urban border at Tecate also requires 12 agents per mile per shift, so we allocate 964 line agents a total of 16 urban miles in the sector. San Diego's 50 rural line miles are also very difficult to patrol, because of limited access and steep, rugged terrain. We allocate one agent per shift per mile in the rural areas of Brownfield, El Cajon and Campo Stations. San Diego has four checkpoints, and two of them are by far the busiest checkpoints maintained by the Border Patrol. We estimate San Diego's 2 freeway checkpoints need 24 agents at a time: 3 agents on each of 4 traffic lanes (12 agents), plus 4 agents for processing, and 8 agents to patrol the surrounding area for checkpoints evaders. Checkpoint agents total 358, for 24-hour coverage. The sector's total agent allocation comes to 2,334 when pilots, detail agents, back-up units, station management and sector headquarters are included.

El Centro

    The El Centro Sector is responsible for about 6,000 square miles of southeastern California. Its area of responsibility stretches along the border for 76 miles west of the Arizona State line and runs north to Riverside. There are four stations in the sector, two in the Imperial Valley and two along IH–10. The two main roads which cross the area are IH–8, which runs very close to the border, and IH–10, which runs parallel about 70 miles north. State road 98 is also an avenue for egress, paralleling the border for about 40 miles, intersecting at both ends with IH–8. The main port of entry is in Calexico, a town of about 20,000, which is immediately adjacent to the Mexican Border City of Mexicali. Mexicali, the capital of the state of Baja California, is a city of nearly 1 million people. Two major Mexican highways intersect in Mexicali, Highway 2 (east-west), and Highway 5 (from the south). Because of its strategic location, large population, and standing as a state capital, Mexicali has the potential to serve as a major staging point for unauthorized crossers. Until the implementation of Operation Gatekeeper, it was not used as such. However, with the success of various operations in other sectors, the El Centro Sector has begun to experience dramatic increases in traffic.
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    One somewhat problematic aspect of enforcement for El Centro is that Calexico and Mexicali are divided only by a fence that the Border Patrol has erected. All of the Texas cities have the Rio Grande to separate them from the Mexican cities across the border. Calexico is like Douglas and Nogales, Arizona, in that the only thing which defines the international boundary is the fence. Unlike those two cities, however, the fence in Calexico is primarily chain-link and in poor repair. Unlike locations such as San Diego, which has a wide expanse of uninhabited area between the Mexican side and the first U.S. residential or business areas, unauthorized crossers entering into Calexico have less than 30 yards of asphalt to cross before they are in a housing area or a business district. This means that forward deployed Border Patrol agents in the urban area have little reaction time. Forward deployment also subjects them to the potential dangers of rock-throwing and shooting incidents, both of which have occurred.

    Outside the urban area, the El Centro Sector has generally three types of terrain. To the extreme west of the area of responsibility are the mountains which tend to funnel unauthorized crossers into the Imperial Valley. The Imperial Valley covers much of the southern border of El Centro sector. It is flat farmland, easy to cross of foot, with plenty of water available. There are numerous farm roads which run north, facilitating unauthorized crossers' attempts to be picked up and transported. To the north, the area is high desert, where temperature extremes are common and lack of rainfall makes water resources scarce. The mountains and the Salton Sea both funnel trekkers along limited routes which aids the Border Patrol in apprehensions.

    In the Imperial Valley, the All-American Canal serves as a formidable barrier to foot traffic. The canal is 40 yards wide in places, 10 yards deep, and flowing swiftly. It is man-made, with cement sides and bottom as well as numerous gates and drops which serve to keep the water pressure high for subsidiary canals and irrigation ditches. The effect of this swift current is that the All-American Canal is a distinct hazard to those who would try to swim across. Drownings are common, and the El Centro Sector repeatedly publishes that information in an attempt to warm potential crossers of the danger. There are crossing points at the canal's gates and drops, and they are secured by chain-link fencing. The Border Patrol routinely maintains surveillance on those locations. Another advantage of the canal is that it has levees on each side with all-weather roads on each. That infrastructure provides agents with a rapid movement capability along the canal. The canal is managed by a quasi-governmental agency, and access to the area is not a problem.
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    El Centro exhibits the most rapidly rising number of apprehensions of any sector. From 1990 to 1994, El Centro's apprehensions seldom exceeded 3,000 in a month. The sector's pre-Gatekeeper peak was 3,900 apprehensions in May 1993, unless one goes back to the 1980s. Since San Diego started Operation Gatekeeper, however, apprehensions have risen to nearly l0 times that level. The latest month for which data are available is the month with the most apprehensions: 30,000 in March 1998. El Centro's proximity to San Diego suggests the sector's traffic will keep increasing rapidly for the near future.

    There are about 6 miles of urban border at Calexico, most of which is inadequately fenced. The lack of any natural barrier and large numbers of crossings lead us to recommend a staffing level of 8 agents per mile per shift in Calexico, for a total of 241 urban line agents. We do not recommend 12 agents per mile, as in San Diego and Nogales, however, because the desert terrain in Calexico is flat and offers excellent visibility. We recommend staffing El Centro's 70 rural line miles at one agent per mile per shift, for a total of 351 rural line agents. El Centro's rural territory is not isolated: there are many farms, towns and roads within a few miles of the border. The All-American Canal creates a barrier, but we observed ''drops'' and ''checks'' where people could cross it every mile or so, and there were agents at each of these locations. We estimate 130 agents are needed to operate the sector's 2 checkpoints 24 hours per day, and the remainder of the total of 1,075 are pilots, detail agents, back-up units, stationhouse managers and sector headquarters staff.

Yuma

    Yuma Sector includes 112 miles of border, including all of Yuma County in southwestern Arizona. Detailed agents from Yuma currently patrol between 30 and 40 border miles of eastern California, but we assign this territory to El Centro Sector. Yuma Sector's territory includes some of the perennial high temperature areas in the United States, with temperatures regularly reaching 120 degrees Fahrenheit. The heat and harsh desert conditions make rescue operations common in the sector.
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    The first 35 miles of Yuma's territory are similar to the area near Calexico in El Centro: major roads and population centers are a short distance away. The Colorado River creates the state border here between California and Arizona, and it runs dry in Mexico, after feeding the All-American and other canals in the U.S. and Mexico. As in El Centro, there is a substantial amount of irrigated agriculture in the area nearby Yuma.

    The only U.S. population centers near the border are the towns of Yuma, Somerton, and Winterhaven, Arizona, which are several miles from the border, and the town of San Luis, Arizona, which lies across the border from San Luis, Sonora. There are two ports of entry: one in the Yuma Indian Reservation, which lies in the southeast corner of California, and a second in the town of San Luis. There is a 2 1/2-mile landing mat fence in San Luis. To the east of San Luis lies over 100 miles of the U.S. Air Force's Luke Range, a gunnery range in which pilots conduct target practice. The Border Patrol does not patrol the range, and it is extremely dangerous for people to cross. There are no natural barriers along the border here, but the combination of heat, desert terrain, and military exercises make large numbers of crossing attempts very unlikely.

    Yuma Sector includes 3 stations. Yuma and Wellton are line stations; Blythe is a checkpoint and interior enforcement station, with no line coverage. Yuma patrols the San Luis area, so we consider it an urban line station; we consider Wellton a rural line station. The sector currently operates a checkpoint on the Interstate and 2 checkpoints on secondary roads. The level of crossing traffic in Yuma Sector has historically been very low, but has started to rise in recent months. During 1990 to 1997, total Yuma Sector apprehensions mostly fell within a range between 1,000 and 4,000 per month. During the first 3 months of 1998, however, apprehensions began to rise rapidly, to 4,000 in January; almost 6,000 in February; and nearly 10,000 in March. This trend suggests Yuma will experience increasing traffic in the near future.
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    Our staffing estimate for Yuma totals 787 agents. Of these 120 are needed to patrol the 3 miles of San Luis's urban border, at a staffing level of 8 agents per mile per shift. The San Luis area is not yet under control, and so we double our standard urban line ratio of 4 agents per mile per shift to 8 agents per mile per shift. In rural areas, 236 agents are needed to cover the line along 35 miles at a staffing level of 1 agent per mile per shift. These 35 miles include agricultural areas with less than 5 miles to the nearest town or highway. The remaining 74 miles of Yuma's border territory lie within the gunnery range, and our estimate includes the lowest level of staffing intensity here—1 agent per 10 miles per shift, for a subtotal of 37 agents here. We allocate 20 agents, 4 per shift, to cover the port of entry in the reservation, and 150 agents to staff the sector's 3 checkpoints 24 hours per day. The remaining staff are allocated to rural and urban line station back-up units, details, pilots, and management of stationhouses and sector headquarters.

Tucson

    Tucson Sector covers 89,000 square miles and 250 border miles, including all of the Arizona border with the exception of Yuma County, which is covered by Yuma Sector. Tucson Sector includes 3 Arizona border counties: Pima, Santa Cruz and Cochise. At the western edge is about 10 miles of the Luke Air Force Range, as described in the Yuma Sector section. Just north of the border is the Cabeza Prieta National Wildlife Refuge. The next 20 miles is the Organ Pipe Cactus National Monument, with a port of entry at Lukeville. To the east of Organ Pipe is approximately 50 miles of border in the Tohono O'Odham Indian Reservation. These rural areas in the western part of the sector are mostly flat desert terrain. Temperatures often reach 110 to 115 degrees Fahrenheit, and desert rescues are common. People must walk long distances: Interstate 10 is over 50 miles away, and the only other major highway is Arizona 86. There are several complicating factors in patrolling this terrain, however. First, in Organ Pipe Monument and Cabeza Prieta Refuge, Border Patrol vehicles must stay on existing roads at all times, due to environmental restrictions. Second, the reservation crosses the border into Mexico, and reservation residents cross back and forth into Mexico regularly through 6 ''gates,'' which are essentially breaks in the border fence with cattle guards across them. In addition to the 6 gates, there are numerous places where vehicles can drive and have driven over the border fence.
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    East of the reservation, the terrain becomes very difficult for border enforcement: it is essentially a series of north-south mountain ranges and valleys. Some mountain ranges are steep and virtually impassible by vehicles. There are passable border roads in most of the valleys, but not in the steepest mountains. Sasabe, Arizona, lies at the border in the valley farthest west; Sasabe is a small town with a port of entry into Sasabe, Sonora. The second valley includes the urban area of Nogales, Arizona, which shares the border with Nogales, Sonora. These valleys are characterized by steep mountain slopes, hills and canyons. There are numerous potential crossing points which are hidden from view, and a great deal of smuggling activity takes place, especially near Nogales. This area is exceptionally dangerous for both the Border Patrol and aspiring crossers: at least 2 agents have been shot recently in the line of duty, and one was killed near Nogales.

    Nogales itself is an extremely difficult urban area to control, perhaps the most difficult along the border. The border splits Nogales, Arizona, from Nogales, Sonora, at a distance of less than 1 city block. The current 2 1/4 miles of border fence meander up and down hills and valleys. At some points, the United States is higher than Mexico; at other points, Mexico is higher ground. Smugglers in Mexico regularly shoot at agents and shoot out border cameras. It is too dangerous for agents to be placed immediately on the line, within range of snipers. Additionally, there are 2 major drainage tunnels which lead directly from downtown Nogales, Sonora, into downtown Nogales, Arizona, where they connect to over 50 minor drainage tunnels. These tunnels cannot be blocked effectively without causing flooding during the summer monsoon rains. During previous attempts to introduce Hold the Line type operations, people went around the line and through the tunnels. In some cases, agents were stoned or shot at from across the border. Because of these unique problems, Nogales will require a very different strategy than El Paso or the urban areas in the Rio Grande Sector. Thus we recommend staffing levels as high for Nogales as those in Imperial Beach, California.
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    The San Rafael Valley lies just east of Nogales, but includes no major town or port of entry. East of this valley, the terrain begins to flatten out, and there is a port of entry at Naco, Arizona, which enters into Naco, Sonora. Beyond Naco lies Douglas, the second substantial urban area in Tucson Sector. Douglas is surrounded by ''high desert,'' which is either flat terrain or rolling hills with some vegetation. Temperatures here are considerably lower than in the western part of Arizona, because of the higher elevation, but desert rescues are not uncommon. The area surrounding Naco and Douglas is more highly populated than farther west along the border in Arizona. The towns of Bisbee, Huachuca City and Sierra Vista are not far from the border, and there are several secondary roads leading northwest and northeast out of Douglas. This rural area is more difficult to patrol than the western part of Tucson Sector, because of the higher population density and presence of several highways. Vehicles commonly drive across and through the border fence here, as on the Tohono O'Odham Reservation.

    Douglas itself is a difficult area to control, but not as difficult as Nogales. Douglas shares the border with Agua Prieta, Sonora, and includes about 6 urban line miles: 4.6 miles have new fencing, and another mile of fence is under construction. As in El Paso, the terrain here is flat, and visibility is very good. However, as in Nogales and El Centro, the fence runs immediately next to neighborhoods on both sides of the border. There is a drainage ditch abutting the fence line in downtown Douglas; agents consider it too dangerous to enter the ditch without 4 back-up agents in the immediate vicinity. As in Nogales, Douglas agents have been shot at and stoned. On many days in 1998, Douglas Station has processed more apprehensions than any other station on the southwest border. Agent safety concerns, very high traffic levels and the lack of any natural barriers between Douglas and Agua Prieta suggest staffing levels must increase substantially to get control of this urban area.
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    Through December 1993, monthly apprehensions rarely exceeded 10,000 in the sector. In the first quarter of 1996, by contrast, apprehensions exceeded 30,000 each month, reaching a peak of 42,000 in January 1996. During the first quarter of 1998, apprehension exceeded 38,000 each month, and peaked at 49,000 in March. The dramatic increase in apprehensions in the sector over the past few years suggests traffic will continue to rise in the next few years.

    Tucson Sector has 9 stations, all but one of which patrol the border. Of the 8 line stations, we consider Nogales, Douglas and Naco to cover urban areas. Tucson Sector includes many roads which provide egress from the border, and so we estimate 2 Interstate and 9 secondary road checkpoints are needed. Tucson Sector as a whole has experienced a nearly fivefold increase in apprehensions since 1993. We estimate a total of 2,512 agents are needed Tucson Sector. This estimate includes 301 agents for 5 urban miles in Nogales, where 12 agents are necessary to cover each urban mile on every shift. Note that we do not recommend placing these agents on the line, due to safety concerns mentioned above. The other 8 urban miles in Douglas and Naco are staffed at 8 agents per mile per shift, adding 321 more urban line agents.

    Of the roughly 237 rural border miles in the sector, we estimate that 135 are easy to patrol. Fifty-five miles are of moderate difficulty, and 47 miles are hard to patrol. Most of the 135 ''easy'' rural miles lie west of Sasabe, in desert areas where people must walk more than 20 (often up to 50) miles before they reach a major road or town of any size. The 57 most difficult rural miles are mostly near Douglas and Bisbee, where there are secondary roads within 5 miles of the border. There are some areas west and east of both Douglas and Nogales where secondary roads head north at a diagonal, between 5 and 20 miles from the border. For example, Arizona 80 runs northeast from Douglas to the border with New Mexico. We assign 55 miles like this to the ''moderate difficulty'' category. A total of 359 agents are needed to cover the 237 rural border miles in the sector, allocated on the basis of 1 agent per shift for every easy rural mile; 1 agent per shift for every 5 moderate difficulty miles; and 1 agent per shift for every 10 miles which are difficult to patrol.
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    Additionally, we allocate 513 agents to staff the sector's 11 checkpoints 7 hours per day, 365 days per year. We also allocate 161 agents to cover continuously the ports of entry at Lukeville and Sasabe as well as the 6 gates on the reservation. The remainder of the sector's 2,512 agents are allocated to back-up units, details, air operations, sector headquarters and stationhouse supervision.

El Paso

    El Paso Sector covers a total of 289 border miles, 22 of which are in the El Paso metropolitan area (20 urban miles in Texas and 2 urban miles in Sunland Park, New Mexico). On September 19, 1993, the sector implemented Operation Hold the Line in the immediate area of El Paso. The situation in El Paso at the time was considered serious by all law enforcement agencies in the area. Unauthorized crossings were commonplace. The downtown area of the city had become a gathering place for street vendors, beggars, panhandlers, and ''undesirable'' characters. Petty crime was on the rise. The El Paso Police Department was unable to respond in a timely manner to many burglary and auto theft situations because of the high volume of ''nuisance calls'' it was receiving. Border Patrol agents chasing unauthorized crossers through the streets of El Paso resulted in dangerous traffic situations and a proliferation of human rights violations which culminated in a lawsuit against the Border Patrol by Bowie High School.

    After Operation Hold the Line was implemented in September 1993, the situation improved dramatically. Relations between the Border Patrol and the community have improved greatly. Silvestre Reyes, the Chief Border Patrol Agent for the El Paso Sector, was praised as a hero and has subsequently been elected to Congress, representing the 16th District of Texas in the U.S. House of Representatives. The downtown community is going through an economic revival and historic preservation actions.
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    Total apprehensions have dropped in the sector from an annual average of 231,000 for the four years prior to the implementation of Operation Hold the Line to 115,000 per year for the four years since its implementation. Monthly apprehensions ranged between 20,000 and 40,000 from January to August 1993, peaking at 39,000 in July 1993, but fell to under 10,000 every month in 1994. From 1994 to 1998, apprehensions grew slowly, peaking at between 15,000 and 16,000 for the months of March 1997 and March 1998; however, apprehensions have not returned to even half their pre-Hold the Line levels. These trends in apprehensions suggest some parts of El Paso Sector are currently experiencing increasing traffic, but these parts are in rural areas of Texas and New Mexico, not in the El Paso urban area.

    El Paso Sector has 12 stations, 7 of which are line stations. The 3 urban line stations are El Paso, Santa Teresa and Ysleta. Santa Teresa covers Dona Ana County including Sunland Park, New Mexico, and Ysleta covers the suburbs just to the southeast of El Paso along the Rio Grande River. The 4 rural line stations are Lordsburg and Demming, which patrol the Hidalgo and Luna counties along the New Mexico border, and Ft. Hancock and Fabens, which patrol the rest of El Paso County and part of Hudspeth County, Texas. Marfa Sector takes over in Hudspeth County, about 109 miles down the Rio Grande from the border with New Mexico.

    Our staffing estimate for El Paso totals 2,052 agents. Of these 331 are needed to patrol the 22 miles of El Paso and Sunland Park's urban borders, at a staffing level of 3 agents per mile per shift. Again, this is the lowest staffing level for any urban area along the border because of the relatively high visibility and crossing barriers in the form of the river, canals and fences. Additionally, Operation Hold the Line has been successful for several years now, as shown by the apprehensions data discussed above. In rural areas, 99 agents are needed to patrol the line in easy areas, 25 in moderately difficult areas, and 226 in difficult areas. The methodology section explains in detail how we allocated these agents. Finally, we allocate 408 agents to the sector's 8 checkpoints, and the remainder of the agents to back-up units, details, and management of stationhouses and sector headquarters.
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Marfa

    Marfa sector covers 115,000 square miles of southwest Texas, with 420 miles of border along the Rio Grande. It has 11 stations from Sierra Blanca in the west to San Angelo in the east, from Amarillo in the north to Presidio on the Rio Grande. Marfa patrols part or all of the Texas border counties of Hudspeth, Jeff Davis, Presidio, Brewster, Terrell and Val Verde; these are among the most sparsely populated counties in the United States. There is one major crossing point, at the port of entry at Presidio, and 63 known minor crossing points, including 6 locally-built foot bridges and many low-water spots. Two major interstate highways cross the sector, IH–10 and IH–40. Additionally, IH–20 which connects IH–10 to the Dallas-Fort Worth metroplex traverses the sector. U.S. highway 90 is another major east-west crossing route across the southwest part of Texas. Three main north-south highways provide routes of egress from the border to the main east-west links—US–67, US–385, and state road 118. Unauthorized crossers attempting to enter the country through the Marfa sector are realistically forced to travel those roads or walk to at least US–90. An important fact to note about the Mexican side of the border opposite the Marfa sector is that there are only two main Mexican highways leading into the border region. Both of these roads lead to the port of entry at Presidio. Thus, access to the border from the Mexican side is extremely limited. What all this means is that unauthorized crossers going through the Marfa area are limited in their use of vehicular transportation, and checkpoints can be established to monitor the flow of traffic.

    The terrain in Marfa is primarily high desert, mountainous, with steep canyons. The region is extremely difficult to cross on foot, which is advantageous to agents tracking unauthorized crossers. Persons may walk for 6 days merely to reach one of the main highways, which would still leave them hundreds of miles from a metropolitan area. However, there are a number of livestock watering spots and ranches which crossers may use to facilitate their journey. Ranchers may feed them to get them to move on quickly. The real hazard is heat stroke, both for migrants and agents. The heat associated with the area is a challenge to anyone on foot. Throughout most of the sector, the canyons and mountains tend to funnel foot traffic along known trails which effectively reduce the amount of territory the agents realistically have to patrol.
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    Marfa sector apprehends many migrants traveling east and west, particularly in the Amarillo and Midland stations. These are people who entered the country through another sector and are simply passing through. Midland and Amarillo are the top two stations for trying to curtail narcotics and alien smuggling, although Sierra Blanca also registers a lot of drug apprehensions. Marfa and Alpine encounter more drugs when the season for marijuana is high in Mexico. The sector estimates that 10 to 25 percent of their apprehensions are related to drugs, but most of those are found to be on legal crossers. Alien smuggling is a big problem in the Marfa sector. They apprehend aliens from all parts of the world.

    Marfa consistently has fewer apprehensions than any other sector, in part as a result of the sector's isolation from major towns and cities on both sides of the border. Apprehensions have not risen above 2,000 any month during the 1990s. However, during March 1998, the most recent month for which data are available, apprehensions hit 1,984, the highest total since the summer of 1986. Marfa's apprehensions totals must be watched carefully in the future. The March 1998 spike may be an indicator of patterns to come, if people deterred from crossing in El Paso, Laredo and McAllen decide to chance risking long walks in the mountains and deserts of the southwest border's most isolated region.

    We assign 260 line agents to patrol Marfa's 420 river miles of border. We consider 1 mile at Presidio/Ojinaga to be urban, and place 40 line agents and urban back-up patrols here. All but 20 of the sector's rural border miles fall into the easy to patrol category, because towns and major east-west highways are more than 1 day's walk from the Rio Grande. Additionally, 19 rural miles are considered of medium difficulty to patrol; these 19 miles make up the easternmost segment of Marfa's border, near Langry and Dryden, Texas, where U.S. 90 runs less than 20 miles away from the river. Marfa has 5 checkpoints, including one on an Interstate highway; these checkpoints account for 235 of the sector's agents. An additional 120 agents are assigned to cover the 6 foot bridges. The majority of Marfa's 1,367 agents are back-up patrols and details, which will be necessary to plant sensors, cover remote rural areas, and gather intelligence as traffic increases in the sector during the future. Marfa has more border miles than any other station and a very large rural area inside the United States to patrol.
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Del Rio

    The Del Rio sector covers a 59,500 square mile stretch of western Texas with 205 miles along the Rio Grande. The sector includes all of 2 Texas border counties—Maverick and Kinney—as well as part of a third, Val Verde. There are 10 stations in the sector from Eagle Pass in the south to Abilene in the north, from Comstock in the west to Uvalde and Carrizo Springs in the east. There are 2 primary ports of entry, 1 at Del Rio/Cuidad Acuña and 1 at Eagle Pass/Piedras Negras. Each of the American cities is roughly one-tenth the size of their sister cities across the river on the Mexican side of the border. However, what the American side lacks in population it makes up for in transportation capability. Unlike some other sectors, Del Rio has a plethora of routes of egress from the border. Four U.S. highways—US–90, US–277, US–377, and US–57—lead out of Del Rio and Eagle Pass. US–277 runs parallel to the border for about 60 miles between those two cities, and three state roads serve as feeders to US–90. There is also state road 183 which runs north from Comstock to IH–10. On the Mexican side, Mexico Highway 2, which traverses the border from Matamoros on the Gulf of Mexico to Tijuana on the Pacific Coast, runs alongside the river between the two Mexican cities. That allows potential unauthorized crossers to move quickly along the border, probing for places to cross the river undetected. There are a number of small ranches on the Mexican side which facilitate unauthorized crossings. A number of smaller roads on the U.S. side bring the number of realistic routes of egress from the border to 17.

    Terrain in the sector is very dry and hazardous for foot traffic, with the exception of the Quemado Valley where farmers grow melons which trekkers can use as a source of liquid. The remaining area is used for raising livestock, and watering holes are few and far between. However, the topography is relatively flat. As one moves from east to west within 50 miles of the border, the land becomes more rolling than flat, but the up and down nature of the terrain is hardly challenging. Heat-related illness is a serious problem for trekkers. At the western end of the sector, the Amistad Reservoir stretches roughly 30 miles long and is over a mile wide in most spots. It forms a formidable barrier to crossing. Additionally, the road network on the Mexican side of the reservoir is minimal. Thus, unauthorized crossings are rare in that area. On the other hand, the river downstream (southeast) of the reservoir is fairly shallow, except following occasional releases from Amistad Dam.
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    Because of population centers and transportation routes, Del Rio and Eagle Pass are the 2 places where most unauthorized crossings occur and where most apprehensions are made. Cuidad Acua and Piedras Negras are hotbeds of alien and drug smuggling. Mexican highways and rail service allows for easy transportation into those 2 cities from both the interior of Mexico and the Gulf Coast. Del Rio has an advantage over Eagle Pass in that agents in Del Rio have a small buffer zone between the border and the city. There are few businesses and houses in the immediate vicinity of the port of entry bridge. Eagle Pass has a business district adjacent to its port of entry, allowing unauthorized crossers the opportunity to rapidly intermingle with the local populous.

    One hindrance to Border Patrol operations in the Del Rio Sector is the private property along the river in Texas. Unlike the other three border states, Texas has little public land along the border. Therefore, the Border Patrol is prohibited from erecting fences, walls, and other barriers to unauthorized crossing on the vast majority of the land along the international boundary. Since the Rio Grande is not a significant barrier to crossing along much of the Del Rio Sector's area of responsibility, most of the sector is limited in its tactical approach to border control.

    Another aspect of the private property issue is the problem of access to the border. Because of property rights law in Texas, access to the border is restricted, in a limited way. Although under federal statute the Border Patrol has the legal right to enter private property within 25 miles of the border, landowners can limit that entry. Moreover it has been important for the Border Patrol to establish and maintain good relationships with local landowners. This has been something of a problem in the Del Rio Sector because of the rise of commercial hunting of exotic game. Several ranchers in the area have established exotic animal hunting enterprises on their property. They insist on minimal intrusion by the Border Patrol and establish strict rules which hamper Border Patrol operations. There is, of course, the possibility that some ranchers are involved in alien and drug smuggling and minimize Border Patrol access to protect those interests.
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    Del Rio Sector's apprehensions have risen substantially since its neighboring sector, El Paso, implemented Hold the Line in September 1993. Between 1990 and 1993, monthly apprehensions never exceeded 6,000. In the first 9 months of 1995, apprehensions rose to a range between 7,000 and 10,000 per month, then rose to over 10,000 per month during the first 8 months of 1996. Apprehensions reached their peak of almost 20,000 in March 1998, the most recent month for which data are available. Apprehensions data support the conclusion that large numbers of aspiring crossers deterred in San Diego, El Paso and McAllen Sectors are attempting to cross in Del Rio Sector. This conclusion is also supported by comments from a group of aspirantes, as would-be crossers term themselves, whom we interviewed in Piedras Negras, across the river from Eagle Pass. Among the group of 20 or so aspirantes were people who had tried to cross previously in San Diego, El Paso and Brownsville.

    We allocate a total of 1,813 agents to Del Rio Sector. This total includes 361 agents for 9 urban miles in Del Rio and Eagle Pass, where we estimate it will take 8 agents per shift per mile to gain control. We do not allocate staffing levels as high as in San Diego and Nogales, because the river represents a barrier in Del Rio and Eagle Pass, and because the terrain in Texas is flat. While visibility is limited somewhat by vegetation, it is nonetheless better than in the canyons and hillsides of California and Arizona. The total also includes 492 agents to cover rural areas in the sector. About 87 rural miles are difficult to cover because of thick vegetation, limited access on private ranches, bends in the river, and the location of U.S. 277 and Texas Farm-to-Market 1021 within a few miles of the border. These 87 rural miles are staffed at 1 agent per shift per mile, as in the McAllen Sector. Another 109 ''easy to patrol'' miles are located alongside Lake Amistad, which is too wide to swim across, and downstream from Eagle Pass to the Webb County line, where there is no road within 20 miles of the border. We also allocate 255 agents to cover 6 checkpoints on 2-lane highways and 20 agents to patrol Amistad Dam; the rest of the agents are for air operations, sector headquarters, station management, details and back-up patrols.
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Laredo

    Laredo Sector's border runs for about 187 miles along the Rio Grande River in 2 Texas counties: Webb and Zapata. Del Rio Sector takes over to the northwest, near the Maverick county line, and McAllen Sector takes over at the Starr County line to the southeast. Laredo is the only urban area in the sector; it shares about 11 miles of urban border with Nuevo Laredo, Tamaulipus. Laredo is a major transportation hub: more than one million trucks go through its 2 ports of entry every year. Interstate 35 heads north across the United States to Canada, and Mexico 85 heads south across Mexico to connect with the Pan American highway. There are also major rail yards and an airport. There is a third port of entry about 20 miles north of Laredo, which connects Texas Farm-to-Market road 1472 with a small road in a rural part of Nuevo Leon, Mexico; however, little traffic goes through this port.

    Outside of downtown Laredo and the ports of entry, there are few easy places to cross the Rio Grande. The river runs fast, wide and deep, occasionally fed by releases from the dam at Lake Amistad. The Rio Grande in the southern part of Zapata County forms Falcon Lake behind Falcon Dam, near the Starr County line. Along 99 percent of the border in Laredo Sector, the river is too deep to wade most of the time; however, people cross surreptitiously by boat or by swimming. People who attempt to cross sometimes drown in the river, and so water rescues are common. Border Patrol access to the river front is good. There is a bluff along most of the river; the terrain is flat or rolling hills. Close to the river, however, visibility is limited by up to 150 feet of Carrizo Cane and shrubs. The first 30 feet of vegetation next to the river cannot be cut because it is protected wildlife habitat. If people cross the river north of Laredo, they must travel more than 20 miles to cross the nearest highway. South of Laredo, however, there is major highway within 5 miles of the river at all times. Nonetheless, crossing south of Laredo is difficult because the river is so wide at Falcon Lake.
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    Laredo Sector includes 8 stations, 3 of which have line agents. Laredo is the only urban line station. The sector currently operates a checkpoint on the Interstate, plus 3 on secondary roads. Laredo's apprehensions in the first quarter of 1998 are down somewhat relative to the first quarter of 1997. During January to March 1997, apprehensions ranged from 15,000 to 18,000, but during the first 3 months of 1998, apprehensions ranged from only 10,000 to 14,000. This significant decline in apprehensions may show the preliminary effects of Operation Rio Grande, which was implemented in downtown Laredo starting in August 1997. Apprehensions have risen, however, in rural parts of the sector.

    Our staffing estimate for Laredo Sector totals 1,426 agents. This estimate includes 302 line agents for the 11 urban miles within Laredo. Seven of these urban miles are ''under control'' and are currently staffed at an average of 4 agents per shift per mile. Operation Rio Grande has not yet been implemented in the remaining 4 urban miles, and so we estimate they need to be staffed at 8 agents per shift per mile. The relatively low urban staffing levels for Laredo are based both on our analysis of the terrain and the sector's experience in reducing apprehensions effectively using this staffing strength. The Rio Grande River represents a formidable barrier in and around Laredo. Border enforcement is also enhanced by the absence of hills or other terrain features which might reduce visibility.

    Our estimate also includes 364 line agents for rural areas. We consider 106 rural miles to be easy to patrol, and they are staffed at 1 agent per shift for every 10 miles. About 30 easy to patrol miles lie along Falcon Lake, in the southern half of Zapata County, and another 76 rural miles include northern Webb County, where the border is more than 20 miles from Interstate 35. The remaining 70 rural miles fall in the medium or difficult to patrol categories, where distances from roads to the border are less than 20 miles, and the river forms less of a barrier than at Falcon Lake. Our estimate of 1,426 agents also includes 193 agents to staff the sector's 4 checkpoints, plus 20 agents for the rural port of entry north of Laredo. The remainder includes pilots, detailed agents, back-up agents for the line stations and supervisory staff at all stations and the sector headquarters.
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McAllen

    The McAllen Sector patrols 17,000 square miles along the easternmost segment of the U.S.-Mexico border. For 280 miles in the McAllen Sector, the Rio Grande River runs east from Falcon Dam to the Gulf of Mexico. The river bends frequently and is wide in some places and narrow in others. It runs deep at times and shallow at times, depending on releases from the Falcon Dam. Dam releases are timed to supply water to irrigate fields in the Lower Rio Grande Valley. Following dam releases traffic drops off somewhat for a week or two, but people can still get across if they are strong swimmers or use inner tubes or boats. Many people trying to cross drown in the river, however, and water rescues are common. The International Boundary and Water Commission (IBWC) maintains a dike (for flood control) along the river for its entire length below Falcon Dam. There is a road along the dike, and Border Patrol agents have good visibility along this road, up to a few miles with night vision scopes in some places. In most places they can see easily into Mexico and spot people before they start to cross. This visibility gives agents good lead time on crossers, even in downtown Brownsville. Vegetation along the river is sparse in some areas and thick in others, but not as thick as upstream in Laredo and Del Rio Sectors.

    McAllen's border includes 3 Texas counties—Starr, Hidalgo and Cameron—as well as the urban areas of McAllen, Harlingen and Brownsville. The Texas side of the border here is mostly urban, semi-urban or agricultural. There are no remote rural areas such as can be found in most other sectors along the southwest border. Across the border in the state of Tamaulipas there are also a few cities: Ciudad Miguel Aleman, Ciudad Camargo, Reynosa, Rio Bravo and Matamoros. Matamoros is one of the largest cities in Mexico and a long-time center for immigrant smuggling, especially smuggling of Central Americans. The terrain just to the north of the Lower Rio Grande Valley, however, is more sparsely settled. Large ranches make up most of the area between Harlingen and Corpus Christi. Occasionally, people die from heat stroke on the long walk north across these ranches; rescues in this area are common.
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    There are 10 ports of entry in McAllen Sector, most of which are major crossing points for car or truck traffic. Some of the 8 bridges are open 24 hours, but others are only open part of the time. Additionally, there is a port of entry at Falcon Dam, and the only hand-drawn ferry along the border operates at Los Ebanos, near the Hidalgo/Starr County line. U.S. 83 parallels the river for the entire length of the sector; however, there are only 2 major routes north. The Border Patrol maintains 2 checkpoints along divided highways here, and 1 checkpoint along a secondary road.

    McAllen Sector has a total of 9 stations, 6 of which include line agents. Brownsville, McAllen and Harlingen are the 3 urban line stations. McAllen and Harlingen are both a few miles away from the border; nonetheless, they are close enough to require urban units such as bicycle patrols. There are 3 rural line stations: Port Isabel, which covers the mouth of the Rio Grande, east of Brownsville; Mercedes, which patrols the border between Brownsville and McAllen Stations; and Rio Grande City, which includes all of Starr County west to Falcon Dam.

    The presence of urban areas on both sides of the border and Brownsville's relative proximity to Houston and other employment centers along the Gulf Coast make McAllen one of the most popular crossing points. Apprehensions rose gradually throughout the 1990s, reaching their peak at 32,000 for the month of February 1997. Apprehensions dropped significantly in the first quarter of 1998: they ranged from 22,000 to 24,000 during January to March of this year. This drop in apprehensions may be partially accounted for by Operation Rio Grande, which began in Brownsville and other urban areas in McAllen Sector in September 1997. A large share of McAllen's apprehensions, however, continue to be Third Country Nationals (TCNs), mostly from Central America. McAllen apprehends more TCNs than any other sector, and TCN apprehensions continue to place a strain on the sector's detention facilities and on the staff in terms of increased time spent on processing and paperwork.
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    We estimate a total of 2,767 agents for McAllen Sector. We assign 442 line agents to urban areas, based on a staffing level of 4 agents per mile per shift. McAllen is currently maintaining control of its urban areas with a Hold-the-Line type strategy and an average of 4 agents per mile. We calculate a total of 22 urban miles in McAllen Sector including: 12 miles in Brownsville, 1 mile at Progresso, and 3 miles each at Roma, Hidalgo and Rio Grande City. Our calculation of urban miles may be slightly lower than those in other analyses, because we consider areas where urban centers are a few miles from the border to be rural. We assign 1 agent per rural mile per shift, however, because of the proximity of urban areas and highways to the border. Despite the river, people can and do cross almost anywhere along the 258 rural river miles in the sector. During our visit to the sector, we were told of at least 15 major crossing points near towns on the U.S. side of the border in one station's area of coverage. Agents told us it would take 4 agents to cover each crossing point or small town on the U.S. side. These towns and crossing points are between 4 and 5 miles apart on average, hence our estimate that 4 agents cover every 4 miles, or 1 agent per mile. We allocate 1,295 agents to cover rural areas in McAllen Sector, and this accounts for the bulk of the sector's total. It is our impression that these agents will be necessary as Operation Rio Grande expands westward from Brownsville into nearby rural areas. Additionally, we allocate 173 agents to the 3 checkpoints in the sector and 80 agents to the 4 rural ports of entry—2 bridges, Falcon Dam and the ferry at Los Ebanos. The remainder of the agents are assigned to sector headquarters, stationhouse supervision, details, air operations and back-up patrols.

V. TOTAL ESTIMATE AND FURTHER CONSIDERATIONS

    As shown in Table 5, we estimate that 16,133 agents would be required to achieve and maintain control in all 9 sectors along the U.S.-Mexico border. We estimate that 103 of the 1,885 U.S.-Mexico border miles are urban, and that some form of forward deployment strategy would be implemented in urban areas. The remaining 1,782 miles of the border would be patrolled by a combination of response to sensor hits, road dragging and sign cutting techniques, aircraft patrols, etc. Nonetheless, a significantly larger number of agents will be required in rural areas once forward deployment in all urban areas is achieved. A large share of the additional agents that we estimate are needed would be for rural area patrols. Additionally, a substantial increase in the number of agents would be required for back-up and checkpoint positions in all sectors to fully implement a three-tier strategy of border control.
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    Because this would represent such a significant increase over the current level of staffing, training problems would undoubtedly arise. In our estimate described above, we did not address the issue of staffing either for the National Border Patrol Training Academy or for post-academy training requirements at the sector or station level. However, those positions are as critical to the successful control of the border as are any other officer positions. Therefore, we need to address that issue at this time.

    Currently, the Border Patrol academies at Charleston, South Carolina, and Glencoe, Georgia, are conducting 35 to 40 classes per year to provide new agents to fill positions which are being added by Congressional mandate as well as to fill positions vacated through retirements, resignations, transfers, etc. Those classes average approximately 50 students per class. Assuming an average of 37 classes per year at 50 recruits per class, the Border Patrol must hire 1,850 recruits to fill those training classes. That level of recruiting would produce roughly 1,665 graduates, accounting for attrition from the academy itself. Given the level of Border Patrol agent staffing we estimate is needed, we believe that such a recruiting level must be achieved and maintained for several years to come. There are two reasons to justify maintaining that level. First, several individuals we interviewed suggested that the number of new trainees coming to the field were overtaxing the stations by significantly upsetting the balance among supervisors, senior agents, journeymen and trainees. We believe the Border Patrol cannot increase the number of new agents fielded each year without creating serious problems related to seniority and supervision. Secondly, assuming that attrition remained constant around its currently estimated 5 percent, attrition losses would run at about 800 per year once the full staffing level of 16,000 agents along the U.S.-Mexico border was reached, requiring a comparable number of replacements.
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    The facility at Charleston currently uses roughly 150 positions to train approximately 1,500 new agents each year. Those 150 positions consist of about 50 permanent staff and 100 person-years of agents detailed from the field. The 100 person-years amounts to between 150 and 160 agents detailed an average of 8 to 9 months from field sectors to conduct new agent training. Operationally, it is useful to have some agents rotating in from the field—temporary instructors help keep the curriculum fresh, and temporary instructors can take information and techniques acquired at the academy back to their home stations. However, the current ratio of permanent staff to detailed personnel may be out of balance. We suggest that 80 percent of the 150 trainers should be permanent staff, to maintain continuity and consistency. If this were the case, the Charleston facility could be staffed with 120 permanent staff and 30 detail people per year. These 30 detail positions would then need to be added to our recommended total and distributed to field sectors as new trainees are added to the sectors. The Glencoe academy trains about 350 of the 1,850 new hires. This would require approximately 35 more trainer positions, based on 1 trainer per 10 new hires. Additionally, the Border Patrol provides continuing, in-service training to individuals who are promoted to higher ranks and supervisory positions. As the entire Border Patrol staffing levels increase, new trainer positions would be required to offer that training. What these staffing needs will be will depend on how rapidly the Border Patrol promotes its people. That sort of estimate is beyond the scope of this report because it requires an assessment of Border Patrol policy by agency policy-makers.

    A second training issue is post-academy training. Our research shows that it takes roughly one instructor to conduct post-academy training for every 15 trainees. Assuming that 1,665 academy graduates are delivered to the field each year (as previously estimated), we estimate that 111 positions would be required in the field to provide them with post-academy training (1,665 trainees/15 trainees per trainer). Those trainer positions should be distributed among the 48 line stations along the U.S.-Mexico border(see footnote 29) as new academy graduates are delivered.
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    Once the Border Patrol attains the recommended staffing level, one can anticipate that new problems will arise. As evidence from previous studies and current forward deployment operations shows, unauthorized crossers have found alternative routes for crossing as certain routes become closed off. However, once full control is achieved, there will be no alternative routes along the 1,900 mile U.S.-Mexico border. As a result, the nature of attempts to cross may change as unauthorized crossers search for different modes of entry, including tactics such as mob rushes. One might certainly expect that smuggling activities would increase. Concomitantly, costs of smuggling would increase, and one can expect that the number of violent confrontations between smugglers and Border Patrol agents would rise. Some other possibilities include increased use of false documentation, improper use of border crossing cards, and increasing use of sea or air transport. From the Border Patrol's perspective, attrition might become more of a problem. Forward deployment tactics have the negative effect on agents in that they create boring duties. Highly motivated and trained agents need stimulation, and the deterrence strategy of Operation Hold the Line, et al., can be detrimental to the esprit de corps of the Border Patrol. Thus, what is an appropriate staffing level to achieve and maintain control of the border in the period immediately after ''full control'' is attained along the border's entire length may not be as high as the number of agents required to continue such an operation in the longer run.

Table 1



Table 2

Table 3

Table 4

Table 5

Table 6

Table 7

APPENDIX 1:
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FORMULA FOR COMPUTING SHIFTS AND UNITS

    Formula for computing the number of agents required to occupy one position, based on a 3-shift-per-day, 365-day-per-year position:

    {365 - [(365/7*2) + (365/14*6/8) + (365/14*4/8) + 10]} * 8 = 5.020057

    {days/yr. - [days off + annual leave + sick leave + holidays]} * hours = multiplier

    This formula takes the number of days in a year and subtracts the sum of the number of days that an agent may be away from duty in any given year. The number of days off duty is computed by adding the number of regular days off (i.e., weekends for agents who work rotating shifts) to the number of days of annual leave, sick leave, and federal holidays each agent is authorized each year.

    The number of regular days off averages roughly 104 per year (365 days in the year divided by 7 days in the week times 2 weekend days).

    The number of annual leave days is computed according to Civil Service standards, i.e., 6 hours per pay period for 26 pay periods. 365 days per year divided by 14 days in a two-week pay period yields roughly 26 pay periods. 6/8 refers to the six hours of annual leave earned during the pay period divided by 8 hours of regular duty, i.e., one gets .75 days of annual leave per pay period. This only applies to agents who have three or more years of service but fewer than 15 years of service. Agents with fewer than 3 years service get 4 hours per pay period, while those with greater than 15 years of service are entitled to 8 hours per pay period. We chose to use the 6-hour figure because it is not unreasonable to assume that most agents fall in that category. Thus, it probably reasonably accurately estimates the mean for our purposes.
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    The sick leave days are calculated in a similar manner, except that 4/8 is used instead of 6/8. All agents are entitled to 4 hours of sick leave per pay period. This is more problematic for the formula because, unlike annual leave, which can only be accumulated to a maximum level, sick leave can be accumulated throughout one's career with no maximum. It is unlikely that all agents would be using 13 sick days per year. However, there is no way to accurately judge how many days will actually be taken, and a supervisor must be prepared for an agent to used the maximum allowable.

    The 10 in the formula represents the 10 federal holidays which agents should get, or be compensated for with later time off. Those days are New Years Day, MLK's Birthday, Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving, and Christmas.

    The 8 hours represents the normal workday for an agent.

    The bottom line is, for every position which must be staffed continuously (24 hours per day), it takes 5.02 agents. When we computed the total agents required for each position, we used that number, then rounded up whenever we obtained a fractional number.

    Mr. SMITH. Thank you, Professor Bean. I will start my questions with you and work back down the panel.

    I think you have conducted the most thorough study that has been conducted of the need for Border Patrol agents. As you mentioned in your testimony, you looked at every level of enforcement. You looked at all nine sectors. You went into the greatest detail I have seen. You have come up with a very helpful report.
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    I hate to say it is the best that has been conducted because, as I mentioned earlier, General McCaffrey came up with 20,000 last year. I might lean toward the higher figure. I think yours is a very, very credible report.

    My question is this. If we were to hire the 16,000 Border Patrol agents that you recommend, what would we get as a result? How much would illegal immigration and illegal drug trafficking decline?

    Mr. BEAN. This is not a very satisfactory answer. I think we do not really know the answer to that question. What I think would happen if we did have that level of personnel is that for the first time we would be able to test the hypothesis that the Border Patrol makes a difference.

    Lots of people claim that it does not make a difference. Lots of people claim that it makes all the difference in the world. In my opinion, we have never had a level of Border Patrol personnel to tell—it appears now that we have some sense of what number might be enough. We have never had enough personnel to really provide a credible basis for finding out what would happen.

    I think it would stop the land traffic across the Border by foot and by car. Of course, there are so many other ways that unauthorized persons can come into the country. There probably would be some switching to those kinds of entry.

    One method, for example, is using Border Crossing Cards. The technology of the Border Crossing Card has improved. So, it is more counterfeit proof now than it used to be, but that is another crossing option.
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    There are also visa over-stays and so forth, with which you are well-familiar. I think it would make a difference in terms of certain particular kinds of travel.

    Mr. SMITH. You probably cannot quantify it, but I think it is going to have a significant impact. Thank you, Mr. Bean.

    Bishop DiMarzio, my question for you is why do you think that in this handful of hardship cases, and you described one, why is it that the INS has not exercised their prosecutorial discretion?

    Clearly, they have more cases than they can possibly handle. We have more criminal aliens than beds, or at least that is the appearance.

    We have also had the past experience when we have said to these individuals, we are going to release you, show up for the hearing. Something like 90 percent never show up for that hearing.

    Why is it that they do not exercise that discretion? I am not aware of any time they have exercised it. Maybe they have.

    Mr. DIMARZIO. The cases are not just a few. I think they are growing. Unfortunately, they come to our attention day-in and day-out. The prosecutorial discretion issue is an issue of not being uniformly applied across all of the districts.

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    It is not an easy thing to do. The people have to do it. They have to take responsibility and the Congressional oversight to this point, I think, has deterred them from really exercising it.

    Mr. SMITH. In the cases that you have talked about, obviously I am not opposed to the exercise of their prosecutorial discretion. Have any of the cases that you are aware of applied to the INS and said, wait a minute, why do you not exercise your prosecutorial discretion, or applied to the AG and said give us parole?

    Mr. DIMARZIO. The process is so fast. They are deported before they can even do that.

    Mr. SMITH. You have to anticipate it during a part of the process. These folks do not lack for representation, I do not think.

    Mr. DIMARZIO. No. They do lack. They do not even know what the law is that they have—it is areal issue.

    Mr. SMITH. I think there are a thousand immigration lawyers out there who would love to have any of these cases and apply for prosecutorial discretion.

    I am simply saying that that is a vehicle that has not be used, I do not think. I do not know. You said it is not used and it is something that perhaps could be used.

    I am going to squeeze in one more question, if I may, to Mr. Rabkin. You mentioned in your testimony, as of last October, there had been no change in the INS performance. You said they have been recently starting to make some progress on some of the recommendations that you have mentioned.
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    Basically, in the last 4 years, since 1995, the INS has failed to implement the specific recommendations that you all have recommended. What good explanation for that is there?

    Mr. RABKIN. Well, we made the recommendations in 1997.

    Mr. SMITH. 1997, that is right.

    Mr. RABKIN. It has been about a year and a half or a little bit more since we made the recommendations. In fact, they had been trying to enhance their program even before that by focusing on some of the States that they cooperate with and enhancing their cooperation with the BOP.

    We have called for things like a better data base so they will keep better track of those people that they are informed about form the State Prison Systems and BOP.

    We talked about a work load analysis model, a technical model, to help them figure out how many people they need; how many Immigration agents they need to do the work that has to be done.

    Mr. SMITH. You testified that you still have this situation where an incredible number of individuals are being detained too long and using up space.

    Mr. RABKIN. Right.
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    Mr. SMITH. Or being released and you never see them again. Whatever the figure was, only 30-something-odd percent are actually having happen what is supposed to happen under the program.

    Mr. RABKIN. I think one of the real answers is resources. It gets down to the question of how much staff does INS need to produce a specific level of results? If their results are 100 percent, then the inmates that they know about will go through the program and have it completed by the time they are released. Our question then was how much resources do you need? They just did not know. They had not the capacity to figure that out. That is what we had recommended. They have not gotten to that point yet.

    Mr. SMITH. Thank you, Mr. Rabkin.

    The Ranking Member has said she will indulge me and let me go beyond my time so I can finish up my questions.

    Mr. Stein, you made the excellent point that one reason we passed the 1996 law is because the discretion in the past had been abused. We had individuals who were guilty of rape, robbery, or trafficking in illegal drugs, and these individuals were being put back out on our streets.

    Something like 67 percent committed additional crimes after release. Those folks are not the ones that my family and neighbors want back in our communities. I think that would be true of about 99 percent of the American people.
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    I thought that was a good point. I thought you also made the good point that the INS itself had the goal of operating 20,000 detention beds, but I do not know what happened to that goal because the money requested by the INS would not have enabled them to achieve that goal. That goal was supposed to have been reached, I believe, in fiscal year 1999.

    The gentlelady from Texas is recognized.

    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    I give you an A-plus for catching up with me on how fast one can talk and trying to get as much as we possibly can get in, in a short period of time.

    Let me thank the excellent panel for the diverse opinions that have been presented and indulge me, if you would, as I give you sort of speed questions with speed answers. I would greatly appreciate it. I have gotten a sense of your testimony and will be reviewing and studying it.

    Professor Bean, thank you for coming from the University of Texas. We appreciate the in-depth study that you have done. Would you concede the point that when you talk about 16,000 as an aspired goal, that you are talking about trained professionals with the kind of experience necessary to do the job?

    Mr. BEAN. Absolutely.

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    Ms. JACKSON LEE. I thank you for that.

    I will work with you further.

    Bishop, let me thank you very much for both your leadership on migration issues and, as well, the sacrifice you made to join us this morning. My question goes to my opening statement about the fact that we are a Country of immigrants and, as well, laws.

    Can you help me understand in the course of the work of the Catholic Church does, the numbers of people that they see with these tragic stories, in contrast to some of the other heinous stories that we have seen, which we know we need to deal with in a straightforward manner?

    What is the mountain, and I do not want to put words in your mouth, of evidence that you have on this issue of people abused by the process, that have been brought up. I guess the issue is that when people are desperate, they go to the Priest. They come to a Bishop. They go to Congresswomen. They go to Senators. They look for relief because the law is not there to give it to them.

    This is what is happening. I think some private bills have been introduced to show that the law is not capable of dealing with these issues at this time.

    Ms. JACKSON LEE. As it is presently structured. I will note that we have seen an increase in private bills. That is of concern. I thank you for your testimony.
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    Mr. Rabkin, let me also thank you. You are the watchdog. We appreciate what the GAO does. We like our agencies to follow recommendations.

    Let me understand the part of the fifth element where you were asking them to deal with, I guess, the most violent actors, if you will, and they decided to do prioritization on how long they had been there. Is that my understanding?

    Mr. RABKIN. Actually, they were focusing on those that were to be released the soonest.

    Ms. JACKSON LEE. Right; pending to go out.

    Is this something that can be fixed? Are you engaged with INS at this point to assess their reconsideration of this issue? Do we have the opportunity to have that occur?

    Mr. RABKIN. We are not, at this point, involved in it. I spoke to Mr. Virtue this morning. Basically, we just disagree on that.

    Ms. JACKSON LEE. So, this is a document that could really entertain further discussion on at least the five points. Are the four points being acted upon?

    Mr. RABKIN. Yes, at various degrees.

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    Ms. JACKSON LEE. So, we have a contentious fifth point and we are open for discussion. I just wanted to make sure they had not totally ignored the accounting effort that you have made to assess their efficiency. It is up to us to continue to have that done.

    Let me follow up and finish very quickly with Mr. Stein. Let me thank him for the role that he plays. He mentioned 70,000 Americans. It is important that we have voices that you represent here.

    Would you concede the point that I have made again that the Nation is a Nation of immigrants?

    Mr. STEIN. Well, we are certainly a Nation of the descendants of immigrants.

    Ms. JACKSON LEE. We would not be in this room with the multitude of individuals, I would imagine, who do not look like Native Americans to me. I cannot question everybody, but certainly there may be some representation here. In any event, if we had not been part of the immigrant.

    Mr. STEIN. Representative Jackson Lee, immigration has played an important and a historic role in our Nation.

    Ms. JACKSON LEE. Thank you. Let me finish the point by asking is it your policy to eliminate all immigration in America?
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    Mr. STEIN. No. What we are in favor of is immigration policies, levels, and numbers that we feel are consistent with the national need and interest. We want policies that do not injure Americans and the future of our children and grandchildren.

    Ms. JACKSON LEE. Let me not interpret what you are saying. Let me see if I can see that we will have some common ground. I believe we are a Nation of immigrants and we are a Nation of laws. We will find a common balance, if you will, on those two points. I thank you for your testimony.

    Mr. Chairman, I have a submission that I would like to make at this point.

    Mr. SMITH. Okay.

    Ms. JACKSON LEE. Look, I finished before the bell went off.

    Mr. SMITH. You did better than I did.

    Ms. JACKSON LEE. Mr. Chairman, you asked a very important question, I believe on the ability of individuals to obtain counsel. Both of us are lawyers, so we can make quite a bit of humor about how the lawyers get their man or woman, find their clients.

    In any event, there is some concern about access to legal representation. I would like to submit to the record, a letter from the ABA, the American Bar Association, on this issue, dated February 24, 1999.
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    Mr. SMITH. Without objection, we will make that a part of the record.

    [The ABA letter referred to follows:]


American Bar Association,
Governmental Affairs Office,
Washington, DC, February 24, 1999.
Hon. LAMAR S. SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR MR. CHAIRMAN: The American Bar Association has a long-standing and strong interest in immigration detention and the related issues to be examined in the hearing before your Subcommittee on Thursday, February 25.

    The Association's interest in immigration detention, and our involvement in securing the rights of detained aliens, date back to 1980, when we organized a national pro bono effort to represent Haitian entrants. Since that time, the Association has conducted or participated in numerous delegations to INS-operated and contract detention facilities, including those in Texas, Louisiana, Florida, California, New York, and Arizona. We have found that many individuals are needlessly confined, at considerable expense to the government, pending immigration court proceedings and that detention conditions greatly impede their ability to obtain legal information, secure counsel, and prepare their cases.
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    In 1989, the Association conducted an investigation of detention in the Harlingen-Brownsville, Texas, area, following which the Association developed an all-volunteer representation effort in Harlingen which is co-sponsored by the State Bar of Texas and the American Immigration Lawyers Association. That project, ProBAR, recruits attorneys nationwide to travel to Texas at their own expense to represent detained individuals in immigration proceedings. The ABA also awards grants to bar-sponsored pro bono legal service programs serving detained migrants and asylum seekers in other locations across the country.

    The Association has adopted policy addressing a range of detention concerns. We believe that asylum applicants should be detained only in extraordinary circumstances and in the least restrictive environment necessary to ensure their appearance at court proceedings. In addition, the INS should institute alternative means of ensuring appearance at court proceedings, such as supervised conditional pretrial release. Bond, when imposed, should be based upon an individual's economic means, community ties, and the likelihood of absconding. Counsel should be permitted to enter limited appearances for bond and custody proceedings.

    In addition, the Association has been actively facilitating effective access of aliens in proceedings to legal representation, improving physical and telephonic access between detainees and legal representatives, making sure accurate lists of legal service providers are maintained and disseminated, and ensuring that legal service organizations are allowed to provide general ''Know Your Rights'' legal presentations and to distribute informational and legal materials to detained persons.

    Over the last decade, reports about detention have been issued by many organizations besides. the ABA,,including.the Lawyers Committee for Human Rights, Human Rights Watch, and the Women's Commission on Refugee Women and Children. These reports consistently document incidents of mistreatment by detention officers, inappropriate placements of unaccompanied minors, absence of legal information and a multitude of problems relating to access to representatives, including the isolated location of facilities, limited consultation hours, and restricted use of telephones. Lawsuits against the INS have similarly demonstrated that unrepresented detainees are often misinformed about the legal process and pressured into abandoning their claims. Orantes-Hernandez v. Thornburg, 919 F.2d 549 (9th Cir. 1990).
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    Access to legal representation is vital to individuals facing deportation.(see footnote 30) A lawyer, or qualified legal representative, makes an assessment of legal options and eligibility for relief, prepares the formal applications, identifies witnesses and gathers supporting documentary evidence, and helps the applicant focus on what is relevant to meet his or her burden of proof. While valuable for all people in immigration proceedings, the assistance of counsel is indispensable for asylum applicants in detention who have no access to sources of evidence or witnesses, and often have linguistic, cultural and psychological disabilities that make it extremely difficult to clearly articulate their experiences or make them hesitant to discuss their views with government officials.

Mr. (James) Madison's Report, General Assembly of Virginia (January 7, 1800) (reprinted in The Virginia Commission on Constitutional Government, The Kentucky-Virginia Resolutions and Mr. Madison's Report of 1799, 36 (1960)).

    Legal assistance also facilitates the smooth functioning of the system. The immigration laws are more complex than ever and the case law is rapidly evolving. At the same time, new, accelerated procedures, such as expedited exclusion, present almost insurmountable barriers to achieving asylum or other forms of relief for unrepresented individuals who lack a knowledge of our English language and legal system.

    Asylum seekers and others in removal proceedings are not entitled to appointed counsel under the Sixth Amendment as are criminal defendants. On the contrary, they have only a ''privilege'' of representation by counsel ''at no expense to the Government.'' 8 U.S.C. 1242(b)(4)(A). Applicants who are indigent must find attorneys or private programs to represent them for free or at reduced cost, or they must represent themselves. As a result, the responsibility has fallen on the private bar and nonprofit organizations to offer free legal assistance to much of the detained population.
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    In spite of efforts by the bar and other organizations to provide pro bono assistance, detained individuals by virtue of their incarceration are rarely able to secure representation. While low-cost or pro bono representation is available in major metropolitan communities throughout the United States, INS detention facilities are commonly located in isolated areas where such assistance is not available or grossly inadequate given the size of the detained population. As a result, individuals who are not deportable or who may qualify for relief face imminent removal because they are unaware of their rights or cannot effectively exercise them, while others may prolong detention by ignorantly applying for relief for which they are not eligible.

    It is in the interests of both the INS and U.S. taxpayers, as well as the bar, that scarce public resources are not spent detaining persons who do not pose a threat to the community and who are not flight risks. Accordingly, we offer the following recommendations:

1. Pre-hearing detention should be limited.

    The ABA has a long-standing position that the INS should detain aliens only in extraordinary circumstances, such as to protect national security or address serious threats to public safety, and in the least restrictive environment necessary. Freedom from physical detention lies at the core of the liberty interest protected by the Due Process Clause. Foucha v. Louisiana, 112 S. Ct. 1780 (1992). Accordingly, the government may deprive an individual of that interest only if it can demonstrate that such deprivation actually serves a significant and legitimate objective. Further, individual custody determinations by immigration judges are the minimum the government can provide to ensure that due process rights are protected.
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    In general, persons with pending removal hearings should be released from custody absent specific reasons to maintain them in detention. See, e.g., Matter of Patel, 15 I&N Dec. 666 (BIA 1976). Any individual who (1) has family ties in the community, (2) is not a danger to the community, (3) is likely to participate in the resolution of his or her immigration claims, and (4) has posted reasonable bond should qualify.

2. Prehearing release programs should be developed.

    The INS should explore alternative means of ensuring appearance at court proceedings, such as supervised conditional prehearing release programs employed in the federal and state criminal justice systems. The high cash bonds currently required of detainees prevent most people from ever being released from detention, which in turn reduces their chance of securing legal representation. A supervised release program would benefit these individuals and the process, while freeing scarce detention space for only those individuals who require it.

    To its credit, the INS implemented a pilot program in May 1990 with the Lawyers Committee for Human Rights to parole up to 200 asylum seekers who were detained pending their exclusion hearings in Los Angeles, Miami, New York, and San Francisco. Another supervised program, the Appearance Assistance Project, was subsequently conducted in New York by the Vera Institute. The national implementation of a prehearing release program for persons awaiting proceedings is long overdue. We offer our assistance in developing fair release standards and procedures.

3. ''Mandatory detention'' should be terminated and the ''Temporary Period Custody Rule'' (''TPCR'') should be reinstated with modifications.
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    The 1996 immigration reform law requires the Attorney General to take into custody certain categories of aliens. Under the transition period custody rule, IIRIRA §303, the Attorney General was permitted to release an alien ''lawfully admitted to the United States'' who satisfied that he or she ''will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.'' When those provisions expired in October 1998, lawful permanent residents, refugees, and other lawfully admitted aliens became subject to the Act's ''mandatory detention'' provisions, further burdening the INS detention system and the nonprofit legal community.

    There appears to be some confusion regarding who is being detained under the mandatory detention provisions. Although some press stories suggest that these are all dangerous criminal or illegal aliens, among those detained are long-time permanent residents who have never been incarcerated before or whose brief sentences for non-violent offenses were completed years ago. In many cases, these individuals were not deportable prior to the 1996 amendments or would have been eligible for relief if proceedings had been instituted before the law changed. The ABA receives calls daily from friends and family members of such individuals.

    Last week, for example, we received a call from a man in Georgia regarding a member of his church congregation. According to the caller, the individual concerned has been a permanent resident since the 1980's and was arrested by the INS at his naturalization interview in December 1998 after passing his naturalization exam. He fully acknowledged to the INS that in 1990 he was convicted of simple possession of marijuana and received a $25.00 fine, a one-year suspended sentence, and three years probation. The INS is holding him without bond in a jail in Gadsden, Alabama, pending his removal hearing next month.
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    Such mandatory detention without consideration of release or providing a fair hearing regarding the conditions of custody appears to be unconstitutional. In 1988, Congress passed a similar provision in the Anti-Drug Abuse Act, amending INA §242(a)(2), to preclude the release of aliens convicted of an aggravated felony. Numerous cases were successfully brought in the courts challenging the constitutionality of the amended INA §242(a)(2) on substantive and procedural due process grounds. Leader v. Blackman, 744 F. Supp. 500 (S.D.N.Y. 1990); Joe v. Thornburgh, Case No. 90–12313–2 (D. Mass. Oct. 26, 1990); Paxton v. INS, 745 F. Supp. 1261 (E.D. Mich. 1990); Fernandez-Santander v. Thornburg, 751 F. Supp. 1007 (D. Me. 1990), vacated and remanded without opinion, 930 F.2d 906 (1st Cir. 1991); Kellman v. District Director, U.S. INS, 750 F. Supp. 625 (S.D.N.Y. 1990); Probert v. INS, 750 F. Supp. 252 (E.D. Mich. 1990), aff'd on other grounds, 954 F.2d 1253 (6th Cir. 1991); Agunobi v. Thornburgh, 745 F. Supp. 533 (N.D. Ill. 1990).

    The courts have consistently found that the failure to provide a custody hearing in cases where a deportation proceeding is pending is an excessive restriction on the alien's liberty and, as such, violates substantive due process under the Fifth Amendment. Fernandez-Santander, 751 F. Supp. at 1011; Kellman, 750 F. Supp. at 628; Joe, Case No. 90–12313–2 (D. Mass. Oct. 26, 1990); Leader, 744 F. Supp. at 508; Paxton, 745 F. Supp. 1261.

    The courts also found that the ''[f]ailure to provide a hearing prior to detention constitutes a violation of procedural due process.'' Probert, 750 F. Supp. at 256. See also Paxton, 745 F. Supp. at 1206; Fernandez-Santander, 751 F. Supp. at 1101. Furthermore, in Leader, 744 F. Supp. at 508, the court found that ''[a] bail hearing would not pose significant fiscal or administrative burdens on the government and would greatly minimize the risk of erroneous deprivation of a liberty interest.'' (citing the balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). See also Paxton, 745 F. Supp. at 1266; Kellman, 750 F. Supp. at 628.
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    A series of related cases successfully challenged the mandatory detention of lawful permanent residents in exclusion proceedings on procedural and substantive due process grounds. See St. John v. McElroy, 917 F. Supp. 243 (S.D.N.Y. 1996); Alba v. McElroy, No. 96 Civ. 8748 (DLC), 1996 WL 695811 (S.D.N.Y.); Thomas v. McElroy, NO. 96–CV–5065 (JSM), 1996 WL 487953 (S.D.N.Y.); Cruz-Taveras v. McElroy, No. 96–CV–5068 (MBM), 1996 WL 455012 (S.D.N.Y.); Ekekhor v. Aljets, 979 F. Supp. 640 (N.D. Ill. 1997). But see Richardson v. Reno, 162 F.3d 1338 (11th Cir. 1998).

    In re-enacting mandatory detention in 1996, the Congress disregarded this line of authority. A new body of case law, however, is rapidly developing which holds that detention without bond pending a determination of deportability violates, on its face, the constitutional right to due process. See Martinez, et al. v. Greene, 28 F. Supp.2d 1275 (D.CO. 1998); Cabreja-Rojas v. Reno, 999 F. Supp. 493 (S.D.N.Y. 1998); Zadvydas v. Caplinger, 986 F. Supp. 1011 (E.D. LA. 1997); Morisath v. Smith, 988 F. Supp. 1333 (W.D. WA. 1997).

    Given this experience with mandatory detention, we recommend that the TPCR be reinstituted promptly and permanently and that individuals be provided custody hearings before immigration judges to ensure that due process rights are protected.

4. New INS Detention Standards should be implemented at all local and state operated facilities that the INS utilizes to house its detainees.

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    The INS recently approved and issued Detention Standards relating to detainees' access to counsel and legal information. These ''standards'' (issued January 29, 1998) cover detainees' access to telephones, visitation policy, presentations of group legal rights and access to law libraries, as well as a variety of other aspects of detention. This is the first time the INS has instituted standards that apply to all INS-run and operated facilities and will hopefully eliminate the variations that have existed from detention center to center regarding attorney access to detained clients.

    In particular, the ABA is pleased that attorneys now have access to meet with clients at least eight hours a day, seven days a week; that group legal rights presentations are now being permitted in all INS facilities; that all facilities will have telephones which provide for debit calls as well as programmed pro bono numbers; and that each facility will have a law library with extensive immigration law materials. We also commend the INS Commissioner for appointing a facilitator to address detention problems that are not resolved at the local level. In many locations, dramatic improvements have been achieved as a result of the standards, and we applaud this. In other facilities (i.e., Krome), recent visits reveal that most of the standards have not been implemented and many access problems continue.

    We are disappointed, however, that the standards were not promulgated into regulation and that the common practice of transferring detainees from one remote facility to another without notifying counsel has not been addressed. Most importantly, we are troubled that the standards apply only to seventeen INS Service Processing Centers and INS-operated contract detention facilities. Over sixty percent of immigration detainees are housed by the INS in non-INS facilities where the access standards do not apply, generally county and local jails with which the INS contracts for bed space. In view of the increasing reliance on such non-INS facilities, it is essential that the INS require implementation of the access standards in these non-INS facilities and refrain from utilizing facilities that do not meet these standards.
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    It should be noted that the INS currently plans to detain arriving Central Americans in such local jails and has requested $80 million for this purpose. It is not appropriate to hold any administrative detainee in a criminal facility, and even less appropriate to use such facilities to detain people escaping the economic and emotional devastation of Hurricane Mitch. We urge a reconsideration of this proposal and a serious evaluation of alternative means of ensuring appearance at immigration proceedings that would also minimize the agency's fiscal burdens.

5. Minors should be detained in the least restrictive environment.

    For many years, the INS' policy of routinely incarcerating unaccompanied minors was inconsistent with the nationally recognized juvenile justice standards, including the IJA–ABA Juvenile Justice Standards. Although the INS continues to improve the placements of juveniles, detained juveniles in removal proceedings—unlike juveniles in other types of proceedings—are not provided appointed counsel and are severely impeded in securing counsel to defend against expulsion. Therefore, we have recommended to the Department of Justice that incarcerated juveniles automatically receive custody redetermination hearings before immigration judges even if not specifically requested, be placed in the ''most family-like setting,'' and have guardians ad litem appointed for them.

6. Immigration Court appearance rules should be amended to recognize representation limited to bond and custody matters.

    Many individuals detained at taxpayer expense could post reduced bonds if they had counsel to assist them in the bond redetermination process. Unfortunately, lawyers in communities with large INS facilities are deterred from appearing in bond cases because of concerns that they will be bound to continue representation thereafter, whether or not their client is released and whether or not he or she can afford counsel for the merits hearing.
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    An alien in proceedings should not have to forego representation at the custody stage solely because available counsel is unable to commit to representation through the merits hearing. Conversely, if the alien is assisted at the custody hearing and is released pursuant to a lowered bond, he or she would be in a better position to secure counsel for the remaining court proceedings. As we have previously recommended, to facilitate representation in the custody redetermination process, EOIR should amend its rules to recognize appearances limited to bond and custody matters.

    The history, conditions, and consequences of immigration detention, from Ellis and Angel Islands to the present day, are well-documented. The ABA has numerous concerns about the growing reliance on immigration detention. Because it both deprives individuals of their liberty and significantly impacts on their ability to secure and maintain a working relationship with counsel, it should be invoked in only extraordinary situations and be subject to review hearings, and other (potentially less costly) means of ensuring an alien's appearance should be instituted. Administrative detainees with no criminal records ought not be detained in criminal facilities, and bona fide asylum seekers should not be detained at all. Allegations of physical mistreatment of detainees should be investigated.

    We offer these suggestions in the spirit of creating a more just and efficient manner of treating detained persons and welcome the opportunity to discuss them with you more extensively. We request that you include this letter in the record of your hearings.

Sincerely,

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Robert D. Evans, Director.

cc: Members, Subcommittee on Immigration and Claims

    Ms. JACKSON LEE. I thank the chairman.

    Mr. SMITH. Thank you. The gentleman from Indiana, Mr. Pease, is recognized.

    Let me thank him. Ms. Jackson Lee and I have to be here and he does not. He made a special effort now to come back twice from votes. We appreciate his contributions.

    Mr. PEASE. Thank you, Mr. Chairman and panelists who have been with us today on this important subject. I will be brief.

    Bishop, I believe I understood you to say that you disagree with the current law in some areas. You mentioned what those were. Did I understand that correctly?

    Mr. DIMARZIO. Yes.

    Mr. PEASE. Is it your position that there were portions of the law which should not be enforced?

    Mr. DIMARZIO. Should be amended. The law should be enforced as it is, but it should be amended because the unintended consequences of this are reeking havoc in many areas of the immigrant community.
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    Mr. PEASE. So, you are an advocate for amending the law, but enforcing the law as it is until such time as it is amended.

    Mr. DIMARZIO. We are a Nation of laws. We have no choice.

    Mr. PEASE. In this case, are you speaking on your on behalf, on behalf of the Catholic Bishops, or the Catholic Conference?

    Mr. DIMARZIO. On behalf of the United States Catholic Conference.

    Mr. PEASE. Thank you very much.

    Mr. SMITH. Thank you, Mr. Pease.

    I understand there are no further questions. We thank our panel for being here today and making a contribution to the subject at hand.

    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    Mr. SMITH. We are adjourned.

    [Whereupon, at 12:30 p.m., the committee was adjourned.]

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A P P E N D I X

Material Submitted for the Hearing Record


U.S. Department of Justice,
Immigration and Naturalization Service,
Washington, DC, March 10, 1999.
Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR MR. CHAIRMAN: I am writing to you to clarify certain aspects of my February 25th testimony before the Subcommittee on Immigration and Claims. First, in my written and oral testimony, I indicated that the INS' enacted appropriations for Fiscal Year 1999 contained ''$56 million less than the Administration's FY 1999 request for detention.'' I intended this phrase to describe our detention and removal program more broadly, but I recognize that the subcommittee understood the term ''detention'' as referring only to detention bedspace and I regret this misunderstanding.

    The funding totals I used to describe Congress' appropriation action included certain detention items not directly related to the actual detention capacity (net new beds for detention), and therefore did not fully reflect the fact that Congress provided funding for approximately 475 of the total of 629 new beds requested for detention in the FY 1999 budget. I would like to point out that the calculations used in the testimony included the cost of activities such as transportation of aliens and Public Health Service reimbursements, which support our entire detention operations. My use of these numbers did not fully reflect the commitment of Congress in providing the resources that it did for FY 1999, as we deal with the crucial issue of criminal alien detention and removals.
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    I would also like to clarify that the Administration's FY 1999 request for detention space did not include resources to deal with the effects of the expiration of the Transition Period Custody Rules (TPCR). Our hope was that some extension of TPCR would be feasible, thus obviating the need to ask for added resources.

    Appropriations Committee staff have pointed out that INS used $25 million in breached bond detention funds as an offset for increased Naturalization funding in the fall of 1999. The Committee notes that these funds could have been used to provide additional detention capacity. I acknowledge that we had a choice in the use of these funds.

    My testimony also stated that we planned to meet our hiring goal for Border Patrol Agents. I want to clarify that our planning has been to meet the 1000 agents hiring goal as we have done in recent years. However, we are experiencing serious labor market difficulties and will fall short of our goal in FY 1999. At this time, we anticipate hiring 800-1000 agents this year with the remainder to be hired in FY 2000. We are still doing estimates of the numbers of net new agents this hiring will produce based on varying levels of attrition.

    Initiatives that we previously successfully used to recruit new agents are no longer providing positive results at the same rate. Although we have more applicants, we have higher declination rates as well as ''no shows'' to take the examination. In addition, more applicants are failing other pre-employment processes (background investigations and medical examinations). We will continue to maintain our high standards and will not clear candidates without full confidence in their suitability. We attribute the decline to the strong economy and low unemployment. The military and other law enforcement and Government agencies are experiencing similar problems. In addition, we face competition with other agencies that are recruiting for positions with comparable qualification requirements but higher pay or journeyman grade levels.
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    We are continuing our aggressive recruiting campaign as well as developing alternative initiatives that we hope will attract additional candidates. However, the new initiatives are not likely to provide short-term yield. Because of the time it takes to implement them and the time it takes an applicant to complete the entire process, it is not realistic to expect them to have much yield by the end of the Fiscal Year.

    If there are any changes in our estimates we will update you. I hope that this letter has helped to clarify these two issues. Please do not hesitate to contact me if you need further information.

Sincerely,

Doris Meissner, Commissioner.

Enclosure

cc:

Sheila Jackson Lee
Ranking Minority Member











(Footnote 1 return)
112 S.Ct. 1780 (1992)


(Footnote 2 return)
Under revised provisions for the removal of aliens established in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104–208, aliens charged by INS as deportable are now placed in ''removal'' proceedings as opposed to ''deportation'' proceedings. Proceedings initiated before the effective date of the 1996 Act would be in ''deportation'' proceedings. For consistency, we refer to proceedings as removal hearings or proceedings throughout this testimony.


(Footnote 3 return)
In June 1998, the IHP was subsumed under a broader program called the Institutional Removal Program (IRP). The IRP is to capture data for all removals that originate in an institutional setting, including the IHP, reinstatements of prior final removal orders, and administrative removal orders. During the period covered by our review, the IRP was proposed but not official. Therefore, this testimony provides information almost exclusively on IHP performance.


(Footnote 4 return)
Criminal Aliens: INS' Efforts to Identify and Remove Imprisoned Aliens Need to Be Improved (GAO/T–GGD–97–154, July 15, 1997).


(Footnote 5 return)
The five states were Arizona, California, Florida, New York, and Texas.


(Footnote 6 return)
Criminal Aliens: INS' Efforts to Remove Imprisoned Aliens Continue to Need Improvement (GAO/GGD–99–3).


(Footnote 7 return)
We eliminated Arizona from our current study because the Subcommittee request letter specified that we focus on BOP and the four selected states. Arizona accounted for a small number (626 of 17,320) of the total cases in our 1995 analysis.


(Footnote 8 return)
INS' data on the IHP were limited because INS had not identified all individuals who were foreign-born inmates in the BOP and state prison systems and did not maintain a database of these individuals that would enable it to routinely track the IHP status of all potentially deportable inmates. Therefore, as was the case in fiscal year 1995, INS could not readily determine where individuals were in the IHP process, nor could it readily provide summary information on the number of criminal aliens who had committed aggravated felonies.


(Footnote 9 return)
Numbers do not sum to 100 percent due to rounding.


(Footnote 10 return)
INA Section 236(c)(1)


(Footnote 11 return)
Testimony of INS Commissioner Meissner before the Senate Subcommittee on Immigration, September 16, 1998.


(Footnote 12 return)
''Man Held by INS Dies; Suicide Termed Likely,'' Los Angeles Times (Oct. 9, 1998); Dan Malone, ''Immigrant May be Deported over One-Time Misdemeanor,'' Dallas Morning News (August 17, 1998); Patrick J. McDonnell, ''Deportation Shatters Family,'' Los Angeles Times, p. B1 (March 14, 1998); Pamela Constable, ''Years Later, Immigrants Pursued by Their Pasts; Even Minor Offenses Now Mean Deportation,'' Washington Post, p. B1 (February 24, 1997).


(Footnote 13 return)
Patrick J. McDonnell, ''Deportation Shatters Family,'' Los Angeles Times, 3/23/98, p. B1.


(Footnote 14 return)
Courts have found that indefinite confinement violates substantive due process rights. See, e.g. Zadvyas v. Caplinger, 986 F. Supp. 1011 (E.D. La. 1997)(appeal pending); Truong Tan Tam, No. CIV S–98–0183, 1998 WL 466584 (E.D. Calif. 1997).


(Footnote 15 return)
U.S. v. Zadvydas, 986 F. Supp. 1011 (E.D. LA. 1997).


(Footnote 16 return)
Haitian Center Council, Inc. V. Sale (HCC), 823 f. SUPP. 1028, 1045 (e.d.n.y. 1993)(vacated per settlement).


(Footnote 17 return)
Accardi v. Shaughnessy, 347 U.S. 260.


(Footnote 18 return)
U.S. Bishops—Committee on Migration, One Family Under God, September, 1995, p. 15.


(Footnote 19 return)
Testimony of the Lawyer's Committee on Human Rights before the Senate Judiciary Committee Subcommittee on Immigration, September 16, 1998. (At the Wackenhut and Elizabeth detention facilities, asylum-seekers are given a bed in a large holding area where they will live with many other detainees for at least three or four months, and perhaps for a year or more.)


(Footnote 20 return)
Women's Commission for Refugee Women and Children, ''Liberty Denied: Women Seeking Asylum Imprisoned in the United States'' (April, 1997); Human Rights Watch, ''Locked Away: Immigration Detainees in Jails in the United States,'' September, 1998; Florida Immigrant Advocacy Center, ''Krome's Invisible Prisoners: Cycles of Abuse and Neglect'' (July, 1996).


(Footnote 21 return)
Human Rights Watch, ''Locked Away: Immigration Detainees in Jails in the United States,'' (September, 1998).


(Footnote 22 return)
One must not confuse the number of apprehensions with the number of unauthorized crossers. An apprehension is recorded when an individual is arrested by the Border Patrol. In some cases, it is not clear how many times, the same individual has been apprehended. Potentially, 100 apprehensions in one day may only represent 20 people who were each caught five times trying to cross the border. Therefore, apprehensions correlate better with unauthorized crossings than with unauthorized crossers.


(Footnote 23 return)
The El Paso sector's apprehensions level dropped from 285,781 in fiscal 1993 to 79,688 in fiscal 1994, essentially because their agents were deployed along the 20-mile metropolitan border between El Paso and Juárez in a highly deterrent ''show of force'' mode.


(Footnote 24 return)
Note that this study makes no attempt to estimate staffing levels required to control the U.S.-Canada border or interior enforcement problems.


(Footnote 25 return)
They are, in effect, crossing the border without proper authorization, i.e., documentation, or they are crossing in areas other than authorized ports of entry.


(Footnote 26 return)
These population figures come from the Mexican mid-decade census. It should be noted that rapid growth has occurred in Mexican cities along the U.S.-Mexico border over the past decade. One can expect that these 1995 figures are low, both because of the growth rate and the possibility of an undercount inherent in the census system.


(Footnote 27 return)
Bean, Frank D., Roland Chanove, Robert G. Cushing, Rodolfo de la Garza, Gary P. Freeman, Charles W. Haynes, and David Spener. 1994. Illegal Mexican Migration and the United States/Mexico Border: The Effects of Operation Hold the Line on El Paso/Juarez. Washington D.C.: U.S. Commission on Immigration Reform.


(Footnote 28 return)
In actuality, the deployment of agents varied from one every 50 yards to one every quarter-mile during the initial months of Hold the Line. See Bean et. al., 1994. Page 7.


(Footnote 29 return)
Only line stations receive trainees. Interior stations are manned with agents who are fully qualified at the journeyman level and higher.


(Footnote 30 return)
If the banishment of an alien from a country into which he has been invited . . . where he may have formed the most tender of connections, where he may have vested his entire property and acquired property . . . and where he may have nearly completed his probationary title to citizenship . . . , if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the norms can be applied.