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SOLVING THE OTM UNDOCUMENTED

ALIEN PROBLEM: EXPEDITED REMOVAL FOR

APPREHENSIONS ALONG THE U.S. BORDER

HEARING

BEFORE THE

SUBCOMMITTEE ON ECONOMIC 

SECURITY, INFRASTRUCTURE 

PROTECTION, AND CYBERSECURITY

OF THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

SEPTEMBER 28, 2005

Serial No. 109–43

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html
COMMITTEE ON HOMELAND SECURITY 

PETER T. KING, New York, Chairman 

DON YOUNG, Alaska 

LAMAR S. SMITH, Texas 

CURT WELDON, Pennsylvania 

CHRISTOPHER SHAYS, Connecticut 

JOHN LINDER, Georgia 

MARK E. SOUDER, Indiana 

TOM DAVIS, Virginia 

DANIEL E. LUNGREN, California 

JIM GIBBONS, Nevada 

ROB SIMMONS, Connecticut 

MIKE ROGERS, Alabama 

STEVAN PEARCE, New Mexico 

KATHERINE HARRIS, Florida 

BOBBY JINDAL, Louisiana 

DAVE G. REICHERT, Washington 

MICHAEL MCCAUL, Texas 

CHARLIE DENT, Pennsylvania 

GINNY BROWN-WAITE, Florida 

BENNIE G. THOMPSON, Mississippi 

LORETTA SANCHEZ, California 

EDWARD J. MARKEY, Massachusetts 

NORMAN D. DICKS, Washington 

JANE HARMAN, California 

PETER A. DEFAZIO, Oregon 

NITA M. LOWEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

ZOE LOFGREN, California 

SHEILA JACKSON-LEE, Texas 

BILL PASCRELL, JR., New Jersey 

DONNA M. CHRISTENSEN, U.S. Virgin Islands 

BOB ETHERIDGE, North Carolina 

JAMES R. LANGEVIN, Rhode Island 

KENDRICK B. MEEK, Florida 

SUBCOMMITTEE ON ECONOMIC SECURITY, INFRASTRUCTURE PROTECTION, AND

CYBERSECURITY

DANIEL E. LUNGREN, California, Chairman 

DON YOUNG, Alaska 

LAMAR S. SMITH, Texas 

JOHN LINDER, Georgia 

MARK E. SOUDER, Indiana 

TOM DAVIS, Virginia 

MIKE ROGERS, Alabama 

STEVAN PEARCE, New Mexico 

KATHERINE HARRIS, Florida 

BOBBY JINDAL, Louisiana 

PETER T. KING, New York (Ex Officio) 

LORETTA SANCHEZ, California 

EDWARD J. MARKEY, Massachusetts 

NORMAN D. DICKS, Washington 

PETER A. DEFAZIO, Oregon 

ZOE LOFGREN, California 

SHEILA JACKSON-LEE, Texas 

BILL PASCRELL, JR., New Jersey 

JAMES R. LANGEVIN, Rhode Island 

BENNIE G. THOMPSON, Mississippi (Ex Officio)

(II) 
(III)

C O N T E N T S

Page 

STATEMENTS

The Honorable Daniel E. Lungren, a Representative in Congress From the 

State of California, and Chairman, Subcommittee on Economic Security, 

Infrastructure Protection, and Cybersecurity: 

Oral Statement ..................................................................................................... 1

Prepared Statement ............................................................................................. 4

The Honorable Loretta Sanchez, a Representative in Congress From the 

State of California, and Ranking Member, Subcommittee on Economic 

Security, Infrastructure Protection, and Cybersecurity .................................... 4 

The Honorable Mark E. Souder, a Representative in Congress From the 

States of Indiana .................................................................................................. 19

WITNESSES 

Mr. David V. Aguilar, Chief, Border Patrol, U.S. Customs and Border 

Protection, Department of Homeland Security: 

Oral Statement ..................................................................................................... 8

Prepared Statement ............................................................................................. 9

Mr. Daniel W. Fisk, Deputy Assistant Secretary, Bureau of Western 

Hemisphere Affairs, U.S. Department of State: 

Oral Statement ..................................................................................................... 14 

Mr. John Torres, Acting Director, Office of Detention and Removal 

Operations, Immigration and Customs Enforcement, Department of 

Homeland Security: 

Oral Statement ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

FOR THE RECORD

The Honorable Sheila Jackson-Lee, a Representative in Congress From the 

State of Texas: 

Prepared Statement ............................................................................................. 7

Questions for Mr. David Aguilar and John P. Torress ......................................... 22

Questions for Daniel W. Fisk .................................................................................. 34 

(1)

SOLVING THE OTM UNDOCUMENTED 

ALIEN PROBLEM: EXPEDITED REMOVAL FOR 

APPREHENSIONS ALONG THE U.S. BORDER 

Wednesday, September 28, 2005

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOMELAND SECURITY, 

SUBCOMMITTEE ON ECONOMIC SECURITY, 

INFRASTRUCTURE PROTECTION, AND CYBERSECURITY, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:07 p.m., in Room 

311, Cannon House Office Building, Hon. Dan Lungren [chairman 

of the subcommittee] presiding. 

Present: Representatives Lungren, Souder, Rogers, and Sanchez. 

Mr. LUNGREN. [Presiding.] The Committee on Homeland Security, Subcommittee on Economic Security Infrastructure Protection 

and Cybersecurity, will come to order. 

The subcommittee is meeting today to hear testimony on how the 

expedited removal program will enhance DHS’s capabilities to detain and remove non–Mexican aliens from the U.S. 

First of all, I would like to begin by thanking all of our witnesses 

for coming to testify on this important topic. 

Let me say at the outset that I commend the administration and 

the Department of Homeland Security for its recent policy announcement to begin the implementation of expedited removal in 

all Border Patrol sectors along the southwest border of the United 

States. 

We call this hearing today to make clear that the successful execution of this program is vital for our nation’s homeland security. 

When the president established the Office of Homeland Security 

in October of 2001, he made its first responsibility to produce a national strategy for homeland security. In this strategy, which was 

issued in July of 2002, he called on the United States to ‘‘rethink 

and renovate fundamentally its systems for border security.’’ The 

mobility and destructive intent of modern terrorism insists that we 

must complete this task with a real sense of urgency, and, frankly, 

I find the sense of urgency lacking as we move to secure our borders. 

We are here today to ensure that the appropriate resources and 

training exist within and across those agencies that are tasked 

with this important mission. Not only does the Border Patrol need 

to expand the use of expedited removal procedures, but there must 

also be adequate detention space to hold those who are apprehended. Necessary country clearances and travel documents must 
2

be obtained in a timelier fashion so that those undocumented 

aliens may be returned to their home countries more expeditiously. 

In the past 3 years, the apprehension of undocumented aliens 

from countries other than Mexico, commonly referred to as ‘‘other 

than Mexicans,’’ or OTMs, has more than tripled, increasing by 220 

percent. The Congressional Research Service has also reported that 

approximately 70 percent of OTMs are being released pending immigration removal proceedings, and that approximately 63 percent 

of those released never appear in court. As a matter of fact, I have 

heard that the percentage is much, much higher than that. 

This is not something that is hidden to the American people. 

There have been stories, reports on television of this, and the reaction of the American people has been, as you would expect it, that 

it is unacceptable. 

These individuals, of course, if they do not show up, remain in 

the U.S. undetected. Included among these undocumented aliens 

are many from special interest countries, including Afghanistan, 

Iran, Iraq and other countries which we know to be state sponsors 

of terrorism. This policy, as it has been described on television and 

other places as ‘‘catch and release’’, was simply not working. It is 

also totally unacceptable. 

At a time in our nation’s history when there are terrorists who 

wish to infiltrate our borders for the purpose of inflicting harm on 

any American, our own policies have created a system that apparently encourages more undocumented aliens to enter the U.S. illegally. It is my belief that it is this system of border security that 

the president intended us to reexamine in the post–9/11 world. It 

is also my belief that this system of border security allows potential 

terrorists to enter the U.S. between our ports of entry and slip into 

our society undetected, especially as we harden other legitimate 

means of entry. 

Congress has taken steps to address this issue over the past 

year. In December 2004, the Intelligence Reform and Terrorism 

Prevention Act was signed into law and authorized an increase in 

detention and removal operation bed space by 8,000 beds each year 

from fiscal year 2006 through 2010 for a total increase of 40,000 

detention beds. 

Congress also provided funding for an additional 1,950 beds in 

the Emergency Supplemental Appropriations Act in May of 2005, 

and both the House and Senate versions of the fiscal year 2006 

DHS Appropriations Act provide funding for approximately 2,000 

beds for a total bed space increase in fiscal year 2006 of nearly 

4,000 beds. 

We have with us today Chief Aguilar of the Border Patrol who 

will testify that the results of using expedited removal in three 

Border Patrol sectors beginning last year have been dramatic. 

Since September 2004, the Border Patrol has placed 34,000 aliens 

in expedited removal proceedings with approximately 20,000 of 

those having already been removed. 

The expedited removal of undocumented alien takes an average 

of 30 days versus the standard 89 days that it usually takes for removal of an alien without the expedited process. While this is an 

improvement, I think some would suggest that a month is still too 

long. Delays are exacerbated by the length of time it takes to ob-
3

tain travel clearances from the OTMs countries of origin. Those 

placed in expedited removal must be detained during the entire 

timeframe, which stresses our already burdened detention bed 

space. 

The additional beds coming online in October will certainly help, 

but we also need to better manage already existing bed space. During a recent trip by members of this committee to the southwest 

border, it was found that at least one detention and removal operations facility was operating well under its bed space capacity. It 

is just unacceptable that this could happen during a time of crisis 

in our immigration system. We need to be using every bed to gain 

control of the problem of undocumented aliens and in particular 

the problem with OTMs. 

Expedited removal also has the potential to benefit other agencies, such as ICE and the Department of Justice. If we are successful in removing undocumented aliens before they disappear into 

our communities, obviously it will save precious time and resources 

that are being used on the back end by the U.S. Immigration Customs Enforcement to, again, apprehend them and for the Department of Justice’ immigration court system to formally process 

them. 

So I look forward to hearing from Director Torres about how ICE 

plans to coordinate with both the CBP and the State Department 

in expedited removal proceedings. 

We will also hear testimony today from the State Department 

about the obstacles presented by foreign governments when they 

are requested by the United States to issue certain travel documents in order to repatriate OTMs in their home country. My understanding is that such countries have an obligation under international law to accept their nationals for repatriation. 

We look forward to asking the State Department what it is doing 

and what it plans to do to obtain more cooperation from foreign 

governments to eliminate such obstacles. 

The Immigration Nationalities Act provides a remedy for non-cooperation by foreign governments in section 243(d), which states 

that the Secretary of State, in her discretion, may discontinue 

granting visas to nationals of a country denying or delaying accepting an alien. 

Now, I understand we do not want to upset other countries, but 

I do not understand when it hurts us why we are so reticent to exercise the authority given by the Congress through legislation. The 

removal of OTMs from the United States should be as much a priority of the State Department as it is for the Department of Homeland Security and the Congress, and we would like to explore if the 

State Department will more aggressively use this authority given 

to them by the Congress. 

Again, I would like to thank our witnesses for appearing before 

the committee today. I want them to take away a message that 

while the Border Patrol can announce new steps to address the 

OTM problem, there must be cooperative efforts from ICE and the 

State Department in order for there to be a successful and timely 

transition from the policy of catch and release to one of ‘‘catch and 

return.’’
4

I would like to remind our witnesses of the urgent nature of this 

task. I am looking forward to hearing from each of them today and 

how each agency will do its part.

PREPARED OPENING STATEMENT OF HON. DANIEL E. LUNGREN

Good afternoon, I would like to begin today by thanking all of our witnesses for 

coming to testify about this very important topic. 

Let me say at the outset that I want to commend the Administration and the Department of Homeland Security for taking steps to move in the direction Congress 

has demanded, with its recent policy announcement that expedited removal will be 

implemented in all border patrol sectors along the southwest border of the United 

States. 

However, the reason for this hearing today is that we must insist on this program?s successful implementation. Not only does the Border Patrol need to expand 

the use of expedited removal procedures to more apprehensions occurring along our 

borders, but there also must be adequate detention space to hold those apprehended 

and subject to expedited removal. And there must be further efforts made to obtain 

the necessary country clearances and travel documents in a timelier manner, in 

order to return undocumented aliens to their home countries more expeditiously. 

There has been a dramatic increase in aliens, commonly referred to as ‘‘Other 

than Mexicans’’ or OTMs, illegally entering the U.S. and being apprehended by U.S. 

Border Patrol agents. In a recently issued report by the non-partisan Congressional 

Research Service, it was found that apprehensions of OTMs have more than tripled 

over the past three years—increasing by an astounding 220%. CRS also reported 

that approximately 70% of OTMs are being released pending immigration removal 

proceedings and that approximately 63% of those released never appear in court. 

They instead remain in the U.S. undetected. Included among these aliens are many 

from ‘‘special interest countries,’’ including Afghanistan, Iran and Iraq, and other 

countries known to be state sponsors of terrorism. 

This current policy of ‘‘catch and release,’’ as it has been called, is simply not 

working and, frankly, is unacceptable. At a time in our Nation?s history where there 

are terrorists who wish to infiltrate our borders and do us serious harm, our own 

policies have created a system that in fact encourages more undocumented aliens 

to enter the U.S. illegally. It is only a matter of time before terrorists will enter 

the U.S. between our ports of entry and slip into our society undetected, especially 

as we harden other legitimate means of entry. In fact, terrorists may already have 

done so. This policy must change—and I understand that the Administration is 

working hard to end this ‘‘catch and release’’ practice. I am looking forward to hearing from our witnesses today about how each agency will do its part to bring about 

such change. 

Congress also took steps to address this issue over the past year. In December 

2004, the Intelligence Reform and Terrorism Prevention Act was signed into law 

and authorized an increase in Detention and Removal Operations (DRO) bed space 

by 8,000 beds each year from Fiscal Year (FY) 2006 through FY 2010, for a total 

increase of 40,000 detention beds. Congress then provided funding for an additional 

1,950 beds in the Emergency Supplemental Appropriations Act in May 2005; and 

both the House and Senate versions of FY 2006 DHS Appropriations Act provides 

funding for another 2000 or so beds, for a total bed space increase in FY 2006 of 

nearly 4000 beds. 

We have with us today Chief Aguilar of the Border Patrol, who will testify that 

the results of using expedited removal in three border patrol sectors beginning last 

year have been dramatic. Since September of 2004, Border Patrol has placed 34,000 

aliens in Expedited Removal proceedings, with approximately 20,000 of those having 

already been removed. 

The good news is that placing an alien in expedited removal takes an average of 

roughly 30 days for the alien to be removed, versus an average of 89 days that it 

takes for removal of an alien through the regular process. But the downside is that 

it still takes about a month to conduct so-called ‘‘expedited’’ removal—mainly because of delays in obtaining travel clearances from the OTMs’ countries of origin—

and that those placed in Expedited Removal must be detained during that entire 

timeframe, which stresses our already over-burdened detention bed space. 

The additional beds coming on line in October will certainly help. But we also 

need to better manage already existing bed space. During a recent trip by members 

of this Committee to the southwest border, a DRO facility was found to be operating 

well under its bed space capacity. This should not happen during this time of crisis 
5

in our immigration system. We need to be using every bed to gain control of the 

problem of undocumented aliens and, in particular, this problem with OTMs. 

Expedited removal also has the potential to benefit other agencies, such as ICE 

and the Department of Justice. If we are successful in removing these folks before

they disappear into our communities, we then do not have to expend precious resources on the back end for U.S. Immigration and Customs Enforcement (ICE) to 

again apprehend them and for the Department of Justice’s immigration court system to formally process them. We look forward to hearing from Director Torres 

about how ICE plans to coordinate with both CBP and the State Department in expedited removal efforts. 

We will also hear testimony today from the State Department about the obstacles 

presented by foreign governments when they are requested by the United States to 

issue certain travel documents in order to repatriate OTMs to their home country. 

It is my understanding that such countries have an obligation, under international 

law, to accept their nationals for repatriation. I look forward to asking the State Department what it has done and what it plans to do to obtain more cooperation from 

foreign governments to eliminate such obstacles. 

The Immigration and Nationality Act provides a remedy for non-cooperation by 

foreign governments in section 243(d), which states that the Secretary of State, in 

her discretion, may discontinue granting visas to nationals of a country denying or 

delaying accepting an alien. However, it appears that this authority has been used 

sparingly, if at all. The removal of OTMs from the United States should be as much 

of a priority for the State Department as it is for the Department of Homeland Security and the Congress, and I am curious to learn whether the State Department 

will more aggressively use the 243(d) sanction authority in the future. 

Again I want to thank our witnesses for appearing before the Committee today, 

and want them to take away the message that, while the Border Patrol can announce new steps to address the OTM problem, there must be a cooperative efforts 

from ICE and the State Department for this new policy of ‘‘catch and return’’ to 

work.

Mr. LUNGREN. It is now my pleasure to recognize the Ranking 

Member, Ms. Sanchez from California, for her opening statement. 

Ms. SANCHEZ. Thank you, Mr. Chairman, and thank you for calling this hearing. 

And I would like to thank the witnesses we have before us for 

your testimony today. 

I think that this is a very important opportunity for us to focus 

on the Department of Homeland Security’s plan to address the 

problems associated with the policy of releasing other than Mexican, or OTM, individuals who enter the United States illegally. As 

a representative of a border state, I know all too well how important it is for our citizens and to legal immigrants that we institute 

policies that secure our borders and our ports of entry from illegal 

entry. 

CRS reports that al-Qa’ida has begun considering infiltrating the 

southwest border due a belief that illegal entry is more advantageous than legal entry into our country, and that is a big issue 

for many of us who are looking at border security and trying to figure out from a homeland perspective what we can do better. 

It seems to me that the catch and release policy is not in the best 

of homeland security, and that is why I am glad to see that we are 

looking at catch and return to replace it. But it is my understanding that the previous policy resulted from a serious shortage 

in detention space. And I think if this new approach is going to 

succeed, that we have to have the right resources in order for you 

to do your work. We need that space, and I know that the administration and the Congress that we need to get serious about how we 

provide DHS these resources. 

One of the most basic needs for implementing the catch and return policy is increasing the number of detention bed spaces avail-
6

able, as Mr. Lungren so eloquently talked about in his statement. 

So we are looking at urging the administration and the Congress 

to take immediate steps to enhance DHS border security resources 

to the levels called for by the 9/11 Act by actually annually adding 

the following over the next 5 fiscal years: Increasing additional detention bed spaces from 4,000 to 8,000, adding additional 800 ICE 

agents instead of 200 and providing 2,000 additional Border Patrol 

agents as opposed to 1,500. 

I think we need to provide our state and local law enforcement 

officials with adequate funding for their work enforcing our immigration laws and detaining criminal aliens. Unfortunately, funding 

for the State Criminal Alien Assistance Program, or SCAAP, as we 

have looked at over the last few years, has been not funded. I know 

that every year we Californians sign a letter together, I think most 

of us if not all 53, asking the Congress to fully fund these programs. 

And as you can see from this chart here, which I want to submit 

for the record, Mr. Chairman, it shows that the funding has been 

cut nearly 50 percent since 9/11. The administration has reduced 

the funding reimbursement to California by more than $100 million 

below the pre-9/11 funding levels. 

Congress and the administration also need to look beyond shortterm policy changes as a solution and look to more comprehensive 

border security strategies. That would be deploying appropriate resources and technology at our land borders and our other ports of 

entry, because it is not just our land borders where people are coming in; implementing vigorous work site enforcement through the 

mandatory use of more reliable employment verification systems 

and the sanctioning of employers for hiring illegal workers and 

passing real immigration reform that focuses on border security interior enforcement and the needs of our business communities and 

the immigrants who desire to work legally here in the United 

States. 

All of this, I think, requires collaboration between the Department of Homeland Security and the Department of State, and that 

is why it is so exciting to see you, Mr. Fisk, here today as a representative of State. We thought we would not have you today, and 

I am glad you did come, because I think it is very important for 

us to hear the struggles that you have in trying to make these 

agreements with other foreign governments so that we can make 

sure that that part of the equation is in sync. 

Unfortunately, I also have a review going on right now, a threat 

assessment in the Military Committee, on which I am on a panel 

that has been doing a lot of work the last 2 weeks, and I am going 

to have to cut out at some point. So I may not get to the question 

and answer, but I hope that each of you will discuss with us your 

concerns and give us some ideas about what needs to change so we 

can get this done correctly. 

Thank you, Mr. Chairman. 

Mr. LUNGREN. Thank you very much. 

The other members are reminded that they have an opportunity 

to place their statement in the record.
7

FOR THE RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON-LEE

In FY 2004, United States Border Patrol (USBP) agents apprehended 1.16 million 

aliens attempting to enter the country illegally between official points of entry. Because 93% of the apprehended aliens are Mexican nationals, USBP categorizes the 

apprehended aliens a ‘‘Mexicans’’ or ‘‘Other Than Mexicans’’ (OTMs). 

OTMs apprehended along the Southwest border between official points of entry 

cannot be returned to Mexico voluntarily or under a removal order. The Mexican 

government will not accept them. They must be returned to their countries of origin, 

or to third countries that will accept them. The Office of Detention and Removal 

Operations (DRO) does not have the facilities to detain them. Over the past three 

years, OTM apprehensions have more than tripled. In FY2005, OTM apprehensions 

reached 119,182, on July 11th. The ones who cannot be detained must be released 

pending removal proceedings before an Immigration Judge, and few return for a 

hearing. 

According to a statement made by DRO Director Lee on June 7, 2005, the detention bed space within DRO is filled to capacity. The majority of those beds are filled 

with criminal aliens who have been transferred to DRO from county, state, and federal prisons. DRO has roughly 2,500 beds which are full but which are not occupied 

by criminal aliens, but the USBP is currently apprehending almost 12,000 OTMs 

every month. 

In an effort to deal more effectively with this problem, the Department of Homeland Security 9DHS) has expanded the use of expedited removal proceedings to locations between the points of entry. Expedited removal authority originated in section 

302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 

(IIRIRA). In expedited removal proceedings, a USBP agent makes an initial determination as to whether the apprehended person is an alien who entered the United 

States illegally without a visa or other valid entry document. If the officer determines that the person is an undocumented alien, the person is subject to removal 

without further proceedings unless he can establish a credible fear of persecution. 

Aliens who establish a credible fear of persecution are referred to an Immigration 

Judge for an asylum hearing. If the alien ultimately is removed as a result of either 

type of proceeding, he is barred for five years from returning. 

Expedited removal proceedings are substantially faster than ordinary removal 

proceedings, which involve a full hearing before an Immigration Judge. Once an 

OTM is placed in expedited removal process, it takes an average of 32 days for the 

alien to be removed. In comparison, it takes an average of 89 for an alien who is 

in regular removal proceedings. 

Consequently, the expanded use of expedited removal proceedings should help, 

but it is not a solution to the OTM problem. While OTMs placed in expedited removal are subject to mandatory detention, they will have to be released on their 

own recognizance in spite of that requirement if there are no detention facilities for 

them. 

We need more detention facilities, but that will not eliminate the problem entirely. This and other immigration enforcement problems will continue to spiral out 

of control until we fix our broken immigration system. We must enact comprehensive reform bills such as my Save America Comprehensive Immigration Act of 2005, 

H.R.2092. Thank you.

Mr. LUNGREN. And I would also say, Mr. Fisk, you probably did 

not realize how much we were looking forward to seeing you before 

you heard her statement. 

It is my opportunity now to recognize Mr. David Aguilar, the 

chief of the United States Border Patrol, U.S. Customs and Border 

Protection, Department of Homeland Security, to testify on how the 

Border Patrol uses the expedited removal process. 

And before you start, I would just remind all members of the 

panel that your written statements will appear in the record, and 

we would ask you to confine your comments to 5 minutes, please. 
8

STATEMENT OF DAVID AGUILAR 

Mr. AGUILAR. Thank you, Chairman Lungren, Ranking Member 

Sanchez, Congressman Rogers and other distinguished subcommittee members that may be coming in as we progress. 

I am extremely pleased to be here this afternoon to give testimony on Border Patrol operations and the detention of ‘‘other than 

Mexican’’ aliens encountered, detained and arrested by the U.S. 

Border Patrol, especially in the area of expedited removal, a new 

program that we have basically implemented and reinvigorated 

since September 19. 

The Border Patrol operates exclusively between the ports of 

entry and conducts in-depth enforcement operations in direct support of border enforcement as it relates to border security. Our 

agents conduct operations along our nation’s borders with Mexico 

and Canada and along our coastal areas, including the Texas Gulf 

coast, Florida and Puerto Rico. Our agents patrol over 6,000 miles 

of border. 

One of the things that I would like to very quickly touch on this 

afternoon is our recently revised Border Patrol national strategy 

and its six core elements which I think are absolutely essential to 

this hearing. 

One is securing the right combination of personnel, technology 

and infrastructure to help our agents do the job on the border. Two 

is improving mobility and rapid response to quickly counter any 

kind of shift or criminal organization activity that happens along 

our country’s borders—north, south or coastal; deploying defensein-depth that makes full use of interior checkpoints and applicability of enforcement efforts and transportation hubs, airports and 

other locations where the criminal element may try to exploit our 

nation’s arteries into the interior United States; partnerships with 

other law enforcement agencies absolutely critical to our success 

along our nation’s borders with Mexico and with Canada; improving border awareness and intelligence, some of which we are dong 

here today. It is absolutely essential that our country understand 

what is happening on our borders, and it is absolutely critical that 

we improve our intelligence capability. 

And one of the things that has helped us tremendously since the 

creation of DHS and the Customs and Border Protection is 

strengthening the headquarters command structure from Washington, D.C., in order to lend to the mobility and rapid response capability that is required in order to serve our nation along our 

country’s borders. 

The revised national strategy provides a road map for our organization’s continued expansion efforts and bringing operational control to our nation’s borders. Our centralized chain of command provides for a strategic application of existing and future resources 

and provides for the focused and long-term planning and evolution 

of our strategy based on risk management, threats and 

vulnerabilities. 

Our ability to focus efforts and resources magnifies the effect of 

our resources. An excellent example is what we are referring to as 

Arizona Border Control Initiative Phase II that is currently underway in Arizona, as we speak. Some very quick stats that I think 

will interest this subcommittee: 200 Border Patrol agents were 
9

moved into the Arizona border almost overnight in order to support 

this operation. We more than doubled the number of aerial platforms that were working in Arizona that are absolutely essential 

because of the vastness and remoteness of the area in which we operate. We have permanently reassigned over 160 Border Patrol 

agents with journeymen level experience in order to augment the 

experience base in Arizona. 

Working in conjunction with DRO out of ICE and ICE investigations, we have had tremendous successes. During this ABCI time 

period of this year, there has been a reduction of over 22 percent 

in the number of illegal entries into the Arizona area of operation. 

Mr. LUNGREN. Could I interrupt for just a moment? 

Mr. AGUILAR. Yes. 

Mr. LUNGREN. I just got notice, Mr. Rogers and Ms. Sanchez, 

that we have an emergency GOP conference at 3 o’clock, so our 

hearing is going to be cut a little bit short. So I just wanted to 

mention that. 

Mr. AGUILAR. I will do the same with mine, sir. 

Today, basically, I am delighted to report that as of September 

19 our nine southwest border sectors have implemented expedited 

removal. We are taking a measured, prudent and strategic approach to effective manage the available detention space for maximum deterrent effect, which is the outcome that we are looking for 

in the area of ‘‘other than Mexicans.’’

In closing, I would like to say that our job is nothing less than 

national security. This is not lost on the men and women of the 

U.S. Border Patrol. They are working very hard on a daily basis 

out there along our nation’s borders to protect America. The Border 

Patrol Customs and Border Protection and its men and women are 

committed to assertively and aggressively expand our operations to 

continue to build on our nation’s security. 

I thank the subcommittee for the opportunity to appear before 

you today and for your strong support of all the men and women 

at U.S. Customs and Border Protection. I would be honored to respond to any questions that you might have. 

Thank you, sir. 

[The statement of Mr. Aguilar follows:]

PREPARED STATEMENT OF DAVID AGUILAR

Chairman Lungren, Ranking Member Sanchez, and Other Distinguished Subcommittee Members, thank you for the opportunity to appear before you today to 

discuss the successes and challenges of border security on the southwest border and 

in particular the recent expansion of the Expedited Removal program, as demonstrated by the operations and law enforcement initiatives of the Office of Border 

Patrol, a component of U.S. Customs and Border Protection (CBP). My name is 

David Aguilar, and I am the Chief of the U.S. Border Patrol within CBP. 

CBP, as the guardian of the Nation’s borders, safeguards the homeland—foremost, 

by protecting the American public against terrorists and the instruments of terrorism; while at the same time enforcing the laws of the United States and fostering 

the Nation’s economic security through lawful travel and trade. Integral to this mission is the Border Patrol’s time-honored duty of interdicting illegal aliens and drugs 

and those who attempt to smuggle them across our borders between the Ports of 

Entry. We are concerned that terrorists, seeking to conduct attacks against the U.S. 

homeland, may exploit illegal human smuggling routes. Reducing illegal migration 

across our borders may help in disrupting possible attempts by terrorists to enter 

our country. 

CBP Border Patrol’s National Strategy has made a centralized chain of command 

a priority and has increased the effectiveness of our agents by using intelligence 
10

driven operations to deploy our resources. Partnerships with Immigration and Customs Enforcement (ICE), Department of the Interior, Department of Justice (DOJ), 

Drug Enforcement Administration, Federal Bureau of Investigation, Department of 

Transportation, other interagency partners, state, local, and tribal law enforcement 

agencies and state Homeland Security offices play a vital role in having and disseminating information and tactical intelligence that assists in a quick response, 

which is essential to mission success. 

Recognizing that we cannot control our borders by merely enforcing at the ‘‘line,’’ 

our strategy incorporates a ‘‘defense in depth’’ component, to include transportation 

checks away from the physical border. Checkpoints are critical to our patrol efforts, 

for they deny major routes of egress from the borders to smugglers intent on delivering people, drugs, and other contraband into the interior of the United States. 

Permanent checkpoints allow CBP Border Patrol to establish an important second 

layer of defense and help deter illegal entries through improved enforcement. 

CBP Border Patrol will continue to assess, develop, and deploy the appropriate 

mix of technology, personnel, and information sources to gain, maintain, and expand 

coverage of the border in an effort to use our resources in the most efficient fashion. 

Historically, major CBP Border Patrol initiatives, such as Operation Hold the 

Line, Operation Gatekeeper, and Operation Rio Grande in our El Paso, San Diego, 

and McAllen Sectors, respectively, have had a dramatic enforcement impact on illegal migration patterns along the southwest border, proving that operational control 

is possible. Together, they have laid the foundation for newer strategies and enforcement objectives and an ambitious goal to gain control of our Nation’s borders, particularly our border with Mexico. These initiatives continue to significantly affect illegal migration as we seek to bring the proper balance of personnel, equipment, 

technology, and infrastructure into areas experiencing the greatest level of crossborder illegal activity along our Nation’s borders between the Ports of Entry. 

Over the past few years, illegal migration patterns have shifted from an urban 

to a rural environment, presenting a different challenge to our interdiction efforts. 

As a result, the Arizona Border Control Initiative, currently in Phase Two, was introduced. CBP serves as the operational lead for ABCI, partnering with other DHS 

agencies, as well as other federal, state, local, and tribal law enforcement agencies, 

bringing together resources and fused intelligence into a geographical area that has 

been heavily impacted by smuggling activity. We continue to build a stronger relationship with the Government of Mexico, which continues to take helpful steps to 

stem the flow of OTMs, to create a safer and more secure border through the Border 

Safety Initiative and special repatriation programs. In doing so, we continue to enhance our ability to fight terrorism, illegal migration, and crime in that border area. 

DHS and the DOJ have partnered to develop the IDENT/IAFIS integrated 

workstation, which captures a single set of fingerprints and submits them simultaneously to DHS’ Automated Biometric Identification System (IDENT) and DOJ’s Integrated Automated Fingerprint Identification System (IAFIS) for identity checks. 

These integrated systems were deployed to all Border Patrol stations in 2004. With 

immediate access to IAFIS, our Agents have identified thousands of egregious offenders, including murderers, rapists, kidnappers, and drug traffickers, who otherwise may have gone undetected. This is a significant step towards improving national security and greatly enhancing our ability to secure our nation’s borders. 

The U.S. continues to experience a rising influx of other than Mexican nationals, 

or OTMs, illegally entering the country. For FY05, non-Mexican illegal aliens 

(NMIA), often referred to as OTMs, apprehensions are running at a rate of 136% 

over FY 04’s record number of OTM apprehensions on the southwest border, and 

119% over the record national FY 04 OTM apprehension figure of 75,389. Border 

Patrol processes all apprehended OTMs for removal proceedings. The growth in the 

apprehension of non-Mexican illegal entrant aliens, however, combined with other 

detention requirements, in many cases leads to their release on their own recognizance. 

To address this situation by expediting the removal process for OTMs, in August 

2004, DHS issued a Federal Register Notice allowing CBP Border Patrol Agents to 

place certain illegal aliens, apprehended between the ports of entry within 100 miles 

of the border and within 14 days of their illegal entry, into Expedited Removal (ER) 

proceedings. ER proceedings shorten the time spent in detention facilities and eliminate appearances before immigration courts and judges. ER was initially implemented in five Border Patrol sectors. Tucson and Laredo Sectors fully instituted the 

process, with San Diego, El Centro and Yuma Sectors using ER cases for aliens who 

would otherwise be subject to a reinstatement of prior orders of removal. 

ER is not a new procedure. It was created in the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996, and has been used at ports of entry since 

1997. Expedited Removal is a powerful tool that speeds the removal of aliens who 
11

are attempting to, or have entered the country illegally. When someone is placed 

in expedited removal processing, the person is detained and returned to his or her 

country as soon as circumstances will allow. This drastically shortens the typical detention period and can relieve pressure on detention resources. 

As with the implementation of expedited removal at ports of entry over the last 

nine years, special safeguards are in place. DHS has taken a measured and careful 

approach to the expansion of expedited removal, and has provided comprehensive 

training for our agents, to ensure that those who may have legitimate asylum 

claims will be referred to a Citizenship and Immigration Services (CIS) asylum officer. 

Aliens processed in expedited removal are required to be detained by law. This 

detention, and subsequent removal has had a large deterrent effect. Let me provide 

you with a specific example: the Rio Grande Sector was experiencing very large 

numbers of Brazilian-national apprehensions before the ER process was implemented. The Sector had been apprehending an average of 160 Brazilian nationals 

per day prior to the implementation of the ER process. On July 2, 2005, ER was 

introduced into the Rio Grande Valley Sector (formerly the McAllen Sector) to 

streamline the removal process. Within the first week Brazilian apprehensions 

started dropping precipitously, and now are averaging about 20 or less per day. 

This month, Secretary Chertoff approved expanding the use of ER to the remaining Southwest Border Sectors. DHS expects that ER, and the associated general 

rule of detention pending removal, will become a significant tool to deter future illegal migration between the ports of entry, particularly for non-Mexican illegal alien 

nationals who transit through Mexico. 

In closing, CBP Border Patrol is tasked with a very complex, sensitive, and difficult job, which historically has presented immense challenges. We face these challenges every day with vigilance, dedication to service, and integrity as we work to 

strengthen national security and protect America and its citizens. Mr. Chairman, 

I want to take this opportunity to thank you, as well as Ms. Sanchez, and each 

Member of this Subcommittee for your strong support of all of the men and women 

of U.S. Customs and Border Protection, including the Border Patrol. We appreciate 

your continuing commitment to border security and we are grateful for your support. I would be pleased to respond to any questions that you might have at this 

time.

Mr. LUNGREN. Thank you very much, Chief Aguilar. 

The chair now would recognize Mr. John Torres, acting director 

of the Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement of the Department of Homeland Security, to testify about the detention and removal capacity available for the expedited removal process. 

STATEMENT OF JOHN TORRES 

Mr. TORRES. Good afternoon, Chairman Lungren, Ranking Member Sanchez, Congressman Rogers and distinguished committee 

members. Thank you for the opportunity to address the role of immigration and customs enforcement in implementing that expedited removal program along the southwest border. 

I would like to begin my testimony by providing the subcommittee with a brief overview of detention and removal operations, mission and achievement. DRO’s mission is the apprehension, detention and removal of illegal aliens through the fair enforcement of our nation’s immigration laws. In fiscal year 2004, 

DRO reached unprecedented levels of removal. During that period, 

DRO officers removed 160,000 aliens, including over 85,000 criminals. In fiscal year 2005, as of July 31 of this year, DRO had removed more than 109,000 aliens, including almost 65,000 with 

criminal records. 

As part of our law enforcement mission, DRO is also responsible 

for managing bed space resources for detained aliens. During fiscal 

year 2004, ICE detained a daily average of almost 22,000 individ-
12

uals. Moreover, the past 2 fiscal years, DRO has maintained 100 

percent detention capacity. 

As I mentioned before, the ultimate goal of immigration enforcement is the removal of illegal aliens from the United States. The 

timely issuance of travel documents by foreign governments is critical to achieving this goal since DRO cannot remove aliens without 

proper travel documentation. Relying on the cooperation from the 

State Department, a key stakeholder in the arena of immigration 

enforcement, ICE continues to work with foreign government officials in order to expedite the issuance of travel documents. 

DRO is also improving the removal process through greater utilization of video teleconferencing, which allows foreign government 

embassy officials to interview their nationals from detention centers around the country. The Department of Homeland Security 

employs several tools in order to accomplish its mission in effective 

immigration enforcement. Expedited removal is one of those tools. 

E.R. allows detention and removal operations to quickly remove 

certain aliens who are either seeking entry or who have recently 

entered the U.S. illegally. Expedited removal applies to aliens who 

have no valid entry documents or who have fraudulent travel documents, are apprehended within 100 miles of the border and who 

cannot demonstrate that they have been present in the United 

States for more than 14 days following their illegal entry. 

Expanded expedited removal has primarily been directed toward 

nationals of other countries, of countries other than Mexico and 

Canada, primarily known as OTMs, ‘‘other than Mexicans,’’ and to 

a certain extent, Mexican and Canadian nationals with criminal 

backgrounds involved in alien smuggling or who have a history of 

repeated immigration violations. 

The Border Patrol initially implemented this expanded E.R. authority in the Tucson and Laredo sectors in September 2004. Additionally, from June through August of 2005, a focused enforcement 

operation was conducted in the Rio Grande Valley sector. On September 14 of this year, DHS expanded E.R. authority across the entire southwest border. As of September 5, over 17,000 aliens have 

been referred over to DRO and placed in an expedited removal proceeding, with over 14,500 of those being removed, roughly about 85 

percent. 

The E.R. process results in a final order of removal which prohibits reentry for a period of at least 5 years. This deters unlawful 

entry and makes it possible to pursue future criminal prosecution 

against those who continue to enter the United States in violation 

of the law. 

However, the most important benefit of expedited removal is that 

it streamlines the processing of inadmissible aliens, because individuals in E.R. proceedings are generally not entitled to a hearing 

before an immigration judge or eligible for release on bond unless 

they express a credible fear of return to their country. 

In fiscal year 2004, the average detention time for third country 

nationals and removal proceedings before an immigration judge, 

from section 240 of the Immigration Nationality Act, was 71 days. 

However, the average length of detention for those same third 

country nationals placed in the expedited removal proceedings who 

did not claim a credible fear was only 25 days. 
13

Expedited removal is an excellent tool to deter illegal migration, 

and mandatory detention ensures measurable progress toward 100 

percent removal rate. DRO and ICE fully supports the principle of 

expedited removal, as it deters foreign nationals without protection 

claims from illegally entering our country, ensures expeditious removal of illegal aliens present in the United States and reduces the 

growth of the absconder population. 

Deterring future entries and accelerating the removal of aliens 

will further enhance DHS’s ability to secure the border and to focus 

its resources on threats to public safety and national security. 

In conclusion, with the implementation of the expedited removal 

program, DRO has partnered with the Border Patrol in a DHS initiative designed to utilize our combined resources in order to secure 

the southwest border. By aggressively enforcing these laws, we will 

continue to seek to strengthen the legal immigration process for 

worthy applicants and deter criminal and terrorist organizations 

that threaten our way of life. 

Thank you for the opportunity to testify before you today, and I 

will gladly accept any questions you have. 

[The statement of Mr. Torres follows:]

PREPARED STATEMENT OF JOHN P. TORRES

INTRODUCTION 

Chairman Lungren, Ranking Member Sanchez, and distinguished Committee 

members, thank you for the opportunity to address the role of Immigration and Customs Enforcement (ICE) in implementing the Expedited Removal Program along the 

Southwest Border. I would like to begin my testimony by providing the Subcommittee with a brief overview of Detention and Removal Operations’ (DRO) mission and achievements. 

DRO’s mission is the apprehension, detention, and removal of all illegal aliens 

through the fair enforcement of our nation’s immigration laws. This critical mission 

also includes the management of non-detained individuals while their cases progress 

through immigration removal proceedings. In Fiscal Year (FY) 2004, DRO reached 

unprecedented levels of both removals and fugitive alien apprehensions. During that 

period, DRO officers removed 160,000 aliens, including over 85,000 individuals with 

criminal records. In FY 2005, as of July 31, DRO had removed approximately 

109,100 aliens, of which 64,917 were criminals. Also in FY 2004, ICE’s 17 Fugitive 

Operations Teams apprehended over 11,000 fugitive aliens with final orders of removal. This figure represents a 62 percent increase from FY 2003. In FY 2005, as 

of September 22, DRO had apprehended 14,508 absconders. 

As part of our law enforcement mission, DRO is also responsible for managing the 

bed space resources for detained aliens. During FY 2004, ICE detained a daily average of more than 21,900 individuals. The year-to-date statistics for FY 2005, 

through August, include the detention of 218,608 aliens. Moreover, DRO has maintained 100 percent average daily detention capacity for the past two fiscal years. 

As I mentioned before, the ultimate goal of immigration enforcement is the removal of illegal aliens from the United States. The timely issuance of travel documents by foreign governments is critical to the removal process, since DRO cannot 

remove aliens without proper travel documentation. Relying on the support from the 

U.S. Department of State, a key stakeholder in the arena of immigration enforcement, ICE continues to work with foreign government officials in order to expedite 

the issuance of travel documents. DRO is also improving the removal process 

through greater utilization of video teleconferencing (VTEL), which allows foreign 

government embassy officials to interview their nationals from detention centers 

around the country. VTEL has recently been installed at the Honduran Consulates 

in Houston and Los Angeles, and is expected to be installed at the Honduran Consulate in Phoenix within the next month. 

The Department of Homeland Security (DHS) employs several tools in order to 

accomplish its mission; Expedited Removal (ER) is one of those tools. ER allows 

DRO to quickly remove certain aliens who are either seeking entry or who have recently entered the U.S. illegally. In September 2004, DHS began implementing Expedited Removal on a limited basis between ports of entry. This expanded ER ap-
14

plies to aliens who have no valid entry documents or who have fraudulent travel 

documents, are apprehended within 100 miles of the border, and who cannot demonstrate that they have been present in the U.S. for over 14 days following their 

illegal entry. Expanded ER has primarily been directed towards third-country nationals (nationals of countries other than Mexico and Canada) and to certain Mexican and Canadian nationals with criminal backgrounds, involvement in alien smuggling, or a history of repeated immigration violations. 

This expanded ER authority was initially implemented by the Customs and Border Protection (CBP) Office of the Border Patrol in the Tucson and Laredo Sectors. 

From June through August 2005, a focused enforcement operation was conducted 

in the Rio Grande Valley Border Patrol Sector. Most recently, on September 14, 

2005, DHS expanded ER authority from three to nine Border Patrol Sectors, implementing the program across the entire Southwest border. As of September 5, 2005, 

17,428 aliens have been placed in ER proceedings, with 14,679 being removed. 

The ER process results in a final order of removal, which prohibits re-entry for 

a period of at least five years, absent special permission. This deters unlawful entry, 

and makes it possible to pursue future criminal prosecution against those aliens 

who continue to enter the United States in violation of the law. But the most important benefit of ER is that it streamlines the processing of inadmissible aliens, because individuals in ER proceedings are, generally, not entitled to a hearing before 

an Immigration Judge, or eligible for release on bond, unless they express a credible 

fear of return. In FY 2004, the average detention time for third-country nationals 

in removal proceedings before an Immigration Judge under Section 240 of the Immigration and Nationality Act was 71 days. However, the average length of detention 

for those third-country nationals in ER not claiming credible fear was only 25 days. 

Expedited Removal is an excellent tool to deter illegal migration, but the ER program must be carefully managed with the appropriate human resources and transportation requirements. Moreover, mandatory detention ensures measurable 

progress toward a 100 percent removal rate. Deterring future entries and accelerating removal of aliens ordered removed will enhance DHS’s ability to secure the 

border, and to focus its resources on threats to public safety and to national security. 

Expedited removal between ports of entry has provided DHS with an effective 

means of enforcing our immigration laws. DRO fully supports the principle of Expedited Removal as it deters foreign nationals without protection claims from illegally 

entering our country, ensures expeditious removal of aliens illegally present in the 

United States, and reduces the growth of the absconder population.

CONCLUSION 

In conclusion, the ability to detain aliens who attempt to enter our country illegally while admissibility and identity is determined, as well as to quickly remove 

foreign nationals without protection claims, is critical to national security and public 

safety. With the implementation of Expedited Removal, DRO has partnered with the 

CBP Office of Border Patrol in a DHS initiative designed to utilize our combined 

resources in order to secure the Southwest border. By aggressively enforcing our immigration laws, we will continue to seek the strengthening of the legal immigration 

process for worthy applicants, and to deter criminal and terrorist organizations that 

threaten our way of life. 

I thank you for the opportunity to testify today on behalf of the dedicated men 

and women of DRO, and look forward to working with this Subcommittee in our efforts to secure our national interests. I will be glad to answer any questions you 

may have at this time.

Mr. LUNGREN. Thank you very much, Mr. Torres, for your testimony. 

The chair would now recognize our final witness, Mr. Daniel 

Fisk, the deputy assistant secretary for Cuban and Central American affairs and policy planning and coordination for the Department of Justice. Mr. Fisk will testify about the State Department’s 

role in facilitating country clearance and travel documents for the 

removal of aliens. 

STATEMENT OF DANIEL FISK 

Mr. FISK. Chairman Lungren, thank you very much. 
15

Ranking Member Sanchez, good to see you again—and other distinguished members of the committee. 

I appreciate the opportunity to be here today to discuss, from the 

perspective of the State Department’s Bureau of Western Hemisphere Affairs, our role in supporting the expedited removal process for undocumented aliens. 

We fully understand the vulnerabilities posed by insecure borders and share your concern about securing our frontiers against 

criminals and terrorists. As the Deputy Assistant Secretary of 

State with responsibility for relations with Central America, I am 

most familiar with the issue of undocumented aliens from that region. 

Our role in immigration enforcement is primarily to engage with 

the foreign governments to facilitate their cooperation in repatriating their citizens expeditiously. We work closely and cooperatively with the Department of Homeland Security, both here in 

Washington and with DHS personnel stationed in our embassies 

overseas. 

As this Subcommittee well knows, other than Mexican nationals, 

some of the largest flows of undocumented aliens comes from Central America. These governments are very aware of the security 

challenges posed by this flow to the United States and have traditionally worked cooperatively with us to repatriate their citizens. 

Since the approval by DHS of the initiative to expand the use of 

expedited removal, we in the Western Hemisphere Affairs Bureau 

have taken several steps to assist with the implementation of this. 

First, to make sure that our own diplomatic personnel in Central 

America understand the new policy and its objectives, I met last 

week with our Ambassadors to that region to walk them through 

the policy. Prior to that, in the case of El Salvador specifically, our 

Embassy there hosted a DHS delegation for initial discussions with 

the government of that country. 

Here in Washington, together with DHS representatives, I have 

met with the Ambassadors from El Salvador, Guatemala and Honduras, not only to inform them that the U.S. Government is dedicating increased resources and personnel to border security, especially to detaining and returning undocumented aliens attempting 

to cross our border, but also to lay the foundation for more detailed 

government-to-government discussions on the logistics of implementing this program. 

In Central America, specifically in Honduras, El Salvador and 

Guatemala, U.S. Embassy officials, either at the Ambassador or 

Charge level, have already communicated with senior government 

officials to reinforce this message, reiterating that increased border 

security benefits all countries in the region by allowing a greater 

focus on aliens with criminal or terrorist links. 

With this enhanced emphasis on expedited removal, Central 

American governments will be required to dedicate more resources 

and personnel to the repatriation of their citizens who are detained 

while trying to cross our borders illegally. In particular, we have 

emphasized the need for these governments to increase the resources they dedicate to providing travel documents and streamlining other repatriation procedures. 
16

The response from these governments has been positive. They 

are friends and allies and have approached this with us in a constructive manner. For example, the Honduran government has already identified consular officials able to travel to DHS detention 

centers for week-long periods to issue travel documents. The Honduran Embassy here in Washington is also working to put their 

DHS-provided videoconferencing equipment to use to obviate the 

need for such consular travel. And Honduras has agreed in principle to allow more deportee flights and increased access to other 

facilities. 

In El Salvador, we have met with the Minister of Government 

and President Saca himself to enlist their cooperation on accepting 

a greater number of repatriations. The Salvadorian government 

has agreed to form a working group with us to examine how best 

El Salvador can accept greater numbers of deportees. 

And in the case of Guatemala, the Guatemalan Foreign Minister 

has agreed that Guatemala will take the necessary measures to accept the increased flow of its repatriated citizens. 

The Central American nations have been cooperative, but they 

are looking to the United States for help in processing the return 

of these migrants. Specifically, some countries have asked for resources to help improve airport reception detention facilities to deal 

with returned criminal aliens and to expand processing facilities to 

handle an increased number of flights. 

Mr. Chairman, we agree that securing America’s borders is a 

critical issue. We look forward to continuing to work with our colleagues in DHS in implementing the Secure Border Initiative. 

Again, thank you for the opportunity, and I will be happy to take 

questions. 

Mr. LUNGREN. Thank you very much for your testimony. 

Again, I would just mention for Mr. Souder’s edification that we 

have an emergency GOP conference at 3 o’clock, so we are going 

to have proceed expeditiously here. And I would presume that if we 

have other members who come and want to ask questions, we 

might have to recall the witnesses at a future date. 

I will just limit myself to 5 minutes. 

Mr. Fisk, what you have told us sounds very, very positive, and 

I would assume that members of Congress may be positively disposed to assisting some of these countries with some of the requirements that they have if that is going to lead to greater implementation of expedited deportation. 

It strikes me, though, that all the countries you mentioned are 

countries who are beneficiaries of the Central American Free Trade 

Agreement that many of us just worked on here in the Congress, 

and I would hope those countries would understand that many of 

us who supported that also support the implementation of expedited deportation in this regard. 

Can you tell me whether it has ever been discussed in the State 

Department, either shared with or not shared with these countries 

that we are talking about, the authority that you have under section 243(d) to withhold issuance of visas to nationals of foreign 

countries who deny or delay accepting their citizens back? 
17

Mr. FISK. I will speak to what I know in terms of the Western 

Hemisphere Affairs Bureau, and I am not aware that we have 

raised that issue at all with them. 

And I would submit, Mr. Chairman, at this point, these are 

friendly countries. We are trying to approach this, and I am convinced they are trying to approach this, in a constructive way. And 

that at this point all these instruments I think have their place in 

terms of the application. But we have not specifically discussed 

that, and at this point, I think it is premature to go to them and 

kind of wave an ugly stick around. 

Mr. LUNGREN. Well, it may be premature but you should get a 

sense of what we are hearing from our constituents back home. 

And when you see an OTM policy which basically results in Brazilians coming to the United States in increasing numbers and instead of running away from our Border Patrol officers seeking them 

out so they can be arrested so they can be caught and released, you 

have got to realize that people think that maybe waiting around for 

something else is not what we have in mind. 

I understand, I am a friend of these countries, I supported 

CAFTA, but the message ought to be very, very loud and clear from 

the Congress to the State Department that in fact we would like 

action now, not later, and very much appreciate the fact that we 

are being informed of an expansion of this program as far as the 

Department of Homeland Security is concerned, but if it does not 

get an improvement in terms of the documents that are required 

by these other countries, it just may not work. 

Chief Aguilar, can you tell me if the State Department was involved in the planning process in this new policy that you have articulated? 

Mr. AGUILAR. Expedited removal, as implemented, was implemented across the nine southwest border sectors. The State Department is definitely aware of the concerns that we had—

Mr. LUNGREN. Right. I am not asking about whether they were 

aware. Were they part of the planning? When you were coming up 

with this, did you go through the problem that would exist if you 

started getting all these folks and actually filled up all your detention beds and we did not have an improvement in the cooperation 

that we are having from these countries, that in fact the whole program could not succeed? 

Mr. AGUILAR. Yes, sir, it could implode. The State Department 

was being talked to throughout the actual planning processes. 

Mr. LUNGREN. What challenges has the Border Patrol experienced in its implementation of the expedited removal authority to 

the three Border Patrol sectors a year ago? 

Mr. AGUILAR. Absolutely outstanding situation. Let me give you 

an example, Congressman. In McAllen Center, which was the most 

impacted sector for Brazilians throughout the nation, during the 

first 30 days of implementation of E.R., the number of Brazilians 

apprehended dropped by 54 percent. At the 60-day mark, it 

dropped by over 90 percent and is still continuing to drop. 

Mr. LUNGREN. So the word got out. 

Mr. AGUILAR. Absolutely, yes. 

Mr. LUNGREN. What about challenges? Any particular challenges 

you have had in implementing the policy? 
18

Mr. AGUILAR. No, sir. The only real challenge that we had was 

a bed space requirement, but myself and Mr. Torres worked together immediately on making the most of those beds that were 

available at the time of implementation. And since then, I am sure 

the congressman’s aware, there have been an additional 1,800 beds 

now allocated to DRO. 

Mr. LUNGREN. But if there were no challenges that you saw 

other than bed space, why hadn’t we pursued this policy before? 

Mr. AGUILAR. Because at that time when we implemented, we 

had to approach it in a very measured approach because of the limited bed spaces that we had. We did not want to overload the system. 

Mr. LUNGREN. So the limiting factor was the bed space. 

Mr. AGUILAR. Yes, sir, absolutely. 

Mr. LUNGREN. And would continue to be the case if we do not 

give you enough space, correct? 

Mr. AGUILAR. That is correct. 

Mr. LUNGREN. Anything else limiting it? 

Mr. AGUILAR. No, not from a Border Patrol operations perspective. I believe Mr. Torres would have some concerns with the ability to remove these people as fast as possible. 

Mr. LUNGREN. Mr. Torres? 

Mr. TORRES. Yes, Mr. Chairman. In addition to the beds and having to implement the use of those beds in a measured approach, 

there are two other factors I see that could limit the success of expedited removal. 

One of them is the ability for us to get travel documents and also 

obtain the country clearances in a timely fashion. Currently, as expedited removal is implemented, it takes ICE about 10 days to get 

a country clearance to send someone back on an escort to that foreign country to remove someone. 

When we implemented this, it was an average of about 32 days 

in the San Antonio area of detention for each person that was arrested. The other part of that timeframe, in that 30-day timeframe, 

had to do with actually getting the travel document. In some instances, the majority of the Brazilians did arrive with travel documents, but when they did not, it requires us to detain them until 

we actually get those travel documents. 

Mr. LUNGREN. Thank you very much. 

Ms. Sanchez? 

Ms. SANCHEZ. Thank you, Mr. Chairman. 

And thank you again, gentlemen. 

I would like to ask Mr. Fisk, what do you say to all of this? I 

mean, has there been—from your standpoint, and I know you may 

have a limited view, maybe you were not in these meetings, but 

from your understanding, what are the types of meetings that have 

gone on to try to iron all of this out? Because, according to Mr. 

Torres, it is not just bed space but it is travel documents and county clearances. So what kind of collaboration has been going on or 

has there been, and do we need to change that? 

Mr. FISK. Thanks for the question. 

Having been in government long enough, I realize that the interagency process has its own dynamic, just the government communicating with itself. 
19

My assessment is in this case the communication has worked 

very well. Our office, first and foremost Mexican Affairs, was 

brought into the process very early in the process with Mexico 

being an early focus point. Also our Brazilian and Southern Cone 

office also has been involved on the issue of the Brazilians. 

From the Central America perspective, I probably spent more email time, phone time and meeting time on this issue recently in 

the last few weeks, and it competes with just about any other 

issue, except Nicaragua possibly, in terms of the concentration of 

my time and attention. 

And, frankly, DHS has been very proactive in reaching out to us, 

so I have been very, very pleased and feel like that we have been 

partners in this process. And in fact one of the things I wanted to 

point out in my statement was how much of this we have done together with DHS, State and DHS at the table together. 

We want to make it clear, and it goes back to Chairman Lungren’s comment, make it clear what the message is. The policy has 

changed. Expedited removal is a reality. It is happening. We are 

not here to debate that point. It is time to move on to the other 

issue, which is logistical implementation. 

Ms. SANCHEZ. So the policy has changed, you guys are working 

together. What can you estimate will be the difference between the 

old policy and today’s policy with respect to actually returning— 

Mr. FISK. As I understand, and I will defer to my colleagues from 

DHS, but it goes to the issue of how long an alien spends time in 

detention. DHS can speak to what its goals are in that. My job at 

State is not to argue with that, my job is to help them make that 

happen, and that is what we have committed to, in this case, the 

Central Americans specifically. 

Ms. SANCHEZ. To you, gentlemen. 

Mr. TORRES. Sure. With respect to the amount of length of stay 

for people that we arrest and then detain, we would like to cut that 

down by 50 percent. One of DHS’s goals currently is to get to 100 

percent detention of OTMs by the end of fiscal year 2006 but also 

reduce the amount of length of stay that each person remains in 

custody. Currently, as we saw in south Texas, it was 32 days. We 

are seeing that drop now to about 25 days, and we would like to 

cut it down even further and get it between 10 and 15 days. 

Some of the instances that I talked about in getting those travel 

documents is that some of these countries require a personal interview of all their foreign country nationals, of their nationals that 

we are going to return to them. And so until they can actually provide a consular official to our detention site, we are at their mercy 

at that point where we are detaining someone while the consul will 

make, what we call, a 2-week run. They may hit each facility once 

every 2 weeks and then they will interview as many as they can 

that day and then continue on to the next detention facility. 

That is one of the reasons why we have taken a serious look at 

implementing the video teleconferencing concept, and right now 

Honduras has actually accepted and bought off on that idea, and 

we are working through the implementation of that, and we are 

still awaiting back to hear from El Salvador and Guatemala. 

Ms. SANCHEZ. Mr. Torres, is 100 percent detention of OTMs possible? 
20

Mr. TORRES. With the current resources we have, no, but that is 

why we have a homeland security at DHS level working group with 

representatives not only from State but from Detention and Removal Operations, from our Investigative Division, from the Office 

of the Border Patrol, as well as from throughout the remainder of 

Customs and Border Protection, their resources. 

They are all working very hard at this over the past 6 to 8 

weeks, and this has been one of their top priorities. Their sole focus 

right now is, how do we make this work and how do we actually 

identify how many resources we will need and what will it cost 

them. 

Ms. SANCHEZ. What is the criterion used to determine whether 

an OTM individual arrested by the CBP versus a criminal alien arrested by the ICE agents is detained? And how is it possible to address these competing demands given the tremendous shortage of 

funded detention space? 

Mr. TORRES. That is an excellent question. We have our priorities. We set a prioritized scale of how we implement our detention 

bed space. Obviously, national security is the highest priority. Community safety is another priority, and then there are some people 

that we arrest that its mandated statutorily that we have to detain 

them. I am talking about criminal aliens that are aggravate felons 

that fit into that category. In this instance also, when you use expedited removal, it is mandated we have to, by statute, actually detain the aliens. 

So the question then becomes, do we hold a criminal or do we 

hold someone that is a non-criminal that is here that is being 

charged with expected removal, which is one of the reasons why we 

are using the measured approach. 

In working with all three of our staffs here and addressing the 

problem, we take a look at we do not want to let criminals back 

out on the street, we have to ensure that there is sufficient bed 

space for national security arrests and still be able to apply a significant portion of our beds for expedited removal of non-criminals. 

And so we look at other ways to make the system more efficient, 

such as getting travel documents more quickly or being able to get 

country clearances for our officers that travel in a more expeditious 

manner. 

Mr. LUNGREN. Thank you. 

Mr. Souder? 

Mr. SOUDER. I appreciate we have a time restriction here, so I 

am going to ask a series of questions and would ask for written responses. I will get you the questions in writing so that you do not 

have to necessarily remember them all. 

First, in OTMs, we have in the staff supporting documents here, 

Mr. Torres had some but from Pakistan and Iran, and I know this 

is collected because at San Isidro I was given how many people had 

been detained from terrorist-watched nations, how many were actually on a terrorist watch list. But could you give us a list that 

you have of the OTMs that you have intercepted, why don’t we say, 

this year from terrorist-watched nations? 

Then I am also, as you well know, interested in narcotics. There 

is a difference between somebody indicted and somebody who is on 

a watch list, that you would expect they are part of an organiza-
21

tion. I would like to know how many of those may be there that, 

in effect, either we are going to deport or would in worst case be 

let go to return on their own recognizance. 

Also, the percentage that are actually on a terrorist list, which 

would be the highest priority from the national security. 

Then we have some information on this but I would like to know 

who actually shows up at their deportation hearing. Are they stupid or are they people with a challenge? Are they people who are 

ready to go home? It is not clear why if you were let go on your 

own recognizance you are going to show back up. 

And I would like some kind of comment on that. And if you 

would also give us—I heard the chairman’s question, and you answered this to some degree, but if you could—I heard Mr. Torres 

make the comment—I am sorry, Mr. Aguilar’s opening statement, 

but that you said that you felt expedited removal was a deterrent. 

Do you believe it is more of a deterrent than being held in prison, 

say, for 6 to 12 months before you are deported? Because in many 

of these cases, particularly if it is not that far, they will work their 

way right back up. 

And since we know they have committed an illegal act or they 

would not have been detained, and we are detaining them not technically doing the whole term, I do not understand, and it is clearly, 

as you stated a beds question, why they should be let go on their 

own recognizance at all. 

Another question I have is, do we have any Mexican citizens who 

have been on a terrorist watch list? Because part of this debate 

over the border and OTMs, and I will ask that also of other Central 

and South Americans, or in effect do we need to separate the OTM 

and the Mexican question? One is more of a work and immigration 

question, one is more of a terrorist question. 

And if you have people that you have intercepted on a terrorist 

watch list who have a Mexican I.D. or a Nicaraguan I.D. or an Ecuadorian I.D. or a Brazilian I.D., were they actually long-time nationals of those countries or are they people who got a Mexican I.D. 

or a Brazilian I.D.? In other words, in the homeland security area 

as we look at this and try to look at the broader question of how 

we are going to secure the border, which is very controversial in 

how we are going to deal with immigration and other questions. 

But in dealing with the OTMs, are we really looking in a security 

risk at Mexicans, Central and South Americans here as a security 

risk or are we actually looking in a smaller group and where are 

they, and do some of them move then if would just concentrate on 

them, to pick up false I.D.s, and then does that give you when you 

are screening a whole different look? 

And particularly in the detention if we have a limited number of 

beds, if we don’ fund it to give 100 percent, shouldn’t that be the 

target then of those who are greatest risk if you say you have a 

national security type of thing? And I wanted to see the data that 

would, in effect, back that up. 

I thank you for your work, look forward to continuing with you 

as we go through multiple hearings of this committee and also the 

Government Reform and Oversight, but we are trying to move 

through some legislation yet this fall, if possible, on this border, on 
22

OTMs, on the guys who do the running, whether we need more 

beds. 

One other comment also: I am bothered by this 100 percent capacity question. I have visited pretty much almost every crossing 

on the South and a few in San Isidro and the major Texas crossings multiple times. I have never seen the beds full. I have been 

there in the middle of the night, I have been there in the morning, 

I have been there in the afternoon. I have never seen them full at 

any single location. And I am curious where that number comes 

from. 

Can’t they at least be detained for a while then before they are 

released? In fact, the last two times I did not see—I think there 

were two people in the whole unit at the border. 

Mr. LUNGREN. You are going to submit questions? 

Mr. SOUDER. Yes. I will give those in writing, and they have got 

the general drift. And I believe the data is there. 

Mr. LUNGREN. Right. 

I want to thank you for appearing. We normally would have a 

longer hearing and have more members here, but we have had 

some unexpected news today, and we are required to have a Republican conference that was not scheduled until about 2:10 today. 

We thank you for this. 

This subcommittee will continue with its interest in this issue, 

and I just want to assure you that we congratulate you for expanding this program. But I should also tell you that members of Congress feel very, very, very strongly about this issue, and I think 

most of them would encourage you not only to do what you are 

doing but to be as vigorous in pursuing that as possible. 

And once again, thank you for being here. 

This subcommittee hearing is adjourned. 

[Whereupon, at 2:56 p.m., the subcommittee was adjourned.]

FOR THE RECORD

QUESTIONS FOR FOR DAVID AUILAR AND JOHN P. TORRES FROM HON. MARK E. 

SOUDER

1. Do you believe expedited removal is more of a deterrent for OTMs than 

being held in prison for six to 12 months before deportation? 

Response: The Department believes that one hundred percent detention and 

guaranteed rapid removal of the vast majority of OTMs via expansion of Expedited 

Removal will have far more deterrent effect than the current approach because it 

will achieve increased certainty of outcome at an acceptable cost. Six to twelve 

months of ICE detention is far more costly than the two to five weeks of detention 

that are usually needed to arrange travel documents, country clearance and transportation for repatriation in an Expedited Removal (ER). The costs of so-called ‘‘regular’’ removal proceedings under Section 240 of the Immigration and Nationality 

Act, which include the costs to the government of the immigration judges and ICE 

trial attorneys that prosecute the cases, are also significantly higher than those associated with expedited removal. In addition, the longer process enables the aliens 

to apply for forms of relief and extend their stay by repeated appeals. While it is 

anticipated that the vast majority of OTMs would be removed via ER, CBP would 

like to continue the 240 proceedings in order to pursue criminal charges against the 

alien or to ensure the longer bar to reentry (NB: Normal Section 240 proceedings 

can result in a ten year bar to reentry, while Expedited Removal provides for a five 

year bar).

2. Could you provide a list of the OTMs that have been intercepted this 

year from terrorist-watched nations? 

Response: Nationals from foreign countries are evaluated based on threats. This 

information is Law Enforcement Sensitive and will be provided upon request.
23

3. As you know, there is a difference between an OTM that is indicated and one 

who is on a watch-list that you would expect is a part of an organization. How 

many of those that are scheduled to be deported return on their own recognizance? Also, what percentage of OTMs that are being deported, are on a 

terrorist watch-list? I am also interested in which of these OTMs actually show 

up at their hearings unless they are looking to be deported. 

Response: A: Approximately 15 percent of all aliens scheduled for removal and 

who were not detained at the time of their order surrender for removal. This means 

approximately 85 percent do not surrender for removal. Some portion of the 85 percent eventually self-deport. However, our databases do not record whether the alien 

self-deported or whether the alien’s deportation was arranged for and paid by the 

government. In addition to those aliens who later self-deported, others were removed after being apprehended by fugitive operations. 

B: This information is law enforcement sensitive and can be provided separately 

upon request. 

C: ICE does not collect data that shows how many aliens failed to show for their 

hearing. The Executive Office for Immigration Review annual statistical report indicates an overall failure to appear rate for all aliens (not just aliens of special interest) of 25 percent for FY 2004. This number includes all aliens scheduled for removal proceedings, regardless of detention status. The rate for non-detained aliens 

is 40 percent and the rate for those released on bond or recognizance is 37 percent. 

The Department of Justice Office of the Inspector General (OIG) issued a report 

in 2003 (Report #I–2003–004) that focused on the former INS’ ability to remove 

aliens based on their detention status. Of their sample, the OIG found that 92 percent of detained aliens were removed. Of the non-detained aliens, the OIG found 

that only 13 percent were removed.

4. Does our country have any Mexican citizens who have been on a terrorist-watch list? Do you have people that have been intercepted on a terrorist watch-list who have a Mexican, Nicaraguan, Ecuadorian, or Brazilian 

ID? As we deal with OTMs, are we really looking at Mexicans and Central 

and South Americans as a security risk or are we actually looking for a 

smaller group that we focus our concentration on to pick up false ID’s? 

Response: The content of the Terrorist Screening Database (TSDB) is maintained 

by the Terrorist Screening Center (TSC) under HSPD–6. Border Patrol Agents have 

received counterterrorism training and are trained to look for indications in an 

alien’s personal effects, demeanor and behavior for terrorist or other factors that 

might require additional scrutiny or screening, regardless of nationality. Border Patrol policy and protocol requires referring any suspected terrorists or persons that 

may present a terrorism risk for additional records checks via the National Targeting Center (which links with the TSC’s terrorism watch list). ICE is notified of 

the apprehension of potential suspects through the NTC; the Joint Terrorism Task 

Force is also alerted for possible further action. 

With regard to false identification, most aliens apprehended are not in possession 

of documents. However, agents are trained to: question those persons apprehended 

about their immigration status; look for signs of criminal activity (such as gang 

membership or smuggling operations); identify attempts at false identities; and 

watch for other terrorist indicators. All apprehendees’ names and fingerprints are 

run through IDENT/IAFIS to determine if there are outstanding criminal or immigration violations. In addition, through questioning, agents are often able to identify 

false citizenship claims. For example, using various Spanish dialects or idioms, for 

example, which may be unknown to someone posing as being from a certain country.

5. I am troubled by the multiple reports that we are at 100-percent capacity for detention beds. I have visited every major border crossing on the 

southern border and the majority of crossings on the northern border and 

I have yet to see the beds full at a single location. In fact, the last time I 

was at the southern border, there were only two people who were being detained. 

Response: ICE DRO operates at 100 percent of funded detention capacity. As a 

function of the apprehension and removal process, the population at any detention 

facility will fluctuate during any given period. However, the fluctuation will always 

be within a small percentage of the ICE operational capacity. The Office of Border 

Patrol and the ports-of-entry maintain holding cells within their offices. These cells 

are designed for very short-term detention; they are not staffed or equipped for sustained detention, but as interim housing until the alien can be transferred to a DRO 

detention facility. As a result, these beds are not counted as part of the DRO capacity for detention. 
24

QUESTIONS FOR THE RECORD FROM REPRESENTATIVE DAN LUNGREN

1. The Subcommittee is very supportive of the new expedited removal policy initiative of the Department but your written testimony provides very few details 

about how the Border Patrol plans to effectively implement the use of expedited removal along the entire southwest border of the United States. The success of this 

program is truly in the details—specifically the level of coordination and cooperation 

between CBP, U.S. Immigration and Customs Enforcement, and the State Department. 

• Was U.S. Immigration and Customs Enforcement (ICE) involved in the 

planning process and if so, to what extent? 

Response: ICE has been involved in the planning and execution of the new expedited removal initiative. ICE’s Detention and Removal (DRO) and CBP have worked 

together to streamline the removal process and maximize efficiencies. CBP and DRO 

exchange information to track developing trends in apprehensions and provide resources where needed. Likewise, DRO has worked with the Department of State to 

elicit support from those countries most affected by the new expedited removal policy. State and DRO encourage these countries to increase their efforts in issuing 

travel documents and receiving their nationals quickly to minimize the aliens’ time 

in detention.

• Was the State Department involved in the planning process and if so, 

to what extent? 

Response: Through the US-Mexico Border Partnership Plan of 2002 and 

strengthened in the Security and Prosperity Partnership for North America (SPP), 

DHS and the Department of State are working with the Government of Mexico to 

coordinate visa policy as one of many tools to enhance security in the hemisphere. 

The Department of State is also currently working with the governments of several 

Central American countries to expedite the issuance of travel documents necessary 

for the repatriation of their nationals and to increase capacity to receive their repatriated nationals. For example, El Salvador presently accepts only 140 of its nationals per week even though the average weekly apprehension rate for Salvadoran nationals is over seven times higher at approximately 1,000. This 140 equated to two 

flights of 70 El Salvadoran nationals, split fairly evenly between criminal and noncriminal aliens. However, as the result of discussions between the government of El 

Salvador and DHS, in October 2005, El Salvador agreed to an unlimited increase 

in the number of non-criminal deportees per week and to an increase in the number 

of flights for these non-criminal deportees. A limit of one flight of 70 criminal deportees per week remains.

• What challenges has the Border Patrol experienced since implementation of expedited removal authority to three border patrol sectors a year 

ago? How has the agency dealt with those challenges? 

Response: The ER pilot program was implemented in the Tucson and Laredo 

Border Patrol Sectors in September 2004. During the planning of the pilot program, 

ICE dedicated substantial detention resources to the program. Therefore, no placement challenges were experienced by those sectors. As expedited removal is expanded to other sectors, the Department has worked to allocate adequate detention 

resources and prioritize aliens for detention. For example, under ‘‘Operation Texas 

Hold ‘Em,’’ ICE and CBP partnered to detain one hundred percent of apprehended 

Brazilians for Expedited Removal in the Rio Grande Valley Sector (formerly 

McAllen). The Secretary announced expansion of Expedited Removal to the entire 

southwest border in September. 

A Department working group considered: 1) designated points of contact for both 

agencies in the field and at the Headquarters level; 2) transportation issues; 3) daily 

intake levels; and 4) the initial nationalities that were going to be processed for the 

1,800 newly-acquired detention beds primarily for the Del Rio and Rio Grande Valley Sectors. The remaining seven southern border sectors were also advised to expand the use of ER to the extent possible based upon available detention beds by 

their local ICE Detention Centers.

2. In March, this committee examined whether U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) should be merged 

back together because of reported problems created by the artificial separation of 

border enforcement and interior enforcement. One of the problems the committee 

identified is that ‘‘bureaucratic walls’’ have developed between the two agencies.

• Please describe for the committee the challenges your agency faces by 

having a separate agency making the decisions whether the aliens your 
25

agents apprehend are able to be detained? What level of cooperation and 

what changes are necessary to make this policy initiative a success? 

Response: The Department is working with CBP and ICE to ensure that a new 

model of enforcement is being developed so that CBP and ICE detentions can be 

tied together. To meet the Secretary’s stated goal of ending catch and release, the 

Department is developing an allocation plan of detention beds, a personnel plan and 

transportation plan to accommodate these removals

3. The Border Patrol is truly ‘‘on the front lines’’ of defending our homeland. However, the Department’s ‘‘catch and release’’ policy for dealing with Other than Mexicans has only created an incentive for more illegal entries. 

• In your view, what impact have you seen over the past year since expedited removal has been used, and what impact do you anticipate from full 

implementation along the entire southwest border? 

Response: The use of expedited removal is an effective deterrent against attempted illegal entry because it requires mandatory detention and rapid repatriation. ER sends a strong message that an illegal entrant will not be released into 

the country but detained and removed. In the Laredo and Tucson Sectors, the original ER pilot sectors, ER has had a significant impact. Implementing ER in these 

sectors ended the significant increase in the rates of OTM apprehensions that had 

been seen in neighboring sectors without ER. The Rio Grande Valley Sector, for example, began ER on July 1, 2005 under ‘‘Operation Texas Hold-‘Em’’. In that sector, 

the majority of aliens placed in ER proceedings were Brazilian nationals. Analysis 

of statistical and intelligence indicators of application of ER for Brazilian illegal entrants in the Rio Grande Valley Sector showed that a rapid and significant decrease 

in apprehensions resulted from the implementation of ER. The combination of detention resources and accelerated repatriation has deterred illegal entry by Brazilian nationals in the Rio Grande Valley. Brazilian illegal entrant apprehensions, 

which were averaging 125 to 131 per day during May and June, decreased to only 

ten per day by the end of August. The successful outcome of ‘‘Operation Texas Hold-

‘Em’’ in the Rio Grande Valley Sector is attributed to the close cooperation between 

CBP and ICE/DRO in allocating bed space and other detention and removal assets 

to ensure the detention and removal of all apprehended Brazilians placed in ER. 

The San Antonio Field Office of ICE/DRO has also been helpful in providing not 

only the maximum number of detention beds available in the system and securing 

travel documentation and repatriation transportation for the program. The overwhelmingly positive operational outcome of ‘Operation Texas Hold‘Em’’ hinged upon 

this strong and continued level of support for the duration of the operation.

On September 14, 2005, Secretary Michael Chertoff announced the extension of 

ER across the entire southwest border. This completes the implementation of ER 
26

as an enforcement option across the southwest border. San Diego, El Paso, Marfa, 

Del Rio, Yuma, Rio Grande Valley, and El Centro have complete ER authorization. 

Tucson Sector (TCA) and Laredo Sector (LRT) continue to have DRO bed space 

available for all of their apprehended ER eligible OTMs. With the implementation 

of ER in Del Rio Sector on September 19, 2005, the shift of illegal Brazilian entrants 

to the Del Rio Sector, following the implementation of ER in the Rio Grande Valley 

Sector, has been reversed. 

To support the ER expansion, ICE/DRO has allocated 1,800 additional beds. The 

1,800 added beds have a positive operational impact on Brazilian OTM apprehensions. For example, for the entire month of October 2005, only five Brazilian illegal 

entrant aliens subject to ER proceedings were apprehended in Del Rio Sector. Although a total of nine Brazilian OTMs were apprehended, four were juveniles and 

family members who, according to policy, are not placed in Expedited Removal. 

Therefore, prioritization for detention space has been shifted to Hondurans, although apprehensions show signs of declining below available bed space. 

The ER program has shown significant success everywhere it was implemented. 

ER is central to the implementation of any plan to detain and remove all illegal entrant OTMs subject to removal.

4. What are the specific procedures that CBP agents must engage in when 

processing an alien for possible expedited removal? 

Response: Before DHS can process an illegal alien for ER, DHS must first determine that: 

• The alien is present in the United States, without having been admitted or 

paroled following inspection by a CBP Officer at a designated port-of-entry, 

AND 

• The alien was encountered by a Border Patrol Agent within 100 air miles of 

the U.S. international border and has not established, to the satisfaction of the 

agent, a physical presence in the U.S. continuously for the fourteen (14) day period immediately prior to the date of encounter. Once that determination has 

been made, DHS must also ensure that the alien is eligible to ER. 

• The alien is in a category of persons qualified for ER. ER cannot be applied 

to the following aliens, due to policy, statute, or judicial action: Unaccompanied 

Juveniles; Cubans; El Salvadorans; and verified members of the class action settlement in American Baptist Churches (ABC) v. Thornburgh. 

Aliens placed in ER who indicate an intention to apply for asylum or a fear of 

return are referred to a USCIS asylum officer for an interview to determine whether 

the alien has a credible fear of persecution or torture. If the alien establishes a credible fear, he or she is referred to an immigration judge for removal proceedings 

under section 240 of the Act where the alien can obtain adjudication of his or her 

asylum claim. An alien, who is determined not to have a credible fear, after an opportunity for review by an immigration judge, remains eligible for ER. 

All persons apprehended—whether ER candidates or otherwise—who meet appropriate age guidelines (juveniles under fourteen years of age are not included) are 

entered into the Integrated Automated Fingerprint Identification System (IAFIS). 

This system checks the subject’s ten fingerprints against IAFIS and IDENT for prior 

immigration or criminal encounters, or violations. Once these checks are completed, 

and if no derogatory information is found, DHS can then process the alien. If it is 

determined that the alien is eligible for ER, DHS verifies the availability of bed 

space and processes the alien for ER. Once the processing is complete, ICE detains 

and removes the alien.

• How much time does this take? 

Response: Aliens are processed through CBP’s ENFORCE system. An agent will 

generally take between ninety and one hundred and twenty minutes to process the 

alien through the ER process. If a language barrier exists, such as with Chinese and 

Brazilian nationals, the use of an interpreter adds to the processing time.

• Given the additional processing time the Expedited Removal process 

takes, what does the Border Patrol need to ensure that this program can 

be sustained without a reduction in Agent patrol time or other necessary 

duties? 

Response: Although the initiation of the ER process is only slightly longer than 

that required to place an alien in to standard INA 240 removal proceedings, the entire process is completed much faster than the standard removal proceeding. OTM 

aliens placed in INA 240 proceedings who are not among the priority detention 

classes (terrorist suspects, criminals) are generally released on their own recognizance (OR) with a notice to appear for a future hearing. OR can be problematic 

because release without any significant detention or bond does not generally result 
27

in removal and therefore encourages numbers of other OTMs to try to enter illegally. The continued use and expansion of the use of ER should generate sufficient 

deterrence to result in fewer attempted illegal entries, and fewer expedited removals, therefore releasing agents for more patrol duties. To alleviate some of the differences in processing time over a standard removal proceeding, OBP is also planning to streamline the processing paths in the ENFORCE system to a single dedicated path for ER. In general, however, Border Patrol agents recognize the importance of ER as a tool in securing operational control of the border and support its 

use, regardless of processing time.

5. What does CBP do differently when processing an OTM for Expedited 

Removal versus a Mexican citizen apprehended for illegally entering the 

U.S. for Voluntary Removal? Compare the time involved in each process for 

Border Patrol agents. 

Response: In order to capture the information needed on the legal documents required to process an ER case, border agents use two separate paths in the ENFORCE system. When an agent has completed the IAFIS and IDENT check on the 

Mexican national and the system responses are negative, the agent utilizes the Voluntary Return (VR) path of ENFORCE and completes the processing. The processing of a Mexican national for a VR to his country usually takes from five to fifteen minutes, depending on how quickly the biometric systems provide their return 

information. While the processing of an OTM for ER typically takes longer than the 

processing of a Mexican for VR, it does not make a significant difference in the total 

agent time spent processing because the vast majority of individuals apprehended 

are Mexican nationals.

6. The Subcommittee has a few questions regarding the training of Border Patrol 

agents: • How many Border Patrol agents have received Expedited Removal 

training? 

Response: Approximately eighty percent (7,970 out of a total of 9,971) of agents 

stationed on the southern border have received such training. The remaining agents 

were unavailable for training due to travel, temporary details to other duty stations, 

special operations or other temporary assignments and will be trained as soon as 

practical. The northern and coastal border sectors are next in sequence to be trained 

in ER, after development of a single consolidated training course, which addresses 

the unique training needs of sectors from all Border Patrol geographic areas.

• Please provide a description of the training program including length 

of time and curriculum. 

Response: The Train-the-Trainer (TTT) sessions are sixteen hours in length and 

are used to train senior-level agents in the processes who will return to the field 

to train other agents. The field training is eight hours in length. Both the TTT and 

field training sessions consist of sections regarding the application of Expedited Removal, asylum referrals, Enforce Training, and practical exercises. The training concludes with a question and answer session followed by a course evaluation. 

When available, representatives from CIS Asylum, Detention and Removal, and 

Customs and Border Protection Legal Counsel attended the training. These representatives provide valuable information regarding the asylum and removal process 

for persons expressing a credible fear of return to their home countries.

• What was the cost to the Border Patrol of providing this training to 

each agent? 

Response: Substantive costs incurred by the Office of Border Patrol (OBP) during 

the Train-the-Trainer sessions were travel and per diem costs. This amounted to 

roughly $12,600.00 per trainer for a total of $50,400 for all of the TTT sessions 

along the Southwest Border. Training was supplied by the Office of Training and 

Development. Local field trainers conducted the training at their respective Border 

Patrol stations. Man-hours and training supplies constitute the majority of costs incurred during the Expedited Removal field training.

• Will this training become part of the basic new agent training provided 

at the Border Patrol Academy? 

Response: The Border Patrol Academy will be included in the development of the 

new consolidated training syllabus and will be part of all training iterations for 

northern and coastal sectors. The Academy is planning to cover ER in both basic 

and advanced training and will develop systems and testing to validate such training.

• How are Border Patrol agents trained to identify aliens with credible 

fear and asylum claims? 
28

Response: During the Train-the-Trainer sessions, a representative from CIS Asylum is present to instruct the asylum portions of the class. As part of their training, 

agents are directed to refer any alien claiming any fear of return to their respective 

asylum office.

During the Expedited Removal process, agents are mandated to ask every alien 

the following questions: 

1. Why did you leave your home country or country of last residence? 

2. Do you have any fear or concern about being returned to your home 

country or being removed from the United States? 

3. Would you be harmed if you are returned to your home country or 

country of last residence? 

4. Do you have any questions or is there anything else you would like 

to add? 

Agents are also trained to look for non-verbal indications of fear, such as crying 

or trembling. When an alien’s verbal response indicates any fear of return, or where 

the alien exhibits non-verbal signs of fear, the alien will be referred the local asylum 

office. Agents are instructed to be over inclusive when referring aliens to asylum. 

Agents are also required to read a prepared statement advising the alien that if 

the alien has a fear or concern about return, he or she should tell the agent and 

that the alien will have an opportunity to speak privately with another officer about 

that fear or concern.

7. In your testimony, you describe the alarming increase of non-Mexicans or 

OTMs illegally entering the U.S. Based on your testimony, it looks like Border Patrol has apprehended about 90,000 more OTMs in FY05 than in FY04. (Note: There 

were 75,389 OTMs in FY04 and BP says that FY05 has seen a 119% increase, which 

equals 89,712.9 more for a total of about 165,101.9 OTMs total for FY05). 

• How can this enormous increase be explained in the number of OTMs 

crossing this year from last? 

Response: Economic factors generally spur trends in illegal migration and have 

been the principal motivation for aliens from developing nations, including most 

Central American countries. Another reason for an increase in illegal migration by 

OTMs is because the majority of those apprehended have been released on their 

own recognizance to attend immigration hearings. For example, virtually all of the 

OTMs that are scheduled for an immigration hearing at the Harlingen District Executive Office for Immigration Review (EOIR) do not appear for their hearings. For 

example, in FY04, the Harlingen District EOIR office, in Southern Texas, experienced a ninety percent no-show rate for the non-detained OTMs (also referred to as 

OR OTMs). Typically, illegal aliens will migrate to the United States by themselves, 

but upon establishing domicile in the United States, will then send for family members to join them, thereby continuing to contribute to illegal migration to the United 

States. Similarly, the existence of entrenched smuggling organizations makes the 

Rio Grande Valley Sector, formerly known as the McAllen Sector, a popular corridor 

for illegal aliens. Situated near the Panama Highway corridor, this route traverses 

through Mexico from the Guatemalan border and becomes I–35 at the Laredo, Texas 

border. 

• Can you provide the Subcommittee with an overview by Sector of how 

many OTMs are crossing the border and their nationalities? 

Response: The information below reflects the Office of Border Patrol’s apprehensions for the Del Rio, Laredo and Rio Grande Valley Sectors from July 1 through 

the end of September 2005, which accounted for seventy-five percent (104,987 of 

165,175) of all OTM apprehensions.
29

The Office of Border Patrol arrested OTMs from 154 different countries; sixty-four 

percent (106,288 of 165,175) of the OTMs were nationals of Central American countries.

8. In your testimony, you mention the dramatic decrease in the Rio Grande Sector 

of Brazilian foreign nationals being apprehended from 60 to 20 per day since the 

Expedited Removal program was implemented. • Has the Border Patrol seen the aliens shift to Sectors without the Expedited Removal process in place? 

Response: When the Rio Grande Valley Sector (McAllen) began its ER program, 

there was an initial significant shift of Brazilian illegal entrants from MCA to the 

Del Rio Sector (DRT). This shift bypassed the Laredo Sector, which already had ER 

in place. This shift in apprehensions to DRT has been reduced and at the rate of 

apprehensions is even lower than previous levels of apprehensions of Brazilians 

with the implementation of ER in DRT. For the entire month of October, DRT has 

apprehended only nine Brazilian illegal entrants, five of which were eligible for ER. 

By contrast, the week before ER was implemented in DRT, there were 321 such apprehensions. No other shift in OTM entries to other sectors has yet been identified.

• Have you seen similar reduction rates in apprehensions in other Sectors and with other nationalities? 

Response: Since ER has to date concentrated heavily on Brazilians and 

Hondurans, no other significant reductions have been observed for other nationalities. 

Below is a depiction of the impact/reduction in Honduran arrest along the southwest border sectors from September 18, 2005 through October 24, 2005.

Sector 

Arrests—Before ER

Expansion

(08/12—09/17) 

Arrests—After ER

Expansion

(09/18—10/24) 

Total Percentage Change 

San Diego 26 39 50

El Centro 31 34 10

Yuma 51 41 -20

Tucson 293 210 -28

El Paso 138 179 30

Marfa 31 21 -32

Del Rio 2,190 1,329 -39

Laredo 1,168 1,087 -7

Rio Grande Valley 3,581 2,887 -19

TOTAL 7,509 5,827 -22%

This table captures the southwest border arrest of all Hondurans thirty-sevens 

days before and after the expansion of ER to the southwest border.

9. Please explain the process for issuing a Notification to Appear (NTA) 

to an alien and then releasing the individual. How many NTAs did the Border Patrol issue in FY04 and FY05? 

Response: Aliens who cannot be removed under ER due to the current ER policy, 

statute, or via judicial action, or who otherwise require processing before an immigration judge, are referred for a removal hearing before an immigration judge under 

Section 240 of the Immigration and Nationality Act. The Border Patrol agent, after 

checking the alien’s biographic and biometric information through the IAFIS and 

IDENT systems, and upon receiving a negative response, processes the OTM in Enforce to create the necessary forms and case file for this referral. Unlike ER, a Section 240 proceeding, barring a statutory mandatory detention requirement, allows 

for a discretionary decision by the apprehending agency whether or not the alien 

may post a bond or be released on his own recognizance rather than being detained, 

pending the hearing. Once the alien is processed he is provided with a future immigration hearing date, advised of the location of the immigration hearing, instructed 
30

on the consequences of not appearing before the immigration judge on his specified 

hearing date, advised on how to notify the immigration judge in the event of a 

change of address, and released from custody. Aliens, other than arriving aliens, 

who have been denied a bond, have a right to a bond hearing and can be ordered 

released by an immigration judge after they are placed in Section 240 proceedings, 

unless they are subject to mandatory detention. See Matter of X–K—, 23 I&N Dec. 

731 (BIA 2005). 

During FY 2004, the Border Patrol released 45.25% of OTM apprehensions 

(34,164 of 75,500). During FY 2005, the Border Patrol released 69.57% of OTM apprehensions (114,912 of 165,175).

10. The law requires that all aliens in the Expedited Removal process be 

detained prior to their deportation. Given the number of detention beds 

available, what is the total number of OTMs that Border Patrol can place 

in the Expedited Removal process? 

Response: At the outset of the ER pilot program in the Tucson and Laredo sectors, ICE and the Office of Border Patrol agreed that ICE would accept all ER cases. 

ICE completes all required processes to remove currently detained aliens, including 

obtaining travel documents from the foreign country. ICE dedicated 1,800 detention 

beds to the ER efforts, resulting in an additional 80 beds a day for the Del Rio and 

Rio Grande Valley The number of available beds is expected to increase as the deterrent effect of Expedited Removal results in fewer apprehensions

11. Please describe for us the challenges faced by Border Patrol due to 

the fact that ICE controls the bed space available for aliens apprehended 

between ports of entry. 

Response: Currently there is very close cooperation between ICE/DRO and CBP/

OBP in addressing and planning for increasing the number of detention beds available for ER and in the development of transportation plans to accommodate these 

removals to meet the Secretary’s stated goal of ending catch and release.

12. Has any trend analysis been done to determine why for the past 4 

years (FY02–FY05), the McAllen Border Patrol Sector has had the largest 

number of OTMs? What is it about this Sector that makes illegal crossing 

so attractive? (see table on the following page) In addition to the Expedited 

Removal program, what is the Border Patrol doing to fortify this area?

Response: While illegal migration has many root causes, economic factors often 

spur the flow of migrants from Central American countries.

13. Over the past year, there have been repeated reports that ICE lacks sufficient 

detention space, which has caused ICE to release aliens that should otherwise be 

detained. However, full implementation of the expedited removal initiative along the 

southwest border will inevitably result in the need for more detention space.

• What specific steps is ICE going to take in order to ensure that bed 

space is available for those aliens apprehended by Border Patrol that could 

be processed through expedited removal? What specific steps are being 

taken at the Departmental level to ensure adequate bed space? 
31

Response: ICE DRO fully participates in the Department’s Secure Border Initiative (SBI). SBI will take a comprehensive view of immigration enforcement including border control and interior enforcement. ICE DRO, in conjunction with DHS, 

has been working closely with the Department of State and foreign governments to 

obtain travel documents to remove aliens apprehended at the border within 15 days 

of arrest. This expeditious processing and removal timeframe will provide a faster 

turnover of available detention space, which will result in a more efficient removal 

process. In addition, the SBI effort will require extensive increases in human and 

capital resources. The extent of that need is still being developed by SBI. 

• Was ICE part of the process in development of this initiative? Does ICE 

foresee needing further resources in order to make this policy a success? 

Response: ICE is an integral part of the Secure Border as it is responsible for 

the detention and removal of aliens, key components of the goal of gaining full control of our borders in order to prevent illegal immigration and security breaches.

14. In your written testimony, you state that ‘‘the ER (expedited removal) program must be carefully managed with the appropriate human resources and transportation requirements.’’ 

• In your view, what are appropriate human resources and transportation requirements needed and do current plans fill these needs? 

Response: The Department is developing a comprehensive border security and 

immigration enforcement strategy that will outline the necessary resources and requirements.

15. The Subcommittee is very concerned about the level of coordination, or lack 

thereof, between ICE and CBP, and ICE and the State Department to implement 

the expedited removal initiative. 

a. Is this initiative being coordinated at the Secretary level of the Department? And if so, what specifically does ICE plan to do to deal with the detention space issue? 

Response: Secretary Chertoff has been very involved in all phases of the conceptual and development stages of this initiative and has been closely coordinating with 

other Department Heads. His office has worked with ICE and other DHS components to develop a comprehensive strategy to accomplish the objectives of the SBI. 

The recent committee trip to the southwest border revealed serious management 

issues with available bed space. Our members were told that the decision on how 

many beds to fill comes from DRO Headquarters. However, when committee staff 

followed up on this issue, they were told that the decision is local. 

b. Can you please describe how the decisions about detention space are 

made, and who is responsible for making those decisions? 

Response: ICE operates at 100 percent of funded detention capacity. ICE manages its detention capacity nationally, in order to support the enforcement continuum as efficiently as possible, while providing for the safety and security of the 

detained population. As a function of the apprehension and removal process, the 

population at any detention facility will fluctuate during any given period. However, 

the fluctuation will always be within a small percentage of the ICE operational capacity.

c. Do the local offices have flexibility and some autonomy? In other 

words, if there are available beds in a facility and Border Patrol calls ICE 

to determine if there is room, what steps have to occur to fill the bed and 

who has to sign off on the decision? 

Response: The ICE field offices have flexibility and autonomy. They can utilize 

their authorized detention capacity in order to best serve their respective customers, 

which includes Border Patrol, CBP Field Operations, and ICE Office of Investigations. ICE Field Office Directors work with their enforcement partners during the 

planning of special operations in order to make detention capacity adjustments locally and nationally.

d. DRO has funding for about 19,400 beds per day. How many of those 

beds are available for the Expedited Removal program? How many current 

aliens in detention are OTMs? 

Response: The breakdown of detention capacity by population type can sometimes be very complex. ICE estimates that, prior to the Secure Border Initiative, it 

dedicated approximately 3,000 beds to support Border Patrol expedited removal operations in Tucson and Laredo Sectors. ICE DRO identified 1,800 additional beds 

to support expedited removal expansion within the scope of the Secure Border Initiative. As of the last week in FY2005, ICE had over 15,000 OTMs in custody.
32

16. In the DHS announcement and subsequent press interviews, DHS has 

said that they will acquire additional bed space to house the expected increase in expedited removal cases. Where will these detention beds be located and how will DRO meet the bed space needs for the additional 

OTMs? 

Response: ICE DRO will work closely with the Department and CBP to identify 

the location of those beds.

17. The Subcommittee understands there is a unit that is dedicated to obtaining 

travel documents and country clearances. • Can you please describe this unit? (personnel, resources, when formed, 

etc.) 

Response: The Travel Document Unit (TDU) is a unit within the Office of Detention and Removal, Removal Management Division. It supports the field and overseas 

entities to ensure the safe and orderly removal of persons from the United States. 

The unit works with governmental and non-governmental organizations such as the 

Department of State, TSA, travel agents, commercial airlines, over 200 embassies 

and consulates within the U.S., foreign governments and countless law enforcement 

organizations worldwide. Currently, there is one Chief, 3 permanent staff officers, 

2 officers detailed to the unit from the field, 2 officers detailed at overseas posts 

(Frankfurt and Rotterdam), and 1 program analyst. 

The scope of duties of the TDU varies significantly. TDU officers procure travel 

documents, usually for cases where local field offices have been unsuccessful in obtaining a travel document. It also provides removal support to ICE field offices as 

well as to ICE and U.S. Embassy personnel located overseas. The TDU is responsible for coordinating with foreign governments in all aspects of return issues, including repatriation agreements and the return travel of fugitives to foreign law enforcement authorities. 

The Centralized Ticketing Unit (CTU) was created in 2003 and works with the 

TDU. CTU is staffed mainly by contract staff and is responsible for sending removal 

notification and country clearance cables to U.S. Embassies overseas. The cables are 

routed to ICE Attache ́s or other U.S. Embassy personnel for notification of local authorities. The CTU also coordinates with DRO’s travel agency and field offices in 

establishing itineraries and ticketing for all removal travel, as well as accounting 

for funds spent for removals via commercial airlines.

• What is the process by which DRO personnel work with the alien’s 

home country to obtain travel documents and country clearances? 

Response: Once there is a final order of removal in a case, DRO field personnel 

begin the process to obtain a travel document, if necessary. Contact is made with 

the consulate having jurisdiction over the location of the field office. DRO sends the 

consulate a request for a travel document which includes copies of the removal 

order, charging document, biographical information, and any other documents or applications which a consulate may require. The travel document processing time differs from one consular office to another. Some consulates require that they interview 

the alien; others conduct an investigation in the home country, while others make 

a determination of nationality based on the documents submitted by DRO. To expedite the issuance of travel documents, establishing a good working relationship with 

consulate staff is vital. If the process of obtaining a travel document becomes extremely difficult, or reaches an impasse, the field refers the case to the Headquarters Office of Detention and Removal, Travel Document Unit.

• Is this process handled locally by each facility and on a case-by-case 

basis? Or are there any Standard Operating Procedures (SOPs) for dealing 

with foreign governments? 

Response: Each field office handles the process locally with the consulate having 

jurisdiction over that office. There are Standard Operating Procedures for dealing 

with foreign governments and listing country specific requirements for obtaining 

travel documents.

• What are some of the main reasons or problems that can be attributed 

to the length of time it takes many countries to approve the return of their 

nationals? 

Response: Each country has its own process for issuing travel documents. Some 

consular officials have the authority to determine nationality and issue travel documents. Some must have authorization to issue granted by their foreign ministry, 

which can involve lengthy investigations of citizenship and identity. Some countries, 

such as the former Soviet Union, have new citizenship laws that may result in the 

determination that some detainees are ‘‘stateless’’ and not able to be accepted. Other 

countries require personal interviews with their nationals. In the case of Central 
33

America, where the volume of detainees is high, the consular officials conduct a ‘‘circuit run’’ to the various detention facilities in their jurisdiction. This ‘‘circuit run’’ 

can result in a two-week delay in scheduling interviews because of the lack of consular officials to interview at each detention facility. There are also other countries 

with which the U.S. does not have diplomatic relations or which simply do not want 

to accept their nationals who are being removed.

18. A report released last week by the Congressional Research Service (CRS) says 

that from October 2004 to May 2005, the Border Patrol released 65,709 OTMs with 

Notices to Appear (NTAs) because there was not enough detention space available 

to detain them. There cannot be any doubt that more bed space is critical if the Expedited Removal program is going to work.

• How much does an average day of detention cost? 

Response: An average day of detention costs approximately $95 per bed day. The $95 per day figure includes the cost of lodging, detainee welfare, health and medical 

care as well as transportation to proceedings and hearings. DRO obtains detention 

beds at DRO-owned Service Processing Centers (SPCs), Contract Detention Facilities (CDFs) and local or county jail space through Inter Governmental Service 

Agreements (IGSAs).

• How many beds does DRO fill on an average day? 

Response: On average, DRO detained 21,928 aliens in FY 2004 and 19,718 aliens 

in FY 2005. This includes Bureau of Prisons and Office of Refugee Resettlement 

funded bed space. Bed usage over the past several months has sharply increased. 

The average detained population for the last week of FY 2005 was 20,791.

• What is the maximum capacity that DRO has available nationwide? 

Response: Our maximum capacity is our funded capacity, which at the end of 

FY2005 was 18,500, not including the Bureau of Prisons or the Office of Refugee 

Resettlement.

• Does DRO contract with state and county jails to house excess aliens? 

Response: Yes, approximately 52% of ICE detention capacity is acquired via 

intergovernmental service agreements (IGSA) with state and local governments.

• What is the average cost of using local or county jail space? 

Response: DRO utilizes local or county jail space through the use of Inter Governmental Service Agreements (IGSAs). The average cost of utilizing IGSAs for 

FY05 was approximately $60 per bed day. Local or county jail space typically is not 

subject to the Department of Labor wage rates, which distinguishes it from guard 

service for SPCs and CDFs. Additionally, the IGSA average per day rate does not 

include any DRO personnel costs and usually does not include health care, religious 

services, or the cost of local transportation of detainees. The specific negotiated 

IGSA for each local facility utilized dictates how these costs are paid.

• Has DRO investigated different temporary detention options? If so, are 

any in use? 

Response: ICE currently utilizes various types of facilities and acquisition models. For example, temporary detention facilities are maintained at various DHS offices, where aliens may be held for several hours during processing until they can 

be transferred to a facility for longer-term detention. However, ICE does not compromise on the safety and security of the detained population and strives to ensure 

that appropriate conditions of confinement are maintained.

19. How does DRO communicate with Department of State when countries do not cooperate or appear to delay accepting their nationals back? 

Is there a formal process? 

Response: There is no ‘‘formal’’ process established. If the HQDRO TDU cannot 

make progress with an embassy on its own, they then contact the Department of 

State desk officer for that country. HQDRO also has a liaison officer assigned to the 

Department of State who assists in making contact with the desk officers and setting up meetings with foreign embassies. If a formal action is requested against a 

country, DRO communicates with State through official DHS channels. 

• Has DRO ever requested that State use the 243(d) sanction authority to 

force greater cooperation from violating countries? 

Response: Yes, DRO has requested that the Department of State use 243(d) 

sanction authority. In 2000, DRO was successful in coordinating with the Department of State in establishing sanctions against Guyana. Visa restrictions were first 

placed against diplomatic visas for government employees and their families other 

than those required by treaty or international agreement. Within a few weeks, Guyana became compliant and began issuing travel documents. 
34

In the past year, a Visa Sanctions Working Group was formed to explore options 

for dealing with countries who refused to accept their nationals or who delayed 

issuance of travel documents.

20. How many countries have agreed to use the video conferencing system with DRO to facilitate the interview process? How much time will this 

save in the removal process? Do you have plans to try to expand the use 

of Video Tele-Conferencing (VTC) to African, Asian, and Middle Eastern 

countries? If not, why not? 

Response: Three countries have been approached to use video teleconferencing 

(VTC) to facilitate the interview process: El Salvador, Guatemala and Honduras. 

Honduras officially agreed to use VTC in April 2005. The system has been installed 

in the Honduran Consulates in Houston, TX and Los Angeles, CA and will soon be 

completed in Phoenix, AZ. Orders have been placed for systems to be installed in 

the remaining seven consulates in the United States. Discussions with El Salvador 

and Guatemala regarding use of VTC are on going. DRO estimates that the use of 

VTC will save 7 to 10 days of detention for each removal case. There are no current 

plans to expand the use of VTC to African, Asian or Middle Eastern countries. In 

comparison to the three Central American countries, the numbers of detained cases 

for African, Asian and Middle Eastern countries is quite small. Additionally, many 

of these countries do not require a personal interview to determine nationality.

QUESTIONS FOR DANIEL W. FISK FROM HON. DANIEL E. LUNGREN

The Subcommittee understands that it was quite a challenge for the State Department to figure out who to send as a witness for this hearing due to the fact that 

there is no central ‘‘person’’ or ‘‘office’’ who handles this issue. However, we are very 

concerned about that fact since initiative has the potential to have many more foreign nationals who need country clearances and travel documents.

• Can you describe for us, in your view, why the State Department does 

not have a central ‘‘person’’ or ‘‘office’’ to coordinate efforts with foreign 

governments? What are the challenges of centralizing such an effort? 

Response: The Department of State’s role in immigration enforcement is primarily to engage with foreign governments to facilitate their cooperation in repatriating their citizens expeditiously. This activity has traditionally been accomplished through the relevant bureaus and the respective country desks, as these personnel who deal day-to-day with countries are in the best position to gauge the bilateral relationship and communicate with host country embassies in Washington. 

Centralizing such a is complicated by the fact that nations cooperate differently 

on the removal issue, and are open to different types of suasion. In addition, the 

issue of migration relates to other issues and is part of a larger bilateral relationship, and channeling communication and policy through the relevant desks and bureaus ensures that the U.S. Government speaks with one voice.

In March 2005, U.S. Immigration and Customs Enforcement (ICE) launched Operation Community Shield to round up violent street gangs—mainly targeting MS–13 

gang members from El Salvador—and removing them from the United States. When 

the Committee staff was briefed by DHS they were told that El Salvador does not 

want to repatriate its citizens because they believe they have been ‘‘criminalized’’ 

in the U.S. However, when the Committee staff was briefed by the State Department they were led to believe that El Salvador has been cooperative in removal efforts.

• Can you please for the committee whether you currently have problems 

removing these violent street gangs their home country and, if so, describe 

the steps that the State Department is taking to eliminate any impediments 

to removal? 

• As the State Department’s expert in Latin American Affairs, can you 

please describe the challenges to removal with other countries under your 

purview? 

Response: The Department of State shares the Committee’s concerns about the 

gang problem in the United States and is working with the Department of Homeland Security and the Department of Justice to increase the return rate of Salvadoran gang members to El Salvador and work with the Salvadoran government in 

addressing the gang issue. The Salvadoran government has to been cooperative in 

repatriating gang members, but the number of repatriations is not keeping up with 

the detention rate. In coordination with DHS and DOJ, the Department of State is 

with the Salvadoran government to identify what is needed to take back an increased flow of gang members, including more consular resources for interviews, en-
35

hanced communication of criminal records, and improved secure receive returned 

gang members. 

Our Embassy in San Salvador has formed a group with senior Salvadoran government officials to determine specific mechanisms to increase the homeward flow of 

all Salvadoran aliens. The group has met several times, and has generated a working visit to the U.S. by Salvadoran officials to meet with State and DHS officials 

on the issue. 

The challenges to quick removal to other countries in Central America are similar: 

limited consular resources for interviews and travel document issuance to detainees 

in the United States, and limited home-country and resources to expeditiously repatriate their citizens.

Under section of the Immigration and Nationality Act (INA), the Secretary of 

State has the discretion to withhold issuance of visas to nationals of foreign countries who deny or delay accepting their citizens back. However, apparently this authority has never been used, although it has been threatened on rare occasions.

• Can you please explain to the Subcommittee why this authority has not 

been used? What are the considerations that might factor into a decision 

to use this authority? 

Response: Section 243(d) of the INA provides that ‘‘on being notified by Chairman 

Daniel Lungren Security Attorney General that the government of a foreign country 

denies or unreasonably delays accepting an alien who is a citizen, subject, national, 

or resident of that country after the Attorney General asks whether the government 

will accept the alien . . ., the Secretary of State shall order consular officers in that 

foreign country to discontinue granting immigrant visas, or both, to nationals of 

that country until the Attorney General notifies the Secretary that the country has 

accepted the alien.’’ Accordingly, section contemplates notification by the or Attorney 

General (now the Secretary of Homeland Security) before visa issuance is ceased. 

In October 2001, Section 243(d) visa sanctions were imposed against Guyana. 

Guyana had been refusing to accept the return of any of their deportable criminal 

aliens for a lengthy period, in some cases two years. The sanctions were lifted in 

December 2001 when Guyana had issued the requested travel documents. 

In the case of the Central American nations, they are taking back their nationals 

and are working with DHS and the State Department to meet the increased demands on the flow of detainees. Given that DHS’ increased detention and return initiative is quite recent and that Central American nations are cooperating—and to 

cooperate even more—invocation of 243(d) authority would be premature.

The top five OTM (Other Than Mexican) countries for the past four years are all 

Central and South America: Honduras, Brazil, El Salvador, Guatemala and Nicaragua.

• Besides this new policy initiative, what other specific steps is the State 

Department taking to immediately alleviate the problems? In your view, 

what are the most pressing challenges to removal of undocumented aliens 

to Latin America? Please provide specific examples 

• Are we having problems with any of these countries accepting back 

their nationals or taking a long time to provide the clearance? 

• Has the 243(d) sanction been used against any of these countries? 

• What is State’s policy direction to the country desks and embassies for 

these countries as far as negotiating faster and more compliant rocessing? 

• Is State working with the countries to encourage their participation in 

the videoconferencing system? 

Response: The Department of State is in almost daily communication with the 

Department of Homeland Security to coordinate our approaches to Central American officials both here in Washington and in the region. Our Embassies maintain 

a consistent dialogue with host-country officials on the issue of migration, and our 

Embassy in El Salvador has formed a working group with senior Salvadoran government officials to determine the most effective and concrete ways to increase the rate 

of returnees to that country. Here in the U.S., the Government of Honduras has recently inaugurated DHS-funded video-teleconferencing equipment at two of its consulates to expedite consular interviews, and is seeking to refurbish a second airport 

to accept repatriation flights. The issue of accepting an increased flow of returnees 

has also been discussed with the Guatemalan Foreign Minister in late October during a meeting with senior Department of State officials. 

The most pressing challenges to removal of aliens is timeliness. Central American 

governments have not yet deployed sufficient consular resources to quickly interview 

and issue travel documents to all their detained aliens. A second challenge for the 
36

Central American governments is to develop sufficient infrastructure to process a 

larger flow of returnees—including criminal deportees—back into their countries. 

All the Central American countries identified as of priority interest by DHS—

Guatemala, Honduras, and El Salvador—are currently unable to fully meet the 

DHS timelines for interviews, document processing, and alien return. As El Salvador, Guatemala, and Honduras are currently accepting the return of hundreds of 

their nationals, including criminal aliens, sanctions have not formally invoked 

against any of the Central American countries. 

The Department of State is working closely with DHS and host governments to 

identify specific and concrete improvements to accelerate the timely return of detained aliens. State Department policy remains that accepting the return of nationals to their respective countries of assignment is an international obligation, a priority for the U.S. Government, and a measure of the strength of our bilateral relationship. 

As a result of our collaboration with DHS, Honduras is actively participating in 

the videoconferencing system, and Guatemala and Nicaragua are for ways to fit videoconference technology under regulations calling for face-to-face consular interviews.

Can you please describe for the Subcommittee the bilateral policy implications of removing foreign nationals to their home countries? 

Response: Central American governments regard the status of their migrants in 

the United States as a priority foreign policy issue. Changes in U.S. immigration 

policy are viewed politically as a measure of the bilateral relationship. Governments 

will perceive increased removals of their citizens as a deterioration in their overall 

relations with the U.S. and this could affect the outlook for bilateral cooperation.

According to State Department officials who briefed our committee staff, you indicated that the repatriation of foreign nationals is a matter of sovereignty for foreign 

governments. Can you please provide some examples of what other nations 

require to prove citizenship of its nationals and what challenges exist in 

obtaining such proof (documents)? 

Response: Foreign governments have the obligation to accept repatriation of their 

own nationals once the nationality of the alien has been determined. Sorting out 

who is where is the first challenge in the repatriation equation. When aliens do 

have an identity document proving citizenship, such as a birth certificate, a passport, or national identity card (cedula), this is relatively simple. In many cases, however, aliens arrive at the border with no documentation whatsoever. The consular 

interview is therefore the mechanism by which governments verify the nationality 

of those claiming to be citizens but lacking any documentation to back up their 

claim. Once the consular official is satisfied that the alien in question is a citizen, 

he or she can proceed to issue a travel document acceptable for the return of that 

alien.

Your staff indicated that a ‘‘Demarche’’ is a mechanism to request that specific 

steps be taken by the Ambassador to elicit cooperation foreign nation. Can you 

please explain what is involved in process, how often it has been used and 

the results of using this mechanism? 

Response: A demarche is a formal instruction the Department of State to the Embassy in question to deliver an official message to the host government. On September 23, the Department instructed our Ambassadors in Guatemala, Honduras, 

and El Salvador to deliver this formal message—the demarche—to the respective 

Presidents or Foreign Ministers that the United States requests their cooperation 

in repatriating their nationals more speedily. The result of this communication—in 

tandem with the Department’s contacts with Ambassadors resident in Washington—

has been increased willingness of the respective governments to explore how to process their nationals more expeditiously.

Challenges to removal have been described as falling into one of three different 

categories—political, logistical, and legal. Can you please describe for the subcommittee the challenges to removal involved in each of these categories? 

Response: Central American governments pay special attention to their migrant 

communities in the United States, and derive important fiscal and political benefits 

looking after migrant interests. While Central American governments are working 

with us to expedite the removal of aliens, it as at a great political cost for these 

governments. U.S. immigration policy is seen as a bellwether for the bilateral relationships, and the United States removing significant numbers of migrants would 

be viewed as a deterioration of U.S. relations with these governments. 

Logistically, the challenge is for home countries to increase their consular resources to keep pace with the increased detention of their nationals in the United 
37

States. Honduras has already begun to mobilize consular personnel, but the diplomatic services of all three countries will need more personnel and more resources 

to collocate with DHS detention facilities. In addition, Central American nations are 

looking for ways to remodel and refurbish airport infrastructure to accommodate increased numbers of repatriation flights as well as to deal with returned criminals. 

The legal impediments for the return of aliens vary, depending on the laws of 

each country on how to identify their migrants. For some countries, the return of 

minors requires additional steps. One obstacle facing DHS is the decision, which requires DHS to not remove detained Salvadoran migrants for 7 days, to allow them 

to seek counsel. This court decision results in longer stays for Salvadoran migrants 

than otherwise be the case. In addition, asylum claims or other procedural issues 

may restrict DHS removal proceedings.

Do you think that DHS should be prioritizing operationally the expedited removal 

cases versus the regular removal cases? What effect would this have on the process? 

Response: From the perspective of the burden on consular resources, expedited 

removal and regular removal both require increased consular resources on the part 

of governments. The Department of State is working with the Central Americans 

to get those resources and speed up the return of detained nationals back to their 

home countries.

The Subcommittee has been told that foreign nationals detained for a minimum 

of 10 days before we can remove them United States. Is there any statute, regulation, or policy that requires a minimum of 10 day removal period? If not, 

is this something the State Department does as a courtesy to other nations? 

Response: The Department of State has no jurisdiction regarding the length of 

time foreign nationals are detained. DHS notes that scheduling, country clearance, 

and other notification issues require roughly 10 business days before ICE can effect 

removal. There is no statute, regulation or policy that requires this 10 day period, 

though the decision does require DHS not remove detained Salvadoran aliens for 

seven days.

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