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S. HRG. 109–1018 

THE SOUTHERN BORDER IN CRISIS: RESOURCES 

AND STRATEGIES TO IMPROVE NATIONAL SECURITY 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, BORDER 

SECURITY AND CITIZENSHIP 

AND

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND 

HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

JUNE 7, 2005 

Serial No. J–109–24 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

JOHN CORNYN, Texas, Chairman 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JAMES HO, Majority Chief Counsel 

JIM FLUG, Democratic Chief Counsel 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

JON KYL, Arizona, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JOHN CORNYN, Texas 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

DIANNE FEINSTEIN, California 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

RUSSELL D. FEINGOLD, Wisconsin 

RICHARD J. DURBIN, Illinois 

STEPHEN HIGGINS, Majority Chief Counsel 

STEVEN CASH, Democratic Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 3 

prepared statement .......................................................................................... 57 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 59 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 1 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 70 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 71 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 21 

WITNESSES 

Aguilar, David, Chief, Office of Border Patrol, Customs and Border Protection, 

Department of Homeland Security, Washington, D.C ...................................... 5 

Lee, Wesley, Acting Director of Detention and Removal Operations, Immigration and Customs Enforcement, Department of Homeland Security, Washington, D.C. ........................................................................................................... 7 

Verdery, C. Stewart, Jr., Principal, Mehlman Vogel Castagnetti, Inc., and 

Adjunct Fellow, Center for Strategic and International Studies, Washington, D.C. ........................................................................................................... 9 

QUESTIONS AND ANSWERS 

Responses of David Aguilar to questions submitted by Senator Sessions .......... 40 

(Note: Responses to questions submitted to Wesley Lee by Senator Sessions 

were not available at the time of printing.) 

SUBMISSIONS FOR THE RECORD 

Aguilar, David, Chief, Office of Border Patrol, Customs and Border Protection, 

Department of Homeland Security, Washington, D.C, prepared statement ... 50 

Lee, Wesley, Acting Director of Detention and Removal Operations, Immigration and Customs Enforcement, Department of Homeland Security, Washington, D.C., prepared statement ....................................................................... 72 

Verdery, C. Stewart, Jr., Principal, Mehlman Vogel Castagnetti, Inc., and 

Adjunct Fellow, Center for Strategic and International Studies, Washington, D.C., prepared statement ....................................................................... 78 

(1) 

THE SOUTHERN BORDER IN CRISIS: RESOURCES AND STRATEGIES TO IMPROVE 

NATIONAL SECURITY 

TUESDAY, JUNE 7, 2005 

UNITED STATES SENATE, 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND

CITIZENSHIP, AND THE SUBCOMMITTEE ON TERRORISM, 

TECHNOLOGY AND HOMELAND SECURITY, OF THE COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittees met jointly, pursuant to notice, at 2:30 p.m., 

in Room SD–226, Dirksen Senate Office Building, Hon. Jon Kyl 

(Chairman of the Subcommittee on Terrorism, Technology and 

Homeland Security) presiding. 

Present: Senators Kyl, Cornyn, and Sessions. 

OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR 

FROM THE STATE OF ARIZONA 

Chairman KYL. Good afternoon, ladies and gentlemen. This hearing of the Judiciary Committee Subcommittee on—well, we have 

two Subcommittees, one on Terrorism, Technology and Homeland 

Security, which I chair, and on Immigration, Border Security and 

Citizenship, which Senator Cornyn chairs. 

As has been our practice of late, we are going to be conducting 

this hearing jointly with both of these Subcommittees since the 

subject matter of the hearing, ‘‘The Southern Border in Crisis: Resources and Strategies to Improve National Security,’’ clearly falls 

within the ambit of both of our concerns. This hearing continues, 

as I say, a series of hearings that we both conducted on this general subject. 

We are going to be talking today specifically about the widespread concern that most of us share about persons who threaten 

our national security and their ability to take advantage of the chaotic condition at our border with Mexico and enter the United 

States and stay in the United States illegally. 

The hearing will also examine what resources the Department of 

Homeland Security may need to bring the Southern border under 

control so that terrorists and criminals are prevented from coming 

here and staying here. 

Let me say at the outset that Senator Feinstein, who is the 

Ranking Member of the Terrorism Subcommittee, which I chair, is 

on the Intelligence Committee. They have a hearing that absolutely 

conflicted with this today. We tried everything to work out a way 

2 

to resolve it. If at all possible, she will be here. But if she cannot 

be here, of course, her statement will be put in the record as well 

as any questions that she may have for the witnesses. 

As many of you know who have followed my Subcommittee over 

the years—I should say our Subcommittee, because Senator Feinstein and I have worked in a really great bipartisan way on these 

issues and others, as well, and the fact that she is not here today, 

I know is not an expression of a lack of interest on her part but 

simply the fact that, as frequently is the case, we have to be in 

about four places all at the same time. So I know that she will continue to work with me and I am sure that Senator Kennedy will 

do the same with Senator Cornyn. 

I am very pleased that we are going to combine two panels into 

one here today, with the permission of the panelists, and I think 

that works very well because of who is here. Our distinguished witnesses include David Aguilar, who has been before us, I think at 

least twice, offering valuable insights about the border. He is the 

Chief of the U.S. Border Patrol and we appreciate, Chief, your 

being with us here again today. 

Wesley J. Lee, who is the Acting Director of the Office of Detention and Removal for the U.S. Immigration and Customs Enforcement, all of these acronyms, we will probably just say ICE from 

here on in, but that is, of course, within the Department of Homeland Security and we are very appreciative of your being here. Congratulations on your assignment to that post, Mr. Lee. 

And Stewart Verdery, who is going to join this panel instead of 

being on a panel all by himself, served with distinction as the Assistant Secretary for Policy and Planning at DHS’s Border and 

Transportation Security, is now a principal at Mehlman Vogel 

Castagnetti, Inc., and will be able to also offer insights into our 

subject today, and we appreciate your written statement, Mr. 

Verdery. It is a very thoughtful piece and I appreciate that. 

Just to make a couple of preliminary comments here that help 

to set the stage for what we are talking about today, those of us 

who represent States along the border have long been concerned 

not only with the other aspects of the people who cross our border 

illegally, but also the potential for terrorists to smuggle themselves 

across the border. And this is a concern that has been shared by 

senior Department officials. 

For example, on February 16 of this year, the former DHS Deputy Secretary Loy advised the Senate Intelligence Committee that, 

and I am quoting now, ‘‘that our recent information from ongoing 

investigations, detentions, and emerging threat streams strongly 

suggests that al Qaeda has considered using the Southwest border 

to infiltrate the United States. Several al Qaeda leaders believe 

operatives can pay their way into the country through Mexico and 

also believe that illegal entry is more advantageous than legal 

entry for operational security reasons.’’ 

Secretary of State Condoleezza Rice later commented that, and 

I am quoting again, ‘‘we have, from time to time, had reports about 

al Qaeda trying to use our Southern border. It is no secret that al 

Qaeda will try to get into this country by any means they possibly 

can. That is how they managed to do it before, and they will do 

everything they can to cross the borders.’’ 

3 

I would note also that it is no longer possible for us to say that 

we are not aware of any situation in which a terrorist has crossed 

the Southern border because we now are. 

And despite the concerns that have been expressed here and by 

many of us over the past several months, our government, we contend, has still not committed the resources necessary to secure the 

border, a fundamental task, of course, or responsibility of the 

United States Government. And as a result, our Southern border 

is in chaos, thousands of illegal aliens crossing into the United 

States each week. 

Many of these aliens, incidentally, are not from Mexico, but they 

come from countries all over the world, usually flying into Mexico 

and then sneaking across the border on front. Many don’t have authentic identity documents. Many don’t carry documents at all. We 

don’t even know who many of them are. We do not know whether 

they intend to simply find work or whether they plan to engage in 

acts of terror in the United States, or are here to commit crimes 

in our society. 

This hearing is devoted in part to exploring what strategies DHS 

has in place to deal with these third-country nationals who are referred to as the ‘‘other than Mexicans,’’ or OTMs. It is my understanding that the Department continues to engage in the practice 

of releasing OTMs into the United States because it lacks the detention facilities to hold them, and we need to know precisely what 

resources DHS needs to bring an end to that practice, which we believe is a great hazard to our national security and public safety. 

And we want to know what, if anything, the Mexican government is doing to assist the United States in deterring the flow of 

these OTMs across our common border. I think many Americans 

have been surprised by the negative quality of recent statements 

of highly placed Mexican officials who appear at least to me to disparage our concerns about unchecked immigration at the border. 

These and many other issues, including the expedited removal 

procedures and other resource issues, we will be getting into in this 

hearing, and as I say, we have an excellent panel to provide information to us in that regard. 

Before we turn to the panel, let me turn to my Co-Chairman, 

Senator Cornyn from Texas. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Chairman CORNYN. Thank you, Senator Kyl, and I appreciate the 

opportunity to Co-Chair another one of these important series of 

hearings that we have been having leading to what I know we both 

hope will be comprehensive immigration reform in this Congress. 

Senator Kyl and I have been working, along with our colleagues, 

the Ranking Member of the Immigration Subcommittee, Senator 

Kennedy, the Ranking Member of the Terrorism Subcommittee, 

Senator Feinstein, to try to develop information that we think will 

be useful, indeed essential, for members of the Senate to have, of 

this Congress to have, as we try to attack these problems. 

We are, I think it is fair to say, conducting a top-to-bottom, or 

maybe I should say bottom-to-top, review of the nation’s border security and enforcement efforts. That review has provided important 

4 

information that we have already used to draft at least Title I of 

the comprehensive immigration reform bill that Senator Kyl and I 

will coauthor and will drop in its entirety later this month. I look 

forward to continuing the work in this area as we move forward 

toward crafting that comprehensive immigration reform bill. 

As we have said before and we will say again, our immigration 

and border security system is badly broken and has suffered from 

years of neglect. This leaves our borders unprotected, threatens our 

national security, and makes a mockery of the rule of law. We cannot continue to ignore our border security or at least fail to provide 

the resources necessary to let our hard-working men and women 

who are given that assignment and who have graciously accepted 

it to be successful, and it is going to take additional resources and 

additional commitment by the Congress to give them what they 

need in order to do the job we have asked them to do. 

Today’s hearing will illustrate the national security threat posed 

by aliens from countries other than Mexico, as Senator Kyl has 

said. In my State, which has 65 percent of our nation’s common 

border with Mexico, we have seen a tremendous increase in the 

number of arrests of other-than-Mexican aliens. In fact, a majority 

of this year’s OTM apprehensions have occurred in the Texas sectors. This year, the Border Patrol has apprehended approximately 

96,000 OTMs. Ninety percent of these arrests have occurred at the 

Southwest border. And of the Southwest border arrests, more than 

76,000 have occurred in the Texas sectors. 

To make matters worse, as we have noted, because of lack of adequate detention facilities, the vast majority of these OTMs are simply given a notice to appear and released into our country. Obviously, the majority of them melt into the landscape and are never 

heard from again. Whether it is in Texas, Arizona, or California, 

or anywhere else in this country, this state of affairs is unacceptable and needs to change. 

Senator Kyl has already mentioned the testimony of Admiral 

Loy, the Deputy Homeland Security Secretary, suggesting that the 

same routes available for economic immigrants are available for 

those who might want to come here to do us harm. And I will say 

from my travels on this most recent recess to the Balkans Peninsula, we have heard from our intelligence and national security 

personnel stationed in other parts of the world that they are very 

much concerned about the ability of aliens to transit, for example, 

in Turkey, to get into places like Greece, to then transit into the 

European Union, and then to smuggle themselves, with the aid of 

professional smugglers, into Mexico and thence into the United 

States. This is not just some pipe dream. This is not some fantasy. 

This is reality. That potential is there, and, in fact, those routes of 

travel are available for people who do want to do us harm. 

And it is also important, in conclusion, to remember that the people who are engaged in human smuggling do so for money, the 

same reason that people who smuggle illegal drugs, who traffick in 

persons, and who would provide a means of ingress into this country for terrorists, they do so for money. They are, in essence, criminals who are looking to make a profit. 

So the same way that people who want to come here to work 

come into the country illegally, that avenue is available for people 

5 

who want to come here to do us harm. We simply need to get control of the situation, and that is the goal of our hearings and of the 

legislation that Senator Kyl and I will file later on this month. 

But I want to say thanks again to the panel, again to Chief 

Aguilar for his repeat performance here, and Mr. Lee and Mr. 

Verdery. Thank you for being here with us. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Chairman KYL. Thank you, Senator Cornyn. 

Let me again thank our administration witnesses for agreeing to 

have a former administration witness on the panel with you. I 

know you all have worked together and I appreciate that spirit of 

cooperation. 

What I would like to do is ask each of you to speak, and if you 

could limit your comments to about five minutes, we would appreciate that, and then we will simply begin our round of questioning. 

Your full statements, of course, will be put in the record. 

For the audience, let me again introduce our panelists. David 

Aguilar is Chief of the Border Patrol, U.S. Customs and Border 

Protection of the Department of Homeland Security. And, by the 

way, I might say, the previous Tucson Sector Chief in the State of 

Arizona. 

Wesley Lee is Acting Director of Detention and Removal Operations for the U.S. Immigration and Customs Enforcement, Department of Homeland Security. 

And C. Stewart Verdery, Jr., is a principal of Mehlman Vogel 

Castagnetti, Inc., and an Adjunct Fellow of the Center for Strategic 

and International Studies here in Washington, D.C., and former 

administration official, as I indicated earlier. 

With that, Chief Aguilar, the floor is yours. 

STATEMENT OF DAVID AGUILAR, CHIEF, OFFICE OF BORDER 

PATROL, CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. AGUILAR. Thank you, Senator. Good afternoon, Chairman 

Kyl and Chairman Cornyn. 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 United States Border Patrol along our nation’s borders. 

As you know, the Border Patrol operates exclusively between the 

ports of entry, but very importantly, also conducts what we refer 

to as in-depth enforcement operations in direct support of border 

enforcement as it relates to securing our nation’s borders. Our 

agents conduct operations along our nation’s borders with Mexico 

and Canada, over 6,000 miles of our Northern and Southern border, coastal, and Florida Gulf Coast area also, along with Puerto 

Rico. 

Our recently revised Border Patrol National Strategy has six 

basic core elements to it: Securing the right combination of personnel, technology, and infrastructure; improving mobility and 

rapid response to quickly counter organized crime organization 

shifts gives us the ability to act on tactical intelligence; deploying 

defense in depth that makes full use of interior checkpoints and enVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
6 

forcement operations designed to deny illegal migration; partnerships—partnerships with other law enforcement organizations to 

achieve our goals and objectives; improving border awareness and 

intelligence; and strengthening the headquarters command structure. 

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

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 of this is the Arizona Border 

Control Initiative Phase 2, currently underway in our Tucson and 

Yuma sectors in Arizona. Because of our strategy, we were able to 

quickly identify and mobilize the resources that were necessary 

that we felt to apply as quickly as possible in Arizona. Two hundred Border Patrol agents were temporarily detailed and are still 

there. We literally doubled—more than doubled—the aerial platforms that were necessary to conduct patrol operations in Arizona 

to 54. We are currently in the process of permanently reassigning 

over 155 Border Patrol agents into Tucson and the Yuma sectors. 

Today as we speak, during the ABCI time period, arrests are down 

by 21 percent. Air support, the number of flights are up by 250 percent—or 200 percent, excuse me, as compared to the year before. 

Flight hours are up by over 250 percent. 

Defense in depth, transportation hub, something that is absolutely critical to our operations, Sky Harbor Airport in Phoenix. We 

currently have control of that very important transportation hub to 

the smuggling organizations. As we speak, Senator, we apprehend 

less than one, on an average, less than one illegal alien at Phoenix 

Sky Harbor on a daily basis. This is not the picture that used to 

be there over two years ago. We have expanded our operations into 

some of the Greyhound Bus stations, Amtrak, and things of this 

nature, where our arrests in the last two months have only numbered 1,000. Now, we will continue to work on that to get those 

numbers down. 

The Tohono O’odom Nation, arrests are down during the ABCI 

time period by nine percent. Although this number is not significant, the following number is. Sixty-one percent is the number that 

calls from other agencies are down within the Tohono O’odom Nation, to include the police department of the Tohono O’odom Nation, based on illegal immigration calls. That is significant. 

Nationwide, fiscal year to date, the Border Patrol as a whole has 

apprehended over 800,000 illegal aliens, interdicted 886,000 

pounds of marijuana, and over 7,400 pounds of cocaine. We have 

also arrested over 98,000 other than Mexicans. And as of September of last year, we have arrested 94,748 criminal aliens, identifying them by using the IDENT/IAFIS fully integrated system 

that has worked out tremendously for us. 

Our objective is nothing less than a border under operational 

control. We recognize that the challenges that lie ahead and the 

need for a comprehensive enforcement approach needs to be comVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
7 

prehensive. Our national strategy gives us a means by which to 

achieve our ambitious goal. 

CBP Border Patrol is tasked with a very complex, sensitive, and 

difficult job. The challenge is great, but it is also one that our men 

and women face every day with vigilance, dedication, and integrity 

as we work to strengthen national security, protect our nation’s 

borders, and our citizens. 

The Border Patrol Customs and Border Protection and its men 

and women are committed to assertively and aggressively expand 

our operations and continue to build on our nation’s security. I 

thank the Subcommittee and look forward to any questions that 

you might have of me. 

Chairman KYL. Thank you, Chief Aguilar. You were right on the 

button here. 

Could I just ask you to reiterate three numbers, and give them 

to me from the time period. I am not sure I caught the time period. 

You said that there had been 98,000 OTMs apprehended since 

some— 

Mr. AGUILAR. This is the fiscal year, sir. 

Chairman KYL. During this fiscal year? 

Mr. AGUILAR. Yes, sir. 

Chairman KYL. Okay. And over 800,000 illegal immigrants total 

apprehended this fiscal year? 

Mr. AGUILAR. Yes, sir, 812,000. 

Chairman KYL. Eight-hundred-and-twelve thousand. And the 

number of wanted criminals? 

Mr. AGUILAR. Ninety-four-thousand-seven-hundred-and-fortyeight. 

Chairman KYL. Ninety-four-thousand-seven-hundred-and-fortyeight. Those are all this fiscal year? 

Mr. AGUILAR. Yes, sir. 

Chairman KYL. Great. 

Mr. AGUILAR. That last figure is from September 1 of 2004, so 

it is a month— 

Chairman KYL. So it is a month more. 

Mr. AGUILAR. Yes. 

Chairman KYL. Okay, great. Thank you very much. 

[The prepared statement of Mr. Aguilar appears as a submission 

for the record.] 

Chairman KYL. Mr. Lee? 

STATEMENT OF WESLEY LEE, ACTING DIRECTOR OF DETENTION AND REMOVAL OPERATIONS, IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. LEE. Good afternoon, Chairman Kyl, Chairman Cornyn, and 

distinguished members of the Committee. My name is Wesley Lee 

and I am Acting Director of the Office of Detention and Removal 

Operations for the Immigration and Customs Enforcement. It is my 

privilege to appear before you today to discuss detention and removal operations in the enforcement mission. 

Detention and Removal Operations’ core mission is the apprehension, detention, and removal of removable aliens and the management of a non-detained docket. DRO employs a number of tools to 

8 

accomplish this mission. One of these tools, expedited removal, allows the Department of Homeland Security to quickly remove certain aliens who are either seeking entry or who have recently entered the U.S. illegally while ensuring appropriate protection for 

aliens with a well-founded fear of persecution. 

But first, I would like to briefly share with you some benchmark 

numbers that show the direction in which we are moving and examples of initiatives we have implemented to achieve better enforcement results. 

In fiscal year 2004, the Office of Detention and Removal Operations reached record levels in terms of removals, fugitive alien apprehensions, and management of detention bed space. Detention 

and Removal officers removed 160,000 aliens from the United 

States, including 85,000 aliens with criminal records. During fiscal 

year 2004, as of April 30, 2005, DRO removed over 75,500 aliens, 

including 45,000 criminal aliens. In addition, during 2004, ICE had 

16 fugitive operations teams deployed across the country. These 

teams apprehended 11,000 fugitive aliens with final orders of removal, a 62 percent increase from the prior fiscal year. The yearto-date statistics for 2005 include apprehending over 7,784 fugitive 

aliens. 

On September 13, 2004, the Department of Homeland Security 

began implementing expedited removal on a limited basis between 

ports of entry. This expanded expedited removal applies to aliens 

who have no valid entry document or who have fraudulent travel 

documents who are apprehended within 100 air miles of the border 

and who cannot demonstrate that they have been present in the 

United States for over 14 days following their illegals entry. 

Expanded expedited removal has primarily been directed toward 

third-country nationals, nationals of a country other than Mexico 

and Canada, and to certain Mexican and Canadian nationals with 

criminal histories, involvement in alien smuggling, or a history of 

repeat immigration violations. The expanded ER authority has 

been implemented in the Tucson and Laredo Border Patrol sectors. 

As of May 16, 2005, 8,452 aliens had been placed in such ER proceedings, with 6,792 being removed. 

The use of expedited removal orders, which prohibits reentry for 

a period of five years, can deter unlawful entry, and it also makes 

it possible to pursue criminal convictions against those aliens who 

continue to enter the United States in violation of the law. 

The most important benefit of the expedited removal process is 

that it can accelerate the process of the inadmissible aliens because 

aliens in ER are generally not entitled to a hearing before an immigration judge nor are the aliens eligible for release on bond. On average, the detention time for third-country naturals in regular INA 

240 removal proceedings takes 89 days, versus the ER average of 

26 days for those third-country nationals not claiming credible fear. 

The overall length of stay for all expanded expedited removal cases 

is 32 days. 

Expedited removal and detention can be excellent tools to deter 

illegal migration, but they must be carefully managed with the appropriate human resources and transportation requirements. Mandatory detention ensures measurable progress toward a 100 percent removal rate. Deterring future entries and accelerating reVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
9 

moval of aliens ordered removed will enhance DHS’s ability to secure the border and to focus its resources on threats to public safety and national security. 

Detention and Removal fully supports the principle of expedited 

removal, as it can deter foreign nationals from illegally entering 

the United States, ensures an expeditious removal of those entering the United States illegally, and reduces the growth of the absconder population. Expansion of the expedited removal program 

across the entire Southwest border would require a reallocation of 

DRO resources, including bed space, removal costs, and personnel 

to manage the removal of the increased number of aliens. The DHS 

immigration enforcement mission—as the DHS immigration enforcement mission evolves, it is imperative that DRO is positioned 

to assure success. 

In conclusion, the ability to detain aliens while inadmissibility 

and identity is determined as well as to quickly remove aliens 

without protection claims is a necessity for national security and 

public safety. By aggressively enforcing our immigration laws, we 

seek to deter criminal and terrorist organizations who threaten our 

way of life, and we seek to strengthen the legal immigration process for worthy applicants. 

I would like to thank you, Mr. Chairman and members of the 

Committee, for the opportunity to testify today on behalf of the 

men and women of the Detention Removal Operations program. I 

look forward to answering any questions you may have. 

Chairman KYL. Thank you very much, Mr. Lee. 

[The prepared statement of Mr. Lee appears as a submission for 

the record.] 

Chairman KYL. In connection with your testimony, I want to insert, and without objection will insert in the record at this point, 

an article that was prepared by Jerry Camer, who is an excellent 

reporter, has done some excellent reporting on this subject generally that deals, among other things, with the numbers from 

Brazil, which you referred to in your written testimony, Mr. Lee, 

and which I found very helpful. 

Mr. Verdery, let me just say, your written statement is so 

lengthy and complete, if you need to take a few minutes beyond 

five to summarize the contents, you are sure welcome to do it, but 

I appreciate the written testimony. 

STATEMENT OF C. STEWART VERDERY, JR., PRINCIPAL, 

MEHLMAN VOGEL CASTAGNETTI, INC., AND ADJUNCT FELLOW, CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES, WASHINGTON, D.C. 

Mr. VERDERY. I will try to keep it around five minutes if I can, 

Senator. Chairman Kyl, Chairman Cornyn, thank you for having 

me back to the Committee to talk about critical issues about securing our nation’s borders. As you mentioned, I am a principal at the 

consulting firm of Mehlman Vogel Castagnetti. I am also an Adjunct Fellow at the Center for Strategic and International Studies. 

As Assistant Secretary for Border and Transportation Security 

Policy until my resignation from Homeland Security in March, I 

was responsible for policy development within BTS. Our responsibilities covered immigration and visas, cargo security, transporVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
10 

tation security, law enforcement, and were carried out in the field 

largely by ICE, by CDP, and by TSA. 

I thank the Committee for its extremely important efforts to support the Department during my tenure and I am very pleased to 

be participating with my former colleagues and very much appreciate their flexibility on having me join this panel and not being 

a lone ranger afterwards. The accomplishments I talk about here 

would not have been possible without their leadership, as well as 

their other chain of command. 

I am confident that the dissolution of INS and the assumption 

of INS responsibilities by DHS two years ago has fueled a great 

progress in fixing our immigration systems. From deployment of 

US–VISIT and the biometric visa program, to a valuable focus of 

our detention and removal systems on violent criminal aliens, to 

the Arizona Border Control Initiative, to significant reductions in 

the backlog in legal immigration applications, DHS has brought 

new integrity to our immigration systems. 

It is now time to take the bold step of enacting a legislative package to legalize employment opportunities for the millions of undocumented workers who wish to remain in or travel to the United 

States to work and to secure the border against terrorists and 

criminals by deploying a new generation of legal tools, enforcement 

resources, and international cooperation at the border. 

I will admit, when President Bush unveiled his immigration 

principles in January of 2004, I was somewhat skeptical. There 

were many commentators who presented the issue as a choice between a new worker program and border security. But two years 

in the trenches has convinced me that was wrong. It is the passage 

of a properly developed and properly funded guest worker program 

that will bring massive improvements to border security and thus 

homeland security. 

Following the footsteps of millions before them, hundreds of 

thousands of undocumented aliens each year cross the border illegally in search of work who present no risk of terrorism or criminal 

activity. Border Patrol agents in the field, however, have no way 

of differentiating between the individuals that make up this flood 

of human migration and the small but crucial number of terrorists 

or criminals that attempt to blend into the masses. Providing those 

who want to work and have no prior criminal or terrorism record 

a means to enter the country legally through ports of entry will 

make it much more likely that the Border Patrol will be able to locate and arrest criminals and terrorists who will lose their cloak 

of invisibility that the current situation offers. 

Now, those who are skeptical of this argument have understandable reasons for this view. For decades, enforcement tools to combat illegal immigration have gone underutilized, underfunded, or 

unsupported by the employer community, and while DHS has made 

substantial progress in enforcing the current regime, deploying a 

new guest worker program will take significant new resources for 

border and employment enforcement, for port of entry operations 

and facilities, development and issuance of tamper-proof identification documents, streamlining of legal regimes that adjudicate the 

status of border crossers and undocumented aliens, and new avenues of cooperation between the U.S. and Mexican governments. 

11 

All of these enhancements to our current enforcement posture 

should support a basic motto of any new legislation: Deter and reward. Those who are seeking to enter our country to work must be 

faced with the reality that crossing our borders illegally or attempting to work without proper certifications will be detected and punished with long-term consequences. In contrast, those who follow 

the rules on applying to work and pass a security check and cross 

the border legally through ports of entry should be rewarded with 

employment and retirement and travel privileges. 

My written testimony discusses ten specific recommendations I 

would make in this regard, and I will focus on three, and these are 

all remarks: Expedited removal, US–VISIT, and our relationship 

with Mexico. 

As you know, September of 2004, DHS expanded authority to 

place illegal migrants into expedited removal proceedings in two 

Border Patrol sectors in Laredo and Tucson, and our prior witnesses discussed how this works. It is a common sense means of 

removing migrants who have no legal right to enter the U.S. and 

deterring others from making the journey. It was not possible to 

detain tens of thousands of aliens as they went through an elaborate legal process, and most were served with appearance orders 

and released into the interior of the United States. Not surprisingly, a large percentage of them failed to appear for their hearings 

and vanished into our towns and communities. 

The striking increase of the number of countries other than Mexico that you mentioned in your statement, Senator Kyl and Senator 

Cornyn, represents a massive new wave in migrants that brings 

significant concerns that nationals from countries with more terrorism activity than Mexico may be utilizing the Southern border 

to enter the U.S. By utilizing ER to hold all OTMs in ICE detention facilities, communities are spared that risk of having OTMs 

not appear for their deportation proceedings. As was mentioned, 

cutting the average length of detention from approximately 90 days 

to 26 days is the type of real reform we need. 

ER will end the perception that we currently have a catch-andrelease policy, and it is time for ER to be expanded to all Southern 

border sectors. 

In terms of US–VISIT, the deployment to our vehicle lanes, to 

hundreds of lanes at ports of entry and exit represents an immense 

technical challenge. The country currently operations with the 

prior generation border crossing cards that were not designed for 

a biometric entry or exit check, and it makes sense to me, as we 

build out the entry-exit facilities and we are passing a temporary 

worker program, to utilize the fingerprint and vetting systems at 

the heart of US–VISIT to secure the new worker program. This 

would mean any applicant would submit ten fingerprints, go 

through a full IDENT and IAFIS check for terrorism and criminal 

history activity, and be required to obtain a unique biometricallyenhanced travel document that would also serve as an employment 

verification tool at their place of employment. It would also require 

Congress to fund US–VISIT aggressively, especially money designed for facilities improvements at our ports of entry. 

My written statement goes into many areas of cooperation I 

would suggest with Mexico. I won’t go into them here. 

12 

The basic other point I wanted to make is these proposals address the machinery by which new entrants, legal and illegal, 

should be handled. Of course, any new temporary worker program 

also has to be structured to allow existing undocumented aliens 

and workers to apply for employment. The security imperative for 

this class of aliens is that they undergo a vetting before they have 

continued employment in the U.S. for terrorism and criminal ties. 

But I see no reason why the security check cannot be conducted 

while the worker remains in the United States. 

We have made a great deal of progress in less than two years 

to fix a broken immigration system. Building a system based on the 

principles of deter and reward will bring us to secure an effective 

border our economy needs and our security demands. I look forward to your questions. 

Chairman KYL. Thank you very much. 

[The prepared statement of Mr. Verdery appears as a submission 

for the record.] 

Chairman KYL. All three statements are great, and I do want to 

put in the record at this point opening statements by both Senator 

Kennedy and Senator Feinstein, without objection. 

For the benefit of folks that are not familiar with it, perhaps— 

and Mr. Lee, you may be the best person to start this off, but any 

of you can answer the question, I know—let us assume that Border 

Patrol comes across a group of 20 people, or a law enforcement entity calls Border Patrol and says, ‘‘We have 20 people here who 

claim to be illegal immigrants. Would you please come get them.’’ 

And so Border Patrol shows up, or has these 20 people in custody, 

perhaps just one Border Patrol agent, and let us say that you are 

20 miles from a border town. 

Now, let us further assume that, as it turns out, half of these 

people are not from Mexico. They are OTMs. Let us further assume 

that a couple of these people are from what you call countries of 

interest, or countries of special interest, and that intermingled in 

this group are a couple who have criminal warrants out or a criminal background in the United States of America. So you have got 

kind of the whole mix of folks involved in this group of 20. 

Now, what as a practical matter does the Border Patrol do with 

these 20 people? Kind of take it from the time, and maybe, Chief, 

you can start with, okay, now he has got these 20 people. They are 

all sitting on the ground. He has gotten them a jug of water and 

so they are all having a drink of water now. What does he do from 

that point? How do they get processed? How do they get checked? 

How do they get separated out, those of interest and not? How do 

they get returned to Mexico or not? How is the determination made 

for those who are eligible for expedited removal because they clearly have only been here a week, let us say, and it is within 100 

miles of the border. 

So how does that all work for these different cohorts to better understand exactly the issues? And let us further stipulate that there 

is no detention space available anywhere for the OTMs. 

Mr. AGUILAR. Yes, sir. Given that we have got a whole array 

here of Mexican aliens, OTMs, special interest country aliens, 

criminal aliens, things of that nature, I will run you through the 

quick process on each one of them. 

13 

Basically, on the Mexican aliens that are apprehended, if they 

are, in fact, eligible for voluntary departure, which means that they 

have not committed a crime in the United States, are not wanted 

or anything of that nature, then they would be voluntarily returned, processed within a matter of minutes for each one of them, 

eight to ten minutes per, and they would be processed and returned back into Mexico. 

Chairman KYL. And the processing would include what? 

Mr. AGUILAR. The processing would include biometric information, IDENT/IAFIS. We would run through those checks. We would 

capture the information on our databases, which is in force— 

Chairman KYL. Excuse me, that is ten fingerprints or— 

Mr. AGUILAR. Yes, sir. IDENT/IAFIS is now a full ten set of fingerprints that gives us the data check on any kind of criminal 

background that may exist within those databases. 

Chairman KYL. And no criminal background on eight or nine of 

these folks. Then what happens to them? 

Mr. AGUILAR. If they are Mexican aliens, then they are set up for 

voluntary departure. The processing on that is pretty—doesn’t take 

a lot of time. Within ten, 15 minutes or so— 

Chairman KYL. And they are put in some kind of transportation 

to the nearest border town? 

Mr. AGUILAR. Yes, sir. They are held for a very short amount of 

time at the Border Patrol stations awaiting for basically the buses 

or the vans to go back to the Mexican ports of entry for return into 

Mexico. 

Chairman KYL. Got it. Now, let us say that the fingerprints find 

that you have got somebody that is wanted on a criminal charge, 

a felony charge in the United States. What happens to that person? 

Mr. AGUILAR. At that point in time, we will make a determination as to whether the authority that has a wants or warrants on 

them will want to extradite or take custody of the individuals. If 

they do, we will hand them over to that authority for prosecutorial 

purposes. At that point, we will also place a hold, an immigration 

hold on these people to ensure that once they go through that prosecutorial process, at the end of that process, we in DHS take them 

back into the custody to continue with the administrative removal 

after having served the time due to the prosecution of the criminal 

wants or warrants. 

Chairman KYL. And that is going to require some detention 

space for you all during the period of time before you transfer them 

over to the jurisdiction that has the warrant. 

Mr. AGUILAR. Yes, sir. That will be a short amount of time. Typically in those criminal wants or warrants cases, the responding 

agency will be pretty timely in responding. Detention and Removal 

does assist us with holding them temporarily while we turn them 

over to those other prosecuting agencies. 

Chairman KYL. Okay. Now, you have got some folks from, I will 

just cite two countries. One of the countries, let us say, is Brazil, 

a couple of folks from there, and a couple of folks from Saudi Arabia. What happens there? 

Mr. AGUILAR. On the—let us start with the ones from Brazil. 

From Brazil, since they are not a special interest country, what we 

would do is again run them through all of our databases to make 

14 

sure that they are not criminally involved or have any kind of 

nexus to terrorism, even though they are not from a special interest country. We want to ensure that every individual, regardless of 

where they are coming from, have no, or pose no threat to the security of the United States. 

After having verified that, then we will process them as other 

than Mexicans. At this point, we will make a determination as to 

whether, if ER is available to us, that they will be placed into expedited removal— 

Chairman KYL. Now, ER or expedited removal is available right 

now in how many sectors along the border? 

Mr. AGUILAR. Expedited removal for an OTM alien coming into 

the country is available in Tucson and Laredo. 

Chairman KYL. Only two sectors out of how many? 

Mr. AGUILAR. It is out of 20 sectors. 

Chairman KYL. Okay. 

Mr. AGUILAR. Nine are along our Southwest border with Mexico. 

In addition to that, Senator, it is important that I point out that 

in the remaining sectors which are within the Ninth Circuit Court 

of Appeals, which is San Diego, Central, and Yuma, we also have 

ER available to us if, in fact, that Brazilian had previously been 

in the United States, had previously been deported, and we can 

now—we used to be able to reinstate. Now we can’t, because of an 

adverse decision by the Ninth Circuit Court of Appeals. So specific 

to that grouping, we can apply ER to that grouping. To where those 

people have been formally deported in the past, we can now apply 

ER. 

Chairman KYL. Okay. So you haven’t yet gotten to the person of 

special interest, but let us say that the two Brazilians, now, is 

Brazil a country that takes our aliens who are eligible for this process? 

Mr. AGUILAR. For— 

Chairman KYL. For expedited removal? 

Mr. AGUILAR. Once they go into the expedited removal process— 

maybe it is easier if I explain it this way, sir. Once we place that 

person in expedited removal, the Border Patrol agent makes a determination that that person is not going to be claiming political 

asylum or has no credible fear, things of that nature. At that point, 

we hand off the alien once he is processed, he or she is processed, 

into Detention and Removal. Once that alien is placed in expedited 

removal, they are mandatory detention cases. In the case of Tucson 

and Laredo currently, we are detaining 100 percent of the people 

that we are placing in expedited removal. 

Chairman KYL. And it takes an average of about a month to complete that process today. Now, before we get to the special interest 

cases, again, what is the situation with regard to countries that 

take aliens versus those who do not? Mr. Lee, do you want to talk 

about that for a minute? 

Mr. LEE. Yes. Most countries— 

Chairman KYL. Or easily take them. 

Mr. LEE. Most countries do easily take their detainees back. 

Some of them, not as soon as we would like, but they have a process themselves. Some countries, you know, the nationals that enter 

the United States are fairly large, so just the presentation to the 

15 

foreign government to interview their national and issue a travel 

document is time consuming for them. But most will issue travel 

documents. It is just a process that you have to go through. 

Of course, the ones that don’t issue travel documents falls under 

that decision that if we can’t remove them, if we can’t remove them 

within 180 days, then we have to release them here in the United 

States. 

Chairman KYL. Now, what does that mean, and how many countries or how many cases are there—I am sorry, I am over my five 

minutes. Let me just pursue this line of questioning and then turn 

it over. 

So now let us say you have got a country, and I don’t want to 

name a country, I think I can name one, but name one that it is 

difficult for us to get to take aliens back. 

Mr. LEE. I would name Vietnam. 

Chairman KYL. Okay. 

Mr. LEE. In those cases, Vietnam won’t take their nationals back. 

On very rare instances, will they take their nationals back. 

Chairman KYL. So you have this person in detention. You have 

determined that the individual is Vietnamese, not here with an 

asylum case at all, and it is a country that doesn’t easily take their 

folks back. So then what happens to the individual? 

Mr. LEE. We can detain up to 180 days after removal and then 

if it is not reasonable that we are going to be able to remove them, 

we have to release them. 

Chairman KYL. So you have to release them back into our society? 

Mr. LEE. That is right. 

Chairman KYL. Are they required to do anything, or are they 

supposed to do anything? 

Mr. LEE. We have reporting requirements that we can place on 

them, but they can violate the reporting requirement, we can take 

them back into custody, but then we will have to release them 

again. There is— 

Chairman KYL. So as a practical matter, if a country doesn’t take 

their aliens back or their citizens back, these people end up in our 

society and whether or not they ever report is based upon their 

good faith? 

Mr. LEE. Yes, that is true. 

Chairman KYL. Do you have any idea of how many countries or 

how many people we are talking about per year in that category? 

Mr. LEE. I don’t have a number. 

Chairman KYL. If you don’t, maybe you can get that for the 

record. 

Mr. LEE. I can. 

Chairman KYL. Are there several countries that are pretty slow 

or reluctant to take their citizens back? 

Mr. LEE. Well, there are four that we really can’t remove to at 

all, very limited basis— 

Chairman KYL. Can you name those countries? 

Mr. LEE. We have Laos, we have Vietnam, we have Cuba that 

we can’t release to, and Cambodia. Cambodia is starting to take 

back a little now. We are seeing some progress in that area. But 

those are basically the ones. 

16 

Chairman KYL. Okay. Now, let us go back, because we found 

that there are two of these folks from—and I am not—any particular country, I am just using for an example, but I believe that 

Saudi Arabia is a country of special interest— 

Mr. LEE. Yes, sir. 

Chairman KYL.—and if that is the case, what happens to, let us 

say, two of these folks from Saudi Arabia? What happens to them? 

Mr. AGUILAR. At the point of apprehension? 

Chairman KYL. Yes. You find out that they are from Saudi Arabia one way or another. I guess the fair question is, how might you 

find out if they are not really cooperative in telling you? 

Mr. AGUILAR. Yes, sir. On the Saudi Arabians, on the OTMs that 

we suspect to be from a country of special interest, we would, of 

course, run them through all of our databases, all our data checks 

and everything else that we have. In the cases of special interest 

countries, we go the extra step, if you will, to make sure that not 

only our systems checks but also FBI, JTTF, the intelligence community to the degree possible is running all these checks. 

At that point, once we are satisfied—and that satisfaction goes 

beyond just the database checks. It goes to the point to where the 

officer making the detention has to be fully satisfied that there is 

no threat to the United States. At that point, we continue the processing and basically try and hold them for removal from the United 

States, and that is a formal removal process whereby we will process them and hand them over to the Detention and Removal Office. 

Chairman KYL. So if the determination is made that they are 

from a country of interest but that they themselves pose no threat, 

they are turned over to Detention, and at that point, the formal removal process is commenced, is that correct, Mr. Lee? 

Mr. LEE. That is correct. 

Chairman KYL. How many times does it occur that there is no 

space for these folks? 

Mr. LEE. For the special interest countries—we have got about 

2,500 beds that are discretionary beds right now. They are full, but 

they are not filled with mandatory cases. So the special interest 

cases, criminals, once we get to the criminal area, anybody that has 

ties to terrorists will come into detention and will remain in detention until, like these two that really had no interest there, they will 

request a bond determination. They will go in front of the IJ. They 

will present their case. The immigration judge in a lot of cases will 

either release on OR or grant small bonds. 

Chairman KYL. Now, what is your experience when they are released on OR? How many folks show up? 

Mr. LEE. It is not a good story. About 30 percent that are released actually show up for a hearing, and about 85 percent of 

those that show up for hearing actually show up if they are ordered 

removed. 

Chairman KYL. Wait a minute. Say that again. I am sorry. 

Mr. LEE. About 30 percent show up for a hearing. Of those 30 

percent that show up for a hearing, about 85 percent of those don’t 

show up, they become absconders if they are ordered removed. 

Chairman KYL. So there are two different steps along the way. 

In the first instance, about 70 percent don’t show up, and then for 

those who have been ordered removed, again, a percentage of them 

17 

don’t show up for removal. And these are people from countries of 

interest? 

Mr. LEE. These are just anybody that is released. 

Chairman KYL. All right. I was referring to these people from 

countries of special interest, but you are giving me the total figures 

from people who have been in detention. Okay. 

And my last question here, with regard to those—when there is 

no detention space available or you have to make room for a higher-priority case, can you give us some idea of the order of magnitude of the problem of lack of detention space and, therefore, the 

resources that might be necessary for us to ensure that there is 

adequate detention space? 

Mr. LEE. Well, currently, like I say, currently, we have about 

2,500 discretionary beds. So those beds are filled with OTM, noncriminal OTMs, really non-criminal cases. Most of those 2,500 beds 

are in support of the Border Patrol. There are a few of those beds 

that come from the airports through the inspection process and are 

non-criminals, but the majority of them right now support the Border Patrol. So if we get somebody who is a higher priority, a noncriminal OTM will go to the street. 

Chairman KYL. I am sorry? 

Mr. LEE. A non-criminal OTM will go to the street if they have 

somebody of a higher priority. 

Chairman KYL. Will go to the street, meaning— 

Mr. LEE. They will be released. 

Chairman KYL. —released on their own recognizance, and a high 

percentage of them don’t show up then again, is that correct? 

Mr. LEE. That is right. 

Chairman KYL. Okay. I have taken more time than appropriate. 

Go ahead, Senator Cornyn. 

Chairman CORNYN. We earlier averted to the testimony of Admiral Loy, Deputy Director of the Department of Homeland Security, 

about the potential for terrorists to use the same means to come 

into the country that are currently used by other human smugglers 

and people who patronize those human smugglers. 

I would like to ask, maybe starting with Chief Aguilar, assume 

that a person from Iraq or Afghanistan is able to leave that country, those countries and make their way, let us say, to Turkey, connect with a human smuggler of some kind, and then transit to, let 

us say, over to the Balkans Peninsula and then over, let us say, 

over to Italy, part of the European Union, and then obtain false 

identification indicating that they are a member of one of the countries—they are a citizen of one of the countries in the European 

Union, and they are then, by virtue of the human smuggler, they 

are then transited, let us say, to Mexico and then attempt to make 

their way into the United States. 

When you apprehend that person and they have, let us say, what 

appear to be on their face documents which designate them as, let 

us say, an Italian citizen or some other member state of the European Union, how would you identify them? Would they be, even 

though they come from Afghanistan or Iraq, would they be designated as a person who comes from a country of special interest 

or not? 

18 

Mr. AGUILAR. Yes, sir, and one of the reasons is for the following. 

You ask a very good question. We have a listing of the special interest countries where persons coming from those special interest 

countries, of course, are designated as such and automatically 

there is a higher level of scrutiny. But in addition to that, within 

DHS, we have a means by which to identify persons originating out 

of that special interest country even if they are not from or traveling through that kicks them into that higher level of scrutiny. So 

even if he was, for example, an Italian, but traveled through one 

of those, originated his last flight out of a special interest country, 

that would automatically kick him or her into that grouping where 

that scrutiny would be at a much higher level. 

So in addition to that, this hypothetical person that you just referred to with the counterfeit documents, fraudulent documents, 

things of that nature, in the case of the Border Patrol, if we encounter them, that means that probably they came between the 

ports of entry. So the investigative process, the interview process 

would probably give us that kind of information as to the true identity of this person. 

If we encountered them in the interior at a checkpoint or at one 

of our defense in depth postures, such as Sky Harbor Airport, Las 

Vegas Airport, or something of that nature, the training that our 

officers receive in counterfeit and fraudulent documents would also 

come into play. And, of course, if there is any question on the documentation, we have our brother and sister CBP officers who are experts in those areas that we could also utilize. We also utilize the 

National Targeting Center, CBP National Targeting Center, to run 

those documents and probably do a good job of identifying those 

counterfeit or fraudulent documents. 

Chairman CORNYN. Of course, that is if you are able to apprehend them. 

Mr. AGUILAR. Yes, sir. 

Chairman CORNYN. No matter whether they have valid or counterfeit documents, if you are unable to actually apprehend them as 

they are coming across due to lack of human resources or insufficient equipment, obviously, you are not able to run those kind of 

checks against those. 

Mr. AGUILAR. Right. 

Chairman CORNYN. Let me just make sure we all understand 

what we are talking about when you talk about running the names 

of these individuals against various databases. There isn’t a database that has everybody’s name in it, correct? 

Mr. AGUILAR. That is correct. 

Chairman CORNYN. It would just be if their name, assuming they 

give you a correct name, generates a negative hit on some database. Isn’t that what we are talking about, primarily? 

Mr. AGUILAR. By negative hit, I am assuming that you mean that 

information of interest is there? 

Chairman CORNYN. For example, if you ran John Cornyn’s name 

and your database did not have a record of a criminal conviction 

on it, then that wouldn’t generate a hit, would it, if— 

Mr. AGUILAR. That would not, yes, sir. That would not. 

19 

Chairman CORNYN. So it is only if you actually have a record of 

a negative information, either criminal record, they are on a watch 

list— 

Mr. AGUILAR. Yes, sir. 

Chairman CORNYN. —provided by the State Department, Department of Homeland Security, and the like. So if, let us say, this individual who comes across and you are checking their name and you 

have no record whatsoever of this individual, it would not generate 

a negative hit and you would not then treat them in this enhanced 

special status where you would have mandatory detention and the 

like, is that correct? 

Mr. AGUILAR. If they are coming from a special interest country, 

the level of scrutiny would be much higher, especially in the area 

of anti-terrorist training that all of our CBP officers have now 

taken. That would delineate a certain level of questioning, if you 

will, line of questioning, things of this nature, where the enforcement officers will take that posture to the degree possible, absent 

any findings on databases, to make sure that we are doing everything we can to identify any potential ties. But yes, sir, it would 

be dependent on the officer at that point. 

Chairman CORNYN. I appreciate that our officers, being professionals, are trained to try to root out individuals who they should 

be detaining, even though their name doesn’t appear on the list, 

the watch list or the criminal convictions list, but I want to make 

sure we understand that absent an officer being able to identify 

that person, that identity would not necessarily be generated by 

one of the various databases that that name is run against. 

Of course, there is—do you ever run into the problem where 

somebody gives you a false name? 

Mr. AGUILAR. Yes, sir, all the time. Absolutely. 

Chairman CORNYN. And if somebody gave you a false name, obviously, that would be less likely to generate a hit on the database 

check. In other words, it wouldn’t reveal that that person’s false 

name had been convicted of a crime or had made multiple attempts 

to enter the country illegally, or perhaps was even from a country 

of special interest. If someone gave you a false name, how would 

you be able to determine whether they fell into any of those categories that would likely guarantee higher scrutiny? 

Mr. AGUILAR. Well, let me take that a piece at a time, sir. With 

any kind of prior criminal conviction, the biometric information 

that we would capture by way of the ten-print check would, in fact, 

overcome the false name, identity, if you will. 

Chairman CORNYN. Even if there was no record in the database 

of who that person actually was? 

Mr. AGUILAR. That is assuming a criminal background. 

Chairman CORNYN. Okay, assuming the criminal background. 

Mr. AGUILAR. Yes, sir. In the case of an individual of interest, for 

example, one of the cases that I can refer to as an example is a 

case in point where a person out of El Salvador involved in a homicide crossed the border into the United States. Because of the interest of that country, we were able to bring biometrics into our 

systems to where once we had that individual in custody, we ran 

the ten prints, even absent a criminal background, if you will. He 

20 

popped up because we were able to input that data on there. But 

again, we are dependent on the databases. 

Other things that are taken into consideration, of course, is the 

fact that a lot of our operations are intel-driven, intel-driven in the 

sense that we conduct operations based on intelligence on people 

who originate in certain countries, means of travel, routes of travel, 

organizations utilized, risk factors associated with the person, such 

as age, things of this nature, associations and smuggling routes. 

Anything of that nature would come into play there. 

Chairman CORNYN. Let me just, since my time on this first 

round is limited, ask Mr. Verdery. Mr. Verdery, you talked about 

how your opinion had changed somewhat based upon your experience at the Department of Homeland Security in terms of the practical ability of this country to adopt a temporary worker program 

along the lines of the principles that the President has articulated. 

I gather from what you said that you came to doubt whether an 

enforcement-only approach could be successful in addressing the 

massive illegal immigration and the lack of control we have of our 

borders, is that correct? 

Mr. VERDERY. I think that is a fair way of putting it. The basic 

dilemma you have, hearing some of the numbers that were mentioned earlier, is you have got a massive tide of individuals, each 

one of which has to be evaluated on their own merits, and use 

whatever information you have, whether it is their country, their 

biographic information, their biometric information. But your odds 

of finding the literal needle in the haystack is a lot better if the 

haystack is a lot smaller. So, yes, that is why I think we need to 

do so much more on the physical enforcement at the border, but it 

is going to be difficult ever to reach that kind of goal that you 

want, to find those needles, with the current kind of numbers we 

are talking about. 

And one thing, if I might just add, on the line of questioning you 

had for Chief Aguilar is it demonstrates the importance of information sharing and especially biometric information sharing with our 

foreign government partners. If we don’t have negative information 

about somebody, we don’t have negative information about them. 

And so if you pick them up, you are not going to know anything. 

You are probably not going to know to detain them or to do something with them. So having robust fingerprint information sharing 

with the E.U., with the U.K., with other partners, is absolutely essential to try to build out that universe of the people we would 

want to worry about when we pick them up. 

Chairman CORNYN. So if I can summarize in conclusion, you are 

saying that if we weren’t concerned with literally hundreds of thousands or maybe millions of people coming across our border, that 

is from a law enforcement perspective, but rather tens of thousands, that our law enforcement resources and intelligence resources could be focused with greater precision on that threat if 

there was a mechanism for people to come into the country, at least 

on a temporary basis, to be checked and to be able to work in a 

temporary time frame within some sort of legal framework. 

Mr. VERDERY. You said it very well. 

Chairman CORNYN. Thank you. 

Chairman KYL. Senator Sessions? 

21 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. I thank both of you Chairmen for your leadership on this issue and I value both of your judgment as we work 

through these issues. 

I have believed we have been in a state of denial about how 

things have been operating on the border. It is worse than most 

people realize. Here is an article I would like for you to comment 

on. It is the Copley News Service, June 4, by Jerry Camer, dateline, McAllen, Texas. 

‘‘In the silvery blue light of dusk, 20 Brazilians glided across the 

Rio Grande in rubber rafts propelled by Mexican smugglers who 

leaned forward and breaststroked through the gentle current. Once 

on the U.S. side, the Brazilians scrambled ashore and started looking for the Border Patrol—started looking for them. Their quick 

and well-rehearsed surrender was part of a growing trend that is 

demoralizing the Border Patrol and beckoning a rising number of 

illegal immigrants from countries beyond Mexico.’’ 

‘‘ ‘We used to chase them. Now, they are chasing us,’ said Border 

Patrol agent Gus Balderas as he frisked the Brazilians and collected their passports last month. What happened next explains 

this odd reversal. The group was detained overnight,’’ I guess in 

McAllen, ‘‘given a court summons that allowed them to stay in the 

United States pending an immigration hearing. Then a Border Patrol agent drove them to the McAllen bus station, where they continued their journey into America. The formal term for the court 

summons is a ‘Notice to Appear.’ Border Patrol agents have another name for it. They call it a ‘Notice to Disappear.’ ’’ 

‘‘Of the 8,908 Notices to Appear at the immigration court in nearby Harlingen issued last year to non-Mexicans, 8,676 failed to show 

up for their hearings, according to statistics compiled by the Justice Department’s Executive Office for Immigration Review. That is 

a no-show rate of 98 percent,’’ close quote. 

Tell me, I guess, Mr. Aguilar. Your people are out there at some 

personal risk, working nights and long hours to try to enforce the 

law. How do they feel when they follow the rules and 98 percent 

of all they are doing is helping thousands of people further into the 

United States from which they disappear? Tell me how this can 

continue, or how it has occurred. 

Mr. AGUILAR. One of the things that I think is important to point 

out, Senator, is the fact that, yes, agents are frustrated out there. 

One of the things that—and I just now have gleaned through this. 

I had not seen this article. I had heard about it. But I can tell you 

that the reason that this is happening again is because of the lack 

of detention space. So it is not a policy. It is not something that 

we prefer to do. But the reason that these individuals are NTA-ed 

and released on their own recognizance is because we have no 

place to put them. 

Senator SESSIONS. All right. Now, let me follow that. Has anybody, to your knowledge, from the Border Patrol written and made 

a budgetary request for sufficient detention space to handle these 

individuals, and has anyone done an account for how much money 

it would cost to be able to detain them? 

22 

Mr. AGUILAR. Senator, the Border Patrol interdicts. We make the 

arrest, we process, and then we hand off to Detention and Removal. 

Senator SESSIONS. Mr. Lee’s job, I guess. 

Mr. AGUILAR. Yes, sir. Now, I would like to give you some statistics that I think are very telling which go right in line with what 

you are describing there. 

As an example, in McAllen, the highest number of apprehensions 

that occurs in the McAllen sector, which, by the way, is our highest-producing sector for OTMs in the nation, McAllen sector has 

apprehended, for example, through the end of May, 47,000 OTMs. 

Of those— 

Senator SESSIONS. And OTMs is— 

Mr. AGUILAR. Other than Mexicans. 

Senator SESSIONS. And— 

Mr. AGUILAR. Which includes that grouping of Brazilians. I don’t 

have the exact number— 

Senator SESSIONS. And the problem is, just for those who might 

be listening, is you can easily transport those who come from Mexico back into Mexico, but Mexico won’t take somebody from 

Brazil— 

Mr. AGUILAR. That is correct. 

Senator SESSIONS.—so you have to get them all the way to 

Brazil. 

Mr. AGUILAR. Yes, sir. That is correct. Now, you just touched on 

another challenge that we have. One of the problems that we have 

with Brazilians—now, this is specific to Brazilians—is that Mexico 

does not require a visa for Brazilians coming into Mexico, which, 

of course, now they use as a means to jump off into the United 

States illegally, and because of the challenges that we have with 

our lack of detention space, we have the situation that we are faced 

with. 

Right now in McAllen, the rate of release on own recognizance 

is at about 90 percent of the people that we apprehend, other than 

Mexicans. 

Senator SESSIONS. And 98 percent of those are not showing up 

as required, according to this article, at least. 

Mr. AGUILAR. According to the article. That would have to be— 

Senator SESSIONS. Mr. Lee, it seems to me in all of these matters, from my experience in prosecuting, it is just something I have 

come to believe and intuitively understand from nearly 20 years of 

prosecuting is that there is a tipping point where if the word is out 

that people know nobody is going to do anything to you if you sell 

drugs, they will sell drugs. Once it becomes a reality that something serious is going to occur to you if you sell drugs, drug selling 

will go down. It really will. 

Tell me what we can do, and what it would cost, to create housing for some 8,000 people or so to give integrity to this process so 

that they are able to be deported to their home countries and detained long enough for that. What is the problem here? What do 

we need? 

Mr. LEE. Well, detention, I think, is probably one of our most valuable tools, but there is more than detention. I mean, you can deVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
23 

tain somebody. If you don’t have a removal order, you can’t remove 

them. You can just put them in a bed. 

Senator SESSIONS. What does it take—I mean, these cases—I 

know something about how cases move. It is just a question of getting them before a judge, is it not, an administrative hearing 

judge? 

Mr. LEE. That is why I think expedited removal is so important, 

because getting them in front of the judge, as the statement I 

read— 

Senator SESSIONS. Yes, I am— 

Mr. LEE. —it takes about 89 days to put them in front of a judge 

versus about 26 days putting them in ER. So you can turn over 

more with less beds. 

Senator SESSIONS. Well, is somebody working on this? That is all 

I am asking. I mean, is somebody in charge here? 

Mr. LEE. Yes, we are— 

Senator SESSIONS. Is somebody saying, we need to get the hearings done quickly? I don’t see why they can’t be done in a matter 

of days, literally. There is no reason these hearings can’t be done 

within days. And then you have got to develop a system by which 

you can transport them back to their home country, which is expensive and burdensome, but that could be done, also. Where are 

we on this spectrum? Do you have a vision that would indicate that 

this utter failure would end and we will have a system that has 

integrity? 

Mr. LEE. There is a vision and it has already started. Expedited 

removal is already in Laredo and Tucson sectors. It has been going 

on now since October—September. 

Senator SESSIONS. Expedited—it works for Mexicans? 

Mr. LEE. No, these are for OTMs. 

Senator SESSIONS. OTMs? 

Mr. LEE. Yes, other than Mexicans. In both of those sectors, all 

cases that—all OTMs that were placed in the ER, we have either 

removed them or they are still in detention. So expedited removal 

is working and we do have a plan to expand expedited removal. 

Senator SESSIONS. Do you have an opinion about how many are 

detained pending expedited removal and how many are released on 

recognizance? 

Mr. AGUILAR. Senator, if you don’t mind, I will take part of that 

question. Since September, in those sectors where we have implemented expedited removal, we have placed over 20,000—20,000 

people into expedited removal. Since we began this program, expedited removal is also mandatory detention when we place them 

into ER. Those have been detained and have either been removed 

or are in the process of being removed. 

Senator SESSIONS. So if you are in the expedited removal program, you are detained until removed. 

Mr. AGUILAR. Yes, sir. Right now, we are working very— 

Senator SESSIONS. Is the problem that everybody is not in it bed 

space, hearing time? Where would resources need to be applied— 

Mr. AGUILAR. And that is one of the things that we are working 

with very closely right now, with Detention and Removal Office, 

the CIS, Citizenship and Immigration Services because of their 

part within the credible enforcing of this, to ensure that the proVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
24 

gram is carried out systematically and that we carry it out in such 

a way that once these people are placed into ER, they are 

mandatorily detained and removed, thereby reducing the amount of 

time that they need to spend in detention, therefore reducing the 

cost. Now, we are looking on that expansion of that program as we 

speak right now. 

Senator SESSIONS. But you can’t order hearing judges around, 

can you, Mr. Aguilar? They don’t work for you, or do they? Are they 

a part of— 

Mr. AGUILAR. No— 

Senator SESSIONS. So somebody up high, up here, has got to tell 

everybody this system has got to get in sync and be more effective, 

don’t they? 

Mr. LEE. That is why we are using expedited removal. They don’t 

have to go in front of a judge with expedited removal. 

Senator SESSIONS. Oh. 

Mr. LEE. An agent on the ground can order somebody removed, 

the Border Patrol agent. 

Senator SESSIONS. Without a judge. 

Mr. LEE. That is right. 

Mr. AGUILAR. Yes, sir. Under ER, sir, basically, the agent on the 

ground will make that determination as to whether that person has 

any claim to be in the United States or right to be in the United 

States. Once that claim is in the negative, adjudicated in the negative, then they are formally removed after supervisory oversight 

and certain assurances in place to ensure that these people, if, in 

fact, they have a credible fear, claim for fear of persecution or 

things of this nature, it is built into this program. But once a determination is made, these people are rapidly removed out of the 

country without an immigration judge coming into play. 

Senator SESSIONS. Do you know how long those are taking, from 

the time they are apprehended to the time they are removed? 

Mr. LEE. Right now, the average is about 26 days. 

Senator SESSIONS. Would it be possible to get that substantially 

less? 

Mr. LEE. We are working on that. The issue— 

Senator SESSIONS. Do you need money to make it less? 

Mr. LEE. No. Actually, we need the foreign countries to issue 

travel documents faster, and we are always going to have the 

amount of time it takes to do country notification. You can’t just 

put somebody on a plane and send them back without notifying 

them. So we have the country notification process and we schedule—the scheduling for removal. But we are trying to increase the 

rate of travel documents. 

We are using VTEL now. We have made requests for the foreign 

governments—Honduras is on board. We are placing VTEL in their 

consulate offices and in our offices so they can interview without 

having to come out and do personal interviews. We made the request in numerous other countries and they haven’t committed yet, 

but they are talking as if they are going to. So that will reduce the 

rate and actually have us turn over faster. 

Senator SESSIONS. My time is expired. Give me a quick answer. 

What percentage of people are being handled under expedited removal and what percentage is handled in the traditional way? 

25 

Mr. AGUILAR. Let me answer that question in the following manner, sir. In Tucson and Laredo, OTMs that are eligible for expedited removal, about 95 to 98 percent of those are being placed in 

expedited removal within those two sectors. OTMs, in general, 

within the population of illegal aliens that we apprehend across our 

nation’s borders, is 12 percent, through the end of May, 98,000. We 

have placed 20,700-and-some in expedited removal. 

Now, I would like to say that ER and detention are key to creating deterrence. That is absolutely key to our successes. 

Senator SESSIONS. I couldn’t agree more. 

Mr. AGUILAR. Yes, sir. 

Chairman KYL. And if I could just follow directly up on that, 

there are two needs, at least. First, we need to extend the expedited removal process to all of the sectors instead of just two. And 

secondly, we need to make sure that there is detention space available. So as to the first point, what will it take to extend the expedited removal process to all 20-some sectors? 

Mr. AGUILAR. We are actually going through that process right 

now, Senator. We are working, as I said, very closely with DRO, 

with CIS, to ensure that as we roll out, as we evolve this program, 

the integrity of the program is there. 

Chairman KYL. What does it take? Does it take training of people? Does it take money? What does it take? 

Mr. AGUILAR. Yes, sir. That takes training. We are, in fact, right 

now currently going through training of the remaining sectors 

along our nation’s Southwest border to ensure that when this program is kicked off along, or evolved along our Southwest border, 

everybody is trained up and the integrity of the program is maintained. 

Chairman KYL. Is the process to do it every two or three sectors, 

or to do them all at once, or what is the process and how long do 

you expect it to take to be completed? 

Mr. AGUILAR. The end game we are looking for is across all of 

our sectors. We are going to take a look initially at all of our Southwest border sectors, the nine Southwest border sectors, Northern, 

and then coastal and waterway. 

Chairman KYL. So we will have to deal with the others, as well. 

But just with respect to the Mexican border, how long do you think 

it will take before it is extended to all—to the entire—all of the sectors on the Mexican border? 

Mr. AGUILAR. It is coming soon. It is coming soon, Senator. 

Chairman KYL. Well, are we talking about a matter of months? 

Mr. AGUILAR. I would feel comfortable with that. If DHS approves it and everything else, yes, sir. 

Chairman KYL. So within a matter of months, then, all of the 

sectors will have the same kind of expedited removal that Tucson 

and Laredo have today? 

Mr. AGUILAR. That is what we are working towards, yes, sir. 

Chairman KYL. Do you need any other resources to make that 

happen? 

Mr. AGUILAR. To make ER happen within the Border Patrol, I 

think we have the resources necessary. The resources that are 

going to have to be concurrent with that is the ability to detain— 

Chairman KYL. Right. 

26 

Mr. AGUILAR. —those people that we place in ER. 

Chairman KYL. Okay. And getting to the detention and anything 

else that DHS, beyond just the Border Patrol, would need, Mr. Lee, 

what do you think it needs, how long will it take, and then on a 

separate matter, how much more detention space is necessary? 

Mr. LEE. I think the ER plan, like Mr. Aguilar said, is we are 

real close on the plan. I don’t think that that is going to be an issue 

and we will get back to you on when that is going to be. 

But the detention space, it is hard—like I say, it is hard to say 

how much detention space you need, because with ER, we can remove these people a lot faster. We are working on the travel document issue. We think we are going to be able to enhance that number. 

So to put a bed number on it, we actually just opened—we 

haven’t opened it yet. We have a facility out in Pearsall. It is in 

your neck of the woods down there. It is a little bit West of San 

Antonio, probably Southwest of San Antonio. It is 1,000 beds that 

we are going to dedicate specifically for these ER cases. 

That may do it. It just depends on how many—the deterrent effect for expedited removal may be huge. The amount of— 

Chairman KYL. But even if you had space temporarily to take 

care of the full need, you could cut back on that once the deterrent 

worked. How many OTMs do you release into the United States 

each year, or are released if you are not releasing? 

Mr. AGUILAR. Currently, Senator, the Border Patrol nationwide 

is OR-ing approximately 70 percent of those OTMs that we apprehend. 

Chairman KYL. And the number apprehended last year of OTMs 

was about, oh, just under 100,000? 

Mr. AGUILAR. Last year, I believe, was 87, and I will get to you 

the exact number on that. But year-to-date, it is 94,684. 

Chairman KYL. And what percent of those are released on their 

own recognizance? 

Mr. AGUILAR. Nationwide, about 70 percent. 

Chairman KYL. Seventy percent. So you are talking about somewhere in the neighborhood of 60,000-plus people that are released 

on their own recognizance and very few of those ever show up, is 

that correct? 

Mr. AGUILAR. That is correct. 

Chairman KYL. And you hope that you have captured the criminals in that group, captured the criminals so that they are not part 

of that group. 

Mr. AGUILAR. Yes, sir. 

Chairman KYL. How many criminals again? I have the number 

here of 94,700 criminals were apprehended in the last—or since 

September 1 in this fiscal year. Now, those are people that have 

criminal records and, therefore, regardless of what country they are 

from, they are also subject to this same removal process. In other 

words, Mexicans with a criminal record would be subject to the 

same removal process as an OTM, is that correct? 

Mr. AGUILAR. That is correct, especially if they are criminals. 

Chairman KYL. So you can have criminals released, then, on 

their own recognizance, not showing up, as well, is that correct? 

27 

Mr. AGUILAR. In the area of criminals, they are one of the priority detention cases. Now, not all of them are detained, but it depends on what level of criminal activity they were involved in. For 

example, an aggravated felon is, in fact, a mandatory detention. 

Chairman KYL. And obviously anybody that is currently wanted 

is going to have a priority, as well, is that correct? 

Mr. AGUILAR. That is correct. 

Chairman KYL. Okay. So you don’t know exactly how many 

criminals are released on their own recognizance, but some number 

are. I guess we can say in the thousands, would that be fair to say? 

Mr. LEE. I think your criminal aliens are—like I say, we have 

about 2,500 discretionary beds right now, so your criminal aliens 

are going to be held in detention unless they get in front of the immigration judge and, based on due process and their ties, they may 

be low-bonded out by the immigration judge. 

Chairman KYL. But if there are 94,700 criminals and you have 

got 2,000-plus beds and you are detaining a lot of other folks, as 

well, including OTMs, pretty clearly, you don’t have enough bed 

space for everybody. 

Mr. LEE. Most of those criminals are going to be Mexican criminals and not OTMs. I mean, the OTM number is going to be small. 

Chairman KYL. Okay, but the Mexican criminals are dealt with 

in what way? In the Tucson sector, how are they dealt with? Aren’t 

they dealt with in an expedited removal manner? 

Mr. AGUILAR. I am sorry, Senator— 

Chairman KYL. Let us say that you have a Mexican criminal. 

How is that individual dealt with in terms of detention and release? Are they expedited removal candidates? 

Mr. AGUILAR. Yes, sir, they can be, but preferably, the removal 

is going to be a formal removal. In either case, either by ER or by 

formal removal in front of an immigration judge, when and if they 

come back again, they are now eligible for prosecution. 

Chairman KYL. Right. But I guess my point is, if you have got 

94,700—and the year isn’t even up yet, so— 

Mr. AGUILAR. That is correct. 

Chairman KYL. —you are going to be looking at least 100,000 

criminals, criminal aliens, and many of those are going to be Mexicans, some are not. 

Mr. AGUILAR. Yes, sir. 

Chairman KYL. But the bottom line is that when you count all 

of the OTMs, and part of that is subsumed in this number, but in 

this number of 100,000 criminals, you can’t possibly have enough 

detention space. We are trying to get a handle on how much is necessary. I will say that under the bill that Senator Cornyn and I 

have, we not only add money as needed for more detention space, 

but we also, recognizing that we are only talking about the informal process here, and Mr. Lee, you alluded to the formal removal 

process requiring the administrative judge, as Senator Sessions 

talked about, that we also have money in here for the judges and 

for the rest of the criminal justice system that is required to deal 

with all of these cases, since we recognize that court space, judges, 

clerks, lawyers, all of that is going to be necessary for these number of cases. 

28 

But it would be helpful to us if we could get a little bit better 

handle on what the cost of this is going to be, what the size of the 

problem is so that we can fold that into our appropriation requests. 

Mr. VERDERY. Could I just jump in on that? 

Chairman KYL. Sure, you bet. 

Mr. VERDERY. One of the things that I enjoyed about your draft 

legislation was it recognizes that this—if you think of this as almost a business process, you unfortunately have a lot of customers 

that are being picked up and have to be processed in some way, 

and it is a very convoluted process involving different agencies, 

asylum claims, especially for individuals who go through a formal 

proceeding. I saw a chart when I was at DHS with the various options of how the legal process can work and it made the famous 

Clinton health care chart look simple. It is an unbelievably elaborate process and it has to be streamlined as part of this review, 

things like bond, things like ER, and the like. 

The other thing, I will say what these gentlemen are not allowed 

to say, I think. This is not going to take some kind of plus-up or 

shuffling money around. If you want to build out an expansive system that can handle the influx, it is going to take a massive new 

amount of money. Now, hopefully, reducing the caseload will solve 

part of that by giving people a chance who want to come in to work 

an organized place to do that, an organized way to do that. But this 

is going to take a good bit of money, whether it is coming from fees 

or fines or the general revenue fund. It is not simply a plus-up. 

Chairman KYL. And let me just say that we recognize that this 

is probably a proposition where, temporarily, we are going to have 

to increase assets significantly, but because of all the things that 

we are working on, hopefully, that peak will be reached relatively 

soon and the number of cases will fall off and the detention space, 

for example, can go back to other uses. The judges that we have 

had to bring on for this purpose can go on to doing other things 

and so forth. 

But I will say that Senator Gregg, the Chairman of the Budget 

Committee and Appropriations Committee, has indicated a willingness to put sums of money in to authorize, for example, for detention space. 

Let me just ask both Mr. Lee and Chief Aguilar, please get something to us on the record that would enable us to be able to make 

the case to Senator Gregg and others to be a little bit more precise 

about what these requirements are so they can plug that into their 

calculations in determining exactly what to authorize and eventually what to appropriate here. It will make our job a lot easier. 

I guess the summary here is that we are going to need more of 

all of these things. It could be substantial in the short run. But in 

the long run, we all hope that by going this route, we can bring 

the long-term costs down dramatically. Would that be a fair summary? 

Mr. AGUILAR. Yes, sir. 

Chairman KYL. Go ahead, Senator. 

Chairman CORNYN. Mr. Lee, we have been asking questions 

about people who are coming across the border and who are being 

detained and the priorities that the Department of Homeland Security has for who is detained and who is released on their own reVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
29 

cognizance and the like. But it is correct, is it not, sir, to say that 

there are many, many more individuals who are illegally in the 

United States and who are currently resident in State and county 

jails or prisons, isn’t that right? 

Mr. LEE. Yes, sir. 

Chairman CORNYN. So if you look at the Federal Government’s 

responsibilities as opposed to the State and local governments’ responsibilities in terms of people who commit Federal crimes, albeit 

those by which they illegally enter the country having a criminal 

record or committing other crimes. The numbers we have been 

talking about in terms of detention space to deal with the border 

intrusion issue is really pretty small, isn’t that right? 

Mr. LEE. Correct. 

Chairman CORNYN. For example, I have been advised that in Los 

Angeles County Jail, where there are approximately 25,000 inmates, that one estimate is between 30 and 40 percent of those inmates are in the United States illegally, but nevertheless have 

been accused of committing crimes and thus are incarcerated within a county facility. Those numbers wouldn’t surprise you, would 

they? 

Mr. LEE. No. 

Chairman CORNYN. And that, of course, would likely be repeated, 

those numbers higher or lower depending on whether you are in a 

metropolitan area close to the border in Texas, Arizona, and other 

parts of the country. The truth is, while we are talking about 

20,000 detention beds that the Department of Homeland Security 

for people who come across the border illegally and need to be detained, that that just represents a fraction of the bed space that is 

being occupied by people who have not only come into the country 

illegally, but have committed crimes while they are here. Would 

you agree with that? Or at least alleged to have committed crimes. 

I guess we ought to give them the presumption of innocence. 

Mr. LEE. Most of our bed space right now is filled with individuals that came out of county jails, Federal prisons, State prisons. 

That is most of our population. The discretionary beds that we 

have now are the ones that we are using to support Border Patrol. 

So, yes, most of our beds are full of criminals. 

Chairman CORNYN. Well, what resources would you need to take 

into custody, pending their removal, all criminal aliens in the 

United States, including identifying and removing those who are 

currently incarcerated in State and county jails? 

Mr. LEE. I couldn’t begin to tell you. Actually, we got some—in 

2005, we got some enhancements for institutional removal program 

and we are actually just now hiring those up and we are going to 

concentrate in New York and California. But traditionally, the program is with the Office of Investigations and I would really hate 

to speak to the numbers and what they are. 

Chairman CORNYN. Let me quick to say I feel a little bit bad for 

some of the witnesses and the people particularly like those of you 

who are serving our nation in this very difficult position, because 

we are not being critical of you but we are using this opportunity 

to help educate not only members of these Committees, but the 

Congress and the American people about this long-ignored problem 

30 

that, fortunately, our government post-9/11 is finally starting to 

come to grips with. 

But the reason why we are trying to pin you down on some of 

these numbers is because my own impression is, as I think Senator 

Sessions has said, this nation is in denial about the size of the 

problem and about how much it will take in the way of Federal resources to deal with it. Right now, a lot of these are dealt with on 

the local level in border States particularly, where, for example, 

health care services are provided free of charge to people who have 

come into the country illegally and it is paid for by local taxpayers, 

not the Federal Government. When it comes to law enforcement, 

detention facilities, jails and prisons, those are paid for by State 

and local taxpayers, not by the Federal Government, when, in fact, 

the Federal border, the international border is a Federal responsibility that the Federal Government has simply not lived up to its 

responsibilities to deal with. 

So I just want to make sure it is clear that we are not picking 

on you or any of the witnesses here. We— 

Mr. LEE. And it is not an area that we are ignoring. Obviously, 

it is cherry picking. They are already in custody and we are in the 

process now of putting officers in those jails. Like I say, we did get 

positions in 2005. We are just now getting them to the academy 

and trained. But if you can identify a criminal, and in most cases, 

a lot of cases, you can do an administrative removal. They don’t 

have to see a judge. It is basically the same process as expedited 

removal. We can get a quick order. We can get it while they still 

are serving their time and we can get them removed without putting them in that bed and then starting the whole process. 

So it is an area that we are targeting. Like I say, our program 

did get money in 2005 for it. We just haven’t been able to get them 

hired up and on, so— 

Chairman CORNYN. I appreciate you working on it, but the point 

I am trying to make, and this is the only point I am trying to 

make, is that if Los Angeles County Jail has 30 to 40 percent of 

their population of 25,000 inmates are here illegally in the country, 

if you multiply that by the county jails and State prisons that have 

undocumented or illegal immigrants in the country who have committed or are at least charged with committing crimes, that those— 

that is going to take a substantial additional investment by the 

Federal Government to deal with that problem. Would you agree 

with that, Mr. Lee? 

Mr. LEE. Yes, but I wouldn’t agree that they are all here illegally 

in the country. The stats that I have seen, they identify them as 

foreign-born, and you can be foreign-born and still not be here illegally in the country. So, like I say, I just don’t know if the stats 

are right. I hate to speak to the Office of Investigations programs. 

Chairman CORNYN. No, I understand. I thought you agreed with 

me, though, that between 30 and 40 percent of the inmates at Los 

Angeles County Jail, it wouldn’t surprise you if 30 to 40 percent 

of those at the Los Angeles County Jail were illegally in the United 

States. 

Mr. LEE. Or foreign born. 

Chairman CORNYN. Do you want to qualify that now? 

31 

Mr. LEE. Yes. You can be a lawful permanent resident and commit a misdemeanor and be in the L.A. County Jail, but you are not 

removable. Once you have served your time, you will be released 

just like the United States citizen will. 

Chairman CORNYN. Okay. I don’t want to quibble with you over 

it. So you want to qualify your answer now that you would not 

agree that—it would surprise you if 30 to 40 percent of the inmates 

at the Los Angeles County Jail were here illegally? 

Mr. LEE. Yes. 

Chairman CORNYN. Okay. Mr. Verdery, let me ask you about 

what it is that the United States Government ought to be able to 

expect from our neighbors like Mexico and those countries that 

would perhaps benefit from a temporary worker program. I believe 

you indicated that we should seek to obtain commitments from the 

Mexican government to redouble efforts to secure their Southern 

border, and we have heard some of the problems about a porous 

Southern Mexican border which makes that available to people 

from Central America and South America, assisting with antismuggling and document fraud investigations and operations. 

What kind of obligations do you think we should ask for a country that will benefit from a temporary worker program allowing 

their citizens to work for a time in the United States, what kind 

of obligations should we expect them to accept in terms of working 

with us on these sorts of matters? 

Mr. VERDERY. I think the key word is, I think was in my testimony, is redouble. I wouldn’t want to leave the impression that 

this is some kind of relationship that is just on the front end. There 

is so much good work being done between the U.S. and Mexico, especially with ICE attaches overseas in Mexico City and the likewise. So it is a question of kind of expanding those efforts. 

You can think of it in a couple different camps. One, as you mentioned, is trying to secure the exterior Mexican border against 

OTMs or others coming to Mexico and using that as a pipeline to 

the U.S. So that is people literally coming across a land border, 

their Southern border, or people coming in via air or sea, and that 

is hwy the robust information sharing agreements that were talked 

about in the, I forget what it stands for, but the SPP that the 

President and President Fox announced a couple months ago on information sharing is so critical. 

On the kind of the border itself, we need just to heighten and expand and more regularize the intel flow to break up the smuggling 

rings, and I think the ICE investigation folks would say that the 

cooperation is getting better. It needs to improve even more. 

The third thing I would mention is just a deterrence by the Mexican government at their own border of their people crossing illegally. We saw an impressive show of force by the Mexican government during the recent months during the Minuteman project era, 

if you want to call it that, which I think led to a massive drop in 

crossings during that period. Having a similar commitment all the 

time, trying to police their border, would be very helpful. 

And that is just a few things, and my testimony goes into a number of others. 

Chairman CORNYN. Let me ask—I want to ask you about US– 

VISIT. Would you give us your opinion on how do you think the 

32 

US–VISIT program has functioned so far and what time period do 

you see as a realistic expectation that US–VISIT will be—before it 

will be a fully functioning system where it will be the centerpiece 

for tracking visitors who enter the United States? 

Mr. VERDERY. I think it is functioning extremely well. If you had 

told me where we have gotten to by this point when I walked into 

DHS two years ago, it would have seemed impossible to actually 

deploy a working system at our airports and seaports that functions without interfering with traffic and has found, I think it is 

up to 600 bad folks, people with good forged documents and the 

like. It is working extremely well in that environment. 

The land border situation is about the toughest task I have ever 

seen the government take on, to try to vet literally millions of people coming through without backing up lines, as you know so well, 

both of you, at your ports of entry. It is going to require a lot of 

private sector expertise, and especially if we are going to make US– 

VISIT the backbone for the employment-based system that any 

type of temporary worker program would need to have to function. 

Essentially, as much as I support, and I do support the enhancements on the Border Patrol and number of agents—I think that 

has been great—at some point, it would almost be better to turn 

and find 500 smart guys to go design the IT systems and the like 

that will allow that insta-check for employment systems to work. 

If Visa or MasterCard can build up where you can swipe your card 

at millions of locations and it works in three seconds, we ought to 

be able to have a similar capability at our places of employment. 

So I think it is working well, but the deployment at the land borders is going to be very tough. We are going to need a lot of cooperation from the Mexican government especially to get people accustomed to coming through the ports of entry, to retrofit those 

travel documents to allow for the biometric capture via RFID and 

a lot of outreach to those communities. I would think that you all 

would be part of that. 

Chairman CORNYN. I have to say that, as you and I have discussed in your previous life at the Department of Homeland Security, I was very pleased, as were a number of our border communities in Texas, with the care and thoughtfulness with which the 

Department of Homeland Security implemented US–VISIT at the 

land-based points of entry. I know there was a lot of apprehension 

that it would back things up, but due to a lot of conversations, a 

lot of hard work by an awful lot of people and a lot of collaboration, 

that proved not to be the case. As you say, it has been successful 

in identifying bad people with good forged documents, as you say. 

Mr. VERDERY. It was always designed to be an incremental system and I would have to single out, since we are in Washington, 

that the Washington Post story that ran last week critical of US– 

VISIT, which I think completely missed the point of the program, 

did not understand it is being built in increments, and we obviously have the toughest one left to do, which is building out an 

entry and exit at the land border. But again, it is working great 

so far and we need that technological solution to be able to move 

people in and out and find the needles in the haystack moving forward. 

Chairman CORNYN. Thank you very much. 

33 

Chairman KYL. Let me see if I can make this the last round 

here. Real quickly, first of all, Chief Aguilar, can you inform us on 

the status of the memorandum of understanding that Border Patrol 

is attempting to arrange with the Tohono O’odom Nation in Arizona as part of the effort to gain access to interior lands? 

Mr. AGUILAR. The ongoing efforts of the Tohono O’odom Nation 

will include both a formal and informal understanding, if you will. 

At the current time, the Tohono O’odom Nation recognizes the importance of things such as drive-through barriers, now that they 

have seen the successes over in the Organ Pipe and those areas out 

there. So they have agreed to work with us in working towards the 

application of tactical infrastructure, the application of applying 

some of the rescue beacons, for example, remote video surveillance 

systems, and things of this nature. 

One of the main successes we have had with the Tohono O’odom 

Nation has been the multi-use facility that is now, in fact, in use. 

I was just there last week, working out tremendously. So we are 

moving towards those memorandums of understanding and the informal agreements that would allow us to place the infrastructure 

and technology that we feel is necessary to bring the level of control to the nation out there. 

Chairman KYL. Good. I would appreciate being kept up to date 

on that, and particularly as we get into the appropriation process. 

There have been some requests for funding. We want to make sure 

that everything is coordinated there. 

Mr. Lee, do you know how many nationalities are represented in 

the removals of the OTM program, approximately? 

Mr. LEE. A lot of nationalities. 

Chairman KYL. How many different countries or nationalities? 

Mr. LEE. There are over 100. 

Chairman KYL. Okay. Now, let me go back to the question that 

Senator Cornyn asked. Maybe this is another way to look at it. As 

you know, the SCAAP program, or State Criminal Alien Assistance 

Program, provides Federal funding to help to make up for the cost 

that the States incur in housing the illegal immigrants who are 

convicted of crimes in the States and imprisoned there, right? 

Mr. LEE. I am familiar with a little bit. It is not really under my 

program, but— 

Chairman KYL. Okay. Well, maybe then you are—that program, in very rough terms, would cost about $2 billion to compensate the 

States for their incarceration costs and that is for, as I understand 

it, for criminal aliens. In other words, these are not people who are 

lawful residents but foreign-born. You can’t comment on that, 

though, is that right? 

Mr. LEE. No, but I can sure pass it on to the right division. 

Chairman KYL. We can get the answer to that. The bottom line 

is that while there may be some foreign-born legal residents in the 

United States who are criminals and thus using some of these detention beds, a very high percentage are criminal aliens, is that not 

correct? 

Mr. LEE. I believe so. 

Chairman KYL. Okay. Mr. Verdery, my last couple of questions 

relate to some of the testimony that you presented having to do 

with integrating a new guest worker program with the other efforts 

34 

to control illegal immigration by controlling the border, by controlling the interior, and this element is by controlling or by enforcing 

the law at the workplace. Senator Cornyn and I have focused on 

all three in our legislation. We believe that there has to be a balance between controlling the border, controlling interior enforcement, and workplace enforcement, all three. 

With regard to the workplace enforcement, you identified at least 

one of the critical components, and that is a biometric identification 

system that can verify the appropriateness to issue some kind of 

legal document to someone who has been in the country illegally 

but who presumably poses no threat, is not a criminal, and who 

would, therefore, be eligible for a legal program, a document that 

would be required to be verified prior to employment, right? 

Mr. VERDERY. That is right. 

Chairman KYL. It would take something to have a system for 

issuing such documents, first of all, for verifying the data necessary 

to issue the document, for issuing the document, and then for having in place both the employer verification system and the enforcement mechanism. It would take something to have all of those 

things in place were we to be able to get past a temporary worker 

program along the lines that you have heard described in different 

pieces of legislation, right? 

Mr. VERDERY. That is right. You need to build out this capability 

which exists only on biographic information on a voluntary basis 

now. 

Chairman KYL. Right. Can you talk a little bit to us about what 

some of the things are that you think would be necessary to put 

that in place, what you would have to have in place before you actually commenced the process, any estimates of cost? In other 

words, just to give folks some magnitude information about what 

we are talking about here in implementing an enforceable temporary worker program that would include people who have come 

here illegally. 

Mr. VERDERY. Well, in terms of tasks, there is the task list and 

how much it would cost, and that cost can fall partially on the employee, partially the employer, and partially probably on the government. 

I do believe the employer community is willing to pay if they can 

have a reliable source of labor, especially if it includes the labor 

that they have already hired and is already developing skills and 

community ties and the like. 

The cost of the biometric card itself is not astounding. We issue 

biometric issues and biometric border crossing cards all the time. 

So that is not the problem. The problem is, how do you get it in 

the hands of the person and feel comfortable that it is who they 

say they are? In kind of corresponding levels of security, you could 

essentially have the employer do it. They could send in applications 

and you send back the card. I think that is probably the weakest. 

You could have them go to a government facility, an ICE or CIS 

office, and be fingerprinted and have that background check. Or, as 

some have suggested, you could have them leave the country and 

essentially apply for a visa overseas. 

It strikes me that the middle ground is probably the place to go. 

You want to lock down that person’s biometrics. You want to make 

35 

sure that it is not a forgery. You want to have the faith of the government having taken those prints and then you can kind of build 

out the credibility on top of that. 

I wouldn’t want to venture a guess as to how much the instacheck system would cost to build out, you know, the phone lines 

and the IT information to link into Wal-Mart and 7–Eleven and 

every other employer around the country. I know it will be a good 

amount, but— 

Chairman KYL. Let me just interrupt on a couple of things there. 

Mr. VERDERY. Sure. 

Chairman KYL. First of all, there are two key pieces of information that you want in this card, are there not? First, the biometric 

data that tells you that the person standing in front of you is the 

person whose card you have. In other words, the person is who he 

or she claims to be. 

Mr. VERDERY. That is right. 

Chairman KYL. So you get the match on identity. And secondly, 

the basic data that you need to make the decision that you are 

making, in this case, an employment decision. You need to know 

that the person is not a criminal, is in the country legally one way 

or another, a citizen, a green card holder, a blue card holder, a student who is qualified to be employed, or whatever. That information is only as good as the inputted information, which means that 

you have to have either good breeder documents or a good system 

to check the information as it is presented, which kind of obviates 

the first type of verification system that you identified. It pretty 

much would require some kind of interview process with presentation of documents that can be checked, would it not? 

Mr. VERDERY. Presumably, the employer is going to have to demonstrate that they either have advertised the position and can’t 

find an American worker or have already filled the position where 

the job was unlikely to be filled with an American citizen, so— 

Chairman KYL. Excuse me— 

Mr. VERDERY. Sure. 

Chairman KYL. —but that is a different issue. What I am getting 

at is that the person who you are about to offer the employment 

to, whose card you are going to swipe through the machine, is, in 

fact, entitled to participate in this particular program, in this employment. 

Mr. VERDERY. That is right. I mean, the company will have to 

get a certification from whoever this is assigned to, the Labor Department, the Social Security Administration, DHS perhaps, that 

they are entitled to work or continue to work. 

Chairman KYL. So somehow or other, for them to do that certification, somebody is going to have to present some documents to 

them and those documents, to one degree or another, need to be 

verified. 

Mr. VERDERY. That is right, and that is the underlying rub, is 

how secure those documents are, with drivers’ licenses and the 

right. 

Chairman KYL. So the breeder documents and the verification 

process is probably the long pole in this tent. At least, that has 

been my view. 

36 

With regard to the machinery itself, on the laser visas, for example, from Mexico, the machines are relatively inexpensive, and that 

is with having produced only a few. We did an estimate. If you just 

take the $2,000 cost per machine and you put one in every post office in the country, it is only $64,000. I think that that part of the 

process could be relatively inexpensive, and as you point out, the 

technology is there. Do you have any disagreement with that? 

Mr. VERDERY. I don’t, and especially if, again, the theory is that 

many of these individuals are going to want to travel back and 

forth and, therefore, they are going to need some type of retrofitted 

document that can be read wirelessly. 

Chairman KYL. Right. 

Mr. VERDERY. So they are going to have to have a new document 

anyway to allow for that travel. 

Chairman KYL. Right. So I think that the key expense is going 

to be in this verification of status and making sure that the breeder 

documents and that initial determination are valid. But your view 

is that this process better be pretty well in place before we start 

it—well, I guess, instead of assuming the answer, let me ask it. 

Mr. VERDERY. I think— 

Chairman KYL. Go ahead. 

Mr. VERDERY. I think you could have essentially a bifurcated system that treats people who are already here somewhat differently 

for a time being as opposed to new people who want to come in, 

and eventually, you want a merged kind of system. But I can see 

a transition phase where folks who are here are treated somewhat 

differently for a period of time as opposed to people who are coming 

in from overseas. And again, the temporary worker program is not 

just aimed at Mexico. You could be coming in from anywhere under 

the theory the President has espoused and others. But you need 

that transition piece to make it work. 

Chairman KYL. And it has got to be ready to go before the system begins, that is to say, before the person can be legally employed, you are going to have to have the documents checked, 

issued, the machinery in place, employer verification process ready 

to go. 

Mr. VERDERY. I would suggest that for new entrants to the country, that definitely should be a prerequisite, that you have a check 

in place. For existing workers, I think that is going to take time 

to build out. So you could have a situation where employers wanting to bring in new labor are the first in line, and then people who 

are using existing labor come on afterwards, if you can’t build it 

all at once. 

Chairman KYL. With Senator Cornyn’s concurrence, let me ask 

one last question here. Are you not also going to have to have some 

identification for American citizens or green card holders or other 

lawful residents of the United States to avoid the problem of discrimination when an employer asks for the proper documentation 

from someone who informs that prospective employer that he 

doesn’t need proper documentation because while he may look like 

he is not American or have some kind of an accent, he is very much 

an American citizen or other lawful resident? So there is going to 

have to be some documentation there, too, isn’t there? 

37 

Mr. VERDERY. The Social Security Administration is going to 

have a tough job, yes. 

Chairman KYL. Okay. 

Mr. VERDERY. When you think of the number of workers that 

need to be vetted and the error rate that would be acceptable to 

our economy, it is a tough, tough business. And that is why I suggest again that you might not want to deploy it kind of all at once 

to every employer around the country at once. You may want to 

have a tiered or a phased system that catches new entrants first 

and then catches up with the existing ones. 

Chairman KYL. And the only comment I would have on that is 

that we are trying to do this in a very skeptical atmosphere, let us 

put it that way, where at least my constituents have said, we want 

to make sure you are going to enforce this new law before you pass 

it, because in the past, you haven’t and it has resulted in amnesty. 

Okay, that is fair. I think that puts a burden on us, however, to 

make sure that everything is in place for that enforcement, the resources, the commitment, and the ability to do so before we begin 

the process or there is going to be a high degree of skepticism. So 

this is part of what we are going to have to try to identify in terms 

of our needs and requirements before actually beginning to implement such a program. 

And while I don’t reject the idea of some kind of calibrated enforcement that may well be necessary, by the same token, folks are 

not going to want to have to rely upon a lot of good faith there because they have seen the government fail them in the past. 

Mr. VERDERY. A series of hard dates might be the kind of middle 

ground that might work. 

Chairman KYL. I appreciate your expertise on this and I will 

make that my last question and turn to Senator Cornyn. 

Chairman CORNYN. I just have a couple more questions. First of 

all, I am just curious, Chief, this dramatic increase in the number 

of OTMs being apprehended, and as you noted, a large percentage 

of those coming in through the McAllen sector in South Texas. 

What do you attribute the dramatic increase in the number of 

other than Mexican individuals who are being apprehended this 

year as opposed to previous years? 

Mr. AGUILAR. One of the obvious things, Senator, is the rate at 

which we are releasing on own recognizance. The other one, specifically to Brazilians, is the lack of requirement of a visa into Mexico 

that just facilitates that entry into the United States. Last year, for 

2004, the OTM release rate nationwide was about 47 percent. It is 

now up to 70. Last year in McAllen, it was about 61 percent. It is 

now at 91 percent. The bulk, majority of those, are Brazilians. So 

a combination of those things, but definitely detention would, in 

fact, equal deterrence, and that is one of the things that I think 

we are all in agreement in. 

Chairman CORNYN. Thank you very much. 

Mr. Verdery, let me ask you, just to follow up on the question 

Senator Kyl had, and he propounded to you a very practical concern that we have, that is namely identifying people who can legally work in the United States and providing a mechanism for a 

prospective employer to determine that relatively easily. But then, 

how do we deal with a means to basically require some sort of idenVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
38 

tification by everybody rather than have employers ask people for 

identification based on the way they look or based on their accent, 

which has obvious problems with it. 

Is there any way to accomplish all of these goals while avoiding 

the objection by those who would vigorously oppose a national ID 

card? 

Mr. VERDERY. That is a very tough question, and as I have 

talked to employers, it is one of the things that they complain 

about, is that the government has essentially put them in an impossible situation where they can’t ask the questions that they 

would need to ask to ascertain legitimacy of a would-be employee, 

even if they wanted to do the right thing. 

I do think, though, as you come into a generation of better drivers’ licenses with the recent action by the Congress and then the 

States implementing this over the next few years, better Social Security cards and better linkages amongst those databases, you 

could have a situation where an employee or a would-be employee 

walks into a place of employment and is given a form saying, you 

need to provide one of the following so we can vet your appropriateness for employment: A drivers’ license that is properly secured, a 

Social Security card that can’t be issued to somebody who is not allowed to work, or this new guest worker card or other appropriate 

visa. Each of those documents has to be secure. But I think we are 

moving in that direction. It is just a question of how fast. 

Chairman CORNYN. I appreciate that answer. Of course, I think 

the sort of—the reason why I believe, and I think Senator Kyl 

would agree with me, why comprehensive reform is important rather than the sort of rifle shot or piecemeal approach is we need to, 

I think, take advantage of every means available to us to try to 

begin to apply a pincer movement, so to speak, on the problem 

rather than just deal with one aspect of it, let us say a temporary 

worker program, and try to say that, well, we are going to deal 

with all of our immigration-related and economic immigrant sort of 

problems through that mechanism. 

What we are proposing is we not only enhance that border security to deal with people as they come across illegally, including the 

detention space, we are also going to provide resources for interior 

enforcement, which we do next to nothing about now. And then we 

are also going to deal with a workable mechanism for prospective 

employers to deal with prospective employees to determine who can 

legally work in the country. 

I think through these mechanisms, through this at least threeprong approach, that we will have a much better chance of dealing 

with a problem that right now is essentially out of control. 

I want to just say, in conclusion, thank you again to each of you 

for your willingness to appear here today and to answer tough 

questions and to help us hopefully come up with some meaningful 

solutions. Thank you, Mr. Chairman. 

Chairman KYL. Thank you, and I want to conclude by indicating 

that any of the members of the Subcommittees who wish to submit 

statements, their statements will be taken for the record. We 

should probably allow a couple of days for submission of any written questions to our panelists, and I would appreciate your coVerDate Aug 31 2005 07:54 Jul 28, 2008 Jkt 043519 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43519.TXT SJUD1 PsN: CMORC
39 

operation. I have just got a couple about—well, basically the statistics that I asked you for, if you can get them to me. 

We really do appreciate your testimony, as Senator Cornyn said, 

and the really good ideas about how to constructively deal with the 

problems. We started the hearing out talking about the problems, 

the fact that we have got far too many people who are released on 

their own recognizance who don’t show up, not enough detention 

space. We have an expedited removal process that is working very 

well that actually deters violation, but we need to expand that to 

the entirety of the border. 

All of these items need to be calculated, basically, for us to determine what we need to do in our legislation and what the costs of 

that will be, because Senator Cornyn and I very much want to end 

up here with a constructive piece of legislation that provides a 

maximum control of the border, provides maximum enforcement in 

the interior, and provides the most workable and enforceable workplace program, as well. 

With a combination of all of those, we obviously hope to eventually end this problem of illegal immigration while satisfying all of 

the requirements that our immigration laws generally seek to 

meet, including providing enough workers in our country. It is not 

going to be easy, but with the help of people like yourself, we can 

make it happen. So again, we thank you very much for your testimony today. 

The hearing is adjourned. 

[Whereupon, at 4:30 p.m., the Subcommittees were adjourned.] 

[Questions and answers and submissions for the record follow.] 

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