SPEAKERS CONTENTS INSERTS
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CLEAR LAW ENFORCEMENT FOR CRIMINAL ALIEN REMOVAL ACT OF 2003 (CLEAR ACT)
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
OCTOBER 1, 2003
Page 2 PREV PAGE TOP OF DOCSerial No. 56
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
Page 3 PREV PAGE TOP OF DOCJOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Immigration, Border Security, and Claims
Page 4 PREV PAGE TOP OF DOCJOHN N. HOSTETTLER, Indiana, Chairman
JEFF FLAKE, Arizona
MARSHA BLACKBURN, Tennessee
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHRIS CANNON, Utah
STEVE KING, Iowa
MELISSA A. HART, Pennsylvania
SHEILA JACKSON LEE, Texas
LINDA T. SÁNCHEZ, California
ZOE LOFGREN, California
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
GEORGE FISHMAN, Chief Counsel
ART ARTHUR, Full Committee Counsel
CINDY BLACKSTON, Professional Staff
NOLAN RAPPAPORT, Minority Counsel
C O N T E N T S
OCTOBER 1, 2003
Page 5 PREV PAGE TOP OF DOC The Honorable John N. Hostettler, a Representative in Congress From the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims
The Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims
The Honorable John M. Morganelli, District Attorney, Northhampton County, Pennsylvania
Mr. Kris Kobach, Associate Professor of Law, University of Missouri Kansas City
Mr. James R. Edwards, Jr., Ph.D., Adjunct Fellow, Hudson Institute
Mr. Gordon Quan, Mayor Pro Tem, Houston, Texas
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Material Submitted for the Hearing Record
Statement of the Honorable John N. Hostettler
Statement of the Honorable Shelia Jackson Lee
Statement of the Honorable Steve King
Statement of the Honorable Melissa Hart
Statement of the Honorable Zoe Lofgren
Statement of the Honorable Linda T. Sánchez
Statement of the Honorable Charles Norwood
General Order Number 5005 Houston Police Department
Congressman Norwood questions for Mayor Pro Tem Quan
Mayor Pro Tem Quan answers to Congressman Norwood questions
James R. Edwards, Jr., Adjunct Fellow, Hudson Institute Additional responses to questions
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James R. Edwards, Jr., Adjunct Fellow, Hudson Institute Center for Immigration Studies Backgrounder
Letter from April Gallop 9/11 Families to Secure America, 9/11 Families united to Bankrupt Terrorism, September 11th Families
Friends of Immigration Law Enforcement Statement
Congresswoman Sánchez and Congresswoman LofgrenCalifornia Police Chiefs Association Inc. letter
Congresswoman SánchezFederal Hispanic Law Enforcement Officers Association
Congresswoman Jackson LeeAmerican Civil Liberities Union Statement
Congresswoman Jackson LeeMexican American Legal Defense and Educational Fund
Congresswoman Jackson LeeLeslye E. Orloff Immigrant Women Program NOW Legal Defense and Educational Fund
Congreswoman Jackson Leeletter from numerous organizations
Page 8 PREV PAGE TOP OF DOC Congressman SmithArticle in New York Post by Kris Kobach on Freedom Riders
Congresswoman LofgrenLetter CA Legislators
Congressman FlakeGrover Norquist, President of American For Tax Reform
Congressman FlakeGrover Norquist, President of American For Tax Reform letter to President Bush
Letter to Congressman Norwood from U.S. Border Control
Letter to Congressman Norwood from American Council for Immigration Reform
Letter to Congressman Norwood from National Sheriffs' Association
National Sheriffs' Association Resolution 20033
Letter to Congressman Norwood from Southern States Police Benevolent Association, Inc.
Letter to Congressman Dennis Moore from Lenexa, Kansas Police
Letter to Congressman Dennis Moore from SAFE HOME
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Congresswoman LofgrenLetter to Senator Kennedy from Boston Police
Congresswoman LofgrenLetter to Congressman Stark from City of Newark, CA Police
Letter to Chairman Sensenbrenner from National Center for Lesbian Rights
Letter to Chairman Sensenbrenner from Christain Coalition of America
National Taxpayers Union Foundation Press Release
National Taxpayers Union Foundation Policy Paper ''Borderline Infraction: Unsafe Borders, Complacent Government?''
Gordon Quan's email response to Emily E. Sanders, Subcommittee Clerk, Subcommittee on Immigration, Committee on the Judiciary, regarding Representative Hostettler's question concerning Walter Sorto
CLEAR LAW ENFORCEMENT FOR CRIMINAL ALIEN REMOVAL ACT OF 2003 (CLEAR ACT)
WEDNESDAY, OCTOBER 1, 2003
House of Representatives,
Subcommittee on Immigration,
Page 10 PREV PAGE TOP OF DOCBorder Security, and Claims,
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 4:30 p.m., in Room 2237, Rayburn House Office Building, Hon. John N. Hostettler [Chairman of the Subcommittee] presiding.
Mr. HOSTETTLER. The Subcommittee will come to order.
Today, the Subcommittee is holding a hearing to examine H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal Act of 2003, or the CLEAR Act. The CLEAR Act clarifies the authority of State and local officers to assist the Federal Government in enforcing the immigration laws. It provides a means for Federal, State, and local law enforcement officers to work together to apprehend, detain, and remove illegal aliens.
This is timely legislation. Our Nation faces an illegal immigration crisis of epic proportions. The former INS estimated that there were 5 million illegal aliens in 1996 in the United States. That number ballooned to 8 million in the past 2 years, and some estimate the illegal population in the United States to be upwards of 10 million today.
For the last few years, some 500,000 illegal aliens have been entering the United States annually, despite the fact that we have strengthened control at our borders. Why would aliens take the risk of crossing in rugged and treacherous terrain or place their lives in the hands of ruthless smugglers? Because they believe that once in this country, they can live and work here without fear of detection.
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In the late 1990's and the early part of this decade, illegal aliens and unscrupulous employers took advantage of the disorganized INS, an agency that had more missions, it seems, than will or means to carry out. Since the September 11th attacks, those aliens have exploited the fact that immigration enforcement resources have been diverted to the fight against terror. This bill would aggressivelyexcuse me, would expressly give State and local police the resources and authority to assist in immigration enforcement. Many police officers have sought such authority to assist the Federal Government in the vital task of enforcing this Nation's immigration laws.
There are those who oppose the bill, however. Some opponents argue that local law enforcement officers should not have to enforce the Federal immigration laws. I would note that participation in enforcement under the bill is voluntary. Other opponents argue that local police have no place assisting enforcement of the Federal immigration laws. I would note that local police help other Federal agencies, such as the DEA and FBI. I would also respond that having law enforcement entities work together, as occurs daily on Joint Terrorism Task Forces, is the best way to ensure the safety of the American people.
Still others have argued that having local police officers assist ICE, Immigration and Customs Enforcement, in enforcing the immigration laws would damage relations between local police and immigrant communities.
As I understand these arguments, aliens in those communities are in a vulnerable position where they are preyed upon by thugs and other criminals, opportunists, and abusive spouses. Critics are concerned that such aliens will be unwilling to go to police who assist immigration officers.
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In response, I first note that it makes no sense to argue that in a free and democratic society the weak are better protected by concealment and deception than they are by the rule of law. The concept that aliens are more secure residing in a quasi-legal underworld in which their illegal status is hidden by police, otherwise sworn to uphold the law, is illogical at best. Such arguments also fail to take notice of two facts: first, police and prosecutors would retain the discretion, even under the CLEAR Act, not to take action with respect to the witnesses to or the victims of crime; second, immigrant victims of many crimes are eligible for relief, particularly under the U visa program. Battered spouses are eligible for additional relief, including cancellation of removal.
Arguments that local immigration enforcement would harm relations between police and communities are also unduly speculative because they assume that local sanctuary policies prompt alien communities to trust the authorities. What is not speculative, however, is that illegal aliens who are arrested by local police but are released without being turned over to ICE are free to commit additional crimes often against other immigrants.
Enrique Alvarez, for example, was an illegal alien at the time that he allegedly kidnapped and assaulted a 9-year-old victim in early 2003. He was also illegal 3 years earlier in 2000 when, it has been reported, the San Jose police arrested him on suspicion of auto theft. It does not appear, however, that San Jose ever notified INS about him following that arrest. The Committee is currently investigating Alvarez's status and his criminal record.
Similarly, in December 2002, a 42-year-old mother of two was abducted and assaulted in Queens, New York, as discussed in a February 2003 hearing on that matter. Five aliens were arrested in connection with that assault. Four of those aliens entered the United States illegally, and three of them had been previously arrested by the NYPD but not reported to the INS.
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Where local authorities have notified immigration authorities about criminal aliens, however, additional crimes have been avoided. For example, press reports indicate that fingerprints that INS took of Lee Boyd Malvo proved crucial in linking Malvo and John Muhammad to the capital area sniper attacks in the fall of 2002 and an unsolved murder in Alabama. INS reportedly took those fingerprints after it arrested Malvo on a tip from local authorities in Washington State that Malvo was an illegal alien.
Opponents of this legislation have also asserted that allowing local police to assist in enforcing the immigration laws would lead to racial profiling. These concerns fail to appreciate the experience that local police would bring to immigration enforcement. State and local officers are trained and instructed in how to build cases without violating constitutional protections. Critics fail to explain why enforcing the immigration laws would present different constitutional challenges from enforcing criminal law.
Further, some who oppose this legislation argue that immigration law is too complex to be entrusted to local police. Again, I believe that this agreement sells local law enforcement unfairly short. An officer who can unravel a complex criminal conspiracy should be able to determine whether an alien has overstayed a visitor's visa.
In addition, I note that the CLEAR Act provides tools for local police to use in determining whether an alien is illegally present in the United States. The act allows for training to be made available to those officers and that DHS provide them with a training manual.
The CLEAR Act also expands the amount of information available to local law enforcement through NCIC. This information is in addition to the information currently available to local police through ICE's Law Enforcement Support Center, or LESC. Further, most of the immigrant violations that local police would encounter would not take in-depth analysis. The majority of aliens removed from the United States are aliens who have entered without inspection or who have overstayed nonimmigrant visas. Both of these violations can be uncovered through simple questioning. The LESC can also provide assistance in making this determination.
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In summary, I believe that this legislation is an appropriate response to the immigration crisis that is currently facing our Nation. Those who would argue that enforcement of the immigration laws should be left solely to ICE fail to appreciate the interconnected nature of local, State, and Federal law enforcement presently. It would appear that some critics of this bill would prefer to make ICE a pariah agency, isolated from State and local police officials who would hide rather than identify immigration violators. I doubt, however, that those critics would be willing to pay the costs, either fiscal or societal, of such policy.
I turn now to the Ranking Member, my colleague, Ms. Jackson Lee from Texas, for any opening statement she might like to make.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I want to note for the panelists and the Members that the Chairman and myself have enjoyed a collegiate relationship in working on these issues, although in many instances we disagree. But I certainly appreciate the fact that he has been open and willing to listen to some of my concerns, and I would look forward, as we are having the hearing on the CLEAR Act, that we can move quickly to have a hearing on the smuggling legislation that I have authored and would hope that we'd have that opportunity to do that in the very near future.
Even with this collegiate attitude, let me say, as I open my remarks, that I believe that the CLEAR Act is both unworkable, burdensome, and is an unfunded mandate. And I truly believe that the security of this Nation is really founded on better intelligence. That is how we will secure the homeland. And many of the aspects of the CLEAR Act are already included in present law enforcement opportunities.
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There's not a State in our Nation nor a city in our Nation that is not facing its own budget crisis. I cannot imagine the burden that the CLEAR Act will implement on local law enforcement without any sources and resources to supplement the already tight budgets of our law enforcement officers.
Since 9/11, the great tragedy that this country experienced, we have asked our first responders to be on the front line of many, many aspects of homeland security. As a member of the U.S. Homeland Security Committee of the House of Representatives, I can assure you that the burden is enormous, that police now are having to provide added equipment, that they are required now in certain areas, in certain large efforts in the community, festivals and other large gatherings, to add extra-manned and extra-womanned police officers, if you will, to protect our community.
In a few months, though we're excited about it, Houston, the fourth largest city in the Nation, will host the Super Bowl. I can assure you that our law enforcement will probably not be able to find one extra man-hour or woman-hour that they can spare as they look to host one of the Nation's proud sports activities.
As it relates to the point that the Chairman made with respect to Mr. Malvo, the sniper, which we all found to be a heinous and horrific act, let me suggest that he was a minor in removal proceedings, and he was released by a judge. The CLEAR Act would do nothing to have prevented Mr. Malvo from being released.
So, Mr. Chairman, I have serious reservations about the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, H.R. 2671. State and local police already have authority to enforce criminal laws, regardless of the immigration status of the perpetrator of the crime. They also have the authority to notify Federal immigration agents about foreign nationals who have committed crimes. The CLEAR Act would go beyond the enforcement of criminal laws and put pressure on State and local police to investigate and enforce similar immigrationcivil immigration laws.
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Among other things, the CLEAR Act would require State and local governments to enact statutes that expressly authorize law enforcement officers to enforce immigration laws during the course of their duties. It would sanction governments that fail to enact such statutes by stopping their Federal reimbursement for incarcerating noncitizens. What a horrible penalty for innocent municipalities who are trying to do the very best with the meager resources and responsibilities they have.
The Federal CLEAR Act should not break the harmony that cities have created between their immigrant community who are law-abiding citizens. In addition, police do have the authority to stop individuals and determine whether they have violated civil laws, such as having an expired driver's license. In that instance, if they come in contact with someone who, by checking their license plate or something else, is engaged or has engaged in a criminal act, they certainly have the authority to deal with that individual.
Under the CLEAR Act, State and local law enforcement would have 10 days to report background information on undocumented aliens they apprehend, and the State and local law enforcement agencies would have to explain any failure to do so.
Mr. Chairman, I have been a member of the Houston City Council and am delighted to have the Mayor Pro Tem here present with us today, Gordon Quan, who you will introduce, unless you share that opportunity with me. He's an outstanding member of our City Council. He has chaired and organized the city's Immigration Task Force or Council Committee, and he has led in a very able way.
Page 17 PREV PAGE TOP OF DOC We can assure you that that would be an enormous, untenable burden to say that our law enforcement had 10 days to report the background information when they're dealing on the various incidences and crime and other assaults and matters that they have to confront to protect and secure those citizens in the city of Houston and others. This would be just unrealistic.
This would apply to the following information on all immigration violators: the alien's name; the alien's address or place of residence; physical description of the alien; the date, time, and location of the encounter with the alien; reason for stopping, detaining, apprehending, or arresting the alien; if applicable, the alien's driver's license number and the State of issuance of such license. None of this goes to protecting us against terrorism; if applicable, this type or any other identification document issued to the alien, any designation number contained on that identification document, and the issuing entity for the identification document; if applicable, the license plate number, make and model of any automobile registered to or driven by the alien; a photo of the alien, if available or readily obtainable; the alien's fingerprints, if available or readily obtainable.
I do not want to statewant State and local police forces to enforce civil immigration law. The immigration law, Mr. Chairman, is extremely complicated. Federal judges have compared it to the Internal Revenue Code in complexity. Maybe we as a Committee will work to ensure that the immigration laws are effective but maybe that they're more simplified.
Local law enforcement officials do not have the training and expertise that is necessary to determine whether a person who appears to be from another country is an alien who is in the United States unlawfully. I think we do better to ensure more immigration-trained personnel that would assist in their work in local communities. Community-based policing is one of the most powerful law enforcement tools available. By developing strong ties with local communities, police departments are able to obtain valuable information that helps them fight crime.
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In fact, the recent terrible incident with smuggling of illegal aliens in Texas was aided by the willingness of those individuals to share with police persons and Federal authorities who they thought would be helpful to them, and that relationship helped solve some of theto bring to justice some of those who perpetrated this heinous crime.
The development of community-based policing in immigrant communities is extremely important, and I believe that the CLEAR Act would put a damper, but it would set this whole communications relationship afire. In some cities, criminals have exploited the fear of immigrant communities and have utilized them and violated them and caused them not to go to law enforcement officials when they should.
For instance, in Durham, North Carolina, thieves told their victims in a community of migrant workers that if they called the police, they would be deported. And local police have found that fear of being deported prevents many immigrants from reporting crimes, even in the face of grave danger.
In 1998, Eleanor Gonzalez, an immigrant in New Jersey, was found murdered in the basement of her apartment. Friends of Ms. Gonzalez said that the suspected murderer, her former boyfriend, threatened to report her to the INS if she did not do what she was told.
So, finally, Mr. Chairman, might I say that this is an important hearing. I do not deny that. But, clearly, we must think reasonably about this. And as I read the long list of requirements of one lonely police officer with a multitude of responsibilities, a line officer on the front lines that has to go out every day and do his duty and then come back and just be burdened down with police work or paperwork that immigration authorities should be doing is outrageous. How are we going to pay for this? is the question. Why don't we work with the Department of Homeland Security and make sure that we have the kind of well-trained, well-funded, multiplicit individuals who can help us in the local areas, multi-talented, multi-faceted, but certainly the CLEAR Act is too much of a burden, a burden on those who work every day to protect us in our communities.
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I yield back.
Mr. HOSTETTLER. I thank the gentlelady for her statement.
Do any other Members of the Subcommittee have an opening statement? The Chair recognizes the gentleman from Arizona, Mr. Flake, for 5 minutes.
Mr. FLAKE. Mr. Chairman, I just want to ask unanimous consent to insert into the record a letter from Americans for Tax Reform, signed by Mr. Grover Norquist, also signed by the Honorable Bob Barr, former Member of Congress, whom we all know here, and David Keene, the president of the American Conservative Union, in opposition to the bill.
Mr. HOSTETTLER. Without objection.
Mr. FLAKE. Thank you.
[The letter follows in the Appendix]
Mr. HOSTETTLER. Does the gentleman yield back his time?
Mr. FLAKE. Yes, I do.
Mr. HOSTETTLER. The Chair now recognizes the gentlelady from California, Ms. Sánchez, for 5 minutes.
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Ms. SÁNCHEZ. Thank you, Chairman Hostettler and Ranking Member Jackson Lee, for convening this important legislative hearing today to hear testimony on H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal Act of 2003, commonly known as CLEAR.
I believe that the CLEAR Act is perhaps one of the most dangerous and potentially damaging bills that this Subcommittee has considered. The CLEAR Act is detrimental to our police departments, the safety of our immigrants and nonimmigrant communities, and to our national security.
The CLEAR Act burdens State law enforcement agencies and budgets because it puts a substantial burden on the State and local law enforcement agencies, State and local budgets, and taxpayers as well. The CLEAR Act will require State and local law enforcement agents to be police officers, first responders, and now immigration agents. America's State and local law enforcement agencies have their hands full fighting crimes and keeping our streets safe.
Since the terrorist attacks of September 11th, State and local law enforcement agents have been given added responsibilities of being first responders, our first line of defense against a terrorist attack. The CLEAR Act adds to these substantial burdens the responsibility of enforcing Federal civil immigration laws, not criminal immigration laws. This is not an easy task. To properly enforce Federal immigration laws, police officers will have to be knowledgeable about subjects like the H1-B visa program, asylum, and temporary protected status. It takes Federal immigration agents 17 weeks of training to learn the basics of these subjects, not to mention the time it takes to understand the thousands of nuances of Federal immigration law.
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The CLEAR Act will also make it much more difficult for State and local law enforcement agents to protect the communities that they try to serve. Turning police officers into immigration agents will destroy trust, cause many immigrants, whether they are here legally or illegally, to avoid contact with law enforcement agents because of the fear factor, and deter immigrants from helping with criminal investigation. The fear of being imprisoned or deported will cause victims, witnesses, or concerned citizens of immigrant communities from contacting police officers within information about crimes. This fear may prove to be a slippery slope and result in immigrants' not informing fire departments and emergency rescue personnel of emergencies.
And I have two letters that I'd like to submit with unanimous consent into the record from the California Police Chiefs Association and the Federal Hispanic Law Enforcement Officers Association in opposition to this bill. They are folks on the front lines that see that establishing this type of fear in communities is going to actually hamper their ability to protect and serve.
Mr. HOSTETTLER. Without objection.
[The letter follows in the Appendix]
Ms. SÁNCHEZ. One of the most troubling aspects of the CLEAR Act is that it doesn't require any police training of immigration law whatsoever. While it gives the officers the added responsibility for enforcing Federal immigration laws, it doesn't do anything to ensure that officers will be adequately trained to enforce those laws.
Page 22 PREV PAGE TOP OF DOC Under Sectio 109(a) of the CLEAR Act, within 180 days of enactment the Attorney General or the Secretary of the Department of Homeland Security are required to develop a training manual to teach State and local law enforcement personnel about how to enforce Federal civil immigration law. However, the training is not mandatory. Under section 109(d) of the CLEAR Act, the clarification provision, States and localities are not required to take any immigration training courses as a prerequisite to enforcing immigration laws.
Specifically, section 109(d) states, ''Nothing in this act or any other provision of law shall be construed as making any immigration-related training a requirement for or prerequisite to any State or local law enforcement officer to enforce Federal immigration laws in the normal course of carrying out their law enforcement duties.''
As a further obstacle to training State and local police officers on immigration law, section 109(b)(1) of the CLEAR Act allows the Attorney General or the Secretary of DHS to charge States and localities a fee of up to 50 percent of the total cost to acquire the training manuals without actually requiring the training itself.
I have extended remarks which I would like to submit to the record, but I just want to make one final point, and that is that the CLEAR Act, which purports to further national security interests, will actually have the opposite effect if implemented because police officers will now be burdened with trying to enforce civil immigration laws such as overstayed student visas, as an example, or a student who may have temporarily overstayed before re-enrolling, or a student who may have dropped to part-time status but has an extension in the works and under consideration, instead of going after the criminal aliens, which all of us think law enforcement's time is well spent doing.
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So with that, I will yield the balance of my time and submit my full remarks for the record.
[The prepared statement of Ms. Sánchez follows in the Appendix]
Mr. HOSTETTLER. I thank the gentlelady.
The Chair now recognizes the gentleman from Iowa, Mr. King, for 5 minutes.
Mr. KING. Thank you, Mr. Chairman. I appreciate the opportunity to be recognized, and I would ask unanimous consent to introduce some remarks into the record, but also make some very brief comments with regard to that. As I listen to the opening statements here before this hearing, a few things come to mind.
One is, according to INS' records, there were at least 98 American citizens who were murdered by those who had been adjudicated as illegal aliens and then released into society. That's between 1994 and 1998, if I remember those numbers right1999. And I think those numbers are significantly larger. We're in the process of compiling data, not just from our Federal penitentiaries but also from the State penitentiaries. It's very complicated. That number does look to be substantially larger.
As we are seated here today and we watch the news across the country, there is an effort across the Nation calledand I think inaccurately labeled a Freedom Ride, where there are buses traveling through our major cities in America advocating for fast-track citizenship for illegal aliens. And, you know, as I listen to the arguments that are made here, there are those also who support that as a legitimate means to adapt the law to the person who has broken it rather than enforce the law as it's intended by Congress.
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It's our responsibility to enforce the law or amend the law, and I believe Mr. Norwood has brought an important piece of legislation here before us. I am a cosponsor of this legislation. I enthusiastically support it. I was raised in a law enforcement family, and it is absolutely essential that we have cooperation at all levels of law enforcement in this country, from Federal down through our State, down to our local law enforcement officers. They have to know on what ground they stand, and any city that passes an ordinance that precludes their employees from enforcing Federal law in a sense is writing their own immigration law. That's the responsibility of Congress.
Thank you, Mr. Chairman. I yield back.
[The prepared statement of Mr. King follows in the Appendix]
Mr. HOSTETTLER. The gentleman yields back the balance of his time. The Chair now recognizes the gentlelady from California, Ms. Lofgren, for 5 minutes for an opening statement.
Ms. LOFGREN. Thank you, Mr. Chairman. I will not use the entire 5 minutes, but I will say that I believe that the so-called CLEAR Act would be a mistake for our country and would set back the cause of law enforcement significantly.
When the police chiefs of California send a letter to me and the delegation as strong as a letter they've sent arguing against a piece of legislation, I think it's important to sit up and take notice. And, in addition to the points they've made relative to the enforcement of the criminal law, I also believe that the issues in their minds relative to forcing local police to cover the costs to deal with noncriminal aliens is something that we need to address in this Congress.
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As you know, California has the highest-gap funding levels andbut we still shoulder most of the costs in State government and in local government. And this will just aggravate that situation. So, in addition to the letter from the Police Chiefs Association, I will note that the California Democratic delegation met just last week with the sheriff of L.A. County, with the sheriff of Orange County, with the chief of police of the city of Los Angeles, and all three of them urged us not to do this. And these are not exactly, you know, liberal guys. I mean, they think it's a mistake, and I think we ought to listen to them.
In addition to the letter from the police chiefs, I would like to submitask unanimous consent to submit for the record a letter from the chief of police of the city of Newark, which is just outside my district in California, as well as a letter from the Boston police, all in opposition to the legislation, as well as a letter just received and signed by, I think, something like three or four pages from the California Legislature outlining their concern and disagreement with the act.
[The letters follow in the Appendix]
Ms. LOFGREN. I think that it's good to have hearings sometimes on controversial issues such as this, and we can listen to the experts. Certainly the police chiefs know a lot more about law enforcement than any one of us.
So I yield back the balance of my time.
Mr. HOSTETTLER. The Chair now recognizes the gentleman from California, Mr. Berman, for 5 minutes for an opening statement. Oh, sorry. The Chair now recognizes the gentlelady from Pennsylvania, Ms. Hart, for 5 minutes for an opening statement.
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Ms. HART. Thank you, Mr. Chairman. I have a larger opening statement to submit for the record, but I simply want to state that I believe we're hearing some interesting concerns about the legislation, and maybe some of it's a misunderstanding about the legislation. And I'm pleased that we have the prime sponsor, Mr. Norwood, here as well as Mr. Deal. And I'm also an original cosponsor of the bill.
One of the major complaints that we heard about domestic security after September 11th was the lack of coordination between Federal agencies and between Federal and State officials. Unfortunately, these problems haven't been entirely solved, especially between Federal immigration officials and State and local law enforcement. That is the purpose of the CLEAR Act.
Now, the problem is very obvious to a lot of us who've actually experienced issues in our districts, those who, like Mr. King referred to, had terrible crimes committed where illegal immigrants were actually released from custody, only to commit those crimeswhich, I will add, further complicated the job of local law enforcement and that could have been avoided completely if that law enforcement could have dealt with the issue right up front.
That's why I'm happy to join as an original sponsor of this bill. I look forward to the testimony. I don't' want to belabor the opening statements any longer, but I ask for unanimous consent to submit my opening statement, the complete opening statement, for the record.
Mr. HOSTETTLER. Without objection.
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[The prepared statement of Ms. Hart follows in the Appendix]
Ms. HART. I yield back.
Mr. HOSTETTLER. The Chair now recognizes the gentleman from California, Mr, Berman, for 5 minutes for an opening statement.
Mr. BERMAN. Well, thank you very much, Mr. Chairman, and I thank you for calling this hearing because I think it's important to create a structure for the discussion of this important issue.
I don't want to repeat, even though I very strongly agree with the arguments of my colleagues, Mr. Flake and Ms. Jackson Lee and Ms. Sánchez and Lofgren, on why I have real concerns about this legislation.
I would like to put into the record two letters. One is a letter from the police department of Lenexa, Kansas, indicating just what the passage of this legislation would do to the operations of that police department and that town in the State of Kansas.
Mr. HOSTETTLER. Without objection
Mr. BERMAN. Not California, not Berkeley, not Boston. Kansas.
And also from a battered women's and children's nonprofit, pointing out that immediately upon the passagealso located in Kansas, upon passage of this kind of legislation, they know that immigrant women and children who've been subject to abusive treatment, the kind of people that this shelter and program seek to take care of, will no longer come or report to the local authorities these incidents and get the treatment, that this will work against the victims of crime and mistreatment because of what they feel will happen should something like the CLEAR Act become law. If I could put both of those in the record, I would appreciate it, Mr. Chairman.
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Mr. HOSTETTLER. Without objection.
[The letters follow in the Appendix]
Mr. BERMAN. And then, just a general comment. The present situationI agree with many of the speakers who disagree with me on this bill. The present situation is intolerable. We have millions of people in this country out of status, using false identifiers. Obviously the whole premise of the '86 bill on the issue of sanctions did not apply. We're trying to do a number of things to deter this from continuing to happen, spending a great deal of resources to make our borders more under our control, to implement entry-exit visa systems to try and deal with the potentials for overstays.
But it seems to me at a very fundamental level we have three choices: we let this intolerable situation continue, with all the exploitation and problems that exist from it; we attempt to address it, as many thoughtful people on both sides of the aisle have, our colleague Mr. Flake has put together a process for doing this. Many others in both the House and the Senate have. And try to come to grips with not only the problem of our borders, but the issue of need for legal workers in the future through the utilization of a safety valve of guest worker programs, and the situation of the millions of people who are in this country in an undocumented status whom we have no track of, we have no true identification of, and in the context of both humanitarian reasons and economic reasons and homeland security reasons, we need to address. Or we can create a massive Federal effort to go out and find and deport these 7 to 9 million people from this country. I don't believe the American people would stand for what would be required to do that, and well they shouldn't. But what the CLEAR Act does, to our way of thinking, is it tries to take the third approach but on the cheap, by imposing on local and State law enforcements, without adequate funding, the obligations to do what, if Congress really wanted to be done, they should take on themselves through appropriations and a massive expansion of a domestic force to find these people, and with all of the consequences that that would mean, and instead seek to just transfer the duties without the training, without the funding, and at great costs to the missions of our local police agencies around the country.
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So, on balance, I think that this proposal is a mistake. If we're going to take that approach, let's do it straightforwardly and honestly. Let's debate that, not seek to transfer the burdens to somebody from a Government that is supposed to be responsible for the passage, the implementation, and the enforcement of its immigration laws.
Thank you, Mr. Chairman.
Mr. HOSTETTLER. The gentleman yields back the balance of his time.
Under unanimous consent, the Chair, along with the Subcommittee, welcomes the gentlemen from Georgia, our colleagues Mr. Deal and Mr. Norwood. I'd like to point out that Mr. Norwood is the sponsor of the CLEAR Act, the subject of today's hearing, and the gentlemen will be open later in the hearing to ask questions of our witnesses and engage in this discussion.
I'd like to now turn to our witnessesthey're herewho have been very patient. We appreciate that.
John Morganelli was elected district attorney of Northampton County, Pennsylvania, in 1991, a position to which he was re-elected, unopposed, in 1995, 1999, and 2003. He was also a Democratic candidate for Pennsylvania Attorney General in 2002.
In 2002, Mr. Morganelli was named president of the Pennsylvania District Attorneys Institute. In addition, he served as president of Pennsylvania District Attorneys Association from 1999 to 2000 and has been a member of the Executive Board since 1995.
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In 1996 to 1997, he was appointed special deputy attorney general by Attorney General Tom Corbett, investigating matters in Lackawanna and Luzerne counties. He has served as assistant public defender in Northampton County and as an independent special counsel investigating alleged police misconduct in Moore Township, Pennsylvania.
Mr. Morganelli earned his juris doctor in May 1980 from Villanova School of Law, and he was a summa cum laude graduate of Moravian College, Bethlehem, Pennsylvania, with a Bachelor of Arts in political science. Welcome, Mr. Morganelli.
Mr. MORGANELLI. Good afternoon.
Mr. HOSTETTLER. Professor Kris Kobach is a professor of law and Daniel L. Brenner Scholar at University of Missouri at Kansas City LawSchool of Law, where he teaches and researches in constitutional law, American legal history, legislation and legislative drafting. From 1995 to 1996, Mr. Kobach was a judicial clerk to Judge Deanell Tacha of the Tenth Circuit U.S. Court of Appeals. Following that clerkship, he was an associate professor at UMKC Law School from 1996 to 2000, a position that he left in 2001 to become a White House fellow.
After his fellowship from 2002 to 2003, Mr. Kobach was counsel to Attorney General John Ashcroft. In this position, he served as the Attorney General's chief legal and policy adviser on immigration law and border security. He is a summa cum laude graduate of Harvard University, with a B.A. in Government. After graduating first in his class from the government department at Harvard, Mr. Kobach was a Marshall Scholar at Oxford University where he received a master's and a doctorate in politics.
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He returned to the United States and received his juris doctor from Yale Law School in 1995. Mr. Kobach is the author of numerous books and scholarly publications. Welcome, Professor.
Jim Edwards is an adjunct fellow with the Hudson Institute and a principal and co-founder of Olive Edwards Public Affairs, where he focuses on health care, homeland security, and other domestic policy issues. He formerly served as assistant vice president of communications at the Health Care Leadership Council. Before entering the private sector, Dr. Edwards was legislative director to U.S. Representative Ed Bryant, where he handles the Congressman's Judiciary Committee assignment. He began his congressional career on the staff of U.S. Senator Strom Thurmond. Dr. Edwards earned his doctorate at the University of Tennessee and his bachelor's and master's degree at the University of Georgia. He was also selected by the Claremont Institute for its prestigious Lincoln Fellows in Constitutional Government class in 1998.
He co-authored ''The Constitutional Politics of Immigration Reform,'' which was nominated for the Hardeman Prize. His writing has appeared in the New York Times, Christian Science Monitor, Investor's Business Daily, and American Outlook. Welcome, Doctor.
Gordon Quan is the Mayor Pro Tem of Houston, Texas. He chairs the Houston City Council's Housing Initiatives, Ethics, and Council Governance Committees and also serves as a member of several other committees. He has been recognized for his work on Houston's City Council, having been the recipient of the Vision in America Award in 2001 by the International Channel for his work in immigrants' rights and having been selected Council Member of the Year for 2002 by the Houston Police Officers Union.
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Mr. Quan is also an immigration attorney at the firm of Quan, Burdette & Perez. He earned his Bachelor of Arts degree in History and Government at the University of Texas at Austin and his master's degree in education from the University of Houston, followed by a law degree from South Texas College of Law. Welcome, Mayor.
Mr. QUAN. Thank you.
Mr. HOSTETTLER. Gentlemen, each of you will have 5 minutes. Without objection, your full opening statement will be available for the record, and if you could summarize and keep it within the 5 minutes, we would very much appreciate it.
STATEMENT OF JOHN M. MORGANELLI, DISTRICT ATTORNEY, NORTHAMPTON COUNTY, PENNSYLVANIA
Mr. MORGANELLI. Good afternoon. Thank you very much for inviting me. As was mentioned, my name is John Morganelli. I'm the elected district attorney in Northampton County, Pennsylvania, where I have served as district attorney for 12 years, and I am a past president of the statewide association of prosecutors.
Every twotwice a year in Northampton County, we have a naturalization service where new citizens of the United States are admitted to citizenship. It's a ceremony that occurs all across courthouses around this great country, and I go to it. And it's a very moving ceremony, people who came to the United States legally, have followed the rules, who did what was required to become U.S. citizens, and now enjoy what our country has to offer them.
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I have no doubt when I watch them carrying American flags and swearing to the oath of naturalization and citizenship that they, like many who came before them and many that will come after them, will be productive citizens, contributing to the greatness of America.
Unfortunately, there are also those who come to America illegally. They come not with an intent to commit to the American way, but, rather, to evade the law, commit crime, and impact negatively on our country. In the last 10 years, there has been a staggering increase in the number of illegal aliens residing not only in the United States but in my home State of Pennsylvania. INS, now ICE, estimated that the illegal population of Pennsylvania in 1992 to be about 27,000. In 1996, that number jumped to 37jumped 37 percent to approximately 37,000. The 2000 Census suggests that the number of illegal aliens in Pennsylvania is now somewhere between 100,000 and 200,000. As all of you know, nationwide the estimate is between 9 and 13 million.
Despite the voices of those who believe that the influx of these 9 to 13 million illegal aliens is a positive thing, the fact of the matter is is that illegal immigration is having an extremely negative impact upon America at many levels. Unfortunately, many, if not all, of illegal aliens who are here are engaged in criminal activity. Identity theft, use of fraudulent Social Security numbers and green cards, tax evasion, driving without licenses represent some of the crimes that are engaged in by most of the illegal aliens on a daily basis merely to maintain and hide their illegal status. In addition, violent crime and drug distribution and possession is also prevalent. Over 25 percent of today's Federal prison population are illegal aliens. In some areas of the country, 12 percent of felonies, 25 percent of burglaries, 34 percent of thefts are committed by illegal aliens. The numerous crimes such as identity theft and fraud, use of false identification, is causing havoc with recordkeeping systems, including but not limited to Social Security, income tax, and other compilation of data that we routinely rely upon for accuracy and identity verification.
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Just about every single day, municipal and State police come in contact with illegal aliens routinely through traffic stops and complaints by citizens. When police encounter these individuals, they find most of the time that they are utilizing fraudulent documents, false names, and other people's identities. Identification of these individuals is impossible and, quite frankly, many of the illegal aliens committing crimes here in the United States have criminal records from their country of origin, which cannot be ascertained because of their continuing use of false identities. Clearly, in addition to being a crime issue, the growing illegal alien population is also a national security issue, as was stated recently by the FBI.
What we see is a number of problems. For example, we know from comments made by retired Deputy Chief of Border Patrol in Blaine, Washington, Eugene Davis, who said recently that there was no effort to locate 95 percent of aliens apprehended in his region over the past 10 years and released pending deportation hearings. According to Davis, these illegal aliens have simply been allowed to disappear in the United States. No one knows whether a number of these missing persons are trained terrorists who will emerge later to perpetrate acts of terrorism inside our country.
And then there is the direct cost to taxpayers. In Pennsylvania, the financial cost to the taxpayers is staggering. Pennsylvania requested from the Federal Government in fiscal year '99 for about 196,000 days of incarceration money from you to help pay for the costs of detaining illegal aliens in State and local jails. The cost to Pennsylvania taxpayers was $13,350,000. Under the SCAAP program, we received $5 million, leaving $8 million of uncompensated cost to be footed by Pennsylvania taxpayers. In fiscal year 2000, our State received $4.3 million.
Page 35 PREV PAGE TOP OF DOC Clearly, illegal immigration in the United States is a negative and not a plus and must be addressed for a variety of reasons. But the solution lies in empowering local and State police with the authority to arrest, detain illegal aliens they come in contact with. Clearly, the CLEAR Act, which you are considering, would expressly authorize local and State law enforcement to investigate, apprehend, and detain aliens in the United States. The CLEAR Act provides incentives for those municipalities and States who, for whatever reasons, want to recognize the seriousness of this problem and also penalties for those who do not recognize the seriousness of this growing problem.
In Pennsylvania, not only in the Lehigh Valley where I serve as DA, law enforcement has taken an interest in identifying and removing illegal criminal aliens. There have been efforts in the Scranton, Wilkes-Barre area by local police and in western Pennsylvania where Congressman Hart serves.
But, unfortunately, local and State law enforcement at the present time have to rely on Federal officials. In the past, the Federal Government has shown very little interest in this issue. For example, on a number of occasions, my office, as well as local and State police, have come in contact with illegal aliens who admit their illegal status, and most of them, by the way, admit that they're illegally in the country as soon as they're inquired by law enforcement. When Federal agencies such as ICE were contacted, we were often told that as long as these criminal aliens were not committing any additional crimes, they should just be released and let go. I have also been told in the past that INS ''discourages this type of investigation.'' In other words, it's not enough for them to be aware of the fact that there are thousands of illegal aliens in our communities; we are told they must essentially be doing some other type of crimeand by that mostly is felony crimes rather than misdemeanorsbefore they will get interested in the matter.
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When arrests are made by local and State police on State charges, like identity theft, fraudulent documents, we then get word later that these individuals have been released by an immigration judge and told that they should leave the country in 6 months. Within a short period of time, we see them back in my jurisdiction, utilizing another false identity and another Social Security card.
In my view, the thinking has to change in Washington, and the CLEAR Act is an indicationwould be an indication from the Congress that the thinking has, in fact, changed. The fact of the matter is that the cost to society from illegal aliens is so severe, we can no longer leave this exclusively to the Federal Government. Local prosecutors, local and State police must be empowered and aggressive with respect to the issue.
Some may argue that most local police departments don't want to enforce immigration violations and have resisted the idea of using their officers to track down illegal immigrants, and that may be the case in some jurisdictions. But that is not the case to deprive the law enforcement community across this great country in those areas where we want to address the problem.
I believe that now in the wake of September 11th, a growing percent of law enforcement wants to be involved because they equate this illegal immigration issue with protecting national security, and they are involved. We are involved. You have seen pilot programs in the State of Florida that empowers local law enforcement and have worked out agreements with the Justice Department.
Page 37 PREV PAGE TOP OF DOC In summary, let me state the following: As a State prosecutor, I believe this legislation is necessary. However, I do caution that the ultimate success of this goal will be based on the political will of both political parties here in Washington. For some reason, it appears to me just as a normal citizen that both political parties are really not interested in addressing this issue in any meaningful way. I was excited to hear that this legislation was being proposed because it may be an indication that we are getting serious to address this growing problem in our country.
Obviously, the CLEAR Act is not a panacea and perhaps it needs to be tweaked along the suggestions made by some of the Members of this Committee. But it is the only way we are going to address the problem because Federal officials do not come in contact with illegal aliens on a daily basis. It's the local and State police that do, and they are the people that have to have the power to act or the problem will continue to get worse.
Lastly, let me say that also some attention must be given to immigration judges. My experience is that immigration judges routinely release those who have been arrested by local law enforcement, convicted of an identity crime, taken out by INS on a detainer to York, Pennsylvania, where our holding area is, and they release them routinely back into the population and tell them that they should be out of the country in 60 days or 6 months. And you know that no one's leaving. They disappear into American society, sometimes back to my own jurisdiction, adopt a new false name, new false documents, and resume their illegal status in our country.
The efforts to clean up this mess can only be done legislatively by way of the CLEAR Act, which recognizes that it has to be involving local law enforcement. It must empower us or the problem will grow.
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I'd like to thank all of you, the Chairman of the Committee particularly, for inviting me to offer these comments today. Thank you very much.
[The prepared statement of Mr. Morganelli follows:]
PREPARED STATEMENT OF JOHN M. MORGANELLI
Good afternoon. My name is John M. Morganelli and I am the elected District Attorney in Northampton County, Pennsylvania. I have served as District Attorney for twelve (12) years and I am a past President of the Pennsylvania District Attorneys Association, a statewide Association of prosecutors in Pennsylvania.
On June 25, 2003 there occurred in Northampton County a ceremony that is often repeated in courthouses throughout the United States. A number of individuals from all parts of the world participated in a naturalization ceremony that resulted in new citizens of the United States of America. I had the pleasure of meeting some of these individuals who were beaming with pride, carrying American flags as they swore the oath of naturalization and U.S. citizenship. These people immigrated to the United States legally, followed the rules, did what was required to become U.S. citizens and now enjoy what America has to offer them. I have no doubt that they, like many before them and many who will come after them, will be productive citizens contributing to the greatness of America.
Unfortunately, there are also those who come to America illegally. They come not with an intent to commit to the American way, but rather to evade the law, commit crime and impact negatively on our country. In the last ten (10) years, there has been a staggering increase in the number of illegal aliens residing in Pennsylvania. INS, now ICE, estimated that the illegal alien population of Pennsylvania in 1992 to be about 27,000. In 1996 that number jumped 37% to approximately 37,000. The 2000 census suggests that the number of illegal aliens in Pennsylvania is somewhere between 100,000 and 200,000. Nationwide, the estimates of illegal aliens living in the United States is somewhere between 9 and 13 million.
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Despite the voices of those who naively believe that the influx of this estimated 9 to 13 million illegal aliens into the United States is a positive thing, the fact of the matter is that illegal immigration is having an extremely negative impact upon America at many levels. Unfortunately, the majority of illegal aliens who are here are engaged in criminal activity. Identity theft, use of fraudulent social security numbers and green cards, tax evasion, driving without licenses represent some of the crimes that are engaged in by the majority of illegal aliens on a daily basis merely to maintain and hide their illegal status. In addition, violent crime and drug distribution and possession is also prevalent among illegal aliens. Over 25% of today's federal prison population are illegal aliens. In some areas of the country, 12% of felonies, 25% of burglaries and 34% of thefts are committed by illegal aliens. The numerous crimes being committed by illegal aliens such as identity theft, fraud and use of false identification is causing havoc with record-keeping systems including but not limited to Social Security, income tax and other compilation of data that we have routinely relied upon for accuracy and identity verification. Just about every day, municipal and state police come in contact with illegal aliens who are utilizing fraudulent documents, false names and other people's identities. Identification of these individuals is impossible and, quite frankly, many of the illegal aliens committing crimes here in the United States have criminal records from their country of origin which cannot be ascertained because of their continuous use of false identities. Clearly, in addition to being a crime issue, the growing population of illegal aliens in the United States is without a doubt the single most important national security issue facing us. As an example of that, in May 2002 federal agents arrested 2 Egyptian nationals for trying to smuggle illegal Middle Eastern immigrants into New Jersey by way of Mexico. For a fee of $8,000.00, court documents showed the suspected smuggling ring flew customers on tourist visas to Brazil, then sent them to Guadamala through Mexico and finally across the southwest border into the U.S. With regard to our northern border in Blaine, Washington, a retired Deputy Chief of Border Patrol Agent Eugene Davis stated recently that there has been no effort to locate 95% of aliens apprehended in his region over the past 10 years and released pending deportation hearings. According to Davis, these illegal aliens have simply been allowed to disappear into the United States. No one knows whether a number of these missing persons are trained terrorists who will emerge to perpetrate more acts of terrorism inside the United States.
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Then, there is the direct cost to taxpayers as a result of the criminal acts committed by illegal aliens. In Pennsylvania the financial cost to taxpayers is staggering. Pennsylvania requested compensation from the federal government in fiscal year 1999 for the incarceration expenses for about 196,676 days of detention for illegal aliens in state and local jails and prisons. The cost to Pennsylvania taxpayers amounted to $13,350,000.00. Under the ''State Criminal Alien Assistance Program'' (SCAAP), Pennsylvania received $5 million leaving $8 million of uncompensated cost to be footed by Pennsylvania taxpayers. In fiscal year 2000, Pennsylvania received $4.3 million. Payments to the states were lower overall so local taxpayers were faced to absorb a much larger share of the cost of criminal illegal alien incarceration. Clearly, illegal immigration into the United States is a negative and not a plus and must be addressed for a variety of the aforesaid reasons. But the solution lies in empowering local and state police with the authority to arrest, detain and deport illegal aliens. Clearly, the CLEAR Act, which you are considering today, would expressly authorize local and state law enforcement to investigate, apprehend, detain and remove aliens in the United States. The CLEAR Act provides economic incentives and penalties for those municipalities and states who for whatever reasons do not recognize the seriousness of this problem and fail or lack the desire to help with this growing problem. In Pennsylvania, not only in the Lehigh Valley where I serve as the District Attorney, law enforcement has taken an interest in identifying and removing illegal aliens. There have been efforts in the Scranton Wilkes-Barre area by local police and in western Pennsylvania to deal with this issue but, unfortunately, local and state law enforcement at the present time have to rely on federal officials. In the past, the federal government has not shown much interest in this issue. For example, on a number of occasions, my office as well as local and state police have come into contact with illegal aliens who have admitted their illegal status and entry into the United States. When federal agencies such as the INS now ICE were contacted, we were often told that as long as these criminal aliens were not committing additional crimes, they should just be let go. I have also been told that in the past INS discourages ''this type of investigation.'' In other words, it is not enough for them to be aware of the fact that there are thousands of illegal aliens living in our communities, we are told that they must essentially be committing some other type of crime before the federal government would get involved. When arrests are made by local police on state charges such as identity theft, etc. INS will often inform us that they are ''not interested'' in detaining and deporting these kinds of illegal immigrants. For some reason, the federal government continues to believe that immigration violations by themselves do not warrant much enforcement. In my view, this thinking must change and the CLEAR Act certainly is an indication from the Congress that the thinking has in fact changed. The fact of the matter is that the cost to society from the impact of illegal aliens is so severe, we can no longer afford not to act or leave this problem exclusively to the federal government. Local prosecutors, local and state police must be empowered, aggressive and diligent with respect to the presence of illegal aliens. Although some may argue that most local police departments do not want to enforce immigration violations and have resisted the idea of using their officers to track down illegal immigrants, reasoning that crime fighting is better served by building relationships of trust in immigrant communities, I believe that now in the wake of September 11, 2001 a growing percent of law enforcement agencies around the country are beginning to equate illegal immigration and immigration enforcement with protecting national security and they want to be involved. You have seen pilot programs in the state of Florida empowering local law enforcement to enforce immigration laws. Implementation of the provisions of the CLEAR Act would, perhaps, make unnecessary the memorandums of understandings that some jurisdictions are seeking with the Justice Department in order to obtain power for state and local police to enforce immigration laws.
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In summary, let me therefore state unequivocally that as a state prosecutor, I believe that this legislation is necessary. However, I caution you that the ultimate success of this goal will be based upon the political will of both political parties here in Washington. Quite frankly, I am not very optimistic. I believe that both the Republicans and the Democrats are to blame for the present lack of enthusiasm on the part of the government to enforce immigration laws. Business interests that often influence Republican Party politics clearly want cheap labor and often employ illegal aliens in menial jobs paid less than the minimum wage. On the other hand, the Democratic Party continuously at the national level panders to ethnic politics. Obviously, the CLEAR Act is not a panacea and we cannot overnight deal with the issue of the huge invasion of illegal aliens into America. And, it is also clear that even with an aggressive approach to enforcement and passage of the CLEAR Act, we continue to have the problem of hundreds of thousands of illegal aliens invading our country on a regular basis through our northern and southern borders. And lastly, there must also be attention to immigration judges who routinely, after local law enforcement has apprehended, arrested and prosecuted an illegal alien, often release these illegal aliens back out into the community on ROR or minimal bail with an order for them to deport. Of course, these illegal aliens again disappear into American society, adopt a new false identity, a new false name and relocate to some other community. Occasionally, we have seen the people that we have prosecuted come right back to my area resuming again their jobs, life under another name and another social security number. The effort to clean up this mess cannot only be done legislatively via the CLEAR Act, but must recognize the other areas related to immigration enforcement that also must be addressed. Nevertheless, the CLEAR Act is necessary because without an empowered municipal and local departments throughout the United States, the problem will continue to grow and get worse.
Page 42 PREV PAGE TOP OF DOC I would like to thank the Chairman of the Committee and members of the Committee for inviting me to offer these comments today.
Mr. HOSTETTLER. Thank you, Mr. Morganelli.
STATEMENT PROFESSOR KRIS W. KOBACH, ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF MISSOURI KANSAS CITY
Mr. KOBACH. Thank you, Mr. Chairman. In my testimony, I will do two things: first, I will briefly summarize the legal basis by which State and local police may make immigration arrests under current law; and then I will briefly review some of the more salient provisions of the CLEAR Act.
It's long been widely recognized that State and local police have the authority to make arrests for criminal violations of the INA, the Immigration and Nationality Act. But where some confusion has existed in recent years has been on the question of whether that same authority extends to civil violations of the act that render an alien deportable. That confusion was, to some extent, fostered by an erroneous 1996 OLC opinion of the Department of Justice. In 2002, OLC corrected this error, withdrew the relevant portion of the '96 opinion from its website, and produced a new opinion which analyzed the issue. Although the Attorney General did not publicize that opinion, the Attorney General did announce the conclusion thereof that arresting aliens who have violated either criminal provisions of the act or civil provisions that render the alien deportable is within the inherent authority of the States.
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That said, I will proceed now to offer my own analysis of this issue and offer some of my reasons why I believe this is the correct conclusion on this important question.
The source of this authority flows from the States' status as sovereign entities. It inheres in the ability of one sovereign to assist another sovereign in the enforcement of its laws. This is the same inherent authority that exists when a State police officer observes a criminal violating a Federal law and goes ahead and makes the arrest. It is thethere is no Federal statute that conveyed that authority or empowered the State police officer to do that. It is, rather, the inherent authority of one sovereign to assist the other sovereign in law enforcement. And there's abundant case on the point, abundant Supreme Court cases on that point: U.S. v. Di Re, Miller v. United States. And you can read my testimony if you are really interested in reading those quotes.
But the Ninth and Tenth Circuits have taken this general principle and applied it specifically to immigration law, and there, again, you have very clear law. The Tenth Circuit opined that, ''A State trooper has general investigatory authority to inquire into possible immigration violations.'' That's from U.S. v. Salinas-Calderon, and the same court applied preemption analysis to determine whether a Federal statutes ''limits or displaces the preexisting general authority of State or local police officers to investigate and make arrests for violations of Federal law, including immigration laws.'' That's U.S. v. Vasquez-Alvarez.
Well, the courts, concluding that the authority is an inherent one, have then turned to the next question of whether there has been any Federal preemption of this inherent authority, and here, again, the courts' conclusions are unequivocal. In the context of State arrests for violations of criminalof Federal law, there's a strong presumption against preemption, and it's useful to note this at the outset because essentially the States are helping the Federal Government enforce their own laws, and it is presumed generally that the Federal Government would like such cooperation.
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But the Congress in 1996 put to rest any further doubt on this question when Congress itself added section 287(g) of the Immigration and Nationality Act and stated that a formal agreement of the like we've seen in Florida is not actually necessary ''for any officer or employee of a State or political subdivision of a State otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.'' That's quoting from the act.
The case law supporting this is equally strong, the notion that there has been on preemption. The Tenth Circuit has issued several opinions on the subject, all very clearly on point. The Fifth Circuit has also rejected the notion that Congress has preempted the inherent arrest authority in Lynch v. Cannatella. The court considered 8 U.S.C. 1223 and concluded, ''No statute precludes other Federal, State, or local law enforcement agencies from taking other action to enforce this Nation's immigration laws.''
The legal analysis aside, now we'll get to the more interesting part, I suppose, and that is, some thoughts on the CLEAR Act.
I believe that the CLEAR Act is an important step that must be taken if we are serious in our efforts to improve voluntary cooperation between Federal, State, and local authorities and to maximize the effect of this cooperation. I do have, however, several suggestions about how the act might be improved, how the draft might be improved. One is that the current wording in section 101 says that law enforcement personnel of a State are ''authorized.'' I would urge the Committee to stay away from the use of the word ''authorized'' because that implies that this is a power being conveyed by Congress. And, of course, the power already exists. It flows from their inherent arrest authority. And the alternative phrasing can be found in my written testimony.
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Section 103, I think this is a particularly important provision of the act. It's estimated that the net cost of illegal immigration totals in excess of $40 billion a year, and the forfeiture of assets is a useful way for State governments, who suffer a large amount of that burden, for them to recover some of those costs.
I would also like to offer some suggestions for improving section 103. It would be useful to create a blanket criminal misdemeanor offense that applies to any alien who violates any provision of U.S. immigration law. That would eliminate any ambiguity that still persists out there among people who haven't heard my testimony today.
The second suggestion is thatanother phrasing change concerning those aliens whose visa is good for a period longer than their period of authorized stay in the United States. That's something that's quite common with B visas or tourist visas.
The sharing of information in section 104, also a very important provision of this act. I suggest that the Committee definitely keep this in there, then perhaps reword the section even more strongly to make it clear that this obligation is unmistakable and to accelerate the entry of names into NCIC, the National Criminal Information Center system.
I'd just like to point out just how critical this is with respect to the alien absconder program. Abscondersalien absconder problem. Absconders, as you know, are individuals who've already had their day in immigration court. They've already been, quote, deported. The problem is that if they aren't actually detained, more than 90 percent of people who are adjudicated deportable are never actually deported, and they abscond, become fugitives. There are now more than 400,000 absconders at large in American society. These aliens have had their day in court. They've disobeyed the final order of removal. In 2001, at the end of the year the Department of Justice and the INS launched the absconder initiative to start loading the names of these individuals into the NCIC system so that local police could pull them up in their squad car computers.
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The initiative has yielded many valuable arrests, but there is one problem, that is, that the entry of names into NCIC is occurring at an alarmingly slow rate. Indeed, we are seeing more absconders created, if you will, than we are seeing names entered. It's not keeping pace. And I think the CLEAR Act can help solve this problem by making it crystal clear that the Federal immigration authorities need notone of the barriers to rapid entry of names is they are currently trying to ascertain whether an alien actually received actual notice of his deportation order. And, of course, if the alien has left town or changed address without notifying officialswhich quite frequently happensthere won't be proof of actual notice. The CLEAR Act could clarify this, that this isn't something that the immigration authorities need to worry about in the loading of names. And certainly the legal authority exists to take that position.
Lastly, I would suggest that the Committee consider, as it looks under the hood, so to speak, tinkering with another part of this engine that is so important, and that is driver's licenses. As the Committee is no doubt aware, the issuance of driver's licenses to illegal aliens jeopardizes immigration law enforcement, general law enforcement, and national security. Driver's licenses allow people who are here in violation of immigration laws to operate with ease in American society and escape the scrutiny that might otherwise occur hadif they did not have those licenses, and you may also know that the driver's license is an effective passport on the Northern border. Any alien who can make a good case that he is a U.S. citizen and bluff his way across the border now has a platform for crossing that border with ease.
In addition, you have the opportunities for criminals that are opened up because States that allow illegal aliens to acquire these licenses necessarily have to reduce the threshold of documentation for the issuance of such a license. When that happens, it's moreit is more easily done for criminals or illegal aliens to obtain the licenses that back up a false identity. And that false identity can either be used as a cover for previous criminal acts or it can be used as a platform for future criminal acts. And, of course, as I'm sure many of the Committee Members know, it can also be a useful tool for terrorists. Eight of the hijackers of 9/11 used Virginia driver's licenses, undoubtedly, to board the planes on that fateful day. And I think the Committee should address possible ways of solving that problem, which might include making highway funds subject to appropriate issuance of driver's licenses.
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In summary, it is clear that there is substantial legal authority already for State and local police to make immigration arrests, but it's also clear that there's great potential to improve the situation. Much more can and should be done, and I believe the CLEAR Act would improve the situation substantially.
[The prepared statement of Mr. Kobach follows:]
PREPARED STATEMENT OF KRIS W. KOBACH
The terrorist attacks of September 11, 2001, underscored for all Americans the need to restore the rule of law in the immigration arena. Terrorists were able to enter the country undetected, overstay their visas with impunity, and move freely within the country without interference from local law enforcement officers. Each of these realities created a vulnerability that the hijackers of September 11 exploited.
Enforcing our nation's immigration laws is one of the most daunting challenges faced by the Federal Government. With more 810 million illegal aliens already present in the United States and fewer than 2000 interior enforcement agents at its disposal, the Bureau of Immigration and Customs Enforcement (BICE) has a Herculean task on its handsone that it simply cannot accomplish alone.
The assistance of state and local law enforcement agencies can mean the difference between success and failure in enforcing the immigration laws. The more than 650,000 police officers nationwide represent a massive force multiplier.
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I will briefly summarize the legal authority upon which state and local police may currently act in rendering such assistance and then review relevant provisions of the proposed CLEAR Act. I will not cover the provisions of Section 287(g) of the Immigration and Nationality Act (INA), since the scope of such delegated authority is evident on the face of the act. Rather, I will discuss the inherent authority that has been possessed and exercised by state and local police since the earliest days of federal immigration law.
It has long been widely recognized that state and local police possess the inherent authority to arrest aliens who have violated criminal provisions of the INA. Once the arrest is made, the police officer must contact federal immigration authorities and transfer the alien into their custody within a reasonable period of time. Bear in mind that the power to arrest, and take temporary custody of, an immigration law violator is a subset of the broader power to ''enforce.'' This is most salient distinction between inherent arrest authority and 287g authority to enforce-which includes arresting, investigating, preparing a case, and all of the other powers of the exercised by BICE agents.
Where some confusion has existed in recent years is on the question of whether the same authority extends to arresting aliens who have violated civil provisions of the INA that render an alien deportable. This confusion was, to some extent, fostered by an erroneous 1996 opinion of the Office of Legal Counsel (OLC) of the Department of Justice, the relevant part of which has since been withdrawn by OLC. However, the law on this question is quite clear: arresting aliens who have violated either criminal provisions of the INA or civil provisions that render an alien deportable ''is within the inherent authority of the states.''(see footnote 1) And such arrest authority has never been preempted by Congress.
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This conclusion has been confirmed by every court to squarely address the issue. Indeed, it is difficult to make a persuasive case to the contrary. That said, I will proceed to offer my opinion as to why this conclusion is correct. I offer this opinion purely in my private capacity as a law professor and not as a representative of the Bush Administration.
THE INHERENT ARREST AUTHORITY POSSESSED BY STATES
The preliminary question is whether the states have inherent power (subject to federal preemption) to make arrests for violation of federal law. That is, may state police, exercising state law authority only, make arrests for violation of federal law, or do they have power to make such arrests only insofar as they are exercising delegated federal executive power? The answer to this question is plainly the former.
The source of this authority flows from the states' status as sovereign entities. They are sovereign governments possessing all residual powers not abridged or superceded by the U.S. Constitution. The source of the state governments' power is entirely independent of the U.S. Constitution. See Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819). Moreover, the enumerated powers doctrine that constrains the powers of the federal government does not so constrain the powers of the states. Rather, the states possess what are known as ''police powers,'' which need not be specifically enumerated. Police powers are ''an exercise of the sovereign right of the government to protect the lives, health , morals, comfort, and general welfare of the people . . .'' Manigault v. Springs, 199 U.S. 473, 480 (1905). Essentially, states may take any action (consistent with their own constitutions and laws) unless there exists a prohibition in the U.S. Constitution or such action has been preempted by federal law.(see footnote 2)
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It is well established that the authority of state police to make arrests for violation of federal law is not limited to those situations in which they are exercising delegated federal power. Rather, such arrest authority inheres in the States' status as sovereign entities. It stems from the basic power of one sovereign to assist another sovereign. This is the same inherent authority that is exercised whenever a state law enforcement officer witnesses a federal crime being committed and makes an arrest. That officer is not acting pursuant to delegated federal power. Rather, he is exercising the inherent power of his state to assist another sovereign.
There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely; and the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, ''No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall.'' 332 U.S. 581, 591 (1948). The Court's conclusion presupposes that state officers possess the inherent authority to make warrantless arrests for federal offenses. The same assumption guided the Court in Miller v. United States. 357 U.S. 301, 305 (1958). As the Seventh Circuit has explained, ''[state] officers have implicit authority to make federal arrests.'' U.S. v. Janik, 723 F.2d 537, 548 (7th Cir. 1983). Accordingly, they may initiate an arrest on the basis of probable cause to think that an individual has committed a federal crime. Id.
Page 51 PREV PAGE TOP OF DOC The Ninth and Tenth Circuits have expressed this understanding in the immigration context specifically. In Gonzales v. City of Peoria, the Ninth Circuit opined that the ''general rule is that local police are not precluded from enforcing federal statutes,'' 722 F.2d 468, 474 (9th Cir. 1983). The Tenth Circuit has reviewed this question on several occasions, concluding squarely that a ''state trooper has general investigatory authority to inquire into possible immigration violations,'' United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984). As the Tenth Circuit has described it, there is a ''preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws,'' United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999). And again in 2001, the Tenth Circuit reiterated that ''state and local police officers [have] implicit authority within their respective jurisdictions 'to investigate and make arrests for violations of federal law, including immigration laws.''' United States v. Santana-Garcia, 264 F.3d 1188, 1194 (citing United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295). None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Rather, the inherent arrest authority extends generally to violations of federal immigration law.
THE ABSENCE OF CONGRESSIONAL PREEMPTION
Having established that this inherent state arrest authority exists, the only remaining question is whether such authority has been preempted by Congress. In conducting preemption analysis, courts must look for (1) express preemption by congressional statement, (2) field preemption where the federal regulatory scheme is so pervasive as to create the inference that Congress intended to leave no room for the states to supplement it, or (3) conflict preemption, where compliance with both state and federal law is impossible or state law prevents the accomplishment of congressional objectives. See Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (plurality opinion). In all three categories, there must exist manifest congressional intent for preemption to exist.
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Moreover, in the context of state arrests for violations of federal law, there is a particularly strong presumption against preemption. Normal preemption cases involve: (1) state legislation or regulation (2) that is at odds with federal purposes. However, state arrests for violations of federal law, involve: (1) state executive action (2) that is intended to assist the federal government in the enforcement of federal law. The critical starting presumption must be that the federal government did not intend to deny itself any assistance that the states might offer. This presumption was explained in 1928 by Judge Learned Hand, who stated that ''it would be unreasonable to suppose that [the federal government's] purpose was to deny itself any help that the states may allow.'' Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).
In 1996, Congress expressly put to rest any suspicion that it did not welcome state and local assistance in making immigration arrests. Congress added section 287(g) to the INA, providing for the establishment of written agreements with state law enforcement agencies to convey federal immigration enforcement functions to such agencies. In doing so, Congress reiterated its understanding that states and localities may make immigration arrests regardless of whether a 287(g) agreement exists. Congress stated that a formal agreement is not necessary for ''any officer or employee of a State or political subdivision of a state . . . to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States,'' or ''otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.'' 8 U.S.C. § 1357(g)(10).
Page 53 PREV PAGE TOP OF DOC Consequently, it is hardly surprising that no appellate court has expressly ruled that states are preempted from arresting aliens for civil violations of the INA. The only case that even comes close is the 1983 opinion of the Ninth Circuit in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983). In Gonzales, the Ninth Circuit held that local police officers have the authority to arrest an alien for a violation of the criminal provisions of the INA if such an arrest is authorized under state law. In that instance, a group of persons of Mexican descent challenged a policy of the City of Peoria, Arizona, that instructed local police to arrest and detain aliens suspected of illegally entering the United States in violation of the criminal prohibitions of section 1325 of title 8. See 722 F.2d at 47273. Observing that local police generally are not precluded from enforcing federal statutes and that concurrent enforcement authority is authorized where local enforcement would not impair federal regulatory interests, the court engaged in a preemption analysis to determine whether Congress had precluded local enforcement of this criminal provision of the INA. The court concluded that no such preemption had occurred. See id. at 475. In passing, the Ninth Circuit ''assume[d] that the civil provisions of the [INA] . . . constitute . . . a pervasive regulatory scheme'' that suggested a congressional intent to preempt local enforcement, id. at 47475. However, this possibility of field preemption was merely an assumption, asserted without any analysis, and made in dictum-entirely outside of the holding of the case (which concerned a criminal offense). It does not constitute binding precedent. And even if the Ninth Circuit had squarely reached this conclusion in 1983, such a holding would have been fatally undermined by the court's failure to apply the strong presumption against preemption discussed above. In addition, the subsequent actions of Congress in 1996 made such a holding unsustainable.
In contrast, the case law supporting the conclusion that Congress has not preempted state arrests of aliens for violations of civil provisions of the INA is solid and on point. The Tenth Circuit has issued several opinions on the subject, all pointing to the conclusion that Congress has never sought to preempt the states' inherent authority to make immigration arrests for both criminal and civil violations of the INA. Its 1984 ruling in the case of United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984), confirmed the inherent arrest authority possessed by the states. The defendant in that case was the driver of a pickup who had been arrested for the criminal violation of transporting illegal aliens. He had been stopped by a state trooper for driving erratically. The driver and his wife were in the cab; and six passengers, none of whom spoke English, were in the back of the pickup. The defendant claimed that a state trooper did not have the authority to detain the transported passengers while he questioned them about their immigration status. In rejecting this claim, the Tenth Circuit held that a ''state trooper has general investigatory authority to inquire into possible immigration violations.'' 728 F.2d at 1301 n.3. The court did not differentiate between criminal and civil violations. Indeed, because there is no indication in the opinion that there was any reason to believe that the alien passengers had committed any criminal violations, the court's statement appears to apply fully to civil as well as criminal violations.
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The Tenth Circuit's most salient case on the preemption question is U.S. v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In that case, an Oklahoma police officer arrested the defendant because he was an ''illegal alien.'' The officer did not know at the time whether the defendant had committed a civil or criminal violation of the INA. Id. at 1295. It was later discovered that the alien had illegally reentered the country after deportation, in violation of 8 U.S.C. § 1326, a criminal violation. When the government indicted the defendant, he moved to suppress his post-arrest statements, fingerprints, and identity, arguing that he was arrested in violation of 8 U.S.C. § 1252c. The defendant claimed that a local police officer could arrest an illegal alien only in accordance with the conditions set forth in section 1252c and that because his arrest was not carried out according that provision it was unauthorized. Section 1252c authorizes state and local police to make a warrantless arrest and to detain an illegal alien if (1) the arrest is permitted by state and local law, (2) the alien is illegally present in the United States, (3) the alien was previously convicted of a felony in the United States and subsequently was deported or left the country, and (4) prior to the arrest the police officer obtains appropriate confirmation of the alien's status from federal immigration authorities. 8 U.S.C. § 1252c.
The Tenth Circuit's conclusion was unequivocal: section 1252c ''does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws. Instead, section 1252c merely creates an additional vehicle for the enforcement of federal immigration law.'' Vasquez-Alvarez, 176 F.3d at 1295. The court rejected the alien's contention that all arrests not authorized by section 1252c are prohibited by it. The court reviewed the legislative history of section 1252c and analyzed that the comments of Representative Doolittle, who sponsored the floor amendment containing the text that would become section 1252c. The court concluded that the purpose of the amendment was to overcome a perceived federal limitation on this state arrest authority. However, neither Doolittle, nor the government, nor the defendant, nor the court itself had been to identify any such limitation. Id. at 129899.
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The interpretation of 1252c urged by the defendant would have grossly perverted the manifest intent of Congress, which was to encourage more, not less, state involvement in the enforcement of federal immigration law. Reading into the statute an implicit congressional intent to preempt existing state arrest authority would have been entirely inconsistent with this purpose. Moreover, such an interpretation would have been inconsistent with subsequent congressional actions. As the Tenth Circuit noted, ''in the months following the enactment of section 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws.'' Id. at 1300 (citing 8 U.S.C. §§ 1103(a)(9), (c), 1357(g)). Put succinctly, the ''legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers.'' Id. at 1299.
The Fifth Circuit has also rejected the notion that Congress has preempted the inherent arrest authority possessed by the states. In Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987), the court considered whether 8 U.S.C. §1223(a) defined the sole process for detaining alien stowaways, thereby preempting harbor police from detaining illegal aliens as occurred in that case. The Eighth Circuit's conclusion was broad and unequivocal: ''No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws.'' Id. at 1371.
Finally, on the subject of preemption, it must be noted that the distinction between arrests by state police for criminal violations of the INA and arrests by state police for civil violations of the INA is utterly unsustainable. Any claim of field preemption would have to establish that the civil provisions of the INA create a pervasive regulatory scheme indicating congressional intent to preempt, while the criminal provisions do not. No court has ever attempted to justify such a conclusion. The INA is not separated neatly into criminal and civil jurisdictions. Nor have the regulations promulgated pursuant to the INA or the executive agencies charged with its enforcement attempted such a separation. The structure of the INA, with its numerous overlapping civil and criminal provisions, simply cannot support such a distinction.
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THE CLEAR ACT
Passage of H.R. 2671 is an important and step that must be taken if the voluntary cooperation of state and local police in the enforcement of immigration laws is to be maximized. And such cooperation is necessary if the rule of law is ever to be fully restored to immigration in this country. I do have several suggestions that may assist the committee in strengthening H.R. 2671. They are as follows.
Section 101-Affirmation of Inherent Arrest Authority. It is important that nothing in the CLEAR Act be misinterpreted by the Executive Branch or by the Judiciary as narrowing the inherent arrest authority that the states already possess. The current wording says that ''law enforcement personnel of a State . . . are authorized'' to investigate and detain illegal aliens. I strongly recommend that the committee not use the word ''authorized,'' because it implies that Congress is authorizing or conferring these arrest powers upon the states. That is, of course, unnecessary since the authority is already possessed by the states and it flows from their inherent powers as sovereign entities within our federalist system. What should be stated unequivocally is that Congress has never preempted this authority. Such a statement would prevent courts from making any mistake on this account. I would also note that the inherent authority does not extend to ''removal,'' in the broad sense of adjudicating an alien's status and returning the alien to his country of origin. Therefore, I suggest the following alternative phrasing of Section 101:
''Notwithstanding any other provision of law, it is recognized that law enforcement personnel of a State or political subdivision of a State possess the inherent authority of sovereign governments to investigate, apprehend, detain, and transport aliens who are unlawfully present in the United States (including the transportation of such aliens across State lines to detention centers or to federal custody), in the enforcement of the immigration laws of the United States. It is further recognized that no Act of Congress has ever preempted this authority with respect to either criminal violations or civil violations of federal immigration law.''
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Section 103-Criminal Penalties and Forfeiture of Assets. With respect to this section, I wish to note at the outset that the Committee has correctly recognized that illegal immigration imposes a massive financial burden on all levels of government. The costs of providing education, health care, and other social services, combined with the law enforcement costs that are incurred regardless of whether a state chooses to cooperate in enforcing immigration laws, are staggering. The meager taxes collected from illegal aliens do not come close to reimbursing governments at the local, state, and federal level. It is estimated that the net cost of illegal immigration totals approximately $40 billion per year. The forfeiture of assets is an appropriate mechanism to allow governments to begin to recover these costs. It is also a substantial deterrent to those who would flaunt our immigration laws.
I would like to offer two minor suggestions to improve Section 103. First, it would be useful to create a blanket criminal misdemeanor offense that applies to any alien who violates any provision of U.S. immigration law or is unlawfully present in the United States. This would eliminate any ambiguity that persists regarding arrests for criminal versus civil violations of immigration law. It would also defeat the misinformation campaign that has been launched by organizations hostile to the enforcement of immigration laws. Second, I suggest that in Section 103(a), in the provision amending Section 275(b) of the Immigration and Nationality Act, after the phrase ''after the expiration of a nonimmigrant visa'' the following words should be inserted: ''or after the end of the alien's period of authorized stay in the United States.'' This would cover those situations in which the alien's visa is valid for a period beyond the period for which the alien is actually authorized to stay in the United States. This is common with B(1) and B(2) visas that may be valid for as long as ten years, even though the alien has only been authorized to stay in the United States for a period of six months.
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Section 104-Sharing of Information Through NCIC. This section is an extremely important component of the CLEAR Act. As the Committee is aware, the sharing of information with state and local law enforcement agencies through the National Criminal Information Center (NCIC) of the Department of Justice has improved substantially since the attacks of September 11, 2001. However, there are bureaucratic and institutional forces that have slowed the entry of information regarding aliens into the NCIC database. I suggest that the Committee reword Section 104 slightly, in order to (1) make the obligation to provide such information unmistakable and (2) to accelerate the entry of information regarding alien absconders. I suggest the following wording:
''Provision of Information to the NCIC.- Within 180 days after the date of the enactment of this section, the Under Secretary for Border and Transportation Security of the Department of Homeland Security shall provide the National Criminal Information Center of the Department of Justice with all information relevant for the apprehension of all persons who are known to have violated any immigration law of the United States. Thereafter, the Under Secretary shall be required to provide such information to the National Criminal Information Center with respect to each new violation that is discovered within 180 days after such violation becomes known to the Department of Homeland Security. The names and particulars of aliens who have disregarded or disobeyed a final order of removal shall be provided to the National Criminal Information Center regardless of whether the alien's failure to depart was willful and regardless of whether the alien received actual notice of the final order of removal.''
The alien absconder problem is of such immense magnitude that it has made an utter mockery of the rule of law. There are now more than 400,000 absconders at large in the United States. These aliens have had their day in immigration court and have disobeyed a final order of removal. A substantial number of absconders have engaged in serious criminal activity in addition to their immigration violations. Most absconders have committed criminal violations of the INA. Others have committed civil violations only, if the underlying immigration violation was of a civil provision and the refusal to obey the order of removal was not willful. At the end of 2001, the Department of Justice and the INS launched the absconder initiative, which has continued under the Department of Homeland Security. Under this initiative, the process of listing absconders in the NCIC database was begun. Although the initiative has yielded many valuable arrests with the cooperation of state and local law enforcement, the effort has been hamstrung by the fact that the entry of names into the NCIC database has occurred at an alarmingly slow rate. Indeed, the number of absconders is growing faster than the entry of absconders into NCIC. A primary reason is for this slow rate of entry is the current practice of attempting to ascertain whether federal immigration officials effected actual notice of the final order of removal. This is, of course, difficult when the alien has changed address without informing the immigration court or when the alien has become a fugitive. The inherent legal authority of a state or local law enforcement officer to make the arrest exists regardless of whether notice was effected. Therefore, this unnecessary impediment to the rapid entry of absconder data into the NCIC system should be unequivocally removed.
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Section 108-Claims by States and Localities Against the Federal Government. This section provides a useful incentive to ensure that the federal government remains a faithful partner in the cooperative effort to enforce immigration laws. I suggest only a minor clarification here. Section 108(a)(2), as currently drafted, indicates that the decisions of the administrative law judge ''may be appealed only to the Attorney General or the Secretary of Homeland Security . . .'' I would delete ''or the Secretary of Homeland Security.'' Because Section 108 locates the administrative law judge within the Department of Justice, and because it is consistent with the adjudication of immigration law questions by the immigration courts of the Department of Justice, it is appropriate that the Attorney General review any appeals. Ambiguity as to the final arbiter of such cases would only exacerbate the sensitivity that will inevitably surround such cases.
New Section 114-The Issuance of Driver's Licenses to Illegal Aliens. As the Committee is no doubt aware, the issuance of driver's licenses to illegal aliens by some states jeopardizes immigration law enforcement, general law enforcement, and national security. The driver's license effectively serves as the basic identity document in America today. It is a de facto national identity card issued by more than 50 different jurisdictions. Driver's licenses allow illegal aliens to operate with ease in American society and escape the scrutiny that might otherwise occur in routine law enforcement encounters. On our northern border the driver's license operates as an effective substitute for a U.S. passport, allowing an alien who is persuasive in falsely asserting U.S. citizenship to cross the border freely.
Permitting illegal aliens to acquire driver's licenses also opens up opportunities for criminals, whether they be foreign nationals or U.S. citizens. States that allow illegal aliens to possess driver's licenses inevitably reduce the level of identity documentation that is required to obtain a license. The result is that criminals are able to use the lax standards to create false identities backed up by the imprimatur of a driver's license. Such false identities facilitate money laundering, credit card fraud, and check fraud. They also defeat the operation of the NCIC system, because criminals are able to evade arrest warrants by presenting fraudulently-obtained ''clean'' licenses during traffic encounters with local law enforcement officers. Worse, the driver's license becomes a useful tool in the hands of terrorists. Virginia issued licenses to eight of the 9/11 terrorists-licenses that likely were used to board the airplanes on that fateful day.
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The most effective solution to this problem would be to make eligibility for federal highway funds contingent upon the states' denying driver's licenses to illegal aliens. Such funds should also be contingent upon states' setting expiration dates so that driver's licenses for legal aliens expire on the date that an alien's period of authorized stay terminates. The only documentation sufficient to qualify an alien for a driver's license should be a valid passport with a valid U.S. visa. This would allow state and local police officers to draw reasonable conclusions from an alien's possession of an unexpired driver's license.
In summary, it is clear that state and local police possess substantial inherent authority to make immigration arrests. It is also clear that the potential for closer cooperation with state and local law enforcement has not been fully exploited. Consequently, there has been a cost in the national security of the United States, as well as in the enforcement of immigration laws. The CLEAR Act would improve the situation substantially. I appreciate the efforts of this Committee to address these issues and the opportunity to share my perspective.
Mr. HOSTETTLER. Thank you, Professor.
STATEMENT OF JAMES R. EDWARDS, JR., Ph.D., ADJUNCT FELLOW, HUDSON INSTITUTE
Mr. EDWARDS. Mr. Chairman and Members of the Subcommittee, thank you for the honor of testifying today.
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Congressman Norwood deserves congratulations for putting together an outstanding bill. His CLEAR Act addresses all the major facets of the current problems that State or local law officers face when their routine brings them in contact with illegal or criminal aliens.
State and local law enforcement gets little cooperation from Federal immigration authorities at present. It usually goes like this: A police officer encounters an immigrant lawbreaker. The officer contacts Federal authorities. The feds say they're not coming to get the illegal alien, and so let him go.
This ''let them go'' pattern was well established before September 11th and continues today.
In addition to dismaying our Nation's law officers, ''let them go'' sends a signal to the at least 8 million illegal aliens already hereas well as to untold millions of would-be illegal aliensthat it pays to break our laws. And it's a slap in the face to the millions of legal immigrants who abided by the rules.
H.R. 2671 applies the ''broken windows'' model to immigration enforcement. ''Broken windows'' policing goes after lower-level offensesgraffiti, shoplifting, panhandlingin order to reduce more serious crimes.
''Broken windows'' policing works. Experience in New York City and elsewhere confirms it, as does research by groups like the Manhattan Institute. In the immigration context, there's proof, too. Last year the National Security Entry-Exit Registration System went online. Well, in conjunction with that, ICE started holding and removing the illegal aliens who came to register, so you know what happened? NSEERS caused many illegal aliens from terrorist-sponsoring countries to begin to leave on their own.
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Looking at the CLEAR Act: First, it clarifies legal authority in Federal law and it encourages States to do so. Now, it does that in a way that respects federalism and contains no unfunded mandates.
Second, H.R. 2671 enhances two-way information sharing and intelligence gathering. It informs the cop on the beat of immigration violations through the most established information-sharing tool in law enforcement, NCIC.
Third, the CLEAR Act provides additional resources. It looks for revenue not only to the Federal treasury, which is the taxpayers who abide by our laws, but also to the immigrants themselves through fines, fees, and forfeiture. The bill uses financial incentives and maximizes existing resources, such as the Institutional Removal Program.
Importantly, the CLEAR Act does not dictate a one-size-fits-all Washington solution. Instead, it allows States and localities the flexibility to use what works best for them. H.R. 2671 would reduce Federal noncooperation through an accountability system.
H.R. 2671 strikes a balance also by safeguarding the rights of aliens, ensuring police accountability, and preserving police discretion toward victims and witnesses.
The CLEAR Act should help deter illegal immigration. Such ''broken windows'' policingand the force multiplier of our Nation's finestcan be expected to reduce the number of new illegal immigrants, lead many illegal aliens to deport themselves, and curb bigger crimes.
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This approach would empower State and local police by getting them Federal cooperation rather than saddling them with the demoralizing knowledge that they're putting known lawbreakers back on the street.
What would our Nation have been spared had we applied ''broken windows'' enforcement to immigration violations before September 11th? Well, of course, we'll never know for sure. However, State or local police did encounter three of the terrorists in the days and months leading up to that date. And since then, police officers have encountered illegal aliens who are now suspected in subsequent violent crimes.
In conclusion, I believe policies like those in the CLEAR Act would be a step toward securing our borders, tackling illegal immigration, and restoring the rule of law.
Thank you, Mr. Chairman, and I am pleased to take your questions.
[The prepared statement of Mr. Edwards follows:]
PREPARED STATEMENT OF JAMES R. EDWARDS, JR.
Mr. Chairman and members of the subcommittee, thank you for the honor of testifying before this subcommittee. I commend you for holding this important hearing on this outstanding legislation. I approach today's topic from the perspective of someone who, as legislative director for a former United States Attorney, Rep. Ed Bryant of Tennessee, became closely attuned to the issues before his two subcommittee assignments, the Immigration and the Crime Subcommittees.
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Mr. Chairman, a very common complaint of state and local law enforcement is that they get very little cooperation from federal immigration authorities.
The problem has occurred time and time again from shore to shore. And the scenario is generally the same: In the normal course of his duties, a police officer encounters an immigration violator (or several of them). He contacts federal immigration authorities; in most parts of the country, they are located many miles away. The policeman is told that no federal agent is coming to get the illegal or criminal alien, so let him go.
This ''let them go'' pattern was well established before September 11, 2001. Troublingly, it remains common since September 11. Billings, Montana, Police Chief Ron Tussing responded with well-founded skepticism, as reported in the Billings Gazette last year, after U.S. Attorney General John Ashcroft asked a convention of police chiefs to help secure the homeland by calling federal agents whenever local police take immigration violators into custody. Chief Tussing said, ''We'd call them (INS) up and they'd say let them go, we're too busy.''
In a post-September 11 world, ''let them go'' is unacceptable.
A 29-year veteran assistant chief with the Border Patrol characterized the problem of illegal immigration to me as ''worse than epidemic.'' He said the practice of the Immigration Service has changed - but for the worse, now actually aiding and abetting more and more illegal immigration. This agent said the Immigration and Naturalization Service practice when he started out was to detain all illegal aliens; the only aliens INS released before deportation had extraordinary extenuating circumstances. But now, aliens are routinely released; the only ones held in custody are those with unusual circumstances.
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These ''let them go'' policies and practices have real-world consequences. ''Let them go'' policies apparently contributed to the year-long rape rampage of Reynaldo Elias Rapalo, the recently apprehended illegal criminal alien from Honduras who is suspected in seven rapes in Miami. Local law enforcement arrested him for ''lewd and lascivious'' molestation in October 2002, after his visa had expired. But he wasn't removed from the country.
''Let them go'' contributed to the rape of two nuns and the murder of one nun last year in Oregon. El Salvadoran illegal alien Maximiliano Silerio Esparza, who has been indicted in these crimes, had been caught and let go by the Border Patrol, despite his prior criminal record and an outstanding warrant for his arrest.
''Let them go'' put Jamaican illegal alien Lee Malvo back on America's streets after police captured him in Washington State. This occurred just months before the Washington, D.C., sniper shootings of 2002, in which Malvo is a suspect.
''Let them go'' incidents happened this past summer in the subcommittee chairman's district. In one incident, Indiana State Troopers stopped a van with 15 people in it - one of whom was a drug trafficker. ICE reportedly let them go. In another subcommittee member's district, local police in Greensburg, Pennsylvania, caught seven illegal aliens this past spring, but ICE told the police to release them.
These are only a handful of examples of the sorts of violators our state and local police officers encounter every day while on the beat, yet federal officials, for whatever reason, don't think they pose a threat to the domestic tranquility, the general welfare, or the blessings of liberty of American citizens.
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The veteran immigration enforcer I mentioned earlier, and others with whom I have spoken, say there are many good, dedicated people in the immigration service. I believe that to be true. And there are valid reasons to explain why local INS offices - now Bureau of Immigration and Customs Enforcement - do not presently dispatch officers to respond to every call from a sheriff's deputy or state trooper who has illegal or criminal aliens in custody. But, again, it should be clear to everyone that ''let them go'' isn't good enough. More than terrorism threatens the homeland in these cases.
Immigration enforcers are outmanned. We have only 2,000 immigration investigators to cover the whole nation. Interior states may have just one or two ICE enforcement officers stationed there. For all the tough talk about securing our borders (which remain as leaky as a sieve), we have virtually abandoned interior enforcement. A witness from the General Accounting Office told this subcommittee on April 10 that we spend one-fifth the money on interior enforcement that goes to border enforcement.
These immigration enforcement officers who are charged with interior enforcement are trained investigators. They work diligently to crack alien smuggling rings, ID and benefits fraud schemes, and other immigration-related criminal enterprises. Understandably, it would be hard to do the good work that these dedicated officers do if they constantly were having to drop everything, drive a couple of hours to a county jail, take custody of routine immigration lawbreakers, drive back, and process them for removal. From a resource-allocation standpoint, this wouldn't be the best use of their time and talents. But, once again, while this situation is understandable, that does not justify ''let them go'' policies or mean that the situation should continue uncorrected in post-September 11 America.
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The ''let them go'' culture of federal immigration authorities has real-world consequences. First, this response has won the federal immigration agency a low reputation in the minds of state and local police. It has developed and ensconced the perception of the INS (now ICE) as unwilling to cooperate, lax in its attitude toward enforcing immigration violations, and unresponsive. ''Let them go'' has left a bad taste in the mouth of state and local law enforcement. From the perspective of state and local police agencies, they are trying to do their duty and help enforce the very laws that are the federal agency's prime responsibility to enforce, so why would ICE not act responsibly and responsively in these cases where cooperation is key?
In addition to dismaying our nation's law officers, ''let them go'' sends a clear signal to the at least 8 million illegal aliens already in this country - as well as to the untold millions of would-be illegal aliens - that breaking our law is of no consequence. Our lack of enforcing many of our immigration laws leads illegal and criminal aliens to believe there is no down side for them; even if they get caught, chances are authorities will set them free and put them back on the streets of America. At worst, they will get a free trip home, from where they can quickly return, perhaps through one of the alien smuggling rings that have proliferated and operate unthreatened across our country. This is a dangerous message to send in a post-September 11 world.
We know that smuggling rings have become big business on the black market. We also know that among them are those who smuggle into the United States Middle Easterners. There have been reports of finding Islamic prayer rugs in the desert Southwest. Smuggler George Tajirian from Iraq is said to have snuck in more than 1,000 illegal aliens from the Middle East. And alien smugglers mix trafficking in persons with trafficking in narcotics. We know 18-wheeler trucks are becoming the vehicle of choice for these criminal enterprises. Foreign and ethnic gangs, such as the Salvadoran MS-13, are on the rise across America. All of this is abetted by a lack of taking basic illegal immigration violations seriously and giving federal cooperation and support to the state and local police who run across alien lawbreakers.
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As a practical matter, there are several more aspects to the problem. State and local law officers may be unclear about their legal authority to enforce immigration laws. Regrettably, activist judges, INS officials, and the Clinton Justice Department have clouded the issue. But even the Clinton Justice Department acknowledged, ''It is well-settled that state law enforcement officers are permitted to enforce federal statutes where such enforcement activities do not impair federal regulatory interests.'' James Madison, who knew a little bit about our Constitution and state sovereignty under it, said in Federalist 45 that states retain ''a very extensive portion of active sovereignty.''
As you know from a hearing earlier this year, some big cities have ''sanctuary'' policies that prohibit police cooperation with federal immigration authorities and coddle immigration lawbreakers. Such policies directly and flagrantly violate federal law. This subcommittee's hearing highlighted New York City's sanctuary policy and the unintended but not unforeseeable consequence of a gang rape by illegal immigrants, about half of whom had prior criminal records and should have been removed.
Another practical problem relates to information-sharing. The cop on the beat routinely uses the National Crime Information Center to check for outstanding warrants and fugitives. NCIC gives quick responses. It is ingrained in the modern police culture. But NCIC contains virtually no immigration violation records. The Justice Department has begun listing absconders - aliens under final order of removal - in NCIC, but is far from having all of the nearly 400,000 absconders in the system. And the immigration-violation database, housed in the DHS Law Enforcement Support Center, requires a secondary, slower, more onerous check - one from which an officer on the side of the highway on a traffic stop doesn't have time to wait for an answer.
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At a hearing last week of the Senate Judiciary Immigration Subcommittee regarding information-sharing, several Senators expressed how vital it is that information about alien threats be available to state and local police officers. One Senator observed that having 8 to 10 million illegal aliens in our country is itself a homeland security issue. Yet, that hearing confirmed that records about such offenses as visa overstay and absconding under final order of removal still remain largely inaccessible to ''the average state trooper.''
A third practical problem has to do with resources. It takes resources to hold illegal and criminal aliens in detention, to process, and to transport them. The State Criminal Alien Assistance Program is woefully underfunded, dropping from $585 million in FY 2002 to $250 million in FY 2003. A strong argument can be made that a good portion of the resources that police and ICE need for enforcement should come from the lawbreakers themselves, as restitution to society. At present, things are backwards. State and local law enforcers and taxpayers incur the costs of enforcing immigration violations, while the lawbreakers suffer practically nothing. Immigration crime presently pays for the lawbreakers while the public bears the costs. The incentives should be the other way around. Immigrant criminals should incur the costs, and police who catch them (and taxpayers) should reap rewards.
One more thing bears mention. We know that holding immigrant lawbreakers in custody greatly improves the chances of their removal from our country - that is, if we ''let them go,'' they almost uniformly don't comply with the law and disappear into the woodwork within our nation. The Department of Justice Inspector General in 1996 and 2003, as well as a 1998 GAO study, confirms that aliens who are detained get removed, while those not held in custody get away and stay here. The IG's report last February found that INS removed 92 percent of detained aliens, but only 13 percent of nondetained aliens in 2000 and 2001. Of INS's top priority, criminal aliens, just 35 percent of nondetained aliens were removed. A mere 3 percent of nondetained aliens from terrorist-sponsoring countries and 6 percent of nondetained asylum seekers who received final orders of removal - including ''potential terrorists'' - were removed. These reports confirm the obvious.
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There is a solution to this dangerous predicament, and the CLEAR Act (H.R. 2671) goes to it exactly. Every day, nearly 700,000 state and local police officers patrol our nation's communities, our highways and streets. And every day, state and local police officers going about their normal duties encounter immigration violators.
Rather than putting immigration violators back on the streets of America, law enforcement authorities should apply the ''broken windows'' theory of policing to immigration enforcement. This is a critical component to securing the homeland.
''Broken windows'' policing refers to a model developed by James Q. Wilson and George Kelling more than 20 years ago. It maintains that by enforcing laws against relatively minor offenses, more serious crimes will be reduced, as well. In other words, society sends a signal that it means business about law and order, and thus that it will not tolerate signs of disorder - property crimes such as breaking windows, graffiti, and shoplifting, ''quality of life'' offenses such as panhandling, prostitution, and public urination.
In the immigration context, alien smuggling rings, traffickers, immigration benefits frauds, counterfeit document producers and sellers, ID theft and fraud enterprises, and so forth are serious, more complex crimes and deserve the attention of ICE investigators. This is not even to mention the identification of terrorist cells and arrest of terrorist sleepers who use our immigration system to prosecute a war against the United States from within our borders. But it must be recognized and acknowledged that allowing the presence of at least 8 million illegal aliens in our midst - in fact, with some politicians even seeking to reward their illegality with green cards or in-state college tuition or valid driver's licenses - is the equivalent of tolerating graffiti, broken windows, and other so-called ''minor'' crimes in our cities.
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One thing we know: ''Broken windows'' policing works. For example, research from the Manhattan Institute found that Mayor Rudy Giuliani's application of ''broken windows'' policing in New York City led to falling crime rates. ''Broken-windows policing significantly and strongly associates with sharp reductions in violent crime; in fact, we estimate that it prevented at least 60,000 violent crimes in New York between 1989 and 1998,'' the Manhattan Institute reported in Winter 2002. Studies such as those by the National Bureau of Economic Research and the California Institute for County Government also confirm the validity of the ''broken windows'' model.
We have indications that the same approach, enhanced by using the vast number of state and local law enforcement personnel as force multipliers in immigration enforcement, would reduce the incidence of both ''low-level'' illegal immigration and the kinds of offenses ICE agents are investigating.
The National Security Entry-Exit Registration System, or NSEERS, went into effect this past year. It required nonimmigrant males from 25 terrorist-sponsoring nations to register with the INS. Lack of immigration enforcement had become so bad, many illegal aliens walked into INS offices to register expecting no adverse consequences. When INS actually detained these lawbreakers and word got around in immigrant communities, the next round of news reports told how many illegal aliens began to self-deport. Rather than register with NSEERS and risk being caught and removed, lawbreakers on their own fled to Canada or elsewhere outside this country. About 82,000 aliens registered with NSEERS; 13,000 were illegal aliens. An estimated 26,000 Pakistanis illegally resided in the United States in 2000; the Pakistani embassy has said 15,000 of its illegal aliens have left since September 11, 2001.
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The link between run-of-the-mill illegal immigration and more serious immigration violations must be acknowledged. In many instances, sneaking across the border is a precursor crime. It is inexorably linked to illicitly holding a job in America, acquiring and using false documents or valid ID documents fraudulently obtained, aiding and abetting fellow illegal and criminal aliens, harboring fugitive illegal aliens, involvement with smuggling rings, and so forth. And most instances of illegal immigration - simply staying in this country - are continuing offenses.
Not enforcing the laws against the seemingly low-level immigration violators is the same as not going after the graffiti artist, the trespasser, the loiterer, the panhandler, the window breaker. It sends a message that they can get away with this lawbreaking, so they can get away with breaking other laws. Acting on this belief is how the initial crime of illegally crossing our border becomes a precursor crime to larger offenses.
Columnist Rich Lowry wrote, ''In the post-Sept. 11 environment, it is no longer possible to shrug your shoulders and ask, 'What harm can one illegal immigrant do?''' We have 8 million illegal immigrants within our borders, and that number grows by upwards of a half-million each year. It is extremely difficult to pick out the few terrorists from such a huge crowd. But by implication, it should be easier to identify the millions of people who have committed precursor crimes of the immigration sort.
Taking advantage of the vast ranks of local and state police officers and the law enforcement duties they are already doing every day makes common sense. Border and Transportation Security Undersecretary Asa Hutchinson acknowledged at an April 10, 2003, hearing of this subcommittee that routine traffic stops and other routine law enforcement encounters present good opportunities to capture illegal aliens. These officers would not be taking on extra duties; rather, the federal government would simply take advantage of current, daily encounters as these officers go about their duty when they happen to come into contact with an illegal alien. This would be maximizing the available human resources to help enforce the laws already on the books and to hold the lawbreakers accountable.
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To do so will require clarifying legal authority. It will require two-way information sharing. It will require additional resources. It will require creative ways to maximize existing resources, such as use of new technology to conduct removal proceedings across long distances. It will require deriving resources from the lawbreakers; that is, immigration lawbreakers must be held accountable. And it will require flexibility so localities can come up with the most practicable means of detaining, transporting, and handing federal authorities custody of illegal criminal aliens.
The CLEAR Act
H.R. 2671 contains the solution that would close the gap. The bill would do so in exactly the ways just outlined and suggested in my Center for Immigration Studies report. Whenever state or local police come into contact with illegal or criminal aliens as the officers carry out their regular duties, the response from the federal side would no longer be ''let them go.'' This is the glaring problem. The CLEAR Act would fix it by providing practical means for federal and state or local law enforcement to work together in the apprehension, detention, transportation, processing, and removal of immigration lawbreakers.
First, the CLEAR Act clarifies the legal authority question in federal law. It encourages states to do so, too. The bill's approach does this in a way that respects the Founding Fathers' principle of federalism. States and localities retain the freedom to decide the extent of their law enforcement officers' involvement in enforcing immigration violations. H.R. 2671 contains no unfunded federal mandates. It merely empowers those states and localities that wish to have their police officers on the front lines of homeland security.
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Second, H.R. 2671 enhances two-way information sharing. The saying is that ''information is power,'' and two-way communication of intelligence is vital to any effort's success, from the battlefield to counterterrorism to crime fighting. This legislation puts information about immigration violators into the hands of the cop on the beat in the most practical way possible, through the most established tool of information sharing in law enforcement, NCIC. It provides a system for state and local jurisdictions to collect and send information to the Justice Department about their encounters with immigration lawbreakers. And the bill provides additional resources to help offset the cost.
This is ground-level intelligence that will yield a wealth of valuable data. From it can be gleaned patterns and trends in illegal immigration and specific information about individual immigration lawbreakers. With such two-way information sharing, law enforcement at all levels can make more informed improvements in strategy and tactics, coordination and implementation. With this kind of data, those aliens who threaten our homeland's security may be able to run, but they cannot hide.
Third, the CLEAR Act provides additional resources to bring ''broken windows'' policing to immigration violations. It does this in a very responsible, practical way. It doesn't look primarily to additional federal spending, in terms of very heavily tapping the federal treasury. It does increase the SCAAP authorization and creates a new grant program, but at realistic levels. It looks as well to the ill-gotten gains of immigration lawbreakers as a source of revenue. This follows the model we use with respect to other crimes, where the assets of lawbreakers help fund law enforcement efforts, federal and state and local.
Page 75 PREV PAGE TOP OF DOC The bill provides financial incentives to the states and localities that choose to become more involved in this aspect of securing the homeland. It contemplates applying resources to all the major elements of the process, from apprehension to removal from the country. These include police training, detention, transportation, administrative or criminal proceedings, exchange of custody, and removal. And H.R. 2671 builds on existing resources, maximizing their use. For instance, the bill makes the existing Institutional Removal Program and Internet training programs more widely accessible to state and local law enforcement.
Importantly, H.R. 2671 allows for the flexibility of the states to be ''the laboratories of democracy'' in this area. States and localities would be the drivers in creatively solving the challenges of detention, transportation, and so forth. That is, the CLEAR Act refrains from dictating a ''one-size-fits-all,'' Washington ''solution.'' Rather, states and localities would determine the best way to address each specific thing. For example, one city may be close to an ICE office, so the best way to hand over custody of illegal criminal aliens to federal authorities would be for ICE to establish a circuit-riding system. The local police and county sheriff in that area would know that every Tuesday morning at 11, the ICE van would come to the courthouse square for alien pickup. In another locality, it may make more sense for the county sheriff's department to contract with the federal government to transport the aliens itself. In another place, perhaps contracting with a private security firm to transport apprehended aliens to a federal detention facility would work best. CLEAR provides such practicality and flexibility.
Also of importance, H.R. 2671 includes measures to end federal noncooperation and the nonresponse of ''let them go.'' Nothing works as well to rectify a problem as sunlight and accountability. These are the principles the CLEAR Act applies. State or local law enforcement agencies could hold uncooperative or unresponsive federal agencies accountable through a limited administrative appeals process.
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Finally, H.R. 2671 would ensure that the civil rights of aliens are safeguarded and that jail facilities used for detention meet federal standards. The bill strikes the right balance to ensure that police agencies do not take license, but remain accountable. It preserves police officers' discretion with respect to crime victims, witnesses, and tipsters. It only involves police officers in immigration law enforcement to the extent they encounter illegal and criminal aliens in the course of the officers' normal duties.
All told, the CLEAR Act would have a deterrent effect on illegal immigration. By its force-multiplication through state and local police, it increases the chances that an immigration lawbreaker will get caught, that he will be held in custody, that he will face being identified through fingerprinting and the creation of a record, that he will forcibly leave the country, that he will leave behind his ill-gotten gains acquired from having broken our nation's laws, and that if he re-enters the United States then he will be recaptured and suffer even greater consequences.
By holding lawbreakers accountable, individual immigration violators will get the message that America is no longer turning a blind eye to their offenses. That message also goes out to would-be lawbreakers. Such ''broken windows'' policing can be expected to reduce the number of new illegal immigrants, lead at least some current illegal immigrants to self-deport, and have the spillover effect of curbing some of the bigger immigration crimes. It starts to ''drain the swamp,'' as in the Weed and Seed program. These beneficial effects would occur at a manageable rate. Thus, there would not be the severe impact of mass deportations or huge raids. Suddenly burdening the law enforcement and criminal justice and immigration enforcement systems with great numbers of people - much like the deleterious effect on the immigration backlogs of amnesties such as the LIFE Act's 245(i) extension or the gross expansion of legal immigration as through the 1990 Immigration Act's multiplication of legal immigration categories and quotas - would be counterproductive, overwhelm the system, and possibly cause the economy some harm.
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This bill's approach would change the dynamics of the war on crime and terrorism. It would change the mindset of no fear of capture or punishment among immigration lawbreakers. It would restore confidence in federal immigration agencies. It would empower state and local police to finish the job, rather than saddle them with the demoralizing knowledge that they are putting lawbreakers right back on the street.
This common-sense solution of law enforcement cooperation has been recommended by the National Taxpayers Union Foundation. In its recent report Borderline Infraction: Unsafe Borders, Complacent Government?, NTU identified the need for the Department of Homeland Security immigration agencies to ''collaborate with law enforcement on the local, state, and federal levels that are monitoring or assisting in the apprehension of illegal immigrants'' and ''work more aggressively to root out fraudulent benefit payments to illegal immigrants.'' NTU notes how such reforms would save taxpayers billions of dollars.
The American public overwhelmingly supports such an approach. A RoperASW poll this past spring found 85 percent in support of ''requiring state and local government agencies, and law enforcement agencies, to apprehend and turn over to the INS illegal immigrants with whom they come in contact.'' Sixty-two percent of respondents ''strongly'' agreed. Eighty-three percent support ''mandatory detention and forfeiture of property'' for illegal aliens. Seventy percent favor mandatory prison sentences, in addition to asset forfeiture and removal, for immigration law violations.
Encouraging and enabling federal cooperation to those state and local police who are already trying to do their part in immigration enforcement would vastly help to secure our homeland. What would our nation have been spared had we applied ''broken windows'' enforcement to immigration violations prior to September 11? Of course, we will never know. However, the fact that three of the terrorists - Hani Hanjour, Ziad Jarrah, and Mohammed Atta - were stopped by state or local police prior to that fateful date chillingly illustrates that opportunity exists for state and local law enforcement to play a vital role on this front. The stakes are too high for America's well-being not to pursue this avenue.
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In conclusion, I believe H.R. 2671, the CLEAR Act, would be the most appropriate next step toward securing our borders, tackling illegal immigration, and restoring the rule of law in an area in which we have far too long been derelict. It addresses the problem areas relating to authority, information, and resources. And it does so in a very practicable, effective manner. Our nation would benefit tremendously from the provisions of the CLEAR Act.
Mr. Chairman, I am submitting along with this testimony my CIS backgrounder for inclusion in the record. It elaborates on many topics I have merely highlighted here. I am now pleased to take questions from the subcommittee. Thank you.
Mr. HOSTETTLER. Thank you, Dr. Edwards.
STATEMENT OF GORDON QUAN, MAYOR PRO TEM, HOUSTON, TEXAS
Mr. QUAN. Thank you, Chairman Hostettler and Ranking Member Sheila Jackson Lee and Members of the House Subcommittee on Immigration, Border Security, and Claims, for this opportunity to speak with you today. My name is Gordon Quan. I'm Mayor Pro Tem and At-Large Council Member from the city of Houston. I'm pleased to testify today on behalf of the National League of Cities in opposition to H.R. 2671.
I'm here to speak on four issues: the issue of preemption, which was mentioned previously; unfunded mandates; community policing; and racial profiling. As the Committee considers new ways to improve the Nation's security, I ask that it does so without diverting central Federal responsibilities onto local governments.
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Like many major cities in the United States, Houston has seen a dramatic demographic transformation in the past 20 years. Houston is roughly one-third Anglo, one-third Hispanic, and one-third black/Asian. With 77 consulates in our city, we have the third highest number of foreign governments represent. The port of Houston ranks as the number one port in foreign tonnage. We are truly an international city.
Since September 11th, local law enforcement across the Nation has improved the security of our cities. In my city of Houston, we've spent approximately $14 million more in securing the city since 9/11. The mayor's office and the Houston Police Department estimate that we're spending an additional $584,000 per month for security of our city's water plants, airports, extra helicopter flights, among other things. This figure does not include the added costs for securing our City Hall and such soft targets as local temples and synagogues.
NLC's policy on immigration and the role of local government is clear. The local police have a responsibility to cooperate with the Federal Government to apprehend specific persons identified as having committed a crime and violated U.S. immigration laws and who have been located by the Federal Government. However, local personnel cannot be conscripted into Federal service because the Federal Government has decided not to fund and staff its immigration enforcement agencies to meet the demand. This type of action can divert local personnel from their primary duties and constitute a cost shift under our local government.
Let me go to the first issue of preemption, which was discussed previously. Section 102 would preempt State and local laws that bar their law enforcement officers from assuming the Federal responsibility of enforcing Federal immigration laws. This section would also have the effect of preempting two State lawsAlaska and Oregonand the resolutions and measures of numerous municipalities, including the city of Houston.
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In June 1992, the city adopted the Police Department General Order 5005, which holds that undocumented immigration status is not in and of itself a matter for local police action and entry without inspection is not to be treated as an ongoing offense. The order prohibits police officers from stopping or apprehending individuals solely on the belief that they are in the country illegally. This order has served the people and the law enforcement community of Houston, Texas, well since its adoption.
Houston, like so many cities within the country, has routinely assisted the Federal Government by apprehending, housing, feeding non-documented criminal suspects in our jails until the Bureau of Immigration dispatches officers to retrieve these suspects. More often than not, as was mentioned earlier, SCAAP reimbursement is less than the financial burden assumed by the local police departments. In essence, 102, section 102 is Congress' way of telling local governments that they must assume the responsibilities of the Federal immigration agency or risk not getting reimbursed for the services that they have rendered.
No less a person than the Governor of Florida, Jeb Bush, has said, ''I would have a lot of trepidation if every police officer was to bewas going to be a sworn INS officer, and our duties end up with local law enforcement becoming the immigration cops of the country.''
Unfunded mandate. Despite our trying times, the city of Houston and other municipalities have already assumed much of the financial burden for homeland security while they wait for first responder funds to trickle down to the local level. Section 109 of the CLEAR Act would require the Federal Government to pay only 50 percentup to 50 percent of the training costs of State and local elected officials to enforce our Federal immigration laws. In addition, there is no guarantee that Congress will ever fully fund the $1 billion mentioned in section 106, authorized to State and local police agencies to obtain equipment, technology, and other administrative support.
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It's unfair to demand that under the threat of preemption that local governments undertake the Federal Government's responsibilities. It's also unreasonable to mandate such responsibilities upon local governments without full financial support. As was mentioned earlier, letters have been received to this Committee from the Americans for Tax Reform, the American Association of Counties, the American Conservative Union, all supporting our position.
The effects of community policing and racial profiling is the last thing I'd like to talk about. Police departments across the country have raised concern that efforts to force local officials to enforce Federal laws would damage successful community policing initiatives and inadvertently encourage racial profiling. I know that has been alluded to previously, but I am concerned that the effects of the CLEAR Act, if enacted, would have these effects.
As a local elected official and a lawyer practicing immigration law for over 26 years, I know too well that communication, visibility, and trust are the foundation of effective community policing. Victims of crime must know that they can call us without threat that we will detain them or deport them simply because of their immigration status.
Our Government has the important task of stopping credible threats of terrorism. However, the CLEAR Act may hinder the fight against terrorism if members of the immigrant communities cannot trust the police officers who serve them.
In closing, I respectfully ask that this Subcommittee fully weigh my comments as an elected official and immigration law expert. I further ask that you take into account the unmanageable burden the CLEAR Act would place on local law enforcement. Specifically consider the burden in costs, personnel, and the potentially devastating effect on community policing programs. The American public wants to find effective tools to combat terrorism. I submit the most effective tools are not preemption, unfunded mandates, deteriorating policecommunity policing, and racial profiling but, rather, effective tools to fight terrorism are to improve coordination, planning, technology, training, and funding.
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Thank you very much.
[The prepared statement of Mr. Quan follows:]
PREPARED STATEMENT OF GORDON QUAN
Thank you, Chairman John Hostettler (R-IN), Ranking Member Sheila Jackson Lee (D-TX), and members of the House Subcommittee on Immigration, Border Security, and Claims for the opportunity to speak with you today. I am Gordon Quan, Mayor Pro Tem and At Large Council Member from Houston, Texas. I am pleased to testify on behalf of the National League of Cities on H.R. 2671, the ''Clear Law Enforcement for Criminal Alien Removal Act of 2003''.
The National League of Cities (NLC) is the nation's oldest and largest association representing municipal interests in Washington, D.C. NLC represents more than 16,000 cities of all sizes - from our largest member New York City with a population of 8 million to our smallest member De Graff, Minnesota with a population of 133. As the representative of the nation's local leaders, NLC has a vital interest in clarifying the roles and responsibilities for local law enforcement in the enforcement of federal immigration law and stopping terrorisms.
I am prepared to testify before you as the president of the Asian Pacific American Municipal Officials of the National League of Cities as well as an advisor to the Houston Mayor, Lee P. Brown's Office for Immigration and Refugee Affairs. I am certified by the Texas Board of Legal Certification in Immigration and Nationality Law and have practiced in this area of law for the past 26 years.
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Like many major cities across America, Houston has seen a dramatic demographic transformation in the past twenty years. No one ethnic group comprises the majority of the population in Houston. We have benefited greatly from immigrants moving to our city. Houston is roughly one-third Anglo, one-third Hispanic and the remaining third Black and Asian. With 77 consulates in Houston, we have the third largest consular corps in the U.S. The Port of Houston ranks number one in foreign tonnage in the U.S. We are truly an international city.
Since September 11, local law enforcement across the nation have improved the security of their cities. In my city of Houston, Texas we have significantly assumed responsibilities for counterterrorism in partnership with federal law enforcement agencies revamped emergency preparedness plans, provided airport security, responded to anthrax threats and incidents, purchased new equipment and shouldered significant costs in overtime pay.
Since September 11, the Mayor's office and Houston Police Department estimate that we are spending an extra $584,000 per month for security at the city's water plants, airports, extra helicopter flights, among others. That figure does not include the added cost for security at City Hall and ''soft targets'' such as local temples and synagogues. In sum, the City of Houston has spent $14 million more on securing the city since September 11, 2001.
As this committee considers new ways to improve the nation's security, I ask that it does so without diverting essential federal responsibilities onto local governments. I am specifically referring to H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal Act of 2003 (The CLEAR Act). The bill, authored by Rep. Norwood (R-GA), would mandate that state and local law enforcement enforce federal immigration laws or risk the reimbursement from the State Criminal Alien Assistant Program (SCAAP).
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NLC's policy on immigration and the role of local government is clear. Specifically, it reads:
With regard to the enforcement of federal immigration laws, local police have a responsibility to cooperate with the federal government to apprehend specific persons identified as having committed a crime and violated US immigration laws and who have been located by the federal government. However, local police should not be responsible for reporting or retaining the custody of those persons they have detained or charged.
Local personnel cannot be conscripted into federal service because the federal government has decided not to fund and staff its immigration enforcement agencies to meet demand. This type of action can divert local personnel from their primary duties and constitute a cost shift onto local governments. National Municipal Policy and Resolution, Section §4.06(D)(5)(A)(ii)
Simply put, the CLEAR Act, if enacted, would be bad policy on many grounds. I am here to speak on four issues: preemption, unfunded mandate, community policing, and racial profiling.
The Preemption Issue:
If the Senate were to adopt the CLEAR Act it would blatantly preempt state and local laws. Specifically, Section 102 of H.R. 2671 would require state and local governments to pass laws authorizing their law enforcement officers to enforce federal immigration laws or risk losing reimbursement from the federal government for costs related to the incarceration of illegal immigrants. Put simply, Section 102 would preempt state and local laws that bar their law enforcement officers from assuming the federal responsibility of enforcing federal immigration laws. This section would have the effect of preempting two state laws (Alaska and Oregon), and the resolutions and measures of numerous municipalities including the city of Houston.
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In June 1992, the City of Houston adopted Police Department General Order No. 5005 which holds that undocumented immigration status is not in itself a matter for local police action and entry without inspection is not to be treated as an on-going offense. The order also prohibits police officers from stopping or apprehending individuals solely on the belief that they are in the country illegally. This Order has served the people and the law enforcement community of Houston, TX well since its adoption.
Houston, as with many cities across the nation, has routinely assisted the federal government by apprehending, housing, and feeding non-documented criminal suspects in our city jails until the Bureau of Immigration dispatches its officers to retrieve the suspects. Local governments have done so despite the costs associated with these services. Indeed, members of this Subcommittee are all too aware of the annual battle local governments undergo to get SCAAP reimbursement for the costs incurred by local law enforcement for assisting the Bureau of Immigration. More often than not, the SCAAP reimbursement is less than the financial burden assumed by the local police departments.
Why then would Congress consider a bill that would punish the very sector of law enforcement that has stepped in to fulfill the responsibility of the federal immigration bureau? Section 102's threat to withhold SCAAP reimbursement to local governments is a blunt force of extortion. In essence, Section 102 is Congress' way of telling local governments that they must assume the responsibilities of the federal immigration agency or risk not getting reimbursed for the services they have rendered.
On behalf of the National League of Cities, ''No thank you.'' Congress should not preempt local governments simply because the federal government has failed or is unwilling to adequately staff and fund its federal enforcement agencies. Local governments will continue to cooperate with the federal government in its endeavor to stop crime. However, before Congress usurps local authority, it should first consider the precedent, the policy implications, and the cost of such a drastic measure.
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Members of the Subcommittee, the events of September 11th and the events thereafter have clearly demonstrated that the men and women in blue are partners in fighting terrorism. Therefore, on behalf of these men and women, I ask that you gravely reconsider any attempt to preempt local law. Preemption would unduly burden already overworked police forces around the nation.
Protecting the homeland cost billions of dollars.. Local governments have already assumed much of the fiscal burden while they wait for first-responder funds to trickle down to the local level. As a Mayor Pro Tem and an At-Large Councilmember from Houston, I can tell you it is extremely difficult to protect essential policing services in these fiscal trying times. NLC and the City of Houston would therefore welcome your support for full funding for first-responder grant programs, the Community Oriented Policing Services (COPS) program, and the Local Law Enforcement Block Grant. NLC, however, unequivocally opposes yet another Congressional effort to saddle local governments with an unfunded mandate.
Chiefly, I am perturbed by Section 109 of the CLEAR Act, which would require the federal government to pay only up to 50% of the cost to train state and locally elected officials to enforce federal immigration laws. In addition, there is no guarantee that Congress will ever fully appropriate the $1 billion Section 106 authorizes for state and local police agencies to obtain equipment, technology, and other administrative support. It is a leap, indeed, to assume that $1 billion is a sufficient authorization figure.
Page 87 PREV PAGE TOP OF DOC On behalf of the NLC, I respectfully ask, pursuant to Title I of the Unfunded Mandate Reform Act (UMRA), that members of this Subcommittee ask the Congressional Budget Office to prepare a mandate statement as it relates to the intergovernmental mandate issued in the bill. UMRA was passed to ensure that ''Congress had information about the costs of mandates before it decided whether to impose them and encourage the federal government to provide funding to cover the costs of intergovernmental mandates.''
Additionally, NLC policy specifically calls for the Congress to ''explicitly express its intent to preempt, and accompany any such proposals with a timely intergovernmental analysis, including estimated costs.'' (National Municipal Policy §1.06(J))
The CLEAR Act, as proposed, presses local governments and their law enforcement officials to perform additional federal immigration duties under the threat of preemption and with no guarantee of full funding. Members of the Subcommittee, if Congress is ready to improve the security of this nation by strengthening its immigration enforcement, then it must be willing to properly fund the appropriate personnel and programs. As stated earlier, local police have a responsibility to cooperate with the federal government. However, local police cannot be conscripted into federal service because the federal government has decided not to fund and staff its immigration enforcement agencies to meet demand.
To shift the responsibility of immigration law enforcement to local governments without the necessary funds undermines the integrity of those championing the bill. The cost for police overtime, improved planning and coordination, and security enhancements have already been assumed by local governments. It is unfair to demand, under the threat of preemption, that local governments to undertake the federal government's responsibilities. It is also unreasonable to mandate such responsibilities upon local governments without full fiscal support.
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Effect on Community Policing and Racial Profiling
Police departments across the nation have raised concerns that efforts to force local officers to enforce federal immigration laws would damage successful community policing initiatives and inadvertently encourage racial profiling. I, too, am concerned with the effect of the CLEAR Act, if enacted. As a local elected official and immigration lawyer with over 26 years of experience, I know too well that communication, visibility, and trust are the foundation of effective community policing. Victims of crime must know that they can call us without the threat that they will be detained or deported simply because of their immigration status.
NLC's policy specifically states, ''Community policing must be seen as part of the basics in law enforcement. There must be a constant commitment to assure that justice is dispensed equally and not based on race, gender, religion, national origin, sexual orientation, disabilities, education, or economic status of the victims or perpetrators.'' (National Municipal Policy §6.01(B)) In short, NLC supports community policing and opposes profiling.
Forcing local law enforcement to be the ''eyes and ears'' of every civil immigration violation, would demoralize the very members in the community we are sworn to protect. The job of police officers is tough. I ask you, members of the Subcommittee, not to further complicate an already delicate situation. The State of Texas and my city of Houston are truly reflective of the diversity we praise in this nation. However, it would be a grave error to mandate that local police officers must now round up and detain those suspected of civil immigration violation.
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Our government has the important task of stopping credible threats of terrorism. However, rounding up individuals standing based on their suspected citizenship status would undermine the credibility of the police departments and do little to prevent another tragedy like September 11th. In fact, H.R. 2671 may hinder the fight against terrorism if members of the immigrant community cannot trust the police officers who serve them. The CLEAR Act would render our communities to be less safe and our country no more secure.
In closing, I respectfully ask that this subcommittee fully weigh my comments as an elected local and immigration legal expert. I further ask that you take into account the unmanageable burden the CLEAR Act would place on local law enforcement. Specifically, consider the burden in cost, personnel, and the potentially devastating effect on community policing programs.
The American public wants us to find effective tools to combat terrorism. I submit that the most effective tools are not preemption, unfunded mandates, deteriorated community policing, and racial profiling; rather, our most effective tools to fight terrorism are improved coordination, planning, technology, training, and funding.
Mr. HOSTETTLER. Thank you, Mayor.
The Subcommittee will now move to questions, and, Mayor Quan, I have a question for you with regard to the general order that you mentioned in your testimony of the Houston Police Department, General Order No. 5005. That orders states, in part, ''officers shall not make inquiries as to the citizenship status of any person, nor will officers detain or arrest persons solely on the belief that they are in this country illegally. Officers will contact the Immigration and Naturalization Service regarding a person only if that person is arrested on a separate criminal charge other than a Class C misdemeanor and the officer knows that the prisoner is an illegal alien.''
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In your testimony, you stated that the order prohibits officers from stopping or apprehending individuals solely on the behalfon the belief that they are in the country illegally. Did you know that the order also does not allow for even inquiries as to the citizenship even outside of the
Mr. QUAN. That's correct, yes.
Mr. HOSTETTLER. My question is: If an officer cannot ask an alien his or her status, how would the officer determine that the alien is here illegally?
Mr. QUAN. Again, we're not stopping people just because of immigration status, so why are we making that inquiry, Mr. Chairman? I mean, your
Mr. HOSTETTLER. If I can askif I can ask you a question, my question is: Why does an officer ask the status, the citizenship status other than wanting to know if they are in the country legally or illegally?
Mr. QUAN. We don't ask the status. That's the
Mr. HOSTETTLER. That's what I'm saying. That's what I'm saying. But it says here the officer knows that the prisoner is an illegal alien. So you sayyou say that they cannot ask at all the status of an individual?
Mr. QUAN. It is not our policy to inquire about immigration status.
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Mr. HOSTETTLER. Okay. The Immigration and Nationalitywell, it's not only not youryou prohibit it by the order.
Mr. QUAN. That's what the order says.
Mr. HOSTETTLER. Okay. The Immigration and Nationality Act states, ''Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit or in any way restrict any government entity or official from sending to or receiving from the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.''
Now, as a result of your last response, by preventingprohibiting Houston police officers from contacting the INS about certain aliens, doesn't the general order violate the Federal Code?
Mr. QUAN. What you just read was that we do not prohibit officers from conveying that information to the Federal Government, and which we do not prevent that from happening. Our line of inquiry is that is not our area of jurisdiction. We do not have our officers make those questions unlessif that's solely the reason why we're stopping the individual.
Mr. HOSTETTLER. So you do not believe that that's in any way restricting the INS from receiving information about the status of an individual.
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Mr. QUAN. We cooperate with the INS veryICE, as it's called now, very closely. We have an Office of Immigration and Refugee Affairs. We have representatives from the immigration authorities serve on that committee to work on policies together with our city to make sure that we can work cooperatively.
Mr. HOSTETTLER. Mr. Quan, Walter Sorto is an alien who apparently entered the United States illegally in May 1995. The Houston Chronicle has reported that he has been charged with the murder, for the 2002 rapes and slayings of three women in Houston. According to information that the Subcommittee has received, Sorto was arrested by the Houston Police Department in June 1999 for unlawfully carrying a weapon. On October 2000, Sorto was arrested by the Houston Police Department for aggravated robbery for which he was convicted in December 2000. Both of those arrests occurred more than a year before the slayings of the three women. The Houston Chronicle also reports that Sorto was ticketed by Houston police for several timesfor traffic violations before the three slayings.
Now, Mr. Sorto's status and robbery conviction would have rendered himrendered him removable. Do you know of Walter Sorto
Mr. QUAN. I don't know Walter Sorto, but the policy, as I understand it practicing immigration law for so many years, is that a detainer will be placed on an individual who was not born in the United States for immigration to make a determination as to whether the person is legally or illegally in the United States.
Mr. HOSTETTLER. Do you know whether the Houston police ever referred him to the INS?
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Mr. QUAN. I'm not familiar with that case, sir.
Mr. HOSTETTLER. If not, can you check with the Houston police and
Mr. QUAN. I'll be glad to do that.
Mr. HOSTETTLER. Do you know whether the general order that we referred to earlier may have contributed to a decision not to refer him to the INS?
Mr. QUAN. Not at all, sir. A person who committed those type of offenses would, in fact, be placed in the Harris County Jail, a detainer would be placed on them for immigration to come out and do an investigation to see if they have a lawful status to be here. That's the normal policy.
Mr. HOSTETTLER. So the general order would not havewould not have stoppedbut you said it's not
Mr. QUAN. If it's above a Class C.
Mr. HOSTETTLER. No, it says ''shall not make any inquiries as to citizenship status of any person.''
Mr. QUAN. Okay.
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Mr. HOSTETTLER. That's regardless ofbut it says officers will contact the INS regarding a person only if the officer knows that the prisoner is an illegal alien. But if they can't ask the status, how will they know that an individual who has committed a criminal act is an illegal alien?
Mr. QUAN. Again, I think if you look at the order, it deals with Class C and not making that inquiry clearly only on that being the sole basis for the stop.
Mr. HOSTETTLER. But, I mean, the order is very clear. The orders says, ''Officers will contact the Immigration and Naturalization Service regarding a person only if the officer knows that the prisoner is an illegal alien. Officers shall not make inquiries as to the citizenship status of any person solely on the belief''so what I'm asking is
Mr. BERMAN. Finish that sentence: ''...solely on the belief'' what?
Mr. HOSTETTLER. ''...solely on the belief that they are in this country illegally.''
Mr. QUAN. Right.
Mr. HOSTETTLER. Yes.
Page 95 PREV PAGE TOP OF DOC Mr. QUAN. If it's solely on the belief they're in the country illegally, then they're not to make the arrest on that basis.
Mr. HOSTETTLER. But the questionit disallows the question, because it says later, ''the officer knows that the prisoner is an illegal alien.'' You don'tyou do not allow the question in the first part. There can be an arrest that's made on a criminal act, but that part of the order says the officer knows that the prisoner is an illegal alien.
Mr. QUAN. Again, Mr. Chairman, our policy has been to arrest people who have committed criminal offenses, and then if there's a question of their nationality
Mr. HOSTETTLER. And then they can askthey can ask status at that point, is what you're saying.
Mr. QUAN. Yes.
Mr. HOSTETTLER. They do. So they asked the status of Mr. Sorto?
Mr. QUAN. At that point, after they arrested.
Mr. HOSTETTLER. Okay. So there is
Mr. QUAN. And then a detainer can be placed on them for immigration to come out and do a more thorough investigation because we're not equipped to do a more thorough investigation.
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Mr. HOSTETTLER. Okay. So it's highly likely that Mr. Sorto, because of the robbery, was asked of his status.
Mr. QUAN. I would assume so, yes.
Mr. HOSTETTLER. Okay. Thank you. The Committee will be looking forward to that part of the investigation.
Mr. QUAN. Okay.
Mr. HOSTETTLER. The Chair recognizes the gentlelady from Texas, Ms. Jackson Lee, for 5 minutes.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and thank the witnesses. And might I again, as a moment of personal privilege, thank Mayor Pro Tem Gordon Quan for the sacrifice that you made to be here today. I know there were legislative matters before the City Council, and I do thank you for your presence.
Might I also say that, Chairman, I know in his absenceI'd like not to mention it, but I know that he brought to the attention of this Committee the Immigrant Workers Freedom Ride. And might I say that I was very proud to welcome those from Houston who have come in on the issue of immigrant justice and immigrant rights, which I think sometimes we violate or at least ignore the fact, again, that I always say often that immigration does not equate to terrorism. And what I would like to see occur is that we spend a lot more of our resources dealing with the crux of the problem, which is, one, making sure that now BICE has more resources, more training, more staff, and that they can be ablethat they would be able to effectively their job, because I do believe that we do have a consensus on the question of the flow of illegal immigration. I think we have a disagreement on what we do with the existing immigrants that are in this country that are paying taxes and working. And how do we translate that into a productive investment in this country?
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I think in the city of Houston we have managed to strike a balance, and that is to understand the balance of usimmigrants who are working in the community with responsibilities that they have, the balance of understanding that most immigrants come to this country to seek better opportunities, and that part of the delay in achieving citizenship is because of the maze of immigration laws.
And so I'm curious. Let me pose questions again to Mayor Pro Tem Quan on this issue. Do you see anythinghaving reviewed this bill and representing the National League of Cities, do you see anywhere in this bill where you would have sufficient funds coming from the Federal Government that would supplement already tight budgets in the local governments?
Mr. QUAN. Thank you for the question, Congresswoman. I don't see that at all. I know it talks about the forfeiturethe asset forfeiture provision which would allow monies to be recouped.
But let me just say that we have approximately 100,000 abandoned lots in Houston, and I know you may say, well, what does that have to do with anything? But it takes over a year and a half before we can get any legal proceedings to go on a forfeiture of those lots just to even put them on our tax roll. The legal proceedings here I think are so complicated as to who owns property, to help make up that.
For instance, I have one coupleand I'm sorry to be long on thisfrom Pakistan. The husband filed for asylum; he was denied. The wife filed; she was granted. While we were trying to process the paperwork to get the wife's asylum shown to the husbandand that's all you need to doimmigration took so long, they deported the husband.
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So whose property then would be foreclosed on? I mean, the wife is legal, the husband is not. It's a community property State. There's a lot of complications in the real world in trying to enact such legislation.
Then the one-third that would come from fees to help supplement the police, as you know, the waiting lines at almost every immigration office or, I guess, CIS now, Citizenship and Immigration Service Office, is years backlogged. To take more funding away from that I think exasperates the problem of people trying to get their paperwork done legally.
As the district attorney talked about, that happy moment of people becoming citizens and going through the process, it's been dragged on longer and longer every year because of inadequate funding to help people attain those dreams.
Ms. JACKSON LEE. Let methank you very much. Let me post a question to Mr.is it Kobach?
Mr. KOBACH. Kobach.
Ms. JACKSON LEE. Kobach. Mr. Kobach, on this litany of requirementsand I think you were making a point as I was listening to your testimony that there should be some revision of the legislation becausedon't bestow authorization because you believe the local authorities have authorization, if you could clarify that point. And then at the same time, could you step into the quagmire of racial profiling, which invariably is going to come if you're talking about a stopping on the street? Because the police officer has to make an immediate assessment as to whether or not the very existence of this driver connotes the criminal activity rather than making the complete arrest and knowing that you have someone who's been engaged in a criminal act.
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So I'm concerned that even though it may be clear in this legislation, there's all kinds of opportunities for this to be, if you will, jaded, faded, and not understood on the local level. And then what do you have?
Let me finish my questioning to suggest that we are much better off if we provide the resources for trained professionals who happen to know better than local officials Federal law, and as well can be a part of the Homeland Security Department, which, if you will, by chain of command, local law enforcement are not. They are our partners, but they're not part of the Department of Homeland Security. There is a conflict with this legislation as is implemented to now put a wide net to include first responders in local communities as being knowledgeable in immigration law.
Mr. KOBACH. Okay. I'll cover those questions in order.
First of all, you asked a question about sectionmy comments on section 101, and section 101 is the affirmation of the inherent arrest authority provision. And as I understand section 101, it isit is intended to recognize the legal landscape as it currently exists. And my only suggestion there was that the Committee avoid the word ''authorize'' because ''authorize'' implies delegated authority and that might imply that there has been a congressional act that has created this authority, which would not correctly describe the legal landscape.
Page 100 PREV PAGE TOP OF DOC Ms. JACKSON LEE. The legal landscape is described how, in your mind?
Mr. KOBACH. Well, no, in the longlongstanding and widespread recognition that State and local police have always had the authority to make immigration arrests, and thenif they wish, and then turn those individuals over to the INS or to ICE.
Ms. JACKSON LEE. But you're reaffirming that the discretion or the authority is there and that local law officials and local communities can make these arrests in certain instances, particularly in civil matters.
Mr. KOBACH. Yes, in civil matters, particularly. I'm justthat was merely a point of clarification of the wording that I think the Committee might want to consider.
But as far as your second question about racial profiling, you know, as a former city councilman myself, I can certainly report that most cities that I am aware of have extensive training in place for racial profiling, and those policies are also in place, and they take it very seriously. And I think the assertion thatyou know, that Federalthat Federal training is inherently superior or that Federal officers are going to be inherently better trained in this very sensitive area, it illustrates the reason why Washington, D.C., is so well loved around the rest of the country.
I mean, I think localState and local officers wear the badge proudly and take their job very seriously. And I think, furthermore, they actually have more experience. The nature of State and local policing is that you have many more law enforcement encounters per day in the case of issuing traffic tickets, or whatever the beat of the officer is, than the average FBI agent has or the average DEA agent has, or even the average ICE agent. And I think that experience of actually implementing the policies of racialagainst racial profiling enables them to better understand this thicket, as you describe it, that they, you know, inevitably get into when interacting with the public.
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As far as, you know, the complexity of the training, I would say one thing here, and that is that immigration law certainly is complex. This is a summarysummary of the INA. It's not thatit's not nearly as thick as a summary of the Tax Code, but it is complex. But the complexities don'tdon't occur primarily at the point of arrest. The complexities occur at the point of adjudication because you have all of these conflicting claims being made where someone, you know, clearly was illegally present, but they have applications for adjustment or they want to make an application for adjustment in the middle of their immigration hearing. And so it's at the adjudicatory stage and it's at the adjustment stage where it really gets complex.
In terms of actually recognizing something that appears to be a violation of immigration law, like people piling out of the back of a semi tractor-trailer in the dead of night, that is not particularly complex, and that is something that can be taught to Federal officers and State and local officers alike in a relatively contracted period of time.
Ms. JACKSON LEE. Mr. Chairman, I know my time is up. Let me just offer one sentence to the gentleman's, the professor's comments, and say that the one missing element that we have in this room or don't have in this room is a legal alien who can express to you, I think more so than what you can offer, as to what racial profiling is all about. I think our Border Patrol agents did an excellent job on commandeering the smugglers, and so it wasn't local law enforcement. It was a combination of such. But I can't imagine that you would suggest, whether you were a city counciland I'm not sure where you were a city councilmember, but maybe not in a large city where you have a diverse population. I would think that we would have severe problems with the burden of law enforcement officers having to discern who is legal and who is not, and that the training gap would be enormous and we'd have serious constitutional problems on those who had the right to be here as citizens, and I don't think you've answered the question.
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And I yield back. Thank you.
Mr. HOSTETTLER. The Chair now recognizes the gentlelady from Pennsylvania, Ms. Hart, for 5 minutes.
Ms. HART. Thank you, Mr. Chairman.
I want to thank the panelists for coming. I think you've identified some of the maybe improvements we could make in the bill which are important and also some practical experience, and I want to start with our localnot my local but a district attorney from Pennsylvania, Mr. Morganelli.
You obviously have had a number of experiences over the last 11 or so years that you've been in office dealing with immigration officials when arrests are made. And it appears from your testimony that the response has been troubling. When you deal with police officers after these incidents, have they had a reaction? Have they stated to you that there's some powerlessness they feel or something that could be better done than it is now?
Mr. MORGANELLI. Well, absolutely, Congresswoman Hart. First of all, I brought with me one of my county detectives, who's involved with this on a daily basis with local police. And the feedback that we get is as followsand this picks on the point that Congresswoman Lee said. You know, this is not a situation where local police are out scouting the streets for, you know, Hispanics or blacks. I mean, racial profiling is a problem that I personally dealt with in Pennsylvania. When I was president of the Pennsylvania DAs Association, I wrote the resolution and advocated for the DAs Association that we advocate a statewide study in Pennsylvania on racial profiling and make sure that we would condemn the practice and outlaw it. In fact, I was the author of that resolution, and I advocated that we do it because I think it's a terrible practice.
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But the misunderstanding is that's not what we're doing. What we're talking about is routine police work. When they stop a vehicle for driving all over the roadways and they go out and they ask for identification of the driver, and the drive says, perhaps not in English, or communicates to the officer, we are notyou know, we are illegal aliens, we have no identification, or we have identification, but, you know, it's a resident alien card, and we check the number and it matches to someone else's number and it's not theirs.
I mean, local police are powerless at that point because what happens is they will contact INS and they'll say what were they doing? Well, they were driving recklessly on Route 22 and almost caused a major fatality. Well, if that's all they're doing, then just let them go.
This has happened numerous times.
Ms. HART. We had an experience in my district.
Mr. MORGANELLI. Yes, you did, and this happened also in the Lehigh Valley. And so in those situations, we don't have INS agents, you know, down the street that we call them out to the scene. I mean, that's just not practical. So if we're going to be serious about the issuesand it seems like there's agreement that we have a serious problem of 9 million illegal aliens in the country and we have to do something about itfrom a practical sense it cannot be accomplished without having local police authority to detain solely on illegal immigration status. And the way it should be in a situation like that is the local police should be able to say, on their admission and their failure to provide any type of identification or fraudulent identification, that they're going to be taken and detained, and then INS will be contacted. And then those decisions are made about what their status is and whether they have issues dealing with their immigration status, and they're made by the Federal Government.
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But at the street level, who else is out on the street other than local and State police that come in contact with these people every day?
Ms. HART. Then the clarifications that we're looking at or variations of those clarifications, would you see them as a burden on local law enforcement?
Mr. MORGANELLI. I don't think so. Now, look, I understand everyone has different opinions, and in perhaps California and in Texas, with all due respect to the mayor, it sounds to me like those policies are basically a surrender, like, you know, we're not going to ask and we don't want to know, we're just going to close our eyes to this issue, and that's fine. If that's the decisions in California and in Texas, I respect that. I respect them greatly. They're great States. But perhaps in Pennsylvania and in other States that's not the viewpoint, that we feel that that issue is important to our localities.
So, you know, I can't speak for every police officer and every chiefs association in this country. You've heard from California police chiefs. Perhaps Pennsylvania police chiefs think differently. I happen to think the police that we deal with would like to have the ability to detain when those situations arise because they feel powerless. I get calls all the time from local police who tell me, you know, last night there were 12 people in a van, they almost caused a major accident, they had no license to drive, they had no ID, they admitted that they were illegal aliens going down to Philadelphia, and we called and they just said just let them go.
So, you know, thishow do we clean up this problem of 9 million people who we don't know their identities, where they came from, whether they have criminal records or not, unless local police can detain so that Federal officials then can make those decisions? And perhaps some of those decisions will be not to deport or maybe tobut we have to have a preliminary detainment.
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Ms. HART. Yes, there's no assumption, I don't think, that every person who is, you know, followed through on is going to end up in jail. I don't have that assumption. I don't expectI don't have that expectation.
Mr. MORGANELLI. Right.
Ms. HART. But I want to thank you. I see my time is up, but thank you to the rest of the panelists. Unfortunately, I have to take off.
Thank you, Mr. Chairman.
Mr. HOSTETTLER. The gentlelady's time has expired.
The Chair now recognizes the gentlelady from California, Ms. Sánchez, for 5 minutes.
Ms. SÁNCHEZ. Thank you. I just want to make a couple of preliminary comments before I ask my question.
Let me give you another case, a case that actually happened in California with local law enforcement officers who believed that they had the authority to start enforcing civil immigration laws. And they seized a group of workers who were not driving, they were working in an orchard picking fruit. And they took them allthey detained them and took them all in under suspicion of being here illegally. In fact, there were a number of citizens that were in that group. They were not committing any crime, and they were detained for hours. And it, itthey are now under investigation and there are lawsuits pending.
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One of the problems that I have specifically with the CLEAR Act is that it gives complete immunity to local law enforcement officials who want to startwant to start enforcing civil immigration law. And, and we've heard from one of the panelists say that, you know, local cops on the beat are not going to racially profile. Well, in a perfect world, that would be the truth. But the reality is we live in an imperfect world, where snap judgments can be made based upon a person's appearance or the manner in which they speak English, or even their lack of English.
And I'm going to give you one other example. My husband is an immigrant to this country. He comes from the U.K. and has blond hair and green eyes. And he pals around with a number of folks that came around the same time he did on work-sponsored visas. Some of those folks are from Latin American countries, who have dark skin and dark hair. And whenever there was a hassle with their work papers or whenever there was investigation when they were all driving in a car, let me tell you that my husband was never required to provide identification. His cohorts were. And they were here in the country working legally under work-based visas.
So I think it's naive to believe that local police officers, who may be well-intentioned, do not sometimes make snap judgments on people based on their appearance or the way that they speak English, or even their lack of English, as there are many legal immigrants in this country who don't speak English well, or speak English with a heavy accent.
So I would want to ask Mr. Edwards and to Mr. Morganelli if you could please respond to these concerns that the CLEAR Act would give State and local law enforcement agents freedom to racially profile under the guise of national security by providing them complete immunity from lawsuits, which has typically been the remedy for folks who have had their civil rights violated based on thesethis kind of profiling.
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Mr. MORGANELLI. If I may go first.
It's an excellent point. First of all, you know, with any type of law enforcement operation, whether they're investigating burglaries or drug raids, we have a major case going on now in Lehigh Valley, where the police are being sued because they were executing a search warrant on a drug investigation. And whether they followed the rules properly or not, you know, that's a civil suite, because a death occurred.
So the immunity part of the bill, I think you may recall in my comments I indicated that perhaps you have to tweak the bill in some respects. And perhaps that's something that, that the Congress will take a look at in terms of tweaking and, and maybe removing.
All I can say is, is that generally speaking we all have to follow the rules and there should be some civil recourse for people's rights who are violated. If someone's rights are violated, generally our system allows for civil lawsuits to be brought against the police or against the Federal Government or the State government or the district attorney or whatever.
So, you know, I don't haveyou know, the issue of immunity I'm not going to comment on because I think, you know, you might want to debate that and perhaps it's something that shouldn't be there, to alleviate your fears. But what I'm saying is, is that racial profiling is something that I've testified in Harrisburg on numerous times, worked closely with the Black Caucus in Pennsylvania to have a study, so I'm sensitive to it.
Page 108 PREV PAGE TOP OF DOC But what I'm saying is, is that this law is helpful to us because, in the situations where we're doing the right thingswe're not racial profilingwhere law enforcement comes across people in routine traffic stops, complaints in neighborhoodswe get a complaint to go to a house and we walk in and there's 40, 50 people sitting in there, and we ask for, you know, IDs, and they tell us, well, we don't have any IDs, we're illegal, we came in the countryAnd you'd be surprised how readily they admit it. The police then say, well, now what do we do? And we need to have some authority to detain.
And I agreelook, I agree with you Congressman Sánchez that if the police violate the rules or if they engage in civil rights violations, you know, there has to be some accountability there. I don't believe in immunity for any group of people if they violate someone's civil rights.
Ms. SÁNCHEZ. Thank you. Mr. Quan, last question, as I'm running out of time. Under the CLEAR Actand I appreciate your testimony here todayauthorized funding for the SCAAP program is increased to a billion dollars, but funding will be terminated if States fail to implement all of the provisions of the CLEAR Act. I just want to ask you, what would be the result of lost SCAAP funding for your State, and how would it impact the ability of the State of Texas to make their communities safe and improve their homeland security if that SCAAP funding is lost?
Mr. QUAN. Ms. Sánchez, as you know, we had a $10 billion shortfall in our State budget this year. We've really had difficulties in making ends meet. I don't know the total amount that we receive in SCAAP funding every year, but certainly it would cripple our abilities to, to do our job. So while the Chairman mentioned this is voluntary, I mean, I don't think it'sI don't see it as voluntary. If we don't do it, we lose that ability. And as you know, we have a large immigrant population in Texas. We have a number of people who are deported every year.
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And if I could just add on Mr. Morganelli's statement regarding the immigration judges being too lenient. The 1996 act took away their ability to be lenient. I mean, they have to deport. They don't get 6 months anymore. The most they can give is 120 days if there's an agreement before they go to trial. So I don't see where people are just being released on the streets. The judges I know, if that happens, the office of the general counsel looks at those judges very carefully to see what's going on.
So we are trying to enforce the immigration laws in cooperation with the Federal authorities. We're not trying not to do that. And so that funding is vital for our abilities to do that.
Ms. SÁNCHEZ. Thank you. I appreciate that. I just would like to make one last questionone last comment before I finish. That is, in California, if somebody is stopped for a traffic violation and they are not able to produce identification, they are taken to the station for fingerprinting, and they do run INS checks. So the power already exists to do those inquiries. And I don't see how that interest is further served by the CLEAR Act, which I, I think does exactly what Mr. Berman stated in his opening opinionattempts to make Federal immigration agents out of local law enforcement on the cheap, where the Government really needs to be putting those money into the BCIS and theThank you.
Mr. HOSTETTLER. The gentlelady's time has expired. The chair now recognizes the gentleman from Arizona, Mr. Flake, for 5 minutes.
Mr. FLAKE. I thank the Chairman. I thank those who have testified. It's been very enlightening. I just want to make a couple of comments. I didn't in the beginningI wanted to hear the testimony first.
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Let me just agree with what has been said, particularly by Congressman Berman. The situation now, it's clear, is untenable. We cannot sustain what's going on now, particularly in a border state like Arizona, with a few hundred miles of border. It is completely untenable now. We cannot continue as we are.
What we've seen over the past decade and a half is a big investment in border security. In fact, we've seen, I think, an increase about sixfold order in enforcement, as far as money. What has been accomplished is what used to be a circular pattern in migration has now turned into a settled pattern. The average stay of a Mexican migrant worker, for example, used to be about 2.2 years and now it's nearly eight. Because it's tough to cross the border. It's more expensive. It's dangerous. We've had 150 people die this year in Arizona already, a record, and we aren't even nearly through the year.
So what I question is whether or not this is simply another band-aid. It was said earlier by Mr. Morganelli that this shows that the Congress is now serious about the problem. I would submit that it shows that we're not. It shows that we're simply trying to do it on the cheap, as has been said before. This shows that we aren't serious about the problem.
Absent a program which creates a legal framework for willing workers to come and work for willing employers, we aren't serious about this at all, because we simply won't get a handle on this problem. It's very clear to those of us living in Arizona. I don't know about the rest of the country. I think Texas certainly feels the waythe same way, and so does California. But absent a program
Page 111 PREV PAGE TOP OF DOC As it is right now, we simply, with a wink and a nod, allow what is going on to go on. In Arizona, while we're talking aboutheregiving local law enforcement the ability to actually detain individuals, in Arizona the problem isn'twell, that's a problem as well, but initially it's a problem with the cities. They're coming saying we have to build shelters and places to house individuals who are here illegally so that they can be picked up to go work. I mean, it'sthat's a long ways removed from the actual problem we're talking about today. But because there is a need for labor and as long as that need is there, people will come. Then the Federal Government has for a long time, just with a wink and a nod, allowed it to go on because we haven't had a legal framework for people to come and work and then return home.
So I guess the question that I would ask, first question, Mr. Meganellior Morganelli, absent such a program, do you think that this is any more than a band-aid to allow individuals at the local level, local law enforcement, to actually detain and enforce the immigration laws?
Mr. MORGANELLI. Well, I don't think it's a band-aid. I think that this is, as we all know, this is a complex problem. It's not a simple problem. It's going to take a combination of things to get this under control. But it's my view that, you know, in certain areas like in Pennsylvania, we come across the illegal aliens on a daily basis, and we have no power to detain them. I mean, that's the position we've taken. Now, today I heard the professor say that all of us have this power anyway, we just haven't exercised it, and maybe we ought to look into that.
But to get back to your point, you know, I'm not here to talk about guest worker programs. That's up to the Congress to decide. I'm looking at this as a crime issue, as an identityidentification of people. We don't know who these people are, we don't know if they have criminal records. Wethey have fraudulent IDs. Social Security numbers from your State I find being used. It's your citizens in Arizona, your Social Security numbers are being used fraudulently in Eastern Pennsylvania. And it's a huge cost. And I, and I recall, Congressman, that you were one of the legislators that wrote to President Bush asking for, I think, $200 million for, to reimburse hospital costs in Arizona.
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So, you know, it's a huge expense. The cost of incarcerating these people who are committing crimes, the hospitalization costs. And you talk about workersyou know, a lot of people we come across aren't even working. They're not working. They are living in a house with maybe 10 other people who are working, and, and, and then trying to collect some benefits, you know, using a false ID trying to get welfare.
Mr. FLAKE. Okay.
Mr. MORGANELLI. We find that a lot. So this is a huge problem. But I don't think it's a band-aid, I think it's just part of the prosolution. We need a little power here. You guys have to do a little border enforcement. We have to have, you know, commitment and political will to deport those who should be deported. And maybe we need a guest worker programI don't know, I'm not an expert in that.
Mr. FLAKE. I'm just about out of time. Or I am, but I'll beg indulgence, just a minute more.
Mr. HOSTETTLER. Without objection.
Mr. FLAKE. You mentioned requests for funding. And that's another problem I have with this. This authorizes a billion dollars. Well, hey, we've been asking for money for years for the SCAAP program, and we get pennies on the dollar, frankly, in Arizona for incarceration and criminal justice coststo say nothing of health care and education, which just are breaking the bank in Arizona. So we desperately, desperately need a broader fix than this. But
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Mr. MORGANELLI. But here's what I'd like to ask. I don't understand how granting the amnesty createsmakes that situation better. The hospitalization issues are still going to be there.
Mr. FLAKE. Nor do I. Nor do I. And that's why I'm not proposing granting amnesty.
Mr. MORGANELLI. All right.
Mr. FLAKE. But, Mr. Quan, I appreciated the testimony. And did youlet me just ask you that question, if you can answer in about 20 seconds. Absent a formal process to allow willing workers to come and work for willing employers, do you see this as anything more than a band-aid?
Mr. QUAN. I agree. I only see it as a bandage, Congressman Flake. And I think the fact that pointed out, that they're staying longer, you know, we have in the 1996 act a provision that if you leave the country after you've been here, that then you have a three- to 10-year bar and you have Federal penalties against youthat exasperate the situation. So they're trapped here somewhat.
I don't think that they necessarily want to stay forever. I think if we had a viable programSenator Cornyn of Texas has introduced a bill; Congressman DeLay has supported a guest worker program. I think that's what we need to be looking at: How do we work regulating this flow to get people back to their homes countries? They can work here to meet our needs, and then go back to where they came from.
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Mr. FLAKE. Thank you. And I appreciate the indulgence of the chair.
Mr. HOSTETTLER. The gentleman's time has expired. The chair now recognizes the gentleman from California, Mr. Berman, for 5 minutes. In order of appearance, yes.
Mr. BERMAN. You think you're higher in seniority?
Ms. LOFGREN. No.
Mr. BERMAN. I'd like you to educate me a little bit because sometimes when I hear things, I'm not sure I quite understand the situation. Mr. Kobach, you do have a lot of experience in the law. I take it the civil-criminal distinction is important because it's not a Federal crime to be in the country illegally. It's subject to the penalty of removal, of deportation, but not imprisonment. Is that an oversimplified conclusion?
Mr. KOBACH. Well, actually, it's kind of interesting. It's a patchwork quilt, if you will, the Immigration and Nationality Act. Some of the violations of the Act are technically civil violations, some are criminal. So if you enter without inspectionthat is, you sneak across the border without going through a port of entrythat's a criminal violation. If you overstay your visa, which is probably the second most prominent way that individuals end up here illegally, that's a civil violation. And there are all kinds of distinctions.
Page 115 PREV PAGE TOP OF DOC Mr. BERMAN. But by and large, weat the Federal level, we don't usually charge, indict people for sneaking across the border illegally? We usually
Mr. KOBACH. We usually
Mr. BERMAN. We have two options.
Mr. KOBACH. Yeah, you can remove or you can seek to criminally charge. What you typically see is, because, you know, the resources of the U.S. attorneys are so stretched in places like Arizona, in fact
Mr. BERMAN. Ah.
Mr. KOBACH [continuing]. That you probably have the, only the actual peoplethe ringleaders of the smuggling operations are the ones who are charged with criminal violations of the INA more often than the people who are actually smuggled in.
Mr. BERMAN. But the overstay of a visa is a civil
Mr. KOBACH. Yes, under current law.
Mr. BERMAN. If local law enforcement officers think that the executives of a company in their jurisdiction are engaging in violations of Federal antitrust law, should they have the capacity to arrest them and detain them for transfer to Federal officials?
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Mr. KOBACH. Well, I mean, if
Mr. BERMAN. I mean, I'm just trying
Mr. KOBACH. If the
Mr. BERMAN. Essentially I'm trying to understand.
Mr. KOBACH. Well, it depends, again, if youOne of the reasons why I think the distinction that is important is civil violations that render someone deportable. So if you're talking about a violation of antitrust law that is merely results in a fine, then the appropriate
Mr. BERMAN. Yeah, civil penalty.
Mr. KOBACH. Yeah, then the appropriate agents to be involved would not necessarily be local police because local police are out there trying to find people who are likeyou know, who are escaping a likely prison sentence or a likely deportation, where you actually have to grab the person and remove them.
Mr. BERMAN. As opposed to escaping a treble damages action for
Mr. KOBACH. Frankly, I have actually looked at that exact issue you're raising. It's a great question, because thereit's an interesting hypothetical. But there aren't anythere's not case law out there. It would be an interesting question. If local police had some angle where they could provide useful assistance, but we haven't seen it yet.
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Mr. BERMAN. I guess I would label this that they're smart, but they're lazy. The wisdom of WashingtonI mean, this mindset in Washington, that we know best, has to be busted up. We should allow the people who are really smart, who have good training on their own, the people down there who see the problems day-to-day, they should have the ability to do this. That is, to detain people solely because they believe that they're in violation ofthey're here not in status, they're illegal aliens.
So we should allow that to happen, so they're smart enough to do the job, but they're so lazy they don't want to do the job, and therefore we have to leverage penalties to force them to do the job they're smart enough to do but don't want to do. There's an element of that in this approach. It's not simply an authorization to do something. That, which by the way, you've already said that your reading of the law and the cases doesn't need a CLEAR Act because they have the implied inherent power to pick up and detain based on that; but that we now have to create a motivation for them to do something that they are talented enough to do but not willing to do, by leveraging money away from them to get them to do. Does that strike you as a strange way of approaching it?
Mr. KOBACH. Not necessarily. And I would justwhen you described what they might do, I mean, it's not that they would just have a suspicion and then make an arrest. They would still be under the same Fourth Amendment constraints that guide any arrest.
Mr. BERMAN. Let's stop on that.
Mr. KOBACH. I'm only, like, one-tenth of the way through the answer.
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Mr. BERMAN. I know, but I see the yellow light.
I wouldratherif we had another round, I would like to hear your full answer to that. But something more interesting is, describe to me the hypothetical case where a police officer has probable cause to believe that a person is out of status and should be allowed and in fact required, because of the way this is all structured, to pick that person up and detain him and apparently, under the terms of this law, be responsible for removing hima little local deportation operation, I guess. That hypothetical. Because I know it isn't racial profiling, I know it isn't accent, I know it isn't appearance. Tell me what it is.
Mr. KOBACH. Okay. I'd like to give two parts to this answer all at once, if I can. And the first one is, the first example is an in flagrante violation, a case where you
Mr. BERMAN. A what?
Mr. KOBACH. In flagrante violation. The officer witnesses the act being violated. That is to say, he sees someone comingyou know, on a highway in the dark of night sees people piling out of the back ofyou know, clearly dangerous situationthe back of an 18-wheeler. And thisthose are real examples. I'm not just making this all up.
Mr. BERMAN. I know. I
Mr. KOBACH. We read about it in the paper. A second example, and I think this is actually how the authority is most likely to work in reality and in the long run, is that it's just another tool that the officer has as he's makingas he's investigating. And this is also not a hypothetical. We can actually read about this one in case law.
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That is, suppose a local officer is investigating a drug ring. And it is often the fact that cocaine trafficking and marijuana trafficking is coincident with movement across borders. And in the process of doing so, he learns that several members of the ring, through an informant, are here illegally and are undocumented. Now, he's building a case against the ring. He realizes that he can get three members out by using the tool of making the immigration arrest and then calling forand then detaining briefly and then calling Federal authorities in. The others, he can build the case for prosecution.
It's just one of many tools in the box that he will use in his day-to-day law enforcement. The notion that State and local police officers will just leave the enforcement of garden variety crimes aside and become full-time immigration officers I don't think is very realistic. Indeed, I'd say it's implausible. And it certainly goes against the other counter-argument I'm hearing, that State and local police don't have the money to do this. The idea that they would suddenly say we don't have the money, but guess what, we're going to put everything else aside and we're going to do this full-time, I just don't think
Mr. BERMAN. In order not to lose the money.
Mr. KOBACH. Well, that's the State, which isthe State policy makers which are facing that, the question of
Mr. BERMAN. And cities, counties, and police departments.
Mr. KOBACH. No, Ibut it's the individual discretion of the police officer. And nowhere does this act say that the police officer has to give up the kind of discretion that he has when he's trying to decide which crimes or which violations are worth following up on.
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Mr. BERMAN. Under the CLEAR Act, could a police department decide this is not our priority we decide as a department not to pick up people solely on the basis of suspicions or probable cause orBy the way, whyI'm not sure why it's within the constitutional framework. What in here says it has to be probable cause? Since it's not a crime, it's not constitutionally driven that it's probable cause. Why can't it be a suspicion?
Mr. KOBACH. It's because you're detaining, it's a notion of detention, and probable cause would apply to any detention.
Mr. HOSTETTLER. The gentleman's time has expired. Does the gentleman wish
Mr. BERMAN. Ten additional minutes? However you want to do it, Mr. Chairman.
Mr. HOSTETTLER. We could do another round of questions.
Mr. BERMAN. I think we should have everybody go with
Mr. HOSTETTLER. All right. The gentleman's time has expired. The chair now recognizes the gentlelady from California, Ms. Lofgren, for 5 minutes.
Ms. LOFGREN. Thank you, Mr. Chairman. And I won't use all of my 5 minutes, and I'll give the rest to Howard to finish his questions.
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I thinkyou know, as I listened to this discussion here today, I was pondering my experience as a local government official. Actually, I spent longer on the Board of Supervisors of Santa Clara County than I have in Congress, 14 years. And we were responsible for funding the jail and the DA's office and everything. And one of the things that we grew not to like very much were unfunded mandates. And when I got elected to Congress, I joined with a bipartisan coalition to try to prevent unfunded mandates. And now we've got a little point of order system that completely doesn't work.
And looking at what this bill is now, it justit makes a bad situation worse. One of the other things I've learned in my years in Congress, not that long, is that there's a big difference between an authorization and appropriation. And right now, we are looking at local law enforcement agencies across the United States that are bearing the financial burdenas the States are too, but my heart goes out to the localitiesbearing the burden of the failure of the Federal Government to adequately secure the borders. And the SCAAP funding, actually, was meant to compensate. It never did come all the way to compensation, but it helped a little bit.
And now we have this proposal that if local law enforcement don't take on additional costsan additional mandate, yes, they're going to lose even the little bit of funding that we gave under SCAAP. And to me, I think thatthat's not what we're supposed to be doing. So I just want to make that observation.
Secondarily, I want to talkI had the same question Mr. Berman did, but I think he certainly developed it well enough. I mean, there are a lot of things that are civil offenses, Federal civil offenses, and I think that the theory is that we can authorize local police to arrest people for civil offenses under the Federal law. That's a veryI think it's a very bizarre theory and would lead to results that we would deeply regret as a society.
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But I'll just close with a question that I have. And it really is a nerdy question, but I once taught immigration law, soand the Immigration Service and their lack of technology just drives me crazy. Section 104 of the act, I believe, requires that information about unlawful status be entered into the NCIC. Now, when the NCIC was first developed, I was on the staff of my predecessor in Congress, Don Edwards. And there was a lot of thought and care given to make sure that that database had some accountability, that police departments could actually rely on what was there.
And I'm just wondering. Mr. Quan, you know, as an immigration lawyer, that the change of address formsI mean, if you don't fill out a change of address form, you've violated your immigration status.
Mr. QUAN. Exactly. You have to do that within 10 days of moving. And we mail it to an address in Washington. We don't know if it ever makes the system.
Ms. LOFGREN. I'll tell you, it doesn't.
Mr. QUAN. Oh.
Ms. LOFGREN. It's in big boxes. We have warehouses full of these little paper forms that are never entered into the system. And there's no money in this bill to enter them into the system. Plus, and I've heard this fromI guess I am going to take my whole minute, Mr. Bermanbut the people who move two and three times a month, and this does happen for people who are low-income
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Mr. QUAN. Yes.
Ms. LOFGREN [continuing]. You know, they're sending forms constantly. And they're just piling up. And every one of those things would have to be entered into the NCIC. Plus a lot of it is unreliable, as you know, because if you move two or three times in a low-income community, you're never going to catch up and the data's always going to be wrong.
And so I'm just sort of wondering what that does to the integrity of the NCIC system in toto andwhen we spent so much time that law enforcement could actually rely on it.
Mr. QUAN. I'm very concerned about it, too. As a matter of fact, as a person becomes lawful or has a work permit, like Ms. Sánchez talked about some of her friendsto get that into the system so they can get a Social Security number so they can show that they are legal and they can do that. It takes so long, and they're waiting around for weeks, maybe months, because the system is so slow at entering that data. So it's not very reliable. If a police officer goes to the data, that person may be a permanent resident by the time they apprehend the person, but it wouldn't show that.
Ms. LOFGREN. Well, I'm going to stop you and give the remainder of my few moments to Mr. Berman. I know this was set between 4 and 6:00, and it's now getting on to 7 and we've all made plans. So I'll just yield back my time.
Mr. HOSTETTLER. The gentlelady's time has expired. And I want to thank the mayor pro tem of Houston for his presence here. The Committee understands that he has a flight to make, and we don't want to make you late for that.
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Mr. QUAN. Thank you, Mr. Chairman, and I will get that information that you've requested. I'll follow up with the Committee on that.
Ms. JACKSON LEE. Might I just thank Mayor Pro Tem Quan as well for your presence here and giving a very insightful presentation on the burden that cities would feel if monies were, if you will, eliminated on the basis of a city not obligating itself to the actions under the CLEAR Act if passed by this Congress. And thank you for your testimony.
Mr. QUAN. Thank you.
Mr. NORWOOD. Mr. Chairman.
Mr. HOSTETTLER. Yes?
Mr. NORWOOD. If Mr. Quan is going to leave, and I'm grateful for just being able to sit here, I have a litany of questions that I wanted to ask him. And I wonder, might you instruct the witness to answer them in writing. Since you don't have time
Mr. QUAN. Yes. Or would you like to submit them
Mr. NORWOOD. Yes, the questions will be submitted for the record.
Page 125 PREV PAGE TOP OF DOC Mr. QUAN. I'll be glad to answer them in writing, yes.
Mr. NORWOOD. Very good. Thank you once again, Mayor.
Mr. QUAN. Thank you.
Mr. HOSTETTLER. And the chair now recognizes the gentleman from Georgia, Mr. Norwood, for 5 minutes.
Mr. NORWOOD. I thank you, Mr. Chairman. Mr. Quan, you sure you can't stay for 10 more minutes?
I'm very grateful to be part of the questioning that we have here. I'm very grateful to you for having this hearing. And like so many Members of this Subcommittee, they know we have a disaster on our hands in this country.
Mr. Morganelli, it will help you to know that in the last 2 days, four separate committees have had four separate hearings regarding our immigration problems, the invasion of illegal immigrants into this country, what it's costing this country. So there is a great deal of concern in this Congress that something has to be done.
JustMr. Chairman, I have a big, lengthy statement for the record, if I may.
Mr. HOSTETTLER. Without objection.
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[The prepared statement of Mr. Norwood follows in the Appendix]
Mr. NORWOOD. But I think this Committee ought to know that there are people who really believe in what we're doing here besides, to the contrary, the California chiefs of police. The National Sheriffs' Association, Mr. Chairman, Law Enforcement Alliance of America, Southern States Police Benevolent Association, Friends of Immigration for Law Enforcementthere are a lot of people.
There are a lot of sheriffs associations that agree with you, Mr. Morganelli, and I think if you would actually dig deep, anybody, just a little bit, the concerns basically are money. That's the bottom line. The fear is that, well, gosh, what if my state or my city, like Houston, doesn't agree to help the rest of America pick up criminal illegal aliens and potential terrorists, then we don't get our SCAAP funding. That's what they're worried about.
This has been called a number of times an unfunded mandate. Well, I don't know, up here you get confused about money, but I think two and a half billion dollars is a little bit of funding to start with. Mr. Flake mentioned a billion. This is two and a half billion in this bill, a lot more than they have in SCAAP funding now.
Now, is it a mandate? No, it's not a mandate. Maybe it would have been better had we had it to be a mandate, then the chiefs of police in California wouldn't have to worry about losing their SCAAP funding; they would simply have had a mandate. That isn't my style; that isn't how I like to do things. If a section of this country wishes to become a safe harbor for criminal illegal aliens, who am I to say they shouldn't? Have at it. Do your thing. But there's a lot of this country who wants to deal with this very, very serious problem.
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I wanted to point out a couple of things that were stated. I wanted to know, actually, if the Houston Police Department needed training in racial profiling. I'll bet the answer to that is no. I bet they have plenty of racial profile training now. Because racial profiling can occur in things other than illegal aliens. And I'll bet you have training in racial profiling, for example, in Pennsylvania, as do most states that I'm aware of around the country.
So it isn't like, oh, this is going to fail because all of these law enforcement agents, the 600,000 that we're askingnot to take over immigration in this country, simply help us with immigration in this country.
The other thing that needs to be pointed out, for those who want to read the bill, that immunity problem, the bill says very clearly, Notwithstanding any other provision of law. What this bill does do is it makes you immune from being sued because you've arrested an illegal alien, the same as a police officer has immunity from arresting a bank robber but notwithstanding any other provision of the law. So that's not necessarily a very good reason, I think, to not support this bill.
I want to point out to those who want to listen what this bill really is all about. Now, Mr. Flake is correct; there are other problems. Our legal immigration laws are in shambles. We're not dealing with that here. Maybe he wants to deal with that, or some other Member of Congress would deal just with the legal immigration problem. This isn't about the border. We haven't been successful on the border. We've got 10,000 Border Patrol agents down there; we've only allowed in somewhere between 8 and 12 million illegal aliens. I call that absolute failure. It's not working. Maybe somebody on this Committee wants to deal with that.
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What we're dealing with and what we're trying to deal with is that 400,000 illegal aliens that have been in custody of the United States, let go, they were told to go home and come back in 2 weeks and we'll deport you, and we don't know where they are. Now, I'm interested in that group, and that's what we're trying to ask the local police to help us with.
Simply to ignore the fact that we have 80,000 violent criminalswe know their names. Now, we may not know their address, but we know their names. We need to do something about that. The fact that 3,700 of those come from al Qaeda-friendly countries. We need to do something about that. But if you think 2,000 Federal agents in Washington, D.C. can solve this problem, you're wrong. Neither can 200,000 Federal agents. It's the wrong people to help with the problem. We need the local sheriff. We need the local State patrols who are working the highways and working the streets.
And I want to make it very clear about this. The bill says, straight as you want to, to enforce
Ms. JACKSON LEE. I'm here, Mr. Norwood.
Mr. NORWOOD. There you go.
to enforce Federal immigration laws in the course of carrying out the officer's law enforcement duties. That is not the same thing as Mr. Quan would say, is that, oh, this bill is going to cause us to round up and detain all those people suspected of civil immigration. This is not what this bill does in
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Ms. JACKSON LEE. Will the gentleman yield?
Mr. NORWOOD. No, ma'am. You had my time and yours. I need a few minutes here.
That's not what this bill does. This bill simply says ''in the course of your normal duty.'' If you get somebody who runs a red light and you need to ask questions about immigration, you should do that. You should do that to help America. Had that been done with some of the people that were involved in 9/11, who were stopped for a traffic violation, if we had just taken time to ask some of the questions that I hear in Houston are so difficult to ask, we might have had some prevention there.
What this is about, again, is 400,000 deportable illegal aliens, of which 80,000 are criminal, violent criminals. I've got a pedophile loose in my state right now simply because the INS would not do anything. We're asking help from local law enforcement. We are funding it at two and a half billion. Now, that may not be enough. And if Mr. Quan were here I would say this to him: I do not believe in unfunded Federal mandates. This is an authorization bill. If this bill is not funded through appropriations, it shouldn't take place. I don't think we ought to do that. And I'm going to make sure before we get to the floor it says that. We're going to either do this and fund it and try to get serious about illegal immigration in this country, or we're not. And we're going to find out.
Who believes in the rule of law? Who really believes in that? Who believes that when we pass a law in this country that we should enforce it? The world laughs at our immigration law. We need to do something about that. If we do it a little bit, it will discourage so many people from coming across our borders. My concern is who the heck are they? We don't know. How many of them of that 3,700 brought a dirty bomb with them? One? Was it 1 percent? Was it 10 percent? We don't know. We don't know where they are. Are we serious about homeland security? This is part of homeland security. It is illegal aliens who come into this country to cause terrorism.
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You've got to ask the question. You can do it in the correct way. We're not suggesting you stop a truckload of people who may look to you like they're illegal. We're saying ''in the process of your normal duties.'' If they're driving down the road obviously drunk, that particular officer was going to do that anyway, stop that person. That is not going to cost of City of Houston one more penny to stop a drunk driver. It's simply not. It's not going to cost Houston any more to ask a question or two.
And what we're saying in the bill is Federal Government, get on the stick. We're trying to tell INS and BICE they've got to do their job too. We're putting funding in it for them to do that too. If we're going to be a nation of laws, Mr. Chairman, we have to enforce the laws. If you don't believe we ought to enforce our laws, stand up and say you believe we ought to repeal them, because we don't want to hurt anybody's feelings in making them a criminal.
Mr. HOSTETTLER. The gentleman's time has expired.
Mr. NORWOOD. I know. I'm sorry. Thank you, Mr. Chairman for the opportunity.
Ms. JACKSON LEE. Mr. Chairman, I ask unanimous consent to go out of order, my round. I can submit things in the record and come back.
Mr. HOSTETTLER. Without objection, yes.
Ms. JACKSON LEE. I am the Member remaining here to thank the Chairman for his indulgence of all of us and to acknowledge the presence of two guests here, and delighted to have them as guests in this Committee, and certainly would not want to interrupt Mr. Norwood. I simply wanted to counter and engage him. But let me, now that he has finished, offer some thoughts here that I think are very important. Unfortunately Mr. Quan did have to return back for responsibilities in Houston.
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But let me just give a few points. First of all, there were 19 terrorists. Only three of them were over-stays. And if you had questioned those individuals on 9/10, it is likely that you could not have identified them as terrorists because the bulk of them were here legally, with legal visas.
What we need to secure the homeland is better intelligence. What I would say to my good friend from Georgia is that if he wants to engage in this kind of effort for his police department, that he should do it, or the State of Georgia should do it, and not force these laws on the United States of America.
Why? Mr. Morganelli, the example that you used about the police calling the INS with a group of individuals that they had stopped, and the INS saying thatlet them go, that's not a fault or an issue to be solved by CLEAR Act. That's an issue on what I've been sayingtraining resources that we need and expanded INS officers and INS officers that work cooperatively with police departments. That's what is needed, not the fact that we need a CLEAR Act. Because your officers did what they were supposed to do.
It is outrageous for anyone to suggest that if illegal immigrants are engaged in criminal activity that police stand by and look askance and just stand there and say I can't do anything. For those of you who have never experienced racial profiling, please let me correct anyone to think. I am a strong supporter, as a former judge, of law enforcement officers. We work together. But they will tell you that they welcome, they welcome training and oversight as it relates to racial profiling. It is not the departments. It's not every officer. But it happens.
Page 132 PREV PAGE TOP OF DOC And you can be assured if you put in place the CLEAR Act, you're going to have a mountain of abuses. Not because I don't believe that our law enforcement officers from sheriffs to constables to police officers have the greatest of integrity. But as we well know, as we well know, in all of our lot, there are those who abuse the system. And so the CLEAR Act takes, my good friend, two and a half billion dollars. And I'm glad he says authorize it. We don't have two and a half billion dollarsmaybe if we didn't have the war in Iraq and $87 billion was sitting on this table right now. We realistically don't have two and a half billion dollars.
And my good friend Mr. Flake has got a bill, because he's suffering in Arizona and others are suffering in California and Texas, we've got issues to deal with by providing the kind of professional training and responsibility for our Border Patrol agents that I would venture to say is far more important than burdening local law enforcement on things that you all in Pennsylvania and Georgiaand I don't want to get this one State pitting against anotherbut can do. But what you're doing is you're forcing the Federal Government to burden local law enforcement and then fund it, two and a half billion dollars in this fiscal year, 2004, and $6 billion in 2006, and $12 billion, and going up.
You've got individuals who have come to this country for a simple reason of access to legalization. I hope that 1 day this Congress will find a way to solve those who are undocumented, that are here, by giving them access to legalization. Document them; those who don't meet the test are readily not to be viewed as those who will stay in this country.
I, too, want to fight against the siege that we think we might be under. And so I just simply say to you that your solutions are not the answers. Frankly, legal status is complicated, the documents are complicated, and therefore it will be questionable whether they would know how to do this.
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To the professor, let me say this, that I appreciate very much the intellect that you brought to this. But I take issue with your New York Post editorial, where you indicate that we do not dignify the freedom riders of the 1960's with those who have come this time. Since I happen to know personally many of the freedom riders of the 1960's movement, I would venture to say to you that they would empathize with the immigrant freedom riders, some of whom are legal status individuals who come simply for a way of accessing justice. And I would caution you on suggesting that their ride denigrates the ride of the 1960's.
And that's why I would be concerned with this kind of legislation, Mr. Chairman. Frankly, I think we can authorize this all day long. This is pie in the sky. We don't have the money. And it is going to be an enormous burden on these cities. And I'm going to join my local governments all over the nation fighting against this excessive burden.
Because the real crux of the issuebecause I'm not abandoning securing the homelandis providing the resources for the homeland security and the INS offices, so that when they got a call from those law enforcement officers in Pennsylvania, they didn't say I can't be bothered; they got right there and dealt with the issue and knew how to deal with it.
And then separating out this whole idea that all of us are fighting terrorists by having law enforcement officers pick up simple immigrants who are here, maybe illegallymaybe illegally, I'll acknowledge thatbut are not here trying to do us any harm. And you go back and look at your facts on 9/11 and notthis CLEAR Act couldn't have done anything about it. I'm against over-stays. The INS needs to deal with thatnow the BCIS. Not this effort that you've got here that's not going to do anything.
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Mr. Chairman, as I yield, let me provide informationI would ask unanimous consent to put in the record opposition by these groups: The American Civil Liberties Union, that talks about the public safety issues and civil liberties violation. I ask unanimous consent to put that into the record. A statement by Leslie Orloff, director, Immigrant Women Program, NOW Legal Defense and Education, specifically talks about the fact that you lose the domestic violence issue, where these women are afraid to even come forward. I don't know how many of the witnesses have talked to smuggled-in individuals who have been abused, who we need to be able to have law enforcement breaking that smuggling ring and we can't do it if we don't engage the immigrants.
I'd like to put into the record, by MALDEF, a testimony that they would argue against this in terms of the fact that racial profiling and also the fact that safety issues are involved.
Do I have any more? One more.
And I have another one, Mr. Chairman, if you would. This was put in bythis is pages and pages from different States, national organizations, the American Anti-Discrimination, American Immigration Lawyers, Anti-Defamation League, Arab American Institutethis goes on and on. Catholic Legal Immigration Network, Hebrew Immigrant Aid Society, Leadership Conference on Civil Rights, National Coalition Against Domestic Violence. We have from Alabama, Arizona, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, and just almost 50 States where there are organizations that are opposing this legislation.
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I ask unanimous consent, Mr. Chairman, to put these in. And I thank the witnesses. I know this is not the end, but I do have to depart. And I do thank my guests, Mr. Deal and Mr. Norwood, for making this a very lively hearing this afternoon.
Mr. HOSTETTLER. Without objection.
Ms. JACKSON LEE. Thank you.
[The information follows in the Appendix]
Mr. HOSTETTLER. The gentlelady's time has expired. The chair now recognizes the gentleman from Georgia, Mr. Deal, for 5 minutes.
Mr. DEAL. Thank you, Mr. Chairman. Thank you for your allowance of Mr. Norwood and I to appear today. And thanks to the Members of the Committee as well.
I think several things have become very clear. One is thatand that's no pun intendedis that there is certainly a difference of opinion as to whether or not we should enforce immigration laws or we should ignore it. And that is really at the heart of this debate. It springs up in many fashions.
One thing that has occurred to me, however, in listening to the discussions here is the descriptions that have been used to talk about the provisions of the act. On the one hand, Mr. Flake calls it a band-aid, and on the other, Mr. Quan says it's too much. It's either one or the other, or maybe it's somewhere mixed in-between.
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But the issue of whether or not it's an unfunded mandate is an interesting one. My local governments back home, whether it be the school board that's impacted severely by the effects of illegal immigration, where it is the local hospital that is impacted, whether it be every social agency and especially the law enforcement officers, where over half of the felonies and those incarcerated in my local jail are now illegally in this country to begin with, they would say that the largest unfunded mandate that we have now is the fact that the Federal Government is not enforcing its immigration laws to begin with.
Now, the comment that I would like to ask a question about is that if Arizona, California, and Texasand other States perhaps, in-betweenhave no interest in this legislation and regard the way it is worded as punitive, in that if they do not do certain things they are subject to losing certain funds, what if we flipped the coin and simply said, on the other hand, okay, if you don't want to do that, you don't have to; we're not going to have any sanctions against you. What if we reworded this act to say, This act authorizes those jurisdictions that are willing to cooperate and who will assist Federal immigration authorities to receive additional funds to compensate for the costs of their services. That way, you have a right to choose.
Now, I daresay if we had legislation like that in place, Mr. Norwood's district and my district would probably take advantage of that. And I daresay that those jurisdictions in the State of Georgia that did not, their citizens would rise up in protest and demand to know why they didn't. If it's only the State of Georgia that did it, I think it would then soon be the Alabama citizens asking why aren't you participating?
Page 137 PREV PAGE TOP OF DOC Is there any merit to considering that approach?
Mr. KOBACH. I think so. There certainly is. I mean, part of the problem here is that it's been characterized as an unfunded mandate when there reallyit isn't mandatory in the current wording, and I think that wording would make it even more clear that it's not mandatory. And indeed, you know, SCAAP funds are funds that are tied to immigration enforcement, and this isI think the Congress clarifying its intent as to what its priorities are in how States should assist in immigration enforcement.
And that's what, you know, SCAAP contemplates too, that kind of assistance. The notion that this is something new is clearly not the case. 287(g) of the Immigration and Nationality Act creates a much broader authority to do more than just, you know, arrest a person and then transfer them to Federal authority, but to do full enforcement in terms of assembling a case and operating as, effectively, deputy INS agents. And Florida has seen amazing success with that.
I mean, clearly, this assistance is something that Congress has invited and certainly would have the right to define.
Mr. EDWARDS. If I might add, as I read the authorization provisions at the beginning of the bill, what we have is basically justand I do take Kris Kobach's point, to heart, that stating in there's authorization when it already exists under the Constitution may add to the confusion, and you might therefore look at saying it as Kris worded it.
Page 138 PREV PAGE TOP OF DOC But at the second part, the section that has a State function there, as I read it, there's full federalism respected. There's the opportunity for States to either act or not act at enacting a statute, a State statute that says clearly our law enforcement officers are authorized under our State laws to enforce immigrationFederal immigration laws to the extent authorized by the Federal Government. That's not a mandate. It gives them the opportunity to do that and encouragement to do that.
There is a carrot and stick approach in the bill, and that may be viewed by some as a stick because that second requirement of the States is not really a requirement, it's an encouragement. It says, You should do this; the reason we think this should be done is because we condition receipt of SCAAP funds on that.
However, SCAAP is only this past fiscal year that expired yesterday was only $250 million. And Arizona experiences something like 300-plus million-dollar costs just for housing the illegal aliens that it has. And that's not to mention all the other criminal justice and processing and transportation costs and stuff.
So, you know, it's not really covering any costs, so it's really a fairly low amount for a penalty there that you're talking about. It's not much of a stick, and it's certainly not an unfunded Federal mandate because you would still have the opportunity to act or not act as a State or locality.
Mr. MORGANELLI. With respect to this issue, what really gets me mad, really, is when I read, for example, in 2001, five StatesArizona, 23 million; California, 225 million; Texas, $45 million; Florida, 28 million; New York CityNew York, 94 million of SCAAP funds. That was 2001. And you know what? In many of those States we have sanctuary policies, where thatit's costing those States tons of dollars and, as he just pointed out, not even reimbursing the total costs.
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But you know what? That's costing Pennsylvania taxpayers and Georgia taxpayers and, you know, everywhere around the country that's shared. And yet we have these States and the mayor telling us we're notwe're not going to ask anyone if they're illegal or not. And the fact of the matter is these are all who have committed serious crimes.
Now, we've got to get a handle on this. And the only way to do so is to have the local law enforcement be able to identify and detain, in the course of their job, as Congressman Norwood said, not racial profiling, not goingbut in the course of their jobs. It will help solve the problem.
It is not the total answer; we all know that. But when I see these States taking my tax dollars that I pay, in that quantity, and at the same time telling me, well, we're not asking, we're closing our eyes, we're not allowed to ask, the police aren't allowed to ask, and the police are going to be ordered not toit's an outrage.
And quite frankly, there areI think there was a civil action in New York, or perhaps contemplated, where the police weren't allowed to ask and serious crimes were committed by those same people who were released. There are liability issues that these cities and towns who have these sanctuary policies are going to start to experience if this continues.
Mr. EDWARDS. Mr. Chairman, if I may just add one thought, if you'll indulge?
Congress every day conditions the receipt of Federal funds. I mean, you all the time say you have to do this in order to receive this money. So why is this any different? And why is this, even at such a very small amount of money comparatively, relatively speaking, even an issue?
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And another thought, since the Chairman is allowing me to filibuster here
Mr. HOSTETTLER. Doing that all day.
Mr. EDWARDS. The opposition was quite generated here. So I would say Mr. Norwood has crafted a pretty effective bill that's a live threat to opponents of it, it seems, because they are pulling out, apparently, all the stops to get all the groups that they can possibly get to sign a letter and to sign this or that, to petition against the bill.
However, there's a Roper pollI'll just cite one poll or draw attention to it from my full testimonya Roper poll from this past spring, and 85 percentand something like two-thirds strongly agreedthat localities and local police and State police and so forth should be required to tell the Federal Government when they have an illegal in custody.
So why is this controversial except in some little bowl of liberalism? I don't understand where controversy comes out of this.
Mr. DEAL. Mr. Chairman, could I make one final statement? This has been an interesting day for me on the issue of immigration. Earlier today, Ms. Sánchez and I, on the Government Reform Committee, had a hearing on the issue of extradition and the problems we're facing there. And we all wring our hands and commiserate with the widow whose husband, an officer in San Mateo, was literally executed by an illegal alien who had three times been deported, and then killed her husband and fled back to Mexico. And the problem of now you cannot really extradite these back because of the Supreme Court decision of Mexico that the only way the State of California, because of the way their murder statutes are worded, would be able to get him back would be to assure Mexico first of all, no capital punishment; now they've gone so far as to say, even life imprisonment is not an acceptable basis for extraditing back.
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So the only way that, in that case, that the district attorneys there could get that individual back would be to reduce that to a manslaughter charge in order to get him back. The magnitude of this problem is horrendous. And I quite frankly think it is time that we stop waiting until those bad cases happen and we say, oh, that's just such a terrible problem. It's time to start being able to do something about it now.
And I thank the Chairman and his indulgence for allowing me to be here today. Thank you.
Mr. HOSTETTLER. The gentleman's time has expired. The chair will now recognize himself for a second round of questions. And I appreciate the indulgence of the panel. I will make my questions very succinct to you.
First of all, Professor Kobach, Mr. Quan states in his testimony the CLEAR Act would constitute an unfunded mandate to the States. How would you respond to that?
Mr. KOBACH. Two ways. First, that if you look at the bill, off the top it's not unfunded. Clearly, it would dramatically increase the funds that exist. And secondly, it's not mandatory, so it's not a mandate. I think he's wrong on both accounts. But secondly, you have to look beyond just what happens in this act and the provision of money there. You have to look at the costs of illegal immigrationand this is a point that's been made alreadyand the States are burying these costs.
One of the greatest costs of illegal immigration is education. After the Supreme Court rendered its decision in Plyler v. Doe, it became clear that the States were obliged to provide education to illegal aliens here in this country of primary and secondary school age. That is a huge expense, and many States are, you know, bursting at the seams with schools that are poorly funded. And that only compounds the problem.
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Medical expenses have also been mentioned. There are known cases of illegal aliens who have crossed into the United States specifically to receive an operation, a very costly operation, knowing that full wellknowing full well that when they go to the hospital they cannot be turned away.
There's other social services, and there's also the cost of law enforcement, primarily Federal Government law enforcement at this point, just the detention and the hearings and the process of trying to enforce our immigration laws. These are huge costs which the States themselves canif they cooperate and if we get a handle on the immigration problem, you can start to recoup some of those costs.
And I think, actually, one aspect of the CLEAR Act that I think really ought to be highlighted is the asset forfeiture provision. That will, I think, offer a huge potential for States to start to recoup some of those costs. And I think it's easy to underestimate what that potentiallyI mean, if you see what asset forfeiture has done in other areas, like drug enforcement, it is a massive impact on the ability to fund these operations.
And so I don't think it's an unfunded mandate and I don't think it's anything close to it.
Mr. HOSTETTLER. Mr. Edwards, opponents of the legislation claim that it would require State and local police to enforce the immigration laws. Do you believe the CLEAR Act forces, requires State and local police to enforce the immigration laws, as it's written?
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Mr. EDWARDS. No, sir, I do not. I believe that, as I explained a few moments ago, that States have a full opportunity to accept or reject writing a new law on their books.
Now, another approach you might do is, reword theI believe it was section 102, that says if a State or locality has a policy of noncompliance with the Federal Governmentand so you'd remove any opportunity for people to claim, falsely, I believe, that the States have to act or lose their SCAAP money, then just say, okay, you don't have to pass a new law; but if anybody passes an affirmative law that says you are not going to cooperate, such as the Houston sanctuary policy and so forth, then they would be ineligible for funding. Stuff likean approach like that might work.
Mr. HOSTETTLER. One more question for Mr. Kobach. In his testimony, Mayor Quan states that if the Senate were to adopt the CLEAR Act, it would blatantly preempt State and local laws. Is that true?
Mr. KOBACH. I'm glad you asked that question, because Iwith all due respect to Mr. Quan's statement, I would disagree with his characterization of preemption. H.R. 2671 does not fit within the normal categories or preemption as the courts have understood preemption to exist. Preemption occurs where the Federal Government displaces the State government's authority to act completely. The three types of preemption that the courts have recognizedexpress preemption, field preemption, and conflict preemptionI won't bore the remaining Committee Members by going into real detail herebut this doesn't fit any of those categories.
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A condition on the receipt of Federal funds in no way preemptsdisplaces the State governments from the field. Indeed, the CLEAR Act actually invites State governments into the field. Moreover, by allowing State governments to make policy choices and, again, inviting them to make policy choices, it does not displace them from this area. So I'm not sure if he meant something else other than preemption. But under current case law, this is not an example of Congress preempting State authority.
Mr. HOSTETTLER. Thank you. The chair now recognizes the gentleman from Georgia, Mr. Norwood, for questions for 5 minutes.
Mr. NORWOOD. Thank you, Mr. Chairman. I'm going to be very brief. There's been so much misinformation about what the CLEAR Act does in terms of abuse of women and children, as if we were to pass this law, everybodynobody would ever go to the police again.
And I'd like to submit for the record, Mr. Chairman, the language on what a U Visa is, which is available now and would be available after this act, so that we can be very clear that abused women, even though they could be deported because they're illegal, they can get immunity under the U Visa simply because of abuse. So
Mr. HOSTETTLER. Without objection.
Mr. NORWOOD. Thank you.
Page 145 PREV PAGE TOP OF DOC [The information referred to follows in the Appendix]
Mr. NORWOOD. I want to go back to a little bit to what Congressman Deal and, I think, Mr. Kobach, you were talking about in terms of the costs to this country of not enforcing illegal immigration. And you were talking about the costs to the States, but it isn't just the States. The Federal Government picks up a big piece of the cost for HUD housing. The Federal Government picks up a big piece of the cost for Medicare, hospitalization funding. SoMedicaid, I'm sorry. Thank you. I've listened too long today.
The point is, there is no tellingthere's truly no tellingand I don't know if we have an agency up here that can figure out what it really cost the nation with the invasion of 10 to 13 million illegal immigrants in this country. And for us to have places that want to have sanctuaries that refuse to even ask if you are a citizen of this country or not, is just amazing to me.
And I'd likewe've got a lot of lawyers here. I need to ask a question, if I may, about Houston's policy. The way I read their policy, they restrict their officers from contacting INS if an alien has been arrested for a Class C misdemeanor. In other words, their officers can't ask any of the questions. Isn't that illegal under Federal law?
Mr. KOBACH. I think thatI have heard the argument made that State noncompliance of that level is illegal. I haven't seen any case law on the subject. I think an argument could be made that that does violate some provisions of current
Mr. NORWOOD. Well, the current Federal law says you can't restrict. But that's basically what you do when you tell your law enforcement people do everything you need to do, but for God's sake don't ask them if they're a citizen. Isn't that restricting?
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Mr. EDWARDS. There was a provision added in the 1996 immigration law, the reform act, that does prohibit States and localities from that ostensibly, but
Mr. NORWOOD. I guarantee you, I just read it this afternoon.
Mr. EDWARDS. They're still doing it.
Mr. NORWOOD. My question is, though, wouldby telling your police officers not to even ask a question, doesn't that restrict, which is what the Federal law says you cannot do?
Lastly, maybe you can explain this to me. In their order down in Houston, 5005, they state that it is illegal to cross our borders without inspection. But it's only illegal during the minutes that you cross the border. It becomes okay once you get inland, once you get into the country. I mean, that's basically what they're saying. They're saying, yes, this iswe have immigration law that says you cannot cross our border, but once you cross that line and get into the country, no questions to be asked. That's not illegal to be here, it was just illegal to cross the border.
Is that true?
Mr. KOBACH. Not under Federal law. The person's still guilty of the criminal offense under the INA of entry without inspection. And I don't know if they're attempting to redefine the person's Federal offenses or not; I don't suppose that they are. But in effect, it seems to be that they are saying we aren't going to encourage the enforcement of this Federal provision.
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Mr. NORWOOD. That sort ofit's illegal to rob a bank until you leave the bank, then it's okay. I mean, what
Mr. KOBACH. And if I might add just one other thing here, while we're talking about things that are kind of absurd in the law. The point was made earlier that this would somehowthat it's somehow a bad idea to have civil provisions of the INA be subject to arrest by State and local police. The notion that somehow the civil ones are less extreme, the civil violations are less extreme than the criminal ones, simply doesn't comport with reality. If you read through this thing, you find that the failure to change an addresssomething that Mr. Quan mentionedis actually a criminal violation of the act, but over-staying a visa, something that three of the hijackers did, is a civil violation. It's not that the civil ones are less harmful to this country, it's just thatit's just the way the act is put together.
Mr. NORWOOD. That's part of what we're trying to do in the CLEAR Act, is make this simpler. And it does. It will no longer be a civil violation when we get thisit's going to be a felony. And that clears it up for many people on the streets. If every case is a felony, you need to deal with it.
Mr. Chairman, you've been extremely gracious in allowing us to come in on your Subcommittee hearing. And I, for one, and I'm sure Congressman Deal are very grateful for the time you've given us.
Mr. HOSTETTLER. Well, it's been an interesting hearing. The gentleman's time has expired. Does the gentleman from Georgia, Mr. Deal, wish to
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At this point the chair wishes to inform all Members that they have seven legislative days to insert further remarks into the record.
And I want to thank the witnesses, Mr. Morganelli, Professor Kobach, Dr. Edwards, and Mayor Quan in absentia for your being here today and your answering our questions and testifying before this Subcommittee. Your participation has been invaluable in this process.
The Committee's business being completed, the
Oh, and without objection and unanimous consent, I will offer the General Order of the Houston Police Department No. 5005 into the record.
[The information referred to follows in the Appendix]
Mr. HOSTETTLER. The business of the Subcommittee being complete, we are adjourned.
[Whereupon, at 7:15 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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PREPARED STATEMENT OF CONGRESSWOMAN SHEILA JACKSON LEE
I do not want local police forces to enforce immigration law. Immigration law is a complicated body of law that requires extensive training and expertise. Local law enforcement officials do not have the training and expertise that is necessary to determine who is present lawfully and who is not.
Community-based policing is one of the most powerful law enforcement tools available. By developing strong ties with local communities, police departments are able to obtain valuable information that helps them to fight crime. The development of community-based policing has been widely recognized as an effective tool for keeping kids off drugs, combating gang violence, and reducing crime rates in neighborhoods around the country.
In immigrant communities, it is particularly difficult for the police to establish the relationships that are the foundations for such successful police work. Many immigrants come from countries in which people are afraid of police, who may be corrupt or even violent, and the prospect of being reported to the immigration service would be further reason for distrusting the police.
In some cities, criminals have exploited the fear that immigrant communities have of all law enforcement officials. For instance in Durham, North Carolina, thieves told their victims - in a community of migrant workers and new immigrants - that if they called the police they would be deported. Local police officers have found that people are being robbed multiple times and are not reporting the crimes because of such fear instilled by robbers. These immigrants are left vulnerable to crimes of all sorts, not just robbery. In 1998, Elena Gonzalez, an immigrant in New Jersey, was found murdered in the basement of her apartment. Friends of the woman say that the suspected murderer, her former boyfriend, threatened to report her to the INS if she did not do what she was told.
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I also want to point out that Immigrants have performed heroic deeds in our country. For instance, Kwame James, a Canadian immigrant, risked his life to subdue a terrorist on an airplane. This professional basketball player was one of the men who subdued shoe- bomber Richard Reid aboard a Paris-to-Miami flight in December of 2001. James had been playing for a French team and was on his way home when the attack occurred. Asleep, he awoke to a plane full of screaming people. A flight attendant approached him for help. He rushed back to where Reid was struggling with passengers and crew. At 6 feet 8 inches and 220 pounds, James still had to struggle to hold down Reid, who was about the same size. Afterwards, he saw the flight attendants take away Reid's shoes, which were filled with plastic explosives.
Many communities find it difficult financially to support a police force with the personnel and equipment necessary to perform regular police work. Requiring state and local police forces to report to the immigration service would be a misuse of these limited resources. The immigration service also has limited resources. The immigration service does not have the resources it needs to deport dangerous criminal aliens, prevent persons from unlawfully entering or remaining in the United States, and enforce immigration laws in the interior of the country. Having to respond to every state and local police officer's report of someone who appears to be an illegal alien would prevent the immigration service from properly prioritizing its efforts.
Local police can and should report immigrants to the immigration service in some situations. The decision to contact the immigration service, however, should be a matter of police discretion, not a federal requirement.
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PREPARED STATEMENT OF CONGRESSMAN STEVE KING
Chairman Hostettler, Thank you for holding this hearing. I am a cosponsor of the CLEAR Act because I believe we must do all we can to increase cooperation between federal and local law enforcement to apprehend and remove criminal illegal aliens. Law enforcement officers desperately need the tools the CLEAR Act gives them to protect residents from crime.
Interior immigration enforcement is essential to the overall integrity of our immigration system. There are over 340,000 alien absconders-illegal aliens under a final order of removal-who have evaded capture. We must give law enforcement the tools they need to get these criminals out of our communities. It makes sense to utilize state and local officers to improve the enforcement of our immigration laws. At the same time we must also ensure that the federal government, particularly the Bureau of Immigration and Customs Enforcement (ICE) is responsive to local law enforcement and provides them with the necessary back up and follow through. There have been situations in the past where local authorities arrest illegal aliens, only to have the federal immigration authorities fail to follow through and take custody of these criminals-resulting in the release of a criminal alien. Release of a criminal alien due to lack of follow through is a grave miscarriage of justice. I will not stand for such neglect of duty. Local officers need and deserve our help.
I am also appalled by the so-called ''sanctuary'' policies of certain localities. These policies prohibit an officer from reporting violations of our immigration laws to the federal authorities. Such sanctuary policies are against the law. Localities that direct their officers not to inquire about a criminal's immigration status not only undermine United States immigration policy, they also hurt their own communities by not turning illegal aliens over to federal authorities. Instead, these criminal illegal aliens go on to commit further crimes that could have been prevented.
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Thank you Mr. Chairman, I look forward to hearing from the witnesses today and commend Mr. Norwood for his work on the CLEAR Act.
PREPARED STATEMENT OF CONGRESSWOMAN ZOE LOFGREN
Mr. Chairman, this bill, the ''Clear Law Enforcement for Criminal Alien Removal Act'', has so many things wrong with it, we would have to be here for hours just to list them. With every new read of this bill, I discover more and more problems that raise very serious concerns. Let me just list a few.
First, who better to listen to about law enforcement than the individuals responsible for keeping us safe - our local police chiefs? I have listened and they tell me this bill would be terrible for their police forces.
In a letter to Senator Feinstein, the California Police Chiefs' Association says, ''It is the strong opinion of the California Police Chiefs' Association that in order for local and state law enforcement organizations to be effective partners with their communities, it is imperative that they not be placed in the role of detaining and arresting individuals based solely on a change in their immigration status.''
Their letter continues, ''the proposed CLEAR Act, however, undermines the fundamental partnerships that our police agencies have with their communities. That partnership is essential to effective law enforcement.'' Let me repeat, the California Police Chiefs' Association, comprised of experts on law enforcement, says the CLEAR Act will undermine the fundamental partnerships with communities that are essential to effective law enforcement. If this does not convince everyone that this is a bad bill, then I don't know what will.
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Second, I am concerned about the additional funding this bill will purportedly authorize for our already strapped local law enforcement agencies. Every year it is a fight to get the little reimbursements we can from the State Criminal Alien Assistance Program (SCAAP). The President zeros out the SCAAP budget and we fight to get whatever we can.
Moreover, SCAAP reimbursements currently only allow for reimbursements for criminal aliens, not immigration violators without criminal history. This bill will give no SCAAP funding for all the new non-criminal immigrants the local police will have to hold in their jails and prisons.
Furthermore, the Department of Justice is trying to eliminate funding for so-called ''unverifiable'' claims for reimbursement that could cut reimbursements in my home state of California by fourteen percent. They have also decided to change reimbursements so that states will only be reimbursed for convicted criminals. That would mean further cuts by about 18 percent around the country.
With all these cuts in SCAAP and restrictions on the reimbursement formula, how do we expect that states will be reimbursed for all the new non-criminal aliens they are supposed to detain?
Our local police officers are already strapped for cash trying to deal with local law enforcement and now with homeland security. How are they expected to do their regular job, homeland security, and now immigration enforcement that they are not even trained to do?
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California has the highest SCAAP funding levels and the highest number of undocumented immigrants. We will have to shoulder most of the burden without reimbursement for a job that belongs to the federal government.
Another serious concern is with the language of this legislation. It states ''Notwithstanding any other provision of law and reaffirming the existing general authority, law enforcement personnel of a State or a political subdivision of a State are fully authorized to investigate, apprehend, detain, or remove aliens in the United States . . .''
What does it mean to ''investigate, apprehend, detain, or remove'' aliens? We have an entire immigration law written for the federal Department of Homeland Security, not for local law enforcement. Every detail is set out in the Immigration and Nationality Act for the federal government, not state and local law enforcement.
Finally, as a member of the Select Committee on Homeland Security, I am very concerned that the Department of Homeland Security will become so bogged down in answering calls from local law enforcement about non-criminal immigrants that they will be diverted from their primary mission - protecting us from terrorism.
These are just some of my concerns with the CLEAR Act. I have many others, from the overload on the National Criminal Information Center (NCIC) database to the high potential for profiling this bill will create.
Page 155 PREV PAGE TOP OF DOC This is a terrible bill that will have reverberating effects not only on immigrants around the country, but also on our national security, and the ability for our local law enforcement to keep us safe. I hope members on this Subcommittee will listen to the experts and oppose the CLEAR Act.''
PREPARED STATEMENT OF CONGRESSWOMAN LINDA T. SÁNCHEZ
Thank you, Chairman Hostettler and Ranking Member Jackson Lee for convening this important legislative hearing today to hear testimony on H.R. 2671, the ''Clear Law Enforcement for Criminal Alien Removal Act of 2003'' commonly known as the CLEAR Act.
I believe that the CLEAR Act is one of the most dangerous and potentially damaging bills this Subcommittee has considered. The CLEAR Act is detrimental to our police departments, the safety of our immigrant and non-immigrant communities, and our national security.
CLEAR Act Burdens State Law Enforcement Agencies and Budgets
The CLEAR Act puts a substantial burden on the state and local law enforcement agencies, state and local budgets, and taxpayers.
The CLEAR Act will require state and local law enforcement agents to be police officers, first responders, and immigration agents. America's state and local law enforcement agencies have their hands full fighting crimes and keeping our streets safe. Since the terrorist attacks of 9/11, state and local law enforcement agents have been given the added responsibilities of being ''first responders,'' our first line of defense against a terrorist attack. The CLEAR Act adds to these substantial burdens the responsibility of enforcing federal civil immigration laws. This is no easy task. To properly enforce federal immigration laws, police officers will have to be knowledgeable of subjects like H-1B visas, asylum, and Temporary Protected Status. It takes Federal immigration agents 17 weeks of training to learn the basics of these subjects, not to mention the time it takes to understand the thousands of nuances of federal immigration law.
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The CLEAR Act will also make it much more difficult for state and local law enforcement agents to protect the communities they serve. Turning police officers into immigration agents will destroy trust, cause many immigrants to avoid contact with law enforcement agents, and deter immigrants from helping with criminal investigations. The fear of being imprisoned or deported will cause victims, witnesses, or concerned citizens in immigrant communities from contacting police officers with information about crimes. This fear may prove to be a slippery slope and result in immigrants not informing fire departments and emergency rescue personnel of emergencies.
This is a concern that has been repeated by law enforcement agencies across the country. For example, the California Police Chiefs Association, Inc. recently said in a letter to Senator Dianne Feinstein:
The proposed CLEAR Act . . . undermines the fundamental partnerships that our police agencies have with their communities. That partnership is essential to effective law enforcement. The CLEAR Act effectively will turn our police officers into immigration agents. The unintended consequence of this bill will be to chill the willingness of immigrants to come forward and report crimes or other suspicious activities.
The result of the CLEAR Act will be to set back years of community policing efforts and attempts by law enforcement agencies to build goodwill in the community. The CLEAR Act, therefore, makes communities less safe, not more safe.
Additionally, the CLEAR Act makes communities less safe because it diverts law enforcement resources away from criminal investigations and arrests, and misdirects those resources to investigations of administrative or civil immigration violations.
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The CLEAR Act Requires No Police Training on Immigration Law
While the CLEAR Act gives state and local police officers the added responsibility of enforcing federal immigration laws, it does nothing to ensure the officers will be adequately trained to enforce those laws. Under Section 109(a) of the CLEAR Act, within 180 days of enactment the Attorney General or the Secretary of the Department of Homeland Security are required to develop a training manual to teach state and local law enforcement personnel about how to enforce federal civil immigration law. However, the training is not mandatory. Under Section 109(d) of the CLEAR Act, the ''Clarification'' provision, states and localities are not required to take any immigration training courses as a prerequisite to enforcing immigration laws. Specifically, section 109(d) says, ''Nothing in this Act or any other provision of law shall be construed as making any immigration-related training a requirement for or prerequisite to any State or local law enforcement officer to enforce Federal immigration laws in the normal course of carrying out their law enforcement duties.''
As a further obstacle to training state and local police officers on immigration law, Section 109(b)(1) of the CLEAR Act allows the Attorney General or the Secretary of DHS to charge states and localities a fee of up to 50% of the total cost to acquire the training manuals.
Penalizes States for Non-compliance
The CLEAR Act strikes another blow to state and local law enforcement efforts imposing severe penalties for non-compliance. While the CLEAR Act does not explicitly mandate that states enforce federal immigration laws, states that refuse to do so will lose their federal funding. If a state does not pass legislation within two years of enactment of the CLEAR Act explicitly authorizing law enforcement agents to enforce immigration laws, the state will lose funding under § 241(i) of the Immigration and Naturalization Act. States will also lose funding under § 241(i) if they do not give background information about apprehended illegal aliens to the Department of Justice and the Department of Homeland Security.
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The loss of federal funding will be very damaging for many states, including my home state of California. While the CLEAR Act increases appropriation for the SCAAP programs, it fails to change the formula for allocating funds. Under the new formula, states are only reimbursed for the costs of incarcerating unlawful immigrants who are convicted of a felony or two misdemeanors. The result of the CLEAR Act will be for California to lose all funding if they fail to comply, or continue to lose a substantial percentage of their SCAAP funding.
The CLEAR Act is a danger to citizens and immigrants
The CLEAR Act makes the penalties for immigration violations more severe. Under the Act any non-citizens who are present in the United States will be fined, imprisoned for one year, or possibly both. The non-citizen will also be subject to forfeiture of all of their assets.
By far the most dangerous provision of the CLEAR Act for the immigrant community is § 110 which grants law enforcement agents immunity from civil lawsuits as long as they act within the scope of their duties. This provision gives law enforcement agents carte-blanche to engage in widespread racial profiling. Granting police officers immunity from civil lawsuits will no doubt result in some detentions and arrests based solely on an individual's external ethnic appearance or the fact that they speak with an accent. American citizens and lawful immigrants alike will have no legal recourse when their civil rights are violated because officers will have total immunity.
Furthermore, the CLEAR Act rewards states and localities for enforcing immigration laws by giving states half of the civil penalties or assets seized from apprehension of illegal aliens, as well as federal grants for equipment, technology, facilities, administrative costs, and incarceration costs
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The CLEAR Act Hinders National Security
The CLEAR Act is also an obstacle to protecting our country from dangerous criminals, as opposed to immigrants who have overstayed their visa. The CLEAR Act undermines the purpose and usefulness of the National Crime Information Center (NCIC) database. The NCIC database is meant to be a tool used by the Federal Bureau of Investigation and local law enforcement agencies as a central information sources for wanted persons, persons with outstanding warrants, or other wanted criminals. Under the CLEAR Act, the Department of Homeland Security is required to provide NCIC with information on any person who has violated Federal immigration law. This includes civil and administrative immigration law violations. The result will be that potentially millions of people with minor immigration violations will be added to the NCIC. This result would be counterproductive to the NCIC's purpose of finding criminals.
The CLEAR Act is also a setback to national security because it diverts Department of Homeland Security personnel and funds away from investigating and apprehending terrorists to processing civil immigration violations. The way to make our country secure, and prevent another terrorist attack is by investigating and arresting terrorists not immigrants. Immigrants and terrorists are not the same thing.
Mr. Chairman and Ms. Ranking Member, I look forward to hearing the testimony of our witnesses today. I hope they can address the many concerns that I share with police departments across the country and immigration advocates about the dangers of the CLEAR Act.
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PREPARED STATEMENT OF THE HONORABLE CHARLIE NORWOOD
Thank you Mr. Chairman on holding this hearing today. I appreciate the opportunity to present the CLEAR Act to the Subcommittee and enter a discussion about the criminal alien crisis in our country.
Sometimes in this job, it only takes one story to spark a fire in your belly and drive you to change the system. In this case, there are many stories to share, but let me share one story that really hits home for me.
Miguel Angelo Gordoba is a child molester and illegally in our country. In August 2001, he finished a four-year sentence at Rivers State Prison for molesting a 2-year old girl in Alma, Georgia. On the day he finished his sentence you would think he would be picked up and deported. As unbelievable as it sounds, the INS, now the Bureau of Immigration and Customs Enforcement, didn't have his paperwork done. Subsequently, Mr. Gordoba registered as a sex offender, but when the county sheriff went to the listed address to check in on him, all he found was a vacant lot.
Mr. Gordoba is one of 80,000 criminal aliens with standing deportation orders that are on the loose within our borders.
When the Atlanta Journal Constitution printed an article on Mr. Gordoba late last year, I said that I would introduce legislation to empower law enforcement officials to help the INS ''crack down on this problem.'' That, ladies and gentleman, is what my colleagues and I are here today to present to you.
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But before we dive into the details of the bill, let me establish some facts.
There are upwards of 400,000 individuals who have received final deportation orders that are hiding in our communities. Their appeals have run out, and those orders tell them, ''it's time to go.'' But, the Bureau of Immigration and Customs Enforcement can't find them! What's worse, 80,000 of those people have criminal convictions, just like Miguel Angelo Gordoba! They were in the hands of our law enforcement. Can you imagine opening the doors of our prisons and letting 80,000 criminals run back into the streets? Well folks, that's exactly what has happened with these 80,000 criminal aliens. What's more, 3,800 of those people with final deportation orders are from countries with a known Al-Qaeda presence.
Let me say up front that I respect the new leadership at the Department of Homeland Security and appreciate the fact that they are acknowledging the INS' past mistakes. But there is no way the 2,000 agents they have assigned to find some 400,000 people can get the job done. They need help from the folks who come across these people everyday during routine traffic stops and during other activities in the course of their regular duty - police officers. In fact, Assistant Secretary of BICE, Michael Garcia, has agreed with this concept.
Right now if a local officer in Augusta during the normal course of his duty pulls over a car for say . . . speeding, with someone who is illegally in our country, they have to call the Bureau of Immigration and Customs also referred to as BICE, verify their status, and wait until someone from BICE comes to pick them up. Sometimes they have to wait for hours on the roadside for the pickup to arrive. But most of the time BICE says they are too busy to come by and they tell the police to let the lawbreakers go. Unbelievable . . . and that's just the tip of the iceberg.
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This landmark legislation has 10 steps to securing our streets. These steps are focused on clarifying authority, providing vital information to our law enforcement, and supplying them with additional resources to do their jobs. Allow me to briefly run through some of the major highlights.
First and foremost, this bill will clarify that state and local officers have the inherent authority to arrest and detain criminal and illegal aliens during the course of their regular duty. We are a nation of laws and it is just plain common sense to allow these officers to enforce all the laws.
Each locality and state has a choice if they want to enforce immigration laws. If a locality decides to enforce immigration laws, they will have access to $2.6 billion in federal funding, which they desperately need. If they chose not to, they will not be eligible for the $1 billion grant program created by the bill or any State Criminal Alien Assistance Program (SCAAP) funding. If a locality sticks its nose up at a set of federal laws, why on earth should they get federal funding to house the very criminal aliens they choose to harbor?
We are also going to create a new category within NCIC, the National Crime Information Center database, for immigration lawbreakers. This is the most accessible database that police officers have at their disposal; in fact, they can access it from their patrol cars. The goal is to provide them with readily accessible information on all lawbreakers literally at their fingertips.
All of this clarified authority is going to require more funding, training, and equipment. We certainly recognize that in this bill and have provided for a new grant program and training program to name just a few of the additional resources.
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One of the biggest complaints we heard from police officers in the field is how uncooperative BICE can be. Not anymore. . . . This bill allows state and local police to hold truly uncooperative federal agencies accountable by setting up an unprecedented administrative review process and fine schedule.
Finally, and perhaps most importantly, we are going to ensure that from the time a local officer detains a criminal alien, there are no gaps between that moment, the criminal serving their time in prison - if any, and their deportation from the country. We are going to do that by expanding the Institutional Removal Program. Currently a pilot program, the Institutional Removal Program requires that a criminal's deportation orders must be complete by the end of their sentence, and that BICE must pick them up at the prison and put them on a plane the day their sentence is complete. There will be no more individuals like Miguel Angelo Gordoba to worry about.
Critics of this legislation will try to tell you that the CLEAR Act just promotes police abuse. I take great offense to that implication. This was an issue we did much research on prior to writing the bill. For the first time, police will have access to training on immigration laws and how to prevent civil rights abuses. I say to those critics, have some faith in your police. You imply they are just waiting for an excuse to abuse their powers. They deserve more respect than that.
They also claim that the CLEAR Act will break down relations between police and immigrant communities. While I'm certainly sensitive to this vital relationship, I'm confident enactment of the CLEAR Act is not a threat - many other folks who know a great deal about the issue also agree. In fact, Assistant Secretary Michael Garcia of BICE, the agency's number two official, has stated this argument has no grounds. Nor do the members of the endorsing law enforcement groups believe this is a valid argument. The fact is, individuals in all communities, including immigrant communities, want criminal aliens off their streets, that is exactly what the CLEAR Act will do.
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Also disappointing is the misconception that the CLEAR Act will scare victims of domestic violence into silence. There is already protection for immigrant victims of domestic violence under the law, it's called the ''U'' visa, which protects victims, regardless of their immigration status. The legislation that created the ''U'' visa, was drafted by Leslee Orloff, Director of the NOW (National Organization for Women) Legal Defense Fund. Orloff wrote, and the statute now reads, that the purpose of this new visa is to ''strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence while offering protection to victims of such offenses. Creating a new nonimmigrant visa classification will facilitate the reporting of crimes to law enforcement officials by abused aliens who are not in lawful immigration status.'' This ''U'' visa gives battered illegal aliens temporary legal status and then lets them obtain a green card after 3 years. While there is current protection under the law for these crime victims, this will certainly be an integral part of the training program provided in the CLEAR Act.
This isn't only legislation that our police need; it's what people across the country want. A March 2003 Roper/ASW poll showed that ''85% of Americans agree and 62% strongly agree that Congress should pass a law requiring state and local governments, and law enforcement agencies, to apprehend and turn over to the INS illegal immigrants with whom they come in contact.''
The CLEAR Act currently has over 100 cosponsors and is endorsed by a number of law enforcement groups including: the National Sheriffs' Association, Law Enforcement Alliance of America, Southern States Police Benevolent Association, and the Friends of Immigration Law Enforcement.
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I thank the Chairman again for holding this very important hearing and hope that we can work together to enact this legislation.
JAMES R. EDWARDS, JR., ADJUNCT FELLOW, HUDSON INSTITUTE
ADDITIONAL RESPONSES TO QUESTIONS REGARDING H.R. 2671, THE CLEAR ACT, FROM OCTOBER 1, 2003, HEARING OF THE HOUSE IMMIGRATION SUBCOMMITTEE
Reply to Rep. Sanchez regarding the immunity provisions:
The immunity provisions of the CLEAR Act are carefully crafted to protect both individual police officers and law enforcement agencies against predatory or intimidation lawsuits. At the same time, the provisions of Section 110 safeguard the individuals taken into custody pursuant to enforcement under the CLEAR Act. Subsection (a) grants police officers legal immunity from personal liability for enforcing immigration law violations within their official duties. It would relieve police officers from being subject to lawsuits against them as individuals simply for doing their jobs.
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The immunity under this subsection extends solely to lawful police work; an officer who abused his authority, committing a crime as he acts under color of law, would not be immune from prosecution for that offense. The ''if'' clause is key: '' . . . if the officer is acting within the scope of his or her official duties.'' This language would by implication exclude abuses of power while acting under color of law. This is the same legal protection afforded anyone else in custody of officers of the law.
However, for doing his job in compliance with his training and the standards and practices of law enforcement, a law officer would be free from worrying that he might be sued for the purpose of intimidation and harassment by the likes of marauding lawyers who use litigation and the threat of litigation as a weapon to advance a political agenda. Police officers who faithfully do their jobs, which are stressful and dangerous enough already, would not have to fear being sued, bankrupted, and having their lives put through the ringer when they did nothing wrong.
Subsection (b) grants state and local police departments legal immunity from claims for monetary damages in connection with immigration enforcement. This provision holds law enforcement agencies immune from the kinds of lawsuits intended to intimidate, bleed public resources, and ultimately dissuade police from acting under the CLEAR Act. This immunity preserves policymaking for the appropriate, democratic arenas, not the courts.
However, the immunity language provides an exception to the departmental immunity when one of its police officers commits a criminal offense during the enforcement of immigration violations. In the case of overzealous officers, both officer and department would face liability, the officer criminal and his department civil. Therefore, lawfulness is upheld, and the essential rights even of illegal aliens in the custody of an American police agency are protected.
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This section of the bill achieves a necessary and proper balance. It protects police officers and the departments they work for from unfounded, but expensive and debilitating liability litigation (or the threat thereof), while also protecting the subjects of enforcement actions from being unlawfully mistreated by any police officers who would abuse and misuse the public trust and break the law they are sworn to uphold.
Reply to Rep. Hostettler regarding CLEAR Act requirements upon state and local law enforcement:
The CLEAR Act requires very little of state and local law enforcement officers and agencies that they are not already doing. The only new thing that all state and local police departments would have to do, regardless of their policies one way or the other toward immigration offenses and immigrants, would be to share intelligence. This would be part of fostering two-directional information sharing concerning the illegal and criminal aliens with whom law officers of a police agency come into contact. Beyond this minimal information sharing, the legislation mandates nothing. The rest of the bill contains financial incentives for enforcing federal immigration law, which state and local law enforcement already has the inherent legal authority to do and most police officers and agencies across the country seek to do.
Further, this information-sharing measure is not an unfunded mandate. Those police agencies whose policy does not restrict their officers from enforcing immigration violations or from cooperating with federal immigration authorities would qualify for certain federal funds, under the bill. Those funds would help cover any additional costs of complying with Section 105. However, insofar as police officers already create records of their traffic stops, encounters with suspects, and the like, this provision would involve little more than providing that information already in hand to federal authorities, making them aware of such routine encounters where criminal and illegal aliens are involved. It essentially requires no more than the timely sharing of information about certain aliens encountered during normal police work - information already largely collected and on hand.
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Beyond timely information sharing, which is vital to increasing the chances of capture in another jurisdiction and at helping identify trends in immigration violator behavior, state and local law enforcers would bear no new requirements. They would now receive cooperation from federal immigration authorities instead of the cavalier ''let them go'' response. State and local police would have flexibility in how and when they detain, house, transport, and hand over custody of illegal criminal aliens to federal authorities. They would have to attend to all these aspects of law enforcement anyway, and now would receive federal reimbursement - or rapid responsiveness - in cases involving illegal criminal aliens for the associated costs of law enforcement, which already fall most heavily on localities.
The only other requirement of state and local law enforcement would be to abide by the law and display standards of professionalism in the handling of cases involving illegal and criminal aliens. Otherwise, they would risk losing the CLEAR Act's limited grant of legal immunity. However, requiring professionalism and lawful conduct of police work is no new requirement at all.
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TO: Friends of Immigration Law Enforcement
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FROM: Craig Nelsen, director
Testimony in House on Norwood bill
Yesterday in the House, the immigration subcommittee heard testimony on Rep Charlie Norwood's CLEAR Act (H.R. 2671), a very excellent and important bill that would join local law enforcement with federal immigration authorities. Our side was well-represented by Kris Kobach, law professor and candidate for the 3rd Congressional District in Kansas, John Morganelli, district attorney from Pennsylvania, and Jim Edwards, author and expert on the issue. I want to pass on the following note from Jim, and emphasize with Jim that the level of resistance we are beginning to see to this bill is a good indication of just how important it is:
''The opposition to the CLEAR Act is pulling out all the stops getting their immigrant rights' advocacy groups sending letters for the committee hearing record against H.R. 2671.
''Time is of the essence. The record is held open for five legislative days for such things to be added. Please help get as many law enforcement officers, organizations, unions, officials, whoever supports the bill to send in a letter for inclusion in the record.
''The hearing was yesterday, Oct. 1.
Send letters both snail mail and fax to 2022253672. Attached are a couple of pieces to work from to get letters started.
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Address the letters to:
Rep. James Sensenbrenner
Chairman, House Judiciary Committee
Rep. John Hostettler
Chairman, House Immigration Subcommittee
2138 Rayburn House Office Bldg.
Washington, D.C. 20515
State-Local Police Immigration Enforcement Bill Outline
Authority: Clarifies in federal law that state and local law enforcement has authority to enforce immigration law. Helps ensure that states or localities do not interfere with such authority.
Individual Responsibility Assigned: Holds lawbreakers responsible for their illegal immigration. Adopts new penalties, plus asset forfeiture in certain cases, with the local jurisdiction that captures an illegal alien collecting half of the fine.
Information Sharing: Puts available information regarding violators of immigration law on NCIC. Encourages all jurisdictions, whether or not they have a policy of not enforcing immigration law, to collect and report basic information about the illegal aliens with whom their officers come in contact in carrying out their normal duties, such as name, address, a physical description, and the circumstances of the encounter (e.g., a traffic stop).
Page 172 PREV PAGE TOP OF DOC Additional Resources: Supplies additional resources to local law enforcement and Homeland Security. Increases authorization for SCAAP, detention and removal, and creates a new grant program for the purchase of equipment for housing and processing illegal aliens.
Better Coordination: Directs the federal government to take custody of illegal aliens caught by a state or local police agency or pay the locality to detain the aliens. Allows creation of a transportation system to routinely collect illegal aliens from localities, including the usage of ICE or Border Patrol or U.S. Marshals, a state or local law enforcement agency, or private contractors. Streamlines usage of local jail facilities for alien detention. Expands Institutional Removal
Program access. Allows greater access to alien screening and processing through technology. Expands the Institutional Removal Program. Federal Cooperation: Provides an administrative process for state and local law enforcers to hold uncooperative federal agencies accountable if there is a pattern or practice of routinely failing to cooperate or assist local police in a certain area with the enforcement of immigration violations.
Training: Provides for training of local officers in immigration law enforcement for those jurisdictions whose policy is to enforce immigration violations, but not as a condition for enforcing the law. Legal Protection of Local Police: Grants police officers and law enforcement agencies immunity from legal liability for enforcing immigration law.
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AMERICAN CIVIL LIBERTIES UNION, SUBMITTED BY TIMOTHY H. EDGAR, LEGISLATIVE COUNSEL
Mr. Chairman, Representative Jackson-Lee and members of the subcommittee:
On behalf of the American Civil Liberties Union (ACLU) we are pleased to submit the following statement for the record at this hearing on H.R. 2671, the ''Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act of 2003.'' Despite its title, the CLEAR Act seeks to entangle local police officers with the enforcement of civil, not criminal, violations of federal immigration law.
The ACLU is a non-partisan, non-profit organization with 330,000 members, dedicating to preserving our freedoms as set forth in the Constitution. The promises of the Constitution, including those against discrimination and those against unreasonable searches and seizures, apply to all persons within the United States, and thus protect both citizens and non-citizens.
Policies that separate federal immigration enforcement and state and local law enforcement, such as those adopted by hundreds of communities across the country, are vital to preserving the civil liberties and safety of residents of immigrant communities. The CLEAR Act would penalize governments and police forces that adopt such policies, substituting the federal government's judgment for that of local police. Passing the CLEAR Act would be a serious mistake.
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Involving state and local law enforcement in immigration status issues would have a severe impact on the civil rights and civil liberties of all persons, citizens and non-citizens alike, who reside in communities with large immigrant populations. Such involvement is opposed by many police departments and local governments who fear it would undermine public safety. It is opposed by conservatives who are wary of establishing a precedent for state and local enforcement of federal civil regulatory schemes. Finally, such a policy is not supported by the Bush White House, except with respect to what it describes as a narrow class of ''anti-terrorism'' matters.
Reversing Policies That Separate Local Law Enforcement from Immigration Enforcement Would Undermine Civil Liberties and Provide a Green Light for Racial Profiling
Reversing policies that separate immigration enforcement from local law enforcement will increase racial profiling and other unjustified stops, not only of undocumented workers, but also of legal residents and United States citizens who ''look foreign.'' Many of these problems have plagued earlier efforts of state and local law enforcement officers to become involved in civil immigration enforcement. For example, an effort in 1997 in Chandler, Arizona on the part of local police to enforce immigration laws resulted in widespread civil rights abuses, including unjustified arrests of legal residents and citizens of Mexican descent, severely strained police and community relations, and led to substantial liability on the part of the municipality.
A policy that permits or encourages state and local law enforcement officers to stop and question persons for the purpose of enforcing federal immigration law is fraught with constitutional peril. Any stops made on the basis of racial appearance clearly violate the Fourth Amendment. As the Supreme Court has made clear, officers may not arrest individuals for immigration enforcement purposes except on the basis of probable cause.(see footnote 3) The Court also made clear that the bare fact that a person ''looks foreign'' cannot supply probable cause.(see footnote 4) Indeed, relying on racial factors for the enforcement of any law, including immigration laws, is strictly forbidden under the Constitution and will lead to damages if officers engage in such conduct.(see footnote 5) Because of these problems, many state and local police departments and local governments, including New York City, Los Angeles, Seattle, Washington and Montgomery County, Maryland, have longstanding policies precluding their officers from becoming entangled in immigration enforcement.
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Reversing Policies That Separate Local Law Enforcement from Immigration Enforcement Would, According to Many Police Departments and Law Enforcement Officials, Seriously Undermine Public Safety
Reversing such policies would also seriously erode public safety. While those who favor such a change could point to incidents of particular undocumented immigrants who were not detained as a result of such a policy, these incidents must be weighed against the police's need to establish the trust and cooperation of their residents in order to solve crimes. Many state and local police departments who have considered these issues have decided that any benefits of involvement in immigration enforcement matters would be seriously outweighed by the effect such a policy would have on undermining the trust and confidence of immigrant communities. Absent such trust, many local and state police are concerned that members of immigrant communities will fear contacting the police if they are a victim of crime or a witness to crime.(see footnote 6)
Having a specialized federal agency whose sole responsibility is immigration enforcement simply makes good sense, as it frees other agencies, such as state and local police, to investigate crime and to obtain the cooperation of the communities they serve and protect. Good law enforcement requires trust. Reversing policies that separate immigration enforcement from local law enforcement could drag state and local police into the business of questioning and detaining individuals solely on the basis of immigration status, driving a wedge between immigrant communities and the very police they need to keep their communities safe.
Involving State and Local Police in Civil Immigration Enforcement Is Opposed by Conservatives, Who Fear It Could Set a Precedent For State and Local Involvement in Enforcing Other Federal Regulatory Schemes
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Leading conservatives, including Grover Norquist, President of Americans for Tax Reform, and David Keene, Chairman of the American Conservative Union, have expressed opposition to having state police enforce civil immigration laws, denouncing it as a scheme that could lead to ''nationalization of local law enforcement.'' As they observe, ''If local police are to enforce our immigration laws, will they soon be required to seek out and apprehend those who violate our environmental laws, or the Americans with Disabilities Act as well?''(see footnote 7)
These concerns arise because enlisting states in enforcing immigration laws would upset the basic federal scheme. Under our Constitution, immigration policy is a federal matter. The question of which non-citizens are permitted to stay in the United States, and which may be removed, is governed by a complex set of laws and regulations which is implemented by a federal regulatory agency. These laws and regulations have been described by the Supreme Court as ''intimately blended and intertwined with responsibilities of the national government,'' so that where the federal government has enacted ''a complete scheme of regulation'' on the subject of immigration, ''any concurrent state power that may exist is restricted to the narrowest of limits.''(see footnote 8) State law enforcement officials are not trained in the complexities of immigration law and procedure, and are not well suited to make judgments about the enforcement of such laws.
For these and other reasons, according to a 1996 memorandum from the Office of Legal Counsel (OLC) of the Department of Justice, while state and local police may lawfully assist federal immigration officials in certain respects, ''[s]tate and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws.'' In 2002, the Bush Administration announced it was reconsidering this policy, and eventually endorsed an exception to this position in certain allegedly terrorism-related cases (discussed below). We agree with OLC's 1996 conclusion that any use of state or local police to enforce civil immigration laws, regardless of whether the cases are said to be terrorism related, is vulnerable to legal challenge.
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Using State and Local Law Enforcement Officials to Enforce Immigration Law, Except With Respect to a Narrow Class of ''Anti-Terrorism'' Cases, Is Not Supported by the Bush White House
A wholesale reversal of these policies also appears to be at odds with the views of the Bush White House, which has endorsed expanding the role of state or local law enforcement to arrest individuals for immigration offenses only in cases said to be related to terrorism. In 2002, controversy arose when the Justice Department announced that it would place the names of some non-citizens who were wanted only for committing immigration violations in the National Crime Information Center (NCIC) database, which is routinely consulted by state and local police.
In response to these concerns, White House Counsel Alberto Gonzalez said that ''[o]nly high-risk aliens who fit a terrorist profile'' would be placed in the NCIC.(see footnote 9) President Bush's stated preference for a ''narrow'' use of the NCIC would be completely undermined by a wholesale reversal of state and local government policies that generally prohibit their officers from enforcing immigration laws.
As we explain above, we do not agree that creating an exception providing for state and local immigration enforcement in some cases would be legal or wise; nor do we agree that the cases this Administration calls terrorism-related - almost all of which involve very common, garden-variety immigration status violations - necessarily have anything to do with terrorism. Nevertheless, a complete reversal of policies separate immigration and local law enforcement would plainly go beyond authorizing some state and local law enforcement officials to assist in enforcing immigration laws in some ''narrow'' subset of cases said to be terrorism-related.
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Any benefits that might result from enlisting state and local police to enforce complex federal immigration laws would be far outweighed by the serious consequences of such a change. A wholesale reversal of policies that separate immigration enforcement from local law enforcement would (1) harm the civil rights and civil liberties of immigrant communities and lead to widespread racial profiling, (2) harm public safety by driving a wedge between immigrant communities and the police who serve and protect them, (3) harm our federal system by authorizing state and local police to enforce a civil federal regulatory scheme, and (4) complicate President Bush's stated position of supporting state and local enforcement only in certain ''narrow'' circumstances said to be related to terrorism.
PREPARED STATEMENT OF MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, SUBMITTED BY KATHERINE CULLITON, LEGISLATIVE STAFF ATTORNEY
MALDEF Opposes Using First Responders To Enforce Federal Civil Immigration Laws
Proponents of the Clear Law Enforcement for Criminal Alien Removal (''CLEAR'') Act (H.R. 2671) tell horror stories alleging that local police are not empowered to catch criminals who happen to be undocumented immigrants. None of the cases being put forward to justify the CLEAR Act would be solved by state and local police enforcing civil immigration laws. State and local police already have all the legal power needed to make the arrests necessary. We do not need a change in the laws for the criminals described in these horror stories to have been arrested and prosecuted for their crimes and any of their immigration law violations.
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The CLEAR Act and similar proposals would have state and local police target all immigrants, criminals and non-criminals alike. There are approximately eight million undocumented immigrants in the U.S. It is a civil violation to be living in the U.S. without legal authorization. The overwhelming majority of these immigrants are hard-working families trying to make a better life for themselves. They are not criminals.
If the CLEAR Act were enacted, first responders would have to use precious national and local security resources to reign in immigrants instead of doing the police work needed to keep America safe. Police across the country are opposed to such policies, because such policies would lead to a decrease in trust between police departments and immigrant communities and an increase in vulnerability to crime and harassment in immigrant communities, for immigrants and those who ''look like'' immigrants, decreasing security for everyone. MALDEF, a national, nonpartisan, nonprofit organization that has been defending the civil rights of Latinos for 35 years, is also opposed to the CLEAR Act and similar proposals, for many of the same reasons, as set forth in the legal and factual analysis below.
Immigrant/Minority Communities Would Be Less Safe
Latinos know from tough experience that when local police enforce federal civil immigration laws, neighborhoods become less safe. Crime victims are further victimized by being unable to safely report the crimes against them. Witnesses of crimes committed against immigrants and citizens are afraid to come forward for fear they will be deported. Some examples of these situations are:
Page 180 PREV PAGE TOP OF DOC Mexican national Petra Martinez was murdered along with her two-year-old son, Urel Martin, on July 19, 2003, in their home in a heavily-immigrant neighborhood in Clearwater, Florida. Local police believe that some members of the community have information, but are afraid to come forward for fear of immigration repercussions.
''Jorge'' is a sixteen-year-old boy who went to the police after escaping a kidnapping situation, in which he was held captive and tortured by a gang of boys for days. Instead of helping Jorge, the police turned him over to immigration and although he was a crime victim with no criminal record himself, he was sent to a maximum-security juvenile facility in Spokane, Washington.
In Maine, a Honduran-American victim of robbery called the police. The police then tried to determine if he was legal and turned him over to the former Immigration and Naturalization Service (''INS''). He was eventually released, but he was also living with several other immigrants who were out of status, and were taken into INS custody. Such practices have an extreme chilling effect.
On February 27, 2003, Lesley Orloff, Director of the National Organization for Women's (''NOW'') Legal Defense Fund's Immigrant Women Program testified that battered immigrant women's fear of reporting abuse for fear of retaliation by their abusers is compounded by fear of deportation, and that: ''These issues preclude many battered immigrant women from requesting the help they need to counter the domestic violence they are experiencing in their lives.''
The NOW Legal Defense Fund survey demonstrated that fear of deportation was the most significant reason that battered immigrant women are much less likely to report abuse. This reality is exacerbated by state and local police threatening to enforce civil immigration laws, and is in direct contradiction to the legal protections for immigrant women set forth in the Violence Against Women Act.
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Because community policing, i.e., building trust between police officers and the communities they patrol, is such a valuable tool for public safety, numerous police departments across the country have made public statements against becoming involved in civil immigration enforcement.
Increased Racial Profiling is Foreseeable
Not only is safety compromised for Latinos and other minority/immigrant families and communities; to make matters worse, law enforcement's use of racial profiling increases when state and local police think they are charged with enforcing federal civil immigration laws. For example:
This past May in Riverside, California, local police officers demanded to see documents of all Latinos working in an avocado grove, harassing citizens, legal residents and undocumented immigrants alike and threatening to turn them over to the Border Patrol. One undocumented immigrant ran and was then assaulted by the local police. The Riverside Sheriff told the press that his department policy was that his officers should not be enforcing civil immigration laws, but the officers were confused by the statements of Attorney General Ashcroft.
Prior to 9/11, Latino civil rights groups reported a national trend of case after case of racial profiling of Latinos (including citizens and legal residents from all walks of life) when state and local police became involved in enforcement of federal civil immigration laws. For example, in Chandler, Arizona, police tried to assist the INS in raids and the Arizona Attorney General later found that residents were stopped repeatedly ''for no other reason than their skin color or Mexican appearance or use of Spanish language.'' In a Katy, Texas joint police-INS operation, local police stopped individuals in vehicles and in street sweeps based on Hispanic appearance only. This type of discrimination is prohibited by the U.S. Constitution.
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Since 9/11, across the South, state and local police have been stopping Latinos and demanding their immigration papers, through the practice of racial profiling.
When state and local police think they can enforce federal civil immigration laws, racial profiling of those who ''look like'' immigrants is highly foreseeable.
Racial profiling is foreseeable because the CLEAR Act would allow local police to perform a role for which they are ill-equipped and have little or no training. When state and local police interact with immigrants, their actions are subject to strict scrutiny. Despite this high standard, many local police rely on race and national origin in determining who to detain, question, or arrest.
Local police cannot properly discern between who is an asylum seeker, who has been the victim of human trafficking and is entitled to the new T-visa, who is out of status because their papers were mis-processed or lost by the former INS, which was notorious for the inaccuracy of its records, who has valid immigration appeal rights, and who is without documentation with no remedies yet still deserves the due process protections that the U.S. Constitution ensures for every person under the Bill of Rights. Local police are overwhelmed with public safety and community policing needs, and they are simply not properly trained in immigration laws. Without proper training, federal oversight and accountability, many officers simply choose to demand immigration documents from those who ''look foreign,'' which is a determination based on race, ethnicity and national origin.
Section 109 of the CLEAR Act expressly states that training would not be required before local police are tasked to enforce federal civil immigration laws, breaking the model currently set forth under the Immigration and Nationality Act (''INA''). Section 1357(g) of the INA permits the use of state and local police to enforce federal civil immigration law only under the limited statutory circumstances of a properly signed Memorandum of Understanding (''MOU''), which requires their training in the complexities of federal civil immigration laws.
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In contrast, the CLEAR Act would break the MOU rules requiring training under the INA, and it would completely gut civil rights protections in the process. Its sponsors acknowledge that racial profiling is foreseeable under these circumstances. In sum, while the CLEAR Act would not increase public safety or national security, it would provide an excuse to harass Latinos.
Enforcing Civil Immigration Laws Falls Under the Exclusive Jurisdiction of the Federal Government
For the reasons discussed above, MALDEF urges Congress to vote against any policy that would encourage state and local police to become federal civil immigration law enforcers. This would be very dangerous public policy. Congress should instead clarify that immigration enforcement is the job of the federal government, through the newly-created Department of Homeland Security (''DHS''). Federal law enforcement should concentrate on identifying the individuals who are most dangerous. Instead of targeting or profiling all immigrants, a more effective strategy would be to investigate suspicious behavior in order to find the real terrorists.
The CLEAR Act and similar proposals would not only decrease public safety and increase racial profiling, they would also contradict well-settled Supreme Court doctrine that civil immigration enforcement falls under the exclusive jurisdiction of the federal government. As the Department of Justice and the former INS acknowledged in their own rule-making procedure as recently as January of this year, the federal government and Congress have plenary power over immigration, and the States may not interfere.
Page 184 PREV PAGE TOP OF DOC In 1996, the Department of Justice (''DOJ'') Office of Legal Counsel issued a legal opinion clarifying that state and local police may not enforce federal civil immigration laws, which falls under the exclusive jurisdiction of the federal government. The DOJ clarified that state and local police may assist only in cases of criminal violations of federal immigration laws, under the circumstances of a Terry stop; or in cases of emergency, if a special deputization has been undertaken by Justice and supervised by federal officials; or if an exceptional memorandum of understanding has been agreed to, in accordance with Section 1357(g) of the INA, which was enacted in 1996.
However, during a June 2002 press conference, Attorney General Ashcroft expressed a different sentiment, and stated that he thought that state and local police have ''inherent authority'' to enforce federal civil immigration laws. Since then, the Department of Justice answered a Freedom of Information Act (''FOIA'') request as to the basis of this idea by denying access to the documents underlying this novel interpretation. This FOIA request is now the subject of federal litigation, and a second FOIA request, filed by the ACLU and numerous other groups, is still pending. During House Judiciary hearings this [July], Attorney General Ashcroft did not answer Representative Linda Sanchez' question about the basis of his idea that state and local police have ''inherent authority'' to enforce federal civil immigration laws. Representative Sanchez asked the question because the Attorney General's statement has led to increased racial profiling and harassment of Latino citizens and immigrants alike. But Attorney General Ashcroft avoided answering her question as to the basis of his idea.
Since the Attorney General's interpretation contradicts well-established Supreme Court doctrine about the exclusive federal plenary power to regulate immigration under the U.S. Constitution, it may be that the only legal basis for local law enforcement's expanded involvement in civil immigration matters is that which the Congress would put into place through the CLEAR Act. However, in any case, Congress may not legislate in contravention of the U.S. Constitution.
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Conclusions and Recommendations:
Congress must not pass the CLEAR Act. As discussed above, demanding that state and local police enforce federal civil immigration laws would be very bad policy and alienate immigrant and minority communities, who are not the enemy. Latinos, for example, are very concerned about the war against terrorism. However, for all practical purposes, the CLEAR Act would mandate the excuse of racial profiling of Latinos and many other U.S. citizens and immigrants, especially people of color.
For all these reasons, MALDEF urges the Congress and the DHS to clarify that enforcement of federal civil immigration laws falls under the exclusive mandate of the DHS. The 1996 Department of Justice (''DOJ'') Memorandum Opinion clarifying this conclusion and detailing the limited exceptions in which state and local police may enforce civil immigration laws should be reaffirmed. The only legal circumstances under which state and local police may get involved in civil immigration enforcement is through an MOU negotiated under Section 1357(g) of the INA, with proper training and federal accountability and oversight, to prevent abuse, including due process and civil rights violations. Furthermore, federal law enforcement should concentrate first on identifying dangerous criminals and terrorists, prioritizing precious national security resources in order to keep American communities safe. First responders such as state and local police should concentrate on protecting against crime and terrorism, while maintaining community policing practices recognizing America as a nation of immigrants.
MALDEF supports the Rule of Law and is not against enforcement of federal immigration laws. However, Congress and the Administration have acknowledged that the system is broken; therefore, it must be acknowledged that many are out of status through no fault of their own. The former INS lost and even shredded documents, and INS information is notoriously inaccurate. Comprehensive immigration reform is needed before any massive enforcement effort would not lead to serious due process violations and permanent damage to American democracy.
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Finally, careful review of the facts and the law shows that the crimes mentioned by supporters of the CLEAR Act could have been solved through existing laws. If this was not done in the cases at issue, Congress and the DHS should concentrate on identifying how existing law should be properly implemented to ensure protection against these egregious crimes. At the same, immigrant communities must also have safe access to police protection, including the ability to report crimes. If public safety and national security are truly a priority, the CLEAR Act must not be enacted, community policing practices must be supported and even encouraged, and the U.S. government should clarify that it values the assistance of immigrant communities in fighting the war against terrorism.
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September 16, 2003
Dear Member of Congress:
We, the undersigned, urge you to oppose the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act, H.R. 2671, introduced by Representative Charles Norwood (R-9th/GA). Despite its title and the rhetoric surrounding it, this bill would have dangerous consequences for public safety.
We agree that our criminal laws need to be enforced in order to make our streets and communities safe. State and local police are currently authorized to enforce criminal laws, regardless of the immigration status of the perpetrator of the crime. They are also authorized to notify federal immigration agents about foreign nationals who have committed crimes. This authority is fully consistent with the public safety role of police. However, the CLEAR Act would force police to investigate and enforce federal civil immigration laws-for example, staying past the expiration date of a temporary visa is a civil immigration law violation. Asking local police to enforce civil laws would actually have a detrimental effect on crime solving and prevention. Newcomers and native-born residents alike, who are victims or witnesses of crime, would be less likely to approach local law enforcement for fear of exposing themselves or their immigrant family members to deportation.
We have grave concerns about several provisions of this bill, and ask you to consider the following:
Page 191 PREV PAGE TOP OF DOC State and local police are not equipped to enforce federal civil immigration laws. Federal immigration agents undergo an intensive 17-week training course in immigration law before they begin duty. The immigration code is among the most complex bodies of law, even in comparison to the tax code. It is infeasible to adequately train 600,000 state and local police officers in immigration law enforcement. And at a time of severe budget crises, when local police departments are simultaneously laying off staff and responding to new homeland security mandates, tacking on such a wide body of federal laws to enforce would simply overwhelm these agencies.
If newcomers and their families view local police as immigration agents, they will be discouraged from reporting crimes or serving as witnesses. It was no surprise that the Department of Justice's similar effort last year (to give local police the authority to enforce civil immigration laws) was denounced by scores of local police departments. Police attribute plummeting crime rates over the last decade or so to the ''community policing'' philosophy, where local police work to gain the trust and confidence of the residents they are charged with protecting. Enactment of the CLEAR Act would undermine the efforts-and successes-of local police, as word that they are now immigration agents will spread like wildfire in newcomer communities. Immediately, more immigrants and U.S. citizens with immigrant family members would decline to come forward to report crimes, fires, and other hazards, simply because they know that their immigration status or that of their family members would come under new scrutiny. When immigrants and their family members are scared to report crimes and suspicious activity, crimes go unsolved and the safety of the entire community is compromised.
As organizations that work with immigrants on a regular basis, we can point to countless examples of the chilling effect this bill would have on crime reporting. For example, immigrant victims of domestic violence are often told by their batterers that if they report the abuse to authorities, they will be deported. This forces victims to decide between two nightmares: remaining with their abuser, or potentially facing separation from their children and leaving them at the mercy of the batterer. The decision to report abuse is already difficult enough. Fear of immigration consequences on the part of the victim should never be a factor. Sadly, though, this is often the case. In fact, we know of situations in which the victim's immigration status has indeed come under scrutiny, either by the local police investigating the situation or the judge adjudicating a protective order. When other domestic abuse victims see their friends and relatives in deportation proceedings because they sought help from authorities, the message is clear: do not report the crime or you will face even harsher consequences.
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This problem is not limited to domestic violence cases. Other examples show how criminals are not apprehended when immigrants begin to fear contact with local police, and stop reporting crimes or information. A Pakistani immigrant from Brooklyn, NY was stabbed in the foyer of his building in January 2003.(see footnote 10) To avoid having to make a police report (because he was undocumented and feared the consequences), he told paramedics that he had stabbed himself. In Manhattan, a Mexican teenager was raped, but was afraid to report it to police because of her own undocumented status.(see footnote 11) And in Clearwater, FL, the murder of an immigrant mother and her child may go unsolved because residents with clues or information of interest to local police are afraid to come forward.(see footnote 12) These are isolated examples of what would quickly become an epidemic, should the CLEAR Act pass.
In addition to the public safety concerns posed by this bill, it practically ensures the likelihood of civil rights abuses and wrongful arrests. There are nearly eleven million naturalized U.S. citizens, and more than twenty-five million native-born Americans of Latin American and Asian descent. Citizens are not required to carry proof of citizenship with them. Yet some police officers, vested with the authority proposed in the CLEAR Act, would inevitably stop and question people of certain ethnic backgrounds, who speak foreign languages, or who have accents-leading to violations of the rights of U.S. citizens and legal residents whose only offense is ''appearing foreign.'' Anticipating this, the bill purports to grant immunity from civil lawsuits for officers who enforce immigration laws. Such immunity is contrary to efforts to eradicate racial profiling from U.S. law enforcement, and it will not stop inevitable costly and lengthy litigation. Finally, wrongful arrests are likely as the bill requires that the notoriously bad data maintained by the federal immigration service be dumped into the National Crime Information Center database. This presents an administrative nightmare for state and local police, and again wastes precious resources at a time they can ill afford it.
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If passed, the CLEAR Act would make state and local law enforcement officers' jobs nearly impossible, and would bring us further from, not closer to, the goal we all share of making our communities safer. We urge you to oppose it.
American-Arab Anti-Discrimination Committee (ADC)
American Civil Liberties Union
American Immigration Lawyers Association
Amnesty International USA
Arab American Institute
Asian American Legal Defense and Education Fund
Catholic Legal Immigration Network, Inc. (CLINIC)
The Committee for Inter-American Human Rights
Episcopal Migration Ministries (EMM)
Family Violence Prevention Fund
Hebrew Immigrant Aid Society (HIAS)
Immigrant Legal Resource Center
Immigrant Women Program of NOW Legal Defense and Education Fund
Page 194 PREV PAGE TOP OF DOC Immigration and Refugee Services of America
Labor Council for Latin American Advancement (LCLAA)
Lawyers Committee for Human Rights
Leadership Conference on Civil Rights (LCCR)
Love Sees No Borders
Lutheran Immigration and Refugee Service
Mexican American Legal Defense and Educational Fund (MALDEF)
Muslim Public Affairs Council (MPAC)
National Asian Pacific American Legal Consortium
National Catholic Association of Diocesan Directors for Hispanic Ministry (NCADDHM)
National Coalition Against Domestic Violence
National Coalition for Asian Pacific American Community Development
National Coalition for Haitian Rights
National Council of La Raza
National Employment Law Project
National Immigration Forum
National Immigration Law Center
National Immigration Project of the National Lawyers Guild
National Korean American Service and Education Consortium
Network in Solidarity with the People of Guatemala (NISGUA)
People For the American Way
The Puerto Rican Legal Defense and Education Fund
Service Employees International Union (SEIU), AFL-CIO, CLC
Page 195 PREV PAGE TOP OF DOC Sikh Mediawatch and Resource Task Force (SMART)
Southeast Asia Resource Action Center (SEARAC)
Tahirih Justice Center
United Food and Commercial Workers International Union (UFCW)
United States Conference of Catholic Bishops
Regional, State, and Local Organizations
Hispanic Interest Coalition of Alabama
Addiction Services, P.C.
Border Action Network
Florence Immigrant and Refugee Rights Project
Tempe Hispanic Forum
ACLU of Southern California
American Arab Anti-Discrimination Committee, Los Angeles and Orange County Chapter
Asian Law Alliance
Asian Pacific American Legal Center of Southern California
Page 196 PREV PAGE TOP OF DOC Asian Pacific Policy and Planning Council
Catholic Charities of the Diocese of Santa Rosa
Catholic Charities Refugee and Immigrant Services-San Diego
Catholic Charities of San Jose
Central American Resource Center (CARECEN)-Los Angeles
Coalition for Humane Immigrant Rights of Los Angeles
Darin M. Camarena Health Centers, Inc.
East Bay Asian Local Development Corporation
East San Jose Community Law Center
Korean Resource Center of Los Angeles (KRC)
Lawyers' Committee for Civil Rights-San Francisco Bay Area
Migration Policy and Resource Center/Occidental College, Los Angeles
Newark Police Department
Sexual Assault Crisis Agency (SACA)
South Asian Network
Boulder County Safehouse
Colorado Coalition Against Domestic Violence
Los Companeros (San Juan Citizens Alliance)
Rights for All People/Derechos Para Todos
Page 197 PREV PAGE TOP OF DOC Catholic Charities Migration and Refugee Services-Hartford
District of Columbia
CARECEN-DC (Central American Resource Center)
Washington Lawyers' Committee for Civil Rights and Urban Affairs
Catholic Charities of Orlando, Inc.
Diocese of Orlando, Respect Life Office
The Farmworker Association of Florida, Inc.
Florida Immigrant Advocacy Center (FIAC)
Latino Leadership, Inc.
The Law Firm of M. Thomas Lobasz, P.A.
Office for Farmworker Ministry
Immigration Services of Catholic Social Services-Atlanta
Catholic Charities Community and Immigrant Services
Na Loio - Immigrant Rights and Public Interest Legal Center
Alivio Medical Center
Dominican Literacy Center
Heartland Alliance for Human Needs and Human Rights
Page 198 PREV PAGE TOP OF DOC Illinois Coalition for Immigrant and Refugee Rights (ICIRR)
The Immigration Project
Korean American Resource & Cultural Center (KRCC)
Latino Youth, Inc.
Peregrinos por la Dignidad
Immigrant Rights Network of Iowa and Nebraska
El Centro, Inc.
Catholic Charities Archdiocese of New Orleans
Migration and Refugee Services/Catholic Diocese of Lafayette
Office of Justice and Peace/Catholic Diocese of Lafayette
Immigrant Legal Advocacy Project
Immigration Outreach Service Center (IOSC)
Migrant and Refugee Cultural Support, Inc. (MIRECS)
Page 199 PREV PAGE TOP OF DOC Brazilian Immigrant Center
Brazilian Resources and Services Network
Brazilian Workers Center
Irish Immigration Center
Massachusetts Immigrant and Refugee Advocacy (MIRA) Coalition
Massachusetts Law Reform Institute
UFCW Local 1445
ACCESS (The Arab Community Center for Economic and Social Services)
Hispanic American Council
Michigan Organizing Project (MOP)
Archdiocese of St. Paul & Minneapolis Hispanic Ministry Leadership Team
Minnesota Literacy Council
Waseca Area Neighborhood Service Centre
Catholic Charities of the Diocese of Jackson
Catholic Diocese of Jackson
Daughters of Charity
Saint Anne Catholic Church
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NE Mexican American Commission
Nebraska Appleseed Center for Law in the Public Interest
Catholic Community Services, Refugee Resettlement and Immigration Assistance Programs-Newark
Migration and Refugee Services/Diocese of Trenton
New Jersey Coalition for Battered Women
New Jersey Immigration Policy Network, Inc.
Wind of the Spirit, Immigrant Resource Center
MANA de Albuquerque (Mexican American National Association of Women)
Alianza Dominicana, Inc.
Asian Americans For Equality, Inc.
CUNY School of Law, Immigrant Initiatives
Cabrini Immigrant Services
Catholic Charities of Rockville Centre
Central American Legal Assistance
Central American Refugee Center
Page 201 PREV PAGE TOP OF DOC Community Board 2 Manhattan
Face to Face
The Forest Hills Community House
Goddard Riverside Community Center
Hotel Employees & Restaurant Employees Union, Local 100
Latin American Integration Center
Marymount Manhattan College Institute for Immigrant Concerns
New Immigrant Community Empowerment (NICE) - Jackson Heights
New York Immigration Coalition
New York State Defenders Association
Rockland Immigration Coalition
Young Korean American Service & Education Center (YKASEC)
Center for New North Carolinians
Episcopal Farmworker Ministry
Latino Community Credit Union
Latino Community Development Center
North Carolina Justice and Community Development Center
Community Refugee & Immigration Services
En Camino, Migrant and Immigrant Outreach/Diocese of Toledo
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Asian American Community Service Association, Inc.
Leblang, Sobel & Ashbaugh, P.L.L.P.
International Institute of Rhode Island, Inc.
Garcia Labor Company, Inc.
Highlander Research and Education Center
Tennessee Immigrant and Refugee Rights Coalition (TIRRC)
ARCA (Association for Residency and Citizenship of America)
Association for Immigrants' Equality and Freedom
Catholic Charities of Dallas, Immigration Counseling Services
Catholic Family Service, Inc.
Concilio de Inmigración
Equal Justice Center
Hines & Leigh, P.C.
School for All
Texas Civil Rights Project
Page 203 PREV PAGE TOP OF DOC Texas Council on Family Violence
The Hispanic Committee of Virginia
Office of Justice and Peace, Catholic Diocese of Richmond
Refugee and Immigration Services, Catholic Diocese of Richmond
Refugee & Immigration Services - Roanoke Office
Tenants' & Workers' Support Committee
Virginia Hispanic Chamber of Commerce
Virginia Justice Center for Farm and Immigrant Workers
Chinese Cultural Association
El Centro de la Raza
Northwest Immigrant Rights Project
Washington Defender Association's Immigration Project
La Causa, Inc.
Voces de la Frontera
A PHONY 'FREEDOM RIDE', BY KRIS W. KOBACH
Page 204 PREV PAGE TOP OF DOC October 1, 2003THE ''Immigrant Workers Freedom Ride'' descends on Washington today in what participants claim is a civil-rights protest like the original Freedom Ride of 1961. They insist that illegal aliens in America today face ''injustices'' akin to those faced by African-Americans in the segregation era. Not only is their analogy absurd, their proposals are ill-conceived.
The analogy is an affront to those who suffered true injustice prior to the passage of civil rights laws in the 1960s. Illegal immigrants are not law-abiding citizens whose constitutional rights are under siege due to racial animus. Rather, they are foreign nationals who have violated our laws - laws that apply to all non-citizens, regardless of race.
And what they're demanding are not rights at all, but the privilege of being above the rule of law.
Their top demand is for an amnesty to legalize most of the more than 8 million illegal aliens already in the United States.
That would make a mockery of our immigration laws - sending the message that they're mere guidelines, not to be taken seriously because Congress is likely to waive them at any time. Worse, it would reward those who have broken the law - while double-crossing the more than 4 million aliens who are respecting it by waiting patiently to enter the United States legally.
Moreover, an amnesty for illegal aliens is not just a pardon for past offenses - it also gives legal status for the future. This is like telling a bank robber that he's not just getting immunity from prosecution, but he can also keep the money he stole.
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Finally, amnesties don't solve the problem of illegal immigration. They make it worse: Every amnesty of the past two decades has engendered another surge of illegal immigration. Aliens flooded across the border - some expecting that another amnesty would soon follow, others intent on falsely claiming that they were eligible for the latest amnesty. (After the 1986 amnesty, the INS identified a whopping 398,000 cases of fraud.)
Past amnesties have also aided terrorists. Mahmud Abouhalima, a leader of the 1993 World Trade Center bombing, was legalized under the 1986 amnesty (via a provision for seasonal agricultural workers, though he was a New York cabdriver). This let him travel abroad and return to America, including trips to Pakistan and Afghanistan for terrorist training.
The activists also demand that the delays for immigration benefits be shortened. No question: These are too long. Despite improvements since President Bush took office, an application to reunite a husband and wife still averages nearly two years to process. Reuniting parents with children takes more than three years.
But this points to a problem with their first demand: Amnesty for millions of illegals would increase the delays for those who obey the law.
All amnesties require case-by-case interviews and documentation to review each applicant's eligibility. Short of an unlikely infusion of tens of billions of dollars into the process, and the hiring of thousands of new federal immigration officers (which would take years), a massive new amnesty would vastly increase delays across the board.
Page 206 PREV PAGE TOP OF DOC The third item on the activists' shopping list is driver's licenses for illegal aliens - a problem for law enforcement and national security.
The driver's license is the basic identity document in American society. Present one, and no further questions are asked. On our northern border, it's an effective substitute for a U.S. passport.
Making licenses available to illegal aliens entails a huge loss of security. States that let illegals acquire driver's licenses must necessarily reduce the level of documentation they require (something recently proposed in the New York state Assembly). Those lax standards make it easier for criminals to create false identities backed up by the imprimatur of a driver's license.
Worse, the driver's license becomes a useful tool for terrorists. Virginia issued licenses to eight of the 9/11 terrorists - which they likely used to board the airplanes on that fateful day. Since it is plainly a matter of national security in the post-9/11 era, Congress should consider stripping highway funds from states that do grant drivers' licenses to illegals.
The 9/11 killers exploited numerous weakness in the enforcement of our immigration laws. We have since corrected many of those vulnerabilities, but others remain. And the ''Freedom Ride'' activists' agenda would undo many of the gains.
Legal, orderly immigration is a positive force that has invigorated our country, our culture, and our economy for centuries. But there is no justification for illegal immigration. For an even greater force lies at the core of America's heritage and success - the rule of law.
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Kris W. Kobach, a law professor at the University of Missouri-Kansas City, served as counsel to Attorney General John Ashcroft in 20012003. He is now running for the U.S. Congress in the 3rd District of Kansas.
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WRITTEN TESTIMONY OF GROVER NORQUIST, PRESIDENT OF AMERICAN FOR TAX REFORM.
Chairman Hostettler and other members of this committee, thank you for the opportunity to address you regarding H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act.
My name is Grover Norquist and I am president Americans For Tax Reform (ATR), a non-partisan, not-for-profit non-partisan coalition of taxpayers and taxpayer groups who oppose all federal and state tax increases. I submit my comments to you today in strong opposition to forcing state and local law enforcement to enforce federal immigration laws.
In April 2002, the Justice Department attempted to force state and local police into enforcing civil immigration laws. This proposal was met by a firestorm of opposition from state and local law enforcement, elected officials, and other organizations over fears that if the policy became law, it will set a dangerous precedent with regard to the authority of state and local law enforcement agencies to enforce civil violations of many federal laws. Fortunately, the Department of Justice listened to the expressed concerns and backed off of their original proposal.
Despite the Justice Department's decision not to implement this policy, Representative Charles Norwood (R-GA) introduced the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act (H.R. 2671) in the House on July 9, 2003. The legislation forces state and local law enforcement personnel to enforce federal immigration laws. Furthermore, it starts the United States on a path towards establishing a National Police Force.
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I will outline the taxpayer's concerns with this proposal, and explain our opposition to the expansion of federal law enforcement duties to state and local police forces.
H.R. 2671 legislates the legal authority of police to enforce federal civil immigration laws (currently state and local police may only enforce criminal immigration laws, except in very specific circumstances), and requires them to either do so or lose certain federal funds. The bill further encourages police participation by awarding them assets seized from undocumented immigrants, permitting them to seek funds from the federal government for failure to pick up undocumented immigrants, and granting them limited immunity from lawsuits.
The bill also mandates the entry of civil immigration information into the National Crime Information Center (NCIC) database (a database of wanted persons maintained by the FBI for local law enforcement use). By inputting potentially millions of names of people with civil immigration law violations in the NCIC, this bill proposes a sweeping expansion of the scope of NCIC, and severely undermines its manageability.
I will now explain several of the concerns that myself and members of the Center-Right Coalition have with the CLEAR Act and the implications passage and enactment of the law will have on local law enforcement. I addition, I would like to submit a letter signed by myself, Former Member of Congress Bob Barr, and David Keene, President of the American Conservative Union.
Expansion of Federal Immigration Responsibilities Harms Local Law Enforcement's Efforts to Enhance National Security
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National security experts and state and local law enforcement agree that good intelligence and strong relationships are the keys to keeping our nation and streets safe. Mechanisms already exist in current law to foster cooperation between local law enforcement and federal agents when these types of partner ships are required partnerships are required.
For example, in 1996, Congress amended the Immigration and Nationality Act to provide an appropriate forum for state and federal cooperation in the enforcement of federal immigration laws. Congress authorized the Attorney General to enter into a written agreement with a state or local, government under which local law enforcement officers could perform the functions of an immigration officer. These agreements would require that the local police officers receive appropriate training in federal immigration law, and that they perform these functions under the supervision of the Attorney General. Operating under this statute, the Attorney General can work with local authorities under conditions that ensure proper training and that preserve the exclusive authority of the federal government over immigration matters.
New Job Duties Increase the Burden on State and Local Law Enforcement
The number one priority of local police is ensuring public safety. Crime solving and prevention should not take a back seat to immigration law enforcement or any other federal mandate. Adding immigration law enforcement to the job duties of local law enforcement diverts much-needed resources, and is at cross-purposes with their main goal: ensuring the safety and security of the communities they have pledged to serve.
Because of the complexity and nuances involved, immigration law enforcement is an expensive proposition. It requires extensive training of agents unfamiliar with federal immigration law.
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The responsibilities of state and local police have increased immensely after the September 11th terrorist attacks, and they simply do not have extra time on their hands to take on what is rightly a federal duty. Federal immigration law is even more complex that the U.S. tax code, and enforcement of such should remain with the federal agents trained in these matters. Forcing state and local law enforcement agencies to enforce federal immigration laws will make police's primary job-investigating, solving, and preventing real crimes-even harder.
Undermines State and Local Governments
Expanding the responsibilities of federal immigration officers onto state and local police forces runs roughshod over state and local governments. The federal government uses threats of decreased or eliminated federal funding in order to force local governments into participating in this program. Many state and local government bodies have passed laws and city council ordinances, preventing the deputization of local police as immigration agents.
Since September 11th, resolutions and laws prohibiting civil immigration law enforcement by state and local police have passed in over twenty localities. These local governments understand that, even with the challenges of waging an international war on terrorism, turning police into immigration agents is not the solution to fixing our current immigration problem.
Forcing Immigration Law Enforcement Duties onto State and Local Police Is Unneeded and Unnecessary Law-Making
Page 212 PREV PAGE TOP OF DOC As I mentioned earlier, mechanisms already exist within current law to foster cooperation between local law enforcement and federal immigration agents. Several states and localities have entered into memorandums of understanding (MOUs) with the federal government, to confer civil immigration law enforcement powers on their local officers. These MOUs encourage important safeguards, including the training of local agents in immigration law. An MOU is currently in place in Florida, and others are being negotiated around the country. Congress should not override these safeguards by allowing any local police officer in the nation to enforce civil immigration laws, with no training or safeguards in place.
It is important to note that local police already have the right and duty to enforce criminal law-this includes criminal immigration law violations and other crimes committed by foreign nationals. Legislation is simply not needed in order to confer these powers upon state and local law enforcement. State and local police are also currently authorized to notify federal immigration agents about arrests of foreign nationals for crimes they have (or are suspected of having) committed. This ability is fully consistent with the public safety role of police.
It is unrealistic to ask local police to take on the variety of specialized law enforcement functions currently the responsibility of the federal government. The legislation that has been introduced places an unmanageable burden on local law enforcement by forcing state and local governments to pay their police forces to do the jobs of federal law enforcement agencies, raising questions, by the way, of the federal Anti-Deficiency Act.
Page 213 PREV PAGE TOP OF DOC In order to ensure that state and local law enforcement agencies comply the federal government uses financial incentives and penalties to force them to take on the responsibilities of federal immigration personnel. In fact, the legislation introduced in the House of Representatives will discontinue federal funding to states and localities if they do not implement statutes explicitly authorizing their law enforcement to enforce immigration laws within two years after the bill's enactment.
Passage of this legislation will represent a dramatic shift that is likely to damage local law enforcement, while raising troubling new questions about the intersection of local law enforcement and federal law.
I along with members of the Center-Right Coalition support the efforts of Congress and this Administration to fight terrorism at home and abroad. However, Congress should not implement sweeping and unnecessary policy changes that place us on the path towards creating a Federal Police Force, and which clearly violate principles of federalism on which our Republic was founded and would cost taxpayers large sums of money to implement or will the program will become an unfunded mandate.
Thank you for the opportunity to submit my testimony.
September 22, 2003
The Honorable George W. Bush
Page 214 PREV PAGE TOP OF DOC President, United States of America
The White House
1600 Pennsylvania Avenue
Washington, D.C. 20500
Dear Mr. President:
We are writing to express our concern over the July 9, 2003 introduction of H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal Act, or CLEAR Act of 2003. The legislation forces state and local law enforcement personnel to enforce federal immigration laws. It starts the United States on a path towards establishing a National Police Force.
In the wake of the terrorist attacks on September 11th, 2001 and in the name of Homeland Security, some Members in Congress are attempting to force local law enforcement agencies to enforce federal immigration laws. To do this, however, these Members are taking the position that state and local law enforcement agencies have the power and perhaps even an obligation to seek out and to apprehend those who violate federal civil as well as criminal laws.
We are convinced that should the CLEAR Act become law, it will set a dangerous precedent with regard to the authority of state and local law enforcement agencies to enforce civil violations of many federal laws. If, as this bill requires, local police enforce our immigration laws, the next logical step is to require them to seek out and apprehend those who violate any and all federal laws. This would lead to the nationalization of local law enforcement.
This is not just bad policy, it is not really needed. Mechanisms already exist to foster federal-local law enforcement cooperation.
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For example, in 1996, Congress amended the Immigration and Nationality Act to provide an appropriate forum for state and federal cooperation in the enforcement of federal immigration laws. Congress authorized the Attorney General to enter into a written agreement with a state or local, government under which local law enforcement officers could perform the functions of an immigration officer. These agreements would require that the local police officers receive appropriate training in federal immigration law, and that they perform these functions under the supervision of the Attorney General. Operating under this statute, the Attorney General can work with local authorities under conditions that ensure proper training and that preserve the exclusive authority of the federal government over immigration matters.
The CLEAR Act will also place an unmanageable burden on local law enforcement by forcing state and local governments to pay their police forces to do the jobs of federal law enforcement agencies, raising questions, by the way, of the federal Anti-Deficiency Act. Furthermore, in order to ensure that state and local law enforcement agencies comply with the CLEAR Act, the bill includes several financial incentives and penalties for failing to do so. In fact, the legislation will discontinue federal funding to states and localities if they do not implement statutes explicitly authorizing their law enforcement to enforce immigration laws within two years after the bill's enactment.
We believe that the CLEAR Act represents a dramatic shift which is likely to damage local law enforcement, while raising troubling new questions about the intersection of local law enforcement and federal law. We support the efforts of Congress and this Administration to fight terrorism at home and abroad. However, Congress should not implement sweeping and unnecessary policy changes that place us on the path towards creating a Federal Police Force, and which clearly violate principles of federalism on which our Republic was founded.
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President, Americans for Tax Reform
President, American Conservative Union
The Honorable Bob Barr
Former Member of Congress
American Conservative Union Foundation
cc: The Honorable Charlie Norwood
U.S. House of Representatives
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(Footnote 1 return)
See ATTORNEY GENERAL'S REMARKS ON THE NATIONAL SECURITY ENTRY-EXIT REGISTRATION SYSTEM, Washington, D.C., June 6, 2002.
(Footnote 2 return)
See Eriwin Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND PRACTICE 166, 282 (1997).
(Footnote 3 return)
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
(Footnote 4 return)
See id., at 88586 (holding that arrest violated Fourth Amendment because officers could not justify stop of car based only on ''the apparent Mexican ancestry of the occupants.'')
(Footnote 5 return)
See, e.g. Carrasca v. Pomeroy, 313 F.3d 828, 83536 (3rd Cir. 2002) (refusing to ''summarily dismiss'' claim that arrest ''was based solely on Plaintiffs' appearance as Mexicans . . . further bolstering their racial profiling claim.'')
(Footnote 6 return)
The National Immigration Forum has posted on its website a list of statements by local and state police from across the country, all opposing any attempt to enlist them in the enforcement of immigration laws. See Opposition to Local Enforcement of Immigration Laws, updated October 1, 2002, available at: http://www.immigrationforum.org/currentissues/articles/100102quotes.htm
(Footnote 7 return)
See Eric Schmitt, Two Conservatives Tell Bush They Oppose Plan for Police, N.Y. Times, June 2, 2002; Letter from Raymond Flynn, David Keene and Grover Norquist to President Bush, May 30, 3003, available at: http://www.immigrationforum.org/currentissues/articles/060302doj.htm
(Footnote 8 return)
Hines v. Davidowitz, 315 U.S. 52, 6667 (1941) (striking down separate Pennsylvania scheme for registration of non-citizens, where federal government had already put in place such a scheme).
(Footnote 9 return)
See Letter from White House Counsel Alberto R. Gonzalez to Migration Policy Institute, June 24, 2002, available at: http://www.migrationpolicy.org/files/whitehouse.pdf
(Footnote 10 return)
Margie McHugh, Executive Director of the New York Immigration Coalition, testimony before the Governmental Operations Committee and the Subcommittee on Immigration, New York City Council, May 5, 2003.
(Footnote 11 return)
(Footnote 12 return)
Tampa Tribue, ''Police Appeal For Clues In Slaying Of Mom, Son,'' Natashia Gregoire, July 22, 2003.