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REVIEW OF DEPARTMENT OF JUSTICE

IMMIGRATION DETENTION POLICIES

HEARING

BEFORE THE

SUBCOMMITTEE ON 

IMMIGRATION AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

DECEMBER 19, 2001

Serial No. 55

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman 

HENRY J. HYDE, Illinois 

GEORGE W. GEKAS, Pennsylvania 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

ED BRYANT, Tennessee 

STEVE CHABOT, Ohio 

BOB BARR, Georgia 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

LINDSEY O. GRAHAM, South Carolina 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

JOHN CONYERS, JR., Michigan 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION AND CLAIMS

GEORGE W. GEKAS, Pennsylvania, Chairman

DARRELL E. ISSA, California 

MELISSA A. HART, Pennsylvania 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

CHRIS CANNON, Utah, Vice Chair

JEFF FLAKE, Arizona 

SHEILA JACKSON LEE, Texas 

BARNEY FRANK, Massachusetts 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

LORA RIES, Counsel 

CINDY BLACKSTON, Professional Staff 

LEON BUCK, Minority Counsel 

(III)

C O N T E N T S 

DECEMBER 19, 2001

OPENING STATEMENT 

Page 

The Honorable George W. Gekas, a Representative in Congress From the 

State of Pennsylvania, and Chairman, Subcommittee on Immigration and 

Claims ................................................................................................................... 1

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

State of Texas, and Ranking Member, Subcommittee on Immigration and 

Claims ................................................................................................................... 1

The Honorable John Conyers, Jr., a Representative in Congress From the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4

WITNESSES 

Mr. Joseph R. Greene, Acting Deputy Executive Associate Commissioner for 

Field Operations, Immigration and Naturalization Service 

Oral Testimony ..................................................................................................... 16

Prepared Statement ............................................................................................. 17

Mr. Edward McElroy, New York District Director, New York District Office 

Oral Testimony ..................................................................................................... 20

Prepared Statement ............................................................................................. 17

The Honorable Paul H. Thomson, Office of the Commonwealth’s Attorney 

for the City of Winchester 

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 24

Ms. Margaret H. Taylor, Professor of Law, Wake Forest University School 

of Law 

Oral Testimony ..................................................................................................... 25

Prepared Statement ............................................................................................. 27

APPENDIX 

STATEMENTS SUBMITTED FOR THE RECORD

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

State of Texas ....................................................................................................... 45

The Honorable John Conyers, Jr., a Representative in Congress From the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 46

Bishop Thomas Wenski, Auxiliary Bishop of Miami, Chairman, United States 

Conference of Catholic Bishops’ Committee on Migration ................................ 48

MATERIAL SUBMITTED FOR THE RECORD

Letter from Mr. Ralston H. Deffenbaugh, Jr., President, Lutheran Immigration and Refugee Service ..................................................................................... 56

(1)

REVIEW OF DEPARTMENT OF JUSTICE 

IMMIGRATION DETENTION POLICIES 

WEDNESDAY, DECEMBER 19, 2001

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 2 p.m., in Room 

2237, Rayburn House Office Building, Hon. George W. Gekas 

[Chairman of the Subcommittee] presiding. 

Mr. GEKAS. The hour of two o’clock having arrived, the Committee will come to order. 

We note the presence of the lady from Texas, the Ranking Minority Member, and note the presence of the Chair, thus qualifying as 

a full hearing with the quorum of two being present and in attendance. 

The purpose of today’s hearing is, as everyone knows by now, to 

review the policies of the Immigration and Naturalization Service 

as they pertain to detention, detention of people entering our country and who either come in illegally or do illegal acts thereafter 

and in some way violate their welcome to our country. 

It should be noted that this is not a late awakening on the part 

of this Committee on the questions of detention, nor were they fomented by the horrific events of September 11, although they have 

accelerated our interest in it, but rather our interest goes back to 

years before when we have noted horror stories emerging out of 

that same detention policy about which we speak. Needless to say, 

even before September the 11th many of us saw a need for replenishing our knowledge and thinking about the questions of detention, and this hearing is going to focus on some of the what we perceive as flaws and, hopefully, on some of the remedies that have 

evolved during this time and remedies that may be proposed by 

members of this panel. So, we are anxious to hear the testimony. 

The question of detention that may lead to—or release from detention that may lead to terrorism is not just an imagined possibility, far-flung possibility, but rather the testimony will demonstrate that indeed that is a reality, that release from detention 

can cause an atmosphere which can create a terroristic act; and, 

therefore, it is appropriate before September 11, since September 

the 11th and from now until the foreseeable future. 

With that, I yield to the lady from Texas for an opening statement. 

Ms. JACKSON LEE. I thank the distinguished Chairman of the 

Subcommittee. 

2

I welcome the witnesses. I look forward to their testimony. 

Mr. Chairman, you are absolutely right. Let me thank you for 

holding this timely oversight hearing and to reinforce your statement that these issues are relevant preceding September 11 and 

post September 11. Clearly, what we have the responsibility of 

doing is fixing whatever is broken. Might I add, however, for those 

who are part of the INS family who is in the audience, let me also 

say happy holiday to you, that I believe with the leadership of 

Commissioner Ziglar we have the opportunity as Members of Congress to work together to solve some of these problems. We simply 

need to have these problems highlighted so we can collectively and 

collaboratively work together. 

I would be remiss as I review the remarks that I would like to 

present to this Committee if I don’t emphasize another concern or 

point that I think is extremely important, and that is balance. The 

INS is charged with both facilitating legal immigration and enforcing the Nation’s laws to prevent illegal immigration. That balance 

should be kept in mind as we explore possible changes to INS policy. It can be both tempting and comforting to err on the side of 

shutting all our borders tight, locking up all those we think are 

dangerous. That is not the constitutional bedrock the country was 

built upon nor the strength of our Nation. However, it is the obligation and right of the Nation to protect its citizens and its sovereign 

rights. 

I, too, want to be assured that we are not allowing those who 

wish to do harm to innocent persons into our Nation. We abhor the 

absolute, unspeakable violence of September 11 when innocent persons were killed on the basis of some of the individuals who came 

into this country legally, who were overstaying. There is no doubt 

that we need to confront that. 

At the same time, Mr. Chairman, though we may not directly 

focus on this during this hearing, I cannot help but say that I am 

greatly concerned about 5,000 individuals who are detained with no 

understanding to the extent—are they there only because of their 

ethnic background, their religious background, or are they there for 

any reason? Five thousand of those individuals, are they providing 

us with succinct and very crucial information to help us ferret out 

Osama bin Laden or any other terrorist? If that was the case, I 

would welcome their detention, but we do not know. 

So I think as we look at the question of detention and whether 

or not the INS has erred and whether or not we need to do more, 

we must again balance the needs and necessities of this particular 

act and these particular responsibilities. 

This delicate balance can be seen in recent decisions by the Supreme Court, who appear to be moving toward a higher degree of 

protection of civil liberties for noncitizens, while the Attorney General and the President are seeking additional power to detain 

aliens who they think might be dangerous. 

Under the new PATRIOT Act, the Attorney General only has to 

certify that an alien is likely to engage in or support a bad act and 

the alien is subject to mandatory detention. This detention would 

be mandatory even for aliens who have been granted asylum. This 

could present problems. If detainees are not allowed an opportunity 

to contest their likelihood of engaging in terrorist activity, due 

3

process problems seem to be certain to arise. These issues of due 

process and proper balance arise in the area of mandatory detention and the rights of asylum seekers. 

Provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 require mandatory detention of most criminal and certain categories of noncriminal aliens and asylum seekers, taking away the INS discretion to release these groups. Again, 

as the Chairman referred to, problems preceding before September 

11, but this has caused more practical problems like creating the 

issue of detention space. Where do we house all these people? And 

what we do want to do with them if they do not pose a credible 

threat to national security and they are not a danger to the community or risk of flight? What do we do with the children and families who have been detained in very uncomfortable and certainly 

unsatisfactory conditions? 

We will hear testimony today from the INS that, from fiscal year 

1994 to 2001, the average daily detention population has more than 

tripled, from 5,532 to 19,533. And in fiscal year 2000 alone, the 

INS admitted more than 188,000 aliens into detention. 

I have visited detention centers particularly in New York and I 

do under the crisis that we face. Surely we cannot continue to detain people at that rate. 

The New York district model purports to have the answer. In the 

New York district the number of inadmissible aliens arriving at 

JFK dropped 63 percent from fiscal year 1992 to fiscal year 1999. 

The number of asylum applications dropped 91 percent in that 

same period. This occurred while the passenger traffic increased 18 

percent at JFK. The way the New York model does it is by detaining all aliens who are inadmissible for fraud or documented-related 

reasons. 

Is this an applicable model throughout the Nation, and do we 

have enough beds in-house to house all these persons, and what do 

we want to do? We do want to stop the types of incidences that occurred in Virginia in the Bell case. We will hear from Commonwealth Attorney Paul H. Thomson. 

Something must be done to prohibit anyone, alien or not, who 

has a criminal history and is a danger to the community from having uninhibited freedom. We agree with that. 

Another possible option comes from the INS detention policy expert Margaret Taylor, Professor Margaret Taylor, who suggests a 

concept of supervised release as an option to detention. This option 

was tested from 1997 to 2000 in New York at the request of the 

INS on noncitizens including asylum seekers, individuals facing removal as a result of a criminal conviction, and undocumented 

workers apprehended at work sites. The project entailed answering 

the question of what type and what level of supervision will increase people’s rate of appearance in court and compliance with immigration law rulings. Professor Taylor will discuss the results. 

Finally, Mr. Chairman, we are not asking for a free-for-all. We 

are not asking for the terrible tragedy that occurred with those 

who had visas who entered legally and illegally that perpetrated 

the heinous crimes of September 11 not being trapped and not 

being assessed that they were here illegally and therefore procedures not moving forward, but I will say to you that we can do a 

4

better job. I believe with the INS committed to helping us do a better job we are getting to the problems and then the solutions. We 

can do that. 

But I simply would say that, even as we attempt to find solutions, let us not be so hasty that the mounting detainees, 5,000 and 

10,000 based upon their Muslim background, become the rule of 

the day and not the exception. We can do better than that here in 

America. 

I thank the distinguished Chairman. I yield back my time. 

Mr. GEKAS. We thank the lady. 

Let the record indicate that the gentleman from Utah, Mr. Cannon, is present; that the gentleman from Michigan, Mr. Conyers, 

the Ranking Member of the full Judiciary Committee is present; 

and that the lady from California, Ms. Lofgren, is also in attendance. 

It is the intent of the Chair to allow each Member to submit an 

opening statement for the record and thus expeditiously to move to 

the testimony at hand. 

Ms. JACKSON LEE. Mr. Chairman, may I make an inquiry, 

please? 

Mr. GEKAS. Proceed. 

Ms. JACKSON LEE. Mr. Chairman, the Ranking Member is here. 

My understanding was that he wanted to make a few brief opening 

remarks. 

Mr. GEKAS. That is why I asked. If I am persuaded that the gentleman wishes to make opening remarks, which I am, he may proceed. 

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

Mr. CONYERS. Just a few, Mr. Chairman. 

I want to thank Chairman Gekas for his fairness in pulling this 

together. After all, we did get one out of four witnesses. So that’s 

not so bad, is it? 

But my comment is really centered around the whole question of 

a mandatory detention. Now, preventative detention is one thing, 

but mandatory detention really contemplates that, from the beginning, you lock people up; and I think all the witnesses may likely 

agree that we just don’t have the space to lock everybody up that 

initially comes up on the screen. 

So, we have got this problem of locking people up first, and either they through legal proceedings, battle their way out of prison 

or they get deported as a result of losing their case. Now, it may 

appeal to the simple of mind that that is—that what is wrong with 

that? But the answer is, plenty. We aren’t set up to do it. So I don’t 

want to go back into 1996 legislation with this kind of a circumstance. 

Secondly, are we sure that this is the best use of resources, to 

incarcerate people who don’t even present a risk that neither the 

courts or the U.S. Attorney can determine exists? So there is a very 

practical aspect about this that I am hoping will be fairly considered here with all the witnesses that are before us. 

In 1996, we tore families asunder by sending detainees to prisons, and was this an accident a long way from home? I mean, it 

looks like we are trying to create more problems on the home front 

than are necessary. So the question that might be considered 

5

maybe after this is the detention of hundreds of people, maybe over 

a thousand, that have followed the September 11 tragedy that we 

have got to find out what is going on there. 

You know, in the Detroit area, the Chief of Police in Detroit refused to send the letters out. So here was the poor U.S. Attorney 

in his first week on the job, the first thing he had to do, poor Jeffrey Collins, is send out these friendly letters. And, to his credit, 

he put the best face on it. He said, you know, we could just go out 

and ask your employer and your neighbors what all the things we 

want to know or we could send you a letter and invite you to come 

in. 

That sounds like the better course, if you think either course is 

what we should be doing. So here we go. I appeal to my friend of 

great seniority that chairs the Committee that we consider at your 

earliest convenience what we are going to do with all these people 

that are being rounded up, being sent letters—and, yes, somebody 

may have overstayed the terms of their visa, but I don’t think INS, 

of all the agencies and all the Government—I mean, these are the 

least likely people, with all due respect to them and their—there 

is a new leadership crew now, but in the past even the ones that 

I knew and liked, they couldn’t get the ball down the field. Something like the Detroit Lions. I mean, it was just difficult. 

Mr. GEKAS. It can’t be that bad. 

Mr. CONYERS. It was that bad. Almost that bad. Nothing is really 

that bad. But I thank the Chairman. 

Ms. JACKSON LEE. You are from—— Mr. CONYERS. I am from Detroit where the Lions come from. 

Thank you very much. 

Mr. GEKAS. We thank the gentleman. 

Let the record also indicate that the gentleman from Texas, Mr. 

Smith, former Chairman of this very Committee, is in attendance. 

With that, we will proceed with the introduction of the witnesses. 

First, we introduce Joseph R. Greene, the Acting Deputy Executive Associate Commissioner for Field Operations at INS headquarters. He received his master’s degree in philosophy from Fordham, has served with the INS since 1973 in a variety of positions. 

For instance, he started out as an immigration inspector at JFK, 

promoted to criminal investigator. In 1980, he transferred to the 

Miami district office as an immigration examiner. He also served 

as supervisory special agent in Miami. 

He supervised the criminal investigation of Bhagwan Shree 

Rajneesh, an Indian guru whose cult intended to take over a small 

town in central Oregon. For his work he was awarded the Attorney 

General’s Award for Distinguished Service and was appointed Deputy District Director for the Portland District. 

In January, 2001, he assumed the position of Assistant Commissioner for Investigations and is currently acting as Deputy Executive Associate Commissioner for Field Operations. He directs the 

operational activities for all INS enforcement programs throughout 

the United States and nationwide. 

After him, we will come to the testimony of Edward J. McElroy, 

the District Director of the New York District of the Immigration 

and Naturalization Service. He graduated from Fordham University with a bachelor of science degree, served in the United States 

6

Air Force, began his INS career as a special agent in Newark, New 

Jersey, transferred to the New York district in 1985 where he 

served in various managerial positions including Assistant District 

Director for Detention and Deportation. He has served as the district director of the New York district as of 1994. 

In connection with his testimony I will, without objection, be entering into the record a document prepared by Mr. McElroy’s office 

titled: New York District Detention and Parole Policy, an Overview. 

This document lays out the parole and release policy of the New 

York district office and its reasons for adopting that policy. This 

was presented to my staff during an oversight trip to Mr. McElroy’s 

office in October. Information relating to specific individuals in this 

document has been redacted to ensure those individuals’ privacy. 

In offering this document, I make no representations with respect 

to same but believe that it will assist this Subcommittee in its consideration of these issues. 

[The information referred to follows:]

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Mr. GEKAS. He is joined at the table by Paul H. Thomson, Commonwealth’s Attorney for the City of Winchester, Virginia, first 

elected Commonwealth’s Attorney for Winchester in 1985. He is a 

graduate of Washington and Lee University in Lexington, Virginia, 

captain of both the cross-country and track teams for 3 years at 

Washington and Lee, served in the United States Army in the 

137th arctic and mountain field artillery in Fort Richardson, Alaska, attended the University of Puget Sound School of Law in Washington State and worked as a back county ranger at Olympic National Park in Port Angeles, Washington, before returning to Lexington, Virginia. 

He is a graduate of Washington and Lee School of Law in June 

1983. Active professionally, board member of the Virginia Association of the Commonwealth’s Attorneys, instructor for the Rappahannock Criminal Justice Academy, and guest teacher at the University of Virginia Law School, active in the community, recipient 

of the 2000 Preservation of Historic Winchester Elsie Rosenberger 

Award for Outstanding Volunteer Service. 

Then the final witness would be Margaret H. Taylor, Professor 

of Law, Wake Forest University School of Law, graduate of Yale 

Law School where she was editor of the Yale Law and Policy Review and University of Texas at Austin where she was Phi Beta 

Kappa. Author of various articles on immigration law, including, 

Promoting Legal Representation for Detained Aliens: Litigation and 

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and Related Issues. She has spoken before numerous organizations, 

including the Migration Policy Institute and the Criminal Justice 

Institute at Harvard Law School; and she is a member of the 

American Bar Association’s Coordinating Committee on Immigration Law. 

As is the custom, we will entertain the written statements of 

each of the witnesses and, without objection, include them initially 

and finally as part of the record. In the meantime, we will ask the 

witnesses to try to review that written testimony within a bank of 

5 minutes which we will be according by a timer to each of the witnesses. We will proceed as they were introduced, with the first testimony being from Mr. Greene, after we do further housekeeping 

and note the presence of the gentleman from California, Mr. 

Gallegly, a Member of the Committee, who is now in attendance. 

Mr. GEKAS. Mr. Greene, you may proceed. Five glorious minutes 

are yours. 

STATEMENT OF JOSEPH R. GREENE, ACTING DEPUTY EXECUTIVE ASSOCIATE COMMISSIONER FOR FIELD OPERATIONS, 

IMMIGRATION AND NATURALIZATION SERVICE 

Mr. GREENE. Thank you, Mr. Chairman, and thank you Members 

of the Committee. I would like to thank the Committee today for 

the opportunity to testify. It is my pleasure to discuss with you detention policy in the INS from a national perspective. 

Mr. GEKAS. Is the mike on? 

Mr. GREENE. Is the mike on? Okay. My apologies, sir. 

As I said, I will be discussing providing the Committee with information with respect to the INS detention policy from the national perspective. I leave it to my colleague, Mr. McElroy, to discuss the particular situation in New York. 

As you know, since 1995 the Congress has worked very closely 

with the INS in increasing our capabilities and strengthening our 

capabilities to detain people who are in the United States in violation of law. We have seen, as Congresswoman Jackson Lee indicated, a dramatic growth in the INS’s capabilities to deal with the 

problem of illegal detention and removal; and, in fact, at the same 

time INS detention policy has evolved and has been crafted to reflect a wide spectrum of public policy issues. 

There is a public interest in maintaining and promoting an orderly immigration system. There is a public interest in the infective 

enforcement of the immigration law. There is a public interest in 

maintaining an effective detention management system that reflects the proud tradition of jurisprudence with regard to due process in this country. There is a public interest in discharging our 

treaty obligations and our duty to protect bona fide asylum seekers 

in this country. There is a public interest in discouraging people 

from attempting to evade or abuse our generous immigration laws. 

There is a public interest in protecting public safety. 

Within this context, we have crafted a national immigration detention policy that sets standards and accounts for local needs and 

requirements. Those national standards are contained in the 12 detention standards with which this Committee is well familiar, having to do with attorney access, having to do with counselor access. 

These are standards that evolved over a period of years and go diVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
17

rectly to the professional standards that the American Corrections 

Association uses for all jails across the country. 

But the policy establishes within it four priorities which are contained in the testimony. I will just review them briefly. 

The first priority is mandatory detention requirements where the 

statute requires that the person in our custody shall be detained. 

The second category deals with other criminals who are not subject to mandatory detention, including security and related crimes, 

aliens who are deemed to be a community or a flight risk and alien 

smugglers. 

The third category includes inadmissible noncriminal aliens, 

aliens who have committed fraud or were smuggled into the United 

States, aliens who are captured at a work site in violation of their 

immigration status. 

Finally, category four includes noncriminal border apprehensions, other aliens not subject to mandatory detention, aliens 

placed in 240 proceedings and for which bonds are set. 

These are the national standards that are put into place, but importantly—the most important aspect of the INS detention policy 

is that each case requires a case-by-case evaluation that balances 

the various factors that we have discussed, that attempts to balance the various responsibilities that the Immigration Service has 

in connection with a public interest. 

You know that when district directors such as Mr. McElroy and 

the position that I held in Denver for 11 years, you know that the 

three basic criteria that we look at when we make a decision to put 

somebody—to hold them in INS custody is whether they qualify 

under the mandatory detention mandate, whether they are a 

threat to public safety, and whether they are likely to abscond; and 

each district director reviews each individual case with an eye to 

those requirements. 

Since the terrorist attacks of September 11, this policy, like all 

of the policies within the Government, has been subject to a review; 

and although the INS began a wall-to-wall review of detention policy within the framework of its national detention strategy, I can 

tell you that this effort has assumed new urgency since the attacks 

occurred. 

We look forward to working with the Committee. We look forward to a fulsome discussion today. I will be happy to answer your 

questions after the statements are completed. 

Mr. GEKAS. Thank you. 

[The prepared statement of Mr. Greene and Mr. McElroy follows:]

PREPARED STATEMENT OF JOSEPH GREENE AND EDWARD MCELROY

Mr. Chairman and Members of the Subcommittee, I am pleased to have the opportunity today to testify on ‘‘The Department of Justice Immigration Detention 

Policies.’’ Strengthening the nation’s capacity to detain and remove criminal and 

other deportable aliens is a key component of the Immigration and Naturalization 

Service’s (INS) comprehensive strategy to deter illegal immigration and protect public safety. We believe that with the strong support from the Congress, INS has increased its effectiveness in the apprehension, detention and removal of criminal 

aliens and violators of immigration laws from the United States. 

18

GENERAL OVERVIEW OF INS DETENTION POLICY

With the passage of the Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996 (IIRIRA), Congress expanded the number of crimes that made people 

subject to removal. It also eliminated INS’ discretion to release certain aliens by requiring that virtually any non-citizen subject to removal on the basis of a criminal 

conviction, as well as certain categories of non-criminal aliens, be detained without 

bond. As a result of IIRIRA, INS is required to detain a much larger number of people. 

The provisions in IIRIRA requiring mandatory detention, along with the rise in 

sophisticated smuggling operations, and the increase in the number of criminal 

aliens have resulted in the need for significantly more detention space. From Fiscal 

Year (FY) 1994 to FY 2001, the average daily detention population has more than 

tripled from 5,532 to 19,533. In FY 2000 alone, INS admitted more than 188,000 

aliens into detention. In fact, the average daily population of criminal aliens in detention between FY 1994 and FY 2001 more than tripled from approximately 3,300 

to 13,210. At the same time, the number of criminal aliens removed by INS more 

than doubled from 32,512 in FY 1994 to 70,873 in FY 2001. 

Currently, there are approximately 20,000 aliens detained by the INS while in immigration proceedings or awaiting removal after being issued a final order of removal. Of the aliens currently being detained, sixty-five percent are criminal aliens. 

INS detainees are housed in a variety of facilities across the country. The INS has 

access to 21,304 beds to detain aliens either at INS-owned and operated facilities 

or in state, local or FY 2001 was 40 days while the median length of stay was 14 

days. Since FY 1995, total removals have increased 155 percent to nearly 176,000 

in FY 2001. The Detention and Removal program currently employs 212 Detention 

and Deportation Officers, 617 Deportation Officers and 1,797 Detention Enforcement Officers. 

INS detention policy sets forth guidelines for determining priorities in which 

aliens should be detained. This policy sets forth four major categories of aliens and 

classifies these individuals as required detention, high priority, medium priority and 

lower priority. The four categories are: Category I—mandatory detention; Category 

II—includes security and related crimes, other criminals not subject to mandatory 

detention, aliens deemed to be a danger to the community or a flight risk and alien 

smugglers; Category III—includes inadmissible non-criminal aliens (not placed in 

expedited removal), aliens who committed fraud or were smuggled into the United 

States, worksite apprehensions, and Category IV—includes non-criminal border apprehensions, other aliens not subject to mandatory detention, aliens placed in expedited removal referred to Full 240 procedures. 

When an alien is apprehended at or near the border by a Border Patrol Agent 

(BPA), the alien is usually transported to the Border Patrol Station by the apprehending agent. Once the Border Patrol decides to proceed with the administrative 

or criminal processing of an alien, the detention process begins. There are three reasons INS detains an alien: risk of flight, risk of danger to the community, and requirement of law (such as mandatory detention of certain aliens). Once charged, 

aliens detained by the INS are either in proceedings before an Immigration Judge 

to determine whether or not they are eligible to remain in the United States, or they 

already received final removal orders and are awaiting removal from the United 

States. 

MANDATORY DETENTION PROVISIONS

Detained aliens primarily fall into two general categories—those being detained 

during immigration proceedings and those that have already been issued removal 

orders and are waiting to be removed. Many aliens currently detained by INS are 

subject to mandatory provisions under the Immigration and Nationality Act (INA). 

There are two major categories of aliens subject to mandatory detention—arriving 

aliens placed in expedited removal proceedings (section 235 of the INA) and aliens 

subject to mandatory detention under section 236(c) of the INA. The latter group 

includes all aliens chargeable as terrorists and virtually all aliens who are chargeable as criminals. Additionally, aliens subject to final orders of removal as criminals 

or terrorists are also required to be detained in order to effectuate their removal 

from the United States. 

BOND/PAROLE DETERMINATIONS: 

Once arrested, an alien who will be placed in removal proceedings must be transported from the point of arrest to a processing center or District Office to be processed into custody. If there is no legal requirement for mandatory detention, signifiVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
19

cant risk of flight or danger to the community, an alien may be released on his or 

her own recognizance, bonded out (see INA section 236(a) for general bond authority), or paroled into the community. Aliens who are eligible for bond are also eligible 

for a bond redetermination hearing before an Immigration Judge. In general, detention determinations are based on the danger posed by the alien to the community 

and the likelihood that he or she will appear for all scheduled hearings. Factors that 

the INS considers in making this determination include: prior criminal history, the 

severity of the crimes for which the alien was convicted, history of failure to appear 

for court, equities in the United States and evidence of ties to the community, availability of relief from removal and the likelihood of relief being granted, and prior 

immigration violation history. These factors have been repeatedly upheld by Immigration Judges and the Board of Immigration Appeals (BIA). In cases where an arriving alien asserts an asylum claim, INS policy favors release from custody if the 

alien is found to have a credible fear of persecution. (8 CFR 235.3). 

In a bond redetermination proceeding, the Immigration Judge reviews the previous INS determination as to the alien’s dangerousness and the possibility that he 

or she may not appear for hearings if released. The Immigration Judge may base 

that determination on any information that is available or that is presented by either party. Both the INS and the alien have the right to present evidence and witnesses to the Immigration Judge. The bond hearing is separate and apart from the 

removal proceeding. At the conclusion of the bond hearing, the alien or the INS may 

appeal the Immigration Judge’s bond decision to the BIA. 

POST-ORDER DETENTION & RELEASE DETERMINATIONS

Section 241(a) of the INA authorizes the Attorney General to detain aliens who 

are subject to final orders of removal in order to effectuate their removal from the 

United States. While detention following a final order is often discretionary, the INA 

provides for mandatory detention of criminal and terrorist aliens with a final order 

of removal. Section 241(a)(1) of the INA provides, as a general rule, that an alien 

with final orders shall be removed within 90 days. Following the 90-day removal 

period, the Attorney General has the authority to continue detention of certain 

aliens, including those determined to be a danger to the community or unlikely to 

comply with a removal order. The standards for determination of release for aliens 

subject to a final order of removal are set forth in 8 CFR 241.4. That regulation 

provides for automatic administrative custody review procedures for non-mandatory 

detention aliens at multiple levels and at periodic intervals. This review process provides the alien with numerous opportunities to provide evidence in support of release. 

In Zadvydas v. Davis, 121 S. Ct. 2491 (2001), the U.S. Supreme Court held that 

under section 241(a)(6), the INA generally permits detention of aliens under a final 

order of removal only for a period reasonably necessary to carry out their removal 

from the United States. The Supreme Court held that detention of such aliens beyond the statutory removal period for up to six months after entry of a final removal 

order is presumptively reasonable. (121 S.Ct. at 2504–05). After six months, if an 

alien can demonstrate that there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government 

must rebut the alien’s showing in order to continue detention of the alien. Additionally, the Supreme Court recognized that there may be special circumstances, such 

as those involving terrorists or especially dangerous individuals, in which continued 

detention may be appropriate even if removal is unlikely in the reasonably foreseeable future. (Id. At 2505). The Court’s decision does not apply to arriving aliens—

those still technically at our borders and paroled in (including groups such as Mariel 

Cubans who are treated as still seeking admission). Based on the Supreme Court’s 

decision, the INS recently issued regulations implementing the decision and setting 

forth the new review process. (66 FR 56967, November 14, 2001) 

IMMIGRATION HEARINGS AND REMOVAL

When an apprehended alien decides to exercise his or her right to a hearing, the 

alien must await proceedings before an Immigration Judge. This process takes place 

under the auspices of the Executive Office for Immigration Review (EOIR). There 

are a number of potential outcomes to these hearings. If the alien is eligible for a 

bond redetermination hearing, that will be held first. Once a decision on the bond 

is made, another hearing is typically held to consider the removal charge. The most 

common outcome of the removal proceeding is a final order of removal. In such instances, the Immigration Judge has determined that an individual is removable 

from the United States or ineligible for admission into the United States. 

20

During the removal hearing process, an alien may be granted relief, such as asylum, as a result of the facts presented at his or her hearing, the alien may be permitted to withdraw his or her application for admission, or the case may be terminated outright if it is determined that the removal charge is not sustainable or evidence comes to light that the alien is lawfully present. 

An alien who has been ordered removed may pursue an appeal of the Immigration 

Judge’s decision. Appeals of immigration hearings are the jurisdiction of the BIA. 

The BIA decisions may be appealed by aliens to the U.S. Courts of Appeals, thus 

moving from the administrative law process in the Executive Branch to the U.S. 

Courts for a final decision. The final authority for immigration appeals is the U.S. 

Supreme Court. The time it takes to proceed through the appellate process can be 

significant and often places a burden on INS to provide long-term detention. Another avenue for effecting an alien’s removal is by reinstating a prior final order of 

removal. When an alien previously removed from the United States re-enters illegally, Sec. 241(a)(5) provides for reinstatement of the removal order. 

RELEASE POLICY IN NEW YORK DISTRICT

INS policy requires a case-by-case custody determination for aliens determined to 

have passed the credible fear threshold. This policy balances the need to detain people in order to protect the public safety and ensure appearance for immigration 

hearings, and humanitarian concerns such as family reunification and medical history. 

The decision of how to achieve this balance takes into consideration many national and local factors. The danger to the community, availability of appropriate 

detention space, the alien’s identity, and family or community support, etc., are 

some or all of the factors considered in determining whether an alien will comply 

with the terms of their release from custody. 

The New York District Office, as do all District Offices, examines these factors 

in each individual case before reaching their conclusion. The New York District is 

unique as compared to other INS districts in that it has two contract detention facilities dedicated solely to asylum seekers. As a result, almost all aliens are available for immigration proceedings and can be easily removed upon the issuance of 

a final order of removal. In September 2000, the General Accounting Office (GAO) 

issued a report on the expedited removal process. As part of that report, GAO determined that 42 percent of aliens who claimed credible fear and were released subsequently failed to appear at their immigration hearing and were issued an order of 

removal in absentia (termed ‘‘absconders’’). The New York District has an absconder 

rate of 28 percent for this class of aliens. GAO recommended that INS analyze the 

characteristics of aliens claiming credible fear who appear for hearings and those 

who are absconders and use these results to re-evaluate existing policy on releasing 

aliens who claim credible fear. INS has contracted with a private company to accomplish this task. This analysis will examine the same database as that was used for 

the GAO Report and will then expand the database to look at many variables to 

determine which, if any, affect the rate at which an alien absconds. The results from 

the GAO study are disturbing. However, INS is taking into account GAO’s recommendations in the study currently being conducted, and will make adjustments 

to the INS release policy as appropriate. 

Commissioner Ziglar recently announced an initiative to enter the names of all 

aliens with final orders who fail to appear for removal into the Federal Bureau of 

Investigation’s National Crime Information Center (NCIC). Previously, INS had only 

entered the names of criminal aliens and deported felons into NCIC. Entering the 

names of all absconders into NCIC will allow for increased identification and apprehension of those who fail to comply after completing the judicial process and receiving a final order of removal. 

In conclusion, INS, with the help of Congress, has made great strides in the effective enforcement of our immigration laws. I stand ready to work with you as the 

INS continues to protect public safety while providing safe and humane treatment 

to all individuals in our custody. Thank you for the opportunity to appear, Mr. 

Chairman. I look forward to your questions.

Mr. GEKAS. We now turn to Mr. McElroy. 

STATEMENT OF EDWARD McELROY, NEW YORK DISTRICT 

DIRECTOR, NEW YORK DISTRICT OFFICE 

Mr. MCELROY. Thank you, Mr. Chairman. 

21

First, I would like to acknowledge Congresswoman Lee for coming to New York and visiting our Wackenhut facility and taking an 

interest in our detainees and how we are treating people there. 

I would also like to recognize Congressman Gallegly for his trip 

to JFK, at which time I told him that I would not be turning out 

people with rose-colored glasses. What you see is what you get. If 

you want a direct answer, ask a direct question and you will get 

it. And I believe he got all of those things but not the rose-colored 

glasses. 

Now, with regard to detention policy in New York, I wish to take 

you back to the early 1990’s when the New York district was overrun by inadmissible aliens, many of whom filed for asylum and 

were then paroled into the U.S. For a hearing at which they never 

appeared. The parole policy at that time, coupled with the offer of 

employment authorized, led to abuse of the asylum process. 

With the elimination of employment authorized and liberal parole policies as magnets to attract people, the number of inadmissible aliens arriving at JFK has declined 70 percent, from 14,688 

in 1992 to 4,501 in 1997. At the same time, the number of asylum 

seekers dropped 93 percent, from 9,180 in 1992 to 620 in 1997. In 

fiscal year 1992, 63 percent of inadmissible aliens applied for asylum. Five years later, only 14 percent applied. 

The results of the New York district’s policy have been an effectively controlled port of entry, a weaker draw for those contemplating illegal entry and an effective counterterrorism element. 

In considering these numbers, one must ask themselves—the 

question begs, where did the people go? If they knew they were 

coming into New York as being undocumented or photo substituted 

documents and they were facing detention, my belief is that they 

took alternate routes. So the criticism of the policy is, did I inconvenience people in having them go to another port of entry other 

than New York? 

In section 602 of the Illegal Immigration Reform and Immigrant 

Responsibility Act entitled Limitations on Use of Parole, Congress 

amended the Immigration Nationality Act to authorize parole only 

on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Clearly, Congress intended to give INS the 

tools needed to tighten up a parole policy which had been abused 

by illegal immigrants. 

That Congress intended to be more restrictive in granting parole 

is evident from the words ‘‘limitations on use of parole.’’ still, the 

New York district does grant parole in appropriate situations. In 

the period April 1997 to early 1999, of 63 aliens paroled into the 

local community, 41 percent failed to appear for hearings and only 

2 percent were granted asylum. 

One thing I believe we should consider, ladies and gentlemen, is 

the difference between an asylee and a refugee. A refugee is an individual outside the United States who is applying through the 

U.S. Embassy for the right to come to the United States. An asylee 

is someone applying for asylum in the United States. Oftentimes, 

these people have transversed various countries and just presented 

themselves. Is there a dual standard here where we hold off refugees and we entertain people coming into the country with frauduVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
22

lent documents that have the methods, means, and money to get 

here as opposed to refugees who did not? 

Parole of all aliens found to have credible fear is not consistent 

with law, nor is it in the best interest of the United States. Inspectors refer all aliens who express any hint of credible fear or intention of filing asylum. Regardless of reason, they are referred. The 

asylum prescreening officers are instructed to give aliens every 

benefit of doubt in credible fear interviews. The result is that, of 

cases detained at Wackenhut, asylum was granted in only 34 percent of the cases where credible fear was found. And though section 

235(b) defines credible fear as meaning a significant possibility 

that the alien could establish eligibility for asylum, that standard 

is not always met. 

Since January, 1998, all but 30 cases referred by JFK Airport 

were found to have credible fear. Since the beginning of expedited 

removal process in April, 1997, 95 percent of all asylum 

prescreening officer decisions have resulted in the findings of credible fear. 

Ladies and gentlemen, are we dealing with an absolute value 

that anyone who asks for credible fear receives it or almost, with 

the exception of 5 percent? As most credible fear referrals involve 

aliens who arrive in the U.S. With fraudulent or no documentation, 

it is often impossible to identify them and/or obtain immigration 

records until far in the process. 

I think it was demonstrated with Mr. Gallegly’s group. I provided 

them the opportunity to meet with individuals in secondary inspection to question them themselves to see if they could make a decision within the 45-second to 1-minute time period in which Congress expects the Immigration Service to clear a flight within the 

45-minute time period. Paroling such aliens is not in the best interest of the United States. 

The negative acts of Gazi Mazir, the Brooklyn subway bomber, 

and Ramzi Yousef, one of the first World Trade Center bombers, 

is an indication of what can be expected should the service parole 

those who are found to have credible fear and turn out to be less 

than genuine asylum applicants. 

As a reflection on how the policy serves as a deterrent to illegal 

immigration asylum fraud, the numbers speak for themselves. Reverting to policies that are proven ineffective would only serve to 

send a signal to those who are seeking to establish themselves in 

the United States illegally that, despite Congress, despite the commissioners border control priorities, and despite the interests of the 

United States, the Service does not intend to take its mission seriously. That is not the case. We take it seriously, and we always 

will. 

Thank you, Mr. Chairman. 

Mr. GEKAS. We thank the gentleman. 

[See page 17 for the Prepared Statement of Mr. McElroy.] 

Mr. GEKAS. We turn to Paul Thomson. 

23

STATEMENT OF THE HONORABLE PAUL H. THOMSON, OFFICE 

OF THE COMMONWEALTH’S ATTORNEY FOR THE CITY OF 

WINCHESTER 

Mr. THOMSON. Thank you, Mr. Chairman and Members of the 

Subcommittee. 

My name is Paul Thomson, and I am the elected prosecutor for 

the small town of Winchester, Virginia, which is about 60 miles 

west of here. I prosecuted the case of Edward Nathaniel Bell, 

which was a capital murder case in Winchester, and Mr. Bell is 

now sitting on death row in Virginia pending his appeal. I believe 

the facts of this case demonstrates in stark terms the need for immigration detention reform. 

On October 30, 1999, Winchester police officer Rick Timbrook 

was shot in the face at close range by Mr. Bell and killed as Officer 

Timbrook was trying to arrest him. At the time of the killing, the 

defendant, Mr. Bell, was on liberty on a $3,500 bond pending a removal proceeding in the immigration court in Arlington, Virginia. 

The INS had arrested, charged and detained Mr. Bell on grounds 

that he had been convicted of a concealed weapons offense in Winchester on August 26, 1997. The officer who had arrested Mr. Bell 

was Rick Timbrook in 1997. 

Mr. Bell was admitted in the United States as a permanent resident alien 1992 from his native country of Jamaica. On May 16, 

1997, Sergeant Timbrook had arrested him for possessing a loaded 

handgun which was concealed. That case went to trial. It was appealed to the circuit court, and he was convicted by a circuit court 

judge. 

Immigration agents were called by my office to assist in the apprehension of Mr. Bell both in his lower court conviction stage and 

later in his circuit court stage. They appeared, Mr. Bell appealed 

to the circuit court. He was then convicted, and then approximately 

8 to 9 months later he was apprehended by INS agents on that 

conviction. He was detained on their recommendation of a $6,500 

bail. He then requested a bail determination proceeding, which he 

was granted; and the judge reduced the bond to $3,500, which he 

posted. 

During the process of fighting his removal, he obtained several 

continuances from the immigration court throughout 1998 and 

1999. During the pendency of these proceedings not only did he kill 

the officer during this period of time before his final hearing but 

he also committed other crimes throughout that period of time 

which the INS should have been aware of and he should have had 

his bail revoked on. 

Based on my extensive experience with this small town in dealing with Mr. Bell, I came to the firm conclusion that any alien in 

this status who is caught committing a weapons offense as defined 

by the United States Code should be detained without benefit of 

bond during removal proceedings. These removal proceedings 

should be accelerated on the immigration court docket for speedy 

disposition of cases involving dangerous resident aliens. 

Dangerous criminals like Mr. Bell have no business being released whatsoever. They have the greatest motive to seek revenge, 

as is what happened here, or to run. 

24

Obviously, tougher pretrial detention and release requirements 

would have seriously impaired Mr. Bell’s ability to greatly harm 

law enforcement officers in the community. However, in my opinion, detention eliminates all risk of harm and would save, in my 

opinion, precious INS resources. For example, releasing a defendant on bond pending removal presents INS agents with the difficult 

task of tracking down potentially dangerous criminals who are motivated to kill Government agents associated with their deportation 

hearings. 

Also, the immigration pretrial supervision of Mr. Bell was nonexistent. There was no home electronic monitoring or other meaningful intensive reporting requirements, nor was there any curfew 

imposed on the defendant. 

The time of the murder of Sergeant Timbrook was midnight on 

October 30, 1999. At this time resident alien Nathaniel Bell was 

on the streets of Winchester, Virginia, driving a stolen car, in possession of cocaine with intent to distribute it, which he was subsequently convicted of at his capital murder trial, and in possession 

of a hand gun with extra ammunition. He was also convicted of an 

exile offense at his murder trial. Further, Mr. Bell was particularly 

well known to display his hatred toward the police and Sergeant 

Timbrook in particular. 

In conclusion, today my narrow recommendation to this Subcommittee is that Federal law be changed so that aliens who are 

charged with committing weapons offenses as defined in United 

States Code be immediately detained. They should not be afforded 

bail pending deportation hearings. 

In the alternative, Federal law should provide for strong presumption of no bond unless and until a thorough background investigation is completed by INS agents in cooperation with local law 

enforcement. 

Thank you. 

Mr. GEKAS. We thank the gentleman. 

[The prepared statement of Mr. Thomson follows:]

PREPARED STATEMENT OF THE HONORABLE PAUL H. THOMSON

Dear Chairman Sensenbrenner: 

My name is Paul H. Thomson and I am the prosecuting attorney for the small 

city of Winchester, Virginia. I prosecuted the case of Commonwealth of Virginia v. 

Edward Nathaniel Bell, Winchester Circuit Court Docket No. 99-CR-478, Virginia 

Supreme Court Appellate Record No. 011777(2001). In this case, the defendant was 

sentenced to death on May 31, 2001, for the murder of Winchester Police Officer 

Sergeant Rick Timbrook while he was in the line of duty. The facts of this case demonstrate in stark terms the need for immigration detention reform. 

On October 30, 1999, Winchester Police Officer Sgt. Rick Timbrook was shot in 

the face at close range and killed by resident alien Edward Nathaniel Bell as 

Timbrook attempted to arrest him. At the time of the killing, Bell was at liberty 

on a $3,500 bond pending a removal proceeding in the Immigration Court, Arlington, Virginia. The I.N.S. had arrested, charged and detained Bell on the grounds 

that he violated Section 237(a)(2)(C) of the Immigration and Naturalization Act (as 

amended) in that he had been convicted of a weapons offense in Winchester on August 26, 1997. 

The defendant Eddie Bell was admitted into the United States of America as a 

resident alien in 1992 from his native country of Jamaica. On May 16, 1997, while 

living in Winchester, Eddie Bell was caught in possession of a concealed and loaded 

handgun by the very officer he murdered two years later—Sgt. Rick Timbrook. Bell 

was convicted of this offense in Winchester Circuit Court on August 26, 1997. Bell 

was arrested by I.N.S. agents on September 17, 1998, and was detained on $6,500 

bail pending removal and deportation proceedings. Bell requested that the ImmigraVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
25

tion judge reduce his bail and it was reduced to $3,500 on October 8, 1998. He made 

bond at this amount and he was released on October 9, 1998. 

Bell began fighting the removal proceedings. He obtained several continuances 

from the Immigration Court throughout 1998 and 1999. During the pendency of 

these proceedings, not only did Bell shoot and kill Sgt. Timbrook, but he also committed other crimes that he failed to reveal on a subsequent application to become 

naturalized. Bell was scheduled for a final hearing in Immigration Court on November 2, 1999, several days after he killed the police officer. 

Based on my extensive experience with this case, I came to the firm conclusion 

that any alien caught committing a weapons offense as defined in Section 921(a) of 

Title 18, United States Code, should be detained without benefit of bond during removal proceedings. Further, these removal proceedings could be accellerated on the 

Court docket for speedy disposition of cases involving dangerous resident aliens. 

Dangerous criminals like Bell have no business being released. They have a great 

motive to seek revenge as happened here, or to run. 

Obviously, tougher pre-trial detention and release requirements would have seriously impaired Bell’s ability to greatly harm law enforcement officers and the community. However, detention eliminates all the risk of harm and would save precious 

I.N.S. resources. For example, releasing a defendant on bond pending removal presents I.N.S. agents with the difficult task of tracking down potentially dangerous 

criminals who are motivated to kill government agents associated with their deportation proceedings. Also, the Immigration pre-trial supervision of Bell was non-existent. There was no home electronic monitoring or other meaningful intensive reporting requirements or curfew. The time of the murder was midnight on October 30, 

1999. At this time, Bell was on the street in Winchester driving a stolen car, in possession of cocaine with the intent to distribute it, and in possession of a handgun 

with extra ammunition. Further, Bell was well known to constantly display his hatred towards police and Sgt. Timbrook in particular. 

In conclusion, my narrow recommendation is that federal law be changed so aliens 

who are charged with committing weapons offenses be immediately detained and 

they should not be afforded bail pending deportation hearings. In the alternative, 

federal law should provide for a strong presumption of no bond unless and until a 

thorough backgound investigation is completed by I.N.S. agents in cooperation with 

local law enforcement. Thank you.

Mr. GEKAS. Let the record now indicate that the lady from Pennsylvania, Ms. Hart, has come to the Committee hearing as well as 

the gentleman from Massachusetts, Mr. Frank, and the gentleman 

from California, Mr. Berman. 

We will proceed with the testimony of Professor Taylor. 

Before the lady begins, we note that the gentleman, Congressman Flake, is also present. 

STATEMENT OF MARGARET H. TAYLOR, PROFESSOR OF LAW, 

WAKE FOREST UNIVERSITY SCHOOL OF LAW 

Ms. TAYLOR. Mr. Chairman, Representative Jackson Lee and distinguished Members of the Committee, I appreciate the opportunity 

to testify before you today. 

My remarks focus first on problems with mandatory detention for 

noncitizens with criminal convictions and second on the alternative 

of supervised released, and I address these issues in more detail in 

my written testimony. 

There is a central paradox that governs immigration detention. 

The key to having a fair and efficient detention policy is to pay 

more attention and devote more resources to release decisions. I 

want to stress that this point is not inconsistent with the testimony 

of Mr. Thomson. Certainly there are people who should be detained 

by the INS prior to their deportation hearing, and he gives a compelling example. By the same token, there are many, many people 

detained by the INS, some of them pursuant to statutory mandates, who should be released. So I will also give you an example. 

26

Hawa Said was the daughter of a U.S. Citizen. She immigrated 

to the United States when she was a year old. She served 30 days 

in jail for a drug conviction, and she was later detained by the INS 

pursuant to statutory mandates for 6 months, waiting for her deportation hearing. She was pregnant during part of that time. 

The argument for her release becomes even stronger when you 

consider that not only did she have a compelling claim for relief 

from removal, she also had a claim of derivative citizenship because her father naturalized while she was a minor. In fact, in the 

end, after proceedings were terminated, the State Department determined that she was a U.S. Citizen; and, again, she spent six 

times the amount in mandatory detention than she had spent for 

her underlying criminal conviction. 

I know that it is tempting to conclude that we should not have 

release decisions. The safest course, it seems, is to lock everybody 

up and not let them out until they are removed from the country. 

That is the approach that the 1996 act takes with criminal offenders, and I would like to briefly note four problems with mandatory 

detention. 

First, the INS simply doesn’t have the capacity in bed space, in 

management structure, in expertise in detention operations to incarcerate everyone that comes through the system or even everyone 

who is inadmissible or deportable on criminal grounds. 

Second, it is an enormous strain on INS and taxpayer resources 

to lock up people who do not present a risk of flight or a danger 

to the community, and it deprives the INS of much-needed flexibility to make the best use of its limited detention space when the 

stats says that nonviolent offenders, including individuals who 

have never served a day in prison for their underlying criminal 

conviction, must be incarcerated during the pendency of their removal proceedings. It is far better, as Mr. Greene suggested, to 

have a case-by-case determination in this context. 

Third, mandatory detention imposes the devastating consequence 

of detention without assessing whether someone has a viable claim 

for relief or perhaps is not even deportable, and my written testimony includes additional stories of individuals who are subject to 

mandatory detention and then succeeded in challenging their deportation. 

Finally, freedom from imprisonment lies at the heart of liberty 

protected by due process. The Supreme Court recently reminded us 

in its decision in Zadvydas v. Davis that, quote, the due process 

clause applies to all persons within the United States including 

aliens, whether their presence here is lawful, unlawful, temporary 

or permanent. 

The majority of district courts to consider the issue have concluded that the detention mandates in the Immigration and Nationality Act are unconstitutional. I am, of course, aware of studies 

suggesting that many aliens do not appear at removal hearings and 

that removal orders are seldom enforced against individuals who 

are not in INS custody, but that does not mean that everyone or 

even all criminal offenders should be detained for the reasons I 

noted above. Instead, it means that we need to pay more attention 

to the release side of the equation. The INS needs to develop an 

27

effective system of reporting and supervision for aliens in proceedings. 

It is worth noting that supervised release is woven into the fabric 

of our criminal justice system. The majority of criminal suspects 

are released pending trial. The vast majority of those who are released show up for their trial. By definition, then, most aliens who 

have been convicted of a crime and are in the midst of deportation 

proceedings have already demonstrated that they will comply with 

a supervised release program. 

I was privileged to serve on the Advisory board when the Vera 

Institute of Justice ran a 3-year demonstration project of supervised release in the immigration context. The central idea, which 

was empirically tested and proven, was that the well-developed expertise on how to operate a supervised release program in the 

criminal context can be successfully applied to immigration proceedings. 

The demonstration project had good results. The in-take process 

gave INS officers far more extensive and complete information to 

support their detention and release decisions, which by itself was 

a significant benefit of the program. Ninety-one percent of the participants subject to intensive supervision showed up at all of their 

hearings. And, finally, Vera’s study demonstrated that supervision 

is more cost effective than detention to ensure appearance at immigration hearings. 

The central message I hope to convey is that it is expensive and 

inhumane to assume that detention is the only tool in the INS enforcement arsenal that can be used to restore credibility to the immigration system. The experience of pretrial removal in the criminal context and Vera’s study showed that supervised release is an 

effective alternative. The INS hasn’t developed the capacity to do 

anything but detain in order to keep tabs on people and make sure 

they comply with the process, and that is the central failing of the 

immigration enforcement system. 

I would be happy to answer any questions that you have. Thank 

you for the opportunity to testify. 

Mr. GEKAS. We thank the witness. 

[The prepared statement of Ms. Taylor follows:]

PREPARED STATEMENT OF MARGARET H. TAYLOR

My name is Margaret Taylor. I am a Professor of Law at Wake Forest University. 

Much of my work over the past ten years has focused on INS detention policy. 

My remarks focus first on problems with mandatory detention embodied in INA 

§ 236(c), and second on the alternative of supervised release. I will conclude by noting some additional concerns closely linked to these two issues. 

I. THE PROBLEMS WITH MANDATORY DETENTION

There is a central paradox that governs immigration detention: The key to having 

a fair and efficient detention policy is to pay more attention and devote more resources to release decisions. I know that it is tempting to conclude otherwise—the 

safest course, it seems, is to lock everybody up and not let them out until they are 

removed from the country. That is the approach that the 1996 Act takes as to criminal offenders. INA § 236(c) require detention during the pendency of removal hearings for any alien inadmissible or deportable for a criminal offense; the only exception is for a single crime involving moral turpitude resulting in a term of imprisonment for less than a year. A wide array of nonviolent and minor offenses are encompassed in this mandate. The statute does not permit any consideration of whether 

28

the individual presents a risk of flight or danger to the community. Here I’ll briefly 

note four problems with the ‘‘lock’em all up’’ approach: 

First, the INS simply doesn’t have the capacity—in bed space, management structure, or expertise in detention operations—to incarcerate everyone who comes 

through the system, or even everyone who is inadmissible or deportable on criminal 

grounds. This is not a problem that the Service can outgrow. INS detention capacity 

has skyrocketed in recent years through increased reliance on state and local jails. 

This creates enormous problems of management and oversight, and has a devastating impact on INS detainees—including asylum seekers who are locked up with 

the criminal population in local jails. Additional rapid growth will only exacerbate 

these problems. 

Second, it is an unnecessary drain on INS and taxpayer resources to incarcerate 

people who do not present a risk of flight or a danger to the community. Moreover, 

it deprives the INS of much-needed flexibility to make the best use of its limited 

bed space when the governing statute requires that nonviolent offenders—including 

individuals who have never served a day in prison for their underlying criminal conviction—be detained during the pendency of their removal proceedings. 

Third, mandatory detention under INA § 236(c) is based on a preliminary assess- ment of whether the individual is inadmissible or deportable. In many instances, 

that conclusion turns out to be wrong. INS detention destroys lives, it robs U.S. citizen dependents of their only means of support, and it tears apart families. And yet, 

pursuant to the statutory mandate, these devastating consequences are imposed 

without any assessment of whether, in the end, an individual might be granted 

some form of relief or even found not to be deportable. To illustrate, consider the 

following stories of three people who were subject to mandatory detention but ultimately prevailed in contesting their deportation:

• Joe Van Eeten, a decorated Vietnam veteran, was detained by the INS for almost five months, until a district court in Oregon ruled held that his mandatory detention pursuant to INA § 236 (c) violated due process. Van Eeten 

claimed that he had been naturalized in a ceremony at Camp Pendleton, California just before being sent to Vietnam. But the INS disputed his claim to 

citizenship. Six months after he was ordered released, an immigration judge 

terminated removal proceedings against him. That decision was later upheld 

by the BIA. Were it not for the district court’s order, Van Eeten would have 

been subject to mandatory detention for the duration of the administrative 

process that, in the end, established that he was not deportable. See Van 

Eeton v. Beebe, 49 F. Supp. 2d 1186 (D. Or. 1999), appeal dismissed as moot, No. 99–35470, 2000 U.S. App. LEXIS 22741 (9th Cir. Sept. 7, 2000); Don 

Hamilton, Immigration Judge Decides Against Deporting Ex-Marine-Judge 

Michael H. Bennett Says Activist Joe Van Eeton Became a U. S. Citizen Before 

He Shipped Out to Vietnam in 1968, Portland Oregonian, Sept. 21, 1999, at 

E1 (1999 WL 5374338).

• Hawa Said immigrated to the United States at the age of one, and her father 

naturalized when she was a minor—giving her a claim to derivative citizenship. Said was put in removal proceedings and subject to mandatory detention based on a drug conviction for which she served thirty days in jail. INS 

initially sent Said—who was pregnant at the time—to a detention facility in 

San Diego, more than 2,000 miles from her home, family, and legal counsel 

in Alaska. A district court subsequently ordered her returned to Alaska, stating that she had made a prima facie case of citizenship based on her father’s 

naturalization. After six months in INS detention—six times what she had 

been required to serve for her state conviction—INS agreed to grant Said 

withholding of removal on the condition that she not pursue her claim to citizenship in immigration court. A few months after that, the U.S. State Department recognized her citizenship and issued her a passport. See Said v. Eddy, 

87 F. Supp. 2d 937, 939 (D. Alaska 2000); Said v. Eddy, No. A99-0482-CV 

(D. Alaska Aug. 9, 1999); Anthony Lewis, Cruel and Unneeded, New York 

Times, Oct. 5, 1999.

• Jodey Gravett, a decorated Vietnam veteran and likely the son of an American serviceman, was detained by the INS for more than four months before 

his immigration proceedings were ultimately terminated. Adopted by American parents from a Japanese orphanage when he was 12 years old, Gravett 

has lived in the United States for over forty years. After serving a two-month 

jail term stemming from the discovery of three marijuana plants at his home, 

Gravett was placed in removal proceedings by INS for this and another drug 

possession conviction and was subjected to mandatory detention under 

§ 236(c). A state court subsequently changed his more recent conviction and 

29

erased the previous one entirely. Based on these changes, an immigration 

judge ruled that Gravett was no longer deportable and terminated his removal proceedings. Even if his convictions had not been altered, Gravett’s immigration proceedings might have been terminated based on a claim of U.S. 

citizenship stemming from his military record in Vietnam and the citizenship 

of his father. See Leonel Sanchez, INS Moves to Deport Vietnam Vet; Legal 

Immigrant Has Felony Record, The San Diego Union Tribune, February 11, 

1998, at B7 (1998 WL 3991627); Leonel Sanchez, Deporting of Heroic Veteran 

is Blocked; Man’s Criminal Record is Amended, The San Diego Union Tribune, April 16, 1998, at B7 (1998 WL 4004476).

Finally, mandatory detention violates due process precisely because it does not 

allow an immigration judge to make custody determinations based on the facts of 

individual cases, such as those included in the stories above. Freedom from imprisonment lies at the heart of liberty protected by the Due Process clause. Foucha v. 

Louisiana, 504 U.S. 71, 80 (1992). The Supreme Court recently reminded us, in its 

decision in Zadvydas v. Davis, that ‘‘the Due Process Clause applies to all ’persons’ within the United States, including aliens, whether their presence here is lawful, 

unlawful, temporary, or permanent.’’ 121 S.Ct. 2491, 2500 (2001). Mandatory detention violates due process because it infringes on the most fundamental of liberty interests indiscriminately, without any determination of whether the individual detained poses a risk of flight or a threat to the public. Cf. United States v. Salerno, 481 U.S. 739 (1987)(deprivation of fundamental liberty interest cannot be excessive 

in relation to the government’s interest); Zadvydas, 121 S.Ct. at 2498 (‘‘strict procedural safeguards’’ and a ‘‘sufficiently strong special justification’’ must be present to 

justify detention based on dangerousness). In addition, due process requires that 

persons detained by the government must have the opportunity to contest their continued incarceration before a neutral adjudicator. See Leader v. Blackman, 744 F. 

Supp. 500 (S.D.N.Y. 1990) (striking down an earlier incarnation of mandatory detention, noting that ‘‘there is a liberty interest that is implicated when one is detained, 

which creates the right to a bail hearing’’); St. John v. McElroy, 917 F. Supp. 243 

(S.D.N.Y. 1996). The majority of district courts to consider the issue have concluded 

that detention mandates in the Immigration and Nationality Act are in fact unconstitutional. See e.g. Shurney v. INS, No. 01CV1906 (N.D. Ohio Nov. 9, 2001); available at http://www.ohnd.uscourts.gov/Clerk—s—Office/Notable—Cases/notable—

cases.html (collecting cases at footnote 2); Small v. Reno, 127 F. Supp. 2d 305 (D. 

Conn. 2000); Sharma v. Ashcroft, 158 F. Supp. 2d 519 (E.D. Pa. 2001); Welch v. 

Reno, 101 F. Supp. 2d 347 (D. Md. 2000); Vang v. Ashcroft, 149 F. Supp. 2d 1027, 

(N.D. Ill. 2001); Kim v. Schiltgen, No. C99–2257 SI, 1999 U.S. Dist. LEXIS 12511 

(N.D. Cal. Aug. 10, 1999); Martinez v. Greene, 28 F. Supp. 2d 1275 (D. Colo. 1998). 

II. SUPERVISED RELEASE AS AN ALTERNATIVE TO DETENTION

I am, of course, aware of the studies suggesting that many aliens do not appear 

at removal hearings, and that removal orders are seldom enforced against individuals who are not in INS custody. But that does not mean that everyone (or even 

all criminal offenders) should be detained, for the reasons discussed above. Instead, 

it means we need to pay more attention to the release side of the equation. The INS 

needs to develop an effective system of reporting and supervision for aliens in proceedings. 

It is worth noting that supervised release is woven into the fabric of our criminal 

justice system. The majority of criminal defendants are released subject to supervision pending trial. Appearance rates vary slightly from jurisdiction to jurisdiction, 

and across the range of criminal charges. But a recent study of felony defendants 

suggests that, on average, 76% of those who were released pending trial reported 

for all court appearances. Most of those who missed a single appearance were later 

returned to court, and only a small fraction—5%—of felony defendants released 

pending trial were considered fugitives. This data shows that we do not need to reinvent the wheel to create an effective supervision program. It also tells us that 

most aliens who have been convicted of a crime and are in the midst of deportation 

proceedings have already demonstrated that they will comply with a supervised release program. 

I was privileged to serve on the advisory board when the Vera Institute of Justice 

ran a three-year demonstration project of community supervision for people in immigration proceedings, known as the Appearance Assistance Program. The central 

idea, which was empirically tested and proven, was that the well-developed expertise on how to operate a supervised release program in the criminal context can be 

successfully applied to the immigration proceedings. The AAP intake process gave 

INS officers far more extensive and complete information to support their detention 

30

and release decisions—which by itself was a significant benefit of the program. 

Moreover, AAP intensive participants appeared in immigration court at significantly 

higher rates than the comparison group—91% showed up at all of their hearings. 

Finally, Vera’s study documented that supervision is more cost effective than detention to ensure appearance at immigration hearings. Full information on the AAP 

may be found in Sullivan, et al, Testing Community Supervision for the INS: An 

Evaluation of the Appearance Assistance Program, Final Report to the Immigration 

and Naturalization Service, August 1, 2000. The report is available on the Vera 

website, www.vera.org. 

III. RELATED CONCERNS

A. Preventive and ‘‘Symbolic’’ Detention 

Mandatory detention is closely tied to two other issues: preventive detention—

locking people up because we think they might be dangerous—and what I call ‘‘symbolic’’ detention—an idea I have developed in some of my writings. I want to briefly 

note concerns about these two issues. 

The Supreme Court in Zadvydas stressed that the Constitution imposes stringent 

limits on preventive detention, and these limits apply in the immigration context. 

121 U.S. at 2499–2502. The goal of INS detention is to effectuate removal from the 

United States. And detention loses legitimacy when it is severed from this goal. Id.

at 2504–05

For that reason, I’m concerned with a growing ‘‘symbolic’’ component of immigration detention—the idea that we need to ratchet up the level of immigration detention to signal that the government is ‘‘getting tough’’ in a particular area of immigration enforcement. Mandatory detention of all criminal offenders, regardless of the 

risk of flight or danger to the public, has a symbolic component. And the hundreds 

of post-9/11 detainees from the Middle East, who have been cleared of any possible 

involvement in terrorism but are nevertheless are being held for minor visa violations, are the most recent example of individuals who are being detained as part 

of a symbolic ‘‘crackdown.’’

Sweeping lots more aliens into INS custody is a very visible way to convince the 

general public that something is being done about a particular problem. But these 

episodic detention sweeps and the broad criminal detention mandates are of questionable utility, and are fundamentally unfair. We should not, in other words, deprive people of liberty primarily to ‘‘send a message.’’

B. Recent Rules Expanding INS Authority and Contracting IJ Review over Detention 

Decisions 

Consistent with the due process requirement for a neutral adjudicator to decide 

custody status, immigration judge jurisdiction should expand to three contexts 

where IJ’s do not at present make custody determinations: (1) detained asylum 

seekers in the expedited removal process who have passed the ‘‘credible fear’’ screen 

and are awaiting a removal hearing; (2) returning lawful permanent residents who 

are considered ‘‘applicants for admission;’’ and (3) post-order detainees who have not 

been removed within the statutory 90-day removal period. Instead, the Department 

of Justice has recently acted to contract IJ authority, and to insulate INS custody 

decisions from any time limitations or further review, via two interim rules. These 

regulations conflict with the procedures that Congress enacted in the USA-PATRIOT Act and raise serious constitutional concerns. 

First, an interim rule on custody procedures issued September 17, 2001 extends 

the time for the INS to make charging and custody determinations to 48 hours. ‘‘[I]n 

the event of an emergency or other extraordinary circumstance,’’ however, the rule 

specifies that such determinations must be made ‘‘within an additional reasonable 

period of time.’’ 66 Fed. Reg. 48334, 48335. The interim rule provides no guidance 

on how to interpret these phrases, but information from representatives of some detainees suggests that at present detainees routinely are held for weeks without 

charge. This practice conflicts with an intervening Act of Congress. The USA-PATRIOT Act established certification by the Attorney General as the only exception 

to established custody procedures, and limited the detention of a certified alien to 

a maximum of seven days before charges are initiated. The regulations must be interpreted in light of the limitations embodied in this new statute. 

Second, an interim rule issued on October 31, 2001 grants the INS authority to 

stay an IJ’s release decision in any case in which a district director ordered the 

alien held without bond or set a bond of $10,000 or more. 66 Fed. Reg. 54909 (Oct. 

31, 2001). This rule permits the INS unilaterally to retain someone in custody 

throughout the entire administrative process in any case where the original bond 

reaches the threshold amount (a factor that is within the exclusive control of INS), 

31

regardless of the charges lodged. As a practical matter, the automatic stay provision 

bypasses the important (and constitutionally required) step of an IJ bond determination. In many cases where the new rule might be invoked, hearings on custody status are now simply continued—without ever having the judge reach a decision—because all participants know that the INS can simply nullify an outcome that it does 

not like. The interim rule conflicts with the limited authority and strict time limits 

provided in USA-PATRIOT. Both regulations also raise significant constitutional 

concerns pursuant to the due process precedent discussed above. 

The central message that I hope to convey today is that it is expensive, and it 

is inhumane, to assume that detention is the only tool in the INS enforcement arsenal that can be used to ‘‘restore credibility’’ to the immigration system. The experience of pretrial supervision in the criminal context, and the Vera Institute Appearance Assistance Program, show that supervised release is an effective alternative. 

To date, the INS has failed to develop the capacity to do anything but detain in 

order to keep tabs on people in the midst of proceedings and make sure they comply 

with the process. This is a central failing of the immigration enforcement system. 

Congress has recently appropriated money to fund alternatives to INS detention, 

which is a step in the right direction. Repeal of the detention mandates—so that 

IJs again can make individualized determinations of whether a criminal offender 

presents a risk of flight or danger to others, or has a viable claim for relief that 

makes him a good candidate for release—is the next step. And IJ jurisdiction needs 

to expand, not contract, to ensure that all individuals deprived of the liberty are entitled to a bond hearing before a neutral adjudicator, as due process requires. 

I appreciate the opportunity to testify before you today, and would be happy to 

answer any questions.

Mr. GEKAS. Now it is the time for Members of the Committee to 

pose questions to the various members of the panel. We will accord 

each Member of the Committee 5 minutes for that cross-examination, and we will begin with the Chair indulging himself in such 

5 minutes. 

Mr. McElroy, I am very interested in putting on the record the 

data on Yousef from beginning to end. How did he come to the 

United States first? 

Mr. MCELROY. I don’t recall the case specifically, but I will submit that to the Committee. 

Mr. GEKAS. Well, at the time that he—well, wasn’t he detained 

in New York? 

Mr. MCELROY. Yes, he was. 

Mr. GEKAS. Do you know when that was? 

Mr. MCELROY. No, I don’t recall the date. 

Mr. GEKAS. Why was he detained? 

Mr. MCELROY. I believe it was a matter of documentation. 

Mr. GEKAS. Immigration violation you are saying? 

Mr. MCELROY. Yes. 

Mr. GEKAS. No criminal background at that juncture? 

Mr. MCELROY. No. The difficulty of achieving a criminal background is if you take a person’s fingerprints who comes from an 

area that has never been printed before, the prints are not in the 

database in the United States, nor may they be in Interpol. So saying that a person does not have a criminal record based on fingerprints is not a true picture of what exists. 

Mr. GEKAS. Then he was released from detention, is that correct? 

Mr. MCELROY. That is correct. 

Mr. GEKAS. When was that? 

Mr. MCELROY. I don’t recall the date. 

Mr. GEKAS. Well, I will need a chronology of the events with respect to Yousef. That is very important because that is an example 

32

of the system in one way or another permitting someone released 

from detention to engage in terroristic activities. 

Mr. MCELROY. Yes. I will give you the background on Mr. Yousef 

as well as Mr. Abu Mazir at the same time. 

Mr. GEKAS. Yes, I thank you for that. 

[The information referred to follows:]

GAZI IBRAHIM ABU MEZER

A86 365 223

1) 1993: Gazi Ibrahim Abu Mezer entered Canada on a student visa. His background was not checked by Canadian authorities, but those authorities later 

stated that he would likely have been admitted anyway.

2) 1993: Abu Mezer applied for U.S. Visa in Toronto and was rejected.

3) 1993–1996: Abu Mezer twice arrested in Canada for stealing checks and a misdemeanor assault.

4) Summer 1996: Abu Mezer arrested trying to cross Ross Lake in North Cascades 

National Park in Washington state. Park Ranger turned Abu Mezer over to INS 

who returned him to Canada without being charged with illegal entry.

5) Summer 1996: Six days after Ross Lake crossing attempt, Abu Mezer was arrested 65 miles west of Ross Lake, ‘‘wearing a Walkman personal stereo as he 

casually jogged into the United States’’. Abu Mezer had U.S. and Canadian 

money, but no identification. Again, he was returned to Canada without being 

charged.

6) January 14, 1997: Abu Mezer was arrested along with two others while boarding a bus in Bellingham, Washington. Abu Mezer admitted being in the United 

States illegally.

7) January 14, 1997: INS charged Abu Mezer with illegal entry and set bail at 

$15,000. Canada refused to accept Abu Mezer. Abu Mezer applied for asylum, 

claiming that he could not return to Israel stating, ‘‘I was not a member of 

Hamas, but I knew of persons who were.’’

8) INS officials said they had no information to link Abu Mezer to terrorists, and 

did not oppose a motion to reduce his bond to $5,000.

9) After his release, Abu Mezer informed the court that he no longer intended to 

seek asylum. He disappeared without attempting to redeem his bond.

10) July 30, 1997: Abu Mezer’s roommate tipped off the New York City Police Department that Abu Mezer was building pipe bombs in a Brooklyn apartment 

and planned to blow up a nearby subway station.

11) July 31, 1997: NYPD raided the apartment and arrested Abu Mezer and Lafi 

Khalil.

12) July 23, 1998: Abu Mezer was convicted of all counts related to the bombing 

plot, including Conspiracy to Use a Weapon of Mass Destruction. Lafi Khalil 

was convicted of Possession of a Fraudulent Alien Registration Card and acquitted on the more serious charges.

13) March 1, 1999: Abu Mezer sentenced to life in prison after a U.S. District Judge 

declared him a terrorist risk.

RAMZI AHMED YOUSEF

February 1993: Under the influence of Sheik Omar Abdel Rahman, Ramzi Ahmed 

Yousef organizes Mohammed Salameh and three others in plotting and carrying out 

a bombing at New York’s World Trade Center that caused mass destruction, six 

deaths and more than a thousand wounded. The group is comprised of Egyptians 

and Palestinians. Yousef, travelling on an Iraqi passport, entered the United States 

in September 1992 without a visa, but was allowed to enter the country provisionally after asking for asylum, because of lack of detention space. His companion, a 

Palestinian named Ahmad Ajaj, who arrived on a fake Swedish passport, was arrested and found to have bombmaking videos and manuals in his luggage. Salameh 

entered the United States in 1988 on a Jordanian passport and a visitors visa 

33

issued in Amman, Jordan. He applied for legal residence status [presumably asylee 

status], was turned down, and continued to be in the country on appeal of that decision. Abdel Rahman, an Egyptian religious leader charged with inciting a 1989 riot 

in Egypt, obtained a visa in Khartoum, Sudan which had no automated lookout system that would have identified him as a security threat. He entered as a tourist 

and applied for political asylum and received legal residence. An immigration judge 

ordered him deported in March, 1993, but he was still in the country four months 

later when he is arrested for terrorist acts. 

Chronology: 

September 1, 1992: Arrived in the US at JFKIA. Presented Iraqi passport with 

no visa. Detained, fingerprinted, and released to file an asylum claim. (Consistent 

with general INS detention/parole policies at the time) 

November 9, 1992: Filed police report with Jersey City Police Department claiming that he had lost his passport. 

December 31, 1992: Applied for replacement passport at Pakistani consulate in 

New York using photocopies of one Abdul Basit. Consulate suspected photocopies 

and denied him a new passport, instead issuing a six month ‘‘temporary’’ passport. 

February 26, 1993: Departed for Pakistan using fake ‘‘temporary’’ Pakistani passport. That same day, Mr. Yousef’s co-conspirators set off the WTC bomb.

Mr. GEKAS. Mr. Thomson, on the question of Bell, did you say 

that the first bond that was imposed upon him was $6,500 and 

then reduced to $3,500? 

Mr. THOMSON. That is correct, Mr. Chairman. 

Mr. GEKAS. Was this after the murder was committed? 

Mr. THOMSON. No, sir. It was after he was taken into custody by 

the agents. He asked for a redetermination of his bail before an immigration judge. 

Mr. GEKAS. So it was after he was released on the lower bond 

that he committed the murder? 

Mr. THOMSON. That is correct. 

Mr. GEKAS. And the bond, of course, was stated at the discretion 

of the judge at that point? There were no guidelines for him, were 

there, with respect to the type of attention to which Bell had been 

incarcerated? 

Mr. THOMSON. From the best what we can tell from the records, 

Mr. Chairman, what we did after the murder was we issued subpoenas for all of the INS files, including the lawyers’ notes from 

court representing the agency. They opposed the reduction in bond, 

the lawyers did, and the judge did it over their objection. There 

was some testimony taken and cross-examination regarding Mr. 

Bell’s request for bond, such as his connections to the community, 

his family, how long he had been in the country and that sort of 

thing, routine questions you would ask in a bond hearing. 

Mr. GEKAS. Professor Taylor says that that is not uncommon or 

it is no different from an American citizen being charged with 

crimes and being given bond on the basis of connections to the community, relatives, et cetera. Was there anything other than the 

alien status to make it different in this case? 

Mr. THOMSON. Mr. Chairman, my position would be that, as Mr. 

McElroy stated, in the alien’s native country, they do not have the 

sophisticated method of tracking criminal behavior that we have 

developed in the United States through the printouts of NCICs. In 

Virginia, we call it a VCIN. 

As a matter of fact, as I reviewed the record of this case for this 

testimony here today, I see that the Jamaican embassy certified no 

criminal history from Jamaica on Mr. Bell, when, in fact, after we 

34

got going on the murder case, we found out by sending an agent 

there that he had been convicted of a crime in Jamaica. 

So I guess my position is that, for a normal bond hearing for an 

American citizen who has been here for a substantial period of 

time, they would have records that we could go to. If you are born 

in this country, if the crime is in Winchester and you spent the majority of your life in California or Florida, I could find out pretty 

much everything about you for that bond hearing; and we routinely 

do that. But the fact of the matter is that a lot of these folks are 

coming in here from countries and we do not have access to their 

criminal history information. 

Mr. GEKAS. The time of the Chair has expired. 

We now allocate 5 minutes to the lady from Texas, Ranking 

Member Ms. Lee. 

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

I again emphasize the importance of this hearing because I hope 

that it will delineate the need for an immigration policy covering 

a myriad of issues, and hopefully as we all listen to the testimony 

we can find common agreement even though this is not a hearing 

on 245(i). 

The point of knowing that there are distinctions in what we are 

talking about, bad actors, if you will, and how we find bad actors 

and detain them versus an immigration policy that is necessary to 

comport with the values that we have in this country—245(i), for 

example, happens to deal with reuniting people and providing access to immigration or legal immigration. 

In this instance, many of the witnesses I agree with. Mr. Thomson, I truly agree that anyone on a weapons charge, it baffles my 

mind why they would have been released and certainly, unfortunately, they are not supervised, which is horrific. 

I have a series of questions for you. My time is limited, so let 

me start with Professor Taylor. 

If you can detail briefly but in more detail the Vera project and 

how it started and its success rate. 

Ms. TAYLOR. Yes. I will detail it based on my impressions as an 

advisory board member. 

The study was turned over to the INS, and I refer the entire 

study to you. It was, in fact, right in Mr. McElroy’s district and it 

was a contact with the INS, as I said, to test supervised release 

as an alternative to INS detention. There were some changes in the 

law as the project was being set up which changed as the project 

was going, the populations that it was supervising, but it had good 

results for every part of the population that it supervised. 

Again, one thing I want to stress is that the program, because 

it had intake, you get more complete information about a person, 

you verify the addresses. When they say they have a relative, you 

find out whether they have a relative. When they say they live at 

such and such address, you go to that address and verify that information. And that, in fact, helps INS officers make better detention——

Ms. JACKSON LEE. Do you know the percentages of return, meaning how many showed up for the hearings? Did you give us that 

number? 

35

Ms. TAYLOR. In my testimony I have the general number which 

I believe was 91 percent. It varied slightly from category to category, but it was statistically significant in each component of people supervised. 

Ms. JACKSON LEE. And there was criteria—was any of them individuals with violent backgrounds, to your knowledge? 

Ms. TAYLOR. When the project started, there was a very small 

period of time that the project operated—they had a small number 

of criminal offenders that were in the project. Then the detention 

mandates of the 1996 act took effect in 1998, and that kind of shut 

off that population to be in the program. 

As the program was originally designed, the Vera Institute suggested that the criminal offenders would be amenable to supervision, those who were not obviously a risk of flight or a danger to 

the public, in part because, as I said before, they—most of them 

had successfully completed supervision as part of the criminal process that they had been through and—— Ms. JACKSON LEE. There should be criteria you are saying. 

Ms. TAYLOR. Yes. You could screen nonviolent versus violent 

criminals——

Ms. JACKSON LEE. A pregnant detainee would certainly fall in 

that category, and certainly she appeared not to be a threat. I just 

want to focus the—— Ms. TAYLOR. The example I gave was someone who did fall into 

the detention mandates but was someone who didn’t present a 

threat, and I think under the detention mandates there are people 

who are not a threat to the public who are being detained. 

Ms. JACKSON LEE. Thank you very much. 

Mr. Thomson, let me then pose my question to you. I absolutely 

agree that some who had a weapons charge—I understand that he 

had the weapons charge as he went in to be detained. It was a preceding weapons charge for Mr. Bell, is that correct? 

Mr. THOMSON. It was the predicate conviction for the detention 

of him by INS agents. 

Ms. JACKSON LEE. All right. With that in mind then, can you see 

the potential of a criteria which goes to violent criminals, weapons 

charges, and can you see the distinction and would you be open to 

the distinction that talks about a pregnant detainee, as someone 

whose parent is naturalized? Are you making that distinction here 

that Mr. Bell falls in a different category? 

Mr. THOMSON. Yes, ma’am, I am; and that is why my testimony 

is confined to that narrow issue. In other words, we view this as 

a loophole, if you will, in the law, that someone who would be convicted of a weapons offense or even taken into custody for a weapons offense would not be detained. 

Ms. JACKSON LEE. I thank you for that. 

Mr. Greene, let me ask you how can we work better with criteria 

to enhance the discretionary aspect of detainees? Because I don’t 

know where you are going to put everyone, and I think the pregnant detainee is an example of a problem, as is Mr. Bell an example of a problem. 

Mr. GREENE. Thank you, ma’am. 

The situation with the carrying a concealed weapon conviction is 

now within the category of a mandatory detention. It was not in 

36

1998. So the sort of situation that we—this sad, sad case is one 

that is unlikely to happen under the current set of circumstances. 

But the problem of the larger set of criteria is difficult because just 

in general it is difficult to predict who is likely to offend again once 

they are released. 

In response to some research that we did pursuant to a subpoena 

from this Committee, we looked at the recidivism rates, as you 

know, and we also looked in sort of the larger context of how that 

stacked up against the national recidivism rate for people who are 

likely to offend again, and the percentages were not really outside 

of or dramatically either higher or lower than the national recidivism rate. 

One of the purposes of the policy review, as I spoke to you earlier, was to take advantage of all of the literature and all of the 

research that has been done to try to refine our predictive process 

better. Because I agree with other members of this panel that classification that is being able to determine the likelihood that a person will offend or the likelihood that a person will show up for future immigration hearings is very critical. 

One of the difficulties in terms of the data is that, in the data 

sets that we have looked at, people are more likely to show up for 

immigration hearings than they are to report for removal, and that 

becomes one of the difficulties for us in terms of making the decision to detain or not. We would be likely in some cases to detain 

a person even where there are some predictive factors that they 

will show up for a hearing based on our experience as an agency 

that once they get the final order of removal they will simply abscond. 

Mr. GEKAS. The time of the lady has expired. 

We now turn to the gentleman from Utah, Mr. Cannon, for 5 

minutes. 

Mr. CANNON. Thank you, Mr. Chairman. 

I thank the witnesses for their testimony and being with us here. 

It has been enlightening. I have a question for Mr. Greene, for Mr. 

McElroy and Ms. Taylor if you would like to. 

I supported exploring alternatives to detention to enable the Government to better focus our detention resources on those who must 

be detained and release some of the nonviolent asylum seekers and 

possibly some other long-term immigration detainees who lack family members, sponsors, that sort of thing, to faith- and communitybased organizations who screen them for community ties or link 

them to necessary services and help assure their appearance at 

court hearings. 

I asked Ms. Peggy Philbin, the Active Director of the Executive 

Office for Immigration Review at the INS, about alternatives to detention as part of this Subcommittee’s INS oversight hearings on 

May 15, 2001, and she gave some very positive responses about the 

promise of using these alternatives to greater effect. 

As you may be aware, an alternative to the detention pilot program has been tested in three sites with a success rate of over 93 

percent of participants appearing at all of their hearings and at a 

net savings of $4,500, $4,600 per person. Additional funding was 

made available in the fiscal year 2002 Commerce, Justice, State appropriations bill to expand these pilot programs. 

37

Do you have any experience with these alternatives to detention 

programs, and do you believe that better utilization of such alternatives with nongovernmental organizations could be part of the 

solution to improving on appearance rates and the unwitting release of high-risk detainees by the INS? 

Mr. MCELROY. Is that for me, Congressman? I would like it to 

be known for the record that with regard to the Vera contract, I 

was unable to get a copy of the contract to read the list of the 

deliverables. I spent significant time in the Government as a contracting officer and I wanted to make sure that the contract was 

properly let. 

The concept of having people appear for hearings as a use of resources makes sense right up until the point that at the hearing— or at a hearing, you don’t get the benefit you want. We have heard 

several statistics about a 90 percent show rate to hearings, but we 

haven’t heard a statistic about people who have been denied a benefit and whether or not they presented themselves to be removed 

from the United States. 

So, I had—when I was unable to receive a copy of the Vera contract, I called the Office of the Inspector General and advised them 

that I thought that this was a $6 million waste of the Government’s funds because they were building a model that was so 

small, comparatively speaking, to the 200,000-person docket that I 

administrate, that the sampling group would pick and choose the 

people that they have and come in and build the criteria, you could 

almost ensure success. But the Government, if you were—— Mr. CANNON. Let me interject. Are you going to get a copy of that 

contract and take a look at it with specificity so you can draw those 

conclusions based upon consideration of the actual contract? 

Mr. MCELROY. The action of the inspector general approximately 

a year after I turned in the complaint was to come to me and ask 

me, now that I was administrating the contract, I considered it a 

dead issue. I will not be seeking the contract. 

Mr. CANNON. I didn’t understand the timing of the attempt to 

seek the contract. So you have been through this process with the 

inspector general. Did he report back? 

Mr. MCELROY. The inspector general did not report back to me. 

The inspector general sent an audit team up not to look at the veracity of my complaint, not to look at how it was illogical in its application or look at how disparately—the model could never fit into 

the New York model with 200,000 cases to oversee. What they did 

was they wanted to see how my administration of the contract was. 

[NOTE: The Vera Contract, submitted for the Hearing Record, is 

not reprinted here but is on file with the House Judiciary Committee.] 

Mr. CANNON. So we haven’t joined the issue with any kind of review as to whether the thing would work or not. In other words, 

you raised some concerns; those weren’t joined by the IG and so we 

have never really—— Mr. MCELROY. They are never joined by the OIG. I submitted a 

rebuttal to every report, that Vera report. I never heard a final rebuttal of it. I look forward to using the concept of alternative resources; however, this was not the way to do it and my issues were 

never addressed. This was a done deal and there was a proclamaVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
38

tion of victory afterwards, without any tangible results being seen 

to surface. 

Mr. GEKAS. The time of the gentleman has expired. We turn to 

the lady from California Ms. Lofgren for a period of 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. It makes me appreciate the first-come/first-testify rule. And I would like to explore 

some of these issues. You know, I think all of us in this post-September 11th world are concerned that we are doing everything we 

need to do to make sure that our country is safe from those who 

would harm us. And I think that is absolutely not only understandable but totally appropriate and necessary for us in the Government, and therefore this hearing is especially useful. 

However, having said that, I think it is worth noting that of the 

19 people who were on the flights that caused such damage, three 

had overstayed their visas. So there is obviously a problem elsewhere in the system, which is reviewing who is getting visas and 

making sure that we know who people are before they are brought 

in, and making sure that the information is shared in an appropriate way. 

I frankly think the PATRIOT Act will go a long ways toward 

making sure that our agencies that are collecting intelligence information get that information to the agencies in charge of immigration and consular affairs. 

It is important that we make distinctions. I think the idea that 

every single person who has overstayed their visa or had a violation of some sort is going to be incarcerated is impossible to do. 

That is millions of people. If we were to spend all our money doing 

that, we wouldn’t have enough money to do the enforcement efforts 

and other things that we need to do. 

One of the particular concerns I have has to do with the policy 

relative to asylum seekers. That is so broad that I think not only 

does it serve us poorly as a Nation but also sometimes inflicts injustice. 

I want to raise a particular issue which I only recently raised 

with the Commissioner and that has to do with young men who 

have been in custody now for quite some time. You know, sometimes you use the phrase, well, he is such a Boy Scout. These really 

are Boy Scouts; four Boy Scouts who came this summer to the 

International Boy Scout Jamboree. They left the jamboree to hitchhike down to see parents in this area. They are teenagers, aged 14 

to 17. Then they applied for political asylum. They had valid visitors’ visas. They have been incarcerated since July, and they are 

Boy Scouts. 

I guess the question in my mind is: What are we doing here? I 

mean, that we have got Boy Scouts locked up and their visas don’t 

even expire until January, and when we are releasing—apparently 

no longer releasing people with weapons charges, and I would 

agree that is a very good indicator of who ought not to be released. 

Can you address that, Mr. Greene? I didn’t talk to you about it, but 

I did alert the commissioner to this question. 

Mr. GREENE. Yes, ma’am. Thank you. I have—I have some information with respect to this case and I would be able to provide you 

fuller information for the record if the answer I give you now 

doesn’t suffice. These four young men are in INS custody in a shelVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
39

tered-care facility. We are sort of gauging and making decisions 

about the conditions under which they are in our custody based on 

the circumstances of their case. So, to discourage any impressions 

that might have been left with the Members of the Committee, 

these are not young men who are in jail by any means. 

Ms. LOFGREN. It is a locked facility, is it not? 

Mr. GREENE. Yes, it is. It is a secure facility. It is a shelteredcare facility, it is not a jail. 

Ms. LOFGREN. I would like to point out, having been in local government for 14 years, locked facilities are penal in nature. 

Mr. GREENE. Yes, ma’am. I would only say, though, that even in 

the local and State system there are juvenile holding facilities that 

are distinct. 

Ms. LOFGREN. The point I am trying to make, I would like further information; I think it is an embarrassment to the United 

States that the Boy Scouts are treated in such a manner. It really 

goes to the distinction how we make judgments about who is dangerous and who isn’t and whether or not it is appropriate to say, 

broadbrush, every person who feels they have been persecuted who 

is here is going to be locked up whether they have—you know, they 

are pregnant, whether they are a Boy Scout who is 15 years old. 

What are the criteria to use that? I realize Congress actually created this problem, and how unsatisfactory are the words ‘‘I told you 

so’’ that these issues would arise. Do you have any——

Mr. GREENE. I would only add to your concern, because it is a 

concern of course that we have, juvenile detention raises a whole 

variety of issues over and above those that we have to address in 

detention decisions about adults. But as you know, in many cases 

our decision to keep juveniles in a sheltered-care facility or under 

some sort of supervision is driven as much by concerns for the welfare of the children, of the juveniles, as it is for our concerns about 

security of the public at large. 

Ms. LOFGREN. My time is up. I would just ask when you report 

further on this, I think the case of Flores v. Reno does really indicate a different approach to juveniles than you are outlining to the 

Committee today. 

Mr. GEKAS. We thank the lady. We turn to the gentleman from 

California, Mr. Gallegly. 

Mr. GALLEGLY. Thank you, Mr. Chairman. 

Mr. McElroy, good to see you again. I appreciated your comments. I would concur, I thought we had a very candid visit in New 

York. I think it is only appropriate that I say that the second part 

of that trip to Miami I don’t think was treated quite as candidly. 

In fact, not only were we given rose glasses there, but we were 

given dark glasses to cover the rose glasses just for fear there may 

be some level of truth that would creep through. I think that is a 

matter of public record. 

Mr. McElroy, you mentioned on our trip—and you correct me if 

I am wrong, things have changed somewhat as you have said in 

your testimony earlier—however, at the time that we visited New 

York and Kennedy—I mean New York and Miami, the numbers 

that we were given as it related to those that were classified as low 

flight risk and released, would you correct me, if I am wrong, that 

40

those that actually showed up for their hearing that were considered low flight risk was only 6 or 7 percent at the time? 

Mr. MCELROY. Sir, that percentage only relates to people who 

were found with credible fear. The expanse of the universe of immigration when I mentioned before about having a nondetained docket of 200,000 cases, the no-show rate for those cases ranges between 93 and 80 percent of nonappearance. 

Mr. GALLEGLY. Which means that literally 10 or 15 percent probably shows up. Doesn’t that make the argument for the purpose of 

a detention—or why even process them anyway? 

Mr. MCELROY. Well, I am not going to make the argument for 

or against detention. I am going to state the facts, and the laws 

will play out as they will. But I can say with a docket of 200,000 

people to administrate, that in my period in an executive position 

since 1991, I have seen the rate fluctuate between 93 and 98 percent that they do not show. The figure that I mentioned before had 

to do with individuals that were indicated to have a credible fear. 

Mr. GALLEGLY. I still think the thing that is mind-boggling to me 

is that anyone that is released and considered a low flight risk, 

with only 1 out of 10 on a best-case basis ever showing and the 

other 90 percent disappearing into the landscape, that would intimate to me that the system is broken. 

Mr. MCELROY. It would indicate certainly, as you said before, 

that the people should have been detained to begin with. However, 

when you go back to the resources that I mentioned and interior 

enforcement which would be the area that would cover abscondees, 

we have 180 agents that cover the 14 southern-most counties of 

New York and that is a population base of 12 million people in 

which the demographers guesstimate that there are between 

300,000 and 750,000 illegals. 

Mr. GALLEGLY. Given those numbers, would it be a reasonable 

assessment that there is little or no enforcement interior? 

Mr. MCELROY. Yes. 

Mr. GALLEGLY. Professor Taylor, I listened to your testimony 

about the reason that we shouldn’t detain and so on and so forth. 

I am sure there are instances where that takes place. But were you 

aware of a GAO report recently that showed that over 40 percent 

of those that came into this country that were declaring asylum 

and had a credible risk after being here 3 years—because that is 

when the report took place—40 percent had never filed a claim for 

asylum? 

And what do you—how do you feel—do you feel that there should 

be no detention for folks that just disappear into the landscape, 

just because they say I have credible fear? Are you aware of the 

fact that 40 percent, according to GAO, never even filed a claim 

once they got their ‘‘home free’’ card? 

Ms. TAYLOR. I am not aware of that particular study. I am aware 

of the high rates of failure to appear. My central message is I think 

that you are right, the system is broken. And the answer, though, 

is to get a range of options across a range of cases; that when it 

is an either/or, you detain prehearing for months and months and 

months and months and then the person has relief, that is a problem as well. And that in fact, from other systems we can borrow 

41

other solutions that can build credibility without trying to use the 

heavy-handed detention in every case. 

Mr. GALLEGLY. Thank you, Professor Taylor. 

Mr. Greene, very quickly, I have the yellow light. Based on your 

assessment of the current national situation, being sympathetic to 

the issues that Professor Taylor has made a point of, would you say 

that we need or do not need additional detention space, or do we 

need significant or an insignificant amount of additional detention 

space in—— Mr. GREENE. Yes, sir. We are doing two things. First of all, the 

Congress has provided for additional money for detention space for 

this fiscal year, and for that we are grateful because we think that 

is——

Mr. GALLEGLY. How much do we need? 

Mr. GREENE. You provided us with 31 million. 

Mr. GALLEGLY. How many beds do you need? 

Mr. GREENE. I will have to get back to you. I don’t know. 

[The information referred to follows:]

RESPONSE OF TIM HAUGH TO QUESTION FROM REPRESENTATIVE GALLEGLY

In accordance with the Administration’s 2003 budget, 21,309 beds are needed by 

the INS to detain aliens.

Mr. GEKAS. Is the lady from Pennsylvania ready to pose questions? Then I will defer to the gentleman from Massachusetts, Mr. 

Frank. The other Members would be wise to repair to the floor. 

Mr. FRANK. Mr. Thomson, let me say that I agree with you that 

we should be giving special attention to the problems of people who 

are here illegally and using guns. That is one reason why we are 

so disappointed that Attorney General Ashcroft decided to show leniency in one respect and one respect only toward people in the 

post-September 11th sweep, and that is to decide that he couldn’t 

possibly see whether or not they bought guns when they shouldn’t 

have. Regardless of whether or not he is right that that is what the 

law says, if he is right do you think we should amend the law so 

that the gun registration system that we have got under the Brady 

bill would be used to check to see whether people in that category 

have bought guns? 

Mr. THOMSON. One thing that we have to bear in mind is Virginia has very liberal——

Mr. FRANK. It is a simple straightforward question. Do you think 

that the Attorney General should have the authority to check that 

registry to see whether people who are here illegally might have 

tried to buy guns? 

Mr. THOMSON. Yes. 

Mr. FRANK. I appreciate that. 

Mr. THOMSON. I would like to add something to that. 

Mr. FRANK. I only have 5 minutes so that is really all I needed 

at this point. 

I did want to ask Mr. Greene, I have a question, we are talking 

about detention in general and it again has to do with the post 

September 11th. There is a question in my mind. I do understand 

if people are subject to a detention order or they are in removal 

proceedings, if they are in removal proceedings subjected to a removal order, yes, they can be detained. What is the law, what is 

42

the practice with regard to people who are here legally, or at least 

against whom there is no charge that they are here illegally? Are 

there a number of those people in detention now, and what is the 

predicate for detaining them, particularly beyond 7 days? 

We have had confusion about this, because in the law we said 

up to 7 days. Let me ask you this: Can you, in the INS’s opinion, 

legally detain someone who is an alien but who is here legally for 

more than 7 days, absent some suspicion; or what is the story? 

Mr. GREENE. That is not our position, Congressman. The people 

who are in detention now are in detention because we are charging 

them with specific violations of the immigration law. There is no 

one that we are—— Mr. FRANK. So no one can be detained for more than 7 days, no 

noncitizen without a charge? 

Mr. GREENE. And those 7 days are days which allow us to——

Mr. FRANK. I understand that. Next point I want to make from 

this—I am glad the gentleman from California raised this. Understand I am sympathetic to much of what you say, except for one 

point when you say, well, we don’t have enough space, we don’t 

have enough that. We are a very rich country. We have enough 

space to lock up people that ought to be locked up if they are a 

danger. Lack of space, lack of administration law judges, lack of 

physical resources, ought not to enter into the public policy. And 

I think Congress is much more at fault here than the Immigration 

Service. 

I don’t think we should necessarily detain everybody. I do believe 

that we are a rich enough country we ought to be using our resources so that important policy decisions, either about people’s liberty or about freedom or about safety of the public, should not be 

driven by resource considerations. If we don’t have enough 

bedspace, et cetera, let’s do it. Part of that has to do with liberty. 

One of the reasons we get complaints about detention is that people are detained for inordinately long periods of time, waiting for 

their adjudication. If we simply did our job as Members of Congress 

and appropriated enough funds so that we had decent holding facilities and appropriate judges, et cetera, and the detention period—it doesn’t take a long time to litigate these cases. Mr. Greene, 

what is the average time, once the case gets before the judge, that 

it is litigated? 

Mr. GREENE. Thirteen or 14 days. 

Mr. FRANK. We are not talking about month-long trials. So that 

is, I think, the problem. If we were in fact to appropriate the resources so that we had adequate facilities for holding pregnant 

women or young people, if we had enough judges, if we had enough 

all these things, then we would get—and there would be some 

tough choices. There are some tough choices. 

Mr. Thomson, I would say this. You stressed the fact that it was 

a gun. I would stress one of the things, that the fact that this is 

already in the appeal stage, seems to me once you have been convicted, I think there is a very very heavy burden that we are going 

to let you walk away. I think the likelihood of something being 

overturned on appeal is sufficiently small, so that over and above 

the question of the gun, that is the way I would go. 

Mr. Chairman, so we can all get to vote, that is enough for me. 

43

Mr. GEKAS. Thank you, Mr. Frank. We will yield to the gentleman from California for one question. Then we can adjourn the 

hearing. 

Mr. BERMAN. Thank you, Mr. Chairman. I just want to—Mr. 

Greene, in response to Mr. Frank’s first question to you. There 

have been all these reports about large numbers of people since 

September 11th being detained. There have been issues of who are 

they, where are they, what are the charges? Are you saying that 

there is no one in detention at the present time for longer than 7 

days unless they have been indicted or charged with a violation of 

immigration laws? 

Mr. GREENE. I can only speak for those people who are in INS 

custody, sir. And for those people who are in INS custody, the 460 

who are currently in INS custody for events arising out of the terrorist attacks, they are charged with violations of the immigration 

law and we are pursuing their case before immigration judges in 

the manner that is consistent with our outstanding law and regulations. 

Mr. BERMAN. And where else would people be detained besides——

Mr. GREENE. You know, the Marshal Service would hold people 

who are being held for material witnesses or who are separately 

charged with the violations of the Title 18 Code. 

Mr. GEKAS. We thank the gentleman. 

Mr. MCELROY. Could I address something that the Congressman 

said, that would only take about a minute and a half? 

Mr. GEKAS. Proceed. 

Mr. MCELROY. Congressman Frank, you brought up the issue of 

judges and the timeliness of the disposition of the case. The judges 

of the Immigration Court of Review are not part of the Immigration Service. However, their actions are interlinked with the Immigration Service as far as its resources of beds and the use of offices. 

I think that what we failed to bring up is that there should be 

some sort of management accountability inasmuch as they do work 

for the Attorney General of the United States. There should be an 

issue of consideration of——

Mr. FRANK. I appreciate that, Mr. McElroy. I will tell you, in the 

current situation if you try to get the Attorney General to do something you would probably have greater luck than I would. 

Mr. MCELROY. I will try my best. Thank you. 

Mr. GEKAS. Without objection, we offer into the record the testimony of Bishop Thomas Wenski, an Auxiliary Bishop of Miami, 

and the statement of John Conyers, Jr., the Ranking Member of 

the Judiciary Committee. 

Mr. GEKAS. We thank the Members for their indulgence and for 

their testimony. I exercise the discretion of the chair and adjourn 

this hearing. Thank you very much. 

[Whereupon, at 3:23 p.m., the Subcommittee was adjourned.] 

(45)

A P P E N D I X 

STATEMENTS SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Thank you, Mr. Chairman for holding this timely oversight hearing on INS detention and release policies. I say timely not just in light of September 11th but also 

at a time where the Subcommittee is reviewing the overall structure and function 

of the INS with respect to the nation’s immigration system. 

The INS is charged with both facilitating legal immigration and enforcing the nation’s laws to prevent illegal immigration. That balance should be kept in mind as 

we explore possible changes to INS policies. It can be both tempting and comforting 

to err on the side of shutting all our borders tight and locking up all those we think 

might be dangerous. That is not the constitutional bedrock the country was built 

on nor the strength of our nation. However, it is the obligation and right of the nation to protect its citizens and its sovereign rights. 

This delicate balance can be seen in recent decisions by the Supreme Court who 

appear to be moving toward a higher degree of protection of civil liberties for noncitizens while the Attorney General and the President are seeking additional power 

to detain aliens who they think might be dangerous. Under the new Patriot Act, 

the Attorney General only has to certify that an alien is likely to engage in or support a bad act and the alien is subject to mandatory detention. This detention would 

be mandatory even for aliens who have been granted asylum. This could present 

problems. If detainees are not allowed an opportunity to contest their likelihood of 

engaging in terrorist activity, due process problems seem certain to arise. 

These issues of due process and proper balance arise in the area of mandatory 

detention and the rights of asylum seekers. The provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) require mandatory 

detention of most criminal and certain categories of non-criminal aliens and asylum 

seekers taking away the INS’s discretion to release these groups. But this has 

caused more practical problems creating the issue of detention space. Where do we 

house all of these people? And do we want to if they don’t pose a credible threat 

to national security, are a danger to the community or a risk of flight? 

We will hear today testimony from the INS that from Fiscal Year (FY) 1994 to 

FY 2001, the average daily detention population has more than triple from 5,532 

to 19,533. And in FY 2000 alone, the INS admitted more than 188,000 aliens into 

detention. Surely, we cannot continue to detain people at that rate. The New York 

District model purports to have the answer. In the New York District, the number 

of inadmissible aliens arriving at JFK dropped 63% from FY 1992 to FY 1999. The 

number of asylum applications dropped 91% in that same period. This occurred 

while the passenger traffic increase 18% at JFK. The way the New York model does 

it is by detaining all aliens who are inadmissible for fraud or document-related reasons. Is this an applicable model throughout the nation? And do we have enough 

beds to house all these people? And do we want to? 

We do want to stop the types of incidents that occurred in Virginia in the Bell 

case as we will hear from Commonwealth Attorney, Paul H. Thompson. Something 

must be done to prohibit anyone, alien or not, who has a criminal history and is 

a danger to the community from having uninhibited freedom. Another possible option comes from INS detention policy expert, Professor Margaret Taylor, who suggests the concept of ‘‘supervised release’’ as an option to detention. This option was 

tested from 1997 to 2000 in New York at the request of the INS on noncitizens including asylum seekers, individuals facing removal as a result of a criminal conviction, and undocumented workers apprehended at work sites. The project entailed 

answering the question of what type and what level of supervision will increase peoVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00049 Fmt 6601 Sfmt 6621 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
46

ple’s rate of appearance in court and compliance with immigration law rulings. Professor Taylor will discuss the results. 

Mr. Chairman, I want to reiterate that we are a nation of immigrants, and a 

strong one at that. Therefore it is crucial that we seek a balance in our immigration 

laws addressing due process concerns, the reality of detention space and the need 

to protect our nation and its citizens. 

Thank you, Mr. Chairman.


Conyers1A.eps
47


Conyers1B.eps
48

1 National Conference of Catholic Bishops, ‘‘Resolution on the Pastoral Concern of the Church 

for People on the Move,’’ November 11, 1976, as quoted in One Family Under God, NCCB Committee on Migration, September, 1995, p.7

PREPARED STATEMENT OF BISHOP THOMAS WENSKI

I am Bishop Thomas Wenski, Auxiliary Bishop of Miami, Florida, and chairman 

of the United States Conference of Catholic Bishops’ Committee on Migration. 

Thank you for this opportunity to submit testimony to you today on the vital topic 

of the Department of Justice immigration detention policies. 

Mr. Chairman, concern for the immigrant and the experience of immigration are 

both deeply imbedded in Church teaching. The task of welcoming immigrants, refugees, and displaced persons into full participation in the Church and society with 

equal rights and duties has long been an integral part of the Roman Catholic faith 

tradition. 

The experience of the Church in the United States has provided the U.S. bishops 

with a special sensitivity to newcomers in our midst. Arguably no other institution 

in American life has had as much experience dealing with the integration of newcomers as the Catholic Church, especially through her parishes and schools. Since 

1976, the bishops have been clear in their affirmation of the Church’s solicitude for 

newcomers:

The Church, the People of God, is required by the Gospel and by its long tradition to promote and defend the human rights and dignity of people on the move, 

to advocate social remedies to their problems and to foster opportunities for 

their spiritual growth.1

It is with these values in mind that I address to you my concerns and the concerns of the U.S. Catholic Bishops regarding the immigration detention policies of 

the Immigration and Naturalization Service (INS). The United States Conference of 

Catholic Bishops supports enactment of legislation that would reduce the number 

of the instances where aliens are held in Immigration and Naturalization Service 

(INS) detention and improve the manner in which detained aliens are treated. 

While the Church has long acknowledged the right and duty of the government to 

safeguard its citizens, and understands that detention is sometimes necessary to fulfilling this obligation, we have serious concerns about some of the INS’s current 

practices and interpretations regarding detention. I appreciate the opportunity to 

submit this testimony outlining the following five areas of particular concern to us, 

and our recommendations for responding to these concerns:

• Mandatory Detention. We support legislation that would restore discretion to 

the Attorney General to release from detention individuals who are not a danger to the community or a flight risk, but who are currently mandatorily detained.

• Alternatives to Detention. We support continued funding and expansion of ‘‘Alternatives to Detention’’ programs.

• Legal Orientation Presentations. We support continued funding and expansion 

of legal orientation presentations to INS detainees.


Conyers1C.eps
49

• Unaccompanied Minors in INS Detention. We support passage of legislation 

that would provide clear guidelines for the standard of care of unaccompanied 

alien minors.

• Interim INS Regulations on Detention. We urge Congress to hold the Department of Justice accountable when issuing regulations implementing statutes 

and Supreme Court decisions on INS detention.

These concerns span both long-standing INS detention policies and those which 

have been put in place since September 11, 2001. Each concern and recommendation is discussed in further detail below. In addition, Mr. Chairman, I would like 

to submit into the record an editorial published in the Miami Herald on December 

13, 2001, in which I addressed similar concerns. 

MANDATORY DETENTION

Mr. Chairman, as you know, the number of people being detained by the INS has 

risen dramatically in recent years, making INS detainees the fastest growing prison 

population in the country. The INS’ detention budget is now over $1 billion a year. 

More than 20,000 persons are currently detained by the INS, and the number is 

growing. Sixty percent of these detainees are held in local and county jails. The rest 

are detained in INS facilities, Bureau of Prisons facilities, and private facilities. 

A majority of the aliens in INS detention are being held pursuant to laws enacted 

in 1996 mandating that the Immigration and Naturalization Service detain them. 

The remaining detainees are being detained by the INS at its discretion. 

To be sure, a number of persons who are being detained by the INS should, indeed, be detained either because they are a danger to themselves or the community 

or because they are in removal proceedings and are in danger of absconding. But 

a great number of those in INS detention are neither dangerous nor flight risks. 

This number includes many children, asylum seekers, and longtime residents who 

have U.S. citizen or Lawful Permanent Resident family members in the United 

States. For them, and many others, INS detention is completely unwarranted and 

imposes an unacceptably high human cost on them and their family members. 

Therefore, we support a change in law that would afford the Attorney General 

more discretion to release those currently held under the mandatory detention laws. 

In addition to that, changes in other aspects of our detention policies and practices 

could do much to improve the efficiency of our immigration court systems, reduce 

the costs of detention, and treat persons who are currently subject to INS detention 

with greater compassion and humanity. 

ALTERNATIVES TO DETENTION

As noted above, many INS detainees are neither a danger to themselves nor their 

communities and are not a flight risk. Detaining such individuals wastes valuable 

federal resources that could be put to better use. Detention is not only costly in 

terms of dollars; it is costly, as well, in terms of human suffering as people are needlessly separated from loved ones. Often, the person in detention is the breadwinner 

for United States citizen and/or lawful permanent resident children or spouses. In 

these instances, the individual in detention, the family members, and the communities all suffer. Mr. Chairman, I ask that a report on immigrants in detention published by the Catholic Legal Immigration Network, Inc. (CLINIC) be included in the 

record. 

The Church acknowledges and recognizes the right and duty of the government 

to provide for the public safety and welfare of its citizens. This obligation requires 

that certain dangerous individuals in removal proceedings should be held in detention pending a resolution of their proceedings rather than permitted to remain in 

the country at large. But along with this duty should be an obligation to assess 

whether each individual in detention is actually a threat to the safety of the country. Human rights considerations, respect for basic dignity, and the practicalities of 

cost and efficiency mandate that individuals in proceedings who are not threats to 

the public safety should not be detained. 

In addition to providing a more humane and compassionate response to individuals currently detained, viable alternatives to detention for deserving individuals 

could save millions of dollars in detention costs and free up costly detention space 

for more urgent uses. For these reasons, Mr. Chairman, we are heartened by the 

inclusion of three million dollars for alternatives to detention in the fiscal year 2002 

budget. We urge you to press INS to use this money to begin pilot programs on alternatives to detention. 

We know that workable alternatives to detention exist. For example, the INS recently funded a pilot project which allowed for the supervised release of more than 

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2Testing Community Supervision for the INS: An Evaluation of the Appearance Assistance 

Program, Final Report of the Immigration and Naturalization Service, August 1, 2000. 

500 non-citizens in three categories: asylum-seekers, individuals in removal proceedings due to a criminal conviction, and undocumented persons apprehended at 

work sites. The results were remarkable. Ninety-one percent of supervised non-citizens in the project appeared in court compared to 71 percent of non-citizens released 

on bond or parole. Sixty-nine percent of Appearance Assistance Program (AAP) supervised participants complied with final orders of removal compared to 38 percent 

of a group released on bond or parole. The project showed that supervision costs 

only $12 per day, as compared to the $61 cost per day for INS detention.2

There are also other successful models for alternatives to detention including one 

operated by Catholic Charities in New Orleans that finds jobs, housing and needed 

counseling for released asylees as well as long-term detainees. 

LEGAL ORIENTATION PRESENTATIONS

In addition to the many other problems faced by individuals in INS detention, 

these detainees often carry the added burden of being without easy or affordable access to legal representation. Many of the facilities where they are held are in remote 

locations, far from legal help. Persons in INS detention do not have access to government appointed counsel, and, because most are indigent and cannot afford a lawyer, more than 90 percent go unrepresented. ‘‘Legal orientation’’ presentations, 

which provide detainees with a briefing on their rights under U.S. law, could offer 

hope to these unrepresented individuals as well as improve efficiencies in the immigration system, help identify detainees worthy of relief, and reduce detention costs. 

Again, Mr. Chairman, we are pleased that one million dollars was included in the 

fiscal year 2002 budget for legal orientation presentations. We urge you to ensure 

that the Executive Office for Immigration Review (EOIR) is the body administering 

this program and that it does so expeditiously so that detainees are fully apprised 

of their rights. 

UNACCOMPANIED MINORS IN INS CUSTODY

Mr. Chairman, we are particularly concerned about the increasing numbers of unaccompanied minors being held in INS detention. We believe that unaccompanied 

minors in removal proceedings are deserving of special treatment and that the INS 

should place as many as possible with family members, in foster care or in privately 

run shelter-care facilities. Yet a large percentage (approximately 30 percent) are 

still regularly detained in county or municipal juvenile correction centers, despite 

the fact that many of these minors have not committed any crime, are not considered flight risks, and do not present disciplinary problems. Detention in these jails 

greatly impairs the minor’s access to counsel, and the inherently harsher conditions 

of confinement can result in the minor being too demoralized and/or discouraged to 

seek help or to participate meaningfully in court proceedings. 

Unaccompanied minors enter the United States under a variety of circumstances. 

Some seek to reunite with family members, others are asylum seekers who have experienced persecution, some are children who have been smuggled into the country 

and are at risk of being caught again by smugglers and forced into sweatshop labor 

or worse. Whatever their circumstances, these children deserve special care. The 

guiding principle in placing these children in appropriate settings should be the best 

interests of the child. Therefore, we believe that the care and placement of unaccompanied minors apprehended by the INS should be provided by child welfare agencies 

experienced in serving the special needs of children. Unaccompanied minors should 

not be held in any type of secure facility unless absolutely necessary for the child’s 

or society’s safety. When used to detain unaccompanied minors, secure facilities 

should protect these children from potential dangers and separate them from criminal offenders. 

Regardless of their status upon entry into the United States, all unaccompanied 

children warrant special consideration because of their physical and emotional age, 

their separation from family and country of origin, and because they may have fled 

persecution in their home countries. Mr. Chairman, legislation introduced in the 

House of Representatives (H.R. 1904) by Representative Zoe Lofgren (D-Cal.) and 

Chris Cannon (R-Utah) and in the U.S. Senate (S. 121) by Senator Dianne Feinstein 

(D-Cal.) would provide clear guidelines for the standard of care of unaccompanied 

minors, ensuring that they are housed in appropriate shelter or with foster families 

if their own relatives are unable to care for them. We ask that you expeditiously 

consider this important legislation. 

51

I would now like to turn your attention, Mr. Chairman, to a number of Department of Justice proposed rules and actions relating to the detention of non-citizens 

that have been issued in the wake os the September 11, 2001, terrorist attacks on 

the United States. These include:

• an interim rule increasing the amount of time that an alien may be held 

without charges;

• an interim rule providing for an automatic stay of an immigration judge’s bond order; and

• an interim rule on the ‘‘indefinite detention’’ of aliens that contravenes the 

U.S. Supreme Court ruling in Zadvydas v. Davis.

Together these and other actions undermine the intent of Congress in enacting the 

USA Patriot Act, and the holding of the U.S. Supreme Court in its decision in 

Zadvydas v. Davis. 

INTERIM REGULATION ON CUSTODY PROCEDURES

Mr. Chairman, the Committee on Migration has serious concerns about the Interim Rule on Custody Procedures issued by the INS on September 20, 2001. 

The Interim Rule increases from 24 to 48 hours the amount of time in which the 

INS must make a determination whether to continue to hold an alien in custody, 

release the alien on bond or recognizance, and whether a notice to appear and warrant of arrest will be issued. The Interim Rule also creates an exception to this 48-

hour rule, ‘‘in the event of an emergency or other extraordinary circumstances,’’ in 

which case these determinations will be made ‘‘within a reasonable period of time.’’

While the U.S. Bishops have condemned the horrific attacks on the American people on September 11th and support the U.S. Government’s efforts to bring to justice 

persons involved with the terrorist acts, we are deeply concerned that the Interim 

Rule will trample on the very rights and freedoms that are the foundation of our 

democracy. The Interim Rules goes far beyond the recently enacted provisions of the 

Uniting and Strengthening America by Providing Appropriate Tools Required to 

Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), by authorizing 

the potential indefinite detention of someone without charging them and without 

providing a custody determination. This offends the most basic tenets of due process 

and fairness. 

Catholic diocesan immigration programs throughout the United States assist detained aliens in removal proceedings. These agencies regularly respond to calls from 

anxious family members when their relatives have been apprehended and detained 

by the INS. Under the law and regulations prior to the Interim Rule, family members could be assured that a legal representative could at least discern the charges 

against the detainee and that a hearing would be held to determine whether the 

person could be paroled or bonded out of detention. 

Under the Interim Rule, no such assurance can be made. In fact, the rule would 

allow the INS to detain an alien, without any charges or evidence that they pose 

a threat or flight risk, for an open-ended period of time. The trigger for this broad 

and unprecedented authority would be ‘‘in the event of emergency or other extraordinary circumstances.’’ Such broad language invites abuse. A person innocent of any 

wrongdoing could, under this rule, be detained indefinitely without any charges ever 

being brought against him. Furthermore, because no charges would be filed, the person would have no forum in which to contest his detention or appeal that decision. 

This is counter to all notions of fair play and justice. 

Standard for Invoking ‘‘Emergency or Other Extraordinary Circumstances’’

As stated, the Interim Rule stipulates that an exception to the 48-hour detention 

period will exist ‘‘in the event of emergency or other extraordinary circumstances.’’

In the event such circumstances arise, the INS is free to hold a person without any 

specific limit, other than ‘‘a reasonable period of time.’’ The language that triggers 

this broad exception in the Interim Rule is too vague. For example, does an ‘‘emergency’’ include a government shut down due to a budget impasse with Congress, or 

does it only mean emergencies related to national security? Who has the authority 

to declare such an emergency and what is the standard used to do so? 

The other proposed language ‘‘extraordinary circumstances’’ is even more vague. 

Conceivably, any INS arrest and detention after September 11, 2001, could be considered in ‘‘extraordinary circumstances’’ since the terrorist attack and subsequent 

investigation is unprecedented in U.S. history. The Interim Rule’s language is ambiguous and would lead to unnecessary confusion and, possibly, abuses of detention 

power. More importantly, Mr. Chairman, you and your colleagues in Congress recently gave the Attorney General the power to detain someone suspected of terrorist 

52

activities for seven days prior to charging them with a crime or immigration violation. This new law addresses the concern that purportedly spurred this Interim 

Rule—the need for the government to be able to hold a suspected terrorist while 

determining through international and domestic intelligence whether or not charges 

should be brought against him. 

The Interim Rule states that in the event of emergency or other extraordinary circumstances, the INS may detain a person without charge or custody determination 

for a ‘‘reasonable period of time.’’ The language defining the time limit for the exception in the interim rule is unacceptably open-ended. In its current form the rule 

could result in a life sentence for a person based on no more than a mere suspicion 

of some immigration violation. 

The language must be changed at least to conform with the USA PATRIOT Act, 

which states that the Attorney General may hold non-citizens considered suspected 

terrorists for up to seven days before charging them with a crime or beginning deportation proceedings. Preferably the language granting any exception should be deleted since the USA PATRIOT Act affords the Attorney General the authority he 

needs to detain suspected terrorists in a time of national emergencies, making the 

Interim Rule language unnecessary. If the language is not omitted, the time limit 

should be specified and less than seven days. If the Attorney General is limited to 

holding suspected terrorists for seven days before charging them, then certainly a 

person held for a much less specific and serious reason should be held for less time. 

We urge you to hold the Department of Justice accountable in order to avoid excesses or abuse in INS detention, particularly in light of the fact that Congress just 

enacted The PATRIOT Act which adequately addresses the concerns that led to the 

issuance of this Interim Rule. 

INTERIM REGULATION ON AUTOMATIC STAY OF BOND ORDERS

Another interim regulation affecting the detention of immigrants that the Committee has concerns about is the interim regulation regarding custody determinations published October 31, 2001. This interim regulation grants the INS broad authority to invoke an automatic stay of an immigration judge’s bond order and the 

Board of Immigration Appeals’s decision on the appeal of such an order. 

The interim regulation undermines non-citizens constitutionally-protected right to 

be free from detention unless they are dangerous or present a flight risk. As written, the regulation will ensure that non-citizens suffer unwarranted detention for 

significant periods of time while they wait for INS bond appeals to be processed by 

the Board of Immigration Appeals and certified to the Attorney General. The regulation overrides both the liberty interest of non-citizens and the function of the judges 

of the Immigration Court system and the Board of Immigration Appeals as neutral 

guarantors of a fair bond system. It undermines the authority of Immigration 

Judges and Board Members and gives INS personnel the unilateral authority to 

hold non-citizens in detention for significant periods of time regardless of the decision rendered by an Immigration Judge or the BIA. It confers decentralized, 

standardless authority over critical detention decisions to the INS, an agency where 

diffusion of authority and lack of accountability have repeatedly become problematic. 

The regulation is not narrowly tailored to achieve a legitimate government objective. Its scope is broad in that it applies to all categories of immigration offenses 

regardless of the seriousness of the underlying offense charged, or of the level of the 

bond determination made by the Immigration Judge. The problem that the regulation purports to solve—the bureaucratic challenge of timely filing of stay motions 

by the INS and issuance of interim stays by the BIA prior to bond being posted for 

a non-citizen—has not actually been a problem, even in the wake of widespread detention of non-citizens as part of the post-September 11 dragnet. 

The inclusion of all types of offenses, no matter how innocuous, in the automatic 

stay provision is a significant departure from the preexisting regulation promulgated after passage of the Illegal Immigrant Reform and Immigrant Responsibility 

Act of 1996 (IIRIRA). That regulation subjects non-citizens charged with deportability for commission of a broad range of offenses, including involvement in terrorism or conviction of aggravated felonies and many lesser crimes, to mandatory 

detention and an automatic stay where an Immigration Judge grants bond. In justifying that regulation, the government argued that the combination of an initial high 

bond and the requirement that the non-citizen have committed ‘‘a serious criminal 

offence’’ justified the draconian provision. 63 Fed. Reg. at 27447. Obviously, the new 

regulation eliminates the requirement that the non-citizen be accused of a serious 

offense. Any offense can trigger the automatic stay provision, provided that the local 

INS office has set a bond of $10,000 or more. Unlike the bond level requirement, 

53

the conviction requirement was objective and not subject to manipulation by the 

INS. 

INTERIM REGULATION ON CONTINUED DETENTION OF ALIENS SUBJECT TO FINAL

ORDERS OF REMOVAL

The Committee on Migration welcomed the Supreme Court’s decision in Zadvydas v. Davis holding that the Immigration and Nationality Act (INA) limits an alien’s post-removal-period detention to a period ‘‘reasonably necessary to bring about that 

alien’s removal from the United States. It does not permit indefinite detention.’’ Many indefinite detainees and their families were heartened that the Supreme 

Court had recognized their plight and that a statute permitting indefinite detention 

would have violated their due process rights under the U.S. Constitution. The immigrant community and its advocates awaited the new INS regulations that would 

give effect to the Supreme Court’s decision. 

We and many others were dismayed by the contents of the current interim rule 

published on November 14, 2001 implementing the Zadvydas decision. The interim 

rule turns the Zadvydas decision on its head. The rule appears to lengthen the statutory 90-day removal period to six months by eliminating all references to ‘‘90-days’’ in the existing regulation and avoiding any time limitation for the INS in assessing 

the likelihood of removal. The interim rule creates a number of issues the INS must 

review prior to releasing a person, such as the detained person’s compliance with 

obtaining travel documents, State Department information regarding the likelihood 

of removal to a particular country, and whether there are any ‘‘special circumstances’’ meriting continued detention. However, the interim rule contains no 

timeline for the INS to make such considerations or issue decisions. The interim 

rule, as it stands, will simply result in the very indefinite detention that the 

Zadvydas decision prohibits. 

In addition, although the Supreme Court focused the bulk of its majority opinion 

on discussing the ‘‘serious constitutional problem’’ that would be raised by a statute 

permitting indefinite detention, the current interim rule focuses on the few exceptions to indefinite detention briefly referenced in the decision. The interim rule focuses on detaining persons under these exceptions, rather than on releasing the vast 

majority of detainees who are neither ‘‘terrrorists’’ nor ‘‘specially dangerous’’ persons. 

Not only does the interim rule give undo focus to the exceptions to release of indefinite detainees, the interim rule exceeds any authority given by statute or decision in terms of justifications for further detention. The interim rule also fails to 

provide important procedural safeguards for any such exceptions to be invoked. 

THE INTERIM REGULATIONS AND THE USA PATRIOT ACT

In drafting the Uniting and Strengthening America by Providing Appropriate 

Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT 

Act), Pub. L. No. 107–56, 107–56, 115 Stat. 272 (October 26, 2001), Congress provided for two carefully-limited extensions of the INS’ power to detain non-citizens. 

First, it provided that a non-citizen could be held without being charged with an 

immigration or criminal offense for seven days. The seven-day limitation was enacted after rejection of longer time frames. Second, it allowed the Attorney General—or the Deputy Attorney General acting under authority delegated by the Attorney General—to detain indefinitely a non-citizen where he certifies that he has 

‘‘reasonable grounds to believe’’ that the non-citizen is involved in terrorist activities, subject to ongoing review of the certification every six months and habeas corpus review in federal District Court. Both the nondelegation language limiting this 

authority to the Attorney General and the Deputy Attorney General, and the judicial review language were added in the course of the debate over the USA PATRIOT 

Act. The narrowness of these limitations was the product of serious debate and an 

honest effort to balance our country’s legitimate security needs and the civil rights 

of non-citizens present here. 

Both of the interim regulations cited above authorize through administrative action what the administration could not achieve in the legislative process: a broad, 

almost standardless mechanism for ensuring that non-citizens can be held for 

months in detention by the INS. Both the Congress, in the PATRIOT Act, and the 

Supreme Court in it decision in Zadvydas v. Davis, have spoken clearly against this 

kind of detention. 

Any terrorism or state of emergency provisions should be consistent with the Patriot Act and be invoked by action of the Attorney General or Deputy Attorney General. The interim regulation now in effect is fatally flawed from a constitutional 

point of view in that it includes all immigration offenses, including the most innocVerDate Jan 17 2002 12:13 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00057 Fmt 6601 Sfmt 6621 G:\WORK\IMMIG\121901\76810.000 HJUD1 PsN: 76810
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uous, has no time limitation on when it is effective, and allows local INS personnel 

to ensure non-citizens’ long detention without review. It is essential that any provisions that would trigger a general automatic stay be limited in time, and be triggered only by the personal authorization of the Attorney General or Deputy Attorney General. This is the model that was created by Congress and the administration 

in the USA PATRIOT Act, and it is essential that the Department of Justice draft 

its regulations in conformity with our laws and Constitution. 

CONCLUSION

Each of these views, Mr. Chairman, is offered respectfully, recognizing that all of 

us involved in the complex issues of migration—whether government officials, private agency personnel, or the faithful—are doing our best to address the challenges 

of migration in our increasingly globalized world. 

Mr. Chairman, it is the view of the U.S. Bishops that we, in the United States, 

must renew our commitment to welcome newcomers to our shores and to offer them 

humane and compassionate treatment. By doing so, we serve our own vital interests 

and act as an example to other nations. 

On behalf of the nation’s Catholic bishops, I thank you and your colleagues on 

the Subcommittee for allowing me the opportunity to present our views and for your 

leadership on this issue of vital national importance.

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