U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

22–332 PDF 2006

S. HRG. 109–64

STRENGTHENING INTERIOR ENFORCEMENT:

DEPORTATION AND RELATED ISSUES

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, BORDER 

SECURITY AND CITIZENSHIP

AND

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND 

HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 14, 2005

Serial No. J–109–13

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND CITIZENSHIP

JOHN CORNYN, Texas, Chairman 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JAMES HO, Majority Chief Counsel 

JIM FLUG, Democratic Chief Counsel 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

JON KYL, Arizona, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JOHN CORNYN, Texas 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

DIANNE FEINSTEIN, California 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

RUSSELL D. FEINGOLD, Wisconsin 

RICHARD J. DURBIN, Illinois 

STEPHEN HIGGINS, Majority Chief Counsel 

STEVEN CASH, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 6

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

prepared statement .......................................................................................... 103

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 6

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 5

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 3

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

statement .............................................................................................................. 133

WITNESSES 

Cerda, Victor X., Acting Director of Detention and Removal Operations, Immigration and Customs Enforcement, Department of Homeland Security, 

Washington, D.C. ................................................................................................. 9

Cohn, Jonathan, Deputy Assistant Attorney General, Civil Division, Department of Justice, Washington, D.C. ..................................................................... 7

Gelernt, Lee, Senior Staff Counsel, Immigrants’ Rights Project, American 

Civil Liberties Union, Washington, D.C. ............................................................ 29

Venturella, David, U.S. Investigations Services, Washington, D.C. ................... 27

QUESTIONS AND ANSWERS 

Questions for Victor Cerda submitted by Senators Cornyn, Kennedy, and 

Kyl ......................................................................................................................... 43

Responses of Jonathan Cohn to questions submitted by Senators Kennedy 

and Kyl .................................................................................................................. 48

SUBMISSIONS FOR THE RECORD 

Callahan, Randy A., Executive Vice President, National Homeland Security 

Council, AFGE, Washington, D.C., prepared statement ................................... 56

Cerda, Victor X., Acting Director of Detention and Removal Operations, Immigration and Customs Enforcement, Department of Homeland Security, 

Washington, D.C., prepared statement .............................................................. 60

Cohn, Jonathan, Deputy Assistant Attorney General, Civil Division, Department of Justice, Washington, D.C., prepared statement .................................. 72

Culliton, Katherine, Legislative Staff Attorney, Mexican American Legal Defense and Educational Fund, Washington, D.C., prepared statement ............ 106

Gelernt, Lee, Senior Staff Counsel, and Lucas Guttentag, Director, Immigrants’ Rights Project, American Civil Liberties Union, Washington, D.C., 

prepared statement .............................................................................................. 117

Morawetz, Nancy, Professor, New York University School of Law, Immigrant 

Rights Clinic, prepared statement ...................................................................... 135

Venturella, David, U.S. Investigations Services, Washington, D.C., prepared 

statement .............................................................................................................. 142

(1)

STRENGTHENING INTERIOR ENFORCEMENT: 

DEPORTATION AND RELATED ISSUES 

THURSDAY, APRIL 14, 2005 

UNITED STATES SENATE, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY AND

CITIZENSHIP AND THE SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY, COMMITTEE ON THE

JUDICIARY, Washington, DC. 

The Subcommittees met, pursuant to notice, at 2:34 p.m., in 

room SD–226, Dirksen Senate Office Building, Hon. John Cornyn, 

Chairman of the Subcommittee on Immigration, Border Security 

and Citizenship, presiding. 

Present: Senators Cornyn, Kyl, Hatch, Sessions, Coburn, and 

Kennedy. 

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

SENATOR FROM THE STATE OF TEXAS 

Chairman CORNYN. Good afternoon. This joint hearing of the 

Senate Subcommittee on Immigration, Border Security and Citizenship and the Subcommittee on Terrorism, Technology and 

Homeland Security will come to order. 

First, I want to thank Chairman Specter for scheduling today’s 

hearing and to say that once again, I am pleased that this hearing 

today is a joint hearing of two committees that have a vital interest 

in the subject we are going to discuss. 

As we noted last week, Senator Kyl and I plan to work together 

through these hearings and, of course, in negotiations to address 

problems facing our immigration system. 

I also want to express my gratitude to our ranking members of 

both Subcommittees, Senator Kennedy, the Ranking Member of the 

Immigration Subcommittee, and Senator Feinstein, the Ranking 

Member of the Terrorism Subcommittee, as well as their staffs, for 

working so diligently to make this hearing possible. 

While traditional immigration issues do not always involve terrorism issues, we need to remember that terrorists desiring to 

enter the country explore illegal entry, alien smuggling, and other 

ways to exploit our immigration laws to facilitate entry into the 

United States. That is why having these two subcommittees jointly 

participate in these enforcement hearings brings important perspectives and depth to our review of these issues. 

No serious discussion of comprehensive immigration reform is 

possible without a review of our Nation’s ability, or maybe we 

should say inability at present, to secure its borders and enforce its 

2

immigration laws. These discussions must necessarily include providing sufficient tools and resources to keep out of our country 

those who should be kept out, to identify those in our country who 

should be apprehended, and to remove from this country those the 

Government orders deported. 

These issues continue to dominate public discussions across the 

country and are among the most significant topics facing our Nation today. We are even finding that they are creeping into the war 

supplemental debate that we are having on the floor right now, unfortunately, from my standpoint. 

Just last month, President Bush met with leaders of Canada and 

Mexico in my home State to discuss, among other things, border security, and I hope today’s hearing will build on that discussion. 

This is the second in a series of hearings planned on strengthening enforcement. In our first hearing, we examined the challenges faced by our inspectors at ports of entry, including the need 

for adequate training, the need to provide them with sufficient relevant information, and the need for document integrity. 

Beyond today’s hearing, I hope to continue this series later this 

month by examining the tools and resources needed to protect our 

borders along the perimeter of the country in between authorized 

ports of entry and other issues important and relevant to this discussion. But, today we will focus on the challenges to adequate enforcement of our immigration laws in the interior of our country, 

away from the borders. 

Generally, when people talk about immigration enforcement, 

they naturally refer to Border Patrol agents, and Border Patrol 

agents are critical to the enforcement process. However, illegal immigration issues are not limited to the border or to border States. 

Equally important are those immigration investigators, detention 

officers, and other professionals responsible for locating, detaining, 

and removing those who are in this country in violation of our 

laws. 

Recent events have highlighted the importance of these interior 

enforcement issues, including intelligence professionals expressing 

concerns that terrorists intend to surreptitiously enter our country. 

These concerns are striking given two significant events recently 

reported by the Homeland Security Department. First, DHS discovered an elaborate tunnel under the California-Mexico border, complete with a cement floor and intercom connecting a house in Mexico to a home in California. Additionally, ICE agents recently 

rounded up more than 100 gang members from the violent Central 

American gang MS–13, all of whom were in this country illegally. 

Both of these examples—and they are only two examples—illustrate the emerging national security threat that worries intelligence officials as established smuggling routes and violent gangs 

can easily facilitate terrorists entry into this country for the right 

price. 

Today’s hearing addresses this critical portion of our immigration 

system because no country can effectively carry out its sovereign 

duty to enforce its laws unless it can effectively apprehend those 

who should be arrested and efficiently removed from the country. 

We must scrutinize these issues. 

3

Unfortunately, there are several recent decisions from the United 

States Supreme Court that may require Congress to act again in 

this area. These decisions that we will talk about some during this 

hearing require the Government to release aliens who have been 

ordered removed from our streets. I intend to ask our witnesses 

today about the types of aliens ordered removed who have been released into our streets. 

Also, I fear that today’s hearing will amply demonstrate that we 

face serious problems with our deportation system that impede the 

enforcement of our final orders of deportation, particularly as it relates to those who have committed crimes in our country while 

guests. Simply put, our Nation’s process for deporting individuals 

who are not lawfully present is over-litigated and under-resourced 

over-lawyered and under-equipped. We must find a better way of 

removal because if we are not serious about deporting those who 

have exhausted all of the remedies and who are under final orders 

of deportation, we can never claim to be serious about reform. 

Additionally, we will examine various related issues associated 

with detention of those here illegally. Specifically, today’s witnesses 

will address detention bed space limitations, alternatives to detention, the difficulty of locating those who abscond, and other alternatives such as using MOUs, memorandums of understanding, 

with State and local law enforcement, like those already being used 

in Alabama and Florida. 

We will discuss the investigative priorities of interior immigration agents. I hope to hear how they intend to meet their priorities 

and how they intend to balance them with the approximately 6,000 

ICE agents available to address the approximately 10 to 12 million 

people here illegally. This obvious disparity in numbers is something that we must address. 

Our interior enforcement personnel are highly dedicated and professional. They face monumental tasks and carry out their assignments diligently. I hope to hear today how Homeland Security 

plans to enhance their enforcement efforts and what impediments 

the Justice Department has identified to effectively removing those 

ordered removed. 

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

With that, I would like to turn the floor over to my colleague, the 

Chairman of the Terrorism Subcommittee, Senator Kyl, for any 

comments he might wish to make. 

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

FROM THE STATE OF ARIZONA 

Chairman KYL. Thank you, Senator Cornyn. 

The purpose of this hearing has been well outlined by Senator 

Cornyn. We are two Subcommittees today conducting this hearing, 

not just one, and so we focus both on the terrorism and homeland 

security implications as well as the immigration implications of the 

policies that you are going to be discussing today. So we welcome 

you to this hearing and look forward to your testimony. 

As was noted, we are going to examine the challenges facing the 

Department of Homeland Security as it goes about the business of 

apprehending and detaining and removing illegal immigrants from 

4

the interior of our country. We will also examine the challenges 

facing the Department of Justice as it litigates immigration cases 

in the Federal courts. 

Let me take this opportunity first to thank you, Mr. Cohn. You 

know that we appreciate—many Members of Congress I can certainly speak for appreciate the work that the Department of Justice does to defend and maintain the integrity of the immigration 

laws in our courts. The Office of Immigration Litigation and the 

U.S. Attorney’s Offices throughout the country have kept the quality of representation high even as the number of immigration cases 

has soared. 

We are also conscious of the fact that you are doing this job nevertheless faced with constraints on resources, as Senator Cornyn 

noted, and we would like to learn from you today, among other 

things, what Congress might be able to do to assist you in this 

area, in addition to taking action on the legislative changes that 

were discussed in your written statement. 

And, Mr. Cerda, I also want to congratulate you and the Department of Homeland Security on the work that Detention and Removal Operations is doing to capture and hold and remove the illegal aliens from our country. I am impressed with the long-range 

strategic vision that Immigration and Customs Enforcement has 

formulated for dealing with the absconders and criminal fugitives 

who are at large in the United States. And I am especially pleased 

with the efforts to track and locate the sexual predators who would 

prey on our children. I understand you have located some 5,000 of 

them. We need to find every one of them and deport them back 

where they came from. 

We are aware of the budget and resource problems that ICE is 

having, and, again, we would like to have you be as frank as possible in this hearing in advising of what you need to fully enforce 

our immigration laws from the point of apprehension to the point 

of removal. 

Also, I would like to welcome the second panel, welcome David 

Venturella from the U.S. Investigative Services and Lee Gelernt 

from the American Civil Liberties Union. We are also looking forward to your testimony today. 

And, again, Chairman Cornyn, thank you for co-chairing this 

hearing. 

Chairman CORNYN. Well, thank you, Senator Kyl. 

As you can see, we have got a number of our colleagues here 

with us indicating the nature of the level of interest. 

Chairman KYL. And as we speak, here comes Senator Kennedy. 

I was going to mention Senator Feinstein will be delayed. 

Chairman CORNYN. I understand Senator Feinstein may be delayed. She is the co-Chair of the Subcommittee along with Senator 

Kyl. But, to the ranking member of the Immigration, Border Security and Citizenship Subcommittee, your timing could not have 

been better, Senator Kennedy, and the floor is yours, sir. 

5

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Well, thank you very much, Mr. Chairman, 

and I thank our witnesses. I apologize. There is a lot going on 

today here in the Senate, as always. 

So I thank you, Mr. Chairman, for calling this important hearing 

on immigration enforcement. The current enforcement has reached 

an all-time high in terms of deportation. In fiscal year 2004, we deported nearly 160,000 people. The plenary power doctrine gives 

Congress the authority to deport non-citizens, including long-time 

lawful permanent residents. But Congress has a responsibility as 

well, and so do the courts, to see that non-citizens receive due process and that the executive branch is fairly and justly implementing 

the law. Yet some current proposals would curtail the judicial review for immigrants, and any limitations to rights guaranteed 

under the Constitution deserve careful and deliberate consideration. Habeas corpus is a bedrock principle of U.S. law, reaching 

back to the Magna Carta, six centuries before our Constitution. It 

declared that no free man shall be taken, imprisoned, or in any 

other way destroyed except by the lawful judgment of his peers or 

by the law of the land; to no one will we sell, to no one will we 

deny or delay right or justice. 

Habeas corpus is a fundamental principle of American justice. It 

is called the Great Writ for a reason: because it means justice for 

people wrongly detained. We owe it to future generations not to undermine the values embedded in our Nation’s great legal tradition. 

These basic principles and values are under siege by some today 

and have led to a rise in anti-immigrant activism. Last month, a 

group of college students in Texas held a ‘‘Catch an Illegal Immigrant Day.’’ In our previous Subcommittee hearing, we were told 

that vigilantes, as President Bush called them, had convened to 

watch the Southern border and catch immigrants all month. One 

rancher said he would shoot every single one of them if he had his 

way. Obviously, vigilante justice violates everything America 

stands for, and we cannot be content with rhetoric alone against 

it. 

I am looking forward to hearing testimony today on the detention 

of asylum seekers, men and women who have stood alone, often a 

great personal cost, against hostile governments for fundamental 

principles such as freedom of speech and religious liberty. Yet these 

courageous persons are often imprisoned in U.S. jails when they 

reach our shores. A recent report by the bipartisan Commission on 

International Religious Freedom criticized the incarceration used to 

detain asylum seekers because they are often held alongside criminals in stark conditions, under constant surveillance, 24-hour 

lights, moved from place to place using shackles. The Commission 

recommended specific detention standards to improve the plight of 

asylum seekers and proposed an Office of Refugee Coordinator. 

I look forward to today’s hearing on all these issues and working 

with my colleagues to deal with the abuses. 

I thank the Chair. 

Chairman CORNYN. Thank you very much, Senator Kennedy. 

The former Chairman of the full Senate Judiciary Committee, 

Senator Hatch, is going to have to leave here very quickly and has 

6

asked to say just a few words by way of an opening statement, and 

I cannot ever—well, rarely could I—say no to him. But, I am going 

to use the better part of discretion and say please go ahead. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman that means a lot 

to me, and I appreciate your courtesy to me. 

Let me first say that I am pleased that important immigration 

issues are being discussed in both the House and the Senate, and 

I suppose we do need to look at comprehensive immigration review 

and reform. It is absolutely imperative for us to reinforce our borders and, I think, fix a broken immigration system. So I look forward to this ongoing process. 

But let me just say this: Last session, I sponsored FILA, the 

Fairness in Immigration Litigation Act, because it makes no sense 

for criminal aliens to get added rights. Now, I plan to reintroduce 

this bill soon. FILA would reform the judicial review process and 

streamline criminal alien appeals. The bill levels the playing field 

between foreign-born nationals who have been convicted of crimes 

and those who have not. FILA would also curtail the rising number 

of immigration-related habeas corpus claims filed in the Federal 

courts since 1996. 

Now, I understand that some groups opposed my Fairness in 

Litigation Act last year that the bill eliminated judicial review, and 

they have continued that claim as attempts are being made to 

streamline immigration appeals this year. 

My bill does allow constitutional claims and legal questions to be 

reviewed in the courts of appeals, and I know the House included 

a similar provision in their bill last year, which was H.R. 418, 

under their Section 105. 

I just wanted to make that point because I think it is important 

that we get on top of some of these issues while trying to be fair 

and trying to do what is right. And I intend to continue to work 

to try and get on top of these issues, and I really appreciate the 

efforts of you, Mr. Chairman, Chairman Kyl, Senator Kennedy, and 

others in trying to resolve the many difficult problems that we 

have in immigration. And I just want to personally thank you for 

giving me this little bit of time. 

Chairman CORNYN. As Senator Kyl noted, we are pleased to have 

a distinguished panel with us today, and I will introduce the first 

panel and ask them to—

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. Mr. Chairman? Mr. Chairman, might I be recognized for a minute? I just want to make a point of clarification. 

And I will not enforce this rule, but we received two testimonies 

last night by staff memo which I would like to put in the record, 

one at 6:11 p.m. and one at 6:38 p.m., to be prepared for this testimony. 

The Committee rules say that the testimony has to be available 

24 hours prior to the Committee hearing, and although I will not 

enforce that, I will say to the witnesses that you are not a bit 

7

busier than we are. And you have known about this hearing for a 

period of time, and for us not to have your testimony on a timely 

basis limits our ability to, number one, correctly understand your 

positions, but also to ask pertinent and appropriate questions. And 

so I would just put on notice that I will ask for an enforcement of 

the rule on any further hearings. I have told that to Senator Specter as well on the general Committee, because I want to be able 

to be prepared. And I think it is inappropriate that, if we are going 

to have the rules, we are not going to enforce them because the 

very purpose of the rule is to allow us to do our jobs more effectively and more efficiently. 

And, with that, I would yield back. 

Chairman CORNYN. Thank you, Senator Coburn. Your desire to 

be well prepared for these hearings is commendable, in my view. 

Jonathan Cohn is Deputy Assistant Attorney General. He graduated from the University of Pennsylvania in 1994 and then Harvard Law School in 1997. He clerked for Judge O’Scannlain on the 

Ninth Circuit and for Justice Clarence Thomas on the United 

States Supreme Court. He has worked for the law firms of 

Wachtell, Lipton, Rosen & Katz and Sidley Austin Brown & Wood. 

He is now the Deputy Assistant Attorney General for the Civil Division with the Department of Justice and is in charge of their Office of Immigration Litigation. 

Joining Mr. Cohn on our first panel is Victor Cerda. He is the 

Director of Detention and Removal for the Department of Homeland Security. He was a former chief of staff for the Immigration 

and Naturalization Service Commissioner James Ziegler and brings 

a vast amount of immigration experience to the table. 

The Committees welcome both of you, and we would be pleased 

to hear your statements. I would like for you to confine those to 

5 minutes, and that will give us plenty of chance then to follow up 

with appropriate questions. And, of course, your written statements 

will be made part of the record, without objection, so you do not 

need to worry that we do not have that before us. 

With that, Mr. Cohn, we would be glad to hear your opening 

statement. 

STATEMENT OF JONATHAN COHN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. COHN. Thank you, Chairman Cornyn, Chairman Kyl, and 

members of the Subcommittees, for inviting me to testify today. 

At the Department of Justice, we are confronted with an overwhelming flood tide of immigration cases, and we are faced with 

the significant flaws that current exist in our Nation’s immigration 

laws. Today I would like to talk about two of these flaws, both of 

which an be fixed legislatively. 

The first of these flaws concerns the judicial review of criminal 

aliens’ removal orders, namely, the St. Cyr problem. Since 1961, 

Congress has consistently provided that only the courts of appeals 

and not the district courts may review deportation and removal orders. This is important because it limits the amount of time an 

alien can delay his removal through seeking judicial review. He 

gets one layer of review and not two. 

8

Moreover, district court review is unnecessary because the alien 

has already typically received multiple levels of administrative review before the case even reaches Federal court. 

In 1996, Congress attempted to streamline judicial review for 

criminal aliens even further. Indeed, Congress tried to eliminate judicial review of their removal orders entirely. Nonetheless, despite 

Congress’ efforts to limit judicial review, the Supreme Court expanded it just 5 years later. 

In INS v. St. Cyr, the Supreme Court held that criminal aliens, 

whom Congress decided should have no judicial review, are actually entitled to more review than they had before and more review 

than non-crimina aliens received. Specifically, the Court held that 

as a statutory matter, criminal aliens could seek habeas review of 

their removal orders. With habeas review, the criminal alien gets 

review in district court and on appeal in the courts of appeals—two 

levels, not one. 

The result of St. Cyr is that Congress’s 1996 reforms are turned 

on their head. The beneficiaries of this include child molesters, like 

Oswaldo Calderon-Terrazas, who was convicted of two counts of 

sexual abuse for drugging and then raping a 15-year-old girl. 

Calderon-Terrazas was able to delay his removal for 2 years by filing a habeas action in district court and then an appeal to the 

Fifth Circuit. To prevent this from happening in the future, Congress should pass Section 105 of H.R. 418, the REAL ID bill, which 

would clarify that judicial review of removal orders is available 

solely in the courts of appeals and now in the district courts. Quite 

significantly, unlike the 1996 reforms, this bill does not attempt to 

eliminate judicial review, but simply restores such review to its 

former settled forum, back in 1961 to 1996, the courts of appeals. 

Moreover, the bill complies with St. Cyr, in which the Court said 

in no uncertain terms that Congress could, without raising any 

constitutional questions, provide an adequate substitute to habeas 

review through the courts of appeals. Accordingly, I encourage Congress to enact this reform. 

The second flaw I would like to discuss is equally troubling. 

Sometimes it is difficult for the executive branch to remove terrorists or criminal aliens who present a danger to the community. 

When an alien cannot be removed, there are basically two options 

for the United States: one, release him into the American public; 

or, two, detain him. 

Before 1996, there was a 6-month limit on the detention of deportable aliens who are ordered removed. Thus, after 6 months, the 

alien had to be released irrespective of the danger he posed. Recognizing this problem, in 1996 Congress eliminated the 6-month limitation. But 5 years later, however, the Supreme Court held, as a 

matter of statutory construction, that the 6-month limit still generally remained, and this past term the Supreme Court extended 

this holding to cover aliens who are stopped at the border. 

Among the aliens that will benefit are criminals who have murdered their wives, molested young children, and brutally raped several women. To give an example, Carlos Rojas-Fritze sodomized, 

raped, beat, and robbed a stranger in a public restroom and called 

it ‘‘an act of love.’’ I understand that DHS and the Public Health 

Service are currently working on his conditional release into the 

9

American public on account of Zadvydas and Suarez-Martinez, the 

Supreme Court decisions. 

Another example is Tuan Thai, who has raped, tortured, and terrorized women and vowed to repeat his grisly acts. Among other 

crimes, Mr. Thai repeatedly raped his friend’s girlfriend over the 

course of several months, beginning while she was 6 months’ pregnant. He then monitored her phone calls and threatened to poison 

her with cocaine and harm her other children if she tried to kick 

him out of the house. He also threatened to beat up his own 

girlfriend slowly until she died. And he later threatened to kill his 

immigration judge and prosecutor after his release. Needless to 

say, Tuan Thai should not be released, and I respectfully urge Congress to pass a law permitting the continued detention of aliens 

like Tuan Thai. 

Thank you. 

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

for the record.] 

Chairman CORNYN. Thanks, Mr. Cohn. 

Mr. Cerda, we would be glad to hear from you. 

STATEMENT OF VICTOR X. CERDA, ACTING DIRECTOR OF DETENTION AND REMOVAL OPERATIONS, U.S. IMMIGRATION 

AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. CERDA. Good afternoon, Chairman Cornyn, Chairman Kyl, 

and distinguished members of the Committee. My name is Victor 

Cerda, and I am the Acting Director for Detention and Removal 

Operations at the Bureau of Immigration and Customs Enforcement. It is my privilege to appear before you today to discuss 

DRO’s mission to promote public safety and national security. 

The role that DRO plays is recognized in our strategic plan, 

‘‘Endgame,’’ which seeks to reach a point where for every order of 

removal issues, a removal is effectuated. While we have a significant road ahead to achieve these results, I am pleased to say that 

our recent accomplishments indicate that we are moving in the 

right direction. 

Unlike the prior INS organizational structure, DRO now is a distinct law enforcement division in ICE that reports directly to the 

Assistant Secretary. The DRO field chain of command was also improved with the creation of direct reporting lines from the field offices to headquarters management. These DHS changes recognize 

the importance of the DRO role in enhancing the integrity of our 

immigration system and supporting the Department’s national security mission. 

DRO’s core mission is the apprehension, detention, and removal 

of deportable aliens, the management of non-detained aliens, and 

the enforcement of removal orders. DRO is also implementing an 

aggressive national fugitive operation program that targets fugitive 

aliens who have ignored judicial orders of removal. Another part of 

the enhanced DRO role in immigration enforcement is the Criminal 

Alien Program and the strategic approach of targeting criminal 

aliens regardless of their location or stage of prosecution. 

I would now like to share with you some of ICE’s accomplishments showing the positive direction in which we are moving and 

10

describe some initiatives implemented in order to achieve better 

enforcement results. 

Record removal numbers. In fiscal year 2004, ICE removed 

160,000 aliens from the United States, including 84,000 criminal 

aliens. Since the creation of DHS, ICE has removed approximately 

302,000 aliens. 

Record number of fugitive apprehensions. In fiscal year 2004, 

ICE had 16 fugitive operations teams deployed across the country. 

These teams apprehended a record 11,000 fugitive aliens with final 

orders of removal, an increase of 62 percent from the prior fiscal 

year. Moreover, 458 of these fugitives were individuals with records 

of sexual offenses against children—a high priority for ICE under 

Operation Predator. 

Alternatives to detention. With the support of Congress, we are 

exploring alternatives to detention—innovative approaches that 

may allow us to released those aliens who do not pose national security or public safety risk—while at the same time ensuring that 

they comply with court hearing dates and removal orders. We have 

deployed electronic bracelet capabilities and telephonic voice recognition systems to all our field offices, and the Intensive Supervision Alien Program piloted in eight cities is out there with the 

goal of reversing the historically abysmal rates of compliance with 

hearing dates and removal orders. 

We are also trying to improve the removal process by focusing on 

enhanced performance. For example, one of the biggest delays we 

face in removing aliens is the timely issuance of travel documents 

from foreign governments. We are working aggressively with the 

Department of State and foreign embassies to identify ways to facilitate the issuance of travel documents. Similarly, we have centralized the process for arranging country clearances for escort removals, are working closely with the Justice Prisoner Alien Transportation System, and continue to work with charter and commercial airline companies to facilitate removal scheduling. 

Providing timely information to State and local law enforcement. 

Operating 24 hours a day, the Law Enforcement Support Center 

provides local, State, and Federal law enforcement agencies with 

timely immigration status and information on aliens suspected or 

convicted of criminal activity. In fiscal year 2004, the LESC responded to more than 667,000 requests for information. 

Worksite enforcement. ICE worksite enforcement focuses on unauthorized workers employed in sensitive security sites. Operation 

Tarmac specifically targets employers who hire unauthorized workers and give them access to sensitive airport areas. ICE has conducted investigations at 196 airports, audited nearly 6,000 businesses, obtained 775 criminal indictments, and arrested over 1,000 

unauthorized alien workers as part of this operation. We are doing 

similar worksite enforcement operations for nuclear facilities, defense facilities, shipyards, and transportation sites. 

These are just a few of ICE’s immigration enforcement accomplishments. We should be proud of our rich tradition of being a Nation of immigrants. I personally am a product of that rich tradition. 

At the same time, the United States has a rich tradition of respect 

for the rule of law and the integrity of our legal system. Respect 

for immigration laws should not be the exception. 

11

I thank you for the opportunity to testify before the Committee. 

I request my statement to be included in the record, and I look forward to your questions. 

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

for the record.] 

Chairman CORNYN. Thank you, Mr. Cerda. 

We will start a 5-minute round of questions and go until we exhaust the questions or exhaust the panel, whichever comes first. 

Let me ask first, Mr. Cohn, the St. Cyr decision by the United 

States Supreme Court, you said, provides criminal aliens more judicial review than aliens who have not committed a crime. Is that 

your position? 

Mr. COHN. That is absolutely correct, Senator Cornyn. 

Chairman CORNYN. And is that because the Court said that unless Congress was more explicit, there would be presumed not only 

to be review at the court of appeals, but there would be access to 

the writ of habeas corpus. 

Mr. COHN. That is exactly right, Senator. 

Chairman CORNYN. Is that something in your view that, if Congress so chose to make sure that criminal aliens did not have more 

review than those who were here and who have not committed 

crimes, that we can do so by explicit statutory language? 

Mr. COHN. That is exactly right. Indeed, the Supreme Court invited Congress to do so or expressly allowed it to do so in Footnote 

38 of the St. Cyr opinion. The Supreme Court expressly said that 

review can be removed from district court into the courts of appeals. 

Chairman CORNYN. You talked about two other decisions. One is 

the Zadvydas decision and the other, I believe, is the Suarez-Martinez decision, which the Court said that you can only detain aliens 

for 6 months and then you must release them, even if their country 

of origin is unwilling to accept them back, simply release them into 

the general population in the United States. 

What sort of aliens are being released from detention because of 

these decisions? 

Mr. COHN. Senator Cornyn, the aliens that are being released include murderers, rapists, and child molesters. 

On the eve of Suarez-Martinez, there were roughly 920 aliens, 

dangerous criminal aliens, in detention who have since been released or who are in the process of being released. These aliens include Mr. Carlos Rojas-Fritze, the person who thought rape was an 

act of love. 

It also includes aliens like Lourdes Gallo-Labrada who literally 

set her boyfriend on fire. 

It also includes Guillermo Perez-Aguillar who repeatedly committed sex crimes against children. 

These are among the aliens that have to be released as a result 

of the Supreme Court’s decisions in Zadvydas and Suarez-Martinez. Chairman CORNYN. Well, you mentioned cases where people have 

committed crimes, and very serious crimes, but we are not just 

talking about people who committed crimes; we are talking about 

suspected terrorists too. One thing clear in Zadvydas is that it is 

constitutional to hold a small segment of particularly dangerous individuals such as suspected terrorists. Does the Department of JusVerDate 0ct 09 2002 14:53 Mar 23, 2006 Jkt 022332 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22332.TXT SJUD4 PsN: CMORC
12

tice believe that Section 236(a)’s indefinite detention of terrorists is 

constitutional in light of the discussion in Zadvydas? 

Mr. COHN. We do, Senator. We believe that 236(a) is constitutional because Zadvydas expressly said—first of all, Zadvydas was 

not a constitutional holding. We should be clear about that. 

Zadvydas simply was a statutory holding. It addressed the scope 

of the currently existing statute 241(a)(6). The Supreme Court 

avoided the constitutional issues. It has no constitutional holding. 

Moreover, on the issue of terrorism and national security, as you 

noted very correctly, the Supreme Court said that special circumstances, including terrorism, are ones in which indefinite detention could be permissible. We believe that 236(a) is constitutionally permissible. 

Chairman CORNYN. And just to clarify, when you say the Court 

avoided the constitutional issue and dealt with the statutory issue, 

that is a traditional approach by a Court to deal with the statutory 

problem that Congress could fix, as opposed to a constitutional defect that Congress cannot fix. Is that right? 

Mr. COHN. That is absolutely correct, Senator. 

Chairman CORNYN. Does the Department of Justice believe that 

Congress can constitutionally authorize extended detention of suspected terrorists, serious foreign policy threats, and others deemed 

a danger to the community as opposed to those who are apprehended merely for, let’s say, a visa violation? 

Mr. COHN. We do, Senator. First of all, again, as noted, Zadvydas

and Suarez-Martinez left the door open because they did not resolve the constitutional issue. Moreover, roughly 50 years ago, in 

the Mazai case, the Supreme Court held that indefinite detention 

is permissible with respect to aliens who are stopped at the border 

and excluded. 

With respect to those who made an entry, the calculus is a little 

bit different because these aliens do have greater due process 

rights. But it is important to note in this context we are only dealing with aliens who have been ordered removed. And at that point, 

those who have made an entry are on equal footing with those who 

have not made an entry. The Fifth Circuit and the Tenth Circuit 

have so recognized, and they upheld the constitutionality of indefinite detention. 

Moreover, it is important to note they were talking only about a 

very narrow class of aliens, as you pointed out, aliens who are a 

significant danger to the national security, foreign policy, or the 

community—a very narrow, targeted group of aliens, and that explains why it is constitutional. 

Furthermore, we endorse the procedural protections that Congress provided in 236(a) and that ensures that all aliens receive the 

process to which they are due. 

Chairman CORNYN. Thank you, Mr. Cohn. I did not mean to just 

pick on you. I have some questions for Mr. Cerda, but my time is 

up here for the first round. So, let me turn the floor over to Senator 

Kennedy for any questions he may have. 

Senator KENNEDY. Thank you very much, and this has been interesting and it is obviously enormously troublesome. 

13

All of these individuals have actually been to jail, have they? 

They were all sentenced? Were they all sentenced under the old 

guidelines, Mr. Cohn? 

Mr. COHN. Yes, Senator. The aliens in the Zadvydas context have 

all served time in jail. That is correct. 

Senator KENNEDY. Let me just ask both of you about the vigilantes, whether the Justice Department and the Department of 

Homeland Security has a position on those. Do you have a position? 

Is it written up? Will you provide it for us? I know this is not directly probably in the Civil Division, and in Homeland Security you 

probably have something. If not, can you provide it for us? Or if 

you do know it, can you state it? 

Mr. COHN. I am sorry, Senator— 

Senator KENNEDY. On vigilantes, what exactly is the Department 

of Justice position with regard to vigilantes now on the border, on 

the Arizona border? 

Mr. COHN. At this point, Senator, I probably should not comment 

on that because the scope of my testimony has been limited to the 

issues of St. Cyr and Zadvydas. 

Senator KENNEDY. Mr. Cerda? 

Mr. CERDA. Senator, I am not in a position either to comment on 

that. It really does not impact the Detention and Removal Operations side. 

Senator KENNEDY. Well, you have responsibility of detention and 

removal, and as the Acting Director of Detention and Removal for 

Homeland Security, you don’t have any position? Because the vigilantes are obviously involved in either—I guess some detention and 

some removal on the border. But that does not come across your 

plate? 

Mr. CERDA. I am not aware of any specifics to that, Senator, so 

I am not prepared to comment. 

Senator KENNEDY. All right. Well, if you can find out if there is 

one, I would be glad to have it, because it would seem to me that 

the Homeland Security would have at least some position on this 

since it is directly related to people who are at the border. And 

there have been reports of vigilantes tripping detection devices for 

border crossers and other kinds of activities which are directly related to Homeland Security. So I just was interested to see whether 

you have some—if there is a policy or if you want to submit it, we 

would be glad to have it. I have not seen one yet from the Department, but if you have it, we would like to have it. 

Mr. CERDA. I will follow up with our Congressional Office, Senator. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Chairman CORNYN. Senator Kyl? 

Chairman KYL. Thank you. I might mention to the Senator from 

Massachusetts, as you may imagine, our newspapers and other 

media in Arizona report extensively on this every day, and at least 

to my knowledge, the reporting has only suggest one case where 

there was a detention by one of these so-called Minutemen who 

was released and the immigrant was treated appropriately by the 

Border Patrol. So I don’t think there are any situations like that, 

at least that have been reported publicly in the media. But when 

the whole exercise is over with, I think it would be a useful exerVerDate 0ct 09 2002 14:53 Mar 23, 2006 Jkt 022332 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22332.TXT SJUD4 PsN: CMORC
14

cise to have somebody official report on it so that we do have a 

good handle on what is going on. 

Senator KENNEDY. If the Senator would just yield, what I was 

just asking is what is the current position with regard to the 

groups. I mean, do they have a policy position with regards to it 

and what is the policy? You know, what was the policy? That is 

what I was interested in finding out from Homeland Security and 

from the Justice Department. I appreciate Mr. Cohn is here on a 

very specialized issue, and this has been enormously interesting. 

And I think it is asking a lot to ask you for a detailed position on 

it, but there has to be at least some reaction from the Justice Department in terms of the Border Patrol and the rest. There must 

be some policy kinds of issues or questions, and I was just interested in what the Department’s was. But I do not want to delay 

Mr. Cohn or other questions on the matters that are before the 

Committee. 

Chairman KYL. And again, in response to that, I know there 

were a lot of arrangements worked out between both the Cochise 

County sheriff’s department and the Border Patrol and these beforehand to try to prevent improper activities. And, again, it is appropriate to understand what our Government’s policies in that regard are. 

Senator KENNEDY. Thank you. 

Chairman KYL. Perhaps, Mr. Cohn, you could—well, let me get 

Mr. Cerda since he has not been given a question yet here. How 

many of the illegal immigrants released into the interior of the 

United States each year are due to lack of detention space to keep 

them detained? 

Mr. CERDA. The DRO in Homeland Security and ICE is budgeted 

for 19,400 beds. Last year, we had over 200,000 admissions, initial 

admissions in our detention situations, and the population rotates 

through there, whether it is through deportations, through bonding, through granting of relief, terminations, voluntary departures, 

different scenarios. So on a constant basis, we are at 100-percent 

capacity. 

We make decisions daily on a case, national security, criminal 

aliens, mandatory detainees. Those remain and will continue to be 

our priority cases. 

Chairman KYL. So you have to then make decisions as to which 

ones to release because you do not have space even though they 

should be detained versus those who are a higher priority to keep 

in detention. Is that correct? 

Mr. CERDA. On the non-mandatory cases where there is discretion, we will look at them, and we have our prioritization list out 

there 

Chairman KYL. Can you give us any sense in terms of quantification of maybe even a percentage or something like that, where on 

a weekly or a monthly basis you have had to make that determination and release people who otherwise would have been detained 

had you the bed space? 

Mr. CERDA. I would not be able to tell you on a daily basis where 

we are with that. What I can say is right now we have in the nondetained document, which are individuals who are in some form of 

phase in proceedings, immigration proceedings, not detained, our 

15

non-detained document right now just recently reach over a million. So we have— 

Chairman KYL. Over a million people? 

Mr. CERDA. Correct. So we have a million individuals who are in 

some phase of immigration proceedings at this point in time who 

are not in custody, released on a variety of conditions. Some are 

under alternatives to detention. Some are on bond, having posted 

bond. Some of them are released to relatives in the United States. 

Chairman KYL. I am sure you do not have any statistics right 

here today as to how many people show up versus how many skip 

their bond. 

Mr. CERDA. Historically, we have a situation where you have two 

areas of concern. The first one is individuals who fail to appear for 

their hearings with the immigration judge, and historically that 

has been in general in the range of 30 percent who are not detained at the times of their hearing, 30 percent fail to appear, essentially become in absentia cases, fugitives. Subsequent to that, of 

those that do appear for hearings, the other point of critical concern here is that of those ordered removed, you are looking at 80, 

85 percent failing to appear and comply with removal orders. 

Chairman KYL. So for those ordered to be removed, 80 to 85 percent do not comply. 

Mr. CERDA. That is our historical data. 

Chairman KYL. And I presume we do not know where they are. 

Mr. CERDA. Those will be leading into the fugitive situation that 

we have. We are trying to address it aggressively, but right now 

at this time we have a large fugitive alien population. 

Chairman KYL. Well, what would it take—and perhaps you need 

to get back to us in writing on this. But what would it take both 

to end this catch-and-release program in terms of the detention 

space? And, secondly, what would it take in terms of manpower or 

other requirements that you would have to successfully apprehend 

those who do skip out? 

Mr. CERDA. We can get back on that, and I think, again, what 

we are trying to approach it is not only solely a situation of additional detention beds but the resources. You have judges involved; 

you have attorneys involved. And we are also looking at alternatives to detention that are very effective and actually do raise 

compliance that we are looking at right now. 

Chairman KYL. Mr. Cohn, let me just ask you one question here 

before my time is up. What kind of difficulties do you have in removing violent criminals to their countries of origin? And, specifically, I have reference to the possibility that some countries decline 

to repatriate their own nationals who have committed violent 

crimes here in the United States. Who are they and what is being 

done to get those countries to take their people back? 

Mr. COHN. Thank you, Senator Kyl. You are absolutely correct. 

There are certain countries that do refuse to repatriate their own 

nationals. One of those countries is Vietnam, which is why Tuan 

Thai is still in this country. 

We also have difficulty repatriating aliens back to Cuba, and we 

also have difficulty with other countries, for example, Somalia. Although we are lawfully permitted to remove aliens to Somalia, we 

encounter practical difficulties. 

16

Now, these are not legal hurdles in the U.S. law that we are 

talking about. These are practical difficulties, international realities that prohibit us in certain cases from removing an alien back 

to his home country. 

As for what steps should be taken, we would like to work with 

the State Department and Homeland Security and the rest of the 

administration to remove these hurdles. But the hurdles we are 

talking about in these cases, again, are not hurdles within the INA 

but, rather, practicalities and international realities. 

Chairman KYL. Thank you. 

Chairman CORNYN. Senator Sessions? 

Senator SESSIONS. Just to follow up, Mr. Cerda, on the 80, 85 

percent that don’t comply with a deportation order, one of the 

things that is trouble to me is that those who are not complying 

who become fugitives in violation of a court order are not readily 

placed in the Crime Information Center, so that if they are arrested for DUI or petty larceny or a serious offense or speeding and 

they are identified, they run their identification, it is not coming 

back to the local police officer that this person has absconded. 

What is the status of cutting down—or putting these names in 

the center, in the Information Center, so it is available to police officers all over America? And let me just say for those who may not 

understand how fugitives are apprehended in this country. Fugitives are apprehended more often than not by some police officer 

in some town who stopped them for speeding and they ran an NCI 

check on them, and it becomes a positive and they hold them to 

find out what the charges are. We do not have thousands of police 

officers going out and looking for these people who are absconding. 

They get picked up in the normal course of business. But they cannot be identified if we are not putting them in the system. 

So can you tell me how you are doing with that? I have raised 

it in other hearings, and that is the reason I raise it with you. 

Mr. CERDA. I think we have different tracks available to the 

State and locals on cooperation. One is the entry of the names into 

NCIC. I don’t want to—I hesitate in terms of the number. It has 

slipped my mind. But I can get back to you in terms of the actual 

numbers we have entered into NCIC. 

Senator SESSIONS. Well, as I recall the numbers, of those 400,000 

that are listed as absconders, we had about 15,000 in the system, 

the last report I got, which is a terribly bad thing. What about 

somebody today who absconds today? Do their names immediately 

go in the system? 

Mr. CERDA. No, they don’t go immediately into the system. 

Senator SESSIONS. Why not? That would be my question. 

Mr. CERDA. Right now I think the last number I had was substantially larger than the 15,000. What we have done is prioritize 

the cases we enter into NCIC. We have entered all cases that we 

can enter into NCIC with respect to criminal aliens. 

Senator SESSIONS. I believe the number is now 38,000, is the latest figure I have that have been entered in there. Maybe it has 

gone up some. 

Mr. CERDA. I will follow up on that, but it is a priority to get it 

in there. We have entered all the criminal aliens— 

17

Senator SESSIONS. If you get arrested—I hate to interrupt you, 

but people need to understand. If you get arrested for DUI in any 

town in America and you don’t show up for court, your name goes 

in the system that day. And if you get picked up somewhere else 

in another town in another State, they are going to know you are 

a fugitive. Why are these cases not being put in the system? 

Mr. CERDA. Again, one, you have the numbers that are out there, 

over 400,000 cases. We do have to prioritize those numbers. In addition, though, we do have available to all State and locals 24/7 the 

Law Enforcement Support Center, which can be contacted, where 

they will get a determination of alienage to include somebody who 

has been ordered deported. That can be done today. 

In addition to that, we do have an immigration violators file in 

NCIC, a sub-file in NCIC that has additional access that they can 

do queries directly with the Law Enforcement Support Center. 

That exists 24/7 available to the State and locals. In that sense, we 

do have that access, that connectivity, and they are an important 

partner for us. 

Senator SESSIONS. I have checked with people that I know in law 

enforcement for many years. They don’t know this. They don’t have 

this phone number out on their vehicle that they know who to call. 

They don’t even know there is another system. Everybody else that 

they deal with, if they are a fugitive, are in the National Crime Information Center. I have asked the question. It is not a matter of 

technology. The system can handle the extra names. It just would 

strike me that you are not serious about it. I hate to say that. But 

if you were serious about the absconders, Mr. Cerda, wouldn’t the 

first thing you would do would be to put their names in the system? 

Mr. CERDA. I would agree in that approach. It is a multiple approach. There is not one single solution. We are aggressively with 

the fugitive ops teams—last year, we had significant numbers, 

using intelligence, using the local law enforcement. This year, 

again, we are ahead of those numbers. We are taking this issue of 

fugitive aliens seriously. We are taking an aggressive approach, 

and we will continue to enter into NCIC. We will continue to promote. And if it is an issue locally in your area that they are not 

cognizant of the service, we will be happy to go out there and promote it even more aggressively. 

Senator SESSIONS. Well, they are not knowledgeable anywhere. 

They are just not knowledgeable. The system is not working. If you 

want it to work, you will put the names in NCIC. If you don’t want 

it to work, you won’t. Right now I assume you do not want it to 

work because you are not putting names in the system. How can 

I conclude otherwise? 

Mr. CERDA. We did have 667,000 officers out there last year who 

did make the query who were knowledgeable of the system. Clearly, that is not the goal. We are going to continue to grow that. This 

is something serious. 

Senator SESSIONS. There were that many queries made, and a lot 

of those were Federal queries. I assume the average police officer 

in the average town does not know about this system. I have to believe that is so. 

18

Mr. CERDA. We will continue to promote it, sir, and get the word 

out. 

Senator SESSIONS. My time is up, Mr. Chairman. 

Senator COBURN. Just a rhetorical question. What difference does 

it make if most of the names are not in it? If the names are not 

in it, it does not matter whether they know about the system. 

Senator SESSIONS. There is another system that ICE has that— 

Senator COBURN. Where they have to call a phone number when 

they are in the midst of doing this rather than go on the computer 

in their car. 

Senator SESSIONS. Right. That is correct. So he is saying that it 

is in that system, but as a practical matter, it is not available to 

the officer routinely, and that is why they are not picking them up. 

Senator COBURN. Actually, I want to ask a tougher question. Will 

you give this Committee an answer on what you are going to do 

with the 450,000 names and when you are going to put them into 

the system? 

Mr. CERDA. We will give you what numbers are—how much we 

have entered so far. 

Senator COBURN. No, no. What is your plan to get the numbers 

into the system so that you can use it? 

Mr. CERDA. We will give you our plan to that. 

Senator COBURN. I want to ask a question. You know, it is somewhat humorous to me that the group of Minutemen are called vigilantes, and I know our President has called them that. But it just 

means to me he does not get it. The fact is this country is extremely worried about our border. And everything that each of you 

have talked about today will never be solved until we control our 

border. And I don’t know how you are not depressed every day, because you can do your job thoroughly, but it is just going to multiply every year that we don’t control the border. 

I would like to ask each of you, what is your understanding of 

our border control policy in this country? And the fact that we don’t 

have a border control policy that is effective, how does it impact 

your job? 

Mr. CERDA. Well, clearly, it is a significant challenge that we 

have out there. In my perspective, Detention and Removal Operations, we are the supporting unit for the arresting agents out 

there. The numbers are significant, and as our numbers are showing, we are hitting historical records throughout. Plenty of business, plenty of clients out there to process through the system, and, 

you know, frustrated. I am not going to be here in a position to say 

we are going to throw our hands up and surrender over here. We 

are not. We are going to continue to tackle the process, the problems. 

Senator COBURN. Do you send information back up the food 

chain so that they say, you know, we are working here trying to 

do this, but if you don’t make the necessary movements in terms 

of Border Patrol, enhance technology on the border, that you are 

not going to allow us ever to be able to do our job? Does that information head back up? 

Mr. CERDA. We have to work hand in hand with the Border Patrol, with the investigators, with the inspectors at the airport. The 

ABC approach that we have out there, that is an integrated apVerDate 0ct 09 2002 14:53 Mar 23, 2006 Jkt 022332 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22332.TXT SJUD4 PsN: CMORC
19

proach to try to stem one of the weaknesses on the border. That 

process there is not an individual Border Patrol. It is a DHS effort 

there. We are contributing beds. We are taking a strong deterrence 

posture on detention in that area. The Border Patrol is adding the 

resources and the investigation side is adding additional resources. 

Senator COBURN. But it is not discouraging to you that there is 

not the political will in this country right now to control the border 

so that you can do your job, and instead of 77 percent of everyone 

convicted commits another crime in this country? That is not discouraging to you because you deport them and they come right 

back? 

Mr. CERDA. I view it as we are Nation of laws and we are going 

to enforce it regardless of what the situation is. If we fail to continue to pursue the situation, to take the challenge on, then, yes, 

we do have a problem. The men and women that I work with at 

Detention and Removal Operations, they are committed. They want 

to get the job done. 

Senator COBURN. I am not questioning the commitment. You are 

missing my point. I am questioning the commitment of whether or 

not you are telling the people up above you, You have got to give 

the border if we are ever going to be able to do our job? Is that 

communication going in that direction? 

Mr. CERDA. Yes, we are communicating. 

Senator COBURN. All right. Thank you. 

Mr. Cohn? 

Mr. COHN. Senator Coburn, I am very glad you raised this issue. 

I agree with you. there are significant critical flaws in our Nation’s 

immigration laws, and this has tremendously impacted my job and 

the job of people in my office. 

Just to give you an example, in 2001 there were 1,600 petition 

for review cases. In 2003, there are close to 8,500. In 2004, there 

are over 10,000. 

Now, I am not going to say this increase is due solely to the increased number of illegal immigrants, but it is due partially to 

that. The people in my office are working extremely hard. They 

work extremely hard every single day. The average lawyer in my 

office writes a brief in the appellate courts every single week. They 

work so hard because there are a lot of illegal aliens in this country 

and there are a lot of court cases. So I am very, very glad you 

raised this issue. 

Senator COBURN. We also do have a law. It is illegal to come here 

illegally, and we need to enforce that law first before we start 

thinking about enforcing the rest of the laws, because we will never 

win until we enforce that first and utmost law: our border security 

and integrity. And I would just hope that as you all struggle 

through—and I praise your work. You are doing the right thing—

that you will send it up the chain. I mean, we are spending money 

down here that we could have not spent had we had the border secured in the first place. Then we can have a national debate on 

what we do with illegal aliens that are already here that are not 

criminals. But we are never going to have that debate until we control the border, and I would just hope that you would recognize 

your job gets made harder every day that that border stays porous. 

20

And I am not against the idea that the people that have gone to 

Arizona—they are trying to make a point. The Federal Government 

is not doing its job in terms of border integrity, not only in terms 

of the number of illegal aliens that come but also in terms of the 

number of terrorists. And I believe their point is well made. 

Thank you, Mr. Chairman. 

Chairman CORNYN. Thank you, Senator Coburn. 

Let me say, gentlemen, that the purpose of these hearings and 

to hopefully—well, my purpose in these hearings, and I think Senator Kyl shares this—is to document the challenges that we face 

in this country when it comes to our immigration system and hopefully provide all of the Members of Congress, not just in the Senate 

but across the Government and across America, the information 

that we need in order to tackle the big challenges that you are out 

there confronting on the front line every day. And we admire and 

respect your willingness to take on this tough job, but we are trying to figure out how we can add resources, we can be smarter 

about addressing it in a way that makes some of these problems 

easier. 

But, let me talk to you, Mr. Cerda, about a problem that we have 

in Texas. Of course, we have a big, long border with Mexico, and, 

of course, just talking about people who committed crimes; we are 

talking about suspected terrorists. People come up through southern Mexico and from Central America and other places around the 

world. So, not only do we have Central American and Mexican immigrants, we have what are sometimes called ‘‘other than Mexicans.’’ OTMs is the name, as you know. 

But, we have a policy right now, because of the lack of detention 

facilities, that some have called ‘‘catch and release.’’ And you know 

what I am talking about, don’t you? And as I understand it, the 

policy is once the Border Patrol detains an individual, they will 

check for their criminal background, and unless they meet certain 

criteria, their policy is to release them based upon their promise to 

come back for a hearing at a later date, at which time it will be 

determined whether they should be deported. Is that correct? 

Mr. CERDA. The policy when we apprehend somebody, the arresting officers, one, we are taking clearly—you look at the three key 

priorities that we have: national security cases; mandatory detainees, aliens who are under our laws required to be detained, mostly 

because of criminal activity; and then also just anybody else who 

does not fit that but has a community safety, criminal activity potential out there. 

Right now we are—in our overall national population, those 

three areas right there consume about 80 percent, 75 to 80 percent 

of our National bed space capacity. 

Chairman CORNYN. And your bed space capacity is right around 

20,000 now? 

Mr. CERDA. Nineteen thousand four. 

Chairman CORNYN. Nineteen thousand beds, and for the most 

part, other than those top three categories you mentioned, and perhaps whoever else you can detain that you consider a flight risk, 

a special flight risk, basically the policy is to let people go based 

on their promise to come back. 

21

Mr. CERDA. Based on those three factors, you know, slicing up 

the pie in terms of detention bed space, you have a sliver for nonmandatory cases where at that point the arresting officer looks at 

the case and makes a determination of conditions for release. 

Chairman CORNYN. For example, in Harlingen, Texas, the Rio 

Grande Valley, 85 percent of those people who are released never 

show back up again. Are you familiar with that figure? 

Mr. CERDA. I am not familiar with that figure. 

Chairman CORNYN. And you said that nationwide it is about 30 

percent? 

Mr. CERDA. There are two points of departure in the process, two 

key points. 

One is individuals that are released, given their notice to appear 

to go into their hearings. At that point you are looking at 30 percent that do not appear for their hearings at some point and are 

ordered deported in absentia. 

Subsequent to that, you have those that, while released, they are 

still going through the process, who are ultimately ordered removed. At that point 85 percent fail to comply. 

So those are the two key points that we are trying to address 

with the alternatives to detention potentials that exist out there. 

Chairman CORNYN. And the reason why—and nationwide that 

figure is 30 percent, but as I pointed out, in places like Texas—and 

I don’t know what it is in Arizona—places where we have massive 

immigration across our borders, the number is much higher. And 

the reason we are seeing that happen is primarily because of a lack 

of detention space, bed space, where these people might be detained pending their deportation hearing. Is that correct? 

Mr. CERDA. You essentially have a certain amount of beds, and 

you have to prioritize within them and operate within them, so correct, you have 19,400 every day, we are at capacity, and decisions 

have to be made. 

Chairman CORNYN. And part of those decisions mean releasing 

not just economic immigrants, what I would call people who are 

looking for work from Mexico or Central America, but literally people who fly from China into countries in South America, who come 

up Central America, fall in that category of OTMs. Correct? 

Mr. CERDA. You do have those cases, yes. 

Chairman CORNYN. As well as people from Middle East countries, some of whom are areas of special concern to our country because of anti-terrorism concerns. Is that right? 

Mr. CERDA. I think we approach those cases not based on—you 

know, you run the security checks on all these individuals. You 

could have a serious security situation of somebody from the People’s Republic of China or Taiwan, and that individual would be detained as part of it. Similarly, somebody from the Middle East—

I don’t think we draw a broad brush over the country, but clearly 

every one of those we look at is a potential vulnerability, is a potential national security risk, and it is a situation where we have 

to identify them, run the checks, hope the intelligence, if there is 

any that is negative, is available, and based on that make determinations of detention or release. We have got to scrub the cases. 

Chairman CORNYN. Just so we have the picture correct, we know 

how tough a job the Border Patrol has. We don’t know how many 

22

people they actually detain and how many people get through. But 

they detain, they release the overwhelming majority of those because they do not fall into those high-risk categories that you have 

talked about. And, of those released, in order to come back for their 

hearing, a substantial percentage of them never show up. 

Mr. CERDA. At least 30 percent up front fail to show up for their 

hearing. 

Chairman CORNYN. And that is across the Nation, correct? 

Mr. CERDA. Correct. 

Chairman CORNYN. But, I suggest to you that that number would 

be a lot higher in places like Texas, Arizona, California, and other 

southwestern border States. 

Let me just finish this up, just to complete the thought, and then 

I will turn it over to Senator Coburn or other colleagues. 

You mentioned that 85 percent of those who fail to show up for 

their deportation hearing after 30 days, 85 percent of them never 

show up and they become absconders. Is that right? 

Mr. CERDA. Correct. 

Chairman CORNYN. That is, they basically have forfeited any 

right they have to pursue any additional legal proceedings, and 

they are essentially under a final order of deportation. 

Mr. CERDA. Correct. 

Chairman CORNYN. And we currently have about 465,000 people 

who are absconders in the United States, and we simply don’t 

know where they are. Is that right? 

Mr. CERDA. You have a population of 465,000 fugitive aliens out 

there. 

Chairman CORNYN. And about 80,000 of those or so are criminal 

absconders, correct? Somewhere around there? 

Mr. CERDA. That was the original number that came out. I could 

not give you the latest. Again, you are looking at statistics throughout there when we were trying to figure out the population. This 

is something that has been historical. 

Chairman CORNYN. I am trying to get a general— 

Mr. CERDA. But you do have criminal aliens included in that population. 

Chairman CORNYN. A substantial component of that, maybe 20 

percent, somewhere around that, are criminals who have committed crimes, who are simply on the run. They are in the United 

States, and we don’t have the people, we don’t have the resources 

to find them and to make sure that they are deported according to 

law. Is that right? 

Mr. CERDA. It is a significant challenge. 

Chairman CORNYN. You bet it is, and I think part of what we are 

trying to do is to understand better how big that challenge really 

is so we can determine whether we need to provide additional resources, which I think we do, so that you can do that job even better. 

Senator Coburn? 

Senator COBURN. Yes, just a couple of short questions. 

Since there are about 70,000 on the NCIS list and we have got, 

I think your testimony was, now 460,000 absconders. 

Mr. CERDA. Correct. 

23

Senator COBURN. It would seem to me, since you all are so 

stretched and you only have 20,000 beds or 19,400 beds, that might 

be a motivation for not having them on the list. 

Mr. CERDA. Absolutely not. We have got to step back and recognize that this 465,000 has grown through the decades. Post-9/11 we 

brought some attention to it, and for the first time, with your support, we have teams dedicated to this. And we are being very aggressive. It is a Nation of laws, and these individuals have had 

their due process. They have had their hearings, they have had 

their right to claim benefits, and they have been ordered deported 

and now have decided to flout the law. 

I think you look at it, too, though, in terms of it is not a resource 

issue but also you have got to recognize the fact that what are the 

options for these individuals when ordered deported if released. 

And as I put it, one of the challenges is they could either comply 

with us and our request to appear for removal processing and get 

deported, or alternatively, they can make a run for it and see how 

long it takes for us to catch them; and when we do catch them, the 

penalty again is they will be deported. But during that period— 

Senator COBURN. So there is no downside for them. 

Mr. CERDA. And that makes the challenge even larger there. 

Senator COBURN. With 19,400 beds, about $20,000 a year a bed? 

Mr. CERDA. Right now we are looking at $90 a day, and I believe a yearly rate, roughly over $30,000. 

Senator COBURN. So $30,000 times 19,000, that is half a billion 

dollars a year that we have got for beds. Wouldn’t it be smarter 

to put the half a billion dollars down on the border and stop the 

inflow so we don’t need the beds? Rather than give more resources 

here, wouldn’t it be smarter to put the resources on the border to 

control the border? Again, I am telling you, the guys in Arizona get 

it. We are fixing the wrong problem. The problem is the border. 

I will let you go with that. One last thing. Low-priority aliens include those who have committed fraud while applying for immigration benefits with DHS, correct? 

Mr. CERDA. You have it in a prioritization list, yes. 

Senator COBURN. So why instead of letting these aliens go, why 

aren’t they immediately turned over to DOJ for document fraud 

prosecution? 

Mr. CERDA. You are looking at a situation that if they do come 

into our custody and prosecution is declined, that is where they 

fall. But we are aggressively referring re-entry cases, individuals 

who have been multiple re-entries, for prosecution, document fraud, 

benefit fraud. Again, we view these as vulnerabilities to national 

security. 

Senator COBURN. Well, I want to thank both our witnesses. You 

can see from my questioning there is a lot of frustration going on 

for the people that I represent in Oklahoma and people throughout 

this country. And I hope it goes up the chain to the administration. 

The rule of law does need to be enforced, and the first one is the 

border. 

Thank you. 

Chairman CORNYN. Mr. Cohn, I just have one more question, and 

then unless there are other questions of this panel, we will move 

on to the second panel. 

24

In St. Cyr, the Supreme Court decision we were talking about 

earlier, the Supreme Court wrote that, ‘‘A construction that would 

entirely preclude review of a pure question of law by any court 

would give rise to substantial constitutional questions.’’ 

Does the Department of Justice believe that H.R. 418 and last 

year’s S. 2443, streamlining or eliminating judicial review, avoid 

those substantial constitutional questions? If so, why do you believe 

that? And, have there been others who also agree with that position? 

Mr. COHN. Senator Cornyn, thank you for raising that issue. The 

answer to your question is the two bills you referred to—the REAL 

ID Act and the FILA bill—both of those do avoid all the constitutional concerns because both bills contain the same language. In 

both bills, it is expressly very clear that all aliens, including criminal aliens, can go to circuit court, the circuit courts of appeals, and 

they can present their constitutional claims and their pure questions of law. Every alien can do that. Every single alien has his day 

in court. Every criminal alien has a day in court. That day in court 

would be in the courts of appeals. Pure questions of law, every single one of them, and constitutional claims can be presented. 

So both bills you referred to are in compliance with the Supreme 

Court’s words in St. Cyr. And we are not the only ones who believe 

that. During the St. Cyr litigation, there was a companion case, 

Calcano-Martinez, and the ACLU represented the petitioner in that 

case. And they said the same thing. They said that review in the 

courts of appeals was constitutionally permissible. And that is precisely what the REAL ID bill does. It puts review in the courts of 

appeals. 

At oral argument, the ACLU was pressed as to what that scope 

of review had to entail, and the ACLU lawyer made clear that the 

review had to include simply what was traditionally historically 

available on habeas, and that includes constitutional claims and 

questions of law. And the lawyer made clear what he meant by 

questions of law. It was construction of statutes, interpretations of 

statutes. That is what has to be reviewed. And that is reviewable 

under H.R. 418. All pure questions of law and constitutional claims 

are reviewable. 

Moreover, I read the ACLU’s statement for the next hearing, and 

the two concerns they presented really are not legitimate concerns, 

with all due respect. They raise one issue about mixed questions 

of law. They refer to them as applications of law. A mixed question 

of law is in effect a question with two parts. There is the legal part 

of the application and the factual part. The legal part, of course, 

is reviewable, like all questions of law under this H.R. 418. The 

factual part would not be reviewable, but, again, it is clear that 

under the historical scope of habeas review, factual questions are 

not reviewable. And the ACLU agreed to that in Calcano-Martinez. 

To give an example, let’s look at St. Cyr itself. In St. Cyr, the 

question concerned the retroactivity of a provision that abolished a 

type of relief called 212(c) relief. The question was whether that 

abolition applied to aliens who pled guilty prior to IIRIRA’s effective date. The Supreme Court held the abolition did not apply, and 

that is the legal principle. 

25

So if another case were to come around in which an alien said, 

‘‘I pled guilty prior to IIRIRA’s effective date, I am still entitled to 

212(c) relief,’’ there would be a factual question and a legal question. The factual question is when did he plead guilty. That is not 

reviewable because factual questions are not reviewable. The legal 

question, however, embedded within the application, is: Does he 

have a right to 212(c) relief if he pled guilty after IIRIRA’s effective 

date? 

If a court were to misapply the holding in St. Cyr and say he is 

not eligible, even though he pled guilty prior to the effective date, 

that would be a misapplication of law, and that would be reviewable under both bills you mentioned because it is a question of law. 

Finally, they mentioned the issue about needing a backstop, and 

I agree there needs to be a backstop. But that backstop, of course, 

does not have to be in district court. It need not be in habeas. The 

backstop could simply be in the courts of appeals. 

Now, I disagree with them that there is a need to amend the language because all the concerns they raised can be addressed simply 

through the pre-existing motion to reopen procedure. A denial of 

the motion to reopen can be challenged in the courts of appeals. 

However, to the extent anyone were to disagree with that, the solution is simply to amend 242(b)(1) to permit particular claims in the 

courts of appeals. The solution is not to give a backstop in habeas 

because that would propagate the pre-existing problem we have 

now of criminal aliens having twice the review of non-criminal 

aliens. 

Chairman CORNYN. Thank you, Mr. Cohn. 

Colleagues, we are ready to move to the next panel unless anyone has any— 

Chairman KYL. I have got a couple of questions for the record. 

Chairman CORNYN. Very good. Senator Kyl has some questions 

for the record. 

Senator Sessions, if you have some questions? 

Senator SESSIONS. Mr. Cohn, I have recently done considerable 

research and we have worked on a legal article on the question of 

the authority of local law enforcement officers to make arrests of 

those in violation of Federal immigration laws. As I read the authority, only the Ninth Circuit has held explicitly, and that in 

dicta, not as part of its holding, that violation of a misdemeanor 

immigration law, such as an overstay, does not give local law enforcement officers a legal basis, if they have one under State law, 

to detain someone; and that with regard to the other offenses, such 

as illegal entry and violations and crimes in the country and that 

sort of thing, State officers have the authority to do so. 

In fact, the other circuits, I believe two or three other circuits, 

imply that the State and local law enforcement officers have that 

with regard even to the misdemeanor overstay cases—or the civil, 

not misdemeanor, civil overstay cases. 

What thoughts do you have on that? 

Mr. COHN. Senator Sessions, I am glad you raise this issue of 

local law enforcement. It is an extremely serious issue. I wish I 

could say more about that, but the Department is still developing 

its position internally on this issue. I would like to share some 

26

thoughts on it, but at this point I have to refrain and not get ahead 

of other people in my Department on that issue. 

Senator SESSIONS. Well, all I would say is this, Mr. Chairman: 

As a result of one small portion of the law in which one circuit, the 

Ninth, has indicated States may not have authority, that has been 

bandied about the country to try to convince police officers and 

mayors that their officers have no authority in this regard. But 

they have inherent authority under all the circuits, including the 

Ninth, to arrest and detain someone found to be in violation of the 

Federal immigration criminal law, felony or misdemeanor, for that 

matter. And as a result, some departments out of confusion basically are not participating in a way that they would like to participate. I don’t think we need to be mandating local law enforcement 

to participate, but it is a very huge issue as to whether or not our 

Federal Government welcomes, encourages, and is appreciative of 

them when they apprehend people who are violating our laws and 

turn them over to the Feds for processing from there on. 

I know you are ready to go to the next panel. 

Senator COBURN. I just had one little gift. I am going to send you 

both ‘‘Groundhog Day,’’ Punxsutawney Phil. You guys have got to 

be reliving that every day, and I think in that movie, he has got 

it easy compared to you. 

Senator SESSIONS. And I would say that the troops out there, the 

officers on the ground are doing a good job, but we are not—this 

system is not working. You talk to my Alabama police officers, as 

I do on a routine basis, and they tell me if they apprehend someone 

they find to be here illegally, they don’t even bother to call the ICE 

agents. They are not coming to get them. There was just an article 

in the Washington Times yesterday, I believe, saying 13 had been 

arrested and released, 80 percent I assume won’t show back up, or 

any detention order that may occur. So it is undermining public respect here, and we have got to ask you, Mr. Cerda and Mr. Cohn, 

to work on it, to have some integrity here. 

I was a Federal prosecutor for 15 years, and it is just painful to 

me to see the Federal Government make a mockery of enforcement 

of this situation. We cannot continue. We have got to have integrity. 

Chairman CORNYN. Thank you, Senator Sessions. 

And thanks to you, Mr. Cohn and Mr. Cerda, for being here 

today with us. 

We will now move to our second panel of witnesses, and we are 

pleased to have a distinguished second panel as well today, and I 

want to thank them for their appearance. If you don’t mind, I will 

start introducing you as you make your way. 

On this panel we will hear from David Venturella. Mr. 

Venturella is currently employed by U.S. Investigations Services. 

He is a former Acting Director of Detention and Removal for the 

Department of Homeland Security and has spent close to two decades serving our country in the immigration arena. 

Joining Mr. Venturella on this panel is Lee Gelernt, Senior Staff 

Counsel, Immigrants’ Rights Project, American Civil Liberties 

Union. It is significant to note that Mr. Gelernt was also co-counsel 

in the St. Cyr case, so perhaps he will have some comments about 

that, which we have already talked about earlier. 

27

Let me extend a welcome to both of you, and thank you for being 

here with us. Please don’t forget to turn on your microphone, like 

some of us do from time to time, when you begin to speak, and let 

me ask Mr. Venturella if you will start with your opening statement. We will ask each of you to make 5-minute opening statements, and then we will follow with some questions. Thank you 

again for being here. 

STATEMENT OF DAVID VENTURELLA, U.S. INVESTIGATIONS 

SERVICES, WASHINGTON, D.C. 

Mr. VENTURELLA. Mr. Chairman, I would like to thank you and 

the other members of the Subcommittee for the opportunity to testify today. I am honored to appear before you to discuss the matter 

at hand. 

Prior to leaving my Federal post last year, I was responsible for 

enforcing the immigration and naturalization laws of this country 

for 18 years. I began my law enforcement career as a deportation 

officer with the former Immigration and Naturalization Service and 

ended my career as the Acting Director of Detention and Removal 

Operations with U.S. Immigration and Customs Enforcement. In 

that capacity, I was in charge of overseeing the detention and removal efforts of criminal and illegal aliens who ere in the United 

States. 

Now, on a personal note, I am also the son of an immigrant, and 

I understand why so many people have risked their lives, leaving 

their families and homes and everything they know to come to the 

United States to pursue the American dream. For nearly 230 years, 

this country has welcomed immigrants from all walks of life, and 

the contributions of these immigrants have built this great Nation 

to be what it is today—a free Nation. 

However, while we are known worldwide as a shining beacon of 

light for the countless immigrants who come to our shores, we are 

also known as a Nation where law and justice prevail. Without 

strict and fair enforcement of our immigration statutes, our country 

will remain vulnerable to the threats that arise from individuals 

who willingly exploit gaps in our immigration system. 

The accomplishments of the men and women responsible for enforcing our Nation’s laws in the former INS and now in the Department of Homeland Security are extraordinary. Yet, despite their 

heroic efforts, the number of illegal immigrants living in the 

United States and coming across our borders continues to grow. 

Why have our country’s efforts in enforcing immigration laws 

fallen short of expectations after 9/11, even though Congress has 

provided significant increases to the budgets of the agencies responsible for carrying out this important function? The answer is 

simple. Our law enforcement agencies dedicated to this mission 

have done little to develop a cohesive and comprehensive immigration enforcement strategy. 

Instead of viewing the issue holistically, what you see are a number of independent programs and independent efforts competing for 

resources and delivering mixed results. While immigration is a 

complex, emotional, and political issue, the inability to understand 

the importance of linking the enforcement functions of the immiVerDate 0ct 09 2002 14:53 Mar 23, 2006 Jkt 022332 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\22332.TXT SJUD4 PsN: CMORC
28

gration bureaus to carry out a common mission and strategy is baffling. 

Immigration enforcement must be viewed as a continuum. Effective enforcement of our immigration laws will not be achieved until 

all parts of the continuum are balanced and are in sync with one 

another. 

U.S. Border Patrol agents risk their lives every day, only to see 

their efforts wasted because of a lack of detention space to hold 

those they have arrested for crossing our borders illegally. 

Moreover, less than 1,000 deportation officers are asked to manage and supervise hundreds of thousands of aliens every year who 

are in removal proceedings, and then those same dedicated officers 

are asked to locate those same aliens after years of lengthy appeals 

and stays resulting in a removal rate of about 60 percent and a 

growing fugitive population of 400,000 and counting. 

Now, these are very real examples of when the enforcement continuum is out of sync or imbalanced. If the goal is to deter individuals from violating our immigration laws, we are not achieving 

that goal because these individuals suffer no consequence for their 

unlawful actions. 

Now, this is not just a DHS problem. DHS is not the only Department responsible for immigration enforcement. The Department of State and the Department of Justice have significant and 

vital roles in immigration enforcement. The removal of an alien 

from the United States is the endgame of immigration enforcement. 

Yet our foreign neighbors and allies are refusing to accept their 

citizens or nationals for deportation. Although in the past couple of 

years there has been some success in negotiating with countries on 

individual cases, the State Department is reluctant to leverage the 

offending country’s foreign or economic interest with the U.S. to resolve the repatriation stalemate. Very little has been accomplished 

when repatriation of foreign nationals is handled as an isolated 

issue. Eventually, thousands of aliens, in particular criminal aliens, 

have been released back into our communities because of their 

countries’ unwillingness to accept them and our own unwillingness 

to sanction the offending countries. In order for the Federal Government to achieve effective immigration enforcement, the State 

Department must change their position on how to deal with this 

issue. 

The Department of Justice, which oversees the Executive Office 

of Immigration Review, has looked to improve their performance, 

and while I applaud their effort to improve the efficiency of the 

hearing process, I can recall significant delays imposed by immigration judges as well as cases pending many years before the 

Board of Immigration Appeals. And these lengthy delays have contributed to the growing number of fugitive aliens living in the 

United States who are currently being sought after for removal. 

Any improvement to reduce unnecessary delays in the courts and 

in the removal process will, without infringing on the due process 

of individuals, always serve to enhance the Government’s ability to 

achieve effective and efficient enforcement of our immigration laws. 

I am very appreciative of the Committee’s efforts to highlight 

this I municipality issue, and I thank you for the opportunity to 

29

testify before you today. I look forward to answering any questions 

you may have for me at this time. 

[The prepared statement of Mr. Venturella appears as a submission for the record.] 

Chairman CORNYN. Thank you very much. 

Mr. Gelernt? 

STATEMENT OF LEE GELERNT, SENIOR STAFF COUNSEL, IMMIGRANTS’ RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES 

UNION, WASHINGTON, D.C. 

Mr. GELERNT. Thank you. Chairman Cornyn, Chairman Kyl, 

Senator Coburn, thank you for the opportunity to testify today. My 

testimony will focus solely on Federal court review of deportation 

orders and the issues raised in the Supreme Court decision in St. 

Cyr. That decision made clear that immigrants, including those 

with past criminal convictions, are entitled to meaningful court review. At a minimum, the Court stressed they are entitled to habeas 

corpus review, protected by the Suspension Clause of the Constitution. 

I want to make two basic points in summarizing my testimony. 

The first point is I want to stress the complexity and far-reaching 

importance of the issues raised by the St. Cyr case. Those issues 

transcend the immigration field and go to the very heart of who we 

are as a country, a country which can now count more than two 

centuries of unwavering commitment to the rule of law and to the 

Great Writ of Habeas Corpus. 

In light of the complexity and historic importance of the issues, 

any legislation by the Congress in this area will necessarily raise 

profound constitutional questions as well as difficult questions of 

immigration policy and court administration. We thus respectfully 

urge Congress to give any new proposals in this area the most 

careful and deliberate consideration and to dismiss out of hand any 

proposals that would eliminate habeas corpus for immigrants facing deportation. No Congress—no Congress in the history of this 

country—has ever eliminated habeas corpus for immigrants facing 

deportation, and this Congress should likewise reject any proposal 

that would take that extraordinary step. 

As the Court made clear in St. Cyr, immigrants are entitled by 

the Constitution to meaningful review. 

My second point is that, in our view, the various attacks that 

have been leveled against St. Cyr decision are misplaced. Insofar 

as there are concerns about the increased number of cases in the 

Federal courts, those concerns are, in our view, more appropriately 

directed at the Attorney General’s decision in 2002 to eliminate any 

meaningful administrative appellate review by the Board of Immigration Appeals, the BIA, a decision which has shifted much of the 

burden to the courts and left the courts with the task of providing 

the only real check on erroneous decisions by immigration judges. 

Let me conclude with a more general point about the role of the 

courts in the immigration system, namely, that oversight is critical 

to the proper functioning of a fair system. Judicial review may 

seem at times like a technical abstract concept to many people, but 

in practice, the courts play an indispensable role in enforcing the 

rule of law and preventing grave instances of injustice that would 

30

otherwise profoundly and inalterably change the lives of countless 

immigrant families and their children. At the end of the day, it is 

critical that the lives of these children and individuals not be lost 

in a blur of aggregate statistics and abstract policy arguments. 

Jerry Arias-Agramonte, for example, is someone who benefited 

from having court review in his case by habeas corpus. He came 

lawfully to this country as a teenager in 1967. His parents were 

U.S. citizens. He has six U.S. citizen children, one of whom served 

in the military. In 1977, he pled guilty to a drug offense in the fifth 

degree, for which he received a sentence of probation. Nearly 20 

years later, on the basis of this conviction for which he received 

only probation, he was placed into removal proceedings and subject 

to mandatory deportation. He filed a habeas petition and a court 

found that his deportation was, in fact, unlawful. But for the existence of habeas review, but for the existence of the courts, he would 

have been deported from a country in which he had lived for more 

than 30 years and likely been separated from his U.S. citizen family. 

Significantly, for many immigrants it is the very right to go before a neutral judge that in their minds differentiates the United 

States from other countries that lack same commitment to the rule 

of law. They feel viscerally what Justice Frankfurter observed long 

ago—that ‘‘[t]he history of American freedom is, in no small measure, the history of procedure.’’ And no procedure has been more integral to preserving freedom in this country over the past 200 years 

than the Great Writ of Habeas Corpus. 

Finally, let me say the ACLU, of course, recognizes the authority 

of Congress to regulate immigration and entry into the United 

States. Our point today is that the process for determining who is 

subject to removal must be fair and efficient to ensure that immigrants who have a right to remain are not deported erroneously 

and that the removal system is subject to checks and balances. 

Thank you. 

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

for the record.] 

Chairman CORNYN. Thank you very much. We will now proceed 

with a round of questioning. 

Mr. Gelernt, let me start with you, please. As I understand it, 

a non-criminal alien case would originally go before an immigration 

judge who would determine his/her rights and would provide that 

initial level of judicial review. If the case went against the alien, 

then she/he would have a right to appeal to the Board of Immigration Appeals. And then, finally, they would have a right to appeal 

to the court of appeals. Is that correct, sir? 

Mr. GELERNT. Yes, Senator. 

Chairman CORNYN. But what the St. Cyr case dealt with was an 

additional review, and that is by virtue of a writ of habeas corpus. 

Is that correct? So, if I understood Mr. Cohn’s argument earlier, he 

said that the criminal aliens get an additional layer of review that 

non-criminal aliens don’t, and by that I understood him to mean 

that habeas corpus review, in addition to the review before an immigration judge, Board of Immigration Appeals judge, and then the 

court of appeals, that that would be more than a non-criminal alien 

31

would get. Did I understand that correctly? And, if I did, do you 

agree with that? 

Mr. GELERNT. Senator, I do not agree with that completely, but 

there are parts of DOJ’s testimony with which we do agree, and I 

want to be very clear about the ACLU’s position. 

The habeas review that resulted after 1996 and after the St. Cyr

decision was the result of the 1996 court-stripping provisions and 

the gloss DOJ put on them and the Court’s decision. 

What happened in St. Cyr is that DOJ took the position that 

there was no review for Mr. St. Cyr in any court, in the court of 

appeals or the district court. And just to be clear, because DOJ 

brought up our briefs in that case, we made it absolutely clear to 

the Supreme Court that we wanted one bite at the apple. We wanted one judicial determination. We were willing to take that in the 

court of appeals or in habeas corpus. 

The Supreme Court looked at it and said, well, the 1996 courtstripping provisions have cut you out of the court of appeals; DOJ 

says that as well; the only thing left for you is habeas. 

Chairman CORNYN. Okay. Thank you for that clarification. 

Mr. GELERNT. And— 

Chairman CORNYN. I am sorry. I did not mean to cut you off. 

Mr. GELERNT. I just wanted to make one additional point. 

So what we are saying is that we want one judicial determination. That judicial determination can be in the court of appeals, but 

it must be a full judicial determination and there must be a safety 

valve, which, as I understand DOJ’s witness to say, he understands 

the REAL ID Act not to have that safety valve at the moment. He 

quibbles with where we would put the safety valve, and that may 

be a discussion we can have. But he does not quibble with the fact 

that there is no safety valve. 

Chairman CORNYN. So your position—if I am clear and you 

please just tell me if I am wrong—is that as long as there is at 

least one opportunity for judicial review, the ACLU would be satisfied, whether that is in the court of appeals or by writ of habeas 

corpus. 

Mr. GELERNT. That is right, sir, as long as it was a full bite at 

the apple in the court of appeals. 

Chairman CORNYN. And that would be within Congress’ power by 

writing a clear statute to provide that review. That would not be 

unconstitutional in your view. That would be within the protections 

provided under the Constitution. 

Mr. GELERNT. As long as it was a full bite at the apple in the 

court of appeals, one judicial determination, and we do not believe 

that you could eliminate habeas corpus as the safety valve. But it 

would not—and this is the critical point here, Senator, because I 

want to be clear, because it is a technical, difficult issue. Habeas 

corpus needs to be there, in our view, as the safety valve. It does 

not need to be the primary avenue of review. 

What happened after St. Cyr is that it became the primary avenue, so everyone went to habeas corpus. You can channel all review, criminal aliens and non-criminal aliens, to the court of appeals, and that is where it would go. The only thing we are saying 

habeas needs to be there for is as a safety valve for those rare 

cases in which someone cannot get into the court of appeals 

32

through no fault of their own. For example, an unscrupulous lawyer tells them they are going to file within 30 days in the court of 

appeals, they do not do it, the Government does not give them notice of the decision. So those rare cases that cannot go to the court 

of appeals, but that will be seldom used, just like it was between 

1961 and 1996. So it needs to be there as a backstop, as a safety 

valve, but for the most part, every case would go to the court of 

appeals, criminal and non-criminal, and that is okay with us. 

Chairman CORNYN. Well, I understand what you would expect to 

be the course of legal review, judicial review, but what you are saying is you do not think under the Constitution that Congress can 

eliminate habeas corpus and provide the sole judicial review in the 

court of appeals. Is that right? 

Mr. GELERNT. Not as a backstop. I think— 

Chairman CORNYN. So, that sounds like two levels of review to 

me. 

Mr. GELERNT. No, because—let me be very clear, Mr. Chairman. 

The alien would not get to go to habeas corpus if they got to the 

court of appeals, and that means that almost every alien will never 

get to go to habeas corpus. They will not get to use habeas corpus 

like they do in a criminal case where they will get review somewhere else and then go to habeas. 

If they get review in the court of appeals and the court of appeals 

reviews their case, they cannot go to habeas after that. The only 

time they could use habeas is if for some reason that is not their 

fault they do not get in the court of appeals. For example, they 

never get notice of a BIA decision, so they do not file in the court 

of appeals within 30 days, and it was not their fault that they 

didn’t get notice. Those rare cases where they did not get judicial 

review in the court of appeals, they could go to habeas. But the 

vast, vast majority of cases will go to the court of appeals. The 

court of appeals will review it. They cannot then go to habeas after 

that. 

Chairman CORNYN. Thank you. 

Senator Kyl? 

Chairman KYL. Thank you, Senator Cornyn. I do appreciate that 

clarification. 

I gather that—and you heard the testimony about what at least 

I would characterize as an unacceptably high number of people 

with pretty horrible criminal backgrounds, at least as articulated 

by the earlier panel. And I gather it would be your view and 

ACLU’s view that legislation from the Congress would be appropriate to try to prevent them from continuing to at least have the 

opportunity to prey on American citizens. Is that correct? 

Mr. GELERNT. Senator, there are proposals out there that we 

have seen that we believe are constitutionally deficient. There may 

be other proposals that the Congress wants to consider to make 

things more efficient, and we would be happy to give you our views 

on those. 

We are not opposing making a system more efficient, but what 

we are saying is that we cannot have a system where every immigrant does not get meaningful judicial review. 

Chairman KYL. What I am trying—because ACLU has been an 

organization over the years that has at least portrayed itself as 

33

fighting for the little guy, making sure that people who are not otherwise protected can get protection in our system, certainly victims 

of crime frequently fall into that category. And I would think that 

ACLU would be very concerned about victims of crime. And to the 

extent that we have an ability here to prevent further victimization 

of people in our society by people who should be treated—or should 

be dealt with in our system, I guess what I am asking is not 

whether you would have any objection to it but whether you would 

support our trying to find a constitutional approach to accomplish 

the objective. 

Mr. GELERNT. Senator, we would support making the system 

more efficient as long as it was constitutionally sound and fair on 

both sides. 

Chairman KYL. Thank you. 

Mr. Venturella, how would you characterize the security hazards 

to the United States of the catch-and-release practice? And how 

much does DHS know about those who are caught and released in 

terms of that kind of threat? 

Mr. VENTURELLA. Well, I think very little is known about the individuals who the Border Patrol encounters. As Mr. Cerda outlined, 

there are record checks that are done, fingerprints are captured, 

but many of these individuals are not in any known databases. So 

I think that is a vulnerability. 

Chairman KYL. That is a problem. 

Mr. VENTURELLA. That is a problem. 

Chairman KYL. With your background at INS and DHS, you 

probably have formed some views as to the likelihood that terrorists could cross our borders and be in the interior of the United 

States undetected, about our vulnerability to that kind of a threat. 

How would you characterize that? 

Mr. VENTURELLA. Well, I think the vulnerability is high. Again, 

because individuals can come across our borders, can make many 

attempts and be successful on latter attempts, I think it is a real 

high exposure. And, again, you have to look at not the origin or the 

nationality of the individual, but the fact that somebody can get 

through your border and then blend into your society without very 

little difficulty is scary. And so regardless if it is a terrorist or not, 

individuals can come to the United States on many attempts, break 

in, and then live amongst ourselves. And that I think is difficult 

from an immigration enforcement perspective. You are trying to 

create deterrents, and without those in place, it is very disheartening for an individual charged with enforcing the laws. 

Chairman KYL. Secretary Rumsfeld made the point—and it has 

been picked up by others in conjunction with the review of the 9/

11 tragedy—that sometimes we do not stop to think about the fact 

that we do not know what we do not know. And with respect to 

knowing who these maybe 11 million illegal immigrants residing in 

our country today, maybe more, it is hard to know how many of 

them might be involved in terrorist cells. And what you are saying 

right now is it is almost impossible to know because you do not 

know who has gotten across the border that we have not been able 

to apprehend. Is that correct? 

Mr. VENTURELLA. That is correct. 

34

Chairman KYL. And that is a scary thought, and this is a problem—speaking to something Senator Coburn was talking about 

earlier—both at the border itself and the interior, because as our 

first hearing noted we have to deal with these problems of border 

enforcement; but as this hearing has illustrated, we have got the 

result of that in the interior with inadequate resources to identify 

people, to detain them, and to deal with them appropriately under 

the law. 

And I would just state to everybody here, including the representatives of the ACLU, that all of us on this Committee certainly would hope that any—well, not just hope, but that we will 

ensure that any changes we make to the law will certainly be within the rule of law and be able to sustain constitutional challenges. 

That is what we are all about here, and we appreciate the testimony that both of you have provided. 

Thank you. 

Chairman CORNYN. Senator Sessions? 

Senator SESSIONS. Mr. Venturella, the Washington Times article 

I referred to earlier said the Federal authorities released 11 illegal 

aliens. ‘‘‘The 11 passengers were processed and released,’ said the 

spokesman for ICE. ‘It is up to them whether they come back.’’’ 

And a delegate from Fairfax County said, ‘‘The officer does not 

have authority to detain them for a Federal offense. You get your 

hands on them, you have no authority to do anything.’’ 

Well, I think that is the perception, but it is not exactly correct, 

is it? They do have authority to detain someone in most instances 

unless it is prohibited by State law. Is that correct? 

Mr. VENTURELLA. That is my understanding. 

Senator SESSIONS. All right. But what I am hearing from my police officers—and there are very few ICE agents in the State—is 

that nobody will come and pick them up if they were to detain 

them. They have been told, ‘‘If you don’t have more than 15,’’ I was 

told several times, ‘‘don’t bother to call us.’’ So they don’t even call 

ICE. So that is the reality of what is happening out there. 

Would you walk through for the American people a little bit what 

happens now? Someone is apprehended by a Federal immigration 

officer, let’s say, or referred to them by a State, and then they process them. Do they have to be released on bail? What happens after 

that? 

Mr. VENTURELLA. Well, I think as Mr. Cerda pointed out, basically it is determined on a couple of things. One, are they subject 

to mandatory detention. In most cases, if an individual has not 

been convicted of a crime and has been encountered by local law 

enforcement, the chances are they are not subject to mandatory detention. 

Senator SESSIONS. Not? 

Mr. VENTURELLA. Not subject to mandatory detention. 

Senator SESSIONS. Okay. 

Mr. VENTURELLA. So they have discretion to release. 

Senator SESSIONS. All right. Now let me just follow up on that 

point. So if they were arrested for an armed robbery or a crime but 

had not been convicted, that would not be a mandatory detention 

under the immigration law. Is that right? 

35

Mr. VENTURELLA. If there is no conviction. However, I think a 

circumstance like that would be rare. They would go through the 

State or local criminal justice process. 

Senator SESSIONS. The State may hold them on their own bail. 

Mr. VENTURELLA. Correct. 

Senator SESSIONS. But let’s say the offense was a little less severe. Let’s say it is some sort of theft that routinely people would 

not be held without bail, but they were here illegally. As a matter 

of policy, would they still be released on the immigration charge? 

Mr. VENTURELLA. They would be a high priority for release barring any other criminal convictions. 

Senator SESSIONS. Now, who issues the release? Do they sign a 

bond or bail, or how do they get released? 

Mr. VENTURELLA. There are various forms of release. 

Senator SESSIONS. And who is it that they go before that issues 

this release order? 

Mr. VENTURELLA. It is currently a field director for the detention 

and removal offices. They have the authority to release an individual, whether it be on a monetary bond, on their own recognizance, on orders of supervision. So there are various ways to release an individual from custody. 

Senator SESSIONS. And so that is how we get 400,000-plus that 

have been released in some form or fashion at some stage who did 

not show up, right? 

Mr. VENTURELLA. That is one way. The other way that has not 

been talked about are individuals who may apply for a benefit, an 

immigration benefit. They get denied that benefit, and they are 

issued a notice to appear before an immigration judge. 

Sometimes enforcement officials never see these individuals. 

They never encounter these individuals. We talked about the lack 

of cases at NCIC. There is no biographic information on these individuals to enter into NCIC. 

So, yes, some of them we do arrest, and some of them are released by our immigration authorities. But some individuals get 

into the system that we never see. 

Senator SESSIONS. If you arrest somebody, a county judge or a 

U.S. Senator, for a DUI, they take your fingerprints and they get 

your identification before they let them go on bail. You do not do 

that for people that are detained who are not citizens? 

Mr. VENTURELLA. People who are arrested by immigration authorities, yes, fingerprints are taken, all of the biometrics. But 

what I am saying is an individual can make a paper application 

for an immigration benefit, get denied that benefit— 

Senator SESSIONS. Do you know how many, what percentage of 

the 400,000 that is? 

Mr. VENTURELLA. A significant number. I could not give you a 

percentage. 

Senator SESSIONS. So now if they are ordered to appear to something, what are they ordered to appear for? They are released on 

bail, and they are given an order to appear for some hearing. Who 

do they go before? 

Mr. VENTURELLA. They go before an administrative immigration 

judge to contest the removal charges that have been lodged against 

them. 

36

Senator SESSIONS. And do you have trials often? Or they just do 

not show up? Or do they confess? Or what routinely happens? 

Mr. VENTURELLA. Well as Mr. Cerda pointed out, 30 percent of 

the individuals do not show up for their hearing. Many people do 

show up for their proceedings, but then at the end, when there is 

a negative result, then they do not comply with that order. 

Senator SESSIONS. So that is when they—most show up for the 

trial or the hearing, but after they have been found here illegally 

and ordered deported, that is when they do not come back. 

Mr. VENTURELLA. The compliance goes down. 

Senator SESSIONS. So if you find somebody here and they are ordered deported, they do not go that day? So you say go on out here 

back into the community and we will call you back when we want 

you to leave? Is that basically what it is? 

Mr. VENTURELLA. I would not oversimplify that process, but certainly they are allowed an opportunity to remain out of custody 

while the immigration service or the immigration bureau arranges 

for their removal. However, if they are arrested and they have a 

removal order, then their detention is mandatory under the INA. 

Senator SESSIONS. So just an arrest after that would have a mandatory— 

Mr. VENTURELLA. Yes, it would trigger that. 

Senator SESSIONS. I do not want to use up too much time. I was 

about to finish this line of questioning. 

And so the biggest problem then would appear to me to be people 

who abscond after they have had a hearing and after there has 

been an adverse finding that they are here illegally. And normally 

in the process of these kind of cases, it seems to me there would 

be a much higher likelihood and more appropriate for bail to be denied then than at the beginning. Would you agree? 

Mr. VENTURELLA. I would agree, and those individuals are not 

subject to—or are not allowed to post bond in those cases. As I 

said, their detention would be mandatory. 

Senator SESSIONS. Excuse me. I am just saying on all these routine cases where they have been detained, released, asked to come 

for the hearing, they come to the hearing, and the judge finds that 

they did not commit a crime but they are in violation of immigration law and must be deported, it is after that that we have the 

highest rate of absconders? 

Mr. VENTURELLA. That is correct. When I was the Acting Director, we had initiated a pilot where we placed immigration enforcement officers in the courtroom, so when there was a negative finding, we could take them into custody at that point. I don’t know 

the results of that pilot since I have left. 

Senator SESSIONS. Did you have some numbers from that pilot 

program? 

Mr. VENTURELLA. It was a very small pilot, but I would say that 

pointed to a success because individuals were taken into custody. 

Obviously, the absconder rate went down and the removal rate 

went up. 

Senator SESSIONS. Well, I do not want to go on too long, but I 

just would say I think that is probably the weak link here. Once 

you have had a finding that they are here illegally by an administrative officer after some sort of hearing, that is when we need to 

37

have some space to hold them temporarily until they can be deported. And the system needs to be—if they have got a defense that 

they can make, let them have it. If they do not have a defense, it 

ought to be quickly, because every day you detain them is a cost 

to the taxpayers. And the sooner the deal is done, the better for 

everybody, their families and everybody else. 

Thank you, Mr. Chairman. 

Chairman CORNYN. Senator Coburn? 

Senator COBURN. Thank you, Mr. Chairman. 

Mr. Gelernt, what does a ‘‘full bite of the apple’’ mean in terms 

of the appellate court? Does that mean full appellate court review 

or representative appellate court review? 

Mr. GELERNT. Senator, in our view what it means is that—and 

this is where I think there is another disagreement with us and 

DOJ. It means that the alien will be able to raise claims that his 

deportation order violates the Constitution, so-called constitutional 

claims; that he can raise so-called pure questions of law, what exactly is the legal standard in the statute. And the third type of 

claim that he needs to be able to raise, under the St. Cyr analysis, 

at least, is the application of a lot of facts, so-called mixed questions of law. And let me just flesh that out a little bit because what 

we are really saying, I hear DOJ saying, is they would cut it off 

after the first two, at pure constitutional claims and pure questions 

of law. What that means is that the court in the first couple of 

cases would announce a legal standard. But then every time the 

administrative court applied that legal standard in a case and got 

it wrong, applied that standard wrong, there would be no judicial 

review whatsoever. So you would have torture cases, asylum cases, 

any number of cases where basically the administrative court could 

water down the statute to nothing so it did not even come close to 

reflecting Congressional will and there would be no review. And St. 

Cyr made absolutely clear that it has to be the interpretation or 

application of a statute that has been reviewable historically in habeas. So that is what we are basically saying. So it may seem like 

a technical point, but I think it practice it will be very important. 

The other thing I would just stress about it is that if the DOJ 

is going to try to slice it up like this and take that position, the 

line between pure questions of law and mixed questions of law is 

not a bright one, it is blurry. It is going to engender years and 

years of litigation on that ancillary point and prevent the courts 

from simply reviewing deportation orders that may, in fact, be 

sound and they could rid of the case quicker. Instead, we are going 

to have another St. Cyr situation. We are going to have 5 years of 

unnecessary litigation. And I would just ask DOJ why they are insisting on the word ‘‘pure’’ qualifying questions of law in the REAL 

ID Act. 

Senator COBURN. Well, they are trying to keep you busy on that 

so we can do something— 

Mr. GELERNT. Right, right. 

Senator COBURN. I am sure that is the case. 

Mr. Venturella, first of all, thank you for your years of service 

to our country. I am going to ask you the same question I asked 

the previous panel. You know, you have got to feel like Bill Murray 

when you work over there when every day is the same day because 

38

no matter what you—if you did your job perfectly, without a 

change in the border, you would never lessen the number, because 

as soon as you deport them they come back, even though they are 

convicted. The only ones that do not come back are the ones we end 

up incarcerating, correct? 

Mr. VENTURELLA. Correct. 

Senator COBURN. That we do not deport. And I would just say, 

you know, during your time, what was your experience in terms of 

the feedback? You know, this is not something we cannot do. It is 

something we have chosen politically not to do. What was the response you got? 

Mr. VENTURELLA. Well, it was very frustrating. Again, as I point 

out in my testimony, you did not have people looking at this as continuum. It is a process. It is apprehension. It is the hearing process. It is the removal process. 

But they did not look at it that way. They looked at pieces. Okay, 

let’s put more people on the border, but not give the Department 

of Justice enough attorneys or us in Detention and Removal 

enough detention space. 

And then at the tail end of it, where was the leverage to remove 

these people? Where was the will to remove these people from the 

United States? 

So, yes, as I pointed out, Border Patrol agents would arrest several people that day, just to see in that afternoon sending them to 

the bus stop in Laredo and allowing them to go north and elsewhere, it is frustrating. 

Senator COBURN. You know, it is interesting. Being from Oklahoma, a relatively small State, the compassion of the people of 

America is great because we all recognize we at one time, other 

than Native Americans in Oklahoma, who are foreigners to Oklahoma because they came from the East Coast, but we all were immigrants. And the compassion out there is tremendous. What there 

is no compassion for is the ineptitude of the Federal Government 

now to recognize the sequential order, that you have to fix all parts 

of this. But the first part you have to fix is to put the emphasis 

on where it is coming from. 

You know, everybody recognizes the contributions of the Hispanics that are coming to this country today. They are making 

wonderful contributions. But that does not displace the fact that we 

are undermining our own legal system when we fail to enforce the 

last. I don’t know how you did what you did for the number of 

years that you did it, and I look forward to visiting you on the side 

just to get some insight. 

Mr. Chairman, thank you. 

Chairman CORNYN. Thank you, Senator Coburn. 

Mr. Venturella, I want to follow up a little bit on what Senator 

Sessions was asking. I believe he referred to the weak link after 

people have their hearings, then 85 percent do not show up after 

that. Did I understand that correctly? 

Mr. VENTURELLA. Eighty-five percent fail to comply with a removal order. 

Chairman CORNYN. A removal order, okay. Well, we have talked 

about the 30-percent figure of people who do not show up for their 

deportation hearing in the first place, and I know it gets a little 

39

confusing because then we say once you had a hearing, 85 percent 

do not comply with that. But, as I tried to indicate earlier, there 

is a lot of variability; that that 30 percent who do not show up for 

the first hearing, there is a lot of variation in the country. I mentioned that in Harlingen approximately 85 percent do not even 

show up for the first hearing. So, we never get around to being part 

of that group that does not show up for the second hearing. 

Senator SESSIONS. I think that would be more than 100 percent. 

Chairman CORNYN. Surely it is not more than 100 percent, but 

I am not smart enough to figure out what the percentage is. 

Anyway, I think here again, sort of responding to Senator 

Coburn’s frustration, the purpose of this hearing I think is in large 

way to look at what the problem is, and hopefully in subsequent 

hearings we will look at some solutions. 

But you talked about a holistic enforcement strategy, and in your 

opinion, what are some of the factors that need to be enhanced to 

ensure that we are not perpetuating a revolving door policy within 

the Department of Homeland Security’s detention standards or the 

way we handle deportation after their final orders, they have basically exhausted all of their judicial review? 

Mr. VENTURELLA. Well, I think first and foremost you have to 

have a strategy. You have to have an objective and say this is what 

we want to do. And that has not been clear. In my 18 years as a 

Federal law enforcement officer, I did not know what the Nation’s 

immigration policy was, in particular in enforcement. So I think 

you have to start from the beginning. What is your strategy? What 

is your objective? And then execute that. 

But, again, we do need to look at this holistically. We talk about 

securing our borders, but we also look beyond our borders and how 

can our relationships with other countries that are significant transit points, how can we improve that we lessen the flow? Because 

people just do not come across our borders. They come through our 

ports of entry at airports and seaports as well. So we do need to 

expand beyond just our borders. Then, of course, the resources provided to the Border Patrol, provided to our litigation assets, and to 

our removal assets. But we do need to look at it holistically, and 

it hasn’t. Only bits and pieces have been resourced, while other 

programs in other areas or departments have suffered. And now 

you see 400,000 absconders, now you see a million people going 

through the immigration process, and you see hundreds of people 

being released every day because it is out of balance. 

Chairman CORNYN. Well, I appreciate that comment, and I certainly would agree with you that that is something that has been 

missing that hopefully we will achieve in the not-too-distant future, 

and that relates to enforcement. 

But I have also been struck, in looking at immigration, by how 

much there are other issues that are intertwined in that. For example, the economy of Mexico or Central America, if people could 

find good-paying jobs there, it just stands to reason that they 

would find less need, there would be less desire to leave their native country and to come to the United States and find that job so 

they can provide for their family. And, I think we all understand 

that impulse, and, frankly, that is something I think we need to 

address as well, perhaps even by our trade policies. 

40

I remember in Guatemala at the Ambassador’s residence we 

were talking about the Central American Free Trade Agreement, 

and one gentleman from Guatemala said, ‘‘We want CAFTA to pass 

because we want to be able to have markets in the United States 

for our goods and services that we have that come from here.’’ He 

said, ‘‘We want to export goods and services and not people.’’ That 

resonated with me, and it really touched on the issue that we are 

dealing with here as well. 

So, I certainly agree we need that coherent and holistic enforcement strategy, but we also need to look at the economic issues, including international trade issues. It just seems like there is hardly 

an issue—certainly our international relationships with other countries—that this does not touch and that enforcement is just a part 

of it, but certainly not the end-all, be-all. 

Let me ask you, Mr. Venturella, I had the experience recently of 

flying with a Border Patrol agent in Laredo, Texas, down the Rio 

Grande River. You could clearly see obviously both sides of the 

river, Mexico and Texas. And I was impressed as we flew over the 

international bridges how orderly and relatively smoothly we were 

processing people and goods that were attempting to comply with 

our laws, how well that was going. But I was also rather struck 

by what was happening between the bridges. And there were cameras on large columns. There were occasional Border Patrol agents. 

I asked this helicopter pilot, this Border Patrol agent, I said, ‘‘What 

do you need that you do not have in order to do the job?’’ And he 

expressed some of the frustration that you did and saying that, 

‘‘Well, because there is so much going on in the Arizona border, we 

have a lot of our people and our equipment being shipped over to 

Arizona, leaving us even less well equipped and outmanned in 

terms of what we are able to do here.’’ 

In your 18 years of experience in enforcing immigration laws, 

what do you think we need to do to fully equip our agents so they 

can do the job that we ask them to do every day and to give them 

a reasonable chance of success? 

Mr. VENTURELLA. Well, it is hard for me to speak for the Border 

Patrol since I was never a Border Patrol agent. But in the capacity 

that I served and seeing the consequences of not resourcing your 

apprehension assets as well as your removal assets, I would think 

one of the most important things to look at is ensuring that you 

have enough detention resources. The reason why people come 

across repeatedly is because there is no consequence for that action. They get through. If they get arrested, chances are they will 

get released if they are not a Mexican national. DHS has some priorities on specific nationalities, but others, if there is no negative 

information contained in databases, which nine times out of ten 

there is not, they are released. 

And so, therefore, it is worth doing this two, three, four, five 

times until I am able to be released into the United States, and 

then I can live in society, I can get a job, and not have to worry 

about the consequences of a removal order or consequences of immigration officers coming after me. 

Again, it is the needle in the haystack. It is just overwhelming. 

And the frustration that officers feel every day is something I felt 

very strongly at the end of my career. 

41

Chairman CORNYN. Well, I know we could go on for a long time 

because this is a very interesting and important subject. But, we 

are not going to. We are going to bring it to a close here. I know 

Senator Sessions and I and others have some important meetings 

on other matters before the Judiciary Committee. 

Senator Leahy has provided a statement that, of course, will be 

made part of the record. There is also a statement from MALDEF, 

and without objection, those will be made part of the record. 

It may be that we will think of some other questions, or more 

likely our staff will help us think of some questions we will want 

to submit to you in writing. So, we would ask for you to receive 

those and respond. We will try not to burden you too much with 

that. But, on behalf of both Subcommittees, I would like to thank 

these two witnesses and our other two witnesses for their time and 

testimony. 

We will leave the record open until 5:00 p.m. next Thursday, 

April the 21st, for members to submit additional documents for the 

record and to ask questions in writing of any of the panelists. 

And with that, this— 

Senator SESSIONS. Mr. Chairman? 

Chairman CORNYN. Senator Sessions. 

Senator SESSIONS. I would just congratulate you on having this 

hearing. You are a former Supreme Court Justice, Attorney General in Texas. You are committed to the rule of law, and I know 

this is frustrating to you, as it is to me as a prosecutor. But you 

also chair our Subcommittee on Immigration. You are looking at 

the entire panoply of issues. You know the human factors that are 

going on out there with families that are here and have been here 

for long periods of time, the economic issues that are at stake and 

all the complexities. And I thank you for your leadership. I think 

if people would listen to what you are saying and where you are 

suggesting we head, I think they would be better off in a lot of the 

directions that are being considered now. 

As a matter of fact, as we go further in this debate—and I suspect we will—I believe the suggestions you are making are going 

to be more and more relied upon. 

I would thank our witnesses. We are a Nation of immigrants. My 

remarks dealt with enforcement today because that is what this 

hearing was about, because I was a prosecutor myself in the Federal Government for a long time, and it does pain me to see us be 

so dysfunctional. 

On a positive note, my mental vision is it is like we jump across 

a 10-foot gap and we go 9 feet and we fall in the hole. So many 

things we do—Mr. Venturella would, I think, probably agree—if we 

do just a little better and go a little further, we would close that 

gap, deal with that problem, and then the next one and the next 

one and the next one. And I will say this: If we do better on the 

border, better inside the border, not with huge amounts of extra effort but just some better leadership and direction and some more 

money, we can make more progress than people think. Would you 

agree, Mr. Venturella? 

Mr. VENTURELLA. I would agree 100 percent. 

42

Senator SESSIONS. This is not a hopeless deal if we all—and we 

have better laws to begin with on who should come in and in what 

circumstances. 

So thank you for your leadership. 

Chairman CORNYN. Well, thank you, Senator Sessions. 

Ladies and gentlemen, with that, this hearing is adjourned. 

[Whereupon, at 4:44 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Note: The responses of Mr. Cerda to questions submitted by 

Senators Cornyn, Kennedy, and Kyl were not available at the time 

of printing.]

43


22332.069
44


22332.070
45


22332.105
46


22332.106
47


22332.072
48


22332.073
49


22332.074 22332.075
50


22332.076
51


22332.077
52


22332.078
53


22332.079
54


22332.080
55


22332.081
56


22332.093
57


22332.094
58


22332.095
59


22332.096
60


22332.001
61


22332.002
62


22332.003
63


22332.004
64


22332.005
65


22332.006
66


22332.007
67


22332.008
68


22332.009
69


22332.010
70


22332.011
71


22332.012
72


22332.013
73


22332.014
74


22332.015
75


22332.016
76


22332.017
77


22332.018
78


22332.019
79


22332.020
80


22332.021
81


22332.022
82


22332.023
83


22332.024
84


22332.025
85


22332.026
86


22332.027
87


22332.028
88


22332.029
89


22332.030
90


22332.031
91


22332.032
92


22332.033
93


22332.034
94


22332.035
95


22332.036
96


22332.037
97


22332.038
98


22332.039
99


22332.040
100


22332.041
101


22332.042
102


22332.043
103


22332.044
104


22332.045
105


22332.046
106


22332.082
107


22332.083
108


22332.084
109


22332.085
110


22332.086
111


22332.087
112


22332.088
113


22332.089
114


22332.090
115


22332.091
116


22332.092
117


22332.047
118


22332.048
119


22332.049
120


22332.050
121


22332.051
122


22332.052
123


22332.053
124


22332.054
125


22332.055
126


22332.056
127


22332.057
128


22332.058
129


22332.059
130


22332.060
131


22332.061
132


22332.062
133


22332.063
134


22332.064
135


22332.097
136


22332.099
137


22332.100
138


22332.101
139


22332.102
140


22332.103
141


22332.104
142


22332.065
143


22332.066
144


22332.067
145

Æ


22332.068